MSHA OIG Audit ? March 2021

MSHA OIG Audit ? March 2021

On March 31, 2021, the United States Department of Labor Office of Inspector General (“OIG”) published a 44-page report on how MSHA can improve how violations are issued, terminated, modified, and vacated. Specifically, OIG performed an audit of more than 736,000 violations, inspection reports, and supervisory reports from six districts to answer if MSHA properly managed the process it used to issue, terminate, modify, and vacate violations. The violations reviewed were issued between January 1, 2013 and September 30, 2019.

OIG found five key areas it identified as weaknesses which “jeopardize[ed] MSHA’s mission to maintain miner safety.” The five areas are as follows:

• MSHA did not timely verify operators had abated hazards.
• Violation abatement due dates were longer than necessary and varied widely and extensions were unjustified.
• Thousands of violations written by MSHA inspectors did not comply with the Mine Act and MSHA handbook requirements.
• MSHA guidance was insufficient in certain instances.
• Supervisory reports were incomplete and inaccurate.

As a result of these deficiencies, OIG identified four negative effects: (1) miners being potentially exposed to hazards longer than necessary; (2) violations having to be modified or vacated; (3) violations being challenged in court because of errors; and (4) some penalty assessments were likely calculated incorrectly. The five key areas of weakness are further explained below.

MSHA Did Not Timely Verify Operators Had Abated Hazards

Between January 1, 2013 and September 30, 2019, MSHA issued 706,007 violations which included an abatement date. During this period, 218,354 violations (or approximately 33%) were terminated after the due date. Of this amount, 52,965 were violations classified as S&S. OIG concluded that due to overdue terminations miners could be exposed to hazards longer than necessary and, therefore, have their safety jeopardized.

In a related issue, OIG found MSHA did not consistently issued Section 104(b) failure to abate orders to operators who failed to abate a hazard listed in a previous violation. Specifically, MSHA issued over 3,500 orders during a time when more than 50,000 violations were overdue by seven or more days. When MSHA did issue a Section 104(b) order, 2,710 of the more than 3,500 were issued after the original violation’s due date. OIG did concede that MSHA’s use and untimely issuance of Section 104(b) orders generally occurred because MSHA inspectors did not return to the mines by the due date to confirm whether hazards were abated. OIG did find, however, that MSHA inspectors do not have to return to a mine to abate a violation as MSHA’s Citation and Order Writing Handbook permits inspectors to terminate records violations without an on-site inspection.

In summary, OIG found Section 104(b) orders “provide a powerful incentive for mine operators to abate hazards.”

Violation Abatement Due Dates Were Longer Than Necessary and Varied Widely and Extensions Were Unjustified

OIG noted Section 104(a) of the Mine Act requires a “reasonable” time given to operators to abate a violation. While MSHA guidance does not define “reasonable” but instead informs inspectors to give primary consideration to the health and safety or miners when setting due dates for violations. OIG found more than 39,000 violations terminated earlier than the due date – of which 14% were terminated at least 7 days early.

OIG identified two factors: (1) insufficient supervisory reviews; and (2) lack of system controls to ensure due dates fell with a “reasonable” range as opposed to being longer than necessary. If these practices are not corrected, miners could be exposed to hazards longer than necessary.

While it was somewhat impossible for OIG to analyze a wide-reaching sample of variances in due dates for the same standard OIG did perform a judgmental analysis of two standards. First, 30 C.F.R. Section 56.15001 (first aid materials) found inspectors giving due dates ranging from 0 days to 365 days. For another standard, 30 C.F.R. Section 56.9300(a) (berms and guardrails), the shortest due date was 0 days with the longest date 312 days. OIG did note that variances exist because of justifiable reasons and may vary from one mine to another. That being said, OIG’s findings indicated inspectors did not follow MSHA guidance and MSHA had not developed sufficient tools to combat inconsistency in due dates, such as a system control to evaluate reasonableness of due dates for each type of hazard. If this practice is not corrected, OIG believes miners could be exposed to hazards longer than necessary.

Next, OIG identified over 190 cases where inspectors extended due dates either for MSHA’s conveniences (e.g., inspector unable to return to a mine on a timely basis) or for reasons that did not appear reasonable (e.g., extending even though operator said it had already abated the hazard). According to OIG, unjustified extensions put miners at risk of being exposed to hazards longer than necessary because operators were allowed a longer time than necessary to fix the hazard.

Thousands of Violations Written by MSHA Inspectors Did Not Comply with the Mine Act and MSHA Handbook Requirements

OIG noted MSHA developed the Citation and Order Writing Handbook for its inspectors to follow in order to issues violations that comply with the Mine Act. Furthermore, MSHA trained its inspectors on the Handbook requirements and implemented supervisory oversight controls to help ensure violations complied with the Handbook and the Mine Act. Despite these controls, OIG found thousands of errors such as:

• More than 3,000 violations lacked required phrases for specific violation types, while more than 750 additional violations included modified phrases that only partially addressed the required phrase’s intent;
• More than 1,000 violations did not discuss key aspects (e.g., when and to whom) or oral orders issued by inspectors to mine personnel upon seeing an imminent danger;
• More than 2,000 violations had improperly completed “Area of Equipment” entries where inspectors listed the specific area of the mine or piece of equipment from which miners were to be withdrawn;
• 606 violations had the “Area or Equipment” entry left blank when the inspector initially issued the violation to the operator;
• 81 violations incorrectly cited regulations or Mine Act sections;
• More than 300 violations no longer complied with the Mine Act or MSHA Handbook requirements after they were modified due to settlements or court decisions; and
• More than 900 violations that had to be issued in a certain order and had to refer to a specific prior violation likely were not issued in the correct order or did not correctly reference prior violations.

According to OIG, these types of errors can lead to the wrong part of the mine being shut down or, worse yet, no part of the mine being shut down if the inspector incorrectly lists “No area affected.”

OIG reviewed 12,278 vacated violations issued between January 1, 2013 and September 30, 2019. Of these, more than 20% had either vague reasons listed or no reasons listed at all. OIG believes that a specific reason – other than “a violation was issued in error” – would help MSHA identify weak areas that should be addressed by providing more training to inspectors on how to write certain types of violations.

MSHA Guidance was Insufficient in Certain Instances

OIG found MSHA guidance did not sufficiently address recording of violations in its Centralized Application System (“MCAS”) so that other MSHA personnel can view the violations. Specifically, OIG found 81% of violations issued between January 1, 2013 and September 30, 2019 were not uploaded into MCAS until days after the inspectors issued them. Unless inspectors upload violations into MCAS in a timely manner, other inspectors cannot view them and terminate them. Moreover, the failure to upload violations in a timely manner may inhibit an inspector from properly terminating a violation, could prevent an inspector from issuing violations in a specific order, and can lead to inspectors issuing the wrong violation or a duplicate violation for the same hazard.

Next, OIG found MSHA’s guidance was not clear regarding when inspectors could issue multiple safeguards for a single mine. OIG found 265 mines with multiple safeguards citing the same regulation (30 C.F.R. Section 75.1403) and, based on the limited guidance, some of the safeguards should have been issued as citations. As a result, some mine operators avoided civil monetary penalties because multiple safeguards were issued instead of citations.

Supervisory Reports were Incomplete and Inaccurate

OIG reviewed supervisory checklists in three coal and three metal/nonmetal districts. MSHA designed these checklists for supervisors to review work performed by inspectors. Thereafter, the Assistant District Manager is supposed to provide a second-level review of the inspector’s work and review the supervisor’s skills. Of 414 report samples, 197 reports were incomplete or missing information. According to OIG, when checklists are not used properly, the quality of inspections and violations can suffer and affect miner safety.

Summary and Conclusions

As a result of the audit, OIG provided ten recommendations to MSHA. MSHA then responded to each recommendation:

• Provide refresher training to inspectors and supervisors on complying with MSHA guidance for each violation type. MSHA Response: MSHA agrees with the spirit of this recommendation, as demonstrated by the fact we provide 35 hours of citation and order writing training for entry level inspectors and a refresher citation and order writing review course for journeyman training. Additionally, the Agency provides citation and order writing review training for field office supervisors. MSHA will review how it may use its current training courses, if necessary, to provide additional guidance to inspectors or supervisors.
   
• Provide training on how to determine the subsequent inspection when multiple inspections overlap, enter violations into the system in the same chronological order identified, be specific when writing the “Area or Equipment” entry, and when it is appropriate to list “No area affected” for an order. MSHA Response: MSHA will address this recommendation, as necessary, in its existing journeyman and entry level inspector training programs.
  ?
• Update system controls to improve compliance of MSHA violations with the Mine Act and MSHA guidance in the following instances:
  • Verify only authorized violation types used;
  • Include all required phrases automatically in the “Condition or Practice” entry when the inspector selects 103(a) citations,^[1] 104(g)(1) orders, 104(e)1/104(e)(2) orders, or 107(a) orders;
  • Ensure 104(d) orders and 104(g)(1) orders cite eligible CFR sections;
  • Verify the correlations between the CFR or Mine Act sections of 104(b) orders and the original violation;
  • Verify 104(d)(1) orders, 104(d)(2) orders, 104(e)(1) orders, and 104(e)(2) orders reference the correct “initial action” by including additional crucial attributes in the system controls, such as issue date, event number, and event start date;
  • Verify orders have the “Area or Equipment” entry populated when initially issuing the violation;
  • Apply system controls to modifications done directly in MCAS, such as modifications due to court decisions or settlements;
  • Identify modifications needed to other violations when vacating or modifying a violation;
  • Very the reasonableness of the due dates and provide warnings to inspectors when due dates appear longer than necessary; and
  • Provide a warning message to inspectors when trying to issue a safeguard at a mine that would lead to multiple safeguards citing the same regulation issued for a single mine.

• MSHA Response: MSHA will review the recommended modifications and impacts to data reporting to determine what, if any, systems controls are necessary. However, MSHA cannot agree to the recommendation as written because it contains incorrect references to certain regulatory requirements (e.g., recommendation 3e. – 104(e) addresses issuance of a notice and is not a violation).

• Update the Citation and Order Writing Handbook to clarify situations when multiple safeguards can be issued for a single mine and to correct any examples that do not comply with the instructions listed in the Handbook. MSHA Response: MSHA agrees with the spirit of the recommendation but does not intend to update the text of the Citation and Order Writing handbook. MSHA has already addressed this issue to ensure compliance with the Mine Act, and the Agency has instructed inspectors to issue safeguards under the specific criteria in the standard. We will review whether additional examples need to be included in the handbook.
   
• Improve the violations termination process by decreasing the percentage of future overdue terminations, improving the use of 104(b) orders, and not allowing due dates to be extended unless for specific, justified reasons listed on the violation form. MSHA Response: MSHA disagrees with the OIG’s use of “abate” and “terminate” as synonyms in this report and disagrees with the OIG’s conclusions, which lead to this recommendation. MSHA will assure the topic of citation/order termination is covered in journeyman and entry level inspector training.
   
• Provide training on how to write specific supporting reasons on the violation forms or other documentation (e.g., vacate memos) when extending, modifying, or vacating citations. MSHA Response: MSHA will assure this recommendation is addressed in existing journeyman training and entry level inspector training.
   
• Develop a metric to measure performance and an internal control to verify timely uploading of violations from the inspector’s laptop/tablet into MCAS. MSHA Response: MSHA believes the spirit of this recommendation is already addressed. MSHA’s Inspector Application System (IAS) has a built-in control mechanism to determine when violations transmitted for upload have not occurred and will automatically resend on the next upload action. Additionally, the inspectors and MCAS maintain transaction logs that show the status of individual uploads and can be used to address this recommendation. MSHA will use this information along with measuring the average time to upload violations to ensure the Agency is trending in the right direction. MSHA will continue to review Agency data to determine if there are outliers and address appropriately, as necessary.
   
• Complete periodic reviews to determine whether MSHA personnel are meeting the timely upload and recording of violations in MCAS, terminating violations by the due date, and effectively using 104(b) orders. MSHA Response: MSHA agrees with the spirit of this recommendation. Since Recommendation 7 captures the substance of this Recommendation, please see response to Recommendation 7.
   
• Simplify the design of the supervisory checklists by revising compound questions into simple questions answerable by a single response (yes, no, or not applicable) and provide refresher training on the quantity completion requirements, how to properly complete and review the checklist, and the importance of providing feedback using the checklist. MSHA Response: The Mine Safety and Health Enforcement Supervisors Handbook was updated in December 2020. The updates to the handbook also included revisions to the checklists that addressed the OIG’s concerns. This recommendation should be closed. See attached.
   
• Work with the Solicitor’s Office and the Federal Mine Safety and Health Review Commission to implement a process to ensure violations listed in settlement agreements or court decisions still comply with the Mine Act and Mathies test. MSHA Response: MSHA agrees with the importance of this recommendation and ensuring violations listed in settlement agreements comply with the Mine Act, and Commission decisions accurately reflect the outcome of the contest proceeding. Further discussions, however, will be needed to determine what, if any, changes are necessary to address this recommendation.

If you have MSHA or OSHA related questions, please feel free to reach out to your Fennemore attorney for assistance.

[1] OIG specifically referenced 103(a) citations in the audit report. We believe this actually references 104(a) citations and the reference to 103(a) citations was a typo.