Husch Blackwell Partner Brian Hendrix published an article with Rock Products analyzing why after more than 40 years in operation, MSHA chooses enforcement as its favorite tool. MSHA’s work cycle has always been “inspect, cite, penalize, repeat.” Obviously, MSHA continues to investigate accidents, roll out new regulations, issue guidance, provide compliance assistance, etc., but those

Partner Brian Hendrix recently authored “MSHA’s Current Rulemaking Agenda” in Coal Age. The article outlines the U.S. Mine Safety and Health Administration’s (MSHA) rulemaking plans that include a powered haulage rule, followed by a Respirable Crystalline Silica (RCS) rule.  No details are available on the RCS rule, but it is safe to assume MSHA

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) applicable to employers of 100 or more employees. The ETS requires employers to adopt a soft vaccine mandate obligating employees to either get vaccinated or to undergo regular COVID-19 testing and to wear a face covering at work. OSHA expressly states that the ETS pre-empts all state or local laws that are contrary to the ETS requirements.

The ETS was originally set to be effective on the date of publication in the Federal Register (November 5, 2021), with employees who work for covered employers having until January 4, 2022 to get vaccinated or otherwise comply with the testing/masking requirements. However, on Saturday, November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS.  Hence, it is not currently enforceable with respect to workplaces located in the Fifth Circuit, which includes Louisiana, Mississippi, and Texas.  The stay may also extend to other states across the country, although that is not clear as the court did not specify whether its decision applied nationwide or only to the states under its jurisdiction. Regardless, other challenges to the rule have been filed around the country. Notwithstanding this emergency stay, we advise that employers that would be subject to the rule still consider preparing for enforcement while this matter is being litigated. More details on the rule, if it withstands the legal challenges, are below.

The ETS places the compliance and recordkeeping burden squarely on employers, and it leaves employers to decide whether employees may opt for testing instead of vaccination.  Under the ETS, employers may: (1) require all employees to be vaccinated (except those exempted for religious or medical reasons) l; or (2) require employees to be either vaccinated (except those exempted for religious or medical reasons) or wear a mask and be tested regularly.  The ETS also leaves it up to employers to decide whether the costs of testing and masks will be covered by the employer or by the employees who opt for testing/masking instead of vaccination.

MSHA

The new OSHA rule is not enforceable by the Mine Safety and Health Administration (MSHA) and does not apply to mines regulated by MSHA. MSHA continues to encourage miners to get vaccinated, and mine operators and organized labor are doing the same. MSHA has publicly stated (as recently as last week) that it does not currently intend to issue an emergency standard on COVID.

Continue Reading OSHA Issues COVID-19 Vaccine Mandate for Employers of 100 or More Employees, No Mandate from MSHA

What if you could substitute a renewable battery powered motor for the internal combustion engine just twelve years after its invention? At minimum, we would not be faced with the challenge of limiting greenhouse gas emissions. For all of the benefits the internal combustion engine has brought humanity, its environmental consequences are not among them.
Continue Reading The Argument for Mining Bitcoin from Clean Energy and Waste Energy Streams

Partner Brian Hendrix has published an article for Rock Products explaining MSHA’s focus on Power Haulage Safety. Brian examines the best practices provided by MSHA and offers advice to quarry operators looking to develop and implement a mine-specific plan for powered haulage safety.

For more information, read the article here.

Senior Counsel Coty Hopinks-Baul has published an article in Coal Age titled “CWA’s Permit Shield Spans SMRCA”.

In the article, Coty details a recent decision in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., where the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce

As more renewable energy projects are being developed across the United States, the number of projects in areas that contain active oil and gas and mining operations continues to rise. In the beginning stages of greenfield development projects, the oil and gas and mining operations affecting parcels within the site plan is sometimes overlooked, and if not addressed, these types of interests and operations can cause significant delays and costs when developing and financing a new project. However, some initial research and due diligence at the beginning of a greenfield development project can usually protect the project from these types of issues and costs and assure the project can stay on schedule and budget.
Continue Reading A Time and Cost Saving Measure: Researching Oil and Gas and Mining Operations During the Beginning Stages of Greenfield Renewable Energy Development Projects

Donna Pryor has written an article outlining President Biden’s new OSHA executive order that was published on Safety Law Matters, directing OSHA to issue revised guidance to employers on workplace safety during the COVID-19 pandemic.

The Assistant Secretary of Labor for MSHA was also directed to consider whether any emergency temporary standards on COVID-19

Partner Megan Caldwell recently published “Trump Makes Last Minute Push to Boost Coal, But Biden Presidency’s Vow to Decarbonize Power Generation Causes Concern” in Coal Age, discussing recent and anticipated changes impacting the coal industry as the Trump administration ends and Biden kickstarts his ambitious clean energy agenda.

Read the article here.