The first half of 2024 has seen the Mine Safety & Health Administration (MSHA) actively advance its regulatory agendas through rulemaking.
While election years usually see a slowdown in rulemaking, the agency this year continues to move forward with multiple rulemaking efforts.
Earlier this year, MSHA issued a final surface mobile equipment rule that’s set to become enforceable on July 17. In addition to this effort, the agency managed to finalize and publish its rule lowering permissible exposure to respirable crystalline silica (RCS).
MSHA’s new final rule on RCS imposes stringent new requirements on operators and contractors in coal and metal/nonmetal mining.
The rule is effective on June 17, 2024, but MSHA has set the following new deadlines by which mine operators must comply:
• Coal mine operators: April 14, 2025
• Metal/nonmetal operators: April 8, 2026
Here are some key takeaways from the proposed rule:
Permissible exposure limit (PEL) & action level (AL)
The final rule unsurprisingly retains the proposed PEL for all miners at 50 micrograms per cu. meter, which is calculated as a time-weighted average over an eight-hour shift. This is about a 50 percent reduction from the existing metal/nonmetal PEL of about 100 micrograms per cu. meter.
MSHA also imposed an AL of 25 micrograms per cu. meter as an eight-hour time-weighted average, which triggers quarterly sampling until two consecutive samples are collected – more than seven days apart – under the AL.
Sampling
All operators will need to collect two consecutive samples below the AL for each position – or representative sample – in which miners are reasonably expected to be exposed to RCS to comply with the rule at the start.
A hugely consequential change in the final rule, MSHA included a provision in §60.12(b) that “[t]he mine operator shall immediately report all operator samples over the PEL to the MSHA district manager or to any other MSHA office designated by the district manager.”
MSHA claims in the preamble that this is for the multiple purposes of monitoring corrective actions, offering compliance assistance and – on a case-by-case basis – issuing enforcement citations. However, elsewhere in the preamble and in the context of temporary use of respiratory protection, MSHA states: “[Metal/nonmetal] operators will be cited for the overexposure.”
Corrective action
Corrective actions are mandatory and must be initiated immediately following a sample result above the PEL. Operators will need to document their corrective actions and, once implemented, collect additional samples to determine the effectiveness of the actions taken. If the results continue to exceed the PEL, additional corrective measures must be taken by the operator until samples begin coming back below the PEL.
MSHA expressly prohibits compliance through the administrative control of rotating miners among different tasks or locations to keep exposures below the PEL. MSHA deems rotation ineffective because it fails to address the root cause of the hazard, requires the mine operator’s continuous attention and increases risks to more miners.
In addition, respirators are not acceptable means of compliance or corrective action. When respirators are used, the operator must have in place a respiratory protection program that meets ASTM F3387-19.
Related: MSHA releases surface mobile equipment regulation
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.