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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 [email protected]
Ralph Burnham & Kelly Ratliff Montgomery, Rennie & Jonson 513-241-4722 [email protected] [email protected]