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In a recent decision, the U.S. Court of Appeals for the 6th Circuit dismissed the mining industry’s challenge to the Mine Safety and Health Administration’s (“MSHA”) recently revised pattern of violations (“POV”) rule concluding that the Court lacked authority to hear the claim.

Yesterday, MSHA announced a Proposed Rule to revise the criteria and procedures for assessment of civil penalties under the Federal Mine Safety and Health Act ("Mine Act"). The Proposed Rule will significantly alter the evaluation of citations and will have an impact on all mine operators that receive citations. MSHA released a brief Fact Sheet describing the proposed changes, which we have also summarized below. Rather than using the current 208-point scale (Section 100.3(g)), MSHA's Proposed Rule would convert the Penalty Conversion Table to a 100-point scale, with different relative weights for each criteria.

I don't want to count my chickens before they hatch, but this week the mining industry received a late Christmas present in the form of proposed secured funding for FY 2014 state grants program. You may recall my brief mention of MSHA's proposal to de-fund the state grants program and shift the allocated funds to the enforcement budget in my prior posts - "Tri-State Meeting is a Success" and "It's Not About Safety, It's About Compliance". Essentially, the state grants program provides funding to states (typically government agencies and non-profits) to provide training to miners in that state. From my experience, there is a huge benefit to mine safety based on a focus on and committment to training, and the state grants program is a big part of that in many states.

Recently, at the SE Mine Safety and Health Conference, Sam Pierce, the new District Manager for the Mine Safety and Health Administration's (MSHA) Southeast District, provided the mine industry with a two-page handout titled "ABC's of Inspecting." (Attached below). Mr. Pierce indicated that he has distributed this to the field offices in the SE District and expects his inspectors to live up to the principles outlined in the handout. Mr. Pierce should be applauded for his efforts to improve MSHA's inspection process by setting out common sense guidance for MSHA Inspectors. Beyond its undoubted usefulness for Inspectors, however, mine operators should take time to review the handout and ensure that these tools are being incorporated into day-to-day operations at their facilities. While most mine safety professionals I have met are already doing the things I discuss below, your committment to health and safety is a daily task and there is always room for improvement.

On December 23, 2013, the Federal Mine Safety and Health Review Commission ("Commission") issued its decision in a case resulting from the explosion that occurred at the Sago Mine in 2006. MSHA alleged that the mine operator's failure to immediately notify (within 15 minutes) MSHA of the accident (as required by 30 C.F.R. § 50.10). The dispute in this case was whether the Inspector's designation of high negligence and unwarrantable failure was ...

We wanted to let you know about the next 3 editions of Workplace Safety Wednesdays so that you are able to save the dates for you calendar. There are some great topics coming up, so please feel free to register by clicking the links below and share this information with your friends and colleagues!

Yesterday, the Court of Appeals for the 6th Circuit denied the mining industry's request to stay implementation of MSHA's new POV final rule, pending its review of the rule. Essentially, the Court of Appeals found that enforcement of the rule would not cause irreparable harm to the mining industry during the pendency of the appeal.

Last week, I hosted the first edition of Fisher Phillips’ new monthly webinar series – “Workplace Safety Wednesdays.” I discussed recent decisions of the Federal Mine Safety and Health Review Commission, MSHA's new Miners' Rights Guide, updates to the HazCom standard, and other topics of interest. I hope you were able to attend and enjoyed the webinar as much as I did.

MSHA announced on September 25, 2013, the release of a new Guide for Miners' Representatives. According to MSHA, this Guide is a "comprehensive tool" that expands upon the Guide to Miners' Rights and Responsibilities, released in June 2011. Assistant Secretary Joseph A. Main stated "A good safety and health program depends upon the active participation and interest of everyone at the worksite. In order to help decrease workplace deaths, injuries, and illnesses, miners and their representatives must have sufficient knowledge of their rights so that they can fully and properly exercise them." MSHA provided more detailed information about: reporting hazardous conditions and imminent dangers, accident investigations, understanding the elements of discrimination under Section 105(c) of the Mine Act, health and safety training, petitions for modification of a safety standard, rights to information and records, civil penalties and requests under the Freedom of Information Act.

After a more contentious meeting during the Congressional Field Hearing, MSHA agreed to meet with the mining industry in a less formal setting to discuss ideas to build a better partnership between the Agency and the industry. On Thursday, August 22, 2013, members of the North Carolina Aggregates Association (NCAA), Mining Association of South Carolina (MASC), and Virginia Transportation Construction Alliance (VTCA) met with Marvin Lichtenfels, Acting Administrator for Metal/Non-Metal, Sam Pierce, Acting District Manager for SE District (until September), and Doniece Schlick, Acting District Manager for SE District (beginning in September). There were many great ideas proposed at the meeting, some of which MSHA has agreed to consider and/or implement in the near future.

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