TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER 6 MINE SAFETY
PART 2 EMERGENCY
NOTIFICATION
19.6.2.1 ISSUING AGENCY: New
Mexico Mining Safety Board.
[N, 08/31/06; 19.6.2.1
NMAC - Rn, 11.8.2.1 NMAC & A, 9/30/08]
19.6.2.2 SCOPE: All
persons subject to Section 69-5-1 et seq and Sections 69-8-1 et seq. NMSA 1978
and all mines as defined in Section 69-8-2.D NMSA 1978.
[N, 08/31/06;
19.6.2.2 NMAC - Rn & A, 11.8.2.2 NMAC, 9/30/08; A, 9/29/15]
19.6.2.3 STATUTORY AUTHORITY:
Section 69-5-1 et seq and Sections 69-8-1 et seq., NMSA 1978.
[N, 08/31/06;
19.6.2.3 NMAC - Rn, 11.8.2.3 NMAC, 9/30/08; A, 9/29/15]
19.6.2.4 DURATION:
Permanent.
[N, 08/31/06;
19.6.2.4 NMAC - Rn, 11.8.2.4 NMAC, 9/30/08]
19.6.2.5 EFFECTIVE
DATE: August 31, 2006, unless a later date is cited
at the end of a section.
[N, 08/31/06;
19.6.2.5 NMAC - Rn, 11.8.2.5 NMAC, 9/30/08]
19.6.2.6 OBJECTIVE: The
objective of 19.6.2 NMAC is to establish regulations to implement the
requirements for emergency notification plans, mine accident emergency
operations center and accident notifications as directed in Chapter 69, Article
5 NMSA 1978.
[N, 08/31/06;
19.6.2.6 NMAC - Rn, 11.8.2.6 NMAC, 9/30/08; A, 9/29/15]
19.6.2.7 DEFINITIONS:
A. “Accident” means accident as defined
in 69-8-2 A NMSA 1978.
B. “Annual tomage of coal” means the
clean coal tons reported on the form 7000-2 for the previous calendar year.
C. “Board” means the state mining safety board.
D. “CFR” means Code of Federal
Regulations.
E. “Days”
means calendar days.
F. “Hours worked” means hours reported to mine safety and
health administration (MSHA) on the 7000-2 form or for an occupational safety
and health administration (OSHA) regulated site on the OSHA form 300-A, for the
previous calendar year.
G. “Inspector” means the state mine inspector.
H. “Mine” means mine as defined in 69-8-2 E NMSA 1978.
I. “Operator” means operator as defined in 69-8-2.G NMSA
1978.
J. “Service” means
providing any document, paper or pleading to a person either personally or by
certified mail, return receipt requested.
[N, 08/31/06;
19.6.2.7 NMAC - Rn, 11.8.2.7 NMAC & A, 9/30/08; A, 1/01/10; A, 10/01/10; A,
9/29/15]
19.6.2.8 REQUIREMENT
TO FILE EMERGENCY NOTIFICATION PLAN:
A. All operators of existing mines must prepare an emergency
notification plan and submit the plan to the state mine inspector for approval
by April 10, 2006. All operators of new
or reopened mines shall submit an emergency notification plan to the state mine
inspector prior to opening or reopening the mine.
B. Each emergency notification plan must contain procedures
for notifying the state mine inspector within thirty (30) minutes of an
accident.
C. Any changes made by a mine operator to an approved
emergency notification plan shall be submitted by the operator, within no less
than seven (7) working days from date of the change, to the state mine
inspector for review and approval. The
inspector shall no less than annually, from the date of approval of an
operator’s emergency notification plan, notify the operator to insure that the
plan on file with the state mine inspector is current.
D. The inspector shall retain a copy of each mine operator’s
approved emergency notification plan at the mine accident emergency operations
center.
[N, 08/31/06;
19.6.2.8 NMAC - Rn, 11.8.2.8 NMAC & A, 9/30/08; A, 9/29/15]
19.6.2.9 ESTABLISHMENT
OF MINE ACCIDENT EMERGENCY OPERATIONS CENTER:
A. The state mine inspector shall establish and maintain the
mine accident emergency operations center as the primary state government
communications for dealing with mine accidents that:
(1) provides emergency assistance
requested by the mine operator or the mine safety and health administration for
mine accidents or emergencies; and
(2) is accessible twenty-four (24) hours
a day, seven (7) days a week, at a statewide telephone number established and
designated by the inspector.
B. Upon receipt of an emergency call regarding an accident,
the mine accident emergency operations center shall immediately notify the
state mine inspector or his/her designee, who will ensure that the emergency
notification plan for the appropriate mine is complied with.
C. In the event of an accident or recovery operation in or
about a mine, the state mine inspector may, upon request of the mine operator
or the mine safety and health administration, coordinate the assignment of mine
rescue teams to assist with needed rescues.
[N, 08/31/06;
19.6.2.9 NMAC - Rn, 11.8.2.9 NMAC, 9/30/08; A, 9/29/15]
19.6.2.10 REQUIREMENTS TO NOTIFY THE MINE
ACCIDENT EMERGENCY OPERATIONS CENTER:
A. Whenever an accident occurs in or about a mine or the
machinery connected to a mine, the operator of the mine shall give notice within
thirty (30) minutes of ascertaining the occurrence of the accident to the mine
accident emergency operations center at the statewide telephone number
established by the state mine inspector stating the facts and circumstances of
the accident and providing the names and telephone numbers of at least two (2)
persons the operator designates who are knowledgeable about the accident or
about the emergency operations at the mine.
B. Nothing in this section shall be construed to relieve the
operator of the mine from any reporting or notification requirement under
federal law. Notification of any other
federal, state or local agency does not relieve the operator of its obligation
to provide notification under Subsection A of 19.6.2.10 NMAC.
[N, 08/31/06; 19.6.2.10
NMAC - Rn, 11.8.2.10 NMAC, 9/30/08; A, 9/29/15]
19.6.2.11 FAILURE TO PROVIDE TIMELY NOTICE:
A. The state mine inspector shall impose a civil penalty of
up to one hundred thousand dollars ($100,000) on the operator of a mine if it
is determined that the operator failed to give immediate notice as required in 19.6.2.10
NMAC. The inspector may waive imposition
of the civil penalty at any time if the inspector finds that the failure to
give immediate notice was caused by circumstances outside the control of the
operator.
B. In determining the amount of the penalty, the inspector
shall consider all relevant factors including whether notice was provided at
all to the inspector or, if notice was provided, the lateness of such notice
and the seriousness of the accident. The
inspector shall utilize the penalty structure approved by the mining safety
board.
(1) Penalty
points for coal mining operators based on coal production.
|
Annual tonnage of coal mine failing to provide timely notice |
Penalty points |
|
0 to 15,000 |
0 |
|
Over 15,000 to
30,000 |
1 |
|
Over 30,000 to
50,000 |
2 |
|
Over 50,000 to
100,000 |
3 |
|
Over 100,000 to
200,000 |
4 |
|
Over 200,000 to
300,000 |
5 |
|
Over 300,000 to
500,000 |
6 |
|
Over 500,000 to
800,000 |
7 |
|
Over 800,000 to
1.1 million |
8 |
|
Over 1.1 million
to 2 million |
9 |
|
Over 2 million |
10 |
(2) Penalty
points for coal mining operators based on the coal production in New Mexico of
the controlling entity.
|
Annual tonnage of coal produced in New
Mexico of controlling entity |
Penalty points |
|
0 to 100,000 |
0 |
|
Over 100,000 to 700,000 |
1 |
|
Over 700,000 to 1.5 million |
2 |
|
Over 1.5 million to 5 million |
3 |
|
Over 5 million to 10 million |
4 |
|
Over 10 million |
5 |
(3) Penalty
points for metal/non-metal operators based on hours worked.
|
Annual hours worked at a M/NM mine
failing to provide timely notice |
Penalty points |
|
0 to 10,000 |
0 |
|
Over 10,000 to 20,000 |
1 |
|
Over 20,000 to 30,000 |
2 |
|
Over 30,000 to 60,000 |
3 |
|
Over 60,000 to 100,000 |
4 |
|
Over 100,000 to 200,000 |
5 |
|
Over 200,000 to 300,000 |
6 |
|
Over 300,000 to 500,000 |
7 |
|
Over 500,000 to 700,000 |
8 |
|
Over 700,000 to 1 million |
9 |
|
Over 1 million |
10 |
(4) Penalty
points for metal/non-metal operators based on annual hours worked in New Mexico
by controlling entity of a M/NM mine.
|
Annual hours worked in New Mexico by
controlling entity of a M/NM mine |
Penalty points |
|
0 to 60,000 |
0 |
|
Over 60,000 to 400,000 |
1 |
|
Over 400,000 to 900,000 |
2 |
|
Over 900,000 to 3 million |
3 |
|
Over 3 million to 6 million |
4 |
|
Over 6 million |
5 |
(5) Penalty
points based on operator negligence.
|
Negligence |
||
|
Categories |
Penalty points |
|
|
Persons endangered |
No endangerment |
|
|
Low negligence - The operator failed to
report the accident within the required thirty (30) minutes but did report
within one (1) hour. |
10 |
5 |
|
Moderate negligence - The operator failed
to report the accident for more than one (1) hour and less than four (4)
hours. |
15 |
7 |
|
High negligence - The operator failed to
report the accident for more four (4) hours and less than twelve (12) hours. |
20 |
10 |
|
Reckless disregard - The operator failed
to report the accident for greater than twelve (12) hours, or the operator
was previously fined for failure to report an accident within one (1) year of
the occurrence. |
25 |
12 |
(6) Points
based on type of accident.
|
Type of accident (as prescribed in 69-8-2 A NMSA 1978 There
could be more than one (1) category where the penalty points are accrued
i.e., a fire at a mine that burns for more than thirty (30) minutes and
results in a fatality, would equal forty (40) penalty points. |
Penalty points |
|
|
Persons endangered |
No endangerment |
|
|
Fatality |
25 |
N/A |
|
An injury at a mine that has a reasonable
potential to cause death |
20 |
N/A |
|
An entrapment of an individual that has a
reasonable potential to cause death |
10 |
N/A |
|
An unplanned inundation of a mine by a
liquid or gas |
10 |
5 |
|
An unplanned ignition or explosion of gas
or dust |
15 |
5 |
|
An unplanned mine fire not extinguished
within ten (10) minutes of discovery in an underground mine or thirty (30)
minutes at a surface facility of an underground mine |
15 |
7 |
|
An unplanned ignition or explosion of
blasting agent or explosive |
20 |
10 |
|
An unplanned roof fall at or above the
anchorage zone in active workings where roof bolts are in use; or, an
unplanned roof or rib fall in active workings that impairs ventilation or
impedes passage. |
10 |
N/A |
|
A coal or rock outburst that causes
withdrawal of miners or which disrupts regular mining activity for more than
one (1) hour. |
15 |
N/A |
|
An unstable condition at an impoundment,
refuse pile, or culm bank which requires emergency action in order to prevent
failure, or which causes individuals to evacuate an area; or, failure of an
impoundment, refuse pile, or culm bank. |
10 |
N/A |
|
Damage to hoisting equipment in a shaft
or slope which endangers an individual. |
10 |
N/A |
|
An event at a mine that causes death or
bodily injury to an individual not at the mine at the time the event occurs |
20 |
N/A |
(7) Penalty
amounts based on total points.
|
Penalty conversion table |
|
|
Penalty points |
Penalty |
|
0 to 15 points |
$5,000 |
|
16 to 25 points |
$10,000 |
|
26 to 35 points |
$20,000 |
|
36 to 45 points |
$50,000 |
|
46 to 55 points |
$65,000 |
|
56 to 65 points |
$85,000 |
|
66 to 70 points |
$95,000 |
|
71 or more points |
$100,000 |
C. If the state mine inspector determines that notice was
not timely provided, the inspector shall within ninety (90) days after
notification of an accident or, if notice was not provided to the inspector,
after ascertaining that an accident did occur at a mine, mail a notice of
violation with a proposed penalty to the operator.
(1) The operator shall pay the penalty within
thirty (30) days after receipt of the notice.
(2) If the operator wishes to challenge
the violation or request that the penalty be adjusted or waived, the operator
must submit a written petition to the inspector within twenty (20) days after
receipt of the notice. Filing of a
petition stays the requirement to pay the penalty. The operator may also submit written
documentation in support of his petition and may request a meeting with the
inspector to discuss the circumstances of the violation.
(3) Within sixty (60) days after receipt
of a petition, the inspector shall issue a final order upholding, amending or
rescinding the notice of violation and penalty. The inspector may consider
actions of the operator in response to the violation when considering amending
the penalty. The inspector’s final order
shall include a statement that the operator may file an appeal of the final
order with the board. Unless the
inspector’s final order is appealed to the board in accordance with Subsection
E of 19.6.2 NMAC, if the final order contains a penalty, the operator shall pay
the penalty within thirty (30) days after receipt of the final order.
D. In determining whether to adjust or waive imposition of
the penalty, the inspector may consider factors such as, but not limited to:
(1) whether the mine was idled for any
reason at the time of the accident;
(2) whether the mine operator encountered
communications problems that made it impossible to provide timely notice;
(3) whether medical personnel determined
that an injury was not considered life threatening immediately after an
accident; if injury becomes life threatening, then notice requirements would be
triggered when operator learns of a change in status from a medical authority;
(4) whether a fatality of mine personnel
that occurs after an accident is associated with a specific accident;
(5) whether the need to provide emergency
medical treatment or emergency rescue and recovery efforts reasonably precluded
the mine operator from timely providing notice; and
(6) whether
the penalty creates an undue financial hardship on the mine.
E. The
operator may appeal the inspector’s final order to the board pursuant to these
rules.
(1) The
operator shall file a written notice of appeal of the inspector’s final order within
twenty (20) days after service of the final order. Unless a timely written appeal is made, the
inspector’s final order shall be final and not subject to judicial review. The filing of a timely notice of appeal shall
stay enforcement of the inspector’s final order until the board issues its
written decision on the appeal.
(2) The
operator shall file the written notice of appeal with the chair of the board or
the chair’s designee, and include the order number and the name of the
operator.
(3) If a
timely written notice of appeal is made, the board shall consider the appeal at
a hearing held no sooner than thirty (30) days and no more than ninety (90)
days after receipt of the written notice of appeal. The board shall notify the operator and the
inspector of the date, time and place of the hearing at which the appeal will
be considered.
(4) No
board member with any financial interest affected or potentially affected by
the outcome of an adjudicatory hearing may serve as a hearing officer in that
hearing or otherwise participate in the hearing. All board members shall adhere with the
Governmental Conduct Act.
(5) The
board shall review the record compiled before the inspector and shall allow any
party to submit arguments at the hearing.
(6) Within twenty (20) days following the
hearing the board shall render a written decision affirming, modifying or
reversing the inspector’s final order, and stating the reasons for that
action. This decision shall be signed by
the board chair or the chair’s designee, and shall be served on both parties
within thirty (30) days after the decision is rendered and signed. A person who is adversely affected by a
decision of the board pursuant to this section may appeal to the district court
pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
[N, 08/31/06;
19.6.2.11 NMAC - Rn, 11.8.2.11 NMAC & A, 9/30/08; A, 1/01/10; A, 10/01/10;
A, 9/29/15]
HISTORY OF
19.6.2 NMAC:
Pre-NMAC
History: None
History of
Repealed Material: [Reserved]
NMAC History:
11.8.2 NMAC,
Emergency Notification (filed 7/18/2006) was renumbered and amended to 19.6.2
NMAC, Emergency Notification, effective 9/30/2008.