INSIGHTS by suchenfz


									INSIGHTS is our
environmental, health and
safety, and crisis
management newsletter,            The Patton Boggs Safety & Health and Crisis Management Newsletter
made for our clients and                                                                                     AUGUST 2009
                                  IN THIS ISSUE
Please provide us with your       1. Safety Advocates Nominated to Lead MSHA and OSHA
comments and forward
INSIGHTS to anyone that           2. GAO Raps OSHA on Voluntary Protection Program
might be interested. If you
provide us with email             3. MSHA, NIOSH Document Working Relationship in MOU
addresses, corrections or
deletions, we will adjust the     4. GAO’s Part 48 Training Recommendations Unresolved
distribution list, or subscribe
online.                           5. Metal/Nonmetal to See Stepped Up Health Sampling Program
                                  6. MSHA Holds Hearing on Coal Dust Monitor
                                  7. Crandall Canyon Accident Curbing Utah Coal Operators’ Production
                                  8. Tension Remains Between Oregon Producers, MSHA
                                  9. Ten Firms Face Big Dollar Fines from OSHA
                                  10. Chemical Safety Board: Recent Incidents
                                  11. Court Rules for MSHA in Road Jurisdiction Case
                                  12. MSHA Drops Part 46 Citation, But More Enforcement Action Likely
                                  13. Review Commission Upholds Big Fine in Miner’s Death
                                  14. Mesothelioma Court Case Roundup
                                  15. New ASTM Standard to Play Role in OSHA Silica Rulemaking
                                  16. Patton Boggs’ Webinar, Workshop Scheduled

                                   I.      ADMINISTRATION/CONGRESSIONAL ACTION


               A former union safety and health official has been tapped to run the Mine Safety and Health
               Administration (MSHA), and a scientist with extensive worker advocacy credentials is the
               President’s choice to lead the Occupational Safety and Health Administration (OSHA).

               The nominee for the mine safety agency is Joseph A. Main, 60, a native of Pennsylvania’s
               bituminous coalfields who began working in coal mines in 1967. He quickly became an advocate
               for miners’ safety as a union safety committeeman and served in various local union positions in
               the United Mine Workers (UMW).

               In 1974, Main was named a special assistant to the union’s president andtwo years later, he
               joined the safety division. In 1982, he was appointed Administrator of the UMW Occupational
               Health and Safety Department, a position he held for 22 years. At the time of his MSHA
               selection, he had retired from the union and was working as a safety consultant.

                                                                                                      Page 1 of 9
                                                Patton Boggs LLP |   INSIGHTS Newsletter   |   August 2009

The UMW lobbied hard for Main’s appointment, and, as Assistant Secretary, he is expected to
bring a strong union perspective to the post. This is likely to mean heavy emphasis on
enforcement and greater attention to health issues. His confirmation, probably in the fall, is
virtually assured.

MSHA’s top job has been vacant since the departure in January of Richard Stickler, a Bush
Administration pick, who resigned to make way for the incoming administration.

Dr. David Michaels, currently a research professor in the environmental and occupational health
department at George Washington University in Washington, D.C., is the nominee at OSHA. An
epidemiologist, Michaels has conducted numerous studies of the health effects of occupational
exposure to toxic substances, including asbestos, metals and solvents.

Michaels has written extensively on science and regulatory policy and directs the Project on
Scientific Knowledge and Public Policy. He is the author of a recent book that purports to
demonstrate how regulated entities use scientific studies to sow doubt as a tactic to delay or kill
proposed health regulations.

Michaels’ previous government experience includes service in the Department of Energy in the
Clinton Administration. While there, he was credited with developing a successful initiative to
compensate nuclear weapons workers who developed occupational illnesses from exposure to
radiation, beryllium, silica and other hazards.

Michaels’ agenda for the safety agency is not known, however, he will likely push to improve
injury and illness reporting, and emphasize strong enforcement and more health rules.


The Government Accountability Office (GAO) has noted shortcomings in OSHA’s Voluntary
Protection Program (VPP) that GAO claims are significant enough to call the success of the
program into question.

OSHA has touted VPP as a successful model for how to stretch the agency’s limited resources
effectively to promote safe and healthy workplaces. VPP recognizes sites with exemplary safety
and health systems and relatively low injury and illness rates for their industries. In return, OSHA
exempts VPP sites from routine inspections, although not from inspections resulting from fatalities
or other serious injuries or from complaints by workers about allegedly unsafe conditions.

But GAO found that OSHA had failed to develop goals or measures to assess the performance of
the VPP, and that the agency’s efforts to evaluate the program’s effectiveness have been
inadequate. While OSHA said low injury and illness rates were effective measures of
performance, GAO found discrepancies between rates reported to OSHA and rates its personnel
noted during on-site reviews.
The impact of VPP on sites’ illness and injury rates has also gone unmeasured, claims GAO.
This criticism was also contained in a 2004 GAO audit of the program. After the earlier audit,
OSHA hired a firm to study the VPP’s effectiveness, but the effort flagged due to design flaws and
low participation rates, and OSHA did not revive the effort afterwards.

GAO also said OSHA lacked sufficient internal controls to assure only qualified sites participate in
VPP. For instance, there is no policy requiring documentation of follow-up of fatalities or serious
injuries at VPP sites. As a result, some sites that no longer met VPP criteria remained in the

In response, OSHA pledged to incorporate GAO’s findings “into a broader review and evaluation
of VPP.” That review is currently underway. In a related move, OSHA has announced it is doing
away with a system that required its regions to meet a quota for signing up new VPP members.

                                                                                               Page 2 of 9
With new leadership under the Obama Administration, there is concern VPP might be significantly
downgraded at the agency in favor of enhanced enforcement.

Patton Boggs will hold a webinar on Sept. 15 to explain employers’ risks under the Occupational
Safety and Health Act. See item #16 below for details on how to sign up.


MSHA and the National Institute for Occupational Safety and Health (NIOSH) have signed a
memorandum of understanding (MOU) that sets forth procedures for regular communications,
including sharing of what the agreement calls “sensitive” information before it is released to the

The stated purpose of the MOU is to provide an understanding between the two parties “to
consult, coordinate, and cooperate effectively and efficiently” in carrying out their respective

The MOU specifies the need for regular communication at all levels, including communications at
least quarterly between Mike Davis, Deputy Assistant Secretary for Operations at MSHA, and Dr.
Jeff Kohler, Director of NIOSH’s Office of Mine Safety and Health Research. Davis and Kohler
are to formally define assistance that requires either agency’s resources. At a meeting in the last
quarter of the year, each agency’s prioritized plans for the coming year are to be shared.

The MOU envisions that NIOSH will share its planned intramural and extramural research
programs with MSHA, while MSHA provides its rulemaking and compliance priorities to NIOSH.

Regarding sensitive information, the agreement states the parties “will consult with each other
when sensitive information, data, and other technical papers related to mine safety and health
issues are produced for dissemination to the public.” Further, each agency will give the other “a
reasonable amount of time for consultation and comment” before releasing sensitive information.

The provision is seen as a reaction to persistent attempts by the Methane Awareness Resource
Group (MARG) Coalition to obtain information on a long-term study NIOSH is engaged in to
determine the effects of diesel particulate on underground miners. MARG counsel Henry Chajet
of Patton Boggs LLP was told more than a year ago that the study was essentially complete.
Moreover, John Howard, then-Director of NIOSH, said in April 2008 he expected study findings
to be released by the end of last year. However, NIOSH has denied that the study is done. In
addition, findings have not been turned over to congressional oversight committees, as mandated
by a long-standing congressional order.

The document is in effect through December 2011 and replaces a 1984 agreement between
MSHA and the old Bureau of Mines. The MOU also fulfills a promise made in response to a 2007
audit by the GAO, which recommended the two organizations ink a working relationship.


MSHA has yet to resolve several recommendations about the agency’s Part 48 training approval
process made two years ago by the Government Accountability Office (GAO).

In its May 2007 audit, prepared at the request of several members of Congress, GAO found four
program deficiencies. MSHA, auditors said, did not (1) require instructors to take continuing
education credits, (2) maintain effective contact with its approved instructors, (3) enforce a firm
set of criteria for rendering new instructors as “approved,” or (4) monitor enough training sessions
to assure instructors were effective. MSHA agreed with the recommendations and outlined the
steps it pledged to take to address the problems.

Even before formal release of the critical report, MSHA reached out to NIOSH for assistance in
addressing them. However, the Institute failed to respond because, according to NIOSH,

                                                                                            Page 3 of 9
MSHA’s request was never elevated to the top brass in its mining research office. As a result,
effective corrective action by the safety agency has floundered.

For instance, the continuing education credit issue died for lack of funding. As for maintaining
contact with its approved instructors, the agency undertook an initiative to survey them to assure
they understood all training requirements. Although that effort was completed, a second program
to create new electronic reports for tracking approved instructors remains in the pilot phase.

To address GAO’s comment about setting firm instructor approval criteria, MSHA said it was
updating a handbook, a job it hoped to have completed by the end of next month. GAO did not
say how many instructor training sessions needed to be monitored, but the agency does not have
the resources to monitor more than a handful of its 50,270 approved instructors.

                                II.      REGULATORY UPDATE


MSHA is putting the final touches on an aggressive new health sampling program in metal/non-
metal mining.

Under the program, expected to kick off after Oct. 1, inspectors will collect samples of nine
substances regulators consider as serious hazards at mines where these substances have been
previously identified. They are asbestos, beryllium, calcium oxide, cristobalite, cyanide, ground
silica, lead, mercury and radon. The list will be reissued each year, absent substances for which
successful interventions were undertaken.

A second list will be made up of nine additional hazardous contaminants as well as reported
musculo-skeletal disorders (MSD). Besides MSD, the substances are chromium VI, diesel
particulate, noise, quartz, radon, silver, sulfuric acid, talc and welding fume components. Two will
be evaluated each year over the next five years. In addition to sampling, inspectors will evaluate
engineering controls, if any, and determine if miners’ personal protective equipment is


A breakthrough new coal dust sampling device is on the way, but before it can be introduced into
mines, MSHA has to lay the groundwork by changing its regulations.

The Agency issued a proposed rule in January to revise 30 CFR 74. On July 8, it held a hearing
to take stakeholder testimony on the sampler, which takes measurements of respirable coal dust
in real-time.

The new technology is a breakthrough because it would give miners and operators the
opportunity to immediately implement control measures in the event of an overexposure. Under
the current method, the sample must be analyzed off-site, a process that can take weeks. The
resultant delay greatly minimizes the opportunity to introduce effective controls.

The proposal was necessary because the existing regulatory requirements, issued in 1972, are
design-specific and do not permit the approval of any sampling device built differently than the
device currently in use, the coal mine dust personal sampling unit.

The proposed rule would establish performance-based requirements for approval of the new
personal monitoring device and allow for continued innovation. It would also update application
requirements for the existing sampler.

Six persons gave testimony at the hearing. Three represented the United Mine Workers; one, the
Bituminous Coal Operators Association; and two, vendors. All spoke in favor of the regulatory
change. The post-hearing comment period closes Aug. 14.

                                                                                          Page 4 of 9


Concerned about another coal disaster like Crandall Canyon, MSHA is being hard on Utah
operators who seek to mine reserves deep underground. One mine operator after another in the
state has abandoned efforts to extract deep coal reserves in the face of tough requirements from
the skittish mine safety agency.

MSHA ordered a new method of longwall mining be used this winter at the West Ridge mine that
effectively cut its reserves in half. A year ago, Utah’s largest coal operator, Arch Coal, Inc., gave
up on a deep coal seam at its Dugout mine in Central Utah, leaving four million tons behind.
Hidden Splendor Resources, Inc. withdrew from a coal section at its Horizon mine after MSHA
put it on a potential pattern of violations list in March. The mine had reported 26 roof falls over
the past two years.

The agency’s caution comes after MSHA took severe criticism for approving amendments to a
roof control plan at the Crandall Canyon Mine that allowed miners to extract coal from support
pillars about 2,000 feet below the surface during retreat mining. A ground fall occurred in August
2007, trapping six miners. Those six miners perished, and three other men died several days
after the initial ground fall while attempting to rescue the trapped miners.


Oregon aggregate producers had hoped to bury the ax with MSHA when they met with regulators
July 15 in Salem, the state capitol.

The meeting between the Oregon Independent Aggregate Association and Neil Merrifield, Acting
Administrator for Metal/Non-metal, did much to clear the air. However, tension was clearly
evident between producers and Western District Manager Art Ellis during a mine tour set up in
conjunction with the visit and at a second meeting with representatives of the Knife River

Operators had been concerned about uneven and excessive enforcement, and being unable to
get Ellis’ ear to try and work out disagreements. Many enforcement issues revolved around
guarding and highwalls.

Merrifield said a statistical review of enforcement data did not substantiate what he called
“enforcement abuse.” However, guarding and highwall citations are up over last year. He agreed
to dispatch both a guarding specialist and a highwall specialist to provide instruction to the
producers and to personnel in MSHA’s Albany (OR) Field Office. The idea is that consistency
should follow if both parties receive the same instruction, which is scheduled for mid-August.

As for the complaint about communications, Ellis expressed surprise and said he “prided himself”
on returning every phone call within 24 hours.


OSHA has assessed fines totaling $2.41 million against 11 companies for safety and health
violations. The companies, fines and brief description of the alleged violations are:

     •   Bob Dean Enterprises, Inc., Dean Building Holdings and Louisiana Health Care
         Consultants, LLC, (Louisiana), $112,000, asbestos
     •   Delek U.S. Holdings, Inc., (Texas), $217,350, process safety management
     •   Domtar Maine Corporation (Maine), $107,000, various
     •   East Central Machine & Tool Co. (Missouri), $117,900, machinery
     •   Hess Corp., (New Jersey), $141,500, process safety management
     •   JSW Steel (USA), Inc., (Texas), $146,500, confined spaces, lockout, guarding
     •   Milk Specialties Global (Wisconsin), $1.14 million, various

                                                                                            Page 5 of 9
      •   Sturm Ruger & Co., Inc. (New Hampshire), $255,150, various
      •   W.G. Yates & Sons Construction, (Mississippi) $173,000, shoring.



The Chemical Safety Board is investigating three accidents since May that have left four people
dead. An anhydrous ammonia leak last month at Tanner Industries’ plant in South Carolina killed
a motorist driving on a nearby road and injured seven others.

Three persons died and more than 20 were injured in an explosion, fire and roof collapse in June
at a ConAgra Foods plant in North Carolina. The accident apparently was caused by release of
natural gas and ammonia. In May, flammable vapors from the Veolia Environmental Sciences’
facility in Ohio led to an explosion and fire that seriously injured two workers and damaged 20

                                  V.      LITIGATION/COURTS


MSHA has won a five-year-old battle to extend jurisdiction over a private road that is not fully
dedicated to mine traffic.

The ruling by a three-judge panel of the D.C. Court of Appeals last month is important because it
allows MSHA to selectively enforce its regulations on private mine haul roads that are also used
for other purposes. There are believed to be thousands of miles of private mine roads shared by
a limited number of other users across the country today.

The current case involved a 4.3-mile stretch of private, paved road that provided the only access
to and from National Cement Company of California’s Lebec cement operation in Southern
California. Heavy cement trucks make some 45,000 trips over the road during the year. But the
road is also used by the various enterprises of Tejon Ranchcorp, which owns the road and
270,000 acres surrounding it. Utilities and state and federal authorities also use the roadway.

Tejon leases the road to National Cement, which takes care of maintenance and upkeep.

In 2004, an inspector cited National Cement for failing to install berms along various sections.
The company appealed and Tejon entered the case as an intervenor on behalf of the company.
Thus began a protracted court proceeding that saw the case jump back and forth between the
Review Commission and the appellate court and featured shifting positions by MSHA as to its
definition of a mine.

In the end, the Court gave deference to the Agency’s position that it could regulate mine traffic
while keeping its hands off non-mine traffic. Interestingly, MSHA’s stance was a sharp departure
from one taken in the early 1990s, when the Agency vacated an identical citation against National
Cement, claiming it did not have jurisdiction.

The Court left open the possibility that Tejon itself could be considered a mine operator because
it derived revenue from cement sales for the company’s use of the road. Attorneys for National
Cement and Tejon have not yet decided whether to appeal.

Due to this profoundly significant ruling, mine operators may wish to consider changes to legal
agreements covering access to private haul roads. Contact Henry Chajet
(; 202-457-6511) for assistance.

                                                                                           Page 6 of 9

MSHA has vacated a citation charging that a Wisconsin aggregate producer failed to provide
experienced miner training to a contract fuel delivery driver. The decision, however, could be the
opening salvo by the agency to extend its entire Part 46 training rule to fuel delivery drivers and to
hold mine operators accountable for violations.

Milestone Materials was cited earlier this year after an inspector saw a fuel delivery driver move
unaccompanied throughout the producer’s refueling mine equipment. MSHA held that the driver
met the definition of a miner under the training rule, and thus was required to have training as a
newly hired experienced miner.

The agency contended that the driver was exposed to mine hazards and was on mine property
for “frequent and recurring” periods, a designation essential for classifying the driver as a miner.

At a hearing, the operator disagreed that the driver’s presence was frequent and recurring, and
argued the phrasing was irrelevant anyway because, under Part 46, it did not apply to fuel
delivery drivers. In addition, the driver met three requirements under the regulation for exemption
from miner status.

MSHA subsequently dropped the citation before the judge issued a ruling, but left open the
possibility it would continue to cite operators for similar alleged infractions in the future.
Operators should get advice from counsel on how to avoid adverse MSHA action in this area.
Contact Henry Chajet ( or 202-457-6511) for assistance.


The West Virginia Supreme Court has upheld a $1.9 million settlement of a wrongful termination
award against a coal operator who allegedly dismissed a miner for seeking workers’
compensation (WC) benefits after a mine accident.

The decision went against Rivers Edge Mining, Inc., which had released George M. Peters after
he suffered a lost-time injury. The operator terminated Peters for allegedly violating a provision of
the collective bargaining agreement that dealt with return to work after injury. However, the miner
countered that his dismissal was in retaliation for filing a WC claim.

A jury agreed and the Court upheld the decision to award $885,107 in compensatory damages
and $1 million in punitive damages.


Juries around the country have recently awarded more than $31.6 million in a half-dozen lawsuits
triggered by disease relating to plaintiffs’ alleged exposure to asbestos. Asbestos fibers are
linked to various diseases, including mesothelioma, a deadly cancer of the lining of the lung and
stomach. The mesothelioma case results are as follows:

      •   $12.1 million to a retired Navy machinist against Lone Star Industries and John Crane,
      •   $8.4 million to a former drywaller against Hamilton Materials, Inc.
      •   $4.5 million to the family of a deceased construction worker against Bondex International,
          Inc. and Conwed Corp.
      •   $3.4 million to the family of a deceased asbestos transite plant worker against Advocate
          Mines Limited.
      •   $2.5 million to the family of a deceased spouse of an asbestos worker against Union
          Asbestos & Rubber Co.; UNARCO Industries, Inc.; Pneumo Abex, LLC; Honeywell
          International, Inc.; Johns-Manville; Raybestos-Manhattan; Owens-Illinois; Owens
          Corning; and Metropolitan Life Insurance Co.
      •   $700,000 to the family of a deceased mechanic’s assistant against Garlock Sealing

                                                                                            Page 7 of 9
                                    VI.     OTHER ACTIVITIES


Rule writers at OSHA have a new ASTM standard on silica in construction to consider as they
continue work on a proposed rule covering the mineral.

Standard E 2625-09 addresses practices for controlling occupational exposure to respirable
crystalline silica in construction and demolition activities. According to ASTM, the standard is
intended to (a) protect against clinically significant disease from exposure to respirable crystalline
silica, (b) be measurable by techniques that are valid, reproducible, and readily available and (c)
be attainable with existing technology and protective practices.

The standard is a companion set of practices and criteria to E 1132-99a, a non-industry specific
standard ASTM released several years ago. Work on the construction standard was launched
after the committee working on 1132-99a realized the unique nature of construction and
demolition work required a separate standard.

A silica health effects and risk assessment document in support of OSHA rulemaking is currently
undergoing peer review. In its most recent semi-annual regulatory agenda, OSHA did not put a
date on when it would release a proposed silica rule. However, MSHA has committed to an April
2011 date for release of its own proposal on silica.

In both rulemakings, the ASTM standards will be given considerable weight because they are
considered national consensus standards. Under the Occupational Safety and Health Act,
national consensus standards are accorded such significance that OSHA is required to explain
why a standard it adopts varies from a national consensus standard.

MSHA’s responsibility to consider national consensus standards arises from a 1995 technology
transfer statute that encourages government agencies to use consensus standards.


Patton Boggs attorneys will address OSH Act criminal prosecution, liability risks and preventive
measures in a webinar set for Sept. 15. Contact Beth Callaghan
( or 202-457-6091) for details.

We will also put on a workshop on MSHA’s alternate case resolution initiative (ACRI) Aug. 25-27
at our offices in Denver. The workshop helps the aggregate industry level the playing field during
disputes with MSHA over enforcement actions by providing skills necessary to effectively
participate in the ACRI process. The event is co-sponsored by the Colorado Stone, Sand &
Gravel Association. Go to to sign up.

 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: or contact Henry Chajet
 ( at 202.457.6511, Mark Savit ( at 202-
 457-5269, or John Austin ( at 202-457-6167

                                                                                             Page 8 of 9
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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