- Employment Law Guide
Safety and Health Standards: Mine Safety and Health
Compliance Assistance By Law
DOL Agency Assistance
Updated: September 2009
Mine Safety and Health Act of 1977 (Mine Act) (http://www.msha.gov/regs/act/acttc.htm)
(30 USC §§ 801 et seq.(http://www.law.cornell.edu/uscode/html/uscode30/usc_sec_30_00000801----000-.html); 30 CFR Parts 1 to 199(http://www.msha.gov/30CFR/CFRINTRO.HTM))
Who is Covered
The Federal Mine Safety and Health Act (Mine Act) is administered by the Mine Safety and Health Administration (MSHA). The Act covers all mine operators and miners throughout the U.S., including the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands. Under the Mine Act, a mine "operator" is defined as: "any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing service or construction at such mine." A "miner" is any individual working in a coal or other mine. As of 2009, the Mine Act covered approximately 400,000 miners and almost 15,000 mines.
The Mine Act requires that MSHA inspect all mines each year. All underground mines are to receive at least four inspections annually; all surface operations are to be inspected at least twice annually. MSHA is specifically prohibited from giving advance notice of an inspection, and it is authorized to enter mine property without a warrant.
The Mine Act requires or authorizes additional inspections and investigations to ensure safe and healthy work environments for miners. For example, mines that release large amounts of methane gas are to receive more frequent inspections; mines determined to be exceptionally hazardous may receive more frequent inspections. Additionally, MSHA must investigate all fatal accidents and miners' complaints of discrimination based upon the exercise of their rights under the Mine Act.
To promote compliance with the provisions of the Act and its safety and health standards, all violations found during inspections and investigations must be cited. All violations are subject to civil penalties, and all violations must be corrected within the time frames established by MSHA.
The Mine Act permits representatives of the operator and the miners to accompany MSHA during inspections and participate in pre- and post-inspection conferences. If violations are cited, the circumstances surrounding the violations are discussed during post-inspection conferences. If these discussions do not result in resolution, the mine operator may appeal the citation and the penalty to the Federal Mine Safety and Health Review Commission, an independent body, with further appeal to the U.S. Courts of Appeals.
In addition to setting safety and health standards for preventing hazardous and unhealthy conditions, MSHA's regulations require immediate notification of accidents, injuries, and illnesses; training programs that meet the statutory requirements of the Mine Act; and approval for use of certain equipment in gassy underground mines.
Mine operators must notify MSHA when they open or close a mine. They may request the modification of an existing safety standard on a site-by-site basis. Under the Mine Act, MSHA may approve modifications only if it determines that the alternate method proposed will guarantee no less than the same measure of protection afforded by the existing standards, or that the application of MSHA's standard at the mine will result in a diminution of safety for miners.
Cooperative program. The Alliance Program(http://www.msha.gov/alliances/alliances.htm) enables trade associations or professional societies, labor organizations, educational institutions, and other similar stakeholders that share an interest in miner safety and health to collaborate with MSHA to prevent injuries and illnesses in the nation’s mines. MSHA and the organizations sign a voluntary agreement with goals that address training and education, outreach and communication and technical assistance, and promote national dialogue on mine safety and health.
New Requirements for Underground Coal Mines
On June 15, 2006, Congress amended the Mine Act with the Mine Improvement and New Emergency Response Act of 2006 (MINER Act)(http://www.msha.gov/MinerAct/2006mineract.pdf) to enhance safety in the nation's underground coal mines by requiring emergency response planning to provide for the evacuation of miners who may be endangered in an emergency or, if miners cannot evacuate, provide for their maintenance underground. The MINER Act's key provisions:
- Require each covered mine to develop and continuously update a written emergency response plan;
- Promote use of equipment and technology that is currently commercially available;
- Require each mine's emergency response plan to be continuously reviewed, updated and re-certified by MSHA every six months;
- Direct the Secretary of Labor to require wireless two-way communications and an electronic tracking system within three years, permitting those on the surface to locate persons trapped underground;
- Require each mine to make available two experienced rescue teams capable of a one hour response time;
- Require mine operators to make notification of all incidents/accidents which pose a reasonable risk of death within 15 minutes, and sets a civil penalty of $5,000 to $60,000 for mine operators who fail to do so;
- Require MSHA to establish new seal requirements for abandoned areas of a mine;
- Establish an interagency working group to provide a formal means of sharing non-classified technology that would have applicability to mine safety;
- Raise the criminal penalty cap to $250,000 for first offenses and $500,000 for second offenses, as well as establishing a maximum civil penalty of $220,000 for flagrant violations;
- Require MSHA to establish a Technical Study Panel on the use of belt air in underground coal mines and the fire retardant materials in belts;
- Give MSHA the power to request an injunction (shutting down a mine) in cases where the mine has refused to pay a final order MSHA penalty; and
- Establish the Brookwood-Sago Mine Safety Grants program to provide training grants.
Emergency response plans. Each covered mine must develop and continuously update a written emergency response plan. This plan must be reviewed, updated, and re-certified by MSHA every six months. The MINER Act required these plans to address six areas: post-accident communication, post-accident tracking, post-accident breathable air, lifelines for use in post-accident escape, training, and local emergency coordination.
- Post-accident communications and tracking. By June 15,
2009, the MINER Act requires each operator to have:
- Post-accident communication between underground and surface personnel via wireless or alternative to wireless; and
- Electronic tracking system to determine location of persons trapped underground.
On March 27, 2014, MSHA issued Program Policy Letter No. P14-V-01 Guidance for Compliance with Post-Accident Two-Way Communications and Electronic Tracking Requirements of the MINER Act.
- Post-accident breathable air. In a mine’s ERP, a mine
operator must provide two self-contained self-rescuers (SCSRs) for each miner or
section. The ERP also must contain provisions for:
- Additional SCSRs. The mine operator shall provide for storage of SCSRs at 30 minute intervals in escapeways. In addition, the mine operator must provide storage of at least one SCSR at no further than 30 minute travel distances for the evacuation of miners such as pumpers or examiners working in remote areas at locations accessible to these personnel in bleeders and other remote areas of the mine.
- Refuge alternatives. On December 31, 2008, MSHA issued a
on Refuge Alternatives for Underground Coal Mines which includes requirements
- Testing and approval of refuge alternatives and components of refuge alternatives
- Assuring that refuge alternatives are readily available, capable of sustaining trapped miners for 96 hours, and maintained in operating condition
- Training miners to locate, use, maintain, and transport refuge alternatives
The MINER Act required mine operators shall
provide flame-resistant directional lifelines in escapeways no later than June
- Training. MSHA has issued final rules under the MINER Act
with provisions for training in evacuation procedures for all persons.
- Mine emergency evacuation training and drills.
must participate quarterly in training and drills that require the miner to:
- Physically locate the stored SCSRs and refuge alternatives;
- Physically locate and practices using the continuous directional lifelines or equivalent devices and tethers;
- Don and transfer SCSRs;
- Practice a realistic escapeway drill;
- Review mine and escapeway maps;
- Locate escapeways, exits, routes of travel to the surface, abandoned areas, and refuge alternatives;
- Review the procedures for deploying refuge alternatives and components; and
- Review the procedures for use of the refuge alternatives and components.
- Annual expectations training.
Over the course of each year,
each miner shall participate in expectations training that includes:
- Donning and transferring SCSRs in smoke, simulated smoke, or an equivalent environment
- Breathing through a realistic SCSR training unit that provides the sensation of SCSR airflow resistance and heat
- Deployment and use of refuge alternatives similar to those in use
at the mine, including:
- Deployment and operation of component systems; and
- Instruction on when to use refuge alternatives during a mine
emergency, emphasizing that it is the last resort when escape is impossible.
- A miner shall participate in expectations training within one
quarter of being employed at the mine
- Mine emergency evacuation training and drills. Each miner must participate quarterly in training and drills that require the miner to:
- Local emergency coordination.
The mine operator shall include procedures in the emergency response
- Notifying key personnel, such as a call list for mine rescue teams, local emergency responders, mine personnel, state and Federal officials, and other parties that may be required;
- Familiarizing local emergency responders with surface functions that may be required in the course of mine rescue work, such as logistics, traffic control, and supplies on the surface; and
- Arranging, if possible, on-site visits by local emergency responders to familiarize them with the surface facilities at the mine and the functions that may be required of the responders.
Sealing of abandoned mine areas. The final regulation(http://www.msha.gov/REGS/FEDREG/FINAL/2008finl/08-1152.asp) addresses sealing abandoned areas in underground coal mines. It includes requirements for seal strength, design, construction, maintenance, and repair of seals and monitoring and control of atmospheres behind seals in order to reduce the risk of explosions in abandoned areas of underground mines. It also addresses the level of overpressure for new seals.
- The regulation for underground mine seals includes a requirement for
seals designed to 50 psi if the atmosphere behind the seal is inert and
requires seals designed to at least 120 psi if the atmosphere is not inert.
- Sealed areas shall be monitored, whether ingassing or outgassing, for methane and oxygen concentrations and the direction of leakage. Atmospheres with seals of 120 psi or greater shall be sampled until the design strength is reached. Atmospheres with seals less than 120 psi shall be monitored and maintained inert.
A good safety and health program depends on the active participation and interest of everyone at a worksite. Because Congress wants to encourage an active, responsible role for all parties in matters of mine safety and health, the Mine Act gives individual miners, their representatives, and job applicants many rights. Deaths, injuries, and illnesses in the workplace can be decreased if all parties take advantage of these rights.
The Act gives miners the rights to:
- Designate a representative to accompany Federal inspectors during inspections at a mine;
- Obtain an inspection of the mine where reasonable grounds exist to believe that an imminent danger, or a violation of the Act or of a safety or health standard exists;
- Receive health and safety training;
- Be paid during certain periods of time when a mine or part of a mine has been closed because of a withdrawal order;
- Be protected against discrimination based on the exercise of rights under the Act; and
- Be informed of, and participate in, enforcement and legal proceedings under the Act.
Moreover, applicants for mine work have the right not to be discriminated against in hiring because they have previously exercised rights provided under the Act.
Miners' representatives also have specific rights under the Act in addition to those rights given to individual miners. Miners’ representatives are entitled to a copy of the following plans and plan revisions prior to a mine operator’s submittal of such plan for MSHA approval:
- Part 46 Training Plan
- Part 48 Training Plan
- Roof Control Plan
- Mine Ventilation Plan
- Mine Emergency Evacuation and Firefighting Program of Instruction
- Emergency Response Plan
A mine operator must provide with the plan submittal to the District Manager any comments and concerns raised by miners and miners’ representatives.
If a miner, representative of miners, or job applicant, has general or specific questions about rights under the Act, he or she should contact the nearest MSHA office. The MSHA Web site(http://www.msha.gov/) lists locations and telephone numbers for its offices nationwide.
Family liaison. The MINER Act requires MSHA to assign an individual to serve as a Family Liaison between MSHA and the families of victims of mine tragedies involving multiple deaths. MSHA is to be “as responsive as possible to requests from the families of mine accident victims for information relating to mine accidents.” In addition, in such accidents, MSHA must “serve as the primary communicator with the operator, miners’ families, the press, and the public.”
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
There is no workplace poster requirement under the Mine Act.
Mine operators have the following notice requirements:
Notification of representatives of miners(http://www.msha.gov/forms/elawsforms/MineRep.htm). A mine operator is required to post information regarding the representative of the miners, including the name, address, and telephone number of the representative. If the representative is an organization, the name, address, and telephone number of the organization and the title and phone number of the person serving as the representative must also be posted.
Petitions of modifications of safety standards. The mine operator must post on the mine bulletin board a copy of any petition(http://www.msha.gov/30cfr/44.0.htm) for modification of application of a mandatory safety standard, and maintain the posting as long as the modification is effective.
Noise control procedures. When a mine operator uses administrative controls to reduce miners’ exposure to noise, the mine operator must post the procedures for such controls on the mine bulletin board and provide a copy to the affected miners.
Warning signs. Where danger of fire or explosion exists, mine operators are required to post signs warning against smoking or carrying smoking materials, matches or lighters. These areas include:
- Any underground space or area
- In or around explosives magazines
- Near storage and dispensing areas for flammable or combustible materials
- Near storage and dispensing areas for grease
- Near storage and dispensing areas for flammable gases
- Near areas where flammable gases or combustible liquids are transported
- In vehicles transporting flammable liquids
Warning signs must be posted so that they are readily visible in such areas, and must be adequate to inform a reasonable person that smoking or carrying smoking materials, matches or lighters is hazardous and prohibited.
Mine rescue plan. Each underground mine operator shall have a mine rescue notification plan outlining the procedures to follow in notifying the mine rescue teams when there is an emergency that requires their services. A copy of the mine rescue notification plan shall be posted at the mine for the miners’ information and shall be given to the miners’ representative.
Mine operators are required to:
Record individual exposure to radon daughters. Each mine operator is required to calculate and record complete individual time-weighted and accumulative exposures to concentrations of radon daughters (fine solid particles which result from the radioactive decay of radon gas), and other specific information related to this exposure. The records are to be kept on MSHA Form 4000-9(http://www.msha.gov/forms/elawsforms/40009.htm), or an equivalent form acceptable to MSHA.
Where uranium is mined, the complete individual exposures of all mine personnel working underground must be calculated and recorded. Where uranium is not mined, the complete individual exposure of all mine personnel working in active working areas with radon daughter concentrations in excess of 0.3 WL must be calculated and recorded.
Records must be maintained by the mine operator and made available for examination by authorized representatives of the Department of Labor and by representatives of the official mine inspection agency of the state in which the mine is located.
Establish mine rescue teams(http://www.msha.gov/REGS/FEDREG/FINAL/2008finl/08-551.asp). Except where alternative compliance is permitted for small and remote mines or those mines operating under special mining conditions, every operator of an underground mine shall establish at least two mine rescue teams(http://www.msha.gov/30CFR/49.0.htm) to be available at all times when miners are underground. Alternatively, the operator may enter into an arrangement for mine rescue services that assures that at least two teams are available at all times miners are underground.
Each mine rescue team member must be examined by a physician(http://www.msha.gov/30CFR/49.7.htm) within 60 days prior to scheduled initial training, and annually thereafter. An MSHA Form 5000-3, Certificate of Physical Qualification for Mine Rescue Work(http://www.msha.gov/forms/elawsforms/5000-3.htm) must be completed and signed by the examining physician for each team member. These forms must be kept on file at the mine rescue station for a period of one year.
For each underground coal mine, an operator must certify initially, and then annually, that each mine rescue team is qualified. The mine operator may use MSHA Form for “Operator’s Annual Certification of Mine Rescue Team Qualifications.”(http://www.msha.gov/30CFR/MineRescueTeamsform2008.pdf) If the MSHA optional form is not used, a mine operator shall send an annual statement to the District Manager certifying for each mine rescue team that each member:
- Is properly trained
- Is familiar with the operations of each covered mine
- Has participated in two local mine rescue contests
- Has participated in mine rescue training at each covered mine
- Is knowledgeable about the operations and ventilation of each covered mine
Certify completion of training. Upon a miner's completion of each MSHA approved training program(http://www.msha.gov/30CFR/48.29.htm), the mine operator is required to record and certify on MSHA Form 5000-23(http://www.msha.gov/forms/elawsforms/5000-23.htm) that the miner has received the specified training. A copy of the training certificate must be given to the miner at the completion of the training. The training certificates for each miner must be available at the mine site for inspection by MSHA and for examination by the miners, the miners' representative, and state inspection agencies for a period of two years, or for 60 days after termination of employment. When a miner leaves the operator's employment, the miner is entitled to a copy of his training certificates.
Maintain accident and investigation reports. Mine operators must maintain reports of accidents, illness or injury(http://www.msha.gov/30cfr/50.40.htm) filed with MSHA and any resulting MSHA reports at the mine office closest to the mine. These records must be kept for five years after the accident or injury occurred or the illness was diagnosed. Form 7000-1, Mine Accident, Injury and Illness Report(http://www.msha.gov/forms/70001INB.HTM) can be filed online electronically or the form fill version can be completed, printed (or printed and filled in manually) and sent to MSHA.
Establish and maintain training plans(/elaws/msha_train.htm). Each U.S. mine operator must have an approved plan for training that may include:
- New miners with no underground experience
- New miners having no surface mining experience
- Annual training for all miners
- A new task for which a miner has no previous work experience
- Shaft and slope construction miners
Except for the annual refresher training, mine operators shall include a period of training as closely related as is practicable to the work in which the miner is to be engaged. For more information see mandatory health and safety training(http://www.msha.gov/REGS/ACT/ACT2.HTM#5). MSHA also provides a Training Compliance Checklist for Part 46 (PDF)(http://www.msha.gov/training/part46/pt46checklist.pdf).
Note: These plans may not be the only training plans that a mine operator is required to submit or prepare. For example, underground coal mine operators must submit a mine emergency evacuation and firefighting program of instruction(http://www.msha.gov/30CFR/75.1502.htm).
There are reporting requirements for Mine Operators, Independent Contractors, and approved Training Instructors.
Mine operators are required to:
Apply for a mine identification number(http://www.msha.gov/forms/elawsforms/MineIDRequest.htm). All mines are required to apply for an MSHA mine identification number. An MSHA ID is required for each mine site and must be issued before any operations may begin. The MSHA Identification (ID) Request(http://www.msha.gov/forms/elawsforms/MineIDRequest.htm) (MSHA Form 7000-51) can be filed on-line or by contacting the local MSHA district office.(http://www.msha.gov/CONTACTS/COALNOS.HTM#FO)
File a legal identification number(http://www.msha.gov/regs/complian/PIB/2008/pib08-04.asp). Within 30 days of applying for a Mine ID or when there are any changes to the legal ownership structure for a mine, a mine operator must file a Legal Identification Report with MSHA. The MSHA Form 2000-7(http://www.msha.gov/forms/elawsforms/2000-7.htm) can be filed online or by contacting the local MSHA district office. A mine operator must provide a Taxpayer Identification Number(http://www.msha.gov/regs/complian/pib/2008/pib08-04.asp).
File a mine employment and coal production report(http://www.msha.gov/30CFR/50.30.htm). The Quarterly Mine Employment and Coal Production Report (MSHA Form 7000-2(http://www.msha.gov/forms/elawsforms/7000-2.htm)) must be filed within 15 days after the close of each calendar quarter. Written forms filed after the 15 day period will be considered late; however, online filing for this form is open for a period of 25 days from January 1, April 1, July 1, and October 1 of each year.
Report hazardous conditions. All impoundment and dust fraud inquiries/complaints can be made to the MSHA Codeaphone line(http://www.msha.gov/codeaphone/ReportableInjury.asp) (1-800-746-1553). Callers should include as much of the following information as possible:
- Name of company
- Name of mine
- Location of mine (city/town)
- State where mine is located
- The MSHA ID for the mine if known. A search can be done for an MSHA ID by either mine name or company name using MSHA's Data Retrieval System(http://www.msha.gov/drs/drshome.htm) (DRS).
The complaint form(http://www.msha.gov/codeaphone/codeaphonenew.htm) is intended for reporting hazardous conditions at mine sites only, and is not to be used for any other purpose.
Report accidents, injuries, and illnesses. Incidents of accident, injury, or illness are to be reported to MSHA using Form 7000-1(/elaws/msha/forms/7000-1.htm), whether the workers involved are employees of the mine operator or employees of a contractor. For incidents or accidents which pose a reasonable risk of death, mine operators must report them within 15 minutes. Otherwise, the form must be completed and mailed or submitted online within 10 working days after an accident or occupational injury occurs, or an occupational illness is diagnosed. The principal officer in charge of health and safety at the mine or the supervisor of the mine area where the incident occurred is responsible for completing the Form 7000-1. A separate Form 7000-1 is required on each accident, whether a person was injured or not. A form is required for each individual who became injured or ill, even when several individuals were injured or made ill in a single occurrence.
Mine operators must call immediately, but not later than 15 minutes from the time they know or should know that an accident has occurred. To report these immediately reportable accidents, and injuries(http://www.msha.gov/codeaphone/ReportableInjury.asp) call 1-800-746-1553. "Immediately Reportable Accidents and Injuries" include:
- A death of an individual at a mine
- An injury to an individual at a mine which has a reasonable potential to cause death
- An entrapment of an individual for more than thirty minutes or which has a reasonable potential to cause death
- An unplanned inundation of a mine by a liquid or gas
- An unplanned ignition or explosion of gas or dust
- In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery
- An unplanned ignition or explosion of a blasting agent or an explosive
- An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage
- A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour
- An unstable condition at an impoundment, refuse pile, or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area; or, failure of an impoundment, refuse pile, or culm bank
- Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than thirty minutes
- An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs
Note: Injuries not related to one of the twelve types of accidents(http://www.msha.gov/30CFR/50.2.htm), such as ordinary sprains, strains, minor cuts, minor burns, bruises or other injuries that are not life-threatening, do not require immediate notification. These types of injuries should be reported via the 7000-1(http://www.msha.gov/forms/elawsforms/7000-1.htm) form.
Failure to report an accident, injury or illness can result in a citation and assessment of a civil penalty against a mine operator(http://www.dol.gov/compliance/guide/msha.htm#who).
Report Self-Contained Self-Rescuers (SCSRs). A mine operator is required to file a report of inventory of all SCSRs used or stored at a mine. A mine operator may use MSHA Form 2000-222(http://www.msha.gov/forms/ElawsForms/2000-222.htm). A mine operator also shall report to MSHA any defect, performance problem, or malfunction with the use of an SCSR. The report shall include a detailed description of the problem and, for each SCSR involved. An operator must retain the problem SCSR for 60 days.
Report individual exposure to Radon Daughters. Each mine operator must report individual exposure to radon daughters(http://www.msha.gov/30CFR/57.5040.htm) on or before February 15 of each calendar year, or within 45 days after the shutdown of mining operations for the calendar year. Each mine operator is required to submit to MSHA a copy of Form 4000-9(http://www.msha.gov/forms/elawsforms/40009.htm) (or acceptable equivalent form), for all personnel for whom calculation and recording of exposure was required during the previous calendar year.
Independent contractors are required to:
Report MSHA contractor identification. Independent contractors are required to apply for an MSHA contractor identification number using the Contractor Identification (ID) Report(/elaws/msha/forms/7000-52.htm) (MSHA Form 7000-52). An MSHA ID is required for each contractor operating a mine site and must be issued before they begin specific activities.
Report accidents, injuries, and illnesses. If an accident, injury or illness occurs at or in conjunction with activity at a mine, independent contractors are required to report the circumstances of the incident to MSHA using Form 7000-1, The Mine Accident, Injury and Illness Report(/elaws/msha/forms/7000-1.htm).
Report immediately reportable accidents and injuries. An independent contractor must call immediately, but not later than 15 minutes from the time they know or should have known that an accident has occurred. To report these immediately reportable accidents and injuries call 1-800-746-1553.
Report employment and production information. Independent contractors are also required to report employment and production information to MSHA using Quarterly Mine Employment and Coal Production Report (MSHA Form 7000-2)(/elaws/msha/forms/7000-2.htm) for each quarter of operation and at each mine at which activity is performed.
Approved MSHA Instructors are required to:
Report electrical training. Approved MSHA instructors are required to submit the names of persons who have satisfactorily completed the Certificate of Electrical/Noise Training (MSHA Form 5000-1).(/elaws/msha/forms/5000-1.htm)
Report mine foreman training. Approved MSHA instructors are required to submit the names of persons who have satisfactorily completed mine foreman and pre-shift examiner or hoisting certification training using Health Activity Certification or Hoisting Engineers Qualification Request (MSHA Form 5000-41)(/elaws/msha/forms/5000-41.htm).
The Mine Act established a maximum penalty of $10,000 per violation against mine operators for violations found and cited. As a result of the Omnibus Budget Reconciliation Act of 1990, the maximum was increased to $55,000. The MINER Act amended section 110 of the Mine Act raising the maximum civil penalty to $220,000 for violations that are deemed to be flagrant. In addition, the MINER Act established minimum penalties of $2,000 and $4,000 for unwarrantable failure violations, and increased penalties for operators who fail to timely notify MSHA of certain accidents.
On March 22, 2007, MSHA published a final rule amending 30 CFR Part 100 (http://www.msha.gov/30CFR/100.0.htm) to implement the MINER Act provisions and to increase the penalties across the board from the existing regulations. Under the amended 30 CFR Part 100, all violations (including non-serious violations) are assessed using a formula that incorporates six criteria set forth in sections 105(b) and 110(i) of the Mine Act. These criteria are:
- The appropriateness of the penalty to the size of the business of the operator charged;
- The operator's history of previous violations;
- Whether the operator was negligent;
- The gravity of the violation;
- The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation; and
- The effect of the penalty on the operator's ability to continue in business.
The higher penalties in the final rule are intended to increase the incentives for mine operators to prevent and correct violations. Penalties, however, increase more significantly for large mine operators, operators with a history of repeated violations of the same standard, and for operators whose violations involve high degrees of negligence or gravity. The maximum penalty for a regular assessment is now $70,000.
Some violations are of such a nature or seriousness that use of the formula would not result in an appropriate penalty. In these cases — most often involving fatalities, serious injuries, and unwarranted failure to comply with standards — MSHA may waive the formula and propose a "special assessment." In developing such an amount, the facts are independently reviewed to determine a penalty amount that will have the deterrent effect contemplated by the Mine Act. Title 30, Section 100.5 of the Code of Federal Regulations(http://www.msha.gov/30CFR/100.0.HTM) contains the regulations governing this civil penalty process.
The Mine Act also provides for either civil penalties against individuals for "knowing" violations, or criminal sanctions against mine operators who "willfully" violate safety and health standards. MSHA reviews particular citations and orders for possible knowing or willful violations. In general, the violations reviewed include those involving imminently dangerous situations and a high degree of negligence or reckless disregard. MSHA initiates and conducts investigations of possible knowing or willful violations. If evidence of willful violations is found, the case is referred to the Department of Justice.
Relation to State, Local, and Other Federal Laws
The Mine Act does not give MSHA the authority to cede its responsibilities to states or any other political subdivisions. The Mine Act does not preempt state mine safety and health laws, except insofar as they may conflict with the Mine Act or MSHA's regulations. States may have more stringent health and safety standards.
Compliance Assistance Available
MSHA develops safety and health training programs in cooperation with industry and labor; tests new mining equipment; works with other agencies to advance safety and health research programs; and compiles and analyzes accident, injury, and illness data to better address serious workplace hazards.
MSHA has developed booklets, pamphlets, and pocket-size laminated cards, that address known safety and health hazards and identify acceptable compliance processes. MSHA routinely distributes its accident prevention materials to the mining industry at large, or to those sectors of the industry that are experiencing the injuries addressed by the materials. MSHA also has a number of elaws Advisors(http://www.dol.gov/elaws) that provide assistance in understanding and applying MSHA’s regulations.
MSHA's Web site(http://www.msha.gov) contains compliance assistance information, guidance, and helpful tips for the mining community. For example, it lists upcoming seminars designed for mine operators and others to receive the latest information about the requirements of a rule or to hear about solutions to various safety and health problems. Also, the Web site provides model forms, records, and plans for the mine operator to use to comply with MSHA requirements, thus avoiding the need for the operator to create these items independently. Through the Web site, mine operators may file various reports directly with MSHA.
Among the many resources available are:
- MSHA Online Forms(http://www.msha.gov/forms/forms.asp): Provides access to MSHA forms and online filings.
- elaws MSHA Online Forms Advisor(/elaws/msha/forms/forms.htm): Allows users to learn about and access the MSHA forms that can be filed online or accessed and completed online.
- Safety and Health Topics(http://www.msha.gov/S&Htopics.htm): Provides links to specific compliance information on various safety and health issues found in the mining industry, including those related to equipment, chemicals, and working conditions (e.g., mine safety control systems, mercury and heavy metals, and noise).
- Interactive Training Products(http://www.msha.gov/interactivetraining.htm): Provides training exercises that promote health and safety in mining.
- MSHA Fact Sheets(http://www.msha.gov/MSHAINFO/MSHAINF4.HTM): Covers topics such as training programs and mine injury fact sheets.
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-fmsha.htm) Web page. MSHA maintains a 24-hour toll-free telephone number that can be used to report accidents and hazardous conditions. That number is 1-800-746-1553. For reporting hazardous conditions, the caller need not identify himself or herself.
Training and education. MSHA's Mine Health and Safety Academy, located in Beckley, West Virginia, develops and provides safety and health training courses for its own inspectors as well as for industry and labor. A "Mine Simulation Laboratory," located on the Academy grounds, provides hands-on training in rescue and recovery operations for certain mine emergencies.
MSHA's Approval and Certification Center (A&CC), located near Wheeling, West Virginia, houses laboratories, equipment and personnel to test equipment that must be approved before it can be used in certain areas of gassy underground mines. The A&CC also is responsible for monitoring the performance of approved products to ensure that they meet the standards under which they were originally approved.
Consultation services. MSHA’s Small Mine Office (SMO)(http://www.msha.gov/smallmineoffice/smallmineoffice.htm) works closely, on-site, with mine operators having five or fewer employees to develop and implement health and safety programs tailored to identify and eliminate hazards at their operations. The wide variety of health and safety services offered include a worksite analysis of safety and health conditions, assistance in developing a written health and safety program, and safety and health toolbox talks for training employees.
The Brookwood-Sago grant program. The MINER Act established a competitive grant to provide funding for education and training programs to help identify, avoid and prevent unsafe working conditions in and around mines. These grants are awarded to public and private non-profits on annual basis to provide education and training programs or to develop training materials for employers and miners on MSHA-emphasized topics.
Mine Safety and Health Administration (MSHA)(http://www.msha.gov)
Tel: 1-866-4USADOL (1-866-487-2365) or 1-202-693-9400; TTY: 1-877-889-5627
The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources of applicable law. Every effort has been made to ensure that the information provided is complete and accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at www.dol.gov/compliance or by calling our Toll-Free Help Line at 1-866-4-USA-DOL (1-866-487-2365) (1-866-487-2365).