1. INSIGHTS
Please provide us with your
comments and forward INSIGHTS
to anyone that might be
interested. If you provide us with
email addresses, corrections or For more information go to: http://www.pattonboggs.com or contact Henry
deletions, we will adjust the Chajet(hchajet@pattonboggs.com) at 202.457.6511, Mark
distribution list, or subscribe Savit (msavit@pattonboggs.com) at 303-830-1776, or Brian
online. 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

2. I. ADMINISTRATION/CONGRESS
1. SEQUESTRATION COULD HAVE BIG IMPACT ON AGENCIES
Federal 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 a
way to reduce the nation’s deficit burden. The cuts became more likely after Congress failed to agree on a deficit reduction
plan last year. As part of legislation the lawmakers approved to raise the federal debt limit, if no plan is passed, sequestration
will 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 be
out 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 another
solution. 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 COMING
In the face of strong criticism by the business community that regulations were holding back the economy and job creation, in
2011 the White House began putting the brakes on numerous initiatives that were working their way through the regulatory
process. 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, standards
improvement 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 biggest
obstacles 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 the
current permissible exposure limit. The agency has not yet sent a final rule to the White House for review, but it is widely
believed the rule is done and merely awaits a more favorable political climate. However, like the silica rule, it faces hostility in
Congress. In 2012 budget language, Congress prohibited MSHA from implementing or enforcing a respirable dust rule. It went
even further in 2013 budget language by refusing to permit MSHA to continue development of the rule. However, the agency’s
2013 appropriation has not been passed; MSHA and all other federal agencies continue to work at 2012 funding levels under a
continuing resolution.
II. AGENCIES
3. OSHA LAUNCHES WHISTLEBLOWER PILOT PROGRAM
In October, OSHA announced it was setting in motion a pilot program that would allow complainants who file claims under the
agency’s whistleblower protection program to attempt to resolve their issues with their employers through an alternative dispute
resolution (ADR) process. The program is being implemented in two OSHA regions and offers two voluntary methods of
dispute resolution: early resolution and mediation. In a press release, OSHA said that when a whistleblower complaint is filed in
Page 2 of 11

3. one of the pilot regions, the parties will be notified of their ADR options and may work through an OSHA regional ADR
coordinator to use these methods.
The program will be piloted in areas served by regional offices in Chicago and San Francisco. The Chicago office serves
Illinois, Indiana, Michigan, Minnesota, Wisconsin and Ohio. San Francisco serves California, Arizona, Nevada, Hawaii and
other Pacific islands.
4. FATALITIES, INJURIES DECLINE IN 2011
A total of 4,609 workers died on the job nationwide in 2011 compared to 4,690 in 2010, according to preliminary data released
recently 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 and
242 suicides. Fatal work injuries in construction declined for the fifth year in a row but rose in private truck transportation for the
second 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 to
whole 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 lost
rate (1.78) and all-injury rate (2.73) also were the lowest ever in the industry.
5. IG CALLS FOR CHANGES TO OSHA TARGETING PROGRAM
OSHA should expand its site-specific targeting (SST) program to include employers with 11-19 workers, add some groups
currently exempted from the program and encourage the states to do more, the Labor Department’s Office of Inspector
General (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 fewer
than 20 workers. OIG noted that 26 percent of all worksites with injury and illness rates high enough to have been included in
the program were exempted because they had fewer than 20 workers, were in states that did not participate in the program, or
were in industry groups not surveyed. OIG also found that worksites targeted by OSHA inspectors were almost four times as
likely 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 and
complete inspections of the highest-risk worksites to ensure effective and efficient use of the program, complete an evaluation
of 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 would
require policy changes that OSHA cannot control or could weaken other OSHA enforcement efforts. For instance, he said
expanding inspections to include businesses with 11 to 19 workers could mean some large employers that are more likely to
have violations would go uninspected. Michaels also pointed out that many employers not inspected under SST receive visits
under OSHA emphasis programs.
Michaels said OSHA is looking at requiring more industries to report injury rates. A 2010 proposal would add 52 industry
groups to those now required to report their industry and illness rates. However, that initiative has never made it past the
proposed rulemaking stage. The Assistant Secretary also commented that OSHA cannot force states to participate.
Page 3 of 11

4. 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 industries
that historically have high injury and illness rates. OIG’s audit covered SST program efforts from August 2010 through
September 2011.
6. MSHA ISSUES NEW GUARDING GUIDE
MSHA has released a second guidance document dealing with machine guarding in the Metal/Non-Metal (M/NM) sector. At a
stakeholders’ meeting in October, the new guide was described as a sequel to one dealing with conveyor belt guarding that
was released two years ago. The latest document covers machinery other than conveyor belts and, as was the case with the
initial 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-cited
violations at non-metal surface mines for many years and remains so. However, according to the agency, guarding citations
dropped 39 percent after the conveyor belt guarding guidance was released in June 2010. MSHA chief Joe Main sees that
trend 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 2010
document in that comparisons are presented of compliant vs. non-compliant guards. Machinery covered includes drive and
power transmission components; crushers and screens; rotating, packaging and palletizing equipment; power tools and
auxiliary equipment.
MSHA’s guarding standards are intended to protect miners from deliberate, purposeful work-related actions such as during
inspections, testing, maintenance, lubrication, cleaning, troubleshooting and adjustments. However, they also are aimed at
protecting 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 alleged
non-compliance which are now deemed compliant in the new guide. However, operators who have been cited for alleged
violations that the new guide declares are okay should consider contesting them.
III. ENFORCEMENT
7. OSHA ENFORCEMENT POLICY IN RESIDENTIAL CONSTRUCTION
For the second time this year, OSHA has extended the deadline to end temporary enforcement measures associated with its
directive in residential construction to prevent falls, which are the No. 1 cause of workplace deaths in that sector. The extension
will 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 been
in effect since 1999. In conjunction with the directive, to ease the transition the agency also put in place general policy
guidance on enforcement and compliance assistance. The directive requires compliance with 29 CFR 1926.501(b)(13), which
requires fall protection for workers engaged in residential construction at heights of six feet or more. However, if an employer
can demonstrate infeasibility or that the mandated fall protection presents a greater hazard, it may implement a fall protection
plan under 1926.502(k).
Temporary enforcement measures accompanying the policy change consist of priority free, on-site compliance assistance;
Page 4 of 11

5. penalty reductions; extended abatement dates; measures to ensure consistency; and increased outreach. These measures
originally had been set to expire March 15, were then extended until September 15, and now extended yet again. The agency
said that since October 1, 2011, it has performed more than 2,500 on-site visits and conducted more than 800 outreach
activities.
8. FIRMS PAY UP IN WHISTLEBLOWER CASES
Three employers who fired employees after they filed complaints with OSHA have been ordered to reinstate the workers and
pay back wages and damages. A pilot will be reinstated and paid more than $500,000 after investigators determined he was
illegally terminated 3½ years ago from Northern Illinois Flight Center. He was fired after complaining to the FAA about alleged
violations in the Center’s pilot certification process. In Ohio, Dana Holding Corp. was ordered to pay just under $275,000 after
a financial analyst was let go in 2009 for raising concerns about alleged inaccuracies in a company database that could be
reflected 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 his
service 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 SETTLEMENT
Carpet manufacturer Mohawk Industries, Inc. will implement procedures to prevent combustible dust explosions under a
settlement agreement with OSHA. The agency cited Mohawk in June 2011 for six alleged violations at the company’s facility in
Ohio, including one involving dust. The agreement requires the Georgia-based company to abate alleged fire hazards at the
facility. In addition, Mohawk will hire a fire protection engineer to assess potential fire and explosion hazards at all four of its
U.S.-based carpet pad facilities, implement the engineer’s recommendations, develop and implement procedures for periodic
cleanup and removal of accumulations of polymer foam dust, provide combustible dust and emergency evacuation training to
employees, and perform monthly inspections of fire-suppression sprinkler systems. The company’s other carpet pad facilities
are in Georgia, Texas and Connecticut.
10. REFINERIES HIT WITH BIG PENALTIES AFTER INCIDENTS
A one-two punch by government regulators has resulted in fines totaling more than a half million dollars against Sinclair
Wyoming Refinery Co.’s refinery. Federal and state OSHA authorities slapped the company with $215,000 in total fines after a
flash 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 for
the company’s alleged failure to meet all the terms of a 2008 consent decree affecting the company’s two refineries in
Wyoming and another in Oklahoma. EPA’s fine followed an out-of-court settlement the company reached with the agency in
August in which the Utah-based refiner agreed to pay more than $3.8 million in fines related to the lack of adequate pollution
controls. 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 agency
over alleged safety violations after an explosion left two dead and two injured. The blast in March 2010 occurred when a
contract welder working on top of a storage tank ignited vapors from flammable liquids inside the tank.
Page 5 of 11

6. 11. $950,000 SETTLEMENT IN CRANDALL CANYON MINE ACCIDENT
The Crandall Canyon Utah coal mine operator agreed to pay $949,351 to settle civil penalties MSHA levied following an
accident in 2007 that took the lives of . six miners, followed by the deaths of three additional personnel, including an MSHA
inspector, during the recovery effort.
Mine operator Genwal Resources, Inc. and MSHA separately announced the settlement in late September. Press releases
from the two sides reflected continuing disagreement about who was to blame for the tragedy. “In this settlement, Genwal
Resources and Andalex Resources have acknowledged responsibility for the failures that led to the tragedy at Crandall
Canyon,” said Solicitor of Labor M. Patricia Smith. Genwal countered by saying in its statement that the mine "was safe, a
belief 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 at
other mines run by the companies in the state. In those cases, the firms will pay $200,649. In March, Genwal pleaded guilty to
two misdemeanor criminal charges related to the accident and paid a $500,000 penalty.
12. MSHA IMPACT INSPECTIONS
Stepping up enforcement at coal mines with alleged violations relating to respirable coal dust, MSHA targeted 13 operations in
September under its impact inspection program that the agency contended had a history of respirable dust compliance
problems. The inspections focused on respirable dust and on ventilation and dust control plans. MSHA has added respirable
dust compliance to its criteria for impact inspections, thus assuring mines with similar alleged problems will be targeted in the
future.
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 four
M/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 from
counsel to assure they don’t end up on MSHA’s potential pattern of violations list or develop a violation history that could lead
to steep fines down the road. Contact Brian Hendrixm, Bhendrix@pattonboggs.com or Peter
Gould, PGould@pattonboggs.com.
IV. CHEMICAL SAFETY BOARD
13. EPA IG AUDITING CSB’S INVESTIGATIVE PROCESS
EPA’s Office of Inspector General (OIG) is undertaking an audit of the Chemical Safety Board’s (CSB) investigative process
with the aim of helping the board identify areas for improvement. A letter to board Chairman Rafael Moure-Eraso on October
17 spelled out the objective and scope of the project along with responsibilities of the two government entities. In the
correspondence, OIG asked for several sets of data by October 25, including Board-approved current or final work plans for six
investigations CSB has undertaken, and the Board’s system for measuring actual performance and promoting accountability in
Page 6 of 11

7. its investigative process. No timetable was given for completion of the effort.
14. CSB’s MOURE-ERASO: COMBUSTIBLE DUST STANDARD NEEDED
Expressing frustration with the lack of action to control combustible dust hazards, CSB Chairman Rafael Moure-Eraso urged
the International Code Council (ICC) to adopt a Board recommendation that would strengthen adherence to processes and
procedures 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 International
Fire 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 would
adopt 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 explosions
between 1980 and 2005 that had resulted in 119 fatalities and 718 injuries. Metal dusts fueled 20 percent of the accidents. He
said CSB subsequently asked OSHA to issue a combustible dust standard; however, aside from publishing an advanced notice
of proposal rulemaking in 2009, holding stakeholder meetings and initiating a combustible dust national emphasis program, no
final rule has been released.
15. ROUNDUP OF CURRENT CSB INVESTIGATIONS
At least six incidents are currently under investigation by CSB. A fire in August at a Chevron refinery in Richmond, CA involved
the 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, anhydrous
ammonia release in August 2010, no fatalities;.
V. LITIGATION/COURTS
16. KENTUCKY MAN GETS THREE YEARS IN MINER TRAINING SCAM
A man who passed himself off as a certified mine instructor and lied to MSHA investigators has been sentenced to three years
in federal prison. Paul Jason Arnett, 21, was handed a sentence a year longer than the maximum recommended at a district
court proceeding in Kentucky in September. Court records show that Arnett falsely presented himself as a certified mine
instructor and fraudulently certified on MSHA training forms in June 2011 that he had provided new miner training. Arnett not
only lacked the necessary certification, he never provided training. According to his plea agreement, when two MSHA agents
questioned 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 VIOLATIONS
Three 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

8. other violations related to a demolition project. The men were associated with Watkins Street Project, which was hired to
demolish a former textile mill in East Chattanooga that contained asbestos. According to EPA, the company hired homeless
and untrained workers to do the asbestos removal work. During the project, which began in 2004 and extended for about 18
months, 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 and
restitution. The men, who have indicated they will appeal, are expected to begin their prison terms November 16.
18. LOUISIANA WOMAN INDICTED FOR IMPERSONATING INSPECTOR
A Mississippi woman allegedly seeking to fraudulently exploit the 2010 Deepwater Horizon disaster for personal gain was
indicted 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 Louisiana
resident, Knight is alleged to have defrauded more than a thousand individuals in the state, mostly immigrants from Southeast
Asia, over a five-month period in 2010 by convincing them to attend her hazardous waste training courses so they could legally
do 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 ISSUES
MSHA’s demand in 2010 for mine operators to disclose confidential medical and business records led to a court challenge
alleging that it violated the Fourth Amendment prohibition against warrantless search and seizure as well as due process
protections afforded by the Fifth Amendment. The agency sought the documents from 39 mines as part of an audit to
determine 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 circuit
court of appeals in September by Patton Boggs on behalf of the National Mining Association (NMA) in support of mine
operators Big Ridge, Inc. and Peabody Midwest Mining, LLC. The operators went to court after MSHA cited them for refusing to
turn over the documents. The case ended up before the Commission, which in a split vote, sided with the government, leading
the operators to appeal to the Seventh Circuit.
MSHA’s initial request for documents included “worker compensation filings, FMLA [Family and Medical Leave Act] releases
and records, sick leave records, tests including drug test studies, medical reports, treatment notes, fact sheets, and transfer
records, etc.” covering the period from July 2009 through June 2010. MSHA subsequently revised the scope of its request, but
it remained legally questionable.
Repeatedly citing case law to make its points, NMA argued that mine operators have a legitimate expectation of privacy in
business records that the Mine Act does not require them to maintain. For those records, MSHA must go to court and make its
case for a warrant. Alternatively, the agency can try and get what it wants through notice-and-comment rulemaking, a key point
made 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 of
records access. The provision requires operators to establish and maintain records, make reports and provide information that
MSHA “may reasonably require from time to time.” But NMA argued that the Supreme Court said authority to provide such
information goes away if it leads “‘to unchecked discretion of Government officers’ not governed by ‘an administrative plan
containing specific neutral criteria.’ˮ The government’s interpretation of the provision and its implementing regulations fail “this
threshold test,” NMA argued. “At that point a warrantless search becomes unreasonable,” it said.
Page 8 of 11

9. MSHA imposed daily penalties on the operators when they refused to comply. NMA argued that these fines violate Fifth
Amendment due process protections because fines rapidly accumulate and have the effect of discouraging operators from
going to court. “MSHA’s scheme is calculated to deter an operator from exercising its Fifth Amendment right to judicial review
to 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 an
unreasonable 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 REINSTATEMENT
A miner’s temporary reinstatement benefits stop once the Federal Mine Safety and Health Review Commission orders an end
to a discrimination proceeding. The ruling last month by the US Seventh Circuit Court of Appeals is a defeat for MSHA, which
had 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 safety
discrimination 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 discriminated
against for making safety complaints. Under the provision, a fired miner claiming safety discrimination may request temporary
reinstatement while the claim is being reviewed. If MSHA determines the miner’s complaint is not frivolous, and the
Commission concurs, temporary reinstatement is granted while the agency conducts a more in-depth investigation of the
miner’s allegation. The agency can then prosecute the complaint before the Commission if it concludes a Sec. 105(c) violation
may 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 end
there. That is because the miner still has recourse under Mine Act Sec. 105(c)(3) to revive the complaint by taking it directly to
the Commission. However, the circuit court decision means that the miner will not have the benefit of temporary reinstatement
during his direct prosecution of the claim.
21. KENTUCKY MINE OPERATOR, SUPERVISORS PLEAD GUILTY
A Kentucky coal mine operator and two of its supervisors have pled guilty to willful safety violations in the wake of a miner’s
death. On November 7, Manalapan Mining Co., Inc. entered a plea in U.S. District Court on a charge that it directed miners to
use 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 charge
and face up to a year in prison. The superintendent also pled guilty to signing off on safety inspection reports that failed to
document hazardous conditions, a felony punishable by up to five years in prison. Sentencing is set for March. Previously, a
foreman at the mine pled guilty to failing to identify or correct hazardous conditions and will be sentenced in January. The
charges 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

10. A Colorado man who consumed two to three bags of microwave popcorn every day for a decade has won a $7.3 million
judgment against popcorn maker Glister-Mary Lee, supermarket chain Kroger and its Dillon Cos. subsidiary. Wayne Watson
was diagnosed with “popcorn lung,” damage to the airways caused by exposure to diacetyl, a chemical contained in artificial
butter flavoring on the popcorn. A federal jury awarded $2.3 million in actual damages and $5 million in punitive damages. One
of the defendants has said it will appeal.
23. CONSTRUCTION WORKER AWARDED $2 MILLION AFTER ACCIDENT
An employee of a roofing firm was awarded just over $2 million as a result of a scaffolding collapse at a construction site in
New York that reportedly left him with traumatic brain injuries. The award went against LeChase Construction Services, LLC of
Rochester, 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 scaffolds
collapsed, 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 CASES
OSHA has filed lawsuits on behalf of six workers who alleged they had been subjected to retaliation for filing whistleblower
complaints. New York-based Champagne Demolition, LLC was charged with allegedly firing an employee who reported
improper asbestos removal practices at a high school. A dentist in Maine faces a charge of retaliating against two hygienists
who complained about what they believed were lapses in infection control, a charge the dentist has denied. A judge ordered
LOTO Services, Inc. in Florida and its owner to pay $34,186 to a former employee who had complained about a rodent
problem. 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 AWARDS
In the largest mesothelioma award in California this year, a Los Angeles County jury awarded a mesothelioma victim and his
family $48 million against several firms, including at least two cement companies. A total of $23.9 million was handed out in
three other cases to the families of workers who died from the asbestos-related disease. The biggest of these payouts, $17
million, was awarded by a Pennsylvania jury on behalf of two victims, who had worked with asbestos-containing valves and
gaskets. The widow of a 78-year-old man who had worked for the Merchant Marines for 35 years won a $3.9 million judgment
in 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

11. Page 11 of 11