Publications

"Miner Health Issues Front and Center,"

1996

Author: Edward M. Green.

Since enactment of the Federal Mine Safety and Health Act of 1977 (and its predecessors - the Federal Coal Mine Health and Safety Act of 1969 and the 1966 Federal Metal and Nonmetallic Mine Safety Act), much of the focus of industry, labor, and government has been on the safety aspects of the law. Now, however, the emphasis has shifted to miner health issues, especially in the area of new regulatory initiatives. In this regard, an exceptional phenomenon occurred during the Presidential campaign: while it is generally true that, beginning in the spring prior to a Presidential election, Executive Branch agencies avoid controversial actions, in this particular election cycle the Mine Safety and Health Administration ("MSHA") had a number of controversial rulemakings underway. These include:

  • Final regulations published in the Federal Register for October 25 regarding approval, exhaust gas monitoring, and safety requirements for the use of diesel-powered equipment in underground coal mines (these rules will have important precedential effects for surface coal mines and metal-nonmetal mines as well); and
  • A proposed new noise standard which would affect all mining operations (this proposal is currently awaiting final clearance at the Office of Management and Budget prior to its publication in the Federal Register, probably by the end of 1996).

In addition, MSHA is busily at work developing new rules for respirable coal mine dust and diesel particulate in all mines and is increasing its activities in connection with the exposure of miners to crystalline silica.

MSHA's increased interest in miner health issues will be further augmented by the activities of the National Institute for Occupational Safety and Health ("NIOSH") because NIOSH has just received an infusion of $32 million from Congress, which has decided to place the remnant mine safety and health research programs of the now defunct Bureau of Mines at NIOSH. NIOSH has already announced that much of this funding will be spent on miner health issues.

Here is a brief rundown on the status of these key miner health issues and what developments can be expected.

Diesels in Underground Coal Mines

The new diesel rules for underground coal mines consist of a 122-page Federal Register document comprising of 92 pages of "preamble" and 30 pages of the regulations themselves. The new regulations contain approval requirements for diesel engines intended for use in underground coal mines and for diesel power packages intended for use in areas of underground coal mines where permissible electric equipment is required. Diesel-powered equipment currently used in underground coal mines must be upgraded to meet these requirements by October 25, 1999. The new regulations also set out requirements for diesel exhaust gas monitoring. Importantly, the regulations establish an "action level" so that, where concentrations of carbon monoxide and nitrogen dioxide exceed 50 percent of the exposure limit, operators will be required to take immediate action to reduce such concentration. The regulations also establish: new ventilation requirements for mines using diesel-powered equipment; standards for the storage, transportation, and use of diesel fuel, fire suppression systems for diesel fuel storage facilities and diesel-powered equipment, and maintenance of diesel-powered equipment; and training and qualification provisions for persons maintaining such equipment. Generally speaking, these new regulations take effect on April 25, 1997, although additional time is permitted for phase-in of many requirements.

In many respects, these new diesel rules appear to be favorable to industry, incorporating many best practices currently in use. What will be interesting to watch for in the near term is what problems industry analysts may find buried in the details of these regulations and whether the United Mine Workers of America ("UMWA") (traditionally opposed to the use of diesel-powered equipment in underground coal mines) finds the new regulations objectionable. It would not be surprising if industry or, more likely, the UMWA were to file a judicial challenge to these final rules. Such a lawsuit would have to be initiated by December 23, 1996.

Noise

The soon to be proposed noise standard also is a massive document, we are advised, consisting of hundreds of typewritten pages. The proposal, which will cover all mines - both coal and metal/nonmetal, and underground and surface mines - retains the current 90-dBA exposure limit during an 8-hour shift. We understand, however, that new "action levels" for exposures lower than 90-dBA will be set, and the actions required for such exposures will be more comprehensive than under existing regulations.

NIOSH is a player in the noise arena too, having issued a draft criteria document for occupational noise exposure earlier this summer and having held a two-day public meeting on the draft on June 20 and 21. The NIOSH draft was severely criticized at this meeting, but it can be expected that NIOSH will weigh in heavily on the upcoming MSHA noise proposal.

Diesel Particulate

MSHA will propose, probably sometime during the first half of 1997, a diesel particulate standard that will cover all mining operations. The questions of whether diesel particulate presents any significant health problems (especially the issue of whether diesel particulate is a carcinogen), how to measure diesel particulate, and how to control particulate emissions have yet to be resolved in any definitive way. MSHA, however, has publicly stated that it intends to carry out a rulemaking on this issue. Indeed, this past January, at a workshop on diesel exhaust held in San Francisco, MSHA deputy assistant secretary Andrea Hricko stated that MSHA "is in the unenviable spot of having what is believed to be the most heavily exposed workers in the U.S. when it comes to diesel particulate matter. And of being the 'first kid on the block' to be moving toward a rule to protect a group of American workers from risk." Referencing the MSHA-Bureau of Mines sponsored workshops held in the fall of 1995, Ms. Hricko stated that:

The biggest debate at the workshops was whether or not diesel exhaust causes lung cancer and whether MSHA should move to regulate exposures . . . . [W]hat emerged at the workshop was a general recognition and agreement that a health problem seems to exist with the current high levels of diesel exhaust exposure in the mines.

Answering her own question as to "how does a regulatory agency proceed if the science is not crystal-clear in terms of the exact quantitative risk - that is, exactly how low the exposures need to go to protect the workers," Ms. Hricko concluded that:

We believe that we have to take the best science available and move forward in some way to reducing exposures . . . . As a body of evidence, [the data] appear to point toward an association of diesel exhaust exposure and lung cancer.

Crystalline Silica

This is an extremely active area in which: (1) MSHA has initiated a silica alert for underground coal mines; (2) MSHA, NIOSH, and the Occupational Safety and Health Administration ("OSHA") are planning a silicosis prevention conference tentatively set for next spring (to be structured as a "best practices" forum); and (3) a national public education campaign, "If It's Silica, It's Not Just Dust," aimed at preventing silicosis, has been initiated. This public education campaign was kicked off by Labor Secretary Robert Reich at a well-attended press conference held on October 31 in Washington, D.C. The effort is being sponsored jointly with the American Lung Association and NIOSH, and with cooperation from the AFL-CIO, as well as producers of industrial sand and construction aggregates.

As for silica regulations, MSHA must consider the question of whether to lower its current standard for exposure to silica because NIOSH, in a criteria document (published in September 1995 and subsequently formally presented to the Secretary of Labor) has recommended that the silica standard be cut in half to a level of 50 mg/m3.

Respirable Coal Mine Dust

That same NIOSH criteria document also recommended that the Secretary of Labor reduce the current respirable coal mine dust standard by 50 percent to a 1 mg/m3 limit and endorsed the use of single full-shift samples for compliance. MSHA and NIOSH have been considering this latter issue since early 1994 when the agencies announced their intention to overturn a 1972 finding that single full- shift samples will not, after applying valid statistical techniques to such measurements, accurately represent average concentrations of respirable dust in the mine atmosphere during each shift.

Also involved in these issues is the Secretary of Labor's "Advisory Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers." That committee, which began its deliberations earlier this year, has now completed its work, and its report should be made public soon. While the committee has not wholly endorsed NIOSH's recommendations to lower the respirable coal mine dust standard (or, for that matter, the silica standard), it has endorsed the use of single full-shift samples for compliance purposes. Look for MSHA and NIOSH to announce officially in the Federal Register early next year their support of single full-shift sampling for compliance, and it can be expected that MSHA will propose a major revamping of the respirable dust sampling program during the first half of 1997.

ACGIH and IARC

As if MSHA's activities were not enough to bring the platter of miner health issues full to overflowing, there are organizations like the American Conference of Governmental Industrial Hygienists ("ACGIH") and the International Agency for Research on Cancer ("IARC"). The ACGIH, located in Cincinnati, Ohio, is a professional society whose members primarily are industrial hygienists employed by federal, state, and local governments and universities. The principal work of the ACGIH is carried out by committees, one of the best known of which is the Committee on Threshold Limit Values for Chemical Substances and Physical Agents (the "TLV Committee"). This committee develops an annual list of TLVs (exposure limits) with a separate publication documenting these values. For example, ACGIH is currently considering TLVs for crystalline silica and diesel particulate.

As for IARC, that organization, headquartered in Lyons, France, is a branch of the United Nations' World Health Organization, and its purpose is to evaluate chemicals and cancer risks. It holds working group meetings in Lyons several times each year. These meetings usually focus on a specific substance or group of substances, and topics for study are selected on the basis of two criteria: evidence of human exposure and some evidence or suspicion of carcinogenicity. This October, an IARC working group concluded that "[i]nhaled crystalline silica in the form of quartz or cristabolite from occupational sources is carcinogenic to humans." It assigned crystalline silica in those forms the IARC designation meaning that sufficient evidence of carcinogenicity in humans has been found. The regulatory implications of that determination are likely to be dramatic.

Conclusion

It should be apparent to readers that mining companies and their professional health personnel will have their hands full for the next several years as the impacts of all these activities unfold. Only by participating in the regulatory process effectively will the industry and individual mining companies be able to influence outcomes. It will be essential to utilize the best scientific, medical, engineering, and legal expertise available and even then the road ahead is daunting. It is a road, however, on which there is no choice but to travel. The "health" of the industry is at stake.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922
Email: egreen@crowell.com