Knowing when, how, and why to challenge citations stemming from air sampling can save your site not only current penalties but also potential future litigation.

by Daniel J. Pubal

When the Mine Safety and Health Administration (MSHA) or the Occupational Safety and Health Administration (OSHA) conducts air sampling, the results for the site can include short-term abatement problems as well as long-term liability implications. Employees, and even their family members, can sometimes use those results to support claims for disability and negligence against operators. Often times, there are ways to reduce this potential liability at the initial sampling stage, when agencies and the laboratories they use have been known to make significant mistakes.

When an agency decides to perform air sampling, take steps to protect your rights. Involve your most knowledgeable safety managers and engineers in the process. Insist on side-by-side sampling by your independent industrial hygienist. Take the same photos and/or videos as the agency. Don’t deviate from normal conditions by arbitrarily making changes in production activities. Ensure engineering controls are properly set up and working up to specifications.

The government’s overexposure numbers may appear black and white, but those numbers may actually be shades of gray because they are not backed by good science and proper sampling techniques. There are limitations in sampling equipment and laboratory processes. Not all overexposures can withstand close scrutiny. Knowing the limitations of sampling can help determine when and how to challenge MSHA and OSHA overexposures.

MSHA mandates in 56/57.5002 that mine operators survey for dust, mist, fume, and gases. An initial survey of those operations with air contaminants is essential to avoid citations. Don’t wait for MSHA to vigorously pursue air sampling at your mining or milling sites. If you encounter overexposures, immediately take steps to protect workers. It is not enough to simply make respirators available for use. An operator must develop a respiratory protection program and mandate the use of respirators while evaluating and implementing engineering controls.

Before donning a respirator (and annually thereafter), employees must have medical monitoring, fit testing, and training. In the case of silica, provide medical examinations for employees who may be exposed to respirable crystalline silica, as recommended by the National Institute for Occupational Safety and Health (NIOSH), and have X-rays read by a specialist in dust diseases. NIOSH recommends more frequent X-rays for workers with more years of exposure. When required by 30 CFR 56/57.5005, a respirator program must contain all of the elements of the ANSI Z88.2-1969 Practices for Respiratory Protection. If MSHA’s survey finds an overexposure, and there is no respiratory protection program (or if numerous deficiencies exist), then expect significantly higher penalties.