MSHA’s Authority Under Big Ridge Is Broad, But It’s Not Unlimited.
We all know that MSHA possesses a tremendous amount of enforcement authority. For example, an MSHA inspector does not need a warrant to enter and inspect a mine at any time and without any advance notice. With the stroke of a pen, an MSHA inspector may order a mine operator to withdraw miners and equipment from a mine.
However, MSHA does not have subpoena authority. That mattered until 2013 when the Seventh Circuit Court of Appeals issued its decision in Big Ridge, Inc., et al. v. Federal Mine Safety and Health Review Commission. Before Big Ridge, MSHA was only entitled to “required records.”
After Big Ridge, MSHA was entitled to so much more. MSHA still doesn’t have subpoena authority, but it has no need for it. What have we learned about MSHA’s exercise of this authority over the last decade?
Background
By way of background, before Big Ridge MSHA was only entitled to review documents that a standard or the Federal Mine Safety and Health Act required mine operators to keep or maintain, e.g., records of MSHA required training, workplace examination forms, pre-operation mobile equipment inspection forms. The industry referred to these documents as “required records.” MSHA was not entitled to other documents like production reports, preventative maintenance records or work orders, i.e., “non-required” documents.
For example, if a mine operator conducted a compliance audit and prepared a written report documenting the auditors’ findings and recommendations, MSHA wasn’t entitled to that report. Of course, MSHA was free to request a copy of the audit report during inspection, but MSHA could not compel the operator to produce it.
How about near-miss reports? A foreman’s notebook? Work orders? Maintenance records? Those weren’t “required records,” so a mine operator wasn’t obligated to produce them to MSHA during an inspection.
Before Big Ridge, when MSHA requested copies of such documents, I advised clients to: (1) ask MSHA to put the request in writing (a handwritten note, email, etc. would suffice) so that everyone could be as certain as possible that we all knew what MSHA was requesting; (2) explain to MSHA that all requests for “non-required” documents must be reviewed and approved by the company and the documents reviewed for privilege, confidentiality, etc.; and (3) explain that the company would review the request and the documents and respond to MSHA as soon as possible.
In other words, I recommended that each request be reviewed and considered individually. Most of the time, clients ended up producing the documents that MSHA requested.
Working Well
For the first 35 years or so of MSHA’s existence, this approach worked quite well. The lines were clearly drawn and well understood. No doubt, the lines occasionally chafed and frustrated MSHA. MSHA is an agency. Like every agency, it occasionally complained that it lacked the authority and resources necessary for the task Congress directed it to perform.
That all changed in 2013, when the Seventh Circuit issued its decision in Big Ridge, Inc., et al. v. Federal Mine Safety and Health Review Commission. In Big Ridge, the court agreed with the Federal Mine Safety and Health Review Commission that “[t]he Act grants MSHA broad inspection and document review powers, including the power to ‘reasonably require’ mines to provide information that would enable MSHA to ‘perform [its] functions under this chapter.’”
The Seventh Circuit recognized that Congress did not provide MSHA with subpoena authority. However, according to the court, that didn’t matter. It explained that, “although the [Federal] Mine Safety [and Health] Act does not expressly refer to MSHA’s document review power as the power to issue an “administrative subpoena,” the authority the Act confers upon MSHA amounts to an administrative subpoena in substance.”
Since Big Ridge, MSHA maintains that it has a right to any document that it deems relevant to its inspection or investigation activities. MSHA inspectors will tell you that they have a right to virtually any document that they request. If a mine operator refuses or does not comply with an inspector’s request quickly enough, some will cite the operator for impeding the inspection or investigation.
Required Records
Big Ridge didn’t change my advice for responding to MSHA’s requests for “required records.” Operators should produce those documents right away.
As for “non-required records,” I advise clients to ask MSHA inspectors to put requests for those records in writing (a handwritten note or a quick email will work fine), explain that company policy is to review the requests and the records prior to production, etc. Then, if MSHA’s request is reasonable, per the Big Ridge standard, and the documents in question aren’t privileged, the documents are produced to MSHA.
What if an inspector is demanding that you produce a large volume of “non-required” records or documents, and the request just isn’t reasonable? What do you do if an inspector sets a deadline for the production that’s impossible to meet? What do you do if the inspector is threatening to cite you for impeding?
Those aren’t hypothetical questions. For example, during one investigation, an inspector threatened to cite me – the mine operator’s attorney – for impeding if my client didn’t produce a massive amount of information to him in 15 minutes. What happened in that case is what normally happens. I asked the inspector (politely) to put his request in writing, and I calmly explained what it would take to respond to the inspector’s request and why it would take a lot longer than 15 minutes.
I made it clear that we weren’t saying no or refusing to comply in any way, but there was no way to produce the documents he requested by the deadline he set. That lead to a more civil discussion about what he really wanted and when he actually needed it.
If it hadn’t gone that way – if he’d cited my client or cited me for impeding – we’d have contested the citation and argued that, under Big Ridge, his request wasn’t reasonable. We’d have had a great case too.
MSHA’s authority under Big Ridge is broad, but it’s not unlimited.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at
[email protected].