MSHA’s airborne contaminant enforcement on the rise

By and |  July 20, 2022
Headshots: Bill Doran and Margo Lopez

Bill Doran and Margo Lopez

The Mine Safety & Health Administration (MSHA) recently announced that it is implementing a silica enforcement initiative focused on reducing exposures to respirable crystalline silica.

In its notice to stakeholders, MSHA states that, at mines with “repeated overexposures to silica,” inspectors will conduct spot inspections every 15 days at irregular intervals using the model applied for mines that emit methane. This model is described in section 103(i) of the Federal Mine Safety & Health Act.

Section 103(i) requires the agency to perform spot inspections at frequencies of five to 15 days, at irregular intervals, whenever MSHA finds the presence of methane or “some other especially hazardous condition.” To our knowledge, that hasn’t been applied to situations other than methane-producing mines before.

MSHA has provided operators with very little information on the new enforcement program. What is stated echoes what has long been in place concerning silica enforcement at metal/nonmetal mines, including that abatement will be required “within a period of time” and that 104(b) withdrawal orders will be issued for “overexposures not abated.”

There is no indication as to how the agency will decide what constitutes “repeated” overexposures or whether MSHA will inform an operator that it is approaching the level of having “repeated” overexposures before launching into section 103(i) enforcement at a mine. There also is no indication of how MSHA will decide that it is time to stop conducting these spot inspections at a given mine.

Operators can expect there will be more to this program than appears in the announcement. For example, for abatement, inspectors may try to require a written corrective action plan targeted at addressing the root cause of the exposure. There may be issues with convincing inspectors that the mine has accurately identified the root causes or that adequate means are being put in place to address them.

Finally, inspectors may be more readily issuing 104(b) orders without giving operators a realistic period of time to complete repairs or implement other measures needed to reduce exposures. Operators may also face challenges in completing abatement on things such as housekeeping conditions that can, by their very nature, lead to elevated exposure for a limited time.

While this initiative is plainly meant to be limited to silica, operators should be aware that at least some inspectors seem to be extending this beyond silica to include respirable dust and even total dust. This is happening even though there is no significant silica content in the materials, including situations where miners are wearing respiratory protection.

To manage this targeted enforcement, whether focused on silica or non-silica dust exposure, operators may want to consider the following:

• Periodically conduct sampling, as conditions warrant, to identify the potential for overexposure and test the effectiveness of engineering controls.

• Conduct side-by-side sampling when MSHA does sampling to have a comparison against MSHA’s sample results.

• Where agency sampling has identified a potential overexposure, be diligent in developing an abatement plan and keep the inspector informed of the plan and progress made in implementing it.

• When more time is needed to achieve abatement than originally anticipated, let the inspector know as soon as possible and request an extension of the abatement period for the citation.

• Maintain up-to-date training and fit testing on respiratory protection. Ensure miners are clean-shaven where needed for wearing a respirator. Have training and fit testing records readily available.

• In the event MSHA issues a 104(b) failure-to-abate order, understand what is within the scope of the order and request clarification, if necessary. Ask the inspector to modify the order to limit its scope where MSHA has delineated the order as affecting a broader area than is reasonably related to the circumstances leading to the overexposure.

MSHA’s initiative undoubtedly is being launched in anticipation of the upcoming release of a proposed rule on respirable crystalline silica. To the extent MSHA’s increased sampling leads to issuance of more citations, the agency will likely use that data to justify more restrictive requirements in its new rule. While MSHA’s silica permissible exposure limit is still unchanged, the agency clearly is not waiting for its new rule to ramp up enforcement.
Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

Featured Photo: P&Q Staff

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