'The Joe Main Agenda and Prospects for Mine Safety and ... Air Contaminants and DPM 3 The Joe Main Agenda and Prospects for Mine Safety and Health Legislation in 2010 The Agenda –

IMA-NA Webinar

The Joe Main Agenda and Prospects forMine Safety and Health Legislation in

2010

Presented by

Ed Green (202) 624-2922 and

Bob Glenn (202) 624-2656

Crowell & Moring LLP

January 21, 2010

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The Joe Main Agenda and Prospects for Mine Safetyand Health Legislation in 2010

The Agenda – Introduction

• Reform of the MSHA Coal Mine Respirable DustProgram

• Emphasis on Silica

• Noise

• Air Contaminants and DPM

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The Joe Main Agenda and Prospects for MineSafety and Health Legislation in 2010

The Agenda – Introduction

• Revitalization and Strengthening of MSHA’sTechnical Expertise

• Reinvigoration of Mine Rescue Capabilities

• Improvement of Communication Between MSHAand its Stakeholders

• More Balanced Law Enforcement

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New Players at MSHA

• Joe Main

• Greg Wagner

• Jim Weeks

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Old Players at MSHA

• Mike Davis

• Melinda Pon

• Neal Merrifield

• Bill Wilson

• Patricia Silvey

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New and Old Players at DOL-SOL

• Heidi Strassler – Acting Associate Solicitor, MineSafety & Health

• April Nelson – Acting Deputy Associate Solicitor, MineSafety & Health

• Chris Schumann – Counsel for Appellate Litigation

• Tom Paige – Co-Counsel for Trial Litigation

• Keith Bell – Co-Counsel for Trial Litigation

• Jack Powasnik – Acting Counsel for Regulations

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New Players at Main DOL

• Secretary of Labor – Hilda Solis

• Deputy Secretary – Seth Harris

• Assistant Secretary for Congressional Affairs –Brian Kennedy

• Acting Solicitor – Deborah Greenfield(Patricia Smith – nominee in trouble)

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Reform of the MSHA Respirable DustProgram

• A Coal Issue--but lessons for industrialminerals?

• What is the Problem?

• MSHA's Likely Proposed Solution

• Lower the Standard

• The Personal Dust Monitor

• Separate and Lower Silica Standard

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Diseases Caused by the Inhalation ofRespirable Coal Mine Dust

• Fibrotic diseases – damages / destroys lungtissue– Coal Workers’ Pneumoconiosis (CWP)

– Silicosis

• Airflow diseases – Chronic ObstructivePulmonary Disease (COPD) – blocks movementof air in and out of the lungs– Industrial bronchitis

– Emphysema

– Mineral dust airway disease

• TB – risk is increased in coal miners,particularly those with high silica exposure

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NIOSH Reports Increasing RespiratoryDiseases in Coal Miners

• Prevalence of pneumoconiosis isrising in miners with greaterthan 20 years of mining tenure(among those who were x-rayedin the NIOSH monitoringprogram)

• Cases of severe disease beingseen in young workers (<40years old)

• Prevalence of pneumoconiosisfar greater than expected

• More miners are dying withCWP than from mining injuriesdue to accidents

• Miners are at greatly increasedrisk for other chronic lungdiseases (COPD) from dust

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NIOSH Reports Increasing Prevalence ofCWP in Underground Miners

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CWP Decreases 1970-1999

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Coal Mine Dust Levels 1979-2003

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CWP Increases After 2000

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MSHA Regulatory Agenda

Title: Occupational Exposure to Coal Mine Dust (LoweringTitle: Occupational Exposure to Coal Mine Dust (LoweringExposure)Exposure)

•• ““While significant progress has been made towardWhile significant progress has been made toward

improving the health conditions in our Nation's coal mines,improving the health conditions in our Nation's coal mines,miners continue to be at risk of developing occupationalminers continue to be at risk of developing occupationallung disease, according tolung disease, according to NIOSHNIOSH..””

•• September 1995,September 1995, NIOSHNIOSH issued a CD which recommendedissued a CD which recommendedthat the respirable coal mine dust permissible exposure limitthat the respirable coal mine dust permissible exposure limit((PELPEL) be cut in half) be cut in half

•• RecentRecent NIOSHNIOSH data indicates increased prevalence ofdata indicates increased prevalence of CWPCWP"clusters" in several geographical areas, particularly in the"clusters" in several geographical areas, particularly in theSouthern Appalachian RegionSouthern Appalachian Region

•• Timetable:Timetable:

–– NPRMNPRM 09/00/201009/00/2010

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Respirable Coal Mine DustRespirable Coal Mine DustRulemaking StrategyRulemaking Strategy

•• Data Sources:Data Sources:

–– NIOSH CNIOSH CDD Occupational ExposureOccupational Exposureto Coalto Coal Mine Dust (1995)Mine Dust (1995)

–– Report of the AdvisoryReport of the Advisory CommitteeCommitteeon the Elimination ofon the Elimination ofPneumoconiosis Among Coal MinePneumoconiosis Among Coal MineWorkersWorkers (1996)(1996)

•• Actions:Actions:

–– EvaluateEvaluate and actand act on the most usefulon the most usefulrecommendations of therecommendations of the reportsreports

–– Consider changes to existingConsider changes to existingstandards onstandards on respirable coal minerespirable coal minedust and silica/quartzdust and silica/quartz

–– Improve the MSHA/NIOSHImprove the MSHA/NIOSHapproval requirementsapproval requirements for thefor theexisting dust sampler and establishexisting dust sampler and establishapproval requirements for theapproval requirements for thecontinuous personalcontinuous personal dust monitordust monitor(CPDM)(CPDM)

–– Use the CPDM to improveUse the CPDM to improvecompliancecompliance

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Emphasis on Silica

• The Current MSHA Coal and MNM Standard

–Metal Nonmetal

–Coal

• The NIOSH REL

• A Word about OSHA's Crystalline SilicaRulemaking

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Silica Metal Nonmetal

% Respirable quartz + 2% Respirable quartz + 2

10 mg/m10 mg/m3 k)3 k)

==TLVTLV for respirablefor respirable

dust in mg/mdust in mg/m33

k) Both concentration and percent quartz for the application of this limit are todetermined from the fraction passing a size-selector with the followingcharacteristics (not shown on slide).

“…adopted by the American Conference of Governmental IndustrialHygienists, as set forth and explained in the 1973 edition of the Conference'spublication, entitled "TLV's Threshold Limit Values for Chemical Substancesin Workroom Air Adopted by ACGIH for 1973,…”

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Silica Coal

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History of NIOSH Positions Related toCrystalline Silica

• 1974 NIOSH Criteria Document – Crystalline Silica (adversehealth effect was silicosis)

– NIOSH recommended that exposure to respirablecrystalline silica dust be controlled so that workerswould not be exposed at a TWA concentration greater 50µg/m3 for a full-shift sample for up to a 10-hr workdayduring a 40-hr workweek.

• 1988 NIOSH Testimony in the OSHA rulemaking for the PELupdate

– NIOSH recommended an exposure limit of 0.05 mg/m3

– NIOSH testimony referred to the IARC [1987] reviewand recommended that OSHA label crystalline silica apotential occupational carcinogen [54 Fed. Reg. 2521(1989)].

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OSHA Regulatory Agenda

Title: Occupational Exposure to Crystalline Silica

• Both industry and worker groups have recognized acomprehensive standard for crystalline silica is needed

• IARC has designated crystalline silica as a known humancarcinogen

• The legal basis for the proposed rule is a preliminarydetermination that workers are exposed to a significant riskof silicosis and other serious disease and that rulemaking isneeded to substantially reduce the risk

• Timetable:– Completed SBREFA Report 12/19/2003– Initiate Peer Review of Health Effects and Risk Assessment

05/22/2009– Complete Peer Review 01/00/2010– NPRM 07/00/2010

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MSHA Regulatory Agenda

Title: Respirable Crystalline Silica Standard

• Overexposure to crystalline silica can result in some minersdeveloping silicosis, an irreversible but preventable lung disease,which ultimately may be fatal

• The Secretary of Labor's Advisory Committee on the Eliminationof Pneumoconiosis Among Coal Mine Workers made severalrecommendations related to reducing exposure to silica

• NIOSH recommends a 50 ug/m3 exposure limit for respirablecrystalline silica, and ACGIH recommends a 25 ug/m3 exposurelimit

• Evidence indicates that exposure to silica may cause cancer• MSHA intends to use OSHA’s work on the health effects and risk

assessment, adapting it as necessary for the mining industry• Timetable:

– NPRM 04/00/2011

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Noise

• Re-emphasis on protection of miners againstoccupational hearing loss

• Many feasibility issues still exist

• “P” Codes

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Air Contaminants and DPM

• In the 1990s OSHA-MSHA rulemakings

• A legislative solution (S-MINER Act section 8)?

• The final DPM PEL of 160 TC for undergroundMNM miners

• DPM exposures of surface miners

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Revitalization of MSHA's TechnicalExpertise

• Concerns about retirement of key personneland need to replenish lost skills

• Affects the most mundane MSHA actions

• Critical that industry provide high-qualityscientific/engineering, economic input intodisputes about enforcement issues and

rulemakings

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Reinvigoration of US Mine RescueCapabilities

• Need for a much more robust nationwidecapability

• From Scotia to Sago--and Back Again?

• Goal is unassailable; funding is problem

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Improvement of CommunicationsBetween MSHA and Its Stakeholders

• Recognition that MSHA inspectors are not doinggood job of explaining their enforcement actionsto operators or miners

• A believer in "compliance assistance"; defined aswhen inspectors act they use the action as"teachable moments"; why was action taken; howto correct it; and how to prevent it fromhappening again

• Retirements from MSHA and industry ofindividuals of enormous credibility; practicalexperience; teaching ability

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Improvement of CommunicationsBetween MSHA and Its Stakeholders

• Generational changes in MSHA and industry –newer people do not see value and merit ofperspectives of all MSHA stakeholders andMSHA itself

• Joe Main a strong advocate and practitioner ofbeing accessible; listens carefully to all sides tomake informed and timely decisions

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More Balanced Law Enforcement

• Factors put into place by his predecessorand the Congress

–New Part 100

–MINER Act enforcement and penaltyprovisions

–Loss of the "close-out conference“

–Demise of the timely and effectiveconference process with CLRs

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More Balanced Law Enforcement

• Bringing the pendulum back to the center;can he do that?

• Filling the gaps in miners' safety and health

• Aggressive enforcement and expansion ofMine Act's statutory miners' rights andprotections

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Prospects for New Mine Safety andHealth Legislation in 2010

• The MSHA Wish List (March-April 2009)--Some Highlights

–Feasibility of flame-resistant belts in all undergroundMNM mines

–Types of seals and monitoring of same in gassy MNMmines

–Avoid transfer of liability from operators to contractors

–MSHA jurisdiction re mixed-use roads, reclamationactivities, tree-cutting, fly-rock beyond mine propertyline

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–New definition of "S&S" that establishes originalintent of Mine Act

–New definition of "unwarrantable failure" thateffectuates original intent of Mine Act

–An OSHA-like “general Duty clause”

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–Miners' Rights--Newly Protected Activities• Miners' reporting of mine-related injury or illness• Miners' refusal to work in dangerous conditions• No stay of discrimination cases for resolution of grievance

proceedings• Explicit right of Solicitors to communicate with non-

managerial employees• Establish "conflict of interest" for counsel to

simultaneously represent both an operator and individualminers

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The MSHA Wish List is not Joe Main'sWish List

• Joe Main in close touch with committees ofjurisdiction over MSHA and the Mine Act

• No apparent interest in investing his time andenergy into mine safety legislation

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House Education and Labor Committee

• Chairman George Miller remains very interestedin mine safety legislation

– Very pro-union

– Key ally of Speaker Pelosi

• A primary concern-- the caseload at theFMSHRC; is there an industry effort to "crashthe system"?

• Other issues

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Key House Education and LaborCommittee Democratic Staff

• Richard Miller--senior labor policy advisor

• Michael Zola--chief investigative counsel

• Patrick Findlay--investigative counsel

• Lynn Dondis--counsel, subcommittee onworkforce protections

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Senate Health, Education, Labor, andPensions ("HELP") Committee

• Will let House take the lead

• Cannot count on no action in the Senate

– HELP Committee Chairman Tom Harkin (IA)--perhaps the most pro-union senator

– Father was a coal miner; family members are miners

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Senate Health, Education, Labor, andPensions ("HELP") Committee

• Key HELP Committee Staff

– Livia Lam--labor policy advisor

– Michael Waske, professional staff member,subcommittee on employment and workplace safety

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Conclusions

• Joe Main is the first union man to head MSHA

• May be the most knowledgeable and experiencedsafety and health professional to hold the post

– Other MSHA chiefs have had both safety andoperational experience—

•Dave Zegeer

•Dave Lauriski

•Richard Stickler

• Joe Main has no operational experience

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When Takes Oath of Office, Swears toUphold the Law (Even-Handedly?)

• Will he blindly bow to organized labor?

• Our bet is he will not

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Educate Joe Main, Greg Wagner, andJim Weeks?

• All coal men

• Teach them about MNM; otherwise ignore atyour peril

'The Joe Main Agenda and Prospects for Mine Safety and ... Air Contaminants and DPM 3 The Joe Main Agenda and Prospects for Mine Safety and Health Legislation in 2010 The Agenda –

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