The National Mining Association (NMA) wants MSHA to stay  the effective date of its final rule to control miners’ exposure  to respirable coal dust pending the outcome of litigation over  the rule. However, MSHA quickly denied the NMA request.

Jackson Lewis attorneys filed suit against the agency in the  U.S. Court of Appeals for the Eleventh Circuit on behalf of  NMA, Alabama Coal Association, Walter Energy and  Warrior Coal Co.  Previously, Murray Energy Corp. and its  subsidiaries filed a petition for review in the U.S. Court of  Appeals for the Sixth Circuit which has now been  transferred to the 11th Circuit. .

NMA’s Bruce Watzman wrote MSHA Assistant Secretary  Joe Main seeking the stay, stating that “various pieces of  the rule simply do not fit together.”

“[T]he implementation schedule and the new requirements  are misaligned and, as a result, preclude a fair and proper  opportunity for coal mine operators to comply with the  rule.  In many cases, compliance will be infeasible,” said  Watzman, NMA’s Senior Vice President for Regulatory  Affairs.  The regulation is set to go into effect in stages  over the next two years.

Watzman pointed to the requirement, effective August 1,  whereby operators must take "immediate corrective  actions" based on existing sampling technologies, which  cannot provide results instantaneously.  A device that can  provide near instantaneous measurements, the CPDM, is  not mandated for use until February 2016.  Therefore, the  requirement is impossible to achieve.

He also called attention to the requirement to use a single  dust sample to determine compliance, a change that can  only be made through joint MSHA/NIOSH rulemaking,  which did not occur.

There is a “high risk of inaccurate results,” he told Main,  adding that the approach makes meeting the reduced dust  concentration standard in the rule infeasible.  Surprisingly,  his concern was echoed by Cecil Roberts, head of the  United Mine Workers of America (UMWA).

While offering his union’s “qualified support” for the rule  in a statement released May 12, Roberts said, “We wonder  ourselves how things like the single-shift sample that will  be done by MSHA to enforce compliance will work, and if  there will be undue adverse consequences from it.”

Watzman also predicted MSHA’s application of its new  definition of “normal production shift” will cause operating  problems.  Further, he questioned whether technical  problems associated with the CPDM would be worked out  by 2016 or even if a sufficient supply of the new devices  would be available then.

In the first coalfields stakeholder meeting on the rule held  by MSHA on May 8 in West Virginia, an operator also  noted the high cost of the new monitor. He said his  company would have to spend $750,000 for 40 to 50 units  and asked if financial assistance would be available.  He  was told no assistance is built into the rule and that his  per-unit estimate was $3,000-$5,000 too low.

UMWA’s Roberts seem to share Watzman’s general concern  over how the rule is to be implemented feasibly. Roberts  said, “We hope that, as the stakeholders move forward in  understanding and implementing this rule, we can get more  clarity from MSHA as to how it will actually be applied and  enforced in an active working coal mine environment.”