Mining Industry Sues MSHA over Asbsestos Rule

Just as the 60-day deadline approached for filing a legal challenge to a new health standard to protect mine workers from asbestos exposure, mining industry trade associations submitted their petitions in federal court.  MSHA's rule was published on February 29, and tick-tock, like clockwork, the National Mining Assoc, the National Stone, Sand & Gravel Assoc (NSSGA) and others filed suits in the 11th Circuit Court of Appeals, requesting judicial review of MSHA's rule.  Under both the OSHA and MSHA statutues, "any person who may be adversely affect by a [newly promulgated] standard" may file a petition in the US Court of Appeals challenging the "validity of the standard."  

These legal challenges to worker health and safety standards are typical---nearly every final OSHA health standard was challenged by some industry association---It's just part of the standard-operating due-process protections afforded hazardous materials to which workers are exposed.  Even in this case, for ASBESTOS, a known carcinogenic and respiratory toxin which has been responsible for the death and disability of hundreds of thousands of individuals, is still granted its "day in court." 

As I wrote previously in "New Asbestos Exposure Limits for US Mine Workers," MSHA issued a health standard on February 29 to reduce the permissible exposure limit for asbestos from 2.0 fibers (per cubic centimeter of air) to 0.1 fibers, a standard that had been on the books since 1978.  Other workers in the US, in contrast, began getting protection from an OSHA asbestos standard in 1971, and it was revised several times over the years and currently stands at 0.1 fiber. 

I also noted:

There is still a vast difference between OSHAâs asbestos standard, and the one issued by MSHA.  This new standard for U.S. mine workers is ONLY an exposure limit, it does not have any of the additional protections afforded to other asbestos-exposed workers, such as protective clothing, hygiene facilities and medical surveillance.  Donât let anyone in the Administration get away with suggestions that mine workers now have a federal workplace health standard on asbestos that is equivalent to every other worker in the country.  It is not.

The two suits filed in the 11th Circuit Court of Appeals ask for judicial review of the rule.  The petition submitted by NYCO Minerals, Ed Simal & Associates, the Industrial Minerals Assoc, and the National Mining Assoc provides no hint of how MSHA was "arbitrary and capricious" (the legal criteria) in promulgating this rule.  The rule took 8 years to complete and there's nothing to it.  Arbitrary and capricious??  Are you pulling my leg?

The petition filed by the Georgia Construction Aggregate Assoc, and the National Stone, Sand & Gravel Association (NSSGA) concedes:

"that the permissible exposure limit (PEL) in the rule is justified by science, conforms the MSHA's standard to strict asbsestos standards set by OSHA and other federal agencies, and will provide much greater assurance that miners will not be exposed to unsafe levels of asbestos in the workplace."

[Excuse me, but let's not ignore the fact that OSHA's (and now MSHA's) PEL does NOT provide a SAFE level of exposure for workers.  The PEL was set based on feasibility, not health, and OSHA acknowledged in its risk assessment that even at 0.1 fiber, workers were still at risk of developing lung cancer and asbestosis.  Maybe the NSSGA and Georgia trade association are receiving bad information from OSHA's former Asst. Secretary John Henshaw.  He thinks there are "safe" levels of asbestos, too.]

Back to the NSSGA and Georgia Construction Aggregate's petition, in which they hint about their problem with MSHA's rule, and why Court review is necessary:

"...the methods used to measure asbestos under the Rule may indicate that asbestos is present in a mine when in fact it is not.  While the preamble to the Rule states that the Rule intends only to regulate asbestiform varieties of six listed minerals, the language of the rule itself opens the door to nonasbestiform minerals being regulated as asbestos." 

 Oh my...this is sounding so, so, so...familiar.

Travel back in time to 1983 when OSHA issued an emergency temporary standard (ETS) to lower the PEL for asbestos and stated that it was considering a change to the definition of an "asbestos fiber."  For years, the definition of "asbestos" related to six specific long, thin, durable, respirable mineral fibers (i.e., chrysotile, amosite, crocidolite, tremolite-asbestos, anthophyllite-asbestos, and actinolite-asbestos.) If another long, thin mineral fiber was identified in the workplace air, but it was not one of these six specific "regulated fibers," then the OSHA standard didn't apply.  

Upon learning that OSHA might consider a more protective definition of "asbestos fiber," W.R. Grace and others feverishly weighed in, hoping to influence the agency's decision.  I supposed W.R. Grace was concerned that some of the long, thin, durable, respirable fibers that were encounted by workers at their vermiculite mine in Libby, Montana might fall under a new "asbestos fiber" definition.  They had all kinds of unique long, thin durable fibers on the mining property---minerals categorized as richterite and gunerite, and some that had gunerite on one end and tremolite on the other.  What if OSHA decided to regulate (and protect workers' health from) some of these long, thin, respirable durable fibers?

And what about other respirable fibers, that are long and thin and composed of mineral fibers, so-called non-asbestiform fibers?

When OSHA's final rule was issued in 1986, both asbestiform and non-asbestiform fibers were regulated because "OSHA determined that there was substantial evidence to support protecting workers" from these materials.  (51 Fed Reg 22612)  The rule was immediately challenged in court by the National Stone Association (now NSSGA, the same one as above) and others.  OSHA granted a stay as it applied to nonasbestiform tremolite, anthophyllite and actinolite, and in 1990 published a notice to officially remove the nonasbestiform varieties of these minerals from OSHA's standard.  Despite testimony from the American Thoracic Society concerning the health risks associated with nonasbestiform tremolite, OSHA switched sides and determined that a regulation to protect workers from these materials was not warranted.  (57 Fed Reg 24310)

By this time, the W.R. Grace vermiculite mine and processing plant in Libby, Montana was closed.  The effects of the asbestos-fiber containing vermiculite, however, were lingering in the town and in the lungs of its residents.  Despite W.R. Grace's claims that the long, thin, durable respirable fibers were not hazardous, hundreds of individuals were disabled from asbestos-related respiratory diseases.  A series of investigative reports by the Seattle PI's Andrew Schneider brought national attention to tragedy in Libby Montana.  Government agencies, like EPA and ATSDR were called in to assist in Libby, while others were answering questions about the adequacy of their response years earlier to the asbestos contamination.  The newspaper accounts and a report for the U.S. Department of Labor's Inspector General compelled MSHA to propose a standard to protect mine workers from asbestos exposure.  (Yes, the very same standard this is being challenged now in court.)

Even during MSHA's rulemaking on this recently issued asbestos standard, a law firm representing some mine operators said:

"Some members of the mining industry have expressed concern that the MSHA rulemaking will result in revisiting the debate over OSHA's proposal in the late 1980's to regulate the non-asbestiform varieties of asbestos.  One potential issue is the regulation of fibers with no known health effectsâ¦"   (Jackson & Kelly, PLLC, OSH Update, 10(1): 2002)

Some issues never die, do they?  Even when we have much more evidence demonstrating the health risks associated with long, thin, durable respirable fibers (here and here), some with economic interests want to engage in the fiber debate again.  But we know: it's not really about fibers or about science. 

It's about who pays: do employers pay for preventive action, or do workers pay with their health?   So far, workers have been paying, and paying too much.

Celeste Monforton, MPH is with SKAPP at the George Washington University School of Public Health.  She worked at the US Dept of Labor at OSHA and MSHA from 1991-2001.