OIG Concluded That MSHA Wasn’t Effectively Managing the Enforcement Process. So What Does That Mean for You?
By Brian Hendrix
Audits aren’t fun for anyone, though it’s better to be the auditor rather than the auditee. Most of the time, the Mine Safety and Health Administration (MSHA) is basically the auditor. On occasion, MSHA is on the receiving end of an audit.
Last year, the Department of Labor’s Office of Inspector General (OIG) audited MSHA to determine if the agency properly managed the “process [MSHA] used to issue, terminate, modify and vacate violations.” Everyone would benefit from a well-designed audit aimed at objectively answering that question and executed by individuals who truly understand the agency and the industry. Unfortunately, that’s not how I’d describe this audit, and it’s not how MSHA described it.
OIG’s Methods and Finding
To conduct the audit, OIG “analyzed more than 736,000 violations” issued between Jan. 1, 2013, and Sept. 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 Union, United Mine Workers of America Union and the Solicitor’s Office within the Department of Labor.”
Here’s how the OIG described its findings:
“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. As a result, these significant weaknesses hindered MSHA’s essential role in maintaining miner safety.”
More specifically, the OIG found that nearly a third of the violations it reviewed were not terminated by the “required due date.” According to the OIG, “[v]iolation abatement due dates were longer than necessary and varied widely, and extensions were unjustified.” OIG also determined that 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. OIG reviewed 12,278 “vacated violations” amongst the 736,000 “violations” studied and found that more than 20% had either vague reasons listed or no reasons listed at all. Examples of the vague reasons included the following: 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.”
As you might imagine, MSHA exactly didn’t agree with the OIG’s findings. The OIG noted that “MSHA generally agreed with our recommendations,” but “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.”
That’s a very diplomatic way of describing MSHA’s response. MSHA did agree with certain OIG recommendations, and it acknowledged that its inspectors may benefit from additional training and more effective supervision. However, MSHA very pointedly explained how OIG failed to understand a couple of very 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” – a failure to abate order – under Section 104(b) of the Act.
When an operator abates an alleged violation, MSHA terminates it. Put differently, MSHA cites an alleged violation, the mine operator abates the alleged violation and MSHA formally acknowledges the abatement of the alleged violation by terminating it. That’s all “MSHA 101” or “Basic MSHA.”
Unfortunately, it seems that OIG did not understand the difference between abatement and termination. In its response to the OIG’s report, MSHA pointed out that:
“the OIG mistakenly refers to extended due dates as ‘overdue’ due dates, and wrongly concluded that ‘extended’ due dates means that miners are exposed to hazards. 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 or remove equipment from use, etc., to assure miners are not exposed to the hazard. For example, an area with an inadequate roof may take time to abate and need multiple extensions to terminate the citation depending on the conditions of the mine, materials needed, and the time it would take to get materials. Moreover, it 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 disagrees with the OIG’s use of ‘abate’ and ‘terminate’ as synonyms in this report and disagrees with the OIG’s conclusions.”
Why You Should Care
So the OIG audited MSHA and concluded that MSHA wasn’t effectively managing the enforcement process. Why does this matter to you? The answer to that question is that, 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, to terminations. Inspectors may be quicker to issue 104(b) orders. To avoid that, operators should continue to engage with inspectors about the time they really need to abate alleged violations, they’ll keep a close eye on abatement deadlines and they will request extensions (in writing) before those deadlines pass.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected]