Section 103 of the Federal Mine Safety Act requires the Secretary of Labor to conduct frequent inspections and investigations at mines. It further states: “In carrying out the requirements of this subsection, no advance notice of an inspection shall be provided to any person.” Section 110(e) provides: “Unless otherwise authorized by this Act, any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be punished by [fine, imprisonment, or both].” A recent Senate bill would extend penalties to federal and state inspectors as well as all private persons.

MSHA Enforcement

MSHA has drastically enlarged its interpretation of “advance notice” to include all communications at a mine that would alert others to MSHA’s presence. MSHA has also markedly increased enforcement of the “no advance notice” provisions at metal and non-metal mines as well as coal mines. Security guards at mine gates have been told that they cannot even notify the safety department that inspectors have arrived. “Capturing” the mine phones and radios is often part of inspection procedure to physically prevent notice within the mine. MSHA press releases frequently make reference to this procedure—particularly in targeted “impact inspections.”

In enforcing this provision, the government can seek injunctions in federal district court, impose high civil penalties (up to $220,000 potentially per violation), and bring criminal actions—all of which are increasingly being pursued. As just one example, a recent news report (Mine Safety and Health News, March 4, 2013, at page 136) contains an item regarding David Hughart, the former president of Massey’s Green Valley Resource Group. Pleading guilty to criminal conspiracy, “Hughart admitted that he and others at Massey conspired to violate health and safety laws and concealed those violations by warning mining operations when MSHA inspectors were arriving to conduct inspections.” (A continuing investigation is being conducted by the FBI, the Department of Labor Inspector General, and the Internal Revenue Service Criminal Division. At present Hughart faces up to six years in prison and a $350,000 fine. Sentencing will be held in June 2013.)

Typically, the only way mine operators can obtain review of agency enforcement is by filing “Notices of Contest” of citations and orders before the Federal Mine Safety and Health Review Commission. Over the years, there have been a few attempts by companies to bypass the Commission and go into federal district court, but the cases have been routinely dismissed. As for seeking Commission review, it would be a serious matter for a company to give “advance notice” deliberately in order to contest a citation, but if a company were to be cited for an inadvertent “advance notice,” the citation or order could be challenged in a pre-penalty notice of contest (or a later civil penalty contest).

Permissible Communications

Notwithstanding MSHA’s enforcement of the advance notice prohibition, there are times when communications regarding an inspector’s presence are necessary and therefore permissible. As an example of necessary communications, Section 103(f) of the Mine Act provides that: “a representative of the operator and a representative authorized by his miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine.” To enable this to happen, obviously notice must be given to those who need to know, which almost invariably can be done without inspector objection. On occasion, the inspector may withhold permission—and there have been instances when this has been deemed acceptable under the law.

As a practical matter, most inspectors do not seem to be overly concerned about advance notice, unless there is a blatant disregard of the prohibition. Reasonable caution and avoidance of gratuitous comments by company personnel regarding an inspection that is in progress or about to begin can circumvent potential “advance notice” difficulties. If an inspector’s actions in any particular case appear to be unreasonable or contrary to law, this can be promptly brought to the attention of the inspector’s supervisor or the district manager. It is their supervisory obligation to make sure that mine operator rights are not abused.