On September 9, 2015, then U.S. Deputy Attorney General Sally Quillian Yates issued a memo, “Individual Accountability for Corporate Wrongdoing,” that sent shivers down the spines of those in the workplace safety community.
The Mine Safety and Health Administration (MSHA) recently announced that it is implementing a silica enforcement initiative focused on reducing exposures to respirable crystalline silica.
On the Mine Safety and Health Administration’s (MSHA) website, there is a notice about an enhanced enforcement program focused on mine operators’ responsibilities that aims to reduce accidents, injuries, and fatalities for contract and customer truck drivers, as well as managers and supervisors performing mining work.
Several years ago, we helped a mine operator through a difficult accident investigation. During the investigation, a toxicology report was received that indicated the presence of a narcotic in the victim’s bloodstream. There was a great deal of debate with the Mine Safety and Health Administration (MSHA) about whether the amount identified could have impaired the victim’s motor skills and judgment, possibly contributing to the accident.
While the Mine Safety and Health Administration (MSHA) continues to work on developing a new crystalline silica standard (that is expected to cut the exposure limit in half), the agency has decided to ramp up enforcement of operator silica compliance with the requirements that are already on the books.
The U.S. Senate has confirmed Christopher Williamson as assistant secretary of labor for mine safety and health (MSHA). Williamson takes the helm at MSHA at a time when the agency is adding personnel and undergoing organizational changes.
Operators and miners often say that “MSHA never changes.”
Two words sum up where the Mine Safety and Health Administration (MSHA) is as 2021 comes to a close and mine operators prepare for 2022: transition period.
On November 12, 2021, the White House announced the nomination of Christopher Williamson to become the assistant secretary of Mine Safety and Health. If confirmed by the U.S. Senate, Williamson will become the top leader of the Mine Safety and Health Administration (MSHA), filling the position that has remained vacant since David Zatezalo resigned at the end of the Trump administration.
Although it is too early into the Biden administration to prove statistically, there is, nonetheless, anecdotal evidence of an uptick in Mine Safety and Health Administration (MSHA) special investigations under section 110(c) of the Mine Act.
In a September 28, 2021 Mine Safety and Health Administration (MSHA) stakeholder meeting, Deputy Assistant Secretary for Policy Jeannette J. Galanis stated that MSHA does not intend to issue an emergency temporary standard (ETS) requiring COVID-19 vaccinations or testing of miners. Instead, MSHA will continue to rely on its COVID-19 guidance to mine operators and existing statutory and regulatory enforcement capabilities.
On September 8, 2021, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced its proposed powered haulage rule for surface mines and surface areas of underground mines. The proposed rule, which is open to public comment through November 8, 2021, will be set out at a new 30 C.F.R. §§ 56.23000–23004; §§ 57.23000–23004; and §§ 77.2100–2104 (surface coal). The proposed rule would require mine operators with six or more miners to develop and implement a written powered haulage safety program.
One of the first things that comes to mind when a mine operator evaluates the ramifications of having received a citation is how much the resulting civil penalty might be. That is certainly a valid concern, but the penalty is only part of the story. The Mine Safety and Health Administration’s (MSHA) enforcement powers go far beyond imposing monetary penalties as punishment for a violation or as an inducement to come into compliance.
It has been more than five months since President Biden took office, and while there is still a lot to learn about the prospective enforcement focus of the Mine Safety and Health Administration (MSHA), some priorities have become clearer.
The Ninth Circuit Court of Appeals recently took a fresh look at the test for discrimination under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), issuing a decision that could signal a major shift in the way Mine Safety and Health Administration (MSHA) discrimination cases are litigated.
The U.S. Department of Labor’s Office of Inspector General (OIG) found “significant weaknesses” in the Mine Safety and Health Administration’s (MSHA) overall management of the process of issuing, terminating, modifying, and abating violations, according to a recent OIG audit.
On March 10, 2021, nearly one year into the pandemic in the United States, the Mine Safety and Health Administration (MSHA) issued its first comprehensive guidance addressing COVID-19 protections for mine sites.
In a 2–1 decision on January 21, 2021, the Federal Mine Safety and Health Review Commission (FMSHRC) shed additional light on what is and is not a flagrant violation of the Mine Act.
On March 11, 2021, President Joe Biden signed into law the American Rescue Plan Act of 2021—a $1.9 trillion economic relief package. While the legislation marks the first major legislative victory for President Biden and the administration, it is the sixth federal legislative relief package aimed at addressing the COVID-19 pandemic and its economic fallout. The legislation continues some programs established in these previous efforts, but it also adds some important components. Set forth below are some of the major provisions of the American Rescue Plan Act.
On January 20, 2021, President Joseph R. Biden Jr. appointed Commissioner Arthur R. Traynor III to serve as chair of the Federal Mine Safety and Health Review Commission (FMSHRC). Traynor replaces former mine industry lawyer Marco M. Rajkovich Jr., who had been chair since his appointment to the FMSHRC in 2019.
In a challenge to the U.S. Department of Labor’s Mine Safety and Health Administration’s (MSHA) 2017 final rule expanding the workplace examination requirements at 30 C.F.R. §§ 56.18002 (Surface) and 57.18002 (Underground), the U.S. Court of Appeals for the Eleventh Circuit found that the final rule had been promulgated and issued appropriately and denied the petition for review.
On January 21, 2021, President Joseph R. Biden Jr. signed an executive order directing the U.S. Occupational Safety and Health Administration (OSHA) to take certain actions to address worker safety and health with regard to COVID-19. The executive order says much less about what the U.S. Mine Safety and Health Administration (MSHA) should do with respect to mining worksites, largely leaving it to MSHA to set its own course in addressing the pandemic.
Annually in mid-January, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) adjusts its civil penalty assessments, in accordance with the inflation adjustment provisions of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015. This year the adjustments resulted in the following increases in minimum and maximum civil penalties for certain types of citations and orders. These new penalties affect violations for which the penalty is assessed after January 15, 2021.
A contentious issue during the recent presidential campaign was the Trump administration’s handling of the COVID-19 pandemic. No matter where one fell along the spectrum of supporters and critics, there was no denying the wide gulf of positions on the topic.
