Seyfarth Synopsis: The Mine Safety and Health Administration “remains troubled by the fact that our impact inspections continue to discover the same hazards we’ve identified as root causes for fatal accidents and that we know can cause serious occupational illnesses,” says MSHA Assistant Secretary Chris Williamson.

The federal Mine Safety and Health Administration (MSHA) regulates and conducts enforcement activities concerning mines, facilities connected to mines, and all employers who provide services at mines. The Agency has exceptional powers that in some ways exceed those of federal regulators at non-mine worksites, including the ability to shutter workplaces deemed to be unsafe. The MSH Act is a strict liability statute, so an operator need not be at fault – or to have intended to commit a violation – for penalties to attach. Under some circumstances, Company agents may be held personally liable for violations of the Act and its implementing regulations.

MSHA has recently seen an increase in workplace fatalities, with a government report, “Mine Safety and Health At a Glance: Fiscal Year,” listing 42 mine worker deaths in FY 2023, as opposed to 32 the preceding year. Such jumps are not unprecedented, as FY 2020 saw 23 deaths, compared to 39 in FY 2021. But mine fatalities have generally trended down since at least the late 1970s.

Assistant Secretary Williamson has been publicly-quoted saying, “I don’t think there is just one thing that is driving it . . . . There are a number of issues and it’s a culmination of all those things.” Indeed, the causes of the fatalities are varied and occur across different types of mines. One contributing factor could be a rise in the number of miners; agency data suggests a 3% increase in FY 2023. So, miners completely new to the job or even to a particular mine could be affecting the fatality surge. This suggests employers should ensure they have a robust training system in place to acclimate new employees to both general and site-specific hazards. Operators can also mitigate risk by ensuring workers have a path to report perceived hazards that can then be promptly addressed and corrected, as needed.

Enforcement alone cannot solve the problem of more frequent miner deaths, a fact Assistant Secretary Williamson acknowledges. Indeed, enforcement numbers seem to be returning to pre-COVID levels at the same time fatalities have increased. Perhaps this means the agency will invest resources in compliance assistance while concurrently pursuing enforcement activities.

Whether MSHA will have the resources to tackle each of these avenues remains an unanswered question, particularly where the agency is also engaged in multiple active rulemakings addressing issues as diverse as requiring operators to develop safety plans for surface mobile equipment and to increase protections for miners against silica. Congress does not appear ready to provide the funding levels that DOL believes are needed to achieve these goals, so already-thin resources at MSHA and other agencies could be stretched even further going forward.