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Coal industry wants more guidance on advance notice policy

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    Monday, August 8 2016 10:15 AM EDT2016-08-08 14:15:05 GMT

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Is providing notice of a mine inspection after the inspection has begun still illegal?

Last week in federal court, a Massey Energy executive facing charges related to one of the most fatal coal mining incidents in recent history said the CEO was directly involved in providing advance notice of arriving inspectors. 

David Hughart, former president of White Buck Coal Co., told a federal judge that the company's CEO ordered the practice of providing advance notice of coming federal mine safety inspectors. Hughart's wife confirmed to the Associated Press that though CEO Don Blankenship was not mentioned by name, that's precisely who he was talking about.

Hughart did not work at the Upper Big Branch mine where 29 coal miners died in an explosion in Raleigh County. Reports from the UBB incident, however, have indicated Massey's operation there worked to emphasize production over safety.

Blankenship's attorney, William W. Taylor, said that Blankenship did not "conspire with anybody to do anything illegal or improper." Taylor added that Blankenship took responsibility to make Massey mines safer.

"By the way, it is not illegal to notify people in a mine that an inspector has arrived on the site and begun an inspection," Taylor added to his statement.

Asked at the West Virginia Coal Symposium this week whether this statement is true, Joe Main, assistant secretary of labor for mine safety and health, directed questions to his communications office. Asked if Taylor's statement regarding advance notification was true or false, the agency rejected the premise that it is not illegal to notify mine workers after inspection has begun. 

"Advance notice of an inspection after an inspection begins is still advance notice," wrote Mine Safety and Health Administration Spokesperson Amy Louviere in an e-mail.  

The 1977 Mine Act, which is where penalties for providing advance notice originate, does not explicitly define advance notice.

"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 a fine of not more than $1,000 or by imprisonment for not more than six months, or both," the law reads.

In 2010, shortly after the Upper Big Branch explosion, MSHA issued a program information bulletin clarifying the punishment for providing advance notice. In that PIB, MSHA notes there are exceptions to the legality of providing advance notice of a mine inspection.

"Volume I of MSHA's Program Policy Manual (PPM) notes that there are limited occasions when advance notice is contemplated by the Mine Act," PIB No. P10-15 states. "For example, under Section 103(g)(1) of the Act, where a representative of the miners or a miner gives notice of what he believes to be an imminent danger, the operator or his agent must be notified and such notification will almost always have the effect of indirectly giving notice of an inspection." 

The same PIB did not clarify whether operators were allowed to notify any of their employees as to the arrival of mine inspectors once the inspection had begun.

Precisely defining advance notice and when it is penalized, the industry says, is important. Chris Hamilton, vice president of the West Virginia Coal Association, said it is important for the safety of miners and inspectors to sometimes be able to notify certain personnel of inspectors' presence.

"I think there is just a real fine line here between not giving advance notice of an inspection while at the same time trying to ensure the safety of inspectors and others that may be sharing the same travel way or others working in the mine," Hamilton said. "It's still imperative that we communicate and coordinate the various people, including inspectors, as they move from point A to point B within the confines of an underground mine operation so that you can avoid collisions and people that may be working in close proximity."

For example, in 1998, Topper Coal Company in Kentucky was assessed a violation for providing advance notice of inspector arrival to miners working the face of the mine.

"About 15 to 20 minutes after (inspectors) went underground, (President Gary) Fields telephoned the working section and told a miner that ‘two federal inspectors' were in the mine and that he wanted the miners to ‘watch out and be careful,'" a decision from the Federal Mine Safety and Health Review Commission states.

The inspection was part of a crackdown on smoking in coal mines causing explosions. According to the president of the coal mine, the notice was provided so that inspectors would not be injured.

"After hanging up, Fields explained to (the inspector) that he was concerned that, absent the warning, the miners might not see the inspectors and might run over them with a shuttle car," the FMSHRC document states.

The commission found that "Fields' warning of the inspection clearly is sufficient to establish a violation of the ‘no advance notice' language."

In an August 2010 notice to "clients and friends" of energy law firm Jackson Kelly, the firm warned operators that "MSHA is taking an increasingly strict view of the prohibition against advance notice." They also added that "issues of when advance notice is permitted under the Mine Act and what is ‘advance notice' are open to interpretation."

Hamilton said that, in general, the industry does not mind the advance notice rule.

"Nobody condones blatantly giving advance notices of inspections that ultimately compromise the integrity of the inspection process," Hamilton said. "Everyone is fine with accepting that standard and abiding by it."

Hamilton said the topic "warrants more guidance and clarification" from the agency. In some of the more complex underground mines, one person is charged with directing the traffic and moving of heavy equipment around the mine. Hamilton said given current information, he's not sure if it's even okay for that dispatcher to know the location of inspectors.

"You get into the casual chatter around a coal mine operation that's not intended to compromise integrity of the inspection," Hamilton said. "It's just intended to provide communication and coordination and movement of equipment underground and transportation systems."

Some of the equipment and heavy transport vehicles move along tracks underground, but others do not. Hamilton said inspectors moving about the otherwise coordinated underground mining activity can pose a threat to inspectors and other mine workers.

Though the agency seems to have taken a strict stance on the definition of advance notice, Hamilton said confusion still exists, particularly because some of what has been defined as advance notice is intended to improve miner safety. Hamilton said he believes the matter will be litigated and some clarification may come to define advance notice once inspectors have arrived.

"I believe personally that some of that will come as some of this issue is litigated or violations that come from an alleged advance warning become contested," he said. 

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