Traveling with the MSHA Inspector

1. Traveling with the MSHA Inspector

2. Your Rights • Section 103(f) of the Mine Act • A representative of the operator and the miners shall be given an opportunity • to accompany the inspector during the physical inspection of the mine and • For the purpose of aiding such inspection

3. Your Rights • Every reasonable effort is to be made to provide both parties the opportunity to participate in the physical inspection of the mine • To carry out an orderly and thorough inspection, the inspector should not allow unusual conditions, such as unavailability of operator’s or miner’s representative, to delay the start of an inspection • An inspector may limit the number of persons in the inspection party.

4. Your Rights • The intent of Congress was to provide an opportunity for a representative of the miners and a representative of the operator to accompany inspectors during the physical inspection of the mine.

5. Purpose of the MSHA Inspection • This is not a friendly visit to your mine • The purpose of the inspection is to identify potential violations of the law • To issue citations and orders and invoke civil penalties designed to force you to comply with the law

6. Management’s Role • You are the front line defense in MSHA citations • During every MSHA inspection you must become the inspector’s “best friend” • You must duplicate everything the inspector does, taking measurements, readings, photographs, his statements, and the statements of others

7. Management’s Role • Your goal should be to gather as much evidence as you can relating to MSHA’s burden of proof relating to S&S and unwarrantable failure • You must document the fact’s for the safety director and legal counsel’s review • The facts (not opinions) concerning the condition and what actually happened is the only way to refute the inspectors opinion • When a legal challenge fails, it is almost always because the operator cannot produce first hand knowledge of the facts

8. Management’s Role • Remember: • Only the facts matter • Handle the inspector with care • The inspector has the POWER, PAPER, PEN

9. Management’s Role • You should always show respect to the MSHA inspector • Your attitude toward the inspector can, and often does, impact on the paper he issues

10. Management’s Role • Never let the inspector out of your sight • Your only responsibility during the inspection should be to keep track of where the inspector goes and what he does • Make sure your foremen are greeting the MSHA inspector when he arrives

11. Requirements of MSHA • An inspector is required to document all facts relative to a condition or practice cited: • What time was the violation observed? • What is the violation? • Where is the violation located or observed? • Who knew the violation existed?

12. Requirements of MSHA • An inspector is required to document all facts relative to a condition or practice cited: • How long has the violation existed? • How many people are exposed? • If an accident should occur, how serious would it be? • What is the likelihood that this type accident would occur at this mine, why?

13. Management’s Role • Success in challenging MSHA depends on what we know about MSHA’s burderns of proof (our knowledge of regulations, policy, and S&S) • It is rare that you will talk an inspector out of issuing a citation • Arguing about a citation is often pointless and will only alienate the inspector against you and the company

14. Management’s Role • You should gauge the inspector’s knowledge about the regulation he is going to cite • Do so by asking questions. Do not be afraid to ask questions, but know which questions to ask.

15. Management’s Role • Knowledge is power • Once you master S&S and Unwarrantable Failure, you will know which questions to ask and which questions to avoid

16. Management’s Role • Don’t be afraid to ask questions like: • What is the safety hazard in this condition? • What is the injury that may result from this condition? • What is the likelihood of an injury? • How many people are affected? • How does this condition amount to aggravated conduct?

17. Know when to be Silent • Do not assist the inspector with his job, aide only as a guide • Do not offer information and avoid making unnecessary admissions • Never, ever withhold information • Always be truthful • Listen more than you talk

18. Know when to be Silent • Never feel like you have to explain a condition the inspector finds • If you don’t know the answer to an inspector’s question, don’t speculate. Tell the inspector you will find the answer to his question • What you say can and often will be used against the mine operator and maybe you

19. Handling your notes • Your notes should include facts and not personal opinions • Your notes should be taken in anticipation of potential litigation and should be guarded as legal work product • NEVER provide copies of your notes to any inspector without talking to your legal counsel

20. Your notes • Who were the individuals involved in the inspection • Who did the inspector talk to? What did they discuss? • Any other witnesses? • Who took measurements, photographs, etc.

21. Your notes • Record dates and times of every event during the inspection • Time inspector arrives at the mine • Travel time to the inspection or site • Time you leave specific location • Accurate time frames can be critical, especially during unwarrantable failure cases

22. Why is compliance so critical • Safety of our employees • Monetary penalties now in effect (up to $220,000 for single citation) • Examples