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Court rejects challenge to rules aimed at protecting miners from black lung disease

A federal appeals court has turned back a coal-industry challenge to new standards aimed at cutting miners’ exposure to breathable dust that can cause deadly black lung disease.

The National Mining Association and several coal companies, including a Robert E. Murray company with operations in Kentucky, had asked the 11th Circuit Court of Appeals to strike down the rules.

A three-judge panel ruled Monday that the U.S. Mine Safety and Health Administration acted within its authority in putting the new standards in place.

MSHA chief Joseph A. Main said the rule will fulfill a promise that Congress first made in legislation more than 40 years ago — to prevent miners from getting black lung.

“This is indeed a good day for coal miners,” Main said in a news release.

Luke Popovich, spokesman for the National Mining Association, said the ruling was disappointing. He said he had not heard anything on the potential for an industry appeal.

Black lung is an incurable disease that impairs breathing and causes premature death. It is caused by inhaling dust that is churned out during mining.

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

The prevalence of the disease dropped markedly after Congress approved rules in 1969 to limit miners’ exposure to dust, but it began increasing in the late 1990s.

Eastern Kentucky has been a hot spot for the resurgence. Researchers have cited several potential reasons, including miners working longer shifts, inadequate dust-control rules, failure by coal companies to comply with the rules, and more mining of thin coal seams in Central Appalachia, which produces more dust from cutting through rock.

MSHA began phasing in new standards in 2014 designed to cut miners’ exposure to dust.

The rule includes more comprehensive sampling for dust, a requirement for the use of personal dust monitors by miners, and a lower limit on miners’ allowable exposure to dust.

The next phase, requiring personal dust monitors, goes into effect Feb. 1.

The coal industry challenged the rule on a number of fronts, including that MSHA exceeded its authority and failed to show that the rule was technologically and economically feasible, that sampling requirements were flawed, and that the personal dust monitors had a high failure rate.

The appeals court turned back every argument against the rule, saying MSHA went through an “extremely thorough” process to come up with it.

The agency had adequate evidence to conclude that the dust monitors and sampling rules will produce accurate results and is on “solid ground” in finding it is technologically feasible for the industry to comply, the opinion said.

There was no merit to the industry’s argument that a new standard using dust readings on a single shift, instead of averaging samples from several shifts, is inherently unreliable, the judges said.

Regulators estimated that it would cost the industry less than one percent of annual revenues to comply with the rule.

That’s not insignificant, but there is proper support for MSHA’s argument that the cost won’t be so high “as to threaten the existence or the competitive structure of the industry,” the opinion said.

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