February 1, 2012 1

www.spilmanlaw.com 1.800.967.8251West Virginia North Carolina Pennsylvania Virginia

ADVANCE NOTICE UNDER THE MINE ACT

ABA Occupational Safety and Health Law Committee2012 Midwinter Meeting

Sarasota, FloridaMarch 16, 2012

Mark E. Heath, MemberPhone: (304) 340-3843

mheath@spilmanlaw.comP.O. Box 273

Charleston, WV 25321-0273

What is advance notice?

Use in last three years

Role of the UBB Accident.

Penalties for advance notice

U. S. District Court Injunctions in three cases

Impact on State Law

What is 103(a)?

• 103(a) is an original section of the Federal Mine Safety and Health Act of 1977.

• 103(a) states that “[N]o advance notice of an inspection shall be provided to any person . . . .”

What is Advance Notice?

• Advance notice is now defined by simply telling somebody in the mine that inspectors are on mine property before the inspectors are able to perform their inspection.

• In MSHA’s view, this creates a problem because if the underground crew knew that inspectors were present beforehand, they may ignore violations until inspectors arrive on mine property.

MSHA 103(a) guidance

• On August 26, 2010, MSHA released Program Information Bulletin (PIB) explaining the importance of 103(a) and how they expect mine operators to comply with 103(a).

• In the PIB, MSHA warns that there are stiff consequences for anyone that provides advance notice. PIB P10-15.

Why did MSHA Issue the

PIB? • On April 21, 2010, MSHA launched inspections of 57 coal mines.

These impact inspections followed the April 5, 2010, explosion at Upper Big Branch.

• During two of the impact inspections, MSHA discovered that operators had warned miners working underground of MSHA inspectors either at or en route to the mine site.

• MSHA stated that “[m]ining personnel who give advance notice are showing contempt for the law and for the safety and health of miners . . . They know how to fix problems when the MSHA inspector is on site, yet they ignore the rules and put miners at risk the rest of the time. It’s not only illegal, it’s reprehensible.”

• In numerous publicly hearings and initial charges over UBB, allegations centered on security guards providing notice the underground mine of when MSHA arrived for inspections.

Advance Notice prior to

2010

• Advance notice was not a significant issue prior to 2010.

• Occasionally, inspectors would conduct a blitz inspection and seize the phone outside and prohibit anyone from announcing MSHA’s presence on property.– Those who violated these orders often

received personal assessments under Section 110c

Advance Notice prior to

2010

• There were a few limited cases of inspectors being prosecuted for giving advance notice to operators they were inspecting.

• In addition, there was a prosecution in western Kentucky, in which a magistrate judge ruled the statute did not apply to individual foreman.

Three Injunction cases

Manalapan Mining Co. • On April 19, 2010, two groups of MSHA

inspectors arrived to do inspections at Manalapan and Left Fork mines.

• Inspectors identified themselves to the first mine employees they saw and informed those employees that they were their to perform an inspection.

• MSHA told those employees not to give notice of their presence to the underground workers.

• The inspectors then seized the mine phones so that they could monitor any communication between the surface and underground.

• MSHA heard someone on the mine phone say “There are two federal inspectors on the property.”

• MSHA heard someone else say “Shut all belts off.” When asked why, that person said, “Because there are six federal mine inspectors on the property.”

• MSHA cited both mines for providing “advance notice” of the inspections.

• The United States District Court for the Eastern District of Kentucky found that employees at the mine did give advance notice and issued an injunction.

• The court stated that “the prohibition on providing advance notice of inspections is necessary to allow for meaningful inspections of mine conditions, which, in turn, allows the Secretary to identify and correct safety and health hazards.”

Rosebud Mining

• On August 12, 2010, MSHA conducted an impact inspection at Rosebud in Pennsylvania.

• Supervisory Inspector, Dennis Zeanchock, told the superintendent and other management not to call underground to inform anyone that MSHA was on mine property.

• The mine clerk was sitting within earshot while this conversation was going on.

• Zeanchock began listening on the mine phone in the office.

• Just moments after the superintendent left the office inspector Zeanchock heard someone paging the outside.

• He picked up the phone and heard the mine clerk say “Looks like a blitz, 4 or 5 inspectors with their supervisor.”

• The mine clerk was in the room next to Zeanchock. • The mine clerk told Zeanchock that he heard the

superintendent ordered not to call underground, but that he wasn’t ordered not to.

• Zeanchock then hears someone from the surface say “blitz” 3 or 4 more times and heard an underground foreman call out and ask if CMI Mansell was on the property.

• Zeanchock then heard someone over the phones say “Fox in the henhouse.”

• Zeanchock issued a citation to the mine operator for violating 103(a).

• On November 4, 2010, MSHA made another impact inspection. This time, inspector Johnson went to the bathhouse where the mine phone was located.

• Inspectors Huntley and Gray instructed the outside man/highlift operator not to give notice to miners.

• Within 10 minutes of listening, inspectors heard someone call from the underground to the outside man and asked if “Sparky” was there. The outside man replied with an over-emphasized “No.”

• The caller then said sarcastically, “Okay, I gotcha.”• Inspectors then went underground to the face where

boss Jeremy Sigola, sarcastically asked them, “what are you doing here?” and laughed.

• Inspectors then issued a citation for violating 103(a). • The United States District Court for the Western District

of Pennsylvania found that the mine did violate the 103(a) advance notice requirement.

• The court then issued a Preliminary Injunction.

CAM Mining, LLC Filed on June 23, 2011

Civil Action 7:11-CV-0104-ART  MSHA has filed a federal court injunction proceeding against CAM Mining. Filing

received nationwide press coverage.

Alleges that the mine gave advance notice to prevent a smoking search and names foreman involved by name.  It asks the Court to issue a federal court injunction barring any future advance notice.

 Further violations of the Judge's order, i.e. advance notice being given again, will

result in contempt proceedings and sanctions.

Temporary Restraining Order entered on June 30, 2011. Injunction issued in settlement on July 18, 2011.

Parties settled with a three year injunction. Injunction language follows.

ORDERED that defendant, its agents, servants, employees, vendors, visitors, all persons in active concert or participation with it and all other parties who receive actual notice of this order by personal service or otherwise be enjoined from interfering with, hindering or delaying the Secretary's inspection of the Number 28 mine by the giving advance notice to any person working underground of a pending inspection by the Mine Safety and Health Administration, United States Department of Labor. Advance notice constitutes any means of communication including, but not limited to, the mine telephone or any other device and includes any use of signals or devices intended to give notice of an inspection. Notice may only be given when an inspector from the Federal Mine Safety and Health Administration specifically orders that such notice be given as an exception to the prohibition as provided for in the Act;

Other Ramifications for

Giving Advance Notice?

• MSHA has other tools to make agents personally liable.

• Section 110(c) and (d) contain penalties when an agent knowingly or willfully violates a mandatory health and safety standard.– 110(c) -- civil penalties– 110(d) -- criminal penalties

110(c) Civil Liability

• Agents that knowingly authorize, order, or carry out a violation of the Mine Act can be fined. 110(c) liability can apply to those who provide advance notice under 103(a).– Maximum penalty is $70,000. More common

penalty $800 to $10,000

Criminal Liability

• 110(d) applies when an operator willfully violates a mandatory health or safety standard, or knowingly violates or fails or refuses to comply with any order issued under 104 and 107.

• Criminal charges have not been used for advance notices - - yet.

• Proposed revisions to the Mine Act makes advance notice a felony punishable by up to five years in prison.

• West Virginia legislature considering a statute that would make giving advance notice felony under state law and subject to a five year penalty.

The Case of Hughie Elbert

Stover and UBB • Mr. Stover was employed by Performance Coal

as head of security.• His job was to supervise all security guards.• Mr. Stover was indicted for lying to federal

investigators in charge of investigating the UBB explosion.

• Mr. Stover is alleged to have lied about Performance’s policy of providing advance notice by security guards whenever MSHA inspectors arrived.

• There were multiple radio channels that were used by the security guards at Performance.

• One channel was known as the “security channel.” A second channel was known as the “Montcoal channel.”

• Allegedly radio transmissions on the Montcoal channel would be heard by individuals working in the Upper Big Branch Mine office.

Result

• Mr. Stover convicted following a jury trial.

• US Attorney seeking 25 years in jail.

• Defense is seeking probation or home confinement.

• Sentencing is set for February 29, 2012 in Beckley, WV.

What About “Tracking”

MSHA Inspectors? • Section 2 of the MINER Act provides that, as of

June 15, 2009, an emergency response plan (ERP) must provide for an electronic tracking system permitting surface personnel to determine the location of “any persons trapped underground.”

• The term “any persons trapped underground” suggests that the requirements for electronic tracking applies to anyone underground, including MSHA personnel.

So Why Can’t I Place a

Tracking Device on Inspectors?

• MSHA released a Procedure Instruction Letter (PIL) on October 20, 2010.

• MSHA says that forcing an inspector to wear a tracking device can provide advance notice. This puts Section 2 of the MINER Act in conflict with 103(a) of the Mine Act.

• MSHA gets around this requirement by the inspector providing a travel route to their supervisor so that they will know where the inspector is supposed to be at all times.

• If the inspector wants to deviate from the route, they must notify their supervisor.

• This does not mean that an inspector won’t ever use a tracking device.

• They can still opt to wear the tracking device if he/she does not expect it to provide advance notice.

Conclusion

• Advance notice is being looked for by all inspectors.

• MSHA clearly intends to look for more civil injunctions.– Will result in 110c civil charges– Criminal charges are likely on the right facts

• States are now getting involved. Proposed West Virginia statute would make advance notice a felony, punishable by three years in prison.