Protecting Yourself from Liability:

Before, During, and After the Shot

Jeff TaylorSauls Seismic

& Ralph Burnham

Kelly RatliffMontgomery

Rennie & Jonson

2015 Illinois Mining Institute

The Times, They Are A Changin’

Not normal times in the blasting industry.

Witnessing an increase in claims and litigation against contractors, mining companies, quarry operators, blasting companies and blasters.

Resulting in increased insurance costs and other financial tolls, including delays, downtime, bad publicity, increased citations, fines, administrative costs, higher deductibles and premiums, and out-of-pocket expenses.

Blasting Operations Are Governed By Strict Liability

No matter how careful, blasters are liable for damage CAUSED by blasting.

Both the general contractor and the independent contractor are strictly liable.

Burden of Proof is on the operator and blaster to prove that blasting did not cause alleged damage.

Must overcome people’s inherent fears of blasting and presumptions of damage.

Preparation for Claims & Litigation

Incorporate best management practices into daily blasting operations: Provides a competitive advantage Improves safety, productivity & efficiency Reduces accidents, complaints, claims, and

liability Lessens downtime responding to complaints Reduces overall financial tolls

Overview of important topics to consider when drafting & implementing standard operating procedures before, during , & after you blast.

Typical Blasting Claims Cosmetic / structural damage to homes and/or

buildings: Cracks in concrete Separation of trim Cracks in drywall / plaster Unlevel floors and/or ceilings Mortar joint separations Settlement of foundations

Fly Rock

Well water damage

Landslides / Subsidence

Personal injury / death

Current Trends Increase in Claims: Bad Economy = More Litigation

Mining, Blasting, & Construction Operations

Frivolous Claims One shot over 4,800 feet away resulted in jury trial

Multi-property claims 10-25 homes = norm; 80-90 homes becoming more

common.

Suing Contractor, Subcontractor, & Blasters Personally Blaster in Charge named as defendant

Increase in Public Awareness and Opposition Internet, Social Media, Newspapers, and Blogs

Stricter Federal, State, and Local Regulations More citations, notices of non-compliance, and fines

Protection from Liability How do you protect yourself, and the company,

from liability efficiently and cost effectively?

Standard Operating Procedures are ESSENTIAL!

Should be comprehensive, in writing, and signed by all blasting personnel and management.

Must include detailed, site-specific procedures for:

Before the Shot;

During the Shot; and

After the Shot.

BEFORE THE SHOT Research the area, nearby communities

& site exposures: Nearby utilities, previous opposition to

blasting, previous operations by bad companies, presence of environmental and/or anti-blasting groups.

Create a pro-active Blast Plan that is site-specific.

Blasters & mine management should be involved in drawing up the blast plan.

Blasters and helpers should know all details of Blast Plan.

Incorporate Technology

Advances in available technology help optimize blasting operations.

Examples include: electronic shot reports, GPS coordinates,

seismograph monitoring, aerial mapping, electronic detonators, high wall profiling, enhanced drilling technology, blast and vibration optimization software, and crack displacement monitors.

Reduces risk & potential liability.

Improves efficiency & productivity.

Blast Plan Considerations Pro-Active Community Relations Program

Community meeting(s) before blasting operations

Introductory letters

Internal Limits on PPV and Air Blast Levels 50% of the legal limits (or below)

Pre-Blast / Existing Condition Surveys ALWAYS recommended (may be required) Hiring independent third-party is best option

Emphasis on Blast Records Legible, Accurate, Complete and Organized

Seismograph Records for All Blasts Organized and Quickly Accessible

DURING THE SHOT

Avoid complacency - blasting operations #1 problem!

Site-Specific Blaster Checklists (Laminated & Markers)

Noise and Dust Considerations

Site security, radio communication, trained sentries

Good communication between Driller & Blaster Drill Logs vs Flagging Blaster should observe drilling when possible

Video Recording of Shots & Pre & Post Conditions Must be done well with attention to detail MUTE AUDIO

Review potential causes of elevated readings before next shot.

AFTER THE SHOT Shot Records Completed A.S.A.P.

Before blaster leaves site that day Completeness, Accuracy, & Legibility

Consider second party review Math accuracy, completeness,

legibility Corrections made immediately

Maintaining Records Minimum of 3 years in Illinois Electronic and/or Hard Copies Organized and easily accessible

Blast Records ESSENTIAL

Tell the story of the shot

Provide Critical Information: Location of shot (GPS vs. Grid Map) Location of nearest structure (Name / I.D. #) Distance from closest loaded hole to nearest

structure Amount of explosives per delay

With this information, it is possible to calculate the PPV at any structure and defend a claim.

When a record is incomplete, inaccurate, or illegible, makes it very difficult to defend a blasting claim.

Common ProblemsMissing Information

• Location of shot• Location of nearest structure• Date• Pounds-Per-Delay

Legibility• If the report is impossible to read, it is

useless.• Reflects on the professionalism of the blaster

& company.

Contradictions• Distance v. GPS / Map• Total weight vs. Inventory• Report vs. Seismograph Reading

• Time• PPV• Location

Blast Records Protocol Ensure shot report meets all regulatory

requirements

Missing Information = Automatic Violation

Include Compliance Method

Scale Distance vs. Seismograph

If possible, should comply with both

Emphasis on Completeness, Accuracy, & Legibility

If all the information is on the report, but it is impossible to read, it is useless.

Blast Records Protocol (cont.)

Pounds Allowed vs. Pounds Used

Corroborate expected PPV at the nearest structure with actual PPV reading from seismograph.

Electronic Blast Records - Highly Recommended

Can Eliminate Most Common Mistakes

Information In = Information Out

Complaints All Complaints Must Be Taken

Seriously!

If not, will likely result in claim / lawsuit

Basis for Punitive Damages

Standard Operating Procedures:

Written Documentation - Complaint Form

Consider appropriate adjustments to blast design.

Use Third-Party Consultant(s) as needed.

[COMPANY HEADER] Project/Permit #_______________

BLASTING COMPLAINT FORM

Complaint Received: Date: _________ Time: _______ Time Call Ended: _________ Received By: _______________________________________________________ Complainant’s Name: _________________________________________________

Address: ___________________________________________________________

City: ________________ State: ______ County: __________________________

Zip/Postal Code: __________

Directions to Complainant: ____________________________________________________________________

____________________________________________________________________

Best Time to Call: ______________ Best Number to Use: _____________________

Property Owner: ____Yes ____No

Owner’s Name: ________________________ Owner’s Phone #:________________

COMPLAINT DETAILS

Incident Date: ____________ Incident Time: ____________

Caller Description:

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

Receiver Comments:

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

Alleged Damage: __Yes __No (Do not ask the question, rely on person’s description)

Referred To: _______________________ Date: ______________ Time:___________

Complaint Procedures Good communication and clearly defined roles.

Designate the appropriate contact person.

Notify supervisor(s) / management of complaints.

Respond to complaints promptly.

Be professional and courteous.

Provide them with the number for the regulatory agency.

Document your investigation – photographs /video.

Respond to complainant in writing.

Seismographs Provide accurate PPV readings at the nearest

structure or any point around the blast site.

Best factual and scientific evidence of the vibration levels.

Seismograph readings corroborate the anticipated PPV on the shot report with an ACTUAL PPV READING!

Should be placed at the nearest structure Less than 10 feet from the nearest structure,

with GPS coordinates of exact location.

Installed pursuant to 2009 ISEE Field Practice Guidelines

“The seismograph reading was doctored.”

Experience is Essential If (when), you experience a claim, despite your

best efforts, EXPERIENCE is ESSENTIAL!

You want insurance representatives, consultants, and attorneys who know & understand blasting.

It is important that you respond promptly and correctly to protect yourself and your company.

Provides an advantage from the beginning.

Available 24 x 7 to provide assistance before & after.

CONCLUSION Public Perception

Homeowners & Jurors want to believe blasting is dangerous and causes damage.

Our Perception Blasters are highly trained, certified, and competent. Follow strict federal and state laws designed to

prevent property damage and personal injury.

In the end, the best way to protect yourself and the company from liability: Standard Operating Procedures

Before, During, and After the Shot

Use all available resources: www.isee.org www.explosives.org

CONTACT INFORMATION Jeff Taylor

Sauls Seismic, Inc. 502-682-8196 jeff@saulsseismic.com

Ralph Burnham & Kelly Ratliff Montgomery, Rennie & Jonson 513-241-4722 rburnham@mrjlaw.com kratliff@mrjlaw.com