Review Commission ruling increases the burden on mines to maintain automatic warning devices on mobile equipment.

In a case involving coal standards, the Federal Mine Safety and Health Review Commission (Review Commission) issued a holding overturning a decision by Administrative Law Judge (ALJ) Feldman that may also have implications for metal/non-metal operations. The Review Commission decision in Nally and Hamilton Enterprises, Inc. sets strict expectations for the maintenance of automatic warning devices, such as back-up alarms, on mobile equipment. Although the case involved a surface coal mine, the regulation at issue in the case is nearly identical to a Part 56 standard. Because the language is similar, it is important for metal/non-metal mines to familiarize themselves with the Review Commission’s holding in order to avoid unwelcome surprises during an MSHA inspection.

The case involved an alleged violation of 30 C.F.R. §77.410(c). This section addresses automatic warning devices on mobile equipment. The MSHA inspector determined that the operator violated the portion of the standard which requires that “warning devices shall be maintained in functional condition.” Metal/non-metal mines are subject to a similar standard at 30 C.F.R. § 56.14132(a), which requires that “manually operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.” The Review Commission and ALJ Feldman disagreed over what it means to “maintain” a back-up alarm in functional condition.

The facts of the case are fairly straightforward. Nally and Hamilton Enterprises, Inc. (Nally) operates a surface coal mine in Bell County, Ky. As part of its operation, Nally uses lube trucks. Lube trucks carry liquids such as fuel, antifreeze, and oil to service the operator’s mobile equipment.

An MSHA inspector discovered that the back-up alarm on one of the lube trucks was not functioning. The inspector designated the violation as “significant and substantial” (S&S). The back-up alarm was working when it was inspected during the pre-shift examination, but in a classic “Murphy’s Law” scenario, ceased working before it was examined by the MSHA inspector. The operator was unaware that the alarm had stopped working until the inspector issued the citation.

ALJ Feldman vacated the citation. He found that the Secretary had not established that Nally had failed to maintain the back-up alarm in functional condition. The ALJ felt it was important to consider how long the alarm had been disabled when making a determination as to whether the operator had failed to maintain the alarm. He stated that “[f]undamental fairness dictates that a mine operator must be given a reasonable period of time to address defects after they are noted by the pre-shift examiner.”

The Review Commission, however, soundly rejected ALJ Feldman’s analysis. It determined that, because the cited standard requires the duty to “maintain” the back-up alarms, the “warning devices shall be capable of performing on an uninterrupted basis at all times” (emphasis in original). The Review Commission stated that its holding is consistent with its earlier decision in Lopke Quarries, in which it determined that the duty to “maintain” imposes a continuing responsibility on operators to ensure that safety alarms do not fall into a state of disrepair. It reasoned that, because the alarm was not working on Nally’s lube truck at the time of the inspection, the alarm was not being “preserved from failure or decline.” In other words, not only must an operator fix an alarm that is broken, but an operator also has a duty to prevent an alarm from malfunctioning in the first place (“preserving it from decline”).

The Review Commission felt that by reasoning that the operator should be accorded a reasonable period of time to address defects, ALJ Feldman erroneously injected an additional requirement into the standard that an operator must possess knowledge of the defect in order for there to be a violation. Basically, the Review Commission stated that if the standard required an operator’s knowledge of the defect, or if it allowed for timely repair of that defect, it would have said so in plain language.

The Commission expressed concern that, if it were to restrict an operator’s liability to hazards identified in pre-shift examinations, this could lead to “perverse outcomes.” For instance, it suggested that an operator could overlook a hazard during a pre-shift examination in order to insulate itself from being cited for a violation during the shift. The Review Commission believes that its holding in the Nally case will encourage “more vigilance with instituting and enforcing effective maintenance procedures.”

While the Review Commission made it clear that an operator’s knowledge (or lack thereof) of a malfunctioning back-up alarm was not relevant to the question of whether a violation occurred, it did concede that a lack of knowledge could impact the penalty assessment. Therefore, an operator caught in a situation similar to Nally’s can probably make a reasonable argument that its negligence was low or non-existent.

Of course, back-up alarms provide constant feedback regarding their function while in use. As such, miners who operate mobile equipment outfitted with back-up alarms should be reminded to do an “ear check” while operating the equipment. Likewise, all miners should be encouraged to notify the equipment operators if they become aware that a back-up alarm is not engaging as it should. This kind of awareness may serve to limit an operator’s potential penalty exposure. AM

Michelle Witter is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0036 or mwitter@jacksonkelly.com.

Prohibition of ‘advance notice’ must be balanced with the operator’s right to accompany the inspector.

Mine Safety and Health Administration (MSHA) inspectors have been increasing emphasis on the prevention of ‘advance notice’ of their inspection activities since MSHA issued Program Information Bulletin No. P10-15 (PIB) last year. In this PIB, MSHA emphasizes that Section 103(a) of the Mine Act prohibits ‘any person’ from giving advance notice of inspections. The PIB also warns the mining community of the potential consequences for anyone who violates the advance notice prohibition, including civil and criminal actions, penalties, and sanctions against operators and individuals.

Since the PIB has been issued, more and more operators report occurrences where MSHA inspectors are arriving on site and telling security personnel not to announce their arrival to anyone on site. Some MSHA inspectors have ordered operator personnel to cease use of all phones for fear calls are being made to warn miners that MSHA inspectors are coming. Other operators have had MSHA inspectors go directly out to the active mining area without checking in at the main office or following the operation’s protocols for protections for visitors to a site where the conditions are dynamic and may change on short notice. This approach presents potential hazards to inspectors and miners.

While this aggressive approach may achieve MSHA’s goal of prohibiting ‘advance notice,’ it ignores the operator’s rights under the Mine Act to accompany the inspector during the inspection process. Some MSHA inspectors have been known to begin their inspection activity without any miner’s representative or operator’s representative, ignoring walk-around rights granted under Section 103(f) of the Mine Act. Section 103(f) provides that MSHA shall give an operator the opportunity to accompany an inspection “for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine.” 30 U.S.C. § 813(f).

So what is an operator to do? The best way to handle any MSHA inspection is to know your obligations and rights under the Mine Act. Section 103(a) grants the Secretary or her authorized representatives the ‘right of entry’ to conduct inspections authorized by the Act and prohibits giving advance notice of inspections for “determining whether an imminent danger exists and whether there is compliance with mandatory health or safety standards, or with any citation, order, or decision” issued pursuant to the Mine Act. 30 U.S.C. § 813(a). MSHA has taken the position that once it has commenced an inspection, this prohibited notice extends to all types of communication for all purposes — a question yet to be fully resolved given the myriad of circumstances that may be presented in any given inspection and balancing of rights that is required by the Mine Act.

MSHA’s PIB acknowledges that some advance notice of inspection activity is permitted in limited circumstances, and the PIB specifically identifies Section 103(g) hazard complaints alleging imminent dangers as one example. However, the issue of when advance notice of an inspector’s presence on mine property is permissible is not so simple. MSHA’s Program Policy Manual (the PPM) acknowledges that the Mine Act does not prohibit advance notice of investigative activities, but only permits such notice when needed and when approved by an inspector’s supervisor. For direct enforcement activities, MSHA acknowledges that it may be necessary to make preparations or arrangements with mine personnel, but that “any arrangements or notice relating to an enforcement activity that is not essential to carry out that activity is considered to be ‘advance notice’… ” PPM, Volume I, February 2003 (Release I-13). The PIB does not provide guidance on how MSHA intends to accommodate 103(f) rights, which provide operators’ and miners’ representatives the opportunity to accompany inspection parties.

Common sense would dictate that gathering an inspection party with representatives requires some form of notice to operator personnel, but whether MSHA or the courts would consider this as advance notice has never been directly resolved. Many of the judicial decisions interpreting Section 103(a) have involved situations where MSHA inspectors have directed mine operators not to call underground coal mines to announce their presence at the site. The facts of these cases vary, but all have found the operator to be ‘impeding an inspection’ under Section 103(a), because the operator disobeyed an inspector’s directive not to call. They have not directly addressed whether an operator may make some communications for purposes of exercising their Section 103(f) rights. In any event, there must be some middle ground for an MSHA inspector to proceed unannounced that does not involve ignoring the safety and security protocols at a mine or the rights of the mine operator.

Section 103(f) gives the operator an ‘opportunity to accompany’ an inspection and to attend pre- and post-inspection conferences, and MSHA should afford the operator that opportunity. It should be noted that MSHA has been given some latitude where it has denied the operator the right to accompany an inspector in light of the following language in Section 103(f): “[c]ompliance with this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.” 30 U.S.C. § 813(f). This language has been found to be a caveat to the otherwise mandatory language that MSHA ‘shall’ afford the operator an opportunity to accompany the inspector.

In the SCP Investments, LLC cases, an inspector removed all miners, including the owner, from the site based on a withdrawal order issued pursuant to Section 104(g) and declined the owner’s request to accompany the inspector during the physical inspection. The Administrative Law Judge dismissed the case because the inspector violated the operator’s Section 103(f) rights. The Commission overturned the decision on appeal, reasoning that the jurisdictional language in Section 103(f) did not require the remedy of dismissal, but might prevent MSHA from presenting evidence obtained from the inspection at trial (also known as the exclusionary rule).

Despite the ‘shall’ language in Section 103(f), MSHA may nonetheless proceed with an inspection without affording the operator an opportunity to accompany the inspector. However, the inspector may only do so when there is a rational justification for doing so (or a recognized statutory exception), and then risks having the evidence from the inspection excluded at trial or having any enforcement actions issued, dismissed in their entirety. While the operator’s due process rights may not be absolute, they cannot be dismissed or ignored.

The interplay between Section 103(a) and Section 103(f) of the Mine Act is far from clear, but here are some thoughts to consider in balancing the prohibition of advance notice of inspection with your rights as an operator to accompany the inspector:

• Conversation with the inspectors upon their arrival at the site should be documented and demonstrate the intent to exercise legitimate Section 103(f) rights to accompany the inspection and not to provide advance notice.

• Ask to hold the pre-inspection conference to allow for gathering of appropriate operator and contract personnel, along with miner’s representatives. If there is resistance, cite the inspector to MSHA’s PPM regarding the ability to make ‘essential’ preparations.

• Calls should not be made to notify anyone of MSHA’s presence, but only to gather people to arrange the inspection representatives under Section 103(f). Calls should not be made for the purpose of notifying employees to cover up violations.

• Seizing cell phones should be questioned and objected to as an unreasonable search and seizure.

• If MSHA directs that no calls be made, that should be documented. If the MSHA inspectors go about the inspection and deny Section 103(f) rights, an operator may be able to effectively argue that the evidence gathered while operator representatives were excluded from the inspection should not be allowed admission in a subsequent challenge.

Dana M. Svendsen is an associate in Jackson Kelly PLLC’s Denver office, practicing in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0011 or dmsvendsen@jacksonkelly.com.

Failing to contest MSHA citations when valid defenses exist can unknowingly result in significant increases in penalty amounts.

Mine operators take an individualized approach to handling MSHA enforcement actions, depending on their business needs and philosophy. Some operators contest, litigate, and take to trial any citation that they believe has been inappropriately issued, regardless of the monetary amount of the associated fine or the amount of legal fees associated with the contest. On the other end of the spectrum are operators who choose, despite the existence of meritorious defenses, to forego challenging citations in all but the rarest of circumstances. Many operators in this latter category believe that their approach fosters a better relationship with MSHA which, in theory, leads to MSHA inspectors being more flexible in situations where the inspector has considerable discretion over whether or how to issue a citation. Although this approach may appear advantageous in the short term, operators who adopt this strategy must be cognizant of the unintended (and likely unconsidered) long-term consequences of consistently accepting citations when valid defenses are present.

When a citation is issued, there are several factors that are considered to determine the monetary penalty associated with the citation: (1) size of the mine operator; (2) history of previous violations; (3) the operator’s negligence associated with the alleged violation; (4) the gravity associated with the alleged violation; (4) the operator’s good faith in abating the citation; and (5) the effect of the penalty on the operator’s ability to continue in business. For each factor, a point value is assigned which, in turn, determines the amount of the fine. As the point value increases, the amount of the fine increases correspondingly.

What many operators who rarely challenge citations (perhaps in hopes of staying “friendly” with MSHA) fail to consider is the cumulative effect of this practice on the “history of previous violations” factor above. This component of the penalty calculation is divided into two elements: (1) total number of violations; and (2) repeat violations of the same standard. Although the practice of routinely accepting citations implicates both of these factors, the “repeat violations” factor is, in many ways, the factor that an operator can control the most by closely monitoring which citations are contested and which citations are accepted.

The method for calculating repeat penalty points is relatively straightforward. Repeat points can only be assigned if the operator has received 10 violations in the preceding 15-month period and if there has been a minimum of six violations of the same standard during that same time frame. For example, violations of 30 C.F.R. § 56.20003(a) would not be included in the repeat history of violations for 30 C.F.R. § 56.20003(b). Additionally, repeat violations of the same standard include only violations that have been paid or finally adjudicated. An operator can receive a maximum of 20 repeat penalty points that are included in the overall calculation of points used to determine the given monetary penalty.

One of the most common situations in which repeat points rear their proverbial ugly head are citations involving commonly-cited standards such as 30 C.F.R. § 56.20003, the housekeeping standard. This standard generally requires workplaces, passageways, storerooms, and floors to be maintained clean and orderly and free from nails, splinters, holes, loose boards, and the like. As you can imagine, this standard can be utilized by an MSHA inspector in a litany of circumstances and leaves the inspector with wide discretion to decide whether an area is “clean and orderly.” Unsurprisingly, this standard is one the most frequently cited standards every year.

Because of this, an operator could easily be subject to nauseating increases in penalty amounts, even though the alleged violations were found by the inspector to be non-serious conditions that were unlikely to cause harm to a miner. For example, if a mine met the criteria for the maximum number of penalty points for the repeat violations factor (an additional 20 penalty points), the fine associated with a non-serious citation could increase from $512 (79 penalty points) to $2,536 (99 penalty points)! The lesson to be learned here is that a conscientious operator must constantly take inventory of its history of violations, determine whether it is at risk for an increase in repeat penalty points, determine whether any valid defenses to the alleged violation exists, and then plan its litigation strategy accordingly. Otherwise, relatively insignificant citations could eventually lead to serious financial consequences.

K. Brad Oakley is an associate in Jackson Kelly PLLC’s Lexington, Ky., office where he represents the mining and construction industry in safety and health enforcement actions. He can be reached at 859-255-9500 or kboakley@jacksonkelly.com.

MSHA’s disregard for rulemaking authority makes its way to the Review Commission.

By Patrick W. Dennison

The Mine Act’s requirement for notice and comment rulemaking provides a check on the power of the Mine Safety and Health Administration (MSHA) to create and enforce rules and regulations. Without such requirements, MSHA would have carte blanche to create laws and regulate the mining industry without the involvement of the public. MSHA regulates principally by rules promulgated pursuant to Section 101 of the Mine Act, 30 U.S.C. § 811. MSHA also issues implementing regulations pursuant to Section 508 of the Act, 30 U.S.C. § 957. Both Sections 101 and 508 provide the public with notice of the proposed standard or regulation, and afford the public with the opportunity to comment before the proposed standard or regulation becomes final. This development and subsequent implementation of such standards involves rigorous scrutiny and debate by MSHA and the mining industry through notice and comment rulemaking.

Yet, despite these established principles, MSHA consistently disregards these requirements and, through the guise of “interpretation,” in essence creates new laws without subjecting them to the scrutiny of rulemaking. A recent case pending appeal before the Federal Mine Safety and Health Review Commission (FMSHRC) involving continuity and resistance testing pursuant to 30 C.F.R. § 56.12028 highlights MSHA’s disregard in this respect and exemplifies an intent to regulate the mining industry without adhering to important rulemaking procedures.

From at least 1977 until 1993, MSHA did not require continuity testing of extension cords in compliance with Section 56.12028. This understanding was made explicit in MSHA’s 1988 Program Policy Manual (PPM), which established that “the annual test does not apply to grounding conductors in trailing cables, powers cables, and cords which provide power to portable or mobile equipment” [(emphasis added) PPM at 51-52 (1988)]. In 1994, a Program Policy Letter (PPL) was issued which, for the first time, sought to mandate testing, as prescribed in Section 56.12028, of cables, power cords, and cords that supply power to tools and portable or mobile equipment. The PPL guidance was subsequently incorporated into the PPM in 1996 and remains the same today.

The legitimacy of MSHA’s new requirement pertaining to continuity and resistance testing was addressed in a 1999 decision by Administrative Law Judge Hodgdon [Hibbing Taconite Co., 21 FMSHRC 346 (ALJ Hodgdon March 1999)]. In Hibbing Taconite, ALJ Hodgdon vacated 67 citations for alleged violations of 30 C.F.R. § 56.12028 and determined that the standard did not apply to extension cords, power cords, and cables. ALJ Hodgdon further found that the Secretary had inappropriately tried to characterize the 1994 PPL as an interpretive rule to avoid the procedural requirements of the Mine Act.

ALJ Hodgdon determined that the 1994 PPL was not an interpretive rule because it had the effect of amending a prior legislative rule. ALJ Hodgdon determined that notice and comment rulemaking was required to effect the substantive change to the rule because Section 56.12028 “clearly applies only to grounding systems,” and not to extension cords (emphasis added). He then ordered the Secretary to proceed with notice and comment rulemaking should she seek to apply Section 56.12028 to extension cords, power cords, and cables. The Secretary did not seek review of the decision. Nor did the Secretary heed ALJ Hodgdon’s decision. In the 12 years since the decision in Hibbing Taconite, the Secretary has not engaged in rulemaking to formally establish its enforcement predilections as a new standard. MSHA neither withdrew nor amended the PPL/PPM and, instead, reissued a PPM applying the standard in the exact manner specifically prohibited by the ALJ and Mine Act.

This overt disregard led to a case currently pending before the Federal Mine Safety and Health Review Commission. Relying primarily on the same arguments she did in Hibbing Taconite, the Secretary again sought to apply continuity and resistance testing to cables and power cords [Tilden Mining 33 FMSHRC 876 (ALJ Paez April 18, 2011)]. This time, however, the ALJ upheld the violations of Section 56.12028. In so doing, he found that extension and power cords are included in “grounding systems” and viewed the Secretary’s amended application of Section 56.12028 as only an interpretive change that did not amend the rule. He further held that, because such application was only an interpretative change, the Secretary was not required to comply with notice and comment rulemaking. The ALJ relied upon the same 1994 PPL and the 1996/2003 PPM as justification for the change in interpretation, despite the aforementioned policies providing entirely new requirements, and the prior decision in Hibbing Taconite. Moreover, in an attempt to distinguish ALJ Hodgdon’s holding in Hibbing Taconite, the ALJ suggested that a 14-year passage of time (since MSHA sought to apply Section 56.12028 to extension and power cords) provided the operator with notice of the Secretary’s change in the application of Section 56.12028.

The fundamental issue with this decision, however, is that the inclusion of extension cords and power cables is not specified in the rule, and it is not logically included within the rule. It is a substantive change best identified by the drastic change between the 1988 PPL and the 1994 PPL. It imposes entirely new obligations on operators to annually test, at the expense of significant man-hours, countless trailing cables, power cables, and extension cords not previously subject to Section 56.12028. Such an amendment required the Secretary to proceed with notice and comment rulemaking [Hibbing Taconite, 21 FMSHRC at 355]. This is consistent with Commission case law even where such change is held to only be interpretive. In Keystone Coal Mining Corp. [16 FMSHRC 6 (Rev. Comm. January 1994)], the Commission held that, where MSHA had consistently enforced a regulatory standard for 20 years, a subsequent effort to change its enforcement consistent with a new interpretation of the standard constituted a substantive, not interpretive, change requiring notice and comment rulemaking.

The outcome of this decision may drastically affect the Secretary’s ability to enact substantive rules without involving the industry. A decision permitting MSHA to avoid its rulemaking responsibilities will provide MSHA with a freer hand to regulate by fiat AM

Patrick W. Dennison is an associate in Jackson Kelly PLLC’s Pittsburgh office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 412-434-8815 or pwdennison@jacksonkelly.com.

Is any document off limits?

by Whitney G. Clegg

Does the Mine Safety and Health Administration (MSHA) have carte blanche access to the files and records kept in your mine office? Since 1979, the agency has traditionally followed the Sewell Coal decision when a mine operator challenged personnel record demands. However, two recent decisions issued in the Big Ridge and Spartan Mining cases may signal a change in MSHA’s approach.

MSHA’s authority to inspect personnel records and other documentation is found in 30 C.F.R. Part 50. The regulation provides that MSHA shall have the right to inspect and copy information it considers relevant to verify a § 50.11 report or to determine compliance with the reporting requirements of Part 50. See 30 C.F.R. § 50.41.

In Sewell Coal Co., 1 FMSHRC 864 (1979), the issue was whether the Secretary was authorized, without obtaining a warrant, to examine a mine operator’s personnel records, which contained information both related and unrelated to reporting requirements under Part 50. Recognizing that there is a “strong judicial reluctance to read into a statute an authorization for a warrantless search of records not specifically required to be kept by law” and concluding that the Mine Act “does not authorize wholesale warrantless, nonconsensual searches of files and records in a mine office,” then-Chief Administrative Law Judge James A. Broderick held that Part 50 “does not authorize the Secretary to inspect without a warrant…personnel files containing medical and other information, some related and some unrelated to accidents, injuries, illnesses reportable under Part 50.” Id. at 872-873.

Thirty-one years after the Sewell Coal decision, in October 2010, MSHA began a nationwide initiative to conduct 39 compliance audits under the authority of Part 50. Each targeted mine was presented with a letter requesting, among other documents, “all payroll records and time sheets for all individuals working at [the] mine” and “all medical records, doctor’s slips, worker compensation filings, sick leave requests or reports, drug testing documents, emergency medical transportation records, and medical claims forms in [the mine’s] possession relating to accidents, injuries, or illnesses that occurred at the mine or may have resulted from work at the mine for all individuals working at [the] mine for the period of July 1, 2009 through June 30, 2010.” Various operators challenged these requests, questioning whether MSHA had the authority to demand, without a warrant, that the operator produce the requested medical and employment records and other company information pursuant to an audit under Part 50.

In two recently issued opinions, MSHA’s requests for payroll, medical records, and workers’ compensation injury records were upheld as a legitimate use of the Part 50 audit procedures by Administrative Law Judge (ALJ) Kenneth R. Andrews. See Big Ridge, Inc., et al., Docket No. LAKE 2011-116R (ALJ Andrews May 20, 2011); Spartan Mining Co., et al., Docket No. WEVA 2011-540R (ALJ Andrews May 23, 2011). Both cases are currently on appeal.

In the Big Ridge and Spartan Mining decisions, Judge Andrews held that the purpose of Part 50 is to implement MSHA’s authority not only to investigate but also to obtain and utilize information pertaining to accidents, injuries, or illnesses occurring at mines.

In reaching this conclusion, the ALJ held that the plain language of the statute and regulations creates a duty on the part of the operator to maintain and provide records to MSHA so that the agency may determine compliance with any requirements of the Act.

In order to develop effective health standards, control dataflow, and discover violations, MSHA was allowed to inspect and/or copy any information the agency thought might be relevant and necessary to determine compliance with reporting requirements. This includes medical records, employment records, and other company records. Additionally, the data would allow the agency to independently verify the information that had been submitted to it with regard to accidents, injuries, or illnesses.

According to Judge Andrews, “[i]t is the operator who possesses the means to ensure complete and accurate reporting. Absent an audit of company records, MSHA must rely solely on the information provided by the operator’s safety manager. If the company does not cooperate in the process, there can be no assurance that the safety and health information compiled by MSHA is correct.” Big Ridge at p. 9. Stated a little differently, “[a]bsent all of the documents and information [requested by MSHA], there can be no effective, independent verification of the information submitted by the operators to MSHA.” Spartan Mining at p. 10.

In reaching his decision, Judge Andrews distinguished the 30-year-old Sewell Coal case by holding that the actions of the MSHA inspectors under the nationwide initiative/Part 50 audits did not constitute warrantless searches; rather, they were simple requests that the operators produce certain documents, and the requests were found to be reasonably limited by both content and time. The ALJ reasoned that, because an inspector would not be rummaging through the files of an operator, there would be little chance that unrelated private information would be released.

Judge Andrews also noted that MSHA is listed as a public health agency exempt from the Health Insurance Portability and Accountability Act (HIPAA) requirements. He found that because “Congress has allowed the agency access to the records…in a pervasively regulated industry, there cannot be an expectation of privacy.” Big Ridge at p. 14; Spartan Mining at p. 15. He further dispelled employee privacy concerns by finding that the agency had a compelling need to verify reports and determine compliance with reporting obligations, and this need outweighs any interest the operator may have in privacy.

The Big Ridge and Spartan Mining decisions represent one ALJ’s ruling on this issue. The decisions are not binding in other cases, and, in the absence of controlling precedent, the issue remains undecided. However, these two recent decisions by Judge Andrews should prompt operators to evaluate requests for medical records and other non-required documentation on a case-by-case basis. When confronted with a request for such information, an operator must decide whether to voluntarily produce for inspection the non-required documentation knowing that it could possibly be used in support of violations against the mine. If the operator refuses, it may find itself facing enforcement action from the agency because of its refusal to do so.

Whitney G. Clegg is a member of Jackson Kelly PLLC’s Wheeling, W.Va., firm, working within the Occupational Safety and Health Practice Group.

She can be reached at 304-233-4000 or wclegg@jacksonkelly.com.

A recent ALJ decision establishes that the Mine Act’s imposition of ‘strict liability’ on operators is not without its limits.

By Ben McFarland

Most who are familiar with the Federal Mine Safety and Health Act (Act) are aware that it is generally said to be a “strict liability” statute. This simply means that the Act and its corresponding regulations set forth standards which, if not complied with, can and will result in the issuance of a citation, regardless of whether there was any “fault” on the part of the operator. In other words, if a prohibited condition exists, it is a violation of the Act, regardless of any mitigating circumstances.

In a recent case involving two citations issued for failure to maintain certain mobile equipment, the Secretary of Labor (Secretary) tried — and failed — to rely on strict liability principles in order to uphold the citations. See Wake Stone Corp., Docket SE 2010-95-M (ALJ Gill, May 6, 2011). The citations at issue in Wake Stone alleged violations of 30 C.F.R. §56.14132(a) for failing to maintain the service horns on an excavator and a bulldozer. Neither the excavator nor the bulldozer had been in operation during the course of the relevant shift, and, when the inspector sought to inspect the equipment, the operator insisted that the vehicles be taken through their pre-shift examination as required under 30 C.F.R. §56.14100. When the vehicles were taken through the pre-shift examination, the operator discovered the malfunctioning horns, noted the defects in its pre-shift examination report, and tagged the vehicles as non-operational.

When the issuing inspector arrived at the mine, the vehicles had not yet been tagged as being out of service, and it is ostensibly for this reason that the inspector was not persuaded by the subsequent pre-shift examination and, instead, issued the citations alleging violations of 30 C.F.R. §56.14132(a).

In the contest proceedings that followed, the Secretary relied heavily on strict liability principles, arguing that “the ‘plain-meaning’ of Section 56.1432(a) is that if a horn fails, then the horn has not been maintained, and a violation has occurred.”

The Secretary further argued that, because the vehicles were not tagged out of service, they “might have been used,” which rendered them eligible for inspection and possible violations of the Act.

Finally, the Secretary argued that a contrary interpretation of the Act would permit operators to “‘escape’ strict liability for alleged violations by declaring [the need for a] pre-examination and [subsequently] tagging the vehicles out of service while the inspector stands by.”

Although ALJ Gill noted that the Secretary’s argument in this regard presents a “reasonable concern that should not be taken lightly,” and further that there is case law that supports the proposition that, if equipment has not been effectively tagged out of service, it is eligible for inspection and potential violations, ALJ Gill nevertheless refused to find a violation of the Act under the circumstances presented. ALJ Gill focused on the interplay between 30 C.F.R. §56.14100 and 30 C.F.R. §56.14132(a) to support his decision and opined that these regulations must be analyzed and interpreted together, not in isolation of one another.

ALJ Gill first noted that Section §56.14100 provides that “self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift,” while §56.14132(a) provides that “manually-operated horns…on self-propelled mobile equipment…shall be maintained in functional condition.” Construing these regulations together, ALJ Gill concluded that §56.14132(a), a maintenance regulation, is the very reason that examination regulations such as §56.14100 exist. In other words, the entire basis for requiring that mobile equipment be examined is to allow the operator to discover defects (e. g. would-be violations) on mobile equipment and correct them before putting the vehicle into use.

ALJ Gill opined that because §56.14100 requires that an operator examine equipment for defects prior to putting such equipment in service, and the equipment at issue had not been put in service during the relevant shift, the operator should have been afforded an opportunity to examine the equipment prior to the issuance of any citation. Because the operator had not been afforded that opportunity in Wake Stone, ALJ Gill vacated the citations.

While the decision in Wake Stone is not precedent setting authority from the Federal Mine Safety and Health Review Commission (Commission), the decision could nevertheless prove to be fairly significant to mine operators.

Under the rationale set forth in Wake Stone, an operator arguably has the ability to pre-shift inspect mobile equipment that has not yet been operated on a particular shift prior to submitting such equipment to MSHA for inspection. Whether other administrative law judges and/or the Commission will agree with ALJ Gill’s decision in Wake Stone remains to be seen, but, regardless, Wake Stone is unquestionably a positive decision for the industry, and one that should encourage operators moving forward.

Ben McFarland is an associate in the Charleston, W.Va., office of Jackson Kelly PLLC where he practices in the firm’s Occupational Safety and Health Practice Group. He can be reached at 304-340-1235 or at bmmcfarland@jacksonkelly.com.

In today’s enforcement-first environment, no company is immune from imminent danger orders.

By Jason P. Webb

A little-noticed provision of recently enacted legislation is causing headaches for mine operators without providing meaningful benefit to the public. On July 21, 2010, the Dodd-Frank Wall Street and Consumer Protection Act (Dodd-Frank Act) was enacted in an effort to expand federal oversight of financial markets. Section 1503 of the Act contained new reporting requirements regarding mine safety, including disclosing the receipt of an imminent danger order issued pursuant to Section 107(a) of the Federal Mine Safety and Health Act of 1977 (Mine Act). In addition to imminent danger orders, Dodd-Frank requires companies to report their identification by the Mine Safety and Health Administration (MSHA) as candidates for or placement on a pattern of violations. This provision affects all publicly traded companies that operate or have subsidiaries that operate mines and requires disclosures within four days of their occurrence.

Public companies receiving such an order are now required to complete and file a Form 8-K “current report” with the Securities and Exchange Commission (SEC). The SEC characterizes Form 8-K current reports as necessary “to announce major events that shareholders should know about.” Other information required to be disclosed includes a company’s entry into bankruptcy or receivership, releases of important non-public financial information regarding the results of operations, as well as material modifications to the rights of security-holders.

Section 107(a) of the Mine Act authorizes MSHA inspectors to issue orders requiring the immediate withdrawal of all miners from an area where the inspector determines an imminent danger exists. Defined as a condition or practice which could reasonably be expected to cause death or serious physical harm before they can be abated, Congress viewed imminent danger orders as identifying important breaches of safety protocol that may be of interest to shareholders and potential investors. However, and unlike accidents which operators are required to report to MSHA under 30 CFR § 50.10 and are exhaustively defined at 30 CFR § 50.2(h), there is no similar provision defining or offering binding criteria to aid inspectors in their determination of what constitutes an imminent danger.

Given this discretion, it should come as little surprise that there are different perceptions among inspectors as to what sort of event constitutes an imminent danger to the health and safety of miners. For instance, on May 5, 2011, one underground mining company issued a Form 8-K to disclose to shareholders that it had received an imminent danger order. In that instance, an employee of a landscaping contractor used by a subsidiary of the company was observed using a weed-eater without glasses. The inspector indicated that “actual grass and weed clippings were observed to be physically present on the employee’s face in close proximity to his eyes.” Similarly, a western surface mining company received an imminent danger order after two different coyotes had been spotted in the vicinity of the mine and its surface facilities. Aggregates producers are not immune from such orders. After all, there are rattlesnakes in Texas and yard clippings in North Carolina. In the final analysis, no company is immune from such orders in today’s enforcement-first environment.

While these filings are highlighted because they are humorous in their liberal construction of what constitutes an “imminent danger” to miners’ health or safety, the concern is that the mere issuance of an imminent danger order could unfairly prejudice the company in the eyes of investors and shareholders. Given the importance of other information that is required to be disclosed via Form 8-K and the presence of wildlife withstanding, investors might attach undeserved weight to other 107(a) orders that, in actuality, relate to poor individual decision making or natural events and not poor safety cultures. Such orders may also simply be invalid.

Fortunately, Section 107(e) permits operators to contest imminent danger orders within 30 days of their issuance. Because the order has no penalty attached, this is the only time it can be contested. If subsequently vacated, it would be appropriate for an operator to issue a subsequent Form 8-K to provide notice of its vindication.

The other related concern is that Congress’ selection of imminent danger orders as a proxy for mines’ safety cultures was not a good one. As the examples previously discussed reveal, naturally occurring phenomena are required to be reported, but have no bearing on a company’s safety culture. A review of other imminent danger orders likewise reflects isolated instances of poor decision making on the occurrence of natural and short-term events rather than systemic safety problems. If the purpose of Form 8-K disclosures is, as the SEC provides, to inform shareholders as to major events affecting safety and health, then one would think that Congress could have identified another more appropriate standard on which to rely. Of course, mine operators don’t make the laws; rather, like the rest of us, they just have to follow the rules whether they serve the intended purpose or not.

Jason P. Webb is an associate in the Pittsburgh office of Jackson Kelly PLLC. Previously, he clerked at the Office of Administrative Law Judges, U.S. Department of Labor. He can be reached at 412-434-8055 or jpwebb@jacksonkelly.com.

Get it in writing

Work refusals and temporary reinstatement under the Mine Act.

By Page H. Jackson

Every supervisor at a mine needs to be aware of the procedures to follow if a miner raises a question as to whether a given procedure or assignment is unsafe or unhealthful. Miners have a right to refuse to work in conditions which are believed to be unsafe or unhealthful, and a mishandled situation can have significant ramifications for the miner, the supervisor, and the mine operator. Mine operators need to ensure that “work refusals” are properly evaluated and documented.

A miner’s refusal to perform work is protected under the Mine Act if it is based upon a reasonable, good faith belief that the work involves a hazard. However, the miner is required, if reasonably possible, to communicate to some representative of the operator the nature of the perceived hazard and his concern that it would affect his health or safety.

Communication of the safety-related concern is an essential prerequisite for a protected work refusal because it provides the mine operator with an opportunity to address the miner’s concerns in a way that should alleviate the miner’s fears. A miner’s continuing refusal to work may become unreasonable after an operator has taken reasonable steps to alleviate concerns or ensure the safety of the challenged task or condition. Alternatively, the operator can assign the miner duties away from the perceived hazard, and a continued refusal by the miner to work under those circumstances is not protected by the Mine Act.

If the representatives of the mine operator do not respond correctly to a work refusal, any effort to discipline the miner could be considered discriminatory under Section 105(c) of the Mine Act. Such a finding could result in significant civil penalties, a back pay award, and the mine operator being ordered to re-employ the discharged miner in the exact position he or she held at the time of the protected activity.

The Mine Act provides a complainant who has been discharged for allegedly engaging in protected activity with the unusual remedy of temporary reinstatement. Section 105(c)(2) of the Mine Act, 30 U.S.C. Section 815(c)(2), provides that, if a complaint of discharge is not frivolous, the complaining miner is entitled to be temporarily reinstated to his prior position pending a final order on the merits of the discrimination complaint. Although a mine operator is entitled to a hearing if the Secretary of Labor files an application for temporary reinstatement, the scope of the hearing is narrow, being limited to a determination by the judge as to whether the complaint was frivolously brought. See Secretary of Labor on behalf of Price v. Jim Walters Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990).

Temporary reinstatement can be an onerous burden for a mine operator. In two recent decisions, the Federal Mine Safety and Health Review Commission (the Commission), held that the plain meaning of Section 105(c)(2) allows a temporary reinstatement order to remain in effect until there has been a final Commission order on the merits of the miner’s underlying discrimination complaint. See Gray v. North Fork Coal Corp., KENT 2009-1429-D (Jan. 7, 2011); Baird v. PCS Phosphate Co. Inc., SE 2010-74-DM (Jan. 7, 2011). In these cases, MSHA had sought and obtained a temporary reinstatement order from a Commission administrative law judge (ALJ), but later determined that the evidence was insufficient to support a finding of a violation of Section 105(c). In each case, the mine operator succeeded in having the order of temporary reinstatement dissolved by the ALJ based upon MSHA’s determination and the complainant then appealed the temporary reinstatement dissolution order to the Commission.

By a slim three-to-two majority, the Commission ruled that, once granted, a temporary reinstatement order remains in effect throughout the appeals process regardless of the decision by the ALJ at the trial on the merits of the complaint. The Commission held that the plain language of the Section 105(c) of the Mine Act mandates that result and that it does not matter whether the complaint is litigated by the Secretary under Section 105(c)(2) or by the miner under Section 105(c)(3). The Commission’s decisions in Gray and Baird have been appealed to the appropriate federal circuit courts, but, until those decisions are overturned, mine operators will have to live with the new interpretation of Section 105(c). Thus, a mine operator might prevail at trial, but be forced to continue to employ and pay a complainant who can drag out the appeals process for the cost of a postage stamp!

In addition, now more than ever, mine operators must be extremely careful if they enter into a temporary economic reinstatement agreement with MSHA. Mine operators must not accept ambiguous language regarding reinstatement, but must be extremely specific about the duration of the agreed-to temporary economic reinstatement. In Payne v. Spiro Mining, LLC, CENT 2011-42-D (ALJ McCarthy, Nov. 23, 2010), the parties entered into a Settlement Agreement and Joint Motion for Temporary Reinstatement which failed to provide that the temporary economic reinstatement would terminate upon the Secretary’s finding of no violation. The ALJ ruled that settlement constituted an agreement to economically reinstate the miner, in lieu of actual reinstatement, until the merits of his discrimination complaint were resolved. Interestingly, Judge McCarthy contrasted the settlement agreement in Payne with that in Nagel v. Newmont USA Ltd., 32 FMSHRC 1061 (ALJ McCarthy, July 2, 2010), where he ruled that the complainant was not entitled to further temporary reinstatement. In Nagel, Judge McCarthy found that the temporary economic reinstatement settlement agreement signed by the complainant had “clearly and unmistakably waived his right to temporary reinstatement once the Secretary made a determination of no discrimination…” See Nagel, 32 FMSHRC at 1065.

Recent decisions of the Commission have severely limited a mine operator’s ability to raise legitimate defenses at the temporary reinstatement stage of a discrimination case. The Commission has ruled that the only issue at a temporary reinstatement proceeding is whether the miner’s complaint appears to have merit. Conflicts in testimony, other credibility determinations, and affirmative defenses are not to be resolved at a temporary reinstatement proceeding. In light of these rulings, it appears, the testimony of the complaining miner may be sufficient to meet the standard required by the Mine Act.

Therefore, mine operators must be prepared to properly handle and document work refusals by miners. Documentary evidence, such as a signed statement by the complaining miner acknowledging that the miner did not communicate the nature of the perceived hazard to management before leaving the work area or acknowledging the mine operator offered the miner alternative work, could be critical at the temporary reinstatement hearing as those issues are prerequisites to a protected work refusal.

Whenever a miner refuses a work assignment as unsafe or unhealthful, a prudent mine operator should try to obtain a signed statement by the miner regarding the event whenever possible. It is best if the statement is in the handwriting of the complaining miner and is signed by that miner. Be sure that the statement includes matters such as whether the miner communicated the specifics of the hazard to mine management and to whom, what steps the mine operator took to alleviate the miner’s concerns or to correct the perceived hazard, and, finally, whether alternative work away from the perceived hazard was offered and refused.

It is expected that Section 105(c) cases will continue to have a high priority under the Obama Administration and that MSHA will vigorously prosecute any colorable case of discrimination. The temporary reinstatement hearing is a strategic point in any defense of a Section 105(c) case. Mine operators need to put themselves into the best possible position to win at that stage.

Page H. Jackson is counsel at Jackson Kelly PLLC. He joined the practice after serving with the Mine Safety and Health Administration and has more than 30 years of litigation experience in safety and health issues. He can be reached at 202-973-0200 or pjackson@jacksonkelly.com.

It’s time to set aside hyperbole and focus on whatever drives safety reform.

by Mark Savit

I am sad to say that this will be our last column in Aggregates Manager. We started writing for the magazine almost at the same time it was founded. During the 15 years we have written columns, we’ve tried to keep you informed about developments on a number of legal fronts, mostly involving some sort of federal regulation. Through those columns, we’ve had a chance to meet many of you, and you have had a glimpse into the way we see things. My columns have primarily been about the Mine Safety and Health Administration (MSHA), and, for one last time, I’d like to tell you how I view the agency.

At the outset, I have never had any question that 1) safety is the number one priority in the mining workplace, and 2) to the extent that MSHA furthers that goal, I fully support its efforts. The problem has always been that we sometimes disagree on the best way that goal can be achieved. After the three tragic coal mine accidents in 2006, MSHA began to increase penalties in a very significant way. In addition, they began to write a lot more citations. On top of that, they had already significantly increased the percentage of elevated enforcement actions since 2000, and they remained at that increased rate between 2006 and 2010. While there have been steady declines in injury rates on the non-coal side of the mining industry, the declines have not matched the increases in enforcement during the period. This raises a question that has been on my mind for the last 30 or so years. That question is whether there has ever been any study done demonstrating the existence (if any) of a correlation between increased enforcement and safety?

For the last five years or so, both MSHA and the Congress have acted as though the relationship is obvious. Their reaction to every (admittedly tragic) event over the last five years has been to call for ever more stringent legislation and to institute ever more punitive enforcement. They simply assume that additional legislation and more stringent enforcement will lead to better safety records. While that assumption may seem logical, it has never been scientifically tested. And, in fact, experience on the industry side would tend to demonstrate that it may not be correct.

What the industry learned 20 or more years ago was that a list of prohibitive rules, accompanied by negative reinforcement, did not result in significant improvements in safety or significant reductions in accidents. Rather, the studies showed that greater reductions in accidents could be obtained by encouraging employees to make good decisions about safety and empowering them to make those decisions. In addition, most current thinking supports the idea that safety efforts should be “risk based” and thus able to cope with changing conditions and trends, rather than inflexibly focused on conditions which may have changed or which may no longer exist.

By contrast, the Mine Act, which relies solely on prohibitive rules and punishment, was written in the 1960s, long before currently accepted safety theory had come to be. It relies entirely on negative reinforcement and fixed, relatively inflexible rules, many of which either deal with outdated or unused technology, or completely ignore advances in mining engineering or other mining-related disciplines. In doing so, it betrays the very cause it is supposed to support.

I have been in many, many meetings where this subject has come up. All of them seem to end up in “argument by horror story.” Advocates for stricter enforcement invariably tell stories about the small number of rogue operations that completely ignore even the most basic safety practices, inevitably resulting in (pick one) a horrible agonizing death, permanent disfigurement, complete disability, or heart-rending consequences to a young, growing family. In response, those on the other side of the debate invariably respond with some story detailing some excess in MSHA enforcement involving (pick one) the citation involving the lack of a telephone or a stretcher at a one-man mine, a microwave, a picture frame, some minor paperwork problem, or a trash can lid.

Although there is a true story behind each of the arguments I suggested, they completely miss the point. There will always be scofflaws who deserve punishment, and there will always be regulatory excesses as long as there are regulators. Neither side, however, ever addresses the underlying questions of whether the current regulatory system is effective and whether creating “more of the same” will make it any more effective. One would hope that there could be an agreement on how to determine the real efficacy of what MSHA is doing in some impartial way and then to adjust the current system (if needed) to improve it. Unfortunately, that is far from likely. What we have seen in the Congress during the last five years is not — at least to my mind — increased interest in mine safety, but rather, increased interest in the politics of mine safety.

The bottom line on all this is that we need to be committed to the idea that whatever it is that gets us to increased safety (including more enforcement, if that’s what the studies show) is something we are willing to pursue. Until then, we need to keep questioning whether the current system is really getting us anywhere. We need to keep exploring the best ways to achieve the safest work environment that can be achieved. We need to keep working for safety in the best way we know how, and we need to do our best, regardless of what MSHA might or might not be doing, to protect our miners.

I’ll see you all down the road. Until then, stay safe.

Mark Savit is a partner with Patton Boggs LLP. He can be reached at 303-894-6117 or msavit@pattonboggs.com.

It’s in the news and top-of-mind in many regulatory agencies, so assess your risks related to hexavalent chromium.

by John McGahren, Mark Savit, and Ora Sheinson

Hexavalent chromium (hex chrom) is in the news and on the front line for regulatory agencies and plaintiff lawyers. The Occupational Safety and Health Administration (OSHA) regulated hex chrom (or hex chrome as it is also sometimes called) in 2006 and is enforcing its new rules with citations being issued around the country for items such as testing and monitoring failures and hazard communication failures. Even for cement, which OSHA exempted from the hex chrom exposure regulation, the Deputy Assistant Secretary for OSHA stated:

“OSHA has stepped up its inspections of workplaces where portland cement is manufactured and where portland cement is used on construction sites. The goal of our enforcement emphasis is to ensure that employers train their workers about hex chrome hazards. We also want to be sure that manufacturers include on their material safety data sheets for portland cement the presence of any trace contaminants of hex chrome and their associated hazards, such as allergic contact dermatitis.”

Unions and other groups continue to lobby for stricter workplace regulations. At the same time, while the Environmental Protection Agency (EPA) does not currently have a drinking water standard specific to hexavalent chromium, on Jan. 11, 2011, the EPA issued guidelines requiring public utilities to monitor and sample drinking water for hex chrom. Drinking water standards for hex chrom are under consideration in California and may soon be considered by the EPA. Perhaps most telling, ligation regarding hex chrom exposures from cement plants has been on the rise in California, and cement companies in other parts of the country have been addressing an increase in community concerns regarding potential exposures.

Hex chrom is present in the environment both from naturally occurring sources and as the byproduct of numerous industry activities — including trace amounts that are naturally occurring in portland cement. Also referred to as chromium 6, or Cr(VI), hex chrom exposure is most commonly linked to a rare dermal allergic reaction after repeated exposures. In September 2010, the EPA (through IRIS, its program for evaluating potential risks to human health from chemicals in the environment) proposed new numbers for potential cancer risks from hex chrom. However, the potential cancer risks discussed by the EPA relate to significantly higher hex chrom exposures than the trace amounts found in portland cement, that OSHA found do not require additional worker protections.

Yet, unions have mounted a significant campaign to remove this exclusion. Following a 2007 settlement with a number of unions, OSHA agreed to evaluate exposures to hexavalent chromium during construction site assessments. On June 15, 2010, also as the result of a union lawsuit, OSHA issued a directive that required worker notification for all hex chrom exposures, even those below the permissible exposure limit (PEL). This directive imposes new requirements for workplaces currently exempt from the hex chrom PEL. In addition, OSHA reportedly is reviewing the hex chrom limit and considering lowering the standard from 3.5 µg/m3 to 0.02 µg/m3.

While the EPA does not currently specifically regulate hexavalent chromium in the water, California has proposed a public health goal (not a regulatory limit) of 0.02 parts per billion (ppb) for hex chrom in drinking water. The EPA drinking water standards currently impose a limit of 100 ppb of total chromium, with no requirement to specifically test for specific types of chromium. In December 2010, the Environmental Working Group released a report indicating that 31 out of 35 U.S. cities tested had hexavalent chromium in the water in amounts that greatly exceeded the proposed California public health goal. None of the cities were in violation of the current EPA drinking water requirements. After the report came out, the EPA issued its guidance regarding testing drinking water, and EPA Administrator Lisa Jackson met with a group of Senators who raised the issue of evaluating potential drinking water standards.

Litigation and community concern regarding potential exposures to hexavalent chromium from cement plant operations has been building up over the last several years. In 2008, for example, California’s South Coast Air Quality Management District sued a cement company in Riverside, demanding cleanup costs for alleged soil and groundwater contamination from hex chrom. The company settled with the state for $1 million; however, personal injury and property damage class action lawsuits followed rapidly and are still pending in state court.

Also in 2008, a cement plant in Davenport, Calif., faced community challenges and Erin Brockovich’s attentions over allegations that cement dust containing hexavalent chromium was contaminating the town. After an investigation, in January 2009, the Santa Cruz County Health Agency alleged that a cement plant was the source of the hex chrom in the community. In that same report, however, the county concluded that the levels of hex chrom in the air and dust were all below California’s strict exposure standards. In 2010, the EPA stepped in to monitor for hexavalent chromium at Stevens Creek Elementary School in Cupertino, Calif., alleged to have come from a nearby cement plant. The EPA discontinued monitoring the school after finding no elevated levels of hex chrom.

Potential new regulation of hex chrom in drinking water, enforcement actions, or community concerns can lead to new lawsuits, including water utilities seeking to cover compliance costs and resourceful plaintiffs’ lawyers seeking to capitalize on local press. To minimize risks of future litigation and government enforcement, concerned companies should stay in touch with local, state, and regional water quality departments and seek early warnings regarding elevated levels of hex chrom in the drinking water in and around the area where their business is located. Communication with community groups and leaders is critical in amassing support for safe jobs, permit renewals, or expansions — as well as in discouraging plaintiff lawyer recruitment efforts for unwarranted cases. Due diligence and information gathering regarding other potential sources of hex chrom may also be warranted. Retaining science and engineering experts to provide assistance can bring critical knowledge to the problems well before they arise, and these professionals can help plan responses to community concerns or press inquiries.

Industry has long been targeted as emission sources for potentially toxic materials like mercury, fly ash, silica, and lead, and hex chrom is simply one of the most recent to receive press attention. Despite the many studies finding that cement industry operations are not causing harm in the water, air, or soil surrounding communities, industries like cement will remain a target and need to be vigilant and responsive to community or agency concerns. Companies should apply the lessons learned from structuring and implementing communication, coordination of scientific efforts, and government relations to address these risks on an integrated basis together with successful legal defense strategies. By combining unique health, safety, and environmental expertise with independent scientific experts and advice from nationally recognized litigators, operators can prevent and minimize risks associated with these challenges. AM

John McGahren and Mark Savit are partners with Patton Boggs LLP. McGahren can be reached at 973-848-5610 or jmcgahren@pattonboggs.com. Savit can be reached at 303-894-6117 or msavit@pattonboggs.com. Ora Sheinson is an associate with the practice. He can be reached at 973-848-5615 or osheinson@pattonboggs.com.