For A Host Of Different Reasons, It’s Not, But That Doesn’t Mean They Won’t Put It Out.
By Brian Hendrix
Any day now, MSHA will release its new proposed respirable silica rule. If the proposed rule makes it through the rulemaking gauntlet, is finalized and survives a legal challenge(s), MSHA’s approach to silica enforcement will change.
It will almost certainly collect more samples and expect its laboratories to accurately and reliably analyze those samples to enforce a much lower exposure limit. That’s difficult at 50 μg/m3, and it’s even more so at 25 μg/m3. Is MSHA up to the task? Is it prepared? Is it spending the time, money and effort to acquire all the necessary equipment, to properly train the people it has and hire the people it’ll need?
For a host of different reasons, I’m confident that it’s not.
First Things First
I know that MSHA hasn’t always provided its laboratories with what they need. The clearest example of this is described, in detail, in ASARCO Inc. v. Secretary of Labor, 19 FMHRC 1097 (1997) (ALJ). There, the mine operator contested a silica citation to challenge MSHA’s policy of relying on the result of a single shift sample for enforcement purposes. Any good industrial hygienist will tell you that proper exposure assessment requires more than the result of a single shift sample.
Moreover, in coal, MSHA recognized that a single sample of respirable dust will not “accurately represent the atmospheric conditions to which the miner is continuously exposed.” Thus, ASARCO argued that MSHA may not rely on the results of a single sample for enforcement purposes in metal/non-metal mines.
That wasn’t the winning argument, but MSHA lost the case in dramatic fashion. The trial judge found that MSHA’s “standard procedures” for analyzing samples at the laboratory were not standardized with NIOSH-accepted procedures, are not replicable by the public (mining industry) and seem to vary from day to day and sample to sample. Moreover, in several important respects, the MSHA lab did not even comply with its own internal “standard” procedures.
Burden of Proof
As a result, he concluded that MSHA failed to meet its burden of proof to establish the reliability of its analysis of the particular sample at issue in this case must result in the instant citation being vacated. MSHA’s failure to account for the actual variability experienced at its Denver lab using a hybrid standard/non-standard procedure loosely based on the NIOSH Method makes the result unreliable.
I have no confidence in its accuracy. What I would suggest as a “fix” is that MSHA develop a written laboratory procedure for the XRD analysis of silica incorporating the essential aspects of the NIOSH 7500 Method.
And then, most importantly, once that procedure is in place, follow it, so that all parties interested in the resultant analysis have some point of reference to begin a critical evaluation of that result, should they choose to do so. As it is, the analytical procedure appears so haphazard that no one can be sure of what procedure they are actually following on any particular sample on any given day.
The trial judge did not just vacate the citation. He also issued a declaration that the “MSHA Denver laboratory cannot reliably report the amount of silica present on any single sample that it analyses under its current analysis procedures.” He shut down MSHA’s lab in Denver. It was a remarkable case.
I am well aware of the time that’s passed since the ASARCO decision, and the particular conditions and practices described in that decision have since been addressed. However, it serves as a reminder or warning of what can happen when MSHA doesn’t provide its laboratories with the support and oversight that they need to carry out their mission. I would not be surprised to find that MSHA has forgotten the lesson of that case.
In its FY 2023 Congressional Budget Justification, MSHA did request an additional $2.3 million for its Technical Support budget for an “increase in laboratory capacities to allow MSHA to handle an increase in regulatory and enforcement activities due to the new respirable silica regulatory standard and samples collected as result of increased mining . . .” Unfortunately, that’s a fraction of what it would need to do the job right, and it’s only for laboratory space and equipment, not personnel and training.
Another Reason
Another reason I’m confident that MSHA isn’t prepared to enforce a new silica rule is that MSHA has major problems with its personnel and training. Across the board, MSHA is struggling mightily to recruit and hire qualified, experienced personnel, and I haven’t seen any evidence that it’s attracting nearly enough candidates with an interest, experience or education in industrial hygiene and occupational health. Moreover, the quality and quantity of the training that MSHA provides to its own personnel is poor, at best, and it’s not getting any better.
Additionally, MSHA has always been short on people who understand occupational health and industrial hygiene. How many degreed industrial hygienists does MSHA employ? How many Certified Industrial Hygienists (CIH)? A few?
You certainly don’t need to be a CIH to collect a dust sample properly, but you’d expect an agency of MSHA’s size and reach to have at least one in each District to train MSHA personnel there, to answer their questions, to support or assist with enforcement and to even engage in outreach and education efforts.
While MSHA’s not prepared to enforce a new silica rule, MSHA certainly wants to get the proposed rule out ASAP. In government time, “ASAP” or “any day now” could mean next week, next month, next year or never. The expectation is that we’ll see the proposed rule this year.
That’s not exactly the beginning of the process, but it’s nowhere near the end of it. MSHA will have time to prepare for enforcement. Whether MSHA uses that time wisely remains to be seen.
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].