Regulators Poised to Update Miners’ Protections from Silica Dust

By Willie Dodson, Central Appalachian Field Coordinator with Appalachian Voices

“The dust you see usually doesn’t hurt you very bad,” says Jerry Coleman, a retired coal miner with black lung disease living in Kanawha County, West Virginia. “It’s the dust you don’t see that gets you. The bigger dust gets in your mouth and your nose and you can spit it out. But it’s the small dust – the silica – that you don’t pay attention to. Over time, you’re used to doing certain things, and you get to noticing that you can’t do them anymore.”

Coleman has paid a heavy personal price for what he says are weak and ineffective regulations intended to protect miners from exposure to silica dust in the mines. He has progressive massive fibrosis, or complicated black lung – the most severe form of the disease, and as of March, he had been stricken with pneumonia for two months. His son – 41 years old and still working in the mines – was also diagnosed with black lung just months ago.

“Back in the ‘70s, you still had a lot of good seams of coal,” Coleman says, referring to large coal deposits that are relatively easy to mine. “But what they’re mining now is what nobody wanted a long time ago.”

Over the past couple of decades, black lung has been on the rise. It is more severe than in previous generations, and is affecting younger miners than ever before – especially in Central Appalachia. One of the chief causes for these trends is that many large coal seams in the region have been mined out, requiring miners to cut through large amounts of sandstone in order to access dwindling coal deposits. This exposes workers to unsafe levels of respirable silica, which scars the lungs even worse than coal dust, and leads to complicated black lung.

As president of the Kanawha County Black Lung Association, Coleman is a leader in the grassroots push for stronger regulations to protect miners from breathing in silica.

The Department of Labor’s Mine Safety and Health Administration will propose updates to the way it regulates silica in coal and other mines as early as April. The Black Lung Association and other advocates are demanding a reduction in the permissible exposure limit for respirable silica in the mining industry from 100 micrograms per cubic meter to 50 micrograms per cubic meter – the limit that applies to all other industries.

These organizations want the new rule to require that coal companies prioritize reducing dust levels throughout the workplace, rather than overly rely on personal protective equipment used by individual miners to limit dust inhalation — equipment many miners describe as cumbersome and impractical. Advocates also want to see more frequent and targeted inspections and silica sampling in areas where the high concentrations of respirable silica are most likely to occur.

In September 2021, MSHA committed to review silica regulations in response to a petition filed by Appalachian Citizens’ Law Center, a nonprofit law firm that represents miners. The agency concluded this review in January of 2023, and is expected to announce a new proposed silica rule in April. This will kick off a public comment period before the agency issues its final rule.

A new enforcement initiative

But some steps to reduce dangerous silica exposure in the mines have been within the scope of the agency’s authority for years. Last June, the agency announced a new silica enforcement initiative intended to implement some of these measures. The agency can take these steps without new regulations.

“Assistant Secretary Williamson and the agency are committed to promulgating a rule that will enhance protections for all miners and provide the level of protection envisioned under the Mine Act,” said an MSHA spokesperson in a statement provided to Appalachian Voices. “But complex health rulemaking can take time, and the Silica Enforcement Initiative was developed to take action now to protect miners.”

The statement also describes a larger initiative called Miner Health Matters, designed to emphasize that concerns over miners’ health, including exposure to respirable silica and coal dust, are as important as concerns over safety in the mines.

In short, the plan was to ramp up use of a type of hazardous condition inspection – referred to as 103(i) spot inspection – at mines with a history of non-compliance, and to increase dust sampling where and when elevated silica is most likely in the mining process. The initiative also included commitments to work proactively with industry and labor in order to improve compliance with existing regulations, and to inform workers of their rights.

The initiative was announced by Chris Williamson, the assistant secretary of the Department of Labor in charge of MSHA, at a convention of the United Mine Workers of America to much acclaim. Other organizations, including Appalachian Voices, the organization that publishes The Appalachian Voice, soon released statements praising the move and reminding the agency of the need for stronger binding silica regulations.

Gaps in public mine safety data

“Now, nine months later, the impacts of the initiative are unclear.

Appalachian Voices examined publicly available 103(i) spot inspection and respirable silica dust sampling records over the 10-month period after the initiative was announced and the same period one year earlier. This analysis did not produce strong conclusions as to the impacts of the enforcement initiative, or how the Mine Safety and Health Administration is implementing it.

In its statement provided to Appalachian Voices, MSHA states that silica overexposures in coal mines have decreased by 22% since the initiative was announced, but Appalachian Voices could not verify this calculation. Appalachian Voices has asked MSHA for more information about how they reached this figure. This article will be updated when that information is received.

Appalachian Voices also found that public records do not indicate a significant change in the number of 103(i) spot inspections conducted at coal mines since the initiative was announced, and that the data does not distinguish between 103(i) spot inspections related to silica overexposure and those related to other hazardous conditions, such as methane releases.

After decades of hearing from the agency that it plans to address this crisis and that it plans to reduce miner exposure to silica dust, a critical step towards building confidence in the efficacy of the agency’s actions going forward is transparency,” says Rebecca Shelton, director of policy and organizing at Appalachian Citizens’ Law Center.

Shelton points to shortcomings in publicly available data and the absence of a user-friendly program displaying this information to explain why it’s difficult to get a clear picture of silica exposure in mines. Through its Mine Data Retrieval System, MSHA enables the general public to access data relevant to dust and silica sampling, inspections and other aspects of mine safety. But it isn’t apparent in the data whether and how sampling strategies have been modified under the new silica enforcement initiative, or what kind of follow-up MSHA is doing with operators that return high samples.

Most of the information that is online is only available via massive data downloads, producing tables that would be difficult for the general public to understand.

Speaking on behalf of Appalachian Citizens’ Law Center, Shelton gives MSHA credit for making certain violation data easily accessible via an online search tool, but believes the agency should set up similar tools for other sorts of information.

“To start, we recommend that MSHA develop an online dashboard for the silica enforcement initiative, similar to the agency’s public tracker for Patterns of Violations, tracking mines that have returned silica samples that are out of compliance and/or over 100 micrograms per cubic meter,” Shelton says.

“Unlike other workplace safety hazards, dust exposure and black lung disease won’t decline or increase in miners overnight. Disease prevalence isn’t a good immediate indicator of whether exposure is reduced. We need to be able to see the data that actually shows that silica dust levels are reduced.”

“The user-friendly dashboard we are asking for should provide documentation not only of the mines with elevated samples, but also information about the steps MSHA or operators take concerning these samples (i.e. resampling, finding a deficiency in roof control or ventilation plans, submitting revisions to such plans, etc.),” Shelton wrote in an email, adding that the platform should also show whether silica samples were collected during particularly high-dust parts of the mining process.

Persistent concerns over evading regulations

Despite the enforcement initiative and the forthcoming updates to silica regulations, Jerry Coleman is concerned that mine inspections and sampling data don’t offer a complete picture of conditions in the mines.

“If I was at MSHA and I wanted to run a true dust sample … I would put that inspector there for a week,” Coleman says.

Coleman explains that coal dust and silica samples are often taken in the least dusty parts of a mine, and that mine operators do more to control dust during mine inspections than they do on a typical work day in order to evade enforcement of health and safety measures.

“If you would run [a mine] for a week with an inspector there, and make sure they run it exactly like they say in their ventilation plan … you would see that there’s constantly people breathing the dust,” he says.

But week-long mine inspections are unlikely, as Congress has not allocated enough money to the agency to keep up with inflation and maintain staffing levels. Today, there are nearly 50% fewer coal mine inspectors than there were in 2013, according to a review of federal budget archives.

On March 9, the Biden administration proposed a 13% budget increase for the Mine Safety and Health Administration for fiscal year 2024. President Biden also proposed significant increases in MSHA’s budget through fiscal years 2022 and 2023, only to have Congress allocate far less both years. Increased spending on MSHA is even less likely under the current Congress, where Republicans in control of the House of Representatives have vowed to cut spending.

But the proposal has some champions in Congress. Rep. Bobby Scott (D-Va.) has long been a leader in efforts to address the causes of black lung, and to ensure that healthcare and disability benefits are accessible to those who are afflicted with the disease.

“President Biden is right to propose a significant investment in the health and safety of our nation’s miners,” Scott says. “Mining is dangerous work, and the risks miners face on the job are now even greater as cases of severe lung disease spike. We should be doing everything we can to support miners’ safety and make sure that they can come home safe and healthy. However, we cannot achieve that goal unless we provide the Mine Safety and Health Administration with the tools it needs to do its job.”

“We just want to get these young guys out of the dust,” Coleman says of his efforts with the Black Lung Association. “Every year a miner has to go to a mandatory safety training. I think at every training, we ought to have a person with black lung get up and give a speech to these 20-some-year-old boys, and tell them, ‘When I was 18 years old, I was just like you. I was 10 foot tall and bulletproof and thought nothing would ever happen to me. But I got black lung, and it’s gonna get you just like it got me.’”

The Black Lung Association can only work to educate miners, but, Coleman says, “MSHA can make the rules.”

“The most impactful step that can be taken right now to stop the black lung epidemic is the creation of a silica dust rule,” Shelton says. “I’m optimistic that we’ll see a proposed rule in the coming weeks. I believe Assistant Secretary Williams is committed to seeing this through.”