Exploring The Depths Of Bad Rulemaking.
By Brian Hendrix
On April 18, MSHA published its final rule on respirable crystalline silica (Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection). Two days before the publication, the Acting Secretary of Labor appeared with the Assistant Secretary for Mine Safety and Health and union leaders to announce the release of the final rule.
Speaking at the event, the Acting Secretary declared that “[I]t is unconscionable that our nation’s miners have worked without adequate protection from silica dust despite it being a known health hazard for decades.” She went on to explain that is why “President Biden put this rule on his regulatory agenda from day one of his administration.”
As she put it, “[t]his is what it looks like to have the most pro-worker, pro-union President in history.” President Biden was campaigning elsewhere in Pennsylvania that day, but he did not make an appearance at the event.
The final rule (30 C.F.R. Part 60):
- Reduces the permissible exposure limit (PEL) for respirable crystalline silica from 100 to 50 µg/m3 over a full-shift exposure (8-hour time-weighted average) for all miners.
- Sets an action level of 25 µg/m³ and requires mine operators to conduct periodic sampling when miner exposures are at or above the action level but at or below the PEL.
- Requires mine operators to install, use, and maintain engineering controls as the primary means of control.
- Requires mine operators to assess (sample) the exposure of each miner “who is or may reasonably be expected to be exposed to respirable crystalline silica.”
- Bars the use of administrative controls (e.g., worker rotation) for compliance purposes.
- Bars the use of respirators for compliance purposes.
- Permits the temporary use of respirators at metal/nonmetal mines when miners must work in concentrations above the PEL while engineering controls are being developed.
- Requires mine operators to develop and implement a written respiratory protection program consistent with the requirements of ASTM F3387-19.
- Requires mine operators to take immediate action to address overexposures.
- Bars the use of administrative controls (e.g., worker rotation) for compliance purposes.
- Bars the use of respirators for compliance purposes.
- Permits the temporary use of respirators at metal/nonmetal mines when miners must work in concentrations above the PEL while engineering controls are being developed.
Mine operators in metal/non-metal have 24 months after the publication date to comply. Coal mine operators must comply with the new rule 12 months after the publication date.
Bad
If you are familiar with MSHA and the proposed version of this rule and expected the final rule to be bad, you will be sorely disappointed. It’s not merely bad. It is imaginatively, creatively bad.
The final rule imposes tremendous, unnecessary burdens on mine operators and miners and will produce years of contentious enforcement disputes and litigation. Compliance with certain requirements of the rule for many operators will simply not be technologically or economically feasible. And, I am certain that MSHA is not prepared to enforce the rule.
Exposure
In many ways, the rule is contrary to sound industrial hygiene practice. Perhaps the most glaring example of this is MSHA’s decision to “eliminate the option of using objective data or historical sample data (mine operator and MSHA sample data from the prior 12 months)” to comply with the rule.
Mine operators have long characterized the potential exposures at their mines based on quantitative and qualitative data and information, including sampling results. Most maintain comprehensive exposure monitoring and control plans and programs.
In other words, most possess a comprehensive understanding of the potential health hazards at their mines and how best to control and limit exposure to those hazards.
Nevertheless, the final rule requires mine operators to start from scratch. MSHA ditched risk-based exposure monitoring that consistent with standard industrial hygiene practice in favor of a “sample everyone again, often and everywhere, regardless of risk” approach.
This is counterproductive and completely contrary to standard industrial hygiene practice, as well as NIOSH’s, OSHA’s and (until now) MSHA’s guidelines and recommendations.
Dismissed
MSHA knows or should know all of this. Stakeholders explained it all to MSHA in extensive, detailed comments and in testimony at public hearings on the rule. No matter. MSHA largely dismissed stakeholders’ detailed comments on the proposed rule.
MSHA used more than 200,000 words (the equivalent of three novels) and 268 pages of the Federal Register to dismiss nearly all of the stakeholders’ concerns about the technological and economic feasibility of compliance.
If MSHA heard stakeholders, it certainly did not listen.
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].