Inspector general’s findings introduce new pressures on MSHA enforcement

The Department of Labor’s Office of Inspector General (OIG) conducted an audit of the Mine Safety & Health Administration’s (MSHA) overall management of the process of issuing, terminating, modifying and abating violations. 

The OIG reviewed 706,007 citations and safeguards issued between Jan. 1, 2013 and Sept. 30, 2019, identifying a number of shortcomings. Of particular note, the OIG determined that 218,354 of the citations and safeguards were terminated after the abatement deadline set by MSHA.

The OIG criticized the agency’s effort in this regard and asserted that these overdue terminations could result in “miners’ unnecessary continued exposure to work hazards.” The OIG also reproached MSHA for what it contended was a tendency to provide operators with broader abatement deadlines than were necessary and a failure to issue a sufficient number of 104(b) orders to punish operators for failing to timely abate violations. These findings will undoubtedly put pressure on the agency to be more aggressive in its enforcement of operator abatement obligations.

What to know

At first glance, these missed abatement deadline numbers would seem to illustrate a serious lapse on the part of MSHA and mine operators in correcting cited hazards. A look behind these numbers, however, would indicate a much more nuanced situation. 

For instance, of the 218,354 cited conditions that were listed as overdue, 199,802 were “verified” by MSHA as having been corrected within 13 days of the abatement deadline. Verification is the critical point in this discussion.

This is generally not a story about operator failure to abate cited conditions. In fact, the OIG report acknowledges that the primary reason for overdue terminations is the inspectors’ inability to return to the mine before the deadline to verify that abatement was accomplished. So, in actuality, most of these conditions were likely abated by the deadline, but not verified until later.

The report also notes that this inability to return by the deadline is due to the voluminous inspection duties that inspectors are conducting over a large geographic area.

One recent agency initiative, the One MSHA program, was designed at least partly to address the issue of providing more inspector flexibility and less travel time. Unfortunately for MSHA, that program was probably not in place soon enough to affect this OIG audit sample.

The more problematic element of the report deals with OIG’s conclusion that MSHA is issuing too few 104(b) withdrawal orders. Under the Mine Act, the agency can issue such a withdrawal order when an operator failed to abate a violation within the deadline fixed in the citation and finds no basis for extending the abatement timeframe. People familiar with inspection and investigation situations know the agency is generally amenable to extending abatement deadlines if the operator is making good faith efforts to correct the condition and personnel are not exposed to any hazard. 

This can happen in circumstances where, for instance, repairs are delayed by unavailability of parts, necessary abatement work is hindered by weather conditions, or access is inhibited by operational difficulties. The OIG does not appear to recognize the appropriateness of these types of scenarios.

Instead, it sees what it perceives to be a low number of 104(b) orders in comparison to overdue citations and concludes that the agency is being inconsistent. For instance, the OIG states that: “ MSHA [only] issued over 3,500 orders during a time when more than 50,000 violation were overdue by seven or more days. As noted, with two options when violations reach their due date (withdrawal order or extension), [the OIG] would have expected to see MSHA issue a higher number of 104b orders.”

This conclusion is reached without any clarity on whether people were exposed to hazards. Nonetheless, the message to MSHA is clear: start issuing 104(b) withdrawal orders and get your numbers up.

It should also be noted that the OIG report criticizes what it sees as a wide range in abatement due dates set by inspectors. The OIG concludes that inspectors are generally giving operators “due dates longer than necessary.”

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com.