MSHA Enforcement Update

An issue that has been floating around recently has to do with assertions by certain inspectors to the effect that hourly employees at metal nonmetal mines who perform workplace examinations as “competent persons designated by the operator” are “agents” of the operator. When such assertions are made to hourly employees, the implications are that the employees could be held personally liable by MSHA for failure to make adequate examinations.

Such statements are misguided. They are an outgrowth of two older case decisions that are easily distinguished. The key point is that no hourly person has ever been held liable under the personal penalty provisions of the Act and there is no MSHA policy in favor of prosecutions against hourly miners.

In 1977, the U.S. Court of Appeals for the Fourth Circuit held that a coal company, Pocahontas Fuel, could properly be charged with “unwarrantable failure” based on an hourly miner’s failure to report a condition that should have been reported. More recently, in a 1991 case involving Rochester and Pittsburgh Coal Company, the Federal Mine Safety and Health Review Commission held that a [preshift] examiner in a coal mine could be viewed as being “charged with responsibility for the operations of…part of a mine” and therefore the examiner constitutes the operator’s agent for that purpose. Again, the case did not involve a charge against the employee, but rather attribution of the employee’s conduct to the coal operator for purposes of establishing an “unwarrantable failure” to comply. MSHA takes the position that when a company assigns a miner a statutorily mandated responsibility for an operator to conduct and record examinations, then that miner becomes an agent of the company for that purpose.

Unlike the workplace examination requirement in metal nonmetal, which is part of the regulations but is not statutorily mandated, the coal mine preshift inspection requirement comes directly from the statutory provisions of the Federal Mine Safety and Health Act, which states:

No person (other than certified persons designated by the operator under this subsection) shall enter any underground area, except during any shift, unless an examination of such area as prescribed by this subsection has been made within eight hours immediately preceding his entrance into such area. [Act Section 303]

This type of requirement incumbent on a coal mine operator, and the persons who undertake to become certified to make such examinations, is a far cry from the requirement for any “competent person” designated by a metal nonmetal operator to examine a working place at least once each shift. Apart from the fact that coal mine certified preshift examiner findings must be reported and recorded––in contrast to metal nonmetal competent person workplace exams, which do not––case decisions have not held that the examinations of competent persons in metal nonmetal mines can create a basis for an “unwarrantable failure” charge against a metal nonmetal mine operator.