April 22, 2014 Celeste Monforton, DrPH, MPH 1Comment

[Updated: 3 hours after I posted it. See below]

Black lung—-now referred to by experts as coal mine dust lung disease (CMDLD)— was back in the news last week courtesy of the Pulitzer Prize. The Center for Public Integrity’s Chris Hamby received the prestigious recognition for his reporting on the steep hurdles faced by coal miners who seek black lung disability compensation. Hamby’s piece focused on the back end of the problem. On the front end is preventing CMDLD in the first place. Coal miners wouldn’t have to maneuver the legal obstacle course for disability benefits if CMDLD became a thing of the past in the U.S.

The Labor Department’s Mine Safety and Health Administration (MSHA) proposed a new regulation in October 2010 designed to set the course for doing just that: eliminating CMDLD. The disease is 100 percent preventable if coal mine operators implement and maintain effective dust controls. MSHA took public comment on the proposal for seven months. Last August, MSHA submitted its final regulation to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. There it sits.

Just a couple of months earlier, Howard Shelanski, JD, PhD was confirmed by the Senate to be the OIRA director. OIRA is responsible for reviewing proposed and final regulations, such as MSHA’s regulation to prevent CMDLD. The OIRA reviews, as prescribed in Executive Order 12866, are supposed to take no more than 90 days (with no more than a 45 day extension.) MSHA’s rule to address respirable coal dust has been stuck in OIRA, under Dr. Shelanski’s watch, for eight months (240 days.)

Habitual delay in regulatory reviews by OIRA is not a new problem. Shelanski was probed about it during his confirmation hearing. Senator Carl Levin (D-MI) noted:

“We have now a situation where delays of agencies’ [rules] are chronic. They [delays] fundamentally undermine the agencies’ ability to effectively execute the responsibilities that those agencies have. Under the Executive Order which is in effect, EO 12866, OIRA has 90 days to review a draft of a proposed or final rule, there’s one 30 day extension that’s available. As of May 14, 87 rules have been under review for more than 90 days, 51 have been under review for more than a year.”

Nominee Shelanski responded by insisting that timeliness of the reviews was one of his top three priorities. Specifically, he said his goal was

“to ensure that regulatory review at OIRA occurs in as timely a manner as possible.”

Levin prodded, by asking Shelanski his plan to meet those deadlines. The nominee responded:

“I absolutely share the concern you just raised about timeliness. …I recognized that EO 12866 establishes the initial 90 day review process, and it would be one of my highest priorities, should I be confirmed as Administrator, to try to improve the timeliness.”

Looking back, when Dr. Shelanski told Senator Levin he would “try to improve the timeliness,” I wish the Senator would have channeled Yoda and said:

“Do or do not…there is no try.”

How much longer will the Obama Administration take to issue a regulation to prevent miners from developing CMDLD?

[Update 4/22/14 (3 hours after I posted the above):  Labor Secretary Tom Perez, MSHA chief Joe Main, and NIOSH director John Howard will be announcing the release of new regulations designed to protect miners from developing coal mine dust lung disease. I’m eager to read the final rule, and will report on The Pump Handle what the new requirements will be for coal mine operators.]


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