When experiencing a Mine Safety & Health Administration (MSHA) inspection, the issuance of enforcement often depends on our ability to provide the right record to the inspector.
So, what is the right record or records? And how do we respond to document requests from the agency?
The answers to these questions depend on the request. There are some records required by the Mine Act to maintain and present to MSHA at request, such as the last 12 months of workplace exam records or a training plan under Parts 46 or 48. But these are not the limits of what MSHA can request.
While MSHA does not have the authority to issue subpoenas for documents during an inspection or investigation, the agency has broad discretion to request documents that it “may require from time to time to enable [it] to perform [its] duties under [the Mine Act],” per Section 103(h) of the Mine Act of 1977.
MSHA’s authority to request records is not boundless, but it can be relatively predictable based on the circumstances of the inspection or investigation. Let’s take a look at a few of the most common pitfalls for companies when faced with requests from MSHA involving training record requests.
For mining companies, the answer is simpler. Each new employee hired to work in mining operations is a miner and is required to receive either new miner training or newly experienced miner training. Mines need to be sure this training is provided and documented for each miner. If the record is not maintained or recorded properly, it can result in immediate removal of the miner from operations until training is completed.
Likewise, if training records are not provided to MSHA by the end of the shift during which they are requested, within reason, miners will be considered untrained and removed from operations until records can be produced.
For contractors, depending on how often the contractor employees work in the mining space, training may not be required. Each contractor should evaluate this when taking a contract with a mining company. The same requirements for training and documentation, and the potential liability and enforcement of failing to train or not documenting the training of miners, are the same as those of operators. Additionally, violations for failure to train, if not managed and contested properly, can serve as pre-qualification “red flags” for future mining work during the bidding process.
When developing task training programs and records, make sure to try to encompass all aspects of the work the miner will perform. If the miner is an equipment operator, make sure to document and train on all the specific types of equipment the miner will operate. That means not just a front-end loader, excavator or haul truck, but the specific makes and models. Note that MSHA requires miners to be trained and have a record of training on each model, even on different model years of the same make or model for which the miner received training previously.
For personnel working at the plant, consider if the person will perform maintenance in addition to other duties. If so, they should receive documented training specific to equipment that they may service, install, repair or rebuild.
Especially during an incident or accident investigation, if MSHA is scouring training records or any records, make sure to document what was provided to the agency and maintain a record of what was requested and provided.
Do not provide the agency with original documentation, and if originals are demanded for some reason and provided, ensure copies of every document provided to MSHA are maintained. Maintaining these historical records and resources can be a critical tool for defending against MSHA enforcement.
As we enter the winter months, many companies are preparing for annual refresher and task training. Be sure to evaluate your full training program and existing records to ensure they are up-to-date and adequate, and consider looking closely at task training programs and records to confirm these are comprehensive moving forward. Your ability to avoid MSHA enforcement may depend on it.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
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