Advocates urge more enforcement, oversight for MSHA’s proposed silica dust rule

A public hearing is scheduled for 9 a.m. on Thursday in Beckley

By: - August 7, 2023 5:59 am
Miner cutting coal with a large machine at coal seem in deep mine.

Exposure to mixed coal mine dust that contains silica — a carcinogen — can lead to the development of pneumoconiosis, commonly known as black lung disease. (Getty Images)

The U.S. Mine Safety and Health Administration is hosting a public comment hearing in Beckley on Thursday on a proposed rule that could strengthen silica exposure standards — one of the leading causes of black lung — for coal miners.

The proposed rule would, for the first time, implement a separate exposure limit for silica dust specifically, cut the maximum exposure limit for silica dust to 50 micrograms per cubic meter for a full-shift exposure and create an “action level” for when exposure comes at 25 micrograms per cubic meter for a full shift. 

Advocates for those living with pneumoconiosis, commonly referred to as black lung, and the families of workers who have died from it, however, hold concerns about the implementation and enforcement of these standards in the proposed rule. 

Sam Petsonk, a West Virginia-based attorney who has represented “many hundreds” of coal miners in claims seeking black lung benefits, said the current state of enforcement mechanisms and testing standards, among other policies in the proposed rule, has turned it into “utter swiss cheese.”

“The administration and leadership [at MSHA] has all the right priorities and there is something deeply commendable in proposing this rule, but the bureaucracy in MSHA has written a rule, a proposed rule, that undermines that,” Petsonk said. “I believe the agency means what it says, that the leadership does intend to do what they’ve committed in establishing a silica exposure limit that will actually be protected and enforceable.”

That’s the point of the public comment, Petsonk continued, so people will have the opportunity to lay out potential problems with the proposed rule and have MSHA respond to those concerns.

For Petsonk and other advocates, weaknesses of the proposed rule boil down to three main concerns: No regular sampling for silica levels, no penalties for mining operations found not in compliance with the rule and no mandatory or enforceable protections for coal miners working in mines with elevated exposure levels. 

If mines were found to be in violation of the proposed rule, there is currently no monetary penalty or other action to incentivize operators to correct the situation or to protect workers from being forced to continue working in dangerous conditions. Basically, Petsonk said, operators would be warned about the violation.

“It’s like saying if we catch you speeding we’ll ask you not to speed anymore and send you on your way and see how it works,” Petsonk said, “MSHA has the authority to issue citations and withdraw orders mandating that miners be removed from a violated area of the mine. I’d like to see that in the final rule — I’d like to see proposed monetary penalties and the withdrawal of miners when the dust is too high, too dangerous.”

In its current state, due to the proposed sampling requirements, Petsonk said it’d be incredibly difficult to find violations when they occur even if there was an enforcement mechanism.

The rule would not impose routine sampling for silica dust outside of what is currently performed by MSHA. Instead, it requires one-time sampling for all operational coal mines within 180 days of the rule going into effect. After that six month period, there are no guidelines for new mining operations that start and operators at active mines would have to opt in to periodic sampling for silica.

“MSHA has a limited presence in mines, and while they already sample for silica, clearly the quarterly sampling has not been efficient,” Petsonk said. “If MSHA’s sampling system was adequate to capture silica exposure, it would have done so already and we wouldn’t see the cases we see because they’ve been sampling for that over the last several decades.”

Self-reporting by coal mining operators is a longstanding issue and criticism within the mining industry, where safety violations can be easy to hide due to lack of oversight and enforcement and where the consequences can too often mean death or serious injury for workers.

Quenton King, a federal legislative specialist with nonprofit advocacy group Appalachian Voices, said this is why it’s important to have coal miners with first-hand experience appear at Thursday’s public comment and share what they’ve witnessed.

“You can talk all day about how important it is to have real oversight, how little coal mining companies can be trusted to test their air and whatnot. We hear countless stories of foremen hiding the testing results or rigging testing to suit them,” King said. “We’re really relying on the people who are inside, who got black lung, to say, ‘you can make this rule but without the power to enforce it, we can’t trust operators to follow it.’”

According to an advisory from the Centers of Disease Control and Prevention in 2018, it’s estimated that 20% of coal miners in Central Appalachia are suffering from black lung — the highest rate detected in more than 25 years. One in 20 of the region’s coal miners are living with the most severe form of the condition.

In recent years, there has been an uptick in the number of miners diagnosed with black lung, and they’re developing it at younger ages than ever before. This is due to the coal seams mined today, unlike in the past when it was abundant and openly accessible, being shielded by layers of silica-bearing sandstone. 

“We’re seeing people in their 30s and 40s with X-rays we used to see in their 60s and 70s. People are becoming fully disabled earlier and earlier in their careers,” King said. “Black lung — it’s deadly. It’s incurable. At its worst stages it drastically harms and inhibits your way of life.”

The public comment meeting on Thursday in Beckley, held in room B102 of the National Mine Health and Safety Academy at 9 a.m., is the second of three to be held by MSHA. The first was held in Arlington last Thursday and the next will be in Denver on August 21. 

Initially, there was no meeting scheduled for the proposed rule in Central Appalachia despite the high rates and impact of silica dust here. Days after the rule was published and the public comment period set, however, MSHA added the Beckley meeting in response to advocates’ outcries.

Those who wish to attend the meeting can do so and submit testimony either virtually or in person. It is encouraged, but not required, to register for the meeting here:


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Caity Coyne
Caity Coyne

Caity Coyne covers state policy and how it intersects with individuals and communities for West Virginia Watch. She's been reporting in West Virginia for 10 years, most recently covering public health and the Southern Coalfields for the Charleston Gazette-Mail.