Legally Speaking - December 2017

One-size Regulation Doesn’t Fit All? Consider a Modification

In recent years, a number of our clients have faced Mine Safety and Health Administration (MSHA) inspectors writing citations based on new interpretations of old standards. Sometimes, the district office rubber-stamps these new “rules” — and sometimes, these seem like district initiates. When the changes demanded by the MSHA to equipment or operations are significant, it is not uncommon for the mine operator to believe the changes actually would decrease, rather than increase, safety. Other times, the operator may believe its approach is at least as safe, and achieves the same goal, as the standard.
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Legally Speaking - October/November 2017

Confirmation of MSHA Nominee Seems Likely
In the September “Legally Speaking” column, Washington D.C., defense counsel Avi Meyerstein discussed his top 10 list of needed Mine Safety and Health Administration (MSHA) reforms derived from his history of contested cases:
1. Stress safety priorities;
2. Seek consistent regulatory applications without improper changes;
3. Accept clear and historically recognized compliance mandates;
4. Require meaningful district manager citation validity conferences;
5. Appoint a powerful MSHA headquarters ombudsman;
6. Require inspector mitigating circumstances information collection and training;
7. Enhance inspector enforcement training;
8. Require human factor accident analysis, including drugs and alcohol;
9. Recognize agency achievements since 1978; and
10.Adopt efficiency and effectiveness tools to build on achievements, recognizing the steep reduction in the number of mines.

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Legally Speaking - September 2017

MSHA Changes Could Make a Real Difference

As the Mine Safety and Health Administration (MSHA) gets new leadership, what changes are in store? Over 40 years, technologies, safety records and industry economics have changed dramatically, but MSHA has not always kept up.
Here are some suggestions that could make a difference.

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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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