February 24, 2020

February 24, 2020

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Mining Association Seeks Stay of Coal Dust Rule

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

Suit was filed 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 concentrationstandardintheruleinfeasible. 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.”

Jackson Lewis P.C. © 2020


About this Author

Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

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Henry Chajet, Jackson Lewis, health safety attorney, dispute resolution lawyer, overcharge recoveries legal counsel
Of Counsel

Henry Chajet is Of Counsel in the Washington, D.C. Region office of Jackson Lewis P.C.

Mr. Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and “direct purchaser” overcharge recoveries for corporate clients in antitrust price manipulation cases. He defends investigations and enforcement actions by the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Environmental Protection Agency (EPA), Department of Transportation (DOT), National Transportation Safety Board (NTSB), National Institute for Occupational Safety and Health (NIOSH) and other federal and state agencies, as well as in related tort claims and criminal cases, and in EH&S whistleblower or discrimination claims.

To achieve an integrated defense strategy at the initiation of a government investigation or enforcement action, Mr. Chajet coordinates forensic accounting and technical experts, insurance issues, government interviews, document production and public relations experts. He has extensive experience representing clients in cases involving fatal or serious injuries, explosions, chemical releases, fires, manufacturing, transportation and construction accidents, mine disasters and allegations of product toxicity or community harm. Mr. Chajet has served as co-lead counsel in successful, multimillion dollar recovery cases for corporate clients that were “direct purchasers” of commodities and products for which prices were artificially increased through monopoly price manipulation, violating antitrust law.