Aggregates Manager Digital Magazine
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It is noteworthy that an MSHA investigator may or may not accept redactions, and this concept of privacy is one frequently subject to protective orders negotiated or ruled upon in the dis- covery process in litigation, not in the field during an inspection. Moreover, MSHA cannot guarantee the ultimate non-disclosure of records obtained during an investigation if a Freedom of Information Act request is made of the government file by any person. However, the scope of MSHA's authority to obtain docu- ments and information not required to be maintained under the Mine Act may become a moot question as advocates for proposed new mine safety legislation have repeatedly requested subpoena authority to bolster MSHA's inspection and investiga- tion power. As Commissioner Duffy noted in his dissent in Pea- body Midwest Mining, LLC, one of the problems MSHA has with its current "ad hoc" approach to document and information requests is that, without notice, the opportunity to comment, and a structured protocol applicable to all operators, the tactic of seeking non-required records by individualized letter requests violates due process rights. In any new mine safety legislation, Congress could very well take note of Commissioner Duffy's dissent and mirror the Occupational Safety and Health Admin- istration's subpoena power and the safeguards inherent in its subpoena process, such as requiring the agency to consider rele- vance, scope, and authority, while also affording an operator the ability to move to quash in a readily provided forum — without being subjected to enforcement actions and penalties. What does this mean for operators going forward? The un- certainty created by these recent decisions makes formulating a response to similarly broad document requests difficult, par- ticularly 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 "reason- ably required" to enable the inspector to perform the func- tions required under the Mine Act. • An understanding of the nature of the inspection/investiga- tion 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. AM Write 157 on Reader Service Card or visit www.AggMan.com/info Tecweigh_AGRM0812.indd 1 AGGREGATES MANAGER September 2012 7/17/12 10:46 AM 51