An underground coal miner who works in eastern Kentucky took the next step in his legal battle to force the Secretary of Labor to reduce respirable dust levels in our nation’s coal mines.  It started in March 2008 when Scott Howard of Lechter County, KY filed a lawsuit in federal court (Howard v. Chao) against the Secretary of Labor and the Mine Safety and Health Administration (MSHA) asking the Court to compel the Labor Department to issue a more protective health standard to prevent coal miners from developing black lung.  On Monday, Mr. Howard’s attorneys, Nathan Fetty and Steve Sanders submitted their brief to the U.S. Court of Appeals for the Sixth Circuit, making the case that the Court should schedule oral arguments. 

Sadly, this is not the first time that workers have been compelled to appeal to federal judges to force our worker safety agencies (i.e., OSHA, MSHA) to do their job setting health protective standards.  Thank goodness for public-interest lawyers (like these from the Appalachian Citizen’s Law Center and the Appalchian Center for the Economy & Environment, or from Public Citizen’s Health Research Group) who have taken these cases.  I consider them integral in advancing public health.  

 In this most recent submission to the Court, Mr. Howard’s attorneys argue three main points:

1. The Mine Act imposes a duty on the Secretary to issues standards so that mine workers do not suffer material impairment of health.
2. The plaintiff has a plain right to have the Secretary issue more protective respirable coal dust limits, and there is no other adequate remedy for him to pursue other than mandamus.
3. The mandamus is necessary because of the “Secretary’s intolerable failure to address the harm to miners caused by excessive respirable dust.”

They lay out in painful detail the long, disappointing history of why MSHA’s respirable coal dust standard remains at 2.0 mg/m3, even though in 1995, NIOSH published a criteria document recommending it be reduced below 1.0 mg/m3.  They also use powerful language from previous federal court decisions that had reprimanded OSHA for failing to act to protect workers’ health, phrases like:

• a six-year delay in rulemaking was a ‘very long time’ especially with ‘lives hanging in the balance’
• ‘…we understand, because we have seen it happen time and time again, that action Congress has ordered for the protection of public health all too easily becomes hostage to bureaucratic recalcitrance, factional infighting, and special interest politics.  At some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.’ (Public Citizen v. Brock, 1987)

The Secretary of Labor’s attorney’s were given until mid-December to file their rebuttal.  They asked the Court for an extension; the new date is January 20, 2009. (That date has a nice ring to it, doesn’t it?)

Celeste Monforton, DrPH, MPH is with the Project on Scientific Knowledge and Public Policy at the George Washington University School of Public Health.  She was a special assistant to Asst. Secretary for MSHA Davitt McAteer from 1996-2000, and lived through many of the agency’s efforts during that time to promulgate a more protective and comprehensive respirable coal dust standard.