News From USW: Court Ruling Protects Mine Workers against Diesel Pollution.

PITTSBURGH -- News From USW: An appeals court has ruled that standards set by the U.S. Mine Safety and Health Administration for reducing diesel particulate pollution were reasonable in a case that the United Steelworkers joined to protect its mineworker members.

A three-judge panel from the U.S. Court of Appeals for the District of Columbia rejected every argument against the pollution standards made by the National Mine Association, the National Stone, Sand & Gravel Association and several mine operators.

"It's a hands down victory for the safety of our members and thousands of other miners," said Michael Wright, USW Director of Health, Safety and Environment. "This decision was a rebuff of the mining companies and the mining associations," he added.

The regulations will limit miners' exposure to the tiny particles in the diesel fuel emissions from trucks and heavy equipment that operate underground in metal mines, such as those for gold, and non-metal mines, such as those for limestone. The rules do not affect coal mines, which are subject to a different regulation. The USW represents more metal and non-metal miners in North America than any other union.

MSHA issued the standards because the tiny particles have been linked to lung cancer, respiratory problems and eye irritation.

The court decision, written by Judge David B. Sentelle, and joined by Chief Judge Douglas H. Ginsburg and Senior Judge Harry T. Edwards, affects 16,000 workers at 256 mines across the country. Before the regulations took effect on an interim basis, miners toiled in conditions that Wright said were "like working inside the tailpipe of a city bus."

The mine operators and industry groups filed suit to prevent implementation of the regulations, contending MSHA did not have sufficient evidence that the tiny particles endangered workers' health, that MSHA shouldn't have used a substitute substance to measure the particles and that it simply was infeasible for mines to meet the MSHA limit deadlines.

The USW filed a brief seeking enforcement of the regulations, which put the union in the unusual position of supporting a Bush Administration agency, Wright noted.

The court found that all of the mine industry arguments were without merit, which means the regulations will take effect over the next 15 months.

MSHA proposed the first set of rules on Jan. 19, 2001 after conducting a risk assessment that determined miners were exposed to very high levels of diesel particles that jeopardized their health.

Because diesel exhaust contains many different substances, MSHA based its limitation on a measure of carbon. The court said that was reasonable because carbon accounts for the bulk of the tiny particles.

The first set of regulations limited carbon concentrations and were to take full effect by January of 2006. MSHA offered numerous suggestions to mine operators for curtailing the particles, including exhaust filters, improved ventilation systems, low-emission engines and low sulfur fuels.

MSHA changed the rules several times over the next five years, trying to appease industry representatives who were unhappy with the carbon measure. Finally, in May 2006, MSHA proposed that mines reduce carbon exposure over time until a final standard was met in May 2008. In addition, MSHA gave companies a break, saying they could get an extra year to comply. And, it said, if mines found it impossible to limit particulates, they could give workers respirators.

Despite all of that, mining companies and industry groups then filed suit calling the rules capricious. The court disagreed.

It said that although the carbon measure wasn't perfect, it didn't need to be. It was only necessary that it be realistic, and it was. It said the science MSHA used to determine that the particulates were dangerous was sound. And it said the mine operators' contention that they just couldn't comply on time was unreasonable because MSHA had offered the extra year as well as the respirator solution.

Mine operators also objected to MSHA requiring them to give physicals to workers to see if they could tolerate respirators, which sometimes cause excessive stress. And they complained that MSHA required them to transfer workers when a doctor determined a respirator would be hazardous to their health.

As with everything else, however, the court ruled against the operators.

The industry may seek another hearing of the case before the same panel or could ask the U.S. Supreme Court to take the case.