Pit & Quarry • April 2024 • MINE SAFETY & HEALTH ADMINISTRATION OUTLOOK

Ogletree Deakins’ Bill Doran joined the 2024 Roundtable to discuss the latest developments related to the Mine Safety & Health Administration

Bill Doran, shareholder of the Washington, D.C., office at Ogletree Deakins, is a regular contributor to Pit & Quarry whose practice is concentrated in safety and health law litigation. Doran offered insights on the Mine Safety & Health Administration (MSHA) Feb. 2 at the 2024 Pit & Quarry Roundtable & Conference. He reflected on MSHA’s recent enforcement actions and what the rest of the year might look like on the agency front.

KEVIN YANIK (PIT & QUARRY): MSHA’s long-awaited final rule on mobile equipment came forward at the very end of 2023. What’s your overall impression of the rule, what are the key details producers need to know, and what sorts of issues should they be aware of regarding the structure of the rule and its lack of specificity?

BILL DORAN (OGLETREE DEAKINS): The rule provides some flexibility for operators to design a written plan that addresses the specific hazards and issues at each individual operation. It’s not one format that is going to apply to all operations. That gives people a source of optimism.

The rule requires operators to have a written mobile equipment safety program in place by July 17 of this year. In putting that rule together, MSHA has a requirement that you solicit input from miners and stakeholders within your company to try to evaluate the types of things that are necessary at an operation to address particular hazards. MSHA is going to want to see in a plan that there’s a regimen or routine for making sure repairs are ongoing, as well as that there’s a procedure in place for those types of things.

The rule also requires that a responsible person be designated to oversee the plan, and to make sure there are annual updates if there are changes at your operation.

YANIK: What are your impressions about the flexibility the rule provides and the hazards that an operator or person responsible for the plan might encounter down the road?

DORAN: I think the feasible technology element of the regulation is raising some concerns, because they’re not sure how that’s going to impact specific operations.

If, for instance, you’re a large company with several operations and you’ve put a high-tech camera system on your equipment or you have proximity indicators or warning systems – and you have them at one operation, but you don’t necessarily have them at another operation: If the explanation for why those things hasn’t been implemented at the other operations is concerning to MSHA, does that mean they’re going to issue a citation?

Does that mean they’re going to focus on a responsible person having not adequately done his job under this new regulation? These are the types of questions stakeholders are going to be asking MSHA about when they’re out there. It’s one of those things where we’re waiting for more information to know exactly how these things are going to impact everyone.

YANIK: Looking elsewhere, can the mining industry expect a ruling from MSHA in 2024 on crystalline silica? What might the timeline of that look like? And do you have a sense of what the agency’s expectation might be on how operators mitigate silica?

DORAN: In terms of timing, we’re probably looking at sometime around April. It’s my understanding that April is crucial from the standpoint of internal timing and steps that have to be taken in order for the regulation to be deemed a complete regulation.

In terms of the regulation itself, it’s the lack of flexibility that has people concerned. We’re looking at PEL (permissible exposure limit) being cut in half and an action level of 25 micrograms per cubic meter. Under the OSHA (Occupational Safety & Health Administration) standard, if you can demonstrate with data that you can’t get 25, you’re not required to go through that sampling regimen. That’s not the case with the MSHA standard, and that’s a real concern.

If you exceed the 25-micrograms-per-cubic-meter action level but you can demonstrate that you’re never going to get over the 50 PEL, per the OSHA standard, you don’t have to go through that sampling regimen. You do under the MSHA standard.

YANIK: Where is MSHA right now with its frontline inspector personnel? What feedback are you getting from operators about their knowledge and experience – or lack thereof – and what potential problems does that present?

DORAN: The thing I’ve been hearing of late is a concern that more of the newer inspectors don’t have the experience in the mining industry that they used to have. I think the standard used to be somewhere around five years. And for a variety of reasons – recruiting anomalies or other factors – they haven’t been able to pull that level of experience in big numbers. So, you’re seeing more people with less experience in the mining industry coming in, and people who maybe have construction experience and other things that they think, with training, can translate into being an MSHA inspector. I know there’s some level of frustration about that. It’s certainly something MSHA’s focused on.

YANIK: What is your impression of how MSHA has been governed under assistant secretary Chris Williamson? Did he meet your expectations? Also, what might happen with MSHA if President Biden is re-elected in November? And what might the impact be if former President Trump wins the presidency?

DORAN: In terms of what we would see in a second Biden administration, I think you’d see more of the same. In terms of rulemaking, I don’t know if they’ve got anything else on their radar other than the rollout of crystalline silica and the mobile equipment standard. I think that’s going to take up a lot of bandwidth.

What they’re getting so much pressure on is they need to devote their attention to try to get this fatality spike under control. They’re feeling a lot of pressure from that, and you’re going to see more of these impact inspections happening. I don’t think everybody should just anticipate that if Donald Trump wins the election, that, all of a sudden, you’re going to see enforcement drop to a standstill. One of the most significant enforcement eras at MSHA was during the George W. Bush administration. That happened for a variety of reasons – not the least of which was some very serious, fatal accidents that happened in the coal fields. There was just no choice but to go all out on enforcement. Circumstances often overtake politics when it comes to safety issues.