United States Government Accountability Office

GAO Testimony 

Before the Committee on Education and 

Labor, House of Representatives

MINE SAFETY

MSHA’s and Other Federal 

Agencies’ Improved 

Oversight Could Enhance 

Safety for Coal Miners 

Statement of Daniel Bertoni, Director 

Education, Workforce, and Income Security 

For Release on Delivery 

Expected at 10:30 a.m. EDT 

Wednesday, May 16, 2007 

 

GAO-07-855T 
What GAO Found

United States Government Accountability Office

May 16, 2007

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

MINE SAFETY

MSHA’s and Other Federal Agencies’ 

Improved Oversight Could Enhance 

Safety for Coal Miners 

Highlights of GAO-07-855T, a testimony 

before the Committee on Education and 

Labor, House of Representatives 

The Mine Safety and Health 

Administration (MSHA), the 

National Institute for Occupational 

Safety and Health (NIOSH), the 

Federal Mine Safety and Health

Review Commission, the

Department of Labor’s Office of the 

Solicitor, the states, and the mining

industry share responsibility for 

ensuring mine safety.

In two reports released today, GAO

examined the challenges 

underground coal mines face in

preparing for emergencies, how 

well MSHA oversees mine 

operators’ training efforts, how 

well MSHA and NIOSH coordinate

to enhance the development and

approval of mine safety technology, 

MSHA’s coal mine inspector 

recruiting efforts, and how civil 

penalties are assessed. 

What GAO Recommends

GAO is making recommendations 

in the reports accompanying this

testimony to strengthen the efforts 

of MSHA, Labor, NIOSH, and the

Commission by improving mine 

operators’ access to information 

and tools for training their workers,

strengthening MSHA’s oversight of 

training, improving the 

effectiveness of information 

sharing between MSHA and

NIOSH, strengthening MSHA’s 

human capital strategic planning 

efforts, and ensuring that there is

transparency in penalty appeal

determinations. Each agency

generally agreed with the 

recommendations in the reports. 

Underground coal mine operators reported facing significant challenges in 

preparing for emergencies, including ensuring that miners receive realistic 

training and organizing mine rescue teams that satisfy new requirements. 

While mine operators recognize the importance of providing training in an 

environment that simulates an emergency, many of them reported 

challenges such as limited access to special training facilities and the cost of 

providing such training. In addition, mine operators reported that they 

anticipate challenges in implementing new mine rescue team requirements, 

such as conducting training annually at each mine the rescue team services. 

MSHA approves mine operators’ training plans and inspects their training 

records, but its oversight of miner training is hampered by several factors. 

For example, MSHA does not have current information on its instructors and 

does not ensure that they keep their knowledge and skills up to date. In 

addition, MSHA does not adequately monitor instructors or evaluate training 

sessions, and does not assess how well miners are learning the skills being 

taught. 

MSHA and NIOSH have a common mission to improve the safety and health 

of coal miners, but they do not have a current memorandum of 

understanding to guide their coordination efforts. As a result, most of the 

coordination that occurs is initiated by individual staff members or by 

outside parties. Such informal coordination may not be sufficient given the 

pending retirements of many MSHA and NIOSH engineers and scientists and 

other challenges both agencies face. 

In 2004, MSHA began a new process for hiring mine inspectors, which has 

led to a number of improvements, such as being able to identify applicants 

who possess the basic skills needed to be successful inspectors and 

decreasing the time it takes to hire new inspectors. However, MSHA’s human

capital plan does not include a strategic approach for addressing the large 

number of retirements expected in the next 5 years.

While most of the penalties proposed by MSHA are paid by mine operators 

without opposition, a small percentage of the cases involving more serious 

and higher dollar penalties are appealed, and those appealed are often 

reduced significantly. MSHA uses a standard formula to propose penalties, 

but the other entities involved in the appeals process use considerable 

discretion in deciding on the final penalty amount. Approximately 6 percent 

of the 506,707 penalties proposed by MSHA between 1996 and 2006 were 

appealed by mine operators. About half of the penalties for the appealed 

violations were reduced by an average of 49 percent, regardless of the level

of gravity of the violation initially cited by MSHA or the degree of the mine 

operator’s negligence initially cited. 

www.gao.gov/cgi-bin/getrpt?GAO-07-855T.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Daniel Bertoni 

at (202) 512-7215 or bertonid@gao.gov. 
Mr. Chairman and Members of the Committee: 

Thank you for inviting me here today to discuss worker safety in 

underground coal mines. As you are aware, the tragic accidents that 

occurred early last year brought the nation’s attention to the perils 

workers face in underground coal mining. In response, the Congress and 

the Department of Labor’s (Labor) Mine Safety and Health Administration

(MSHA) took steps to try to prevent future fatalities. The Mine 

Improvement and New Emergency Response Act of 2006 (MINER Act) 

required mine operators and MSHA to undertake a variety of reforms, 

including enhancing mine rescue teams, developing up-to-date accident 

response plans, and instituting tougher penalties—including a criminal 

penalty—for mine operators who violate health and safety standards.1

 In 

addition, MSHA implemented new standards aimed at instituting 

immediate safety and health improvements, including requiring operators 

to provide safety training on evacuation routes and opportunities for 

miners to learn how to react in certain kinds of simulated emergency

situations. 2

 Other federal agencies share responsibilities for improving 

mine safety. These agencies include the Office of Mine Safety and Health 

of the Department of Health and Human Services’ National Institute for 

Occupational Safety and Health (NIOSH), the Department of Labor’s 

Office of the Solicitor, and the Federal Mine Safety and Health Review 

Commission. 

In response to concerns about the safety of underground coal mines, my 

testimony today will focus on five key issues: 

1. the challenges underground coal mines face in preparing for mine 

emergencies, 

2. how well MSHA oversees mine operators’ training efforts, 

3. how well MSHA and NIOSH coordinate their efforts to enhance the 

development and approval of mine safety technology, 

4. how MSHA has revised its recruiting and hiring of underground 

coal mine inspectors, and 

 1

Pub. L. 109-236. 

2

30 C.F.R. Parts 48, 50, and 75, Emergency Mine Evacuation; Final Rule, 71 Fed. Reg. 12,252

(March 9, 2006); 30 C.F.R. Parts 3, 48, 50, and 75, Emergency Mine Evacuation; Final Rule, 

71 Fed. Reg. 71,430 (December 8, 2006). 

Page 1 GAO-07-855T 
5. how civil penalties are assessed when underground coal mine

operators violate safety and health standards. 

My comments are based on the findings of two reports to be released 

today.3

 We conducted all of our work in accordance with generally 

accepted government auditing standards. 

In summary, 

• Underground coal mine operators reported facing significant 

challenges in preparing for emergencies, including ensuring that 

miners receive realistic training and organizing mine rescue teams 

that satisfy new requirements. While mine operators recognize the 

importance of providing training in an environment that simulates 

an emergency, many of them reported challenges such as having 

limited access to special training facilities and the cost of providing 

such training. In addition, mine operators reported that they 

anticipate challenges in implementing new mine rescue team 

requirements, such as conducting training at least annually at each 

mine the rescue team services. 

• MSHA approves mine operators’ training plans and inspects their 

training records, but its oversight of miner training is hampered by 

several factors. For example, MSHA does not have current 

information on its instructors and does not ensure that they keep 

their knowledge and skills up to date. In addition, MSHA does not 

adequately monitor instructors or evaluate training sessions, and it 

does not assess how well miners are learning the skills being taught. 

• MSHA and NIOSH have a common mission to improve the safety 

and health of coal miners, but they do not have a current 

memorandum of understanding to guide their coordination efforts. 

As a result, most of the coordination that occurs is initiated by 

individual staff members or by outside parties. Such informal 

coordination may not be sufficient given the pending retirements of 

many MSHA and NIOSH engineers and scientists and other 

challenges both agencies face. 

 3

GAO, Mine Safety: Better Oversight and Coordination by MSHA and Other Federal 

Agencies Could Improve Safety for Underground Coal Miners, GAO-07-622 (Washington,

D.C.: May 16, 2007); MSHA’s Revised Hiring Process Has Improved the Agency’s 

Recruiting Efforts, but Its Human Capital Strategic Plan Does Not Adequately Project or 

Address Its Future Workforce Needs, GAO-07-704R (Washington, D.C.: May 16, 2007). 

Page 2 GAO-07-855T 
• In 2004, MSHA began a new process for hiring mine inspectors, 

which has led to a number of improvements, such as being able to 

identify applicants who possess the basic skills needed to be 

successful inspectors and decreasing the time it takes to hire new 

inspectors. However, MSHA’s human capital plan does not include a

strategic approach for addressing the large number of retirements 

expected in the next 5 years. 

• While most of the penalties proposed by MSHA are paid by mine 

operators without opposition, a small percentage of the cases 

involving more serious and higher-dollar penalties are appealed, and 

those appealed are often reduced substantially. MSHA uses a 

standard formula to propose penalties, but the other entities 

involved in the appeals process use considerable discretion in 

deciding on the final penalty amount. Approximately 6 percent of 

the 506,707 penalties proposed by MSHA between 1996 and 2006 

were appealed by mine operators. About half of the penalties for the 

appealed violations were reduced regardless of the level of gravity 

of the violation initially cited by MSHA or the degree of the mine 

operator’s negligence initially cited. Appealed penalties were 

reduced by an average of 49 percent.

In our reports released today, we are making a number of 

recommendations to improve mine operators’ access to information and 

tools for training their workers, strengthen MSHA’s oversight of training, 

improve the effectiveness of information sharing between MSHA and 

NIOSH, strengthen MSHA’s workforce planning, and ensure transparency 

in penalty appeal determinations. 

MSHA’s Coal Mine Safety and Health Administration is responsible for 

carrying out enforcement activities related to surface and underground 

coal mines. As of January 2007, MSHA employed approximately 

550 underground coal inspectors in its 11 coal districts. MSHA’s principal 

enforcement responsibility for underground coal mines is fulfilled by 

conducting a minimum of four comprehensive inspections of every 

underground coal mine each year.4

 When MSHA inspectors observe 

violations of federal health and safety standards, they are required to issue 

Background 

 4

Mines that are recognized as more dangerous, such as those containing high levels of 

methane gas, are inspected more frequently. 

Page 3 GAO-07-855T 
a citation to the coal mine operator.5

 Even if an operator does not agree 

with the violation or the penalty amount, the operator must resolve the 

problems within the time frame set by the inspector. 

In assessing penalties, the Mine Act requires both the Commission and 

MSHA to consider six statutory factors: 

1. the mine operator’s history of previous violations, 

2. the appropriateness of the penalty to the size of the mine, 

3. whether the mine operator was negligent, 

4. the effect on the operator’s ability to continue in business, 

5. the gravity of the violation, and 

6. the demonstrated good faith of the mine operator charged in 

quickly remedying the situation after being notified of a violation. 

Underground coal mine operators face significant challenges preparing for 

emergencies, including ensuring that miners receive realistic training and 

organizing mine rescue teams that satisfy new requirements. MSHA issued 

new requirements in March 20066

 that direct mine operators to conduct 

mine emergency evacuation drills every 90 days, including drills that 

simulate actual emergency conditions; install directional lifelines to help 

miners find their way out of a dark mine; and instruct miners in the 

procedures for evacuating the mine in emergencies, such as those 

involving fires or explosions.7

 Based on our survey completed in February 

2007, almost all mines had conducted evacuation drills and installed 

lifelines, but we estimate that half of the mines had not conducted drills in

Underground Coal 

Mines Face 

Challenges in 

Preparing Mine 

Workers and Rescue 

Teams for 

Emergencies 

 5

MSHA inspectors are authorized to issue either a citation or a withdrawal order when they

observe a health and safety violation. All withdrawal orders compel the removal of miners 

from the affected work areas until the observed hazard is terminated. This, in essence, 

could halt production in a particular area of the mine. 

6

The new requirements were finalized in December 2006, with some modifications and 

clarifications. 

7

To ensure that four major scenarios—fire, explosion, gas, and water inundation—are 

covered each year, the final rule requires that a different scenario be used each quarter in

conducting evacuation drills.

Page 4 GAO-07-855T 
environments that simulated actual emergency situations.8

 According to 

the survey, simulated mine emergency training presents the greatest 

challenge in preparing miners for and responding to mine emergencies. 

Specifically, the most common challenges were the availability of training

centers that can simulate an emergency situation, the availability of 

training in a simulated mine emergency situation, and the cost associated 

with providing simulated mine emergency training (see fig. 1). 

 8

Percentage estimates are based on a sample and are subject to sampling error. See

GAO-07-622 for more information on the survey methodology. We are 95 percent confident

that the results we obtained are within plus or minus 8 percentage points of the true values 

of the in-scope population. Each sample element was subsequently weighted in the analysis 

to account for all members of the in-scope population, including those that were not

selected. 

Page 5 GAO-07-855T 
Figure 1: Mines’ Assessment of Challenges in Preparing Workers for Mine Emergencies 

0 10 20 30 40 50 60 70 80 90 100

Challenge

Estimated percentage of mines assessing the challenge as moderate to major

Source: GAO analysis of survey data.

The availability of training centers that

can simulate an emergency situation

The availability of training in a

simulated mine emergency situation

The cost associated with

simulated mine emergency training

The amount of time needed

to train new mine workers

The availability of approved instructors who

can conduct simulated mine emergency training

The loss of experienced mine

workers due to retirements

Training mine workers in first respondertype activities such as firefighting techniques

Preparing mine workers to use

breathing devices for escape

Familiarizing mine workers with escape routes

81

70

70

62

47

46

31

26

5

Although MSHA has materials that mine operators can use to provide 

hands-on training on specific topics, it does not provide all mine operators 

with information and tools for training under simulated emergency 

conditions. MSHA has a catalog of various training tools, including 

classroom exercises, that mine operators can obtain upon request. For 

example, to support the new standards issued in March that require miners 

to train with breathing devices, MSHA distributed a training packet to all

underground coal mines and appropriate state grantees.9

 However, MSHA 

does not provide all mine operators with critical information on how to 

provide training in simulated emergency environments such as smoke-

 9

The packet contained a DVD on the protocol for how to transfer from one breathing 

device to another, training manuals on six types of breathing devices, an article on how to 

disinfect the devices, and other related information. 

Page 6 GAO-07-855T 
filled mines or information on resources that are available for providing 

such training. Some mine operators use a number of techniques to 

simulate emergency conditions, but other mine operators may be unaware 

of them. 

Based on our survey, cost concerns and opportunities for conducting 

simulated training with all stakeholders are the greatest challenges in 

preparing rescue teams for mine emergencies (see fig. 2). 

Figure 2: Mines’ Assessment of Rescue Team Challenges in Preparing for Mine Emergencies 

0 10 20 30 40 50 60 70

Factor

Estimated percentage of mines assessing the factor as a moderate to major challenge

Source: GAO analysis of survey data.

The funding required to equip mine rescue teams

The opportunity to conduct simulated activities that include

all stakeholders that would be involved in an emergency

Amount of time needed to train

and prepare new team members

The funding required to train mine rescue teams

The number of mine workers available

to participate on mine rescue teams

The availability of up-to-date mine

rescue technology and equipment

The legal liability associated with assisting

mines other than one’s own during emergencies

The opportunity to participate in training

exercises that simulate a real emergency situation

The opportunity to participate in mine rescue

competitions that simulate a real emergency situation

Loss of experienced team

members due to retirements

Access to practice facilities

The number of mine rescue teams available

to assist in the event of a mine emergency

68

66

63

58

57

55

52

31

50

46

46

35

Mine operators also reported that they anticipated further challenges 

stemming from new requirements in the MINER Act. We estimate that half 

of underground coal mines anticipate changing the composition of at least 

one of their designated mine rescue teams as a result of the MINER Act. 

Page 7 GAO-07-855T 
Specifically, mine operators pointed to the requirement that teams train at 

least annually at the mines they are responsible for covering. This change 

could present a particular challenge for mine rescue teams in several key 

coal mining states that serve many or all of the states’ mines. According to

respective state officials, all mines in Kentucky and many in Virginia and 

Pennsylvania rely on the state to provide or arrange for mine rescue 

services. In Kentucky, for example, mines receive rescue services from

state teams composed of state mine inspectors whose primary duties are 

to inspect coal mines. According to a state official, a Kentucky team would 

be required to conduct 120 training exercises annually under the MINER 

Act, compared to the 12 exercises it currently conducts. Depending on the 

final regulations developed by MSHA to implement the requirements of the 

MINER Act, officials in Kentucky said they might stop offering mine 

rescue services because of the amount of time that will be needed to meet 

the training requirements. 

Some mine operators have already started making changes to their mine 

rescue teams based on the MINER Act, while others are taking a more 

cautious approach, given the costs of training and equipping new rescue 

teams. For example, one company that operates multiple mines reported 

that it was creating new backup mine rescue teams to satisfy the new 

requirement that rescue teams be within 1 hour travel time from the mines 

they serve. In other cases, however, according to mine and industry 

officials, mines were waiting to see how MSHA implements the new mine 

rescue requirements before changing their team designations.

10 For 

example, the extent of the required training at each mine could affect how 

mine operators designate rescue teams. 

 10MSHA has not yet determined how the mine rescue team requirements in the MINER Act 

will be implemented. MSHA officials said they plan to hold public hearings on the 

requirements of the act before publishing final rules, which are due in December 2007. 

Page 8 GAO-07-855T 
MSHA has the authority to oversee certain aspects of miner training to 

help ensure that miners work safely and are prepared for potential 

emergencies, but its oversight of training is hindered by several factors. 

• Inconsistent instructor approval standards 

To become an approved instructor, MSHA requires that an applicant prove 

his or her mining and teaching experience in one of three ways: by (1) 

submitting written qualifications, (2) attending new instructor training, or 

(3) teaching a class monitored by MSHA under provisional approval from 

an MSHA district manager. MSHA suggests factors that district managers 

may use in determining an applicant’s skills, but it does not have firm 

criteria that new instructors must meet. In addition, the approval 

procedures are not standardized across MSHA’s 11 coal districts, 

according to MSHA officials. For example, some districts grant provisional 

authority to new instructors only if they can be monitored by MSHA staff. 

Other districts grant provisional approval for individuals to teach specific 

courses but, according to MSHA officials, may not monitor these 

instructors’ teaching skills. According to MSHA officials, staff resources 

limit districts’ ability to monitor applicants’ teaching skills. 

MSHA Reviews Mines’ 

Training Plans and 

Inspects Training 

Records but Does Not 

Adequately Monitor 

Instructors or 

Training

• Lack of up-to-date information on approved instructors 

MSHA maintains a database of approved instructors that includes contact 

information for each instructor, the courses they are approved to teach, 

and whether they have full or provisional authority to teach the courses. 

But according to MSHA officials, the database contains outdated contact 

information because some instructors move without notifying MSHA. 

Without accurate information on its instructors, MSHA cannot ensure that 

instructors receive training policy updates and cannot determine whether 

there are enough qualified instructors to meet mine operators’ needs. 

• No continuing education requirements for approved instructors 

Once instructors are approved, according to an MSHA official, they are not 

required to demonstrate that they are staying current on emerging mining 

issues. As a result, MSHA cannot ensure that instructors are keeping their 

mining knowledge and skills up to date, including their knowledge of 

emerging safety and health issues and new training tools. 

Page 9 GAO-07-855T 
• Limited monitoring and evaluation of training sessions 

According to MSHA officials, the agency monitors few miner training 

sessions relative to the number conducted, and instructor evaluations 

occur on an ad hoc basis. According to mine operators and trainers, MSHA 

rarely oversees training, and it monitors sessions primarily for 

enforcement purposes rather than to enhance instructors’ knowledge and 

abilities. In addition, many of the training sessions occur on the weekends, 

when MSHA staff do not normally work, limiting their ability to monitor 

training. MSHA does not collect or analyze training evaluations obtained 

from miners to help gauge whether learning objectives are taught 

effectively, and an estimate of 80 percent of mines do not seek feedback 

on training sessions from their workers. As a result, MSHA cannot 

determine how well miners are learning the skills taught by MSHAapproved trainers and recommend corrective measures as necessary. 

MSHA and NIOSH have complementary roles in improving the safety and 

health of coal miners, but coordination between the two agencies is 

largely informal and inconsistent due to a lack of a formal agreement or 

policies to guide their efforts. MSHA is primarily involved in setting health 

and safety standards and enforcing them through mine inspections that 

can result in citations and penalties, whereas NIOSH’s mining program is 

focused on research into the causes of and ways to prevent the safety and 

health hazards miners face. 

MSHA and NIOSH 

Lack a Formal 

Agreement to Guide 

Mine Safety 

Coordination 

MSHA and NIOSH currently lack a formal agreement, such as a 

memorandum of understanding or other policy to guide their coordination

efforts, a practice we have identified as effective in prior work.11 In 1978, 

NIOSH’s predecessor and MSHA had a signed memorandum of 

understanding that specified how they would coordinate to ensure that 

technology resulting from mine safety research would be used to the 

 11We have reported that agencies can strengthen their commitment to work collaboratively 

by articulating their agreements in formal documents, such as a memorandum of

understanding, interagency guidance, or an interagency planning document, signed by 

senior officials in the respective agencies. See GAO, Results-Oriented Government: 

Practices That Can Help Enhance and Sustain Collaboration among Federal Agencies, 

GAO-06-15, (Washington, D.C.: October 21, 2005). 

Page 10 GAO-07-855T 
fullest extent.12 The memorandum embodied many of the key practices 

identified in prior GAO work that can help federal agencies enhance and 

sustain their collaborative efforts, such as defining roles and 

responsibilities and developing joint strategies. However, the 

memorandum is no longer used, and MSHA officials were unaware of any 

plan to update the document. As a result of not having a formal agreement 

or policies to guide their activities, coordination between MSHA and 

NIOSH is primarily driven by informal relationships between staff at both 

agencies. Officials from both agencies and labor union representatives told 

us that coordination has been primarily at the initiative of individuals at 

both agencies and, as such has not always been consistent across the 

agencies. 

NIOSH and MSHA face a potentially large workforce turnover in coming

years, and informal coordination based on working relationships between 

staff members may not continue when the individuals leave. As at many 

federal agencies, MSHA and NIOSH have a large proportion of employees,

including many engineers and scientists, who are eligible to retire over the 

next several years. MSHA data show that more than 50 percent of its 

140 engineers and scientists will be eligible for retirement within the next 

10 years, with 31 percent eligible within 5 years. Similarly, about half of 

NIOSH’s employees—most of whom are scientists and engineers—are 

eligible to retire in 5 years. 

In addition, MSHA and NIOSH face other challenges that require them to 

work more closely together, particularly in developing and approving 

safety technologies under tight time frames. An influx of new and 

inexperienced miners brought on due to the increased demand for coal 

and the aging of the workforce, rising dangers as miners go deeper 

underground to mine coal, and recent mine disasters have heightened 

interest in promising new safety technology. The MINER Act addresses 

some of these issues and underscores NIOSH’s and MSHA’s roles in 

developing and approving safety technologies. For example, the act 

requires NIOSH to study the use of refuge chambers for miners and 

requires MSHA to review the results of NIOSH’s work to determine what 

 12This agreement was originally executed between MSHA’s predecessor in the Department 

of Interior, the Mining Enforcement and Safety Administration (MESA) and NIOSH’s 

predecessor, the Division of Mining Research – Health and Safety in the Bureau of Mines in 

1976. The MOU was updated in 1978 after MESA was transferred to the Department of 

Labor and renamed MSHA. 

Page 11 GAO-07-855T 
actions, such as making regulatory changes, are appropriate. Both 

agencies must take action within a relatively short period of time.

13

While MSHA has taken significant steps to improve its hiring process, the 

agency’s human capital plan does not include a strategic approach for 

addressing the large number of retirements expected over the next 5 years. 

In 2004, MSHA began using the Federal Career Intern Program (FCIP) to 

hire new mine inspectors, which has resulted in a number of 

improvements to the hiring and recruitment process, such as hiring new 

inspectors more quickly. Since it began using the program, MSHA has 

hired 301 interns, 236 of whom are coal mine inspector trainees.14 Through 

the FCIP, MSHA developed a process for assessing applicants’ skills, 

conducting interviews, and providing applicants with immediate feedback 

on their aptitude during 1-day job fairs held in locations around the 

country. As of October 2004, all applicants for inspector positions must 

attend job fairs and pass a test on basic math and writing skills before 

interviewing with MSHA. MSHA reported that this screening process has 

helped the agency maximize its resources, since the exams identify 

applicants who do not have the basic skills needed to become a successful

inspector at an early stage of the hiring process. For example, of the 

1,256 applicants tested in 2005 and 2006, 49 percent failed either the math 

or written exam, or both. MSHA’s previous hiring process considered 

experience over basic skills, and officials told us that this resulted in some 

new hires with significant mining experience but weak reading and writing 

skills. As a result, MSHA spent time during new mine inspector training 

teaching these basic skills. 

MSHA Has Improved 

Its Hiring Process, but 

Its Human Capital 

Strategic Plan Does 

Not Adequately 

Project or Address Its 

Future Workforce 

Needs 

MSHA officials reported that this new approach has reduced the amount 

of time it takes to hire a new mine inspector from up to 180 days to 

45 days or less.15 In addition, the Office of Personnel Management 

approved MSHA’s request to hire mine inspectors through the FCIP under 

 13NIOSH is required to report out on its work within 18 months after the enactment of the 

MINER Act. MSHA then has 180 days after receiving the report from NIOSH to determine

what actions it intends to take.

14These data are as of February 2007. The noncoal interns were hired as inspector trainees 

for metal/nonmetal mining operations. 

15According to an MSHA human resources official, this time frame begins when an

applicant receives a job offer and includes time for the agency to review the results from a

medical exam and drug test. It does not include any time that an applicant might be placed 

on a waiting list if the district does not have a job opening available. 

Page 12 GAO-07-855T 
a broader range of pay scale levels, which allows the agency to hire 

individuals with different experiences.16 For example, an applicant might 

have little experience in mining but possess relevant experience in 

construction and electrical engineering. This applicant would be hired as a 

mine inspector trainee at the lower end of the pay scale and be given 

additional training in areas specific to mine health and safety. Further, 

MSHA officials commented that the job fairs have helped the agency 

reduce the number of interagency transfers that occurred under its old 

hiring process, which was a significant problem. Since job fairs are held in

the locations where applicants are being sought and applicants must 

attend the job fairs in person, they tend to live in those communities and 

are less likely to request a transfer to another location once they are 

hired.17

Appointments to the FCIP are generally for 2 years, at which point the 

intern may be offered a permanent position.18 During the internship, new 

hires are required to participate in a formal training program, which 

consists of training provided by the Mine Academy and structured on-thejob training. However, district managers and Mine Academy officials 

agreed that, realistically, new inspectors can take up to 5 years to become

fully competent and confident in their roles as underground coal mine 

inspectors. 

While the improvements MSHA has made to its recruiting process are an

important part of addressing impending retirements, the agency has not 

developed a long-term strategy for replacing mine inspectors. MSHA 

estimates that over 40 percent of its inspectors will be eligible for 

retirement by 2012 (see table 1), and agency officials told us that in the last 

3 years, between 32 and 47 percent of the coal mine enforcement 

employees eligible to retire actually did so in the first year of eligibility. 

 16MSHA can offer new mine inspectors positions under the government general schedule

(GS) that range from GS-5 to GS-11. As of January 2007, the potential pay ranged from 

$25,623 to $61,068. 

17For example, between October 2006 and April 2007, MSHA held job fairs in each of its 

11 coal mine districts. 

18Inspectors with relatively little experience (and hired at the lower end of the pay scale) 

participate in the FCIP longer—3 years instead of 2 years—to give the agency time to 

assess their performance and knowledge before a decision is made on whether to convert

them to permanent employee status. 

Page 13 GAO-07-855T 
Table 1: Number of Underground Coal Mine Inspectors and Those Eligible for Retirement by 2012 

District office 

1 2 3 4 5 6 7 8 9 10 11 Total

Number of underground coal 

mine inspectors 

6 38 39 71 35 56 52 24 26 16 14 377

Number of underground coal 

mine inspectors eligible to 

retire within 5 years

3 23 15 36 12 16 13 10 13 8 5 154

Percentage eligible to retire 

within 5 years

50% 61% 38% 51% 34% 29% 25% 42% 50% 50% 36% 41%

Source: GAO analysis of MSHA data. 

Note: Data are as of January 31, 2007. 

District officials expressed concern over loss of highly experienced coal 

mine inspectors and the impact such retirements can have on achieving 

the goals of the agency. For example, one district official told us that 

recent retirements have left the district short-handed and expressed 

concern over the inspectors’ ability to complete the required annual mine 

inspections on time. 

While MSHA human resources officials told us about steps they are taking

to mitigate the turnover, the agency has not developed a strategic plan that

clearly links measurable outcomes to the mission and goals of the agency.

In our review of the plan and discussions with MSHA officials, the agency 

has not yet demonstrated how it is planning for its future needs, what 

targets and goals are established to meet those needs, and how the goals

will be monitored. For example, given the amount of time needed to train 

new inspectors, it is not clear how the agency will take into account the 

potential increases in future hiring and the time necessary to fully train 

replacements. 

GAO has reported on effective strategies for workforce planning that 

require a more strategic approach to meeting the challenges of the future.19

Among other elements, strategic planning serves as a tool to help agencies

address challenges in a manner that is clearly linked to achieving their 

mission and goals. For example, by using data to make long-term 

 19GAO, Human Capital: Federal Workforce Challenges in the 21st Century, GAO-07-556T 

(Washington, D.C.: March 6, 2007); GAO, Human Capital: Key Principles for Effective 

Strategic Workforce Planning, GAO-04-39 (Washington, D.C.: Dec. 11, 2003). 

Page 14 GAO-07-855T 
projections, an agency can design a transition program to ensure that 

experienced employees are available in critical areas of the agency and 

that the institutional knowledge would not be lost because of turnover. 

Further, the agency can revisit the projections on a regular basis and use 

the information to address broader agency goals for improvement. 

Most of the penalties proposed by MSHA are paid by mine operators 

without opposition, but a small percentage of more serious and higherdollar penalties are appealed, and many of those appealed are reduced

significantly. In order to determine the amount of a proposed penalty,

MSHA uses a standard formula that generally results in larger penalties 

being proposed for more serious violations. MSHA assigns point values to

each of the six broad factors outlined in the Mine Act, and two of these 

factors—whether the operator was negligent and the gravity of the 

violation—carry the greatest weight in deciding the amount of the 

proposed penalty.20 MSHA inspectors are responsible for making an initial 

determination regarding the magnitude of these two elements during their

inspections.21 After an inspector issues a citation and makes an initial 

finding regarding the gravity and negligence of the violation, MSHA 

determines the magnitude of the remaining four factors and tallies the 

points to determine the proposed penalty amount. Between 1996 and 2006,

MSHA proposed 506,707 penalties for safety and health violations, and the 

average penalty was $234 per violation. Table 2 details the range of 

Most Penalties 

Assessed by MSHA 

Are Paid without 

Opposition, but Many 

of Those Appealed 

Are Reduced 

Significantly 

 20Under regulations effective as of April 23, 2007, MSHA’s penalties are assessed in two 

different penalty categories: regular and special. Prior to the recent regulatory changes, 

MSHA issued a third type of penalty called the single penalty. The single penalty was a flat 

$60 penalty for violations that are unlikely to cause injury or illness. This type of penalty 

accounted for approximately 60 percent of the penalties issued between 1996 and 2006. 

MSHA’s new regulations eliminate the single penalty. A regular assessment is the agency’s 

general penalty and ranges from $112 to $60,000. Special assessments are reserved for 

violations in which MSHA elects to waive the regular assessment, and set another penalty 

consistent with the six statutory factors. For example, special assessments may be used 

when an operator fails to correct certain violations or notify MSHA of certain kinds of

accidents. A special assessment can be as high as $220,000, but this is for the new flagrant

violation established under the MINER Act; the maximum for most special assessments is 

also $60,000. Eligibility guidelines and assessment formulas for special and regular 

assessments are outlined in MSHA regulations and agency policies. 

21MSHA inspectors also determine whether mine operators have made good faith efforts to 

correct the violation, which results in a 10 percent reduction in the proposed penalty. 

Under regulations that were in effect through April 22, 2007, the good faith reduction was 

30 percent. 

Page 15 GAO-07-855T 
average penalties, by degree of gravity and negligence, proposed by MSHA 

from 1996 through 2006.

Table 2: Average Proposed Penalty by Gravity and Negligence Indicators, 1996 to 

2006 

Elements of gravity and negligence 

Percentage of 

citations issued 

Average 

proposed penalty 

Gravity of violationa

Likelihood of accident 

Accident occurred 0.2% $12,324 

Highly likely to occur 0.9% $2,362

Reasonably likely to occur 38.6% $367

Unlikely to occur 55.5% $74

No likelihood 2.4% $168

Total 97.6%b

Potential injury or illness 

Fatal 3.5% $1,185 

Permanent injury 7.4% $569

Lost days 62.4% $202

No lost work days 24.4% $77

Total 97.7%b

Number of miners affected 

0-1 miners 82% c

2-5 miners 10.8% c

6-9 miners 4.5% c

10 or more miners 2.7% c

Total 100.0%

Negligence by mine operator 

Reckless 0.1% $8,458

High 3.5% $1,757

Moderate 84.3% $179

Low 9.4% $91

None 0.3% $454

Total 97.6%b

Source: GAO analysis of data MSHA penalty and violation data. 

Note: These data represent the points accumulated under the former assessment process. MSHA 

expects its new regulations to result in higher proposed penalty amounts for each of these categories. 

a

Each subelement of gravity is an exclusive category.

Page 16 GAO-07-855T 
b

Percentage does not add to 100 due to a small amount of missing data. 

c

We did not calculate the average proposed penalty for the number of miners, because most (75 

percent) of the violations involved only one miner. 

MSHA recently changed its regulations governing civil penalty 

assessments to update them and increase proposed penalty amounts, and 

to implement the new civil penalty requirement of the MINER Act. The 

new regulations will increase the points for most of the six statutory 

factors, and MSHA officials predicted that the new penalty structure will 

increase total proposed penalties by 234 percent. For example, these 

changes will increase the maximum points allotted for gravity from 30 to 

88 points. MSHA officials asserted that these changes will likely lead to 

greater rates of compliance and subsequently a safer working environment 

for the nation’s miners. 

Between 1996 and 2006, approximately 6 percent (31,589) of the penalties 

proposed by MSHA for violations of underground coal mine safety and 

health standards were contested by mine operators, and about half of the 

contested penalties were reduced. The average amount of a contested 

penalty was $1,107, compared to an average of $176 for a noncontested 

penalty, and more than half of all contested penalties were for the most 

serious violations.22 Almost half of all penalties contested by underground 

coal mine operators are reduced through the appeals process, even those 

involving the highest levels of gravity and negligence. From 1996 to 2006, 

47 percent of all contested penalties (14,723 penalties) were decreased 

from the amount originally proposed by MSHA. On average, these 

penalties were reduced by about half of the amount initially proposed by 

MSHA using its standard formula.23

While all of the entities involved in the appeals process—the Labor’s 

Solicitor’s Office, MSHA’s conference litigation representatives (CLR)24, 

and the Commission’s administrative law judges (ALJ)—are required by

 22Sixty-three percent of contested penalties are considered “significant and substantial,” 

or “S&S,” violations. An inspector designates violations as S&S if they are deemed at least 

reasonably likely to cause an injury that results in lost work days. This designation can 

trigger more serious sanctions, such as closing a portion of a mine or closing an entire 

mine. 

23For more detailed information about penalty reductions, see GAO-07-622. 

24CLRs are MSHA enforcement staff and are located in every MSHA coal district. They have 

been provided with specialized legal training and are authorized by the agency to negotiate 

settlements for penalties that are no higher than $350 and are limited in legal complexity. 

Page 17 GAO-07-855T 
law to apply the six statutory factors specified in the Mine Act, they are 

not legally obligated to use any particular method to determine a final

penalty amount when they determine that a reduction from MSHA’s 

proposed penalty is appropriate. As a result, they have considerable 

discretion in deciding on the final penalty amount. Officials from all three 

of the entities involved in the appeals process told us that in determining 

the size of a final penalty, they apply the six statutory factors on a case-bycase basis and use their professional judgment. For example, officials from 

the Solicitor’s Office and CLRs told us that, when appropriate, the 

Department of Labor generally views penalty settlements as being in the 

best interest of both the agency and the mine operators because 

settlements allow them to avoid costly litigation.

25 Attorneys from the 

Solicitor’s Office also told us that they analyze the evidence presented by 

MSHA inspectors and mine operators and assess their chances of winning 

the case in deciding whether to settle a case or go to trial. 

Prior decisions by the Commission require ALJ decisions to be sufficiently 

explained.

26 However, in some cases we reviewed, while the reasons 

supporting a reduction from MSHA’s proposed penalty are clearly 

explained, the rationale for the final penalty amount is not always well 

documented. For example, in one case decided in October 2005, the ALJ 

reduced MSHA’s proposed penalty from $50,000 to $10,000.27 Although the 

judge concluded that the gravity of the violation was less than MSHA had 

originally found, thereby supporting a penalty reduction, he appeared to

agree with MSHA’s assessment regarding the other five statutory factors, 

 25In addition to the general costs of litigation, in some cases, the Equal Access to Justice 

Act requires that the Department of Labor pay a mine operator’s fees and expenses, 

including reasonable attorneys fees, if the ALJ finds that the agency’s position was not

substantially justified, such as when an MSHA-proposed penalty is lowered significantly in 

formal proceedings. 5 U.S.C. § 504 and 29 C.F.R. Part 2704. 

26In August 2006, the Commission reminded ALJs of the importance of adequately 

documenting penalty decisions. Specifically, the Commission wrote “When . . . it is

determined that penalties are appropriate which substantially diverge from those originally 

proposed, it behooves the Commission and its judges to provide a sufficient explanation of 

the bases underlying the penalties assessed by the Commission. If a sufficient explanation 

for the divergence is not provided, the credibility of the administrative scheme providing 

for the increase or lowering of penalties after contest may be jeopardized by an appearance

of arbitrariness.” Jim Walter Resources, Inc., 28 FMSHRC 579, 606-07 (August 2006) (citing 

Sellersburg Stone Co., 5 FMSHRC 287, 293 (March 1983)). 

27Wabash Mine Holding Co., 27 FMSHRC 672 (October 2005). 

Page 18 GAO-07-855T 
including MSHA’s finding that the operator’s degree of negligence was 

high.28

In conclusion, the events of the last year heightened interest in protecting 

miners and preparing them for the perils in their workplace. While 

Congress, federal and state officials, mine operators, miners and their 

representatives have taken important steps to improve safety in mines, 

more can be done in several areas. First, without assistance for mine 

operators in providing training under simulated emergency conditions and 

adequate monitoring of instructors and the training miners receive, miners 

may not be able to safely and confidently escape a mine. Further, the high

rates of retirement eligibility among MSHA and NIOSH scientists and 

engineers as well as the need to work together under tight time frames 

may render current informal coordination ineffective, thus hampering the 

agencies’ efforts to speed the implementation of new safety technology in

mines. Similarly, the expected high attrition among MSHA’s inspector 

corps, coupled with the amount of time needed to train new inspectors to 

become proficient at their duties, calls for a more strategic approach. 

Absent a clear plan to address expected turnover, MSHA could jeopardize 

its success to date in reforming the inspector recruitment and hiring 

process. 

Finally, given the trends over the past 10 years, the higher proposed 

penalties under MSHA’s new penalty structure will likely lead more 

operators to appeal. As a result, it is important that decisions on contested 

penalties are transparent and contain the necessary information to 

understand how final penalty amounts are determined. Without such 

information, it will be difficult to monitor their decisions over time to 

ensure that all of the entities involved in the appeals process are 

appropriately and consistently applying the six statutory factors in altering 

penalty amounts and that the impact of penalties in protecting miners’ 

safety through greater compliance by mine operators is not diminished. 

In the reports, we made recommendations to the Secretaries of Labor and

Health and Human Services, and the Chairman of the Federal Mine Safety 

and Health Review Commission. These recommendations are designed to 

strengthen the efforts of Labor, MSHA, NIOSH, and the Commission by 

 28See also Jim Walter Resources, Inc., 28 FMSHRC 1068 (December 2006) and Jim Walter 

Resources, Inc., 28 FMSHRC 579 (August 2006). 

Page 19 GAO-07-855T 
• improving mine operators’ access to information and tools for 

training their workers, 

• strengthening MSHA’s oversight of training, 

• improving the effectiveness of information sharing between MSHA 

and NIOSH, 

• strengthening MSHA’ s human capital strategic planning efforts, and 

• ensuring that there is transparency in final penalty amounts for 

appealed cases. 

Each agency generally agreed with the recommendations after reviewing a 

draft of the reports. 

Mr. Chairman, this concludes my statement. I will be pleased to respond to 

any questions you or other members of the committee may have. 

For further information, please contact Daniel Bertoni at (202) 512-7215.

Individuals making key contributions to this testimony include 

Revae Moran, Sara L. Schibanoff, and Rachael C. Valliere. 

GAO Contact and 

Staff 

Acknowledgments 

(130674) 

Page 20 GAO-07-855T 
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