Labor; Scope of the North Carolina Mine Safety and Health Act

Subject:

Requested By: The Honorable John C. Brooks Commissioner of Labor

Question: (1)

Do the Mine Safety and Health Act of North Carolina and the safety and health standards promulgated under its provisions, apply to so-called mines which have employees and at which the public pays a fee for the privilege of seeking or recovering minerals?

(2)

Do the Act and the safety and health standards promulgated under its provisions apply to so-called mines at which no employer-employee relationship exists and at which the public pays a fee for the privilege of seeking or recovering minerals?

(3)

Do the Act and the safety and health provisions promulgated under its provisions apply to the land owner who permits the public, free of charge, to seek or recover minerals?

(4)

Do the Act and the safety and health standards promulgated under its provisions apply to persons who seek or recover minerals in any of the so-called mines in questions 1, 2, and 3 above?

(5)

Do the Act and the safety and health standards promulgated under its provisions apply to persons who seek or recover minerals without the permission, knowledge, or consent of the landowner?

Conclusions: (1)

Yes.

(2)

Yes.

(3)

No; with certain exceptions.

(4)

See below.

(5)

Yes, but with only limited application to the landowner.

The North Carolina Mine Safety and Health Act, Chapter 74, Article 2A of the North Carolina General Statutes, is a safety statute enacted by the General Assembly in an effort to reduce personal injuries and illnesses resulting from mining operations. G.S. 74-24.1 indicates the the legislative purpose of this Act was to ". . . assure so far as possible every worker in North Carolina’s mines safe and healthful working conditions . . ." (G.S. § 74-24.1(b)). The North Carolina Department of Labor was designated as the agency empowered to administer the Act. The Commission of Labor was authorized to enter into agreements with both public and private agencies, including agencies of the United States Government, in order to carry out the purposes of the Act. By agreement with an agency of the United States Government, mandatory health and safety standards promulgated under the authority of the Federal Metal and Non-metallic Mine Safety Act of 1966 (30 U.S.C. 721 et seq.) have been made applicable to mining operations in this State. The Department of Labor has promulgated occupational safety and health standards applicable to mines in addition to those promulgated under the authority of the federal act.

G.S. 74-24.20 requires that, "this Article shall receive a liberal construction to the end that the safety and health of miners in the State may be effectuated and protected."

The Act applies to mines which have employees and at which members of the public at large pay a fee for the privilege of seeking or recovering minerals. G.S. § 74-24.2(8) states: "The term "miner" means any individual, other than an operator or an agent, working in or about a mine." This broad definition was clearly intended to apply the provisions of the safety act to all persons who engage in any mining operation.

The Act and the safety and health standards promulgated under its provisions also apply to so-called mines at which no employer-employee relationship exists and at which the public pays a fee for the privilege of seeking or recovering minerals. Members of the public who engage in mining operations for any reason are "miners" and fall within the scope of the Mine Safety and Health Act which was enacted for their protection.

The Act and the safety and health standards promulgated under its provisions do not apply to a landowner who permits the public, free of charge, to seek or recover minerals which appear in their natural state upon his property. However, where the surface of the land has been altered in order to facilitate the extraction of minerals from their natural deposits, the provisions of the Act would apply. Alteration of natural formations would bring the operation within the definition of a "Mine" and the landowner within the definition of an (operator) (G.S. §§ 74-24.2(7) and (9)). Moreover, both federal and state standards require the installation of certain safety features in and about mines and mining operations which are not in commercial use, or abandoned. These standards would apply to mine sites whether or not the landowner chooses to allow invitees to work the mine.

The Act and the safety and health standards promulgated under its provisions apply to persons who seek or recover minerals in mines described in questions 1, 2, and 3 above. For the reasons hereinbefore mentioned, persons who work mines in any capacity fall within the definition of a "miner."

The Act and the safety and health standards promulgated under its provisions apply to persons who seek or recover minerals without the permission, knowledge, or consent of the landowner. All such persons are "miners" within the meaning of the statute. However, the landowner would not come within the provisions of the Act since he is not an "operator." The aforementioned standards applicable to closed or abandoned mining operations would apply to the landowner, but the standards applicable to operational mines would not.

Rufus L. Edmisten Attorney General

George W. Lennon Associate Attorney