The U.S. House of Representatives will abolish its Climate Change Committee when the new Congress is seated in January.
According to a spokesman for incoming Speaker of the House John Boehner (R-Ohio), “The Committee was created by Democrats simply to provide political cover to pass their job-killing national energy tax.” It was established in 2007 by House Speaker Nancy Pelosi (D-CA) and chaired by Rep. Ed Markey (D-Mass.).
Statement of the West Virginia Coal Association to the US Department of Labor's Mine Safety and Health Administration proposed rule "Lowering Miners' Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors.” Public Hearing at the National Mine Health & Safety Academy, Beaver, WV -- December 7, 2010.
Introduction: We appreciate the opportunity to participate in today’s hearing. The West Virginia Coal Association is a trade association comprised of coal producing companies who collectively account for approximately eighty-five percent (85%) of West Virginia’s annual coal production. Our membership also includes mine maintenance and specialty contractors, mine reclamation companies, equipment manufacturers, land companies and general service companies.
The state of West Virginia is the nation’s leading underground coal producing state, averaging 155 million tons of annual coal production over the past decade and nearly 200 underground mining operations and employing 16,000 underground miners. Consequently, the state of West Virginia and our member companies are arguably affected more directly by this proposal than any other state.
West Virginia is also part of a group of eastern coal states i.e. states that produce coal east of the Mississippi River who account for approximately forty percent (40%) of the nations production of coal and nearly eighty percent (80 %) of the nations coal workforce. This region of the country has seen it share of national production fall from a high of 623 million tons recorded in 1990 to an estimated 339 million tons or a 46% drop this year (2010).
The Central Appalachian states of this region, principally comprised of WV, KY, & VA, have also been under attack by the Obama Administration and the federal agencies with responsibility for mining that collectively seem destined to see production from this region severely restricted and all associated mine permitting and operating costs elevated! (We would hope that this rule as proposed is not part of that strategy.)
With that backdrop, our interest in this rule-making and today’s hearing is obvious as is our desire to see coal workers pneumoconiosis (CWP) eliminated from the industry. In fact, our member companies and today’s workforce currently work tirelessly together to maintain the lowest possible levels of respirable coal dust in their respective operations. This is accomplished daily by the deployment of state of the art dust control and mine ventilation technologies, combined with human resource development programs and critical oversight of an array of best management practices.
We also would observe for today’s record that the improvements made in these areas are prevalent throughout the industry and are attested to daily by the ever improving conditions of underground mining and the significant decrease in the incidence of CWP over the past couple of decades. The preceding statement is not meant to suggest that problems do not exist nor does it imply that further improvement cannot be made. It is simply intended to observe all the progress that has been made and is a matter of record today.
WVCA Position and Objection to the Rule: Regarding MSHA’s proposed rule: "Lowering Miners' Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors” and subject of today’s hearing, our primary position and comment is that we strongly object to the proposal in its current form -- which is fraught with technical and operational impracticalities; misapplication of dust control technologies; relies on a convoluted and inappropriate or uneven enforcement scheme; circumvents recent Congressional activity on this subject and represents a departure from the cooperative approach deemed necessary to eradicate coal worker pneumoconiosis form the industry.
Accordingly, we respectfully request the agency to dispense with and set aside this rule making. Alternatively, we recommend that MSHA continue on the course it set out last year when it launched the “End Black Lung” initiative.
That approach, which was all encompassing, clearly envisioned all interested parties i.e. government, labor, health care and industry to work together towards our shared goal of “ending black lung”. It is unfortunate that the spirit of the “End black Lung” initiative and ability for all affected parties to continue to work effectively going forward have been severely compromised as the result of this rulemaking.
We would also note for the record that the same general topic addressed by this rulemaking was also addressed in the proposed comprehensive federal mine safety legislation currently being developed by Congress. Countless hours of research, deliberations and valuable Congressional time is devoted towards this effort which includes input among all interested parties. Arguably, MSHA is circumventing Congress and is on course to unilaterally and selectively implement provisions of proposed federal legislation for it rulemaking agenda. This is a concerning trend. MSHA has recently issued new requirements for the “Pattern of Violation” program and “Rock Dusting” in underground mines which were also part of the active agenda of Congress.
Note: So as to avoid the suggestion that we only offer criticism towards the present proposed rule, we will also forward a series of recommendations for your consideration as part of our final comments. Recommendations that would otherwise be advanced, openly discussed and evaluated had we been provided the opportunity in a different forum.
Basis for the Rule: We note for today’s record that we believe MSHA places unparallel weight and support for the rule behind the study information presented by Dr. Michael Attfield, Chief, Division of respiratory Disease Studies, NIOSH, titled: “ Black Lung“.
Other than vague references in the rule preamble, the agency has not discussed the report data, its methodologies and conclusions in an open and engaging manner with all interested parties.
Although the report contains noteworthy information, we are left to question the basis for its findings and recommendations.
Quite frankly, the report has not undergone the level of scrutiny nor has it been subjected to the degree of peer review required if it is going to be relied upon to drive rulemaking and attendant requirements of this magnitude.
We do not believe the data has been substantiated for accuracy or fact nor does it necessarily support the provisions within the proposed rule. Rather, the conclusions drawn from the report appear to be predicated on the opinion of its author.
The report also largely ignores the effect and realities of mine inspector presence within the noted hotspot regions and realities of the mining industry. In other words, if so called hot spots either exist or exited within certain geographical areas, and are further, the result of substandard mine operation practices, then the underlying problems should have been long alleviated or remedied and simply do not warrant industry wide rule making.
The industry has made repeated requests for the underlying data which has been relied upon to drive the conclusions contained in the report. We make the same request today. We simply want the ability to engage our experts with the same data points to determine whether the findings and conclusions are consistent with those of the report authors or perhaps we may find that they direct further research or provide focus in some other direction. Plainly and simply put, MSHA has not adequately supported the need or desirability of many of the provisions within the rule.
Fiscal impact/Analysis: We also raise the question whether MSHA has complied with its mandate to performing a sound fiscal impact statement and analysis of the proposed rule. Even a cursory review of the fiscal information which accompanies the proposed rule indicates the numbers are off the mark and woefully understated. This has been a recurring practice of the agency in recent years. Consequently, the numbers provided by MSHA make it impossible to ascertain the true costs of the proposed rule and all but obviates a cost-benefit analysis of the proposal.
MSHA has calculated the compliance costs of the proposed rule for underground coal operators to be less than $40 million annually. This estimate drastically understates the cost of the proposed rule. The complexity of the rule and the administrative burden placed on operators is extraordinary. Operators are currently required to collect approximately 25,000 Designated Occupation (DO) samples per year. The proposed rule requires underground coal operators to collect nearly 750,000 DO and ODO samples each year. The administrative cost of the rule will exceed $75 million per year for underground coal operators.1 and total compliance costs could easily exceed $1 billion per year as operators are forced to adjust production schedules, modify mining methods and alter effective mine ventilation systems by adding additional overcasts, permanent stopping lines and additional air shafts.
The ‘Compliance Cost’ section of the proposed rule identifies three situations in underground mines in which mine operators ‘could incur’ additional costs. One of these situations is ‘mines that have multiple MMUs on a single split of air.’ This situation is directly related to the proposed plan’s revision to the current 30 CFR 75.332(a)(1) standard which now requires that: ‘Each working section and each area where mechanized mining equipment is being installed or removed, shall be ventilated by a separate split of intake air directed by overcasts, undercasts or other permanent ventilation controls.’
Although this section of the proposed rule identifies that there ‘could be’ additional costs, there is no specific discussion to outline the benefit or how much the estimated additional costs could be. In most cases, additional overcasts would have to be installed along with an additional intake stopping line to deliver the intake air to each individual MMU within the same working section. In many cases, this would also require the installation of additional air shafts. Although this may not have been the intent of the proposed rule, the strict language of the revised 75.332(a)(1) standard dictates the addition of these permanent ventilation controls would be mandatory.
Many underground coal mines in the United States successfully operate two independent and separate MMUs within the same working section. In these cases, two separate production crews and two separate sets of mining equipment are used. Each MMU is ventilated with a separate split of intake air. The is accomplished by using permanent ventilation controls to direct an intake air split to the working section and then splitting the intake air split near the working places inby the section loading point using approved temporary ventilation controls so that two separate and distinct splits of intake air ventilate the working faces. This method of ‘fishtail’ ventilation provides a separate split of intake air for each set of mining equipment associated with the individual MMU. The separate intake air split provided to each MMU has not been used to ventilate any other working section. This method of providing ‘fishtail’ ventilation for two MMUs being operated on the same working section was outlined in the Federal Register dated May 15, 1992, and was intended to provide miners with a separate intake air split that was not contaminated with gases or dust from another set of mining equipment. As a result of the success of this type of ventilation scheme from a health and safety standpoint, many mining operations have designed their coal mines to operate two MMUs within the same working section.
The 75.332(a)(1) standard was again addressed in the Federal Register dated March 11, 1996, during the revision of the 1992 ventilation regulations. At that time, commenters suggested the standard be revised to permit the installation of mechanized mining equipment in either the return or intake air courses of working sections. However, the risk of introducing hazards associated with mine fires and/or explosions was identified as the reasons the final rule did not adopt the suggestion. The safety benefits of using a separate split of intake air were well established from the final rule promulgated in 1992.
The operational cost of redesigning the ventilation systems of underground mines would be excessive and unnecessary. There have not been any recent mining disasters related to ‘fishtail’ ventilation. The permanent ventilation controls have proven effective in delivering a separate split of intake air to the working section. In conjunction with the permanent ventilation controls, the approved temporary ventilation controls have proven effective in splitting the air near the working places to provide each MMU with a separate and distinct split of intake air.
Proposed Rule/Comment: As previously stated, we intend to submit our specific objections and recommendations on a section by section basis to the proposed rule prior to the end of the written comment period. However, here are several areas of “general” concern and observations we’ll note today. These include:
1. PDM. We do no believe mandating PDMs is appropriate at the time. This position is based on factual information by testing of the unit by several companies and the deficiencies and or problems experienced during this period of evaluation. Further R&D with the unit should commence immediately and be expedited. Also, this unit weighs approximately 6 lbs. and is simply too bulky especially when it is factored along with the other items that a miner is required to carry on their possession;
2. PDM technology is most effective when used in combination with a dose concept (weekly), not single shift exposures. The weekly accumulated dose, based on the amount of mass a person is exposed to, is what is important.
3. PDM technology, with real time exposure read out, should make the dust control plans less detailed, since the person would be able to make corrections if they see exposures increasing. The proposed rule, with required plan changes for each overexposure, could make the dust plans enormous and impractical.
4. PDM technology would be most effective when used as a personal sampler, not with a designated occupation sample.
5. PDM’s are too big and heavy. The cap lights should be eliminated from the unit and the PDM should be made smaller and more ergonomic prior to implementation nationwide.
6. PDM’s need more “in mine” testing to work out durability and reliability issues discovered during more extensive use.
7. At a minimum mine operators should be permitted to use administrative controls to minimize respirable dust exposure to individual miners, particularly, when confronted with abnormal geologic abnormalities;
8. Scrubbers should be operated and properly maintained at all times for continuous miners operated in development areas with a curtain setback necessary to allow the scrubber to operate effectively;
9. Make the volume of air at the end of the line curtain compatible with the scrubber volume to increase the efficiency of the scrubbers cleaning ability;
10. Allow the operator to determine the best dust control methods for individual mines for mean entry air velocity, volume of air at end of line curtain, water spray configuration and output in gallons per minute and psi rather than MSHA imposing unrealistic numbers that do not take into consideration the differing mining conditions for different seams and mines and especially when such MSHA imposed controls increase individual miner dust exposure. Work with the industry to utilize available information from previous studies of air flow and line curtain configurations in underground mines in order to better manage respirable dust instead of imposing universal guidelines that ignore current science;
11. End the practice of imposing plan revisions based on a single respirable dust sample in contravention of applicable MSHA policy that all violations are to be based on the average of 5 valid respirable dust samples;
12. Work with the industry to investigate and verify that the current respirable dust sampling system is accurate and is not being adversely affected by the present analysis system and protocols including; the practice of sending dust cassettes by mail, by standards and practices of current dust cassette manufacturing and verification of pre and post cassette weights; laboratory protocols, measurement and reporting of dust cassette results. The MSHA Respirable Dust Sampling Procedures are flawed in many ways that do not reflect accurate measurements of the miner’s exposure to respirable dust;
13. The procedures set forth in Chapter 1 for quartz evaluation are flawed and are not being followed by MSHA. In some instances, MMU’s are not being evaluated on MSHA samples when the weight gain has been adequate for an evaluation. Operator samples are not being evaluated every six months when there has been adequate weight gain for evaluation;
14. Since July 1, 2010, MSHA has been voiding operator samples based on a comparison of the bimonthly samples with an MSHA collected sample in the intake air course months before the operator samples were collected. This comparison is unfair since no documentation is recorded of the activities that were being conducted in the intake air course during the shift that the MSHA sample was collected; and,
15. Record keeping of production, shift length, etc. is too extensive. The PDM sample time is set according to shift length, and production shouldn’t matter. In a personal sampling scenario using the dose concept, only the weekly accumulated dose would be of concern. Entering shift overexposures in a fireboss book as a hazardous condition by a non-certified person may be problematic.
Conclusion: As a concluding comment we restate our main objective to provide a safe and healthy environment for our employees. Our mine managers, engineers and technical staff join with them daily to accomplish this overriding goal. We support MSHA’s “End Black Lung” initiative and pledge our support and eagerness to work with all interested parties to eradicate this disease from our industry. We possess and commit the expertise, technical competence and operational experience towards that end. However, for the reasons stated herein, we strongly object to the current proposed rule and respectfully request the agency to discontinue this rule making.