Agency Leadership to Focus on Protecting Miners From Dust Exposure.
By Brian Hendrix
According to its leadership, MSHA is working to “put the ‘H’ back in ‘MSHA.’” Testifying in Congress in June, Assistant Secretary Zatezalo stated that he is “paying close attention to the ‘H’ in MSHA: miners’ health.” He emphasized that MSHA will “aggressively enforce existing standards to ensure that operators protect miners from exposure to respirable dust and quartz.”
Black lung is the main reason that the Assistant Secretary assured Congress this summer that he’s “paying close attention to the ‘H’ in MSHA.” Thankfully, black lung is not a problem in the aggregates industry, and the health of the nation’s miners has never been better. Compliance with MSHA’s health standards is the norm, not the exception. Indeed, the Assistant Secretary has explained that “over 16% of quartz samples exceeded the standard in 2008, by 2018 only 1.2% exceeded the standard – the lowest rate since MSHA began keeping records.”
Nevertheless, MSHA’s renewed focus on the “H” isn’t limited to coal. Assistant Secretary Zatezalo told Congress that “[s]amples that exceed the standard are reviewed in senior staff meetings … To compel compliance, we have not hesitated to issue 104(b) withdrawal orders.” What this means – and how we’ve seen this play out – is that Arlington has been more involved in routine enforcement decisions involving dust (nuisance dust, silica, etc.) exposures. If an inspector collects a sample and it comes back high, Arlington – MSHA “senior staff” – will be watching and will get involved in the decision-making if the next round of samples is not to their liking. Arlington – not the inspector on the ground – may well decide whether the time set for abatement is reasonable or whether an extension is warranted.
Additionally, senior staff at MSHA seem intent on interpreting (and enforcing) 30 C.F.R. § 56/57.5002 to require mine operators to regularly collect air samples. In its entirety, MSHA’s Exposure Monitoring standard provides that “Dust, gas, mist, and fume surveys shall be conducted as frequently as necessary to determine the adequacy of control measures.” In short, MSHA’s senior staff seem to interpret the reference to “surveys” in 56/57.5002 to mean “samples.” If the results from a sample collected by an inspector in an area exceed the exposure limit and the operator hasn’t collected samples in that area for some time, the operator can expect to be cited for a 56/57.5002 violation.
This approach to abatement and the issuance of 104(b) orders isn’t consistent with MSHA’s own policies. Similarly, MSHA’s own policy make it clear that 56/57.5002 does not require a mine operator to collect air samples, sample on a particular schedule, etc.
First, MSHA’s “Citation and Order Writing Handbook for Coal Mines and Metal/Non-Metal Mines” describes MSHA’s policy on the abatement of Airborne Contaminant Violations:
A. If appropriate personal protection is being worn and progress has not been made towards compliance, resampling must be conducted to determine if an overexposure still exists before issuing a Section 104(b) order of withdrawal.
B. If the due date and time has passed, a Section 104(b) order of withdrawal must be issued if the operator or contractor has failed to provide appropriate respiratory protection, if the miner was not wearing an appropriate respirator, or if the operator has not implemented an appropriate respiratory protection program. …
A 104(b) order must also be issued if the operator or contractor has failed to implement feasible engineering or administrative controls within the established abatement time and further extension of time is not warranted. …
In other words, MSHA should not issue a 104(b) order if: (1) the operator has implemented a respiratory protection program; (2) respirators have been provided; and (3) the operator is working to abate the alleged violation. MSHA should only issue a 104(b) withdrawal order if respiratory protection is not being worn and “progress has not been made towards compliance” and the results of a second round of sampling exceed the exposure limit and the abatement deadline has passed.
Similarly, MSHA’s own guidance on 30 C.F.R. § 56/57.5002 makes it clear that the standard requires operators to survey, not sample. It does not require an operator to collect samples on any particular schedule:
The term “survey” denotes any information collection method that:
- Yields information as to miners’ exposures to harmful airborne contaminants, or
- Yields information as to the effectiveness of controls in reducing exposures to harmful airborne contaminants. Sections 56/57.5002 do not specify the type of surveys that may be conducted.
Surveys may be quantitative or qualitative. Quantitative surveys include exposure monitoring/sampling or wipe sampling as they provide a direct measure of potential exposure … Qualitative surveys can include vehicle maintenance, ventilation system maintenance, dust control system maintenance and walk-through inspections. Other surveys can include miner input, results from medical surveillance, or information obtained from injury/illness/accident reports. …
Sampling may be an element – even a critical element – of that characterization, but 56/57.5002 does not require operators to collect or rely on samples, to sample or resample with any particular frequency or on a certain schedule, etc.
The question to ask is whether you have characterized the potential exposures and evaluated the control measures in a particular area consistent with standard industrial hygiene methods and practices. If you have, MSHA should not cite you for a violation of 56/57.5002 if a sampling result exceeds the exposure limit. Moreover, MSHA’s own long-standing policy recognizes that it makes no sense to issue a 104(b) withdrawal order to an operator that has implemented a respiratory protection program, equipped miners in the affected area with proper respiratory protection and is clearly working to abate the alleged violation.
MSHA should stick to that policy.
Brian Hendrix, a member of Husch Blackwell’s Energy & Natural Resources group, advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He has extensive experience with federal and state agencies and has represented numerous clients in manufacturing, natural resource production and service-related industries. [email protected], 202-378-2417.