[Federal Register Volume 67, Number 186 (Wednesday, September 25, 2002)]
[Proposed Rules]
[Pages 60199-60202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24370]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 57

RIN 1219-AB29


Diesel Particulate Matter Exposure of Underground Metal and 
Nonmetal Miners

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

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: MSHA is initiating rulemaking to amend certain provisions of 
its existing health standard entitled, ``Diesel Particulate Matter 
Exposure (DPM) of Underground Metal and Nonmetal Miners,'' published in 
the Federal Register on January 19, 2001 (66 FR 5706), and amended on 
February 29, 2002 (67 FR 9180). This rulemaking is part of a settlement 
agreement reached in response to a legal challenge to the January 19, 
2001 DPM standard. Accordingly, the scope of this rulemaking will be 
limited to the terms of the settlement agreement that MSHA shared with 
the public in its recent Federal Register document (final rule; stay of 
effectiveness notice) of July 18, 2002 (67 FR 47296). MSHA will propose 
to revise Sec.  57.5060, limit on concentration of DPM; Sec.  57.5061, 
compliance determinations; and, Sec.  57.5062, diesel particulate 
matter control plan. In addition, MSHA will address technological and 
economic feasibility for the underground metal and nonmetal mining 
industry to comply with revised interim and final DPM concentration 
limits. Some mine operators have begun to implement control technology 
on their underground diesel-powered equipment as a result of the 
January 19, 2001 final rule. Therefore, MSHA requests relevant 
information on current experiences with availability of control 
technology, installation of control technology, effectiveness of 
control technology to reduce DPM levels, and cost implications of 
compliance with the current DPM standard. MSHA emphasizes the 
significance of obtaining this information from mine operators.
    The existing rulemaking record, including the risk assessment for 
the January 19, 2001 standard, will be incorporated into this new 
rulemaking record. Commenters may submit evidence of new scientific 
data related to the health risk to underground metal and nonmetal 
miners from exposure to DPM.

DATES: Comments, suggestions and information on the advance notice of 
proposed rulemaking (ANPRM) must be received on or before November 25, 
2002.

ADDRESSES: Comments on the ANPRM may be transmitted by electronic mail, 
fax, or mail.
    Comments by electronic mail must be clearly identified as such and 
sent to [email protected].
    Comments by fax must be clearly identified as such and sent to: 
MSHA, Office of Standards, Regulations and Variances, 202-693-9441.
    Send comments by mail to: MSHA, Office of Standards, Regulations 
and Variances, Room 2352, 1100 Wilson Boulevard, Arlington, VA 22209-
3939.

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Director; Office of 
Standards, Regulations, and Variances; MSHA, 1100 Wilson Boulevard, 
Room 2313, Arlington, Virginia 22209-3939. Mr. Nichols can be reached 
at [email protected], 202-693-9440, or 202-693-9441 (fax).

SUPPLEMENTARY INFORMATION:

I. Background

    On January 19, 2001, MSHA published a final rule addressing diesel 
particulate matter exposure of underground metal and nonmetal miners 
(66 FR 5706). The final rule established new health standards for 
underground metal and nonmetal mines that use equipment powered by 
diesel

[[Page 60200]]

engines. The effective date of the rule was listed as March 20, 2001.
    On January 29, 2001, AngloGold (Jerritt Canyon) Corp. and Kennecott 
Greens Creek Mining Company filed a petition for review of the final 
rule in the District of Columbia Circuit Court of Appeals. 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 litigation.
    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 of Labor officials the opportunity for 
further review and consideration of new regulations. 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 of Labor 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 with the litigants, 
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 
tagging provision of the maintenance standard; clarified the effective 
dates of certain provisions of the final rule; and included correction 
amendments.
    The second document (67 FR 35521) proposed a 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.
    As a result of the partial settlement agreement, MSHA also agreed 
to conduct joint sampling with industry and labor at 31 underground 
metal and nonmetal mines to determine existing concentration levels of 
DPM; to assess the performance of the SKC submicron dust sampler with 
the NIOSH Method 5040; to assess the feasibility of achieving 
compliance with the standard's concentration limits at the 31 mines; 
and, to assess the impact of interferences on samples collected 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. MSHA will include the final report in this rulemaking 
record.

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 advance notice of proposed 
rulemaking.
    On July 18, 2002, MSHA published a notice in the Federal Register 
(67 FR 47296) announcing that the following provisions of the final 
rule as published on January 19, 2001 (66 FR 5706) would become 
effective on July 20, 2002:
    (a) Sec.  57.5060(a), addressing the interim concentration limit of 
400 micrograms of total carbon per cubic meter of air;
    (b) Sec.  57.5061, addressing compliance determinations; and
    (c) Sec.  57.5071, addressing environmental monitoring. MSHA also 
announced that the following provisions of the final rule would 
continue in effect:
    (a) Sec.  57.5065, Fueling and idling practices;
    (b) Sec.  57.5066, Maintenance standards;
    (c) Sec.  57.5067, Engines;
    (d) Sec.  57.5070, Miner training; and
    (e) Sec.  57.5075, Diesel particulate records, as they relate to 
the requirements of the rule that are in effect on July 20, 2002.
    MSHA announced that it was staying the effectiveness of the 
following provisions pending completion of further rulemaking to 
address these issues:
    (a) Sec.  57.5060(d), permitting miners to work in areas where the 
level of diesel particulate matter exceeds the applicable concentration 
limit with advance approval from the Secretary;
    (b) Sec.  57.5060(e), prohibiting the use of personal protective 
equipment to comply with the concentration limits;
    (c) Sec.  57.5060(f) prohibiting the use of administrative controls 
to comply with the concentration limits; and
    (d) Sec.  57.5062, addressing the control plan.
    Finally, MSHA published in the same notice the terms of the DPM 
settlement agreement and announced its intentions to propose specific 
changes to the final DPM rule as discussed below.

IV. Summary of Issues To Be Addressed in the Proposed Standard

    MSHA is including the following questions to facilitate public 
comment. The Agency invites comments on all aspects of the following 
issues:
    1. Section 57.5060(a) and (b), Limit on concentration of diesel 
particulate matter.
    The existing provisions include an interim concentration limit that 
restricts total carbon (TC) to 400 micrograms per cubic meter of air, 
and a final concentration limit of 160 micrograms per cubic meter of 
air by January 20, 2006. Diesel particulate matter consists of a core 
of elemental carbon (EC), other carbon-containing compounds, and many 
other components. There is no appropriate sampling method for diesel 
particulate matter itself. As a result, a substitute or surrogate must 
be used for DPM. MSHA agreed to propose to change the surrogate, or 
indicator of DPM, from (TC) to elemental carbon (EC) for both the 
interim and final limits. MSHA also agreed to propose that a single 
personal sample of a miner's exposure would be an adequate basis for 
all compliance determinations. Furthermore, MSHA agreed to propose the 
current hierarchy of controls that MSHA applies in its other metal and 
nonmetal exposure-based health standards for abating violations as 
further discussed in this notice. MSHA seeks information, data, and 
comments on the following:
    (a) What are the appropriate interim and final limits if EC is the 
surrogate?
    (b) What error factor should MSHA use for determining noncompliance 
on an EC standard?
    (c) Are there any interferences in the environment of an 
underground metal and nonmetal mine that would preclude personal 
sampling with the impactor when EC is used as the surrogate for DPM?
    (d) Is a field blank required if EC is used as the surrogate? (A 
field blank is a control device to account for

[[Page 60201]]

background interferences from manufacturing and storage of the filter).
    2. Section 57.5060(c) addresses application and approval 
requirements for an extension of time in which to reduce the 
concentration of DPM to the final limit.
    The existing provision allows mine operators to apply for 
additional time to come into compliance with the final concentration 
limit of 160 micrograms of TC per cubic meter of air due to 
technological constraints. MSHA agreed to propose to adapt this 
provision to the interim concentration limit as well, to include 
consideration of economic feasibility, and to allow for annual renewals 
of such special extensions, upon application to and approval by the 
Secretary.
    (a) What circumstances would necessitate an extension of time to 
come into compliance?
    (b) What should be the duration of the extension?
    (c) Should MSHA allow more than one extension?
    (d) What actions should mine operators be required to take to 
minimize DPM exposures if they are operating under an extension?
    3. Section 57.5060(d) addresses certain exceptions to the 
concentration limit.
    The existing provision permits miners engaged in specific 
activities, such as inspection, maintenance, or repair activities, to 
work in concentrations of DPM that exceed the interim and final limits, 
with advance approval from the Secretary.
    (a) Would this provision be necessary if MSHA includes in the final 
rule its current hierarchy of controls for its other exposure-based 
health standards for metal and nonmetal mines?
    (b) What would be the impact of removing this provision?
    4. Section 57.5060(e) prohibits use of personal protective 
equipment to comply with the concentration limits; and Sec.  57.5060(f) 
prohibits use of administrative controls to comply with the 
concentration limits.
    MSHA agreed to propose to amend these provisions to require mine 
operators to establish, use, and maintain all feasible engineering 
control methods, consistent with the Agency's long-standing enforcement 
policy for its other existing exposure-based health standards 
applicable to metal and nonmetal mines. Therefore, MSHA will propose to 
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. MSHA also agreed to consider the 
advisability of requiring periodic application to the Secretary before 
respirators could be used. MSHA will propose to prohibit the practice 
of rotation of employees as an administrative control for compliance 
with the DPM standard.
    (a) Currently, there is no approved respirator for use in 
protecting miners exposed to DPM atmospheres. If MSHA includes 
requirements for some form of respiratory protection, what type of 
respirators would be protective of miners? What are their 
specifications?
    (b) Should MSHA propose to require mine operators to implement a 
written respiratory protection program when miners must wear 
respiratory protection?
    (c) Should MSHA require mine operators to apply to the Secretary 
for approval to use respiratory protection? Should the application be 
in writing? What conditions should MSHA require mine operators to meet 
before approval is granted to use respirators?
    (d) Should MSHA propose to require mine operators to implement a 
written administrative control plan when they use administrative 
controls to reduce miners' exposures to the required limit?
    5. Section 57.5061(b) addresses how MSHA will collect and analyze 
samples for compliance purposes.
    MSHA agreed to propose to change the DPM surrogate from TC to EC. 
Therefore, MSHA would propose to delete the reference to analyzing the 
samples for the amount of ``total carbon'' included in this paragraph 
and propose to insert ``elemental carbon.''
    6. Section 57.5061(c) provides for MSHA to conduct personal, area, 
and occupational sampling for compliance determinations.
    MSHA agreed to propose a revision to this paragraph to state that 
the Agency would conduct personal sampling only for compliance 
determinations for the interim and final DPM standards. As a result, 
MSHA would propose to revise this paragraph to delete the references to 
``area'' and ``occupational sampling'' for compliance determinations.
    (a) What would be the cost implications for mine operators to 
conduct personal sampling of miners' DPM exposures if EC is the 
surrogate?
    (b) What experience do mine operators have with DPM sampling and 
analysis?
    (c) Is there experience with DPM sampling in other industries and 
other countries?
    7. Section 57.5062 addresses the diesel particulate control plan.
    The existing MSHA standard includes requirements for implementing a 
DPM control plan. MSHA agreed to propose revisions to these 
requirements. The settlement agreement does not include any specifics 
on the language of a proposal.
    (a) How should the control plan be changed?
    (b) What is an appropriate duration for a control plan?
    (c) Should a single violation trigger implementation of a control 
plan? If not, what is an appropriate trigger?
    (d) What roles should respiratory protection and administrative 
controls have under a control plan?
    (e) Are there regulatory alternatives to the existing control plan 
requirement that are at least as protective of miners, such as 
requiring a written administrative control plan and/or a written 
respiratory protection plan?
    (f) Since MSHA is proposing to include its long-standing hierarchy 
of controls for compliance with the revised standard, is there any 
benefit from retaining the control plan?
    (g) Should MSHA delete the control plan requirements--why or why 
not?
    8. Technological and economic feasibility.
    New information on the technological and economic feasibility of 
current control technology was presented to MSHA following promulgation 
of the January 19, 2001 standard. MSHA intends to evaluate this new 
information in conjunction with compliance changes that would result 
from a proposed standard.
    (a) What experience do you have modifying ventilation systems to 
reduce miners' exposure to DPM?
    (b) What were the costs to mine operators for auxiliary fans, 
booster fans, flexible ducts, or major ventilation upgrades necessary 
to meet the interim concentration limit?
    (c) What has been the experience of mine operators with 
retrofitting existing diesel-powered equipment, especially in the range 
with less than 50 hp, as well as equipment that has greater than 250 
hp, with DPM control devices? What adjustment did mine operators have 
to make to DPM control devices before there were reductions in DPM 
levels?
    (d) What are the engineering costs associated with retrofitting?
    (e) What technical assistance should MSHA provide to mine operators 
in retrofitting DPM control devices or evaluating a mine's ventilation 
system, or filtration systems in environmental cabs?
    (f) Are there circumstances where mine operators have had to change 
an engine model to accommodate DPM

[[Page 60202]]

control devices? What were the costs of the engine models?
    (g) How much did control devices cost for different horse-powered 
engines?
    (h) Did mine operators have to modify the exhaust system to apply 
the DPM control? What were the costs for doing so?
    (i) What are the advantages, disadvantages, and relative costs of 
different DPM control devices?
    (j) What types of DPM control devices are commercially available 
and how much do these devices cost?
    (k) What are the engineering costs of the DPM control devices?
    (l) What current reductions in EC levels are mine operators 
experiencing from having installed DPM control devices? What is the 
experience with filtration efficiencies?
    (m) What has been the experience of mine operators with the useful 
life of DPM filters?
    (n) Is there any information available with DPM control filters in 
non-mining industries or in other countries?
    (o) What has been the experience of mine operators with DPM 
filters? Did filters fail or did they perform as the manufacturer 
predicted? If they failed, what were the causes of filter failure? What 
could be done to prolong the life of DPM filters?
    (p) Do mine operators have any technical data on their experience 
with using cabs with filtered breathing air?
    (q) Have you experienced increases in NO2 when using any 
of the following: (1) A base-metal catalyzed filter; (2) a non-
catalyzed filter; or (3) platinum-based catalyzed filter?
    (r) What effect do high altitudes have on the ability of the DPM 
control device to reduce DPM exposures?
    (s) What costs did mine operators incur for filters that were 
regenerated off board?
    (t) What costs did mine operators incur for filters that were 
regenerated on board?
    (u) Would active regeneration be feasible for your mine; such as 
off-board filter regeneration in an oven, or on-board electrical 
regeneration?
    (v) What are the costs to mine operators for new engines and 
venting for filter ovens?
    (w) Would fuel additives used to facilitate regeneration be 
feasible?
    (x) Are there any significant technologies for controlling DPM when 
EC is the surrogate?
    9. Paperwork Burden Issues.
    What paperwork and other costs will you incur if changes are made 
to the DPM standard, particularly development of a written program for 
use of administrative controls, use of respiratory protection, and for 
development of a control plan?

    Dated: September 20, 2002.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 02-24370 Filed 9-20-02; 4:22 pm]
BILLING CODE 4510-43-P