About Conn Maciel Carey’s National OSHA Practice

Conn Maciel Carey has a specialty practice focused exclusively on Workplace Safety and Health legal issues, led by attorneys who have extensive, hands-on experience in all aspects of OSHA and Cal/OSHA law, and who provide the full range of occupational safety and health law services to a diverse range of clients. Our experienced team understands the legal issues and knows the agencies and people involved in the full range of safety matters that our clients face. Our breadth of experience spans both private practice and government positions, offering us unique insight into how best to advise our clients.

Our OSHA and Cal/OSHA Practice stands out because of its deep bench of true specialist attorneys with a singular focus on workplace safety and health law, and because of our personal connections with the key players within OSHA and Cal/OSHA.  Despite the firm’s “boutique” size, as an OSHA and Cal/OSHA practice, we have the deepest bench of true specialist attorneys and professionals in the entire country. The Chair of the national OSHA Practice, Eric J. Conn, practiced for more than a decade alongside the first General Counsel of the OSH Review Commission, learning OSHA law and its context from the attorney who wrote the first decisions and interpretations of the OSH Act and OSHA’s regulations. Fred Walter, Of Counsel for our Cal/OSHA practice has practiced before Cal/OSHA for decades. OSHA Partner Kate McMahon is a former safety and environmental advisor on Capitol Hill.  Aaron Gelb heads our Midwest OSHA Practice out of our Chicago Office, Kimberly Richardson is our process safety guru, and Nick Scala leads our Mine Safety Practice.

All of these attorneys maintain close relationships with senior OSHA and Cal/OSHA officials. As a result, the firm’s national OSHA practice group has unique insight not only into workplace safety law, but also into the workplace safety regulatory agencies.

Our clients have safety needs and questions. We craft solutions and answers.  We support our clients across all industries through issues involving the following entities:

• Occupational Safety and Health Administration (OSHA)

• California Division of Occupational Safety and Health (Cal/OSHA)
• Other State OSH Plans
• Environmental Protection Agency (EPA)
• U.S. Chemical Safety and Hazard Investigation Board (CSB)
• U.S. Attorneys in the Department of Justice (DOJ)
• Mine Safety and Health Administration (MSHA)
• National Transportation Safety Board (NTSB)
• U.S. Bureau of Alcohol, Tobacco and Firearms (ATF)
• U.S. Coast Guard

Range of Work

• Accidents and Catastrophes
• Citations Characterized as “Willful” or “Repeated”
• Citations Issued Under OSHA’s Multi-employer Enforcement Policy
• Determination of whether injuries must be reported to OSHA
• Efforts to Achieve OSHA VPP Status
• Egregious and Significant Enforcement Cases
• Employee/Union Complaints
• General Duty Clause Violations
• Process Safety Management Citations
• Implementation of OSHA’s GHS Hazardous Communication Standard (HazCom)
• COVID-19 Compliance Issues and Best Practices
• Inspections Under OSHA’s Numerous National and Local Emphasis Programs
• Issues Related to OSHA’s Severe Violators Enforcement Policy
• M&A Deal Due Diligence Issues Involving Safety and Health
• Multi-agency Investigations (OSHA, CSB, EPA, MSHA, ATF, NTSB, etc.)
• OSH Act Criminal Referrals and Prosecutions
• OSHA State Plan Inspections
• Recordkeeping and Reporting Violations
• Representation of Employers and Industry Organizations in OSHA Rulemaking Proceedings
• Wall–to–Wall Inspections

  Illustrative Experience

Agriculture

• Defended a major grain and agronomy cooperative in a substantial OSHA enforcement action resulting from an engulfment accident, including convincing the U.S. Attorney’s office not to bring a criminal charge under the OSH Act.
• Bargained for a substantial reduction in a state OSHA enforcement action against a grain and feed manufacturer after a catastrophic grain elevator dust explosion.
• Negotiated a change in OSHA’s national enforcement policy to allow work inside grain bins with energized sweep augers.

Chemical Manufacturing

• Represented a specialty chemical manufacturer in multi-agency (OSHA, CSB, EPA, ATF, U.S. Coast Guard, and a state environmental regulator) investigations, inspections, and enforcement actions arising out of a catastrophic explosion in a reactor that resulted in two fatalities. OSHA’s enforcement action was cut by more than half; violations alleged by OSHA to be “Willful” and “Repeated” were withdrawn or re-characterized.
• Oversaw the on-site inspection under the PSM Covered Chemical Facilities National Emphasis Program of a high-profile chemical plant in West Virginia. A team of four compliance officers, including two PSM specialists from OSHA’s Salt Lake City Technical Center, spent more than two months scrutinizing all elements of the PSM Standard at the facility. At the conclusion of our work, OSHA did not issue any citations.

Construction

• Represented a construction general contractor in OSHA investigations of fatal construction accidents raising complex multiemployer worksite citation policy issues at Baltimore-Washington International Airport, the Pentagon, and Fort Meade. The result — No citations at any location.
• Managed numerous OSHA inspections, appeals of citations, and complex settlement negotiations following general construction, steel erection, and concrete shoring fatal accidents at construction projects throughout New York.

Health and Life Sciences

• Assisted a major health services provider in New York in challenging a General Duty Clause Workplace Violence citation issued after a mental health care provider was attacked by a patient during an inpatient group therapy session.
• Managed multi-agency investigations of one of the most significant combustible dust explosions in history. The explosion injured 42 employees, including six fatalities. We established an on-site Command Center, coordinated the investigation of a team of forensic experts, and managed the investigations and inspections of federal OSHA, state OSHA, CSB, EPA, DNR, ATF, FBI, SBI, the State Fire Marshal, insurance investigators for dozens of entities, and numerous plaintiffs’ attorneys. The process involved conducting hundreds of interviews and producing hundreds of thousands of pages of records. In the end, nearly half of the citation items were withdrawn and the penalty was reduced by 83%.

Hospitality

• Assisted a hotel employer in dealing with safety and health complaints raised by a union in conjunction with ongoing labor negotiations.
• Advised a major national hotel chain in resolving fire, electrical safety, and other citations arising out of a programmed inspection at a property in Chicago.

Manufacturing

• Conducted due diligence reviews, in which we identified key gaps in a Process Safety Management Program that resulted in substantial additional dollars transferring to our client in the overall structure of the deal.
• Managed a months–long wall–to–wall safety and health inspection of a weld and tire wire manufacturing facility in the Midwest that included key combustible dust, lead exposure program, and electrical safety issues.
• Defended a manufacturer in a U.S. Attorney investigation of possible criminal OSH Act violations, and bargained for the first ever “deferred prosecution agreement” in an OSHA case, ensuring the Company and its executives were not charged with or convicted of any criminal wrongdoing.

Natural Gas & Electrical Power

• Defended an oil and gas drilling specialist in an OSHA enforcement action arising out of a flash fire on a natural gas drilling rig in West Virginia. The fire involved the first alleged Flame Retardant Clothing PPE violation following OSHA’s controversial 2010 FRC enforcement memorandum. After months of litigation with the Solicitor’s office, a settlement resulted in the elimination of 75 percent of the citation items and proposed penalties.
• Represented a major electrical contractor in the Northeast in multiple electrocution accidents with positive outcomes for the client.

Petroleum Refining

• Managed inspections, investigations, and enforcement actions by OSHA, CSB, EPA, and the U.S. Attorney in relation to a catastrophic storage tank explosion, a confined space nitrogen asphyxiation accident, and a PSM Program Quality Verification for an East Coast petroleum refinery.
• Counseled petroleum refiners throughout the nation in preparing for, and defending, enforcement actions arising out of inspections under OSHA’s Petroleum Refinery Process Safety Management National Emphasis Program.

Retail

• Represented a major national retail trade association in the rulemaking proceeding for OSHA’s proposed injury and illness reporting rule.
• Defended numerous OSHA citations regarding blocked exits and exit routes, electrical safety, safe storage and handling of inventory, and issues related to training and operation of powered industrial trucks.