MSHA May Be Hiring, But It Should Only Be Interested In Experienced Miners.
By Brian Hendrix
Across the board, the labor market is tight, and that’s particularly true in the mining industry. Miners are in short supply. Mine operators are hiring. MSHA is also hiring, but MSHA should only be interested in experienced miners.
The Federal Mine Safety and Health Act requires MSHA to hire inspectors with mining experience. There are many good, very important reasons for that. However, MSHA has created a new program to recruit and hire candidates with no mining experience. None.
I first heard about MSHA’s new program when an industry friend called to ask if MSHA is allowed to hire inspectors with no mining experience, straight out of high school. Doesn’t the Act prohibit MSHA from hiring inspectors who don’t have any mining experience?
That is certainly what Congress intended. Section 954 of the Mine Act provides that
The Secretary may, subject to the civil service laws, appoint such employees as he deems requisite for the administration of this chapter and prescribe their duties … [A]uthorized representatives of the Secretary shall be qualified by practical experience in mining or by experience as a practical mining engineer or by education: Provided, however, that, to the maximum extent feasible, in the selection of persons for appointment as mine inspectors, no person shall be so selected unless he has the basic qualification of at least five years practical mining experience …
I do not know exactly how MSHA reads or interprets Section 954, but it’s not difficult to imagine how MSHA might read it as recommendation or a guideline, not as a hard and fast rule. I don’t doubt that MSHA prefers to hire inspectors with at least five years of practical mining experience. However, MSHA has and will continue to hire inspectors who don’t have the five years.
How about candidates who don’t have any mining experience? Candidates who’ve never worked in mining or in any industry even vaguely like mining? My answer, until recently, has been that MSHA usually doesn’t hire candidates who don’t have at least some mining or equivalent experience, e.g., a candidate with three years as a heavy equipment operator in construction and five years in the military. There may be an exception (or 10), but I’ve assumed that MSHA’s goal is to hire candidates who have some real-world experience in mining or in an industry that at least looks like mining.
Now, I’m not even sure of that. MSHA’s Congressional Budget Justification for FY 2023 requests a significant increase in funding for its “Mine Safety and Enforcement budget activity to increase enforcement personnel … based on the projected increased workload.” According to MSHA, its
current staffing levels are too low to effectively and efficiently address the projected expansion in mining … MSHA’s attrition rate is relatively high (8% average over the past five years) … Inspectors must go through significant training … The minimum timeframe required to adequately train Enforcement personnel to independently inspect mines is two years. Individuals in the newly created Enforcement Inspector position (occupational series 1801), most without mining experience, will have approximately one year of additional training before starting the training curriculum for Mine Safety and Health Inspectors, for a total of up to three years of intensive training.
This new Enforcement Inspector position was created in 2021 as a “hybrid occupational series (1801) to overcome hiring obstacles and to attract a more diverse and qualified workforce. The new series provides greater flexibility in hiring.”
According to the posting for the new position, “an entry-level enforcement inspector responsible for enforcing the mine safety and health laws” who “participates in onsite inspections and/or investigations of both surface and underground mining operations as applicable, which is a very hazardous and stressful work environment surrounded by a high risk of exposure to potentially dangerous situations. In addition to the characteristically dark, wet, and cramped environment, underground mines contain noxious gases and fumes, and the danger of potentially explosive dust or gases, electrical fires, roof falls, and exposure to radiation.”
I wouldn’t describe an MSHA inspector’s work environment as “very hazardous and stressful,” but we’ll leave that for another day. What’s clear from the posting that it’s aimed at young candidates with a little education and no real work experience. To qualify, candidates must have:
(1) Three years of general experience. “General experience” is experience that “demonstrates the ability to [a] analyze problems to identify significant factors, gather pertinent data, and recognize solutions; [b] Plan and organize work; and [c] Communicate effectively orally and in writing;” or
(2) a four-year course of study leading to a bachelor’s degree; or
(3) a “combination of education and experience listed above and the total percentage must equal at least 100%.” After they are hired on, these “entry level inspectors will spend approximately 21 weeks at the National Mine Academy” spread out over their first two years at MSHA. The new inspectors will also receive on-the-job training as they accompany senior mine inspectors on inspections and investigations. After three years, these entry level inspectors may become authorized representatives and independently inspect mines.
With great people and an amazing training program, it may be possible to turn a high school graduate with a year or two of additional education and some “general experience” into a good MSHA inspector in just three years. I wouldn’t bet on it though.
Experience truly matters in the mining industry; it matters to miners. Miners are less likely to ask an MSHA inspector for advice or information if the inspectors they’ve encountered are inexperienced, unqualified, poorly trained, etc. And, inexperienced, poorly trained inspectors erode the trust and respect that good MSHA inspectors need to be effective. I know that hiring is a problem for MSHA (and the industry), but hiring inexperienced, unqualified people isn’t the solution.
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 [email protected].