These Differences Really Matter When It Comes to MSHA Enforcement.

By Brian Hendrix

When a Mine Safety and Health Administration (MSHA) inspector arrives at your mine for an inspection, you just hope that the inspector is experienced (and, ideally, not accompanied by any trainees). You also hope that the inspector’s experience isn’t limited to coal. Trainees and coal inspectors assigned to inspect metal/nonmetal mines can create all sorts of enforcement issues. That’s not always the case, but it happens often enough to produce work for attorneys like me. This isn’t a new problem by any stretch, though we have seen more examples of it over the last several years.

There are a lot of reasons for this, some of which are systemic or historic. The most obvious reason is that with fewer coal mines to inspect, MSHA’s coal inspectors have fewer inspections so MSHA has been assigning them to inspect metal/nonmetal mines. This is a trend that’s likely to continue.

David G. Zatezalo

The current head of MSHA, David G. Zatezalo, has indicated that the inspectors located closest to a mine should be inspecting that mine. If a coal inspector is closer to a particular metal/nonmetal mine than a metal/nonmetal inspector, the coal inspector should be assigned to inspect the mine. Basically, he’s asking: Why should a metal/nonmetal inspector drive three or four hours to inspect a mine when a coal inspector is just 30 minutes away?

That’s a fair question. One of Zatezalo’s goals is to make the agency more effective and efficient, and I’m sure he’s evaluating this as one way to accomplish that goal. To be sure, it wouldn’t really create any problems for coal. However, I am certain that, without an extensive and focused training program and close supervision, it would create more problems for metal/nonmetal operators and result in a less effective, less efficient use of the agency’s resources.

Why? First and foremost, the coal world is very different from the metal/nonmetal world. To some of us, that’s obvious. Comparing an underground coal mine to a surface stone quarry, an aggregates operation, etc. is comparing apples to oranges. Dogs to Cats. Football to baseball. Take your pick.

The hazards, history, mining methods and equipment in coal are largely specific to coal. Sure, there are similarities between coal and other mines, particularly between a coal mine and certain types of nonmetal mines. However, an open pit copper mine in Arizona has very little in common with an underground coal mine in West Virginia. Oranges and apples are both fruits, but only one of them is good for cider.

In underground coal, you don’t work beyond the last row of bolts or artificial support. The roof is often close at hand. You’re usually mining with machines, not explosives. Coal miners are certified by the state only after they’re trained, tested and have worked in coal for a certain period of time. Examiners – fire-bosses – must be certified by the state.

Equipment

Most of the equipment is permissible, minimizing potential ignition sources. All work areas must be examined or fire-bossed before work begins in the mine by a certified examiner. Why? An ignition of methane and/or coal dust in one area of the mine may travel to other areas of the mine. A hazard in one area can endanger miners throughout the mine.

Of course, MSHA’s coal standards and regulations differ from those that apply to metal/nonmetal mines. That is, however, the least of the differences at MSHA between coal and metal/nonmetal. In coal, inspectors enforce MSHA’s regulations and hold operators to MSHA-approved plans. You need a plan for much of what you do in coal, and you need MSHA to approve it.

If the district manager doesn’t approve your roof control and ventilation plans, you won’t be mining. Coal operators must convince MSHA to approve their decisions about roof support, about mining methods, about ventilation, etc. It is hard to understate the impact this has on the mindset of MSHA personnel in coal and on the operators.

Coal inspectors inspect surface and underground coal mines and prep plants. By and large, that’s it. Metal/nonmetal inspectors inspect all of the “other mines,” including cement and lime plants, alumina refineries, open pit copper and gold mines, underground narrow-vein gold mines, oil mines, underground salt and trona mines, and underground zinc mines.

The differences between these “mines” and a coal mine are legion. A cement plant doesn’t look anything like a coal mine. An alumina refinery looks more like a chemistry set than a coal mine. An underground zinc mine doesn’t have much in common with a coal mine.

Methane isn’t a concern in most metal/nonmetal mines. To be sure, there are gassy nonmetal mines, but those mines (e.g. salt) aren’t extracting combustible material and don’t usually liberate nearly as much methane as a coal mine. The dust in metal/nonmetal mines isn’t combustible.

The operators of these mines don’t need MSHA’s approval for much of anything that they do. Ground control and ventilation decisions are made by the operators. MSHA enforces the Act and its metal/nonmetal regulations at these mines, but it doesn’t have anything like the plan approval authority that it has in coal. I’ve just scratched the surface here in describing how metal/nonmetal differs from coal.

Differences

These differences really matter when it comes to MSHA enforcement. Now, I am not saying that an MSHA inspector with coal mining experience can’t inspect a metal/nonmetal mine. And, I’m certainly not saying that coal mining experience isn’t valuable. No doubt, a good inspector who has a lot of coal experience but no real experience working in or inspecting a metal/nonmetal mine may be capable of performing an effective inspection with time, training and supervision. And, there are a lot of good inspectors out there.

What I am saying is that it takes a lot of effort to convert a coal inspectors to inspect metal/nonmetal mines. If MSHA wants a coal inspector to effectively and efficiently inspect a metal/nonmetal mine, the inspector will need time, training and supervision. I don’t think that the training MSHA has provided to the coal inspectors that have converted to metal/nonmetal has been effective. A two-week crash course at the Mine Academy isn’t going to cut it.

I don’t know how the leadership at MSHA sees this. MSHA’s leadership is heavy on coal experience and light on metal/nonmetal. That’s not unusual. The current head of MSHA might be the most experienced person to serve as assistant secretary; he has more than four decades of mining experience, almost all of it in coal. By my count, Zatezalo is the 10th person to hold the position since it was created in 1978. I think all 10 had experience in coal, in government service or had previously worked for the United Mine Workers.

What I do know is that Zatezalo and others in Arlington have demonstrated that they are willing to actually listen to stakeholders. They want to hear from stakeholders and make smart, well-informed decisions. If MSHA plans to use more coal inspectors to inspect metal/nonmetal mines or otherwise blur the lines between coal and metal/nonmetal, the leadership in Arlington needs to hear from operators who have dealt with the problems created by coal inspectors who weren’t properly trained to inspect a metal/nonmetal mine.

Brian Hendrix, a member of Husch Blackwell’s Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. [email protected], 202-378-2417.