MSHA Faces ‘Significant Challenges’ in Meeting Its Mandate to Protect Miners, DOL Inspector General Concludes

Quick Hits

• The DOL’s Office of Inspector General (OIG) audit found that MSHA had not completed nearly 1,600 mandatory mine inspections from FY 2018 through 2021, despite reporting a nearly 100 percent completion rate.
• The OIG also found that MSHA “had no policy requiring inspections” to end in the same fiscal year that they were started.
• The OIG report urged the agency to make the reduction of powered haulage and machinery accidents “a top priority.”

The OIG report also found significant deficiencies in the Occupational Safety and Health Administration’s (OSHA) overall performance. Much of the OIG’s critique of MSHA built on earlier audits that had been conducted of MSHA’s overall activities.

Digging Deeper

The report, titled “U.S. Department of Labor’s Top Management and Performance Challenges,” was critical of the substance and pace of MSHA’s efforts to effectively manage its inspection and regulatory obligations.

For instance, the report focused on an OIG audit from October 17, 2023, that found MSHA had not completed or accurately reported mandatory inspections. Specifically, the audit concluded that the agency had not completed an estimated 1,589 mandatory mine inspections during fiscal years (FY) 2018 through 2021, despite reporting a nearly 100 percent completion rate.

Review of the audit indicates that this was due in large part to problematic internal control systems and policies to manage and count inspections. In particular, the OIG pointed out that the agency had difficulty identifying when a mine needed a change in its operating status (i.e., idle or abandoned) or in verifying its status. This impacted how many inspections MSHA conducted at a mine.

The audit also pointed out, among other things, that “MSHA ha[s] no policy requiring inspections to end in the same fiscal year they are started, which can lead to inspection work not being counted in the appropriate fiscal year.” The OIG examined data for 78,598 mandatory inspections ending in FY 2018 through FY 2021 and found that 255 inspections had begun in one fiscal year and ended in another fiscal year.

Other Findings

Another ongoing challenge emphasized in the OIG report was the agency’s overall management of the process of issuing, terminating, modifying, and abating violations.

This criticism was addressed in a 2022 OIG audit of MSHA. Specifically, the OIG criticized MSHA for what it contended was a tendency to provide operators with broader abatement deadlines than were necessary, as well as a failure to issue a sufficient number of 104(b) orders under the Mine Act to punish operators for failing to timely abate violations.

The impact of this criticism has clearly been felt by mine operators who have experienced shorter abatement deadlines and less willingness by inspectors to extend abatement deadlines. The inclusion of this issue in this latest report will likely increase the pressure on inspectors to tighten abatement times for operators.

Additionally, the OIG report appeared to offer veiled criticism of the pace of MSHA’s rulemaking efforts with respect to respirable crystalline silica and powered haulage.

While noting that the agency had issued its proposed silica rule in July 2023, the OIG also noted that the final rule “ha[d] yet to be published.”

Without any real discussion or recognition of the important notice and comment procedures that are underway, the report suggests that this delay has made miners “susceptible to higher levels of exposure, which can lead to increased chances of developing not only cancer and black lung disease but also silicosis.”

With respect to MSHA’s powered haulage rulemaking and enforcement efforts, the OIG urged the agency to make the reduction of powered haulage and machinery accidents “a top priority.” It cited the fact that these types of accidents “accounted for half of all mine fatalities in 2022 and that percentage has already increased as of September 2023.”

While acknowledging that MSHA had submitted a final rule to the Office of Management and Budget (OMB) in September 2023 (MSHA published the powered haulage rule in the Federal Register on December 20, 2023, requiring operators to develop written safety programs for surface mobile and powered haulage equipment), the strong undercurrent of the report was that the agency needed to do more to address the problem. Given this pressure, further agency initiatives with respect to machinery safety are likely not too far off.

The OIG concluded its report with four summary recommendations. Specifically, these included the following:

• Improve the agency’s internal control system to ensure all mandatory inspections are conducted.
• Provide additional training to inspectors regarding the citation writing and abatement process.
• “Add machinery accidents to the initiative efforts to lower powered haulage accidents.”
• Publish the final respirable crystalline silica rule.

In the past, the agency has reacted swiftly to address OIG concerns and recommendations. Mine operators may want to watch closely, as this reaction could have an impact on their operations.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will publish updates on the Mine Safety blog as additional information becomes available.

A version of this article was previously published in Pit & Quarry magazine.

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