A Measured Approach

On Issues of Leadership, the Situation is Always Fluid at MSHA and OSHA.

Every time an administration changes, the new folks in charge get to appoint the new leaders of all of the government agencies. With a few exceptions, this means that the appointments reach down to the Deputy Assistant Secretary level in cabinet agencies like MSHA and OSHA.

The appointment process is not always easy. Appointments for positions at the Assistant Secretary level and above require Senate confirmation, which is not always easy to get regardless of which party holds the Senate majority.

For instance, most of you who operate on both the MSHA and OSHA side are likely aware that the administration’s choice for Assistant Secretary for Occupational Safety and Health, Scott Mugno, was not confirmed by the end of the previous Senate session and, although re-approved by the Senate HELP Committee, is still awaiting confirmation by the full Senate.

What is almost universally true about this ritual is that, while the folks that are confirmed for the positions may know a good deal about the subject matter of the agency they are to direct, they also generally know very little about how agencies operate and how to navigate the politics of the bureaucracy.

The result of this situation almost always is that the senior career folks at the agency end up effectively running the agency for the first year or so until the new political appointees get their sea legs. The other thing that is almost universally true is that all agencies (including the relatively small ones like MSHA) are similar to big ships in two ways; they are hard to stop and hard to turn.

So what does this all mean to us? First, it means that we probably shouldn’t have been surprised at how the workplace examination rule has turned out. While the litigation against it has not been formally ended, it appears that there will not be any further action taken against it.

Attempts to find resolution of a number of continuing questions have been largely brushed aside and, although we have been repeatedly assured that questions and concerns would be addressed in pre-enforcement guidance and that inconsistent enforcement issues would be resolved before October; that has largely not occurred. In other words, it looks like the remaining issues will have to be addressed through litigation, potentially causing a spike in citation contests.

Good news for lawyers. Bad news for everyone else.

On the other hand, there are a number of signs that the new leadership is bringing some new, more collaborative, result-oriented approaches to the agency. The upper echelons of MSHA management have spent more time in the field than have any group in recent memory.

For the most part, they have been extremely responsive and sensitive to concerns that have been brought to them from operators signaling that they are committed to safety, and that their approach is not necessarily going to focus on increased enforcement.

MSHA’s recently announced regulatory agenda and spate of “Requests for Information” (RFIs) also presents an interesting mix. Assistant Secretary Zatezalo has made no secret of his concern about the continuing occurrence of mobile equipment accidents, including the role that seat belt use plays in the severity of those accidents.

And rightly so. These accidents continue to make up a significant percentage of fatalities and present a heightened risk of catastrophic results. As a consequence, one of the first actions taken by the new leadership was an RFI seeking information on ways to prevent those types of accidents.

While we await the responses to that request, it’s worth noting that it concentrates on seeking engineering solutions to those accidents, such as proximity detection and safety interlocks. While these approaches might indeed reduce accidents, the focus is once again on specifically tailored engineering controls rather than human factors such as fatigue and distraction, which have far wider implications.

Of course, we haven’t seen what, if any, rulemaking might come from this. But while the Act certainly places all responsibility on operators, that doesn’t mean that MSHA is prohibited from looking at a broader array of human factors in the quest to improve safety and health at our nation’s mines.

Other than its website solicitation for input as to any regulations that should be updated or eliminated, we have not seen any formal action toward the implementation of President Trump’s much touted initiative towards reducing or eliminating regulation.

On an encouraging note, however, another recently issued RFI asks for alternatives to strict regulatory compliance that have been subject to Petitions for Modification that have been historically granted. Once again, we are very early in the process on that RFI, but the possible outcomes all point to a significant lifting of regulatory burdens and operator expense in dealing with outdated or unduly restrictive regulatory requirements.

Last, but certainly not least, Assistant Secretary Zatezalo has announced that he intends to “blur the lines” between coal and metal/nonmetal enforcement. He has said that he will create an administrator for “enforcement” with an assistant for coal and another for metal/nonmetal.

He has suggested that he will combine the coal and metal/nonmetal districts into “enforcement districts.” He has made it clear that this will allow coal and metal/nonmetal inspectors to be interchangeable where it makes sense from a geographic standpoint.

For instance, there is a metal/nonmetal field office in Anchorage and one coal mine in Alaska. Currently, MSHA sends coal inspectors from Wyoming to inspect that mine. Presumably, under the new system, the metal/nonmetal inspectors from Anchorage will conduct those inspections, saving MSHA significant expense. This makes sense from an MSHA administrative standpoint, but it remains to be seen how adaptable one set of inspectors will be to mines they are not used to inspecting and regulations with which they are unfamiliar.

There are a couple of other signs of change in the agency that should give us all cause for optimism.

  • First, highly placed MSHA officials have announced in several public meetings that they will not support citations issued because an operator tried innovative or new technology, which ultimately did not work out.
  • Second, those same officials have suggested that operators contact headquarters when they are unable to address a sudden change in regulatory interpretations through the field office or the district.

It’s impossible to predict exactly what will happen with the RFIs, but what appears clear at this point is that it’s time for us to re-engage with the agency. Each of us should take advantage of every opportunity to engage with the agency through every possible avenue.

We should respond to the RFIs with the types of responses we hope to see from MSHA. We should take MSHA up on its renewed commitment to engage on arbitrary enforcement and we should not be afraid to try innovative approaches to safety for fear we will be penalized for our efforts.

We also need to be courteous – but objective and vocal – about any issues that arise from the blurring of the distinction between coal and metal/nonmetal. This all will be especially important in determining the ultimate course of the agency.

We have an agency that appears to be more responsive to the concerns of the regulated community than it was in the past. We owe it to ourselves to make sure they are informed of our views both positive and negative, in order to help the boat turn in the direction that we would like it to go.

Mark Savit is senior counsel at Husch Blackwell. As a member of its Energy & Natural Resources group, Savit counsels clients in government investigations and regulatory matters, and litigates improper enforcement actions and whistleblower cases. He can be reached at [email protected].

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