Fuming Over Mining Rule

By Cindy Skrzycki
Tuesday, February 14, 2006

Much regulation is reactive, driven by tragedy or public exposure of a problem.

Certainly that has been the case at the Mine Safety and Health Administration , which is reexamining various mine-rescue equipment and technologies in the wake of recent tragedies at three mines. The Bush administration had pulled back some 18 potential MSHA rules since 2001, claiming new regulatory priorities and noting a decline in mine fatalities.

But while there is renewed interest in safety for coal miners, MSHA is considering a proposal to delay by five years another important safety rule for other miners that was issued in the last days of the Clinton administration. It is designed to control the effects on miners of diesel fumes and particulate matter, which increase the risk of cancer and cardiovascular disease, in underground metal and non-metal mines, which include those mining for limestone, salt, gold, gypsum, platinum, silver and the like.

In September, MSHA proposed putting off the Jan. 20, 2006, effective date of the new rule for four months while comments were collected on whether companies should be given until 2011 to comply.

The Clinton rule gave mine owners five years to reduce diesel fumes in these mines to 160 micrograms per cubic meter of air from the existing standard of 308 micrograms. (There is a separate and uncontested diesel-particulate rule covering the 40,000 underground coal miners.)

It called for operators to meet the new standard by using low-sulfur fuels, engine filters, updated equipment and ventilation. The agency said at the time that some 18,000 miners are exposed "to far higher concentrations of diesel particulate matter than anybody else" -- up to eight times the median exposure for other occupational groups.

But the mine industry opposed the rule, citing differences over how diesel fumes affect health, how diesel particulates should be measured and what level of reduction is feasible.

Led by Patton Boggs attorney Henry Chajet , a group called the Mining Awareness Resource Group Diesel Coalition filed two lawsuits. One was over the rule and one was over the handling of an epidemiological study by the National Institute for Occupational Safety and Health and the National Cancer Institute .

"The rule adopts a limit that is invalid, has no scientific basis and is not achievable from an engineering standpoint," Chajet said. "We have been stuck with this giant failed high school science project for five years."

The coalition is made up of mining companies and gets financial support from the National Mining Association , the industry's Washington trade group. The coalition and the NMA met with officials from the Office of Management and Budget in August to voice their concerns about the rule, one participant recalled. A month later, MSHA proposed postponing the effective date of the rule.

Bruce Watzman , the NMA's vice president of safety and health, said operators have been raising objections because of the rule's "flawed assumptions relative to the industry's ability to comply with its requirements." He said the unique conditions of each mine make it difficult for mines to comply with even the interim 308 microgram level in effect.

Dirk Fillpot , a MSHA spokesman, said the proposal to implement another five-year phase-in period is based on "concerns about the technological difficulties mine operators might have with compliance."

An article recently published in an academic journal pointed out that some mines have significantly reduced miners' exposures using alternative fuels and technologies.

The prospect of the mining industry not having to comply with the reduction has distressed the United Steelworkers and some mine-safety experts, many of whom were involved in creating the original rule.

"Our friends have come up with suggestions to delay the rule for further study or have petitioned the agency for a series of delays," said J. Davitt McAteer , a former head of MSHA leading the state investigation into the Sago, W.Va., mine disaster. "It's most unfortunate. It exposes individuals to exhaust from diesels that are carcinogenic."

Michael Wright , director of safety and environment for the steelworkers union, said the effects of diesel particulate matter are not as immediate or stunning as the 12 Sago fatalities. He said it's easier to overlook deaths "from terrible, lingering diseases."

"We don't think there is any reason for a lengthy delay. The standard is feasible and necessary," he said.

Several members of Congress also object to a delay .

"It is disgraceful for the Bush administration to delay this rule when there is significant evidence that diesel fumes can sicken and kill mine workers. Once again, the administration is putting the interests of its corporate allies ahead of the wellbeing of workers. This rule should not be delayed for another day," said Rep. George Miller (D-Calif.) , ranking minority member of the Education and Workforce Committee , which oversees the Department of Labor , of which MSHA is a part.

Reps. Miller, Major R. Owens (D-N.Y.) and Dennis J. Kucinich (D-Ohio) wrote to Labor Secretary Elaine L. Chao last month asking that the rule be put into effect without further delay. "There has been an intensive campaign by the non-metal mining industry to delay and weaken this rule. It is unfortunate that the Department's actions since 2001 have been guided by the unsubstantiated assertions of the industry rather than the extensive rulemaking record."

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