MSHA Seen as Bully in Warrior Coal Case

The Mine Safety and Health Administration persisted in pursuing a citation against a Kentucky coal operator even after the agency no longer had a practical reason for doing so.

In May 2011, an inspector issued a withdrawal order after finding multiple alleged hazardous roof and rib conditions at Warrior Coal, LLC’s Cardinal Mine. Suspecting the alleged hazards may have existed on multiple shifts, thereby potentially implicating management, MSHA opened an investigation under Section 110(c) of the Mine Act to try and determine if any of Warrior’s “agents” – directors, officers, supervisors and the like – were aware of the allegedly hazardous conditions but did nothing to prevent them.

To facilitate its investigation, MSHA said it needed to interview individual miners. To that end, it asked Warrior to turn over the names, addresses, positions, shifts worked and phone numbers of all Cardinal employees. The company refused, citing in part the miners’ right to privacy. Warrior offered to cooperate only if MSHA first obtained employees’ permission for Warrior to turn over what MSHA wanted. A three-week stalemate ensued, after which MSHA cited Warrior for violating Section 103(h) for not providing the information, followed by a failure-to-abate enforcement action.

Section 103(h) provides in relevant part that operators are required to turn over to MSHA  “such information as the Secretary [MSHA] may reasonably require from time to time to enable him to perform his functions under this Act,” even if that information is not otherwise required under MSHA’s regulations.

According to the agency, MSHA never got the sought-after contact information. Nevertheless, it closed its special investigation in 2011 without taking further action against the company or its managers. Therefore, one might think MSHA would vacate a citation proven to have been pointless because the employees’ contact data had not been needed to complete the special investigation. But you would be wrong. In MSHA’s view, the citation was valid because Warrior violated the law, and by Jove the company was going to pay for its insubordination. It took four years and lots of taxpayer-funded government legal resources, but Warrior did have to pony up. Two months ago, the Federal Mine Safety and Health Review Commission upheld the citation and $550 fine that one of its judges had approved years earlier.

Commissioner William Althen concurred with the Commission majority’s decision, but dissented on other grounds. In so doing, he couldn’t resist tweeking MSHA in a pair of footnotes. He noted that the agency collected a monetary penalty over Warrior’s refusal to provide records that “were of no real interest to MSHA” because the agency closed its special investigation without ever getting them.

Some might describe MSHA’s dogged pursuit of “justice” as institutional intransigence. To us, though, the agency was just being a bully.

Copyright 2016, James Sharpe, CIH.  All Rights Reserved.