Ogletree Deakins’ Doran discusses a new era for MSHA

By |  August 13, 2021

MSHA ON COVID

P&Q: The story of 2020 was obviously COVID, and that’s no different in terms of the agency. MSHA was rather slow to respond to COVID, and it finally posted COVID best practices on its website. Those non-mandatory best practices were updated recently. Most mining operations probably had their own health and safety standards in place long before this temporary measure. At this point, Bill, is there any chance MSHA will convert those best practices into an emergency temporary standard? And what is MSHA essentially asking of operators?

Headshot: Bill Doran, Ogletree Deakins

Doran

DORAN: If you’d asked me this three weeks ago, I would have told you there’s no chance they are going to issue an emergency temporary standard, and I think that’s still the case.

Jeannette Galanis reopened the door a little bit in some recent public comments where she said that the pressure might become a little bit too much from the administration to actually put something out since OSHA will be putting out an ETS (emergency temporary standard). So, she reopened the door and said there’s still a possibility of that. But she qualified that with the idea that it would resemble almost completely the best practices that they have on their website, which really would encompass the types of things all of you are doing out there anyway: the screening, the social distancing.

There could potentially going to be something related to auditing some of your specific jobs and determining what might present more of a problem for COVID. But, I still believe there probably will not be one.

P&Q: What kind of enforcement have you seen from the agency on COVID? Anything dramatic?

DORAN: Early on in the pandemic, we received a lot of comments from some of our clients indicating that inspectors were showing up at their operation, asking about whether or not there have been positive COVID results. In some cases where there had been, basically, the inspection team was saying: ‘Well, we’ll see you later. We’ll be back later on in the year.’ And, in some cases, they didn’t come back.

Some operations did not get their two inspections – that’s surface operations – and four inspections – that’s underground operations, which is required by the Mine Act. With that said, my impression from the statistics is that’s a limited case for the most part.

Also, they continued on with their inspection process. And I can tell you, just from our perspective with our clients, that we were seeing most of them having their normal inspections. They were receiving citations. We were certainly engaged in the normal process of contest and everything else. So, I don’t know that it pushed them back too far.

RULEMAKING

P&Q: Rulemaking slowed at MSHA under Zatezalo, but it’s likely rules that were underway during the Obama years will pick up under Biden. What do you think priority No. 1 is for MSHA in terms of rulemaking over the next four years? Is it silica?

DORAN: There’s a difference between what’s coming out first and what their big priority is. Their big priority clearly is crystalline silica. But first in the pipeline is going to be the powered haulage regulation.

Now, we haven’t seen it yet, so we don’t know exactly what’s in it. But if you read between the lines and off-the-record comments from MSHA, the impression is that it’s going to be somewhat of a benign regulation that is going to require companies to put together a powered haulage plan that will establish a variety of different requirements. But it won’t necessarily dictate how you meet those requirements.

Again, how much detail it’ll get into is still not clear until we see what’s in the Federal Register. But everyone keeps telling us: ‘Don’t worry about it. It’s not going to be that disruptive.’ We’ll wait and see exactly what’s in there, because people have said that to us before.

P&Q: There’s an OSHA permissible exposure limit in place for silica, and it’s 50 micrograms per cubic meter with an action level of 25 micrograms per cubic meter. Can operators expect MSHA to replicate the OSHA rule? Might MSHA want to be more extreme? And for operators, what might this mean in terms of investments in technology or equipment to monitor and mitigate?

DORAN: Everything is in the drafting process right now. They’re definitely working on it.

Pat Silvey, who is their deputy assistant secretary for operations, has said that they are working on the crystalline silica rule. I think the earliest we will see something is early fall, if that, because rulemaking always takes a little bit of time, and it’s always tough when you don’t have a permanent person running the agency to set the tone.

No one’s indicated that they’re trying to do anything different than what OSHA did. Obviously, OSHA’s permissible exposure limit is half of what MSHA’s standard is. The expectation is that they’ll try to harmonize those two standards. But until we see what they’ve done and what they’re doing, we will not have a lot of detail.

Carly Bemer

About the Author:

Carly Bemer (McFadden) is a former Associate Editor for Pit & Quarry.

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