Mining Matters

Employers are faced with unexpected challenges every day. Frequently, the ability to conduct a timely and effective internal investigation will be the difference in managing and responding to situations as they arise. This month, Arthur and Chris welcome Erin Gibson Allen, an attorney and member of Fisher Phillips Workplace Investigations Practice Group to discuss the importance of workplace investigations, how to prepare for them before an incident occurs and how best to execute them when the need arises. The wide-ranging discussion includes specific points for safety and health and offers tips based on experience in the field.

Among the unique features of the Mine Act is the authority for MSHA to pursue both civil and criminal liability against individuals in their capacity as managers. But to get to that point, MSHA will engage in an in-depth investigation triggered by an elevated enforcement action against the company. In this episode, Arthur and Chris review Section 110 of the Mine Act, which authorizes personal liability, and how application of that law looks in the real world. They offer practical pointers for preparing for a 110 investigation, managing the investigation once it begins, and how to handle to possible outcomes that may result.

In a time of uncertainty within the federal government, mine operators can continue to expect regular MSHA inspections. MSHA is statutorily required to inspect all surface mines twice per year and all underground mines four times per year. That won't change despite other major changes that may occur within federal agencies. With that in mind, this month's episode of Mining Matters goes back to basics and discusses how mine operators can best position themselves for successful MSHA inspections. Arthur and Chris offer an explanation of key legal concepts that come into play during inspections and practical pointers that come from years of experience.

The new year has brought with it a new administration and changes are on the horizon for all federal agencies, including MSHA. But what can mine operators reasonably expect from the new regime? In this episode, Chris and Arthur offer their thoughts on what may and may not change from MSHA in the new administration. They also offer tips on what to look for in 2025 as new leadership at the agency takes shape.

A mine operator who inadvertently misses the deadline for contesting a proposed penalty assessment is not without recourse. To proceed with a contest after a missed filing deadline, the operator must first file a Motion to Reopen Proceedings with the Review Commission. Upon a showing of good cause that the contest date was missed due to “mistake, inadvertence, surprise or excusable neglect,” the Review Commission may grant the Motion and allow the case to proceed. Historically, the Review Commission has typically granted these Motions when such a showing is made. Recently, however, a trend has developed where the Department of Labor solicitors are opposing many Motions to Reopen and the Review Commission is denying more than ever.  In this episode, Arthur and Chris discuss the basics of Motions to Reopen and how obtaining relief via such Motions has become more difficult of late. They also offer practical tips on how to avoid needing to file a Motion to Reopen in the first place and how to best position yourself for success if the need to file a Motion arises.

Earlier this year, the Supreme Court issued a bombshell of a decision in Loper Bright Enterprises et al. v. Raimondo, overturning the longstanding Chevron standard for interpreting ambiguous statutory terms. But while the Court relegated Chevron to the dustbin of history, it did not offer a roadmap for how statutory interpretation will look going forward.  While all of this may seem academic, it has significant practical implications for mine safety. In this episode, Chris and Arthur discuss the Loper Bright decision and offer their thoughts on what this may mean in the area of mine safety going forward.

In this episode, Chris and Arthur discuss one of the discretionary tools in MSHA's toolbox: impact inspections. Although not new, impact inspections have made a comeback recently with the current MSHA regime. While MSHA is authorized to conduct impact inspections at any time and at any mine, if unprepared, an operator facing an impact inspection could find itself in a precarious position. This episode reviews what an impact inspection is, what steps MSHA may legally take, and what safeguards it must afford mine operators. It also discusses how operators can best prepare in case this surprise event becomes a reality.

For the past two years, the Mining Matters podcast has welcomed Raeann Burgo, a partner in Fisher Phillips' Pittsburgh office, to discuss mental health in the workplace and how mine operators can put steps to promote mental well-being into action. These episodes are among our most downloaded in the podcast's history. This year, Arthur and Chris welcome Raeann back to provide an update on mental health in the workplace, with particular emphasis on safety and health. They also discuss some new resources offered by both OSHA and, for the first time, MSHA, in the area of mental health. The group continues to provide actionable steps that employers can put into practice in their workplace.

The Mine Act contains a robust whistleblower provision that affords certain rights to miners and prohibits certain actions by employers. But like all laws, Section 105(c) contains specific nuances. In this episode, Arthur and Chris will review Section 105(c) of the Mine Act and discuss each element of a whistleblower claim. They will also discuss what it looks like in real life when a whistleblower claim is filed and investigated. Finally, they will offer practical tips for employers to be mindful of considering this important legal provision.

Among MSHA's most onerous requirements is that mine operators must report an “injury with a reasonable potential to cause death” to the agency within 15 minutes. But, what is an “injury with a reasonable potential to cause death?” Neither the Mine Act or MSHA's regulations provide any definition. And caselaw points in different directions. A recent Review Commission decision, where the Commissioners split 2-2 in result, highlights this uncertainty. In this episode, Arthur and Chris review the law surrounding the immediate notification requirement, discuss the recent Review Commission decision, and offer tips for operators to navigate this confounding but critical requirement.

MSHA released its long-awaited rule on surface mobile equipment just before the end of 2023. The rule, which applies to both the coal and metal/non-metal sectors, will require operators to develop safety programs on surface mobile equipment, designate responsible persons to oversee those programs and update them at least annually. Operators can expect MSHA inspectors to review their programs during regular inspections. In this episode, Chris and Arthur review the particulars of the new rule and offer insights as to what it may look like in practice. They also offer tips for operators to prepare for the rule's implementation both for the July 19 compliance date and for ongoing compliance after that.

In early December, MSHA released its mine safety data for FY2023, ending September 30, 2023. The data includes a look at the number of mines and miners, as well as enforcement trends and accident and injury numbers. MSHA also provides a 7-year look back for similar information. What does all this data mean? In this episode, Chris and Arthur decipher these numbers and discuss these numbers and how this data compares to recent years, as well as current mine safety and health industry trends. Finally, in addition to MSHA's numbers, Fisher Phillips's MSHA Violations Tracker includes a comprehensive dataset of violations that have occurred since January 1, 2022 as reported by the Department of Labor.

In this episode, Arthur and Chris welcome a special guest, Joseph Riney, Vice President of Operations at the Nevada Mining Association to discuss how the association works to represent its members' interests in public policy and mine safety. The group discusses a wide range of issues, including educating Nevadans about the mining industry, the current state of mine safety policy, and developments that may be on the horizon. The group also considers how mine operators can take part in their own state associations, participate in the rulemaking process, and monitor new policy initiatives as they unfold. This lively discussion emphasizes the impact that these developments have on the day-to-day work toward mine safety throughout the state of Nevada and the country.

The D.C. Circuit Court of Appeals issued its long-awaited decision regarding whether MSHA has jurisdiction over a trucking company's facility that exists off mine property. And while many expected the Court to provide meaningful guidance on MSHA's jurisdictional reach to non-mining companies and non-mine locations, the Court's decision actually answers very little. Instead, the Court asked MSHA to further consider certain issues, presumably setting up a second round of litigation. In this episode, Arthur and Chris discuss the important jurisdictional issues in the case, the significance of the Court's decision and what we can expect going forward.

With publication of MSHA's long-anticipated proposed silica rule, Chris and Arthur discuss the process of rulemaking that results in new regulations. They discuss the legal framework put forth by the Administrative Procedure Act and how that process plays out in the real world. Finally, they discuss the opportunities for interested parties to participate in the rulemaking process and why it is so important that they do.

Training is among the primary responsibilities that mine operators face. MSHA's regulations include a number of necessary trainings, with substantive requirements for each. Beyond MSHA, it is incumbent upon mine operators to provide the best training they can so that miners are working safely. The issue of training has taken on an even greater focus of late, both due to challenges of newer workers in the workforce and MSHA points of emphasis. This month, Arthur and Chris welcome DJ Schmutz and Jenifer Padgett from MSHA Safety Services to discuss all things training, including regulatory requirements, ongoing challenges, and best practices to provide the most useful training for your workforce.

May is Mental Health Awareness Month and following up on the success of last year's episode on Promoting Mental Wellbeing in the Workplace, our team is back to bring practical steps to mine operators. This month, Chris and Arthur welcome back our colleague Raeann Burgo to offer her expertise on workplace mental health. We review why promoting health is so important in the mining industry and offer a practical roadmap mine operators can take to support their employees in this important area.

In this episode, Arthur and Chris welcome a special guest, Paul Krivokuca, Vice President of Health and Safety at National Mining Association to discuss how policy-level developments in Washington, DC related to mine safety. The group discusses a wide range of issues, including the current state of mine safety policy, developments that may be on the horizon and how mine operators can take part in the process as new policy initiatives unfold. This lively discussion emphasizes the impact that these developments in D.C. have on the day-to-day work toward mine safety throughout the country.

As our MSHA team discussed in our new year prediction insight, the Mine Safety and Health Administration appears to have found its footing – and that means mine operators need to be on their toes in 2023. After a presidential administration change, retirements throughout the inspector ranks, and an anemic regulatory agenda, MSHA now appears to be pointed in a new and more robust direction. What do we expect to see in the new year? During this episode, Chris and Arthur discuss their best estimation on the five most likely agency actions and changes that operators can expect in 2023 in key areas including the regulatory agenda, enforcement, and policy.

This episode is Part Two of a two-part series discussing conferencing and the settlement process. Did you know that once you reach a settlement with a Conference Litigation Representative or Solicitor, it has to be approved by an Administrative Law Judge? The issue of settlement approval has been the subject of cases before the Review Commission for a number of years, and several more cases are currently pending. Chris and Arthur discuss the approval process and inform operators of what they should be aware of to get approval for a settlement agreement, including best practices for providing good information that justify terms of a settlement agreement. They also discuss trends in caselaw on the topic of settlement approval and what it means for operators going forward.

In this episode Arthur and Chris discuss the MSHA conferencing process under 30 C.F.R. Part 100. While it can be a mystery at times, they describe the basics of the process and what operators can expect when they seek to informally discuss a citation or order with MSHA. Arthur and Chris begin by outlining the requirements of requesting a conference and provide useful insight for what to include in a conference request. They then discuss some best practices to increase your chances for a successful outcome and alert operators to some common pitfalls to avoid. Sit back and enjoy learning about the MSHA conferencing process!

For every contested MSHA citation, mine operators and their attorneys work hard to put the best case forward to tell the company's side of the story. But in that same case, an attorney for the Department of Labor's Office of the Solicitor is doing his or her best to show why the inspector was correct. In this episode, Arthur and Chris welcome their Fisher Phillips colleagues Matthew Korn and Patrick Dalin, both of whom began their legal careers litigating mine safety cases on behalf of MSHA. The wide-ranging discussion includes how MSHA cases are prioritized within the Solicitor's Office, how MSHA's attorneys build a case, and how the agency and its attorneys approach settlement. Matthew and Patrick also offer unique insights from the government's perspective on how mine operators can best position themselves for a successful outcome in litigation.

The Mine Act requires that conditions cited by an MSHA inspector be abated within a reasonable time. But who determines what is reasonable and what happens if abatement cannot be achieved in that time? In this episode, Arthur and Chris tackle the issue of abatement of cited conditions under the Mine Act. They discuss what the law requires, what operators may see from inspectors and how best to navigate difficult situations related to abatement. Finally, they discuss what legal recourse operators may have if disagreements cannot be resolved.

What are the similarities and difference between OSHA and MSHA? How should a company that operates at both OSHA and MSHA regulated sites prepare? In this episode, Fisher Phillips' OSHA-focused podcast, Toolbox Talk, and MSHA-focused podcast, Mining Matters, join forces to compare and contrast the two agencies. Curtis Moore provides an overview of the OSHA regulatory scheme and how companies can best prepare for an OSHA inspection. Chris Peterson and Arthur Wolfson do the same for MSHA. The group then follows with a lively discussion comparing the key points for each and offers insights for how companies regulated by both agencies can best prepare.

In this episode, Chris and Arthur discuss Fisher Phillips' brand new MSHA inspection tracker. Chock full of data, this new tool will provide operators a glimpse of recent MSHA activity. Chris and Arthur discuss the different types of data the tracker includes and how operators may be able to spot compliance and enforcement trends from the information provided. They also discuss how they hope to use the data to provide compliance strategies based on what the trends are showing. View the tracker here: https://www.fisherphillips.com/innovations-center/msha-tracker.html

On this episode of Mining Matters, Arthur and Chris discuss recent developments regarding the issue of advance notice of MSHA inspections, particularly in light of a key Circuit Court decision. They review what advance notice has been thought to be and how the recent 6th Circuit Court of Appeals decision might have changed the calculus. Finally, they review what operators should consider to best train their workforce and avoid issues related to advance notice.

In this episode, Arthur and Chris are joined by mine safety consultant and former MSHA official Diane Watson for a wide-ranging discussion on mine safety and compliance – where it has been, where it is now, and where it will be.  The group discusses how mine safety has changed over the years and what has remained a constant.  Join the team as they forecast MSHA activity in the years to come and what operators can do to prepare.  

MSHA recently unveiled a new initiative, “Take Time/Save Lives” that focuses largely on training and “task awareness.”  Although policy initiatives such as this are not binding as law, they can provide an insight into the Agency's priorities and what mine operators can expect going forward.  In this episode, Chris and Arthur review the “Take Time/Save Lives” initiative and offer their take on its potential significance and how mine operators can best prepare for what may come of it.

In this episode, Arthur and Chris welcome a special guest, attorney Raeann Burgo, and discuss another important safety topic – mental health in the mining industry.  The team talks about what mental illness is, how it affects the safety and productivity of the workforce and what mine operators can do to promote mental wellbeing in their workplaces, particularly in the absence of any guidance or resources from MSHA.  The discussion also includes some steps mine operators can take right now to address this significant issue in the workplace.

As mine operators are well aware, MSHA wields significant authority during an inspection. But operators that prepare to actively participate in an inspection will best position themselves during that process. In this episode, Arthur and Chris discuss some best practices for operators when interacting with an MSHA inspector during an inspection. They will also discuss what types of information company representative should look to gather and share their experiences in how that information can lead to positive results during the settlement and litigation process.

Does the world of mine safety provide the background for a compelling fiction novel? In this episode, Arthur and Chris talk with special guest, Tim Means, a long-time mine safety attorney about his new novel “Copper Canyon,” a fast-paced story centered in the world of mine safety. Mr. Means discusses how he began practicing mine safety and what issues he saw in his practice that inspired him to author a novel centered upon the mining industry and highlighting the delicate balance of safe operations and compliance with federal mine safety regulations. 

Most operators aware of MSHA's Proposed Rule on mobile and powered haulage equipment at surface mines and surface areas of underground mines for both metal/non-metal and coal.  We encouraged operators and trade associations to file comments regarding the rule – and they did!  This podcast episode discusses the rulemaking process and what to expect in a final rule now that MSHA has over 40 comments on the proposed rule.  We evaluate some of the more significant comments to the proposed rule and even drop a quick update regarding the nomination of an Assistant Secretary of Labor for MSHA.

In the first episode of Mining Matters, Chris Peterson and Arthur Wolfson introduce the new podcast and discuss their goals for bringing timely mine safety insights to the audience.  Chris and Arthur talk about their own experiences in the mine safety legal world, which had shaped their perspectives on issues they face. Finally, they discuss what to expect from MSHA in these times of change and give an overview of issues surrounding enforcement, rulemaking and litigation that may impact the regulated community.

Welcome to Mining Matters, a new podcast about the latest and greatest in mine safety from Fisher Phillips. Join us monthly to discuss topics such as the new power haulage rule, basics of mine safety law and hear from some amazing guest speakers who are well known in the MSHA industry.  Fisher Phillips partners Arthur Wolfson from our Pittsburgh office and Chris Peterson from our Denver office will be our lively hosts – they are both members of our MSHA and Workplace Safety practice groups and have significant experience representing mining and industrial clients and helping them navigate compliance challenges.