MSHA Proposed Rule
Diesel Particulate Matter Exposure of Underground Metal and Nonmetal Miners [09/25/2002]
[PDF Version]
Volume 67, Number 186, Page 60199-60202
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 57
RIN 1219-AB29
Diesel Particulate Matter Exposure of Underground Metal and
Nonmetal Miners
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: MSHA is initiating rulemaking to amend certain provisions of
its existing health standard entitled, ``Diesel Particulate Matter
Exposure (DPM) of Underground Metal and Nonmetal Miners,'' published in
the Federal Register on January 19, 2001 (66 FR 5706), and amended on
February 29, 2002 (67 FR 9180). This rulemaking is part of a settlement
agreement reached in response to a legal challenge to the January 19,
2001 DPM standard. Accordingly, the scope of this rulemaking will be
limited to the terms of the settlement agreement that MSHA shared with
the public in its recent Federal Register document (final rule; stay of
effectiveness notice) of July 18, 2002 (67 FR 47296). MSHA will propose
to revise Sec. 57.5060, limit on concentration of DPM; Sec. 57.5061,
compliance determinations; and, Sec. 57.5062, diesel particulate
matter control plan. In addition, MSHA will address technological and
economic feasibility for the underground metal and nonmetal mining
industry to comply with revised interim and final DPM concentration
limits. Some mine operators have begun to implement control technology
on their underground diesel-powered equipment as a result of the
January 19, 2001 final rule. Therefore, MSHA requests relevant
information on current experiences with availability of control
technology, installation of control technology, effectiveness of
control technology to reduce DPM levels, and cost implications of
compliance with the current DPM standard. MSHA emphasizes the
significance of obtaining this information from mine operators.
The existing rulemaking record, including the risk assessment for
the January 19, 2001 standard, will be incorporated into this new
rulemaking record. Commenters may submit evidence of new scientific
data related to the health risk to underground metal and nonmetal
miners from exposure to DPM.
DATES: Comments, suggestions and information on the advance notice of
proposed rulemaking (ANPRM) must be received on or before November 25,
2002.
ADDRESSES: Comments on the ANPRM may be transmitted by electronic mail,
fax, or mail.
Comments by electronic mail must be clearly identified as such and
sent to comments@msha.gov.
Comments by fax must be clearly identified as such and sent to:
MSHA, Office of Standards, Regulations and Variances, 202-693-9441.
Send comments by mail to: MSHA, Office of Standards, Regulations
and Variances, Room 2352, 1100 Wilson Boulevard, Arlington, VA 22209-
3939.
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Director; Office of
Standards, Regulations, and Variances; MSHA, 1100 Wilson Boulevard,
Room 2313, Arlington, Virginia 22209-3939. Mr. Nichols can be reached
at nichols-marvin@MSHA.gov, 202-693-9440, or 202-693-9441 (fax).
SUPPLEMENTARY INFORMATION:
I. Background
On January 19, 2001, MSHA published a final rule addressing diesel
particulate matter exposure of underground metal and nonmetal miners
(66 FR 5706). The final rule established new health standards for
underground metal and nonmetal mines that use equipment powered by
diesel
[[Page 60200]]
engines. The effective date of the rule was listed as March 20, 2001.
On January 29, 2001, AngloGold (Jerritt Canyon) Corp. and Kennecott
Greens Creek Mining Company filed a petition for review of the final
rule in the District of Columbia Circuit Court of Appeals. On February
7, 2001, the Georgia Mining Association, the National Mining
Association, the Salt Institute, and MARG Diesel Coalition filed a
similar petition in the Eleventh Circuit. On March 14, 2001, Getchell
Gold Corporation petitioned for review of the rule in the District of
Columbia Circuit. The three petitions have been consolidated and are
pending in the District of Columbia Circuit. The United Steelworkers of
America (USWA) has intervened in the litigation.
While these challenges were pending, the AngloGold petitioners
filed with MSHA an application for reconsideration and amendment of the
final rule and to postpone the effective date of the final rule pending
judicial review. The Georgia Mining petitioners similarly filed with
MSHA a request for an administrative stay or postponement of the
effective date of the rule.
On March 15, 2001, MSHA delayed the effective date of the rule
until May 21, 2001, in accordance with a January 20, 2001 memorandum
from the President's Chief of Staff (66 FR 15032). The delay was
necessary to give Department of Labor officials the opportunity for
further review and consideration of new regulations. On May 21, 2001
(66 FR 27863), MSHA published a notice in the Federal Register delaying
the effective date of the final rule until July 5, 2001. The purpose of
this delay was to allow the Department of Labor the opportunity to
engage in further negotiations to settle the legal challenges to this
rule.
II. Outcome of First Partial Settlement
As a result of a partial settlement agreement with the litigants,
MSHA published two documents in the Federal Register on July 5, 2001
addressing the January 19, 2001 DPM final rule. One document (66 FR
35518) delayed the effective date of Sec. 57.5066(b) regarding the
tagging provision of the maintenance standard; clarified the effective
dates of certain provisions of the final rule; and included correction
amendments.
The second document (67 FR 35521) proposed a rule to clarify Sec.
57.5066(b)(1) and (b)(2) of the maintenance standards and to add a new
paragraph (b)(3) to Sec. 57.5067 regarding the transfer of existing
equipment from one underground mine to another underground mine. MSHA
finalized these changes to the January 19, 2001 rule and published them
in the Federal Register on February 27, 2002, (67 FR 9180). The final
rule was effective on March 29, 2002.
As a result of the partial settlement agreement, MSHA also agreed
to conduct joint sampling with industry and labor at 31 underground
metal and nonmetal mines to determine existing concentration levels of
DPM; to assess the performance of the SKC submicron dust sampler with
the NIOSH Method 5040; to assess the feasibility of achieving
compliance with the standard's concentration limits at the 31 mines;
and, to assess the impact of interferences on samples collected in the
metal and nonmetal underground mining environment before the limits
established in the final rule become effective. Sampling and data
analyses are completed, and MSHA is in the process of developing the
final report. MSHA will include the final report in this rulemaking
record.
III. Outcome of Second Partial Settlement
Settlement negotiations continued on the remaining unresolved
issues in the litigation. On July 15, 2002, the parties signed an
agreement that is the basis for this advance notice of proposed
rulemaking.
On July 18, 2002, MSHA published a notice in the Federal Register
(67 FR 47296) announcing that the following provisions of the final
rule as published on January 19, 2001 (66 FR 5706) would become
effective on July 20, 2002:
(a) Sec. 57.5060(a), addressing the interim concentration limit of
400 micrograms of total carbon per cubic meter of air;
(b) Sec. 57.5061, addressing compliance determinations; and
(c) Sec. 57.5071, addressing environmental monitoring. MSHA also
announced that the following provisions of the final rule would
continue in effect:
(a) Sec. 57.5065, Fueling and idling practices;
(b) Sec. 57.5066, Maintenance standards;
(c) Sec. 57.5067, Engines;
(d) Sec. 57.5070, Miner training; and
(e) Sec. 57.5075, Diesel particulate records, as they relate to
the requirements of the rule that are in effect on July 20, 2002.
MSHA announced that it was staying the effectiveness of the
following provisions pending completion of further rulemaking to
address these issues:
(a) Sec. 57.5060(d), permitting miners to work in areas where the
level of diesel particulate matter exceeds the applicable concentration
limit with advance approval from the Secretary;
(b) Sec. 57.5060(e), prohibiting the use of personal protective
equipment to comply with the concentration limits;
(c) Sec. 57.5060(f) prohibiting the use of administrative controls
to comply with the concentration limits; and
(d) Sec. 57.5062, addressing the control plan.
Finally, MSHA published in the same notice the terms of the DPM
settlement agreement and announced its intentions to propose specific
changes to the final DPM rule as discussed below.
IV. Summary of Issues To Be Addressed in the Proposed Standard
MSHA is including the following questions to facilitate public
comment. The Agency invites comments on all aspects of the following
issues:
1. Section 57.5060(a) and (b), Limit on concentration of diesel
particulate matter.
The existing provisions include an interim concentration limit that
restricts total carbon (TC) to 400 micrograms per cubic meter of air,
and a final concentration limit of 160 micrograms per cubic meter of
air by January 20, 2006. Diesel particulate matter consists of a core
of elemental carbon (EC), other carbon-containing compounds, and many
other components. There is no appropriate sampling method for diesel
particulate matter itself. As a result, a substitute or surrogate must
be used for DPM. MSHA agreed to propose to change the surrogate, or
indicator of DPM, from (TC) to elemental carbon (EC) for both the
interim and final limits. MSHA also agreed to propose that a single
personal sample of a miner's exposure would be an adequate basis for
all compliance determinations. Furthermore, MSHA agreed to propose the
current hierarchy of controls that MSHA applies in its other metal and
nonmetal exposure-based health standards for abating violations as
further discussed in this notice. MSHA seeks information, data, and
comments on the following:
(a) What are the appropriate interim and final limits if EC is the
surrogate?
(b) What error factor should MSHA use for determining noncompliance
on an EC standard?
(c) Are there any interferences in the environment of an
underground metal and nonmetal mine that would preclude personal
sampling with the impactor when EC is used as the surrogate for DPM?
(d) Is a field blank required if EC is used as the surrogate? (A
field blank is a control device to account for
[[Page 60201]]
background interferences from manufacturing and storage of the filter).
2. Section 57.5060(c) addresses application and approval
requirements for an extension of time in which to reduce the
concentration of DPM to the final limit.
The existing provision allows mine operators to apply for
additional time to come into compliance with the final concentration
limit of 160 micrograms of TC per cubic meter of air due to
technological constraints. MSHA agreed to propose to adapt this
provision to the interim concentration limit as well, to include
consideration of economic feasibility, and to allow for annual renewals
of such special extensions, upon application to and approval by the
Secretary.
(a) What circumstances would necessitate an extension of time to
come into compliance?
(b) What should be the duration of the extension?
(c) Should MSHA allow more than one extension?
(d) What actions should mine operators be required to take to
minimize DPM exposures if they are operating under an extension?
3. Section 57.5060(d) addresses certain exceptions to the
concentration limit.
The existing provision permits miners engaged in specific
activities, such as inspection, maintenance, or repair activities, to
work in concentrations of DPM that exceed the interim and final limits,
with advance approval from the Secretary.
(a) Would this provision be necessary if MSHA includes in the final
rule its current hierarchy of controls for its other exposure-based
health standards for metal and nonmetal mines?
(b) What would be the impact of removing this provision?
4. Section 57.5060(e) prohibits use of personal protective
equipment to comply with the concentration limits; and Sec. 57.5060(f)
prohibits use of administrative controls to comply with the
concentration limits.
MSHA agreed to propose to amend these provisions to require mine
operators to establish, use, and maintain all feasible engineering
control methods, consistent with the Agency's long-standing enforcement
policy for its other existing exposure-based health standards
applicable to metal and nonmetal mines. Therefore, MSHA will propose to
require mine operators to supplement feasible engineering and
administrative control methods with personal protective equipment, in
the event that controls do not reduce the concentration level to the
required limit, or are not feasible, or do not produce significant
reductions in DPM exposures. MSHA also agreed to consider the
advisability of requiring periodic application to the Secretary before
respirators could be used. MSHA will propose to prohibit the practice
of rotation of employees as an administrative control for compliance
with the DPM standard.
(a) Currently, there is no approved respirator for use in
protecting miners exposed to DPM atmospheres. If MSHA includes
requirements for some form of respiratory protection, what type of
respirators would be protective of miners? What are their
specifications?
(b) Should MSHA propose to require mine operators to implement a
written respiratory protection program when miners must wear
respiratory protection?
(c) Should MSHA require mine operators to apply to the Secretary
for approval to use respiratory protection? Should the application be
in writing? What conditions should MSHA require mine operators to meet
before approval is granted to use respirators?
(d) Should MSHA propose to require mine operators to implement a
written administrative control plan when they use administrative
controls to reduce miners' exposures to the required limit?
5. Section 57.5061(b) addresses how MSHA will collect and analyze
samples for compliance purposes.
MSHA agreed to propose to change the DPM surrogate from TC to EC.
Therefore, MSHA would propose to delete the reference to analyzing the
samples for the amount of ``total carbon'' included in this paragraph
and propose to insert ``elemental carbon.''
6. Section 57.5061(c) provides for MSHA to conduct personal, area,
and occupational sampling for compliance determinations.
MSHA agreed to propose a revision to this paragraph to state that
the Agency would conduct personal sampling only for compliance
determinations for the interim and final DPM standards. As a result,
MSHA would propose to revise this paragraph to delete the references to
``area'' and ``occupational sampling'' for compliance determinations.
(a) What would be the cost implications for mine operators to
conduct personal sampling of miners' DPM exposures if EC is the
surrogate?
(b) What experience do mine operators have with DPM sampling and
analysis?
(c) Is there experience with DPM sampling in other industries and
other countries?
7. Section 57.5062 addresses the diesel particulate control plan.
The existing MSHA standard includes requirements for implementing a
DPM control plan. MSHA agreed to propose revisions to these
requirements. The settlement agreement does not include any specifics
on the language of a proposal.
(a) How should the control plan be changed?
(b) What is an appropriate duration for a control plan?
(c) Should a single violation trigger implementation of a control
plan? If not, what is an appropriate trigger?
(d) What roles should respiratory protection and administrative
controls have under a control plan?
(e) Are there regulatory alternatives to the existing control plan
requirement that are at least as protective of miners, such as
requiring a written administrative control plan and/or a written
respiratory protection plan?
(f) Since MSHA is proposing to include its long-standing hierarchy
of controls for compliance with the revised standard, is there any
benefit from retaining the control plan?
(g) Should MSHA delete the control plan requirements--why or why
not?
8. Technological and economic feasibility.
New information on the technological and economic feasibility of
current control technology was presented to MSHA following promulgation
of the January 19, 2001 standard. MSHA intends to evaluate this new
information in conjunction with compliance changes that would result
from a proposed standard.
(a) What experience do you have modifying ventilation systems to
reduce miners' exposure to DPM?
(b) What were the costs to mine operators for auxiliary fans,
booster fans, flexible ducts, or major ventilation upgrades necessary
to meet the interim concentration limit?
(c) What has been the experience of mine operators with
retrofitting existing diesel-powered equipment, especially in the range
with less than 50 hp, as well as equipment that has greater than 250
hp, with DPM control devices? What adjustment did mine operators have
to make to DPM control devices before there were reductions in DPM
levels?
(d) What are the engineering costs associated with retrofitting?
(e) What technical assistance should MSHA provide to mine operators
in retrofitting DPM control devices or evaluating a mine's ventilation
system, or filtration systems in environmental cabs?
(f) Are there circumstances where mine operators have had to change
an engine model to accommodate DPM
[[Page 60202]]
control devices? What were the costs of the engine models?
(g) How much did control devices cost for different horse-powered
engines?
(h) Did mine operators have to modify the exhaust system to apply
the DPM control? What were the costs for doing so?
(i) What are the advantages, disadvantages, and relative costs of
different DPM control devices?
(j) What types of DPM control devices are commercially available
and how much do these devices cost?
(k) What are the engineering costs of the DPM control devices?
(l) What current reductions in EC levels are mine operators
experiencing from having installed DPM control devices? What is the
experience with filtration efficiencies?
(m) What has been the experience of mine operators with the useful
life of DPM filters?
(n) Is there any information available with DPM control filters in
non-mining industries or in other countries?
(o) What has been the experience of mine operators with DPM
filters? Did filters fail or did they perform as the manufacturer
predicted? If they failed, what were the causes of filter failure? What
could be done to prolong the life of DPM filters?
(p) Do mine operators have any technical data on their experience
with using cabs with filtered breathing air?
(q) Have you experienced increases in NO2 when using any
of the following: (1) A base-metal catalyzed filter; (2) a non-
catalyzed filter; or (3) platinum-based catalyzed filter?
(r) What effect do high altitudes have on the ability of the DPM
control device to reduce DPM exposures?
(s) What costs did mine operators incur for filters that were
regenerated off board?
(t) What costs did mine operators incur for filters that were
regenerated on board?
(u) Would active regeneration be feasible for your mine; such as
off-board filter regeneration in an oven, or on-board electrical
regeneration?
(v) What are the costs to mine operators for new engines and
venting for filter ovens?
(w) Would fuel additives used to facilitate regeneration be
feasible?
(x) Are there any significant technologies for controlling DPM when
EC is the surrogate?
9. Paperwork Burden Issues.
What paperwork and other costs will you incur if changes are made
to the DPM standard, particularly development of a written program for
use of administrative controls, use of respiratory protection, and for
development of a control plan?
Dated: September 20, 2002.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 02-24370 Filed 9-20-02; 4:22 pm]
BILLING CODE 4510-43-P
