MSHA INCREASES CIVIL PENALTY AMOUNTS AND SETS NEW RULES FOR ELECTRONIC DETONATORS IN METAL/NONMETAL MINES
January 17, 2020
For clients and friends of Jackson Kelly PLLC
Volume 16, Number 1
©2020 Jackson Kelly PLLC
Federal mine regulators started off 2020 with a few New Year’s Resolutions of their own. January was a busy month for the Mine Safety and Health Administration (“MSHA”) in the Federal Register, the publication used by federal agencies to announce new or changing standards. This month, MSHA published updated tables for calculating civil penalties that are assessed on citations and orders issued to mine operators as a result of its annual inflation adjustment. MSHA also issued revised safety standards for explosives at metal and nonmetal mine sites. These revisions focused on detonators used in explosives operations.
ASSESSMENT OF CIVIL PENALTIES
As mine operators know, when MSHA issues a citation or order for violation of a safety standard under the authority vested to the agency by the Mine Act, the financial penalty for those violations will be calculated based on a number of factors. The size of the mine and the size of the “controlling entity” that oversees the mine will both be weighted. A point value is also assigned to the operator’s history of violations per inspection day (as a ratio ranging from 0.0 to more than 2.1 violations per day of inspection). Points are also assigned based on how many repeat violations of the same safety standard have been found over the past 15 months. Once the mine site points have been calculated, each violation is assigned a point value based on the negligence, likelihood, severity, and number of persons potentially affected by the violation. Using these metrics, each violation has a calculated point value, and this point value corresponds to a civil penalty amount under 30 C.F.R. § 100.3.
Beginning January 15, 2020, the cost of those penalties increased by 1.764%. The revised rule increases the minimum penalty for citations with point scores less than 60 from $135.00 to $137.00. On the high end, the penalty for violations with point scores in excess of 140 has been increased from $72,620.00 to $73,901.00. The cost of noncompliance continues to rise. The minimum penalties also increased for § 104(d)(1) citations and orders (from $2,421.00 to $2,464.00) and for § 104(d)(2) orders (from $4,840.00 to $4,925.00). Penalties for failure to provide timely notification of an accident under 30 C.F.R. § 50.10 increased from a minimum of $6,052.00 to a minimum penalty of $6,159.00. Failure to correct a violation cited under § 104(a) may now cost an operator up to $8,006.00 per each day the violation continues unabated. A violation of MSHA’s mandatory smoking standard now carries a $338.00 penalty. Finally, the penalty for flagrant violations under § 110(b)(2) can now cost an operator as much as $270,972.00.
ELECTRONIC DETONATORS
Blasting work in metal and nonmetal mines is accomplished by the use of detonators to trigger larger explosive charges. Over the last few decades, most of the detonators used in blasting have become electronic detonators. Electronic detonators use electronic components to transmit a firing signal with validated commands and secure communications to each detonator. These detonators are acknowledged by MSHA to be at least as safe, if not safer, than more traditional electric and non-electric detonation. However, electronic detonators were not specifically addressed in the metal and nonmetal regulations. Historically, MSHA has believed that the language in the regulation was defined so as to automatically include new detonators as they were developed. However, at the request of the Small Business Administration, and based on industry input, MSHA has revised some sections of the regulations to address electronic detonators.
Electronic detonators were specifically added to the definition of detonator under 30 C.F.R. §§ 56/57.6000. In the event of a misfire, MSHA has added paragraph (c) to 30 C.F.R. §§ 56/57.6407 to require that blasting crews wait for the manufacturer recommended time or 30 minutes, whichever is longer, before entering a blast area when using an electronic detonator. MSHA has updated 30 C.F.R. §§ 56/57.6407 to specifically include electronic detonators but did not change the requirements of the standard because “the Agency believes that most or all electronic detonator systems already comply with this safety standard.” Finally, MSHA has amended 30 C.F.R. § 57.6604 to include electronic detonators in the safety standard for electrical storm precautions. MSHA explicitly extends the requirements that crews suspend blasting operations during the approach and progress of an electrical storm. While the inclusion of electronic detonators is important for clarity in the regulation, the meaningful changes to operators are minimal.
These amendments were made through a Direct Final Rule. The changes are effective on March 16, 2020, unless substantive adverse comments are received by February 13, 2020. If that happens, MSHA will withdraw this Direct Final Rule and proceed under notice and comment rulemaking.
Jackson Kelly PLLC’s Occupational Safety and Health team is available to assist clients in developing customized strategies for responding to, and complying with, changes in regulation that impact operations and employee safety.
WORKPLACE SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
303.390.0008
kjohnston@jacksonkelly.com
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