For the first time, beginning on April 29, it will be unlawful for employers in the mining industry to expose workers to asbestos concentrations higher than 0.1 fiber (per cubic meter of air) over an 8-hour shift. MSHA published today a new exposure limit for asbestos to replace a 2.0 fiber limit which has been on the books since 1978 when the agency was created. Other U.S. workers, in contrast, began getting protection from an OSHA asbestos standard in 1971 and it was revised several times over years—from 2 fibers, to 0.5, to 0.2 and 0.1—-to make it more protective of workers’ health.
But, and this is a big BUT, there is still a vast difference between OSHA’s asbestos standard, and the one issued by MSHA. This new standard for U.S. mine workers is ONLY an exposure limit, it does not have any of the additional protections afforded to other asbestos-exposed workers, such as protective clothing, hygiene facilities and medical surveillance. Don’t let anyone in the Administration get away with suggestions that mine workers now have a federal workplace health standard on asbestos that is equivalent to every other worker in the country. It is not.
The impetus for addressing mine workers’ exposure to asbestos came after the stellar reporting by Andrew Schneider (a reporter with the Seattle Post-Intelligencer) on the occupational and environmental health disaster that began in Libby, Montana.* I was working at MSHA at the time and we came face-to-face with former and current miners who were personally affected by the federal government’s failure to address asbestos exposure at their workplaces. (Some of these workers are now deceasedfrom asbestos-related disease, such as Mr. Les Skamstad.) It took us a few months to realize the intricacies of the problem, but by fall 2000, the Clinton Administration had committed to proposing a rule to protect mine workers from asbestos exposure.
Alas, Bush v. Gore. There was no progress on an asbestos rule for mine workers until 2002 when MSHA published an advanced notice of proposed rulemaking. Another 3 1/2 years passed before MSHA published a proposed rule on asbestos. In that proposal, the agency insisted that they couldn’t be distracted by ancillary provisions or other issues that might divert attention from the simple task of changing the exposure limit.
In at least 11 instances in that 2005 proposed rule, MSHA stated the “rulemaking is limited in scope.” Their objective: simply to establish a 0.1 fiber permissible exposure limit which is equivalent to OSHA’s standard. MSHA kept saying, the rulemaking is limit in scope; we’re just going to change the exposure limit.
I agreed with MSHA’s decision to limit the scope of the rulemaking, and I told them so. I placed a condition, however, on my endorsement. I urged MSHA to issue its “limited scope” change in the asbestos standard exposure limit, but on the fastest, fast track. (I suggested a six month deadline.) I agreed that mine workers should have the same protection of a 0.1 fiber PEL and the sooner that was put in place the better. I also recognized that ancillary provisions on analytical methods, hygiene facilities and the like would raise the ire of most mine operators (and the mining trade associations) and they would attempt to engage MSHA and OMB in endless debates about them. Under this scenario, inspectors still couldn’t cite a mine operator failing an asbestos exposure unless it was over 2.0 fibers. That reality had to change, and thus my suggestion that MSHA immediately change the exposure limit to 0.1 fibers, and then proceed diligently with a comprehensive standard that, at a minimum, would give mine workers a health standard that would be at least equivalent to OSHA’s standard.
Well, the Bush Administration did not move rapidly on asbestos protections for mine workers. And, after the January 2006 Sago disaster, MSHA staff who are tasked with writing regulations and economic analyses have been busy with rules addressing hazards in underground coal mines. So today, I have mixed feelings about MSHA’s new asbestos rule. Yes, it’s good indeed that the asbestos exposure limit is now 0.1 fibers. But isn’t it appalling that making that simple change took 8 years? 8 years? OSHA’s 0.1 fiber exposure limit has been on the books for 13 years! A public health improvement that constitutes 25 words in the Federal Register takes 3 years from proposal to final rule?
This is the state of occupational health and safety in the U.S. I’m speechless.
*Celeste Monforton, MPH highly recommends Andrew Schneider and David McCumber’s book “An Air That Kills: How the Asbestos Poisoning of Libby, Montana, Uncovered a National Scandal,” Putnam Press, 2004. Celeste is currenlty a lecturer and research associate at the George Washington University School of Public Health. She was special assistant to the Assistant Secretary of MSHA from 1996-2001.