INTERPRETATION, APPLICATION AND GUIDELINES
ON ENFORCEMENT OF 30 CFR
INTERPRETATION, APPLICATION AND GUIDELINES
V.G-1 Reporting PCB Spills
Under the authority of the Toxic Substances Control Act, the Environmental Protection Agency (EPA) requires that spills of polychlorinated biphenyl (PCB) be reported whenever the incident poses a substantial risk to human health or to the environment. PCBs have been shown to cause chronic toxic effects in many species even when they exist in very low concentrations. Well-documented tests show that PCBs cause, among other things, reproductive failures, gastric disorders, skin lesions, and tumors in laboratory animals.
Workers exposed to PCBs may show a number of symptoms and adverse effects including, but not limited to, chloracne and other epidermal disorders, digestive disturbances, jaundice, impotence, throat and respiratory irritations, and severe headaches.
Spills in mines most commonly result from damage to transformers or capacitors containing PCB dielectric fluid. EPA assumes that a transformer or capacitor contains PCBs if: (1) the nameplate indicates it contains PCB dielectric fluid; or (2) the owner or operator has any reason to believe that it contains PCB dielectric fluid. If a transformer or capacitor does not have a nameplate, and there is no information to indicate the type of dielectric fluid in it, the transformer or capacitor is assumed to contain PCB fluid. PCB dielectric fluids may be listed under the following trade names: Askarel, Aroclor, Pydraul, therminal, Pyroclor, Santo therm, Pyralene, Pyranol, Inerteen, Asbestol, Chlorextol, Diachlor, Dykanol, Elemex, Hyvol, No-Flamol, Saf-T- Kuhl, Aroclor B, Chlorinol, Chlorphen, and Eucarel.
As a general rule, EPA does not require that spills involving a single capacitor be reported unless PCBs threaten to enter a water-course. Minor leaks in transformers, such as bushing leaks or weeping, also do not require reporting. However, such spillage or leaking should be stopped and repaired as soon as possible.
If a spill should occur at a mine, the mine operator's first priority should be to control the spread of the spill by damming or diking the leak. Any threat of contamination to water supplies should be given the highest priority. Appropriate personal protection (e.g., impermeable gloves, boots and aprons, goggles, and respirators) must be worn by persons cleaning up spills pursuant to applicable MSHA regulations.
Once the spill is contained, clean-up measures can begin. All materials contaminated with PCBs, including soil and debris, should be collected, stored and disposed of in accordance with EPA regulations.
Upon discovery of a PCB spill, the district manager shall be notified immediately. The procedures for handling spills are set forth in the MSHA Health Inspection Handbook.
V.G-2 Operator Responsibility Over Customer Vehicles
It is the responsibility of the operator of a mine to enforce mandatory safety standards on all vehicles entering the mine property. In the area of backup alarms on customer trucks, the requirement could be met in several ways, including the following:
- Traffic patterns can be established to eliminate the need to backup.
- Operator personnel can act as observers where trucks are required to backup.
- Rules can be established that while loading, the customer truck drivers must stay in their truck cabs if the cabs are protected by canopies; or
- If the customer truck drivers must get out of their cabs, designated safe areas must be provided.
V.G-3 Suspected "Foul Play" Felonies
It is MSHA's policy to cooperate with state and local law enforcement officials in all circumstances where a felony violating state or local law is suspected.
If, in the course of an inspection or investigation, there is reason to believe that foul play has occurred (for example, a death or an injury of suspicious cause or a fire of suspicious origin), the following procedures should be followed:
- The inspector or investigator should consult through normal channels with the district manager.
- The district manager should contact the Administrator's Office and the appropriate Regional Solicitor's Office.
- After consultation with the Administrator's Office and an attorney in the Regional Solicitor's Office, promptly report the matter to appropriate state or local law enforcement officials.
- Cooperate with the state and local officials, but ensure that any evidence which may also be relevant to a possible Mine Act violation is preserved.
- If state or local law enforcement officials wish to participate in MSHA's investigation, the matter first should be cleared with the Supervisory Special Investigator in the headquarters office.
- If only evidence or other information is being shared with state or local law enforcement officials, advance clearance from headquarters is not necessary, but the Supervisory Special Investigator should be promptly apprised of any such activities or contacts.
V.G-4 Mine Plan Approval Procedures
Under the Federal Mine Safety and Health Act of 1977, and the implementing standards and regulations, various plans and programs are required to be prepared by the mine operator and submitted to MSHA for approval. Inspectors should review all plans and programs before beginning an E01 inspection so that the plans and programs can be evaluated for adequacy during the inspection. In addition, management systems should be established in each District to ensure that all mine plans and programs are reviewed periodically. The period between reviews should be established on a plan-by-plan basis, except as provided for by Agency standards, such as the 6-month review of ventilation and roof control plans. In addition, the system should provide a record of all such reviews. Mine operators should be promptly advised to update their plans when an MSHA review indicates the plan is no longer adequate.
After the initial approval of plans, changes may be requested by the mine operator for approval. If MSHA cannot approve the requested changes or needs additional information, the operator should be notified in writing of what information is needed or why the changes cannot be approved. The process should be completed quickly and the entire plan should not be opened for review, unless it is scheduled for review under the District's management system.
A thorough review of proposed mine plan provisions includes evaluation of comments provided by interested persons, such as the representative of miners. Accordingly when such input is received, it is important that the District review and consider that information in the plan approval process.
Contest of Mine Plan Approval Actions
In those situations when MSHA can no longer accept a provision of an approved plan, cannot approve a provision in a new plan, or cannot approve a proposed change to an approved plan, operators should be afforded the opportunity to contest MSHA's denial of approval. Where the operator disagrees with MSHA and indicates the desire to seek a citation to contest before the Federal Mine Safety and Health Review Commission, a citation should be issued. Normally, this would be a 104(a) citation and not involve unwarrantable failure findings, unless the circumstances justify it. The following several paragraphs illustrate how the three situations described can be handled.
When a plan provision is considered no longer adequate, the plan approval revocation procedures need to be followed. Upon revocation of approval, a citation must be issued for operating without an approved mine plan. Abatement can then be accomplished by the operator adopting a plan provision satisfying MSHA's concern. It may be appropriate for the operator to have this acceptable plan provision prepared before the citation is issued so that prompt abatement occurs. With this approach, there is no need to operate in violation of the mine's approved plan, and the violation would be "technical" in nature.
In the case of an operator-proposed change to an existing approved mine plan, if approval of the change is denied, the operator could notify the District that, as of a certain date, the mine's existing approved plan is no longer adopted by the operator, and that the operator intends to adopt the proposed change which is not approved. On that date, a 104(a) citation would be issued for the operator's failure to have and adopt an approved plan. Abatement would be achieved by the operator promptly adopting the provisions of the most recently approved plan for the mine. Again, there need not be any changes made in the actual mining procedures, and the violation would be "technical" in nature.
The case of a new mine plan with a provision that cannot be approved could be handled in a similar manner. The operator could indicate that mining operations will begin on a particular date, using the plan that contains the provision which is not approved. On the date indicated for starting operations, a citation would be issued for failure to adopt and follow an approved plan, as required by the applicable standard. Abatement would be achieved by the operator promptly adopting provisions that satisfy MSHA's previously documented concerns.
In each of these cases, the operator would have the option of contesting the citation issued and presenting to an administrative law judge the reasons why the disputed plan provision should have been approved. Likewise, MSHA would present its reasons for revoking or denying approval.
Nothing in the above paragraphs is intended to interfere with or change the practice of issuing citations for any failure to follow approved plans found during inspections and investigations.
Criteria and Guidelines in Mine Plan Approvals
On occasion, MSHA has required criteria from the roof control and ventilation standards to be included in plans for all mines as a condition of the approval, without appropriate regard for the specific mining conditions. There have also been instances when Agency "guidelines" have been required in plans in a similar manner. The use of the criteria and guidelines in this manner has been successfully challenged in court and should be discontinued.
MSHA standards require suitable plans to be developed on a mine-by-mine basis. Criteria and guidelines are reference information in the same nature as experience and knowledge of the particular conditions at the mine. Certain criteria or guidelines may have broad application, but their inclusion should be on an "as needed" basis, rather than an across-the-board requirement. The evaluation should be whether the provision contained in a guideline is needed at a specific mine, rather than being concerned with why it is not included in the mine plan. Plans are not required in all cases to conform to the criteria, provided that no less than the same measure of protection will be afforded to the miners as would result from conformance with the criteria. Likewise, when a mine operator exceeds the requirements of an approved mine plan, this should not result in immediately requiring the additional measures to be made a part of the mine plan. This kind of revision should be based on an "as needed" basis, taking into account current and projected mining conditions.
MSHA-Initiated Mine Plan Changes
After review by the District, if provisions of a mine plan are identified as unsuitable to the particular conditions at the mine, established Agency procedures apply. They are:
- Written notification from the District Manager to the operator which states that changes are needed in the plan, identifies the reason why changes are needed, affords the operator an opportunity to meet with District personnel to discuss any proposed changes, and sets a reasonable time for the operator to submit revised plan provisions to the District.
- If the operator fails to respond within the time provided, or through District and operator discussions the differences concerning the plan cannot be resolved and the operator does not resubmit a revised plan, a second written notification is sent from the District Manager to the operator. The purpose of this notification is to inform the operator that the District continues to be unable to approve the plan with the existing provisions, specify a time by which suitable plan provisions must be submitted by the operator to the District, and make it clear that after that time approval of the plan in its present form will be revoked and the operator will be without the required approved plan. Operating after the revocation date is a violation of the standard requiring the approved plan.
Management System Controls
The responsibility for plan approvals is assigned to the District Manager who functions through the District organization. However, this approval authority can be redelegated to the Acting District Manager in his/her absence. Below are fundamental management system controls necessary for proper administration of the plan and program approval process:
- Completion of the final staff review by personnel located at the District Office.
- Coordination of the progress of the plan through the approval procedures by a supervisory technical specialist or engineer to ensure that the following are completed:
- a check is made to determine that all required information is submitted;
- a check is made to determine that comments received from representatives of the miners have been considered and addressed;
- the plan is evaluated for provisions that are contrary to existing standards or regulations;
- Uniform Mine Files are checked during review of existing approved plans for information relating to plan adequacy; and
- cross-communication with other plan approval groups occurs when appropriate.
- Evaluation of each plan's technical adequacy and completeness by the District Manager, through the supervisory technical specialist or engineer, as follows:
- when necessary, conducting an on-site investigation by technical specialists; and
- acquiring and considering field office input from local inspectors during plan reviews, and addressing specific recommendations.
- Contacts by the District with mine operators to request additional information should be limited to specially designated MSHA personnel, or a specially designed system.
- Upon conclusion of a mine-site evaluation by a technical specialist, a technical survey, or an inspector's evaluation, opportunity for discussions are required with mine operations officials and identified representatives of the miners.
- Ensure that recommendations to approve or deny approval of plans are made to the District Manager.
- Approved plans and/or approved supplements are to be promptly provided to the inspection supervisor assigned to the mine for inclusion in the uniform mine file.