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In my last column I talked about a coming shift in the analysis the Federal Mine Safety and Health Review Commission will use when it considers retaliation cases brought by the Secretary of Labor or by miners under § 105(c) of the Mine Act.  For those of you that came in late, here’s the deal:  until very recently, the miner (or MSHA, if they’re stepping in on the miner’s behalf) would have to prove first, that the miner engaged in activity protected by the Act.  Then the miner would have to prove that his employer took adverse action against him (like firing him, or reassigning him to a worse job, things like that).  Finally, the miner would have to prove unlawful motivation:  that is, that the company took the adverse action because the miner had engaged in protect activity.  (There are more details, but you don’t need them for today’s discussion.)  We call that the Pasula-Robinette analysis, after the cases in which it was first articulated.  A few months back, the U.S. Court of Appeals for the Ninth Circuit chose a different analysis for § 105(c) cases, holding that the company’s retaliatory action is unlawful if it would not have treated the miner the way it did but for the miner’s protected activity.  As I told you when we first talked about it, the Ninth Circuit’s decision was undoubtedly going to have an impact on the way the Commission decides § 105(c) cases.  I just couldn’t predict what that impact would be.  (I know, I know.  And here you thought I knew everything there was to know about this sort of thing.  Sorry.)

Welp, we still don’t know how this is going to play out.  But last month a new § 105(c) case came out of the Commission that muddied the waters even further.  That’s the case I want to talk about this month.Continue Reading Wait … What?  A Potentially Dangerous Development in § 105(c) Retaliation Cases

Let me tell you about an experience I had with a Labor Department lawyer earlier this month. It was one of those experiences that made me realize how important it is for those of us in the mining industry to have a good working knowledge of the Mine Act and how enforcement is supposed to work.

I represent a really good client, a company that mines its own materials and uses those materials in construction projects around the community. The construction side of the business is really what they do, with the rock production part being a small but necessary aspect of the operation. They generally have an excellent enforcement record when it comes to MSHA, but it would be a mistake to call them sophisticated mine operators. 

It’s a fine, close-knit group of people, out there doing their best and trying to make a living. Every contact I have with them is positive and reminds me of how much I like the people part of what I do.

One Friday afternoon a while back, some of the folks on the mining side of the operation were welding a new guardrail on the crusher feeder because an MSHA inspector required that as a condition of terminating a citation. They were installing the new guardrail in sections and using the raised bucket of a loader as a physical barricade to provide fall protection for each section that was missing as they advanced along the feeder. 

As they were getting ready to install the last section, MSHA arrived on-site to terminate the earlier citation. The three miners working on the installation were struggling a bit to stabilize the last piece of rail. Just as the inspector and the management representative got to the crusher, the loader operator jumped out of the machine and ran to lend a hand to the miners on the catwalk – leaving the loader unattended and the bucket raised.

You know what happened next. Continue Reading We Have to Know What We’re Doing, Because They Don’t Always Get It

The Federal Mine Safety and Health Review Commission (“Commission”) announced that it intends to withdraw its simplified proceedings rule effective November 25, 2019. The Commission’s Federal Register announcement is found here.

The simplified proceedings were originally published in a final rule by the Commission on December 28, 2010. The Commission’s intention was to streamline…

On Monday, September 30, the Mine Safety and Health Administration (MSHA) reinstated an Obama-era rule imposing heightened requirements for health and safety workplace examinations in surface metal and nonmetal mines. The reinstatement represents yet another volley in an already protracted regulatory process spanning two presidential administrations and multiple lawsuits.

The 2017 Obama-era rule, marking one of the administration’s final acts, required that:

  1. workplace exams had to be completed before miners begin work in the area examined;
  2. operators had to notify miners in the affected areas of conditions that might adversely affect health and safety;
  3. operators had to promptly initiate action to correct those adverse conditions;
  4. the workplace exam records had to include specific information, including, among other things, a description of all conditions found that might adversely affect health or safety and a notation as to when the corrective actions were complete; and
  5. records of the workplace exams had to be made available to MSHA and miner representatives upon request.

The rule initially went into effect on October 2, 2017. Just three days later, however, MSHA withdrew the rule, delaying the effective date to June 2018.

Following the 2017 election, the Trump administration published a revised rule that featured two key changes. First, examinations could be carried out either before work starts or as work was getting underway. Second, exam records no longer had to document adverse conditions, so long as the conditions were promptly corrected.Continue Reading MSHA Announces Reinstatement of 2017 Obama-Era Rule on Workforce Examinations

On July 18, in Hopkins County Coal, LLC v. Perez, the U.S. Court of Appeals for the Sixth Circuit issued an opinion upholding two citations and an order issued to a mine operator, Hopkins County Coal, for its refusal to turn over certain personnel records requested by the Mine Safety and Health Administration (MSHA) during a § 105(c) discrimination complaint investigation. The mine operator challenged the request for the records on several grounds, arguing that the Secretary of Labor overstepped his authority because the records were not among those that the Mine Act requires operators to keep and also that neither the miner nor MSHA had ever told the mine operator what the factual basis was for the miner’s discrimination case.
Continue Reading U.S. Court of Appeals Upholds MSHA’s Right to Obtain Personnel Records from Mine Operators

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Here Stoel Rives shares insight and analysis about key mineral law developments. Drawing on a very active natural resources practice, we aim to keep readers informed about the legal aspects of news that impacts exploration and development of all things mineral.