Where the industry stands with MHSA – and what’s ahead

It has been more than five months since the Biden administration took office, and while there is still a lot to learn about the prospective enforcement focus of the Mine Safety & Health Administration (MSHA), much has become clearer.

Many mine operators are waiting to see if the enforcement and rulemaking pendulum that swung so widely between the Obama and Trump administrations is ready to swing back again. All of the indications to date are that it will.

So, what do we know to this point? We know the process of selecting a new assistant secretary of labor for MSHA is moving at about the same slow pace that produced the nomination and confirmation of the last assistant secretary. Unlike the Occupational Safety & Health Administration (OSHA), where – as of this writing – a nominee for assistant secretary was already announced, a Senate hearing was held and a vote was expected soon, there seems to be little urgency to fill the MSHA slot.

With that said, the nomination of Doug Parker, the head of Cal-OSHA, portends a Biden administration preference for more activist leaders at the helm of its safety agencies. The MSHA nominee will likely arrive with similar marching orders.

What we know

A more aggressive MSHA is not just guesswork at this point.

We know from acting assistant secretary Jeannette Galanis’ first public statements that a substantial portion of the money the agency received from the American Rescue Plan Act will be directed toward the hiring of more enforcement personnel. We also know the Biden administration’s budget proposal anticipates more enforcement personnel for the agency.

All of this is consistent with an enforcement trajectory that is designed to overturn what critics saw as a dramatic drop in MSHA enforcement activity over the last few years. It is anticipated that, as part of this process, the agency will bolster its district special investigation teams. Some districts were down to one full-time investigator at the end of 2020.

We also know from Galanis that the “One MSHA” initiative is alive and well. She indicated that it was too soon to change the program without more time to let it succeed. She also defended the program from allegations of inconsistent enforcement, with a commitment to continue to provide training to coal inspectors for metal/nonmetal inspections and noting that surface coal safety issues were not that different from surface metal/nonmetal issues. As a former chief of staff for former MSHA assistant secretary Joe Main, she is, of course, fully aware that coal and metal/nonmetal have different regulations.

Rulemaking

On the rulemaking front, the regulatory moratorium that the previous administration championed has been completely jettisoned. The agency completed a proposed powered haulage rule that is being reviewed by the Office of Management & Budget. It is expected to be published in the Federal Register in July or August. MSHA has been quiet on what is in it, but it is anticipated that, at a minimum, the rule will contain a requirement for mine operators to have a written powered haulage plan.

The agency also made it clear that it is working feverishly on a proposed crystalline silica rule – a regulation the Trump administration fended off for four years. No details on the rule have been released, but it is expected that the rule will closely mirror OSHA’s revised rule that would cut the current permissible exposure limit in half. The best guess for the release of this proposed rule is late fall.

Mine operators always tell us their compliance efforts are not dictated by the back and forth of changing MSHA enforcement priorities. Still, operators should make sure supervisors and managers are ready for the heightened level of enforcement activity that is expected. They should focus on operation violation history and repeat history – the types of things that inspectors study before arriving on mine property – in order to anticipate possible problems.

Commitment and attention to detail will usually produce strong safety performance. Those attributes will be important in the coming months and years.

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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Featured photo: P&Q Staff