Page 1 of 11 2014-CIC-0047

MSHAs Electrical Regulations: Use Prudence to Avoid Pitfalls

C. Gregory Ruffennach
Attorney
1629 K St. N.W., STE 300
Washington, DC 20036
(443) 521-3027
greg@ruffennachlaw.com

Abstract - The Mine Safety and Health Administration (MSHA) is a federal law enforcement agency that
enforces electrical and other regulations at mining and cement operations. Many of the electrical
regulations, which are set out at 30 C.F.R. Part 56.12, can be fairly characterized as simplistic, broad, dated
and confusing. MSHA often reads requirements or prohibitions into its regulations that are not evident
from the language of the regulations. Mine operators need to understand that the regulations are essentially
interpreted by MSHA using a reasonably prudent person standard. An operators failure to anticipate
MSHAs changing expectations for a reasonably prudent person can result in substantial penalties, closure
orders, abatement predicaments and even penalties against its management. Supervisors and managers
with responsibility for electrical systems, particularly those using newer technologies that are beyond
MSHAs expertise, need to be proactive in anticipating, avoiding and addressing creative MSHA
enforcement.

I. FEDERAL MINE SAFETY

In the United States, mine safety is regulated by the federal government. In 1977, Congress enacted the Federal
Mine Safety and Health Act (Mine Act).1 Because the Mine Act contains a very broad definition of mine,
which includes mineral milling, portions of cement plants are squarely within MSHA jurisdiction.2 Under the
Mine Act, compliance responsibilities fall on operators, which has been broadly defined to include owners,
operators and contractors. 3

The Mine Act established a three-part system to attempt to improve mine safety. The first part of the system is
regulation.4 The Mine Safety and Health Administration (MSHA) publishes regulations in the Code of Federal
Regulations (CFR).5 The second part of the system is inspection.6 MSHA is required to conduct inspections of
cement plants and quarries to determine compliance with the regulations. The third part of the system is sanctions
for non-compliance with the regulations.7 The sanctions are supposed to create a deterrent to non-compliance.8

II. MSHAS ELECTRICAL SAFETY REGULATIONS AND THEIR PROBLEMS

MSHAs regulations pertaining to electrical safety at cement operations are primarily set out at 30 C.F.R. Part
56.12.9 As set out below, there are several problems with MSHAs electrical regulations, which can present
obstacles to operators in their attempts to achieve compliance.

In many respects, MSHAs electrical regulations are out of date. The regulations were initially promulgated after
the Mine Act was enacted in 1977 and were largely derived from safety standards initially developed in the
1960s.10 The regulations have remained largely unchanged despite the adoption and development of new electrical
technologies such as programmable logic, LED lighting, GFCIs, etc. However, the old-age of the regulations has
not prevented MSHA from attempting to mandate and regulate modern technologies. For example, MSHA has
cited 30 C.F.R. 56.12002 and 56.12025 to require mine operators to install and maintain GFCI devices in
bathrooms and wet areas.

978-1-4799-3294-8/14/$31.00 2014 IEEE

 2014-CIC-0047 Page 2 of 11

Some of MSHAs electrical regulations are confusing and unclear.11 For example, MSHAs electrical lockout
standards permit other measures as a substitute for lockout and tagout.12 However, MSHA inspectors frequently
provide conflicting information regarding whether other measures, such as direct communication, are permitted.
Additionally, the lockout standard could be literally construed to prohibit the lockbox systems that many operators
use, even though MSHA generally permits such systems.

Many of the electrical regulations are fairly characterized as simple and brief, requiring the mine operator to
make judgment determinations as to what is required to achieve compliance.13 The underlined phrases in the
Appendix indicate areas where mine operators and their agents are expected to apply their judgment in determining
how to comply. Nearly every MSHA electrical regulation involves a judgment call of some sort.

In addition, there is a catch-all regulation in MSHAs electrical regulations, 30 C.F.R. 56.12030, that can be
construed to cover just about any electrical condition that MSHA determines to be unacceptable.14 The standard
permits MSHA to issue a citation for any condition that the agency deems potentially dangerous. Given that
electricity is inherently dangerous, the regulation is capable of being arbitrarily enforced, with the benefit of
hindsight.

Finally, there is another catch-all regulation included in MSHAs machinery and equipment regulations that is
broad enough to cover electrical systems that are not installed or operating in a safe manner.15 The standard, 30
C.F.R. 56.14100(b), requires that Defects on any equipment, machinery, and tools that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard to persons. 16

III. MSHA INSPECTIONS

Surface operations, such as cement plants, are inspected biannually by MSHA.17 Generally, inspections by
MSHA at cement plants last several weeks. The inspections are conducted by general inspectors, who usually do
not have specialized training in electrical systems. Although very few MSHA inspectors are certified or licensed
electricians, compliance with MSHAs electrical regulations is often a focal point of a MSHA inspection and
electrical standards are frequently cited by MSHA.18

IV. GENERAL SANCTIONS & LIABILITIES

There are several types of sanctions available to MSHA under the Mine Act. The primary sanction is the citation
itself, which requires an operator to correct, or abate, the allegedly violative condition.19 Although MSHA does
not generally dictate the method of abatement, MSHA does require that the violative condition be eliminated.
Although eliminating violative conditions sometimes just requires simple fixes, abatement, in other situations, can
be onerous and expensive.

In addition to creating abatement requirements, Section 104(a) citations also expose an operator to mandatory
civil penalties. Penalties for ordinary citations range from $112 to $70,000 per violation.20 MSHA does not
ordinarily issue separate citations and penalties for each day that the violation exists. However, MSHA does have
authority to issue daily penalties, up to $7,500 per day, for an operators failure to abate a violative condition.21
MSHAs authority to assess daily penalties for a failure to abate is rarely exercised.

As a practical matter, penalties are, in large part, determined by the MSHA inspector because it is the inspector
that makes findings related to gravity and negligence when the citation is issued.22 These findings are indicated on
checkboxes on the citation form. MSHA uses a formula, which weighs the inspectors gravity and negligence
findings, along with the size of the mine operator, the operators history of violations and the operators good faith
in quickly abating, to determine the penalty.23 MSHA also has authority to forgo the formula assessment and

978-1-4799-3294-8/14/$31.00 2014 IEEE

Page 3 of 11 2014-CIC-0047

specially assess a penalty for a violation.24 In the last decade, penalties assessed by MSHA to metal and non-metal
mine operators have increased from $42 million in 2006 to $120 million in 2012.25

MSHA also has authority to order the withdrawal of miners, which can result in the closure of affected areas of
an operation. Although at surface operations the impacts of withdrawal orders are generally localized, the impacts
can extend throughout an operation. For example, a withdrawal order on a key piece of equipment, such as a
conveyor, can result in a chain reaction that ultimately requires shutdown of the kiln.26

Under Section 104(b) of the Mine Act, MSHA has authority to issue a withdrawal order for the affected area if an
operator fails to abate the condition within the deadline established by the inspector.27 MSHA is required to set
reasonable deadlines for abatement and provide extensions, when requested and where warranted.

Under Section 107(a) of the Mine Act, MSHA can issue a withdrawal order for a condition or practice that
presents an imminent danger, even one that is not in violation of MSHAs regulations.28 Although imminent
danger orders do not carry civil penalties, they can be used by MSHA to attempt to require an operator to undertake
corrective action that is not otherwise required by MSHAs Part 56 regulations. In addition, an imminent danger
order is frequently associated with a Section 104(a) citation, which is typically specially assessed a higher penalty
due to the higher level of gravity associated with the related imminent danger order.

Under Section 104(d), MSHA can issue a withdrawal order where the operators level of culpability associated
with a violation is deemed to be an unwarrantable failure.29 Unwarrantable failure is defined as aggravated
conduct constituting more than ordinary negligence. 30 Generally, multiple factors go into negligence
determinations including the level of danger, the duration of the condition, the extent of the conditions, the
obviousness of the conditions, and the operators prior efforts to achieve compliance.31 However, the trend in
enforcement is that if any supervisor or manager is aware of the violative condition, then MSHA deems the
violation to be an unwarrantable failure. Section 104(d) citations and orders are assessed minimum penalties,
starting at $2,000, and typically are assessed much higher penalties than ordinary Section 104(a) citations.32

V. EXTREME SANCTIONS AND SUPERVISOR LIABILITY

MSHA has additional weapons in its enforcement arsenal. Under Section 104(e) of the Mine Act, MSHA can
issue a withdrawal order and increased penalties, where there is a pattern of violations.33 MSHA can also issue
civil penalties up to nearly $250,000 for flagrant violations.34 In addition, MSHA can impose criminal sanctions,
including imprisonment, for willful violations.35

The most notable and frequently used special sanction is agent penalties. Section 110(c) of the Mine Act
authorizes civil penalties against agents of the mine operator who knowingly authorized, ordered, or carried out
such violation.36 This authority is unique to MSHA and supervisors at OSHA-regulated facilities do not face
similar exposure to personal liability.

MSHA broadly interprets the term agent to include anyone with supervisory authority, including plant
managers, safety managers, department managers, supervisors, foremen and even hourly leadmen.37 MSHA does
not generally bring Section 110(c) charges against hourly employees that do not have any supervisory
responsibilities.

Supervisor liability usually hinges on an evaluation of the supervisors conduct. In most cases, MSHA will file
charges if it determines that the supervisor had knowledge of the condition or practice. 38 MSHA usually focuses
on actual knowledge of the conditions. However, implied knowledge may suffice if the supervisor had reason to
know of the condition or practice. MSHA attempts to ascertain the supervisors knowledge of the condition during
a special investigation, which often follows any citation that mentions a supervisor by name. MSHA is not

978-1-4799-3294-8/14/$31.00 2014 IEEE

 2014-CIC-0047 Page 4 of 11

required to prove that the agent knew that he was in violation of the law, only that he knew about the condition or
practice.39

To prevail in a Section 110(c) proceeding against an agent, MSHA must also establish the supervisors conduct
was aggravated (more than ordinary negligence).40 The supervisors conduct is evaluated based on the same
factors that are used in evaluating the mine operators negligence. Generally, supervisors are held to a high
standard of care and can be liable when they have any lapse in judgment.41

Supervisor penalties, if assessed, are typically much lower than the penalties assessed against the operator for the
same violation. The maximum penalty is $70,000.42 However, penalties assessed against supervisors are usually in
the $500.00 to $5,000.00 range because MSHA is required to consider the supervisors size, the supervisors ability
to pay and the supervisors history of violations.43

VI. PROCEDURES FOR RELIEF

In most cases, the best starting point for seeking relief from an MSHA enforcement action, which appears to be
excessive or outside the bounds of the Part 56 regulations, is to ask the agency to internally review the inspectors
findings. The operator can informally challenge an inspectors findings during the inspection or at the inspection
close-out conference. There are formal procedures for objecting to citation findings at a conference with the
MSHA district manager.44 Typically, the district manager delegates conference authority to the field office
supervisor or to the districts conference litigation representative (CLR). Although enforcement by the inspector
is often coordinated by the agency and although there is a strong agency bias towards supporting an inspector,
starting with the agency is usually the least burdensome and least expensive method of seeking relief from MSHA
enforcement.

Where relief is not forthcoming from the district, there are procedures established in the Mine Act through which
an operator can challenge enforcement by MSHA.45 The Mine Act established a quasi-court, known as the Federal
Mine Safety and Health Review Commission (FMSHRC), to adjudicate disputes between the mine operator and
MSHA.46

The FMSRHC operates like a court. The contests are initially decided by administrative law judges after a
hearing in which MSHA and the mine operator present evidence in a trial like setting.47 The ALJs decision is
appealable to the Commission, which consists of five Commissioners appointed by the President.48 The decisions
of the Commission are appealable to the United States Court of Appeals, which has geographical jurisdiction over
the mine, or to the District of Columbia Circuit.49 Navigation of the review process is often measured in years, not
months.50

The operator can contest a citation or order within 30 days of its issuance.51 Generally, this procedure is used
when the operator is unable or unwilling to abate the condition or practice to the satisfaction of MSHA. The Mine
Act authorizes the operator to obtain an expedited hearing.52 In theory, an expedited hearing enables an operator
to obtain a ruling from the FMSHRC before having to commit resources to abating a condition that might not
constitute a violation. The procedure is not wholly satisfactory in that expedited hearings usually occur about 5 to
14 days after issuance of the citation, during which period the operator might be subject to withdrawal orders.

The operator, and any agent that is assessed a civil penalty, can also contest the citation or order within 30 days
of issuance of the penalty assessment. 53 Generally, this procedure used for routine challenges to citations/orders or
to the associated penalties that are derived from the findings in the citation. In a penalty contest, an operator can
contest the finding of violation, the inspectors findings regarding gravity and negligence and/or the penalty.54
Notably, once a penalty assessment is contested, the FMSHRC, not MSHA, has the final say on penalty. 55 The
FMSHRC can issue a higher penalty than the one assessed by MSHA.56 The vast majority of cases are resolved
through settlement prior to a hearing.

978-1-4799-3294-8/14/$31.00 2014 IEEE

Page 5 of 11 2014-CIC-0047

VII. PRINCIPLES OF REVIEW

The review process does not favor mine operators. There are substantial built-in legal and practical biases
against mine operators and their agents.

On questions of violation, the standard of review favors the Government. In a contest proceeding, the FMSHRC
is required to enforce the plain meaning of the standard, if the meaning is apparent from the language used in the
standard. 57 If the plain meaning is not apparent from the language of the standard, however, then the FMSHRC is
required to defer to MSHAs interpretation of the language, provided that MSHAs interpretation is reasonable.58
Thus, if an operator and MSHA both put forward reasonable interpretations of an ambiguous standard, MSHAs
interpretation will prevail. Essentially, MSHA wins all ties.

The extent of MSHAs ability to broadly construe its regulations is only limited by principles of fair notice,
which are embodied in the United States Constitution.59 The FMSHRC has ruled that a MSHA interpretation
cannot be enforced, on fair notice grounds, unless a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would have recognized the specific prohibition or requirement of the
standard.60 Prior MSHA enforcement, or lack thereof, can be determinative on the issue of notice.61

In determining whether a reasonably prudent person would recognize a prohibition or requirement, the
Commission considers accepted safety standards in the field, considerations unique to the mining industry and the
circumstances at the operators mine.62 For example, NEC or other consensus standards, may be relevant in
determining what is suitable, proper, adequate, correct, or sufficient.63 Additionally, the FMSHRC will
look at the operators own policies as practices as well as manufacturers instructions in evaluating an operators
claim of insufficient fair notice. 64

In most cases, neither fault nor danger are relevant on the issue of violation. The Mine Act has been construed as
a strict liability law, whereby an operator can be cited and fined even where it is faultless.65 For example, if an
employee deliberately causes the violation, the operator is still subject to a penalty.66 With the exception of a few
regulations, the absence of negligence is only relevant to the amount of the penalty, not to the violation itself.67
MSHA is also not required to prove that a hazard exists to establish a violation.68 The only exception is where the
cited standard specifically requires proof of a hazard.69

Gravity (degree of danger) and negligence (degree of fault) are only relevant to the amount of the penalty for the
violation. With respect to fault, ignorance of the law is not a defense to a violation, but is actually considered an
aggravating factor in the evaluation of fault.70 The actions of agents (supervisors and managers), who are held to a
high standard of care, are imputed to the mine operators for purposes of evaluating the mine operators
negligence.71 Thus, knowledge of a violative condition or practice by a supervisor nearly always equates to a
higher negligence finding against the operator. The knowledge and actions of hourly miners is not imputed to
mine operators for purposes of evaluating the operators negligence, but only if the operator has properly trained,
supervised and disciplined its workforce.72

In addition to the legal principles that favor the Government, there are some inherent practical biases against
mine operators. The Commissioners and the ALJs, who decide the cases, are lawyers, not mining or safety
professionals. Their lack of industrial experience can be problematic given that they are being asked to evaluate
what a reasonably prudent person familiar with the mining industry should recognize as a hazard. The review
process is imperfect because the operators conduct and the degree of danger in the industrial workplace are being
judged by persons who work in an office environment.73

978-1-4799-3294-8/14/$31.00 2014 IEEE

 2014-CIC-0047 Page 6 of 11

VIII. PRUDENCE TO MINIMIZE THE POTENTIAL FOR SANCTIONS

In light of the significant sanctions for noncompliance and a review process that favors the Government, mine
operators and their agents should proactively attempt to avoid compliance problems with MSHA. Generally, an
operator should consider the following guidelines:

Because ignorance of the law is not a defense to a violation, mine operators and their agents need to be
familiar with MSHAs Part 56 regulations.

Because mine operators are liable for a violation regardless of fault, mine operators should evaluate the use
of audits to attempt to discover violative conditions prior to MSHA inspections.

Because the negligence of its employees may be relevant to the negligence and penalty determinations,
mine operators should train employees to avoid violations and discipline employees for unsafe actions,
particularly those that are associated with non-compliance with Part 56.

Because mine operators and their agents are held to a high standard of care, they should error on the side of
caution when interpreting broad or ambiguous MSHA regulations and when evaluating hazards.

Because reasonable prudence is the standard under which a mine operators or agents conduct will be
reviewed, it is appropriate to look to consensus standards and industry trends for guidance, provided that they do
not directly conflict with MSHA regulations.

Because the mine operators existing policies and practices may be relevant to determining its compliance
with broad MSHA regulations, mine operators should review policies and practices to determine consistency
with MSHA regulations and consistently enforce appropriate policies that are in place.

Because actual or implied supervisory knowledge of a condition or practice is relevant to the operators
penalty amount and precondition to agent penalties, mine operators and their agents should affirmatively act to
address conditions and practices that may not comply with MSHA regulations.

IX. CONCLUSION

MSHA is a powerful federal law enforcement agency. Mine operators and their agents need to understand that
MSHAs generic regulations are often broadly construed. Any electrical work or installation will be judged on
standard of reasonable prudence, as determined by persons that often do not have industrial experience.
Therefore, mine operators and their agents should error on the side of caution when interpreting MSHA
requirements.

X. APPENDIX

(The following electrical regulations are codified at 30 C.F.R. Part 56 Section 12. Underlining has been added to
the regulatory text to exemplify phrases that are subject to interpretation.)

56.12001 Circuit overload protection.

Circuits shall be protected against excessive overload by fuses or circuit breakers of the correct type and capacity.

56.12002 Controls and switches.

Electric equipment and circuits shall be provided with switches or other controls. Such switches or controls shall be of approved design and
construction and shall be properly installed.

978-1-4799-3294-8/14/$31.00 2014 IEEE

Page 7 of 11 2014-CIC-0047

56.12003 Trailing cable overload protection.

Individual overload protection or short circuit protection shall be provided for the trailing cables of mobile equipment.

56.12004 Electrical conductors.

Electrical conductors shall be of a sufficient size and current-carrying capacity to ensure that a rise in temperature resulting from normal operations
will not damage the insulating materials. Electrical conductors exposed to mechanical damage shall be protected.

56.12005 Protection of power conductors from mobile equipment.

Mobile equipment shall not run over power conductors, nor shall loads be dragged over power conductors, unless the conductors are properly bridged
or protected.

56.12006 Distribution boxes.

Distribution boxes shall be provided with a disconnecting device for each branch circuit. Such disconnecting devices shall be equipped or designed in
such a manner that it can be determined by visual observation when such a device is open and that the circuit is deenergized, the distribution box shall be
labeled to show which circuit each device controls.

56.12007 Junction box connection procedures.

Trailing cable and power-cable connections to junction boxes shall not be made or broken under load.

56.12008 Insulation and fittings for power wires and cables.

Power wires and cables shall be insulated adequately where they pass into or out of electrical compartments. Cables shall enter metal frames of motors,
splice boxes, and electrical compartments only through proper fittings. When insulated wires, other than cables, pass through metal frames, the holes shall be
substantially bushed with insulated bushings.

56.12010 Isolation or insulation of communication conductors.

Telephone and low-potential signal wire shall be protected, by isolation or suitable insulation, or both, from contacting energized power conductors or
any other power source.

56.12011 High-potential electrical conductors.

High-potential electrical conductors shall be covered, insulated, or placed to prevent contact with low potential conductors.

56.12012 Bare signal wires.

The potential on bare signal wires accessible to contact by persons shall not exceed 48 volts.

56.12013 Splices and repairs of power cables.

Permanent splices and repairs made in power cables, including the ground conductor where provided, shall be:

(a) Mechanically strong with electrical conductivity as near as possible to that of the original;

(b) Insulated to a degree at least equal to that of the original, and sealed to exclude moisture; and

(c) Provided with damage protection as near as possible to that of the original, including good bonding to the outer jacket.

56.12014 Handling energized power cables.

Power cables energized to potentials in excess of 150 volts, phase-to-ground, shall not be moved with equipment unless sleds or slings, insulated from
such equipment, are used. When such energized cables are moved manually, insulated hooks, tongs, ropes, or slings shall be used unless suitable protection for
persons is provided by other means. This does not prohibit pulling or dragging of cable by the equipment it powers when the cable is physically attached to the
equipment by suitable mechanical devices, and the cable is insulated from the equipment in conformance with other standards in this part.

56.12016 Work on electrically-powered equipment.

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. Power switches shall be locked out or other
measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it. Suitable warning notices shall
be posted at the power switch and signed by the individuals who are to do the work. Such locks or preventive devices shall be removed only by the persons
who installed them or by authorized personnel.

56.12017 Work on power circuits.

978-1-4799-3294-8/14/$31.00 2014 IEEE

 2014-CIC-0047 Page 8 of 11

Power circuits shall be deenergized before work is done on such circuits unless hot-line tools are used. Suitable warning signs shall be posted by the
individuals who are to do the work. Switches shall be locked out or other measures taken which shall prevent the power circuits from being energized without
the knowledge of the individuals working on them. Such locks, signs, or preventative devices shall be removed only by the person who installed them or by
authorized personnel.

56.12018 Identification of power switches.

Principal power switches shall be labeled to show which units they control, unless identification can be made readily by location.

56.12019 Access to stationary electrical equipment or switchgear.

Where access is necessary, suitable clearance shall be provided at stationary electrical equipment or switchgear.

56.12020 Protection of persons at switchgear.

Dry wooden platforms, insulating mats, or other electrically nonconductive material shall be kept in place at all switchboards and power-control
switches where shock hazards exist. However, metal plates on which a person normally would stand and which are kept at the same potential as the grounded,
metal, non-current-carrying parts of the power switches to be operated may be used.

56.12021 Danger signs.

Suitable danger signs shall be posted at all major electrical installations.

56.12022 Authorized persons at major electrical installations.

Areas containing major electrical installations shall be entered only by authorized persons.

56.12023 Guarding electrical connections and resistor grids.

Electrical connections and resistor grids that are difficult or impractical to insulate shall be guarded, unless protection is provided by location.

56.12025 Grounding circuit enclosures.

All metal enclosing or encasing electrical circuits shall be grounded or provided with equivalent protection. This requirement does not apply to battery-
operated equipment.

56.12026 Grounding transformer and switchgear enclosures.

Metal fencing and metal buildings enclosing transformers and switchgear shall be grounded.

56.12027 Grounding mobile equipment.

Frame grounding or equivalent protection shall be provided for mobile equipment powered through trailing cables.

56.12028 Testing grounding systems.

Continuity and resistance of grounding systems shall be tested immediately after installation, repair, and modification; and annually thereafter. A
record of the resistance measured during the most recent tests shall be made available on a request by the Secretary or his duly authorized representative.

56.12030 Correction of dangerous conditions.

When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.

56.12032 Inspection and cover plates.

Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all times except during testing or repairs.

56.12033 Hand-held electric tools.

Hand-held electric tools shall not be operated at high potential voltages.

56.12034 Guarding around lights.

Portable extension lights, and other lights that by their location present a shock or burn hazard, shall be guarded.

56.12035 Weatherproof lamp sockets.

Lamp sockets shall be of a weatherproof type where they are exposed to weather or wet conditions that may interfere with illumination or create a
shock hazard.

978-1-4799-3294-8/14/$31.00 2014 IEEE

Page 9 of 11 2014-CIC-0047

56.12036 Fuse removal or replacement.

Fuses shall not be removed or replaced by hand in an energized circuit, and they shall not otherwise be removed or replaced in an energized circuit
unless equipment and techniques especially designed to prevent electrical shock are provided and used for such purpose.

56.12037 Fuses in high-potential circuits.

Fuse tongs or hot line tools shall be used when fuses are removed or replaced in high-potential circuits.

56.12038 Attachment of trailing cables.

Trailing cables shall be attached to machines in a suitable manner to protect the cable from damage and to prevent strain on the electrical connections.

56.12039 Protection of surplus trailing cables.

Surplus trailing cables to shovels, cranes and similar equipment shall be

(a) Stored in cable boats;

(b) Stored on reels mounted on the equipment; or

(c) Otherwise protected from mechanical damage.

56.12040 Installation of operating controls.

Operating controls shall be installed so that they can be operated without danger of contact with energized conductors.

56.12041 Design of switches and starting boxes.

Switches and starting boxes shall be of safe design and capacity.

56.12042 Track bonding.

Both rails shall be bonded or welded at every joint and rails shall be crossbonded at least every 200 feet if the track serves as the return trolley circuit.
When rails are moved, replaced, or broken bonds are discovered, they shall be rebonded within three working shifts.

56.12045 Overhead powerlines.

Overhead high-potential powerlines shall be installed as specified by the National Electrical Code.

56.12047 Guy wires.

Guy wires of poles supporting high-voltage transmission lines shall meet the requirements for grounding or insulator protection of the National
Electrical Safety Code, part 2, entitled Safety Rules for the Installation and Maintenance of Electric Supply and Communication Lines (also referred to as
National Bureau of Standards Handbook 81, November 1, 1961) and Supplement 2 thereof issued March 1968, which are hereby incorporated by reference and
made a part hereof. These publications and documents may be obtained from the National Institute of Science and Technology, 100 Bureau Drive, Stop 3460,
Gaithersburg, MD 20899-3460. Telephone: 301-975-6478 (not a toll free number); http://ts.nist.gov/nvl; or from the Government Printing Office, Information
Dissemination (Superintendent of Documents), P.O. Box 371954, Pittsburgh, PA 15250-7954; Telephone: 866-512-1800 (toll free) or 202-512-1800,
http://bookstore.gpo.gov, or may be examined in any Metal and Nonmetal Mine Safety and Health District Office of the Mine Safety and Health
Administration.

56.12048 Communication conductors on power poles.

Telegraph, telephone, or signal wires shall not be installed on the same crossarm with power conductors. When carried on poles supporting powerlines,
they shall be installed as specified by the National Electrical Code.

56.12050 Installation of trolley wires.

Trolley wires shall be installed at least seven feet above rails where height permits, and aligned and supported to suitably control sway and sag.

56.12053 Circuits powered from trolley wires.

Ground wires for lighting circuits powered from trolley wires shall be connected securely to the ground-return circuit.

56.12065 Short circuit and lightning protection.

Powerlines, including trolley wires, and telephone circuits shall be protected against short circuits and lightning.

978-1-4799-3294-8/14/$31.00 2014 IEEE

 2014-CIC-0047 Page 10 of 11

56.12066 Guarding trolley wires and bare powerlines.

Where metallic tools or equipment can come in contact with trolley wires or bare powerlines, the lines shall be guarded or deenergized.

56.12067 Installation of transformers.

Transformers shall be totally enclosed, or shall be placed at least 8 feet above the ground, or installed in a transformer house, or surrounded by a
substantial fence at least 6 feet high and at least 3 feet from any energized parts, casings, or wiring.

56.12068 Locking transformer enclosures.

Transformer enclosures shall be kept locked against unauthorized entry.

56.12069 Lightning protection for telephone wires and ungrounded conductors.

Each ungrounded power conductor or telephone wire that leads underground and is directly exposed to lightning shall be equipped with suitable
lightning arrestors of approved type within 100 feet of the point where the circuit enters the mine. Lightning arrestors shall be connected to a low resistance
grounding medium on the surface and shall be separated from neutral grounds by a distance of not less than 25 feet.

56.12071 Movement or operation of equipment near high-voltage power lines.

When equipment must be moved or operated near energized high-voltage powerlines (other than trolley lines) and the clearance is less than 10 feet, the
lines shall be deenergized or other precautionary measures shall be taken.

XI. END NOTES

1
30 U.S.C. 801, et. seq.
2
30 U.S.C. 802(h); see Watkins Engineers & Constructors, 24 FMSHRC 669 (July, 2002).
3
24
30 U.S.C. 802(d); Secy Labor v. Twentymile Coal Co, 456 F.3d 151 (D.C. Cir. 2006).
30
30 U.S.C. 802(h); see Watkins Engineers & Constructors, 24 FMSHRC 669 (July, 2002).
U.S.C. 811.
35
30
See U.S.C.
30 802(d);
C.F.R. Parts 1Secy Labor v. Twentymile Coal Co, 456 F.3d 151 (D.C. Cir. 2006).
to 199.
64 30 U.S.C. 811.
5
30 U.S.C. 813.
See 30 C.F.R. Parts 1 to 199.
6
30 U.S.C. 813.
7
30 U.S.C. 820.
8
See generally C. Gregory Ruffennach, Free Markets, Individual Liberties And Safe Coal Mines: A Post-Sago Perspective, 111 W. Va. L. Rev. 75 (2008).
9
See Appendix A.
10
See generally 50 Fed. Reg. 4054 (Jan. 29, 1985).
11
See e.g. James Ray empld by Leo Journagan Constr. Co., 20 FMSHRC 1014 (Sept. 1998)(noting uncertainty in MSHAs LOTO standard as applied to non-
electrical work on machinery).
12
30 C.F.R. 56.12016, 56.12017.
13
See Alabama by Products, 4 FMSHRC 2128, 2130 (December 1982).
14
See Appendix A.
15
30 C.F.R. 56.14100(b)(Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a
hazard to persons.)
16
See e.g. Palmer Coking Coal, 34 FMSHRC 620, 636-37 (March, 2012)(ALJ) (missing ground prong constitutes defect).
17
30 U.S.C. 813(a)(4).
18
Electrical standards, accounting for approximately 25% of MSHAs enforcement activity at surface nonmetal facilities, take many of the spots on MSHAs
top twenty list: [No. 1] 30 C.F.R. 56.12004 (9.39%); [No. 4] 30 C.F.R. 56.12032 (4.31%); [No. 8] 30 C.F.R. 56.12008 (2.76%); [No. 9] 30 C.F.R.
56.12028 (2.65%); [No. 10] 30 C.F.R. 56.12018 (2.65%); [No. 15] 30 C.F.R. 56.12030 (1.66%); [No. 16] 30 C.F.R. 56.12025 (1.55%). The frequently
cited list is available at http://www.msha.gov/STATS/Top20Viols/top20home.asp#.UvAAtv3-tg1.
19
30 U.S.C. 814(a).
20
30 C.F.R. 100.3(g).
21
30 U.S.C. 820(b)(1); 30 C.F.R. 100.5(c).
22
30 C.F.R. 100.3(a).
23
Id.
24
30 C.F.R. 100.5(a) & (b).
25
http://www.msha.gov/MSHAINFO/FactSheets/MSHAbytheNumbers/CalendarYear/Assessments%20data.pdf.
26
See e.g. Buzzi Unicem USA, 29 FMSHRC 490 (June, 2007)(ALJ)(kiln feed conveyor affected by MSHA withdrawal order)
27
30 U.S.C. 814(b).
28
30 U.S.C. 817(a).
29
30 U.S.C. 814(d).
30
See Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec., 1987).
31
See e.g. Midwest Materials Co., 19 FMSHRC 30, 34 (Jan. 1997).

978-1-4799-3294-8/14/$31.00 2014 IEEE

Page 11 of 11 2014-CIC-0047

32
30 C.F.R. 100.4(a) & (b); 30 C.F.R. 100.5(a).
33
30 U.S.C. 814(b); 30 C.F.R. Part 104.
34
30 C.F.R. 100.5(e).
35
30 U.S.C. 820(d).
36
30 U.S.C. 820(c).
37
See e.g. Martin Marietta Aggregates, 26 FMSHRC 663 (May 2000).
38
U.S. Department of Labor, MSHA Handbook No. PH05-I-4, Special Investigations.
39
Warren Steen Construction. Inc. and Warren Steen, 14 FMSHRC 1125 (July 1992).
40
See Maple Creek Mining, Inc., 27 FMSHRC 555, 566-67 (Aug., 2005).
41
See e.g. Lafarge Construction Materials, 20 FMSHRC 1140 (October, 1998).
42
30 U.S.C. 820(c).
43
30 U.S.C. 815(b)(1)(B) & 820(i).
44
30 C.F.R. 100.6.
45
29 C.F.R. 2700.20, 2700.26.
46
30 U.S.C. 823; see generally Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).
47
29 C.F.R. 2700.50-69.
48
30 U.S.C. 823.
49
30 U.S.C. 816.
50
See e.g. Secretary of Labor v. National Cement Company, 573 F.3d 788 (D.C. Cir., 2009).
51
29 C.F.R. 2700.20.
52
29 C.F.R. 2700.52.
53
29 C.F.R. 2700.26.
54
29 C.F.R. 2700.21(b).
55
29 C.F.R. 2700.30.
56
See e.g. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug., 2008) (judge substantially increased penalty).
57
See e.g. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994); Joy Technologies, Inc. v. Secy of Labor, 99 F.3d 991, 995 (10th Cir.,
1996).
58
Id.
59
See e.g. Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th Cir. 1982)(vacating violation of 30 C.F.R. 56.12016 on fair notice grounds).
60
Ideal Cement Co., 12 FMSHRC 2409, 2416 (November, 1990).
61
See Alan Lee Good dba Good Construction, 23 FMSHRC 995, 1004-05 & 1010 (Sept. 2001)(vacating guarding violations where there had been prior
inconsistent enforcement by MSHA); see e.g. Buzzi Unicem USA, 29 FMSHRC 490 (June, 2007)(ALJ)(vacating citation on fair notice grounds).
62
See e.g. U.S. Steel Mining Company, L.L.C., 25 FMSHRC 435, 440 (May 2005).
63
See Appendix.
64
See e.g. Steele Branch Mining, 18 FMSHRC 6 (Jan., 1996).
65 See Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), affd, 868 F.2d 1195 (10th Cir. 1989).
66 See Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July, 1995).
67 See e.g. 30 C.F.R. 56.12030 (is found language may require showing of negligence to establish violation).
68
See Allied Products, Inc., 666 F.2d 890, 892-93 (5 Cir. 1982).
69
See Essroc Cement Corp., 33 FMSHRC 459, 464 (Feb. 2011)(ALJ).
70
See Douglas R. Rushford Trucking, 23 FMSHRC 790 (Aug., 2001).
71
See Capitol Cement Corporation v. Secretary of Labor, 229 F.3d 1141 (4th Cir., 2000).
72
Southern Ohio Coal Co., 4 FMSHRC 1459 (August 1982).
73
C. Gregory Ruffennach, Saving Lives or Wasting Resources: A Critical Evaluation of the Federal Mine Safety and Health Act of 1977, Policy Analysis No.
453, Cato Institute, Washington, DC Sept. 19, 2003.

978-1-4799-3294-8/14/$31.00 2014 IEEE