oversight

MSHA Can Improve How Violations Are Issued, Terminated, Modified, and Vacated

Published by the Department of Labor, Office of Inspector General on 2021-03-31.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

REPORT TO THE MINE SAFETY
AND HEALTH ADMINISTRATION




  MSHA CAN IMPROVE HOW
  VIOLATIONS ARE ISSUED,
  TERMINATED, MODIFIED, AND
  VACATED




                   DATE ISSUED: MARCH 31, 2021
                REPORT NUMBER: 05-21-002-06-001
U.S. Department of Labor                             WHAT OIG FOUND
Office of Inspector General                          MSHA did not properly manage the process it
Audit                                                used to issue, terminate, modify, and vacate
                                                     violations. Various areas of MSHA’s violations
                                                     process had significant weaknesses,
                                                     jeopardizing MSHA’s mission to maintain miner
BRIEFLY…                                             safety.

                                                     MSHA did not timely verify operators had
MSHA CAN IMPROVE HOW VIOLATIONS                      abated hazards. For more than 215,000
ARE ISSUED, TERMINATED, MODIFIED,                    violations out of the 706,000 we reviewed,
AND VACATED                                          MSHA had not verified that operators corrected
                                                     hazards until after their required due date. Not
March 31, 2021                                       verifying that operators have abated hazards by
                                                     the due date unnecessarily jeopardized miner
WHY OIG CONDUCTED THE AUDIT                          safety.
Mine Safety and Health Administration’s
                                                     Violation abatement due dates were longer
(MSHA) inspects mines to ensure they are safe
                                                     than necessary and varied widely, and
for miners. The Federal Mine Safety and Health
                                                     extensions were unjustified. These lengthy
Act (Mine Act) gives MSHA the authority to
                                                     hazard abatement periods can expose miners
issue notices, safeguards, citations, and orders
                                                     to hazards longer than necessary and affect
(“violations” is the blanket term used by MSHA)
                                                     penalty assessments for operators.
to mine operators who do not comply with the
health and safety standards or the Mine Act.         Thousands of violations written by MSHA
                                                     inspectors did not comply with the Mine Act
A violations process should include clear
                                                     and MSHA Handbook requirements. Despite
guidance, appropriate internal controls, and a
                                                     MSHA’s previous efforts to implement internal
strong monitoring system to ensure the process
                                                     controls, controls meant to maintain compliance
meets its goals. Incorrectly written violations or
                                                     were missing or not working as intended. This
untimely verification by MSHA inspectors that
                                                     lack of controls resulted in thousands of issued
operators abated hazards by the due dates can
                                                     and modified violations that did not comply with
result in miners’ unnecessarily continued
                                                     Handbook requirements and the Mine Act.
exposure to hazards. Moreover, incorrectly
                                                     Errors make violations subject to court
written violations can result in court challenges.
                                                     challenges and inaccurate penalty assessments
WHAT OIG DID                                         and can jeopardize miner safety.
Given these risks, we performed an audit to          MSHA guidance was insufficient in certain
determine the following:                             instances. Specifically, MSHA had not issued
                                                     sufficient guidance on timely recording of
       Did MSHA properly manage the                  violations in MSHA Centralized Application
       process it used to issue,                     System (MCAS) or guidance involving issuing
       terminate, modify, and vacate                 multiple safeguards at a single mine. The
       violations?                                   insufficient guidance affected MSHA’s ability to
                                                     terminate violations and can lead to incorrect
We analyzed more than 736,000 violations,            violation types, duplicate violations, and
reviewed inspection reports, and reviewed            avoidance of penalties.
supervisory reports from six districts that we
judgmentally selected.                               WHAT OIG RECOMMENDED
                                                     We made 10 recommendations focused on
READ THE FULL REPORT                                 improving the violations process in this report.
http://www.oig.dol.gov/public/reports/oa/2021/0      MSHA generally agreed with all our
5-21-002-06-001.pdf                                  recommendations.
                                            U.S. Department of Labor – Office of Inspector General


                                      TABLE OF CONTENTS



INSPECTOR GENERAL’S REPORT .................................................................... 1

RESULTS ............................................................................................................. 2

         MSHA Did Not Timely Verify Operators Had Abated Hazards ................... 3

         Violation Abatement Due Dates Were Longer Than Necessary and
         Widely Varied, and Extensions Were Unjustified ....................................... 6

         Thousands of Violations Did Not Comply with Mine Act and MSHA
         Handbook Requirements.......................................................................... 11

         MSHA Guidance Was Insufficient in Certain Instances ............................ 16

         Supervisory Reports Were Incomplete and Inaccurate ............................ 18

OIG’S RECOMMENDATIONS ............................................................................ 20

         Summary of MSHA’s Response ............................................................... 22

EXHIBIT 1: EXAMPLE OF MSHA VIOLATION FORM ....................................... 23

EXHIBIT 2: EXTRACTS FROM MSHA INTERNAL REVIEWS ........................... 24

EXHIBIT 3: MINE ACT AUTHORITY FOR VIOLATIONS ................................... 30

APPENDIX A: SCOPE, METHODOLOGY, & CRITERIA .................................... 32

APPENDIX B: AGENCY’S RESPONSE TO THE REPORT ............................... 35

APPENDIX C: ACKNOWLEDGEMENTS ........................................................... 40




                                                         -i-
U.S. Department of Labor           Office of Inspector General
                                   Washington, D.C. 20210




                      INSPECTOR GENERAL’S REPORT




Jeannette J. Galanis
Deputy Assistant Secretary
 for Mine Safety and Health
201 12th Street South
Arlington, VA 22202

One of MSHA's essential roles is inspecting mines to ensure they are safe for
miners. During these inspections, the Mine Act gives MSHA the authority to issue
notices, safeguards, citations, and orders (“violations,” is the blanket term used
by MSHA) to mine operators who do not comply with the health and safety
standards or the Mine Act (see Exhibit 3). This report presents the results of our
audit of MSHA’s internal controls over its processes to issue, terminate, modify,
and vacate violations.

The violations process should include clear guidance, appropriate internal
controls, and a strong monitoring system to ensure the violations process meets
its goal of safeguarding miners. For example, MSHA inspectors issuing violations
incorrectly or performing untimely verification of abated hazards by required due
dates can result in miners’ unnecessary continued exposure to work hazards.
Moreover, MSHA inspectors issuing incorrectly written violations can result in
court challenges.

Given these risks, we performed an audit to determine the following:

      Did MSHA properly manage the process it used to issue, terminate,
      modify, and vacate violations?

We determined 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

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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.

To answer our audit question, we interviewed MSHA personnel, performed data
analytics on MSHA Centralized Application System (MCAS) data for more than
736,000 violations issued between January 1, 2013 and September 30, 2019,
reviewed inspection reports or system reports for select violations, and reviewed
supervisory reports from six districts we judgmentally selected.


                                   RESULTS


MSHA helps save miners lives and makes their working environments safer by
issuing violations to mine operators for hazards requiring abatement. However,
MSHA did not properly manage the process it used to issue, terminate, modify,
and vacate violations. Various areas of MSHA’s violations process had significant
weaknesses:

   •   MSHA did not timely verify whether operators had abated hazards;
   •   Violation abatement due dates were longer than necessary and varied
       widely and extensions were unjustified;
   •   Thousands of violations did not comply with MSHA Handbook
       requirements and with the Mine Act itself;
   •   MSHA’s guidance was insufficient in certain instances, specifically:
          o for recording of violations in MCAS and
          o for issuing multiple safeguards at a single mine; and
   •   Supervisory reports were incomplete and inaccurate.

These weaknesses were long-standing. MSHA had identified similar control
weaknesses during its own reviews conducted from 2003 through 2012 of
previous accident investigations at mines such as No. 5 Mine, Aracoma Alma #1
Mine, Darby Mine No. 1, Sago Mine, and Upper Big Branch Mine South.
Although the inability of operators to comply with safety standards caused these
mining accidents and miner deaths, deficiencies existed in MSHA’s violations
process similar to the challenges discussed in this report. Many of these accident
investigations made recommendations to address the same or similar issues as
those we cite in this report. Addressing and improving these deficiencies would
help MSHA in its mission to safeguard miners.

These weaknesses in the violations process affected MSHA’s mission to
preserve miners’ safety. The effects include (1) miners were potentially exposed

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to hazards longer than necessary, (2) violations had to be modified or vacated,
(3) violations were challenged in court because of errors, and (4) some penalty
assessments were likely calculated incorrectly.

MSHA DID NOT TIMELY VERIFY OPERATORS
HAD ABATED HAZARDS


MSHA’s process for verifying mine operators abated mining hazards on a timely
basis had weaknesses. These weaknesses included not terminating violations by
their due date and not issuing 104(b) orders in a consistent or timely manner.
MSHA jeopardized miner safety by not verifying that mine operators abated
hazards by required due dates.

NEARLY ONE-THIRD OF VIOLATIONS NOT
TERMINATED BY REQUIRED DUE DATE

It is critical that mine operators abate hazards identified in violations by the
required due date because of the danger posed to the health and safety of
miners from the hazards. Moreover, it is prudent for MSHA to have inspectors
confirm that operators have corrected a hazard by the due date. Once an
inspector confirms that a hazard has been abated, the violation is described as
“terminated.” When a violation has gone past the due date without being
terminated, the violation is termed “overdue.”

Citations and safeguards are the two types of violations for which inspectors
include an abatement due date to the operator. Therefore, we compared due
dates to MSHA’s termination dates for the 706,007 citations and safeguards
issued from January 1, 2013, to September 30, 2019, and we found inspectors
terminated almost a third of the 706,007 violations we reviewed (218,354) after
the due date, the longest reaching 1,014 days after the due date (see Table 1).

    TABLE 1: OVERDUE TERMINATIONS BY AGE

                                   Days Overdue
       1-13     14-29   30-89    90-179     180-364   365-729   730+      Total

     199,802   17,685    761       70           22      10        4     218,354

To show how much risk these overdue terminations posed to miners, we
analyzed the population for severity of harm. Hazards present varying degrees of


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risk, such that some hazards are more likely to cause illness, injury, or death
than others. For example, an improperly supported mine roof can cause serious
injuries and even death to miners in the event of a roof collapse. On the other
hand, a late-filed employment production report is unlikely to have serious
consequences to the safety or health of miners. As a result, violations having a
“reasonable likelihood of resulting in an illness or injury of a reasonably serious
nature” are labeled as “significant and substantial” (S&S) on the violation form.
We found that mine inspectors deemed almost a quarter of the violations with
overdue terminations as “S&S” citations (see Table 2). Overdue termination of
these violations poses a high risk of harm to miners.


 TABLE 2: S&S OVERDUE TERMINATIONS BY AGE
                                         Days Overdue
                                            90-    180-      365-
               1-13      14-29     30-89                             730+      Total
                                            179     364      729
    S&S       48,399     4,362      178         12    6       5        3      52,965

  Non-S&S     150,591   13,281      578         55   14       5        0      164,524

 Safeguards     812       42         5          3     2       0        1       865

Challenges with inspectors’ overdue termination of violations have been a long-
standing issue. MSHA’s own accident investigations conducted between 2003
and 2012 found that inspectors did not return to mines by the termination due
dates to determine if hazards had, in fact, been abated in a timely manner. See
Exhibit 2 for extracts from MSHA’s own accident investigations related to not
terminating violations by the due date.

These overdue terminations generally occurred because inspectors did not return
to the mines by the due date to confirm the abatement of hazards, as they are
responsible for inspecting multiple mines in a large geographic area. In 2018,
MSHA was working on improving inspectors’ access to mines through its
“blurring” initiative project to cut down on time spent traveling. The methods we
used to analyze MSHA’s performance with terminating violations did not show
improvements yet from this initiative with the problem of overdue terminations.
However, we acknowledge any reductions in traveling time from the “blurring”
initiative can help MSHA decrease its percentage of untimely terminations.

Due to overdue terminations, miners could be exposed to hazards longer than
necessary and, therefore, have their safety jeopardized.



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MSHA DID NOT ISSUE 104(B) ORDERS IN A
CONSISTENT OR TIMELY MANNER

In addition to requiring violations be abated by a certain required date, MSHA
inspectors have another tool to help ensure mine operators abate hazards. If
“upon any follow-up inspection,” MSHA finds a violation has reached its due date,
and the mine operator has not yet abated the hazard, the Mine Act requires
inspectors either to extend the due date or issue a 104(b) order for failure to
abate a hazard listed in a previous violation. We found, however, that MSHA did
not consistently issue 104(b) orders. For example, MSHA issued over 3,500
orders during a time when more than 50,000 violations were overdue by seven or
more days. As noted, with two options when violations reach their due date, we
would have expected to see MSHA issue a higher number of 104(b) orders.

Moreover, when MSHA
did issue 104(b) orders,       TABLE 3: DAYS BETWEEN VIOLATION DUE DATE AND
those orders were                                 104(B) ORDER
untimely. Of the more            1-6        7-13  14-29 30-89 90-179        180+
than 3,500 orders
issued, we found MSHA           1,313       501    808      83     4          1
issued 2,710 orders after
the original violation’s due date. In fact, MSHA issued 40 percent of those seven
or more days late, and MSHA issued one order almost a year later (see Table 3).
It is prudent for MSHA to issue 104(b) orders on or very near the due date.

MSHA’s inconsistent use and untimely issuance of 104(b) orders generally
occurred because inspectors did not return to the mines by the due date to
confirm whether hazards were abated. Even though inspectors often have large
geographic territories to cover, making it difficult to return to every mine to verify
hazard abatement, MSHA inspectors can issue some 104(b) orders without
visiting a mine. For example, MSHA’s Citation and Order Writing Handbook for
Coal Mines and Metal and Nonmetal Mines (commonly known as the “Citation
and Order Writing Handbook”) says inspectors can terminate violations relating
to certain records without an on-site inspection. This means inspectors can make
the decision to issue a 104(b) order from the MSHA office for violations relating
to certain records, such as operators not submitting MSHA form 7000-1 “Mine
Accident, Injury and Illness Report” or MSHA 7000-2 “Quarterly Mine
Employment and Coal Production Report.” MSHA, during accident investigations
conducted from 2003 through 2012, also found problems in the use of 104(b)
orders. For example, MSHA’s team found inspectors did not return to a mine by
the due date to be able to determine whether issuing a 104(b) order was justified.
See Exhibit 2 for extracts related to inconsistent use of 104(b) orders.



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Ultimately, inspectors issuing late 104(b) orders or, in some cases, not issuing
them at all, allow hazards to remain unabated longer than necessary. The longer
hazards remain unabated, the longer they expose miners to health and safety
risks. In contrast, these 104(b) orders provide a powerful incentive for mine
operators to abate hazards. For example, one of MSHA’s accident investigations
found a hazard that had been overdue for five days was corrected within three
hours after the inspector issued a 104(b) order. At the same time, not making a
timely decision to extend the due date or issue a 104(b) order affects the fines
that mines have to pay for unabated hazards. Inaccurate reflection of due dates
can affect the calculation of fines because mines receive a discount on penalties
for on-time hazard abatement, and, conversely, receive daily fines for unabated
hazards.

VIOLATION ABATEMENT DUE DATES WERE
LONGER THAN NECESSARY AND WIDELY
VARIED, AND EXTENSIONS WERE
UNJUSTIFIED


Inspectors allowed operators due dates longer than necessary when issuing
violations, and the time inspectors allowed mines to abate similar hazards varied
widely. Moreover, inspectors did not properly justify extensions of time they
provided to mines. These issues can expose miners to hazards longer than
necessary and affect two aspects of penalty assessments for operators.

MSHA’s Citation and Order Writing Handbook instructs inspectors to give primary
consideration to the health and safety of miners in establishing due dates. The
date must be specific and provide a reasonable time for mine operators to abate
the hazard. It also states not to establish due dates for the convenience of the
mine operator or the inspector, or because the operator has filed a court
challenge or a petition for modification.

We analyzed due dates for citations and safeguards 1 issued between January 1,
2013 and September 30, 2019. Our initial assumption was that inspectors would
set relatively consistent and reasonable due dates for violations related to the
same hazard, and any due dates outside the normal range would have a specific
and justified reason for an extension listed on the violation form. Our analysis,
however, showed that inspectors were not following MSHA’s Handbook guidance
by giving due dates longer than necessary, having wide variances in due dates


1
  Citations and safeguards are the only types of violations for which due dates are assigned.
Other violations, such as orders, are not subject to a due date and take effect immediately.


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for similar hazards, and not providing sufficient justifications for extensions of due
dates.

DUE DATES LONGER THAN NECESSARY

Section 104(a) of the Mine Act requires a “reasonable” time be given for
abatement of the violation. This means not too little time, but also not too much
time. MSHA guidance does not define “reasonable,” but requires that inspectors
should give primary consideration to the health and safety of miners when setting
due dates for violations.

Early terminations indicate due dates were longer than necessary and that the
inspectors could have set earlier due dates. To verify that inspectors were not
allowing too much time, we did a trend analysis on the more than 39,000
violations terminated earlier than their due date. Our analysis found more than
5,600 violations (14 percent) terminated at least 7 days early, of which more than
1,100 violations (20 percent) were deemed S&S.

We found the following examples of due dates set longer than necessary:

       •   For seat belts not locking in place on a truck, the inspector allowed a
           due date of 1,097 days. The violation was terminated 2 days later,
           1,095 days before the due date;
       •   For operating a grinder with the guard removed, the inspector allowed
           a due date of 1,095 days. The violation was terminated 3 days later,
           1,092 days before the due date;
       •   For brake lights not working on a loader, the inspector allowed a due
           date of 731 days. The violation was terminated the same day the
           violation was issued, 731 days before the due date;
       •   For a low air reading not complying with the operator’s methane dust
           control plan, the inspector allowed a due date of 365 days. The
           violation was terminated the same day it was issued, 365 days before
           the due date. The inspector appeared to have typed the wrong year
           into the system; and
       •   For a miner not wearing fall protection while working eight feet high on
           a loader, the inspector allowed a due date of 365 days. The violation
           was terminated the same day it was issued, 365 days before the due
           date. In this case also, the inspector appeared to have typed the wrong
           year into the system.

To their credit, mine operators in these instances abated the hazards before they
were required to do so. However, not all mine operators may be as diligent.



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Challenges with inspectors providing due dates longer than necessary has been
a long-standing issue. MSHA’s own accident investigations conducted between
2003 and 2012 also found inspectors allowed due dates longer than necessary
for abatement of hazards. See Exhibit 2 for extracts from accident investigations.

These due dates being longer than necessary occurred because of two factors:
insufficient supervisory reviews and lack of system controls to ensure due dates
fell within a “reasonable” range as opposed to being longer than necessary.

This practice, if not corrected, could lead to miners being exposed to hazards
longer than necessary and could affect two aspects of penalty assessments, as
fines to mine operators are based on meeting due dates for abating hazards.

MSHA believes the rollout of tablets for inspectors in 2018 helped MSHA improve
in this area. Supporting this assertion, our analysis indicated the longest due date
in 2018 and the longest in the first nine months of 2019 were both shorter than
had been in prior years. Such a trend is a step in right direction in gaining control
over the problem of due dates longer than necessary.

WIDE VARIANCES IN DUE DATES

Section 104(a) of the Mine Act requires a “reasonable” time be given for
abatement of the violation. MSHA guidance does not define “reasonable,” but
requires that inspectors should give primary consideration to the health and
safety of miners when setting due dates for violations. The challenge for
inspectors is there are many different types of hazards for which they are trying
to determine “reasonable” lengths of time. We found inconsistencies in the length
of time allowed as due dates for violations of the same hazard. Widely varying
due dates were allowed for the same hazard at different times. We analyzed a
judgmental sample of violations to determine the consistency of due dates;
overall, we found inconsistencies. For example, our analysis of the 1,532
violations related to the provision of first aid materials (CFR 56.15001) found
inspectors provided due dates ranging from a low of zero days to a high of 365
days. To measure the variability within the data, we computed its standard
deviation, how far from the mean (average) most of the data resides in a tested
population. The higher the standard deviation, the more variability in the
underlying data. Violations for this particular hazard had a standard deviation of
14 indicating highly variable data (see Figure 1 for a scatter chart of due dates
from violations for this type of hazard).




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                                             FIGURE 1: PROVISION OF FIRST AID MATERIALS
                                   400
                                   350
          Due Date Length (Days)   300
                                   250
                                   200
                                   150
                                   100
                                   50
                                    0
                                         0      200      400       600         800    1000      1200   1400
                                                            Count of Violations Issued
                                                Each dot represents the due date for one violation.


Violations related to berms and guardrails (CFR 56.9300(a)) exhibited similar
variability: the shortest due date was zero days and the longest 312 days, with a
standard deviation of 8. See Figure 2 for a selection of hazards with wide ranges
between the minimum and maximum due dates given to operators.




We understand inspectors need to be able to consider the circumstances at a
mine each time they set a due date. For example, one mine may have on-site
capabilities to correct its hazard immediately whereas another mine may have to
bring someone from outside the mine or purchase materials to correct its hazard.



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Therefore, variances can occur because of justified reasons. However, many of
MSHA’s wide variances occurred without justifiable reasons.

Our findings indicate wide variability in the due dates given because inspectors
did not follow MSHA guidance, and MSHA has 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.

Inconsistency in due dates as a practice, if not corrected, could lead to miners
being exposed to hazards longer than necessary and could affect two aspects of
penalty assessments, as fines to mine operators are based on meeting due
dates for abating hazards.

Using historical information, MSHA could develop a system control of expected
ranges of due dates for each type of hazard to inform inspectors. This would be
very useful for newer inspectors or for hazards not often seen by experienced
inspectors and would also help ensure consistency within MSHA. In addition, it
would help eliminate mistakes found in our earlier examples where inspectors
incorrectly entered the due date, for example, the wrong year. Overall, this would
improve overall miner safety by ensuring inspectors are providing more
consistent due date lengths that consider the health and safety of the miners first.

UNJUSTIFIED EXTENSIONS OF DUE DATES

MSHA’s Citation and Order Writing Handbook states not to establish due dates
for the convenience of the mine operator or the inspector, or because the
operator has filed a court challenge or a petition for modification. However, we
found inspectors did not follow this guidance.

We identified over 190 cases in which inspectors were extending due dates
either for MSHA’s convenience--where, for example, inspectors were 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 hazard), at least
as stated on the form. Some examples we found include the following:

   •    “This extension is to allow an inspector to verify the abatement of the
       hazard.”
   •    “This citation is extended to allow time for an MSHA representative to
       return to the isolated mine to verify the equipment removal from the mine
       site for termination.”
   •    “Operator has stated that the condition has been corrected, this citation is
       hereby extended.”
   •   “Additional time is required to terminate this citation. Therefore, this
       citation is extended.”


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These reasons were used to extend due dates up to 182 days beyond the
original required due date. Extending violations without proper justification is a
long-standing issue. MSHA’s own accident investigations conducted between
2003 and 2012 also found inspectors provided unjustified extensions to
operators. See Exhibit 2 for extracts from these accident investigations.

A proper justification for an extension would be a situation where the operator
ordered materials to fix the hazard, but, on the due date, the materials had not
yet arrived thus delaying hazard abatement. In this case, an extension would be
justified to allow more time for the operator to receive the material and fix the
hazard. In contrast to proper justifications, the unjustified extensions we found
included inspectors extending due dates for MSHA’s benefit (e.g., helping MSHA
terminate violations by the due date) rather than an operator’s need.

The unjustified extension issue occurred because inspectors were not following
MSHA guidance since they can be held accountable for late terminations of
violations and the accountable timeframe can vary by district. Extending a
violation can help an inspector meet performance expectations. In addition, as
shown by each violation’s history, supervisors did not correct this issue during
their reviews of the violations.

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. It can also affect two aspects of penalty assessments as fines to
mine operators are based on meeting due dates for abating hazards.

THOUSANDS OF VIOLATIONS DID NOT
COMPLY WITH MINE ACT AND MSHA
HANDBOOK REQUIREMENTS

We found thousands of violations that did not comply with MSHA's Handbook
requirements and even, in some cases, with the Mine Act itself. This included
issued and modified violations containing errors and inspectors vacating
violations without clear, specific reasons. While MSHA provides training to its
inspectors on the Handbook requirements and implemented numerous system
controls and supervisory oversight controls to enforce those requirements, we
nevertheless found internal controls either missing or not working as intended.
Noncompliant violations have various effects, such as making them subject to
court challenges, causing inaccurate penalty assessments, using unreliable
system data in decision-making, and hampering MSHA’s ability to ensure vacate
actions are justified or to identify trends that signal a need for additional training.



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ISSUED AND MODIFIED VIOLATIONS CONTAINED
ERRORS

We found thousands of violations that were either written up incorrectly or
missing required information. A single error on a violation form can force MSHA
to modify or vacate the violation. See Exhibit 1 for an example of a violation form
and the different entries where an inspector can make a mistake.

MSHA developed the Citation and Order Writing Handbook for its workforce to
follow in writing violations that comply with the Mine Act. It provides general
guidance that applies to all violation types and detailed instructions unique to
each violation type. MSHA has trained its workforce on these Handbook
requirements and has implemented supervisory oversight controls and many
system controls to help ensure violations complied with its Handbook and the
Mine Act. The various supervisory oversight controls include the following:

      •   Continuous review of inspection documents by the supervisor, which
          includes all violations issued by inspectors for each inspection;
      •   Periodic reviews by the MSHA headquarters accountability office or other
          MSHA districts of inspection documents, which include violations written
          during the inspection(s) reviewed; and
      •   Periodic reviews done by supervisors and Assistant District Managers of
          inspection documents, which include violations written during the
          inspection(s) reviewed.

Despite MSHA’s efforts, errors still existed. We analyzed more than 736,000
violations MSHA issued between January 2013 and September 2019 to identify
violations not meeting the detailed requirements for each violation type found in
MSHA’s Citations and Order Writing Handbook. Our analysis found thousands of
violations containing a variety of errors 2, including:

      •   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) of oral orders issued by inspectors to mine personnel upon seeing
          an imminent danger;
      •   More than 2,000 violations had improperly completed “Area or Equipment”
          entries where inspectors listed the specific area of the mine or piece of
          equipment from which miners were to be withdrawn;


2
    A single violation may contain multiple errors.


                                                                     MSHA VIOLATIONS
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                                    U.S. Department of Labor – Office of Inspector General


    •   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.

These errors occurred for a variety of reasons:

    •   Inspectors did not sufficiently use the Handbook when developing
        violations;
    •   Inspectors lacked additional guidance that would enable them to correctly
        determine the “subsequent inspection” when multiple inspections overlap
        and write up violations in the same order identified;
    •   Inspectors did not always document the specific location in their “Area or
        Equipment” entry and were confused as to when to list “No area affected”
        as the entry;
    •   Examples used in the Handbook itself did not follow Handbook
        requirements;
    •   When violations were modified due to settlements or court decisions,
        personnel made errors when entering the violation changes in the system.
        Some settlements or court decisions did not include additional
        modifications to those violations (e.g., changes to violation type or the
        S&S supporting rating) needed to remain in compliance with the
        Handbook or the Mine Act; 3 and
    •   Missing or improperly designed system controls.

Additionally, we found the following system controls were missing or not working
as intended in MCAS or the inspector’s mobile device:

    •   Include all required phrases automatically in the “Condition or Practice”
        entry when the inspector selects 103(a) citations, 104(g)(1) orders, 104(d)
        violations, 104(e) orders, or 107(a) orders. There was a system control to
        add the phrase for 104(d) violations, but it was not working as intended.

3
  An example is when a 104(d)(1) citation’s S&S rating was modified from “Yes” to “No.” Because
section 104(d)(1) of the Mine Act requires the citation to be S&S, this means the violation type
needed to modified from a 104(d)(1) citation to a 104(a) citation that does not require S&S to
remain in compliance with the Mine Act.


                                                                    MSHA VIOLATIONS
                                              -13-          REPORT NO. 05-21-002-06-001
                                U.S. Department of Labor – Office of Inspector General


       The system control was missing to add the phrase for the other violation
       types;
   •   Ensure 104(d) orders and 104(g)(1) orders cite eligible CFR sections. A
       system control was present to compare the CFR listed on the violation
       against the eligible CFR sections listed in the Citation and Order Writing
       Handbook for 104(d) orders and 104(g)(1) orders, but it was not working
       as intended;
   •   Verify the correlation between the CFR or Mine Act sections of 104(b)
       orders and the original violation. A system control was missing to compare
       the CFR and Mine Act entries of the 104(b) order against the CFR and
       Mine Act entries of the original violation to ensure they matched;
   •   Verify 104(d) violations and 104(e) violations reference the correct parent
       violation by including additional crucial attributes in the system controls,
       such as issue date, event number, and event start date. There was a
       system control to verify the violations were in the correct order, but the
       control did not verify the violation referenced the specific violation (first) as
       required in MSHA’s Citation and Order Writing Handbook when there were
       multiple violation choices;
   •   Verify orders have the “Area or Equipment” entry populated when initially
       issuing the violation. There was a system control to make this entry
       required for orders, but it was not working as intended;
   •   Apply system controls to modifications done directly in MCAS, such as
       modifications due to court decisions or settlements;
   •   Verify only authorized violation types were being issued. There were
       system controls to verify the violation types, but the control allowed invalid
       violation types of a 104(a) notice during initial issuance and 104(a) orders
       and a 103(k) citation through modifications; and
   •   Identify modifications needed to other violations when vacating or
       modifying a violation. A system control was missing to identify other
       violations impacted by a modification or vacated violation, such as
       referenced violations or violations written in a specific order.

There are several effects of errors in violations. Most notably, errors in
completing the “Area or Equipment” entry of an order can lead to the wrong part
of the mine being shut down. Worse yet, it can lead to no part of the mine being
shut down if the inspector incorrectly lists “No area affected.”

Importantly, errors can also make violations vulnerable to legal challenge.
MSHA’s own Handbook states, “a significant number of violations have been
overturned during the legal process” for reasons such as failure to cite the
applicable standard or correctly describe the specific area of the mine affected.
We saw this in our testing when MSHA vacated some of the 104(d) violations



                                                               MSHA VIOLATIONS
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                                U.S. Department of Labor – Office of Inspector General


citing ineligible regulations. Even if violations are not vacated, errors can also
require MSHA to spend additional effort to modify the violations.

In addition, errors can affect MSHA’s penalty assessment process. We found two
ways such errors can affect penalty assessments.

   •   Accurate citing of regulations or Mine Act sections is important because
       the criteria in MSHA’s penalty assessment includes the number of repeat
       violations of the same standard in a preceding 15-month period.
   •   For violations that must be written in a certain order, penalty assessment
       amounts increase as violations move up the order. Therefore, having the
       correct violation type is critical for MSHA to administer an accurate penalty
       assessment.

Finally, errors affect the reliability of MSHA’s data. We found violations with
invalid violation types, violations marked S&S or not S&S whose supporting
ratings did not match with those markings, and violations with incorrect
negligence or S&S markings. These inaccuracies affected MSHA’s reporting and
the public’s use of the “violations” dataset available on MSHA’s website.

INSPECTORS VACATED VIOLATIONS WITHOUT
PROVIDING CLEAR, SPECIFIC REASONS

For the 12,278 vacated violations issued between January 1, 2013, and
September 30, 2019, more than 20 percent 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.”

In the above examples, a clear, specific reason would have told the reader what
the error actually was. For example, the error could have been an incorrect mine
identification number or a wrong regulation cited. The system does not allow
MSHA to modify the mine identification number on a violation, but MSHA could
modify an incorrect regulation. Given that we heard a concern that MSHA had
improperly vacated some violations, this type of detail is important to ensure the
integrity of the process. Stating the obvious, that a violation was “issued in error,”
does not inform the reader about the actual error that occurred. Thus, there is no
way to know if the “error” was in fact an error. This omission clouds critical
accountability when vacating violations. Knowing specifically why each violation

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                                U.S. Department of Labor – Office of Inspector General


is vacated is a required part of the violation process. Requiring adherence to
specific reasoning would help MSHA identify weak areas that should be
addressed by, for example, providing more training to inspectors on how to write
up certain types of violations.

GAO’s Standards for Internal Control in the Federal Government requires federal
agencies to maintain appropriate documentation of all transactions. MSHA also
has its own internal policies that require proper documentation of transactions,
such as the following:

   •   Program Policy Manual Volume I requires personnel to state the reason
       for vacating an issuance on the violation form and
   •   The Citation and Order Writing Handbook requires personnel to state
       specific reasons for vacating an issuance on the violation form.

Vacating violations without documenting clear, specific reasons has been a long-
standing issue. MSHA's own accident investigations, conducted from 2003
through 2012, found personnel had not documented clear, specific reasons for
vacating violations. See Exhibit 2 for extracts from these accident investigations.

The lack of specificity in the reasons for vacated violations occurred because
inspectors did not follow guidance due to insufficient training and due to
insufficient supervisory review of violations. Vague or missing reasons make it
difficult if not impossible to determine if the actions taken were justified and
identify trends that signal a need for additional training. There is also the potential
that a violation is vacated prior to the listed hazard being abated, meaning the
hazard could remain unabated, unnecessarily prolonging the risk to miner safety.

MSHA GUIDANCE WAS INSUFFICIENT IN
CERTAIN INSTANCES

MSHA had not developed sufficient guidance for how timely violations should
record in MCAS or when multiple safeguards could be issued to a single mine.
The insufficient guidance affected MSHA’s ability to terminate violations and
could lead to incorrect violation types, duplicate violations for the same hazard,
and penalties avoided.

GUIDANCE WAS INSUFFICIENT FOR TIMELY
RECORDING OF VIOLATIONS IN MCAS

MSHA guidance did not sufficiently address recording of violations in MCAS even
though recording needs to occur promptly so other MSHA personnel can view


                                                              MSHA VIOLATIONS
                                          -16-        REPORT NO. 05-21-002-06-001
                               U.S. Department of Labor – Office of Inspector General


the violations. We found 81 percent of violations in MCAS issued between
January 1, 2013, and September 30, 2019, were not uploaded into MCAS until
days after inspectors issued them. A couple violations did not appear in the
MCAS system for almost two years after issuance. Table 4 shows how many
days it took for the 591,200 violations to be uploaded into MCAS after inspectors
issued the violations (“issue date”).

Inspectors
issue violations TABLE 4: DAYS LAG IN RECORDING VIOLATIONS
at the mine
using a mobile       1-6       7-13    14-29    30-89   90-179    180-359 360+
device, such as
                   545,006 38,838 5,397         1,507     200       223    29
a laptop or
tablet.
Inspectors upload the violation data from their mobile device to MCAS where the
rest of MSHA personnel can view them or download the violation data to their
mobile device.

MSHA’s guidance was not sufficient because MSHA had not developed a metric
for how long it should take violations to appear in MCAS or developed an internal
control to verify violations appear in MCAS in a timely manner. Implementing a
metric should also help MSHA oversee how personnel are correcting violations in
its “status list” report. The report lists violations where the system identified a
problem with the violation. Our review of a status list from 2018 showed 34 pages
of violations with issues that still needed to be addressed, dating back as far as
2006. Even if the inspector uploaded the violation on time, it will not record in
MCAS until someone corrects the problem with the violation.

Unless inspectors upload violations into MCAS in a timely manner, other
inspectors cannot view them and terminate them. This can affect miner safety
because the operator may not have fully abated the hazard, but this is not known
until an inspector checks the corrective actions taken. This can only happen if an
inspector knows the violation exists. Moreover, since multiple inspectors may
visit the same mine, they must be able to see previously issued violations that
may inform their inspections, such as when violations need to be written in a
specific order. This can lead to issuing the wrong violation type or a duplicate
violation for the same hazard, which we saw as reasons in our analysis for why
MSHA vacated violations.

In 2018, MSHA deployed tablets to inspectors that changed how inspectors
upload violations. MSHA personnel believe this will help improve timely recording
of violations in MCAS. Because we still saw issues with timely recording of
violations in MCAS after this change, it shows there is still improvement needed
in this area (e.g., connectivity) along with better management of the status list.


                                                            MSHA VIOLATIONS
                                        -17-        REPORT NO. 05-21-002-06-001
                               U.S. Department of Labor – Office of Inspector General


GUIDANCE WAS UNCLEAR REGARDING MULTIPLE
SAFEGUARDS ISSUED PER MINE

MSHA’s guidance was not clear regarding situations when inspectors could issue
multiple safeguards for a single mine. Section 314(b) of the Mine Act allows
MSHA to issue safeguards to minimize hazards with transportation of people and
materials. However, MSHA’s Citation and Order Writing Handbook states “[w]hen
an inspector identifies a hazard specific to the mine and similar to those already
identified in 30 CFR, Subpart O, Sections 75.1403-2 through 75.1403-11, he/she
will issue a notice to provide safeguards to the mine operator if one has not been
previously issued” (emphasis added). Using the Handbook guidance verbatim,
we analyzed all safeguards issued between January 1, 2013, and September 30,
2019 to identify mines where MSHA issued more than one safeguard. Our
analysis found 265 mines with multiple safeguards citing the same regulation
(75.1403). Based on the limited guidance, we concluded some of these
safeguards likely should have been citations rather than safeguards.

MSHA’s guidance was not clear because it did not address if any situations
existed where multiple safeguards could be issued for a single mine. For
instance, the Handbook does not address situations such as the same hazard in
different parts of the mine, different types of hazards that may be applicable
under a single regulation, or if a timeframe applies. As a result, operators likely
received the wrong violation type and avoided monetary penalties. Unlike
safeguards, citations carry monetary penalties.

SUPERVISORY REPORTS WERE
INCOMPLETE AND INACCURATE

Supervisory reports were incomplete and inaccurate. In all six districts we
analyzed, we found a number of issues with the supervisory reports, such as
incomplete checklists or checklist questions that were incorrectly or incompletely
answered. We reviewed checklists in three Coal and three Metal and Nonmetal
districts.

These checklists are a key supervisory oversight tool, which a supervisor
completes after either reviewing the products (e.g., violations) of a completed
inspection or traveling with an inspector during a mine visit. MSHA requires
supervisors to complete checklists for each inspector. The checklist had
questions covering the four aspects of the violation process we reviewed:




                                                             MSHA VIOLATIONS
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                                U.S. Department of Labor – Office of Inspector General


   •   For each citation/order issued, did the inspector or specialist properly
       enforce the Mine Act, standards, regulations, approved plans, variances,
       waivers, and petitions for modifications?
   •   Did the inspector or specialist properly consider the health and safety of
       miners first when setting the termination due date and time for each
       citation issued?
   •   For each subsequent action issued to extend the termination due date and
       time for a previously issued citation, did the inspector or specialist properly
       consider the health and safety of miners and the actions taken by the
       operator to correct the condition/practice?
   •   For each citation/order vacated, did the inspector or specialist document
       proper justification?
   •   For each Section 104(d) citation/order issued, did the inspector or
       specialist include the statement “This is an unwarrantable failure to comply
       with a mandatory standard” in the Condition or Practice section of each
       citation/order?
   •   For each order issued, did the inspector or specialists properly consider
       the full extent of hazards presented and contributed to by the
       condition/practice when determining the area or equipment affected?
   •   Were citations/orders issued, modified, or terminated according to policy
       (Program Policy Manual and Citation/Order Handbook)?
   •   Were termination due dates established giving primary consideration to
       the hazard and associated exposure?

The Assistant District Manager (ADM) is supposed to review the supervisor’s
checklist as part of a second level review of the inspector’s work and a review of
the supervisor’s skills. The checklist completed by the ADM also had to answer
questions covering the four violation processes we reviewed:

   •   Did the supervisor review all inspection reports, forms, citations and
       orders, and notes for the field activity review?
   •   Do you agree with the supervisor’s assessment and, if applicable, the
       corrective actions taken by the supervisor? (listed multiple times in
       checklist for questions in supervisor checklist)

Our analysis found supervisors did not meet the reporting requirements for each
inspector in our sample. Supervisors either did not complete all required
supervisory reports or did not complete them correctly. Specifically, supervisors
had not completed all the required supervisory reports for 197 of the 414
inspectors in our sample. In addition, in the same sample, we found:
      • 210 instances in which supervisory reports were filled out with multiple
           conflicting answers (e.g., both “yes” and “no”),
      • 140 instances in which questions were left blank,


                                                              MSHA VIOLATIONS
                                         -19-         REPORT NO. 05-21-002-06-001
                               U.S. Department of Labor – Office of Inspector General


      •   17 instances in which questions were missing required dates (e.g.,
          debriefing to inspector), and
      •   7 instances in which questions with a “no” answer were missing a
          required explanation, among other errors.

This is also a long-standing issue. MSHA’s own monitoring efforts found issues
with the completion of supervisory reports through its accountability audits and
previous accident investigations. See Exhibit 2 for extracts from the accident
investigations.

The checklist problems occurred because MSHA did not design some questions
appropriately in the checklist, did not sufficiently train staff on how to complete
the checklists, or did not sufficiently monitor that supervisors completed the
checklists appropriately. For example, the checklist had compound questions that
resulted in supervisors providing two conflicting answers (e.g., yes and no, yes
and not applicable, or no and not applicable) for a single question.

Insufficient supervisory reviews affect workforce performance. MSHA developed
these checklists to ensure inspections happen in accordance with MSHA policies
and procedures. This includes reviewing inspection products, such as violations,
for completeness and thoroughness. In some cases, supervisors travel with the
inspectors on a mine visit to verify the quality of inspections. When supervisors
do not use the checklists properly, then the quality of inspections and violations
can suffer and affect miner safety.


                       OIG’S RECOMMENDATIONS


We recommend the Assistant Secretary for Mine Safety and Health:

   1. Provide refresher training to inspectors and supervisors on complying with
      MSHA guidance for each violation type.
   2. 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.
   3. Update system controls to improve compliance of MSHA violations with
      the Mine Act and MSHA guidance in the following instances:
          a. Verify only authorized violation types used;



                                                            MSHA VIOLATIONS
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                           U.S. Department of Labor – Office of Inspector General


      b. Include all required phrases automatically in the “Condition or
         Practice” entry when the inspector selects 103(a) citations,
         104(g)(1) orders, 104(e)(1)/104(e)(2) orders, or 107(a) orders;
      c. Ensure 104(d) orders and 104(g)(1) orders cite eligible CFR
         sections;
      d. Verify the correlations between the CFR or Mine Act sections of
         104(b) orders and the original violation;
      e. 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;
      f. Verify orders have the “Area or Equipment” entry populated when
         initially issuing the violation;
      g. Apply system controls to modifications done directly in MCAS, such
         as modifications due to court decisions or settlements;
      h. Identify modifications needed to other violations when vacating or
         modifying a violation;
      i. Verify the reasonableness of the due dates and provide warnings to
         inspectors when due dates appear longer than necessary; and
      j. 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.
4. 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.
5. 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.
6. 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 violations.

7. Develop a metric to measure performance and an internal control to verify
   timely uploading of violations from the inspector’s laptop/tablet into MCAS.
8. 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.
9. 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


                                                        MSHA VIOLATIONS
                                    -21-        REPORT NO. 05-21-002-06-001
                               U.S. Department of Labor – Office of Inspector General


      requirements, how to properly complete and review the checklist, and the
      importance of providing feedback using the checklist.
   10. 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.

SUMMARY OF MSHA’S RESPONSE

MSHA generally agreed with our recommendations and stated two had already
been addressed during the audit. MSHA noted one of the Mine Act sections OIG
cited in the recommendation referred to a “notice” rather than a “violation.” We
revised this recommendation in the final report.

In its response, 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. Our data
analysis covered calendar years 2013 to 2019, and we verified that our audit
results existed throughout this period, including after MSHA made the changes it
discussed in its response. In our report, we give MSHA credit for improvements
when appropriate.

MSHA’s full response to this report can be found in Appendix B.


We appreciate the cooperation and courtesies MSHA extended us during this
audit. OIG personnel who made major contributions to this report are listed in
Appendix C.




Carolyn Hantz
Assistant Inspector General for Audit




                                                            MSHA VIOLATIONS
                                        -22-        REPORT NO. 05-21-002-06-001
                             U.S. Department of Labor – Office of Inspector General



        EXHIBIT 1: EXAMPLE OF MSHA VIOLATION FORM


Example of MSHA form 7000-3 (Mine Citation/Order Form) that inspectors issue
to mine operators when they find a hazard at a mine.




                                                          MSHA VIOLATIONS
                                      -23-        REPORT NO. 05-21-002-06-001
                               U.S. Department of Labor – Office of Inspector General



    EXHIBIT 2: EXTRACTS FROM MSHA INTERNAL REVIEWS


Various MSHA internal reviews from accident investigations conducted from
2003 through 2012 identified many of the same issues we found during our audit.
We provide extracts from them related to the following findings:

   •   Not terminating violations by the due date,
   •   Unreasonably long termination due dates,
   •   Inconsistent use of 104(b) orders,
   •   Lack of specific reasons for vacated violations, and
   •   Improperly completed supervisory checklists.


Not terminating violations by the due date

   •   Aracoma Alma Mine #1 report stated:
          o “Inspectors set the time for abatement at 1 day or less for 77
             percent of the citations. However, enforcement personnel did not
             follow up on 60 percent of all citations by the termination due
             dates.”
          o “The Logan field office supervisors did not have an effective system
             to ensure follow up on citations issued at the Aracoma Alma
             Mine #1 by the termination due date stated on the citations. During
             the review period, inspectors did not follow up on 60 percent of all
             citations on or before the termination due dates. In many instances,
             the inspectors returned to an area of the mine previously cited, but
             did not reexamine the cited condition during that visit.”
   •   Sago Mine report stated:
          o “Inspectors did not always terminate citations in a timely manner.”
          o “District 3 supervisors and managers should have recognized these
             deficiencies during their review of citations, orders, and inspection
             notes and taken corrective actions.”
   •   Darby Mine No. 1 report stated:
          o “The level of enforcement was not always appropriate at the Darby
             Mine.”
          o “While District 7 personnel generally set appropriate abatement
             times when issuing citations, they did not always return on the
             termination due dates to determine if the condition had been abated
             in a timely manner or if an extension of abatement time was
             justified.”



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                               U.S. Department of Labor – Office of Inspector General


          o “District 7 supervisors, managers, and the conference litigation
             representatives did not recognize that MSHA policy and procedures
             were not consistently followed and take appropriate corrective
             action.”
   •   No. 5 Mine report stated:
          o “District 11 inspectors set the time for abatement at one day or less
             for 92 percent of the citations. However, District 11 enforcement
             personnel did not follow up on a significant number of citations on
             the termination due dates.”
          o “During interviews with the internal review team, District 11
             inspectors stated that their practice was to terminate S&S citations
             on the termination due dates. They also stated that in some
             instances the inspectors assigned to the No. 5 Mine were not
             aware of citations issued by District specialists. This lack of
             communication resulted in citations not being terminated in a timely
             manner. On several occasions, citations were issued to mine
             management not present at the time of issuance, which caused
             delays in the abatement of violations.”
          o “Inspectors did not always return to the area cited to determine if
             the condition had been abated in a timely manner or if an extension
             of abatement time was justified. While District 11 personnel set
             appropriate abatement times when issuing citations, they did not
             always return on the termination due dates. As a result, inspectors
             could not always determine if the cited condition was corrected but
             had reoccurred, or if the condition warranted the issuance of a
             section 104(b) order. Supervisors and inspectors did not have an
             effective method for tracking and directing the timely termination of
             violations at the No. 5 Mine.” “District 11 supervisors and managers
             should have recognized these deficiencies during their review of
             citations, orders, and inspection notes and taken corrective action.”

Unreasonably long termination due dates

   •   Upper Big Branch (UBB) Mine South report stated:
         o “Inspector documentation indicates that a reasonable abatement
             time was initially established for more than three-fourths of the
             citations issued at UBB during the review period. In the remaining
             cases, the Internal Review team believes the length of time allowed
             to abate the violation was longer than appropriate for the
             documented condition or practice.”



                                                            MSHA VIOLATIONS
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                               U.S. Department of Labor – Office of Inspector General


          o “In 45 of the 49 instances when inspectors extended termination
             due times, they did not document a reasonable basis for the
             extension or they allowed an excessive amount of time based on
             the documentation.” “There were at least 12 instances where
             citations were extended for the convenience of MSHA, including
             five citations that were extended because an inspector was injured.
             Multiple citations were extended to allow time for MSHA to review
             ventilation plan submittals, including six citations issued for
             noncompliance with respirable dust standards which required a
             plan revision. These extensions, which effectively set a new
             termination due date, did not show that the primary consideration
             was the health and safety of the miners. In his interview, the
             Assistant District Manager with responsibility for the Mt. Hope Field
             Office stated that he monitored weekly oversight reports of past due
             citations. He indicated that inspectors were directed to provide him
             a memorandum explaining why any citation was not terminated
             within 15 days of its due date. MSHA Headquarters also generated
             quarterly oversight reports that listed ‘Citations Past 30 Days Due
             When Terminated.’ Such oversight was intended to ensure timely
             abatement of known violations and associated hazards. However,
             the system allows inspectors to prevent un-terminated citations
             from being listed on the oversight reports by issuing extensions.”
   •   Darby Mine No. 1 report stated “some abatement times appeared
       extensive and did not always appear justified.”

Inconsistent use of 104(b) orders

   •   Sago Mine report stated “while they generally set appropriate abatement
       times, inspectors extended some citations for an unjustifiable amount of
       time, instead of issuing section 104(b) orders.”
   •   No. 5 Mine report stated “while District 11 personnel set appropriate
       abatement times when issuing citations, they did not always return on the
       termination due dates. As a result, inspectors could not always determine
       if the cited condition was corrected but had reoccurred, or if the condition
       warranted the issuance of a section 104(b) order.”

Lack of specific reasons for vacated violations

   •   Upper Big Branch Mine South report stated, “Inspectors provided
       adequate documentation for vacating two of the five enforcement actions.
       In one case, an inspector vacated a citation with a justification that


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       indicated that, after consulting with an MSHA ventilation specialist, it was
       decided that this citation was issued in error. The inspector did not explain
       the reason provided by the specialist. None of the supervisors and only
       one inspector documented the reasons and circumstances for vacating
       the enforcement actions.”
   •   Sago Mine report stated, “District 3 supervisors did not submit notes with
       the inspection report describing the reasons why enforcement actions
       were vacated.”
   •   No. 5 Mine report stated:
           o “Excluding Safety and Health (S&H) Conferences, seven citations
              and one order were vacated by the issuing inspectors during the
              review period. The reason for subsequent actions shown on MSHA
              Form 7000-3a typically stated that based upon additional facts and
              circumstances, the citation (or order) is hereby vacated. The
              supervisor did not submit notes with the inspection reports
              describing the reasons or circumstances that caused the
              enforcement action to be vacated.”
           o “Based on interviews, the inspector was then instructed by the
              supervisor to vacate the order and issue a second citation.
              Although the inspector did not agree with the decision, the §104(b)
              order was vacated and the original citation was terminated on
              July 25, 2001. Also on that date, the inspector issued another
              citation for a violation of 30 CFR 75.333(h). The justification for
              vacating the §104(b) order, as documented on MSHA
              Form 7000-3a, was ‘Based on additional information presented, this
              order is hereby being vacated.’ No notes were provided in the
              inspection report by the inspector or the supervisor for this action.”
           o “District 11 personnel did not always clearly describe the reasons
              for vacating citations and orders on MSHA Form 7000-3a. District
              11 supervisors did not submit notes with the inspection report
              describing reasons that caused enforcement actions to be
              vacated.”

Improperly completed supervisory checklists

   •   Upper Big Branch Mine South report stated:
         o “Supervisors did not document required information on many of the
             AA and FAR forms. Some supervisors did not document the correct
             event activity code on the forms, the dates of Uniform Mine File
             reviews, or the dates when inspectors were debriefed. One acting
             supervisor documented conducting five combined AAs and FARs
             during the review period. He did not fully complete any of the forms,
             and did not sign four of the forms. During interviews, acting
             supervisors stated they were not trained to perform the supervisory

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           duties they were assigned. While there was no requirement for
           acting supervisors to be trained in these duties, they stated that
           such training would have been beneficial.”
       o “Twenty-eight FARs (which included some from Technical Division
           work groups) were conducted on incomplete inspections. During
           interviews, supervisors stated that they were aware that FARs had
           to be conducted on completed events. One specialist supervisor
           indicated it would be difficult to conduct a FAR on a completed
           event because his specialists usually did not conduct complete
           events. Another specialist supervisor stated he had never thought
           about doing a FAR on a completed event. Interviews also revealed
           that most supervisors were not aware of all of the elements
           required to be evaluated during a FAR. Some supervisors confused
           the requirements for conducting FARs with the requirements for
           conducting AAs.”
•   Aracoma Alma Mine #1 report stated:
       o “Many of the deficiencies identified by the internal review team
           during this internal review should have been identified through
           adequate oversight by the District 4 Manager, Assistant District
           Manager and Logan field office supervisors. The required
           supervisory and second level reviews for all inspection activities for
           the Logan field office were incomplete, and the reviews conducted
           at the Aracoma Alma Mine #1 were not adequate. Logan field office
           supervisors did not document the required number of supervisory
           level reviews between January 1 and December 31, 2005.”
       o “The supervisory FAR/AA review conducted at the Aracoma Alma
           Mine #1 was inadequate because the review did not identify several
           deficiencies identified by the internal review team.” “The Assistant
           District Manager with oversight responsibility for the Logan Field
           office did not document that any second level reviews were
           conducted during calendar year 2005. As a result, the failure of
           Logan Field Office supervisors to conduct required FAR/AA reviews
           went undetected and uncorrected. Additionally, the District 4
           Manager did not hold the Assistant District Manager accountable
           for conducting required second level reviews during calendar year
           2005.”
•   Sago Mine report stated, “The internal review team determined that both
    the supervisory and second level reviews for inspection activities were not
    adequate. The first and second level reviews conducted by District 3
    managers did not identify several procedural and enforcement
    deficiencies. The Assistant District Manager - Inspection Division did not
    document any second level reviews.”
•   Darby Mine No. 1 report stated, “The second level reviews did not provide
    the necessary oversight to correct many of the issues identified by both

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    District 7 and headquarters reviews. While supervisors and managers
    conducted first and second level reviews, a number of deficiencies were
    not addressed.” “The field office supervisor conducted accompanied and
    field activity reviews. The internal review team identified that first level
    reviews did not provide effective oversight to prevent recurrences of
    issues previously identified.” It also stated, “District management did not
    ensure accountability relative to supervisory review and oversight.”
•   No. 5 Mine report stated, “The internal review team determined that both
    the supervisory and second level reviews for inspection activities at the
    No. 5 Mine were not adequate. These reviews did not identify several
    procedural and enforcement deficiencies documented in the No. 5 Mine
    inspection reports.”




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       EXHIBIT 3: MINE ACT AUTHORITY FOR VIOLATIONS


The Mine Act gives MSHA the authority to issue notices, safeguards, citations,
and orders. Below are the applicable sections of the Mine Act for each violation
type.

One section of the Mine Act discusses notices:

   •   Section 104(e)(1) states to issue a written notice upon finding a pattern of
       violations (POV) of mandatory health or safety standards that could
       significantly and substantially contribute to the cause and effect of a safety
       or health hazard. These are called 104(e)(1) written notices or POV
       written notices.

One section of the Mine Act discusses safeguards:

   •   Section 314(b) allows other safeguards adequate to minimize hazards
       with respect to transportation of men and materials. These are called
       314(b) safeguards.

Two sections of the Mine Act discuss citations:

   •   Section 104(a) states to issue a citation to the operator in writing and
       describe the nature of the violation with a reference to the provision of the
       act, standard, rule, regulation, or order alleged to have been violated. The
       citation shall include a reasonable time for abatement of the violation.
       These are called 104(a) citations, and
   •   Section 104(d)(1) allows issuing a citation upon finding a violation of a
       mandatory health or safety standard that could significantly and
       substantially contribute to the cause and effect of a safety or health hazard
       and was caused by an unwarrantable failure of the operator. These are
       called 104(d)(1) citations.

Various sections of the Mine Act discuss orders:

   •   Section 103(k) allows issuing an order in the event of an accident
       occurring in a mine. These are called 103(k) orders;
   •   Section 104(b) allows issuing an order upon finding that a 104(a) citation
       has not been totally abated with the allowable period of time. These are
       called 104(b) orders;
   •   Sections 104(d)(1) and 104(d)(2) allow issuing an order upon finding
       another violation of a mandatory health or safety standard caused by an


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    unwarrantable failure of the operator during the same or subsequent
    inspection within 90 days after issuing a 104(d)(1) citation. These are
    called 104(d)(1) orders and 104(d)(2) orders;
•   Sections 104(e)(1) and 104(e)(2) allow issuing an order upon finding
    another violation of a mandatory health or safety standard that could
    significantly and substantially contribute to the cause and effect of a safety
    or health hazard within during the same or subsequent inspection within
    90 days after issuing a 104(e)(1) written notice. These are called 104(e)(1)
    orders and 104(e)(2) orders; and
•   Section 104(g)(1) allows issuing an order upon finding a miner who has
    not received requisite safety training. These are called 104(g)(1) orders.
•   Section 107(a) allows issuing an order upon finding an imminent danger at
    the mine. These are called 107(a) orders.




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        APPENDIX A: SCOPE, METHODOLOGY, & CRITERIA


SCOPE

Our scope for the audit included the more than 736,000 violations MSHA issued
between January 1, 2013, and September 30, 2019.

At MSHA headquarters, we interviewed personnel in various program areas:
Coal Mine Safety & Health; Metal and Nonmetal Mine Safety & Health; Education
Policy and Development; Program Evaluation and Information Resources; and
the Office of Assessments.

We did site work at three Coal Districts (5, 7, and 10) and three Metal/Nonmetal
Districts (Northeastern, Rocky Mountain, and Western). At the districts, we
interviewed the District Managers, Assistant District Managers for Technical
Division, Assistant District Managers for Enforcement Division, Field Office
Supervisors, inspectors, and specialists.

METHODOLOGY

We conducted this performance audit in accordance with generally accepted
government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit objective.
We believe that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objective.

To answer our audit objective, we did the following:

   •   Interviewed MSHA headquarters, district, and field office personnel to
       learn the violations process;
   •   Interviewed people who submitted hotline complaints to the OIG related to
       allegations of inappropriate modifying or vacating of violations;
   •   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;
   •   Reviewed public laws, United States Code, and MSHA guidance related to
       the violations process;
   •   Analyzed MCAS data for more than 736,000 violations issued between
       January 1, 2013, and September 30, 2019;




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   •   Reviewed system reports or inspection reports for select violations. This
       included documentation such as the MSHA Form 7000-3 (Mine
       Citation/Order Form), MSHA Form 7000-3a (Mine Citation/Order
       Continuation Form), inspectors’ field notes, and vacate memos (if
       prepared);
   •   Reviewed fiscal year (FY) 16 supervisory checklists at six MSHA districts;
   •   Analyzed internal controls related to the violation process; and
   •   Reviewed dockets for modified violations no longer complying with the
       Mine Act or MSHA guidance.

We assessed the reliability of computer-processed data. Through our testing, we
found the data was generally complete but sometimes inaccurate. For
completeness, there was one field (citation numbers) we could not determine
was complete because the numbers ranged over nine million numbers and
MSHA’s method to distribute those numbers to inspectors created numerous
gaps to explore. For example, the numbers ranged from 1,000,120 to 9,988,634
for the more than 736,000 violations issued between January 1, 2013, and
September 30, 2019. However, this was the best available data. For accuracy,
we found violations that no longer complied with MSHA guidance or the Mine
Act. We addressed these accuracy issues in our report and made
recommendations to correct them going forward, such as adding system controls
and providing additional training.

CRITERIA

We used the following key criteria to answer our audit objective:

   •   Federal Mine Safety and Health Act of 1977, as amended (Mine Act)

   •   Title 30 Code of Federal Regulations (2019)

   •   Program Policy Manual Volume I (November 2013)

   •   Citation and Order Writing Handbook for Coal Mines and Metal and
       Nonmetal Mines (PH08-I-1 March 2008 and PH13-I-1(1) December 2013)

   •   Coal Mine Safety and Health Supervisor's Handbook (AH08-III-1 February
       2008 and AH14-III-4 January 2014)

   •   Metal and Nonmetal Mine Safety and Health Supervisors Handbook
       (AH09-III-1(1) June 2009)




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•   MSHA Standardized Information System (MSIS) User Manual, April 17,
    2015

•   Inspectors’ Portable Applications for Laptops (IPAL) User Manual,
    January 19, 2016

•   Various MSHA internal reviews for accident investigations:
       o No. 5 Mine, Jim Walter Resources, Inc., Brookwood, Tuscaloosa
          County, Alabama, January 24, 2003
       o Aracoma Alma Mine #1, Aracoma Coal Company, Inc., Stollings,
          Logan County, West Virginia, June 28, 2007
       o Darby Mine No. 1, Kentucky Darby LLC, Holmes Mill, Harlan
          County, Kentucky, June 28, 2007
       o Sago Mine, Wolf Run Mining Company, Sago, Upshur County,
          West Virginia, June 28, 2007
       o Upper Big Branch Mine-South, Performance Coal Company,
          Montcoal, Raleigh County, West Virginia, March 6, 2012




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APPENDIX B: AGENCY’S RESPONSE TO THE REPORT




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MSHA’s response did not include a page numbered “page 2.”




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U.S. Department of Labor – Office of Inspector General




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                 APPENDIX C: ACKNOWLEDGEMENTS


Key contributors to this report were:

Nicholas Christopher, Audit Director
Christopher Wenthold, Audit Manager
Steve Chiang, Auditor
Michael Towne, Auditor
Angela Stewart, Auditor
Brandon Hollenbeck, Auditor




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REPORT FRAUD, WASTE, OR ABUSE
 TO THE DEPARTMENT OF LABOR




               Online
  http://www.oig.dol.gov/hotline.htm

             Telephone
  (800) 347-3756 or (202) 693-6999

                 Fax
           (202) 693-7020

               Address
     Office of Inspector General
      U.S. Department of Labor
    200 Constitution Avenue, NW
            Room S-5506
       Washington, DC 20210