Workplace Safety and Health News Alert

Sixth Circuit Affirms Commission’s Finding of Advance Notice of MSHA Inspection Given by Mine Operator in 2012

May 17, 2022

By: K. Brad Oakley

On May 11, 2022, the Sixth Circuit Court of Appeals affirmed a decision by the Federal Mine Safety Health & Review Commission (“Commission”) that a mine operator provided advanced notice of an MSHA inspection during events that occurred in April 2012. KenAmerica Resources, Inc. v. Sec’y of Labor, 2022 WL 1483988 (May 11, 2022).

Factually, the case involved a situation where MSHA received an anonymous complaint about alleged hazardous conditions at KenAmerica’s Paradise No. 9 mine in Muhlenberg County, Kentucky. The mine had two portals – the “new” portal and the “old” portal. In response to the complaint, MSHA went to both portals and seized control of the mine phone at the “new” portal and the inspectors at the “old” portal requested the dispatcher at that portal to send mantrips to the surface. A miner underground answering the mine phone asked if they had “company” outside and the dispatcher at the old portal stated “I think there is.” The inspector who had seized the phone at the new portal understood the word “company” as code for MSHA and asked the person who responded “I think there is” to identify themselves but never got a response. Based on the response of “I think there is”, MSHA issued a citation under Section 103(a) of the Mine Act for providing advance notice of an inspection and assessed a civil penalty.

The operator contested the citation and moved for summary decision. The ALJ granted summary decision to the operator, concluding the conversation between the dispatcher and miner was “ambiguous” in that the dispatcher’s response did not clearly constitute advance notice of MSHA’s inspection. The Secretary appealed the ALJ’s decision. The Commission reversed the ALJ, stating that there were material questions of fact precluding a summary decision as to whether the dispatcher’s response constituted advanced notice.

On remand, the ALJ vacated the citation after a hearing, crediting the dispatcher’s testimony that he actually responded “I don’t know” instead of “I think there is” when asked if there was “company” outside. However, the dispatcher also testified that it was “possible” he said something else. On appeal by the Secretary, the Commission once again reversed the ALJ’s decision vacating the citation, finding that the ALJ abused his discretion in crediting the dispatcher’s testimony over the inspector’s testimony. The Commission also rejected the operator’s argument that Section 103(a)’s prohibition against providing advance notice only applies to representatives of the Secretary and that Section 103(a) violated free speech rights under the First Amendment. The Commission remanded the case to the ALJ to assess a civil penalty. After the ALJ assessed a penalty of $18,742, the operator sought discretionary review by the Commission. The Commission denied discretionary review and the operator then appealed to the Sixth Circuit.

On appeal to the Sixth Circuit, the operator first argued that Section 103(a)’s prohibition against providing advance notice only applied to representatives of the Secretary. This argument was rejected, based on statutory construction (overall statutory scheme and congressional intent) and the fact that the Sixth Circuit believed it would be nonsensical for there to be individual criminal penalties for advance notice under Section 110(e) of the Mine Act, but not civil penalties under Section 103(a).

The operator also argued that Section 103(a)’s prohibition against providing advance notice violates First Amendment free speech rights because it is a content-based restriction on speech that cannot survive strict scrutiny. The parties disagreed on which level of scrutiny applied (intermediate vs. strict), but the Sixth Circuit ultimately held it wasn’t necessary to decide which level of scrutiny applied in order to resolve the case. As grounds for its conclusion, the Sixth Circuit cited Donovan v. Dewey, a 1981 United States Supreme Court case holding that “there is a substantial federal interest in improving the health and safety conditions in the Nation’s underground and surface mines.” 452 U.S. 594, 602 (1981). Thus, the Sixth Circuit concluded that Section 103(a) survived strict scrutiny (and, as a necessary result, survived intermediate scrutiny as well) because it was narrowly tailored to serve a compelling government interest to protect the nation’s miners.

This decision serves as a strong reminder to all mine operators to avoid any type of communications that could be perceived or construed as alerting miners that MSHA is on-site for purposes of inspecting the mine.