What qualifies as ‘advance notice’ under the Mine Act?

A bedrock principle of the Mine Act is the prohibition against providing advance notice of a Mine Safety & Health Administration (MSHA) inspection.

Section 103(a) of the Mine Act specifically states that “[i]n carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any person.”

The basis for Congress’ inclusion of this provision was a prevalent experience in the coalfields in the period preceding the 1977 law of persons calling up to the mine to let them know that inspectors were on their way. This practice, of course, would enable the mine operator to change conditions or activities to avoid citations and penalties.

At underground coal mines, MSHA says this practice regularly involved personnel calling underground to miners, alerting them that inspectors arrived and were on their way. Given the amount of time it could take for inspectors to get to the working section, conditions related to ventilation and dust could be completely altered.

This scenario led to an MSHA technique known as “capture the phones,” where an MSHA inspector would remain on the surface and monitor all phone communications in order to prevent advance notice while the rest of the inspection team traveled underground.

That was the very situation in a recent case before the 6th U.S. Circuit Court of Appeals, decided in May, where personnel at an underground coal mine had a discussion following MSHA’s arrival in which an individual underground asked: “Do we have any company outside?”

The outside dispatcher responded: “Yeah, I think there is.”

An MSHA inspector, however, was monitoring the mine phone. MSHA alleged that this was a coded message providing advance notice and issued a citation. The issue before the 6th Circuit was primarily focused on whether this enforcement was an infringement on free speech under the First Amendment. The court found that it was not.

Although these types of cases still arise, aggressive enforcement of section 103(a) during the first decade of the Mine Act led to a steady decline in advance notice violations in the 1990s, 2000s and 2010s. But recently – although anecdotal – enforcement actions alleging advance notice appear to be making a resurgence.

Although not nearly matching early Mine Act levels, this increase seems to be related more to a heightened sensitivity by inspectors. This is especially evident in situations where inspectors suspect operators are trying to “get out in front of the inspection” in order to get issues resolved before the inspector gets to a particular area.

For instance, a supervisor, on the second day of what turned out to be a three-day MSHA inspection, said to his yard crew that “based on the pace of the inspector and where he is right now, I would think that he is going to get to the storage yard by the end of the day. Let’s get some people over there to examine it and see if anything needs to be cleaned up.”

The inspector did, in fact, get to the yard at the end of the day and, in talking with personnel who were still there conducting housekeeping, learned they had been sent there by the supervisor who anticipated where the inspector might be headed. A citation alleging a 103(a) violation was issued.

Is that advance notice? The inspector had been on the property for a day-and-a-half. The supervisor certainly was not alerting anyone to MSHA’s presence. Mine operators have the right to assign tasks with the knowledge that it might avoid a citation. The sticking point for the inspector seemed to be that the assignment here was specifically articulated as countering MSHA’s expected route.

We also have seen situations where MSHA faults the operator for not making corrections in anticipation of the inspection continuing into subsequent days. Occasionally, an inspector will designate a citation as high negligence, claiming that the operator not making repairs or doing other cleanup or maintenance indicated a lack of care about what would be an obvious violation.

This all leads us to a logical rule of thumb for ongoing inspections. Mine operators can continue to run their operations during an inspection and assign work, which may address issues that otherwise would be cited. Operators may continue to perform regular clean-up, maintenance and other repairs even though the inspection is still ongoing. To avoid the potential for misunderstandings about the purpose of the task, operators will want to avoid making the assignment about MSHA.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

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