Big Ridge, Inc., Peabody Midwest Mining, LLC, Independence Coal Company, Inc., Inman Energy Corporation, Process Energy, Spartan Mining Company, Road Fork Development Company, Knox Creek Coal Corporation

Read the official release (fmshrc.gov)

Plain-English summary

Eight mine operators refused to produce payroll, time-sheet, and accident-related medical records requested during MSHA audits of Part 50 reporting, leading to section 50.41 citations and failure-to-abate orders. The Commission held that sections 103(a) and 103(h) of the Mine Act and 30 C.F.R. § 50.41 authorize MSHA to inspect records that operators are not otherwise required to maintain when the records are relevant and necessary to verify regulatory compliance. It found the one-year requests narrowly tailored and necessary to check whether accidents, injuries, illnesses, employment, and work hours had been accurately reported. The majority also found adequate privacy safeguards and rejected the operators' and miners' privacy, Fourth Amendment, Fifth Amendment, and conflicting-law arguments. The Commission affirmed all citations and orders, while Commissioner Michael F. Duffy dissented because he believed the records demand required notice-and-comment rulemaking and violated privacy and due-process protections.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.41
• Outcome: The Commission affirmed the citations and failure-to-abate orders against all eight operators.
• Key point: MSHA may require narrowly tailored payroll and medical records that are relevant and necessary to verify Part 50 reporting, even when no separate rule requires operators to maintain those records.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

`               FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, N.W.

SUITE 9500

WASHINGTON, DC 20001-2021

May 24, 2012

BIG RIDGE, INC. 

v. 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA) 

PEABODY MIDWEST MINING, LLC

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

INDEPENDENCE COAL COMPANY, INC.

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

INMAN ENERGY CORPORATION

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

PROCESS ENERGY

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

SPARTAN MINING COMPANY

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

ROAD FORK DEVELOPMENT COMPANY

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

KNOX CREEK COAL CORPORATION

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

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Docket Nos. LAKE 2011-116-R

LAKE 2011-117-R

Docket Nos. LAKE 2011-118-R

LAKE 2011-119-R

Docket Nos. WEVA 2011-402-R

WEVA 2011-403-R

Docket Nos. WEVA 2011-398-R

WEVA 2011-399-R

Docket Nos. KENT 2011-255-R

KENT 2011-256-R

Docket Nos. WEVA 2011-540-R

WEVA 2011-541-R

Docket Nos. KENT 2011-305-R

KENT 2011-306-R

Docket Nos. VA 2011-386-R

VA 2011-387-R

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners

These cases involve two sets of consolidated contest proceedings arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or
“Act”).

The Secretary of Labor (“Secretary”) issued citations alleging violations of 30 C.F.R.
§ 50.41,

and failure to abate orders to Big Ridge, Inc., and Peabody Midwest Mining, LLC
(jointly “Peabody” or “Peabody Petitioners”) for refusal to turn over records containing medical
and payroll information to inspectors of the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). The Secretary considered the records necessary to determine
compliance with regulatory reporting requirements. The Secretary issued substantively similar
citations and orders to Independence Coal Company, Inc., Inman Energy Corporation, Process
Energy, Spartan Mining Company, Road Fork Development Company, and Knox Creek Coal
Corporation (jointly “Massey” or “ Massey Petitioners”).

Administrative Law Judge Kenneth Andrews, in two separate decisions, upheld the
citations and orders upon finding that each of the operators had violated section 50.41 when they
failed to cooperate with a 30 C.F.R. Part 50 audit by refusing to provide the requested
information. 33 FMSHRC 1306, 1323 (May 2011) (ALJ); 33 FMSHRC 1387, 1404 (May 2011)
(ALJ).

Peabody and Massey subsequently filed petitions for discretionary review challenging
the judge’s decisions, which the Commission granted.

On July 1, 2011, Peabody filed an Application for Temporary Relief from the failure to
abate orders. On July 15, the Commission stayed enforcement of the orders until August 5,
2011. Shortly thereafter, various miners (“Intervenors”) objecting to the Secretary’s audit
requests collectively filed, through counsel, an unopposed motion to intervene, which was
granted by the Commission. On August 4, 2011, the Commission heard oral argument on the
application for temporary relief. By order dated August 5, 2011, the Commission lifted the stay
ordered on July 15 and ultimately denied Petitioners’ application on the basis that the conditions
for the extraordinary remedy of temporary relief pursuant to section 105(b)(2) of the Mine Act,
30 U.S.C. § 815(b)(2), had not been met. Unpublished Order dated Aug. 5, 2011.

The principal questions before us are: (1) whether the Secretary possesses the authority
pursuant to section 103(h) of the Mine Act, 30 U.S.C. § 813(h),

and 30 C.F.R. § 50.41, to
inspect and copy records, including personal medical information, not specifically required to be
maintained by the Mine Act or its implementing regulations; and (2) whether the records sought
by the Secretary in the subject proceedings are relevant and necessary to determine compliance
with the reporting requirements of Part 50.

For the following reasons, we affirm the judge’s decisions. We hold that, pursuant to the
plain language of section 103(h) of the Mine Act and the regulatory language of section 50.41,
the Secretary did not exceed her authority, and that the operators are required to make available
the requested records even though they are not specifically required to be maintained by the Act.
We conclude that the requested records and information are relevant and necessary to the
Secretary’s function of verifying operator compliance with Part 50 reporting requirements. We
also hold that the request does not violate any right to privacy, the Fourth Amendment right to
protection against warrantless searches, or the Fifth Amendment right to due process. Lastly, we
conclude that the Secretary’s request does not conflict with any other federal statutes or state
law.

I.

Factual and Procedural Background

Big Ridge, Inc. operates the Willow Lake Portal Mine in Illinois, and Peabody Midwest
operates the Air Quality # 1 Mine in Indiana. Peabody Tr. 52, 124, 131-32. Both mines are
underground coal mines regulated by MSHA Coal District 8. Big Ridge and Peabody Midwest
are subsidiaries of Peabody Energy Corporation. 33 FMSHRC at 1308.

Independence Coal operates the Justice No. 1 Mine, Inman Energy Corporation operates
the Randolph Mine, and Spartan Mining Company operates the Road Fork No. 51 Mine, all
located in West Virginia. See 33 FMSHRC at 1389-90. Knox Creek Coal Corporation operates
the Coal Creek Prep Plant located in Virginia. Id. Process Energy operates Mine No. 1 and
Road Fork Development Company operates the Love Branch South Mine, both located in
Kentucky. Id. During the relevant time period, each of the six aforementioned companies was a
subsidiary of Massey Energy Company. Id. 

In October 2010, MSHA began a nationwide initiative to conduct 39 audits to verify
operator compliance with Part 50 reporting requirements. 33 FMSHRC at 1308; 33 FMSHRC at
1390. In furtherance of that initiative, MSHA inspectors appeared at the Willow Lake and
Peabody Air Quality #1 mines on more than one occasion, requesting that the operators furnish
certain documents. 33 FMSHRC at 1308; Peabody Exs. A and D; S. Br. at 2. During the period
between October 2010 and April 2011, MSHA made the same request to Massey regarding its
six mines. 33 FMSHRC at 1390; S. Br. at 2.

In late October 2010, MSHA began issuing amended request letters to each of the mines
which superseded the previous requests. 33 FMSHRC at 1308; 33 FMSHRC at 1390. The
letters provided in pertinent part:

Please have the following information and documentation available
for review . . . . 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.

33 FMSHRC at 1308-09; 33 FMSHRC at 1391.

All mines provided MSHA with the 7000-1 and 7000-2 forms and the number of
employees. 33 FMSHRC at 1308-09; 33 FMSHRC at 1392; S. Br. at 3. However, Peabody’s
counsel responded by letters dated October 28 and 29, 2010, informing MSHA that Peabody
would not provide MSHA with access to the information outlined in request numbers 3 and 5
due to privacy concerns. 33 FMSHRC at 1309. Counsel for Massey also responded and
expressed concerns about the requests for medical records. 33 FMSHRC at 1391.

Both
counsels indicated that they 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.
33 FMSHRC at 1309; Massey PDR at 6.

Due to Peabody’s and Massey’s refusals, MSHA issued two citations to the Peabody
petitioners and six citations to the Massey petitioners for failing to provide the requested
information for the related mines in violation of section 50.41. 33 FMSHRC at 1309-10;
33 FMSHRC at 1392; S. Br. at 3. After the operators continued to refuse to furnish the
information, MSHA issued orders pursuant to section 104(b) of the Act, 30 U.S.C. § 814(b), to
each mine for failing to abate the violations. 33 FMSHRC at 1309-10; 33 FMSHRC at 1392; S.
Br. at 3. Peabody and Massey timely contested the citations and orders. 33 FMSHRC at 1310;
S. Br. at 3. The contests were expedited and proceeded to hearings before Judge Andrews on
December 14 and 16, 2010.    The Secretary agreed to postpone assessment of civil penalties until
the judge issued his decisions. Peabody Tr. 186-89.             

The judge affirmed the citations and orders in separate decisions issued on May 20 and
23, 2011. He found that section 103(h) of the Act and 30 C.F.R. § 50.41 are clear in their
purpose and intent, and that each individually authorizes the Secretary to request information not
specifically required to be maintained by the Act. 33 FMSHRC at 1320-21; 33 FMSHRC at
1401-02. The judge found support in the preamble to section 50.41, which specifically addresses
the Secretary’s need to access medical and employment records. 33 FMSHRC at 1321;
33 FMSHRC at 1402. In reaching his conclusion, the judge emphasized 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.” 33 FMSHRC at 1317;
33 FMSHRC at 1398. He found that, given the particular information flow regarding reportable
incidents at the mines, there is a potential for relevant incidents or information to go unreported
to the mines’ safety managers. 33 FMSHRC at 1315-16; 33 FMSHRC at 1396-97. He also
noted that if an operator possessed the sole power to control the flow of information to MSHA,
there would be an incentive to under-report injury and illness information. 33 FMSHRC at 1316;
33 FMSHRC at 1397. The judge concluded that because legislative rulemaking had already
taken place in 1977, no additional rulemaking was necessary to enable the Secretary to exercise
this particular authority. 33 FMSHRC at 1322; 33 FMSHRC at 1403.

Although the judge acknowledged the highly sensitive nature of the disputed records, he
found that the governmental interests of MSHA overrode the privacy concerns raised by the
operators and its employees. 33 FMSHRC at 1320; 33 FMSHRC at 1401. The judge concluded
that MSHA, as a public health agency, possesses the authority to obtain information to determine
compliance with the Mine Act. 33 FMSHRC at 1321; 33 FMSHRC at 1402. He found that,
when it is related to occupational safety and health, the disclosure of private medical information
to MSHA is a reasonable exercise of government responsibility for the public welfare and does
not violate any rights or liberties protected by the Constitution. 33 FMSHRC at 1320, 1322;
33 FMSHRC at 1401, 1403. Given that mining is a pervasively regulated industry, the judge
concluded that under the clear language of section 103(h), neither Peabody nor Massey could
have had a reasonable expectation of privacy in the disputed records. 33 FMSHRC at 1322;
33 FMSHRC at 1403.

The judge also distinguished the present case from Sewell Coal Co., 1 FMSHRC 864
(July 1979) (ALJ), where the Secretary’s request was considered by the judge to be a “wholesale
warrantless search” of private company records. Judge Andrews found that unlike in Sewell, the
Secretary requested that the companies produce the records themselves, that she limited the
documents in time and scope, and that she is authorized by law to access the records.
33 FMSHRC at 1318-19, 1322; 33 FMSHRC at 1400, 1403. The judge, noting the limitations
placed on the request, also rejected the Petitioners’ argument that the request was unreasonable,
overly broad, and burdensome and concluded that the Secretary appropriately limited the
requested records. 33 FMSHRC at 1322-23; 33 FMSHRC at 1403. The judge further
determined that the safeguards put in place by MSHA to prevent disclosure of private
information were adequate. 33 FMSHRC at 1321; 33 FMSHRC at 1402.

II.

Disposition

A.Whether the Secretary was authorized to demand production of records not
required to be maintained by statute or regulation.

Petitioners and Intervenors argue that the Secretary may only require the production of
documents that are required to be kept by statute or regulation. They assert that the plain
language of section 103(h) of the Act and 30 C.F.R. § 50.41 does not grant the Secretary the
broad authority to demand access to Petitioners’ confidential records. Petitioners, citing Am.
Mining Cong. v. MSHA, 995 F.2d 1106, 1109 (D.C. Cir. 1993), maintain that the Secretary must
first engage in notice-and-comment rulemaking to create such a duty before it can be enforced.
Intervenors assert that it is unreasonable for MSHA to demand production of medical records
because section 50.41 does not define MSHA’s ability to access such records. Peabody argues
that the Secretary’s interpretation is owed no deference because this is a purely legal question and
does not require consideration of regulatory expertise or policy.

The Secretary responds that the judge properly accepted her interpretation of sections
103(a) and (h) of the Act, as well as section 50.41 of the regulations. She submits that her
interpretation (that she may inspect and copy records not required by law to be maintained) is
further supported by the preambles of proposed and final rulemaking of section 50.41. The
Secretary maintains that unlike in Sewell, which involved a request for files that contained both
relevant and non-relevant personnel and medical information, the Secretary’s present request is
in the nature of a subpoena duces tecum requiring access to only specified information. She
contends that because section 50.41 plainly authorizes her request, and because section 50.41
was promulgated pursuant to notice-and-comment rulemaking, the argument that her request was
not reasonable because she did not go through notice-and-comment rulemaking fails. The
Secretary argues that Petitioners’ interpretation would erroneously limit her authority to access
only records, reports, and information specifically required to be maintained by the Act, which
would hinder her ability to perform her functions as required by Congress. She states that their
interpretation would also render Congress’ use of the term “information” superfluous, because if
Congress had intended to require operators to provide only documents they were required to
maintain, it would have used the term “such records” instead of the more encompassing term
“such information” in section 103(h). She asserts that Petitioners’ interpretation is inconsistent
with the legislative history of section 103(h) because Congress intentionally deleted from the text
of the final bill the rulemaking requirement that had appeared in several drafts of the legislation.
She argues that even if the language is not plain, her reasonable interpretation is due deference.

1.         30 U.S.C. § 813

In considering the question of statutory construction, our first inquiry is “whether
Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,
584 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its language. See
Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44
(D.C. Cir. 1990). Deference to an agency’s interpretation of the statute may not be applied “to
alter the clearly expressed intent of Congress.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988) (citations omitted). In ascertaining the “plain meaning” of the statutory language and
Congress’ intention regarding a specific question at issue, we employ the “traditional tools of
statutory construction,” including an examination of the statute’s text, legislative history, and
structure, as well as its purpose. Id.; Local Union 1261, UMWA, 917 F.2d at 44; Coal Emp’t
Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989); Bell Atl. Tel. Cos. v. FCC, 131 F.3d
1044, 1047 (D.C. Cir. 1997).

At the outset, we note that the Secretary has broad authority to conduct inspections and
investigations under section 103(a) of the Act. Section 103(a) provides in part that an authorized
representative of the Secretary shall conduct inspections and investigations in order to obtain,
utilize, and disseminate “information relating to health and safety conditions, the causes of
accidents, and the causes of diseases and physical impairments” originating in the mines.
30 U.S.C. § 813(a). It also authorizes such inspections and investigations to determine “whether
there is compliance with the mandatory health or safety standards or with any citation, order, or
decision issued under the subchapter or other requirement of this chapter.” Id. This language
makes clear that the Secretary is authorized to verify operator compliance with the Act and
MSHA regulations. The Secretary’s audit initiative falls squarely within this function, as it is an
important tool in carrying out the duty to determine that operators are providing complete and
accurate reports regarding all accidents, injuries, and illnesses occurring at our nation’s mines.

The plain language of section 103(h) provides a broad Congressional grant of authority to
the Secretary to carry out this audit initiative. Section 103(h) states in pertinent part:

(h) Records and reports; compilation and publication; availability

In addition to such records as are specifically required by this
chapter, 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 chapter.

30 U.S.C. § 813(h) (emphasis added). The language of section 103(h) does not limit the
Secretary’s access only to records that are specifically required to be maintained or prescribed by
regulation, but instead gives her authority to request whatever information she deems relevant
and necessary. Congress gave clear instructions that “information” that is not specifically
required to be maintained by the Act shall, nonetheless, be provided to the Secretary to enable
her to perform her functions, as long as the request is reasonable. This language effectively
expands, rather than restricts, the Secretary’s right of access. See also United States v.
Westinghouse Elec. Corp., 638 F.2d 570, 575 (3rd Cir. 1980) (because a regulation gives NIOSH
authority to examine “other related records,” which it reasonably regards as records related to the
purpose of the investigation, the court would not limit NIOSH’s examination of employee
medical records to records which must be retained by specific provision of the statute or
regulations). As the judge in this case determined, section 103(h) creates “a legitimate basis for
enforcement of reporting requirements even without the Part 50 rules.” 33 FMSHRC at 1320;
33 FMSHRC at 1401, citing Am. Mining, 995 F.2d at 1109.

In addition, the text of section 103(h) is consistent with, and reinforced by, other sections
of the Act. For instance, sections 108(a)(1)(E) and (F) state that “the Secretary may institute a
civil action for relief . . . whenever such operator or his agent . . . refuses to furnish any
information or report requested by the Secretary . . . in furtherance of the provisions of this Act,
or refuses to permit access to, and copying of, such records as the Secretary . . . determines
necessary in carrying out the provisions of this Act.” 30 U.S.C. §§ 818(a)(1)(E), (F). Like
section 103(h), sections 108(a)(1)(E) and (F) require that operators provide information to the
Secretary without limiting this mandate to information an operator is legally required to maintain.

The legislative history is also instructive. According to the Joint Explanatory Statement
included in the Conference Report of the Mine Act, with regard to section 103(h), “. . . the House
amendment . . . authorized the Secretary to require records, reports, and other information not
otherwise specified by the Act. The conference substitute conforms to the House amendment.”
S. Rep. No. 95-461, at 47 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1325 (1978).
Thus in resolving issues regarding the scope of the Secretary’s authority to require records from
operators, Congress chose the House approach, which broadly authorized the Secretary to obtain
records and other information not otherwise specified by the Act. Significantly, Congress
rejected earlier proposed versions of this section, which had limited the Secretary’s access to
operators’ records to those specific records which the Secretary had “prescribe[d] by regulation.”
S. 717, 95th Cong., at 20, reprinted in Leg. Hist. at 129; H.R. 4287, 95th Cong., at 20, reprinted
in Leg. Hist. at 207.

Courts of appeals have recognized the broad scope of section 103(h). In Energy West
Mining Co. v. FMSHRC, 40 F.3d 457 (D.C. Cir. 1994), the court affirmed the Commission’s
decision that MSHA could reasonably require the reporting of an accident involving a miner’s
personal automobile on mine property before the start of the work shift. The court stated, “[t]he
Mine Act grants a broad delegation to the Secretary . . . ‘to perform [her] functions under this
chapter.’ 30 U.S.C. § 813(h).” Id. at 461.

Hence, given the plain meaning of section 103, particularly read in the context of other
sections and the legislative history, we conclude that the Secretary did not exceed her statutory
authority by demanding the information outlined in numbers 3 and 5 of her request.

2.         30 C.F.R. § 50.41

In considering the Secretary’s authority under the Part 50 regulations, we recognize that
where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written, unless the regulator clearly intended the words to have a different
meaning, or unless such a meaning would lead to absurd results. Jim Walter Res., Inc., 28
FMSHRC 983, 987 (Dec. 2006) (quoting Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.
1987) (citation omitted)); Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001); Lopke Quarries,
Inc., 23 FMSHRC 705, 707 (July 2001); Jim Walter Res., Inc., 19 FMSHRC 1761, 1765 (Nov.
1997).

The purpose of Part 50 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.” 30 C.F.R. § 50.1. Consequently, operators are required to report to MSHA every
accident, injury, and illness on a 7000-1 form. 30 C.F.R. § 50.20(a). They are also required to
report the average number of employees working and the total employee-hours worked during
the quarter on a 7000-2 form. 30 C.F.R. § 50.30 & 30-1(g). MSHA is tasked with using the
information to develop rates of injury occurrence or incident rates (“IR”). 30 C.F.R. § 50.1. In
particular, MSHA determines national incidence rates, averages, and severity rates, which can be
compared to the rates at a particular mine. 33 FMSHRC at 1317. The IR is calculated by the
total number of occupational injuries, illnesses, and accidents reported in a calendar quarter,
multiplied by a constant 200,000, and divided by the total number of employee-hours worked
during the quarter. 30 C.F.R. § 50.1; see Energy West Mining Co., 15 FMSHRC 587, 591 (Apr.
1993); Consol. Coal Co., 14 FMSHRC 956, 959 (June 1992). These incident rates provide a
general picture of the safety record of a mine operator. Energy West, 15 FMSHRC at 591.

The text of section 50.41 reinforces the Secretary’s authority, as well as the operator’s
responsibility, in that it spells out the role each must play in determining compliance with Part

50. As noted above, it provides that:

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.

30 C.F.R. § 50.41.

Thus, section 50.41 requires that operators provide MSHA with access to “information”
related to accidents, injuries, or illnesses occurring at their mines. The only limitation on the
Secretary’s authority is that the information must be “relevant and necessary” to a determination
of Part 50 compliance. Like section 103(h) of the Act, section 50.41 of MSHA’s regulations
lacks any language restricting the Secretary’s access to any particular documents.

The preambles to the proposed rule and final rule for section 50.41 provide strong support
for the Secretary’s broad right of access, as they discuss the very documents requested by the
Secretary in this case. The preamble to the proposed rule explains the scope of authority of the
Mining Enforcement and Safety Administration (“MESA”) (the predecessor to MSHA) to
request certain information, as well as the importance of operator cooperation:

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. 55568, 55569 (Oct. 17, 1977). The preamble to the final rule further states:

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 h[er] 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 h[er] functions,
and only the Secretary, subsequent to inspection and copying, can
determine relevance. This is particularly important in development
of an epidemiologic data base, where information not reported on a
Part 50 form can help identify disease related agents or practices.

42 Fed. Reg. 65534, 65535 (Dec. 30, 1977).

The preamble to the proposed rule plainly illustrates that the Secretary intended section
50.41 to provide access to operator medical records when necessary to determine compliance,
develop epidemiologic data, and uncover instances of intentional violations of the Act. It
confirms that the term “any information” includes company medical records, employment
records, and any other company information the Secretary deems relevant and necessary. See 42
Fed. Reg. at 55569. The preamble to the final rule explains that barring the Secretary from
access to “records beyond those required to be kept” would make it impossible to verify the
required records. 42 Fed. Reg. at 65535. It also plainly states that the “Secretary’s power to
acquire information related to h[er] functions under the . . . Act . . . is not limited to any
particular records.” Id. (emphasis added).

Consistent with the judge’s determination, we conclude that 30 C.F.R. § 50.41 plainly
requires that operators provide the Secretary with access to the disputed records and information
for the purpose of verifying operator compliance with Part 50.  

In addition, because section 50.41 was promulgated more than 30 years ago pursuant to
notice-and-comment rulemaking, and section 50.41 grants the Secretary access to the disputed
records, we reject Petitioners’ argument that additional notice-and-comment rulemaking is
necessary to enforce section 103(h). The very concerns raised by Petitioners here (including, as
discussed below, the privacy concerns) were discussed in the preambles and, therefore,
considered by the agency in making a reasoned determination on the applicability of the statute
and regulations to the records discussed therein.

3.         Commission Case Law

Petitioners assert that the decisions in Sewell Coal, 1 FMSHRC at 869-72, and Peabody
Coal Co., 6 FMSHRC 183, 186 n.5 (Feb. 1984), support their claim that the Secretary cannot
require the production of documents which the statute does not require them to maintain.

Our conclusion that the Secretary did not exceed her authority under section 103 of the
Mine Act or section 50.41 of her regulations by requiring the operators to disclose the disputed
information is consistent with relevant precedent. In BHP Copper, Inc., 21 FMSHRC 758, 759
(July 1999), an operator refused the Secretary’s request to provide an injured miner’s telephone
number and address after a serious accident. The Commission concluded that BHP’s refusal to
disclose the employee’s address and telephone number violated section 103(a) of the Mine Act.
Id. at 769. While noting that its holding was fact-specific and did not address the disclosure of
other information not at issue in that case, id. at 767 n.15, the Commission stated that nothing in
section 103(a) or any other section of the Mine Act limits the Secretary’s investigative powers to
accessing only information required to be maintained by regulation. Id. at 766.

While BHP Copper supports our holding, the cases Petitioners have cited are clearly
distinguishable. Sewell is an unreviewed ALJ decision and therefore not a binding precedent. In
any event, we agree with Judge Andrews that its reasoning is inapposite, because the Secretary’s
request here is not a “wholesale warrantless search.” See 33 FMSHRC at 1318-19, 1322; 33
FMSHRC at 1400; see also Sewell Coal, 1 FMSHRC at 872. The request before us in this case
is limited in time and scope, narrowly tailored to the Secretary’s functions under the Act, and
does not involve MSHA representatives personally rummaging through Petitioners’ file cabinets
or computer systems. Moreover, the 1984 Peabody decision, relied upon by Petitioners, is of
little relevance to the issue before us because that case involved the disclosure of records the
operator was required to maintain, and the Commission simply noted that the case, therefore, did
not present the situation faced in Sewell. 6 FMSHRC at 186 n.5.  

Based on the foregoing, we hold that pursuant to sections 103(a) and (h) of the Act and
30 C.F.R. § 50.41, operators are required to provide the Secretary with access to records not
specifically required to be maintained by the Mine Act or regulations promulgated under the Act,
as long as they are relevant and necessary to a determination of operator compliance with Part 50
reporting requirements. Because the statutory and regulatory provisions are clear, we do not need
to reach the Secretary’s deference argument.

B.        Whether the requested records and information are relevant and necessary.

We conclude that the records and information requested by the Secretary in these cases
are “relevant and necessary” for her to carry out her responsibilities to audit compliance with the
Mine Act within the meaning of 30 C.F.R. § 50.41. As Judge Andrews stated, “ . . . 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.” 33 FMSHRC at
1317. Former Chief Judge Merlin described the importance of accurate reporting in
Consolidation Coal Co., 9 FMSHRC 727, 733-34 (Apr. 1987) (ALJ):

. . . Part 50 is the cornerstone of enforcement under the Act. Since
Part 50 statistics provide the basis for planning, training and
inspection activities, accurate reporting is essential. Moreover,
failure to accurately report could have extremely dangerous
consequences by concealing problem areas in a mine which should
be investigated by MSHA inspectors. In short, without proper
compliance by the operator under Part 50, the Secretary could not
know what is going on in the mines and, deprived of such
information, [she] would be unable to decide how best to meet
[her] enforcement responsibilities.

In Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1364 (Dec. 2000), the Commission
stated that “one of the purposes of the reporting requirements under 30 C.F.R. Part 50 is to allow
MSHA ‘to identify those aspects of mining which require intensified attention with respect to
health and safety regulation.’ 42 Fed. Reg. 55,568, 55,568 (1977).”

In her effort to perform the function of verifying operator compliance with Part 50, the
Secretary seeks the medical records, payroll, and time sheet information upon which the
operators relied to complete the 7000-1 and 7000-2 forms covering the period from July 1, 2009,
through June 30, 2010. The payroll and time sheet records are used to verify the total number of
employees and the total hours worked, as reported on the 7000-2 forms. 33 FMSHRC at 1317;
33 FMSHRC at 1397. The various documents containing medical information – including
medical records, doctors’ slips, worker’s compensation filings, sick leave requests, drug testing
information, emergency medical transportation records, and medical claim forms – are used to
verify that the operators have been properly and accurately reporting on the 7000-1 forms all
accidents, and work-related injuries or illnesses at the mines over the course of one year.
33 FMSHRC at 1317; 33 FMSHRC at 1397-98; S. Ex. G-1.

More specifically, the medical records contain important information about the cause,
severity, duration, and treatment of occupational injuries and illnesses. S. Ex. G-1. They can
help MSHA determine if an operator properly designated a workplace injury as one resulting in
permanent total or partial disability, days away from work, and days of restricted work activity.
Id. The doctors’ slips contain information about the severity of an injury, treatment, and
expected date that an injured miner would be expected to return to work or return to full duty. Id.
The workers compensation documents, containing information concerning workplace injuries
and illnesses, will be cross-referenced with the information reported on the 7000-1 forms. Id. A
sick leave request details an employee’s absence and can indicate whether a previously
unreported workplace injury occurred. Id. The drug testing documents are related and limited to
tests taken after a workplace injury or accident has occurred. Id. Emergency medical
transportation documents will be cross-referenced with 7000-1 forms because they identify
employees who required medical assistance due to workplace injuries. Id. Lastly, the medical
claims help identify previously unreported workplace accidents, injuries, or illnesses, and assist
in establishing whether an illness fits the regulatory definition of “occupational illness.” Id.
Based on the clear correlation between the records sought and the completed Part 50 forms
provided by the operators, we conclude that the requested records are relevant to MSHA’s audit
initiative.

The necessity for MSHA to collect such information is illustrated by the process in which
reportable information is transmitted to the safety departments and maintained by the mine
operators. 33 FMSHRC at 1315-17; 33 FMSHRC at 1396-97. Company safety officials testified
that although they are responsible for completing and submitting the 7000-1 and 7000-2 forms to
MSHA, they do not have direct access to the information upon which they are reporting. Id. at
1315. They must first be informed of a reportable incident, which is generally done by the
foreman, either verbally or by a foreman’s accident report. 33 FMSHRC at 1315; 33 FMSHRC
at 1396. They may have access to the initial medical treatment information, but this information
is then turned over to and maintained by either the human resources department (“HR”) or a third
party. 33 FMSHRC at 1314-17; 33 FMSHRC at 1396-97; Peabody Tr. 78; Massey Tr. 95-96.

If MSHA were denied the ability to audit mine operator records, it would be forced to rely
solely on the information provided by the company safety officials. MSHA would not be able to
verify the accuracy of the reports. This is contrary to the preamble to 30 C.F.R. § 50.41, which
specified that in carrying out its mission of verifying operators’ reports of accidents, injuries, and
occupational illnesses, MESA (now MSHA) must “control the data flow, rather than depend
upon operator filtered records.” 42 Fed. Reg. at 55569.

Thus, company safety officials responsible for completing the Part 50 forms must rely on
other mine employees to provide them with all pertinent information on reportable incidents at
the mine. These safety officials lack direct and critical access to the actual information needed to
report on these forms, and thereby lack the ability even to verify for themselves the accuracy of
the information they are reporting. The potential for incidents to go unreported or misreported is
a genuine and justifiable concern for MSHA. Flawed incident reporting will result in an
inaccurate and misleading understanding of the true safety conditions at a particular mine.

We agree with Judge Andrews’ insightful observation concerning the incentive to under-report injury and occupational illness 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.

33 FMSHRC at 1316. Peabody asserts that the judge’s statement represents a prejudicial error,
claiming that it was error to assume mine operators under-report accidents, illnesses, and injuries.
Peabody Br. at 31. We are not suggesting that all operators, or even a majority of operators,
under-report accidents, injuries, and occupational illnesses. However, just as there is a need for
the Internal Revenue Services to audit tax returns, there is a need to review the underlying
information that serves as the basis for the 7000-1 forms submitted by mine operators.

Petitioners suggest that MSHA could verify the information by interviewing individual
miners. Massey PDR at 14; 33 FMSHRC at 1316; 33 FMSHRC at 1397. We disagree.
Although MSHA may conduct interviews in addition to inspecting operator records, this
approach alone would be insufficient to verify operator compliance.

Miners may be reluctant to
share personal information with MSHA officials and/or reluctant or fearful to cooperate with
inspectors conducting compliance audits of their employers. Such an undertaking would be
cumbersome and time consuming and would likely yield insufficient information. One of the
types of possible under reporting is the non-reporting of injuries and occupational diseases. If an
injury or occupational disease simply is not reported by an operator, MSHA would not be able to
conduct an interview because it would not know of the existence of the injured or sick miner.

We conclude that, in order to determine whether an accident, injury or illness has been properly
reported, it is necessary for MSHA to consult the relevant medical and employment records
pertinent to that incident.

The requested records are limited in time – “the period of July 1, 2009 through June 30,
2010” – and scope – “relating to accidents, injuries, or illnesses that occurred at the mine or may
have resulted from work at the mine” – and narrowly tailored to carrying out a specific function
of the Secretary under the Mine Act. See S. Ex. G-7. Accordingly, we conclude that not only is
the Secretary’s request “relevant and necessary,” but it is reasonable and neither overly broad nor
burdensome. Under the circumstances, we thus find it unreasonable to expect the Secretary,
whose duty it is to ensure compliance with the Act, to rely solely on the representations made by
company officials when carrying out the important duty of verifying company reporting.

C.        Whether Petitioners’ constitutional challenges have merit.

1.         Right to privacy

The Intervenors, a group of miners, argue that they as individuals possess a strong and
legally protected personal privacy interest in maintaining the confidentiality of their medical
records. They maintain that their personal privacy interests are not lost merely because mine
operators have no reasonable expectation of privacy in a mine’s working areas. Petitioners
further assert that MSHA’s procedures for safeguarding the records obtained are inadequate and
that the judge’s contrary findings are erroneous.

Courts have yet to establish with certainty whether the Constitution confers to individuals
a right to privacy regarding disclosure of their private information. See Whalen v. Roe, 429 U.S.
589, 598-600 (1977) (suggesting that such a right exists); Nixon v. Admin. of Gen. Servs., 433
U.S. 425, 456 (1977) (acknowledging the existence of a right to informational privacy); Nat’l
Aeronautics & Space Admin. v. Nelson, 131 S.Ct. 746, 751 (Jan. 2011) (“NASA”) (recognizing,
without deciding, that there may exist an informational right to privacy); but see AFGE, AFL-CIO v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997) (expressing grave
doubts as to the existence of a constitutional right to informational privacy, and stating that the
Supreme Court has yet to resolve the issue). However, in recognizing that such a right may exist,
courts have held that the right must yield to informational requests by the government when the
requests are reasonably related to a proper governmental interest and there are safeguards in place
to protect from disclosure of information. See Whalen, 429 U.S. at 597-98; NASA, 131 S.Ct. at
759, 761; Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 621 (1989).

The challenged portions of the Secretary’s audit contain reasonable requests for accident,
injury, and illness-related information that further MSHA’s interest in regulating and ensuring
the health and safety of the nation’s miners. Lending additional support is the preamble to the
final rule, which specifically addresses the privacy concerns surrounding the Secretary’s authority
to access sensitive information:

Some parties objected to § 50.41, asserting that it invades
employees’ privacy rights respecting medical data and improperly
authorizes inspection and copying of records not specifically
required to be maintained, including trade secrets and other internal
company information. Many feared disclosure of any information
copied.

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.

42 Fed. Reg. at 65535. Thus, the issue of privacy protection for medical data was raised and
considered by MSHA’s predecessor agency when promulgating section 50.41. It was ultimately
decided that, under the circumstances, disclosure would not violate miners’ privacy rights. We
agree.

The courts have recognized that the privacy interests of employees in their medical
records may need to yield to the public interest being furthered by governmental agencies
responsible for protecting employee health. As Commissioner Duffy points out in his dissent,
slip op. at 32-33, n.1, “[t]here can be no question that [employees’] medical records [fall] well
within the ambit of materials entitled to privacy protection” (citing United States v.
Westinghouse, 638 F.2d at 577). The Westinghouse court went on to say that “even material
which is subject to protection must be produced or disclosed upon a showing of proper
governmental interest.” Id. The court in Whalen further stated that:

[D]isclosures of private medical information to doctors, to hospital
personnel, to insurance companies, and to public health agencies
are often an essential part of modern medical practice even when
the disclosure may reflect unfavorably on the character of the
patient. Requiring such disclosures to representatives of the State
having responsibility for the health of the community, does not
automatically amount to an impermissible invasion of privacy.

Whalen, 429 U.S. at 602 (emphasis added) (footnote omitted).

Although we recognize the Intervenor miners’ sensitivity to the release of their records
without their consent, the Secretary’s clearly articulated need for this information to carry out her
important functions under section 103 of the Mine Act and the Part 50 regulations, as well as her
commitment to safeguard the information, must prevail against the claimed individual privacy
interests. Thus, the governmental interest in regulating occupational safety and health in a
notoriously dangerous industry outweighs the privacy interests of any individual miner and
plainly justifies MSHA’s audit requests.

In addition, MSHA has put in place certain protocols to safeguard the miners’ personal
information.

The protocols include the secure transport of personal information, filing
procedures, locked storage, limited access to authorized users, access control system, and the
destruction and disposal of information pursuant to the General Record Schedule NC1-433-85-1,
or court order. S. Ex. G-5. We find that the protocols are adequate and must be viewed in light
of the agency’s attempt to meet valid, good-faith concerns about securing personal information.

In summary, the preamble to section 50.41, the statutory and regulatory limitations placed
on the Secretary’s request, MSHA’s clear need for the information, and the safeguards
established to protect the information, are compelling. Therefore, as the ALJ found,
33 FMSHRC at 1320-21, to the extent that any such privacy right exists, we conclude that the
Secretary’s records request, narrowly tailored to further MSHA’s compelling governmental
interest, does not violate that right.

2.         Fourth Amendment arguments

Petitioners and Intervenors submit that the Fourth Amendment’s protection against
warrantless searches provides employers with a reasonable expectation of privacy in records that
are not required to be maintained by law, and provides employees with an expectation of privacy
in their personal medical records. The Secretary, citing RSM, Inc. v. Buckles, 254 F.3d 61, 69
(4th Cir. 2001), responds that her request in this case is in the nature of a subpoena duces tecum,
thus satisfying Fourth Amendment requirements that it be sufficiently limited in scope, relevant
in purpose, and specific in directive so that compliance will not be unreasonable. She further
argues that, in the event her request is deemed a warrantless inspection, it satisfies the three-prong test for such inspections set forth in Donovan v. Dewey, 452 U.S. 594, 599 (1977).

The threshold question in deciding this issue is whether the operators and miners have a
reasonable expectation of privacy concerning the records requested by MSHA. As the Supreme
Court noted in Oliver v. United States, 466 U.S. 170, 177 (1984):

Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967), the touchstone of [Fourth] Amendment
analysis has been the question whether a person has a
“constitutionally protected reasonable expectation of privacy.” . . .
The Amendment does not protect the merely subjective expectation
of privacy, but only “those expectation[s] that society is prepared
to recognize as ‘reasonable’.”

Consequently, “[w]e must examine the nature of the particular documents sought to be protected
in order to determine whether there is a legitimate ‘expectation of privacy’ concerning their
contents.” United States v. Miller, 425 U.S. 435, 442 (1976).

In Donovan, the Supreme Court made clear that the mining industry is pervasively
regulated and that warrantless nonconsensual mine inspections conducted by the Secretary under
the Mine Act are fully consistent with the Fourth Amendment. 452 U.S. at 605. Because of this
pervasive regulation, mine operators have an extremely low expectation of privacy with regard to
their mines and records related to mine safety and health. This lowered expectation is reinforced
by the language of section 103(h), which expressly states that “[i]n addition to such records as
are specifically required by this chapter, every operator . . . shall . . . provide such information, as
the Secretary . . . may reasonably require from time to time to enable [her] to perform [her]
functions.” Additionally, in 30 C.F.R. § 50.41, the Secretary required each operator to allow
MSHA to inspect and copy information related to accidents, injuries, or illnesses which are
“relevant and necessary” for verifying investigation reports or determining compliance with
reporting requirements. As a result of this pervasive regulation, mine operators are fully aware
that the Secretary is authorized to require access to such information without obtaining an
administrative search warrant.

Moreover, while there are limits on the government’s authority in this area, they are well
respected by MSHA’s narrowly focused, clearly explained, and limited request for information in
this case. In BHP, the Commission “recognize[d], as did the Court in Donovan, that the bounds
of the Secretary’s authority are not without limits,” but emphasized that “section 103 provides
the ‘certainty and regularity of its application’ that is a substitute for a warrant.” 21 FMSHRC at
767, quoting 452 U.S. at 603. In BHP, we relied in particular on section 103(a) as a limit to the
Secretary’s investigatory authority, and noted the Court’s statement in Donovan that “[t]he
discretion of Government officials to determine what facilities to search and what violations to
search for is . . . directly curtailed by the regulatory scheme.” Id., quoting 452 U.S. at 605. Of
course, this “regulatory scheme” includes 30 C.F.R. § 50.41. As noted earlier, supra, at 14, we
agree with the judge that this request is clearly distinguishable from the Sewell case, in that no
inspector is seeking authority to rummage through the operators’ files. 33 FMSHRC at 1318.
Accordingly, we conclude that the mine operators had no legitimate expectation of privacy with
regard to the documents in question and that the Secretary’s actions comported with the Fourth
Amendment.

We disagree with the arguments of Commissioner Duffy, our dissenting colleague, who
maintains that the Secretary’s audit violated the Fourth Amendment. Commissioner Duffy
concedes that under Donovan the mining industry is pervasively regulated so that operators have
a low expectation of privacy. Slip op. at 36. Nevertheless, citing United States v. Biswell, 406
U.S. 311 (1972), and Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), he
contends that the Secretary can conduct warrantless searches for documents related to mine
accidents, injuries, or illnesses only if those documents are “required to be generated and
maintained by the enabling statute or regulations duly promulgated pursuant to that statute.”
Slip op. at 32, 37. He further contends that the Secretary must undertake additional rulemaking
to specifically identify the documents that she is entitled to have access to in order to carry out
her functions under the Act. Id. at 41. He asserts that the term “may reasonably require from to
time to time” in section 103(h) of the Mine Act must mean to require by means of a duly
promulgated rule. Id.

First, our colleague’s reliance on Biswell and Colonnade is misplaced. These cases
involved statutes that explicitly limited the government’s inspection authority to records
“required to be kept.” See Biswell, 406 U.S. 311; Colonnade Catering, 397 U.S. at 73 n.1. The
Court did not address the question of the government’s inspection authority regarding records not
legally required to be retained, and thus the cases do not stand for the proposition that a
warrantless right of access is necessarily limited to records specifically required to be maintained
by statute or regulation. Because the Mine Act grants the Secretary authority to inspect “records”
and “information,” “[i]n addition to such records as are specifically required” to be kept, see 30
U.S.C. § 813(h) (emphasis added), Biswell and Colonnade are inapposite, as the statutory basis
for the search here is broader than in the two cases decided by the Court.

Furthermore, because reliance on these cases forms the foundation of his theory that a
statutory or regulatory requirement that records be maintained is the only justification for an
exception to the general warrant requirement, Commissioner Duffy’s argument that additional
rulemaking is necessary in order to cure this alleged constitutional problem fails as well.

Biswell and Colonnade do not support his contention that the language in section 103(h) that an
operator must provide such information as the Secretary “may reasonably require from time to
time” means information the Secretary “requires by means of a rule,” slip op. at 41. This is
because, as we previously noted, in both Biswell and Colonnade, the information the government
wished to acquire was already required to be maintained by statute, and the Court never explicitly
stated that this was a prerequisite to the inspections at issue. In any event, courts generally have
held that use of the phrase “from time to time” refers to discretionary actions of an agency,
American Canoe Ass’n v. EPA, 30 F.Supp.2d 908, 923 (E.D.Va. 1998), citing Natural Res.
Defense Council v. Thomas, 885 F.2d 1067, 1075 (2d Cir. 1989); Natural Res. Defense Council
v. EPA, 770 F.Supp. 1093, 1105 (E.D.Va. 1991), aff’d, 16 F.3d 1395 (4th Cir. 1993), which
would therefore not require a rule.

Because the 1977 rulemaking directly addressed the Secretary’s authority and need to
gain access to certain kinds of information not required to be generated or maintained under the
statute, mine operators were clearly placed on notice that the Secretary could seek backup
documents and other information “necessary and relevant” to verification and compliance
determinations. Operators had no reasonable expectation of privacy with regard to that
information. No additional rulemaking was necessary, and the Secretary’s audit did not violate
the Fourth Amendment.

The dissent’s reliance on Sixth Circuit case law in this area, slip op. at 38-39, is
misplaced. Marshall v. Nolichuckey Sand, 606 F.2d 693 (6th Cir. 1979), was, as our colleague
acknowledges, decided prior to the Supreme Court’s ruling in Donovan.

Consequently, that
court’s approval of warrantless inspections limited only to the “active workings” of coal mines,
and its assertion that a warrant is required for the inspection of offices and other areas, was
superceded by Donovan, which upheld warrantless inspections by MSHA with no such
qualification. 452 U.S. at 606. The Donovan court relied on the broad authority provided by
section 103(a) which requires “inspections of each underground coal or other mine in its entirety
at least four times a year, and of each surface coal or other mine in its entirety at least two times a
year.” 30 U.S.C. § 813(a) (emphasis added.).

The Nolichuckey Sand court’s assertion was based on United States v. Consolidation
Coal Co., 560 F.2d 214, 217 (6th Cir. 1977), vacated and remanded, 436 U.S. 942 (1978),
judgment reinstated, 579 F.2d 1011 (1978) (“Consol”). Consol in turn relied on a district court
decision, Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp 45 (S.D. Ohio 1973).
However, Youghiogheny never mentioned “active workings,” in upholding warrantless searches
of coal mines. Id. at 52.

In Judge Wiseman’s concurring opinion in United States v. Blue
Diamond Coal Co., 667 F.2d 510, 521 (6th Cir. 1981), also relied on by our colleague, the court
determined that suppression of certain records seized from the mine office was not appropriate,
and noted that: “in light of Donovan and today’s decision, it is apparent that certain dicta in
[Consol] no longer reflect[s] accurately the current state of the law.” Morever, even the Consol
court acknowledged that the mine offices involved were “part of coal mine premises within the
meaning of the Act,” and that it was “reasonable to assume that mine operators have a reduced
expectation of privacy in their business offices than less highly scrutinized enterprises.” 560
F.2d at 219, 220.

We also conclude that the miners do not have a reasonable expectation of privacy with
regard to the documents sought by the Secretary in these audits. The Supreme Court in Miller
held that a bank depositor had no protected Fourth Amendment interest in his bank records, such
as checks and deposit slips, that were business records of the banks and not the depositor’s
private papers. The Court’s decision stated unequivocally that:

This Court has held repeatedly that the Fourth Amendment does
not prohibit the obtaining of information revealed to a third party
and conveyed by him to Government authorities, even if the
information is revealed on the assumption that it will be used only
for a limited purpose and the confidence placed in the third party
will not be betrayed.

425 U.S. at 443. As in Miller, the records in this case are maintained by third parties (the mine
operators) for their own business purposes and among their own business records.

Miller emphasized that courts generally recognize that the Fourth Amendment does not
prohibit the collection of information revealed to a third party and conveyed by him or her to
government authorities. Id. Generally, following Miller, an individual only has a Fourth
Amendment expectation of privacy in documents that he or she owns or possesses. This includes
medical records demanded by the government. See, e.g., Young v. Murphy, 90 F.3d 1225, 1236
(7th Cir. 1996) (holding that patient failed to establish a Fourth Amendment claim to
investigators’ examination of his nursing home records); Webb v. Goldstein, 117 F. Supp. 2d.
289, 295-96 (E.D.N.Y. 2000) (holding that parolee had no privacy interest in his prison medical
records); Romano v. City of New York, 2009 WL 1941912 (E.D.N.Y. (2009)) (holding that
plaintiff had no protected Fourth Amendment interest in his medical records allegedly seized at
the office of his medical practitioner, as he could state no interest in the property seized at
premises not under his control).

Moreover, as the government agency responsible for protecting the health and safety of
the nation’s miners, MSHA’s request for the miners’ medical records can hardly be described as
an “inquiry that unnecessarily touch[es] upon intimate areas of [a miner’s] personal affairs,” as
asserted by the dissent, slip op. at 44, citing Miller, 425 U.S. at 444 n.6 (emphasis added). See
also Westinghouse, 638 F.2d at 580. This is particularly so when the records, limited to work-related injuries and illnesses, provide an accurate picture of the health and safety conditions the
miners are subject to while in the mines. Accordingly, we conclude that the Secretary’s audit
request does not violate the operators’ or intervenors’ Fourth Amendment rights.

3.         Fifth Amendment arguments

Intervenors further assert that the Secretary’s failure to fully consider the privacy issues
when promulgating 30 C.F.R. § 50.41 was arbitrary and capricious and violates their Fifth
Amendment right to due process.

The Due Process Clause of the Fifth Amendment guarantees that no person shall “be
deprived of life, liberty, or property, without due process of law.” The fundamental requirement
of procedural due process is the opportunity to be heard “at a meaningful time and in a
meaningful manner” appropriate to the nature of the case. Capital Cement Corp., 21 FMSHRC
883, 887 (1999) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)); Boddie v.
Connecticut, 401 U.S. 371, 378 (1971); Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The timing and manner of the hearing depend
upon the “appropriate accommodation of the competing interests involved.” Id. (quoting Logan
v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (citations omitted)).

We find the Intervenors’ due process argument unavailing.

The general public,
including miners, had the opportunity to challenge the promulgation of section 50.41 during the
notice-and-comment proceeding over 30 years ago. The parties also retain the right, as they have
done here, to challenge the Secretary’s application of the rule in each instance where it is applied.
All parties involved in this proceeding, including Intervenors, have had a meaningful opportunity
to protect their rights and interests by fully presenting their case before the Commission through
oral argument and briefs. We find no violation of the right to due process protected by the Fifth
Amendment.

D.Whether other federal statutes or state laws bar disclosure of the records and
information.

Petitioners state that the Secretary’s authority to require them to produce the disputed
records is further limited by other federal and state statutes, including the Americans with
Disabilities Act (“ADA”), the Family Medical Leave Act (“FMLA”), the Genetic Information
Non-Discrimination Act of 2008 (“GINA”), the Illinois AIDS Confidentiality Act, and by
Illinois’ and Indiana’s recognition of a common law tort for the invasion of the right to privacy.

We conclude that none of the aforementioned federal statutes impedes the Secretary’s
authority to request the disputed information. Specifically, under the ADA, any information
obtained about an employee’s medical condition, as a result of an employer’s requirement that an
employee submit to a medical examination or as a result of the employer conducting voluntary
examinations, must be treated as a confidential medical record and collected and maintained on
separate forms and in separate medical files. 42 U.S.C. § 12112(d)(3)(B), (4)(C); 29 C.F.R.
§§ 1630.14(b)(1), (c)(1), (d)(1). Although there are exceptions to the confidentiality
requirement, Petitioners correctly maintain that MSHA does not fall within any of the three
enumerated exceptions found at 29 C.F.R. § 1630.14. However, section 1630.15(e) provides that
“[i]t may be a defense to a charge of discrimination under this part that a challenged action is
required or necessitated by another Federal law or regulation . . . . ” 29 C.F.R. § 1630.15(e).
Thus, because the disputed information is required to be released to the Secretary pursuant to
section 103(h) of the Mine Act and 30 C.F.R. § 50.41, and is necessary to ensure compliance
with the Act, we do not see the ADA as a roadblock. See also EEOC Interpretive Guidance on
Title I of the Americans with Disabilities Act, 29 C.F.R. Pt. 1630 App. 1630.15(e) (2000);
accord Bay v. Cassens Transport Co., 212 F.3d 969, 974 (7th Cir. 2000) (“The ADA does not
override health and safety requirements established under other Federal laws”) (citation omitted).

Similarly, the FMLA, 29 U.S.C. § 2601 et seq., requires that all medical information
obtained by employers pursuant to its provisions must be maintained in strict accordance with the
ADA’s Title I confidentiality provisions found at 29 C.F.R. § 1630.14(b). See 29 C.F.R.
§ 825.500(g). However, disclosure is required to provide relevant information upon request by
government officials investigating compliance with the FMLA or other pertinent law.
See 29 C.F.R. § 825.500(g)(3). Because MSHA inspectors are government officials investigating
compliance with “[an]other pertinent law,” i.e., the Mine Act, disclosure of the disputed records
does not violate the FMLA. 

Subject to some exceptions, GINA requires that employers treat and maintain an
individual’s genetic information as a confidential medical record under section 102(d)(3)(B) of
the ADA. 42 U.S.C. § 2000ff-5(a). Although the exceptions outlined in section § 2000ff-5(b) of
GINA do not apply to MSHA, covered entities under the Health Insurance Portability and
Accountability Act (“HIPAA”) that already possess a right of access pursuant to 45 C.F.R.
§ 164.512(b)(1)(i), are specifically exempted by GINA’s disclosure prohibition. 42 U.S.C.
§ 2000ff-5(c). Because MSHA is a covered entity under HIPAA, it is permitted access to
miners’ medical information under GINA. See 45 C.F.R. § 164.512(b)(1)(i). Furthermore,
section 1635.11(a)(5) of GINA’s regulations state that “[t]his part does not–[l]imit the statutory
or regulatory authority of . . . the Mine Safety and Health Administration to promulgate or
enforce workplace safety and health laws and regulations.” 29 C.F.R. § 1635.11(a)(5).

In addition, state law is insufficient to prevent operator compliance with the Secretary’s
audit initiative. Section 506 of the Mine Act provides that states may have concurrent
jurisdiction with MSHA and that state law is not superseded by the Act “except insofar as such
State law is in conflict with this chapter or with any order issued or any mandatory health or
safety standard.” 30 U.S.C. § 955(a).

IV.

Conclusion

For the reasons set forth herein, we conclude that the judge correctly ruled that Petitioners
violated 30 C.F.R. § 50.41 by refusing to permit the Secretary access to the related payroll and
medical information requested as part of the Part 50 audit. Accordingly, the citations and orders
are affirmed.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Duffy, dissenting:

These proceedings raise in stark relief and taut contention a number of fundamentally
worthy interests and values. For example, it is the Secretary’s responsibility to see to it that all
reportable accidents, injuries, and illnesses are correctly recorded and those records maintained
and made available to her so that she can evaluate the effectiveness of her enforcement program
and determine whether current safety and health standards are adequate to protect miners.
Likewise, operators have a right to know with certainty what is required of them in meeting their
obligations under the Mine Act and in meeting their fiduciary duties to their employees with
respect to the collection, maintenance, and release of sensitive personal information. Lastly, and
most importantly, miners have a right to confidentiality and security with respect to their intimate
health information. Each of these interests needs to be taken into account in arriving at a balance
that fosters the purposes of the Mine Act while accommodating fundamental rights of privacy
and due process.

The Secretary’s actions in these cases fall woefully short of achieving that balance, and
for that reason I would reverse the judge’s decisions and vacate the citations and orders at issue.
I reach this conclusion with respect to broader considerations of law and public policy arising
from MSHA’s auditing initiative which precipitated these enforcement actions, and with respect
to the deficiencies inherent in the issuance of the particular citations and orders before us. In
short, for the reasons articulated below, the Secretary’s actions are wrong in both a general and
particular sense.

As for the general deficiencies of the auditing initiative, it must be rejected as illegitimate
because it cannot be reconciled with fundamental and manifest constitutional principles relating
to privacy and due process. Supreme Court jurisprudence respecting the scope and legitimacy of
warrantless access to private records demands that such records must first be required to be
generated and maintained pursuant to enabling legislation or implementing regulations. Neither
of those predicates obtains in these circumstances as the Secretary readily admits. Consequently,
the Secretary is not authorized to demand records that have not been required to be maintained,
either by the Mine Act or the regulations set forth in 30 C.F.R. Part 50.

Even if I were to grant the Secretary the benefit of the doubt as to the legitimacy of her
auditing initiative, I would nevertheless reverse the judge and vacate all of the citations and
orders issued as being void ab initio. The enforcement actions here are invalid because the
Secretary issued the citations and orders in the midst of muddled and contradictory signals as to
what records were required to be surrendered, and, more fatally, without first having adopted a
responsible and constitutionally valid protocol for safeguarding the privacy rights of the miners at
these particular mines.

Indeed, such a protocol was not finalized and made public until the very
eve of the hearings in these cases and was still undergoing public explanation and clarification
during and after oral argument before this Commission. Slip op. at 22 n.17. Therefore,
regardless of the merits of the Secretary’s newly derived policy asserting her right of access to
records not required to be generated and maintained by the Act or the regulations, that policy was
incomplete, confusing, and inherently deficient when the demands for records were made and the
enforcement actions were taken at these particular mines.

Since I conclude that the enforcement actions in these cases must be vacated on the
grounds that the auditing policy and the means by which it was specifically carried out against
these operators were both constitutionally deficient, it is necessary to set forth the background
necessary to those conclusions. I stress at the outset that the constitutional infirmities I find with
respect to the auditing initiative affect both the operators and the miners who have taken issue
with the program in these proceedings. The miners have a personal and proprietary interest in
the medical records to which the Secretary seeks access that matches if not exceeds that of the
operators. Therefore, the following discussion encompasses the constitutional implications of
the auditing initiative for both the operators and the miners.

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describe the place to be searched, and the person or things to be
seized.

U.S. Const. amend. IV.

Fourth Amendment protections against warrantless searches have been extended beyond
private residences to commercial premises. New York v. Burger, 482 U.S. 691, 699-700 (1987).
For example, warrantless inspections conducted by the Occupational Safety and Health
Administration (“OSHA”) have been held unreasonable in the absence of the employer’s
consent. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313-15 (1978). The protection against
unreasonable searches has been extended to the inspection of records whereby, as a general
proposition, such inspections must be in accordance with a formal subpoena, which itself is
subject to judicial review as to its reasonableness before sanctions for noncompliance can be
imposed. See v. Seattle, 387 U.S. 541 (1967):

Official entry upon commercial property is a technique commonly
adopted by administrative agencies at all levels of government to
enforce a variety of regulatory laws; thus, entry may permit
inspection of the structure in which a business is housed, as in this
case, or inspection of business products, or a perusal of financial
books and records . . . .

. . . . The agency has the right to conduct all reasonable
inspections of such documents which are contemplated by statute,
but it must delimit the confines of a search by designating the
needed documents in a formal subpoena. In addition, while the
demand to inspect may be issued by the agency, in the form of an
administrative subpoena, it may not be made and enforced by the
inspector in the field, and the subpoenaed party may obtain judicial
review of the reasonableness of the demand prior to suffering
penalties for refusing to comply.

Id. at 543-45 (emphasis added).

As a general proposition, then, “searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment –
subject only to a few specifically established and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967). Accordingly, notwithstanding the unequivocal demands placed
on the policing power by the Fourth Amendment, the Supreme Court has carved out careful
exceptions when it comes to particular industries. Thus, the Court has allowed warrantless
administrative inspections of certain establishments on the grounds that they have been
pervasively regulated to the extent that their expectations of privacy have been reduced and that
the nature of their activities has persuaded Congress that requiring a warrant would frustrate a
substantial governmental purpose, such as frequent and unannounced inspections. See, e.g.,
United States v. Biswell, 406 U.S. 311 (1972) (firearms dealers); Colonnade Catering Corp. v.
United States, 397 U.S. 72 (1970) (alcoholic beverage industry).

However, lest we lose sight of the principles undergirding the Supreme Court’s limited
departure from its general intolerance for nonconsensual, warrantless entry onto commercial
premises, the Court in both Biswell and Colonnade was careful to point out that access to records
during a warrantless physical inspection of the premises is limited to those records specifically
required to be maintained by statute and regulation. In Biswell, the statute at issue

authorizes official entry during business hours into “the premises
(including places of storage) of any firearms or ammunition . . .
dealer . . . for the purpose of inspecting or examining (1) any
records or documents required to be kept . . . and (2) any firearms
or ammunition kept or stored by such . . . dealer . . . at such
premises.”

406 U. S. at 311-12 (quoting 18 U.S.C. § 923(g)) (emphasis added) (alteration in original). In
Colonnade, the authorizing statute provided:

The Secretary or his delegate may enter during business hours the
premises . . . of any dealer for the purpose of inspecting or
examining any records or other documents required to be kept . . .
under this chapter or regulations issued pursuant thereto . . .

397 U.S. at 73 n.1 (quoting 26 U.S.C. § 5146(b)) (emphasis added).

These caveats were necessary to reconcile those rare instances where warrantless physical
inspections of selected commercial premises would be tolerable notwithstanding the restrictive
principles adopted for the vast majority of enterprises in See v. Seattle, supra. Thus, the Supreme
Court has established that in order to justify an exception to the general prohibition against
warrantless access to records and the requirement for a subpoena to compel the surrender of such
records, there must first be a statutory or regulatory requirement that the records be generated and
maintained. That law or regulation, by its specificity as to which documents must be generated
and maintained, serves as a necessary and acceptable substitute for the specificity of a subpoena.

In contradistinction to the experience of general industry under the OSHA statute, the
Mine Act has been interpreted by the Supreme Court to permit warrantless nonconsensual
searches of mines, both coal and noncoal, and both surface and underground. Donovan v.
Dewey, 452 U.S. 594 (1981). The Court distinguished circumstances under the Mine Act from
those under the OSHA statute by finding a substantial federal interest that would be significantly
frustrated by a warrant requirement. Id. at 602-03. The Court further held that a warrant is not
required for MSHA inspections because the mining industry’s long history of pervasive
regulation has lowered the expectation of privacy among mine operators. Id. at 603-04.

In distinguishing the relative expectations of privacy as between mine operators and those
employers governed by the OSHA statute, the Court determined that the Mine Act “in terms of
the certainty and regularity” of its inspection program (four yearly inspections of underground
mines and two yearly inspections of surface mines), as opposed to OSHA’s random and
unpredictable inspection program, “provides a constitutionally adequate substitute for a warrant”
so that the mine operator “cannot help but be aware that he ‘will be subject to effective
inspection.’” Id. at 603 (quoting Biswell, 406 U.S. at 316). The Court went on to explain,
however, that such “awareness” was owing to the specificity of the regulatory program, including
its regulatory requirements:

[T]he standards with which a mine operator is required to comply
are all specifically set forth in the Act or in Title 30 of the Code of
federal regulations. Indeed, the Act requires that the Secretary
inform mine operators of all standards proposed pursuant to the
Act. Thus, rather than leaving the frequency and purpose of
inspections to the unchecked discretion of Government officers,
the Act establishes a predictable and guided federal regulatory
presence. Like the gun dealer in Biswell, the operator of a mine “is
not left to wonder about the purposes of the inspector or the limits
of his task.”

Id. at 604 (quoting Biswell, 406 U.S. at 316) (citation omitted).

The Supreme Court’s decision in Donovan as it applies to the physical inspection of a
minesite resonates strongly with the legislative history of the Mine Act. In explaining the
breadth of an MSHA inspector’s right of entry “to, upon, or through” any mine, the Senate
Committee Report states:

Section [103(a)] authorizes the Secretary . . . to enter upon,
or through any mine for the purpose of making any inspection or
investigation under this Act. This is intended to be an absolute
right of entry without need to obtain a warrant. . . . . Safety
conditions in the mining industry have been pervasively regulated
by Federal and State law. . . . . The Committee notes that despite
the progress made in improving the working conditions of the
nation’s miners . . . mining continues to be one of the most
hazardous occupations. Indeed, in view of the notorious ease with
which many safety and health hazards may be concealed if advance
warning of inspection is obtained, a warrant requirement would
seriously undercut the Act’s objectives.

S. Rep. No. 95-181, at 27 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 615 (1978).

With respect, therefore, to the right of entry for purposes of conducting a physical
inspection of a mine and its facilities, Congress and the Supreme Court have most decidedly
circumscribed the Fourth Amendment rights of mine operators on the grounds of longstanding
and pervasive federal oversight of mining and the need to exercise an element of surprise to
assure that hazards are discovered and corrected. That unbridled right of access does not,
however, extend to any and all records in a mine operator’s possession.

Donovan did not specifically address access to records, but since it is a direct outgrowth
of the Supreme Court’s decisions in Biswell and Colonnade, it must be assumed that, insofar as
access to records is concerned, the restrictions placed upon those agencies charged with
enforcing laws relating to firearms (Biswell) and liquor (Colonnade) must also apply here to
MSHA: the access is limited to those records that are required to be generated and maintained by
the enabling statute or regulations duly promulgated pursuant to that statute. It should also be
stressed that the urgency that may attend a physical inspection of a mine in search of safety and
health hazards in no way attends the audits sought to be conducted here, particularly since the
Secretary admits that she has no reason to believe that these operators have misreported or
doctored their accident, injury, and illness experience as reflected in those records actually
required to be maintained under the Act and Part 50. Peabody Tr. 25. Therefore, just as Biswell
and Colonnade restricted a warrantless right of access only to records required to be maintained
by statute or regulation, so also their progeny, Donovan, must be construed to limit MSHA’s
access to records required to be maintained by the Act or Title 30.

Unlike my colleagues, I view Donovan as inextricably linked to Biswell and Colonnade,
such that their principles regarding access to records apply to the Secretary in her enforcement of
the Mine Act. Biswell and Colonnade provide the basis for the Court’s rationale for ultimately
distinguishing the Mine Act from the OSHA statute and for reaching different conclusions on
warrantless access at minesites versus general industry work sites. My colleagues argue that
section 103(h) of the Mine Act is broader than the record-keeping statutes at issue in Colonnade
and Biswell. Slip op. at 25. However, that, by itself, does not answer the question of whether the
Secretary’s designation of miners’ medical records as subject to her section 103(h) authority
permits the Secretary to demand the production of those records without a warrant. In Donovan,
the Supreme Court explained that a warrant was not required in Biswell because the authorizing
legislation “provided a sufficiently comprehensive and predictable inspection scheme.”
Donovan, 452 U.S. at 600 (emphasis added) (citing Biswell, 406 U.S. at 316). With regard to the
element of “predictability,” the Court in Biswell allowed for warrantless inspections of gun
dealerships because, due to the specificity of the statute at issue, “[t]he dealer is not left to
wonder about the purposes of the inspector or the limits of his task.” 406 U.S. at 316 (emphasis
added).

In contrast, as the Court explained in Donovan, in Barlow’s it invalidated OSHA’s
warrantless inspections, despite their being authorized by the OSHA statute, because the OSHA
statute “does not provide any standards to guide inspectors either in their selection of
establishments to be searched or in the exercise of their authority to search.” Donovan, 452 U.S.
at 601 (emphasis added). The Court concluded that a statute that “simply provides that such
searches must be performed ‘at reasonable times, and within reasonable limits and in a
reasonable manner’” did not comport with the principles embodied in the Fourth Amendment.
Id. As the Court highlighted in Barlow’s and other cases, a warrant may be necessary to protect
against the “unbridled discretion [of] executive and administrative officers” so as to assure that
“reasonable legislative or administrative standards for conducting an . . . . inspection are satisfied
with respect to a particular [establishment].” Barlow’s, 436 U.S. at 320-23; Camara v.
Municipal Court of San Francisco, 387 U.S. 523, 538 (1967).

Two Sixth Circuit decisions, one issued prior to Donovan and one issued after, provide
compelling authority for concluding that the inspection regime under the Mine Act necessarily
falls within the rubric of Biswell and Colonnade and for the proposition that only records
required to be maintained by the Mine Act or by duly promulgated regulations can be made
subject to warrantless inspection. In Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir.
1979), a decision cited favorably by the Supreme Court in Donovan, the Sixth Circuit explained
why the decision in Barlow’s did not preclude warrantless searches of mines: “On the contrary,
Justice White made it clear that requiring a warrant for OSHA inspection does not doom
warrantless search provisions in other regulatory statutes. ‘The reasonableness of a warrantless
search, however, will depend upon the specific enforcement needs and privacy guarantees of
each statute.’” Id. at 696 (quoting Barlow’s, 436 U.S at 321). Among the privacy guarantees
the Sixth Circuit identified in the Mine Act, was the fact that the Mine Act “permits warrantless
inspections only of the ‘active workings’ of coal mines. A warrant is required for the inspection
of offices and other areas where the operator has a general expectation of privacy.” Id. (citing
United States v. Consol. Coal Co., 560 F.2d 214, 217 (6th Cir. 1977), vacated and remanded,
436 U.S. 942, judgment reinstated, 579 F.2d 1011 (1978)).

In the post-Donovan case, United States v. Blue Diamond Coal Co., 667 F.2d 510 (6th
Cir. 1982), the mine operator sought to suppress in a criminal proceeding documents that had
been seized by the government during an investigation of the Scotia Coal Mine disaster. The
documents in question were mine examination records that were required to be maintained by
regulation and were located on a table in the mine office where mine inspectors had always had
ready access to them. Id. The Sixth Circuit denied the request to suppress the evidence on the
grounds that the inspector entered the mine office during reasonable hours and went only to areas
where the records were maintained for purposes of government inspection. Id.

In a concurring opinion, Judge Wiseman (District Judge, sitting by designation) more
thoroughly distinguished the case at hand from the Court’s decision in Consolidation Coal:

The agents in Consolidation Coal sought “evidentiary indicia of
compliance” with section 202 of the Act, 30 U.S.C. § 842. Section
842(a) required the transmittal of dust samples to the monitoring
agency, but it did not require operators to make records of any sort
available for inspection on the premises. This necessarily means
that the items seized in Consolidation Coal were not records
maintained in compliance with the Act, and thus the defendant
retained a significant expectation of privacy as to their contents.
On the other hand, all the books seized in the instant case were
maintained for public inspection, as required by statute. 30 U.S.C.
§ 863(d)(1), (f), (g), (w). Consequently, defendants in the instant
case had no expectation of privacy in regard to the contents of the
records seized. . . .

Although Consolidation Coal Co. was engaged in a closely
regulated business, the searches in that case required warrants
because the governmental action impinged upon privacy interests
that the company still retained, despite its pervasive regulation.
Consolidation Coal is fully consistent with Marshall v. Barlow’s,
Inc., as this Court found in its response to the Supreme Court’s
remand for reconsideration in light of that case. It is also
consistent with the Supreme Court’s Donovan decision. The
entries in the instant case required no warrant, however, because
defendants had no general expectation of privacy in either the
premises entered or the records sought.Warrants are necessary to check the “unbridled discretion”
of government agents as to when, where, and whom to search.
That discretion was sufficiently limited in this case, because the
agents were only authorized to search for records maintained for
MESA

inspection in areas freely accessible to MESA agents and
other members of the public.

Id. at 522 (citations and footnote omitted).

Here, the Secretary’s rejection of a rulemaking proceeding in favor of an ad hoc approach
to obtaining miner medical records removes her chosen regulatory scheme from the ambit of
Donovan to that of Barlow’s. Consequently, a warrant is required before she can make the
individual demands for miner medical records that she seeks, or, more efficiently, she must set
forth requirements for the generation, maintenance, and release of such records through notice
and comment rulemaking.

Although section 103(h) of the Mine Act does not require that the records being sought in
these cases be maintained by mine operators (a fact the Secretary clearly acknowledges), it does
authorize the Secretary to impose such a requirement:

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.

30 U.S.C. § 813(h) (emphasis added).

Notwithstanding the Secretary’s arguments to the contrary (S. Br. at 22-23), 30 C.F.R.
§ 50.41 does not serve to implement the authority of section 103(h) of the Act in a manner that
passes constitutional muster, given the dictates of See, Biswell, Colonnade, and Donovan, supra.
To purport that Section 50.41 requires mine operators to provide private medical records to the
Secretary, without first requiring that those records be generated and maintained, is inimical to
the principles governing access to records, even at those premises that the Supreme Court has
held to be subject to warrantless physical inspections. Furthermore, in light of the fundamental
doctrine that statutes and regulations must be interpreted so as to avoid a conflict with the
Constitution, it would be impermissible to find that 30 C.F.R. § 50.41 by its terms can eliminate
the predicate requirement that records sought by the Secretary must first be required to be
generated and maintained by mine operators pursuant to a specific provision of the Mine Act or
the regulations. See, e.g., Chamber of Commerce v. Federal Election Commission, 69 F.3d 600,
604-05 (D.C. Cir. 1995), where the court denied that Chevron deference was warranted when the
FEC’s definition of a key term in the enabling legislation was possibly violative of the First
Amendment: “We are obliged to construe the statute to avoid constitutional difficulties if such a
construction is not plainly contrary to the intent of Congress.”

Taking Biswell and Colonnade at their clear prescriptive force, the Secretary may not as a
constitutional matter, seek to implement the authority of section 103(h) by fiat. She must do so
by means of notice-and-comment rulemaking— the only legitimate way of assuring that a proper
rationale has been adopted that justifies the exception to the rule prohibiting warrantless access to
records that are inherently private and sensitive. Thus, the term “may reasonably require from
time to time” has to mean “require” by means of a duly promulgated rule, not by a demand by the
inspector in the field. It cannot be read to legitimize demands for the release of records that can
change from one inspection to the next, one mine to the next, or one MSHA district to the next.
Indeed the arbitrariness of the auditing initiative is fully demonstrated by the history of these
particular cases.

On October 19, 2010, when the Secretary first notified the Peabody Petitioners of her
need for records beyond those required to be generated and maintained under the Act and under
Part 50, the request, broad and ill-defined, included a demand for the surrender of:

Medical records in your possession for all persons employed for
the period of July 1, 2009 through June 30, 2010, as listed below:

Worker compensation filings, FMLA releases and
records, sick leave records, tests including drug
tests, studies, medical reports, medical histories,
treatment notes, fact sheets, transfer records, EMT
or ER notes, ambulance reports, explanation of
benefits (EOB), UB 92s, HICFs, nursing notes,
chest x-rays.

Peabody Hearing, Ex. C-A.

The request was so broad as to include all medical records whether or not they were
related to accidents, injuries, and illnesses that arose from events or conditions at the mine.

Thereafter, on October 28, 2010, in response to the operator’s objection to the breadth of the first
request, the Secretary revised her request and demanded:

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.

Id., Ex. C-D.

While the revised request is somewhat more focused than the first request, it is still
subject to broad interpretation, particularly with regard to the phrase “or may have resulted from
work at the mine.” There are no criteria for determining whether or not an illness or condition
such as hearing loss, dermatitis, or back pain should be attributed to activities or conditions at the
minesite, or rather to activities or conditions away from the minesite. Likewise, the request,
insofar as it refers to “all individuals working at your mine,” rather than to “all individuals
employed by you,” would seem to hold the operator accountable for the medical records of
employees of independent contractors who have no employment relationship with the operator.
Moreover, since the request seems to have originated with those MSHA employees charged with
conducting the audits at issue, there is no assurance that future requests won’t gravitate toward
the open-ended and amorphous form of the original request quoted above.

The Secretary attempts to assure the Commission that it can trust that her requests will be
reasonable, but also asserts in the preamble to Part 50, 42 Fed. Reg. 65535 (Dec. 30, 1977), and
in her arguments throughout this litigation, that only she can determine the relevance of the
information she seeks. Moreover, while she pays lip service to the operators’ and the miners’
rights to judicial review of her demands for warrantless access to documents not required to be
maintained by the Mine Act or Part 50, I find that to be undermined by her concomitant argument
that she is owed great deference on the matters of reasonableness and relevance. See S. Br. at 15.
Under such circumstances, judicial review becomes something of an empty exercise with a
predetermined outcome. 

Moreover, it has not been established with the level of assurance that matters of
confidentiality require that the Secretary has taken all steps to ensure that the inherent privacy
rights of miners have been protected and that she has adequately responded to their concerns. In
fits and starts, the MSHA auditing initiative has been massaged as this litigation has proceeded in
an attempt to address – on the fly – the miners’ privacy rights. However, when constitutional
issues are implicated in a regulatory scheme, ad hoc, seat-of-the-pants adjustments and assertions
of deference owed to the regulator’s good intentions are not enough.

The fact remains that at the time these citations and orders were issued, the Secretary had
no policy in place that specifically and comprehensively addressed the collection of the miners’
personal medical information, the limitations on access by MSHA personnel and others to that
information, the means by which the information would be stored, the length of time the
information would be retained by MSHA, the uses to which the information would be put, the
sanctions that would be imposed for the unauthorized disclosure of the information, and the
procedures by which miners would be notified as to the release of the information and their
opportunity to have input into how the information would be utilized.

The Secretary should not be allowed to attempt to remedy these glaring deficiencies post
hoc simply for the sake of administrative convenience or to salvage the citations and orders at
issue. When fundamental constitutional rights are placed in potential jeopardy by the Secretary’s
ill-defined and shape-shifting initiative, it is not legally permissible to allow her a procedural
“mulligan.” A protocol for protecting the miners’ interests in their personal and confidential
records is required and, by the dictates of the Supreme Court’s pronouncements outlined above,
that protocol must take the form of a regulation promulgated through notice-and-comment
rulemaking. The Secretary’s failure to adopt that course before resorting to the enforcement
actions taken here provides sufficient grounds for vacating these particular citations and orders as
void ab initio, notwithstanding the broader illegitimacy of the auditing initiative.

The miners cite the case of United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010),
for the proposition that a mere administrative demand, however well intentioned, for confidential
records held by a third party that intrudes upon the reasonable expectations of privacy of
individuals may well impinge upon the Fourth Amendment rights of those individuals. Interv.
Br. at 13. I find that argument compelling in the circumstances presented here. Warshak dealt
with personal and business e-mail communications; here we are dealing with much more
intimate information, the unauthorized disclosure of which could be embarrassing, even
devastating.

My colleagues cite United States v. Miller, 425 U.S. 435 (1976), as grounds for rejecting
the miners’ assertion of a right to privacy regarding their medical records. Slip op. at 27. That
reliance is unavailing. Miller involved business documents such as cancelled checks and deposit
slips that were voluntarily generated and provided to a bank by an individual under criminal
investigation. Id. at 442 (“All of the documents obtained, including financial statements and
deposit slips, contain only information voluntarily conveyed to the banks and exposed to their
employees in the ordinary course of business.”). Furthermore, the Court in Miller set forth a
crucial caveat that the majority ignores: “We are not confronted with a situation in which the
Government, ‘through unreviewed executive discretion,’ has made a wide-ranging inquiry that
unnecessarily ‘touch[es] upon intimate areas of an individual’s personal affairs.’” Id. at 444 n.6
(quoting California Bankers Ass’n v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., concurring).
That caveat provided the rationale by which the court in Warshak, supra, distinguished its own
holding from Miller:

But Miller is distinguishable. First, Miller involved simple
business records, as opposed to the potentially unlimited variety of
“confidential communications” at issue here. Second, the bank
depositor in Miller conveyed information to the bank so that thebank could put the information to use “in the ordinary course of
business.”

631 F.3d at 288. The personal medical records of these miners most certainly qualify as
“intimate areas of an individual’s personal affairs” – even more so than the e-mails at issue in
Warshak – and as such are fully deserving of Fourth Amendment protection. Moreover, the
miners do not voluntarily elect to invest the operators with the authority to keep the medical
records. They are automatically created as a condition of employment and for the attendant
purpose of securing insurance coverage.

There is no question that mine operators must make available to MSHA inspectors those
records specifically required to be generated and maintained by the Act or by duly promulgated
regulations set forth in Title 30 of the Code of Federal Regulations.

For example, in 1987, the
Associate Solicitor of Labor for Mine Safety and Health, Edward Clair, issued an opinion letter
stating, “[I]t is our position that MSHA has a right of access to any information required to be
maintained by the Mine Act or the implementing regulations in Part 50,” basing his opinion on
the “key factor” that authorized access depends upon “whether the information is required to be
maintained under the Mine Act or implementing regulations.” Peabody Hearing, Ex. C-I.

Likewise, this Commission and the courts have upheld MSHA’s right to inspect reports
required to be maintained by the Mine Act. Peabody Coal Co. 6 FMSHRC 183 (Feb. 1984)
(operator’s accident investigation report); Youghiogheny & Ohio Coal Co. v. Morton,
364 F. Supp. 45 (S.D. Ohio 1973) (concluding that “maps, books, and records which are
maintained for and in compliance with the Mine Safety Act” must be produced upon an
inspector’s demand).

The seminal judicial pronouncement on MSHA’s right of access to records not required
to be generated or maintained by the Act or the regulations was former Chief Administrative Law
Judge Broderick’s decision in Sewell Coal Co., 1 FMSHRC 864 (July 1979) (ALJ). In that
decision the judge held that MSHA inspectors were not authorized to inspect “records not
specifically required to be kept by law.” Id. at 871. Of fundamental importance to Judge
Broderick (and what must be of fundamental importance in these proceedings as well) was the
“cardinal rule” of statutory construction that required him to interpret the Act “so as to avoid
conflict with the Constitution.” Id.

The Secretary discounts the influence that should be accorded Sewell by arguing that it is
an unreviewed decision. For purposes of sound authority, if the decision is correct, and it is, it
makes no difference whether it was reviewed or not. Indeed, even while noting that Sewell was
an unreviewed decision, the Commission majority in BHP Copper, Inc., 21 FMSHRC 758 (July
1999), gave Chief Judge Broderick’s decision wide berth by taking pains to distinguish the
request for a miner’s telephone number during an accident investigation in BHP from an
inspector’s attempt to access medical records in Sewell (id. at 767 n.15,) and ultimately based its
decision on the Secretary’s duty to investigate accidents under section 103(a) of the Mine Act,
not her right of access to records under section 103(h). Id. at. 765 n.12; see also Peabody,
6 FMSHRC at 186 n.5 (“Because this case involved only a request for records specifically
required by the Act to be maintained, it does not present the situation faced in Sewell . . . . There
the inspector sought to personally review accident, injury and illness and medical and
compensation records at the mine. Those records were contained in individual personnel files
which also contained other data not required to be maintained by the Mine Act.”).

Moreover, the Secretary can point to no cases since Sewell was issued more than three
decades ago where she has taken enforcement action to compel surrender of medical records not
required to be generated and maintained by the Act or Part 50. That would seem to underscore
the continuing potence of the Chief Judge’s logic in Sewell.

The judge below and the Secretary on appeal attempt to distinguish Sewell from the
present case by noting that in Sewell the inspector sought to inspect the records himself, whereas
here the inspectors simply asked the operators to inspect the records and turn over those
documents referred to in the demand letters. 33 FMSHRC at 1318; 33 FMSHRC at 1400; S. Br.
at 19. The practical effect of both approaches is the same— the Secretary is able to secure
nonconsensual, warrantless access to private records not required to be maintained by the Mine
Act or Part 50. It is a distinction without a difference. More importantly, from the perspective of
the miners whose confidential records are at stake, it doesn’t matter whether the “rummager” is
the inspector or the mine operator’s agent acting on orders from the inspector. In the absence of
a regulatory standard governing the maintenance and release of these medical records, the
infringement on miners’ expectations of privacy is the same— particularly in circumstances
where the operator’s agent is apprised of the potential for civil penalties of up to $7500 per day
for failure to comply with the inspector’s demand. See 30 C.F.R. § 100.5(c).

In addition to the conflicts with Fourth Amendment principles, the auditing initiative is
also violative of the due process rights of operators and the miners employed at mines made
subject to the audits.

Section 103(h) of the Mine Act and Part 50 of Title 30 are of universal application to all
mines— from underground coal mines employing 500 miners to mom and pop gravel quarries
employing five miners. Operators, regardless of size, status, or location, are entitled to be
regulated by binding norms that apply equally to all operations. Moreover, those binding norms
must, by the dictates of the Mine Act and the Administrative Procedures Act, be specifically and
unambiguously set forth in regulations adopted in consequence of public notice and comment.

The demands made in these cases, ostensibly in contemplation of imposing pattern of violation
sanctions (Oral Arg. Tr. 46), lack that universality and specificity. For example, there is nothing
to prevent a demand for the prior one year’s medical records at one mine in one MSHA district
versus a demand for the prior two years’ medical records at a different mine in a different MSHA
district. The criteria and scope of the requests seem to be dependent more upon the level of
curiosity of the various auditors than by any standard, industry-wide system for records
generation and retention. There is no predictability, no notice of what can be required to be
maintained and released.

Section 103(h) refers to “every operator of a coal or other mine” as having the
responsibility to provide information to the Secretary, but the auditing initiative does not apply to
all operators. It could only be applicable across the board if all operators were required to
generate and maintain the medical and employment records being sought. By imposing the
obligation to turn over records not specifically required to be maintained by regulation, the
auditing initiative effectuates disparate treatment of those operators and the miners they employ
who by fiat are brought within the ambit of the auditing initiative. Since the Secretary is not
alleging that the operators in these proceedings were suspected of under reporting accidents,
injuries, or illnesses in those documents that are specifically required to be maintained by the
standards set forth in Part 50, the disparate treatment here cannot be justified as having been
imposed for good cause, an essential component in determining whether a warrantless search of
records is justified in general terms. See v. Seattle, supra.

Once a mine is randomly subjected to an audit of the kind contemplated in these cases, it
can be assumed that the records would have to be maintained and made available prospectively,
notwithstanding the lack of a regulatory mandate to do so, in order to avoid criminal sanctions
under section 110(f) of the Mine Act, 30 U.S.C. § 820(f), or other laws applicable to the
maintenance of records in contemplation of potential litigation. This disparate treatment as
between mines inside and outside the MSHA auditing initiative raises additional due process
concerns that have not been taken into account by the Secretary in imposing this initiative on a
random basis with the potential for vacillating requirements from mine to mine and request to
request. Furthermore, without formal standards setting forth the types of records that may be
demanded and the time periods for which the demand can be made, the auditing initiative will
continue to be an arbitrary moving target which this Commission and its judges will be
continuously asked to review for “reasonableness.”

To be sure, the Secretary has made a strong case justifying her need to inspect these types
of records in order to verify the accuracy of records that are explicitly required by the regulations,
and to determine whether accident, injury, and illness statistics at a given mine are so appreciably
high that they should be factored into a decision to impose the severe sanction of a pattern of
violation notice. However, Congress and its standard-setting surrogates, the regulatory agencies,
must tailor their statutes and regulations to the immutable patterns provided by the Constitution.
We cannot stretch and trim the Constitution to fit the current fashion. Regulatory strategies, no
matter how well intentioned, must not serve to contort those inherent rights and privileges
intrinsic to a constitutionally protected society.

I cannot emphasize enough that I agree in principle with my colleagues that the Secretary
can have access to the private medical records of miners that she seeks here, but she cannot gain
that access by fiat. The auditing initiative, in order to avoid conflict with fundamental
constitutional principles, must be subjected to the protections and the safeguards that only public
notice-and-comment proceedings can provide. The requirement for rulemaking does not place an
undue burden on the Secretary. Indeed she is currently engaged in developing rules for imposing
pattern of violations sanctions on mine operators pursuant to the authority of section 104(e) of
the Act. 30 U.S.C. § 824(e); 76 Fed. Reg. 5719 (Feb. 2, 2011). Since the auditing initiative is
apparently intended to provide data to aid in the decision on whether to impose the pattern of
violations sanction, it is only appropriate that this crucial component be added to the agenda of
the rulemaking proceeding. The Fourth Amendment permits no other way.

We pride ourselves on being a government of laws and not of men. Accordingly, no
matter how attractive and efficient a regulatory initiative may be in the abstract, if it implicates
fundamental rights of privacy and due process, if it imposes new obligations not found in current
regulations, and if it constitutes a radical departure from decades of prior practice and policy, it
must be promulgated subject to the full scrutiny and input of those who must live with and under
it.

Accordingly, I would reverse the judge and vacate all citations and orders issued in these
cases.

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

Distribution:

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Samuel Lord, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Daniel W. Wolff, Esq.

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004-2595

Thomas C. Means, Esq.

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004-2595

Alexander Macia, Esq.

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East

P.O. Box 273, Charleston, WV 25321

James A. Lastowka, Esq.

McDermott Will & Emery LLP

600 13th Street NW

Washington, DC 20005-3096

Arthur G. Sapper, Esq.

McDermott Will & Emery LLP

600 13th Street NW

Washington, DC 20005-3096

Administrative Law Judge Kenneth Andrews

Federal Mine Safety & Health Review Commission

Office of the Administrative Law Judges

7 Parkway Ctr.

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220

Administrative Law Judge Janet Harner

Federal Mine Safety & Health Review Commission

Office of the Administrative Law Judges

7 Parkway Ctr.

875 Greentree Rd., Suite 290

Pittsburgh, PA 15220