Is the quality of the Mine Safety and Health Administration’s (MSHA) inspectorate a widespread and growing problem? Yes, according to the Secretary of Labor’s Independent Panel assessment of an internal review of MSHA enforcement actions at Upper Big Branch Mine South. Specifically, the panel determined in 2012 that:
“[M]ine inspection has become a job at which few, if any, could be expected to fully succeed. No amount of additional training or revisions to manuals and handbooks can successfully address this problem…These structural problems are exacerbated by changes in the demographic composition of the MSHA inspectorate. Retirements have, and are continuing to decimate the ranks of mining faculty at universities, seasoned mining engineers, mine managers, miners…and MSHA inspectors…The pool of potential hires is insufficient to replace the numbers being lost through attrition, and with increasing frequency, the new hires are completely inexperienced in mining…The shortage of qualified personnel, which is likely to persist for the foreseeable future, underscores the need for new solutions.”
The panel’s claim that “few, if any” individuals could “fully succeed” as mine inspectors was (and remains) difficult to square with the fact that mining has never been safer. In 2011, fatality and injury rates were the lowest ever recorded, and those rates improved again in 2012. While we have not arrived, the industry continues to head in the right direction on health and safety.
Nevertheless, well-trained, experienced and effective MSHA inspectors are, due to the authority they possess, vital to the health of our industry. More than 30 years ago, Congress provided every MSHA inspector with tremendous — perhaps unprecedented — enforcement authority. A single inspector, even an inspector with very little experience or training and regardless of whether he or she has ever spent any time at the mine in question, can, with the stroke of a pen, shut that mine down. Even if the mine operator can show — without any doubt — that the inspector’s decision was wrong, the mine operator will almost certainly never recover the lost hours, days or weeks of production or the legal fees incurred in challenging that inspector’s enforcement action.
What this means is that an inexperienced, poorly trained MSHA inspector can turn a profitable mine into an unprofitable one without improving compliance or the safety or health of miners at that operation. Worse, bad MSHA inspectors, poorly trained inspectors or inexperienced inspectors erode the trust and respect that good, effective MSHA inspectors need (and work hard to earn) from miners and mine operators. Miners are less likely to ask an MSHA inspector for advice or for information about anything if the inspectors they’ve encountered are inexperienced, unqualified, poorly trained, etc. Good miners and mine operators will always respect an MSHA inspector’s authority, but good inspectors know that the most effective inspectors are respected and trusted for more than just their authority.
The panel was certainly correct in its observation that retirements are depleting MSHA’s inspectorate. Similarly, few doubt that it is difficult for MSHA to recruit experienced, educated/certified and well-trained candidates.
That poses a real problem for the industry. Poor inspectors who write bad paper often are the ones who do not understand complex ventilation or roof control plans, who are not proficient with dust sampling devices or with basic industrial hygiene practices, or who simply lack the experience, training or education necessary to properly evaluate dynamic mining conditions (particularly those encountered underground). Field office supervisors and district management who fail to identify and correct the mistakes those inspectors make compound the problem.
What should the industry do about this? First, insist on more and better training of all inspectors, both new and experienced. The training MSHA now provides to inspectors hardly seems consistent, uniform or well-received. To take just one example, MSHA’s own data shows that its inspectors improperly classify approximately 20%-30% of violations cited and contested as Significant & Substantial.
MSHA requires operators to provide extensive, MSHA-approved training to miners every year, and operators should demand that MSHA likewise provide extensive annual training to its inspectors. An MSHA inspector who does not complete the annual training should not be permitted to inspect. Moreover, MSHA should also make this training open and available to the industry; all the materials MSHA uses to train its inspectors should be available to the public. To the extent possible, MSHA should invite industry professionals to this training and/or videotape the classes and post them online.
Second, MSHA should hire experienced miners as inspectors. MSHA requires new hires to have mining experience, but its requirements are not high and are not specific enough. Mining experience should obviously be a basic job requirement, a prerequisite. However, individuals with less mining experience who possess academic credentials and professional certificates specific to mining or safety and health should be considered by MSHA.
Third, the industry expects its safety professionals to be experienced, educated and certified. The industry should insist on and support the same for MSHA inspectors. MSHA should require its inspectors to work toward and earn certified safety professional or certified mine safety professional credentials, and MSHA health specialists should be certified industrial hygienists.
Finally, operators should continue to inform and educate MSHA inspectors on the job, during inspections. Although some inspectors are unreceptive to such efforts, more are not and will welcome civil, professional efforts by operators to provide them with information and explain particular issues, practices and conditions.
MSHA and mine operators both want inspectors to be successful, to fairly and effectively enforce MSHA’s standards and regulations. MSHA employs many inspectors who are successful, but some of the most experienced and effective inspectors are retiring. Higher standards, proper training and certification will maintain and improve the quality of MSHA’s inspectorate.
R. Brian Hendrix is a shareholder in the Washington, D.C., region office of Jackson Lewis P.C.