Characterizing MSHA’s latest enforcement approach

By |  October 7, 2019
Photo: NSSGA

MSHA Assistant Secretary David Zatezalo, seen here at the National Stone, Sand & Gravel Association’s (NSSGA) Annual Convention in 2018, is nearing the nearing the end of his second year at the agency. Photo courtesy of NSSGA

Don Foster began his career with the Mine Safety & Health Administration (MSHA) in 1991, and he retired as a district manager at the agency during the Obama administration.

Although Foster hasn’t worked for MSHA during the Trump administration, he was privy to the inner workings at the agency across three decades. Foster also continues to converse with former colleagues who are active at MSHA, so he recognizes the stark differences in how the agency is run under Assistant Secretary David Zatezalo versus how it was run under Zatezalo’s predecessor.

“There’s been very little movement or any focusing on a particular area,” says Foster, who now acts as a consultant after serving MSHA in several capacities. “In the former administration, there was significant movement in silica regulations and pattern of violations (POV).

“More recently, enforcement levels have dropped,” he adds.

Foster shared insights like these during a panel discussion in Columbus, Ohio, hosted by Conn Maciel Carey, a law firm focused on labor and employment, workplace safety, and litigation.

In terms of enforcement, Foster takes note of drops in S&S (significant and substantial) violations and unwarrantable failures.

“This is the first year I know of that the national S&S rate dropped below 20 percent,” Foster says. “That’s significant.”

According to Foster, the number of overall citations issued is up under the Trump administration. Most citations, however, are of the non-S&S variety, and Foster suggests mine operators are more comfortable accepting these than the more severe kind.

Similarly, Foster suggests operators are less likely to contest citations because the majority issued are less severe.

“There seems to be reluctance to mitigate or conference little violations, but little ones can lead to larger violations based on the history,” Foster says.

Another perspective

Nick Scala, a partner of the MSHA practice at Conn Maciel Carey, echoes a number of the sentiments Foster shares related to enforcement. Like Foster, Scala recognizes that the number of citations issued hasn’t dropped but the number of unwarrantable failures and S&S violations has.

That MSHA has moved away from its Rules to Live By program under the new administration is also significant, Scala says. But one area in which the agency has ramped up efforts is in miner health.

“There’s a great deal more health sampling taking place on MSHA sites than previous years,” Scala says. “Silica is the main attention in metal/nonmetal. There’s a big emphasis on continuous monitoring.”

Recently, MSHA issued a request for information on silica, signaling that some sort of rulemaking could be on the horizon.

“It’s important to make sure the industry has comment on it,” Scala says.

Other MSHA business

The agency’s “One MSHA” initiative continues to draw attention from mine safety stakeholders, as well.

The goal of the initiative is to blur the lines between coal and metal/nonmetal, but the blurring means reallocating personnel and redrawing the agency’s district lines.

As Scala describes, the goal is an adventurous one. The initiative is also one that remains a work in progress.

“Mines always dealt with same personnel,” Scala says. “You have a relationship and established that. Without any notice, MSHA is switching these mines. That has been and will continue to be a challenge to mine operators.”

Consider, too, that coal and metal/nonmetal operations are regulated differently. The same goes for surface and underground sites. So the shift of personnel from one sector to another means inspectors must familiarize themselves with rules they may not have enforced in the past.

Some adjustments may also be ahead in how inspections are handled, too. For example, Foster describes a coal inspector’s day as one that starts at home, shifts to the office and later to the mine, where two or three hours might be spent doing an inspection.

After the two or three hours, the coal inspector often drives back to the office and showers before returning home. The inspector will embark on this same routine the next day, returning to the same mine to continue the inspection. This cycle can continue for weeks on end.

Metal/nonmetal inspectors traditionally complete their inspections in a single day, so Foster suggests some mine operators who take on an inspector from coal may have to bear some change.

“That’s a big challenge,” Foster says.

MSHA coal offices continue to close, he adds, and another significant shift of personnel may be on the way.

“I do know coal has taken over some metal/nonmetal mines in eastern Ohio,” Foster says. “The whole state of Virginia is now under coal.”

Kevin Yanik

About the Author:

Kevin Yanik is editor-in-chief of Pit & Quarry. He can be reached at 216-706-3724 or

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