Where MSHA enforcement and leadership are headed

By |  August 1, 2022

Margo Lopez, shareholder of the Washington, D.C., office at Ogletree Deakins, is a regular contributor to Pit & Quarry whose practice is concentrated in safety and health law and litigation. Lopez offered new insights on the Mine Safety & Health Administration (MSHA) at the 2022 Pit & Quarry Roundtable & Conference, reflecting on MSHA enforcement practices, mine inspections and leadership at the agency.

Photo: PamElla Lee Photography

Margo Lopez, who offered perspective on the Mine Safety & Health Administration at this year’s Pit & Quarry Roundtable & Conference, is a monthly contributor to the magazine. Lopez co-authors the MSHA & The Law column with Bill Doran, a colleague at Ogletree Deakins. Photo: PamElla Lee Photography

MSHA enforcement

P&Q: Have you observed – or do you anticipate – any other enforcement ‘tools’ to be deployed now that we are in Year 2 of the Biden administration? Around the time of the 2020 presidential election you noted that a return of Pattern of Violations closure orders could be a possibility. You also mentioned MSHA might return to its previous practice of public shaming through the use of press releases that highlight violations. So, what more might be ahead in 2022 and beyond when it comes to MSHA enforcement practices?

Lopez: Pattern of Violations is obviously something that mining operations always need to be concerned about. This is a very particular enforcement tool MSHA has that allows them to issue a lot of closure orders to your operation, requiring you to shut down equipment, close different portions of the mine, if you have a pattern of S&S and high negligence and other types of serious violations, as well as an elevated injury rate.

For the aggregate industry, it’s probably not as likely this is going to happen. It’s more focused on larger mining operations. But if you have an underground mine, you may be one that could be a target for Pattern [of Violations] at some point.

Something else we’re really noticing a lot happens when there has been an injury, a near miss or a hazard complaint called into MSHA for whatever reason, and the agency issues citations. On the back end of that, you have to abate the violation by correcting whatever it is MSHA cited – even if you disagree that it was a violation. And what we’re seeing – I’ve got a number of cases dealing with this right now – is the inspectors are requiring you to do more for the abatement than is actually required under the standard they cited. There is pressure on the mine operator to commit in writing to take those extra measures for abatement, because MSHA can issue a 104(b) failure to abate closure order if you don’t complete those abatement actions by the deadline they’ve given you.

So we’re seeing MSHA expanding the requirements on the industry through this abatement power that they have to mandate more than what is required under MSHA’s standards. I think we can also expect penalties to go up, and there’ll be more investigations of supervisors and managers for violations where MSHA can prosecute them as individuals under Section 110(c) of the Mine Act.

All of those kinds of things are in MSHA’s toolbox, and I think we’re going to see more of these types of elevated enforcement activity.

Mine inspections

P&Q: While MSHA may have done its minimum number of inspections required by the Mine Act over the last couple of years, the pandemic arguably impeded the duration and substance of those. As you engaged with your clients over the last couple of years, how did they say the nature of the typical MSHA inspection changed? And are we getting back to more normal inspection activity now that it seems we are in a much different place with the pandemic?

Lopez: We’re definitely back on track in terms of where MSHA probably wants their inspections to be, with longer inspections, more intense inspections [and] even more than one inspector on-site at a time – depending on why they’re there.

Another thing we’re seeing quite a bit of that I think you want to keep an eye on is MSHA is hiring a lot more inspectors. They’ve lost a lot of people through retirement. Some people left for other reasons. They’re dealing with a potential manpower shortage. So the folks they’re hiring may not necessarily have the industry experience you would think they should.

MSHA believes they don’t have to hire somebody to be an inspector with so many years of prior industry experience, although I would argue the Mine Act says they do. What that means is you’re getting people inspecting mines who may not really understand what they’re looking at. They may not understand when you explain to them how you actually are in compliance with the standards. So when you see a new face, be aware this could be a situation where you’re going to be interacting with someone who feels he’s got a mandate to issue citations that you might strongly disagree with.

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