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As I noted in “Perplexed by OSHA’s reg agenda,” I’ve made a habit of commenting on the content of the Dept of Labor’s semi-annual regulatory agenda  [see links below].  I’ll be the first to admit that our system for protecting workers from well-known hazards with new regulations is onerous and anything but nimble.  It needs an overhaul.   The obstacles, roadblacks and challenges plague OSHA, but these administrative and burden-of-proof hurdles DO NOT apply to MSHA.   Here are just two examples of what I mean:

  1. MSHA merely has to demonstrate that its decision is not arbitrary and capricious; a much lower burden of proof than the “substantial evidence” test required of OSHA.  [see a recent US Court of Appeals ruling on MSHA's diesel particulate matter health standard explaining the "arbitrary and capricious" bar.]
  2. MSHA, unlike OSHA, is at every one of the worksites under its authority several times a year and can assemble all kinds of data to determine feasibility of controls.  MSHA has access to more data than it would ever need to demonstrate exposure, risk and feasibility.

These two factors alone set the stage for MSHA to propose and finalize standards to protect our nation’s mine workers over several months, not years.

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Last week Labor Secretary Solis released in the Federal Register on April 26, 2010, her Spring 2010 regulatory agenda for the Department, including her rulemaking priorities for MSHA and OSHA.  As required by the Regulatory Flexibility Act it was published on time in April, in contrast to her Fall 2009 agenda which was six weeks late. 

This document is described by the Secretary as a:

“…listing of all the regulations it expects to have under active consideration for promulgation, proposal, or review during the coming 1-year period.  The focus of all departmental regulatory activity will be on the development of effective rules that advance the Department’s goals and that are understandable and usable to the employers and employees in all affected workplaces.”

As my mentor Dr. Eula Bingham used to say to her staff (during her tenure as OSHA chief the Carter Administration): the only rulemaking activies that truly count for worker health and safety are publishing proposed and final rules.   Efforts that distract, divert, or delay the regulation writers’ duties should be avoided.  Currently, OSHA has about 100 full-time (FTEs)  individuals assigned to its H&S standards office, and MSHA has about 17 FTEs.

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Mr. Jim DeMarce, Director of the Labor Department’s Division of Coal Mine Workers’ Compensation, passed away suddenly on April 12.  He served coal miners and their families for 25 years, helping them wade through the federal black lung benefits program.  He was also known more recently for his efforts during the Clinton Administration to improve the regulations for processing that seem forever stacked against workers in favor of coal mine operators. 

Steve Sanders of the Appalachian Citizen’s Law Center said this about Jim DeMarce:

I was acquainted with Jim for about 10 years through my work on black lung benefits claims.  He regularly attended the annual meeting of the Black Lung Clinics and Respiratory Disease Clinics.   Each year Jim would give a presentation on the federal black lung program with statistical information, such as the approvals and length of time for adjudications. 

Jim was very concerned about disabled miners and widows and wanted to see the black lung benefits program serve the disabled miners and widows in the ways it was intended.  He worked on the 2000 amendments to the regulations, trying to create a more level playing field for claimants, who up to that time were being completely overwhelmed by the superior resources of the insurance companies fighting against them. 

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by Kathy Snyder, cross-posted from MineSafetyWatch

I wasn’t able to catch President Obama’s remarks on mine safety live, but immediatley saw the summary by Ken Ward at Coal Tattoo.  Two main thrusts in the points flagged by Ken: MSHA needs a better way of identifying mines that need extra enforcement attention.  And new legislation is almost 100% certain in the next months.  Update: exceptionally strong words from the President’s actual statement:

….we do know that this tragedy was triggered by a failure at the Upper Big Branch mine — a failure first and foremost of management, but also a failure of oversight and a failure of laws so riddled with loopholes that they allow unsafe conditions to continue.

Many experienced, intelligent and thoughtful people will be giving their best attention to reforming mine safety.  The S-Miner Act, which was proposed but not enacted after Crandall Canyon in 2007, is one likely starting point.  Not an engineer, nor an attorney — but nevertheless, having worked more than 30 years around mine safety issues, I would like to offer a few personal reflections that someone might possibly find useful.

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US Labor Secretary Hilda Solis and MSHA chief Joe Main marked the 40th anniversary of the Coal Mine H&S Act this week.   The Charleston Gazette’s Ken Ward offers his perspective on the event in two posts published at Coal Tattoo.

Story 1:  MSHA celebrates landmark mine safety law, but when will Obama administration tighten dust limits to really end deadly black lung disease?

by Ken Ward, Jr., cross-posted from Coal Tattoo

Early this afternoon, officials from the U.S. Department of Labor and its  Mine Safety and Health Administration will gather in Washington for a celebration to mark the 40th anniversary of the landmark federal Coal Mine Health and Safety Act of 1969.

Wait … The 40th anniversary? Wasn’t that last year? Well, yes. The law was signed on Dec. 30, 1969. But, MSHA’s celebration is officially to mark the effective date of the law, which for most provisions was March 30, 2010.

Wouldn’t today’s event be a great opportunity for the Obama administration to make some major announcement … Oh, like maybe that MSHA was going to get back on track with its initial promise to tighten the legal limit on coal dust that causes deadly black lung disease?

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by Ken Ward, Jr., cross-posted from Coal Tattoo

I checked out the Web chat that Joe Main, assistant labor secretary in charge of the Mine Safety and Health Administration (MSHA), had this afternoon to discuss the MSHA portion of the Department of Labor’s regulatory agenda.  Mostly, I was hoping that Main would clarify why the Obama administration removed from its agenda the specific proposal to lower the permissible exposure limit for coal dust that had been added to the DOL plan only six months ago.

Remember that previously, MSHA had a specific regulatory proposal called Occupational Exposure to Coal Mine Dust (Lowering Exposure Limit).  It said: MSHA will publish a proposed rule to lower the coal mine dust permissible exposure limit.

After last week announcing a new campaign called, “End Black Lung: Act Now,”  MSHA this week published a regulatory agenda that instead included an item called Occupational Exposure to Coal Mine Dust (Lowering Exposure). It said: MSHA will publish a proposed rule to address miners’ exposure to respirable coal mine dust. 

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The first regulatory agenda under OIRA chief Cass Sunstein was published today in the Federal Register [link to its 237 pages .]  The document includes a narrative of Labor Secretary Solis’ vision for worker health and safety, mentioning these specific hazards: crystalline silica, beryllium, coal dust, airborne infectious agents, diacetyl, cranes and dams for mine waste.   The document purports to “demonstrate a renewed commitment to worker health,” yet the meat of the agenda tells a different story for particular long-recognized occupational health hazards.

Take, for example, MSHA’s entry on respirable coal mine dust, a pervasive hazard associated with reduced lung function, chronic bronchitis, emphysema, progressive massive fibrosis, and more.  Despite an announcement last week by Labor Secretary Solis and MSHA Asst. Secretary Joe Main saying they want to “end new cases of black lung among the nation’s coal miners,” they aren’t planning to PROPOSE any regulatory changes for 10 months.   That’s a “renewed commitment to worker health”?   Hardly.

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For the last several weeks, MSHA officials have been planning a series of public events to launch a campaign to end black lung disease.  The first event was held this morning in Beckley, WV, and the Charleston Gazette’s Ken Ward allowed me to feel like I was attending the event by providing a live-feed on Twitter [kenwardjr].   He wrote:

  • First part of MSHA plan is education and outreach to tell industry how bad black lung is, agency chief Joe Main says.   [They already know this, don't they?]
  • Second part of three-part plan is enhanced enforcement of current dust standards aimed at black lung prevention.  [Hmm...didn't NIOSH tell us in 1995 that the current exposure limit will NOT prevent black lung?  How can enforcing the current limit be part of the plan to end black lung?]
  • MSHA regulatory plan will come out Monday as part of overall DOL agenda, Joe Main says.  But won’t necessarily include tightening the PEL.   [I hope that "won't necessarily" means that it will include it, but that he just wasn't at liberty to say it.]

The Pump Handle will report tomorrow on DOL’s reg agenda, which is supposed to be published in October (and April) each year, when the version for public review becomes available.   Meanwhile, Ken Ward offers us a brief recap of today’s MSHA event.

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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.

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