Legislation & Regulation
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MSHA Moves Ahead on Silica RFI But Leaves All Options Open
October 2019 by Avi
Just before Labor Day 2019, the Mine Safety and Health Administration (MSHA) 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” (H 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, the Occupational Safety and Health Administration (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?
How Fast Can It Move?
How to Build the Case?
Whether to Revisit the Role of PAPRs?
The theory is that controls, which remove the hazard from the entire workplace, are more protective and reliable, 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?
Can We Keep Coal and Metal/Non-Metal Separate?
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
1. New or developing technologies and best practices to protect workers;
What Should You Do?
For independent miners and 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. Comments are due October 28th.
You can email comments to: zzMSHAfirstname.lastname@example.org
Mail comments to:
To locate and read the full text in the Federal Register, do an internet search for “Docket No. MSHA 2016-0013”.
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