• On the front lines with Fisher Phillips: Can David Zatezalo restore civility to MSHA?

    by Collin Warren and Travis Vance

    President Trump recently nominated David Zatezalo to be the new head of Mine Safety and Health Administration (MSHA). The nomination raises many questions, including what do we know about Mr. Zatezalo? Also, if he is confirmed, what would the industry like to see in the agency under his direction?

    To the first point, Mr. Zatezalo is a political and Washington outsider; however, he is well known within the mining industry. We all know Mr. Zatezalo is a retired coal mining executive, having worked for Rhino Resources, as well as being a former union laborer early in his mining career. As a former mining executive, Mr. Zatezalo is certainly not an outsider to the industry – nor is he some ideological political appointment; rather, he is a reflection of the mining industry. As such, we expect (and hope) that he will restore civility between the often difficult agency and the mining community. Indeed, as a reported former miner, mine foreman, superintendent, general manager, president and CEO of a coal company, it is hoped that the 62 year old will be quickly confirmed and that MSHA will be able to fill this tremendously important role. The potential that an agency head might carry over real world experience into the agency post is refreshing, but uncertain and untested. The real struggle may be changing entrenched mindsets on those within the agency who are tasked with enforcement.

    Indeed, it seems the largest test Mr. Zatezalo will face is reversing the mindset of many career bureaucrats that have long held posts within the agency under various administrations. Many of the individuals who make the day-to-day calls that impact the lives of the mining community have been in place through multiple administrations and have changed little during those times. As such, the ability to make quick and lasting changes may be difficult. For example, the individuals who hold posts within the regional offices are unlikely to change (either in position or mind) despite logical and knowledgeable leadership.

    Even with these potential difficulties, what could Mr. Zatezalo do to make a quick impact or extend an olive branch to the industry? Here are our thoughts on making amends:

    • MSHA could reign in its use of 110(c) actions and Special Investigations. MSHA’s use of the 110(c) and Special Investigation process has created an extreme level of distrust between the mining community and the agency. The agency’s whimsical use of the threat to impose civil penalties on individual miners has simply backfired. MSHA has shown little discretion in some regions in its imposition of the 110(c) process. This should promptly change.
    • MSHA could be more selective – and less subjective – in its use of Special Assessments. Simply put, the use of Special Assessments to simply increase the penalty amount where it sees fit places too much uncertainty on the industry. In the event the agency desires to use a Special Assessment, providing employers with a legitimate, transparent rationale for the Special Assessment, other than telling the employer that a violation of the Mine Act occurred, would be helpful.
    • Utilizing more outreach efforts, instead of citing every violation observed would help restore civility. MSHA’s inspectors have a reputation for citing everything they see (and a few they don’t see) and have become little more than mining industry tax collectors. If MSHA would work on outreach efforts, in the field and on a day-to-day basis, the workplace and working environments would improve quickly—along with relationships. MSHA has long been too willing to issue a low dollar amount citation/order (and in some events designating alleged violations as S&S)—which has many business ramifications—instead of working with employers to identify and correct smaller violations.

    So, what can we expect from Mr. Zatezalo? Assuming he is confirmed, we should expect an individual who is familiar with the industry, the issues it faces, the operational difficulties, and the problems the agency presents. What will Mr. Zatezalo do about this and will he be effective in making changes? While those questions remain to be answered, the mining community should have high hopes for Mr. Zatezalo. The mining industry should expect that Mr. Zatezalo will attempt to make the agency more viable for the future, attempt to streamline and make the agency more efficient, and attempt to make the agency less about maintaining its bureaucratic identity (i.e., the status quo) and more about furthering the safe work of the industry.

    Collin Warren is a partner in the firm’s Houston and Dallas offices and can be reached at cwarren@fisherphillips.com or 713.292.9100. Collin has nearly 15 years of experience representing clients in state and federal courts, as well as before the Occupational Safety and Health Administration (OSHA) Review Commission, Mine Safety and Health Administration (MSHA) Review Commission, Equal Employment Opportunity Commission (EEOC) and other state and federal regulatory agencies.

    Travis Vance is Of Counsel in the Fisher Phillips’ Charlotte office and can be reached at tvance@fisherphillips.com or 704.778.4163. He has tried matters across several industries and various subject matters, including employment litigation, business disputes and matters prosecuted by the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA).

    For more information about Fisher Phillips visit www.fisherphillips.com.

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