It’s good we have new standards to prevent black lung. But they’re still too low. | Opinion

During the 15 years that have passed since our organization first petitioned the Mine Safety and Health Administration (MSHA) to create a rule to stop the surging black lung epidemic, we’ve seen a frightening pattern among the miners who have come through our doors. Scores of miners visit our office for help with their claims related to black lung– and not only is the number of miners not decreasing, but those we see have been younger and sicker than ever before.

Black lung may feel like an ancient problem to many in Washington, D.C., but it hasn’t gone anywhere – it’s only gotten worse. Many of our clients are suffering from an increasingly severe disease and will likely experience horrible, suffocating deaths. That’s why so many were fighting so hard for MSHA to release a strong standard to curb silica dust – the inhalation of which is the driving factor of the ongoing black lung epidemic. And it’s why, while we’re grateful there is finally a standard on the books, we’re mourning the opportunities that were missed to save lives.

Last week, MSHA finally released a long-awaited rule to limit miners’ exposure to silica dust. Silica dust exposure has largely supplanted coal dust exposure as the primary driver of the black lung epidemic in Central Appalachia. Now, at least one in five tenured miners has black lung disease and one in 20 has the most severe and totally disabling form of black lung. A decade and a half ago, we urged MSHA to create a lower standard for silica dust exposure based on the clear evidence produced by health experts showing the toxicity of the dust.

Thankfully, the new standard limits miner exposure to silica dust levels that have long been recommended by officials in the National Institute of Occupational Health and Safety and elsewhere. We’re glad to see a step towards progress – however, we’re concerned that there is too much reliance on mine operators to engage with the rule in “good-faith” and that the impacts of the rule fall short of the mandates in the Mine Act.

We are concerned that too much of the rule is reliant on infrequent and unsupervised coal operator dust sampling and self-audits of changing dust conditions in the mines.

Last summer, we provided comments to MSHA encouraging them to require more frequent dust sampling and, in particular, more frequent sampling conducted by MSHA inspectors instead of coal mine operators. We provided testimony from many miners illustrating that coal operators will look for every opportunity to cheat on dust sampling. Yet, now, the rule presumes that those who have historically had no issue with manipulating sampling results, will change their practices. That gives us little confidence and we fear that miners will continue to be exposed to toxic levels of dust.

MSHA’s own risk analysis also demonstrates that this exposure level still falls short of the mandates in the Mine Act. The Mine Act mandates that working conditions in the mines be “sufficiently free of respirable dust concentrations in the mine atmosphere to permit each miner the opportunity to work underground during the period of his entire adult working life without incurring any disability from pneumoconiosis or any other occupation- related disease.”

In other words, if a mine is going to make miners sick from toxic dust, miners shouldn’t be working in it. Yet, MSHA’s analysis of the rule projects that it will prevent 85 deaths and 325 cases of non-fatal silicosis in coal miners over 45 years. However, it also projects that 1,372 miners will still become ill and 2,940 will die from over-exposure to silica.

MSHA acknowledged that a stronger standard would further reduce death. However, they also state that a lower limit was not considered because it “would not be technologically feasible for all mines.” This approach to rulemaking establishes, in monetary terms, the benefit of protecting the life and health of a miner versus the costs to the mining industry of implementing safeguards. As a result, the rule prioritizes the economics of the industry over the lives of miners, meaning more miners get fatally ill, and the mandates of the Mine Act are contradicted.

It will be difficult to explain to mining families why, from the perspective of the law, the lives of their loved ones are less important than allowing some mines that are incapable of protecting their workforce to continue to operate. Unfortunately, that will be the result of this new standard. This rule importantly will curb some incidence of black lung, but it will not wipe out this preventable disease as miners deserve.

Rebecca Shelton is the Director of Policy for the Appalachian Citizens Law Center in Whitesburg, Kentucky.