A Resource Blog on MSHA and Above Ground Aggregate Mines

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Thanks for stopping by to take a look! We hope that you will find some useful information as you browse this site. We welcome you as part of this informal group where we can communicate about what is going on in the industry regarding MSHA. Please feel free to leave your comments (but remember that MSHA does read this site too.) To contact us through the phone or email with your stories and concerns, call Cary or Kathy Matthews, at 541-536-1771 or 541-410-4673 (Cary's cell). Our fax number is 541-536-1772. You can email us at: lapineredimixinc@hotmail.com

New blog posts are featured on this page, and other information is found by category by clicking on the pages links above.

We encourage you to join up with your local aggregate association, because there is strength in numbers. If there is not one in your area yet, please consider forming one.

Take care, and remember to be in contact with your state officials to voice your concerns about MSHA. Our tax dollars pay for MSHA, which is under the Department of Labor. Our fine money goes into the general fund, and we cannot afford to keep paying out costly fines on the more and more frequent trivial citations to essentially support government spending. At least that is how I feel about it.

~ Kathy


Training Tips for a MSHA Inspection

Be courteous to the inspector. Have your camera (or video camera) and notepad ready, to help document what you and the inspector discussed during the inspection. After the inspector has left, write yourself a report on the meeting and develop your pictures. If you do not agree with the inspector's findings, your notes will help later on.

You have the right to be treated fairly and with respect. Mine owners are also taxpayers, and your taxes pay for MSHA.

Make sure to have all of your paperwork up-to-date and in order. The inspector will be looking at the following things in your office:

[] Part 41 Legal Identity

[] Part 56 Safety Standards

[] Safety and Health Audit

[] Health and Safety Policy

[] Part 46 or 48 Training Plan

[] Part 46 or 48 Records of Training

[] Part 47 HAZCOM

[] Part 50 Accident Reporting

[] Part 50 Quarterly Reports

[] Part 62 Occupational Noise

[] Citation and Order Review

[] Miner Rights

[] First Aid

[] Fire Fighting Equipment Inspection
(annual and monthly inspections on your fire extinguishers)

[] Part 45 Independent Contractor

[] State Grants Contacts

[] Education Field Services Contacts

[] Continuity and Resistance Test

[] Mobile Equipment Exams - Checklists

[] Workplace Examinations - Checklists

[] Guarding

[] Occupational Dust Control

[] Risk Assessment

[] Holmes Safety

[] Site Specific Hazards

Keep up on your housekeeping. Make sure that there are no tripping hazards. Keep the outside of your property clean and organized.

The following are things that inspectors consistently look for, so make sure that these are always up to standard:

[] Guarding moving machinery

[] Horns and backup alarms

[] Safety defects

[] Electrical conductors

[] Guard Construction

[] Parking Brakes

[] Berms or guardrails

[] Quarterly reporting

[] Ground system tests

[] Wire and cable insulation and fittings


[] Chock your own vehicles and all equipment when in the quarry.

[] Make sure everybody always wears a hard hat in the quarry.

[] Post the quarry speed limits and other pertinent signage.

[] Make sure that your loaders and other quarry vehicles
do not have cracked windshields, and that their horns and back-up alarms work properly.

[] Inspect your fire extinguishers every month and record this in your paperwork.

[] Make sure that all employees know where your MSDS book is located and that they know how to use it.

[] Make sure that all employees know what to do in case of a fire in the pit.

[] Make sure that people who do work for you in the pit but who are not employees (such as Les Schwab) are registered with MSHA.

Blocking Raised Equipment Safely from the MSHA Safety Log:

Blocking Raised Equipment Safely

Good practices to observe while
working on raised equipment.

* Prepare the supporting ground or floor surface with bearing plates or floor surface with bearing plates or blocks to ensure stability of the load.

* Clear sufficient working space around the equipment.

* Use only wood blocks that are solid; discard blocks with twists or decay.

* Inspect blocks and jack stands during loading and correct any signs of shifting or tilting.

* Metal to metal contact may cause equipment to shift or slide, use proper blocking materials and keep the load level.

* Ensure that all chains and slings are properly rated for the load, are in good condition, and have safety catches as needed.

Fall Protection from the MSHA Safety Log:

Fall Protection

There is no such
thing as a "safe" height.

* Fall protection is required whenever there is a danger of falling.

* Assess all work from elevations for fall hazards --plants, buildings, trucks, highwalls and equipment.

* Cover or guard all floor and wall openings.

* Train all workers to recognize fall hazards.

* Beware the "temporary" job -- address fall protection hazards even for tasks of short duration.

* Ensure that drillers and contractors have a specific fall protection program for your mine site.

* Examine the work site for fall hazards before jobs begin.

Highwalls, Banks and Haulage Roads from the MSHA Safety Log:

Highwalls and Banks

Falling and Sliding Material

Unstable highwalls and banks with falling or sliding material can create potentially dangerous conditions.

* Use mining methods that maintain highwall, material, and bank stability.

* Experienced competent persons should contiually evaluate bank and highwall conditions.

* Re-examine the site after every rain, freeze or thaw.

* Scale hazardous areas from a safe location before performing other work.

* Cut back to angle of response to control spoil material piles.

* Construct benches as needed to protect workers from material that may slide or slough from the highwall.

* Closely check the edge of dump sites above highwalls for cracks or sloughs while approaching the dump site.


Haulage Roads

Road Maintenance and Housekeeping

* Maintain the roadway.

* Avoid spillage by not overloading haulage trucks.

* Maintain berms.

* Sand and/or deice icy conditions.

* Maintain traffic control signs.

* Grade the road surface to eliminate unnecessary bumps that cause bouncing and vehicle wear and tear.

* Clear or report all rocks, spills or loose materials right away so the hazard can be removed.

* Make sure the rules of the road are communicated to all visitors and haulage contractors.

Conveyor Safety and Electical Safety from the MSHA Safety Log:

Conveyor Safety

Best practices for operation and maintenance.

* Always Stay Alert!

* Lock out the conveyor power switch and tag it before you work on that conveyor.

* Align the belt from a safe place and only after you're sure the conveyor can't grab you.

* Return idlers look safe, but they can hurt you. Never try to fix or adjust them while the conveyor is running.

* Conveyor stop cords are for your safety. Check them periodically to make sure they actually work.

* Use a harness or safety belt and line when working where you can fall from a conveyor.

* A clean walkway means a safer walk. Keep conveyor walkways clear. Cross conveyors only at crossovers.

* If the belt is in motion, don't manually apply belt dressing. Only pressurized dressings can be put on while the conveyor is running.

* Don't clean running conveyor pulleys.

* Don't use a shovel, hoe, or other hand tool to clean material buildup from a belt that is running.

* Don't try to dislodge rocks from pulleys while the conveyor is running.


Electrical Safety

Best Practice Tips

Accident Prevention:

* Only trained and experienced electricians should work on electrical equipment.

* Work should be performed only on de-engergized electrical installations unless necessary for the work or repair process.

* Lockout and Tagout safeguards should be installed and removed by the person doing the work --- do not rely on others.

* Ensure grounding devices are maintained and tested as required.

* Call for repairs promptly when deficiencies or defects are discovered.

* Maintain ample clearance from overhead power lines.

Personal Protective Equipment from the MSHA Safety Log:

Personal Protective Equipment

Dress the Part for Your Work

* Wear Personal Protective Equipment that is properly designed and maintained for your job.

* Replace defective PPE right away.

* Protect from all hazards --- Noise, Vision, Chemicals, Dusts, Falling Objects, Falls from Heights and Vehicle Collisions.

Heat Related Injuries from the MSHA Safety Log:

Heat Related Injuries

From Minor to Critical Life Threatening


* Heat Cramps: Minor effect of water and salt loss.

* Heat Exhaustion: Headache, Nausea, Weakness.

* Heat Stroke: This is Dangerous! The worker may experience confusion and seizures. Ski is try as perspiration has stopped because the body can no longer regulate temperature.

Preventative Measures

* Dehydration is easier to prevent than to treat: drink fluids in frequent small amounts rather than in large amounts at one time.

* Wear light colored clothing.

* Alternate work and rest cycles during extreme temperatures.

SLAM Risks from the MSHA Safety Log:

SLAM Risks

Risk Assessment Program

Stop - stop and consider the work involved

Look - look for and identify the hazards

Analyze - analyze what needs to be done

Manage - manage safety by developing and implementing controls

Remember - remember to look for changes

Identify - identify all potential risks

Share - share what you find and include other impacted by the job and the risks

Know - know what others on your jobsite are doing

Safety - safety is everyone's job!


S.L.A.M. Safety and
Production Sheets:

Date: _______________

Supervisor: ___________

Plant: _______________

Stop: Type of work to be performed - __________________________________

Look: What type of hazards are involved with the work?

1. ________________________________
2. ________________________________
3. ________________________________
4. ________________________________

Analyze: What tools, supplies, or training will we need?

1. _________________________________
2. _________________________________
3. _________________________________
4. _________________________________

Manage: What precautions will we take to eliminate the hazards?

1. _________________________________
2. _________________________________
3. _________________________________
4. _________________________________

Crew's initials:

Miners' Rights and Holmes Safety Association from the MSHA Safety Log:

Miners' Rights

The Federal Mine Safety and Health Act of 1977

The Federal Mine Safety & Health Act of 1977 ("the Act") gives individual miners the following rights:

* The right to have a representative of the miners accompany Federal inspectors during inspections at a mine.

* The right to obtain an inspection of the mine where there are reasonable grounds to believe that an imminent danger, or a violation of the Act or a safety or health standard exists.

* The right to pay during certain periods of time when a mine or part of a mine has been closed because of a withdrawal order.

* The right to be protected against discrimination based on the exercise of rights given by the Act.

* The right to receive health and safety training.

* The right to be informed of, and to participate in, enforcement and legal proceedings under the Act.


Joseph A. Holmes Safety Association

Promotes Safety and Health in the Mining Industry

The Professional Miner Program recognizes the high level of skill, knowledge, and professionalism that miners bring to the work that's so important to our way of life.

Miners who join the program can receive recognition for their years of accident-free working. They will also receive information and tools that will help them maintain their leadership in safe and healthy workplaces.

Go to www.msha.gov and follow the Professional Miner link for more information and application.


Mining and Petroleum Training Service: (see M.A.P.T.S. link on sidebar for valuable information and downloadable forms)

MSHA Helpers

These forms are for your use. CAUTION: Use at your own discretion. MAPTS accepts no reponsibility. Most of these documents were developed by MAPTS, others are so useful that we just had to share them with you.

Training Plan for Part 46 Mines - SAND AND GRAVEL OPERATIONS

30 CFR Part 46.3 requires that Part 46 mine operators develop a training plan that outlines their company's procedure for training miners. We've attached a blank, interactive form that you can use to develop your plan; plus an example for a fictious company to give you an idea of what a completed plan might look like. In addition to the training plan for miners, the mine operator must implement a method that informs visitors of mine hazards. This may be accomplished by signage at the mine and, as demonstrated here, the use of a site-specific hazard awareness training plan.

Part 46 Training Plan Example; Part 46 Blank Training Plan
Site Specific Example #1; Site Specific Example #2; Site Specific Training Certificate

Machine Guarding

Presented at MSHA's Spring Thaw in Anchorage, this powerpoint presentation is shown in conjunction with MSHA's DVD: Junkyard Guards. Discusses risk assessment (briefly); aftermarket "homemade" maching guarding; and fatalities associated with lack of guarding.


Take all of those MSDS' out of your file cabinet and put them into a binder that is accessible to all your employees. To make your life easier, we've created pages that go into a binder, along with a Hazardous Chemical Inventory form, which has fields that you can type into. All you need is Adobe Acrobat Reader.

Haz Com Program Example; HazCom Binder Pages ; Hazardous Chemical Inventory Form

Examination of Workplaces

MSHA 56.18002 requires that a competent person examine each working place at least once every shift for conditions that affect safety and and health; in addition, a supervisor is required to examine these as well. We've developed a daily sign-off form for the employee and supervisor to use.

Vehicle Accident Checklist

Not an MSHA requirement. Toss this checklist in the glovebox of each vehicle, along with a disposable camera. In the event of an accident, it prompts your employees to document pertinent information that may be crucial later.

First Aid

Use our First Aid Plan Evaluation form to help you see gaps in your program, or help put all your reponse information in one place. Another tool that students enjoy receiving is our CPR Prompt card. Use the template to print cards, cut them out and laminate for handy wallet cards. Emergencies are stressful enough without wondering if you remember the proper technique.

Mine Open/Close

We've taken MSHA's Mine Open/Close form and made it interactive. The form provided here is for Alaska. We can alter it at your request. Email us at mapts@alaska.net

Part 46 Mine - Concrete Batch Plant - Aggregate Operations

This was developed to help operators of Part 46 Mines understand how task training affects their employees. This document uses employees of a concrete batch plant/pit as an example.

SOA Basic H&S Program

Does your company have a basic health and safety program? The State of Alaska has developed this document to assist you in developing your own H&S program. This is not an MSHA form, but important just the same.


MAPTS has developed a powerpoint presentation that addresses Blasting Awareness. Adapt this presentation to your own needs. BLASTING AWARENESS POWERPOINT (11.4 MB)


MAPTS has developed a powerpoint presentation that addresses "Complacency in Safety". Highlighted is Unocal's Bhopal India disaster. While not mine or MSHA related, it effectively demonstrates the trickle down effect caused by complancency. MAPTS provides this presentation to all MSHA State Grant recipients free of charge. Email us if you'd like a CD version.

Mining and Petroleum Training Service
162 College Road
Soldotna, Alaska 99669
(907) 262-2788;. Fax: (907) 262-2812
(907) 786-6413 - Anchorage


Rock Law 2007
by Patton Boggs LLP, Attorneys at Law

December 2007

The Five Simple Truths

A condensed guide to surviving encounters with the ever-changing
Mine Safety and Health Administration.

by Henry Chajet

The first simple truth needed to survive the new MSHA
is to understand that inspectors are not your friends.

Hopefully, you do not need a Washington, D.C., attorney to
tell you that the Mine Safety and Health Administration (MSHA) is a dangerous agency.

Coal mine disasters continue to prompt Congress and
the unions to attack MSHA for a perceived lack of
enforcement. The result is that MSHA is lashing out
at employers, including non-coal mines, quarries, and
cement facilities, increasing enforcement and penalties
at a record pace.

The risks have become massive.
Housekeeping citations — spilled product — are being
issued as “unwarrantable failure” high-negligence
violations, while light bulbs without guards are being categorized as “significant and substantial” hazards
likely to cause death. Maximum fines are up to $220,000
per flagrant violation, a new term created by Congress that MSHA
defined as including repeat, unwarrantable failures.

Accidents and injuries draw a particularly harsh
enforcement as MSHA tries to prove its enforcement
dedication to its critics (one recent tragic fatal accident
resulted in more than 100 citations). Without an injury,
simple, non-hazardous violations that one year ago may
have been fined $60 to $300 are now penalized thousands
of dollars. Worse yet, a new statistical calculation of
a “pattern” of significant and substantial violations will
cause endless closure orders at MSHA designated mines.

The first simple truth needed to survive the new
MSHA is to understand that inspectors are not your friends.

It is not business as usual,
and they are not at your
facility to help you, regardless of past friendships,
professional respect, your outstanding safety
accomplishments, or their shared dedication to protecting
the workforce.

When something goes wrong, the stuff will hit the fan.
Even routine product spills and technical violations will
impose massive costs, risk of shut downs, and severe enforcement penalties. Yet, cooperation with MSHA
(and any state or federal agency) is required to successfully endure inspections and investigations by these government agents that
recently have begun describing their role
as “law enforcement” officials.

The second simple truth is that mine and quarry
operators must know their rights and duties to stay out of trouble,
and they must understand that the penalty for ignorance can be jail,
significant monetary fines, and
MSHA closure orders.

The most important mine operator rights and duties
include the following:

The right and duty to manage, including training employees
to comply with safety rules, and enforcing those rules with even-handed discipline. Ignoring infractions (or
management engaging in them) will be used by MSHA
to prove a high level of negligence or guilt, while enforcing
rules is a “mitigating factor” that reduces negligence and penalties associated with violations.

Never lie, never falsify a document, and never mislead or conspire to mislead MSHA. Not only is it morally wrong,
but these are felonies that carry potential five-year prison
terms, each, and are not worth risking to “cover up” what
at most may be a willful MSHA criminal regulatory
violation a misdemeanor, with a maximum one-year
sentence and most likely can be settled as civil fine.

Never admit prior knowledge of a violation or hazard.
While lying is not an option, silence is your right (freedom
of speech and freedom not to speak). MSHA inspectors
strive to obtain “admissions” from management agents (e.g. foremen, supervisors, and plant managers) because
admissions make proving their case easy.

The third simple truth that foremen, supervisors,
and site managers must learn is that they can be fully cooperative
without making damaging admissions.
Management agents who are asked, “How long have
you known about this?” (or any similar question
aimed at establishing prior knowledge) should be taught
that truthful, cooperative answers do not require
admissions. In fact, they may include: “I don’t feel like
talking about that,” and “We’ll make sure it gets fixed
right away and doesn’t happen again.”

The fourth simple truth is that, yes, MSHA might
get suspicious if you refuse to answer an incriminating
question, or refuse to be interviewed, but so what?
Better to exercise your constitutional rights and have
them suspicious than to give MSHA your own words to
use against you and waive your rights without any
warning (no Miranda warnings are required from
MSHA nor given by inspectors).

The fifth simple truth is that during an inspection
or investigation, MSHA is only entitled to documents
required by law or regulations. You will waive the
company’s right to maintain confidential its documents
by voluntarily giving them to MSHA, following an MSHA request.
Or, you can refuse or delay, politely referring
to the company’s document confidentiality policy, and
asking for a written request for company review. When
in doubt about whether a document is required by MSHA
rules, you can delay your response or ask MSHA to
show you the regulation, which requires the particular requested
document (e.g. MSHA training records
and MSHA work area inspection records are mandated
by 30 CFR, but maintenance records are not).

There are many more MSHA lessons worth learning
that space does not permit covering in this article.
These five, however, form the core of an MSHA
risk-reduction strategy taught in our management
seminars. Every management official under MSHA
jurisdiction should adopt them.

Knowledge and training is the key to surviving the
new MSHA."

Issue Date: NAQN MARCH 2009, Posted On: 2/4/2009

When MSHA or OSHA comes calling
Willa Perlmutter, Crowell & Morning, LLP, offers tips on how to host an on-site visit from MSHA or OSHA.
by Jon M. Casey
HERSHEY, PA — When businesses face the prospect of an inspection from MSHA or OSHA, managers need to know what is expected to stay in compliance. They also need to know what can be done to avoid problems on a larger scale, problems that can result from warnings or citations from either of these regulatory agencies. According to Willa B.
Perlmutter, counsel with the Washington, D.C. law firm of Crowell & Moring LLP, planning is essential.

Perlmutter was addressing quarry management personnel at the 2008 annual meeting of the Pennsylvania Aggregates and Concrete Association annual meeting held recently in Hershey, PA. There she said, “The more you have nailed down and know what you are going to do in a particular situation, the better prepared you are going to be to handle the unexpected things that come up. If it looks like you know what you are doing, it will look as though you are serving as an advocate for your operation when they arrive,” she said.

“If you minimize chaos before they arrive, they will start from the assumption that this is what your operation looks like across the board. It gives them a certain confidence level in your operation.”

Perlmutter, whose practice targets administrative enforcement and other mining industry regulatory and legislative issues, cited a letter written on Oct. 20, 2008 by then presidential candidate Barack Obama to John Gage, national president of the American Federation of Government Employees, AFL-CIO. In it, Obama said that should he win the presidential election, under his administration MSHA could be expected to change ways that will affect quarry operators and their employees. Now that he has won, the changes can be expected.

The Inspection:

Perlmutter said that when an inspection takes place, it is a good practice to have one company representative devoted to overseeing the inspection. In this way, the company can determine who is taking the inspector around the facility and it will limit any discrepancies that might occur should a different inspector from the initial one become involved in the visit. She said it also allows an opportunity to monitor any conversations that inspectors might have with people on the job, something that is well within the regulator’s scope of responsibility.

Note with whom the inspector had conversations with. Note too the time they had the discussion. She said it is permissible for the guide to know what was said and to write it down for future reference.

“There is nothing prohibiting a correction of information if the employee has errantly given information that is not correct,” she said. “It is important to make the corrections before it turns into a citation. Who it was and what they said is important.”

She went on to say that it is appropriate to ask inspectors what they are thinking in the way of what might be a violation. Ask if they plan to give a citation on that infraction.

“You may wish to say to the inspector, ‘What regulation is it that is in violation? We would be happy to correct it, but we aren’t clear on what the violation is.’ You may wish to take out your blue code book and ask the inspector to show you where the violation is,” she said.

“Immediately correct the violations and, if appropriate, challenge later,” she said. “Involve experts if necessary. Never speculate; stick to the facts. Do not admit to any infractions.”

Perlmutter said that after the inspector has arrived, it is reasonable to wonder if a lawyer should be called in on the business’ behalf. In many cases, it is better if a lawyer is not called in initially, giving the operator an opportunity to correct any deficiencies without litigation, she said. To the contrary, she emphasized that if there is a fatality on the jobsite or if community issues are the reason that the agency is involved, then getting legal advice is the better option.

“You want to establish a cooperative relationship with the inspector as a way to raise their level of confidence in you,” she said. “You want to be clear with inspectors from either MSHA or OSHA that you will cooperate with requests for documents if possible. If the inspectors require more than the Mine Safety and Health Act requires, tell the inspectors that they will have to make the request in writing. In this way, both sides are clear and there is no ambiguity about what is wanted. It also adds a layer of accountability.”

Perlmutter said that when it comes to trade secrets, OSHA has regulations to cover this situation, while MSHA does not. Since under MSHA guidelines there are no trade secret rules, some of the information you may not wish to be shared might include what specifically is being mined in a quarry. When dealing with OSHA on the other hand, the agency needs to know if a business is going to be disclosing trade secrets. When this happens, the business should be able to expect confidentiality on the part of the agency.

“You may not want to discuss quantities or things that you do not want your competitors to know about your operation,” she said. “You may want to say to the regulators that you will provide the information, but that you expect them to hold it as confidential information.”

Perlmutter said that every now and then, an inspector might request a demonstration of some activity. She emphasized that whenever that happens, do not conduct a demonstration. She noted that invariably, a demonstrator makes a mistake. That gives the agency cause to find fault with the process.

She said that if the company guide says stay with the inspector, the opportunity to minimize any penalty is best at the time of the inspection. By pointing out any deficiencies in the inspector’s observations at the time, it may reduce or eliminate a citation in the process. An example would be if an inspector believed they saw a need for a person to tie off when working from a height where there is in fact, no danger of that person falling.

Acknowledging the seriousness of a violation or unsafe condition will only increase the company’s exposure to being negligent in that situation.

“Avoid discussing how long a violation might have existed and whether anyone knew about it,” she said. “Do not give false or misleading statements. Do not give a needless rebuttal to a comment or discussion.”

Once the inspection is completed, insist on a closing conference. Ask for copies of samples, photos, and any information that will be helpful. Be sure to discuss how to abate any violations. Try to correct any misunderstandings. Ask questions. Re-emphasizing the need for management to avoid making any admission regarding violations or knowledge of any of the violation conditions, Perlmutter said anything that is said might be used to support their findings rather than being helpful to the company. “Never lie or intentionally mislead the investigator,” she said.

Do we need a lawyer?

Perlmutter summarized briefly by saying that a company might wish to contact legal assistance if it is clear that legal advice is needed during the inspection. This is usually the best decision when there is a fatality or the community is affected in some way. Other reasons to consider legal counsel could be if costly abatement is needed, if there will be high penalties or if there are flagrant violations at a worksite. If there is a serious accident, possible criminal activity, or a regular pattern of violations, a lawyer might be an asset in these cases as well.

While the aforementioned tips only begin to offer help in understanding how to work with OSHA and MSHA when an inspection takes place, Perlmutter reminded PACA members that there are several ways to work with these two agencies. She stressed that often, the nuances of the process require someone with previous experience in that arena for best results.

For more information on how to prepare for OSHA or MSHA contact Perlmutter online at www.crowell.com/Professionals/Willa-Perlmutter or via e-mail at wbperlmutter@crowell.com.


Article from Rock Products:

MSHA Inconsistency Voids Guarding Citation in two Cases

Penton Media - Rock Products, Click Here!"Two recent cases before Federal Mine Safety and Health Commission Administrative Law Judges addressed MSHA's interpretation and application of its guarding standards. Where MSHA failed to give appropriate notice of what was required to serve as an “adequate” guard, the court refused to uphold the citation; in other instances, it rejected MSHA claims of “significant and substantial” violations involving high negligence.
Guarding always has been a controversial subject when it comes to MSHA enforcement, because the concept of what is an “adequate” guard is subjective, and there always is some degree of debate over whether one must guard to simply avoid accidental contact with moving parts, or whether one must guard against intentional stupidity. The latest pair of decisions (one in the aggregates industry, one in coal) provide a bit of guidance on how the judges are applying the law these days.


In Sangravl Company Inc. (ALJ Hodgdon, Nov. 26, 2008), the small Tennessee sand and gravel company received and challenged five citations that carried a proposed total penalty of over $4,000 — several of which involved guards. The company had only four individuals working at the time of inspection, none of whom were in the vicinity of the guards at issue — they were a crane operator, the plant operator, a truck driver and a front-end loader operator. Moreover, the plant was not running on inspection day, due to a shortage of sand.
The first citation issued under 30 CFR 56.14107(a), claimed that a return roller on a conveyor was guarded and that it had moving parts 4 to 5 feet above ground level, and that the roller was 4 to 5 inches in diameter. The cited standard states: “Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and take-up pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” In the citation at issue, there were partial guards on each side of the conveyor roller, but the bottom portion was unguarded. The president of Sangravl Company Inc. testified that the previous inspector approved the existing guarding and that no miners clean up or work under the plant while it is running.
ALJ Hodgdon found the chance of a miner inadvertently contacting the roller — while not impossible — was extremely unlikely. There was no evidence that the roller was worked on while running, and none of the four employees' job assignments were located near the roller.


The judge vacated the citation because the operator did not have notice that the roller was not properly guarded. He quoted the Commission's 1990 ruling in Ideal Cement Co.: “It is appropriate to evaluate the evidence in light of what a ‘reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have provided in order to meet the protection intended by the standard.’” MSHA had initially recognized that the previous inspector had approved the guard, but thought this warranted only a reduction from “high” to “moderate” negligence. The judge disagreed, and said that because the previous inspector — a person “familiar with the mining industry and the protective purpose of the standard” had okayed the guard, there was no way for the operator to know that the guarding was inadequate. Therefore, the citation was vacated.


A second guarding citation in this case was not vacated, but was modified from S&S to non-S&S. This involved a conveyor head pulley that had a portion unguarded 4 to 5 feet above the ground and had protruding bolts that supported the bushing. In analyzing the gravity of the violation, ALJ Hodgdon noted that the agency must establish a violation of a safety standard, a distinct safety hazard contributed to by the violation, a reasonable likelihood that the hazard would result in an injury, and a reasonable likelihood that the injury would be of a reasonably serious nature. The company witnesses testified that employees do not frequent the cited area when the plant is running because water flows over the equipment, and they avoid it in order to stay dry. The judge agreed that because employees would rarely be in proximity, it was unlikely that any contact would occur with moving parts. Therefore, the violation was not S&S. He also rejected MSHA's claim that this was a “high” negligence violation, and he reduced the negligence to “moderate.” A third guarding violation was affirmed as S&S, but the judge again reduced the negligence to “moderate.”


In the coal mine guarding case (where an absent guard was cited under 30 CFR 77.400(a)), ALJ Feldman disagreed with MSHA's claim that the violation was S&S, although he did find that a guard was needed in an area that was infrequently traveled, where the moving part was adjacent to a highwall, and the area was only accessed by a crossover constructed over the beltline. Reference: Process Energy (ALJ, Nov. 17, 2008). The language of the cited standard is not identical to the metal/nonmetal rule, but is the functional equivalent: “Gears; sprockets; chains; drive heads; tail; and takeup pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and similar exposed moving machine parts which may be contacted by persons, and which may cause injury to persons, shall be guarded.”
In affirming a violation, albeit modified, ALJ Feldman reminded the parties that the “controlling case” on guarding violations is the Commission decision in Thompson Brothers Coal Co. (FMSHRC 1984). In that case, the Commission stated:
We find that the most logical construction of the [guarding] standard is that it imports the concepts of reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. In related contexts, we have emphasized that the constructions of mandatory safety standards involving miners' behavior cannot ignore the vagaries of human conduct…. Applying this test requires taking into consideration all relevant exposure and injury variables, e.g., accessibility of the machine parts, work areas, ingress and egress, work duties, and as noted, the vagaries of human conduct. Under this approach, citations for inadequate guarding will be resolved on a case-by-case basis.


The Sangravl case had one other interesting citation at issue — this involved a rusted “H” beam at a screening tower, which MSHA cited under the generic “defects affecting safety” standard (30 CFR 56.14100(b): “Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” This standard is typically cited for mobile equipment hazards (e.g., missing steps or windshield wipers, or malfunctioning lights), or for smaller tools that have problems such as a mushroomed hammer head or a poorly repaired come-along. It is quite unusual to apply this to a structural condition in a mine building.
Here, the inspector alleged there was “significant” rust between two lateral runners on the H beam, which was 15 feet above the ground. A portion of webbing was missing, and the inspector hypothesized that it had been in this condition for about six months. The inspector graded it as “S&S,” speculating that if it continued to rust, it could fall, and that the entire area could collapse, and could knock over an electrical box next to the control house causing an electrocution hazard. In the alternative, he argued that it could strike an employee if one were working underneath when it eventually collapsed.
The judge did affirm application of the “defect” standard to the structural element of the tower, but found it was not S&S because it was unlikely that the control house would collapse or that anyone would be in the area if the beam did eventually fall. Operators should be on notice, however, that this ruling will likely encourage other inspectors to use this “catch-all” standard for building defects in addition to those of tools, machinery or mobile equipment."


Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com


Court Allows MSHA to Cite Multiple Employers

"The U.S. Court of Appeals for the Fourth Circuit affirmed citations issued to a mine operator for the sins of its contractor. More disturbingly, in the case of Speed Mining Inc. v. FMSHRC, the appeals court held that MSHA had “unreviewable discretion” to cite the mine operator (or owner), the contractor or both in such circumstances. Another U.S. Court of Appeals — for the D.C. Circuit — came to the same conclusion in 2006, in the Twentymile Coal case. Having the new decision affirm the authority of MSHA, and some statements made by the judges that this power is “settled law” will make it far more difficult for production operators to distance themselves from violations over which they have little control and may have no prior knowledge.


The Speed Mining Inc. (SMI) case has been in the courts for a while, and the facts presented are worth some consideration. SMI is the owner-operator of an underground coal mine in West Virginia, and it engaged a contractor (Cowin and Co. Inc.) to sink an elevator shaft at the mine. The court found it somewhat significant that, when retaining Cowin, SMI did not check its history of safety violations nor its history concerning employee injuries … and that Cowin's injury rate was four to 10 times higher than the national average over the preceding eight years.
SMI and Cowin's contract gave Cowin “almost complete discretion” to sink the shaft as it saw fit and specifically stated that Cowin “maintained complete control at all times over its employees and any Subcontractors, Vendors or others working under Cowin's supervision.” The contractor also explicitly said that Cowin was responsible for complying with all laws, rules, order and regulations — federal, state and local — applicable to the sinking of the mine shaft.
In August 2004, Cowin began work and MSHA issued four citations to Cowin a month later (but not to SMI). A second independent contractor at SMI's site (American Electrical Inc.) also received citations. SMI only was cited in relation to that contractor for failure to provide hazard training to the electrical contractor's workers. Weeks later, an accident occurred at Cowin's shaft-sinking site, when a crane hoist failed and a six-ton bucket fell near five Cowin employees. No one was seriously injured. In addition, no SMI miners appear to have had any exposure to the hazardous condition.


MSHA cited Cowin for six violations of the agency's safety standards: failure to correct crane defects, failure to adequately train its operator, failure to comply with the MSHA shaft-sinking plan (two citations), failure to remove the crane from service, and failure to do an adequate pre-operational check of the crane. SMI received six citations, nearly identical to those issued to Cowin, except that SMI was charged with a lesser degree of negligence.
SMI contested its citations and, based on the then-precedential ruling by the Commission in Twentymile Coal (which held that MSHA abused its discretion in citing a production operator for contractor's violations), an Administrative Law Judge agreed to vacate SMI's citations. MSHA appealed to the Commission, and the case was stayed because the Twentymile Coal case was pending appeal to the D.C. Circuit of the U.S. Court of Appeals.
In July 2006, the D.C. Circuit held that the Secretary of Labor possessed discretionary authority to “cite owner-operators, their independent contractors, or both for safety violations committed by the independent contractors,” and that the Commission lacked authority to review these discretionary decisions. Subsequently, the Commission remanded SMI's case back to the ALJ, who affirmed all six citations based on the Twentymile ruling. The Commission denied SMI's petition for discretionary review, and its appeal to the Fourth Circuit followed.


SMI made two arguments: (1) The Mine Act bars the Secretary from citing an owner-operator for violations committed by an independent contractor; and, in the alternative, (2) that even if the Secretary had discretionary authority, she abused her discretion in the SMI case. The first argument rested on language in Section 104(a) of the Mine Act, concerning the Secretary's citation power. It states:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator … has violated [the Act], or any mandatory health or safety standard, rule, order or regulation promulgated pursuant to [the Act], he shall, with reasonable promptness, issue a citation to the operator.” [emphasis added]
Since another provision of the Mine Act deems both production operators and independent contractors to be “mine operators” by definition, SMI argued that the use of the definitive article “the” before operator in Section 104(a) indicated that the Secretary only had statutory authority to cite “the operator” that “has violated” the standard. Since Cowin, not SMI, violated the standard and was “the operator,” MSHA lacked authority to cite SMI, it argued.
The Secretary's counsel rebutted that this was a fundamentally flawed interpretation of the statute, and the Fourth Circuit agreed that the Act granted the Secretary discretionary authority to site either the production-operator, the contractor or both for any violations committed by an independent contractor. It also pointed to two early cases: Cyprus Indus. Minerals Co. v. FMSHRC (9th Circuit 1981), and BCOA v. Secretary of the Interior (4th Cir. 1977), which had the same finding under the 1969 Coal Act (prior to the establishment of MSHA).


In discussing its holding, the SMI court also noted the strict liability aspect of the Mine Act, which dictates that mine operators can face civil penalties if a violation merely occurs at its mine, regardless of fault. It also stressed that the early BCOA decision held that the owner of a mine may be held “jointly and severally liable for violations committed by” its independent contractor. The Coal Act's provisions, upon which the BCOA court relied, were largely unchanged in the 1977 Mine Act, other than the 1977 law added “independent contractors” expressly to the definition of “mine operator.” The Fourth Circuit also examined the legislative history of the Mine Act and found that the Senate Report stated that the “purpose of [one of the accepted amendments] was to give statutory expression to the doctrine of BCOA.” Other appeals court decisions also were cited, although those basically affirmed citations issued to the mine operator for contractor violations but stopped short of claiming that MSHA's discretion to do so was unreviewable.
The SMI decision stressed it was consistent with the purpose of the Mine Act: protection of the health and safety of miners. Precluding liability for contractor violations would encourage owners to use contractors as a means of insulating themselves from safety regulations, it said, and because owner/operators are in continuous control of mine conditions and are more likely to know federal safety and health requirements. Thus, mine safety would not be encouraged by letting the owner “exonerate itself … merely by establishing a private contractual relationship.” The court held that owner/operators possess ultimate authority over contractors in terms of retaining, supervising and dismissing them, if necessary. The court declined to adopt an interpretation of the Act that “would encourage owner-operators to remain willfully blind to the safety histories of their independent contractors,” which it claimed SMI did in this case.
The court dismissed SMI's alternative argument on abuse of discretion, saying the claim was “unreviewable.” The court did take note of MSHA's “Enforcement Guidelines” on multi-employer citation policy. However, even though SMI argued that these guidelines provided an objective framework to use when considering abuse of discretion, the court pointed out that the guidelines were non-binding and the Secretary was not required to observe them. The court also balked at using a “factual basis” standard of review under vicarious liability tort principles or under a principal/agent theory. It again noted that it concurred with the “joint and several” liability approach taken in the BCOA decision.


The court said that the decision on which operator to cite for a Mine Act violation rested on a “complicated balancing of a number of factors.” It found that the agency, not the courts, was best equipped to balance these factors and determine its enforcement priorities. In short, the Federal Mine Safety & Health Review Commission — despite being an independent appellate agency — must defer to the Secretary's expertise in its enforcement choices.
Bottom line: Mine operators can expect many more citations in the future arising from contractor actions or equipment defects, when present at their mines. Prequalifying and thoroughly training contractors, and documenting enforcement of safety provisions when it comes to contractor oversight, may help convince MSHA at the outset not to cite the mining company. But if a citation is issued, the operator will be limited to challenging the fact of violation, gravity, negligence and penalty issues … not the propriety of citing the mine operator in lieu of, or in addition to, its contractor."


Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com

Letter of Fairness to Small Mines and Info on Penalties, Fines, Points and Pattern of Violatons:

Important Letter Written to MSHA Inspectors on 3/30/09:

EFFECTIVE DATE: 03/30/2009
(Re-Issue of A07-III-01)


Deputy Assistant Secretary for Operations
Mine Safety and Health

SUBJECT: Operator Requests for Assistance and Enforcement Fairness Policy

This Administrative Policy Letter (APL) applies to Mine Safety and Health Administration (MSHA) employees who respond to requests for assistance from the public.
This APL establishes policy to ensure that no one doing business with MSHA shall fear retaliation for comments regarding actions by agency employees conducting compliance or enforcement activities.
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) was passed by Congress "to make Federal regulators more accountable for their enforcement actions by providing small entities with a meaningful opportunity for redress of excessive enforcement activities." As you know, I have a strong commitment to enforcement fairness, even apart from SBREFA requirements and want to ensure that all entities that receive an audit, inspection, or other enforcement action are provided a means to comment on such enforcement activity.
As government officials, we all have a duty to treat every member of the public professionally and with dignity and respect. We must develop and implement the most effective ways to produce the ultimate result - saving lives and preventing injuries and illnesses. We will use all of the tools available to us to achieve this result, including firm and fair enforcement, education and training, and technology.
MSHA has a long-established policy that entities should not fear retaliation for comments regarding actions by MSHA personnel conducting compliance or enforcement activities. This policy reflects the fact that the agency's objective is to help prevent and reduce workplace fatalities, illnesses and injuries. This policy does not extend to inquiries that indicate the existence of an imminent danger or a fatality or those which constitute a report by a miner or a miners' representative indicating the existence of a violation of the Act or standards. Finally, it is also our policy that operator inquiries will not prevent regular inspections, as mandated by the Mine Act.

Mine operators, miners and other inquirers are made aware of the variety of Agency resources that are available to help resolve safety, health and technical issues or concerns. These include: MSHA's webpage; education and training courses; technical support services; educational field services; and the services tailored for small mines.
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
Filing Instructions
This APL should be filed behind the tab marked "Administrative Policy Letters" at the back of Volume III of the APPM.
Issuing Office and Contact Persons
Educational Policy and Development, Kevin Burns, 202-693-9594
E-mail: burns.kevin@dol.gov

All MSHA Employees


New Civil Penalty Provisions Effective April 23, 2007

This is an overview of changes to 30 CFR Part 100, Criteria and Procedures for Proposed Assessment of Civil Penalties that became effective on April 23, 2007. The significant changes made to this rule are explained below.

The rule implements procedures regarding the civil penalty provisions of the Mine Improvement and New Emergency Response Act of 2006, also known as the MINER Act, signed by President George W. Bush on June 15, 2006. The MINER Act contains three provisions related to civil penalties:

  • Immediate Notification - establishes a penalty of at least $5,000 and up to $60,000 where an operator fails to notify MSHA within 15 minutes of an accident where a death, or injury or entrapment which has a reasonable potential to cause death, has occurred.
  • Unwarrantable Failure - Sets a minimum penalty of $2,000 for any citation or order issued as an unwarrantable failure under section 104(d)(1) of the Mine Act and a minimum penalty of $4,000 for any order issued under section 104(d)(2).
  • Flagrant Violations - Establishes a maximum civil penalty of $220,000 for "flagrant violations".
The penalty provisions in the MINER Act became effective on June 15, 2006, when the Act was signed. In addition, the rule provides for a general increase in civil penalties for violations. It is applicable to all mines and contractors. The scope and major provisions of the rule include:
  • Increased penalties: Increases civil penalties overall, targeting the more severe health and safety violations.
  • Repeat violations: Adds a new provision to increase penalties for operators who repeatedly violate the same MSHA standards.
  • Single penalty: No longer applies. Non-significant and substantial (non-S&S) violations formerly processed as $60 single penalty will now be processed as regular formula assessments.
  • Special assessments: Removes the list of specific categories for special assessment. The new rule retains MSHA's authority to specially assess penalties for violations, as appropriate.
  • Health and safety conferences: Provides 10 days for safety and health conference requests (no change from the previous rule) but now requires that requests be in writing and contain a brief statement why each citation or order should be conferenced.
The following is a section-by-section synopsis of the changes in 30 CFR Part 100.

100.3 Determination of penalty amount; regular assessment.
(a) General.
Includes language recognizing the new category of violations, flagrant violations, assessed under 100.5(e) may be assessed up to $220,000.

(b) The appropriateness of the penalty to the size of the business of the operator charged.
Maximum penalty points for size of mine and controller have been increased from a maximum of 15 points to a maximum of 25 points.

(c) History of previous violations.
This section has been expanded to include two components: total number of violations and the number of repeat violations of the same standard. The time period for determining history has been changed from 24 months to 15 months.

(c)(1) Total number of violations.
The maximum penalty points for this criterion have been increased from 20 points to 25 points. Operators who have received a minimum of 10 violations during the 15-month period will continue to be assigned penalty points based on the total number of Violations Per Inspection Day (VPID). For independent contractors, penalty points will continue to be assigned on the basis of the total number of violations at all mines at which the contractors have worked during the 15-month period.

(c)(2) Repeat violations of the same standard.
This is a new provision of the total violation history for an operator or independent contractor. This new aspect of the history criterion accounts for a maximum of 20 penalty points. An operator who has received at least six repeat violations of the same citable provision of a standard in the 15-month period preceding the occurrence of the violation will receive repeat violation penalty points penalty. These points will be assigned based on the number of repeat violations per inspection day (RPID).

For independent contractors, penalty points will be assigned on the basis of the number of violations of the same citable provision of a standard in a preceding 15-month period at all mines at which the contractor has worked.

VIOLATIONS PER INSPECTION DAY (VPID)- For operators, assessment history is based on the number of assessed Violations Per Inspection Day (VPID) during the 15 months preceding the date the violation occurred. If the operator's ownership of the mine is less than 15 months, the history period is adjusted to include only that portion of the 15 months that the operator is at the mine.

The 15-month period used to calculate history is 15 months prior to the date the violation occurred. The only exception is if the day of the month 15 months prior does not exist (i.e. the day is the 29th, 30th, or 31st). In that case, the last day of that month is used. For operators, VPID is calculated by adding the violation count, calculating the inspection day count (see below), and then dividing the violation total by the inspection day total. Only violations that have become Final Orders of the Federal Mine Safety and Health Review Commission are included in the operator's history of previous violations.

Inspection days are derived by totaling the MSHA on-site inspection hours entered by Authorized Representatives of the Secretary (AR) for certain inspection activities and task codes and dividing by five (see table below for types of activities that are included). A remainder amount greater than zero increases the count by one. All of the inspectors' time at the mine site is included when calculating inspection days. Travel time to and from the mines is not included.

CONTRACTOR VIOLATION HISTORY - For independent contractors, the Contractor Violations in History Period (CVHP) is derived using the same 15-month period as for operators but includes violations issued to the contractor at all mines at which the contractor has worked during the 15-month period. Both VPID and CVHP are converted to penalty points using the respective tables in 30 CFR 100.3. {insert link to penalty tables}

REPEAT VIOLATIONS PER INSPECTION DAY - For operators, Repeat Violations Per Inspection Day (RPID) is calculated by dividing the number of repeat violations of the same citable provision of a standard by the number of inspection days in the 15-month period described above. If a Section of the Mine Act is cited in lieu of a 30 CFR cite, then VPID violations citing that Section of the Mine Act are counted. If the number of violations used in the VPID calculation is less than 10 or there are fewer than 6 repeat violations of the same standard no RPID points are assigned.

The following list shows the types of MSHA inspection activities that are counted in the operators' inspection day counts. MSHA Supervisor and Inspector Trainee hours are not counted.

    E01 Regular Safety and Health Inspection E02 103(j) Spot Inspection E03 103(g) Written Notification Hazard Complaint Inspection E04 Verbal Hazard Complaint Inspection E06 Fatal Accident Investigation E07 Non-Fatal Accident Investigation E08 Non-Injury Accident Investigation E15 Compliance Follow-up Inspection E16 Spot Inspection E17 Special Emphasis Programs E18 Shaft, Slope or Major Construction Spot Inspection E19 Electrical Technical Investigation E20 Roof Control Technical Investigation E21 Ventilation Technical Investigation E22 Health Technical Investigation E23 Impoundment Spot Inspection E24 Other Technical Compliance Investigations E25 Part 50 Audit E27 Attempted Inspection (Denial of Entry) E28 Mine Idle Activity E33 Non-Chargeable Accident Investigation
(d) Negligence.
Penalty points for the three highest categories of negligence have been increased, reflecting MSHA's intent to target operators who exhibit an increasing lack of commitment to and disregard for miner safety and health. Moderate Negligence penalty points have been increased from 15 to 20 points; High Negligence penalty points have been increased from 20 to 35 points; and Reckless Disregard penalty points have been increased from 25 to 50 points.

(e) Gravity.
The possible penalty points for Gravity have been increased from a combined maximum of 30 to a maximum of 88 points. Increased points for gravity are directed at operators whose mines experience the more serious mine safety and health hazards.

Gravity - Likelihood.
Penalty points for all but one category of Likelihood of Occurrence have been increased:

  • No Likelihood remains at zero points;
  • Unlikely has been increased from 2 points to 10 points;
  • Reasonably Likely has been increased from 5 points to 30 points;
  • Highly Likely has been increased from 7 points to 40 points; and
  • Occurred has been increased from 10 points to 50 points.
Gravity - Severity.
Penalty points for all but one category of Severity of Injury or Illness if the Event Occurred or Were to Occur have been increased:

  • No Lost Work Days remains at zero points;
  • Lost Work Days or Restricted Duty has been increased from 3 points to 5 points;
  • Permanently Disabling has been increased from 7 points to 10 points; and
  • Fatal has been increased from 10 points to 20 points
Gravity - Persons Potentially Affected.
The gravity points for the number of persons potentially affected increase gradually as the number of persons actually affected increases. The maximum penalty points have been increased from 10 points to 18 points for this criterion.

(f) Demonstrated good faith of the operator in abating the violation.
This criterion allows for a reduction in the penalty amount if the operator has abated the violation within the time set by the inspector. The allowable penalty reduction has been decreased from 30% to 10%. The provision in the existing rule which adds 10 points where an operator does not abate the violation within the specified time period has been eliminated.

(g) Penalty Conversion Table
The penalty conversion table that is used to convert total penalty points to dollar amounts has been changed. The points distribution of the table has also been changed. The new range of penalty points is from 60 or fewer to 140 or more. The minimum regular assessment has been increased from $72 to $112. However, considering the good faith reduction allowed in paragraph (f) above, an operator may now receive regular assessments as low as $100 for total points of 60 or less. The penalty points associated with the maximum regular assessment of $60,000 have been increased from 100 to 140 or more penalty points.

(h) The effect of the penalty on the operator's ability to continue in business.
This provision has not been changed.

Old 100.4 Determination of penalty; single penalty assessment.
The $60 single penalty assessment has been eliminated.

New 100.4 Unwarrantable failure.
Section 100.4 implements Section 8(a)(1)(B) of the MINER Act related to minimum unwarrantable failure penalties. The minimum civil penalty for a 104(d)(1) citation or order is $2,000 and the minimum penalty for a 104(d)(2) order is $4,000.

100.5 Determination of penalty: Special assessment.

(a) This provision has been re-written to more clearly state MSHA's authority to issue special assessments when warranted. A list of examples of the types of violations that may be reviewed for special assessments has been eliminated.

(b) This provision has not been changed.

(c) This provision has not been changed.

(d) This provision has not been changed.

(e) This section implements the provision of the MINER Act mandating penalties for flagrant violations. Under the MINER Act, violations that are deemed to be flagrant may be assessed a civil penalty of not more than $220,000. The new rule, which adopted the definition in the MINER Act, defines a "flagrant" violation as "a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury."

(f) This section implements the provisions of the MINER Act mandating prompt incident notification. Under the MINER Act, an operator who fails to provide timely notification to the Secretary, in the event of a death, or an injury or entrapment with reasonable potential to cause death, under section 103(j) (relating to the 15-minute requirement) shall be assessed a civil penalty of not less than $5,000 and not more than $60,000.

100.6 Procedures for review of citations and orders; procedures for assessment of civil penalties and conferences. This provision has been changed to require that all requests for a safety and health conference be in writing and to include a brief statement as to why each citation/order should be conferenced. This provision will help parties requesting a conference to focus on the issues that will be discussed. A concise statement about the reasons each citation/order should be conferenced will give the District Manager necessary information before the conference and will help the parties have a more meaningful and effective conference. MSHA does not intend to use this provision to limit discussion at the safety and health conference to the specific points raised in the written statement, but merely to focus the parties on the issues at hand.

100.7 Notice of proposed penalty; notice of contest.
This provision includes editorial changes for clarity, but remains substantively unchanged from the existing provision.

(a) is amended to include the equivalent of certified mail as a means of service of the notice of proposed penalty. Although MSHA may continue to use certified mail, the Agency may also use alternative methods of certified delivery that are the equivalent of certified mail, e.g. certified delivery by a commercial package carrier.

(b) Language in previous Section 100.7(b) that addressed MSHA's internal operating procedures has been deleted to allow more efficient methods that use improved technologies. MSHA currently provides a form that lists violations being assessed, instructions for paying or contesting assessments, and MSHA contact information to facilitate an operator's request for a hearing with each proposed assessment. MSHA intends to continue this practice and will continue to immediately advise the Commission and the Office of the Solicitor of a contest.

100.8 Service.
This provision has not been changed.