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PART 46 TRAINING IS THIS FOR REAL?
By Dave D. Lauriski
Did you ever think that you would be faced with similar training requirements as those governed by Part 48, namely the coal and metal/non-metal mining industry? Well, the time is here for you to realize that you too, are now covered by training requirements for your employees almost to the same extent as those covered under Part 48. Do you also realize that the same sanctions that apply to those covered under Part 48 will now apply to you for failure to comply with Part 46?
The thought of having miner1 training regulations for all mining commodities previously exempted from Part 48 training requirements, seemed just that, a thought. In April, 1999, MSHA for the first time published proposed rules covering the training and retraining of "miners" employed by those mining companies previously exempted by Part 48. The development of these proposed rules came about following an exhaustive effort on the part of operators, miners, and MSHA to come up with training rules that would be beneficial to the health and safety of the miner and that were more flexible than their Part 48 counterpart.
Following the publishing of these proposed rules, MSHA conducted public hearings throughout the U.S. to give affected persons the opportunity to comment on them. From these meetings as well as from the written comments MSHA received, Part 46 became a reality on September 30, 1999 setting forth an effective rule date of October 2, 2000.
AM I IMPACTED? If you are an operator engaged in sand, gravel, surface clay, surface limestone, surface stone, colloidal phosphate mining or in shell dredging, the answer is a simple YES!
HOW AM I IMPACTED? With the promulgation of these rules you must now provide each miner, newly employed experienced miner and newly employed inexperienced miner with training that meets the requirements of Part 46. You must also develop a training plan that meets the minimum requirements set forth in Part 46.
WHAT ARE THE REQUIREMENTS? Without reciting every part of these rules, the following summarizes each of the different requirements:
- New Miner Training (§46.5): Each newly employed inexperienced miner must receive 24 hours of training. The time frame for completing this training is that 4 hours must be given before a new miner can begin work at the mine. No later than 60 days after beginning work the new miner must receive additional training and no later than 90 days after beginning work the new miner must receive the balance of the required 24 hours.
- Newly Employed Experienced Miner Training (§46.6): While there is not a set number of hours, each newly employed experienced miner must receive training no later than 60 days after beginning work. The training given must be in accordance with the training plan adopted by the operator.
- Annual Refresher Training (§46.8): All miners must receive 8 hours of training at least once every 12 months. This training must be in accordance with the training plan adopted by the operator.
- Task Training (§46.7): Each miner who may undertake a new assignment or who has a change in a regularly assigned task, must be given task training in accordance with this section.
- Hazard Training (§46.11): This training must be given to any person who is not a miner and who is at the mine site and who could be exposed to mine hazards. Note that this training must be site specific.
- Training Records (§46.9): Once a miner or person has completed training, you must record and certify on your form or on MSHA form 5000-23, that the miner or person has received the required training.
- Training Plan (§46.3) and Training Plan Implementation (§46.4): You must prepare a written training plan that at a minimum contains those things described in this section. Unlike the Part 48 requirements, the training plan does not have to be approved by MSHA if it contains the minimum information required by the rules. You can however, seek MSHA approval even though your plan has all the required information. Should you choose to deviate from the information set forth in this section, you must submit your plan to MSHA for approval and it must be approved by MSHA before you can implement it. The training plan required by this section must be in place on or before October 2, 2000.
WHAT ARE THE CONSEQUENCES FOR NON-COMPLIANCE? Historically, MSHA has taken an extremely dim view toward operators who fail to comply with the training requirements set forth in Part 48. One should assume that they would look at Part 46 training in the same fashion. Some of the most severe penalties, be it civil or criminal, have been imposed against mining companies, mine operators, 3rd party training instructors, and against individuals for (1) failure to train or record that training has been given; (2) failure to train within prescribed time frames; and (3) falsification that training has been done when in fact it has not. The latter will probably be considered by MSHA to be the most egregious and serious.
Some of the sanctions that can and probably will be taken by MSHA if you fail to comply are:
- A 104(g) order of withdrawl on each miner or person from the mine until he/she has received the required training. If this happens be aware that the operator must continue to pay the miner his/her regular wages even though they are not working.
- A 104(a) or 104(d) citation/order to the operator. Penalties can range from $50 for non-S&S citations to $10,000 for S&S citations. The penalties can be much higher for knowing/willful violations and there is also the potential for criminal liability against either the company and/or an individual.
Among the many penalties imposed by MSHA and the courts over the years, a couple are worth noting.
In one case a mine operator was fined $32,000 for failing to provide adequate task training to an inexperienced miner who was killed after being struck by a piece of mining equipment. MSHA discovered 13 additional alleged training violations that indicated an "indifference" at the mine to training. See White Oak Mining & Construction Co., Docket Nos. WEST 96-235, 19 FMSHRC 1414 (Aug. 13, 1997), (ALJ Hodgdon).
In another case, a mine operator was initially fined $12,500 where MSHA had found that two miners had not received "new miner" training and where nine miners had not received "newly employed experienced miner" training. The ALJ in the case later reduced the fines to a total of $3,500. See S & M Construction Inc., Docket No. WEST 96-3, 18 FMHSRC 1018 (June 20, 1996), (ALJ Koutras).
Falsification of training records, (saying that training was provided when in fact it wasn't) will bring the stiffest penalties that either an operator or an individual can face. Where MSHA can prove that training records have been falsified, they can seek not only civil penalties but many times will seek criminal sanctions against the company and/or an individual.
Just to give you some idea of what penalties you could face should you falsify training records, the following will provide some example of how serious MSHA is when it comes to these types of violations.
In one recent matter, an individual was sentenced by the U.S. District Court in Abington, Va. to four months imprisonment, followed by four months of home detention, and three years of supervised release for falsely certifying on MSHA Form 5000-23 that employees of his company had received required safety training when in fact they had not. In addition, he also was fined $20,000 for the training violations and was ordered to pay $70,000 in back taxes after claiming that the company's employees were independent contractors and not employees of the company.
HOW DO I COMPLY?
In another recent case a qualified mine safety trainer was sentenced in U.S. District Court to 12 months imprisonment followed by a three year term of supervised release. The trainer, pursuant to a plea agreement, pled guilty to a felony charge of falsifying fourteen MSHA forms 5000-23. The trainer certified that he had provided new miner training to fourteen miners, when in fact he had not provided any. He was also ordered to pay a fine of $3,000. The court could have sentenced the trainer to five years in prison and a fine of $250,000 but chose to impose the lesser penalties.
As you can see from the above examples, it is critical that you take these new training requirements seriously and take every effort to comply. Do so by:
- Developing a training plan before October 2, 2000. If you need or want MSHA approval, you should get your plan developed and submitted to MSHA as soon as possible so that you have the approved plan by October 2nd. You can do the plan yourself by following the guide provided in the Part 46 rules or you can turn to outside resources who have experience in plan development for assistance.
- Take inventory of the training and experience that each of your miners have or do not have. You should also look at their respective work assignments to determine whether or not task training will be required.
- Develop your record keeping system. MSHA 5000-23 forms provide an excellent way to record miner training.
- Start your annual retraining program ASAP. Don't wait until the last minute, get a leg up on this requirement. Keep in mind that the person who does the training must be a "competent person"2 as defined by the rules. This may be someone within your organization or you can also look to outside resources for help. Many outside resources have extensive experience with miner training and may provide you with a viable and economic alternative to doing it yourself.
- Make sure that all newly employed miners, experienced and inexperienced are given training as required. It might be useful to begin that process now rather than waiting until the effective date of these rules. Again, the training can be conducted by someone in your group or by outside resources so long as they are deemed competent.
- Begin hazard training for all persons who come to your site and begin keeping records that identify who has received the training and when. This is done so that persons, such as vendors do not slip through the cracks and enter your site without the required training. Each vendor should be given hazard training at least annually so as to avoid any inference by MSHA that they have not been trained.
Is Part 46 for real? I hope you know the answer and that you act accordingly. Don't put yourself in a position of having to defend yourself because you thought it wasn't real. The choice is yours!
Dave Lauriski, former Assistant Secretary of Labor for Mine Safety and Health Administration
1 -- As defined, a "miner" is any person including operators/supervisors, who works at a mine and who is engaged in mining operations. This definition also includes independent contractors and their employees who are engaged in mining operations; and any construction worker who is exposed to hazards of mining operations. (See §46.2 of 30 C.F.R., Part 46).
2 -- A "competent person" is defined as a person designated by the production operator or independent contractor who has the ability, training, knowledge, or experience to provide training to miners in his or her area of expertise. The competent person must be able to effectively communicate the training subject to miners and to evaluate whether the training given the miners is effective. (See §46.2, Definitions).