MSHA Targets Silica

MSHA’s New Silica Enforcement Initiative: Not Really New, Just More of the Same.

By Brian Hendrix

Once again, silica is at the top of MSHA’s current enforcement and rulemaking agendas. MSHA has long been working on a new silica rule to reduce the current PEL for respirable silica by 50% (or more), but that’s not expected until late summer or early fall. 

On that schedule, a final rule might be published next year. In the meantime, MSHA Assistant Secretary Christopher Williamson wants MSHA to do more. Addressing UMWA’s 56th Constitutional Convention in June, he announced a new Silica Enforcement Initiative aimed at increasing silica related enforcement.” 

MSHA’s Silica Enforcement Initiative has “has four components: inspections, sampling, compliance assistance, and miners’ rights,” but there’s not much to it:

1. Inspections 
Coal and MNM Mines 
MSHA will conduct spot inspections for silica at coal and Metal/Nonmetal (MNM) mines in accordance with section 103(i) of the Mine Act. 

  • At mines with repeated overexposures to silica, mines may be inspected every 15-days at irregular intervals. 
  • MSHA will require for overexposures over 100 micrograms (existing PEL):
    • For MNM mines, abatement within a period of time.
    • For overexposures not abated, MSHA will issue a 104(b) withdrawal order.  
    • For coal mines, MSHA will encourage mine operators to change the dust control and mine ventilation plans and review plans/exposures after changes are made. 

Coal Mines 
Review of Ventilation and Roof Control Plans. 

  • MSHA District Managers will review ventilation and roof control plans for extended cuts (greater than 20 feet). District Managers may require mine operators to specify in these plans: 
    • The number of miners working downwind of the continuous mining machine. 
    • The number of extended cuts miners will work downwind. 
    • MSHA will take additional dust samples for miners who are overexposed. (See sampling.) 
    • MSHA District Managers will review approved plans to determine if the plans are appropriate when MSHA’s samples indicate silica overexposures. 

2. Sampling 
Coal and MNM Mines 
MSHA will collect respirable dust samples from occupations known to have a high-risk of exposures to silica. This will include: 

  • MNM miners involved in overburden removal. 
  • Coal miners involved in the construction of a shaft or slope. 

Coal Mines 
Extended Cuts (Greater than 20 feet) 
For mines with approved extended cut mining, MSHA may collect additional dust samples for: 

  • Miners working downwind of a continuous mining machine. 
  • The number of extended cuts miners will work downwind. 

Developing Crosscuts 
Developing a crosscut is a period in the mining process when miners may be potentially at a significant risk of high exposures. MSHA samples these miners when possible. 

3. Compliance Assistance 

  • MSHA will work with stakeholders including mine operators, industry, and labor. 
  • MSHA will share additional information through stakeholder calls and to MSHA grantees. 
  • All information will be posted on the agency’s website. 
  • MSHA will distribute materials related to this initiative and provide compliance assistance through Educational Field and Small Mine Services staff. 

4. Miners’ Voice 

  • MSHA will reinvigorate efforts to educate miners about their rights to make hazardous condition complaints and their protections against retaliation and discrimination. 
  • MSHA will ensure that miners are aware of their right to: 
    • Accompany an MSHA inspector.
    • Obtain an immediate MSHA inspection if they believe safety or health hazards exists.
    • Identify hazardous conditions and refuse unsafe work without fear of retaliation and discrimination.
    • Additional information will be posted on the MSHA’s website.
    • Compliance assistance materials will be provided through the Educational Field and Small Mine Services staff. 

So, MSHA intends to sample more, enforce more and do more to educate miners about their statutory rights. Also, more compliance assistance. More, not new, different or any more efficient or effective. The Silica Enforcement Initiative isn’t innovative. It is a page taken from a playbook that was written decades ago. It is also more of the same, a continuation of what MSHA has been doing for quite some time. 

According to MSHA, between 2013 and 2018, MSHA’s sampling increased by 335%. In 2018, 98.8% of the samples MSHA collected established compliance with the existing standard. Moreover, the results were, on average, 75% below MSHA’s exposure limit for silica. In other words, 

Nevertheless, MSHA maintains that the mining industry has a serious silica problem. Williamson told the UMWA that “we know from NPR and PBS’s investigative reporting, NIOSH . . . and the works of other health experts that we are in the midst of a surge in pneumoconiosis, including increasing development of more severe forms of disease and occurrences in younger . . . miners. 

MSHA is primarily concerned about silica right now because of the role it may play in what Williamson described as the “surge in pneumoconiosis” or black lung. Black lung is obviously not an issue in aggregates or metal/non-metal mining. MSHA knows all of this, and you can see it in MSHA’s Silica Enforcement Initiative. 

The measures aimed at metal/non-metal are quite general, almost generic. The measures applicable to coal are more specific. Nevertheless, MSHA has no plan to limit its efforts on silica to coal. 

What this means is that aggregates and metal/non-metal mines should expect MSHA to spend even more time on silica. That means MSHA will likely increase the frequency and volume of its sampling and spend more time on compliance issues related to silica. 

On the upside, since MSHA’s Silica Enforcement Initiative is more of the same, most mine operators already know what to expect and how to prepare for it. Broadly speaking, MSHA has always expected mine operators to: (1) have a plan or system for surveying potential exposures to dusts, fumes, gases and mists and determining the adequacy of control measures (engineering, administrative and PPE); (2) prevent miners’ exposure to these hazards; and (3) to protect miners from adverse health effects due to exposures to airborne contaminants. Those expectations have changed. 

Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected].

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