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April 23 --The Labor Department's Mine Safety and Health Administration April 23 issued a long-awaited final rule on respirable coal dust that reduces the allowable exposure, increases sampling and requires faster corrective actions.
The final rule will lower the amount of coal dust to which miners may be exposed from 2.0 to 1.5 milligrams per cubic meter of air, which is still higher than the 1 milligram standard included in the previous proposed rule. The final rule also will require more frequent sampling for dust levels and immediate corrective actions from mine operators when dust levels become excessive.
Labor Secretary Thomas Perez and MSHA director Joseph A. Main stressed in an April 23 conference call that the significance of the rule is not only its exposure standard but its closure of loopholes. Merely lowering the permissible dust concentration “would have had minimal impact on miners' safety,” Perez said. Under the final rule, he said, “we test more frequently. We make use of technology to make it much more difficult to cheat.”
“We took a combination approach … and piece by piece made adjustments” during the rulemaking process instead of focusing only on the exposure standard, Main said. “The goal of this rule from Day 1 was to lower miners' exposure to the dust they breathe. All these changes collectively get us there.”
A National Mining Association official criticized MSHA's “one-size-fits-all nationwide approach,” while congressional Democrats applauded the final rule and Republicans urged the Obama administration to “engage” with those affected by the regulation to ensure the use of the best tools and practices.
The rulemaking is part of MSHA's “End Black Lung--Act Now” campaign. Black lung, which is preventable but not curable, refers to several lung diseases--including pneumoconiosis, emphysema, silicosis, and chronic bronchitis--that can result from exposure to respirable coal dust.
Perez said this rule will help retired miners have “an opportunity to spend their golden years” playing with their grandchildren, “not gasping for breath” while tethered to a respirator. “It is time to put black lung in the history books once and for all,” the labor secretary said.
The 991-page rule will take effect Aug. 1 but has a two-year phase-in period for some requirements. The text of the rule (RIN 1219-AB64) is scheduled for publication in the May 1 Federal Register. The current respirable dust standard was promulgated in 1980.
“You shouldn't have to sacrifice your life for your livelihood,” Perez said. “Today's rule, plain and simple, will save lives.”
Starting Aug. 1, 2016, the concentration limits for respirable coal mine dust will be lowered from 2.0 milligrams to 1.5 milligrams of dust per cubic meter of air at underground and surface coal mines. The rule also lowers the concentration limit from 1.0 milligrams to 0.5 milligrams of dust per cubic meter of air for intake air at underground mines and for coal miners who show signs of developing pneumoconiosis.
The version of the rule proposed by MSHA in 2010 would have lowered the limit even further, to 1 milligram of dust per cubic meter of air (198 DLR A-10, 10/14/10). During the conference call, Perez said “1.0 was a potential means to an end, scientifically supported; 1.5 was another potential means to an end, scientifically supported.” He and Main emphasized that the 1.5 standard, in conjunction with the final rule's stringent sampling and enforcement procedures, should “fix the problem” of excessive dust exposure.
As of Feb. 1, 2016, the rule requires mine operators to use continuous personal dust monitors to check the exposure of underground coal miners and those miners already showing evidence of pneumoconiosis. Use of the monitors will be optional for surface coal mines.
The rule also redefines “normal production shift” so that underground mine operators must take respirable dust samples when production is at least 80 percent of the average level. The existing rule allows underground mine operators to sample when production is only 50 percent of the average level. The new standard will portray more accurately the actual dust levels to which miners are exposed, MSHA said.
The rule requires a mine operator to collect respirable dust samples for the full length of a miner's shift. Consequently, if a miner works a 12-hour shift, respirable dust samples must be taken for the entire work shift. The existing rule requires samples to be taken for a maximum of eight hours.
The rule also requires immediate corrective actions to lower dust concentrations when a single, full-shift operator sample meets or exceeds the excessive concentration value for dust. Under existing standards, corrective action is required only after the average of five operator samples exceeds the standard and a citation is issued.
Under the rule, MSHA inspectors will use single, full-shift samples to determine noncompliance with the respirable dust standard.
The final rule adds spirometry testing, occupational history and symptom assessment to the periodic chest X-rays that mine operators must offer underground miners. The rule also allows surface miners who show signs of pneumoconiosis the right to transfer to a less dusty part of the mine. Underground miners showing signs of pneumoconiosis already have such transfer rights.
The rule also adds a requirement that people who maintain and calibrate sampling equipment must complete an MSHA course.
The final rule was announced during an event at the National Institute for Occupational Safety and Health facility in Morgantown, W.Va. NIOSH estimated that more than 76,000 miners have died from black lung disease since 1968. MSHA said in an April 23 statement that more than $45 billion in federal compensation benefits have been paid to coal miners disabled by black lung and their survivors since 1970.
MSHA said that after it published the proposed rule in 2010, it held seven public hearings, extended the public comment period three times and received approximately 2,000 pages of comments from industry, labor, public health professionals and others .
“Today's announcement represents a lost opportunity to provide better protection for those who need it and more job security for all our coal miners,” Hal Quinn, president and CEO of the National Mining Association, said in an April 23 statement.
“The incidence of disease, as documented in the x-ray surveillance data compiled by the National Institute for Occupational Safety and Health, 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 said.
He criticized MSHA for declining to adopt the NMA's suggestions for reducing miners' coal dust exposure, such as by using personal protection technologies, rotating miners to less dusty areas inside the mine, and establishing mandatory X-ray surveillance programs.
“Because there is no cure for black lung, it is imperative that we protect miners from developing the disease in the first place, which is exactly what this rule will do,” Sen. Tom Harkin (D-Iowa) said in an April 23 statement.
“From my own experience, I know how important this rule is to protect miners and their families. My father was a coal miner who suffered from black lung, and it was painful to watch him struggle with the disease,” said Harkin, who chairs the Senate Health, Education, Labor and Pensions Committee, which oversees mine safety.
“I commend Secretary Perez and Assistant Secretary Main for all the work they do every day to protect the health and safety of miners. With their leadership and these new protections, it is my hope that we can once and for all end this horrible disease that has already taken too many lives and devastated too many families,” Harkin said.
“Today is a truly historic day for coal miners in West Virginia and around the country,” Sen. Jay Rockefeller (D-W.Va.) said in an April 23 statement. “While this is a big step forward, it is by no means the end of our fight to eradicate this scourge of coal miners. And, just as important is our effort to provide health care and financial support to those who are already suffering. I'll do all I can to make sure these miners and their families get the benefits they need and so rightfully deserve.”
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. No miner should go to work without the best standards in place to guard against this deadly disease. And there is no good reason why industry, labor, and MSHA can't come together to find agreement on what those safety standards should be.”
“While we intend to carefully review the regulation, today's announcement should not be the end of this important discussion,” Kline and Walberg said. “No doubt stakeholders will continue to raise concerns with the new rules and offer ideas for improvement. 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.”
A spokesman for the United Mine Workers told Bloomberg BNA April 23 that the union was still studying the rule.
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Text of the final rule is available at http://op.bna.com/dlrcases.nsf/r?Open=gcii-9jfll7.
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