MAC: Mines and Communities

US Update

Published by MAC on 2006-03-02

US Update

2nd March 2006

The US Occupational Safety and Health Administration (OHSA) has cut allowable exposure to hexavalent chromium by a factor of ten.

A US jury's decision last week, to award punitive damages against the country's biggest paint makers for using lead, has been rejected by a Rhode Island Supreme Court judge. However, it's still likely that the companies will have to pay several billion dollars for "clean up" costs.

US greenhouse gas emissions rose by more than 15% between 1990 and 2004 - and nearly a further 2% in 2004 alone.

The New York Times declares the collusion between the Bush regime and the mining industry to beat the root of an appalling failure to prevent employee health and safety violations.

In another study, by USA TODAY of mine safety records at the Sago mine in West Virginia, it's revealed that the federal inspectorate grossly under-estimated dangers leading up to the disaster of January 2nd 2006.

According to the Mine Safety and Health Administration, more than 80% of safety violations nationwide in 2005 were registered as affecting only one person. It's a tactic which enables companies to minimise their responsiblity for protecting workers.

And, not surprisingly, there are attempts to revive the rejected Asbestos compensation bill.

Workplace Exposure Standard for Hexavalent Chromium Cut Ten-Fold


1st March 2006

The Occupational Safety and Health Administration (OSHA) Monday published a final standard for occupational exposure to hexavalent chromium, a known human carcinogen, in general industry, construction and shipyards. The new standard reduced the allowable exposure by a factor of 10.

The new standard lowers OSHA's permissible exposure limit (PEL) for hexavalent chromium, and for all its compounds, from 52 to 5 micrograms per cubic meter of air as an 8-hour time weighted average.

Approximately 558,000 workers are covered by the provisions of the new standard.

The new standard was published in time to obey an order of the U.S. Third Circuit Court of Appeals which in April 2003 ordered OSHA to promulgate a standard governing workplace exposure to hexavalent chromium.

"OSHA has worked hard to produce a final standard that substantially reduces the significant health risks for employees exposed to hexavalent chromium," said Jonathan Snare, acting assistant secretary for occupational safety and health. "Our new standard protects workers to the extent feasible, while providing employers, especially small employers, adequate time to transition to the new requirements."

The standard also includes provisions relating to preferred methods for controlling exposure, respiratory protection, protective work clothing and equipment, hygiene areas and practices, medical surveillance, hazard communication and recordkeeping.

Hexavalent chromium compounds are widely used in the chemical industry as ingredients and catalysts in pigments, metal plating and chemical synthesis. Hexavalent chromium can also be produced when welding on stainless steel or some painted surfaces.

The major health effects associated with exposure to hexavalent chromium include lung cancer, nasal septum ulcerations and perforations, skin ulcerations, and allergic and irritant contact dermatitis.

The new standard recognizes that, given available technology, the lowest level employers involved in aerospace painting operations of whole aircraft or large aircraft parts can reach through feasible engineering and work practice controls is 25 µg/m³. For these types of aerospace painting, OSHA requires the use of engineering and work practice controls to reduce exposures to 25 µg/m³, and allows the supplemental use of respirators to be used to achieve the PEL.

Employers are given a 90 day transition period to familiarize themselves with the technologies and practices needed for compliance.

Start-up date for all provisions, except engineering controls is 180 days from the effective date, and one year for employers with fewer than 20 employees. For more information, visit

Damages Denied in Landmark US Lead Paint Case

by PlanetArk

1st March 2006

PROVIDENCE - A judge Tuesday denied punitive damage claims against three US companies in a landmark lead paint case that had been expected to trigger a flurry of similar claims against the industry.

Rhode Island's case could influence court decisions in other states, counties and cities where lead-poisoning lawsuits are pending, and has drawn similarities with multi-billion-dollar judgments against tobacco makers.

The three former lead paint makers -- Sherwin-Williams Co, NL Industries Inc and Millennium Holdings LLC -- were found liable by a jury last week for creating a "public nuisance" and must clean up contaminated paint in the state, which could cost as much as $3 billion. A judge will determine the clean-up cost at a future date.

On top of clean-up costs, state prosecutors had argued that Rhode Island Superior Court Judge Michael Silverstein should allow a jury to set punitive damages.

"This court believes it has no alternative but to deny the punitive damage claims of the state as a matter of law," Silverstein told the court before dismissing the jury.

Rhode Island accused paint manufacturers of covering up the risk of lead paint, especially to children, in their lawsuit filed in 1999, the first to hold paint makers responsible.

"We're disappointed that he took away punitive damages but we're not surprised," Jack McConnell, a lawyer for the state, told reporters. "This case has always been about abating the problem, to rid the state of this nuisance once and for all, and that's what the jury awarded."

The stock price of Sherwin-Williams, the nation's largest paint maker and best known for its Dutch Boy, Krylon and Duron paint brands, shot up 7 percent, or $2.96, to $45.55 on the New York Stock Exchange after the judge's ruling. Shares in NL Industries leapt 4.2 percent.

Before Tuesday, Sherwin-Williams's stock had dropped about 19 percent since the jury gave its verdict on Feb. 22.

Lead paint was banned by the US government in 1978 after studies showed it caused health problems in children, including learning disabilities and permanent brain damage.

But it remains widespread, especially in older homes in the northeastern United States. Rhode Island children routinely test above the national average for blood-lead levels.

Rhode Island authorities say more than 30,000 children were poisoned by lead paint in the state, with an estimated 200,000 to 300,000 homes contaminated by the paint.

The National Paint & Coatings Association, an industry group that represents about 300 paint makers, has expressed confidence that the companies would win an appeal. Its Web site gives details of lead-pigment cases that have taken place in 17 states since the US ban.

"If you read the ruling, it really speaks to the fact that these cases are not really fair and there are better ways to address the problem," said Tom Graves, the association's general counsel. He said the denial of damages "bespeaks why the case at hand is going to be reversible on appeal."

The paint companies deny they are directly responsible, saying landlords, not paint makers, should be held accountable for conditions that expose children to lead.

(Additional reporting by Ben Berkowitz in New York and Karen Jacobs in Atlanta)


U.S. Greenhouse Gas Emissions Up 1.7 Percent in 2004


1st March 2006

Overall U.S. greenhouse gas emissions during 2004 increased by 1.7 percent from the previous year, according to a newly released annual report by the U.S. Environmental Protection Agency (EPA). This increase was due primarily to an increase in carbon dioxide emissions associated with fuel and electricity consumption, the agency said.

The EPA is seeking public comment on the draft report "Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2004." Comments are invited through March 29, 2006.

The EPA prepared the annual report required by the United Nations Framework Convention on Climate Change (UNFCCC) in collaboration with experts from other federal agencies. The report finds that total emissions of the six main greenhouse gases in 2004 were equivalent to 7,075 million metric tons of carbon dioxide.

These gases include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. Emissions of these gases form a layer in the atmosphere, trapping heat from the Sun close to the planet, raising its surface temperature.

Combustion of fossil fuels - coal, oil and gas - was the largest source of emissions, accounting for 80 percent of the total.

Overall, emissions have grown by 15.8 percent from 1990 to 2004, while the U.S. economy has grown by 51 percent over the same period, the EPA reports.

After responding to public comments, the United States will submit the final inventory report to the UNFCCC Secretariat, fulfilling its annual requirement as a party to the international treaty on climate change.

The treaty, ratified by the United States in 1992, sets an overall framework for intergovernmental efforts to tackle the challenge posed by climate change.

The report is available at:

U.S. Is Reducing Safety Penalties for Mine Flaws

by IAN URBINA and ANDREW W. LEHREN / New York Times

2nd March 2006

CRAIGSVILLE, W.Va.In its drive to foster a more cooperative relationship with mining companies, the Bush administration has decreased major fines for safety violations since 2001, and in nearly half the cases, it has not collected the fines, according to a data analysis by The New York Times.

Federal records also show that in the last two years the federal mine safety agency has failed to hand over any delinquent cases to the Treasury Department for further collection efforts, as is supposed to occur after 180 days.

With the deaths of 24 miners in accidents in 2006, the enforcement record of the Mine Safety and Health Administration has come under sharp scrutiny, and the agency is likely to face tough questions about its performance at a Senate oversight hearing on Thursday.

"The Bush administration ushered in this desire to develop cooperative ties between regulators and the mining industry," said Tony Oppegard, a top official at the agency in the Clinton administration. "Safety has certainly suffered as a result."

A spokesman for the agency, Dirk Fillpot, defended its record, pointing out that last year the coal industry had 22 fatalities, the lowest number in its history. "Safety is definitely improving," Mr. Fillpot said.

A spokeswoman for the National Mining Association, Carol Raulston, agreed.

"The agency realized in recent years that you can't browbeat operators into improved safety, and this general approach has worked," Ms. Raulston said. "The tragic events of this year have given everyone pause. But I don't think it means we want to abandon what we have found works."

Federal records show that fatalities across all types of mining have stayed relatively stable. In each of the last three years, 55 to 57 miners have died in all areas of mining. Experts say a long-term decline in coal mine fatalities is in part a result of growing mechanization.

Mr. Fillpot also said delinquent cases had not moved to the Treasury Department since 2003 because of computer problems. He could not say when the problems would be corrected. "Referrals from M.S.H.A. to the Treasury Department have been impacted by technical issues on both ends, which we are working to resolve while maintaining an aggressive record on enforcement and collections," he said.

Although the agency has recently trumpeted Congressional plans to raise the maximum penalties, federal records indicate that few major fines are issued at the maximum level. In 2004, the number of major fines issued at maximum level was one in 10, down from one in 5 in 2003.

Since 2001, the median for penalties that exceed $10,000, described as "major fines," has dropped 13 percent, to $21,800 from $25,000.

Also troubling, critics say, is that fines are regularly reduced in negotiations between mine operators and the agency. From 2001 to 2003, more than two-thirds of all major fines were cut from the original amount that the agency proposed. Most of the more recent cases are enmeshed in appeals, so it is impossible to know whether that trend has continued.

"The agency keeps talking about issuing more fines, but it doesn't matter much," said Bruce Dial, a former inspector for the mine safety agency. "The number of citations means nothing when the citations are small, negotiable and most often uncollected."

Before the January disaster at the Sago Mine near here, where 12 miners died, the operator had been cited 273 times since 2004. None of the fines exceeded $460, roughly one-thousandth of 1 percent of the $110 million net profit reported last year by the current owner of the mine, the International Coal Group.

At a House oversight hearing on Wednesday, agency officials repeatedly cited the frequency of fines against Sago in the year before the accident as proof of aggressive enforcement. Exasperated, Representative Lynn Woolsey, Democrat of California, replied that maybe those fines had little effect because many were for $60. That point set off applause from audience members.

"Most fines are so small that they are seen not as deterrents but as the cost of doing business," said Wes Addington, a lawyer with the Appalachian Citizens Law Center in Prestonsburg, Ky., which handles mine safety cases. Using federal records, Mr. Addington released a study in January indicating that since 1995 nearly a third of the active underground mines in Kentucky had failed to pay their fines.

"Operators know that it's cheaper to pay the fine than to fix the problem," Mr. Addington said. "But they also know the cheapest of all routes is to not pay at all. It's pretty galling."

Larry Williams, who now lives in Craigsville, 50 miles east of Charleston, knows this frustration well. In 2002, he was working with a fellow miner, Gary Martin, in a deep mine near Rupert, 25 miles south of here, when the roof collapsed on them. Mr. Martin died instantly, and Mr. Williams was trapped for more than four hours under several thousand pounds of rock that crushed his pelvis and both legs.

The men had been pillaring, or second mining, which involves extracting the last remaining coal in tunnels by scraping it from the coal pillars used to hold up the roof. This method is considered extremely dangerous. Federal regulations aim to reduce the risk.

In this case, federal investigators found that the regulations were not followed. The operators were fined $165,000. Those fines have not been paid, even though the mine owner, Midland Trail Resources, which did not reply to requests for comment, remains in business, according to state records.

"It makes me mad," said Mr. Williams, 50, who is paralyzed through much of his right side. "One dead and another man's life ruined, and they pay nothing? It just doesn't make sense."

On Feb. 14, Senator Arlen Specter, Republican of Pennsylvania, introduced a measure to raise the maximum penalty that the mine safety agency can assess for failing to eliminate violations that cause death or serious injury, to $500,000, from the current $60,000.

The law would also prohibit administrative law judges from reducing fines for violations deemed flagrant or habitual.

Ellen Smith, editor of Mine Safety and Health News, an independent newsletter that covers the industry, said that although the law was a positive step, one regulation that continued to need attention allowed fines to be lowered for smaller or financially troubled mines.

"The result of that provision is that it helps keep some habitual offenders in business," Ms. Smith said.

Cecil E. Roberts, president of the United Mine Workers of America, said changes in the law were vital but so were changes in the agency. "If you don't have enforcement along with a strong law, then you don't have a law," Mr. Roberts said. "The current agency mentality is to cooperate with mine operators rather than watchdog them, and safety suffers as a result."

Even when Congress passes strong safety laws, the agency can write regulations that work around them. In 2004, for example, after years of pressure from mine operators, regulators wrote a rule that let mines use conveyor belts not just for moving coal but also to draw in fresh air from outside. A law already existed preventing such safety regulations because of concerns that in the event of a fire, the belts would carry flames and deadly gases directly to the work area or vital evacuation routes.

Though the investigation is not complete, many experts say this is probably what occurred at the Aracoma Alma No. 1 Mine in Logan County, W.Va., where a fire left two miners dead on Jan 21.

Mr. Fillpot said his agency was revising the regulations on imposing penalties. He also pointed to civil suits filed by the agency in what he said was an increasing effort to force operators to pay millions of dollars in unpaid penalties.

"You can expect to see more of these types of efforts from us in the coming months," Mr. Fillpot said.

Mr. Williams, the miner who is partly paralyzed, remains skeptical.
"All I know is the roof collapsed only days after a federal inspector looked right at those pillars and saw that the operator was having us do illegal things," he said. "In these mines, laws don't matter."

Ian Urbina reported from Craigsville, W.Va., and Andrew W. Lehren from New York.

Safety fines at mine minimal

by Thomas Frank, USA TODAY

27th February 2006

Federal inspectors routinely concluded that safety violations at the Sago Mine endangered only one person, findings that helped keep fines to a minimum before the disaster that killed 12 miners in January.

A USA TODAY analysis of inspection records shows that inspectors found hundreds of safety and health violations in the West Virginia coal mine. Fines go up - by hundreds and potentially thousands of dollars - if an inspector finds numerous people at risk.

None of the problems found in 2004 and 2005 has been linked to the explosion Jan. 2, which the federal Mine Safety and Health Administration is investigating.

In 90% of Sago's violations in 2004 and 2005, inspectors said one person was endangered, according to a USA TODAY analysis of MSHA inspection reports. The agency declined to discuss the violations, saying they "will be examined" during an internal review of its oversight of Sago before the explosion.


Citations for safety hazards found in the Sago
Mine in 2004 and 2005:
6 Blocked escapeways
1 Chemical smoke
22 Combustible materials
Source: Mine Safety and Health Administration

International Coal Group, which bought Sago last year, improved the mine's safety and reduced injuries, CEO Ben Hatfield has said.

Hatfield told a Capitol Hill hearing in January that all but three of the 208 hazards cited last year had been corrected by Jan. 2.

The federal agency's pattern of finding a single person endangered by most hazards "is the most narrow interpretation of safety law you can take," says former MSHA senior adviser Tony Oppegard. "That's not how the mine act should be interpreted."

Among the violations cited by federal inspectors:

On Aug. 16, 2005, an inspector found a main escape path "obstructed by concrete blocks." On Nov. 8, 2005, an escapeway was "not being maintained in a safe condition to assure passage of anyone." Sago got six citations for blocking escapeways miners use to flee a fire or explosion. Each citation said one miner was endangered. The mine paid $60 fines for two violations. The amounts of the four other fines are being decided.

On Aug. 16, 2005, an inspector found "chemical smoke" being blown toward areas where two mining teams were working. A team typically has eight to 10 miners. The citation said one miner was endangered. A fine is being determined.

Sago was cited for 22 violations from July 2004 to December 2005 for "accumulation of combustible materials" - coal dust and coal chunks that can spread fires and explosions. All 22 violations said one miner was endangered. MSHA fined the mine a total of $1,768 for 17 violations and is deciding fines for the five others.

"If you have coal dust in the air, that becomes part of the explosion," says Robert Ferriter, director of mine safety training at the Colorado School of Mines. "That would certainly affect more than one person. That would affect everybody in the area."

MSHA said 81% of the violations at mines nationwide in 2005 listed one person as endangered. The agency's Citation and Order Writing Handbook directs inspectors to determine "the number of persons who would be expected to be injured if an accident or overexposure occurred as a result of the violation."

Ferriter says, "It's hard for me to envision just one person being exposed if you've got any type of hazard."

US Asbestos Bill Sponsors Seek Signatures for Revote

by PlanetArk, WASHINGTON

27th February 2006

The co-sponsors of legislation to create a $140 billion asbestos victims' compensation fund are trying to gather 60 senators' signatures on a letter asking for another vote on the bill, Senate aides said Friday.

Pennsylvania Republican Arlen Specter and Vermont Democrat Patrick Leahy began circulating the letter this week after Senate Majority Leader Bill Frist demanded pledges of support from at least 60 members -- enough to overcome procedural hurdles -- before bringing the embattled legislation back to the Senate floor.

The bill would remove from the courts the injury claims filed by people sickened from exposure to the fibrous mineral. It would pay the claims instead from a $140 billion fund financed by asbestos defendant companies and their insurers.

The asbestos bill was shelved earlier this month after it failed, 58 to 41, to get the 60 votes needed to clear a budget point of order raised on the Senate floor by a member concerned the proposed fund might end up costing taxpayers money.

The letter being circulated for signatures asks Frist, a Tennessee Republican, to schedule a revote on the budget point of order. Senate aides who spoke about the letter on condition of anonymity said they did not know how many signatures had been collected so far.

"Because this may be our last best chance to enact meaningful asbestos reform, we are hopeful that you share in our sense of urgency to resolve this important unfinished business of the Senate," said the letter, a copy of which was provided to Reuters. However, the document does not say how senators signing it would vote on any possible filibuster of the bill -- a delaying tactic that would also require 60 votes to overcome.

Frist said on Feb. 17 that he wants assurances that 60 senators would vote to end any filibuster, as well as defeat the budget point of order, before bringing the bill back to the Senate floor.

The unusual request from Frist for public assurances reflected the difficulty the bill's sponsors have had building a dependable base of support for the legislation.

Although it has backers in both parties, the bill also has critics that fear the fund will not have enough money, or, alternatively, that it will require too much money from companies paying into the fund. The proposal has divided business as well as labor unions.

Asbestos victims' groups say they do not want to give up their right to sue in court.

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