By Erik Dullea and Henry Chajet
MSHA anticipates publishing a final, new coal dust regulation in June 2013. A new exposure limit, proposed in October 2010, contemplates a 50% reduction from the current exposure limit (2 mg/m3) to 1 mg/m3. The accompanying “ancillary” regulations would limit mine operator dust control methods, mandate a new and unproven dust sampling device, extend and complicate an unreliable sampling and analysis system, impose significant new costs, and pose extensive and unwarranted enforcement actions. Yet, the record is clear that the current coal dust limit protects miners. The extensive industry comments, data and studies submitted to MSHA by the National Mining Association and various companies demonstrate that the agency ignored the massive health protection gains achieved by industry and miners under current regulations, while failing to address statutory mandates needed for improvements, in favor of an old, tired and outdated regulatory approach—“less is more”—that ignores science, logic and law. See the Centers for Disease Control graph below.
The most offensive example of logic and law defied is the agency’s proposed decision to reject mandatory X-ray surveillance for current miners, the best tool for intervention and prevention. MSHA simply ignored government data showing the voluntary X-ray participation rate at between 20%-35%.
MSHA’s 50% dust limit cut relied on a 1995 NIOSH study, a 1996 Advisory Committee report and a 2010 agency “risk assessment.” But, the rulemaking record is filled with studies demonstrating that the risks reported in these documents, if accurate, could only have been created by “hot spots,” in limited areas in three states where excessive silica exposures were documented. Rather than acknowledging its silica control and enforcement issue, and acting to address it, MSHA defied logic and science with its industry wide and ineffective coal dust reduction proposal.
Again and again the MSHA proposal failed to adhere to sound science and law. MSHA rejected the uniformly adopted, OSHA “hierarchy of controls” concept that addresses health concerns with feasible engineering controls, administrative controls, and respirator use when the other control methods do not work or are not feasible. Instead, MSHA imposes regulatory burdens while failing to advance health protections. Perhaps worse, while seeking new technology in the proposed new dust sampler, MSHA failed to demonstrate it was technically sound and feasible, and ignored extensive documented problems with units tested in the field.
Accurate dust samples and analysis are required to properly identify risks and the need for protective measures or enforcement. Yet, the MSHA proposal would replace the current five-sample dust collection method with a “single-shift” (administratively convenient) sample enforcement system. In addition, MSHA would use samples for enforcement, regardless of any process to assure that they actually contain particles that can be inhaled into the lungs, and are not contaminated with oversized, non-respirable particles.
Only in Washington, D.C., could the word “accurate” be deemed to mean, within 25% of the true value, 95% of the time. Yet that is precisely the logic MSHA needed to justify the five sample averaging system. By reducing the quantity of samples, relying on a single sample, and failing to ascertain if samples contain oversize particles, MSHA will achieve more enforcement, regardless of accuracy, and again redefine “accurate” to defy logic and science.
Once these concerns were raised by industry, Congress prohibited MSHA from finalizing the respirable dust rule until the Government Accountability Office (GAO) reviewed the basis for the MSHA proposals. Unfortunately, the GAO review was not an independent review; it parroted MSHA’s conclusions and is permitting MSHA to advance its rule further, perhaps later this summer.
Over the last six months, MSHA added ventilation plans and respirable dust compliance to its Impact Inspection program, including targeting 13 mining operations for impact inspections due to an alleged history of respirable dust compliance problems. Undoubtedly, MSHA dust citations will permit mine operators to cross examine MSHA enforcement and lab personnel on the validity of dust sampling procedures, and the validity and accuracy of weighing and analysis conducted by MSHA lab personnel. In prior cases handled by our firm, citations have been vacated due to inaccuracies and deficiencies in the MSHA system producing results that cannot carry MSHA’s burden of proving a violation.
The MSHA coal dust regulations, if issued as proposed, likely also will present a court with the opportunity to examine whether regulations that ignore sound science and logic should be upheld or rejected. We are confident that unless the agency vastly improves its proposed rules and procedures, courts will strike down rules and enforcement that defy logic, science and law. The legal arguments rendering the MSHA proposed rule invalid, if adopted, were well documented in the industry comments and form the basis for a court’s rejection of the rules, should they be issued as proposed. Unfortunately, if MSHA acts as expected, it will have wasted significant resources and missed an opportunity for needed regulatory and enforcement improvements.
Dullea is an associate with Patton Boggs LLP. He can be reached at firstname.lastname@example.org. Chajet is a partner with Patton Boggs LLP. He can be reached at email@example.com.