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Mine group, firms want courts to stop new rule designed to slow black lung

The mining industry is seeking a court review of the Obama administration’s new rule aimed at cutting the amount of coal dust in coal mines.

The National Mining Association, the Alabama Coal Association and others filed the petition May 1 with the U.S. Court of Appeals for the Eleventh District in Atlanta.

The NMA has also asked the Labor Department’s Mine Safety and Health Administration (MSHA) to postpone the effective date of the rule pending judicial review.

“The paramount issue here – the protection of our workforce – demands focused and effective solutions that deliver real protections to those who need them. These solutions are absent in this ‘onesize fits-all’ approach that fails to reflect the constructive suggestions from representatives of industry and labor,” NMA President and CEO Hal Quinn said in a release issued Monday. “We are left with no choice but to seek judicial intervention to resolve these important concerns,” Quinn added.

The NMA petition was filed on the same day Ohio-based Murray Energy sued the Obama administration, claiming that the new federal regulations designed to cut down on black lung disease are overly burdensome and costly to industry.

Murray Energy’s lawsuit against MSHA was filed in the Sixth U.S. Court of Appeals in Cincinnati, and also seeks review of the federal rule. The St. Clairsville, Ohio-based company argues the department failed to adequately take into account the input of technical experts and the coal industry.

“The Obama administration has no interest in protecting miners and, instead, is only seeking to further their own agenda, specifically, their ‘War on Coal,’ which has been destroying the jobs and livelihoods of thousands of coal miners and their families,” according to Gary Broadbent, Murray Energy’s assistant general counsel.

The Labor Department, which did not have immediate comment, has said it believes that reducing coal dust — rather than just requiring protective gear — was needed if the U.S. hoped to reduce incidence of black lung disease. Symptoms of the disease include chronic coughing and shortness of breath and can lead to disability and death.

The regulation, first proposed in 2010 and announced last month, is aimed at reducing black lung disease. It represents the broadest changes to coal dust regulations since the 1969 Coal Mine Health and Safety Act.

The regulation lowers the overall dust standard from 2.0 to 1.5 milligrams per cubic meter of air. For certain mines and miners with black lung disease, the standard is cut in half, from 1.0 to 0.5. The rule also increases the frequency of dust sampling, and requires coal operators to take immediate action when dust levels are high.

Murray Energy’s lawsuit argues that the new 1.5 milligram standard is virtually unachievable with current technology and will cost the industry billions of dollars in unnecessary work stoppages.

The Labor Department has estimated the cost to the coal industry will be roughly $61 million in the first year and then $30 million on an annual basis. It expects benefi ts from lower medical bills to be $36.9 million a year.

The department in 2010 called for cutting the standard to 1 milligram per cubic meter, a level recommended by the National Institute for Occupational Safety and Health. But labor officials revised the proposal to 1.5 milligrams after taking in public comments, which included objections from coal companies and congressional Republicans about potential cost.

The new regulation, published May 1 in the Federal Register, takes effect Aug. 1. It will be phased in over two years.

The NMA said the Obama administration did not consider other less burdensome ways to reduce exposure to coal dust, such as rotating miners and using proven personal protection technologies.

Richard Lazarus, a Harvard environmental law professor, said courts generally give federal agencies wide discretion in setting rules but that the outcome of the case will depend on the strength of the scientific record the Labor Department used to justify the rule.

“One should be able both to recognize the enormous benefits coal has provided the nation over the past 100- plus years without ignoring the no less compelling need to address the significant adverse effects of its use,” he said.

— Compiled from staff, AP reports

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