What to expect from MSHA policy, leadership changes

By and |  November 3, 2017

With the 2016 election of a president who made deregulation and smaller government a hallmark of his campaign, there has been a great deal of interest in the mining community about how that governing philosophy will impact mine safety enforcement.

While the first seven months of the new administration have been anything but boring across the entire spectrum of the federal government, there is still a lot to find out about the course the Mine Safety & Health Administration (MSHA) will take moving forward. With that said, there have been some early signals of change.

The most obvious signals relate to MSHA’s projected rulemaking goals for 2017. According to the regulatory agenda published in July 2017, MSHA has removed all deadlines from its crystalline silica and underground proximity detection rulemaking efforts.

Prior to the election, those rulemaking efforts were at the top of the agency’s agenda. In fact, the previous administration had targeted April 2017 for release of its proposed rule for crystalline silica. This rulemaking process was expected to consume substantial agency and industry resources. The fact that the battle has been avoided, at least temporarily, has set a different tone for 2017.

This different tone is also reflected in the agency’s decision to delay the extension of the working place examination regulation. While this decision can certainly be credited in significant part to intensive industry efforts to alter or stop the impact of this new regulation, the fact remains that the agency has publicly acknowledged the need to give operators time to implement the more extensive recordkeeping and logistical requirements of the new standard.

Consider, too, the public statements of a number of MSHA district managers who have pledged there will be a cooperative “go-slow” approach to enforcement once the regulation finally takes effect.

Agency leadership

Of course, the real indicator of change will be the course that is charted by the new assistant secretary of labor for MSHA. As of this writing, the nominee for that position has still not been officially named. While it is anticipated that the new assistant secretary will come from the mining industry – and will have a strong understanding of the compliance challenges facing operators – until that person is in place and making decisions, there will probably not be any dramatic adjustments.

That assistant secretary will assume control of an agency that is seeing a substantial transition in its inspector ranks, due to a considerable number of retirements of senior inspectors over the past few years. There will also be a number of slots to fill in agency headquarters leadership positions.

While former Rhino Resources executive David Zatezalo is the nominee for assistant secretary of labor at MSHA, Wayne Palmer, formerly chief of staff to Labor Secretary Alexander Acosta, is serving as acting assistant secretary of labor and running the agency. Palmer will become deputy assistant secretary for policy once a permanent assistant secretary takes the helm.

When the new assistant secretary does finally step in to the job, there will be significant encouragement from the mining industry that a number of key issues be promptly considered. Some of the most compelling of these issues will be:
◾ Whether to maintain or withdraw the agency’s current pattern of violations rule
◾ Whether and when to restart the crystalline silica rulemaking process
◾ To address industry concerns regarding inspection and inspector consistency
◾ To address conflicts between headquarters and the district regarding area guarding
◾ Whether to re-formulate and re-purpose the Small Mines Office
◾ To review and revise the application of old regulations in light of new technology
◾ To make a final decision regarding the status of the pending workplace exam rule

In the meantime, the daily nuts-and-bolts operation of the agency will continue to be directed by the district managers. In that regard, it is likely the agency’s enforcement focus will continue to be its primary priority, so it will be business as usual.

For instance, a general review of MSHA statistics during the first five months of the new administration indicates that the agency issued 84 “high dollar” citations and orders (producing civil penalties over $10,000) to metal and nonmetal mines. Only 60 such citations and orders were issued for the same period in 2016. The enforcement train is continuing to move down the tracks.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.

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About the Author:

Allison Kral is the former senior digital media manager for North Coast Media (NCM). She completed her undergraduate degree at Ohio University where she received a Bachelor of Science in magazine journalism from the E.W. Scripps School of Journalism. She works across a number of digital platforms, which include creating e-newsletters, writing articles and posting across social media sites. She also creates content for NCM's Portable Plants magazine, GPS World magazine and Geospatial Solutions. Her understanding of the ever-changing digital media world allows her to quickly grasp what a target audience desires and create content that is appealing and relevant for any client across any platform.

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