By James Sharpe
Tipping off mine personnel to an impending visit by inspectors from the Mine Safety and Health Administration (MSHA) inspection is prohibited under Sec. 103(a) of the Mine Act, even if it is done by inspectors themselves.
However, advance notice has never gotten much enforcement attention, even though MSHA inspectors have suspected for years it was going on at some mines. But MSHA moved it front and center after the Upper Big Branch-South (UBB) Mine disaster in 2010. Since then, UBB’s former security chief has been convicted of lying to investigators by claiming the mine prohibited advance notice, and a former superintendent, Gary May, has pleaded guilty to conspiracy, a charge which includes giving advance notice.
While the focus of advance notice has been on coal operations, industry attorney Brian Hendrix has encountered at least one instance where MSHA threatened an aggregates producer. He described an incident where a secretary, thinking she was just doing her job, alerted her boss of an inspector’s arrival. The boss was at lunch, and she made the call to arrange for him to meet an inspector. The federal agent indicated he would cite the secretary for giving advance notice, but then thought better of it after it was explained that her intent was actually to facilitate his inspection rather than try to thwart it.
May’s testimony at his plea hearing caught the attention of Minnesota Rep. John Kline, the Republican chairman of a powerful MSHA oversight committee in the House. May suggested that MSHA inspectors were complicit when he told the judge, “It started, you know, from the MSHA inspectors coming on the property. Sometimes they would tell us, you know, they’d be back tomorrow or where they were going.”
May’s remark is not a clear-cut statement of wrongdoing by MSHA inspectors. At large underground coal mines, inspections can go on for weeks at a time. Thus, for instance, a federal official’s end-of-the-day comment of “I’ll see you tomorrow,” coming in the middle of a prolonged inspection, would hardly qualify as tipping off an operator to what it already has surmised. However, there may be less certainty of innocence where the authorized representative signals areas he or she intends to inspect upon returning.
In any case, May’s comment needs to be investigated. The Justice Department has indicated it would look into the matter. A reporter, believing MSHA had some investigative responsibility, too, asked the agency if it had launched a probe of its own. MSHA told the reporter, Ken Ward Jr., that if the Justice Department obtained evidence of MSHA employee misconduct, it would either investigate, share the information with MSHA so the agency could take appropriate action, or both. Hardly a straight answer.
In his own way, Kline has set about to get at the truth. In a letter April 27 to MSHA boss Joe Main, Kline noted that MSHA “has made the eradication of advanced notice by mine operators an enforcement priority.” He noted that the agency had issued 35 citations for advance notice since the UBB tragedy.
“However,” he added, “it is unclear whether you have made an equal effort to ensure MSHA personnel are not – even inadvertently – providing advanced notice of inspections.”
He then outlined a detailed list of information he wanted the agency to supply him so his Education and the Workforce Committee could “better understand” what MSHA is doing to identify and eliminate the problem. His request included a list of all instances in which MSHA personnel may have provided advance notice and any personnel action taken against them. His request also included information exchanged between MSHA and the Labor Department’s Office of the Solicitor related to prosecutions of advance notice incidents involving MSHA personnel and others.
Kline gave Main a short response deadline, which has since been extended in discussions between the two parties.
A NIOSH panel’s review of MSHA’s UBB accident report criticized the agency essentially for being too easy on itself for its role in the UBB tragedy. Kline appears to share the panel’s review. He is unlikely to be as easy on the agency if his investigation reveals that the advance notice problem extends to the agency’s own personnel.