MSHA's too busy to tackle black lung

During a recent one-on-one interview with the Charleston Gazette, MSHA chief Richard Stickler said his agency will not be issuing more protective health standards to protect miners from coal workers' pnuemoconiosis during his tenure.  In Ken Ward's article (Sept 14), Stickler says:

"There's no way I'm going to get that done with what I have on my plate."

So, here we are, 12 years after a federal advisory committee recommended an overhaul of the regulations to protect coal miners from developing black lung disease, and we are still no closer to having a more health-protective rule on the books.

Ward's story continues:

"Stickler said that he agrees the coal-dust limit should be tightened. But, he said, the agency has been busy implementing various other reforms ordered by Congress after the Sago Mine disaster and a string of other 2006 accidents. 'I've got the MINER Act to implement, and can't put more items on that regulatory agenda.  So there's no way I'm going to tackle respirable dust.'"

Mr. Stickler doesn't elaborate on why he can't "put more items on that regulatory agenda."  Is it that he isn't comfortable asking for the coal industry to institute more protections for their workers?  Is it that the Secretary of Labor limits the number of items on the Department's regulatory agenda?   Is it the White House's decision?

Given the federal government's failure to implement more stringent coal-dust regulations, in March of this year, a coal miner from eastern Kentucky filed a law suit requesting a federal court judge to compel MSHA to issue a coal dust rule.  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), MSHA to promulgate regulations to prevent new cases of coal workers pnuemoconiosis, progressive massive fibrosis and other  illnesses related to minersâ exposure to respirable coal mine dust. 

The Department of Labor filed a motion with the Court to dismiss the miner's petition, arguing that he had not exhausted all of his administrative remedies.  DOL argues that the coal miner, Scott Howard, should have first filed a petition for rulemaking with MSHA,  otherwise he is trying to "circumvent the administrative process" and "undermine agency functions."  Hmm....the miner should have filed a petition for rulemaking today, when in 1996, a federal advisory committee already recommended that the Secretary develop more protective rules on coal-mine dust? 

Coal miner Scott Howard's attorney did not let DOL get off too easy with their motion to dismiss, filing a response to the court just a few days later.   The attorney, Nathan Fetty, of the Appalachian Center for the Economy and the Environment wrote:

"With the substance of the NIOSH [1995 criteria document] and advisory committee reports before the Secretary, and with action in response to those reports languishing for so long, there would be nothing gained by requiring that Mr. Howard first submit a petition for rulemaking to the Secretary citing the same findings of those expert bodies.  The policies underlying the exhaustion doctrine (e.g., giving the agency an opportunity to consider new information, bring agency expertise to bear) would not be served by requiring Mr. Howard to submit a petition for rulemaking citing the same information on which the agency has refused to act for over a decade.  ...The relevant information is already before the Secretary.  Despite this information the Secretary has not acted.  Clearly, a petition for rulemaking would have been futile." (emphasis added)

Mr. Howard, Mr. Fetty and others who live and work in the coal-mining regions of our country understand that the promise of the 1969 Coal Act has not been met.  A June 2008 series in the Louisville-Courier Journal gave us the voices and faces of miners who are suffering from coal workersâ pneumoconiosis.  In Black Lung: Dust Hasnât Settled on Deadly Disease we read about 40- and 50-year old coal miners who are now suffering with the disabling lung disease.  Mr. Danny Hall, 56, for example, who is still severely impaired despite receiving a lung transplant says âif I had to do over, I wouldnât ever go into coal mining.â

Ralph Dunlop and Laura Unger began their series with: 

âCoal dust has blackened the lungs of miners for hundreds of years, and efforts to end black-lung disease stretch back decades. But in Eastern Kentucky, the disease persists â and is far worse than federal health officials anticipated it would be by now.â

The coal miners featured in the article and the videos include Mark McGowen, 42, who was diagnosed with black lung at age 40, after working 21 years in the mines.  He dumps out his tool belt loaded with coal dust, and talks about the trade-offs of a good-paying job with benefits and health hazards of working in dust so thick âyou couldnât see your hand in front of your face.â  McGowen also laments that 38 years have passed since the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) was passed, a law supposedly designed to prevent miners from developing black lung disease. 

Section 201(a) of the Act says:

"...it is the purpose of this title to provide, to the greatest extent possible, that the working conditions in each underground coal mine are sufficiently free of respirable dust concentrations in the mine atmosphere to permit each miner the opportunity to work underground during the period of his entire adult working life with incurring any disability from pneumoconiosis or any other occupation-related disease during or at the end of such period."

Secretary Chao and Mr. Stickler may be too busy to tackle black lung disease, but it is not too soon for us to ask Mr. McCain and Mr. Obama if they will issue a health standard on coal mine dust in their first year as President.  The year 2009 will mark the 40th anniversary of the Coal Act and it's time the promise of Section 201(a) be fulfilled.