Leadership Responsibilities Responsibilities under the Federal Mine Safety and Health Act of 1977 Larry Miller & Leland Payne EFS Training Specialist EFS Training Specialist

Course 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

HISTORY In the Mine Act of 1977, Congress declared: The first priority of the mining industry is the health and safety of the miner. The first priority of the mining industry is the health and safety of the miner.

HISTORY In the Mine Act of 1977, Congress declared: There was an urgent need to improve mining conditions. There was an urgent need to improve mining conditions.

HISTORY In the Mine Act of 1977, Congress declared: Mandatory standards be established requiring mine operators and miners to comply. Mandatory standards be established requiring mine operators and miners to comply.

Coal Fatalities 1960 to 2000

M/NM Fatalities 1960 to 2000

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. 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.

Federal Mine Safety and Health Act of 1977 Definitions Miner - any individual who works in a mine

Federal Mine Safety and Health Act of 1977 Definitions Operator - any owner, lessee or other person who operates, controls or supervises a mine.

Federal Mine Safety and Health Act of 1977 Definitions OR Any independent contractor performing services or construction at a mine. Contractors account for 30-35% of all mining fatalities.

INDEPENDENT CONTRACTORS Must comply fully with the Mine Act Must comply fully with the Mine Act Will be cited for violations. Will be cited for violations. Mine operator may also be cited for contractor violations Mine operator may also be cited for contractor violations Mine operator responsible for ensuring contractor is aware of MSHA regulations. Mine operator responsible for ensuring contractor is aware of MSHA regulations. Specify requirements in contracts to control contractor behaviorSpecify requirements in contracts to control contractor behavior Monitor contractor activitiesMonitor contractor activities

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

What are some leadership responsibilities of supervisors? Act like a supervisor in the presence of other employees and set a good example. Act like a supervisor in the presence of other employees and set a good example.

What are some leadership responsibilities of supervisors? Wear protective equipment when at the mine site (shoes, glasses, hard hat, etc.) Wear protective equipment when at the mine site (shoes, glasses, hard hat, etc.)

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

What are some leadership responsibilities of supervisors? Have unsafe conditions corrected ASAP Have unsafe conditions corrected ASAP

What are some leadership responsibilities of supervisors? Be familiar with 30 CFR and the Mine Act Be familiar with 30 CFR and the Mine Act

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

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

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

Training responsibilities Always act in ‘good faith.’ Always act in ‘good faith.’

Supervisory responsibilities during a fatal investigation Call for emergency assistance; then call superiors Call for emergency assistance; then call superiors Call MSHA and State agency Call MSHA and State agency Secure the scene of the accident to allow fatal investigators to conduct investigation Secure the scene of the accident to allow fatal investigators to conduct investigation Maintain secured area until released by MSHA Maintain secured area until released by MSHA Note: Management must also conduct an investigation

form

The Mine Act: Levels of Enforcement Section (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).

The Mine Act: Levels of Enforcement 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 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). of pay if withdrawn under (g)(1).

Section 107(a) Imminent danger order Too hazardous to continue operations without the possibility of something occurring *Requires immediate action

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? 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? 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 occur AND expected to result in at least lost workdays or restricted duty.

Mine Citation/Order Form

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

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

Factors Addressed By Inspector Amount of time violative condition existed. Amount of time violative condition existed. The hazard is serious warranting increased attention by the operator. The hazard is serious warranting increased attention by the operator. The violation is repetitious of a previous violation. 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. The violation was the result of deliberate activity; or, the operator had knowledge or reason to know.

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

Assessments Single Penalty Single Penalty Regular Formula Regular Formula Special Special Types

Single Penalty Assessment Computer-generated Computer-generated Flat $55 Flat $55 104(a) non-S&S Citations That Are Timely Abated 104(a) non-S&S Citations That Are Timely Abated No Excessive History of Violations No Excessive History of Violations Note: Timely Abated Means: “Terminated Within the Time Set by the Issuing Inspector” X $60

Regular Assessment Computer-generated Computer-generated Orders and 104(d) Citations Orders and 104(d) Citations 104(a) S&S Citations 104(a) S&S Citations 104(a) non-S&S Citations Not Qualifying for Single Penalty 104(a) non-S&S Citations Not Qualifying for Single Penalty If Timely Abated - 30% Reduction in Penalty If Timely Abated - 30% Reduction in Penalty If Not Timely Abated - 10 Additional Penalty Points If Not Timely Abated - 10 Additional Penalty Points Range $66 - $55,000 Range $66 - $55,000 X X X $60,000

Points Penalty ($) 20 or fewer , , ,350 Points Penalty($) , , , , , , , , , , , , , , , , , , , ,000 Penalty Conversion Table

Special Assessment No Fixed Formula No Fixed Formula Serious Violations Serious Violations Use Six Assessment Criteria Use Six Assessment Criteria 1 History of Previous Violations 2 Size of Operator’s Business 3 Negligence of the Operator 4 Gravity of the Violation 5 Good Faith 6 Ability to Continue in Business

Violations Considered for Special Assessment fatalities and serious injuries fatalities and serious injuries unwarrantable failure unwarrantable failure operating in defiance of a closure order operating in defiance of a closure order denial of right of entry denial of right of entry individuals liable under Section 110c of the Mine Act individuals liable under Section 110c of the Mine Act imminent danger imminent danger acts of discrimination under Section 105c of the Mine Act acts of discrimination under Section 105c of the Mine Act extraordinarily high negligence, gravity, or other unique aggravating circumstances extraordinarily high negligence, gravity, or other unique aggravating circumstances

Examples for Discussion

Example: Guard Missing on Conveyor Belt Drive Belt Not Running Belt Not Running No One Working in Area No One Working in Area Violation Immediately Corrected Violation Immediately Corrected 104(a) Non-S&S Citation, Timely Abated 104(a) Non-S&S Citation, Timely Abated Single Penalty Assessment Single Penalty Assessment Without Timely Abatement, Regular Assessment Without Timely Abatement, Regular Assessment

Example: Guard Missing on Conveyor Belt Drive Belt Not Running Belt Not Running No One Working in Area No One Working in Area Violation Immediately Corrected Violation Immediately Corrected 104(a) Non-S&S Citation, Timely Abated 104(a) Non-S&S Citation, Timely Abated No Excessive History of Violations No Excessive History of Violations Single Penalty Assessment Single Penalty Assessment $60

Example: Guard Missing on Conveyor Belt Drive Belt Not Running Belt Not Running No One Working in Area No One Working in Area 104(a) Non-S&S Citation 104(a) Non-S&S Citation Without Timely Abatement (104b Order) = Regular Assessment Without Timely Abatement (104b Order) = Regular Assessment $1,247

Example: Guard Missing on Conveyor Belt Drive Belt Not Running Belt Not Running No One Working in Area No One Working in Area 104(a) Non-S&S Citation, Timely Abated 104(a) Non-S&S Citation, Timely Abated Excessive History of Violations Excessive History of Violations $872

Example (a) Non - S&S Citation Timely AbatedNot Timely AbatedTimely Abated But CriterionPenalty PointsPenalty PointsWith Excessive History Mine Size Co. Size History Likelihood Severity # Persons Negligence Good Faith Total Penalty 30% Red. Final Penalty NA $60 NA $ $1,247 None $1, $1,247 -$375 $872

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Beneath Belt Drive Employee Shoveling Beneath Belt Drive 104(a) S&S Citation, Timely Abated 104(a) S&S Citation, Timely Abated Regular Assessment, 30% Good Faith Reduction Regular Assessment, 30% Good Faith Reduction

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Beneath Belt Drive Employee Shoveling Beneath Belt Drive 104(a) S&S Citation, Timely Abated 104(a) S&S Citation, Timely Abated Regular Assessment, 30% Good Faith Reduction Regular Assessment, 30% Good Faith Reduction $317

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Beneath Belt Drive Employee Shoveling Beneath Belt Drive 104(a) S&S Citation 104(a) S&S Citation Without Timely Abatement (104b Order) = Regular Assessment; No 30% Reduction; Additional 10 Penalty Points Without Timely Abatement (104b Order) = Regular Assessment; No 30% Reduction; Additional 10 Penalty Points $1,815

Example (a) - S&S Citation Regular Assessment Timely AbatedNot Timely Abated CriterionPenalty PointsPenalty Points Mine Size Co. Size History Likelihood Severity # Persons Negligence Good Faith Total Penalty 30% Red. Final Penalty $453 $136 $ $1,815 None $1,815

Average Regular Assessments With 30% Reduction - $255 With 30% Reduction - $255 Without 30% Reduction - $587 Without 30% Reduction - $587

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Employee Shoveling Foreman Present, Directing Work Foreman Present, Directing Work 104(d) Unwarrantable Failure Citation/Order 104(d) Unwarrantable Failure Citation/Order Regular or Special Assessment Regular or Special Assessment Possible 110 Action Possible 110 Action

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Employee Shoveling Foreman Present, Directing Work Foreman Present, Directing Work 104(d) Unwarrantable Failure Citation 104(d) Unwarrantable Failure Citation Timely Abatement Timely Abatement Regular Assessment Regular Assessment Possible 110 Action Possible 110 Action $655

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Employee Shoveling Foreman Present, Directing Work Foreman Present, Directing Work 104(d) Unwarrantable Failure Order 104(d) Unwarrantable Failure Order Regular Assessment Regular Assessment Possible 110 Action Possible 110 Action $936

Example (d) Citation/Order Regular AssessmentCitation Timely AbatedNot Timely AbatedOrder CriterionPenalty PointsPenalty PointsPenalty Points Mine Size Co. Size History Likelihood Severity # Persons Negligence Good Faith Total Penalty 30% Red. Final Penalty $936 -$281 $ $3,098 None $3, NA 51 $936 NA $936

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Employee Shoveling Foreman Present, Directing Work Foreman Present, Directing Work 104(d) Unwarrantable Failure Citation or Order 104(d) Unwarrantable Failure Citation or Order Special Assessment Special Assessment Possible 110 Action Possible 110 Action Average $1,500

Example: Guard Missing on Conveyor Belt Drive Belt Running Belt Running Employee Shoveling Employee Shoveling Foreman Present, Directing Work Foreman Present, Directing Work 104(d) Unwarrantable Failure Citation or Order 104(d) Unwarrantable Failure Citation or Order Special Assessment Special Assessment Possible 110 Action Possible 110 Action $31,000+

Average Special Assessments Non-accident-related - $1,500 Non-accident-related - $1,500 Accident-related - $31,000 Accident-related - $31,000 Director, Officer, Agent - $957 Director, Officer, Agent - $957 Miner Smoking - $181 Miner Smoking - $181 Discrimination - $1,813 Discrimination - $1,813

Points to Remember Inspections Are Mandatory by Law Inspections Are Mandatory by Law Violations Must Be Cited Violations Must Be Cited Cited Violations Receive a Penalty Cited Violations Receive a Penalty Purpose of the Penalty is to Encourage Safety and Health Purpose of the Penalty is to Encourage Safety and Health

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. 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.

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

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.

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.

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

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.

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.

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

Special Assessment Review Form

Knowing and Willful Violation Review Form

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

The End