# Presentation: 494317

## Supervisory 		      		Responsibility

- Responsibilities under the Federal Mine Safety and Health Act of 1977

**Notes:**
The instructor should present this information in a positive manner; not with the attitude or intent to, "scare the heck out of them."  After going through the list of course topics in slide 2, the instructor should stress that it is important for the supervisors to be familiar with the Act and to understand what it's intent and purpose is.  It should be pointed out that our society has expectations.  To accomplish those expectations, the process is to pass laws that are intended to do what?---  force us to do what we should be doing anyway.  The instructor should ask the question, "where do laws come from and why?"  The answer is, "something bad or undesirable has been occurring and there becomes a recognized need to prevent such."  That is what Congress pointed out when it declared the things listed in slide No. 3.

## Course Topics

- Definitions
- Sections of the mine act
- Significant and substantial
- Negligence
- Unwarrantable failure
- Company/agent violations
- Special investigations
- Penalties
- Good supervisory practices

**Notes:**
The instructor should present this information in a positive manner; not with the attitude or intent to, "scare the heck out of them."  After going through the list of course topics in slide 2, the instructor should stress that it is important for the supervisors to be familiar with the Act and to understand what it's intent and purpose is.  It should be pointed out that our society has expectations.  To accomplish those expectations, the process is to pass laws that are intended to do what?---  force us to do what we should be doing anyway.  The instructor should ask the question, "where do laws come from and why?"  The answer is, "something bad or undesirable has been occurring and there becomes a recognized need to prevent such."  That is what Congress pointed out when it declared the things listed in slide No. 3.

## The More Informed You Are...

- The more you understand the Mine Act, the safety and health regulations, and the intent and purpose of them, 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 help you become better supervisors and managers.

## Congress Declared

- First priority of the mining industry is the health and safety of the _miner._
- There is an urgent need to improve mining conditions.
- Mandatory standards be established requiring mine operators and miners to comply.
- Eliminate serious injury and death in the mining industry.

**Notes:**
The Instructor should state that these are some excerpts from the "Findings and Purpose" section at the beginning of the Mine Safety and Health Act of 1977.

Handout No. 1 - History of Mine Safety and Health Legislation
Handout No. 2 - Historical Listing of Mine Fatalities By Year

Handout No. 2 illustrates why there was a  need to improve the conditions in the mining industry.   

## Handouts 1 & 2

- History of Mine Safety & Health Legislation
- Listing of Mine Fatalities By Year

## 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.

**Notes:**
This slide contains the key message for the whole presentation; it establishes who has the responsibility of preventing those bad or undesirable conditions and practices that create accidents and injuries in the mines --- The mine operator with the assistance of the miners.  The message is driven home further with discussion of the next slide containing the key definitions.

## 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.*
**Agent - ***any person charged with responsibility for the operation of all or part of a mine...or supervision of miners in a mine.*

**Notes:**
Miners have protection and rights afforded by the Mine Act and managers and supervisors are miners also.  Point out that if they are supervisors, even leadmen, they are the same as the mine operator because they make decisions, or represent, or act as agents for the mine operator.  Another key point in this slide is that independent contractors working at mines are also mine operators; there is no difference as far as responsibility for compliance with the Mine Act.  The last line,that shows the percentage of mine fatalities contributed by contractors, is why we must stress the points in the next slide.      

## 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 rigid requirements in contracts to control contractor behavior
- Monitor contractor activities

**Notes:**
This  slide should be used to thoroughly address the seriousness of the contractor issue.  There may be some discussion from the supervisors about also being cited for contractor violations.  The answer would be to point to the need of diligence in the areas of the last three bullets.  The instructor could give one illustration where a mine company supervisor is in the immediate area with every opportunity to observe violations being committed by the contractor and taking no action to get the situation corrected.  The inspector would have to consider citing the mine company if he observes this situation.  Many times contractors are in and out of an operation and MSHA will not  have the opportunity to inspect them.  We must rely on the mine company supervisors to ensure contractors meet their responsibilities.

## What is an “Agent”?

***Are you a supervisor, a leadman, foreman, superintendent, etc.?***
***If yes to any of the above, you are an AGENT.  ***

**Notes:**
The information here is self explanatory.  Move on to the next slide to further discuss this.

## Are you aware of your responsibilities under the Mine Act?
Are you aware of the potential consequences of ignoring those responsibilities?

LISTEN UP!!!

***Are you aware of the potential consequences of ignoring those responsibilities******?***
***LISTEN UP!!!***

**Notes:**
 After the "listen up" phrase, the instructor should mention that the next several slides will cover various sections of the Act and will illustrate how the failure of supervisors to fulfill their responsibilities can determine the type of enforcement action the inspector will take.

## AN ACT    Levels of Enforcement

_**Section 103**_
- a)  Mandatory minimum of 4 & 2 inspections per year.
- d)  Accident/Injury investigation & reporting (30 CFR Part 50).
- f)  Right of the miner to have representation on an inspection (30 CFR Part 40).
- g) Right to request an immediate inspection (30 CFR Part 43).

**Notes:**
In Section 103(a) of the Act, congress specified that MSHA would make frequent inspections and investigations of mines each year.  Each underground mine must be inspected a minimum of 4 times a year and each surface mine must be inspected a minimum of 2 times a year.

The details of compliance with Section 103(d) are set forth in 30 CFR Part 50.

The details of compliance with Section 103(f) are set forth in 30 CFR Part 40.

The details of compliance with Section 103(g) are set forth in 30 CFR Part 43. 

## Section 104

- (a)      - Citations issued for violations
- (b)      - Non-compliance orders
- (d)(1) - Unwarrantable failure citation

**Notes:**
An inspector is mandated to cite violations that are observed during inspections and investigations.  The 104(a) Citation is the lowest level of enforcement.  104(a) Citations can be issued as serious violations  (S&S) or non serious (non S&S); S&S will be further explained a little later.

104(b) - The 104(b) is an Order action.  The instructor may want to ask the question at this time, "what is the difference between a citation and an Order?"  The answer is, a citation establishes a reasonable time for abatement, during which time, the equipment, or whatever is affected, is not shut down but can continue to operate.  An Order shuts down whatever is affected until the inspector terminates the Order.  The 104(b) Order is issued when there has been a failure to abate a citation within the time specified on the citation and there is no justification for an extension of time.  The effect of a 104(b) Order is that it will increase the amount of the penalty (fine) due to "bad faith points being added".  In the case of a non S&S citation, it will cause the penalty to be much higher than the minimal $55.00 that generally is assessed for non S&S violations.

104(d)(1) - This subsection is referred to as a series enforcement action commonly called the "d-series".  The first action of the series must be a 104(d)(1) Citation that the inspector evaluates as S&S and at least high negligence.  The high negligence is necessary to justify the classification of the violation as being "an unwarrantable failure to comply".  

## Section 104 (Con’t)

- (d)(1) - (d)(2) - Unwarrantable failure order(s)
- (e)(1) - (e)(2)  - Pattern of violations

**Notes:**
Once a 104(d)(1) Citation is issued at an operation, that mine is on the "d series" because a 90-day time clock started when the d(1) Citation was issued. If an inspector observes another unwarrantable violation within that 90 days, 104(d)(1) Orders or 104(d)(2) Orders will be issued for each unwarranted condition regardless of whether the condition is S&S or Non S&S.  It should be noted that 104(a) Citations can still be issued for violations that do not meet the unwarrantable (high negligence) criteria. Once a 104(d)(1) Order is issued during a mine visit, all violations meeting the unwarrantable criteria will be cited with 104(d)(1) Orders on that visit.  If an inspector makes a return visit to the mine after a104(d)(1) Order has been issued, 104(d)(2) Orders will be issued on that visit, and subsequent visits, for violations that meet the unwarrantable criteria.  The "d series" is ended if the 90-day time expires following the issuance of a104(d)(1) Citation without the issuance of any 104(d) Orders or, if a104(d) Order was issued, there must be an inspection of the entire mine without finding an unwarrantable violation (no 104(d) Orders were issued).

104(e) - MSHA has established criteria to determine if a mine has a pattern of S&S violations.  If a mine is determined to have a pattern of S&S violations, MSHA must serve notice to the mine operator.  If within 90 days of such notice, an inspector finds any S&S violation, a 104(e) Order will be issued for each S&S violation.  The 104(e) criteria has rather detailed requirements that time doesn't permit going into during this seminar.  The information above is ---

## Section 104 (Con’t)

- (g)(1) - Untrained miner withdrawn from the mine.
- (g)(2) - No discharge, discrimination or loss of pay if withdrawn under (g)(1).

**Notes:**
the very basic criteria and the point should be made that this is one of the higher levels of enforcement actions and the best thing to do is not allow conditions to progress to the point where the mine could be placed on a "Pattern Of Violations".

104(g)(1) - Congress stated in the preamble to the Mine Act that effective miner training was essential to reducing accidents and injuries and established provisions in the Act to stress the importance of such.  Section 104(g)(1) illustrates this importance by mandating that an inspector issue an Order requiring any miner to be withdrawn from the mine who has not received the requisite training specified in Section 115 of the Act (as required by 30 CFR Parts 46 & 48).

104(g)(2) - Provides that no miner withdrawn from a mine for the above reason shall be discharged, discriminated against, or suffer any loss of pay until the training is received and the miner is allowed to go back to work by the inspector.

## Section 107(a)

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

**Notes:**
Section 105(c) - will be discussed later in order to keep continuity of the inspection/enforcement process of which 107(a) is an inherent part.

107(a) - This type condition takes first priority and takes precedence as to the type enforcement action the inspector will take.  If the condition is an Imminent Danger, the inspector will evaluate S&S, negligence, and determine  if there is a violation of a mandatory standard.  There can be a 107(a) Order issued for situations that may not be a violation of a standard.  In that case, there would be no penalty assessed.  The Act gives the inspector authority to take action an any imminently dangerous condition.  Supervisors should should be looking for these type conditions and take immediate action.   

## Handout Number  3

- Citation / Order Form
- Look at Section 10 - GRAVITY
- Line A - Likelihood
- Line B - Seriousness of injury
- Line C - S & S - Yes or No

## Significant And	Substantial  (S&S)

- What makes a violation S&S?
**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 citation to be S&S, an injury must be ***_***reasonably likely to occur***_*** AND ***_***result in lost workdays or restricted duty.***_*** ***

**Notes:**
Handout Number 3- A copy of the Citation/Order form could be used with this slide.

Upon observing a violation, the inspector will have to determine whether the violation is S&S or Non S&S in item 10, lines A, B, and C of the Citation/Order form.  One of the blocks beginning with "Reasonably Likely" or others to the right of it, in line "A" must be checked, and one of the blocks beginning with "Lost Workdays" or others to the right of it, in line "B" must be checked in order for the inspector to mark "Yes" in line "C".  The condition must meet both criteria to be S&S.  If one of the blocks to the left of "Reasonably Likely" or "Lost Workdays" is checked, the condition fails the S&S test and "No" must be checked in line "C".  The inspector must now evaluate negligence in Item 11 of the Citation/Order form to determine what type action to enter in Item 12.   Of course, if the violation is an untrained miner as described in 104(g)(1), or is an imminent danger as described in 107(a), that type action would be listed in Item 12.  The next three slides will address negligence and unwarrantable failure. 

## 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.

**Notes:**
The instructor should note the levels of negligence listed in Item 11 of the Citation/Order form from "None" to "Reckless Disregard".  It should be noted this refers to mine operator negligence.  Recall the discussion of slide number 4 concerning who is responsible.  Mine operators - supervisors - agents have the responsibility to manage their operation and train their employees to ensure hazardous conditions and practices are eliminated.  Handout number 4, consisting of one or two ALJ decisions, could be used at this time, drawing attention to the highlighted areas where the judge concluded the above.  Note that in these two cases the judges indicated a lack of evidence of supervisory responsibility and therefore, upheld the high negligence evaluation.  On the other hand, if there had been evidence of good supervisory responsibility,  most likely the high negligence would have been reduced.

Note that there could be some good discussion here about what the judges wrote about managing, proper supervising, training, discipline,etc., to ensure proper conditions and practices.  One judge referred to these as statutory obligations.  These are supervisory responsibilities that we should always be working to improve so we can be effective in motivating the employees to do what they will come to understand is expected of them.

## Handout Number 4

- ALJ decision explaining negligence of mine 	operator.

## 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.

**Notes:**
Refer back to Section 104 where there was discussion of 104(a) actions and 104(d) actions.  From this slide, it is obvious that the difference between 104(a) actions and 104(d) actions is in the negligence determination.  Point out that negligence up through moderate most likely will result in 104(a) actions.  Although it is possible for a 104(a) Citation to be rated at high negligence,  most likely a rating of high negligence will result in a 104(d) action. 

## 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.

**Notes:**
The inspector should consider these factors in making a negligence determination.

## Section 105

- a) 	Propose penalty within a reasonable time
- c)   No discrimination against miners for       	 protected  activity.
- d)  Hearing for contesting citations, orders,       	 and penalties.

**Notes:**
105(a) - Requires MSHA to notify the mine operator within a reasonable time the proposed civil penalty for any violations cited.  Affords the mine operator 30 days within which to notify MSHA that he wishes to contest the citation or proposed assessment of penalty.

105(c) - Miners, representatives of miners, or applicants for employment shall not be discharged, discriminated against, or otherwise interfered with for exercising their statutory rights afforded by the Act.  These rights are referred to as protected activity.  Discrimination occurs when a miner is treated adversely for engaging in protected activity. 
Some examples are:
   -Representation on inspections
   -Request inspections/file complaint with MSHA
   -Complaints to company officials about unsafe conditions
   -Paid when mine closed or miner removed from mine by Inspector
   -Training
   -To be informed and participate in enforcement and legal proceedings under The Act 
   -Refuse to work in conditions believed in good faith to be a violation or to be hazardous

105(d) - Provides for the mine operator to have a hearing through the procedures of the Mine Safety and Health Review Commission.

## 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 ...

**Notes:**
Take note of what this really means.  There are those that have the responsibility to ensure that requirements are met.  If violations are found, they must be cited and when the negligence reaches the higher levels, this is an additional step intended to get the attention of those charged with the responsibility.   

## Purpose continued

- ...therefore, congress expressly imposed civil and criminal penalties on both the company and *AGENTS* of corporate mine operators.

**Notes:**
Section 110(c) applies only to agents of corporations and generally involves civil penalties associated with "knowing" or "having reason to know".  Section 110(d) applies to any operator and is generally associated with "willful" and "reckless disregard" terms and thus provides for criminal action.

## Section 110

- (a) - Assess civil penalties for violations from $55 to $55,000
- (b) - Penalty of up to $5,500 per day for failure to comply

**Notes:**
110(a) - Each violation cited must be assessed a civil penalty from $55 to $55,000 against the mine operator (company).

110(b) - provides for fines up to $5,500 per day for failure to comply with a Citation or Order.

## Section 110 (Con’t)

- (c) - Corporate agent assessed civil penalty for knowing violations
- (d) - Any operator or agent who willfully violates and convicted (criminal) can be assessed up to $250k or 1 year or both.

**Notes:**
110(c) -  provides for civil penalties to be assessed against individual corporate agents for knowing violations in addition to the penalty assessed against the corporation.  In general, the fine can be from $55 to $55,000

110(d) - As mentioned previously, 104(d) applies to any operator and provides for criminal action.  The Government must establish beyond a reasonable doubt that the operator willfully violated any mandatory health or safety standard or other provision of the act.

## 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.

**Notes:**
This slide is self explanatory.  It illustrates how an agent could easily know or have reason to know of hazardous conditions (violations) and thus, violate Section 110(c) by failing to fulfill their responsibility.

## SECTION 110(Con’t)

- 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**.*

**Notes:**
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 the defendant should have known and had reason to know at the time of the violation."

This section is generally used for criminal actions.  The fines can reach as high as $250,000 or not more than five years in prison or both partly due to other crime prevention laws applying when criminal charges are involved.

## Section 110 (Con’t)

- 110(e) - $1,000 fine or 6 mo. in prison or both for _*any person*_* notifying an operator of impending inspection*
- 110(f) - Up to $250k or 5 years in prison 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*.

**Notes:**
110(e) - Intended to prevent advance notification  by anyone being given to the mine operator of when an inspection is scheduled or planned.

110(f) - Conviction of a violation of this section can be a felony with a fine of up to $250,000 or not more than 5 years in prison or both.  An example of this would include falsification of a 5000-23 training certificate.

This provision applies to ANYONE.
Whoever makes a false statement - The person making the false statement does not have to be an officer, agent, director, operator, miner, or even an employee at the mine.
Typically arise in the context of falsified training certificates, where the trainer signs a form certifying that he/she has given proper training when, in fact, he/she has not done so.
Note:  THIS CAN ALSO APPLY TO PART 46 INSTRUCTORS (COMPETENT PERSONS)

## Section 110  (Con’t)

- 110(g) - Miners can be fined $275 personally for violating smoking related standards.
- 110(h) - Up to $250k or 5 years in prison or both for _anyone_ convicted of knowingly misrepresenting equipment, components or accessories as being in compliance.

**Notes:**
110(f) and 110(g) are the only two areas in which miners can be fined personally.

110(g) - Miners may be fined up to $275 for each infraction of violating standards relating to smoking.

110(h) - This can apply to anyone such as manufacturers, vendors, contractors, etc. who make false claims that equipment, components or accessories comply with the Act, specifications or regulations.  

## Violations Reviewed For Possible 110 Action

- 107(a) order with 104(a) citation & high negligence
- 104(d) citations/orders with s&s and high negligence
- Operator working against an order.
- District manager prerogative
*The district manager has authority to open an investigation into anything he deems necessary.*

**Notes:**
The 107(a) with 104(a) stipulation is because there can be a 107(a) Order issued for situations that may not be a violation of a standard.  In that case, there would not be a violation of a standard and thus, no penalty.

There is a similar stipulation on the 104(d).  A 104(d)(1) citation must be be S&S but 104(d)(1) and 104(d)(2) Orders can be Non S&S.  Only the S&S will be considered for possible 110(c) or 110(d) action.  

## Special Investigation

- If a determination is made to investigate a violation of any of the various parts of Section 110, a case number will be obtained 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 violation of the part of Section 110 at issue.

**Notes:**
The most common of these actions is the 110(c).  The agent will be notified if MSHA plans to propose a penalty and will be offered on informal conference before a final decision will be made.  After the conference is conducted, if the decision is to propose a penalty, the case will be sent to Assessments for a proposed penalty to be assessed against the Agent.  The proposed assessment will generally be sent to the Agent's personal address and it will be in the same format as the proposed assessments sent to the company.  The agent will have 30 days to either pay the penalty or send the form back indicating that he wishes to contest the violation which will start proceedings for a hearing before an Administrative Law Judge. 

## SECTION 115

- 30 CFR Parts 46 and 48 training requirements
- New Miner Training
- Experienced Miner Training
- Annual Refresher Training
- Task Training
- Site Specific Hazard Training

**Notes:**
Congress established the guidelines in Section 115 that were to be incorporated into regulations that addressed the training requirements for miners.  Those regulations are contained in 30 CFR Parts 46 & 48.  Recall the enforcement action contained in Section 104(g) that was discussed earlier concerning miners who have not completed the requisite training required by Section 115.

Note that this is the time to take the opportunity to "sell" the supervisors on how important effective and meaningful training can be in making a difference in safe workers as well as the workplaces being kept in a safe condition.  With Part 46, the result of a joint effort between industry, labor, and government, we have a great opportunity to make a significant difference in the workplaces of our mines.  We can only get the results we need by putting forth the effort to make the training meaningful and effective by good "follow up" and "follow through" on the part of supervisory responsibility. 
For those who have been doing Part 48 training, take a good look at your program for ways to improve them and get more and better results.  WE CAN ALWAYS FIND WAYS TO IMPROVE!  Doing training for the purpose of just satisfying the regulations will not get much results.  There needs to be meaning and "life" put into these programs.  We need to understand and try to accomplish what the regulations were intended to accomplish. 

## Good Supervisory Practices

- Evaluate workplace conditions
*Firmly & fairly enforce company, state and federal regulations.*
*Recognize and *_***take action***_* to correct all unsafe conditions and practices.*

**Notes:**
Refer to 30 CFR 56/57.18002 for MNM or                      for Coal.

To be effective in these areas, the supervisor must be familiar with company, state, and federal rules and regulations.  The supervisor must be always looking for and recognizing hazards/violations and take action -- take action -- take action ---.

If the intent and purpose of this standard is effectively met, MSHA would find very few violations in work areas.

## Good Supervisory Practices(con’t)

- Conduct or assign a competent person to conduct workplace exams to correct hazards.
- Openly listen to concerns of employees with appropriate follow-up and feedback.

**Notes:**
A competent person is someone that has the ability, experience, and training to know what to look for and be able to recognize the hazards/violations.

One of the most important things a supervisor must do is to, "follow up and follow through". 

## Supervisory Practices (con’t)

- Pre-operational checks are conducted of equipment.
- Ensure defects are corrected
- Ensure hazardous equipment is taken out of service and placed in designated area or tagged out.
- Record defects which cannot be corrected immediately.

**Notes:**
Refer to 30 CFR 56/57.14100 for MNM and                   For Coal.  This standard must be administered as a "program" that will put real meaning into what it was intended to accomplish.  There are a number of activities necessary by the supervisor that could be discussed that would put meaning into this requirement.  To be effective, there has to be more to it than going through the motions of checking little square boxes.

If the intent and purpose of this standard is met, MSHA would find very few defects that result in violations on mobile equipment.

## Supervisory Practices (con’t)

- Regularly hold safety meetings (toolbox) with crew
- Encourage miner participation with feedback
- Regularly observe work practices of all miners and correct unsafe behavior with coaching and/or discipline.

**Notes:**
Safety meetings and training require a lot of effort to make them be meaningful and effective.  If you do not put much into them, you will not get much out of them.

This is where good leadership -- good coaching can make a tremendous difference in the attitude and performance of the employees.  Proper attitude and behavior must be developed and that does not happen "overnight".  It comes from the correct things, the correct behavior being reinforced over and over again with persistence and consistency.   

## EFFECTIVE COMMUNICATIONS

- Verbal/nonverbal
- Good listener
- Ensure messages understood

**Notes:**
Need Academy personnel to develop some speaker notes for these bullets, Thanks

## The End