MSHA has clearly staked out its ground on respirable crystalline silica or RCS with the latest enforcement initiative. With all the recent initiatives (surface haulage, silica, enhanced enforcement), operators are perplexed as to what to expect next from MSHA. Dealing with MSHA is like a roller-coaster for operators because they are continually confused on the “enhanced enforcement subjectiveness” with which MSHA applies its existing standards somehow transformed by using the words “initiative” in its introduction.
Well, the silica enforcement initiative is no different. The last administration for MSHA was focused on silica and its actions did get the operators’ attention. However, it does not appear MSHA was satisfied with that approach and, without a stated justification in fact or data in its press release, MSHA has decided it wants to ramp up the enforcement on silica exposure based on the scriptures contained in the Mine Act.
MSHA’s press release has set forth how MSHA plans on implementing this latest enforcement initiative and operators should take note:
Spot inspections at coal and MNM mines with a history of repeat silica overexposures. (Action: Operators know their history for overexposures so review these and define the corrective actions that were present when sampling revealed a “pass” on the exposure monitoring. Also, take a mental photograph of what the “pass” conditions look like and remind management and the miners that that is what the workplace needs to look like all the time.)
Increased oversight and enforcement for known silica hazards at mines. For MNM where the operator has not timely abated hazards, MSHA will issue a section 104(b) withdrawal order until the overexposure hazard has been abated. For coal, MSHA will encourage operators to make changes to the ventilation and dust control plan which MSHA approves. (Action: For MNM mines that have an outstanding overexposure citation(s), special focus on corrective actions needs to be taken. Operators need to record in the workplace examination (WPE) books the actions taken to fix leaks, accumulations, transfer points, etc., so that they can show MSHA that actions are being taken. The goal is for MSHA to accept these actions and extend time to abate if needed.)
Expanded silica sampling at MNM mines. MSHA’s unspoken metric for identifying mines for enhanced sampling is the respirable silica/quartz content. I have heard that over 30% quartz rings MSHA’s sampling bell. (Action: Operators need to know the respirable quartz content of its samples, because MSHA does. It makes sense that a higher respirable quartz content will make exposure time less before an overexposure occurs.)
MSHA will focus its sampling on tasks that have the highest risk of silica overexposure. For MNM, MSHA will focus on overburden removal, and for coal, MSHA will focus on shaft and slope sinking, extended cuts, and developing crosscuts. (Action: Operators should identify these highest exposed occupations and sample them before MSHA does to know what you have and what corrective actions may be needed before MSHA shows up.)
Having been in the business of controlling dust in coal and MNM mining operations for several decades, I can assure operators that MSHA has a lot of tools in their tool bag to force compliance by shutting down an operation until they get what they want. And what MSHA wants is compliance with the current 100µg/m3 RCS standard. Typically, in MNM mines, MSHA does this by issuing a citation and requiring a “dust or silica exposure control plan” and a compliant sample to terminate the citation. So, what MSHA does not get through the regulation (i.e., no plan approval as in coal), it achieves through abatement terms. And while an operator achieves compliance, MSHA will not allow the operator to produce product except to identify leaks and to see how the corrective actions are working. Thus, the operator must shut down and perform corrective actions before it can “run” again to test the system. This is repeated until the operator has taken its own samples or asks MSHA to re-take compliance samples and the samples “pass”. In coal, it becomes a plan approval nightmare where MSHA calls it the operator’s plan, however it insists on what terms it will accept while maintaining that it always knows better than the operator.
However, MSHA has other ways of forcing compliance which are more subjective than sampling and which will cause operators to go apoplectic. MSHA will resort to its “subjective” tools by using the housekeeping standard, the WPE standard, and maybe the defective equipment standard to get operator’s attention without knowing if an RCS overexposure exists. Now, this is when operators will want to have conversations above the local inspector because that is a clear directive from MSHA superiors to change how the standard is being applied, and that my friends is wrong, wrong, wrong.
So, what is an operator to do?
If you don’t have any sampling results except for MSHA samples, then begin conducting more sampling to gather data. For one thing, the operator needs to know the RCS (quartz) content of its material. Also, remember if an operator takes a sample, then this is a record that MSHA will have a right to review under the Mine Act. So, if an operator’s sample(s) show an overexposure, make certain that corrective actions are taken and recorded in the WPE book. This could be that leaks were fixed, accumulations were cleaned, or something else. The operator needs to show MSHA that it is doing something to correct the overexposure. Also, an operator can take an area sample to gain information which is not a result that should be provided to MSHA because it was not done for compliance purposes.
Review any operator sample results and begin thinking towards 2023 when the standard will most likely be 50µg/m3, which is half of where it is today. How would existing sampling results compare to the expected new standard? Begin to make plans to improve the operations to achieve the lower standard.
Make certain sand accumulations and leaks are identified as hazards in the WPE book and note that any corrective actions taken are also recorded in the WPE book. I know operators don’t like to make a record, but this is one record that can aid the operator if done correctly.
These are not simple steps because it may require an operator to take proactive steps and perhaps incur repair and maintenance costs or capital costs. Also, it is not simple because of the “subjectiveness” with which MSHA is already implementing this silica enhanced enforcement program. Operators have their work cutout for them just as OSHA employers did under the OSHA rule. However, the one big difference between the two agencies is that OSHA allows respiratory protection for compliance purposes, however MSHA currently does not. Let’s hope MSHA does the right thing in its rulemaking by allowing operators to use respiratory protection for compliance purposes under the right circumstances or else operators will have an even harder row to hoe.
As you may know, our firm has conducted over 80 RCS exposure assessments at mines and under the OSHA RCS standard to determine RCS levels and to make recommendations on engineering controls and administrative controls. We also draft exposure control plans for mine operators and employers and have trained several thousand persons under the “competent person” standard contained in the OSHA RCS standard.
