OCTOBER 2003

INSIGHTS is Patton Boggs' environmental, health and safety newsletter, written for clients and friends of the firm. Please send us your comments and forward INSIGHTS to anyone that might be interested. If you provide us with e-mail addresses, corrections or deletions, we will adjust the distribution list. If INSIGHTS was forwarded to you by someone else or you are reading it online, click here to subscribe online.

Table of Contents:
 

1. OSHA’s New Billion Dollar Silica Rule—Fuel For The Silica Lawsuit Epidemic? 

At last week's “Silica Litigation Conference” in Atlanta, a plaintiff’s lawyer observed:

“The new OSHA rulemaking vindicates the 1974 NIOSH document that called for a 50% reduction in the exposure limit and extensive controls. The industry knew all along the rules were inadequate.” 

Whether he had advance access to the release this week (for small business review) of a proposed billion dollar OSHA silica rule is unknown. But the plan to use the new OSHA proposal and NIOSH (and ACGIH), to support the massive growth in silica lawsuits is obvious. 

Given that silica is the most common mineral on earth and used in thousands of applications in dozens of industry segments (including almost all construction, glass, tile, brick, cement and concrete, metal foundries, mining, electronics, and agriculture), the plaintiff's bar has targeted a substance with an endless number of potential claimants and defendants. 

In the last month, several newspapers, including the Wall Street Journal, the NY Times, and last week, the Clarion Ledger of Jackson Mississippi, chronicled the silica lawsuit epidemic. On October 19, the Mississippi paper announced: “More than 17,000 plaintiffs (in Mississippi alone) claim to have incurable lung disease.” 

The paper reported that US Silica had three times as many lawsuits this year as last year, and 164 times more suits than six years ago. It also reported that one 62 year old plaintiff (of the 4,200 plaintiffs in a recent case) said he "was diagnosed in a mass screening... but couldn’t say for sure he had any symptoms." The same screening company diagnosed him with asbestosis seven or eight years ago for which “he received about $10,000 from that suit.” He worked for 28 years for the railroad and “the silica dust was there.” 

The recent newspaper articles include quotes from the National Industrial Sand Association (NISA) and its members, with NISA explaining the history of silica disease: "hundreds of men 'dying like flies' in the 1930s and a dramatic drop in disease since then... with the use of masks and other devices silicosis 'has largely gone away' and 'is becoming more of a radiology curiosity'.” 

Whether the NISA press initiatives help emphasize the need for reform or inspire further suits is yet to be seen. But one result of their efforts is certain: industry representatives and OSHA have accepted their recommendation to begin rulemaking. The recommendation is viewed by some as a misdirected attempt to “level the playing field,” or create defenses to the suits they face by trying to impose or justify mandates on others. 

On October 23, OSHA released a proposed silica rule for small business review, which is the first step in the rulemaking process. The rule would mandate engineering controls such as wet and dry dust controls, vacuum systems, ventilation, and barriers and booth; pre-employment and repeat medical exams; restricted and posted work areas; a designated silica control person; air sampling; respirator use and programs; prohibition of silica sand for certain practices and consideration of alternatives for others; protective work clothing; housekeeping and hygiene practices; and extensive records. 

The proposal also announces that OSHA is considering reducing the current silica exposure limit from 100 to 50 micrograms per meter cubed of air and establishing an action level for all of the mandates at ½ of the limit, if the limit stays at 100 or is reduced to 75. 

There are dozens of industries impacted by OSHA’s proposal. According to OSHA there are almost 700,000 small construction companies impacted, including: land subdivision and development; residential and non residential building and construction; highway, street, bridge, and tunnel; other heavy construction; plumbing heating and AC; painting and wall covering contractors; masonry, drywall, insulation, tile; carpentry and floor; roofing, siding and sheet metal; concrete; water well drilling; and other special trades. 

OSHA estimates that the rule could cost these construction industry segments alone up to $654,615,738, thus the billion dollar characterization is based on far more industries impacted and generally low OSHA cost estimates.

It is ironic that all of these developments are taking place in the context of a 2002 NIOSH report that begins with a graph showing silica related deaths down from 1,800 in 1968 to less than 200 in 1999. Given that many silicosis cases take years to develop, the 30-year trend of continuous declining deaths implies: 

1. silica disease is on the verge of elimination with current laws and practices; and 
   

2. the relatively small number of deaths reported for the most recent years were probably caused by the higher exposures of years ago.

Of course, one silica related death is one too many, but the OSHA proposal poses significant policy questions:

1. Is the OSHA rule needed? 

2. Will it prevent even one silica related death?

3. Will the OSHA rule accelerate the litigation epidemic and become a tool for plaintiffs’ lawyers?

4. Is the rule affordable in these difficult economic times?

5. Is the OSHA proposal feasible?

6. Is there a better, more effective use of government resources? 

An interesting data set is OSHA’s history of silica sampling results, which show a significant percentage of results in excess of the current OSHA 100 microgram limit, even while silicosis deaths continued falling. This reinforces the protective nature of the current OSHA rule, based on an old ACGIH TLV intended to be protective for a working lifetime and adopted before recent litigation demonstrated that newer TLVs (like the basis of the new OSHA proposal) were suspect due to conflicts of interest. 

The OSHA data also suggests that a far better use of resources would be to step up OSHA enforcement for recalcitrant employers and massively increase assistance for employers dedicated to protecting employees, but in need of help, particularly small employers or those with Hispanic workers where communication, training, and a lack of bilingual foremen can be a serious impediment to employee protection. OSHA needs a new focus. 

Patton Boggs is forming the Reform OSHA Coalition and invites firm clients and friends to join us in an effort to bring reason to this debate. For further information, participation in our upcoming Washington DC meeting, or regular updates regarding this matter, call Henry Chajet (202-457-6511) or David Farber (202-457-6516) or email at hchajet@pattonboggs.com or dfarber@pattonboggs.com.

2.  Respirator Lawsuits Expand

The state of West Virginia filed a lawsuit in October against 3M, MSA and American Optical, seeking to recover black lung program compensation costs caused by respirator failures, the negligence of the manufacturers, and their actions to hide the inadequacies. The case was filed in state court by the West Virginia Attorney General, who was joined by several private lawyers from West Virginia, Texas and Florida. However, the matter was transferred to federal court. The case may provide an interesting window on the government’s respirator approval program, its use by the industry, and the requests for liability protection legislation by respirator manufacturers. While the respirator manufacturers have been sued in asbestos and silica claim cases, this is believed to be the first state claim against them. 

3.  Toxic Release Inventory Changes Possible

Since the beginning of the EPA’s Toxics Release Inventory, the centerpiece of the agency's right-to-know programs, the mining industry has been identified as releasing more “pollutants” into the environment than any other industry. This characterization of the industry is unfortunate because it provides a false picture of the industry’s releases, placing undue scrutiny on the mining companies. The fact is that many of the “pollutants” that must be reported by mining companies are not released to the environment. Many of the reported toxic chemicals are tied up in waste rock placed in properly designed storage areas and not released into the environment. There may be some relief in sight as the EPA is now studying ways to ease the reporting requirements.

4.  Reclamation: Destroy Archeological Site to Meet Reclamation Demands

One of the richest records of life 300 million years ago may soon be lost due to draconian enforcement of the mine reclamation laws. Gray shale uncovered during the mining of coal in Alabama contains thousands of preserved footprints of amphibians and reptiles that lived millions of years before the dinosaurs. These fossils include some that have never been previously documented. 

Three years ago, with reclamation of the mine already under way, a high school teacher leading a field trip discovered the fossils. Under the Surface Mining Control and Reclamation Act, the coal company must restore the landscape to its approximate original contours. Complying with the law will require reburial of fossil-rich shale that was, before the mine opened, 100 feet below the surface. The coal company has appealed the state-ordered reclamation, but the appeals process is due to run out in October. 

The company, which has been aiding the paleontologists' collecting efforts, is biding its time, waiting for a decision by the state mining commission that could come in the next few months. To provide more time for collecting, a company officer said "Personally, I'd like to see the site preserved, but an order is an order. It's going to take somebody pretty high up to stop it." U.S. Rep. Robert Aderholt (R-Ala.) has introduced legislation that would allow the coal company to donate the land to the Department of the Interior to exempt it from reclamation requirements. 

5. MSHA Issues Emergency Coal Mine Evacuation Procedure Regulation

New Department of Labor regulations governing emergency evacuation procedures at the nation’s coal mines became effective September 9. MSHA determined that new regulations were required to ensure that in the event of an accident in an underground coal mine, personnel were on hand and prepared to carry out an emergency evacuation of mine personnel. The rule applies only to underground coal mines and does not impose any new requirements on operators of underground metal/nonmetal mines.

The new rule amends 30 C.F.R. part 75 and revises the annual refresher training requirement. One provision adds a new requirement that procedures be established to address the need for an emergency evacuation of the underground. The second section sets out detailed requirement for firefighting personnel required at each underground coal mine. Part 48 MSHA training regulations were amended to require annual refresher for coal miners to include the new rules. You can find the text of the rule, with MSHA’s comments, at http://www.msha.gov/REGS/FEDREG/FINAL/2003finl/03-22748.htm. A summary is provided at the end of this newsletter. 

6.  MSHA Special Assessments 

MSHA recently issued a guide to how it conducts special assessments for alleged violations of the Mine Safety and Health Act. This guide can be found at the MSHA website.

The Mine Act authorizes civil penalties under section 110. MSHA proposes penalties for violations under 30 CFR Part 100 on the basis of the following six statutory criteria: 

1. The appropriateness of the penalty relative to the size of the operator's business; 

2. The operator's history of previous violations; 

3. The operator's negligence; 

4. The gravity of the violation; 

5. The "good faith" of the operator in abating the violation; and 

6. The effect of the penalty on the operator's ability to stay in business.

In July 2003, the Secretary of Labor approved MSHA's request to publish new guidelines for computing special assessments. These guidelines make the special assessments process more transparent to the public by disclosing a point system for computing special assessment penalties. 

The purpose of these guidelines is to help MSHA propose more consistent special assessment penalties for similar violations, while allowing the special assessor some flexibility to adjust the proposed penalty for a specific violation, if warranted. The guidelines also clarify for mine operators and other interested persons MSHA's basis for determining proposed special assessment penalties.

7.  OSHA ASBESTOS CHECKLIST

OSHA has developed a checklist whereby an employer may make a self examination on compliance with asbestos standards. An estimated 1.3 million employees in construction and general industry may face significant asbestos exposure on the job. Heaviest exposures occur in the construction industry, particularly during the removal of asbestos during renovation or demolition. Employees are or may be exposed during the manufacture of asbestos products (such as textiles, friction products, insulation, and other building materials) and during automotive brake and clutch repair work. 

The checklist can be found at: http://www.osha.gov/SLTC/asbestos/checklist.html

8.  MSHA Coal Dust Monitoring Addressed by Congress

The pending Department of Labor appropriations bill, HR2660, is being considered by a conference committee. Both the House and Senate versions of the bill contain a provision that would require MSHA to re-propose a rule on respirable coal dust, incorporating the use of personal dust monitors, if current studies show that they can be effectively applied in a regulatory scheme. This is the statutory language:

SEC. 108. (a) FINDINGS—Congress finds that--

(1) it is projected that the Department of Labor, in conjunction with labor, industry, and the National Institute for Occupational Safety and Health, will be undertaking several months of testing on Personal Dust Monitor production prototypes; and

(2) the testing of Personal Dust Monitor prototypes is set to begin (by late May or early June of 2004) following the scheduled delivery of the Personal Dust Monitors in May 2004.

(b) RE-PROPOSAL OF RULE—Following the successful demonstration of Personal Dust Monitor technology, and if the Secretary of Labor makes a determination that Personal Dust Monitors can be effectively applied in a regulatory scheme, the Secretary of Labor shall re-propose a rule on respirable coal dust which incorporates the use of Personal Dust Monitors, and, if such rule is re-proposed, the Secretary shall comply with the regular procedures applicable to Federal rulemaking.

The legislative language follows an unusual debate on the House floor that included personal attacks by West Virginia Democratic Representative Nick J. Rahall, against both the Assistant Secretary of MSHA and Dr. Charles Norwood (R-Ga), the Chairman of the House Subcommittee on Worker Protection, that resulted in House vote against Rahall on a proposed appropriations prohibition for MSHA. 

9.  MSHA / State of Pennsylvania Announce No Charges in Quecreek Accident 

Last year the country was waiting breathlessly for the outcome of an incident in which nine coal miners were trapped underground when water broke into their mine from an adjacent, abandoned mine. The joyous recovery was followed by a year-long investigation by MSHA and a statewide grand jury. Working with federal investigators, the Pennsylvania Attorney General and the United States Attorney have determined that no criminal charges will be filed against anyone involved. They found insufficient evidence that anyone involved in the permitting or operation of the Somerset County mine had acted recklessly, or that they had knowingly or willfully violated safety standards. The accident was characterized as a "failure of regulation." The accident was blamed on inaccurate maps of the abandoned, flooded mine next to the Quecreek mine. The July 24, 2002, accident occurred when miners, thinking they were still 300 feet away from the old mine, broke into it, unleashing a torrent of water that flooded the Quecreek tunnels. We anticipate continued new programs by MSHA, as well as the Office of Surface Mining, to address mine water and mapping issues.

10.  MSHA Toolbox Talks For Small Mines

MSHA's Small Mines Office has developed a series of weekly ToolBox talks that can be used by small mine operators and others to hold safety and health discussions for their employees at their mining operations. The Small Mines Office has developed these ToolBox talks in consultation with members of the mining community. The first installment of 10 weekly suggested safety talks are listed below. The Small Mines Office hopes these ToolBox talks will help small mine operators and their miners keep safety and health at the forefront of their daily and weekly activities. The text of these talks can be found on the MSHA website: http://www.msha.gov/smallminesoffice/toolbox/tboxtalks.htm

1. Our Safety & Health Goals

2. Hard Hats, Eye Protection, and Protective Footwear

3. Speed Limits, Mobile Equipment, and Riders

4. Lock Out/Tagout Procedures, and Safety Belts in Vehicles, Guardrails, Handrails, & Steps

5. Heat Exhaustion, Housekeeping, and Overhead Power Lines

6. Guards, Lifting, and Report Injuries

7. Teamwork and Hearing Protection

8. Attitude, Respirators, and Skin Rashes

9. Fall Hazards, Safe Work Procedures, and Short Cuts

10. Flammable Liquids and Fire Extinguishers

11.  MSHA Inspection of Impoundments

With the increased emphasis placed on impoundment safety, MSHA recently issued a Procedure Instruction Letter (PIL) to its Metal and Nonmetal managers, supervisors and inspectors whose duties include inspection and enforcement activities at impoundment sites. This letter can be found at the MSHA website.

The instructions recommend the use of a specified form, attached to the letter, during inspections at impoundments. The PIL requires field office supervisors to ensure that thorough inspections and associated notes address all critical items of an impoundment inspection. Among other items, the PIL instructs that impoundments be thoroughly inspected on a biannual basis if possible. The district manager shall require additional inspections at high hazard potential sites, sites undergoing major or critical construction phases, or where other potentially hazardous conditions are identified. Field office supervisors are instructed to ensure that all areas of an impoundment are inspected. They should also ensure that observations made by inspectors during those activities are noted on the inspection form or in the inspector's field notes. Further, supervisors must forward the form or field notes to the appropriate district personnel for any necessary follow-up action or for tracking purposes. 

12.  Enforcement

OSHA Trenching—OSHA proposed a fine of $510,750 after inspections along a petroleum pipeline found inadequate cave-in protection inside trenches. The pipeline contractor was cited for 14 alleged safety and health violations, including eight willful violations for failure to protect employees from cave-ins at six separate trenches, allowing water accumulation in trenches, and placing excavated soil close to unprotected trench walls. The inspection is said to have revealed that various trenches were not protected against collapse, nor were there sufficient ladders or escape ramps inside. 

Further, OSHA inspectors also witnessed workers in ankle deep water in some trenches. In addition to eight alleged willful violations, OSHA cited the company with six alleged serious violations for hazards associated with arc welding, means of egress from trenches, training for work in trenches, defective hoisting equipment, and no reflective gear for workers near highways. The alleged willful violations carry proposed penalties of $490,500, while a $20,250 penalty is proposed for the alleged serious violations.

OSHA Crushing Hazard—OSHA proposed penalties of $63,000 against a manufacturer in Massachusetts for 19 alleged serious violations of OSHA regulations following the death of an employee who was crushed by a falling stack of pallets loaded with concrete blocks. In addition to the improper stacking of the pallets, the company was cited for failing to adequately safeguard workers against excess noise levels, overexposure to crystalline silica and other safety and health hazards. 

According to OSHA's citations, the company allegedly failed to develop a noise-monitoring program, establish a training program, provide baseline audiograms, provide suitable hearing protectors and enforce the use of hearing protection by employees who were overexposed to noise. The action level is 85 decibels over an eight-hour workday. The company also allegedly failed to implement effective engineering controls and to take other required measures to protect workers exposed to airborne concentrations of silica in excess of the permissible exposure limit. Other hazards found during the inspection included inadequate machine guarding, electrical hazards, missing stair-rail and guardrail, lack of an emergency eyewash station and the use of a damaged wire rope sling.

OSHA Site Specific Targeting—OSHA has proposed penalties of $121,050 against a canning company for alleged failure to protect employees from a wide range of hazards that resulted in citations for 49 alleged violations. The company was cited for the alleged violations following an inspection that began under a program called Site Specific Targeting, in which OSHA targets workplaces with high injury and illness rates.

Forty-eight of the alleged violations were deemed serious, including failure to protect employees against hazards associated with powered industrial trucks, slipping or falling hazards on walking and working surfaces, potential falls from elevated surfaces, improperly guarded machines, material handling hazards, improper electrical wiring, defective hoists and blocked emergency exits. An other-than-serious citation was issued for failing to develop a written respiratory program and provide training for employees required to wear respirators.

OSHA Lead Standard—OSHA and a valve manufacturing company in Alabama have entered into a settlement agreement that involves payment of a $103,500 penalty for safety and health violations and improvement of working conditions. The company admitted to 21 serious and three repeat violations. The company agreed to pay the penalty and to have an outside consultant conduct lead air monitoring for six consecutive months to determine employee exposure and to share the data with OSHA.

OSHA had cited the company for serious violations of its lead standard, fall hazards from fixed ladders and stairways, storage of unsecured material, unguarded machinery, and electrical hazards. Repeat violations involved inadequate lead sampling, insufficient hazard communication with employees and failure to guard loading dock areas.

OSHA Silica—OSHA is fining a New York manufacturer $181,400 for failing to address a wide range of occupational safety and health hazards that could have killed or seriously injured employees, including hazards from falls, unlabeled chemicals, and negative health consequences from overexposure to silica. OSHA cited the company for 24 alleged repeat and serious violations. Ten repeat citations account for $137,900 of the fines. 

These citations address employee overexposure to silica, lack of administrative or engineering controls to reduce silica exposure hazards, fall hazards, uncovered containers of flammable liquids, not maintaining forklift name plates, inadequate machine guarding, electrical hazards, employees wearing inadequate respiratory protection, and unlabeled hazardous chemicals. Fines of $43,500 are proposed for 14 serious citations, including failure to properly maintain overhead lift components, deficiencies involving containers of flammable liquids, paint spray booth hazards, additional machine guarding, electrical and fall hazards, not refitting employees for hearing protection after they sustained standard threshold shift hearing loss, incomplete personal protective equipment assessment, lack of annual confined space rescue drills, over-exposure to total dust and lack of administrative controls or engineering controls, lack of initial determination for lead exposure and shoveling of sand containing lead. 

OSHA Rail Cars—OSHA cited an Alabama company for failing to protect Birmingham plant employees by allowing unsafe work practices which led to the amputation of a worker's leg. The company was also cited for exposing employees to falling, slipping and tripping hazards. OSHA proposed penalties totaling $105,000. An employee climbed onto the first of six loaded rail cars and headed down a hill, using hand-brakes to control the speed of the gravity-driven cars.

As he neared the dump area the wheels locked, but continued to slide. Using hand bars on the side of the first car, he attempted to leap onto the second car and apply the hand brakes, but he fell under the moving wheels, severing his leg. OSHA issued six serious citations with proposed penalties of $30,000 for allowing employees to climb the sides of moving rail cars; for failing to protect workers from fall hazards caused by bent, broken and smashed hand bars, faulty brakes and other damaged equipment, including a system that should have prevented run-away cars. The agency issued two repeat citations with total proposed penalties of $75,000 for exposing employees to slipping hazards on flooring slick with hydraulic fluid, and for fall hazards where guardrails were missing or damaged.

MSHA COAL PROCEDURES FOR CONDUCTING EMERGENCY EVACUATIONS:

• Under the new regulation, the mine operator must designate one particular “responsible person” who is to take charge in the event of a mine emergency involving a fire, explosion or gas or water inundation. The regulation does not require the responsible person to be in a particular place at the mine, either on the surface or underground. The mine operator must identify the responsible person to all of the miners and must let them know before the start of the shift if the designated responsible person changes.
  
  

  • The responsible person is required to have current, up-to-date knowledge of the assigned location and the expected movements of miners working underground, the operation of the mine’s ventilation system, the location of escapeways in the mine, the mine communication system, any mine monitoring system that is in place, and the mine evacuation and firefighting programs.
    
    

  • The responsible person must initiate and carry out an immediate mine evacuation if there is an emergency which presents an imminent danger to miners from fire, explosion or gas or water inundation. If there is an emergency, only properly trained and equipped personnel are allowed to remain underground. According to the Preamble to the rule, in the case of a false alarm or if for some reason the emergency comes under control quickly, the responsible person is also authorized to interrupt the evacuation.
    
    

• Even though the operator is required to designate one person as a responsible person, the rule specifically states that nothing in the regulation should be read to prevent anyone else from warning miners if there is an imminent danger that requires evacuation.

EMERGENCY EVACUATION AND FIREFIGHTING TRAINING:

The new rule requires that underground coal mine operators adopt and follow a mine emergency evacuation and firefighting training program.

• The plan must propose a means of acquainting miners with at least the following four components:
  
  

  • procedures for evacuating the mine in an emergency, when there is an imminent danger due to fire, explosion, or gas or water inundation;
    
    

  • procedures for evacuating all miners not required for the emergency response;
    
    

  • procedures to enable miners, fire suppression equipment and rescue apparatus to be mobilized rapidly and moved to the scene of an emergency; and 
    
    

  • procedures for operating the mine’s fire suppression equipment. The plan should specify how the storage areas for fire suppression equipment will be marked, and how the equipment will be maintained.
    
    

• Under the program, miners must also receive specific instruction on proper evacuation procedures, location and use of firefighting equipment, and the location of escapeways, exists, and routes of travel to the surface.
  
  

• The plan must be submitted to the District Manager of the appropriate Coal Mine Safety and Health district for approval. Any changes or revisions to the plan cannot be implemented without the approval of the District Manager as well.
  
  

• Although it has not yet done so, MSHA says that it plans to publish on its website a model plan that mine operators can use as an example when developing their own emergency evacuation plans.

In addition to the required training program, mine operators must also ensure that:

• At least two miners in each working section on every production shift are proficient in the use and know the location of all fire suppression equipment in their working section.
  
  

• For maintenance shifts, the shift foreman and at least one miner for every five miners working underground must be proficient in using the fire suppression equipment available in the mine. Those individuals must also know the location of the fire suppression equipment in the mine.
  
  

• Every operator who is regularly assigned to a particular machine or device, and every operator who is regularly assigned to a job site no more than 500 feet away and within the direct line of sight of a particular machine or device must be proficient in using fire suppression equipment installed on the equipment.

The regulation also requires that mine operators conduct mine emergency evacuation drills. The drill must consist of a simulation of the actions required by the approved emergency evacuation and firefighting plan. Every miner at the underground coal mine must participate in an emergency evacuation drill no less frequently than every 90 days. 

• The miner operator must certify by signature and date that the required emergency evacuation drills were held. A record of the certification must be kept at the mine for one year and made available on request for review by the Secretary’s authorized representative and by the miners representative.
  
  

• The drill can be conducted at the same time the mine conducts its required escapeway drills.
  
  

• MSHA will accept an unplanned evacuation (for example, a false alarm that requires evacuation) that meets the requirements of a drill as one of the mine’s required drills.

30 C.F.R. § 48.8:

• Finally, MSHA has amended the mandatory underground training curriculum set out in Part 48. Under the new regulation, operators are required to include training on the emergency evacuation and firefighting plans in effect at the mine as part of regular annual refresher training.