Best practices for when MSHA requests documents

Most supervisors and managers in the mining industry have received some form of instruction in their overall training regarding how to handle a Mine Safety & Health Administration (MSHA) inspector’s request for documents.

That instruction usually involves a direction to promptly provide MSHA with any mandatory documents upon request, but requests for non-mandatory documents should be directed up the ladder for further review.

Mandatory documents are documents and records that are prepared pursuant to a specific regulatory requirement, including workplace exam records, pre-op reports and training records. Non-mandatory documents are pretty much everything else – internal reports, work orders and intra-company communications – and MSHA inspectors will frequently request such non-mandatory documents.

For instance, if an MSHA inspector observes a defect on a piece of equipment and then examines a work order from several weeks earlier identifying that defect – with no indication it has been corrected – then that work order entry will probably form the basis for an allegation of heightened negligence or even unwarrantable failure.

Understandably, operators are less than enthusiastic about turning over such materials.

Document preparation

With that said, operators’ reluctance to provide such documents has more to do with the fact that such documents are often misinterpreted and produce needless citation, litigation and cost.

In our practice, we have frequently seen the aforementioned work order scenario in which an MSHA inspector interprets the absence of any information in the “Actions Taken” section of the work order as meaning that no corrective action was taken.

In many cases, all it actually means is that personnel failed to complete their internal documentation and close out the work order. While not ideal from an internal recordkeeping standpoint, it is not illegal to have bad in-house paperwork.

So operators are right to be wary of such requests. Although every situation is different, many operators have a general policy of respectfully declining to release non-mandatory documents to inspectors. Over the past few years, however, this procedure has become somewhat more difficult due to a steady increase in inspectors basing their requests on section 103(h) of the Mine Act.

Section 103(h) states, in pertinent part, as follows: “In addition to such records as are specifically required by this Act, every operator of a [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 [the Secretary] to perform his functions under this Act.”

Many MSHA inspectors see this language as blanket authority for requesting internal documents. Operators, on the other hand, note that there is a key qualification that such requests be reasonable.

Past precedent

The watershed moment for section 103(h), from an inspection standpoint, was the 2013 Seventh Circuit decision in Big Ridge v. Federal Mine Safety and Health Review Commission. 

In that case, the appeals court found MSHA was authorized under Section 103(h) to request access to employee medical and personnel records in order to evaluate operator compliance with part 50 injury and illness reporting requirements. The request there was deemed to be reasonable because its scope was “tailored” to obtain only the information needed to verify compliance.

The broad concern after Big Ridge was that MSHA would immediately push the envelope to expand the reach of section 103(h). While there was no dramatic shift at that time, there has definitely been an increase in these types of requests lately. Requests for work orders and internal safety audits are just a few of the items that have been sought recently during inspections.

Operators need to make sure their line supervisors are prepared for the possibility that requests for non-mandatory documents will be made by inspectors under section 103(h). Inspectors should be asked to explain the statutory or regulatory basis for the request. The response could dictate whether the request is deemed reasonable and whether it needs to be challenged at a higher level with the help of senior management and counsel.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.