Earlier this month, the Appalachian Citizens’ Law Center (ACLC) sent a petition to the Mine Safety and Health Administration (MSHA) urging the agency to revise its regulations on respirable coal mine dust to better protect mine workers from pneumoconiosis and other disabling respiratory ailments. The ACLC’s motto is “Working for Justice in the Appalachian Coalfields.” The ACLC’s petition is just the latest in a long list of calls on MSHA to put an end to black lung and silicosis—diseases that are 100% preventable. I personally believe there should be no higher regulatory priority for Secretary Solis’ MSHA than new rules to prevent every mine worker in our country—-whether coal miners or quarry workers—from developing dust-related health problems.
ACLC’s Director, Steve Sanders, explained their motivation for petitioning MSHA:
“We’ve represented miners for years in individual black lung benefits claims. It’s very upsetting to have miners who worked all of their lives under the current dust levels develop disabling black lung disease. The disease is preventable – it results from breathing too much dust. The bottom line is the changes we’re seeking will result in better protection for coal miners from this disease.”
In 1995, NIOSH recommended that workers’ exposure to respirable coal mine dust be limited to 1 mg/m3 TWA concentration for up to 10 hours/day over a 40 hour work week. Even at the 1.0 mg/m3 level, NIOSH estimated dozens of new cases of coal workers’ pneumoconiosis (CWP) and progressive massive fibrosis (PMF). Fourteen years after NIOSH made its recommendation, MSHA’s PEL for respirable coal dust remains at 2 mg/m3. It really is time for MSHA to propose a health protective exposure limit, at least as low as 1.0 mg/m3.
Several dozen physicians and public health scientists (including me) sent a letter to MSHA in support of the ACLC’s petition, noting:
“According to a 2008 report by NIOSH, the prevalence of CWP has more than doubled since 1995 among coal miners with more than 20 years of exposure. NIOSH has also identified advanced cases of respiratory disease in working U.S. miners as young as 39 years of age.”
We wrote to acting head of MSHA, Dr. Greg Wagner, because we wanted him to know that the public health community will stand firmly with him when MSHA proposes a bold health standard to protect miners from respirable dust.
The ACLC has tried previously to force MSHA to act on this issue. Last year, the ACLC filed a lawsuit requesting a federal court judge to compel MSHA to issue a health standard to prevent miners from developing black lung disease. The Petition for Writ of Mandamus (Howard v. Chao) argued that Congress intended, through the Federal Coal Mine Health & Safety Act of 1969 (amended 1977), for MSHA to promulgate regulations to prevent new cases of coal workers pnuemoconiosis and other illnesses related to miners’ exposure to respirable coal mine dust. (See previous post.) ACLC argued, among other things, that the Secretary of Labor (through MSHA) had breached her duty to promulgate rules to protect miners from dust-related disease, which had been “unlawfully withheld or unreasonably delayed.”
The Secretary of Labor (and MSHA) asked the court to dismiss the case, saying that the petitioner had not exhausted the available administrative remedies. The National Mining Association filed an amicus brief, asking the court to reject the ACLC’s request, and saying that the decision should be MSHA’s, not the courts, on whether a new exposures limits were needed. [They also said they weren't opposed to a new rule, as long as it didn't lower the current exposure limit.]
In July 2009, the judges ruled against ACLC. The judges said that ACLC had failed to exhaust all administrative remedies to compel MSHA to act, including petitioning MSHA to lower the PEL. Looking back, it seems to me that sending a petition to Labor Secretary Chao urging her to issue tough health protective rules on coal-related lung disease would have been a waste of time. At one point in Mrs. Chao’s tenure, she actually removed issues related to preventing CWP from her regulatory agenda. What would have been the point of ACLC petitioning her MSHA?
But, the federal judges saw it differently, giving deference to administrative procedure and agency expertise. Their July 6, 2009 decision puts the issue of preventing CWP and silicosis squarely in Secretary Solis and MSHA’s lap. It was disappointing to read in the Secretary’s first regulatory agenda (May 2009) that proposing rules on respirable coal dust and silica were not planned until April 2011. With Dr. Wagner’s leadership at MSHA, I suspect that improvements will now be on a much faster track.
Celeste Monforton, DrPH, MPH is an assistant research professor at the George Washington University School of Public Health. She worked at MSHA from 1996-2001 when the agency proposed major revisions to its regulations on respirable coal dust. The changes were not finalized before the Clinton Administration left office. She wonders how prevalence and incidence rates of CWP, PMF and other health problems might be different today and in the future had those rules been put in place 8 years ago.