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MINE SAFETY AND HEALTH ADMINISTRATION

Office of Inspector General—Office of Audit

IN 32 YEARS MSHA HAS NEVER SUCCESSFULLY EXERCISED ITS PATTERN OF VIOLATIONS AUTHORITY

Date Issued: Report Number:

September 29, 2010 05-10-005-06-001

U.S. DEPARTMENT OF LABOR OFFICE OF INSPECTOR GENERAL Office of Audit

September 2010 IN 32 YEARS MSHA HAS NEVER SUCCESSFULLY EXERCISED ITS PATTERN OF VIOLATIONS AUTHORITY WHAT OIG FOUND MSHA has not successfully exercised its POV authority in 32 years. Administration of this authority has been hampered by a lack of leadership and priority in the Department across various administrations. 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 next 17 years, MSHA Districts performed POV analyses based on individual interpretations of requirements, but never put any mine operator 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. The audit also concluded that:

BRIEFLY…
Highlights of Report Number 05-10-005-06-001, to the Assistant Secretary of Labor for Mine Safety and Health.

WHY READ THE REPORT On April 5, 2010, an accident at the Upper Big Branch Mine-South in Montcoal, West Virginia killed 29 miners. Concerns were raised about the mine’s safety record and the Mine Safety and Health Administration’s (MSHA) process for identifying mines with a pattern of violations (POV). Those concerns increased when MSHA reported that an error in its POV computer application caused this mine to be omitted from a list of mines with potential patterns of violations. POV authority is an important tool that lets MSHA take enhanced enforcement actions when a mine demonstrates recurring safety violations that could significantly and substantially contribute to the cause and effect of health and safety issues. WHY OIG CONDUCTED THE AUDIT The OIG conducted a performance audit to determine: • • • How MSHA had developed its POV rules, criteria, and procedures and implemented its POV authority; Whether MSHA timely and consistently reviewed and monitored mine operators’ POV corrective action plans; Whether MSHA’s POV computer application contained errors in addition to the one MSHA reported after the Upper Big Branch MineSouth accident; Whether MSHA’s enforcement data was sufficiently reliable to support accurate POV analysis; and The affects on the results of MSHA’s POV model from various changes in the criteria.

• • • •

MSHA did not monitor the implementation of mine operators’ POV corrective action plans; Logic errors caused unreliable results from MSHA’s POV computer application; Tests identified no deficiencies in the reliability of data MSHA used for POV screening; and Delays in testing rock dust samples could cause delays in identifying safety hazards.

• •

WHAT OIG RECOMMENDED We made 10 recommendations to the Assistant Secretary for Mine Safety and Health. 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.

READ THE FULL REPORT
To view the report, including the scope, methodology, and full agency response, go to: http://www.oig.dol.gov/public/reports/oa/2010/05-10005-06-001.pdf

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

Table of Contents
Assistant Inspector General’s Report ......................................................................... 1 Objective 1 — How did MSHA develop and implement its POV authority? ............. 4 POV rulemaking stalled as stakeholders argued differing views on implementation; MSHA curtailed its own POV authority and rarely tried to use it..................................................................................................................... 4 Objective 2 — Did MSHA timely and consistently review and monitor mine operators’ POV corrective action plans? ......................................... 14 Operator corrective action plans were given little importance in MSHA’s POV process. ..................................................................................................... 14 Objective 3 — Did MSHA’s POV computer application contain errors in addition to the one identified and reported by MSHA after the Upper Big Branch Mine-South accident?........................................................... 15 Three logic errors caused unreliable results from POV computer application. ......................................................................................................... 15 Objective 4 — Was MSHA’s enforcement data sufficiently reliable to support accurate POV analysis?..................................................................... 19 Data reliability tests discovered no deficiencies in accuracy or completeness, but delays in laboratory test results are a problem. .................... 19 Objective 5 — How Would the Results of MSHA’s POV Model Be Affected by Changes in the Current Criteria? ...................................................... 22 Some criteria significantly changed screening results and improvement success. ............................................................................................................. 22 Recommendations ...................................................................................................... 24 Appendices Appendix A Background..................................................................................... 27 Appendix B Objectives, Scope, Methodology, and Criteria ................................ 29 Appendix C MSHA Documents Related to Pattern of Violations Authority ......... 35 Appendix D MSHA’s Pattern of Violations Screening Criteria and Scoring Model ........................................................................................................ 37 Appendix E OIG Alert Memo – MSHA Set Limits on the Number of Potential Pattern of Violations Mines to be Monitored................................... 41 Appendix F MSHA’s Response to OIG Alert Memo ........................................... 43

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Appendix G Technical Details of the Logic Errors, Criteria Misstatements, and Anomaly in the POV Computer Application............................................ 59 Appendix H 70 Unique POV Data Elements Tested and Related Descriptions .................................................................................................. 63 Appendix I Integrated MSIS Data Flow Diagram .............................................. 69 Appendix J Affects on the Results of MSHA’s POV Model from Criteria Changes........................................................................................................ 71 Appendix K Acronyms and Abbreviations .......................................................... 73 Appendix L MSHA Response to Draft Report .................................................... 75 Appendix M Acknowledgements......................................................................... 81

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U.S. Department of Labor

Office of Inspector General Washington, D.C. 20210

September 29, 2010 Assistant Inspector General’s Report Joseph A. Main Assistant Secretary for Mine Safety and Health U.S. Department of Labor 1100 Wilson Boulevard Arlington, Virginia 22209 On April 5, 2010, an accident at the Upper Big Branch Mine-South in Montcoal, West Virginia, resulted in the deaths of 29 miners. Concerns were immediately raised about the mine’s safety record and the Mine Safety and Health Administration’s (MSHA) process for identifying mines having a pattern of violations (POV). Those concerns were heightened when, subsequent to the fatal accident, MSHA determined that a computer error had caused the Upper Big Branch Mine-South to incorrectly be omitted from its most recent list of mines with potential patterns of violations. As part of our audit oversight responsibility and in response to a request from several Members of Congress, the Office of Inspector General (OIG) audited MSHA’s use of its POV authority. This authority is an important tool available to MSHA to take enhanced enforcement actions when a mine operator demonstrates recurring safety violations that could significantly and substantially contribute to the cause and effect of health and safety hazards. See Appendix A for more information. Specifically, the OIG conducted a performance audit to determine the history of MSHA’s administration of its POV authority since its inception in 1977. To this end, we conducted audit work to determine the following: 1. How MSHA had developed its POV rules, criteria, and procedures and implemented its POV authority; 2. Whether MSHA timely and consistently reviewed and monitored mine operators’ POV corrective action plans; 3. Whether MSHA’s POV computer application contained errors in addition to the one identified and reported by MSHA after the Upper Big Branch Mine-South accident; 4. Whether MSHA’s enforcement data was sufficiently reliable to support accurate POV analysis; and 5. The effects on the results of MSHA’s POV model from various changes in the criteria.

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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 objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives. Our objectives, scope, methodology, and criteria are detailed in Appendix B. Results in Brief Since passage of the Federal Mine Safety and Health Act of 1977 (Mine Act) more than 32 years ago, MSHA has not successfully exercised its POV authority. During that time, MSHA had only once issued a pattern of violations notice to a mine operator. Successful administration of this authority has been hampered by a lack of leadership and priority in the Department across various Administrations, which in turn allowed the rulemaking process to stall and fall victim to the competing interests of the industry, the operators, and the unions representing the miners as to how that authority should be administered. Indeed, nearly 13 years passed from the enactment of the Mine Act in 1977 until regulations for the administration of the POV authority were finally implemented by the Department in 1990. However, those regulations created limitations on MSHA’s authority that were not present in the enabling legislation and which made it difficult for MSHA to place mines on POV status. According to MSHA officials, in the nearly 17 years that followed, MSHA districts, with limited guidance and promotion from the national office, performed POV analyses based on individual interpretations of requirements. In 2007, MSHA attempted for the first time to implement a standard method based on quantitative data for screening and monitoring potential POV mines. However, the criteria lacked a supportable rationale and the process proved to be complex and unreliable. In responding to our draft report, the Assistant Secretary for Mine Safety and Health agreed that the pattern of violations process was flawed and stated that correcting the problem was a high priority. He agreed with all of our recommendations and specifically stated that MSHA intended to propose new POV regulations to simplify the criteria for placing mines on a POV notice and to make the POV system a more effective tool in identifying problem mines and changing operators’ behavior. He expressed concern with our statement that MSHA was responsible for assuring that mine operators protect workers from mining hazards and our conclusion that MSHA’s exclusion of certain mines from POV analysis potentially placed miners at risk (see page 10). Our statement and conclusion are based on the requirements of the Mine Act that describe MSHA’s roles and responsibilities in setting safety and health standards, identifying instances of non-compliance (including patterns of violations), and compelling mine operators to take timely corrective actions. These are integral components of the overall system for providing miners with a safe and healthy work
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environment. Whenever MSHA does not fulfill these responsibilities, miners may be at increased risk. The Assistant Secretary’s entire response is contained in Appendix L. We made 10 recommendations to the Assistant Secretary for Mine Safety and Health. In summary, we recommended that MSHA evaluate the appropriateness of revising current POV regulations; seek stakeholder input to POV screening criteria; assure that POV selection criteria are transparent and POV decisions are based solely on safety and health conditions in mines; and ensure that any POV computer applications are developed and maintained using system life cycle techniques. RESULTS AND FINDINGS Specific enforcement authority targeting mine operators with a pattern of significant and substantial (S&S) violations of mandatory safety and health standards was defined in Section 104(e) of the Mine Act. Congress intended this authority as “an effective tool to protect miners when the operator demonstrates his disregard for the health and safety of miners through an established pattern of violations.” 1 The Mine Act did not define “pattern of violations,” but authorized the Secretary of Labor to make rules to establish criteria for determining when a pattern existed. To assist MSHA’s efforts to improve and make POV authority an effective tool for ensuring safety in the Nation’s mines, it is important to understand what has been tried in the past, what obstacles inhibited the usefulness of POV authority, and what concerns must be addressed in a new system. Our audit work covered MSHA’s development, implementation, and use of POV authority from its origin in the Mine Act through May 10, 2010. We reviewed MSHA’s development and implementation of POV authority by reviewing available documentation 2 related to MSHA’s POV rulemaking processes (1980, 1985, and 1989/1990) as well as subsequent MSHA policy and guidance materials. We reviewed the development of MSHA’s Pattern of Violations Screening Criteria and Scoring Model (POV model), which was implemented in 2007. We also examined the computer application used by MSHA to implement this model and identify potential POV mines from 2007–2009. Finally, we performed tests to assure that MSHA’s enforcement data would produce reliable results when screening for POV mines and performed analyses to demonstrate the impacts of revising the current criteria.

1 2

Senate Report No. 95, 95th Congress, 1st Session, p. 33 (1977) We were limited in our ability to reconstruct events related to the development and implementation of POV authority because some pertinent historical records had been lost or destroyed and because many MSHA personnel involved in these events were no longer available.

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Objective 1 — How did MSHA develop and implement its POV authority? POV rulemaking stalled as stakeholders argued differing views on implementation; MSHA curtailed its own POV authority and rarely tried to use it. MSHA started a rulemaking process in 1980, but aborted that process in 1985. MSHA renewed efforts to create regulations in 1989, resulting in a final rule in 1990. MSHA District personnel stated that during the nearly 17 years that followed, they annually used enforcement data and their personal knowledge and experience to evaluate mines for a pattern of violations. However, little documentation exists on how this was done and no mine was placed on POV status during this time. In 2007, MSHA designed and implemented a standard method based on quantitative data for identifying and monitoring mines that showed a potential pattern of violations. Only once during that entire span of time (2008) did MSHA issue a pattern of violations notice to a mine operator. However, because the Federal Mine Safety and Health Review Commission (Commission) subsequently modified some of the citations and orders that caused that POV notice to be issued, MSHA did not enforce the order. MSHA has never successfully exercised its POV authority in 32 years. The following timeline summarizes the general chronology of MSHA’s efforts to develop criteria and guidance related to its POV authority.
Aug 1980 Proposed Rule Published May 1989 Proposed Rule Published Jun 2007 Scoring Model used for first time

Nov 1977 Passage of Mine Act of 1977

Feb 1985 Proposed Rule Withdrawn

Jul 1990 Final Rule Published

Jan 2011 Proposed Rulemaking

Nearly 13 Years of Rulemaking: To identify the criteria and procedures that it would use to notify an operator that a pattern of violations existed, MSHA published the first Proposed Rule related to its POV authority in the Federal Register on August 15, 1980. The Proposed Rule explained that a pattern would typically be shown by (1) an unusually large number of S&S violations and little or no indication of improved compliance or (2) a worsening trend of S&S violations indicating a greater than normal risk of disaster, accidents, injuries, or illnesses. It made clear that the determination would not be made mechanically, but would be a documented judgment involving both quantitative and qualitative factors. In support of this concept, the proposed rule called for a District Review Committee, consisting of at least three experienced MSHA employees, to make recommendations to the District Manager about whether a pattern of violations existed at any specific mine. The Proposed Rule listed 10 factors to consider, at least annually, in identifying mines that were developing a potential pattern of violations. These included the (1) number of
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S&S citations; (2) comparative number of S&S citations in successive inspections; (3) number of citations and orders for unwarrantable failures; (4) number of withdrawal orders for failure to abate S&S violations; (5) number of imminent danger orders resulting from S&S violations; (6) number of recurring S&S violations of the same or related standard; (7) number of violations concerning the submittal of reports or plans, examinations, and training of personnel; (8) operator’s accident/injury/illness/fatality incidence rate; (9) inspector’s statement for S&S citations and orders; and (10) number of inspection days. It also listed five criteria to be considered in determining whether a pattern of violations existed, including (1) a chronic recurrence of S&S violations during one or more review periods; (2) MSHA’s use of enforcement mechanisms other than 104(a) citations (e.g., withdrawal orders, imminent danger orders) to address S&S violations during a review period; (3) a history of accidents, injuries, illnesses, and fatalities at the mine; (4) lack of management commitment to protecting the safety and health of miners; and (5) extenuating circumstances beyond management’s control that strongly mitigate other findings. Although not required by the Proposed Rule, MSHA stated that it might, as a matter of policy, alert affected mine operators that an initial screening had identified that operator’s mine as a potential recipient of a pattern notice, unless the mine’s compliance record improved. The Proposed Rule provided a 60-day public comment period, ending October 14, 1980. On February 8, 1985, more than 4 years after the public comment period ended, MSHA published a withdrawal of the Proposed Rule in the Federal Register. MSHA explained that comments it had received were generally in opposition to its implementation because of its complexity, statistical orientation, and vagueness. Some comments stated that it was inappropriate for MSHA to establish a POV regulation at a time that the Commission was redefining the definition of a S&S violation through ongoing litigation (Secretary of Labor v Cement Division, National Gypsum Co., 3 Federal Mine Safety and Health Review Commission 822, April 1981). In the same Federal Register notice, MSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) stating its intention to reconsider appropriate POV criteria and procedures. In developing a new approach, MSHA believed POV criteria should focus on the health and safety record of each mine rather than a comparison of individual mines to industry-wide norms. MSHA envisioned simplified criteria in contrast to the previously proposed rule. MSHA stated that it was focusing on two principal criteria: (1) were S&S violations common to a particular hazard or did S&S violations throughout the mine represent an underlying health and safety problem, and (2) is the mine on a 104(d) unwarrantable failure sequence, indicating that other enforcement measures had been ineffective? MSHA asked for public participation and suggestions in formulating POV criteria and procedures.

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After another 4 years had elapsed, on May 30, 1989, MSHA published a second Proposed Rule for POV in the Federal Register. In explaining this new Proposed Rule, MSHA addressed some public comments received in response to the 1985 ANPRM. Specifically, MSHA stated that it (a) did not believe it was appropriate to define what constituted a “significant and substantial” violation in the rule, (b) believed it was appropriate to base POV determinations on only final citations and orders, and (c) believed that it was appropriate to warn operators of a potential pattern of violations prior to issuance of a notice that a pattern existed because of the severity of the sanctions and because it expected that reaching the level of compliance required to terminate a pattern of violations notice “can be expected to be difficult at some mines.” These latter two items were not required by the language in the enabling statute, but amounted to self-imposed restrictions on POV authority by MSHA. The proposed rule listed several factors to consider, at least annually, in performing an initial screening of mines to evaluate for a pattern of violations. These included (1) the mine’s history of S&S violations, closure orders for failure to abate S&S violations, and imminent danger orders resulting from S&S violations; (2) enforcement actions other than POV that have been used at the mine; (3) evidence of the operator’s lack of good faith in correcting S&S violations; (4) an accident, injury, or illness record that demonstrates a serious safety and health management problem; and (5) mitigating circumstances, if any. For mines identified by these initial screening criteria, a pattern of violations would be established by then examining a history of S&S violations (1) of a particular standard, (2) standards related to the same hazard, and (3) caused by an unwarrantable failure to comply. Only final citations and orders were to be used to identify mines with a potential pattern of violations. The Proposed Rule intentionally did not quantify the violations or other factors that would identify a POV mine because MSHA wanted to retain the “flexibility to individually evaluate each mine’s compliance history and particular circumstances….” In November 1989, MSHA conducted public hearings on the Proposed Rule in Pittsburgh, Pennsylvania and Denver, Colorado. Nine witnesses representing the mining industry and eight representing organized labor testified. The need for a definition of “significant and substantial” was again raised by several mine industry participants. MSHA responded that it would adhere to case law in defining S&S since future case law might modify the meaning. Several participants spoke about MSHA’s plan to use only final citations and orders. Industry supported the concept; organized labor opposed it. MSHA defended the use of final citations and orders as providing a clear notice to operators of which citations and orders MSHA would consider. In publishing the Final Rule on July 31, 1990, MSHA again addressed concerns about the use of only final citations and orders in the POV criteria. Some comments had raised concerns that this limitation would motivate operators to challenge every S&S citation and order, thus delaying MSHA’s application of its POV authority. However,
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MSHA repeated its position that use of final citations and orders in the pattern criteria provided clear notice to operators of which citations and orders would be used and that “proper notice … is of paramount importance given the extraordinary nature of the pattern notice.” The resulting POV regulations (30 Code of Federal Regulations (CFR) 104) remained unchanged from those presented in the Proposed Rule. They included the self-imposed restrictions of (1) using only final citations and orders in determining a pattern of violations and (2) creation of the “potential” pattern of violations warning to mine operators and a subsequent period of further evaluation before exercising the POV authority. Nearly 17 Years of Decentralized Implementation: From the time POV regulations became effective in October 1990 until mid-2007, POV screening was decentralized and lacked a consistent, structured approach. MSHA District offices were responsible for conducting the required annual POV screening of mines during this period, but never put any mine operator on POV status. While District Managers reported that they had kept files on POV activities during this period, most also stated that those records had been destroyed under MSHA’s record retention policies. During this period, MSHA Administrators for the Office of Coal Mine Safety and Health (Coal) and Office of Metal/Nonmetal Safety and Health (Metal/Nonmetal) issued occasional memos and policy letters related to POV to their District offices (see Appendix C). The guidance generally reiterated the criteria contained in the regulations, but also created some procedures unique to each program office. Districts were required to annually conduct a screening of all mines to identify those that should receive a potential POV notification. These screenings were to review each mine’s compliance record for the past 24-month period and focus on repeated S&S violations (a) of a particular standard, (b) of standards related to the same hazard, or (c) caused by an unwarrantable failure to comply. District Managers stated that they involved various District personnel in completing the annual screenings, including Assistant District Managers, Staff Assistants, Program Analysts, Field Office Supervisors, mine inspectors, and investigators. District Managers cited various data sources for conducting the screening reviews including (1) computer printouts showing the mine's compliance history relative to the types of enforcement action noted in 30 CFR 104.2(a); (2) information in mine files such as prior inspection reports and inspector's notes; (3) special assessment and enhanced assessment action; (4) special investigation activities; and (5) other information resulting from inspector debriefings. In August 1992, MSHA identified 10 specific items to be reviewed for each coal mine in conducting a POV screening (Coal Mine Safety and Health (CMS&H) Memo HQ-92373-S). After completing the screening, Coal District managers were to send a copy of each mine’s compliance record to the mine operator (regardless of whether the District Manager believed that a potential pattern of violations existed) to assist operators in
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designing programs to “reverse any unsatisfactory trends.” The transmittal was also to inform the mine operator of the MSHA programs available to assist in improving the mine’s compliance record. In January 1993, MSHA required that each Coal District complete and send to the Administrator a standard report summarizing the District’s POV activity (CMS&H Memo HQ-93-025-S). It also required that all Potential POV letters be sent in draft to the Administrator’s office for review before issuance to a mine operator. In April 2002, the Acting Metal/Nonmetal Administrator sent each of his District Managers a list of mines that might meet the criteria for issuance of a notice of potential POV. The mines had been identified through a review of selected enforcement data conducted by the Administrator’s office. District Managers were instructed to (a) review their mine files for each of the listed mines and, after considering specific factors; (b) prepare a warning list, (c) mail warning notices to the identified operators, (d) work with the operators to address repeat violation problems, and (e) report to the Administrator on their efforts. While some District Managers recalled receiving this memo, they did not have records of any actions they had taken. 2007 POV Screening Criteria and Scoring Model: Following the fatal accidents at Sago, Darby, and Aracoma mines in early 2006, MSHA began work on developing a national POV screening process based on quantitative data. MSHA’s Internal Review Report on the Sago mine accident had concluded that POV criteria were ineffective and recommended that MSHA revise its POV screening criteria. The then Assistant Secretary wanted a system that would (a) identify those mines that District Managers saw as “problem mines,” (b) leave little room for subjectivity and criticism from mine operators, and (c) afford mine operators “due process.” To begin the process 3 , a group of MSHA Headquarters personnel met on several occasions and discussed mine characteristics that might be used as the basis for a more empirical model to identify mines showing a potential pattern of violations. The group discussed different configurations of factors contained in the Initial Screening portion of the POV regulation (30 CFR 104.2). This larger group was ultimately reduced to a “committee of three,” including the then Assistant Secretary. These three individuals conducted numerous “brainstorming” sessions on various possible criteria. They (a) consulted provisions of the Mine Act (104(e)), the POV regulations (30 CFR 104), and the preamble to that Final Rule; (b) reviewed inspection and violation records for the previous 5-10 years; and (c) used computer applications to manipulate and analyze various enforcement data. They tried different combinations of criteria until they generated a list of mines that they believed MSHA could defend as having been subjected to various enforcement methods, but still were not in compliance.
3

MSHA did not prepare or maintain records of this process. As a result, the information presented is based on interviews with two of the three MSHA officials involved in this project. The third participant, the then Assistant Secretary, has since retired and did not make himself available to be interviewed.

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After finalizing the results of their efforts into the POV model, the committee briefed other MSHA officials and representatives of the Office of the Solicitor (SOL). Some District Managers recalled discussions and presentations at meetings about MSHA’s decision to unveil and use new POV screening criteria. But generally, District Managers said they first learned of the new POV criteria and a scoring model (Appendix D) when, in June 2007, they received a list of mines in their District that had been identified to receive a notice of a potential Pattern of Violations. MSHA’s Office of Assessments used a computer application based on the newly developed POV model on five separate occasions between June 2007 and September 2009 to generate a list of mines with a potential Pattern of Violations. MSHA officials stated that the screening criteria remained unchanged throughout these five analyses. However, our audit found that in its original use of the POV model, MSHA required that a mine have at least two "elevated enforcement actions” (i.e. 104(b), 104(d), or 107(a)) issued during the most recent 12 months of the review period while in all subsequent uses of the POV model this criteria was changed to at least two "elevated enforcement actions” during the entire 24 month review period. MSHA officials were unaware that this difference had existed and could not explain why the criterion had changed. Initial Screening Performed by MSHA’s POV Computer Application: The five POV analyses that MSHA conducted between June 2007 and September 2009 identified a total of 89 mines as meeting the POV criteria. Mines Identified by POV Computer Application Metal / Coal Total Nonmetal 6 2 8 20 1 21 15 4 19 24 2 26 14 1 15 89

POV Cycle 1 2 3 4 5 Total

24-Month Period Reviewed 04/01/05 – 03/31/07 10/01/05 – 09/30/07 04/01/06 – 03/31/08 01/01/07 – 12/31/08 09/01/07 – 08/31/09

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MSHA uses the following status codes to classify mines: Status Code Active Abandoned Abandoned / Sealed Intermittent New Mine Non-Producing / Active Temporarily Idle Definition A mine that operates on a full-time basis. A mine that will be abandoned for the foreseeable future. A mine that has been permanently abandoned and sealed. A mine that can reasonably be expected to operate sometime during the year. These operation times vary due to the demand for product or seasonal conditions. A mine that has been assigned a Mine ID but no physical development has begun. A mine where production has not yet begun or has ceased, but employees perform some work at the mine. A mine that has been temporarily idled (used by Coal only).

Workers can still be present in mines that are not in an “active” status. For example, mines in a “non-producing/active” status may have workers performing maintenance or other tasks in the mine. Mines in an “intermittent” status would likely have workers in the mine at various times of the year. It is important to note that in performing these initial screenings, MSHA automatically excluded any mine not in an “active” status. As a result, eight additional mines that met all of MSHA’s stated POV screening criteria were not considered for potential POV evaluation during the five analyses because they were in a status other than “active.” Specifically, 5 mines were in a “non-producing/active status” and 3 were in a “temporarily idle” status. While it may be appropriate to remove a mine from the potential POV list after the initial screening process based on the consideration of non-quantitative factors, MSHA should not have excluded a mine during the initial screening process simply because it was not in an “active” status. MSHA’s responsibility is to assure that mine operators protect all workers from mining hazards at all times, regardless of whether a mine operates on a full-time basis or is producing any product at all. Whenever workers are present in a mine, the possibility of safety hazards and a pattern of violations exist. Thus, MSHA’s exclusion of certain mines from POV analysis by restricting its initial screening process to only mines in an active status potentially placed workers at risk. Based on the computer application results for each POV analysis, the Director of the Office of Assessments then provided the relevant list of mines, including related data from the POV model, to the Coal and Metal/Nonmetal Administrators. The Administrators divided the lists by responsible district office and forwarded the information to the appropriate District Managers. The Administrators’ typically (a) identified the mine(s) to be reviewed, (b) provided the detailed data for each mine related to the model’s selection criteria, (c) provided a copy of the POV model, and
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(d) summarized the process to be followed, including a timeline of critical milestone dates. District Managers first reviewed their list of mines and could, if they deemed it appropriate, provide a written recommendation to their Administrator that a mine not receive a potential POV notification letter based on mitigating circumstances. As discussed in the following section, such recommendations did occasionally occur for various reasons. According to District Managers, they included other District personnel (e.g., Assistant District Managers, Supervisors, Program Analysts, etc.) in evaluating the mines prior to making this decision. The final decision to exclude an identified mine rested with the Administrators. Twenty-One Mines Excluded from Potential POV Notification: Of the 89 mines originally identified by MSHA’s POV computer application from 2007-2009, 21 did not receive potential POV notification letters for reasons summarized below. Reason for Excluding a Mine from Potential POV Notification Quantity limits established by MSHA management Mine had closed or ceased production Recent improvements based on potential POV notice in prior period Recent improvements based on prior potential POV status at related mine Rulings by the Commission changed potential POV finding Total # of Mines Excluded 10 3 6 1 1 21

As we reported in a separate Alert Memo to MSHA’s Assistant Secretary (see Appendix E), 10 coal mines were inappropriately excluded because of limits established by MSHA management. Additional audit work showed that these limits were only established in Cycles 4 and 5. In Cycle 4, the Coal Administrator, with the concurrence of the then Deputy Assistant Secretary for Operations sent a letter to his District Managers instructing them to “… select no more than one mine on the initial screening list per field office and a maximum of 3 mines per district.” In Cycle 5, the Coal Administrator, after again conferring with the then Deputy Assistant Secretary for Operations, sent a letter to his District Managers instructing them to “… select no more than two mines on the initial screening list per field office.” Although the Metal/Nonmetal Administrator used the same letter to his District Managers in Cycle 5, the limitation had no practical impact because so few Metal/Nonmetal mines appeared on the potential POV list. MSHA management viewed these limits as necessary because of resource concerns about the extensive time and effort required to monitor each mine. In responding to our Alert Memo (see Appendix F), the Assistant Secretary agreed that certain mines may have been removed from potential POV lists in the past for reasons other than appropriate consideration of health and safety conditions at those mines. He stated his intention that “… decisions about PPOV and POV enforcement actions will be based solely on what is best for the safety and health of the miners” and that “… MSHA
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will never be placed in a situation where a mine operator avoids being placed on a POV because MSHA lacks resources.” He also stated, however, that MSHA did not anticipate that all mine operators identified through a quantitative or formulaic process would always be placed in POV status. He reasoned that these decisions should always be a combination of initial screening methods and a case-by-case consideration of potential mitigating factors. Furthermore, he pointed out that MSHA continued to conduct an array of inspection activities at the mines identified in our report to protect the safety and health of miners. He added that MSHA had had significant inspector presence at all these mines since the decisions not to place them in potential POV status. Nevertheless, he had requested that MSHA inspect “every one of the producing coal and metal nonmetal mines that were listed by the OIG as having not been placed in potential POV status following an initial screening that identified them as PPOV eligible.” The subsequent inspections 4 resulted in MSHA issuing 63 104(a) citations (including 26 that were S&S) and 1 order. MSHA also provided detailed information about recent inspection activities and results at each of the mines that had been removed from potential POV lists. MSHA reported that 8 of the 10 mines excluded from potential POV status because of resource limitations had subsequently improved their rate of S&S citations and orders, while 2 mines actually had increased their rate of S&S citations and orders. The OIG agrees that POV determinations should not be confined to purely quantitative analyses. The experience, knowledge, and professional judgment of MSHA personnel are important factors in all aspects of a successful enforcement program. However, decisions based on available resources, rather than safety and health considerations, are inappropriate and contrary to the spirit and letter of the Mine Act. It is also important that MSHA define and implement a process for documenting all factors – both quantitative and non-quantitative – used to make POV decisions. Sixty-Eight Mines Sent Potential POV Notification Letters: For the five POV screenings performed from 2007-2009, District Managers sent notification letters to 68 mine operators. These letters provided the operators with the mine’s specific data related to MSHA’s screening criteria and explained the POV evaluation process, including the operator’s ability to (a) request a conference with the District Manager and (b) submit a written plan for improving their rate of S&S violations. If requested, the District Manager was required to conduct a conference with the operator within 10 days. If the operator submitted a written corrective action plan, the District Manager reviewed it and provided feedback, if necessary, to the operator (see Objective 2, p. 14 for a further discussion of MSHA’s review of these corrective action plans). Inspectors then conducted a “Regular Safety and Health Inspection” of the entire mine within 90 days of the date the operator submitted the written corrective action plan.
4

MSHA conducted inspection at fourteen mines. Six additional mines were not inspected because they had been placed in non-producing, temporarily idle, or abandoned status.

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According to District Managers, they monitored these inspections along with their Assistant District Managers and Field Supervisors. In one District that we visited, the District Manager received and reviewed every citation (and the related inspector’s notes) issued to the potential POV mines. After the District had begun this inspection, MSHA’s Office of Assessments produced and sent the District Offices a weekly report for each potential POV mine showing that mine’s rate of S&S citations and orders since the beginning of the inspection. The report also showed the two improvement metrics that MSHA tracked in determining whether a mine had sufficiently improved to avoid POV status. Mines had to either reduce their rate of S&S citations and orders (1) by 30 percent or (2) to the national average for mines of a similar type and classification. At the conclusion of the inspection, the District Managers provided a written recommendation to their Administrator of whether each potential POV mine had met improvement goals to avoid being placed in POV status. Nine Mines Recommended for POV Notice: Of the 68 mines that received potential POV notification letters, District Managers recommended that 9 be given a POV notice after completing the evaluation period. However, for a variety of reasons listed below, MSHA did not enforce its POV authority against any of these mines. # of Reason POV Recommendations Did Not Result in POV Notice Mines 3 S&S citations / orders modified as a result of review by and conferences with the Department’s SOL* 2 S&S citations / order modified by the Commission prior to issuance of POV notice 1 New mine owner was granted additional time to implement improvements 2 Metal/Nonmetal Administrator decided not to issue a POV notice based on non-quantitative factors (e.g., employee training, safety audits conducted by the mine operator) 1 S&S citations / orders modified by the Commission after issuance of POV notice
* Anticipating that mine operators would challenge MSHA’s determinations, SOL attorneys reviewed all S&S citations issued to those mines recommended by a District Manager for POV status. Conferences were held with the Administrator and District enforcement personnel to discuss any concerns that the SOL attorneys had about the appropriateness or defensibility of the S&S designation on a citation or order. These discussions sometimes resulted in citations or orders being modified, on the advice of the SOL attorneys, to remove the S&S designation.

Efforts to Redesign the POV Criteria and Procedures: In November 2009, MSHA began internal discussions about the need to revise the pattern of violationscriteria and procedures. In testimony before the U.S. House Committee on Education and Labor on February 23, 2010, the Assistant Secretary stated:

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To encourage mine operators to take more responsibility for the safety and health of their workers, MSHA will evaluate ways to improve the use of effective mine safety and health management programs by mine operators, particularly those that may be subject to the application of the pattern of violations criteria pursuant to section 104(e) of the Mine Act. We are … reviewing the current pattern of violation criteria contained in [regulations] … considering a review of the pattern of violation process to determine whether our current approach is the best one for providing timely protection for miners. In its Semiannual Regulatory Agenda posted April 26, 2010, MSHA described plans to issue a Notice of Proposed Rulemaking by January 2011 to … review [pattern of violations] regulations with the goal of simplifying them to improve the process and to improve consistency in the application of the pattern of violations notice. In summary, during the 32 years that MSHA has had Pattern of Violations authority, it has never successfully used it against a mine operator. MSHA allowed the rulemaking to stall as stakeholders argued differing views on implementation. Moreover, for many years after regulations were in place MSHA relied on District personnel to interpret and carry out those regulations. Only during the past few years had MSHA used a standardized method based on quantitative data for identifying potential POV mines. However, those analyses have proven to be complex and unreliable. Moving forward it is imperative for MSHA to ensure that POV criteria and procedures are transparent and well reasoned. Objective 2 — Did MSHA timely and consistently review and monitor mine operators’ POV corrective action plans? Operator corrective action plans were given little importance in MSHA’s POV process. POV Regulations give a mine operator “reasonable opportunity” (i.e., up to 20 days after receiving notification of a potential pattern of violations) to “institute a program to avoid repeated significant and substantial violations at the mine” (30 CFR 104.4). The regulations do not require a written plan. However, MSHA’s policy, established through the Pattern of Violations Procedures Summary described the regulation as an opportunity to submit “… a written corrective action plan to institute a program to avoid repeated significant and substantial violations at the operation” [text bolded for emphasis]. Even though MSHA has not provided written guidance to either their own personnel or to mine operators about the nature or content of these written corrective action plans, we were told by MSHA officials (at both the national and district levels) that plans should address the specific areas (e.g., ventilation, roof control, coal dust, etc.) that caused a mine to be identified as having a potential pattern of violations.
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If a mine operator did submit a written corrective action plan, MSHA’s subsequent inspection of the mine was to be completed within 90 days “from the date the operator submitted the corrective action plan.” However, if an operator did not submit a written corrective action plan, MSHA was to complete an inspection within 60 days from the date of the issuance of the notification of potential Pattern of Violations. Thus, by submitting a written plan, no matter how minimal its content, a mine operator obtained additional time before MSHA made a determination of the mine’s POV status. Most mine operators chose to submit a written corrective action plan. But our review of a sample of written corrective action plans submitted to two MSHA Coal districts showed that plans accepted by MSHA ranged from a one-page memo with several brief bulleted action statements to an 80+ page document. While MSHA District personnel did review and discuss with mine operators the plans they submitted, MSHA did not approve, disapprove or otherwise monitor these plans. In addition, the nature and basis of MSHA’s reviews also varied based on each District Manager’s interpretation of the POV criteria and process. MSHA did not verify the implementation of an operator’s written POV corrective action plan. In fact, District Managers told us that unlike other mine plans that an operator is required to submit for MSHA’s approval (e.g., roof control plan, ventilation plan, training plan, etc.) the corrective action plan is not an enforceable plan. Rather, MSHA’s monitoring and evaluation of a mine it had identified for potential POV status was primarily focused on the rate of S&S violations issued during a subsequent inspection of the entire mine regardless of whether a corrective action plan was submitted or implemented. As a result, MSHA could not demonstrate that these corrective action plans had any role in subsequent declines in violation rates. Since mine operators receive a benefit from submitting a written corrective action plan (i.e., additional time to address safety and health violations), MSHA needs to assure that the plan is more than a perfunctory exercise and consider whether these plans should be required. Objective 3 — Did MSHA’s POV computer application contain errors in addition to the one identified and reported by MSHA after the Upper Big Branch Mine-South accident? Three logic errors caused unreliable results from POV computer application. MSHA’s POV computer application, implemented in 2007 in connection with the POV model, contained logic errors, inconsistencies with the stated selection criteria, and one other anomaly. These deficiencies occurred because the computer application was not developed, tested, maintained, and documented in the disciplined and structured manner normally associated with major computer applications. Because MSHA’s enforcement data changes constantly and MSHA did not maintain historic copies of the
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data, we could not run a corrected program against the same enforcement data that MSHA used in completing the five POV analyses from 2007–2009. Therefore, it was not possible to determine whether these computer application discrepancies affected the specific outcomes of those analyses. However, we were able to demonstrate that correcting these deficiencies produced significantly different results when run against a “test” copy of MSHA’s enforcement data. Since MSHA does not intend to use the current computer application for future POV analyses, these discrepancies should have no direct impact on future POV analyses. However, it is important to understand the types of problems that occurred in the past in order to prevent them in any future development process. See Appendix G for the technical details of the items summarized below. Overview of MSHA’s POV Computer Application: MSHA’s POV model was based on a computerized summary and analysis of selected enforcement data contained in MSHA’s Standardized Information System (MSIS). Each night, MSHA creates a Data Warehouse from information in MSIS. 5 The Data Warehouse is available through MSHA’s network to authorized MSHA users for use in performing a wide variety of analyses, including POV screening. The POV computer application actually consisted of three components: (1) a Basic query program (consisting of 46 individual sub-queries) and Repeat Violations query program used to extract and summarize data from the Data Warehouse, (2) an electronic spreadsheet that receives the extracted data and computes additional data values based on the extracted data, and (3) filters in the electronic spreadsheet that screen out mines that do not meet specified criteria. The program was designed to produce a list of mines that meet all of MSHA’s initial screening and pattern criteria. MSHA used the POV computer application to produce a list of potential POV mines on five separate occasions for the 24-month periods ending: • • • • • March 31, 2007 September 30, 2007 March 31, 2008 December 31, 2008 August 31, 2009 (Cycle 1) (Cycle 2) (Cycle 3) (Cycle 4) (Cycle 5)

MSHA used the same logic and programming syntax for all five cycles. However, because MSHA could not locate a copy of the electronic spreadsheet produced in Cycle 1, it was not possible to validate the formulas and filters used during that cycle. On April 13, 2010, following the Upper Big Branch Mine-South accident, MSHA discovered and reported a logic error in the Basic query program. MSHA reported the error incorrectly excluded Upper Big Branch Mine-South from the list of potential POV mines produced in Cycle 5, and did not affect any other underground coal mines.
5

Prior to August 2008, MSHA updated its Data Warehouse on a weekly basis.

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Logic Errors: In all five cycles for both Coal and Metal/Nonmetal, 4 of 46 sub-queries in the Basic query and the Repeat query contained a value that could have caused a vacated citation to be counted as if it were a valid, final citation. As a result, the program could have over counted citations for a specific mine. In all five cycles for both Coal and Metal/Nonmetal, 5 of 46 sub-queries in the Basic query were missing a value that could have caused citations and orders associated with a prior owner of the mine to be counted as if they were associated with the current owner. As a result, the program could have overcounted citations for a specific mine. In Cycles 3–5 for Metal/Nonmetal, the electronic spreadsheet formula intended to provide the total number of S&S 104(d) final orders at each mine for the 24-month review period incorrectly sums two columns that represent the 104(d) final orders that may contain 104(d) final orders that are not S&S. As a result, the list of potential POV mines may have included a mine that did not meet the screening criteria for S&S 104(d) final orders. Misstated Criteria: In all five cycles for both Coal and Metal/Nonmetal, the logic in 2 of 46 sub-queries in the Basic query did not count all 104(b) orders (failure to abate) as required by one of MSHA’s stated screening criterion. The screening criterion stated that a mine had to have “A minimum of two ‘elevated enforcement’ final orders of the Commission, [i.e., type action is 104 (b), 104 (d) or 107 (a)] during the 24-month review period.” But, the program logic only counted final 104(b) orders if they were issued to replace an S&S citation or order. Since the stated criterion did not restrict 104(b) actions to only those that replaced an S&S citation or order, we initially concluded that the program was potentially excluding 104(b) orders that should have been counted. But MSHA officials stated that the program logic correctly represented what MSHA had intended. According to MSHA, the published criterion was misstated and should have been written as “A minimum of two ‘elevated enforcement’ final orders of the Commission, [i.e., type action is 104(b) replacing an S&S citation, 104(d) or 107 (a)] during the 24-month review period.” Similarly, in Cycles 2–5 for both Coal and Metal/Nonmetal, two separate formulas in the electronic spreadsheet were inconsistent with MSHA’s stated screening criteria. One screening criteria stated that a mine had to have at least 10 (surface and facility) or 20 (underground) S&S citations issued during the review period. Another stated that a mine had to have at least 10 (surface and facility) or 20 (underground) S&S citations that were final orders of the Commission during the review period. However, the formulas that tested these values used the Boolean operator “greater than” (>). To correctly match the stated criteria, the Boolean operator should have been “greater than or equal to” (≥). We initially identified this as a logic error. But MSHA officials stated that these formulas also correctly represented what MSHA had intended the screening criteria to be.
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According to MSHA, the published criterion was misstated and should have been written as “more than” instead of “at least.” Given MSHA’s statements, the queries and formulas used did not require correction. However, these misstatements resulted in mine operators and the public having an incorrect understanding of the screening criteria being used by MSHA to identify mines with a potential POV. Anomaly: In Cycles 3-5 for both Coal and Metal/Nonmetal, we identified one other concern with an electronic spreadsheet formula that, while not an error in programming logic, contains a risk of producing incorrect results. The formula matches each mine identification number against mine identification numbers in a separate list of mines having more than five S&S violations of the same standard. This list of repeat violations is produced by the Repeat Violations query and varies in length for each POV cycle. If a match is found, the number of repeat violations is placed in the spreadsheet cell. For the formula to work properly, it must define the location of the list of mines to be searched. In each spreadsheet used in Cycles 3 – 5, the formula used the parameters of the list produced in Cycle 2, which resulted in the formula defining an area that was larger than the actual list to be searched. Since the defined area was larger than the actual list, no error resulted. However, had the Repeat Violations query produced a list longer than the one used in Cycle 2, the formula would have incorrectly ignored the data outside the stated parameters. This situation indicates a lack of proper controls in maintaining the integrity of the spreadsheet formulas. Logic Errors Impact Which Mines Are Put on Potential POV Lists: Because MSHA’s Data Warehouse is updated daily and MSHA does not maintain historic copies of the Data Warehouse, it was not possible to perform a POV analysis against the enforcement data as it existed on the days that MSHA had performed its five past POV analyses (Cycles 1-5). Therefore, we could not determine what, if any, specific changes would have resulted from correcting the errors that we identified and re-performing those analyses. However, to demonstrate that these changes could produce results different from MSHA’s uncorrected program, we ran both MSHA’s uncorrected program and the OIG’s corrected program against a copy of the Data Warehouse as of May 10, 2010. MSHA’s uncorrected program produced a list of 17 mines for potential POV evaluation – 12 coal mines and 5 metal/nonmetal mines. The OIG’s corrected program, run against the exact same data, produced a list of 21 mines for potential POV evaluation – 16 coal mines and 5 metal/nonmetal mines. The resulting lists of metal/nonmetal mines were identical. However, for the analysis of coal mines, the MSHA list contained one mine that was not on the OIG list and the OIG list contained five mines that were not on the MSHA list.

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The magnitude and nature of the variations in results between the uncorrected and corrected applications would likely fluctuate if run on various dates over a period of time. This would be caused by changes in the enforcement data, specifically to the data elements impacted by the identified errors. However, the test results show that the unidentified logic errors had a potential to incorrectly include mines that had not met the POV screening criteria or exclude mines that had met the POV screening criteria. As MSHA moves forward with its plans to redesign the POV screening criteria and procedures, it is critical that any related computer application provide accurate results. To minimize the risks of unreliable results caused by programming errors, MSHA must develop, test, maintain, and document any POV computer application in a structured and disciplined manner. Objective 4 — Was MSHA’s enforcement data sufficiently reliable to support accurate POV analysis? Data reliability tests discovered no deficiencies in accuracy or completeness, but delays in laboratory test results are a problem. We found nothing in our various system and data test results to question the overall reliability of the data used by MSHA to perform the initial screening and pattern of violations determinations under its POV model. We did, however, identify delays in MSHA’s testing of rock dust samples in underground coal mines that could cause critical delays in MSHA identifying serious safety hazards. Data Reliability: We successfully tested the data entry controls and a statistical sample of data records for the key data elements that MSHA used in performing its POV screenings from April 1, 2008–March 31, 2010. Nothing in the test results raised concerns about the reliability of the data. MSHA’s POV computer application used 70 unique data elements from MSHA’s Data Warehouse to analyze each mine’s enforcement history against the screening criteria in MSHA’s POV model (see Appendix H for a complete listing of these data elements). Based on the manner and the number of times each data element was used by the computer application, we determined that 55 of the 70 data elements were key in determining program’s results. These key data elements were collected into the integrated MSIS through five different input systems as summarized below. # of Key Data Elements IPAL (inspector laptop) 30 MSIS User Interface - Enforcement Interface 2 MSIS User Interface - Assessment Interface 6 MSIS e-Gov Interface 12 MSIS User Interface - Part 50 Interface 5 Total 55 Input Entry Control Point
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Focusing on the 55 key data elements, we documented (a) the data processing steps and data flows and (b) the control points, objectives, and techniques. We successfully completed tests of these five input entry points for consistency, effectiveness in validating data, and reporting of errors for correction prior to data acceptance. The testing included value checking by entering blanks, non-numeric, non-alpha, out-of-range, and illogical relationships. We also successfully completed tests for accuracy and completeness of a random statistical sample of active mine information covering the 55 key data elements, including tracing to source information and/or initial input. Delays in Testing Rock Dust Samples: While evaluating controls over various data input sources, we identified occasional delays in MSHA’s testing of rock dust samples at its National Air and Dust Laboratory (NADL) in Mt. Hope, West Virginia. While these delays did not impact the overall reliability of enforcement data used in the POV model, they did increase the risk that MSHA did not timely identify serious safety hazards in underground coal mines. Safety standards (30 CFR 75.402) require mine operators to “rock dust” mines to dilute the coal dust in the mine atmosphere and prevent the propagation of coal dust explosions. This typically involves dusting of underground areas with powdered limestone. Rock dusting must assure that the incombustible content of coal dust, rock dust, and other dust is maintained at prescribed minimum levels (30 CFR 75.403). Since mine inspectors do not currently have a way to measure compliance with this standard on-site during an inspection, they collect and send samples to the NADL. Using a standard protocol, lab personnel tested the samples and reported the results to the mine inspector via email. Based on the reported results, the inspector determined whether a violation had occurred and a citation should be issued. According to lab personnel, fluctuating workloads and the laboratory’s recent participation in the National Institute for Occupational Safety and Health (NIOSH) evaluation of a portable Coal Dust Explosibility Meter (CDEM), have affected how quickly rock dust samples are tested after they are received. During the spring and summer months, rock dust samples are normally tested and the results are reported to mine inspectors in 2-3 days. However, during fall and winter months, inspectors collect a higher volume of samples because cold air dries out mine surfaces and increases the risk of explosions. During these periods of increased risk and workload, it could take 2-3 weeks to test and report results. MSHA has had no performance standard for the timeliness of testing these samples. In addition, during MSHA’s participation in the NIOSH project, normal lab tests were sometimes delayed until after samples could first be tested with the CDEM.

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We have no evidence that coal dust contributed in any way to the accident at Upper Big Branch Mine-South on April 5, 2010. But the handling of rock dust samples from Upper Big Branch Mine-South illustrates the critical importance of completing these tests in a timely manner 6 . On March 15, 2010, a mine inspector collected 14 rock dust samples from Upper Big Branch Mine-South during an inspection. NADL’s laboratory tests on those samples were not completed for more than three weeks – this was two days after the April 5, 2010 accident. The results showed that one of eight samples tested (six samples contained too much moisture to test) did not meet regulatory standards. Based on these results, MSHA issued an S&S citation on April 13, 2010. The chronology of events related to these samples is summarized in the following table. Chronology of Events Testing of Rock Dust Samples from Upper Big Branch Mine-South Date Event 03/15/2010 Mine inspector collected rock dust samples at mine 03/16/2010 NADL received rock dust samples 03/31/2010 MSHA personnel tested rock dust samples using CDEM as part of NIOSH project 04/05/2010 Accident at Upper Big Branch Mine-South 04/06/2010 NADL personnel prepared rock dust samples for NADL testing 04/07/2010 NADL personnel completed tests of rock dust samples 04/08/2010 NADL transmitted rock dust test results to mine inspector via email 04/13/2010 MSHA issued S&S citation for violation of 30 CFR 75.403 On July 29, 2010, in response to our concern that NADL lacked a performance standard for timely testing and reporting of rock dust samples, the Coal Administrator directed lab personnel to implement procedures to assure that rock dust samples were tested and the results were reported to mine inspectors within 19 calendar days of being received at the lab. Although MSHA took prompt action on the concern we raised, 19 days does not convey an appropriate level of urgency for completing tests related to a mine’s compliance with a standard for preventing the propagation of coal dust explosions. If samples can be tested in 2–3 days during portions of the year, it seems unreasonable to set a standard that allows testing to take up to six times longer during the time of the year when the associated risk is greatest.

6

The OIG provided information we gathered on the Upper Big Branch Mine-South rock dust samples to MSHA’s Accident Investigation team, which is ultimately responsible for determining the cause of the accident. We also provided it to MSHA’s Internal Review team, which is examining MSHA’s actions with respect to this mine.

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Objective 5 — How Would the Results of MSHA’s POV Model be Affected by Changes in the Current Criteria? Some criteria significantly changed screening results and improvement success. It is MSHA’s responsibility to determine the criteria and procedures that best identify mines having a pattern of violations. In an effort to provide information that may be helpful in MSHA’s stated goal to revise the current criteria and procedures, we conducted several “what if” analyses aimed at demonstrating the impact of various changes to the current criteria on the number of mines (a) identified as having a potential Pattern of Violations and (b) meeting MSHA’s improvement metrics. Modifying Some Screening Criteria Significantly Affects Results: MSHA’s POV model required that a mine meet all of the 10 defined screening criteria to be identified as having a potential POV. Eliminating or modifying some of these individual criteria significantly impacted the number of mines identified as having a potential POV, while others had little impact. We used a static copy of MSHA’s Data Warehouse (as of May 10, 2010) and MSHA’s current POV model to produce a list of potential POV mines as a baseline. For each scenario we eliminated or modified one or more of the existing criteria and ran the revised computer application against the same Data Warehouse to produce a new list of potential POV mines. We compared the results of each scenario against the baseline results to measure the extent to which the number of mines identified increased or decreased (see Appendix J). Eliminating the POV model’s requirements for final orders resulted in the most significant change. This modification (scenario 12) produced a list of 91 potential POV mines versus the baseline list of 16. Reducing the period of enforcement actions reviewed from 24 months to 12 months (scenario 11) produced significant changes in both new mines being added to the baseline list (+20) and original mines dropped from the baseline list (-12); 9 mines remained the same. Other scenarios that produced significant increases in the number of mines identified for potential POV analysis included (1) eliminating or reducing the ratio of citations/orders issued in the second year of the review period to the first year of the review period (scenarios 3 and 3a), (2) eliminating the comparison of a mine’s rate of S&S citations to the national rate for similar mine (scenario 4), and (3) eliminating the requirement for at least one final S&S citation for an unwarrantable failure (scenario 7). Eliminating the requirement for at least 10 S&S citations (surface mines and facilities) or at least 20 S&S citations (underground mines) had no effect on the results (scenario 1). Fewer Potential POV Mines Met MSHA’s Improvement Metrics Over Extended Evaluation Periods: While most potential POV mines met MSHA’s improvement metrics

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within the first inspection period following receipt of their notification letter, fewer mines would have satisfied those standards if evaluated over a longer period of time. MSHA monitored and evaluated the rate of S&S citations and orders at mines given a potential POV notification for the period covering one complete inspection following the notification. Mine operators must have met either of two metrics: (1) reduce the rate of S&S citations and orders by at least 30 percent, or (2) reduce the rate of S&S citations and orders to at least the national average for similar mines. In most cases, the first standard was the easier one to meet. For the mines that received potential POV notification letters from MSHA from 2007-2009 and whose rate of S&S citations and orders were subsequently monitored by MSHA 7 , 61 out of 65 (94 percent) successfully met one of the improvement metrics. To evaluate whether mine operators sustained improvement levels beyond the first inspection period, we used the same computer application used by MSHA to compute each potential POV mine’s rate of S&S citations for two additional inspection periods. The results indicate that as the evaluation period is extended, fewer mines satisfy the required improvement metrics. After two inspection cycles, 56 out of 63 (89 percent) still satisfied one of the improvement metrics. After three inspection periods, the success rate decreased to 51 out of 60 (85 percent). We performed a similar analysis for 8 of the 10 mines 8 that MSHA excluded from the Potential POV lists because of limits set by MSHA management. Because they were not sent potential POV notification letters, these mines were not subjected to the specific POV monitoring or improvement metrics. After one inspection period, 3 of 8 (38 percent) mines had met one of the improvement metrics. At the end of the second inspection period, the success rate remained at 3 of 8 (38 percent). For the mines that had completed a third inspection period, 3 of 6 (50 percent) met the improvement metrics. Results indicate that a much lower percentage of these mines met MSHA’s improvement metrics than those subjected to the potential POV evaluation process. Changes to MSHA’s criteria for identifying potential POV mines can result in significantly different results. Therefore, as MSHA moves to revise its POV enforcement program it is critical for MSHA to ensure that POV selection criteria are transparent, reasoned, and suitable for identifying mines whose owners demonstrate the “disregard for the health and safety of miners through a pattern of violations” as intended by Congress. In addition, MSHA should examine its current process for monitoring mine operators to increase the likelihood that improvements are not temporary.

7 8

MSHA did not evaluate mines that had ceased operations or that were under new ownership. Two mines were excluded from our analysis because they were under new ownership.

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RECOMMENDATIONS We recommend that the Assistant Secretary for Mine Safety and Health: 1. Evaluate the appropriateness of eliminating or modifying limitations in the current regulations, including the use of only final orders in determining a pattern of violations and the issuance of a warning notice prior to exercising POV authority. 2. Seek stakeholders’ input (e.g., miners, miner representatives, mine operators, etc.) in the development of POV screening criteria, but assure that the process, including rulemaking, is not stalled or improperly affected because of competing viewpoints. 3. Assure that POV selection criteria are sufficiently transparent to allow stakeholders to reasonably determine an individual mine’s status at any point in time. 4. Assure that POV decisions are based solely on the health and safety conditions at each mine. 5. Implement a standard process for documenting all factors – both quantitative and non-quantitative – used to make POV decisions. 6. Establish guidance on the preparation, review, and monitoring of mine operators’ POV corrective action plans. 7. Eliminate the requirement that mines be in an “active” status to be screened for a pattern of violations. 8. Use system development life cycle techniques (analysis, design, test, implement, and maintain) to reduce the risk of errors in any POV-related computer application. 9. Re-evaluate the performance standard for timely completion of laboratory tests on rock dust or any other samples that yield enforcement related data, including addressing workload fluctuations and resources needs. 10. Examine its current process and metrics for monitoring the improvement of potential POV mines to increase the likelihood that improvements are not temporary. We appreciate the cooperation and courtesies that MSHA personnel extended to the OIG during this audit. OIG personnel who made major contributions to this report are listed in Appendix M.

Elliot P. Lewis Assistant Inspector General for Audit
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Appendices

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Appendix A Background The Mine Safety and Health Administration (MSHA) enforces compliance with mandatory health and safety standards as a means to eliminate fatal accidents, reduce the frequency and severity of nonfatal accidents, minimize health hazards, and promote improved safety and health conditions in the Nation's mines. As required by the Mine Act, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA inspectors conduct recurring inspections of every mine; issuing citations or closure orders when they observe violations. Citations and orders result in monetary penalties to mine operators based on the nature and severity of the offense. During calendar year (CY) 2009, MSHA inspections at the Nation's more than 14,000 surface and underground mines resulted in more than 175,000 citations/orders and assessed monetary fines of approximately $141 million. Among the enforcement tools available to MSHA through the Mine Act is the authority to take enhanced enforcement actions when a mine operator demonstrates a pattern of S&S violations at a mine. After notifying a mine operator that such a POV exists, MSHA has the authority to order the withdrawal of miners from areas of the mine affected by any S&S violation until the violation is abated. MSHA defined the implementation of POV authority through regulations (30 CFR 104) in 1990. From 1990 until early 2007 MSHA applied the authority in a decentralized manner through its district offices. In 2007, MSHA developed and implemented a POV model on a national basis. Using an empirical analysis of enforcement data, the model identified mines showing a potential pattern of violations based on MSHA’s selected criteria. On February 23, 2010, in testimony before the House Committee on Education and Labor, MSHA’s Assistant Secretary stated that MSHA was reviewing the POV criteria contained in the current regulations and was considering a review of its POV process. On April 5, 2010, MSHA publicly announced an accident at Performance Coal Company’s Upper Big Branch Mine-South in Montcoal, West Virginia resulted in the deaths of 29 miners. Public and media scrutiny of the mine’s record of safety and health violations raised questions about (a) why MSHA had not exercised its POV authority against Performance Coal Company at Upper Big Branch Mine-South, and (b) whether MSHA’s POV process was effectively identifying repeat violators. On April 13, 2010, MSHA announced that an error in the computerized tools it had developed to execute its POV model had caused Upper Big Branch Mine-South to incorrectly be omitted from the most recent list of potential POV mines. This raised additional questions about the accuracy of MSHA’s analysis and the reliability of the underlying enforcement data.

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In an April 15, 2010 letter, several Members of Congress requested that the OIG review and report on MSHA’s development and implementation of its POV authority, including the accuracy of the current POV model and its underlying data. On April 27, 2010, again testifying before the House Committee on Education and Labor, MSHA’s Assistant Secretary concluded that “the current ‘pattern of violations’ process is broken and must be fixed.”

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Appendix B Objectives, Scope, Methodology, and Criteria Objective The OIG performed an audit to assess what progress MSHA had made in implementing the Pattern of Violations (POV) authority contained in the Federal Mine Safety and Health Act of 1977. Specifically, we conducted audit work to determine (a) how MSHA had developed its POV rules, criteria, and procedures and implemented its POV authority; (b) whether MSHA timely and consistently reviewed and monitored mine operators’ POV corrective action plans; (c) whether MSHA’s POV computer application contained errors in addition to the one identified and reported by MSHA after the Upper Big Branch Mine-South accident; (d) whether MSHA’s enforcement data was sufficiently reliable to support accurate POV analysis; and (e) the affects on the results of MSHA’s POV model from various changes in the criteria. Scope Our audit work covered MSHA’s development, implementation, and use of POV authority from its inception in the Mine Act (1977) through May 10, 2010. Our work related to the reliability of MSHA’s enforcement data included 70 data elements from MSHA’s Data Warehouse that were used by MSHA’s POV computer application. We performed audit work at MSHA’s National Office in Arlington, Virginia, MSHA’s Data Center in Lakewood, Colorado, and in MSHA District offices in Morgantown, West Virginia; Mt. Hope, West Virginia; and Dallas, Texas. 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 objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives. Methodology To determine how MSHA developed POV regulations, criteria, and procedures, we reviewed available documentation related to MSHA’s rulemaking processes (1980, 1985 and 1989/1990), including the proposed POV regulations, public comments, and the final regulations. Limited records were available. MSHA’s Office of Standards, Regulations, and Variances (OSRV), which coordinates MSHA’s regulatory work, is responsible for maintaining appropriate records. OSRV was able to provide us with inventory lists for 15 boxes of “non-permanent” records related to various MSHA

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rulemaking activities between 1977 and 1989, including those related to POV. However, OSRV could not account for the whereabouts of the associated records. OSRV had prepared these records to be sent to storage at the Federal Records Center, but could not provide evidence that they had actually been sent. The Federal Records Center had no evidence of having received the records. Even had these records been transferred to the Federal Records Center, it is likely that they would have been destroyed prior to our audit under guidelines of MSHA’s “Consolidated Records Disposition Schedule” for Standards and Regulations. According to MSHA’s records inventory lists, these non-permanent records included items such as a POV concept paper, written public comments on the 1980 and 1985 proposed rules, an interagency decision memo concerning MSHA’s withdrawal of the 1980 proposed rule, and guidelines for designating violations as “significant and substantial.” In addition, our search of 27 boxes of “permanent” MSHA records at the Federal Records Center found nothing related to POV, even though one box’s inventory sheet was labeled “Pattern of Violations.” MSHA provided us with copies of transcripts from the two public hearings it held in 1989 as part of its POV final rulemaking process. It obtained these copies from the United Mine Workers of America. We also reviewed policy and guidance materials that MSHA issued after the implementation of the POV regulations. We interviewed two of the three MSHA staff involved in developing the POV model and summarized any related documentation 9 . To determine how MSHA had implemented its POV authority for the period October 1, 1990, to present, we conducted interviews of 16 of 17 MSHA District Managers using a standard set of questions. We did not interview the District Manager in Coal District 1 because no mine in his District had been identified by MSHA’s POV model as having a potential POV and because the District Manager was leading MSHA’s Internal Review of the Upper Big Branch Mine-South accident, so his availability was very limited. We also visited Coal Districts 3 and 4 and the Metal and Nonmetal South Central District, interviewed relevant District staff, and reviewed all available records related to their POV activities. For potential POV mines MSHA identified in its computer analysis, we determined the reasons MSHA did not send potential POV letters to certain mines. To measure the affects on MSHA’s current POV model from various changes to its criteria, we developed and executed a series of “what-if” scenarios. We created a baseline result by executing MSHA’s current POV computer application (corrected for error identified in our audit) against a static copy of MSHA’s Data Warehouse (as of May 10, 2010). For each “what-if” scenario, we eliminated or revised one or more of the

9

The third MSHA participant in this process was the then Assistant Secretary for Mine Safety and Health. Despite our repeated efforts, we were unable to obtain his participation in this audit.

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existing selection criteria, ran the revised computer application against the same copy of MSHA’s Data Warehouse, and compared the results against the baseline results. To evaluate whether potential POV mines monitored by MSHA maintained improved rates of S&S citations and orders beyond the one inspection period evaluated by MSHA, we used MSHA’s computer application to calculated S&S rates for each potential POV mine for two additional inspection cycles and compared the results against the two improvement metrics used by MSHA. To determine if MSHA was timely and consistently reviewing and monitoring mine operators’ POV corrective action plans (CY 2007 to present), we interviewed the District Managers from 16 of 17 MSHA districts that had notified at least one mine of potential POV status during this period. These interviews summarized how these districts interacted with the notified mine operators and how the districts monitored an operator’s progress in improving the mine’s violation rate during the designated improvement period. During site visits to MSHA Coal Districts 3 and 4, we reviewed mine corrective action plans submitted by mine operators. To determine if MSHA’s POV computer application contained unidentified errors, we reviewed (a) the logic and syntax (i.e., queries) used to extract and summarize data from MSHA’s historical enforcement data, (b) the formulas used in electronic spreadsheets to perform tests and computations on the extracted data, and (c) the filters used in electronic spreadsheets to apply MSHA selection criteria against the analytical results for the five analyses that MSHA completed from 2007-2009 10 . Specifically, to analyze the queries we (a) reviewed a user manual for MSHA’s query software; (b) reviewed data dictionaries, data field attributes, and relevant handbook sections provided by MSHA; (c) evaluated the underlying formulas; and (d) prepared process flow charts. When necessary, we obtained explanations from knowledgeable MSHA personnel. To analyze the formulas spreadsheets used in the POV analysis 11 and for the weekly reports 12 , we reviewed all formula logic and syntax based on explanations from knowledgeable MSHA personnel on their intended purpose. To analyze the spreadsheet filters, we compared MSHA’s POV selection criteria to the filter logic and syntax. To demonstrate the impact of any identified errors on the mines identified for potential POV notification, we created a baseline by executing MSHA’s POV analysis against a copy of MSHA’s Data Warehouse produced by MSHA on May 10, 2010. After making appropriate revisions to the queries, formulas, and filters we executed the corrected POV analysis against the same set of data and compared the results to the baseline.

10

For the 24-month periods ending March 31, 2007, September 30, 2007, March 31, 2008, December 31, 2008, and August 31, 2009. 11 MSHA was not able to provide the POV analysis spreadsheet for the 24 months ending March 31, 2007 because it did not maintain the original analysis, only the results. 12 MSHA only used the weekly report queries and spreadsheet for the 24 month period ending August 31, 2009. For all previous POV analysis, MSHA used a query and report combination using the query software.

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To determine the reliability of data used in MSHA’s POV analysis, we used an approach consistent with the Government Accountability Office’s Assessing the Data Reliability of Computer-Processed Data, (GAO-09-680G, July 2009, External Version I). Based on a detailed review we judged 55 of the 70 data elements used in MSHA’s POV computer application to be key in determining whether a mine demonstrated a potential pattern of violations. The 55 key data elements reside in the Data Warehouse as a result of various sources and input processes, including intermediary systems’ processing and data bases prior to final update to the Data Warehouse (see Appendix I for related Data Flow Diagram). We performed the data reliability assessment, focused primarily on the 55 key data elements, by (a) interviewing knowledgeable MSHA computer and program operations personnel about the key data elements, processes and related controls; (b) identifying the sources of the key data elements; (c) documenting the data processing steps and data flows; (d) documenting the control points, objectives, and techniques; (e) testing data entry control points for enforcement, assessments, and accident, injury, employment and production data; and (f) selecting a random statistical sample of active mine information covering the 55 key data elements to determine the accuracy and completeness of the data, including tracing to source information and/or initial input. We tested each primary input entry point covering the 55 POV key data elements for consistency, effectiveness in validating data, and reporting of errors for correction prior to data acceptance. The testing included value checking by entering blanks, nonnumeric, non-alpha, out-of-range, and illogical relationships. We verified the accuracy and completeness of the 55 POV key data elements using a sampling of active mine data covering the period April 1, 2008, through March 31, 2010. We used a random sampling method with stratified design, where appropriate, to provide effective coverage of the units and to obtain precise estimates of the characteristics tested at a 95 percent confidence level and 5 percent error. Auditors traced and compared values in key data element fields in MSHA Data Warehouse to information from source documentation and/or initial input entry points and/or related data bases (i.e., MSIS and Sungard data bases). Criteria Federal Mine Safety and Health Act of 1977, as amended Miner Improvement and New Emergency Response Act of 2006 30 CFR Part 104 – Pattern of Violations Federal Register, Volume 54, No. 102 (May 30, 1989) – Pattern of Violations Proposed Rule Federal Register, Volume 55, No. 147 (July 31, 1990) – Pattern of Violations Final Rule
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Senate Report No. 95-181, Federal Mine Safety and Health Act of 1977 MSHA Program Policy Manual, Volume III, Part 104, Pattern of Violations (Release III-22, February 2003) MSHA Pattern of Violations Procedures Summary MSHA Pattern of Violations Screening Criteria and Scoring Model Government Accountability Office, Standards for Internal Control in the Federal Government, November 1999 National Institute of Standards and Technology Special Publication 800-53 Revision 2, December 2007. National Institute of Standards and Technology Special Publication 800-53 Revision 3, August 2009.

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Appendix C MSHA Documents Related to Pattern of Violations Authority
Document Type Effective / Issued Date

Subject

From

To

Program Policy Letter P91-III-1 CMS&H Memo HQ92-373-S

04/08/91

Guidelines for the Implementation of Pattern of Violations Enforcement Strategy and Procedures, including Pattern of Violations Pattern of Violations Procedures and Reporting to MSHA Headquarters Guidelines for the Implementation of Pattern of Violations Interpretations and Guidelines on Enforcement of the Mine Act – POV Clarification on Enforcement Procedures Pattern of Violations Procedures Review of Respirable Coal Mine Dust Citations for a Pattern of Violations

Coal and Metal/Nonmetal Administrators Coal Administrator

All MSHA employees

08/05/92

Coal District Managers & Division Chiefs Coal District Managers

CMS&H Memo HQ93-025-S

01/29/93

Coal Administrator

Program Policy Letter P93-III-1 Program Policy Manual, Vol III CMS&H Memo HQ96-107-S CMS&H Memo HQ97-050-S Procedure Instruction Letter I99-V11

Re-issuance of PPL P91III-1 05/16/96

Coal and Metal/Nonmetal Administrator

All MSHA employees

All MSHA employees

07/26/96

Coal Administrator Coal Administrator Coal Administrator

Coal District Managers Coal District Managers Coal Enforcement Personnel

05/13/97

03/29/99

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Appendix D MSHA’s Pattern of Violations Screening Criteria and Scoring Model Criteria #1 At least 10 S&S Citations/Orders, at mines classified as Surface and Facility, issued during the 24-month review period. At least 20 S&S Citations/Orders, at mines classified as Underground, issued during the 24-month review period. Criteria #2 At least two “elevated enforcement” actions, [i.e. type action is 104 (b), 104 (d) or 107(a)], issued during the 24-month review period. Criteria #3 The ratio of Citation/Orders issued in the most recent 12 months of the review period to the number of Citations/Orders issued during the previous 12 months of the review is 70% or greater. Criteria #4 The mines’ rate of S&S Citations/Orders issued per 100 inspection hours during the 24-month review period is equal to or greater than 125% of the National rate of S&S Citations/Orders issued per 100 inspection hours for that mine type and classification. Criteria #5 The number of S&S Citation/Orders issued per 100 inspection hours during the last two quarters is greater than the Industry Average for this mine type and classification OR the number of elevated enforcement Citations/Orders issued per 100 inspection hours during the last two quarters is greater than the Industry Average for this mine type and classification. Criteria #6 A minimum of two “elevated enforcement” final orders of the Commission, [i.e. type action is 104 (b), 104 (d) or 107(a)] during the 24-month review period. Criteria #7 At least one S&S 104 (d) issuance that became a final order of the Commission during the 24-month review period. Criteria #8 At least 10 S&S Citations/Orders, at mines classified as Surface or Facility, that are final orders of the Commission during the 24-month review period. At least 20 S&S Citations/Orders, at mines classified as Underground, that are final orders of the Commission during the 24-month review period.

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Criteria #9 The information used to screen mines includes a raw weighted score for each operation meeting the above criteria as follows: a. The number of S&S citations and orders issued per 100 Inspection Hrs. that became final during the 24-month review period times the weight assigned to this factor; plus b. the number of 104(b) (failure to abate) orders issued per 100 Inspection Hrs. for failure to abate an S&S issuance that that became final during the 24-month review period and multiplying by a factor of 5; plus c. the number of 104(d) (unwarrantable failure) citations and orders issued per 100 Inspection Hrs. that became final during the 24-month review period and multiplying by a factor of 5; plus d. the number of 107(a) (imminent danger) orders issued 13 per 100 Inspection Hrs. during the 24-month review period and multiplying by a factor of 5. This raw weighted score is increased by: e. 5%-20% for operations with injury rates above the national average for the same mine type and industry grouping as follows:
Degree 1-4 Injury Rate (IR) Multipliers IR Greater than Nat'l. Avg. and less than or equal to 2 times the Nat'l. Avg. 5% IR Greater than 2 times the Nat'l. Avg. and less than or equal to 3 times the Nat'l. Avg. 10% IR Greater than 3 times the Nat'l. Avg. and less than or equal to 4 times the Nat'l. Avg. 15% IR Greater than 4 times the Nat'l. Avg.

20%

f. 5%-20% for operations with injury severity rates (number of days lost X 200,000 divided by the total work hours reported) above the national average for the same mine type and industry grouping as follows:
Degree 1-4 Injury Severity Rate (ISR) Multipliers ISR Greater than Nat'l. Avg. and less than or equal to 2 times the Nat'l Avg. 5% ISR Greater than 2 times the Nat'l Avg. and less than or equal to 3 times the Nat'l. Avg. 10% ISR Greater than 3 times the Nat'l. Avg. and less than or equal to 4 times the Nat'l. Avg. 15% ISR Greater than 4 times the Nat'l. Avg.

20%

Imminent Danger orders are not assessed and thus do not become “final orders” of the Commission. Therefore, the number of Imminent Danger orders issued is used in this score.

13

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g. 5%-20% for operations with final S&S citations and orders per 100 inspection hours (Violations per Inspector hour (VPIH)) above the 24-month national average for the same mine type and industry grouping as follows:
VPIH Multipliers VPIH Greater than Nat'l. Avg. and less than or equal to 2 times the Nat'l. Avg. 5% VPIH Greater than 2 times the Nat'l. Avg. and less than or equal to 3 times the Nat'l. Avg. 10% VPIH Greater than 3 times the Nat'l. Avg. and less than or equal to 4 times the Nat'l. Avg. 15% VPIH Greater than 4 times the Nat'l. Avg.

20%

The final weighted score must be greater than or equal to the average weighted score for all active mines of the same mine type and industry classification. Criteria #10 Meet one of the following pattern criteria: (1) a history of repeated S&S violations of a particular standard; (2) a history of repeated S&S violations of standards related to the same hazard; or (3) a history of repeated S&S violations caused by unwarrantable failure to comply. Only citations and orders that are final may be considered in determining if these criteria have been met. For a Pattern of Violations review, mines must have at least five S&S citations of the same standard that became final orders of the Commission during the most recent 12 months.

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Appendix E OIG Alert Memo – MSHA Set Limits on the Number of Potential Pattern of Violation Mines to be Monitored

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Appendix F MSHA’s Response to OIG Alert Memo

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Appendix G Technical Details of the Logic Errors, Criteria Misstatements, and Anomaly in the POV Computer Application Queries Our review of the queries used in MSHA’s POV computer application to extract and summarize data from MSHA’s Data Warehouse identified the following logic errors: • 4 sub-queries in the Basic_Query_9-15-2009.qry file and 1 query in the Repeat S&S Finals by CFR 9-16-2009.qry file use the following function statement. (INQprod.tera_violations_vwj.last_action_code IN ('1stDemandReady', '2ndDemandPrinted', 'ApprovedForTreasury', 'Chapter 11', 'Chapter 7', 'Chapter 7 Bankruptcy', 'Citation Vacated', 'Delinquent', 'Final Order Date', 'JusticeSettlement', 'On Hold', 'Paid', 'ProposeUncollectable', 'Recalled From Treasury', 'RecommendTreasury', 'Treasury', 'Uncollectable')) The purpose of this function is to restrict the data extraction to only final citations/orders. 1. The value "Citation Vacated" was incorrectly included in this function statement. Result = possible over count of relevant citations/orders. • 5 sub-queries in the Basic_Query_9-15-2009.qry file are missing one of the following function statements. (INQprod.tera_violations_vwj.occurrence_date >= INQMSIS.mine_tbl.curr_ownr_beg_dt) or (INQprod.enf_time_tbl.date_worked >= INQMSIS.mine_tbl.curr_ownr_beg_dt) The purpose of these functions is to restrict the data extraction to transactions that relate to only the current mine owner. 2. The “current owner only” dates were incorrectly excluded from this function statement. Result = possible over count of citations/orders. Spreadsheet – Filters Our review of the Excel spreadsheet filters used to identify mines that meet all of MSHA’s POV criteria disclosed the following issues:
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•

Column BZ is used for POV criteria filter #1 in the Coal and Metal/Nonmetal POV analyses for the 24 months ending September 30, 2007, March 31, 2008, December 31, 2008, and August 31, 2009. The Excel formula used to generate the values in this column is =IF(BN{current row number}>BM{current row number},"Yes","No") 3. The formula uses the Boolean operator “greater than” (>). However, to correctly represent the screening criteria for filter #1 which required at least 10 S&S citations/orders issued for surface and facility mines or at least 20 S&S citations for underground mines it should have used the Boolean operator “greater than or equal to” (>=). According to MSHA, the intent was to require more than 10 S&S citations/orders issued for surface and facility mines or more than 20 S&S citations issued for underground mines. Result = based on MSHA’s explanation of its intent, the formula used is correct. However, the criteria had been continually misstated since it was first published in June 2007.

•

Column CF is used for POV criteria filter #7 in the MNM POV analyses for the 24 months ending March 31, 2008, December 31, 2008, and August 31, 2009. The Excel formula used to generate the values in this column is =AL{current row number}+AM{current row number} 4. The formula references and adds the wrong columns (AL and AM). The columns referenced contain data on the number of 104(d) final orders for the first 12 months (AL) and the second 12 months (AM) of the review period. However, since the screening criteria for filter #7 requires at least one S&S 104(d) final order during the review period, the formula should reference Column BE (Final S&S 104(d) citations and orders for the 24 review period). Result = inclusion of mines with a final 104(d) order that was not a S&S final 104(d) order. Note: The formula used in Column CF in the spreadsheet used for the Coal POV analysis during these same time periods is correct.

•

Column CG is used for POV criteria filter #8 in the Coal and Metal/Nonmetal POV analyses for the 24 months ending September 30, 2007, March 31, 2008, December 31, 2008, and August 31, 2009. The Excel formula used to generate the values in this column is

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=IF(M{current row number}>BM{current row number},"Yes","No") 5. The formula uses the Boolean operator “greater than” (>). However, to correctly represent the screening criteria for filter #8 which required at least 10 S&S citations/orders that are final for surface and facility mines or at least 20 S&S citations/orders that are final for underground mines it should have used the Boolean operator “greater than or equal to” (>=). According to MSHA, the intent was to require more than 10 S&S citations/orders that were final for surface and facility mines or more than 20 S&S citations that were final for underground mines Result = based on MSHA’s explanation of its intent, the formula used is correct. However, the criteria had been continually misstated since it was first published in June 2007. • Column CH is used for POV criteria filter #10 in the Coal and Metal/Nonmetal POV analyses for the 24 months ending March 31, 2008, December 31, 2008, and August 31, 2009. The Excel formula used to generate the values in this column is =VLOOKUP(C{current row number},’Repeat Violations by Mine’!$A$2:$C$754,3,FALSE) 6. The formula incorrectly defines the length of the table to be referenced as ending in row 754. The actual length of the referenced table will change each time the POV analysis is executed. If the actual table length is less than or equal to 754 rows, no problem occurs. However, if the actual table length should exceed 754 rows, this formula will ignore potentially relevant data. Result = a mine with at least 5 final S&S citations/orders could incorrectly fail to meet this screening criteria. Note: It appears the use of row 754 as a table length is a carry-over from the prior POV analysis performed for the 24 months ended September 30, 2007 where 754 was the correct length of the table. Results of Comparing Original versus Corrected POV Analysis MSHA’s Data Warehouse is updated (i.e., changed) every night 14 with new information. In order to compare results of different versions of MSHA’s POV computer application, we required a static data set. At our request, MSHA provided us with a copy of its Data Warehouse as of May 10, 2010. By executing the original POV computer application and the OIG’s corrected version of the computer application against this static data set,
14

Prior to August 2008, MSHA updated its Data Warehouse on a weekly basis.

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we could be sure that differences in the results were caused by the changes in the computer application, not changes in the underlying data. • Executing MSHA’s uncorrected POV analysis against the May 10, 2010 data warehouse identified 17 mines for potential POV evaluation – 12 coal mines and 5 metal/nonmetal mines. Executing the OIG’s corrected version of the POV analysis against the May 10, 2010 data warehouse identified 21 mines for potential POV evaluation – 16 coal mines and 5 metal/nonmetal mines. In comparing specific mines identified, for Metal/Nonmetal, the MSHA and OIG results matched exactly (same five mines). However, for Coal, the MSHA analysis identified one mine that was not identified in the OIG analysis and the OIG analysis identified five mines that were not in the MSHA analysis. POV Screening Results May 10, 2010 Data Warehouse Uncorrected OIG Corrected POV Computer Application POV Computer Application Mine ID Mine ID Coal mine A 1. Coal mine A Coal mine B 2. Coal mine B Coal mine C 3. Coal mine C Coal mine D 4. Coal mine D Coal mine E 5. Coal mine E Coal mine F 6. Coal mine F Coal mine G 7. Coal mine G Coal mine H 8. Coal mine H Coal mine I 9. Coal mine I Coal mine J Coal mine K 10. Coal mine K Coal mine L 11. Coal mine L 12. Coal mine M 13. Coal mine N 14. Coal mine O 15. Coal mine P 16. Coal mine Q Metal/Nonmetal mine AA 17. Metal/Nonmetal mine AA Metal/Nonmetal mine BB 18. Metal/Nonmetal mine BB Metal/Nonmetal mine CC 19. Metal/Nonmetal mine CC Metal/Nonmetal mine DD 20. Metal/Nonmetal mine DD Metal/Nonmetal mine EE 21. Metal/Nonmetal mine EE

•

•

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

13. 14. 15. 16. 17.

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Appendix H 70 Unique POV Data Elements Tested and Related Descriptions Attribute Field Description (Descriptions taken from MSHA Data Warehouse Data Dictionary) Mine_tbl Qualify with a 'C' if only coal mines are desired. Qualify with an 'M' if only Metal/nonmetal mines are desired. Canvass code associated with the primary commodity code. In the MSIS system, canvass code is known as an industry group code. Values are 1, 2, 5, 6, 7, 8. For Coal breakdown: Canvass cd 1 – Coal (Anthracite) SIC 12310. Canvass cd 2 – Coal (Bituminous) SIC 122200. Canvass cd 2 – Coal (Lignite) SIC 122100. Identification number assigned by MSHA Assessments for a Legal Entity acting as a controller of an operator. If this person is a controller of an operator, this is the controller ID assigned to this person.

* Coal (C) or Metal (M) Mine * Primary Canvass Code

* Controller ID

Controller Name Either the business name or a person's name for the legal entity. Mine name as designated on the Legal Entity ID Form (LID) or Mine Information Form (MIF) * Current Owner Start date of the operating period at the mine. Begin Date * Mine Status Unique code abbreviation for each mine status entered on the MIF. For current mine status. See Mine Status table for mine history. Original codes were 1 character. MSIS values are Active, NonProdActive; Intermittent; Abandoned or AbandonedSealed; NewMine; TempIdle. Use Data Values to select status. Identification number assigned to the mine by MSHA Values are Abandoned, Abandoned and Sealed, Active, Intermittent, New Mine, NonProducing and Temporarily Idled. From the Legal ID (LID) form. The original codes were one character. The MSIS types are Facility, Surface or Underground. ID of the operator from the LID Mine Name

* Mine ID * Mine Status Desc * Mine Type * Operator ID

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* Operator Name The latest operator name as updated by a LID or MIF. If the last action is a LID, it will be updated if Assessments updates the name when it is approved. A new MIF will subsequently overwrite the mines operator name. Office Code * Primary Canvass Code Desc District Name Office Code Office Name MSHA code that identifies the office to which the mine is assigned. This is entered on the Mine Information Form (MIF). Unique code abbreviation for the primary industry group code for a mine. Office_tbl District name. MSHA code that identifies each office. The name of the office.

ACC_INJ_TBL * Accident Date Date the accident/injury/illness occurred. Schedule Charge Charge in days lost for any permanent injury/illness. Example: 6000 (Days) days for a death, 2400 days for the loss of a foot at the ankle. Contractor ID Identification number assigned by MSHA for contractors working at a mine. It is the contractor ID of the contractor or contractor employee involved in the accident/injury/illness. Actual days lost from work.

Days Lost

* Degree of Injury Code identifying the degree of injury/illness to the individual: (00) Code Accident only; (01) Fatality; (02) Perm total or perm partial disability; (03) Days away from work only; (04) Days away from work and restricted activity; (05) Days restricted activity only; (06) Injuries that do not result in death, or days away from work, or days of restricted work activity; (07) Occupational illnesses; (08) Fatal and non-fatal injuries due to the natural causes; (09) Fatal and non-fatal injuries to non-employees; (10) All other cases, including first aid. View "Degree of Injury Codes" for possible updates. * Mine ID Identification number assigned to the operation by MSHA. It is the mine ID of the mine where the accident/injury/illness occurred. ENF _ TIME_ TBL Activity Code for these hours reported. If an Event is also specified, this Activity Code must match that of the Event. Item #6 on the Weekly Time and Activity Data form.

* Activity Code

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AR No.

AR number of the employee for whom the time data was submitted. Metal AR and ROE numbers will be 4 characters and Coal will be 5 characters. The date the hours were worked for this activity. Event number related to the inspection and activity. Mine ID where inspection took place. Qualify with a 'C' if only coal information is desired. Qualify with an 'M' if only Metal/nonmetal mines is desired. Leave blank to retrieve data for both types of mines.

* Date Worked * Event No. * Mine ID * Coal (C) or Metal (M) Mine

* Inspection Time Total of fields 14a thru 14e on Weekly Time and Activity Data form. Total of On-Site Inspection Time (MNM), MMU Pit Time (Coal), Outby (Coal UG Mines), Surface Area Time (Coal) and C/O Writing On Site (MNM, Coal) Reviews (Coal), * Task Code A task code for personnel who perform a variety of tasks that may not be directly related to their title or to identify specialist activity associated with an event. Item #11on the Weekly Time and Activity Data form. Insp_tbl * Insp Acty Code Code used to identify the type of enforcement activity. See Common Table "Insp Activities" for more detail. Coal activity codes are characters and Metal activity codes are numbers. * Beginning Date Start date of the inspection. * Ending Date * Event No. * Mine ID Inspection close out date. Unique number identifying an inspection (event). Identification number assigned to the operation by MSHA. MINE_EMPROD _ TBL Employees Hours Worked Average number of employees reported by the operator for the applicable quarter, subunit and year beginning with 1990. Total employee hours reported by the operator during the quarter for this subunit, year and quarter.

Production The single-digit quarter for which the employment and production Quarter data is reported. *Production Year The 4-digit year of the employment/production data. * Mine ID Identification number assigned to the operation by MSHA.
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Tera _violations _ vwj * CFR Standard The 30 CFR Standard that the operator files to modify. Code * Citation No. * Citation Type Code * Coal (C) or Metal (M) * Final Order Date Preassigned citation/order/safeguard number of the initial action. Citation number is unique for non-history record Specifies the type of Citation: Citation, Order. Use Data Values to select code. One character indicator. (C) Coal or (M) Metal. Date that this Assessment becomes a Final Order. This date is set when the CRR date (Certified Return Receipt date) is set. Note that this can be a projected future date that is set as soon as the CRR is entered. Last action taken against this violation. Listed in common table Last Action Codes. Use Data Values to select code. Mine ID at which the violation is issued.

* Last Action Code * Mine ID

*Occurrence Date Date of the occurrence. * Primary Action Primary Section of Act which gives the MSHA Inspector the Code authority to take the action specified by this Issuance. More than one type of action may be cited. Use Data Values to select code. * Sig and Sub Indicator Violator Name An indicator as to whether or not the gravity is determined by the inspector to be S&S.

The name of the Operator or Contractor at the time of the Assessment. * Violator Type Specifies the type of Violator, either Operator, Contractor, Agent or Code Miner (listed in common table Violator Type Codes). Use data Values to select code. * AR No. Viol_tbl Authorized Representative (AR) number of the MSHA representative who issued the citation or order. Metal AR and ROE numbers will be 4 characters and coal numbers will be 5 characters. However, if an employee transfers from Coal to Metal, they will continue to use the 5-character AR number.

AR Office Code Organization code for the issuing AR (Coal only). * Type of Issuance Type of issuance: Citation, Order, Safeguard or Notice.

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*Contractor ID * Event No. * Injury /Illness

Code identifying the contractor to whom the citation or order was issued. Event number of the inspection during which the citation/order was issued. Value assigned to a violation for gravity of injury. Measure of seriousness of violation being cited as measured by severity of the injury or illness to persons if accident were to occur due to the conditions of the violation: Fatal, LostDays, NoLostDays or Permanent. Date the citation or order was issued by the MSHA inspector. Time (24 hour) the citation or order was issued by the MSHA inspector. Likelihood of an injury occurring due to the cited condition: Highly, NoLikelihood, Occurred, Reasonably or Unlikely. Codes representing the degree of negligence that the Inspector assigned to the Violator due to the Violation: HighNegligence, LowNegligence, ModNegligence, NoNegligence or Reckless.

* Date Issued * Time Issued * Likelihood * Negligence

* Number Affected Number of persons affected by the cited condition. * 30 CFR Part/section of Title 30 CFR violated.

* Sig and Sub S&S designation (Y or N). Designation * Type Action 1 Section of Act which is authority for the action taken. * Type of Termination * Violation No. * Violator Type Code identifying the type of termination: Issued, ReplacedByOrder, Terminated or Vacated. Citation/order number. Agent, Contractor, Miner, or Operator

* = Key Data Element for POV analysis.

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Appendix I Integrated MSIS Data Flow Diagram

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Appendix J Affects on the Results of MSHA’s POV Model from Criteria Changes # of Potential POV Mines Compared to Baseline Total Same Added Dropped Mines Mines Mines Mines 21 21 23 28 27 28 23 15 23 22 23 19 17 18 30 16 23 25 20 22 22 22 25 29 91 21 21 21 21 21 21 15 21 21 21 19 17 18 21 16 21 21 20 20 21 20 21 9 19 0 2 7 6 7 2 0 2 1 2 0 0 0 9 0 2 4 0 2 1 2 4 20 72 0 0 0 0 0 0 6 0 0 0 2 4 3 0 5 0 0 1 1 0 1 0 12 2

Description of Scenario Baseline – MSHA’s Criteria 1 2 3 3a 4 4a 4b 5 6 6a 6b 6c 6d 7 7a 8 9 9a 9b 9c 9d 10 11 12 Eliminate ONLY Criteria #1 Eliminate ONLY Criteria #2 Eliminate ONLY Criteria #3 Reduce Criteria #3 to 50% Eliminate ONLY Criteria #4 Reduce Criteria #4 to 110% Increase Criteria #4 to 140% Eliminate ONLY Criteria #5 Eliminate ONLY Criteria #6 Reduce Criteria #6 to 1 Increase Criteria #6 to 3 Reduce Criteria #6 analysis period to 12 mos. Reduce Criteria #6 analysis period to 12 mos. and reduce filter criteria to 1. Eliminate ONLY Criteria #7 Reduce Criteria #7 analysis period to 12 mos. Eliminate ONLY Criteria #8 Eliminate ONLY Criteria #9 Reduce Criteria #9 multiplier to 3 Reduce Criteria #9 review period to 12 mos. in the raw weighted score calculation Reduce Criteria #9 ranges for multiplier to (>1, =<1.5) (>1.5, =<2) (>2, =<2.5) Reduce Criteria #9 multiplier to 3, analysis period to 12 mos. and multiplier ranges as in 9c. Eliminate the “Active” status requirement Reduce review period to 12 mos. Use only “Issued” orders/citations in all criteria

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Appendix K Acronyms and Abbreviations
ANPRM CDEM CFR CMS&H Coal CY Commission IR ISR Mine Act Metal/Nonmetal MSHA MSIS NADL NIOSH OIG OSRV POV POV model S&S SOL UBB VPIH Advanced Notice of Proposed Rulemaking Coal Dust Explosibility Meter Code of Federal Regulations Coal Mine Safety and Health Office of Coal Mine Safety and Health Calendar Year Federal Mine Safety and Health Review Commission Injury Rate Injury Severity Rate Federal Mine Safety and Health Act of 1977 Office of Metal/Nonmetal Safety and Health Mine Safety and Health Administration MSHA Standardized Information System National Air and Dust Laboratory National Institute for Occupational Safety and Health Office of Inspector General Office of Standards, Regulations, and Variances Pattern of Violations Pattern of Violations Screening Criteria and Scoring Model Significant and Substantial Office of the Solicitor Upper Big Branch Mine-South Violations per Inspector hour

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Appendix L MSHA Response to Draft Report

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Appendix M Acknowledgements Key contributors to this report were Charles Allberry (Audit Director), Keith Galayda (IT Audit Director), Stephen Fowler, Michael Kostrzewa, Robert Swedberg, Jennifer Leung, Melvin Reid, Susan Rosenblum, Benjamin Brady, Samantha Cash-Johnson, Donald Evans, Richard Bryan, Aaron Talbert, Elizabeth Garcia, Norlean (Renee) Kelly, and Jennisa Paredes.

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TO REPORT FRAUD, WASTE, OR ABUSE, PLEASE CONTACT: Online: Email: Telephone: Fax: Address: http://www.oig.dol.gov/hotlineform.htm hotline@oig.dol.gov 1-800-347-3756 202-693-6999 202-693-7020 Office of Inspector General U.S. Department of Labor 200 Constitution Avenue, N.W. Room S-5506 Washington, D.C. 20210