The Honorable Julie A. Su and the Honorable Christopher J. Williamson, U.S. Department of Labor (July 20, 2023)

Summary

The House Committee on Small Business writes to Acting Secretaries Su and Williamson to inquire about the recent proposed rule change to the respirable silica dust protection standards in mining. The letter states that it appears the rule could have profound impacts on small mines and operators, and that the Department of Labor and the Mine Safety and Health Administration (MSHA) may not have properly considered small entities during this rulemaking process. It requests information no later than August 3, 2023, including what impact the rule would have on entrepreneurs seeking to open a new mine and why MSHA did not select as its primary proposal an alternative that would reduce the cost of the rule on small businesses by nearly 30 percent.

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Full text

                                                July 20, 2023

The Honorable Julie A. Su                                   The Honorable Christopher J. Williamson
Acting Secretary                                            Assistant Secretary of Labor
U.S. Department of Labor                                    U.S. Mine Safety and Health Administration
200 Constitution Ave. NW                                    201 12th St. S. Suite 401
Washington, D.C. 20210                                      Arlington, VA 22202


Dear Acting Secretaries Su and Williamson:

       The House Committee on Small Business writes to inquire about the recent proposed rule
change to the respirable silica dust protection standards in mining. This proposed rule would set
the permissible respirable silica limit for miners at 50 µg/m3, averaged over an 8-hour period.1 It
appears that this rule could have profound impacts on small mines and operators, and that the
Department of Labor and the Mine Safety and Health Administration (MSHA) may not have
properly considered small entities during this rulemaking process.

        The increased standards described in this rule would force many small mines to
implement new engineering and administrative controls to achieve the air quality benchmarks.2
These controls include installing new air vents, using wetting agents, installing machine mounted
dust collectors, and installing control booths to enclose operators.3 These additional requirements
not only compromise the operations of existing small mines, but also increases material and
compliance costs for entrepreneurs seeking to open a new mine.

       It is important for agencies to examine small businesses interests—which make up 99.9
percent of all businesses in the United States—when passing any new rule. America’s small
businesses deserve to have their voices heard and considered. We therefore request the following
information as soon as possible but no later than August 3, 2023:

    1. What impact would this rule have on entrepreneurs seeking to open a new mine?

    2. In its Initial Regulatory Flexibility Analysis, MSHA proposed an alternative rule which
       would accomplish the department’s goals while reducing the cost of this rule on small


1
  Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection, 88 Fed. Reg.
44852, 44853 (2023) (to be codified at 30 CFR 56-57, 60, 70-72, 75, 90).
2
  Id. at 44905
3
  Id.
The Honorable Julie A. Su and Christopher J. Williamson
July 20, 2023
Page 2 of 3

        businesses by nearly 30 percent. Why did the MSHA not select this option as its primary
        proposal?

    3. This rule justifies not permitting mines to rely on Powered Air Purifying Respirators
       (PAPRs) because “respiratory protection should only be relied upon as an exposure
       control measure in limited situations and on a temporary basis.”4 During the multi-year
       COVID-19 Pandemic, the CDC asserted that the respiratory protection provided by cloth
       and N-95 masks was an effective, reliable, and useful tool in mitigating the inhalation and
       spread of the SARS-CoV-2 virus.5 Why would respiratory protection used by untrained
       civilians be effective at preventing the inhalation of a virus, which measured just .3
       microns, but superior respiratory protection, such as PAPRs, be ineffective at preventing
       the inhalation of silica dust particles, which are up to ten times larger?

    4. What specific acts does MSHA expect small mines to undertake that will increase their
       compliance costs?

    5. Table IV-3 within the proposed rule indicates that stone cutting operators were at nearly
       twice the risk of severe silica inhalation when compared to any other mining operator.6
       Why then, does this rule not account for variations such as the location of the mine, or the
       material being mined, when creating the assessment and record keeping standards?

       To schedule the delivery of your response or ask any related follow-up questions, please
contact Committee on Small Business Majority Staff at (202) 225-5821. The Committee on
Small Business has broad authority to investigate “problems of all types of small business” under
House Rule X. Thank you in advance for your cooperation with this inquiry.

                                                  Sincerely,




_________________________                                    _________________________
Roger Williams                                               Pete Stauber
Chairman                                                     Member of Congress
Committee on Small Business                                  Committee on Small Business



4
  Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection, 88 Fed. Reg.
44852 (2023) (to be codified at 30 CFR 56-57, 60, 70-72, 75, 90).
5
  Types of Masks and Respirators, CTR. FOR DISEASE CONTROL & PREVENTION (May 11, 2023).
6
  Elham Rahimi, E, et al. INVESTIGATION OF RESPIRABLE COAL MINE DUST (RCMD) AND RESPIRABLE CRYSTALLINE
SILICA (RCS) IN THE U.S. UNDERGROUND AND SURFACE COAL MINES. Sci. Rep. (Jan. 31, 2023); Lowering Miners’
Exposure to Respirable Crystalline Silica and Improving Respiratory Protection, 88 Fed. Reg. 44852, 44866 (2023)
(to be codified at 30 CFR 56-57, 60, 70-72, 75, 90).
The Honorable Julie A. Su and Christopher J. Williamson
July 20, 2023
Page 3 of 3



_________________________                        _________________________
Dan Meuser                                       Jake Ellzey
Member of Congress                               Member of Congress
Committee on Small Business                      Committee on Small Business




_________________________
Aaron Bean
Member of Congress
Committee on Small Business


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