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Legally Speaking - July-August 2017

The Importance of Clarifying Employee ‘Impairment’ As Marijuana Laws Evolve

As more states continue to legalize marijuana for medicinal purposes and even recreational use, employers’ rights and responsibilities are beginning to change. The mere detection of marijuana in a urine sample may not justify discharge in some states. Proof of impairment may be needed. Even in those states where impairment is not the focus, the wording in an employer’s policies prohibiting drug use in the workplace may unintentionally require impairment as a necessary element for discharge. Proving impairment from marijuana usage is not a simple matter determined by a urine test. Something more is required.

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Legally Speaking - June 2017

How Do You Represent Yourself When Challenging MSHA Citations?

Picture this. Your mine gets a Mine Safety and Health Administration (MSHA) citation you do not agree with for a variety a reasons. The problem is, it’s been assessed at $200 and you cannot justify hiring counsel to defend the company for a citation with such a small penalty.

Many operators feel they do not have the resources or the knowledge to defend the company in this situation. Here’s a recent story that might inspire you. Buzzi Unicem USA operates a small limestone pit in Tennessee. Early one March morning, an MSHA inspector arrived and issued a citation for failing to maintain sufficient illumination in the area where the barges are docked. The secretary sought a penalty of $100 for the alleged violation.

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Legally Speaking - May 2017

Trump’s Executive Order on the Clean Power Plan Signals Potential Shifts in Coal Industry

In the last Legally Speaking column of Coal Age, author Jason Moore discussed the expectation that President Donald Trump would sign an executive order concerning the Clean Power Plan (CPP) — an Obama administration policy focused on significantly reducing carbon pollution to address climate change — in the very imminent future, as well as some of the anticipated impacts. As expected, President Trump issued an executive order on March 28 entitled the “Energy Independence Executive Order.” This order comes as no surprise given Trump’s repeated promise during his campaign about his intention to dismantle the CPP entirely.

The executive order issues the following directive: “The heads of agencies shall review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal and nuclear energy resources.” Specifically, Scott Pruitt, Environmental Protection Agency (EPA) administrator, is directed to “immediately take all steps necessary” to review the CPP, “and, if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising or rescinding” the CPP. Following the order’s issuance, Pruitt signed a Federal Register notice announcing that the EPA was reviewing and, “if appropriate, will initiate proceedings to suspend, revise or rescind the Clean Power Plan.”

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The Trump Transition

Recent actions by President Trump and Congressional Republicans strongly indicate that the president intends to make good on repeated promises to take dramatic action to revitalize the coal industry. Perhaps most important among these recent steps, last month President Trump signed legislation to kill the so-called Stream Protection Rule. The action permanently revokes the U.S. Interior Department’s Office of Surface Mining’s Stream Protection Rule (SPR), a regulation finalized in the last days of the Obama administration, which sought to protect waterways from coal mining waste.

Congress approved the killing of the rule via the Congressional Review Act (CRA), a 1996 law seldom used until recently, which allows Congress to end administrative restrictions placed by executive agencies in a prior administration. The CRA further prohibits Congress from passing similar legislation in the future. Although the demise of the SPR does little to directly bolster coal production, it does provide welcome relief from burdensome regulatory requirements for an industry already suffering from regulatory pressure and a market downturn.

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How Will Trump’s Nominee for DOL Secretary Affect MSHA, OSHA?

January was anticipated to mark the beginning of change for the Department of Labor (DOL) and its safety agencies, the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA). President Donald Trump nominated Andrew Puzder as the next secretary of labor, but Puzder withdrew as a nominee. President Trump then nominated Alexander Acosta, a former member of the National Labor Relations Board (NLRB) and former United States attorney.

What changes will Acosta bring? Several factors make it hard to predict those changes: he was a law clerk for the now Supreme Court Justice Samuel Alito; he prosecuted a multitude of white collar fraud and civil rights cases; and while on the NLRB, he garnered praise from both sides of the aisle.

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