Rock Products

JUN 2018

Rock Products is the aggregates industry's leading source for market analysis and technology solutions, delivering critical content focusing on aggregates-processing equipment; operational efficiencies; management best practices; comprehensive market

Issue link:

Contents of this Issue


Page 62 of 75 ROCK products • June 2018 • 61 LAW Given that dust and other contaminate sampling is highly technical (e.g. silica, lead, silver, arsenic, mercury and diesel exhaust), many employers are tempted to defer to the tech- nical work done by the enforcement agencies. You shouldn't. Indeed, precisely because sampling and analysis is so tech- nical, when enforcing exposure limits or related standards (e.g., engineering controls, respirator and medical exam man- dates, hazard posting, and clean lunch and change rooms), the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) face difficult burdens of proving the "accuracy" and "validity" of their exposure limit violations. Employers should understand that agency sampling and analysis results are merely estimates, based on a series of presumptions. Whether or not they are valid depends on a number of factors, for which the agency itself often creates, controls and possesses the evidence. Asking the right questions of the agency, both during a cita- tion challenge, and informally at the inspection opening conference, the start of sampling, or the closing conference) can provide you with important information to weigh the value of the sampling results or serve as evidence to defend against citations and penalties. A simple Freedom of Information Act request letter also can help deliver critical information for assessing the valid- ity of MSHA/OSHA sampling results. In contrast, accepting invalid agency results, even with small penalties, can cost more than you might think. It can provide evidence for more severe enforcement later and/or for lawsuit claims against employers. Ashes, Ashes All Fall Down Does OSHA/MSHA Dust/Contaminant Sampling Produce Valid Evidence of Violations? By Henry Chajet and Thomas A. Hall This article is the first of a planned series of three, addressing exposure limits and related citations. Our goal is to guide you through key evidence, based on a long history of cases handled by our safety and health law team. In those cases and in rulemaking comments, we've worked with some of the nation's leading scientists, who explained that Industrial Hygiene (IH) is not just science; it's also "art," and that MSHA, OSHA and other agencies do not always succeed in trying to impose a "fine line" of non-compliance. Here, we set forth a few initial questions/requests to pose to OSHA or MSHA regarding sample collection. In later articles, we will discuss sample analysis questions that also weigh heavily on accuracy and validity (e.g. how the laboratory cali- brates its equipment, corrects for error factors, and complies with a slew of scientific norms and procedures). In our final article we will address the possible impacts and planning of company sponsored sampling and analysis. Science: The Foundation for Strict Measurement Procedures OSHA, MSHA, The National Institute for Occupational Safety and Health (NIOSH) and other agencies have adopted exten- sive, detailed procedures for IH sampling and analysis that "estimate" sample results, compare them to exposure limits, and account for accepted sampling and analytical error in making compliance decisions. Their failure to follow these procedures can be strong evidence that their results, at or above exposure limits, may be inaccurate and not valid evi- dence of overexposure. Sample collection procedures generally are within the con- trol of the field inspector, while lab analyses are within the Thomas A. Hall, Ph.D., CIH., FAIHAOR, is an industrial hygiene consulting professional based in Okla- homa City. Henry Chajet is a partner at Husch Blackwell LLP. He provides strategic counsel to clients, to prevent or reduce risks from situations of crisis and uncer- tainty, in environmental, employee health and safety, and antitrust law matters. He also represents clients in rulemaking and legislative proceedings, as well as in investigations and litiga- tion involving unfounded enforcement actions. Chajet is a member of Husch Blackwell's Technology, Manufacturing & Transportation team.

Articles in this issue

Links on this page

Archives of this issue

view archives of Rock Products - JUN 2018