FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9953 / FAX: 202-434-9949

April 2, 2012

DECISION

Appearances:  Matthew Shepherd, Esq., U.S. Department of Labor, Nashville, Tennessee on  behalf of the Secretary;

Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick & True, PPLC, and Gary McCollum, Esq., Lexington, Kentucky on behalf of Hopkins County Coal, LLC.

Before: Judge Barbour

These consolidated contest and civil penalty proceedings arise under section 105(d) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 815(d)) (AMine Act@ or AAct@). In the contest proceedings Hopkins County Coal, LLC (AHCC@) contests the validity of two citations and one withdrawal order issued to the company at its Elk Creek Mine in Hopkins County, Kentucky on March 23, 2009, by Mine Safety and Health Administration (AMSHA@) Special Investigator Kirby Grant Smith. The citations and order were issued because HCC failed to produce records requested by the Secretary during her investigation of a discrimination complaint made by former HCC miner, Robert Gatlin. In the civil penalty proceeding the Secretary seeks civil penalties for the company=s alleged violation of the Mine Act=s record production requirements.

EVENTS LEADING TO THE CONTESTS

Robert Gatlin, a belt examiner at the mine, filed a discrimination complaint with MSHA on January 20, 2009. Gov. Ex. 1. In the complaint, Gatlin, who was fired by HCC on January 8, 2009, alleged he was discharged in violation of section 105(c) of the Mine Act. 30 U.S.C. § 815(c). Gatlin also requested temporary reinstatement. Tr. 44. MSHA notified the company of the complaint by letter that same day. Secy=s Mot. for Sum. Dec. 2. Special Investigator Kirby Smith interviewed Gatlin. Tr. 47- 48. Based on the interview and Gatlin=s complaint, Smith believed Gatlin may have engaged in protected activity and may have suffered adverse action. Tr. 48. On January 26, the MSHA district manager, Carl E. Boone II, advised HCC by letter that MSHA wanted to interview five named miners Aas part of . . . [its] investigation of . . . [Gatlin=s] [d]iscrimination [c]omplaint . . . during the fact-finding segment of this investigation.@ Gov. Ex. 2. Boone requested HCC contact MSHA special investigators Kirby Smith or Rodney Adamson by February 6 Awith a convenient date and time to conduct these interviews.@ Id. By letter dated February 6, counsel for HCC refused to arrange the requested interviews unless MSHA identified the protected activity alleged in the complainant=s discrimination complaint. Gov. Ex. 3.

            On February 23, Boone sent HCC=s counsel a letter in which MSHA requested:

1. Robert Gatlin=s personnel file[;]

2. Any documents showing disciplinary action that

    was taken against Robert Gatlin by [HCC;]

3. Documents showing any hazards or potentially

    hazardous conditions, including but not limited to

    pre-shift, on-shift and conveyor belt examination

    books at the Elk Creek Mine for the period of

    July 1, 2008 - January 31, 2009[;]

4. Any employee handbook or employee manual

    that was used by [HCC] from

    January 1, 2004 - January 20, 2009[;]

5. The personnel files of all employees at the

    Elk Creek Mine who were disciplined,

    reprimanded, or terminated during the period of

    January 1, 2004 - January 20, 2009 for engaging

    in the conduct which led to the termination

    of Robert Gatlin.

6. All documents relied upon by [HCC] in its

    decision to terminate Robert Gatlin[.]

Gov. Ex. 4.

MSHA requested that the documents be provided to Smith by the close of business on March 2, 2009. Id.

In a letter to Boone dated March 2, counsel for HCC again asserted the complaint did not state a protected activity and renewed his request that MSHA clarify Ahow . . . [the complaint] states a claim under the Mine Act.@ Gov. Ex. 5. Counsel noted the record books requested in the February 26 letter were available for review at MSHA=s convenience, and counsel stated he would respond to the request for the other items once he discussed the request with HCC officials. Gov. Ex. 5.

            On March 17, the district manager again wrote to counsel, advising him that MSHA=s special investigators would be at the mine on March 23 and that they intended to review and copy the specified examination books. Gov. Ex. 6. The district manager asked counsel to Aremind [his] client of its obligation to cooperate in [the] investigation and produce the records that have been requested.@ Gov. Ex. 6. The letter also requested HCC have Aall documents listed in the February 23 . . . letter . . . available for inspection . . . on March 23, 2009.@ Gov. Ex. 6.

In a March 18 letter to Boone, counsel for HCC again requested Aclarification regarding how [Gatlin=s complaint] states a claim under the Mine Act.@ Gov. Ex. 7. Counsel asserted one of HCC=s rights under the Act Ais to know what it is the agency is investigating.@ Gov. Ex. 7. Counsel for HCC then attached documents or made available all the information requested except the personnel files of Gatlin and other employees disciplined, reprimanded or terminated Afor engaging in conduct which led to the termination of . . . Gatlin.@ Gov. Ex. 7. The impasse over the personnel files led Boone to again write to the company=s counsel. In a letter dated March 20, Boone stated that he expected the personnel files to be provided to the special investigators on March 23. Id. Counsel for HCC reiterated its objections to release of the requested personnel files in a letter dated March 23. Gov. Ex. 9.

            On March 23, Supervisory Special Investigators Smith and Adamson arrived at the mine at 8:00 a.m. Tr. 65-66. The inspectors went to the mine office. Tr. 66. Smith asked William Adelman, the mine general manager, for the previously requested examination books. Tr. 66. Adamson reviewed the conveyor belt examination book, apparently the only book in which the special investigators were interested. Tr. 67. They also asked for the personnel files requested in the February 23, 2009 letter, of which Adelman had received a copy. Tr. 67, 118. Smith testified that Gatlin=s personnel file was requested in order to determine his work history, including any disciplinary action taken against him, to find any information corroborating Gatlin=s allegations and to determine his general credibility. Tr. 56, 68. The personnel files of other similarly situated employees were requested in order to determine whether there was evidence of disparate treatment. Tr. 56.

Adelman refused to produce the personnel files. Tr. 67. Adelman believed that the requests in the February 23, 2009 letter for the personnel files of employees disciplined, reprimanded or terminated for engaging in the same conduct as Gatlin and for the documents relied upon by HCC in its decision to terminate Gatlin were vague. Tr. 119. However, he did not request clarification because he believed those files were Aoff limits to MSHA.@ Tr. 119-120. Adelman told Smith that privacy concerns prevented him from turning over the requested files. Tr. 67. Since he believed the files to be off limits, Adelman did not ask Inspector Smith to narrow the scope of his request nor did Adelman ask to withhold certain private non-relevant documents contained within the personnel files. Tr. 126. In response to Adelman=s privacy concerns Smith explained that MSHA investigators were exempt from Health Insurance Portability and Accountability Act (AHIPAA@) regulations. Tr. 67. Adelman still refused to provide the records. Id. Smith then issued Citation No. 6694904 (Docket No. KENT 2009-820-R) alleging HCC violated section 103(a) of the Act, when it:

failed to produce/provide records requested by MSHA special investigators during the performance of investigative duties under section 105(d) of the Act.[ ] On February 23, 2009[,] written requests for specific documents were given to the operator=s legal counsel . . . as directed by the mine operator. Sections 103(a) and [103](h) of the Act [require] the operator to furnish information requested by the Secretary that she has determined necessary in carrying out the provisions of the Act.[ ]

            Citation No. 6694904, Gov. Ex. 10.

In issuing the citation, Smith gave HCC 45 minutes, or until 9:00 a.m., to comply. See Citation No. 6694904. Smith advised Adelman to contact his counsel during the abatement period. Tr. 67. At 8:50 a.m. Adelman informed Smith that he had spoken to counsel and did not intend to produce the requested personnel files. Tr. 72. Smith did not extend the abatement period because he believed he had set a reasonable time for abatement and an extension was not justified. Tr. 74. Smith waited until the abatement period expired, then at 9:00 a.m. he issued Order No. 6694905 (KENT 2009-821-R) to the company pursuant to section 104(b) of the Act (30 U.S.C. § 814(b)).

                                           In issuing the order, Smith stated:

The operator[=s] agent . . . refused to comply with

the [sic] Citation No. 6694904 requiring the operator

                        to produce/provide records requested by MSHA

                        Special Investigators during the performance of

                        their official duties in the [sic] investigation activities

under [section] 105(c) of the Mine Act.

Order No. 6694905, Gov. Ex. 11.

After five minutes passed and the requested documents still were not produced, at 9:05 a.m. Smith issued another section 104(a) citation to HCC for continuing to work in the face of a 104(b) withdrawal order. Citation No. 6694906 (KENT 2009-822-R) states:

The operator[=]s agent continued to deny to [sic]

produce/provide the records requested by [the]

MSHA Special Investigator after the reasonable

time for abatement had expired on . . . 104(a)

[C]itation No. 66904904. The Operator[=]s

agent continued to refuse to provide the requested

records after . . . 104(b) withdrawal [O]rder No.

66904905 was issued.

This citation is issued for continuing to operate

in [the] face of a withdrawal order.

Citation No. 6694906, Gov. Ex. 12.

Smith indicated Citation No. 6694906 should be abated by 10:00 a.m. Gov. Ex. 12. When the citation was not abated, HCC became subject to the provisions of section 110(b)(1) of the Act, which provides that A[a]ny operator who fails to correct a violation for which a citation has

been issued under section 104(a) within the period permitted for its correction may be assessed

a civil penalty of not more than $5,000 for each day during which such failure or violation

continues.@ 30 U.S.C. § 820(b)(1). On the same day the citations and order were issued, HCC filed notices of contest with the Commission. Shortly thereafter, HCC filed a motion requesting an expedited hearing, which the Secretary opposed.

PROCEDURAL BACKGROUND

The contest dockets, Docket Nos. KENT 2009-820-R, KENT 2009-821-R and KENT 2009-822-R, were initially assigned to Commission Administrative Law Judge Jacqueline Bulluck. On March 24, Judge Bulluck initiated a conference call with the parties. Subsequently, the dockets were reassigned from Judge Bulluck to me. In a conference call on March 27, 2009, the parties stated that they agreed how to abate the citations and order and that abatement occurred on March 26, 2009, ending HCC=s continuing liability under section 110(b)(1) of the Act for daily penalty assessments (30 U.S.C. § 820(b)(1)) and obviating the need for an expedited hearing. Accordingly, on April 02, 2009, I issued an order denying HCC=s motion to expedite. Counsels then filed cross-motions for summary decision. In an April 21, 2009 order I deferred ruling on the motions until the issuance of proposed civil penalties for the alleged violations of the Act.

            On September 30, 2009, the Commission received the Secretary=s civil penalty petitions for the citations and order. Docket Nos. KENT 2009-1441 and KENT 2009-1442 were initially assigned to Commission Administrative Law Judge Alan Paez. They were reassigned to me to facilitate resolution of both the contest and civil penalty dockets. In the civil penalty petition for Docket No. KENT 2009-1441 the Secretary proposed a penalty of $112.00 for the violation of section 103(a) of the Act charged in Citation No. 6694904. The Secretary also proposed a penalty of $436.00 for Citation No. 6694906 which alleged HCC continued to operate in the face of a withdrawal order and continued to violate section 103(a) by refusing to produce the requested records. Daily penalties totaling $1,500.00 were assessed and were associated with the 104(b) withdrawal order, Order No. 6694905, in Docket No. KENT 2009-1442. On May 24, 2011 the Commission received the Secretary=s unopposed motion to amend the civil penalty petition for Docket No. KENT 2009-1441. Secy=s Mot. to Amend 2. The Secretary stated the $1,500.00 in daily penalties assessed for continuing to operate in the face of a withdrawal order should have been assessed for Citation No. 6694906 rather than for Order No. 6694905. Tr. 13, Secy=s Mot. to Amend 2. She stated that if the motion to amend was granted the Secretary would not seek a penalty for Order No. 6694905. Id. Following the filing of the civil penalty petitions a hearing was held in Evansville, Indiana on June 07, 2011. The Secretary=s unopposed motion to amend the civil penalty petition was approved on the record. Tr. 14. This disposed of Docket No. KENT 2009-1442, which was subsequently dismissed on the record. The Secretary=s motion for summary decision and HCC=s cross-motion for summary decision were denied due to the parties= inability to resolve their differences regarding the validity of the citations and order and the importance of the issues involved.

STIPULATIONS

The parties entered the following stipulations on the record:

1. At all times relevant to this proceeding, Hopkins County  Coal, LLC, was the operator of the Elk Creek Mine, Mine ID  No. 15-18826.

2. The Elk Creek Mine is a Amine@ as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

3. At all times relevant to this proceeding, products of Elk Creek Mine entered commerce, or the operations or products thereof affected commerce, within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.

4. Employees at the Elk Creek Mine produced more than 3,000,000 tons of coal in 2009. Hopkins County Coal, LLC is a large operator.

5. Copies of the violations at issue in this proceeding were served on Hopkins County Coal, LLC by an authorized representative of the Secretary.

            6. Hopkins County Coal, LLC timely contested the violations.

7. Hopkins County Coal, LLC is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and the presiding Administrative Law Judge has the authority to hear this case and issue a decision regarding this case.

8. The proposed penalties will not affect Hopkins County Coal, LLC=s ability to remain in business.

Jt. Ex. 1.

THE PARTIES’ ARGUMENTS

         HCC argues the contested citations and order must be vacated because MSHA is not entitled to the personnel files it requested without a warrant. HCC’s Resp. to Secy’s Mot. for Sum. Dec. and Cross-mot. for Sum. Dec. 6 (“HCC’s Resp.”). HCC notes the files are not documents required to be maintained by the operator pursuant to the Mine Act. Id. HCC argues that while records required to be kept under the Mine Act must be available to MSHA, and while an operator has no realistic expectation of privacy in such records, the same is not true if sought-after files also contain data not required to be maintained under the Mine Act. Id. The company insists the government does not have a right to “rummage in any wholesale way or to initiate a general search” for records and documents not required to be kept under the Mine Act. Id. at 6 (quoting Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp. 48, 51, n.5 (S.D. Ohio 1973)). HCC also points to Administrative Law Judge James Broderick’s decision in Sewell Coal Co., 1 FMSHRC 864 (July 1979) in which, according to HCC, Judge Broderick recognized constitutional difficulties prevented MSHA from validly issuing a citation and order when Sewell refused to allow MSHA to inspect personnel files in order to determine Sewell’s compliance with Part 50 reporting requirements. HCC’s Resp. 6-7.

            The Secretary contends section 103(a) (30 USC § 813(a)) (authorizing the Secretary to make “frequent . . . investigations . . . for the purpose of . . . determining whether there is compliance with . . . [the] requirements of this Act”); section 103(h) (30 USC § 813(h)) (requiring operators to “provide such information, as the Secretary . . . may reasonably require from time to time to enable him to perform his functions under this Act); and section 108 (30 U.S.C. § 818) (allowing the Secretary to seek civil relief when an operator does not, “permit access to, and copying of, such records as the Secretary . . . determines necessary to carry out the provisions of [the] Act”) require HCC to produce the requested personnel files and information. Secy’s Mot. for Sum. Dec. 6. She asserts when HCC failed to produce the information the Secretary had the discretion to proceed against the company either by issuing the subject citations and order, or by seeking relief in federal district court under section 108 of the Act, or by proceeding on both tracks. Secy’s Mot. for Sum. Dec. 6-7.

            HCC counters that release of employees’ personnel files would violate the privacy rights of its employees. HCC’s Resp. 6. HCC argues the files are protected by the Fourth Amendment of the Constitution. HCC contends that turning the files over without releases from its employees would violate HIPAA and could expose HCC to litigation. Tr. 23. Counsel for HCC, citing Wheeler v. Sorenson, 415 S.W.2d 582 (Ky. Ct. App. 1967), contends that employees in Kentucky have sued their employers for releasing their personnel files. Tr. 176.

The Secretary responds that HCC cannot refuse to provide the information because the Secretary lacks a waiver and release from Gatlin and/or the other employees. Secy’s Mot. for Sum. Dec. 7. According to the Secretary, HCC bears the burden of showing the Secretary’s investigative authority under section 103(a) and section 103(h) of the Act is subject to any statutory exception requiring the Secretary to obtain waivers and releases, and HCC has not done so. Id.

            HCC also argues that “[t]he request [was] unduly burdensome and . . . tantamount to harassment in the overly broad, sweeping request for all files covering a five-year period.” The Secretary counters that she has only requested “[Gatlin’s] files and the files of those employees and former employees whom [HCC] has ‘disciplined, reprimanded or terminated . . . for engaging in the conduct which led to the termination of . . . Gatlin.” Secy’s Mot. for Sum. Dec. 9 (quoting MSHA Letter of February 23, 2009, Carl E. Boone II, District 10 Manager to Marco M. Rajkovich, Jr., Counsel to HCC ). She describes her requests as “clear, narrowly drawn and relevant.” Id. In summarizing her position, the Secretary states she must determine whether Gatlin was treated differently than other similarly situated employees, and that HCC cannot avoid production of lawfully demanded records by making “unsupported and baseless demands for waivers and releases designed for the purpose of impeding the Secretary’s investigation.” Secy’s Mot. for Sum. Dec. 10. The Secretary argues that HCC’s contests are “without merit and there are no constitutional matters at issue.” Secy’s Resp. to Contestant’s Mot. for Sum. Dec. 1.

             The company also takes issue with the wording of the February 23 request for “[t]he personnel files of all employees at the Elk Creek Mine who were disciplined, reprimanded, or terminated during the period of January 1, 2004 – January 20, 2009 for engaging in the conduct which led to the termination of Robert Gatlin.” HCC Resp. 3. According to HCC, MSHA actually sought “files evidencing that other employees have been disciplined for similar reasons as the reason that HCC claims it disciplined Gatlin.” HCC Resp. 10. HCC contends such evidence, if it existed, would support HCC’s affirmative defense. Id. It would not support the existence of a valid claim. Id. HCC states MSHA should have requested “personnel files of individuals who engaged in the same conduct as Gatlin, but were not disciplined.” Id. HCC contends that MSHA and Gatlin have no information any employees have been treated disparately, and it asserts Gatlin and the Secretary engaged in a “fishing expedition” to see if they could uncover a case without any reasonable cause to believe that discrimination actually had occurred. Id. at 10-11. HCC claims that any delays in producing the files were due to MSHA’s failure to timely respond to several requests made for clarification of MSHA’s requests for information. HCC asserts it was not until the March 24 conference call with Judge Bulluck that it understood that the documents MSHA was requesting were “presumably . . . [those] related to HCC’s reason for termination of Gatlin, as may be applicable to other similarly disciplined employees, and apparently not documents related to Gatlin’s reason for why he thinks he was terminated.” HCC’s Resp. 4 (emphasis in original).  

            With this understanding, HCC produced the requested files. Finally, HCC argues that it did not have fair notice the Secretary interpreted sections 103(a) and 103(h) of the Mine Act to give her the authority to request personnel files. HCC Supp. Resp. Sum. Dec. 8-9.

RESOLUTION OF THE ISSUES

Whether a Search Warrant Was Required

As noted, HCC contends that though it has no reasonable expectation of privacy in files maintained pursuant to the Act, it has a reasonable expectation of privacy in its other files, including personnel files, and the Secretary must obtain a warrant in order to access them. I disagree. Warrants are not required for administrative searches made pursuant to the Mine Act. Donovan v. Dewey, 452 U.S. 594, 604 (1981). A warrant is not constitutionally required where, “Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner . . . cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Dewey, 452 U.S. at 600. Congress reasonably determined warrantless searches were necessary under the Mine Act. Id. at 600. The certainty and regularity of the Act’s scheme provides an adequate substitute for a warrant because the Mine Act's regulation of the mining industry is “sufficiently pervasive” that the property owner “cannot help but be aware” that he will be subject to inspection. Id. at 600, 603-604. In Dewey, the Supreme Court reviewed the Secretary’s exercise of her powers under Section 103(a), which provides the Secretary with a right of entry for the purposes of inspections and investigations, including those made pursuant to Section 105(c), and approved the scheme of warrantless searches under the Mine Act. The Mine Act grants the Secretary an absolute right of entry when she exercises her investigative powers and a warrant is not required, even if the Secretary is seeking files other than those required to be maintained under the Act. See BHP Copper, 21 FMSHRC 758, 765 (July 1999). I find that the Secretary did not need to first obtain a warrant to access the requested personnel files.

Whether Privacy Concerns Prevented Disclosure of the Files

Employer Privacy Rights

Mine operators have a general expectation of privacy in their offices on mining property. Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45, 51, n.5 (S.D. Ohio 1973). However, the expectation of privacy that operators enjoy “differs significantly from the sanctity accorded an individual's home” and is adequately protected by the Mine Act’s statutory scheme authorizing warrantless inspections. Dewey, 452 U.S. at 598-599. Federal inspectors do not “intrude into any zone of privacy which the mine owners reasonably expect to remain inviolate.” Youghiogheny, 364 F. Supp. at 51. Further, the government’s interest in promoting mine safety arguably greatly outweighs any general interest a mine operator may have in privacy. Id. Any special privacy interests an operator may have are protected under the Mine Act’s scheme through the injunction provisions of the Act and the opportunity to contest a citation or order before the Commission prior to the imposition of sanctions. See BHP Copper, 21 FMSHRC at 767 (1999).

The company argues that it has a particular interest in safeguarding its employees’ private information because of its legal obligations under HIPAA and Kentucky law. As noted, HCC, citing Wheeler v. Sorenson, 415 S.W.2d 582 (May 1967), contends that employers in Kentucky have been sued by their employees for releasing employee personnel files. The Respondent’s argument is unpersuasive. Consent is not required under HIPAA for disclosures to public health authorities. 45 C.F.R. § 164.512(b)(i). MSHA is identified as a public health authority in the Department of Health and Human Service’s response to the comments to the HIPAA regulations published in the Federal Register. 65 Fed. Reg. 82,462, 82,624 (Dec. 28, 2000). Further, Wheeler is not applicable because it involved disclosure of employee information to other employees, not to a government agency. I conclude that while HCC has a general interest in the privacy of its personnel files and other records not required to be kept under the Mine Act, the Secretary’s interest in promoting miner safety through the rigorous enforcement of the provisions of section 105(c) outweighs that interest. I further find that HIPAA does not bar the disclosure of the records nor has HCC presented convincing evidence that it would be subject to suit for disclosing personnel files to MSHA.

Employee Privacy Rights

Whether HCC has Standing to Assert Employee Privacy Rights

HCC states that because disclosure of employee records would violate employee privacy rights it would not release records without its employees’ consent. However, I conclude that neither HCC’s privacy rights nor the rights of its employees are violated by the disclosure of information contained in personnel files to MSHA.

I find that HCC lacked standing to assert Gatlin’s privacy rights and I find that it is doubtful HCC had standing to assert the privacy rights of its other employees. I also find that consent was not required from Gatlin or from the other miners whose records the Secretary sought. Third party standing is determined based on the relationship of the litigant to the person whose rights the litigant seeks to assert and the ability of the third party to assert his own rights. Singleton v. Wulff, 428 U.S. 106, 113-114 (1976). First, HCC did not have standing to assert Gatlin’s privacy rights. During the discrimination investigation at issue, the relationship between HCC and Gatlin, who initiated the investigation by alleging HCC discriminated against him, was adversarial. Gatlin was capable of asserting his own privacy rights, but did not. HCC refused to grant Gatlin’s representative access to Gatlin’s file without his consent in an investigation that Gatlin himself initiated. The company’s actions were overly protective. HCC could not assert an employee’s privacy rights in a situation where the employee himself did not assert them.

Second, it is doubtful that HCC had standing to assert the privacy rights of its other employees. “Courts must hesitate before resolving a controversy . . . on the basis of rights of third persons not parties to the litigation” because the holder of the right might not want to assert it or might enjoy the right regardless of the outcome of the litigation and the third party himself is usually the best proponent of his own rights. Singleton, 428 U.S. at 114. The relationship between an operator and non-complainant miner employees in the context of a 105(c) discrimination case is ambiguous at best and their interests may conflict or align according to the facts of the case. HCC has presented no evidence its employees would have wanted their rights to be asserted. Granting an operator standing to assert the privacy rights of its employees could unreasonably delay the Secretary’s discrimination investigation. Inspector Smith credibly testified the 60 day investigation deadline is strictly adhered to by MSHA with limited exceptions. Delays caused by the assertion of employee privacy claims by employers could reduce the efficacy of 105(c) investigations and result in fewer 105(c)(2) cases. Moreover, the delays in the investigation of discrimination complaints would be contrary to Congress’ intent to swiftly investigate such complaints. The Mine Act’s Senate Report states that discrimination complaints are to receive “high priority” and that in order to “further expedite the handling of these cases” the Secretary must immediately petition the Commission for appropriate relief. S. Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978).

Whether Employee Consent is Required for Disclosure of the Personnel Files

I find that consent is not legally required prior to the disclosure of relevant information contained in personnel files to MSHA. Neither the Mine Act nor HIPAA require it. Further, permitting operators to condition disclosure upon consent where it is not legally required would burden the Secretary’s swift and efficient investigation of discrimination claims without resulting in any greater privacy protection for the employee. Redaction of files to remove non-relevant personal information provides employees with comparable protection without imposing any of the potential costs. Indeed, this is what is commonly done and what the Respondent in fact did prior to producing the requested personnel files.

Whether the Secretary’s Investigative Powers Enable Her to Request Personnel Files

HCC argues that not only did the Secretary violate the constitutionally protected privacy rights of HCC and its employees, she also exceeded her investigative powers under the Mine Act. In response, the Secretary contends Section 103(a) when read in conjunction with Section 103(h) grants her the authority to request personnel files pursuant to a discrimination investigation. Under section 103(a)(30 U.S.C. § 813(a)) the Secretary has the power to conduct investigations for, inter alia, the purpose of determining compliance with the requirements of the Mine Act. She argues that under section 103(h) she is entitled to files that are ‘reasonably required’ to enable her to perform her functions under the Act. 30 U.S.C. § 813(a). The Commission has stated that when the Secretary exercises her investigative powers under Section 103(a) she is not limited to receiving just that information the operator is required by regulation to maintain. BHP Copper, 21 FMSHRC at 766. In order to determine to what additional information the Secretary is entitled a Chevron analysis is useful. In BHP Copper the Commission outlined how to proceed:

[The first inquiry in statutory construction is] “whether Congress has directly spoken to the precise question at issue.” Chevron, 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 No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). If, however, the statute is ambiguous or silent on a point in question, a second inquiry, commonly referred to as a “Chevron II” analysis, is required to determine whether an agency's interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 n.2; Keystone Coal Mining Corp., 16 FMSHRC 6,13 (Jan. 1994). Deference is accorded to “an agency's interpretation of the statute it is charged with administering when that interpretation is reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency's interpretation of the statute is entitled to affirmance as long as that interpretation is one of the permissible interpretations the agency could have selected. See Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997), citing Chevron, 467 U.S. at 843; Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

BHP Copper, 21 FMSHRC at 764. The Mine Act is silent on whether the Secretary’s investigative power gives her access to employee personnel files. As a result, under Chevron II analysis, the next inquiry is whether the Secretary’s interpretation of sections 103(a) and 103(h) is reasonable. Section 103(a) states in pertinent part:

Authorized representatives of the Secretary . . . shall make frequent inspections and investigations in coal or other mines each year for the purpose of . . . (4) determining whether there is compliance with the mandatory health or safety standards or with any citation, order, or decision issued under this title or other requirements of this Act.

30 U.S.C. § 813(a).

Section 103(h) states in pertinent part:

In addition to such records as are specifically required by this Act, every operator of a coal or other mine shall establish and maintain such records, make such reports, and provide such information, as the Secretary . . . may reasonably require from time to time to enable [her] to perform [her] functions under this Act. (emphasis added).

30 U.S.C. § 813(h).

Section 103(h) provides the Secretary access to records, “In addition to such records as are specifically required by this Act.” It is clear from the text of the section Congress specifically intended for the Secretary to have access to more than just those files required to be kept under the Mine Act. Also, section 103(h) requires the operator to “provide such information as the Secretary . . . may reasonably require from time to time to enable [her] to perform [her] functions under this Act.” (emphasis added). One such function is the investigation of discrimination claims made by miners to determine whether there has been a violation of the Act.

            The requirements for establishing a prima facie case of discrimination under section 105(c) of the Mine Act are well-established. The complainant must demonstrate “(1) that [he] engaged in a protected activity, and (2) that the adverse action was motivated in any part by the protected activity.” Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). Circumstantial evidence of discriminatory intent includes: (1) knowledge of protected activities, (2) hostility or animus towards the protected activity, (3) coincidence in time between the protected activity and the adverse actions and (4) disparate treatment. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev. on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Typically, disparate treatment occurs when other employees guilty of the same or more serious offenses as the miner alleging discrimination escape his disciplinary fate. Chacon, 3 FMSHRC at 2512. The Mine Act should be construed liberally to effectuate the purposes of the Act and promote miner safety. Hanna Mining Company, 3 FMSHRC 2045, 2048 (1981), MSHA v. Westmoreland Coal Company, 606 F. 2d 417, 420 (4th Cir. 1979).

            Where the Secretary’s function is the evaluation of a discrimination claim, information that is relevant to assessing the merits of that claim, including evidence of protected activity, adverse action or discriminatory intent may be “reasonably required.” Such information commonly includes information related to company practices and procedures, information about the complainant’s disciplinary and work history, and information about similarly situated employees, all of which is often contained in personnel files. I find that the Secretary’s interpretation of sections 103(a) and 103(h) is reasonable and entitled to deference under Chevron II analysis. Accordingly, I find that the Secretary was entitled to the requested personnel files and that HCC violated section 103(a) of the Mine Act when it refused to provide the files.

Whether the 104(b) Withdrawal Order was Valid

            Relying solely on its reading of the Mine Act, HCC contends that 104(b) orders cannot be issued for violations where there is no “area affected.” I disagree. The Commission has not recognized this principle and a careful reading of the Mine Act does not support HCC’s interpretation of the Act.

Section 104(a) states in pertinent part:

“If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this Act has violated this Act, or any other mandatory health or safety standard, rule, order or regulation promulgated pursuant to this Act, he shall, with reasonable

promptness, issue a citation to the operator.”

30 U.S.C. § 814(a).

Section 104(b) states:

“If, upon a follow-up inspection of a coal or other mine, [the] . . . representative of the Secretary finds (1) that a violation described in a citation issued pursuant to subsection (a) has not been totally abated within the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the abatement should not be further extended, he shall determine the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine or his agent to immediately cause all persons, except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited form entering, such area until [the] . . . representative . . . determines that such violation has been abated.” (emphasis added).

30 U.S.C. § 814(b).

            It is clear from the language of section 104(a) that Congress intended to permit the issuance of citations under the section for not just violations of health and safety standards but also of any provision of the Act, including violations of section 103(a). Prior to the issuance of a 104(b) order the Secretary must find (1) that the violation cited under section 104(a) was not totally abated within the abatement period and (2) that the abatement period should not be extended. HCC incorrectly treats the following clause as an additional requirement, “[the representative] shall determine the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine . . . to immediately cause all persons . . . to be withdrawn from . . . such area until [the] . . . representative . . . determines that such violation has been abated.” This clause is separated from the clauses detailing the requisite findings by a comma, and in contrast, describes action to be taken. The precise meaning of the clause is unclear. The Secretary has interpreted the clause to mean that if the representative determines no area is affected she need not withdraw any miners and can issue a “no persons affected” 104(b) order. Section 104(b) applies to 104(a) citations issued for violations of the Act other than violations of health and safety standards. As a result, it may apply in situations where there is no area affected and there are no miners to withdraw. For these reasons I find the Secretary’s interpretation of the Mine Act to be reasonable and entitled to deference under Chevron II analysis.

         While the Secretary may choose to obtain the requested personnel files via an injunction (30 U.S.C. § 818(a)(1)), the Commission has stated that an injunction is not the exclusive remedy available to the Secretary when an operator refuses to produce documents requested pursuant to an investigation. BHP Copper, 21 FMSHRC at 766. The Secretary may choose to instead impose a citation and penalty. Id. I find that by imposing citations, an order and civil penalties for HCC’s failure to produce the requested documents the Secretary utilized enforcement mechanisms provided her by the Act, and I conclude that her choice to exercise these mechanisms was not improper.

Whether the Secretary’s Request was Unduly Burdensome

            HCC also argues that “[t]he request [was] unduly burdensome and tantamount to harassment in the overly broad, sweeping request for all files covering a five-year period.” HCC’s Mot. for Exped. of Proceedings 2 (emphasis in original). While such a request could potentially be burdensome there is no persuasive evidence in the record that HCC actually found the request to be so. Rather, Adelman testified that he did not believe MSHA was entitled to the documents and would not have provided them even if the Secretary’s request was modified. Although the Respondent claimed in its filings that providing the Secretary with the requested documents could implicate the files of over 500 employees, the search for the requested documents in fact took approximately five hours, and in addition to Gatlin’s file, four redacted files were ultimately produced. Tr.158.

Whether HCC had Fair Notice of the Secretary’s Interpretation of the Mine Act

            HCC contends it lacked fair notice the Secretary interpreted the Mine Act to give her access to personnel files when she exercises her investigative powers. I find HCC’s argument unpersuasive. The company was provided with notice of the Secretary’s interpretation when Carl E. Boone II, District Manager, sent its counsel, Marco M. Rajkovich, Jr., a letter dated February 23, 2009 requesting the personnel file of Gatlin and the personnel files of other similarly situated employees as part of MSHA’s investigation of Robert Gatlin’s discrimination claim. Notice was also provided through subsequent letters from MSHA reiterating its request. See Gov. Ex. 6, Gov. Ex. 8. In a letter dated March 20, 2009 Boone state that HCC still refused to “produceMr. Gatlin’s personnel file and the personnel files of any other employees who were terminated for the reason that Mr. Gatlin was terminated” and he “note[d] the repeated refusals of the company to provide documents and information to which MSHA is clearly entitled under the Act.” Gov. Ex. 8 (emphasis added). I conclude HCC had adequate notice of the Secretary’s interpretation.

                        SUMMARY OF FINDINGS AND ORDER

                        I have found that the Secretary was entitled to the personnel files requested by Smith during his investigation. In addition, I find that the Secretary rightfully exercised her discretion in issuing a 104(b) withdrawal order to HCC when it failed to abate the citation and that the initial citation, Citation No. 6694904, the 104(b) withdrawal order, Order No. 6694905, and the subsequent citation, Citation No. 6694906, are valid.

                        I have further found that the violations of section 103(a) alleged in Citation No. 6694904 and Citation No. 6694906 occurred. However, I conclude that Adelman honestly but mistakenly believed, in the face of the Secretary’s repeated requests, that production of the records was not required. Accordingly, I modify Citation No. 6694906 by changing the inspector’s negligence finding of “reckless disregard” to “moderate negligence.” The inspector found that there was no likelihood the violations would result in an injury or illness, and I agree. The violations were not serious.

            The parties stipulated at hearing that HCC is a large operator and the proposed penalties will not affect its ability to remain in business. The Secretary did not assess penalty points for a lack of good faith or decrease the assessed penalties for good faith abatement. I agree with the Secretary’s determination. Due to its mistaken belief that production was not required, HCC did not timely abate the cited violation. Accordingly, I neither reduce nor increase the penalties based on this criterion. The Secretary proposed a civil penalty of $112.00 for the violation alleged in Citation No. 6694904, and I assess that amount. She proposed a civil penalty of $436.00 for the violation alleged in Citation No. 6694906. However, the parties agreed the proposed penalty should have been $1,500.00 ($500 per day in daily penalties) for operating in the face of a withdrawal order, and the Secretary’s penalty petition was amended to reflect that fact. See Tr. 13 -14. Given that I have found HCC’s negligence to be moderate rather than reckless, I assess a reduced civil penalty of $1,050.00 ($350.00 per day) for HCC’s violation of section 103(a) and for its continuing operation in the face of a withdrawal order.

            For the reasons above I find that the contested citations and order were validly issued. Accordingly, they are AFFIRMED.

            It is ORDERED that Citation No. 6694906 be MODIFIED to reduce the degree of negligence from “reckless disregard” to “moderate.”

            The Respondent is further ORDERED to pay a civil penalty of $1,162.00 within 30 days

of this order. This decision resolves all issues with respect to the above-captioned contest and civil penalty cases. Upon receipt of payment the above-captioned cases are DISMISSED.

/s/ David F. Barbour

                                                            David F. Barbour

                                                            Administrative Law Judge

Distribution: (Certified Mail)

Theresa Ball, Esq.; Thomas A. Grooms, Esq.; Matt S. Shepherd, Esq.; U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

Gary McCollum, Esq., Hopkins County Coal, LLC, 771 Corporate Drive, Suite 500,

Lexington, KY 40503

Marco M. Rajkovich, Jr., Esq., Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517

/ca