MSHA UNVEILS COAL DUST FINAL RULE

For clients and friends of Jackson Kelly PLLC
Volume 10, Number 12
©2014 Jackson Kelly PLLC

 

            On May 1, 2014, the federal Mine Safety and Health Administration (“MSHA”) published the new final rule on coal dust exposure aimed at lowering the number of miners who will eventually develop black lung disease.  The final rule covers underground as well as surface coal operations. 
 

            The rule will make several significant changes over time including: 

• Reductions in the allowable concentrations: 

Currently, Part 70 regulations for underground mines provide that respirable dust concentrations must be at or below 2.0 milligrams per cubic meter of air (2.0 mg/m3) where coal is being mined, and 1.0 mg/m3 in other areas of the mine.  Part 71 regulations applying to surface operations require respirable dust to be at or below 2.0 mg/m3. 

 

Two years from the effective date of the rule, on August 1, 2016, those standards will change significantly.  For underground mines, the respirable dust concentrations allowable will be reduced to 1.5 mg/m3 in the active workings and 0.5 mg/m3 in outby areas.  For surface mines, the respirable dust concentration allowable will be reduced to 1.5 mg/m3.  Additionally, Part 90 miners, those with evidence of pneumoconiosis, will see their allowable dust concentrations cut in half, to 0.5 mg/m3. 

• Permissible exposure limits based on full-shift sampling covering hours of shift time actually worked by miners up to 12 hours rather than based on an eight hour time weighted average.
   
• Use of continuous personal dust monitors (“CPDM’s”) in underground mine production areas and for Part 90 miners diagnosed with x-ray evidence of pneumoconiosis.
   
• Redefinition of “normal production shift” for operator sampling to be taken in production areas when production is at least 80 percent of the average production over the last 30 production shifts rather than 50 percent during the operator’s last sampling period. 
   
• Use of single MSHA samples to determine compliance based on the concept of excessive concentration values (“ECV’s”).  Meant to take errors of sampling and weights into account, an ECV equals the allowable respirable dust concentration plus a margin of error.
   
• Use of less than five samples to determine compliance for operator samples.
   
• Increase in surface mine sampling requirements effective October 1, 2014. 

           The rule will be implemented in three phases starting August 1, 2014.  During Phase 1, MSHA will begin assessing samples for compliance using ECV’s.  Compliance will be determined by a single full-shift sample obtained by MSHA that exceeds the ECV.  The use of ECV’s begins August 1, 2014, but the new lowered applicable standards do not become effective until 2016.  The ECV depends not only on the applicable standard being used, but also on the amount of samples being taken.  For example, the current standard allows respirable dust concentrations at or below 2.0 mg/m3 where active mining occurs underground.  According to Table 70-1 in the final rule, the ECV for a single, full-shift sample as measured by a CPDM is 2.26 mg/m3.  Therefore, a single, full‑shift sample must be at 2.26 mg/m3 or above to be considered noncompliant.  Beginning August 1, 2014, non-compliance for operator sampling will be based on two or more valid representative samples that meet or exceed the ECV in Table 70-1 or when the average of all valid representative samples meets or exceeds the ECV in Table 70-1. 

 

            Under the new rule, if any sample is shown to meet or exceed the ECV but the operator takes “immediate corrective action,” then a citation will not be issued.  Corrective measures are discussed in the rule’s preamble and include engineering and environmental controls to reduce respirable dust exposure.  Discretion will be vested in MSHA to determine whether such actions are taken “immediately” on a case‑by‑case basis.

 

            Corrective actions must be recorded by the mine foreman or equivalent mine official and the record maintained for at least one year.  30 C.F.R. § 75.205(e)(3).

 

            Under Phase 2, beginning February 1, 2016, sampling in underground coal mine production areas and Part 90 miners must be conducted using the CPDM’s, and sampling of the designated occupations will begin.  For sampling in the intake air courses, operators will be given the choice to use CPDM’s or to continue relying on gravimetric analysis.  Noncompliance will be based on either three or more of 15 samples meeting or exceeding the ECV, or the average of all 15 samples meeting or exceeding the ECV.  Surface operations will likewise be permitted to use CPDM’s but will not be required to at that point.

 

            Under Phase 3, beginning August 1, 2016, the lower allowable concentrations will become mandatory.  The agency hopes that, by implementing the final rule in this fashion, operators will have the necessary equipment and practice with the logistics of new sampling strategies by the time the concentration limits actually go down. 

 

            Other changes in the final rule include the expansion of medical surveillance to include spirometry testing; additional training and testing for certified persons who conduct dust sampling; and expansion of the Part 90 miner program that offers transfer rights to less dusty atmospheres to surface miners.

 

            Beginning next month, MSHA will begin holding a series of six compliance assistance meetings all over the country: May 8 in Beaver, WV; May 20 in Hazard, KY; May 22 in Washington, PA; May 29 in Evansville, IN; June 3 in Birmingham, AL; and June 5 in Grand Junction, CO. 

 

            The rule has been challenged by Murray Coal Company in the Court of Appeals for the Sixth Circuit, and by the National Mining Association in the Eleventh Circuit.

 

            This article was authored by Laura E. Beverage and Amanda E. Ferguson, Jackson Kelly PLLC.

 

OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado

 

Responsible Attorney
Kristin R.B. White
(303) 390-0006
kwhite@jacksonkelly.com

 

For more information, contact:

 

Laura E. Beverage (303) 390-0003	Karen L. Johnston (303) 390-0008
R. Henry Moore (412) 434-8801	Michael T. Cimino (304) 340-1000

 

The Jackson Kelly PLLC Occupational Safety & Health News-Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety & Health News-Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.

 

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