September 2003
A Document Primer
Do you have to produce any document when MSHA demands it? Generally no, but there are exceptions.
By Mark Savit
In counseling clients on MSHA and OSHA matters, one of the questions most frequently posed is whether certain documents must be given to MSHA immediately upon request. Luckily, there is a general rule you can follow; unluckily, it gets a little complicated in the details.
The general rule is that MSHA does not have the authority to demand that documents be produced immediately upon request unless the Mine Act or the regulations promulgated under it require that those documents: 1) be maintained; and 2) be made available to them. Under this general rule, for instance, you would have to make available to an MSHA inspector all records of workplace examinations conducted under 30 C.F.R. § 56/57.18002 or records of mobile equipment inspections conducted under 30 C.F. R. § 56.57.14100. The corollary to the general rule is that MSHA does not have the authority to demand that any other documents be made available upon demand. You need not produce production records, maintenance records, or personnel files, for instance, unless you consent to do so.
The reasoning behind these rules is fairly simple. First of all, MSHA can hardly cite you for failing to produce a document that you are not required to keep in the first place. There is no MSHA requirement that anyone keep maintenance, production, or personnel records (although there are numerous legal and business reasons to do so). Thus, a company that keeps such records should not be put at a regulatory disadvantage as against a company that does not. Also, although MSHA has extremely broad authority to inspect mines without a warrant, the Supreme Court has held that that authority is not unlimited and that operators have a right to protect their privacy interests. Allowing MSHA free reign to require that all documents be made available to them would infringe on that privacy interest and could render the Mine Act’s warrantless inspection provisions unconstitutional.
Of course there are exceptions. For instance, the Mine Safety and Health Review Commission has held that the home telephone number of an eyewitness to a fatal accident must be turned over to MSHA upon request. On the other hand, MSHA, after reviewing legal authorities cited by the operator, recently vacated that citation for a refusal to provide various documents (including an electrician’s log) in connection with an investigation into a fatal electrocution accident.
Three problems commonly arise that make this much more complicated than it seems based on the general rule:
Problem 1: If you formally challenge a citation or penalty, there is a pretrial process called “discovery” in which each side is required to produce any requested documents to the other side. Even if the MSHA inspector could not get documents during an inspection, MSHA’s lawyers can likely get them during a citation challenge. This raises the question: “If MSHA’s going to get my documents eventually, why refuse to turn them over now?”
Problem 2: Some of the documents that you don’t have to give MSHA may contain information favorable to your position, while others may contain unfavorable information. Should you turn over some, but not all? If so, how do you explain the partial response?
Problem 3: MSHA has been known to: a) threaten companies with the issuance of subpoenas; or b) issue citations for “impeding an investigation” if an operator fails to turn over requested documents even though there is no requirement that they be turned over. What risk, then, is incurred by refusing MSHA’s request in the face of such a threat?
See, I told you it was complicated.
There are several approaches to these problems, which may differ depending on what’s at stake. First, before you decide whether or not to produce the documents, you must carefully review the documents to determine the consequences of their production. If all of the information contained in the documents is favorable, you may wish to provide them. If not, you may wish to explore other options. In no case should you destroy, alter, hide, amend, bend, spindle, mutilate, or in any way change the documents once they have been requested. Should you decide to produce them, pay close attention to the guidelines below:
Second, it is important that you confirm the exact nature and scope of the document request. Often MSHA does not understand the document system at your mine, so it is important to make sure that you understand exactly which documents they want and the date ranges of such documents. If at all possible, MSHA’s document request should be in writing. Written confirmation will prove extremely useful in resolving any confusion that might arise about the scope of the original request and what was produced (or not).
Third, make sure you copy everything that was produced and retain the copy for your records. We also find it helpful to number the pages consecutively in order to make it easier to refer to various documents down the road.
We strongly recommend involving counsel in any decision to withhold all or part of the documents requested. Given the potential twists and turns that could arise from a refusal to produce documents, it is best to have objective counsel to evaluate potential advantages and disadvantages of any course of action. This is particularly true where legal privileges shield the documents from production.
Documents often form the basis for either defense or offense in legal proceedings. And their potential importance in future litigation requires care in their creation and management as well as in deciding to provide or withhold them.
Mark Savit is a partner in the Washington, D.C., law firm of Patton Boggs, LLP.
Operator Liable for Contractor’s Safety
ALJ upholds MSHA citations issued to a mine operator for a contractor’s defective equipment.
By Adele Abrams, Esq., CSMP
In a startling decision, Judge Manning has held that a mine operator can be held liable for defects on heavy equipment brought to the mine site, owned and operated by an independent contractor and its employees. In Twentymile Coal Company (ALJ, July 2003), the company challenged six citations issued related to two pieces of contractor equipment (a Ford 600 service truck and a CAT 627B scraper). The violations, which were conceded, involved equipment defects and problems with fire extinguishers. The issue before the judge was whether it was appropriate to cite both the contractor and the mine operator for the same violations under the circumstances present.
MSHA contended that the mine operator is strictly liable for all violations of the Mine Act that occur at the mine and that under its Program Policy Manual (PPM), the agency has discretion to cite both the contractor and mine operator. The theory was that the mine operator was in continuous control of the mine and thus had control over every vehicle and piece of equipment that entered its property. The mine operator admitted that it did not check contractor equipment when it entered the mine, although it did occasionally inspect such equipment if it was in an area being audited. The mine operator also contractually obligated its contractor to comply with all MSHA regulations and placed it on written notice of the need to conduct preshift examinations of mobile equipment.
Part 45 of MSHA’s PPM states: “Enforcement action against a production-operator for a violation(s) involving an independent contractor is normally appropriate in any of the following situations: (1) when the production-operator has contributed by either an act or by an omission to the occurrence of a violation in the course of an independent contractor’s work; (2) when the production-operator has contributed by either an act or omission to the continued existence of a violation committed by an independent contractor; (3) when the production-operator’s miners are exposed to the hazard; or (4) when the production-operator has control over the condition that needs abatement. In addition, the production-operator may be required to assure continued compliance with standards and regulations applicable to an independent contractor at the mine.”
Judge Manning noted that Commission case law provides the Secretary of Labor with “wide enforcement discretion” to proceed against an owner-operator, his contractor, or both. He held that MSHA did not abuse its enforcement discretion when citing Twentymile for the contractor’s equipment violations because the inspector believed that the mine had a serious problem with contractor violations and that the cited conditions were “rather obvious.” The judge also found that the citations issued fit within the first and fourth factors of the guidelines because Twentymile did not inspect the equipment or ensure that the contractor did so, and because Twentymile was able to order the contractor to remove the equipment from mine property after MSHA issued its citations — demonstrating control over the violative conditions. Twentymile’s lack of “follow-through” on the contract requirements was found to be an omission that contributed to the violations. The ALJ conceded, however, that none of Twentymile’s employees were exposed to the hazards created by the contractor. He affirmed MSHA’s proposed civil penalties of $900 for the six citations.
Diesel Update
Effective July 2003, MSHA began full enforcement of the metal/nonmetal diesel particulate matter (DPM) rule, including the interim 400 µg/m3 concentration limit (as measured by total carbon). However, on August 14, 2003, MSHA published a notice of proposed rulemaking to modify certain sections of the rule in accordance with terms of a settlement agreement in litigation surrounding the Clinton Administration standard. Specifically, MSHA is considering changing the surrogate for diesel particulate from total carbon (TC) to elemental carbon (EC). It also proposes permitting mine operators to use MSHA’s longstanding hierarchy of controls to meet the concentration limits, except for rotation of miners. The agency would also be permitted to consider economic, as well as technical, feasibility in order to determine if a mine operator should be granted an extension of time in which to satisfy the DPM limits.
MSHA has solicited more scientific data on the health effects of DPM, and the comment record will remain open until October 7, 2003. The agency will do a separate rulemaking to obtain comments and data on the appropriateness of the final concentration limit of 160 µg/m3 (TC) and whether to also use EC instead as a surrogate when the final limit takes effect.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.