Coal Age

MAR 2017

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48 www.coalage.com March 2017 legally speaking January was anticipat- ed to mark the begin- ning of change for the Department of Labor (DOL) and its safety agencies, the Mine Safety and Health Ad- ministration (MSHA) and Occupational Safety and Health Ad- ministration (OSHA). President Donald Trump nominated Andrew Puzder as the next secretary of labor, but Puzder with- drew as a nominee. President Trump then nominated Alexander Acosta, a former member of the National Labor Relations Board (NLRB) and former United States attorney. What changes will Acosta bring? Several factors make it hard to predict those chang- es: he was a law clerk for the now Supreme Court Justice Samuel Alito; he prosecuted a multitude of white collar fraud and civil rights cases; and while on the NLRB, he gar- nered praise from both sides of the aisle. Former Assistant Secretary of Labor for Mine Safety and Health Joseph Main wound down his tenure with a series of interviews regarding the agency's safety statistics. MSHA's annual report indicated that fiscal year 2016 was the safest year in mining history — with nine fatalities in coal mines and 16 fatalities in metal/nonmetal mines. The mining industry is the first to acknowledge that one miner fatality is one too many, and thus should also take pride with the ongoing reduction in fatalities. Main described himself as a proponent of enforcement, and credited MSHA's in- creased enforcement efforts over the last eight years for the improved safety statis- tics, claiming that MSHA is trying to devel- op a "better culture in the mining industry." He also said MSHA has a good working re- lationship with the industry. Main's belief that the agency has any semblance of a working relationship with its stakeholders is questionable at best in light of his agency's actions in the last three years. For example, MSHA encountered vo- cal opposition to its ill-conceived attempt to change the existing civil penalty scheme and hamstring the ability of the Federal Mine Safety and Health Review Commission's authority to independently assess penalties against operators. Similarly, MSHA expend- ed significant effort to preclude the courts from reviewing its Pattern of Violations crite- ria. Main advocates that criminal violations of the Mine Act should be elevated from mis- demeanors to felonies. These positions might be based on Main's belief that recent safety improve- ments were attributed to MSHA's track re- cord of tougher enforcement, stricter regu- lations and increased penalties for specific standards known as the Rules to Live By. The Trump administration likely disagrees, having referred to overregulation as a "quiet tyranny" oppressing the economy. To anticipate MSHA's future priorities, we must look at agency enforcement pat- terns under Republican administrations and past statements from Acosta. Generally speaking, Democrat admin- istrations are inclined to promulgate new regulations to address a perceived problem while Republican administrations are in- clined to address that problem by enforcing existing regulations, if only to prove new regulations are unnecessary. Acosta's credentials in the area of la- bor-employment law are undisputedly strong, if not stellar. However, in the area of safety and health, there is scant evidence that he has any practical experience with regulatory enforcement, or any first-hand knowledge of mining. Also, it is not clear that Acosta is in complete agreement with the president regarding an overabundance of regulations. Acosta wrote a 2010 law re- view article for Florida International Uni- versity, where he is currently the law school dean, recommending that the NLRB aban- don its "pre-World War II quasi-judicial administrative agency model" and promul- gate rules instead. Nevertheless, cabinet secretaries work for the president. If the Trump adminis- tration sees similarities between excessive regulatory burdens between OSHA and MSHA, the following initiatives and prior- ities could be in store for both agencies: • Discrimination/Whistleblower pol- icies: This was an area of emphasis for both OSHA and MSHA in the Obama ad- ministration, which was simplifying, if not encouraging employees to file complaints against their employers, and lowering the burdens of proof associated with those complaints. The Trump administration can change its policies without having to go through formal rulemaking or legislative procedures. • Respirable Silica standard: MSHA has previously indicated it would follow OSHA's lead on this topic. If Acosta revises or aban- dons this OSHA standard, it would not be a surprise for MSHA to follow suit. • Regulatory Enforcement versus Com- pliance Assistance: Under President Obama, OSHA and MSHA prioritized en- forcement as a means to alter industry be- havior. This was a departure from the previ- ous four administrations. • Occupational and Federal Mine Safe- ty and Health Review Commission post: There is a vacancy on both commissions. Republican appointees are likely to fill the current and future vacancies on both re- view commissions. The appointment of DOL assistant secretaries for OSHA and MSHA will not be made until after the Senate confirms Acosta. As a result, MSHA will most like- ly remain in the status quo mode we have watched since the election. ______________________________________ Erik Dullea is a senior counsel for the tech- nology, manufacturing and transportation areas at Husch Blackwell. He can be reached at erik.dullea@huschblackwell.com. How Will Trump's Nominee for DOL Secretary Affect MSHA, OSHA? By Erik Dullea

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