Unwarrantable Failures: Evaluation of the Causes and Effects – [Webinar Recording]

On November 7, 2018, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar which covered Unwarrantable Failures: Evaluation of the Causes and Effects.

Unwarrantable Webinar Snip

Whether having received one, been threatened with one by an inspector, or heard of an issuance to another company, most operators have at least heard the terms 104(D) or Unwarrantable Failure. These are some of MSHA’s most powerful enforcement tools, and the stakes for additional enforcement and liability significantly increase after the issuance, in addition to the penalties. This webinar will review the definition of Unwarrantable Failures, both through MSHA regulation and guidance and the cases that govern them.

During this webinar, participants learned about:

  • What is an unwarrantable failure, and how and why these are issued by MSHA;

  • The criteria that must be evaluated when determining whether or not to classify a violation as an unwarrantable failure; and

  • Potential effects of receiving an unwarrantable failure, including explanation of the “D-Chain” and agent liability concerns under Section 110.

Here is a link to a recording of the webinar with slides and audio. This was the sixth and final webinar event in the 2018 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the 2019 Webinar Series, which will be released before the new year.

2018 Webinars

Responsibilities and Regulations with Independent Contractors under MSHA – [Webinar Recording]

On September 26, 2018, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar which covered a Responsibilities and Regulations with Independent Contractors.

Contractvor Webinar Screen Shot

Independent contractors continue to be an integral part of the mining industry. While contractors work at mines across the country each day without issue, production operators and contractors must be aware of the delineation of liability and responsibility when working together. Not only are there concerns of enforcement liability with MSHA for the actions of each company upon the other, but civil litigation exposure in the event of accidents or injuries. This webinar will review the delineation of responsibilities for each operator on a site, both production and independent contractor, and provide strategies for working cooperatively while protecting each company’s interests.

During this webinar, participants learned about:

  • Liability under the Mine Act for all operators working at a mine;

  • MSHA’s ability to cite both companies for the violations of the one operator; and

  • Best practices for working together and allocation of responsibilities on site.

Here is a link to a recording of the webinar with slides and audio. This was the fifth webinar event in the 2018 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the remaining 2018 webinar Unwarrantable Failures: Evaluation of Causes and Effects on Wednesday, November 7th at 1:00 pm ET

2018 Webinars

FMSHRC Reverses Judge’s Interpretation of MSHA Suspended Loads Standard, But Upholds Citation

By: Nicholas W. Scala

On April 25, 2018, the Federal Mine Safety and Health Review Commission (“FMSHRC” or “Commission”) released a long-awaited decision in the appeal of MSHA v. Sims Crane “spreader bar” case. This follows a May 2016 ruling by an FMSHRC Administrative Law Judge (“ALJ”). The ALJ held that, for the purposes of standard 30 C.F.R. 56.16009, a spreader bar was considered a suspended load, and therefore it was a violation for a miner to be beneath a spreader bar at any time (For a more detailed review of the ALJ decision see our September 2016 analysis.).

shutterstock_crane lifting.jpg

While the Commission rejected the ALJ’s, and the Secretary’s, interpretation of 56.16009 – that the presence of a miner within the fall zone of a spreader bar for any purpose violates section 56.16009 – miners do not have the unfettered go-ahead to work, stand, or travel beneath suspended loads, which include spreader bars.

At issue before the Commission was:

Whether the presence of a miner within the fall zone of a spreader bar for any purpose violates section 56.16009.”

Review of MSHA Program Policy and Regulations

 In determining this matter, the Commission reviewed not only the underlying facts and section 56.16009, but also looked to other MSHA regulations and a Program Policy Letter (“PPL”) issued by the agency on February 6, 2017. Continue reading

MSHA Enforcement Update and Legal Developments – [Webinar Recording]

On July 18, 2018, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar which covered a MSHA Enforcement Update and Legal Developments.

MSHA Update Snip

As we pass the midpoint of 2018, it is important to take a moment to look back on the enforcement trends developed during the previous six months. It is also important that operators don’t lose sight of Federal Mine Safety and Health Review Commission decisions which affect MSHA’s interpretation and enforcement of the nation’s mines. This webinar will review the enforcement trends and MSHA initiatives to date in 2018, as well as the resulting FMSHRC decisions from industry contest. Operators and contractors will be able to put this information into effect for compliance and contest purposes.

During this webinar, participants learned about:

  • MSHA enforcement trends and initiatives of 2018;

  • The effects of recent FMSHRC decisions on MSHA enforcement and compliance; and

  • Strategies to prepare operations to comply with the changing enforcement tactics and interpretations.

Here is a link to a recording of the webinar with slides and audio. This was the fourth webinar event in the 2018 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the rest of the webinars in the 2018 series, send an email to info@connmaciel.com to be registered for all the 2018 MSHA webinars.

2018 Webinars

Conn Maciel Carey Adds Seasoned Employment Attorney Megan Stevens Shaked to Expand its California Practice

Welcome to the team, Megan!

*Reblogged from the OSHA Defense Report

Conn Maciel Carey is pleased to announce that Megan Stevens Shaked has joined the firm as a senior associate in its San Francisco, CA office.  Ms. Shaked, an experienced employment litigator, will represent clients in a wide-range of employment-related litigation, and counsel clients in myriad legal issues that California employers face in the workplace.

“Megan brings a depth of experience with employment litigation, counseling and training that will enhance the employment law services we provide to employers across all industries,” said Andrew J. Sommer, head of the firm’s California practice.

She will also represent clients in connection with inspections, investigations and enforcement actions involving Cal/OSHA and other OSH-related matters on the West Coast.

“Megan is an ideal attorney to help grow our California practice in general, and our Cal/OSHA bench in particular,” said Eric J. Conn, a co-founder of the firm and Chair of the firm’s national OSHA Practice.  “California is a prominent base for our firm’s work, and Megan brings deep experience with the full range of employment issues that California employers face, including navigating the challenging waters of Cal/OSHA.”

Ms. Shaked has successful first-chair experience in employment law trials, and brings a creative approach to resolving tricky client issues.  Those qualities fit perfectly with the CMC model.  Ms. Shaked added that:

“I was drawn to Conn Maciel Carey by its highly-respected nationwide practice and broad-based experience in employment litigation, counseling and workplace safety.  Leveraging my litigation experience, I am looking forward to working with its attorneys to provide quality legal service to the firm’s clients.  I am excited to join such a successful, dynamic group of attorneys.”

MSHA and FMSHRC ALJ Still At Odds Over Settlement Approval

By: Nicholas W. Scala

On May 9, commissioners at the Federal Mine Safety and Health Review Commission (FMSHRC) once again heard the case Secretary of Labor (MSHA) vs. American Coal Co., in which the Secretary of Labor has fought an administrative law judge (ALJ) at the Commission for years over a planned settlement with the coal operator. This is a key issue for mining operators who want to reach settlements rather than trying to challenge alleged violations before the FMSHRC, and this is the second time the case made its way before the Commission. (See our previous post regarding the litigation history of MSHA v. American Coal Co.)

At issue is interpreting Section 110(k) of the Mine Act, which states that no penalty which has been issued under the Act “shall be compromised, mitigated, or settled except with theAm Coal Snip 2.0 approval of the Commission.” The section also provides that “[n]o penalty assessment which has become a final order of the Commission shall be compromised, mitigated, or settled except with the approval of the court.”

In the American Coal case, the Commission ALJ earlier insisted the Secretary of Labor furnish detailed information regarding the basis of a settlement with American Coal that would result in an across-the-board penalty reduction of 30 percent. Continue reading

MSHA’s Final Rule for Metal/Nonmetal Workplace Examinations – [Webinar Recording]

On May 23, 2018, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding MSHA’s Final Rule for Metal/Nonmetal Workplace Examinations.

Workplace Exam Webinar Snip

With all the delays, pauses and changes endured since MSHA first released its Final Rule for the Examination of Working Places in Metal/Nonmetal Mines, it is hard to believe that was just in January 2017. While the industry has braced for the rule to go into effect on several different dates since that release, there has been consistent opposition and toe dragging to putting it into action. This webinar reviewed the evolution of the rule since its first proposal, and outline elements that operators, and independent contractors must adhere to when it goes into effect.

During this webinar, participants learned about:

  • The changes from the proposed rule to the current draft set to go into effect;
  • The requirements for compliance with the Final Rule for workplace exams; and
  • Best practices to avoid potential enforcement by MSHA.

Here is a link to a recording of the webinar with slides and audio. This was the third webinar event in the 2018 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the rest of the webinars in the 2018 series, send an email to info@connmaciel.com to be registered for all the 2018 MSHA webinars.

2018 Webinars

MSHA Jurisdiction: Where Does It Begin and End? – [Webinar Recording]

On March 14, 2018, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding MSHA Jurisdiction: Where Does It Begin and End?.

MSHA Jurisdiction Webinar Snip.PNG

The Mine Act of 1977 governs all mine operators, and grants MSHA authority over the industry. While the agency clearly has the power to regulate and inspect active mining operations around the country, its reach has limits, and stakeholders should be aware of when it is appropriate to challenge MSHA’s grasp. This webinar will review the limits of MSHA’s jurisdiction, beginning with the OSHA/MSHA Interagency Agreement up until the recent 6th Circuit decision in Maxxim Rebuild.
During this webinar, participants learned about:
  • The operations which clearly fall within, and outside, the limits of MSHA’s governance;
  • The effects of recent decisions from the Federal Mine Safety and Health Review Commission and Federal Court system on MSHA’s power; and
  • How to challenge MSHA attempts to inspect operations and facilities outside their jurisdiction.

Here is a link to a recording of the webinar with slides and audio. This was the second webinar event in the 2018 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the rest of the webinars in the 2018 series, send an email to info@connmaciel.com to be registered for all the 2018 MSHA webinars.

2018 Webinars

Effective June 2nd – MSHA’s Final Rule on Metal/Nonmetal Workplace Exams Is Here

By: Nicholas W. Scala

Bringing a longstanding rulemaking item to fruition, MSHA issued its final rule for workplace examination requirements in Metal/Nonmetal (“M/NM”) mines on April 9th. This rule has been well publicized, and much debated within the industry, but production operators and independent contractors must prepare to comply with its changes as it becomes effective June 2, 2018.

The rule has been an important component of MSHA’s regulatory blueprint since it was first announced in 2016 and this iteration follows up on a January 23, 2017 final rule that amended provisions for examinations in these mines. The rule was previously stayed and delayed on several occasions. (See our previous blog posts for details)workplace exam rule

The amendments, which were first announced in Fall 2017, provide operators with additional flexibility in managing safety and health programs and, according to the rule notice in the Federal Register, “reduces regulatory burdens without reducing the protections afforded miners.”

At the same time, MSHA published a document concurrent with the rule providing notice of stakeholder meetings. These conferences are designed to help the mining sector achieve compliance with the exam requirements and to assist with any concerns in the industry about the rule’s final form.

This regulation takes effect on June 2, so there is only a short window to make sure the examinations are conducted in accordance with MSHA’s requirements. However, the National Sand Stone & Gravel Association recently reported that MSHA will not issue citations for alleged violations under new requirements until October 1, 2018, unless egregious conditions are observed (a policy also announced by MSHA at recent stakeholder meetings).

Consistent with earlier revisions, MSHA’s final rule amends §§ 56.18002(a) and 57.18002(a), § 56.18002(b) and (c), and § 57.18002(b) and (c), as done in the rule published last year.

The most notable of the changes, MSHA will now require that a competent person examine each working place at least once each shift before work begins, or as miners begin work in that place, for “conditions that may adversely affect safety or health.”

Continue reading

U.S. Met Coal Exports May Suffer Because of New Steel and Aluminum Tariffs

All choices involve costs. That’s axiomatic in the field of economics. The U.S. government imposed tariffs on steel and aluminum imports this week using presidential authority under the Trade Expansion Act of 1962 and the Trade Act of 1974 upon a finding that increasing steel imports and the reduction in domestic steel-making capacity impairs the national security of the United States. The new tariffs will become effective on March 23. These new tariffs, however, could disrupt exports of US metallurgical coal, one of the bright spots in the domestic coal industry that we wrote about last year.

As an example, Brazil is a major consumer of U.S. met coal and its Ministers of Foreign Affairs and Industry and Industry, Foreign Trade and Services responded to the U.S. tariffs, stating that Brazil has a “preference for dialogue and partnership, [but] Brazil reaffirms that it will take all necessary steps, both bilaterally and multilaterally, to preserve its rights and interests.” Brazil is the second-largest source of steel imports to the United States after Canada which has been exempted from the new tariffs. But Brazil also is dependent upon imports of metallurgical coal for its steel mills because its own coal resources are of poor quality and support only power applications. Brazil’s coal imports are nearly $2.8 billion (USD) per year with more than a third of that coming from coal mines in the United States. Brazil’s ministers also pointed out that its steel exports are semi-finished products that are used as inputs in the North American steel industry.

Metallurgical coal exports experienced a year-over-year volume increase of 38.2% between 2016 and 2017. And this demand increase drove significant increases in average prices to importing countries. The upswing in metallurgical coal production also saw a rise in injury and fatality rates in the coal industry from 2016 to 2017. But even with the cuts and reallocation of MSHA’s coal-enforcement resources outlined in our previous post, MSHA completed 100% of its scheduled coal mine inspections with a 15 % increase in citations or orders issued to the coal industry. In fact, while the deregulation of coal mines garnered significant attention during the 2016 presidential election, mine safety and health regulations remain largely untouched by the current administration.

Retaliatory measures by other countries in response to the U.S. steel and aluminum tariffs could end up hurting the U.S. met coal industry in favor of other exporters. The strength of the industry is dependent both upon steel production and demand from overseas customers. While increased domestic steel making could create substitute demand for met coal within U.S. borders, the National Mining Association has described that theory as “a muddled picture until we know more of the details.