Where Employment Law Meets MSHA: Practical Tips to Avoid Whistleblower Claims

All operators are familiar with the rights afforded to all miners under the Mine Act. For example, all miners (hourly or salaried) have the right (1) to file or make a complaint to the agency, the operator or a miner’s representative; (2) to participate in proceedings under the act such as testifying in a proceeding; (3) to withdraw themselves from the mine for not having the required health and safety training; and (4) refuse to work in unsafe conditions. These acts are considered “protected activity” under the Mine Act. Miners who feel they have been discriminated against for engaging in this activity can file a complaint under Section 105(c) of the act.

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Clinton’s and Trump’s Plans for Coal and Other Energy Sources

As the presidential election season enters its final, frenzied phase, it has become readily apparent that once-elected either of the two candidates will have a monumental impact on the nation’s energy future. Although Democrats and Republicans traditionally differ on their energy views, policy experts have stated the sharp disconnect between Hilary Clinton’s and Donald Trump’s plans concerning energy and climate change is nothing short of historic. Clinton’s energy plan prioritizes investing in and incentivizing renewable-energy technology to help create jobs and transition the United States to a lower-carbon economy. Trump, meanwhile, calls Clinton and her energy plan extremist, and his “America First” energy plan focuses primarily on the country’s energy independence and growth in fossil fuel production and use.

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No CERCLA Liability for Air Emissions

Being held liable for cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is rightly a significant concern for companies in the mining industry. There is no statute of limitations on CERCLA liability, so disposal considerations can have a long-lasting impact on a company’s bottom line.

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Supreme Court Sides With Landowners in CWA Decision

The industry has long known that the process for obtaining a Clean Water Act (CWA) Section 404 permit to discharge dredged or fill material into the “waters of the United States” can be, to say the least, both painful and expensive with no guarantee that a permit will ever be issued. However, the U.S. Supreme Court’s recent decision in U.S. Army Corps of Engineers v. Hawkes Co. Inc. should come as welcomed news. In that decision, the court ruled that property owners have the right to seek judicial review of jurisdictional determinations (JDs) regarding “waters of the United States” under the CWA. The decision both reins in the federal government’s regulatory jurisdiction under the CWA and signals the Supreme Court’s willingness to limit expansion of the CWA’s “ominous reach.”

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Figures Don’t Lie

By Mark Savit

Not that long ago, the Mine Safety and Health Administration (MSHA) argued strenuously that it needed to broaden the potential reach of its Pattern of Violations (POV) rule. It based its argument primarily on the fact that the previous rule required MSHA to rely on citations that had already become final, rather than relying on citations as issued, before placing a mine on the POV list. Also that the provision allowing mines to be placed on the Potential POV (PPOV) list before being actually put into the program was too lenient, allowing mines to temporarily change violation patterns only to allow them to slip back into old patterns after the monitoring period was over.

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