We Are Getting A Clearer Picture Of How It Really Looks And, More Importantly, How It Will Work And Act.
By Brian Hendrix
COVID-19 has not derailed the “One MSHA Initiative,” MSHA’s effort to blur the “distinction between coal and metal/non-metal enforcement for more efficient use of resources.” That’s not a surprise, given the commitment of MSHA’s leadership to the Initiative and the fact that it started back in 2018.
Much of the “blurring” has occurred. Now, as “One MSHA” comes into focus, we are getting a clearer picture of how it really looks and, more importantly, how it will work and act. We are also starting to see the influence of coal inspectors and supervisors on metal/non-metal inspectors and supervisors and vice versa.
The cross pollination between MSHA’s two worlds is well under way, for good and otherwise. Below is a description of what “One MSHA” is looking like these days, followed by one example that falls into the “otherwise” category.
To date, MSHA reorganized its enforcement, dividing the country into three roughly geographic regions – Eastern, Central and Western. MSHA hasn’t shared its reasons for drawing the boundaries as it did. As such, we do not know exactly why the map looks as it does. For the most part, the map makes sense, but there are some exceptions.
For example, it isn’t clear why MSHA put most of East Tennessee and a good part of Middle Tennessee in the Central Region, while West Tennessee is in the East Region. MSHA split Mississippi vertically (though at an angle), putting one half in the Central Region and the other in the East. North Georgia is in the Central Region, while the rest of the state is in the East. MSHA had reasons for drawing the map this way, but time will tell if MSHA’s reasoning was sound.
Each region has a mix of both coal and metal/nonmetal mines. District managers now report to a regional administrator. MSHA has renamed District Offices for the city where they are located, e.g. the Northeast District is now Warrendale, Pa. David Weaver is the regional administrator for the Central, Brian Goepfert holds that position in the West Region and MSHA recently announced that Samuel Pierce is the regional administrator for the East.
Pierce previously served as the manager of the Southeastern District in Birmingham, Ala. All three have many years of experience at MSHA, and I am sure their names are familiar to many of you. Of course, if you do not already know your regional administrator, now is the time to call and introduce yourself and your company to him.
In this space back in July of 2018, I described some of the differences at MSHA between coal and metal/nonmetal. The most obvious is the fact that different standards apply to each – Parts 75/77 for coal and Parts 56/57 for metal/nonmetal. Coal inspectors know where to find Parts 56/57, and it shouldn’t take that much time or effort to get up to speed on those standards. However, that doesn’t mean that a coal inspector will interpret or apply a standard like a metal/nonmetal inspector.
A coal inspector’s experience in coal will likely inform their judgement and approach when that inspector inspects a sand mine or a granite quarry. Most of the time, that’ll be fine, and it may even be beneficial from a safety or health standpoint.
That’s not always going to be the case. No doubt, some coal inspectors (and their supervisors) are going to insist that the way it’s done in coal is the way it should be done everywhere. For example, at a coal mine, 30 C.F.R. § 75.518-1 provides that devices used to provide short circuits or overloads must comply with the 1968 National Electrical Code (NEC).
Thus, coal inspectors – particularly those who tend to focus on electrical issues – are (or should be) very familiar with the NEC. MSHA incorporated the NEC by reference in several different coal standards. They enforce those standards and, by reference, the NEC. In their world, if it complies with the NEC, it must be safe (or, at least, not dangerous).
In metal/nonmetal, that’s not the case (except for overhead powerlines). Per 30 C.F.R. § 56/57.12001, circuits must be protected from “excessive overloads” by fuses or breakers “of the correct type and capacity.” Compliance with the NEC is not required.
Seeing it Different
A few coal inspectors, who are now inspecting metal/nonmetal mines, don’t see it that way. They’re intent on enforcing the NEC at metal/nonmetal mines. So, when their inspection of electrical equipment such as a motor control center (MCC) revealed that it is not in compliance with the 1968 NEC, these inspectors issued citations for violations of 30 C.F.R. § 56/57.12030.
That standards requires that “[w]hen a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.” As I understand it, the theory is that non-compliance with the NEC is a “potentially dangerous condition” that must be corrected.
That’s wrong for a host of legal and factual reasons. Broadly speaking, the law usually doesn’t allow one to do indirectly what it prohibits one from doing directly. If MSHA (or any government agency) wants to enforce a third-party consensus standard like the NEC, MSHA must make that clear and properly incorporate that standard by reference. It didn’t incorporate the NEC by reference (or even mention it) in Section 56/57.12030.
Moreover, much has changed since 1968, including the NEC. In fact, the NEC is updated regularly and has, for years now, expressly stated that it does not cover electrical installations in underground mines and self-propelled mobile equipment for surface mines. Put simply, MSHA will need a lot more to establish that a motor control center at a quarry is “potentially dangerous” under Section 56/57.12030 than an allegation that it doesn’t comply with the 1968 NEC.
Blurring produced the bad paper described above, but bad paper and inconsistent and/or erroneous interpretations of standards aren’t new. If the system works, MSHA will vacate the citations at conference or after the operators contest the citations. Nevertheless, these citations are an example of the influence of MSHA’s approach in coal on metal/nonmetal enforcement.
In many ways, “One MSHA” is a different agency than the MSHA that we all knew. It has and will continue to change as the distinction between the coal and metal/nonmetal fades over time. It will be interesting to see, and it bears watching closely.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected]