"Other Health Standards Are MSHA's Hot Buttons In 1999," Crowell & Moring Mining Law Monitor
Author: Edward M. Green.
As the new year begins, MSHA's push to increase health protections for miners not only continues as the rulemaking priority of the agency, but also the pressure to increase MSHA activities in this area has significantly increased through litigation brought by the United Mine Workers of America ("UMWA"). Thus, it is clear that in the coming months there will be important debates between MSHA, the mining industry, and organized labor about the regulation of diesel particulate matter ("DPM") in underground coal and metal-nonmetal mines, occupational noise exposures in all mines, respirable coal mine dust, hazard communication, and diesel exhaust gases such as carbon monoxide ("CO") and nitrogen dioxide ("NO2").
As in any MSHA rulemaking, the agency will have the upper hand in these. Thus, the mining industry must undertake a strong campaign to achieve rational, reasonable, and feasible regulations.
DPM Limitation Proposals
Last spring, MSHA proposed DPM limitation rules for underground coal mines. In essence, MSHA proposed that 18 months after publication of a final rule, any piece of "permissible" diesel-powered equipment operated in an underground coal mine would have to be equipped with a system capable of removing, on average, at least 95% of DPM by mass. Then, 12 more months after that, any "non-permissible piece of heavy duty diesel-powered equipment" would also have to meet the same 95% removal requirement.
On October 29 in a move that, by its early timing, surprised many MSHA observers, MSHA published proposed DPM limitations for underground metal and nonmetal mines. The metal-nonmetal proposal took an entirely different approach: beginning 18 months after the date of publication of the final rule, an operator would be required to limit the concentration of DPM to which miners are exposed by restricting the average 8-hour equivalent fullshift airborne concentration of total carbon, where miners normally work or travel, to 400 micrograms per cubic meter of air. Then, 5 years after publication of the final rule, operators would be required to limit the concentration of DPM to which miners are exposed, to 160 micrograms per cubic meter of air. In addition, the proposal for metal-nonmetal mines set forth procedures and requirements for compliance determinations, DPM control plans, fueling and idling practices, maintenance standards, miner training, and environmental monitoring.
Industry's Reaction -- Proposals Not Feasible
Mining industry reaction to these proposals so far has been that they are neither economically nor technologically feasible, and that MSHA should rethink its entire approach to DPM limitations regulations based on six fundamental principles:
- DPM regulations should be performance-based, and an integrated approach for control of DPM exposures should be allowed;
- DPM exposures should be verifiable, based on the ability to sample them;
- DPM regulations should be technologically and economically feasible;
- DPM regulations should be expressed as exposure limitations, with reasonable periods of time allowed for implementation;
- At this time regulations should not be extended to cover DPM exposures of surface miners; and
- MSHA should keep the public record open on both the coal and metal-nonmetal proposals for the same amount of time to avoid confusion on MSHA's part as to the position of the mining industry.
These latter two points are particularly important to keep the process honest. In the case of surface miners, MSHA has stated in both its coal and metal-nonmetal underground mine proposals that it is not now proposing rules for surface mines. Nevertheless, according to the preamble of both proposals, in production areas where miners work in the open air in close proximity to loader-haulers and trucks powered by older, out-of-tune diesel engines, or other confined spaces where diesel engines are running, concentrations of DPM may exceed those to which rail, trucking, and dock workers are exposed. Although MSHA notes that these problems are currently limited and readily controlled through education and technical assistance, it then proceeds to
emphasize . . . that surface miners are entitled to the same level of protection as other miners, and that the [a]gency's risk assessment indicates that even short term exposures to concentrations of [DPM] . . . may result in serious health problems.
Finally, MSHA concludes that it will
continue to evaluate the hazards of [DPM] exposure at surface mines and will take any necessary action, including regulatory action if warranted, to help the mining community minimize any hazards.
Enter the UMWA?
These statements are a virtual invitation to organized labor to challenge MSHA's decision not to regulate DPM limitations of surface miners, just the way the UMWA is currently suing to compel MSHA to issue regulations limiting the exposure of underground coal miners to diesel exhaust gases such as CO and NO2. That litigation, which had been proceeding at a desultory pace in the D.C. Circuit since being filed in late 1997, was jump-started on December 9 when, one day after oral argument, the court issued an order which has enormous potential implications generally for rulemaking pursuant the Federal Mine Safety and Health Act of 1977, as well as regulation of DPM and diesel exhaust gases in particular. The court stated:
Under Section  of the [Mine Act], the . . . Secretary of Labor has 90 days following the close of the public comment period (or 90 days following the certification of the record of a public hearing) to promulgate final regulations or to explain her reasons for not doing so . . . . The Secretary who has taken no action with respect to the 1989 [air quality] rulemaking [which is the subject of the UMWA litigation], is clearly in violation of the statute.
The court then ordered MSHA to submit a schedule for completing the diesel exhaust gas rulemaking so that the court could make its final determination on whether to "exercise its equitable discretion" to grant the relief sought by the UMWA.
Pursuant to the court's order, on December 23 MSHA filed a remarkable document entitled "The Secretary's Schedule Regarding Rulemaking with Respect to the Diesel Emission Gases and Explanation for that Schedule." That Schedule contemplates completion of necessary data collection by December 1999, and promulgation of a final rule on diesel exhaust gases by December 2001. Interestingly, the schedule states that the "Secretary has no data that underground coal miners are currently suffering material impairment of health from overexposure to the gases emissions in diesel exhaust," that MSHA is "also collecting data measuring metal and nonmetal miners' exposure to the gases in diesel emissions," and that it is "considering rulemaking for gases and diesel exhaust that would apply both to coal mines and to metal and nonmetal mines."
The post-hearing comment period for the underground coal mine DPM proposal is set to expire on February 16, and the underground metal-nonmetal proposal on February 26, although it is certain that MSHA will hold public hearings on the metal-nonmetal proposal and then allow another comment period. The mining industry, however, is urging MSHA to extend the comment period for both proposals because it is apparent that even MSHA no longer holds any stock in its coal proposal (the 95% particulate removal design standard); the metal-nonmetal industry needs time to gather its own data on current DPM exposures so that it can provide MSHA with a technology-based alternative limitation proposal; and, importantly, premature exposure of the public record on either or both rulemakings could subject them to the holding in the D.C. Circuit's December 9 order.
Thus, as the year begins, a true quandary exists in connection with MSHA's efforts to regulate DPM exposure of miners. The outcome is now uncertain, but it is critically important for MSHA and organized labor to recognize that, although the industry vociferously disagrees with the MSHA risk analysis showing substantial adverse health effects to miners resulting from DPM exposures, it is now committed to providing the agency with alternative, technology-based recommendations that will allow reasonable and feasible control of DPM exposures. An important opportunity exists, therefore, for MSHA to work with industry and labor to achieve regulatory results that all parties can support.
Respirable Coal Mine Dust, Occupational Noise Exposures, and Hazard Communication
The Secretary's rulemaking Schedule is also remarkable because it specifically sets forth MSHA's rulemaking priorities concerning pending miner health-related regulations other than DPM limitations.
With regard to respirable coal mine dust regulatory reform, the Schedule states that MSHA:
has given priority to rulemakings aimed at protecting miners from dust overexposure based on data showing that miners continue to suffer material impairment of health as a result of overexposure to dust . . . . The Secretary's rulemakings aimed at protecting miners from dust overexposure include plan verification, X-ray surveillance, continuous dust monitoring, lowering the dust standard, and single-shift sampling.
The Schedule then points out that the plan verification, continuous dust monitoring and dust standard rulemakings are in the "pre-proposal stages," and that the single-shift sampling rule is currently being reproposed. As for occupational noise exposure limitations and hazard communication rules, the Schedule indicates that final rules in these two areas will be promulgated "within the next several months."
Thus, as Davitt McAteer's leadership of MSHA enters into what will likely be its last two years, it is apparent that he regards the establishment of a broader and more stringent array of miner health-related programs and standards as a major portion of his legacy. Whether that legacy can be accomplished remains to be seen. As the mining industry prepares to enter the new millennium, its safety and health professionals recognize the need for improvements in these areas. Substantial disagreement among MSHA and its sister agencies in the Executive Branch, organized labor, and the mining industry exists, however, in connection with the health effects of exposures to DPM, other diesel exhaust gases, respirable coal mine dust, and occupational noise. All agree on the goal of protecting miners from these exposures. Whether a consensus can be forged on how to achieve these goals is the crucial question for government, industry, and labor. Achieving consensus on these topics can set an important precedential pattern for future progress.