Appellate Court Rescinds MSHA’s Workplace Exam Rule for Metal/Nonmetal Mines and Imposes More Stringent Exam Requirements

By: Nicholas W. Scala

On June 11, 2019, the U.S. Court of Appeals for the District of Columbia issued a decision vacating MSHA’s current Metal/Nonmetal Workplace Exam Rule and installing a 2017 version of the rule (“2017 Rule”) as enforceable.

The challenge to the rule was brought by various labor unions contesting MSHA’s 2018 amendments to the revised 56/57.18002 (the 2018 Rule). The 2018 Rule, finalized in June 2018, went into effect in October 2018. Now, the 2017 Rule is in effect, and citations can be issued for noncompliance with its requirements by MSHA inspectors. [see our previous post detailing the 2017 final rule here]. workplace exam decision

In reinstating the 2017 Rule, the Court of Appeals put into effect two requirements operators previously did not have to comply with:

  1. All workplace exams must be done BEFORE miners enter a working area; and
  2. All adverse conditions observed during a workplace exam must be recorded, even if corrected/abated prior to miners entering the working area.

The challenge to the 2018 Rule was two-fold, first, in the 2018 amendments, MSHA modified the requirement that the workplace exam must be done “before” miners enter a working area, allowing operators to conduct the exams “before OR AS” miners enter the workplace. Continue reading

Preventing and Defending MSHA Whistleblower Claims – [Webinar Recording]

On June 4, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the third webinar in the 2019 MSHA Webinar Series regarding Preventing and Defending MSHA Whistleblower Claims.

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A priority under the Obama Administration across workplaces nationwide, the mining industry was not immune to the spike in discrimination cases brought forward by MSHA. While these cases may not receive the attention they once did, discrimination cases under Section 105(c) of the Mine Act remain an active area of MSHA investigation and prosecution, and perhaps one of the most costly and difficult allegations for operators to defend. Continue reading

5 Conn Maciel Carey Attorneys in Washington, DC Recognized as Super Lawyers

Conn Maciel Carey LLP is excited to share that five of its attorneys based in Washington, DC have been recognized by Super Lawyers in 2019 in the fields of Labor & Employment and Workplace Safety Law.  sl-badge-l-w-2019Super Lawyers is a research-driven and peer-influenced rating service featuring exceptional attorneys out of select legal practice areas.  The attorneys selected are acknowledged for acquiring extraordinary professional achievement and peer recognition in their discrete areas of practice.

Eric J. Conn (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. His practice focuses exclusively on issues involving occupational safety and health law.  Before launching his own OSHA Practice, Mr. Conn practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission.  Mr. Conn and his OSHA Team at Conn Maciel Carey develop safety and health regulatory strategies for employers across all industries.

Prior to founding Conn Maciel Carey, Mr. Conn was Head of an OSHA practice group that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in its 2014 Global Awards. In 2013 and 2014, he was named a “Rising Star” by Washington, DC Super Lawyers, and as a Super Lawyer every year since.  He has also been selected for inclusion in the Washington Post’s Top-Rated Lawyers list in Washington, DC.

Kara M. Maciel (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship. Continue reading

What to Do During MSHA Accident and Injury Investigations – [Webinar Recording]

On April 10, 2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the second webinar in the 2019 MSHA Webinar Series which covered What to Do During MSHA Accident and Injury Investigations.

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The hours, days and weeks following an on-site accident are stressful and at times chaotic environments for employees and managers alike. While the well-being of any injured party is the priority, operators must also ensure appropriate action is taken to comply with MSHA regulations and assess the incident while taking steps toward preventing a similar occurrence.These concerns are enough to manage without the likely visit from MSHA to investigate, at which time inspectors will conduct employee interviews and issue citations and orders in the event of alleged noncompliance.

This webinar reviewed the immediate compliance requirements following an accident, as well as strategies to limit exposure and protect company interests while allowing MSHA to complete its investigation.

During this webinar, participants learned about:

  • Responsibilities of mine operators and independent contractors in the event of an accident;
  • Miner and mine management rights during a subsequent MSHA investigation; and
  • Best practices for conducting internal accident investigations.

Here is a link to a recording of the webinar with audio, and a copy of the slides. This was the second webinar event in the 2019 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the rest of the webinars in the 2019 series, send an email to to be registered for all the 2019 MSHA webinars.

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2019 Webinar Table

Conn Maciel Carey Opens Columbus, Ohio Office

Conn Maciel Carey LLP announced today the opening of its Columbus, Ohio office. It is the firm’s sixth office nationally and the second location in the Midwest. The new office represents another important step in the firm’s continued growth in the region, together with the opening of its Chicago office last year.

Columbus is a growing Midwest hub and is centrally located to many of the nation’s current and historic industrial centers. With an expanded Midwest presence, Conn Maciel Carey attorneys now provide enhanced services to its national clients operating in the Midwest.

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We are excited about our expanding Midwest presence” said Managing Partner Bryan Carey. “The Columbus office will allow the firm to build upon the success of our 2018 launch of our Chicago office, offering clients operating in the central U.S. greater proximity to our attorneys, resources, and counsel.

Nicholas W. Scala, a partner with the firm, will lead the Columbus office. Mr. Scala joined the Firm in 2016, founding the firm’s MSHA Practice Group, which he chairs. His practice services the mining industry, managing all interaction with, and contest of enforcement by, the Mine Safety and Health Administration (MSHA) for companies operating in the coal, aggregates, industrial minerals, and cement industries. He also CMC Headshot (2017)supports the firm’s national OSHA Practice Group, representing general industry and construction companies in connection with inspections and enforcement actions by the Occupational Safety and Health Administration (OSHA). Mr. Scala works with state mining associations in Ohio and Illinois and represents clients throughout the Midwest and Ohio River Valley regions. He was named a Super Lawyer Rising Star in Washington, D.C. in 2017, 2018, and 2019.

The Columbus market offers a fantastic opportunity for not only our MSHA Practice, but for OSHA and Labor and Employment, as well,” said Scala. “Working with attorneys spanning the firm’s existing offices and groups, we will build upon the firm’s experience and proven client service, bringing additional value to the Midwest. Specific to our firm’s Workplace Safety Practice Group, Columbus is centrally located to several of the most active mining regions in the country, as well as a historically active area for regulatory enforcement over the construction and general industry sectors. It’s a growing and dynamic market that I am eager to grow the firm in.

The Columbus office will expand Conn Maciel Carey’s national Labor and Employment and OSHA practice groups. The Labor and Employment Practice Group, led by founding partner Kara M. Maciel, provides employment defense in both state and federal courts, labor-management relations, as well as day-to-day counseling on a vast array of employment matters. The OSHA Practice Group, led by founding partner Eric J. Conn, represents a wide-range of clients across the country in all aspects of their interaction with OSHA and state OSH programs.

In addition to its Midwest offices, the boutique law firm, which was founded in 2014, has offices in Washington D.C.; Chicago, Illinois; Atlanta, Georgia; Los Angeles, California; and San Francisco, California.

Here is a link to a press release issued by the Firm about these exciting developments.

FMSHRC Commissioners Confirmed: Appeals of MSHA Enforcement to Continue

By: Nicholas W. Scala

As of March 25, 2019, the Federal Mine Safety and Health Review Commission (FMSHRC), the body which oversees operator and MSHA litigation under the Federal Mine Safety and Health Act of 1977 (the Mine Act), has regained the ability to hear and decide cases for first time since August 2018. The swearing-in of Commissioner William I. Althen, Commissioner Arthur R. Traynor III, and Chairman Marco M. Rajkovich, Jr. reinstated quorum for the FMSHRC.

FMSHRC Confirmations SnipOn August 30, 2018, with the expiration of terms for then Commissioners Cohen and Althen, the FMSHRC no longer had the requisite minimum of three members to form a quorum, or the minimum number of Commissioners required to fully function. During that time, Commission authority was limited to deciding which cases it would hear on appeal, however, all appeals of Administrative Law Judge (ALJ) decisions under the Mine Act were stayed, awaiting confirmation of the presidential nominees from the Senate. These nominees were confirmed by the Senate on March 14—more than a year after Chairman Rajkovich’s nomination in January 2018.
In its role as the appellate body of ALJ decisions, the Commission fills an important role in the evolution of MSHA regulations and interpretations. Commission decisions are binding on the FMSHRC ALJs, as well as MSHA and operators, unless a decision is appealed to the federal court system and the Commission reversed.

The restoration of quorum comes with a growing docket of appeals before the Commissioners, with topics ranging from discrimination and protected activity for miners under the Mine Act, the scope of ALJ power in requiring evidence be produced to approve settlements, and when fall protection is or is not required to be worn.

The Commission will remain complete with its five members until the terms of Commissioners Jordan and Young expire in 2020. Yet, even if the nomination and confirmation process is as sluggish as it was this time around, the Commission will retain quorum with the three recently confirmed members until Commissioner Traynor’s term expires in 2022. The terms for Chairman Rajkovich and Commissioner Althen expire in 2024. With a full Commission, industry can hopefully expect guidance on many of the languishing legal issues litigated in the recent years with MSHA.



MSHA 2018 in Review and 2019 Predictions – [Webinar Recording]

On February 7,  2019, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented the first webinar event in the 2019 MSHA Webinar Series which covered MSHA 2018 in Review and 2019 Predictions.

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To prepare for the future of MSHA enforcement, it is essential to review the past. A review of 2018’s trends, initiatives and statistics will set the table for a discussion of what to expect from the Agency moving forward. Specifically, this webinar will look at potential rulemaking topics as we enter the second year with Assistant Secretary Zatezalo at the helm, and how the “One MSHA” merger of the Coal and Metal/Nonmetal divisions could affect operators.

During this webinar, participants learned about:

  • 2018 MSHA enforcement statistics and trends;

  • Potential rulemaking targets and MSHA initiatives in 2019; and

  • Effects of current enforcement focus areas and the “One MSHA” reconfiguration.

Here is a link to a recording of the webinar with slides and audio. This was the first webinar event in the 2019 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the rest of the webinars in the 2019 series, send an email to to be registered for all the 2019 MSHA webinars.

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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.

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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.

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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.).

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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