[Federal Register: July 18, 2002 (Volume 67, Number 138)]
[Rules and Regulations]
DEPARTMENT OF LABOR
Mine Safety and Health
30 CFR Part 57
Diesel Particulate Matter Exposure of Underground Metal and Nonmetal
AGENCY: Mine Safety and Health Administration
ACTION: Final rule; stay of
SUMMARY: The Mine Safety and Health Administration is
staying the effectiveness of certain provisions of the final rule addressing
``Diesel Particulate Matter Exposure of Underground Metal and Nonmetal Miners,''
published in the Federal Register on January 19, 2001 (66 FR 5706) and amended
on February 27, 2002 (67 FR 9180).
This document stays the effectiveness
of 30 CFR 57.5060(d), 57.5060(e), 57.5060(f), and 57.5062. Section 57.5060(d)
permits miners to work in areas where diesel particulate matter exceeds the
applicable concentration limit with advance approval from the Secretary; Sec.
57.5060(e) prohibits the use of personal protective equipment to comply with the
concentration limits; and Sec. 57.5060(f) prohibits the use of administrative
controls to comply with the concentration limits. Section 57.5062 addresses the
diesel particulate matter control plan.
Effective July 20, 2002, MSHA is staying Sec. 57.5060(d), Sec. 57.5060(e), Sec.
57.5060(f), and Sec. 57.5062 until completion of further rulemaking to address
FOR FURTHER INFORMATION CONTACT :
Marvin W. Nichols, Director; Office of Standards, Regulations, and Variances;
MSHA, 1100 Wilson Boulevard, Room 2313, Arlington, Virginia 22209-2296. Mr.
Nichols can be reached at Nichols.Marvin@dol.gov (e-mail),
202-693-9442 (Voice), or 202-693- 9441 (fax).
On January 19, 2001, MSHA
published a final rule addressing diesel particulate matter (DPM) exposure of
underground metal and nonmetal miners (66 FR 5706). The final rule establishes
new health standards for underground metal and nonmetal mines that use equipment
powered by diesel engines and, among other things, requires operators of
underground mines to train miners about the hazards of being exposed to DPM. The
effective date of the rule was listed as March 20, 2001 (66 FR 5706). Section
57.5060 of the rule establishes an interim concentration limit of 400 micrograms
of total carbon per cubic meter of air to become applicable after July 19, 2002,
and a final concentration limit of 160 micrograms to become applicable after
January 19, 2006 (66 FR 5706, 5708, 5907).
January 29, 2001, Anglogold (Jerritt Canyon) Corp. and Kennecott Greens Creek
Mining Company filed a petition for review of the rule in the District of
Columbia Circuit. On February 7, 2001, the Georgia Mining Association, the
National Mining Association, the Salt Institute, and MARG Diesel Coalition filed
a similar petition in the Eleventh Circuit. On March 14, 2001, Getchell Gold
Corporation petitioned for review of the rule in the District of Columbia
Circuit. The three petitions have been consolidated and are pending in the
District of Columbia Circuit. The United Steelworkers of America (USWA) has
intervened in the Anglogold case.
challenges were pending, the Anglogold petitioners filed with MSHA an
application for reconsideration and amendment of the final rule and to postpone
the effective date of the final rule pending judicial review. The Georgia Mining
petitioners similarly filed with MSHA a request for an administrative stay or
postponement of the effective date of the rule.
On March 15, 2001 MSHA delayed the effective
date of the rule until May 21, 2001, in accordance with a January 20, 2001
memorandum from the President's Chief of Staff (66 FR 15032). The delay was
necessary to give Department officials the opportunity for further review and
consideration of new regulations. Ibid. On May 21, 2001 (66 FR 27863), MSHA
published a notice in the Federal Register delaying the effective date of the
final rule until July 5, 2001. The purpose of this delay was to allow the
Department the opportunity to engage in further negotiations to settle the legal
challenges to this rule.
II. Outcome of First Partial Settlement
As a result of a partial
settlement agreement, MSHA published two documents in the Federal Register on
July 5, 2001, addressing the January 19, 2001 DPM final rule. One document (66
FR 35518) delayed the effective date of Sec. 57.5066(b) regarding the evidence
and the tagging provisions of the Maintenance standard; clarified the effective
dates of certain provisions of the final rule; and gave correction amendments.
The second document (67 FR 9180) addressed a
proposed rule to clarify Sec. 57.5066(b)(1) and (b)(2) of the maintenance
standards and to add a new paragraph (b)(3) to Sec. 57.5067 regarding the
transfer of existing equipment from one underground mine to another underground
mine. MSHA finalized these changes to the January 19, 2001 rule and published
them in the Federal Register on February 27, 2002 (67 FR 9180). The final rule
was effective on March 29, 2002.
agreed to conduct joint sampling with industry and labor at 31 underground mines
to determine existing concentration levels of DPM; assess the performance of the
SKC sampler and the NIOSH Analytical Method 5040; assess the feasibility of
achieving compliance with the standard's concentration limits at the 31 mines;
and, to assess the impact of interferences on the sample in the metal and
nonmetal underground mining environment before the limits established in the
final rule become effective. Sampling and data analyses are completed, and MSHA
is in the process of developing the final report.
of Second Partial Settlement
Settlement negotiations continued on the
remaining unresolved issues in the litigation. On July 15, 2002, the parties
signed an agreement that is the basis for this Federal Register document
delaying certain effective dates.
As of July
20, 2002, MSHA will enforce the following provisions of the final rule as
published on January 19, 2001 (66 FR 5706): Sec. 57.5060(a), addressing the
interim concentration limit of 400 micrograms of total carbon per cubic meter of
air; Sec. 57.5061, addressing compliance determinations; and Sec. 57.5071,
addressing environmental monitoring. MSHA will continue to enforce Sec. 57.5065,
Fueling practices; Sec. 57.5066, Maintenance standards; Sec. 57.5067, Engines;
Sec. 57.5070, Miner training; and Sec. 57.5075, Diesel particulate records, as
they relate to the requirements of the rule that are in effect on July 20, 2002.
The settlement agreement provides as follows:
To settle the DPM litigation now
pending in the D.C. Circuit, the parties agree as follows:
The industry parties contend that the interim
standard of 400 micrograms per cubic meter is not justified or feasible to
achieve at the majority of mines with engineering controls alone, and will pose
significant compliance problems and necessitate the availability of
agency-approved time extensions, based on individual mine conditions. They
further contend that the final standard of 160 micrograms per cubic meter of air
must be revoked because it is not feasible under any foreseeable circumstances,
even taking into consideration its delayed implementation. The United
Steelworkers of America (``the union'') contend that the interim standard is
feasible and that it should remain in effect. They also contend that achievement
of the 160 micrograms per cubic meter of air standard is feasible. In light of
these divergent positions, and in consideration of practical compliance
questions raised during the joint industry/labor/government study, the parties
will take the steps set forth below.
I. MSHA Actions With
Respect to the DPM Standard for Underground Metal and Nonmetal Mines
Sec. 57.5060 Limit on Concentration of Diesel
a. The interim
concentration limit restricting total carbon to 400 micrograms per cubic meter
of air becomes effective on July 20, 2002.
b. As discussed below, MSHA will issue
citations for violations of the interim concentration limit only after MSHA and
NIOSH are satisfied with the performance characteristics of the SKC sampler and
the availability of practical mine worthy filter technology and MSHA has had the
opportunity to train inspectors, conduct baseline sampling and provide
compliance assistance at underground metal and nonmetal mines using
diesel-powered equipment. MSHA will consult with NIOSH, industry and labor
representatives on the performance of the SKC sampler and the availability of
practical mine worthy filter technology. The following timetable is MSHA's
current projection for its efforts to implement the interim concentration limit:
July 20, 2002-July 19, 2003--MSHA MNM
compliance specialists will provide compliance assistance to underground MNM
operators covered by the standard. Compliance assistance will be in the form of
DPM baseline sampling (compliance assistance only; results not citable) and
information on feasible DPM controls, including practical mine worthy filters.
During this period operators shall develop and implement a suitable written
compliance strategy for their mines. MSHA will retain the discretion to take
appropriate enforcement actions against operators who refuse either to cooperate
in good faith with MSHA's compliance assistance, or to take good faith steps to
develop and implement a written compliance strategy for their mines. MSHA will
provide guidance on steps an operator may take--such as sampling to determine
DPM levels, developing a plan to control emissions, and ordering engineering
controls--to demonstrate good faith and thereby avoid citations.
After July 19, 2003--MSHA MNM compliance
specialists will issue citations for failure to comply with the 400 micrograms
per cubic meter of air interim limit.
Throughout this implementation schedule, MSHA will continue to work with NIOSH
to make sure the performance characteristics of the SKC sampler are satisfactory
and with equipment manufacturers, mine operators, and representatives of miners
to improve practical mine worthy filter technology, including the availability
of after- treatment control technology for diesel powered engines, particularly
for engines of less than 50 hp and 250 hp or greater.
d. After appropriate consultations and
clearances, MSHA will publish a notice of proposed and expedited rulemaking to
change the surrogate to elemental carbon for both the interim standard and the
final standard which takes effect after January 19, 2006. Among the factors to
be considered, MSHA will consider technological and economic feasibility in
determining an appropriate final standard including the data from the Joint
MSHA/Industry Study: Determination of DPM Levels in Underground Metal and
Nonmetal Mines (Joint Study).
57.5060(c) allows mine operators to apply for additional time to come into
compliance with the final concentration limit due to technological constraints.
MSHA will publish a notice of proposed and expedited rulemaking, proposing to
adapt this provision to the interim concentration limit as well, include
consideration of economic feasibility, and to allow for annual renewals of such
special extensions, upon application to and approval by the Secretary. It is
anticipated that this rulemaking will be concluded before July 20, 2003.
f. Section 57.5060(d) permits miners engaged
in specific activities such as inspection, maintenance, or repair activities,
with the advance approval of the Secretary, to work in concentrations of DPM
that exceed the interim and final limits. Section 57.5060(e) limits the
circumstances under which personal protective equipment may be used to comply
with the DPM concentration limits and Sec. 57.5060(f) prohibits the use of
administrative controls. In conjunction with the rulemaking for changing the
surrogate, MSHA will publish a notice of proposed rulemaking to amend these
three provisions, as follows: MSHA will continue to require mine operators to
establish, use and maintain all feasible engineering control methods. Consistent
with MSHA's longstanding enforcement policy for its existing exposure-based
standards applicable to metal and nonmetal mines, MSHA will require mine
operators to supplement feasible engineering and administrative control methods
with personal protective equipment, in the event that controls do not reduce the
concentration level to the required limit or are not feasible or do not produce
significant reductions in DPM exposures. As a part of this rulemaking, MSHA will
consider the advisability of requiring periodic application to the Secretary,
before respirators are used. Rotation of employees will not be allowed as an
administrative control for compliance with this standard.
Section 57.5061 Compliance Determinations
a. To implement Sec. 57.5061(a)
MSHA will consider a single personal sample an adequate basis for a compliance
determination. It is MSHA's intent to provide maximum assistance to operators to
help them achieve compliance with both the interim and final limits of the DPM
standard. When MSHA begins to fully enforce the DPM standard, it will issue a
citation as it does for all other contaminant sampling under the M/NM standards.
MSHA expects the mine operator to begin the abatement process by first looking
at routine steps to improve DPM exposure levels. MSHA will resample at the
request of an operator who has taken such abatement steps to see what progress
has been made to lower compliance levels. If an operator has taken additional
samples which indicate possible compliance, MSHA will resample with an
additional single sample and if that sample is in compliance MSHA will accept
that the violation has been abated. If routine and usually effective steps such
as improved maintenance, administrative controls or the implementation of a
standard filter program do not achieve abatement, MSHA, at the operator's
request, will assign the mine for a technical compliance evaluation. That
evaluation will include a mine visit, observation of mining equipment including
installed controls and multiple samples to determine what additional feasible
steps will achieve compliance or achieve substantial reductions toward
compliance. However, if Technical Support has previously evaluated the same
piece of equipment in substantially similar circumstances, it will make an
abbreviated evaluation of the steps needed to reasonably assure compliance.
b. MSHA will employ an enforcement policy for
the interim concentration limit that will use elemental carbon (EC) as an
analyte to ensure that a citation based on the 400 micrograms per cubic meter of
air limit of TC is valid and not the result of interferences. Under this policy,
MSHA would first develop an appropriate error factor to account for variability
in sampling and analysis from such things as pump flow rate, filters, and the
NIOSH 5040 method. If the TC measurement is below 400 micrograms per cubic meter
of air plus the error factor (for example, 440 if the error factor is determined
to be 10%), MSHA's policy would be not to issue a citation. MSHA will consult
with industry and labor representatives before establishing an appropriate error
c. If the TC measurement is above the
error factor level, however, MSHA would look at the EC measurement from the
sample, obtained through the NIOSH 5040 method, and multiply EC by a factor of
1.3 to produce a statistical estimate of what TC should be without
interferences. If the TC measurement is above this estimate, as a matter of
enforcement discretion, MSHA would not issue a citation when the EC measurement
times the multiplier is below the error factor level. (For example, 440 if the
error factor is determined to be 10%.)
multiplier that MSHA will use to estimate TC (i.e., EC x 1.3 = estimated TC) is
derived from NIOSH's determination that TC is 60-80% EC.
MSHA will announce its enforcement policy in a
program policy letter.
d. To implement Sec.
57.5061(c), MSHA will conduct personal sampling for purposes of making
compliance determinations for the interim and final concentration limits.
Section 57.5062 Diesel Particulate Matter Control Plan
Together with the proposed rulemaking for
changing the surrogate, MSHA will publish a notice of proposed rulemaking to
revise Sec. 57.5062.
Other Provisions of the DPM
While taking the steps
discussed above, MSHA will continue to enforce provisions of the final rule
currently in effect, which address fueling practices, maintenance of
diesel-powered equipment, engine requirements, miner training, and
recordkeeping. See 67 FR 9180 (Feb. 27, 2002); 66 FR 35518 (July 5, 2001).
II. Parties' Actions in Litigation
The parties note that provisions of the
DPM standard will not be deleted until they are modified or superseded by new
MSHA will inform the court of this
settlement agreement. The parties will subsequently file a signed
agreement dismissing the pending DPM litigation upon completion of the
rulemakings described in the settlement above (Case Nos. 01-1046, 01-1124, and
01-1146 (D.C. Cir.)) pursuant to Fed. R. App. P. 42(b). Each party will bear its
own costs and fees.
IV. Stay of Effectiveness
As a result of the parties' settlement
negotiations, MSHA has determined that the provisions subject to a stay should
be revised and has developed an enforcement policy for the interim concentration
limit that involves extensive compliance assistance. A stay of the provisions is
necessary to prevent confusion while MSHA carries out this enforcement policy. A
stay should not decrease protection of miners and may further a full settlement
of the court challenge. Accordingly, this stay meets the requirements of 5
U.S.C. 705 which states, ``When an agency finds that justice so requires, it may
postpone the effective date of action taken by it pending judicial review.'')
By a separate document in the Federal
Register, MSHA will initiate rulemaking on these provisions.
Dated: July 16, 2002.
Assistant Secretary of Labor for Mine Safety and Health.
Doc. 02-18310 Filed 7-17-02; 1:49 pm]
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