[Federal Register Volume 67, Number 138 (Thursday, July 18, 2002)]
[Rules and Regulations]
[Pages 47296-47299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18310]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 57

RIN 1219-AB11


Diesel Particulate Matter Exposure of Underground Metal and 
Nonmetal Miners

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Final rule; stay of effectiveness.

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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).

[[Page 47297]]

    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.

DATES: 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 these provisions.

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 [email protected] (e-mail), 202-693-9442 (Voice), or 202-693-
9441 (fax).

SUPPLEMENTARY INFORMATION:

I. Background

    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).
    On 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.
    While these challenges were pending, the Anglogold petitioners 
filed with MSHA an application for reconsideration and amendment of the 
final rule and to postpone the effective date of the final rule pending 
judicial review. The Georgia Mining petitioners similarly filed with 
MSHA a request for an administrative stay or postponement of the 
effective date of the rule.
    On March 15, 2001 MSHA delayed the effective date of the rule until 
May 21, 2001, in accordance with a January 20, 2001 memorandum from the 
President's Chief of Staff (66 FR 15032). The delay was necessary to 
give Department 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.
    Also, MSHA 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.

III. Outcome of Second Partial Settlement

    Settlement negotiations continued on the remaining unresolved 
issues in the litigation. On July 15, 2002, the parties signed an 
agreement that is the basis for this 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:

Settlement Agreement

    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 Particulate Matter

    a. The interim concentration limit restricting total carbon to 
400 micrograms per cubic meter of air becomes effective on July 20, 
2002.

[[Page 47298]]

    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.
    c. 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).
    e. Section 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 factor.
    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%.)
    The 1.3 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 Standard

    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 rulemaking.
    MSHA will inform the court of this settlement agreement. The 
parties will subsequently file a signed agreement

[[Page 47299]]

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.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 02-18310 Filed 7-17-02; 1:49 pm]
BILLING CODE 4510-43-P