The Occupational Safety and Health Administration and the Mine Safety and Health Administration (known as OSHA and MSHA, respectively) are two federal agencies with similar missions of regulating and enforcing workplace safety in the United States. But that doesn’t mean that the relationship between the two entities should be viewed with a “to-may-to, to-mah-to” level of simplicity.
Every environment, health, and safety (EHS) professional is familiar with OSHA and knows it by acronym alone, very much like the U.S. Environmental Protection Agency (EPA). While MSHA is more narrowly focused on specifically the mining industry and is perhaps a bit less widely known, its existence is crucial because of the uniquely high risks and prevalent hazards related to mining.
OSHA and MSHA: History and Authority
OSHA was created in 1970 under the Occupational Safety and Health (OSH) Act, which covers most private sector companies and their workforces (as well as some public employers and their workers) across all U.S. states and in many territories and jurisdictions including the District of Columbia, Puerto Rico, American Samoa, Guam, and others. Structured as a part of the U.S. Department of Labor (DOL), OSHA’s role is to ensure the health and safety of the American workforce by setting and enforcing standards as well as providing education, training, and compliance assistance.
While the first federal mine safety statute was passed in 1891, MSHA itself was much more recently established in 1977 under the Federal Mine Safety and Health Act and also has authority under the Mine Improvement and New Emergency Response (MINER) Act of 2006, an expansion of safety requirements and rules for those in the mining industry. Like OSHA, MSHA develops and enforces workplace safety and health rules as well as provides education and assistance, but their actions and activities are specifically related to mining.
So, how do these two agencies intersect, and when does one or the other have authority in a given situation?
The determination of authority between OSHA and MSHA is outlined in an interagency agreement that has been in effect since 1979. As one might expect given their respective missions and purposes, OSHA has much broader authority than MSHA, as it covers far more industries, employers, and workers. MSHA’s standards and authority strictly cover those workers “engaged in underground and surface mineral extraction (mining), related operations, and preparation and milling of the minerals extracted.” In fact, if there is a hazard or incident unrelated to mining at an organization covered by the Federal Mine Safety and Health Act (for example, hazards related to work at a health clinic or hospital co-located on a mine site) for which MSHA has no specific standard, then it is OSHA that has jurisdiction over the case.
However, the two entities also engage in cooperative actions. They are permitted to issue joint rulemaking when appropriate as well as coordinate cooperative training, interagency technical assistance, and shared facility use.
Spotlight on the Mining Industry
One may well ask: With such a limited scope and authority, why does MSHA even exist? In short, it is because mining as an individual industry remains an extremely high-risk endeavor, one with myriad physical hazards and short- and long-term health effects threatening its workers.
In 2019, there were 24 mining fatalities in the U.S. This marked only the fifth year in MSHA’s entire 43-year history that recorded fatalities were below 30. As recently as 2010 it was estimated that, on average, 50 to 60 coal miners die each year across the nation.
Immediate physical hazards are not the only danger facing the mining industry. Long-term illness is unfortunately common and has only gotten worse in recent years. A November 2020 report from the DOL’s Office of Inspector General (OIG) addressed the pervasive hazard posed by respirable crystalline silica in the mining industry and directed MSHA to make improvements to its efforts to protect miners.
Among the findings outlined in the OIG report were:
More than three times as many coal miners were identified as having black lung disease from 2010 to 2014 compared to 1995 to 1999, and evidence points to respirable crystalline silica as the reason for this increase.
MSHA has not sufficiently protected coal miners from exposure to respirable crystalline silica, as evidenced by the fact that MSHA's current silica exposure limit is out of date.
MSHA’s enforcement on the matter is without teeth, as the agency cannot issue fines for excess silica exposure alone. Instead, MSHA’s exposure limit for silica is tied to its exposure limit for respirable coal mine dust—so if a worker’s exposure to silica exceeds the limit but not his or her exposure to coal dust, MSHA cannot issue a citation or fine.
However, things are soon likely to change when it comes to mine safety.
New Administration Could Mean New Mine Safety Regulations
As we’ve previously written, the Biden administration will be a new chapter for EHS, and it’s expected that we will see a more proactive stance on matters affecting health and safety rules and enforcement, which stands in contrast to the Trump administration’s agenda that prioritized deregulation and compliance assistance in lieu of strict enforcement.
This new regulatory environment will hold true for the mining industry. Among the possibilities for imminent action is a departure from the current approach to respirable crystalline silica, which is based solely on sampling the air in mines (incidentally, the OIG pointed out in its report that current sampling protocols aren’t very protective anyway). Instead, up to date limits would be set and enforced, with the adoption of mining practices that would suppress silica dust, effectively capping the amount of dust allowed into the air where miners are working.
Cover All Your Bases
While OSHA is more recognizable and has wider authority, MSHA is essential for protecting the health and safety of those who work in a high-risk industry. And with so much uncertainty in the regulatory sphere right now, it’s likely that both agencies will play a big role in EHS for the foreseeable future. That’s why it’s important to have all your compliance bases covered—especially if you work in the mining industry.
Dakota Software’s curated regulatory database can help you keep up with developments at OSHA, with special modules that can keep users informed about the latest proposed rules and changes at MSHA. With all of your bases covered, you can be confident that your organization is protected from citations while also protecting its workers from injury and illness.
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