MSHA’s evolution through the years

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 presidency, 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.

“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 specifically 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,” he 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.

“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 shared related to enforcement. Scala also recognizes that the number of citations issued hasn’t dropped, but that 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.”

MSHA recently issued a request for information on silica, signaling that some sort of rulemaking could be on the horizon. It’s vital, Scala says, that aggregate producers be heard before a rule is put in place.