90 days and counting for Labor Department rule to prevent black lung disease

This week will mark the 90-day point of the Labor Department submitting for White House review one of its top priority regulations to protect coal miners’ health. It’s a rule to prevent black lung disease. The director of the office that conducts those reviews, Howard Shelanski, promised earlier this year during his confirmation hearing that timely review of agencies’ regulations would be a top priority. Mr. Shelanski said:

“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, and the notice, and the certainty that lends to the regulatory environment.”

Shelanski’s predecessor—Presidant Obama’s friend Cass Sunstein–has a record-breaking and dismal track record for meeting the review deadlines.

The Department’s Mine Safety and Health Administration (MSHA) proposed a rule in October 2010 designed to prevent coal workers’ pneumoconiosis (CWP). Black lung (a.k.a. CWP) is a chronic, fibrotic and irreversible respiratory disease caused by inhaling respirable coal mine dust (comprised of coal and rock.) It’s a national disgrace that U.S. coal miners’ health is still threatened by it. CWP is 100 percent preventable if coal mine operators see to it that effective dust controls are installed and maintained.

MSHA proposed its new regulations in October 2010.  A public comment period and public hearings lasted until May 31, 2011. Among the proposed provisions, the rule would reduce the permissible exposure limit for respirable coal dust from 2.0 mg/m3 to 1.0 mg/m3 (phased-in over 2 years) and change the way miners’ exposure to coal dust is measured from an average over five shifts to a single, full-shift sample, which is consistent with standard industrial hygiene practice. Importantly, the rule proposed to monitor coal dust levels in mines based on typical production levels, not when mine operators game the system when the MSHA inspector is present by conveniently slowing down production which creates less dust.

Besides the well-established epidemiological evidence that the current permissible exposure limit for coal dust is not protective, the reality of black lung disease was reinforced in findings from the April 2010 Upper Big Branch (UBB) disaster. Among the deceased UBB miners, 24 of the 29 had enough lung tissue to be examined by a pathologist, and 71% of these men had evidence of CWP. The 17 UBB miners with fibrotic disease (which is not associated in any way with cigarette smoking) ranged in age from 25 to 61 years. Nine of the men—the older ones—had more than 30 years of mining experience (i.e., exposure to respirable dust), but there were also five victims with fibrosis who had less than 10 years of mining experience. In October 2010, the Labor Department issued its proposed rule to address respirable coal dust.

After reviewing and considering feedback from affected parties, the Labor Department submitted MSHA’s final rules to prevent black lung disease to the White House’s Office of Information and Regulatory Affairs (OIRA) on August 21, 2013. This week will mark the end of the 90-day review period, established in Executive Order 12866.

Will Mr. Shelanski make good on his promise to meet deadlines?  Or later this week will we see the on-line notation “Review Extended,” which will tell us it is business as usual at OIRA for new protective worker safety regulations.

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