[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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