Breaking news: MSHA tightens rock-dusting rule

September 21, 2010 by Ken Ward Jr.

President Barack Obama looks at a document spread across his desk during a meeting on mine safety with, from left, U.S. Mine Safety and Health Administrator Kevin Stricklin, Assistant Secretary of Labor for Mine Safety and Health Joe Main, Deputy Mine Safety and Health Administrator Greg Wagner, and Labor Secretary Hilda L. Solis in the Oval Office April 15, 2010. (Official White House Photo by Pete Souza)

The U.S. Department of Labor just announced — confirming a widespread rumor – that its Mine Safety and Health Administration was issuing an “Emergency Temporary Standard” to tighten the requirements for controlling the buildup of explosive dust in underground coal mines.

In a news release, Labor Secretary Hilda Solis said:

Coal dust can cause explosions, and explosions kill miners. Inadequate rock dusting can dramatically increase the potential for a coal mine explosion. Compliance with the new standard will strengthen the protection for miners by minimizing the potential for such an explosion and, ultimately, will save lives.

The announcement comes on the heels of MSHA releasing data that shows widespread rock-dusting violations at Massey Energy’s Upper Big Branch Mine, where 29 workers died in a massive explosion on April 5.

MSHA explained the new standard this way:

The existing MSHA standard requires mine operators to maintain at least 80 percent total incombustible content of combined dusts in return air courses and at least 65 percent TIC in all other areas. It also requires that the percent TIC of combined dust in all areas where methane is present in any ventilating current be increased. The 80 percent TIC must be increased by 0.4 percent for each 0.1 percent of methane in return air courses, and the 65 percent TIC must be increased by one percent for each 0.1 percent of methane present in all other areas.

The ETS revises the existing standard by requiring mine operators to increase the total incombustible content of the combined coal dust, rock dust and other dust from 65 to 80 percent in all accessible areas of underground bituminous mines, and an additional 0.4 percent for each 0.1 percent of methane where methane is present in any ventilating current.

Joe Main, assistant labor secretary for MSHA, said:

Explosions caused by coal dust are particularly violent and deadly. When the NIOSH report was released in May 2010 containing new scientific evidence that called for a higher standard, MSHA moved quickly to get this new standard in place. We also revised our guidance on rock dusting to ensure that mine operators are taking the steps necessary to provide for the safety of everyone working in their mines.

Not mentioned by Main or Solis, though, is the fact — reported by the Gazette back in April — that NIOSH researchers have been calling on MSHA to tighten the rock-dusting standard since at least 2006.  Also not mentioned is a recommendation made by the Government Accountability Office way back in 2003 that MSHA should also provide its inspectors and the industry with rules clarifying what constitutes a violation regarding the levels of “float coal dust” in underground mines.

Under federal law, MSHA has limited authority to put emergency health and safety standards in place, as the agency explains:

Emergency Temporary Standards take effect immediately when evidence is presented that workers are in grave danger. They remain in effect until a standard is promulgated through the regular rulemaking process.

MSHA says the standard is effective immediately, but apparently copies of it aren’t yet being made available for the public or the industry:

The ETS, effective immediately, applies only to underground bituminous coal mines and can be viewed on Sept. 23 in the “special filings” section of the Federal Register’s website at Emergency Temporary Standards take effect immediately when evidence is presented that workers are in grave danger. They remain in effect until a standard is promulgated through the regular rulemaking process.

UPDATED: I’ve posted a copy of the MSHA Emergency Temporary Standard here.

The agency added:

Although the ETS is effective on Sept. 23, mine operators will have additional time for compliance in order to purchase more rock dust-related materials and equipment. Mine operators must comply with the ETS for newly mined areas by Oct. 7, 2010, and all other areas of the mine by Nov. 22, 2010. To meet these compliance dates, MSHA encourages mine operators to immediately begin rock dusting all other areas, starting with those that pose the greatest risk to miners: for example, areas near the active faces and areas that contain possible ignition sources, such as conveyer belt drives and belt entries.

Joe Main said:

We know that it will take mine operators a little bit of time to bring their mines into compliance with the new standard. But coal dust explosions are serious, and we expect mine operators to act quickly to reduce the threat to those mining coal underground.

12 Responses to “Breaking news: MSHA tightens rock-dusting rule”

  1. Vernon says:

    If Rockefeller and the coal industry approach these rules the same way they’ve approached EPA water quality regulation or CO2 regulation, they’ll say that MSHA needs to be reined in, that they’re trying to put the industry out of business, and that Congress (or better yet, states, as in “states’ rights”) should be the ones making these rules, not the regulatory agency.

  2. Jason Robinson says:

    Right Vernon, expect them to challenge the rock-dusting rule in the same way that they are challenging the EPA regulations, namely that interim regulations can’t be used until they have cleared the APA and NEPA. I doubt it will hold water, otherwise no regulations would ever do anything. Of course, this may be the point!

  3. Ernie says:

    The 80% rule has been in effect by State Law for over 50 years. The Legislature and Mines Director have not strictly enforced this portion by providing the means to test the mine dust.

  4. Ken Ward Jr. says:


    Actually, MSHA has a different authority than EPA … MSHA can enact “emergency temporary standards” that can take effect without public comment if it deems miners are in “grave danger” … ETSs must be replaced by a final rule — one subject to public review and comment — within nine months.

    See Section 104(b) of the 1977 Mine Act:


  5. Ken Ward Jr. says:

    I don’t believe that’s correct. The state’s standards were the same as MSHA’s until Gov. Manchin’s executive order after the Upper Big Branch Disaster,


  6. rhmooney3 says:

    Such nice words that are so subjective to try to enforce: “…from 65 to 80 percent in all accessible areas of underground bituminous mines, and an additional 0.4 percent for each 0.1 percent of methane where methane is present in any ventilating current.”

    Trying to document such violations would be comical.

  7. MGP says:

    It’s not subjective, at all. When the inspectors take the sample, they also measure the amount of methane in the atmosphere at the sample location. The dust sample is sent to the Mt. Hope laboratory and analyzed. After the test is completed, MSHA calculates the compliance percentage, based on the amount of methane detected by the inspector. It is very objective, and the inspectors (and the Mt. Hope lab) are very professional.

  8. Walnutcove says:

    Good comment RHMooney3. My guess is they will enforce the 80%, but no inspector has the time to test and document that 0.4% for each 0.1% of methane. Most inspectors hardly have time for a rock dust survey, much less all those other calculations. MSHA is going to need to employee two or three additional inspectors per mine to test for that requirement.

  9. rhmooney3 says:

    Not to worry, inspectors know how to make their “numbers” by doing mindless-boxchecking.

    If “the answer,” is inpecting more and differently would have been shown by differences at various mines and in the MSHA districts.

  10. Monty says:

    The sad thing in all of this is – look at Ken’s story. Other federal agencies were saying as long as seven years ago that there was a problem … it’s like watching an endless tennis match that no one really wants to win.

    Is there a way that the regulatory agencies can be held accountable when they fail to act on the recommendations of other agencies, and people ultimately die as a result? Or does the whole issue of soverign immunity rear its ugly head again?

  11. Ellen says:

    A note that the National Mining Assn. does not oppose the new standard, and the majority of industry knew it the new rock dusting standards were coming.

  12. Ernie says:

    A similiar ‘executive order’ went out after the Ferrell Mine disaster in the 70’s. Eight years later the ‘obsolete’ apparatus was sent to surplus property. In government, “What has been, will be again.” is a truism of sorts.

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