Earlier today, the United States Senate voted to confirm David G. Zatezalo as the Assistant Secretary of Labor for Mine Safety and Health. The vote split along party lines, with all 52 Republican Senators voting to confirm the nominee and every Democratic Senator voting against him. Zatezelo should be sworn in later this week or next.

As the new leaders at MSHA start to report to work, what changes should they consider? From my work helping mine operators navigate MSHA compliance and challenges, a number of broad trends have emerged in recent years. In the current issue of Coal Age, I consider 10 changes that could make a difference. Continue Reading My clients’ top 10 MSHA changes that could make a difference

Opposition to the Trump Administration’s nomination of David G. Zatezalo heated up earlier this week, as three of the Democratic members of the Senate Health, Education, Labor and Pensions (HELP) Committee sent a letter to the Secretary of Labor requesting a slew of documents and information from MSHA.

On September 2nd, President Trump announced his nomination of  David G. Zatezalo to serve as the Assistant Secretary of Labor for Mine Safety and Health.  He has more than forty years of mining experience – all in coal – where he started as a union laborer in the mines and worked his way to the top, retiring in 2014 as the President and CEO of Rhino Resources, Inc.

The records request dates back to 2001 and concern Rhino Resources’ compliance record and comments and positions taken on MSHA rules by trade associations in which that Mr. Zatezalo was involved.  For example, the letter requests all the information MSHA can provide about the 2010 and 2011 Potential Pattern of Violations notices that MSHA sent to the Eagle No. 1, a mine operated by Rhino Eastern LLC.

Senator Joe Manchin (D-WV) apparently has all the information about Mr. Zatezalo that he wants and decided not to wait for the confirmation hearing to oppose the  nominee.  On Wednesday, he announced that “[a]fter reviewing his qualifications and record of safety during his time in the coal industry, I am not convinced that Mr. Zatezalo is suited to oversee the federal agency that implements and enforces mine safety laws and standards.”

For his part, Mr. Zatezalo has been open about his outlook, his formative experience as a working coal miner and his time in the industry.  In an interview with The Intelligencer Wheeling News-Register earlier this month, he said the policies of the last Administration “were wrong . . . there were too many elitists in the government who really just had no connection to working America. … I still think of the world as being one that if you can provide opportunities for people, they’ll do well.  If you don’t provide opportunities, they won’t.”

The  HELP Committee scheduled a hearing on Zatezalo’s confirmation for Wednesday, October 4th at 3:00 pm (EDT).

This morning, MSHA posted advance copies of two rules, which it will formally publish tomorrow, to briefly delay and modestly amend its pending 2017 Workplace Examination Rule as expected since early August. The proposed changes appear to address two of the many concerns raised by industry regarding the 2017 rule. Continue Reading MSHA proposes delay and changes to new workplace examination rule

Out of the blue, MSHA cites an operator, claiming that the operator should have known that a condition or practice violated a standard.  MSHA itself—dozens of different inspectors and their supervisors—was unquestionably aware of the condition or practice for years or decades.  Now, the alleged violation must be abated.  Abatement will require significant changes, e.g. changes to the ventilation system, mine plan or to the type or equipment used at the mine. Continue Reading MSHA argues that its inspectors were “not intelligent enough”

In the last few months, mine operators around the country have seen individual MSHA inspectors and districts suddenly enforce new interpretations for a number of regulations. The latest rule evolving right before our eyes in one district could have widespread effect: grounding and continuity testing. Is MSHA’s new approach justified? Continue Reading Discontinuity: A new change in MSHA enforcement with far-reaching impact

MSHA will propose as yet undefined changes to the Workplace Exam Rule amendments adopted on Jan 23, 2017, that require exams prior to work, new records, and communication of exam results. We also expect MSHA will soon issue a further extension of the new rule’s current Oct, 2017 effective date.  In the interim, the industry association litigation challenging the rule is fully briefed and awaits an oral argument schedule. Discussions with key officials continue to emphasize the problems caused by the rule amendments and their improper publication, after the President’s regulatory freeze.

Isolated stack of folders, filesThe Sixth Circuit Court of Appeals recently held that MSHA could demand a miners’ personnel records to assist an investigation into a worker’s discrimination complaint. In Hopkins Coal, an operator refused to provide personnel records to an MSHA investigator on the grounds the agency had not identified any protected activity the miner engaged in. The request for documents included the personnel records for the complainant and other employees with similar discipline to that of the complainant.

The court of appeals held that MSHA had the right to the requested documents, even though those records were not required to be kept under the Mine Act, and that the files were “reasonably required” under Section 103(h) to conduct the investigation.

As noted in the dissent by one Circuit Judge, this records demand amounted to a “fishing expedition” where MSHA sought documents to support the miner’s complaint without the miner’s allegations being fully articulated. Essentially, MSHA’s document requests (particularly those related to the personnel records of other miners) amounted to an effort to help the miner allege a successful whistleblower complaint.