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Air Quality, Chemical Substances, and Respiratory Protection Standards [11/19/2004]
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Volume 69, Number 223, Page 67681-67692
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 56, 57, 58, 70, 71, 72, 75 and 90
RIN 1219-AA48
Air Quality, Chemical Substances, and Respiratory Protection
Standards
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Withdrawal of proposed rule.
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SUMMARY: The Mine Safety and Health Administration (MSHA) is
withdrawing the remaining phases of its 1989 ``Air Quality, Chemical
Substances, and Respiratory Protection'' proposed rule, and is
providing further explanation of its September 26, 2002, Federal
Register document regarding withdrawal of the proposed rule. MSHA's
2002 decision to withdraw the remaining phases of the proposed rule was
based on adverse case law, a change in Agency priorities, and the
staleness of the rulemaking record. Although the September 26, 2002,
document was intended to withdraw the rule as of that date, the U.S.
Court of Appeals for the District of Columbia Circuit found that the
document provided inadequate explanation of the Agency's decision to
terminate the rulemaking. The court ordered MSHA to either proceed with
the Air Quality rulemaking or give a reasoned account of its decision
not to do so. This document provides a reasoned account of MSHA's
decision to terminate the rulemaking and to withdraw the remaining
phases of the Air Quality rule.
DATES: The proposed rule published on August 29, 1989 (54 FR 35760) is
withdrawn as of November 19, 2004.
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director,
Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson
Boulevard, Room 2313, Arlington, Virginia 22209-3939,
Nichols.Marvin@dol.gov, (202) 693-9440 (telephone), or (202) 693-9441
(facsimile). This document is available in alternative formats, such as
large print and electronic format, and can be accessed on MSHA's
Internet site, http://www.msha.gov, at the ``Statutory and Regulatory
Information'' link.
SUPPLEMENTARY INFORMATION:
A. Rulemaking Background
On August 29, 1989, MSHA proposed a rule, 54 FR 35760, that would
have, among other things, established permissible exposure limits
(PELs) for substances that the Agency believed might adversely affect
the health of miners; required control of exposure to such substances;
prescribed methods and frequency of monitoring to evaluate exposure;
and revised requirements for respiratory protection programs for metal
and nonmetal mines and established similar requirements for coal mines.
54 FR 35760, 35761 (August 29, 1989). Additionally, the proposed rule
included provisions addressing carcinogens, asbestos construction work,
dangerous atmospheres, medical surveillance, prohibited areas for food
and beverages, and abrasive blasting and drill dust control. Of the
more than 600 chemical substances for which MSHA sought to establish
PELs, 165 of those substances would have been regulated for the first
time. Because of the scope and complexity of the Air Quality rule, MSHA
divided the rulemaking provisions into three groups or ``phases.'' The
Agency set separate comment periods for each of the three groups and
announced that it would hold three sets of public hearings, with each
set addressing one group of the proposed rule's provisions.
The first group of provisions included abrasive blasting and drill
dust control; dangerous atmospheres; exposure monitoring; prohibited
areas for food and beverages; and PELs for nitrogen dioxide, nitric
oxide, carbon monoxide, and sulfur dioxide. Two public hearings were
held for this group of provisions, the first on June 4, 1990, in
Denver, Colorado, and the second on June 7, 1990, in Coraopolis,
Pennsylvania. The comment period for this group of provisions closed on
March 2, 1990.
[[Page 67682]]
The second group of provisions included carcinogens; asbestos
construction work; means of controlling exposure to hazardous
substances; respiratory protection; and medical surveillance. Two
public hearings were held on this group of provisions, the first on
October 12, 1990, in Washington, DC and the second on October 19, 1990,
in San Francisco, California. The comment period for the second group
of provisions closed on June 29, 1990.
The third and final group of provisions included all permissible
exposure limits other than nitrogen dioxide, nitric oxide, carbon
monoxide, and sulfur dioxide. Two public hearings were held on these
PELs, the first on March 19, 1991, in Denver, Colorado, and the second
on March 26-27, 1991, in Washington, DC. The comment period for this
group of provisions closed on December 14, 1990. Following the public
hearings, the rulemaking record remained open until August 30, 1991, to
permit interested persons to submit additional statements, data, and
information on any provision of the proposed rule.
In 1994, MSHA adopted one provision of the proposed rule as a final
rule. ``Air Quality: Health Standards for Abrasive Blasting and Drill
Dust Control,'' 59 FR 8318 (February 18, 1994). For the reasons set
forth in this document, the amount of additional work performed on the
remainder of the proposed rule between 1994 and 2002 was somewhat
limited.
In September 2002, MSHA decided to withdraw the remainder of its
Air Quality proposed rule from the Regulatory Agenda. 67 FR 60611
(September 26, 2002). By way of explanation, the Agency said that its
decision to withdraw the proposed rule ``was the result of changes in
Agency priorities and the possible adverse effect * * * of the decision
in AFL-CIO et al. v. OSHA,'' 965 F.2d 962 (11th Cir. 1992), in which
the U.S. Court of Appeals for the Eleventh Circuit invalidated an OSHA
rule that set new PELs for 428 toxic substances. MSHA also noted that
it had been ``more than 13 years since the proposal was published and
more than 12 years since the comments were received.'' 67 FR at 60611.
The United Mine Workers of America (UMWA) petitioned the U.S. Court
of Appeals for the District of Columbia Circuit for review of the
Agency's decision to withdraw its proposed Air Quality rule. The Court
concluded that the Agency's action was arbitrary and capricious because
it failed to provide an adequate explanation for its decision. Int'l
Union, UMWA v. MSHA, 358 F.3d 40 (D.C. Cir. 2004). The Court remanded
the matter to MSHA and ordered that the Agency ``either proceed with
the Air Quality rulemaking or give a reasoned account of its decision
not to do so.'' Id. at 45. This notice provides further explanation of
the Agency's 2002 decision to withdraw the proposed rule. The notice
also withdraws the remaining phases of the Air Quality proposed rule
and provides MSHA's continuing rationale for doing so.
This notice discusses the reasons for withdrawal of the proposed
rule in relation to two distinct periods of time. Section B of this
notice, ``Reasons for the 2002 Decision to Withdraw the Proposed
Rule,'' discusses the reasons underlying MSHA's September 2002 decision
to withdraw the Air Quality proposed rule. Section C of this notice,
``Continuing Reasons for the Withdrawal of the Proposed Rule,''
discusses the reasons that continue to support MSHA's decision to
withdraw the proposed rule. The reasons set forth in Section C relate
to the period of time following publication of the September 2002
notice.
B. Reasons for the 2002 Decision To Withdraw the Proposed Rule
MSHA's decision to withdraw the remaining phases of its Air Quality
rulemaking in September 2002 was premised on three reasons:
The adverse effect of AFL-CIO et al. v. OSHA, 965 F.2d 962
(11th Cir. 1992),
Changes in the Agency's priorities, and
The staleness of the rulemaking record.
Though the foregoing reasons represent the specific grounds upon
which the decision was made, the limits of the Agency's resources were
an inherent element of those reasons and necessarily contributed to
MSHA's decision.
1. MSHA's Statutory Responsibility
The Federal Mine Safety and Health Act of 1977 (Mine Act), 30
U.S.C. 801 et seq., sets forth MSHA's statutory responsibility when
promulgating mandatory standards dealing with toxic materials or
harmful physical agents. Section 101(a)(6)(A) of the Mine Act, 30
U.S.C. 811(a)(6)(A), states that the Secretary of Labor:
shall set standards which most adequately assure on the basis of the
best available evidence that no miner will suffer material
impairment of health or functional capacity even if such miner has
regular exposure to the hazards dealt with by such standard for the
period of his working life. Development of mandatory standards under
this subsection shall be based upon research, demonstrations,
experiments, and such other information as may be appropriate. In
addition to the attainment of the highest degree of health and
safety protection for the miner, other considerations shall be the
latest available scientific data in the field, the feasibility of
the standards, and experience gained under this and other health and
safety laws. Whenever practicable, the mandatory health or safety
standard promulgated shall be expressed in terms of objective
criteria and of the performance desired.
Accordingly, the Mine Act imposes a threshold that the Agency must
satisfy in promulgating mandatory health standards. Specifically, MSHA
must ensure that it establishes standards based on the best available
evidence, including a consideration of the latest available scientific
data; it must ensure that a significant risk of ``material impairment''
of health or functional capacity will ensue if it fails to act (i.e.,
the existing exposure limit poses a significant risk of material
impairment or functional capacity); and it must ensure that the
standard is both economically and technologically feasible. 30 U.S.C.
811(a)(6)(A).
2. Effect of the Eleventh Circuit's Decision Vacating OSHA's Air
Contaminants Standard
In AFL-CIO, the U.S. Court of Appeals for the Eleventh Circuit
vacated the Occupational Safety and Health Administration's (OSHA's)
final omnibus Air Contaminants standard, 54 FR 2332 (January 19, 1989),
in which OSHA sought to establish PELs for 428 toxic substances.
Although AFL-CIO was decided under the Occupational Safety and Health
Act of 1970 (OSH Act), 29 U.S.C. 651 et seq., a statute with rulemaking
provisions that differ in some ways from those of the Mine Act, the
major holding of the Eleventh Circuit's decision appears on its face to
apply to both OSHA and MSHA: that the Agency must make specific
findings for each substance and each proposed PEL. The similarities
between the Air Quality and Air Contaminants standards, and the
Agencies' statutory provisions, each weighed heavily in favor of MSHA
assuming a regulatory approach that was consistent with the holding of
AFL-CIO.
Like OSHA's Air Contaminants standard, MSHA's Air Quality proposed
rule was intended to be a ``generic rulemaking'' in which the Agency
would set exposure limits for hundreds of substances in a single
rulemaking. Unlike the OSHA Air Contaminants standard, however, MSHA's
Air Quality rule included proposed standards on eight substantive
components in addition to the hundreds of proposed
[[Page 67683]]
PELs. The eight additional components that the Air Quality proposed
rule addressed were: (1) Revision of existing standards on means of
control of harmful airborne substances in mines; (2) control of dust
generated by abrasive blasting and drilling; (3) exposure monitoring by
mine operators; (4) hazards posed by dangerous atmospheres, including
areas underground, silos, vats, tanks, and other confined spaces; (5)
carcinogens; (6) asbestos construction work at mines; (7) medical
surveillance of miners exposed to carcinogens; and (8) a respiratory
protection program.
Although OSHA also has standards addressing many of the above
components, it did not attempt to promulgate those standards as part of
its Air Contaminants rule. 29 CFR 1910.94 (abrasive blasting); 29 CFR
1910.134 (respiratory protection); 29 CFR 1910.146 (confined space); 29
CFR 1926.1101 (asbestos construction work); and 29 CFR part 1990
(carcinogens policy). OSHA specifically noted in the preamble to its
final Air Contaminants rule that:
The final regulation is limited to consideration of revising the
PELs. There is no consideration of the ancillary requirements which are
typically developed as part of individual substance rulemaking but were
not included in the original Sec. 1910.1000 standard. OSHA has
published ANPRs for Exposure Monitoring (53 FR 32591-32595), and
Medical Surveillance (53 FR 32595-32598), and is developing a proposal
covering revision to the respirator provisions of the OSHA Standards.
OSHA has issued a final rule expanding the Hazard Communication
Standard.
While medical surveillance, exposure monitoring and other
industrial hygiene practices are important, OSHA is not in a position
to develop these requirements while at the same time developing PELs
for several hundred substances. OSHA has determined that lowering
exposures through the development of reduced PELs is of higher priority
because it is more effective in reducing occupational diseases and
material impairment of health. These ancillary requirements will be
addressed as priorities dictate. 54 FR at 2335. MSHA has similarly
recognized a hierarchy of controls in promulgating its rules such that
miners' exposure to harmful airborne contaminants is controlled
principally by removal or dilution of the contaminant, with such
ancillary protections as personal protective equipment, industrial
hygiene practices and medical transfer used to augment the principal
means of protection--removal of the contaminant.
MSHA's Air Quality proposed rule included some 200 (approximately
50%) more PELs than did OSHA's Air Contaminants standard, as well as
the eight substantive components listed above, which OSHA's standard
did not include. Accordingly, the scope and complexity of the Air
Quality proposal was significantly more comprehensive and ambitious
than was OSHA's already groundbreaking approach to addressing potential
chemical hazards that may be found or introduced in the workplace.
As discussed in more detail in this section, the AFL-CIO holdings
effectively gave MSHA two choices: either ignore the decision and
accept the likely risk that a final rule would be vacated, or try to
comply with AFL-CIO and tie up all of the Agency's resources for years
to come. Neither of these options was suitable to MSHA, so the Agency
decided to withdraw the proposed rule, a reasonable course of action in
light of the case.\1\
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\1\ MSHA notes that even absent the holdings of AFL-CIO,
promulgation of a final Air Quality rule would have been extremely
costly in terms of available resources. At the time that the Agency
proposed the rule and for some time thereafter, MSHA believed those
costs to be manageable. In retrospect, MSHA realizes that it did not
fully appreciate the resources needed to promulgate a rule as
comprehensive and complex as the Air Quality rule. The demanding
requirements imposed by the holdings of AFL-CIO, however,
exponentially increased the demand on its resources.
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The AFL-CIO court held that ``the PEL for each substance must be
able to stand independently, i.e., that each PEL must be supported by
substantial evidence in the record considered as a whole and
accompanied by adequate explanation.'' 965 F.2d at 972. The court
continued by stating that ``OSHA may not, by using such multi-substance
rulemaking, ignore the requirements of the OSH Act.'' Ibid. Though
generic rulemaking is permissible, the court noted that generic
rulemakings are required to demonstrate the existence of something
``common to or characteristic of a whole group or class.'' Id. at 971
(quoting Webster's Third New International Dictionary 945 (1966)). The
court was not persuaded that OSHA's Air Contaminants standard
represented generic rulemaking because the rule did not address
substances with common characteristics or impose common requirements on
classes of substances. Instead, the court deemed the standard to be
nothing more than ``an amalgamation of 428 unrelated substance exposure
limits.'' Id. at 972.
MSHA's Air Quality proposed rule was comparable to OSHA's Air
Contaminants rule in that it did not demonstrate the existence of
common characteristics between, or impose common requirements on, the
hundreds of substances listed in the PEL table. Under the AFL-CIO
holding, MSHA's Air Quality rule could be categorized by a reviewing
court as nothing more than an amalgamation of 600+ unrelated substance
exposure limits.
AFL-CIO also held that the OSH Act does not permit OSHA to regulate
any risk that it chooses. Id. at 973. Rather, the Agency may only
regulate those risks that present a ``significant'' risk of material
health impairment. Ibid. Thus, the court held that for each substance
OSHA seeks to regulate, the Agency must present individual findings
that ``a significant risk of material health impairment exists at the
current levels of exposure to the toxic substance in question,'' id.,
and that the proposed PEL would ``prevent material impairment of
health.'' Ibid. Finally, the Eleventh Circuit held that ``OSHA has a
responsibility to quantify or explain, at least to some reasonable
degree, the risk posed by each toxic substance regulated.'' Id. at 975
(emphasis in original). Although the preamble to OSHA's Air
Contaminants rule individually discussed each of the 428 toxic
substances for which PELs were established, the court ultimately found
that those discussions, and mere conclusory statements regarding risk
reduction, fell short of the statutorily required risk assessment that
the Agency was required to perform. Id. at 975-976.
The holding of AFL-CIO presented MSHA with challenges it had not
contemplated at the time the Agency proposed the Air Quality rule. Of
the more than 600 substances for which MSHA sought to establish PELs,
it individually discussed only about two dozen. See 54 FR 35760, 35767-
35770 (August 29, 1989). Of the two dozen or so substances that were
discussed individually, the Agency did not present evidence that it
believed the substances might pose a significant risk of material
impairment of health or functional capacity, findings it would be
required to make in order to finalize the rule. At the time the Air
Quality rule was proposed, MSHA had not determined that each of the
substances in the proposed rule was found on mine property, much less
that those substances were found at levels sufficient to cause
significant risk to miners. In this regard, the Air Quality preamble
stated that ``[s]ome commenters objected and favored listing only
substances found on mining property and which present a risk of a
[[Page 67684]]
material impairment of health or functional capacity. This proposed
rule includes those substances which the Agency has reason to believe,
based upon the Agency's knowledge thus far, could pose this type of
health risk if found on mine property.'' Id. at 35765 (emphases added).
The preamble further stated that although ``the majority of substances
in the `TLV[supreg] Booklet' \2\ do not naturally occur in mining, they
may be brought on mine property in the course of day-to-day operations.
For this reason, MSHA is proposing to include most of the TLV[supreg]
list in a table of permissible exposure limits.'' Id. at 35766
(emphasis added.)
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\2\ TLV[supreg] is the acronym for Threshold Limit Value.
Threshold Limit Values are exposure guidelines recommended by the
American Conference of Governmental Industrial Hygienists
(ACGIH[supreg]). The ACGIH's Web site, http://www.acgih.org/TLV,
describes Threshold Limit Values as being ``designed for use by
industrial hygienists in making decisions regarding safe levels of
exposure to various chemical substances and physical agents found in
the workplace.'' MSHA's existing air quality standards incorporate
by reference the ACGIH's 1972 (coal) and 1973 (metal and nonmetal)
Threshold Limit Values.
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In fact, MSHA summarized commenters' general dissatisfaction with
the sufficiency of the evidence the Agency provided in proposing the
rule by stating:
Commenters generally criticized the Agency for limiting its
discussion of specific substances on the PEL table to less than two
dozen of the several hundred substances listed. They requested that
MSHA give a rationale for each substance in the proposed rule, evidence
that all are present in the mining environment, and how these chemicals
are used. For those substances for which the Agency proposed to lower
the PEL, commenters generally wanted MSHA to: Prove that the present
PEL presents a significant risk to miners; quantify the extent of the
risk; prove that risk represents a ``material impairment of health;''
and prove that any change in the standard is economically and
technologically capable of being achieved.
These commenters also requested that MSHA discuss epidemiological
data establishing that these substances are present in concentrations
that cause a material impairment of health or functional capacity to
miners. They also requested MSHA to provide evidence on the feasibility
of controlling these substances with either engineering or
administrative controls. 56 FR 8168, 8169 (February 27, 1991).
Like OSHA, MSHA is not statutorily authorized to regulate any risk
it chooses; rather, section 101(a)(6)(A) of the Mine Act, 30 U.S.C.
811(a)(6)(A), authorizes the Agency to regulate those risks which
present a risk of material impairment of health or functional capacity.
Because MSHA could not have reasonably promulgated a final rule which
made a determination that each substance the Agency sought to regulate
presented a significant risk of material impairment of health or
functional capacity at the existing PEL, the PELs would not have been
able to ``stand independently,'' as was required by AFL-CIO. In other
words, if MSHA had engaged in separate rulemakings for each of the 600+
substances, it would have been obligated to, among other things,
estimate or quantify the risk posed by exposure to the substance at the
existing PEL and explain why such exposure presented a significant risk
of material impairment to health or functional capacity. Under the
logic of AFL-CIO, MSHA is required to make the same findings and
explanations in its omnibus rulemakings. A persuasive argument could be
made that like OSHA, MSHA ``is not entitled to take short-cuts with
statutory requirements simply because it chose to combine multiple
substances in a single rulemaking.'' 965 F.2d at 975.
Under AFL-CIO, MSHA could not have finalized the Air Quality rule
in the form in which it was proposed without an unanticipated and
enormous expenditure of Agency resources. Providing a quantitative risk
assessment for each of the more than 600 substances would have been a
lengthy, complex, and costly process requiring MSHA to conduct a
significant amount of additional scientific work. In fact, MSHA's
completion of rulemaking on even one substance would have required a
significant commitment of Agency resources. The Agency's failure to
promulgate the Air Quality rule in accordance with AFL-CIO, however,
would have left MSHA vulnerable to a potentially formidable legal
challenge to the rule.
The UMWA suggested in Int'l Union, UMWA that the availability of
information recommending exposure limits--namely Threshold Limit Values
(TLVs[supreg]--adopted by the American Conference of Governmental
Industrial Hygienists (ACGIH[supreg] might enable MSHA to complete the
Air Quality rulemaking despite the AFL-CIO decision. In fact, the
availability of information related to ACGIH's TLVs would not
necessarily have made the task of promulgating the Air Quality standard
much less complex or arduous. While current TLVs would provide MSHA
with a basis for assessing potential PELs, the Agency would still have
been required to make an independent evaluation of whether each TLV
would be an appropriate PEL. MSHA could not have adopted the ACGIH's
TLVs wholesale without an independent assessment of the evidence
supporting a PEL consistent with each TLV. This is particularly true
because TLVs are established based exclusively on health
considerations. ACGIH's establishment of any given TLV does not account
for such considerations as economic or technological feasibility, both
of which MSHA is statutorily required to consider in establishing its
exposure standards. Therefore, an independent assessment of each of the
600-odd substances would have to be made regardless of the TLV
recommendations made by AGGIH. The AFL-CIO court specifically addressed
this issue and found that although OSHA could rely on the ACGIH's
recommendations, the Agency was not relieved of its responsibility to
make ``detailed findings, with adequate explanations, for all statutory
criteria.'' 965 F.2d at 984. Ultimately, MSHA bears the burden of
proving that it has met its statutory obligation, and as such, it must
be prepared to set forth the analysis used in its determination that a
given PEL is based on the best available and latest scientific
evidence, id., and that the chosen PEL is economically and
technologically feasible.
In 2002, when MSHA made the decision to withdraw the Air Quality
proposed rule, it recognized that the unfavorable holding of AFL-CIO
did not compel the Agency to withdraw the rule. Nonetheless, AFL-CIO
left MSHA with two equally unappealing alternatives: ignore the
decision and risk that a final rule would be vacated, or comply with
the holdings of the decision and encumber the Agency's resources for
the foreseeable future. MSHA recognized that had it ignored the AFL-CIO
court decision, a circuit other than the Eleventh Circuit may have been
disinclined to follow the holding in that case. Nevertheless, MSHA also
knew that it could have been, and likely would have been, challenged in
the U.S. Court of Appeals for the Eleventh Circuit, and that litigation
in that circuit would very likely have proven fatal to the Air Quality
rule unless MSHA made substance-specific assessments for each of the
600+ PELs. There are numerous mine operators in the Eleventh Circuit
and MSHA has had to defend its actions in that circuit on previous
occasions. See Nat'l Mining Ass'n, Alabama Coal Ass'n v. U.S.
Department of Labor, 153 F.3d 1264 (11th Cir. 1998). Even if
[[Page 67685]]
MSHA was not challenged in the Eleventh Circuit, the Agency could have
been challenged in a circuit that would have been persuaded by the
reasoning in AFL-CIO. Thus, while AFL-CIO did not compel the Agency to
terminate the Air Quality rulemaking, it compelled MSHA to take into
account the AFL-CIO holding and to make a decision about the fate of
the rulemaking accordingly. MSHA's decision to withdraw the Air Quality
proposed rule simply acknowledged that after the Eleventh Circuit's
decision, it would be difficult and expensive to finalize and defend
broad omnibus health rulemakings covering multiple substances. The
Agency's decision also reflected its belief that the inordinate
resources that would have been required to craft a judicially
sustainable final rule would not have been a prudent use of Agency
resources.
In Int'l Union, UMWA, the UMWA mentioned that another federal
agency had successfully promulgated a rule updating a list of toxic
chemicals in a single rulemaking, implying that MSHA should be
encouraged despite the holdings of AFL-CIO. In Troy Corporation v.
Browner, 120 F.3d 277 (D.C. Cir. 1997), the U.S. Court of Appeals for
the District of Columbia Circuit upheld an Environmental Protection
Agency (EPA) rule adding 286 chemicals to its Toxic Release Inventory
(TRI) pursuant to the Emergency Planning and Community Right-To-Know
Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq. MSHA believes that Troy is
distinguishable on at least two significant bases, thus making it less
pertinent to MSHA's Air Quality rulemaking than AFL-CIO. First, and
most importantly, the rulemaking provisions of the Mine Act more
closely resemble those of the OSH Act than those of the EPCRA. The
statutory threshold that EPA must satisfy in order to include a
chemical on the TRI list is much lower than MSHA's and OSHA's statutory
threshold for establishing PELs for toxic materials and harmful
physical agents. The Troy court held that EPCRA does not obligate the
EPA to demonstrate any ``likelihood of contact between humans and the
chemical.'' 120 F.3d at 285-286. Conversely, MSHA's and OSHA's
rulemaking provisions require the agencies to demonstrate, among other
things, that the agent or contaminant at issue poses a significant risk
of ``material impairment of health or functional capacity,'' an
exceedingly more demanding threshold than that of the EPCRA.
Second, the substance of the Air Quality rule more closely
resembles OSHA's Air Contaminants rule than it does the EPA rulemaking
adding chemicals to the TRI list. The requirements imposed on owners of
facilities covered by section 11023 of EPCRA are more akin to the
requirements imposed on mine operators and employers by MSHA's and
OSHA's Hazard Communication standards than the proposed Air Quality
standards. In that regard, the relevant EPCRA section requires
dissemination of information only, not compliance with substantive
exposure limits. The Air Quality proposed rule, unlike the TRI list and
MSHA's Hazard Communication rule, included provisions requiring use of
engineering and administrative controls to limit exposure to the
substance, exposure monitoring, medical surveillance and transfer, and
the use of personal protective equipment. Promulgation of comprehensive
health rules, such as the Air Quality rule, requires a degree of
scientific evidence and feasibility analysis that is not generally
associated with notification or informational standards. For this
reason, the TRI list addressed in Troy and MSHA's Air Quality rule are
not substantively similar enough to make Troy the most appropriate case
for comparison. Given the foregoing, MSHA believes that the grounds for
comparing its Air Quality rulemaking to the EPA rulemaking at issue in
Troy are unsound. MSHA's rulemaking provisions and the content of its
Air Quality proposed rule more closely resemble those of the OSH Act
and the Air Contaminants rulemaking, thereby making AFL-CIO a more
germane case than Troy.
3. Changes in Agency Priorities
Given the additional burden of following the Eleventh Circuit's
requirements to finalize the Air Quality rule, MSHA believed that
promulgating the rule would detrimentally affect its other ongoing
rulemakings. Consequently, the Agency reassessed its rulemaking
priorities, and ultimately decided to withdraw the Air Quality proposed
rule. The Mine Act provides the Secretary of Labor broad discretion to
set and change rulemaking priorities as she deems appropriate.
Specifically, section 101(a) of the Mine Act provides the Secretary the
discretion to ``develop, promulgate, and revise as may be appropriate
improved mandatory health or safety standards for the protection of
life and prevention of injuries in coal or other mines.'' 30 U.S.C.
811(a). Likewise, the Mine Act provides the Secretary with the
authority to ``promulgate, modify, or revoke'' a proposed rule. 30
U.S.C. 811(a)(4)(A). ``In the event the Secretary determines that a
proposed mandatory health or safety standard should not be
promulgated,'' she must ``publish h[er] reasons for h[er]
determination.'' 30 U.S.C. 811(a)(4)(C). Int'l Union, UMWA, 358 F.3d at
43.
MSHA sets and changes its rulemaking priorities based, in part, on
the resources available to it. Based on the reasoning of the 1992 AFL-
CIO decision, the Agency ultimately concluded that promulgation of even
a significant portion of the Air Quality standard would have consumed
all of the Agency's rulemaking resources. Prior to the demanding
requirements imposed by the AFL-CIO decision, MSHA believed that the
resources necessary to promulgate the Air Quality rule were manageable.
However, the resources required to complete the standard in a manner
that would withstand judicial scrutiny following AFL-CIO were
unanticipated at the time that the rule was proposed.
Even a phased approach to promulgating the more than 600 PELs, and
the seven substantive components of the rule that remained following
promulgation of the abrasive blasting and drill dust control rule,
would have exhausted MSHA's rulemaking resources. This would have
required MSHA to ignore or neglect many of its other regulatory
responsibilities for the foreseeable future. In retrospect, MSHA
realized that even a phased approach to promulgating the Air Quality
rule would have overwhelmed the Agency, particularly in light of its
other rulemaking objectives. MSHA initially grouped the rulemaking
provisions simply to facilitate more orderly and organized public
comment, and to more easily focus the discussions at the public
hearings. The fact that MSHA divided the rulemaking provisions into
three distinct groups should not have suggested that the Agency could
more easily promulgate judicially sustainable components of the rule
than it could promulgate a judicially sustainable rule at once in its
entirety. Whether MSHA promulgated the rule as divided, or in its
entirety, AFL-CIO demanded that MSHA make the same scientifically
difficult and exacting findings.
For several years following AFL-CIO and the 1994 promulgation of
the abrasive blasting and drill dust control rule, MSHA continued to
work on various provisions of the Air Quality rule. MSHA anticipated
publishing new proposed rules for several of the provisions contained
in the Air Quality rule, such as those addressing carcinogens and
respiratory protection. The Agency performed work
[[Page 67686]]
accordingly. Ultimately, however, because of the changes in MSHA's
priorities, the Agency was not able to develop drafts for either
component. By 2002, the Agency realized the enormity and breadth of the
rule, and the resources that it would have had to devote to finalize
any one provision. For example, the abrasive blasting and drill dust
control provision of the rule was only one of eight contained in the
first group of provisions, and it took nearly five years to complete.
As compared to the other provisions, promulgation of the abrasive
blasting and drill dust control standard was less complicated than many
of the other provisions would have been. Because the Agency determined
that even a phased approach to promulgating the remainder of the Air
Quality rule was infeasible, it decided to withdraw the rule and pursue
other, more narrowly focused and achievable priorities.
The Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive
Order 12866, 58 FR 51735 (September 30, 1993), require semiannual
publication in the Federal Register of an agenda of regulations. The
Regulatory Flexibility Act requires the Department of Labor to publish
a regulatory agenda in October and April of each year, listing all of
the regulations that the Department expects to propose or promulgate
that are likely to have a ``significant economic impact on a
substantial number of small entities.'' 5 U.S.C. 602. In addition to a
summary of the nature of such regulations, the Regulatory Flexibility
Act also requires the Department to include the objectives and the
legal basis for the issuance of the rule, and an approximate schedule
for completing action on the rule. Id. Executive Order 12866
supplements the above obligations and, in substance, requires agencies
to publish an agenda listing all the regulations it expects to have
under active consideration for promulgation, proposal, or review during
the coming 1-year period. Executive Order 12866 also requires each
agency, as part of the regulatory agenda, to prepare a regulatory plan
of the most important ``significant'' regulatory actions that the
agency reasonably expects to issue in proposed or final form in that
fiscal year or thereafter. In essence, the regulatory plan sets forth
an agency's highest priority regulatory actions. The Air Quality rule
has not been included on MSHA's regulatory plan since 1994 and was not
a priority in recent years.
The regulatory agendas of previous Administrations were seldom
limited to only those agenda items that the Agency could realistically
complete within a reasonable time. These voluminous agendas promoted
the notion that MSHA could advance scores of complicated rulemakings
concurrently. This, however, was never the case and is not the case
now. For example, MSHA health standards were, and still are, developed
by ``committees'' of employees consisting of scientists, economists,
industrial hygienists, technical support staff, enforcement/field
personnel with expertise in the given area, regulatory specialist, and
lawyers. Safety standards were (and still are) developed similarly,
requiring many of the same people who worked on health standards. Thus,
the number of MSHA employees who were, and are, available to work on a
rulemaking project at any given time is limited. Because there were
limited numbers of these personnel, an Air Quality rulemaking could not
have been developed without transferring personnel from other
rulemakings that the Secretary had determined were priorities. At the
very least, economists, regulatory specialists, and lawyers would have
been required to transfer from other projects, and some field personnel
would have been required to put aside their enforcement duties while
assisting with rulemaking. Despite the fact that Agency resources were
directed to other, higher priority rulemaking projects, previous
Administrations continued to list the Air Quality rule on the
Department's regulatory agenda as an ongoing rulemaking.
As stated above, the extensive regulatory agendas of the past were
not only unrealistic, but fueled misconceptions about the ability of
the Department's agencies to simultaneously develop or further vast
numbers of concurrent rulemakings. Recognizing that this established
practice was outdated and that it undermined the basic function of the
Agenda, the Secretary introduced a new approach to the regulatory
agenda, limiting it to ``only those rules for which [agencies] could
complete the next step in the regulatory process within a 12-month
period.'' BNA Daily Labor Report April 22, 2002 (quoting Deputy
Secretary of Labor Cameron Findlay). Consequently, a number of
regulations were removed from the Department's Agenda. In the fall of
2000, for example, the Department's regulatory agenda contained some
145 rulemaking projects. By comparison, the fall 2003 Agenda contained
79 rules, and the spring 2004 Agenda contained 81 rulemakings. The
Secretary's review and reprioritization of each agency's Agenda items
was not an occurrence unique to the Department; rather, it was
consistent with a federal agency-wide initiative intended to maintain
sound regulatory practice. Memorandum from Andrew H. Card, Jr.,
Assistant to the President and Chief of Staff, to Heads and Acting
Heads of Executive Departments and Agencies, January 20, 2001 (66 FR
7702 (January 24, 2001)). The concurring opinion in Int'l Union v.
Chao, 361 F.3d 249 (3d Cir. 2004), candidly addressed this phenomenon
by noting that ``there is nothing obscure, and nothing suspect about
regulatory policy changes coincident with changes in administration.''
Id. at 256. As the concurring opinion observed, each administration
embraces its own priority-setting process and regulatory philosophy
such that items considered priority by one administration may not be so
by another administration. Id. Though MSHA has only withdrawn one other
proposed rule from its regulatory agenda, Requirements for Approval of
Flame-Resistant Conveyor Belts, 67 FR 46431 (July 15, 2002), the Agency
routinely removes pre-proposal rulemakings from the Agenda. See, e.g.,
Bloodborne Pathogens, Department of Labor Unified Agenda, 60 FR 23567
(May 8, 1995); Roof Bolting Machines, Department of Labor Unified
Agenda, 65 FR 23056 (April 24, 2000).
In the 13 years between proposal of the Air Quality rule in August
1989 and the September 2002 withdrawal notice, MSHA promulgated
approximately 50 final rules. The rules were of varying complexity.
Though the majority of these rules were safety standards, several of
the standards MSHA promulgated during that period either directly or
indirectly addressed some of the health hazards which the Air Quality
rule sought to prevent. In any event, the rules listed below consumed
much of the Agency's rulemaking resources and constituted the Agency's
highest rulemaking priorities as determined by the Secretary for the
period in question.
In 1994, MSHA promulgated the abrasive blasting and drill dust
control provisions of the proposed Air Quality rule. 59 FR 8318
(February 18, 1994). These standards remain effective in spite of the
withdrawal of the remaining phases of the proposed Air Quality rule.
The abrasive blasting and drill dust control standards are applicable
to all metal, nonmetal, and coal mines. 30 CFR 58.610, 58.620, 72.610,
72.620, 72.630.
In 1996, MSHA issued final ``Safety Standards for Underground Coal
Mine Ventilation.'' 48 FR 9764 (March 11, 1996). As noted in the
preamble to the ventilation standard, ``the primary function of a mine
ventilation system is
[[Page 67687]]
twofold, to remove hazardous gases such as methane, and to provide
miners with an [sic] respirable environment in areas where they are
required to work or travel.'' Id. at 9775. Moreover, the preamble to
the ventilation final rule states in regard to air quantity, ``[i]t is
essential for miners' health and safety that each working face be
ventilated by sufficient quantity of air to dilute, render harmless,
and carry away flammable and harmful dusts and gases produced during
mining.'' Id. at 9780. Maintaining adequate ventilation in underground
coal mines helps to ensure that miners are not exposed to accumulations
of hazardous gases and dusts. MSHA's ventilation standard established a
mandatory oxygen content of 19.5% by volume in bleeder entries, and in
areas where persons work or travel. 30 CFR 75.321. Sections 58/72.300
of the Air Quality proposal, entitled ``Dangerous Atmospheres,''
proposed an equivalent mandatory oxygen content by volume for all work
areas. 54 FR at 35817, 35840 (August 29, 1989). During the period from
August 1989 to September 2002, MSHA also promulgated final standards
for ``Diesel Powered Equipment.'' 61 FR 55412 (October 25, 1996). The
diesel equipment rule requires monitoring and control of gaseous diesel
emissions--specifically, carbon monoxide (CO) and nitrogen dioxide
(NO2 )--so that miners are protected from exposure to harmful
levels of gaseous contaminants. 30 CFR 70.1900. In addition, the diesel
equipment rule limits miners' exposure to harmful diesel exhaust
contaminants by requiring Agency approval of most diesel engines (30
CFR part 7); minimum ventilating air quantities in areas where diesel
equipment is operated (30 CFR 75.325); the use of low-sulfur fuel (30
CFR 75.1901); and the use of clean-burning engines (30 CFR part 7).
The Air Quality rule proposed lowering the PELs for many of the
gases found in diesel exhaust, including CO and NO2 . Because
the proposed Air Quality rule was to lower these PELs, the diesel
equipment rule did not do so. Despite the fact that the CO and
NO2 PELs were not reduced, the diesel equipment rule
provides coal miners with a degree of protection from diesel exhaust
gases by reducing emissions of those gases, and thereby coal miners'
exposure to them. It should also be noted that following publication of
the diesel equipment final rule in 1996, MSHA surveyed 23 of 26 mines
using diesel equipment in underground coal mines, collecting over 500
samples. MSHA determined that coal miners were not exposed to levels of
CO and NO2 that would have exceeded the standards proposed
by the Air Quality rule.
Nonetheless, in March 1997, the UMWA petitioned the U.S. Court of
Appeals for the District of Columbia Circuit for a writ of mandamus
compelling MSHA to issue standards governing emissions in diesel
exhaust. In re United Mine Workers of America Int'l Union, 190 F.3d 545
(D.C. Cir. 1999). Specifically, the UMWA sought regulation of two
components of diesel exhaust: gases and particulate matter. Following
negotiations between MSHA and the UMWA, the parties were able to
dispose of the particulate matter portion of the petition, as discussed
in further detail in the paragraph below, leaving before the court only
the portion of the petition dealing with regulation of exhaust gases.
In this regard, the UMWA wanted final standards lowering the PELs for
CO and NO2 . With the prospect of court-ordered rulemaking
impending, MSHA and the UMWA were able to settle the matter so as to
avoid hindrance of Agency action on diesel particulate matter and
respirable coal mine dust, both of which the UMWA asserted were of
higher priority than diesel exhaust gases. Id. at 553. Consequently,
the parties ultimately agreed to dismiss the case and to address the
UMWA's concerns about gaseous emissions by establishing a diesel
exhaust monitoring protocol. These procedures were incorporated into
the Agency's directives system and are carried out by coal mine health
inspectors during inspections. Coal Mine Health Inspection Procedures
Handbook, Chapter 5 ``Diesel Exhaust Gas Monitoring,'' PH89-V-1(14)
(December 2000).
As mentioned above, the UMWA also sought regulation of diesel
particulate matter through its mandamus petition. During the pendency
of the suit, MSHA published a proposed rule for the regulation of
diesel particulate matter, 63 FR 17492 (April 9, 1998), and the court
dismissed this portion of the UMWA's petition as moot. Consequently,
the coal and metal/nonmetal diesel particulate matter rules became
priority rulemakings in the years between the Air Quality proposed rule
and the September 2002 withdrawal notice.
The final coal diesel particulate matter rule, 66 FR 5526 (January
19, 2001), requires mine operators to restrict diesel particulate
matter emissions from certain pieces of equipment to prescribed levels
(30 CFR 72.500 to 72.502), and requires underground coal mine operators
to train miners about the hazards of diesel particulate matter exposure
(30 CFR 72.510). Most of the provisions of the final coal diesel
particulate matter rule became effective in March 2001. Three
provisions, however, were subject to later effective dates, two of
which have already passed. The final provision will become effective in
January 2005.
Like the coal diesel particulate matter rule, the final metal/
nonmetal diesel particulate matter rule was published on January 19,
2001. 66 FR 5706. The final rule established new health standards for
underground metal and nonmetal miners by requiring use of approved
equipment and low sulfur fuel, and by setting interim and final
concentration limits for diesel particulate matter in the underground
mining environment. Several parties, including mine operators and
industry associations, filed petitions for review of the final rule,
and the United Steelworkers of America intervened. The petitions were
consolidated and are pending in the U.S. Court of Appeals for the
District of Columbia Circuit. AngloGold (Jerritt Canyon) Corp. et al.
v. U.S. Department of Labor, Nos. 01-1046, 01-1124, 01-1146 (D.C. Cir.
filed Jan. 29, 2001). Pursuant to a first partial settlement agreement
reached in response to legal challenges to the 2001 metal/nonmetal
diesel particulate matter rule, MSHA amended portions of the final rule
on February 27, 2002 (67 FR 9180). The revisions addressed the evidence
and tagging provisions of the Maintenance standard, as well as the
definition of ``introduced'' in the Engine standard. On August 14, 2003
(68 FR 48668), pursuant to a second partial settlement agreement, MSHA
initiated additional rulemaking to further amend the final rule. These
revisions would revise the interim concentration limit; designate
elemental carbon as the surrogate for measuring diesel particulate
matter for the interim limit; apply MSHA's longstanding hierarchy of
controls used for other exposure-based health standards, including
engineering and administrative controls supplemented by respiratory
protection, but prohibiting rotation of miners; and revise the
requirements for the diesel particulate matter control plan. The legal
challenge has been stayed pending completion of additional rulemaking
actions.
MSHA's final ``Occupational Exposure to Noise'' rule, 64 FR 49548
(September 13, 1999) was another rulemaking that MSHA determined was a
priority and to which the Agency committed considerable rulemaking
resources. Once promulgated, the Noise rule replaced standards that
provided
[[Page 67688]]
inadequate protection of miners' hearing and were more than 20 years
old. MSHA estimated that under its previous noise rule, 13.4% of the
mining population in the United States would have developed a material
hearing impairment during their working lifetime. MSHA concluded that
approximately 13,000 coal miners and 24,000 metal and nonmetal miners
would have experienced noise-induced hearing loss under the prior
standard, and that those miners would substantially benefit from the
final rule's effect of improving miners' health and lessening the
personal and social hardships resulting from noise-induced hearing
loss. As will be explained in further detail in this notice, MSHA
continues to commit resources to the implementation of this rule.
On March 11, 2002, MSHA published safety standards for ``Electric
Motor-Driven Mine Equipment and Accessories and High-Voltage Longwall
Equipment Standards for Underground Coal Mines.'' 67 FR 10972. The
final high-voltage longwall rule allows mine operators to use high-
voltage longwall systems without having to obtain a mine-specific
petition for modification from MSHA. MSHA considered this rule a
priority because the Agency concluded that high-voltage longwalls could
be used safely, provided that certain conditions were met. The high-
voltage longwall rule accounted for new and improved longwall
technology, and established increased protection from electrical
hazards, while reducing the paperwork requirements associated with
petitions for modification.
During the period in question, MSHA also devoted considerable
resources to its ``Hazard Communication'' (HazCom) rule, 67 FR 42314
(June 21, 2002). Similar to the Toxic Release Inventory list that was
at issue in Troy Corporation v. Browner, 120 F.3d 277 (D.C. Cir. 1997),
MSHA's HazCom rule is an information dissemination rule that does not
contain provisions that require use of engineering and administrative
controls to limit exposure to chemicals, exposure monitoring, medical
surveillance and transfer, or the use of personal protective equipment.
However, the HazCom rule requires mine operators to evaluate the
hazards of chemicals they produce or use and provide information to
miners concerning chemical hazards; label containers of hazardous
chemicals; provide access to material safety data sheets; and train
miners about hazardous chemicals to which they might be exposed.
Chemicals for which MSHA proposed PELs under the Air Quality proposed
rule are subject to the HazCom requirements.
On December 12, 2002, pursuant to its authority derived from Sec.
101(b)(1) of the Mine Act, 30 U.S.C. 811(b)(1), MSHA issued an
emergency temporary standard (ETS) addressing underground coal mine
emergency evacuations, 67 FR 76658. Section 101(b)(1) of the Mine Act
authorizes the Secretary to issue emergency temporary health or safety
standards without regard to the mandates of the Administrative
Procedure Act, 5 U.S.C. 553, when she determines that ``miners are
exposed to grave danger from exposure to substances or agents
determined to be toxic or physically harmful, or to other hazards, and
* * * that such emergency standard is necessary to protect miners from
such danger.'' 30 U.S.C. 811(b)(1). Emergency temporary standards
become effective immediately upon publication in the Federal Register,
30 U.S.C. 811(b)(1), and must be superseded by a mandatory health or
safety standard no later than nine months after publication of the
emergency standard. 30 U.S.C. 811(b)(3). The issuance of an emergency
standard is an extraordinary measure provided for by the Mine Act, but
one which MSHA employs when it determines that such a standard is
necessary to prevent grave dangers from ``manifest[ing] themselves in
serious or fatal injuries or illnesses.'' S. Rept. 181, 95th Cong., 1st
Sess. 23 (1977).
Following several fatal and non-fatal coal mine emergencies, MSHA
determined that miners were exposed to grave danger when they remained
underground or re-entered affected mine areas during mine emergencies
presenting an imminent danger due to fire, explosion, or gas or water
inundation. MSHA concluded that it was imperative to immediately
address proper training and emergency evacuation procedures by way of
an ETS. As required by the Mine Act, MSHA had to replace the ETS with
final safety standards within nine months of the ETS's publication.
Hence, MSHA published its final ``Emergency Evacuations'' rule on
September 9, 2003 (68 FR 53037). As with the rules mentioned in the
preceding paragraphs, MSHA deemed these rulemakings to be priorities
and devoted rulemaking resources accordingly.
The most recently published final rule which represented an MSHA
rulemaking priority during the years in question is the ``belt air''
rule. The belt air rule was originally proposed as part of MSHA's
rulemaking on ventilation of underground coal mines, but ultimately
developed as an independent rulemaking following the Secretary's
decision to further review the safety factors associated with the use
of belt air to ventilate working places.
On April 2, 2004, MSHA published final safety standards,
``Underground Coal Mine Ventilation--Safety Standards for the Use of a
Belt Entry as an Intake Air Course to Ventilate Working Sections and
Areas Where Mechanized Mining Equipment is Being Installed or Removed''
(``belt air'' rule) (69 FR 17480). Prior to the effective date of the
belt air rule, mine operators were required to obtain a petition for
modification (30 CFR part 44) of various safety standards before they
were allowed to use intake air passing through the belt air course to
ventilate designated locations where miners work. In effect, the belt
air rule incorporates the bulk of the safety requirements found in the
most recently granted petitions for modification so that mine operators
will no longer need to seek a mine-specific petition for modification
before using belt air in sections of their mine with three or more
entries. By retaining these safety requirements in the rule, miners'
safety will be preserved.
Though the above standards do not address all of the hazards that
the Air Quality rule was intended to address, MSHA has promulgated
several rules in the recent past that directly or indirectly assist in
reducing miners' exposure to airborne contaminants. Such rules include
those addressing diesel particulate matter, hazard communication, and
diesel equipment. MSHA has also addressed diesel exhaust gases, which
was proposed as part of the Air Quality rulemaking, through detailed
procedures in its Inspection Procedures Handbook. The measure of
protection provided to miners from these rules was not available at the
time that the Air Quality rule was proposed. In addition, these
standards focused on discrete health and safety hazards and reflected
an incremental approach to regulating mine safety and health that
appears preferable in light of AFL-CIO. After the Eleventh Circuit's
decision, MSHA made a reasonable and reasoned decision to direct its
resources to rulemakings that could be, and were, successfully
completed. The decision to reprioritize the Air Quality rule was
entirely appropriate and reflects the Secretary's authority to reassess
and reorder priorities as necessary and as appropriate.
4. Staleness of Rulemaking Record
In addition to changes in MSHA's rulemaking priorities, the 2002
decision to withdraw the Air Quality proposed
[[Page 67689]]
rule was also premised on the staleness of the rulemaking record. As
the D.C. Circuit observed, the staleness of the record is not a
distinct reason for withdrawing the Air Quality proposed rule. Int'l
Union, UMWA v. U.S. Department of Labor, 358 F.3d 40, 44 (February 20,
2004). However, staleness of the record is a critical concern in
determining the level of resources MSHA must be prepared to commit to
the project to make it a priority, to the certain exclusion of all
other rulemaking priorities. At the time of publication of the
September 2002 withdrawal notice, it had been more than 13 years since
the rule's proposal, and some 12 years since comments had been
received. In accordance with the mandates of the Mine Act, however,
MSHA is to consider the latest available scientific data when
promulgating mandatory standards dealing with toxic materials or
harmful physical agents. Since the Air Quality rule was proposed in
1989, significant new scientific information relating to many of the
proposed provisions had developed. Thus, MSHA would have had to
essentially start the rulemaking process from the beginning, and
evaluate the significance of the risk of material impairment of health,
and all of the feasibility issues, on the latest available information.
C. Continuing Reasons for the Withdrawal of the Proposed Rule
1. Changes in Agency Priorities
As discussed previously, MSHA's rulemaking priorities in the years
following the promulgation of the abrasive blasting and drill dust
control standards made it impossible for the Agency to complete the Air
Quality rulemaking. Moreover, since publication of the September 2002
Air Quality withdrawal notice, MSHA's rulemaking priorities have not
permitted it to re-propose the rule. The Agency expects that its
rulemaking resources will be consumed by other priority rulemakings
such that it will not be able to promulgate the Air Quality rule for
the foreseeable future. The Department of Labor's 2003-2004 regulatory
plan, 68 FR 72520 (December 22, 2003), identifies three high priority
initiatives for MSHA, noting that items listed in the regulatory plan
are those ``issues most clearly needing regulatory attention.'' Ibid.
For MSHA, the Secretary has identified asbestos, metal/nonmetal diesel
particulate matter, and the two coal mine dust rules as priority
rulemakings. Ibid.
On March 29, 2002, MSHA published an advanced notice of proposed
rulemaking declaring its intent to initiate rulemaking on ``Measuring
and Controlling Asbestos Exposure.'' 67 FR 15134. The Agency also held
six public meetings between April 2002 and June 2002 to allow for early
participation in the rulemaking process by interested parties. The
importance of such a rulemaking is highlighted in the Department of
Labor's Office of Inspector General's (OIG) recommendations to MSHA to
reduce the risk of incidents similar to those that took place in Libby,
Montana. ``Evaluation of MSHA's Handling of Inspections at the W.R.
Grace & Company Mine in Libby, Montana.'' USDOL Office of the Inspector
General, Office of Analysis, Complaints and Evaluations, Report No. 2E-
06-620-0002 (March 22, 2001). MSHA's Air Quality proposed rule
recognized the importance of controlling asbestos exposure, and
proposed a PEL consistent with then-current levels promulgated by OSHA
in its Air Contaminants standard. In 1994, OSHA promulgated a revised
substance-specific asbestos standard that lowered the PEL to an eight-
hour time-weighted average limit of 0.1 fiber per cubic centimeter (f/
cc) and lowered the short-term exposure limit to 1.0 f/cc as averaged
over a sampling period of 30 minutes. 59 FR 40964 (August 10, 1994). In
the wake of the illnesses and fatalities in Libby, Montana, MSHA's
practice has been to encourage mine operators to comply with the
current OSHA PEL, as MSHA's metal/nonmetal and coal asbestos exposure
standards are some 20-fold higher than OSHA's. MSHA Program Information
Bulletin No. P-0003, ``Potential Exposure to Airborne Asbestos on
Mining Properties'' (March 2, 2000). For all of the above reasons, MSHA
feels strongly that promulgating an asbestos standard must remain one
of the Agency's top rulemaking priorities.
As discussed elsewhere in this document in further detail, MSHA is
in the process of finalizing the metal/ nonmetal diesel particulate
matter rule pursuant to the litigation in AngloGold (Jerritt Canyon)
Corp. et al., supra, and is devoting significant resources to this
Agency priority. As MSHA is currently doing with the coal diesel
particulate matter rule, MSHA anticipates providing training to both
its inspectorate and stakeholders, providing compliance assistance, and
engaging in other efforts following the promulgation of revisions to
the final rule in order to ensure its smooth implementation. MSHA's
implementation initiatives will require a considerable commitment of
Agency resources and personnel.
Additional rulemaking priorities which will consume significant
agency resources are the respirable coal mine dust rules. MSHA's
proposed rule for the ``Determination of Concentration of Respirable
Coal Mine Dust'' (Single Sample) would determine that the average
concentration of respirable dust to which each miner in the active
workings of a coal mine is exposed can be accurately measured over a
single shift. 65 FR 42068 (July 7, 2000). The related ``Verification of
Underground Coal Mine Operators'' Dust Control Plans and Compliance
Sampling for Respirable Dust'' (Plan Verification) would require mine
operators to verify and periodically monitor, through sampling, the
effectiveness of the dust control parameters for each mechanized mining
unit (MMU) specified in the mine ventilation plan. 65 FR 42122 (July 7,
2000). The Plan Verification proposed rule would significantly improve
miners' health protection by ensuring that ventilation plans were
verifiable and implemented, thereby limiting the exposure of individual
miners to respirable coal mine dust. In combination, these rules would
comprise MSHA's revised program to meet the Mine Act's Sec. 202(b)(2)
requirement that miners' exposure to respirable coal mine dust be
maintained at or below the applicable standard on each shift. 30 U.S.C.
842(b)(2).
Because of the significant public reaction and comment to these
proposals, and while waiting for the availability of a Personal Dust
Monitor, MSHA has indefinitely extended the comment period for these
rules. Plan Verification, 68 FR 39881 (July 3, 2003); Single Sample, 68
FR 47886 (August 12, 2003). MSHA is awaiting the National Institute for
Occupational Safety and Health's (NIOSH's) development and evaluation
of a Personal Dust Monitor, which MSHA believes could be effective in
helping to provide a real-time read-out of dust exposure, thus helping
to prevent the development of black lung disease in miners. In-mine
testing and evaluation of the devices has begun and will most likely
continue into 2005.
Although not listed in the Department's Regulatory Plan, the
Secretary has identified several other rulemakings for development that
``advance the Department's goals'' and are consistent with each
agency's ``available resources.'' Department of Labor Unified Agenda,
68 FR 73196 (December 22, 2003). For MSHA, these rules, enumerated in
the Department's most recent Agenda, include rulemakings on high
voltage continuous mining machines, id. at 73213, shaft and slope
construction worker training,
[[Page 67690]]
ibid., and electrical product approval, id. at 73214.
On July 16, 2004, 69 FR 42812 (July 16, 2004) MSHA published a
proposed rule, ``High-Voltage Continuous Mining Machines,'' that would
establish design requirements for approval of high-voltage continuous
mining machines operating in face areas of underground mines. The
proposed rule would also establish new mandatory electrical safety
standards for the installation, use, and maintenance of high-voltage
continuous mining machines used in underground coal mines. These
provisions would enable mines to utilize high-voltage continuous mining
machines with enhanced safety protection from fire, explosion, and
shock hazards. Existing 30 CFR 75.1002, Installation of electric
equipment and conductors; permissibility, does not permit the use of
high-voltage continuous mining machines in certain areas of the mine.
Currently, mine operators must petition MSHA for a modification of the
standard, pursuant to section 101(c) of the Mine Act, 30 U.S.C. 811(c),
prior to using high-voltage continuous mining machines. From January
1997 to October 2003, MSHA granted 38 petitions for the use of high-
voltage continuous mining machines. Others are currently being
processed. MSHA is confident that promulgation of this rule will
improve miners' safety while eliminating the need to proceed through
the often burdensome administrative process associated with granting a
petition to permit the use of high-voltage continuous mining machines.
MSHA is currently holding public hearings on this proposed rule and, as
with the other rulemakings discussed above, MSHA anticipates a
considerable amount of resources will be committed to promulgating the
high-voltage continuous mining machine standards.
On July 16, 2004, 69 FR 42842, following a record of fatalities
attributable to the lack of training received by shaft and slope
construction workers, MSHA published a proposed rule entitled
``Training Standard for Shaft and Slope Construction Workers at
Underground Mines'' that would remove existing language which exempts
shaft and slope construction workers from the requirement to receive
Part 48 training. Under the proposal, shaft and slope construction
workers would be treated like extraction and production miners in that
they would be required to receive Part 48 training. This rule will help
eliminate fatalities such as the October 4, 1991, fatality at the Gary
No. 50 Mine in Pineville, West Virginia; the May 17, 1996, fatality at
the Wabash Mine in Keensburg, Illinois; and the January 22, 2003,
fatalities at the McElroy Mine in Marshall County, West Virginia.
Finally, MSHA has determined that updating its regulations on
electrical product approval is a priority. Part 18 of 30 CFR, entitled
``Electric Motor-Driven Mine Equipment and Accessories,'' sets forth
the requirements to obtain MSHA approval of electrically operated
machines and accessories intended for use in underground mines, as well
as other related matters, such as approval procedures, certification of
components, and acceptance of flame-resistant hoses and conveyor belts.
Aside from minor modifications, Part 18 has remained unchanged since
its promulgation in 1968 under the Federal Coal Mine Safety Act of
1952. MSHA's update of these outdated regulations will improve the
efficiency of the approval process, recognize new technology, and add
quality assurance provisions.
MSHA expects that the above rulemakings will consume the majority
of its rulemaking resources for the foreseeable future. In addition to
the resources that will be required to promulgate the foregoing
priority rulemakings, however, MSHA is expending resources to
facilitate implementation of its new final rules. For example, MSHA's
implementation of the Occupational Exposure to Noise rule is consuming
a fair amount of the Agency's resources, including many of the same
personnel who would be required to assist in completion of an Air
Quality standard. In an effort to improve understanding of and
compliance with the Noise rule, MSHA has conducted numerous stakeholder
meetings, developed new compliance assistance documents, updated
existing compliance assistance documents, and conducted training of
some of its inspectorate. MSHA is in the process of providing
stakeholder training, additional training to its inspectorate, updating
its procedural guides, and evaluating new noise technologies. MSHA will
continue to allocate resources to implement the Noise rule until it is
confident that mine operators have received sufficient compliance
assistance, miners understand their rights, and MSHA inspectors have
received the necessary training to properly enforce the standard.
With the January 19, 2001, promulgation of the coal diesel
particulate matter rule, MSHA is taking efforts similar to those
described in the preceding paragraph to ensure that its stakeholders
understand the coal diesel particulate matter rule, and MSHA
inspectorate are trained to properly enforce the rule. Like the Noise
implementation efforts, MSHA anticipates that implementation of the
coal diesel particulate matter rule will require a considerable
commitment of Agency resources and personnel for the foreseeable
future.
It should also be noted that MSHA is publishing a Request for
Information on respirable crystalline silica to determine an
appropriate course of action in response to respirable crystalline
silica exposures. A new respirable crystalline silica standard was also
proposed as part of the Air Quality rule. Thus, while a comprehensive
Air Quality rulemaking will no longer be pursued by MSHA, significant
elements of the proposed rule continue to be addressed in incremental,
more manageable portions by individual rulemakings. MSHA will continue
to review information related to individual substances to determine
whether there is evidence of significant risk. If so, MSHA will
evaluate whether to engage in a substance-specific rulemaking.
2. Impact of Resuming the Air Quality Rulemaking
The impact of resuming the Air Quality rulemaking would be
detrimental to MSHA's currently designated priority rulemakings. The
resources that would be required to resume the Air Quality rulemaking
would be enormous and would come at the expense of the rulemakings
cited in the preceding pages. MSHA's toxic substance and harmful
physical agent rulemakings have historically been resource-intensive
and protracted, even when not laden with the legal uncertainties that
encumber the Air Quality rulemaking. Because MSHA is required to
present evidence that the existing PEL for each substance or
contaminant exposes miners to a significant risk of material impairment
of health or functional capacity, developing a judicially sustainable
final rule would be a very lengthy and complex endeavor. The scientists
that would be required to gather, review and analyze the immense amount
of scientific data would have to be reassigned from other health
rulemakings. The Agency has also lost a considerable degree of
institutional knowledge relating to the proposed rule due to
retirement. As stated elsewhere in this document, MSHA employs a
limited number of staff assigned exclusively to rulemaking activities,
and it is nearly impossible for these employees to advance
simultaneously on numerous complex rulemaking fronts. Many of the same
employees, including MSHA's economists,
[[Page 67691]]
technical support specialists, standard and regulation drafting
personnel, and lawyers are required in both health and safety
rulemakings, and the orderly implementation of new rules. These
employees are also engaged in assisting in the day-to-day functioning
of the Agency by undertaking such tasks as replying to incoming
correspondence and aiding field personnel in appropriately carrying out
the mandates of the Mine Act. Thus, rulemaking on even one substance or
component proposed in the Air Quality rule would require reassignment
of personnel and resources, thus delaying completion of other rules and
impeding implementation of new rules.
3. Use of a Non-Regulatory Approach
At the present time, MSHA is using non-regulatory approaches to
address the hazards miners may encounter from contact with the
substances or contaminants that would have been regulated by the Air
Quality rule. MSHA continues to introduce and promote educational and
outreach campaigns to inform stakeholders about health and safety
issues of which they should be aware. One such notable educational
campaign is the Agency's initiative to alert miners and mine operators
about the hazards associated with asbestos exposure. In January 2000,
MSHA initiated comprehensive compliance assistance related to asbestos
exposure. This compliance assistance included activities such as
training MSHA inspectors to recognize naturally occurring asbestos and
to sample where it is suspected; assisting in the development of clean-
up and monitoring procedures; discussing hazards of asbestos exposure
with miners and the mine operator; providing mine operators with names
of accredited laboratories that perform asbestos analysis; assisting in
the implementation of a respiratory protection program; and instructing
in recognition and avoidance of asbestos.
In addition to the asbestos compliance assistance activities, MSHA
maintains a practice of informing mine operators by written
communication when an MSHA asbestos sample taken at their facility is
found to be over the OSHA PEL of 0.1 fiber per cubic centimeter (f/cc).
Another current MSHA practice is to encourage mine operators to comply
with the OSHA asbestos PEL. MSHA Program Information Bulletin No. P-
0003, ``Potential Exposure to Airborne Asbestos on Mining Properties''
(March 2, 2000). Though MSHA has no authority to enforce the OSHA 0.1
f/cc PEL, the Agency continues to take a proactive approach to
educating miners and mine operators about the health risks associated
with exposure to asbestos exceeding the 0.1 f/cc limit. MSHA continues
to encourage miners and mine operators to take precautionary measures
to avoid asbestos exposure.
MSHA has posted valuable information addressing asbestos hazards in
the mining industry on its Web site, including links to numerous
outside resources. This information can be accessed at MSHA's source
page for asbestos, http://www.msha.gov/asbestos/asbestos.htm.
Consistent with its Occupational Illness and Injury Prevention
Program, MSHA's Web site also contains information related to the
prevention of various other health and safety illnesses and injuries.
For example, MSHA's Web site includes health alerts that address
substances or topics proposed in the Air Quality rule. These alerts
include: Working with Mercury; Silica Exposure of Underground Coal
Miners; Silica Exposure of Surface Coal Miners; Working in Confined
Spaces; and Welding Fumes Sampling. Topic-specific health documents
include Arsenic; Effects of Blasting on Air Quality; Carbon Monoxide;
Hazardous Chemicals at Work; and Respiratory Protection. MSHA also
posts on its Web site ``best practices'' developed by volunteer teams
of stakeholders. Best practices are intended to provide practical,
effective solutions to health and safety risks that might be found in
the mining environment. Recent best practice recommendations address
``Reducing Silica Exposure'' and ``Underground Air Quality.'' These
documents can be accessed through MSHA's Web site, http://www.msha.gov.
Given the current circumstances, MSHA believes that a non-
regulatory approach is the most appropriate manner to address the
hazards addressed in the Air Quality proposed rule. MSHA will continue
to assess the risks posed by the contaminants included in the Air
Quality proposed rule, and will ascertain whether rulemaking for any
individual contaminant is appropriate.
4. Meeting With the UMWA
On May 5, 2004, at the request of the UMWA, MSHA and the Union met
to discuss issues concerning Air Quality. The parties generally
discussed whether there was a need for MSHA to more regularly assess
and update toxic substances standards. In this regard, the parties
discussed the Agency's capability of doing so, the resources that would
be involved, and whether there was a suggested process for doing so.
The parties also discussed the appropriate role of NIOSH's recommended
exposure levels (RELs) versus the appropriate role of the ACGIH's TLVs.
Although the UMWA did not have a specific proposal for addressing the
outstanding issues related to Air Quality, MSHA and the UMWA agreed to
exchange information and to further explore and deliberate options
available to the Agency to address those outstanding issues.
D. Conclusion
In summary, the Mine Act grants the Secretary of Labor exclusive
authority to determine that a proposed rule should be withdrawn, so
long as she publishes reasons for her decision not to promulgate the
rule. With the September 2002 publication of a withdrawal notice, the
Secretary identified three specific reasons for her determination that
the Air Quality rulemaking should not continue: the effect of AFL-CIO,
changes in Agency priorities, and the staleness of the rulemaking
record. Each of these reasons was necessarily connected to the enormous
commitment of resources that resumption of the rulemaking would
require. The AFL-CIO holding illustrates that MSHA would have had to
expend a substantial amount of resources to ensure that a final rule
would not result in MSHA's susceptibility to a formidable, vigorous,
and possibly successful legal challenge. With respect to the Agency's
change in priorities, the Mine Act affords the Secretary broad
authority to set and order her rulemaking priorities. The Secretary
properly exercised that discretion by determining not to proceed with
the Air Quality rulemaking, particularly in light of the resources that
would be consumed by such a rulemaking.
MSHA has also identified several reasons why it continues to devote
its resources to current rulemaking priorities, and the determination
that a non-regulatory approach is reasonable in light of existing
circumstances. For the reasons stated, the Secretary has concluded that
other rulemakings, most notably the metal/nonmetal diesel particulate
matter, respirable coal mine dust, and asbestos rules, constitute
MSHA's highest priorities and that the Agency's resources should be
focused accordingly. The progress of MSHA's higher priority rulemakings
would be stymied by the tremendous quantity of resources that would be
redirected toward an Air Quality rulemaking.
Although there are potentially thousands of health and safety risks
that
[[Page 67692]]
MSHA could regulate, it must focus its resources on risks that are
significant, that the Agency has deemed to be the highest priorities,
and that the Secretary has found to be appropriate. If data or
information provides evidence of a significant risk that MSHA has not
addressed, the Agency will evaluate whether rulemaking should be
initiated for the individual substance or agent. This document does not
preclude any Agency action that the Secretary may find appropriate in
the future.
For the reasons stated herein, with the exception of provisions
published at 59 FR 8318 (February 18, 1994), the proposed rule is
withdrawn.
Signed at Arlington, Virginia, this 15th day of November, 2004.
David D. Lauriski,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 04-25678 Filed 11-18-04; 8:45 am]
BILLING CODE 4510-43-P
