The aggregate industry braces for regulatory change (Part 1)

The following transcript was edited from one of two concurrent discussions that took place June 3 at the 2021 Pit & Quarry Roundtable & Conference. 

P&Q: Are you experiencing any change in approach by the Mine Safety & Health Administration (MSHA) since the Biden administration took office, or do you expect any change to come soon? Do you have any expectations on new MSHA rules, including respirable crystalline silica? What has your experience with MSHA been like regarding COVID-19?

JONATHAN HART (WASHINGTON ROCK QUARRIES): I don’t think this is a political statement, but the problem is that there is a change in approach – whether or not it’s good or bad.

The problem is the fact that, once again, [there’s] a new administration and MSHA has changed again. There’s a constant back and forth in how MSHA operates depending on who’s in control of the upper echelons of the administration. The constant change makes it a lot harder to keep up with all of the changes that come through.

I think we can all generally agree with whatever rules MSHA comes up with, and we can support them. It’s just that one day it’s one way, and the next day it’s different. That’s where the issues come up.

There’s a constant training and retraining and adjusting your operations to adhere to a new standard, but, then, tomorrow it doesn’t matter anymore. It would be a lot better for the industry as a whole if there’s just a consistent direction. You can see the benefit of going in a single direction with a single vision versus constant change based on whoever’s in charge and the ideas they want to focus on.

We all want to be safe and keep our employees safe. But give us a chance to keep up with what you’re doing, and give us a chance to change our operation structure so we can adhere to the new standards – whatever they may be.

BILL DORAN (OGLETREE DEAKINS): There was a development sort of during the Trump administration, and it’s now carrying over to the new administration. That was an audit by the Department of Labor’s Office of Inspector General (OIG). Basically, they looked at 700,000 citations that were issued between 2013 and 2019. Of those 700,000 citations, they found a little more than 200,000 had not been terminated in a timely fashion.

What that means: Basically, when a citation is issued, the inspector marks down a date that the condition has to be corrected. But [OIG] found that more than 200,000 of those had not been terminated by the deadline.

Now, when you really read the fine print of that report, you find out that really wasn’t an operational issue. It was really MSHA not getting back in time – before the deadline – to actually look and see if it had been terminated in time.

In looking at this issue, the Inspector General came up with this idea that MSHA wasn’t doing a tough enough job on their abatement oversight. The Inspector General also came to the conclusion that MSHA was allowing companies too much time to abate their violations – and, in some cases, giving extensions; or, in many cases, giving extensions to the abatement time when OIG thought it wasn’t necessary.

The result of that is sort of a solution to what probably wasn’t a problem in the first place. A lot of pressure is now on MSHA to be tougher with the operators. What you’re going to find now is inspectors putting short times for abatement on citations. In some cases, rather than just allowing extensions – which has been a practice for years – they’re going to be less flexible in providing those extensions. This is going to have a real impact on operations moving forward.

In terms of consistency, we absolutely go back and forth from one administration to the next. But when you go from having a former safety director of the United Mine Workers run the agency and then you shift to a coal CEO, you’re never going to have consistency. It’s always going to fluctuate like that.

I wish I could say there’s going to be some consistent enforcement, but I’ve been doing this for 30 years and it’s always been this up and down every time there’s a new administration. You absolutely can expect there’s going to be a complete turnaround from what we’ve been experiencing over the last two years.

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