Exploring the transition ahead at MSHA

The Trump administration is off and running, but the aggregate industry still awaits answers to a number of questions related to its future with the Mine Safety & Health Administration (MSHA).

Who will replace Joe Main? In what direction will the next assistant secretary take the agency? And what will become of proposed rules and existing regulations?

Bill Doran, an attorney at Ogletree Deakins whose practice is concentrated in safety and health law and litigation, recently shed some light on the transition in Washington. Doran, who also serves Pit & Quarry as an MSHA & The Law columnist, offered his perspective on a number of questions at the Pit & Quarry Roundtable & Conference in Scottsdale, Arizona.

Given the change in leadership at MSHA, do you anticipate there will be any significant change in course by the agency in its enforcement and rulemaking efforts? If so, what are some of the changes we might see?

Doran: Things can change quickly. In fact, for those of you who watch MSHA closely, things changed [Jan. 17] when MSHA posted its new workplace examination regulation. After it is published in the Federal Register, I believe there is going to be about a 120-day period before it is official and becomes the law.

With respect to the agency itself and what’s expected, there is certainly a groundswell of support within the mining industry for a more cooperative relationship with MSHA. While there have been a number of partnerships between the agency and some of the state and national associations during Joe Main’s leadership, over the last seven years, he has steered the agency toward a more aggressive enforcement stance, including everything from pattern of violations enforcement to impact inspections. A number of these developments have really ratcheted up concern within the industry about the focus of the agency.

Things do move slowly after a transition. MSHA will have its requirements under the Mine Act to do inspections every year at surface operations and underground operations – that doesn’t change. The inspection teams still come, and they’re trained to look for violations. But I think there is a chance that the trend will probably be toward a more cooperative advisory-type role [by MSHA] in terms of general enforcement.

What can you tell us about the process to find the next agency head?

Doran: The transition team has approached many stakeholders in the mining industry to ask for some insight on the names that have been floated out there. Without endorsing any one candidate, I can tell you that there are a lot of good candidates who appear to be being considered by the transition team who also appear to be interested in the assistant secretary position.

To date, the general theme seems to be that the next assistant secretary will be someone from the industry; someone with senior mining experience; someone who understands the MSHA bureaucracy and has worked within that framework for a period of time; someone who understands the pressures of operating under the Mine Act and operating safely, efficiently and effectively; as well as someone who understands that companies share a lot of the same goals as MSHA with respect to maintaining a safe workplace and making sure people are safe and healthy.

The names that we have heard have those types of qualities and experience levels. That person will, to a certain extent, represent a little bit of a change from the Joe Main years. No one could ever doubt Joe’s commitment to safety, but I think it is fair to say that he also had a certain level of suspicion with respect to the motivations of the mining industry.

Does the nomination of Andy Puzder, the CEO of CKE Restaurants, a company that franchises Carl’s Jr. and Hardees fast-food restaurants, offer any indications about how the Department of Labor, particularly MSHA, will run?

(Editor’s note: Puzder withdrew his nomination for labor secretary Feb. 15.)

Doran: I’m not a labor lawyer, although everyone I work with is a labor lawyer. So I hear a lot of the thought process that goes into how the Department of Labor may change.

Assuming you end up with someone who’s going to have that industry background, I think you can certainly expect to see someone who is less focused on sort of the activist mentality that has existed at the National Labor Relations Board over the last few years.

With respect to how that translates to MSHA, people who’ve worked with MSHA over the years understand that the Mine Act is in place and it’s very difficult – whether it’s in a Republican administration or Democratic administration – to make dramatic changes. Usually, changes to the Mine Act happen when statutory provisions or regulatory provisions are made more stringent and tougher. Usually, that happens after a major coal mine accident.

It’s very difficult for somebody to come in and make major changes right away based on the way the agency works. It’s a cultural shift when someone gets in. There’s a year or two before that person can have an impact on the district level to get the enforcement process to change.

I think you’re already seeing, to date, the recognition at the agency that things had to change a little bit. You’re seeing the diesel rule that was moving forward has now been put off for a year, and there’s been a focus on getting the associations and stakeholders involved in partnership meetings to talk about best practices with respect to diesel.

You have also seen a major withdrawal from what was probably going to be a barrier to cooperative work within the industry – the civil penalty rulemaking. That’s been completely stopped at this point.

I think there was a realization that, especially with the election results, that some of those big battles on the horizon were not going to be helpful and were not going to move the industry or the agency forward.

On the campaign trail, President Donald Trump pledged to eliminate two existing regulations for every one new regulation that is introduced. Is this a feasible approach from your vantage point? Assuming it is at least somewhat feasible, what does this mean for existing MSHA rules and regulations?

(Editor’s note: President Trump signed an executive order Jan. 30, after this Pit & Quarry Q&A with Doran, requiring federal agencies to cut two existing regulations for each new regulation introduced.)

Doran: It’s an interesting proposal. If you look at Section 101 of the Mine Act, there is potentially an argument that the Act will prohibit this two-for-one approach. In order to eliminate a standard, you would have to conduct a rulemaking proceeding. You would also arguably have to demonstrate that a new standard was not eliminating the safety effectiveness of another standard. That is a challenge when you are simply eliminating two regulations to make room for a new standard. At the very least, it will likely produce a great deal of litigation.

That doesn’t mean you can’t focus a little bit of attention in terms of how you enforce those standards. Certainly, if there was a feasible way to adjust enforcement of certain standards, I have a few candidates.

One thing I do on a regular basis is represent companies and supervisors in special investigations. Often, I’ve had to represent an individual supervisor who’s been accused of knowingly violating a standard that relates to a housekeeping issue. I’ve seen cement operations at risk of having a pattern of violations notice issued at their operation because they’ve racked up housekeeping violations.

You can argue about the relative safety impact of housekeeping, but the extent that it’s used by the agency has been dramatic and it has really put a lot of companies and individuals in harm’s way from an enforcement standpoint.

There are a lot of things the agency can focus on short of eliminating standards – which is legally difficult – that could really serve to improve the enforcement situation.

How would you describe Joe Main’s legacy at MSHA? Also, considering the new administration is likely to take a number of government agencies in new or different directions, is Main’s legacy at MSHA in jeopardy?

Doran: As I mentioned before, it takes a while for things to change. Joe Main’s legacy – pattern enforcement [and] a real emphasis on impact inspections, especially following accidents – I think those things are in place.

One of the issues I know the industry has been concerned about for some is that Joe Main focused on deals with the concern that many citations and orders often don’t really relate to the types of issues that produce accidents. MSHA had an initiative called Rules to Live By where it went back and looked at the safety issues that occurred in those accidents. I think it is fair to say that MSHA headquarters tried to focus on the regulations that have come up more often in those sorts of situations. Rules to Live By became has become a basis for MSHA to focus attention on operators that it considers to be less focused, from a safety perspective, because more of these standards were being cited.

I think the Rules to Live By enforcement effort is going to remain in place and will still be a part of the enforcement landscape long after Joe Main has left the building.

Joe Main indicated on a year-end call with members of the press that work remains to be done in terms of crystalline silica monitoring. What is the status of MSHA’s proposed regulation on silica?

Doran: That will be a major indicator of the tact the next leader of MSHA will take when he or she takes office. Right now, the agency is focused on issuing a proposed rule by April of this year. The anticipation is that it’s going to follow pretty closely the OSHA (Occupational Safety & Health Administration) regulation that was just implemented. But I think there’s consensus that there’s going to be some pushback on that timetable.

With diesel being pushed back a whole year – and crystalline silica being a more far-reaching standard – I’ve got to believe there’s going to be some more time built into the [silica] process.

What impact do you expect agency-industry partnerships to have on enforcement moving forward?

Before Joe Main became assistant secretary, I believe that he was a critic of these partnership arrangements and a critic of the types of cooperative programs that OSHA runs. He saw the agency as an enforcement agency.

I think he got some perspective in the fact that the agency-industry partnership is really responsible for Part 46. He got to see that before he became assistant secretary. I think his views on things changed a little bit.

But with respect to the future opportunities of agency-industry partnerships, it’s really going to take leadership at MSHA that’s committed to that process. It’s also going to take people who have practical expectations about what can be accomplished.

The industry would generally like to see a system that takes a company’s good safety performance into account at the inspection stage, rather than just at the civil penalty stage. However, notwithstanding the constraints of the Mine Act, even if this type of reduced enforcement arrangement were possible, it will be difficult to change the mindset of MSHA inspectors who have basically been trained to go to an operation a specific number of times per year and write a citation for any infraction they see.

The decline of the coal industry in recent years precipitated a shift of some MSHA inspectors in that sector to the metal/nonmetal side. What effects has this shift had on inspections? What are the biggest downsides of having a coal mine inspector suddenly working on the metal/nonmetal side?

Doran: Anecdotally, there’s been a great deal of inconsistent citation writing by a number of the inspectors who have been brought down to the Southeastern District. That’s produced more litigation. From my perspective, we’ve had to deal with sort of learning curve that a lot of coal mining inspectors have when they shift to metal-nonmetal; specifically with respect to things like highwalls at aggregate operations and the production process at cement plants.

It’s just a different framework for inspectors to be focused on, going from Parts 75 and 77 to Parts 56 and 57.