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December 2012 Insights
 

December 2012 Insights

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    December 2012 Insights December 2012 Insights Document Transcript

    • INSIGHTSPlease provide us with yourcomments and forward INSIGHTSto anyone that might beinterested. If you provide us withemail addresses, corrections or For more information go to: http://www.pattonboggs.com or contact Henrydeletions, we will adjust the Chajet(hchajet@pattonboggs.com) at 202.457.6511, Markdistribution list, or subscribe Savit (msavit@pattonboggs.com) at 303-830-1776, or Brianonline. Hendrix (bhendrix@pattonboggs.com) at 202-457-6543. DECEMBER 2012 INSIGHTS IN THIS ISSUE HOME 1. Sequestration Could Have Big Impact on Agencies 2. Post-Election Avalanche of Rules Could be Coming 3. OSHA Launches Whistleblower Pilot Program 4. Fatalities, Injuries Decline in 2011 5. IG Calls for Changes to OSHA Targeting Program 6. MSHA Issues New Guarding Guide 7. OSHA Enforcement Policy in Residential Construction 8. Firms Pay Up in Whistleblower Cases 9. Combustible Dust Global OSHA Settlement 10. Refineries Hit With Big Penalties after Incidents 11. $950,000 Settlement in Crandall Canyon Mine Accident 12. MSHA Impact Inspections 13. EPA IG Auditing CSB’s Investigative Process 14. CSB’s Moure-Eraso: Combustible Dust Standard Neededt 15. Roundup of Current CSB Investigations 16. Kentucky Man Gets Three Years in Miner Training Scam 17. Three Sentenced to Prison for Asbestos Violations 18. Louisiana Woman Indicted for Impersonating Inspector 19. MSHA Medical Records Demand Raises Constitutional Issues 20. Appeals Court Rules on MSHA Temporary Reinstatement 21. Kentucky Mine Operator, Supervisors Plead Guilty 22. $7.3 Million Award in Popcorn Lung Case 23. Construction Worker Awarded $2 Million after Accident 24. Roundup of OSHA Whistleblower Cases 25. $48 Million Verdict Tops Mesothelioma Awards Page 1 of 11
    • I. ADMINISTRATION/CONGRESS1. SEQUESTRATION COULD HAVE BIG IMPACT ON AGENCIESFederal agencies face the possibility of substantial cuts to their budgets in January unless Congress acts to prevent them.In what has become known as sequestration, automatic cuts of 8.2 percent will be imposed across the federal government as away to reduce the nation’s deficit burden. The cuts became more likely after Congress failed to agree on a deficit reductionplan last year. As part of legislation the lawmakers approved to raise the federal debt limit, if no plan is passed, sequestrationwill occur automatically beginning next year. The reductions are to occur in domestic and military programs equally.If the cuts take effect, OSHA stands to lose $46 million, which could mean the loss of 81 full-time employees. MSHA would beout about $31 million. The Occupational Safety and Health Review Commission and its MSHA counterpart each would see $1-2 million in cuts. Insiders believe Congress will simply pass a law to delay the required cuts until it has time to craft anothersolution. Contact Henry Chajet (hchajet@pattonboggs.com, 202-457-6511) or Mark Savit (msavit@pattonboggs.com, 303-830-1776) for further information on sequestration impacts.2. POST-ELECTION AVALANCHE OF RULES COULD BE COMINGIn the face of strong criticism by the business community that regulations were holding back the economy and job creation, in2011 the White House began putting the brakes on numerous initiatives that were working their way through the regulatoryprocess. However, with the election over, speculation has arisen that the floodgates will begin to open.That could mean a number of new rules from OSHA and MSHA. Five OSHA rules remain under review at the White House:occupational exposure to silica, electric power transmission and distribution, the handling of retaliation complaints, standardsimprovement project, and occupational injury and illness recording and reporting. The MSHA rules are pattern of violations,proximity detection and civil penalties. All the rules might move forward, although the proposal on silica faces the biggestobstacles due to concerns over costs and benefits and new concerns raised about their impact on fracking.Waiting in the wings is a proposed rule from MSHA to control respirable coal dust that could include a 50 percent cut in thecurrent permissible exposure limit. The agency has not yet sent a final rule to the White House for review, but it is widelybelieved the rule is done and merely awaits a more favorable political climate. However, like the silica rule, it faces hostility inCongress. In 2012 budget language, Congress prohibited MSHA from implementing or enforcing a respirable dust rule. It wenteven further in 2013 budget language by refusing to permit MSHA to continue development of the rule. However, the agency’s2013 appropriation has not been passed; MSHA and all other federal agencies continue to work at 2012 funding levels under acontinuing resolution. II. AGENCIES3. OSHA LAUNCHES WHISTLEBLOWER PILOT PROGRAMIn October, OSHA announced it was setting in motion a pilot program that would allow complainants who file claims under theagency’s whistleblower protection program to attempt to resolve their issues with their employers through an alternative disputeresolution (ADR) process. The program is being implemented in two OSHA regions and offers two voluntary methods ofdispute resolution: early resolution and mediation. In a press release, OSHA said that when a whistleblower complaint is filed in Page 2 of 11
    • one of the pilot regions, the parties will be notified of their ADR options and may work through an OSHA regional ADRcoordinator to use these methods.The program will be piloted in areas served by regional offices in Chicago and San Francisco. The Chicago office servesIllinois, Indiana, Michigan, Minnesota, Wisconsin and Ohio. San Francisco serves California, Arizona, Nevada, Hawaii andother Pacific islands.4. FATALITIES, INJURIES DECLINE IN 2011A total of 4,609 workers died on the job nationwide in 2011 compared to 4,690 in 2010, according to preliminary data releasedrecently by the Bureau of Labor Statistics. The equivalent rates were 3.5 and 3.6 per 100,000 full-time equivalent workers,respectively. The 2011 figure works out to be an average of 13 worker deaths every day. The data include 458 homicides and242 suicides. Fatal work injuries in construction declined for the fifth year in a row but rose in private truck transportation for thesecond consecutive year. Work-related deaths among workers in the 20-24 age bracket were up nearly 18 percent.In mining, MSHA reported that the fatality and injury rates had dropped to their lowest levels ever. The fatality rate, adjusted towhole numbers, equated to 1.14 fatal injuries per 10,000 miners. By sector, the fatality rate was the lowest ever in Metal/Non-Metal (M/NM); however, the rate in Coal was fractionally above its 2009 rate, which was the best ever. The non-fatal days lostrate (1.78) and all-injury rate (2.73) also were the lowest ever in the industry.5. IG CALLS FOR CHANGES TO OSHA TARGETING PROGRAMOSHA should expand its site-specific targeting (SST) program to include employers with 11-19 workers, add some groupscurrently exempted from the program and encourage the states to do more, the Labor Department’s Office of InspectorGeneral (OIG) said in a report on the SST program in September.SST currently exempts construction contractors, employers in industries not considered hazardous and worksites with fewerthan 20 workers. OIG noted that 26 percent of all worksites with injury and illness rates high enough to have been included inthe program were exempted because they had fewer than 20 workers, were in states that did not participate in the program, orwere in industry groups not surveyed. OIG also found that worksites targeted by OSHA inspectors were almost four times aslikely to be inspected as worksites covered by state agencies.OIG recommended that OSHA include the highest-risk worksites listed in its annual OSHA Data Initiative survey, prioritize andcomplete inspections of the highest-risk worksites to ensure effective and efficient use of the program, complete an evaluationof SST and start a monitoring effort to continually evaluate the program’s effectiveness.OSHA Assistant Secretary David Michaels pushed back in a five-page response, saying some of what OIG suggested wouldrequire policy changes that OSHA cannot control or could weaken other OSHA enforcement efforts. For instance, he saidexpanding inspections to include businesses with 11 to 19 workers could mean some large employers that are more likely tohave violations would go uninspected. Michaels also pointed out that many employers not inspected under SST receive visitsunder OSHA emphasis programs.Michaels said OSHA is looking at requiring more industries to report injury rates. A 2010 proposal would add 52 industrygroups to those now required to report their industry and illness rates. However, that initiative has never made it past theproposed rulemaking stage. The Assistant Secretary also commented that OSHA cannot force states to participate. Page 3 of 11
    • SST is an annual program designed to target businesses with the highest days away from work, restricted or transferred rates.OSHA determines which companies go on the targeting list by analyzing OSHA 300 logs submitted by employers in industriesthat historically have high injury and illness rates. OIG’s audit covered SST program efforts from August 2010 throughSeptember 2011.6. MSHA ISSUES NEW GUARDING GUIDEMSHA has released a second guidance document dealing with machine guarding in the Metal/Non-Metal (M/NM) sector. At astakeholders’ meeting in October, the new guide was described as a sequel to one dealing with conveyor belt guarding thatwas released two years ago. The latest document covers machinery other than conveyor belts and, as was the case with theinitial release, it was developed in cooperation with industry and labor groups.Guarding regulations, specifically, 30 CFR 56.14107(a) dealing with moving machine parts, have been the most oft-citedviolations at non-metal surface mines for many years and remains so. However, according to the agency, guarding citationsdropped 39 percent after the conveyor belt guarding guidance was released in June 2010. MSHA chief Joe Main sees thattrend continuing. “I think we’re going to see some great improvements in compliance going forward,” he said.The new guide has been posted on MSHA’s website and contains 84 photo-illustrated slides. The format is similar to the 2010document in that comparisons are presented of compliant vs. non-compliant guards. Machinery covered includes drive andpower transmission components; crushers and screens; rotating, packaging and palletizing equipment; power tools andauxiliary equipment.MSHA’s guarding standards are intended to protect miners from deliberate, purposeful work-related actions such as duringinspections, testing, maintenance, lubrication, cleaning, troubleshooting and adjustments. However, they also are aimed atprotecting against inadvertent, careless or accidental contact but do not cover deliberate, purposeful, non-work-related actions.M/NM Administrator Neal Merrifield stated at the meeting that there would be no effort to vacate existing citations for allegednon-compliance which are now deemed compliant in the new guide. However, operators who have been cited for allegedviolations that the new guide declares are okay should consider contesting them. III. ENFORCEMENT7. OSHA ENFORCEMENT POLICY IN RESIDENTIAL CONSTRUCTIONFor the second time this year, OSHA has extended the deadline to end temporary enforcement measures associated with itsdirective in residential construction to prevent falls, which are the No. 1 cause of workplace deaths in that sector. The extensionwill run until December 15, 2012.OSHA issued a directive regarding residential construction that went into effect in June 2011. It replaced a policy that had beenin effect since 1999. In conjunction with the directive, to ease the transition the agency also put in place general policyguidance on enforcement and compliance assistance. The directive requires compliance with 29 CFR 1926.501(b)(13), whichrequires fall protection for workers engaged in residential construction at heights of six feet or more. However, if an employercan demonstrate infeasibility or that the mandated fall protection presents a greater hazard, it may implement a fall protectionplan under 1926.502(k).Temporary enforcement measures accompanying the policy change consist of priority free, on-site compliance assistance; Page 4 of 11
    • penalty reductions; extended abatement dates; measures to ensure consistency; and increased outreach. These measuresoriginally had been set to expire March 15, were then extended until September 15, and now extended yet again. The agencysaid that since October 1, 2011, it has performed more than 2,500 on-site visits and conducted more than 800 outreachactivities.8. FIRMS PAY UP IN WHISTLEBLOWER CASESThree employers who fired employees after they filed complaints with OSHA have been ordered to reinstate the workers andpay back wages and damages. A pilot will be reinstated and paid more than $500,000 after investigators determined he wasillegally terminated 3½ years ago from Northern Illinois Flight Center. He was fired after complaining to the FAA about allegedviolations in the Center’s pilot certification process. In Ohio, Dana Holding Corp. was ordered to pay just under $275,000 aftera financial analyst was let go in 2009 for raising concerns about alleged inaccuracies in a company database that could bereflected as inaccuracies in the company’s annual financial reports. Tennessee-based Mark Alvis, Inc. was ordered to pay$30,000 to a driver allegedly fired for refusing to haul a load because of an on-the-job injury and because he had exhausted hisservice hours, meaning he could not legally drive at the time. The government had originally ordered the company to pay$180,000; the settlement was reached after Mark Alvis appealed.9. COMBUSTIBLE DUST GLOBAL OSHA SETTLEMENTCarpet manufacturer Mohawk Industries, Inc. will implement procedures to prevent combustible dust explosions under asettlement agreement with OSHA. The agency cited Mohawk in June 2011 for six alleged violations at the company’s facility inOhio, including one involving dust. The agreement requires the Georgia-based company to abate alleged fire hazards at thefacility. In addition, Mohawk will hire a fire protection engineer to assess potential fire and explosion hazards at all four of itsU.S.-based carpet pad facilities, implement the engineer’s recommendations, develop and implement procedures for periodiccleanup and removal of accumulations of polymer foam dust, provide combustible dust and emergency evacuation training toemployees, and perform monthly inspections of fire-suppression sprinkler systems. The company’s other carpet pad facilitiesare in Georgia, Texas and Connecticut.10. REFINERIES HIT WITH BIG PENALTIES AFTER INCIDENTSA one-two punch by government regulators has resulted in fines totaling more than a half million dollars against SinclairWyoming Refinery Co.’s refinery. Federal and state OSHA authorities slapped the company with $215,000 in total fines after aflash fire on May 8, 2012 at the operation in Sinclair injured four workers.But the biggest fines came from the U.S. Environmental Protection Agency (EPA). It hit the refinery with a $378,000 penalty forthe company’s alleged failure to meet all the terms of a 2008 consent decree affecting the company’s two refineries inWyoming and another in Oklahoma. EPA’s fine followed an out-of-court settlement the company reached with the agency inAugust in which the Utah-based refiner agreed to pay more than $3.8 million in fines related to the lack of adequate pollutioncontrols. Sinclair also agreed to spend $10.5 million in pollution controls at its Sinclair and Casper plants.In New Mexico, Navajo Refining of Artesia has agreed to pay $400,000 as part of a settlement with the state’s OSHA agencyover alleged safety violations after an explosion left two dead and two injured. The blast in March 2010 occurred when acontract welder working on top of a storage tank ignited vapors from flammable liquids inside the tank. Page 5 of 11
    • 11. $950,000 SETTLEMENT IN CRANDALL CANYON MINE ACCIDENTThe Crandall Canyon Utah coal mine operator agreed to pay $949,351 to settle civil penalties MSHA levied following anaccident in 2007 that took the lives of . six miners, followed by the deaths of three additional personnel, including an MSHAinspector, during the recovery effort.Mine operator Genwal Resources, Inc. and MSHA separately announced the settlement in late September. Press releasesfrom the two sides reflected continuing disagreement about who was to blame for the tragedy. “In this settlement, GenwalResources and Andalex Resources have acknowledged responsibility for the failures that led to the tragedy at CrandallCanyon,” said Solicitor of Labor M. Patricia Smith. Genwal countered by saying in its statement that the mine "was safe, abelief shared by MSHA, who approved the plan, and the mine engineering firm on which Genwal relied.”Three other enforcement actions carrying $340,000 in penalties were vacated. The agreement also settles alleged violations atother mines run by the companies in the state. In those cases, the firms will pay $200,649. In March, Genwal pleaded guilty totwo misdemeanor criminal charges related to the accident and paid a $500,000 penalty.12. MSHA IMPACT INSPECTIONSStepping up enforcement at coal mines with alleged violations relating to respirable coal dust, MSHA targeted 13 operations inSeptember under its impact inspection program that the agency contended had a history of respirable dust complianceproblems. The inspections focused on respirable dust and on ventilation and dust control plans. MSHA has added respirabledust compliance to its criteria for impact inspections, thus assuring mines with similar alleged problems will be targeted in thefuture.A total of 82 percent (123) of the 150 citations and 10 orders MSHA wrote during the September sweep were at coal mines.The remaining tickets went to three Metal/Non-Metal (M/NM) mines. During impact inspections in August, 11 Coal and fourM/NM operations received 255 citations, 13 orders and two safeguards. Five of these mines ‒ four in Coal and one in M/NM ‒have received at least five such inspections since the program began after the Upper Big Branch Mine explosion in April 2010.Since then, MSHA has conducted 508 impact inspections and issued 8,950 citations, 875 orders and 38 safeguards.Companies experiencing a large number of violations during impact or regular inspections should seek assistance fromcounsel to assure they don’t end up on MSHA’s potential pattern of violations list or develop a violation history that could leadto steep fines down the road. Contact Brian Hendrixm, Bhendrix@pattonboggs.com or PeterGould, PGould@pattonboggs.com. IV. CHEMICAL SAFETY BOARD13. EPA IG AUDITING CSB’S INVESTIGATIVE PROCESSEPA’s Office of Inspector General (OIG) is undertaking an audit of the Chemical Safety Board’s (CSB) investigative processwith the aim of helping the board identify areas for improvement. A letter to board Chairman Rafael Moure-Eraso on October17 spelled out the objective and scope of the project along with responsibilities of the two government entities. In thecorrespondence, OIG asked for several sets of data by October 25, including Board-approved current or final work plans for sixinvestigations CSB has undertaken, and the Board’s system for measuring actual performance and promoting accountability in Page 6 of 11
    • its investigative process. No timetable was given for completion of the effort.14. CSB’s MOURE-ERASO: COMBUSTIBLE DUST STANDARD NEEDEDExpressing frustration with the lack of action to control combustible dust hazards, CSB Chairman Rafael Moure-Eraso urgedthe International Code Council (ICC) to adopt a Board recommendation that would strengthen adherence to processes andprocedures designed to prevent explosions from combustible dust. Speaking at the ICC’s 10th annual conference in October,Moure-Eraso appealed for ICC ratification of a CSB recommendation. The Board’s proposal seeks revision of the InternationalFire Code to require mandatory compliance with and enforcement of standards of the National Fire Protection Association(NFPA), including NFPA 484. “Such a change on dust has the potential of saving many lives in the jurisdictions that wouldadopt and enforce it,” he said.Moure-Eraso pointed out that CSB issued a combustible dust hazard study in 2006 that identified 281 dust fires and explosionsbetween 1980 and 2005 that had resulted in 119 fatalities and 718 injuries. Metal dusts fueled 20 percent of the accidents. Hesaid CSB subsequently asked OSHA to issue a combustible dust standard; however, aside from publishing an advanced noticeof proposal rulemaking in 2009, holding stakeholder meetings and initiating a combustible dust national emphasis program, nofinal rule has been released.15. ROUNDUP OF CURRENT CSB INVESTIGATIONSAt least six incidents are currently under investigation by CSB. A fire in August at a Chevron refinery in Richmond, CA involvedthe release of a flammable vapor. Although there were no fatalities, CSB labeled the accident “one of the most serious U.S.refinery incidents in recent years.” Other investigations underway are at an October 2012 US Ink factory in East Rutherford, NJ,with no fatalities; Donaldson Enterprises, Inc., Waikele, HI, fireworks storage facility explosion in April 2011, five fatalities;Carbide Industries, Louisville, KY, fire and explosion in March 2011, two fatalities; A.L. Solutions, New Cumberland, WV,titanium powder dust explosion in October 2010, three fatalities; and Millard Refrigerated Services, Theodore, AL, anhydrousammonia release in August 2010, no fatalities;. V. LITIGATION/COURTS16. KENTUCKY MAN GETS THREE YEARS IN MINER TRAINING SCAMA man who passed himself off as a certified mine instructor and lied to MSHA investigators has been sentenced to three yearsin federal prison. Paul Jason Arnett, 21, was handed a sentence a year longer than the maximum recommended at a districtcourt proceeding in Kentucky in September. Court records show that Arnett falsely presented himself as a certified mineinstructor and fraudulently certified on MSHA training forms in June 2011 that he had provided new miner training. Arnett notonly lacked the necessary certification, he never provided training. According to his plea agreement, when two MSHA agentsquestioned him during the investigation, Arnett told them he was Paul Arnett’s brother and offered to help them find him.17. THREE SENTENCED TO PRISON FOR ASBESTOS VIOLATIONSThree Tennessee men have been sentenced to a combined total of more than seven years in prison for Clean Air Act and Page 7 of 11
    • other violations related to a demolition project. The men were associated with Watkins Street Project, which was hired todemolish a former textile mill in East Chattanooga that contained asbestos. According to EPA, the company hired homelessand untrained workers to do the asbestos removal work. During the project, which began in 2004 and extended for about 18months, asbestos-containing dust was released into the air, contaminating the workplace, area homes and a daycare center.Besides the prison sentences, one of the three men must pay a $20,000 penalty and the company, $58,000 in fines andrestitution. The men, who have indicated they will appeal, are expected to begin their prison terms November 16.18. LOUISIANA WOMAN INDICTED FOR IMPERSONATING INSPECTORA Mississippi woman allegedly seeking to fraudulently exploit the 2010 Deepwater Horizon disaster for personal gain wasindicted in New Orleans in September. Connie M. Knight, 46, was charged with impersonating an OSHA inspector and trainer,creating and possessing false federal identification papers, and transferring false documents to employees. A former Louisianaresident, Knight is alleged to have defrauded more than a thousand individuals in the state, mostly immigrants from SoutheastAsia, over a five-month period in 2010 by convincing them to attend her hazardous waste training courses so they could legallydo cleanup work. If convicted on all 22 counts, she could spend the rest of her life in prison and owe millions in fines.19. MSHA MEDICAL RECORDS DEMAND RAISES CONSTITUTIONAL ISSUESMSHA’s demand in 2010 for mine operators to disclose confidential medical and business records led to a court challengealleging that it violated the Fourth Amendment prohibition against warrantless search and seizure as well as due processprotections afforded by the Fifth Amendment. The agency sought the documents from 39 mines as part of an audit todetermine compliance with Part 50 injury and illness reporting requirements.The constitutionality of the agency’s records request was the central argument of an amicus curiae brief filed in a federal circuitcourt of appeals in September by Patton Boggs on behalf of the National Mining Association (NMA) in support of mineoperators Big Ridge, Inc. and Peabody Midwest Mining, LLC. The operators went to court after MSHA cited them for refusing toturn over the documents. The case ended up before the Commission, which in a split vote, sided with the government, leadingthe operators to appeal to the Seventh Circuit.MSHA’s initial request for documents included “worker compensation filings, FMLA [Family and Medical Leave Act] releasesand records, sick leave records, tests including drug test studies, medical reports, treatment notes, fact sheets, and transferrecords, etc.” covering the period from July 2009 through June 2010. MSHA subsequently revised the scope of its request, butit remained legally questionable.Repeatedly citing case law to make its points, NMA argued that mine operators have a legitimate expectation of privacy inbusiness records that the Mine Act does not require them to maintain. For those records, MSHA must go to court and make itscase for a warrant. Alternatively, the agency can try and get what it wants through notice-and-comment rulemaking, a key pointmade by dissenting Commissioner Michael Duffy.Both MSHA and the Commission cited Sec. 103(h) of the Mine Act to support their claims of MSHA’s warrantless right ofrecords access. The provision requires operators to establish and maintain records, make reports and provide information thatMSHA “may reasonably require from time to time.” But NMA argued that the Supreme Court said authority to provide suchinformation goes away if it leads “‘to unchecked discretion of Government officers’ not governed by ‘an administrative plancontaining specific neutral criteria.’ˮ The government’s interpretation of the provision and its implementing regulations fail “thisthreshold test,” NMA argued. “At that point a warrantless search becomes unreasonable,” it said. Page 8 of 11
    • MSHA imposed daily penalties on the operators when they refused to comply. NMA argued that these fines violate FifthAmendment due process protections because fines rapidly accumulate and have the effect of discouraging operators fromgoing to court. “MSHA’s scheme is calculated to deter an operator from exercising its Fifth Amendment right to judicial reviewto protect its Fourth Amendment right to be free from unreasonable intrusions on its privacy,” NMA wrote.NMA argued that MSHA’s document demands also violate Sec. 103(e), which prohibits information requests from becoming anunreasonable burden on operators, especially small ones, and expressly goes against protections against government-imposed paperwork requirements enshrined in the Paperwork Reduction Act.The Seventh Circuit has yet to issue its opinion on this case. Contact Hchajet@patttonboggs.com for further information.20. APPEALS COURT RULES ON MSHA TEMPORARY REINSTATEMENTA miner’s temporary reinstatement benefits stop once the Federal Mine Safety and Health Review Commission orders an endto a discrimination proceeding. The ruling last month by the US Seventh Circuit Court of Appeals is a defeat for MSHA, whichhad argued that reinstatement continues even after its legal proceeding ends, if the miner brings the case on his own.Temporary reinstatement usually is economic and allows the miner to receive pay and benefits while his or her claim of safetydiscrimination is investigated and prosecuted by MSHA.Sec. 105(c) of the Mine Act is designed to protect miners who allege they have been illegally fired or otherwise discriminatedagainst for making safety complaints. Under the provision, a fired miner claiming safety discrimination may request temporaryreinstatement while the claim is being reviewed. If MSHA determines the miner’s complaint is not frivolous, and theCommission concurs, temporary reinstatement is granted while the agency conducts a more in-depth investigation of theminer’s allegation. The agency can then prosecute the complaint before the Commission if it concludes a Sec. 105(c) violationmay have occurred. Temporary reinstatement continues throughout this proceeding.However, if MSHA decides not to prosecute the claim and the Commission dissolves the proceeding, the matter may not endthere. That is because the miner still has recourse under Mine Act Sec. 105(c)(3) to revive the complaint by taking it directly tothe Commission. However, the circuit court decision means that the miner will not have the benefit of temporary reinstatementduring his direct prosecution of the claim.21. KENTUCKY MINE OPERATOR, SUPERVISORS PLEAD GUILTYA Kentucky coal mine operator and two of its supervisors have pled guilty to willful safety violations in the wake of a miner’sdeath. On November 7, Manalapan Mining Co., Inc. entered a plea in U.S. District Court on a charge that it directed miners touse equipment that lacked canopies or cabs to protect them from roof or rib collapses. The operator could be fined as much as$250,000. A superintendent at the P-1 Mine and the mine’s operations manager plead guilty to a similar misdemeanor chargeand face up to a year in prison. The superintendent also pled guilty to signing off on safety inspection reports that failed todocument hazardous conditions, a felony punishable by up to five years in prison. Sentencing is set for March. Previously, aforeman at the mine pled guilty to failing to identify or correct hazardous conditions and will be sentenced in January. Thecharges stem from the death of a miner in June 2011 in a rib collapse. The operator also faces $594,100 in MSHA fines.22. $7.3 MILLION AWARD IN POPCORN LUNG CASE Page 9 of 11
    • A Colorado man who consumed two to three bags of microwave popcorn every day for a decade has won a $7.3 millionjudgment against popcorn maker Glister-Mary Lee, supermarket chain Kroger and its Dillon Cos. subsidiary. Wayne Watsonwas diagnosed with “popcorn lung,” damage to the airways caused by exposure to diacetyl, a chemical contained in artificialbutter flavoring on the popcorn. A federal jury awarded $2.3 million in actual damages and $5 million in punitive damages. Oneof the defendants has said it will appeal.23. CONSTRUCTION WORKER AWARDED $2 MILLION AFTER ACCIDENTAn employee of a roofing firm was awarded just over $2 million as a result of a scaffolding collapse at a construction site inNew York that reportedly left him with traumatic brain injuries. The award went against LeChase Construction Services, LLC ofRochester, which was providing project management services on a project in June 2010 at Binghamton University. The 42-year-old employee of Apple Roofing Co. and five others were injured when a bridge connecting two platform scaffoldscollapsed, plunging them five stories to the ground. OSHA subsequently fined Apple $12,300 and the scaffolding contractor,CFI Sales and Service, $2,100. Fines for both companies were lowered on appeal.24. ROUNDUP OF OSHA WHISTLEBLOWER CASESOSHA has filed lawsuits on behalf of six workers who alleged they had been subjected to retaliation for filing whistleblowercomplaints. New York-based Champagne Demolition, LLC was charged with allegedly firing an employee who reportedimproper asbestos removal practices at a high school. A dentist in Maine faces a charge of retaliating against two hygienistswho complained about what they believed were lapses in infection control, a charge the dentist has denied. A judge orderedLOTO Services, Inc. in Florida and its owner to pay $34,186 to a former employee who had complained about a rodentproblem. Businesses in Connecticut, Parker Medical and a dental practice, were ordered to pay back wages to employees.Parker, which makes x-ray devices, agreed to pay $12,000, while the dentist has consented to pay $24,630 in back wages and$5,000 for emotional distress to an employee who had complained about extremely cold working conditions.25. $48 MILLION VERDICT TOPS MESOTHELIOMA AWARDSIn the largest mesothelioma award in California this year, a Los Angeles County jury awarded a mesothelioma victim and hisfamily $48 million against several firms, including at least two cement companies. A total of $23.9 million was handed out inthree other cases to the families of workers who died from the asbestos-related disease. The biggest of these payouts, $17million, was awarded by a Pennsylvania jury on behalf of two victims, who had worked with asbestos-containing valves andgaskets. The widow of a 78-year-old man who had worked for the Merchant Marines for 35 years won a $3.9 million judgmentin a Cleveland, OH courtroom. A New York jury awarded $3 million to the family of a deceased pipefitter. You may receive INSIGHTS from other people, which often occurs. To SUBSCRIBE, change your address or to change your e-mail format, simply click here. To UNSUBSCRIBE or OPT-OUT, simply e-mail INSIGHTS@pattonboggs.com with "UNSUBSCRIBE" in the subject line. To correspond with INSIGHTS, send your message to INSIGHTS@pattonboggs.com. Thanks. Page 10 of 11
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