**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF THE CHIEF ADMINISTRATIVELAW JUDGE

7 PARKWAY CENTER, SUITE290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240/ FAX: 412-928-8689

 

 

 

**ORDER GRANTING SECRETARY’SMOTION FOR SUMMARY DECISION**

**AND DENYINGCONTESTANT’S MOTION FOR SUMMARY DECISION**

 

Before: Judge Lewis

 

This case is before me upon noticeof contest filed by Peabody Gateway North Mining, LLC (“Peabody” or“Contestant”) under Section 105(d) of the Federal Mine Safety and Health Act of1977, 30 U.S.C. § 815(d).

 

On March 6, 2023, Peabody submitted aMotion for Summary Decision and Memorandum of Points and Authorities in Supportof Motion for Summary Decision. In the Motion, Peabody requested that thisCourt vacate this docket. On March 23, 2023, the Secretary of Labor filed aResponse to Contestant Peabody Gateway North Mining, LLC’s Motion for SummaryDecision, both opposing the Contestant’s motion and cross-moving for summary decision.I denied the cross-motions for summary decision on April 3, 2023, because therewas not agreement on the material facts of the case. 

 

The followingday, Contestant filed an unopposed Motion for Reconsideration of this Court’sApril 3, 2023, order, stating that this Court’s denial of the cross-motions waspremature pursuant to Commission Procedural Rules 10(d) and 67(d), 29 C.F.R. §§2700.10(d) and 2700.67(d), which entitled Peabody to file a response to theSecretary’s cross-motion for summary decision. The Motion was accompanied by a Responsein Opposition to Secretary of Labor’s Cross-Motion for Summary Decision. Igranted Peabody’s Motion for Reconsideration on April 6, 2023. After reviewing Contestant’sResponse in Opposition dated April 4, 2023, and the Secretary’s subsequent Responsedated April 18, 2023, I issued an order denying the parties’ cross-motions onMay 18, 2023.

 

Before me arePeabody’s Renewed Motion for Summary Decision dated July 18, 2023; theSecretary’s Renewed Cross-Motion for Summary Decision dated July 28, 2023; and Peabody’sResponse in Opposition dated August 9, 2023. The Court may grant summarydecision where the “entire record...shows: (1) That there is no genuine issue asto any material 

fact; and (2) That the movingparty is entitled to summary decision as a matter of law.” 29 C.F.R. §2700.67(b); *see also UMWA, Local 2368 v. Jim Walter Res., Inc.*, 24FMSHRC 797, 799 (July 2002); *Energy West Mining*, 17 FMSHRC 1313, 1316(Aug. 1995) (citing *Celotex Corp. v. Catrett*, 477 U.S. 317, 327 (1986),which interpreted Fed.R.Civ.P. 56). “There is a genuine issue of material factif the nonmoving party has produced evidence such that a reasonable factfindercould return a verdict in its favor.” *Greenberg v. BellsouthTelecommunications, Inc.,* 498 F.3d 1258, 1263 (11th Cir. 2007) (citationomitted). The court must evaluate the evidence “in the light most favorable to... the party opposing the motion.” *Hanson Aggregates*, 29 FMSHRC at 9. 

 

In theirrespective submissions, the parties have confirmed that the material facts areuncontested and have submitted facts that show as much. *Contestant’s RenewedMotion for Summary Decision*, 1; *Secretary’s Renewed Motion for SummaryDecision*, 1. As agreed-upon by the parties, the relevant facts are asfollows. On December 08, 2022, MSHA issued Citation No. 9541193, alleging inthe Condition or Practice section that on December 05, 2022, a main fan outage occurredthat required miners to be withdrawn from the mine. Miners then re-entered themine with the section foreman and traveled back to the working sections beforean examination was conducted by certified examiners as required by 75.360(h)through (e). The Citation was marked as Significant and Substantial, as well asconstituting an unwarrantable failure to comply with a mandatory standard.

 

On January 5,2023, MSHA issued an information request related to Citation No. 9541193, requesting,*inter alia*, the contact information for all miners working the eveningshift on December 5, 2022. *Cont. Ren. MSD*, 2; *Secy. Ren. MSD*, 2. OnJanuary 17, 2023, Peabody supplied some of the information sought, but refusedto produce contact information for eight miners, stating that “miners who maybe considered agents of the operator on that shift may be contacted throughcounsel.” *Cont. Ren. MSD*, 2; *Secy. Ren. MSD*, 2, SX-B. On January19, 2023, MSHA issued a second set of requests and, among other informationsought, repeated its previous demand for the personal contact information forall miners that worked on the evening shift of December 5, 2022, includingthose that “may be considered agents of the operator.” *Cont. Ren. MSD*,2; *Secy. Ren. MSD*, 2, SX-C. Peabody responded on January 23, 2023, byagain refusing to supply the contact information of the eight miners “who maybe considered agents of the operator,” and stating that those miners “may becontacted through counsel.” *Cont. Ren. MSD*, 5; *Secy. Ren. MSD*, 2,SX-D. On January 24, 2023, MSHA issued Citation No. 9039082 for Peabody’srefusal to provide the contact information of the eight miners that it statedwere agents of the operator. *Cont. Ren. MSD*, 6, CX-H; *Secy. Ren. MSD*,2. 

 

The Conditionor Practice section of Citation No. 9039082 alleges as follows:

 

OnJanuary 5, 2023, the Mine Operator received a request for information from MSHAregarding case VINC-CSI-2023-02. The Mine Operator was given 11 days to complywith the due date of January 16, 2023. The Operator did not request anextension or provide all of the requested information. On January 17, 2023, theOperator sent a partial inadequate response to the request for information. OnJanuary 19, 2023, MSHA requested additional information and requested that theoriginal request be complied with fully by January 23, 2023 by 12:00 p.m.Central Time. As of 12:00 noon on January 23, 2023, the Operator has notresponded in full by providing the information from items #2 and #3 on theinitial request. At this time the operator has not complied and daily penaltieswill be requested to gain compliance from the operator.

 

TheOperator’s failure to provide the requested information is a violation ofSection 103(a)(h) of the Mine Act.

 

Contestant, inits briefs and exhibits, provides ample evidence that the eight individuals inquestion could be considered agents of the operator on the date in question,and the Secretary argues that the status of these miners is irrelevant. *Secy.Ren. MSD*, 3. Therefore, for the purposes of this analysis, this Court willassume that the eight miners are agents and address the validity of Citation No.9039082. 

 

Section 103(a)(h)of the Mine Act, which the Citation alleges was violated, states as follows:

 

(a)  Authorized representatives of the Secretary or the Secretary of Health,Education, and Welfare shall make frequent inspections and investigations incoal or other mines each year for the purpose of (1) obtaining, utilizing, anddisseminating information relating to health and safety conditions, the causesof accidents, and the causes of diseases and physical impairments originatingin such mines, (2) gathering information with respect to mandatory health orsafety standards, (3) determining whether an imminent danger exists, and (4)determining whether there is compliance with the mandatory health or safetystandards or with any citation, order, or decision issued under this title orother requirements of this Act. In carrying out the requirements of this subsection,no advance notice of an inspection shall be provided to any person, except thatin carrying out the requirements of clauses (1) and (2) of this subsection, theSecretary of Health, Education, and Welfare may give advance notice ofinspections. In carrying out the requirements of clauses (3) and (4) of thissubsection, the Secretary shall make inspections of each underground coal orother mine in its entirety at least four times a year, and of each surface coalor other mine in its entirety at least two times a year. The Secretary shalldevelop guidelines for additional inspections of mines based on criteriaincluding, but not limited to, the hazards found in mines subject to this Act,and his experience under this Act and other health and safety laws. For thepurpose of making any inspection or investigation under this Act, theSecretary, or the Secretary of Health, Education, and Welfare, with respect tofulfilling his responsibilities under this Act, or any authorizedrepresentative of the Secretary or the Secretary of Health, Education, andWelfare, shall have a right of entry to, upon, or through any coal or othermine.

 

(h)  Inaddition to such records as are specifically required by this Act, everyoperator of a coal or other mine shall establish and maintain such records,make such reports, and provide such information, as the Secretary or theSecretary of Health, Education, and Welfare may reasonably require from time totime to enable him to perform his functions under this Act. The Secretary or theSecretary of Health, Education, and Welfare is authorized to compile, analyze,and publish, either in summary or detailed form, such reports or information soobtained. Except to the extent otherwise specifically provided by this Act, allrecords, information, reports, findings, citations, notices, orders, ordecisions required or issued pursuant to or under this Act may be publishedfrom time to time, may be released to any interested person, and shall be madeavailable for public inspection.

 

30 U.S.C. § 813(a)(h).

 

Citing theSeventh Circuit case, *Big Ridge v. FMSHRC*, 715 F.3d 631 (7thCir. 2013), Contestant argues that under applicable law, a request by MSHAunder Section 103(h) for documents or information not required to be maintainedmust be “reasonable.” *Contestant’s Memorandum of Points and Authorities*,7. Specifically, a reasonable request must be limited in scope, manner, andtime, which it interprets as “information needed by the agency to verify aspecific point of compliance and is conducted by appropriate means.” *Id.*at 7-8. The Contestant states that with regard to the contact information ofminers that were agents of the operator, “MSHA presumably made this request sothat it could have contacted agents without company counsel’s involvement,” andthat such a request is unreasonable under *Big Ridge*. *Id.* at 8. Contestantargues that as agents of the operator, these miners’ statements may be imputedto the company for purposes of negligence and unwarrantable failure. *Id.*at 10-11. Citing attorney-client privilege and the transcript from an ALJhearing, the Contestant argues that MSHA was not permitted to interview asupervisor without company counsel present. *Id.* at 11-12. 

 

The Secretary similarlycites *Big Ridge* to argue that its request for the contact informationfor the eight miners at issue under Section 103(h) was reasonable. *Secy. Ren.MSD*, 4-5. In the instant case, MSHA argues that its requests were limitedto personal contact information of miners working on a single relevant shiftand that they were necessary to offer confidential interviews to miners duringthe course of an investigation. *Id.* 4-6. Furthermore, it argues thatContestant’s claims are not ripe for determination because MSHA routinelycontacts miners during an investigation and offers them the ability to give aconfidential interview. *Id.* 6. It is only if a miner declines to act asa government informant that MSHA has an obligation to determine if the miner isan agent and represented by counsel. *Id.*The Secretary argues that theContestant’s allegations that it is trying to circumvent counsel forillegitimate purposes are premature and incorrect. *Id.* at 6-7.

 

Section 103(h)of the Mine Act provides that, “In addition to such records as are specificallyrequired by this Act, every operator of a coal or other mine shall establishand maintain such records, make such reports, and provide such information, asthe Secretary ... may reasonably require from time to time to enable him toperform his functions under this Act.” 30 U.S.C. § 813(h). In *Big Ridge*,the Seventh Circuit considered whether MSHA had the authority under Section103(h) to require mine operators to permit MSHA inspectors to review employeemedical and personnel records in order to verify that operators were notunderreporting injuries and illnesses. The Court affirmed MSHA’s authority todemand such documents, holding that “the [Mine] Act grants MSHA broadinspection and document review powers, including the power to ‘reasonablyrequire’ mines to provide information that would enable MSHA to perform [its]functions under [30 U.S.C. § 813(h)]” 715 F.3d at 638. The Court defined a“reasonable” demand as one that is “limited in scope, manner, and time.” *Id.*at 641-642. In *Big Ridge*, the Court found that the scope was reasonable becauseit included only the information needed to verify injury and illness reportingcompliance; the manner was reasonable because MSHA requested “only to inspectand copy the relevant records, not to rummage through mine offices;” and thetime limits were reasonable because they only covered records for one year. *Id.*at 642. Furthermore, the Court highlighted that “verifying compliance with theMine Safety Act and relevant regulations is one of the express purposes forwhich Section 813(a) authorizes MSHA to inspect and investigate mines.” *Id.*

 

Applying the *BigRidge* test for reasonableness to the instant case, I find that MSHA’srequest for the personal contact information of the miners working on the shiftat issue was reasonable. MSHA issued its information request in this case aspart of an investigation into an alleged fan outage and subsequent failure toperform a Section 313(d) investigation on December 05, 2022. The request waslimited in scope as it did not demand the personal contact information of allminers, but only those related to the investigation into the alleged violation.The request was limited in time as it only asked for the contact information ofthe miners working on a single shift on the date of the alleged violation.Lastly, the manner here was reasonable because MSHA asked the company to providerelevant records it had on hand rather than sending inspectors to “rummagethrough mine offices” for the personal contact information of miners. 

 

The Secretary hasstated that the primary reason it needs the personal contact information of theminers who worked the shift at issue is to offer them confidential interviewsas government informants. The Secretary’s right to interview miners is centralto the functioning of the Mine Act. *See BHP Copper, Inc.*, 21 FMSHRC 758,765 (July 1999) (“Unless the Secretary’s right to be on mine property andinvestigate accidents is a hollow one, it must carry with it the right tointerview witnesses.”). Miners who participate in MSHA interviews are entitledto have their identities withheld in order to prevent retaliation. The Mine Actand its legislative history highlight the importance of providingconfidentiality to government informants. Section 103(g)(1) of the Act requiresthat the names of miners who complain of safety violations be removed from thenotice provided to operators. 30 U.S.C. § 813(g)(1). The legislative history ofthe Mine Act explained the reasoning for such confidentiality:

 

TheCommittee is aware of the need to protect miners against possiblediscrimination because they file complaints, and accordingly, the Sectionrequires that the name of the person filing the complaint and the names of anyminers referred to in the compliant not appear on the copy of the complaintwhich is served on the mine operator. While other provisions of the billcarefully protect miners who are discriminated against because they exercisetheir rights under the Act, the Committee feels that strict confidentiality ofcomplainants under Section [103(g)(1)] is absolutely essential.

 

S. Rep. No. 95-181, at 29, *reprintedin Legis. Hist.* at 617, *reprinted in* Senate Subcomm.on Labor, Comm. on Human Res., 95th Cong., *Legislative History of theFederal Mine Safety and Health Act of 1977* (1978). Citing to thislegislative history, the Commission stated that:

 

Thereasoning behind this right to confidentiality is considered so persuasive thatthe Commission adopted a version of the right for Commission proceedings,recognizing that witnesses who qualify for it should generally be protected bythe informant's privilege. *See Sec'y on behalf of Logan v. Bright Coal Co.*,6 FMSHRC 2520, 2524-25 (Nov. 1984); *see also* Commission Procedural Rule61, 29 C.F.R. § 2700.61 (“A Judge shall not, except in extraordinarycircumstances, disclose or order a person to disclose to an operator or hisagent the name of an informant who is a miner.”).

 

*Sec’y obo McGary and Bowersox,et al. v. Marshall County Coal Co., et al.*, 38 FMSHRC 2006, 2014 (Aug.2016). MSHA has a right and responsibility to contact miners during aninvestigation to offer them the opportunity to make confidential statements asgovernment informants. Therefore, similar to the facts in *Big Ridge*, MSHA’sinformation request here is also “relevant to the goals of the statutory schemeand the government’s interest in miner safety.” 715 F.3d at 646. 

 

The Contestantargues that since the miners at issue were agents of the operator, then MSHAcan only contact them through counsel. However there appears to be nojustification in the Mine Act or caselaw that miners who are supervisors, orotherwise can be considered agents of the company, lose their rights under theMine Act to make confidential safety complaints to MSHA. To require MSHA to havecompany counsel present while informing miners of their rights to makeconfidential complaints, and while conducting confidential interviews, wouldeffectively strip these miners of their rights. The Secretary is limited in certainways that it can interview agents of the operator, but not in providing a minerthe opportunity to make confidential safety complaints to the government.[1]

 

This Court isin agreement with the Secretary that many of Contestant’s claims and argumentsare premature and speculative. Contestant argues that MSHA is attempting tocircumvent counsel and violate attorney-client privilege by requesting thepersonal contact information of miners. *Cont. Ren. MSD*, 10-12. Whilethere is certainly the possibility that MSHA would abuse the information itreceived, there is no evidence in this case that it planned to do so.[2]If, at some future point, the Secretary were to use the personal contactinformation of a miner agent to interview him after he declined to serve as agovernment informant, then the Contestant would not be without recourse. Asillustrated by Contestant’s citation to the transcript provided in CJ-X, whereJudge McCarthy struck the testimony of a miner after determining that thewitness was a supervisor and MSHA had not notified company counsel of theinterview, Contestant can object to the use of any improperly gatheredinformation from the miners at issue. However, the possibility that MSHA maymisuse the contact information provided is not grounds for withholding it inadvance, in violation of Section 103(h).

 

Accordingly,the Secretary’s Motion for Summary Decision is **GRANTED** and theContestant’s Motion for Summary Decision is **DENIED**. Citation No. 9039082is **AFFIRMED** and Contestant is **ORDERED** to provide MSHA theinformation sought in the January 5, 2023, and January 19, 2023, informationrequests within 30 days of this Order.

 

 

 

 

                                                                        /s/John Kent Lewis

John Kent Lewis

AdministrativeLaw Judge

 

 

 

Distribution: 

 

Haley R. Jenkins, Esq., Office of the Solicitor, 230 S.Dearborn Street, 8th Floor, Chicago, Illinois 60604 (jenkins.haley.r@dol.gov) 

 

Arthur M. Wolfson, Fisher & Phillips LLP, Six PPG Place,Suite 830, Pittsburgh, PA 15222, (awolfson@fisherphillips.com)

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[1]Obviously, nothing would prevent Contestant prior to its disclosure ofrequested contact information to MSHA, from notifying employees whom it deemedto be agents of the operator during the time period in question, to seek, ifthey so wished, advice from Contestant’s counsel, before speaking with MSHA.

[2]Indeed, in almostevery legal proceeding, there is the possibility that a lawyer will abuseinformation that it receives, leak discovery documents, or otherwise act in anunethical manner. However, courts must presume that lawyers will act in anethical manner, absent evidence to the contrary.