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Workplace exams, streamlining and scofflaws

By and |  December 19, 2018
MSHA Assistant Secretary David Zatezalo addressed seat belt safety earlier this year at the National Stone, Sand & Gravel Association’s Annual Convention, stating that it is very difficult to enforce. Says Zatezalo: “I would tell you from my own experience that my father would never wear a seat belt. Toward the end of his life I bought him a car and he started wearing a seat belt. He said the dings and alarms made it easier to put the seat belt on.” Photo courtesy of the NSSGA

MSHA Assistant Secretary David Zatezalo addressed seat belt safety earlier this year at the National Stone, Sand & Gravel Association’s Annual Convention, stating that it is very difficult to enforce. Says Zatezalo: “I would tell you from my own experience that my father would never wear a seat belt. Toward the end of his life I bought him a car and he started wearing a seat belt. He said the dings and alarms made it easier to put the seat belt on.” Photo courtesy of the NSSGA

Observers of the mine safety enforcement landscape will remember 2018 as the year of the workplace exam.

The modified standard finally took effect on June 2. Recognizing the learning curve for both operators and inspectors that would naturally follow this more comprehensive regulation, the Mine Safety & Health Administration (MSHA) notified the industry that inspectors would not actively enforce the standard until Oct. 1, as long as operators were deemed to be making progress toward achieving compliance.

For most operators, that provided a little leeway to fine-tune workplace exam records and orient their workforce regarding the new requirements. For a few operators, it initiated a mad dash to meet the deadline.

The deregulation agenda

While the workplace exam standard had everyone’s attention, there were a number of other developments this year that will also have an impact on enforcement and regulation in 2019.

For example, many who watched the deregulation agenda of the Trump administration advance from one agency to the next have waited to see what – if any – impact it would have at MSHA. To a certain extent, the jury is still out.

In terms of decreasing or eliminating regulations that affect the industry, there has not yet been much tangible progress. Of course, it has to be pointed out that MSHA’s political leader, Assistant Secretary David Zatezalo, was sworn in back in November 2017. He has only had 12 months on the job to learn the agency and move the process forward.

Zatezalo continues to solicit comments from the industry regarding regulatory reform ideas, and the agency began posting those comments in May. Zatezalo assured the mining industry that he has reviewed all of these comments and is looking for opportunities to address some of the issues.

Key regulatory updates

With respect to new regulations, of course, it is hard not to argue that the impact from the previous administration to the current administration has been dramatic – regardless of your perspective.

Rulemaking priorities regarding crystalline silica and underground proximity detection have shifted to no-deadline pre-rule/request-for-information formats or were eliminated from the agenda altogether. Zatezalo publicly identified proximity detection as a focus for future action and also indicated that some action may be necessary to bring the silica standard in line with the Occupational Safety & Health Administration’s lower permissible exposure limit. To the extent that these efforts are pushed forward, it is safe to say they are long-range projects.

One specific MSHA goal that does appear to be on the immediate horizon is an effort to streamline the agency to maximize manpower and budgetary resources. The “One MSHA Initiative” is focused on eliminating the stark separation between coal and metal/nonmetal within the agency and enabling the consolidation of enforcement efforts by the coal and metal/nonmetal districts.

Theoretically, this may allow the agency to reduce the number of district managers and assistant district managers and utilize its manpower based on geography rather than on the coal-metal/nonmetal distinction. Given the many significant differences between coal and metal/nonmetal operations, MSHA leadership has acknowledged that this program would certainly require a level of comprehensive training.

Initiatives to watch

MSHA headquarters also emphasized that 2019 will be a year of continued emphasis on powered haulage safety.

As of press time, the agency reported that more than 50 percent of all fatalities in 2018 involved powered haulage equipment. The agency ordered inspectors to pay particular attention to large mobile equipment operation, seat belt usage and conveyor safety (lockout/tagout and safe access during maintenance).

Somewhat related to this effort, MSHA also recently announced that it was launching a fire suppression initiative. This is focused on surface vehicles at mine sites and is designed to address an identified uptick in vehicle fires.

In some of these instances, fire suppression systems did not activate properly. MSHA’s technical personnel have developed a training presentation and inspection checklist for distribution to the industry. Inspectors will utilize the checklist during mine inspections.

MSHA also devoted a substantial amount of time and resources in 2018 to recovering delinquent civil penalties. The agency’s Scofflaw Program recovered $5.2 million from 49 mine operators. The agency utilized 104(b) abatement withdrawal order authority to pressure a number of these operators, effectively shutting operations down until payments had been made or payment plans were initiated. This get-tough effort will continue in 2019.

2019 expectations

In 2019, the mining community will watch closely to see whether any enforcement trends develop with respect to workplace exams and whether the self-imposed moratorium on new rulemaking continues. Administration priorities notwithstanding, the agency still has considerable enforcement authority under the Mine Act, and agency leadership has demonstrated that it will use it.


Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.


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