Occupational Safety and Health NewsAlert

COMMISSION ESTABLISHES TEST TO DETERMINE WHETHER THIRD-PARTY AUDITS ARE PROTECTED BY PRIVILEGE

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 21
©2011 Jackson Kelly PLLC

 

          In Secretary of Labor v. Delek Refining, Ltd., OSHRC No. 09-0844 (July 11, 2011), the Occupational Safety and Health Review Commission (“Commission”) established a three-part test to determine whether the attorney-client privilege applies to third-party communications.  This was the first time the Commission had addressed the issue.  The case arose after an explosion occurred at a facility owned and operated by Delek Refining, Ltd. (“Delek”).  OSHA inspected the facility after the explosion and issued two citations, one serious and one willful, alleging that Delek violated the process safety management (“PSM”) standard.

ALJ INVALIDATES SAFEGUARD FOR FAILURE TO IDENTIFY HAZARD

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 20
©2011 Jackson Kelly PLLC

 

     In a recent decision, a Review Commission Administrative Law Judge invalidated a safeguard at an underground coal mine because it did not identify with specificity the nature of the hazard to which it was addressed.  In Big Ridge Inc., Docket Nos. LAKE 2008-436 et al. (ALJ Melick Sept. 8, 2011), Judge Melick upheld the mine operator’s challenge to the safeguard and vacated the resulting citation. 

MSHA’S PROPOSED RULE REGARDING PROXIMITY DETECTION

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 19
©2011 Jackson Kelly PLLC

 

     On Wednesday, August 31, 2011, the Federal Mine Safety and Health Administration (“MSHA”) published a proposed rule at 30 C.F.R. § 75.1732 requiring continuous mining machines used in underground coal mines to be equipped with proximity detection systems.  76 Fed. Reg. 54163.  The proposed rule applies to all continuous mining machines, except full-face continuous mining machines. Proximity detection refers to technology that uses electronic sensors on mining machinery to detect the presence of personnel or other machinery within a certain distance.  These systems can be programmed to send warning signals and stop machine movement when the programmed areas are breached. 

 

ALJ HOLDS THAT METHANE LEVELS EXCEEDING 1.0% AT AUXILIARY FANS ARE NOT PER SE VIOLATIONS OF 30 C.F.R. § 75.331(c)

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 18
©2011 Jackson Kelly PLLC

        On August 2, 2011, Administrative Law Judge Richard W. Manning issued a decision vacating two § 104(a) citations alleging violations of 30 C.F.R. § 75.331(c) in Bowie Resources LLC, Docket No. WEST 2009-898. 

 

ALJ FINDS THAT HISTORY OF § 75.400 VIOLATIONS IS NOT SUFFICIENT TO SUPPORT “FLAGRANT” DESIGNATION

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 17
©2011 Jackson Kelly PLLC

 

           On July 27, 2011, Administrative Law Judge Richard W. Manning issued a decision in Bowie Resources LLC,  Docket No.  WEST  2008-814, a case arising from the issuance of a § 104(d)(2) order alleging  a  violation  of  30 C.F.R. § 75.400.  The  Secretary  designated  the  alleged  violation  as “flagrant,” under § 110(b)(2) of the Mine Act.   Judge Manning held that no flagrant violation occurred. 

 

ADMINISTRATIVE LAW JUDGE DISMISSES CIVIL PENALTY PROCEEDINGS DUE TO SECRETARY’S LATE FILING OF THE PETITIONS FOR ASSESSMENT UNDER THE MINE ACT

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 16
©2011 Jackson Kelly PLLC

 

            On August 22, 2011, Administrative Law Judge Thomas P. McCarthy granted a coal mine operator’s motions to dismiss seven Civil Penalty Proceedings due to the Secretary of Labor’s failure to timely file the petitions for assessment. Secretary of Labor v. Long Branch Energy, Civil Penalty Proceedings Docket Nos. WEVA 2010-467; 652; 466; 653; 654; 2009-1788.  In each case, the operator had filed a timely penalty contest to the proposed penalties pursuant to Federal Mine Safety and Health Review Commission (“Commission”) Rule 26.  The Secretary failed to file the petitions for civil penalties within the required forty-five days of receipt of the operator’s contests and did not file a request for an extension of time in which to do so.  The Secretary’s filings ranged between seven and eleven months late.  Judge McCarthy ordered that the motions to dismiss be argued orally before him in June, after limited discovery regarding the Secretary’s proffered excuses for late filing. 

 

FEDERAL DISTRICT COURT UPHOLDS RIGHT OF UNDERGROUND COAL MINE OPERATORS TO CHALLENGE MSHA PLAN APPROVAL PROCESS

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 15
©2011 Jackson Kelly PLLC

        Underground coal mine operators are required to develop, and have approved by MSHA, a number of plans for each mine, including ventilation, roof control, and emergency response plans. These are developed through a process of “negotiation” with MSHA. The question arises frequently as to what happens when MSHA seeks to impose requirements that the operator is unwilling to accept or when MSHA will not accept an operator’s proposed plan provisions. MSHA’s Program Policy Manual sets out a procedure where the operator can ask for a technical citation and then litigate the issue before the Review Commission and its judges. This procedure is cumbersome and generally unsatisfactory.

DOL’S REGULATORY AGENDA INCLUDES AMBITIOUS PLANS FOR OSHA

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 14
©2011 Jackson Kelly PLLC

      

        The Department of Labor (“DOL”) recently released its semi-annual Regulatory Agenda, and it includes numerous proposed items for the Occupational Safety and Health Administration (“OSHA”).  Key items for each agency include the following:

DOL’S REGULATORY AGENDA INCLUDES AMBITIOUS PLANS FOR MSHA

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 13
©2011 Jackson Kelly PLLC 

 

          The Department of Labor (“DOL”) recently released its semi-annual Regulatory Agenda, and it includes numerous proposed items for the Mine Safety and Health Administration (“MSHA”).  Key items for the agency include the following:

OSHA PROPOSES CHANGES TO ITS REPORTING REQUIREMENTS

For clients and friends of Jackson Kelly PLLC
Volume 7, Number 12
©2011 Jackson Kelly PLLC

 

          On Wednesday June 22, 2011, the Occupational Safety and Health Administration (“OSHA”) announced in a Notice of Proposed Rulemaking, an update and revision of two aspects of the agency’s recordkeeping and reporting requirements (29 C.F.R. § 1904) for work-related injuries and illnesses. 76 Fed. Reg. 36414 (June 22, 2011).  The most significant change involves the eight hour reporting requirement for serious injuries and fatalities under § 1904.39.  The other involves the manner by which OSHA determines partially exempt industries from the recordkeeping standards under § 1904.2.