MSHA Issues Final Rule Lowering Coal Dust Exposure Limit Rule meant to reduce black lung disease among coal miners

By Roy Maurer Apr 25, 2014

Editor's Note (5/2/14): The National Mining Association has asked a federal appeals court to review the need for these recently announced coal-dust rules, setting up a potentially lengthy battle with the Obama administration.

The U.S. Mine Safety and Health Administration (MSHA) on April 23, 2014, issued a long-awaited final rule that reduces the allowable exposure of respirable coal dust in all underground and surface coal mines.

The final rule lowers the amount of coal dust to which miners may be exposed from 2.0 to 1.5 milligrams per cubic meter of air over a full work shift, requires more-frequent sampling for dust levels and expands requirements for medical surveillance of coal miners.

The rule represents the most significant changes to dust-control practices in mines since the 1969 Coal Mine Health and Safety Act and continues the agency’s efforts to eradicate black lung disease, or coal workers’ pneumoconiosis, an incurable ailment caused by prolonged exposure to coal dust that damages the respiratory system. According to the National Institute of Occupational Safety and Health (NIOSH), more than 76,000 miners have died since 1968 as a result of the disease, and more than $44 billion in federal compensation benefits have been paid out to coal miners disabled by black lung and to their survivors. Even though black lung incidence has dropped dramatically since the 1970s, miners are still being diagnosed with the disease, according to NIOSH.

“This final rule fulfills a longstanding commitment that I made on my first day with MSHA, and one to which I have been dedicated most of my working life,” said Assistant Secretary of Labor for Mine Safety and Health Joseph Main at a news conference announcing the rule. “We are finally moving forward to overhaul an outdated program that has failed to adequately protect miners from breathing unhealthy levels of coal mine dust and achieving the intent of Congress to eliminate black lung disease.”

The rule will be published in the May 1, 2014, Federal Register, and goes into effect Aug. 1, 2014, with a two-year phase-in period for some provisions.

Lowered Exposure Limit Among New Provisions

Effective Aug. 1, 2016, the concentration limits for respirable coal mine dust will be lowered from 2.0 to 1.5 milligrams per cubic meter of air at underground and surface coal mines, and from 1.0 to 0.5 milligrams per cubic meter of intake air at underground mines and for miners who have evidence of the development of black lung.

“Lowering the concentration of respirable coal mine dust in the air that miners breathe is the most effective means of preventing diseases caused by excessive exposure to such dust,” Main said. The two-year phase-in period gives “the industry the time it needs to adjust to the new requirements,” he said.

The new exposure limit is a compromise with the coal industry, since the 2010 proposed rule had called for cutting the dust limit in half. NIOSH, the United Mine Workers of America and public-health experts had backed the 1.0-milligram limit.

On Feb. 1, 2016, mine operators will be required to use the continuous personal dust monitor (CPDM) to keep tabs on underground coal miners exposed to the highest dust concentrations. The monitor will be optional for surface coal mines, nonproduction areas of underground coal mines, and underground anthracite mines using the full box, open breast or slant breast mining methods. The CPDM is a new sampling device that measures coal mine dust continuously and in real time. “This will enable mine operators to take earlier action to identify areas with dust generation sources, reduce the dust levels in those areas and prevent miners from being overexposed,” Main said.

Additionally, the final rule requires:

  • Immediate action when dust levels are high instead of allowing days or weeks of miners’ exposure to unhealthy dust.
  • More-frequent sampling of areas known to have relatively high dust levels, such as those closest to the production area.
  • Changes to the method of averaging dust samples, which previously allowed miners on some shifts to be exposed to levels above the standard.
  • Sampling for the full shift a miner works to ensure protection for all working hours, rather than stopping measurement after eight hours, as under the previous standard.
  • Dust samples to be taken when mines are operating at 80 percent of production, as opposed to the previous 50 percent requirement, so that samples are more representative of actual working conditions.
  • Mine operators to revise requirements for certified workers who perform dust sampling and who maintain and calibrate sampling equipment. To strengthen the certification process, the final rule requires completion of an MSHA course of instruction before passing the currently required competency examination. The final rule adds procedures allowing MSHA to revoke a person’s certification for failing to properly carry out the required sampling or maintenance and calibration procedures.
  • Improved medical surveillance of miners. The final rule extends the same medical surveillance requirements afforded underground miners, including chest X-ray examinations, to surface miners.

Industry Response

National Mining Association (NMA) President Hal Quinn said MSHA ignored scientific studies showing that the incidence of black lung is declining in most regions.

“We are disappointed that MSHA has chosen to ignore scientific evidence and proven solutions to address exposure to coal dust,” Quinn said in a statement. “The incidence of disease has decreased in most regions and where it does exist, it is clustered in isolated geographical areas. Rather than follow the evidence with a focused response, MSHA has unfortunately decided to proceed with a less effective one-size-fits-all nationwide approach.”

Quinn also said MSHA ignored the NMA’s suggested alternatives to addressing coal dust exposure, like rotating miners to reduce their overall exposure, requiring miners to wear personal protection equipment and mandating X-ray surveillance programs. “All of these measures and more have been recommended by NMA and are recognized in other industries to protect workers, yet all were ignored in favor of a standard that experts have concluded cannot be met by existing technologies,” Quinn noted.

Ohio-based Murray Energy Corp. announced it plans to sue the Labor Department to try to prevent the rules from taking effect. “Instead of protecting miners’ health, this rule clearly seeks to destroy the coal industry, and the thousands of jobs that it provides, with absolutely no benefit to the health or safety of miners, whatsoever,” Murray spokesman Gary Broadbent said in a statement. “This rule is economically and technologically infeasible, arbitrary and capricious, and unsupported by the best available evidence.”

MSHA concedes that average dust levels across the industry have fallen but insists that levels remain too high in some mines. “Anyone who thinks black lung is a thing of the past is dead wrong,” Main said. He explained in an April 23 press conference that the lower exposure limit isn’t even the main issue, pointing to the requirements for more-frequent dust sampling and the use of technology that can help prevent “widespread cheating” that has hampered past enforcement efforts. “What people are missing is all of these flaws and loopholes,” Main said. “If you don’t fix those, it doesn’t make any difference what you set the standard at.”

The new rules are a step in the right direction, said Celeste Monforton, a lecturer at George Washington University’s School of Public Health and a former MSHA policy analyst. “Now they must be diligently followed and enforced,” she added. “If they are, a couple of decades from now we’ll see the size of the difference they made.”

She does find fault with some measures that were scaled back from the proposed rule stage. One of Monforton’s biggest criticisms of the new rule is that it allows mine operators to take their own dust samples that will be used for enforcement. “This provision, which has been roundly criticized in all corners, is akin to driving over the speed limit and sending a notice to the police so they can send you a ticket,” she said.

United Mine Workers of America International President Cecil E. Roberts issued a statement that the union needed more time to study the final rule before commenting, but he reiterated that the uptick in black lung cases among working miners had to be because “allowable dust limits were too high, operators weren’t following the law, or the law wasn’t being enforced stringently enough.” Roberts said a combination of all those factors probably was at play.

Congressional Democrats praised the rule announcement, while Republicans took a more nuanced approach. Rep. John Kline, R-Minn., chairman of the House Education and the Workforce Committee, and Rep. Tim Walberg, R-Mich., chairman of the Workforce Protections Subcommittee, said in a joint statement April 23, “For too long a flawed regulatory process has stymied efforts to provide stronger black lung protections. … There is no good reason why industry, labor, and MSHA can’t come together to find agreement on what those safety standards should be. We strongly urge the administration to engage those affected by the regulation, to guarantee the best tools, technologies and practices are present in every mine. Only then can we ensure every miner is safe from the threat of black lung.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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