What does this mean for operators going forward? The uncertainty created by these recent decisions makes formulating a response to similarly broad document requests difficult, particularly since both decisions are on appeal. At a minimum, the following precautions might be considered:

• Each request for non-required records and information should be carefully considered on a case-by-case basis to determine whether compliance with the request is “reasonably required” to enable the inspector to perform the functions required under the Mine Act.

• An understanding of the nature of the inspection/investigation should be developed.

• Requests for non-required records sought by MSHA should be reduced to writing and be specific as to what is sought, why, and the time frame for which the request pertains.

• Alternatives to providing the information in document form might be considered, such as providing a witness to summarize information.

• When in doubt, seek assistance from legal counsel. 

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.