Request By:
H. N. Kirkpatrick, Commissioner
Department of Mines and Minerals
P.O. Box 680
Lexington, Kentucky 40500
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David C .Short, Assistant Attorney General; By: David K. Martin, Assistant Attorney General
You have by letter and by telephone requested the opinion of this office with respect to your authority under KRS 351.170. We understand your questions to be:
Question No. 1:
Can the Commissioner of the Department of Mines and Minerals require monthly fire boss reports to be filed with the Department of Mines and Minerals?
Answer:
KRS 351.170 states:
"The owner, lessee or superintendent of each commercial coal or clay mine shall give at the end of each month and at the end of each calendar year accurate information, on blanks furnished by the commissioner, as to the number of accidents that have occurred, the number of persons employed, the tons of coal or clay mined and any other related information that the commissioner requests.
This statute appears to grant authority to the Commissioner that is broad enough to encompass fire boss reports. We believe that the Commissioner could request this information which is related to mine safety and appears to fall within the language of KRS 351.170. The amendment of KRS 352.290 by 1976 House Bill 602 enlarged the scope of 352.290 to include the record books of a mine operator. KRS 352.290 states:
"A suitable record book shall be kept at the mine office of every mine wherein fire bosses are employed, and immediately after the examination of the mine or any portion thereof, by a fire boss, he shall enter and sign a record of the examination in the book with ink or indelible pencil. The record shall clearly show the time taken in making the examination, the nature and location of any danger discovered in the mine and what has been done to correct such dangerous conditions. If any danger is discovered, the fire boss shall immediately report its location to the mine foreman, or in his absence to the assistant mine foreman in charge, who shall take immediate action to remove such danger. When a station is located inside a mine the fire boss shall enter and sign a report both in the record book kept there and in a record book in the mine office on the surface. The record books of the mine operator shall at all times during working hours be accessible to the mine inspector.
Prior to the 1976 amendment, KRS 352.290 only required that "record books of the fire bosses shall at all times during working hours be accessible to the mine inspector. " Now all mine operator record books, including the fire boss reports, are required to be accessible to the mine inspector during working hours.
Question No. 2:
Can the Department require fire boss reports only from mines located below the water table?
Answer:
As stated previously herein, the Department can require require boss reports from mine operators under the provisions of KRS 351.170. However, KRS 351.170 does not subdivide the class of owners, lessees, or superintendents into mines located above and mines located below the water table. If the Department attempts to subdivide mines into these two classes and impose different requirements based on membership in one of these classes, the Department must consider the requirements and prohibitions imposed by Sections 59 and 60 of the Constitution of the Commonwealth of Kentucky. Sections 59 and 60 of the Constitution of the Commonwealth of Kentucky prohibit special and local legislation unless there is some actual distinction that is reasonably related to the purposes of the statute. The Department, therefore, must find a relationship between mine safety and the need to impose different reporting requirements on mines below the water table as a class than the reporting requirements imposed on other mines. Assuming that the Department can do so, then after having done so, the Department can through its regulations impose these requirements.
Question No. 3:
What is the Department's responsibility as regards retention of these records of inspections?
Answer:
KRS 351.160 states:
"(1) The Commissioner of the department shall annually make a report to the Governor of his proceedings during the preceding calendar year. The annual report shall be prepared and printed as soon as possible after the close of the calendar year. The annual report shall cover the complete operation of the mines in this state during the preceding calendar year, enumerating all accidents occurring in or about any such mines during that year, and giving such other information as the commissioner deems useful, and making such suggestions as he deems important as to further legislation on the subject of mining.
(2) The commissioner shall keep and index a permanent record of all inspections made by himself and of all reports relating to inspection of mines furnished by him by mine inspectors. All such records of the department shall be public records and shall, at all times, be open to the inspection of the public, and shall be laid before the Governor upon his request at any time.
(3) The department of mines shall furnish certified copies of any such records, when requested to do so, upon payment of such fee as is generally charged by courts of record for certified copies. Such fee shall be paid into the treasury of the state."
Also, KRS 351.990(1) states:
"(1) Any commissioner of the department of mines and minerals who violates any of the provisions of subsection (2) of KRS 351.020, or any of the provisions of KRS 351.070 to 351.100 or KRS 351.160 shall be fined not less than one hundred nor more than one thousand dollars."
We believe these statutes answer your question number two.
KRS 351.070(13) states:
"(13) The commissioner shall have the power and authority to adopt, amend, or rescind such rules, regulations, and standards as he deems necessary and suitable for the proper administration of this chapter. Rules, regulations, and standards may be adopted, amended, or rescinded by the commissioner only after public hearing or an opportunity to be heard thereon of which proper notice by publication pursuant to KRS chapter 424, has been given. Such rules, regulations, and standards so adopted shall carry the full force and effect of law. This provision shall not be applicable to rules, regulations, and standards in effect on June 16, 1972."
We suggest that the Department implement its policies and the statutory intent through regulations that are ascertainable and enforceable as departmental regulations. This will clarify what the status is of given departmental "policies" and increase the Department's abilities to implement the provisions of Kentucky law the Department is charged with implementing.
We trust this response is adequate for your purposes here. Do not hesitate to contact us if we may be of further assistance to you.