Mining Matters

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.