CA-Black-Transp

When is an Emergency Emergent?

A recent decision of the Federal Mine Safety and Health Review Commission may have “significantly and substantially” changed the way in which we evaluate penalties associated with MSHA citations. Historically, the commission considers a violation S&S if it is reasonably likely to result in a reasonably serious injury. The question in this case is what does “reasonably likely” mean in the context of a citation issued for violations of regulations that only come into play during emergencies. Companies have historically argued that, since emergencies are not “reasonably likely” to occur, violations of regulations related to emergencies are not “reasonably likely” to lead to an accident. This is precisely the scenario that arose in Cumberland Coal Resources LLP v. Federal Mine Safety and Health Review Commission D.C. Circuit June 7, 2013.

Read more ...

Promise (and Potential Legal Perils) in Better Drug & Alcohol Testing

It is now (thankfully) hard to imagine a time when it was acceptable for miners (and other workers) to openly consume alcohol on the job, and the use of illegal narcotics has (thankfully) never been an accepted practice in mining or among miners. Unfortunately, that does not mean that alcohol and drugs have disappeared from the workplace. In 2008, MSHA noted that “in the mining industry, 13.3% of full-time miners were heavy alcohol users and 7.3% admitted that they used illicit drugs within the past month.”

Read more ...

Is MSHA About to Defy Science, Logic & Law with a New Coal Dust Rule?

MSHA anticipates publishing a final, new coal dust regulation in June 2013. A new exposure limit, proposed in October 2010, contemplates a 50% reduction from the current exposure limit (2 mg/m3) to 1 mg/m3.

Read more ...

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.

Read more ...

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.

Read more ...