MSHA: More, More, More . . . of the Same

‘More Enforcement’ Is MSHA’s Favorite Answer To Every Problem.

By Brian Hendrix

According to Bloomberg Law, Assistant Secretary of Labor for MSHA Chris Williamson announced in early March that MSHA will increase the number or frequency of impact inspections. MSHA will also resume its practice of posting the names of mines targeted for impact inspections to MSHA’s website. 

Every month, MSHA will conduct targeted inspections at mines that, in MSHA’s judgement, merit increased attention due to their compliance history or “certain compliance concerns.” He also discussed Pattern of Violations (POV) enforcement, a clear signal that MSHA expects that one or more mines will qualify for POV enforcement this year. 

If this is news to you, you’re in good company. Williamson made this announcement at the American Bar Association’s Workplace and Occupational Safety and Health Law Committee Meeting in San Diego. 

I seriously doubt that there were any miners at that meeting, and MSHA hasn’t posted anything at all about it on its website or shared the announcement with other stakeholders. 

What Prompted This Announcement? 
That’s simple. Year to date, 13 miners have been fatally injured on the job. At the current pace, the industry would end the year with 23 more fatalities than last year’s total. Fortunately, that’s not how the world works. It’s not just that past performance is no guarantee of future results. In this case, future results aren’t connected to past performance. There’s no link. None. 

The fact that a certain number of events occurred during a given quarter doesn’t mean that the same or a similar number of such events will occur during the next quarter or over a longer period of time. Sure, a fatality at a surface aggregates operation in Georgia could be linked to a fatality at an underground gold mine in Nevada. 

For example, perhaps the same make, model and type of piece of equipment in use at both mines failed, causing both fatalities. That may have even happened at some point. It is or would be, however, incredibly rare. 

Unfortunately, MSHA doesn’t accept any of this. MSHA looks at the number of fatalities over a short period of time and sees (wrongly) a trend. It then reacts in a very predictable way. 

Not with more or more effective outreach, education or training. No, MSHA reacts to the fatalities so far this year in the same tired, utterly predictable way it reacted last year about this time: with more enforcement. 

Not smarter or more effective enforcement, just more. 

  • More S&S citations. 
  • More impact inspections. 
  • More POV notices. 
  • More penalties. 

“More enforcement” is MSHA’s favorite answer to every problem. Variations include “more resources (for enforcement),” “more regulations (to enforce)” and “(even) more (enforcement) authority.” 

In any case, if, at the end of the 2023, the total number of fatalities doesn’t exceed last year’s total, I’m sure MSHA will tell us that more enforcement was the right answer. If the total in 2023 exceeds that of 2022, MSHA will tell us to expect more enforcement. As MSHA sees it, MSHA’s favorite answer is never, ever the wrong answer. 

Does this make any sense?
We know – the data is quite clear – that injury/illness rates and numbers, fatality rates and numbers, etc. vary year to year for a host of different reasons. We also know – again, the data is quite clear – that short-term injury/illness and fatality rates/numbers do not reliably predict future rates/numbers. 

The data shows that the frequency of events over a specific period of time isn’t predictive of the frequency of events over a longer period of time when the events are not causally linked. 

Establishing a Link
Isn’t there a link between enforcement and injury/illness rates/numbers or fatality rates/numbers? I’d argue that there’s not, although that’s a much larger topic. If there’s any link, it would be in the aggregate and over a much longer period of time, but certainly not year-over-year or quarter to quarter. 

Just take a look at the 12 mines where the 13 fatalities have occurred this year. The violation histories and injury/illness records of those mines don’t stand out. You won’t find significant compliance issues or a record of injuries/illnesses. You will find that MSHA inspected the mines a minimum of two or four times a year. 

No matter, MSHA has and will continue to treat quarterly injury/illness and fatality rates/numbers as if they reliably predict or signal future rates/numbers. And, MSHA has and will continue respond with more enforcement. 

If more enforcement doesn’t produce the desired result, then more wasn’t enough. 

As they say, the beatings will continue until morale improves. 

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].

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