OSHA issued its final rule on silica. When will MSHA follow? ?

Last week, OSHA issued its final rule on silica. OSHA opened this silica rulemaking docket in 2010, and it proposed the rule in 2013. During the rulemaking, concerned parties submitted more than 2,000 comments and participated in 14 days of public hearings.

Two hundred stakeholders presented testimony. Spanning 606 pages, OSHA’s silica rule was published on Thursday in the Federal Register and takes effect in 90 days. It will apply to employers in general industry, maritime, and construction. MSHA has promised to follow suit. But, when?  Avi Meyerstein at law firm Jackson Lewis comments.

What OSHA’s rule says
OSHA’s final rule cuts the permissible exposure limit (“PEL”) for respirable crystalline silica in half, from 100 to 50 micrograms (as an eight-hour time-weighted average). It also imposes new requirements for exposure assessment, respiratory protection, medical surveillance, hazard communication, and recordkeeping.

Many industry groups opposed the proposed rule, arguing that the current PEL would protect workers if only OSHA would enforce it (OSHA admits that a significant percentage of employers did not comply with the prior standard). The industry groups also pointed out that, despite OSHA’s failure to effectively enforce the prior standard, the prior standard played a significant role in reducing the incidence rate of silicosis in employees.

Centers for Disease Control data show significant declines in silicosis under the prior standard. Commenters also faulted OSHA’s risk assessment, noted the infeasibility of collecting and analyzing accurate samples for enforcement, and argued that the costs of compliance would, in many cases, be ruinous.

MSHA promised to follow suit, but when?
Now that OSHA has finalized its rule, the question for mine operators is when MSHA will follow with its own silica rule. As recently as last November, MSHA’s regulatory agenda promised that MSHA would issue a notice of proposed rulemaking on silica in April 2016. Previewing its justification for a new rule, MSHA wrote:

“MSHA standards are outdated; current regulations may not protect workers from developing silicosis. Evidence indicates that miners continue to develop silicosis. MSHA’s proposed regulatory action exemplifies the Agency’s commitment to protecting the most vulnerable populations while assuring broad-based compliance. MSHA will regulate based on sound science to eliminate or reduce the hazards with the broadest and most serious consequences. MSHA intends to use OSHA’s work on the health effects and risk assessment, adapting it as necessary for the mining industry . . . . This rulemaking would improve health protection from that afforded by the existing standards. MSHA will consider alternative methods of addressing miners’ exposures based on the capabilities of the sampling and analytical methods.”

Silica is present in nearly all mines, from coal to metal/non-metal. Since at least 2010, MSHA identified M/NM goals to reduce silica exposures under the Government Performance and Results Act (“GPRA”). Under existing regulations (30 C.F.R. §§ 56/57.5001), M/NM mines must keep silica exposures below the 1973 ACGIH Threshold Limit Values (“TLVs”). Other sections (30 C.F.R. §§ 56/57.5002) require dust surveys “as frequently as necessary to determine the adequacy of control measures.”

Meanwhile, 30 C.F.R. §§ 56/57.5005 require operators to reduce exposure to permissible levels using the hierarchy of controls, with engineering controls required first (where feasible) and respiratory protection next. Further, 30 C.F.R. Part 58 addresses abrasive blasting and drill dust control.

As Henry Chajet explained in Coal Age Magazine, a new MSHA silica standard “can be expected to replicate OSHA’s” new rule. Comparing the challenges of implementing such a silica standard in mining with the difficulties presented by MSHA’s recent coal dust rule, Chajet said, “MSHA’s expected [silica] proposal will create challenges similar to — and even greater than — its coal dust proposal. Sampling and analytical inaccuracy, a refusal to recognize filtered air helmets as a primary control method, and a lack of feasibility of engineering controls at the very low limits under consideration are among the concerns raised by an anticipated silica rule.”

So, when exactly can we expect MSHA to follow OSHA’s lead?

The lengthy, contested, and involved OSHA silica rulemaking – spanning six years – underscores how long the process can be. During that time, OSHA had the benefit of a consistent agenda. From the time it began work on the rule in 2010 until the final rule in 2016, OSHA was serving the same administration. But, regulatory agendas can change dramatically from one president to the next.

MSHA may well propose a silica rule in the coming months, but it is difficult to imagine that the agency could complete the job before the next president takes office. MSHA has little reason to wait to start the process. But, if and when a new MSHA silica rule takes effect remains a big, open question.

Wise preparation in the meantime
In the meantime, of course, responsible mine operators continue to focus on limiting workplace exposures to silica and complying with MSHA’s existing rules. This is wise because MSHA continues to emphasize silica compliance. Mining companies should stay on top of exposure surveys, analyze their historical sampling results, and review their engineering controls and respiratory programs to stay ahead of enforcement. And they should stay tuned to any additional developments with the OSHA silica rule (such as court challenges) and MSHA rulemaking agenda so their voices can be heard when MSHA launches into rulemaking.

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