MSHA

MSHA Issues Guidance for Mine Operators and Independent Contractors to Mitigate and Prevent Spread of COVID-19

Theresa Green Leave a comment

By: Nicholas W. Scala and Conn Maciel Carey’s COVID-19 Task Force

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance.  Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.

Similar to the previous guidance issued by the agency, MSHA continues to rely heavily on best practices outlined byCOVID guidnce the Centers for Disease Control (“CDC”), however, unlike MSHA’s 2020 guidance, this time the agency lays out specific actions and policies it “recommends” operators undertake while highlighting several specific, existing MSHA regulations that can be applied to COVID-19 prevention for enforcement purposes.

Below, we take a look at some of the most impactful elements of the MSHA guidance, but for a complete review of the MSHA guidance, join us on Thursday, March 18th for the MSHA Defense Report 2021 Webinar – COVID-19 and MSHA: Best Practices and Compliance Strategies for Mine Operators.

COVID-19 Prevention Programs

 For the first time, MSHA formally recommends that each mine develop and implement a COVID-19 Prevention Program. These programs, which have been recommended by OSHA and are required in multiple state-plan OSHA Emergency Temporary Standards (“ETS”), are expected to be the mine’s (or contractor’s) outline and collection of COVID-19 mitigation efforts. Our Conn Maciel Carey workplace safety team has been recommending employers have these plans in place, and assisting clients with the development of COVID-19 Exposure Control and Response Plans throughout the pandemic.

Now, those employers regulated by MSHA will be expected to have the plans in place. In instances where OSHA has come on site for COVID-19 complaints or investigations, most often the first document request to the employer is for the site’s COVID-19 Prevention Program, even though under federal OSHA – as with MSHA – it is not currently required by regulation.

MSHA recommends a miner’s COVID-19 Prevention Program and plan would at a minimum: Continue reading →

In-Person OSHA, MSHA, and Labor Briefing (and Launch Party) in Columbus, OH – October 1, 2019

Eric J. Conn Leave a comment

Join Conn Maciel Carey for an In-Person OSHA, MSHA, and Labor Briefing in Columbus, OH on Tuesday, October 1, 2019, and stay for a cocktail reception to celebrate the launch of our new Columbus, Ohio Office.

This complimentary program will feature panel discussions with current and former representatives from the National Labor Relations Board, OSHA and MSHA addressing key enforcement and regulatory developments.  The government representatives will be joined by senior corporate counsel from several multi-national corporations and Conn Maciel Carey’s Labor & Employment and Workplace Safety Law specialist attorneys.  The plenary sessions will cover topics including:

  • OSHA policy and enforcement developments
  • NLRB rulemaking and Board case law updates
  • MSHA regulatory and enforcement priorities
  • Other trending topics (joint-employer, pension withdrawal liability, whistleblower / anti-retaliation claims)

There will also be breakout sessions with discussions led by CMC attorneys covering issues of particular concern to various industry segments.

Here is the current agenda for the event:

The briefing Continue reading →

Conn Maciel Carey Opens Columbus, Ohio Office

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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.

shutterstock_columbus color.jpg

“We are excited about our expanding Midwest presence” said the firm’s 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 United States with 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 principal 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.  Nick also supports the firm’s national OSHA Practice Group, Continue reading →

New OSHA Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking [Webinar Recordkeeping]

Kate M. McMahon Leave a comment

On April 17, 2018, Kate McMahon and Nick Scala, of the national Workplace Safety Practice at Conn Maciel Carey, presented a webinar: “New Silica and Beryllium Standards: Update on OSHA Chemical Rulemaking.”

OSHA’s struggles to reform its chemical exposure limits continue with the rocky roll-out of its two newest occupational exposure standards – Silica and Beryllium.  Both standards have faced legal challenges, but will survive in some form resulting in a full panoply of new obligations, including significant reductions in the allowable exposure levels to these chemicals, and a comprehensive set of ancillary requirements, such as housekeeping, hygiene, medical surveillance, recordkeeping, workplace signage, training, etc.

MSHA, even without its own Silica Standard on the books, has adopted some elements of the hierarchy of controls fundamental to OSHA chemical standards. MSHA also conducts exposure monitoring at least annually for respirable silica, and rigorously enforces silica exposure issues.  “Me too” Silica and Beryllium standards for the mining industry may also be in the offing.

Participants in this webinar learned about: Continue reading →

Breaking News: MSHA to Publish Final Rule for Workplace Exams in Metal and Nonmetal Mines

Eric J. Conn 3 Comments

By Nicholas W. Scala, Chair of Conn Maciel Carey’s national MSHA Practice

As a parting gift from Joe Main, the departing Assistant Secretary of Labor for the Mine Safety & Health Administration (MSHA), MSHA released this week the final rule for Examinations of Working Places in Metal and Nonmetal Mines. MSHA first proposed rebooting 30 C.F.R. §56/57.18002 on June 8, 2016. After an extended public comment period, ending on September 30, 2016, MSHA modified elements of the proposed rule while crafting the final version which will be formally published in the Federal Register next Monday, January 23, 2017.workplace-exam-rule

The effective date, when MSHA will begin enforcement of the new provisions within the final rule, is May 23, 2017 or 120 days following publication on January 23rd. Until the effective date, the existing provisions of §56/57.18002 will remain the standard for enforcement purposes.

Under the current standard mine operators must perform a workplace examination at least once per shift, maintain a record for twelve (12) months which must include the name of the examiner, locations of areas examined and the date.

The final rule, announced on January 18, 2017, will increase the responsibilities for mine operators to comply with the workplace exam standard. Effective May 23, 2017 operators must:

  1. Perform a workplace examination BEFORE any miners begin work in an area;
  2. Promptly notify miners of any adverse conditions in their working area before they are exposed to the adverse conditions;
  3. Maintain a record of the examination for twelve (12) months, which includes:
    • The name of the examiner
    • Date of the exam
    • Locations examine;
    • Descriptions of any and all adverse conditions found during examination (even if corrected immediately)
    • Date of corrective action
  4. Make records available to MSHA inspectors AND miner representatives, providing copies upon request.

Continue reading →

Clinton or Trump? The Future of Employment Law and Workplace Safety Regulation

Eric J. Conn Leave a comment

By Kara M. Maciel, Eric J. Conn and Nick W. Scala

What has evolved (or devolved) into perhaps the most controversial election in American history, could translate in a couple of months into a whirlwind for labor and workplace safety policy. Stark differences between the major candidates promise either an onward march for Obama-era rules and enforcement philosophy, or a sudden rollback of the Obama Administration’s aggressive regulatory and enforcement agenda.

How this election turns out will have lasting consequences for a range of labor initiatives and policies, many of which have led to some of the Obama Administration’s most heated policy debates. These range from forcing disclosure of so called “persuaders” involved in union organizing to a publicelection-webinar-cover-slide shaming campaign seeking to put employers’ safety data online.

As we discussed during a recent Conn Maciel Carey webinar, the results on Nov. 8th will have a huge impact on how the Labor Department proceeds with both new regulations and enforcement policies. Everything from Wage and Hour to OSHA and MSHA will be affected – and stakeholders will feel the differences quickly regardless who wins the election.

On most issues, a Clinton win would cement what the Labor agencies under Obama view as their mandate to keep issuing tougher rules on behalf of workers and unions. Generally, an election of Trump means DOL will scrap the lion’s share of its current agenda, and begin to repeal regulations finalized over Obama’s two terms, since his economic plan relies heavily on easing regulatory burdens on businesses. Continue reading →

[Webinar] OSHA, Labor & Employment, and MSHA Impacts of the Upcoming Presidential Election

Eric J. Conn Leave a comment

On Tuesday, October 25, 2016 at 1 PM Eastern, join Eric J. Conn, Kara M. Maciel and Nick W. Scala of Conn Maciel Carey’s national Labor and Employment Practice and Workplace Safety Practice, for a complimentary webinar regarding the OSHA, Labor & Employment, and MSHA Impacts of the Upcoming Presidential Election. election-webinar-cover-slide

In just a few weeks, we will have the opportunity to enter the voting booth, and cast a ballot to elect the next President of the United States.  The platforms and proposed polices of the candidates are more divergent than ever.  The outcome of this election will significantly impact this country’s future with respect to healthcare, military actions, economic policy, and of course, workplace challenges, like union organizing, and occupational safety and health regulation and enforcement.  This webinar will discuss the public positions taken by both candidates about labor employment subjects and safety and health enforcement and rulemaking, and the likely impacts depending on which candidate takes the White House.

Here is a link to register for this webinar.  If you missed Continue reading →

Announcing Conn Maciel Carey’s 2016 MSHA Webinar Series

Eric J. Conn Leave a comment

MSHA Webinar SeriesAs we enter the home stretch of the Obama Administration, we are seeing increased MSHA enforcement, from more frequent and aggressive inspections to more citations with higher penalties.  MSHA is also trying to cram in a few more onerous new rules and regulations at the last-minute.  With the mining industry swirling to understand MSHA’s new proposed rules and enforcement efforts, it is more important now than ever before to be prepared for what’s ahead from MSHA. 

Conn Maciel Carey’s complimentary 2016 MSHA Webinar Series, hosted by the firm’s national MSHA Practice, is designed to give you the tools to avoid becoming the next MSHA-enforcement poster child. 

How Changes to MSHA’s Workplace
Exams Rule Will Affect Your Mine

Thursday, September 15th

Navigating Multi-Employer
Mining Sites

Tuesday, November 15th

MSHA, OSHA, and Employment Law Impacts of the Upcoming Presidential Election

Tuesday, October 25th

MSHA Hazard Complaints and Whistleblower Protections

Thursday, December 15th

 SEE BELOW FOR DESCRIPTIONS OF EACH WEBINAR AND REGISTRATION LINKS

Click here to register for the entire series.

Continue reading →

MSHA Announces Proposed Rule on Workplace Exams

Eric J. Conn Leave a comment

By: Nicholas W. Scala

Last week, MSHA released its Proposed Rule for the Examinations of Working Places in Metal and Nonmetal Mines in the Federal Register, the Proposed Rule was formally published on June 8, 2016. The Proposed Rule addresses modifications to the current MSHA standards regarding Examinations of Working Places, 30 C.F.R. §56.18002 and §57.18002 (for underground M/NM mines).MSHA Rule

In the proposed rule, MSHA suggests modifications to the examination format and record keeping requirements of the existing standards.  Under the existing workplace exam standards, a mine operator is required to comply with the following provisions:

“(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.

(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.”

During the last 22 years, MSHA issued five Program Policy Letters (PPL) clarifying and emphasizing certain aspects §56/57.18002. Most recently, MSHA issued a PPL in July 2015 that many considered de facto rulemaking for the way it discussed the future enforcement of training requirements for competent persons. The July 2015 PPL (PPL P15-IV-01) encouraged that a foreman or other supervisor act as the competent person for the purpose of workplace exams as a “best practice.” A best practice that also directly links the recognition of hazards, or lack thereof, to the company through an agent of management for elevated enforcement from MSHA, and possibly special investigation under Section 110 of the Mine Act.

Continue reading →

Announcing Conn Maciel Carey’s New “MSHA Defense Report” Blog

Eric J. Conn Leave a comment

Conn Maciel Carey is pleased to announce the launch of the The MSHA Defense Report blog, curated by the top-notch MSHA attorneys in our national MSHA • Workplace Safety Practice Group.

The MSHA Defense Report will provide stakeholders in the mining industry with useful legal and regulatory updates, as well as analysis of trends in the mine safety and health legal landscape. Whether reviewing new decisions from the Federal Mine Safety & Health Review Commission and its Judges, or the latest important enforcement initiatives policy and rulemaking issues from the Mine Safety and Health Administration, The MSHA Defense Report will be the destination for the nation’s mine operators to access the latest news about the full range of safety and health topics affecting the Industry.

MSHA Blog

As a true complement to Conn Maciel Carey’s national OSHA Practice Group and its OSHA Defense Report blog, the MSHA Practice and its new MSHA Defense Report blog are valuable resources to learn about the significance of new legal developments in federal mining regulation from the quarry to the courtroom, helping operators prepare and respond.  The blog will also offer practical advice and creative solutions, with the goal of minimizing exposure to liability.

We hope you visit the blog often and provide the MSHA Group with feedback about topics of interest.

Continue reading →

Conn Maciel Carey Launches MSHA Practice and Adds Prominent Mine Safety and Health Attorney

Eric J. Conn Leave a comment

Conn Maciel Carey is thrilled to announce the addition Nicholas W. Scala, a prominent Washington, D.C. Mine Safety & Health Law specialist attorney, to the firm’s national Workplace Safety Practice. Mr. Scala will Chairs the fMSHA Practice Page Imageirm’s new national MSHA Practice Group, which expands and complements the firm’s Workplace Safety Practice.  He has extensive experience and expertise in handling complex Mine Safety and Health Administration (“MSHA”) rulemaking, as well as regularly assisting clients in accident and fatality investigations and a broad range of enforcement-related matters.

Conn Maciel Carey’s national MSHA Practice will represent and advise metal/non-metal and coal mining companies, cement manufacturers, construction entities and other employers that operate in the mining industry in all phases of interaction with MSHA, particularly companies challenging and litigating enforcement by the agency.

Continue reading →