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J A C K S O N & K E L L Y P L L C
occupational safety & health
for clients and friends of Jackson & Kelly PLLC UPDATE
Volume 10 Number 1 Summer 2002
MSHA STARTS PROCESS TO MSHA/OSHA/NIOSH BUDGET
INCREASE REGULATION OF CUTS PROPOSED
ASBESTOS IN MINING
The Bush Administration has proposed significant
MSHA issued its Advance Notice of Proposed budget cuts for OSHA, MSHA, and NIOSH in Fiscal Year (“FY”)
Rulemaking for Measuring and Controlling Asbestos Exposure 2003. If the reductions are approved by Congress, OSHA
(“ANPRM”) in the Federal Register, seeking comments from would incur an almost $8 million decrease in funding; MSHA
interested persons and setting a schedule of public meetings. will see a $4 million cut in funding; and NIOSH would experience
67 Fed. Reg. 15134 (Mar. 29, 2002). MSHA’s stated purpose in the largest funding loss of all, in the amount of $28 million.
the proposed rulemaking is to find “ways to increase protection The OSHA reduction would amount to about 2% of its
to miners when they are working in environments where current $400 million plus budget. The projected cuts are fairly
asbestos is present.” 67 Fed. Reg. at 15134. The ANPRM was modest in enforcement (about $700,000 less for FY 2003),
issued in response to a report containing recommendations from reflecting, in part, the Administration’s strategy of broadening
the DOL’s Inspector General (“the IG Report”). voluntary compliance initiatives. (For example, see the Update
The IG Report stated that MSHA should lower its article on OSHA’s recently promised Ergonomic guidelines at
permissible exposure limits for asbestos and move to better p. 3) The cut would entail a loss of about 84 full-time positions.
protect workers and their families from what is described as Much of the OSHA reduction is targeted at training grants.
“take-home” contamination. “Take-home” contamination can see BUDGET page 8
result when miners are exposed to asbestos at the mine site
(where the ore bodies contain asbestos) and bring the substance
home on their persons and clothes, and in their automobiles,
thereby exposing their families to the substance. The IG Report also in this issue
also recommended that MSHA use Transmission Electron
AGENCY PERSONNEL NOTES WEST VIRGINIA’S NEW FOCUS
Microscopy (“TEM”) instead of Phase Contrast Microscopy 2 ON INDEPENDENT
(“PCM”) to analyze fiber samples that may contain asbestos. CONTRACTOR VIOLATIONS
The regulation of alleged asbestos exposure has been 2
percolating in the mining industry for over two decades. As ABBREVIATIONS OF COMMONLY TIME FOR DECISION APPROACHES
early as 1980, MSHA requested that NIOSH investigate USED NAMES AND TERMS IN METAL/NONMETAL DPM
2 LITIGATION
potential health problems at vermiculite operations, including 3
one in Libby, Montana. The NIOSH study, published in 1986,
THE OSHA “ERGO” STORY RESTRICTING THE RULES ON
“indicated very high occupational exposure prior to 1974 . . . CONTINUES THE PURCHASE AND USE OF
and pointed out an increased risk of lung cancer among the 3 EXPLOSIVES
4
miners.” 67 Fed. Reg. at 15135. More recently, the vermiculite
mine in Libby has been in the national media spotlight for its MSHA PUT ON NOTICE WITH WEST VIRGINIA’s GOVERNOR
high incident rate of asbestos-related illnesses and fatalities, REGARD TO EQUIPMENT SIGNS LAW INCREASING PENALTIES
GUARDING COMPLIANCE 5
affecting both miners and their families (presumably caused by 4
“take-home” contamination).
MSHA’S NEW RULES ON HIGH OSHA REGULATIONS MAY BE
The ANPRM stated that MSHA is considering VOLTAGE LONGWALL MINING EVIDENCE OF STANDARD OF CARE
lowering both the eight hour time-weighted average and the SYSTEMS AND EQUIPMENT IN NEGLIGENCE CLAIMS
5 IN COLORADO
short-term exposure limits for asbestos. MSHA currently has 6
two exposure limits for asbestos: the standard for coal mines is
MSHA RESPONDS TO MSHA AND OSHA ISSUE
2 fibers per cubic centimeter of air (“f/cc”); the standard for STAKEHOLDERS WHILE OSHA SEMIANNUAL REGULATORY
metal/nonmetal mines is 2 fibers per milliliter. According to the LOOKS AT RESTRUCTURING AGENDAS
ANPRM, MSHA’s current eight-hour PEL is “20-fold higher” 6 7
see ASBESTOS page 7 1 occupational safety & health update Summer 2002
AGENCY PERSONNEL NOTES WEST VIRGINIA’S NEW
FOCUS ON INDEPENDENT
In safety and health agency-related personnel developments, Mark Ellis CONTRACTOR VIOLATIONS
has been appointed Special Assistant to MSHA’s Assistant Secretary Lauriski. Mr.
Ellis has had a wide-ranging career in both the private sector and government, In the wake of former Assistant Secretary
working for the former American Mining Congress (“AMC”), U.S. Borax, and the of Labor Davitt McAteer’s Fall 2001 report to
FMSHRC’s Office of General Counsel. MSHA is looking for a new Administrator Governor Bob Wise on Mine Safety and Health in
of its Metal/Nonmetal department, currently headed on an acting basis by Bob West Virginia, the West Virginia Office of Miners’
Friend, formerly the Rocky Mountain District Manager. Health, Safety, and Training (“OMHST”) will focus
On the Coal side, Mr. Lauriski announced in late April the efforts on independent mining contractors operating
appointment of Melinda Pon as the new Chief of the Health Division for within the state. Following a rash of fatal mining
Coal. Ms. Pon has a vast degree of industrial hygiene experience, both in accidents, Governor Wise asked Mr. McAteer, a
the U.S. and abroad. Most recently, Ms. Pon held the position of Acting native of Shepherdstown, West Virginia, and former
Global Lead, Knowledge Sharing Information Technology, for BHP in head of MSHA, to intervene. Mr. McAteer was asked
Melbourne, Australia. Michael Miano has taken the position of Chief of the to review and make recommendations for long-term
Safety Division for Coal. Mr. Miano most recently was with the Department improvement in the state’s mining safety record to
of Transportation, Division of Highways, and is the former Director of the halt the fatal trend.
West Virginia Department of Environmental Protection. Organized labor has Data collected by Mr. McAteer and his
expressed its concern regarding the appointments of Mr. Miano and Ms. Pon. team indicated that independent contractors
Additional personnel changes at MSHA include the announcement of account for approximately one-third of all fatal
William Crocco to the position of Coal Accident Investigation Program Manager. mining accidents in West Virginia and that
Mr. Crocco is a long term MSHA employee and was previously a Mining Engineer independent contractors generally have a higher
in the Division of Safety. On the District level, Coal District 9 has a new District rate of non-fatal accidents than traditional mine
Manager. Allyn C. Davis, previously Chief of the Coal Safety Division in Arlington, operators. Mr. McAteer promoted a $1 million
Virginia, has been in District 9 since late 2001. Mr. Davis replaces John Kuzar, budget increase for OMHST and called on
who was transferred to District 1 in the District Manager position. OMHST to develop programs focused specifically
The appointment pace has picked up at FMSHRC as well. President on independent contractors, including education,
Bush nominated Stanley Suboleski, formerly a Massey Energy executive, and outreach, and enforcement.
Michael Duffy, presently the NMA’s Deputy General Counsel, to Commissioner In response to Mr. McAteer’s report, the
seats. In addition to longtime industry service with the former AMC and with the state legislature passed a Bill amending and re-
NMA, Mr. Duffy served as Counsel to former Commission Chairman Ford B. enacting West Virginia Code § 22A-1-21 (Senate
Ford in the 1980s. The UMWA has announced its opposition to Mr. Suboleski’s Bill 179), which permitted OMHST to deposit the
nomination. At press time, it was not known when the Senate will take up the penalty assessments it collects into a Health, Safety
President’s two nominations. Meanwhile the “term clock” is also ticking for both
see WV CONTRACTORS page 8
Chairman Theodore Verheggen and former Chairman Mary Lu Jordan, whose
terms expire on August 30, 2002.
Abbreviations of Commonly Used Names and Terms
For the reader’s convenience, the following abbreviations are used in the Update’s articles:
Department of Labor = DOL
Department of Transportation = DOT
Secretary of Labor = Secretary
Mine Safety and Health Administration = MSHA
Occupational Safety and Health Administration = OSHA
National Institute for Occupational Safety and Health = NIOSH
Federal Mine Safety and Health Review Commission = FMSHRC, first use; Commission, second use
Occupational Safety and Health Review Commission = OSHRC, first use; Commission, second use
U.S. Environmental Protection Agency = EPA
Permissible Exposure Limit = PEL
Threshold Limit Value = TLV
Diesel Particulate Matter = DPM
Federal Mine Safety and Health Act of 1977 = Mine Act
Occupational Safety and Health Act of 1970 = OSH Act
2 occupational safety & health update Summer 2002
TIME FOR DECISION APPROACHES IN THE OSHA “ERGO” STORY
METAL/NONMETAL DPM LITIGATION CONTINUES
The time of decision for MSHA is drawing near in the DPM litigation. Ergonomics (“Ergo”) at the national
As previously reported in the Update, various parties sued MSHA over its regulatory level is not “dead.” On April 5, 2002,
final Metal/Nonmetal DPM Exposure Rule (“Rule”) (applicable only to OSHA Chief John Henshaw announced the
underground mines) after it was promulgated on January 19, 2001 (66 Fed. Administration’s new “comprehensive plan” for
Reg. 5906). Jackson & Kelly PLLC is representing one of those litigants. reducing “Musculoskeletal Disorders” (“MSDs”)
The industry parties and MSHA entered into settlement talks, and the court in the workplace. The plan revolves around
hearing the litigation, the U.S. Court of Appeals for the D.C. Circuit, agreed OSHA’s development of both industry and task-
to stay the proceedings pending the outcome of these settlement negotiations. specific guidelines - - as opposed to new
After resolving some of the issues, the parties undertook a joint mandatory standards - - for reducing and
national sampling study to determine, among other things, existing DPM preventing MSD injuries in the workplace. The
levels, the feasibility of the PELs in the Rule, and the utility of the sampling OSHA program is four-pronged: (1) industry- and
devices proposed for use in the Rule (submicron impactors). That sampling task-targeted guidelines; (2) enforcement
study is completed, and the parties are discussing its results and implications. measures; (3) workplace outreach and assistance;
Due to various procedural considerations, Assistant Secretary of Labor Dave and, (4) advanced research.
D. Lauriski must decide whether to endorse the finality of the Rule or to re- This new plan is the latest development in
JACKSON & KELLY PLLC
open the record for possible modifications before the end of June because OSHA’s long Ergo regulatory saga, which dates
the Interim PEL of 400 micrograms (“:”)/m³ (“400 :”) is scheduled to go into back to the 1980s. A year ago, acting under the
effect after July 19, 2002 - - unless further stayed or modified by MSHA. Congressional Review Act (“CRA”) for the first
In May, industry comments on the sampling study were submitted to time since its passage, Congress and the President
MSHA and a joint discussion meeting between industry’s and MSHA’s overturned the Clinton Administration’s final Ergo
technical experts took place. Mr. Lauriski is scheduled to confer with the industry Standard, one of the major “11th Hour” regulations
litigants and their lawyers this month in order to receive their comments and issued by that Administration in its waning days.
suggestions for action. Given the effective date of July 19, 2002, for the interim The CRA Resolution prevents OSHA from
PEL of 400 :, Mr. Lauriski, as a procedural and practical matter, must announce promulgating another regulation substantially
his decision on how to proceed with the Rule before the end of June. similar to the rescinded standard, without Congress’
As the parties previously agreed, if MSHA’s determinations are prior approval. Because of that legal obstacle and
unfavorable to industry, the litigants reserve the right to resume the litigation a number of other factors making any new Ergo
and, in such event, MSHA will stay the effective date of the 400 : PEL rule “very difficult” (in the words of OSHA’s “FAQs”
pending the D.C. Circuit’s decision. Thus, shortly after this Update goes to on the new program), the Administration has turned
press, it will be known whether some agreement in settlement is reached or to a voluntary guideline approach.
whether the litigation will move forward. see “ERGO” page 9
In the meantime, as a result of the first round of settlement talks last
summer, MSHA published in the Federal Register the final version of two
modifications to the Rule to which the parties had generally agreed. 67 Fed.
Reg. 9179 (Feb. 27, 2002).
The first change affects “Maintenance Standards,” 30 C.F.R. § 57.5066. The contents of this update should
That standard, in relevant part, requires that covered mine operators must
not be construed as legal advice or legal
authorize miner-operators of diesel-powered equipment to affix a “visible
opinions regarding any specific issue
and dated tag” to the equipment when the miner-operator “notes evidence”
or factual circumstance. You are urged to
that the equipment may require diesel-related maintenance. The improvement
more specifically defines the circumstances of evidence that will suffice for consult your own lawyer concerning
such tagging: “visible smoke or odor” that is “unusual” for the equipment, or your situation and any specific legal
“obvious or visible” defects in the exhaust emissions control system or in the questions you may have.
engine affecting emissions. The mine operator must ensure that any such
tagged equipment is “promptly examined” by an authorized person and that Questions or comments may be directed to
the tag not be removed until the examination is completed. the Safety & Health Practice Area
see DPM page 9 of Jackson & Kelly PLLC.
Karen L. Johnston is responsible
for the contents of this update.
3 occupational safety & health update Summer 2002
RESTRICTING THE RULES MSHA PUT ON NOTICE WITH REGARD
ON THE PURCHASE AND TO EQUIPMENT GUARDING COMPLIANCE
USE OF EXPLOSIVES
Recent decisions from the FMSHRC and Commission Administrative
th
As a result of the September 11 terrorist Law Judges (“ALJ”) have placed MSHA on notice that inconsistent
attacks and “to combat terrorism and defend the enforcement of the guarding standards over the past several years may
Nation against terrorist attacks . . . ,” Senators Orrin result in enforcement actions being vacated for lack of notice as to the
Hatch (R-UT) and Herb Kohl (D-WI) introduced compliance requirements.
the Safe Explosives Act (“Act”) on February 14, Last fall, in Alan Lee Good, 23 FMSHRC 995 (Sept. 2001), the
2002, in the U.S. Senate. Currently, federal law Commission remanded a proceeding to the ALJ to determine whether MSHA’s
requires permits and background checks only on failure to cite long-standing guarding conditions could support a defense of
those purchases made for use across state lines. failure to provide adequate notice of the standards and regulations. Good
The Act would create the same requirement for was cited with five citations alleging violations of § 56.14107(a) (inadequate
intrastate purchases. “In at least 12 States, there machine guards). Good argued before the ALJ that MSHA’s previous
are little to no restrictions on the intrastate enforcement of the standard was inconsistent and, therefore, was
purchase of explosives,” said Sen. Kohl. unconstitutionally vague. He asserted that MSHA inspectors had never cited
To close the loophole, the Act provides the current guards over an 18-year period. The ALJ rejected Good’s
for two types of permits for intrastate explosives argument because he failed to provide specific evidence that inspectors had
purchasers: user permits and limited user permits. inspected the areas and found them adequately guarded.
Both permits are good for three years; however, On appeal, the Commission’s decision was split on the guarding
the user permit allows for unlimited purchases, violations. However, to avoid the effect of an evenly divided decision (which
whereas the limited user permit allows for only six would allow the ALJ’s decision to stand), the Commission concurred to remand
purchases per year. The limited user permit to the ALJ for further consideration.
imposes background checks, secure storage When determining if an operator has received fair notice of the
requirements, monitoring of the purchases, and Secretary’s interpretation, the Commission noted that the standard is “whether
reporting of the sale or theft of explosives. The a reasonably prudent person familiar with the mining industry and the
limited user, however, would not be subject to the protective purposes of the standard would have recognized the specific
record keeping requirements imposed on the user prohibition or requirement of the standard.” 23 FMSHRC at 1004, citing to
permit holders. Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Commissioners Jordan
The proposed legislation also seeks to and Beatty concluded that the ALJ applied an objective standard by relying
increase the class of people who would be on the testimony of the MSHA inspector. Note, however, that while an
prohibited from purchasing or possessing inspector’s views are relevant to the notice issue, the Commissioners stated
explosives. For example, under the federal that those views “do not automatically equate to what the prototypical
explosives law, convicted felons are prohibited ‘reasonable person’ would conclude about the scope of the guarding
from buying explosives. The Act seeks to expand requirements at issue here.”
those prohibited from receiving or possessing Applying the reasonably prudent person standard to a notice
explosive materials to include non-immigrant question must take into account various factors, including the regulation’s
aliens and individuals dishonorably discharged text, the standard’s placement in the overall regulatory scheme, its regulatory
from the armed forces. history, the consistency of the agency’s enforcement, and whether
As one of the largest users of explosives, MSHA has published notices of its interpretation of the standard. The
mine operators already have explosives permits Commissioners noted that the ALJ erred by stating that Good could have
for their interstate operations. Thus, the overall prevailed if an inspector testified that he had previously inspected the cited
impact of the Act will be minimal. However, one areas and found them adequately guarded. The Commissioners viewed this
key provision may add an additional burden on as limiting the manner in which Good could prove inconsistent enforcement
the application process for corporations, and remanded to the ALJ to consider the other notice factors. Following the
partnerships, and associations. These entities will Commission’s remand, MSHA vacated the citations at issue before the ALJ
be required to submit “the names of and had the opportunity to rule on the notice issue.
appropriate identifying information regarding all More recently, in Higman Sand & Gravel, Inc., 24 FMSHRC 87
employees who handle explosive materials, as well (Jan. 2002), Judge Manning requested that the parties file post-hearing briefs
as fingerprints and a photograph of the applicant” on the specific issues raised by the Review Commission’s decision in Alan
for “any individual possessing, directly or Lee Good. Higman operated a gravel-processing facility, the Akron Plant,
indirectly, the power to direct or cause the which opened in the 1960s. The Akron Plant had been inspected by MSHA
direction of the management and policies of the at least annually since the adoption of the Mine Act in 1978. In December
corporation, partnership, or association.” 1999, MSHA inspected the Akron Plant and issued sixteen citations, nine of
see EXPLOSIVES page 9 see GUARDING page 10
4 occupational safety & health update Summer 2002
WEST VIRGINIA’S GOVERNOR SIGNS LAW MSHA’S NEW RULES ON
INCREASING PENALTIES HIGH VOLTAGE LONGWALL
MINING SYSTEMS AND
While the West Virginia Office of Miners’ Health, Safety, and EQUIPMENT
Training (“OMHST”) historically has imposed fines for safety and health
violations by operators of coal mines, the method used to calculate the fines On May 10, 2002, MSHA’s new mandatory
resulted in average penalties of under $100 per violation. Consequently, electrical safety standards for the installation, use,
the OMHST did not pose a tremendous threat to coal operators’ bottom line. and maintenance of high-voltage longwall mining
This may change as a result of Governor Bob Wise signing Senate Bill 179 systems used in underground coal mines became
into law on March 26, 2002. At the signing ceremony at Pine Ridge Coal law. The new regulations include design approval
Company in Seth, Boone County, West Virginia, the governor recalled the requirements for high-voltage equipment
14 mining fatalities in West Virginia in 2001 and the two fatalities in the first operated in longwall face areas of underground
quarter of 2002 and declared the toll on human life unacceptable. mines if the equipment is enhanced with safety
As a result, this new law establishes a procedure for assessing protection from fire, explosion, and shock.
significantly higher civil penalties to serve as a deterrent for committing According to MSHA, the new regulations
safety violations and to decrease the injuries and fatalities throughout the implement a number of changes to the approval
West Virginia mining industry. and safety requirements for high-voltage
West Virginia operators who knowingly violate a state health or equipment to accommodate technological
safety provision or safety rule or who knowingly fail or refuse to advances in a manner that protects the safety of
comply with an order can face a civil penalty of up to $5,000. The OMHST miners. Over the last 16 years, MSHA reports no
may impose a special assessment of up to $10,000 if the violation is considered electrical-type fatalities or serious injuries to
serious and involves one or more of the following: miners because of high-voltage equipment used
in accordance with over 100 granted high-voltage
• violations involving fatalities and serious injuries; petitions for modification. Because of this new
• failure or refusal to comply with any order issued; improved high-voltage technology, MSHA
revised its existing regulations by adding specific
• operation of a mine in the face of a closure order; design requirements for high voltage longwall
equipment in underground mines.
• violations involving an imminent danger; Effective May 10, 2002, all existing
Petitions for Modification for high-voltage
• violations involving an extraordinarily high degree of longwall use under §75.1002 were superseded by
negligence or gravity or other unique aggravating the new regulatory requirements, rendering the
circumstances; petitions moot. Affected mine operators are
encouraged to review carefully the Final Rule,
• a discrimination violation.
including the Preamble, in order to understand
These criteria are identical to federal MSHA penalty regulations fully what is required for regulatory compliance.
addressing special assessments. The law also provides that the OMHST may Section 18.53, which covers electric
impose fines against agents of the operator who knowingly authorize, order motor-driven mine equipment and accessories,
or carry out a violation of a health or safety provision or safety rule. This provides safety protections which may be
provision is similar to § 110(c) of the Mine Act. Any person who makes a summarized as:
false representation or statement in any document required by West Virginia
• the prevention of a high voltage arc;
law may be convicted of a misdemeanor and fined up to $5,000 or imprisoned
in the regional jail for up to 6 months, or both. The new law also contains a • the prevention of a methane ignition;
provision for vendors who provide equipment to coal operators and provides
that vendors of mining equipment who willfully misrepresent that the • the prevention of enclosure failure
equipment complies with the provisions of West Virginia law may be found from increased pressure rise if an arc
guilty of a misdemeanor and are subject to fines up to $5,000 and imprisonment or methane explosion occurs within
up to 6 months. the explosion-proof enclosure; and
The legislation also creates a Health, Safety and Training Fund. All
civil penalty assessments collected are placed in the fund and used to • personal protection from electrical
administer the OMHST office and to support the enforcement of the safety shock hazards for miners when
and health regulations. working in or around the high voltage
equipment.
JACKSON & KELLY PLLC
see HIGH VOLTAGE page 10
5 occupational safety & health update Summer 2002
OSHA REGULATIONS MAY BE EVIDENCE MSHA RESPONDS TO
OF STANDARD OF CARE IN NEGLIGENCE STAKEHOLDERS WHILE
CLAIMS IN COLORADO OSHA LOOKS AT
RESTRUCTURING
Although § 653(b)(4) of the OSH Act provides that nothing in the Act
may be used to enlarge, diminish, or affect the common-law liability of As we reported in our Winter 2001 edition
employees or employers, a recent Colorado Supreme Court decision held of Update, MSHA conducted numerous
that, in negligence actions, the OSH Act and its regulations may be used as “stakeholders’ meetings” across the country with
evidence of the standard of care in the relevant industry. See Scott v. Matlack, the purpose of discussing possible changes in the
Inc., 39 P.3d 1160 (Colo. 2002). way MSHA operates. Recently, Assistant
Randy Scott, an independent contractor, was injured when he fell Secretary Dave D. Lauriski unveiled MSHA’s
from the top of a tanker truck owned by Matlack while he was loading hot “New Management Initiatives” in response to the
asphalt at a Conoco facility in Denver. Scott sued both Matlack and Conoco comments received from stakeholders. The
claiming, among other things, negligence and negligence per se. Following initiatives focus on the following areas: (1)
a two-week trial, the jury found Matlack and Conoco negligent. During the enforcement; (2) compliance assistance; (3) small
course of the trial, all parties offered evidence related to the OSH Act and mines; (4) education and training; (5) technical
OSHA regulations. Scott was also permitted to introduce evidence of a support; and (6) information technology. Included
previous OSHA citation issued to Matlack for an accident at its Connecticut in MSHA’s plans are:
facility, as the result of court-ordered discovery sanctions.
Both Matlack and Conoco appealed the trial court decision. They • conducting more focused enforcement,
argued that the trial court improperly admitted the OSH Act evidence in a taking into consideration the overall
negligence action. Matlack also argued that the court abused its discretion health and safety program of each
by admitting the Connecticut OSHA citation. The Court of Appeals reversed operation;
the trial court’s decision, relying on an earlier Colorado Supreme Court
decision which held that the OSH Act regulations do not create a private • increasing the interaction between
cause of action and cannot be used to establish a negligence per se claim. miners and mine operators during the
See Canape v. Petersen, 897 P.2d 762 (Colo. 1995). Scott appealed. inspection process;
The Colorado Supreme Court granted review to determine whether
• conducting a review of MSHA’s
all OSHA-related evidence must be excluded from a negligence action. In
internal training for health, safety, and
Canape v. Petersen, the court had held that the OSH Act could not be used
compliance specialists;
to establish a negligence per se claim. A negligence per se claim arises when
the defendant violates a statute adopted for the public’s safety and the violation • seeking out less confrontational and
proximately caused the plaintiff’s injury. However, it had not determined more consultative partnering
whether that holding would extend to a common-law negligence claim. To relationships between MSHA and
establish a common-law negligence claim, the plaintiff must show that the mine operators;
defendant owed a duty to the plaintiff to conform to a standard of care, the
defendant breached that duty, the plaintiff was injured, and the breach of • focusing on assisting those mines with
the duty caused the injury. the highest incident and violation
In its review, the court noted that whether the OSH Act regulations rates;
could be admitted in a negligence case turned on two issues. First, whether,
as a safety statute, the OSH Act could be “borrowed as evidence of the • encouraging mines with exemplary
standard of care in the defendants’ industry.” Scott, 39 P.3d at 1166. Second, safety and health performance to
whether § 653(b)(4) precluded the OSHA regulations from being relied upon share their methods of success with
as evidence of the standard of care in a given industry. With respect to the the industry;
first issue, the court concluded that a safety regulation may be used in a
negligence case only if it is relevant, offered in support of expert testimony, • establishing a small mine office within
objective, and accepted and recognized in the industry involved. As to the MSHA to foster cooperation/
second issue, the court concluded that “there is no evidence to suggest the consultation with small mine
Congress intended for evidence of OSH Act regulations to be absolutely operators;
barred from civil cases.” Scott, 39 P.3d at 1169. Thus, the regulations may be
relied upon for evidence of the standard of care. • developing compliance assistance
and training materials tailored to
see NEGLIGENCE page 11 small mines;
see RESTRUCTURING page 11
6 occupational safety & health update Summer 2002
MSHA AND OSHA ISSUE SEMIANNUAL ASBESTOS from page 1:
REGULATORY AGENDAS
than OSHA’s PEL. Accordingly, MSHA is
MSHA and OSHA issued their Semiannual Regulatory Agendas “encouraging mine operators to comply with the
(“SARAs”) on May 13, 2002, along with the DOL’s other agencies, announcing OSHA asbestos PEL of 0.1 f/cc.” 67 Fed. Reg. at 15137.
their semiannual plans for regulations selected for review or development during Some members of the mining industry
the coming year. 67 Fed. Reg. 33308, 33333-39 (MSHA), 33342-55 (OSHA). SARAs have expressed concern that the MSHA
supply useful information on the agencies’ priorities and intentions, although the rulemaking will result in a revisiting of the debate
stated deadlines in SARAs are infrequently met. The regulatory plans of both over OSHA’s proposal in the late 1980s to regulate
MSHA and OSHA continue to reflect a predominance of health-related issues. the non-asbestiform varieties of asbestos. One
The principal announcements are summarized below. potential issue is the regulation of fibers with no
known health effect, such as those that may be
THE MSHA SARA released during aggregates mining operations.
Prerule Stage Naturally occurring asbestos is present at various
mining operations throughout the country.
• Occupational Exposure to Coal Mine Dust: In an area of MSHA is seeking public comments on:
longstanding regulatory examination, MSHA is still considering
rulemaking to lower the respirable coal mine dust concentration • the most appropriate fiber
limit in coal mines because it believes that miners continue to be concentrations to regulate in light of the
at risk of developing occupational lung disease. The agency health risk and the technological and
plans to issue an Advanced Notice of Proposed Rulemaking economic feasibility of doing so;
(“ANPRM”) on this subject in September 2002.
• the advantages of using TEM to
• Asbestos Exposure Limit: On March 29, 2002, MSHA issued an initially analyze airborne fibers
ANPRM on lowering the 20-year old asbestos PEL. (See asbestos collected on all fibers;
ANPRM article on p. 1 of this Update.) MSHA asserts that the
existing PEL is inadequate to protect miners. The agency’s • how the agency should require
comment period on this ANPRM ends on June 27, 2002. operators to address take-home
contamination;
Proposed Rule Stage
• the adequacy of MSHA field
• Belt Entry Ventilation: On another longstanding regulatory sampling methods and how sampling
front, MSHA addresses the use of belt entries for ventilation in results are being used by MSHA and
underground coal mines. At present, mine operators must apply operators to protect miners;
to MSHA for a modification of its regulations to use belt entries
for ventilation. Due to improved monitoring technologies, • how many miners currently are being
MSHA announces that it will move forward to propose a rule exposed to asbestos;
allowing such ventilation if specified protective conditions are
met and will issue a Notice of Proposed Rulemaking (“NPRM”) • the engineering controls and
on the subject in September 2002. personal protective equipment
currently in use and their costs; and,
• Verification of Underground Coal Mine Dust Control
Plans: In 2002, MSHA published an NPRM that would require • the costs and benefits of a new
underground coal mine operators to adopt procedures for asbestos rule.
verifying the effectiveness of their ventilation plans; permit the Written comments on the proposed rule
use of PPE where it was determined that further needed must be received on or before June 27, 2002. In
reduction in coal mine dust could not be achieved using all addition, a number of public meetings were
feasible controls; and provide for MSHA takeover of compliance scheduled for late April, May, and June. At the
sampling for respirable dust. In light of significant public time this Update goes to print, the remaining
comment, MSHA now announces that it will re-propose this meetings include Virginia, MN (June 12th), and
rule in September 2002. Charlottesville, VA (June 20th). Jackson & Kelly
see SARAS page 11 PLLC’s Safety and Health Group attorneys will
continue to monitor this rulemaking for clients and
friends of the firm.
7 occupational safety & health update Summer 2002
BUDGET from page 1: WV CONTRACTORS from page 2:
MSHA would lose about 1.5% of its and Training Fund to be used by OMHST. The amendment also charged the
current $268 million budget and 46 full-time Director of the OMHST (“Director”) with promulgating new rules for the
positions. The Administration’s proposed assessment of civil penalties, as Mr. McAteer found the current point system to
enforcement funding would include a decrease yield an average fine of only $60 per violation. Finally, the Bill authorized the
on the coal side and a modest increase on the Director to impose a “special assessment” for mining safety and health violations
metal/nonmetal side. of a “serious nature” for which the point system is inadequate. The changes track
NIOSH, the federal government’s major the federal civil penalty system. OMHST Director Doug Conaway reports that
occupational safety and health research arm, would the average penalty for a violation involving a fatality is $250. He anticipates that,
lose $28 million, or about 10% of its present $276 in the future, the penalty assessments for such violations will come closer to the
annual budget. This reduction represents a deep statutory limits of $5,000 to $10,000. See “West Virginia’s Governor Signs Law
cut in the federal budgetary context. Increasing Penalties” on p. 5 of this Update.
Not surprisingly, organized labor, In an interview with Jackson & Kelly PLLC, Director Conaway
through the AFL-CIO and the UMWA, and such stated that he intends to hold independent contractors to the same standards
groups as the American Industrial Hygiene to which OMHST holds traditional mining operators regarding inspections
Association have sharply criticized the budgetary and training requirements. Though Mr. McAteer recommended that OMHST
cuts. Industry representatives have expressed develop an entirely new system to handle independent contractors as a
support for the expanded use of voluntary separate accident group, Director Conaway believes that existing law,
compliance measures as opposed to the current effectively enforced, may well be adequate. OMHST plans to identify
state of implementing the OSH Act and the Mine independent contractors, stress the significance of safety issues with them,
Act through virtually sole reliance on the punitive assist them in crafting effective training programs, inspect them more
enforcement system. frequently, and assess higher penalties for violations, as OMHST will against
all mining operators in the state under the new penalty system. In fact,
OMHST has already stepped up efforts to track independent contractors by
establishing a comprehensive database with an eye toward communicating
the agency’s expectations and offering its support.
Additionally, OMHST is assembling a database to discover in what
areas training is most pressing. With the cooperation of the West Virginia
If you would like to receive Workers’ Compensation Division, OMHST is auditing the workers’
compensation filings of mining operators and independent mining contractors
future copies of the to discover where accidents are happening most frequently. Independent
mining contractors are required to report injuries to OMHST, which they
OCCUPATIONAL SAFETY did 240 times last year. In a recent audit of the workers’ compensation records
of ten independent mining contractors, OMHST found more than 100 accidents
& HEALTH UPDATE via that should have been reported to OMHST and were not. “This suggests to
us that independent contractors are not reporting as regularly as they should,”
e-mail, please send your name, says Director Conaway. Though he assures that OMHST is not approaching
the audits with a “clean-up” mentality, he acknowledges that the agency will
your job title and your company revisit instances of repeated non-reporting or unreported serious injuries.
Currently, independent contractors register annually with OMHST
name along with your e-mail and receive an identification number. The contractors tell OMHST what
they will be doing in the state but they previously were not required to
address to Lee Ann Kemp at provide work locations. Identifying the work locations of the independent
contractors is a high priority, according to Director Conaway. Under Title
lkemp@jacksonkelly.com. You 36, Series 20, of the Code of State Regulations, on-site mine operators must
provide OMHST a list of all independent contractors utilized on mining
may also provide the same properties. While OMHST has not previously had the manpower to enforce
this provision rigorously, it intends to now with the budget increase.
information of other people in
your company who wish to The Rules of the Kentucky Supreme Court
require the following statement:
receive these e-mail updates.
THIS IS AN ADVERTISEMENT
8 occupational safety & health update Summer 2002
DPM from page 3: “ERGO” from page 3:
The second improvement is found at 30 C.F.R. The four segments of OSHA’s new Ergo prevention strategy
§ 57.5067, “Engines,” and provides that “introduced include, among other components, the following major elements:
engines,” which must meet specified criteria, do not
include the transfer of engines or equipment from ! Guidelines
the inventory of one mine to another mine operated T OSHA will create industry- and task-specific guidelines for
by the same mine operator. This change allows an a number of industries based on such criteria as current
operator to transfer existing equipment among its own incidence rates and existing best practices.
mines without having to the meet the engine criteria T OSHA will encourage other industries to develop their own
for newly “introduced” equipment. Ergo guidelines.
As events warrant, we will keep clients and T OSHA promises to start issuing its guidelines within six
friends apprised of the critical upcoming decisions in months.
the DPM litigation.
! Enforcement
T Employers must keep their workplaces free of recognized,
serious hazards under the OSH Act’s General Duty Clause
EXPLOSIVES from page 4: - - and this includes Ergo hazards.
T OSHA will inspect for Ergo hazards and issue
It was this provision that was of particular citations for any violations under the General Duty
concern to the mining industry. As a result, the Clause. However, OSHA also promises that it will “not
National Mining Association’s Safety, Health & focus” on employers who have implemented “effective”
Human Resources Committee and Government Ergo programs or who are otherwise making “good-faith
Affairs Committee participated in negotiations with efforts” to reduce Ergo hazards.
ATF representatives and Congressional staff. The
negotiations resulted in an agreement on legislative ! Outreach and Assistance
and report language that will narrow the scope of
the legislation. Most companies will, therefore, not T OSHA will provide assistance to businesses, with emphasis
see any change with regard to their being issued on small businesses, to help them address Ergo problems
explosives permits. It is anticipated that the new and develop appropriate programs.
bill will be introduced by Representative Lamar T OSHA will develop a comprehensive set of compliance
Smith (R-TX) in the near future. Jackson & Kelly assistance tools.
PLLC will continue to monitor this issue. T OSHA will establish new partnerships with industry to
implement voluntary ergonomic guidelines. Voluntary
Protection Program (“VPP”) sites will be used to create
ergonomic approaches. VPP “mentors” will assist with Ergo
Note New Denver Location: approaches at other work places.
! Research
Suite 2150
1099 18th Street T OSHA will charter an advisory committee to “identify gaps”
Denver, CO 80202 in needed Ergo research, to report its findings to NIOSH,
and to carry out other Ergo-related research.
Telephone: (303) 390-0003
Facsimile: (303) 390-0177 Industry groups offered qualified praise for OSHA’s voluntary
guideline approach and made clear that they were adopting a “wait and see”
stance. The AFL-CIO and some of its leading supporters in Congress
condemned the new plan as essentially meaningless. On April 18th, Labor
Secretary Elaine Chao announced that the first OSHA voluntary guideline
draft, for the nursing home industry, will be published in the Federal
Register for public comment later this year.
Clearly, OSHA’s long-running Ergo saga is far from over.
www.jacksonkelly.com
9 occupational safety & health update Summer 2002
GUARDING from page 4: HIGH VOLTAGE from page 5:
which alleged that Higman failed to guard moving machine parts adequately Part 75 is amended to add §§ 75.813 - .822.
pursuant to § 56.14107(a). Higman contested the citations and argued that it These sections cover safety requirements for
was not given notice by MSHA that its existing guards were inadequate. In underground high-voltage longwall systems and
support of its argument, Higman noted that MSHA had never cited these provide the following protection against fire,
guards before and that the guards were in the same condition since MSHA explosions, and/or shock hazards:
began enforcing the Mine Act.
In his review, Judge Manning noted that the guarding standard is • improved short-circuit and ground
ambiguous, “especially when applied to moving machine parts that are already fault protection;
protected by a guard.” 24 FMSHRC at 89. Additionally, Judge Manning stated
• a means to easily test the effectiveness
that, as a broadly written standard, the Secretary has the obligation to provide
of ground fault protection;
fair notice of the standard’s requirements. One factor of this test, which
Higman relied upon, is the consistency of MSHA’s enforcement. • use of manufactured cable support
Judge Manning concluded that MSHA provided notice through the systems for cables extending from the
standard’s final rule that MSHA would be interpreting the standard broadly. power center to the headgate;
He also concluded that MSHA’s Program Policy Manual gave notice of
MSHA’s interpretation of the guarding standard. Nonetheless, he found that • use of insulated cable-handling
Higman was not given adequate notice based on MSHA’s enforcement history equipment;
at the Akron Plant. A reasonably prudent person would not have recognized
that the manner in which the equipment was guarded was no longer sufficient. • use of protective gloves to
The standard states that moving machine parts must be guarded to protect troubleshoot and test low- and
individuals from the moving parts: “[i]t does not state that moving machine medium-voltage circuits associated
parts must be totally enclosed by a guard.” 24 FMSHRC at 93. Accordingly, with high-voltage circuits;
Judge Manning vacated all nine of the guarding citations.
Based on past experience representing clients on guarding citations, • use of additional protection for cables
it would appear that an operator’s enforcement experience may vary at points where cables leave support
depending upon which region of the country the mining operation is located, systems;
whether it is a metal/nonmetal operation versus coal operation, and who the • use of more improved “quick handle”
individual inspector is. It is worth noting that the inspector who issued the disconnect devices for the purpose
citations to Higman was a recent graduate of MSHA’s Mine Safety and Health of performing work; and
Academy and he based his issuance of the citations, in part, on MSHA’s 2000
Guide to Equipment Guarding (“Guarding Guide”), which showed tail pulleys • use of barriers and interlock switches
completely enclosed by wire cages. More than one metal/nonmetal operator to help guard against contact with
has been told by MSHA personnel that if their equipment guards are identical energized circuits.
to the guards depicted in the Guarding Guide, then they should have no
concerns regarding enforcement. If, however, the guards are different from MSHA maintains that compliance with
the drawings, they become fair game for enforcement action. Further, metal/ these new regulations will result in a yearly net
nonmetal operators are told repeatedly that area guarding is absolutely savings of $23,083,980. This estimated amount
prohibited. Conversely, coal mine operators have been using area guarding includes increased productivity and cost savings
for years, where appropriate, and have been told by MSHA Coal Safety for each longwall unit that converts to high-voltage
personnel that guarding of that nature is acceptable. equipment and the elimination of legal fees and
The mining industry has taken issue with the Guarding Guide in expenses required to file Petitions for
those instances where MSHA inspectors are relying on the Guarding Guide Modification.
to determine whether a violation exists (like the Higman inspector did), as
opposed to assessing the specific circumstances of each case and applying
the reasonably prudent person standard to determine if a violation exists.
Jackson & Kelly PLLC attorneys have handled numerous cases where this
issue either has been addressed or is currently pending.
Assistant Secretary of Labor Dave D. Lauriski has determined that
an internal task force will evaluate and revise the Guarding Guide as
necessary. From industry’s perspective, the National Stone, Sand, and Gravel
Association’s Guarding Task Force will communicate to MSHA its issues and
concerns with the contents of the Guarding Guide and inconsistent
enforcement issues.
10 occupational safety & health update Summer 2002
NEGLIGENCE from page 6: RESTRUCTURING from page 6:
As a final argument against admitting the OSHA regulations, both • developing quality annual refresher
Matlack and Conoco asserted that, because he was an independent training materials for specific
contractor, Scott was not protected by the OSH Act, thereby making the segments of the industry with
regulation irrelevant. However, the court disagreed, noting that borrowing instructor guides available on MSHA’s
a safety statute as evidence of an industry’s standard of care is not the same web site;
as enforcing the Act and its regulations. Therefore, even if an individual
falls outside the protection of the Act, the statute may still be relevant as • providing for on-the-spot training
some evidence of the standard of care in the defendant’s industry, but not during mine inspections and visits by
necessarily conclusive evidence. MSHA inspectors and Education
Although this Colorado decision is significant to entities operating Field Services personnel; and
in Colorado under the purview of the OSH Act, Colorado is not alone in its
• expanding technical training
ruling. Several other jurisdictions, specifically, the Supreme Courts of
initiatives and incorporating them into
Connecticut and Iowa, along with the federal Second and Third Circuit
educational offerings.
Courts of Appeals, have held that OSHA regulations may be admitted in
negligence actions as evidence of the standard of care. Thus, all OSHA To facilitate the implementation of the
regulated entities should be aware of how their states view the admissibility initiatives, MSHA will develop a Management Plan
and relevancy of OSHA regulations. to include: (1) best practices teams, composed of
MSHA and non-MSHA personnel; (2) an evaluation
of MSHA’s strengths and weaknesses; and (3)
identification of the best practices to be used in an
effective agency management plan. That plan
SARAS from page 7: should be available shortly.
It appears that positive change is
Final Rule Stage forthcoming, and we look forward to it with great
anticipation. As MSHA officials have pointed out,
• Hazard Communication (“HazCom”): MSHA published
its strategic plan will be carried out within the
an “Interim Final Rule” on HazCom in October 2000, permitting
confines of the Mine Act, which is a strict liability
comment on a rule that had languished in the proposed stage
statute. However, the fact that the Agency
since 1990. With the change in Administration, the Agency
leadership is working to be “pro-active, not just
extended the comment period. MSHA now states that it will
reactive” is refreshing.
promulgate the final rule in July 2002.
On the OSHA front, the agency recently
• Air Quality Standards: In another significant development, announced a plan to restructure various offices in
MSHA now plans to withdraw its long-pending rulemaking a move that OSHA believes will increase the focus
plans and undertakings relative to exposure to airborne on employer-friendly compliance assistance
contaminants. programs. The restructuring plan would create a
new Directorate of Cooperative and State
• Flame-Resistant Conveyor Belts: Conveyor belts in Programs (elevating compliance assistance to a
underground coal mines are required to be flame-resistant. In directorate level) and rename the new Directorate
another drawn-out regulatory process, spanning from 1990 to of Standards and Guidance (which previously
1999, MSHA had proposed additional requirements for testing focused solely on standards development).
and approving such belts. It now announces withdrawal of In addition, the OSHA plan would
this proposal. eliminate the Office of Reinvention, a creation of
the Clinton Administration, and transfer those
• Determination of Respirable Coal Mine Dust: MSHA employees to the new Directorate of Analysis and
proposed a rule in 2000 to use single, full-shift samples to Evaluation. Labor unions have expressed
measure respirable coal mine dust concentrations. It will reopen concerns about the proposed changes, believing
the record in September 2002 to receive additional public that the proposal signals a move away from
comment on the proposal. mandatory safety and health standards towards
see SARAS page 12 worker protection based on voluntary compliance.
11 occupational safety & health update Summer 2002
VIOLATIONS from page 8: SARAS from page 11:
Mr. McAteer also recommended that THE OSHA SARA
mining operators become more directly involved Prerule Stage
in the safety of the contractors they hire.
Historically, operators have strongly opposed any • Chromium Exposure: OSHA continues to examine the
training or reporting requirements that would put possible lowering of PELs for chromium. In August 2002, it
them in a supervisory position over independent will formally request information from the public relevant to
contractors. “Ultimately,” Director Conaway possible rulemaking.
explains, “independent contractors present a
liability issue.” Nevertheless, he hopes that, given • Fall Protection in the Construction Industry: In
the widespread acceptance of responsibility for December 2002, OSHA will request further information on
safety in the industry and the increasingly fall protection in the construction industry.
collaborative atmosphere, mining companies will
become more comfortable with a limited level of • Crystalline Silica (“Silica”) Exposure: In its previous SARA,
involvement in their independent contractors’ OSHA postponed action on an anticipated proposal to lower the
safety issues. Silica PEL. The agency states that it is considering a consensus-
Mr. McAteer’s consulting arrangement based rulemaking to address silica exposure hazards. In October
with the state ended in November 2001, and 2002, OSHA will announce how it plans to proceed in this area.
OMHST has made no arrangements to work with • Hearing Loss Prevention in Construction Workers:
him further. However, given Mr. McAteer’s OSHA continues to express concern over work-related hearing
expertise in the area and his residence in the state, loss in the construction industry. The agency will issue an
the West Virginia mining industry may fairly ANPRM in this area in June 2002.
anticipate hearing more from him.
Proposed Rule Stage
• Assigned Protection Factors (“APFs”) for Final
Respiratory Protection Rule: In January 1998, OSHA
published its final rule on Respiratory Protection, leaving open
the subject of APFs, i.e., the numbers that describe the
The SAFETY & HEALTH UPDATE is published effectiveness levels of respirators in protecting against various
periodically by Jackson & Kelly PLLC, 1600 toxic substances. OSHA will address the APF issue through some
Laidley Tower, P.O. Box 553, Charleston, WV form of rulemaking, to be announced in November 2002.
25322, Telephone (304) 340-1000. The contents • Occupational Exposure to Tuberculosis (“TB”): OSHA
should not be construed as legal advice or legal issued a NPRM on work-related exposure to TB in 1997. The
opinions regarding any specific issue or factual most recent, extended comment period ends in May 2002, and
circumstance. You are urged to consult your own OSHA will announce in October 2002 the next regulatory
lawyer concerning your situation and any step to be taken.
specific legal questions you may have.
Final Rule Stage
This UPDATE is sent free of charge to clients • Signs, Signals, and Barricades: Industry stakeholders have
and friends of the Firm. Readers are encouraged asked OSHA to modernize its somewhat outdated rules on signs,
to pass copies of the UPDATE, along to others. signals, and barricades in such contexts as highway work areas,
Information contained in this newsletter may be in light of continuing updates to the incorporated 1971 ANSI
duplicated, so long as the JACKSON & KELLY standard. Anticipating widespread support for, and few
PLLC SAFETY & HEALTH UPDATE is objections to, such an updating, OSHA plans on issuing a final
acknowledged as the source. rule in May 2002.
• Occupational Injury and Illness Reporting: OSHA’s new
If you have any questions, need additional injury and illness recording and reporting rule became effective
copies, back issues, or would like a more com- in January 2002, except for two provisions regarding
plete copy of any of the materials referred to in occupational hearing loss and musculoskeletal disorders
this UPDATE, please contact Laura E. Beverage (“MSDs”). OSHA will issue a supplemental final rule in June
or Karen L. Johnston at (303) 390-0003. 2002 to deal with recording in these two areas for the years
2003 and beyond.
12 occupational safety & health update Summer 2002
