Where the Mining Industry Stands with MSHA—and What’s Ahead

It has been more than five months since President Biden took office, and while there is still a lot to learn about the prospective enforcement focus of the Mine Safety and Health Administration (MSHA), some priorities have 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? The process of selecting a new assistant secretary of labor for MSHA is moving at the same slow pace that produced the nomination and confirmation of the last assistant secretary. Unlike the Occupational Safety and Health Administration (OSHA), where—as of this writing—a nominee for assistant secretary was announced on April 9, 2021, a Senate hearing has been held, and a vote is expected soon, there seems to be little urgency to fill the MSHA slot.

With that said, the nomination of Doug Parker, the chief of the California Division of Occupational Safety and Health (Cal/OSHA), indicates a preference for safety agency leaders who are aligned with the Biden administration. The MSHA nominee will likely be similarly aligned with the new administration.

MSHA Actions Under the Biden Administration

Based upon the actions the agency has taken to date, it is all but guaranteed that MSHA will take a more aggressive approach.

Acting assistant secretary Jeannette Galanis announced in her early public statements that a substantial portion of the funds received from the American Rescue Plan Act will be directed toward the hiring of more enforcement personnel. Additionally, the Biden administration’s budget proposal calls for more enforcement personnel for the agency.

All of these initiatives are consistent with an enforcement trajectory designed to overturn what some 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.

Galanis has also indicated that the “One MSHA” initiative is alive and well and that it was too soon to change the program without allowing for more time to let it succeed. She defended the program from allegations of inconsistent enforcement, with a commitment to continue providing training to coal inspectors for metal/nonmetal inspections and also noted that surface coal safety issues were not that different from surface metal/nonmetal issues. As the chief of staff for former MSHA assistant secretary Joseph A. Main, Secretary Galanis is, of course, fully aware that coal and metal/nonmetal fall under 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 and Budget. The proposed rule is expected to be published in the Federal Register in July or August 2021. MSHA has been quiet on what is in the rule, but it is anticipated that, at a minimum, it 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 2021.

For many mine operators, compliance efforts are not dictated by the changing MSHA enforcement priorities. Still, operators may want to ensure that supervisors and managers are ready for the heightened level of enforcement activity that is expected. They may want to focus on operation violation history and repeat history—the types of factors that inspectors review 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.

Ogletree Deakins will continue to monitor and report on developments with respect to a nomination for assistant secretary of labor for MSHA and will post updates on the firm’s Workplace Safety and Health blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

A version of this article was previously published in Pit & Quarry Magazine.