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Audit: MSHA slow to review potential criminal violations

CHARLESTON, W.Va. -- Labor Department officials have been slow to review serious coal-mine safety violations to determine if they warranted referral for possible criminal prosecution, according to a new audit report made public this week.

U.S. Mine Safety and Health Administration investigators missed their own agency's deadlines for beginning and completing "special investigations" that are intended as a first step toward potential criminal mine safety prosecutions, according to the audit by the agency's Inspector General.

MSHA officials also did not always "document the rationale" for not pursuing special investigations, according to the audit released Monday.

"We continue to believe MSHA should reevaluate either the program's activities, the reasonableness of the timeframe goals, or both," the inspector general said in a 31-page report. "Failure to establish performance measures robs an agency of the ability to determine and report its effectiveness and efficiency."

MSHA's special investigations division focuses on violations that could have been committed knowingly and willfully. Special investigators look into such violations to determine if they should receive civil fines or be referred for criminal prosecution.

Improper handling of potential criminal violations was among the MSHA lapses cited following the deaths of 29 miners in an April 5, 2010, explosion at Massey Energy's Upper Big Branch Mine.

An internal MSHA review found that agency officials citing "resource limitations" did not follow MSHA procedures that required six different incidents at Upper Big Branch -- including poor ventilation and coal-dust accumulations -- to be considered for potential criminal prosecution.

In its review, the inspector general examined a sampling of potential special investigations during the 2010 to 2012 budget years. The sampling included 93 cases, out of the 888 initiated and completed special investigations during that time period.

The report found 90 instances in 65 cases, or 70 percent, where MSHA did not meet its timeframe goals:

• MSHA districts did not initiate 24 special investigations within 60 calendar days after the violation was discovered and cited.

• MSHA districts did not submit 37 cases to the agency's technical compliance and investigations office, or TICO, within 150 calendar days of the issuance date.

• TICO did not submit 29 cases to MSHA lawyers within 210 calendar days.

In a response, MSHA chief Joe Main said that the timelines cited by the inspector general "are general management goals -- not statutory or regulatory requirements."

"The primary causes for not meeting the timeframes for [special investigations] are the need to conduct thorough investigations and the need to prioritize inspections of all mines, discrimination investigations [which have statutory timeframes], accident investigations, internal reviews, and litigation support for contested citations," Main said in his response memo. "Balancing these demands and prioritizing special investigator work assignments impact the timeframes within which special investigations can be completed.

"MSHA believes the agency needs flexibility to redirect scarce SI resources, as necessary, to accomplish mandated activities," Main said.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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