Submission on the NZ Govt s proposed changes to. Health & Safety Regulation in the Mining Industry

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1 Submission on the NZ Govt s proposed changes to Health & Safety Regulation in the Mining Industry In support of this submission I attach a copy of a brief CV that sets out my experience and job history. NZ Shotfirers Certificate- Passed , Andrew Joseph Loader HonFIQ, Dip.Q, MNZSC, CPM, RSP, ASA. C.E.O. New Zealand Safety Council B Grade Quarry Managers Certificate (B 2440) , A Grade Quarry Managers Certificate (A 94) , Diploma in Quarrying , Ingersoll-Rand Award winner as top student in the Diploma in Quarrying 1994, Over thirty years working in the extractive industries in NZ, Australia and the Pacific Islands. OSH Health & Safety Inspector (HSE Act 1992) April 1992, Modern Safety Management (Loss Control Management Systems)-May 1992, Accredited Safety Auditor (DNV International Safety Rating System) - May 1996, Accredited Safety Auditor (QSA) December 2002, Registered Assessor No 5 EXITO (Extractive Industries Training Organisation) , Registered Assessor No NZCITO (NZ Contracting ITO, Infratrain), Test Certifier EPA NZ for issue of Certification for Class 1 explosives use. LTSA Approved to issue licence endorsements for Wheels, Rollers and Tracks. Past President of the Institute of Quarrying New Zealand branch (1991), elected Honorary Fellow I have been managing my own Consultancy Company (First Rock Consultancy Ltd) providing training and assessment services, safety and health management planning, resource consent services, mine and quarry planning services and auditing services, since Prior to this I was employed as an Inspector of Quarries in the Mining Inspection Group of the Ministry of Commerce for nine years. Certified Professional Member of the New Zealand Safety Council. Accredited as a Registered Safety Professional (RSP Registration No.010) by the NZ Safety Council Accredited Safety Auditor (ASA Registration No: 006) by the NZ Safety Council February Elected CEO May The government is proposing significant changes to the health and safety regulations for mining in order to implement the recommendations of the Royal Commission on the Pike River Coal Mine Tragedy. It has committed to implementing these recommendations by the end of this year (2013).

2 It has released discussion documents that outline the regulatory proposals and this submission is in reply to the consultation documents provided by the Ministry of Business, Innovation and Employment (The Ministry). The Ministry states that the proposals are aimed at bringing health & safety in the NZ Mining Industry in line with International best practice and that they will help create a viable mining sector in NZ that the public can have confidence in, and which will enhance safety for workers and improve performance in the sector. The Ministry is, through this proposal, seeking to broaden the Royal Commission s recommendations concerning underground coal mines to cover all types of mining. My submission is related primarily to the Quarrying Industry and as such, the effects that these proposals will have on this part of the mining industry. Background to my Submmission: It is my firm belief that before we can seriously look at and contemplate changes to the regulatory requirements around quarrying, we need to look at the situation prior to the implementation of the HSE Act Prior to the implementation of the HSE Act in 1992 the Quarry industry was covered by the Quarries and Tunnels Act 1982 and the Quarries Regulations These regulatory requirements were enforced by the Mining Inspection Group part of the Ministry of Commerce, and staffed by Inspectors who were required to have a certificate of competency and a minimum of ten years senior managerial experience in the industry to qualify them for the position of Inspector. The Mining Inspection Group was entirely funded through a production based levy on all members of the industry up until the time when the Inspectorate was transferred to the Department of Labour, when the levy system was done away with. With the implementation of the HSE Act in 1992, the Quarries and Tunnels Act 1982 and the Quarries Regulations 1983 were repealed and it is my contention that particularly in relation to the Quarries Regulations 1983, this was the greatest step backwards that the quarrying industry had faced up to in the twentieth century. With the removal of all minimum standards that existed in the regulations and the replacement with the requirement to take all practical steps (with no obvious examples), a large percentage of persons in the quarrying industry were left not knowing what was required of them in relation to compliance and for a large number of different reasons, they did nothing but rely on the good work practices of their staff to achieve the required compliance. This lack of action on the part of many employers coupled with the diminishing levels of physical inspections, due to the fact that nearly all of the Mining Inspection Group Inspectors had resigned and that the Department of Labour was severely underfunded to carry out their role was in my opinion one of the main reasons that the Pike River Tragedy was able to occur. At the time of the Tragedy there was only one dedicated Mining Inspector in the whole country, down from seventeen at the time of the transfer, which obviously had a significant bearing on the number of physical inspections that were able to be undertaken and consequently on the ability of the Department to be able to carry out the statutory function of ensuring compliance with the requirements of the HSE Act.

3 AIMS FOR THIS PROPOSAL: In relation to the quarrying industry there are no specific recommendations from the Royal Commission on the Pike River Coal Mine tragedy. Therefore it must be taken from the Ministry s documentation, that the aim in relation to the Quarrying Industry, is to enhance safety for workers and to improve performance in the sector. It is my opinion that this proposal fails miserably on both of the stated aims and I will explain this statement below. Working Paper 2a: Regulatory Coverage of Tunnels and Quarries The Royal Commission on the Pike River Coal Mine Tragedy recommended that an effective regulatory framework for underground coal mining should be established urgently (Recommendation 2). In response to this recommendation, the Cabinet: agreed that the government strongly supports the need to establish an effective regulatory framework for underground coal mining, including emergency management arrangements, and that this be broadened across all mining using experts and international best practice (item 16 of CAB Min (12) 39/2 of 5 November 2012 refers). Inclusion of the phrase and this be broadened to all mining has raised questions about the boundaries, and particularly the coverage of tunnels and quarries in the new regulatory framework applying to the extractives activities (see especially ERG Working Papers 4 and 5). At its meeting on 30 January 2013, the ERG indicated that they supported the inclusion of quarries and tunnels within the new regulatory framework. The Policy Intent The intent behind the proposed new framework is to provide a greater level of regulatory assurance in relation to extractives activities where there is a potential for catastrophic failure (e.g. multiple fatalities), without imposing unnecessary compliance costs on related but less hazardous activities: The excerpts above, taken from the ERG working paper states that the intent of the proposed new framework is to provide a greater level of regulatory assurance in relation to extractives activities where there is a potential for catastrophic failure. I have been in the quarrying Industry for forty plus years and I cannot find any recent record where there has been a catastrophic failure in any quarry in NZ so on this level alone the proposal fails. This proposal is solely related to the government s implementation of the recommendations of the Royal Commission on the Pike River Coal Mine Tragedy and the Royal Commission made its recommendations only in respect of underground coal mines. It was Cabinet s decision to broaden the coverage of this proposal to encompass all forms of mining including quarrying and tunnelling, yet I don t see any members of cabinet with the expertise to make such a decision from a practical implementation viewpoint.

4 In fact it is my contention that there is no way you can have the same regulations covering all forms of mining. Yes there are parts of the industries where there can be identical regulations but there are large parts of each mining discipline that require regulations specific to that discipline. For this reason coupled with the lack of potential for catastrophic events in the quarrying industry I believe that the quarry industry should be dealt with separately from underground mining. *Working Paper 4 proposes a definition of a Principal Hazard as follows: Any activity, process, procedure, plant, structure, substance, situation or other circumstance relating to the conduct of mining operations that could create a risk of multiple fatalities in a single incident or fatalities in a series of recurring incident, in relation to the following: ts and any other such hazard that is identified by the mine operator of a particular mine. It is my contention based on past accident history (i.e. lack of catastrophic events), that quarrying in relation to the definition of a Principal Hazard above and in particular conduct that could create the risk of multiple fatalities in a single incident does not fit the criteria to warrant inclusion in this new regulatory framework, and to include it would be adding unnecessary compliance costs on related but less hazardous activities The summary document states that the new mining regulations will focus on Principal Hazards but other hazards will still be managed under the Health & Safety in Employment Act. The process for managing Principal Hazards, and the necessary controls, will be regulated. There will also be stronger minimum standards in key areas. All mines must have formal Health & Safety management systems. It is my experience that the majority of quarry operators have only rudimentary systems in place to manage their compliance with H&S requirements and a lot of the smaller operators have very little in the way of written systems or procedures even though they may work with a verbal system and have good accident records. In relation to stronger minimum standards in key areas, it is my contention that for the quarrying industry, this should be managed by way of an updated set of Quarry Regulations, based on the old ones from 1983 which were written in blood over the last century or so. Most of these regulations

5 were developed as a result of accidents and incidents and covered all of the main (Principal Hazards) hazards in quarrying. If the regulations are recreated and coupled with a requirement for a formal written H&S Management system which includes, a hazard identification and hazard control plan, an accident reporting system that includes all accidents by definition (i.e. all incidents that may have caused harm) & a formal emergency management plan, this should be sufficient to ensure that all quarries are complying with the regulatory requirements of the HSE Act & Regs. By requiring all quarry operators to have formal systems as set out above you will be ensuring that all operators are complying with all current requirements across the board without requiring any new or unnecessary compliance costs. This would be seen as just enforcing the current legislation not imposing new duties, with the only change required being the requirement to have a formal written system. Training and qualifications: The discussion documents summary sets out the following: Minimum training required for mine workers will be a New Zealand Certificate in Mining (Induction). Workers must be directly supervised until they hold this. An Independent board will set the standards and examine mine workers competency, and will award certificates of competency. Mine managers will have formal training in risk management and health and safety. All mining operations must have documented worker participation systems. All workers, including contractors, will be covered. Results of H&S monitoring will be provided to all mine workers. Site H&S Reps will have new powers. Industry H&S Reps will be established. I agree with the proposal for every mine/quarry worker to be required to undertake a New Zealand Certificate in Mining (Induction). In relation to the training and certification of Quarry Managers I believe that the current system of A & B Grade certificates of competency, with an explosives optional choice should be retained, but that the content of the existing certificates should be changed significantly to more accurately reflect the compliance requirements of a Quarry Manager. The changed content should include the requirement for training in risk management and H&S. It is also my belief that operators of portable crushing plants who in most cases are working outside of dedicated quarry sites, should be covered under the quarry regulations and also be required to have Managers with the appropriate certificates of competency. In relation to the above paragraph it is my belief that there should be a return to three levels of certification as set out in Mining Administration Regulations i.e. A Grade; B Grade & Certificate to manage a specific Quarry or to use the old terminology, a Surface Permit.

6 It is my contention that for most quarries the worker participation systems should be considered to be the H&S and toolbox meetings and that these should include all contractors and also have a written record kept of all items discussed and actions required & taken as a result of these meetings. If every quarry is to be required to have a site H&S Rep then this will be adding a significant level of compliance cost to all bar a very few larger quarry operators who currently have trained H&S Reps. I also cannot see how industry H&S Reps can be established without adding another significant level of unnecessary compliance cost to all quarry operators overheads. It is my belief that with the majority of quarries having three staff or less, it would be simple to increase the level of H&S training required by Managers and eliminate the need for H&S Reps other than for the one or two large quarries that already have them. This would still achieve an overall increase in the responsibility of the Quarry Manager but backed up by more and better focussed training to allow them to comply. The proposal has requirements for new technical specialist roles such as ventilation officers, electrical & mechanical engineers and supervisors to ensure that mine operators have the expertise to manage hazards but in relation to quarrying any of these roles that apply are normally filled by contracted specialists e.g. electricians, engineers etc. Emergency Management: The discussion documents summary sets out the following: Emergency management procedures, as well as new, stronger minimum standards for emergency preparedness, will be set out in the regulations. All mines must have an emergency management plan. The mines rescue service will have broader coverage and be better funded. I do not believe that the proposals as set out are realistic for the large majority of quarries, but I agree with the requirement for all operations including quarries, to have an emergency management plan. Whilst I believe that the Mines Rescue Service should be the lead authority in responding to any mining disaster (catastrophic event), I don t see where they could provide a better service than the local emergency services in relation to quarry accidents, unless there are old underground workings involved in the emergency. By the time the MRS had been notified and assembled a crew to attend an incident at a surface site, it would be more likely than not that the emergency services (i.e. fire & ambulance) would have attended and dealt with the outcome of any emergency before MRS could attend the site. Transitional Arrangements: The discussion documents summary sets out the following: The new regulations will take effect from December 2013, but there will be a transition period to allow time to comply. This will be twelve months for existing mine operators (and up to 36 months in special circumstances). Statutory duty holders with existing certificates of competence can undertake their roles while these certificates remain current. Holders of lifetime certificates must gain new, time limited certificates within three years. Anyone appointed to one of the new safety critical roles must meet the proposed competency requirements right away.

7 In relation to the transitional arrangements, these would only apply when a site was considered to be a mine by definition. It is my contention that quarries should be dealt with separately from other mining operations and therefore would not come under this requirement as such. In relation to quarries and lifetime certificates of competency it is my contention that to apply the requirement for all holders to gain a new time limited certificate within three years will only result in the majority of holders deciding to retire. The reason I say this is simply when you work out the time frames since the issuing of lifetime certificates ceased (twenty years ago) and add this to the fact that the average age of Quarry managers when last surveyed by EXITO, came out at 57, there would be very few who have got more than a couple of years to go to reach retirement age. If it could be proved that there was a particular problem with holders of lifetime certificates then I would support a call for further education, but until such time as someone can prove this to me I believe this is more of a perception problem than an actual problem. Should this requirement be put into place for all quarries then in my opinion there is going to be a shortage of certificated quarry managers which could mean that operators will have to cease operations due to their inability to comply with the requirement for a quarry manager with a current certificate of competence. This would definitely be seen as placing unnecessary compliance costs on less hazardous activities. It would be very easy to put a requirement in place as part of the regulations such that any holder of a lifetime certificate that is currently employed may continue to act as a quarry manager and that any holder that has not been employed in the quarrying industry during the twelve months prior to the time of the regulations being enacted must prove their current competency to the satisfaction of the board of examiners (i.e. pass an oral examination) prior to being employed. If this is taken in conjunction with the proposal for a Continuing Professional Development program for all quarry managers then I see no need for any change in relation to lifetime certificates. Summary of my submission: Quarrying has minimal potential for catastrophic events. Quarrying is of such different technical nature that it should have specific regulations that are totally separate from underground mining. All quarry operations should be required to comply with existing requirements under HSE Act by way of formal written systems. All quarries should be required to have a formal written emergency management system. All quarrying operations, including portable crushing operations outside of designated quarry sites, should be required to have a Quarry Manager who holds a current certificate of competency. The content of the current gazetted certificates of competency in relation to quarrying should be altered to better reflect the skills and knowledge required to manage a quarry operation in compliance with all regulatory requirements. The old Quarry Regulations from 1983 should be updated and then reenacted as a basic minimum standard for all quarrying operations. The Mining Inspectorate should be such that all Inspectors have to hold a Certificate of Competency that is equal to the operations that they are going to

8 inspect, and also have a minimum of ten years senior managerial experience in that industry (e.g. Underground Metaliferous Mine: 1 st Class Mine Managers Certificate; Underground Coal Mine: Underground Coal Mine Managers Certificate; Quarry: A Grade Quarry Managers Certificate). All Quarry Managers should be required to complete an approved Continuing Professional Development Program on a bi-annual basis. All Quarry Managers who have been out of the industry for a continuous period of more than twelve months must prove their competency, by way of an oral examination & completed CPD program, before being able to be employed to manage a quarry operation. A. J. Loader. Ex Inspector of Quarries HonFIQ. Dip.Q. MNZSC. CPM. RSP. ASA C.E.O. New Zealand Safety Council