MSHA’s transitions through the Trump Administration

As of press time, former coal executive David Zatezalo (pictured) was awaiting confirmation from the U.S. Senate to become the next assistant secretary of MSHA. Photo courtesy of the Wheeling News-Register.

A number of interesting issues occupied the attention of the mining industry in 2017.

Most of these issues arose as a result of the new administration in Washington. From presidential promises to launch a national infrastructure rebuilding effort, rejuvenate the coal industry, and eliminate over-regulation, there has been a great deal of enthusiasm generated regarding the potential for future industry growth.

While it remains to be seen whether these promises will survive the reality of Washington gridlock, there is no question that this focus has already had some impact on mine safety.

Around this same time in 2016, the mining community was anticipating new rulemaking efforts for crystalline silica, underground proximity detection and diesel exposure. Since the 2016 election, the Mine Safety & Health Administration (MSHA) has shelved all of those efforts.

Further, the revised workplace examination standard, which was originally supposed to take effect on May 23, 2017, is now scheduled to take effect on June 2, 2018, following several postponements and newly proposed rulemaking modifications. These rulemaking developments have been interpreted by many in the industry as evidence of a new, less aggressive regulatory approach by the new administration.

The next assistant secretary

Industry observers have also pointed to the president’s nomination of David Zatezalo as the next assistant secretary of labor for MSHA as bolstering this interpretation. Zatezalo has held practically every position that can be held in the coal business – working miner, supervisor, mining engineer, mine manager and CEO – and has been critical of MSHA enforcement strategy.

Many see his nomination as an effort to instill a more cooperative approach at the agency. One case in point is the fact that at his confirmation hearing, he expressed support for the idea of reconstituting the MSHA Small Mine Office and providing training assistance to the industry.

Zatezalo has unique experience for an MSHA assistant secretary. He has had a close-up view of the sharp end of MSHA enforcement. One of his company’s mines was put on a corrective action program to stave off pattern of violations enforcement. Moving forward into 2018, it will be interesting to see how this experience impacts his stewardship of this controversial enforcement tool.

Some carryover

Zatezalo is expected to take a different approach to the position than his predecessor, Joe Main (pictured), who was previously head of the United Mine Workers of America. Photo courtesy of MSHA.

While enforcement strategies may change, the Mine Act still contains all of the legal requirements that have been in place since 1977. Inspectors will continue to conduct at least two annual inspections at surface mines and four at underground mines.

Enforcement will continue, and company safety efforts will still be as important as ever. An evaluation of the mine safety landscape in 2017 reinforces the critical importance of continued safety focus by everyone in the industry.

At press time, the metal/nonmetal mining industry in 2017 was on pace to have the lowest number of fatal accidents on record. (Coal had its lowest ever total in 2016, although that number was exceeded in 2017.)

Similarly, the metal/nonmetal industry’s injury and illness rate per 200,000 hours worked continues to fall. While any fatality or injury is one too many, these statistics demonstrate the progress that can be made with hard work and commitment.

These are positive numbers, but many of the old trends still exist. For instance, as in past years, a significant percentage of the fatal accidents involve mobile equipment. While each scenario is different and contains multiple variables, many of the facts in the 2017 accidents are familiar.

These include an over-travel at a dump site, a pick-up truck run over by a haul truck, and two separate situations in which equipment operators were struck by their own vehicles. A significant percentage of fatal accidents continue to involve contractors.

As of this writing, two of the metal/nonmetal fatal accidents involved contractors. This is a decrease from past years (five in 2016, six in 2015 and nine in 2014) but, nonetheless, an indication that close attention needs to continue to be directed at the training and work procedures of the short-term contractors that visit mine property.

A recurring accident theme involves persons working alone, an issue MSHA targeted in a safety initiative earlier in the year. That initiative, supported and encouraged by the entire mining community, is the type of joint effort that will continue to have significance in the new year and beyond.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.