MSHA Moves Ahead On Silica RFI But Leaves All Options Open

Just before the Labor Day holiday, the Mine Safety and Health Administration published a long-expected silica request for information (RFI) on possible further regulatory action to address silica (most often found as quartz) in workplaces. From past statements by current MSHA officials and the text of the RFI, it remains unclear how fast or how far MSHA may go in further the regulating exposures to one of the most commonly-found elements on Earth.

Silica particles that are small enough to be respirable (inhaled) and deposited in the lungs can lead to various lung diseases. The extent to which quartz exists in mines can vary with the type of rock mined. The extent to which miners are exposed to respirable-sized particles will also depend on their exposure to activities that release silica, including drilling, blasting, or crushing quartz.

While MSHA has sent mixed signals about what it might do on silica, it has also faced pressure to act. On the one hand, the current leadership at MSHA has emphasized that it may get bolder and wants to “put the H back in MSHA” (for health). On the other hand, there have been statements suggesting that MSHA may consider current silica exposure limits sufficient. However, ever since its sister agency, OSHA, significantly reduced silica exposure limits in 2016, MSHA has said it would also look at the issue. In addition, labor unions and members of Congress have called on MSHA to act in response to a spike in coal mine black lung cases in certain geographic areas.

The new RFI does little to reveal MSHA’s intentions. It asks for stakeholder information about all possible avenues which the agency might pursue in adding to or changing the agency’s approach to silica — everything from the feasibility of new exposure limits and control technologies to possible approaches focused on compliance assistance. In this way, the RFI basically leaves open every possibility, from a new rule that follows OSHA’s lead to a much different approach.

What will MSHA have to think about?

Even if MSHA does want to proceed with new regulatory requirements, here are several issues it will have to contend with:

How fast can it move?

It is unclear how quickly MSHA could move on a new rule. In addition to White House policies limiting new regulatory action, there is little time to go through the lengthy notice-and-comment rulemaking process before the current administration’s term is up. OSHA’s rule only took effect after several years of rulemaking, including 1,700+ comments submitted, days of public hearings, and a court challenge.

How to build the case?

If, after the RFI, MSHA ultimately does proceed with a proposed silica rule, it will be interesting to see how much it relies on OSHA’s prior work as opposed to building its own case in support of whatever measures it proposes. The 2016 OSHA rule aggressively cut the prior exposure limit in half – from 100 micrograms to 50 – and created significant new compliance obligations. The process was so involved in part because stakeholders raised a number concerns with the direction of the rule. There were, for example, questions about whether sampling devices and laboratories could even measure particle concentrations as small as those regulated.

Whether to revisit the role of PAPRs?

If MSHA moves ahead with a new rule, there will also be an opportunity to revisit issues such as whether powered air purifying respirators (PAPRs) can qualify as engineering controls. Like OSHA, the Mine Safety and Health Administration follows the “hierarchy of controls.” According to this principle, regulations must first require eliminating, substituting, or engineering away any hazard out of the work atmosphere before they can allow companies to rely on administrative controls or personal protective equipment to protect workers.

The theory is that controls which remove the hazard from the entire workplace are more protective and reliable, including because they do not depend on individual workers to follow safety rules. In the case of respiratory protection, in particular, workers sometimes complain that traditional respirators are uncomfortable. However, PAPRs are different. Supporters of the technology would argue that they are effectively mini-engineering controls. They are often loose-fitting half-or full-face face shields, which blow cool, clean air to keep contaminants away from breathing zones. As a result, proponents argue, they create a miniature work environment around each worker. They do not present the typical criticisms that workers raise about discomfort with traditional respirators.

As MSHA notes in the RFI, there have been proposals and debates in the past about whether PAPRs could supplement or even be considered engineering controls. The RFI notes that the Mine Act requires the hierarchy of controls for respiratory protection (citing Section 202, which applies to underground coal mines). When MSHA finalized its 2014 coal dust rule, it did not allow PAPRs as a supplement to achieve compliance. However, the Mine Act language does not appear to apply to non-coal mines, and in any case, PAPRs did not exist when the Mine Act was written. It is an open question whether they should be considered “respirators” under the Act.

The PAPR is just one issue that is sure to arise again. It also may present an opportunity. MSHA might be able to get more buy-in if it recognizes advanced PAPRs as an engineering control.

What does the data say?

It will be interesting to see what the illness and injury data say about silica exposures and illnesses in coal and metal/non-metal mining, respectively. When OSHA proposed its 2016 rule, silicosis had declined by 93% under the prior exposure limit, and critics argued that over 20% of samples were still not complying with the prior limit. In other words, they argued, the problem of remaining cases of silicosis was not because the limit was too high but because it was not being effectively enforced. Will the data within mining look similar?

Can we keep coal and metal/non-metal separate? 

One thing the RFI does suggest is that MSHA may see this as an opportunity to further its Blurring the Lines initiative. The RFI seems to cover both coal and metal/non-metal. However, these two different environments present very different atmospheres, challenges, and exposures to airborne particles. As a result, silica regulation is a poor candidate for MSHA to further blur the lines.

This concern is underscored by MSHA citing two factors in the RFI that are coal-specific, suggesting that its direction could be motivated by coal-driven issues. These include recent spikes and hot spots for black lung among coal miners and the Mine Act sections limiting the use of respiratory protection for compliance in underground coal mines. While there seems to be widespread agreement about the spikes in black lung, engaging in a possible rulemaking that lumps together coal and metal/non-metal as a response may generate significant opposition from non-coal stakeholders.

What MSHA wants to know

MSHA’s RFI says that it is looking broadly for information relevant to possibly lowering the permissible exposure limit (PEL), new protective technologies, and the value of providing companies with more compliance assistance. In particular, it has just four specific information requests, seeking data and information on:

  1. New or developing technologies and best practices to protect workers.
  2. How engineering controls, administrative controls, and personal protective equipment can be used to protect miners.
  3. Additional feasible dust-control methods to be used during “high-silica cutting situations,” such as on development sections, shaft and slope work, and cutting overcasts.
  4. Any thing else that may be useful to MSHA in evaluating miners’ exposures to quartz.

What should you do?

Nothing specific has changed – or even been proposed – yet. For now, MSHA is just collecting information. However, the information it collects will shape what comes next.

For companies in the mining industry, it’s already important to understand where your dust exposures stand in comparison with current MSHA regulations. Now, it may be helpful to also understand where you stand compared with OSHA’s 2016 rule. Could you comply with the 50 microgram limit and 25 microgram action level? Would engineering controls to limit, suppress, and collect dust be feasible in your workplaces? Would they be effective in complying with such limits?

If the future direction of silica regulation could impact your operations significantly, you should make your voice heard to share your experiences and information. Members of Husch Blackwell’s health and safety team were intimately involved in the OSHA silica rulemaking on behalf of major industry clients. We can help you put together effective comments and submissions in response to the RFI so that MSHA has the full picture about how a new rule would affect you. In addition, you can weigh in as part of a group of like-minded companies through our Mining Coalition (contact us for more information).

Comments are due October 28th.

Written by: Husch Blackwell LLP