Black lung rule: Sigh of relief, or industry chokehold? - Beckley, Bluefield & Lewisburg News, Weather, Sports

Black lung rule: Sigh of relief, or industry chokehold?

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Miners in West Virginia and across the nation have been plagued by black lung disease for decades; but future generations may be able to breathe a little easier as a result of the recently-released rule created by the United States Department of Labor’s Mine Safety and Health Administration.

The rule, which went into effect Aug. 1, aims to lower miners’ exposure to coal mine dust, consequently preventing coal worker’s pneumoconiosis, or black lung, for future generations. Provisions of the rule will revise current standards by lowering the existing exposure limits, improving sampling practices, requiring the use of continuous personal dust monitors for miners in high-risk occupations and mandating immediate reaction to high dust levels, among other provisions.

Proposed in 2010, the rule is the centerpiece of the administration’s End Black Lung campaign, which was launched in 2009.

Hot spots

According to data from the National Institute for Occupational Safety and Health, which was used to create the final rule, black lung has been a cause or contributing factor in the death of more than 76,000 miners since 1968.

And West Virginia is no exception — in fact, underground miners in the Mountain State saw more instances of black lung than any other state between 1970 and 2009, according to the NIOSH Coal Workers’ Health Surveillance Program.

But despite the heavy impact the disease has on the industry, the state and the country, not everyone was supportive of the proposal; MSHA saw multiple lawsuits from the coal industry when the rule was proposed.

The National Mining Association filed a lawsuit against the proposed rule in May, though spokesman Luke Popovich noted the suit had nothing to do with a dispute over the presence of black lung disease.

“Black lung is obviously a serious problem,” Popovich said; however, the organization took issue with the rule because the NIOSH science MSHA used to compose the rule does not report nationwide growth of the disease, he added.

“The NIOSH shows a regional instance of black lung, it doesn’t show national rise,” Popovich said. “We think that the authorities here missed an opportunity to change the regulatory paradigm they’ve been using and instead focus on those most affected areas.”

The evidence ought to support the regulation and we don’t see that the data that NIOSH supports rule that MSHA is proposing, he said. “We don’t think the science justifies the rule.”

The variations of instances of black lung certainly are sparse — 5,638 underground miners in West Virginia reported some grade of the disease between 1970 and 2009, whereas Washington and Oklahoma only reported one and Wyoming, the highest coal-producing state in the nation, reported only two, according to NIOSH data.

MSHA declined to comment on the pending litigation, but the final rule indicates that the administration took such comments into consideration while preparing the regulations, and decided that one instance of black lung was more than enough to require action against the disease.

“Overall, NIOSH surveillance data indicate that pneumoconiosis at the (lowest) level is occurring in underground coal miners across each MSHA Coal District in the United States; not just in the ‘hot spot’ areas of southern West Virginia, eastern Kentucky and western Virginia highlighted by some commenters,” the final ruling states.

Additionally, the U.S. Government Accountability Office did a study to test the strengths and limitations of the data MSHA used to create the final rule, which found that the data was appropriate for the recommendations that MSHA proposed.

Compliance costs

Many of those opposed to the rule have also expressed monetary concerns, dubbing the potential costs of compliance a waste of money to those regions that have had fewer reports of black lung.

“You’re requiring regions of the country that have no instance of elevated black lung to take new and costly measures,” Popovich said, adding that the rule hurts employment opportunities, particularly in high-cost regions such as West Virginia.

“(The rule is) simply another cost on top of others,” he said. “This is simply a case where we ought to be looking at a rational approach that solves the problem and simply doesn’t add regulatory costs where they serve no purpose.”

Murray Energy also filed a lawsuit against the DOL in April, expressing similar concerns. Although the company also declined to comment on the lawsuit, Murray called the rule “deeply flawed and irrational” in a statement.

“Instead of protecting miners’ health, this rule clearly seeks to destroy the coal industry, and the thousands of jobs that it provides, with absolutely no benefit to the health or safety of miners, whatsoever,” the Murray announcement stated. “(This mandate) will close mines, bankrupt coal companies, and destroy the lives and livelihoods of thousands of coal miners, without protecting the health or safety of our miners.

“We had hoped that the Obama Administration would promulgate a rule which is technologically feasible, economically sound and actually protects coal miners.”

During the public comment period for the proposed rule, MSHA received statements expressing similar concerns, though many were directed at the potential cost for small mines, which are defined by the Small Business Administration as mines employing between one and 500 people.

MSHA estimates the first-year costs of the rule to the coal industry to be $61 million, with an annualized cost of $28.1 million at a 7 percent discount rate, as per Office of Management and Budget guidelines. These rates equate to an average annual compliance cost of $18,450 for underground mines employing between one and 19 employees, and $59,950 for underground mines employing up to 500 employees. For small surface mines employing up to 19 people, the annualized compliance cost is estimated at $1,625, increasing to $3,300 for surface mines employing between one and 500 people, according to the analysis.

“Based on all analyses, the annualized costs of the final rule are less than 1 percent of annual revenue for both small underground and surface coal mines,” the final rule states. Additionally, the economic analysis states that “recent Census Bureau data shows mining in general with operating profits greater than 17 percent of sales and corresponding data after tax profits of approximately 10 percent.

“With these average profit levels, when the cost of a regulation has less than a 1 percent impact on affected industry’s revenues it is generally appropriate to conclude that the regulation is feasible,” the analysis continues.

Already afflicted

Despite concerns of cost and feasibility, many have expressed support for the rule in hopes of ridding future generations of the problems those already afflicted with the disease are currently battling.

Several state legislators saw this rule as a welcome change for the future of black lung in the state after being disappointed in early June when the West Virginia Department of Health and Human Resources announced that the U.S. Department of Health and Human Services’ Health Resources and Services Administration and awarded the state Bureau of Public Health and the West Virginia Primary Care Association $1.25 million in black lung funding — a $171,328 decrease from the previous year.

U.S. Sen. Jay Rockefeller, D-W.Va., was one of several lawmakers who supported the proposal in light of the funding cuts.

“Today, coal miners in West Virginia and around the country will go to work knowing we’ve taken a major step in halting the rise of black lung disease,” Rockefeller said in a statement July 31. “But this is not the last battle. We dare not claim victory — yet.

“Limiting dust exposure is just one part of this fight. Just as important is providing health care and financial support for those who are already afflicted with black lung.”

Rockefeller was unavailable for further comment on the rule.

In addition to the black lung clinic funds, the disease has cost $45 billion in federal compensation benefits, according to MSHA.

And, in contrast to concerns over the cost of compliance to the industry, the Black Lung Benefits Act puts the burden of paying for black lung claims on the coal companies. Coal operators are required to pay benefits to miners for whom they are held liable; in addition, the companies are required to pay an excise tax on coal sold, which finances the Black Lung Disability Trust Fund.

This year, the monthly rate paid to a single beneficiary for black lung benefits claims made through the DOL’s Division of Coal Mine Workers’ Compensation is $631.80 a month, and the rates increase with the number of dependents a beneficiary has. In fiscal year 2013, almost $200 million in income and medical benefits were disbursed through DOL claims paid by the Trust Fund and claims in interim pay status — not even including benefits paid by responsible coal mine operators and insurers, according to DCMWC data. West Virginia followed only Pennsylvania for such disbursements, costing more than $42 million during the year.

But some supporters seemed to overlook monetary values completely, highlighting the importance of miners’ health.

“While there will still be much more to do in order to get this rule fully implemented, I believe that we will see improvement in mine atmospheres soon, which will be to the miners’ benefit,” said United Mine Workers of America International President Cecil Roberts. “There will come a time when we will look back to this day as the point where we began to finally wipe out the deadly scourge of coal worker’s pneumoconiosis.

“On behalf of miners everywhere, thank you.”