MSHA / OSHA

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No aspect of mining and manufacturing operations is more important than preserving the health and safety of a company's workers. Crowell & Moring has a deep bench of health and safety lawyers who are well versed in the challenges and regulatory pressures that these industries face in this area. With lawyers practicing in Washington, D.C., and offices located across the country, we are prepared to assist clients where they operate and at the source of legislative, regulatory, and law-enforcement developments. We have helped our clients shape policy, assisted them in making sound business decisions to assure compliance with federal and state safety and health laws, and represented them on Capitol Hill, in federal litigation, and in practice before government agencies and administrative bodies.

Our MSHA Practice

For more than four decades, Crowell & Moring has represented clients regulated under, and affected by, every aspect of the Federal Mine Safety and Health Act (Mine Act). These include large and small coal and metal/nonmetal mining companies, industry trade associations, synfuel plants, equipment manufacturers, contractors, and company officials threatened with personal civil or criminal sanctions.

We regularly counsel and litigate, for example, challenges to citations and orders of withdrawal issued during Mine Safety and Health Administration (MSHA) inspections, civil penalty assessments, petitions for modification of standards, and mine ventilation and roof plan disputes. On behalf of industry trade associations and individual companies, we draft and submit comments on proposed regulations to MSHA and other appropriate agencies, and prepare and pursue challenges to final regulations in the U.S. courts of appeals.

Our lawyers are adept at handling government investigations and hearings following major mine accidents, in civil and criminal investigations and prosecutions for "willful" or "knowing" violations, and in miner retaliation and compensation claims. We also help prepare industry representatives for testimony before Congress and prepare questions for members of Congress to use at MSHA oversight hearings.

To help supervisory mine personnel fulfill their responsibilities under the law, as well as protect their interests and those of the mine operator during MSHA inspections and enforcement actions, we provide appropriate training and safety and health program audits at mines.

In addition to serving clients' compliance and litigation needs, we have actively contributed to the profession through writing the "Mine Safety and Health" volume of the treatise Coal Law & Regulation (Matthew Bender 1990) and the "Mining Safety and Health" chapter of American Law of Mining 2d (Matthew Bender 2010). We have also delivered numerous papers and speeches for the Rocky Mountain Mineral Law Foundation, the Energy & Mineral Law Foundation, and myriad trade associations around the country.

Our OSHA Practice

We represent clients in industries covered by the Occupational Safety and Health Act, including counseling on the applicability of Occupational Health and Safety Administration (OSHA) standards. Our practitioners routinely conduct comprehensive health and safety audits of major manufacturing facilities and develop onsite health and safety programs. We provide training for clients' in-house regulatory compliance specialists and conduct "shadow audits" to evaluate company audit systems.

Additionally, we participate in rulemakings such as OSHA's effort to develop a general ergonomics rule, and revisions to the asbestos and silica standards. Our experience also includes counseling construction and redevelopment industry clients on the applicability of the OSHA asbestos standard, as well as advising chemical manufacturers regarding the OSHA formaldehyde standard. We have also obtained revisions to fall-prevention standards for major aircraft manufacturers.

We have represented industry clients and associations in many of the seminal health and safety cases. Many of our greatest successes are known only to the client for whom we won the case, resolving the issues before hearings and published decisions ever became necessary.

Representative Engagements

  • Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). Vacated over 3,500 civil citations alleging tampering with coal dust compliance samples.
  • Freeman United Coal Mining Co. v. Fed. Mine Safety & Health Review Comm'n, 108 F.3d 358 (D.C. Cir. 1997). Defined "knowingly" for purposes of individual liability under section 110(c) of the Mine Act and holding that our client Neal Merrifield (current MSHA Administrator for Metal and Nonmetal Mine Safety and Health) was not personally liable for a company's violation when he was a senior corporate official.
  • AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992). Vacated 428 permissible exposure limits.
  • Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987). Defined what constitutes an unwarrantable failure to comply with a mandatory health or safety standard.
  • Drummond Co., 14 FMSHRC 661 (May 1992). Invalidating MSHA's excessive history penalty policy for failure to go through rulemaking procedure.
  • Defending mine operators and key company officials in MSHA proceedings and Congressional hearings following many of the major mine disasters of the last forty years, including Crandall Canyon, Upper Big Branch, Sago, Wilberg, Homer City, Greenwich, Ferrell, Jim Walter Resources, and others.

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Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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