Mining

Recent, high-profile investigations and trials featuring mine safety issues have done little to relieve the pressure on mining companies in other areas: mineral rights, regulatory compliance and litigation, clean air and clean water issues (including permitting), and hazardous waste management, among other matters.

Crowell & Moring's mining practice comprises a deep bench of lawyers who are well versed in the business challenges and regulatory pressures facing the industry. 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 laws, and represented them on Capitol Hill in federal litigation and in practice before government agencies and administrative bodies.

MSHA and OSHA

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 (MSHA) and the related Occupational Safety and Health Act (OSHA). Clients include large and small coal and metal/nonmetal mining companies, industry trade associations, synfuel plants, equipment manufacturers, contractors and company officials threatened with civil or criminal personal sanctions.

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

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.

Environmental Compliance and Litigation

Crowell & Moring lawyers are well versed in the complex permitting requirements facing mining industry participants. Our experience with the U.S. EPA, the Department of the Interior, and other federal and state agencies enables us to counsel clients through all aspects of permitting mine facilities on federal lands, federal land exchanges to facilitate mine development, and the defense of mine permitting and land exchange actions in administrative and judicial appeal proceedings. We have deep knowledge of the implications of the National Environmental Policy Act (NEPA) and the Endangered Species Act (EPA) on mining projects.

We work closely with clients to develop and implement environmental management systems and compliance auditing programs that include reviews of applicable legal requirements and industry standards, site assessments, due diligence inquiries, and training and awareness programs for EHS coordinators, plant personnel and senior management. When clients are notified of potential violations of Clean Water Act, Clean Air Act, and CERCLA (Superfund) requirements, we strike a balance between aggressive defense of our clients interests and working cooperatively with government officials to minimize cost recovery and natural resources damages claims.

Mineral Rights, Mining and Reclamation

We assist companies in acquiring and exercising rights to federally owned minerals and in the conduct of mineral exploration and development operations on public lands. We have particular experience in the Surface Mining Control and Reclamation Act (SMCRA), and have represented industry associations and mining companies in virtually all national rulemaking litigation that has arisen under the Department of the Interior's implementation of the statute.

In particular, we have litigated issues involving the procedural rules governing administrative appeals of enforcement actions and permit modifications, regulations concerning stream buffer zones and the creation and disposal of excess spoil and coal mine waste, and matters such as state primacy, subsidence, valid existing rights, mountaintop mining, offsite support facilities, and hydrology.

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 Matters

  • 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 § 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 (PELs).
  • 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). Invalidated MSHA's excessive history penalty policy for failure to go through rulemaking procedure.
  • We defended the mine operator or key company officials in the MSHA proceedings or 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.