MSHA Issues Direct Rule to Include Electronic Detonators in Regulations

By: Nicholas W. Scala and Daniel Deacon

On January 14, 2020, the Mine Safety and Health Administration published a Direct Final Rule revising certain safety standards regarding explosive materials at Metal and Nonmetal (M/NM) mines – specifically relating to the use of electronic detonators.  The direct rule will become effective on March 16, 2020, “unless substantive adverse comments* are received or postmarked by midnight Eastern Standard Time on February 13, 2020.  If adverse comment is received, MSHA will publish a timely withdrawal of the rule in the Federal Register.”

A concurrent Proposed Rule was published in the Federal Register to speed up notice and comment rulemaking should the agency decide to withdraw the direct rule. However, all interested parties who wish to comment should comment at this time “because MSHA does not anticipate initiating an additional comment period.

Background of Rule

As part of Assistant Secretary Zatezalo’s continued push to embrace technological advancements in the mining industry, MSHA seeks to update an aging regulation to include reference to modern systems. MSHA for the most part has utilized the same definition for detonators since 1979 – with the exception of a minor modification in 1991.Detonators direct rule The standards have defined “detonators to mean any device containing a detonating charge that is used to initiate an explosive such as electric blasting caps and non-electrical instantaneous or delay blasting caps.” MSHA anticipated that the existing definition would continue to cover new developments in detonator technology but has not found that to be the case given advancements in computer and micro-processing technologies – which have led to the development of “electronic” detonators.

Historically, MSHA’s standards have included only two types of detonators in the definition: non-electric (includes devices such as detonating cords, shock-tube or safety fuse detonators, or a combination of these), or electric (uses electrical currents to initiate detonation).

The addition of electronic detonators (designed to use electronic components to transmit a firing signal with validated commands and secure communications to each detonator, and a detonator cannot be initiated by other means) will serve to update the regulations to include what is at this point the is the technology in use by the majority of operations.

On September 28, 2004, MSHA issued Program Information Bulletin (PIB) No. P04-20, Electronic Detonators and Requirements for Shunting and Circuit Testing. The PIB discussed how to rectify MSHA requirements on shunting and circuit testing with the advanced electronic detonators. During its review of electronic detonators, MSHA found that the systems contained internal safeguards for shunting and circuit testing and that these systems satisfy MSHA regulation as long as the manufacturer instructions are followed.

Proposed Revisions

In 2018, MSHA requested comments from industry stakeholders on which existing regulation(s) should be repealed, replaced, or modified without reducing miners’ safety and health. The changes proposed in this direct rule were largely the result of comments from the Institute of Makers of Explosives (IME), which requested that MSHA update its regulations to recognize the significant developments in safety and sophistication offered by electronic detonators. Continue reading

Announcing Conn Maciel Carey’s 2020 MSHA Webinar Series

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2020 brings about MSHA’s third year under the guidance of Assistant Secretary Zatezalo. Since being confirmed in 2017, the Assistant Secretary has made significant strides in fundamentally changing MSHA. The traditionally separated Coal and Metal/Nonmetal divisions have merged under a single administrator, and MSHA instituted a “blurring” of Coal and Metal/nonmetal inspectors and litigation resources. Additionally, MSHA continues to engage in rulemaking efforts regarding Powered Haulage – which could lead to a proposed rule in 2020 – and Respirable Quartz (Silica). These items, coupled with MSHA’s continued practice of exceeding the minimum two or four visits per year at mine sites and the roll-out of new enforcement initiatives, add up to an MSHA that is quietly evolving under the Trump Administration. As we enter an election year, it is especially important to track MSHA’s activity as new rules and/or fundamental changes to agency structure may further alter the enforcement and compliance landscape for mine operators and independent contractors at mine sites.

Conn Maciel Carey’s complimentary 2020 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 for 2020 and beyond.

To register for an individual webinar, click the registration link in the program descriptions below. To register for the entire 2020 series, click here to send an email request, and we will get you registered. If you miss any of the programs this year or those hosted during prior years, here is a link to our webinar archive.

MSHA 2019 in Review and 2020 Forecast

Tuesday, February 11, 2020

MSHA and FMSHRC Mid-Year Update

Tuesday, July 21, 2020

Preparing for and Managing MSHA Inspections

Thursday, March 26, 2020

Attorney-Client Privileged Audits and Investigations

Tuesday, September 22, 2020

MSHA Part 50 and Training Recordkeeping Requirements

Tuesday, May 26, 2020

Legal Responsibilities and Liabilities with Contractors at a Mine

Thursday, December 12, 2019

SEE BELOW FOR DESCRIPTIONS OF THE WEBINARS AND REGISTRATION LINKS Continue reading

MSHA Begins Enforcing New Provisions of Workplace Exam Rule for M/NM Mines

By: Nicholas W. Scala

Happy New Year (now you better be in compliance)! For Metal/Nonmetal production operators and independent contractors, welcoming 2020 means the deadline to comply with MSHA’s newest iteration of the Workplace Exam Rule for M/NM mines is here.

Effective January 1, 2020, MSHA’s 90-day enforcement hold on the updated rule expired, and inspectors will now be issuing citations if a production operator or independent contractor is found in violation of the fully implemented 2017 Final Rule.

The process of altering the workplace exam rule from the 2018 Final Rule began in earnest this past June 2019, when the U.S. District Court for the District of Columbia found in favor a labor union challenge to the regulation. The Court found MSHA violated the “No Less Protection” clause of the Mine Act and parts of the Administrative Procedure Act with respect to its rulemaking process. Workplace Exam MSHA Screenshot.JPGAs discussed in our June 2019 blog, the Court ruled, and subsequently ordered after MSHA sought review of the decision, MSHA must make the following changes to the 2018 Final Rule, effectively reinstating the first final version of the Workplace Exam rule from January 2017.

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.

Continue reading

Requirements and Limitations of MSHA Citations and Orders – [Webinar Recording]

On December 12, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the sixth and final webinar in the 2019 MSHA Webinar Series discussing Requirements and Limitations of MSHA Citations and Orders.December 2019 Snip

While most operators know how to respond to an inspector issuing 104(A) citations, what happens when the inspector issues a 104(B) or 107(A) or 104(D)? Each citation and order issued by MSHA either requires or prohibits some action from an operator, whether the production operator or independent contractor. Sometimes, a single order mandates action or inaction by both parties.

This webinar reviewed MSHA’s available citations and orders, with an emphasis on the appropriate reaction by operators to prevent further enforcement and safeguard contest rights.

During this webinar, participants learned about:

  • Available citations and orders that can be issued by MSHA inspectors;

  • How to identify what action should be taken, or what action is prohibited, depending on the citation/order issued; and

  • How to preserve an operator’s contest rights while complying with MSHA issuances.

Here is a link to a recording of the webinar with audio, and a copy of the slides.  Thank you to all of those who joined the 2019 MSHA Webinar Series. The 2020 MSHA Webinar Series Schedule will be posted soon!

Responding to MSHA Document Requests During Inspections, Investigation, and Litigation – [Webinar Recording]

On October 10, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the fifth webinar in the 2019 MSHA Webinar Series discussing Responding to MSHA Document Requests During Inspections, Investigation, and Litigation.Oct Webinar snip.JPG

MSHA regulations require that mine operators and independent contractors maintain certain records on-site and internally. There is no question that when an inspector requests these records, for the period they are required to be maintained, employers must comply. But what happens when MSHA inspectors, or special investigators, request documents outside these required records? What are the ramifications for turning non-required records over to MSHA, or not doing so?

This webinar evaluated the document retention and production obligations of operators, and how to deal with document requests and production throughout different types of investigations or litigation.

During this webinar, participants learned about:

  • Recordkeeping requirements at MSHA sites;

  • How to respond to MSHA document requests during inspection, investigations or litigation; and

  • Resolutions for document production demands outside the scope of required records.

Here is a link to a recording of the webinar with audio, and a copy of the slides.  Be sure to join us for the final webinar in the 2019 MSHA Webinar Series discussing the Requirements and Limitations of MSHA Citations and Orders.

2019 last webinar snip.JPG2019 Webinar Series Logo

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.

Richmond Sand - 15 min

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