INSIGHTS is our environmental, health and safety, and crisis management newsletter, made for our clients and friends. 

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I. ADMINISTRATION/CONGRESSIONAL ACTION

1. ACTING OSHA CHIEF NOMINATED

U.S. Labor Secretary Hilda Solis named House Education and Labor Committee senior policy advisor Jordan Barab as deputy assistant secretary for the Occupational Safety and Health Administration (OSHA) and announced that he will serve as acting assistant secretary, the head of OSHA. Barab worked for the House committee for more than two years, specializing in worker health and safety issues. Prior to joining the committee, Barab worked for four years at the U.S. Chemical Safety and Hazard Investigation Board. He served as special assistant to the assistant director of Labor for OSHA from 1998 to 2001 and directed the safety and health program for the American Federation of State, County, and Municipal Employees from 1982 to 1998. A native of Palos Verdes Estates, California, Barab is a 1975 graduate of Claremont McKenna College in California and received a Master's degree in International Relations from the Johns Hopkins University in 1978. Barab’s views on safety and health were reflected often in the “Confined Space” blog he hosted at http://spewingforth.blogspot.com. 

At her confirmation hearing, Solis, 51, said worker health and safety would be a priority. Her voting record includes support for a measure that would require OSHA to regulate combustible dust and co-sponsorship of legislation to ban asbestos. She also voted with the minority on an OSHA-promulgated ergonomics rule that was rejected by Congress in 2001. Solis graduated from California State Polytechnic University, Pomona and earned a Master of Public Administration from the University of Southern California.

2. DRUG TESTING RULE ABANDONED?

Following the lead of his predecessors, President Obama placed a hold on regulations put into the pipeline by the Bush Administration. On Inauguration Day, Obama’s Chief of Staff, Rahm Emanuel, issued a memo to agency heads instructing them not to publish proposed or final regulations until an Obama appointee had reviewed them. Exceptions were made for “emergency situations or other urgent circumstances.”

Emanuel’s memo may have affected release of a pending health and safety rule at Mine Safety and Health Administration (MSHA). A controversial substance abuse rule was scheduled for release in January 2009 but the rule did not appear and has yet to be released. Given opposition to the rule by organized labor, its demise is a probability.

For more information on the new Administration’s actions on pending rules and on what to expect this year and beyond, contact Henry Chajet (hchajet@pattonboggs.com) or call 202-457-6511.

3. OPEN GOVERNMENT POLICY TESTED ON DIESEL ISSUES

On Jan. 21, President Obama issued a memorandum directing top Administration officials to coordinate the development of recommendations for what he termed an Open Government Directive, embodying the principles of transparency, public participation, and collaboration. He also ordered agencies to adopt a presumption in favor of disclosure under the Freedom of Information Act (FOIA). The President’s actions were followed by a memorandum from the Attorney General, directing agencies to comply.

The Methane Awareness Resource Group (MARG) Coalition, participants in a 10-year government study of the potential health effects of diesel exhaust among 15,000 current and former employees, repeatedly has sought access to the diesel study, as well as MSHA reports on total and elemental carbon analysis withheld from the agency’s diesel rulemaking record. To date, their requests have been ignored or refused by the National Institute for Occupational Safety and Health (NIOSH), the National Cancer Institute (NCI), and MSHA. Yet, under the Bush Administration, NIOSH briefed MSHA on the conclusions of the health effects study, reporting that the study contradicted MSHA’s risk assessment used to justify the nation’s only occupational health standard for diesel exhaust carbon content. That briefing and the study data and reports have not been released to the public and are now the subject of renewed FOIA requests by MARG. In a letter to the Attorney General, MARG asked that the President’s policy be implemented, the studies released, and that agency personnel not be permitted to hide or reinterpret data that contradicts their prior regulatory positions. For more information, contact Henry Chajet (hchajet@pattonboggs.com) or call 202-457-6511.

 

4. COMBUSTIBLE DUST

Rep. George Miller reintroduced legislation to force OSHA to issue a combustible dust standard. Similar to a measure the California Democrat introduced last year, H.R. 849, if passed, would require OSHA to issue an interim final combustible dust standard within 90 days. However, given that Labor Secretary Hilda Solis supported the bill last year as a member of Congress and appointed Chairman Miller’s OSHA staff person as acting head of OSHA, it seems likely OSHA will act on combustible dust and that the legislation will serve as a starting point for OSHA rulemaking. The bill would include organic dusts generated in a wide range of industries, including plastics, sulfur, wood, rubber, furniture, textiles, pesticides, pharmaceuticals, fibers, dyes, coal, metals, fossil fuels, and any others identified by OSHA.

Provisions of the House bill include a hazard assessment, engineering controls, employee participation and training, a written program, and housekeeping. In promulgating an interim rule, the House bill would direct that normal rulemaking procedures be waived, requiring a final standard within 18 months. Besides provisions of the interim rule, the House bill would require that the final standard include explosion protection, building design, and relevant standards of the National Fire Protection Association. The legislation also calls for amending OSHA’s Hazard Communication Standard to include combustible dust as an example of a physical hazard.

5. MSHA & OSHA GET BUDGET BOOST

MSHA’s budget jumped to $347 million in the omnibus appropriations bill passed by Congress, compared to the 2008 budget of $331.8 million. A portion of the increase is dedicated to enforcement. OSHA’s budget rose to $513 million from $486 million in 2008. President Obama signaled that there is even more to come for OSHA. His 2010 budget proposal specifically mentions that OSHA will get additional funding to enable the agency “to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”

II. REGULATORY UPDATE

6. GREENHOUSE GAS REPORTING PROPOSAL

On March 10, the Environment Protection Agency (EPA) released a proposed regulation that would require nearly all sectors of the economy to report their annual greenhouse gas (“GHG”) emissions. The 1,410-page proposal would require approximately 13,000 facilities to monitor and report their carbon dioxide, methane, and other GHG emissions. This is a major policy effort with significant potential impacts, beyond reporting, on the carbon cap and trading debates in Congress. A summary of the proposal is available on our website at www.pattonboggs.com/newletters/insights/Release/alert_2009_04_02.htm. We suggest that the proposal is worthy of your attention and participation. Comments must be received within 60 days after publication in the Federal Register. For further information, please see our website or contact Henry Chajet (hchajet@pattonboggs.com) or call 202-457-6511.

7. OSHA HEARING SET ON CRANES & DERRICKS RULE

OSHA held a hearing on its proposed rule on cranes and derricks in construction on March 17 at its Washington, D.C. headquarters. OSHA issued a proposal on crane and derrick safety last October and extended the comment period to Jan. 22. The informal hearing was set in response to several requests. OSHA has not specified when it would release a final rule.

8. Food Flavoring – Diacetyl – Rulemaking to Be Accelerated

Following a recent report of a $7.5 million federal jury award to an Iowa man who developed lung disease, reportedly from exposure as a flavoring mixer in the 1990s, U.S. Secretary of Labor Hilda L Solis announced "action to prevent workers' exposure to food flavorings chemical containing diacetyl.” The Secretary withdrew an Advance Notice of Proposed Rulemaking (ANPRM) on diacetyl to facilitate OSHA's "timely development of a standard to protect workers from bronchiolitis obliterans, a serious and potentially fatal lung disease associated with such an exposure."

In a press release, the Secretary stated: "I am alarmed that workers exposed to food flavorings containing diacetyl may continue to be at risk of developing a potentially fatal lung disease. Exposure to this harmful chemical already has been linked to the deaths of three workers," said Secretary Solis. "These deaths are preventable, and it is imperative that the Labor Department move quickly to address exposure to food flavorings containing diacetyl and eliminate unnecessary steps without affecting the public's ability to comment on the rulemaking process."

The DOL press release states that "Secretary Solis' interest in this issue began when she was a member of Congress and workers in her former California district developed the irreversible lung disease after being exposed to this workplace hazard. At one time, she urged OSHA to issue an emergency temporary standard to protect these workers." (emphasis added).

Apparently seeking a faster rulemaking than would have taken place with the ANPRM initiation, DOL justified the withdrawal by stating:

"Withdrawing the ANPRM facilitates the convening of a small business advocacy review panel to determine the impact a proposed rule might have on small businesses and how those impacts can be reduced, consistent with the agency's statutory requirements. This panel process is required under the Small Business Regulatory Enforcement Fairness Act. All materials submitted prior to the ANPRM withdrawal, as well as any other information submitted directly to OSHA after the withdrawal, will be put in the public rulemaking docket and will receive appropriate consideration as a part of the overall rulemaking record."

Comments can be submitted by mail, hand delivery, or courier service to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 20210. Comments that do not exceed 10 pages may be faxed to the Docket Office at 202-693-1648. All submissions should reference Docket Number 2008-0046. If you would like further information or assistance in rulemaking participation, please call or email Henry Chajet (hchajet@pattonboggs.com) or call 202-457-6511.

III. SIGNIFICANT ENFORCEMENT ACTIONS BY OSHA AND MSHA
 

9. OSHA

OSHA fined G.S. Robins & Co. $1.2 million last month after a chemical release sent eight employees to the hospital at its East St. Louis packaging/repackaging plant.

“There are means available to safely handle deadly chemicals such as this, and those means were ignored,” said Deputy Assistant Secretary Donald G. Shalhoub. OSHA issued nearly 40 citations, including several for inadequate training and failure to provide adequate protective equipment.

Exposure to para-nitroaniline occurred as the workers performed a chemical transfer operation, OSHA said. The chemical dust settled on the work surface and on employees. Para-nitroaniline causes a disease that reduces the blood’s ability to transport oxygen and can be fatal. Some of the workers reportedly were so ill a city official mistakenly announced that two had died. Emergency rooms at two hospitals where the workers were taken were quarantined for several hours. All eight workers recovered.

In other enforcement actions this year, OSHA has assessed $2.47 million in fines against a dozen companies across the country. The firms, assessments, and alleged serious violations are as follows:

• A-1 Excavating of Bloomer, WI, $700,000, trenching

• Phenix Lumber Co. of Phenix City, AL, $293,700, various

• Blackstone Business Enterprises, Inc. of Jamestown, NY, $273,000, asbestos

• John Prouty Construction of Oneill, NE, $200,000, trenching

• NTN-Bower Corp. of Macomb, IL, $172,350, lockout/tagout, training, etc.

• Bayer CropScience of Research Triangle Park, NC, $143,000, process safety

• Suncor Energy of Calgary, Alberta, $130,500, various (plant located in U.S.)

• O.C.E. Warehouse and Distribution Center of Edison, NJ, $123,100, various

• WDG Construction, Inc., of Wesley Chapel, FL, $119,000, trenching

• Tippins Contracting Co. of Marietta, GA, $108,000, trenching

• Best Plastering Contractors of El Paso, TX, $106,200, fall hazards

• Exide Technologies of Alpharetta, GA, $102,000, chemical exposure

Last month, OSHA ordered Southern Air, Inc., a cargo airline based in Norwalk, CT, to pay a flight crew member more than $400,000 in a whistleblower case. In settlement action, Broadway Concrete of New York agreed to pay OSHA $750,000 for alleged fall hazards at a condominium construction project in New Jersey.

10. MSHA

MSHA fined a former coal mine operator and its contractor $265,000 in the 2007 death of a truck driver. David Whiting died when a front-end loader the operator had brought to help pull Whiting’s haul truck out of snow and mud slid into him, pinning him between the loader and his vehicle. The accident occurred at C.W. Mining’s Bear Canyon mine in Utah.

C.W. Mining was fined $215,000 for four safety violations and Whiting’s employer, Trimac Transportation Services, Inc., received a $50,000 assessment for failing to provide the victim with site-specific hazard training. A spokesman for the operator said the mine has been sold and the company is in bankruptcy.

MSHA cited Intrepid Potash NM, LLC in the death of a shift foreman and fined the operator $165,000. Jeffrey Franklin was electrocuted last August when he touched energized parts of a steel water line at a surface processing facility at the underground mine in New Mexico. The company was fined $55,000 for each of three alleged electrical violations.

Massey Energy’s Highland Mining subsidiary was fined $180,000 for three violations relating to an accident at the Freeze Ford coal mine in West Virginia that injured a truck driver. MSHA said a section of the highwall collapsed above a haul road in February 2008, partially burying the miner’s truck.

11. MSHA SETS ENFORCEMENT MILESTONES

2008 was a record-setting year for MSHA enforcement, one mine operators hope is not repeated any time soon.

Civil penalty assessments for the period totaled a staggering $194.3 million, more than a 250 percent increase over 2007. The increase in coal was roughly three-fold, to $152.7 million from $53.5 million in 2007. A more modest two-fold increase occurred in metal/non-metal (M/NM), to $41.6 million from $21 million.

Violations totaled 198,800, with 119,400 of those in coal and 79,300 in M/NM. In 2007, the numbers were 130,100, 74,000, and 56,200, respectively.

Preliminary data from MSHA show that 64,792 104(a) citations were written in 2008, a 12 percent increase over the previous year. There were 601 104(d) citations/orders, 426 104(b) orders, and 296 107(a) orders. Of these three, only 104(d) citations/orders showed a decline from 2007. Twenty-one percent of all violations were written as S&S, a 1% drop from the year before.

Two of the top 10 most frequently cited infractions dealt with guarding, with 56.14107(a) leading the way. Together, this regulation and 56.14112(b) comprised 11.8 percent of all citations. Three regulations involving defective equipment added another 11percent. Two electrical infractions contributed 10.8%. Housekeeping (56.200003(a) was the fifth most-cited regulation, making up 3.4% of the total. A total of 2.3 percent of all citations were for failure to provide a safe means of access (56.11001). In all, the top 10 citations make up about 40 percent of all citations MSHA writes.

While enforcement data were headed into the stratosphere, injury data showed yet another decline, continuing a consistent year-to-year downward trend that began in 2001. The preliminary lost-time incident rate last year was 1.90, down from 1.99 in 2007 and 2.09 in 2006. Fifty-one miners died in 2008, the lowest annual number ever. This included 22 miners in M/NM, another record low.

IV. OTHER AGENCIES

12. CHEMICAL SAFETY BOARD - PROCEDURES & RECENT ACTIONS

The Chemical Safety Board (CSB) is an independent Agency whose investigations and recommendations have become increasingly important, as have the number of cases they’ve handled. CSB has been highly critical of OSHA and CSB Congressional testimony is expected to spur action in the Obama Administration, particularly with Jordan Barab, a former CSB staff member and safety advocate, nominated as the acting head of OSHA.

CSB is mandated by law to “investigate …determine and report to the public in writing the facts, conditions, and circumstances and the cause or probable cause of any accidental release [within its jurisdiction] resulting in a fatality, serious injury or substantial property damages.’’ 42 U.S.C. 7412(r)(6)(C)(i). The Board developed practices and procedures for conducting investigations. See e.g. 40 CFR Part 1610, codifying their procedures for witness interviews and representation.

CSB suggests that its “administrative investigations are purely investigatory and that the CSB lacks the authority to determine anyone’s civil or criminal liability, or make any other determination depriving a person of life, liberty or property.” CSB correctly notes that “[i]ts enabling statute prohibits any part of the ‘conclusions, findings, or recommendations of the Board’ from being admitted as evidence or used in any other way in civil suits arising from incidents investigated by the CSB. 42 U.S.C. 7212(r)(6)(G).” However, CSB investigations and their resulting press coverage, findings, and potential relationship to other agency enforcement actions or civil litigation, demand great care by investigation participants.

For example, CSB states that “witnesses in CSB proceedings are not targets of the investigation, do not have their legal rights at issue, and as such are not entitled to the sort of due process protections that attend agency adjudications. See Hannah v. Larche, 363 U.S. 420 (1960). The Administrative Procedure Act does, however, provide that witnesses who are ‘compelled to appear in person’ before the agency may be ‘accompanied, represented, and advised by counsel, or if permitted by the agency by other qualified representative.’ 5 U.S.C. 555(b). The Board’s rule codifies this provision and provides that witnesses compelled to appear (normally for a deposition) may be accompanied, represented, and advised by an attorney.”

The CSB provides “ground rules” for their investigations that are critical for participants to understand. For example, their rules for attorney participation in witness interviews and depositions are similar to the National Transportation Safety Board and “modeled, in part, on the regulation of the Federal Trade Commission, 16 CFR 2.9(b).” For witnesses who appear voluntarily for interviews, “the agency’s Investigator-in-Charge, in consultation with the General Counsel, may permit the witness to be accompanied by an attorney or a non-attorney representative,” but, the CSB states: “there is no right to such representation. The Administrative Procedure Act does not mandate a right to representation for non-compulsory appearances. 5 U.S.C. 555(b).” In contrast, we suggest that the Constitution endows individuals with the right to free speech, the right not to speak, and the right to determine under what conditions an individual can voluntarily choose to speak to the CSB.

Recent CSB Actions:

CSB reports that a release of a large cloud of highly volatile hydrocarbons caused a storage tank to explode Jan. 12 at the Silver Eagle Refinery in Utah. Two employees and two contract workers were injured. They were engulfed in flames while standing in a shed about 230 feet from the tank, which was nearly full with some 440,000 gallons of “light naphtha” at the time of the explosion. The incident forced the evacuation of nearby residents. CSB official Don Holmstrom said the investigatory board as yet does not know why the vapor was released and will look for any recent process changes, the history of recent releases from the tank, and the integrity of the tank seal. The tank was receiving up to three different streams of hydrocarbon liquids from the refinery at the time of the explosion, Holmstrom said.

Besides the Utah accident, CSB investigations continue in eight other accidents that have occurred around the nation since late 2007. The accidents have claimed 36 lives and injured at least 66 others. They involve the collapse of a storage tank in Virginia; a pesticide waste tank explosion in West Virginia; a storage tank explosion in Wisconsin; rupture of a heat exchanger and a refinery accident, both in Texas; an explosion and fire at a gasoline additive manufacturing facility in Florida; an underground fire at a hydroelectric plant in Colorado; and a combustible dust explosion and fire at a sugar refinery in Georgia. The Georgia accident, which killed 14, was the worst of the incidents.

For further information on the CSB, please contact Mark Savit (msavit@pattonboggs.com) or Henry Chajet (hchajet@pattonboggs.com).

V. LITIGATION/COURTS

13. COURT UPHOLDS OSHA’S MULTI-EMPLOYER CITATION POLICY

A panel of the Eighth Circuit Court of Appeals has ruled in favor of OSHA in a dispute over enforcement of its multi-employer worksite citation policy in construction. The decision is sure to give a lift to OSHA in its long-running dispute with general contractors over their responsibility for the safety of employees other than their own on worksites they control.

In a 2-1 decision, the panel ruled that the Occupational Safety and Health Review Commission (OSHRC) had abused its discretion in throwing out an OSHA inspector’s citation against Summit Contractors for allegedly violating an OSHA standard on scaffolding. The judges based their decision on a plain reading of a 37-year-old regulation incorporating construction safety standards into OSHA regulations. Further, they said, even if the regulation was ambiguous, they would defer to the agency.

In 2003, Summit was a general contractor on an Arkansas construction project. The case centered around a citation handed to Summit after an inspector observed employees of Summit’s masonry contractor working on unprotected scaffolding. In its appeal, Summit challenged OSHA’s citation policy, saying it had a duty to protect only its own employees, not those of a subcontractor. An Administrative Law Judge (ALJ) ruled for OSHA, but OSHRC sided with Summit.

The decision is not likely to end the controversy. The panel acknowledged that there could be merit in the argument that OSHA’s policy should go through rulemaking. However, the court took no action on that point because the rulemaking argument was not brought by Summit, but instead by construction organizations that submitted amicus briefs in support of the contractor. Please contact Henry Chajet (hchajet@pattonboggs.com; 202-457-6511) for more information on this important decision.

14. MINE OPERATORS SUED FOLLOWING FATAL ACCIDENTS

The widow of a miner killed at an underground metal mine sued her husband’s employer for $18 million. Michael E. Ivins, 55, died in a rock fall at Revett Minerals’ Troy mine in Montana in the summer of 2007. Tammy Ivins seeks $8 million in compensatory damages and $10 million in punitive damages. According to the company, her action alleges causes of action based on negligence, failure to provide a safe place to work, strict liability for abnormally dangerous activity, and intentional and malicious acts and omissions.

In Kentucky, the widow of coal miner Roy D. Sturgill, II filed suit in January seeking $37 million in damages from Arch Coal, Inc. and its subsidiary, Cumberland River Coal Co. A contract worker, Sturgill, 29, died in January 2008 after his 85-ton haul truck went over the highwall at the operator’s Blue Ridge surface mine. The lawsuit alleges that a protective berm along the road was inadequate. MSHA cited the operator over the allegedly inadequate berm and proposed a $60,000 fine.

15. GRACE ASBESTOS TRIAL GETS UNDERWAY

W.R. Grace & Co. and five retired executives went on trial over allegations the company knowingly endangered residents of the northwestern Montana community of Libby by exposing them to asbestos from a now-closed vermiculite mine.

The government filed criminal charges in February 2005. The defendants are charged with a federal conspiracy involving Clean Air Act violations and obstruction of justice. At the heart of the case are charges the company and its top employees were aware they were endangering the community by mining ore contaminated with tremolite asbestos and did so in violation of federal law.

Criminal provisions of the statute were not enacted until 1990, the same year the mine closed. Prosecutors face the challenge of proving that Grace committed overt criminal acts after 1990 and within a 1999 statute of limitations.

In testimony this month, Dr. Alan Whitehouse said that approximately 1,800 Libby resident have been diagnosed with asbestos-related illnesses since the mine closed. He said he continues to diagnose residents with asbestos-related disease at a rate of about one new case per week.

Grace, whose asbestos liabilities led it to declare bankruptcy years ago, faces a $280 million fine or more if convicted. Its former executives each face prison terms of up to 15 years and millions of dollars in fines. A sixth executive was charged but has since died. The trial is expected to go on for another two-three months.

16. OPERATOR, SUPERVISOR GET PROBATION, FINE

Tennessee-based Robert Clear Coal Corp. has been sentenced to three years’ probation and a supervisor to two years’ probation after they pleaded guilty to Mine Act violations.

A district court judge also fined the company $68,000 and ordered it to pay $57,000 into a scholarship fund. The 50-year-old supervisor was fined $450.

The legal action stemmed from a gas pipeline explosion more than two years ago at the company’s Big Branch No. 1 mine in Virginia. During the ensuing investigation, MSHA determined that the supervisor had not conducted a pre-shift examination as required but had falsely documented that he had. No one was seriously hurt in the accident.

17. INSULATOR TO PAY $4.3 MILLION TO PIPEFITTERS' FAMILIES

Plant Insulation Co. has been ordered to pay $4.3 million to the families of three pipefitters who died of asbestos-related disease. In January, a court found that the California-based industrial insulation distributor and contractor continued to distribute asbestos-containing products even though company officials knew the hazards of asbestos. Plant Insulation settled three other asbestos cases last year.

18. COURT UPHOLDS OSHA’S HEXCHROME RULE

In upholding the HexChrome, a panel of the Third Circuit Court of Appeals ruled against organized labor and a public interest group, both of whom had argued the rule was too weak, and against a utility trade group, which contended the regulation went too far. The trade group, Edison Electric Institute, had also argued the rule should not apply to coal or nuclear-power generating plants.

The regulation, issued under a court order in 2006, sets the exposure limit for the cancer-causing chemical at five micrograms per cubic meter. OSHA said the limit was the lowest it could set that was technologically and economically feasible.

Although the decision was a win for OSHA, the agency could not declare total victory. The regulation requires employers to notify employees only when monitoring results exceed the exposure limit. No other OSHA health standard contains such a restriction and the provision was inserted without explanation. Judges remanded the provision back to the agency with a request that OSHA either explain its decision on the notification issue or take “such further action as may be appropriate.”

19. SECTION FOREMAN INDICTED IN ALMA FIRE

The section foreman at a West Virginia mine has been indicted on five charges stemming from a fatal accident that spurred a major rewrite of the Mine Act and a new regulation impacting underground coal mines.

David R. Runyon, 43, was charged in January with two misdemeanor counts alleging he did not conduct required evacuation drills at the Aracoma Alma No. 1 mine and three felony counts for allegedly falsifying records to make it appear those drills had taken place. If convicted, Runyon faces up to 17 years in jail and a maximum fine of $950,000.

According to media reports, the action is the first in what is expected to be a series of federal charges against several Aracoma foremen for their involvement in a conveyor belt fire that killed two miners in January 2006. Partly in response to the tragedy, Congress enacted the MINER Act six months later and MSHA promulgated a rule last year strengthening conveyor belt standards.

20. MSHA TAKES KENTUCKY OPERATOR TO COURT OVER UNPAID FINES

Last month, MSHA sued a Kentucky coal mine operator to collect hundreds of thousands of dollars in unpaid fines stemming from a methane explosion in 2006 that killed five miners.

The action was taken after Kentucky Darby LLC agreed last year to drop its challenge of six violations that MSHA said contributed to the accident and to pay a $342,000 fine. Subsequently, the company also agreed to drop a challenge to other violations not directly related to the explosion and to pay additional penalties, according to MSHA. However, the operator failed to make payment within the specified time frame.

The company’s liability now stands at $505,012 including interest and administrative fees, MSHA said.

21. COAL MINE RESCUE RULES

MSHA will have to amend its final rule on mine rescue teams to beef up training requirements for rescue teams serving small underground coal mines.

MSHA has been forced to make changes to its mine rescue team regulations after an appeals court ruled last month the agency violated the MINER Act by allowing state employees on state-sponsored rescue teams and mine-site rescue teams at mines with fewer than 36 employees to train just once a year. The decision means that twice-annual training is required instead. State-sponsored rescue teams will also have to participate in two mine rescue contests annually instead of one.

MSHA was also ordered to strike provisions that had given other breaks on mine rescue training requirements to state employees. One requirement allowed teams of state mine inspectors to substitute regular work experience to satisfy 50 percent of their required mine rescue training. In addition, MSHA had permitted work that state employees perform as judges in mine rescue contests to be used to fulfill the requirement to participate in mine rescue contests.

The United Mine Workers initiated the litigation. The regulation was issued in February 2008.

22. UMWA SUES MSHA OVER CONVEYOR BELT, REFUGE ALTERNATIVES RULES

The United Mine Workers has filed separate lawsuits against MSHA over regulations that deal with flame-resistant conveyor belts and refuge alternatives. A union spokesperson said the rules “do not give enough protection soon enough.” The lawsuits were filed in January in the Court of Appeals for the D.C. Circuit and came less than a month after the two rules were promulgated.

23. ALJ SIDES WITH MSHA IN WEST RIDGE DISPUTE

An administrative law judge has upheld MSHA’s decision to prevent further mining in a section of a Utah underground coal mine subject to ground disturbances.

MSHA ordered retreat mining in a section of the West Ridge Mine to be stopped Feb. 13 after a series of disturbances, known as bounces, had occurred, including one in which an employee was injured. The company, UtahAmerican Energy, Inc. (UEI), had appealed the stop-work order.

Three bounces occurred in late January. After the first, MSHA issued an order under Sec. 103(k) of the Mine Act that brought work to a halt until changes designed to better safeguard miners had taken place. After each subsequent bounce, MSHA issued a modification to the original order that led to further changes. After the second shutdown, the operator voluntarily redesigned the longwall process to mine by remote control. However, MSHA issued another stop-work order anyway, saying mining in that sector was too dangerous.

MSHA’s caution is no doubt based in part on its past experience at another nearby UEI mine, Crandall Canyon. The agency had approved a roof control plan amendment that failed to stop a bounce in one section of the mine that brought retreat mining there to a halt. Then, after approving a revised plan to mine in another section, a catastrophic bounce occurred in August 2007. Six miners were killed and three workers, including an MSHA employee, died days later during a rescue attempt.

24. CAUSAL LINK TO DISEASE NOT NECESSARY, COURT SAYS

Experts do not need to establish a causal link between exposure and disease based on epidemiological studies in toxic tort cases, the Nebraska Supreme Court ruled Feb. 27.

“Individual epidemiological studies need not draw definitive conclusions on causation before experts can conclude that an agent can cause a disease,” the court said in a case involving alleged exposure to diesel exhaust emissions. According to the judges, studies relied upon by experts only need to show a positive association between the agent and disease.

The litigation was between the Burlington Northern Santa Fe Railway and the estate of an employee who worked for the company as a brakeman and in other positions for 28 years. Bradley King died in 2002 of multiple myeloma.

Dr. Arthur Frank, an expert for the estate, testified that King’s illness was caused by exposure to benzene, a compound of diesel exhaust, and to diesel exhaust and contended that the scientific literature supported his conclusion. However, he conceded that statements to the contrary existed in the literature. Frank also said he knew of no studies that explicitly linked these exposures with King’s disease. The court ruling came after BNSF asked the court to exclude Frank’s testimony, arguing in part that it lacked general acceptance in the field.
 

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 domestic offices in Washington, D.C., Northern Virginia, New Jersey, New York, Dallas, Denver, Alaska, and internationally in Doha, Qatar and Abu Dhabi, United Arab Emirates, our lawyers 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, 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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