The new silica dust limit, 50 micrograms per cubic meter of air, is half of what is currently allowed, and has long been called for by the National Institute for Occupational Safety and Health, along with others. (Getty Images)

It was a celebratory moment years in the making when acting Labor Secretary Julie Su, flanked by miners and advocates, announced the rollout of a new rule limiting silica dust exposure for miners in Uniontown, Pennsylvania, last week.

For years, advocates for mine safety had urged the federal government to adopt strict rules around the substance that has led to an increase in severe black lung cases among young miners. Finally, one was announced.

“For too long, we accepted this as just the way things are for people who work in mines,” Su said in Uniontown Tuesday. “They’ve had to work without the same protections from silica dust that people in other industries have, even though we’ve known about the harms of silica dust.”

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Mine safety advocates largely agree the rule is a positive change. But some are concerned that it still leaves too much power in the hands of mining companies instead of regulators, and lacks clarity when it comes to how it should be enforced.

“Overall, the rule is a step in the right direction, which is what we’ve been asking for for many years now,” said Erin Bates, a spokesperson for the United Mine Workers of America. “But coal operators are going to have to be held accountable at the end of the day.”

In recent years, severe cases of black lung disease have become more common. One of the major causes is silica dust. Contact with the substance is becoming more prevalent as the Appalachian region has been so aggressively mined that miners are digging into more narrow coal seams. Silica dust is produced when miners break through the rock surrounding those seams.

The new rule,which was published April 18, creates a limit for levels of silica dust exposure and requires mining companies to actively monitor it. The new limit, 50 micrograms per cubic meter of air, is half of what is currently allowed, and has long been called for by the National Institute for Occupational Safety and Health, along with others.

But the rule largely relies on mining companies themselves to measure the quality of air in their mines and to alert regulators when silica dust levels exceed the new limit.

This is in part, Bates said, because the Mine Safety and Health Administration simply doesn’t have the funding to regularly sample air in mines across the country. Still, she likened the rule to asking drivers to enforce the speed limit.

“How often is a driver going to call the police and say, ‘hey, you know, I’m really sorry,’” Bates said. “‘I was going 75 in a 55. Go ahead and write me a ticket.’”

“But the fact that there’s something in place that we can fight with and we can use is huge,” Bates said. “Every time we find a violation, we can point back to this rule … Before, when we found that there were high levels of silica dust in our mines, there was nothing we could do.”

Rebecca Shelton is the director of policy of the Appalachian Citizens Law Center in Whitesburg, a group that has advocated for silica dust regulation.

“I got into this work through being from Kentucky, really,” Shelton said. “Everyone knows someone who has black lung, it seems. I think that’s something that is a fairly foreign or detached concept for most people in this country: that somebody in your family has a disease related to their occupation and occupational hazards.”

Like Bates, Shelton believes the rule is a positive step, but is concerned about enforcement.

And Shelton worries that the Mine Safety and Health Administration may not be up to the task of enforcement, even when companies do report silica dust levels above the established limit.

“Something we’ve been pushing for for a long time is for MSHA just to have the funding they need to hire more inspectors,” Shelton said. “There has been a decline in the number of inspectors, especially for the coal mining industry over the last decade … It makes it harder to do more rigorous enforcement.”

A November 2023 report published by the US Office of Inspector General found that MSHA was struggling to keep up with its work enforcing regulations. When announcing the final rule, Su noted that the agency was hiring an additional 270 inspectors to help enforce it.

The rule will take effect in one year for coal mines, and in two years for all other types of mines.

“I think we are going to have to figure out how we are going to watchdog the implementation of this rule, and find our path forward there,” Shelton said. She added that the lack of specified thresholds for penalties for mine operators found in violation of the rule would add to the difficulties of enforcement.

Willie Dodson, a field coordinator with Appalachian Voices, a group that works closely with Shelton’s, said in a statement that one major source of concern was that the rule does not require mine companies to close their mines when silica dust levels are too high.

“Without strong enforcement mechanisms, and without any prohibition against miners being forced to work in excessive dust, I’m not sure that this will actually reduce levels of black lung,” Dodson said in a statement. “This rule gives MSHA too much discretion where there should be automatic enforcement actions.”

The rule gives MSHA? the authority to take a number of actions if silica dust limits exceed the new limit, from financial penalties to shutting down unsafe mines.

A spokesperson for the Department of Labor told the Capital-Star that it is willing to take all available actions if a mining company does not take action “in a reasonable period of time” to lower silica dust levels.

Sam Petsonk, a West Virginia lawyer and advocate for mine safety, was optimistic about the prospects of enforcement. He believes the rule’s language is stricter than other similar regulations that had come before it.

“This rule is a stronger dust protection rule than MSHA ever promulgated before when it comes to the stringency of the limit and the tolerance for violations,” he said.

Petsonk believes the language of the rule will allow MSHA to take action against coal companies much more quickly than previous rules limiting other harmful airborne substances in mines. As an example, he pointed to a 2014 rule regulating coal dust levels that generally required the collection of multiple dangerous air samples before regulators could act. This rule, he said, would only require one.

Petsonk also praised MSHA for adding language to the rule requiring mining companies to regularly come up with plans for how they will limit silica dust exposure and submit those to regulators.

“This rule acknowledges that the operator has to engineer a better way of avoiding extreme silica exposure,” Petsonk said. “That’s a real innovation. That’s something that’s new in this rule.”

But Petsonk understands that enforcement of the rule will come down to who is in charge of the agency. For the moment, he believes the current administration is committed to enforcing the rule to the fullest extent possible.

“I always believe in the adage, trust, but verify,” Petsonk said. And he believes that the current rule, along with what he saw as the agency’s willingness to adapt it in light of criticism received during its public comment period, is at least the start of verification.

Bates, the UMWA spokesperson, is less certain than Petsonk. She says the union is concerned that the rule could allow mining to continue even in mines where excessive levels of silica dust are measured. While it requires mining companies to take corrective actions when silica levels are high, one such action it notes is requiring miners to wear appropriate respirators. The union would prefer work in a mine where levels were too high be stopped altogether until it can continue safely.

“We strongly advocated for the agency to not require respirators when the miners were exposed to levels of silica that are above the exposure limit,” Bates said. “Honestly, we believe that if there is overexposure the work should stop completely.”

Bates pointed to one other aspect of the rule she found troubling. In the final published rule, MSHA included studies on the potential efficacy of the new, 50 micrograms per cubic meter of air silica dust limit. The studies also looked at how effective an even lower limit of 25 micrograms per cubic meter would be.

Generally speaking, those studies found that the lower limit would expose only half as many miners to what it deemed excessive risk for disease. But that’s not where the agency landed.

“It’s absolutely not a surprise,” Bates said. “At the end of the day, the most important thing is the miners’ lives. It is a shame that 30- and 40-year-olds are contracting this disease.”

To Bates and others, the knowledge that stricter regulations would result in fewer miner deaths is only proof that there’s more work to be done.

This article is republished from the Pennsylvania Capital-Star, a sister publication of the Kentucky Lantern and part of the nonprofit States Newsroom network of free news services.