Officials at the Mine Safety and Health Administration (MSHA) purposefully prevented a number of mines with serious safety violations from being placed on the list of mines with patterns of violations. Budget constraints, not safety concerns, led to some dangerous mines not being listed, according to the Department of Labor's Office of Inspector General (OIG).

On June 23, the OIG sent an alert memorandum to MSHA administrator Joseph Main in the midst of an ongoing OIG investigation of MSHA's enforcement procedures. The memo states that in March 2009, when the administrator of MSHA's Coal Mine Safety and Health division discussed the list of mining companies that had been identified as candidates for the agency's pattern of violation (POV) program, he directed the district managers to "select no more than one mine on the initial screening list per field office and a maximum of 3 mines per district." (Emphasis in the original)

According to the memo, investigators were told that the limitations were a result of budgetary constraints. This guidance "set a limit that was inappropriate for this enforcement program." As a result of the guidance, program administrators were permitted to remove some mines from the POV list.

The POV program identifies the mining companies with the worst safety and health violations and invokes enhanced MSHA enforcement efforts for those mines. Several problems with the program allow mines to avoid penalties and the enhanced enforcement regime. For example, companies can escape this status by contesting citations to the independent Federal Mine Safety and Health Review Commission (FMSHRC), which has a backlog of approximately 16,000 cases.

The POV program drew public attention in April after 29 miners were killed in an explosion at the Upper Big Branch mine in West Virginia. The owner of the mine, Massey Energy, has a history of safety violations that placed it on the program's screening list. Massey avoided being placed in the POV program by contesting violations as a regular practice.

Another Massey-owned mine, the Tiller No.1 mine in Virginia, avoided being placed in the POV program on June 8 when a FMSHRC judge dismissed 10 of the 29 citations the company contested. The judge ruled that only 19 of the violations were "significant and substantial." Mines can be placed on the list if 25 violations are proved.

The OIG memo cited MSHA's review of the POV program between 2007 and 2009, which identified 89 mines for potential listing in the program. Although some mines were removed for appropriate reasons, the memo states that at least 10 mines were removed from the list in February and September 2009.

According to the memo, "MSHA is not subjecting these mines to the enhanced oversight that accompanies potential POV status, yet it does not have evidence that they had reduced their rate of significant and substantial violations. As a result, miners may be subjected to increased safety risks."

The OIG recommended that MSHA reevaluate the 10 mines while it undergoes its review of the existing POV program, an effort MSHA began following the West Virginia explosion. The memo further recommended that MSHA ensure that future decisions about the removal and inclusion of mines be based only on the health and safety conditions at the mines.

Problems with the agency's enforcement program led members of the House Committee on Education and Labor to request the OIG investigation after the Upper Big Branch mine disaster. In a June 23 press release, committee chair George Miller (D-CA) said, “The Inspector General’s alert raises very serious concerns that go to the heart of health and safety of mine workers. Prior to Assistant Secretary Main’s confirmation, MSHA obstructed a key safety enforcement tool that could have endangered the lives of mine workers.”

In response to the OIG memo, the Labor Department issued a press release promising to reform the POV program. Secretary Hilda Solis and Main acknowledged that the program was "badly broken" and that the screening of mines will be different in 2010 than in the past. The agency is making administrative and rulemaking fixes, as well as working with Congress on legislation, according to the press release.

The OIG asked Main to formally respond to the action memo in 10 days.