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)
SEE BELOW FOR DESCRIPTIONS OF THE WEBINARS AND REGISTRATION LINKS Continue reading

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.

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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 info@connmaciel.com 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 info@connmaciel.com to be registered for the remaining MSHA webinars.

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The Evolution of Imminent Danger Orders – [Webinar Recording]

On October 26, 2017, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding The Evolution of Imminent Danger Orders.

Imminent Danger Snip

The last several years, MSHA has issued 107(A) Imminent Danger orders with increased frequency. On the surface, these orders seem self-explanatory, yet the agency has been moving beyond the common assumption that these orders can only be issued when death or serious injury is imminent.. For example, some inspectors are issuing Imminent Danger orders under circumstances operators consider much less severe, and the Federal Mine Safety and Health Review Commission has been upholding them.

This webinar discussed how MSHA’s application and enforcement of imminent danger orders have evolved at the close of Assistant Secretary Joe Main’s tenure, including how and why Commission decisions have bolstered this trend.

During this webinar, participants learned about:

  • How Imminent Danger order are defined;

  • MSHA support of the use of 107(A) orders by inspectors; and

  • Federal Mine Safety and Health Review Commission and Federal Court decisions shaping the 107(A) landscape.

Here is a link to a recording of the webinar with slides and audio. This was the ninth 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 info@connmaciel.com to be registered for the remaining MSHA webinars.

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Mine Safety and Health Administration (MSHA) Delays Effective Date (Again) and Proposes Limited Changes to Final Rule For Examinations of Working Places in Metal and Nonmetal Mines

By: Nicholas W. Scala

New Effective Date: March 2, 2018

Mine operators will not have to comply with MSHA’s much anticipated final rule for the Examinations of Working Places in Metal and Nonmetal Mines by October 2, 2017, as the rule’s effective date wasonce again delayed. Finalized on January 23, 2017, and subsequently delayed in May and July, MSHA now proposes the rule go into effect on March 2, 2018.Workplace Sept 2017 snip

The agency credits the additional delay to the need for more time to prepare compliance assistance materials, interface with operators regarding the new rule and to train the MSHA inspector enforcement personnel. These reasons should sound familiar, as MSHA has previously cited similar grounds for delaying the rule’s effective date, yet industry has seen little results in the form of compliance assistance materials to date.

For further analysis and explanation of the rulemaking see previous MSHA Defense Report Post

Proposed Changes to Examination “Before Work Begins” and Recordkeeping Requirements

MSHA also proposed two changes to the final rule, which the agency claims “would provide mine operators additional flexibility in managing their safety and health programs and reduce regulatory burdens without reducing protections afforded miners.”

First, MSHA proposed a change to the provision of the rule requiring workplace exams take place before miners beginning work in an area, to also allow workplace exams to occur while miners begin their shifts. The new proposed language for §§56/57.18002(a) will: Continue reading

Internal and Third Party Audits: Risks, Rewards and How To Protect the Results – [Webinar Recording]

On August 24, 2017, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding Internal and Third Party Audits: Risks, Rewards and How To Protect the Results.

Audit Snip.JPG

There are numerous benefits to internal or third-party safety audits. These audits offer operators terrific insight for proactive safety and compliance improvements. But, can these audits be used against an operator…The short answer is yes.

Typically, both internal and third-party safety audits can be acquired by MSHA during inspection (if offered by the operator) or during discovery in litigation. Since MSHA has no statute of limitations for enforcement, such records can be used against operators, especially to support allegations that an operator knew or should have known of specific conditions. This webinar will provide recommendations for the creation and retention of internal and third-party audits.

 During this webinar, participants learned about:

 MSHA’s capacity to rely upon prior safety audits during investigations and enforcement;

  • Suggested limits on distribution and language choices while creating audits; and

  • How to engage with counsel to assert privilege over the audits and protect them from MSHA.

Here is a link to a recording of the webinar with slides and audio. This was the eighth 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 info@connmaciel.com to be registered for the remaining MSHA webinars.

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Department of Labor Names Wayne Palmer Acting Head of Mine Safety and Health Administration (MSHA)

By: Nicholas W. Scala

While it remains to be seen whether a formal presidential appointee will be tapped to run the Mine Safety and Health Administration (MSHA), the Trump Administration finally made an influx of leadership decisions for the agency. Update

The Department of Labor announced that Wayne Palmer, former Chief of Staff to Labor Secretary Alex Acosta, is now the acting head of MSHA. Palmer’s replacement at the Department of Labor, Nicholas Geale (who is also the Department’s acting Solicitor), stated that Palmer is from Pennsylvania and has “mining in his family’s background.” However, it is not readily apparent if he has any professional experience working with the mining industry. Palmer’s political experience includes working for Senators Rick Santorum (R-PA) and George Voinovich (R-OH), as well as lobbyist for the pharmaceutical industry.

It is still believed the administration will nominate an appointee to serve as permanent Assistant Secretary for MSHA in the coming months, but until that day comes and the nominee is approved by the Senate, Palmer will lead MSHA.

Will Palmer’s presence will serve to further the President’s vow of deregulation? That’s a timely question given MSHA’s final rule for the Examination of Working Places in Metal and Nonmetal Mines is set to go into effect on October 2, 2017.

Mine Safety and Health Administration (MSHA) Regulatory Plan Backs Off On New Silica Rule, Keeps Workplace Exams Rule

By: Nicholas W. Scala

Mine Safety and Health Administration (MSHA) has a distinctly less ambitious regulatory plan on its plate with the start of the Trump Administration, in line with the campaign promises the President made last year to reduce regulatory burdens across the board.

In a key development for mine operators, a plan to issue new regulations targeting silica exposures in mines has been put on the proverbial back burner; so has a set of new regulations on proximity detection. Both of these have been watched by mine health experts.reg-agenda

The last regulatory agenda under the Obama Administration had five new mine safety and health rules in the works, a fairly heavy lift for a comparably sized federal agency. However, the new regulatory agenda, the first unified agenda under Trump, reduces that workload to just three rulemaking plans. Some of them are worth watching closely.

Silica No Longer Top Priority

Following the Occupational Safety and Health Administration’s (OSHA) issuance last year of controversial new regulations lowering caps on allowable exposures to silica particles, it was widely expected that MSHA would follow through and bring mining standards in line with OSHA’s general industry and construction standards. Continue reading

Working Effectively with Counsel During MSHA Investigation and Contest – [Webinar Recording]

On July 21, 2017, Nick Scala of Conn Maciel Carey’s national MSHA Practice, presented a webinar regarding Working Effectively with Counsel During MSHA Investigations and Contest.

July 21 Webinar Snip

Dealing with enforcement isn’t at the top of any operator’s favorite things list. It can be a stressful and concerning experience for even the most seasoned operations. Often companies decide to engage with legal counsel during serious investigations or as deadlines approach.

 This webinar will outline how to effectively work with counsel during stressful times, such as accident or fatality investigations or abatement and contest. Knowing when to contact counsel and what information should be transferred immediately can jump start the representation and help expedite a resolution.

 During this webinar, participants learned about:

  • When counsel should be engaged while dealing with enforcement personnel;

  • What information is essential when beginning an attorney-client relationship; and

  • Advice for working efficiently with counsel during investigations and contests.

Here is a link to a recording of the webinar with slides and audio. This was the seventh 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 info@connmaciel.com to be registered for the remaining MSHA webinars.

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