1. HOUSE TAKES FIRST STEP TO BAN ASBESTOS

A bill introduced in the House to ban asbestos can be expected to have an impact on mines in the Iron Range and aggregate operations in areas of naturally-occurring asbestos.

The bill would ban asbestos in most commercial products.  However, asbestos in any amount would be permitted if it is an integral part of asphalt concrete, Portland cement concrete, or other similarly cemented materials.  In addition, an asbestos level under 0.25% would be permitted in aggregate materials.  Asbestos would also be allowed in taconite pellets or iron ore used to produce them, but not in tailings, waste material, or other byproducts of iron ore extraction.

Another exemption would apply to five other minerals or products containing them if they contain no more than trace amounts of asbestos.  They are calcium carbonate, talc, wollastonite, vermiculite and olivine.  No exemption is allowed if asbestos in any amount is in products containing these minerals if the products are in food or drugs used for human consumption, intended for personal health or cosmetic purposes, made for use by children, or are found in consumer garden products.

Six commercial varieties of asbestos are now regulated under the Toxic Substances Control Act (TSCA).  H.R. 6903 would extend TSCA’s reach to winchite asbestos, richerite asbestos, and all other asbestiform amphibole minerals. 

The economy and elections have stalled action on the legislation this year.  However, expect it to be considered next year.  If passed, its provisions must be reconciled with a similar but less stringent bill that has already passed in the Senate.   Contact Henry Chajet (hchajet@pattonboggscom, 202.457.6511) for more information.

2. SENATE DEMOCRATS URGE ACTION ON DIACETYL

Four Democratic senators have asked the heads of the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA) to take action to protect workers in food flavoring plants from the allegedly harmful health effects of diacetyl.

A recent letter to Labor Secretary Elaine Chao and OSHA chief Ed Foulke, Jr. mentioned new evidence of the dangers of diacetyl, which has been linked to serious respiratory illnesses in some popcorn industry workers.  At least one individual consumer has also been afflicted after eating large quantities of microwave popcorn.  Diacetyl imparts the buttery flavor to the product.  The letter was co-authored by Ted Kennedy (MA), Patty Murray (WA), Sherrod Brown (OH), and Claire McCaskill (MO).

The lawmakers also asserted that OSHA has failed to make significant progress in addressing the alleged hazard since Kennedy and Murray brought congressional attention to the issue last year.  The agency has launched a National Emphasis Program (NEP) and produced guidance materials.  However, the agency has not fulfilled a pledge to issue a proposed rule, and has rejected an appeal for an emergency temporary standard. 

Kennedy and Murray have requested a list of NEP inspections and their outcomes, a timetable for setting a standard, and an analysis as to whether a DOL proposal on risk assessments currently in the works might delay release of a final rule.

II.        REGULATORY UPDATE

3. SETTLEMENT REACHED IN ASBESTOS LAWSUIT

The Mine Safety and Health Administration (MSHA) and firms representing mining companies have come to an agreement in a dispute involving how rock particles called cleavage fragments are treated in MSHA’s new asbestos regulation.

Mining interests brought two lawsuits against the agency in April because they believed language in MSHA’s asbestos regulation did not match the intent expressed in the preamble; namely, that MSHA did not intend to regulate cleavage fragments.  In addition, plaintiffs sought greater clarity in the choice of analytical methods for first-round testing, and asked that transmission electron microscopy be specified for follow-up analysis if initial testing suggested asbestos was present in amounts above regulatory limits.

Under the terms of the agreement, plaintiffs would drop two lawsuits after MSHA published appropriate clarifying language, which it did on November 7. One of the lawsuits was brought exclusively by aggregate interests.  Patton Boggs is counsel to the second set of plaintiffs, which represent several mining sectors.  Contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511) for further information. 

4. MSHA's DRUG RULE: DEVIL IN THE DETAILS

No one seems to object to the need for a substance abuse rule in mining, but MSHA’s proposed drug rule has met with near universal condemnation.

Mine operators are especially critical of two provisions of the rule.  One would give a miner one chance to come clean through a rehabilitation program if the miner tests positive for alcohol or a covered drug or tries to adulterate the specimen or substitute another for it.  Operators say this provision is a step back for safety because it permits a known substance abuser to return to the inherently hazardous mine environment.

Operators also complain that this so-called one-strike policy conflicts with their own drug policies and with substance abuse rules already on the books in Kentucky and Tennessee.  They add that it increases their liability, may run afoul of some labor-management agreements, and is a matter of employment law, not safety law.     

The proposal would cover alcohol and ten substances, five of which are currently illegal plus five prescription drugs.  It would require operators to follow Department of Transportation regulations, which only permit urine testing for the 10 drugs.  However, many operators have added hair and saliva samples to their drug testing protocols.   

Union representatives say they support the regulation, but believe MSHA should set it aside because other health and safety issues in mining are more important.  They also say the agency has not established a need for the rule, and, in support, point to estimates that about 75% of operators now have drug testing programs. 

The rule would cover all mines and would replace an existing regulation in Metal/Non-Metal that bans alcohol and drugs on mine property.  No comparable regulation currently exists in Coal.  It would apply to miners in safety-sensitive positions only.  The proposal would require a written policy; mandatory testing, including random testing; referral for rehabilitation services; and education and training of miners and supervisors.

MSHA issued the rule September 8 and originally called for a 30-day comment period with no public hearings, clearly with the intent to issue a final rule before a new Administration takes office in January.  However, stakeholders raised concerns about due process, leading the agency to schedule hearings and extend the comment period through November 10.  More than 250 oral and written comments have been posted to the docket on the controversial measure. 

5.  MSHA PLANS CHANGES TO SPUR INFORMAL SETTLEMENTS

Faced with a burgeoning number of appeals of its enforcement decisions, MSHA has let it be known it is working on procedures to increase the use of Safety and Health Conferences to try to resolve many contested cases.

In statements to the media and at mining conferences, agency officials have said a Procedure Instruction Letter (PIL) is in development that will allow gravity and negligence determinations to be addressed during informal settlement conferences.  Officials said they would try to incorporate assessments into the deliberations as well, and, to that end, efforts are underway to release most assessments within 30 days.  In coordination with the Federal Mine Safety & Health Review Commission, an effort to reduce paperwork requirements is also ongoing.

An agency official said the PIL could be out before the end of the year or soon thereafter.  He noted that release has been slowed by the need to amend handbooks and conduct training.

Appeals of agency enforcement decisions began to climb dramatically after April 2007 when MSHA issued a revised civil penalty rule that greatly increased most penalty costs.  In February, it caused a stir when MSHA issued a PIL that allowed District Managers the option to conference only citations that involved high negligence and unwarrantable failure.  That directive left operators seeking to exercise their appeal rights with little choice except to initiate formal legal proceedings.  The inevitable result is a court system now overwhelmed with the caseload.    

The official said the February PIL remains in effect until the new PIL is issued.

6.  FINAL RULES COMING ON BELT AIR, REFUGE ALTERNATIVES

Congress has given MSHA until the end of this year to issue final regulations governing belt air and refuge alternatives in underground coal mines.  Both proposals were issued in June.

The belt air proposal would require new conveyor belts to meet a higher flammability standard than now required, beginning one year after the effective date of the rule.  Existing belts would be permitted until replacement is necessary.  Other provisions would require fire prevention and detection in belt entries, standardized tactile signals on lifelines, and District Manager approval of the use of air from the belt entry to ventilate working sections.  The miner responsible for monitoring the mine’s atmospheric monitoring system (AMS) would have that as his or her primary duty and would meet specific training requirements. Annual retraining would be required.

In addition, the primary intake escapeway would be required to have a higher ventilating pressure than the belt entry, airlocks would be erected where high air pressure differentials exist between air courses on personnel doors along escapeways, minimum and maximum air velocities would be set for belt entries, and reduced dust levels mandated in belt entries for mines that use air from the belt entry to ventilate the working section. MSHA estimated first-year costs of the proposal to be $66 million, with another $52 million required annually.

Under MSHA’s proposal for refuge alternatives, operators would have to provide a protected, secure space with an isolated atmosphere that creates a life-sustaining environment for trapped miners when escape is not initially possible during an emergency.    

The proposal allows three types of refuge alternatives. Units are to be positioned between 1,000 and 2,000 feet from the working face and where mechanized mining equipment is being installed or removed.  Refuge alternatives and their components, such as breathable air and harmful gas removal, would be required to sustain persons for 96 hours, or 48 hours if advance arrangements are made for additional supplies from the surface. 

Units would have to meet specific requirements, including 15 square feet of usable floor space and 60 cubic feet of usable volume per person.  The mining industry has vigorously opposed this provision, saying it is unsupported in the literature.  The requirement would also mean there would be a need for more shelters, which run more than $100,000 apiece in first-year costs alone.  Total first-year costs have been set at $102.6 million and $43.3 million annually after that.

Both rules were written in response to the 2006 mining disasters in West Virginia.

7.  DOL MOVES ON RISK ASSESSMENT PROPOSAL

The Department of Labor (DOL) is believed to be pushing ahead with a risk assessment measure that enlivened the political scene in the nation’s capital this summer.

The change would amend internal DOL risk assessment procedures to require regulators at OSHA and MSHA, in particular, to gather and analyze evidence regarding exposures by both industry and job title.  Instead, regulators now look at risk from the perspective of the overall population affected.  In addition, risk assessors usually use a conservative estimate of a working-life exposure as 45 years, but language in the proposal suggests future risk assessments might apply less conservative assumptions.

The proposal would also require DOL agencies to issue advance notices of proposed rulemaking, except when emergency rulemaking is undertaken.  Several steps to improve transparency in rulemaking were also put forth.

The proposal was assailed by Democratic congressional representatives and public health advocates.  They charge it was done in secrecy by and for the benefit of corporate interests, has no useful purpose except to slow down an already-overburdened regulatory development process, and is being rushed through without adequate public comment before the end of the Bush Administration. 

The outcry erupted in July when someone noticed it was under review at the Office of Management and Budget (OMB).  A proposed draft was leaked, and demands followed for copies of meeting minutes and participant lists.  A bill to kill the initiative was introduced in the House even before the measure was issued on August 29 and a congressional hearing was held.   

Undeterred by the tempest, DOL has refused to withdraw it and appears to be moving it forward.  However, as of this writing, the final product had not arrived at OMB, where it will get one last scrubbing before a likely release prior to Inauguration Day.

8.  FOULKE LEAVES OSHA

OSHA Assistant Secretary Ed Foulke, Jr. has left the agency after 2½ years for employment in the private sector.  Deputy Assistant Secretary Thomas Stohler is filling in until a permanent replacement is named by the incoming Administration.

9.  OSHA HOLDS HEARING ON CITATION POLICY

Stakeholders had their say at an OSHA hearing last month on a proposal to clarify its authority to issue a citation for each per-employee violation of its training and personal protective equipment (PPE) standards.

OSHA has said the action is necessary due to recent court decisions that have challenged what OSHA said is its long-standing position to treat as a separate violation an employer’s failure to provide PPE or training to each covered employee.

At the hearing, OSHA asserted that it has authority either to cite employers once for multiple violations of the same standard or multiple times.  However, officials added, citations for multiple violations would continue to be made on a discretionary basis under the agency’s egregious penalty policy.  

Speakers representing employers pointed out that OSHA’s policy to limit its multiple-citation policy to situations involving egregious violations and serious injuries or deaths should be spelled out in the proposal.  A commenter representing the U.S. Chamber of Commerce argued that the rulemaking was illegal.  A final rule is expected next year.

10.  CRANES & DERRICKS PROPOSAL RELEASED

OSHA’s nearly 40-year-old rules on crane and derrick safety in construction got a major facelift when the agency released a proposed rule last month.

The proposed rule includes safety measures for crane and derrick inspection, assembly/disassembly, safety devices and signals, crane operation near power lines, and ground conditions.  Besides cranes and derricks, dedicated pile drivers are included, as are multi-purpose machines when configured for use to hoist and horizontally move a suspended load.

The rule also includes certification requirements for all crane operators nationwide.  Operators may be certified by an accredited third-party testing organization, an audited employer testing program, the U.S. military, or the state and local licensing authority.  Training is also required for signalpersons and riggers. Currently, only 15 states and six cities require certification testing.

More than four years in the making, the rule was developed through negotiated rulemaking.  It will cover the vast majority of the 96,000 cranes in the country, including 2,000 tower cranes.  It was released against a backdrop of crane accidents that have left more than 20 people dead in New York City, Miami, and elsewhere.     

OSHA is accepting comments until December 8.  A final rule is not expected before late next year or thereafter. Anyone who wants help preparing comments should contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511).

III.    ENFORCEMENT

11.  MSHA HITS OPERATORS WITH BIG FINES

MSHA is continuing a trend began after the 2006 mine tragedies by slapping huge fines on coal operators whom the Agency claims repeatedly flout its safety regulations.

Murray Energy Corp.’s American Coal (AmCoal) subsidiary is among the latest to feel the heavy hammer of MSHA enforcement.  Its Galatia Mine in Illinois was assessed $1.46 million last month for nine allegedly flagrant violations, mainly for repeated violations of a rule prohibiting accumulations of combustible materials and inadequate pre-shift examinations.

AmCoal blasted the agency in a media statement October 8.  The company noted that, earlier in the year, it had asked the Labor Department’s Inspector General to look into MSHA’s oversight of its Galatia mining complex.  It said it would appeal the citations, and added that it intended to file a further complaint of “retaliatory abuse of process” by MSHA.

The statement said, in part: “Today’s announcement [by MSHA]. . . is just another highlight on the long continuum of flagrant abuse of the civil penalty process and one more example of MSHA trying to rehabilitate its own public image at the expense of mining companies and business.”    

Earlier this year, MSHA cited Murray’s Genwal Resources subsidiary $1.34 million for violations at the Crandall Canyon mine and $420,300 at Andalex Resources’ Aberdeen mine, both in Utah.  The fines at the Crandall mine were related to an accident in August 2007 that claimed the lives of six miners.  MSHA has been criticized for its performance at the Crandall operation. 

In other enforcement action, MSHA this month announced it had cited River Hill Coal Co. $177,300 for multiple violations at its tipple in Pennsylvania and contractor Triad Electric & Control $135,000 for alleged infractions at a Texas cement plant.  Last month, Kingwood Mining’s Whitetail Kittanning Mine was cited for violations of its standard on accumulations of combustible dust and assessed penalties totaling $736,000.  Big River Mining was assessed $291,600 for violations at its Broad Run Mine.  Both coal operations are in West Virginia.

MSHA also announced that a Kentucky coal operator had agreed to pay $342,000 for alleged violations associated with a methane explosion that led to the death of five miners at the Darby #1 mine in May 2006.

12.  OSHA FINES AGAINST REFINERY, CONTRACTOR TOTAL $469,000

Refineries in two Southern states and a contractor in Utica, New York have been fined $469,000 by OSHA for safety violations.

Hunt Refinery Co. operations in Sandersville, MS and Tuscaloosa, AL received three willful and 58 serious violations and fines totaling $357,750.  The bulk of the penalty amount, $216,900, was levied at Sandersville for two alleged willful violations and 35 alleged safety violations.  Fire and explosion hazards existed in a process area and employees in a nearby control room were potentially exposed to them, OSHA said.  At Tuscaloosa, the alleged failure to inspect and test process vessels led to a willful violation.

Precision Plaster Paint & Contracting faces $111,000 in fines for various alleged violations at a city worksite in Utica, including an improperly erected and maintained scaffold and lack of employee fall protection.  OSHA had previously cited Precision within the past two years for alleged violations at two other worksites in the state.

IV.       OTHER AGENCIES

13.  DHS SEEKS COMMENTS ON REGULATING AN FACILITIES 

The Department of Homeland Security (DHS) has announced its intent to regulate the sale and transfer of ammonium nitrate (AN).

DHS is seeking comment by December 29 on its proposal to require that AN facilities and purchasers register with DHS in order to sell, transfer, and/or purchase AN.  Facilities selling AN would have to verify that potential AN purchasers are registered and keep records of sales or transfers for two years.  AN facilities and purchasers would have to report the loss or theft of AN within a calendar day after discovery.  Facilities would be subject to DHS audits and could face penalties up to $50,000 per violation. 

In the 2008 appropriations bill, Congress directed DHS to act on the sale and transfer of AN to prevent its misappropriation for terrorist purposes.  Contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511) for assistance in preparing comments.

14.  CSB INVESTIGATING WELDING BLASTS, BAYER EXPLOSION

The Chemical Safety Board (CSB) is trying to determine if similarities existed between recent fatal accidents in different parts of the country where welding was being done near flammable storage tanks.  Two accidents involving welding occurred in less than a two-week period last month in Ohio and Hawaii, claiming three lives. 

Meanwhile, the CSB’s investigation continues into a blast that claimed its second victim last month at a chemical plant in West Virginia.

One worker was killed immediately after the August 28 blast at the Bayer CropScience plant in Institute, WV. Thousands of area residents were advised to take shelter in their homes after the explosion, and main highways through the area were closed for several hours afterwards.

The company delayed notification to emergency responders until at least two hours after the incident, and CSB Chairman John Bresland said emergency response and community notification was an area the organization would target in its investigation.  The EPA said it will examine whether Bayer violated any chemical accident reporting rules.  OSHA said it would review the accident for any safety violations.

Bresland said the explosion occurred in a pesticide waste storage tank.  “Some kind of a reaction occurred in that tank, and the tank over-pressurized and exploded, he said.  

The CSB is also investigating accidents in Wisconsin, Georgia, Florida, and Colorado, as well as two accidents in Texas.

15.  JORDAN, YOUNG RE-CONFIRMED TO FMSHRC 

Mary Lu Jordan and Michael Young were re-confirmed by the Senate last month and will serve six-year terms on the Federal Mine Safety and Health Review Commission.  Their previous terms had expired in August.  They re-join Chairman Michael Duffy and Robert Cohen, Jr. on the 5-member adjudicative body.  No action on the vacant commissioner post is expected until after the new Administration takes office in January.    

16.  REVIEW COMMISSION EXTENDS DEADLINE ON ANPRM

The Federal Mine Safety and Health Review Commission has extended the deadline for responding to its request for comments on ways to reduce the civil penalty case default rate through November 17.

In an advance notice of proposed rulemaking (ANPRM) in September, the Commission said it wanted input on whether it should provide requirements for requesting relief from default through rulemaking or provide guidance through an informal document.  The ANPRM lists a series of questions the Commission wants answered.   

The action is being taken because the Commission is receiving an increasingly large number of requests for relief from operators of all sizes who have failed to timely contest a proposed penalty assessment, and thus risk having their cases terminated by default.  The Commission added two weeks to the comment period based on a stakeholder request for more time.  Anyone wishing help with comments should contact Henry Chajet (hchajet@pattonboggs.com, 202.457.6511).

17.  OHIO SUPREME COURT RULING CUTS ASBESTOS CASES

An Ohio Supreme Court decision last month has led to the dismissal of more than 30,000 asbestos claims in the state.

In 2004, the state legislature passed asbestos tort reform legislation to limit cases where the plaintiff had a bona fide disease that could be related to asbestos exposure.  The law was written to include cases filed before it was passed.  Tort lawyers challenged that retroactive provision, but it was upheld by the High Court in a split decision.  Since the decision October 15, some 30,000 cases have been dismissed by lower courts, according to media reports.   

In a second split decision, the Court held that a 1977 decision that extended liability for defective products from manufacturers to suppliers could not be applied retroactively.  That case had involved a widow seeking damages due to the death of her husband from mesothelioma.  She had alleged he was exposed to asbestos-insulated pipe coverings provided to his employer by a supplier.

18.  THREE KENTUCKY FOREMEN INDICTED

Three foremen at the Stillhouse Mining No. 1 Mine in Harlan County have been indicted by a federal grand jury on two counts each of violating the Mine Act.  The indictment charges that the men made illegal changes to the mine’s ventilation system, or authorized such changes, while coal miners were underground.  If convicted, each could get up to five years in jail and a $250,000 fine.  MSHA fined the operator $760,000 for the alleged violations.  The company has appealed. 

19.  WRONGFUL DEATH SUIT GETS UNDERWAY

Opening arguments were held November 10 in a wrongful death suit against Massey Energy Co., two of its subsidiaries, and Massey’s CEO.  The lawsuit was filed by the widows of two men killed in a conveyor belt fire at the Aracoma Alma No. 1 Mine in January 2006.  MSHA fined Massey $1.5 million for 25 alleged violations found in connection with the accident.  The company is contesting those citations. The accident is also the subject of a federal criminal investigation.    

20.  EXXON MOBIL LIABLE IN MESOTHELIOMA CASE

A Louisiana appeals court has found Exxon Mobil liable for damages resulting from the death of a former employee from mesothelioma.  In the lawsuit, the plaintiff alleged that the company knew about the dangers of asbestos, but failed to implement safety measures to protect its employees.  The employee, who died of the disease in 2005, worked on Exxon towboats and at its Baton Rouge oil refinery from 1945 to 1986. The decision affirmed a trial court’s judgment that awarded substantial damages to the family in 2006. Company attorneys argued that the claim was barred under workers’ compensation law, but the court held that mesothelioma was not covered prior to 1975.

21.  MINER’S WIDOW CASTS WIDE NET IN LAWSUIT

The widow of a miner killed in an accident in an underground anthracite mine in 2006 has named as defendants federal and state enforcement officials, regulatory authorities, the mine operator, miners, and the estate of a deceased mine co-owner. 

Dorothy Reightler filed the lawsuit last month against the U.S. Attorney General, the Pennsylvania Attorney General, U.S. Department of Labor, MSHA, R&D Coal Co. and partners in the company, two miners working with the victim at the time of the accident, and individual federal and state enforcement personnel, including inspectors.  One of the mine owners and the two miners also face criminal charges in what authorities have called a methane explosion.     

22.  OPERATOR, SUPERVISOR PLEAD GUILTY TO MINE ACT VIOLATIONS

An investigation into the rupture early last year of a gas pipeline at the Big Branch No. 1 mine in Virginia has led to guilty pleas by the mine operator and a supervisor for failing to conduct mandatory workplace examinations and to document the results.  Robert Clear Coal Corp. faces up to five years’ probation and a $250,000 fine.  Supervisor Wilbur Davis could get a jail term of that length and a $250,000 fine. Sentencing is scheduled for January 22.

23.  GRACE TRIAL DATE SET

After four years of legal maneuvering by both sides, W.R. Grace will get its day in court in February when the company and several of its executives are scheduled to go on trial for alleged violations of the Clean Air Act.  The Federal Government filed suit in February 2005 charging that Grace and seven of its top officials concealed the health risks associated with asbestos-contaminated vermiculite from its mine in Libby, MT.  The Government alleges that about 200 people have died from asbestos-related diseases and more than 1,000 have contracted asbestos-related diseases.