Despite legislation that prohibits it from being enforced — at least until the GAO completes a report on the proposal — the U.S. Mine Safety and Health Administration has quietly announced plans to finalize its new rules aimed at ending black lung disease.

A new Labor Department regulatory schedule, posted on the Internet, but not publicly announced by the agency, lists a date for publication of the final rule as April 2012.  I asked MSHA spokeswoman Amy Louviere about it, and she said in an email:

The rider does not restrict MSHA’s ability to promulgate the rule, only MSHA’s ability to implement or enforce the rule.

Yesterday morning, MSHA chief Joe Main was on the phone with news reporters, touting his agency’s ambitious and aggressive new regulatory agenda.

The event was part of a broader public relations effort by the Obama administration’s Department of Labor, with Web chats and telephone conference calls about the agency’s regulatory initiatives. As former MSHA and OSHA staffer Celeste Monforton has written on The Pump Handle blog:

… These plans quickly become stale because target dates are missed, new issues emerge and political winds shift, but they still give us a snapshot inside the agencies and the Administration’s regulatory strategies at a moment in time.

With that in mind, it’s particularly interesting to look at the MSHA regulatory agenda’s entry regarding what arguably is the most important mine safety and health issue facing the nation’s coalfields: The rule titled, Lowering Miners’ Exposure to Coal Mine Dust, Including Continuous Personal Dust Monitors.

MSHA proposed the rule back in October, already nearly a year after officially kicking off its “End Black Lung: Act Now!” program. Remember that black lung has killed roughly 10,000 miners in the last decade, and public health advocates — including NIOSH and a Labor Department advisory panel — were advocating a tightening of the dust standard back in the mid-1990s. And, of course, the Obama administration went through months of a song-and-dance over whether they would actually follow those long-standing recommendations when they finally proposed their rule.

So now, with public hearings scheduled this month and next, what’s MSHA’s new regulatory agenda say about its next steps toward getting this rule finalized?

Post hearing comment period end: 2/28/2011

That’s it. No deadline for when the agency plans to issue a final rule.

So during a conference call with Joe Main and his regulatory chief, Patricia Silvey, I asked about that …

Pat Silvey kindly explained that this was MSHA’s semi-annual regulatory agenda. It’s a six-month-out look at what the agency has planned, she said, adding:

That’s what we’re here to talk about … we do not project further than that … we cannot project any further than that at this time.

OK. Well, if that’s the case, then it’s obvious I guess that MSHA doesn’t plan to finalize the coal-dust limits anytime in the next six months.

But when I looked at other items on MSHA’s agenda, agency officials in fact did project out beyond that six-month time frame. For example, the regulatory proposal concerning metal and nonmetal dams projects that MSHA will finish analyzing public comments in September 2011. Or, an item concerning approval of electrical products for use in mines is listed as having a proposed rule scheduled for publication in August 2012.

And in fact, the Federal Register notice outlining what Department of Labor agencies are supposed to include in their regulatory agendas says this:

Executive Order 12866 requires the semiannual publication of an agenda of regulations that contains a listing of all the regulations the Department of Labor expects to have under active consideration for promulgation, proposal, or review during the coming one-year period.

So, I’m not really sure what Pat Silvey and Joe Main were getting at with this thing about only projecting out six months in MSHA’s regulatory agenda. I asked the agency for a more complete explanation, but I haven’t heard anything back yet.

I would like to know — and coal miners would probably like to know — when MSHA expects to put in place the tougher coal-dust limits that experts say are needed to protect workers from this deadly disease.

Today is the first public hearing on the U.S. Mine Safety and Health Administration’s proposal to tighten the legal limit on coal dust as part of the Obama administration’s plan to end black lung disease.

Here’s the early report from the AP, whose Tim Huber attended the hearing held at the MSHA Academy outside Beckley:

The West Virginia Coal Association wants federal regulators to rewrite proposed regulations that would place stricter limits on coal dust exposure.

Lobbyist Chris Hamilton told a regulatory panel Tuesday the changes would cost far more than expected and are based on unproven science, among other things.

Others addressing the Mine Safety and Health Administration panel urged adoption of the changes as a step toward eradicating black lung disease, which is caused by inhaling dust.

The hearing at MSHA’s mine academy in Beaver is the first of seven planned across the country.

The proposal would cut by half existing limits for breathable dust in coal mines, among other things. The disease has plagued miners for generations and is blamed for more than 10,000 deaths in the past decade.

Recall that government agencies and advisory panels have been advocating a tighter dust standard for years, the MSHA proposal has the “full support” of the United Mine Workers union, and has been widely praised by worker health advocates and black lung experts.

This just in:

The U.S. Department of Labor’s Mine Safety and Health Administration today announced that it will hold six public hearings on the proposed rule “Lowering Miners’ Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors.” The notice will be available in the Federal Register on Nov. 15. The proposed rule was published Oct. 19 and is available here.

“This proposed rule would significantly improve health protections for underground and surface coal miners by reducing their occupational exposure to respirable coal mine dust,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “It will lower the risk that they will suffer material impairment of health or functional capacity over their working lives.”

Each of the public hearings will begin at 9 a.m. local time and end after the last presenter speaks, but no later than 5 p.m., on the following dates at the locations indicated:

Dec. 7, 2010 National Mine Health and Safety Academy Beaver, W.Va.

Dec. 9, 2010 The George Washington Hotel Washington, Pa.

Jan. 11, 2011 Marriott Evansville Airport Evansville, Ind.

Jan. 13, 2011 Sheraton Birmingham Birmingham, Ala.

Jan. 25, 2011 Marriott Salt Lake City Salt Lake City, Utah

Jan. 27, 2011 Mine Safety and Health Administration Headquarters Arlington, Va.

Each hearing will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. A written request is not required to speak; however, individuals and representatives of organizations wishing to speak are encouraged to notify MSHA in advance for scheduling purposes by calling 202-693-9440.

MSHA will accept post-hearing written comments and other appropriate information for the record from any interested party, including those not presenting oral statements. Comments must be received by midnight EST on Feb. 28, 2011.

Labor Secretary Hilda Solis and MSHA chief Joe Main a little while ago wrapped up a brief conference call with the media, in which they formally announced their new rulemaking that is part of the Obama administration’s “End Black Lung” campaign.

Here are the highlights of  the proposed rule:

– Phasing in, over a two-year period, a tightening of the legal limit for coal dust from 2.0 milligrams per cubic meter to 1.0 milligrams per cubic meter.

– Require the use of continuous personal dust monitors to measure miners’ exposure in a more timely and accurate manner.

– Provide for full-shift sampling — rather than averaging samples from multiple shifts, which can underestimate actual numbers — to more accurately measure miners’ exposure.

– Redefine work shifts for compliance purposes to more accurately reflect that miners simply don’t always work eight-hour shifts anymore.

In today’s news release, MSHA noted:

Based on recent data from NIOSH, cases of black lung are increasing among the nation’s coal miners. Even younger miners are showing evidence of advanced and debilitating lung disease from excessive dust exposure. Over the past decade, more than 10,000 miners have died from black lung. The federal government has paid out more than $44 billion in compensation for miners totally disabled by black lung since 1970, according to the Labor Department’s Office of Workers’ Compensation Programs.

(more…)

The Obama administration appears to be proposing a two-year phase-in of a long-recommended tighter legal limit for coal dust that causes deadly black lung disease.

Copies of the U.S. Mine Safety and Health Administration proposal are available now through the Federal Register the Department of Labor Web site here,  in advance of a news conference scheduled by MSHA chief Joe Main and Labor Secretary Hilda Solis later today.

According to the proposal, the legal limit on coal dust in underground mines — currently 2.0 milligrams per cubic meter of air — would be tightened to 1.7 milligrams six months after the rule is finalized. The limit would be tightened to 1.5 milligrams in a year and then to 1.0 milligrams a year after that.

MSHA says in the proposal:

MSHA is proposing a 24-month phase-in period to allow the mining community the opportunity to identify, develop and implement feasible engineering controls; train miners and mine management in new technology and control measures; and to improve their overall dust control program.

According to MSHA:

The proposed rule would significantly improve health protections for this Nation’s coal miners by reducing their occupational exposure to respirable coal mine dust and lowering the risk that they will suffer material impairment of health or functional capacity over their working lives.

Check back … we’ll have more on this later today.

UPDATED: For a quick commentary on this, see The Pump Handle, where Celeste Monforton calls the Obama proposal a “bold step.”

President Obama’s top worker safety regulators have scheduled a press conference call today to discuss their plan to end black lung disease.

Will their proposals really get the job done?

Well, The Hill lays out again what Coal Tattoo has been saying (see previous posts here, here, here and here)  is the key to answering that question:

The big question about Thursday’s announcement: Will the agency propose to reduce workers’ permissible exposure limit (PEL) to coal dust? Or will it simply take steps to limit miners’ exposure to the dust?

The Hill explains:

The difference is nuanced but significant.

The mining industry has argued the current PEL — which, since 1974, has been set at 2 milligrams of dust per cubic meter of air over an eight-hour shift — is appropriate, but just not very well enforced. In their version of the tale, any occurrence of black lung is the result of companies simply not complying with the current limits.

…

Many health and mine-safety experts, however, tell a different story. They say the current PEL is too high and doesn’t go far enough to protect the nation’s miners. If the Labor Department simply takes steps to enforce the PEL without lowering it, they warn, black lung will remain an enormous problem.

“Even if every single company were complying with the standard, you would still have the disease,” Celeste Monforton, a former mine-safety official in the Labor Department who’s now a public health professor at George Washington University, said Wednesday. “The science tells us that 2 [mg/m3] is not protective.”

Remember, the Obama administration initially issued a regulatory notice saying it planned to tighten the dust limit, but later — after Joe Main took over at MSHA — the announced plan was changed, to one that did not specifically include tightening the limit.

Stay tuned …

With the Obama administration set to release its plan to “End Black Lung” on Thursday, perhaps it’s worth reviewing some of what the science tells us about black lung and how to prevent it …

Luckily, the folks at the National Institute for Occupational Safety and Health recently published a summary of scientific findings about black lung since 1995. It’s available online here, and NIOSH describes it this way:

In 1995 in a major NIOSH review and report of recommendations, entitled Criteria for a Recommended Standard – Occupational Exposure to Respirable Coal Mine Dust. This Current Intelligence Bulletin updates the information on coal mine dust exposures and associated health effects from 1995 to the present. In part, the intent is to determine whether the 1995 recommendations, in this respect, remain valid, and to what extent, if any, modifications or additions are needed to those recommendations. The report does not deal with, nor discuss, issues of sampling and analytical feasibility nor technical feasibility in achieving compliance.

Of course, that 1995 NIOSH report — available here — clearly recommended that MSHA tighten the allowable limit of coal dust in underground mines from 2 milligrams per cubic meter to 1 milligram per cubic meter.

So what does the new NIOSH report say? Well, how about these comments:

– While findings published since 1995 refine or add further to the understanding of the respiratory health effects of coal mine dust described in the NIOSH Criteria … they do not contradict or critically modify the primary conclusions and associated recommendations given there. Rather, the new findings strengthen those conclusions and recommendations.

– Even at the lower coal mine dust levels recommended by NIOSH … some incidence of [black lung] would still be expected, especially among miners of higher rank coal.

– … Even at the 1 mg/m3 coal mine dust exposure limit recommended by the CCD, some occupational effect on ventilatory function is expected.

(more…)

With an announcement of the Obama administration actual plan to “End Black Lung” expected very soon, the U.S. Mine Safety and Health Administration is trying to drum up support for the proposal — before interested parties have even had a chance to see it.

UPDATED: Labor Secretary Hilda Solis has scheduled a press conference for Thursday to announce the administration’s plan.

Potential supporters have received this note from MSHA officials:

Hello folks,

Thank so much for your continuing offer to help MSHA with our End Black Lung campaign and rulemaking efforts. Sorry if I missed speaking with you – I left you a message with my contact information.

As promised, attached is the excerpt from our spring regulatory agenda on “Lowering Miners’ Exposure to Coal Mine Dust Including Continuous Personal Dust Monitors” for a bit of background on the direction of our respirable dust proposed rule.

To assist us, we appreciate if you could provide:

1) a quote of endorsement via email first (by Tuesday noon??)

2) followed by a letter (if you care to send in a formal statement). If possible, we would like this letter by COB Tuesday, October 12, 2010 (scanned and sent via email to me). The letter should be addressed to:

Mr. Joseph A. Main

Assistant Secretary of Labor

Mine Safety and Health Administration

1100 Wilson Boulevard

Arlington, VA 22209-3939

3) press availability. If yes, I will provide your contact information to Amy Louviere, our public affairs director, and she may line up media interviews with local media outlets or provide your contact info to the journalist(s) for general comments.

(more…)