Big Ridge, Inc. and Peabody Midwest Mining LLC

Plain-English summary

Big Ridge and Peabody Midwest contested citations and failure-to-abate orders issued after two mines declined to provide payroll, time-sheet, and accident-related medical records during MSHA Part 50 audits. Judge Kenneth R. Andrews held that the Mine Act and 30 C.F.R. § 50.41 authorize MSHA to request records needed to verify whether accidents, injuries, illnesses, employment, and work hours were accurately reported. He found the one-year requests relevant, limited, not unduly burdensome, and supported by adequate privacy safeguards. He rejected the operators' warrant, privacy, and rulemaking arguments and affirmed the citations and orders. The Commission later affirmed this result together with related cases.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.41
• Outcome: The modified citations and failure-to-abate orders issued to the Willow Lake and Air Quality mines were affirmed.
• Subsequent review: The Commission affirmed the result in weva-2011-398-r-commission.
• Key point: MSHA may obtain narrowly limited employment and medical records that are relevant and necessary to verify Part 50 reporting compliance.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER

875 GREEN TREE ROAD, SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412)920-7240

FAX:(412)928-8689

May 20, 2011

BIG RIDGE, INC.,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

PEABODY MIDWEST MINING LLC,

Contestant

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

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CONTEST PROCEEDINGS

Docket No. LAKE 2011-116-R
Citation No. 6670850; 11/09/2010

Docket No. LAKE 2011-117-R
Order No. 6670851; 11/09/2010

Mine: Willow Lake Portal
Mine ID: 11-03054

CONTEST PROCEEDINGS

Docket No. LAKE 2011-118-R
Citation No. 6670852; 11/09/2010

Docket No. LAKE 2011-119-R
Order No. 6670853; 11/09/2010

Mine: Air Quality #1 Mine
Mine ID: 12-02010

DECISION

Appearances:    Daniel W. Wolff, Esq., Crowell & Moring, LLP, Washington, District of Columbia for Peabody Midwest Mining LLC

Samuel Charles Lord, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia for the Secretary of Labor

Before:   Judge Andrews

These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801
et seq. (“the Act”).

These cases are before me upon Notices of Contest filed by the Contestants on November
11, 2010. Although the notices informally requested an expedited hearing, a separate formal
motion for expedited proceedings under section 2700.52 of the Commission Rules was also filed
on November 12, 2010. The motion was granted on November 24, 2010.

The Order of November 24, 2010, also consolidated Docket Nos. Lake 2011-116-R,
117-R, 118-R, and 119-R, involving two mines controlled by Peabody Energy (Peabody”). The
hearing on these Dockets was held in Jeffersonville, Indiana, on December 14, 2010.

By agreement of all parties, additional Part 50 audit contest cases involving mines
controlled by Massey Energy Company were heard in Charleston, West Virginia, on December
16, 2010. A separate decision will be issued for those Dockets.

PRELIMINARY MATTERS

On December 17, 2010, a request for intervention in the Willow Lake Portal (“Willow”)
case was received from the Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers
Local S-8 of Harrisburg, Illinois. Since the hearing had been held, limited intervention in form
of a memorandum to be filed no later than December 31, 2010, the date for submission of post
hearing briefs, was granted. However, no submission was received from the intervenor.

A Memorandum for District Managers regarding Part 50 Audit procedures for
safeguarding personally identifiable medical or other sensitive information was admitted as
Exhibit G-5, but the document did not bear a date. The Secretary of Labor (“Secretary”) later
reported that the document had been distributed on December 13, 2010.

At the hearing, the Secretary moved for admission of the notes made by the inspector on
November 9, 2010, at each of the mines. These notes had been referred to in the testimony of a
witness, Mr. Peter J. Montali. After reviewing the notes, Contestants objected to their
admission. By Order dated December 21, 2010, the notes were admitted. Ex. G-16, 17. On
January 14, 2011, Contestants filed a motion for reconsideration of the decision to admit the
Inspector’s notes, or in the alternative to strike section four of the Secretary’s Post Hearing Brief.
The section referred to mentions the notes, along with other matters regarding time for
abatement of the citations issued. Since the notes were recorded by the inspector at the times
that the citations and orders were issued on November 9, 2010, they are relevant. While the
notes are hearsay, they are admissible. The motion in the alternative is denied.

The parties reported stipulations at the hearing, recited for the record, and summarized as
follows:

1.   Both Big Ridge, Inc., and Peabody Midwest Mining, LLC, are properly within the
jurisdiction of the Federal Mine Safety and Health Review Commission.

2.   The citations and orders and the modifications to the citations and orders were issued
by an authorized representative of the Secretary to an agent of Big Ridge, Inc., and to
an agent of Peabody Midwest Mining, LLC.

3.   That various pieces of correspondence between the Secretary and Big Ridge, Inc.,
and Peabody Midwest Mining, LLC, including the October 20, 2010 request letters
and the superseding October 28, 2010 request letters, and the responses from Ms.
Mitchell-Bromfman, were authentic. There was no stipulation as to the truth of the
matters asserted in such correspondence.

BACKGROUND

In October 2010, the Mine Safety and Health Administration (“MSHA”) began a
nationwide initiative to conduct thirty-nine (39) compliance audits under the authority of 30
C.F.R Part 50. Ex. G-1, p.2, ¶8. Two subsidiary mines of the Peabody Energy Company
(“Peabody”), Willow, and Air Quality #1 (“Air Quality”) are a part of this initiative.

On October 19, 2010, each mine was presented with a letter dated October 8, 2010, not
specifically addressed to the mine, requesting certain documents. Ex. C-A, Tr. 106, 128-129.
Two of the five requests, forms 7000-1 and 7000-2, maintained by the safety department of each
mine, were made available to the MSHA inspector. Ex. G-2, 3. However, both Health and
Safety Managers objected to providing the other requests, which included payroll records, time
sheets, and a number of medical records. Tr. 107-09, 128. The requests for these records were
repeated at each mine the next day, October 20, 2010. Tr. 109, 129. The records were not
released by either mine. No citations or orders were issued at that time.

The first request was superseded by an October 28, 2010 request letter addressed to each
mine and in pertinent part is as follows:

The Federal Mine Safety and Health Administration (MSHA) is
conducting an audit to determine your mine’s compliance with the injury and
illness reporting regulations in 30 Code of Federal Regulations (CFR) Part 50.
Pursuant to 30 CFR §50.41, MSHA is requesting certain records that are
considered to be relevant and necessary to complete its audit.

Please have the following information and documentation available for
review by October 29, 2010. The documents should cover the period beginning
July 1, 2009 through June 30, 2010.

1.         All MSHA Form 7000-1 Accident Reports

2.         All quarterly MSHA Form 7000-2 Employment and
Production Reports

3.         All payroll records and time sheets for all individuals
working at your mine for the covered time period

4.         The number of employees working at the mine for each
quarter

5.         All medical records, doctor’s slips, worker compensation
filings, sick leave requests or reports, drug testing
documents, emergency medical transportation records, and
medical claims forms in your possession relating to
accidents, injuries, or illnesses that occurred at the mine or
may have resulted from work at the mine for all individuals
working at your mine for the period of July 1, 2009 through
June 30, 2010.

“In your possession” means within your mine’s possession or within the
control, custody, or possession of another entity or person from whom you have
authority to obtain the required records. If any of the required records are in the
exclusive possession of any other entity or person from who you do not have
authority to obtain the required records, you must so certify and identify the entity
or person who has exclusive possession. Ex C-D, C-E.

Since the content of the October 28, 2010 audit request letters is identical, they will be
referred to as the Uniform Audit Request (“UAR”).

Peabody’s Senior Counsel responded by letters dated October 28 and 29, 2010, that the
information listed in categories three (3) and five (5) would not be made available for MSHA’s
review. There was an indication that Peabody would welcome further discussion with MSHA,
but conditioned such discussion on MSHA’s cooperation in furnishing information regarding
how the record demands could be narrowed to accommodate MSHA’s legitimate audit concerns
without jeopardizing privacy rights of employees or revealing confidential business information.
There is no evidence that the information requested by Peabody as a condition for further
discussion was provided by MSHA. Ex. C-F, C-G.

On November 9, 2010, MSHA inspectors went to the Willow and Air Quality mines to
review the documentation requested in the UAR. Ex. G-16, G-17. Both mines refused to provide
any medical records. A 104(a) citation was issued to each mine based on the refusal. Ex. G-10,

11. The request was repeated and again refused, and a 104(b) order was issued fifteen (15)
    minutes after the initial citations. Ex. G-12, 13. The citations were later modified to include the
    time sheets and payroll records. Ex. G-14, 15. An unopposed motion to amend the citations to
    include the timesheets and payroll records was granted.

Citation No. 6670850 was issued at Willow with the following notations:

Mike Baize, Safety Director, refused to permit an Authorized Representative of
the Secretary of Labor to inspect and copy information to determine compliance
with the reporting requirements related to accidents, injuries, or illnesses at the
Willow Lake Mine (Mine ID 1103054). The requested documents include
medical records. (Sic) Doctor’s slips, worker compensation filings, sick leave
request or reports, emergency medical claims forms relating to accidents, injuries,
or illnesses that occurred at the mine or may have resulted from work at the mine
for the period currently being audited (07/01/2009 – 06/30/2010). MSHA
considers this information relevant and necessary to determine compliance with
the reporting requirements of 30 CFR, Part 50.

Order No. 6670851 was issued fifteen (15) minutes later with the following
notations:

Todd Grounds, Compliance Manager, continued to refuse to provide records
requested by an Authorized Representative of the Secretary identified in citation
6670850 for the purpose of conducting a Part 50 Audit at the Willow Lake Potal
(Sic) Mine (Mine ID 11-03054) in accordance with the requirements of 30 CFR,
Part 50.41.

At Air Quality, Citation No.6670852 and Order No. 6670853 were issued, and were
essentially the same with the exception of the name of the mine and the employee served.

Peabody timely contested the citations and orders for both mines.

The record also contains evidence from officials at Willow that some miners objected to
the release of medical and workers compensation files. Ex. C-J, Tr. 111, 112, 134. Cross
examination of Michael Middlemas, Manager of Health and Safety at Air Quality, revealed that
the miners were told only of the citation, and not that the audit was limited to workplace injuries
and illnesses and limited to a one year period. Tr. 139. Also noted is the intervention granted to
the union, which was not pursued. Since the miners were not fully informed, and there is no
intervention for consideration, this matter will not be further discussed.

LAW AND REGULATIONS

Section 103(a) of the Act states in pertinent part:

Authorized representatives of the Secretary…shall make frequent
inspections and investigations in coal or other mines each year for the purpose of
(1) obtaining, utilizing, and disseminating information relating to health and
safety conditions, the causes of accidents, and the causes of diseases and physical
impairments originating in such mines, (2) gathering information with respect to
mandatory health or safety standards,…and (4) determining whether there is
compliance with the mandatory health or safety standards or with any citation,
order or decision issued under this title or other requirements of this Act. 30
U.S.C. §813(a).

Section 103(h) of the Act states in pertinent part:      

In addition to such records as are specifically required by this Act, every
operator of a coal or other mine shall establish and maintain such records, make
such reports, and provide such information, as the Secretary ... may reasonably
require from time to time to enable him to perform his functions under this Act.
The Secretary ... is authorized to compile, analyze, and publish, either in summary
or detailed form, such reports or information so obtained. 30 U.S.C. §813(h).

Section 103 (e) of the Act states in pertinent part:

Any information obtained by the Secretary ... under this Act shall be
obtained in such a manner as not to impose an unreasonable burden upon
operators, especially those operating small businesses, consistent with the
underlying purposes of this Act. Unnecessary duplication of effort in obtaining
information shall be reduced to the maximum extent feasible. 30 U.S.C. §813(e).

The purpose and scope of 30 C.F.R. Part 50 is found in section 50.1 and states:

This part 50 implements sections 103(e) and 111 of the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. 801 et seq., and sections 4 and 13 of the
Federal Metal and Nonmetallic Mine Safety Act, 30 U.S.C. 721 et seq., and
applies to operators of coal, metal, and nonmetallic mines. It requires operators to
immediately notify the Mine Safety and Health Administration (MSHA) of
accidents, requires operators to investigate accidents, and restricts disturbance of
accident related areas. This part also requires operators to file reports pertaining
to accidents, occupational injuries and occupational illnesses, as well as
employment and coal production data, with MSHA, and requires operators to
maintain copies of reports at relevant mine offices. The purpose of this part is to
implement MSHA's authority to investigate, and to obtain and utilize information
pertaining to, accidents, injuries, and illnesses occurring or originating in mines.
In utilizing information received under part 50, MSHA will develop rates of
injury occurrence (incident rates or IR), on the basis of 200,000 hours of
employee exposure (equivalent to 100 employees working 2,000 hours per year).
The incidence rate for a particular injury category will be based on the formula:

IR = (number of cases x 200,000) divided by hours of employee exposure.

MSHA will develop data respecting injury severity using days away from
work or days of restricted work activity and the 200,000 hour base as criteria. The
severity measure (SM) for a particular injury category will be based on the formula:

SM = (sum of days x 200,000) divided by hours of employee exposure. 

Section 50.41 states:

Upon request by MSHA, an operator shall allow MSHA to inspect and
copy information related to an accident, injury or illnesses which MSHA
considers relevant and necessary to verify a report of investigation required by
50.11 of this part or relevant and necessary to a determination of compliance with
the reporting requirements of this part.

The preamble to the proposed rule at Section 50.41 sets forth the purpose of this
regulation and explains what MSHA (then the Mining Enforcement and Safety Administration
(“MESA”)) may request and the importance of cooperation with these requests:

Section 50.41 requires operators to allow MESA to inspect or copy any
information the agency thinks may be relevant and necessary for verification of
reports or for determination of compliance with Part 50. In effect, it allows
MESA to copy company medical records, employment records, and other
company information.

MESA believes that this provision is necessary if it is to be able to
develop epidemiologic data essential to development of effective health
standards. It is also necessary if MESA is to be able to discover instances of
intentional violation of statutory or regulatory requirements. It will allow MESA
to control the data flow, rather than depend upon operator filtered records. 42 Fed.
Reg. 55569 (1977).

The preamble to the final rule addressed privacy concerns and the need for
verification:

The patient-physician confidentiality privilege is not absolute. Where
disclosure of patient data is related to a valid purpose, disclosure has been held
not to be violative of privacy rights. It is questionable whether employers have
standing to assert employees’ privacy rights and significant that no miner or
representative of miners has objected to §50.41.

Without inspection of records beyond those required to be kept it is
impossible to verify the required records. The Secretary’s power to acquire
information related to his functions under the Coal Act and the Metal Act is not
limited to any particular records. Section 111 (b) of the Coal Act and § 13 of the
Metal Act explicitly authorize analysis of other information related to his
functions, and only the Secretary, subsequent to inspection and copying, can
determine relevance…42 Fed. Reg. 65535 (1977).

ARGUMENTS

Contestants contend, first, that the Act and MSHA Regulations do not require mine
operators to maintain and/or provide access to the medical and personnel records demanded by
the audit. Further, they contend that the heavy-handed, improper and unlawful attempt to gain
access to highly private and confidential information was an abuse of executive authority. Third,
they assert that MSHA has not engaged in the necessary notice and comment rulemaking
procedure to permit such arbitrary, wholesale, warrantless, and broad and burdensome requests
for hundreds of thousands of pages of records. Fourth, they argue that there is a constitutionally
protected expectation of privacy in records not explicitly required to be kept by law, as well as
legal record keeping obligations, and potential liability of the company under federal and state
laws. Thus, due to the foregoing reasons, they contend that the citations and orders issued to
Willow and Air Quality should be vacated.

The Secretary contends, in effect, that the plain meaning of the statutory and regulatory
language, and Court precedents, permit MSHA to access relevant and necessary records even if
they are not specifically required to be kept by the Act. Second, the regulations currently in
effect and applicable to audits implement the statutory mandate and provide for verification of
compliance with the reporting requirements, so no further rule making is required. Third, the
audit request is limited to information regarding reportable, work-related injuries and illnesses
and time and attendance data for a specific time period, and there is no reasonable expectation of
privacy in such records. Fourth, the requirements of Part 50 are important to MSHA’s mission of
improving mine health and safety; compliance with the reporting requirement cannot be verified
without the requested records. Finally, she argues that because of the foregoing, violations of
section 50.41 exist and, therefore, the citations and orders issued are valid.

QUESTIONS PRESENTED

While the issue to be decided is whether the citations and orders written to each of the
mines are valid, there are several questions for consideration:

-Are the medical, personnel, and timesheet records sought by the UAR relevant and
necessary to determine compliance with the reporting requirements of the regulations?

-Does the Secretary have the authority to request medical and employment records and
other company information pursuant to an audit request under the governing statutes and
Part 50 of the regulations?

-Does the UAR impose an unreasonable burden upon the operator?

DISCUSSION

Reporting accidents, injuries, and illnesses occurring at a mine is a well-known
and long-established requirement under the Act and the Part 50 regulations. 30 C.F.R.
§50.20. Definitions and instructions for reporting are provided in Sections 50.2(e)-(f),
50.20-3. The 7000-1 form is to be mailed to MSHA within ten (10) days of the accident,
injury, or illness. MSHA then uses this information, in combination with the 7000-2
form, which is a quarterly calculation of the hours worked by each employee at the mine,
to determine the mine’s incidence rate and severity measure. These numerical indicators
quantify a mine’s overall safety record and may be used to objectively view a particular
mine’s record in comparison to national averages.

The IR for a particular injury category is calculated by multiplying the number of
reportable incidents and the coefficient 200,000, and dividing that number by the total
hours of employee exposure. The SM for a particular injury category is calculated by
multiplying the total number of missed and restricted duty workdays and the coefficient
200,000 and dividing that number by the total hours of employee exposure. The
incidence rate is important in that it gives an overall picture of the safety record of the
operator. Energy West Mining Company, 15 FMSHRC 587, 591 (Apr. 1993). Knowing
the prevalence of specific types of injuries and their usual severity allows for more
efficient allocation of agency resources in developing strategies not only for enforcement
but also for training with the goal of improving the health and safety of miners.

The responsibility for reporting via the 7000-1 and 7000-2 forms at Willow and
Air Quality specifically belongs to the Safety Manager at the mine, who appears to be in
the best position to determine if a particular incident is reportable. However, the record is
not entirely clear as to how the Safety Manager learns of each and every injury or illness,
whether reportable or not.

Mike Baize, Safety Manager at Willow, testified that he is responsible for the
reports of injuries, coal production, and average [number] of employees. Baize receives
information from the employee’s supervisor, who fills out the initial report of injury. He
might also get a note from a doctor regarding return to work or restricted duty. Any
medical records are turned over to the Human Resources Department (“HR.”) Tr. 116-118. He stated that he was not privy to payroll, personnel, medical or Worker’s
Compensation files. Tr. 101, 114. However, should he need information, he could ask
HR for return to work information and the nature of an employee’s injury or illness. Tr.
114, 116.

Michael Middlemas, Manager of Health and Safety at Air Quality, testified that
he held the same position and had the same responsibilities as Baize. Tr. 124,125.
Middlemas testified that the only verification of the information on the 7000-1 and 7000-2 forms was essentially whatever information he put on the forms. Tr. 136, 137.

Chad Barras, Safety Director for both mines, testified that he had prior experience
at another mine preparing the 7000-1 and -2 documents, and with Part 50 reporting. Tr.
143,144. He stated that the foreman initially filled out the injury report, and the Safety
Manager would follow up with the foreman or the employee regarding days off and
return to work or restricted duty. Tr. 149-151.

Robert Grossman, Senior Manager of Human Resources at Willow, and before
August 2010, in a similar position at Air Quality, testified that he had the responsibility
for employee and union relations, payroll, benefits, and worker’s compensation. His
department maintains medical files, personnel change actions, payroll deduction
information and vacation and other leave information. Tr. 52-55, 63.

On direct examination, Mr. Grossman testified:

Q.  …Within your knowledge, does the Safety Department monitor those
sets of records that you’ve just described?

A.  No.

Q.  Do they have general and ready access to those records?

A.  No.

Tr. 55, 56

Grossman further testified that payroll records and timesheets had not been
provided to MSHA, and he decided that the medical records request, item no. 5 of the
UAR, would not be provided. Tr. 64, 66. In addition, he testified that even if given
weeks to produce the requested records, he would not provide them. Tr. 90.

The testimony of the safety officials of the mines illustrates an important point.
The Safety Manager, the person with the responsibility to submit the reports to MSHA,
must first be informed of an accident, injury, or illness of an employee. The flow of this
information is generally from the foreman, but the Safety Department may also receive
medical documents, which are turned over to and kept by HR. The Safety Manager may
follow up with the foreman or employee to complete the information to be reported, but
does not have access to the various medical files safeguarded by HR. To the contrary,
the time sheets, payroll records, worker compensation records and medical documents of
all types are in the exclusive possession and control of HR and are essentially “off limits”
to the Safety Manager and all other personnel. Tr. 55,65,74,75,77,91, Ex. C-K. No
evidence was produced at the hearing to suggest that HR would take the initiative to
provide relevant injury or illness time off information to the Safety Department.

Considering the volume of medical information that no doubt flows into HR, but
not available to the Safety Manager, there is at least the potential for relevant events to go
unreported. In addition, should the foreman or the employee fail to initiate a report to the
Safety Manager, it appears likely that an otherwise reportable event would escape the
notice (and hence the reporting responsibilities) of the Safety Manager. The resulting
lack of complete reporting could, of course, be inadvertent or unintentional. But the
result is the under-reporting of information needed by MSHA to discharge its duties and
responsibilities to compile and report incidence rates and severity measures as well as
manage the allocation of agency resources.

Over-reporting would also result in inaccurate information and misallocation of
resources. The mine would appear less safe than it actually is, and this could result in
increased inspections. However, this would rarely be the concern to be addressed. On
the other hand, there would be incentives to under-report injury and illness information to
MSHA.

If the total number of reportable incidents is under-reported, a mine, obviously,
will appear to be safer than it actually is. If the incidence rate and severity measure are
artificially low, an unsafe mine may be able to avoid enhanced MSHA scrutiny. Further,
an elevated severity measure is one criterion in the initial screening for establishing a
“pattern of significant and substantial violations.” 30 C.F.R. 104.2(b)(3), Ex. G-4. Once
this pattern has been established, the mine may be subjected to enhanced penalties and
possible forced shutdowns. 30 C.F.R. §104.4. If given the power to solely control the
information flow between itself and MSHA, an operator possesses incentives to constrict
that flow and under-report incidents at the mine.

The purpose of the Part 50 regulations is to implement MSHA’s authority not
only to investigate but also to obtain and utilize information pertaining to accidents,
injuries or illnesses occurring or originating at mines. 30 C.F.R. §50.1. In order to
develop effective health standards, control the data flow, and discover violations, MSHA
is allowed to inspect and/or copy any information the agency thinks may be relevant and
necessary to determine compliance with reporting requirements. This includes medical
records, employment records, and other company records. 42 Fed. Reg. 55569, 65535
(1977), 30 C.F.R. §50.41. Under §50.41, it was intended that MSHA would not depend
on operator-filtered records. Id. Forms 7000-1 and 7000-2, the only part of the audit
request complied with by the mines, are operator-filtered records. Tr. 79. Without the
cooperation of the operator, there can be no effective, independent verification of the
information submitted to MSHA.

The suggestion advanced by the Contestants that MSHA inspectors would have
the authority to interview miners with visible signs of injury could not serve to verify
complete and accurate reporting. Tr. 147, 152, 153. This suggestion is contained in a
MSHA handbook, where it is also stated that examination and comparison of state
workers’ compensation records to the MSHA reports (7000-1, 2 forms) may be
appropriate. Page 43, Metal and Nonmetal General Inspection Procedures Handbook, No.
PH09-IV-1 (Oct. 2009).

Peter Joseph Montali, Acting Director of Accountability for MSHA, testified that
the same audit request, the UAR, was sent to all 39 mines audited. Tr. 28. Mr. Montali
stated that the information reported on the 7000-1 and 7000-2 forms is used to determine
the national incidence rates and averages, which can be compared to the rates at a
particular mine. Tr. 19, 20, 22, 23. In a similar manner, the severity measure can also be
calculated and compared. In the affidavit of record, Ex. G-1, Mr. Montali reported he
had prior experience with Part 50 requirements. He pointed out that the medical records
requested by the audit are limited to accidents, injuries, and illnesses that occurred at the
mine or may have resulted from work at the mine. Also, he indicated that the payroll and
time sheet records were only to verify the total number of employees and the total hours
worked, as reported on the 7000-2 form. As to the various medical records, including the
worker’s compensation filings, Mr. Montali noted that these are cross-referenced with the
7000-1 forms submitted by the mine to verify proper and accurate reporting of all
required information, including permanent total or partial disability, days away from
work, restricted work activity, date of return to full duty, or no lost time. The drug-testing documents are limited to tests taken after an accident-causing injury, and the
medical claims forms are limited to a determination of whether a particular illness would
fit the definition of an “occupational Illness”. Id.

It is the operator who posses the means to ensure complete and accurate reporting.
Absent an audit of company records, MSHA must rely solely on the information
provided by the operator’s Safety Manager. If the company does not cooperate in the
process, there can be no assurance that the safety and health information compiled by
MSHA is correct.

In summary of the above discussion, the undersigned does not consider it to be an
overstatement that the complete and accurate reporting of accidents, injuries, and
illnesses occurring at mines is critically important to the mission of MSHA to protect the
health and safety of miners. “The health, safety and the very lives of coal miners are
jeopardized when mandatory health and safety laws are violated.” Youghiogheny and
Ohio Coal Company v. Morton, 364 F.Supp. 45, 50 (1973). From the stated intent in the
promulgation of 30 C.F.R. §50.41 it can be found that it is not what the operator
considers important to report; rather, it is what MSHA thinks is relevant and necessary to
verify reports or determine compliance with Part 50 of the regulations. It follows, then,
that the particular records sought by the MSHA audit are relevant and necessary to verify
compliance with all reporting requirements. Testimony confirms that the records are
either maintained by the mine or a third party, or stored, but not destroyed. Tr. 83 ,85.

FINDINGS AND CONCLUSIONS

Commission precedent in this area is rare and does not address the specific set of facts in
the instant case. In BHP Copper, 21 FMSHRC 758 (July 1999), a fall of ground caused the
death of one miner and the injury of another. Id. at 759. While MSHA inspectors were allowed
to interview several BHP employees, BHP would not provide the phone number and address for
the injured miner who had just been released from the hospital, stating that the information was
confidential. Id. In denying the contention of the operator, the Commission explained that the
Secretary has broad authority under the Act to investigate mine accidents and the operator may
not impede that investigation Id. at 765-766. The Commission also rejected the argument that
the Secretary must seek injunctive relief under Section 108 of the Act. Id. at 766.

A second, older Commission case is Peabody Coal Company, 6 FMSHRC 183 (Feb.
1984). Here, an inspector was refused access to accident reports because the operator had
already filed them with MSHA. Id. at 185. Peabody argued that because this inspection was of a
“type so random, infrequent, or unpredictable that the appellant, for all practical purposes, had
no real expectation that its property would from time to time be inspected by government
officials.” Id. Further, it asserted that, in order for MSHA to inspect, it must obtain a warrant. Id.
In disagreeing with the operator, the Commission found that a search warrant was not required
and since the Act required the operator to maintain the records of accidents for five years there
was no realistic expectation of privacy in them. Id. at 186.

Although these Commission cases involve conflicts over information contained in the
operator’s records, this is where the similarities end. No accident has occurred in the instant
case; rather, MSHA is conducting audits. MSHA is requesting documents to verify that no
accident, injury or illness has gone unreported, not investigating the facts and circumstances
surrounding such an incident. In this respect, neither BHP Copper nor Peabody specifically
addresses the questions raised by the compliance audit at hand.

In Sewell Coal Company, 1 FMSHRC 864 (1979)(ALJ), the Administrative Law Judge
(“ALJ”) held that MSHA could not inspect the private personnel files of a mine, in the absence
of a valid warrant. Id. at 872-873. In Sewell, a MSHA inspector began an inspection of the
foremen’s records, accident, injury and illness records and medical and compensation records at
the mine. Id. at 865. All of this information was contained in personnel records that contained
other data as well. Id. After the discovery of two instances of failure to report, the safety
manager informed the inspector that he would not be permitted to continue the inspection. In
characterizing the inspection, the ALJ maintained that Part 50 does not explicitly authorize the
warrantless search of personnel files containing medical and other information that may or may
not be related to accidents, injuries, and illnesses that are reportable. Id. at 873. The ALJ thus
held that MSHA could not inspect the private personnel files of a mine, in the absence of a valid
warrant. Id. at 872-873. The Contestants rely heavily on this decision.

However, the instant case can easily be distinguished from Sewell. First, the actions of
the MSHA inspectors here do not constitute warrantless searches; rather, they are simply
requesting that the operator produce certain documents. Unlike in Sewell, the inspector would
not be rummaging through the file cabinets or files of the operators.

At the hearing, it was
acknowledged that no physical access to files was requested. Tr. 184, 185. Each mine operator
would search his own files for this information, producing only those records meeting the
specifics of the request, thereby limiting the chance that unrelated private information would be
released to MSHA.

Second, this was not some wholesale demand that would cause the operator great cost
and burden to produce. MSHA’s request was for documents related only to those accidents,
injuries, and illnesses that occurred while working at the mine or as a result of work at the mine.
Moreover, MSHA is only requesting documents that were recorded within the span of one year.
The request concerns only employees, not family members, relatives, or others; if non-employee
medical or other records are maintained at the mine, they would not be required for the audit.
Any medical tests or Emergency Medical Transportation (“EMT”) records would concern only
the employee, and as to drug tests, only those conducted following an accident that caused an
injury. Ex. G-1, P. 3, ¶ 15. Family medical leave records involve care given by the employee,
and not relevant to the audit, since the time off would be reflected in other records used to fill
out the 7000-2 form. Tr. 53, 54, 57. In addition, only those employee disabilities occurring at
the mine or as a result of work at the mine need be disclosed, and not disability records of non-employees that might be in company files. Tr. 56. Similarly, both insurance claims and worker’s
compensation information are limited to employees of the mine during the one year period. The
timesheet and payroll records are to verify the hours actually worked and reported on the 7000-2
form, Ex. G-1, P. 2, ¶ 10. Banking information, including various deductions from pay, is not
needed. When other parts of the statute require the operator to keep records of accidents for a
period of five years

and the testimony revealed that the types of records sought are maintained
and not destroyed, Tr. 83-85, compiling records for only a one year period could hardly be
burdensome.

Third, as an ALJ decision, this case does not have value as precedent. Admittedly, if the
facts were so similar that they could barely be distinguished, I may have been persuaded to
consider its reasoning. However, for the reasons listed above, I find the facts in the instant case
to be so distinct, that Sewell does not provide guidance and is not controlling.

In the absence of controlling Commission precedent, we turn to the statutes, regulations
and case law for guidance. We begin by noting that the Mine Act and the implementing
regulations are to be liberally construed as long as the Secretary’s interpretation is reasonable
and promotes miner safety. Hanna Mining Co., 3 FMSHRC 2045, 2048 (Sept. 1981); Secretary
of Labor v. Cannelton Industries, Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989).

In Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984),
the Court explained that when confronted with review of an agency’s construction of the statute
it administers, a judge must consider two questions. The first is whether Congress has spoken to
the issue in question. Id. If so, the questions are at an end and the language must be enforced as
written. Id. If the statute is silent or ambiguous to the issue in question, however, the Court must
question whether the agency’s answer is a permissible interpretation of the language of the
statute. Id. In this instance, the agency’s interpretation must be reasonable, and if so, it will be
accorded deference. “…Considerable weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to administer….” Id. At 844.

The same analysis applies equally to the language and interpretation of the Secretary’s
own regulations. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as written unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results. Utah Power and Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Cyprus
Emerald Resources Corp., 20 FMSHRC 790 (Aug. 1998).

I find there is no need to go beyond the plain language of the statutes and regulations. In
Section 103(a)(1)(4) of the Act the Secretary is empowered to obtain and utilize information to
determine “…whether there is compliance with the mandatory health or safety standards or with
any citation, order, or decision issued under this title or other requirements of this Act”.
(Emphasis added). Section 103(h) of the Act broadens the scope of compliance actions by
explicitly stating “[i]n addition to such records as are specifically required by this Act, every
operator of a coal or other mine shall establish and maintain such records, make such reports,
and provide such information, as the Secretary…may reasonably require from time to time….”
(Emphasis added). These statutory provisions create a duty on the part of the operator to
maintain and provide records to MSHA for the agency to determine compliance with any
requirements of the Act. Hence, there would be a legitimate basis for enforcement of reporting
requirements even without the Part 50 rules. American Mining Congress, 995 F. 2d 1106, 1109
(1993).

The Contestants argue that the records sought are highly sensitive and private, and
granting the Secretary access to them would violate the privacy rights of its employees.
Although no one would argue against the notion that medical and personnel records are of a
highly sensitive and personal nature, there are certain important interests of the government that
override these concerns. MSHA, a public health agency, does have the authority to obtain
information to determine compliance with the above cited statutes, and permission from the
employees is not required. United Steelworkers of America, AFL-CIO-CLC, 647 F.2d 1189, 1241
(Jan. 1981). The disclosure of private medical information to a public health agency is a
reasonable exercise of government responsibility over public welfare where it is related to
occupational health and safety and does not violate any rights or liberties protected by the
Fourteenth Amendment. Whalen v. Roe, 429 U.S. 589, 597, 598, 602. Further, and importantly,
it may be concluded that the governmental interest in promoting mine safety far outweighs any
interest the mine operators may have in privacy. Youghiogheny at 51.

Even if the statutes were considered ambiguous, the Part 50 rules are legislative rules.
Their publication in 1977 satisfies the requirement that the rules have general applicability and
legal effect. American Mining Congress, at 1109, 1110. Entirely consistent with the statutory
mandate, the agency promulgated regulations, including 50.41, that also spelled out duties of the
operator to cooperate in determinations of compliance, Id. at 1110, 1111. Section 50.41 of the
regulations allows the Secretary “to inspect and copy information related to an accident, injury
or illnesses which MSHA considers…relevant and necessary to a determination of compliance
with the reporting requirements of this part.” (Emphasis added). Both the statutory and
regulatory provisions are clear in their purpose and intent to grant the Secretary authority to
request documents that are not specifically required to be kept under the Act. To find otherwise
would be to render these passages meaningless.

Further, as set forth and discussed above, the preambles to the controlling regulation, 30
C.F.R. §50.41, are instructive in that MSHA may request the employment, medical and other
records of the employer. The Secretary is authorized to inspect records in order to determine
reporting compliance. The reasoning is that reliance on the information provided in the required
forms by the operator itself would do very little to verify and ensure complete reporting. In
order to verify compliance, the Secretary must have some control over the flow of information.
The power to acquire information was not limited to any particular records, and only the
Secretary, subsequent to inspection and copying, could determine relevance. 42 Fed. Reg. 55569,
65535 (1977). The language of these preambles is persuasive.

The Health Insurance Portability and Accountability Act (“HIPAA”) created a national
framework for health privacy protection while also protecting the rights of consumers to access
their own health information. 45 C.F.R. §160.101. Without suggesting that HIPAA in any way
extends the Secretary’s authority to request records, it is significant from the standpoint of
expectations of privacy that it explicitly exempts “[a] public health authority that is authorized
by law to collect or receive such information for the purpose of preventing or controlling
disease, injury, or disability.” 40 CFR § 164.512. The preamble to the HIPAA regulations
specifically lists MSHA as one of the entities included as a public health authority. 65 Fed. Reg.
82624 (Dec. 28, 2000).

Moreover, and in consideration of the Contestant’s concerns regarding the possibility of
records containing both employee and non-employee information, the safeguards that MSHA
utilizes during its Part 50 audits to prevent disclosure of private information are adequate. The
agency has established specific procedures that must be followed when handling the records of
an operator’s employees. These include special filing procedures, locked storage, limited access,
safe transportation methods, and an alert that medical information is ordinarily exempt from
Freedom of Information Act (FOIA) disclosure. Ex. G-5. While no procedures are fool-proof,
these go a long way to ensuring that information will not be disclosed. Considering the
Congressional mandate to the agency, the controlling regulations, and the exemption from
HIPAA provisions, there can be no reasonable expectation of privacy in the records sought by
MSHA.

Having found that the Secretary does have the authority to request the records at issue in
these cases, I do not have to rule on the reasonableness of her interpretation of the statutes and
regulations. However, given the compelling need to verify reports and determine compliance, I
would have found her interpretation reasonable anyway. The request is limited to defined types
of documents that are necessary to further her mission to protect the safety and health of miners.
She is not requesting a wholesale search of all of the records of the operator, including those that
are irrelevant to the goals of the audit.

It follows also from the above discussion, that contrary to the Contestants’ arguments,
this is not arbitrary, ad hoc rulemaking that violates the necessary notice and comment
rulemaking procedures. The Secretary has interpreted “in addition to such records” to broaden
the document requesting power that she already possessed. She did not create new powers for
herself, as the Contestants contend. Her interpretation further defines that this phrase includes
employee time sheets, payroll records, medical records and such other documentation requested
as relates to work at the mine. The language of the Act lends itself to this interpretation and,
thus, the Secretary did not engage in arbitrary, ad hoc rulemaking.

In fact, legislative rulemaking has already been accomplished, in 1977, and there is no
need for additional rulemaking. The regulatory scheme under Part 50 is adequate for the
purposes of the audit. A reasonable interpretation of the statutory language would establish that
documents, in addition to those required to be kept under the Act, may be requested by the
Secretary from time to time as long as they are relevant and necessary. Specific types of
documents or information do not need to be named in either the statutes or the regulations.
There is no discernible inconsistency between the UAR and either the Act or the Part 50
regulations. The Secretary did not exceed her interpretation authority under Chevron analysis.

The Contestants further argue that the audit request amounts to a wholesale search of
private company records that cannot be obtained absent a valid search warrant. The most
obvious deficiency in this argument is that the Secretary is not demanding to rummage around in
the files of the operator. To the contrary, she is requesting that the Contestants produce the
documents for the Secretary. Moreover, the documents to be produced are limited by both
content and time. By its own description, the request is not a wholesale search. Even if the
UAR is considered to be a warrantless demand for the production of documents, as distinguished
from a warrantless search and/or seizure of company files, it still does not violate the Fourth
Amendment. It is authorized by law to verify compliance with the Act and regulations and
necessary to further a federal interest, the health and safety of miners. Where Congress has
allowed the agency access to the records, with the specific language of Section 103(h), in a
pervasively regulated industry, there cannot be an expectation of privacy. Donovan v. Dewey,
452 U.S. 594, 599, 600 (1981). Neither the 1987 opinion of Associate Solicitor Edward P. Clair
nor the recent statement of Assistant Secretary Joseph A. Main is helpful to the Contestants.
Since the current audit request is not a wholesale, warrantless search of the operator’s files, Mr.
Clair actually concludes in his opinion that verification of compliance by a Part 50 audit would
be entirely permissible. Ex. C-I, P. 3. Mr. Main’s statement suggesting that MSHA should have
subpoena powers does not undermine the Secretary’s authority to request the production of
documents under Part 50.

Finally, the Contestants argue that the information sought is overly broad, burdensome
and unreasonable. I have discussed, above, that the audit request is not burdensome. I also find
that it is neither overly broad nor unreasonable. The Secretary does not request every
documented injury or illness to every miner for a number of years. She is only requesting the
documentation of reportable injuries, illnesses, or accidents that occurred while working at the
mine or as a result of work at the mine. The UAR is for a lawful purpose. It is limited to the
span of one year’s time. Moreover, the records listed in #3 and #5 are maintained at the mine in
HR or at a known third party. The records are clearly described. Peabody has not established on
this record that the UAR is burdensome. In light of the significant limitations incorporated into
the audit request, it is not overly broad, burdensome or unreasonable.

I find that the Contestant mines failed to fully cooperate in the Part 50 audit and violated
30 C.F.R. §50.41. I further find that Citations 6670850 and 6670852, as modified, and Orders
6670851 and 6670853 issued to the Willow and Air Quality mines are valid.

ORDER

The valid Citations and Orders issued to the Contestant mines are AFFIRMED.

Kenneth R. Andrews

Administrative Law Judge 

Distribution:

Daniel W. Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave NW, Washington, DC
20004-2595

Samuel Charles Lord, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 1100
Wilson Blvd, 22nd Floor West, Arlington, VA 22209

/kmb