How Subtle Shifts in MSHA Practice Are Having a Big Impact
Operators and miners often say that “MSHA never changes.”
Blog
MSHA in Transition Mode as 2021 Nears Its End
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.
Nominee Announced to Become Head of MSHA
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.
Formulating a Game Plan for MSHA Special Investigations
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.
MSHA Unlikely to Issue Emergency Temporary Standard Requiring COVID-19 Vaccinations or Testing
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.
MSHA Unveils Proposed Powered Haulage Rule
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.
Recognizing the Signs of Ramped-Up MSHA Enforcement
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.
Where the Mining Industry Stands with MSHA—and What’s Ahead
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.
New Look at the Test for Discrimination Under the Mine Act
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.
Inspector General’s Findings Introduce New Pressures on MSHA Enforcement
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.
A Few Legal Considerations on MSHA’s COVID-19 Guidance
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.
Examining Flagrant and Reckless Mine Act Violations
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.
American Rescue Plan Act Signed: Details on the Latest COVID-19 Relief Package
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.
President Biden Appoints New FMSHRC Chair
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.
Eleventh Circuit Affirms Validity of MSHA’s 2017 Workplace Examination Final Rule
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.
Executive Order on COVID-19—Vague Regarding MSHA
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.
MSHA Annual Inflation Adjustment to Civil Penalties
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.
Anticipating a COVID-19 Emergency Temporary Standard in 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.
MSHA Announces Effective Date for Workplace Exam Rule Revisions
Due to a recent court decision, the Mine Safety and Health Administration (MSHA) has again revised its workplace examination rule, 30 CFR §§ 56.18002, 57.18002, undoing revisions made in 2018 and returning it to its original form as issued in 2017.
MSHA to Hold Public Meeting on Respirable Silica RFI
The U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced today that it would hold a public meeting on its recent Request for Information (RFI) on Respirable Silica (Quartz). That RFI, published on August 29, 2019, requests that stakeholders provide, by October 28, 2019, “information and data on feasible best practices” to protect miners from quartz in respirable dust.
Court Rejects MSHA’s Revisions to Workplace Examination Rule
Due to a recent court decision, metal/nonmetal mine operators are again facing the possibility of having to comply with two of the more onerous provisions of the Mine Safety and Health Administration’s (MSHA) workplace examination rule, 30 C.F.R. §§ 56.18002, 57.18002, as it was originally issued in 2017. Those provisions concern the timing of when the examination must be performed and what adverse conditions must be recorded on the examination record.
MSHA’s First Quarter Stakeholder Call Emphasizes Powered Haulage Training and Showcases Improvements to Mine Data Retrieval System
The Mine Safety and Health Administration (MSHA) held its quarterly stakeholder call on May 2, 2019. MSHA began the discussion by reviewing the five fatalities that occurred in the first quarter of 2019. The agency then discussed best practices to prevent injuries in the event of a mobile equipment fire and reviewed upcoming training opportunities.
MSHA Tests New Informal Conference Process
The Mine Safety and Health Administration (MSHA) has begun a three-month pilot project to see if the agency and operators can reach a final resolution regarding citations at the informal health and safety conference stage.
Federal Mine Safety and Health Review Commissioners Confirmed
The Federal Mine Safety and Health Review Commission is back in business as it will soon have a quorum again to decide cases. The Commission plays an important role in mine safety and health law. The Commission establishes precedential case law when it decides appeals of administrative law judge decisions in Mine Safety and Health Administration (MSHA) cases, including citation contests and discrimination cases.
Unions Challenge MSHA’s New Workplace Exam Rule for Metal and Nonmetal Mines
On March 12, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Mine Safety and Health Administration, USCA Case No. 18-1116.
MSHA Weighs in on the Future of Autonomous Mining Equipment
The safety and health committee of the Nevada Mining Association (NMA) recently met with top Mine Safety and Health Administration (MSHA) officials to discuss the safety of Nevada’s underground and surface metal/nonmetal mining operations.
MSHA’s First Stakeholder Call for 2019 Focuses on Large Mobile Equipment Safety and Dust Enforcement
On January 24, 2019, the Mine Safety and Health Administration (MSHA) held its first Quarterly Stakeholder Call of the year.