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Ogletree Deakins’ Doran discusses a new era for MSHA

By |  August 13, 2021

Bill Doran, shareholder of the Washington, D.C., office at Ogletree Deakins, is a regular contributor to Pit & Quarry whose practice is concentrated in safety and health law and litigation. Doran offered new insights on the Mine Safety & Health Administration (MSHA) at the 2021 Pit & Quarry Roundtable & Conference, reflecting on former assistant secretary David Zatezalo’s tenure at the agency, exploring MSHA’s priorities under the Biden administration, and more. The conversation presented here took place June 3, and was edited for brevity and clarity.


MSHA 2017-20 REFLECTION

P&Q: With the Biden administration taking over this year, the pendulum will be swinging back to a Mine Safety & Health Administration (MSHA) that will be more aggressive with enforcement and rulemaking. But before we look ahead, let’s look back and discuss MSHA as it was from 2017 to 2020 under the Trump administration and assistant secretary David Zatezalo. What is Zatezalo’s legacy at the agency? What would you consider his top contributions and accomplishments to be? What didn’t Zatezalo do that maybe you expected him to during his tenure?

Bill Doran Pit & Quarry Roundtable and Conference 2021 Photo: PamElla Lee Photography

Ogletree Deakins’ Bill Doran, left, says the next assistant secretary of labor at the Mine Safety & Health Administration will “have to implement the Biden administration’s really focused, more aggressive enforcement strategy.” Pictured alongside Doran is P&Q’s Kevin Yanik. Photo: PamElla Lee Photography

DORAN: Dave Zatezalo is going to be remembered for holding the line that the Trump administration set on rulemaking. Rulemaking pretty much came to a complete stop. He resisted a great deal of pressure from labor unions and from Congress on crystalline silica, and he even declined to put out the powered haulage plan that his administration put together.

Also, in the last two years of his administration, you saw a significant decrease in more serious enforcement. 110(c) investigations, which had been a hallmark of the Obama administration, sort of fell off the map. There was a point where each district probably had somewhere in the neighborhood of five or six special investigators.

Toward the end of the administration, most of those investigators had gone back into the inspection ranks. Some districts had maybe one investigator. Basically, you were seeing fewer 104(d) citations, unwarrantable failure citations and fewer investigations.

Probably the No. 1 thing that he’ll be remembered for is the ‘One MSHA’ initiative, where MSHA pretty much merged their coal and metal/nonmetal divisions into one consolidated organization. This resulted in a number of situations where companies have been put under the jurisdiction – or at least had operations put under the jurisdiction – of traditionally coal districts.

The unspoken purpose of this was really to save some of the coal districts that were having a great deal of trouble finding things for a lot of coal inspectors to do.

P&Q: With the ‘One MSHA’ initiative, is there any ‘undoing’ that realignment of resources by the agency? Or, are we too far down the road of reorganization?

DORAN: My guess right now is that it’s too far down the road. Jeannette Galanis, who is the acting assistant secretary right now, has indicated in some of her public pronouncements that she thinks it’s too soon to decide whether this is an effective program or not. She wants to give it more time and – quite frankly – was very defensive of what it’s been able to accomplish at this stage.

Now, she has committed that the agency is going to continue to train coal inspectors to get them more up to speed on what’s happening in metal/nonmetal operations. So, the short answer is: I don’t see it changing anytime soon.

MSHA 2021-24 OUTLOOK

P&Q: Galanis was appointed to her role this February, but I’m guessing that is a temporary post. Can we expect President Biden to put forth a nominee for assistant secretary anytime soon? Are you hearing any names in particular pop up for the post? If you are, what’s their background? Any candidates from within metal/nonmetal or possibly even the aggregate industry?

DORAN: I don’t sense a real urgency in filling that slot. There’s still some efforts ongoing. But I haven’t sensed the same urgency that you see with respect to some other agencies. It will get filled, [but] we’re a little bit behind the Dave Zatezalo timetable.

In terms of names that are out there, there really hasn’t been a lot of information. There’s no guarantee on who’s going to be there until someone gets nominated. The fact that you hear these names, the fact that they’re maybe talking to senators or talking to [the Department of] Labor, you really won’t know until something actually changes there and they announce a name.

The one thing you need to know is whoever gets that position is going to have to implement the Biden administration’s really focused, more aggressive enforcement strategy. We’ve seen that already with OSHA (the Occupational Safety & Health Administration) in the nomination of Doug Parker, someone who has always been an aggressive enforcement guy. We’re going to see the same focus when it comes to MSHA.

FUTURE OF COAL AT MSHA

P&Q: Metal/nonmetal operations continue to outnumber coal operations by, I believe, a 12-to-1 ratio. The producers here today, of course, are aggregate producers. But I wonder if coal’s influence at the agency is starting to dwindle – or if it may potentially dwindle in the coming years – if the Biden administration were to put new pressures on the coal industry. Any thoughts?

DORAN: It really should be changing, and it should have changed a while ago.

With that said, you wouldn’t know that change is happening based on the most recent administration. Obviously, we had Dave Zatezalo who was a coal CEO. We had Tim Watkins, who was the administrator. He’s a coal guy and is still there. He’s now been moved into the deputy administrator slot. Temporarily in the acting administrator’s slot, we’ve got a metal/nonmetal guy in Sam Pierce, who was the former district manager in Birmingham, [Alabama], and then the regional director for the East.

The head of the safety division at MSHA, the combined safety division, the head of the combined health division are coal guys. Coal still has a very big footprint at MSHA, and it’ll probably be that way for some time, especially when you take into consideration the ‘One MSHA’ program, which is really designed, in part, to keep the coal guys active in that agency.

Carly McFadden

About the Author:

Carly McFadden is the associate editor at Pit & Quarry. She can be reached at 216-363-7930 or cmcfadden@northcoastmedia.net.

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