What You Need to Know About MSHA’s Final Rule on Silica: P&Q

What You Need to Know About MSHA’s Final Rule on Silica
By Zach Byers| June 12, 2024- Pit & Quarry Magazine

Editor’s note: With the focus of this month’s column being on the Mine Safety & Health Administration’s (MSHA) final rule on silica, Ogletree Deakins’ Bill Doran and Margo Lopez give way in this space to their colleague, Zachary T. Byers, who serves as the firm’s point person on the new rule.

MSHA published its long-anticipated final rule on respirable crystalline silica for coal mines and metal/nonmetal mines in April.

The final rule, titled, “Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection,” contains a number of provisions identical to the proposed rule.

Still, in its final rule, MSHA extends the compliance timeline and adds unexpected requirements for reporting to MSHA and the National Institute for Occupational Safety & Health (NIOSH). Absent from the final rule are several major items that were the subject of industry comments.

Key rule elements
• Effective date. The final rule gives operators more time to come into compliance with the new regulations than MSHA had stated in the proposed rule. Metal/nonmetal mines have until April 8, 2026.

• Permissible exposure limit and action level. The final rule keeps the proposed rule’s permissible exposure limit (PEL) for silica of 50 micrograms per cubic meter for a full shift exposure, calculated as an eight-hour time-weighted average. There is also an action level (AL) of 25 micrograms per cubic meter, which triggers additional sampling requirements.

• Exposure monitoring. A concern with the proposed rule was the extensive and burdensome exposure sampling requirements. The final rule maintains much of that, albeit with some modest changes.

By the compliance date, operators must “commence sampling” for any miner who may be expected to be exposed to silica. If that sample is below the AL, operators must still take an additional sample within three months. If that second sample is also below the AL, no further sampling is required, but the operator must still make periodic qualitative evaluations.

These periodic qualitative evaluations may require the operator to conduct additional sampling.

If a sample is above the AL yet below the PEL, sampling must be conducted every three months until two successive samples show silica levels below the AL. Any samples above the PEL will require the operator to take corrective action and sample until the results show no PEL exceedance.

• Reporting requirements. The final rule requires mines to “immediately” report to MSHA any samples indicating exposure above the PEL. Mine operators will also be required to provide medical surveillance chest X-ray results to NIOSH once NIOSH establishes a reporting system.

• Engineering and administrative controls. The final rule mandates that engineering controls are to be the primary means for lowering exposures, followed by certain administrative controls as a supplemental measure only. The final rule explicitly prohibits the rotation of miners as an administrative control.

• Respiratory protection. Respiratory protection cannot be used for compliance, except while engineering controls are being developed and implemented and where necessary on a limited basis due to the nature of the work, such as for “occasional entry into hazardous atmospheres to perform maintenance or investigation.”

• Medical surveillance. The final rule requires metal/nonmetal mine operators to offer medical surveillance at no cost to current miners. Medical exams are mandatory for new miners. MSHA did not adopt medical removal/transfer rights for metal/nonmetal miners as they exist for coal miners under 30 C.F.R. Part 90, but it does intend “to consider this issue in a future rulemaking.”

• Recordkeeping. The final rule contains detailed recordkeeping requirements. These include keeping all evaluation, sampling and corrective action records for at least five years.

Takeaways
MSHA will provide guidance and assistance to operators, but how helpful this will be remains to be seen. The rule takes a less-than-practical approach to compliance by prohibiting rotation of miners as an acceptable control and by limiting the reliance on respiratory protection.

In addition, MSHA refused to adopt a “Table 1” that would specify acceptable control measures for certain tasks. The rule mandates extensive sampling that will create a significant burden for operators.

It is almost certain that the new rule, when fully implemented, will be a focus of aggressive enforcement. In this interim period before the rule’s requirements are mandatory, mine operators may want to prepare for the required sampling, medical surveillance and recordkeeping.

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