MSHA, OSHA advance rulemaking initiatives

This summer, the Biden administration’s Department of Labor pushed forward its rulemaking agenda for the Mine Safety & Health Administration (MSHA) and the Occupational Safety & Health Administration (OSHA).

After years of deliberation and hearing rumors of its development, MSHA published a proposed rule on the regulation of respirable crystalline silica (RCS) for the nation’s coal and metal/nonmetal mines. Shortly after MSHA’s proposed rule was published, OSHA’s final amended rule on e-recordkeeping found its way to the Federal Register. Here’s what both could mean for your company.

MSHA’s proposed silica rule

The proposed rule from MSHA – titled “Lowering Miners’ Exposure to Respirable Crystalline Silica & Improving Respiratory Protection” – is a stark contrast to the existing regulation. MSHA seeks to establish a reduced permissible exposure level (PEL) and create an action level (AL) for the mining industry. It also intends to enact onerous sampling requirements while forcing engineering controls by limiting the permissible use of some administrative controls such as respiratory protection.

Included as provisions of the proposed rule are:

■ Lowering the PEL to 50 micrograms per cubic meter of air (µg/m³) and creating an AL of 25 µg/m³. MSHA’s current PEL for RCS is approximately 100 µg/m³.

■ Operators and contractors must conduct baseline sampling for all miners who could reasonably be exposed to RCS in the workplace in the first six months after the rule becomes effective.

■ In the event sample results come back between the AL and PEL – greater than 25 µg/m³ but less than 50 µg/m³ – operators will need to continue samples at least every three months until two consecutive results are collected below the AL for the miner/representative sample.

■ If a sample result is greater than the PEL, the operator has to enact several responses. This includes outfitting impacted miners in respirators, implementing corrective action to lower exposure and conducting sampling.

■ Operators will be required to conduct semi-annual evaluations of the mining process and equipment at the facility. If the evaluation indicates that a change in the miner’s exposure to RCS may be present due to new equipment or material, the operator would need to conduct additional sampling of the affected miners.

■ Metal/nonmetal operators would have to provide medical surveillance to all new miners, which is mandatory, with a follow-up after three years.

Additionally, metal/nonmetal operators would need to offer medical examinations to existing miners and newly hired experienced miners at least every three years.

■ Operators would need to maintain all sampling, corrective action and semiannual evaluation records for at least two years and make them available upon request by MSHA, miners’ representatives or miners.

These provisions are part of the MSHA proposed rule and may change before a final rule is released. At the time of print, the rule was still in the rulemaking process and open to comments. All comments were due to MSHA by Sept. 11.

OSHA’s amended e-recordkeeping rule

In March 2022, OSHA proposed amending its e-recordkeeping rule requiring some employers to submit injury and illness data electronically to OSHA. Additionally, this information will be posted in a publicly accessible database.

Despite concerns from stakeholders about the cost and time it will take to comply with the rule and regarding the submission and posting of personally identifiable employee information, the rule has been updated to its final form and published in the Federal Register.

The rule will go into effect Jan. 1, 2024, and OSHA has made it clear that it is meant to be in effect for the next deadline for e-recordkeeping submissions – due March 2, 2024. Included in the final rule are two appendices, which include specific industries that need to comply with the new provisions based on size and hazard classification.

Under the amended rule, the following employers must submit specific injury and illness records to OSHA:

■ Workplaces with 100-plus employees in Appendix B workplaces will have to submit 300 log, 301 incident reports and 300A annual summary data.

■ Workplaces with 20 to 249 employees in Appendix A industries will have to submit their 300A annual summary data.

■ Workplaces with 250-plus employees in any industry will also still have to submit their 300A annual summary data.

Final thoughts

Rulemaking at the federal level is not a simple or quick process, but MSHA and OSHA are actively working on each of the agencies’ regulatory agenda.

Staying on top of these developments will allow employers to consider what proactive steps are necessary to prepare for final rules going into effect.

Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.

Related: MSHA dusting off past enforcement strategies