Supreme Court Keeps Auer, but Dilutes Its Power

On June 26, 2019, in Kisor v. Wilkie, the Supreme Court of the United States declined to overrule its prior decisions in Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). These cases introduced the practice of judicial deference to a federal agency’s interpretation of an ambiguous regulation. Many courts and scholars criticize Auer deference for various reasons and believed that the Supreme Court’s decision in Kisor would overrule Auer. Instead, the Court upheld the longstanding precedent, but imposed new “guidance” on when to apply Auer deference.

Supreme Court Places Another Limitation on Chevron Deference

The justices of the Supreme Court of the United States have again limited the reach of Chevron deference. On May 28, 2019, the Court in Smith v. Berryhill carved another exception into what has lately proven to be its least-favored precedent. It held that Chevron deference does not apply to the scope of judicial review.

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 Issues New Workplace Exam Proposed Rule

The Mine Safety and Health Administration (MSHA) announced today that it was issuing a notice of proposed rulemaking that will amend the Workplace Examination regulation at 30 C.F.R. § 56.18002 (Surface) and § 57.18002 (Underground).  The amended regulation, “Examinations of Working Places in Metal and Nonmetal Mines,” will add new recordkeeping and training requirements for operators that will potentially expand enforcement liability for supervisors on mine property.

Here We Go Again—The Robert C. Byrd Mine Safety Protection Act

For the fourth time since the Upper Big Branch coal mine explosion in April 2010, a Congressional bill proposes to further amend the Federal Mine Safety and Health Act of 1977. The Robert C. Byrd Mine Safety Protection Act was first introduced on December 3, 2010, and again on April 15, 2011, and March 21, 2013, without variation in the proposed law and without success. Congress has historically enacted legislation after major coal mine disasters. In the early days, there was relatively little regulation, but over the years legislation has led to strong controls and enforcement.

Supreme Court Decision Opens Door for MSHA to Revise Prior Interpretations of Regulations

A recent decision issued by the Supreme Court of the United States in Perez v. Mortgage Bankers Association could allow the Mine Safety and Health Administration (MSHA) to revise longstanding interpretations of regulations without formal rulemaking. On March 9, 2015, a unanimous Court struck down the Paralyzed Veterans doctrine requiring agencies to utilize notice-and-comment rulemaking for new rule interpretations varying significantly from previous interpretations.

Miners Can Prevent Fatal Accidents

With a momentary lapse of attention, any of us can cause a grave accident––at home, in a vehicle, on vacation, or at work. Miners must be ever vigilant for their own safety and the safety of others. The mining industry can reduce fatalities and injuries by encouraging employees to identify, correct, and report hazardous conditions. That is the current message of the Mine Safety and Health Administration (MSHA). Another message is that miners are legally protected for engaging in such safety activities, and retaliation by “any person” will be prosecuted.