Supervisory Responsibility

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Supervisory Responsibility

• Responsibilities under the 1977 Federal Mine
  Safety and Health Act

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Congress Declared

• First priority of the mining industry is the
  health and safety of the miner.
• Improve mining conditions.
• Establish mandatory standards requiring mine
  operators and miners to comply.
• Eliminate serious injury and death in the mining
  industry.

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Federal Mine Safety and Health Act of 1977
Definitions

• Miner - any individual who works in a mine.
• Operator - any owner, lessee or other person who
  operates, controls or supervises a mine, OR
• Any independent contractor performing services or
  construction at a mine. Contractors account for
  30-35 of all mining fatalities.

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Contractor Responsibilities

• Must comply with the Mine Act.
• Will be issued citations for violations of
  mandatory health and safety standards.
• Must ensure the actions of their employees do not
  create hazards for the mine operators employees
  as well as their own employees.
• Monitor their employees and their activities.

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Operators Responsibilities Regarding Contractors

• Specify rigid requirements in contracts with
  contractors to control the contractors behavior.
• Monitor the contractors activities while on
  operators property.
• Ensuring contractor is aware of and enforces
  MSHAs regulations.
• May also receive citations/orders for contractor
  violations.

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What Is An Agent

• ANY person charged with responsibility for the
  operator of all or part of a mine

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• Are you a supervisor, a leadman, foreman,
  superintendent, etc.?
• If yes to any of the above, you are an AGENT.
  Are you aware of your responsibilities under the
  mine act?
• Are you aware of the potential consequences of
  ignoring them?
• Listen up!!!

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AN ACTLevels of Enforcement

• Section 103
• A) mandatory minimum of 4 2 inspections per
  year.
• D) all accidents investigated by operator.
• F) right of the miner to have representation on
  an inspection.
• G) right to request an immediate inspection.

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• Section 104
• (A) - citations shall be issued for
  violations
• (B) - non-compliance orders
• (D)(1) - unwarrantable failure citation
• (D)(1) - unwarrantable failure order(s)
• (D)(2) - unwarrantable failure order(s)
• (G)(1) - untrained miner withdrawn from the
  mine.
• (G)(2) - no discrimination or loss of pay
  because of withdrawal.

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Significant And Substantial (SS)

• What makes a violation SS?
• Gravity (section 10 of citation/order)
• If a condition is left unabated, what is the
  likelihood it would result in an injury, and
• If there was an injury, how serious would it be?
• For a violation to be SS, there must be a
  reasonable likelihood that an injury will occur
  and the injury would result in lost workdays or
  restricted duty.

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SS Defined

• A violation is of such nature as could
  significantly and substantially contribute to the
  cause and effect of a mine safety and health
  hazard ifbased upon thefacts surrounding that
  violation, there exists a reasonable likelihood
  that the hazard contributed to will result in an
  injury or illness of a reasonably serious nature.

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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 personin a position of
  responsibility.
• There are some types of violative conditions that
  are more hazardous than others and require a
  higher degree of care
• So..

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• No negligence - operator exercised diligence and
  could not have known of the violative condition
  or practice,
• Low neg - operator knew or should have known, but
  there were considerable mitigating circumstances.
• Moderate neg - knew or should have known, but
  there was some mitigation.
• High neg - knew or should have known with no
  mitigation
• Reckless disregard - operator displayed conduct
  showing absence of even the slightest degree of
  care.

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Unwarrantable Failure

• Unwarrantability is a negligence determination.
• Factors caused by a high degree of negligence or
  reckless disregard should be evaluated for an
  unwarrantable failure to comply.

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Factors Address By Inspector

• Amount of time violative condition existed.
• Hazard was serious warranting increased attention
  by the operator.
• Violation was repetitious of a previous
  violation.
• Violation was the result of deliberate activity,
  or the operator had knowledge or reason to know.

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Emery Mining 1987

• The commission changed the negligence test from
  the Ziegler knew or should have known to one
  that requires aggravated conduct which is more
  than ordinary negligence.

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Commission Definition

• Unwarrantable is defined as not justifiable,
  inexcusable.
• Conduct that is not justifiable and is
  inexcusable is the result of more than
• Inadvertence, thoughtlessness, or inattention.
• Failure is defined as neglect of an assigned,
  expected, or appropriate action.

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Section 107(a)

• Imminent danger order
• Too hazardous to continue operations without
  the possibility of something occurring and,
• Requires immediate action

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SECTION 105(a)

• This section gives MSHA the ability to assess a
  proposed penalty for violations.

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Penalties

• Fines range from 55 to 55,000 for violations of
  safety and health standards.
• Smoking violations - 275
• Working in the face of order - 5,500 per day.

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Penalties (Cont)

• Minimum penalty 55 for non SS citation
• Assessment for SS violations determined by
• Gravity (likelihood and severity)
• Negligence
• History of violations
• Size of company
• Operators good faith at abatement
• Final assessment based on ability to pay.

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Purpose Of Section 110

• In enacting the MSHA ACT, congress recognized
  that strict civil and criminal penalties for
  violations were necessary to ensure that the
  health and safety standards would be
  mettherefore, congress expressly imposed civil
  and criminal penalties on both the mine operator
  and AGENTS of corporate mine operators. This is
  the highest level of enforcement action.

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110 (c) - CIVIL

• If a corporate operator violates a mandatory
  standard or knowingly fails to comply with any
  order.
• Any director, officer, or agent who knowingly
  authorized, ordered, or carried out such
  violation, shall be subject to civil penalties,
  fines and imprisonment as in 110(a) and (d)
• (55,000/vio or 250,000 1yr in prison or both)

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SECTION 110(c)

• In reference to section 110(c), 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. A civil
  penalty may be proposed against an officer,
  director or agent of a corporation.

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SECTION 110(d)

• In reference to 110(d) of the act, 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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• Government must establish beyond a reasonable
  doubt that ANY operator willfully violated any
  mandatory health or safety standard or other
  provision of the act.
• The fourth circuit court of appeals has defined
  reckless disregard as
• The closing of the eyes to OR deliberate
  indifference toward the requirements of a
  mandatory safety standard, which standard
  defendant should have known and had reason to
  know at the time of the violation.

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Who Can Be Charged??

• A few examples are
• Supervisors/foremen/leadmen
• Superintendents
• Managers
• Engineers
• Owners/partners
• Manufacturers
• Vendors
• Contractors

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Other Section 110 Violations

• 110(e) - any person notifying an operator of
  impending inspection
• 110(f) - false statement, representation, or
  certification in any application, record, report,
  plan or other document filed or required to be
  maintained by the ACT.
• (Includes falsification of a 5000-23 training
  certificate.)

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SECTION 110(f)

• This section makes it a felony to knowingly make
  any false statement, representation, or
  certification in any application, record, report,
  plan, or other document filed or required to be
  maintained under the mine act. The penalty for a
  violation of this provision is a fine of up to
  250,000 and not more than five years in prison.

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• This provision applies to ANYONE.
• Whoever makes a false statement - Person making
  the false statement does not have to be an
  officer, agent, director, operator, miner, or
  even an employee at the mine.
• Typically arises in the context of falsified
  training certificates, where the trainer
  certifies proper training has been given, when in
  fact, it has not (Part 46 Part 48)

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110 VIOLATIONS (Cont)

• 110(g) - miner willfully smoking or carrying
  smoking materials.
• 110(h) knowingly distributes, sells, offers,
  induces, or delivers in commerce any equipment
  for use in a mine, including components and
  accessories, which is represented as complying
  with the ACT but does not.

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Violations Reviewed For Possible 110 Action

• 107(a) order with 104(a) citation
• condition or practice in a mine which could
  reasonably be expected to cause death or serious
  injury before it can be abated.)
• 104(d) citations or orders with a high degree of
  negligence and evaluated as SS (high degree of
  risk).

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REVIEW (Cont)

• Operator working against an order.
• District manager prerogative
• The district manager has authority to open an
  investigation into anything he/she deems
  necessary.

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Factors To Consider For Further 110 Action

• Was there a violation of a mandatory, health and
  safety standard and was it properly cited
• Was there a high degree of risk to the health
  and/or safety of the miner
• Did the operator or agent have knowledge or
  reason to know about the facts or conditions of
  the violation.

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Who Does The Reviews

• INSPECTOR/SUPERVISOR
• inspector completes possible knowing/willful
  review form.
• SUPERVISORY SPECIAL INVESTIGATOR
• researches, makes recommendations.
• ASSISTANT DISTRICT MANAGER
• reviews and agrees or disagrees.
• DISTRICT MANAGER
• makes final decision whether to investigate or
  not.

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Special Investigation

• If a determination is made to investigate, the
  case 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 violation of
  section 110(c) or 110(d).

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After The Investigation

• - After investigation, writes report of facts and
  recommends to district manager, knowing, willful,
  or no further action.
• - Case forward to headquarters where it is
  reviewed.
• - Case forward to MSHA solicitors.
• - Solicitors complete legal analysis and make
  recommendation to administrator.

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• - Administrator finalizes review and district
  instructed to hold health and safety conference
  or instructs appropriate officials to make
  referral to DOJ.
• - District manager conducts health and safety
  conference with person charged.
• - District manager makes decision and prepares
  final letter of action to be sent to MSHA
  assessments group.
• - Assessments sends fine to agent/agents.

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Avoiding Investigation

• Educate all levels of management of their
  responsibilities.
• Train everyone in hazard recognition.
• Establish procedures for correcting hazards.
• Know the law, regulations, and your rights.

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Two Important RegulationsMetal/Nonmetal

• 30 CFR 56.14100 -
• (a) equipment checks
• (b) correcting defects
• (c) take defective equip out of service
• (d) record the defects
• 30 CFR 56.18002 -
• (a) competent person examines workplaces for
  safety hazards
• (b) record examinations
• (c) imminent dangers noted by person checking for
  hazards shall be acted on by operator and
  withdraw persons until corrected.

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SECTION 105(c) MINERS RIGHTS

• What is protected activity?
• Rights afforded to the miners by the mine safety
  and health act.
• When a miner is treated adversely for engaging in
  a protected activity..
• The miner has the right to file a discrimination
  complaint with MSHA.

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Protected Activities

• Include but not limited to
• Represented on federal inspections
• File or make a complaint of an alleged danger or
  safety or health violation.
• Institute any proceeding under the act (e.g.,
  Filing a complaint pursuant to section 111)
• Refuse to work in unsafe or unhealthy conditions
  (good faith belief)
• Enforcement of safety training of section 104(g)
  and section 115 of the mine act.

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Discriminatory Acts

• Discharge or termination
• Laying off
• Demotion
• Refusal of employment
• Reduction in benefits, vacation, bonuses, or
  rates of pay
• Changes of pay and hours of work
• Subtle forms of interference, such as promises of
  benefit or threats of reprisal
• Interference with statutory rights
• Transfer to another position at less pay

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The More Informed You Are...

• The more time spent understanding the mine act
  and the safety and health regulations, the better
  equipped you will be to train employees, prevent
  accidents, and to take care of hazards before an
  inspector observes them and issues citations.
  This will make you better supervisors and
  managers.