Michael Peelish, Esq.
Inspector General - MSHA Falling Short on Protecting Miners from Silica Exposure
According to a new report issued on November 12, 2020 from the Department of Labor’s Office of the Inspector General, as the saying goes, MSHA is two decades late and without teeth to issue fines when companies violate air quality standards such as silica dust in the coal industry. Essentially, the report points out that coal mine operators do not continuously sample for silica dust and thus there could be significant periods of time that miners could be overexposed to silica dust. Whether it has been NPR reporting on the increase of silicosis in the coal industry or Congress holding oversight hearings or other health and labor organizations raising alarm about this horrible disease, the presence of silicosis in miners and its cause has been the worst kept secret ever. However, to the benefit of MSHA, the coal dust standard was reduced in 2014 which considers the presence of silica and which lowered the incidences of silica overexposure. With OSHA having issued its respirable crystalline silica standard in 2016, MSHA is clearly on the spot to do something. MSHA has been promising a new silica standard for some time now (at least 2014), but it has never made it to the proposed rule stage.
What happens now is that all members of the mining industry will be impacted through regulatory actions because the data from the IG report highlights an issue that affects coal and metal/nonmetal mine/plant operations. In the various meetings with industry stakeholders, MSHA has given indication on key items of any rule such as (i) a lower limit will be proposed in all mining sectors, (ii) the monitoring frequency will increase, (iii) the use of the proven process of applying engineering controls and administrative controls to control exposure, and (iv) the use of respiratory protection for compliance purposes. Although, MSHA’s response to the IG report did not commit to specific language that might be included in any proposed silica dust rule, MSHA has given indications of its thinking which industry should hope is memorialized in a proposed rule soon. While administrative maneuverings can derail an agency action, it is important to have on the record what appears to be a reasonable and proven approach to controlling silica dust exposure and thus eradicating silicosis from miners.
This IG report is a stark reminder of what the mining industry must do to protect its most precious resource – the miner. We must never forget what that means.