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Brian Hendrix

 

Brian, a member of Husch Blackwell’s Energy & Natural Resources group, advises clients on workplace safety and environmental law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling.  He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries.

According to MSHA Assistant Secretary David Zatezalo, MSHA is working to “put the ‘H’ back in ‘MSHA.’” He told Congress over the summer that he is “paying close attention to the ‘H’ in MSHA: miners’ health.” He emphasized that MSHA will “aggressively enforce existing standards to ensure that operators protect miners from exposure to respirable dust and quartz.”

How should MSHA approach complaints about drugs at mines? What questions should an inspector be asking when arriving at the site? How should MSHA investigate? What are the best agency tools to address these cases?

When Secretary of Labor Alexander Acosta testified before Congress earlier this month, he emphasized balancing safety agencies’ legal obligations and commitments with President Trump’s commitment to deregulation. Meanwhile, members from both parties on the Subcommittee of Labor, Health, Human Services, Education and Related Agencies of the House Committee on Appropriations focused heavily on $1.2 billion in proposed budget cuts at the Department of Labor (but not for OSHA or MSHA).

Can mis-steps with OSHA land you in jail? Several recent cases are a reminder that the risk is real. While OSHA rarely makes a criminal case out of safety violations, it does pursue criminal charges when people mislead the agency through false statements, falsified records, or destroyed documents. A company that does not take great care in handling an investigation risks such costly errors, leading to criminal prosecution and stiff penalties under federal law.

With the nomination of Judge Brett Kavanaugh to the Supreme Court, occupational safety and health professionals may be interested in the impact he may have on future cases involving OSHA, the Occupational Safety and Health Act, MSHA, and the Federal Mine Safety and Health Act. Judge Kavanaugh’s testimony before the Senate Judiciary Committee this week has shown him to be thoughtful and very well qualified (not to mention incredibly patient).  At this point, it seems apparent to all that he will soon be confirmed by the Senate.

As the mining industry continues to wait for any new direction at MSHA to reveal itself, last week, MSHA published a request for information (RFI) in the Federal Register that could be the beginning of a new rulemaking on powered haulage equipment. The RFI covers aspects of both surface and underground mines, as well as both coal and metal/non-metal.