Although enforcement has not yet been pursued in connection with Mine Act violations, the Department of Labor is familiar with the application of the statute in the OSHA context. In 2009, as part of a multi-count criminal indictment, a company and one of its managers were charged with “altering the condition of a cement mixer and concealing from the [OSHA] inspectors that they had bypassed a safety device designed to shut down the cement mixer when its doors were opened, which led to the amputation of three of an employee’s fingers” [U.S. v. Atlantic States Cast Iron Pipe Co., 612 F. Supp. 2d 453, 512 (D. N.J. 2009)]. The company manager in question was sentenced to 70 months in federal prison for his obstruction of justice and other crimes, and the company was placed on monitored probation and assessed an $8 million fine. Similarly in the MSHA context, were a mine employee to alter or destroy relevant pre-shift examinations, training records, or other documents to be provided to MSHA, that employee could face enforcement under § 1519.

The accurate completion of records has always been a requirement under the Mine Act, and we often take for granted the fact that individuals know that the falsification or wrongful destruction of records is not acceptable. However, in the few instances in which we have had to assist companies or individual employees accused of making false statements or falsifying records, more often than not, these circumstances have arisen where an individual acted out of panic and without thinking about the possible criminal consequences of their actions.

Accurate recordkeeping and the proper maintenance of records should be second nature to your employees, and it can only become second nature if the responsibility for accurate recordkeeping is emphasized as part of regular training and employees are disciplined for failure to comply with policies and expectations set forth by the company. Accordingly, all individuals responsible for completing, compiling, collecting, or preserving documents to be provided to MSHA should be aware of the far-reaching implications of § 1519, as well as potential criminal violations under the Mine Act itself.

Remember the first rule of responding to any investigatory request for information: you have only two options — respond truthfully or don’t respond at all. AM

Marci M. Fulton is an associate at Patton Boggs LLP’s Denver office. She may be reached via phone at 303-894-6121 or via e-mail at mfulton@pattonboggs.com.