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Groups weigh further challenge to coal dust safety rule

Posted On: Feb. 11, 2016 12:00 AM CST

The U.S. mine regulator has implemented the second phase of its rule on breathable coal dust, which will be costly for mine employers as they weigh an appeal of a decision that rejected their challenge.

The U.S. Mine Safety and Health Administration on Feb. 1 began requiring that each underground coal miner have a continuous personal dust monitor, following a ruling by the 11th U.S. Circuit Court of Appeals in Atlanta.

On Jan. 25, the appeals court rejected challenges by the National Mining Association and other industry entities questioning the rule that the federal agency imposed as well as its authority to issue the rule.

The plain language of the Federal Mine Safety and Health Act of 1977 says MSHA has the sole responsibility to issue regulations, after taking advice from the National Institute for Occupational Safety and Health, according to the appeals court. The court also said that MSHA adequately took into account scientific evidence in developing its rule and deserves deference in reaching its conclusions.

“I think this decision is well-informed based on the long history of administrative agencies' authority to promulgate rules within the scope that's been given to them by Congress,” said Matthew Linton, of counsel at law firm Holland & Hart L.L.P. in Denver. “I don't think it was a hard case for the court.”

However, the association is considering whether to join St. Clairsville, Ohio-based Murray Energy Corp.'s planned request that the entire 11th Circuit Court of Appeals hear the case, said Bruce Watzman, senior vice president of the National Mining Association in Washington.

“We think the court unfortunately has misread the statutory requirement for joint action” with NIOSH, Mr. Watzman said. “We think they have extended deference to the agency where it's unwarranted and undue.”

But MSHA is not expected to back down from its efforts to eradicate black lung disease, which it said has caused or contributed to 76,000 miner deaths since 1968 and cost more than $45 billion in federal compensation.



Black lung deaths

• While the number of U.S. coal mines, workers and deaths related to pneumoconiosis have generally declined for decades, nearly 500 coal industry workers died of black lung disease in 2010.

• That compares with 48 deaths due to accidental causes in 2010 among more than 135,000 coal miners working nationwide that year.

• Employment peaked in 1923, when the U.S. coal industry employed more than 860,000 people. That number fell to about 116,000 in 2014.

Source: Mine Safety Health Administration


While Phase I of the rule implemented in August 2014, which required dust samples to be taken at specific times, was not particularly onerous for employers, the Phase II requirement of providing continuous personal dust monitors to each underground miner does involve additional costs, said Fred W. Smith IV, director of natural resources and head of U.S. mining and metals at Willis Towers Watson P.L.C. in Knoxville, Tennessee.

Such devices cost upward of $10,000 apiece, experts say.

“It's not a monetary issue when it comes to miners' health,” Mr. Watzman said. “The question is: Is the device effective? The underground environment is a harsh environment and these devices were not tested in our estimation to the degree that needed to be done prior to mandating their use.”

Failure to comply with the Phase II requirements is likely to lead to citations against mine employers, although they will likely be relatively small dollar amounts, Mr. Linton said.

Phase III will lower the threshold for permissible dust levels from 2.0 milligrams of dust per cubic meter of air to 1.5 milligrams at underground and surface coal mines beginning Aug. 1. However, experts do not anticipate major compliance challenges since 99% of the samples collected since the rule became effective in 2014 already were below the new limit.

“Compliance is good, but still there's always room for improvement,” Mr. Smith said. “Noncompliance really isn't going to be an option. The other option is if you're not in compliance, they will shut you down.”