MSHA Finally Comments on D.C. Appeals Court Ruling for M/NM Workplace Exam Rule: Announces 2017 Rule Effective Immediately

By: Nicholas W. Scala

Today, September 30, 2019, MSHA published a notice in the Federal Register regarding 30 C.F.R. §56/57.18002, Examinations of Working Places in Metal and Nonmetal Mines. The notice marks the first official public comment by MSHA since the U.S. Court of Appeals for the District of Columbia ruled in favor a union challenge to MSHA’s 2018 Amendments to the workplace exam rule – which is the version of the rule that went into effect late last year. (See our in depth analysis of the D.C. Court’s ruling from June 11, 2019)

The notice puts into effect the 2017 Final Rule version of the workplace exam standard as of today, September 30th. However, the notice also states that MSHA will recognize a 90-day period for implementation of the 2017 Final Rule requirements. Federal Register SnipThis effectively gives operators until December 29, 2019 to become compliant with the new provisions. During this time period, MSHA will hold (and announce a later date) stakeholder meetings, while also release compliance assistance materials for operators to utilize.

The 2017 Final Rule included two provisions that were slightly modified by the 2018 Amendments, as explained in our June post:

In reinstating the 2017 Rule, the Court of Appeals put into effect two requirements operators previously did not have to comply with:

  1. All workplace exams must be done BEFORE miners enter a working area; and
  2. All adverse conditions observed during a workplace exam must be recorded, even if corrected/abated prior to miners entering the working area [or being exposed to the adverse condition].

The process of updating the workplace exam rule to this point can be described as tumultuous at best, and there is yet still another challenge to the rule pending – this time the challenge being brought by an operator stakeholder association. Getting to this point in the rule’s implementation has been circuitous, and a timeline of the workplace exam rule’s procedural history explains this best: Continue reading

All On-site Fatalities Reportable to MSHA Within 15 Minutes – Even When Not the Result of Mining Activities

By: Daniel C. Deacon and Nicholas W. Scala

Mine operators are required by law to report all mining accidents immediately – within 15 minutes of when the operator knew or should have known about the accident.  The term accident is defined broadly by MSHA’s regulations to include a death of an individual at a mine.

A recent decision by the Federal Mine Safety and Health Review Commission (the “Commission”) explored scope of the reporting rule and limitations on the term “accident” in deciding whether a fatal heart attack – unrelated to work activities – is reportable to MSHA within 15 minutes of management learning of the fatality, pursuant to 30 C.F.R. Part 50.

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In Richmond Sand & Stone, LLC, Docket No. YORK 2018-31-M (Aug. 13,2019), the employer received a single citation alleging a failure to notify MSHA of a fatal heart attack in a timely manner.  The standard specifically requires operators to:

immediately contact MSHA at once without delay and within 15 minutes . . . once the operator knows or should know that an accident has occurred involving:

[a] death of an individual at the mine.

30 C.F.R. § 50.10(a)

The Commission decision came after an Administrative Law Judge (“ALJ”) initially found that the employer violated section 50.10(a) because a death occurred on-site and the operator did not report it until the next day.  The ALJ interpreted the regulation to require the immediate reporting of any death at a mine.

On appeal, the employer argued that section 50.10(a) does not require the reporting of fatal heart attacks (or of any deaths due to natural causes) because such deaths do not fall within the ordinary meaning of “accident.”  Continue reading

In-Person OSHA, MSHA, and Labor Briefing (and Launch Party) in Columbus, OH – October 1, 2019

Join Conn Maciel Carey for an In-Person OSHA, MSHA, and Labor Briefing in Columbus, OH on Tuesday, October 1, 2019, and stay for a cocktail reception to celebrate the launch of our new Columbus, Ohio Office.

This complimentary program will feature panel discussions with representatives from the National Labor Relations Board, OSHA, and MSHA addressing key policy trends and regulatory developments.  The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys.  The plenary sessions will cover topics including:

  • MSHA regulatory and enforcement priorities
  • OSHA policy and enforcement developments
  • NLRB rulemaking and Board case law updates
  • Other trending topics (joint-employer, pension withdrawal liability, whistleblower / anti-retaliation claims)

There will also be breakout sessions with discussions led by CMC attorneys covering issues of particular concern to various industry segments.

Here is the current agenda for the event:

Columbus Event Agenda

Continue reading

Mid-Year MSHA and FMSHRC Review – [Webinar Recording]

On August 8, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the fourth webinar in the 2019 MSHA Webinar Series discussing a Mid-Year MSHA and FMSHRC Review.Aug 2019 Webinar Snip

An end of year review is always helpful, but with the ever-changing regulatory landscape, and a steady stream of Federal Mine Safety and Health Review Commission decisions, it is equally important to take stock of the landscape during each summer. We are in the thick of MSHA’s enforcement season and rounding out the last few months of the Agency’s fiscal year. What has changed since summer 2018 and how are the changes affecting the county’s mine operators and contractors?

This webinar explored year-to-date enforcement trends and updates, while diving into relevant FMSHRC decisions that are directly impacting MSHA and the compliance responsibilities of operators.

During this webinar, participants learned about: Continue reading

U.S. Supreme Court Upholds Virginia Uranium Mining Ban on Private Lands

By Nicholas W. Scala and  Dan C. Deacon

The U.S. Supreme Court recently upheld a Virginia law that bans mining at an untapped uranium deposit on private land in Southern Virginia, which is believed to be the largest deposit in the United States and estimated to be worth somewhere around $6 billion.

The Virginia General Assembly has been wary of mining the uranium since the issue was raised in the early 1980s.  Following the nuclear incident at Three Mile Island in Pennsylvania in 1979, the state passed a law in 1982 permitting uranium exploration but imposing a one-year ban on mining.  It later extended the ban indefinitely in 1983.

The owners of the property and the company seeking to exploit the deposit, Virginia Uranium, filed a lawsuit with the backing of the Trump administration to overturn the ban.  Virginia Uranium is a subsidiary of Vancouver, British Columbia-based Virginia Energy Resources.  The group contested Virginia’s power to enact the ban, arguing that the policy should have been preempted by federal law governing nuclear energy.supreme-court

The dispute focused on whether the federal Atomic Energy Act of 1954, which regulates the development of nuclear energy, preempts Virginia’s mining ban under the U.S. Constitution’s so-called Supremacy Clause. The Supremacy Clause holds that federal law generally supersedes or preempts state law where there is a conflict.

Virginia Uranium argued that the federal Atomic Energy Act should take precedence over state restrictions since it regulates what can be done with uranium and its radioactive waste after extraction from the earth.  As stated in the decision, the oversight Atomic Energy Act and Nuclear Regulatory Commission begins when milling of the extracted uranium ore takes place.Differentiating the bounds of the mining process from that of the Department of Labor and Mine Safety and Health Administration, where extraction and milling or processing are considered part of the mining process.

The Court voted 6-3, holding that Virginia’s uranium-mining ban is in accord with the U.S. Atomic Energy Act and the Commonwealth has the power to regulate the industry on private land.  Continue reading

Appellate Court Rescinds MSHA’s Workplace Exam Rule for Metal/Nonmetal Mines and Imposes More Stringent Exam Requirements

By: Nicholas W. Scala

On June 11, 2019, the U.S. Court of Appeals for the District of Columbia issued a decision vacating MSHA’s current Metal/Nonmetal Workplace Exam Rule and installing a 2017 version of the rule (“2017 Rule”) as enforceable.

The challenge to the rule was brought by various labor unions contesting MSHA’s 2018 amendments to the revised 56/57.18002 (the 2018 Rule). The 2018 Rule, finalized in June 2018, went into effect in October 2018. Now, the 2017 Rule is in effect, and citations can be issued for noncompliance with its requirements by MSHA inspectors. [see our previous post detailing the 2017 final rule here]. workplace exam decision

In reinstating the 2017 Rule, the Court of Appeals put into effect two requirements operators previously did not have to comply with:

  1. All workplace exams must be done BEFORE miners enter a working area; and
  2. All adverse conditions observed during a workplace exam must be recorded, even if corrected/abated prior to miners entering the working area.

The challenge to the 2018 Rule was two-fold, first, in the 2018 amendments, MSHA modified the requirement that the workplace exam must be done “before” miners enter a working area, allowing operators to conduct the exams “before OR AS” miners enter the workplace. Continue reading

Preventing and Defending MSHA Whistleblower Claims – [Webinar Recording]

On June 4, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the third webinar in the 2019 MSHA Webinar Series regarding Preventing and Defending MSHA Whistleblower Claims.

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A priority under the Obama Administration across workplaces nationwide, the mining industry was not immune to the spike in discrimination cases brought forward by MSHA. While these cases may not receive the attention they once did, discrimination cases under Section 105(c) of the Mine Act remain an active area of MSHA investigation and prosecution, and perhaps one of the most costly and difficult allegations for operators to defend. Continue reading

What to Do During MSHA Accident and Injury Investigations – [Webinar Recording]

On April 10, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the second webinar in the 2019 MSHA Webinar Series which covered What to Do During MSHA Accident and Injury Investigations.

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The hours, days and weeks following an on-site accident are stressful and at times chaotic environments for employees and managers alike. While the well-being of any injured party is the priority, operators must also ensure appropriate action is taken to comply with MSHA regulations and assess the incident while taking steps toward preventing a similar occurrence.These concerns are enough to manage without the likely visit from MSHA to investigate, at which time inspectors will conduct employee interviews and issue citations and orders in the event of alleged noncompliance.

This webinar reviewed the immediate compliance requirements following an accident, as well as strategies to limit exposure and protect company interests while allowing MSHA to complete its investigation.

During this webinar, participants learned about:

  • Responsibilities of mine operators and independent contractors in the event of an accident;
  • Miner and mine management rights during a subsequent MSHA investigation; and
  • Best practices for conducting internal accident investigations.

Here is a link to a recording of the webinar with audio, and a copy of the slides. This was the second webinar event in the 2019 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the rest of the webinars in the 2019 series, send an email to info@connmaciel.com to be registered for all the 2019 MSHA webinars.

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2019 Webinar Table

Conn Maciel Carey Opens Columbus, Ohio Office

Conn Maciel Carey LLP announced today the opening of its Columbus, Ohio office. It is the firm’s sixth office nationally and the second location in the Midwest. The new office represents another important step in the firm’s continued growth in the region, together with the opening of its Chicago office last year.

Columbus is a growing Midwest hub and is centrally located to many of the nation’s current and historic industrial centers. With an expanded Midwest presence, Conn Maciel Carey attorneys now provide enhanced services to its national clients operating in the Midwest.

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We are excited about our expanding Midwest presence” said Managing Partner Bryan Carey. “The Columbus office will allow the firm to build upon the success of our 2018 launch of our Chicago office, offering clients operating in the central U.S. greater proximity to our attorneys, resources, and counsel.

Nicholas W. Scala, a partner with the firm, will lead the Columbus office. Mr. Scala joined the Firm in 2016, founding the firm’s MSHA Practice Group, which he chairs. His practice services the mining industry, managing all interaction with, and contest of enforcement by, the Mine Safety and Health Administration (MSHA) for companies operating in the coal, aggregates, industrial minerals, and cement industries. He also CMC Headshot (2017)supports the firm’s national OSHA Practice Group, representing general industry and construction companies in connection with inspections and enforcement actions by the Occupational Safety and Health Administration (OSHA). Mr. Scala works with state mining associations in Ohio and Illinois and represents clients throughout the Midwest and Ohio River Valley regions. He was named a Super Lawyer Rising Star in Washington, D.C. in 2017, 2018, and 2019.

The Columbus market offers a fantastic opportunity for not only our MSHA Practice, but for OSHA and Labor and Employment, as well,” said Scala. “Working with attorneys spanning the firm’s existing offices and groups, we will build upon the firm’s experience and proven client service, bringing additional value to the Midwest. Specific to our firm’s Workplace Safety Practice Group, Columbus is centrally located to several of the most active mining regions in the country, as well as a historically active area for regulatory enforcement over the construction and general industry sectors. It’s a growing and dynamic market that I am eager to grow the firm in.

The Columbus office will expand Conn Maciel Carey’s national Labor and Employment and OSHA practice groups. The Labor and Employment Practice Group, led by founding partner Kara M. Maciel, provides employment defense in both state and federal courts, labor-management relations, as well as day-to-day counseling on a vast array of employment matters. The OSHA Practice Group, led by founding partner Eric J. Conn, represents a wide-range of clients across the country in all aspects of their interaction with OSHA and state OSH programs.

In addition to its Midwest offices, the boutique law firm, which was founded in 2014, has offices in Washington D.C.; Chicago, Illinois; Atlanta, Georgia; Los Angeles, California; and San Francisco, California.

Here is a link to a press release issued by the Firm about these exciting developments.

FMSHRC Commissioners Confirmed: Appeals of MSHA Enforcement to Continue

By: Nicholas W. Scala

As of March 25, 2019, the Federal Mine Safety and Health Review Commission (FMSHRC), the body which oversees operator and MSHA litigation under the Federal Mine Safety and Health Act of 1977 (the Mine Act), has regained the ability to hear and decide cases for first time since August 2018. The swearing-in of Commissioner William I. Althen, Commissioner Arthur R. Traynor III, and Chairman Marco M. Rajkovich, Jr. reinstated quorum for the FMSHRC.

FMSHRC Confirmations SnipOn August 30, 2018, with the expiration of terms for then Commissioners Cohen and Althen, the FMSHRC no longer had the requisite minimum of three members to form a quorum, or the minimum number of Commissioners required to fully function. During that time, Commission authority was limited to deciding which cases it would hear on appeal, however, all appeals of Administrative Law Judge (ALJ) decisions under the Mine Act were stayed, awaiting confirmation of the presidential nominees from the Senate. These nominees were confirmed by the Senate on March 14—more than a year after Chairman Rajkovich’s nomination in January 2018.
In its role as the appellate body of ALJ decisions, the Commission fills an important role in the evolution of MSHA regulations and interpretations. Commission decisions are binding on the FMSHRC ALJs, as well as MSHA and operators, unless a decision is appealed to the federal court system and the Commission reversed.

The restoration of quorum comes with a growing docket of appeals before the Commissioners, with topics ranging from discrimination and protected activity for miners under the Mine Act, the scope of ALJ power in requiring evidence be produced to approve settlements, and when fall protection is or is not required to be worn.

The Commission will remain complete with its five members until the terms of Commissioners Jordan and Young expire in 2020. Yet, even if the nomination and confirmation process is as sluggish as it was this time around, the Commission will retain quorum with the three recently confirmed members until Commissioner Traynor’s term expires in 2022. The terms for Chairman Rajkovich and Commissioner Althen expire in 2024. With a full Commission, industry can hopefully expect guidance on many of the languishing legal issues litigated in the recent years with MSHA.