Several regulatory factors driven by the Mine Safety and Health Administration are bearing down on blasting contractors. This is especially troubling for large contractors as this has dramatic effects on contractors' safety and productivity. Many of these factors have direct or downstream effects on mine operators. Being aware of them may help lessen the negative impacts.

Because of the ever-rising tide of new regulatory burdens, more mine and quarry operators are choosing a contractor to blast rock instead of doing it themselves. As with any service, an increase in the contractor's cost of providing the service is passed on to the customer.

According to MSHA's Data Retrieval System, five of the largest blasting contractors in the United States were penalized a total of $681,505 by MSHA and reported a total of nearly 2 million hours worked in mines in 2008. These five contractors were penalized by MSHA an average of $0.35 for every hour an employee worked in a mine. Aside from the monetary fines, contractors waste enormous resources contesting penalties and complying with regulations that have little to no bearing on safety.

The most significant factor may be MSHA's policy that requires independent contractors to operate at all locations across the country under one identification number. Meanwhile, mine operators are entitled to obtain unique identification numbers at every mine location. This stacks the deck against large contractors because they accumulate excessive points during the penalty-assessment phase.

MSHA applies the identification-number policy inconsistently to contractors. There were 8,465 contractor identification numbers with hours worked in the first three quarters of 2008. A review of the names and addresses these contractor numbers reveals more than 240 groups of numbers with the same name, street address or post box. Only eight of the 240 groups with multiple identification numbers were blasting contractors. Recently, a blasting contractor that operates coast to coast in nearly 1,000 mines on one identification number was denied having more by MSHA.

An MSHA said only that it was the agency's policy to issue one identification number per company.

In 2007, MSHA revised and significantly increased its penalty amounts. Almost unnoticed at the time, MSHA devised different scales in determining penalty points for mines as compared with contractors. Penalties to contractors tend to be much higher than to mines in similar circumstances because penalty assessments for categories such as size of entity, history of violations and repeat violations are tied to the identification number.

Table 1 compares the penalty assessment points that might be accrued for contractors and metal and nonmetal mines of various sizes. The table clearly shows that mine operations can be much larger than contractors yet receive the same amount of points or less. Also, mining operators of similar size as contractors receive much fewer points.

The metric MSHA uses to measure the history of violations of mine operators is the number of violations per inspection day, a prorated value that normalizes variance in the inspection frequency from one operator to another.

However, the metric MSHA uses to determine the history of violations of contractors is the total number of violations in all mines where the contractor worked. The largest blasting contractors work many hundreds of thousands of hours in many hundreds of different mines making it virtually guaranteed that they will start out the penalty assessment process with many points, in some cases the maximum of 25 points for history of violations.

Recently, a national blasting contractor kept track of the number of hours it was inspected by MSHA during a 15-month period (238 hours) in which it received 12 MSHA citations (seven points). This was a rate of 0.25 violations per five hours of inspection. MSHA considers one inspection day to be five hours. A mine can earn up to 0.9 violations per inspection day, nearly four times as many as the contractor's rate, and still only receive six points.

THE SAME DISPARITY potentially exists in the repeat violation penalty assessment category. Fortunately, few if any blasting contractors receive six or more citations for the same violation in a 15-month period. Contractors accrue no additional points for five or less repeat violations in a 15-month period. The end result is an average penalty assessment to blasting contractors that is thousands of dollars for even minor infractions.

The five contractors mentioned earlier start out with an average of 19 points for the entity size and 25 points for history of violations. Add another 50 points for moderate negligence, unlikely to occur likelihood, potentially fatal consequences (almost always the case with explosives-related violations), and if the explosives event was determined to impact 10 or more miners, the final point total would be 112 points, worth a penalty of $7,176. Take away the 44 points for entity size and history of violations and the penalty would be $212 for the same violation.

In extreme cases, the difference in penalty between a small and large contractor for identical offenses can be more than $58,000.

Contractors should have no complaint about penalties if safety was actually compromised by the violation. Unfortunately, a significant portion of violations are written over sections of the regulations in dire need of reform. MSHA's metal/nonmetal explosives regulations were last revised in the early 1990s and are reflective of late 1980s' technology. They have major inconsistencies with industry standards. For example, new technology such as electronic digital delay detonators cannot be used while complying with MSHA's explosives regulations. These types of technologies could bring great safety and productivity benefits to mining.

To work around this dilemma, MSHA issues program information bulletins and technical reports to exempt specific brands of electronic blasting systems from the problematic regulations. This mysterious and cumbersome process is an obstacle to entry into the marketplace and limits mine operators' options.

MSHA DOES NOT have a definition of explosives in its metal/nonmetal regulations. It refers to nonexistent sections of the Department of Transportation regulatory code (30 CFR 56.57.6000) for the definitions of detonator, blasting agent and explosive. MSHA's explosives regulations still use the explosives classification system (Class A, B and C) abandoned by DOT in 1992 and now considered a violation if used in transportation. A Federal Mine Safety and Health Review Commission administrative law judge described MSHA's explosives definitions as being unhelpful to the case.

Because the regulations are so outdated, MSHA issues citations for things that are insignificant while significant safety and security issues are not citable.

THE MOST COMMON citation written to contractors under MSHA's explosives regulations is for violations of nonsparking mandates that relate to blasting with black powder. There absolutely is no hazard to modern products from frictional sparks. MSHA will not allow nonmass detonating Division 1.4 detonators to be stored in a Type 4 magazine, a practice allowed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. At the same time though, SLP-22 boxes can be used to separate mass-detonating Division 1.1 fuse detonators from explosives on the same vehicle; a dangerous practice not allowed by the Department of Transportation.

Those who use nonelectric initiation systems have no mandate to evacuate the blast area upon the approach of a thunderstorm. MSHA does not require that explosives remain locked when stored in underground mines.

In 2007, the Small Business Administration selected MSHA's explosives regulations as one of top 10 federal regulations in need of review. Following the SBA selection, MSHA announced plans to issue an advanced notice of proposed rule making on its explosives regulations.

However, MSHA withdrew these plans in December 2009. An agency official explained that this move allows it to focus limited resources on higher priorities. Indeed, since years can pass without an explosives-caused fatality or injury in mining, industry has become its own worst enemy to regulatory reform.

MSHA ACKNOWLEDGES THAT disparities between the regulating bodies exist and says that reflects the different authorities of each agency. It says DOT regulations address the transportation, not storage, of explosives on public roadways. Regulations enacted by ATF address explosives stored at businesses. MSHA's explosives regulations address the storage, use and transportation of explosives at surface and underground coal and metal and nonmetal mining sites.

Recent mining catastrophes have brought intense pressure on MSHA to address perceived safety deficiencies in mining. For the first time in its history, MSHA met its congressionally mandated frequency of inspection criteria in 2008, thus, MSHA's presence has increased. Figure 1 shows that more citations were written to contractors under the explosives rules in surface metal and nonmental mines than all other mines combined.

Explosives' regulations enforcement for contractors appears to have increased dramatically compared with overall enforcement. The total number of citations written by MSHA to all independent contractors increased 13% from April 2006 through June 2007 to April 2007 through June 2008. However, the number of citations written under MSHA's explosives regulations to independent contractors increased 62% in the same period.

Additionally, Institute of Makers of Explosives members have reported a dramatic increase in the issuance of significant-and-substantial citations recently. And MSHA has curtailed the appeal process, making it more difficult to seek vacation of citations.

Prior to 2006, MSHA trainees received 28 hours of classroom instruction on explosives by an instructor who spent most of his career in explosives; an IME representative provided 2.5 hours of instruction on commercial explosives. Additionally, each attendee received a day of hands-on training at a mine. From 2006 to 2008, it was cut to 21 hours of instruction and no field exercises. The day of hands-on instruction recently has been added back to the curriculum.

Like any perfect storm, a small change in one of the factors above can dramatically affect the end result. However, MSHA has yet to show its intention to make any changes. No doubt, the scarcity of explosives accidents in mining works against the industry when it comes time for MSHA to prioritize its agenda.

But, a scarcity of incidents is no reason to believe mining has rid itself of long-time hazards, like those associated with impoundments, roof control and gob gas. Hopefully, we won't be adding explosives to that list anytime soon.

Santis has been the manager of technical services for the Institute of Makers of Explosives since 1998. He holds a bachelor's and a master's degree in mining engineering and spent 12 years working for the U.S. Bureau of Mines.

Rick Markley contributed to this story.

TABLE 1 - MSHA Penalties Assessed

Type of Operator	Annual Hours Worked at Mine	Annual Hours Worked at Mine (by entity)	Penalty Assessment Points (by entity size)
Contractor	n/a	200,000	16
M/NM Mine	200,000	Over 10 million	16
Contractor	n/a	700,000	24
M/NM Mine	700,000	700,000	11
Contractor	n/a	30,000	8
M/NM Mine	30,000	1 million	8