Docstoc

INSIGHTS

Document Sample
INSIGHTS Powered By Docstoc
					INSIGHTS is our environmental,
health and safety, and crisis
management newsletter, made for
                                     INSIGHTS
our clients and friends.             The Patton Boggs Resource for Safety, Health, Environmental Law and Crisis
                                     Management Newsletter
Please provide us with your                                                                           SEPTEMBER 2011
comments and forward INSIGHTS                                                                              INSIGHTS
                                     IN THIS ISSUE                                                         HOME
to anyone that might be
interested. If you provide us with    1. Silica Rule Draws Congressional and Industry Comments
email addresses, corrections or
deletions, we will adjust the         2. Congress Seeks Diesel Data, HHS in Contempt of Court
distribution list, or subscribe
online.                               3. Supercommittee to Determine Funding and Budget Cuts
                                      4. OSHA Reporting and Recordkeeping Changes
                                      5. Proximity Detection is Focus of MSHA Proposal
                                      6. EPA Releases Draft Asbestos Assessment for Comment
                                      7. Are MSHA/OSHA Air Sampling Results Credible and Capable of
                                      Supporting Enforcement?
                                      8. OSHA Target Employers for Inspections
                                      9. MSHA Pattern Notices and Impact Inspections
                                      10. Railroads, Others Ordered to Pay Whistleblowers
                                      11. Roundup of OSHA Enforcement Action
                                      12. State Enforcement Action
                                      13. CSB Calls Florida Inaction on Recommendations “Unacceptable”
                                      14. Injunction Leads to Pennsylvania Mine Closing
                                      15. Commission Reverses Judge on Safety Defects Standard
                                      16. Court Rules against MSHA on Plan Approval Process
                                      17. MSHA Orders Not Immune from Legal Challenge
                                      18. Judge Upholds MSHA $900K “Flagrant” Penalty
                                      19. Grain Elevator Firm Convicted in Teen Worker’s Death
                                      20. Illinois Firm Found in Contempt, Faces Daily Fine
                                      21. Jury Awards $7 Million in Fatal Explosion
                                      22. NJ Contractor Gets Injunction for Fall Protection Violations
                                      23. Mesothelioma Case Roundup




                                                                                                         Page 1 of 11
                                             I. ADMINISTRATION/CONGRESS
1. SILICA RULE DRAWS CONGRESSIONAL AND INDUSTRY COMMENTS
OSHA seeks to propose a multi-billion dollar, comprehensive health rule on crystalline silica dust for general industry and
construction. MSHA is expected to follow the OSHA lead and propose the same rule for mining. While the details of the rule
have not been disclosed, the OSHA measure is pending review at the White House Office of Management and Budget
(OMB) and is likely similar to an OSHA proposal released for comment in 2003, which was rejected by a small business
panel because it would have cost billions of dollars and was viewed as unnecessary.

On February 14, OSHA’s proposed rule was sent to OMB for review by its Office of Information and Regulatory Affairs
(OIRA). OIRA generally takes no more than 90 days to complete its analysis, which principally involves reviewing OSHA’s
cost-benefit assumptions. However, a steady stream of stakeholders has met with OIRA to express their concerns about
the initiative, leading OIRA to delay its release. It remains at the agency to this day.

OIRA has been told there is no need for the rule at all, since the government’s own health statistics show the incidence of
silicosis, the lung disease linked with excessive exposure to the silica, has been declining for years and is on the verge of
disappearing under current exposure limits and rules. The few cases that continue to develop are caused by non-
compliance with the existing permissible exposure limit (PEL), a problem solvable through more effective OSHA efforts,
without the need for a new rule. Yet, industry suspects that OSHA seeks a 50 percent reduction in the current exposure
limit, and perhaps an even lower action level, as well as mandated medical exams, exposure monitoring, regulated areas
and more. Besides the economic cost and lack of sound science, industry has alerted OMB to the lack of analytical
capability to accurately measure exposures below the current 100 microgram PEL. The American Chemistry Council’s
Crystalline Silica Panel puts the price tag on the new silica rule at between $3-5 billion.

In addition to industry opposition, political opposition has surfaced as well. In a letter last month, seven members of the
House Committee on Education and the Workforce called on OSHA to release the details of the proposal under
consideration, but in a new, advance notice of proposed rulemaking that would recognize current economic and scientific
conditions.

Contrary to the wide-spread industry opposition, the DC-based, National Industrial Sand Association (NISA), representing
the producers of silica sand, declared its support for a new OSHA rule with an action level as a compromise, instead of an
exposure limit reduction. NISA recommended exposure monitoring and medical surveillance when exposures reach an
action level, which NISA indicated typically is set by OSHA at half the PEL. The organization has actively sought support for
its compromise from other industry stakeholders, but instead of gaining widespread endorsements, major industry
associations have reinforced their opposition with OMB.

Yet, the NISA “compromise” threatens to snatch defeat from the jaws of an industry victory. The Obama administration has
been backpedaling on an ambitious, but economically costly, regulatory agenda it had been pushing since establishing itself
in the White House. OMB was having serious misgivings on the silica rule, based on scientific and economic input from
industry. OSHA, which has been trying to promulgate a silica rule for more than a decade, is expected to use the NISA
“compromise” to seek to convince OMB that industry is divided and a rule is necessary, regardless of the recession and the
rule’s potential adverse impact on job creation. Renewed opposition to the OSHA rulemaking and the NISA “compromise,”
however, from major stakeholders may offset the OSHA and NISA efforts and prevent the OSHA rule from harming the
economy. Contact Henry Chajet (hchajet@pattonboggs.com, 202-457-6511) for further information.




2. CONGRESS SEEKS DIESEL DATA, HHS IN CONTEMPT OF COURT
In a sweeping victory for an industry group seeking access to the data underlying a government diesel health effects study,
a judge held the government in contempt for not complying with a 2001 court order to hand over non-confidential data on
the study.

                                                                                                                   Page 2 of 11
U.S. District Court Judge Richard T. Haik granted a motion from the MARG Coalition directing two agencies of the
Department of Health and Human Services (HHS) to provide data and draft materials from seven papers prepared on the
study to MARG and a House oversight committee immediately. The agencies, NIOSH and the National Cancer Institute,
were also directed to inform all recipients of three of the seven papers, as yet unpublished, that they are prohibited from
publishing or otherwise distributing the papers for at least 90 days. MARG is expected to use that time to allow its experts to
review the documents. Judge Haik’s August 18 order also directed the government to pay plaintiffs’ legal expenses relating
to the most recent court activity and the costs of the expert MARG will employ to review the papers. HHS has appealed the
order and an expedited hearing schedule was issued by the United States Fifth Circuit Court of Appeals that should permit
a decision on the HHS appeal this year.

The first four papers dealt with industrial hygiene surveys and were published a year ago by the Annals of Occupational
Hygiene (AOH), a British professional journal. However, papers V through VII deal with health effects from exposure to
diesel exhaust and are more controversial. AOH has had the fifth paper since June 2010 but has yet to publish it. Papers VI
and VII, submitted to another scientific journal last February, also remain unpublished.

The diesel health effects study has been subject to legal oversight by MARG since the study was launched 15 years ago.
Several members of MARG, which includes salt and trona producers, contributed mines, personnel and significant
resources to the study, but were prohibited by HHS from reviewing the data collected. The industry group is represented by
the Patton Boggs Health and Safety Law Group.




3. SUPERCOMMITTEE TO DETERMINE FUNDING AND BUDGET CUTS
Part of the fractious deal that ended the summer’s debt ceiling crisis was the formation of a 12-member panel charged with
creating a plan to slice at least $1.5 trillion from projected federal borrowing over the next decade with a Thanksgiving
deadline. The group’s plan will be voted on in the House and Senate by no later than December 23. If the panel cannot
reach agreement, cuts of $1.2 trillion equally divided between defense and domestic programs will occur in January 2013.
In either case, expect the budgets of all federal agencies to be substantially impacted.

Six Republicans and six Democrats comprise what is being called the “super- committee,” shorthand for the Joint Select
Committee on Deficit Reduction. Committee co-chairs are Senator Patty Murray (D-WA) and Representative Jeb Hensarling
(R-TX). The super-committee’s work has already begun and may include a series of public hearings on the national debt,
which stands at $14.6 trillion. For more information, contact Patton Boggs partner Robert Horn.



                                               II. REGULATORY AGENCIES


4. OSHA REPORTING AND RECORDKEEPING CHANGES
OSHA will accept comments for an additional 30 days from the original deadline of September 20, 2011 (which we believe
is October 28, 2011) on its proposal to institute significant changes to its injury and illness recordkeeping and reporting
mandates. Among the OSHA proposals under consideration are increased reporting (within 8 hours) of hospitalization
injuries (in addition to fatal accidents), and an estimated 40,000 facility increase in sites covered by mandatory
recordkeeping. For further information, contact Brian Hendrix.




5. PROXIMITY DETECTION IS FOCUS OF MSHA PROPOSAL


                                                                                                                  Page 3 of 11
MSHA released a proposed rule August 31 that would mandate proximity detection devices on continuous mining machines
(CMMs) in underground coal mines. Operators would have three months to install them on CMMs manufactured after the
date of the final rule and 18 months to install them on all other CMMs. The proposal would exempt full-face CMMs; i.e.,
those which have roof bolting equipment built in and develop the full width of a mine entry in a single cut usually without
changing location.

Proximity detection devices use sensors to detect motion or an object’s proximity to another object or person, issuing
warnings when the two are too near one another then shutting down. The proposal would generally require audible or visual
warning signals when a miner gets within five feet, with stoppage at three feet. Provisions for regular maintenance and
functionality checks are included. The agency has approved three proximity detection systems, and the technology is
already in place in some 35 U.S. mines.

Three public hearings have been set. They will be in Denver, CO on October 18; Charleston, WV, October 20; and
Washington, PA, October 25. Comments are being accepted through November 14.

The agency originally planned to issue an emergency temporary standard (ETS) for proximity detection on CMMs as well as
a proposed rule to mandate the technology on other unspecified underground mining equipment. But MSHA said it dropped
plans for an ETS in favor of a proposed rule in response to a presidential directive that called on agencies to maximize
public participation in rulemaking. An ETS would have permitted public comment but only after the rule went in effect.
MSHA appears to have dropped altogether its wish to require the devices on equipment other than CMMs.




6. EPA RELEASES DRAFT ASBESTOS ASSESSMENT FOR COMMENT
EPA has released a draft toxicological assessment of amphibole asbestos in Libby, MT and is seeking public comment on
the document before handing it over for peer review to an external Science Advisory Board (SAB). Last month, the agency
announced the start of a 60-day public comment period, to end October 24. In addition, EPA will hold a public listening
session October 6 at its offices in Arlington, VA to allow interested parties to present scientific and technical comment on
the draft document.

Public comments and written comments from the listening session will be provided to the SAB, which will begin its peer
review following the close of the comment period. The agency has taken suggestions from stakeholders on who should be
on the SAB and is in the process of considering the panel’s final makeup. When finalized, the assessment will be used to
support summary information on amphibole asbestos in EPA’s Integrated Risk Information System.

The mining industry has actively engaged EPA on amphibole asbestos at Libby, the site of a public health tragedy where
vermiculite ore contaminated with asbestos and asbestos-like fibers was inadvertently spread throughout the community,
contributing to a rash of asbestos-related disease. The issue is of concern because misclassification of a Libby mineral
could have serious potential consequences for the industry.



                                                    III. ENFORCEMENT


7. ARE MSHA/OSHA AIR SAMPLING RESULTS CREDIBLE AND CAPABLE OF SUPPORTING ENFORCEMENT?
With increased agency emphasis on health sampling, employers should be aware that there have been repeated
challenges to enforcement actions where the accuracy of agency sampling results was seriously undermined by disclosures
of faulty procedures and inaccurate methods. Agency labs, while maintaining their certification, have been shown to
produce highly variable results in “round robin” testing by reports disclosed through Freedom of Information Act requests or
during discovery in citation challenges. In addition, agency inspectors have been discovered collecting health samples with


                                                                                                                 Page 4 of 11
scientifically questionable methods that contradict agency instructions.

For silica, lead, diesel exhaust and other substances, inspectors have been found out of compliance with mandated
procedures to minimize interferences or conduct proper equipment calibration and use. Moreover, MSHA and OSHA
analytical labs used for compliance determinations have been shown to induce significant errors by not accounting for
“phantom” results obtained during lab calibration or blank sample analysis, and to suffer from high “bias” compared to their
internal, “reference standard” analysis. For instance, a lead citation was recently vacated when OSHA used a calibration
device known to cause errors with certain sampling air pumps. At MSHA, silica citations have been vacated due to agency
failures to analyze for interfering materials properly, and diesel particulate carbon analysis continues to suffer from
interferences from other carbon sources that are not accounted for by agency procedures.

Even benefiting from a NIOSH distortion of the English language, redefining “accurate” sampling results as +/- 25 percent
from the true value in order to approve agency sampling and analytical methods, OSHA and MSHA can be incapable of
producing results that can carry their burden of proving an alleged excessive exposure violation by a preponderance of the
evidence. Yet, the agencies remain all too willing to mandate costly engineering controls based on their questionable
sampling and analysis results. Before employers accept on faith the accuracy of agency results, they may want to compare
them with their own results produced by reputable labs and investigate the reliability of the agency data. For further
information, contact Avi Meyerstein at Patton Boggs.




8. OSHA TARGETS EMPLOYERS FOR INSPECTIONS
OSHA recently issued its annual inspection plan under its Site-Specific Targeting* 2011 (SST-11) --http://www.osha.gov--
program to help the agency direct enforcement resources to employment sites labeled high-hazard workplaces, where the
agency believes the highest rates of injuries and illnesses occur.

The SST program is OSHA’s main programmed inspection plan for non-construction workplaces that have 20 or more
workers. High-hazard workplaces identified in the SST program reported above-average work-related injury and illness
rates, based on data collected from a 2010 OSHA survey of 80,000 larger establishments in selected high-hazard
industries. Establishments are randomly selected for inspection from a primary list of 3,700 manufacturing, non-
manufacturing and nursing and personal care facilities.

Two changes have been made to this year’s SST program. In 2010, only those establishments in the selected industries
with 40 or more employees were subject to inspections under the SST plan; this year, that number has been reduced to 20
or more. An evaluation study measuring the program’s impact on future compliance with OSHA standards has also been
introduced for the 2011 program.

In addition to the SST program, OSHA implements both national and local emphasis inspection programs to target high-risk
hazards and industries. OSHA currently has 14 National Emphasis Programs that intensify inspections related to
amputations, lead, crystalline silica, shipbreaking, trenching/excavations, petroleum refinery process safety management,
process safety management, covered chemical facilities, hexavalent chromium, diacetyl, recordkeeping, federal agencies,
air traffic control tower monitoring, primary metals and combustible dust. OSHA also has approximately 140 Regional and
Local Emphasis Programs (REPs and LEPs). For further information, contact Patton Boggs Partner Brian Hendrix.




9. MSHA PATTERN NOTICES AND IMPACT INSPECTIONS
MSHA continued its policy of tough enforcement and press releases by announcing that two Appalachian coal mines had
fallen off the compliance wagon after showing improvement briefly following their designation by the agency as potential
candidates for being pattern violators.


                                                                                                                 Page 5 of 11
In a press release issued on August 25, MSHA said it was putting two mines back on its list of potential pattern violators.
Initially, MSHA had put the two mines on its potential pattern list last November. They achieved their compliance targets
during the 90-day review period but backslid during the next five months, which merited the re-designation, MSHA said.
According to the agency, the two operations “are no longer making a good faith effort to eliminate violations.”

In other press releases, MSHA reported that 29 mines made its impact inspection list in June and July: 22 coal operations
and seven in metal/non-metal. MSHA began its impact inspection program in response to the Upper Big Branch-South Mine
disaster in April 2010. The original intent was to prevent another tragedy by targeting mines with a poor compliance history
or a high number of accidents, but the program has been expanded to include mines that have a very low probability of
experiencing a major accident, such as an aggregate mine site with three employees operating only intermittently. Some
operations have been visited multiple times.

Since April 2010, MSHA has conducted 307 impact inspections, writing 5,526 citations, 518 orders and 19 safeguards in
the process. While the agency lists reasons for the inspections, such as “operator tactics,” hazard complaints, inadequate
pre-shift examinations, poor enforcement history or accidents and illnesses, it has never provided action thresholds. Some
operators have charged the inspections are retaliatory. Operators who believe they have been subjected to unjustified
enforcement may wish to engage counsel either to assist with defense of invalid citations or discuss agency aggressive
behavior with their elected representatives. Contact Henry or Mark Savit (msavit@pattonboggs.com, 303-894-6117) for
further information.




10. RAILROADS, OTHERS ORDERED TO PAY WHISTLEBLOWERS
Four rail lines, including a New England commuter train and a Pennsylvania electric company have been penalized for
alleged violations of whistleblower statutes administered by OSHA. In five of the cases, employers were reported to have
discriminated against employees who reported alleged workplace hazards. In four other cases, the discrimination complaint
involved alleged retaliation for reporting work-related injuries. Settlements typically involved awards of between $100,000
and $150,000 for punitive and compensatory damages, plus back wages and attorney’s fees. There were two exceptions.
In a case in Washington State, an employee was awarded $300,000 for being suspended without pay for reporting a work-
related injury. In the Pennsylvania enforcement action, Hyde Electric Corp. was ordered to pay a total of $150,000 to three
union employees in lost wages and benefits after they were laid off for complaining about an alleged occupational hazard
while doing contract work at a Philadelphia high school.




11. ROUNDUP OF OSHA ENFORCEMENT ACTION
Over the past two months, OSHA has taken significant enforcement action against 31 companies, levying fines totaling $5.1
million. The firms and the penalty amounts are:
    • 2-Brothers Enterprises, Inc. (GA), $116,200
    • A-Treat Bottling Co. (PA), $110,880
    • Advance Powder Coating (OH), $159,600
    • AFL Web Printing (NJ), $170,000
    • American Pulverizer Co. (MO), $121,100
    • Americarb, Inc. (OH), $194,400


                                                                                                                  Page 6 of 11
    • AMF Bowling Centers, Inc. (TX), $112,600
    • Anchor Hocking, LLC (OH), $113,800
    • B&B Lumber Co., Inc. (NY), $152,100
    • Blue Heron Construction (NY), $147,000
    • Brenner Tank Services (WI), $114,000
    • Bushnell Illinois Tank Co. (NE), $142,400
    • Cenex Harvest States, Inc. (MT), $229,000
    • Creative Multicare, Inc. (GA), $162,000
    • DL Cattle Trading (NE), $185,600
    • Don Wartko Construction (OH), $171,600
    • Enterprise Products Transportation Co. (TX), $160,000
    • FixtureOne (PA), $169,400
    • Gainesville Tire Service Co. (FL), $153,600
    • ILAPA, Inc. (OH), $154,000
    • MM Industries (OH), $102,600
    • Meadow Gold Dairies (CO), $326,300
    • Monro Muffler Brake, Inc. (MA), $184,000
    • Northeastern Wisconsin Wood Products (WI), $378,620
    • Pallflex Co. (CT), $121,650
    • Pearce Foundry, Inc. (LA), $158,200
    • Rite Aid of New York, Inc. (NY), $121,100
    • Safas Corp. (NJ), $135,000
    • Stowe Woodward, LLC (NH), $176,000
    • T&D Metal Products, Inc. (IL), $214,830
    • Walgreens Co. (GA), $104,500
In addition, in joint federal and state enforcement action, Aerospace Defense Coatings of Georgia was fined $168,000.




12. STATE ENFORCEMENT ACTION
Cal/OSHA has cited Baxter Healthcare Corp., doing business as Baxter Bioscience, $371,250 for 11 alleged violations
relating to the death of a worker in a confined space. Two other workers were injured in a rescue attempt, with one
remaining in a coma. In Massachusetts, developer James L. Xarras has been ordered to pay a $100,000 civil penalty for
alleged violations of asbestos regulations during a renovation project in Leominster in 2009 and 2010. The project was shut

                                                                                                               Page 7 of 11
down by the state after the alleged violations were discovered.


                                             IV. CHEMICAL SAFETY BOARD


13. CSB CALLS FLORIDA INACTION ON RECOMMENDATIONS “UNACCEPTABLE”
For the first time, a U.S. Chemical Safety Board (CSB) recommendation to a state has been closed due to an unacceptable
response. In a press release issued in July, the CSB said Florida has failed to act on a recommendation that the state enact
legislation requiring state agencies and political subdivisions to comply with OSHA standards. CSB also recommended that
the state consider legislation that protects the health and safety of Florida’s public employees under OSHA, and develop
and fund a workplace health and safety consultation program for the state’s public employees that is similar to the private
sector program. Lawmakers proposed bills to provide public sector coverage, but the legislation did not pass. OSHA safety
protections only apply to private employees in the state.

In a letter to Governor Rick Scott, CSB called Florida’s inaction “unacceptable.” The correspondence came after a CSB
investigation into a methane fire and explosion in 2006 at a wastewater treatment plant in Daytona Beach that left two dead
and a third injured. CSB uncovered 33 other incidents involving chemicals covered by OSHA in the state between 2003 and
2007. The Board conducts investigations and makes safety recommendations but has no authority to issue citations or
fines, or to implement regulations.



                                                 V. LITIGATION/COURTS


14. INJUNCTION LEADS TO PENNSYLVANIA MINE CLOSING
An anthracite mine in Pennsylvania has been shut down for failing to purchase and install a wireless tracking and
communication system. MSHA obtained a preliminary injunction in July against S&M Coal Co. that brought production to a
halt at the operator’s Buck Mountain Slope Mine. MSHA said the equipment is required by the operator’s emergency
response plan and by the MINER Act of 2006. However, mine owner Darryl Koperna said he cannot afford the $35,000-
$40,000 cost of the system at his small underground operation and that, even if he could, the equipment is not necessary.
He also faulted the government for not considering the effect of the mandate on his ability to stay in business. MSHA went
to court for a preliminary injunction after the operator violated a closure order. Following the Sago, Alma and Darby
underground bituminous coal tragedies in 2006, Congress mandated that all underground coal operations, regardless of
size or coal type, install wireless communication and tracking systems.




15. COMMISSION REVERSES JUDGE ON SAFETY DEFECTS STANDARD
Faulty devices on mobile equipment are a de facto violation of an MSHA standard, the Federal Mine Safety and Health
Review Commission ruled last month in overturning an ALJ’s decision. The five-member panel said the judge erred in
interpreting Sec. 77.410(c) as allowing operators the opportunity to fix without penalty inoperable devices on mobile
equipment found to be working during the pre-shift examination but stopped functioning during the shift. The case stems
from a citation an MSHA inspector wrote coal operator Nally & Hamilton Enterprises in 2008 after finding a defective backup
alarm on a lube truck some eight hours after a pre-shift examiner had cleared the vehicle to operate. The judge said the
operator had not been given a reasonable time to fix the defect after it was discovered during the shift. But the
commissioners said the standard does not give operators that leeway. The standard states simply that “[w]arning devices
shall be maintained in functional condition,” meaning they must be capable of performing on an uninterrupted basis, the
judges said.



                                                                                                               Page 8 of 11
16. COURT RULES AGAINST MSHA ON PLAN APPROVAL PROCESS
A U.S. District Court ruled last month that six coal operators could move forward with a legal claim that MSHA administered
its plan approval process in a way that denied them procedural and substantive due process. The decision may become
significant because it sets up a court challenge involving the way MSHA’s process works for reviewing mine plans that
require MSHA approval.

Underground coal operators are required to develop mine plans covering certain critical functions, such as ventilation,
emergency response and roof control, but these plans cannot be implemented until approved by the agency. The process
often includes negotiations, but questions arise when disagreements cannot be resolved, MSHA imposes burdensome
restrictions or the agency takes longer to approve a plan than the operator thinks is necessary. The Mine Act and the
regulations create a procedure for litigating the issue before the Federal Mine Safety and Health Review Commission, but
operators have found the procedure unsatisfactory. The District Court case involved a denial by MSHA’s District 4 to allow
the operators to use scrubbers on continuous mining machines to filter coal dust. In a setback for the agency, the Court
said it had jurisdiction to hear the operators’ complaint. MSHA had sought the dismissal of the case based on a lack of
jurisdiction and for an alleged failure of the operators to state an actionable claim. The government may now seek review of
the judge’s decision on the jurisdictional issue, or the case could proceed to trial on whether or not MSHA’s process for plan
approvals violates due process.




17. MSHA ORDERS NOT IMMUNE FROM LEGAL CHALLENGE
Sec. 105(b)(2) of the Mine Act is a “model of near-perfect clarity” because it unambiguously conveys congressional intent
that a mine operator may seek temporary relief from any modification or termination of any order, an appeals court ruled
recently in a precedent-setting case. The decision by the U.S. Court of Appeals for the D.C. Circuit overturns a Review
Commission decision denying Performance Coal Co. relief from restrictions MSHA imposed upon it under a modification to
a Sec. 103(k) order the agency issued following the Upper Big Branch (UBB) Mine explosion. So-called “K” orders give
MSHA direct authority to insure the safety of individuals at a mine following an adverse event and require the operator to
seek MSHA approval for rescue or recovery operations or resumption of normal operations. In Performance’s case,
MSHA’s K order has been modified more than 60 times, expanded to include the accident investigation and remained in
effect more than 16 months after the April 2010 accident.




18. JUDGE UPHOLDS MSHA $900K “FLAGRANT” PENALTY
A judge has affirmed $905,825 in penalties against an anthracite coal operator that includes first-ever fines MSHA levied
under its new flagrant violation enforcement tool. R&D Coal Co., Inc. had originally contested six flagrant violation penalties
but withdrew its contest and entered into a judgment for the full penalty amount in documents signed last month. MSHA’s
enforcement action came after a miner was killed at the Pennsylvania operation in an alleged methane explosion in October
2006. The accident occurred just four months after Congress approved the MINER Act, which included a new flagrant
penalty provision setting a maximum fine for each such violation at $220,000. The R&D Mine is no longer operating and has
been sealed.




19. GRAIN ELEVATOR FIRM CONVICTED IN TEEN WORKER’S DEATH
Tempel Grain Elevators plead guilty to violating OSHA regulations in the death of a 17-year-old employee who was

                                                                                                                  Page 9 of 11
engulfed after climbing into a grain elevator in Colorado in 2009. A U.S. magistrate sentenced the company to five years’
probation. The company must also pay $500,000 to the victim’s family. In addition, during the probationary period, the
company is prohibited from hiring anyone under the age of 18 at its grain elevator sites. It also must provide safety training
to new employees, refresher training to all employees biannually, develop a process for safely accessing its grain elevators
and pay a $50,000 OSHA fine.




20. ILLINOIS FIRM FOUND IN CONTEMPT, FACES DAILY FINE
An Illinois company specializing in feed ingredients for the pet food industry has run afoul of OSHA for allegedly refusing to
allow OSHA inspectors into one of its plants to monitor employee exposures following a court order to permit the inspection.
A judge found Alpha-based All-Feed Processing & Packaging in contempt for allegedly failing to allow OSHA into its facility
in Galva and imposed a $500 a day fine, retroactive to May 4. OSHA said the fines would be purged, but not court costs or
attorney fees, once it is allowed to conduct employee monitoring for dust and noise under normal plant operating conditions
without interference. OSHA returned to the plant following a January inspection in which the agency cited All-Feed for
allegedly failing, repeatedly, to provide respirators and monitor employees’ exposure to dust. OSHA proposed $167,090.00
in fines. The violations landed the company in OSHA’s Severe Violator Enforcement Program, a tool aimed at employers
who show indifference to safety law, and brought on the return visit.




21. JURY AWARDS $7 MILLION IN FATAL EXPLOSION
The family of a West Virginia man killed in an explosion in January 2007 has been awarded $7 million after a two-week jury
trial. AEP and a subsidiary, Ohio Power Co., were found negligent in the case related to an explosion related at a hydrogen
storage tank at AEP Service Corp.’s Muskingum River facility in Ohio.




22. NJ CONTRACTOR GETS INJUNCTION FOR FALL PROTECTION VIOLATIONS
OSHA has secured a consent order and an injunction that requires a New Jersey general contractor to provide fall
protection equipment to employees working from heights and proper scaffolding for employees installing roof trusses. The
action was taken last month against Sayre-based Sousa Contactors, Inc. at its West Windsor construction site. OSHA said
that despite a $107,900 fine in June involving fall hazards, inspectors repeatedly observed workers placed in imminent
danger by installing roof tresses 35 feet above the ground without fall protection. Under the consent order, Sousa must also
take a number of other steps to assure workplace safety, including employing an individual with construction safety training
on all its worksites and providing a 10-hour construction safety course to all employees before October 1. In addition, it
must pay $54,250 in previously unpaid fines that have become final orders.




23. MESOTHELIOMA CASE ROUNDUP
Juries in New York awarded two men $51.5 million after they developed mesothelioma from exposure to asbestos on the
job. $32 million went to a Navy veteran who developed the disease after working as a boiler tender aboard naval vessels
over a 17-year period. A carpenter received $19.5 million following three years’ exposure to asbestos-containing drywall
joint compound. The carpenter’s illness is a rare form of mesothelioma that afflicts testicular tissue.

In California, a former commercial painter and handyman was awarded $8.5 million after exposure to asbestos-containing
construction materials. A military veteran who worked in the boiler room aboard U.S. Navy ships for a decade was awarded
$2.5 million by a San Diego jury.

                                                                                                                 Page 10 of 11
The family of a deceased Virginia state trooper received a $282,685 award after alleging the man had contracted
mesothelioma watching mechanics at state inspection stations blow out asbestos from automobile brakes. He also served
at the Norfolk naval shipyard during World War II.




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 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 Brian Hendrix (bhendrix@pattonboggs.com) at
202-457-6543.

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.




You may receive INSIGHTS from other people, which often occurs. To SUBSCRIBE, change your address or to change your e-mail format, simply
click here. To UNSUBSCRIBE or OPT-OUT, simply e-mail INSIGHTS@pattonboggs.com with "UNSUBSCRIBE" in the subject line. To correspond with
INSIGHTS, send your message to INSIGHTS@pattonboggs.com. Thanks.




                                                                                                                             Page 11 of 11

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:8
posted:10/16/2011
language:English
pages:11