New Machinery Regulations, 2014: Trackless Mobile Machinery and Equipment.
New Machinery Regulations have been published under Chapter 8 of the Mine Health and Safety Act Regulations. The new Regulations deal with Trackless Mobile Machinery (TMM) and do not replace any current Regulations incidentally dealing with TMM’s but rather add to it.
The new Regulations is a hybrid of a purely prescriptive approach and one which is risk based in that it is prescriptive, but only where a Mine has through a risk assessment process identified TMM operations as being a significant risk.
Definitions
In terms of definitions, various are defined including “emergency brake”, “remote controlled”, “static test” and “fail to safe”.
One of the more important definitions is that of “trackless mobile machine”, as this to an extent clarifies the area of application of the new TMM Regulations. A TMM is defined as a self propelled machine that is used on surface or underground for performing mining, transport or associated operations at a mine. It is obvious that the definition of “mine” in Section 102 of the Act would have to be taken into consideration whenever a question of applying the Regulations to a given problem is considered. Certain Regulations (dealing with driver selection and training and carrying of mine licences) are however excluded from applying to road licensed vehicles (in terms of the National Road Traffic Act) AND which are not used for primary mining tasks. The implication is that all other vehicles, whether road legal or not, are to comply.
Collisions between TMM’s and pedestrians
The Regulations prescribe that reasonably practicable measures are to be implemented to prevent accidents between machines and employees where a significant risk of this happening is identified. This implies a thorough risk assessment process, where the definition of “reasonably practicable” in Section 102 of the Act must be formally considered. Where a significant risk exists, two separate scenarios are dealt with:
- Electrical/battery operated TMM’s. Devices to automatically detect pedestrians must be fitted which alarms both pedestrians and operators. Where no action is taken machines are to be automatically retarded and brought to a full stop where necessary.
- Underground diesel powered TMM’s. Detection devices are to be fitted which will alarm both pedestrians and operators. A separate Regulation dictates that where no action is taken, the TMM must be retarded and fail to safe if necessary. This is however excluded at present and will only come into power on a date to be determined.
Collisions between diesel powered TMM’s
In general, as with collisions between TMM’s and pedestrians, a risk based approach is to be followed (implying a specific TMM risk assessment) and controls implemented. Where a significant risk is found for opencast or open pit mines however, specific steps are to be taken. Automatic detection devices (to detect TMM’s) are to be fitted. Where a TMM is identified to be in close proximity, operators are to be warned. As with pedestrians, the regulations require machines to be retarded and stopped if no action is taken, but the retard/stop requirement will only come into power at a future date.
Warning devices between TMM’s and rail bound equipment in underground operations with a significant risk is also dealt with.
General issues
Some of the general risk based issues dealt with include:
- Uncontrolled running of TMM’s
- Roll over protection
- Operator/passenger protection form falling objects
- Falling from/out of TMM’s
- Operator visibility
- Braking systems
- Wheels, tyres and rims
- Access to and from TMM’s
- Visibility of TMM’s
- Unauthorised access and use
- Isolation and lock out
- Drafting of operating procedures
- Maintenance standards and procedures
- Towing and recovery of TMM’s
- Roadway conditions (including design and maintenance standards)
- Measures to prevent reversing over the edges of stockpiles and rock dumps
- Inadvertent movement
Battery charging and refueling facilities
These facilities are individually dealt with. Issues to be considered include ventilation, fire fighting measures and lighting. Of specific interest is the inclusion of 3 SANS codes dealing with petrochemical installations on surface (SANS 10089 parts 1,2 and 3). These are now mandatory and legally enforceable and will impact current installations (Note that this could impact on suppliers with on mine installations, as the obligation for compliance lies with the employer and not the contractor.)
Remote and remotely controlled TMM’s
As with diesel storage mentioned above, the Regulations now formally incorporate 7 SANS codes which become mandatory.
Trailers
All trailers to be towed by TMM’s must be manufactured according to a design approved by a competent person. While “competent person” is not defined, it is submitted that the best policy would be to transfer this liability to the manufacturer as envisaged in Section 21 of the Act. A requirement for the implementation of procedures for the use of trailers is mandated.
Selection, training, appointment and licensing of operators.
Specific procedures for the selection etc. of operators are prescribed. This includes:
- Physical and psychological pre selection
- Theoretical, practical and on the job training
- Assessment by a competent person
- Authorisation in writing by 2.13.1
- Authorisation by supervisor detailing duties, area and equipment
- Re assessment where operator has been inactive for two years
- License to be issued (to be carried at all times) showing photo, employee number, machines authorised to operate and date of issue and expiry.
Pre use inspections
A procedure is to be drafted, which as a minimum must include:
- Pre shift inspection to be performed. Must include go, no go and go but criteria
- Inspection to confirm that safety features (brakes, lights etc.) are operational prior to setting in motion. This would seem to indicate that this would have to be performed during the shift after a machine had not been in motion.
Implications
The new Regulations will obviously have an impact on operations employing TMM’s. While there will obviously be the financial implications in terms of fitting Proximity Detection Devices, the following will have to be considered:
- Training of all operators and pedestrians on the use and limitations of personal warning devices
- In order to prove compliance, risk assessments specific to TMM’s would have to be considered. As they are not approved by any external agency, these would have to stand scrutiny following a worst case scenario (including a fatality). It would be very difficult (from a legal perspective) arguing that a critical risk did not exist where a TMM was involved in an accident.
- Various specific procedures are required to be drafted. We suggest that these be identified and drafted where not yet in place.
- The Regulations will have an impact on the Mandatory Code of Practice for TMM’s. In addition other MCOP’s will have to be aligned including the Fatigue Management MCOP (a specific procedure for fatigue management for operators is required to be drafted.)
- Currently the liability and responsibility for compliance rests on the employer. We suggest that some of the liability be shared with the OEM manufacturers and suppliers. Various examples of risk assessments and procedures included in the Regulations will entail obtaining information from the OEM. Where the OEM provides information it will serve as proof of the employer having considered the knowledge reasonably available regarding a hazard or risk as well as steps in mitigation thereof. (This is critical, as it forms part of the requirement of proving that the employer, manager or engineer had acted as far as is reasonably practicable)
Commencement
The Regulations commences three months after publication. LCS has drafted an audit protocol which is used to measure current compliance levels with the new Regulations in order to identify gaps prior to the commencement of the Regulations. Please contact us for details.
Jaco Swartz
Managing Director
jacos@legalcs.co.za
082 898 9463
Please send me the new complete Guideline for TMM
Hi Sydney, I have sent you a PM.
Jaco
Please send me the new complete Guideline for TMM.
Hi Attie,
Personal mail sent.
Jaco
Hi Attie,
Personal mail sent.
Jaco
Hi Jaco
Kindly send me the complete guid
Good day, I have sent the guideline but please note the is 8 MB in size.
Regards,
Jaco Swartz
Hi
Personal mail sent
Hi Attie,
Personal mail sent.
Jaco
Hi Attie,
Personal mail sent.
Jaco
Please send me the new complete Guideline for TMM
Please send me the new guideline TMM cop
Hi Sipho,
In terms of the TMM MCOP guideline, it is available from the DMR here: http://www.dmr.gov.za/guidance-notes-for-medical-practitioners/summary/20-mine-health-and-safety/371-trackless-mobile-machinery.html
The MCOP does however not reference the new TMM Regulations specifically. To the best of my knowledge the DMR have also not yet published a guideline on the interpretation of the new Regulations. Do you have a copy of the new Regulations? Mail me and I will make a plan to get it to you if you don’t have it.
With the uncertainty regarding the implementation of the new Regulations, we have compiled a one day audit and protocol to measure the level of compliance with regards to TMM’s. This is based on the new Regulations but also includes reference to other issues, including mandatory codes of practice applicable to TMM’s. We have also included lessons learnt as a result of having represented mines following fatal accidents where we have included practical issues which often lead to liability.
Feel free if you would like more information on the audit!
Hello Jaco can you please send me any info which might be of help regarding the risk assessment and other findings.
Regards,
Alfonso Geard
Hi Alfonso, the basic tenet is that the whole approach to the controls required in the Regulations is risk based, in other words where a “significant” risk exists…the measures must also be reasonably practicable (this is a reference to the legal definition in Section 102 of the Act). Some leeway then for the employer…but be careful…
I have forwarded a PM.
Hi Jaco
Could you please mail me the new TMM regulations When was the last new regs. ?
Thank you very much
Francois
Francois, the Regulations came into effect on 28 May 2015 (except for Regulations 8.10.1.2(b) and 8.10.2.1(b). They have not been amended since. I have sent you a copy. Please acknowledge if you have received!
Francois, the Regulations came into effect on 28 May 2015 (except for Regulations 8.10.1.2(b) and 8.10.2.1(b). They have not been amended since. I have sent you a copy of the Regulations. Please acknowledge if you have received!
Could you please send me a copy of the all new guideline for TMM on the Mine.Working as safety officer and would like to have the newest info on hand.
Regards
Heinrich
Heinrich,
The (not so new anymore) Regulations can be quite daunting. I have sent you a mail with some information.
My suggestion would be to carefully look at the Regulations and identify the individual duties. As you list them you will notice it is about a lot more than just Proximity Detection and Collision avoidance…
Jaco
Hi Jaco,
We’re a small scale diamond mine, 18 employees on 2 different sites. The implementation of the proximity detection devices regulation will lead to closure of our mine, and about 15 other near same size mines in the area alone. The cost of R950 000 (according to a quote I got) is well over our spending limits. I’m in the process of applying for postponement until further investigation. Could you please sent me the new regulation on TMM’s and any advice you might have.
Regards
Johann
Johann,
You have my sympathy! It has long been held (going back into the dark reaches of history) that the Legislation dealing with mining health and safety, going back to the Mines and Works Act, does not take into account smaller mining operations. Obligations are the same, but budgets and staffing is not.
Taking this into account, it becomes even more important for smaller operations to understand exactly what the minimum legal requirement is as we do not have the luxury of, when our understanding of the Law is unclear, taking a conservative approach and applying standards which far exceed the legal minimum.
I will forward you some thoughts (and the regs) by personal mail.
Jaco
Hi Jaco
I am currently drafting up an Audit standard for an international coal mining company for their surface and underground trailers , please supply me any regulations pertaining to this.
Regards
Mark
Hi Mark, thanks for your call and chat this morning. One of the characteristics of the TMM Regulations is the focus on specifications (as with trailers) and the approval thereof by a competent person. This means that documented proof is going to be required.
Hi Jaco,
Could you please clarify the training and “expiry date” part of the new TMM regulations.
Regulation 8.10.23.2 – a training programme for TMM operaters, covering points i),i) and iii)
Regulation 8.10.23.6 – when an operator has NOT operated a TMM for a period of two years, such operator is re-assessed to be competent….
Regulation 80.10.23.7 – that every operator of TMM is issued with a licence containing at least the following: i), ii), iii) and iv) – I am specifically looking at point iii) date of issue and expiry date;
Clarification required: We are a Drilling and Blasting Contracting company and work at various sites (specifically open cast quarries) and there is uncertainty around the expiry dates that are reflected on the Operator certificates and in some instances are not reflected on the Operator certificates, in terms of the new legislation.
From reading the new regulations the only mention of “period of time” that could be linked to re-training/assessing of Operators is the period of two years for an Operator who has NOT operated for a period of two years. What would then be the expiry date that is reflected on the licence, what would determine the actual time frame between the Issue date and the Expiry date, and where would one find the legislation governing this period.
In other words what is prescribed through Legislation to re-assess/train Operators?
I would appreciate your input as this is causing some confusion when we send Operators to site.
Many thanks
Sharon
Hi Sharon,
In essence, the question relates to when an operators competence to operate a TMM expires.
The “competence” referred to here should be seen in a broad perspective to not only include the HR/learning concept of the word, but also other considerations. In short, the following needs to be considered:
1. Medical fitness and suitability to perform the task. Obviously, even where the operator’s competence and authorisation is valid, but the annual medical is failed, the consequence would be that the person is unfit to perform the task.
2. Theoretical training in a training centre and practical training. This aspect would include formal training by an MQA accredited training service provider. The catch is that while the unit standards themselves do not contain “expiry” dates, service providers (for their own interest perhaps?) add expiry dates to certificates. Legally, it would be challenging to defend that an operator is “competent” where the certificate of competence issued by the training service provider has expired. Bear in mind that this element of training would also have to consist of training on the Mine TMM MCOP and Mine SSOP’s. It stands to reason that where these are amended for whatever reason, retraining would have to be undertaken and the “competence” of the operator could be questioned where this training is not up to date.
3. On the job training. This element is not clearly defined in the Regulations (or the Act), and individual Mines would have to specify their own procedure for this.
4. Authorisation by the engineer. Ultimately, the engineer’s authorisation is confirmation that he/she is satisfied that the above has been complied with. As the engineer is ultimately responsible and accountable (legally) for TMM operations, the individual engineer, to protect hi/herself, may add any time period as they see fit.
5. Authorisation by the supervisor. While the authorisation by the engineer has been a long standing requirement, the 20155 TMM Regulations adds a requirement for the supervisor to also authorise the operator. The conclusion is that where this lapses, the operator is unauthorised, and consequently not competent in the broad sense to operate a TMM.
6. Regulation 8.10.23 (5) states that the competence, in effect, lapses after 2 years’ non operation of a TMM. A conservative approach would thus hold that the validity period for the authorisation is 2 years, as policing the 2 year rule would in practise be difficult.
While the above is the minimum legal requirement, the practice would be for the Mine to create a framework for ensuring compliance. In practise this would mean drafting an MCOP and associated SOP’s to effect compliance. In the process of doing this, the Mine would in essence have to create voluntary standards exceeding the minimum legal requirement. it is important to note who has the duty for ensuring compliance. The duty ultimately rests on the employer (and engineer). As such a contractor does not have the duty to establish the “rules”, but simply to comply with the Mine’s standards based on the minimum legal requirements.
In essence this means that the contractor has no obligation to determine the expiry date that has to be included on the operator’s card. This is the duty of the “ employer”, being your client.
Jaco
Wrt the PDS or CAS systems, the DMR is North West (Rustenburg Office) does not care about whether your Risk Assessment indicates that it is a significant risk or not. From 1 March 2016 every mine must have these systems installed, if you dont comply they slap you with a Section 54.
Hi Christo.
This has been coming for some time. There are many examples of where the Inspectorate’s interpretation of Legislated standards are open to criticism. One of the issues is the broad rights individual Inspectors are given in terms of Section 54(1). A 54 may be issued if an Inspector has “reason to believe” that persons may be endangered. The wording allows for a degree of subjectivity, as opposed to Section 55 which is more objective insofar as an Inspector must refer to breach of a provision of the Act, in other words something measureable.
It will be interesting to see what the reaction in the industry will be. Various legal options exist, with the simplest being that the Inspectorate need to follow their own process (Section 54(5) requires the Chief Inspector to vary, set aside or approve each 54 Notice). Alternatives would be to approach the courts or follow the processes defined in the Promotion of Administrative Justice Act. In terms of PAJA, Government bodies must give written reasons for their administrative actions which impact on a person’s rights.
Some of the issues which may be clarified should a legal route be followed would be defining what a “significant” risk is as well as the question of man-machine and CAS on surface, as these are specifically excluded from Regulation Chapter 8.10.
Time will tell!
Jaco
Jaco, we own and operate a small stone quarry in the Limpopo Province. With the change of an inspector, we are now all of a sudden also required to fit all of our equipment with CAS systems. Does the rule of own assessment of significant risk still apply? Can one deam certain vehicles more likely to be involved in accidents than others and only equip vehicles with a higher accident risk profile? We were “advised” to split the pit (mine) and the plant, then let the plant operate under factory law and only the mine under DMR regulations. Again, this seams like the wrong approach. There are no people on foot in the mine, and excavators poses a lower risk since it is mostly static. Only the dumpers really that come and go. On the plant on the other hand, you have Front end-loaders and plant operators always in close proximity of each other. The confined space makes CAS systems difficult to implement, but this is in my mind the higher accident risk area… Some guidance will be appreciated to lower the cost impact of this DMR ruling.
Hi Corné,
The Regulations have not been amended and the requirements are exactly the same as they have been since promulgation. To summarise:
1. Where a significant risk (on surface) exists for collisions between diesel powered machines, Collision Avoidance becomes a requirement. ((Note that MHSA Regulation 8.10(2) does not deal with collisions between machines and pedestrians.
2. “Significant” refers to residual risk i.e. an unacceptable risk remains despite the additional controls implemented.
3. As such, the use of CAS is risk dependent, and not an automatic legal obligation in terms of the Regulations.
4. Beware of making the call of not doing CAS if this is not supported by a scientific, objective risk assessment as this could legally be held against the employer after an accident occurs.
You also mention “splitting” the plant and the pit. Be very wary of this. The definition of “Mine” in the Act must be read with the definition of “Mining Area” in Section 1 of the Mineral and Petroleum Resources development Act. This serves to broaden the area of application of the Act and not to narrow it.
In terms of Sections 79 and 80 of the Act, only the Minister of Mineral Resources has the authority to extend the OHSA to a Mine. This is a formal process and not something an Inspector has the authority to deal with.
Trust this helps!
Jaco
Hi Jaco
I have heard that the regulations according to the DMR has changed and there is no such thing as a GO BUT anymore? Is that true? Can you please advise me on that and send me the latest Guidelines on TMM’s please?
Thank you
Hi Jaco,
Could you please send me a copy of the all new guideline for TMM on the Mine.
it will be highly appreciated.
Hi Henriette,
I have forwarded you some information.
Jaco Swartz
Great post! Have nice day ! 🙂 jaatg
Please email me the new act about tmms please
Hi Hanno, thanks for contacting us. You have mail.
Please can you send me the new laws on trackless mining machines. Thank you
Hi Jaco
We work on underground TM3 machines. What is the new laws on ROPS/FOPS, Fail safe braking systems and rebuilds.
Thank you
Hi Tony,
Thanks for contacting us. I have forwarded some information.
Jaco Swartz
This is not a comment but question-How much sound pressure level required to TMM reverse alarm and which regulation number.
Hi Solly!
Very good question. The TMM Regulations do not specifically deal with the fitment of acoustic reversing signals. In fact the TMM MCOP mentions “warning” as a generic topic but also does not deal with reverse alarms.
In the absence of a specific legal prescription, the general rule remains that steps which are “Reasonably practicable” relative to identified risk must be taken. As such, fitting acoustic reverse alarms could be deemed a requirement where a risk assessment indicates it. It then follows that the legislation also does not stipulate the specific minimum requirement for sound pressure levels. The level would however have to be reasonable and should in our opinion take into account speed of travel, type of equipment, operating environment and ambient environmental noise level.
First prize would be to ensure that the manufacturer/supplier supplies TMM’s in compliance with their obligation as a manufacturer under Section 21,i.e. to provide equipment that complies with legal standards and are able to be used safely when properly used.
Hope this helps!
Jaco Swartz
Dear Jaco
Trust that you are well. Can you send me a copy of the TMM regulations for underground hard rock mining equipment please.
Will be greatly appreciated.
Thank You
Mailed.