Coal industry seeks stay of new rule aimed at reducing miners’ exposure to dust

The coal industry is seeking to forestall new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.

Feb. 1 is the start date for the second phase of the rule. It would require miners to wear continuous personal monitors to check their exposure to dust, and companies would have to do more frequent sampling to check for compliance with dust limits.

However, the National Mining Association, Murray Energy and other coal companies filed a motion this week seeking a stay of the rule.

The industry groups argue that the requirement for personal dust monitors and more frequent sampling is at odds with a separate rule on the use of rock dust. Coal operators are required to apply non-explosive dust, such as ground-up limestone, to surfaces in underground mines to keep coal dust from exploding.

The new personal dust monitors pick up rock dust and coal dust.

That means companies face the potential for violations of dust limits under the new rule not because of miners’ exposure to the toxic substance the standard covers — coal dust — but because of exposure to rock dust, industry groups said in their motion.

The current sampling system also picks up rock dust, but companies may adjust for that by taking samples at times when rock dust won’t interfere with the readings on coal dust, the motion said. With more frequent sampling, companies won’t have that flexibility, the motion said.

“Simply put, the two rules are in direct conflict with each other, meaning operators will be doomed to violate the one or the other,” the industry motion said.

Coal companies and industry groups have challenged the overall dust rule in the 11th Circuit U.S. Court of Appeals, arguing among other things that the Mine Safety and Health Administration, or MSHA, overstepped its authority in adopting the rule and relied on flawed data. There has been no decision on that challenge. That’s why the industry is seeking a stay of the part of the rule set to take effect Feb. 1.

Without the stay, coal companies face considerable expense to comply with standards they probably can’t meet and that could be struck down, according to Monday’s industry motion.

The request for a stay is “absolutely not” an indication of any lack of commitment by the industry to protecting miners’ health and safety, said Luke Popovich, spokesman for the National Mining Association.

Putting the rule on hold won’t diminish safety, because operators still will have to comply with current standards under which more than 98 percent of air samples collected comply with dust limits, Popovich said.

A stay would give the industry, regulators and researchers time to come up with a sampling system “that restores confidence and recognizes all the tools available to protect miners — tools that we advocated during the rulemaking but which MSHA rejected,” Popovich said.

MSHA declined comment on the industry request for a stay.

However, MSHA chief Joe Main said in a letter to the association last year that sampling results since 2010 had not shown rock dust was creating a problem for companies in complying with dust limits.

The industry has not shown why most companies could not continue to comply with the rules when sampling more often with a new device, Main said.

He said it appeared the coal industry’s tests of the personal dust monitors were based on inaccurate assumptions about mining conditions.

There is a third phase of the dust rule that would lower the legal limit on miners’ exposure to dust. It is scheduled to begin Aug. 1 if the courts don’t overturn the rule or issue a stay.

The fight over the dust rules is playing out against an increase in black-lung disease, which is caused by inhaling particles of coal that can billow out during mining.

Black lung is an incurable disease that chokes off breathing and causes premature death.

The disease has been the primary or contributing cause of death for more than 76,000 miners since 1968, according to MSHA.

The disease was common before Congress approved rules in 1969 limiting underground miners’ exposure to coal dust. The prevalence of the disease dropped sharply afterward, reaching 2 percent in screenings conducted from 1995 to 1999 by the National Institute for Occupational Safety and Health, or NIOSH.

However, the prevalence of the disease rebounded beginning in the late 1990s, according to NIOSH.

In Eastern Kentucky, for instance, 9 percent of all miners screened in one NIOSH program from 2005 through 2009 had the disease.

And in 2014, NIOSH researchers reported that the most deadly form of the disease, progressive massive fibrosis, had spiked to the worst level in 40 years. Researchers also have seen the disease in younger miners.

Researchers have said a number of factors could be at work in the upswing, including miners working longer shifts, meaning longer exposure to dust; inadequate dust-control rules; and failure by coal companies to comply with the rules.

Researchers also have pointed to more mining of thin coal seams in Central Appalachia as a possible factor. That requires cutting through more rock, churning out silica particles that can cause lung disease.

Stephen A. Sanders, director of the Appalachian Citizens’ Law Center in Whitesburg, who represents coal miners in claims for black-lung compensation, said the increase in the disease was troubling.

“It makes me think the existing way of monitoring is inadequate,” said Sanders, who testified before Congress last year in favor of the new dust rule.

Safety advocates say the use of continuous personal dust monitors will give miners quick information to avoid being exposed to too much harmful dust.

“We have to take the protective action now,” Sanders said.