MSHA Must Continue To Recognize Engineering Controls As The Primary Means To Eliminate Respirable Dust Within The Mine Atmosphere And Achieve Compliance.
By Brian Hendrix
Just a few days after the midterm elections in 2022, Sen. Joe Manchin and four of his colleagues in the Senate sent a letter to MSHA Assistant Secretary Chris Williamson to “formally request additional information on the forthcoming rule to establish an updated respirable crystalline silica standard.”
Sen. Manchin noted that in September of 2021, MSHA announced that it would publish its new respirable crystalline silica standard in January, and “it has been over a year since that correspondence and still no new proposed silica standard has been promulgated.” Sen. Manchin had three questions for the Assistant Secretary:
1. What is the current status of a new silica standard and what, if any, progress has been made on it over the past year?
2. What, if any, barriers exist to releasing a timely proposal?
3. What is your current anticipated timeline for the promulgation of a new silica standard?
Sen. Manchin almost certainly was aware that MSHA had a final or near-final draft of a proposed rule ready to go out the door many months ago, before the Senate even confirmed Williamson. It is also safe to assume that that draft proposal covered coal and metal/non-metal mines and included a new exposure limit of 50 mg/m³. MSHA almost certainly could have published that proposed rule in early 2022, before or shortly after Williamson started at the agency. It didn’t. It still hasn’t.
MSHA has been working on a new silica rule for many years. After OSHA finalized its silica rule in 2016, the then-MSHA Assistant Secretary Joe Main said that MSHA would use OSHA’s work on its rule to support the proposed rule MSHA was drafting. In the next administration and under new leadership, MSHA’s work continued.
MSHA published a Request for Information on silica in 2019, accepted comments and testimony and assured stakeholders that it would soon publish a proposed rule. What this almost certainly means is that MSHA is making significant changes to the rule that it drafted and intended to publish in early January 2022.
I do not have any inside information about the changes MSHA is making. However, I do know that, in addition to Sen. Manchin’s support, the Assistant Secretary enjoys the support of the United Mine Workers of America (UMWA). UMWA’s president, Cecil Roberts, has referred to Williamson (who has no mining experience) as “the most knowledgeable expert on mine safety and health in Washington today.” As such, I expect Williamson to propose a rule that the UMWA will support.
What Would UMWA Support?
What does it want? For an answer to that question, we can look to the UMWA’s testy response to MSHA’s 2019 Request for Information (RFI). The UMWA started by expressing its “frustration and displeasure with the Agency for issuing an RFI rather than take concrete action . . . MSHA has long known what measures it must take in order to ensure healthful work environments for the nation’s miners. MSHA has a responsibility to enact those measures. The UMWA must question MSHA’s motives in its decision to shirk that responsibility . . .” In other words, back in 2019, the UMWA was not happy with the agency.
Specifically, the UMWA maintained “that new standard must include language that:
1. Lowers the Personal Exposure Limit (PEL) from 100 µg/m³ . . . to no greater than 50 µg/m³.
2. Requires MSHA to fully commit to developing and deployment a real-time silica monitoring device for use in the mining industry, with the aid of NIOSH and the private sector.
3. Creates a new regulatory standard requiring that the PEL for silica be separate and distinct from the Respirable Dust Standard and enforceable in accordance with all other standards established by the Agency.
4. Requires MSHA to implement a sampling program for silica similar to the current Respirable Dust Sampling Program, including sampling frequency.
5. Requires MSHA to be responsible for conducting all respirable dust sampling used to ensure mine operators are in compliance with all aspects of the silica standard.”
Additionally, the UMWA was and, no doubt, still is, firmly opposed to any proposal that allows for or recognizes the use of personal protective equipment (PPE) – including powered air-purifying respirators (PAPR), as a means of compliance. As the UMWA put it: the assertion by MSHA that “…existing engineering or environmental controls may not be adequate to continuously protect miners’ health in areas where there are high levels of quartz dust” is not an established fact.
Rather, the union believes MSHA is considering using respirators in order to illegally achieve compliance and lessen the regulatory burden on mine operators. Permitting such action would open the door for the agency to promulgate a standard in the future that would reduce or eliminate engineering and environmental as the primary methods of controlling respirable coal mine dust. The UMWA completely and emphatically rejects this attempt to circumvent the intent of Congress and demands that MSHA does so as well.
MSHA must continue to recognize engineering controls as the primary means to eliminate respirable dust within the mine atmosphere and achieve compliance. The UMWA supports the voluntary utilizing personal protective equipment as a supplement to engineering controls. However, the Union deems mandatory use of respirators to be illegal and beyond MSHA’s authority. The use of respirators as a means of complying with the dust standard is contrary to the Mine Act, provides miners with a false sense of protection and is not feasible for all miners.
That’s what the UMWA wants from MSHA. I do not know if the UMWA will get all that it wants, but I doubt that the proposed rule will disappoint the union. MSHA will likely publish the proposed rule in 2023, so we’ll soon find out.
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].