An overview of industry challenges to the new MSHA silica rule

A coalition of mining industry associations led by the National Mining Association (NMA) and the National Stone Sand and Gravel Association (NSSGA) filed a challenge to the new U.S. Mine Safety and Health Administration (MSHA) silica rule in November 2024. The other members of the coalition are the American Exploration & Mining Association, American Iron and Steel Institute, Portland Cement Association, and Texas Aggregates and Concrete Association. A separate brief was filed by the Sorptive Minerals Institute. Summary By way of background, the new rule lowered the permissible exposure limit (PEL) for crystalline silica from 100 µg/m3 to 50 µg/m3; established an “action level” at 25 µg/m3; initiated mandatory sampling requirements, mandatory semiannual reviews of mining conditions and methods, and established medical surveillance requirements for all miners, regardless of their exposure to silica. By law, challenges to regulations are conducted in a very specific and defined environment. They are filed directly with the Court of Appeals and may only be filed by parties that submitted comments during the rulemaking process. No new evidence may be presented, and the entire proceeding is based on the information in the rulemaking record and the briefs submitted by the parties. The plaintiffs challenged the new regulation on several grounds. While they did not object to the lowered PEL or the action level, they raised arguments in support of overturning the rule. Those arguments were broadly divided into three aspects of the rule: The sampling and coverage requirements. The permissible abatement methods. The medical surveillance requirements. Sampling requirements With regard to the sampling requirements, they argued that sampling should not be necessary at all mines. Basically, the plaintiffs argued that given the wide range of potential geological conditions at mines, a mine should be able to avoid the sampling requirements based on objective evidence. Although this example was not used, sampling would be a meaningless exercise for, say, an underground salt mine where crystalline silica is simply not present in the geology. Arguing further on the sampling issue, the plaintiffs took issue with MSHA requiring mines to act on the basis of a single sample. They argued that MSHA itself recognized that there is wide variability in laboratory analyses of identical samples. Instead, they reasoned, any determination of coverage should be based on multiple samples, which would account for potential variability. They specifically pointed to other MSHA rules which recognize this variability by only basing potential violations on the average of multiple samples. Compliance methods With regard to compliance methods, the plaintiffs argued that MSHA’s prohibition on personal protective equipment (PPE) and worker rotation was irrational, inconsistent with MSHA past practice and failed to take existing practice into account. They argued that worker rotation is allowed as a method of compliance with regard to other types of hazards such as heat and radiation, so there was no basis for MSHA to prohibit it as a form of compliance. The prohibition on worker rotation as a form of compliance also forms the basis for one of the plaintiff’s primary arguments. In its rulemaking, MSHA argued that the new regulation was feasible because the vast majority of mines already meet the new, reduced PEL. However, the plaintiffs argued that the data for MSHA’s argument are based on the fact that most mines with silica exposures currently use worker rotation as a means of compliance. Since the new rule would prohibit worker rotation as a means of compliance, the data on which MSHA based its feasibility determination are fatally flawed. Thus, the plaintiffs argued, compliance with the current rule is infeasible — not because of the lowered PEL, but because of its prohibition on the most effective means of achieving it. X-ray medical evaluations Finally, the plaintiffs argued that the rule’s requirement that all miners receive periodic X-ray medical evaluations, regardless of any exposure to silica, exceeds both the scope of the rulemaking and MSHA’s authority. Simply put, the rule requires that all new miners receive chest X-rays within 60 days of employment, and again within three years after that, and then again in another two years if there is any evidence of decreased lung function. Current miners must also get X-rays every five years. Each X-ray must be read by a “NIOSH certified B reader” — that is, a radiologist specially trained and certified to read X-rays for signs of black lung and silicosis. As can be seen, these medical evaluation requirements are extremely broad and not directly related to silica exposure. What is more, its direction based on “any decrease in lung function” could be related to any number of causes, including cigarette smoking, and thus impose extra requirements on mine operators even though the miner’s lung issues have nothing to do with silica exposure. Both the breadth of this requirement and lack of its relation to silica exposure, the plaintiffs argue, render it beyond the authorization of both the statute and the rulemaking. Sorptive Minerals Institute brief A separate brief was also filed by the Sorptive Minerals Institute raising a number of arguments generally asserting that the rule should not apply to sorptive clay producers simply because there is no silica present in that material. Conclusion These are very generalized descriptions of the arguments raised in the briefs, but they are intended to provide an overview of the challenge that is now taking place. It is well recognized that this rule was a priority of the prior administration. It is also well recognized that MSHA officials in the administration that preceded it had a very different view of how a silica regulation should look, including the allowance of worker rotation and PPE as a means of compliance. As in any litigation, it is up to the party being sued to respond. There is quite a bit of speculation going around as to what that response may be. It is possible that the Labor Department could simply “confess error” and essentially admit that the plaintiff’s arguments are correct, thereby allowing the rule to simply be revoked. As an alternative, the department could settle with the plaintiffs by agreeing to amend one or more sections of the rule to address their arguments. Of course, the department could also defend the suit and fight against the potential invalidation of the rule. Legal proceedings usually move at glacial speed, so at this point, what may happen is anybody’s guess. Watch this space for developments. n References NSSGA v. MSHA 8th Cir. 24-2661Sorptive Minerals Institute v. MSHA 8th Cir. 24-1889, 24-2663

An overview of industry challenges to the new MSHA silica rule

Authored by: Mark Savitt

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