Mining Groups Sue for Judicial Review of MSHA's Asbestos Rule

On April 25, four days shy of the 60-day deadline for filing a legal challenge to MSHA's new health standard reducing the permissible exposure limit for asbestos from 2.0 fibers per cubic meter of air to 0.1 fibers, the 11th Circuit Court of Appeals received two petitions from mining groups requesting judicial review of the rule. One of the petitions, from the Georgia Construction Aggregate Association (GCAA) and the National Stone, Sand & Gravel Association (NSSGA) (downloadable at www.defendingscience.org/upload/NSSGA-Petition-April-2008.pdf), says a review is necessary because, "among other reasons, the methods used to measure asbestos under the Rule may indicate that asbestos is present in a mine when in fact it is not." The other petition, from the National Mining Association, the Industrial Minerals Association-North America Inc., and others, simply notes that the rule in question was published in the Federal Register on Feb. 29 and states that the petitioners "have an interest in the outcome of this case."

While the NMA petition does not elaborate on reasons for the suit, a Feb. 27 letter from mining groups including NMA and others "of allied interests" addressed to Albert Wynn, chairman of the House's Subcommittee on Environment & Hazardous Materials, and John Shadegg, ranking member on the same subcommittee, contained some of the same concerns listed in the petition from GCAA and NSSGA. "We must . . . ensure asbestos is accurately defined so that natural materials, like common rock fragments, are not mistakenly included as asbestos containing products," the letter stated. "Rock fragments have been extensively studied and have not been found in either the scientific literature or regulation to cause asbestos-related disease. Arbitrarily including these rock fragments will have a detrimental impact on each of our industries."

Under MSHA statutes, "any person who may be adversely affected by a [newly promulgated] standard" may file a petition in the U.S. Court of Appeals challenging the "validity of the standard." According to the GCAA and NSSGA petition, "The problems in [MSHA's] Rule can be easily rectified. For example, the possibility that nonasbestiform materials would mistakenly be identified as asbestos would be greatly diminished by adding from the OSHA asbestos rule the sequential tests which are used to identify asbestos and differentiate it from other materials present in mines." The petition also says the rule would be improved by clarifying the text of Section 56.5001 "so that it indicates that it only applies to asbestiform minerals, and so that it allows for use of testing methodologies better than those currently used as they develop." Again this language echoes the industry's Feb. 27 letter to Wynn and Shadegg, which stated: "Our concern relates to naturally occurring asbestos in the natural mixed dust environment which is the very earth on top of igneous and metamorphic rock formations. . . . Soils and minerals must be distinguished from asbestiform minerals based on reliable test protocols used to differentiate them and, if necessary, further scientific analysis is necessary to confirm that which is already known--that no asbestos-like health effects are associated with nonasbestiform materials.

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