Coal Age

JUN 2018

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48 June 2018 legally speaking Are Obama Coal Dust Rules Warranted? by henry chajet Major regulatory changes adopted by the President Barack Obama administra- tion targeting the coal industry included dust rules enforced by the Mine Safety and Health Administration (MSHA). Among them were the respirable coal mine dust limit being lowered from 2 milligrams of dust per cubic meter of air (mg/m 3 ) to 1.5 mg/m 3 ; and expensive and complex new dust measurement equipment and proce- dural sampling changes were implement- ed (e.g., personal, continuous monitor use, single-shift sample compliance deter- minations, and increased minimum coal production for dust sampling). In a December 2016 "Coal Mine Re- spirable Dust Control Summit," MSHA reported that more than 99% of 168,880 dust sampling results (August 1, 2014 to October 31, 2016) were in compliance with then-applicable respirable dust limits and that the average respirable dust levels of the dustiest occupations were much lower than the new limits (0.64 mg/m 3 ). In retrospect, does the MSHA data demonstrate that the costly Obama rules were not needed? This point was repeat- edly made by industry experts during rule-making. They advocated focused changes, if any, based on regional coal workers lung disease data, including silica exposure disease risks. MSHA reported from August 1, 2016 to October 31, 2016, mine operators collect- ed 54,029 samples with the new personal, continuous dust sampler, and more than 99% of the results were at or below compli- ance levels. The agency budget report an- ticipated 60,000 respirable coal-dust sam- ples would be analyzed at its Pittsburgh lab in 2018, presumably with the same, almost universal, level of compliance. MSHA reported at the Dust Summit that only 84 samples of the 54,209 con- tinuous personal dust monitor (CPDM) samples were at or above noncompliant levels. MSHA also reported data demon- strating that steeply lower exposures are a continuing historical trend that preceded the new Obama rules. See figure below. Any MSHA review of its dust rules should include a review of its silica sam- pling and analysis data base, and its sili- ca sample collection and lab procedures. Coal dust rules reduce the respirable coal dust limit by the application of a formula, dependent on the percentage silica con- tained in the coal dust sample. MSHA's budget request for full-year 2018 reported it would analyze more than 15,000 respirable coal-dust samples for silica content, presenting significant risks of lowering applicable coal-dust exposure limits. Essentially, respirable coal dust-col- lected samples are weighed, and the results compared to currently applicable sili- ca-based calculated limits, generally with- out the actual sample analyzed for silica. As recently as July 2017, news on the MSHA website posted the availability of its silica data: "The complete quartz data set lists all operator and inspector dust sam- ples taken and analyzed for quartz from 1986 to the present." Operators should audit their MSHA-re- ported dust-sampling results since they can be used to support future MSHA en- forcement actions, and in lawsuits. As demonstrated by expert testimony in the public hearings on the new MSHA rules, in the Occupational Safety and Health Administration (OSHA) public hearings on the new OSHA silica rule, and in sworn testimony by the former head of the MSHA Lab, Thomas Tomb, the poten- tial for error is great in MSHA-reported silica results, and even greater when used to lower an independent, respirable coal- dust sample result. The total error applica- ble to such an exercise is dependent on a formula and can easily exceed the applica- ble NIOSH definition of accuracy. In fact, mine operators should not sim- ply accept MSHA sampling results. Instead, this author, who has participated in many silica and coal dust cases, suggests ques- tioning MSHA inspectors and lab personnel about the factors that make silica sample collection and analysis so prone to error, many of which can be found in MSHA's own technical and inspector's manuals. While MSHA may claim that its "excessive concentration" values above the exposure limit account for the sampling and analyti- cal error, it is the agency's burden of proof to demonstrate that additional error does not invalidate an overexposure allegation. Henry Chajet is a senior counsel with Husch Blackwell. He can be reached at

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