November 2001

Regulations

Rock Law—Illegal Rulemaking Stopped, but Aggregate Industry Still at Risk

Part 46 One Year Later: Pass or Fail?

Industry Leaders Speak Out During HazCom Hearings

FMSHRC

Rock Law

Illegal Rulemaking Stopped, but Aggregate Industry Still at Risk

By Henry Chajet, ESQ.

HEALTH STANDARDS

On Sept. 13, the American Conference of Governmental Industrial Hygienists (ACGIH), a group that considers itself a private, independent scientific organization, publicly apologized to the trona (soda ash) industry and withdrew a proposed dust exposure standard that threatened the viability of the industry (http://www.acgih.org/members/CaseStudies.htm). The case, brought by Patton Boggs for the industry, was the first successful lawsuit against ACGIH resulting in the elimination of an unwarranted health standard. Trona is a mineral used to make soda ash, baking soda, animal feed, glass, paper, detergents, cleaners, water treatment supplies and other products.
ACGIH is the same group that in the last five years has adopted a new silica standard with potentially devastating effects on the aggregate industry and proposed new diesel exhaust and ergonomics standards, regardless of evidence to the contrary. Industry opposed ACGIH standards (called Chemical Substance Threshold Limit Values or TLVs) also have been aimed recently at a variety of other industries such as automotive (oil mist), baking and milling (grain) and furniture (formaldehyde). ACGIH was founded by federal and state employees to coordinate and support the actions of the industrial hygiene profession and related governmental programs.
TLVs are used by governments (federal, state and foreign) to establish supposed safe exposure levels and trigger hazard warning and training requirements. A new list of TLVs is published every year after development by ACGIH committees and approval by their board of directors. The “latest edition” of ACGIH TLVs are automatically incorporated by reference—in both the OSHA Hazard Communication Standard and the new MSHA HazCom Rule—as defining hazardous materials for communication and training purposes. TLVs must be reported on Material Safety Data Sheets (MSDS) and distributed to customers’ users and employees. TLVs are used by plaintiffs lawyers in toxic tort lawsuits, permit hearings by opponents of new or expanded development and proponents of new health and environmental regulations to support their position regarding supposed “safe” or “unsafe” levels of exposure.
In recent Congressional testimony, I called ACGIH actions “secret rulemaking” that improperly delegated government authority to a private, non-consensus seeking group, that acts behind doors to achieve the agendas of its self-selected committee members, without any public accountability. I alerted Congress to the use of the TLVs by the regulatory agencies and the fact that agency personnel serve on the ACGIH committees and board that adopt the TLVs, later used by their agencies. Congressman Charlie Norwood (R-Ga.), chairman of the House subcommittee before whom I testified, was intensely interested and promised further hearing to address the need for regulatory reform.
On Dec. 1, 2000, we sued ACGIH, the U.S. Department of Labor (DOL) and Health and Human Services (HHS) when ACGIH threatened to adopt an unwarranted TLV, developed with the participation of various DOL and HHS officials and some of their grant recipients at a number of universities. Using a novel legal theory, we alleged violations of the Federal Advisory Committee Act as well as making traditional product defamation claims. The lawsuit was brought in Georgia, by trona users and producers, to take advantage of favorable law in the 11th Circuit permitting injunctions for Advisory Committee Act violations and product defamation. A consent decree was obtained in December to prohibit the planned adoption of the trona TLV at an ACGIH Board meeting that month.
The Federal Advisory Committee Act was passed to prevent unjustified credibility being given to federal agencies that claim reliance on expert committee advice and to avoid bias and improper government actions. The Advisory Committee Act governs agency reliance on and use of committees by requiring a charter filed with Congress (to permit oversight); open meetings that are publicly announced and balanced membership: exactly the opposite of ACGIH procedures.
Nine months after the industry was threatened with unjustified and intolerable ACGIH action, our lawsuit resulted in a negotiated settlement with ACGIH. We continue to work towards a settlement with the federal government that will help avoid future conflicts of interest by agency employees.

DIESEL STANDARD LITIGATION

On behalf of industry challengers to burdensome new diesel exposure standards for underground mining, promulgated at the end of the Clinton Administration, Patton Boggs and its co-counsel negotiated an interim, partial settlement, reserving the right to litigate later, if necessary. The agreement resulted in a rulemaking to amend a few provisions of the rule (http://www.msha.gov/REGS/FEDREG/PROPOSED/2001 PROP/01-16838.HTM); and a diesel sampling study at 30 mines, with a commitment to evaluate the feasibility of the remainder of the rules by January 2002. Key provisions of the standard set an interim (400 µg) limit on diesel particulate matter (DPM), as reflected by concentrations of total carbon in the atmosphere, that mine operators must meet after July 19, 2002, and a final 160 µg limit on Jan. 19, 2006. The standard is the first occupational exposure standard for diesel in the United States and is expected to set a precedent for other industries.
A negotiated, MSHA/industry protocol addresses how the joint sampling effort will be conducted and whether interference from oil mist, smoking and the carbon content of minerals preclude accurate results. The sampling began in late August and will continue until 30 mines are sampled. Twenty personal and area air samples for total carbon will be collected over two days at each participating facility. Sampling will include conditions that reflect both actual diesel equipment exhaust and those that might produce false readings, such as the use of equipment with oil aerosols, environmental tobacco smoke and mineral ores with carbon content. Raw analytical results and data summaries from the laboratory will be reported directly, both electronically and in hard copy, to the MSHA research team and the litigation technical observers and participants, with coordination by the MARG Diesel Coalition, represented by Patton Boggs. Data collected will be reviewed, validated and entered into a database for analysis by Patton Boggs’ consultants, Dr. Thomas Hall (University of Oklahoma) and H. John Head (Harding Lawson Associates). We expect that the results of the study will be presented in rulemaking hearings, early next year, that will hopefully bring favorable changes to the diesel rules.

MSHA HAZCOM

In response to lawsuits (by Patton Boggs and others), as well as appeals to the Administration to stay the rule, MSHA is delaying the effective date from Oct. 3, 2001, until June 30, 2002, re-opening the record and holding additional public hearings on its new hazard communication rule (HazCom) for mining. The comparable OSHA rule for general industry is the most often cited violation during OSHA inspections.
Public Hearings are being held this month to address potential changes to the rules, including:

(1) Under “Hazard Determination,” MSHA “may revise the reference to ACGIH, NTP and IARC” [latest edition] and may “refer to the 2001 editions; because ‘commenters [e.g. Patton Boggs on behalf of the trona producers]… objected to the use of these lists…[since they] offer no opportunity for public comment; …impose unknown future requirements by citing the ‘latest edition;’ and … violate regulations governing incorporation-by-reference;’”(see ACGIH case, above).

(2) “Increase compliance flexibility and recognize that MSDSs may be stored in a computer,” by amending the requirement “for each hazardous chemical before using it” to “for each hazardous chemical which they use;”

(3) “Accepting a listing of the OSHA PEL on an MSDS as an alternative to a listing of the MSHA PEL.”

(4) “Changing the language from requiring the operator to train the miner whenever introducing “…a new hazardous chemical into the miner’s work area…” to requiring training when the operator “…introduces a new chemical hazard into the miner’s work area” to clarify MSHA’s intent that when a new chemical is introduced additional training is required only if the hazard changes.

(5) “Revising the definition of health hazard” to delete “psychological or behavioral problems.”

The position of industry groups vary from urging compete rejection of the rule to accepting it, but insisting on additional amendments such as the complete deletion of the incorporations by reference.

Henry Chajet (HChajet@pattonboggs.com) is a partner in the Washington, D.C. office of Patton Boggs LLP. The law firm’s website is located at www.pattonboggs.com

Part 46 One Year Later: Pass or Fail?

Pittsburgh—One year after Part 46 went into effect, Karen Johnston and Julia Shreve of the law firm of Jackson & Kelly PLLC provided producers with an overview of how the regulation is impacting the aggregate industry.
The attorneys told attendees of the National Stone, Sand & Gravel Association’s Environment, Safety & Health Forum, held Sept. 23-25 in Pittsburgh, that anecdotal evidence suggests that enforcement is lacking in consistency.
From Oct. 1, 2000, through July 31, 2001, MSHA conducted a total of 9,218 Compliance Assistance Visits where regulators would provide “appropriate mines” with a visit to determine compliance with Part 46 and issue CAV notices in lieu of issuing citations. During the same period, 6,531 notices were issued. The overwhelming majority of these notices, 3,973, were issued for noncompliance with §46.3, which requires the development and implementation of a training plan. Training records, the attorneys noted, were a secondary concern with 808 notices being issued. Responsibility for independent contractor training was the subject of an additional 81 notices, issued under §46.12.

Part 46 Primer

To aid producers, Johnston and Shreve offered the following tips:

• Make sure that your Part 46 training plan complies with the requirements of the standards by reading the language of the standards and reviewing the preamble carefully.
• Although Part 46 does not require the miner to certify that he has received training, have the miner sign off on the training certificate or another document, acknowledging the training received. This provides the operator with verification of training if, in the future, the miner denies receiving training. This is particularly pertinent for task training.
• Identify in the plan those “competent persons” who will be conducting task training and the tasks for which they are competent to train.
• A new employee who has previous work experience in a task and demonstrates the necessary skills to perform the task safely does not need new task training under §46.7. If you believe a new employee has sufficient experience, make sure the experience is documented in their personnel file.
• Where a production operator has an independent contractor on site, the production operator should provide the site-specific training and make a good faith effort to ensure that the independent contractor is in compliance with Part 46. The operator should contractually require written certification from the independent contractor that it is in compliance and/or obtain copies of training records for review.
• Maintain a training roster for each session of training that is part of new miner training or annual refresher training to verify the subjects covered and the amount of time spent.
• Once a new miner is given the initial four or more hours of training before starting work, track the subsequent training carefully to ensure that the miner receives the necessary 24 hours of training no later than 90 days after beginning work at the mine.

Fast Facts

From Oct. 1, 2000, to July 31, 2001, the following CAV types of notices were issued:

• 7 3,973 for developing and
• implementing a training plan.
• 7 808 for training records.
• 7 81 for independent
• contractor training.

Industry Leaders Speak Out During HazCom Hearings

Pittsburgh—Following the National Stone, Sand & Gravel Association’s Environment, Safety & Health Forum in Pittsburgh, several members of the industry testified before a panel of U.S. Mine Safety and Health Administration officials about the interim Final HazCom Rule.
Joy Wilson, president and chief executive officer of NSSGA, testified that the rule is duplicative of numerous existing rules already in effect for the aggregate industry and will cause redundant paperwork, taking time away from priority safety tasks.
“Part 46, the noise rule, diesel particulate, HazCom and a variety of additional regulations in the pipeline are hitting this industry within 12 months of each other and that is impacting the ability of our small businesses to stay in business, as it is also impacting the ability of our members to do the good job they know they can do and want to do, to be in full compliance with all applicable local, state and federal laws and regulations,” said Wilson.
Wilson indicated the willingness of NSSGA and its members to work with MSHA and labor if there are problems with the existing regulations that need attention. “As I have indicated, MSHA and the industry agree on the goal, but part company on the means to accomplish the worthwhile end of informing miners about chemical hazards on the job and how to protect themselves,” she said.
Vic Goulet, safety director for Brox Industries, Inc., testified about the impact the HazCom rule would have on smaller producers, noting that Brox already uses OSHA’s HCS in its operation as part of its Part 46 training and pointed to a 1996 analysis of that program done by the National Advisory Commission on Occupational Safety and Health. That report recognized the paperwork burden of the regulation, noted that MSDSs are flawed and that training based on the MSDSs was ineffective.
Goulet also questioned the agency’s ability to assist small producers, pointing out that, despite a good relationship with his local MSHA office, he has yet to receive a Part 46 Compliance Assistance Visit. “Couldn’t we look at the existing Part 46 training rule as adequate to ensure that chemical hazards are as real and as important as other hazards that exist? And, if not, why? Is that rule deficient?” he asked. “I fail to recognize how my intentions to work to protect our miners, in compliance with our corporate management’s commitment, our employee’s best interest and a desire to protect their health and safety, will be increased or improved with duplicating that which already exists. To me, and to many of my fellow safety professionals, this has the unfortunate flavor of rulemaking for the sake of rulemaking.”

FMSHRC

Federal Mine Safety and Health Review Commission

By Ellen Smith and Melanie Aclander

COMMISSION FOCUSES ON DISCRIMINATION CASES

FMSHRC has recently sent two discrimination cases back to Commission ALJs—one involving the use of profanity and the second involving safety concerns.
The commission once again vacated ALJ Avram Weisberger’s dismissal of a discrimination complaint filed by MSHA on behalf of a discharged haulage truck driver who claimed he was fired for refusing to drive faster on a slippery road.
In a decision on remand, the ALJ found that Reading Anthracite Co. established its affirmative defense and showed that it discharged Leonard Bernardyn solely for using profanity and making an allegedly threatening statement about the mine superintendent over his CB radio (7 MSHN 355).
However, the commission found that Weisberger made several errors in analyzing whether Bernardyn was treated differently from other miners who were merely warned for using profanity and sent the case back for further proceedings.
Specifically, the commission found that Reading violated its own disciplinary policy in terminating Bernardyn, and that he never threatened the mine superintendent, as the ALJ had found.
The commission also had problems with Weisberger’s finding that Reading did not provoke Bernardyn’s outburst. FMSHRC stated that “the direct order by Bernardyn’s supervisor to drive faster under poor road and weather conditions gave Bernardyn the unfortunate choice of either complying with the order and risking the consequences to life and limb of driving faster, or disobeying the order and risking discipline for insubordination.”
FMSHRC also stressed that the driver’s cursing occurred while he was making a safety complaint to his safety committeeman—“a significant factor that the judge should not have ignored.”
The panel was very critical of the ALJ’s decision, stating that he failed to follow its remand instructions and rejecting several of his findings. Referring to the ALJ’s ruling, the commission used phrases such as “troubling,” “puzzling,” and at one point said, “We are at a loss to understand the reasoning in support of” the judge’s finding that there was no management hostility toward Bernardyn’s protected decision to drive cautiously.
Commissioner Mary Lu Jordan dissented from the majority’s decision to send the case back to Weisberger. She stated, “One wonders why, given these findings, my colleagues find it necessary once again to remand this case to the judge instead of reversing his decision.”

Case Arose in 1998

Before his discharge in November 1998, Bernardyn had worked for Reading for 19 years and had driven a haulage truck at Reading’s Pit 33, a coal mine in Wadesville, Pa., for about five years. On the day of his discharge, Bernardyn was driving his 190-ton Titan haulage truck slower than normal because the weather was foggy and misty, and the road was slippery.
The mine’s general manager ordered the superintendent to stop Bernardyn’s truck to find out why he was driving so slowly, and the superintendent ordered Bernardyn to driver faster. About 20 minutes later, the general manager directed the superintendent to tell Bernardyn to park his truck.
After his second conversation with the superintendent, Bernardyn used his CB radio to call his union safety committeeman. During his complaint, he repeatedly cursed and, referring to the superintendent, said, “I’ll get the little !@#$@.” The general manager overhead the conversation and fired Bernardyn after he dumped the load in his truck. Some 30 minutes later, a foreman’s truck slid down the icy road, and the road was shut down.
The ALJ found that MSHA established a “prima facie” case of discrimination based on Bernardyn’s protected insistence on driving safely and his immediate discharge. However, in both of his decisions, Weisberger found that Reading discharged the driver for using profanity and making a threat.

No Prior Use of Profanity

The ALJ found that Bernardyn was not the victim of “disparate treatment,” when compared with other workers who were merely warned for cursing. But the commission held that Weisberger failed to apply the correct factors and found that Bernardyn had no history of cursing.
FMSHRC agreed with the ALJ that Reading’s more lenient 1987 disciplinary policy was in effect at the time of the driver’s discharge, but stressed that this policy “did not permit summary termination for profanity or using threatening language.” The panel said, “The conclusion is inescapable that Reading violated its policy in terminating Bernardyn.”
Weisberger said Bernardyn’s cursing was more “egregious” than that of the other workers, noting that he broadcast it over the CB radio, he cursed for 8 to 10 minutes, and he threatened a supervisor. But the panel found that other workers directed profanity at supervisors in the presence of others and discounted the duration of Bernardyn’s outburst, pointing out that the general manager who overheard the conversation could have intervened and stopped it at any time.

No Threat to Supervisor

The commission also found that Bernardyn’s “vague” statement “lacked the evidence of a threat of bodily harm.” Following the lead of National Labor Relations Board cases, FMSHRC held that “a single, general statement that mentions no person by name, unaccompanied by coercive conduct or warning of specific harm, made in the course of a safety complaint to a safety representative, and not directed to any possible subject of the statement, does not constitute a threat.”
The panel also pointed out that “an employee’s expression of anger” is not the same as a “threat.”

ALJ: Outburst Not Provoked

The commission noted that employers may not provoke an employee outburst and then rely on the use of profanity as grounds for discharge. In ruling in favor of Reading, the ALJ found that Bernardyn’s outburst was not provoked by any of Reading’s management officials. However, the commission stated that “the record as a whole casts considerable doubt on the judge’s conclusion.”
FMSHRC noted that Bernardyn was ordered to drive faster “under highly unsafe driving conditions,” accused of holding things up and then removed from the haulage run. The commission also emphasized that the roadway was pitched at a grade of more than 10 percent in some places, conditions were foggy and misty, the roadway was slippery, and conditions were deteriorating.
The panel added, “The judge does not cite any authority for his novel proposition that an order to work unsafely is insufficient to constitute provocation.”
Commissioner Robert H. Beatty Jr. concurred in the opinion by Chairman Theodore F. Verheggen and Commissioner James C. Riley. But Beatty found that Bernardyn’s discharge was “per se discriminatory” because it violated Reading’s disciplinary policy and there was no need to reach the “disparate treatment” issue.
ALJ’s dismissal of MSHA complaint vacated by FMSHRC
A unanimous commission vacated an ALJ’s dismissal of a discrimination complaint filed by MSHA on behalf of a roof bolter who claimed U.S. Steel Mining Co. discharged him for voicing safety concerns.
In his November 2000 decision, ALJ Avram Weisberger found that MSHA established a “prima facie” case of discrimination because the roof bolter, Terry McGill, expressed concern about cutting into an unbolted area and was fired less than two hours later. However, Weisberger found that U.S. Steel established an “affirmative defense” and showed that it would have discharged McGill in any event based on his threat to file a union grievance over classified work—an activity not protected by the Mine Act.
Vacating the ALJ, the commission found that this was not the affirmative defense that U.S. Steel sought to establish. Both at trial and on appeal, the company claimed it discharged McGill based on his alleged insubordination and use of profanity during a confrontation with his section foreman.
FMSHRC noted that it was faced with a situation in which the company sought to show one reason for McGill’s discharge—alleged insubordination and use of profanity—but the judge found another reason for his termination—his threat to file a union grievance.
The commission held that the ALJ erred, stating that consideration of an affirmative defense “is not an open-ended search for the ‘one true reason’ for the adverse action,” but is limited “to an examination of the reasons given by the operator for the adverse action.”
The panel also said the ALJ’s reliance on a defense which the company did not raise presents “due process problems” because MSHA and the miner “must have adequate notice of the affirmative defense in order to effectively rebut it at trial.”
FMSHRC sent the case back to Weisberger, with instructions to resolve McGill’s and the section foreman’s “widely disparate accounts” of their dispute and to decide whether U.S. Steel showed it would have fired the miner solely for his conduct during the confrontation.

Miner Concerned About Unbolted Area

McGill worked for U.S. Steel for about 27 years. At the time of his discharge in July 1999, he was working as a roof bolter at the company’s Oak Grove Mine, an underground mine in Alabama. The ALJ credited his testimony that he complained to his section foreman, Carl Harless, that one side of an entry was not completely bolted and another roof bolter was scheduled to cut into the unbolted area (7 MSHN 547).
Weisberger also credited McGill’s testimony that he communicated these safety concerns to an MSHA inspector and that Harless saw him talking to the inspector.
The ALJ found that McGill’s discharge was motivated in part by his safety activities because he was fired less than two hours later. The ALJ also found that Harless was hostile toward McGill’s safety complaints because he told McGill that “it was his !@#$@ section and he would run it like he wanted to.”
Weisberger went on to find that Harless discharged McGill because he threatened to file a union grievance when Harless offered to help him carry ventilation curtains, which was classified work. The ALJ noted that the foreman had previously made negative statements about having union members on his section.

‘Prima Facie’ Case Established

The commission agreed with the ALJ that McGill established a prima facie case of discrimination and reminded the ALJ that he was bound by the factual findings and credibility resolutions that he made in his decision.
On remand, Weisberger must decide whether to credit Harless’s claim that McGill was insubordinate and used profanity during their argument, or McGill’s version that he was not insubordinate and that it was Harless who used profanity in response to his threat to file a grievance.
Even if the ALJ credits the foreman’s version, he must still decide whether McGill’s conduct was provoked by the operator’s response to his safety complaints. If so, the company’s defense could “fail,” the commission held.
The panel also instructed the ALJ to consider an arbitrator’s award in McGill’s favor. The arbitrator ordered U.S. Steel to reinstate McGill with full pay, and he retired in January 2000. MSHA is seeking a civil penalty of $5,000 against U.S. Steel and reimbursement for McGill’s case-related mileage expenses.

Ellen Smith is the owner of Legal Publication Services, Pittsford, N.Y., which publishes Mine Safety and Health News. Melanie Aclander is legal editor for Mine Safety and Health News.