Coal mining industry insisted on new dust sampling technology, now they don’t want MSHA to use it

It’s too late for Ronald Martin of Dema, Kentucky. “I’m in last stage of black lung,” he wrote in shaky script, “please help the miners so they won’t suffer like I suffer. I can’t breathe but a little.” Mr. Martin sent his note to the Labor Department’s Mine Safety and Health Administration (MSHA) to comment on the agency’s proposed rule to reduce workers’ exposure to respirable coal mine dust—the dust that damaged his lungs so severely. Other coal miners also sent their comments to MSHA, urging the agency to put a more protective regulation in place as soon as possible to prevent younger miners from developing black lung disease.

The major US coal mining companies, in contrast, strongly object to MSHA’s proposed rule. In their written comments and public testimony they use all the stale, typical terms to criticize the rule, saying it’s flawed, counterproductive, arbitrary, and irrational. They tell MSHA to withdraw the proposal, but still insist they have miners’ interests in mind and are dedicated to providing safe working conditions. The coal industry’s hypocrisy is especially apparent when it comes to the proposal’s provisions concerning a specially-designed continuous respirable dust monitor. This 6-pound device can be worn by a mine worker to provide him with a continuous readout of his cumulative average exposure to respirable coal dust. Development of the device dates back at least 30 years, and coal mine operators have insisted in nearly as many years that any new regulation had to incorporate this technology. That was their story and they were sticking with it.

When I worked at MSHA in the late 1990′s, the mining industry vigorously opposed a similar proposal to address the deficiencies in the current rules to protect miners from black lung. Among their many complaints, the proposed regulation didn’t include this continuous dust sampling technology. (That proposal from July 2000 didn’t mandate the devices because they weren’t commercially available.) In addition to voicing their objections through the public comment process, leaders of the National Mining Association (NMA) and the Bituminous Coal Operators Association (BCOA) wrote to Labor Secretary Alexis Herman imploring her to intervene and stop the proposal. Nearly 11 years ago they wrote:

Great progress has been made in developing technology that will make the entire dust sampling process truly responsive by giving real time results that will mean so much for coal miners’ health. However, despite this progress, MSHA is rushing to complete a rulemaking initiated in July of this year by publishing final rules that will continue reliance on outdated sarnpling methodology. We believe it is in the interest of our nation’s coal miner that you delay the implementation of these rules so that the new technology can be properly addressed.

…We have been involved with MSHA and NIOSH in a joint effort to develop new technology that will provide dust exposure results in real time rather than after the two week delay that is currently the case. …Madam Secretary, we implore you to intervene and stop the implementation of these regulations. If they are not withdrawn, we will all have missed an opportunity to bring real time sampling technology to the coal mining industry that could lead to the elimination of pneumoconiosis.” [emphasis added]

Not only is that new truly-responsive, real-time sampling technology now available, but in the 11 years since writing this letter, the industry touted their support for it. The NMA and BCOA included their names on awards promoting the technology, such as R&D Magazine’s R&D 100 award in 2004, and the Department of Health & Human Services’ (HHS) HHSInnovates award in 2010. The documentation for the 2010 award suggests the innovation was not only the technology itself, but the unique partnership formed with industry, labor, the manufacturer and the regulatory agency (MSHA).

“Their involvement [of stakeholders] in the developmental stage of the work gave them substantial buy-in as their ideas took form in the final product.”

“Buy-in” with coal operators? Not so fast.

Now that the device is proven reliable, accurate and mine worthy—-and more than 270 have been sold commercially—-the mining industry is fighting MSHA’s plan to incorporate them in its regulation. Murray Energy’s Robert Murray said the devices are “unproven, unreliable, subject to tampering, and fail to protect miners.” Anthony Bumbico of Arch Coal raised a number of objections to the devices, called continuous personal dust monitors (CPDM), saying

“it is not ready to be deployed for compliance purposes. Nor is it ready for daily exposure to the rugged working conditions present in underground coal mines.”

Mr. Bumbico’s plan is really bold:

“…to work together to develop the next generation of the CPDM.”

I get it. Let’s keep this taxpayer funded research project going for another 5-10 years, and keep these devices out of mine inspectors’ hands. I doubt this is what Mr. Ronald Martin of Dema, Kentucky had in mind when he wrote “please help the miners so they won’t suffer like I suffer.”

Despite the claims made by the mining industry about problems with the CPDM, the scientific data gathered and analyses conducted demonstrate the device is equivalent (if not better) than the sampling devices used currently by mine inspectors. The National Institute for Occupational Safety and Health (NIOSH) is responsible for approving the devices used to measure concentrations of respirable coal dust (Section 202(e)). The agency’s lead official for mine safety research wrote to MSHA earlier this year:

“Scientific studies conducted by NIOSH and detailed in this response demonstrate the suitability of the CPDM to perform as a compliance device. The critical characteristics that define the CPDM’s readiness such as bias, precision, reliability, and mine-worthiness have been supported in peer review documentation. None of the evidence presented at the public hearings changes these findings.”

The NMA’s Bruce Watzman, however, made it abundantly clear that the mining industry doesn’t want MSHA inspectors using the device to enforce permissible exposure limits for respirable coal dust.

“The CPDM was never intended to be used as a single-shift compliance device,” he wrote, “and this approach should be scrapped in its entirety.”

It’s strange to read such hostility, especially from an organization that boasted: “NMA, Bruce Watzman Honored by HHS for Personal Dust Monitor,” when awarded last year the HHSInnovate prize. At the time, Mr. Watzman’s said:

“The CPDM has the potential to revolutionize miner health, and NMA was pleased to participate in this very important team effort.”

I guess as long as the revolution doesn’t involve MSHA using these devices to enforce new standards to eliminate black lung disease. The coal industry—not one to scrimp on congressional lobbying—- is using its powerful influence on Capitol Hill to make sure it gets its wish. The House Appropriations Committee has drafted a funding bill that contains this language:

“None of the funds made available by this Act may be used to continue the development of or to promulgate, administer, enforce, or otherwise implement the Lowering Miners’ Exposure to Coal Mine Dust, Including Continuous Personal Dust Monitors regulation being developed by MSHA.”

With that, coal miner and black lung victim Ronald Martin’s wish is completely ignored.