As the country prepares for the beginning of federal regulation under President-Elect Donald Trump, the mining industry is presented with many unknowns regarding how federal enforcement will evolve from the aggressive inspections and higher penalties of the Obama Administration. While the expectation is that enforcement will decrease under the more business-friendly government, mine safety has historically been an enforcement area furthered by Republicans and Democrats alike.
Without knowing who will run MSHA, what rulemaking will be abandoned or pursued and what, if any, changes will be made to the current enforcement model, mine operators must prepare for a similarly motivated agency. Despite agency management and administration change, the same enforcement personnel on the ground, who have been trained under the aggressive enforcement of the past eight years, will remain in the field.
Conn Maciel Carey’s complimentary 2017 MSHA Webinar Series, hosted by the firm’s national MSHA Practice Group, is designed to give you the tools to prepare your mining operations for forthcoming initiatives, rulemaking and enforcement under the new administration.
To register for an individual webinar, click on the link below the program description. To register for the entire 2017 series, click here to send us an email request, and we will register you. If you missed any of our programs from the 2016 MSHA Webinar Series, here is a link to an archive of recordings of those webinars.
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2017 MSHA Enforcement Initiatives and Rulemaking Outlook Thursday, January 26th |
Working Effectively With Counsel During Investigations and Contest Wednesday, July 19th |
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MSHA 101: Understanding The Mine Act and MSHA Policy Tuesday, February 14th |
Internal and Third Party Safety Audits
Thursday, August 24th |
| How to Contest MSHA Citations
Thursday, March 16th |
Tuesday, September 26th |
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Working With MSHA: Alternative and Pre-Enforcement Resolutions Tuesday, April 25th |
The Evolution of Imminent Danger Orders Thursday, October 26th |
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MSHA Most-Cited Standards and How To Avoid Them Wednesday, May 17th |
MSHA Recordkeeping Requirements and Document Production Wednesday, November 29th |
| MSHA Citations and Orders Beyond 104(A)’s
Tuesday, June 20th |
Miners’ and Mine Managers’ Rights Thursday, December 14th |
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SEE BELOW FOR DESCRIPTIONS OF THE |
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2017 MSHA Enforcement Initiatives and Rulemaking Outlook
Thursday, January 26, 2017 at 1 PM ET
Presented by Nicholas W. Scala
As we begin a new calendar year and look ahead to a new administration, industry should continue to stay informed as to MSHA’s regulatory agenda and enforcement initiatives. While MSHA will soon have new decision makers in place, it will take time to establish the agency’s agenda. In the meantime, MSHA will continue to purse enforcement and rulemaking similar to the regime of the last eight years.
Whether it is the emphasis on Rules to Live By or reliance on Fatalgrams to put operators on notice of particular issues, MSHA inspectors will continue to aggressively enforce the standards. MSHA will also move forward with finalizing the Proposed Rule on Workplace Exams.
During this webinar, participants will learn about:
- How to prepare mines for new and continuing MSHA enforcement initiatives;
- MSHA’s regulatory agenda and the status of proposed rulemaking efforts; and
- Potential changes to enforcement and rulemaking under the incoming administration.
MSHA 101: Understanding The Mine Act
Tuesday, February 14, 2017 at 1 PM ET
Presented by Nicholas W. Scala
The Mine Act of 1977 governs all mine operators and grants MSHA authority over the industry. It, along with the MINER Act of 2006, also specifically outline the rights of miners and operators. Yet, while the Mine Act directs the industry regulators, many operators are not familiar with the specific elements contained in it, beyond the requirement that MSHA inspect them two or four times per year.
The Mine Act, and MSHA’s associated policy and handbooks, outline the power and procedures through which MSHA operates. A better understanding of these powers and authority provides operators the ability and opportunity to more efficiently work with MSHA and when needed assert their rights during inspections or investigations.
During this webinar, participants will learn about:
- The specific powers of MSHA and rights of operators under the Mine Act and MINER Act;
- Inspection and investigation procedures outlined in MSHA policy and handbooks; and
- How to implement this knowledge when dealing with MSHA enforcement.
Thursday, March 16, 2017 at 1 PM ET
Presented by Nicholas W. Scala
As MSHA continues to issue citations and orders, it is essential that mine operators are aware of their contest rights. Just as important, operators need to know how to contest MSHA issuances while adhering to contest process deadlines.
Currently, operators can request informal contests through district offices and/or proceed through formal contest via the Federal Mine Safety and Health Review Commission. However, every contest option has its unique steps and deadlines. Understanding these procedures is the best way to move quickly and effectively through the contest process.
During this webinar, participants will learn about:
- Procedures for initially contesting citations and orders, including the formal and informal contest options;
- The contest deadlines and timeframes for specific types of citations and orders; and
- The formal contest process and essential elements steps before the Federal Mine Safety and Health Review Commission.
Working With MSHA: Alternative Citation Resolution and Pre-Enforcement Interaction
Tuesday, April 25, 2017 at 1 PM ET
Presented by Nicholas W. Scala
While operators have the right and opportunity to contest any citation or order issued by MSHA, there ways to address concerns with MSHA prior to contest.
Proactively engaging with MSHA field office and district personnel can lead to avoiding enforcement, if operators and inspectors are at odds over a potentially hazardous, but uncited, condition, or if the operator is having an issue with contentious inspectors/investigators onsite.
Understanding MSHA’s hierarchy as well as opportunities for alternative citation or pre-enforcement contact provides operators a chance come to an understanding with the agency before the contest process. Operators with jurisdictional questions or setting up new mining operations or equipment will find this webinar particularly beneficial.
During this webinar, participants will learn about:
- Strategies for working with MSHA field and district offices;
- Matters that are ripe for pre-enforcement interaction with MSHA, such as jurisdiction; and
- How to address inspector action or behavior concerns with MSHA management.
MSHA’s Most-Cited Standards and How to Avoid Them
Wednesday, May 17, 2017 at 1 PM ET
Presented by Nicholas W. Scala
MSHA’s published enforcement initiatives and Fatalgrams are an easy place to start when improving mine safety and proactively preparing sites for inspection, especially if you do your research. Reviewing MSHA’s most-cited standards for enforcement trends can offer nuanced insight into the areas MSHA tends to emphasis during enforcement, customized to an operator’s industry sector and/or geography.
Armed with this knowledge, operators can determine trends in citations, specific to operations like their own and proactively prepare and avoid enforcement.
During this webinar, participants will learn about:
- MSHA’s most-cited standards for a variety of industry sectors; and
- Enforcement tendencies specific to mining subgroups.
MSHA Citations and Orders Beyond 104(A)’s
Tuesday, June 20, 2017 at 1 PM ET
Presented by Nicholas W. Scala
Most, if not all, operators have at one time or another received a 104(A) citation from MSHA. While operators may be aware the basic orders MSHA can issue, such as unwarrantable failures, there are numerous, lesser known types of orders that can shut down mining operations.
This webinar will identify the broad spectrum of orders MSHA can issue to operators during regular inspections, accident or fatality investigations and special investigations as well as how to contest these issuances. Operators will be armed to quickly identify the repercussions these orders and prepared to properly abate any issued.
During this webinar, participants will learn about:
- The different types of MSHA orders and specific procedures for contesting them;
- The consequences of receiving each order, such as immediate withdrawal from service; and
- Strategies for abating MSHA orders, including handling related investigations.
Working Effectively with Counsel During Investigations and Contest
Wednesday, July 19, 2017 at 1 PM ET
Presented by Nicholas W. Scala
Dealing with enforcement isn’t at the top of any operator’s favorite things list. It can be a stressful and concerning experience for even the most seasoned operations. Often companies decide to engage with legal counsel during serious investigations or as deadlines approach.
This webinar will outline how to effectively work with counsel during stressful times, such as accident or fatality investigations or abatement and contest. Knowing when to contact counsel and what information should be transferred immediately can jump start the representation and help expedite a resolution.
During this webinar, participants will learn about:
- When counsel should be engaged while dealing with enforcement personnel;
- What information is essential when beginning an attorney-client relationship; and
- Advice for working efficiently with counsel during investigations and contests.
Internal and Third Party Safety Audits: Risks, Rewards and How to Protect the Results
Thursday, August 24, 2017 at 1 PM ET
Presented by Nicholas W. Scala
There are numerous benefits to internal or third-party safety audits. These audits offer operators terrific insight for proactive safety and compliance improvements. But, can these audits be used against an operator…The short answer is yes.
Typically, both internal and third-party safety audits can be acquired by MSHA during inspection (if offered by the operator) or during discovery in litigation. Since MSHA has no statute of limitations for enforcement, such records can be used against operators, especially to support allegations that an operator knew or should have known of specific conditions. This webinar will provide recommendations for the creation and retention of internal and third-party audits.
During this webinar, participants will learn about:
- MSHA’s capacity to rely upon prior safety audits during investigations and enforcement;
- Suggested limits on distribution and language choices while creating audits; and
- How to engage with counsel to assert privilege over the audits and protect them from MSHA.
Tuesday, September 26, 2017 at 1 PM ET
Presented by Nicholas W. Scala
MSHA investigations can catch operators off-guard and are laden with small comments or mishaps that can escalate into enforcement nightmares. The tactics and personnel used during MSHA investigations are typically much more aggressive than normal inspections, and operators can quickly find themselves in uncharted territory if the investigation is not managed properly.
This webinar will discuss the first steps operators should take once either an investigation begins, an unwarrantable failure is issued, or an accident/fatality occurs.
During this webinar, participants will learn about:
- How to prepare mines for the arrival of MSHA investigators;
- The rights of miners and mine management during investigations; and
- What materials will likely be requested by MSHA and what materials operators must provide.
The Evolution of Imminent Danger Orders: Application By MSHA and Legal Developments
Thursday, October 26, 2017 at 1 PM ET
Presented by Nicholas W. Scala
In the last several years, MSHA has issued 107(A) Imminent Danger orders with increased frequency. On the surface, these orders seem self-explanatory, yet the agency has been moving beyond the common assumption that these orders can only be issued when death or serious injury is imminent.. For example, some inspectors are issuing Imminent Danger orders under circumstances operators consider much less severe, and the Federal Mine Safety and Health Review Commission has been upholding them.
This webinar will discuss how MSHA’s application and enforcement of imminent danger orders have evolved at the close of Assistant Secretary Joe Main’s tenure, including how and why Commission decisions have bolstered this trend.
During this webinar, participants will learn about:
- How Imminent Danger order are defined;
- MSHA support of the use of 107(A) orders by inspectors; and
- Federal Mine Safety and Health Review Commission and Federal Court decisions shaping the 107(A) landscape.
MSHA Recordkeeping Requirements and Document Production
Wednesday, November 29, 2017 at 1 PM ET
Presented by Nicholas W. Scala
Recordkeeping requirements such as workplace exams are well-known and often discussed with MSHA inspectors, however these are far from the only records that MSHA requires operators to maintain. On top of knowing which records to keep, it is equally important that operators are aware of how long the records must be maintained.
Failure to produce a required record will most likely result in a citation for failure to maintain the records, and even if the records were created but not retained long enough operators can expect a citation similar to if the record was not created at all. This webinar will provide with the tools to proficiently produce and provide to MSHA document that must be maintained for both regular inspections and recordkeeping audits under Part 50.
During this webinar, participants will learn about:
- Which record must be maintained by operators under MSHA;
- How long records must be retained by the operator; and
- How to react if MSHA is requesting documents not expressly required to be maintained.
Miners’ and Mine Managers’ Rights
Thursday, December 14, 2017 at 1 PM ET
Presented by Nicholas W. Scala
MSHA publishes and distributes information each year on miners’ rights in the workplace. The rights widely broadcast by the agency include the right to report hazards in the workplace to MSHA, to not be discriminated against in the workplace for reporting safety defects (amongst other protected activities) and to speak to MSHA without management present. However, this is only half the story and does not include the rights of mine management personnel during inspections and investigations.
During enforcement and investigations, MSHA relies heavily on miner statements and alleged admissions by mine management. Especially during special investigations, these statements can be the nails in the coffin for enforcement. Operators should be aware of the rights of all miners and mine management both cooperate with MSHA, or not, and train the workforce on their rights when dealing with MSHA.
During this webinar, participants will learn about:
- The rights of miners and agents of management while interacting with MSHA;
- Strategies for training personnel to handle MSHA investigations; and
- When operators and agents of management should refrain from speaking to MSHA.