Insights | September 2008

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INSIGHTS
The Patton Boggs Safety & Health and Crisis Management Newsletter

September 2008

IN THIS ISSUE

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1. Patton Boggs Launches Unique Podcast Service

2. Congress Opposes DOL Risk Proposal

3. Congress Returns for Brief Pre-Election Session

4. MSHA Proposes Substance Abuse Rule

5. Industry Voices Objections to Belt Air, Refuge Proposals

6. OSHA Proposes Remedy for PPE Rule Violation

7. $1.86M Fine and Crandal Canyon Referred To Justice Department

8. MSHA Enforcement Binge Continues

9. $8.8M OSHA Fine In Georgia Sugar Plant Explosion

10. Chemical Safety Board/NIOSH

A. CSB Investigates Accidents in 2 States, Sets Hearing

B. NIOSH to Hold Safety Summit and Seminar

C. NIOSH DPM Study Withheld

D. California OSHA Issues Silica Rule

11. Asbestos Lawsuits Update

12. Asbestos/DPM Rules Challenged

13. Review Commissioners’ Terms Expire

I. CONGRESSIONAL ACTION

1. PATTON BOGGS LAUNCHES UNIQUE PODCAST SERVICE

This summer, Patton Boggs kicked off a new podcast service to give its clients and friends a quick, big-picture perspective on what’s about to happen in the nation’s capital during the upcoming week.

The podcasts are delivered on Mondays and provide information on the top issues of the week in a timely, concise, and entertaining format. Each podcast covers five areas: Congress, the White House, the Supreme Court, federal agencies, and the campaign trail. They are presented by Kevin O’Neill, a partner in our D.C. office, and are available as RSS feeds or via iTunes.

To learn more or sign up, go to http://www.pattonboggs.com/media/videospcs.aspx.

2. CONGRESS OPPOSES DOL RISK PROPOSAL

Democrats added to the heat of the summer in Washington by vigorously protesting a risk assessment proposal the Department of Labor (DOL) issued last month.

An assessment of risk is required by DOL agencies such as the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) during rulemaking to address occupational health hazards. DOL said the purpose of its initiative is to compile existing best practices related to risk assessment into a single, easy to reference regulation. The proposal would also improve the process and make it more transparent.

Specifically, it would require agencies to issue an advance notice of proposed rulemaking, except in emergencies. It would require a more detailed risk analysis, and would increase transparency by giving stakeholders swift access to risk-related documents.

Democratic leaders and public health advocates assailed the proposal as a thinly veiled attempt by DOL to slow what they see as an already burdensome regulatory process. They charged that the proposal has flaws that would weaken current procedures while failing to offer any validated guidance for them

Because the proposal appeared suddenly in early July on the website of the Office of Management and Budget (OMB), where it had gone for review prior to release, lawmakers accused DOL of “secret” rulemaking. Leading the opposition is Rep. George Miller (D-CA), who, along with Ted Kennedy (D-MA) in the Senate, demanded that DOL turn over information on the identities of any party outside DOL who took part in discussions on the proposal. The Department declined on the grounds that internal agency deliberations are exempt from disclosure.

The two lawmakers also asked that the proposal be withdrawn. For good measure, Miller introduced H.R. 6660, entitled Prohibiting the Department of Labor’s Secret Rule Act, to kill it. The legislation has gone nowhere so far and is not likely to be enacted.

Despite the uproar, DOL released the document on Aug. 29. Interested persons have 30 days to respond. No public hearings are scheduled. Henry Chajet (hchajet@pattonboggs.com; 202-457-6511) is available to assist anyone who wants more information or has an interest in submitting comments.

3. CONGRESS RETURNS FOR BRIEF PRE-ELECTION SESSION

After a month-long recess, lawmakers returned to work Sept. 9 for an abbreviated session before the November elections that likely will focus on energy. It is unlikely to act on pending health and safety bills, including the S-MINER, a bill in the Senate called Protecting America’s Workers Act to strengthen OSHA, and a combustible dust proposal. However, Congress will have to act on the fiscal 2009 budget, and expectations are that a continuing resolution (CR) will pass, intended to last until after the new administration takes office. Adjournment is tentatively set for Sept. 26.

II. REGULATORY UPDATE

4. MSHA PROPOSES SUBSTANCE ABUSE RULE

On Sept. 8, MSHA issued a proposal to require a drug-and alcohol-free workplace in all mines that includes a one-strike violation provision. The proposed rule would eliminate existing regulations in metal/non-metal, and replace them with a uniform set of rules applicable to the entire industry, including contractors.

The measure would prohibit the possession and use of alcohol and drugs on mine property. It would apply to all miners in so-called safety-sensitive positions; i.e., who subject to comprehensive training under Parts 46 and 48 and their supervisors. The proposal has five key requirements: a written policy, employee education, supervisory training, testing, and referral and follow-up for violators.

Drug and alcohol testing would be required during the hiring stage, randomly, for reasonable suspicion, and after an accident. Testing would also be done as part of the referral and return-to-work processes for offenders.

Breath analysis testing would be performed to detect alcohol at or greater than 0.04 percent and urine testing for 10 drugs. With a few minor exceptions, test procedures would follow those required under Department of Transportation rules at 49 CFR 40. Operators would be required to randomly test a minimum of 10% of the eligible population every year.

A provision requires operators to give miners who violate the policy one chance to get free of substance abuse. The provision – apparently included in response to union concerns – is controversial because it runs counter to the zero tolerance drug policy now in effect at many mines. For subsequent violations, the miner could be subject to disciplinary action, up to and including dismissal.

MSHA put the first-year price tag of the proposal at $16 million and $13 million every year thereafter. Public hearings are not scheduled, but have been requested. The Agency held seven public hearings on the subject late in 2005; information from the 65 comments received was used to inform the current rulemaking. Comments will be accepted through Oct. 8. MSHA said it planned to give operators with existing drug-free programs two years to come into compliance. Those without a program would have one year. Contact Henry Chajet (hchajet@pattonboggs.com) or Avi Meyerstein (ameyerstein@pattonboggs.com) for further information

5. INDUSTRY VOICES OBJECTIONS TO BELT AIR, REFUGE PROPOSALS

Industry representatives asked MSHA to reconsider several provisions of a belt air rule it issued in June. The proposal would require conveyor belts in underground coal mines to meet MSHA’s Belt Evaluation Laboratory Test. Operators of Atmospheric Monitoring Systems (AMS) would have to be trained and demonstrate proficiency. The draft rule would set levels for methane and respirable dust in belt entries, require airlocks between entries under specified conditions, standardize tactile signals on lifelines, and add other new equipment and maintenance requirements.

Operators questioned the need to take action when methane levels in belt conveyor entries fall between 0.5 and 1 percent, and objected to smoke detectors, which have been shown to produce false alarms.

In other objections, industry commenters said:

training record retention requirements should be standardized to one year;
language must be clarified in provisions dealing with examination, testing and inspection of sensor and warning device systems, repair or replacement of malfunctioning belt conveyor components and accumulations of non-combustible materials in belt entries;
tactile signals on lifelines should be simplified; and
provisions should be deleted that require notations of airlock doors on ventilation plans as well as notations for air velocities and pressure differentials that do not meet requirements.

The rule addresses recommendations made by a belt air study panel formed based on a MINER Act mandate. MSHA faces a congressionally-mandated deadline of Dec. 31 to complete this rulemaking. MSHA put the first-year cost of the proposal at roughly $66 million. Operators would have to spend another $52 million annually to comply.

After the rule was proposed in June, Rep. George Miller (D-CA) issued a statement saying it did not go far enough because it did not mandate fire-resistant conveyor belts in underground metal/non-metal mines. Miller has included such a provision in the S-MINER bill.

The Agency’s notice of proposed rulemaking (NPR) on refuge alternatives received a chilly reception from, among others, the National Mining Association (NMA), organized labor, and the State of West Virginia, which has already mandated shelters in its underground coal mines.

NMA called on MSHA to delay a final rule until further studies are conducted of the capability of refuges to save lives in an emergency. “However unpalatable and politically difficult this might be,” NMA said, “we urge the agency to defer final action on this NPR until these units have been thoroughly tested, including human-subject testing, in the underground environment.” The organization said it feared units might fail to provide life-support during an emergency.

Studies have not been done to determine the ability of miners to withstand conditions inside shelters for long periods. Only simulated studies performed by NIOSH are presently available to inform MSHA’s rulemaking.

NMA opposed a provision that would require each sheltered miner to have 15 square feet of floor space and 60 cubic feet (CF) of total volume. NMA submitted a study by a Penn State professor, who recommended MSHA’s limits be cut in half based on his review of the literature. If this provision stands, it likely would mean that more shelters would be required.

MSHA has estimated total first-year costs at $102.6 million and $43.3 million after that.

West Virginia said the provision is impractical in low-seam mines and in operations where the shelters must be moved frequently. On the other hand, the United Mine Workers (UMW) spoke in favor of the provision, but asked that the volumetric requirement actually be increased to 85 CF.

West Virginia also took issue with the refuge alternative that would allow miners to construct a shelter in an emergency from materials cached in the mine. Officials complained that this amounted to little more than a barricade, and thus would be similar to the ineffectual barrier put up by trapped miners at Sago in 2006. Eleven miners died after carbon monoxide seeped into their make-shift enclosure. The UMW also vehemently opposed this provision.

The State also found fault with MSHA’s proposal to require a shelter within 1,000 to 2,000 feet of the working face. The requirement in West Virginia is within 1,000 feet. West Virginia also said its shelters are designed for a maximum occupancy period of 48 hours, not the 96-hour requirement in MSHA’s proposal. Miners are unlikely to survive more than 41 hours after an explosion or fire, officials there argued.

The 60-day comment period closed Aug. 18 and included four public hearings. MSHA was directed by Congress in the 2008 appropriations bill to enact a rule on refuges by the end of this year and is expected to do so. Under S-MINER legislation, a study would be required to determine if the rule should be extended to gassy metal/non-metal mines.

6. OSHA PROPOSES REMEDY FOR PPE RULE VIOLATIONS

A seemingly innocuous OSHA proposal the agency said is designed to clarify its citation policy on personal protective equipment and training has gotten stakeholders up in arms.

“The agency is proposing to amend its standards to make it unmistakably clear that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation,” the Agency said in a Federal Register filing Aug. 19. The action would apply to OSHA’s general industry, maritime and construction standards.

OSHA said the changes are intended to provide clearer notice of the nature of the employer’s duty under existing provisions. In addition, the proposal aims to address legal interpretations which have held that the language of some respirator and training provisions does not support per-employee citations and penalties. The changes apply to relevant sections of all OSHA health and safety regulations.

The agency said the action is in keeping with its long-standing policy, but that it was proposing the clarifying language to achieve greater consistency in the regulatory text of the various respirator and training provisions.

Stakeholders, especially those in the construction industry, beg to differ. An association representing the plumbing, heating, and air-conditioning industry called the proposal “complex,” and said it presented “a number of significant legal and cost issues” in need of analysis. The group echoed a chorus of requests from numerous other associations, which have called for an extension of the comment period and public hearings.

The issue became a legal matter after OSHA cited a Texas company for violating the respirator and training provisions of its construction industry asbestos standard. OSHA found that the company had failed to provide respirators and training to eleven asbestos removal workers and thus issued citations on a per-employee basis.

In 2003, a divided Occupational Safety and Health Review Commission, citing the regulatory language, threw out all but two citations, one for violating the respirator requirement and the second for a training requirement infraction. A divided Court of Appeals sided in part with the Commission.

In the notice, OSHA said that when an employer commits multiple violations of a single standard or regulation, the agency may either group the violations and propose a single penalty or propose a penalty for each discrete violation. Although “grouping” is the more common method, OSHA said it proposes separate “per-instance” penalties when “the resulting heightened aggregate penalty is appropriate to deter flagrant violations and increase the impact of OSHA’s limited resources.”

OSHA set September 18 as the close of the comment period. The agency has yet to announce a decision on the stakeholder requests. Contact John Austin (jaustin@pattonboggs.com, 202-457-6167) for more information.

II. ENFORCEMENT

7. $1.86M FINE AT CRANDALL CANYON AND CRIMINAL REFERRAL

MSHA referred the findings of its accident investigation into the Crandall Canyon underground coal disaster to the Justice Department for potential prosecution. The referral followed release of its report in July, which cited the mine operator Genwal Resources, Inc. and its engineering consultant. Six miners and three rescue workers died in separate coal outbursts at the Utah mine the August 2007.

MSHA fined Genwal $1.34 million for several alleged violations the agency said contributed to the accident. Genwal received another $296,664 in fines for 11 additional non-contributory alleged violations. MSHA also fined the engineering consultant $220,000. Meanwhile, a report by an independent investigation team put together by the Labor Department was highly critical of MSHA’s performance at the mine, and made 81 recommendations for change. MSHA agreed with most of them and said it would begin efforts to comply or had already done so.

8. MSHA ENFORCEMENT BINGE CONTINUES

MSHA is writing citations and levying fines as never before. Through the first half of 2008, the agency issued 103,329 citations and orders and fined operators $90.2 million. The amount is substantially more than the all-time high of $74.4 million levied in all of last year and about 2½ times the total in 2006.

The agency is also getting tough on operators who delay paying fines. Last month, the agency trumpeted its success in securing payments totaling more than $225,000 from a Utah coal operator and two others in Kentucky who had been delinquent for more than 18 months. It also secured payment of a $342,000 fine in the 2006 Kentucky Darby tragedy.

When he came to MSHA as Assistant Secretary in 2006, Richard Stickler pledged to get tough on mine operators who violate mine safety regulations. Stickler has kept his word—with a vengeance.

Stickler expanded the application of the $220,000 “flagrant” violation penalty established by the MINER Act. He also dusted off the previously unused “pattern of violations” and established a data analysis system for its application. Over the past 15 months, dozens of operators have gotten letters warning them they are possible pattern violators who could receive closure orders for each significant and substantial violation unless they create and successfully implement a violation prevention program. He has also presided over the largest civil penalty increase in the history of the Mine Act.

In addition, in February MSHA effectively cut off an informal avenue for resolving disputes by advising its District Managers to forego safety and health conferences except for the most serious alleged violations. That limited operators’ ability to seek redress outside the legal arena for most violations and along with the penalty increases has led to a skyrocketing caseload at the Federal Mine Safety and Health Review Commission. Through Sept. 6th, 8,338 cases had been filed since the beginning of the fiscal year —more than double that of the year before.

9. GEORGIA SUGAR PLANT EXPLOSION DRAWS $8.8 M OSHA FINE

Expressing outrage over what he termed “a complete disregard for its employees’ safety,” OSHA chief Ed Foulke announced an $8.8 million fine against a Georgia sugar refiner and two affiliates over an accident in February. The penalty is the third largest in OSHA’s history.

The explosion and fire at the Imperial Sugar Co. plant in Port Wentworth killed 14 workers and injured more than 60 others, many seriously. The fines covered alleged violations there and at a second Imperial operation in Gramercy, Louisiana. The accident is believed to have been caused by accumulations of combustible dust, which OSHA identified as a concern at both plants.

The blast reverberated all the way to Washington, where a congressional panel convened hearings, and then followed up with a bill that would require OSHA to issue regulations to control combustible dust in American workplaces. H.R. 5522 passed in the House and awaits Senate action.

IV. OTHER SAFETY AGENCIES

10. CHEMICAL SAFETY BOARD/NIOSH

A. CSB Launches Investigations into Accidents in 2 States, Sets Hearing

The Chemical Safety Board (CSB) has begun investigations of accidents in West Virginia and Wisconsin that have claimed four lives.

On Aug. 28, a 4,000-gallon waste chemical storage tank blew up at the Bayer CropScience plant in Institute, WV, killing one person and injuring another. The incident occurred in a part of the plant used to make carbamate pesticides.

Three people died and a fourth suffered minor injuries in another storage tank explosion. It occurred July 29 at the Packaging Corporation of America corrugated cardboard mill in Tomahawk, WI, about 40 miles north of Wausau. The accident occurred as workers were welding a flange fitting on top of an 80-foot high storage tank, which contained recycled water and paper fiber.

The CSB will hold a public meeting September 25 to present the results of its investigation into a propane explosion at the Little General Store in Ghent, West Virginia. Four people died and five others were seriously injured when propane vapors from a storage tank ignited and exploded.

B. NIOSH to Hold Safety Summit and Seminar

The National Institute for Occupational Safety and Health (NIOSH) held a safety summit for small coal mine operators Sept. 17 at the Chief Logan Lodge in Logan, West Virginia. Topics included bumps, refuges, mine seals, communications, rescue and self-contained self-rescue devices (SCSRs). Workshops on how to comply with Kentucky and West Virginia coal safety regulations were features of the event.

NIOSH will also hold a seminar on safety and health interventions in mining as part of MINExpo 2008 in Las Vegas. Ten topics, including noise, methane and diesel control, and lower back pain prevention, will be presented in 15-30 minute segments. The seminar will be held twice, during the morning of September 23 and again in the afternoon of September 24, both in room N226 at the Convention Center.

C. NIOSH DPM Study Withheld

NIOSH has refused to release a ten year old research study of the health effects on miners of exposure to diesel particulate matter (DPM). The study of 14,000 miners, done in collaboration with the National Cancer Institute, is considered a landmark effort that was designed to provide definitive information on the effects of diesel exhaust.

Under a court-ordered agreement set up more than seven years ago, researchers are required to submit draft reports on the study, publications, draft results and risk notification materials to the House Education and Labor Committee, which in turn ordered NIOSH to submit the study materials to the MARG coalition and the Steelworkers union for review. Former NIOSH Director John Howard told the NIOSH Board of Scientific Counselors in April he expected the study to be completed by the end of this year. Yet, NIOSH now claims that the study is not yet complete, even though MSHA was briefed on the study results, which were described as not supporting the MSHA risk assessment underlying its diesel exhaust exposure limits.

The court agreement reflects the controversy that has surrounded the research effort as well as a burdensome DPM regulation issued by MSHA in 2001. That regulation has been the subject of litigation from mining interests which continues to this day. Patton Boggs has been closely involved since the very beginning through its representation of the Mining Awareness Resource Group (MARG). Contact Henry Chajet (hchajet@pattonboggs.com) 202-457-6511 for more information.

D. California OSHA Issues Silica Rule

California OSHA has released a rule requiring the state’s construction industry to use dust reduction methods when powered tools are used to penetrate concrete or masonry materials. The rule is aimed at controlling worker exposures to airborne crystalline silica.

The regulation identifies water and vacuum systems as control methods. However, controls are not required if the operation does not produce exposures above established limits, which include 0.1 mg/m³ for respirable quartz and 5 mg/m³ for respirable dust. Exceptions were also carved out for certain types of roofing and siding work and emergencies. The regulation includes an annual training requirement for employees and supervisors. A spokesman said the rule, which was approved August 21, is expected to go into effect in about 30 days.

V. COURTS

11. ASBESTOS LAWSUITS UPDATE

Asbestos lawsuits are up in tort-friendly Madison County, Illinois. As of August 27, 383 asbestos claims had been filed. The figure represents half of all cases filed in the Third Judicial Circuit’s L Division.

If the trend continues, the number of filings will surpass the 455 cases that were brought in the court last year. Asbestos cases are reportedly up nationwide as well, but no substantiating information was immediately available.

Lawyers attribute the increase to a number of factors, including public education through lawyer advertising, increased testing for mesothelioma, and improved diagnosis of this disease. More and more plaintiffs are alleging secondary exposure, most from laundering the clothing of individuals exposed first-hand.

One such lawsuit is underway in Tennessee. The state Supreme Court recently ruled that aluminum maker Alcoa can be sued for the death of a former worker’s daughter, who died at age 25 from mesothelioma. The family is seeking $20 million in compensatory and punitive damages.

12. NEW ASBESTOS, DPM RULES CHALLENGED

Litigation continues in mining industry lawsuits against MSHA over the agency’s final asbestos rule and its final exposure limit for diesel particulate matter (DPM).

MSHA’s asbestos regulation released in February sparked two industry lawsuits. Industry petitioners complained that MSHA’s regulatory language failed to specify that the agency did not intend to regulate non-asbestiform cleavage fragments.

Another issue involves the rule’s testing and analytical requirements. Henry Chajet of Patton Boggs, who represents one set of plaintiffs, said the organizations were seeking judicial redress “because the testing and analytical methods required in the final rule can provide inaccurate results.” Negotiations are underway to clarify the rule.

Another pair of lawsuits were filed in July following MSHA’s 11th hour decision not to engage in rulemaking to set a conversion factor for its 160 µg/m³ permissible exposure limit for DPM. Instead, in a notice in May, the agency announced a complicated sampling and computation procedure designed to minimize sources of carbon interferences that could falsely elevate compliance sample results.

Industry objected because the move broke a promise the agency had made to a judicial panel in a previous lawsuit that the judges had relied on in part in their ruling. The agency had committed years ago to the rulemaking in a DPM settlement agreement with industry, and had repeatedly included the promise of rulemaking in its regulatory agenda.

The litigation was filed in two separate appeals courts, but may be consolidated.

Contact Avi Meyerstein (ameyerstein@pattonboggs.com) for further information.

13. REVIEW COMMISSIONERS’ TERMS EXPIRE

Operators seeking their day before the Federal Mine Safety and Health Review Commission will have to wait. The Commission lost two members, and with them a quorum, when their terms expired August 30. President Bush had nominated Michael Young and Mary Lucille Jordan for re-appointment before their terms ended, but their confirmation has been stalled in the Senate. That leaves just two remaining commissioners on the 5-member body, Chairman Michael F. Duffy and Robert F. Cohen, Jr. Without a quorum the Commission cannot render decisions. No action is expected on the nominations before the fall elections. So it’s anyone’s guess when the Commission will be back in business.

The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government environmental, health, and safety agency here and in many foreign governments around the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, or John Austin (jaustin@pattonboggs.com) at 202-457-6167

Important Note: This newsletter does not constitute legal advice and counsel should be consulted regarding specific factual situations which will determine the compliance advice applicable to any particular question regarding the subject matter. If you would like additional information or advice and counsel on training, compliance or audits, please let us know.

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