With the ongoing lapse in federal funding, much of the federal government is not working. This has a direct impact on MSHA (Mine Safety and Health Administration). While inspection and investigation activity continues, other functions at MSHA are not operating. So, what are mine operators to do? In this episode, Arthur and Chris review what the federal shutdown means for operators, what ongoing responsibilities remain, and how mine safety personnel can best proceed during this unusual time.

Mine operators are familiar with the process of inspectors visiting the mine to ensure that a cited condition has been abated. But what if operators could demonstrate abatement by sending information to MSHA (Mine Safety and Health Administration) instead of having inspectors return? This process is typical in the OSHA context and was recently raised as a possibility for MSHA. In this episode, Arthur and Chris explore this possibility for MSHA, what challenges it might pose and what questions would need to be answered if it is rolled out.

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.

In this episode, Chris and Arthur discuss one of the discretionary tools in MSHA’s toolbox: impact inspections. Although not new, impact inspections have made a comeback recently with the current MSHA regime. While MSHA is authorized to conduct impact inspections at any time and at any mine, if unprepared, an operator facing an impact inspection could find itself in a precarious position. This episode reviews what an impact inspection is, what steps MSHA may legally take, and what safeguards it must afford mine operators. It also discusses how operators can best prepare in case this surprise event becomes a reality.

For the past two years, the Mining Matters podcast has welcomed Raeann Burgo, a partner in Fisher Phillips’ Pittsburgh office, to discuss mental health in the workplace and how mine operators can put steps to promote mental well-being into action. These episodes are among our most downloaded in the podcast’s history. This year, Arthur and Chris welcome Raeann back to provide an update on mental health in the workplace, with particular emphasis on safety and health. They also discuss some new resources offered by both OSHA and, for the first time, MSHA, in the area of mental health. The group continues to provide actionable steps that employers can put into practice in their workplace.

The Mine Act contains a robust whistleblower provision that affords certain rights to miners and prohibits certain actions by employers. But like all laws, Section 105(c) contains specific nuances. In this episode, Arthur and Chris will review Section 105(c) of the Mine Act and discuss each element of a whistleblower claim. They will also discuss what it looks like in real life when a whistleblower claim is filed and investigated. Finally, they will offer practical tips for employers to be mindful of considering this important legal provision.

Among MSHA’s most onerous requirements is that mine operators must report an “injury with a reasonable potential to cause death” to the agency within 15 minutes. But, what is an “injury with a reasonable potential to cause death?” Neither the Mine Act or MSHA’s regulations provide any definition. And caselaw points in different directions. A recent Review Commission decision, where the Commissioners split 2-2 in result, highlights this uncertainty. In this episode, Arthur and Chris review the law surrounding the immediate notification requirement, discuss the recent Review Commission decision, and offer tips for operators to navigate this confounding but critical requirement.

MSHA released its long-awaited rule on surface mobile equipment just before the end of 2023. The rule, which applies to both the coal and metal/non-metal sectors, will require operators to develop safety programs on surface mobile equipment, designate responsible persons to oversee those programs and update them at least annually. Operators can expect MSHA inspectors to review their programs during regular inspections. In this episode, Chris and Arthur review the particulars of the new rule and offer insights as to what it may look like in practice. They also offer tips for operators to prepare for the rule’s implementation both for the July 19 compliance date and for ongoing compliance after that.

In early December, MSHA released its mine safety data for FY2023, ending September 30, 2023. The data includes a look at the number of mines and miners, as well as enforcement trends and accident and injury numbers. MSHA also provides a 7-year look back for similar information. What does all this data mean? In this episode, Chris and Arthur decipher these numbers and discuss these numbers and how this data compares to recent years, as well as current mine safety and health industry trends. Finally, in addition to MSHA’s numbers, Fisher Phillips’s MSHA Violations Tracker includes a comprehensive dataset of violations that have occurred since January 1, 2022 as reported by the Department of Labor.

In this episode, Arthur and Chris welcome a special guest, Joseph Riney, Vice President of Operations at the Nevada Mining Association to discuss how the association works to represent its members' interests in public policy and mine safety. The group discusses a wide range of issues, including educating Nevadans about the mining industry, the current state of mine safety policy, and developments that may be on the horizon. The group also considers how mine operators can take part in their own state associations, participate in the rulemaking process, and monitor new policy initiatives as they unfold. This lively discussion emphasizes the impact that these developments have on the day-to-day work toward mine safety throughout the state of Nevada and the country.

The D.C. Circuit Court of Appeals issued its long-awaited decision regarding whether MSHA has jurisdiction over a trucking company’s facility that exists off mine property. And while many expected the Court to provide meaningful guidance on MSHA’s jurisdictional reach to non-mining companies and non-mine locations, the Court’s decision actually answers very little. Instead, the Court asked MSHA to further consider certain issues, presumably setting up a second round of litigation. In this episode, Arthur and Chris discuss the important jurisdictional issues in the case, the significance of the Court’s decision and what we can expect going forward.