Historic Progress to Curb Black Lung Marred by Missed Opportunities

MSHA’s Long-Awaited Silica Dust Standard Relies too Much on the Coal Mine Operators who Created Crisis

Contact: Trey Pollard, trey@pollardcommunications.com, 202-904-9187

COAL COUNTRY – Yesterday, the Biden Administration’s Mine Safety and Health Administration (MSHA) released a final silica dust rule meant to protect coal miners from exposure to respirable silica. Silica dust is the principal cause of the resurgence of deadly black lung disease among coal miners, and advocates have been pushing for the federal government to implement a standard to limit miners’ exposure since 2009. 

After a draft rule was released from MSHA in June of 2023, more than 5,200 Americans signed onto a petition created by Appalachian Voices and Appalachian Citizens’ Law Center backing a stronger rule to crack down on loopholes in the law that would reduce the impact of the rule in blunting the black lung epidemic. Analysis by Appalachian Citizens’ Law Center indicates the final rule improves regulatory requirements for silica dust, but is not faithful to the mandates of the Mine Act and does not address many of the issues surfaced during the comment period.

“The Mine Act provides that dust concentrations in the mine atmosphere should be low enough that a miner should be able to spend their entire adult working life in the mines without incurring any disability or occupational-related disease,” said Wes Addington, Executive Director of Appalachian Citizens’ Law Center. “Our organization was shocked last summer by MSHA’s analysis that thousands of miners will continue to get sick and die from overexposure to silica dust under their proposed rule, we are now disturbed that the agency did not further reduce the Permissible Exposure Limit to a level that would provide significant protection.  To be clear, while the agency projects that 85 coal miners’ lives may be saved under the new rule, nearly 35 times as many miners will continue to die (2,940). Miners deserved a rule that would have maximized the prevention of disease and death and we’re saddened this opportunity was missed.”

The silica standard for coal miners has not been updated since 1985. Since then, mining methods have changed as larger, more accessible coal seams have been exhausted. Miners now must cut through more rock, leading to more exposure to silica dust that is 20 times more toxic than coal dust and causes the most severe forms of black lung even after fewer years of exposure. Based on scientific evidence, health experts and government agencies have repeatedly concluded that this silica dust exposure is a major cause of the black lung epidemic and that the outdated MSHA silica standard was woefully ineffective at protecting miners from this threat. Now, in Central Appalachia, one in five tenured miners has black lung disease and one in 20 has the most severe and totally disabling form of black lung. This led to an urgent push for an updated silica dust standard and – upon the release of a draft rule – a loud call for stronger safeguards than were initially planned.

In spite of the missed opportunity to issue a stronger Permissible Exposure Limit, there have  been some improvements from the draft rule, including:

• Improved initial sampling protocol
• New sampling requirements upon production changes, construction and maintenance processes
• Stronger record keeping requirements

However, experts at Appalachian Citizens’ Law Center note that the final rule relies heavily on coal operators’ “good-faith” engagement with this rule, especially when it comes to the rigor of periodic evaluations and post-evaluation sampling.

“We cannot rely on the coal mining companies that created the silica dust crisis to solve it. We need strong safeguards with no loopholes and enforced accountability, but this rule does not meet that standard. In the comments we submitted to MSHA on the proposed rule, there was extensive testimony from many miners illustrating that coal operators will look for every opportunity to cheat when it comes to dust sampling,” said Rebecca Shelton, Director of Policy at Appalachian Citizens’ Law Center. “These coal mine operators have every incentive to continue cheating and hiding dangers when the rules don’t hold them accountable, and we have real concerns that this rule doesn’t shut that loophole.”

Other areas in which the final rule was not strengthened from the draft proposal include:

• Maintaining a quarterly frequency of required sampling, which is too low given the frequently changing conditions in mines;
• Not requiring the withdrawal of miners and cessation of production when silica samples are over the permissible exposure levels, meaning miners will still be at work in dangerous conditions.
• Failing to create any requirements or incentives for the development of improved technology for real-time silica sampling and results.

Over a decade ago, in 2009, Appalachian Citizens’ Law Center petitioned MSHA to establish a dust standard for respirable crystalline silica. While MSHA responded and stated an intention to publish a proposed standard by April 2011, the rule was never promulgated and a decade of inaction followed. In 2016, the Occupational Safety and Health Administration established a reduced silica standard for other occupations, but because MSHA oversees mining regulations, the change meant miners had less protection from silica than any other group of workers. In 2021, ACLC again petitioned for a silica dust rule and the rule was reportedly drafted and submitted to the Office of Management and Budget in January of 2023, where it sat until the summer of that year. The thousands of miners and advocates who weighed in during the comment period were clear that the draft rule needed significant strengthening.

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