Traveling with the MSHA Inspector

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

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.

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.

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

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

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

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

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

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

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?

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?

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

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.

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

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?

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

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

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

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.

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

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