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DC Circuit Dismisses CERCLA Financial Assurances Challenges

Posted By Mark Ellis, Monday, July 22, 2019

In a significant victory for the mining industry, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit recently dismissed challenges filed by six environmental groups of EPA’s decision not to require financial assurances for hardrock mining facilities under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund).  A copy of the decision is attached.

In its final rule, issued in February 2019, EPA ultimately agreed with those opposed to the rule proposed during the Obama Administration, including IMA-NA, and decided that the hardrock mining industry sector does not present Superfund risk of sufficient degree and duration to merit financial responsibility requirements.

The Court concluded that EPA’s decision was entitled to “Chevron” deference because the applicable CERCLA provisions addressing the “risk” to be addressed were ambiguous and EPA’s interpretation of that ambiguity was reasonable.  Nothing in 42 U.S.C. §9608(b) [section 108(b) of CERCLA] mandates EPA to promulgate financial assurance requirements for the hardrock mining industry, thereby authorizing EPA to decline to do so.

The Court also concluded that EPA’s decision was not arbitrary and capricious.  EPA recognized that existing federal and state programs have minimized the need for EPA’s expenditures to respond to CERCLA-like releases and reduced the risk of federally financed response actions to a low level.  The Court also found that EPA’s consideration of economic impacts was reasonable and deferred to its analysis.  Finally, the Court concluded that EPA did not act arbitrarily and capriciously by choosing not to promulgate financial assurances for the hardrock mining industry because refraining to do so was always a foreseeable possibility.

The case is subject to a petition by a rehearing of the full court, but such petitions are not favored.

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Tags:  CERCLA  EPA  finacial responsiblity requirements  hardrock mining 

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UMWA/USW Letter to MSHA on Respirable Crystalline Silica

Posted By Mark Ellis, Friday, July 12, 2019

Please find below a hyperlink to a letter recently sent to Assistant Secretary of Labor for Mine Safety and Health David Zatezalo, essentially amounting to a request for rulemaking on respirable crystalline silica.  The joint letter was sent by Cecil Roberts, President of the United Mine Workers of America, and Leo Gerard, President of the United Steel Workers.  The letter begins with an extensive review of reports of increased incidence of progressive massive fibrosis in underground coal miners, an advanced and irreversible form of silicosis.  It also explores an increased incidence of silica-related disease in other mining sectors.  Among the requests to MSHA made in the letter:

·         Lower the allowable concentration limit of silica;

·         Require the use of NIOSH’s new end-of-shift silica sampler;

·         Sample more miners;

·         Address high silica cutting situations; and

·         Work closely with the medical community.

The five-page letter closes by stating that the time for action is now.  The unions also expressed their willingness to work with other stakeholders to protect our nation’s miners from these debilitating and deadly diseases.

Whether or how Assistant Secretary Zatezalo intends to respond to the letter is yet to be seen, but we anticipate that these issues will be broached in the anticipated Request for Information MSHA intends to issue on respirable crystalline silica, or in the responses to it

https://www.usw.org/assets/pdfs/Joint-BL-Letter-CER-Signed3.pdf

 .

 

Tags:  Respirable Crystalline Silica  RFI  UMWA  USW 

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NIOSH Technical Report on Occupational Exposure Banding

Posted By Mark Ellis, Thursday, July 11, 2019

The National Institute for Occupational Safety and Health (NIOSH) recently released a technical report that provides the background, rationale and instructions for the occupational exposure banding process and gives guidance for risk managers to identify control levels for chemicals without authoritative occupational exposure limits (OELs).  According to the U.S. EPA, the Toxic Substances Control Act Chemical Substance Inventory currently contains over 85,000 chemicals that are commercially available, yet only about 1,000 of these have been assigned an authoritative (government, consensus or peer-reviewed) OEL.  The rate at which new chemical substances are being introduced into commerce significantly outpaces OEL development, creating a need for guidance on thousands of chemical substances that lack reliable exposure limits.  The technical report contains an e-tool as a supplementary online application that provides users with an automated means to band chemical substances.  The technical report contains an introduction, titled “Occupational Exposure Banding at a Glance” on pages vii-xi.

 

The NIOSH technical report, DHHS (NIOSH) Publication Number 2019-132, can be accessed here.

 

The NIOSH portal page for occupational exposure banding can be accessed here.

 

The NIOSH press release announcing publication of the technical report can be accessed here.

Tags:  NIOSH  occupational exposure banding  OELs 

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NIOSH’s Haas is Finalist for Service to America Medal

Posted By Mark Ellis, Wednesday, June 26, 2019

NIOSH behavioral scientist Emily Haas, Ph.D., is a finalist for a Service to America Medal – commonly known as a “Sammie,” in the Safety and Law Enforcement category.

Please consider voting for Dr. Haas for the Sammie’s People’s Choice Award, which is chosen by popular vote on the following link:  https://servicetoamericamedals.org/peoples-choice-award/.  Supporters can vote once a day from any device through July 8.

Dr. Haas is an internationally recognized behavioral scientist whose work in safety culture and safety management systems has directly contributed to preventing occupational illnesses and injuries in the mining industry.  In two years’ time (from 2016 to 2018), she conducted field research involving nearly 2,700 mine workers at 40 different mines in 17 states and internationally that resulted in mining companies tailoring their health and safety management methods and processes to better prepare their workers, improve worker performance and reduce injuries.  Dr. Haas collaborated with IMA-NA on the recent Second Edition of the Dust Control Handbook for Industrial Minerals Mining and Processing (https://www.cdc.gov/niosh/mining/works/coversheet2094.html).

You can learn more about Dr. Haas and the Sammie award on the following link:  https://www.cdc.gov/niosh/mining/features/HaasSammieFinalist.html.

Tags:  Dust Control Handbook for Industrial Minerals Mini  NIOSH 

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Nominations Encouraged for NIOSH Technology Innovations Award

Posted By Mark Ellis, Tuesday, June 18, 2019

Reminder:  The National Institute for Occupational Safety and Health (NIOSH) currently is accepting nominations until July 1, 2019, for the Mine Safety and Health Technology Innovations Award for Industrial Minerals.  The award and nominations are described in the attached flyer.  More information on the award and the nominations process can be accessed through the following link:  https://www.cdc.gov/niosh/mining/content/innovationsawards.html.

NIOSH has not received any nominations to date, which is a shame.  While NIOSH is not compelled to recognize a recipient in any given year, not having received any nominations to date suggests that anyone who submits a nomination stands a very good chance of being favorably considered for the award.  This is a prestigious and handsome award.  If your company or one of its operations recently has implemented an innovative technology or process to address, and hopefully resolve, a safety or health challenge, you should consider self-nominating.

 Attached Files:

Tags:  Technology Innovations Award 

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SCOTUS Upholds Virginia Ban on Uranium Mining

Posted By Mark Ellis, Tuesday, June 18, 2019

This week the Supreme Court issued a split decision holding that Virginia’s decades-old ban on uranium extraction does not conflict with federal law that puts the federal government in charge of safety oversight for uranium and other radiological materials.  Virginia Uranium Inc., a company intent on developing what may be the largest untapped uranium deposit in the country, challenged Virginia’s 1982 prohibition arguing that the Atomic Energy Act of 1954 gives the Nuclear Regulatory Commission exclusive oversight over radiation safety issues.  While the court acknowledged that the Act gives the NRC significant authority over the milling, transfer, use and disposal of uranium, as well as the construction and operation of nuclear power plants, it is silent about its authority over the extraction of uranium.  In the absence of federal preemption, that silence gives Virginia law preeminence.  The decision upheld federal district court and U.S. Court of Appeals decisions that previously held in Virginia’s favor.

The decision is attached.

 Attached Files:

Tags:  state mining ban 

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DC Circuit Vacates MSHA's 2018 Exam Rule Amendment

Posted By Mark Ellis, Thursday, June 13, 2019

In a decision handed down earlier this week, the U.S. Court of Appeals for the District of Columbia Circuit vacated MSHA’s 2018 amendment of the agency’s 2017 final rule governing examinations of working places in metal and nonmetal mines (see attached).  The successful challenge was filed by the United Steelworkers and the United Mine Workers unions.

You may recall that from 1979 to 2017, MSHA required operators of metal and nonmetal mines to designate a competent person to examine each working place at least once each shift for conditions that may adversely affect safety or health.  The examination could occur anytime during the shift.  Operators were required to keep a record of examinations that were conducted.

In 2017, MSHA decided to impose more stringent requirements.  A competent person now needed to examine each working place at least once each shift before miners begin work in that place.  The new rule also required that the record of the examination include a description of each condition found that may adversely affect the safety or health of miners.

In April 2018, MSHA promulgated a final rule amending the 2017 rule.  Under the 2018 amendment, a competent person must examine each working place at least once each shift before work begins or as miners begin work in that place.  The 2018 amendment also modified the recordkeeping requirement, mandating that a record of the examination shall include a description of each condition found that may adversely affect the safety or health of miners and is not corrected promptly.

The unions challenged the 2018 amendment on the grounds that it violated the Mine Act’s “no-less protection” standard.  The Mine Act provides that “[n]o mandatory health or safety standard . . . shall reduce the protection afforded miners by an existing mandatory health or safety standard.”  Court found that the 2018 amendment does not allow for notification before exposure.  Notification as soon as an adverse condition is discovered results in a diminution of safety or health.  The Court also found that MSHA failed in the 2018 amendment to offer a reasoned explanation of why the examination and recordkeeping requirements of the 2018 amendment satisfy the “no-less protection” standard.

The Court vacated the 2018 amendment, which automatically resurrected the 2017 final rule.  The Court nevertheless ordered MSHA to reinstate the 2017 rule.  We expect that MSHA will do so in due course.  In the meantime, prudence dictates that operators follow the 2017 final rule (see attached).

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 Attached Files:

Tags:  examinations of working places; U.S. Court of Appe  MSHA 

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Trump Administration Acts to Reduce Dependence on Foreign Critical Minerals

Posted By Mark Ellis, Friday, June 7, 2019

Earlier this week, the Trump Administration released a government-wide action plan to implement the next phase of the initiative to reduce dependence on critical minerals.  The Commerce Department issued an interagency report titled, “A Federal Strategy to Ensure a Reliable Supply of Critical Minerals.”  This detailed strategy calls on federal agencies to implement important recommendations that will strengthen America’s critical mineral supply chains and defense industrial base, ensure faster permitting times and study the feasibility of allowing mineral projects to be included as part of FAST-41, improve surface and subsurface mapping in order to help identify new critical mineral deposits, improve access to domestic critical mineral resources on federal lands and grow the American critical minerals workforce.

 

To reduce unnecessary permitting delays and increase access to critical minerals, the Bureau of Land Management (BLM), which is responsible for onshore mineral rights and mining on lands managed by BLM, will undertake a comprehensive review of its permitting and land classifications, as well as its management plans.  In addition, the U.S. Geological Survey (USGS) will conduct at least one multi-commodity critical mineral resource assessment every two years, supplying the results to Federal land managers and the public.

 

A copy of the interagency report is attached.

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Tags:  critical minerals; Executive Order 13817 

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Nominations Being Accepted for NIOSH Technology Innovations Award

Posted By Mark Ellis, Monday, June 3, 2019
Updated: Monday, June 3, 2019

The National Institute for Occupational Safety and Health (NIOSH) currently is accepting nominations until July 1, 2019, for the Mine Safety and Health Technology Innovations Award for Industrial Minerals.  The award and nominations are described in the attached flyer.  More information on the award and the nominations process can be accessed through the following link:  https://www.cdc.gov/niosh/mining/content/innovationsawards.html.  The award for industrial minerals will be presented in conjunction with the IMA-NA Annual Meeting, September 24-26, 2019, in Stevenson, WA (located just outside of Portland, OR)(https://www.ima-na.org/events/EventDetails.aspx?id=1223867).  IMA-NA strongly encourages you to consider self-nominating your company or one of its operations for the award.

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Tags:  NIOSH  safety and health  Technology Innovations Award 

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IMA Statement on Meeting in Washington, DC

Posted By Chris Greissing, Thursday, May 30, 2019

The IMA-NA is coming off one of our most successful Washington, DC, meetings.  The meeting was held May 21-23, and featured many of the top Trump Administration officials speaking to our members, including: Secretary of the Interior David Bernhardt, U.S. EPA Administrator Andrew Wheeler, Assistant Secretary for Mine Safety and Health Dave Zatezalo, Senator Tom Carper and Congresswoman Liz Cheney.  We also had key talks on ways we can work more collaboratively with the American Trucking Association and Glass Packaging Institute.  Earlier in the week, we met with key staff at the White House and Agencies, along with Senators, Congressmen and key staff as part of our annual Hill Day. 

If you weren't able to make it this year, we hope that you will be able to get our meeting next year on your calendars and attend! 

In the meantime, please be on the lookout for information on registering for the IMA-NA Annual meeting in the next few days.  It is going to be held at the Skamania Lodge in Stevenson, Washington.  It is about 30 minutes outside of Portland, Oregon, and has stunning views of the Columbia River. 

The official statement on the meeting in Washington, DC is attached.

 Attached Files:

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