MSHA is asking for cooperation on its new respirable coal dust rule from the coal sector, the very group that has sued the agency to overturn the regulation. The rule requires operators to take immediate corrective action when a sample meets or exceeds the exposure limit. Operators will be required to take five samples bimonthly until 2016, when more stringent sampling requirements go into effect.
The uneasy relationship made for a tense meeting last month when the agency called coal officials to MSHA’s headquarters to collaborate on the rule and take questions about how MSHA expects operators to comply. One participant immediately asked MSHA chief Joe Main to explain Main’s expectations about the nature of the interaction about the rule between the regulator and the regulated community.
ruce Watzman of the National Mining Association (NMA), a lead plaintiff in litigation over the regulation, asked whether MSHA envision the interaction as involving “mutually charting a course forward” or a one-way dialogue where operators present issues and MSHA responds. Main answered that the agency intended to adhere to the regulation and was seeking information on what MSHA needed to do to ensure a smooth transition to the rule and plug “holes that we need to plug.”
John Gallick of Alpha Natural Resources then asked Main to consider a delay of several months in the August 1, 2014, interim effective date for what he called administrative challenges. The rule becomes fully effective on August 1, 2016; however, certain provisions have to be met before then.
Gallick’s request was repeated by other corporate representatives and by Dennis O’Dell, Occupational Health and Safety Administrator of the United Mine Workers of America, who asked for a short delay so union miners have time to become familiar with the new mandate. O’Dell noted that union miners take their annual vacations between June and August and thus may not be available for training. Main suggested he might be flexible on the upcoming deadline only after Lou Barletta of Consol Energy pointed out that the agency had shown flexibility in previous rulemakings.
The agency will continue to review progress between now and the August deadline, Main said, then added, “We’ll look at where we are then.”
Gallick expressed concern inspectors might want to see adjustments to engineering dust controls and ventilation plan changes based on a single elevated result when a minor change to a work practice may be all that is necessary.
“I believe that’s going to be the first battle with the enforcement group,” Gallick said. “That’s my first concern administratively.”
MSHA’s Coal Administrator Kevin Stricklin replied that inspectors will give operators the benefit of the doubt in that case. But if over-standard results persist, MSHA would insist operators investigate more thoroughly to identify and correct the problem.
MSHA completed a series of six regional stakeholder meetings on the rule in May. Regulators offered to make their experts available for additional outreach meetings with individual operators, even at mine sites. Main said the agency also would schedule monthly sessions in June and July with meeting participants.
NMA, several state coal associations, and Murray Energy Corp. and its subsidiaries have gone to the court of appeals to overturn the rule. In addition to claiming the rule is economically infeasible, critics complain the agency ignored evidence that an increase in black lung disease is not widespread but found only in clusters and that MSHA has ignored proven, yet cost-effective approaches for controlling dust.