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The latest on MSHA’s agenda

By |  April 20, 2020

Margo Lopez, a workplace safety lawyer at Ogletree Deakins in Washington, D.C., discussed the current dynamic between the Mine Safety & Health Administration (MSHA) and the mining industry at the 2020 Pit & Quarry Roundtable & Conference. 

Lopez, whose practice is concentrated in safety and health law and litigation, touched on the agency’s priorities under Assistant Secretary David Zatezalo. Lopez also discussed the workplace exams rule, the “One MSHA” initiative and other developments to expect from MSHA in 2020. The conversation presented here took place Jan. 15, and it was edited for brevity and clarity.

You wrote at the end of last year that 2019 had ‘surprisingly more rulemaking and enforcement policymaking activity than one might expect under the current administration.’ With David Zatezalo at the head of the agency for two-plus years now, what degree of rulemaking did you anticipate to take place in 2019, and what actions can you point to of the agency doing more than you would expect?

Margo Lopez PQRT 2020

Says Ogletree Deakins’ Margo Lopez on the “One MSHA” initiative: “If you’re an operation that is seeing a coal inspector who knows nothing about metal/nonmetal … you could have a really difficult inspection on your hands.” Photo: PamElla Lee Photography

LOPEZ: I’ve seen MSHA under every administration since [President George H.W.] Bush. You can really think about the political influence on the agency as a pendulum. At this point, we’re two years in under Trump’s appointee, David Zatezalo, and we really have not seen that pendulum move even as far as I thought it would have at this point in time. 

MSHA has been dealing with a very surprising battle about workplace exams. The other thing that’s been going on there that’s very significant is powered haulage. MSHA put out a request for information (RFI) in 2019 looking to put in place new regulations potentially down the road. They’re also looking at technology being used to enforce the driver wearing a seat belt in the truck.

These are things that none of us had on our radar when the Trump administration came into place. We did not expect there to be any new enforcement regulations coming out of the agency, but David Zatezalo has signaled very strongly that they’re going to march forward and they are going to put this regulation out. I think with the election coming up, they’re on a quick path to get it done in case things go the opposite way for the administration.

The workplace exams rule was the one that made the most headlines in 2019. Now, the rule is back to the 2017 form of the rule. What does this ultimately mean for aggregate producers? And what is your expectation going forward in terms of enforcing the rule?

LOPEZ: The thing I’ve been most concerned about with that rule is how vague a lot of the language is. It leaves within the discretion of the inspector and the local enforcement supervisors a lot of room to determine whether they feel that we complied with some of the notification requirements and the timing requirements.

The Trump administration changed the workplace exam rule in two ways that were helpful to industry. But the union sued and won, and that forced MSHA to have to put back in place the Obama rule in its entirety. That just became enforceable under MSHA’s policy on Jan. 1 of this year, so we’re just starting to get some information from clients about how that’s going.  

But there is yet another court decision out there that was filed by the industry challenging the original Obama rule that’s going to have its oral argument in March. What’s at issue there is whether the whole rule is going to get wiped off the books and [if] we’ll go back to the original, longstanding workplace exam rule that was working well for industry for many years. My prediction is: I don’t think we’re going to win that one, but I’d love it if we did. I think we’re making great arguments in that case.

Another critical 2019 rulemaking development was MSHA’s first major activity in reviewing possible options for revising its silica exposure standards. In August, the agency issued an RFI, which may signal a possible interest in relying on respiratory protection. Any idea what sort of respiratory protection this might mean for those working at a crushed stone or sand and gravel operation?

LOPEZ: I’m not entirely convinced MSHA is going to do a silica rule under this administration. I think the RFI was their attempt to show Congress that the agency is focused on this, but I don’t think that the current administration is ready to put out a rule on it. I think one of the things they’re looking to do, though, is to encourage the industry to come up with a real-time monitoring device – like we have in the coal industry. But that technology doesn’t exist right now.

Right now, MSHA doesn’t give you credit for having your people in respirators. I think MSHA recognizes that if they’re going to go with [a] lower standard, they have to give you credit for having your people in respirators because it’s probably the best way for you to be in compliance.

At least a year ago, Zatezalo seemed to express an interest in pursuing initiatives that are more in line with the concept of ‘health.’ Silica, obviously, would fall into the health category. Are there other health areas the agency might pursue rulemaking on at this stage – areas aggregate producers should be aware of or concerned about?

LOPEZ: I’ve got on my desk right now several cases involving health sampling, and MSHA’s out there right now doing increased health sampling in the metal/nonmetal field. Zatezalo has signaled very, very strongly that MSHA is looking for health enforcement in an increased manner, and they are doing it and issuing citations. 

We’ve also seen where you’ve got coal inspectors doing the health sampling and they are botching it because they don’t understand how to sample and how to test in the metal/nonmetal arena, so that’s kind of their real concern. 

Photo: isabela66/iStock / Getty Images Plus/Getty Images

According to Ogletree Deakins’ Margo Lopez, MSHA Assistant Secretary David Zatezalo has signaled that the agency wants to enforce ‘health’ at a higher rate. The agency is already issuing citations for ‘health’-related issues, Lopez adds. Photo: isabela66/iStock / Getty Images Plus/Getty Images

Regarding the ‘One MSHA’ initiative, this is well underway at this point, with the agency undergoing a significant reorganization on its front lines. The lines are much more blurred between coal and metal/nonmetal as a result. What’s your feeling on how these changes are going and being received at this point in time?

LOPEZ: While MSHA under the current administration hasn’t done a whole lot of rollback on regulations, one of the things they have been doing to try to show that they’re aligned with the Trump agenda is reorganize the agency. 

This is driven by the fact that coal mines are going out of business, and with the reduction in coal mining, [MSHA’s] coal side doesn’t have enough to do. So to save the jobs on the coal side within MSHA, the agency’s been working on what they call ‘blurring,’ which is really kind of melding the two halves of the agency into one. 

They haven’t been successful in doing that entirely. It’s created a lot of problems for metal/nonmetal operators who are subject to this ‘One MSHA’ blurring. Having a coal inspector come to your operation, if you don’t typically have a lot of issues with MSHA, may not be too much of a change for you. But if you’re an operation that is seeing a coal inspector who knows nothing about metal/nonmetal – or if you have some unusual or unique types of operations – you could have a really difficult inspection on your hands.

What we’ve been advising our clients on this is if you find that you are under a coal district, take that as an opportunity to go in and meet with them. Then, when the time does come for inspections, hopefully they’ll be a little more understanding.

When the reorganization is ultimately said and done, do you think the aggregate industry will be better or worse off for this?

LOPEZ: It’s really hard to say whether it’s going to be better or not. MSHA is going to be eliminating some of its district offices. They are going to be compressing the footprint of the agency, and some district offices are going to be geographically moving to another location. They’ve had a tremendous turnover in personnel on the management side of MSHA, which is incredibly impactful for the people in those districts. Ultimately, I don’t see it being a big improvement.

The outcome of the presidential election will have major consequences on leadership at MSHA. If President Trump is reelected, the expectation is for business to continue as usual at the agency. But should the president not be reelected, are you starting to think about the possibility of a next regime at MSHA and what a Democratic victory in November might mean for MSHA going forward?

LOPEZ: I think that pendulum’s going to swing very quickly back. MSHA is a very heavily data-driven organization, and we’ve seen that in a very pronounced way under this administration. When this head of MSHA looks at the injury and accident data and sees that X is leading to most injuries and accidents, he puts in place an initiative to focus on that. We’ve seen the fire suppression initiative, we’ve seen the powered haulage initiative come out of that, and right now they’re focusing on contractors. I think we’ll just see that ramped up even more under a Democratic administration. 

Anything else you’d like to add? Something you’ll be paying close attention to as 2020 unfolds?

LOPEZ: One thing I’ve found very interesting is the Federal Mine Safety & Health Review Commission has changed its composition in a positive way for us because of the Trump administration. It’s the court that reviews your citations. 

This is a five-body set of commissioners that are appointed for six years by the president and confirmed by the Senate. As of last August, we’ve started our first full cycle of a majority of Republican appointees on the commission. We have a tremendous opportunity to put in place case law that will long outlast whatever happens in the next presidential election.


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