leadership responsibilities responsibilities under the federal mine safety and health act of 1977...

Leadership Leadership ResponsibilitiesResponsibilities

Responsibilities Responsibilities under the Federal under the Federal Mine Safety and Mine Safety and

Health Act of 1977Health Act of 1977

Larry Miller & Larry Miller & Leland PayneLeland Payne

EFS Training EFS Training SpecialistSpecialist

Course TopicsCourse Topics

• DefinitionsDefinitions• Sections of the Mine ActSections of the Mine Act• Significant and Substantial (S&S)Significant and Substantial (S&S)• NegligenceNegligence• Unwarrantable failureUnwarrantable failure• AssessmentsAssessments• Company/agent violationsCompany/agent violations• Special investigationsSpecial investigations• PenaltiesPenalties

HISTORYHISTORY

In the Mine Act of 1977, Congress In the Mine Act of 1977, Congress declared:declared:

The first priority of the The first priority of the mining industry is the mining industry is the health and safety of health and safety of the the miner.miner.

HISTORYHISTORY


There was an There was an urgent need to urgent need to improve mining improve mining conditions.conditions.

HISTORYHISTORY


Mandatory standards Mandatory standards be established requiring be established requiring mine operators and mine operators and miners to comply.miners to comply.

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M/NM Fatalities 1960 to 2000

WHO IS RESPONSIBLE?WHO IS RESPONSIBLE?

The operators of mines, with the The operators of mines, with the assistance of miners, have the primary assistance of miners, have the primary responsibility to prevent the existence of responsibility to prevent the existence of unsafe and unhealthful conditions and unsafe and unhealthful conditions and practices in mines.practices in mines.

Federal Mine Safety and Health Act Federal Mine Safety and Health Act of 1977of 1977

DefinitionsDefinitionsMinerMiner - - any individual who works in a mineany individual who works in a mine


DefinitionsDefinitions

OperatorOperator - any owner, lessee - any owner, lessee

or other person who or other person who

operates, controls or operates, controls or

supervises a mine.supervises a mine.


DefinitionsDefinitions

OR

Any independent contractor performing services or construction at a mine. Contractors account for 30-35% of all mining fatalities.

INDEPENDENT CONTRACTORSINDEPENDENT CONTRACTORS

• Must comply fully with the Mine ActMust comply fully with the Mine Act• Will be cited for violations.Will be cited for violations.• Mine operator may also be cited for contractor Mine operator may also be cited for contractor

violationsviolations• Mine operator responsible for ensuring contractor is Mine operator responsible for ensuring contractor is

aware of MSHA regulations.aware of MSHA regulations.• Specify requirements in contracts to control contractor Specify requirements in contracts to control contractor

behaviorbehavior• Monitor contractor activitiesMonitor contractor activities

What is an Agent?What is an Agent?

ANYANY person charged with person charged with responsibility for the responsibility for the operation of all or part of a operation of all or part of a mine…or supervision of mine…or supervision of miners in a mine.miners in a mine.

What are some leadership What are some leadership responsibilities of responsibilities of

supervisors?supervisors?• Act like a supervisor in the presence of Act like a supervisor in the presence of

other employees other employees and set a good and set a good example.example.


supervisors?supervisors?• Wear protective equipment when at the Wear protective equipment when at the

mine site (shoes, glasses, hard hat, mine site (shoes, glasses, hard hat, etc.)etc.)


supervisors?supervisors?• Make certain employees are properly Make certain employees are properly

trained in their work duties, including hazard trained in their work duties, including hazard recognition, safe recognition, safe work practices, work practices, safe equipment safe equipment operation, etc.operation, etc.


supervisors?supervisors?• Have unsafe Have unsafe

conditions conditions corrected ASAPcorrected ASAP


supervisors?supervisors?• Be familiar with 30 CFR and the Mine Be familiar with 30 CFR and the Mine

ActAct

Training responsibilitiesTraining responsibilities

• Provide employees Provide employees with task training on with task training on equipment they are equipment they are not familiar with.not familiar with.


• Instruct employees Instruct employees not to operate not to operate equipment that they equipment that they feel is unsafe.feel is unsafe.


• When safety issues are brought up by When safety issues are brought up by employees, have a responsible person employees, have a responsible person check it out. check it out.


• Always act in ‘good faith.’Always act in ‘good faith.’

Supervisory responsibilities Supervisory responsibilities during a fatal investigationduring a fatal investigation

• Call for emergency assistance; then call Call for emergency assistance; then call superiorssuperiors

• Call MSHA and State agencyCall MSHA and State agency• Secure the scene of the accident to allow fatal Secure the scene of the accident to allow fatal

investigators to conduct investigationinvestigators to conduct investigation• Maintain secured area until released by MSHAMaintain secured area until released by MSHA

Note: Management must also conduct an Note: Management must also conduct an investigationinvestigation

The Mine Act: Levels of The Mine Act: Levels of EnforcementEnforcement

Section 103Section 103103(a)103(a) -- Mandatory minimum number of -- Mandatory minimum number of

inspections per year (4’s and 2’s)inspections per year (4’s and 2’s)103(d)103(d) -- Accident/Injury investigation & reporting -- Accident/Injury investigation & reporting

(30 CFR Part 50).(30 CFR Part 50).103(f)103(f) -- Right of the miner to have representation -- Right of the miner to have representation

on an inspection (30 CFR Part 40).on an inspection (30 CFR Part 40).103(g)103(g) -- Right to request an immediate inspection -- Right to request an immediate inspection

(30 CFR Part 43).(30 CFR Part 43).

The Mine Act: Levels of The Mine Act: Levels of EnforcementEnforcement

• Section 104(a)Section 104(a)• Section 104(b)Section 104(b)• Section 104(d)Section 104(d)• Section 104(e)Section 104(e)• Section 104(g)Section 104(g)

• Section 107(a)Section 107(a)

• Section 105(c )Section 105(c )

• Section 110(a)Section 110(a)• Section 110(b)Section 110(b)• Section 110(c )Section 110(c )• Section 110(d)Section 110(d)

Section 104Section 104

(a)(a) Citations issued for violationsCitations issued for violations

(b)(b) Non-compliance ordersNon-compliance orders

(d)(1)(d)(1) Unwarrantable failure citation/orderUnwarrantable failure citation/order

(d)(2)(d)(2) Unwarrantable failure order(s)Unwarrantable failure order(s)

(e)(e) Pattern of violationsPattern of violations

(g)(1)(g)(1) Untrained miner(s) withdrawn Untrained miner(s) withdrawn

(g)(2)(g)(2) No discharge, discrimination, or loss No discharge, discrimination, or loss

of pay if withdrawn under (g)(1).of pay if withdrawn under (g)(1).

Section 107(a)Section 107(a)

Imminent danger orderImminent danger order

Too hazardous to continue operations Too hazardous to continue operations without the possibility of something without the possibility of something occurring occurring

*Requires immediate action*Requires immediate action

Significant And Substantial (S&S)Significant And Substantial (S&S)

Q:Q: What makes a violation S&S? What makes a violation S&S?

A:A: Gravity (See Section 10 of citation)Gravity (See Section 10 of citation) Likelihood: If a condition is left unabated, what is Likelihood: If a condition is left unabated, what is

the likelihood it would result in an injury?the likelihood it would result in an injury? Severity: If there were an injury, how serious Severity: If there were an injury, how serious

would it be?would it be?

For a citation to be S&S, an injury must be For a citation to be S&S, an injury must be reasonably likely to occurreasonably likely to occur ANDAND expected to result expected to result in at leastin at least lost workdays or restricted duty. lost workdays or restricted duty.

Mine Citation/Order Form

How Is Operator Negligence How Is Operator Negligence DeterminedDetermined??

Negligence is failure to exercise the Negligence is failure to exercise the degree of care or diligence you would degree of care or diligence you would reasonably expect from a prudent person reasonably expect from a prudent person in a position of responsibility.in a position of responsibility.

Negligence can be evaluated as: None, Negligence can be evaluated as: None, Low, Moderate, High and Reckless Low, Moderate, High and Reckless DisregardDisregard

Unwarrantable FailureUnwarrantable Failure

• Unwarrantability is a Unwarrantability is a negligence negligence determination.determination.

• Factors caused by a Factors caused by a high high degree of degree of negligence or negligence or reckless disregardreckless disregard are are evaluated by the inspector for an evaluated by the inspector for an unwarrantable failure to comply unwarrantable failure to comply determinationdetermination..

Factors Addressed By InspectorFactors Addressed By Inspector

• Amount of time violative condition existed.Amount of time violative condition existed.• The hazard is serious warranting The hazard is serious warranting

increased attention by the operator.increased attention by the operator.• The violation is repetitious of a previous The violation is repetitious of a previous

violation.violation.• The violation was the result of deliberate The violation was the result of deliberate

activity; or, the operator had knowledge or activity; or, the operator had knowledge or reason to know.reason to know.

SectionSection 105(c)105(c)

105(c)105(c) -- No discrimination against -- No discrimination against miners for protected activity.miners for protected activity.

AssessmentsAssessments

Single PenaltySingle Penalty Regular FormulaRegular Formula SpecialSpecial

Types

Assessed Violations by Type of Assessment

2%

37%

61%

Single Penalty

RegularAssessment

SpecialAssessment

Single Penalty AssessmentSingle Penalty Assessment

Computer-generatedComputer-generated Flat $55Flat $55 104(a) non-S&S Citations That 104(a) non-S&S Citations That

Are Timely AbatedAre Timely Abated No Excessive History of No Excessive History of

ViolationsViolations

Note: Timely Abated Means:“Terminated Within the Time Set by the Issuing Inspector”

X $60

Regular AssessmentRegular Assessment Computer-generatedComputer-generated Orders and 104(d) CitationsOrders and 104(d) Citations 104(a) S&S Citations104(a) S&S Citations 104(a) non-S&S Citations Not 104(a) non-S&S Citations Not

Qualifying for Single PenaltyQualifying for Single Penalty If Timely Abated - 30% Reduction in If Timely Abated - 30% Reduction in

PenaltyPenalty If Not Timely Abated - 10 Additional If Not Timely Abated - 10 Additional

Penalty PointsPenalty Points Range $66 - $55,000Range $66 - $55,000

X X X $60,000

Points Penalty ($)

20 or fewer . . . . . . . . . . . . . . . . . . 66

30. . . . . . . . . . . . . . . . . . . . . . . . . . 149

40. . . . . . . . . . . . . . . . . . . . . . . . . . 297

50. . . . . . . . . . . . . . . . . . . . . . . . . . 796

60. . . . . . . . . . . . . . . . . . . . . . . . . . 2,796

70. . . . . . . . . . . . . . . . . . . . . . . . . . 5,500

80. . . . . . . . . . . . . . . . . . . . . . . . . . 9,350

Points Penalty($)

81. . . . . . . . . . . . . . . . . . . . . . . . . . 10,45082. . . . . . . . . . . . . . . . . . . . . . . . . . 11,55083. . . . . . . . . . . . . . . . . . . . . . . . . . 12,65084. . . . . . . . . . . . . . . . . . . . . . . . . . 13,75085. . . . . . . . . . . . . . . . . . . . . . . . . . 14,85086. . . . . . . . . . . . . . . . . . . . . . . . . . 16,50087. . . . . . . . . . . . . . . . . . . . . . . . . . 18,70088. . . . . . . . . . . . . . . . . . . . . . . . . . 20,90089. . . . . . . . . . . . . . . . . . . . . . . . . . 23,10090. . . . . . . . . . . . . . . . . . . . . . . . . . 25,30091. . . . . . . . . . . . . . . . . . . . . . . . . . 27,50092. . . . . . . . . . . . . . . . . . . . . . . . . . 30,25093. . . . . . . . . . . . . . . . . . . . . . . . . . 33,00094. . . . . . . . . . . . . . . . . . . . . . . . . . 35,75095. . . . . . . . . . . . . . . . . . . . . . . . . . 38,50096. . . . . . . . . . . . . . . . . . . . . . . . . . 41,25097. . . . . . . . . . . . . . . . . . . . . . . . . . 44,00098. . . . . . . . . . . . . . . . . . . . . . . . . . 46,75099. . . . . . . . . . . . . . . . . . . . . . . . . . 49,500100 . . . . . . . . . . . . . . . . . . . . . . . . . 55,000

Penalty Conversion Table

Special AssessmentSpecial Assessment

No Fixed FormulaNo Fixed Formula Serious ViolationsSerious Violations Use Six Assessment CriteriaUse Six Assessment Criteria

1 History of Previous ViolationsHistory of Previous Violations2 Size of Operator’s BusinessSize of Operator’s Business3 Negligence of the OperatorNegligence of the Operator4 Gravity of the ViolationGravity of the Violation5 Good FaithGood Faith6 Ability to Continue in BusinessAbility to Continue in Business

Violations Considered for Special Violations Considered for Special AssessmentAssessment

fatalities and serious injuriesfatalities and serious injuries unwarrantable failureunwarrantable failure operating in defiance of a closure orderoperating in defiance of a closure order denial of right of entry denial of right of entry individuals liable under Section 110c of individuals liable under Section 110c of

the Mine Actthe Mine Act imminent dangerimminent danger acts of discrimination under Section acts of discrimination under Section

105c of the Mine Act105c of the Mine Act extraordinarily high negligence, gravity, extraordinarily high negligence, gravity,

or other unique aggravating or other unique aggravating circumstancescircumstances

Examples for Examples for DiscussionDiscussion

Example: Guard Missing on Example: Guard Missing on Conveyor Belt DriveConveyor Belt Drive

Belt Not RunningBelt Not Running No One Working in AreaNo One Working in Area Violation Immediately CorrectedViolation Immediately Corrected 104(a) Non-S&S Citation, Timely Abated104(a) Non-S&S Citation, Timely Abated Single Penalty AssessmentSingle Penalty Assessment Without Timely Abatement, Regular AssessmentWithout Timely Abatement, Regular Assessment


Belt Not RunningBelt Not Running No One Working in AreaNo One Working in Area Violation Immediately CorrectedViolation Immediately Corrected 104(a) Non-S&S Citation, Timely Abated104(a) Non-S&S Citation, Timely Abated No Excessive History of ViolationsNo Excessive History of Violations Single Penalty AssessmentSingle Penalty Assessment$60


Belt Not RunningBelt Not Running No One Working in AreaNo One Working in Area 104(a) Non-S&S Citation 104(a) Non-S&S Citation Without Timely Abatement (104b Order)Without Timely Abatement (104b Order)

= Regular Assessment= Regular Assessment$1,247


Belt Not RunningBelt Not Running No One Working in AreaNo One Working in Area 104(a) Non-S&S Citation, Timely 104(a) Non-S&S Citation, Timely

AbatedAbated Excessive History of ViolationsExcessive History of Violations$872

Example 1 - 104(a) Non - S&S Citation

Timely Abated Not Timely Abated Timely Abated But

Criterion Penalty Points Penalty Points With Excessive HistoryMine Size

Co. Size

History

Likelihood

Severity

# Persons

Negligence

Good Faith

Total

Penalty

30% Red.

Final Penalty

5

3

10

2

7

1

15

0

NA

$60

NA

$60

5

3

10

2

7

1

15

10

53

$1,247

None

$1,247

5

3

20

2

7

1

15

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53

$1,247

-$375

$872


Belt RunningBelt Running Employee Shoveling Employee Shoveling

Beneath Belt DriveBeneath Belt Drive 104(a) S&S Citation, 104(a) S&S Citation,

Timely AbatedTimely Abated Regular Regular

Assessment, 30% Assessment, 30% Good Faith Good Faith ReductionReduction



Beneath Belt DriveBeneath Belt Drive 104(a) S&S Citation, 104(a) S&S Citation,

Timely AbatedTimely Abated Regular Regular

Assessment, 30% Assessment, 30% Good Faith Good Faith ReductionReduction

$317



Beneath Belt DriveBeneath Belt Drive 104(a) S&S Citation104(a) S&S Citation Without Timely Without Timely

Abatement (104b Abatement (104b Order) = Regular Order) = Regular Assessment; No 30% Assessment; No 30% Reduction; Additional Reduction; Additional 10 Penalty Points10 Penalty Points

$1,815

Example 2 - 104(a) - S&S Citation Regular Assessment

Timely Abated Not Timely Abated

Criterion Penalty Points Penalty Points

Mine Size

Co. Size

History

Likelihood

Severity

# Persons

Negligence

Good Faith

Total

Penalty

30% Red.

Final Penalty

5

3

10

5

7

1

15

0

46

$453

$136

$317

5

3

10

5

7

1

15

10

56

$1,815

None

$1,815

Average Regular AssessmentsAverage Regular Assessments

With 30% Reduction - $255With 30% Reduction - $255

Without 30% Reduction - $587Without 30% Reduction - $587


Belt RunningBelt Running Employee ShovelingEmployee Shoveling Foreman Present, Directing WorkForeman Present, Directing Work 104(d) Unwarrantable Failure 104(d) Unwarrantable Failure

Citation/OrderCitation/Order Regular or Special AssessmentRegular or Special Assessment Possible 110 ActionPossible 110 Action


Belt RunningBelt Running Employee ShovelingEmployee Shoveling Foreman Present, Directing WorkForeman Present, Directing Work 104(d) Unwarrantable Failure 104(d) Unwarrantable Failure CitationCitation Timely AbatementTimely Abatement Regular AssessmentRegular Assessment Possible 110 ActionPossible 110 Action

$655


Belt RunningBelt Running Employee ShovelingEmployee Shoveling Foreman Present, Directing WorkForeman Present, Directing Work 104(d) Unwarrantable Failure 104(d) Unwarrantable Failure OrderOrder Regular AssessmentRegular Assessment Possible 110 ActionPossible 110 Action

$936

Example 3 - 104(d) Citation/Order Regular Assessment

Citation Citation

Timely Abated Not Timely AbatedOrder

Criterion Penalty Points Penalty PointsPenalty PointsMine Size

Co. Size

History

Likelihood

Severity

# Persons

Negligence

Good Faith

Total

Penalty

30% Red.

Final Penalty

5

3

10

5

7

1

20

0

51

$936

-$281

$655

5

3

10

5

7

1

20

10

61

$3,098

None

$3,098

5

3

20

5

7

1

20

NA

51

$936

NA

$936


Belt RunningBelt Running Employee ShovelingEmployee Shoveling Foreman Present, Directing WorkForeman Present, Directing Work 104(d) Unwarrantable Failure Citation or 104(d) Unwarrantable Failure Citation or

OrderOrder SpecialSpecial Assessment Assessment Possible 110 ActionPossible 110 Action

Average

$1,500


Belt RunningBelt Running Employee ShovelingEmployee Shoveling Foreman Present, Directing WorkForeman Present, Directing Work 104(d) Unwarrantable Failure Citation or 104(d) Unwarrantable Failure Citation or

OrderOrder SpecialSpecial Assessment Assessment Possible 110 ActionPossible 110 Action

$31,000+

Average Special AssessmentsAverage Special Assessments Non-accident-related - $1,500Non-accident-related - $1,500 Accident-related - $31,000Accident-related - $31,000 Director, Officer, Agent - Director, Officer, Agent -

$957$957 Miner Smoking - $181Miner Smoking - $181 Discrimination - $1,813Discrimination - $1,813

Points to RememberPoints to Remember

Inspections Are Mandatory by LawInspections Are Mandatory by Law Violations Must Be CitedViolations Must Be Cited Cited Violations Receive a PenaltyCited Violations Receive a Penalty Purpose of the Penalty is to Purpose of the Penalty is to

Encourage Safety and HealthEncourage Safety and Health

Purpose of Section 110Purpose of Section 110

Congress recognized that strict civil and Congress recognized that strict civil and criminal penalties for violations were criminal penalties for violations were necessary to ensure that the health and necessary to ensure that the health and safety standards would be met; therefore, safety standards would be met; therefore, congress expressly imposed civil and congress expressly imposed civil and criminal penalties on both the company criminal penalties on both the company and and AGENTSAGENTS of corporate mine operators. of corporate mine operators.

Section 110Section 110(a)(a) - Assess civil penalties for violations - Assess civil penalties for violations

from $60 to $60,000from $60 to $60,000

(b)(b) - Penalty of up to $6,000 per day for - Penalty of up to $6,000 per day for

failure to complyfailure to comply

Section 110Section 110 (Con’t)(Con’t)

(c)(c) - - Knowing violationKnowing violation: Corporate agent is : Corporate agent is assessed a civil penalty assessed a civil penalty

(d)(d) - - Willful violationWillful violation: Any agent who : Any agent who willfully violates and is convicted (criminal) willfully violates and is convicted (criminal) can be fined and/or imprisoned.can be fined and/or imprisoned.

Section 110Section 110 ( (Con’tCon’t))

““Knowingly”Knowingly” has been defined as: has been defined as:

Knowing or having reason to know. A person Knowing or having reason to know. A person has reason to know when he has such has reason to know when he has such information as would lead a person exercising information as would lead a person exercising reasonable care to acquire knowledge of the reasonable care to acquire knowledge of the fact in question or to infer its existence. fact in question or to infer its existence. MSHA must show a preponderance of MSHA must show a preponderance of evidence existed.evidence existed.

Section 110 Section 110 (Con’t)(Con’t)

““Willfully”Willfully” has been defined as: has been defined as:

Done knowingly and purposely by a Done knowingly and purposely by a [person] who, having a free will and [person] who, having a free will and choice, either intentionally disobeys choice, either intentionally disobeys the standard or the standard or recklessly recklessly disregardsdisregards its requirements its requirements..

Section 110Section 110 (Con’t)(Con’t)

110(e)110(e) - Fine, imprisonment, or both for - Fine, imprisonment, or both for any personany person notifying an operator of impending inspectionnotifying an operator of impending inspection

110(f)110(f) - Fine, imprisonment, or both for - Fine, imprisonment, or both for anyoneanyone convicted of knowingly making convicted of knowingly making false statements, false statements, representation, or certification in any application, representation, or certification in any application, record, report, plan or other document filed or record, report, plan or other document filed or required to be maintained by the Actrequired to be maintained by the Act..

Section 110Section 110 ( (Con’tCon’t))

110(g)110(g) - Miners can be fined $275 - Miners can be fined $275 personally for violating smoking related personally for violating smoking related standards.standards.

110(h)110(h) - Fine, imprisonment, or both for - Fine, imprisonment, or both for anyoneanyone convicted of knowingly convicted of knowingly misrepresenting equipment, components, misrepresenting equipment, components, or accessories as being in compliance.or accessories as being in compliance.

Violations Reviewed For Violations Reviewed For Possible 110 ActionPossible 110 Action

107(a)107(a) order with 104(a) citation & high order with 104(a) citation & high negligencenegligence

104(d)104(d) citations/orders which are S&S and citations/orders which are S&S and high negligencehigh negligence

Operator working in the face of an order.Operator working in the face of an order.

District manager prerogativeDistrict manager prerogative

Special InvestigationSpecial Investigation

If a determination is made to investigate a If a determination is made to investigate a violation, a case number will be assigned violation, a case number will be assigned and it will be assigned to a special and it will be assigned to a special investigator. investigator.

The investigator will conduct thorough The investigator will conduct thorough interviews with employees and members interviews with employees and members of management to determine if there has of management to determine if there has been a knowing and/or willful violation.been a knowing and/or willful violation.

The EndThe End

leadership responsibilities responsibilities under the federal mine safety and health act of 1977...

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