MSHA Imminent Danger Orders for Violations by Independent Contractors Will Require Stronger Contract Provisions

By Nickole Winnett and Breyana Penn

Recently, Administrative Law Judge Thomas McCarthy for the Federal Mine Safety and Health Review Commission, confirmed that the Mine Safety and Health Administration (MSHA) has unfettered discretion to issue an imminent danger order against a mine operator for its independent contractor’s violations of the Mine Safety and Health Act of 1977 and MSHA regulations. (See Cloverlick Coal Company LLC v. MSHA).

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Do Your Miners Have the Munchies?

By Avi Meyerstein and Matthew Nieman

Are some of your miners having a little too much fun in their spare time? With cultural norms and state laws regarding marijuana use in flux around the country, the answer may be “yes,” which puts you and other mine operators in a challenging position.

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Potentially More Penalties? The Concern with MSHA's Proposed Part 100 Overhaul

By Breyana A. Penn

It is no secret that there are often differences in opinions between inspectors and operators on what exactly constitutes the proper negligence or gravity designation of an alleged violation. Operators have, therefore, found themselves fighting to defend the integrity of their mine(s) in light of the blatant subjectivity and speculation that seems to accompany so many citations. Case in point: in 2007, the Mine Safety and Health Administration (MSHA) modified the penalty structure leading not only to an immediate increase in the amount of citations received by operators, but also in the amount contested. While the method behind the assessment process is relatively transparent, the way in which the categories are chosen has proven to be illusory at best - both the reasoning and rationale seemingly differing from inspector to inspector and even inspection to inspection.

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Unintended Consequences or Bad Government Policy?

By Linda Otaigbe

The new Mine Safety and Health Administration (MSHA) Coal Dust Rule, published in May, mandates sweeping changes claimed to reduce health effects from exposures to respirable coal mine dust. The dust exposure limit has been 2 mg/m3 for decades, and great progress has been made in reducing exposures and disease. However, MSHA now is of the opinion that disease from coal dust continues to occur and has mandated that, on August 1, 2016, the limit be lowered to 1.5 mg/m3 (with further reductions based on a formula when dust contains more than 5% silica). MSHA also mandated massive changes in dust sampling requirements that will result in hundreds of thousands of samples collected with a new, continuous read-out sampler device in 2016 called a continuous personal dust monitor (CPDM). Each shift will be measured for compliance, instead of averaging five shifts. Previously, the average of five shifts was used to correct for the known variability and inaccuracy of using single samples to represent the exposure of miners.

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Embarrassing Paper

R. BRIAN HENDRIXBy R. Brian Hendrix

None of us are perfect. In every human endeavor, mistakes are made, for all sorts of reasons. Mine operators and miners make mistakes, and so do Mine Safety and Health Administration (MSHA) inspectors. Human nature, the complexity and dynamic nature of mining, and the difficulties associated with the enforcement of broadly worded performance standards will inevitably lead to reasonable and even not-so-reasonable differences of opinion on occasion.

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