Aggregates Manager Digital Magazine
Issue link: https://read.dmtmag.com/i/85660
Rock by Laura E. Beverage and Christopher G. Peterson The agency's ever-changing role merits another look at its boundaries for inspection and investigation. EVOLVING AUTHORITY I MSHA's n last month's Rock Law column, a Jackson Kelly associate discussed how the Federal Mine Safety and Health Review Commis- sion's decision in Peabody Midwest Mining, LLC, et al. signaled a departure from the long held notion that the Mine Safety and Health Ad- ministration (MSHA) lacked authority to obtain documents not required to be maintained under the Mine Act in the context of the Part 50 audit. However, this is not the final word in the discussion regarding the scope of MSHA's access to docu- ments. In Peabody Midwest Mining, LLC, et al., the Review Commission emphasized that any document request must be reasonable, and the information sought must be rel- evant and necessary to a legitimate agency purpose. Thus, once a document request is made, an operator could be subjected Laura E. Beverage is a member of Jackson Kelly PLLC and manages its Denver office. She can be reached at 303-390-0004 or lbeverage@jacksonkelly.com. Christopher G. Peterson is an associate in the firm's Denver office. He can be reached at 303-390-0009 or cgpeterson@jacksonkelly.com. to enforcement actions and significant penalty po- tential when challenging the relevance and scope of any request before a Review Commission ALJ and the Review Commission. However, even a legal challenge to MSHA's document request authority may meet with limited success as the discussion of § 103(h) extends to areas not addressed in the Peabody Midwest Min- ing, LLC decision. For example, in Hopkins County Coal, LLC v. Secretary of Labor, 2012 WL 1564568 (ALJ Barbour April 2012), MSHA investigated a § 105(c) discrimination complaint which made no specific claims of protected activity. The MSHA special investigator asked for a number of docu- ments from the operator, including documented hazards (whether or not included in the required record books), employee handbook editions for five years, all personnel files of disciplined or termi- nated employees for a period of five years, and all documents relied upon by the operator in its deci- sion to terminate the individual. subjected to enforce ment actions and significant penalty potential when challenging the relevance and scope of any request. Once a docu ment request is made, an operator could be The operator's legal counsel repeatedly sought clarification as to how the miner complaint stated a viable claim under the Mine Act and how the complaint was related to any of the requested docu- ments. Ultimately, the operator provided those records required to be maintained un- der the Mine Act, but refused to provide the personnel files. MSHA issued a citation alleg- ing violation of § 103(a) of the Mine Act for impeding the inspection, followed by a § 104(b) failure to abate order, citing author- ity under § 103(h) of the Mine Act which MSHA argued gave them access to the personnel records. The Secretary noted that she also had the option to seek an injunction under § 108 for failure to provide the documents, but that she opted for the failure to abate order. The operator argued before the ALJ that the personnel files are protected by the Fourth Amend- ment right against unreasonable search and seizure and would not be released without specific releases from the employees whose files were requested. The operator also argued that the requests were AGGREGATES MANAGER September 2012 49