By Willa B. Perlmutter
In my very first column for this publication, I wrote about the KenAmerican Resources case that was then pending in the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati. At the time, I wrote that I hoped the Sixth Circuit would take the opportunity to provide much-needed guidance on what exactly “advance notice” means in the context of the Mine Act.
Alas, apparently I hoped for too much. The decision that was handed down in mid-May not only did not shed any light on what Section 103(a) means, it parroted MSHA’s accusations against mine operators generally, suggesting that the industry is perpetually looking for opportunities to evade safety enforcement by fixing hazards (more on that below) before an inspector catches them in a violation.
Let’s take a minute to review what the case was about. In response to a hazard complaint, MSHA conducted a “blitz” inspection of KenAmerican’s Paradise No. 9 mine. At least six inspectors showed up, going to different portals to begin the inspection. While one inspector surreptitiously monitored the mine phone, the mine’s dispatcher called down for a mantrip so the inspectors would have transportation into the mine. One of the miners listening in asked “Do we have any company outside?” and (depending on who you believe) the dispatcher responded with either “Yeah, I think there is” or “I don’t know.” MSHA took notice of the exchange and when the miner refused to identify himself, cited the mine for a violation of section 103(a) (“no advance notice of an inspection shall be provided to any person.”).
KenAmerican contested the citation, and the case bounced up and down at the Commission for a while before landing at the Sixth Circuit – after the Commission decided not to hear KenAmerican’s appeal for a third time. The three-judge panel (two appointed by Republicans and one by Bill Clinton) considered the operator’s arguments for why what had happened did not constitute unlawful advance notice. The Court shot those arguments down one by one.
KenAmerican argued that the language of the Mine Act suggests that Section 103(a) applies only to MSHA inspectors – in other words, that the Act bars only MSHA inspectors from providing advance notice. The Court parsed the statute’s language and disagreed with the company. (On this point and on all others as well, on their way to ruling against the company.)
KenAmerican also suggested that while the dispatcher may have said that inspectors were at the site, he did not give advance notice because he did not explicitly say they were there to inspect. The Court disagreed with that, too, reasoning that since inspectors were at the mine virtually every day anyway, the exchange between miner and dispatcher could only have meant that an inspection was imminent. Finally, the Court decided that because the government has a compelling interest in “improving the health and safety conditions in the Nation’s underground and surface mines,” Section 103(a) does not violate a mine operator’s right to freedom of speech.
So, that’s what the decision says. The Court ultimately declined to overturn the administrative law judge’s decision to uphold the citation. Although the ruling is technically binding only on mines in the Sixth Circuit’s jurisdiction (in other words, in Kentucky, Michigan, Ohio and Tennessee – the Paradise No. 9 mine is in Kentucky) the Commission generally follows Court of Appeals precedent on a nationwide basis, and we would expect the Commission to apply the law as interpreted in the KenAmerican case in all states going forward.
But it’s not that simple. When talking about this case last year, I wrote that I hoped the Sixth Circuit would provide much-needed clarity about what Section 103(a) means. That, they haven’t done, other than to say that the provision binds mine operators and not just MSHA. They also clarified that the Constitution’s guarantee of freedom of speech does not apply when it comes to advance notice. What they didn’t do, though, was help us understand better what “advance notice” really means, and what conduct can legitimately be considered to be violative. That leaves the door open for further interpretation by MSHA and further litigation by operators based on the particular facts of each individual case.
Two more things. First, as I said above, the Sixth Circuit bought into the popular mythology about the industry’s evil intentions and repeated the same tired old canards about the various subterfuges that mine operators (in the opinion of the Court and the inspector who issued KenAmerican’s citations) devise to alert their people that MSHA is on-site for an inspection. The Court amplified the inspector’s accusations, not just about KenAmerican, but about mine operators generally, and described in painful (and arguably questionable) detail how getting advance notice of an inspection would help an operator evade enforcement. At least in my experience, operators just don’t act that way. The industry knows that giving advance notice of an inspection is illegal, and the fact that citations for advance notice are rarely issued suggests that mine operators take Section 103(a) to heart.
Frankly, I had been hoping that the KenAmerican decision, when it came, would acknowledge the good-faith efforts on the part of the vast majority of mine operators to comply with Section 103(a). But the accusations leveled by MSHA in this case, amplified by the Court of Appeals, does the industry, and especially all the many good actors out there, a serious disservice.
Finally, I am still troubled by what could be considered the inherent hypocrisy of MSHA’s enforcement position when it comes to advance notice. While the purpose of the Mine Act is, of course, to support mine safety and thereby protect miners, the practical effect of Section 103(a) is almost the opposite. MSHA’s concern is that operators routinely turn a blind eye to safety hazards until they know an inspector is on the way, then try to avoid enforcement action by fixing potential violations before the inspector gets there. Assuming that there is a direct correlation between MSHA regulations and safety (surely a topic for another column) that suggests that MSHA would rather catch a violation and issue a citation than have a mine operator addressing the hazard. That makes no sense, and frankly the Sixth Circuit missed the disconnect in the KenAmerican decision. The Court quoted the Mine Act’s textual commitment to “prevent the existence of [unsafe] conditions and practices” in mines, but nonetheless elevated MSHA’s ability to conduct surprise enforcement over an operator’s ability to fix hazards in the first place.
We’re not much closer today than we were a few weeks ago to understanding what the advance notice provision of the Mine Act really means. It looks like that gaining clarity will have to wait for the next case. Maybe the court that decides that case will be able to muster some respect for the efforts of all those good operators out there to keep their people safe and follow the law at the same time. Until then, we’ll just have to depend on MSHA to recognize and do the right thing.
Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at [email protected].