In August 2013, I authored an article for this publication that questioned whether MSHA examined all available data and scientific research prior to its 2010 proposal to lower exposure limits for respirable coal dust in all underground and surface coal mines under the agency’s End Black Lung-Act Now campaign. At that time, the University of Kentucky had just released a study analyzing more than 600 single-shift samples collected using a continuous personal dust monitor (CPDM). The researchers found that “the variability associated with single-shift samples will be higher than the variability used to develop the proposed standard.” This raises the distinct possibility that many mines may face non-compliance determinations improperly, even when they are in full compliance with the proposed limits.

Then in June 2014, I wrote an article regarding the National Mining Association’s (NMA) petition seeking judicial review of the MSHA final rule entitled “Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors” (79 Fed. Reg. 24,813, May 1, 2014). According to the NMA, there was a “failure to adequately consider important implementation issues and administrative defects in the rule.”

Under the rule, mine operators are required to use CPDMs to sample for respirable coal mine dust on working sections of underground coal mines and other areas approved by the district manager. In addition, the CPDM must be used to sample air for all Part 90 miners, and may be used for sampling at surface mines if approved by the district manager.

Now, two years later, MSHA has become aware of, and begun an investigation into, the interference created by CPDMs when used in the vicinity of proximity detection systems (PDS). This interference with PDS is significant and troubling. PDS have been used successfully underground since 2009, and in January 2015, MSHA published a final rule requiring the installation of PDS on continuous mining machines used in underground coal mines. By MSHA’s own admission, PDS “strengthens protections for miners on the working section of underground coal mines by reducing the potential for pinning, crushing or striking accidents.” MSHA projected that “the rule will prevent 49 injuries and nine deaths over the next 10 years.”

Is MSHA’s realization of this issue too late? In interesting timing, on April 20, the United States Court of Appeals for the Eleventh Circuit denied the request of the NMA and Murray Energy for a rehearing en banc of the ruling of the court denying the petition for review of the final coal mine dust rule.

While MSHA is currently indicating that the PDS are the root cause of the problem, it previously stated in the preamble of the final proximity rule that it “had not experienced issues with adverse interference, with or from other electrical systems, associated with the 425 systems in use on continuous mining machines in underground coal mines.” If that is really the case, where do we go from here?

On April 19, NMA sent a letter to Assistant Secretary of Labor for Mine Safety and Health Joseph Main asking, among other things:

When did MSHA first become aware of possible interference issues caused by and associated with dust sampling devices?

Since there is an alternative method to the CPDM for conducting respirable dust sampling, why has MSHA insisted on forcing the mining community to use an instrument that has been proven to be a significant source of interference with other electrical systems?

Have proximity detection system manufacturers been involved in the development of interference test protocol?

Has MSHA observed any cases where proximity systems cause interference with other electrical systems?

If CPDMs are indeed responsible for the interference issues observed when used in the vicinity of PDS, would this create a valid reason for MSHA to revisit a rule that they have vigorously defended? At this juncture, mine operators are left between a rock and a hard place in determining whether to comply with MSHA’s requirement to use CPDMs even if they interfere with the effective use of PDS. As all of this plays out, MSHA should begin to realize that rushing to judgment and pushing new regulations through the rulemaking process might not always be beneficial. Only after a complete review of evidence, science, viable alternatives, and potential impact should a decision be made as to what type of action or inaction on the part of MSHA provides the most safety to miners.

One has to wonder what effect a strategically filed petition for modification might have. Such a filing would require MSHA to make a determination as what presents the greater hazard, interference, going back to conventional sampling or doing away with PDS. The results could be very intriguing indeed.

Ross Watzman is an associate in the Denver, Colorado, office of Jackson Lewis P.C. He represents clients on a wide range of administrative, regulatory and public policy issues.