The results of MSHA’s recent performance review

By and |  January 3, 2024
Bill Doran

Bill Doran

Margo Lopez headshot 2022 Ogletree Deakins


The Mine Safety & Health Administration (MSHA) received a performance review over the holiday season from the Department of Labor’s Office of Inspector General (OIG).

The conclusion of the review was that MSHA has significant challenges facing it in meeting its overall mandate to protect the safety and health of roughly 300,000 miners working at almost 13,000 mines.

The report also found significant deficiencies in the Occupational Safety & 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

Issued in November, 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 focuses on an OIG audit from Oct. 17, 2023, that finds MSHA has not completed or accurately reported mandatory inspections. Specifically, the audit concludes that the agency had not completed 1,589 mandatory mine inspections through fiscal years 2018 to 2021 despite reporting a nearly 100 percent completion rate.

Review of the audit indicates 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 the mine.

The report also points out, among other things, that MSHA had no policy requiring inspections to end in the same fiscal year they were started. This often led to inspection work not being counted in the appropriate fiscal year.

Other findings

Another ongoing challenge emphasized in the OIG report is 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 to punish operators for failing to timely abate violations.

The impact of this criticism has clearly been felt by mine operators who’ve 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 appears 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 issued its proposed silica rule in July 2023, OIG notes that the final rule “has yet to be published.”

Without any real discussion or recognition of the important notice and comment procedures that are underway, the report suggests 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 urges the agency to make the reduction of powered haulage and machinery accidents “a top priority.” It cites 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 submitted a final rule to OMB in September (OMB finished its review in December) requiring operators to develop a written safety program for surface mobile and powered haulage equipment, the strong undercurrent of the report is that the agency needs 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 concludes its report with four summary recommendations. Specifically, these include 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 initiative efforts to lower powered haulage accidents

• Publish the final silica rule

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

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

Featured photo: shotbydave/E+/Getty Images

Related: Final rule on mobile equipment emerges from MSHA

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