Author: Nick Scala

Coalition of Employers and Trade Groups to Modernize OSHA and MSHA Processes and Standards

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By Conn Maciel Carey LLP’s national OSHA and MSHA Practice Groups

The Trump Administration continues its quest toward easing regulatory burdens and improving efficiency of government functions by seeking input from the public about overly burdensome regulations that should be rescinded or replaced.  CMC invites employers who prioritize their workers’ safety but get frustrated by OSHA’s and MSHA’s sometimes antiquated or onerous regulatory framework to join the Employers OSHA and MSHA Modernization Coalition.

The Employers OSHA and MSHA Modernization Coalition will allow employers to take advantage of this unprecedented opportunity to recommend improvements to a broad swath of outdated or unduly burdensome workplace safety and health standards, processes, and enforcement policies implemented by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA).

The Coalition will be conducting separate open OSHA and MSHA kickoff virtual meetings next week – OSHA on Wednesday, May 7, 2025 and MSHA on Friday, May 9, 2025 – to discuss the types of reform for which we will be advocating, the process we will follow to present our advocacy to the Administration and to OSHA and MSHA directly, and how companies and trade groups can effectively contribute.  For more details, read on or contact Eric Conn, Chair of CMC’s OSHA Practice and Nick Scala, the Chair of CMC’s MSHA Practice.

What is the White House’s Objective? Continue reading →

MSHA Announces Temporary Stay of Silica Rule Compliance Deadline for Coal Mining

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By Nicholas W. Scala

In a significant turn of events for the coal mining sector, the Mine Safety and Health Administration (MSHA) has announced a temporary enforcement pause on its stringent respirable crystalline silica regulation. This announcement follows a year of escalating anxiety in the industry since the final rule, officially titled “Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection,” became effective on June 17, 2024.

 

Initially, coal operators faced an April 14, 2025, compliance deadline, significantly shorter than the two-year grace period granted to the Metal/Nonmetal (M/NM) industry, which has until April 8, 2026. However, as legal challenges from multiple industry associations loom over the rule, and the agency goes through a transition to the new administration, the landscape for compliance became fraught with uncertainty and lack of guidance. The challenges against the rule—currently consolidated in the 8th Circuit Court of Appeals—raise questions among stakeholders about whether the Court will uphold, vacate, or remand the final rule back to MSHA for revision and what impact that decision will have on compliance obligations.

Continue reading →

Senior Leadership at DOL, OSHA, and MSHA Under a 2nd Trump Administration Is Taking Shape

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By Eric J. Conn and Darius Rohani-Shukla

As Rep. Lori Chavez-DeRemer braces for a flurry of questions at her confirmation hearing before the Senate Committee on Health, Education, Labor, and Pensions (HELP) on her way to a full Senate vote to become President Trump’s Secretary of Labor, the Trump Administration is assembling its new senior leadership team to oversee workplace safety and labor policy. These key nominees will shape enforcement priorities, compliance strategies, and industry engagement across OSHA, MSHA, and the broader Department of Labor:

  • Lori Chavez-DeRemer – Nominee for Secretary of Labor: A former mayor and member of Congress, with unexpected ties to labor, is expected to emphasize regulatory flexibility and employer engagement.
  • Keith Sonderling – Nominee for Deputy Secretary of Labor: A former EEOC Commissioner and Dept of Labor official with expertise in AI, employment law, and compliance initiatives.
  • David Keeling – Nominee for Assistant Secretary of Labor for OSHA: A veteran of UPS and Amazon with decades of experience managing workplace safety in complex work environments.
  • Amanda Wood Laihow – Nominee for Deputy Assistant Secretary for OSHA: A former Commissioner at the OSH Review Commission and legal and policy expert with the National Association of Manufacturers.
  • Wayne Palmer – Nominee for MSHA Administrator: A regulatory veteran with previous leadership experience at MSHA and in the mining industry.

With these appointments, the second Trump Administration is signaling a shift in labor and workplace safety policy, though how far and how fast the pendulum will swing remains to be seen. Will workplace safety regulations lean toward deregulation, targeted enforcement, or greater collaboration with industry stakeholders? These questions will be central in upcoming confirmation hearings. Below is a deeper look at each nominee and the potential impact of their leadership on the operations of OSHA, MSHA, and the Department of Labor’s many other divisions. Continue reading →

MSHA’s Final Rule for Respirable Crystalline Silica: What is Required and How Long Do Operators Have to Comply?

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By Nick Scala and Hema Steele

On April 16, 2024, the Mine Safety & Health Administration (“MSHA”) released its final rule for Respirable Crystalline Silica (“RCS”) for preliminary viewing, and it was published in the Federal Register on April 18, 2024. While an update to MSHA’s silica regulations has been in the works for most of the 21st century, getting from this proposed rule to the final form moved very quickly from a rulemaking perspective. With the rule, MSHA seeks to protect mine workers from occupational exposure to RCS, including quartz, cristobalite, and/or tridymite.

The rule imposes stringent new requirements on operators, including a reduced Permissible Exposure Limit of 50 µg/m³, mandatory sampling, regular written evaluations of operations (even when there are no changes to the process, equipment, or mined mineral), the adoption of respiratory protection programs, and medical surveillance programs for Metal/Nonmetal mines.

The rule will become effective on June 17, 2024. MSHA had originally proposed that mine operators begin compliance 120 days after the rule’s effective date, but to balance miners’ safety and health with mine operators’ preparations in implementing the new requirements, MSHA has set the following new deadlines by which mine operators must comply:

    • Coal mine operators: April 14, 2025
    • Metal/Nonmetal operators: April 8, 2026

The extended compliance period will allow operators to learn the new regulation’s subparts, evaluate its application to their mine(s), develop the necessary programs, and acquire sampling materials or coordinate with third parties to conduct sampling. The roughly two-year compliance period for MNM matches the General Industry compliance grace period from when OSHA finalized its updated silica regulation in 2016. MSHA granted more time to MNM mine operators citing that MNM mines do not have the same robust existing sampling requirements as have been in place in the Coal industry for years, and additional time would be needed or the MNM operations to develop and implement compliant programs, while also giving sampling and medical surveillance infrastructure time to expand for the new demands. .

Here are some key takeaways from the proposed rule: Continue reading →

MSHA Respirable Crystalline Silica Rule Clears OMB Review – Final Rule Is Imminent

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By Nick Scala

We have an important update to share about the status of MSHA’s Respirable Crystalline Silica rulemaking, officially proposed as Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection. Yesterday, OMB updated the entry on its website about the Respirable Crystalline Silica rulemaking to reflect that OMB/OIRA has concluded its regulatory review under EO 12866. The rule arrived at OMB/OIRA on January 12, 2024, and in total, OMB hosted seventeen EO 12866 stakeholder meetings. OMB/OIRA is supposed to complete the review within 90 days of receipt, although this is not always adhered to. In this case, MSHA’s final version of the rule was in the review process for 75 days. 

As you can see below, OMB has updated its entry for this rulemaking to reflect: the “OIRA Conclusion of EO 12866 Review.”

We can see here that OMB lists its Concluded Action as “Consistent with Change.” This means Continue reading →

MSHA Releases Final Rule: Safety Program for Surface Mobile Equipment

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By: Nicholas W. Scala

The Mine Safety & Health Administration (“MSHA”) has finally published its final rule on Safety Programs for Surface Mobile Equipment. This final rule has been a long time coming. MSHA originally published a Request for Information and held seven stakeholder meetings in 2018. In 2021, MSHA published a notice of proposed rulemaking, which we covered in detail more than two years ago. 

Following the close of the initial comment period in late 2021, MSHA reopened the rulemaking for another 30-day comment period, ending in February 2022. Almost a full two years later, MSHA published its final rule on December 20, 2023, and it became effective January 19, 2024. 

However, the effective date is not the same as the compliance date. In the final rule, MSHA wrote in a deferred compliance date, giving operators a grace period to get into compliance with the new standards before the agency and its inspectors enforce the provisions during inspections. That compliance date is July 17, 2024. 

This means that all operators and contractors operating surface mobile equipment at surface mines, or the surface areas of underground mines, will need to have compliant programs in place by July 17, 2024. This also means that MSHA cannot enforce the provisions of the final rule before that date.

Despite years of MSHA review since the proposed rule was published, the final rule largely looks the same, with a few small changes, which we will review here.   Continue reading →

MSHA Publishes Proposed Rule for Respirable Crystalline Silica Exposure

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Screenshot 2023-07-13 163944

By: Nicholas W. Scala

The Mine Safety & Health Administration’s (“MSHA”) long-awaited proposed rule for Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection has finally been published. MSHA released an early copy of the proposed rule recently on June 30th , but the official version was published on July 13th, on the Federal Register.   

Industry stakeholders have heard of MSHA’s plans for a new rule regulating Respirable Crystalline Silica (“RCS”) exposure in the mining industry for more than a decade, and across three presidential administrations if not longer. What MSHA published today is unsurprisingly similar to what stakeholders expected in 2016 when momentum was building for MSHA to adopt the Occupational Safety & Health Administration’s (“OSHA”) new (at that time) RCS standard, although there are some notable differences. Here are some key takeaways from the proposed rule:  Continue reading →

MSHA Releases Increased Penalties for 2023

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By: Nicholas W. Scala & Ashley Mitchell 

Adhering to what is now an annual requirement since the passage of the Inflation Adjustment Act in 2016, on January 13th the Mine Safety & Health Administration (MSHA) published a Final Rule updating the penalties used when assessing fines for citations and orders for the coming year. The increased penalties will determine assessments for mine production operators and independent contractors for all citations and orders assessed after January 15th. This annual update to MSHA’s penalty authority is tied to national inflation metrics, meaning when there is significant inflation in the economy, the penalty increase is greater. This year the penalty increase is slightly above 7% from 2022. 

For the most basic citations like 104(a) Citations, the increase is minimal. The statutory minimum penalty for regularly assessed penalties increases from $148 to $159. The increase becomes more noticeable when citations and orders are classified more seriously and therefore creep further up MSHA’s regular assessment penalty conversion chart. For example, the statutory maximum for regularly assessed penalties under 30 C.F.R. Section 100.3 is now $85,580 up from $79,428 in 2022.

Other increases of note include:

  • Minimum Penalty for 104(d)(1) Citation/Order
    • An increase from $2,648 to $2,853
  • Minimum Penalty for 104(d)(2) Order
    • An increase from $5,293 to $5,703
  • Minimum Penalty for Failure to Notify MSHA of an Accident within 15 Minutes
    • An increase from $6,620 to $7,133 (the maximum follows Section 100.3 max listed above)
  • Maximum Daily Penalty for Failing to Abate MSHA Citation (104(b) Order)
    • An increase from $8,605 to $9,271
  • Maximum Penalty for Flagrant Violations under Section 110(b)(2)
    • An increase from $291,234 to $313,790

Annually, MSHA has until January 15th of each calendar year to increase the penalty assessment limits. The new penalties will become evident as mine operators begin to receive Proposed Assessments and Statements of Accounts from MSHA following the issuance of citations or orders from now forward in 2023. The increase in penalties in no way impacts mine operators’ option to contest any assessed citation or order, and as penalties continue to increase MSHA may find more operators contesting to ease the financial burden.

(For more information on the history of these increases see our 2016 blog post on the implementation of the Inflation Adjustment Act and its Catch-up Provisions by the Department of Labor)

[BREAKING] Supreme Court Reinstitutes a Stay of OSHA’s Vaccinate-or-Test ETS

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By Conn Maciel Carey LLP’s COVID-19 Task Force

After its normal release of opinions this morning that did not include a decision about whether to stay OSHA’s vaccinate-or-test ETS, this afternoon, at approximately 2:30 PM, the United States Supreme Court issued a per curiam decision reinstituting a stay of OSHA’s ETS.  Here is a link to the opinion of the Court.

A per curiam decisions is a court opinion issued in the name of the Court rather than specific judges, but it is certainly not an indication that the decision was unanimous or non-controversial, and in this instance, we know it was not that.  There was also a concurrence by Justice Gorsuch (joined by Justices Thomas and Alito), and a joint dissent by Justices Breyer, Sotomayor, and Kagan.

At first blush, it appears that the majority of the Court is saying that without a more explicit delegation of authority from Congress, OSHA can only regulate hazards that are fairly unique to the workplace, which could have broader implications for OSHA’s regulatory reach than just this COVID-19 ETS (see Heat Illness):

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Under this theory, the majority opinion indicates Continue reading →

OSHA’s Vaccinate-or-Test ETS in the Hands of the Supreme Court

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By Conn Maciel Carey LLP’s COVID-19 Task Force

As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit.  That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.

As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:

  • the so-called “shadow docket,” with no briefing and a decision perhaps issued by a single Justice; or
  • more conventional proceedings, with briefing and oral argument, and likely a decision by all nine Justices.

Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals.  Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit.  Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.

On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th.  The Order does not provide for any additional briefing by petitioners or friends of the court.  Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.

We now have a clearer picture of Continue reading →