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 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 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.

2018 [MSHA] Agency Review and Outlook – [Webinar Recording]

On January 24, 2018, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding 2018 [MSHA] Agency Review and Outlook.

Jan webinar

With 2017 behind us, it’s time to look forward to what MSHA has in store for the next year. To close the year, the agency rounded out its leadership with the confirmation of Assistant Secretary Zatezalo and began review of pending and new rulemaking efforts. This groundwork will shape the future of MSHA during the Trump administration over the next three years.
This webinar will review the new MSHA leadership team, developments in rulemaking and enforcement, and other issues of importance for the nation’s mine operators.
During this webinar, participants learned about:
  • The new MSHA leadership team;

  • Rulemaking advances, including with MSHA Metal/Nonmetal rule for Workplace Exams; and

  • Areas ripe for change under the first full year of a Trump Administration MSHA.

Here is a link to a recording of the webinar with slides and audio. This was the first 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 to be registered for all the 2018 MSHA webinars.

2018 Webinars

Announcing Conn Maciel Carey’s 2018 MSHA Webinar Series

2018 Webinars2018 is here, and with it comes a new chapter for the mining industry under MSHA regulation. This will mark the Agency’s first full year with the Trump Administration, and it begins with MSHA’s leadership team appointed, confirmed and in place. This leaves the industry with questions regarding the status moving forward from past enforcement initiatives, such as impact inspections, Rules to Live By and pending rulemaking, while also leaving operators curious as to what new priorities will manifest as MSHA moves forward. As we push into the new year, it is as important as ever that the mining industry monitor MSHA as the policies and tone of this administration unfold.

Conn Maciel Carey’s complimentary 2018 MSHA Webinar Series, hosted by the firm’s national MSHA Practice Group, is designed to give you the tools to prepare your mining operations for forthcoming initiatives, rulemaking and enforcement for 2018 and beyond.

To register for an individual webinar, click the link below the program description. To register for the entire 2018 series, click here to send us an email request, and we will register you. If you missed any programs from prior years, here’s a link to an archive or recordings for those webinars.

MSHA 2018 Webinar Schedule (002)

Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA/MSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice.  “We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,”Kara M. Maciel, Chair of the Labor & Employment Practice reported.

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

Miner and Mine Manager Rights – [Webinar Recording]

On December 14, 2017, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding Miner and Mine Manager Rights.

Dec Webinar

MSHA publishes and distributes information each year on miners’ rights in the workplace. The rights widely broadcast by the agency include the right to report hazards in the workplace to MSHA, to not be discriminated against in the workplace for reporting safety defects (amongst other protected activities) and to speak to MSHA without management present. However, this is only half the story and does not include the rights of mine management personnel during inspections and investigations.

During enforcement and investigations, MSHA relies heavily on miner statements and alleged admissions by mine management. Especially during special investigations, these statements can be the nails in the coffin for enforcement. Operators should be aware of the rights of all miners and mine management both cooperate with MSHA, or not, and train the workforce on their rights when dealing with MSHA.

During this webinar, participants learned about:

  • The rights of miners and agents of management while interacting with MSHA;
  • Strategies for training personnel to handle MSHA investigations; and
  • When operators and agents of management should refrain from speaking to MSHA.

Here is a link to a recording of the webinar with slides and audio. This was the eleventh webinar event in the 2017 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the webinar in the 2018 series, send an email to to be registered for all the 2018 MSHA webinars.

2018 Webinars

MSHA Recordkeeping Requirements and Document Production – [Webinar Recording]

On November 29, 2017, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding MSHA Recordingkeeping Requirements and Document Production.

Recordkeeping snip

Recordkeeping requirements such as workplace exams are well-known and often discussed with MSHA inspectors, however these are far from the only records that MSHA requires operators to maintain. On top of knowing which records to keep, it is equally important that operators are aware of how long the records must be maintained.

Failure to produce a required record will most likely result in a citation for failure to maintain the records, and even if the records were created but not retained long enough operators can expect a citation similar to if the record was not created at all. This webinar will provide with the tools to proficiently produce and provide to MSHA document that must be maintained for both regular inspections and recordkeeping audits under Part 50.

 During this webinar, participants learned about:

  • Which record must be maintained by operators under MSHA;

  • How long records must be retained by the operator; and

  • How to react if MSHA is requesting documents not expressly required to be maintained.

Here is a link to a recording of the webinar with slides and audio. This was the tenth webinar event in the 2017 Conn Maciel Carey MSHA Webinar Series. Plan to join us for the remaining webinar in the 2017 series, send an email to to be registered for the remaining MSHA webinars.