Takeaways from Zatezalo’s speaking tour

By and |  May 22, 2018

Zatezalo. Photo courtesy of the Wheeling News-Register.

Several months into his tenure as assistant secretary of labor for the Mine Safety & Health Administration (MSHA), David Zatezalo is beginning to publicly outline his vision for MSHA.

As he nears completion of a whistle-stop tour of key MSHA offices, Zatezalo spoke at a number of industry meetings, announcing that the agency will be focusing on what he refers to as the “three E’s”– fair and consistent enforcement, education and training, and technical assistance in improving safety and health through engineering.

Most of Zatezalo’s remarks, however, concentrated on the enforcement and engineering components.

It is clear from Zatezalo’s remarks that MSHA will continue to put a strong emphasis on enforcement. Zatezalo frequently refers to the Mine Act’s requirement that every mine be inspected a minimum number of times per year. He states that MSHA will continue to expend the necessary resources for that mandate to be met.

While MSHA continues its current enforcement activities, the industry continues to look for signs that the agency will begin to put more resources into compliance assistance, including for small mines. Zatezalo has not said much about that in his most recent appearances, other than that more announcements will be forthcoming.

Especially surprising in Zatezalo’s recent presentations are his comments that MSHA will continue its current rulemaking on workplace examinations and could add silica and other items to its rulemaking activities. MSHA announced the workplace examination rule is on track to become effective June 23. Zatezalo stated MSHA will be reviewing the Occupational Safety & Health Administration’s (OSHA) silica standard and is considering moving forward with an analogous rule for mining.

Powered haulage safety has been a key point in Zatezalo’s industry presentations. He points to the number of fatalities in recent years related to the operation of heavy mobile equipment and seat belt use. He is urging the industry to deploy technological innovations to improve mobile equipment safety.

In particular, Zatezalo points to proximity detection technologies, such as those currently used on many passenger vehicles, and other technologies used on continuous miner machines in underground coal mines.

Zatezalo also describes seat belt interlock devices as an engineering solution to miners not wearing available seat belts. Although they are not required by safety regulations, Zatezalo says the industry should adapt and deploy such engineering modifications to surface mobile equipment. At the same time, he states that MSHA would consider rulemaking to mandate use of similar technologies.

Zatezalo also signaled his intention to use a “more aggressive posture” on unpaid civil penalty fines. He reminds operators that it is a violation of the Mine Act to fail to pay fines, and delinquent payments could lead to the issuance of additional citations and 104(b) failure-to-abate orders. In the case of mine operators experiencing cash flow concerns, he recommends communication with the agency on the use of payment plans.

In at least one of his speeches, Zatezalo offered the possibility of rethinking the division of MSHA into coal and metal/nonmetal program areas. For the sake of efficiency, he says it does not make sense for inspectors to be dedicated to one industry or the other. Whatever field office is closest to the mine should be the one to inspect that mine, he says.

Zatezalo implies he does not see a reason to divide the district offices into just coal or just metal/nonmetal.

Certainly, we are just at the beginning of seeing where things may be headed with MSHA under the current administration. It is apparent, though, Zatezalo is intent on utilizing the various enforcement tools available to MSHA – the enforcement and engineering components of the “three E’s”.

With regard to the education and training component, we will have to stay tuned to see what comes.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

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