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by Jon M. Casey
HERSHEY, PA — When businesses face the prospect of an inspection from MSHA or OSHA, managers need to know what is expected to stay in compliance. They also need to know what can be done to avoid problems on a larger scale, problems that can result from warnings or citations from either of these regulatory agencies. According to Willa B. Perlmutter, counsel with the Washington, D.C. law firm of Crowell & Moring LLP, planning is essential.
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Willa Perlmutter, Crowell & Morning, LLP, offers tips on how to host an on-site visit from MSHA or OSHA.
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Perlmutter was addressing quarry management personnel at the 2008 annual meeting of the Pennsylvania Aggregates and Concrete Association annual meeting held recently in Hershey, PA. There she said, “The more you have nailed down and know what you are going to do in a particular situation, the better prepared you are going to be to handle the unexpected things that come up. If it looks like you know what you are doing, it will look as though you are serving as an advocate for your operation when they arrive,” she said.
“If you minimize chaos before they arrive, they will start from the assumption that this is what your operation looks like across the board. It gives them a certain confidence level in your operation.”
Perlmutter, whose practice targets administrative enforcement and other mining industry regulatory and legislative issues, cited a letter written on Oct. 20, 2008 by then presidential candidate Barack Obama to John Gage, national president of the American Federation of Government Employees, AFL-CIO. In it, Obama said that should he win the presidential election, under his administration MSHA could be expected to change ways that will affect quarry operators and their employees. Now that he has won, the changes can be expected.
The Inspection
Perlmutter said that when an inspection takes place, it is a good practice to have one company representative devoted to overseeing the inspection. In this way, the company can determine who is taking the inspector around the facility and it will limit any discrepancies that might occur should a different inspector from the initial one become involved in the visit. She said it also allows an opportunity to monitor any conversations that inspectors might have with people on the job, something that is well within the regulator’s scope of responsibility.
Note with whom the inspector had conversations with. Note too the time they had the discussion. She said it is permissible for the guide to know what was said and to write it down for future reference.
“There is nothing prohibiting a correction of information if the employee has errantly given information that is not correct,” she said. “It is important to make the corrections before it turns into a citation. Who it was and what they said is important.”
She went on to say that it is appropriate to ask inspectors what they are thinking in the way of what might be a violation. Ask if they plan to give a citation on that infraction. “You may wish to say to the inspector, ‘What regulation is it that is in violation? We would be happy to correct it, but we aren’t clear on what the violation is.’ You may wish to take out your blue code book and ask the inspector to show you where the violation is,” she said.
“Immediately correct the violations and, if appropriate, challenge later,” she said. “Involve experts if necessary. Never speculate; stick to the facts. Do not admit to any infractions.”
Perlmutter said that after the inspector has arrived, it is reasonable to wonder if a lawyer should be called in on the business’ behalf. In many cases, it is better if a lawyer is not called in initially, giving the operator an opportunity to correct any deficiencies without litigation, she said. To the contrary, she emphasized that if there is a fatality on the jobsite or if community issues are the reason that the agency is involved, then getting legal advice is the better option.
“You want to establish a cooperative relationship with the inspector as a way to raise their level of confidence in you,” she said. “You want to be clear with inspectors from either MSHA or OSHA that you will cooperate with requests for documents if possible. If the inspectors require more than the Mine Safety and Health Act requires, tell the inspectors that they will have to make the request in writing. In this way, both sides are clear and there is no ambiguity about what is wanted. It also adds a layer of accountability.”
Perlmutter said that when it comes to trade secrets, OSHA has regulations to cover this situation, while MSHA does not. Since under MSHA guidelines there are no trade secret rules, some of the information you may not wish to be shared might include what specifically is being mined in a quarry. When dealing with OSHA on the other hand, the agency needs to know if a business is going to be disclosing trade secrets. When this happens, the business should be able to expect confidentiality on the part of the agency.
“You may not want to discuss quantities or things that you do not want your competitors to know about your operation,” she said. “You may want to say to the regulators that you will provide the information, but that you expect them to hold it as confidential information.”
Perlmutter said that every now and then, an inspector might request a demonstration of some activity. She emphasized that whenever that happens, do not conduct a demonstration. She noted that invariably, a demonstrator makes a mistake. That gives the agency cause to find fault with the process.
She said that if the company guide says stay with the inspector, the opportunity to minimize any penalty is best at the time of the inspection. By pointing out any deficiencies in the inspector’s observations at the time, it may reduce or eliminate a citation in the process. An example would be if an inspector believed they saw a need for a person to tie off when working from a height where there is in fact, no danger of that person falling.
Acknowledging the seriousness of a violation or unsafe condition will only increase the company’s exposure to being negligent in that situation.
“Avoid discussing how long a violation might have existed and whether anyone knew about it,” she said. “Do not give false or misleading statements. Do not give a needless rebuttal to a comment or discussion.”
Once the inspection is completed, insist on a closing conference. Ask for copies of samples, photos, and any information that will be helpful. Be sure to discuss how to abate any violations. Try to correct any misunderstandings. Ask questions. Re-emphasizing the need for management to avoid making any admission regarding violations or knowledge of any of the violation conditions, Perlmutter said anything that is said might be used to support their findings rather than being helpful to the company. “Never lie or intentionally mislead the investigator,” she said.
Do we need a lawyer?
Perlmutter summarized briefly by saying that a company might wish to contact legal assistance if it is clear that legal advice is needed during the inspection. This is usually the best decision when there is a fatality or the community is affected in some way. Other reasons to consider legal counsel could be if costly abatement is needed, if there will be high penalties or if there are flagrant violations at a worksite. If there is a serious accident, possible criminal activity, or a regular pattern of violations, a lawyer might be an asset in these cases as well.
While the aforementioned tips only begin to offer help in understanding how to work with OSHA and MSHA when an inspection takes place, Perlmutter reminded PACA members that there are several ways to work with these two agencies. She stressed that often, the nuances of the process require someone with previous experience in that arena for best results.
For more information on how to prepare for OSHA or MSHA contact Perlmutter online at www.crowell.com/Professionals/Willa-Perlmutter or via e-mail at wbperlmutter@crowell.com.
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