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[April 24, 2006 (Volume 71, Number 78)]
[Unified Agenda]
[Page 22921-22922]

Department of Labor (DOL)
Mine Safety and Health Administration (MSHA)
Final Rule Stage



Priority: Other Significant

Legal Authority: 30 USC 811; 30 USC 813

CFR Citation: 30 CFR 56; 30 CFR 57; 30 CFR 71

Legal Deadline: None

Abstract: MSHA's permissible exposure limit (PEL) for asbestos applies to surface (30 CFR part 56) and underground (30 CFR part 57) metal and nonmetal mines and to surface coal mines and surface areas of underground coal mines (30 CFR part 71) and is over 20 years old. MSHA proposed a rule to lower its permissible exposure limits (PEL) to the limits OSHA promulgated in 1994 in order to reduce the risk of miners developing asbestos-induced occupational disease. A report by the Office of the Inspector General (OIG) recommended that MSHA lower its existing PEL for asbestos to a more protective level, and address take- home contamination from asbestos. It also recommended that MSHA use Transmission Electron Microscopy to analyze fiber samples that may contain asbestos.

Statement of Need: Current scientific data indicate that MSHA's existing asbestos PEL is not sufficiently protective of miners' health. MSHA's asbestos regulations date to 1967 and are based on the Bureau of Mines (MSHA's predecessor) standard of 5 mppcf (million particles per cubic foot of air). In 1969, the Bureau promulgated a 2 mppcf and 12 fibers/ml standard. In 1970, the Bureau proposed to lower the standard to 5 fibers/ml, which was promulgated in 1974. MSHA issued its current standard of 2 fibers/ml in 1976 for coal mining (41 FR 10223) and 1978 for metal and nonmetal mining (43 FR 54064). During inspections, MSHA routinely takes samples, which are analyzed for compliance with its standard.

Other Federal agencies have addressed this issue by lowering their PEL for asbestos. For example, the Occupational Safety and Health Administration, working in conjunction with the Environmental Protection Agency, enacted a revised asbestos standard in 1994 that lowered the permissible exposure limit to an 8- hour time-weighted average limit of 0.1 fiber per cubic centimeter of air and the excursion limit to 1.0 fiber per cubic centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes. These lowered limits reflected newer information and studies on the asbestos- related disease risk to asbestos-exposed workers.

Summary of Legal Basis: Promulgation of this regulation is authorized by section 101 of the Federal Mine Safety and Health Act of 1977.

Alternatives: The Agency increased sampling efforts in an attempt to determine current miners' exposure levels to asbestos. In early 2000, MSHA began an intensive sampling effort at operations with potential asbestos exposure, including taking samples at existing vermiculite, taconite, talc, and selected other mines to determine whether asbestos is present and at what levels. While sampling, MSHA staff discussed with miners and mine operators the potential hazards of asbestos and the types of preventive measures that could be implemented to reduce exposures.

MSHA's proposed rule did not include standards to address take-home contamination from asbestos nor did MSHA propose to change its analytical method for asbestos. The final rule will be based, in part, on comments and testimony to the proposed rule, as well as MSHA samplng and inspection experience.

Anticipated Cost and Benefits: MSHA developed a preliminary regulatory economic analysis to accompany the proposed rules.

Risks: Miners could be exposed to the hazards of asbestos during mine operations where the ore body contains asbestos. There is also potential for exposure at facilities in which installed asbestos- containing material is present. Overexposure to asbestos causes asbestosis, lung cancer, mesothelioma, and other forms of cancers.


Action                            Date                      FR Cite


ANPRM                           03/29/02                    67 FR 15134
Notice of Change to Public 
Meetings                        04/18/02                    67 FR 19140
ANPRM Comment Period End        06/27/02
NPRM                            07/29/05                    70 FR 42950
NPRM Comment Period End         09/20/05                    70 FR 43950
Public Hearing                  10/18/05                    70 FR 43950
Final Action                    10/00/06

Regulatory Flexibility Analysis Required: No

Small Entities Affected: Businesses

Government Levels Affected: None

Additional Information: The Office of the Inspector General's ``Evaluation of MSHA's Handling of Inspections at the W.R. Grace & Company Mine in Libby, Montana,'' was issued in March 2001.

Agency Contact: Patricia W. Silvey, Acting Director, Office of
Standards, Regulations, and Variances, Department of Labor, Mine Safety
and Health Administration, 1100 Wilson Boulevard, Room 2349, Arlington,
VA 22209-3939
Phone: 202 693-9440
Fax: 202 693-9441

RIN: 1219-AB24