OIG titled its 79-page report: “In 32 Years MSHA Has Never Successfully Exercised its Pattern of Violation Authority”
OIG said its performance audit of the agency looked for how MSHA had developed its rules and procedures and used its authority, and whether federal officials reviewed and monitored operators’ POV corrective action plans on a timely, consistent basis.
Additionally, the oversight office said it was seeking to determine whether MSHA’s POV computer application contained errors in addition to the ones the federal agency had reported after the Upper Big Branch explosion in April.
“MSHA has not successfully exercised its POV authority in 32 years [and] administration of this authority has been hampered by a lack of leadership and priority in the department across various administrations” the OIG concluded in its report.
“MSHA took 13 years to finalize POV regulations. Those regulations created limitations on MSHA’s authority that were not present in the enabling legislation and made it difficult for MSHA to place mines on POV status.”
For the following 17 years, the agency said, MSHA districts continued to perform POV analyses based on individual interpretations of requirements, but no operators were ever put on POV status.
“In 2007, MSHA attempted to implement a standardized method based on quantitative data for identifying potential POV mines; however, (a) the process was unreliable and (b) the criteria were complex and lacked a supportable rationale,” OIG officials pointed out.
The oversight office also found there was no monitoring of operations’ implementation of POV corrective action plans, and logic errors resulted in unreliable POV system results.
While no deficiencies were found in MSHA’s data reliability used for POV screenings, OIG did determine that MSHA delayed rock dust sample testing that could lead to delays in identifying safety hazards.
“We made 10 recommendations to the assistant secretary for mine safety and health [Joseph Main],” the OIG said.
“In summary, we recommended that MSHA re-evaluate current POV regulations; seek stakeholders input in developing new, transparent POV criteria; use system development life cycle techniques in creating any new POV-related computer applications; and re-evaluate the standard for timely completion of laboratory tests. The assistant secretary agreed with our recommendations and committed to developing and implementing corrective actions.”
On Friday afternoon, MSHA secretary Main responded to the report and announced the agency’s second major reform phase for the federal pattern of violations process.
“We agree with the final recommendations in the OIG report and welcome that input, which we believe will help us improve the process already underway at MSHA,” Main said.
“Our efforts are focused on ensuring that future potential POV and POV determinations are an effective part of MSHA’s enforcement strategy and advance Congress’s intent – that mine operators find and fix the root causes of violations before they become a hazard to miners.”
He reiterated that the work being conducted on the current POV process system is considered a “stopgap measure” which will be in place until other regulatory or legislative reforms replace it.
Under the new system adjustments, mines with potential POV notification will be able to submit a corrective action plan with concrete and meaningful measures for significant and substantial violations reductions.
Achievable benchmarks and milestones for putting the program in place and oversight to ensure the program is being followed will also be required.
Measures for rectifying a mine’s specific compliance problems are also required under MSHA’s new processes.
“The new procedures include more meaningful corrective action programs and measures to help ensure long-term compliance on the part of mine operators,” Main said, noting that those mines placed on a potential POV list will now abide by much stricter goals to avoid POV sanctions.
“Mines that implement appropriate corrective action programs will need to achieve a 50% reduction in the rate of S&S [significant and substantial] violations, or a rate within the top 50% for all mines of similar type and classification,” he said.
“Mines that do not choose to implement corrective action programs will need to achieve a 70% or more reduction in their S&S issuance rates or a rate within the top 35% for all mines of similar type and classification.”
Should a mine fail to meet the mandates of the potential POV procedure and be placed on a POV, each issued S&S violation will be an automatic closure order.
To avoid the move, mines must have a complete federal inspection with no S&S violations found.
“Any decision not to place a mine on POV status will be documented, and the mine will be closely monitored for backsliding,” Main noted.
“Mines that do meet reductions will also be monitored and subject to future potential POV screenings.”
MSHA said a POV panel with individuals from three separate MSHA divisions will review questions on mitigating factors for mines selected as a potential POV.
The goal of the group is to ensure consistency of both quantitative and qualitative criteria application.