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Are You Ready for Your Next Safety Complaint?


Safety-conscious mine operators train their employees to report potential hazards. Yet, such reports can sometimes lead to one of the most contentious and sensitive issues mine operators have to handle: a miner’s claim that the operator retaliated against him for complaining about safety concerns. MSHA is enforcing such whistleblower claims now more than ever. There are, however, some common-sense steps that diligent operators can take to lower the chances that a safety complaint becomes a discrimination case.

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How to Deal with MSHA’s New Pattern of Violations Rule

On January 17, 2013, MSHA announced a final rule revising MSHA’s Pattern of Violations (POV) regulations in 30 C.F.R. Part 104. According to MSHA, “the final rule simplifies the existing POV criteria, improves consistency in applying the POV criteria, and more effectively achieves the Mine Act’s statutory intent.” The catch? The final rule, which takes effect in March, allows MSHA to issue a POV notice without first issuing a Potential POV (PPOV) notice and review (thus eliminating the 90 day improvement period) and eliminates the existing requirement that MSHA must consider final orders in its POV review.

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What Now?

The elections are over and the new Congress is soon to be sworn in. Given that the president was re-elected and the Congress appears to be almost a carbon copy of the last, one would expect “déjà vu all over again.” Given the most recent developments, however, it doesn’t look like that’s going to be the case. I keep waiting for the voice to say “but wait, there’s more.” The biggest problem is that we don’t yet know what it is, but the early signs are not encouraging.

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MSHA Paperwork Audits Push Legal Limits

The Federal Mine Safety and Health Review Commission recently issued an unprecedented decision permitting MSHA to demand the production of employment and medical records from mine operators in conjunction with an audit of the mines’ injury and accident reports.

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Diesel Exhaust in Miners Study Clouds the Air

Since the mid-1990s, diesel engine and emission control technology has improved significantly as the Environmental Protection Agency (EPA) has imposed ever-tightening emission control and fuel standards pursuant to its Clean Air Act authority. In its most recent nonroad diesel rulemaking, the EPA estimated that standards imposed for nonroad land-based diesel engines typically used in construction, agricultural, industrial and mining operations will achieve particulate matter (PM) reductions in excess of 95%. As a result of a variety of programs, including access to funding under the Diesel Emissions Reduction Act, the EPA’s National Clean Diesel Campaign is effectively addressing older diesel engine emissions without resorting to new job-killing regulation.

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