© 2015 armstrong teasdale llp strategic stones hitting the mark with your 103(f) walk around april...

© 2015 Armstrong Teasdale LLP


Strategic StonesHitting the Mark with your 103(f) Walk AroundApril 7, 2015: 33rd Annual South Central Joint Mine Health & Safety Conference Ryan D. Seelke

Attorney at Law


Ryan D. Seelke

Armstrong Teasdale, LLP

7700 Forsyth Boulevard, Suite 1800

St. Louis, Missouri 63105

314-552-6624 (Office Direct)

573-578-8240 (Cell)

[email protected]

Introduction


Then he took his staff in his hand, chose five smooth stones from the stream, put them in the pouch of his shepherd’s bag and, with his sling in his hand, approached the Philistine. 1 Samuel 17:40.

Five Smooth Stones


First Stone

Know Your Rights & Use Them Responsibly


5

First Stone: Know Your Rights & Use Them Responsibly

Section 103(f) of the Mine Act provides that:

• Mine operator & miners’ representative shall be given an opportunity…

• to accompany MSHA during the physical inspection of the mine…

• for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences.


MSHA must give you a reasonable opportunity to partake in the inspection:

• Arbitrary deadlines are insufficient;

− No “five minute rule.”

• You cannot unreasonably delay the start of an inspection, however.

− Always have back-up person(s) available.

If MSHA violates your rights, they do so at their own risk:

• Jeopardizes enforcement actions taken while inspectors are unaccompanied:

− Modification of Unwarrantable Failures;

− Exclusion of Evidence;

− Vacating of Enforcement Actions.


© 2015 Armstrong Teasdale LLP7


Understand the purpose of the inspection/investigation:

• This is not a “friendly” C.A.V. visit.

• MSHA is there to find violations and to issue citations.

−Civil penalties and personal liability may attach.


1. Make sure someone greets the inspector when he arrives.

2. Have someone ready and able to travel with the inspector.

3. Always show respect.

‣ Your attitude toward the inspector has a direct impact on the citations that are issued.

If traveling with an inspector, never let him or her out of your sight.



Top seven guidelines for handling the walk-around responsibly

1. Do not assist the inspector with his job;

1. Be only an escort (let the inspector find the violations);

2. Avoid making unnecessary admissions;

1. What you say can be used against you.

3. Never withhold requested information that MSHA is entitled to;

4. Always be truthful;

5. Listen, listen, listen;

6. Do not feel as if you have to explain a condition; and

1. Don’t be afraid of silence.

7. Don’t guess or speculate as to an answer.



Second Stone

Know the Law


You must know the regulations under 30 CFR which are applicable to your operation!!

• Always carry around a pocket size 30 CFR or have the 30 CFR installed as an application on your phone.

−I-Tunes, Google Play Store: Type in 30 CFR.

You should know what is legally required to support common enforcement actions (because many times, inspectors don’t)

• Significant & Substantial (S&S)

• 104(d)(1) & (2) Unwarrantable Failure(s)

Second Stone: Know the Law


For example, what is a Significant & Substantial violation?

• A violation is S&S if based on the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to (by the alleged violation) will result in injury or illness of a reasonably serious nature.

National Gypsum Company, 2 FMSHRC 1201 (1980)



MSHA must prove the following FOUR elements for a violation to be S&S:

• First, MSHA must cite a violation of a mandatory health and safety standard;

− Think Part 56 & 57 (Metal/Non-Metal); 75 (Coal); 46 & 48 (Training)

• Second, MSHA must identify a discrete safety hazard;

− A measure of danger to safety and health contributed to by the violation.

• Third, MSHA must prove that there is a reasonable likelihood that the hazard contributed to will result in an injury; and

− Most important element.

• Fourth, MSHA must show that there is a reasonable likelihood that the injury will be of a reasonably serious nature.




Violation of Mandatory Safety Standard

Discrete Safety Hazard

Reasonable likelihood that hazard will result in injury

Reasonably likelihood that injury will be reasonably serious



MSHA inspector discovered the bottom step on the side access ladder of a Cat 980 front end loader was bent creating a slip and fall hazard.

Inspector issues a 56.11001 citation

Is this an S&S citation?



Combustible liquid spillage and leakage around the right side of the engine on a Cat 980 front end loader. This condition created an increased fire hazard.





Spilled material ranging from fines to 4 inch diameter rock laying on the walkway along the number 2 screen.

Inspector issues a 56.20003(a) citation




Loose ground conditions were observed on a high wall approximately 2-3 feet above floor level. Loose measured 1ft x 2ft x 4in and was located approximately 6 feet from the last row of drill holes.




Third Stone

Capture the Scene


Third Stone: Capture the Scene

Number one rule: It is all about the facts.

You are the front line of defense to enforcement actions.

• It is your responsibility to capture and document the facts.

Only you can capture what occurred during the inspection.

• You are the expert, investigator, and company advocate.

Developing independent facts is essential to your success to legal challenges to MSHA citations.



Developing independent facts:

• Instill credibility with the inspector.

− Make him comfortable yet appreciative of your role

• Contemporaneously duplicate everything the inspector does:

− Take measurements;

− Take Photographs;

− Draw Diagrams;

− Notate time(s).

• Document the “rest of the story.”

− Take additional photographs to put scene into context, etc.

− Follow-up with other relevant persons post-inspection.



• TAKE NOTES: MSHA does and you should too. Only document facts that are relevant to the inspection and specific citation(s).

− Document dates and times of every event during the inspection;

• Time the inspector arrives, travel time to inspected areas, and time you leave a specific area.

− Don’t speculate;

• If you do not know, don’t act as if you do.

− Don't offer personal opinions; and

• It is, however, okay to personally inform the operator’s attorney.

− NEVER give your notes to MSHA: Legal work product.


Fourth Stone

Ask Intelligent Questions


Fourth Stone: Ask Intelligent Questions

• Asking intelligent questions tests the strength of a citation BEFORE it is written.

− However, know which questions to ask and which ones to avoid based you your knowledge of the law and the condition:

• What is the safety hazard?

• What is the potential injury?

• How does the condition amount to aggravated conduct?

• How in an injury reasonably likely to occur given THESE SPECIFIC FACTS.

− Document inspector’s response.

In order to throw this stone, however, you must have stones one (knowing you rights) and two (knowing the law) in your arsenal.


Fifth Stone

Close Out Conference


Fifth Stone: Close Out Conference

The close out conference is where all the stones come together

• The close out is the first “formal” informal conference.

• Tips for a successful conference:

− SHOW UP!

− Make MSHA inspector go over each and every issued citation;

− Make sure all helpful personnel are involved and in attendance;

− Be respectful;

− Present your case clearly and concisely:

• Tell inspector your side of the story using your notes, photos and witnesses;

• Take notes and document what inspector says.

• If needed, request Health and Safety Conference within ten (10) days of close-out conference.


Thank You

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Documents

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armstrong teasdale llp

seelke armstrong teasdale

law slide

introduction slide

physical inspection

smooth stones

postinspection conferences