Dissecting MSHA’s 2019 agenda

Bill Doran, a workplace safety lawyer at Ogletree Deakins in Washington, D.C., discussed the current dynamic between the Mine Safety & Health Administration (MSHA) and the mining industry at the 2019 Pit & Quarry Roundtable & Conference.

Doran, whose practice is concentrated in safety and health law and litigation, touched on the agency’s priorities under Assistant Secretary David Zatezalo. Doran also discussed the current state of MSHA inspections and the agency’s use of coal inspectors at metal/nonmetal mines, as well as the possibility of MSHA developing a crystalline silica standard of its own.

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P&Q: Almost a year passed before former coal exec David Zatezalo was confirmed as the assistant secretary at MSHA in November 2017. We are now more than a year into Zatezalo’s tenure at the head of the agency. What are your impressions of MSHA under Zatezalo thus far?

Doran: There’s definitely a different atmosphere in terms of the ability to get in and see people at the agency. One example: Toward the end of the [Obama] administration, there were a number of metal/nonmetal districts that were just rejecting informal conferences without even looking at the conference requests or any of the issues. That’s pretty much stopped at this point.

I do attribute a lot of that to the impact [MSHA senior advisor] Ed Elliott has at the top. (Editors’ note: Elliott is the former veteran safety and health director at Rogers Group, a privately-owned road construction and crushed stone company.) Because Elliott had to live through that process, he knows what it’s like having those avenues of access cut off. So, that’s a good thing.

From my perspective as someone who represents companies in contest proceedings and deals with the agency a lot in enforcement situations, [MSHA is] still an enforcement agency. But there’s no question the agency right now is much different than it would have been two years into a different administration.

P&Q: Many aggregate producers say it’s business as usual with MSHA on the front lines, in terms of how inspectors go about their business. Will it take time for some of these top-down MSHA actions to get to the producer level?

Doran: It takes time from one administration to the next to have an impact on the boots-on-the-ground inspectors who have been doing this for 10 or 15 years. They don’t stop on a dime and focus in a different direction. That, to a certain extent, has been aggravated by this “One MSHA” program.

You have a lot of people flowing into the metal/nonmetal ranks who are still sort of learning that process. The agency sort of assured everyone that no one is coming over to the metal/nonmetal side who hasn’t had training and a focus on where things need to be, but we’re still running into a lot of cases that develop because there’s been an understanding of how things work on the coal side, and you [then] apply things to the metal/nonmetal side. That’s just not how things work. I know that’s been a frustrating thing for [producers].

I will say this: The agency keeps talking about how this (“One MSHA”) is going to streamline resources. That may be true. But the unspoken basis for this “One MSHA” program is the fact they have a lot of coal districts that just don’t have enough mines to inspect. So, they’ve got to move people to the metal/nonmetal side. Otherwise, they’re looking at a complete upheaval within that agency.

Some of it (“One MSHA”) makes a lot of sense. If you’ve got inspectors in a coal field office that’s closer to a metal/nonmetal operation, it makes sense, in theory, to have those people avoid the travel costs.

The area where I see [that] more often than not is in special investigations. [MSHA has] special investigators on the coal side and special investigators on the metal/nonmetal side. Rather than send somebody 300 miles from a metal/nonmetal [office] to do a metal/nonmetal investigation, we’ve started to see coal investigators [in metal/nonmetal investigations].

You might say that makes sense, because they’re all dealing with a particular provision of the Mine Act: Section 110(c). But the reality is when they’re looking at the underlying facts [and] at the regulations, that’s where there’s a disconnect. They’re applying their understanding of how that should work at a coal operation. That’s where you start having problems.

There’s still a lot more training that needs to go on if this is going to work.

P&Q: MSHA’s final 2018 workplace exams rule went into effect last June, putting an end to a rocky back-and-forth between the agency and the industry on this particular rule. The industry was able to score “a win” of sorts toward the end of the process in terms of the rule’s language (i.e., conducting exams “as work begins”). What’s your take on how this rule ultimately came together?

Doran: Certainly, it was a more positive outcome at the end of the process. Ultimately, most [producers] didn’t think the changes to the workplace examinations standard were necessary.

It’s always amazing to me: The agency has wanted to change that standard for 20 years, and they’ve tried to do it informally without going through rulemaking on several occasions. But it did provide an opening for the new administration to add some additional requirements that made the regulation a little more palatable to the industry.

Talking to Ed Elliott, I think there’s still this focus to go slow, but I think you’re going to see things ratchet up in 2019. Some of that is going to be pushed by a case that came down within the last year: Sun Belt Rentals, which now has provided a criteria for what an inadequate workplace exam is.

Prior to this, if MSHA wrote a citation saying, ‘Well, you didn’t see this particular thing on your workplace exam, consequently here’s your citation for doing an inadequate workplace exam,’ the industry would say: ‘Wait a minute, there’s no criteria for that, how do we know what’s inadequate and what’s not?’

Now, it’s what a reasonably prudent person familiar with the hazards of the mining industry would perceive to be an inadequate workplace exam. So if you walk through an area and you’ve got material on the ground – maybe a broken handrail – and you look at the workplace exam and there’s no indication that it was identified, that is now going to be deemed an inadequate workplace exam.

I think that’s freed up MSHA to start thinking in terms of writing that citation more. It’s going to be interesting in 2019 where they go with it.

P&Q: Ed Elliott, at last fall’s Ohio Aggregates & Industrial Minerals Association (OAIMA) Annual Meeting & Trade Show, made an interesting statement, saying aggregate producers shouldn’t want silicosis to be the “next black lung.” Crystalline silica isn’t on MSHA’s agenda for 2019 and Elliott indicated at the OAIMA meeting that nothing is immediately forthcoming from MSHA on silica. Considering the Occupational Safety & Health Administration finalized a silica rule for construction back in 2017, what are your expectations for potential MSHA rulemaking on silica?

Doran: I personally will be surprised if, before this next election – or during a subsequent four years of a Trump administration – that rulemaking moves forward in the face of the president’s very black-and-white requirement that there be two regulations taken away for every one new regulation.

That seems to be having a big impact. You can see that at MSHA, where rulemaking has pretty much come to a standstill.

That said, I think Ed Elliott’s comment is reflective of some pressure they’re (MSHA) feeling. They’re feeling pressure from the fact that every other industry in the country is under [OSHA], and OSHA has cut that [permissible exposure limit] in half.

Also, some people may have seen that “Frontline” documentary that focused specifically on crystalline silica and silica mining by the agency in the coal fields in Kentucky and West Virginia. Those things can all put pressure on the agency.

Notwithstanding the president’s very specific focus on slowing down lawmaking, you can’t underestimate his focus on his base. One of his strongest bases is in the coal fields. If they can generate a groundswell with all of this information in the coal fields, then there’s no telling what impact that might have on the president in terms of moving that type of regulation forward. That said, I don’t see it happening anytime soon.