September 21, 2010 Celeste Monforton, DrPH, MPH 0Comment

MSHA announced today that it will be issuing on September 23 an emergency temporary standard (ETS) to improve a practice to prevent coal dust explosions. The rule addresses “rock dusting”—-the decades old practice of generously applying pulverized limestone dust throughout a coal mine to dilute the potential power of a coal dust explosion. As NIOSH’s Man and Teacoach explain:

“…the rock dust disperses, mixes with the coal dust and prevents flame propagation by acting as a thermal inhibitor or heat sink; i.e., the rock dust reduces the flame temperature to the point where devolatilization of the coal particles can no longer occur; thus, the explosion is inhibited.”

Investigators suspect that the deadly blast that killed 29 miners on April 5 at Massey Energy’s Upper Big Branch mine may have been fueled by coal dust.

When the Labor Secretary Hilda Solis issued the Department’s regulatory agenda in May 2010, a revision to MSHA’s rock dust standard was not identified as a rulemaking priority. The agency’s standard, which dates back to 1969, drew the attention however of Congressman George Miller (D-CA). He included revisions to the rock dust standard in H.R. 5663, a worker safety bill he introduced on July 1, 2010. I suspect the Congressman had read Coal Tattoo’s April 13 post reporting that government scientists had warned that existing rock dust standards were inadequate for today’s highly mechanized underground coal mining practices.

Within four months of the disaster, MSHA prepared a proposed change to its rock dust standard. On July 28, 2010, the agency submitted it to OMB for review; it was listed as an “interim final rule.” Although rarely used by OSHA and MSHA, an interim final rule is one that has the full force of law, but interested parties are given an opportunity (or an additional opportunity) to provide their input. Typically, interim final rules are reserved for those regulatory actions that the agency believes will not generate substantive comments—either because it is non-controversial, or because it’s unlikely that any new information added by the public to the rulemaking docket will change the agency’s course of action. MSHA’s announcement today says the agency is issuing an “emergency temporary standard (ETS)”; no mention of an “interim final rule.”

An ETS is a provision in both MSHA’s and OSHA’s statutes that allow the Secretary of Labor to issue a standard when workers are

(1) “are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful” and (2) when the “emergency standard is necessary to protect workers from such danger.”

An ETS takes effect immediately, and serves as the “proposal” about which interested parties may offer comments. Within 6 months, the agency has to issue a final rule that considers and incorporates, as appropriate, the public input.

It’s not clear when the agency, or the Labor Secretary, or the White House, decided to convert the “interim final rule” to an “emergency temporary standard.” The end result is essentially the same—–a new rule on the books right now, and public notice and comment in the months ahead. With the backdrop of the 29 deaths at the Upper Big Branch mine, I’d have chosen to issue an “emergency rule” over an “interim final rule,” too.

This is the third time in four years that MSHA has issued an ETS. All have been in the wake of devastating coal mine disasters. (As I wrote in a post last month, OSHA has not issued an ETS in 30 years.) After the January 2006 Sago mine disaster which killed 12 miners, MSHA issued an ETS on emergency evacuation and supplies (2006) and one on permanent seals of abandoned underground areas (2007). Neither of these emergency rules were challenged by the mining industry.

If a coal mine operators wanted, however, to challenge this latest MSHA action on the rock dust standard, they can do so. Both the OSHA and MSHA statutes give employers the right to request judicial review of an agency action. A coal mine operator might challenge MSHA’s assertion that a “grave” danger exists for miners. I’d disagree, but as Charleston Gazette reporter Ken Ward points out, evidence on the inadequacy of the current rock dust standard has been available to MSHA since at least 2006. More likely, the industry might argue that MSHA is not permitted to use the ETS provisions simply to short-circuit the notice and comment requirements. If pressed, MSHA will have to demonstrate that workers will face grave harm during the six months leading up to the final rule if not for the protections provided by the emergency rule.

In MSHA’s announcement today, the agency says the new rule:

“will require mine operators to increase the total incombustible content of the combined coal dust, rock dust and other dust from 65 to 80 percent in all accessible areas of underground bituminous mines, and an additional 0.4 percent for each 0.1 percent of methane where methane is present in any ventilating current.”

I get a somber feeling knowing that the improvement to the rock dust standard announced today by MSHA would not be taking place if not for the 29 lives lost at the Upper Big Branch mine. A rule issued under these circumstances is easy to defend, even among those who tend to oppose government regulations. A tougher lift for Secretary Solis and MSHA Asst. Secretary Joe Main will be reducing the exposure limits for respirable coal dust and silica—hazards that cause disabling and deadly respiratory diseases. The scientific evidence is no less compelling, in fact, NIOSH said years ago (here, here) that miners and other workers will continue to develop lung and other diseases unless exposure limits are reduced.

With MSHA’s new rule on rock dust, underground coal miners will be better protected from deadly coal dust explosions. It’s time they are also protected from the disabling misery of black lung and silicosis.

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