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IN THIS ISSUE
Obama Directive Aims to Ease Regulatory Burden
Kline Seeks Data on Advance Notice, MSHA Injuries
OSHA Inconsistent on Safety Incentive Program Criteria, GAO Says
IARC Claims Diesel Exhaust Causes Cancer
MSHA Adopts OSHA’s Fall Protection Standard but Uncertainty Remains
Hard Hat Standard is Subject of OSHA Final Rule
Lung Disease Found in Surface Coal Miners
NIOSH, OSHA Issue Alert on Fracking Hazards
MSHA Impact Inspections Target 17 Coal Mines
Roundup of MSHA and OSHA Whistleblower Cases
CSB Probes Fatal Arkansas Blast
Board to Hold Public Hearing on BP Oil Rig Disaster
Commission Says MSHA has Access to Medical Records
Lack of Toilet Leads to $322,000 Jury Award
DOL Goes to Court to Collect Fines
Five Firms Settle with OSHA over Safety, Whistleblower Issues
Mine Operator Wins Weigh Scale Case
Safety Officer Sentenced for Falsifying Records
Mesothelioma Case Roundup
1. OBAMA DIRECTIVE AIMS TO EASE REGULATORY BURDEN
The intent of an Executive Order (EO) President Obama issued in May purports to ease regulatory burdens by giving stakeholders a greater voice in the regulatory review process and requiring federal agencies to pay special attention to initiatives that would benefit small businesses.
EO 13610 requires agencies to regularly invite suggestions from the public on regulations that should be reviewed to help those agencies determine whether existing regulations are justified and whether they should be modified because of changed circumstances, including the advent of new technologies. Suggestions to be given priority are those that will produce significant monetary savings or reduce paperwork burdens while maintaining protections. Special consideration must also be given to initiatives that would reduce unjustifiable regulatory burdens or simplify or harmonize regulatory requirements imposed on small businesses. Cumulative effects of an agency’s regulations must also be taken into account.
The new mandate represents an expansion of provisions in a previous EO, issued in January 2011. It required agencies to engage in periodic review of existing significant regulations and to develop plans for such reviews to determine if those regulations should be changed or repealed.
EO 13610 also requires agencies to report on the status of their regulatory review efforts to the Office of Management and Budget (OMB). The first such draft reports are due September 10, and on the second Monday of January and July of every year thereafter. Final reports are to be made available to the public within three weeks of their submittal to OMB.
Although the EO is a presidential mandate, agencies have an out as they have been instructed to comply “consistent with law, agency resources and regulatory priorities.”
2. KLINE SEEKS DATA ON ADVANCE NOTICE, MSHA INJURIES
A leading critic of MSHA in the House of Representatives is putting heat on the agency over regarding the lack of advance notice of inspections provided by MSHA and the agency’s poor record of injuries and illnesses for its own employees.
Representative John Kline issued a letter to MSHA chief Joe Main asking for information on advance notice, including if any federal inspectors have been charged with providing it illegally. The action came in response to suggestions made by a former superintendent of the Upper Big Branch-South Mine during a court proceeding that MSHA inspectors might have engaged in the practice. Giving advance notice of inspections by anyone, including MSHA personnel, is prohibited under the Mine Act.
In a second letter, the Minnesota Republican, who chairs the Committee on Education and Workforce, noted that MSHA’s injury and illness rates far exceed those of the industry it regulates as well as those of its sister agency, OSHA. The data raise “serious concerns” about the effectiveness of MSHA’s prevention activities, according to the Congressman.
Congressman Kline’s second letter asked Main to provide information on all injuries and illnesses experienced by MSHA personnel since FY 2007. His request also included all evaluations of MSHA’s safety and health program and all management initiatives to reduce employees’ injury and illness rate.
At a seminar last month, Main appeared to turn the tables on Kline, saying that, because MSHA’s hearing loss claims experience is so much worse than that in the mining industry, MSHA is taking a closer look at what is behind the difference. What the agency is doing exactly was never made clear, but Main stopped short of saying hearing loss would be the subject of a special audit initiative.
3. OSHA INCONSISTENT ON SAFETY INCENTIVE PROGRAM CRITERIA, GAO SAYS
After finding inconsistencies in OSHA’s criteria for safety incentive programs throughout its voluntary programs, the Government Accountability Office (GAO) has called on the agency to standardize the criteria in OSHA’s Voluntary Protection Program (VPP), Safety and Health Achievement Recognition Program and others. GAO also found that OSHA’s field operations manual contained no guidance for inspectors to educate employers about the importance of a positive safety culture. Additionally, the manual lacked guidance about the potential effects on injury reporting of different types of safety incentive programs and other workplace safety policies, GAO said in a report released in May.
In a letter response, OSHA chief David Michaels said policy guidance to cover all agency cooperative programs would be issued soon. The guidance will extend the current policy that prohibits participation in VPP if an employer’s incentive program has the potential to discourage reporting. He also noted that OSHA had already issued a guidance enforcement memo to its inspectorate regarding incentive programs. That policy, issued in March, described four potentially discriminatory policies that could discourage employees from reporting injuries and/or illnesses, and thus run afoul of anti-discrimination laws or whistleblower statutes.
OSHA launched a special emphasis program in 2009 targeting alleged injury underreporting. That program has ended, and the agency said it found recordkeeping problems in two-thirds of the inspections it carried out.
II. REGULATORY AGENCIES
4. IARC CLAIMS DIESEL EXHAUST CAUSES CANCER
The International Agency for Research on Cancer (IARC), an organization whose decisions are not subject to review in the United States, has concluded that diesel exhaust causes lung cancer in humans. In so doing, the group recommended that exposure to diesel exhaust be reduced worldwide.
IARC’s conclusion was based on two flawed U.S. studies released earlier this year that purportedly found an increased risk of lung cancer among a group of 12,000 underground non-coal mine workers. The studies, done by NIOSH and the National Cancer Institute (NCI), reported higher cancer rates as exposure increased. For nearly 20 years, the Mining Awareness Resources Group (MARG), represented by Patton Boggs, has fought to ensure that the studies were conducted properly and transparently, leading a U.S. district court to find that the study process violated the Federal Advisory Committee Act.
Since its release, the NIOSH/NCI research has been sharply criticized for its puzzling conclusions and imprecise approach. The study implausibly concluded that smokers were less likely to develop cancer than non-smokers and that above-ground workers faced higher risk than those in confined underground mines. Critics also have noted that study investigators did not measure diesel exhaust exposure directly. Rather they measured exposure to carbon monoxide, an imprecise surrogate. The research also covered a period when exposure to diesel exhaust was much higher than it is today.
IARC’s decision is likely to have a snowball effect across many industries and has already spurred lawsuits by employees and others claiming they were injured by diesel exhaust exposure. The IARC ruling likely will influence the U.S. National Toxicology Program (NTP) to upgrade its carcinogenic classification of diesel fumes when it meets to prepare its biennial carcinogens report, due in 2013. IARC and NTP carcinogen classifications are also required to be listed on safety data sheets under OSHA’s 2012 Hazard Communication Standard. The most profound impact is expected to be a sharp surge in lawsuits against companies in industries as varied as oil, automotive, mining, trucking, railroads, engine manufacturing, farm equipment, and construction.
MARG continues to lead the opposition to the conduct of the NIOSH/NCI studies and has engaged its own leading experts to examine the study and data. Patton Boggs attorney Henry Chajet serves as counsel to MARG and should be contacted for more information or assistance in protecting your company from unwarranted litigation. He can be reached at firstname.lastname@example.org or 202-457-6511.
5. MSHA ADOPTS OSHA’S FALL PROTECTION STANDARD BUT UNCERTAINTY REMAINS
MSHA has issued a Program Policy Letter (PPL) that sets a six-foot-height threshold for fall protection, but still gives the agency discretion to cite operators when miners work unprotected at lower heights. At six feet and higher, guardrail systems, safety net systems or personal fall arrest systems are required.
Uncertainty in how the new policy will be enforced arises from equivocal language in the PPL, which states, “In many cases, compliance with OSHA’s fall protection standard will satisfy the requirements of MSHA’s 30 C.F.R. 56/57.15005 standard. MSHA will evaluate all work area hazards to ensure appropriate fall protection provisions are in place to protect miners from fall hazards.”
The PPL, released in June, does not spell out what criteria MSHA would use to determine the need for fall protection below the threshold level. The agency said it was issued to clarify compliance in order to enhance consistency, but without more specific guidance, operators are left to wonder when the six-foot limit will apply and when it will not. In circumstances that could give rise to enforcement action, operators may wish to consult counsel. Contact Henry Chajet, Mark Savit (email@example.com, 303-894-6117), Brian Hendrix (firstname.lastname@example.org, 202-457-6543) or Peter Gould (email@example.com, 303-894-6176).
6. HARD HAT STANDARD IS SUBJECT OF OSHA FINAL RULE
OSHA has published a direct final rule to update its standards on hard hats in general industry, the construction sector, shipyards, longshoring and marine terminals. The rule replaces an obsolete version of ANSI’s Z89.1 standard for industrial head protection with the 2009 version. OSHA said the new rule would allow use of helmets complying with the three most recent editions of the ANSI consensus standard. The direct final rule becomes effective on Sept. 20 unless comment deemed by the agency to be significantly adverse is received by July 23. In that event, an identical proposed rule the agency has published in the same June 22 issue of the Federal Register will be used for rulemaking instead.
7. LUNG DISEASE FOUND IN SURFACE COAL MINERS
New research information from NIOSH is expected to give a boost to a comprehensive regulation MSHA issued in 2010 to limit miners’ exposure to respirable coal dust. NIOSH said it detected coal workers’ pneumoconiosis (CWP) among 2 percent of surface coal miners with more than a year’s experience on the surface during chest x-ray screening of surface miners in 16 states. The highest prevalence of CWP was in the Central Appalachian coalfields. Most of those with the illness had never worked underground and more than a quarter of those with CWP had the worst form of the disease, NIOSH said. In addition, nearly 40 percent of those with CWP also showed evidence suggestive of silicosis. The surveillance was conducted during 2010-2011.
Surface coal miners are included in a sweeping proposal MSHA issued in October 2010 which includes provisions for exposure monitoring, training, medical surveillance and recordkeeping. It also would cut the 2 milligrams per cubic meter permissible exposure limit in half. The coal industry has expressed strong opposition to the proposal, and no action is expected before the November election. In any case, the NIOSH findings are likely to increase pressure from labor and public health organization for a new rule going forward.
8. NIOSH, OSHA ISSUE ALERT ON FRACKING HAZARDS
A recent hazard alert from NIOSH and OSHA claims respirable crystalline silica is a potential health hazard from hydraulic fracking in the oil and gas industry. Exposure can occur during sand moving operations, loading, on-site vehicular traffic and anywhere dust is visible. Of 116 full shift air samples NIOSH collected at hydraulic fracturing sites in five states, 47 percent were over the OSHA permissible exposure limit (PEL). Of these, 9 percent were more than 10 times over the PEL. The highest exposures were to sand mover and blender operators and to workers downwind of these operations. Because respirable silica is known to cause silicosis, the two agencies recommended that alternatives to silica sand be considered after determining if the alternatives themselves are safe. In addition, engineering and administrative controls and respiratory protection should be used to minimize exposures. Exposure monitoring, medical surveillance and worker training were also recommended.
These measures are included in a comprehensive proposal to regulate crystalline silica that OSHA delivered to the Office of Management and Budget a year and a half ago. The agency can be expected to use the hydraulic fracking alert as another argument to advance the regulation.
In the alert, OSHA and NIOSH also identified other potential exposures. These can include diesel particulate and exhaust gases from equipment, high or low temperature extremes, high noise levels and sprains and strains from overexertion. In addition, OSHA and NIOSH found that long working hours may produce fatigue. Safety hazards include being struck by moving equipment, tools or falling objects; poor lighting; being caught in pinch points; falls; unexpected releases of energy; fires and explosions; and working in confined spaces.
9. MSHA IMPACT INSPECTIONS TARGET 17 COAL MINES
MSHA inspectors wrote 458 citations, orders and safeguards during impact inspections in April and May at 17 coal operations. Another four metal/non-metal mines were hit with 61 citations and orders. The totals include 259 alleged violations classified as significant and substantial (S&S). Since April 2010, MSHA has conducted 452 impact inspections, which have resulted in 8,106 citations, 811 orders and 32 safeguards. Any mine that receives a large number of alleged violations, especially those classified as S&S or elevated enforcement, should seek assistance from counsel to avoid listing as a potential pattern violator.
10. ROUNDUP OF OSHA AND MSHA WHISTLEBLOWER CASES
Three companies collectively have been ordered by OSHA to pay more than $1 million for allegedly retaliating against employees who made safety complaints or reported injuries, and MSHA is pursuing a Maine aggregate producer over a whistleblower complaint.
Norfolk Southern Railway Co. was ordered to pay three whistleblowers $802,169 in damages, including $525,000 in punitive damages and attorneys’ fees. The order came following concurrent investigations by OSHA offices in three states revealed “reasonable cause” to believe employees’ reporting of their workplace injuries ultimately led to their dismissal, OSHA said. North Star Behavioral Health System in Alaska was ordered to reinstate an employee immediately, pay him $60,000 in back wages and more than $200,000 more for emotional distress, punitive and compensatory damages and attorneys’ fees. North Star said it would appeal. A Tennessee-based trucking firm, Mark Alvis, Inc., was ordered to reinstate a driver who refused to haul a load of milk because doing so would allegedly have violated federal hours-of-service rules and because he had suffered an injury. The company was ordered to pay more than $180,000 in back pay and damages.
Meanwhile, MSHA has filed a complaint alleging that Ferraiolo Construction, Inc. fired a general laborer last year who had repeatedly voiced safety complaints at a company stone crushing operation. The agency requests that the employee be reinstated and the company pay a $20,000 fine.
IV. CHEMICAL SAFETY BOARD
11. CSB PROBES FATAL ARKANSAS BLAST
The United States Chemical Safety Board (CSB) is investigating an explosion and fire at an oil tank site in Arkansas that killed three workers. The May 21 accident occurred at Long Brothers Oil Company when workers were doing hot work on a tank; i.e., burning, cutting, welding or something of that nature. CSB has released a safety bulletin and safety video on the hazards of welding or cutting around piping and tanks that have not been monitored for the presence of flammable hydrocarbons.
12. BOARD TO HOLD PUBLIC HEARING ON BP OIL RIG DISASTER
CSB has scheduled a two-day public hearing later this month as part of its investigation into the April 2010 BP oil rig explosion and fire. The board will also use the opportunity to release its preliminary findings into the disaster that killed 11 workers.
In an announcement July 2, CSB said the July 23-24 hearing in Houston will feature presentations and discussions on measuring process safety performance in high hazard industries. The agenda includes presentations from expert panels, including government officials, industry executives, union representatives and nonprofit stakeholder groups from the U.S., Norway, UK and Australia. Participants will address the use of leading and lagging major accident indicators to improve safety performance. Besides expert panel presentations, CSB staff will review the Board’s evaluation of an ANSI/American Petroleum Institute standard (ANSI/API RP 754) created after the BP Texas City refinery fire and explosion that killed 15 workers and injured 180 others. Another CSB staff presentation will focus on the board’s preliminary findings regarding the use of safety indicators and major accident prevention from the oil rig incident.
13. COMMISSION SAYS MSHA HAS ACCESS TO MEDICAL RECORDS
MSHA won a big victory in May when the Federal Mine Safety and Health Review Commission, in a 4-1 decision, ruled that the agency, upon “reasonable request,” had the right of access to mine operators’ payroll records and medical information. The decision would appear to hand MSHA broad authority to demand access to any documents the agency believes may be needed to carry out its duties under the Mine Act.
In upholding an administrative law judge, the majority commissioners held that MSHA’s request for non-mandated records to verify compliance with Part 50 reporting requirements did not violate constitutional protections, invade privacy rights or conflict with federal or state laws.
The case began when MSHA demanded that two energy companies turn over documents, which the Mine Act does not require operators to create or maintain. MSHA had sought a year’s worth of payroll records, time sheets and a slew of medical information, including individual medical records, doctors’ slips, drug testing documents, emergency transportation records and medical claims forms relating to accidents, injuries or illnesses. MSHA said it needed the information to properly audit injuries and illnesses at eight mines operated by the companies that the agency had targeted under a Part 50 auditing initiative it launched in 2010. A miners’ group intervened in the litigation on behalf of the mining companies.
The commissioners held that Sec 103(h) of the Mine Act gives MSHA broad authority because the provision does not limit the agency’s access only to mandated records. Moreover, they argued that commission case law and the legislative history of the Mine Act support this position. They also noted that Part 50.41 “lacks any language restricting the Secretary’s access to any particular documents.” Preambles to both the proposed and final Part 50 rule mention MSHA’s right of access to medical and employment records and other company information to verify compliance, they said.
The two companies argued unsuccessfully that constitutional guarantees of privacy precluded disclosure of records not required by law. They also cited due process guarantees under the Fifth Amendment.
Michael F. Duffy, the lone commission dissenter, argued that constitutional exceptions allowing MSHA access apply only to records mandated by statute or to the regulations implementing them. He said MSHA either needed a warrant to obtain the data or “set forth requirements for the generation, maintenance, and release of such records through notice and comment rulemaking.”
Despite the ruling, a spokeswoman for one of the companies framed the case as involving an individual’s right to privacy and said the company still believed that MSHA exceeded its authority by requesting miners’ private medical information. The deadline to appeal the decision is mid-July. Mine operators requested by MSHA to turn over such records are advised to seek advice from counsel. Contact Henry, Mark, Brian or Peter at Patton Boggs.
14. LACK OF TOILET LEADS TO $322,000 JURY AWARD
Two aviation company employees, fired after complaining to regulators in Oregon that they did not have access to a toilet on the job, have received a $322,000 jury award. The verdict came after the men testified that their employer, Menzies Aviation, refused to provide them with a toilet. Using restrooms of neighboring businesses at Portland International Airport was not a solution, they said. The men were fired after taking their complaint to state OSHA. Menzies said the men’s dismissal was not retaliatory, rather came because they were told not to urinate in a bucket but continued to do so anyway. The award includes $180,000 in punitive damages. Under Oregon law, 60 percent of the punitive damages must go to the state’s crime victims’ compensation fund.
15. DOL GOES TO COURT TO COLLECT FINES
D&C Mining Corp. of Kentucky must pay $1.67 million in accumulated fines, a federal judge has ruled. The Department of Labor (DOL) sought the order on behalf of MSHA after the operator failed to meet a court deadline for responding to DOL’s lawsuit seeking to collect the money. D&C rolled up nearly 1,200 citations between January 2006 and February 2012 but had not yet paid $1.6 million of a $2.7 million assessment bill, according to the litigation. Besides paying the fines and interest, the government wants D&C to post a bond before conducting any future mining operations.
DOL has also asked a federal appeals court to enforce payment of $101,550 in OSHA fines incurred by two New Hampshire construction companies since 2000. The fines are against Summer and Winter Construction, LLC and another company, Sharon and Walter Construction, Inc., which was dissolved in 2003. DOL alleged that the two companies “have effectively thumbed their noses at their OSHA citations and refused to pay their fines.” Walter Jensen, the two companies’ owner, was also fined $18,000 in state court in February for unlawful asbestos removal.
16. FIVE FIRMS SETTLE WITH OSHA OVER SAFETY, WHISTLEBLOWER ISSUES
The Labor Department and DeMoulas Super Markets, Inc. have reached a settlement following litigation whereby the grocery chain will correct alleged fall and laceration hazards identified by OSHA and take steps to improve safety and health at all of its more than 60 Market Basket stores in Massachusetts and New Hampshire. Changes the company has agreed to include hiring a full-time safety and health director, providing annual safety training and developing written safety and health programs. The firm has also paid $400,000 in fines. A settlement was also reached with Bostik, Inc. of Massachusetts over alleged process safety management violations following an explosion that injured four workers. The company has paid a $600,000 fine. Three other firms have settled cases associated with whistleblower complaints: Pilgrim’s Pride of Texas, Heartland Transportation, Inc. of Tennessee and CMM Realty, Inc. in South Carolina.
In another whistleblower case, a judge has rejected a request by the Manatee School of Arts and Sciences in Florida to throw out a whistleblower lawsuit filed against it by OSHA. OSHA is defending an employee who had complained about alleged electrical hazards. School officials had unsuccessfully argued that, as a charter school, Manatee receives public funding, thus it is a government entity not subject to OSHA’s jurisdiction. The school’s principal has vowed to continue to resist the litigation.
17. MINE OPERATOR WINS WEIGH SCALE CASE
Weigh scales are not roads and therefore do not fall under MSHA’s berm standard, an administrative law judge concluded in an authoritative 26-page ruling in May. The decision calls into question MSHA’s controversial approach over the past several years to vigorously superimpose its berm standard to weigh scales at mine sites. It also challenges the validity of a 2010 agency Program Policy Letter (PPL) that provided enforcement guidance.
30 C.F.R. § 56.9300 requires the installation of berms or guardrails at mid-axle height “on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” Until ALJ Thomas McCarthy’s ruling, most ALJs had supported MSHA’s application of the standard to weigh scales.
The case involved a scale at a Knife River Corp. crushing operation in Oregon. At its highest point, the 90-foot-long scale was 41 inches above the ground and had 10-inch high rub rails. After going five years without a citation, an MSHA inspector cited the operator for an alleged violation of the berm standard, because the scale did not have rails that reached to mid-axle height of the largest traversing vehicle.
McCarthy said that the physical location of the scales off the main haulage roadway and the circumstances of their use by trucks argued against MSHA’s scales-as-roadway position. The scale is “a piece of equipment designated and used for a specific purpose,” he concluded after the company introduced expert testimony describing the scale as a measuring device.
McCarthy also said MSHA’s position is not legally defensible. Drawing on the dictionary definition of a road, he found that truck scales did not meet the definition. “Equipment, such as a truck scale, does not fall within the plain meaning because it is not integral to the structure or purpose of the road,” he wrote. The berm standard itself is unambiguous, and its text, regulatory history and general safety purposes support a finding that there was never an intention to include truck scales, he said. His opinion was supported by evidence from Knife River that an estimated 67,661 truckloads have passed over the scales without incident in the five years the scale had been in use at the mine.
In an effort to provide consistent enforcement guidance, MSHA issued a PPL two years ago which required a guard or rub rail at least six inches high when scales where elevated to 16 inches or less. At higher elevations, either guards at mid-axle height were required or scale height had to be decreased to less than 16 inches. The PPL has since expired, and MSHA has made no move to renew it.
18. SAFETY OFFICER SENTENCED FOR FALSIFYING RECORDS
A 31-year-old construction company safety officer received two years’ probation and was fined $500 for submitting false training documents to MSHA. Jason Jones, 31, of Boise, Idaho was sentenced in U.S. District Court after pleading guilty in March to a felony charge. A safety officer and trainer for Western Construction, Inc., Jones was accused of providing documents showing that six miners working at a sand and gravel mine had received annual refresher training when in fact none had.
19. MESOTHELIOMA CASE ROUNDUP
Juries across the country have awarded a total of nearly $73 million to six mesothelioma victims or their families. By far the largest award came from a Los Angeles jury that awarded $48 million to the family of a mesothelioma patient. In Sacramento, a jury awarded nearly $2.1 million to a 66-year-old former plumber and installer of heating, ventilating and air-conditioning equipment who fixed vehicle brakes as a sideline. The award went against a company that made brake linings. A Louisiana jury awarded a former shipyard worker $12 million. The widow of a former chemical plant employee received $8.4 million from a Texas jury, and in Connecticut, the family of a deceased tile setter received $2.4 million from a trade association which had developed asbestos-containing mortar used to set tile.