April 2002
Regulations
Guarding Against Bogus Discrimination Claims
By Adele L. Abrams, Esq., CMSP
On Feb. 27, 2002, the Mine Safety and Health Administration (MSHA) finalized two sections of its metal/nonmetal diesel particulate matter (DPM) rule, which was reopened last year for clarification and amendment. The new rule affects the sections of the standard that deal with tagging of equipment for prompt examination (30 C.F.R. 57.5066) and the introduction of diesel-powered equipment into underground mines and transfer of such equipment between mines (30 C.F.R. 57.5067).
These sections of the rule were reopened on July 5, 2001, for comment and amendment after petitions were filed by Anglogold and by the Georgia Mining Association. A public hearing was held on Aug. 16, 2001, at which only the United Steelworkers of America presented testimony. The rulemaking record closed on Aug. 20, 2001.
In the latest final rule, MSHA revises 57.5066(b)(1) to clarify what “evidence” will trigger the requirement that a miner tag diesel equipment for examination by a qualified mechanic. The new rule clarifies that “evidence” means “visible smoke or odor that is unusual for that piece of equipment under normal operating procedures, or obvious or visible defects in the exhaust emissions control system or in the engine affecting emissions.”
MSHA disagreed with commenters who urged the agency to consolidate the tagging requirements of the DPM rule with those of the mobile equipment examination/tagging standard, 57.14100(c). MSHA did not believe that the two types of tags could be confused, and clarified that these standards have differing requirements. Equipment tagged out under 57.14100(c) must be removed from service and cannot be used again until it is repaired and found safe to operate, whereas a “tagged” piece of equipment under the DPM rule need not be removed from service. Thus, MSHA explained, the rule addresses mine operator concerns that disgruntled miners might tag diesel equipment simply to delay operations. However, MSHA remained committed to giving miners, rather than mechanics, the authority to tag equipment under 57.5066.
The DPM standard tag indicates that a mechanic must examine the equipment “promptly.” The new rule also revises 57.5066(b)(2) to explain that “promptly” means “before the end of the next shift during which a qualified mechanic is scheduled to work.” In the interim, the mine operator can continue using the equipment, but cannot remove the tag. Moreover, no change was made to the requirement that the mine operator keep a log of all tagged equipment for at least one year. Section 57.5066(b)(3) requires the log to include the date the equipment is tagged, the name of the person examining the equipment, and any action taken as a result of the examination.
With respect to “introduction” of diesel-powered equipment into underground mines, MSHA has revised 57.5067(b)(3) to clarify that “introduced” does not include the transfer of engines or equipment from the inventory of one underground mine to another underground mine operated by the same mine operator. Under the DPM rule, any newly introduced equipment that is not otherwise exempt must satisfy the approval requirements under 30 C.F.R. Part 7 or Part 36, or exceed the applicable DPM emission requirements of the Environmental Protection Agency. The original standard did not cover diesel engines used in ambulances and firefighting equipment, and that exemption remains unaltered.
In the new rule, MSHA rejected suggestions that it should also exempt equipment transferred between mines owned by different divisions, affiliated companies or corporate entities of the mine operator. Industry comments noted that the rule, as promulgated, discriminates against some mines because of their corporate structure. MSHA found this was contrary to the intent of the rulemaking, which is to expedite the introduction of cleaner diesel engines into these mines.
Therefore, MSHA has limited the exemption to equipment transferred between one underground mine to another underground mine operated by the same mine operator, although the individual mines can have different mine identification numbers, provided that the equipment was introduced into at least one of the mines prior to July 5, 2001. MSHA plans to conduct a physical inventory of diesel engines in every underground metal/nonmetal mine, and any engines entered on the inventory that meet the requirements listed above will be exempt from the approval requirements of 57.5067.
The original DPM rule was published on Jan. 19, 2001, but several provisions are currently stayed because of pending litigation in the U.S. Court of Appeals, District of Columbia Circuit. Most parts of the rule took effect on July 5, 2001, but the interim and final permissible exposure limits are still under review as MSHA proceeds with additional sampling and analysis of DPM at metal/nonmetal mines. The agency hopes to determine the feasibility of the limits set in the final rule and the accuracy of the sampling/analytical methodology.
In the latest iteration, MSHA chose not to revise the standard’s economic impact analysis, maintaining that no costs are associated with the new final rule. The agency states in the Feb. 27, 2002, notice that a minimum of 8.5 lung cancer deaths will be avoided per year as a result of the DPM rule. It adds that there will also be reductions in the risk of death from cardiovascular, cardiopulmonary and respiratory disease, as well as mitigation of sensory irritation and respiratory symptoms.
| FAST FACTS
MSHA’s latest diesel rulemaking deals with the sections of the rule addressing tagging of equipment and introduction of diesel-powered equipment in underground mines. |
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call (301) 595-3520.
Federal Mine Safety and Health Review Commission
By Adele L. Abrams
A “Kinder, Gentler” MSHA?
A notable trend is developing in the terms of settlements between the Mine Safety and Health Administration (MSHA) and mine operators/contractors under the Lauriski Administration. While MSHA previously was reluctant to significantly reduce penalties in fatality cases, or in those involving “unwarrantable failure” citations and “imminent danger” orders, settlements released in the past few months have shown an increased willingness to cut penalties by 50 percent or more.
In a settlement involving a fatality at a lime plant, MSHA reduced the proposed penalty from $10,000 to $5,000. Global Stone Chemstone Corp. (ALJ 2/4/02). The accident occurred when a laborer was crushed by a counterweight while sitting on top of a high enclosure while trying to remove material from within the cage. The worker had nine years experience in the mining industry, but only 13 weeks at that operation. Several citations were issued against the company by both MSHA and the state of Virginia. MSHA characterized its citations as low negligence.
A sand and gravel operator recently saw its proposed penalties reduced from $100,000 to $10,000 in an MSHA settlement following a haulage fatality at its Texas mine. Lucherk’s Gravel Co. (ALJ, 1/4/02) convinced MSHA to reduce the fine by demonstrating financial hardship through provision of tax documents showing net profits of just $11,000. The accident occurred when a miner was being lifted in the bucket of a front-end loader to grease a power screen. When the bucket tilted, the worker was crushed between the bucket and the screen’s frame. MSHA issued two unwarrantable failure citations/orders under §§56.14211(b) and 56.14100(b), because the equipment’s accelerator pedal stuck when the throttle was applied, creating a defect affecting safety. In addition, it is a violation to use a loader bucket as a manlift.
MSHA also settled a Louisiana contractor fatality case at Excalibar Minerals (ALJ, 1/31/02) for $20,498, a reduction from the $31,398 proposed assessment covering 18 citations. The fatality occurred after a contractor employed by M. Matt Durand, Inc. ran over his co-worker while operating haulage equipment to unload barges at an open pit barite operation. The mine operator received a Part 48 citation and paid the full $2,500 penalty. MSHA claimed that the hazard training provided to the haulage contractors was inappropriate because their duties required comprehensive new miner training, but the agency reduced its negligence finding from “high” to “moderate” and withdrew its Section 110(c) charge and $900 penalty against the plant manager. Most significantly, MSHA reduced the penalty on a citation issued pursuant to §56.14200 from $20,000 to $10,000. In that citation, MSHA maintained that the horn on the truck, which was owned by the contractor, was not functional. Similar citations were issued directly to the contractor.
The trend is extending to non-fatal cases as well. ALJ Melick approved a settlement in Coalburg Enterprises, Inc. (ALJ 1/16/02), where a $4,500 proposed penalty for a Section 104(d)(1) order involving worksite examinations was reduced to $1,000. MSHA apparently agreed that this was more appropriately categorized as a “recordkeeping” violation, because the examination was performed, but had not been properly logged in the record book.
In another recent case, ALJ Manning approved a pro se settlement between MSHA and Asarco Inc. (ALJ, 1/17/02) at the Mission Mill mine in Arizona, in which penalties were reduced from $6,000 to $2,500. The inspector had issued an imminent danger order for an alleged violation of §56.15005. As part of the holistic settlement, the company agreed to show its personnel an MSHA video on fall protection. MSHA opted not to pursue Section 110(C) charges against company management personnel.
ALJ Cetti approved a settlement reducing a proposed ground control citation penalty issued under §57.3200 from $4,000 to $700. The citation, issued to Stillwater Mining Co. (ALJ 1/14/02) was originally classified as “reasonably likely to be fatal” in gravity, but MSHA agreed that this should be reduced to lost workdays or restricted duty, as the incident resulted in a miner’s broken leg.
Part 46 Enforcement Active
Although traditional wisdom has it that MSHA delayed enforcement of its Part 46 training regulations until October 2001, in fact the first citations were issued in October 2000, just days after the rule was finalized for the aggregate industry. A recent Freedom of Information Act request to MSHA yielded the following enforcement data for Part 46:
As of January 2002, there were a total of 603 assessed Part 46 violations. Of these, 65 percent were categorized as “non-significant and substantial” and received the single penalty assessment of $55. The remaining 35 percent—over 200 citations—were designated S&S and had penalties imposed ranging from a high of $7,150 to a low of $66. To date, MSHA has imposed nearly $138,000 in penalties under Part 46.
ALJ Finds “No Negligence” In 104(D) “Agent” Case
In a recent “unwarrantable failure” case, Mining Property Specialists Inc. (ALJ, 2/5/02), ALJ Hodgdon rejected MSHA’s high negligence findings and reduced the agency’s proposed assessment from $500 to $100, ruling that the company was not negligent at all. The company, an engineering firm, had a surveyor/transit person who went underground with a co-worker at a coal mine to install a survey station. The individuals allegedly worked under unsupported roof. MSHA had alleged that the surveyor was a management agent because he directed the work of the other individual, a “rodman.” Referencing the Commission’s 1997 ruling in Whayne Supply Co., the judge held that the work performed lacked the traditional “supervisory indicia” and that the surveyor performed routine duties at the time of his transgression and was not supervising the rodman’s activities. He noted that MSHA failed to offer evidence that the company’s training or enforcement of safety rules was faulty.
MSHA Wins Another Jurisdictional Battle
MSHA has prevailed in the latest of a series of jurisdiction battles, this time asserting its right to regulate a finishing shop at a slate operation. In U.S. Quarried Slate Products, Inc. (ALJ, 1/22/02), ALJ Hodgdon held that the MSHA/OSHA Interagency Memorandum of Agreement permits the Labor Department to assign all responsibility for health and safety at one physical establishment to a single agency, where this is more convenient from an administrative perspective.
The mine operator had argued that the interagency agreement gave OSHA the right to regulate the buildings where slate-sizing equipment and other finishing tools were utilized. ALJ Hodgdon found that those activities could be construed as “milling,” which comes under MSHA’s authority, because they were performed in geographical proximity to active mining and milling operations. The judge found it significant that MSHA has historically handled enforcement at slate operations in the northeastern United States and had inspected all facilities at this location since 1985.
One EAJA Claim Filed, Another Settled
Georges Colliers Inc. is seeking more than $72,000 in attorney fees and expenses from MSHA pursuant to the Equal Access to Justice Act, claiming that the agency’s demands against the company and its agents were “excessive, arbitrary and levied with the intent of punishing” the defendants. The company also alleges that MSHA’s intent was to drive a minority mine operator out of business.
The proposed MSHA penalties in the case at issue totaled $332,701, but they were reduced to $72,298 by Chief ALJ David Barbour in a Dec. 26, 2001, decision. Nearly 550 violations cited between 1998 and 2000 were involved in the case, and the judge reduced the penalties because of the impact on the company’s precarious financial status—one of the statutory criteria to be considered under the Mine Act. The mine operator claims in its EAJA petition that MSHA failed to consider this factor when proposing the penalties at issue and stressed that none of the citations or orders involved willful behavior or bad faith, nor were any accidents or injuries involved. The petition was filed Jan. 25, 2002.
In other EAJA news, on Jan. 11, 2002, MSHA settled Higman Sand & Gravel Inc.’s EAJA claim for an undisclosed “sum certain.” The mine operator had sought $7,535 in fees and expenses following dismissal of MSHA’s action under Section 103(a) of the Mine Act. MSHA had claimed that the operator refused to permit inspection of a crusher, but the judge found that there was no such machine as that identified in the citation.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call (301) 595-3520.
Hazard Warnings Trigger Lawsuits; Asphalt Industry at Risk?
By Henry Chajet and Anne Nichting
NIOSH has said that there is insufficient epidemiological evidence to conclude that there is an association between asphalt fumes from paving operations, but it does not preclude a risk of carcinogenicity.
A couple months ago, hundreds of notice letters were sent to companies alleging improper or non-existent health hazard warnings under California’s Proposition 65. Particularly hard hit was the asphalt industry. Ironically, the new filings may have been caused or accelerated by the state’s attempt to require scientific evidence to support private Proposition 65 Claims, and stem the tide of unfounded “bounty hunter” actions. Asphalt also seems to be gaining attention in the federal research and regulatory community, with the publication of a recent National Institute for Occupational Safety and Health (NIOSH) document alleging health hazards, and planned Environmental Protection Agency (EPA) regulatory activity. Can the plaintiffs’ lawyers be far behind?
To minimize liability risks, we suggest vulnerability assessments and coordinated actions that include the following:
• MSDS and label reviews (science and law);
• Public warning sign reviews;
• Insurance coverage reviews;
• Contract provision reviews (e.g. insurance, indemnification, EH&S duties);
• Product information, stewardship and training program reviews;
• Industry funded, independent scientific research;
• Monitoring and participation in government initiatives;
• Monitoring and response to professional or standard setting groups;
• Industry initiatives to address bias or bad science (e.g. OMB);
• Aggressive litigation eefense when sued; and
• Proactive suits against product defamation and violations of law (e.g. FACA ).
Asphalt: Targeted by Regulators & Researchers?
In a publication released December 2000, NIOSH emphasized its 1988 position that asphalt fumes be considered a potential occupational carcinogen. The new document was released at the end of the last administration, at about the same time as the resignation of the former head of NIOSH. The International Agency for Research on Cancer (IARC) is conducting epidemiology studies to assess the cancer risk among workers exposed to asphalt fumes in several western European countries. U.S. EPA has proposed national emission standards for existing and new asphalt processing and asphalt roofing manufacturing facilities. The EPA proposal would require all major sources to meet certain emission standards through implementation of maximum achievable control technology.
A variety of hazardous air pollutants are alleged to be emitted from asphalt processing and asphalt roofing manufacturing facilities, including formaldehyde, hexane, hydrogen chloride, phenol, polycyclic organic matter, phenol and toluene. The proposed standards would establish emission limits for particulate matter and total hydrocarbons as surrogates for these substances. EPA has stated that they expect to issue a final rule next May.
Yet, while the regulatory and Proposition 65 activity intensifies, the allegedly supporting science appears extraordinarily weak, when read carefully.
NIOSH’S Review of Asphalt Fumes
In 1977, NIOSH recommended an exposure limit (REL) for asphalt fumes of 5 mg/m3 of air, measured as total particulates during any 15-minute period. In 1988, NIOSH recommended that asphalt fumes be considered a potential occupational carcinogen.
Although NIOSH has not revised the REL, several of the comments and conclusions in NIOSH’s most recent hazard review indicates that NIOSH anticipates revising its REL for asphalt fumes and conducting additional studies. NIOSH continues to associate exposure to asphalt fumes with a myriad of acute and chronic health effects, including cancer. However, NIOSH now acknowledges that paving and roofing asphalts are qualitatively and quantitatively different and that the vapors and fumes from these asphalt products may also be different.
In addition, NIOSH has taken note of research that has documented the differences in chemical composition, physical characteristics and biological activity between asphalt fumes collected in the field and those generated in the laboratory.
Despite NIOSH’s acknowledgement and acceptance of these scientific findings, NIOSH continues to consider asphalt and asphalt fumes as potential occupational carcinogens because it believes that “[t]he relevance of these differences in ascribing adverse health effects in humans is unknown.”
NIOSH associates exposure to asphalt fumes from roofing, paving and other uses of asphalt with irritation of the eyes, nose and throat. Although NIOSH does not think the current data are sufficient for quantifying the acute health risks, it is examining the data with a view to revising the REL. NIOSH does not think the available data on chronic pulmonary effects (such as bronchitis) to be insufficient to support an association with asphalt fume exposures.
Of most concern is NIOSH’s continuing association of all asphalt fumes with carcinogens. NIOSH recognizes that “[d]ata are limited regarding the presence of carcinogens in asphalt fumes generated at U.S. worksites.” But because benzo(a)pyrene, B(a)P and other carcinogenic polycylic aromatic compounds have been detected in laboratory-generated asphalt fumes, NIOSH continues to be concerned about the presence of known carcinogens “under some conditions.” NIOSH reached different conclusions regarding the carcinogenicity of asphalt fumes during paving operations, roofing operations and from exposure to asphalt-based paints.
Paving Operations
NIOSH believes the available epidemiological and animal studies to be insufficient to conclude that there is an association between lung cancer and exposure to asphalt fumes during paving operations. The existing epidemiological studies among pavers have not all shown an elevated risk of lung cancer.
The epidemiology studies that have found an excess lung cancer risk had inherent problems that make them inadequate for use as the basis for any strong conclusions. Most significantly, the available human studies have failed to control for obvious confounding factors such as smoking and exposures to other potential lung carcinogens (e.g., diesel exhaust, silica and asbestos). Furthermore, only one study has identified benzo(a)pyrene—a known carcinogen—in field fumes, but that study could not determine whether paving asphalt fumes were the source of benzo(a)pyrene.
No animal studies have looked at the carcinogenic potential of paving asphalt fumes and only laboratory-generated fumes have been found to be genotoxic. NIOSH is likely to change its position regarding asphalt fumes from paving operations as more data become available because it does not think the current data precludes finding that there is a carcinogenic risk.
Roofing Operations
NIOSH does think the data from epidemiological and animal studies sufficient to conclude that roofing asphalt fumes are “a potential occupational carcinogen.” NIOSH reached this conclusion while at the same time recognizing that it is uncertain whether the increased risk of lung cancer in roofers might be attributed to other exposures, such as coal tar or asbestos. NIOSH reached its conclusion regarding roofing operations because the epidemiological studies have generally found an excess number of lung cancer cases. In addition, NIOSH gave weight to benzo(a)pyrene having been detected in field-generated roofing fumes and data from experimental laboratory studies that indicate asphalt fumes cause skin tumors in mice. NIOSH will likely attempt to quantify the risk of exposure to asphalt fumes from roofing operations as more data becomes available.
Asphalt-Based Paints
NIOSH has concluded that asphalt-based paints are potential occupational carcinogens. Again, NIOSH relied on limited data and evidence in reaching this conclusion. NIOSH recognizes that not all asphalt-based paint formulations are genotoxic or animal carcinogens but points to evidence that some are in reaching this conclusion. What is more, NIOSH acknowledges that no published data examine the carcinogenic potential of asphalt-based paints in humans.
Asphalt Exposure Monitoring Problems
A key problem in any asphalt-related research or proposed regulation is determining what is an appropriate surrogate for asphalt exposure. Several sample collection and analytical methods exist to evaluate workplace exposures to asphalt fumes. Two of the methods that are frequently employed measure total particulates or the benzene-soluble fraction of total particulates. NIOSH recognizes that “neither of these methods measures exposure to distinct chemical components or even a distinct class of chemicals, making it difficult to relate specific components to possible health effects.” Thus, it is difficult to characterize what has been actually measured in some studies because many organic compounds are soluble in benzene and any dust or aerosol may contribute to total particulate concentrations.
This problem complicates any researcher’s ability to compare historical occupational exposure data or to assess the exposures. In an attempt to characterize asphalt fumes more accurately, research studies have used methods that measure individual compounds such as sulfur-containing compounds that are known to be irritants. However, no single chemical substance is accepted as representative of asphalt fume exposure.
No Current OSHA Asphalt Standard
Currently, no specific OSHA standard exists for asphalt fumes. In its 1988 proposed rule to update the Permissible Exposure Levels (PELs), OSHA proposed a PEL of 5 mg/m3 as an eight-hour time-weighted average (TWA) for asphalt fume exposures in general industry. OSHA never made a final decision regarding the 1988 proposed rule. In 1992, OSHA published another proposed rule for asphalt fumes. The 1992 proposal would have adopted a PEL of 5 mg/m3 for the general industry, construction, maritime and agriculture industries based on respiratory effects of asphalt fumes. The 1992 OSHA docket is closed and OSHA has not scheduled further actions.
ACGIH Action on Asphalt Anticipated
The current American Conference of Governmental Industrial Hygienists (ACGIH) threshold limit value (TLV) for asphalt fume is 0.5 mg/m3 as benzene-soluble aerosol. The health effect of concern in establishing the TLV was irritation. The ACGIH currently lists asphalt fumes as not classifiable as a human carcinogen. Of concern is that asphalt fumes are on the ACGIH’s list of chemicals that are “under study” and has been for several years. Thus, ACGIH is exploring a revision to its TLV and designation of asphalt fumes.
As many in industry are aware, NIOSH, DOL and ACGIH, through the participation of selective government agency and academic personnel, frequently take similar (or coordinated) actions on substances, in what has been suspected to be an informal, secretive standard-setting approach. The results of recent, successful litigation against ACGIH and Congressional oversight holds the potential to open up and improve the ACGIH and DOL process. However, such improvement has yet to materialize. In the interim, there continues to be concern that ACGIH acts in secret meetings, without scientific peer review, to establish TLVs that are relied on or adopted by regulatory agencies, or used by plaintiffs’ lawyers as evidence of “unsafe” exposures. The question remains, will ACGIH (and DOL) institute reforms, or will new lawsuits or legislation be needed to address the problems?
The New OMB Science Requirements
Help on the way? New OMB science requirements for agency action, requiring peer reviewed, nonbiased science and other protections, would seem to mandate a new, more balanced scientific approach to asphalt (and other substances). However, it is unclear at this time whether EPA and NIOSH will apply the guidelines to their recent and pending asphalt actions. It seems, however, that the asphalt industry would be well served by working diligently to gain application of the OMR requirements to these critical research and regulatory matters.
Henry Chajet is a partner in the Washington, D.C. office of Patton Boggs LLP. Anne Nichting, MS,CIH is an associate attorney in the Denver office of Patton Boggs LLP. The firm’s website is located at www.pattonboggs.com.