Issue link: https://read.dmtmag.com/i/75471
Rock by Jason P. Webb Commission's decision requires operators to hand over miners' information, including documents not required to be retained. MSHA EXPANDS Federal Mine Safety and Review Commission (the Commission), upheld the Mine Safety and Health Administration's (MSHA) right to make intrusive document requests of operators. The Commission's decision has been appealed to the Seventh Circuit Court of Appeals. M On May 24, 2012, in a 4-1 decision, the Commis- sion decided Peabody Midwest Mining LLC et. Al, in which it permitted MSHA to demand operators' medical and payroll records that are not required to be maintained. The Commission considered the consolidated appeal of two earlier cases decided in favor of MSHA, brought by subsidiaries of Peabody Energy Corp. and Massey Energy Co. (now owned by Alpha Natural Resources) (collectively, the operators). A group of miners also intervened on behalf of the operators and sought to prevent dis- closure of the information claiming that it invaded miners' privacy rights. Jason P. Webb is an associate in Jackson Kelly PLLC's Pittsburgh office. He can be reached at 412-434-8055 or jpwebb@jacksonkelly.com. 42 The impetus for the case was MSHA's 2010 nationwide effort in which it conducted audits of 39 mines to verify operator compliance with Part 50 reporting requirements. Under Part 50, opera- tors are required to notify MSHA of all injuries that occur at all mine sites subject to MSHA's jurisdiction. For purposes of the audit, MSHA requested not only accident and production reports that are required to be maintained, but also payroll records and miners' medical records for the prior year. These additional requests for information were not required to be maintained under the Mine Act and had not previously been sought in any nationwide initiative. The demand for medical records was particularly expansive AGGREGATES MANAGER August 2012 ine operators now have less free- dom to properly refuse to turn over documents demanded by in- spectors. A recent decision by the its Access to Records and included "[a]ll medical records, doctor's slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records, and medical claim 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 the prior year. On appeal to the Commission, the operators argued that the information requests exceeded MSHA's authority and rule, and comment rule- making was necessary to procure the production of the information sought. In support of its requests, MSHA relied on sec- tion 103(h) of the Mine Act and 30 CFR § 50.41. Both provisions grant MSHA broad authority to request information from operators. In its decision, the Commission upheld the rulings compelling disclosure, determining that MSHA has authority to access the information at issue. The Commission concluded that 103(h) of the Mine Act and Section 50.41 independently authorize the demands for information. With re- spect to 103(h), the Commission construed the statute to give MSHA "authority to request what- ever information she deems relevant and neces- sary," even though it is not otherwise required to be maintained or disclosed to MSHA, so long as the requests were "reasonable." The Commission held that its decision permitting the information requests was bolstered by similar language found elsewhere in the Mine Act, as well as its legisla- tive history. The Commission also determined that MSHA properly relied on 30 CFR § 50.41 for authority, finding that its text and preamble supported the Secretary's request for information. Section 50.41 permits the Secretary to obtain information to