Under the new rule:
- The concentration limit for respirable coal dust is lowered, as of August 1, 2016, from 2 milligrams of dust per cubic meter of air (mg/m3) to 1.5 mg/m3 at underground and surface coal mines, and from 1 mg/m3 to 0.5 mg/m3 for intake air at underground mines and for miners who have evidence of the development of pneumoconiosis.
- Beginning August 1, 2014, mine operators must take immediate corrective action when a single sample exceeds the excessive concentration value (ECV); miners must be sampled for the full shift they work to ensure protection for all working hours, rather than stopping measurement after 8 hours, as required under the previous rule; and, the production level for a valid sample increased to 80% of the previous 30-day average.
- On February 1, 2016, mine operators must begin using new continuous personal dust monitors (CPMD) to monitor exposures of underground coal miners in occupations exposed to the highest respirable dust concentrations.
- More frequent sampling of areas known to have relatively high dust levels, such as those closest to the production area are required.
- As of October 1, 2014, medical surveillance requirements are expanded and extended to surface coal miners.
Although, Assistant Secretary of Labor for Mine Safety and Health Joe Main said, “We are finally moving forward to overhaul an outdated program that has failed to adequately protect miners from breathing unhealthy levels of coal mine dust and achieving the intent of Congress to eliminate black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.”
NMA firmly contends that the rule “embodies fundamental legal and technical infirmities in its scope, foundation and framework.” According to the NMA, there was a “failure to adequately consider important implementation issues and administrative defects in the rule.” Thus, on May 2, NMA sent a letter to Main requesting that MSHA postpone the effective date to address what it calls “technical flaws and provisions that do not align with other requirements of the rule.”
In its response on May 15, MSHA denied NMA’s request and reiterated its belief that “a stay of the final rule puts its health benefits on hold and results in continued harm to miners. Black lung is debilitating and can result in disability and premature death…The public interest is best served by implementation of the final rule because the public interest under the Mine Act lies in primarily improving miners’ health.”
NMA and operators worry that, as promulgated, the new rule is overly restrictive, contains requirements that are completely unattainable, and discredits the use of additional proven administrative controls and technology such as air helmets to reduce miners’ exposure to respirable coal mine dust. Adding to the problem is the fact that, starting August 1, 2014, operators will now be required to take “immediate corrective actions” based on sampling technologies that do not provide them with real-time measurements. Additionally, according to NMA, “the effective date of the rule does not provide sufficient time for operators to review and statistically analyze operating histories, make projections for the new sampling scheme, and develop procedures to satisfy the new and substantially higher 80% average production requirement.”
The fact that the rule is being challenged does not, unless a court stays the effective dates of the rule, relieve operators from compliance with its requirements. As of now, operators will be required to figure out ways to either comply with the extraordinarily rigorous requirements or otherwise avoid liability therefrom. Ultimately, this detracts from operators efforts to better protect their employees using means other than those now required by MSHA. In the unfortunate event that an operator is cited under the new rule, the operator should consider seeking legal counsel to confirm that compliance with the rule is possible, and a plan is created to ensure that this does not become a repetitive issue.
Ross Watzman is an associate in the Denver, Colorado, office of Jackson Lewis P.C., and a member of the firm’s Workplace Safety and Health Practice Group. Watzman represents clients on a wide range of administrative, regulatory and public policy issues.