Coal Age

APR 2019

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48 www.coalage.com April 2019 legally speaking Prepare for Additional Coal Dust Scrutiny by erik dullea "Each case of ad- vanced black lung disease is an entire- ly preventable trag- edy, and represents mine operators' un- willingness to ade- quately control mine dust exposures, and safety regulators failure to set, monitor and enforce standards nec- essary to protect miners." In 2018 when Congressman Bob- by Scott gave that quote, he was not yet chairman of the House Commit- tee on Education and Labor. Today, he has the power to hold public hear- ings on dust exposure. Congressman Scott's words, regardless of his com- mittee position, along with recent criminal indictments of coal mine managers, show the importance of a compliant dust-monitoring program. During March meetings on Capitol Hill with clients from the metal-non- metal industry, I noticed the congres- sional staffers did not appreciate the differences between coal mines, hard rock mines, quarries or sand and grav- el pits. Nevertheless, multiple staffers brought up black lung disease — even though the operators at the meetings did not mine coal. Clearly, black lung and its causes are a concern for Con- gress. What's motivating its concern? As the diagnoses are increasing, the ages of affected miners are de- creasing. The National Institute for Oc- cupational Safety and Health (NIOSH) discovered a large cluster of advanced black lung disease in five Appalachian states, and unlike historical black lung cases, today's diagnoses involve younger miners with fewer years of mining experience. NIOSH believes the earlier onset is an indication of a severe and rapidly progressive variant of the disease. The potential causes for this form of the disease vary signifi- cantly, ranging from improved detec- tion; increased efficiency of mining equipment that in turn produces finer dust; longer shifts resulting in longer daily exposures; to production efforts occurring in thinner coal seams that create higher concentrations of rock dust and silica mixed with the coal dust. But those factors may not mean much to Congress, which may be more motivated by politics and timing. President Donald Trump made many campaign promises about helping the coal industry and coal miners and one of those initiatives in- cluded his executive order to remove two regulations for every regulation promulgated in the future. Labor and safety advocates argue the president's intention to roll back regulations will have a detrimental effect on miner safety. MSHA disagrees. Phase III of the Coal Dust Rule, which further reduced the dust con- centration limits, went into effect in August 2016. Assistant Secretary Da- vid Zatezalo told Congress the Coal Dust Rule significantly contributed to the reduced exposure, and when an- swering questions from Congressman Scott, Zatezalo testified he did not in- tend to roll back the Coal Dust Rule. In a written response to Nation- al Public Radio, Zatezalo stated that MSHA's July 9, 2018, Request for Infor- mation (RFI) solicits stakeholder com- ments to assess the impact of the May 2014 regulations because the agency is "… planning to collect feedback on the rule from stakeholders, which was both a commitment previously made by MSHA, and a directive from Presi- dent Trump, who strongly supports America's miners." The comment pe- riod ends on July 9. Consistent with that message, the U.S. Attorney's office charged nine managers at a coal mine for conspiracy to defraud MSHA re- garding the coal dust sampling results collected at two Kentucky coal mines. The indictments allege the man - agers removed or repositioned testing devices in cleaner air, ordered miners to work in dusty environments with- out testing devices, and ran the devic- es in clean air before and after shifts to skew the data. Zatezalo said, "Com- pliance with dust sampling programs is crucial to protecting miners against respiratory illness," and "deliberate disregard for the safety and health regulations that protect workers war- rants the most severe penalties al- lowed under the law." Operators should take his com- ments seriously, but Congress could pressure MSHA to alter its enforce- ment further toward dust monitoring. In 2018, Congressman Scott said, "MSHA should not bend to pressure from well-connected coal mine ex- ecutives to roll back the regulations. [MSHA] cannot keep looking the other way while the burden of this prevent- able disease grows." There are several tools already in MSHA's enforcement toolbox the agency can use for dust sampling and testing compliance: • Rigid use of advance notice rules to proceed directly to dust moni- toring locations; • Detailed audits and examinations of sampling and testing data; • Interview hourly miners and union representatives about actual moni- toring and testing procedures; and • Utilizing the "One MSHA" ini- tiative to have MNM inspectors accompany coal inspectors and focus solely on dust issues. In this regulatory and political en- vironment, whether the enforcement is motivated by science or political perception, supervisors must "dot the I's and cross the T's" to ensure their dust programs are compliant. Failure to do so risks being the sacrificial lamb on the altar of agency enforcement. Erik Dullea is a partner with Husch Blackwell. He can be reached at erik. dullea@huschblackwell.com.

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