What’s next with MSHA?

By |  April 25, 2018
Photo by PamElla Lee

On MSHA’s workplace exams rule, Margo Lopez says too many administrative steps are included that don’t have any measurable effect on safety. Photo by PamElla Lee

Margo Lopez, a workplace safety lawyer who is the managing shareholder of the Washington, D.C., office at Ogletree Deakins, offered Pit & Quarry Roundtable & Conference attendees a look at the ahead for their businesses with the Mine Safety & Health Administration (MSHA).

Lopez took attendees inside the selection process of the new MSHA assistant secretary. She also broke down the potential impact of the agency’s forthcoming workplace exams rule and offered insights on the potentially new nature of MSHA.

P&Q: The biggest development we’ve had related to MSHA since last year’s Roundtable was the nomination, and later confirmation, of David Zatezalo as assistant secretary of labor at the agency. What were your impressions of this pick and how the Trump administration came to Zatezalo as its nominee? Can you take us inside the selection process?

Lopez: [2017] was obviously a very exciting year for the mining industry and for us who work in mine safety. It started with election night [2016].

We were all thinking, ‘Wow, this is great, this is our opportunity. Who is going to be the new head of MSHA?’

As many of you probably know, we had a long seven or eight years with Joe Main as the head of the agency. We saw the agency, of course, become more aggressive than we have ever seen before.

As we got into the transition process, the new administration started reaching out and looking for names of potential candidates. We had clients coming to us and asking us to give them some suggestions as to who they might want to put forward through the associations. We had a few people come to us individually who we knew for years, saying they would be interested in that position. These were folks we knew through the safety process, working with them for many years with MSHA and through their positions with different associations.

We knew they had the right mindset, so we helped submit their names, as well as help them understand how the vetting process works. It is a very long process, as it should be, and we helped them get ready for their interviews.

I think ultimately, while those of us on the metal/nonmetal side were disappointed it wasn’t someone on our side of the industry chosen, we weren’t terribly surprised that it ended up being someone from the coal industry. This is really because of the history of coal mining and the impact that industry has had on safety.

While Zatezalo was somebody who really wasn’t well known beyond his own limited segment of the industry, it kind of made sense that he ended up being the candidate who came forward. If you look at his background, he is somebody who came up as a miner. He became a foreman, a mining engineer and ultimately a CEO of a coal mining company. So this is someone who has held just about every position you can hold in the coal mining industry.

He is also someone who would appeal to Trump’s constituency in both the mining side – the actual miners – as well as the industry side. He really had a kind of unique combination of experience in his background, and he was not a particularly controversial candidate.

I think the two biggest issues he had to deal with that we all saw watching the confirmation hearing was the enforcement history that his operation had. They had some pretty serious incidents occur. They’d been given a pattern of violations warning in the past, maybe twice. They’d also been accused of providing advanced notice at mine inspections.

All of those are really serious enforcement issues if you’re under MSHA, but he handled that very well when it came up in his hearing. He said that, in his opinion, MSHA did the right thing in citing his company; that management wasn’t as focused as it should be on the issues MSHA was citing them for.

Ultimately, I think he is someone we can work with, even though he is coming from the coal mining side of the industry. He gets what it’s like to be enforced by MSHA. So I think we have a good opportunity here.

Watch: Margo Lopez discusses the MSHA rules and regulations that aggregate producers should keep an eye on in 2018.

P&Q: We focus a lot on the person at the top of the agency largely because they are the face of the organization. In reality, though, there are a number of senior representatives at MSHA, as well as inspectors, who may philosophically differ from their new boss. So, as policies and strategy trickle down the chain of command, do you anticipate there being slow adoption and implementation of these on the front lines of our industry? Is there potential for clashing and slow adoption of Zatezalo’s policies?

Lopez: There definitely is [potential], and this is what we have been talking about since the election with our clients.

I always see MSHA’s enforcement as kind of a pendulum swinging back and forth. Under the Joe Main administration, we saw the most aggressive enforcement ever. That pendulum was pretty far to the side.

Under Zatezalo, we’re expecting it to swing back. It’s not going to happen quickly. We’re already more than a year into this new administration and we haven’t seen the extent, I think, of the changes we’re ultimately going to see under MSHA.

Zatezalo said recently that he’s not a hatchet man. He’s an incrementalist. I think he’s trying to send a message to ‘be patient; we’re going to get there but it’s going to take some time.’

[At] MSHA there are careerists whose ideology is very different from that of the new head of the agency – people who aren’t as willing to be practical about what needs to be done for safety, as opposed to being focused on enforcement for enforcement’s sake.

It is going to take some time. We are starting to see some changes, particularly in some things at the headquarters level and on the regulatory side. But I think what’s going to be really important to feel the full impact of this change is going to be when it starts to hit the field – the front line people out there doing the inspections, doing the day-to-day interactions with employees.

P&Q: On workplace exams, MSHA delayed the effective date of this rule in metal/nonmetal mining to June 2. What should aggregate producers know about the workplace exams rule, and what impact do you anticipate these workplace exams having on their day-to-day operations?

Photo courtesy of NIOSH

MSHA’s forthcoming workplace exams rule will affect how producers record conditions within their mine sites. Photo courtesy of NIOSH

Lopez: This rule was put out by the Obama administration in the last six months of 2016, and it’s pretty amazing how quickly that rule got through. It’s probably the fastest on record with MSHA. It’s only about a six- or seven-month rulemaking process. And it has huge changes in it for how you conduct workplace exams.

This applies to every metal/nonmetal mine. It includes a lot of things in the new rule that really exist purely to help MSHA right safety issues.

Now, workplace exams are an important safety tool to use. A lot of operations do it their own way and go above and beyond what MSHA requires, which is great because it can have a significant impact on safety. You’re finding things that need to be fixed. These are the things you want to find.

The problem with the rule is MSHA’s included so many administrative steps that need to be done; things that you need to follow up on; things that you need to record. These things really don’t have any measurable effect on safety.

The rule is so complex. There are so many things that are changing now from the way it’s been done in the past. All of our clients are getting ready for it now and have been for quite a while. That’s really what I suggest [producers] do.

You’re going to need to change your workplace exam forms. You’re going to need to train everybody on the new way of doing the examinations, including follow-up that’s required [on] recording conditions found [and] how you record the conditions that are found; how you notify people of the conditions that are found.

P&Q: What are your thoughts on MSHA as an organization that trains miners on safety and health? Do you foresee MSHA moving in the direction of becoming an organization that better educates miners about hazards and best practices that lead to safe and healthy workdays?

Photo courtesy of the Wheeling News-Register.

David Zatezalo, a former coal executive at Rhino Resources, was not a particularly controversial candidate for the MSHA assistant secretary post.
Photo courtesy of the Wheeling News-Register.

Lopez: I think that’s ultimately where we are going with this administration, and it’s largely where we were under the Bush administration.

MSHA needs to view itself as being in a partnership with the mining industry and not just out there as the enforcer. They are going to need to write citations when they find certain conditions that deserve it, but we all know right now that they’re writing a lot of citations for things that don’t really affect safety.

The resources and tax dollars we’re putting into funding this agency could really be used to impact safety in a more positive way. If they go more into this training assistance and things like the Small Mines Office that help the small operators who may not understand really what they need to be doing to protect people, that will help the industry as a whole.

As we all know, the injury and fatality statistics are good. They’re much better now than they’ve been in a long time. We’ve been seeing a consistent improvement in that. That helps everybody. So to have MSHA out there working with the small mines, helping operators and miners understand what they need to do to be safe at the end of the day will really help everybody.

If you look at the fatalities that we’ve had in the last year, a significant number of them are really, unfortunately, due to poor choices that miners made themselves – things having to do with operational equipment, not wearing your seat belt, stepping over a conveyor belt. MSHA can help us in partnership to try to prevent those types of injuries and fatalities from happening.

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