MSHA has again attempted to confuse Production Operators

MSHA has changed the wording of their S&S enforcement policy in the latest update to Vol. I of their Policy Manual. What is quoted below is "Case Law" as established by the courts. If you have not seen it click on this address: http://http://www.msha.gov/REGS/COMPLIAN/PPM/PMVOL1C.HTM#25 and it will take you to the MSHA site and you can see the changes. The information says the same thing in more words. I see it as the Agency confusing the issue so that the Producers will back off and take any S&S citation. If you do not stay on top of the changes, it allows the inspectors to appear to have power which they do not. Here is the National published policy prior to the update:

MSHA                   PROGRAM POLICY MANUAL                       VOLUME I
                                                                   SEC 104
104(d) (1)1(e) (1)    Guidelines for Determining “Significant and

Substantial” Violations

The following guidelines describe the principles applicable to determining whether a violation is “significant and substantial” under Sections 104 (d) (1) and 104 (e) (1) of the Federal Mine Safety and Health Act of 1977.

 In Secretary of Labor, Mine Safety and Health Administration vs. National Gypsum Company, decided on April 7, 1981, the Federal Mine Safety and Health Review Commission held that

 "a violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature".

 General Guidelines. In determining whether a violation could “significantly and substantially contribute to the cause and effect of a mine safety or health hazard,” inspectors must first find that

1.an injury or illness would be reasonably likely to occur if the violation were not corrected; and

2.if the injury or illness were to occur,it would be reasonably serious.

Both of these findings must be made before a violation can be designated as “significant and substantial.” All of the facts relevant to this evaluation should be included in the inspector’s notes. Violations designated as “significant and substantial” should also be generally consistent with the information recorded on the Inspector’s Evaluation Section of MSHA Form 7000-3.

04/01/91 (Release 1-3)         17