Federal court rules favors new dust rules

A federal court in Atlanta rejected the coal industry's challenge to the Mine Safety and Health Administration's (MSHA) 2014 dust rule Monday, a decision that comes as more miners are being diagnosed with the fatal illness. 

The 83-page opinion rejected a petition for review filed by coal industry groups led by the National Mining Association and Murray Energy.

The opinion's bottom-line: MSHA's dust rule has withstood judicial scrutiny, allowing the next phase of the rule to be implemented next week.

Coal operators must begin Feb. 1 providing continuous personal dust monitors (CPDM) to the dustiest jobs on each section and the frequency of sampling must increase. Then in August 2016, the dust limit will decrease by 25 percent from 2.0 mg/m to 1.5mg/m.

The "decision is a significant, lasting win for MSHA and the right of coal miners to work in safe conditions. The decision will have a nationwide impact and ensures that MSHA and the coal industry will continue to phase-in the new dust rule's requirements in coming years," said Evan B. Smith, an attorney for Appalachian Law Center and author of the Devil in the Dust blog, which tracks black lung issues.

Smith noted that Senior Circuit Judge Kenneth Francis Ripple, who wrote the opinion, has participated in a number of black lung cases during his 30-plus years on the bench.

"I can't help but think that a judge who has decade-in, decade-out heard cases involving miners disabled by black lung under modern dust conditions might have those cases in mind as he considered the industry's challenge to a rule meant to better protect miners," Smith said.

The coal industry first argued a procedural challenge to the rule. The industry contended the Secretary of Labor, which oversees MHSA, needed a joint ruling with the Secretary of Health and Human Services for the rule change. So, the failure of HHS to sign off on a Notice of Proposed Rulemaking and Final Rule meant the change was invalid.

A second challenged by the industry stated that the rule was "irrational and not based upon the best available evidence."

The court determined that the actual costs “can hardly be characterized as so high as to threaten the existence or the competitive structure of the industry.”

Smith said to understand the importance of Monday's ruling, one must put it in contextual analysis of the Mine Act's provisions.

"One has to think of the larger context of the dust rule and what it means for our nation's miners. And in that larger context, (Monday's) decision is a major win in the efforts to end black lung.

Efforts to reach the National Mining Association Tuesday were unsuccessful. It was unclear Tuesday if either the association or Murray Energy will appeal the decision.

In a statement, Assistant Secretary of Labor for Mine Safety and Health Joseph A. MainJoseph Main said, “For years, MSHA worked hard to craft a balanced rule that would allow miners to stay healthy and businesses to continue to operate,” Main said in a statement. “We listened closely to industry concerns throughout this process and, ultimately, finalized a regulation that fulfilled the promise Congress made in the Coal Act of 1969 -- to reduce dust levels and prevent miners from getting black lung disease."

“We know that black lung is not a disease of the past. Since 1969, black lung has caused or contributed to the deaths of 76,000 coal miners, and since the late 1990s, the percentage of miners identified with black lung has increased from 5 to 10 percent among long-tenured workers,” he added.

The ruling comes after a series of blows delivered by federal courts to the mining industry. Federal courts have been upholding federal black lung benefits awarded to miners and their survivors, after a number of mining companies denied the benefits. 

Those decisions coincide with Main's statement that black lung is "widespread and underreported."

In November, Main attributed much of the problem to underreporting by the industry.

"Of the 29 miners killed at the Upper Big Branch (UBB) Mine in April 2010, 17 of 24 that could be examined had evidence of black lung, and five of the 17 had fewer than 10 years of coal mining experience. However records indicate that the UBB mine reported only one case of the disease to MSHA since 2010," he said.

Between Oct. 1, 2010 and Sept. 28, 2015, 340 cases of black lung were reported in West Virginia, 12 cases less than Kentucky, Virginia and Pennsylvania combined, according to the newsletter Mine Safety and Health News.

— Email:dtyson@register-herald.com