By Vin Gurrieri

Law360 (July 28, 2020, 10:05 PM EDT) -- The Mine Safety and Health Administration should keep close tabs on coronavirus outbreaks among miners and use that that information to consider reversing course on its decision not to set an enforceable safety standard, the Labor Department's internal watchdog said in a new report.

The audit by the DOL's Office of Inspector General, dated July 24 and disseminated Tuesday, was conducted to examine plans and guidance that MSHA has developed in response to COVID-19 and assess whether the pandemic has impacted MSHA's ability to protect the safety of miners or agency personnel.

The OIG outlined several impediments to MSHA fulfilling that mission, including reduced enforcement activity, unavailability of mine inspectors, shortages of personal protective equipment, and an inability to enforce guidance issued by the agency or by the Centers for Disease Control & Prevention.

While the OIG said that MSHA has issued voluntary guidance that recommends social distancing and other safety protocols, it said the agency needs to do more since its guidance can't be enforced "unless [MSHA] issues an emergency temporary standard."

"MSHA has decided to not issue an emergency temporary standard because it cites a number of regulations it could apply during a pandemic," the OIG said in its report. "However, the regulations do not appear to cover all the aspects of a pandemic, such as cleaning and disinfecting all equipment before use, wearing necessary PPE for pandemics, and social distancing in locker rooms, elevators, mantrips, or vehicles. Having the proper enforcement tools to enforce a safe working environment is a critical component of protecting miners from COVID-19."

As one of its recommendations, the OIG said MSHA should keep an eye on COVID-19 outbreaks at mines to determine whether an enforceable standard or other safety measures are needed.

"Using this information, MSHA should reevaluate its decision not to issue an emergency temporary standard related to the COVID-19 pandemic so it can better protect both miners and its workforce," the OIG said.

In response to the OIG's findings, assistant secretary of labor for mine safety and health administration David Zatezalo said in part that he agrees with the OIG's recommendation and noted that his agency has the authority to issue an ETS so long as it determines that miners are in "grave danger" and that such a standard is needed to protect miners from that danger.

But that threshold has yet to be met, according to Zatezalo.

"MSHA understands the seriousness of the pandemic," Zatezalo said. "However, the agency must determine the need for an ETS based on facts and evidence, and currently, MSHA has determined that no grave danger exists at mines to warrant an ETS."

The MSHA head noted that existing safety and health rules that mine operators must follow cover issues like sanitation and personal protective equipment, among other things, and that inspectors when they conduct regular inspections "look for compliance with all mandatory standards," including those that protect miners from workplace hazards connected to the virus.

Zatezalo noted that MSHA has cited mine operators 62 times between March 1 and May 15 for "COVID-related violations," while adding that the agency's existing standards combined with inspectors' presence at mines allows MSHA to adequately respond to the pandemic, according to his written response to the OIG.

Moreover, he also criticized the internal watchdog for not including feedback in its report from industry groups, some of which have taken positions in court supporting MSHA's approach.

The issue of whether a binding, temporary workplace safety standard should be issued during the pandemic by MSHA or other workplace safety watchdogs like the Occupational Safety and Health Administration has been a fraught one over the past few months.

The DOL, which houses both MSHA and OSHA under its umbrella, has resisted calls from some lawmakers, workers' advocates and unions to issue any binding workplace safety baseline. Proponents of a standard have also found little success in convincing courts like the D.C. Circuit to force the agencies to issue emergency temporary standards.

Earlier this month, the D.C. Circuit rejected a bid from a coalition of mining and steel unions to make MSHA issue an ETS.

Although the appeals court deferred to the agency's stance that a rule isn't needed, it noted that "in view of the ever-developing situation with COVID-19," the coalition of workers' advocates could renew its petition if the existing procedures prove inadequate.

--Editing by Emily Kokoll.

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