Mining Matters

It is often said that the Federal Mine Safety and Health Act is a “strict liability” law. As a legal term, “strict liability” means “liability without fault.” But what does that mean? In this episode, Arthur and Chris explain this foundational concept of the Mine Act and then offer real world examples to explain what it looks like. They also explain that, while strict liability poses a challenge to operators who may disagree with enforcement actions, there are caveats to it that may provide relief in certain circumstances.

What challenges are operators facing with MSHA (Mine Safety and Health Administration) in 2025? What can they do about it? In this episode, Chris and Arthur tackle these questions and more with mine safety consultants DJ Schmutz and Kim Redding from MSHA Safety Services Inc. The group discusses challenges posed by inexperienced inspectors, how operators can best position themselves, and what they hope to see from MSHA going forward in a lively discussion.

The Department of Labor recently issued a memorandum announcing the relaunch of the opinion letter program. The memorandum announced that several agencies within the DOL, including OSHA, will offer the public the opportunity to obtain opinion letters to address particular questions regarding compliance. While MSHA is included in the memorandum, it will not be offering opinion letters in this way. Instead, MSHA is offering an “Information Hub,” which is essentially a reconfiguring of information that it already provides. In this episode, Arthur and Chris explain the DOL opinion letter program and call on MSHA to also offer this option to the regulated community in the same manner that OSHA does for general industry.

May is Mental Health Awareness Month and although this episode is publishing in June, there’s never a wrong time to talk about mental health in the workplace. In this episode, Arthur and Chris welcome back Raeann Burgo, attorney in Fisher Phillips’ Pittsburgh office, to discuss the latest in mental health and what it means for employers. Raeann provides an update on trends and issues she’s seeing in this area and the group also discusses a hypothetical situation that an employer may face. We conclude by offering resources and best practices for our listeners to take back to their workplaces.

Employers are faced with unexpected challenges every day. Frequently, the ability to conduct a timely and effective internal investigation will be the difference in managing and responding to situations as they arise. This month, Arthur and Chris welcome Erin Gibson Allen, an attorney and member of Fisher Phillips Workplace Investigations Practice Group to discuss the importance of workplace investigations, how to prepare for them before an incident occurs and how best to execute them when the need arises. The wide-ranging discussion includes specific points for safety and health and offers tips based on experience in the field.

Among the unique features of the Mine Act is the authority for MSHA to pursue both civil and criminal liability against individuals in their capacity as managers. But to get to that point, MSHA will engage in an in-depth investigation triggered by an elevated enforcement action against the company. In this episode, Arthur and Chris review Section 110 of the Mine Act, which authorizes personal liability, and how application of that law looks in the real world. They offer practical pointers for preparing for a 110 investigation, managing the investigation once it begins, and how to handle to possible outcomes that may result.

In a time of uncertainty within the federal government, mine operators can continue to expect regular MSHA inspections. MSHA is statutorily required to inspect all surface mines twice per year and all underground mines four times per year. That won’t change despite other major changes that may occur within federal agencies. With that in mind, this month’s episode of Mining Matters goes back to basics and discusses how mine operators can best position themselves for successful MSHA inspections. Arthur and Chris offer an explanation of key legal concepts that come into play during inspections and practical pointers that come from years of experience.

The new year has brought with it a new administration and changes are on the horizon for all federal agencies, including MSHA. But what can mine operators reasonably expect from the new regime? In this episode, Chris and Arthur offer their thoughts on what may and may not change from MSHA in the new administration. They also offer tips on what to look for in 2025 as new leadership at the agency takes shape.

A mine operator who inadvertently misses the deadline for contesting a proposed penalty assessment is not without recourse. To proceed with a contest after a missed filing deadline, the operator must first file a Motion to Reopen Proceedings with the Review Commission. Upon a showing of good cause that the contest date was missed due to “mistake, inadvertence, surprise or excusable neglect,” the Review Commission may grant the Motion and allow the case to proceed. Historically, the Review Commission has typically granted these Motions when such a showing is made. Recently, however, a trend has developed where the Department of Labor solicitors are opposing many Motions to Reopen and the Review Commission is denying more than ever. 

In this episode, Arthur and Chris discuss the basics of Motions to Reopen and how obtaining relief via such Motions has become more difficult of late. They also offer practical tips on how to avoid needing to file a Motion to Reopen in the first place and how to best position yourself for success if the need to file a Motion arises.

Earlier this year, the Supreme Court issued a bombshell of a decision in Loper Bright Enterprises et al. v. Raimondo, overturning the longstanding Chevron standard for interpreting ambiguous statutory terms. But while the Court relegated Chevron to the dustbin of history, it did not offer a roadmap for how statutory interpretation will look going forward.  While all of this may seem academic, it has significant practical implications for mine safety. In this episode, Chris and Arthur discuss the Loper Bright decision and offer their thoughts on what this may mean in the area of mine safety going forward.