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Leadership Responsibilities. Responsibilities under the Federal Mine Safety and Health Act of 1977 Larry Miller & Leland Payne EFS Training Specialist. Course Topics. Definitions Sections of the Mine Act Significant and Substantial (S&S) Negligence Unwarrantable failure

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Leadership responsibilities l.jpg
Leadership Responsibilities

Responsibilities under the Federal Mine Safety and Health Act of 1977

Larry Miller & Leland Payne

EFS Training Specialist


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Course Topics

  • Definitions

  • Sections of the Mine Act

  • Significant and Substantial (S&S)

  • Negligence

  • Unwarrantable failure

  • Assessments

  • Company/agent violations

  • Special investigations

  • Penalties


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HISTORY

In the Mine Act of 1977, Congress declared:

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


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HISTORY

In the Mine Act of 1977, Congress declared:

  • There was an urgent need to improve mining conditions.


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HISTORY

In the Mine Act of 1977, Congress declared:

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


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Coal Fatalities 1960 to 2000

1969

1970

1980

1990

2000


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M/NM Fatalities 1960 to 2000

1977

1970

1980

1990

2000


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WHO IS RESPONSIBLE?

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


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Federal Mine Safety and Health Act of 1977Definitions

Miner -any individual who works in a mine


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Federal Mine Safety and Health Act of 1977Definitions

Operator - any owner, lessee

or other person who

operates, controls or

supervises a mine.


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Federal Mine Safety and Health Act of 1977Definitions

OR

Any independent contractor performing services or construction at a mine.

Contractors account for 30-35% of all mining fatalities.


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INDEPENDENT CONTRACTORS

  • Must comply fully with the Mine Act

  • Will be cited for violations.

  • Mine operator may also be cited for contractor violations

  • Mine operator responsible for ensuring contractor is aware of MSHA regulations.

    • Specify requirements in contracts to control contractor behavior

    • Monitor contractor activities


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What is an Agent?

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


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What are some leadership responsibilities of supervisors?

  • Act like a supervisor in the presence of other employees and set a good example.


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What are some leadership responsibilities of supervisors?

  • Wear protective equipment when at the mine site (shoes, glasses, hard hat, etc.)


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What are some leadership responsibilities of supervisors?

  • Make certain employees are properly trained in their work duties, including hazard recognition, safe work practices, safe equipment operation, etc.


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What are some leadership responsibilities of supervisors?

  • Have unsafe conditions corrected ASAP


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What are some leadership responsibilities of supervisors?

  • Be familiar with 30 CFR and the Mine Act


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Training responsibilities

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


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Training responsibilities

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


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Training responsibilities

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


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Training responsibilities

  • Always act in ‘good faith.’


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Supervisory responsibilities during a fatal investigation

  • Call for emergency assistance; then call superiors

  • Call MSHA and State agency

  • Secure the scene of the accident to allow fatal investigators to conduct investigation

  • Maintain secured area until released by MSHA

    Note: Management must also conduct an investigation


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The Mine Act: Levels of Enforcement

Section 103

103(a) -- Mandatory minimum number of inspections per year (4’s and 2’s)

103(d) -- Accident/Injury investigation & reporting (30 CFR Part 50).

103(f) -- Right of the miner to have representation on an inspection (30 CFR Part 40).

103(g) -- Right to request an immediate inspection (30 CFR Part 43).


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Section 104(a)

Section 104(b)

Section 104(d)

Section 104(e)

Section 104(g)

Section 107(a)

Section 105(c )

Section 110(a)

Section 110(b)

Section 110(c )

Section 110(d)

The Mine Act: Levels of Enforcement


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Section 104

(a) Citations issued for violations

(b) Non-compliance orders

(d)(1) Unwarrantable failure citation/order

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

(e) Pattern of violations

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

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

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


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Section 107(a)

Imminent danger order

Too hazardous to continue operations without the possibility of something occurring

*Requires immediate action


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Significant And Substantial (S&S)

Q: What makes a violation S&S?

A:Gravity (See Section 10 of citation)

  • Likelihood: If a condition is left unabated, what is the likelihood it would result in an injury?

  • Severity: If there were an injury, how serious would it be?

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



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How Is Operator Negligence Determined?

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

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


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Unwarrantable Failure

  • Unwarrantability is a negligence determination.

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


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Factors Addressed By Inspector

  • Amount of time violative condition existed.

  • The hazard is serious warranting increased attention by the operator.

  • The violation is repetitious of a previous violation.

  • The violation was the result of deliberate activity; or, the operator had knowledge or reason to know.


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Section105(c)

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


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Assessments

  • Single Penalty

  • Regular Formula

  • Special

Types


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Single Penalty Assessment

  • Computer-generated

  • Flat $55

  • 104(a) non-S&S Citations That Are Timely Abated

  • No Excessive History of Violations

X $60

Note: Timely Abated Means:

“Terminated Within the Time Set

by the Issuing Inspector”


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Regular Assessment

  • Computer-generated

  • Orders and 104(d) Citations

  • 104(a) S&S Citations

  • 104(a) non-S&S Citations Not Qualifying for Single Penalty

  • If Timely Abated - 30% Reduction in Penalty

  • If Not Timely Abated - 10 Additional Penalty Points

  • Range $66 - $55,000

X X X $60,000


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Penalty Conversion Table

Points Penalty ($)

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

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

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

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

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

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

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

Points Penalty($)

81. . . . . . . . . . . . . . . . . . . . . . . . . . 10,450

82. . . . . . . . . . . . . . . . . . . . . . . . . . 11,550

83. . . . . . . . . . . . . . . . . . . . . . . . . . 12,650

84. . . . . . . . . . . . . . . . . . . . . . . . . . 13,750

85. . . . . . . . . . . . . . . . . . . . . . . . . . 14,850

86. . . . . . . . . . . . . . . . . . . . . . . . . . 16,500

87. . . . . . . . . . . . . . . . . . . . . . . . . . 18,700

88. . . . . . . . . . . . . . . . . . . . . . . . . . 20,900

89. . . . . . . . . . . . . . . . . . . . . . . . . . 23,100

90. . . . . . . . . . . . . . . . . . . . . . . . . . 25,300

91. . . . . . . . . . . . . . . . . . . . . . . . . . 27,500

92. . . . . . . . . . . . . . . . . . . . . . . . . . 30,250

93. . . . . . . . . . . . . . . . . . . . . . . . . . 33,000

94. . . . . . . . . . . . . . . . . . . . . . . . . . 35,750

95. . . . . . . . . . . . . . . . . . . . . . . . . . 38,500

96. . . . . . . . . . . . . . . . . . . . . . . . . . 41,250

97. . . . . . . . . . . . . . . . . . . . . . . . . . 44,000

98. . . . . . . . . . . . . . . . . . . . . . . . . . 46,750

99. . . . . . . . . . . . . . . . . . . . . . . . . . 49,500

100 . . . . . . . . . . . . . . . . . . . . . . . . . 55,000


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Special Assessment

  • No Fixed Formula

  • Serious Violations

  • Use Six Assessment Criteria

    • History of Previous Violations

    • Size of Operator’s Business

    • Negligence of the Operator

    • Gravity of the Violation

    • Good Faith

    • Ability to Continue in Business


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Violations Considered for Special Assessment

  • fatalities and serious injuries

  • unwarrantable failure

  • operating in defiance of a closure order

  • denial of right of entry

  • individuals liable under Section 110c of the Mine Act

  • imminent danger

  • acts of discrimination under Section 105c of the Mine Act

  • extraordinarily high negligence, gravity, or other unique aggravating circumstances



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Example: Guard Missing on Conveyor Belt Drive

  • Belt Not Running

  • No One Working in Area

  • Violation Immediately Corrected

  • 104(a) Non-S&S Citation, Timely Abated

  • Single Penalty Assessment

  • Without Timely Abatement, Regular Assessment


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Not Running

  • No One Working in Area

  • Violation Immediately Corrected

  • 104(a) Non-S&S Citation, Timely Abated

  • No Excessive History of Violations

  • Single Penalty Assessment

$60


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Not Running

  • No One Working in Area

  • 104(a) Non-S&S Citation

  • Without Timely Abatement (104b Order) = Regular Assessment

$1,247


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Not Running

  • No One Working in Area

  • 104(a) Non-S&S Citation, Timely Abated

  • Excessive History of Violations

$872


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

Timely Abated Not Timely Abated Timely Abated But

CriterionPenalty PointsPenalty PointsWith Excessive History

Mine 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

0

53

$1,247

-$375

$872


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling Beneath Belt Drive

  • 104(a) S&S Citation, Timely Abated

  • Regular Assessment, 30% Good Faith Reduction


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling Beneath Belt Drive

  • 104(a) S&S Citation, Timely Abated

  • Regular Assessment, 30% Good Faith Reduction

$317


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling Beneath Belt Drive

  • 104(a) S&S Citation

  • Without Timely Abatement (104b Order) = Regular Assessment; No 30% Reduction; Additional 10 Penalty Points

$1,815


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

Timely Abated Not Timely Abated

CriterionPenalty PointsPenalty 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


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Average Regular Assessments

  • With 30% Reduction - $255

  • Without 30% Reduction - $587


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling

  • Foreman Present, Directing Work

  • 104(d) Unwarrantable Failure Citation/Order

  • Regular or Special Assessment

  • Possible 110 Action


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling

  • Foreman Present, Directing Work

  • 104(d) Unwarrantable Failure Citation

  • Timely Abatement

  • Regular Assessment

  • Possible 110 Action

$655


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling

  • Foreman Present, Directing Work

  • 104(d) Unwarrantable Failure Order

  • Regular Assessment

  • Possible 110 Action

$936


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

Citation Citation

Timely Abated Not Timely Abated Order

CriterionPenalty PointsPenalty PointsPenalty Points

Mine 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


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling

  • Foreman Present, Directing Work

  • 104(d) Unwarrantable Failure Citation or Order

  • Special Assessment

  • Possible 110 Action

Average

$1,500


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Example: Guard Missing on Conveyor Belt Drive

  • Belt Running

  • Employee Shoveling

  • Foreman Present, Directing Work

  • 104(d) Unwarrantable Failure Citation or Order

  • Special Assessment

  • Possible 110 Action

$31,000+


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Average Special Assessments

  • Non-accident-related - $1,500

  • Accident-related - $31,000

  • Director, Officer, Agent - $957

  • Miner Smoking - $181

  • Discrimination - $1,813


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Points to Remember

  • Inspections Are Mandatory by Law

  • Violations Must Be Cited

  • Cited Violations Receive a Penalty

  • Purpose of the Penalty is to Encourage Safety and Health


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Purpose of Section 110

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


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Section 110

(a) - Assess civil penalties for violations

from $60 to $60,000

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

failure to comply


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Section 110(Con’t)

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

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


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Section 110 (Con’t)

“Knowingly” has been defined as:

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


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Section 110 (Con’t)

“Willfully” has been defined as:

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


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Section 110(Con’t)

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

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


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Section 110 (Con’t)

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

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


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Violations Reviewed For Possible 110 Action

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

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

Operator working in the face of an order.

District manager prerogative


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Special Investigation

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

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