January 23, 2018
On Nov. 15, 2017, the U.S. Senate voted 52-46 to make former mine executive David Zatezalo the Department of Labor’s assistant secretary for mine safety and health. Once he is sworn in to lead the Mine Safety and Health Administration (MSHA), Zatezalo will be responsible for safety across all of the nation’s mines. He takes the position last held by Joseph A. Main, a former United Mine Workers of America safety official. By the time you read this, Assistant Secretary Zatezalo will have figured out the lay of the land and possibly started putting his stamp on the agency.
Zatezalo earned a mining engineering degree from West Virginia University in 1977 and an MBA from Ohio University. He later became a mine foreman and, subsequently, general superintendent for Southern Ohio Coal Co. He moved to Australia, where he worked for Broken Hill Proprietary as a general mine manager. Finally, Zatezalo returned to Lexington, Ky., to head Rhino Resources GP LLC until his retirement in 2014. Having begun his career as a coal miner and having worked his way up the ranks to president and CEO, Zatezalo has a keen understanding of the needs of the mining industry.
So what will likely be Zatezalo’s focus in the remaining three years of his term and what is in store for the future of MSHA?
First, in a previous column, I mentioned that we may potentially see an MSHA that stresses compliance assistance and regulatory reform rather than concentrating strictly on enforcement and rule promulgation, as had been the emphasis of the prior administration. For the past eight years, MSHA has maintained an aggressive regulatory agenda, focusing on topics such as workplace exams, silica exposure, and pattern of violations. It has also been continuously regulating by policy without notice-and-comment rulemaking. However, in his first week in office, President Trump issued Executive Order 13771, which aims to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.” It requires that “for every new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
In light of Executive Order 13771, MSHA issued a notice on Oct. 23, 2017, indicating its desire to seek stakeholders’ assistance in identifying those regulations that could be repealed, replaced, or modified without reducing miners’ safety or health. While input from stakeholders is certainly welcome and necessary, it remains prudent to couch any recommendations in the correct light given the requirements of the Mine Act. Section 101 of the Mine Act proscribes that “no mandatory health or safety standard promulgated under this title shall reduce the protection afforded miners by an existing mandatory health or safety standard.” Thus, opponents of the new administration’s regulatory reform effort will undoubtedly explore utilizing Section 101 in legal challenges to situations where either regulations are reformed or two existing regulations are eliminated to make room for a new standard.
Second, MSHA will likely begin to work with operators to ensure the protection of all miners instead of simply emphasizing compliance above all else. While compliance implies safety, it is important to realize that they are separate sides of the coin that need to be addressed by the industry. As such, we expect an increase in MSHA training materials and guidance documents similar to the MSHA guarding presentation that was published in October 2012. We also expect MSHA to establish a conference process prior to issuance of penalties, wherein operators will have a chance to discuss and address any safety issues with MSHA before penalties are issued. This cooperation with MSHA does not end with compliance. It will likely extend to MSHA working with individual mines instead of lumping the entire industry together. Thus, we anticipate a return to the development and implementation of mine plans arising from an operator-specific approach where there is a fair weighing of all evidence concerning the suitability of the plans for the particular mine, rather than a one-size-fits-all approach.
This cooperative-based approach will be further necessitated by the potential changes to agency deference. As historically established, courts are required to defer to an agency’s interpretations of its own regulation “unless that interpretation is plainly erroneous or inconsistent with the regulation.” This is generally known as Chevron and Auer deference. However, on Jan. 11, 2017, H.R. 5 – Regulatory Accountability Act was introduced in the House and would repeal both Chevron and Auer. Without the unbridled ability to both promulgate and interpret its own laws, it will be imperative that MSHA work with industry to find common ground in regulatory interpretation or otherwise become susceptible to legal challenges.
Finally, at his confirmation hearing, Zatezalo expressed support for rebuilding and reorganizing MSHA. This would likely include a much-needed reallocation of resources. From 2011 to 2014, there was an 18-percent decrease in the number of coal mines throughout the United States. Despite the substantial decline in the number of coal mines, the amount of money and number of inspectors allocated to inspect those mines has remained fairly consistent. MSHA should work to move personnel to other areas of need and increase training for all inspectors. Proper training and the appropriate allocation of personnel will enable MSHA to enhance safety in all mines through improved inspections and cooperation with operators. Because of the ease in which this can materialize, it is highly likely that this type of administrative reform will be the first order of business for Zatezalo. Only time will tell how much, or how quickly, regulatory overhaul and compliance assistance will occur.
Ross J. Watzman is a counsel in Jackson Kelly PLLC’s Denver office, where he practices in the Occupational Safety and Health Group. He can be reached at 303-390-0189 or firstname.lastname@example.org.