OIG’s Audit of MSHA Enforcement is a Mess

Audits aren’t fun for anyone. Most of the time, the Mine Safety and Health Administration (MSHA) is basically the auditor. Last year, the Department of Labor’s Office of Inspector General (OIG) audited MSHA to determine if MSHA properly managed the “process [MSHA] used to issue, terminate, modify and vacate violations.” Everyone would benefit from an audit aimed at objectively answering that question and executed by individuals who understand the agency and the industry. Unfortunately, that’s not how I’d describe this audit, and it’s not how MSHA described it.

The OIG “analyzed more than 736,000 violations” issued between January 1, 2013, and September 30, 2019,” reviewed inspection reports, and reviewed supervisory reports from six districts that [OIG] judgmentally selected.” It also “interviewed MSHA headquarters, district, and field office personnel to learn the violations process” and “interviewed a representative from the United Steel Workers, United Mine Workers of America Union, and the Solicitor’s Office within the Department of Labor.”

According to the OIG, MSHA did not properly manage the violation process it used to issue, terminate, modify and vacate violations because of significant weaknesses in MSHA’s violations process. The process weaknesses included untimely verifications that operators corrected hazards by due dates, due dates set longer than necessary and unjustified extensions of those due dates, violations with errors, unclear justifications for vacating violations, and supervisory reports that were incomplete or inaccurate. These issues were mainly due to MSHA’s insufficient oversight and missing or improperly designed system controls.

The OIG found that nearly a third were not terminated by the “required due date.” According to the OIG, “[violation abatement due dates were longer than necessary and varied widely, and extensions were unjustified.” The OIG also said MSHA did not issue “104(b) orders in a consistent or timely manner.”

The OIG also faulted MSHA for its failure to properly explain why it vacated citations. The OIG reviewed 12,278 “vacated violations” among the 736,000 “violations” studied and found that “more than 20% had either vague reasons listed or no reasons listed at all. Examples included: ‘issued in error,’ ‘after further review, this citation is vacated,’ ‘after further review it was determined that a citation was not justified,’ and ‘upon further review it has been determined that this is not a violation.’”

The OIG also found that “[t]housands of violations written by MSHA inspectors did not comply with the Mine Act and MSHA Handbook requirements.”

MSHA didn’t exactly agree with the OIG’s findings. The OIG noted that “MSHA expressed concerns about the balance and tone of the report and the fact that we did not give it credit for improvements resulting from organizational changes it made toward the end of our scope period.”

MSHA did agree with some of the recommendations, and acknowledged that its inspectors may benefit from additional training and more effective supervision. However, MSHA said OIG failed to understand a couple of basic, but critical concepts.

Mine operators must abate (correct or fix) every alleged violation cited by MSHA within a reasonable time, and the issuing inspector decides what’s reasonable. If the alleged violation isn’t abated within the time set by the issuing inspector, the inspector must issue an “order of withdrawal.” When an operator abates an alleged violation, MSHA terminates it. That’s all “MSHA 101” or “basic MSHA.”

Unfortunately, it seems the OIG did not understand the difference between abatement and termination.

MSHA explained that “once a hazard has been identified, it is the operator’s responsibility to abate the hazard, and if this cannot be done immediately, the operator will danger off the hazardous areas. . . [I]t may take additional time for MSHA inspectors to physically return to the mine and terminate the citation. In such a circumstance, the mine operator would danger off the area to assure miners are not exposed. The OIG’s conclusion that citations that have ‘overdue’ (extended) due dates means the hazards have been unabated, thereby exposing miners to hazards longer than necessary, or putting the safety of miners in jeopardy is incorrect.”

In short, “MSHA disagree[d] with the OIG’s use of ‘abate’ and ‘terminate’ as synonyms in this report and disagrees with the OIG’s conclusions.”

Why does this matter? Even though MSHA rightfully disagreed with a lot of what the OIG said, MSHA has and will continue to listen to the OIG. MSHA has and will pay closer attention to the time set by inspectors for abatement, to abatement deadlines and to terminations. Inspector may be quicker to issue 104(b) orders. To avoid that, operators should continue to engage with inspectors about the time needed to abate alleged violations, keep a close eye on abatement deadlines, and request extensions before those deadlines pass.

Brian Hendrix is a partner with Husch Blackwell. He can be reached at brian.hendrix@huschblackwell.com.