Responsibilities of Suppliers and Manufacturers
By Colin Rice · Colin Rice Exploration and Training (Pty) Ltd. · www.colinrice.co.za
In this article we discuss the responsibilities of people and companies that supply equipment to an exploration drilling operation.
In previous legal articles I have explored a number of the provisions of the Mine Health and Safety Act that impact exploration drilling operations and in a recent article, I began to discuss Section 21 - the section that addresses the responsibilities of manufacturers and suppliers. The article specifically examined the responsibilities of chemical manufacturers and suppliers but in this article I would like to discuss what Section 21 says about equipment manufactures and suppliers.
Section 21 of the Mine Health and Safety Act very clearly outlines the responsibilities of manufacturers and suppliers and for ease of reference, I include the relevant sub-sections below.
Section 21 Manufacturer’s and supplier’s duty for health and safety
(1) Any person who -
(a) designs, manufactures, repairs, imports or supplies any article for use at a mine must ensure, as far as reasonably practicable-
(i) that the article is safe and without risk to health and safety when used properly; and
(ii) that it complies with all the requirements in terms of this Act;
(b) erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that nothing about the manner in
which it is erected or installed makes it unsafe or creates a risk to health and safety when used properly; or
(c) designs, manufactures, erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that
ergonomic principles are considered and implemented during design, manufacture, erection or installation.
(2) Any person who bears a duty in terms of subsection (1) is relieved of that duty to the extent that is reasonable in the circumstances, if -
(a) that person designs, manufactures, repairs, imports or supplies an article for or to another person; and
(b) that other person provides a written undertaking to take specific steps sufficient to ensure, as far as reasonably practicable,
that the article will be safe and without risk to health and safety when used properly and that it complies with all prescribed
requirements.
First of all, we must remember that, in South Africa, an exploration borehole is deemed a "mine" and so wherever you see the word "mine" in Section 21, you can substitute the words "drill site".
The wording of sub-section 1 is pretty broad and places some very significant responsibilities on the manufacturer or supplier. Sub-section 1 (a) (i) requires that the equipment is safe "when used properly". I interpret this to mean that the manufacturer must ensure that the user of the equipment knows the capabilities and limitations of the equipment, that he knows all of the safety devices fitted to the drill and that he knows how to use the equipment "properly" i.e. that the has been trained and assessed and declared competent to use the drill for its designed purpose and within its limits.
This is a significant requirement and, as explained in the drill rig capacity articles in this edition, I do not believe that any manufacturer of exploration drill rigs complies with the requirements of this sub-section. Frequently, I come across drill rigs where, if there is an Operation and Safety Manual, the quality of the documentation is very poor. More importantly, we often see that the quality of the risk assessment that is provided by the manufacturers is of very poor quality.
Sub-section 1 (a) (ii) is even more of a problem because it requires that suppliers and manufacturers ensure that their equipment complies with all requirements of the MHSA. I can assure you that there is not a single exploration drill rig supplier or manufacturer that supplies equipment that fully complies with the Act.
If we delve into and interpret the requirements of the Act we will see that drills must be fitted with guards to all rotating, moving or hot components, hoists must be speed, load and travel limited, drills must be fitted with isolation switches (lock-outs), hoists must be clearly and conspicuously labelled with their Safe Working Load, and so on. There are many more requirements that manufacturers are required to meet but manufacturers continue to supply equipment that is deficient in terms of the Act.
Why is this the case? The answer is very simple, the regulations of the MHSA are written to regulate mining operations and not exploration drilling operations. As a consequence, we have to extract from the Act the provisions that apply to exploration operations and then we have to interpret what they mean.
The problem is that three different people will arrive at three different interpretations and so no one is exactly sure of what the Act requires. Suppliers therefore supply "bear" drills and leave it up to the contractor to fit what additional safety devices he thinks the mine wants. Unfortunately, the mine often does not understand the operation of an exploration drill and so demands modifications that are unnecessary and sometimes compromise safety rather than improve safety.
Given this situation, the attitude of manufacturers is understandable but it places contractors in a weak position - as soon as the contractor modifies a drill to suit mine requirements he risks voiding the manufacturers warranty. I came across a case recently where the responsible engineer on a mine required that the contractor weld two struts to the mast of a brand new drill rig so that a safety chain could be fitted! This is crazy, unreasonable and in the particular case it was also unnecessary.
So where does this leave the manufacturer and the contractor? Unfortunately, confusion reigns and will continue to reign until everyone agrees on what a "safe" drill rig should look like.
This requires that all applicable legislation is interrogated and that the relevant regulations are correctly interpreted and collated into a simple to understand document. I have done this exercise for several major mining companies in South Africa and created what we have called a "drill site safety standard". The standard is complete and addresses every legal requirement plus a good deal of common sense. I strongly believe that the standard should be adopted by all mining and exploration companies so that we can build a level of consistency and compliance in our industry.
For more information on the drill site safety standard I have developed, please visit our website or contact Colin Rice directly on colin.rice@colinrice.co.za.
In future articles in the Legal Section, I will discuss further requirements in terms of the Mine Health and Safety Act.
Date: 7 April 2020
Time: 12:00-14:30