Last month I praised MSHA’s new leadership because they appeared to be promising aggressive action to tackle respirable coal dust exposure and the consequent disease and disability associated with miners’ exposure to it. I believed and applauded acting director Greg Wagner when he said that the Labor Department and MSHA ”placed a very high priority on preventing lung disease.” I interpreted very high priority to mean MSHA would act urgently, and that Labor Secretary Solis and her team recognized that every month of regulatory delay represents measureable damage to coal miners’ lungs.
My optimism was short-lived.
A few days ago, MSHA published a notice in the Federal Register that demonstrates everything but a sense of urgency. It’s a “Request for Information” on how MSHA should use a direct readout respirable dust monitor, known to insiders as a continuous personal dust monitor (CPDM). Widespread use of these monitors could provide precise data on miners’ exposure to respirable dust and compel immediate corrective action when exposure levels are too high.
MSHA’s action is perplexing because the CPDM has been in the works for two decades, and is touted by the coal industry and the United Mine Workers as a big part of the solution to preventing coal workers’ pneumoconiosis (CWP), the deadly disease known as black lung. Those intimately involved in this effort—MSHA, NIOSH, UMWA, BCOA* and NMA** —have pondered, discussed, and debated for years how these devices might, could or should be used to monitor respirable coal dust. Surely after this many years (and millions of federal funds spent on R&D and testing of the technology) MSHA would be prepared to propose how it would be used.
I’ve read MSHA’s October 14th Request for Information notice multiple times now, and I’m still scratching my head. I’m trying to figure out why senior officials at MSHA or DOL (or OMB) thought this preliminary maneuver is necessary. Clearly, the advantage of instantaneous data on exposure to respirable coal dust is appreciated by everyone who’s examined the issue, including a federal advisory committee to the Secretary of Labor which recommended in 1996:
- “…these monitors should be broadly applied in conjunction with other sampling methods for surveillance and determination of dust controls at all mechanized mining units (MMUs) and other locations at high risk of elevated dust exposure”
- “…MSHA should use CPDM data for assessing operator compliance efforts in controlling miner exposure, and should consider use of CPDM data directly in compliance”
Recently, the National Mining Association argued in a January 2009 court brief that using this continuous dust monitor would be a
“more effective substantive measure for protecting underground coal miners from unhealthful exposures to respirable dust.”
With so much support for this technology and its potential to provide vital just-in-time information about coal miners’ exposure to respirable dust, why wasn’t MSHA prepared to propose ways for it to be used? There’s no doubt in my mind that the current regulatory system is not preventing disease. According to a 2008 report by NIOSH, the prevalence of CWP has more than doubled since 1995 among coal miners with more than 20 years of exposure, and NIOSH has identified advanced cases of respiratory disease in working U.S. miners as young as 39 years of age. I recall the news account from two years ago, reporting that the incidence of pneumoconiosis among coal miners examined in West Virginia’s Raleigh and Mercer counties was twice the national average, and that similiar results were found in eastern Kentucky and western Virginia.
The situation is grave and demands aggressive regulatory action. That’s why I’m puzzled by MSHA’s decision to publish a Request for Information rather than proceeding directly to propose how the CPDM will be used. The notice reads as if MSHA officials don’t have an opinion about how the CPDM should be used—-that’s baffling to me because I know the agency’s inspectors and health specialists have foreseen its potential. MSHA’s notice asks questions like:
- “…address conditions and circumstances under which CPDMs should be proposed for use in underground coal mines”
- “…address whether the CPDM could be integrated into the existing compliance strategy, and if so, how”
- “…who should be responsible for maintaining the CPDM data files and why?”
- “…what qualifications should be required before an individual is permitted to operate and maintain a CPDM?”
I count at least 50 rudimentary questions of this sort, which have me completely mystified. MSHA really doesn’t have enough skills, experience and historical knowledge to propose how these devices will be used? MSHA really couldn’t write a preamble and proposed regulatory text to give itself enough leeway to meet the ‘logical outgrowth’ test?***
I’d really like to know why MSHA (or higher-ups in the Department of Labor and/or OMB) decided that this preliminary step was needed rather than cutting to the chase, making some tough decisions and proposing a rule. It is seriously baffling to me, especially given the gravity of the problem. There has to be some logical explanation, some big issue I’m missing, some strategy that if only explained, will make perfect sense.
As I read the comments on Ken Ward’s Coal Tattoo post, “Reactions to Joe Main confirmation at MSHA”, I see that many commenters are confident that the newly confirmed head of MSHA will put miners’ safety first. I hope that’s true, and I’m hoping it will become clear to me how what appears to be a disappointing first move from Secretary Solis’ MSHA on black lung is part of a solid strategy for protecting miners’ health.
Notes: *BCOA=Bituminous Coal Operators’ Association, **NMA=National Mining Association, ***see Chocolate Manufacturers Ass’n v. Block (1985) in which the notice provided in a proposed rule was deemed adequate if “the changes in the original plan are in character with the original scheme and the final rule is the ‘logical outgrowth’ of the notice and comments already given.”
Celeste Monforton, DrPH, MPH is an asst. research professor at the George Washington School of Public Health & Health Services. She worked at MSHA from 1996-2001 when the agency had an ambitious proposed rule to eliminate the averaging of dust samples, and require mine operators to verify dust control performance during typical production. Contact Celeste to hear her perspective on why that proposed rule failed to be adopted at the end of the Clinton Administration.