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. 

During today’s Web chat, I and several others questioned Main, trying to pin him down on whether this new proposed rule — expected to be published in September 2010 — would or would not include a proposed lowering of the exposure limit. I’ll let you decide whether he really answered the question …

Question from Ellen Smith, Mine Safety and Health News:

Can you plase explain why it will take so long for MSHA to finalize new dust and silica standards when there is ample evidence of a problem, and solutions?

Answer from Joe Main:

Ellen, MSHA must follow the notice and comment rulemaking process which provides for public input.   The process includes other administrative and regulatory requirements.   As you will notice the process has been shortened from the last regulatory agenda.

Question from me:

Why has MSHA removed the word “limits” from its agenda item calling for reducing coal dust exposure … is MSHA no longer committed to reducing the PEL?

Answer from Joe Main:

Ken, MSHA did not remove the plan to  lower the PEL.   MSHA consolidated the rulemaking from the previous regulatory agenda on plan verification and compliance sampling, determination of concentration of respirable coal mine dust (single sample) and lowering the respirable coal mine dust PEL into one rulemaking.   The new rulemaking – as noted – will be designed to lower exposure to coal mine dust.

Another question from me:

Why has MSHA removed the specific plan to lower the PEL on coal dust from its regulatory agenda? What is the argument in favor of not reducing the PEL, given the recommendation from NIOSH to do so?

Answer from Joe Main:

MSHA did not remove the plan to lower the PEL.   MSHA consolidated the rulemaking from the previous regulatory agenda on plan verification and compliance sampling, determination of concentration of respirable coal mine dust (single sample) and lowering the respirable coal mine dust PEL into one rulemaking.   The new rulemaking–as noted–will be designed to lower exposure to coal mine dust.

Me again:

Joe — Perhaps you could clarify — MSHA previously announced it was going to issue a rule to lower the PEL … could you speak perfectly clearly here today and pledge that when your proposed rule comes out, it will include a lowering of the PEL?

And Joe Main’s response:

Ken, in the Regulatory Agenda there is reference to the NIOSH criteria document that recommends lowering the PEL. That would be part of the rulemaking.   MSHA is committed to proposing a rule that will reduce miners’ exposure to respirable coal mine dust.

OK … what do you all think?

Here’s one more thing to keep in mind: Main mentioned that the new Obama rulemaking agenda item references the NIOSH recommendation to tighten the dust limit.  Well, both the new agenda item and the previous one issued in May contained this same reference to the NIOSH recommendation:

In September 1995, NIOSH issued a Criteria Document in which it recommended that the respirable coal mine dust permissible exposure limit (PEL) be cut in half.

Basically, what Main is saying is that MSHA took other rulemaking agenda items concerning coal dust — such as changing the way dust is measured for regulatory purposes and the way MSHA confirms dust levels measured by operators — and combined them with the May 2009 item that proposed to lower the legal dust limit. It’s interesting to note that MSHA did not also combine the agenda item for one of Joe Main’s priority projects, personal dust monitors, into that larger agenda item. It’s still listed separately.

I compared the two regulatory agenda items and found other differences.

For example, both agenda items noted that in 1996, a federal advisory committee made recommendations to the Secretary of Labor concerning coal dust and black lung.

But, the May agenda item said:

The Committee recommended that MSHA consider lowering the coal dust PEL. 

While the new agenda item released this week said only:

The Committee recommended a number of actions to reduce miners’ exposure to respirable coal mine dust.

And, as I’ve mentioned before, while the May agenda item specifically said:

MSHA will publish a proposed rule to lower the coal mine dust permissible exposure limit.

The new agenda item has that sentence phrased this way:

MSHA will publish a proposed rule to address miners’ exposure to respirable coal mine dust.

Perhaps I’m over analyzing here … but I tried one more time to get Joe Main to clarify this. I asked something to the effect of:

Joe, you said that MSHA is committed to proposing a rule that will reduce miners’ exposure to respirable coal mine dust.  Is MSHA also committed to lowering the permissible exposure limit for coal dust?

Joe never answered that one.

Ken Ward Jr. is a reporter with the Charleston (WV) Gazette, covers coal mining and worker health and safety extensively, along with many other environmental health topics.  He is chair of the Society of Environmental Journalists’ First Amendement Taskforce.

 

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