A hearing participant speaks to the panel during the first of seven public hearings on coal dust held by MSHA at the National Mine Health and Safety Academy in Beaver.

The first of seven public hearings on proposed regulation to limit coal miner’s exposure to respirable, or breathable, coal dust revealed both support and criticism of the Mine Safety and Health Administration’s proposal.

The MSHA panel and participants discussed the proposal to cut existing limits on respirable dust in mines by half and the use of continuous personal dust monitors (CPDM) that measure a miner’s dust exposure. The panel held the hearing at the National Mine Health and Safety Academy in Beaver.

Respirable coal dust is linked to increased incidence of coal workers’ pneumoconiosis (CWP), known commonly as black lung disease. Progressive massive fibrosis (PMF), is another form of black lung known as complicated black lung disease.

“This proposed rule would significantly improve health protections for underground and surface coal miners by reducing their occupational exposure to respirable coal mine dust,” said Joseph A. Main, assistant secretary of labor for mine safety and health at the U.S. Department of Labor.  “It will lower the risk that they will suffer material impairment of health or functional capacity over their working lives.”

According to data from the Department of Labor’s Division of Coal Mine Workers’ Compensation, In 2009, about $58.8 million of $255 million in black lung benefits went to West Virginians.

No one argued the necessity for steps to eradicate black lung, however, the current plan is far from perfect, several commented.

Dennis O’Dell, administrator of occupational health and safety for the United Mine Workers of America, said one problem is that the proposed rule changes, more than 96 pages long, are too complex and should be written so that MSHA’s message is more clearly communicated to the mining community.

“One significant problem we see with this proposal is how complicated it really it is,” O’Dell said. “The explanations are confusing ...”

One of the strongest critics of the proposed rule change was Chris Hamilton, senior vice president of the West Virginia Coal Association.

“Our primary position and comment is that we strongly object to the proposal in its current form,” Hamilton said. He added the proposal was “fraught with technical and operational impracticalities, misapplication of dust control technologies” and “relies on an inappropriate, convoluted or uneven enforcement scheme.”

Hamilton said he is concerned the proposed regulations could be circumventing the authority of the U.S. Congress and its own efforts to regulate mine safety. He told the panel that MSHA’s actions “represent a departure from the cooperative approach deemed necessary to eradicate CWP from within our industry.”

The WVCA, Hamilton said, represents a majority of the coal mining companies in the state. He said the industry is “clearly under attack by the Obama administration” and regulatory agencies.

“We would hope that this rule, as proposed, is not part of that strategy as some submit that it clearly is.”

Hamilton said that while the industry is also committed to reducing incidence of black lung by creating “lowest possible” concentrations of coal dust in the mines, MSHA’s proposal is unacceptable. He requested MSHA officials “dispense with and set aside this rule-making.”

Hamilton said MSHA’s cost estimates are greatly “off the mark.” 

“Even a cursory review of the fiscal information which accompanies the rule indicates that the numbers are way off and woefully understated,” Hamilton said.

He predicted the increased sampling will cost more than $75 million per year for underground operators alone, much higher than the what MSHA calculated at under $40 million. He said the total compliance costs to the industry could easily exceed $1 billion. Hamilton said he will submit a detailed, written critique to MSHA.

O’Dell said the rule should also expand to include employees of coal-loading facilities and to other professions that may be exposed to coal dust. O’Dell said UMWA will continue adding to its critique and discussion of the proposed rule, as well.

“The UMWA has always and will always support reducing miners’ exposure to dust and eliminating the dreaded black lung disease which I saw both of my grandfathers die from,” O’Dell said. “However, we strongly believe that current mining practices with improvements can be continued without jeopardizing miners’ health. We want to make sure the rule doesn’t make it infeasible for coal miners to work in coal mines.”

Required medical screenings, including chest X-rays, spirometry, symptom assessment and occupations history at no cost to miners is  proposed in the rule. O’Dell said the UMWA supports this measure, but wants to be sure the miners’ medical information is kept private.

“Miners have a right to have their medical information protected under the HIPAA laws and (they) must remain private,” he said. “Miners should be able to use this information to determine what they believe is best about whether to continue employment in the mining industry.”

Keeping sensitive medical data out of the hands of operators who may use that information to unfairly discriminate against employees is not appropriate, O’Dell said. The UMWA, O’Dell said, is concerned about a part of the rule that would allow miners to be rotated in and out of areas above a certain threshold of coal dust to reduce their exposure.

“We do not and will not support the idea of being able to rotate miners out of their job positions as a response when an operator is out of compliance,” O’Dell said. “The Mine Act requires that every operator controls the mine atmosphere, not just move the miners in and out to lower miners’ measured exposure.”

Before public comments began, Gregory R. Wagner, deputy assistant secretary for MSHA, reminded the audience that the rule is not concrete and is subject to changes based on the comments received.

An old fight between MSHA and the West Virginia coal industry also reappeared Tuesday morning. Scrubbers, which are attached to continuous mining machines and clean dust from the air where miners work, haven’t been allowed in new West Virginia mines, Hamilton said.

“We have a real problem with our inability to use scrubbers here in the state of West Virginia at the current time,” Hamilton said to Wagner. “There’s not a day goes by that we don’t hear from a miner or a mine operator that’s says MSHA is unnecessarily and inappropriately refusing to let them use their scrubber device.”

Wagner said MSHA actually approved of the use of scrubbers as part of an approved ventilation plan.

“MSHA does not have any policy banning the use of scrubbers,” he said. “The scrubbers, when used in compliance with MSHA policy and regulatory requirements can reduce safety and health hazards associated with coal mine dust and improve health protection for miners.”

Hamilton said that may be the official story, but West Virginia coal operators can’t get approval for scrubbers in the mines.

Though Wagner stood by the assertion that there is no “moratorium,” effectively or officially, on scrubber implementation, one operator said he, too, couldn’t get a scrubber for his employees, despite going through the processes and waiting.

“It’s the best thing I’ve ever seen, I don’t understand why you can’t run it. Maybe one of you all can tell me that? Are one of you responsible for that?” James Taylor said.

Coal miner Michael McGlothin, one of those who requested to speak, unzipped a duffel bag filled with his mining equipment and donned his work gear before the panel. His concern, he said, is that the extra weight of the continuous personal dust monitors would pose physical stress, essentially alleviating one health problem but causing another.

“I’ve still got seven years to work. I’ve got two young boys and I want to see them grow up. I want to see my grandchildren grow up,” McGlothin said. “I think this dust, cutting it down, is a great thing, but with technology we can make this unit ... I feel like we could make it smaller.”

CPDMs provide personal, real-time measurements of the air quality in the mine. O’Dell said miners need to be instructed on use of CPDMs separately from their regular annual retraining.

“Miners already tell us that the annual retraining classes are already crammed with way too much information, making it difficult to retain all that is thrown at them for the day,” he told the panel. He said he encourages MSHA to provide educational opportunities so the benefits of the CPDMs will be fully realized.

O’Dell and others also argued for more use of respirators that would provide a clean air supply to miners.

Susie Criss of the New River Breathing Center in Fayette County, said the center sees about 300 to 400 coal miners a day and provides various tests for black lung disease. She said incidences of the disease are increasingly more common in younger miners.

“When you have to tell that miner what they’re facing in the next few years, it becomes a very complicated case for them,” Criss told the panel. “(They have) to decide between their health and working and supporting their families.”

Dennis W. Robertson of the Bluestone Health Center Black Lung program, said he is pro-coal, but also believes operators have a duty to respect the health and needs of workers.

“They have the right to work in the least injurious circumstances that they possibly can while working,” he said. “... I have seen them with tears in their eyes when they file for benefits, (and say) ‘Dennis, why are they doing this to me?’”

Joe Massie, retired coal miner and president of the National Black Lung Association, and the Fayette County BLA, said those organizations support any changes MSHA can make to prevent miners from getting black lung.

Gary Hairston spent more than 27 years in the mines before he was forced out because of problems with his lungs, he told the MSHA panel Tuesday.

Hairston said “it hurts me when I can’t work” because his wife had to get a job after he could no longer provide for his family.

“I’ve got a grandson back there right now. I can’t run and play with like I want to. I would love to be able to play basketball with him,” Hairston said. “... There’s lots of things I would like to do, but because of my lungs, it won’t let me do it.”

MSHA will also accept written comments and other appropriate information for the record from any interested party, including those not presenting oral statements. Comments must be received by midnight EST on Feb. 28, 2011. The full proposal is available at:  http://www.msha.gov/REGS/FEDREG/PROPOSED/2010Prop/2010-25249.pdf.

— E-mail: tkuykendall@register-herald.com

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