Employment Law Guide
Safety and Health Standards: Mine Safety and Health
DOL Agency Assistance
Updated: December 2016
Mine Safety and Health Act of 1977 (Mine Act) (https://arlweb.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 of 1977 (Mine Act), as amended by the Mine Improvement and New Emergency Response Act of 2006 (MINER 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 services or construction at such mine.” A "miner" is any “individual working in a coal or other mine.” As of calendar year 2015, the Mine Act covered approximately 350,000 miners and over 13,000 mines.
The Mine Act requires MSHA to inspect each surface mine at least 2 times a year and each underground mine at least 4 times a year. (MSHA inspects seasonal or intermittent mining operations less frequently). Under the Mine Act, MSHA is prohibited from giving advance notice of an inspection, and it is authorized to enter any mine without a warrant.
The Mine Act requires additional inspections to ensure safe and healthy work environments for miners. For example, MSHA must provide additional inspections at a mine that releases large amounts of methane gas or other explosive gases or where there exists other especially hazardous conditions. . In addition, MSHA must investigate all fatal accidents and complaints of discrimination based upon the exercise of rights under the Mine Act.
To promote compliance with the requirements of the Mine Act or any MSHA mandatory safety and health standard, rule, order or regulation, MSHA must issue a citation to a mine operator for any violation found during an inspection or investigation. MSHA must notify the operator within a reasonable time of the civil penalty proposed to be assessed for the violation cited. All violations must be corrected within a reasonable time established by MSHA.
The Mine Act permits a representative of the operator and a representative of the miners to accompany MSHA during an inspection for the purpose of aiding the inspection and to participate in pre- or post-inspection conferences at the mine. The representative of the miners who is also an employee of the operators shall suffer no loss of pay during the time of his participation in the inspection. If a violation is cited, the circumstances surrounding the violation are discussed during the post-inspection conference. If these discussions do not result in resolution, the mine operator may contest the citation or proposed assessment of penalty before the Federal Mine Safety and Health Review Commission, an independent body, with further appeal to a U.S. Court of Appeals.
The Mine Act requires MSHA to promulgate new or improved mandatory safety or health standards to protect life and prevent injuries. Under the Mine Act, mine operators must notify MSHA when they open or close a mine. In addition, operators may request the modification of the application of a safety standard at a mine. MSHA may grant a modification if it determines that the operator’s proposed alternate method of compliance with the standard guarantees no less than the same measure of protection afforded the miners by the standard, or application of the standard at the mine will result in a diminution of safety to the miners.
The MINER Act
The Mine Improvement and New Emergency Response Act of 2006, also known as the MINER Act, was signed into law on June 15, 2006. This legislation, the most significant mine safety legislation in 30 years, amends the Mine Safety and Health Act of 1977 and contains a number of provisions to improve the safety and health in America's mines. The MINER Act's key provisions:
- Requires each underground coal mine operator to develop and continuously update a written emergency response plan;
- Promotes use of equipment and technology that is currently commercially available;
- Requires each mine's emergency response plan to be continuously reviewed, updated and re-certified by MSHA every six months;
- Directs 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;
- Requires each underground coal mine operator to make available to each mine two experienced mine rescue teams capable of a one hour response time;
- Requires mine operators to notify MSHA within 15 minutes of a death at the mine or an injury or entrapment at the mine which has a reasonable potential to cause death, and establishes a civil penalty of $5,000 to $60,000 for mine operators who fail to do so;
- Requires MSHA to finalize mandatory health and safety standards relating to the sealing of abandoned areas in underground mines;
- Requires NIOSH to establish an interagency working group to share technology and technological research and developments that could be used to enhance mine safety and accident response;
- Raises the maximum criminal penalty to $250,000 for first offenses and $500,000 for second offenses. In addition, establishes a maximum civil penalty of $220,000 for flagrant violations;
- Establishes a Technical Study Panel on the use of belt air and fire retardant belt materials in in underground coal mines;
- Gives MSHA the authority to obtain an injunction (shutting down a mine) in cases where the mine operator has refused to pay a final civil penalty assessment; and
- Establishes the Brookwood-Sago Mine Safety Grants program to provide training grants to better identify, avoid, and prevent unsafe working conditions in and around the mines.
- Requires NIOSH to conduct research on refuge alternatives and MSHA to report on proposed regulatory changes.
A good safety and health program depends on the active participation and interest of everyone at a worksite. Because Congress wanted to encourage an active, responsible role in matters of mine safety and health, the Mine Act gives miners many rights. Deaths, injuries, and illnesses in the workplace can be decreased if all miners exercise these rights. Under the Mine Act, miners, representatives of miners, and applicants for employment at a mine are all “miners.” All miners including supervisors, contractors, construction or demolition workers, and truck drivers working at a mine are considered to be "miners" and may exercise the rights given them under the Act.
The Mine Act gives a miner the right to:
- Designate a representative to accompany an MSHA inspector during an inspection without loss of pay (“walk-around” rights)
- Report hazardous conditions and make a complaint of an alleged danger or safety or health violation to MSHA, a State agency, a mine operator, an operator's agent or a miner's representative.
- 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 during normal working hours and to be paid for that time at the regular rate of pay.
- Withdraw from the mine for not having the required 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 proceedings under the Mine Act such as: testifying, assisting, or participating in any proceeding instituted under the Act, or filing a complaint with the Federal Mine Safety and Health Review Commission.
- A medical evaluation or to be considered for transfer to another job location because of harmful physical agents and toxic substances. For example: a coal miner has the right to a chest x-ray and physical examination for black lung disease (pneumoconiosis) and potential transfer to a less dusty position if the miner has a positive diagnosis.
- Refuse to work in unsafe or unhealthy conditions. NOTE: You must notify the operator of the condition and give them an opportunity to address the situation.
- Exercise any statutory rights afforded by the Mine Act.
Moreover, applicants for work at a mine have the right not to be discriminated against in hiring because they have previously exercised a right under the Mine Act.
Miners' representatives also have specific rights under the Act in addition to those rights given to individual miners. Miners’ representatives have the right to accompany inspectors on any type of Section 103(a) inspection involving direct enforcement activities such as: regular inspections; spot inspections; inspections conducted at the request of miners or their representatives; inspections of especially hazardous mines; and inspections made in conjunction with accident investigations. Miners’ representatives also have the right to be paid for time spent participating in health and safety inspections at their mine under certain circumstances. In addition, they have the right to review all citations and orders that are issued at their mine and to request a conference about them.
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 Coal Mine Safety and Health or Metal and Nonmetal Mine Safety and Health MSHA office.
Family liaison. Section 7 of 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
Unlike the Occupational Safety and Health Act of 1970, there is no workplace poster requirement which informs miners of their rights under the Mine Act. However, the Mine Act includes the following posting requirements for mine operators.
Section 101(e) of the Mine Act requires that MSHA send a copy of every proposed mandatory health or safety standard or regulation at the time of publication in the Federal Register to the operator of each mine and the representative of the miners at such mine and that the mine operator immediately post the standard or regulation on the mine bulletin board.
Section 109(a) of the Mine Act requires a mine operator to maintain at each mine an office with a conspicuous sign designating it as the office of such mine. In addition, a mine operator must maintain a bulletin board at the mine office or at a conspicuous place near an entrance of the mine and must post and protect from damage and unauthorized removal orders, citations, notices and decisions required by law or regulation to be posted.
In addition to the Mine Act posting requirements, several MSHA standards and regulations require mine operators to post notices or warnings. These requirements can be found here.
Recordkeeping and Reporting
Section 103(d) requires recordkeeping regarding all accidents, including unintentional roof falls (except in any abandoned panels or in areas which are inaccessible or unsafe for inspections). The accidents must be investigated by the mine operator or his agent to determine the cause and the means of preventing a recurrence. Records of such accidents and investigations must be kept and the information must be made available to MSHA and the appropriate State agency. The records must be open for inspection by interested persons, include man-hours worked, be reported at a frequency determined by MSHA, but at least annually.
In addition to the Mine Act recordkeeping requirement, MSHA’s regulations and mandatory safety and health standards published in Title 30 of the Code of Federal Regulations contain recordkeeping and reporting requirements. Recordkeeping forms can be found here.
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 that provide assistance in understanding and applying MSHA’s regulations.
MSHA's Web site 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: Provides access to MSHA forms and online filings.
- elaws MSHA Online Forms Advisor: Allows users to learn about and access the MSHA forms that can be filed online or accessed and completed online.
- Safety and Health Topics: 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: Provides training exercises that promote health and safety in mining.
- MSHA Fact Sheets: 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 MSHA’s Compliance Assistance page.
Training and education. The National Mine Safety and Health Academy, is in Beckley, West Virginia. The mission of the Academy is to reduce accidents and improve health conditions in the mining industry through education and training. To fulfill this mission, the Academy conducts a variety of education and training programs in health and safety and related subjects for Federal mine inspectors and other government mining and industry personnel. 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, approves and certifies certain mining products for use in underground coal and gassy underground metal and nonmetal 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 Educational Field and Small Mine Services (EFSMS) Division provides assistance in the development or improvement of the health and safety programs of mine operators and contractors in the mining community. The EFSMS specializes in developing programs tailored to reduce the number of injuries and illness' in the mining industry. Additionally, the EFSMS group evaluates industry instructors to ensure miners receive quality and effective training. EFSMS staff are located in 35 states and travel extensively to mines and training centers to provide assistance that will strengthen and modernize training.
The Brookwood-Sago grant program. The Brookwood-Sago Grants Program was established by the Mine Improvement and New Emergency Response Act of 2006 (MINER Act). It was named in remembrance of 13 men who died in two explosions at the Jim Walter Resources Inc.’s No. 5 Mine in Brookwood, Alabama, in 2001 and 12 men who died in an explosion at Wolf Run Mining Company’s Sago Mine in Tallmansville, West Virginia in 2006. The funds are used to develop and implement training and related materials for mine emergency preparedness as well as for the prevention of accidents in underground mines. MSHA publishes a “Solicitation for Grant Application” in the Federal Register notifying the public when grant funds are available and posts a notice on its website.
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).