MSHA Rules to Live By Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams, PC 301-595-3520.

MSHA Rules to Live ByMSHA Rules to Live By

Adele L. Abrams, Esq., CMSPAdele L. Abrams, Esq., CMSPLaw Office of Adele L. Abrams, PCLaw Office of Adele L. Abrams, PC

www.safety-law.comwww.safety-law.com301-595-3520301-595-3520

““Rules to Live By” Rules to Live By” Enforcement InitiativeEnforcement Initiative

MSHA launched fatality-prevention campaign on March MSHA launched fatality-prevention campaign on March 15, 201015, 2010

Inspectors being “trained” for enforcement focusInspectors being “trained” for enforcement focus Materials available on internet (www.msha.gov)Materials available on internet (www.msha.gov)

Covers 13 M/NM and 11 Coal standards which MSHA Covers 13 M/NM and 11 Coal standards which MSHA maintains cause fatalitiesmaintains cause fatalitiesAgency will encourage increased scrutiny for violations Agency will encourage increased scrutiny for violations of these standardsof these standardsMSHA instructing inspectors to “review” carefully the MSHA instructing inspectors to “review” carefully the gravity/negligence findings (expect presumptive S&S gravity/negligence findings (expect presumptive S&S findings and high negligence because of “advance findings and high negligence because of “advance warning” of this campaign)warning” of this campaign)All violations will be considered for special assessments All violations will be considered for special assessments (higher penalties, outside Part 100 formula)(higher penalties, outside Part 100 formula)

Rules to Live By: Rules to Live By: Standard SelectionStandard Selection

MSHA’s analysis targets standards frequently cited in fatal accident investigations in 9 accident categories– Falls from Elevation– Falls of Roof and Rib– Operating Mobile Equipment (Surface)– Operating Mobile Equipment (Underground)– Maintenance– Lock and Tag Out– Struck by Mobile Equipment (Surface)– Struck by Mobile Equipment (Underground)– Blocking Against Motion

Rules to Live By: M/NM StandardsRules to Live By: M/NM Standards

56.9101 - Operating speeds and control of equipment Type of condition(s) leading to fatalities:

• Equipment operator not maintaining control of equipment while in motion. • Operating speeds not consistent with the conditions.

56.12017 - Work on power circuits Type of condition(s) leading to fatalities:

• Power circuits not de-energized before working on circuits. • Switches not locked out or other measures taken to prevent power circuits from

being energized without knowledge of individuals working on them.56.14101(a) - Brake performance

Type of condition(s) leading to fatalities:• Service brakes not capable of stopping and holding equipment

with its typical load on maximum grade it travels. • Parking brakes not capable of holding equipment with its typical load on maximum grade it travels.

• A brake system component not maintained in a functional condition.


56.14105 - Procedures during repairs or maintenance Type of condition(s) leading to fatalities:

• Machinery or equipment not blocked against motion during repairs or maintenance.

• Equipment not effectively de-energized.• Persons not protected against hazardous motion during testing or adjustments.

56.14130(g) - Seat belts shall be worn by equipment operators Type of condition(s) leading to fatalities:

• Failure to wear seatbelts while operating mobile equipment.56.14131(a) - Seat belts shall be provided and worn in haul trucks

Type of condition(s) leading to fatalities:• Seatbelts not worn when operating or riding in haul truck.

NOTE: MSHA PPM says seat belt violations presumptively S&S, and failure to provide seatbelts will be 104(d) in absence of mitigating circumstances! Types of violations meeting special assessment criteria are:

1. Violations that are 104(d)s2. Violations contributing to serious injury/fatality3. Violations cited as “imminent danger” (107A)4. Violations having extraordinarily high gravity


56.14205 - Machinery, equipment, and tools used beyond design Type of condition(s) leading to fatalities:

• Using machinery, equipment, or tools beyond design capacity intended by manufacturer.

56.14207 - Parking procedures for unattended equipment Type of condition(s) leading to fatalities:

• Mobile equipment left unattended and controls not placed in park position.• Provided parking brake not set.• Mobile equipment parked on grade and wheels/ tracks are not chocked or turned

into a bank.56.15005 - Safety belts and lines

Type of condition(s) leading to fatalities:• Persons not wearing fall protection when exposed to fall hazard.

56.16002(c) - Bins, hoppers, silos, tanks, and surge piles Type of condition(s) leading to fatalities:

• Persons entering bins, tanks, hoppers or surge piles not wearing fall protection where there is fall hazard.

• A second person not provided to tend lifeline.• Persons entering bins and hoppers when flow of materials has not ceased

and/or supply and discharge equipment not locked out.• Safe access in and around working areas not provided.


56.16009 - Persons shall stay clear of suspended loads Type of condition(s) leading to fatalities:

• Persons failing to stay clear of suspended loads.56.20011 - Barricades and warning signs

Type of condition(s) leading to fatalities:• Barricades or warning signs not posted at all approaches

where health or safety hazards exist that are not immediately obvious.

NOTE: PPM indicates this refers to hazards such as “heat, acids, gases, dusts, noise and radiation.” ALL areas of mine should be checked for “imperceptible health hazards.”

57.3360 - Ground support use Type of condition(s) leading to fatalities:

• Necessary ground support not designed, installed, and maintained in areas where persons work or travel.

Rules to Live By: Rules to Live By: Engineering “Recommendations”Engineering “Recommendations”

MSHA has published 11 pp. of MSHA has published 11 pp. of “recommendations” on website concerning these “recommendations” on website concerning these standards standards will failure to adopt constitute knowing/willful will failure to adopt constitute knowing/willful

“violation”?“violation”?

Recommendations go beyond plain language of Recommendations go beyond plain language of codified standards codified standards does this constitute illegal rulemaking by MSHA?does this constitute illegal rulemaking by MSHA?

Is knowledge of these new “recommendations” Is knowledge of these new “recommendations” imputed to all mine operators by virtue of being imputed to all mine operators by virtue of being on www.msha.gov?on www.msha.gov?

Examples of “Recommendations”Examples of “Recommendations”

Use rear cameras to prevent over-travel of equipment at Use rear cameras to prevent over-travel of equipment at dump pointsdump pointsUse of Collision Avoidance and Proximity Detection Use of Collision Avoidance and Proximity Detection SystemsSystemsInstallation of prominent emergency shutdown/motion Installation of prominent emergency shutdown/motion arrest switches on mobile equipmentarrest switches on mobile equipmentInstallation of high-back seats with headrest supportInstallation of high-back seats with headrest supportKeeping operator manuals in cabs of all mobile Keeping operator manuals in cabs of all mobile equipment (with weather protection) and require them to equipment (with weather protection) and require them to be read by operator before equipment usebe read by operator before equipment useUse solar powered signs for improved night warningsUse solar powered signs for improved night warningsEstablish road grade limits with precautions for grades > Establish road grade limits with precautions for grades > 10 percent, and eliminate grades > 15 percent10 percent, and eliminate grades > 15 percent


Use remote controlled LHD design considerationsUse remote controlled LHD design considerationsInstall boom-side barriers to prevent operators from Install boom-side barriers to prevent operators from exiting on boom side and in pinchpoint areasexiting on boom side and in pinchpoint areasLockout the high speed on lift trucks and other normally Lockout the high speed on lift trucks and other normally slow-speed equipmentslow-speed equipmentHave drill station man in position switch and panic bar Have drill station man in position switch and panic bar installations at drill head areainstallations at drill head areaFor UG roof control, use beam straps (supported top), For UG roof control, use beam straps (supported top), jack release rope (unsupported top), install additional jack release rope (unsupported top), install additional supports in last row as precautionary breaker point, and supports in last row as precautionary breaker point, and hang second row streamershang second row streamers


Tie-off when operating manlifts, working around access Tie-off when operating manlifts, working around access areas of floors/walls, scaffolds, bins, hoppers, bulk areas of floors/walls, scaffolds, bins, hoppers, bulk tankerstankersInstall “properly sized” working platforms for Install “properly sized” working platforms for maintenance of jaw crushersmaintenance of jaw crushersInstall designed platform for tarping trucksInstall designed platform for tarping trucksUse 100 percent tie-off fall protection systems, and Use 100 percent tie-off fall protection systems, and portable tie-off systems on skid mountsportable tie-off systems on skid mountsUse remotely operated tanker truck manhole coversUse remotely operated tanker truck manhole coversWhen working around water, use life jackets or other When working around water, use life jackets or other PFD at all times, and equipment miners with water-PFD at all times, and equipment miners with water-activated alarm that transmits distress signal to a activated alarm that transmits distress signal to a dispatcher/operations station.dispatcher/operations station.


Ensure arc flash protectionEnsure arc flash protectionEnsure adequate water for fire fightingEnsure adequate water for fire fightingUse powered lifting aids for rail track installationUse powered lifting aids for rail track installationPosition equipment as far away from highwalls as Position equipment as far away from highwalls as possible during operation and maintenancepossible during operation and maintenanceTagout equipment and take the keys during maintenance Tagout equipment and take the keys during maintenance (mechanical)(mechanical)Use GFCIs to prevent electric shock and identify faultsUse GFCIs to prevent electric shock and identify faultsUse auxiliary power source interlocks to prevent shock Use auxiliary power source interlocks to prevent shock hazards on draglines and other equipmenthazards on draglines and other equipment


Use glow in the dark paint to make people Use glow in the dark paint to make people and equipment visible at nightand equipment visible at night

Adopt visitor communication and safety Adopt visitor communication and safety proceduresprocedures

Maintain continual two-way Maintain continual two-way communications at all timescommunications at all times

Use telescopic poles and flags for vehicle Use telescopic poles and flags for vehicle visibilityvisibility

More to Come?More to Come?

In wake of Massey disaster that killed 29 miners, In wake of Massey disaster that killed 29 miners, Congress will hold MSHA oversight hearingsCongress will hold MSHA oversight hearings

Some members of Congress calling for new Some members of Congress calling for new legislation to strength Mine Actlegislation to strength Mine Act

Likely some version of S-MINER will be Likely some version of S-MINER will be reintroduced, including elements from DOL “wish reintroduced, including elements from DOL “wish list”list”

Enforcement provisions likely to cover all mines Enforcement provisions likely to cover all mines (not just coal)(not just coal)

S-MINER 2007 ElementsS-MINER 2007 Elements

Would require posting bond for many civil penalty cases in order to Would require posting bond for many civil penalty cases in order to have right to contest citations/ordershave right to contest citations/ordersWould require mine operators to pay contractors’ civil penalties if Would require mine operators to pay contractors’ civil penalties if contractors defaultcontractors defaultWould bar attorneys from representing both company and its agents Would bar attorneys from representing both company and its agents (leaving supervisors without counsel during initial investigations in (leaving supervisors without counsel during initial investigations in most cases)most cases)Would give MSHA enhanced subpoena power (increasing “fishing Would give MSHA enhanced subpoena power (increasing “fishing expeditions”)expeditions”)Would add new $250,000 penalty for Pattern of Violations – on top Would add new $250,000 penalty for Pattern of Violations – on top of underlying civil penalties!of underlying civil penalties!Amendment to House bill would put all penalty revenues in “Trust Amendment to House bill would put all penalty revenues in “Trust Fund” to finance MSHA inspections/investigationsFund” to finance MSHA inspections/investigations

DOL “Wish List” for S-MINERDOL “Wish List” for S-MINER

Establish a new definition for significant and substantial violations so Establish a new definition for significant and substantial violations so that all are presumed to be S&S unless they are technical or that all are presumed to be S&S unless they are technical or operator can prove they don’t threaten safety or health; operator can prove they don’t threaten safety or health; Establish a new definition for unwarrantable failure violations so that Establish a new definition for unwarrantable failure violations so that such can be the basis for a citation if the operator knew or should such can be the basis for a citation if the operator knew or should have known of the condition; have known of the condition; Include a general duty clause to authorize MSHA to address Include a general duty clause to authorize MSHA to address hazards (e.g., ergonomics) not authorized by existing standards; hazards (e.g., ergonomics) not authorized by existing standards; Expand MSHA’s jurisdiction to include mixed use roads and Expand MSHA’s jurisdiction to include mixed use roads and reclamation; reclamation; Establish a rebuttable presumption of discrimination when the Establish a rebuttable presumption of discrimination when the asserted adverse action occurs within six months of a protected asserted adverse action occurs within six months of a protected activity;activity;

DOL “Wish List”DOL “Wish List”

Provide greater authority for collection of outstanding Provide greater authority for collection of outstanding penalties from operators no longer engaged in mining penalties from operators no longer engaged in mining activities at the cite at which original violations occurred; activities at the cite at which original violations occurred; Provide authority for promulgating a regulation requiring Provide authority for promulgating a regulation requiring operators to obtain a license from MSHA to mine; operators to obtain a license from MSHA to mine; Mandate for ‘easy trials’ before the Mine Safety Review Mandate for ‘easy trials’ before the Mine Safety Review Commission for certain less serious violations; Commission for certain less serious violations; Prohibit Commission reviews of settlements unless Prohibit Commission reviews of settlements unless challenged within 30 days; challenged within 30 days; Provide Commission with authority for awarding fees and Provide Commission with authority for awarding fees and legal costs to MSHA when any portion of an operator’s legal costs to MSHA when any portion of an operator’s contest is frivolous, abusive or dilatory. contest is frivolous, abusive or dilatory.

QUESTIONS?QUESTIONS?

Adele L. Abrams, Esq., CMSPAdele L. Abrams, Esq., CMSP

301-595-3520301-595-3520

[email protected]@aol.com

MSHA Rules to Live By Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams, PC 301-595-3520.

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Transcript of MSHA Rules to Live By Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams, PC 301-595-3520.