MSHA Proposed Rule
Proposed Program Policy Letter on Samples Used To Determine the Respirable Dust Level When Quartz Is Present [11/23/1999]
[PDF Version]
Volume 64, Number 225, Page 65671-65673
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 70, 71 and 90
Proposed Program Policy Letter on Samples Used To Determine the
Respirable Dust Level When Quartz Is Present
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Request for comments.
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SUMMARY: The Mine Safety and Health Administration (MSHA) requests
comments on a draft Program Policy Letter (PPL) regarding the samples
that are used to determine the reduced respirable coal mine dust
standard when more than 5.0 percent of quartz is present in the mine
atmosphere. Under the PPL, the samples used to determine a reduced
standard would be MSHA samples exclusively rather than a combination of
MSHA and mine operator samples. MSHA is publishing this Notice to
afford an opportunity for interested persons to comment on the draft
PPL before it is issued.
DATES: Submit comments on or before December 23, 1999.
ADDRESSES: Send comments on the proposed policy--
(1) By mail to MSHA, Office of Standards, Regulations, and
Variances, 4015 Wilson Boulevard, Room 631, Arlington, VA 22203;
(2) By facsimile to MSHA, Office of Standards, Regulations, and
Variances, 703-235-5551; or
(3) By electronic mail to comments@msha.gov. If possible, please
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supplement written comments with computer files on disk; contact the
Agency with any format questions.
FOR FURTHER INFORMATION CONTACT: Ronald J. Schell, Division of Health,
Coal Mine Safety and Health, (703) 235-1358. You may obtain copies of
this Notice in alternative formats by calling the MSHA Office of
Standards, Regulations, and Variances at (703) 235-1910. The
alternative formats available are large print or electronic file on a
computer disk. The proposed rule also is available on the Internet at
http://www.msha.gov/REGSINFO.HTM.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
The information collection requirements associated with
transmitting mine operator quartz samples to us (MSHA) are approved by
the Office of Management and Budget (OMB) under OMB control number
1219-0011. The Program Policy Letter (PPL) would reduce the number of
mine operator samples submitted. The paperwork burden on the mine
operators would be further reduced since mine operators would no longer
be required to complete and submit the dust data cards that accompany
quartz samples.
II. Background
We (MSHA) update our policies for enforcement of safety and health
regulations through PPLs. PPLs explain or clarify how regulations work
or apply in a particular situation. Once adopted, the policy statements
are published in the MSHA Program Policy Manual and given wide
distribution.
By this Notice, we are affording you the opportunity to comment on
a draft PPL that would change the current policy for determining how
the respirable coal mine dust standard is set when respirable dust
samples indicate more than 5.0 percent quartz is present in the mine
environment. Under this revised policy, only samples taken by MSHA,
rather than a combination of MSHA and mine operator samples, would be
used to establish the reduced standard due to the presence of quartz.
The text of the draft PPL follows the discussion of the draft
policy below. We will consider all timely submitted comments before
finalizing the PPL.
III. Discussion of Draft Policy
The standard set out in 30 CFR parts 70 and 71 requires that the
average concentration of respirable coal mine dust be continuously
maintained at or below 2.0 milligrams per cubic meter of air (2.0 mg/
\3\). However, when the respirable dust in the mine atmosphere of the
active workings contains more than 5.0 percent quartz, the 2.0 mg/m\3\
standard must be lowered under a formula set forth in 30 CFR 70.101,
71.101 and 90.101.<SUP>1</SUP> That formula provides that the reduced
standard be computed by dividing the percent of quartz into the number
ten.
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\1\ Under MSHA regulations, the standard for intake air and for
miners who have exercised rights under Part 90 is 1.0 mg/m\3\. Those
standards are also lowered if quartz exceeds 5.0 percent.
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Under existing policy, MSHA samples can be averaged with mine
operator samples to determine the percent of quartz in the mine
environment. That policy is outlined in Chapter 1 of MSHA's Coal Mine
Health Inspection Procedures Handbook. That policy provides that if an
MSHA respirable dust sample indicates the presence of quartz in excess
of 5.0 percent the mine operator is notified of the result and provided
an opportunity to collect an optional respirable dust sample from the
affected area or occupation. If the operator collects such a sample,
and provided it has sufficient weight gain, the percent quartz in that
sample is averaged with the results of the MSHA sample to determine the
percent of quartz present in the mine environment. If no optional
sample is submitted, the reduced standard is established based on the
MSHA sample.
When an operator sample is submitted and the results of the MSHA
and operator samples differ by more than <plus-minus> 2.0 percent, the
mine operator is provided the option of taking a second respirable coal
mine dust sample. If the mine operator takes the second optional
sample, the results are averaged with the results of the other two
samples. When the average percent quartz in the three samples is
greater than 5.0 percent, that average is used to compute the reduced
respirable dust standard.
The current policy of allowing mine operators the option of taking
up to two additional samples to determine the percent of quartz in the
mine atmosphere began in 1986. The policy was implemented to address
the concern of mine operators that reduced standards were being
established based on a single MSHA sample which may not be
representative of the level of quartz in the mine. During that time
period, MSHA sampled each mechanized mining unit annually. Accordingly,
operators were concerned that reduced standards were being established
based on that single inspection and remained in place until MSHA
conducted another inspection the following year. As a result, the
current policy was put into effect to allow mine operators to take up
to two additional samples which would be averaged with the MSHA sample
to determine the percent of quartz.
The report of the Secretary of Labor's Advisory Committee on the
Elimination of Pneumoconiosis Among Coal Mine Workers, which was issued
in October 1996, found that one of MSHA's highest priorities should be
to restore confidence in the respirable coal mine dust sampling
program. To achieve this objective, the Advisory Committee recommended
that we assume responsibility for all compliance sampling from mine
operators. We are working toward implementation of that recommendation.
As part of our plan, we are proposing to issue this PPL which would
establish MSHA sampling as the exclusive basis for determining the
reduced standard, rather than using a combination of MSHA and mine
operator sampling.
Under the proposed PPL, we would require three valid MSHA samples
to set a reduced standard. In the near future, we intend to sample MMUs
at underground coal mines each bimonthly period, and sample surface
mines twice each year. When initial samples show potential overexposure
to quartz, we will sample at a greater frequency to ensure that miners
will be protected. This represents a significant increase in MSHA
sampling that will allow us to determine the reduced standard based on
multiple MSHA samples.
Since MSHA intends to sample at underground mines on a bimonthly
basis and at each surface mine twice each year, the proposed PPL would
continue to address the mine operators' previous concern that a reduced
standard not be established on the results of a single MSHA sample.
Instead, the standards would always be based on the average of three
MSHA samples. This PPL would also address another concern of mine
operators that their samples may be voided because there is
insufficient weight gain on the filter to conduct a quartz analysis.
Since MSHA cassettes are pre- and post-weighed, samples taken on these
cassettes can be analyzed for quartz at a very low weight gain. Since
all samples would be MSHA samples under this PPL, preweighed filters
would be used in all instances.
As previously mentioned, the proposed PPL also addresses the
recommendations of the Advisory Committee that compliance action be
based solely on MSHA sampling results and reduces the burden and cost
on mine operators to take and submit samples to MSHA. Under the PPL, we
would average the percent of quartz
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present in the three most recent MSHA respirable coal mine dust samples
to determine the respirable coal mine dust standard when quartz is
present. MSHA would also begin reporting quartz levels to the tenth of
a percent (truncating to the tenth). This is the result of the improved
accuracy of the quartz analysis system related to the use of respirable
dust sampling filters pre-weighed to the thousandth of a milligram
(0.001 mg.)
While MSHA intends to use agency samples alone to establish reduced
standards, we recognize that there will be a transition period at mines
that currently have greater than 5.0 percent quartz in the mine
atmosphere. The transition period will last until MSHA has taken three
samples under this PPL. During this transition, on an entity (MMU, DA,
or DWP) currently on a reduced standard, a new standard will be
established by averaging the results of the first two MSHA samples
taken under this PPL with the quartz level associated with the current
reduced standard. Where we have taken fewer than two samples under this
PPL, the existing reduced standard will continue to apply.
For example, assume an MMU has a reduced standard of 1.0 mg/m\3\
with 10.0 percent of quartz. If our first sample under the new policy
results in a quartz percentage of 7.2 percent, the existing 1.0 mg/m\3\
would continue to apply. If the next MSHA sample indicates a quartz
percentage of 16.1 percent quartz, the average quartz would be (10.0 +
7.2 + 16.1) <divide> 3 or 11.1. This results in a 0.9 mg/m\3\ reduced
standard (10/11.1 = 0.9).
For sampling entities (MMU, DWP, DA) not currently on a reduced
standard, we would collect three separate samples and analyze them for
quartz content to determine if a reduced standard was necessary.
IV. Draft Program Policy Letter
Subject
Change in the existing policy for 30 CFR 70.101, 71.101 and 90.101.
Scope
This Program Policy Letter (PPL) applies to mine operators,
including independent contractors, and Mine Safety and Health
Administration (MSHA) enforcement personnel.
Purpose
This PPL changes the way that a reduced standard is established
when respirable coal mine dust samples contain quartz in excess of 5.0
percent in the mine environment. Only samples taken by MSHA, rather
than a combination of MSHA and mine operator samples, will be used to
establish the reduction in the respirable coal mine dust standard due
to the presence of quartz.
Policy
Respirable Dust Standard When Quartz is Present.
The lowering of the respirable dust standard when more than 5.0
percent of quartz is present will be based on the average percent of
quartz in the three most recent MSHA respirable dust samples (Example
1). The standard at a sampling entity on a reduced standard on the
effective date of the PPL will be based on the quartz level associated
with the existing standard and the results of the first two MSHA
samples taken under this PPL. Where we have taken fewer than two
samples under this PPL, the existing reduced standard will continue to
apply (Example 2).
Example 1--Mine ``A'' MMU 001-0 is on the 2.0 mg/m\3\ standard. Our
first sample under the new policy results in a quartz level of 10.2
percent, the existing 2.0 mg/m\3\ would continue to apply. The next
MSHA sample indicates a quartz level of 12.1 percent, the 2.0 mg/m\3\
standard would continue to apply. The third MSHA sample indicates a
quartz level of 11.3 percent. The new standard established would be
based on (10.2 + 12.1 + 11.3) <divide> 3 or 11.2 percent quartz. This
results in a 0.9 mg/m\3\ standard (10/11.2 = 0.9).
Example 2--Mine ``B'' MMU 002-0 is on a reduced standard of 1.0 mg/
m\3\ with 10.0 percent of quartz. MSHA's first sample results in a
quartz percentage of 7.2 percent, the existing 1.0 mg/m\3\ standard
would continue to apply. The next MSHA sample indicates a quartz
percentage of 16.1 percent. The new standard established would be based
on (10.0 + 7.2 + 16.1) <divide> 3 or 11.1 percent quartz. This results
in a 0.9 mg/m\3\ standard (10/11.1 = 0.9).
Effective Date of a New Reduced Standard
a. A new lower standard due to quartz is effective seven days after
the date that we mail the notice of the lower standard to the mine
operator. This provides notice of the new reduced standard to the mine
operator and allows changes in dust control to be made to achieve
compliance prior to sampling.
b. A new higher standard for quartz is effective on the date that
we mail the notice of the higher standard.
c. Where the effective date of the new standard for quartz occurs
during the time that the mine operator is conducting required sampling
for respirable coal mine dust, the higher of the two standards will be
effective during the required sampling. (The required samples are
bimonthly sampling, requests from MSHA for five additional samples, and
abatement samples.) The new standard will be effective when the
required sampling is completed, with one exception. When abatement
sampling shows continued noncompliance, the new standard becomes
effective before any additional sampling is conducted.
Example--A mechanized mining unit (MMU) has a standard of 2.0 mg/
m\3\. A new lower standard of 1.7 mg/m\3\ is in the process of being
set. However, the mine operator has taken at least one bimonthly sample
before the effective date of the change. The higher standard (2.0 mg/
m\3\) applies. The new lower standard (1.7 mg/m\3\) becomes effective
at the completion of the bimonthly sampling requirement.
Example--We request a mine operator to submit five additional
samples for a designated area. The existing standard is 1.7 mg/m\3\. A
new higher standard of 2.0 mg/m\3\ is in the process of being set.
However, the mine operator has taken at least one additional sample
before being notified of the change.
The higher standard (2.0 mg/m\3\) applies. The new higher standard
(2.0 mg/m\3\) becomes effective on the date of the mailing.
Effective Date
After considering comments from the public and making appropriate
revisions, we anticipate that this PPL would take effect 30 days from
the date of publication of the final PPL and would be incorporated into
MSHA's Program Policy Manual.
Authority: Section 103(a) of the Federal Mine Safety and Health
Act of 1977.
Dated: November 16, 1999.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
[FR Doc. 99-30495 Filed 11-22-99; 8:45 am]
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