Labor rights expert Celeste Monforton comments on new black lung regulations

by Celeste Monforton
Labor Secretary Tom Perez announced yesterday a new regulation designed to reduce coal miners’ risk of developing coal mine dust lung disease (CMDLD).  I’ve written about these regulations many times, on both the need for them and the snail’s pace at which the White House’s Office of Information and Regulatory Affairs (OIRA) reviewed them. They are long overdue. 
Depending on who you ask these new regulations have been in the works since 2009 (beginning of the Obama Administration), 1996 (following an advisory committee report and NIOSH recommendation) or as far back as 1991 (following a special MSHA spot inspection program.)  They all had the same objective: to address a broken regulatory system that fails to protect coal miners from developing “black lung” disease.
The regulatory changes include:

• Reducing the permissible exposure limit (PEL) of 2.0 mg/m3 to 1.5 mg/m3 averaged over a full-shift, whether the miner works an 8-hour shift or one that is longer.
• Adopting a new continuous read-out air monitoring device that will give coal miners real-time information about their exposure to respirable coal dust. The device will also project what their total exposure will be at the end of their workshift (should their exposure remain the same.)  This will allow miners to take (or demand) immediate action to control the dust if it is projected to exceed the PEL. Controlling respirable coal dust typically involves improving air flow and/or using water to eliminate dust at its source.
• Requiring mine operators to download data from these new sampling devices and transmit it to MSHA within 24 hours.
• Eliminating a requirement that dates back to 1972 that forces MSHA to use an average of five samples to determine whether a miner was over-exposed to respirable coal dust. If the average didn’t exceed the PEL, the mine operator could not be compelled (with a citation) to improve dust controls.
• Enhancing the components of the periodic health examinations offered to coal miners from just a chest xray, to one that includes spirometry, symptom assessment, and an occupational history. In addition, miners who work at surface coal mines will now also be offered the periodic health examinations by the mine operator .

The new rule, however, is not as protective as the one that MSHA proposed in October 2010. It

• Does not reduce the PEL to 1.0 mg/m3 which is the level recommended in 1995 by NIOSH. MSHA is adopting a 1.5 mg/m3 PEL despites its own data which shows the 1.0 mg/m3 is feasible. The decision is perplexing. For some key mining tasks, including dusty jobs like roof bolting, more than 50 percent of samples collected by MSHA are already at levels at or below 1.0 mg/m3.
• Does not offer the highest level of protection based on what is feasible. MSHA estimated that 20 coal miners out of 1,000 would develop progressive massive fibrosis (PMF) (the most severe form of coal workers’ pneumoconiosis) if it set the PEL at 1.0 mg/m3.  The agency’s decision to set the PEL at 1.5 mg/m3 increases that estimate to 50 cases of PMF for every 1,000 coal miners. For emphysema, the risk estimate jumps from 61 cases per 1,000 (with 1.0 mg/m3 PEL) to 99 cases per 1,000 (at the 1.5 mg/m3 PEL.) Again, MSHA’s own data indicates the 1.0 mg/m3 standard is feasible.
• Does not eliminate the requirement that mine operators take their own respirable dust samples that will be used for enforcement.  This provisions, which has been roundly criticized in all corners, is akin to driving over the speed limit and sending a notice to the police so they can send you a ticket. 

Overall, the new rules are a step in the right direction to better protect miners’ health. Some will say a giant step, others might call it a regular step. Now that the new rules are on the books, they must be diligently followed and enforced. If they are, a couple of decades from now we’ll see the size of the difference they made.