[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Proposed Rules]
[Pages 64412-64506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25249]
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Part II
Department of Labor
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Mine Safety and Health Administration
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30 CFR Parts 70, 71, 72, et al.
Lowering Miners' Exposure to Respirable Coal Mine Dust, Including
Continuous Personal Dust Monitors; Proposed Rule
Federal Register / Vol. 75 , No. 201 / Tuesday, October 19, 2010 /
Proposed Rules
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 70, 71, 72, 75, and 90
RIN 1219-AB64
Lowering Miners' Exposure to Respirable Coal Mine Dust, Including
Continuous Personal Dust Monitors
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Proposed rule.
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SUMMARY: The Mine Safety and Health Administration (MSHA) proposes to
lower miners' exposure to respirable coal mine dust by revising the
Agency's existing standards on miners' occupational exposure to
respirable coal mine dust. The major provisions of the proposal would
lower the existing exposure limit; provide for full-shift sampling;
redefine the term ``normal production shift; '' and add reexamination
and decertification requirements for persons certified to sample, and
maintain and calibrate sampling devices. In addition, the proposed rule
would provide for single shift compliance sampling under the mine
operator and MSHA's inspector sampling programs, and would establish
sampling requirements for use of the Continuous Personal Dust Monitor
(CPDM) and expanded requirements for medical surveillance.
The proposed rule would significantly improve health protections
for this Nation's coal miners by reducing their occupational exposure
to respirable coal mine dust and lowering the risk that they will
suffer material impairment of health or functional capacity over their
working lives.
DATES: All comments must be received by midnight Eastern Standard Time
on February 28, 2011.
ADDRESSES: Comments must be clearly identified with ``RIN 1219-AB64''
and may be sent by any of the following methods:
(1) Federal e-Rulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
(2) Electronic mail: [email protected]. Include ``RIN 1219-
AB64'' in the subject line of the message.
(3) Facsimile: 202-693-9441. Include ``RIN 1219-AB64'' in the
subject line of the message.
(4) Regular Mail: MSHA, Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
(5) Hand Delivery or Courier: MSHA, Office of Standards,
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350,
Arlington, Virginia. Sign in at the receptionist's desk on the 21st
floor.
Information Collection Requirements: Comments concerning the
information collection requirements of this proposed rule must be
clearly identified with ``RIN 1219-AB64'' and sent to both the Office
of Management and Budget (OMB) and MSHA. Comments to OMB may be sent by
mail addressed to the Office of Information and Regulatory Affairs,
Office of Management and Budget, New Executive Office Building, 725
17th Street, NW., Washington, DC 20503, Attn: Desk Officer for MSHA.
Comments to MSHA may be transmitted either electronically to zzMSHA-
[email protected], by facsimile to (202) 693-9441, or by regular mail,
hand delivery, or courier to MSHA, Office of Standards, Regulations,
and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-
3939.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard,
Room 2350, Arlington, Virginia 22209-3939. Ms. Silvey can be reached at
[email protected] (Internet E-mail), (202) 693-9440 (voice), or
(202) 693-9441 (facsimile).
SUPPLEMENTARY INFORMATION:
Availability of Information
MSHA will post all comments on the Internet without change,
including any personal information provided. Comments can be accessed
electronically at http://www.msha.gov/regsinfo.htm. Comments may also
be reviewed at the Office of Standards, Regulations, and Variances,
1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign in at the
receptionist's desk on the 21st floor.
MSHA maintains a list that enables subscribers to receive e-mail
notification when rulemaking documents are published in the Federal
Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.
Table of Contents
I. Introduction
II. Background Information
A. Interim Mandatory Standards Under the Mine Act
B. MSHA's Existing Respirable Dust Standards
C. 1995 NIOSH Criteria Document and 1996 Dust Advisory Committee
Report
D. 2000 and 2003 Plan Verification Proposed Rules
E. 2000 Single Sample Proposed Rule
F. Continuous Personal Dust Monitor
III. Section-by-Section Discussion
IV. Health Effects
V. Quantitative Risk Assessment
VI. Derivation and Distribution Table
VII. Executive Order 12866
A. Population at Risk
B. Benefits
C. Compliance Costs
D. Net Benefits
VIII. Feasibility
A. Technological Feasibility
B. Economic Feasibility
IX. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
A. Definition of a Small Mine
B. Factual Basis for Certification
X. Paperwork Reduction Act of 1995
A. Summary
B. Procedural Details
XI. Other Regulatory Considerations
A. National Environmental Policy Act (NEPA)
B. The Unfunded Mandates Reform Act of 1995
C. The Treasury and General Government Appropriations Act of
1999: Assessment of Federal Regulations and Policies on Families
D. Executive Order 12630: Government Actions and Interference
With Constitutionally Protected Property Rights
E. Executive Order 12988: Civil Justice Reform
F. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
G. Executive Order 13132: Federalism
H. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. Executive Order 13272: Proper Consideration of Small Entities
in Agency Rulemaking
XII. References
XIII. Appendix A--Excessive Concentration Values
I. Introduction
This proposed rule promotes the Secretary of Labor's vision of
``Good Jobs For Everyone.'' It also supports the Department of Labor's
(DOL's) goal of securing safe and healthy workplaces, particularly for
vulnerable workers in high-risk industries, such as mining, by reducing
workplace deaths and improving the health of coal miners.
This proposed rule is an important element in MSHA's Comprehensive
Initiative to ``End Black Lung--Act Now!'' MSHA launched this important
initiative in December 2009 and it includes four components:
rulemaking, enhanced enforcement, collaborative outreach, and education
and training. The initiative will reduce, and ultimately eliminate,
disabling occupational lung disease in coal mines.
This proposal provides the public with the opportunity to comment
on the
[[Page 64413]]
Agency's comprehensive and integrated regulatory approach to reduce and
eliminate continued risks to miners from exposure to respirable coal
mine dust. Throughout the preamble, the terms ``respirable coal mine
dust,'' ``coal mine dust,'' and ``respirable dust'' are used
interchangeably. This proposal combines the following rulemaking
actions: (1) ``Occupational Exposure to Coal Mine Dust (Lowering
Exposure);'' (2) ``Verification of Underground Coal Mine Operators'
Dust Control Plans and Compliance Sampling for Respirable Dust'' (Plan
Verification) (65 FR 42122, July 7, 2000, and 68 FR 10784, March 6,
2003); (3) ``Determination of Concentration of Respirable Coal Mine
Dust'' (Single Sample) (65 FR 42068, July 7, 2000, and 68 FR 10940
March 6, 2003); and (4) ``Respirable Coal Mine Dust: Continuous
Personal Dust Monitor (CPDM)'' (74 FR 52708, October 14, 2009). MSHA is
withdrawing Plan Verification and Single Sample as separate rulemaking
actions.
Exposure to respirable coal mine dust can cause lung diseases
including coal workers' pneumoconiosis (CWP), emphysema, silicosis, and
chronic bronchitis, known collectively as ``black lung.'' These
diseases are debilitating, incurable, and can result in disability, and
premature death. While considerable progress has been made in reducing
the respirable coal mine dust levels, miners continue to develop black
lung. Based on recent data from the National Institute for Occupational
Safety and Health (NIOSH), the prevalence rate of black lung is
increasing in our nation's coal miners; even younger miners are showing
evidence of advanced and seriously debilitating lung disease. Black
lung is a preventable disease.
Several provisions in the proposed rule, including lowering the
respirable dust standard, basing noncompliance determinations on single
shift sampling, sampling of extended work shifts to account for
occupational exposures greater than 8 hours per shift, and changing the
definition of normal production shift, would singularly lower coal
miners' exposure to respirable dust. For example, MSHA's quantitative
risk assessment (QRA) estimates the reduction in health risks when two
provisions of the proposed rule are implemented--the proposed
respirable dust limit and single shift sampling. The QRA shows that
these two proposed provisions would significantly reduce the risks of
CWP, severe emphysema, and death from non-malignant respiratory disease
(NMRD). For instance, at underground mines, the QRA projects over a 45-
year occupational lifetime from 1-105 fewer cases of pneumoconiosis per
thousand exposed truck drivers, and 50 fewer cases of severe emphysema
and 15 fewer deaths due to NMRD per thousand exposed cutting machine
operators (see the QRA discussion in Section V of this preamble).
The other provisions in the proposed rule would further reduce
health risks to miners. Cumulatively, the proposed provisions would
reduce the continued risks that coal miners face from exposure to
respirable coal mine dust and would further protect them from the
debilitating effects of occupational respiratory disease.
II. Background Information
A. Interim Mandatory Standards Under the Mine Act
Section 202 of the Federal Mine Safety and Health Act of 1977 (Mine
Act) established interim mandatory standards for respirable dust that
remain in effect until superseded by improved permanent mandatory
standards promulgated by the Secretary under Section 101. Section
202(b)(2) required each underground coal mine operator to continuously
maintain the average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the active workings
is exposed at or below 2.0 milligrams of respirable dust per cubic
meter of air (i.e., 2.0 mg/m3) (emphasis added). Section 205
required that when coal mine dust contains more than five percent
quartz (i.e., silica), the respirable coal mine dust standard must be
reduced according to a formula prescribed by NIOSH.
B. MSHA's Existing Respirable Dust Standards
MSHA's existing respirable dust standards, promulgated on April 8,
1980, implemented Section 202(b) of the Mine Act (45 FR 23990, April 8,
1980). The standards require coal mine operators to continuously
maintain the average concentration of respirable dust to which each
miner is exposed during each shift at or below 2.0 milligrams per cubic
meter of air (2.0 mg/m3) (30 CFR 70.100 (underground coal
mines), 71.100 (surface coal mines and surface areas of underground
coal mines)). Miners who have evidence of pneumoconiosis and are
employed at underground coal mines or surface work areas of underground
coal mines have the option to work in areas where average respirable
dust concentrations do not exceed 1.0 mg/m3 of air (30 CFR
Sec. 90.100, ``part 90 miners''). There is no separate standard for
respirable silica; rather, where the total respirable coal mine dust
contains more than five percent quartz, the respirable coal mine dust
standard is computed by dividing the percentage of quartz into the
number ten (30 CFR Sec. Sec. 70.101 (underground coal mines), 71.101
(surface coal mines and surface areas of underground coal mines), and
90.101 (part 90 miners)).
The term ``average concentration'' in MSHA's existing standards
tracks the language of the Mine Act and is defined in Sec. 202(f) of
the Mine Act as follows:
[T]he term ``average concentration'' means a determination which
accurately represents the atmospheric conditions with regard to
respirable dust to which each miner in the active workings of a mine
is exposed (1) as measured, during the 18 month period following
December 30, 1969, over a number of continuous production shifts to
be determined by the Secretary [of Labor; Originally, the Secretary
of the Interior] and the Secretary of Health and Human Services
[originally, the Secretary of Health, Education, and Welfare (HEW)],
and (2) as measured thereafter, over a single shift only, unless the
Secretary [of Labor] and the Secretary of Health and Human Services
find, in accordance with the provisions of section 811 of this
title, that such single shift measurement will not, after applying
valid statistical techniques to such measurement, accurately
represent such atmospheric conditions during such shift (30 U.S.C.
Sec. 842(f)).
Section 202(f) of the Mine Act is taken essentially verbatim from
Sec. 202(f) of the Federal Coal Mine Health and Safety Act of 1969
(Coal Act). In 1972, acting pursuant to the Coal Act, the Secretaries
of the Interior and HEW made the joint finding referred to in Sec.
202(f), concluding that ``single shift measurement of respirable dust
will not, after applying valid statistical techniques to such
measurement, accurately represent the atmospheric conditions to which
the miner is continuously exposed'' (Notice of Finding That a Single
Shift Measurement of Respirable Dust Will Not Accurately Represent
Atmospheric Conditions During Such Shift, 37 FR 3833 (February 23,
1972) (1972 Joint Finding)). Under Sec. 301(b)(1) and (c)(2) of the
Mine Act, all standards, decisions, determinations, and regulations
issued under the Coal Act remain in effect under the Mine Act until
modified or set aside.
Under MSHA's existing standards, mine operators are required to
collect bimonthly respirable dust samples and submit them to MSHA for
analysis to determine compliance with applicable respirable dust
standards (compliance samples). If compliance samples do not meet the
requirements of the applicable dust standard, MSHA issues a citation
[[Page 64414]]
for a violation of the standard and the operator is required to take
corrective action to lower the respirable dust concentration to meet
the standard. Further, the operator must collect additional respirable
dust samples during the time established in the citation for abatement
of the hazard or violation (abatement sampling).
Underground coal mine operators collect and submit two types of
samples during bimonthly sampling periods: (1) ``designated
occupation'' (DO) samples taken for the occupations exposed to the
greatest concentrations of respirable dust in each mechanized mining
unit (DOs are specified in Sec. 70.207); and (2) ``designated area''
(DA) samples collected at locations appropriate to best measure
concentrations of respirable dust associated with dust generation
sources in the active working of the mine (Sec. 70.208). The
operator's approved ventilation system and methane and dust control
plan, required in existing 30 CFR part 75, must show the specific
locations in the mine designated for taking the DA samples. In
addition, mine operators take respirable dust samples for part 90
miners (Sec. Sec. 90.207 and 90.208).
Similarly, for surface work areas of underground mines and for
surface mines, mine operators are required to collect bimonthly samples
from ``designated work positions'' (DWPs), which are designated by the
District Manager (Sec. 71.208).
Compliance determinations are based on the average concentration of
respirable dust measured by five valid respirable dust samples taken by
the operator during five consecutive normal production shifts or five
normal production shifts worked on consecutive days (multiple-shift
samples). Compliance determinations are also based on the average of
multiple measurements taken by the MSHA inspector over a single shift
(multiple, single-shift samples) or on the average of multiple
measurements obtained for the same occupation on successive days
(multiple-shift samples).
In 1991, MSHA began a spot inspection program (SIP). Under the SIP,
if the average of multiple occupation measurements taken by the MSHA
inspector on an MMU during any one-day inspection (multiple, single-
shift samples) did not exceed the applicable respirable dust standard,
the MSHA inspector would review the result of each individual full-
shift sample (single, full-shift sample). If any single, full-shift
sample exceeded the applicable standard by an amount specified by MSHA,
a citation would be issued for noncompliance, requiring the mine
operator to take immediate corrective action to lower the average dust
concentration in the mine atmosphere in order to protect miners. In
November 1991, MSHA extended the single, full-shift sampling method to
all mining types, not just MMUs.
In Keystone Coal, 16 FMSHRC 6 (Jan. 4, 1994), the Federal Mine
Safety and Health Review Commission (Commission) vacated three
citations that were based on single, full-shift samples taken by MSHA
inspectors under the SIP. MSHA contended that the 1972 Joint Finding
did not preclude the SIP because the Joint Finding pertained to
operator sampling, while the SIP involved MSHA sampling only. The
Commission rejected that argument and concluded that MSHA policy could
only be altered if the requirements of the Mine Act and the
Administrative Procedure Act (5 U.S.C. 551 et seq.) were met. (i.e.,
notice and comment rulemaking procedures). As a result of the decision,
MSHA terminated the SIP.
In Secretary of Labor v. Excel Mining LLC, 334 F.3d 1 (D.C. Cir.
2003), the Secretary interpreted Sec. 202(f) of the Mine Act and the
1972 Joint Finding to bar MSHA's use of a single, full-shift sample to
calculate average dust concentration for enforcement purposes because,
after applying valid statistical techniques, those samples would not
accurately represent the atmospheric conditions to which the miner is
continuously exposed. However, the Secretary further took the position
that the statute and Joint Finding did not bar the Agency from making
compliance determinations based on an average of multiple samples taken
over a single shift (``multiple, single-shift samples''). The Court
found the Secretary's interpretation was reasonable.
C. 1995 NIOSH Criteria Document and 1996 Dust Advisory Committee Report
On November 7, 1995, NIOSH submitted to the Secretary a criteria
document recommending reduced standards for respirable coal mine dust
and silica exposure. On April 25, 1996, MSHA published a Federal
Register notice stating that it had decided to respond to the NIOSH
criteria document by developing a proposed rule ``derived from the
recommendations'' in the NIOSH Criteria Document (61 FR 18308, April
25, 1996). The NIOSH Criteria Document can be accessed electronically
at http://www.cdc.gov/niosh/95-106.html. MSHA further stated that,
although it would begin ``the background work necessary to develop such
a rule,'' it would defer development of the rule until it received a
report from the Secretary of Labor's Advisory Committee on the
Elimination of Pneumoconiosis Among Coal Mine Workers (Dust Advisory
Committee), which the Secretary had established on January 31, 1995,
and to which MSHA had referred the NIOSH criteria document.
On November 14, 1996, the Dust Advisory Committee submitted its
report to the Secretary. The Dust Advisory Committee Report can be
accessed electronically at http://www.msha.gov/S&HINFO/BlackLung/1996Dust%20AdvisoryReport.pdf. The report contained 20 wide-ranging
principal recommendations, subdivided into approximately 100 action
items, aimed at eliminating coal miners' pneumoconiosis and silicosis
(62 FR 3717, January 24, 1997). The report recommended that MSHA
consider lowering the level of allowable exposure to coal mine dust,
with any reduction accompanied by a phase-in period to allow allocation
of sufficient resources to the compliance effort.
D. 2000 and 2003 Plan Verification Proposed Rules
On July 7, 2000, MSHA published the Plan Verification proposed
rule. The proposal would require underground mine operators to have a
verified mine ventilation plan, with MSHA collecting samples to verify
the adequacy of dust control parameters specified in the ventilation
plan to maintain respirable dust standards (``verification sampling'').
In response to comments urging MSHA to withdraw the proposal, MSHA
published a new proposed rule on March 6, 2003, (68 FR 10784), which
would require mine operators to have a ``verified'' mine ventilation
plan and conduct verification sampling on each mechanized mining unit
(MMU). Under the proposal, mine operators would demonstrate the
adequacy of dust control parameters specified in the ventilation plan
to maintain the concentration of respirable coal mine dust and quartz
dust at or below applicable dust standards. In addition, the mine
operators' existing bimonthly respirable dust sampling program for each
MMU and DA would be eliminated and MSHA would assume responsibility for
compliance and abatement sampling in underground coal mines.
The 2003 proposal would also provide for the use of CPDMs once the
CPDM was verified as reliable under mining conditions and commercially
available.
Public hearings were held in May 2003. The closing date for the
comment period for the Plan Verification proposed rule was extended
indefinitely to obtain information concerning
[[Page 64415]]
CPDMs being tested by NIOSH (68 FR 39881, July 3, 2003).
The following provisions from the 2003 Plan Verification proposal
have been revised and integrated into this proposed rule: (1) Use of
the CPDM in monitoring respirable dust exposures; (2) recording the
amount of material produced by each MMU during each production shift
and retaining the record; (3) sampling for respirable dust during the
entire time that a miner works to account for shifts longer than 8
hours (hr); (4) requiring that dust control parameters in the mine's
ventilation plan be revised when respirable dust overexposures are
indicated; and (5) including threshold values that would be used to
determine violations based on single sample measurements. With issuance
of this proposed rule, MSHA is no longer accepting comments on the 2003
Plan Verification proposed rule. Comments on provisions of the 2003
Plan Verification proposal that are integrated in this proposal are
addressed in the section-by-section analysis of this preamble.
E. 2000 Single Sample Proposed Rule
On July 7, 2000, MSHA and NIOSH jointly published a proposed rule
on Determination of Concentration of Respirable Coal Mine Dust (Single
Sample) (65 FR 42068). The proposal would have rescinded the 1972 Joint
Notice and established that a single, full-shift measurement of
respirable coal mine dust may be used to determine the average
concentration on a shift if that measurement accurately represents
atmospheric conditions to which a miner is exposed during such shift.
MSHA proposed the 2000 Single Sample rule following National Mining
Association (NMA) et al. v. Secretary of Labor, et al., 153 F.3d 1264
(11th Cir. 1998). In this case, the Court of Appeals for the 11th
Circuit (Court) reviewed the 1998 Final Joint Notice of Finding issued
by MSHA and NIOSH. The 1998 Final Joint Finding, issued on February 3,
1998, concluded that the 1972 Joint Finding was incorrect and stated
that the average respirable dust concentration to which a miner is
exposed can be accurately measured over a single shift (63 FR 5664).
The Court vacated the 1998 Joint Finding and found that MSHA was
required by section 101(a)(6)(A) of the Mine Act to demonstrate that
the single full-shift measurement adequately assures that no miner will
suffer a material impairment of health, on the basis of the best
available evidence; uses the latest available scientific data in the
field; is technologically and economically feasible; and is based on
experience gained under the Mine Act and other health and safety laws
(153 F.3d 1268-1269).
On March 6, 2003, MSHA and NIOSH reopened the rulemaking record to
allow further comment on the 1998 Final Finding and to solicit comment
on new data and information added to the record (68 FR 10940). In May
2003, public hearings on the 2000 single sample proposal were held
jointly with the 2003 plan verification proposal. The comment period
for the single sample proposal was extended indefinitely in order to
obtain information on CPDMs being tested by NIOSH (68 FR 47886, August
12, 2003). The single sample proposal is a part of this proposed rule.
F. Continuous Personal Dust Monitors (CPDM)
On April 6, 2010, 75 FR 17512, MSHA and NIOSH published a final
rule revising approval requirements under 30 CFR part 74 for the
existing coal mine dust personal samplers. It also establishes new
approval requirements for the new CPDM.
The CPDM is new technology that provides a direct measurement of
respirable dust in the miner's work atmosphere on a real-time basis. In
September 2006, NIOSH published the results of a collaborative study
designed to verify the performance of the pre-commercial CPDM in
laboratory and underground coal mine environments. According to the
NIOSH Report of Investigations 9669, ``Laboratory and Field Performance
of a Continuously Measuring Personal Respirable Dust Monitor,''
(Volkwein, JC et al., 2006), the CPDM is accurate, precise, and durable
under harsh mining conditions in providing continuous exposure
information previously not available to coal miners and coal mine
operators.
On October 14, 2009, MSHA published a Request for Information (RFI)
on potential applications of CPDM technology to monitor and control
miners' exposure to respirable coal mine dust during a working shift
(74 FR 52708). The comment period closed on December 14, 2009.
III. Section-by-Section Discussion
Discussion of Alternatives
The proposed rule presents a comprehensive integrated approach for
lowering miners' exposure to respirable coal mine dust. The proposal
combines the following regulatory actions: Lowering miners' coal mine
dust exposure; single shift sampling to determine noncompliance; plan
verification (normal production shift and full shift sampling); and the
use of the CPDM. In developing the proposed rule, MSHA considered a
number of alternatives, ranging from addressing each rulemaking
separately to combining a number of them. For example, MSHA considered
lowering the exposure limit separately; and lowering the exposure limit
in conjunction with single shift sampling. MSHA also considered
implementation of CPDMs as a separate, later rulemaking. However, the
Secretary of Labor considers ending black lung disease as one of the
Department's highest regulatory priorities and strongly believes that
the proposed integrated regulatory approach represents the most
effective strategy for reducing miners' exposure to respirable dust.
The proposed integrated approach would allow miners and operators to
review and respond to the most effective provisions for addressing
black lung at one time. The proposal allows both the mining community
and MSHA to address improvements to end black lung comprehensively.
Improvements include: regulations, enforcement procedures, compliance
tools, and information technology systems and support related to coal
mine dust sampling.
MSHA also considered various alternatives to key provisions in the
proposal. For example, MSHA considered:
Other limits for the respirable dust standard;
The occupations, miners, and areas that operators should
sample and sampling frequency. MSHA considered options that would
sample more miners more frequently, but rejected these due to estimated
projected benefits;
Shorter and longer implementation dates for the proposed
exposure limits and proposed use of CPDMs;
Alternatives to calculating sampling of extended work
shifts;
Different production levels associated with the proposed
definition of ``normal production shift''; and
Whether taking single shift samples to determine
noncompliance with the proposed exposure limit should apply only to
MSHA inspector samples, or to both operator and MSHA samples.
The Agency believes that the integrated approach in the proposed
rule would achieve an effective and balanced regulatory program
consistent with MSHA's Comprehensive Black Lung Initiative to lower
coal miners' exposure to respirable coal mine dust and end lung
disease. The Agency believes that a more compartmentalized approach
would lessen the impact of the benefits to be achieved by this
[[Page 64416]]
important initiative and would not adequately reduce the risk of
serious lung disease from coal mine dust exposure. The Agency solicits
comment on which provisions in the proposal would be more effective if
implemented. Commenters are requested to submit other alternatives,
including detailed rationale and supporting documentation.
30 CFR Part 70
A. Section 70.2 Definitions
Approved Sampling Device
This new definition, approved sampling device, would mean a
sampling device approved by the Secretary and the Secretary of Health
and Human Services under 30 CFR part 74 (Coal Mine Dust Sampling
Devices). The proposed definition would clarify that whenever a
sampling device is used by operators to comply with the requirements of
part 70, the device must be approved for use in coal mines under part
74.
Coal Mine Dust Personal Sampler Unit (CMDPSU)
This new definition, coal mine dust personal sampler unit (CMDPSU),
would mean a personal sampling device that is approved under 30 CFR
part 74, subpart B. The definition is necessary to distinguish between
the two types of coal mine dust monitoring technology approved under
part 74 and to clarify the applicability of the proposed rule to each
approved sampling device. The existing gravimetric sampling device used
by operators would be considered a CMDPSU under this proposed
definition.
Continuous Personal Dust Monitor (CPDM)
This new definition, continuous personal dust monitor (CPDM), would
mean a personal sampling device approved under part 74, subpart C. The
definition is necessary to distinguish between the two types of coal
mine dust monitoring technology approved under part 74 and to clarify
the applicability of proposed rule provisions to each approved sampling
device.
Designated Area (DA)
The proposal would retain the existing requirement that a DA is an
area of the mine identified by the operator in the mine ventilation
plan, and approved by the District Manager. It would make a non-
substantive change to the existing definition to clarify that the DA
would be identified by a four-digit identification number assigned by
MSHA. The proposal would be consistent with the existing practice of
identifying DAs and would incorporate language from existing Sec.
70.208(e).
Equivalent Concentration
This new definition, equivalent concentration, would mean the
concentration of respirable coal mine dust expressed in milligrams per
cubic meter of air (mg/m\3\), determined by dividing the weight of dust
in milligrams collected on the filter of an approved sampling device by
the volume of air in cubic meters passing through the collection filter
(sampling time in minutes times the sampling airflow rate in cubic
meters per minute), and then converting this concentration to an
equivalent 8-hour exposure as measured by the Mining Research
Establishment (MRE) instrument. When the approved sampling device is:
(1) The CMDPSU, the equivalent concentration is determined by first
multiplying the concentration of respirable coal mine dust by the MRE
conversion factor prescribed by the Secretary and then normalizing this
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling
time in minutes if longer than 8 hours.
(2) The CPDM, the device shall be programmed to directly report the
end-of-shift equivalent concentration as an MRE 8-hour equivalent
concentration.
(3) Either the CMDPSU or CPDM and the sampled work shift is less
than 8 hours, the value of t used for normalizing the MRE-equivalent
concentration to an 8-hour exposure measurement shall be 480 minutes.
This proposed definition is derived from existing Sec. 70.206
which provides a formula to convert measured concentrations of
respirable dust to an equivalent concentration as measured with an MRE
instrument. MSHA has approved two sampling devices under 30 CFR part 74
for measuring the concentration of respirable coal mine dust--the
CMDPSU and the CPDM. Under the proposed definition, dust concentration
measurements from a CMDPSU would continue to be converted to MRE
equivalent concentrations. Dust concentration measurements from a CPDM
would be converted to CMDPSU equivalent concentrations because NIOSH
researchers have determined that measurements of respirable dust
concentrations using the CMDPSU and the CPDM are comparable (Page, S.,
et al., 2008).
The proposed definition would address work shifts in coal mines,
which frequently exceed 8 hours. A miner working for 10 hours at an
average concentration of 2.0 mg/m\3\ would be exposed to more
respirable coal mine dust than a miner working for 8 hours at the same
average concentration. To provide effective protection to miners
working longer than 8 hours, the proposal would require that dust
concentration measurements for these shifts be converted to an 8-hour
equivalent concentration as measured by the MRE instrument. The
proposal is consistent with generally accepted industrial hygiene
practices that adjust worker exposures to account for all time worked,
recognizing that an extended work shift results in a shorter time to
recover before the next exposure.
Under the proposed rule, converting a respirable dust concentration
measured by an approved sampling device to an equivalent concentration
would be accomplished as follows:
First, for all sampled shifts, the measured concentration would be
multiplied by a constant factor prescribed specifically for the
approved sampling device by the Secretary to convert the concentration
to an MRE-equivalent concentration (conversion factor). Since 1980,
measurements of respirable coal mine dust using the approved cyclone-
based gravimetric devices (i.e., the CMDPSU) operating at a flow rate
of 2.0 liters per minute (i.e., 0.002 m\3\/min) were multiplied by the
conversion factor of 1.38 prescribed for that device. Under the
proposal, MSHA would continue to apply the conversion factor of 1.38
for the CMDPSU. Application of this factor would compensate for the
difference in dust collection characteristics and make the measurements
equivalent to those of an MRE instrument. As explained in the preamble
discussion related to Sec. 70.201, the MRE conversion factor for the
CPDM is 1.05.
Second, if the sampled shift is longer than 8 hours, the MRE
equivalent concentration would be multiplied by t/480, where ``t'' is
the sampling time for the longer sampled shift (> 480) in minutes, to
make it equivalent in dosage to the concentration as measured by an MRE
instrument on an 8-hour work shift. The formula for an equivalent
concentration is:
[[Page 64417]]
[GRAPHIC] [TIFF OMITTED] TP19OC2.016
where airflow rate = 0.002 m\3\/min. The product of ``t'' and the
airflow rate is the total volume of air from which dust is accumulated
on the filter.
For example, a DO sample is collected with a CMDPSU over a 9-hour
(540 min) shift and the amount of dust accumulated during the shift is
1.5 mg. The MRE equivalent concentration would be 1.92 mg/m\3\ [1.38
MRE conversion factor x 1.5 mg/(540 min x 0.002 m\3\/min)]. Under the
proposed definition, this quantity would be multiplied by 540/480,
yielding an equivalent concentration of 2.16 mg/m\3\. This adjustment
allows MSHA to compare the full-shift measurement to the applicable
respirable dust standard.
Since the existing standard was based on the assumption that
exposure occurs over an 8-hour shift, the 8-hour exposure corresponds
to a daily accumulated amount of respirable coal mine dust of 16 mg-hr/
m\3\ (8 hours x 2.0 mg/m\3\) as measured by the MRE instrument. The
proposed definition of equivalent concentration would continue this
same 16 mg-hr/m\3\ daily limit, regardless of the length of the working
shift being sampled. In the previous example of the 9-hour shift with a
dust accumulation of 1.5 mg, the amount of dust accumulated during the
sampled working shift is the same whether over 8 hours at an average of
2.16 mg/m\3\ or over 9 hours at an average of 1.92 mg/m\3\. In either
case, the MRE equivalent exposure measurement for the sampled shift is
17.3 mg-hr/m\3\, which exceeds the 2.0 mg/m\3\ standard for an 8-hour
shift (i.e., 16 mg-hr/m\3\).
Using an approved gravimetric sampler, the standard for respirable
quartz dust (i.e., 0.1 mg/m\3\) will be exceeded when the total amount
of quartz dust on a filter during the work shift exceeds 0.07 mg,
regardless of the shift's length. For example, if 0.08 mg of quartz
dust were accumulated over the course of a 12-hour shift, the
equivalent concentration of respirable quartz dust would be calculated
as:
[GRAPHIC] [TIFF OMITTED] TP19OC10.000
This is the same value as would be obtained if 0.08 mg of quartz dust
were accumulated on an 8-hour shift.
[GRAPHIC] [TIFF OMITTED] TP19OC10.001
For the CPDM, MSHA believes the manufacturer can make modifications
to the CPDM firmware so that the device will automatically report the
concentration measurements as MRE equivalent concentrations. After the
certified person programs the CPDM for the length of the full shift of
the occupation, work position, or DA being sampled, the CPDM would be
capable of providing the 8-hour equivalent concentration. The CPDM's
end-of-shift readout would provide the equivalent concentration.
The proposed definition of equivalent concentration is necessary to
protect miners who work nontraditional or extended shifts from
unnecessary health risks.
Mechanized Mining Unit (MMU)
The proposed definition of mechanized mining unit (MMU) would
incorporate existing requirements in Sec. 70.207(f)(1) and (f)(2) and
make revisions. Like the existing standard, MSHA would assign each MMU
a four-digit identification number which remains with the MMU. When two
sets of mining equipment are used in a series of working places within
the same working section and only one production crew is employed, the
two sets of equipment will be identified as a single MMU.
The proposal would revise the definition to require that each set
of mining equipment be identified as a separate MMU if two sets of
mining equipment are used in a series of working places in the same
working section and two production crews are employed. This would be a
change from the existing standard which requires that the MMUs must be
``simultaneously engaged in the production of material'' within the
same working section in order to be identified as separate MMUs. MSHA
believes the change is necessary because miners can be exposed to
respirable dust and quartz when there is no simultaneous production of
material. The proposal would protect the health of miners on the
working section.
The proposal would also make a conforming change in a reference
since existing Sec. 70.207(e) would be redesignated as proposed Sec.
70.207(b).
Normal Production Shift
The proposed definition of normal production shift would revise the
existing definition to mean (1) a production shift during which the
amount of material produced by an MMU is at least equal to the average
production recorded for the most recent 30 production shifts or (2) if
fewer than 30 shifts of production data are available, a production
shift during which the amount of material produced by an MMU is at
least equal to the average production recorded by the operator for all
of the MMU's production shifts.
In its 1995 Criteria Document, NIOSH recommended that, consistent
with standard industrial hygiene practice (which requires exposure
measurements be collected during typical work shifts), for a production
shift to be considered a ``normal production shift,'' it must produce
at least 80% of the average production over the last 30 production
shifts. NIOSH stated that the definition of a normal production shift
should be similar to or more stringent than that
[[Page 64418]]
used when seeking approval of the dust control plan. NIOSH further
stated that a production-level threshold should ensure that exposure
conditions are comparable between sampled and unsampled shifts.
The Dust Advisory Committee recommended that respirable dust
samples be taken when production is sufficiently close to normal
production, which it stated should be defined as 90% of the average
production of the last 30 production shifts.
MSHA believes that when an MMU has operated for at least 30
production shifts, a normal production shift should represent at least
the average production of those shifts. MSHA's existing practice is to
use 30 production shifts as a benchmark for establishing an MMU's
typical output. MSHA believes that 30 production shifts provide
sufficient historical data to give a reliable representation of an
MMU's typical production. MSHA also believes that using a production
level equal to at least the average production of the most recent 30
production shifts as the production level for sampling would ensure
that samples are representative of the dust levels to which miners are
actually exposed. The proposal would assure that production during
sampling is representative of normal mining conditions.
Under the proposal, when an MMU has operated for fewer than 30
production shifts, the average production of all production shifts
would be considered to determine a ``normal production shift.'' MSHA
believes it is essential to use records from all of an MMU's production
shifts when it has operated for fewer than 30 shifts because this would
result in a more reliable determination of the shift's production and a
miner's exposure.
Under existing practice, if an operator encounters unique mining
conditions, such as when the coal seam narrows due to a rock intrusion
running through the coal bed, MSHA allows the operator to submit any
relevant information to the District Manager so that average production
levels for sampling can be adjusted. Under the proposal, MSHA would
continue this practice.
The level of coal production has a significant impact on dust
generation. As production increases, the amount of respirable coal mine
dust generated also increases. Under the existing definition of
``normal production shift,'' MSHA intended to accommodate fluctuations
in mining cycles; however, MSHA believes that the existing definition
of at least 50% of average production for the last 5 valid samples
results in sampling during shifts that are not representative of
typical conditions. If an operator's bimonthly dust samples are taken
when production is substantially below average production, the sample
results will underestimate miners' typical dust exposure. The 1992 Coal
Mine Respirable Dust Task Group (U.S. Department of Labor, MSHA, 1992)
acknowledged that the procedure for defining a normal production shift
for sampling purposes was inadequate and that the sampling program was
susceptible to intentionally reduced production during sampling
periods.
MSHA believes that the proposed definition of ``normal production
shift'' would significantly improve miners' health by requiring
operators' samples to be collected during shifts that are more
representative of typical conditions at the mine. The Agency solicits
comment on the approach taken in the proposed rule. Please be specific
in your comments and include the rationale for suggested alternatives.
Other Designated Occupation (ODO)
The proposal would add a new definition for other designated
occupation (ODO). Under the proposal, the ODO would be defined as
another occupation on a mechanized mining unit that is designated by
the District Manager for sampling. Each ODO would be identified by a
four-digit identification number assigned by MSHA.
MSHA designates high risk occupations to be sampled by operators.
These ``designated occupations'' (DOs) are those based on Agency data
and experience that are exposed to the highest respirable dust
concentrations in the MMU. However, MSHA's sampling data reveal that
limiting sampling to the DO may not adequately protect other miners in
the MMU. For this reason, MSHA identifies additional underground
occupations, other than the DOs, that also present a risk for excessive
dust exposure. Under MSHA's existing practice, these other occupations
are identified as ``non-designated occupations,'' but would be referred
to as ODOs under the proposal. MSHA would continue its existing
practice of using historical sampling data on the MMU, as well as
evaluating the mining system, in order to identify ODOs.
Quartz
The proposal would revise the existing definition of quartz to mean
crystalline silicon dioxide (SiO2) as measured by:
(1) MSHA Analytical Method P-7: Infrared Determination of Quartz in
Respirable Coal Mine Dust; or
(2) Any method approved by MSHA as providing a measurement of
quartz equivalent to that obtained by MSHA Analytical Method P-7.
The proposed definition would provide notice to interested parties
of the analytical procedure that MSHA uses to measure quartz in coal
mine dust. It would also provide notice to certified laboratories that
may want to perform quartz analyses using the same procedure.
The definition of ``quartz'' would be expanded to provide MSHA the
flexibility to accommodate new, improved technology for analyzing
quartz once it is demonstrated to provide quartz measurements that are
equivalent to the existing analytical method.
Representative Samples
The proposal would add a new definition for representative samples.
Representative samples would be defined as respirable dust samples that
reflect typical dust concentration levels and normal mining activity in
the active workings during which the amount of material produced is
equivalent to a normal production shift. The term ``normal production
shift'' is discussed elsewhere in the preamble related to proposed
Sec. 70.2.
MSHA intends that, under the proposal, samples would be
representative if taken when miners are in positions and physical
locations performing tasks that they usually perform on non-sampling
days. To be considered representative samples, operators should also
sample when mining activities, such as production methods, reflect
usual operations on non-sampling days (e.g., when approved cut
sequences are followed, and the sequence of mining includes the turning
of multiple crosscuts).
The proposed definition would ensure that operators conduct dust
sampling when working conditions are representative of working
conditions during periods of non-sampling; this would avoid introducing
bias into sampling. To provide optimum protection for miners' health,
sampling must accurately represent miners' dust exposures. This would
allow operators and MSHA to effectively evaluate the performance of
dust controls and the adequacy and effectiveness of operators' approved
plans.
Weekly Accumulated Exposure (WAE)
The proposal would add a new definition, weekly accumulated
[[Page 64419]]
exposure (WAE), which would apply when operators use a CPDM. Under the
proposal, weekly accumulated exposure (WAE) would be defined as the
total exposure to respirable coal mine dust, expressed in milligram-
hour (mg-hr) per cubic meter of air (mg-hr/m\3\), accumulated by an
occupation during a work week (Sunday thru Saturday). The proposed
definition includes the calculation for determining the WAE.
The WAE would be calculated by first multiplying each daily end-of-
shift equivalent concentration, expressed as mg/m\3\ as reported by the
CPDM (i.e., the average exposure over the shift), by 8 hours to obtain
the total daily exposure (concentration x hours = exposure, expressed
as mg-hr/m\3\). The daily end-of-shift equivalent concentration would
be the respirable dust concentration for the sampled entity expressed
as an 8-hour equivalent, even when the shift length exceeds 8 hours
(see proposed definition of equivalent concentration). Since the daily
end-of-shift equivalent concentration is an 8-hour equivalent, it would
be multiplied by 8 hours to obtain the total daily exposure, regardless
of actual shift length.
The second step in calculating the WAE would be to total the daily
exposures of the occupation sampled for the work week. The result would
be the accumulated exposure for the work week. For example: Miner ``A''
works Sunday-Thursday, 10 hours each day. Assuming the applicable
standard is 1.5 mg/m\3\, the following data are obtained:
----------------------------------------------------------------------------------------------------------------
Shift length End-of-shift equivalent Daily accumulated
Day (hrs) concentration reported exposure
----------------------------------------------------------------------------------------------------------------
Sun..................................... 10 1.5 mg/m\3\............... 12 mg-hr/m\3\ (1.5 mg/m\3\
x 8 hrs).
Mon..................................... 10 1.5 mg/m\3\............... 12 mg-hr/m\3\.
Tue..................................... 10 1.5 mg/m\3\............... 12 mg-hr/m\3\.
Wed..................................... 10 1.5 mg/m\3\............... 12 mg-hr/m\3\.
Thur.................................... 10 1.5 mg/m\3\............... 12 mg-hr/m\3\.
---------------------------
WAE................................. .............. .......................... = 60 mg-hr/m\3\.
----------------------------------------------------------------------------------------------------------------
MSHA believes that determining the WAE for an occupation in the
manner proposed would cause mine operators to closely monitor the daily
accumulated exposure of each occupation sampled during the week. If the
accumulated exposure approaches the weekly permissible accumulated
exposure (WPAE), defined below, when additional shifts remain to be
worked, it would indicate that the average equivalent concentration is
getting close to exceeding the applicable standard. The operator may
then need to take action to avoid overexposing the miners assigned to
that occupation.
Weekly Permissible Accumulated Exposure (WPAE)
The proposal would add a new definition, weekly permissible
accumulated exposure (WPAE), which would apply when operators use a
CPDM. WPAE would be defined as the maximum amount of accumulated
exposure to respirable coal mine dust, expressed in mg-hr per cubic
meter of air (mg-hr/m\3\), permitted for an occupation during a 40-hr
work week (Sunday thru Saturday). The WPAE would be determined by
multiplying the applicable respirable dust standard by 40 hours. For
example, if the applicable standard were 1.5 mg/m\3\, the WPAE would be
60 mg-hr/m\3\ (40 hours x 1.5 mg/m\3\).
MSHA believes that the proposed WPAE definition would enable mine
operators to effectively compare a miner's weekly accumulated exposure
(WAE), defined previously, with the WPAE to evaluate compliance with
the applicable standard at the completion of the work week.
B. Section 70.100 Respirable Dust Standards
The proposed rule would, over a phase-in period, lower the
concentration limit for respirable coal mine dust in coal mines.
Proposed paragraph (a)(1) would retain the existing requirement
that mine operators continuously maintain the average concentration of
respirable dust in the mine atmosphere during each shift to which each
miner in the active workings of each mine is exposed at or below 2.0
mg/m\3\ of respirable dust.
Proposed paragraphs (a)(2) through (a)(4) are new and would require
mine operators to lower dust levels, over a 24-month phase-in period,
from the existing level of 2.0 mg/m\3\ of air to 1.0 mg/m\3\. MSHA and
mine operator data indicate that, under the existing sampling program,
the majority of miners' exposures are at or below the limits in the
proposed rule. These data reflect sampling and measurement requirements
under MSHA's existing standard. MSHA anticipates that the cumulative
effects of the major changes in the proposal, i.e., lowering the
respirable dust standard, single shift sampling, full shift sampling,
and the definition of ``normal production shift'', would result in
higher exposures than those under the existing program. MSHA
anticipates that most mines would have to implement additional controls
and work practices to reduce dust levels to those expected under the
proposal (see Section VIII, Feasibility, in the preamble). In a small
number of cases, MSHA expects that operators may have to initially: (1)
Limit production; (2) reconfigure major ventilation sources, e.g.,
install a new shaft; or (3) install major ventilation controls. MSHA
anticipates that, over time, these operators would be able to meet the
proposed exposure limits. MSHA believes that with the proposed phase-in
of exposure limits, all coal mines, regardless of their size and type
of mining system, would have sufficient time to either upgrade existing
controls or to install additional measures to meet the proposed
requirements.
MSHA is proposing a 24-month phase-in period to allow the mining
community the opportunity to identify, develop and implement feasible
engineering controls; train miners and mine management in new
technology and control measures; and to improve their overall dust
control program. The phase-in period is consistent with the Dust
Advisory Committee's recommendation. MSHA believes that the phase-in
period would provide an appropriate amount of time for mine operators
to feasibly come into compliance with the new proposed limit. MSHA
specifically requests comment on the phase-in period. Please be
specific in your comments and include the rationale for suggested
alternatives.
MSHA is proposing a 1.0 mg/m\3\ standard as a time-weighted average
for an 8-hour shift based on the best available evidence that shows
this level would significantly reduce miners' risks of material
impairment of health or
[[Page 64420]]
functional capacity. Section 101(a)(1) of the Mine Act requires that
the Secretary take certain action when a recommendation to issue a
rule, accompanied by a Criteria Document, is received from NIOSH. The
Secretary must refer the recommendation to an advisory committee, or
publish the recommendation as a proposed rule, or publish in the
Federal Register the determination and reasons not to do so.
In 1995, NIOSH published and submitted to MSHA a Criteria Document
on Occupational Exposure to Respirable Coal Mine Dust. Consistent with
the Mine Act, the Secretary referred the NIOSH Criteria Document to an
advisory committee (Dust Advisory Committee). This proposal is
consistent with recommendations of the NIOSH Criteria Document and the
Dust Advisory Committee.
In its Criteria Document, NIOSH recommended respirable dust
exposures be limited to 1 mg/m\3\ as a time-weighted average (TWA)
concentration for up to 10 hours per day during a 40-hour work week as
measured according to existing MSHA methods. This recommended exposure
level (REL) was based on exposure-response studies of U.S. coal miners
participating in the National Study of Coal Workers' Pneumoconiosis
(NSCWP) and sampling data collected by the Bureau of Mines from 1969-
1971 and MSHA from 1985-88. NIOSH used an average concentration of 0.5
mg/m\3\ of respirable dust in its disease risk estimates because, at
that time, it constituted the lower range of the exposure data. NIOSH
determined that extrapolations beyond the range of the existing
exposure data would have carried considerable uncertainty. NIOSH found
that, at a mean concentration of 0.5 mg/m\3\, the excess risk of
morbidity from progressive massive fibrosis at age 65 exceeded 1/1,000
for all durations of exposure and coal ranks evaluated, including 15
years of exposure to medium/low-rank coal, believed to be least toxic.
NIOSH expected that long-term average dust concentrations would be
below 0.5 mg/m\3\ if miners' daily exposures were kept below the REL of
1 mg/m\3\ (NIOSH 1995).
MSHA's QRA used respirable dust exposure data collected from 2004
through 2008 and published quantitative studies on coal workers'
morbidity from black lung (Attfield and Seixas, 1995) and mortality
from nonmalignant respiratory diseases (Attfield and Kuempel (2008))
and severe emphysema (Kuempel et al., 2009(a)) to estimate excess
disease risks in U.S. miners. The QRA estimated disease risks after 45
years of full-shift occupational exposure at observed exposure levels
under the existing standard. The QRA results indicate that, in every
exposure category, exposure under the existing standards places miners
at a significant risk of material impairment of health. In addition,
MSHA found that average dust concentrations exceed the proposed
exposure limit of 1.0 mg/m\3\ at a number of work locations in every
occupational category. The percentage of work locations that would
exceed the proposed exposure limit of 1.0 mg/m\3\ ranges from less than
1 percent for a few surface occupations to more than 70 percent for
miners working on the longwall tailgate. The percentages are generally
greater for underground occupations than for surface occupations. A
statistically significant percentage of surface work locations
(generally cleaning plant operations and surface drilling) have average
dust concentrations exceeding the proposed exposure limit. For part 90
miners, the average dust concentration exceeds 0.5 mg/m\3\ at more than
20 percent of the work locations (see Section V of this preamble for a
more detailed discussion of the QRA).
In 1996, the Dust Advisory Committee also recognized that
overexposure to respirable coal mine dust remained a problem and
recommended unanimously that MSHA consider lowering the allowable level
of exposure to coal mine dust. The Committee reviewed MSHA monitoring
data and scientific studies provided by NIOSH, including its 1995
Criteria Document. The Committee concluded that ``there is substantial
evidence that either a significant number of miners are currently being
exposed to coal mine dust at levels well in excess of 2.0 mg/m\3\ or
that the current exposure limit for coal mine dust is insufficiently
protective.''
NIOSH also recommended that for single, full-shift samples used to
determine noncompliance, MSHA should make no upward adjustment to
account for measurement uncertainty. The Dust Advisory Committee made
the same recommendation, but it was not supported by all of the
Committee members. The proposed rule does not adopt this
recommendation; a more detailed discussion on adjusting the exposure
limit to account for measurement uncertainty is included in the
section-by-section analysis for proposed Sec. 70.207 and in Appendix A
of the preamble.
While the proposed 1.0 mg/m\3\ standard would significantly reduce
the risk of impairment, disease, and premature death, MSHA's QRA
reveals some remaining risk at the proposed limit. However, MSHA
believes that other provisions of the proposal (e.g., changes in the
definition of normal production shift, and sampling for a full shift)
would reduce this risk. The impact of these other provisions was not
considered in the QRA.
Proposed Sec. Sec. 70.100(b)(2), 75.350(b)(3)(i)(B) and 90.100(b)
would revise the existing requirements that operators must maintain the
concentration of respirable dust at or below 1.0 mg/m\3\, to 0.5 mg/
m\3\ of air, for intake air courses, belt air courses, and for part 90
miners to conform to the proposed lower limit. MSHA is proposing a
phase-in period of six months for operators to meet this lower level.
MSHA has included these conforming changes in the proposal in
recognition of the Agency's longstanding regulatory history and policy
with respect to areas of the mine and part 90 miners where dust
presents additional health risks. MSHA is proposing a six-month phase-
in because, based on Agency data for these areas of the mine and part
90 miners, MSHA believes this phase-in period would provide an
appropriate amount of time for mine operators to feasibly come into
compliance with the new proposed limits. MSHA solicits comment on the
proposed phase-in periods for lowering the respirable dust limits from
1.0 mg/m\3\ to 0.5 mg/m\3\ for intake air courses, belt air courses,
and part 90 miners. Please include a detailed rationale with any
comment or recommendation that is submitted.
As presented in the Preliminary Regulatory Economic Analysis (PREA)
and summarized later in this preamble, MSHA has determined that this
proposed standard is feasible, both technologically and economically.
Dust exposures at most mine operations average less than 1.0 mg/m\3\
under existing MSHA and operator sampling and measurement programs.
MSHA anticipates that proposed changes to the existing program
initially would cause an increase in operations where dust
concentrations would exceed the proposed exposure limits. As discussed
in the PREA, however, there are various engineering control methods and
work practices that operators can use to meet the proposed standards.
Since most methods of reducing exposure to respirable dust already
exist and have been demonstrated to be both technologically and
economically feasible and effective, MSHA believes that the two year
phase-in period is sufficient time for mine operators to reduce
respirable dust exposures to an acceptable level.
[[Page 64421]]
C. Section 70.101 Respirable Dust Standard When Quartz Is Present
The proposed rule would revise the standard for respirable dust
when quartz is present in coal mines. Overexposure to respirable coal
mine dust containing quartz has been associated with some miners
developing silicosis and black lung, irreversible but preventable lung
diseases, which ultimately may be fatal.
Proposed paragraph (a) is new and would establish a separate
standard for respirable quartz. It would require operators to
continuously maintain the average concentration of respirable quartz
dust at or below 0.1 mg/m\3\ (100 [micro]g/m\3\) during each shift.
The existing standard limits miners' exposure to respirable quartz
by reducing the applicable respirable dust standard (or limit) based on
a formula that was prescribed by the Department of Health, Education
and Welfare (now DHHS). The formula, which applies when the respirable
coal mine dust contains more than 5.0 percent quartz, is 10 divided by
the concentration of quartz, expressed as a percentage. The formula
results in a continuous reduction in the respirable dust standard as
the quartz content in respirable dust in the mine atmosphere increases
over 5 percent (i.e., the higher the percentage of quartz, the lower
the respirable dust standard). Application of the formula was designed
to limit a miner's exposure to respirable quartz to 0.1 mg/m\3\ (100
[micro]g mg/m\3\), based on a 2.0 mg/m\3\ respirable dust standard.
One commenter on the CPDM RFI stated that controlling respirable
dust containing silica to the current 2.0 mg/m\3\ standard does not
provide adequate protection for miners because of the greater lung
toxicity of crystalline silica. MSHA is not establishing a new quartz
limit in this rulemaking. MSHA will separately address a respirable
crystalline silica standard for mining. (See the April 26, 2010
Regulatory Agenda entry at http://www.msha.gov/regsinfo.htm.
Proposed paragraph (b) would retain the existing requirement to
limit a miner's exposure to respirable quartz by establishing a reduced
respirable dust standard. To be consistent with paragraph (a),
paragraph (b) would apply when the concentration of respirable quartz
dust exceeds 100 [micro]g/mg\3\. Under the existing standard, if
analysis of an MSHA inspector respirable dust sample contains more than
5 percent quartz, then a reduced respirable dust standard is calculated
and the operator is notified of the reduced standard. Under the
proposal, the formula could not be used to establish a dust standard
greater than the dust standard under proposed Sec. 70.100(a).
A commenter on the CPDM RFI recommended gravimetric sampling for
longer time periods or over multiple shifts to assure an adequate
amount of total dust content is achieved to analyze for quartz. MSHA
believes, that with the current analytical procedure (NIOSH Method P-7,
infrared analysis), it is not necessary to sample for longer than an 8-
hour shift. The limit of quantification of Method P-7 is 25 [micro]g,
which is the lowest amount of quartz that can be identified and
quantitatively measured with accuracy and precision. If this mass is
accumulated on a filter during an 8-hour shift with the sampler
operating at 2.0 liters per minute, the concentration of quartz \1\
---------------------------------------------------------------------------
\1\ See equation above.
[GRAPHIC] [TIFF OMITTED] TP19OC10.002
(approximately 36 [micro]g/m\3\) would be well below the standard of
100 [micro]g/m\3\. If there is too little quartz to analyze, exposure
is well below the standard.
D. Section 70.201 Sampling; General and Technical Requirements
The proposed rule would revise the operator sampling requirements
in existing Sec. 70.201 and would phase-in the use of CPDMs to take
respirable dust samples of the Designated Occupation (DO) and Other
Designated Occupations (ODO), a new term defined in proposed Sec.
70.2. MSHA is also proposing that operators take samples, with either a
CMDPSU or CPDM, of DAs that are not associated with an MMU.
Under the existing standard, coal mine operators and MSHA use
approved CMDPSUs to determine the concentration of respirable dust in
the coal mine atmosphere. The CMDPSU samples the mine atmosphere by
drawing mine air through a filter cassette that collects respirable
coal mine dust. At the end of a full shift or 8 hours, whichever time
is less, the cassette is sent to MSHA for processing. Each cassette is
weighed under controlled conditions to determine the average
concentration of respirable coal mine dust to which the affected miners
were exposed. The existing process results in a delay between the time
a sample is taken and when results are available to mine operators,
miners, and MSHA.
The CPDM is a respirable dust sampler and gravimetric analysis
device incorporated into the miner's cap lamp battery case as a single
package located on the belt. The new cap lamp battery case contains all
the components, including two separate batteries, to enable the dust
monitor and cap lamp to operate independently. Air from a miner's work
environment enters the sampling device through an inlet located
adjacent to the lens of the cap light on the miner's hard hat and flows
via a flexible tube that runs parallel to the lamp cord to the belt-
mounted device. The air stream is first coursed through a Higgins-
Dewell (HD) cyclone at a flow rate of 2.2 L/min to separate the non-
respirable dust, so that only airborne particles that could penetrate
to the lung will be analyzed by the device. From there, the air stream
flows through: (1) A heater to remove excess moisture; (2) a 14-mm
diameter glass fiber filter where the particles are collected; (3) a
flow rate sensor; and (4) a computer-controlled pump.
The CPDM is designed to operate continuously for up to 12 hours.
The display on the device continuously shows: (1) The respirable dust
concentration calculated at distinct 30-minute intervals; (2) the
average respirable dust exposure from the beginning of the shift; and
(3) the percent of exposure limit. Through the display, both the miners
wearing the device and the mine operator are aware of respirable dust
exposures. This information can be used to validate whether dust
control parameters are working as intended to assure that miners are
not exposed to excessive concentrations of respirable coal mine dust.
The CPDM is capable of being used in a shift mode, in which the
device is programmed by certified persons to operate for specific shift
lengths (e.g., 8, 10, 12 hours) to monitor a Designated Occupation or
other sampling entity's exposure, or in an engineering mode for
[[Page 64422]]
shorter-term evaluations. If the device is operated in an engineering
mode, the certified person would operate it for short periods of time
within the shift to record respirable dust levels during specific
mining activities or at specific dust-generation sources in the mine.
The display has various screens that show the: (1) Time of day; (2)
elapsed time since beginning of the shift; (3) total amount of
respirable dust accumulated on the filter since the start of sampling,
which is stored in an internal memory for analysis; (4) dust
concentrations; (5) operational parameters including flow rate, filter
pressure, temperature, etc.; and (6) a bar graph of the average
respirable dust concentration during the entire sampling period. On the
bar graph, each bar represents the average concentration value for each
previous 30-minute interval, with a new bar added to the graph every 30
minutes. This, along with other information, is stored in the CPDM and
can be accessed and downloaded with a personal computer at the end of
the shift for analysis and recordkeeping.
MSHA and NIOSH published the part 74 final rule on April 6, 2010
(75 FR 17512) that revised the approval requirements for the CMDPSU and
established new approval requirements for the CPDM. The new CPDM
approval requirements establish a science-based, feasible baseline for
the performance of the new CPDM technology based on published NIOSH
research (Volkwein, JC, et al., 2006, and Volkwein, JC et al., 2004).
The final rule reflects current evaluation methods for assessment of
direct-reading monitors. These methods have been summarized and issued
as general guidelines by NIOSH in ``Components for the Evaluation of
Direct-Reading Monitors for Gases and Vapors,'' (Kennedy, ER, et al.,
1995). The requirements also reflect the state-of-the-art technology of
the CPDM prototype.
NIOSH requires all applicants for CPDM sampling device approvals to
use the NIOSH testing procedure ``Continuous Personal Dust Monitor
Accuracy Testing'' to evaluate the accuracy, reliability, precision,
and bias of a CPDM. The procedure is available at the NIOSH Web site:
http://www.cdc.gov/niosh/mining. The procedure requires that testing be
performed under diverse environmental conditions and that test results
be submitted, in writing, to NIOSH. The protocol assures that all CPDMs
are evaluated consistently. As stated in the preamble to the part 74
final rule, NIOSH will provide assistance to applicants, as necessary,
to make the arrangement of such testing feasible.
NIOSH researchers (Page, S et al. 2008) determined that
measurements of respirable dust concentrations using the CPDM and
CMDPSU are comparable. The MRE was used as the basis for the existing
coal mine respirable dust standards and had been designed specifically
to match the United Kingdom British Medical Research Council (BMRC)
criterion. The CMDPSU is used with a 1.38 multiplier to convert
readings to the BMRC criterion.
In order to compare CPDM measurements with those of the CMDPSU,
NIOSH conducted field research. Researchers used a stratified random
sampling design that incorporated a proportionate allocation strategy
to select a sample of MMUs representative of all U.S. underground coal
mines. A sample of 180 MMUs was chosen, representing approximately 20%
of the MMUs in production at the time the sample was selected
(September 2004). Dust concentrations were monitored concurrently by
both CMDPSUs and CPDMs for a full shift. A total of 129 valid CPDM/
CMDPSU dust sample sets were obtained. A weighted linear regression
analysis of this database shows that, in comparison with the CMDPSU,
the CPDM requires a mass equivalency conversion multiplier of 1.05 [95%
Confidence Interval (1.03 to 1.08)] to produce a concentration that is
an MRE equivalent concentration similar to the CMDPSU. This research
shows that the two types of sampling units are very comparable due to
this linear relationship.
The Dust Advisory Committee unanimously recommended that CPDM
technology, when verified, be broadly used along with other sampling
methods for evaluation of dust control at all MMUs and other high risk
locations. The Committee further recommended that once verified as
reliable, MSHA should use CPDM data for assessing operator compliance
in controlling miner exposures and should consider use of CPDM data in
compliance determinations.
MSHA published a request for information on October 14, 2009 (74 FR
52708) on the use of the CPDM as a sampling device to measure a miner's
exposure to respirable coal mine dust. All commenters generally agreed
that the required use of a CPDM would enhance the protection of miners'
health.
Under the proposed rule, Sec. 70.201(a) would require the operator
to use the CMDPSU to take respirable dust samples of the DO in each MMU
until replaced by the CPDM. On [date 12 months after the effective date
of the final rule], operators must replace the CMDPSU with the CPDM to
sample the DO in each MMU, unless notified by the Secretary. The
operator would be allowed, however, to start using the CPDM anytime
during the 12-month phase-in period.
Proposed paragraph (b), which is new, would require that DAs
associated with an MMU be sampled with an approved CMDPSU until
replaced by a CPDM. Under the existing standard, DAs associated with an
MMU are sampled with an approved CMDPSU. Proposed paragraph (b) would
also require that on [date 18 months after effective date of the final
rule], DAs associated with an MMU would be redesignated as ODOs. The
proposal would require existing DAs associated with an MMU to be
designated as ODOs because the CPDM would be used to measure respirable
dust exposure of occupations on an MMU rather than areas associated
with an MMU. The proposal would help assure that the sample reflects an
accurate measurement of the occupation monitored.
To provide comparable protection for ODOs as for DOs, proposed
paragraph (c) would require that the CPDM be used to sample ODOs after
a proposed phase-in period of 18 months, unless notified by the
Secretary.
The proposed rule would require, over an 18-month period, a phase-
in of the use of CPDMs so that manufacturers have enough time to
produce the necessary quantity of units and that MSHA and operators
have enough time to train necessary personnel in the use and care of
the device. The Agency recognizes that availability of the device may
present logistical and other issues at the time the final rule becomes
effective. The Agency intends to address the issue of availability in
two ways. First, the proposal would require the use of the CPDM to
sample (1) the DO in each MMU, and (2) each ODO, within a 12-month and
18-month period, respectively, unless notified by the Secretary. If
MSHA determines that there will be logistical and feasibility issues
surrounding the availability of CPDMs by the time the final rule
becomes effective, the Agency will, through publication in the Federal
Register, notify the public of the Agency's plans including any other
action as necessary. Second, assuming no logistical or feasibility
issues concerning the availability of CPDMs, and depending upon
manufacturer projections, if CPDMs are not available in sufficient
quantities, MSHA will accept, as good faith evidence of compliance with
the final rule, a valid,
[[Page 64423]]
bona fide, written purchase order with a firm delivery date for the
CPDMs.
For CPDM implementation, MSHA considered requiring: All coal mines
to begin using them on the effective date of the final rule; different
phase-in periods at underground coal mines based on the type of mining
operations and mining heights (e.g., longwall; continuous miner
operations subject to reduced standards due to quartz and with mining
heights that exceed 40 inches; or mining operations with mining heights
that are 40 inches or less); and different phase-in periods for
specific geographic regions (represented by Coal Mine Safety and Health
Districts) where MSHA is aware of higher quartz concentrations in coal
mine dust, higher respirable coal mine dust levels, and higher
prevalence of CWP among working underground coal miners. After
reviewing the options, MSHA believes that it would not be practical or
feasible to adopt implementation dates based on the methods of mining
or mine locations, or to require use of CPDMs in all mines on the
effective date of the final rule. Instead, the proposed rule would
require operators to begin using CPDMS to sample certain underground
occupations after a 12- or 18-month phase-in period. The Agency
requests comments on the proposed phase-in of the use of CPDMs,
including the time period, and the Agency's intent with respect to
availability of CPDMs. Please be specific in your comments and include
the rationale for suggested alternatives.
The proposed rule would move existing Sec. 70.201(d), which
requires that operators, during the time for abatement of a dust
citation, take corrective action to lower dust concentrations and then
take additional dust samples. These requirements would be moved to
proposed Sec. Sec. 70.207 and 70.209, which address sampling when
using a CMDPSU.
Proposed paragraph (d) would permit the operator to continue to use
approved CMDPSUs or CPDMs to sample respirable coal mine dust in each
DA that is not associated with an MMU (i.e., an outby DA). MSHA is
allowing operators to continue to use the CMDPSU because these samples
are area samples and CPDMs are designed for a person to wear. MSHA does
not believe that requiring the CPDM to be used to sample DAs is the
best use of the device. The Agency believes that the CMDPSU and reports
of sample results will provide the information needed to evaluate the
dust controls used in the DA and to ensure miners working in these
areas are protected.
Proposed paragraph (e), redesignated from existing paragraph (b),
would retain the requirement that sampling devices be worn or carried
directly to and from the MMU or DA to be sampled, and be operated
portal to portal. It would also revise the existing standard and
require that sampling devices remain with the occupation or DA being
sampled and must be operational during the entire shift, even when the
shift exceeds 8 hours (extended shift). This would include the time
spent in the MMU or DA and while traveling to and from the MMU or DA
being sampled. Under existing Sec. 70.201(b), sampling devices must
operate only up to 8 hours. Under the 2003 plan verification proposal,
sampling devices collecting MMU verification samples and quarterly
samples would have to be operational only during the period spent in
the MMU. Proposed Sec. 70.201(e) would account for all the time that a
miner works and is exposed to respirable coal dust.
Some commenters in response to the 2003 proposed rule stated that
all sampling, whether for compliance or verification purposes, should
be conducted full-shift and portal-to-portal in order to obtain an
accurate measurement of the concentration of respirable dust to which a
miner is exposed. These commenters believed that a full-shift would
have to account for the entire time a miner is underground to get a
miner's true exposure. One commenter explained that many miners ride
mantrips onto the section, some for as long as an hour, during which
time the miners are exposed to dust. The commenter further stated that
the exposure obtained during a miner's transportation to the section
should be accounted for.
The proposed change related to extended work shifts is consistent
with the Dust Advisory Committee report. Although not unanimous, the
Committee recommended that exposure limits should be adjusted for
extended work shifts. In support of this recommendation, the Committee
reviewed exposure data and stated that the data showed that work in
excess of 8 hours per day is now common in the mining industry. The
Committee further stated that the data were consistent with miners'
reports to the Committee. In its discussion on extended shifts, the
Committee addressed increased health risks to miners and stated that
exposures longer than 8 hours per day result in greater respirable dust
deposition, with a shorter period of dust clearance from the lungs
prior to the next exposure.
As further support for the proposal, the Coal Mine Respirable Dust
Task Group concluded that current regulations limiting the duration of
sampling to 8 hours do not provide for adequate assessment of
respirable dust exposure during nontraditional shifts of more than 8
hours. (U.S. Department of Labor, MSHA, 1992). Also, MSHA conducted a
survey in August 2002 that found 48 percent of producing MMUs operated
at least a 9-hour shift.
Working extended shifts increases exposure, resulting in increased
health risks to miners, both in terms of incidence and severity. The
proposal with respect to extended shifts is consistent with generally
accepted industrial hygiene principles today, which take into
consideration all of the time a worker is exposed to an airborne
contaminant, even if it exceeds 8 hours a day.
Under the proposal, the sampling device must remain with the
occupation or DA being sampled during the entire shift to ensure that
respirable dust concentration levels are continuously being monitored.
If a miner in an occupation being sampled changes from one occupation
to another during the production shift, the sampling device must remain
with the occupation designated for sampling. For example, if using a
CPDM to sample a DO (continuous mining machine operator) on a
continuous mining section and the duties of the machine operator are
divided equally between Miner 1 and Miner 2, the dust sampler must be
worn for half the shift by Miner 1 and the other half by Miner 2, while
each is operating the continuous mining machine. Similarly, under the
proposal, a dust sampler must remain at the DA during the entire shift.
Once sampling results are available, mine operators and MSHA would
analyze the data to determine if adjustments need to be made (e.g. re-
designating DOs or modifying dust control parameters).
Proposed paragraph (e)(1) is new and would address work shifts
longer than 12 hours. It would require that when using a CMPDSU and the
work shift to be sampled is longer than 12 hours, the operator would
have to switch-out the unit's sampling pump prior to the 13th hour of
operation. MSHA notes that the manufacturer of the CMDPSU states in its
instructional manual that the typical battery-pack service life varies
from a minimum of 8 hours to a maximum of 11.5 hours. However, MSHA is
aware that the testing parameters are more rigorous than the actual
conditions in the mine. The pumps are tested in extreme levels of coal
dust which cause large amounts of dust to accumulate on
[[Page 64424]]
the filter. This leads to high back pressure, requiring the pump to
work harder, and resulting in a shorter battery life. With the use of
proper dust controls, the pump will not have to work as hard, thereby
prolonging the battery life. To address shifts greater than 12 hours,
the Agency is proposing to require that the unit be switched-out prior
to the 13th hour to prevent disruption in operation and to provide
continued protection for miners.
Paragraph (e)(2) is new and would add a similar requirement to
address work shifts longer than 12 hours for operators who use CPDMs.
It would require that the operator switch-out the CPDM with a fully
charged device prior to the 13th hour of operation, if the work shift
to be sampled is longer than 12 hours. NIOSH's Report of
Investigations, 9669, Laboratory and Field Performance of a
Continuously Measuring Personal Respirable Dust Monitor suggests that
12 hours of battery power be provided to the CPDM. Consistent with
NIOSH's report, the Agency is proposing to require that the CPDM be
switched-out prior to the 13th hour to prevent disruption in operation
and to provide continued protection for miners. The Agency requests
comments on an appropriate time that operators should switch out the
CMDPSU's sampling pump or the CPDM when working longer than 12 hours.
Please be specific in your comments and include rationale for your
suggestions.
Proposed paragraphs (f)(1) through (f)(4), are derived from the
2003 plan verification proposal and, if using a CMDPSU, would require:
the mine operator to use one control filter for each shift of sampling;
each control filter to have the same pre-weight date (noted on the dust
data card) as the filters used for sampling; each control filter to
remain plugged at all times; each control filter to be exposed to the
same time, temperature, and handling conditions as the filter used for
sampling, and that each control filter be kept together with the
exposed samples after sampling.
Consistent with accepted industrial hygiene principles and
practice, proposed paragraph (f) would require the operator to use
control filters when sampling. A control filter is an unexposed filter
of the same design as the filter used for sampling and is pre- and
post-weighed on the same day as the filter used for sampling. MSHA
first began using control filters in its enforcement program in May
1998 and continues this practice today. The Agency's intent is to
improve measurement accuracy by eliminating the effect of differences
in pre- and post-exposure laboratory conditions, or changes introduced
during storage and handling of the filter cassettes. Under the proposed
rule, MSHA would extend the program in effect since July 2007, which
allows operators to use control filters in the optional quartz sampling
program, to the entire sampling program. The control filter would be
used for all operator sampling to adjust the resulting weight gain
obtained on each exposed filter by subtracting any change in the weight
of the control filter from the change in weight of each exposed filter.
This is especially important since the filter cassettes to be used by
operators would be pre- weighed by the manufacturer and post-weighed by
MSHA. To ensure the precision and accuracy of the pre-weight of filters
currently used by MSHA, and proposed to be used by operators, MSHA
audits the daily production of filter cassettes. The program conforms
to ANSI/ASQ Z1.4-2008, ``Sampling Procedures and Tables for Inspection
by Attributes'', which defines the criteria currently used to monitor
the quality of the operator bimonthly sampling program.
Since the control filter would be used to adjust the resulting
weight gain obtained on each exposed filter cassette, the control
filter must have the same pre-weight date as the filter cassette to be
used for sampling on the same shift. The pre-weight date is noted on
the dust data card. To prevent exposure to the mine environment, the
plugs attached to the inlet and outlet side of the cassette must not be
removed. Also, it is important that the control filter be exposed to
the same time, temperature, and handling conditions as the ones that
are used for sampling, i.e., carry the control filter in a shirt or
coverall pocket while underground. While the control filter can be
carried by any miner assigned to the MMU being sampled, it would be
preferable if that miner performed the job of the DO. Finally, the
control filter cassette must be kept together with the exposed samples
after sampling and should be treated in the same manner as the exposed
filters prior to being transmitted to MSHA. Failure to follow these
proposed instructions would be cause for voiding the sampling results.
Proposed paragraph (g) is new and would require the operator to
make a record showing the length of each production shift for each MMU,
to retain the records for at least six months and make them available
for inspection by authorized representatives of the Secretary and the
miners' representative or submitted to the District Manager when
requested in writing. Under the proposed rule, mine operators would
need to know the length of the production shift to determine the
equivalent concentration of respirable dust in the mine atmosphere.
MSHA would use these records to verify that operators are accurately
recording the actual production shift lengths so that miners are not
being overexposed.
Proposed paragraph (h), redesignated from paragraph (c), would be
revised to require that, upon request from the District Manager, the
operator would submit the date and time any respirable dust sampling
would begin and submit that information to the District Manager at
least 48 hours prior to scheduled sampling. MSHA has included the
proposed 48-hour notification requirement in the proposal to provide
the Agency the opportunity to observe and monitor operator sampling to
ensure that both operating conditions and sampling requirements are
met.
Proposed paragraph (i) is new and would require, for purposes of
establishing a normal production shift as defined under proposed Sec.
70.2, the operator to record the amount of material produced (run-of-
mine, i.e., coal and rock) by each MMU during each shift used to
establish the average production for the most recent 30 production
shifts or for all the production shifts if fewer than 30 shifts of
production data are available. The operator would also be required to
retain production records for at least six months and make the records
available for inspection by authorized representatives of the Secretary
and the miners' representative.
The Dust Advisory Committee recommended that MSHA should require
the mine operator to maintain the appropriate records. MSHA currently
relies on information provided by the operator to determine at what
production level the mine ventilation plan should be evaluated. No
production records are required for each MMU. Although operators must
submit production data on a quarterly basis, the data are compiled for
the entire mine. In addition, quarterly reports provide information on
the amount of clean coal produced, which is much lower than the tonnage
of total material produced, and is not useful for establishing what
constitutes a ``normal production shift'' for each MMU for sampling
purposes. Under the proposed rule, MSHA would use the record under
proposed paragraph (i) to establish a normal production level to
evaluate.
Proposed paragraph (j) is new and would require mine operators
using CPDMs to provide training to all miners expected to wear one.
This would
[[Page 64425]]
include miners who perform the duties of the DO or ODO, occupations
determined by results of respirable dust samples to have the greatest
respirable dust concentration. Mine operators may also choose to use
the CPDM to address outby DA sampling.
Proposed paragraph (j) would require that a miner receive initial
training prior to being required to wear a CPDM, and receive retraining
every 12 months. Based on MSHA's experience, training would be most
effective when provided close to the time when the miner is expected to
wear the CPDM. Proposed paragraphs (j)(1) through (j)(5) would require
that the miner be instructed on: The basic features of the CPDM and its
capabilities; how to set-up the CPDM for compliance sampling; the
various types of numerical displays on the CPDM readout and how to
access that information; how to start and stop a short-term sample run
during compliance sampling; and the importance of continuously
monitoring dust concentrations and properly wearing the CPDM.
The CPDM is an important new technology that continuously measures
miners' exposure to respirable coal mine dust, in real time. The
proposed training requirements would assure that miners who must wear
the CPDM understand not only how the device works, but also the data
displayed on the CPDM, which continuously displays the concentration of
respirable dust in their work environment. The miner can use the
displayed information to inform a responsible mine official of
excessive dust levels and any concerns of being overexposed to
respirable dust. MSHA believes it is vital that miners be properly
trained on the operation of CPDMs to assure the integrity and
credibility of the sampling process. For the sampling program to be
effective, miners must understand the proper use of the CPDM, and its
operation and information displayed. Well informed miners are more
likely to make the most of the capabilities of the new CPDM technology.
Some commenters on the 2009 CPDM RFI supported CPDM training that
would be separate from part 48 training. Other commenters maintained
that CPDM training should occur before initial usage and be included
thereafter with part 48 refresher training. MSHA considered whether
training on the operation and use of the CPDM could be adequately
covered under part 48 training, considering the other subjects that
part 48 is required to address. MSHA believes that it is impracticable
to include the proposed comprehensive training on CPDMs within the
prescribed time limits under part 48. Under the proposal, the time for
CPDM training would be required to be in addition to that required
under part 48. However, operators may choose to provide CPDM training
separately from training under 40 CFR part 48, or may provide CPDM
training on days that part 48 training is held as long as additional
time is designated to assure that training on the CPDM required under
the proposed rule is sufficient.
Some commenters suggested that MSHA provide hands-on training to
small groups in 8-hour sessions to all underground miners. It is the
responsibility of mine operators to provide required training. MSHA
would encourage operators to develop training materials using available
instructional materials (e.g., videos) or operating manuals from the
manufacturers.
Proposed paragraph (k) is new and would require mine operators to
maintain a record of training at the mine site for two years following
completion of training. MSHA believes it is important to retain these
records to verify that the required training has been provided.
Proposed paragraph (k) would also permit a mine operator to maintain
the record at another location as long as the record could be
immediately accessed electronically from the mine site. Finally,
proposed paragraph (k) would require that upon request by an authorized
representative of the Secretary, Secretary of HHS, or miners'
representative, the mine operator must promptly provide access to any
such training record.
E. Section 70.202 Certified Person; Sampling and Sec. 70.203 Certified
Person; Maintenance and Calibration
Proposed Sec. Sec. 70.202 and 70.203 would revise requirements for
certified persons who perform dust sampling and who maintain and
calibrate sampling equipment. The proposal would add a new requirement
for decertification of certified persons who do not properly perform
their duties or who fail to pass the MSHA examination required to
maintain certification.
Proposed Sec. Sec. 70.202(b) and 70.203(b) would retain the
existing requirement that candidates for certification pass an MSHA
examination to demonstrate competency in respirable dust sampling
procedures or in maintenance and calibration procedures, as
appropriate. To ensure consistent administration of the certification
process, however, the proposal would add a new requirement that
candidates complete an MSHA course of instruction prior to
certification. The existing requirement that candidates pass an MSHA
examination would not be changed and the examination would be given at
the end of the course. MSHA believes the proposed new requirement that
candidates complete an MSHA course would permit instructors to
personally engage and converse with candidates to ensure that they have
a comprehensive understanding of sampling or maintenance and
calibration procedures. MSHA also believes that the proposed course
requirement would strengthen the overall certification process. The
proposed requirement is consistent with the recommendation of the 1992
Coal Mine Respirable Dust Task Group.
Several commenters on the CPDM RFI recommended that the
certification requirements for both sampling and maintenance and
calibration procedures be revised to account for technological
differences between CMDPSUs and CPDMs. Though not explicitly reflected
in the language of this proposed section, the mandatory course of
instruction and competency examination that a person would be required
to pass prior to becoming certified for sampling with or maintaining
and calibrating a CPDM would be tailored to apply to the device. MSHA
recognizes that, due to the technological differences between the
instruments, a person's competency to sample with or maintain and
calibrate a CPDM can only be demonstrated by standards that are
specific to the device. Thus, a person who is certified to sample with
or maintain and calibrate a CMDPSU would not be certified to sample
with or maintain and calibrate a CPDM until completing the CPDM course
of instruction and passing the examination demonstrating proficiency in
CPDM sampling or maintenance and calibration procedures.
Proposed Sec. 70.202(b) would clarify the Agency's existing
practice that only persons who are specifically certified in dust
sampling procedures be permitted to collect respirable dust samples and
handle approved sampling devices when being used in sampling. This
requirement would ensure that only trained persons, whose familiarity
with proper sampling procedures has been evaluated, are allowed to
collect dust samples. Dust samples must be collected effectively, and
in accordance with proper procedures, to assure quality and validity of
the sample. Accuracy and quality of dust sample results can be
significantly affected by the procedures used during the collection
process. MSHA believes that only persons certified in dust sampling
procedures should be allowed to perform this important responsibility.
[[Page 64426]]
Proposed Sec. 70.203(b) would clarify the Agency's existing
practice that only persons who are certified in maintenance and
calibration procedures be permitted to perform maintenance and
calibration work on approved sampling devices. The proposal is
consistent with a comment received on the CPDM RFI that only persons
specifically trained in maintenance procedures should be permitted to
perform maintenance on CPDMs. However, like the existing policy, the
proposal would allow persons who are only certified in sampling
procedures to perform maintenance of an approved device's sampling head
assembly. MSHA's experience is that maintenance of the head assembly
does not require a person to open, handle, disassemble, or reassemble
the sampling device's internal components. Additionally, maintenance of
a sampling device's head assembly would not affect the electrical
components or other intrinsic safety features that must be maintained
for the device to retain its approval. For these reasons, MSHA believes
that sampling device head assemblies can continue to be maintained by
persons who only hold a sampling certification without compromising the
device's ability to perform as approved under part 74.
Proposed Sec. Sec. 70.202(c) and 70.203(c) are new and would
require persons certified in dust sampling procedures or maintenance
and calibration procedures to pass the MSHA examination demonstrating
competency in sampling procedures or maintenance and calibration
procedures every three years. MSHA believes that it is absolutely
critical that persons who are designated to perform dust sampling and
maintenance and calibration of dust sampling equipment maintain the
necessary competency to do so. Therefore, the new proposed requirement
would ensure that once persons are certified, they take the necessary
action to maintain their knowledge, skills, and abilities. Existing
standards do not require certified persons to be re-examined at regular
intervals to maintain a valid certification. MSHA believes that
certifying persons for life can result in diminished aptitude or
proficiency in skills in an area where regular changes in technology,
procedures, and types of equipment and materials can reasonably be
expected to affect a person's competence to perform required tasks.
During Section 202 spot inspections conducted in 2009, MSHA personnel
routinely observed certified persons using improper procedures for dust
collection and handling of sampling devices, and for maintaining and
calibrating approved sampling devices. Further inquiry of these
certified persons revealed that a number of them were no longer
familiar with basic procedures. MSHA believes that it is fundamental
that the components of the dust sampling program be performed
effectively to assure the integrity of the program, and periodic re-
examination to maintain certification would advance this end.
The Dust Advisory Committee recommended unanimously that MSHA
require annual update training for persons certified for dust sampling.
The recommendation explained that annual refresher training would keep
persons up to date with sampling methods and regulations, and maintain
their expertise. MSHA agrees with the Dust Advisory Committee to the
extent that it recommended a requirement that certified persons should
be required to periodically demonstrate or reaffirm their competency in
sampling procedures. MSHA believes that the proposed requirement would
ensure that certified persons do not allow their knowledge, skills and
abilities to lapse.
Before deciding to propose the requirement that certified persons
be recertified through examination every three years, MSHA considered
alternatives, such as yearly and biennial recertification. However, the
Agency believes that recertification every three years would ensure
that certified persons remain proficient in proper procedures and
reduce the administrative burden that would be placed on operators and
certified persons by a more frequent recertification requirement.
Requiring persons to be reexamined at regular intervals as a condition
of maintaining a valid certification would ensure certified persons
have a minimum threshold of proficiency at all times, as familiarity
with proper procedures is integral to protecting the health of miners.
It is important to note that the proposal would not require certified
persons to take the MSHA course of instruction every three years as a
condition of re-certification. While MSHA believes that it is essential
for persons who are seeking initial certification to complete classroom
training prior to taking the competency examination and becoming
certified, MSHA does not believe that the same requirement is necessary
for persons seeking recertification. Persons seeking recertification
will have had the benefit of actual, hands-on experience in either
sampling or maintenance and calibration procedures, and MSHA believes
that their competency would be adequately evaluated by whether they
pass or fail the examination. For this reason, proposed Sec. Sec.
70.202(c) and 70.203(c) would not require persons seeking
recertification to retake the course of instruction prior to taking the
competency examination every three years. MSHA solicits comment on the
proposal that reexamination occur at three-year intervals, including
the rationale for any suggestions.
Proposed Sec. Sec. 70.202(d) and 70.203(d) would provide that MSHA
may revoke a person's certification for failing to pass the MSHA
examination or failing to properly carry out required sampling
procedures or maintenance and calibration procedures, as appropriate.
The proposal is consistent with the Dust Advisory Committee's unanimous
recommendation that MSHA consider a retraining and/or decertification
requirement if certified persons do not perform their duties properly.
MSHA believes that the Agency's ability to revoke certifications is
critical to preserving the integrity, reliability, and accuracy of the
dust program, as well as maintaining miners' confidence and support in
the program. MSHA's current certification procedures and procedures
regarding appeals of revocation are addressed in Program Policy Letter
(PPL) No. P09-V-08 (August 12, 2009).
Proposed Sec. Sec. 70.202 and 70.203 would delete existing
Sec. Sec. 70.202(c) and 70.203(c), which permit MSHA to temporarily
certify a person to collect respirable dust samples or to maintain and
calibrate approved sampling devices if the person has received specific
instruction from an authorized representative of the Secretary. The
existing temporary certification provisions would be deleted because
the process has been unused. It has been MSHA's experience that people
seek permanent certification instead of temporary certification. In
fact, since the provision permitting temporary certification was
implemented, nobody has been temporarily certified.
F. Section 70.204 Approved Sampling Devices; Maintenance and
Calibration
The proposed rule would revise existing Sec. 70.204 to conform to
the Agency's existing policy for the CMDPSU.
Proposed Sec. 70.204(a) would retain the existing requirement that
sampling devices be maintained as approved under 30 CFR part 74 and
calibrated in accordance with MSHA Informational Report IR 1240 (1996).
Proposed Sec. 70.204(a) would address the use of the CPDM and require
that operators who use this device maintain it in
[[Page 64427]]
accordance with the manufacturer's recommendations. The CPDM is a new
sampling device and this new proposed requirement would ensure that the
CPDM would perform as designed.
To assure proper operation of the sampling device and integrity of
the samples, proposed Sec. 70.204(a) would also clarify that pump unit
maintenance on approved samplers could only be done by persons
certified in maintenance and calibration. Under the proposal, persons
certified only in sampling could not perform maintenance or calibration
work on pump units of approved sampling devices. MSHA's experience is
that maintenance and calibration of the pump unit requires a person to
open, handle, disassemble, or reassemble the sampling device's internal
components. Additionally, maintenance of the pump unit could affect the
electrical components or other intrinsic safety features that must be
maintained for the device to retain its approval. MSHA believes that
only persons trained and certified in maintenance and calibration
procedures are competent and knowledgeable enough to properly perform
pump unit maintenance. This requirement would assure that the device's
ability to perform as approved under part 74 is not compromised.
Proposed Sec. 70.204(b) would retain the existing Sec. 70.204(b)
requirement that sampling devices be calibrated at a flowrate of 2.0
liters of air per minute, or at a different flowrate prescribed by the
Secretary or Secretary of HHS. The proposal revises the existing
requirement to allow calibration of sampling devices at a different
flowrate, if recommended by the manufacturer. Proposed Sec. 70.204(b)
also would retain the existing requirement that calibration be done
before the samplers are put into service, but would delete the existing
requirement that they must be calibrated at intervals 200 hours or less
after being placed into service. Instead, the proposed rule would
require sampling devices to be calibrated at time intervals prescribed
by the Secretary or Secretary of HHS or recommended by the
manufacturer. These changes would permit the introduction of new
sampling technologies that may have different calibration requirements.
It would also allow the Secretary to establish a different calibration
requirement or calibration schedule when necessary to address problems
associated with a particular sampling unit.
Existing Sec. 70.204(c), which addresses calibration marks on the
flowmeter, would be deleted because it no longer applies to approved
sampling devices. The CMDPSU has a constant-flow design with a digital
flow indicator and no longer uses a rotometer to indicate the flowrate.
Also, the CPDM has no external flowrate indicator; instead, it is
monitored by its own internal microprocessor.
Proposed Sec. 70.204(c) is derived from existing Sec. 70.204(d)
and existing MSHA policy and would address testing and examination
requirements when using a CMDPSU to conduct sampling. The proposed rule
would require that the CMDPSU be examined and tested by a person
certified in sampling or in maintenance and calibration within 3 hours
before the start of the shift on which it will be used to assure that
it is clean and in proper working condition. The existing standard
requires that this examination and testing occur ``immediately'' before
the sampling shift, and the proposal clarifies immediately to reflect
MSHA's policy on its interpretation of ``immediately.'' MSHA believes
that clarifying a 3-hour timeframe provides operators transparency
regarding their responsibilities for testing and examining sampling
devices, flexibility, and assurance that the sampling devices work
effectively during the next shift.
MSHA proposes to redesignate existing Sec. 70.204(d)(1) through
(d)(5) as Sec. 70.204(c)(1) through (c)(5). In addition, the order of
the paragraphs would be changed to reflect the order in which the
examination and testing requirements must be performed. MSHA also
proposes to add clarifying changes, which would incorporate existing
MSHA policy, to describe more completely the procedures to be used for
the required examinations and testing. The proposed changes include:
(c)(1) Examining the interior of the connector barrel, vortex finder,
cyclone body and grit pot; (c)(2) examining for scratch marks on the
inner surface of the cyclone where the air flow is directed by the
vortex finder into the cyclone body; (c)(3) examining the external hose
connecting the pump unit to the sampling head assembly; (c)(4)
examining the clamping and positioning of CMDPSU components to assure
they are airtight; and (c)(5) assuring that a fully assembled and
examined sampling head assembly is attached to the pump inlet with the
pump unit running when the battery voltage is tested. MSHA experience
indicates these proposed clarifications are necessary to assist
operators in correctly performing the required examinations and testing
to assure the accuracy of respirable dust samples and that devices
operate as approved.
Proposed Sec. 70.204(d) is new and would require that when CPDMS
are used, a person certified in sampling or in maintenance and
calibration follow the examination, testing, and set-up procedures
contained in the approved CPDM Performance Plan (proposed Sec.
70.206). This proposed requirement would ensure that CPDM procedures
have been approved by the District Manager and that the device operates
properly.
No changes are being proposed to Sec. 70.204(e).
G. Section 70.205 Approved Sampling Devices; Operation; Air Flowrate
Proposed Sec. 70.205, which addresses the operation and air
flowrate of approved sampling devices, would revise the existing
standard to include the use of CPDMs and to conform to Agency policy.
Proposed Sec. 70.205(a) would retain the existing requirement that
approved sampling devices be operated at the flowrate of 2.0 liters of
air per minute or at a different flowrate prescribed by the Secretary
or Secretary of HHS. It would revise the existing requirement to allow
the operator to use a different flowrate recommended by the
manufacturer. MSHA believes that this proposed revision would ensure
that approved sampling devices would perform properly and as designed.
For clarity and simplification, MSHA is proposing non-substantive
changes to existing Sec. 70.205(b) and (c), which would be
redesignated as paragraphs (b)(1) and (b)(2). Proposed Sec. 70.205(b)
would clarify that it would apply to operators when using a CMDPSU and
would retain the requirement that a person certified in sampling must
examine each approved sampling device at least twice during each
sampling shift to assure it is placed in the proper location, operating
properly, and at the proper flowrate.
Proposed paragraph (b)(1) would retain the existing requirement
that the first examination must be made during the second hour after
sampling devices are put into operation. It would also include the
provision in existing Sec. 70.205(d) to clarify that the examination
is not required if the sampling device is being operated in a breast or
chamber of an anthracite coal mine where the full box mining method is
used.
Proposed Sec. 70.205(b)(2) would retain the requirement in
existing Sec. 70.205(c) that the second examination be made during the
last hour that sampling devices are operated and, if a proper flowrate
was not maintained, the dust data card transmitted to MSHA must
[[Page 64428]]
include a notation to that effect. This proposal would include a new
requirement that the certified person must place the notation regarding
the improper flowrate on the back side of the dust data card. MSHA
experience indicates that operators do not always put the notation on
the card in a conspicuous location, which increases the likelihood that
this important information can be overlooked. The proposed revision is
consistent with existing Agency policy.
Proposed paragraph (b)(2) would also require that other events
occurring during the collection of respirable dust samples that may
affect the validity of the sample, such as dropping the sampling head
assembly on the mine floor or into water, must be noted on the back-
side of the dust data card. This proposed requirement would provide an
opportunity for the operator to inform MSHA of conditions that may
affect the sample's validity.
A commenter to the 2003 proposed rule stated that the requirement
that certified persons make second hour and last hour examinations of
sampling devices is obsolete and should be changed. MSHA believes that
the proposed examinations of each CMDPSU are crucial to assure that the
sampling device is operating properly, in the proper location, and at
the proper flowrate. Also, any corrective actions taken as a result of
the examinations would increase sampling accuracy.
A commenter to the 2009 CPDM RFI stated that the examinations
required under existing Sec. 70.205 would not be compatible with the
CPDM because (1) Checks do not necessarily need to be done within 3
hours prior to sampling since the CPDM can be programmed ahead of the
shift; (2) the flow rate exam during the second and last hour are
unnecessary because the flow rate is not displayed on the CPDM; and (3)
sensors record and log failures in the CPDM data files. The Agency
agrees and proposes a new requirement for the CPDM. Proposed Sec.
70.205(c) would require that the certified person examine the CPDM
during the shift as specified in the approved CPDM Performance Plan to
ensure that the CPDM is operating properly at the proper flowrate. The
CPDM Performance Plan requirements are in proposed Sec. 70.206,
discussed below.
H. Section 70.206 CPDM Performance Plan
Proposed Sec. 70.206 is new and would require operators who use
CPDMs to develop and submit for approval a CPDM Performance Plan (Plan)
prior to using the devices. The proposal specifies the information that
would be required in the Plan and would establish Plan approval
procedures.
Proposed Sec. 70.206(a) would require that operators have an
approved Plan to ensure that no miner working on an MMU is exposed to
respirable dust concentrations in excess of the applicable standard.
The proposal would require operators to develop a proposed Plan and
submit it to the District Manager for approval. Under the proposal,
operators could not implement a Plan until it has been approved by the
District Manager.
The proposed requirement for a Plan is based on MSHA's longstanding
regulatory history of requiring approved plans to address safety and
health conditions that are unique to a mine. Plans are an essential
component of an effective safety and health program and allow operators
the needed flexibility to address unique conditions at their mine. The
proposal would ensure that distinct mine procedures, mining cycles,
conditions, and experiences can be addressed on a mine-by-mine basis.
The CPDM Performance Plan would be a separate plan and not part of an
operator's ventilation or methane and dust control plan.
Proposed Sec. 70.206(a)(1), like the existing ventilation plan
requirements, would require operators to notify the representative of
miners at least 5 days prior to submitting a proposed CPDM Performance
Plan, or any proposed revision to the Plan, to the District Manager for
approval. At the time of this notification, the proposal would also
require operators to provide a copy of the Plan to the representative
of miners, if the miners' representative so requests. Consistent with
the Mine Act and MSHA's existing standards, MSHA believes that input
from miners on proposed Plan provisions is important, as they are
generally in the best position to determine the effect of the
provisions, if implemented. Additionally, the Agency believes that more
effective Plans can be developed when mine operators and
representatives of miners have meaningful involvement in the process.
The proposal would allow the miners' representative sufficient time to
become familiar with proposed Plan provisions and, when necessary, to
discuss and resolve any issues with the operator. The proposed
requirement that miners' representatives be provided with a copy of the
proposed Plan upon request is consistent with existing ventilation plan
requirements and would allow miners' representatives to meaningfully
participate in the Plan approval process.
Proposed Sec. 70.206(a)(2) would require the operator to make
available for inspection by the miners' representative a copy of the
proposed Plan and any proposed revisions which have been submitted for
approval to the District Manager. This proposed provision would ensure
that once the operator has submitted the proposed Plan or revision to
the District Manager for approval, the miners' representative would
also have the opportunity to inspect the documents. This proposal is
consistent with requirements for approval of the ventilation plan and
would facilitate miners' representatives' ongoing involvement in the
Plan approval process.
Proposed Sec. 70.206(a)(3) would require a copy of the proposed
Plan and any proposed revision that has been submitted for approval to
be posted on the mine bulletin board at the time of submittal. The
proposed Plan or revision would be required to remain posted on the
bulletin board until approved, withdrawn, or denied. The proposed
posting requirement is consistent with existing ventilation plan
requirements and would ensure that each miner is aware of the
provisions in the proposed Plan, or any revisions to the Plan. It would
provide these miners with the opportunity to review and consider the
proposed Plan or revision, and offer comments, recommendations or
concerns during the approval process. This proposed provision is
consistent with the statutory and existing regulatory framework that
provides for miners to have a meaningful role in matters affecting
their safety and health, such as the CPDM Performance Plan.
Proposed Sec. 70.206(a)(4) would address procedures for miners'
representatives to provide comments on the Plan to the District
Manager. It would permit the representative of miners, following
receipt of a proposed Plan or proposed revision, to submit timely,
written comments to the District Manager for consideration during the
review process. The proposal would also require the District Manager to
provide a copy of the representative of miners' comments to the
operator upon the operator's request. Consistent with existing
ventilation plan requirements, the proposal would require miners'
representatives to submit their comments in a ``timely'' manner in
order to be considered by the District Manager. Accordingly, while
miners' representatives would be permitted a reasonable period within
which to review the operator's submittal and forward their comments to
the District Manager, the proposal would not allow
[[Page 64429]]
them an indefinite or unreasonable period within which to do so. Like
the existing standards and consistent with the statutory framework, the
proposal would provide miners' representatives a reasonable amount of
time in which to review a proposed CPDM Plan or revision, and submit
their comments to the District Manager to facilitate development of an
appropriate Plan. Although the proposal does not define timely, under
the proposal, MSHA would balance the need for timely review, evaluation
and approval of a Plan, with all parties' need for meaningful
participation in the approval process.
The proposed requirement that District Managers provide operators,
upon request, with a copy of comments submitted by the miners'
representative would ensure that operators are aware of miners' and
their representatives' position with respect to a proposed Plan or
revision. MSHA believes that the proposed procedures for approval of a
Plan, including input by miners and their representatives and
information to the mine operator, would provide a reasonable approach
to information sharing between operators and representatives of miners.
Proposed Sec. 70.206(b) would include the information that would
be required in CPDM Performance Plans and the names or titles of the
responsible mine officials who would be designated by the operator to
perform the tasks required by this proposed provision. The proposal
would ensure that each Plan contains sufficient information necessary
for: the operator to have an effective Plan; MSHA to approve the Plan;
and for MSHA to verify the responsible mine officials designated by the
operators to properly implement the provisions of the Plan in this
section. The proposed requirement that operators identify the mine
official who would be responsible for each required task would permit
the mine official to be designated by title or name, so long as MSHA
and miners are able to readily discern who that official is. For
example, if the operator designates the ``safety supervisor'' as the
official responsible for electronically transmitting certified sampling
data files to MSHA at the end of each week, the proposed Plan would be
considered acceptable by MSHA if the operator employed only one
individual with the title of ``safety supervisor.'' Conversely, if the
operator designates the ``section foreman'' as the person responsible
for taking on-shift action to ensure that sampled occupations will
remain in compliance at the end of the shift, but has more than one
section foreman, the designation would not be acceptable. The operator
would have to include the titles or names of the designated mine
official responsible for performing the tasks required by each of the
eight proposed provisions, as well as any other tasks, if required by
the District Manager.
Proposed Sec. 70.206(b)(1) would require the Plan to include the
occupations designated by MSHA in each MMU that would be sampled using
a CPDM, along with a 9-digit identification number in the following
sequence: (i) The first four digits would identify the MMU being
sampled; (ii) the next three digits would identify the sampled
occupation; (iii) the eighth digit would identify the particular shift
being sampled (e.g., 1st, 2nd or 3rd); and (iv) the final digit would
identify the particular work crew that the wearer of the sampling
device is assigned to at mines employing multiple crews to work the
same shift on different days during the same calendar week (e.g., 1st
crew, 2nd crew, etc.). The proposed unique 9-digit identifying number
would ensure that sampling results are properly attributed to the
occupation and crew from which they were taken. MSHA has included this
requirement in the proposal because it is critical that the Agency be
able to correlate each sample result to the occupation and crew from
which it was obtained. This information would allow the Agency to
determine whether the weekly permissible accumulated exposure has been
met. The distinction between crews is essential where operators employ
several crews, each of which works the same shift but on different days
of the week. It is vital for MSHA, operators and miners to know
exposures of the sampled designated occupations so that timely
corrective action can be taken, as necessary.
Proposed Sec. 70.206(b)(2) would require the Plan to include pre-
operational examinations, testing and set-up procedures to verify the
operational readiness of the CPDM before each sampling shift. These
proposed tasks would have to be performed by a person certified in
sampling procedures. This proposed provision is consistent with a
comment received on the CPDM RFI that favored operators being held
responsible for ensuring the operational readiness of their CPDMs. The
proposal would require the operator to establish examination, testing,
and set-up procedures that would assure that the device is ready to be
used and will function properly during the shift. Pre-operational
exams, testing and set-up procedures are critical to the proper use of
the CPDM, as they would ensure that the approved device is working
correctly and that results from the device are reliable. These
procedures should be based upon the manufacturer's recommendations, as
appropriate. Set-up procedures should include programming the CPDM with
the shift length and the applicable dust standard for that MMU.
Additionally, set-up procedures should include placing a filter in the
device. The pre-operational examination should ensure that the CPDM is
ready to be used for the shift. The designated mine official should
also calculate the weekly permissible accumulated exposure. MSHA
solicits comment on this proposed provision and requests that a
detailed rationale accompany any comment or recommendation that is
submitted.
Proposed Sec. 70.206(b)(3) would require the Plan to include
procedures that address downloading end-of-shift sampling information;
and validation, certification and posting of reported results. The
responsible mine official designated to perform these tasks would be
required to be certified in sampling procedures. The proposal would
require that the Plan specify how the operator would ensure that all of
the recorded CPDM data would be downloaded at the end of each shift.
Because the operator would be required to post specific end-of-shift
information on the mine bulletin board, the downloaded data should
include: the location within the mine from which the sample was taken;
the respirable dust concentration; the occupation code, where
applicable; the shift length; and any information related to a voided
sample. With respect to the proposed requirements that the designated
mine official validate and certify the reported results, the Plan
should specify the means by which the official would determine that the
reported results appear reasonable and accurate in light of
considerations such as shift length, the location from which the sample
was taken, the sampled occupation, etc. The proposal would require that
the Plan include posting procedures and information describing how the
official would ensure the posting of the reported results. MSHA
solicits comment on this proposed Plan provision, and requests that a
detailed rationale accompany any comment or recommendation that is
submitted.
Proposed Sec. 70.206(b)(4) would require the Plan to include
procedures for weekly electronic transmittals of certified sampling
data files to MSHA including the responsible mine official designated
to perform the weekly electronic data transmittals. If operators choose
to use other services, such as a contractor, to transmit weekly data to
[[Page 64430]]
MSHA, the Plan would have to include that information to ensure the
integrity of data. Additionally, the Plan should specify how the
operator would ensure that weekly data would be electronically
transmitted to MSHA. MSHA solicits comment on this proposed Plan
provision, and requests that a detailed rationale accompany any comment
or recommendation that is submitted.
Proposed Sec. 70.206(b)(5) would require the routine daily and
other required scheduled maintenance procedures to be included in the
Plan. With regard to the routine daily maintenance procedures, the Plan
should include the steps the mine official would take to prepare the
units for daily usage, which may include cleaning the CPDM's inlet
tubing and cyclone in order to keep it free of dust and dirt (e.g., by
spraying with compressed air), changing the filters, and recharging the
batteries. Proper daily maintenance of the CPDM, such as cleaning the
inlet tubing and cyclone, ensures that the device is ready for the
sampling shift and that it provides consistent operation. Routine daily
maintenance procedures should be based on the manufacturer's
recommendations. With regard to ``other required scheduled
maintenance,'' the Plan would include scheduled monthly and annual
maintenance, as well as any other task that requires the CPDM case or
unit connections to be broken. These tasks, which require exposing the
internal components of or disassembling the unit, have the potential to
compromise the intrinsic safety features of the CPDM. MSHA solicits
comment on this proposed Plan provision, and requests that a detailed
rationale accompany any comment or recommendation that is submitted.
One commenter to MSHA's CPDM RFI recommended that MSHA assume
responsibility for all non-routine maintenance of operators' CPDM
units, while operators assume responsibility for routine maintenance of
the units. Proposed Sec. 70.206(b)(5), however, would require
operators to include all CPDM maintenance procedures, whether routine
or other than routine. The Agency believes that operators are in the
best position to maintain equipment, tools and instruments that they
use to comply with the Mine Act and related standards. Under the
existing dust standards, operators are responsible for ensuring that
their CMDPSUs are properly maintained, and MSHA believes continued
application of this practice is sound.
Proposed Sec. 70.206(b)(6) would require the Plan to specify
procedures or methods for verifying the calibration of each CPDM. The
Plan should specify how frequently the CPDM would be calibrated in
order to ensure the validity of each device's measurements and the
continued reliability of the information reported by the instrument. In
determining calibration frequency, the operator should follow the
manufacturer's recommendations; however, the District Manager may
require more frequent calibrations should circumstances warrant, such
as, prolonged exposure to extreme temperatures, repeated sampling
results that are unable to be validated, intense vibration or shock, or
improper handling by someone not certified in maintenance and
calibration procedures. MSHA solicits comment on this proposed
provision, and requests that a detailed rationale accompany any comment
or recommendation that is submitted.
One commenter to the CPDM RFI recommended that MSHA assume
responsibility for calibrating and maintaining each mine operator's
CPDM units. The proposal does not reflect this suggestion. As discussed
previously, MSHA believes that each operator is in the best position to
ensure that its tools, equipment, dust sampling devices, etc., are in
proper working order. Under MSHA's existing standards, operators are
responsible for ensuring regular calibration of their CMDPSUs, and
maintenance of the units as necessary. MSHA believes that operators
should have the same responsibility with respect to CPDM calibration
and maintenance.
Proposed Sec. 70.206(b)(7) would require the Plan to specify the
frequency with which the dust concentration is to be monitored by the
designated mine official during the shift. The Plan should specify
reasonable monitoring intervals based on considerations such as the
occupation being monitored, geologic conditions, the location in the
mine from which the sample is being taken, production levels, past
exposure levels, and similarity to current conditions, and mine
experience. MSHA solicits comment on this proposed provision, and
requests that a detailed rationale accompany any comment or
recommendation that is submitted.
Proposed Sec. 70.206(b)(8) would require the Plan to include the
types of actions permitted to be taken by the responsible mine official
during the shift to ensure that the environment of the occupation being
sampled remains in compliance at the end of the shift. Specific actions
to be taken would depend upon the particular circumstances in the mine.
For example, the Plan could contain actions such as checking the
approved dust plan parameters, determining whether the water sprays are
functioning properly and, if so, whether the water pressure is
appropriate; examining the number of scrubber sprays; examining the
amount of air delivered to the section; or inspecting the length of
bits. Permitted actions should ensure that environmental and
engineering controls that have already been installed are functioning
so as to provide optimum protection. MSHA solicits comment on this
proposed provision, and requests that a detailed rationale accompany
any comment or recommendation that is submitted.
Proposed Sec. 70.206(b)(9) would require the Plan to include any
other information required by the District Manager. Consistent with
MSHA's other existing standards that require plans, the proposal would
provide District Managers the authority to require added plan content
in order to accommodate special circumstances. For example, a District
Manager may require added Plan content to address repeated
overexposures to respirable dust, CPDM units that are not properly
cleaned under an operator's existing Plan procedures, or CPDMs that
have repeatedly reported errors. MSHA believes that plans must be
tailored to fit each mine's needs, and the flexibility provided in this
proposed provision would ensure that variations between mines are
accounted for in a mine's approved Plan. MSHA solicits comment on this
proposed provision, and requests that a detailed rationale accompany
any comment or recommendation that is submitted.
Proposed Sec. 70.206(c)(1) would require the approved CPDM
Performance Plan and any revisions to be provided upon request to the
representative of miners by the operator following notification of
approval. The proposal would ensure that miners' representatives are
aware and knowledgeable of any approved Plan or Plan revision. MSHA
believes that providing the representative of miners with a copy of the
approved Plan and revisions facilitates the information exchange that
the Agency believes furthers the health protections of miners. This
proposed provision is consistent with other MSHA plan requirements.
Proposed Sec. 70.206(c)(2) would require the approved Plan and any
revisions to be made available for inspection by the representative of
miners. The proposal would ensure that the representative of miners
could examine or look over the approved Plan or revisions so that
miners and their representatives fully understand the provisions in the
Plan and how the Plan affects them. The
[[Page 64431]]
proposed provision is consistent with other MSHA plan requirements.
Proposed Sec. 70.206(c)(3) would require the approved Plan and any
revisions to be posted on the mine bulletin board within 1 working day
following notification of approval, and to remain posted for the period
that the Plan is in effect. The proposal would help to assure that
miners and their representatives are aware of the provisions of the
approved Plan in a timely manner. The proposed provision is consistent
with other MSHA plan requirements.
Proposed Sec. 70.206(d) would allow the District Manager to
require an operator to revise an approved Plan if the District Manager
determines that the plan is inadequate to protect miners from exposures
to excessive concentrations of respirable coal mine dust. MSHA believes
that District Managers must have the authority to require Plan
revisions when it is determined that the minimum Plan provisions would
not reliably and consistently protect miners from excessive dust. All
mines, whether surface or underground, present a dynamic work
environment. MSHA's experience has demonstrated that such working
environments often require Plan revisions to account for conditions or
circumstances that might not have been present at the time the Plan was
approved. Similarly, even absent changing mine conditions,
implementation of an approved plan might reveal that variables assumed
during the Plan approval process, perform differently during actual
mining activities, resulting in inadequate protection of miners. For
this reason, MSHA believes it is critical that District Managers have
the ability to require Plan revisions. It is the Agency's intent that,
prior to requiring an operator to revise an approved Plan, the District
Manager would consider relevant inspection information, including any
dust citations that have been issued and corrective action taken to
lower respirable dust concentrations. However, under the proposal,
District Managers would not be required to wait until a miner has been
exposed to excessive dust prior to determining that a Plan is
inadequate and a revision warranted, provided there is a reasonable
basis to make such determination. For example, a District Manager may
require plan revisions to address CPDM units that are not properly
cleaned under an operator's existing Plan procedures, or CPDMs that
have repeatedly reported errors. Failure to include the required
revisions into a Plan would provide just cause for MSHA to revoke the
existing Plan. MSHA believes that such instances of refusal to
incorporate required revisions into a Plan will rarely, if ever, occur.
Consistent with MSHA's other standards that require approved mine
plans, operating without an approved Plan would be a violation of MSHA
standards. MSHA solicits comment on this proposed provision, and
requests that a detailed rationale accompany any comment or
recommendation that is submitted.
I. Section 70.207 Sampling of Mechanized Mining Units; Requirements
When Using a CMDPSU
Proposed Sec. 70.207 would revise the existing bimonthly sampling
requirements when using CMDPSUs on MMUs. The proposal would change the
title to distinguish this section from proposed Sec. 70.208 which
would apply to operators who use CPDMs.
Proposed Sec. 70.207(a) would replace the existing term
``respirable dust samples'' with the new term ``representative
samples.'' The term representative samples is discussed elsewhere in
this preamble in proposed Sec. 70.2 related to definitions. The
proposed change to include representative samples would offer greater
protection for miners since it would assure that samples taken by the
operator would reflect typical dust concentrations and conditions at
the mine during normal mining activity.
As in existing Sec. 70.207(a), the proposed rule would require
that DOs be sampled on ``consecutive normal production shifts or normal
production shifts each of which is worked on consecutive days.''
Proposed Sec. 70.2 would, however, revise the definition for ``normal
production shift,'' discussed elsewhere in the preamble. Under the
proposal, bimonthly sampling periods would remain the same as in the
existing standard.
Proposed Sec. 70.207(b), redesignated from existing Sec.
70.207(e), would substantively remain unchanged. Proposed (b)(1)
through (b)(10), which identify the DOs that will require sampling and
the location of sampling, would remain the same.
Proposed Sec. 70.207(c), (c)(1), and (c)(2) would apply when the
respirable dust standard has been changed due to the presence of quartz
under proposed Sec. 70.101.
Proposed Sec. 70.207(c) is new and would require that when the
applicable dust standard is changed in accordance with proposed Sec.
70.101 (Respirable dust standard when quartz is present), the new
applicable standard would be effective on the first production shift
following the operator's receipt of notification of the change from
MSHA. The proposal would protect miners by ensuring prompt
implementation of the reduced standard when high concentrations of
quartz are present. For example, during the day shift on Monday, the
operator receives notification from MSHA that the respirable dust
standard for the DO, the cutting machine operator, will be reduced in
accordance with proposed Sec. 70.101 due to a high quartz measurement.
Proposed paragraph (c) would require the reduced standard to become
effective on the next production shift, which could be the evening
shift on Monday or the midnight shift on Tuesday morning or the day
shift on Tuesday. The proposed provision is consistent with Agency
policy and would provide increased health protection for miners.
Proposed Sec. 70.207(c)(1) is derived from existing Sec.
70.207(b). Under the proposal, if all samples from the most recent
bimonthly sampling period do not exceed the new applicable standard,
the operator would begin sampling in the affected MMU on the first
production shift during the next bimonthly period following
notification from MSHA of the change in the applicable standard.
Proposed paragraph (c)(1) is consistent with existing Sec. 70.207(b)
and Agency policy.
Proposed Sec. 70.207(c)(2) is new and would require that if any
sample from the most recent bimonthly sampling period exceeds the new
applicable standard (reduced due to the presence of quartz), the
operator must make necessary adjustments to the dust control parameters
in the mine ventilation plan within three days, and then collect
samples from the affected MMU on consecutive normal production shifts
until five valid representative samples are collected. The samples
collected would then be treated as normal bimonthly samples. MSHA
believes that operators should take prompt actions to reduce the dust
levels when the new applicable standard is exceeded and that three days
is a reasonable amount of time to do so. The additional samples would
allow operators to make a timely determination whether the dust
controls are working effectively. Proposed Sec. 70.207(c)(2) would
assure that miners who need to be on a reduced standard are adequately
protected.
Proposed Sec. 70.207(d) would revise existing Sec. 70.207(d) by
deleting the existing provision requiring that any sample greater than
2.5 mg/m3 be used when normal production is not achieved. In
its place, the proposal would require that, if any sample
[[Page 64432]]
exceeds the applicable standard by 0.1 mg/m3, regardless of
production, the sample would be used to determine the average
concentration for that MMU. Voiding samples that indicate miners were
exposed to a concentration of respirable dust in excess of the
applicable standard does not provide miners the intended health
protection. For example, an MMU is on a reduced standard of 0.5 mg/
m3 due to the presence of quartz. A sample taken on the MMU
when a normal production shift was not achieved shows the respirable
dust concentration is 2.3 mg/m3. Under the existing
standard, that sample would not be used to determine the average
concentration for the MMU. However, MSHA believes that any sample that
exceeds the applicable standard while production is less than normal
should be used to determine the respirable dust concentration of the
MMU since operating at a higher production would likely increase
miners' respirable dust exposure.
Proposed Sec. 70.207(e) is new and would require that if an
operator uses a CMDPSU, no valid single-shift sample equivalent
concentration measurement shall meet or exceed the Excessive
Concentration Value (ECV) that corresponds to the applicable standard.
The ECVs are listed in Table 70-1. A full discussion of the use of
single, full-shift measurements is addressed elsewhere in this preamble
under proposed Sec. 72.800. The ECVs were calculated to ensure that,
if an ECV is met or exceeded, MSHA can determine noncompliance with the
applicable dust standard with at least 95-percent confidence.
The NIOSH Criteria Document recommended that MSHA should make no
upward adjustment in exposure limits to account for measurement
uncertainty for single, full-shift samples used to determine
noncompliance. The Dust Advisory Committee made the same
recommendation; however, it was not unanimous. One commenter on the
CPDM RFI stated that MSHA should issue a citation when any full-shift
sample exceeds the exposure limit by 0.1 mg/m3.
The commenter also stated that the Agency should not apply the 95%
confidence level adjustment since it gives benefit of the doubt to the
operator at the expense of miners' health. In developing the proposal,
MSHA considered an alternative that would have established
noncompliance whenever any single-shift measurement exceeded the
applicable dust standard by any amount. However, the Secretary must
show, to a certain level of confidence, that there has been an
overexposure before issuing a citation. The proposed rule is consistent
with generally accepted industrial hygiene principles for health
standards that include an error factor in determining noncompliance to
account for measurement uncertainty. The proposal, however, would
require that the operator take corrective action when the standard is
exceeded by any amount. In this situation, the proposed rule would
require that the operator: (1) Make respiratory equipment available to
affected miners; (2) take corrective action to lower the dust level so
that it does not reach the ECV level; and (3) record the corrective
actions. This proposed requirement is generally consistent with NIOSH's
recommendation and commenters' suggestion that the Agency make no
upward adjustment to the standard, in that it would require the
operator to take actions or receive a citation for not doing so.
Each proposed ECV was calculated to ensure that citations would be
issued only when a single sample measurement demonstrates, with at
least 95-percent confidence, that the applicable dust standard has been
exceeded. MSHA believes that the proposed ECVs provide a sufficient
degree of confidence in establishing noncompliance and basing
noncompliance determinations on the proposed ECVs would provide miners
increased health protection. A more detailed discussion on the
derivation of the ECV values is included in Appendix A of the preamble.
The proposed rule would redesignate existing Sec. 70.207(c) as
Sec. 70.207(f). Proposed Sec. 70.207(f) would continue to require
that upon issuance of a citation for a violation of the applicable
standard involving a DO on an MMU, bimonthly sampling, and requirements
when the respirable dust standard is changed due to quartz, would not
apply to that MMU until the violation is abated. The proposal would
replace (1) ``Sec. 70.100(a) (Respirable dust standards) or Sec.
70.101 (Respirable dust standard when quartz is present)'' with ``the
applicable standard'' to be consistent with other proposed part 70, 71,
and 90 provisions; and (2) ``that unit'' with ``that MMU'' for
clarification. The proposal would also make two nonsubstantive,
conforming changes to replace references to paragraphs that have been
redesignated. It would replace ``(b)'' with ``(c)(2),'' and ``Sec.
70.201(d)'' with ``paragraph (g).''
The proposed rule would revise and redesignate existing Sec.
70.201(d) as proposed Sec. 70.207(g). It would require the operator to
take actions, listed in paragraphs (g)(1) through (g)(3), during the
time for abatement fixed in a citation for violation of the applicable
standard. Proposed (g)(1) would require the operator to make approved
respirators available to affected miners in accordance with proposed
Sec. 72.700. Proposed (g)(2) would require the operator to submit to
the District Manager for approval proposed corrective actions to lower
the concentration of respirable dust to within the applicable standard.
Proposed (g)(3) would require that, upon approval by the District
Manager, the operator implement the proposed corrective actions and
then sample the affected occupation in the MMU on each normal
production shift until five valid representative samples are taken.
Proposed paragraph (g)(1) is consistent with existing Sec. 70.300.
Proposed paragraphs (g)(2) and (g)(3) are derived from existing Sec.
70.201 and are consistent with generally accepted occupational
industrial hygiene principles. MSHA believes that if a citation is
issued for a violation of the applicable standard, the operator must
take action to protect miners, including making respiratory protection
available, evaluating dust control measures, and implementing new
measures, as necessary, to reduce miners' risks of dust exposure.
Proposed paragraph (g) would assure that effective proposed corrective
actions are reviewed by the District Manager and implemented by the
operator in a timely manner.
Proposed Sec. 70.207(h) is new and would establish that a citation
for violation of the applicable standard will be terminated by MSHA
when: (1) The equivalent concentration of each of the five valid
operator abatement samples is at or below the applicable standard; (2)
the operator submits revised dust control parameters as part of the
mine ventilation plan applicable to the MMU; and (3) the District
Manager approves the revised dust control parameters. The proposal also
requires that the revised dust control parameters must reflect the
control measures used to abate the violation. MSHA believes that when
there is a violation of the applicable standard, the proposed provision
would assure that the revised dust control parameters are appropriate
and demonstrate that they effectively reduce concentrations of
respirable dust on the MMU.
Proposed Sec. 70.207(i) is new and would require that when the
equivalent concentration of one or more valid samples collected by the
operator under this section exceeds the applicable standard but is less
than the ECV in Table 70-1, the operator must: (1) Make approved
respirators available to affected miners in accordance with proposed
Sec. 72.700; (2) take corrective
[[Page 64433]]
action to lower the respirable dust concentration to or below the
applicable standard; and (3) record the corrective actions taken in the
same manner as the records for hazardous conditions required by
existing Sec. 75.363. MSHA believes these proposed requirements are
necessary to prevent miners' overexposure to respirable dust and would
provide improved protection for miners. Proposed paragraph (i)(1) is
consistent with existing Sec. 70.300. MSHA believes that operators
must take action to lower respirable dust concentrations to or below
the applicable standard as would be required by proposed paragraph
(i)(2) to assure that concentrations do not reach ECV levels, or a
state of noncompliance. MSHA believes that the record required to be
made under proposed (i)(3) would allow the Agency and mine operators to
review the corrective actions taken and assist in determining whether
the dust control parameters in the approved ventilation plan are
adequate.
J. Section 70.208 Sampling of Mechanized Mining Units; Requirements
When Using a CPDM
Proposed Sec. 70.208 is new and would provide requirements on
operator sampling of mechanized mining units when using a CPDM. It
addresses: Occupations that must be sampled; frequency of sampling;
actions to be taken when any end-of-shift concentration exceeds the
applicable standard; actions to be taken when overexposures occur; and
interim use of supplementary controls when all feasible engineering or
environmental controls have been used.
Proposed Sec. 70.208(a)(1) would require mine operators who use
CPDMs to sample the DO in each MMU during each production shift, seven
days per week (Sunday through Saturday), 52 weeks per year. The
proposal would maintain MSHA's longstanding practice to require
operators to sample the DO on each MMU because the DO is the occupation
having the highest risk of dust exposure based on past MSHA sampling.
The Agency considered, but rejected, retaining the operator's existing
bimonthly sampling program, because MSHA believes that sampling DOs on
every production shift, 7 days per week, 52 weeks per year is the most
effective method of sampling to reduce miners' exposure to respirable
coal mine dust. Both operators and miners would continually be aware of
the dust conditions in the working environment and the effectiveness of
dust controls. The proposal is consistent with comments on MSHA's RFI
on CPDMs. Commenters supported CPDM sampling on DOs during all
scheduled production shifts during the week. One commenter stated that
the real-time sampling aspects of the CPDM provide the opportunity for
more frequent sampling than is currently done.
Proposed paragraph (a)(2) would require mine operators using CPDMs
to sample ODOs specified in paragraphs (b)(1) through (b)(10) of this
section in each MMU during each production shift for 14 consecutive
days during each quarterly period. The proposal would establish the
quarterly periods as: (1) January 1-March 31; (2) April 1-June 30; (3)
July 1-September 30; and (4) October 1-December 31. ODOs to be sampled
would be identified by the MSHA District Manager (DM), specified in the
mine ventilation plan, and addressed in the CPDM Performance Plan. ODOs
identified by the DM would be based on MSHA's historical sampling data
on the MMU; sampling of ODOs, such as shuttle car operators on MMUs
using blowing face ventilation, would be required because MSHA's data
show that sampling only the DOs does not always adequately protect
other miners in the MMU. In addition, sampling on each production shift
for 14 consecutive days during the specified quarter would provide
samples that are representative of typical normal mining activities
during the production shifts. MSHA believes that under normal mining
conditions, the MMU should be able to complete multiple mining cycles
in 14 days. Sampling during the 14-day period would provide results of
respirable dust concentrations in the ODO's work environment and allow
MSHA to evaluate the effectiveness of the dust controls being used.
The Agency solicits comment on which occupations should be sampled
and the frequency that sampling should occur. Please be specific in
your comments and include a detailed rationale.
Some commenters on the CPDM RFI stated that MSHA should be
responsible for the purchase of all CPDMs and all sampling for purposes
of determining compliance with respirable dust standards. The Dust
Advisory Committee recommended that MSHA should take full
responsibility for compliance sampling at the number and frequency
levels required of both operators and MSHA to ensure reliability of the
program. The Committee also stated that MSHA should explore possible
means to secure adequate funding for this effort without adversely
impacting the remainder of the Agency's resources and responsibilities.
To achieve this end, the Committee recommended that resource
constraints should be overcome by mine operator funding for the
incremental compliance sampling, including implementation of an
operator fee program. The proposed rule does not include these
suggestions and recommendations. Under existing standards and
consistent with the Mine Act, mine operators are responsible for
providing safe and healthful mines. Toward that end, they are
responsible for ensuring that hazards from respirable coal mine dust
are minimized or eliminated from the miners' work environment.
Operators are responsible for compliance sampling, including purchase
of approved sampling devices. MSHA believes that this is a reasonable
statutory requirement and sound regulatory principle that must be
maintained. Consistent with the existing operator sampling program,
MSHA believes that operators have primary responsibility and are in the
best position to provide miners with safe and healthy working
conditions. Part of that responsibility includes sampling the working
environment to assure that miners do not suffer material impairment of
health or functional capacity from exposure to respirable dust.
Proposed Sec. 70.208(b) would require that the CPDM must be worn
by the miner assigned to perform the duties of the DO or ODO specified
in paragraphs (b)(1) through (b)(10) for each type of MMU or specified
by the DM for each type of MMU. The proposal would ensure accurate
sampling by requiring the CPDM to remain on the miner performing the
duties of the DO or ODO. If that miner's duties change during the
shift, the CPDM must remain with the miner performing the duties of the
DO or the ODO.
Proposed paragraphs (b)(1) through (b)(10) would identify the DOs
that would be sampled under paragraph (a)(1) and the ODOs specified by
the DM that would be sampled under (a)(2) for each specified MMU.
Paragraph (b)(1) would provide that on a conventional section using
a cutting machine, the DO on the MMU would be the cutting machine
operator.
Paragraph (b)(2) would provide that on a conventional section
shooting off the solid, the DO on the MMU would be the loading machine
operator.
Paragraph (b)(3) would provide that on a continuous mining section
other than auger-type, the DO on the MMU would be the continuous mining
machine operator or mobile bridge operator when using continuous
haulage. The ODOs for this type of MMU would be the roof bolter
operator who works nearest the working face on
[[Page 64434]]
the return air side of the continuous mining machine and the shuttle
car operators on MMUs using blowing face ventilation. The DO would be
sampled under paragraph (a)(1) and the ODOs would be sampled under
paragraph (a)(2).
Paragraph (b)(4) would provide that on a continuous mining section
using auger-type machines, the DO on the MMU would be the jacksetter
working nearest the working face on the return air side of the
continuous mining machine.
Paragraph (b)(5) would provide that on a scoop section using a
cutting machine, the DO on the MMU would be the cutting machine
operator.
Paragraph (b)(6) would provide that on a scoop section, shooting
off the solid, the DO on the MMU would be the coal drill operator.
Paragraph (b)(7) would provide that on a longwall section, the DO
on the MMU would be the longwall operator working on the tailgate side
of the longwall mining machine sampled under paragraph (a)(1). The ODOs
of the jack setters working nearest to the return side of the longwall
working face, and the mechanics working on the longwall working face
would be sampled under paragraph (a)(2).
Paragraph (b)(8) would provide that on a loading section with a
cutting machine, the DO on the MMU would be the cutting machine
operator.
Paragraph (b)(9) would provide that on a hand loading section
shooting off the solid, the DO on the MMU would be the hand loader
exposed to the greatest dust concentration.
Paragraph (b)(10) would provide that on an anthracite mine section,
the DO on the MMU would be the hand loader exposed to the greatest dust
concentration.
The Agency requests comments on the proposed locations for the use
of CPDMs. Please be specific in your comments and include rationale for
suggested alternatives.
Proposed Sec. 70.208(c) is new and would require that when the
respirable dust standard is changed in accordance with Sec. 70.101
(Respirable dust standard when quartz is present), the new applicable
standard would be effective on the first production shift following the
operator's receipt of notification of such change from MSHA. The
proposed provision is consistent with Agency policy and identical to
proposed Sec. 70.207(c). The rationale for proposed Sec. 70.208(c) is
the same as that for proposed Sec. 70.207(c), discussed elsewhere in
the preamble.
Proposed Sec. 70.208(d) would require that no valid end-of-shift
equivalent concentration meet or exceed the ECV that corresponds to the
applicable standard. The ECVs are listed in Table 70-2. As discussed
elsewhere in the preamble related to proposed Sec. 70.207(e), each ECV
is calculated to ensure that citations are issued only when a single
sample measurement demonstrates, with at least 95-percent confidence,
that the applicable dust standard has been exceeded. The rationale for
proposed Sec. 70.208(d) is the same as that for proposed Sec.
70.207(e), which is discussed elsewhere in the preamble.
Proposed Sec. 70.208(e) would require that no weekly accumulated
exposure (WAE) shall exceed the weekly permissible accumulated exposure
(WPAE). The proposed terms ``weekly accumulated exposure'' and ``weekly
permissible accumulated exposure'' are new and discussed elsewhere in
the preamble under the Sec. 70.2 definitions. For example, suppose a
CPDM reported an equivalent concentration of 1.46 mg/m\3\ for a miner
who worked nine hours on Monday in the DO. Under the proposed
definition of WAE, this quantity would be multiplied by 8 hours,
yielding an accumulated exposure on Monday of 1.46 mg/m\3\ x 8 hours or
11.68 mg-hr/m\3\. If the particular miner worked the rest of the week,
including Saturday, the exposure accumulated during each of the other
five shifts would be determined in the same manner. If the daily
exposures accumulated by the DO for the week were recorded as follows:
Monday--11.68 mg-hr/m\3\; Tuesday--12.51 mg-hr/m\3\; Wednesday--10.75
mg-hr/m\3\; Thursday--9.68 mg-hr/m\3\; Friday--12.00 mg-hr/m\3\;
Saturday--10.75 mg-hr/m\3\, adding together the daily accumulated
exposures yields a WAE of 67.37 mg-hr/m\3\.
To continue, if the applicable standard in the MMU is 1.5 mg/m\3\,
this quantity would be multiplied by 40 hours, yielding a WPAE of 60
mg-hr/m\3\ for the DO. Since the WAE for the DO is 67.37 mg-hr/m\3\, it
would exceed the WPAE of 60 mg-hr/m\3\.
Proposed paragraph (e) would assure that miner's respirable dust
exposure for the work week would be limited to a calculated weekly
permissible accumulated exposure for an equivalent 40-hour work week.
This proposed paragraph is consistent with the NIOSH Criteria Document
which recommended that respirable coal mine dust be limited to 1 mg/
m\3\ as a TWA concentration for up to 10 hr/day during a 40-hour work
week.
Proposed Sec. 70.208(f)(1) through (f)(5) would require the
operator to take actions when any valid end-of-shift equivalent
concentration meets or exceeds the ECV that corresponds to the
applicable standard in Table 70-2, or a weekly accumulated exposure
(WAE) exceeds the weekly permissible accumulated exposure (WPAE). The
action would include making respirators available to affected miners,
implementing corrective actions, submitting corrective measures to the
DM for approval, recording the reported excessive dust conditions, and
reviewing the adequacy of the approved CPDM Performance Plan. The
proposal would ensure that operators take prompt actions to protect
miners, evaluate their dust control measures, and implement new
measures, as necessary, to reduce miners' excessive respirable dust
exposure.
Paragraph (f)(1) would require the operator to make approved
respirators available to the affected miners in accordance with
proposed Sec. 72.700. The proposal is consistent with existing Sec.
70.300 which requires the operator to make respiratory equipment
available to all persons exposed to excessive concentrations of
respirable dust.
Paragraph (f)(2) would require the operator to implement corrective
actions to assure compliance with the applicable standard on the next
and subsequent production shifts. Corrective actions would include, for
example, engineering or environmental controls that control the level
of respirable dust by (1) reducing dust generation at the source with
the dust controls on the machine; (2) suppressing dust with water
sprays, wetting agents, foams or water infusion; (3) using ventilation
to dilute dust; (4) capturing dust with machine-mounted dust
collectors; or (5) diverting dust being generated by the mining process
with shearer clearer or passive barriers. MSHA believes that the
proposal would protect miners' health because the operator would be
required to review the dust control parameters, determine what factors
may have contributed to the overexposures, and immediately take
corrective actions starting on the next production shift. Commenters on
the RFI on CPDMs supported taking corrective actions to correct
overexposures when operators are using a CPDM.
Paragraph (f)(3) would require the operator to submit the
corrective actions implemented to lower the concentration of respirable
dust to within the applicable standard as a proposed change to the
approved ventilation plan to the District Manager for approval within 3
days of determining that the applicable standard was exceeded. The
District Manager would address the operator's submission through the
[[Page 64435]]
approval process associated with the mine ventilation plan under
existing Sec. 75.370. The District Manager's review would assure that
control measures in the plan would maintain respirable dust
concentrations at or below the applicable standard so that
concentrations would not approach the citable ECV levels. It would also
assure improved protection for miners.
Paragraph (f)(4) would require the operator to review the adequacy
of the approved CPDM Performance Plan. If any CPDM Performance Plan
revisions are needed, it would require the operator to submit proposed
revisions to the District Manager for approval within 7 calendar days
following posting of the applicable end-of-shift equivalent
concentration or the weekly accumulated exposure on the mine bulletin
board. MSHA believes that if an end-of-shift respirable dust
concentration meets or exceeds an applicable ECV in Table 70-2, or a
weekly accumulated exposure exceeds the weekly permissible accumulated
exposure, the operator should be required to review the CPDM
Performance Plan to determine whether revisions are necessary to
prevent miners from being overexposed in the future. In addition, MSHA
believes a 7-calendar day period is a reasonable amount of time for the
operator to review and submit CPDM plan revisions for approval.
Paragraph (f)(5) would require the operator to record the reported
excessive dust condition as part of and in the same manner as the
records for hazardous conditions required by existing Sec. 75.363. The
proposal would require the record to include the following information:
(i) Date of sampling; (ii) length of the sampled shift; (iii) location
within the mine and the occupation where the sample was collected; (iv)
the end-of-shift equivalent concentration, or weekly accumulated
exposure and weekly permissible accumulated exposure; and (v)
corrective action taken to reduce the concentration of respirable coal
mine dust to or below the applicable standard. The record would provide
necessary and useful information for operators, miners, and MSHA to be
able to evaluate dust exposures, controls, and conditions in order to
determine when and where corrective actions are necessary, and whether
such conditions are recurring. In addition, this information would be
critical to MSHA when requiring necessary changes to the operator's
approved ventilation plan to ensure that suitable controls are in place
to protect miners on each shift. Some commenters on the RFI on CPDMs
supported recording of sampling results and corrective actions taken.
Proposed Sec. 70.208(g) would require the operator to take
actions, listed in paragraphs (g)(1) through (g)(4), before production
begins on the next shift when a valid end-of-shift equivalent
concentration exceeds the applicable standard but is less than the ECV
that corresponds to the applicable standard in Table 70-2. Proposed
Sec. 70.208(g)(1) and (g)(2) are identical to proposed Sec.
70.208(f)(1) and (f)(2) and would require the operator to make
respirators available to affected miners and implement corrective
actions.
Proposed Sec. 70.208(g)(3), like proposed Sec. 70.208(f)(5),
would require the operator to record the reported excessive dust
condition as part of and in the same manner as the records for
hazardous conditions required by existing Sec. 75.363. Proposed
paragraphs (g)(3)(i) through (g)(3)(iii), and (g)(3)(v), which specify
information to include in the record, are identical to proposed
paragraphs (f)(5)(i) through (f)(5)(iii), and (f)(5)(v). Proposed
paragraph (g)(3)(iv) requires the record to include end-of-shift
concentrations because paragraph (g) addresses only end-of-shift
concentration measurements.
Proposed paragraph (g)(4), like proposed paragraph (f)(4), would
require the operator to review the adequacy of the approved CPDM
Performance Plan. It would also require the operator to submit to the
District Manager for approval any plan revisions to their CPDM
Performance Plan within 7 calendar days following posting of the end-
of-shift equivalent concentration on the mine bulletin board. The
rationale for this proposed provision is the same as for proposed
paragraph (f)(4).
Proposed paragraph (h) would provide that for the 24-month period
following the effective date of the final rule, if an operator is
unable to maintain compliance with the applicable standard for an MMU
and the operator determines that all feasible engineering or
environmental controls are being used on the MMU, the operator may
request through the District Manager that the Administrator for Coal
Mine Safety and Health approve, for a period not to exceed 6 months,
the use of supplementary controls, including worker rotation, in
conjunction with monitoring miners' exposures with CPDMs to reduce
affected miners' dust exposure. When making such request, the operator
would have to provide a report that: (1) Evaluates the specific
situation in the MMU; (2) outlines all controls that will be used
during this time period to prevent miners from being exposed to
concentrations exceeding the applicable standard; (3) addresses the
actions that will be taken to reduce miners' exposures through the use
of engineering and environmental controls; and (4) establishes the time
line for the implementation of the engineering and environmental
controls. MSHA believes that the report submitted by the operator
should be made by a knowledgeable mine employee such as an industrial
hygienist, safety and health engineer, or other person with experience
in respirable dust control. The District Manager would address the
request through the approval process associated with the mine
ventilation plan.
Engineering controls, also known as environmental controls, are the
most protective means of controlling dust generation at the source. To
control respirable dust, MSHA requires engineering or environmental
controls as the primary means of controlling respirable dust. This is
consistent with the Mine Act and generally accepted industrial hygiene
principles. Used in the mining environment, engineering controls work
to reduce dust generation at the source, or suppress, dilute, divert,
or capture the generated dust. Unlike administrative controls, well-
designed engineering controls or environmental controls provide
consistent and reliable protection to all workers because the controls
are not dependent on individual human performance, supervision, or
intervention to function as intended. However, the proposal would allow
limited short-term use of measures to supplement engineering or
environmental controls to accommodate operators that may have
difficulty meeting the applicable standards by the compliance dates
that would be established by the final rule.
Any approved use of supplementary controls would only be in effect
for a period not to exceed 6 months. MSHA believes that a 6-month
period is a reasonable time within which supplementary controls may be
used. If approved, supplementary controls would be permitted until
other feasible engineering or environmental controls are implemented or
MSHA determines that the supplementary controls are no longer
necessary. In addition, if an operator cannot meet the applicable
standard after the 6-month period, the operator may make another
request to use supplementary controls; however, the use of
supplementary controls would not be permitted beyond the 24 months
following the effective date of the final rule. MSHA believes that the
24-month period allows operators sufficient time to implement
engineering or environmental controls
[[Page 64436]]
to control respirable dust in the active workings of the mine
atmosphere. MSHA specifically requests comments on the Agency's
proposed approach to the use of supplementary controls, including any
suggested alternatives, with supporting rationale.
K. Section 70.209 Sampling of Designated Areas
Proposed Sec. 70.209 is derived from existing Sec. 70.208 and
would address sampling of designated areas (DAs). It would revise
existing Sec. 70.208 when operators use a CMDPSU and add new
requirements when operators use a CPDM.
Proposed Sec. 70.209 would apply initially to all DAs, but
according to Sec. 70.201(b), after [date 18 months after the effective
date of the final rule] or upon implementation of the use of CPDMs, DAs
associated with an MMU would be redesignated as ODOs and would no
longer be subject to the proposed sampling provisions of this section.
However, proposed Sec. 70.209 would continue to apply to outby areas
identified as DAs by the operator under proposed Sec. 75.371(t).
Proposed Sec. 70.209(a) would revise existing Sec. 70.208(a) and
require operators, who are using CMDPSUs or CPDMs, to sample each DA
for five consecutive shifts every calendar quarter. The quarterly
periods would be: (1) January 1-March 31; (2) April 1-June 30; (3) July
1-September 30; and (4) October 1-December 31.
Under the existing standard, operators are required to take one
sample during the sampling period, with the potential under existing
Sec. 70.208(c) that five additional samples must be collected to make
a compliance determination. Proposed Sec. 70.209 would revise the
existing standard to require the operator to take five DA samples on
consecutive production shifts during the sampling period. One commenter
on the CPDM RFI recommended less frequent CPDM sampling in outby areas,
stating that historic sampling results indicate that exposure in outby
areas is far lower than where coal is extracted. MSHA believes that,
under the proposal, requiring operators to take five samples in a short
period of time, such as consecutive production shifts, provides a
better representation of the mining cycle and whether dust controls are
effective in protecting miners who work in these areas. Since the five
DA samples would provide a more accurate portrayal of mining activities
and dust conditions, MSHA also believes it is reasonable to reduce the
sampling period frequency from bimonthly to a quarterly basis.
Proposed Sec. 70.209(b), (b)(1), and (b)(2) would apply when the
respirable dust standard has been changed under proposed Sec. 70.101
due to the presence of quartz.
Proposed Sec. 70.209(b) is new and would require that when the
applicable dust standard is changed in accordance with proposed Sec.
70.101 (Respirable dust standard when quartz is present), the new
applicable standard would be effective on the first production shift
following the operator's receipt of notification of the change from
MSHA. The proposal would provide increased health protection for miners
by ensuring prompt implementation of the new applicable standard when
quartz is present. The proposed provision is consistent with Agency
policy and proposed Sec. 70.207(c), which is discussed elsewhere in
the preamble. The rationale for proposed Sec. 70.209(b) is the same as
that for proposed Sec. 70.207(c), discussed elsewhere in the preamble.
Proposed Sec. 70.209(b)(1) is derived from existing Sec.
70.208(b). Under the proposal, if all samples from a DA taken during
the most recent quarterly sampling period do not exceed the new
applicable standard, the operator would begin sampling of the DA on the
first production shift during the next quarterly period following
notification from MSHA of the change in the applicable standard.
Proposed Sec. 70.209(b)(1) is consistent with Agency policy, existing
Sec. 70.208(b), and proposed Sec. 70.207(c)(1), which is discussed
elsewhere in the preamble.
Proposed Sec. 70.209(b)(2) is new and would require that if any
sample from the most recent quarterly sampling period exceeds the new
applicable standard (reduced due to the presence of quartz), the
operator must make necessary adjustments to the dust control parameters
within three days, and then collect samples from the affected DA on
consecutive shifts until five valid representative samples are
collected. The samples would be treated as normal quarterly samples.
Proposed Sec. 70.209(b)(2) is consistent with proposed Sec.
70.207(c)(2). The rationale for proposed Sec. 70.209(b)(2) is the same
as that for proposed Sec. 70.207(c)(2), which is discussed elsewhere
in the preamble.
Proposed Sec. 70.209(c) is new and would require that no valid
single-shift equivalent concentration shall meet or exceed the ECV that
corresponds to the applicable standard. Tables 70-1 and 70-2 list ECVs
for operators using CMDPSUs or CPDMs, respectively. Proposed Sec.
70.209(c) is consistent with proposed Sec. 70.207(e), and other
proposed provisions in parts 71 and 90. The rationale for proposed
Sec. 70.209(c) is the same as that for proposed Sec. 70.207(e), which
is discussed elsewhere in the preamble.
Proposed Sec. 70.209(d) would revise existing Sec. 70.208(d) and
would require that upon issuance of a citation for a violation of the
applicable standard, paragraph (a) (quarterly sampling) and (b)(2)
(sampling when a respirable dust standard is changed due to quartz)
would not apply to the DA until the violation is abated in accordance
with proposed paragraph (e). Except for minor and conforming changes,
the proposal would be essentially the same as the existing standard.
Proposed Sec. 70.209(e) is new and would require the operator to
take actions, listed in paragraphs (e)(1) through (e)(3), during the
time for abatement fixed in a citation for violation of the applicable
standard. Proposed (e)(1) would require the operator to make approved
respirators available to affected miners in accordance with proposed
Sec. 72.700. Proposed (e)(2) would require the operator to submit to
the District Manager for approval proposed corrective actions to lower
the concentration of respirable dust to within the applicable standard.
Proposed (e)(3) would require that, upon approval by the District
Manager, the operator implement the proposed corrective actions and
then sample the affected DA on each production shift until five valid
representative samples are taken. Proposed Sec. 70.209(e) is
consistent with proposed Sec. 70.207(g). The rationale for proposed
Sec. 70.209(e) is identical to that for proposed Sec. 70.207(g),
which is discussed elsewhere in the preamble.
Proposed Sec. 70.209(f) is new and would establish that a citation
for violation of the applicable standard will be terminated by MSHA
when: (1) The equivalent concentration of each of the five valid
operator abatement samples is at or below the applicable standard; (2)
the operator submits revised dust control parameters as part of the
mine ventilation plan applicable to the DA; and (3) the District
Manager approves the revised dust control parameters. The proposal also
requires that the revised dust control parameters must reflect the
control measures used to abate the violation. Proposed Sec. 70.209(f)
and its rationale are identical to proposed Sec. 70.207(h), which is
discussed elsewhere in the preamble.
Proposed Sec. 70.209(g) would apply to operators who use CPDMs to
sample DAs. It would require that operators take actions listed in
paragraphs (g)(1)
[[Page 64437]]
through (g)(4), if a valid end-of-shift equivalent concentration
exceeds the applicable standard but is less than the ECV that
corresponds to the applicable standard in Table 70-2. Proposed Sec.
70.209(g)(1) and (g)(2) would require the operator to make respirators
available to affected miners and implement corrective actions. Proposed
Sec. 70.209(g)(3) would require the operator to record the reported
excessive dust condition as part of and in the same manner as the
records for hazardous conditions required by existing Sec. 75.363.
Proposed Sec. 70.209(g)(3)(i)-(g)(3)(v) specify the information to
include in the record. Proposed Sec. 70.209(g)(4) would require the
operator to review the adequacy of the approved CPDM Performance Plan.
It would also require the operator to submit to the District Manager
for approval any plan revisions to the CPDM Performance Plan within 7
calendar days after posting of the end-of-shift equivalent
concentration on the mine bulletin board. Proposed Sec. 70.209(g) and
its rationale are identical to proposed Sec. 70.208(g), which is
discussed elsewhere in the preamble.
The proposed rule would make other minor changes to existing Sec.
70.208. Existing Sec. 70.208(e) would be deleted because Sec. 75.371
addresses where DA samples are collected. The proposed rule would
redesignate without change existing Sec. 70.208(f), which addresses
revocation of operators' mine ventilation plans, as proposed Sec.
70.209(h).
L. Section 70.210 Respirable Dust Samples; Transmission by Operator
Proposed Sec. 70.210, redesignated from existing Sec. 70.209,
would revise requirements for the operator to transmit respirable dust
sampling information collected by either a CMDPSU or CPDM. It would
revise paragraphs (a) and (c) and add a new paragraph (f); paragraphs
(b), (d) and (e) would remain the same.
Proposed paragraph (a) would make a non-substantive change to
clarify that it only applies to operators' transmission of samples
collected with a CMDPSU.
Proposed paragraph (c) would retain the existing requirement that
only persons certified in sampling complete the dust data card provided
by the manufacturer of the filter cassette. It would be revised to
require that each dust data card be signed by the certified person who
actually performed the sampling shift examinations. For example, under
the proposal, the certified person who performs required sampling shift
examinations would be responsible for signing the dust data card and
verifying the proper flow rate, or noting on the back-side of the card
that the proper flowrate was not maintained. Since the certified person
who conducted the examination is the most knowledgeable of the
conditions surrounding the examination, MSHA would require that person
to sign the dust data card.
Consistent with MSHA's existing policy, the proposal would also
require that the person's signature on the data card include that
person's MSHA Individual Identification Number (MIIN). Since July 1,
2008, MSHA has required that the certified person section of the dust
data card include the MIIN, a unique identifier, for the certified
person, instead of the social security number. To assure privacy and to
comport with Federal requirements related to safeguarding personal-
identifiable information, MSHA has eliminated use of social security
numbers on its documents.
Proposed paragraph (f) is new and would apply when operators use
CPDMs to sample. It would require that, within 12 hours after the end
of the last sampling shift of the work week, a designated mine official
must validate, certify, and transmit electronically to MSHA all daily
sample and error data file information collected during the previous
calendar week (Sunday through Saturday) and stored in the CPDM. It
would also require the operator to maintain all CPDM data files
transmitted to MSHA for at least 12 months.
Some commenters to the CPDM RFI stated that MSHA should be
responsible for downloading all CPDM sampling data. MSHA has not
included this suggestion in the proposal. Under the proposal, mine
operators would download end-of-shift sampling information for weekly
transmission to MSHA. Operators have the primary responsibility for
providing miners with safe and healthy working conditions. Part of that
responsibility includes sampling the working environment to assure that
miners do not suffer material impairment of health or functional
capacity from exposure to respirable dust. Data are stored in the CPDM
memory for about 20 shifts. Operators, who would be in possession of
CPDMs, would be in the best position to prevent data loss and to
download and transmit CPDM data to MSHA in a timely manner.
Some commenters to the CPDM RFI suggested various timeframes for
operators' CPDM data transmission to MSHA, ranging from every shift, to
every week, to at least once a month. MSHA believes that transmitting
data every shift would be burdensome on operators and the Agency, with
negligible potential benefit. Similarly, MSHA believes that monthly
transmission is too infrequent, given the CPDM's limited memory
capacity noted in the previous discussion. The proposal reflects a
balance between MSHA's need for the data and a reasonable transmission
schedule and would require weekly transmission of daily sampling and
error data file information from the CPDM. The Agency solicits comment
on an appropriate timetable for operators' transmission of CPDM data to
MSHA. Please be specific in your comments and include rationale for
your suggestions.
Some commenters on the CPDM RFI recommended that the CPDM sampling
data downloaded to MSHA should be incapable of alteration (i.e., read-
only). Proposed Sec. 70.210(f) would require that sampling data stored
in the CPDM be sent to the MSHA internet portal. To be approved under
MSHA's new part 74 final rule (75 FR 17512), the CPDM must be designed
to prevent intentional tampering or inadvertent altering of monitoring
results. The part 74 final rule requires that the CPDM have a safeguard
or indicator which either prevents altering the measuring or reporting
functions of the device or indicates if these functions have been
altered.
M. Section 70.211 Respirable Dust Samples; Report to Operator; Posting
Proposed Sec. 70.211, redesignated from existing Sec. 70.210,
would address data contained in MSHA's report of respirable dust
samples provided to operators. It would also address requirements for
the operators' posting of sampling data. Proposed Sec. 70.211 would
include non-substantive changes in paragraphs (a)(2) through (a)(4),
and add a new paragraph (c). The other provisions would remain the
same.
Proposed paragraph (a)(2) would replace the language ``mechanized
mining unit or designated area'' with ``locations'' to assure that all
areas where samples are taken in the mine would be included (i.e., DOs,
ODOs, and DAs).
Proposed paragraphs (a)(3) and (a)(4) would include conforming
changes by adding that the concentration of respirable dust be
expressed ``as an equivalent concentration.'' The changes are
consistent with other proposed provisions that specify that the
concentration of respirable coal mine dust is converted to and
expressed as an 8-hour equivalent concentration.
Proposed paragraph (c) is new and would apply to operators who use
a CPDM. It would require the designated
[[Page 64438]]
mine official to validate, certify, and post certain sampling
information on the mine bulletin board. Proposed paragraph (c)(1) would
require the designated mine official to post the daily end-of-shift
sampling results within 1 hour after the end of the sampling shift. The
daily posting must include the: Mine identification number; location in
the mine from which samples were taken; respirable dust concentration
expressed as an equivalent concentration for each valid sample; total
amount of exposure accumulated by the sampled occupation during the
shift; occupation code, where applicable; reason for voiding any
sample; and shift length. This information, similar to that required
under existing Sec. 70.210, would provide miners with sampling and
exposure information for the shift. Under the proposal, the District
Manager could require any other information, such as the person
responsible for sampling during the shift and unique mining activities
(e.g., retreat mining, and cutting overcast).
Proposed paragraph (c)(2) would require the designated mine
official to post the weekly accumulated exposure (WAE) and the weekly
permissible accumulated exposure (WPAE) for each occupation and for
each crew within two hours after the end of the last sampling shift of
a work week (Sunday through Saturday). If an operator employs multiple
crews on a single MMU, the proposal would require that the WAE and WPAE
for each crew be posted. Posting the WAE and WPAE would provide miners
with the total amount of coal mine dust accumulated during the work
week, as well as the maximum amount of accumulated exposure to coal
mine dust permitted to be received during a normal work week. Posting
these data would assure that miners are informed of their weekly
exposure levels so that they can take a proactive role in their health
protection.
Proposed paragraph (c)(3) would require the information to be
posted for at least 15 calendar days. In response to the CPDM RFI, some
commenters suggested that the information be posted for 31 days. One
commenter stated that the information should be available to any
interested party, should be posted for 31 days and available thereafter
on request. Some commenters stated that MSHA should develop a standard
format for reporting data. Since the CPDM would generate daily and
weekly reports, the Agency believes that 15 days is an adequate amount
of time to assure that all affected miners would be informed of their
daily and weekly exposure levels. MSHA is concerned that requiring
daily and weekly reports to be posted for 31 days would cause the mine
bulletin board to become cluttered, making it difficult for miners to
sort through the data. The Agency requests comment on an appropriate
amount of time for posting and a standard format for reporting data.
Please be specific in your comments and include rationale for your
suggestions.
N. Section 70.212 Status Change Reports
Proposed Sec. 70.212, redesignated from existing Sec. 70.220,
would revise paragraph (a) and add a new paragraph (c). Paragraph (b)
would remain the same.
Proposed paragraph (a) would provide operators the option of
reporting to MSHA changes in operational status of the mine, MMU, or DA
electronically instead of in writing.
Proposed paragraph (c) is new and would require the designated mine
official to report status changes that affect the operational readiness
of any CPDM within 24 hours after the status change has occurred.
Examples could include a malfunction or breakdown of a CPDM that is
needed for sampling, or failure to have a spare CPDM available for
required sampling. Since MSHA would rely on data provided by the CPDM
to evaluate dust controls and to assure that miners are not exposed to
excessive levels of respirable coal mine dust, the Agency would need to
be informed of any circumstances that would affect the operational
readiness of CPDMs.
30 CFR Part 71
A. Section 71.2 Definitions
The proposed definitions, approved sampling device, CMDPSU, CPDM,
equivalent concentration, and quartz, are the same as proposed part 70
definitions discussed elsewhere in the preamble related to proposed
Sec. 70.2.
Designated Work Position (DWP)
The proposal would revise the existing definition of designated
work position (DWP) to mean a work position at a surface area of a coal
mine required to be sampled under this standard. Consistent with Agency
policy, the proposed definition would require that the DWP designation
consist of a four-digit surface area number assigned by MSHA
identifying the specific physical portion of a surface coal mine or
surface area of an underground mine that is affected, and a three-digit
MSHA coal mining occupation code describing the location to which a
miner is assigned in the performance of his or her regular duties.
Representative Samples
The proposal would add a new definition for representative samples.
It would be defined as respirable dust samples that reflect typical
dust concentration levels in the working environment of the DWP when
the miner is performing normal duties.
MSHA would consider that ``typical dust concentration levels'' are
present during sampling if they approximate and are characteristic of
the DWP's dust concentration levels during periods of non-sampling.
Under the proposed rule, samples must be taken while the DWP is engaged
in normal work duties.
The proposed definition would be added to ensure that operators
conduct dust sampling when working conditions accurately represent
miners' dust exposures. This would allow operators and MSHA to more
effectively evaluate the performance of dust controls and the adequacy
and effectiveness of operators' approved plans.
Work Position
The proposal would make a non-substantive change by adding the term
``three-digit'' to the existing definition of work position. The
proposal is consistent with the Agency's practice of identifying the
specific position being sampled. The proposed change would ensure that
MSHA can properly correlate each dust sample with the work location,
position and shift from which it was obtained.
B. Section 71.100 Respirable Dust Standards
The proposed rule would, over a phase-in period, lower the
concentration limit for respirable coal mine dust for surface coal
mines and for surface work areas of underground coal mines.
Proposed paragraph (a) would retain the existing requirement that
mine operators continuously maintain the average concentration of
respirable dust in the mine atmosphere during each shift to which each
miner in the active workings of each mine is exposed at or below 2.0
mg/m\3\ of respirable dust.
Proposed paragraphs (b) through (d) are new and would require mine
operators to lower dust levels, over a 24-month phase-in period, from
the existing level of 2.0 mg/m\3\ of air to 1.0 mg/m\3\. MSHA solicits
comment on the proposed phase-in periods and requests that a detailed
rationale accompany any comment or recommendation that is submitted.
Proposed Sec. 71.100(a) through (d) are identical to proposed
Sec. 70.100(a)(1) through (a)(4) and the rationale is
[[Page 64439]]
discussed elsewhere in the preamble related to proposed Sec.
70.100(a)(1) through (a)(4).
C. Section 71.101 Respirable Dust Standard When Quartz is Present
Proposed Sec. 71.101 would be identical to proposed Sec. 70.101,
discussed elsewhere in this preamble.
D. Section 71.201 Sampling; General and Technical Requirements
The proposed rule would revise operator sampling requirements in
existing Sec. 71.201.
Proposed paragraph (a) would make a nonsubstantive change to
existing Sec. 71.201(a) to clarify that the respirable dust samples
taken in the active workings be ``representative samples''. The term
``representative samples'' is discussed elsewhere in the preamble
related to definitions.
Proposed paragraph (b) would retain the existing requirement that
sampling devices be worn or carried directly to and from the DWP to be
sampled. It would revise the existing standard to require that sampling
devices remain with the DWP and be operational during the entire shift,
even when the shift exceeds 8 hours (extended shift). This would
include the time spent in the DWP and while traveling to and from the
DWP being sampled. Proposed Sec. 71.201(b) is consistent with proposed
Sec. 70.201(e); however, the language in proposed Sec. 71.201(b)
would be tailored to apply to DWPs. The rationale for the proposed
provision is the same as that in proposed Sec. 70.201(e), which is
discussed elsewhere in the preamble.
Proposed paragraph (b)(1) is new and would address work shifts
longer than 12 hours. It would require that when using a CMPDSU and the
work shift to be sampled is longer than 12 hours, the operator would
have to switch-out the unit's sampling pump prior to the 13th hour of
operation. Proposed Sec. 71.201(b)(1) is the same as proposed Sec.
70.201(e)(1).
Proposed paragraph (b)(2) is new and would add a similar
requirement to address work shifts longer than 12 hours when operators
use CPDMs. It would require the operator to switch-out the CPDM with a
fully charged device prior to the 13th-hour of operation. Proposed
paragraph (b)(2) is the same as proposed Sec. 70.201(e)(2). The
rationale for proposed Sec. 71.201(b)(1) and (b)(2) is discussed
elsewhere in the preamble related to proposed Sec. 70.201(e)(1) and
(e)(2).
Proposed paragraphs (c)(1) through (c)(4) are new and would
require: The mine operator to use one control filter for each shift of
sampling when a CMDPSU is used; each control filter to have the same
pre-weight date (noted on the dust data card) as the filters used for
sampling; each control filter to remain plugged at all times; each
control filter to be exposed to the same time, temperature, and
handling conditions as the filter used for sampling; and that each
control filter be kept together with the exposed samples after
sampling. Proposed Sec. 71.201(c)(1) through (c)(4) are identical to
proposed Sec. 70.201(f)(1) through (f)(4) and the rationale is
discussed elsewhere in the preamble related to proposed Sec.
70.201(f).
The proposed rule would revise and move existing Sec. 71.201(d) to
proposed Sec. 71.207(k), which would apply to operators who use a
CMDPSU or a CPDM for sampling DWPs. Proposed Sec. 71.207(k) is
discussed elsewhere in the preamble.
Proposed paragraph (d) is new and would require the operator to
make a record showing the length of each normal work shift for each
DWP, retain the records for at least six months, and make them
available for inspection by authorized representatives of the Secretary
and the miners' representative. Mine operators would need to know the
length of the normal work shift to determine the equivalent
concentration. MSHA would use these records to verify that operators
are accurately recording the normal work shift lengths so that miners
are not being overexposed.
Proposed paragraph (e), redesignated from existing paragraph (c),
would be revised to require that, upon request from the District
Manager, the operator would submit the date and time any respirable
dust sampling would begin. This information would have to be submitted
to the District Manager at least 48 hours prior to scheduled sampling.
The proposed 48-hour notification requirement would provide the Agency
the opportunity to observe and monitor operator sampling, which would
ensure that both operating conditions and sampling requirements are
met.
Proposed paragraphs (f)(1) through (f)(2), redesignated from
existing (e)(1) and (e)(2), retain the existing requirements.
Proposed paragraph (g) is new and would require mine operators
using CPDMs to provide training to all miners expected to wear one.
This would include each highwall drill operator, bulldozer operators,
and other work positions determined by results of respirable dust
samples to have the greatest respirable dust concentration. Proposed
Sec. 71.201(g) is the same as proposed Sec. 70.201(j) and the
rationale is discussed elsewhere in the preamble related to proposed
Sec. 70.201(j). In addition, proposed paragraphs (g)(1)-(5), which are
identical to proposed Sec. 70.201(j)(1)-(5), would establish the CPDM
training that would be required. The rationale, discussed elsewhere in
the preamble, is the same for both.
Proposed paragraph (h) is new and would require mine operators to
maintain a record of training at the mine site for two years following
completion of training. MSHA believes it is important to retain these
records to verify that the required training has been provided.
Proposed paragraph (h) would also permit a mine operator to maintain
the record at another location as long as the record could be
immediately accessed electronically from the mine site. Finally,
proposed paragraph (h) would require that upon request by an authorized
representative of the Secretary, Secretary of HHS, or miners'
representative, the mine operator must promptly provide access to any
such training record. Proposed Sec. 71.201(h) is the same as proposed
Sec. 70.201(k) and the rationale is discussed elsewhere in the
preamble related to proposed Sec. 70.201(k).
E. Section 71.202 Certified Person; Sampling and Sec. 71.203 Certified
Person; Maintenance and Calibration
Proposed Sec. Sec. 71.202 and 71.203 would be identical to
proposed Sec. Sec. 70.202 and 70.203, discussed elsewhere in this
preamble.
F. Section 71.204 Approved Sampling Devices; Maintenance and
Calibration
Proposed Sec. 71.204 would be identical to proposed Sec. 70.204,
discussed elsewhere in this preamble.
G. Section 71.205 Approved Sampling Devices; Operation; Air Flowrate
Proposed Sec. 71.205 would be identical to proposed Sec. 70.205
with one exception. The last sentence of proposed Sec. Sec.
70.205(b)(1) is not included in proposed Sec. 71.205 since it applies
to underground areas of anthracite coal mines. The rationale for
proposed Sec. 71.205 is the same as that for proposed Sec. 70.205,
which is discussed elsewhere in the preamble.
H. Section 71.206 CPDM Performance Plan
Proposed Sec. 71.206 would be identical to proposed Sec. 70.206,
discussed elsewhere in this preamble, with one exception. Proposed
Sec. 71.206(b)(1) would require the Plan to include the designated
work positions (DWPs) that would be sampled, and each DWP would be
required to be identified by a
[[Page 64440]]
unique 9-digit number. Though the 9-digit identification number would
be determined similarly to the identification number that would be
required for each MMU occupation in underground mines, it would be
modified to account for the operation of surface mines.
I. Section 71.207 Sampling of Designated Work Positions
Proposed Sec. 71.207 is derived from existing Sec. 71.208 and
would address sampling of designated work positions (DWPs) when using a
CMDPSU or CPDM.
Proposed Sec. 71.207(a) would revise existing Sec. 71.208(a) and
require operators, who are using CMDPSUs or CPDMs, to take one sample
every calendar quarter from the working environment of each DWP. The
quarterly periods would be: (1) January 1-March 31; (2) April 1-June
30; (3) July 1-September 30; and (4) October 1-December 31. Like the
existing rule, the proposal would require that one valid sample be
taken from each DWP. It would require that each sample be a
``representative sample,'' and would no longer include the term
``respirable dust sample.'' The term representative sample is new and
is discussed elsewhere in this preamble in proposed Sec. 71.2 related
to definitions. The proposed change to include a representative sample
would offer greater protection for miners since it would provide a more
accurate portrayal of miners' respirable dust exposure. The proposed
rule would reduce the existing DWP sampling frequency from bimonthly to
quarterly. However, as discussed below for proposed paragraph (b), the
proposal would require operators to sample an increased number of DWPs,
which are associated with higher dust concentrations, at a frequency to
assure that all miners in those positions are protected.
Proposed Sec. 71.207(b) is new and would require operators to
collect DWP samples at designated locations to measure respirable dust
generation sources in the active workings. The proposal would require
that DWP samples be collected from the following positions: each
highwall drill operator (MSHA occupation code 384); bulldozer operators
(MSHA occupation code 368); and other work positions designated by the
District Manager for sampling in accordance with proposed Sec.
71.207(f). The proposal would require that each highwall drill operator
be sampled since historical sampling data and MSHA experience indicate
that these positions have the greatest potential of being overexposed
to respirable quartz and respirable coal mine dust. Bulldozer operators
would be DWPs since they have similar risks and need additional
protection. Under circumstances specified in proposed Sec. 71.207(c),
discussed below, some bulldozer operators could be exempt from sampling
requirements. Also, the District Manager could designate other work
positions for sampling in accordance with proposed Sec. 71.207(f)
discussed below. MSHA believes that the proposed rule would provide
improved health protection for miners in work positions that have
increased risks of overexposure to respirable dust and quartz.
Proposed Sec. 71.207(c) is new and would require operators with
multiple work positions specified in paragraphs (b)(2) (bulldozer
operators) and (b)(3) (other work positions) to sample the DWP exposed
to the greatest respirable dust concentration in each work position
performing the same activity or task at the same location and exposed
to the same dust generation source. MSHA recognizes that some bulldozer
operator positions, or other work positions designated by the District
Manager, may have variable respirable dust exposure. In those cases,
the proposal would require the operator to sample only the DWP exposed
to the greatest respirable dust concentration. For example, if two
bulldozer operators push overburden at the same location, the operator
would sample the bulldozer operator exposed to the greatest
concentration of respirable dust. MSHA believes this would assure that
other miners performing similar tasks at the same location are
protected from excessive dust exposure. Also, if some bulldozer
operators push overburden and others perform reclamation work, the mine
operator would be required to sample one bulldozer operator pushing
overburden and one bulldozer operator performing reclamation work. MSHA
would not accept a respirable dust sample for the designated bulldozer
operator performing reclamation work as a representative sample of the
working environment for all bulldozer operators.
Proposed Sec. 71.207(c) would also require operators to provide
the District Manager with a list identifying the specific bulldozer
operator positions and other work positions under proposed Sec.
71.207(b)(2) and (b)(3) that will be sampled. The proposed timeframes
for submitting the lists would be: (1) Active mines--by [date 60 days
after publication of final rule]; (2) New mines--30 calendar days of
mine opening; or (3) Changes in operational status that increase or
reduce the number of active DWPs--within 7 calendar days. The proposed
rule would require the lists be submitted to the District Manager to
assure that the appropriate DWPs are identified for sampling. MSHA
believes that the proposal would provide operators with sufficient time
to identify and submit to the Agency the lists of DWPs to be sampled.
Proposed Sec. 71.207(d), redesignated from existing Sec.
71.208(h), would retain the requirement that DWP samples be taken on a
normal work shift and that when a normal work shift is not achieved,
the dust data card transmitted to MSHA must include a notation to that
effect. The proposal would include a new requirement that certified
persons must place the notation on the back side of the dust data card.
MSHA experience indicates that operators do not always put the notation
on the card in a conspicuous location, which increases the likelihood
that this important information can be overlooked. The proposed
revision is consistent with proposed Sec. 70.205(b)(2) and Agency
policy.
Proposed Sec. 71.207(d) would continue to allow MSHA to void a DWP
sample if a normal work shift is not achieved. It would delete the
existing requirement that any sample greater than 2.5 mg/m\3\ be used
when a normal work shift is not achieved. Instead, the proposal would
require that, if any sample exceeds the applicable standard by at least
0.1 mg/m\3\, regardless of whether or not a normal work shift was
achieved, the sample would be used to determine compliance with the
applicable standard. The proposed provision is similar to proposed
Sec. 70.207(d). The rationale for proposed Sec. 71.207(d) is the same
as for proposed Sec. 70.207(d), which is discussed elsewhere in the
preamble.
Proposed Sec. 71.207(e), redesignated from existing Sec.
71.208(g), would include a minor, nonsubstantive change.
Proposed Sec. 71.207(f), redesignated from existing Sec.
71.208(e), would allow the District Manager to designate additional
work positions for sampling where a concentration of respirable dust
exceeding 50 percent of the applicable standard has been measured by
one or more MSHA samples. Example: Suppose the applicable standard is
1.5 mg/m\3\ and MSHA samples taken for a work position at a surface
mine show respirable dust concentrations of 0.8 and 1.0 mg/m\3\. Both
samples exceed 0.75 mg/m\3\, which is 50% of the applicable standard.
Since the sampling results are at levels of concern, it is reasonable
for the District Manager to designate the position as a DWP. The
[[Page 64441]]
proposal would assure the work environments of miners in these
positions are sampled so that operators can determine if dust controls
are adequate and that miners are sufficiently protected. The proposal
is consistent with existing Sec. 71.208(e) which requires District
Managers to designate for sampling each work position where the average
concentration of respirable dust exceeds 1.0 mg/m\3\, which is 50% of
the existing standard.
Proposed Sec. 71.207(f) would also revise existing Sec. 71.208(e)
and provide that if the respirable dust standard is reduced in
accordance with proposed Sec. 71.101 to a level below the respirable
dust standard under proposed Sec. 71.100 (reduced standard due to
quartz), the District Manager may designate additional work positions
for sampling where the respirable dust concentration from one or more
MSHA samples exceeds the new (reduced) applicable standard. For
example: If based on samples from a work position, the respirable dust
standard is reduced due to quartz from 1.5 mg/m\3\ to 1.2 mg/m\3\ and
one or more MSHA samples for the position exceed 1.2 mg/m\3\, the
proposal would allow the District Manager to designate the work
position as a DWP. The proposal would improve miners' health and assure
that operators would be required to routinely sample work positions
that have increased health risks due to respirable quartz.
Proposed Sec. 71.207(g), redesignated from existing Sec.
71.208(f) would provide that, upon finding that the operator is able to
maintain continuing compliance with the applicable standard, the
District Manager may withdraw a DWP designated for sampling under
proposed paragraph (f) from sampling. Under the existing standard, the
District Manager must withdraw the designation of a work position for
sampling when such a finding is made. In both the existing and proposed
rules, the District Manager's finding is based on the results of MSHA
and operator samples taken during at least a one-year period. MSHA
believes that requiring the withdrawal of the work position from
sampling does not protect miners who are assigned duties that have
temporarily kept them from high dust exposures since assigned duties in
surface work positions, including truck drivers and front end loaders,
can change. Under the proposal, the District Manager would have
discretion to evaluate the potential duties of the DWP, and mining
conditions, to determine whether the DWP should be withdrawn from
sampling requirements.
Proposed Sec. 71.207(h), (h)(1), and (h)(2) would apply when the
respirable dust standard has been changed under proposed Sec. 71.101
due to the presence of quartz.
Proposed Sec. 71.207(h) is new and would require that when the
applicable dust standard is changed in accordance with proposed Sec.
71.101 (Respirable dust standard when quartz is present), the new
applicable standard would be effective on the first normal work shift
following the operator's receipt of notification of the change from
MSHA. The proposal would provide increased health protection for miners
by ensuring prompt implementation of the new applicable standard when
quartz is present. The proposed revision is consistent with Agency
policy and proposed Sec. 70.207(c), which is discussed elsewhere in
the preamble.
Proposed Sec. 71.207(h)(1) is derived from existing Sec.
71.208(b). Under the proposal, if all samples for the DWP from the most
recent quarterly sampling period do not exceed the new applicable
standard, the operator would begin sampling of the DWP on the first
normal work shift during the next quarterly period following
notification from MSHA of the change in the applicable standard.
Proposed Sec. 71.207(h)(1) is also consistent with Agency policy and
proposed Sec. 70.207(c)(1), which is discussed elsewhere in the
preamble.
Proposed Sec. 71.207(h)(2) is new and would require that if any
sample from the most recent quarterly sampling period exceeds the new
applicable standard (reduced due to the presence of quartz), the
operator must make necessary adjustments to the dust control parameters
within three days, and then collect a sample from the affected DWP on a
normal work shift. The sample would be treated as a normal quarterly
sample. MSHA believes that operators should take prompt actions to
reduce the dust levels when the new applicable standard is exceeded and
that three days is a reasonable amount of time to do so. Under the
proposed rule, the additional sample would allow operators to make a
timely determination as to whether dust controls are working
effectively. Proposed Sec. 71.207(h)(2) would afford additional
protection for miners who need to be on a reduced standard.
Proposed Sec. 71.207(i) is new and would require that no valid
single-shift equivalent concentration shall meet or exceed the ECV that
corresponds to the applicable standard. Tables 71-1 and 71-2 list ECVs
for operators using CMDPSUs or CPDMs, respectively. Proposed Sec.
71.207(i) is consistent with proposed Sec. 70.207(e), which would
apply when CMDPSUs are used, and Sec. 70.208(d), which would apply
when CPDMs are used. The rationale for the proposed provision is the
same as that for proposed Sec. Sec. 70.207(e) and 70.208(d), which are
discussed elsewhere in the preamble.
Proposed Sec. 71.207(j), redesignated from existing Sec.
71.208(d), would require that upon issuance of a citation for a
violation of the applicable standard, paragraphs (a) (quarterly
sampling) and (h)(2) (sampling when a respirable dust standard is
changed due to quartz) would not apply to the DWP until the violation
is abated in accordance with proposed paragraph (k). Except for minor,
nonsubstantive changes, the proposal would be essentially the same as
the existing standard. The proposal would also make conforming changes
to replace references to paragraphs that have been redesignated.
The proposed rule would redesignate and revise existing Sec.
71.201(d) as proposed Sec. 71.207(k), and would require operators to
take actions, listed in proposed paragraphs (k)(1) through (k)(4),
during the time for abatement fixed in a citation for violation of the
applicable standard.
Proposed paragraph (k)(1) would require operators to make approved
respirators available to the affected miners in accordance with
proposed Sec. 72.700. The proposal is consistent with existing Sec.
70.300, which requires operators to make respiratory equipment
available to all persons exposed to respirable dust concentrations
exceeding levels required to be maintained. Proposed Sec. 71.207(k)(1)
is consistent with proposed Sec. 70.207(g)(1). The rationale for
proposed Sec. 71.207(k)(1) is the same as that for proposed Sec.
70.207(g)(1), which is discussed elsewhere in the preamble.
Proposed paragraph (k)(2) would require operators to submit to the
District Manager for approval proposed corrective actions to lower the
concentration of respirable dust to within the applicable standard.
Proposed paragraph (k)(3) would require that, upon approval by the
District Manager, operators must implement corrective actions and then
sample the affected DWP on each normal work shift until five valid
representative samples are taken. Proposed paragraphs (k)(2) and (k)(3)
are derived from existing Sec. 71.201(d) and are consistent with
generally accepted occupational industrial hygiene principles. MSHA
believes that if a citation is issued for a violation of the applicable
standard, operators must take action to protect miners, including
making respiratory protection available, evaluating dust
[[Page 64442]]
control measures, and implementing new measures, as necessary, to
reduce miners' risks of dust exposure.
Proposed paragraph (k)(4) would require operators to review the
adequacy of the approved CPDM Performance Plan. If any CPDM Performance
Plan revisions are needed, it would require operators to submit
proposed revisions to the District Manager for approval within 7
calendar days following posting of the applicable end-of-shift
equivalent concentration on the mine bulletin board. MSHA believes that
when the respirable dust concentration meets or exceeds an applicable
ECV, the operator should be required to review the CPDM Performance
Plan to determine whether revisions are necessary to prevent miners
from being overexposed in the future. In addition, MSHA believes a 7-
calendar day period is a reasonable amount of time for the operator to
review and submit CPDM plan revisions for approval. This proposed
provision is consistent with proposed Sec. 70.208(f)(4) which would
apply when operators use a CPDM.
MSHA believes that proposed Sec. 71.207(k)(2)-(4) would assure
that effective proposed corrective actions are reviewed by the District
Manager and implemented by operators in a timely manner.
Proposed Sec. 71.207(l) is new. It would allow MSHA to terminate a
violation of the applicable standard when: (1) The equivalent
concentration of each of the five valid operator abatement samples is
at or below the applicable standard; and (2) within 15 calendar days
after receipt of MSHA's sampling results, the operator submits to the
District Manager for approval a proposed dust control plan applicable
to the DWP, or proposed changes to the approved dust control plan, as
prescribed in proposed Sec. 71.300. The proposal also would require
that proposed plan parameters or proposed changes reflect the control
measures used to abate the violation. The proposed provision is
consistent with proposed Sec. Sec. 70.207(h), 70.209(f), and
90.208(f). MSHA believes that 15 calendar days is a reasonable amount
of time for the operator to prepare and submit a dust control plan or
changes to that plan. The proposal would assure that dust control
parameters in the approved dust control plan for the DWP are
appropriate and demonstrate that they effectively reduce concentrations
of respirable dust.
The proposed rule would redesignate existing Sec. 71.208(c) as
proposed Sec. 71.207(m). Proposed Sec. 71.207(m) would remain
essentially the same as existing Sec. 71.208(c), with minor changes.
Like the existing standard, proposed Sec. 71.207(m) would apply to
operators who use a CMDPSU to meet DWP sampling requirements. If MSHA
notifies the operator that a valid representative sample taken from a
DWP exceeds the applicable standard but is less than the ECV that
corresponds to the applicable standard in Table 71-1, the operator
would be required, within 15 calendar days of notification, to sample
the DWP until five valid representative samples are collected. The term
``representative sample'' is new and discussed elsewhere in the
preamble related to definitions in proposed Sec. 71.2. Also, the
proposal would require that operators begin sampling on the first
normal work shift following receipt of MSHA's notification and that
samples be evaluated to determine compliance with the applicable
standard for the sampling period.
Proposed Sec. 71.207(n) is derived from existing Sec. 71.208(c)
and would apply to operators who use a CPDM to meet the DWP quarterly
sampling requirements under proposed paragraph (a). Proposed paragraph
(n)(1) is similar to proposed paragraph (m). It would require the
operator to sample the DWP until five valid representative samples are
collected when a valid end-of-shift equivalent concentration exceeds
the applicable standard but is less than the ECV that corresponds to
the applicable standard in Table 71-2. Sampling would be required to
begin on the first normal work shift after the operator determines that
the applicable standard is exceeded and the samples would be evaluated
to determine compliance with the applicable standard for the sampling
period. The rationale for sampling under proposed paragraph (n)(1) is
the same as that for proposed paragraph (m).
Proposed paragraph (n)(2) is new and would require the operator to
review the adequacy of the approved CPDM Performance Plan. If any CPDM
Performance Plan revisions are needed, it would require the operator to
submit proposed revisions to the District Manager for approval within 7
calendar days following posting of the end-of-shift equivalent
concentration on the mine bulletin board. MSHA believes that if an end-
of-shift respirable dust concentration meets or exceeds an applicable
ECV, the operator should be required to review the CPDM Performance
Plan to determine whether revisions are necessary to prevent miners
from being overexposed in the future. A 7-calendar day period is a
reasonable amount of time for the operator to review and submit CPDM
plan revisions for approval. This proposed provision is consistent with
proposed Sec. Sec. 70.208(g)(4), 70.209(g)(4), and 90.209(f)(4).
J. Section 71.208 Respirable Dust Samples; Transmission by Operator
Proposed Sec. 71.208, redesignated from existing Sec. 71.209,
would revise requirements for the operator to transmit respirable dust
sampling information collected by either a CMDPSU or CPDM. It would
revise paragraphs (a) and (c) and add a new paragraph (f); paragraphs
(b), (d), and (e) would remain the same.
Proposed paragraph (a) would make a non-substantive change to
clarify that it only applies to operators' transmission of samples
collected with a CMDPSU.
Proposed paragraph (c) would retain the existing requirement that
only persons certified in sampling complete the dust data card provided
by the manufacturer of the filter cassette. It would be revised to
require that each dust data card be signed by the certified person who
actually performed the sampling shift examinations. Consistent with
MSHA's existing policy, the proposal would also require that the
person's signature on the data card include that person's MSHA
Individual Identification Number (MIIN). Proposed Sec. 71.208(c) is
similar to proposed Sec. 70.210(c), and the rationale is discussed
elsewhere in the preamble related to proposed Sec. 70.210(c).
Proposed paragraph (f) is new and would apply when operators use
CPDMs to sample. It would require that, within 12 hours after the end
of the last sampling shift for a DWP, a designated mine official must
validate, certify, and transmit electronically to MSHA all sample and
error data file information collected during the previous shifts and
stored in the CPDM. It would also require the operator to maintain all
CPDM data files transmitted to MSHA for at least 12 months. Proposed
Sec. 71.208(f) is similar to proposed Sec. 70.210(f), and the
rationale is discussed elsewhere in the preamble related to proposed
Sec. 70.210(f).
K. Section 71.209 Respirable Dust Samples; Report to Operator; Posting
Proposed Sec. 71.209, redesignated from existing Sec. 71.210,
would address data contained in MSHA's report of respirable dust
samples provided to operators. It would also address requirements for
the operators' posting of sampling data. Proposed Sec. 71.209 would
include non-substantive changes in paragraphs (a)(2) through (a)(4),
revise paragraph (b), and add a new
[[Page 64443]]
paragraph (c). Paragraph (a)(1) would remain the same.
Proposed paragraph (a)(2) would replace ``designated work
position'' with ``DWP.'' Proposed paragraph (a)(3) would make a
conforming change by adding that the concentration of respirable dust
be expressed ``as an equivalent concentration.'' The change is
consistent with other proposed provisions that specify that the
concentration of respirable coal mine dust is converted to and
expressed as an 8-hour equivalent concentration, even when the total
time worked is greater than 8 hours.
Existing paragraph (a)(4) would be deleted because the average
concentration of respirable dust would be based on a valid single-shift
sample under the proposed rule.
Existing paragraph (a)(5) would be redesignated as proposed
paragraph (a)(4) and would retain the existing requirement that reasons
for voiding samples be posted.
Proposed paragraph (b) would be revised to require operators to
post sampling data for at least 46 days on the mine bulletin board.
Existing regulations under parts 70 and 71 require operators to post
sampling data for 50 percent of the specified sampling period (e.g., 31
days is 50 percent of the bimonthly sampling period specified in
existing Sec. 71.208(a)). Since proposed Sec. 71.207 would require
operators to take DWP samples every calendar quarter, posting the
sampling data for 46 days, which is approximately 50 percent of a
quarterly sampling period, would be consistent with existing posting
requirements.
Proposed paragraph (c) is new and would apply to operators who use
a CPDM. It would require the designated mine official to validate,
certify, and post certain sampling information on the mine bulletin
board. Proposed paragraph (c)(1) would require the designated mine
official to post the daily end-of-shift sampling results within 1 hour
after the end of the sampling shift. The daily posting must include
the: mine identification number; DWP at the mine from which samples
were taken; respirable dust concentration expressed as an equivalent
concentration for each valid sample; reason for voiding any sample; and
shift length. This information, similar to that required under existing
Sec. 71.210, would provide miners with sampling and exposure
information for the shift. Under the proposal, the District Manager
could require any other information, such as activities being performed
(hauling rock or hauling dust), physical conditions (rainy or dry) and
the location sampled on the mine site (in the pit or on the mountain
top).
Proposed paragraph (c)(2) would require the information to be
posted for at least 46 calendar days. Proposed paragraph (c)(2) is
identical to proposed paragraph (b) of this section, and the rationale
is discussed earlier in this section of the preamble. The Agency
requests comment on an appropriate amount of time for posting and a
standard format for reporting data. Please be specific in your comments
and include the rationale for your suggestions.
L. Section 71.210--Status Change Reports
Proposed Sec. 71.210, redesignated from existing Sec. 71.220,
would revise paragraph (a) and add a new paragraph (c). Paragraph (b)
would remain the same. Proposed paragraph (a) would provide operators
the option of reporting to MSHA changes in operational status of the
mine or DWP electronically instead of in writing. Proposed paragraph
(c) would require the designated mine official to report status changes
that affect the operational readiness of any CPDM within 24 hours after
the status change has occurred. Proposed Sec. 71.210(c) is identical
to proposed Sec. 70.212(c), and the rationale is discussed elsewhere
in the preamble related to proposed Sec. 70.212(c).
M. Section 71.300 Respirable Dust Control Plan; Filing Requirements
Proposed Sec. 71.300 would revise existing requirements for
operators who must file a dust control plan when they receive a
citation for a DWP sample.
Proposed Sec. 71.300(a) would require the operator to submit a
dust control plan applicable to the DWP identified in the citation and
that the plan be adequate to continuously maintain respirable dust
within the applicable standard at the DWP. For clarification and
consistency, the proposal would replace the term ``work position'' in
existing Sec. 71.300(a) with the term ``DWP.'' The proposal would also
replace language in the existing standard that requires the plan to be
submitted ``Within 15 calendar days after the termination date of a
citation for violation of Sec. 71.100 (Respirable dust standard) or
Sec. 71.101 (Respirable dust standard when quartz is present)'' with
``As required by Sec. 71.207(l).'' Proposed Sec. 71.207(l) is
discussed elsewhere in the preamble. Proposed Sec. 71.300(a) would
also replace the phrase ``permissible concentration at the surface work
position identified in the citation'' with the phrase ``applicable
standard at the DWP.'' This is a nonsubstantive change and reflects
MSHA's intent under the proposed rule that dust control measures
identified in the respirable dust control plan must be sufficient to
maintain dust levels at or below the applicable standard so that
concentrations do not get to citable ECV levels. This would assure
increased protections for miners.
Proposed Sec. 71.300(a)(1) is new and would require operators to
notify the representative of miners at least 5 days prior to submitting
a proposed respirable dust control plan, or proposed revisions to an
existing plan, to the District Manager for approval. The proposal would
also require that, if requested, operators must provide a copy to the
representative of miners at the time of the 5-day notification. This
provision is consistent with procedures for submitting plans in other
MSHA standards. MSHA experience reveals that input from miners on
proposed dust provisions is important. The proposal would allow
sufficient time for the miners' representative to become familiar with
the proposed plan or revisions and to discuss and resolve any issues
prior to submission to the District Manager for approval.
Proposed Sec. 71.300(a)(2) is new and would require the operator
to make available for inspection by the miners' representative a copy
of the proposed respirable dust control plan and any proposed revisions
that have been submitted for approval to the District Manager. This
would ensure that the miners' representative would have access to
copies of proposed plan documents for review.
Proposed Sec. 71.300(a)(3) is new and would require a copy of the
proposed respirable dust control plan, and a copy of any proposed
revision, submitted to the District Manager for approval to be posted
on the mine bulletin board at the time of submittal. The proposed dust
control plan or proposed revision would be required to remain posted on
the bulletin board until approved, withdrawn, or denied. The proposed
posting requirement would ensure that miners are made aware of the
content of the proposed plan.
Proposed Sec. 71.300(a)(4) is new and would permit the
representative of miners, following receipt of a proposed dust control
plan or proposed revision, to submit timely, written comments to the
District Manager for consideration during the review process. To
receive consideration by the District Manager, the miners'
representative would have to submit comments to the District Manager in
a ``timely'' manner. Under the proposal, MSHA would construe ``timely''
to mean that miners'
[[Page 64444]]
representatives must submit comments within a reasonable time after
they receive a copy of proposed plan provisions so the District Manager
would have sufficient time to consider them in the review process.
Proposed Sec. 71.300(a)(4) would require that, when requested, the
District Manager must provide operators with a copy of the miners'
representatives' comments. Proposed Sec. 71.300(a)(2) and (a)(4) would
ensure that all parties to the dust control plan process are aware of
each others' positions on potential issues.
Proposed Sec. 71.300(b)(1) and (b)(2) would include nonsubstantive
changes and replace ``designated work position'' with ``DWP'' for
consistency with other part 71 proposed provisions. No changes are
proposed for existing Sec. 71.300(b)(3) and (b)(4).
N. Section 71.301 Respirable Dust Control Plan; Approval by District
Manager and Posting
Proposed Sec. 71.301 would continue to address the criteria MSHA
would use to approve, on a mine-by-mine basis, the dust control plan.
MSHA is proposing revisions to Sec. 71.301(a)(1) and 71.301(b), and
proposing to add a new Sec. 71.301(d)(1) through 71.301(d)(3). No
changes are proposed for existing Sec. 71.301(a)(2), (c), and (e).
For consistency and clarification, proposed Sec. 71.301(a)(1)
would provide that, in approving respirable dust control plans, the
District Manager would consider whether the respirable dust control
measures would likely maintain ``concentrations of respirable coal mine
dust at or below the applicable standard.'' Under the existing
standard, the District Manager considers whether the dust control
measures would likely maintain ``compliance with the respirable dust
standard.'' The proposed language would clarify that the District
Manager's review would assure that control measures in the plan would
likely maintain respirable dust concentrations at or below the
applicable standard so that concentrations do not get to citable ECV
levels. This would assure improved protection for miners.
Proposed Sec. 71.301(b) would revise the existing standard to
permit MSHA to take respirable dust samples to determine whether
control measures in the operator's plan effectively maintain
``concentrations of respirable coal mine dust at or below the
applicable standard.'' MSHA's rationale for this proposal is the same
as that described above for proposed Sec. 71.301(a)(1). The proposed
language would clarify that the operator's dust control measures must
control dust to levels at or below the applicable respirable dust
standard, which would ensure that concentrations do not get to citable
ECV levels. This would assure improved protection for miners.
Proposed Sec. 71.301(d)(1) is new and would require that, upon
request and following notification of approval, the operator must
provide the approved respirable dust control plan to the miners'
representative. Proposed Sec. 71.301(d)(2) is also new and would
require the operator to make available the approved respirable dust
control plan for inspection by the representative of miners. The
proposed provisions are consistent with procedures for plan approval in
other MSHA standards. They would ensure that the miners' representative
would have timely access to the approved plan or plan revisions
following notification of approval. They reflect MSHA's recognition
that miners and their representatives play an important role in the
plan approval process and need to be kept aware of the contents of the
approved plan.
Proposed Sec. 71.301(d)(3), derived from existing Sec. 71.301(d),
is new and would require the operator to post the respirable dust
control plan on the mine bulletin board within 1 working day following
notification of approval, and keep it posted for the period that the
plan is in effect. The proposal would assure that miners, as well as
their representatives, are aware of approved respirable dust control
plan provisions. The Agency believes that allowing operators one full
working day to post the plan is reasonable and would provide effective
protection for miners.
30 CFR Part 72
A. Section 72.100 Periodic Examinations
Proposed Sec. 72.100 is new and would add periodic spirometry,
occupational history, and symptom assessment to the chest radiographic
examinations already required to be offered to underground coal miners.
It would extend the opportunity for those examinations to surface
miners.
Proposed paragraph (a) would require mine operators to provide
periodic examinations that include chest x-rays, spirometry, symptom
assessment, and occupational history at no cost to the miner. Under
NIOSH's existing Coal Workers' Health Surveillance Program (42 CFR part
37), ``Specifications for Medical Examinations of Underground Coal
Miners,'' underground coal mine operators are required to provide to
underground coal miners and miners at surface areas of underground coal
mines the opportunity for periodic evaluation with chest x-rays.
Proposed paragraph (a) would extend chest x-ray examinations to coal
miners at surface mines and implement a new requirement for spirometry
examinations, symptom assessment, and occupational history for all coal
miners. This proposal is consistent with recommendations of the Dust
Advisory Committee and the NIOSH Criteria Document. The Dust Advisory
Committee unanimously recommended that spirometry and questionnaire
data be collected periodically and that medical testing be extended to
surface coal miners. NIOSH recommended that the Coal Workers' X-Ray
Surveillance Program be extended to include spirometry examinations,
respiratory symptom and occupational history questionnaires, and
surface coal miners.
MSHA is proposing a requirement for a spirometry examination
because it is the most practical screening tool to detect reduced lung
function in miners, which is the common evidence of Chronic Obstructive
Pulmonary Disease (COPD). A requirement for a spirometry examination
also complements the chest x-ray program by detecting effects, other
than pneumoconiosis, of dust on the lung. The chest x-ray cannot detect
COPD.
Miners at surface mines would be included in medical monitoring
because they are also at risk of developing pneumoconiosis and COPD as
a result of exposure to respirable coal mine dust. Some occupations at
surface mines (e.g., drill operators, bulldozer operators, and truck
drivers) experience high exposure to silica and there are many former
underground miners among surface miners with chest x-ray films that
show pneumoconiosis. MSHA believes that this proposed requirement would
provide improved health protection for all coal miners.
MSHA's proposal to extend chest x-ray examinations and implement a
new requirement for spirometry would enable early detection of
pneumoconiosis and COPD, respectively, both of which are irreversible
and, for miners subject to continued overexposure, progressive. In the
absence of medical monitoring and early intervention, a miner may
continue to be overexposed, allowing the disease to progress so that
the miner may suffer material impairment of health or functional
capacity. For miners at surface mines, the proposal would allow them to
have knowledge of the existence of pneumoconiosis so that they could
exercise their rights to transfer to a less dusty job under proposed 30
CFR part 90. For all coal
[[Page 64445]]
miners, the proposed requirement for spirometry examinations would
allow them to have knowledge of an abnormal decline in lung function,
which would enable them to be proactive in their approach to their
health.
Proposed paragraph (a)(1) would require mine operators to use
NIOSH-approved facilities to conduct the examinations. Initial approval
of facilities and subsequent renewals of approvals will be dependent
upon meeting requirements specified by NIOSH. Approved facilities
would: provide standardized methods for evaluating miners' health; have
the necessary equipment and expertise for conducting tests,
interpreting results, informing miners, and maintaining confidentiality
of miners' health records; and be in locations that are accessible to
miners.
Proposed paragraph (b) would require mine operators to provide
miners the opportunity to have examinations specified in paragraph (a)
at least every 5 years. Both pneumoconiosis and COPD develop slowly. It
is unusual, for example, for a miner to have a positive chest x-ray
less than ten years from first exposure to respirable coal mine dust.
If a miner has a positive chest x-ray, it is important to intervene as
promptly as possible for maximum health protection. An interval of 5
years or less between each miner's serial spirometry examinations
should provide reasonable opportunity to assure detection of important
declines in a miner's lung function due to dust exposure.
Early symptoms of pneumoconiosis or COPD may not appear to be
important to miners so they might not be likely to seek medical
assistance without regulatory intervention. More pronounced symptoms
occur only after diseases become more advanced. The proposed
requirement for periodic examinations is necessary for early detection
of disease and early intervention to prevent progression of disease.
The proposal would also require mine operators to make examinations
available during a 6-month period that begins no less than 3.5 years
and not more than 4.5 years from the end of the last 6-month period.
For example: If an operator provided examinations to miners during a 6-
month period of July 1, 2009 to December 31, 2009, the operator would
be notified by NIOSH by April 1, 2013, 3 months prior to July 1, 2013,
to schedule the next 6-month period within which to offer miners the
examinations. This proposed schedule is designed to give mine operators
and approved facilities some flexibility in scheduling examinations and
is consistent with the timeframes established in NIOSH's existing
program.
Proposed paragraph (c) would require mine operators to provide the
examinations specified in paragraph (a) to miners, who begin work at a
coal mine for the first time (i.e., the miner has never worked in any
coal mine), when they are initially hired. Proposed paragraph (c)(1)
would require that these initial examinations be made available no
later than 30 days after beginning employment. Initial examinations
would be mandatory for the miner. MSHA believes that examinations
provided in close proximity to when miners are first hired and first
exposed to respirable coal mine dust are necessary in order to
establish an accurate baseline of the miner's health. The Agency
solicits comment on an appropriate time for operators to make initial
examinations available to miners. Please be specific in your comments
and include rationale for your suggestions.
Proposed paragraph (c)(2), like the existing standard for chest x-
rays, would require follow-up examinations to be provided within 3
years of the initial examinations. A 3-year rather than a 5-year
interval at the start of the miner's career could provide necessary
information for evaluating the results of spirometry tests. Several
researchers noted that the decline in lung function due to dust is non-
linear, sometimes with much of the decline coming early in the miner's
career, often in less than three years. (Attfield & Hodous, 1992;
Seixas NS, et al., 1993). The Agency solicits comment on an appropriate
time for operators to provide follow-up examinations to miners. Please
be specific in your comments and include rationale for your
suggestions.
Proposed paragraph (c)(3) would require the operator to provide
follow-up examinations within 2 years, if the second chest x-ray (after
the initial examination) shows evidence of pneumoconiosis or if the
second spirometry examination shows evidence of reduced lung function.
When this chest x-ray or spirometry examination indicates the presence
of disease, more frequent testing would be necessary to detect and
prevent further progression. There are some individuals who adversely
respond to dust exposure relatively quickly and it is important to
identify those individuals early.
Proposed paragraph (d), like the existing standard for chest x-
rays, would require each mine operator to develop a plan for providing
the medical examinations specified in paragraph (a) and to submit the
plan to NIOSH for approval. The proposed requirement for a plan is
essential to assure that mine operators provide the examinations within
the established timeframes and at an approved facility. The proposed
requirement for medical examinations would allow for early detection
and treatment and, to be effective, it should be part of a
comprehensive program designed to prevent further progression of early
respiratory disease. The proposed requirement for submitted plans to
include a roster specifying the name and current address of each miner
covered by the plan would provide NIOSH with the ability to assure
adequate notification of the availability of medical examinations to
covered coal miners. NIOSH has required that such rosters be provided
since the early 1990s, so this requirement would not create an
additional burden for mine operators.
Proposed paragraph (e), like the existing standard for chest x-
rays, would require each mine operator to post the approved plan for
providing periodic examinations specified in paragraph (a) on the mine
bulletin board and to keep it posted at all times. Posting the approved
plan on the mine bulletin board can help to improve miners' awareness
of the plan, and its purpose and provisions.
B. Section 72.700 Respiratory Equipment; Respirable Dust
Proposed Sec. 72.700 would revise and redesignate existing Sec.
70.300 to apply to all coal mines, whether surface or underground. The
proposal would also add new training and record retention requirements
related to respiratory equipment.
Proposed Sec. 72.700(a) would revise and redesignate existing
Sec. 70.300 and would require operators to make NIOSH-approved
respiratory equipment available to all persons as required by parts 70,
71 and 90. The proposal would revise the existing requirement and
expand it to ensure that, as required under parts 70, 71, and 90,
operators make respiratory equipment available to all persons,
regardless of whether the person is at a surface mine, the surface area
of an underground mine, or an underground mine. The existing standard
does not cover persons at surface mines and surface areas of
underground mines, nor miners subject to the part 90 requirements.
Respirable dust is found not only in underground mining environments,
but also at surface installations. Respirators can play an important
role as an interim measure to reduce miners' exposure to respirable
dust for short periods of time during which engineering and
[[Page 64446]]
environmental controls are being implemented. This interim protection
is available for underground miners. MSHA believes that the existing
protections afforded to underground miners should be extended to cover
persons at surface mines, surface work areas of underground mines, and
miners who are subject to the part 90 requirements.
Proposed Sec. 72.700(a) would also require operators to maintain
an adequate supply of respiratory equipment in order to make
respirators available as required by the section. The existing
requirement under Sec. 70.300 provides that operators must maintain a
supply of respiratory equipment adequate to deal with occurrences of
concentrations of respirable dust in the mine atmosphere in excess of
the levels required to be maintained under part 70. The proposal would
expand the existing standard's scope of coverage to include parts 71
and 90. The Agency believes that operators should maintain an adequate
supply of respiratory equipment so that any person, whether at a
surface mine, the surface area of an underground mine, or an
underground mine, as well as miners subject to the part 90
requirements, may avail themselves of the protections provided by
respirators if they choose to do so.
Proposed Sec. 72.700(a) would retain the existing requirement
under Sec. 70.300 that requires operators to use environmental control
measures as the primary means of regulating respirable dust in the
active workings. Consistent with the Mine Act, the proposal would
prohibit the substitution of respirators for environmental control
measures. Under existing practice and policy, engineering controls are
the primary method used to control exposure to respirable dust. Section
202(h) of the Mine Act expressly prohibits the use of respirators as a
substitute for environmental control measures in the active workings of
a mine. The proposal is also consistent with the Dust Advisory
Committee members' unanimous recommendation that respiratory equipment
should not be permitted to replace environmental control measures, but
should continue to be provided to miners until environmental controls
are implemented that are capable of maintaining respirable dust levels
within the applicable standard. The importance of using environmental
controls was not only recognized by the Dust Advisory Committee, but
also by NIOSH. NIOSH's 1995 Criteria Document recommends that
engineering controls continue to be relied on as the primary means of
protecting coal miners from respirable dust. Although MSHA received
comments in 2000 and 2003 that operators should be allowed to use
respiratory equipment in lieu of environmental and engineering controls
to achieve compliance, proposed Sec. 72.700(a) would retain the
existing requirement that environmental controls be used as the primary
means of complying with applicable dust standards. MSHA experience
indicates that even when respirators are made available, miners may not
use them because they can be uncomfortable and impractical to wear
while performing work duties. In some cases, a miner may not be able to
use a respirator due to health issues. General industrial hygiene
principles recognize that engineering and environmental controls
provide more consistent and reliable protection.
Proposed Sec. 72.700(b) is new and would require training to be
provided to all miners to whom respiratory protection must be made
available under the proposal. It would require an operator to provide
training prior to the affected miner's next scheduled work shift,
unless the miner received training within the previous 12 months on the
types of respirators that the operator makes available. The required
training would include instruction on the types of respirators made
available by the operator as well as instruction in the proper fitting,
care, use and limitations of the respirators. The proposed training
requirements are consistent with the recommendations made in the 1995
NIOSH Dust Criteria Document.
The proposed training requirements ensure that persons are
adequately informed about the respirators that are available to them.
In addition, the effectiveness of a respirator depends on the
respirator wearer receiving proper training on use, fit, and care.
Initial training would provide miners who must have respirators made
available to them with general information about each type of
respirator, as well as the proper care, fit, use and limitations of the
equipment. Retraining under the proposal would be required only if the
miner was not trained within the previous 12 months on the specific
types of respirators made available. When required, retraining would
reinforce the information and concepts provided in initial training. It
would also serve to remind persons of the specific technical and
functional limitations of the respiratory equipment available for use
at the mine. As with each of MSHA's training standards, the Agency
believes that providing proper instruction to miners serves to help
them internalize information necessary to achieve optimum health
protection from respirators, thereby reinforcing their commitment to
helping to reduce health and safety risks to which they may be exposed.
The proposed training requirements would be performance-oriented
and would allow for training to be tailored to each mine's individual
circumstances and needs. For example, operators could develop a
training module that not only includes the training topics required by
proposed Sec. 72.700(b), but also includes additional course content.
Similarly, operators could choose to emphasize certain topics more than
others based on the skills and knowledge assessment of their miners.
MSHA did not include the proposed training requirements under part
48 because part 48 already requires a considerable number of health and
safety topics in which miners must receive training in a specified
amount of time. For this reason, the proposal would require that this
training be in addition to that required under part 48. MSHA believes
requiring respirator training to be provided in a time period in
addition to that required under part 48 would allow miners to receive
adequate instruction on use of respirators in a comprehensive and
focused manner. Although the time of training must be in addition to
that required under part 48, operators may integrate this training into
their part 48 training schedule. MSHA specifically solicits comments on
the Agency's proposed approach to respirator training, including
supporting rationale for suggested alternatives.
Proposed Sec. 72.700(c) is new and would require operators to keep
a record of the training provided under this provision. It would also
require operators to maintain these records for at least two years
following completion of the training, and would permit operators to
store training records elsewhere if the records are immediately
accessible from the mine site by electronic transmission, e.g., by fax
or computer.
The proposed two-year retention period provides MSHA with
sufficient time within which the Agency can verify that miners have
received the required training, while not being unduly burdensome on
operators. MSHA solicits comment on the proposed record retention
period. In addition, the proposal would allow for the convenience and
efficiency of storing records at a central location, and accommodates
the trend towards electronic record-keeping.
Proposed Sec. 72.700(c) would also require operators to provide
training records to an authorized representative
[[Page 64447]]
of the Secretary of Labor, Secretary of HHS, or miners' representative
upon the request of such persons. This proposed requirement would be
consistent with MSHA's other training standards.
C. Section 72.701 Respiratory Equipment; Gas, Dusts, Fumes, or Mists
Proposed Sec. 72.701, redesignated from existing Sec. 70.305,
would expand the scope of the existing standard to all coal mines,
whether underground or surface. The existing standard applies to
underground coal mines and does not cover miners who work at surface
mines or surface areas of underground coal mines. Gases, dusts, fumes
and mists that may be detrimental to miners' health can be found at
surface facilities as well as in underground mining environments.
Respirators can play an important role in reducing miners' exposure to
these gases, dusts, fumes and mists, and MSHA believes that the
protections currently afforded to underground miners should extend to
miners who work at surface facilities.
D. Section 72.800 Single, Full-shift Measurement of Respirable Coal
Mine Dust
Proposed Sec. 72.800 is new and would allow the use of either
single, full-shift samples collected by either the Agency or operator
to determine noncompliance with the respirable coal mine dust
standards. MSHA believes that the proposed use of single, full-shift
samples collected by the Agency or operator to determine noncompliance
would eliminate an important source of sampling bias due to averaging
[for a detailed description of this issue, see Appendix A of the 2000
single sample proposed rule (65 FR 42108, July 7, 2000).] Available at
http://www.msha.gov/regsinfo.htm.
Under MSHA's existing standards and procedures, measurements made
at the dustiest occupational locations or during the dustiest shifts
sampled can be diluted by averaging them with measurements made under
less dusty conditions. This practice has frequently resulted in MSHA
not being able to require operators to take corrective actions to
protect miners from the hazard of excessive respirable dust exposure.
The existing regulatory framework based on averaging does not provide
miners with an adequate level of protection from overexposure to
respirable coal mine dust.
As was noted in the background section, in 1972, acting pursuant to
the Coal Act, the Secretaries of the Interior and HEW made the joint
finding in Sec. 202(f), concluding that ``single shift measurement of
respirable dust will not, after applying valid statistical techniques
to such measurement, accurately represent the atmospheric conditions to
which the miner is continuously exposed'' (Notice of Finding That a
Single Shift Measurement of Respirable Dust Will Not Accurately
Represent Atmospheric Conditions During Such Shift, 37 FR 3833
(February 23, 1972) (1972 Joint Finding)).
The proposed single sample provision is based on MSHA's experience,
review of section 202(f) of the Mine Act, significant improvements in
sampling technology, updated data, and comments and testimony on
previous notices and proposals addressing the accuracy of single, full-
shift sample measurements. This proposed rule would rescind the 1972
Joint Finding.
The proposed rule would allow the Agency to base determinations of
noncompliance on single full-shift samples collected by the Agency or
operator. The proposal is consistent with recommendations contained in
both the 1995 NIOSH Criteria Document and the 1996 Dust Advisory
Committee report. In the Criteria Document, NIOSH recommended the use
of single, full-shift samples to compare worker exposures with its
recommended exposure limit (REL) and concluded that this action is
consistent with Section 202(f) of the Act. The Dust Advisory Committee
recommended that MSHA change its compliance sampling program to allow
the use of single full-shift samples for determining compliance; seven
of nine Committee members affirmed this recommendation.
Sampling and analytical technology have progressed since the time
the 1972 Joint Finding was issued. In 1995, NIOSH published an accuracy
criterion that could be used to evaluate sampling and analytical
methods for airborne contaminants (Kennedy et al. 1995). The accuracy
criterion is that sampling and analytical methods need to produce
results that fall within 25% of the true value 95 times out of 100.
Various factors were included in the determination, such as the
analytical recovery from the sampler, sampler capacity, storage
stability of samples, and the effect of environmental factors on
sampling results. NIOSH also included evaluation criteria for the
experiments and details for the calculation of bias, precision, and
accuracy. In 1996, the Secretary and Secretary of HHS proposed to apply
this accuracy criterion (61 FR 10012) to determine whether a single,
full-shift measurement of respirable coal mine dust would ``accurately
represent'' the full-shift atmospheric dust concentration at the
sampling location. They proposed this because the term ``accurately
represent,'' as used in section 202(f) of the Mine Act (30 U.S.C.
842(f)) in connection with a single shift measurement was not defined.
Application of the NIOSH Accuracy Criterion to respirable coal dust
sampling would require that measurements come within 25 percent of the
corresponding true dust concentration at least 95 percent of the time.
The NIOSH Accuracy Criterion, widely recognized and accepted, has
been the standard used by occupational health professionals to validate
sampling and analytical methods for over 15 years. It is important that
sampling and analytical methods generate reliable measurements of
exposure for contaminants at or near the standard. Development of
methods that meet the NIOSH Accuracy Criterion is critically important
in order to produce reliable sampling and analytical methods.
OSHA frequently uses a similar accuracy criterion when issuing new
or revised single substance standards. For example, OSHA's benzene
standard provides: ``[m]onitoring shall be accurate, to a confidence
level of 95 percent, to within plus or minus 25 percent for airborne
concentrations of benzene'' (29 CFR 1910.1028(e)(6)). Similar wording
can be found in the OSHA sampling and analytical methods for arsenic
(29 CFR 1910.1018(e)(6)), lead (29 CFR 1910.1025(d)(9)), 1,2-dibromo-3-
chloropropane (29 CFR 1910.1044(f)(6)), ethylene oxide (29 CFR
1910.1047(d)(6)), and formaldehyde (29 CFR 1910.1048(d)(5)).
For purposes of section 202(f) of the Mine Act (30 U.S.C. 842(f)),
MSHA would consider a single, full-shift measurement to ``accurately
represent'' atmospheric conditions at the sampling location, if the
sampling and analytical method used meets the NIOSH Accuracy Criterion.
Because MSHA would restrict the measurement objective to an individual
shift and sampling location, the Agency has determined that
environmental variability beyond what occurs at the sampling location
on a single shift is not relevant to assessing measurement accuracy.
As previously noted in this preamble, the Secretary and the
Secretary of HHS jointly published a Federal Register notice in July
2000 proposing (1) to rescind the 1972 Joint Notice of Finding and (2)
a new mandatory standard stating a single, full-shift respirable dust
measurement would accurately represent atmospheric conditions to
[[Page 64448]]
which a miner is exposed during such shift. In March 2003, the
rulemaking record was reopened and the comment period was extended, and
in August 2003, the comment period was extended indefinitely. Since the
2000 single sample proposal has been integrated into this proposed
rule, the rulemaking records of the 2000 and 2003 single sample notices
are incorporated into the rulemaking record for this proposal. The
following discussion addresses comments made to 2000 and 2003 single
sample notices.
Some commenters suggested that the dust concentration that should
be measured is dust concentration averaged over a period greater than a
single shift because Congress intended that the measurement objective
be a long-term average. Specifically, some of these commenters stated
that because coal dust exposure is related to chronic health effects,
the exposure limit should be applied to dust concentrations averaged
over a miner's lifetime. These commenters identified the measurement
objective as being the dust concentration averaged over a long, but
unspecified, term and stated that a single, full-shift measurement
cannot accurately estimate this long-term average.
However, Section 202(b) of the Mine Act (30 U.S.C. 842(b)),
explicitly requires that the average dust concentration be continuously
maintained at or below the applicable standard during each shift. In
Consolidation Coal Company v. Secretary of Labor 8 FMSHRC 890 (1986),
aff'd 824 F.2d 1071 (DC Cir. 1987), the Federal Mine Safety and Health
Review Commission found that each episode of a miner's overexposure to
respirable dust significantly and substantially contributes to the
health hazard of contracting chronic bronchitis or coal workers'
pneumoconiosis, diseases of a fairly serious nature. Exposures during a
single shift play a critical role in protecting miners' health, not
just long term average exposures.
Commenters also stated that dust concentrations can vary during a
shift due to changing conditions such as the height and slope of the
seam. Also, dust concentrations are not uniform and may vary due to
unpredictable, infrequent events, such as a ``face blowout'' (a violent
expulsion of coal together with large quantities of coal dust or
methane gas) or high winds at a surface mine. Commenters submitted
evidence that dust concentrations can vary significantly near the
mining face, and that these variations may extend into areas where
miners are located. As a result, according to these commenters, the
average dust concentration over a full shift is not identical at every
point within a miner's work area.
MSHA recognizes that dust concentrations in the mine environment
can vary from location to location, even within a small area near a
miner. As mentioned earlier, the Mine Act does not specify the area
that the measurement is supposed to represent; the sampler unit may be
placed in any location reasonably calculated to determine excessive
exposure to respirable dust. Commenters presented no evidence to
demonstrate that short-term high exposures can overload a dust sampling
filter or cause the sampling device to malfunction. The approved
samplers are designed to measure the atmospheric conditions at a
specific sampling location over a full shift.
Some commenters suggested that local factors such as dusty clothing
could cause concentrations in the immediate vicinity of the sampler
unit to be unrepresentative of a larger area. Commenters presented no
evidence to demonstrate that dusty clothing can have a significant
impact on sampling results obtained over a full shift. Moreover,
respirable coal mine dust represents a hazard to the miner regardless
of the source.
Several commenters suggested that the measurement objective should
be a miner's ``true exposure'' or what the miner actually inhales. MSHA
does not intend to use a single, full-shift measurement to estimate any
miner's ``true exposure,'' because no sampling device can exactly
duplicate the particle inhalation and deposition characteristics of a
miner at any work rate (these characteristics change with work rate),
or at the various work rates occurring over the course of a shift.
Limiting the respirable dust concentration at every location miners
work or travel would ensure reduced exposures that would result in
reduced health risks.
Some commenters suggested that MSHA continue to average at least
five separate measurements prior to making a noncompliance
determination. They stated that abandoning this practice would reduce
the accuracy of noncompliance determinations. Several of these
commenters maintained that the average of dust measurements obtained at
the same occupational location on different shifts more accurately
represents dust exposure to a miner than a single, full-shift
measurement. They stated that not averaging measurements would reduce
accuracy to unacceptable levels. Other commenters agreed with MSHA and
NIOSH that the averaging of multiple samples can dilute and mask
specific instances of overexposure. Some of these commenters stated
that averaging not only distorts the estimate of dust concentration
applicable to individual shifts, but also biases the estimate of
exposure levels over a longer term. In addition, some commenters
objected to MSHA's current policy of issuing citations only when the
average of five dust samples exceeds the applicable dust standard. They
noted that the averaging methodology used during MSHA sampling creates
the potential to underestimate the exposure at one occupation, such as
the DO, by diluting its measurement with the exposure measurements of
other occupations, such as the non-designated occupations.
Consistent with NIOSH and the Dust Advisory Committee, MSHA
believes that averaging multiple measurements can mask individual
overexposures by diluting a high measurement at one location, or on one
shift, with a lower concentration taken at another location, or on
another shift. The Agency's existing regulatory framework of averaging
measurements does not ensure that the concentration of respirable dust
is maintained at or below the applicable standard during each shift,
which is inconsistent with the statutory requirement that operators
continuously maintain the average respirable dust exposure of each
individual miner on each shift at or below the applicable respirable
dust standard.
Some commenters stated that the NIOSH Accuracy Criterion did not
conform to international standards adopted by the European Committee
for Standardization (CEN) (European Standard No. EN 482, 1994). The
current edition of this standard was updated in 2006. The NIOSH
Accuracy Criterion not only conforms to the CEN criterion but is, in
fact, more stringent than the CEN criterion. The CEN criterion requires
that 95 percent of the measurements fall within 30 percent
of the true concentration, compared to 25 percent under the
NIOSH criterion. Also, EN 482 (2006) imposes no control over inaccuracy
in the measurement of sampling and analytical accuracy itself. Any
sampling and analytical method that meets the NIOSH Accuracy Criterion
will also meet or exceed the CEN criterion in European Standard No. EN
482 (2006).
Some commenters suggested that method accuracy should be determined
under actual mining conditions rather than in a laboratory or in a
controlled environment. Although the NIOSH Accuracy Criterion does not
require field testing, it recognizes that field
[[Page 64449]]
testing ``does provide further test of the method.'' To avoid confusing
real differences in dust concentration with measurement errors when
testing is done in the field, ``precautions may have to be taken to
ensure that all samplers are exposed to the same concentrations''
(Kennedy et al. 1995). Similarly, the CEN criterion for method accuracy
specifies that testing of a procedure shall be carried out under
laboratory conditions (European Standard No. EN 482, 2006).
One commenter opposed the application of the NIOSH Accuracy
Criterion since the commenter believed it ignores environmental
variability. MSHA proposes to restrict the measurement objective to an
individual shift and sampling location. Therefore, environmental
variability beyond what occurs at the sampling location on a single
shift would not be relevant to assessing measurement accuracy.
MSHA has concluded that sufficient data exist for determining the
uncertainty associated with a single, full-shift measurement; rigorous
requirements are in place, as specified by existing standards, to
ensure the validity of a respirable coal mine dust sample; and valid
statistical techniques were used to determine that MSHA's improved dust
sampling and analytical method meets the NIOSH Accuracy Criterion. In
accordance with section 202(f) (30 U.S.C. 842(f)) and section 101 (30
U.S.C. 811) of the Mine Act, MSHA proposes to rescind the 1972 joint
notice of finding.
30 CFR Part 75
A. Section 75.325 Air Quantity
The proposed rule would revise existing Sec. 75.325(a)(2) by
adding a new requirement that when the operator measures the quantity
of air reaching the working face (production area or area where coal is
extracted) and a blowing face ventilation system is used, the operator
must take the air measurement with any machine-mounted dust collector
system turned off.
MSHA existing standards for underground coal mines require adequate
quantities of air in the working face to dilute, render harmless, and
carry away flammable, explosive, noxious and harmful gases, dusts,
smoke, and fumes. Therefore, before mining begins in a working face,
operators are required to measure the amount of air coming into that
area.
To ensure that the working face is ventilated with the amount of
air required by the approved ventilation plan, existing Sec. 75.325
specifies where the air quantity measurement at the face must be taken.
Under the existing standard, operators using blowing ventilation in the
working face are measuring the air quantity in that area after the
continuous mining machine is moved into the area and the dust collector
system on the machine is turned on. MSHA believes that this practice is
not providing an accurate measurement of the air coming into the
working face. When the dust collector system is turned on, it acts as a
vacuum, pulling air from behind the line curtain, which results in a
higher air quantity reading in the working face than the actual
quantity of air reaching the area. The dust collector systems are
supplemental control devices used primarily to assist in filtering and
directing the dust through the systems and then exhausting clean air
out the back of the systems. Maintaining the required quantity of air
in the working face areas ensures that the dust collector systems
operate efficiently. More importantly, it is essential to protecting
miners' health.
Therefore, the proposed rule would require operators who use dust
collector systems in conjunction with blowing face ventilation systems
to determine the air quantity with the dust collector turned off. This
proposed provision would assure that the operator gets a more accurate
air quantity reading and therefore would provide better protection for
the miners.
B. Section 75.332 Working Sections and Working Places
Proposed Sec. 75.332(a)(1) would revise the existing standard to
require that ``each MMU'' on each working section be ventilated by a
separate split of air directed by overcasts, undercasts, or other
permanent ventilation controls. It would retain the requirement that a
separate split of air must ventilate each area where mechanized mining
equipment is being installed or removed.
MSHA is proposing this change to address the situation where
operators operate two sets of mechanized mining equipment on a working
section ventilated by a single split of intake air, and mining
activities from the upwind set of equipment expose miners working
downwind to respirable dust and quartz. MSHA believes that, together,
proposed Sec. 75.332 and the proposed MMU definition, discussed
elsewhere in the preamble related to proposed Sec. 70.2, would improve
miners' health by reducing their exposure to respirable dust.
C. Section 75.350 Belt Air Course Ventilation
The proposed rule would redesignate existing paragraph (b)(3)(i) as
paragraphs (b)(3)(i)(A) and (b)(3)(i)(B). Proposed paragraph
(b)(3)(i)(A) would retain the existing requirement that operators limit
the average concentration of respirable dust in the belt air course,
when used as a section intake airway, to 1.0 mg/m\3\.
Proposed paragraph (b)(3)(i)(B) would reduce the respirable dust
standard in a belt air course, when used as a section intake airway,
from 1.0 mg/m\3\ to 0.5 mg/m\3\ on [date 6 months after the effective
date of the final rule]. The proposed lower limit of 0.5 mg/m\3\ is 50%
of the proposed 1.0 mg/m\3\ respirable dust standard in proposed Sec.
70.100(a)(4), and is consistent with proposed Sec. Sec. 70.100(b)(2)
and 90.100(b). MSHA has included this conforming change in recognition
of the Agency's regulatory history and policy with respect to areas of
the mine where dust presents additional health risks. MSHA solicits
comment on the proposed phase-in period for lowering the respirable
dust limit and requests that a detailed rationale accompany any comment
or recommendation that is submitted.
MSHA believes that when belt air is used as a source of intake air,
the dust concentration in the belt air must be at or below 0.5 mg/m\3\
to ensure that relatively clean air is used to ventilate the face.
MSHA is proposing a conforming change to existing paragraph
(b)(3)(ii) which requires that the average concentration of respirable
dust in the belt entry must be at or below the lowest applicable
respirable dust standard on that section when miners on a working
section are on a reduced standard below 1.0 mg/m\3\. Proposed paragraph
(b)(3)(ii) would replace ``1.0 mg/m\3\'' with ``that specified in
75.350(b)(3)(i).'' The proposed revision would recognize that the belt
air respirable dust standard would change from 1.0 mg/m\3\ to 0.5 mg/
m\3\ after a six-month phase-in period.
D. Section 75.362 On-shift Examinations
Proposed Sec. 75.362(a)(2) would add a new requirement that the
person conducting the on-shift examination must record the results and
corrective actions taken to assure compliance with respirable dust
control parameters in the approved mine ventilation plan. The proposal
focuses attention on the need for properly functioning dust controls
and would greatly improve the level of
[[Page 64450]]
health protection for underground coal miners. A record of the results
of all dust control parameters and any corrective action taken would
assist the Agency and operators in evaluating dust control parameters
and assist in determining whether the parameters specified in the mine
ventilation plan continue to be effective in controlling respirable
dust. Proposed paragraph (a)(2) is consistent with the Dust Advisory
Committee's unanimous recommendation that operators should record the
results of on-shift examinations.
Proposed Sec. 75.362(a)(2) would also add a new requirement that
the on-shift examination of dust control parameters include specific
measurements like roof bolter dust collector vacuum levels, scrubber
air flow rate, and work practices required in the mine ventilation
plan. Conducting examinations of these dust control measures and
recording the results offers additional protection for miners because
the information would provide early warning of deteriorating dust
controls, allowing corrective action to be taken before dust controls
fail to protect miners from excessive dust levels. This proposed
revision would also assist operators in evaluating whether they are
meeting the requirements of the approved dust control parameters in the
ventilation plan so that they can effectively determine whether the
parameters are sufficient to control miners' respirable dust exposure.
Proposed paragraph (a)(2) is consistent with the Dust Advisory
Committee's unanimous recommendation that MSHA should examine all
recorded operational data and information on miner exposure and dust
control measures as part of the on-going and six-month review of the
ventilation plan in order to evaluate the continued effectiveness of
the plan. With the new proposed requirements, MSHA will be able to
review and evaluate additional information on dust control measures as
part of the Agency's review of the ventilation plan.
The proposed rule would revise Sec. 75.362(g)(2) by renumbering
and adding new paragraphs (g)(2)(i)-(ii), (3), and (4). Proposed
paragraph (g)(2) would make non-substantive changes to existing
paragraph (g)(2) and would retain the existing requirement that the
certified person directing the on-shift examination assure compliance
with the respirable dust control parameters specified in the approved
mine ventilation plan. Proposed paragraph (g)(2)(i) is new and would
include requirements from existing paragraph (g)(2) that the certified
person must certify by initials, date, and time that the on-shift
examination was conducted and would include a new requirement that the
certification be placed on a board maintained at the section load-out
or similar location showing that the examination was made prior to
resuming production. The certification requirements would provide
assurance that the examinations were made. Posting of the certification
on a board at the section load-out or similar location would permit
miners on the section to confirm easily that the required examination
was made in a timely manner.
Proposed paragraph (g)(2)(ii) is new and would require that the
certified person directing the examination verify, by initials and
date, the record of the examination results no later than the end of
the shift. Under new proposed paragraph (g)(3), this record of
examination results would be required to be countersigned by the mine
foreman or equivalent mine official by the end of the foreman's or mine
official's next regularly scheduled work shift.
The proposal would require that the on-shift examination record
contain (1) The results of the examination to assure compliance with
the ventilation plan; (2) verification by the certified person of the
record of the results of the examination; and (3) countersigning of the
record by the mine foreman or equivalent mine official.
MSHA has added the proposed new requirement that the certified
person directing the on-shift examination verify the examination
results and that the mine foreman or equivalent mine official
countersign the record to assure that a qualified official evaluates
the effectiveness of the dust control parameters and that a
knowledgeable supervisory official receives the necessary notification
of the on-shift examination results. MSHA believes that the proposed
requirement would ensure that a person with authority is informed and
can implement any necessary changes to dust control parameters to
maintain compliance with applicable respirable dust standards.
Proposed paragraph (g)(3) would also add a new requirement that the
on-shift examination record must be made in a secure book that is not
susceptible to alteration, or recorded electronically in a secure
computer system that is not susceptible to alteration. MSHA believes
that a record of the results of the examination of all dust control
parameters and corrective actions would provide a history of the
conditions documented at the mine and would alert miners and mine
management to recurring problems, to conditions that need to be
corrected and to those corrective actions taken. The proposal would
allow records to be kept in the traditional manner in a secure book,
and it would accommodate new technology by allowing the record to be
kept electronically in a secure manner. Based on MSHA's longstanding
history with other safety and health records, the Agency believes that
records should be maintained so that they cannot be altered. In
addition, electronic storage of information and accessing it through
computers is increasingly a common business practice in the mining
industry. The proposal would permit the use of electronically stored
records provided they are secure, not susceptible to alteration, able
to capture the information and signatures required, and are accessible
to the representative of the coal miners and MSHA. MSHA believes that
electronic records meeting these criteria are practical and as reliable
as traditional records. MSHA also believes that once records are
properly completed and reviewed, mine management can use them to
evaluate whether dust control parameters are adequate or need
appropriate adjustments; whether the same conditions or problems, if
any, are recurring; and whether corrective measures are effective.
Proposed paragraph (g)(3) is consistent with the Dust Advisory
Committee's unanimous recommendation that operators should conduct
periodic reviews of the adequacy of the dust control parameters
stipulated in the mine ventilation plan and make modifications
necessary to achieve and maintain compliance with the applicable dust
standard.
Proposed paragraph (g)(4) is new and would require that the records
be retained at a surface location at the mine for at least 1 year and
be made available for inspection by authorized representatives of the
Secretary and the representatives of miners. This proposed requirement
is consistent with recordkeeping provisions in other MSHA standards and
would assure that examination results are maintained for a period of
time to allow for MSHA's evaluation during several inspections and are
accessible to the representative of the miners.
Proposed paragraph (g)(4) is consistent with the Dust Advisory
Committee's unanimous recommendation that recordkeeping be required as
a part of on-shift examinations under Sec. 75.362. The Committee
explained that the results of the on-shift examinations were
[[Page 64451]]
informative and should be recorded and shared with workers who have
been properly trained concerning their interpretation and importance.
Furthermore, the Committee unanimously recommended that MSHA
inspections should include: A review of recorded parameter data; dust
control measures observed in operation; and input from miners regarding
whether the dust controls and coal production are representative of
usual operations.
E. Section 75.371 Mine Ventilation Plan: Contents
Proposed Sec. 75.371(f), (j) and (t) would revise the information
that operators would be required to provide in mine ventilation plans.
Proposed paragraph (f) would add a new requirement to include the
minimum quantity of air that would be delivered to the working section
for each mechanized mining unit. It would also add a new requirement
that the description of each different dust suppression system used on
equipment on each working section be identified by make and model. The
proposed rule would add new requirements in paragraphs (f)(1) through
(f)(4) to include in plans the following information related to each
section: (1) The number, types, location, orientation, operating
pressure, and flow rate of operating water sprays; (2) the maximum
distance that ventilation control devices will be installed from each
working face when mining or installing roof bolts in entries and
crosscuts; (3) procedures for maintaining the roof bolter dust
collection system, if used, in approved condition; and (4) recommended
best work practices for equipment operators to minimize dust exposure.
Proposed paragraph (j) would be revised to add a new requirement
that the type and size of dust collector screens used and a description
of the procedures to be followed in properly maintaining dust
collectors used on equipment be included in the ventilation plan.
The proposed revisions are consistent with the 1992 Report of the
Coal Mine Respirable Dust Task Group, which identified insufficient
detail and specificity as a major factor that can adversely affect the
quality of dust control plans. Proposed paragraphs (f)(1) through
(f)(3) are also consistent with the recommendations of a recent
targeted enforcement initiative conducted by MSHA's Respirable Dust
Emphasis Teams, which focused on miners' exposures to respirable coal
mine dust at selected underground coal mines as part of the Agency's
Comprehensive Initiative to End Black Lung--Act Now! MSHA determined
that due to ambiguities in ventilation plans, miners had trouble
determining the types of dust controls to use and how to evaluate their
effectiveness. After reviewing results from this initiative, MSHA
stated that operators should include in their plans: The type of water
sprays and water volume at the minimum pressure to be used; orifice
size; spray pattern; location where each type of spray will be used;
and minimum number of sprays that will be maintained. Recommendations
also included the location of curtains where roof bolting is being
performed since the distance from the face is important in the
effectiveness of ventilation. Guidance was provided to mine operators
on the proper maintenance of roof bolter dust collectors.
In the 2003 plan verification proposed rule, MSHA proposed
revisions to Sec. 75.371 to require operators to include any specific
work practices used to minimize the dust exposure of individual miners,
along with information on the location of the roof bolter during the
mining cycle for each continuous miner section, and the cut sequence
for each longwall mining section in the ventilation plan. Some
commenters on the proposal stated that more dust control parameters and
information should be contained in plans. In response to comments and
consistent with the Agency's findings in its ongoing Dust Emphasis
Program, the proposal would require that ventilation plans include more
information and specificity on dust suppression systems used and best
work practices used by equipment operators to minimize dust exposure.
The additional information that MSHA proposes to include in the
ventilation plan would allow both operators and MSHA to observe and
measure specific dust control parameters to better evaluate the
effectiveness of the dust control systems. This would result in greater
protection to miners from hazards of respirable dust. In addition, if a
respirable dust standard were exceeded, the operator and MSHA would be
in a better position to determine why (e.g., whether the plan was not
followed or it was inadequate).
Another commenter on the 2003 plan verification proposal stated
that operators must have flexibility to adjust ventilation and water
pressure in order to meet the specific conditions of the mine.
MSHA does not intend to limit the operator's ability to make
appropriate adjustments to mine ventilation and dust suppression
systems for MMUs. MSHA recognizes that ventilation and dust suppression
systems necessary to control respirable dust must be based on the
conditions of the mine.
Proposed Sec. 75.371(t) would include a nonsubstantive change to
replace a parenthetical reference to existing Sec. 70.208 with
proposed Sec. 70.209, because Sec. 70.208 has been redesignated as
Sec. 70.209 in the proposed rule.
30 CFR Part 90
A. Section 90.1 Scope
Proposed Sec. 90.1 would be revised to include surface coal miners
and to make a conforming change. The proposal would extend to all coal
miners who have evidence of the development of pneumoconiosis the
option to work in an area of a mine where the average concentration of
respirable dust in the mine atmosphere during each shift is
continuously maintained at or below the applicable standard. Surface
coal miners are at risk of developing pneumoconiosis as a result of
exposure to respirable coal mine dust. Chest x-ray examinations enable
early detection of pneumoconiosis, which is irreversible and, if
exposure continues, progressive. In the absence of medical monitoring
and intervention, a miner may continue to be exposed, allowing the
disease to progress so that the miner may suffer material impairment of
health or functional capacity.
The proposal would also make a conforming change that would revise
the existing standard to require mine operators to continuously
maintain the average concentration of respirable dust to which the part
90 miner would be exposed at or below ``the applicable standard'' as
specified in proposed Sec. 90.100. The proposed language, ``the
applicable standard,'' would replace the existing language, ``1.0
milligrams per cubic meter of air.'' This conforming change would be
necessary because the Agency is proposing to phase in a lower
respirable dust standard, from 1.0 mg/m\3\ to 0.5 mg/m\3\, in proposed
Sec. 90.100 on [date six months after the effective date of the final
rule].
B. Section 90.2 Definitions
The proposed definitions of approved sampling device, CMDPSU, CPDM,
equivalent concentration, MMU, quartz, weekly accumulated exposure, and
weekly permissible accumulated exposure, are the same as proposed part
70 definitions discussed elsewhere in the preamble related to proposed
Sec. 70.2.
Part 90 Miner
The proposed rule would amend the existing definition of part 90
miner to
[[Page 64452]]
state it applies to a miner employed at ``a coal mine.'' This proposed
revision would conform with proposed Sec. 90.3, which extends part 90
protections to surface miners. Proposed Sec. 90.3 is discussed
elsewhere in the preamble.
The proposal would also make a conforming change to replace ``1.0
mg/m\3\'' with ``the applicable standard.'' The change would reflect
that the respirable dust standard would change from 1.0 mg/m\3\ to 0.5
mg/m\3\ after a six-month phase-in period. Other minor nonsubstantive
changes would be made.
Representative Samples
The proposal would add a new definition for representative samples.
It would be defined as respirable dust samples that reflect typical
dust concentration levels in the working environment of the part 90
miner when the miner is performing normal work duties.
MSHA would consider that ``typical dust concentration levels'' are
present during sampling if they approximate and are characteristic of
the part 90 miner's dust concentration levels during periods of non-
sampling. Under the proposed rule, samples must be taken while the part
90 miner is engaged in normal work duties, as that term is defined in
existing Sec. 90.2. Samples taken when the part 90 miner performs an
atypical task, or other activity that does not mirror duties performed
on a routine day-to-day basis in the part 90 miner's job classification
at the mine would not be considered representative samples for the part
90 miner.
The proposed definition would be added to ensure that operators
conduct dust sampling when working conditions accurately represent
miners' dust exposures. This would allow operators and MSHA to more
effectively evaluate the performance of dust controls and the adequacy
and effectiveness of operators' approved plans.
C. Section 90.3 Part 90 Option; Notice of Eligibility; Exercise of
Option
For the same reason stated in proposed Sec. 90.1, proposed Sec.
90.3(a) would be revised to extend to surface coal miners the option to
work in an area of a mine where the average concentration of respirable
dust in the mine atmosphere during each shift is continuously
maintained at or below ``the applicable standard'' as specified in
proposed Sec. 90.100, which is discussed elsewhere in the preamble.
The proposal would also include a conforming change. The proposed
language, ``the applicable standard,'' would replace the existing
language, ``1.0 milligrams per cubic meter of air'' to reflect that the
respirable dust standard would change from 1.0 mg/m\3\ to 0.5 mg/m\3\
after a six-month phase-in period.
The proposal would make conforming changes to proposed Sec.
90.3(d) and (e) to extend the part 90 transfer option to surface coal
miners.
D. Section 90.100 Respirable Dust Standard
Proposed Sec. 90.100 would reduce the respirable dust standard
from 1.0 mg/m\3\ to 0.5 mg/m\3\ for part 90 miners on [date six months
after the effective date of the final rule]. The proposed lower limit
of 0.5 mg/m\3\ is 50% of the proposed 1.0 mg/m\3\ respirable dust
standard in proposed Sec. 70.100(a)(4) and 71.100(d), and consistent
with Sec. 70.100(b)(2). MSHA has included this conforming change to
prevent the progression of pneumoconiosis. Miners with evidence of
pneumoconiosis have a higher risk of advancing to a more serious
condition than do other miners if they continue to be exposed to dust
(Antao, VC et al., 2005; Lee, HS et al., 2001; Castranova, V and
Vallyathan, V, 2000; Heppleston, AG, 1988; Ashford, JR, et al., 1965).
MSHA's QRA shows that, at a standard of 1.0 mg/m\3\, there is a
residual risk to miners. Reducing the concentration limit for part 90
miners continues the Agency's regulatory program for providing
necessary protection for these miners. MSHA solicits comment on the
proposed phase-in period for lowering the respirable dust limit and
requests that a detailed rationale accompany any comment or
recommendation that is submitted.
E. Section 90.101 Respirable Dust Standard When Quartz is Present
The proposed rule would revise the respirable dust standard for
part 90 miners when quartz is present in coal mines. The rationale for
revising Sec. 90.101 is identical to proposed Sec. 70.101, discussed
elsewhere in this preamble, however, the language in proposed Sec.
90.101(b) has been tailored to apply to part 90 miners.
F. Section 90.102 Transfer; Notice
The proposed rule would revise existing Sec. 90.102(a) to include
an exception to the part 90 miner transfer requirements. Under the
existing standard, an operator must transfer the miner to an existing
position at the same coal mine on the same shift or shift rotation on
which the miner was employed immediately before the transfer. Under the
proposed rule, transfer requirements would not apply when a part 90
miner is working in an area that meets the applicable part 90
respirable dust standard, but circumstances such as reductions in
workforce or changes in operational methods require a change in the
miner's job or shift assignment. The proposed exception would
accommodate the need for operators to reassign part 90 miners when
unforeseen circumstances and unexpected mine conditions arise. MSHA
believes that the proposed exception provides operators some necessary
flexibility with respect to the assignment of a part 90 miner. The
proposed rule would retain the provision that the operator may transfer
a part 90 miner to a different coal mine, a newly-created position, or
a position on a different shift or shift rotation if the miner agrees
in writing to the transfer. Proposed Sec. 90.102(a) is consistent with
the Agency's policy and is identical to the 2003 proposed Plan
Verification rule. The Agency received no comments specific to these
provisions.
G. Section 90.103 Compensation
Proposed Sec. 90.103(c) is new and would provide that the existing
provisions in Sec. Sec. 90.103(a) and (b), concerning compensation for
a part 90 miner, do not apply when a part 90 miner initiates and
accepts a change in work assignment for reasons of job preference. This
proposed provision is consistent with MSHA's longstanding policy of not
applying the part 90 miner compensation provisions under circumstances
where, once a miner has been placed in a position that complies with
the provisions in part 90, the part 90 miner on his own initiative
applies for and accepts another job in a work area with an average
respirable dust concentration at or below the applicable part 90
respirable dust standard.
The proposal is also consistent with Section 101(a)(7) of the Mine
Act which provides for compensation at the same rate of pay for miners
transferred as a result of exposure to respirable dust, but not as a
result of a miner-initiated transfer based on job preference. As an
example: A miner exercised the part 90 option when the miner's job paid
$20 per hour. If the operator keeps the part 90 miner in the same work
position because compliance with the applicable part 90 respirable dust
standard is maintained, or if the operator transfers the miner to a new
work position to achieve compliance with part 90, the miner cannot be
paid less than $20 per hour--the amount paid immediately before
exercising the option. However, once the operator has placed the miner
in a position that complies with the provisions of part 90, if the
miner prefers a different job and initiates and accepts a job change
that only pays $17
[[Page 64453]]
per hour, the miner would receive $17 per hour in the new position.
Under the proposal, a miner-initiated job change to a position that
is at or below the part 90 respirable dust standard would not
constitute a waiver of part 90 rights. In the new job, the miner would
retain part 90 status and all other requirements of part 90 continue in
effect, including the operator's obligations to continuously maintain
the part 90 respirable dust standard and to give MSHA notice whenever
the miner's work assignment changes or lasts longer than one shift.
Proposed Sec. 90.103(c) is identical to the 2003 proposal on Plan
Verification. The Agency did not receive any comments specific to these
provisions.
The proposed rule would redesignate: existing Sec. 90.103(c) as
proposed Sec. 90.103(d); existing Sec. 90.103(d) as proposed Sec.
90.103(e); existing Sec. 90.103(e) as proposed Sec. 90.103(f); and
existing Sec. 90.103(f) as proposed Sec. 90.103(g.) No other changes
are proposed for these provisions.
H. Section 90.104 Waiver of Rights; Re-exercise of Option
Proposed Sec. 90.104(a)(2) and (a)(3) would revise the existing
requirements to include conforming changes to part 90 on the respirable
dust standard and respirable dust standard when quartz is present.
Proposed paragraphs (a)(2) and (a)(3) would replace both the ``1.0
milligrams per cubic meter of air'' and ``the respirable dust standard
established by Sec. 90.101 (Respirable dust standard when quartz is
present)'' with the term ``applicable standard.'' MSHA proposed
identical revisions in 2003 under the proposed rule on Plan
Verification and received no comments on the proposal.
I. Section 90.201 Sampling; General and Technical Requirements
The proposed rule would revise operator sampling requirements in
existing Sec. 90.201 and would phase in the use of CPDMs to collect
respirable dust samples in the working environment of each part 90
miner.
Under the proposed rule, Sec. 90.201(a) would require the operator
to use the CMDPSU to take respirable dust samples in the working
environment of each part 90 miner until replaced by the CPDM. On [date
12 months after the effective date of the final rule], operators would
be required to replace the CMDPSU with the CPDM to sample part 90
miners, unless notified by the Secretary. The operator would be allowed
to start using the CPDM anytime during the 12-month phase-in period.
Proposed Sec. 90.201(a) is consistent with proposed Sec. 70.201(a);
however, the language in proposed Sec. 90.201(a) would be tailored to
apply to part 90 miners. The rationale for the proposed provision is
the same as that in proposed Sec. 70.201(a), which is discussed
elsewhere in the preamble.
Proposed paragraph (b) would retain the existing requirement that
sampling devices be worn or carried directly to and from each part 90
miner's position. It would revise the existing standard to require that
a CPDM be worn at all times if it is used for sampling. It would also
revise the existing standard to require that sampling devices be
operated portal to portal, and be operational during the part 90
miner's entire shift, even when the shift exceeds 8 hours (extended
shift). This would include the time spent performing normal work duties
and while traveling to and from the assigned work location. Proposed
Sec. 90.201(b) is consistent with proposed Sec. 70.201(e); however,
the language in proposed Sec. 90.201(b) would be tailored to apply to
part 90 miners. The rationale for the proposed provision is the same as
that in proposed Sec. 70.201(e), which is discussed elsewhere in the
preamble.
Proposed paragraph (b)(1) is new and would address work shifts
longer than 12 hours. It would require that when using a CMPDSU and the
work shift to be sampled is longer than 12 hours, the operator would
have to switch-out the unit's sampling pump prior to the 13th hour of
operation. Proposed Sec. 90.201(b)(1) is the same as proposed Sec.
70.201(e)(1). Proposed paragraph (b)(2) is new and would add a similar
requirement to address work shifts longer than 12 hours when operators
use CPDMs. It would require the operator to switch-out the CPDM with a
fully charged device prior to the 13th-hour of operation. Proposed
paragraph (b)(2) is the same as proposed Sec. 70.201(e)(2). The
rationale for proposed Sec. 90.201(b)(1) and (b)(2) is discussed
elsewhere in the preamble related to proposed Sec. 70.201(e)(1) and
(e)(2).
Proposed paragraphs (c)(1) through (c)(3), redesignated from
existing (f)(1) through (f)(3) retain the existing requirements.
Proposed paragraphs (d)(1) through (d)(4) are new and would
require: the mine operator to use one control filter for each shift of
sampling when a CMDPSU is used; each control filter to have the same
pre-weight date (noted on the dust data card) as the filters used for
sampling; each control filter to remain plugged at all times; each
control filter to be exposed to the same time, temperature, and
handling conditions as the filter used for sampling, and that each
control filter be kept together with the exposed samples after
sampling. Proposed Sec. 90.201(d)(1) through (d)(4) are identical to
proposed Sec. 70.201(f)(1) through (f)(4) and the rationale is
discussed elsewhere in the preamble related to proposed Sec.
70.201(f).
Proposed paragraph (e) would make a minor revision to the existing
standard to clarify that it would apply when a CMDPSU is used to take
respirable dust samples.
The proposed rule would revise and move existing Sec. 90.201(d) to
proposed Sec. 90.208(e), which would apply to operators who use a
CMDPSU for sampling the work environment of part 90 miners. Proposed
Sec. 90.208(e) is discussed elsewhere in the preamble.
Proposed paragraph (f) is new and would require the operator to
make a record showing the length of each shift for each part 90 miner,
retain the records for at least six months, and make them available for
inspection by authorized representatives of the Secretary or submitted
to the District Manager when requested in writing. Operators would need
to know the length of the work shift to determine the equivalent
concentration. MSHA would use these records to verify that operators
are accurately recording the normal work shift lengths so that miners
are not being overexposed.
Proposed paragraph (g), redesignated from existing paragraph (c),
would be revised to require that, upon request from the District
Manager, the operator would submit the date and time any respirable
dust sampling would begin. This information would have to be submitted
to the District Manager at least 48 hours prior to scheduled sampling.
The proposed 48-hour notification requirement would provide the Agency
the opportunity to observe and monitor operator sampling which would
ensure that both operating conditions and sampling requirements are
met.
Proposed paragraph (h) is new and would require mine operators
using CPDMs to provide training to all part 90 miners. Proposed Sec.
90.201(h) is the same as proposed Sec. 70.201(j) and the rationale is
discussed elsewhere in the preamble related to proposed Sec.
70.201(j). In addition, proposed (h)(1)-(5), which are identical to
proposed Sec. 70.201(j)(1)-(5), would establish the CPDM training that
would be required. The rationale, discussed elsewhere in the preamble,
is the same for both.
Proposed paragraph (i) is new and would require mine operators to
maintain a record of training at the mine site for two years following
completion of training. MSHA believes it is important to retain these
records to
[[Page 64454]]
verify that the required training has been provided. Proposed paragraph
(i) would also permit a mine operator to maintain the record at another
location as long as the record could be immediately accessed
electronically from the mine site. Finally, proposed paragraph (i)
would require that upon request by an authorized representative of the
Secretary or Secretary of HHS, the mine operator would be required to
promptly provide access to any such training record. Proposed Sec.
90.201(i) is the same as proposed Sec. 70.201(k), except tailored for
part 90 miners, and the rationale is discussed elsewhere in the
preamble related to proposed Sec. 70.201(k).
J. Section 90.202 Certified Person; Sampling and Sec. 90.203 Certified
Person; Maintenance and Calibration
Proposed Sec. Sec. 90.202 and 90.203 would be identical to
proposed Sec. Sec. 70.202 and 70.203, discussed elsewhere in this
preamble.
K. Section 90.204 Approved Sampling Devices; Maintenance and
Calibration
Proposed Sec. 90.204 would be identical to proposed Sec. 70.204,
discussed elsewhere in this preamble.
L. Section 90.205 Approved Sampling Devices; Operation; Air Flowrate
Proposed Sec. 90.205 would be identical to proposed Sec. 70.205,
discussed elsewhere in this preamble.
M. Section 90.206 CPDM Performance Plan
Proposed Sec. 90.206 would be identical to proposed Sec. 70.206,
discussed elsewhere in this preamble, with a few exceptions. Proposed
Sec. 90.206(c)(1) would require the CPDM Performance Plan to include
the specific part 90 miner who will be sampled, identified by the
unique 8-digit MSHA Individual Identification Number (MIIN) obtained
from the Agency.
Also, unlike Sec. Sec. 70.206(a)(1)-(a)(2) and (a)(4) and
71.206(a)(1)-(a)(2) and (a)(4), proposed Sec. 90.206(a) would not
include requirements that miners' representatives be notified of
proposed Plans or plan revisions for any part 90 miner, be given copies
of plans or plan revisions for affected part 90 miners, or be allowed
to submit comments on such plans or revisions to the District Manager.
Similarly, proposed Sec. 90.206 does not include requirements in
proposed Sec. Sec. 70.206(a)(3) and (c)(3), and 71.206(a)(3) and
(c)(3), that would require proposed and approved Plans or revisions to
be posted on the mine bulletin board. Instead, proposed Sec. Sec.
90.206(d) would require a copy of the approved Plan for the part 90
miner or revisions be provided to the affected part 90 miner. It would
also prohibit the posting of the approved Plan or revisions on the mine
bulletin board. MSHA believes that the proposed provisions and proposed
prohibition against posting approved Plans or revisions on the bulletin
board are consistent with existing requirements and would help to
prevent the unwarranted disclosure of a part 90 miner's identity.
N. Section 90.207 Exercise of Option or Transfer Sampling
Proposed Sec. 90.207 would remain essentially unchanged from the
existing standard since only nonsubstantive changes are proposed.
The proposal would change the title to distinguish it from
compliance sampling under proposed Sec. 90.208.
The proposed language in paragraph (a)(2), ``the applicable
standard,'' would replace the existing language, ``1.0 milligrams per
cubic meter of air or the respirable dust standard established by Sec.
90.101 (Respirable dust standard when quartz is present).'' This
proposed revision reflects that the respirable dust standard would
change from 1.0 mg/m\3\ to 0.5 mg/m\3\ on [date 6 months after the
effective date of the final rule] and that a reduced standard could
apply due to the presence of quartz.
Other minor editorial changes would be made.
O. Section 90.208 Compliance Sampling; Procedures for Sampling With
CMDPSUs
Proposed Sec. 90.208 would revise the existing sampling
requirements for part 90 miners. The proposal would change the title to
distinguish it from proposed Sec. 90.209, which would apply to
operators who use a CPDM to sample part 90 miners.
Proposed Sec. 90.208(a) would revise existing Sec. 90.208 and
require operators who use CMDPSUs to take five valid representative
samples during each quarterly period from the environment of the part
90 miner while performing normal work duties. The quarterly periods
would be: (1) January 1-March 31; (2) April 1-June 30; (3) July 1-
September 30; and (4) October 1-December 31. The proposal would also
require that the samples be collected on consecutive work days. The
proposed rule would replace the bimonthly sampling period under the
existing standard with a quarterly sampling period. Also, the proposal
would increase sampling from one sample during a bimonthly period under
the existing standard to five samples collected on consecutive work
days during a quarterly period. Sampling part 90 miners during five
consecutive work days on a quarterly basis would provide a better
representation of typical dust conditions to which part 90 miners are
exposed and, therefore, would provide greater protection for miners.
In addition, proposed paragraph (a) would require that the samples
be ``representative samples'' and would no longer include the term
``respirable dust samples.'' The term representative samples is new and
is discussed elsewhere in the preamble in Sec. 90.2 related to
definitions. The proposed change to include representative samples
would offer greater protection for miners.
Proposed Sec. 90.208(b), (b)(1), and (b)(2) would apply when the
respirable dust standard under Sec. 90.101 has been changed due to the
presence of quartz. Proposed Sec. 90.208(b) is new and would require
that when the applicable dust standard is changed in accordance with
proposed Sec. 90.101 (Respirable dust standard when quartz is
present), the new applicable standard would be effective on the first
shift on which the part 90 miner is performing normal work duties
following receipt of the notification of such change from MSHA.
Proposed Sec. 90.208(b)(1) is derived from existing Sec. 90.208(b).
Under the proposal, if all samples from the most recent quarterly
sampling period do not exceed the new applicable standard, the operator
would begin sampling of the part 90 miner on the first shift on which
the miner is performing normal work duties during the next quarterly
period following notification from MSHA of the change in the applicable
standard. Proposed paragraph (b)(2) is new and would require that if
any sample from the most recent quarterly sampling period exceeds the
new applicable standard, the operator must make necessary adjustments
to the dust control parameters within three days and collect samples
from the affected part 90 miner on consecutive work days until five
valid representative samples are collected. The collected samples would
be treated as normal quarterly samples. Proposed Sec. 90.208(b),
(b)(1), and (b)(2) are consistent with proposed Sec. 70.207(c),
(c)(1), and (c)(2). The rationale for proposed Sec. 90.208(b), (b)(1),
and (b)(2) is the same as that for Sec. 70.207(c), (c)(1), and (c)(2),
which is discussed elsewhere in the preamble.
Proposed Sec. 90.208(c) is new and would require that no valid
single-shift equivalent concentration shall meet or exceed the ECV that
corresponds to the applicable standard. The ECVs are listed in Table
90-1. Proposed Sec. 90.208(c) is
[[Page 64455]]
consistent with proposed Sec. 70.207(e). A discussion on the proposed
use of ECVs and rationale is addressed elsewhere in the preamble under
proposed Sec. 70.207(e).
The proposed rule would redesignate existing Sec. 90.208(c) as
proposed Sec. 90.208(d). Proposed Sec. 90.208(d) would require that
upon issuance of a citation for a violation of the applicable standard,
paragraphs (a) (quarterly sampling) and (b)(2) (sampling when a
respirable dust standard is changed due to quartz) would not apply to
the part 90 miner until the violation is abated in accordance with
proposed paragraph (e). Proposed Sec. 90.208(d) is consistent with
proposed Sec. 70.207(f). The rationale is the same as that for
proposed Sec. 70.207(f) discussed elsewhere in the preamble. The
proposal would make conforming, nonsubstantive revisions to the
existing standard. Proposed Sec. 90.208(d) would replace ``Sec.
90.100 (Respirable dust standard) or Sec. 90.101 (Respirable dust
standard when quartz is present)'' with ``the applicable standard'' to
be consistent with other proposed part 70, 71, and 90 provisions. The
proposal would also replace ``Sec. 90.201(d)'' with ``paragraph (e)''
since proposed Sec. 90.208(e) would address the operators'
requirements to abate violations of the respirable dust standard for
part 90 miners.
Proposed Sec. 90.208(e), derived from existing Sec. 90.201(d),
would require the operator to take the following actions during the
time for abatement fixed in a citation for violation of the applicable
standard. Proposed paragraph (e)(1) would require the operator to make
respirators available to the affected part 90 miner in accordance with
proposed Sec. 72.700. Proposed paragraph (e)(2) would require the
operator to submit, to the District Manager for approval, proposed
corrective actions to lower the concentration of respirable dust to
within the applicable standard. If the corrective action involves
reducing the respirable dust levels in the work environment of the part
90 miner, proposed paragraph (e)(2) would require the operator to
implement the proposed corrective actions after receipt of approval by
the District Manager, and then sample the affected part 90 miner until
five valid representative samples are taken.
If the corrective action taken by the operator involves
transferring the part 90 miner to another work position in the mine to
meet the applicable standard, proposed paragraph (e)(2)(ii) would
require the operator to comply with proposed Sec. 90.102 and then
sample the affected miner in accordance with proposed Sec. 90.207(a).
Proposed Sec. 90.208(e)(1) and (e)(2)(i) are consistent with proposed
Sec. Sec. 70.207(g)(1)-(g)(3) and 70.209(e)(1)-(e)(3). The rationale
for proposed Sec. 90.208(e)(1) and (e)(2)(i) is identical to that in
proposed Sec. 70.207(g), which discussed elsewhere in this preamble.
Proposed Sec. 90.208(e)(2)(ii) would clarify that other part 90
requirements apply when the applicable standard for a part 90 miner is
exceeded and the operator transfers a part 90 miner to meet the
standard.
Proposed Sec. 90.208(f), derived from existing Sec. 90.300(a), is
new and would establish that a citation for violation of an applicable
standard will be terminated by MSHA when: (1) the equivalent
concentration of each of the five valid operator abatement samples is
at or below the applicable standard; and (2) the operator submits a
proposed dust control plan for the part 90 miner or proposed changes to
the approved dust control plan as prescribed in proposed Sec. 90.300
to the District Manager for approval within 15 calendar days after
sampling results are received from MSHA indicating the concentration
has been reduced to or below the applicable standard. The proposal also
requires that the revised parameters must reflect the control measures
used to maintain the concentration of respirable dust to or below the
applicable standard. The proposed provision is consistent with proposed
Sec. Sec. 70.207(h) and 71.207(l). MSHA believes that this proposal
would assure that dust control parameters in the approved dust control
plan for that part 90 miner are appropriate and demonstrate that they
effectively reduce the miner's respirable dust exposure.
Proposed Sec. 90.208(g) is new and would require that when the
equivalent concentration of one or more valid samples collected by the
operator under this section exceeds the applicable standard but is less
than the ECV that corresponds to the applicable standard in Table 90-1,
the operator would be required to: (1) Make approved respirators
available to affected miners in accordance with proposed Sec. 72.700;
(2) take corrective action to lower the respirable dust concentration
to or below the applicable standard; and (3) record the corrective
actions taken in the same manner as the records for hazardous
conditions required by existing Sec. 75.363. This proposed provision
and its rationale are identical to proposed Sec. 70.207(i).
P. Section 90.209 Compliance Sampling; Procedures for Sampling With
CPDMs
Proposed Sec. 90.209 is new and would provide requirements on
sampling the working environment of part 90 miners when using a CPDM.
It addresses: frequency of sampling; actions to be taken when any end-
of-shift concentration exceeds the applicable standard; actions to be
taken when overexposures occur; and requirements when transferring a
part 90 miner as part of the operator's corrective actions.
Proposed Sec. 90.209(a) would require operators who use CPDMs to
sample the working environment of the part 90 miner during each shift,
7 days per week (Sunday through Saturday), 52 weeks per year. The
proposal is consistent with proposed Sec. 70.208(a)(1). MSHA believes
that continuous monitoring of part 90 miners on every shift during the
year is the most effective method of reducing their exposure to
respirable coal mine dust and preventing any further progression of
black lung disease. Both operators and part 90 miners would be aware
continually of the dust conditions in the working environment and the
effectiveness of dust controls.
Proposed Sec. 90.209(b) would require that when the applicable
dust standard is changed in accordance with proposed Sec. 90.101
(Respirable dust standard when quartz is present), the new applicable
standard would become effective on the first shift that the part 90
miner is performing normal work duties following receipt of the
notification of the change from MSHA. Proposed Sec. 90.209(b) is
identical to proposed Sec. 90.208(b) and consistent with proposed
Sec. Sec. 70.207(c) and 70.208(c). The proposal would protect part 90
miners by ensuring prompt implementation of the reduced standard when
there is high quartz exposure. The proposed provision is consistent
with Agency policy and would provide increased health protection for
part 90 miners.
Proposed Sec. 90.209(c) would require that for operators who use a
CPDM, no valid end-of-shift equivalent concentration shall meet or
exceed the ECV that corresponds to the applicable standard. The ECVs
are listed in Table 90-2. Proposed Sec. 90.209(c) is consistent with
proposed Sec. Sec. 70.207(e) and 70.208(d). As discussed elsewhere in
the preamble under proposed Sec. Sec. 70.207(e) and 70.208(d), and in
Appendix A, ECVs are calculated to ensure that citations are issued
only when a single sample measurement demonstrates, with at least 95-
percent confidence, that the applicable dust standard has been
exceeded. The rationale for proposed Sec. 90.209(c) is the same as
that in proposed Sec. 70.207(e), which is discussed elsewhere in the
preamble.
[[Page 64456]]
Proposed Sec. 90.209(d) would require that no weekly accumulated
exposure (WAE) shall exceed the weekly permissible accumulated exposure
(WPAE). The proposed terms ``weekly accumulated exposure'' and ``weekly
permissible accumulated exposure'' are new and discussed elsewhere in
the preamble under the Sec. 90.2 definitions. For example, suppose a
CPDM reported an equivalent concentration of 1.0 mg/m\3\ for a part 90
miner who worked nine hours on Monday. Under the proposed definition of
WAE, this quantity would be multiplied by 8 hours, yielding an
accumulated exposure on Monday of 1.0 mg/m\3\ x 8 hours or 8.00 mg-hr/
m\3\. If the part 90 miner worked the rest of the week, including
Saturday, the exposure accumulated during each of the other five shifts
would be determined in the same manner. If the daily exposures
accumulated by the part 90 miner for the week were recorded as follows:
Monday--8.00 mg-hr/m\3\; Tuesday--6.32 mg-hr/m\3\; Wednesday--7.84 mg-
hr/m\3\; Thursday--6.80 mg-hr/m\3\; Friday--5.69 mg-hr/m\3\; Saturday--
4.16 mg-hr/m\3\, adding together the daily accumulated exposures yields
a WAE of 38.81 mg-hr/m\3\.
To continue, if the applicable standard for the part 90 miner is 1
mg/m\3\, this quantity would be multiplied by 40 hours, yielding a WPAE
of 40 mg-hr/m\3\ for the part 90 miner. Since the WAE for the part 90
miner is 38.81 mg-hr/m\3\, it would not exceed the WPAE of 40 mg-hr/
m\3\.
Proposed paragraph (d) would assure that the part 90 miner's
respirable dust exposure for the work week would be limited to a
calculated weekly permissible accumulated exposure for an equivalent
40-hour work week. This proposed paragraph is consistent with the NIOSH
Criteria Document, which recommended that respirable coal mine dust be
limited to 1 mg/m\3\ as a TWA concentration for up to 10 hr/day during
a 40-hour work week. Proposed Sec. 90.209(d) and its rationale are
identical to proposed Sec. 70.208(e), which is discussed elsewhere in
the preamble.
Proposed Sec. 90.209(e) would require the operator to take
actions, listed in proposed paragraphs (e)(1) through (e)(6), when a
valid end-of-shift equivalent concentration meets or exceeds the ECV
that corresponds to the applicable standard in Table 90-2, or a weekly
accumulated exposure exceeds the weekly permissible accumulated
exposure. The operator would be required to take the actions before the
part 90 miner's next work shift begins. Proposed Sec. 90.209(e) is
consistent with proposed Sec. 70.208(f); however, the language in
proposed Sec. 90.209(e) is tailored to apply to part 90 miners.
Proposed paragraph (e)(1) would require operators to make approved
respirators available to affected part 90 miners in accordance with
proposed Sec. 72.700. The proposal is consistent with existing Sec.
70.300, which requires the operator to make respiratory equipment
available to all persons exposed to excessive concentrations of
respirable dust. The rationale for this proposed provision is the same
as that for proposed Sec. Sec. 70.207(i)(1) and 70.208(f)(1) discussed
elsewhere in the preamble.
Proposed paragraph (e)(2) would require the operator to implement
corrective actions to assure compliance with the applicable standard on
the next and subsequent work shifts. Corrective actions would include,
for example, engineering or environmental controls that reduce the
level of respirable dust, or transferring the part 90 miner to another
position at the mine that is at or below the applicable standard. MSHA
believes that the proposal would improve protections for part 90
miners, since the operator would need to determine factors that may
have contributed to the overexposure and take corrective actions
beginning on the part 90 miner's next work shift.
Under proposed paragraph (e)(3), if the corrective actions involve
implementing dust control measures to lower the miner's respirable dust
to within the applicable standard, the operator must submit the
corrective actions as a proposed dust control plan, or proposed changes
to an approved plan, for the part 90 miner. The proposal would require
that the plan or plan changes be submitted as required in proposed
Sec. 90.300 to the District Manager for approval within 3 days of
determining that the applicable standard has been exceeded. The
rationale for proposed Sec. 90.209(e)(3) is the same as that in
proposed Sec. 70.208(f)(3), which is discussed elsewhere in the
preamble.
Proposed paragraph (e)(4) would require the operator to review the
adequacy of the approved CPDM Performance Plan in relation to the part
90 miner. It would require the operator to submit any plan revisions,
if needed, to the District Manager for approval. Plan revisions would
be required to be submitted within 7 calendar days after the operator
provides the end-of-shift equivalent concentration to the part 90
miner. Under the proposed rule, for example, if the applicable standard
is exceeded, the operator would review the adequacy of the CPDM
Performance Plan for the affected part 90 miner to assure that
sufficient actions are required to prevent respirable dust
concentrations from exceeding citable ECV levels and expose the miner
to excessive dust. The proposed provision is consistent with proposed
Sec. 70.208(f)(4). MSHA believes that requiring the operator to review
the CPDM plan would assist the operator in monitoring part 90 miners'
exposure to respirable coal mine dust and in verifying the adequacy of
the dust control parameters. In addition, like proposed Sec.
70.208(f)(4), MSHA believes a 7-calendar day period is a reasonable
amount of time for the operator to review and submit CPDM plan
revisions for approval.
Proposed paragraph (e)(5), which is identical to proposed Sec.
70.208(f)(5), would require the operator to record the reported
excessive dust condition as part of and in the same manner as the
records for hazardous conditions required by existing Sec. 75.363. The
proposal would require the record to include the following information:
(i) Date of sampling; (ii) length of the sampled shift; (iii) location
within the mine and the occupation where the sample was collected; (iv)
the end-of-shift equivalent concentration, or weekly accumulated
exposure and the weekly permissible accumulated exposure; and (v)
corrective action taken to reduce the concentration of respirable coal
mine dust to or below the applicable standard. The rationale for
proposed Sec. 90.209(e)(5) is the same as that for proposed Sec.
70.208(f)(5), which is discussed elsewhere in the preamble.
Proposed paragraph (e)(6) would require the operator to comply with
proposed Sec. Sec. 90.102(c) and 90.207(a) when an operator transfers
a part 90 miner to meet the applicable standard. MSHA believes that
transferring a part 90 miner is an acceptable method to meet the
applicable standard and protect the miner's health as long as the
operator complies with proposed Sec. 90.102(c) notice requirements and
proposed Sec. 90.207(a) sampling requirements.
Proposed Sec. 90.209(f) would require the operator to take
actions, listed in proposed paragraphs (f)(1) through (f)(4), when any
valid end-of-shift equivalent concentration exceeds the applicable
standard but is less than the ECV that corresponds to the applicable
standard in Table 90-2. Proposed Sec. 90.209(f)(1) through (f)(4),
like proposed Sec. 70.208(g)(1) through (g)(4), would require the
operator to make respirators available, implement corrective actions,
record the reported excessive dust conditions, and review the adequacy
of the CPDM Performance
[[Page 64457]]
Plan. MSHA believes that corrective action taken when the applicable
standard is exceeded would assure that respirable dust concentrations
do not get to citable ECV levels and the part 90 miner's exposure to
excessive dust is minimized.
Proposed Sec. 90.209(f)(1) and (f)(2) would require the operator
to make approved respirators available to the affected part 90 miners
and implement corrective actions. MSHA believes these proposed
requirements are necessary to prevent miners' overexposure to
respirable dust and would provide improved protection for miners. The
proposed provisions are consistent with proposed Sec. 90.209(e)(1) and
(e)(2) and proposed Sec. 70.208(g)(1) and (g)(2). The rationale for
this part 90 provision is the same as that for proposed Sec.
70.208(g)(1) and (2), which is discussed elsewhere in the preamble.
Proposed Sec. 90.209(f)(3), like proposed Sec. 90.209(e)(5) and
proposed Sec. 70.208(g)(3), would require the operator to record the
reported excessive dust condition as part of and in the same manner as
the records for hazardous conditions required by existing Sec. 75.363.
The proposal would require the record to include the following
information: (i) Date of sampling; (ii) length of the sampled shift;
(iii) location within the mine and the occupation where the sample was
collected; (iv) the end-of-shift equivalent concentration; and (v)
corrective action taken to reduce the concentration of respirable coal
mine dust to or below the applicable standard. Like other similar
proposed part 70 and 90 provisions, the record would provide useful
information for operators, miners, and MSHA to evaluate dust exposures,
whether such conditions are recurring, and the effectiveness of the
dust controls being used.
Proposed paragraph (f)(4) would require the operator to review the
adequacy of the approved CPDM Performance Plan applicable to part 90
miners. It would require the operator to submit any plan revisions, if
needed, to the District Manager for approval. Plan revisions would be
required to be submitted within 7 calendar days after the operator
provides the end-of-shift equivalent concentration to the part 90
miner. This proposed provision is consistent with proposed paragraph
(e)(4). The rationale for proposed Sec. 90.209(f)(4) is the same as
that for proposed Sec. 90.209(e)(4).
Q. Section 90.210 Respirable Dust Samples; Transmission by Operator
Proposed Sec. 90.210, redesignated from existing Sec. 90.209,
would revise requirements for the operator to transmit sampling
information collected by either a CMDPSU or CPDM. It would revise
paragraphs (a) and (c) and add a new paragraph (f); paragraphs (b), (d)
and (e) would remain the same.
Proposed paragraph (a) would make a non-substantive change to
clarify that it only applies to operators' transmission of samples
collected with a CMDPSU.
Proposed paragraph (c) would retain the existing requirement that
only persons certified in sampling complete the dust data card provided
by the manufacturer of the filter cassette. It would be revised to
require that each dust data card be signed by the certified person who
actually performed the sampling shift examinations. Consistent with
MSHA's existing policy, the proposal would also require that the
person's signature on the data card include that person's MSHA
Individual Identification Number (MIIN). Proposed Sec. 90.210(c) is
identical to proposed Sec. 70.210(c), and the rationale is discussed
elsewhere in the preamble related to proposed Sec. 70.210(c).
Proposed paragraph (f) is new and would apply when operators use
CPDMs to sample. It would require that, within 12 hours after the end
of the last sampling shift of the work week, a designated mine official
must validate, certify, and transmit electronically to MSHA all daily
sample and error data file information collected during the previous
calendar week (Sunday through Saturday) and stored in the CPDM. It
would also require the operator to maintain all CPDM data files
transmitted to MSHA for at least 12 months. Proposed Sec. 90.210(f) is
identical to proposed Sec. 70.210(f), and the rationale is discussed
elsewhere in the preamble related to proposed Sec. 70.210(f).
R. Section 90.211 Respirable Dust Samples; Report to Operator
Proposed Sec. 90.211, redesignated from existing Sec. 90.210,
would address data contained in MSHA's report of respirable dust
samples provided to operators. It would also address requirements for
the operators' report provided to each part 90 miner. Proposed
paragraphs (a)(1), (a)(5), (a)(6), and (b) would remain the same.
Proposed paragraph (a) would include minor editorial changes.
Proposed paragraph (a)(2) would replace the language ``mechanized
mining unit'' with ``locations'' to assure that all areas where part 90
miners work would be included.
Proposed paragraphs (a)(3) and (a)(4) would include conforming
changes by adding that the concentration of respirable dust be
expressed ``as an equivalent concentration.'' The changes are
consistent with other proposed provisions that specify that the
concentration of respirable coal mine dust is converted to and
expressed as an 8-hour equivalent concentration.
Proposed paragraph (a)(7) would revise the existing requirement to
specify that MSHA's report will contain the part 90 miner's MSHA
Individual Identification Number (MIIN) instead of a social security
number. To assure privacy and to comport with Federal requirements
related to safeguarding personal-identifiable information, MSHA has
eliminated the use of social security numbers on its documents.
Proposed paragraph (c) is new and would apply to operators who use
a CPDM. It would require the designated mine official to validate,
certify, and provide certain sampling information to each part 90
miner. Proposed paragraph (c)(1) would require the designated mine
official to provide each part 90 miner with a report of the daily end-
of-shift sampling results within 1 hour of the part 90 miner's next
work shift. The daily report must include the: mine identification
number; location in the mine from which samples were taken; respirable
dust concentration expressed as an equivalent concentration for each
valid sample; total amount of exposure accumulated by the part 90
miner; occupation code; reason for voiding any sample; the part 90
miner's MIIN; and the shift length. This information, similar to that
required under existing Sec. 90.210 would provide miners with sampling
and exposure information for the shift. Under the proposal, the
District Manager could require any other information, such as the
duties performed during the shift (i.e., shoveling the belt or building
stoppings), or the special purpose for sampling (certifying the part 90
miner in a new occupation or evaluating a new work location).
Proposed paragraph (c)(2) would require the designated mine
official to provide to the part 90 miner the weekly accumulated
exposure (WAE) and the weekly permissible accumulated exposure (WPAE)
within 1 hour after the start of the part 90 miner's next work shift of
a new work week (Sunday through Saturday). Providing part 90 miners
with a copy of the WAE and WPAE would inform them of the total amount
of coal mine dust exposure accumulated during the work week, as
[[Page 64458]]
well as the maximum amount of accumulated exposure to coal mine dust
permitted to be received during a normal work week. Providing these
data would assure that part 90 miners are informed of their weekly
exposure levels so that they can take a proactive role in their health
protection.
Proposed paragraph (d) is new and would not allow the operator to
post part 90 sampling data on the mine bulletin board. This proposal is
consistent with existing Sec. 90.210(b).
S. Section 90.212 Status Change Reports
Proposed Sec. 90.212(a), redesignated from existing Sec. 90.220,
would provide operators the option of reporting to MSHA changes in the
status of a part 90 miner electronically instead of in writing.
Proposed paragraph (b) is new and would require the designated mine
official to report status changes that affect the operational readiness
of any CPDM within 24 hours after the status change has occurred.
Examples could include a malfunction or breakdown of a CPDM that is
needed for sampling, or failure to have a spare CPDM available for
required sampling. Since MSHA would rely on data provided by the CPDM
to evaluate dust controls and to assure that miners are not exposed to
excessive levels of respirable coal mine dust, the Agency would need to
be informed of any circumstances that would affect the operational
readiness of CPDMs.
T. Section 90.300 Respirable Dust Control Plan; Filing Requirements
Proposed Sec. 90.300 would address requirements for filing a dust
control plan for a part 90 miner. MSHA is proposing to revise Sec.
90.300(a) and 90.300(b)(2) and (b)(3); no changes are proposed for
Sec. 90.300(b)(1) or (b)(4).
Proposed Sec. 90.300(a) would require that the operator submit a
written respirable dust control plan to the District Manager for a part
90 miner identified in a citation and that the plan be adequate to
continuously maintain respirable dust within the applicable standard
for the part 90 miner. The proposed change ``applicable standard''
would replace ``permissible concentration'' in existing Sec.
90.300(a). MSHA's rationale for proposing this change is the same as
for proposed Sec. 71.300(a), i.e., to reflect the Agency's intent that
the dust control plan must be sufficient to maintain dust levels at or
below the applicable standard to ensure that respirable dust
concentrations do not get to ECV levels. This would assure improved
protection for miners.
The proposed rule would delete language in existing Sec. 90.300(a)
that requires submission of a respirable dust control plan for the part
90 miner within 15 calendar days after termination of a citation for
violation of Sec. 90.100 or Sec. 90.101. Instead proposed Sec.
90.300(a) would require the plan to be submitted ``As required by Sec.
90.208(f) and Sec. 90.209(e)(3).'' Both referenced sections, Sec.
90.208(f) and Sec. 90.209(e)(3), are discussed elsewhere in the
preamble and specify the timeframes for operators to submit a
respirable dust control plan, or proposed changes to an approved plan,
when a CMDPSU or a CPDM is used.
Proposed Sec. 90.300(b) would address the information that must be
included in the dust control plan for a part 90 miner and would remain
essentially unchanged from the existing requirements. Proposed Sec.
90.300(b)(2) would revise the existing standard to require the dust
control plan to include the name and MSHA Individual Identification
Number (MIIN) of the part 90 miner instead of the part 90 miner's
social security number as required by the existing standard. To assure
privacy and to comport with Federal requirements related to
safeguarding personal identifiable information, MSHA has eliminated the
use of social security numbers on it documents. This requirement is
consistent with MSHA's Program Policy Letter No. P08-III-1 (April 21,
2008). Proposed Sec. 90.300(b)(3) would require the dust control plan
include a detailed description of the specific respirable dust control
measures used to continuously maintain concentrations of respirable
coal mine dust at or below the applicable standard. The proposal would
revise the existing standard, which requires a detailed description of
control measures used to ``abate violations'' of the respirable dust
standard. The proposed revision would clarify that the dust control
measures must be sufficient to continuously maintain dust levels at or
below the applicable standard and not overexpose part 90 miners. The
proposal would improve the health protections of part 90 miners.
U. Section 90.301 Respirable Dust Control Plan; Approval by District
Manager; Copy to Part 90 Miner
Proposed Sec. 90.301 would address the criteria MSHA would use to
approve the dust control plan, as well as require operators' compliance
with plan provisions. Proposed Sec. 90.301(a)(1) and (b) would be
identical to proposed Sec. 70.301, discussed elsewhere in this
preamble. MSHA is not proposing revisions to paragraphs (a)(2), and (c)
through (e).
IV. Health Effects
A. Introduction
This section summarizes the health effects from occupational
exposure to respirable coal mine dust. MSHA discussed health effects in
its Notice of Proposed Rulemaking (NPRM) on Plan Verification, which
was published on March 6, 2003 (68 FR 10784). The literature referenced
in that document pre-dated 1999. This section discusses the more recent
literature dating from 1997 to mid-2009 with occasional references to
earlier papers.
Pulmonary disease in miners chronically exposed to coal mine dust
consists of interstitial and obstructive diseases. Miners develop Coal
Workers' Pneumoconiosis (CWP) or chronic obstructive pulmonary disease
(COPD). There are no specific treatments to cure pneumoconiosis or
COPD. These chronic effects may progress even after miners are no
longer exposed to coal dust resulting in increased disability and
death. Other complications may follow, such as pulmonary and cardiac
failure, that result in total disability and premature death.
Reduction of coal mine dust exposure is the only effective way to
prevent either CWP or COPD. Screening and surveillance programs detect
trends and clusters of disease occurrences and allow secondary
preventive intervention to slow the rate of progression in individual
miners. Data from screening and surveillance programs provide estimates
of the prevalence of occupational respiratory disease among working
coal miners.
At the existing standard of 2.0 mg/m \3\, cases of CWP and COPD
continue to occur. In recent years, the prevalence of CWP has increased
among experienced miners, and in some cases, CWP has progressed rapidly
to PMF. The persistence of disease requires that additional action be
taken to reduce coal mine dust exposures. The proposed requirements
would result in a further reduction in occupational pulmonary disease,
disability, and premature mortality in coal miners.
B. Hazard Identification
1. Agent: Coal Mine Dust
Coal may be classified on the basis of its type, grade, and rank.
The type of coal is based on the plant material (e.g., lignin,
cellulose) from which it originated. The grade of coal refers to its
chemical purity. Although coal is largely carbon, it may also contain
other elements such as hydrogen, oxygen,
[[Page 64459]]
nitrogen, and sulfur. Coal rank reflects the stage the coal has reached
on the coalification path (i.e., the processes involved in the
historical transformation of plants to form peat, lignite, sub-
bituminous coal, bituminous coal, and anthracite). High rank ``hard''
coal refers to coal with a higher carbon content (e.g., 90-95%) than
``soft'' coal (e.g., 65-75%). In addition to hardness, coal rank refers
to its fixed carbon content, down to 65%, and then by its heating value
and amount of volatile matter. The most commonly described coal ranks
include lignite (low rank), bituminous coal (medium rank), and
anthracite (high rank) (68 FR 10784). The inorganic components of coal
include phyllosilicates, quartz, carbonates, and sulfates. Coal
deposits also contain metals, mostly iron and aluminum and trace
amounts of arsenic, nickel, zinc, cadmium, cobalt, mercury, beryllium,
and copper (Huang et al., 2005). The relative toxicity of coal
increases with its rank.
2. Physical State: Respirable Coal Mine Dust
Dusts are solid particles suspended in the air. Coal dust may be
freshly generated or may be re-suspended from surfaces on which it is
deposited in mines. Dust particles have an irregular shape and a wide
range of sizes. Coal mine dust may be inhaled by miners, and some of
the smaller respirable particles are deposited, some are cleared, and
the remainder is retained in their lungs where it can initiate or
advance the disease process.
Coal mine dust particles are insoluble in water which is important
biologically and physiologically. Soluble dusts can be absorbed into
the blood stream but insoluble dusts may remain in the lungs for
prolonged periods of time resulting in a variety of cellular responses
that could lead to pulmonary disease (68 FR 10784).
3. Biological Action: Respirable Coal Mine Dust
Coal mine dust has a particle size distribution that typically
ranges between 1 and 100 micrometers ([micro]m) in diameter (note: 1
[micro]m = [\1/1,000,000\] meter). The size of the coal particles
determines how deeply into the respiratory tract they penetrate (ACGIH,
1999; AIHA, 1997). Dusts that are small enough to penetrate to the
alveolar region are called respirable dusts. They range in size up to
10 or even 20 [mu]m in diameter but most respirable particles (68 FR
10784) are approximately 1-2 [micro]m in diameter.
Because dust in this size range is responsible for disease, it is
the fraction that is measured in the mine environment. The particles
collected with an approved sampling device in accordance with 30 CFR
part 74 (Coal Mine Dust Sampling Devices) approximate that portion of
the dust which may be deposited in the lungs (68 FR 10784, 75 FR
17512).
Respirable dust particles are deposited but, as part of the lung's
defense mechanism, most particles are cleared. Within the upper
airways, hair-like projections called cilia line the airways and are
covered by a thin layer of mucus. Cilia create waves to carry particles
toward the throat where they are swallowed, coughed up and spat out, or
sneezed out. This mechanism removes particles quickly, within hours or
days. In the deepest region of the lower airways, the alveolar region,
particles are cleared by pulmonary macrophages. These cells engulf and
carry particles to the ciliated airways or may remove them by way of
the blood or lymphatic system or by storing them in the spaces between
cells. This process, unlike the movement of the cilia, is much slower
and can take months or years. Thus, some particles may remain in the
alveolar region for a very long time and some are retained permanently.
Either alveolar clearance or ciliated clearance can be altered by
disease progression. It is the retention of coal mine dust in the
alveolar region that is the starting point for the coal macule (a
combination of coal dust and macrophages) and CWP (Kuempel et al.
2001a, 2001b; Hatch and Gross, 1964; Oberdorster, 1995).
4. Mechanism of Action: Respirable Coal Mine Dust
The literature includes various mechanisms of damage, inflammation,
and lung scarring that explain the development and progression of
pulmonary disease induced by the inhalation and retention of coal mine
dust. These include direct cell destruction (i.e., cytotoxicity),
activation of oxidant production by alveolar macrophages, and
stimulation of inflammatory and fibrogenic factors (Attfield et al.,
2007).
a. Cytotoxicity
Coal mine dust exposure can cause direct cell membrane damage, as
indicated by hemolysis of red blood cells, lactate dehydrogenase
released from alveolar macrophages, and lipid peroxidation. Researchers
concluded that some coal dust-related toxicity could be related to
trace metal contaminants in the coal dust. For example, water leachate
of Pennsylvania coal is reportedly more potent in inhibiting in vitro
mammalian cell growth than Utah coal leachate. This potency difference
is, in part, related to the nickel content of these coal samples. There
are other studies that support bioavailable iron (BAI) as another
pathway through which oxidative injury is initiated in lung tissue.
Huang et al. (2005) found that iron present in coal can become
bioavailable by pyrite oxidation, which produces ferrous sulfate and
sulfuric acid. In different deposits of coal, calcite content could
neutralize the available acid and inhibit iron's bioavailability. This
could partially explain the different toxicity of coals seen not only
in the United States, but also in Europe and Asia (Huang et al., 2005;
Zhang and Huang, 2005; Zhang et al., 2002; McCunney et al., 2009).
Cell destruction is also related, in part, to the generation of
free radicals. Free radicals are highly reactive molecules or sub-
atomic particles that are created, for example, by crushing coal or
other rocks (Cohen et al., 2008). Anthracite coal generates more free
radicals than bituminous coal when fractured. This difference in
potency is reflected in the higher prevalence of CWP among anthracite
miners (Attfield et al., 2007).
Oxidative free radicals contribute to the development and
progression of pulmonary disease by at least three mechanisms. First,
oxidants react with a variety of pulmonary proteins. Second, these
oxidized proteins contribute to the inactivation of naturally occurring
chemicals such as [alpha]1-antitrypsin, which is important
in the development of emphysema. Third, oxidants promote inflammation
and may be important in the development of asthma (Luppi and Hiemstra,
2007; De Andrade et al., 2005).
b. Activation of Reactive Oxidant Species
Coal dust increases the production of reactive oxygen and nitrogen
species in the alveolar macrophages of miners exposed to coal dust.
Coal miners with CWP show evidence of such species but this activity
does not occur in asymptomatic coal miners. The magnitude of reactive
species was directly related to the severity of CWP (Attfield et al.,
2007).
c. Stimulation of Inflammatory and Fibrogenic Factors
Coal miners with CWP suffered inflammatory injury to their lungs
but similar effects were not found in asymptomatic coal miners. Cohen
et al. (2006) found that pyrite (FeS2), a common iron
compound found in some
[[Page 64460]]
coal dust, can generate reactive oxygen species. This may be one way
that the inflammation associated with CWP development begins. Such an
effect was found in coal miners with simple CWP but not in a control
group (Altin et al. 2004). Higher rank coals also have a higher
electrostatic charge when broken during mining. This higher charge on
the coal particles leads to an increased degree of agglomeration of
submicron coal dust particles. These particles enhance respiratory
deposition and toxicity due to their higher lung deposition
efficiencies than uncharged particles. These characteristics may
contribute to the increased incidence of CWP observed in high-rank coal
regions (Page and Organiscak 2000).
Coal dust toxicity may be increased by modern mining practices that
shear the coal, creating more freshly broken coal dust. A greater
number of free radicals is contained on the exposed surface of freshly
created dust (Cohen et al. 2008). Coal dust exposure has also been
associated with elevated production of fibrogenic (i.e., scar-
producing) factors. Evidence indicates that production of these
fibrogenic factors is directly related to disease severity.
C. Health Effects
Epidemiological studies have consistently demonstrated the serious
health effects of exposure to high levels of respirable coal mine dust
(i.e., above 2.0 mg/m3) over a working lifetime. Table V-1 lists
epidemiological studies published since 1997. The results of these
studies will be discussed on the basis of the type of observed health
effect. These studies show that the lung is the major target organ in
which toxic effects occur from inhalation of respirable coal mine dust.
Numerous studies of miners have been conducted in the U.S., as well as
in a number of other coal-producing countries (e.g., England, France,
Poland, Germany, Turkey, South Africa, China, and Taiwan). Recent U.S.
studies were conducted using data from the National Study of Coal
Workers' Pneumoconiosis (NSCWP) surveys, and have provided extensive
data on miners' health. The results of these studies demonstrate that
miners are at increased risk of multiple, concurrent respiratory
ailments, including asthma, COPD, and CWP.
Table V-1--Respirable Coal Mine Dust Epidemiological Studies, Reported Effects From 1997 to Present
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reported effects
Study Population studied Exposure measure --------------------------------------------------------------------------------
LLF RS CB A COPD E CWP PMF NMRD
--------------------------------------------------------------------------------------------------------------------------------------------------------
Althouse et al., 1998*......... U.S............... Tenure............ ....... ....... ....... ....... ....... ....... [radic] [radic] .......
Altin et al., 2004............. Turkey............ Tenure............ ....... [radic] ....... ....... ....... ....... [radic] ....... .......
Antao et al., 2005*............ U.S............... N/A............... ....... ....... ....... ....... ....... ....... [radic] [radic] .......
Antao et al., 2006............. U.S............... Tenure & Job...... [radic] [radic] [radic] ....... ....... ....... [radic] [radic] .......
Attfield et al., 2004.......... U.S............... N/A............... ....... ....... ....... ....... ....... ....... [radic] ....... .......
Attfield et al., 2007+......... Various........... N/A............... [radic] ....... [radic] ....... [radic] [radic] [radic] [radic] .......
Attfield and Petsonk, 2007*.... U.S............... Tenure............ ....... ....... ....... ....... ....... ....... [radic] [radic] .......
Attfield and Kuempel, 2008*.... U.S............... Region & CDE...... ....... ....... [radic] ....... ....... [radic] [radic] [radic] [radic]
Attfield et al., 2009*......... U.S............... Miners/ ....... ....... ....... ....... ....... ....... [radic] ....... .......
Region & Tenure.
Beeckman et al., 2001*......... U.S............... N/A............... [radic] [radic] [radic] [radic] [radic] [radic] ....... ....... .......
Bourgkard et al., 1998......... France............ CDE............... [radic] [radic] [radic] ....... ....... ....... [radic] ....... .......
Coggon and Newman-Taylor, 1998+ Review............ .................. [radic] [radic] [radic] ....... [radic] [radic] [radic] ....... .......
Cohen et al., 2008+............ U.S............... N/A............... [radic] ....... [radic] ....... [radic] [radic] [radic] [radic] .......
Cowie et al., 1999............. Britain........... CDE............... [radic] [radic] [radic] ....... ....... ....... ....... ....... .......
Green et al., 1998a*........... U.S............... Tenure............ ....... ....... ....... ....... ....... [radic] [radic] [radic] .......
Green et al., 1998b*........... U.S............... Tenure............ ....... ....... ....... ....... ....... [radic] [radic] [radic] .......
Henneberger and Attfield, 1997* U.S............... CDE............... [radic] [radic] [radic] ....... ....... ....... ....... ....... .......
Hurley et al., 2002............ Britain........... CDE (N/A)......... ....... [radic] [radic] ....... ....... ....... [radic] [radic] .......
Kuempel et al., 1997*.......... U.S............... RDC & CDE & Tenure [radic] ....... ....... ....... [radic] [radic] [radic] [radic] .......
Kuempel et al., 2009a*......... U.S............... CDE............... [radic] ....... ....... ....... ....... [radic] ....... ....... .......
Kuempel et al., 2009b*......... U.S............... CDE & Tenure...... ....... ....... ....... ....... ....... [radic] [radic] [radic] .......
Lin et al., 2001............... Taiwan............ Tenure............ [radic] [radic] [radic] ....... [radic] ....... [radic] ....... .......
Love et al., 1997.............. Britain........... RDC............... [radic] ....... [radic] [radic] ....... ....... [radic] ....... .......
MacCalman and Miller, 2009..... Britain........... Tenure............ ....... ....... [radic] ....... [radic] [radic] [radic] [radic] [radic]
Meijers et al., 1997........... Dutch............. Tenure............ [radic] [radic] ....... ....... [radic] ....... [radic] [radic] [radic]
Miller et al., 1997............ Britain........... CDE............... ....... ....... [radic] ....... ....... ....... [radic] [radic] .......
Miller et al., 2007............ Britain........... CDE............... ....... ....... [radic] ....... [radic] [radic] [radic] [radic] [radic]
Naidoo et al., 2004............ S. Africa......... CDE............... [radic] [radic] [radic] ....... ....... ....... [radic] ....... .......
Naidoo et al., 2005............ S. Africa......... CDE............... [radic]
Naidoo et al., 2006............ S. Africa......... CDE............... [radic] [radic] [radic] ....... ....... ....... ....... ....... .......
Page and Organiscak, 2000...... U.S............... N/A............... ....... ....... ....... ....... ....... ....... [radic] [radic] .......
Peng et al., 2005 [abstract]... China............. RDC............... [radic] ....... ....... ....... ....... ....... ....... ....... .......
Pon et al., 2003*.............. U.S............... Tenure............ ....... ....... ....... ....... ....... ....... [radic] [radic] .......
Ross and Murray, 2004+......... Various........... N/A............... [radic] [radic] [radic] ....... ....... [radic] [radic] ....... .......
Scarsbrick and Quinlan, 2002... Britain........... N/A............... ....... ....... ....... ....... ....... ....... [radic] ....... .......
[[Page 64461]]
Smith and Leggat, 2006......... Australia......... N/A............... ....... ....... ....... ....... ....... ....... [radic] ....... .......
Soutar et al., 2004+........... Britain........... RDC & CDE......... [radic] ....... ....... ....... ....... ....... [radic] [radic] .......
Wang et al., 1997.............. China............. Tenure............ [radic] ....... ....... ....... ....... [radic] ....... ....... .......
Wang et al., 2005.............. China............. T & RDC........... [radic] ....... ....... ....... ....... ....... ....... ....... .......
Wang et al., 2007.............. China............. RDC............... [radic] [radic] [radic] ....... ....... ....... ....... ....... .......
Wang ML et al., 1999........... U.S............... Tenure............ [radic] ....... ....... ....... ....... ....... ....... ....... .......
Wang X et al., 1999............ China............. Tenure............ [radic] [radic] [radic] ....... ....... [radic] [radic] ....... .......
Yeoh and Yang, 2002............ Taiwan............ Tenure............ [radic] ....... ....... ....... [radic] ....... ....... [radic] .......
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Studies of U.S. Miners Participating in the National Study of Coal Workers' Pneumoconiosis (NSCWP) or Nationwide Coal Workers Autopsy Study (NCWAS).
+ Review.
A: Asthma. N/A: Not Applicable.
CB: Chronic Bronchitis. NMRD: Non-Malignant Respiratory Disease.
CDE: Cumulative Dust Exposure. PMF: Progressive massive fibrosis.
COPD: Chronic obstructive pulmonary disease. RDC: Respirable Dust Concentrations.
CWP: Coal workers' pneumoconiosis. RS: Respiratory symptoms, such as cough or phlegm.
E: Emphysema. T&RDC: Total and Respirable Dust Concentrations.
1. Estimates of Morbidity and Mortality
a. Morbidity (Prevalence of Disease)
Routine screening leading to timely intervention affords the
opportunity to prevent further development or progression of
occupational pulmonary disease among miners still exposed to coal dust.
Surveillance programs exist in both the United States and Great
Britain. These data show that coal dust-related diseases among miners
still exist at unacceptable levels. These data sources and studies are
described below.
(1) Data Sources: American Pneumoconiosis Surveillance
There are three surveillance programs in the United States that
track the prevalence of coal-related disease. These are--
The Coal Workers' X-ray Surveillance Program (CWXSP),
The Miners' Choice Program (MCP), and
The Enhanced Coal Workers' Health Surveillance Program
(ECWHSP).
The CWXSP is an occupational health program established by the Coal
Mine Health and Safety Act of 1969 (Coal Act) and administered by the
National Institute for Occupational Safety and Health (NIOSH) pursuant
to 42 CFR part 37. The program screens underground coal miners for
pneumoconiosis. Since implementation of the Coal Act in 1970, coal mine
operators have been required to pay for chest radiographs of all
underground coal miners at the time of hire and again 3 years later.
Coal mine operators are also required to provide miners with the
opportunity for additional x-rays at a NIOSH-approved facility every 5
years at no cost to the miners for the remainder of their mining
careers (Attfield and Petsonk, 2007).
The initial medical survey under this program was conducted between
1969 and 1971. It included posterior-anterior and lateral chest x-rays
and a questionnaire that collected information on symptoms,
demographics, smoking and work history, work tenure, and specific jobs
in the mine. The chest films were read by physicians certified by NIOSH
as proficient in use of the International Labour Office (ILO)
classification system for radiographs of the pneumoconioses. Each film
was read by at least two readers who used a consensus approach to reach
a final determination for each film. The CWXSP defines CWP as small
opacity profusion category of at least 1/0 or large opacities (i.e.,
larger than one centimeter in diameter). Miners with evidence of CWP
are offered the option to work in an area of the mine with a respirable
coal mine dust level of 1 mg/m\3\ or less and have personal dust
exposures monitored at frequent intervals (NIOSH, 2008).
In 1996, the Secretary of Labor's Advisory Committee on the
Elimination of Pneumoconiosis Among Coal Workers (Advisory Committee)
recommended that monitoring for pneumoconiosis be expanded to include
surface coal miners and independent contractors. The Advisory Committee
also recommended incentives to increase underground coal miners'
participation. In response to the Advisory Committee recommendation,
MSHA and NIOSH implemented the Miners' Choice Health Screening Program
(MCP) in October 1999 in an attempt to reach not only surface miners
but also additional underground miners. Through the MCP, MSHA paid for
the miners' x-rays that were taken at any certified medical facility.
MSHA communicated the results of the testing to the individual miners.
The MCP and the CWXSP identified cases of CWP and PMF.
The MCP x-rays were processed using the same procedures and
criteria used in the CWXSP in accordance with the requirements of 42
CFR part 37. The participants were miners from 586 surface coal mines
and 444 underground coal mines and included eight active surface coal
mining communities in Pennsylvania, Kentucky, and West Virginia, as
well as Poteau, Oklahoma, and Gillette, Wyoming. A ninth group included
underground miners in Kentucky. The process was designed to encourage
miners' participation by providing for a greater degree of anonymity
than may be available under the CWXSP. The program ended in October
2002 and more than 19,500 active coal miners from 20 states voluntarily
participated (Pon et al., 2003; 68 FR 10784).
NIOSH in cooperation with MSHA initiated the ECWHSP in March 2006
to increase participation by providing additional respiratory health
evaluations to coal miners using a mobile medical examination unit to
bring the medical exams to the miners in the field. NIOSH and MSHA
hoped that this program would provide early detection of dust-related
pulmonary disease and target additional areas for prevention.
Standardized questionnaires, pulmonary function testing, and chest x-
rays are administered following the protocol of
[[Page 64462]]
the CWXSP (Antao et al., 2006; Attfield and Petsonk, 2007).
The National Center for Health Statistics (NCHS) collects
population data on the prevalence of asthma and COPD (including chronic
bronchitis) in the National Health Interview Survey (NHIS). Another
survey used to assess the health status of the population is the
National Health and Nutrition Examination Survey (NHANES). Findings
from these surveys are used to determine the prevalence of major
diseases, including pneumoconiosis, and their risk factors in the
general population (NIOSH, 2008). Approximately 30% of American miners
have participated in these surveys, resulting in a large database.
(2) Data Sources: British Pneumoconiosis Surveillance
British health surveillance started in the 1950s with the
Pneumoconiosis Field Research (PFR) program. In addition, radiographic
assessment was conducted by the Periodic X-ray (PXR) Scheme of the
British National Coal Board, and medical investigations were conducted
by the Pneumoconiosis Research Unit (PRU) of the Medical Research
Council.
The United Kingdom National Joint Pneumoconiosis Committee
recommended to the National Coal Board that it establish the
Pneumoconiosis Field Research (PFR) program in the early 1950s. This
recommendation was based on research indicating that over 36,000 coal
miners were disabled by pneumoconiosis between the years 1931 and 1949.
The purpose of the PFR program was to conduct field research to
determine the kinds and quantities of dust that cause pneumoconiosis
and to establish health-based exposure levels to reduce the development
of disease in miners. In addition, the PXR Scheme of the British
National Coal Board took x-rays and the Pneumoconiosis Research Unit
(PRU) of the Medical Research Council conducted medical investigations.
There have been at least 10 rounds of health surveys conducted under
the PFR program between 1959 and 2000. Voluntary health surveys were
conducted every five years and included chest radiographs, pulmonary
function tests, and questionnaires on respiratory symptoms and smoking
habits. Initially, response rates were generally above 90%.
Concurrent with the health surveys, a separate industrial hygiene
(IH) assessment was conducted as part of the PFR program that
quantified typical concentrations of respirable dust and quartz for a
variety of occupations within the mines. These exposure measurements
were linked to data from payroll systems on the times worked by each
miner in the same occupations. This IH assessment work produced
individual and period-specific estimates of exposure to respirable dust
and quartz. The number of mines included in the surveys has fluctuated
from 24 representative British collieries (coal mines) in the early
1950s to between 10 and 15 collieries in more recent years. Since the
PXR does not follow a defined cohort of miners, results may not be
representative of the mining population in Britain (MacCalman and
Miller, 2009; Attfield and Kuempel, 2003; Scarisbrick and Quinlan,
2002). In cohort studies subjects are selected based on their exposure
status, in this case, coal dust. The complete cohort should be followed
over time to track disease development.
(3) Estimates of Prevalence in Active American Coal Miners
Studies conducted by NIOSH and MSHA estimated the prevalence of
pneumoconiosis in current coal miners using data collected between
October 1, 1995, and September 30, 2002, from the CWXSP and MCP
surveillance programs (Pon et al., 2003; Antao et al., 2005; Cohen et
al., 2008). A total of 35,983 readable chest films from 31,179 contract
and non-contract miners at 1,439 mines in 23 states were evaluated. The
prevalence of CWP in this population was 2.8% (n = 862 cases), and the
prevalence of PMF was 0.2% (n = 62 cases).
The prevalence of CWP among non-contract employees at surface
mines, non-contract employees at underground mines, and contract miners
was 1.9%, 3.2%, and 3.0%, respectively. The prevalence of CWP and PMF
in underground non-contract miners from 16 states ranged from 0.0% to
9.6%, and 0.0% to 0.6%, respectively. Miners that worked at larger
mines (greater than 50 employees) had a lower prevalence of
pneumoconiosis than those from smaller mines (2.0% versus 5.6% for CWP,
and 0.1% versus 0.5% for PMF, respectively).
As expected, the prevalence of CWP and PMF increased with age and
the length of time worked in coal mining. Information about the length
of time worked in coal mining was available for 28,253 miners (18,388
underground miners and 9,793 surface miners).
In a broader examination of the data, NIOSH reported the number of
cases of CWP category 1/0+ for five year intervals from 1970 through
2004 (NIOSH, 2008). The range of cases (and their percentages) were
11,847 cases in 1970 (11.2% of all miners examined). This number
dropped to 601 cases (3.6%) in the 2000 to 2004 time period. The
estimate for the 2 years of 2005 and 2006 is 270 cases (3.3%). The
prevalence rate increases as tenure in mining increases, from 0.7% for
miners with 0 to 4 years in mining to 9.9% for miners with 30 or more
years in mining.
NIOSH researchers further examined these data to determine if
disease progression could be determined in the 783 underground coal
miners who had at least two radiographs available for review (Antao et
al., 2005). NIOSH determined that 277 (35.4%) of these miners presented
evidence of rapidly progressive CWP and 41 (14.8%) of these miners
presented evidence of PMF. Eight cases showed progression of one
subcategory over 5 years, 156 cases had progression equivalent to two
or three subcategories over a 5-year period, and 72 cases had
progression the equivalent of more than three subcategories over a 5-
year period.
Rounded opacities were the primary shape/size in 73% of the rapidly
progressive cases compared to 50% in the non-rapidly progressive cases.
Overall, the miners with rapidly progressive CWP were somewhat younger
(mean age 48) than the remaining miners evaluated (mean age 51), but
were similar in mean work tenure (27 to 28 years). Miners with rapidly
progressive cases were more likely to have worked in smaller mines than
in larger mines. These miners also reported longer mean tenure in jobs
involving work at the face of the mine (19 years), compared to miners
without rapid progression (17 years). These particular cases occurred
in miners from eastern Kentucky and western Virginia (Antao et al.,
2005).
Clusters of newly identified cases of advanced pneumoconiosis were
surveyed in 2006 by ECWSHP teams that visited two counties in Virginia
(Antao et al., 2006) and in eastern Kentucky and southwestern Virginia
(Attfield and Petsonk, 2007). In March and May 2006, 328 underground
coal miners employed in Lee and Wise counties in Virginia were
examined, representing 31% of the estimated 1,055 underground miners in
those counties. The mean age of examined miners was 47 years, and their
mean tenure working in underground coal mines was 23 years. A total of
216 (66%) had worked at the coal face for more than 20 years; and 30
(9%) had radiographic evidence of pneumoconiosis (i.e., category 1/0 or
higher profusion of small opacities). Of these, 11 miners had advanced
cases, including five with large opacities consistent with PMF and six
with coalescence of small opacities on a
[[Page 64463]]
background profusion of category 2. Among the 11 miners with advanced
cases, the mean age was 51 years (range: 39-62 years), the mean tenure
in underground coal mines was 31 years (range: 17-43 years), and the
mean number of years working at the coal face was 29 years (range: 17-
33 years). All 11 advanced cases met the radiographic criteria for
rapidly progressive CWP. All reported at least one respiratory symptom
(i.e., productive cough, wheeze, or shortness of breath), the most
common being shortness of breath (dyspnea). Four of the nine who
underwent lung function testing had abnormal results (Antao et al.,
2006).
In a separate ECWSHP survey in 2006, pneumoconiosis rates were
determined for 26 sites in seven counties in eastern Kentucky and
southwestern Virginia. A total of 975 (20%) of the 4,897 active
underground miners in the counties participated; 37 (4%) of those
tested had advanced pneumoconiosis. Many of these miners had worked
underground for many years without medical follow-up. Medical records
indicated that all 37 miners with advanced disease had worked
underground for at least 10 years without a chest x-ray; 22 (59%) had
worked for at least 20 years and two others had worked for more than 30
years (Attfield and Petsonk, 2007).
(4) Estimates of Prevalence in Active British Coal Miners
Published PXR results include data for miners and, where
appropriate, separate reports for contractors. A summary of the
prevalence of pneumoconiosis in a given time frame illustrates the
decrease in the size of the British coal mining industry over the last
40 years. Pneumoconiosis prevalence decreased from 12% (56,000 cases)
in the years 1959 through 1963, to 0.2% (13 cases, all category 1) in
the years 1994 through 1997. The prevalence in the years 1998 through
2000, however, rose to 0.8% (35 cases) and included nine cases of
category 2 CWP or greater. The incidence of new cases diagnosed on
second examination among those miners x-rayed on two occasions in the
ninth round of the PXR was 1.4 per 1,000 (all category 1). In the years
1998 through 2000, it rose to 6.9 per 1,000 (a total of 32 cases, 23
category 1 and nine category 2 CWP or greater). A similar increasing
trend in CWP prevalence is apparent in British miners as in U.S.
miners. At the beginning of the British tracking scheme (1959 through
1963), CWP prevalence was 12%; it had dropped to 0.2% in 1997. But
surveillance from 1998 to 2000 shows an increase to 0.8%. The authors
speculated that reasons behind the increase may include longer working
hours, the increased average age of miners, and changes in mining
practices (Scarisbrick and Quinlan, 2002).
b. Mortality (Disease That Results in Death)
The mortality experience of U.S. and British coal miners has been
studied by using either autopsy studies or death certificate data.
These data sources and studies are described below.
(1) Data Sources: American Miners
Two autopsy study populations have been used by researchers
studying the effects of coal mine dust exposure on mining populations.
The first was a study group that consists of 616 underground coal
miners autopsied at the Beckley Southern Appalachian Regional Hospital,
Beckley, West Virginia from 1957 through 1973. All cases had at least
one year of underground bituminous coal mining experience in various
mines within a 100 mile radius of Beckley. The following information
was collected at time of death: Age at death, smoking history,
underground coal mining tenure, and cause of death. A control autopsy
group was comprised of 106 non-miners: 56 cases from the same hospital
who died during the same period as the coal miners and a series of
Medical Examiner autopsies of 50 men at the University of Vermont from
1972 through 1978. All autopsy and demographic data were collected and
processed in a similar manner. At autopsy, whole left lungs were
removed, inflated, and preserved and tissue blocks were taken for
histologic examination from representative areas of the right and left
lungs (Vallyathan et al., 1997; Kuempel et al., 2009a and b).
The second autopsy group is the U.S. nationwide autopsy program
(National Study of Coal Workers' Pneumoconiosis) for underground coal
miners. This program was initiated in 1969 as part of the Coal Act and
implemented in 1972 under section 411(c) (Black Lung benefit claims).
Research has been published on approximately 6,580 autopsy cases from
27 states through 1996. For each case, information was obtained by
means of a questionnaire completed by the next of kin on age, years of
underground mining tenure, primary job within the mine, smoking
history, and state where the questionnaire was completed. A pathology
report and a minimum of three blocks and slides of lung tissues were
submitted. The population autopsied represented approximately 12% of
all deceased miners (Green et al., 1998b).
(2) Data Sources: British Miners
Study of mortality within the PFR cohort began in 1970 and has
compared the mortality experience of the first survey dating from the
1950s with that expected on the basis of general population rates
(Miller et al., 1997 and 2007; MacCalman and Miller, 2009). There were
a series of six PFR surveys beginning in 1954 and ending in 1978. In
the first survey, 24 collieries were included in the study. In the
remaining rounds of the survey, 10 collieries were studied. Surveys
were used in the first round to estimate exposure; whereas in
subsequent rounds actual dust measurements were provided (Miller et
al., 2007). The mortality experience of 18,000 of the initial 31,000
men in the first round was followed over time. Most of the deep mines
in Britain closed around 1980. The cohort's vital status is still being
tracked; though exposure estimates are the same as those reported in
Miller et al. (1997). Mortality of the mining population is compared to
that of a reference population, controlled for region, age, and year-
specific rates. The number of observed deaths in the cohort is compared
to that in the comparison population and a standard mortality ratio
(SMR) is calculated. If the ratio is over 100, than the death
experience of the cohort is elevated above that of the comparison
group. If the ratio is less than 100, then there were fewer deaths from
a specific cause in the cohort than in the comparison population.
Statistical techniques are applied to determine if the specific-cause
of death SMRs are statistically significant, usually at a 95%
confidence level.
(3) Estimates of Mortality in American Coal Miners
Green et al. (1998b) researched the prevalence of the various
pathological types of CWP that occurred in deceased miners by
evaluating lung specimens collected as part of the NCWAS during 1972 to
1996. The researchers examined lung specimens from 4,115 randomly
selected cases from 27 states. In this autopsy survey, the authors
determined that the overall frequencies of CWP lesions were:
77% macules;
39% nodules (macules develop into nodules);
23% silicosis;
8% progressive massive fibrosis (PMF); and
80% emphysema.
The prevalence of all types of lesions has declined over the years.
At the beginning of the autopsy survey in the
[[Page 64464]]
1970s, miners had died who worked in the industry in the 1940s. Their
prevalence of nodular CWP at death was 53%. Autopsies of miners who had
begun working in the industry since 1970 (under the existing 2 mg/m\3\
standard) had a 17% prevalence of nodular CWP at death. The results of
this autopsy study indicate that as dust exposure was reduced in U.S.
mines the prevalence of CWP also was reduced. Attfield et al. (2004)
examined mortality from pneumoconiosis using National Center of Health
Statistics data from 1968 through 2000. They found that overall age-
adjusted death rates for CWP dropped 36% from the 1968-1981 time period
to the 1982-2000 time period.
From 1990 to 1999, a large majority of CWP deaths were associated
with employment in the coal mining industry, for which proportionate
CWP mortality was more than 50 times higher than that of all
occupations combined. A review of death certificates for the years 1968
through 2005 shows that CWP mortality has been declining rapidly in the
anthracite coal region of Pennsylvania, reflecting the reduction in
coal mining in this region over the last 30 years. In the much larger
bituminous coal mining regions, deaths from CWP have declined over time
but may be increasing among younger miners (Attfield et al., 2009).
Nationally, CWP deaths among U.S. residents age 15 and over continue to
decline, from well over 2,500 deaths annually in the early 1980s to
well below 1,000 in the early 2000s. CWP deaths accounted for over one-
third of pneumoconiosis deaths during the 10-year period from 1995 to
2004; and seven counties (two in Virginia, one in Pennsylvania, one in
Kentucky, and three in West Virginia) had age-adjusted CWP death rates
that exceeded the national rate by more than 100-fold (NIOSH, 2008).
In order to determine mortality rates for a cohort of 9,078 working
coal miners who participated in the initial round of the CWXSP
surveillance survey from 1969 to 1971, NIOSH researchers conducted a
study that reviewed the 23-year mortality experience of the cohort and
analyzed the mortality data through 1993. The final analysis included
the mortality experience of 8,899 miners (Attfield and Keumpel, 2008).
The vital status of these miners was determined using various sources.
Death certificates were obtained from the appropriate State Department
of Vital Statistics to collect cause of death information, including
underlying and contributing causes of death. Exposure data from the
CWXSP were cross-referenced on the decedents. Cumulative dust exposure
estimates were determined based on tenure in mining and estimates of
dust concentrations for given occupations.
This group of miners experienced increased mortality from
nonmalignant respiratory diseases (NMRD), pneumoconiosis, and other
respiratory diseases. Mortality was significantly associated with coal
rank in decreasing order of anthracite, east Appalachia, west
Appalachia, and the West. A significant trend in NMRD mortality was
seen with increasing severity of pneumoconiosis after controlling for
age, coal rank region, and smoking. Coal dust exposure was also
significantly related to NMRD mortality independent of pneumoconiosis.
There was also a statistically significant trend in mortality from NMRD
with increasing dust exposure and with increasing radiographic category
of simple or complicated CWP. It is important to note that miners with
minimal CWP had significantly elevated levels of NMRD mortality despite
the fact that their mean cumulative dust exposure was less than would
be expected after a 40-year working life at the existing limit of 2 mg/
m\3\. Smoking had a significant impact on the mortality experience of
these miners. However, it did not appear to be a confounding factor in
the current findings for NMRD mortality because the prevalence of
smoking did not vary systematically with mortality among miners across
the pneumoconiosis or cumulative dust exposure groups (Attfield and
Keumpel, 2008).
A large proportion of miners in every coal mining state die due to
CWP. NIOSH (2008) reported the proportionate mortality ratio (PMR),
adjusted for age, sex, and race, for the years 1990 to 1999 for
specific coal mining occupations. The PMR is the observed number of
deaths divided by the expected number of deaths. A PMR greater than 1.0
indicates more deaths associated with CWP in a specific coal mining
occupation than expected. Over all, the age-adjusted PMR for the coal
mining industry due to CWP is estimated to be 53.2. For individual
occupations the estimates were as follows:
------------------------------------------------------------------------
Occupation PMR
------------------------------------------------------------------------
Mining machine operators....................................... 51.7
Supervisors in extractive occupations.......................... 14.4
Mining engineers............................................... 6.0
Mining occupations not elsewhere classified.................... 4.5
Miscellaneous material moving equipment operators.............. 2.3
Locomotive operating occupations............................... 2.0
------------------------------------------------------------------------
These data indicate that coal miners in production jobs have higher
proportionate mortality from CWP (NIOSH, 2008).
(4) Estimates of Mortality in British Coal Miners
Data show that mortality risks due to NMRD (including COPD, chronic
bronchitis, and emphysema) and severe pneumoconiosis have increased
over time. Analyses have also shown exposure-response relationships for
risks of various respiratory causes of death with increasing exposure
to dust, but little evidence of increased cancer risks from dust or
quartz exposures (MacCalman and Miller, 2009). Miller et al. (1997)
reported that between the second phase of the PFR (November 1957 to
June 1963) through December 1992 the number of deaths in the British
cohort of 23,789 men was 7,002 (29.4%). Of theses deaths, 1,272 (18.2%)
were from respiratory disease: 436 (6.2%) from chronic bronchitis, 56
(4.4%) from other bronchitis, 203 (16%) from pneumoconiosis (including
seven silico-tuberculosis deaths), and 584 (8.3%) from other
respiratory causes.
Miller et al. (2007) updated this analysis by including 14 more
years of follow-up and covering mortality through 2006. The number of
deaths in the British cohort of 17,820 men was 10,698 (60.0%) from all
causes. Deaths from respiratory diseases were 1,966 (11.0%) from NMRD,
849 (4.8%) from COPD, 500 (2.8%) from chronic bronchitis, 70 (0.4%)
from emphysema, and 288 (1.6%) from all pneumoconioses (including 222
(1.2%) from CWP and 10 (0.1%) from silicosis). Significantly elevated
cause-specific mortality was determined for NMRD, COPD, chronic
bronchitis, and emphysema when the cohort mortality was compared to
that of an external reference group. There was not a pneumoconiosis-
specific mortality in the comparison group. There was less than
expected mortality from tuberculosis (TB), all cancer, lung cancer, and
cardiovascular disease, including acute pulmonary heart disease. Miller
et al. (2007) observed elevated, but not statistically significant,
mortality for all causes and ischemic heart disease. Miners also had
significantly elevated deaths from stomach cancer with 323 deaths
(1.8%).
2. Chronic Obstructive Pulmonary Disease (COPD)
a. Pulmonary Function
The feature common to obstructive pulmonary diseases is obstructed
ventilation. This physiological defect is
[[Page 64465]]
measured with a spirometer. The specific parameter is the Forced
Expiratory Volume in one second (FEV1). This is a measure of
the amount of air a person can forcibly exhale in one second. If it is
less than a predicted value by 80% or by 65%, it indicates impairment
or serious impairment. The FEV1 varies with a person's age,
height, gender, and ethnicity. Formulas based on surveys of normal
healthy adults provide formulas for predicting a ``normal'' value. It
is a simple and inexpensive test to perform and was used in many
surveys and studies, as discussed below.
Peng et al. (2005) and Wang ML et al. (2005) compared pulmonary
function in young miners exposed to coal dust with younger students at
a mining technical school over a 3-year period. On average, respirable
dust concentrations exceeded MSHA's exposure limit for respirable coal
mine dust of 2 mg/m\3\. The FEV1 of the miners showed a
significant clinical, though non-linear, decline compared to the
controls. Smoking aggravated the effect of dust exposure.
Chinese coal miners with clinically important depressed
FEV1 were compared to other miners with stable pulmonary
function (controls). (Wang ML et al., 1999) Miners with impaired
function (cases) were more likely to work as a roof bolter, on a
longwall section, and at the face. They were also more likely to have
been exposed to explosive blasting and to water stored for dust
control. Miners in the control group were more likely to have reported
using respiratory protection than cases. On longwall sections, nearly
twice as many of the controls used respiratory protection than had the
miners with decreased FEV1.
Naidoo et al., (2005) compared lung function of former and current
coal miners in South Africa. Cumulative coal dust exposure estimates
were derived from historical data maintained by coal companies. The
FEV1 of current miners declined by 1.1 ml/mg-year/m\3\ and
for former miners, at 2.2 ml/mg-year/m\3\. This study found that 2.7%
of current miners and 5.7% of former miners had FEV1 levels
less than 65% predicted (the conventional threshold level for
determining significant impairment). Ex-miners had a lower average
percent predicted pulmonary function than current miners for each
cumulative exposure category. Past history of TB contributed to 21% and
14% declines in percent predicted FEV1 and FVC,
respectively. This study confirmed that cross sectional studies of
working miners can underestimate the prevalence of disease because of a
healthy worker or survivor effect. This implies that estimates of the
effects of dust on pulmonary function based on surveys limited to
active miners are likely underestimates of the true effect. Miners with
greater loss of pulmonary function tend to drop out of the mining
workforce.
The study of British miners by Cowie et al. (2006) was prompted by
the need to study clinically important deficits in pulmonary function
in relation to dust exposure in a population of miners that was
sufficiently large and representative and whose prior dust exposure was
well characterized. This need arose following the recognition that
exposure to coal mine dust could impair pulmonary function
independently of pneumoconiosis. The aim was to support setting dust
standards to prevent functional disability among British miners. This
investigation was based on data from more than 7000 miners who
participated in the fifth round of the PFR in the late 1970s. In
practical terms, the aim of this analysis was to evaluate the
association between cumulative dust exposure and functional disability
(i.e., breathlessness).
The investigators first evaluated the relationship between
FEV1 and breathlessness and then between FEV1 and
cumulative exposure to dust among relevant other factors (age, height,
and smoking). The decline in FEV1 due to dust was estimated
to be between 0.5 and 0.6 ml per gram-hour/m\3\. (This finding is not
directly applicable to miners in the U.S. because of differences in
dust sampling methods.) An exposure-response relationship between dust
exposure and reduced pulmonary function was determined.
Wang et al. (1997) compared pulmonary function in underground coal
miners with that of factory workers in Chongqing, China. They took
chest x-rays, performed pulmonary function tests (FEV1, FVC,
and DLCO), and assessed their smoking habits.
DLCO (diffusion of carbon monoxide) is an indicator of gas
exchange in the lung. Exposure was measured by the miners' occupational
histories. The results of the study indicated that pulmonary function
was associated with job tenure (and, indirectly, because of exposure to
dust) and independently of simple CWP. Pulmonary function was further
decreased when simple CWP was present. This study did not provide
exposure measurements and there was no consideration of exposure-
response relationships.
Bourgkard et al. (1998) studied French coal miners with CWP
(Categories 0/1 and 1/0) who were employed in underground and surface
mines over a 4-year period. They examined the prognostic role of
cumulative dust exposure, smoking, respiratory symptoms, lung CT scans,
and pulmonary function indices progression to simple CWP category 1/1
or higher. At the first medical examination, miners with wheezing and
lower ratio of FEV1/FVC were more likely to progress to
category 1/1 or higher. Thus, this study suggested that such pulmonary
function changes for miners with Category 0/1 or 1/0 may indicate an
increased risk of progressing to a higher category of simple CWP and
therefore should be monitored closely.
Collectively, these studies from the United States, Great Britain,
France, China, and South Africa show that cumulative exposure to
respirable dust results in loss of pulmonary function. These studies
illustrate an exposure-response relationship between coal dust and loss
of pulmonary function that is non-linear, with a higher rate of decline
early in the miner's exposure. Investigations by Naidoo et al. (2005)
also suggest that cross-sectional studies of working miners may
underestimate the effects of dust on pulmonary function because they
are studies of ``healthy workers.'' This obstructive impairment is
likely associated with COPD, such as chronic bronchitis or emphysema
(Cohen et al., 2008) and may be an indicator of risk of developing CWP.
Minimal recovery of pulmonary function is possible if exposure is
reduced. Effects are independent of CWP and of smoking. Miners with CWP
typically have worse pulmonary function than miners without CWP and the
combined effects of smoking and exposure to dust appear to be additive
(Cohen et al., 2008).
b. Chronic Bronchitis
Chronic bronchitis develops slowly, by small increments, and, by
definition, ``exists'' when it reaches a certain stage. It is defined
as the presence of a productive cough for most days of a week, at least
three months of a year for at least two consecutive years. Emphysema is
destruction of lung architecture in the alveolar region resulting in
airways obstruction and impaired gas exchange. Asthma is a reactive
condition of the airways that is triggered by any of several allergens
or other factors. Asthma, chronic bronchitis, and emphysema, have been
studied in mining populations (Henneberger and Attfield, 1997; Naidoo
et al., 2006; Wang et al., 1997 and 2007; Coggon and Taylor, 1998;
Beeckman et al., 2001; Ross and Murray, 2004; Kuempel et al., 2009a and
b; Boschetto et al., 2006; Green et al., 1998b). As
[[Page 64466]]
indicated by these studies, the exposure of miners to respirable coal
mine dust places them at increased risk of developing obstructive
pulmonary diseases. Furthermore, these diseases may occur in miners
with or without CWP or PMF and independent of smoking history.
COPD is characterized by airflow limitations (usually as reduced
FEV1) that are not fully reversible. This limitation in
airflow is both progressive and associated with abnormal inflammatory
response of lung tissue to noxious agents, such as coal dust. As in
simple CWP or PMF, a miner with COPD may have a variety of respiratory
symptoms (e.g., shortness of breath, cough, sputum or phlegm
production, and wheezing) and may be at increased risk of acquiring
infections (Boschetto et al., 2006). COPD is associated with increased
premature mortality (Hansen et al., 1999; Meijers et al., 1997),
especially in association with pneumoconiosis (Attfield and Keumpel,
2008). The occurrence of chronic bronchitis and of decreased
FEV1 is closely related, but one does not always occur with
the other. A miner with bronchitis, especially in early stages, will
not necessarily have reduced FEV1 and a miner with reduced
FEV1 may have any of several conditions (e.g., asthma,
emphysema, or an infection), bronchitis among them. There have been
many studies evaluating this relationship.
Henneberger and Attfield (1997) evaluated data from pulmonary
function tests and standardized health questionnaires of 1,866 male
miners who were either in the first round of NSCWP testing in 1969-1971
or the second round in 1972-1975. These miners were followed-up in the
fourth round (1985-88). A common finding in their study was an increase
in respiratory symptoms, such as chronic bronchitis, shortness of
breath, and wheezing. These symptoms were associated with cumulative
dust exposure.
An international team of researchers studied respirable coal dust
exposure and respiratory symptoms in former and current South African
coal miners (Naidoo et al. 2006). Ex-miners had significantly more
respiratory symptoms--cough and phlegm production, wheezing,
breathlessness when dressing--than current miners. The authors
attributed this difference to the ``healthy worker effect'' as noted by
Naidoo (above). Smoking and past tuberculosis history were associated
with wheezing and breathlessness when walking or dressing.
Wang et al. (2007) investigated the relationship between early
rapid decline in FEV1 and symptoms of bronchitis among newly
hired Chinese miners exposed to high levels of respirable dust (average
8.9 mg/m\3\). In a three year study, symptoms of bronchitis were
elevated after 11 months. After 24 months, the miners who developed
symptoms of bronchitis and who smoked had lost significantly more
FEV1 (235 ml v 96 ml) than miners without symptoms and who
did not smoke. In both groups, loss of pulmonary function was early and
rapid with some recovery after two years.
In a review of chronic obstructive pulmonary disease occurring in
coal miners, Coggon and Newman-Taylor (1998) and Newman-Taylor and
Coggon (1999) summarized the evidence that the best estimate of the
average loss of FEV1 in miners exposed to coal mine dust is
0.76 ml/gram-hour/m\3\. (This rate is not applicable to miners in the
U.S. because of differences in measuring dust concentration.) This loss
is independent of the development of chronic bronchitis, and is in
addition to the effect of smoking. The British PFR studies indicate an
increase in the prevalence of severe loss of pulmonary function and
mortality from COPD in miners heavily exposed to coal dust. Miller et
al. (1997) reported 20% increased risk of chronic bronchitis in the
British mining cohort, compared to the disease occurrence in the
general population.
Using PFR data, Hurley et al. (2002) calculated estimates of dust-
related disease in British coal miners at exposure levels common in the
late 1980s, and related the impairment of pulmonary function and the
development of chronic bronchitis in these coal miners to their
cumulative dust exposure. Estimates of disease were calculated based on
the results of a random sample of 895 miners who worked at 10 mines.
Their average dust exposure was 200 gram-hour/m\3\ and their average
age was 49. The authors estimated that by the age of 58, 5.8% of these
men would report breathlessness for every 100 gram-hour/m\3\ dust
exposure. The authors also estimated the prevalence of chronic
bronchitis at age 58 would be 4.0% per 100 gram-hour/m\3\ of dust
exposure. These miners averaged over 35 years of tenure in mining and a
cumulative dust exposure of 132 gram-hour/m\3\ respirable dust
exposure.
Beeckman et al. (2001) studied U.S. coal miners who had
participated in the NSCWP surveys after 1976. The purpose of this study
was to determine the long-term health effects associated with rapid
decline in FEV1. They selected cases with accelerated loss
in FEV1 and compared them to miners matched on age, height,
smoking habits and initial FEV1. (Accelerated decline was >
60 ml per year compared to the matched referent miner.) These miners
presented multiple adverse respiratory symptoms related to their dust
exposure. Surveys were completed by the miners or, if the miner had
died, by his or her next of kin. The survey collected information on
occupational, health, and smoking history. The follow-up period for
this cohort of miners was between 10 and 18 years. Researchers found
that accelerated loss of pulmonary function was associated with dust
exposure. There were no significant differences between the two mining
groups in relation to age, height, weight, or pack-years of smoking.
Compared to miners who did not have accelerated decline in
FEV1, smoking and nonsmoking miners who experienced
accelerated declines in FEV1 subsequently developed more
frequent respiratory symptoms of cough, phlegm production, grades II
and III dyspnea, and wheezing. They also reported more frequent chest
illnesses (chronic bronchitis and self-reported asthma and emphysema).
A larger proportion of this group of miners left mining before
retirement due to their chest illnesses. They were twice as likely to
die due to cardiovascular or nonmalignant respiratory disease and three
times as likely to die due to COPD as were their colleagues with more
stable pulmonary function. Beeckman et al. concluded that rapid decline
in FEV1 among miners was associated with increased morbidity
and mortality and could be used to facilitate early intervention to
preserve pulmonary function.
c. Emphysema
Emphysema is the destruction of the normal structure of the lung
and results in impaired gas exchange and airways obstruction. There are
three main morphological types of pulmonary emphysema: centriacinar,
panacinar, and paraseptal. Centriacinar (centrilobular) emphysema
occurs when focal dilations occur around respiratory bronchioles. These
dilations occur throughout the upper parts of the lung among normal
lung tissue. The other main form of emphysema is panacinar (panlobular)
where tissue loss and damage occurs in the terminal bronchioles and is
more likely to affect the lower half of the lungs. Another form of
emphysema that is less common is paraseptal (scar) emphysema where
bullae occur on the lung edges. If these
[[Page 64467]]
bullae rupture, a pneumothorax (collapsed lung) could result. These
types (and sub-types) can only be identified at autopsy. In the living
miner, one cannot easily identify these types and the diagnosis is made
on clinical findings, one of which is reduced FEV1.
Autopsy studies have determined that centriacinar emphysema in coal
miners is associated with the amount of dust retained in lung tissue at
the time of death (lung burden), with measured dust exposures,
associated with CWP, and with years worked underground.
The objective of a study by Kuempel et al. (2009a) was to determine
whether lifetime exposure to cumulative respirable coal mine dust
resulted in clinically important emphysema. This group reviewed the
medical records and questionnaire responses of 616 coal miners and 106
non-miners autopsied during 1957 to 1978. Clinically relevant emphysema
was defined at two levels, FEV1 less than 80% and
FEV1 less than 65% of predicted normal values. The cohort
average cumulative coal dust exposure was 87 mg-year/m\3\ and the
cohort average cigarette smoking was 42 pack-years. Study results
indicate that the odds ratio of developing emphysema associated with
FEV1 less than 80% was 2.30 (95% CL: 1.46-3.64) at the
cohort average cumulative coal dust exposure of 87 mg/m\3\[middot]yr
and 1.95 (1.39-2.79) at the cohort average smoking level. For emphysema
associated with FEV1 less than 65% of predicted, the
respective odds ratios were 2.39 (1.51-3.83) for dust exposure and 1.52
(1.10-2.13) for smoking. The odds ratios for developing clinically-
relevant emphysema (i.e., associated with FEV1 less than 80%
or less than 65%) for cumulative coal dust exposure (2.30 or 2.39,
respectively) were elevated, though not significantly different than
the odds ratios for cigarette smoking (1.95 or 1.52, respectively) at
the cohort mean values. Never-smoking coal miners had a significant
risk of developing clinically-relevant severe emphysema. Thus exposure
to coal mine dust and smoking were each predictors of clinically
relevant emphysema. Effects appear to be additive.
Green et al. (1998a) and Kuempel et al. (2009b) further analyzed
the autopsy data from 722 coal miners and non-miners in the U.S.
described above. Green et al. studied the different types of emphysema
and various factors, such as lung dust burden, associated with its
occurrence; while Kuempel et al. determined the independent effects of
smoking and dust exposure on the different grades of emphysema. Green
et al. found that the severity of emphysema was associated with time
worked in mining, level of pneumoconiosis, and the lung burden of coal
dust. Centriacinar emphysema (including focal emphysema) was the
predominant form associated with coal mine dust exposure but that
almost all forms of emphysema were associated with coal mining. Senile
emphysema was more commonly found in the non-miner controls. As
expected, smoking was also associated with all types of emphysema in
this study population. Kuempel et al. found that emphysema severity was
significantly elevated in coal miners compared with non-miners
regardless of smoking history. Cumulative exposure to respirable coal
mine dust or coal dust lung burden significantly predicted emphysema
severity in models that controlled for smoking, age at death, and race.
Both Green et al. (1998a) and Kuempel et al. (2009b) determined that
smoking and coal dust exposure had an additive effect on the occurrence
of emphysema in this cohort.
3. Coal Workers Pneumoconiosis (CWP)
a. Simple Coal Workers' Pneumoconiosis (Simple CWP)
In a study of miners who participated in round six (1990-1995) of
the CWXSP, Althouse et al. (1998) found an average prevalence rate of
2.2% for simple CWP category 1 among the 8,210 miners who reported
beginning work in underground coal mines in 1973 or later. Miners who
reported other prior dusty work were excluded from the analysis. The
Althouse et al. (1998) study did not include estimates of exposure
concentration, but the prevalence rates were shown to increase with
tenure in mining (up to 22 years).
Wang et al. (1999b) studied a mining population in China (described
above). On average, miners with CWP worked over 22 years underground
while those without CWP worked 15 years underground. Miners with CWP
had significant reductions in pulmonary function parameters, and
diffusing capacity for carbon monoxide after adjustment of smoking and
working underground. Miners with CWP had significantly more respiratory
symptoms, including emphysema, than miners without CWP after adjustment
for age, smoking, and years working underground. Simple CWP was found
to be an independent contributor to pulmonary function and to increased
risk of respiratory symptoms. Reduction of FVC and diffusing capacity
are thought to reflect CWP-related interstitial fibrosis. Miners that
developed chronic bronchitis and emphysema had reductions in
FEV1 and FEV1/FVC. These pulmonary effects were
associated with years of coal mine dust exposure.
Bourgkard et al. (1998), described above, conducted a study of
French underground coal miners between 1990 and 1994. Miners in the
case group had significantly higher mean profusion scores
(micronodules, nodules, and other lung abnormalities) as determined by
CT scans. They also had significantly more wheezing and dyspnea than
either of the control groups. Miners with CWP also had significantly
lower pulmonary function test results including FEV1/FVC,
MMEF (maximal mid-expiratory flow), and FEF 25% (maximal forced
expiratory flow at 25% of vital capacity). This study found a
significant association between cumulative dust exposure and worsening
chest x-ray (i.e., increase in reader-designated category signifying
progression of simple CWP). In addition, they found that miners with
pneumoconiosis, wheezing, decreased pulmonary function, and high
cumulative dust exposure at the first medical examination were those
most likely to show worsening on their chest x-rays four years later.
Love et al. (1997) reported on occupational exposures and the
health of British opencast (i.e., surface or strip) coal miners. They
studied a group of approximately 1,200 miners who were employed at
sites in England, Scotland, and Wales. The mean age of the men was 41
years; many had worked in the mining industry since the 1970s. To
determine dust exposure levels, full-shift personal samples were
collected. Most were respirable dust samples which were collected using
Casella cyclones according to the procedures described by the British
Health and Safety Executive. Thus, exposure determinations would be
comparable to exposure determinations obtained in U.S. surface coal
mines since both measure respirable dust according to the British
Medical Research Council criteria. These investigators found a doubling
in the relative risk of developing profusion of simple CWP category 0/1
for every 10 years of work in the dustiest jobs in surface mines. These
coal dust exposures were under 1 mg/m\3\.
Naidoo et al. (2004) in the initial analysis of the data collected
on South African coal miners (see above) reported a significant trend
in the development of pneumoconiosis in current miners as cumulative
dust exposures increased from low (0.62-20.10 milligram-year per cubic
meter of air (mg-yr/m\3\)) through medium (20.11-72.77 mg-yr/m\3\) to
high
[[Page 64468]]
(72.78 to 258.70 mg-yr/m\3\) levels. Miners diagnosed with an average
CWP profusion of greater than 1/0 had significantly more cumulative
dust exposure of 115 mg.years/m\3\ as compared to miners without CWP
who had dust exposure of 57.72 mg-yr/m\3\. The authors reported that
miners with CWP profusion of greater than 1/0 also had lower mean
percent predicted pulmonary function.
Lin et al. (2001) studied 227 former and current miners who showed
evidence of CWP on x-ray. These miners were evaluated at two medical
clinics in Taiwan from June 1998 to February 2000 for the effect of CWP
on respiratory function. Each subject received a medical examination
and included a self-administered questionnaire to collect demographic,
occupational, and health history. Subjects were classified according to
their CWP radiological category (0-3) and the presence (52.9%) or
absence (47.1%) of airway obstruction, defined as having a normal FVC
and FEV1. These two groups were similar in regard to age,
body size, and cumulative exposure to coal dust and smoking. There was
significant progression of functional pulmonary impairment in men with
category 2 or 3 CWP, in both the obstructed as well as unobstructed
group.
Smith and Leggat (2006) studied pneumoconiosis mortality in
Australian coal miners by examining 24 years of national mortality data
(1979-2002). These researchers found that 6% of these cases died due to
CWP. The prevalence was about 0.5 CWP deaths/million population in
1979-1981. Prevalence increased during the period 1988-1990 to about
0.7 CWP deaths/million population. It declined to about 0.4 CWP deaths/
million during the 1994-1996 time period. It remained at this level
through 2002.
b. Rapidly Progressive CWP and Progressive Massive Fibrosis (PMF)
PMF is associated with decreased pulmonary function and increased
premature mortality. It is also associated with increases in
respiratory symptoms such as chest tightness, cough, and shortness of
breath. Miners with PMF also are at increased risk of acquiring
infections and pulmonary tuberculosis. Finally, miners with PMF are at
an increased risk of right-side heart failure (i.e., cor pulmonale) (68
FR 10784).
Researchers determined that cases of rapidly progressive CWP are
sentinel health events. These cases indicate inadequate prevention
measures in specific regions. As reported above, Antao et al. (2005)
identified a total of 886 cases of CWP among 29,521 miners examined
from 1996 to 2002 in the CWXSP. CWP progression was evaluated in 783 of
these miners; 277 (35.4%) were cases of rapidly progressive CWP,
including 41 with PMF. The miners with rapidly progressive CWP were
younger than miners without rapid progression, worked in smaller mines,
and reported longer mean tenure in jobs involving work at the face of
the mine. Many of these cases of rapidly progressive CWP developed in
miners from eastern Kentucky and western Virginia.
In a review, Soutar et al. 2004, reported on exposure-response
relationships that have been derived using the PFR data for category 2
CWP, PMF, chronic bronchitis (breathlessness), clinically important
deficits of pulmonary function (FEV1), and category II
silicosis. Risks for CWP and PMF are based on over 50,000 observations
collected over 25 years. Pulmonary function results are based on a
study of 7,000 miners. A threefold increase in the odds of a
clinically-important deficit in pulmonary function was associated, on
average, with a 0.993 liter FEV1 deficit from predicted at
the same average exposure level. Reductions in dust levels to protect
against pneumoconiosis would protect similarly exposed miners from this
significant pulmonary functional deficit.
Yeoh and Yang (2002) studied PMF in current and ex-coal miners from
October 1998 to February 2000 who were medically examined at clinics in
Taiwan. Miners were between 45 and 76 years of age and had between 2
and 42 years dust exposure in coal mines. A non-mining control
population of healthy male Taiwanese over the age of 40 was selected.
Data from 86 miners with PMF and the controls were included in the
final analysis. These miners had worked as rock drillers (n = 65), face
workers (n = 17), and general laborers (n = 4). Average duration of
work underground was 28.6 years. Miners were shorter, weighed less, but
smoked more than the controls. These miners had significantly reduced
pulmonary function as compared to healthy controls. Miners were
diagnosed as having either PMF Category A (n = 45), PMF Category B (n =
32), or PMF Category C (n = 9). Pulmonary function testing indicated
that 51 of these miners presented with an obstructive pulmonary
disorder, while 17 presented with a restrictive disorder, 11 had a
mixed functional abnormality, and 7 had normal lung function. Smoking
and nonsmoking miners had comparable reductions in FEV1 and
FVC measurements. Smokers also showed a higher degree of airway
obstruction. Similar restrictive, obstructive, or mixed patterns of
respiratory impairments have been observed in American coal miners
(Cohen et al. 2008).
Kuempel et al. (1997) estimated excess (exposure-attributable)
prevalence of simple CWP and PMF (i.e., number of cases of disease
present in a population at a specified time, divided by the number of
persons in the population at that specified time). PMF excess risk
point estimates ranged from 1/1,000 to 167/1,000 among miners exposed
at the existing MSHA standard for respirable coal mine dust. These
estimates were based upon dust exposure that occurred over a miner's
working lifetime (e.g., 8 hours per day, 5 days a week, 50 weeks per
year, over a period of 45 years). Actual occupational lifetime exposure
may be more, due to extended work shifts and work weeks. The point
estimates of PMF presented by Kuempel et al. (1997) were related to
coal rank, where higher estimates (e.g., 167/1,000) were obtained for
high-rank coal (anthracite coal) and somewhat lower estimates were
obtained for medium/low rank bituminous coal (e.g., 21/1,000). Within
each coal rank, the estimates of simple CWP cases were at least twice
as high as those for PMF (e.g., 167/1,000 PMF vs. 380/1,000 simple
CWP).
In summary, studies confirm that the risk of PMF increases with
increasing category of simple CWP. The risk of PMF increases with
increasing cumulative exposure, regardless of the initial category of
simple CWP. This indicates that reducing dust exposures is a more
effective means of reducing the risk of PMF than reliance on detection
of simple CWP.
D. Conclusion
The premature morbidity and mortality related to pulmonary disease
in coal miners affect not only the miners and their families, but also
the companies they work for and the communities they live in. The
serious nature of one of these diseases, pneumoconiosis, was stated in
the Coal Act as part of the justification for lowering the coal dust
standard to 2 mg/m\3\.
The extent of knowledge on how coal dust causes adverse pulmonary
effects has evolved greatly in the 31 years since the Coal Act was
signed into law. Though exposures have been reduced, this review of the
literature indicates that miners are still suffering unacceptable
levels of disease. Under the existing standards, miners are still at
increased risk of developing adverse effects such as pulmonary function
[[Page 64469]]
deficits, obstructive and restrictive diseases including chronic
bronchitis, COPD, emphysema, and simple CWP and PMF from a working
lifetime exposure to respirable coal mine dust.
The knowledge and methods for preventing these occupationally-
related diseases is known. The proposed rule would lower the
concentration limit and include other important provisions necessary to
reduce miners' exposure. Medical monitoring methods, such as pulmonary
function testing, can be used to detect reductions in pulmonary
function over time before CWP develops. Such affected miners can be
protected from further deterioration by common industrial hygiene
practices such as engineering controls and respiratory protection.
V. Quantitative Risk Assessment
Below is a summary of the quantitative risk assessment (QRA)
prepared for this rulemaking. The QRA has been peer reviewed by
independent scientific experts at NIOSH and OSHA. The full text of the
QRA and the peer reviewers' reports can be accessed electronically at
http://www.msha.gov/regs/QRA/CoalDust2010.pdf.
The QRA addresses three questions related to MSHA's proposed
respirable coal mine dust rule: (1) Whether potential health effects
associated with existing exposure conditions constitute material
impairments to a miner's health or functional capacity; (2) whether
existing exposure conditions and compliance approaches place miners at
a significant risk of incurring any of these material impairments; and
(3) whether the proposed rule has the potential to substantially reduce
those risks.
After summarizing respirable coal mine dust (RCMD) measurements for
miners in various occupational categories, Part 1 of the QRA shows that
exposures at existing levels are associated with coal workers
pneumoconiosis (CWP), chronic obstructive pulmonary disease (COPD)
including severe emphysema, and death due to non-malignant respiratory
disease (NMRD). All of these outcomes constitute material impairments
to a miner's health or functional capacity.
Part 2 of the QRA analyzes and quantifies the excess risk of
miners' incurring CWP or COPD, or dying due to NMRD, after 45 years of
full-shift occupational exposure at levels currently observed in
various exposure categories. Miners having different occupations and
working at different locations face significantly different levels of
RCMD exposure. In every exposure category, including clusters of
occupational environments showing the lowest average dust
concentrations, current exposure conditions place miners at a
significant risk of incurring each of the material impairments
considered.
Part 3 of the QRA projects the risk of material impairments after
the proposed exposure limit is applied to each shift. Although
significant risks would remain in every exposure category, the proposed
rule would substantially reduce the risks of CWP, severe emphysema, and
NMRD mortality attributable to RCMD exposures. The proposed rule is
projected to have a greater impact on risk for underground miners than
for surface miners. Surveillance and exposure data have been collected
on U.S. underground coal miners for over 40 years; there are few
comparable studies on surface coal miners. The QRA shows that surface
work locations exceed the proposed exposure limit on relatively few
individual shifts and that the proposed rule is projected to have
relatively little impact for surface workers who are exposed to average
concentrations below 0.5 mg/m\3\. However, the data also show that
certain surface occupations are exposed to concentrations of respirable
dust exceeding the proposed exposure limit.
Table 28 of the QRA contains the projected reduction in these risks
for each occupational category. For progressive massive fibrosis (PMF,
the most severe stage of CWP considered), projected improvements for
underground workers at age 73 range from a reduction of 4 excess cases
per thousand loading machine operators to a reduction of 75 excess
cases per thousand cutting machine operators. For severe emphysema at
age 73, the range of projected improvements for underground workers
runs from a reduction of 3 cases per thousand white loading machine
operators to a reduction of 50 cases per thousand non-white cutting
machine operators. Again for underground workers, the range of
projected improvements in the risk of death due to NMRD by age 85 is
projected to run from 1 excess case per thousand loading machine
operators to 15 excess cases per thousand cutting machine operators.
For surface workers, reductions are projected of up to 3 excess cases
of PMF per thousand cleaning plant operators and utility men, 8 excess
cases of severe emphysema per thousand non-white cleaning plant
operators and utility men, and 3 excess cases of NMRD mortality by age
85 per thousand laborers.
The proposed rule would adjust dust concentration limits downward
to compensate for exposure hours in excess of 8 hours per shift, change
the definition of normal production shift, and require the use of
CPDMs. These proposed provisions would further reduce remaining risk
for such miners and result in improvements that would be greater than
those shown in Table 28. For a complete discussion of the benefits of
the proposed rule, see Chapter III of the PREA.
VI. Derivation and Distribution Table
Derivation Table
The following derivation table lists: (1) Each section number of
the proposed rule and (2) the section number of the existing standard
from which it is derived.
Derivation Table
------------------------------------------------------------------------
Proposed section Existing section
------------------------------------------------------------------------
70........................................ 70
70.1...................................... 70.1
70.2...................................... 70.2, 70.206, 70.207(f), new
70.100.................................... 70.100
70.100(a)................................. 70.100(a), new
70.100(b)................................. 70.100(b), new
70.101.................................... 70.101
70.101(a)................................. 70.101, new
70.101(b)................................. 70.101, new
70.201.................................... 70.201
70.201(a)................................. 70.201(a), new
70.201(b)................................. new
70.201(c)................................. new
70.201(d)................................. new
70.201(e)................................. 70.201(b), new
70.201(e)(1).............................. new
70.201(e)(2).............................. new
70.201(f)................................. new
70.201(g)................................. new
70.201(h)................................. 70.201(c), new
70.201(i)................................. new
70.201(j)................................. new
70.201(k)................................. new
70.202.................................... 70.202
70.202(a)................................. 70.202(a)
70.202(b)................................. 70.202(b), new
70.202(c)................................. new
70.202(d)................................. new
70.203.................................... 70.203
70.203(a)................................. 70.203(a)
70.203(b)................................. 70.203(b), new
70.203(c)................................. new
70.203(d)................................. new
70.204.................................... 70.204
70.204(a)................................. 70.204(a), new
70.204(b)................................. 70.204(b), new
70.204(c)................................. 70.204(d), new
70.204(c)(1).............................. 70.204(d)(2), new
70.204(c)(2).............................. 70.204(d)(3), new
70.204(c)(3).............................. 70.204(d)(4), new
70.204(c)(4).............................. 70.204(d)(5), new
70.204(c)(5).............................. 70.204(d)(1), new
70.204(d)................................. new
70.204(e)................................. 70.204(e)
70.205.................................... 70.205
70.205(a)................................. 70.205(a), new
[[Page 64470]]
70.205(b)................................. 70.205(b)
70.205(b)(1).............................. 70.205(b), 70.205(d)
70.205(b)(2).............................. 70.205(c), new
70.205(c)................................. new
70.206.................................... new
70.207.................................... 70.207, new
70.207(a)................................. 70.207(a), new
70.207(b)................................. 70.207(e)
70.207(b)(1).............................. 70.207(e)(1)
70.207(b)(2).............................. 70.207(e)(2)
70.207(b)(3).............................. 70.207(e)(3)
70.207(b)(4).............................. 70.207(e)(4)
70.207(b)(5).............................. 70.207(e)(5)
70.207(b)(6).............................. 70.207(e)(6)
70.207(b)(7).............................. 70.207(e)(7)
70.207(b)(8).............................. 70.207(e)(8)
70.207(b)(9).............................. 70.207(e)(9)
70.207(b)(10)............................. 70.207(e)(10)
70.207(c)................................. new
70.207(c)(1).............................. 70.207(b), new
70.207(c)(2).............................. new
70.207(d)................................. 70.207(d), new
70.207(e)................................. new
70.207(f)................................. 70.207(c)
70.207(g)................................. 70.201(d), new
70.207(g)(1).............................. 70.300, new
70.207(g)(2).............................. new
70.207(g)(3).............................. 70.201(d), new
70.207(h)................................. new
70.207(i)................................. new
70.207(i)(1).............................. new (70.300)
70.207(i)(2).............................. new
70.207(i)(3).............................. new
70.208.................................... new
70.208(a)................................. 70.207(a), new
70.208(a)(1).............................. 70.207(a), new
70.208(a)(2).............................. 70.207(a), new
70.208(b)................................. 70.207(e), new
70.208(b)(1).............................. 70.207(e)(1), new
70.208(b)(2).............................. 70.207(e)(2), new
70.208(b)(3).............................. 70.207(e)(3), new
70.208(b)(4).............................. 70.207(e)(4), new
70.208(b)(5).............................. 70.207(e)(5), new
70.208(b)(6).............................. 70.207(e)(6), new
70.208(b)(7).............................. 70.207(e)(7), new
70.208(b)(8).............................. 70.207(e)(8), new
70.208(b)(9).............................. 70.207(e)(9), new
70.208(b)(10)............................. 70.207(e)(10), new
70.208(c)................................. new
70.208(d)................................. new
70.208(e)................................. new
70.208(f)................................. 70.201(d), new
70.208(f)(1).............................. 70.300, new
70.208(f)(2).............................. 70.201(d), new
70.208(f)(3).............................. new
70.208(f)(4).............................. new
70.208(f)(5).............................. new
70.208(g)................................. new
70.208(g)(1).............................. new (70.300)
70.208(g)(2).............................. new
70.208(g)(3).............................. new
70.208(g)(4).............................. new
70.208(h)................................. new
70.209.................................... 70.208, new
70.209(a)................................. 70.208(a), new
70.209(b)................................. new
70.209(b)(1).............................. 70.208(b), new
70.209(b)(2).............................. new
70.209(c)................................. new
70.209(d)................................. 70.208(d)
70.209(e)................................. 70.201(d),new
70.209(e)(1).............................. 70.300, new
70.209(e)(2).............................. new
70.209(e)(3).............................. 70.201(d),new
70.209(f)................................. new
70.209(g)................................. new
70.209(g)(1).............................. 70.300, new
70.209(g)(2).............................. new
70.209(g)(3).............................. new
70.209(g)(4).............................. new
70.209(h)................................. 70.208(f)
70.210.................................... 70.209
70.210(a)................................. 70.209(a)
70.210(b)................................. 70.209(b)
70.210(c)................................. 70.209(c), new
70.210(d)................................. 70.209(d)
70.210(e)................................. 70.209(e)
70.210(f)................................. new
70.211.................................... 70.210
70.211(a)................................. 70.210(a)
70.211(a)(1).............................. 70.210(a)(1)
70.211(a)(2).............................. 70.210(a)(2), new
70.211(a)(3).............................. 70.210(a)(3), new
70.211(a)(4).............................. 70.210(a)(4), new
70.211(a)(5).............................. 70.210(a)(5)
70.211(a)(6).............................. 70.210(a)(6)
70.211(b)................................. 70.210(b)
70.211(c)................................. new
70.211(c)(1).............................. new
70.211(c)(1)(i)........................... new (70.210(a)(1))
70.211(c)(1)(ii).......................... new (70.210(a)(2))
70.211(c)(1)(iii)......................... new (70.210(a)(3))
70.211(c)(1)(iv).......................... new
70.211(c)(1)(v)........................... new (70.210(a)(5))
70.211(c)(1)(vi).......................... new (70.210(a)(6))
70.211(c)(1)(vii)......................... new
70.211(c)(1)(viii)........................ new
70.211(c)(2).............................. new
70.211(c)(3).............................. 70.210(b), new
70.212.................................... 70.220
70.212(a)................................. 70.220(a), new
70.212(b)................................. 70.220(b)
70.212(c)................................. new
71........................................ 71
71.1...................................... 71.1
71.2...................................... 71.2, 71.206, new
71.100.................................... 71.100
71.100(a)................................. 71.100
71.100(b)................................. new
71.100(c)................................. new
71.100(d)................................. new
71.101.................................... 71.101
71.101(a)................................. 71.101, new
71.101(b)................................. 71.101, new
71.201.................................... 71.201
71.201(a)................................. 71.201(a), new
71.201(b)................................. 71.201(b), new
71.201(b)(1).............................. new
71.201(b)(2).............................. new
71.201(c)................................. new
71.201(d)................................. new
71.201(e)................................. 71.201(c), new
71.201(f)................................. 71.201(e)
71.201(g)................................. new
71.201(h)................................. new
71.202.................................... 71.202
71.202(a)................................. 71.202(a)
71.202(b)................................. 71.202(b), new
71.202(c)................................. new
71.202(d)................................. new
71.203.................................... 71.203
71.203(a)................................. 71.203(a)
71.203(b)................................. 71.203(b), new
71.203(c)................................. new
71.203(d)................................. new
71.204.................................... 71.204
71.204(a)................................. 71.204(a), new
71.204(b)................................. 71.204(b), new
71.204(c)................................. 71.204(d), new
71.204(c)(1).............................. 71.204(d)(2), new
71.204(c)(2).............................. 71.204(d)(3), new
71.204(c)(3).............................. 71.204(d)(4), new
71.204(c)(4).............................. 71.204(d)(5), new
71.204(c)(5).............................. 71.204(d)(1), new
71.204(d)................................. new
71.204(e)................................. 71.204(e)
71.205.................................... 71.205
71.205(a)................................. 71.205(a), new
71.205(b)................................. 71.205(b), new
71.205(b)(1).............................. 71.205(b)
71.205(b)(2).............................. 71.205(c)
71.205(c)................................. new
71.206.................................... new
71.207.................................... 71.208, new
71.207(a)................................. 71.208(a), new
71.207(b)................................. new
71.207(c)................................. new
71.207(d)................................. 71.208(h), new
71.207(e)................................. 71.208(g)
71.207(f)................................. 71.208(e), new
71.207(g)................................. 71.208(f), new
71.207(h)................................. new
71.207(h)(1).............................. 71.208(b), new
71.207(h)(2).............................. new
71.207(i)................................. new
71.207(j)................................. 71.208(d)
71.207(k)................................. 71.201(d), new
71.207(k)(1).............................. new (70.300)
71.207(k)(2).............................. new
71.207(k)(3).............................. 71.201(d), new
71.207(l)................................. 71.300, new
71.207(m)................................. 71.208(c), new
71.207(n)................................. 71.208(c), new
71.207(n)(1).............................. 71.208(c), new
71.207(n)(2).............................. new
71.208.................................... 71.209
71.208(a)................................. 71.209(a)
71.208(b)................................. 71.209(b)
71.208(c)................................. 71.209(c), new
71.208(d)................................. 71.209(d)
71.208(e)................................. 71.209(e)
71.208(f)................................. new
71.209.................................... 71.210
71.209(a)................................. 71.210(a)
71.209(a)(1).............................. 71.210(a)(1)
71.209(a)(2).............................. 71.210(a)(2)
71.209(a)(3).............................. 71.210(a)(3), new
71.209(a)(4).............................. 71.210(a)(5)
71.209(b)................................. 71.210(b), new
71.209(c)................................. new
71.209(c)(1)(i)........................... new (71.210(a)(1))
71.209(c)(1)(ii).......................... new (71.210(a)(2))
71.209(c)(1)(iii)......................... new (71.210(a)(3))
71.209(c)(1)(iv).......................... new (71.210(a)(5))
71.209(c)(1)(v)........................... new
71.209(c)(1)(vi).......................... new
71.209(c)(2).............................. new (71.210(b))
71.210.................................... 71.220
71.210(a)................................. 71.220(a), new
71.210(b)................................. 71.220(b)
71.210(c)................................. new
71.300.................................... 71.300
71.300(a)................................. 71.300(a), new
71.300(a)(1).............................. new
71.300(a)(2).............................. new
71.300(a)(3).............................. new
[[Page 64471]]
71.300(a)(4).............................. new
71.300(b)................................. 71.300(b)
71.301.................................... 71.301
71.301(a)................................. 71.301(a)
71.301(a)(1).............................. 71.301(a)(1), new
71.301(a)(2).............................. 71.301(a)(2)
71.301(b)................................. 71.301(b), new
71.301(c)................................. 71.301(c)
71.301(d)................................. new
71.301(d)(1).............................. new
71.301(d)(2).............................. new
71.301(d)(3).............................. 71.301(d), new
71.301(e)................................. 71.301(e)
72.100.................................... new
72.700.................................... new (70.300)
72.700(a)................................. new (70.300)
72.700(b)................................. new
72.700(c)................................. new
72.701.................................... new (70.305)
72.800.................................... new
75.325(a)(2).............................. 75.325(a)(2), new
75.332(a)(1).............................. 75.332(a)(1), new
75.350(b)(3)(i)........................... 75.350(b)(3)(i)
75.350(b)(3)(i)(A)........................ 75.350(b)(3)(i)
75.350(b)(3)(i)(B)........................ 75.350(b)(3)(i), new
75.350(b)(3)(ii).......................... 75.350(b)(3)(ii), new
75.362(a)(2).............................. 75.362(a)(2), new
75.362(g)(2).............................. 75.362(g)(2), new
75.362(g)(2)(i)........................... 75.362(g)(2), new
75.362(g)(2)(ii).......................... new
75.362(g)(3).............................. new
75.362(g)(4).............................. new
75.371(f)................................. 75.371(f), new
75.371(f)(1).............................. new
75.371(f)(2).............................. new
75.371(f)(3).............................. new
75.371(f)(4).............................. new
75.371(j)................................. 75.371(j), new
75.371(t)................................. 75.371(t)
90........................................ 90
90.1...................................... 90.1, new
90.2...................................... 90.2, 90.206, new
90.3...................................... 90.3
90.3(a)................................... 90.3(a), new
90.3(b)................................... 90.3(b)
90.3(c)................................... 90.3(c)
90.3(d)................................... 90.3(d), new
90.3(e)................................... 90.3(e), new
90.3(f)................................... 90.3(f)
90.100.................................... 90.100
90.100(a)................................. 90.100
90.100(b)................................. new
90.101.................................... 90.101
90.101(a)................................. 90.101, new
90.101(b)................................. 90.101, new
90.102.................................... 90.102
90.102(a)................................. 90.102(a), new
90.102(b)................................. 90.102(b)
90.102(c)................................. 90.102(c)
90.103.................................... 90.103
90.103(a)................................. 90.103(a)
90.103(b)................................. 90.103(b)
90.103(c)................................. new
90.103(d)................................. 90.103(c)
90.103(e)................................. 90.103(d)
90.103(f)................................. 90.103(e)
90.103(g)................................. 90.103(f)
90.104.................................... 90.104
90.104(a)................................. 90.104(a)
90.104(a)(1).............................. 90.104(a)(1)
90.104(a)(2).............................. 90.104(a)(2), new
90.104(a)(3).............................. 90.104(a)(3), new
90.104(b)................................. 90.104(b)
90.104(c)................................. 90.104(c)
90.201.................................... 90.201, new
90.201(a)................................. 90.201(a), new
90.201(b)................................. 90.201(b), new
90.201(b)(1).............................. new
90.201(b)(2).............................. new
90.201(c)................................. 90.201(f)
90.201(c)(1).............................. 90.201(f)(1)
90.201(c)(2).............................. 90.201(f)(2)
90.201(c)(3).............................. 90.201(f)(3)
90.201(d)................................. new
90.201(e)................................. 90.201(e)
90.201(f)................................. new
90.201(g)................................. 90.201(c), new
90.201(h)................................. new
90.201(i)................................. new
90.202.................................... 90.202
90.202(a)................................. 90.202(a)
90.202(b)................................. 90.202(b), new
90.202(c)................................. new
90.202 (d)................................ new
90.203.................................... 90.203
90.203(a)................................. 90.203(a)
90.203(b)................................. 90.203(b), new
90.203(c)................................. new
90.203(d)................................. new
90.204.................................... 90.204
90.204(a)................................. 90.204(a), new
90.204(b)................................. 90.204(b), new
90.204(c)................................. 90.204(d), new
90.204(c)(1).............................. 90.204(d)(2), new
90.204(c)(2).............................. 90.204(d)(3), new
90.204(c)(3).............................. 90.204(d)(4), new
90.204(c)(4).............................. 90.204(d)(5), new
90.204(c)(5).............................. 90.204(d)(1), new
90.204(d)................................. new
90.204(e)................................. 90.204(e)
90.205.................................... 90.205
90.205(a)................................. 90.205(a), new
90.205(b)................................. 90.205(b)
90.205(b)(1).............................. 90.205(b), 90.205(d)
90.205(b)(2).............................. 90.205(c), new
90.205(c)................................. new
90.206.................................... new
90.207.................................... 90.207, new
90.207(a)................................. 90.207(a)
90.207(a)(1).............................. 90.207(a)(1)
90.207(a)(2).............................. 90.207(a)(2), new
90.207(a)(3).............................. 90.207(a)(3)
90.208.................................... 90.208, new
90.208(a)................................. 90.208(a), new
90.208(b)................................. new
90.208(b)(1).............................. 90.208(b), new
90.208(b)(2).............................. new
90.208(c)................................. new
90.208(d)................................. 90.208(c)
90.208(e)................................. 90.201(d), new
90.208(e)(1).............................. new (70.300)
90.208(e)(2).............................. new
90.208(e)(2)(i)........................... 90.201(d), new
90.208(e)(2)(ii).......................... new
90.208(f)................................. new
90.208(g)................................. new
90.208(g)(1).............................. new (70.300)
90.208(g)(2).............................. new
90.208(g)(3).............................. new
90.209.................................... new
90.209(a)................................. new
90.209(b)................................. new
90.209(c)................................. new
90.209(d)................................. new
90.209(e)................................. 90.201(d), new
90.209(e)(1).............................. new (70.300)
90.209(e)(2).............................. 90.201(d), new
90.209(e)(3).............................. 90.300(a), new
90.209(e)(4).............................. new
90.209(e)(5).............................. new
90.209(e)(6).............................. new
90.209(f)................................. new
90.210.................................... 90.209
90.210(a)................................. 90.209(a)
90.210(b)................................. 90.209(b)
90.210(c)................................. 90.209(c), new
90.210(d)................................. 90.209(d)
90.210(e)................................. 90.209(e)
90.210(f)................................. new
90.211.................................... 90.210
90.211(a)................................. 90.210(a)
90.211(a)(1).............................. 90.210(a)(1)
90.211(a)(2).............................. 90.210(a)(2), new
90.211(a)(3).............................. 90.210(a)(3), new
90.211(a)(4).............................. 90.210(a)(4), new
90.211(a)(5).............................. 90.210(a)(5)
90.211(a)(6).............................. 90.210(a)(6)
90.211(a)(7).............................. 90.210(a)(7), new
90.211(b)................................. 90.210(b)
90.211(c)................................. new
90.211(c)(1).............................. new
90.211(c(1)(i))........................... 90.210(a)(1)
90.211(c)(1)(ii).......................... 90.210(a)(2), new
90.211(c)(1)(iii)......................... 90.210(a)(3), new
90.211(c)(1)(iv).......................... new
90.211(c)(1)(v)........................... 90.210(a)(5)
90.211(c)(1)(vi).......................... 90.210(a)(6)
90.211(c)(1)(vii)......................... 90.210(a)(7), new
90.211(c)(1)(viii)........................ new
90.211(c)(1)(ix).......................... new
90.211(c)(2).............................. new
90.211(d)................................. 90.210(b), new
90.212.................................... 90.220
90.212(a)................................. 90.220 new
90.212(b)................................. new
90.300.................................... 90.300
90.300(a)................................. 90.300(a), new
90.300(b)................................. 90.300(b)
90.300(b)(1).............................. 90.300(b)(1)
90.300(b)(2).............................. 90.300(b)(2), new
90.300(b)(3).............................. 90.300(b)(3), new
90.300(b)(4).............................. 90.300(b)(4)
90.301.................................... 90.301
90.301(a)................................. 90.301(a)
90.301(a)(1).............................. 90.301(a)(1), new
90.301(a)(2).............................. 90.301(a)(2)
90.301(b)................................. 90.301(b), new
90.301(c)................................. 90.301(c)
90.301(d)................................. 90.301(d)
90.301(e)................................. 90.301(e)
------------------------------------------------------------------------
Distribution Table
The following distribution table lists each section number of the
existing standard and status of that section number in the proposed
rule.
Distribution Table
------------------------------------------------------------------------
Existing section Proposed section
------------------------------------------------------------------------
70.1...................................... 70.1
70.2...................................... 70.2 (revised)
70.100.................................... 70.100
[[Page 64472]]
70.100(a)................................. 70.100(a)(1)-(a)(4)
(revised)
70.100(b)................................. 70.100(b)(1)-(b)(2)
(revised)
70.101.................................... 70.101(a)-(b) (revised)
70.201.................................... 70.201 (revised)
70.201(a)................................. 70.201(a) (revised)
70.201(b)................................. 70.201(e) (revised)
70.201(c)................................. 70.201(h) (revised)
70.201(d)................................. 70.207(g) (revised),
70.208(f) (revised)
70.202.................................... 70.202
70.202(a)................................. 70.202(a)
70.202(b)................................. 70.202(b) (revised)
70.202(c)................................. Removed
70.203.................................... 70.203
70.203(a)................................. 70.203(a)
70.203(b)................................. 70.203(b) (revised)
70.203(c)................................. Removed
70.204.................................... 70.204
70.204(a)................................. 70.204(a) (revised)
70.204(b)................................. 70.204(b) (revised)
70.204(c)................................. Removed
70.204(d)................................. 70.204(c) (revised)
70.204(d)(1).............................. 70.204(c)(5) (revised)
70.204(d)(2).............................. 70.204(c)(1) (revised)
70.204(d)(3).............................. 70.204(c)(2) (revised)
70.204(d)(4).............................. 70.204(c)(3) (revised
70.204(d)(5).............................. 70.204(c)(4) (revised)
70.204(e)................................. 70.204(e)
70.205.................................... 70.205
70.205(a)................................. 70.205(a) (revised)
70.205(b)................................. 70.205(b), (b)(1) (revised)
70.205(c)................................. 70.205(b)(2) (revised)
70.205(d)................................. 70.205(b)(1)
70.206.................................... 70.2 (revised)
70.207.................................... 70.207 (revised)
70.207(a)................................. 70.207(a) (revised)
70.207(b)................................. 70.207(c)(1) (revised)
70.207(c)................................. 70.207(f) (revised)
70.207(d)................................. 70.207(d) (revised)
70.207(e)................................. 70.207(b) (revised)
70.207(e)(1).............................. 70.207(b)(1)
70.207(e)(2).............................. 70.207(b)(2)
70.207(e)(3).............................. 70.207(b)(3)
70.207(e)(4).............................. 70.207(b)(4)
70.207(e)(5).............................. 70.207(b)(5)
70.207(e)(6).............................. 70.207(b)(6)
70.207(e)(7).............................. 70.207(b)(7)
70.207(e)(8).............................. 70.207(b)(8)
70.207(e)(9).............................. 70.207(b)(9)
70.207(e)(10)............................. 70.207(b)(10)
70.207(f)................................. 70.2 (revised) (Mechanized
mining unit)
70.208.................................... 70.209 (revised)
70.208(a)................................. 70.209(a) (revised)
70.208(b)................................. 70.209(b)(1) (revised)
70.208(c)................................. 70.209(b)(2) (revised)
70.208(d)................................. 70.209(d) (revised)
70.208(e)................................. 70.2 (revised) (Designated
area)
70.208(f)................................. 70.209(h)
70.209.................................... 70.210
70.209(a)................................. 70.210(a)
70.209(b)................................. 70.210(b)
70.209(c)................................. 70.210(c) (revised)
70.209(d)................................. 70.210(d)
70.209(e)................................. 70.210(e)
70.210.................................... 70.211
70.210(a)................................. 70.211(a) (revised)
70.210(a)(1).............................. 70.211(a)(1)
70.210(a)(2).............................. 70.211(a)(2) (revised)
70.210(a)(3).............................. 70.211(a)(3) (revised)
70.210(a)(4).............................. 70.211(a)(4) (revised)
70.210(a)(5).............................. 70.211(a)(5)
70.210(a)(6).............................. 70.211(a)(6)
70.210(b)................................. 70.211(b)
70.220.................................... 70.212
70.220(a)................................. 70.212(a) (revised)
70.220(b)................................. 70.212(b)
70.300.................................... 72.700 (revised)
70.305.................................... 72.701
71.1...................................... 71.1
71.2...................................... 71.2 (revised)
71.100.................................... 71.100
71.101.................................... 71.101 (revised)
71.201.................................... 71.201 (revised)
71.201(a)................................. 71.201(a) (revised)
71.201(b)................................. 71.201(b) (revised)
71.201(c)................................. 71.201(e) (revised)
71.201(d)................................. 71.201(k) (revised)
71.201(e)................................. 71.201(f) (revised)
71.202.................................... 71.202
71.202(a)................................. 71.201(a)
71.202(b)................................. 71.202(b) (revised)
71.202(c)................................. Removed
71.203.................................... 71.203
71.203(a)................................. 71.203(a)
71.203(b)................................. 71.203(b) (revised)
71.203(c)................................. Removed
71.204.................................... 71.204
71.204(a)................................. 71.204(a) (revised)
71.204(b)................................. 71.204(b) (revised)
71.204(c)................................. Removed
71.204(d)................................. 71.204(c) (revised)
71.204(d)(1).............................. 71.204(c)(5) (revised)
71.204(d)(2).............................. 71.204(c)(1) (revised)
71.204(d)(3).............................. 71.204(c)(2) (revised)
71.204(d)(4).............................. 71.204(c)(3) (revised)
71.204(d)(5).............................. 71.204(c)(4) (revised)
71.204(e)................................. 71.204(e)
71.205.................................... 71.205
71.205(a)................................. 71.205(a) (revised)
71.205(b)................................. 71.205(b), 71.205(b)(1)
(revised)
71.205(c)................................. 71.205(b)(2) (revised)
71.206.................................... 71.2 (revised)
71.208.................................... 71.207 (revised)
71.208(a)................................. 71.207(a) (revised)
71.208(b)................................. 71.207(h)(1)
71.208(c)................................. 71.207(m)
71.208(d)................................. 71.207(j)
71.208(e)................................. 71.207(f) (revised)
71.208(f)................................. 71.207(g) (revised)
71.208(g)................................. 71.207(e)
71.208(h)................................. 71.207(d)
71.209.................................... 71.208
71.209(a)................................. 71.208(a)
71.209(b)................................. 71.208(b)
71.209(c)................................. 71.208(c) (revised)
71.209(d)................................. 71.208(d)
71.209(e)................................. 71.208(e)
71.210.................................... 71.209
71.210(a)................................. 71.209(a) (revised)
71.210(a)(1).............................. 71.209(a)(1)
71.210(a)(2).............................. 71.209(a)(2)
71.210(a)(3).............................. 71.209(a)(3) (revised)
71.210(a)(4).............................. Removed
71.210(a)(5).............................. 71.209(a)(4)
71.210(b)................................. 71.209(b) (revised)
71.220.................................... 71.210
71.220(a)................................. 71.210(a) (revised)
71.220(b)................................. 71.210(b)
71.300.................................... 71.300
71.300(a)................................. 71.300(a) (revised)
71.300(b)................................. 71.300(b)
71.301.................................... 71.301
71.301(a)................................. 71.301(a)
71.301(a)(1).............................. 71.301(a)(1) (revised)
71.301(a)(2).............................. 71.301(a)(2)
71.301(b)................................. 71.301(b) (revised)
71.301(c)................................. 71.301(c)
71.301(d)................................. 71.301(d) (revised)
71.301(e)................................. 71.301(e)
75.325(a)(2).............................. 75.325(a)(2) (revised)
75.332(a)(1).............................. 75.332(a)(1) (revised)
75.350(b)(3)(i)........................... 75.350(b)(3)(i) (revised)
75.350(b)(3)(ii).......................... 75.350(b)(3)(ii) (revised)
75.362(a)(2).............................. 75.362(a)(2) (revised)
75.362(g)(2).............................. 75.362(g)(2) (revised)
75.371(f)................................. 75.371(f) (revised)
75.371(j)................................. 75.371(j) (revised)
75.371(t)................................. 75.371(t) (revised)
90.1...................................... 90.1 (revised)
90.2...................................... 90.2 (revised)
90.3...................................... 90.3
90.3(a)................................... 90.3(a) (revised)
90.3(b)................................... 90.3(b)
90.3(c)................................... 90.3(c)
90.3(d)................................... 90.3(d) (revised)
90.3(e)................................... 90.3(e) (revised)
90.3(f)................................... 90.3(f)
90.100.................................... 90.100 (revised)
90.101.................................... 90.101 (revised)
90.102(a)................................. 90.102(a) (revised)
90.102(b)................................. 90.102(b)
90.102(c)................................. 90.102(c)
90.103(a)................................. 90.103(a)
90.103(b)................................. 90.103(b)
90.103(c)................................. 90.103(d)
90.103(d)................................. 90.103(e)
90.103(e)................................. 90.103(f)
90.103(f)................................. 90.103(g)
90.104.................................... 90.104
90.104(a)................................. 90.104(a)
90.104(a)(1).............................. 90.104(a)(1)
90.104(a)(2).............................. 90.104(a)(2) (revised)
90.104(a)(3).............................. 90.104(a)(3) (revised)
90.104(b)................................. 90.104(b)
90.104(c)................................. 90.104(c)
90.201.................................... 90.201 (revised)
90.201(a)................................. 90.201(a) (revised)
90.201(b)................................. 90.201(b) (revised)
90.201(c)................................. 90.201(g) (revised)
90.201(d)................................. 90.208(e) (revised),
90.209(e) (revised)
90.201(e)................................. 90.201(e)
90.201(f)................................. 90.201(c)
90.201(f)(1).............................. 90.201(c)(1)
90.201(f)(2).............................. 90.201(c)(2)
90.201(f)(3).............................. 90.201(c)(3)
90.202.................................... 90.202
90.202(a)................................. 90.202(a)
90.202(b)................................. 90.202(b) (revised)
90.202(c)................................. Removed
90.203.................................... 90.203
90.203(a)................................. 90.203(a)
90.203(b)................................. 90.203(b) (revised)
90.203(c)................................. Removed
90.204.................................... 90.204
[[Page 64473]]
90.204(a)................................. 90.204(a) (revised)
90.204(b)................................. 90.204(b) (revised)
90.204(c)................................. Removed
90.204(d)................................. 90.204(c) (revised)
90.204(d)(1).............................. 90.204(c)(5) (revised)
90.204(d)(2).............................. 90.204(c)(1) (revised)
90.204(d)(3).............................. 90.204(c)(2) (revised)
90.204(d)(4).............................. 90.204(c)(3) (revised)
90.204(d)(5).............................. 90.204(c)(4) (revised)
90.204(e)................................. 90.204(e)
90.205.................................... 90.205
90.205(a)................................. 90.205(a) (revised)
90.205(b)................................. 90.205(b), (b)(1) (revised)
90.205(c)................................. 90.205(b)(2) (revised)
90.205(d)................................. 90.205(b)(1)
90.206.................................... 90.2 (revised)
90.207.................................... 90.207 (revised)
90.207(a)................................. 90.207(a)
90.207(a)(1).............................. 90.207(a)(1)
90.207(a)(2).............................. 90.207(a)(2) (revised)
90.207(a)(3).............................. 90.207(a)(3)
90.208.................................... 90.208 (revised)
90.208(a)................................. 90.208(a) (revised)
90.208(b)................................. 90.208(b)(1) (revised)
90.208(c)................................. 90.208(d) (revised)
90.209.................................... 90.210
90.209(a)................................. 90.210(a)
90.209(b)................................. 90.210(b)
90.209(c)................................. 90.210(c) (revised)
90.209(d)................................. 90.210(d)
90.209(e)................................. 90.210(e)
90.210.................................... 90.211
90.210(a)................................. 90.211(a) (revised)
90.210(a)(1).............................. 90.211(a)(1)
90.210(a)(2).............................. 90.211(a)(2) (revised)
90.210(a)(3).............................. 90.211(a)(3) (revised)
90.210(a)(4).............................. 90.211(a)(4) (revised)
90.210(a)(5).............................. 90.211(a)(5)
90.210(a)(6).............................. 90.211(a)(6)
90.210(a)(7).............................. 90.211(a)(7) (revised)
90.210(b)................................. 90.211(b)
90.220.................................... 90.212, 90.212(a) (revised)
90.300.................................... 90.300
90.300(a)................................. 90.300(a) (revised)
90.300(b)................................. 90.300(b)
90.300(b)(1).............................. 90.300(b)(1)
90.300(b)(2).............................. 90.300(b)(2) (revised)
90.300(b)(3).............................. 90.300(b)(3) (revised)
90.300(b)(4).............................. 90.300(b)(4)
90.301.................................... 90.301
90.301(a)................................. 90.301(a)
90.301(a)(1).............................. 90.301(a)(1) (revised)
90.301(a)(2).............................. 90.301(a)(2)
90.301(b)................................. 90.301(b) (revised)
90.301(c)................................. 90.301(c)
90.301(d)................................. 90.301(d)
90.301(e)................................. 90.301(e)
------------------------------------------------------------------------
VII. Executive Order 12866
Executive Order (E.O.) 12866 requires that regulatory agencies
assess both the costs and benefits of regulations. To comply with E.O.
12866, MSHA has prepared a Preliminary Regulatory Economic Analysis
(PREA) for this proposed rule. The PREA contains supporting data and
explanation for the summary materials presented in this preamble,
including the covered mining industry, costs and benefits, feasibility,
small business impacts, and paperwork. The PREA can be accessed
electronically at http://www.msha.gov/rea.htm. A copy of the PREA can
be obtained from MSHA's Office of Standards, Regulations and Variances
at the address in the ADDRESSES section of this preamble. MSHA requests
comments on all estimates of costs and benefits presented in this
preamble and in the PREA, and on the data and assumptions the Agency
used to develop estimates.
Under E.O. 12866, a significant regulatory action is one meeting
any of a number of specified conditions, including the following:
Having an annual effect on the economy of $100 million or more,
creating a serious inconsistency or interfering with an action of
another agency, materially altering the budgetary impact of
entitlements or the rights of entitlement recipients, or raising novel
legal or policy issues. Based on the PREA, MSHA has determined that
this proposed rule would not have an annual effect of $100 million or
more in terms of compliance costs to the economy and therefore it is
not an economically significant regulatory cost action pursuant to
section 3(f) of Executive Order 12866. However, benefit effects of the
proposed rule are likely to exceed $100 million and would be
economically significant in terms of benefits.
A. Population at Risk
The proposed rule would apply to all underground and surface coal
mines in the United States. For 12 months ending January 2010, there
was an average of 424 active underground coal mines employing
approximately 40,300 miners (excluding office workers) and 1,123 active
surface coal mines employing approximately 32,300 miners (excluding
office workers).
B. Benefits
This section includes a summary of the health risks under the
existing standard; estimated health risks under the proposed rule; and
the estimated benefits resulting from proposed changes. The primary
benefit of the proposed rule is the reduction of occupational lung
disease among coal miners by improving the existing program to control
respirable coal mine dust and quartz, and reducing miners' exposure to
these hazards.
Three documents that examined the program to control respirable
coal mine dust in U.S. mines were MSHA's Respirable Dust Task Group
Report, the National Institute for Occupational Safety and Health's
(NIOSH) Criteria Document on Occupational Exposure to Respirable Coal
Mine Dust, and the Report of the Secretary of Labor's Advisory
Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers.
While recognizing that significant progress had been made to reduce
respirable coal mine dust levels in coal mines, these documents
concluded that there are existing practices in the dust program that
should be changed to provide miners with increased health protection.
This proposed rule would address many of the recommendations made in
those documents. The primary benefit of the proposed rule is the
reduction of occupational lung disease (e.g., coal workers'
pneumoconiosis (CWP), progressive massive fibrosis (PMF), silicosis,
and chronic obstructive pulmonary disease (COPD)) among coal miners.
This reduction results from improving the existing program to control
respirable coal mine dust and quartz, and reducing miners' exposure to
these hazards. These adverse health effects are considered collectively
to be non-malignant (non-cancerous) respiratory diseases (NMRD).
MSHA based its estimate of benefits on the 2010 Quantitative Risk
Assessment (QRA) developed specifically to support this proposed rule.
The 2010 QRA focuses on the effects of the proposed lowering of the
standard to 1.0 mg/m\3\ for most miners (0.5 mg/m\3\ for part 90
miners) and the proposed use of single shift samples to determine
noncompliance.
To estimate the benefits of the proposed rule, the QRA compared the
risks for two hypothetical cohorts of miners with the same occupation/
coal rank distribution. The cohort designed to characterize risks to
current workforce was assigned 45-year lifetime exposures based on
current monitoring data. The comparison cohort was assigned 45-year
lifetime exposures designed to represent risks associated with two
provisions of the proposed rule (i.e., lowering the limit from 2.0 mg/
m\3\ to 1.0 mg/m\3\ and basing determinations of noncompliance on
single samples rather than the average of 5 samples). Since the two
cohorts being compared are independent, it is important to note two
important caveats: (1) No benefits were projected for slowing or
stopping the progression of disease among the population that has
experienced current (or historical) exposures during their working
lifetime; and (2) due to the latency between exposure and disease,
especially for such endpoints as severe emphysema, a
[[Page 64474]]
large portion of the benefits estimated by this analysis would not be
expected to accrue for many years into the future.
Based upon this analysis, MSHA estimates that over a 45-year
working lifetime, two provisions of the proposed rule (i.e., lowering
the limit from 2.0 mg/m\3\ to 1.0 mg/m\3\ and basing determinations of
noncompliance on single samples rather than the average of 5 samples)
would result in the prevention of the adverse health effects shown in
Table VII-1.
Table VII-1--Estimated Number of Adverse Health Effects Prevented Over 45 Years From Two Provisions of the
Proposed Rule
[Lowering the limit from 2.0 mg/m\3\ to 1.0 mg/m\3\ and basing determinations of noncompliance on single
samples]
----------------------------------------------------------------------------------------------------------------
Severe Deaths from
CWP 1+ CWP 2+ PMF emphysema NMRD
----------------------------------------------------------------------------------------------------------------
Number of Cases Prevented Over a 1,301 985 641 556 106
45-Year Work Life..............
----------------------------------------------------------------------------------------------------------------
MSHA projects that there would be additional reductions in cases of
CWP, PMF, severe emphysema, and NMRD resulting from other proposed
changes. If the proposed requirement for full-shift sampling and the
proposed definition of normal production shift had been in effect in
2009, the amount of dust on the samples would have been higher because
of the longer time and the higher levels of production. Lowering
exposures from these higher levels to the levels being proposed would
result in additional benefits beyond those associated with the actual
recorded sampling results. MSHA used additional data from the
feasibility assessment to extrapolate the further impact of these two
provisions.
Table VII-2--Estimated Number of Adverse Health Effects Prevented From Four Provisions of the Proposed Rule
[Lowering the limit from 2.0 mg/m\3\ to 1.0 mg/m\3\, two changes to the sampling strategy and the revised
definition of normal production shift]
----------------------------------------------------------------------------------------------------------------
Severe Deaths from
CWP 1+ CWP 2+ PMF emphysema NMRD
----------------------------------------------------------------------------------------------------------------
Number of Cases Prevented Over a 1,606 1,216 791 687 131
45[dash]Year Work Life.........
----------------------------------------------------------------------------------------------------------------
MSHA did not quantify the benefits associated with several
provisions of the proposed rule (e.g., sampling the designated
occupations (DOs) and Part 90 miners on every production shift using
the CPDM, periodic examinations, expanding the Part 90 option to
surface miners). MSHA also projects that there would be reductions in
cases of other adverse health effects that result from exposure to
respirable coal mine dust, such as silicosis and chronic bronchitis,
which the Agency has not quantified.
More detailed information about how MSHA estimated benefits is
available in the Preliminary Regulatory Economic Analysis (PREA)
supporting this proposed rule. Both the PREA and the 2010 QRA are
available on MSHA's Web site, at http://www.msha.gov/rea.htm and http://www.msha.gov/regs/QRA/CoalDust2010.pdf, respectively.
To estimate the monetary values of the reductions in cases of CWP
1+, CWP 2+, PMF, severe emphysema and deaths from NMRD, MSHA performed
an analysis of the imputed value of illnesses and fatalities avoided
based on a willingness-to-pay approach. This approach relies on the
theory of compensating wage differentials (i.e., the wage premium paid
to workers to accept the risk associated with various jobs) in the
labor market. A number of studies have shown a correlation between
higher job risk and higher wages, suggesting that employees demand
monetary compensation in return for incurring a greater risk of illness
or fatality.
Viscusi & Aldy (2003) conducted an analysis of studies that use a
willingness-to-pay methodology to estimate the imputed value of life-
saving programs (i.e., meta-analysis) and found that each fatality
avoided was valued at approximately $7 million and each lost work-day
injury was approximately $50,000 in 2000 dollars. Using the GDP
Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an
estimate of $8.7 million for each fatality avoided and $62,000 for each
injury avoided in 2009 dollars. MSHA is using the $8.7 million estimate
for the value of a death prevented and $62,000 for each case of CWP 1+
or CWP 2+ prevented. This value of a statistical life (VSL) estimate is
within the range of the substantial majority of such estimates in the
literature ($1 million to $10 million per statistical life), as
discussed in OMB Circular A-4 (OMB, 2003).
Given the disabling consequences of PMF and severe emphysema, MSHA
does not believe that limiting the value to the estimate for lost
workday injuries is appropriate. Instead, MSHA based the value of a
case of PMF and severe emphysema prevented on the work of Magat,
Viscusi & Huber (1996), which estimated the value of a non-fatal cancer
avoided. The Occupational Safety and Health Administration (OSHA) used
this approach in the Final Economic Analysis (FEA) supporting its
hexavalent chromium final rule, and Environmental Protection Agency
(EPA) used this approach in its Stage 2 Disinfectants and Disinfection
Byproducts water rule (EPA, 2003). Although PMF and severe emphysema
are not non-fatal cancers, MSHA believes that they have a similar
impact on the quality of life and would thus result in similar
valuations. Based on Magat, Viscusi & Huber (1996), EPA valued the
prevention of a case of non-fatal cancer at 58.3 percent of the value
of a fatal cancer avoided. MSHA estimates the value of a case of PMF or
severe emphysema prevented to be $5.1 million ($5.1 million = 58.3
percent of $8.7 million).
Although MSHA is using the willingness-to-pay approach as the basis
for monetizing the expected benefits of the proposed rule, the Agency
does so with several reservations, given the methodological
difficulties involved in estimating the compensating wage differentials
(see Hintermann, Alberini and Markandya, 2008). Furthermore, these
estimates pooled across different industries may not capture the unique
[[Page 64475]]
circumstances faced by coal miners. For example, some have suggested
that VSL models be disaggregated to account for different levels of
risk, as might occur in coal mining (see Sunstein, 2004). In addition,
coal miners may have few options of alternative employers and in some
cases only one employer (near-monopsony or monopsony) that may depress
wages below those in a more competitive labor market.
MSHA developed the estimates in Table VII-3 by multiplying the
number of adverse health effects in Tables VII-1 and VII-2 by the
monetized value of each adverse health effect.
Table VII-3--Estimated Value of Adverse Health Effects Prevented Over a 45-Years \1\ Work Lifetime
[Millions of 2009 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Severe Deaths from
CWP 1+ CWP 2+ PMF emphysema NMRD Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits Based Upon Table VII-1 (i.e., Based on 2010 QRA)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underground and Part 90 Miners.......................... 66 51 2,815 2,198 653 5,783
Surface Miners.......................................... 14 10 454 638 270 1,386
-----------------------------------------------------------------------------------------------
Total............................................... 80 61 3,269 2,836 923 7,169
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits Based Upon Table VII-2 (i.e. Includes Additional Provisions Extrapolated From 2010 QRA Results)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underground and Part 90 Miners.......................... 82 63 3,467 2,707 804 7,123
Surface Miners.......................................... 18 12 567 797 337 1,731
Total............................................... 100 75 4,034 3,504 1,141 8,854
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Estimate is for a cohort of workers who begin working in mines after the proposed changes are in place.
The monetized benefits in Table VII-3 cover a 45-year period. When
estimating the annual benefits, it is necessary to take the timing into
account of when the health benefits accrue. However, it is quite
difficult to gauge the timing of reductions in chronic diseases that
may not develop until years after initial exposure and whose
progression may not be instantly stopped even if exposure were
completely eliminated. MSHA did not have the data necessary to project
the timing of CWP and related diseases. Furthermore, MSHA does not have
data on the historical exposures of the current workforce of coal
miners; they have already been exposed to various levels of respirable
coal mine dust and some lung damage has invariably already been done.
In the absence of this data and the information on the latency and
cessation lags, MSHA estimated the monetized benefits under two
alternative assumptions to illustrate some of the uncertainty in its
estimates.
First, MSHA made the assumption that benefits begin
immediately and that annual benefits equal lifetime benefits divided by
45 years. This assumption is equivalent to assuming that the benefits
begin to accrue in the first year after the provisions are put into
effect, which MSHA admits is highly unrealistic.
Second, MSHA assumed that no benefits would occur for the
first 10 years and that the annualized benefit for each of the next 35
years would be equal to the projected benefits divided by 35 years.
The impact of each of these assumptions is calculated using a 7
percent discount rate, consistent with OMB's Circular A-4.
Table VII-4--Annualized Benefits
[Millions of 2009 dollars]
------------------------------------------------------------------------
7% Discount rate, 45
years
Distribution assumptions -------------------------
2 4
provisions provisions
------------------------------------------------------------------------
Immediate, evenly distributed
------------------------------------------------------------------------
Underground/Part 90........................... $128.5 $158.3
Surface....................................... 30.8 38.5
-------------------------
Total....................................... 159.3 196.8
------------------------------------------------------------------------
10-year latency, evenly distributed
------------------------------------------------------------------------
Underground/Part 90........................... 79.9 98.5
Surface....................................... 19.2 24.0
-------------------------
Total....................................... 99.1 122.4
------------------------------------------------------------------------
The analysis numbers presented in Table VII-4 might be viewed as
incomplete estimates because they do not include the potential impacts
of other provisions of the proposed rule. In addition, MSHA's estimates
are based on a series of simplifying assumptions. The impact of these
assumptions on the total benefits depends on the degree of the mismatch
between the assumption and reality. Unfortunately, MSHA does not have
the data to quantify this uncertainty. However, the impact of
assumptions about the timing of the benefits probably has the most
significant impact on the estimated monetized benefits.
C. Compliance Costs
This section presents MSHA's estimates of costs that would be
incurred by underground and surface coal operators to comply with the
proposed coal mine dust rule. These costs are based on the assessment
of MSHA staff of the most likely actions that would be necessary to
comply with the proposed rule. MSHA acknowledges that in rare
instances, after taking these projected actions, some mine operators
may need to take additional measures to comply. In order to illustrate
the full range of possible compliance costs, this section also includes
a discussion of three potential situations where some operators could
incur additional costs. All three of the following situations are in
underground coal mines: (1) Longwall mines that have two entries; (2)
mines that have multiple MMUs on a single split of air; and (3) mines
operating under reduced respirable coal dust standards below 1.0 mg/
m\3\ due to the presence of quartz.
MSHA presents two values for the engineering and work practice
estimates and the total cost estimates for underground coal mines. The
lower value represents MSHA's most likely estimate. The higher value
includes additional costs for those rare instances where some operators
after taking these actions may encounter implementation issues as they
attempt to comply with the proposed requirements and need to take
additional measures to comply with the proposed standard.
MSHA estimates that the first year cost of the proposed rule would
be approximately $72.4 to $93.2 million
[[Page 64476]]
and the annualized cost of the proposed rule would be approximately
$40.4 to $44.5 million.
The estimated first year costs of the proposed rule for underground
coal mine operators would be approximately $63.6 to $84.4 million.
Costs associated with the proposed requirement to use CPDMs ($51.5
million) and upgrading and maintaining existing engineering controls
and work practices ($12.6 to $33.4 million) represent the most
significant first year costs for underground coal operators.
The first year costs of the proposed rule for surface coal mine
operators would be approximately $8.8 million. The proposed expansion
of the part 90 transfer option to surface miners represents the most
significant first year cost for surface operators.
MSHA estimates that at a 7% discount rate, the annualized costs of
the proposed rule for underground coal mine operators would be
approximately $35.6 to 39.7 million. Costs associated with the proposed
requirement to use CPDMs ($24.8 million) and upgrading and maintaining
existing engineering controls and work practices ($5.1 to 9.1 million)
represent the most significant annualized costs for underground coal
operators.
MSHA estimates that at a 7% discount rate, the annualized costs of
the proposed rule for surface coal operators would be approximately
$4.8 million. Costs associated with the proposed expansion of the part
90 transfer option to surface miners ($1.9 million) represent 40
percent of the total annualized costs for surface operators.
D. Net Benefits
This section presents a summary of estimated benefits and costs of
the proposed rule for informational purposes only. Under the Mine Act,
MSHA is not required to use estimated net benefits as the basis for its
decision. MSHA's estimates suggest, however, that net benefits are
positive, with (1) economically significant estimated annualized
benefits ranging from $99 to $197 million and (2) estimated annualized
costs ranging from $40 to $44 million. The estimates of costs and
benefits are only roughly comparable due to both limitations in the
data and different underlying assumptions.
The annualized dollar value of the benefits MSHA estimated range
from (1) a low of $99 million per year for only two provisions of the
proposed rule and an assumption of a 10 year latency period at a
discount rate of 7% to (2) a high of $197 million per year for four of
the provisions of the proposed rule and an assumption of no latency.
These estimates are both incomplete and highly uncertain because they
do not include the potential impacts of other provisions of the
proposed rule and because MSHA does not have the data necessary to
either (a) calculate benefits to those with historical exposures and
pre-existing conditions or (b) estimate how long into the future it
will be until the benefits of this proposal might begin to accrue. With
respect to the latter, the comparison of benefits streams from assuming
no latency to assuming a ten year latency highlights the degree of
uncertainty. While an estimate of no latency is unrealistic, so are the
implicit assumptions that there would be no benefits from the
provisions that were not included in the analysis and no benefits would
accrue to those with significant historical exposures. Thus, these
estimates encompass a significant amount of uncertainty. MSHA requests
comments on methods to both improve the comprehensiveness of the
benefits estimates and better characterize timing of the stream of
benefits.
Table VII-5--Annualized Benefits 7% Discount Rate
[Millions of 2009 dollars]
------------------------------------------------------------------------
2 4
Distribution assumptions provisions provisions
------------------------------------------------------------------------
Immediate, evenly distributed
------------------------------------------------------------------------
Underground/Part 90........................... $128.5 $158.3
Surface....................................... 30.8 38.5
-------------------------
Total..................................... 159.3 196.8
------------------------------------------------------------------------
10-year latency, evenly distributed
------------------------------------------------------------------------
Underground/Part 90........................... 79.9 98.5
Surface....................................... 19.2 24.0
Total..................................... 99.1 122.4
------------------------------------------------------------------------
The annualized costs MSHA estimated range from $40.4 to $44.5
million. The lower value represents MSHA's most likely estimate. The
higher value includes additional costs for those rare instances where
some operators of underground mines may encounter implementation issues
as they attempt to comply with the proposed requirements and may need
to take additional measures to comply with the proposed standard. MSHA
requests comments on the cost estimates and solicits information on
data sources to better characterize the cost range.
Table VII-6--Annualized Costs of Proposed Rule 7% Discount Rate
[Millions of 2009 dollars]
----------------------------------------------------------------------------------------------------------------
1-19 20-500 501 + Totals
----------------------------------------------------------------------------------------------------------------
Most Likely Estimated Costs
----------------------------------------------------------------------------------------------------------------
Underground Operators........................... $1.6 $29.6 $35.6
Surface Operators............................... 1.1 3.3 0.4 4.8
Total....................................... 2.7 32.9 4.8 40.4
----------------------------------------------------------------------------------------------------------------
Most Likely Estimated Costs plus Additional Costs for Rare Situations
----------------------------------------------------------------------------------------------------------------
Underground Operators........................... 1.6 32.5 5.6 39.7
Surface Operators............................... 1.1 3.3 0.4 4.8
Total....................................... 2.7 35.8 6.0 44.5
----------------------------------------------------------------------------------------------------------------
The range of benefits and costs estimated by MSHA do not correspond
to the same assumptions: The benefit range corresponds to assumptions
about latency periods while the cost range corresponds to assumptions
about whether some mines may incur additional costs. Thus, the
probability that the benefits will be at the high end of the benefit
distribution is entirely independent of the probability that the costs
will be at the high end of the cost distribution. A comparison of
benefits and costs, therefore, encompasses a broad range of independent
assumptions.
VIII. Feasibility
Although MSHA has concluded that the requirements of the proposed
rule would be both technologically and
[[Page 64477]]
economically feasible, MSHA has included a phase-in period for two of
the major provisions to facilitate implementation of the proposal. The
Agency's actions are discussed in more detail below.
A. Technological Feasibility
Based on both Agency and mine operator data, MSHA believes that
this proposed rule is technologically feasible. Data show that not only
are mine operators keeping miners' exposures at or below the levels
required under the existing standards, but dust exposures at most
operations average less than 1.0 mg/m3. Based on these data, the
majority of miners' exposures are at or below the limits in the
proposed rule. MSHA understands that these data reflect measurements
under the existing sampling program and that requirements under the
proposed rule (e.g., use of single full-shift samples to determine
noncompliance, change in the definition of normal production shift)
would result in higher measured exposures compared to the existing
sampling program. However, existing engineering controls including
ventilation, sprays, and environmentally controlled cabs along with
changes in work practices can be used to further reduce dust levels.
To facilitate operator implementation of the requirements in the
proposed rule related to the lower exposure limits, MSHA has included a
24-month phase-in period to allow mine operators time to come into
compliance. During this phase-in period, MSHA will work with the mining
industry to help them identify, develop, and implement feasible
engineering controls, and train miners and supervisors in new
technology.
The proposal would require implementation of new and improved dust
monitoring technology, the CPDM. The proposal would require the
operator to use the CPDM to sample certain underground occupations and
part 90 miners. To facilitate implementation of use of CPDMs, MSHA has
proposed a 12- and 18-month phase-in period, unless otherwise notified
by the Secretary. MSHA believes that the proposed phase-in periods
would allow manufacturers enough time to produce the necessary quantity
of CPDMs and MSHA and operators enough time to train necessary
personnel in the use and care of the device. The Agency recognizes that
availability of the device may present logistical and other issues at
the time the final rule becomes effective. The Agency intends to
address the issue of availability in two ways. First, the proposal
would require the use of the CPDM to sample (1) the Designated
Occupation in each MMU and Part 90 miners, and (2) each Other
Designated Occupation, within a 12-month and 18-month period,
respectively, unless notified by the Secretary. If, during the phase-in
periods, MSHA determines that there will be logistical and feasibility
issues surrounding the availability of CPDMs by the time the final rule
becomes effective, the Agency will, through publication in the Federal
Register, notify the public of the Agency's plans. Second, assuming no
logistical or feasibility issues concerning the availability of CPDMs,
and depending on manufacturer projections, if CPDMs are not available
in sufficient quantities, MSHA will accept, as good faith evidence of
compliance with the final rule, a valid, bona fide, written purchase
order with a firm delivery date for the CPDMs.
The Agency has specifically included in the preamble discussion a
request for comment on the proposed phase-in periods of the two
proposed provisions: (1) Lowering the respirable dust limits; and (2)
requiring use of CPDMs. Specifically, on phase-in periods related to
CPDMs, the Agency requests that comments address the time period and
the Agency's intent with respect to availability of CPDMs. The Agency
asks that commenters be specific in their comments, and include
rationale for suggested alternatives.
B. Economic Feasibility
MSHA has traditionally used a revenue screening test--whether the
annualized compliance costs of a regulation are less than 1 percent of
revenues, or are negative (i.e., provide net cost savings)--to
establish presumptively that compliance with the regulation is
economically feasible for the mining industry. Based upon this test,
MSHA has concluded that the requirements of the proposed rule are
economically feasible. The annualized compliance costs of the proposed
rule to underground coal mine operators are $35.6 to 39.7 million,
which are approximately 0.2 percent of total annual revenue of $17
billion ($39.7 million/$17 billion) for all underground coal mines. The
annualized compliance cost of the proposed rule to surface coal mine
operators is $4.8 million, which is approximately 0.03 percent of total
annual revenue of $16.6 billion ($5.3 million/$16.6 billion) for all
surface coal mines. Since the estimated compliance costs for both
underground and surface coal mines are below one percent of their
estimated annual revenue, MSHA concludes that compliance with the
provisions of the proposed rule would be economically feasible for the
coal industry.
IX. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), MSHA has analyzed the compliance cost impact of the proposed
rule on small entities. Based on that analysis, MSHA has determined and
certifies that the proposed rule would not have a significant economic
impact on a substantial number of small entities in terms of compliance
costs. Therefore, the Agency is not required to develop an initial
regulatory flexibility analysis.
The factual basis for this certification is presented in full in
Chapter V of the PREA and in summary form below.
A. Definition of a Small Mine
Under the RFA, in analyzing the impact of a rule on small entities,
MSHA must use the Small Business Administration's (SBA's) definition
for a small entity, or after consultation with the SBA Office of
Advocacy, establish an alternative definition for the mining industry
by publishing that definition in the Federal Register for notice and
comment. MSHA has not established an alternative definition, and is
required to use SBA's definition. The SBA defines a small entity in the
mining industry as an establishment with 500 or fewer employees.
MSHA has also examined the impact of the proposed rule on mines
with fewer than 20 employees, which MSHA and the mining community have
traditionally referred to as ``small mines.'' These small mines differ
from larger mines not only in the number of employees, but also in
economies of scale in material produced, in the type and amount of
production equipment, and in supply inventory. Therefore, their costs
of complying with MSHA's rules and the impact of the agency's rules on
them will also tend to be different. This analysis complies with the
requirements of the RFA for an analysis of the impact on ``small
entities'' while continuing MSHA's traditional definition of ``small
mines.''
B. Factual Basis for Certification
MSHA's analysis of the economic impact on ``small entities'' begins
with a ``screening'' analysis. The screening compares their estimated
costs of the proposed rule for small entities to the estimated
revenues. When estimated costs are less than one percent of
[[Page 64478]]
estimated revenues (for the size categories considered), MSHA believes
it is generally appropriate to conclude that there is no significant
economic impact on a substantial number of small entities. If estimated
costs are equal to or exceed one percent of revenues, further analysis
may be warranted.
Revenue for underground and surface coal mines is derived from data
on coal prices and tonnage. The 2008 price of coal was $51.35 per short
ton for underground coal and $22.35 per short ton for surface coal.\2\
---------------------------------------------------------------------------
\2\ U.S. DOE, EIA, ``Annual Coal Report 2009,'' Table 28,
October 2009.
---------------------------------------------------------------------------
Total underground coal production in 2009 was approximately 5
million short tons for mines with 1-19 employees. Multiplying tons by
the 2008 price per ton, 2009 underground coal revenue was $259 million
for mines with 1-19 employees. Total underground coal production in
2009 was approximately 242 million short tons for mines with 1-500
employees. Multiplying tons by the 2008 price per ton, 2009 underground
coal revenue was $12.4 billion for mines with 1-500 employees. Total
underground coal production in 2009 was approximately 332 million tons.
Multiplying tons by the 2008 price per short ton, total estimated
revenue in 2009 for underground coal production was $17.0 billion.
The estimated annualized cost of the proposed rule for underground
coal mines with 1-19 employees is approximately $1.6 million, or
approximately $20,000 per mine. This is equal to approximately 0.63
percent of annual revenues. MSHA estimates that some mines might
experience costs somewhat higher than the average per mine in their
size category while others might experience lower costs.
When applying SBA's definition of a small mine, the estimated
annualized cost of the proposed rule for underground coal mines with 1-
500 employees is approximately $34.1 million, or approximately $82,800
per mine. This is equal to approximately 0.28 percent of annual
revenue.
Based on this analysis, MSHA has determined that the proposed rule
will not have a significant economic impact in terms of compliance
costs on a substantial number of small underground coal mines.
Total surface coal production in 2009 was approximately 19.7
million short tons for mines with 1-19 employees. Multiplying tons by
the 2008 price per ton, 2009 surface coal revenue was $441 million for
mines with 1-19 employees. Total surface coal production in 2009 was
approximately 495 million short tons for mines with 1-500 employees.
Multiplying tons by the 2008 price per ton, 2009 surface coal revenue
was $11.1 billion for mines with 1-500 employees. Total surface coal
production in 2009 was approximately 743 million short tons.
Multiplying tons by the 2008 price per ton, total estimated revenue in
2009 for surface coal production was $16.6 billion.
The estimated annualized cost of the proposed rule for surface coal
mines with 1-19 employees is approximately $1.1 million, or
approximately $1,800 per mine. This is equal to approximately 0.25
percent of annual revenues. MSHA estimates that some mines might
experience costs somewhat higher than the average per mine in their
size category while others might experience lower costs.
When applying SBA's definition of a small mine, the estimated
annualized cost of the proposed rule for surface coal mines with 1-500
employees is approximately $4.4 million, or approximately $4,000 per
mine. This is equal to approximately 0.04 percent of annual revenue.
Based on this analysis, MSHA has determined that the proposed rule
will not have a significant economic impact in terms of compliance
costs on a substantial number of small surface coal mines. Since the
annualized costs of the proposed rule are less than one percent of
annual revenue for both small underground and surface coal mines, as
defined by SBA, MSHA has certified that the proposed rule would not
have a significant impact on a substantial number of small mining
entities, as defined by SBA. However, MSHA has provided, in the PREA
accompanying this rule, a complete analysis of the cost impact on this
category of mines.
X. Paperwork Reduction Act of 1995
A. Summary
This proposed rule contains changes that would affect the burden in
existing paperwork packages with OMB Control Numbers 1219-0011, 1219-
0048, and 1219-0088. The proposed rule also contains new burden for
collection requirements that are listed in Table X-1. This proposed
rule would result in 120,864 burden hours and related costs of
approximately $10.2 million in the first year the rule is in effect. In
the second year the rule is in effect, the proposed rule would result
in 156,103 burden hours and related costs of approximately $13.4
million. In the third year the rule is in effect, the proposed rule
would result in 162,267 burden hours and related costs of approximately
$14 million.
Table X-1--New Burden for Information Collection Requirements in the
Proposed Rule
------------------------------------------------------------------------
30 CFR Part Proposed sections
------------------------------------------------------------------------
Part 70........................... 70.201(g), (i), (k).
70.206(a), (a)(1), (a)(3), (c),
(c)(1), (c)(3), (d).
70.207(c)(2), (g)(2), (h), (i)(3).
70.208(f)(3), (f)(4), (f)(5),
(g)(3), (g)(4), (h).
70.209(b)(2), (e)(2), (f), (g)(3),
(g)(4).
70.210(c), (f).
70.211(b), (c).
70.212(c).
Part 71........................... 71.201(d), (h).
71.206(a), (a)(1), (a)(3), (c)(1),
(c)(3), (d).
71.207(c), (k)(2), (k)(4), (l),
(n)(2).
71.208(c), (f).
71.209(b), (c).
71.210(c).
71.300(a), (a)(1), (a)(3).
71.301(d)(1), (d)(3).
Part 72........................... 72.100(d), (e).
72.700(c).
Part 75........................... 75.362(a)(2), (g)(2)(ii), (g)(3),
(g)(4).
Part 90........................... 90.201(f), (i).
90.206(a), (b), (d), (e).
90.208(e)(2), (f), (g)(3).
90.209(e)(3), (e)(4), (e)(5),
(f)(3), (f)(4).
90.210(c), (f).
90.211(b), (c).
90.212(b).
90.300(a).
90.301(d).
------------------------------------------------------------------------
For a detailed summary of the burden hours and related costs by
provision, see the Preliminary Regulatory Economic Analysis (PREA)
accompanying this proposed rule. The PREA is posted on MSHA's Web site
at http://www.msha.gov/rea.HTM. A paper copy of the PREA can be
obtained from MSHA's Office of Standards, Regulations, and Variances at
the address provided in the ADDRESSES section of this preamble.
B. Procedural Details
The information collection package for this proposed rule has been
submitted to OMB for review under 44 U.S.C. Sec. 3504, paragraph (h)
of the Paperwork Reduction Act of 1995, as amended. A copy of the
information collection package can be obtained from the Department of
Labor by electronic mail request to Michel Smyth or by phone request to
(202) 693-4129.
MSHA requests comments to:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including
[[Page 64479]]
whether the information will have practical utility;
Evaluate the accuracy of the Agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
Comments on the information collection requirements should be sent
to both OMB and MSHA. Addresses for both offices can be found in the
ADDRESSES section of this preamble. The regulated community is not
required to respond to any collection of information unless it displays
a current, valid, OMB control number. MSHA displays the OMB control
numbers for the information collection requirements in its regulations
in 30 CFR part 3.
XI. Other Regulatory Considerations
A. National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.
4321 et seq.), requires each Federal agency to consider the
environmental effects of final actions and to prepare an Environmental
Impact Statement on major actions significantly affecting the quality
of the environment. MSHA has reviewed the proposed standard in
accordance with NEPA requirements, the regulation of the Council on
Environmental Quality (40 CFR part 1500), and the Department of Labor's
NEPA procedures (29 CFR part 11). As a result of this review, MSHA has
preliminarily determined that this proposed rule will have no
significant environmental impact.
B. The Unfunded Mandates Reform Act of 1995
MSHA has reviewed the proposed rule under the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that
this proposed rule does not include any federal mandate that may result
in increased expenditures by State, local, or tribal governments; nor
will it increase private sector expenditures by more than $100 million
in any one year or significantly or uniquely affect small governments.
Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et
seq.) requires no further Agency action or analysis.
C. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (5 U.S.C. 601) requires agencies to assess the impact of
Agency action on family well-being. MSHA has determined that the
proposed rule will have no effect on family stability or safety,
marital commitment, parental rights and authority, or income or poverty
of families and children. The proposed rule impacts the coal mine
industry. Accordingly, MSHA certifies that the proposed rule will not
impact family well-being.
D. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule does not implement a policy with takings
implications. Accordingly, under E.O. 12630, no further Agency action
or analysis is required.
E. Executive Order 12988: Civil Justice Reform
The proposed rule was written to provide a clear legal standard for
affected conduct and was carefully reviewed to eliminate drafting
errors and ambiguities, so as to minimize litigation and undue burden
on the Federal court system. Accordingly, the proposed rule will meet
the applicable standards provided in Sec. 3 of E.O. 12988, Civil
Justice Reform.
F. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The proposed rule will have no adverse impact on children.
Accordingly, under E.O. 13045, no further Agency action or analysis is
required.
G. Executive Order 13132: Federalism
The proposed rule does not have ``federalism implications'' because
it will not ``have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Accordingly, under E.O. 13132, no further Agency action
or analysis is required.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
The proposed rule does not have ``tribal implications'' because it
will not ``have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal government and Indian tribes.'' Accordingly, under E.O.
13175, no further Agency action or analysis is required.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to publish a statement of
energy effects when a rule has a significant energy action that
adversely affects energy supply, distribution or use. The proposed rule
has been reviewed for its impact on the supply, distribution, and use
of energy because it applies to the coal mining industry. Insofar as
the proposed rule would result in annualized compliance costs of $35.6
to 39.7 million for the underground coal industry relative to annual
revenues of $17 billion in 2009 and annualized compliance costs of $4.8
million for surface coal industry relative to annual revenue of $16.6
billion in 2009, it is not a ``significant energy action'' because it
is not ``likely to have a significant adverse effect on the supply,
distribution, or use of energy * * * (including a shortfall in supply,
price increases, and increased use of foreign supplies).'' Accordingly,
Executive Order 13211 requires no further Agency action or analysis.
J. Executive Order 13272: Proper Consideration of Small Entities in
Agency Rulemaking
MSHA has thoroughly reviewed the proposed rule to assess and take
appropriate account of its potential impact on small businesses, small
governmental jurisdictions, and small organizations. MSHA has
determined and certified that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
XII. References
Aitchison, J and Brown, JAC (1957). The Lognormal Distribution,
Cambridge University Press.
Althouse RB, Castellan RM, Attfield MD, Bang KM, Parker JE (1998).
Surveillance of Pneumoconiosis Morbidity in U.S. Underground Coal
Miners: 1970-1995. In: Chiyotani K, Hosoda Y, Aizawa Y
[[Page 64480]]
(eds.). Advances in the Prevention of Occupational Respiratory
Diseases: Proceedings of the 9th International Conference on
Occupational Respiratory Diseases, p. 174-179.
Altin R, Armutcu F, Kart L, Gurel A, Savranlar A, Ozdemir H (2004).
Antioxidant response at early stages and low grades of simple coal
worker's pneumoconiosis diagnosed by high resolution computed
tomography. International Journal of Hygiene and Environmental
Health 207(5):455-62.
American Conference of Governmental Industrial Hygienists (ACGIH)
(1999). TLVs7 and BEIs7. Threshold Limit Values for Chemical
Substances and Physical Agents, Biological Exposure Indices.
Cincinnati, OH.
American Industrial Hygiene Association (AIHA) (1997). The
Occupational Environment--Its Evaluation and Control. Salvatore R.
DiNardi, Editor. AIHA Press, Fairfax, VA.
Antao VC, Petsonk EL, Sokolow LZ, Wolfe AL, Pinheiro GA, Attfield MD
(2005). Rapidly progressive coal workers' pneumoconiosis in the
United States: geographic clustering and other factors. Occup
Environ Med. 62(10):670-674.
Antao VC, Petsonk EL, Attfield MD (2006). Advanced Cases of Coal
Workers' Pneumoconiosis, Lee and Wise Counties, Virginia. MMWR
55(33):910-912.
Ashford JR, Fay JW, Smith CS (1965). The correlation of dust
exposure with progression of radiological pneumoconiosis in British
coal miners. Am Ind Hyg Assoc J., Jul-Aug;26(4):347-61.
Attfield, MD and Seixas, NS, 1995, ``Prevalence of pneumoconiosis
and its relationship to dust exposure in a cohort of U.S. bituminous
coal miners and ex-miners''; American Journal of Industrial Medicine
27:137-151.
Attfield MD, Petsonk EL (2007). Advanced Pneumoconiosis Among
Working Underground Coal Miners--Eastern Kentucky and Southwestern
Virginia, 2006. MMWR 56(26):652-655.
Attfield MD, Kuempel ED (2003). Commentary--Pneumoconiosis, coalmine
dust, and the PFR. Ann Occup Hyg 47(7):525-529.
Attfield MD, Kuempel E (2008). Mortality Among U.S. Underground Coal
Miners; a 23-year follow-up. Am J Ind Med 51(4):231-245.
Attfield MD, Castranova V., Wagner G (2007). Respiratory Disease in
Coal Miners. Environmental and Occupational Medicine 4(22):1-49.
Attfield MD, Bang KM, Petsonk EL, Schleiff PL, Mazurek JM (2009).
Trends in pneumoconiosis mortality and morbidity for the United
States, 1968-2005, and relationship. Proceedings of Inhaled
Particles X, (23-25 September 2008) Conference, Manchester, UK.
Journal of Physics: Conference Series 151 (2009) 012051 doi:10.1088/
1742-6596/151/1/0112051.
Beeckman LA, Wang ML, Petsonk EL, Wagner GR (2001). Rapid declines
in FEV1 and subsequent respiratory symptoms, illnesses, and
mortality in coal miners in the United States. Am J Respir Crit Care
Med 163 (3 Pt 1): 633-9.
Boschetto P., Quintavalle S., Miotto D, Cascio N, Zeni E, and Mapp C
(2006). Chronic obstructive pulmonary disease (COPD) and
occupational exposures. J Occup Med Tox 1:11. doi:10.1186/1745-6673-
1-11.
Bourgkard E, Bernadac P, Chau N, Bertrand J-P, Tesculescu D, Thieu
Pham, Q (1998). Can the Evolution to Pneumoconiosis Be Suspected in
Coal Miners? A Longitudinal Study. Am J Respir Crit Care Med
158:504-509.
Box, GEP and Cox, DR, (1964). ``An Analysis of Transformations;''
Journal of the Royal Statistical Society, Series B 26:211-252.
Coggon D, Newman-Taylor, A (1998). Coal Mining and chronic
obstructive pulmonary disease: a review of the evidence. Thorax
53,398-407.
Cohen RA, Patel A, Green FH. (2008). Lung disease caused by exposure
to coal mine and silica dust. Semin Respir Crit Care Med 9(6):651-
61. Epub 2009 Feb 16.
Cowie H, Miller BG, Soutar CA (1999). Dust-related risks of
clinically relevant lung functional deficits. Research Report. TM/
99/06. Edinburgh: Institute of Occupational Medicine.
De Andrade Jr. D, De Souza R, Dos Santos S, De Andrade D (2005).
Oxygen free radicals and pulmonary disease. J Bras Pneumol 31(1):60-
8.
Energy Information Administration (2007) Annual Coal Report--Table
1, pages 11 and 12; and Table 18, page 37.
Federal Coal Mine Health and Safety Act (1969), House Report No. 91-
563, October 13, 1969, pp. 12-13.
Green FHY, Brower PL, Vallyathan V, Attfield M [1998a]. Coal Mine
Dust Exposure and Type of Pulmonary Emphysema in Coal Workers. In:
Chiyotani K, Hosoda Y, Aizawa Y (eds.). Advances in the Prevention
of Occupational Respiratory Diseases: Proceedings of the 9th
International Conference on Occupational Respiratory Diseases. pp.
948-953.
Green FHY, Althouse R, Parker J, Kahn J, Weber K, Vallyathan V
[1998b]. Trends in the Prevalence of Coal Workers' Pneumoconiosis in
U.S. Autopsied Coal Miners. In: Chiyotani K, Hosoda Y, Aizawa Y
(eds.). Advances in the Prevention of Occupational Respiratory
Diseases: Proceedings of the 9th International Conference on
Occupational Respiratory Diseases, Kyoto, Japan, 13-16, October
1997, Pp. 145-148.
Hansen EF, Phanareth K, Laursen LC, Kok-Jensen A, Dirksen, A (1999)
Reversible and irreversible airflow obstruction as predictor of
overall mortality in asthma and chronic obstructive pulmonary
disease. Am. J. Respir. Crit. Care Med 159:1267-1271.
Henneberger PK, Attfield, MD (1997) Respiratory symptoms and
spirometry in experienced coal miners: Effects of both distant and
recent coal mine dust exposures. Am. J. Ind. Med 32:268-274.
Heppleston AG. (1988). Prevalence and pathogenesis of pneumoconiosis
in coal workers. Environ Health Perspect. Jun; 78:159-70. Institute
of Occupational Medicine, Edinburgh, UK.
Hintermann, Beat, Alberini, Anna and Markandya, Anil, (2008)
``Estimating the Value of Safety with Labor Market Data: Are the
Results Trustworthy?'' Applied Economics (2010): 1085-1100.
Published electronically in July 2008.
Huang X, Li W, Attfield MD, Nadas A, Frenkel K, Finkelman RB (2005).
Mapping and prediction of coal workers' pneumoconiosis with
bioavailable iron content in the bituminous coals. Environ Health
Perspect.113:964-968.
Hurley F, Kenny L, Miller B (2002). Health impact estimates of dust-
related disease in UK coal miners: Methodological and practical
issues. Ann. Occup. Hyg 46 (Suppl 1): 261-264.
International Labour Office. (1980) International Classification of
Radiographs of Pneumoconiosis. Occupational Safety and Health,
Series No. 22 (Rev 80). Geneva, Switzerland: International Labor
Office.
IUD (1980) Indus. Union Dep't, v. Amer. Petroleum Inst., 448 U.S.
607, 662 (1980) (weighing the appropriateness of a standard OSHA
established).
Kennedy, E. R., T.J. Fischbach, R. Song, P.M. Eller, and S.A.
Shulman, (1995). Guidelines for air sampling and analytical method
development and evaluation, DHHS (NIOSH) Publication No. 95-117.
Kenny LC, Hurley F, Warren ND (2002). Estimation of the risk of
contracting pneumoconiosis in the UK coal mining industry. Ann Occup
Hyg 46(Suppl 1):257-60.
Kizil GV, Donoghue AM (2002). Coal dust exposures in the longwall
mines of New South Wales, Australia: a respiratory risk assessment.
Occup Med (Lond).52(3):137-49.
Kogut, 2003, unpublished PowerPoint presentation, ``Coal Mine Dust
Inspections.pps''; placed into the public record in connection with
the current coal mine dust rulemaking proceedings and available from
MSHA's Office of Standards, Regulations, and Variances.
Kogut, J. Memorandum of September 6, 1994, from Jon Kogut,
Mathematical Statistician, Denver Safety and Health Technology
Center, MSHA, to Ronald J. Schell, Chief, Division of Health, Coal
Mine Safety and Health, MSHA, Subject: Coal Mine Respirable Dust
Standard Noncompliance Determinations.
Kuempel et al., 2009(a) ``Emphysema and Pulmonary Impairment in Coal
Miners: Quantitative Relationship with Dust Exposure and Cigarette
Smoking''; Journal of Physics Conference Series 151:1:012024.
Kuempel E, Wheeler M, Smith RJ, Vallyathan V, Green FHY. (2009b).
Contributions of dust exposure and cigarette smoking to emphysema
severity in coal miners in the United States. Am J Respir Crit Care
Med 180: 257-264.
Kuempel ED, Tran CL, Bailer AJ, Smith RJ, Dankovic DA, Stayner LT.
(2001a).
[[Page 64481]]
Methodological issues of using observational human data in lung
dosimetry models for particulates. Sci Total Environ. 274(1-3),67-
77.
Kuempel ED, Tran CL, Smith RJ, Bailer AJ. (2001b). A biomathematical
model of particle clearance and retention in the lungs of coal
miners. II. Evaluation of variability and uncertainty. Regul Toxicol
Pharmacol. 34(1),88-101.
Kuempel E, Smith R, Attfield M, Stayner L (1997). Risks of
Occupational Respiratory Diseases among U.S. Coal Miners. App Occup
Environ Hyg 12(12):823-831.
Lin LC, Yang SC, Lu KW (2001). Ventilatory defect in coal workers
with simple pneumoconiosis: early detection of functional
abnormalities. Kaohsiung J Med Sci 17(5):245-52.
Love R, Miller B, Groat S, Hagen S, Cowie H, Johnston P, Hutchison
P, Soutar G (1997). Respiratory health effects of opencast
coalmining: a cross sectional study of current workers. Occ Env Med
54:416-423.
Luppi F, Hiemstra P (2007) Epithelial responses to oxidative stress
in chronic obstructive pulmonary disease. Lessons from expression
profiling. Am J Respir Crit Care Med 175:527-528.
MacCalman L, Miller B (2009). Mortality in an extended follow-up of
British coal workers. Inhaled Particles X. Manchester Journal of
Physics: Conference Series 151. doi:10.1088/1742-6596/151/1/012050.
Magat W., Viscusi, W., and Huber, J., (1996) ``A Reference Lottery
Metric for Valuing Health'', Management Science, (42: 8), pp. 1118-
1130.
McCunney R, Morfeld P, Payne S (2009). What component of coal causes
coal workers pneumoconiosis? J Occup Environ Med 51(4):462-7.
Meijers JM, Swaen GM, Slangen JJ (1997). Mortality of Dutch coal
miners in relation to pneumoconiosis, chronic obstructive pulmonary
disease, and lung function. Occup Environ Med. 54(10),708-713.
Miller B., MacCalman L., Hutchison P. (2007). Mortality over an
extended follow-up period in coal workers exposed to respirable dust
and quartz. IOM Research Report. Research Report TM/07/06: 100
pages.
Miller B., Buchanan D., Hurley J., Hutchison P., Soltar C.,
Pilkington A., Robertson A. (1997). The effects of exposure to
diesel fumes, low-level radiation, and respirable dust and quartz,
on cancer mortality in coalminers. IOM Historical Research Report.
TM/97/041: 139 pages.
Naidoo RN, Robins TG, Solomon A, White N, Franzblau A (2004).
Radiographic outcomes among South African coal miners. Int Arch
Occup Environ Health. 77(7):471-81.
Naidoo RN, Robins TG, Seixas N, Lalloo UG, Becklake M (2005).
Differential respirable dust related lung function effects between
current and former South African coal miners. Int Arch Occup Environ
Health 78(4):293-302.
Naidoo RN, Robins TG, Seixas N, Lalloo UG, Becklake M (2006).
Respirable coal dust exposure and respiratory symptoms in South-
African coal miners: a comparison of current and ex-miners. J Occup
Environ Med 48(6):581-90.
National Institute for Occupational Safety and Health. (2008). Work-
Related Lung Disease Surveillance Report 2007. Volume 1. Department
of Health and Human Services, Centers for Disease Control and
Prevention, DHHS (NIOSH) Publication No. 2008-143a. Morgantown, WV.
On the Web: http://www2a.cdc.gov/drds/WorldReportData/SectionDetails.asp?ArchiveID=1&SectionTitleID=2.
National Institute for Occupational Safety and Health, (1995).
Criteria for a Recommended Standard, Occupational Exposure to Coal
Mine Dust.
Newman-Taylor A, Coggon D (1999). Industrial injuries benefits for
coal miners with obstructive lung disease. Thorax. 54(3):282.
Oberd[ouml]rster G. (1995). Lung particle overload: implications for
occupational exposures to particles. Regul Toxicol Pharmacol.
21(1),123-35.
Page SJ, Organiscak JA (2000). Suggestion of a cause-and-effect
relationship among coal rank, airborne dust, and incidence of
workers' pneumoconiosis. AIHAJ. 61(6):785-7.
Page S, Volkwein J, Vinson R, Joy G, Mischler, S, Tuchman D,
McWilliams, L (2008). Equivalency of a personal dust monitor to the
current United States coal mine respirable dust sampler. J Environ
Monit; 10(1):96-101.)
Peng K, Wang ML, Du Q, Li Y, Attfield MD, Han G, Petsonk EL, Li S,
Wu Z (2005). Early change of pulmonary ventilation in new coal
miners. Chin J Ind Hyg Occup Dis 23:105-108.
Pon MRI, Roper RA, Petsonk EL, Wang ML, Castellan RM, Attfield MD,
Wagner GR (2003). Pneumoconiosis prevalence among working coal
miners examined in federal chest radiograph surveillance programs--
United States, 1996-2002. MMWR. 52 (15):336-340.
Ross MH, Murray J. (2004). Occupational respiratory disease in
mining. Occup Med 54:304-310.
Scarisbrick DA, Quinlan, RM (2002). Health Surveillance for Coal
Workers' Pneumoconiosis in the United Kingdom 1998-2000. Ann Occup
Hyg 46 (Suppl 1):254-256.
Smith DR, Leggat PA (2006). 24 years of pneumoconiosis mortality
surveillance in Australia. J Occup Health. 48 (5):309-13.
Soutar CA, Hurley JF, Miller BG, Cowie HA, Buchanan D (2004). Dust
concentrations and respiratory risks in coalminers: key risk
estimates from the British Pneumoconiosis Field Research. Occup
Environ Med 61:477-481.
Sunstein, Cass, (2004) ``Valuing Life: A Plea for Disaggregation,''
Duke Law Journal, 54 (November 2004): 385-445.
Taylor, J., (1986). ``The retransformed mean after a fitted power
transformation''; Journal of the American Statistical Association
81:114-118.
U.S. Bureau of Economic Analysis (2010). National Income and Product
Accounts Table: Table 1.1.9. Implicit Price Deflators for Gross
Domestic Product [Index numbers, 2005=100]. Revised May 27, 2010.
http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=13&Freq=Qte&FirstYear=2006&LastYear=2008.
U.S. Department of Labor, Mine Safety and Health Administration,
(1992). Report of the Coal Mine Respirable Dust Task Group. Review
of the Program to Control Respirable Coal Mine Dust in the United
States.
U.S. Department of Labor, Mine Safety and Health Administration,
(1993). Report of the Statistical Task Team of the Coal Mine
Respirable Dust Task Group.
U.S. Department of Labor (1996)., Mine Safety and Health
Administration, Report of the Secretary of Labor's Advisory
Committee on the Elimination of Pneumoconiosis Among Coal Mine
Workers. Washington, DC.
U.S. Department of Labor and U.S. Department of Health and Human
Services, (2003). Proposed rule; reopening of record; request for
comments; notice of public hearings; correction; close of record.
``Determination of Concentration of Respirable Coal Mine Dust;'' (68
FR 10940).
U.S. Department of Labor, Mine Safety and Health Administration
(2003). Proposed rule; notice of public hearings; close of record.
``Verification of Underground Coal Mine Operators' Dust control
Plans and Compliance Sampling for Respirable Dust, (68 FR 10784).
U.S. Department of Labor, Mine Safety and Health Administration
(2009). Office of Program Evaluation and Information Resources
(PEIR). Calendar Year 2008 data.
U.S. Department of Labor, Quantitative Risk Assessment in Support of
Proposed Respirable Coal Mine Dust Rule, Jon Kogut, Statistical
Methods and Analysis, MSHA Contract DOLJ094R22516, September 2010.
U.S. Environmental Protection Agency. (EPA, 2003) National Primary
Drinking Water Regulations; Stage 2 Disinfectants and Disinfection
Byproducts Rule; National Primary and Secondary Drinking Water
Regulations; Approval of Analytical methods for Chemical
Contaminants; Proposed Rule, August 18, 2003. Federal Register,
Volume 68, Number 159.
Vallyathan V, Green F, Brower P, Attfield M (1997). The Role of Coal
Mine Dust Exposure in the Development of Pulmonary Emphysema. Ann
Occup Hyg 41 (Suppl 1): 352-357.
Viscusi, W. & Aldy, J (2003) ``The Value of a Statistical Life: A
Critical Review of Market Estimates Throughout the World'', Journal
of Risk and Uncertainty, (27:5-76).
Volkwein, J. C., R.P. Vinson, L.J. McWilliams, D.P. Tuchman, and
S.E. Mischler, (June 2004). Performance of a New Personal Respirable
Dust Monitor for Mine Use. CDC RI 9663.
Volkwein, J.C., R.P. Vinson, S.J. Page, L.J. McWilliams, G.J. Joy,
S.E. Mischler and
[[Page 64482]]
D.P. Tuchman, (September 2006). Laboratory and field performance of
a continuously measuring personal respirable dust monitor. CDC RI
9669.
Wang ML, Petsonk EL, Beeckman LA, Wagner GR (1999). Clinically
important FEV1 declines among coal miners: an exploration
of previously unrecognized determinants. Occup Environ Med 56:837-
844.
Wang ML, Wu ZE, Du QG, Petsonk EL, Peng KL, Li YD, Li YD, Han GH,
Attfield MD, (2005). A prospective cohort study among new Chinese
coal miners: the early pattern of lung function change. Occup
Environ Med 2:800-805.
Wang ML, Wu ZE, Du QG, Peng KL, Li YD, Li SK, Han GH, Petsonk EL
(2007). Rapid decline in forced expiratory volume in 1 second
(FEV1) and the development of bronchitic symptoms among
new Chinese coal miners. J Occup Environ Med 49 (10):1143-8.
Wang X, Yano E, Nonaka K, Wang M, and Wang Z (1997). Respiratory
impairments due to dust exposure: a comparative study among workers
exposed to silica, asbestos, and coalmine dust. Am J Ind Med 31:495-
502.
Wang X, Yu IT, Wong TW, Yano E (1999). Respiratory symptoms and
pulmonary function in coal miners: looking into the effects of
simple pneumoconiosis. Am J Ind Med 35 (2):124-31.
Yeoh CI, Yang, SC (2002). Pulmonary function impairment in
pneumoconiotic patients with progressive massive fibrosis. Chang
Gung Med J 25(2):72-80.
Zhang Q, Huang X (2005). Addition of calcite reduces iron's
bioavailability in the Pennsylvania coals--potential use of calcite
for the prevention of coal workers' lung diseases. J Toxicol Environ
Health Part A 68 (19):1663-79.
Zhang Q, Dai J, Ali A, Chen L, Huang X (2002). Roles of bioavailable
iron and calcium in coal dust-induced oxidative stress: possible
implications in coal workers' lung disease. Free Radic Res
36(3):285-94.
XIII. Appendix A--Excessive Concentration Values
The Excessive Concentration Value (ECV) tables ensure that
noncompliance is cited only when there is a 95-percent level of
confidence that the applicable respirable dust standard has actually
been exceeded. A single-shift measurement of respirable coal mine dust
that does not exceed the applicable ECV value does not necessarily
imply probable compliance with the applicable dust standard (S), let
alone compliance at a 95-percent confidence level. For example, using a
CMDPSU, a single-shift measurement of 2.14 mg/m\3\ would not, according
to Table 70-1, indicate noncompliance with sufficient confidence to
warrant a citation if the applicable standard S = 2.0 mg/m\3\. This
does not imply that the mine atmosphere was in compliance on the shift
and at the location sampled. On the contrary, unless contradictory
evidence was available, this measurement would indicate that the MMU
was probably out of compliance. However, because there is a small
chance that the measurement exceeded the respirable dust standard only
because of measurement error, a citation would not be issued.
Additional measurements would be necessary to verify the adequacy of
control measures. Similarly, a single-shift measurement of 1.92 mg/m\3\
would not warrant issuance of a citation; but, because of possible
measurement error, neither would it warrant concluding that the mine
atmosphere sampled was in compliance.
Furthermore, even if a single-shift measurement were to
demonstrate, at a high confidence level, that the mine atmosphere was
in compliance at the sampling location on a given shift, additional
measurements would be required to demonstrate compliance on each shift.
For example, if S = 2.0 mg/m\3\, then a valid measurement of 1.65 mg/
m\3\ would demonstrate compliance on the particular shift and at the
particular location sampled. It would not, however, demonstrate
compliance on other shifts or at other locations.
I. Derivation of Tables 70-1, 71-1, and 90-1
To understand how the ECVs are derived and justified, one must
distinguish between variability due to measurement error and
variability due to actual differences in dust concentration.
Variability observed among individual measurements obtained at
different locations (or at different times) combines both: Dust
concentration measurements vary partly because of measurement error and
partly because of differences in the dust concentration being measured.
The distinction between measurement error and variation in the true
dust concentration can more easily be explained by first defining some
notational abbreviations.
Dust samples are collected in the same MMU or other mine area on a
particular shift. Since it is necessary to distinguish between
different samples in the same MMU, let Xi represent the 8-
hour MRE dust concentration measurement obtained from the
ith sample. The quantity being measured is the true, single-
shift average dust concentration at the ith sampling
location and is denoted by [mu]i. Because of potential
measurement errors, [mu]i can never be known with complete
certainty. A ``sample,'' ``measurement,'' or ``observation'' always
refers to an instance of Xi rather than [mu]i.
The overall measurement error associated with an individual
measurement is the difference between the measurement (Xi)
and the quantity being measured ([mu]i). Therefore, this
error can be represented as
[egr]i = Xi-[mu]i.
Equivalently, any measurement can be regarded as the true
concentration in the atmosphere sampled, with a measurement error added
on:
Xi = [mu]i + [egr]i
For two different measurements (X1 and X2),
it follows that X1 may differ from X2 not only
because of the combined effects of [egr]1 and
[egr]2, but also because [mu]1 differs from
[mu]2.
The probability distribution of Xi around
[mu]i depends only on the probability distribution of
[egr]i and should not be confused with the statistical
distribution of [mu]i, which arises from spatial and/or
temporal variability in dust concentration. This variability [i.e.,
among [mu]i for different values of I] is not associated
with inadequacies of the measurement system, but real variation in
exposures due to the fact that contaminant generation rates vary in
time and contaminants are heterogeneously distributed in workplace air.
Since noncompliance determinations are made relative to individual
sampling locations on individual shifts, derivation of the tables
require no assumptions or inferences about the spatial or temporal
pattern of atmospheric dust concentrations--i.e., the statistical
distribution of [mu]i. MSHA is not evaluating dust
concentrations averaged across the various sampling locations.
Therefore, the degree and pattern of variability observed among
different measurements obtained during MSHA sampling are not used in
establishing any ECV. Instead, the ECV for each applicable dust
standard (S) is based entirely on the distribution of measurement
errors ([egr]i) expected for the maximum dust concentration
in compliance with that standard--i.e., a concentration equal to S
itself.
If control filters are used to eliminate potential biases, then
each [egr]i arises from a combination of four weighing
errors (pre- and post-exposure for both the control and exposed filter
capsule) and a continuous summation of instantaneous measurement errors
accumulated over the course of an eight-hour sample. Since the eight-
hour period can be subdivided into an arbitrarily large number of sub-
intervals, and some fraction of [egr]i is associated with
each sub-interval, [egr]i can be represented as comprising
the sum of an arbitrarily large number of sub-interval
[[Page 64483]]
errors. By the Central Limit Theorem, such a summation tends to be
normally distributed, regardless of the distribution of sub-interval
errors. This does not depend on the distribution of [mu]i,
which is generally represented as being lognormal.
Any systematic error or bias in the weighing process attributable
to the laboratory is mathematically canceled out by subtraction. Any
bias that may be associated with day-to-day changes in laboratory
conditions or introduced during storage and handling of the filter
capsules is also mathematically canceled out. Elimination of the
sources of systematic errors identified above, together with the fact
that the concentration of respirable dust is defined by section 202(e)
of the Mine Act to mean the average concentration of respirable dust
measured by an approved sampler unit, indicates that the measurements
are unbiased. This means that [egr]i is equally likely to be
positive or negative and, on average, equal to zero.
Therefore, each [egr]i is assumed to be normally
distributed, with a mean value of zero and a degree of variability
represented by its standard deviation:
[oacute]i = ii x CVtotal.
Since Xi = [mu]i + [egr]i, it
follows that for a given value of [mu]i, Xi is
normally distributed with expected value equal to [mu]i and
standard deviation equal to [sigma]i. CVtotal, is
the coefficient of variation in measurements corresponding to a given
value of [mu]i. CVtotal relates entirely to
variability due to measurement errors and not at all to variability in
actual dust concentrations.
The proposed procedure for citing noncompliance based on Tables 70-
1, 71-1, and 90-1 consists of formally testing a presumption of
compliance at every location sampled. Compliance with the applicable
dust standard at the ith sampling location is expressed by the relation
[mu]i <= S. Max{[mu]i{time} denotes the maximum
dust concentration, among all of the sampling locations within an MMU.
Therefore, if Max{[mu]i{time} <= S, none of the sampling
devices in the MMU were exposed to excessive dust concentration. Since
the burden of proof is on MSHA to demonstrate noncompliance, the
hypothesis being tested (called the null hypothesis, or H0,)
is that the concentration at every location sampled is in compliance
with the applicable dust standard. It follows that for an MMU, the null
hypothesis (H0) is that max{[mu]i{time} <= S. In
other areas, where only one, full-shift measurement is made, the null
hypothesis is simply that [mu]i <= S.
The test consists of evaluating the likelihood of measurements
under the assumption that H0 is true. Since Xi =
[mu]i + [egr]i, Xi (or
max{Xi{time} in the case of an MMU) can exceed S even under
that assumption. However, based on the normal distribution of
measurement errors, it is possible to calculate the probability that a
measurement error would be large enough to account for the
measurement's exceeding the standard. The greater the amount by which
Xi exceeds S, the less likely it is that this would be due
to measurement error alone. If, under H0, this probability
is less than five percent, then H0 can be rejected at a 95-
percent confidence level and a citation is warranted. For an MMU,
rejecting H0 (and therefore issuing a citation) is
equivalent to determining that [mu]i > S for at least one
value of I.
Each ECV listed was calculated to ensure that citations will be
issued at a confidence level of at least 95 percent. As described in
MSHA's February 1994 notice, Coal Mine Respirable Dust Standard
Noncompliance Determinations (59 FR 8356, February 18, 1994) and
explained further by Kogut (Kogut, J, 1994) the tabled ECV
corresponding to each S was calculated on the assumption that, at each
sampling location:
[GRAPHIC] [TIFF OMITTED] TP19OC10.003
The July 2000 MSHA and NIOSH proposed joint finding,
``Determination of Concentration of Respirable Coal Mine Dust'' (65 FR
42068, July 7, 2000), determined that for valid measurements made with
an approved sampler unit, CVtotal is in fact less than
CVECV at all dust concentrations ([mu]i).
The situation in which measurement error is most likely to cause an
erroneous noncompliance determination is the hypothetical case of
[mu]i = S for either a single-shift sample measurement or
for all of the measurements made in the same MMU. In that borderline
situation--i.e., the worst case consistent with H0--the
standard deviation is identical for all measurement errors. Therefore,
the value of [sigma] used in constructing the ECV tables is the product
of S and CVECV evaluated for a dust concentration equal to
S:
[GRAPHIC] [TIFF OMITTED] TP19OC10.004
Assuming a normal distribution of measurement errors as explained
above, it follows that the probability a single measurement would equal
or exceed the critical value
c = S + 1.64[sdot][sigma]
is five percent under H0 when CVtotal =
CVECV. The tabled ECV corresponding to S is derived by
raising the critical value c up to the next exact multiple of 0.01 mg/
m\3\.
For example, at a dust concentration ([mu]i) just
meeting the applicable dust standard of S = 2 mg/m\3\, CVECV
is 9.95 percent. Therefore, the calculated value of c is 2.326 and the
ECV is 2.33 mg/m\3\. Any valid single-shift measurement at or above
this ECV is unlikely to be this large simply because of measurement
error. Therefore, any such measurement should result in a noncompliance
citation.
The probability that a measurement exceeds the ECV is even smaller
if [mu]i < S for any I. Furthermore, to the extent that
CVtotal is actually less than CVECV, [sigma] is
actually less than S[sdot]CVECV. This results in a lower
probability that the critical value would be exceeded under the null
hypothesis. Consequently, if any single-shift measurement equals or
exceeds c, then H0 can be rejected at confidence level of at
least 95-percent. Since rejection of H0 implies that
[mu]i > S for at least one value of I, this should result in
a noncompliance citation.
It should be noted that when each of several measurements is
separately compared to the ECV table, the probability that at least one
[egr]i will be large enough to force Xi >= ECV
when [mu]i <= S is greater than the probability when only a
single comparison is made. For example (still assuming S = 2 mg/m\3\),
if CVtotal is actually 6.6%, then the standard deviation of
[egr]i is 6.6% of 2.0 mg/m\3\, or 0.132 mg/m\3\, when
[mu]i = S. Using properties of the normal
[[Page 64484]]
distribution, the probability that any single measurement would exceed
the ECV in this borderline situation is calculated to be 0.0062.
However, the probability that at least one of five such measurements
results in a citation is 1-(0.9938)\5\ = 3.1 percent. Therefore, the
confidence level at which a citation can be issued, based on the
maximum of five measurements made in the same MMU on a given shift, is
97%.
The constant 1.64 used in calculating the ECV is a 1-tailed 95-
percent confidence coefficient and is derived from the standard normal
probability distribution. Since the purpose of the ECV tables is to
provide criteria for determining that the true dust concentration
strictly exceeds the applicable dust standard and such a determination
can occur only when a single-shift measurement is sufficiently high,
there is exactly zero probability of erroneously citing noncompliance
when a measurement falls below the lower confidence limit.
Consequently, the total probability of erroneously citing noncompliance
equals the probability that a standard normal random variable exceeds
1.64, which is 5 percent.
II. Derivation of Tables 70-2, 71-2, and 90-2
The same statistical theory underlying the derivation of the ECVs
in Tables 70-1, 71-1, and 90-1 applies in constructing the values
listed in Tables 70-2, 71-2, and 90-2. This discussion explains the
derivation of the listed ECVs in Tables 70-2, 71-2, and 90-2.
The initial step in the derivation process involves addressing
uncertainty due to potential measurement errors. Such errors reflect
the imprecision inherent in any measurement system and cause individual
concentration measurements to deviate above or below the true
concentration value in the mine atmosphere sampled by a random but
statistically quantifiable amount. Measurement imprecision is
quantified by the total coefficient of variation for overall
measurement error, or CVtotal, also sometimes called
relative standard deviation (RSD). CVtotal is defined as the
ratio of the standard deviation of measurement errors to the true value
of whatever quantity is being measured. It is normally expressed either
as a fraction (e.g., 0.1) or as a percent (e.g., 10.5 percent) of the
true value. MSHA will address uncertainty due to measurement error by
applying a margin of error before issuing a citation for exceeding the
applicable standard. This margin of error is designed to ensure that a
violation of the applicable standard is cited only when a single, full-
shift 8-hour MRE equivalent concentration measurement demonstrates
noncompliance with at least 95-percent confidence. To achieve this 95-
percent confidence level, the applicable margin of error must be
constructed by applying an error factor appropriate for the measurement
being considered. The error factor is calculated as:
EF = 1 + (1.645 x CVtotal)
CVtotal corresponding to the CPDM has been estimated as
7.8 percent based on in-mine studies and is documented by Volkwein et
al. (2006). It relates entirely to variability due to measurement
errors and not at all to variability in actual dust concentrations.
Therefore, when CVtotal = 7.8 percent, the calculated value
of EF is 1.128. If, for example, the sampled occupation is on a 1.5-mg/
m\3\ standard, the operator would be in violation of the applicable
standard if a single, full-shift 8-hour MRE equivalent concentration
measurement times the EF exceeds 1.692 mg/m\3\ [1.5 x 1.128]. The ECV
corresponding to each applicable standard is derived by simply raising
the calculated ECV to the next exact multiple of 0.01 mg/m\3\.
Therefore, the ECV corresponding to the applicable standard of 1.5 mg/
m\3\ is 1.70 mg/m\3\. Since it is unlikely that any valid end-of shift
8-hour MRE equivalent concentration is this large simply because of
measurement error, such a measurement would result in a citation for
violation of the applicable standard. The same procedures were followed
in calculating ECVs corresponding to other applicable standards.
List of Subjects
30 CFR Part 70
Coal, Mine safety and health, Reporting and recordkeeping
requirements, Respirable dust, Underground coal mines.
30 CFR Part 71
Coal, Mine safety and health, Reporting and recordkeeping
requirements, Surface coal mines, Underground coal mines.
30 CFR Part 72
Coal, Health standards, Mine safety and health, Training,
Underground mines.
30 CFR Part 75
Coal, Mine safety and health, Reporting and recordkeeping
requirements, Underground coal mines, Ventilation.
30 CFR Part 90
Coal, Mine safety and health.
Dated: October 1, 2010.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.
For the reasons discussed in the preamble, the Mine Safety and
Health Administration is proposing to amend 30 CFR parts 70, 71, 72, 75
and 90 as follows:
PART 70--MANDATORY HEALTH STANDARDS FOR UNDERGROUND COAL MINES
1. The authority citation for part 70 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), and 957.
2. Section 70.1 is revised to read as follows:
Sec. 70.1 Scope.
This part 70 sets forth mandatory health standards for each
underground coal mine subject to the Federal Mine Safety and Health Act
of 1977, as amended.
3. Amend Sec. 70.2 by:
a. Removing the alphabetical paragraph designations and arranging
existing definitions in alphabetical order;
b. Adding definitions for ``Approved sampling device,'' ``Coal mine
dust personal sampler unit (CMDPSU),'' ``Continuous personal dust
monitor (CPDM),'' ``Equivalent concentration,'' ``Other designated
occupation (ODO),'' ``Representative samples,'' ``Weekly accumulated
exposure (WAE),'' and ``Weekly permissible accumulated exposure
(WPAE);'' and
c. Revising definitions for ``Act,'' ``Designated area (DA),''
``Mechanized mining unit (MMU),'' ``Normal production shift,'' and
``Quartz.''
The additions and revisions are revised to read as follows:
Sec. 70.2 Definitions.
Act. The Federal Mine Safety and Health Act of 1977, Public Law 91-
173, as amended by Public Law 95-164 and Public Law 109-236.
* * * * *
Approved sampling device. A sampling device approved by the
Secretary and Secretary of Health and Human Services (HHS) under part
74 of this title.
* * * * *
Coal mine dust personal sampler unit (CMDPSU). A personal sampling
device approved under part 74, subpart B, of this title.
Continuous personal dust monitor (CPDM). A personal sampling device
approved under part 74, subpart C of this title.
[[Page 64485]]
Designated area (DA). An area of a mine identified by the operator
in the mine ventilation plan, approved by the District Manager, and
identified by a four-digit identification number assigned by MSHA.
* * * * *
Equivalent concentration. The concentration of respirable coal mine
dust expressed in milligrams per cubic meter of air (mg/m\3\),
determined by dividing the weight of dust in milligrams collected on
the filter of an approved sampling device by the volume of air in cubic
meters passing through the collection filter (sampling time in minutes
times the sampling airflow rate in cubic meters per minute), and then
converting this concentration to an equivalent 8-hour exposure as
measured by the Mining Research Establishment (MRE) instrument. When
the approved sampling device is:
(1) The CMDPSU, the equivalent concentration is determined by first
multiplying the concentration of respirable coal mine dust by the MRE
conversion factor prescribed by the Secretary and then normalizing this
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling
time in minutes if longer than 8 hours.
(2) The CPDM, the device shall be programmed to directly report the
end-of-shift equivalent concentration as an MRE 8-hour equivalent
concentration.
(3) Either the CMDPSU or CPDM and the sampled work shift is less
than 8 hours, the value of t used for normalizing the MRE-equivalent
concentration to an 8-hour exposure measurement shall be 480 minutes.
Mechanized mining unit (MMU). A unit of mining equipment including
hand loading equipment used for the production of material; or a
specialized unit which uses mining equipment other than specified in
Sec. 70.207(b). Each MMU is assigned a four-digit identification
number by MSHA, which is retained by the MMU. However, when:
(1) Two sets of mining equipment are used in a series of working
places within the same working section and only one production crew is
employed, the two sets of equipment are identified as a single MMU.
(2) Two or more sets of mining equipment are used in a series of
working places within the same working section and two or more
production crews are employed, each set of mining equipment shall be
identified as a separate MMU.
* * * * *
Normal production shift. A production shift during which the amount
of material produced by an MMU is at least equal to the average
production recorded by the operator for the most recent 30 production
shifts or for all production shifts if fewer than 30 shifts of
production data are available.
Other designated occupation (ODO). Other occupation on a mechanized
mining unit that is designated for sampling in addition to the
Designated Occupation. Each ODO will be identified by a four-digit
identification number assigned by MSHA.
* * * * *
Quartz. Crystalline silicon dioxide (SiO2) as measured
by:
(1) MSHA Analytical Method P-7: Infrared Determination of Quartz in
Respirable Coal Mine Dust; or
(2) Any method approved by MSHA as providing a measurement of
quartz equivalent to that obtained by MSHA Analytical Method P-7.
* * * * *
Representative samples. Respirable dust samples that reflect
typical dust concentration levels and normal mining activity in the
active workings during which the amount of material produced is
equivalent to a normal production shift.
* * * * *
Weekly accumulated exposure (WAE). The total amount of exposure to
respirable coal mine dust, expressed in mg-hr/m\3\, accumulated by an
occupation during a work week (Sunday thru Saturday), determined by
multiplying the daily individual end-of-shift equivalent concentration
measurements by 8 hours, which yields the total amount of exposure
accumulated over the course of the particular shift sampled, and then
adding together all of the daily accumulated exposures.
Weekly permissible accumulated exposure (WPAE). The maximum amount
of accumulated exposure to respirable coal mine dust, expressed in mg-
hr/m\3\, permitted to be received by an occupation during a 40-hour
work week (Sunday thru Saturday), determined by multiplying the
applicable standard by 40 hours.
4. Subpart B is revised to read as follows:
Subpart B--Dust Standards
Sec.
70.100 Respirable dust standards.
70.101 Respirable dust standard when quartz is present.
Sec. 70.100 Respirable dust standards.
(a) Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during each
shift to which each miner in the active workings of each mine is
exposed, as measured with an approved sampling device and in terms of
an equivalent concentration, at or below:
(1) 2.0 milligrams of respirable dust per cubic meter of air (mg/
m\3\).
(2) 1.7 mg/m\3\ as of [date 6 months after the effective date of
the final rule].
(3) 1.5 mg/m\3\ as of [date 12 months after the effective date of
the final rule].
(4) 1.0 mg/m\3\ as of [date 24 months after the effective date of
the final rule].
(b) Each operator shall continuously maintain the average
concentration of respirable dust within 200 feet outby the working
faces of each section in the intake airways as measured with an
approved sampling device and in terms of an equivalent concentration at
or below:
(1) 1.0 mg/m\3\.
(2) 0.5 mg/m\3\ as of [date 6 months after the effective date of
the final rule].
Sec. 70.101 Respirable dust standard when quartz is present.
(a) Each operator shall continuously maintain the average
concentration of respirable quartz dust in the mine atmosphere during
each shift to which each miner in the active workings of each mine is
exposed at or below 0.1 mg/m\3\ (100 micrograms per cubic meter or
[micro]g/m\3\) as measured with an approved sampling device and in
terms of an equivalent concentration.
(b) When the concentration of respirable quartz dust exceeds 100
[micro]g/m\3\, the operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during each
shift to which each miner in the active workings is exposed as measured
with an approved sampling device and in terms of an equivalent
concentration at or below the applicable dust standard. The applicable
dust standard is computed by dividing the percent of quartz into the
number 10. The application of this formula shall not result in an
applicable dust standard that exceeds the standard established by Sec.
70.100(a).
Example: Assume the sampled MMU or DA is on a 1.0-mg/m\3\ dust
standard. Suppose a valid respirable dust sample with an equivalent
concentration of 1.0 mg/m\3\ contains 12.3% of quartz dust, which
corresponds to a quartz concentration of 123 [micro]g/m\3\.
Therefore, the average concentration of respirable dust in the mine
atmosphere associated with that MMU or DA shall be maintained on
each shift at or below 0.8 mg/m\3\ (10/12.3% = 0.8 mg/m\3\).
5. Subpart C is revised to read as follows:
[[Page 64486]]
Subpart C-Sampling Procedures
Sec.
70.201 Sampling; general and technical requirements.
70.202 Certified person; sampling.
70.203 Certified person; maintenance and calibration.
70.204 Approved sampling devices; maintenance and calibration.
70.205 Approved sampling devices; operation; air flowrate.
70.206 CPDM Performance Plan.
70.207 Sampling of mechanized mining units; requirements when using
a CMDPSU.
70.208 Sampling of mechanized mining units; requirements when using
a CPDM.
70.209 Sampling of designated areas.
70.210 Respirable dust samples; transmission by operator.
70.211 Respirable dust samples; report to operator; posting.
70.212 Status change reports.
Sec. 70.201 Sampling; general and technical requirements.
(a) Approved coal mine dust personal sampler units (CMDPSU) shall
be used to take samples of the concentration of respirable coal mine
dust for the designated occupation (DO) in each MMU as required by this
part until replaced by continuous personal dust monitors (CPDM). After
[date 12 months after the effective date of the final rule], only
approved CPDMs shall be used to sample DOs in each MMU unless notified
by the Secretary.
(b) Approved CMDPSUs shall be used to take samples of the
concentration of respirable coal mine dust in each designated area (DA)
associated with an MMU as required by this part until replaced by
CPDMs. After [date 18 months after the effective date of the final
rule] or upon implementation of the use of CPDMs, DAs associated with
an MMU will be redesignated as Other Designated Occupations (ODO).
(c) After [date 18 months after the effective date of the final
rule], only approved CPDMs shall be used to take samples of the
concentration of respirable coal mine dust for each ODO as required by
this part unless notified by the Secretary.
(d) Approved CMDPSUs or CPDMs shall be used to take samples of the
concentration of respirable coal mine dust in each DA that is not
associated with an MMU as required by this part.
(e) Sampling devices shall be worn or carried directly to and from
the MMU or DA to be sampled and shall be operated portal-to-portal.
Sampling devices shall remain with the occupation or DA being sampled
and shall be operational during the entire shift, which includes the
total time spent in the MMU or DA and while travelling to and from the
mining section or area being sampled. If the work shift to be sampled
is longer than 12 hours and the sampling device is:
(1) A CMDPSU, the operator shall switch-out the unit's sampling
pump prior to the 13th-hour of operation.
(2) A CPDM, the operator shall switch-out the CPDM with a fully
charged device prior to the 13th-hour of operation.
(f) If using a CMDPSU, one control filter shall be used for each
shift of sampling. Each control filter shall:
(1) Have the same pre-weight date (noted on the dust data card) as
the filters used for sampling;
(2) Remain plugged at all times;
(3) Be exposed to the same time, temperature, and handling
conditions as the filters used for sampling;
(4) Be kept with the exposed samples after sampling.
(g) Records showing the length of each production shift for each
MMU shall be made and retained for at least six months and shall be
made available for inspection by authorized representatives of the
Secretary and the representative of miners, and submitted to the
District Manager when requested in writing.
(h) Upon request from the District Manager, the operator shall
submit the date and time any respirable dust sampling required by this
part will begin. This information shall be submitted at least 48 hours
prior to scheduled sampling.
(i) To establish a normal production shift, the operator shall
record the amount of run-of-mine material produced by each MMU during
each shift to determine the average production for the most recent 30
production shifts or for all production shifts if fewer than 30 shifts
of production data are available. Production records shall be retained
for at least six months and shall be made available for inspection by
authorized representatives of the Secretary and the representative of
miners.
(j) Operators using CPDMs shall provide training to all miners
expected to wear a CPDM. The training shall be completed prior to a
miner being required to wear a CPDM and then every 12 months
thereafter. The training shall include:
(1) Explaining the basic features and capabilities of the CPDM;
(2) How to set-up the CPDM for compliance sampling.
(3) A discussion of the various types of information displayed by
the CPDM and how to access that information;
(4) How to start and stop a short-term sample run during compliance
sampling; and
(5) The importance of continuously monitoring dust concentrations
and properly wearing the CPDM.
(k) An operator shall keep a record of the CPDM training at the
mine site for two years after completion of the training. An operator
may keep the record elsewhere if the record is immediately accessible
from the mine site by electronic transmission. Upon request from an
authorized representative of the Secretary, Secretary of HHS, or
representative of miners, the operator shall promptly provide access to
any such training records.
Sec. 70.202 Certified person; sampling.
(a) The respirable dust sampling required by this part shall be
performed by a certified person.
(b) To be certified, a person shall complete the applicable MSHA
course of instruction and pass the MSHA examination demonstrating
competency in sampling procedures. Persons not certified in sampling,
and those certified only in maintenance and calibration procedures in
accordance with Sec. 70.203(b), are not permitted to collect
respirable dust samples required by this part or handle approved
sampling devices when being used in sampling.
(c) To maintain certification, a person must pass the MSHA
examination demonstrating competency in sampling procedures every three
years.
(d) MSHA may revoke a person's certification for failing to pass
the MSHA examination or to properly carry out the required sampling
procedures.
Sec. 70.203 Certified person; maintenance and calibration.
(a) Approved sampling devices shall be maintained and calibrated by
a certified person.
(b) To be certified, a person shall complete the applicable MSHA
course of instruction and pass the MSHA examination demonstrating
competency in maintenance and calibration procedures for approved
sampling devices. If using a CMDPSU, necessary maintenance of the
sampling head assembly can be performed by persons certified in
sampling or in maintenance and calibration.
(c) To maintain certification, a person must pass the MSHA
examination demonstrating competency in maintenance and calibration
procedures every three years.
(d) MSHA may revoke a person's certification for failing to pass
the MSHA examination or to properly carry out the required maintenance
and calibration procedures.
[[Page 64487]]
Sec. 70.204 Approved sampling devices; maintenance and calibration.
(a) Approved sampling devices shall be maintained as approved under
part 74 of this title and calibrated in accordance with MSHA
Informational Report IR 1240 (1996) ``Calibration and Maintenance
Procedures for Coal Mine Respirable Dust Samplers'' or in accordance
with the manufacturer's recommendations if using a CPDM. Only persons
certified in maintenance and calibration can perform maintenance work
on the pump unit of approved sampling devices.
(b) Sampling devices shall be calibrated at the flowrate of 2.0
liters of air per minute (L/min), or at a different flowrate
recommended by the manufacturer or prescribed by the Secretary or
Secretary of HHS for the particular device, before they are put into
service and, thereafter, at time intervals recommended by the
manufacturer or prescribed by the Secretary or Secretary of HHS.
(c) If using a CMDPSU, sampling devices shall be examined and
tested by a person certified in sampling or in maintenance and
calibration within 3 hours before the start of the shift on which the
approved sampling devices will be used to collect respirable dust
samples. This is to assure that the sampling devices are clean and in
proper working condition. This examination and testing shall include
the following:
(1) Examination of all components of the cyclone assembly to assure
that they are clean and free of dust and dirt. This includes examining
the interior of the connector barrel (located between the cassette
assembly and vortex finder), vortex finder, cyclone body and grit pot;
(2) Examination of the inner surface of the cyclone body to assure
that it is free of scoring or scratch marks on the inner surface of the
cyclone where the air flow is directed by the vortex finder into the
cyclone body;
(3) Examination of the external hose connecting the pump unit to
the sampling head assembly to assure that it is clean and free of
leaks; and
(4) Examination of the clamping and positioning of the cyclone
body, vortex finder and cassette to assure that they are rigid, in
alignment, firmly in contact and airtight.
(5) Testing the voltage of each battery while under actual load to
assure the battery is fully charged. This requires that a fully
assembled and examined sampling head assembly be attached to the pump
inlet with the pump unit running when the voltage check is made. The
voltage for nickel cadmium cell batteries shall not be lower than the
product of the number of cells in the battery multiplied by 1.25. The
voltage for other than nickel cadmium cell batteries shall not be lower
than the product of the number of cells in the battery multiplied by
the manufacturer's nominal voltage per cell value.
(d) If using a CPDM, the certified person in sampling or in
maintenance and calibration shall follow the examination, testing and
set-up procedures contained in the approved CPDM Performance Plan.
(e) MSHA Informational Report IR 1240 (1996) referenced in
paragraph (a) of this section is incorporated-by-reference. This
incorporation-by-reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected or obtained at MSHA, Coal Mine Safety and Health, 1100
Wilson Blvd., Room 2424, Arlington, Virginia 22209-3939 and at each
MSHA Coal Mine Safety and Health district office. Copies may be
inspected at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
Sec. 70.205 Approved sampling devices; operation; air flowrate.
(a) Approved sampling devices shall be operated at the flowrate of
2.0 L/min, or at a different flowrate recommended by the manufacturer
or prescribed by the Secretary or Secretary of HHS.
(b) If using a CMDPSU, each approved sampling device shall be
examined each shift by a person certified in sampling during:
(1) The second hour after being put into operation to assure it is
in the proper location, operating properly and at the proper flowrate.
If the proper flowrate is not maintained, necessary adjustments shall
be made by the certified person. This examination is not required if
the sampling device is being operated in a breast or chamber of an
anthracite coal mine where the full box mining method is used.
(2) The last hour of operation to assure that the sampling device
is operating properly and at the proper flowrate. If the proper
flowrate is not maintained, the respirable dust sample shall be
transmitted to MSHA with a notation by the certified person on the back
side of the dust data card stating that the proper flowrate was not
maintained. Other events occurring during the collection of respirable
dust samples that may affect the validity of the sample, such as
dropping of the sampling head assembly onto the mine floor, shall be
noted on the back side of the dust data card.
(c) If using a CPDM, the certified person shall examine the
sampling device during the shift in accordance with the procedures
contained in the approved CPDM Performance Plan.
Sec. 70.206 CPDM Performance Plan.
(a) If using a CPDM, the operator shall have an approved CPDM
Performance Plan to ensure that no miner working on an MMU shall be
exposed to concentrations of respirable coal mine dust in excess of the
applicable standard. The operator shall develop a proposed CPDM
Performance Plan and submit it to the District Manager. The proposed
CPDM Performance Plan shall not be implemented until approved by the
District Manager.
(1) The mine operator shall notify the representative of miners at
least 5 days prior to submission of a proposed CPDM Performance Plan
and any proposed revision to a CPDM Performance Plan. If requested, the
mine operator shall provide a copy to the representative of miners at
the time of notification;
(2) A copy of the proposed CPDM Performance Plan, and a copy of any
proposed revision, submitted for approval shall be made available for
inspection by the representative of miners; and
(3) A copy of the proposed CPDM Performance Plan, and a copy of any
proposed revision, submitted for approval shall be posted on the mine
bulletin board at the time of submittal. The proposed plan or proposed
revision shall remain posted until it is approved, withdrawn, or
denied.
(4) Following receipt of the proposed plan or proposed revision,
the representative of miners may submit timely comments to the District
Manager, in writing, for consideration during the review process. A
copy of these comments shall also be provided to the operator by the
District Manager upon request.
(b) The approved CPDM Performance Plan shall include the names or
titles of the responsible mine officials who are designated by the
operator and the following information:
(1) The occupations in each MMU that will be sampled using a CPDM.
Each sampled occupation shall be assigned a 9-digit identification
number as follows:
(i) The first four digits identify the MMU being sampled;
(ii) The next three digits identify the sampled occupation;
[[Page 64488]]
(iii) The eighth digit identifies the particular shift being
sampled (e.g., 1st, 2nd or 3rd); and
(iv) The final digit identifies the particular work crew that the
wearer of the sampling device is assigned to at mines employing
multiple crews to work the same shift on different days during the same
calendar week (e.g., 1st crew, 2nd crew, etc.).
(2) The pre-operational examinations, testing and set-up procedures
to verify the operational readiness of the sampling device before each
sampling shift;
(3) Procedures that address downloading of end-of-shift sampling
information, and validation, certification and posting of reported
results;
(4) Procedures for weekly transmittals of certified sampling data
files electronically to MSHA;
(5) The routine daily and other required scheduled maintenance
procedures;
(6) Procedures or methods for verifying the calibration of each
CPDM; and
(7) The frequency with which dust concentrations being reported by
the CPDM shall be monitored by the designated mine official during the
shift;
(8) The types of actions permitted to be taken during the shift to
ensure the environment of the occupation being sampled remains in
compliance at the end of the shift.
(9) Any other information required by the District Manager.
(c) The approved CPDM Performance Plan and any revisions shall be:
(1) Provided upon request to the representative of miners by the
operator following notification of approval;
(2) Made available for inspection by the representative of miners;
and
(3) Posted on the mine bulletin board within 1 working day
following notification of approval, and shall remain posted for the
period that the plan is in effect.
(d) The District Manager may require an approved CPDM Performance
Plan to be revised if the District Manager determines that the plan is
inadequate to protect miners from exposure to concentrations of
respirable dust in excess of the applicable standard.
Sec. 70.207 Sampling of mechanized mining units; requirements when
using a CMDPSU.
(a) Each operator shall take five valid representative samples from
the designated occupation (DO) in each MMU during each bimonthly
period. DO samples shall be collected on consecutive normal production
shifts or normal production shifts each of which is worked on
consecutive days. The bimonthly periods are:
January 1-February 28 (29)
March 1-April 30
May 1-June 30
July 1-August 31
September 1-October 31
November 1-December 31.
(b) Unless otherwise directed by the District Manager, the DO
samples shall be taken by placing the approved sampling device as
specified in paragraphs (b)(1) through (b)(10) of this section.
(1) Conventional section using cutting machine. On the cutting
machine operator or on the cutting machine within 36 inches inby the
normal working position;
(2) Conventional section shooting off the solid. On the loading
machine operator or on the loading machine within 36 inches inby the
normal working position;
(3) Continuous mining section other than auger-type. On the
continuous mining machine operator or on the continuous mining machine
within 36 inches inby the normal working position;
(4) Continuous mining machine; auger-type. On the jacksetter who
works nearest the working face on the return air side of the continuous
mining machine or at a location that represents the maximum
concentration of dust to which the miner is exposed;
(5) Scoop section using cutting machine. On the cutting machine
operator or on the cutting machine within 36 inches inby the normal
working position;
(6) Scoop section, shooting off the solid. On the coal drill
operator or on the coal drill within 36 inches inby the normal working
position;
(7) Longwall section. On the miner who works nearest the return air
side of the longwall working face or along the working face on the
return side within 48 inches of the corner;
(8) Hand loading section with a cutting machine. On the cutting
machine operator or on the cutting machine within 36 inches inby the
normal working position;
(9) Hand loading section shooting off the solid. On the hand loader
exposed to the greatest dust concentration or at a location that
represents the maximum concentration of dust to which the miner is
exposed;
(10) Anthracite mine sections. On the hand loader exposed to the
greatest dust concentration or at a location that represents the
maximum concentration of dust to which the miner is exposed.
(c) When the respirable dust standard is changed in accordance with
Sec. 70.101, the new applicable standard shall become effective on the
first production shift following receipt of the notification of such
change from MSHA.
(1) If all samples from the most recent bimonthly sampling period
do not exceed the new applicable standard, respirable dust sampling of
the MMU shall begin on the first production shift during the next
bimonthly period following receipt of such change from MSHA.
(2) If any sample from the most recent bimonthly sampling period
exceeds the new applicable standard, the operator shall make necessary
adjustments to the dust control parameters in the mine ventilation plan
within three days and then collect samples from the affected MMU on
consecutive normal production shifts until five valid representative
samples are collected. The samples collected will be treated as normal
bimonthly samples under this part.
(d) If a normal production shift is not achieved, the DO sample for
that shift may be voided by MSHA. However, any sample, regardless of
production, that exceeds the applicable standard by at least 0.1 mg/
m\3\ shall be used to determine the average concentration for that MMU.
(e) No valid single-shift equivalent concentration shall meet or
exceed the excessive concentration value (ECV) that corresponds to the
applicable standard in Table 70-1.
(f) Upon issuance of a citation for a violation of the applicable
standard involving a DO in an MMU, paragraphs (a) and (c)(2) of this
section shall not apply to that MMU until the violation is abated in
accordance with paragraph (g) of this section.
(g) During the time for abatement fixed in a citation for violation
of the applicable standard, the operator shall take the following
actions:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Submit to the District Manager for approval proposed corrective
actions to lower the concentration of respirable dust to within the
applicable standard; and
(3) Upon approval by the District Manager, implement the proposed
corrective actions and then sample the environment of the affected
occupation in the MMU in the citation on each normal production shift
until five valid representative samples are taken.
(h) A citation for violation of the applicable standard shall be
terminated
[[Page 64489]]
by MSHA when the equivalent concentration of each of the five valid
operator abatement samples is at or below the applicable standard, the
operator has submitted to the District Manager revised dust control
parameters as part of the mine ventilation plan applicable to the MMU
in the citation, and such changes have been approved by the District
Manager. The revised parameters shall reflect the control measures used
to abate the violation.
(i) When the equivalent concentration of one or more valid samples
collected by the operator under this section exceeds the applicable
standard but is less than the applicable ECV in Table 70-1, the
operator shall:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Take corrective action to lower the concentration of respirable
dust to or below the applicable standard.
(3) Record the corrective actions taken in the same manner as the
records for hazardous conditions required by Sec. 75.363 of this
chapter.
Table 70-1--Excessive Concentration Values (ECV) Based on Single-Shift
CMDPSU Equivalent Concentration Measurements
------------------------------------------------------------------------
ECV (mg/
Applicable standard (mg/m\3\) m\3\)
------------------------------------------------------------------------
2.0.......................................................... 2.33
1.9.......................................................... 2.22
1.8.......................................................... 2.12
1.7.......................................................... 2.01
1.6.......................................................... 1.90
1.5.......................................................... 1.79
1.4.......................................................... 1.69
1.3.......................................................... 1.59
1.2.......................................................... 1.47
1.1.......................................................... 1.37
1.0.......................................................... 1.26
0.9.......................................................... 1.16
0.8.......................................................... 1.05
0.7.......................................................... 0.95
0.6.......................................................... 0.85
0.5.......................................................... 0.74
0.4.......................................................... 0.65
0.3.......................................................... 0.54
0.2.......................................................... 0.44
------------------------------------------------------------------------
Sec. 70.208 Sampling of mechanized mining units; requirements when
using a CPDM.
(a) Each operator shall sample:
(1) The designated occupation (DO) in each MMU during each
production shift, seven days per week (Sunday through Saturday), 52
weeks per year; and
(2) The Other Designated Occupations (ODO) specified in paragraphs
(b)(1) through (b)(10) of this section in each MMU during each
production shift for 14 consecutive days during each quarterly period.
The quarterly periods are:
January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31.
(b) Unless otherwise directed by the District Manager, the CPDM
shall be worn by the miner assigned to perform the duties of the DO and
ODOs specified in paragraphs (b)(1) through (b)(10) or by the District
Manager for each type of MMU.
(1) Conventional section using cutting machine. DO--The cutting
machine operator;
(2) Conventional section shooting off the solid. DO--The loading
machine operator;
(3) Continuous mining section other than auger-type. DO--The
continuous mining machine operator or mobile bridge operator when using
continuous haulage; ODOs--The roof bolter operator who works nearest
the working face on the return air side of the continuous mining
machine; and the shuttle car operators on MMUs using blowing face
ventilation;
(4) Continuous mining section using auger-type machine. DO--The
jacksetter who works nearest the working face on the return air side of
the continuous mining machine;
(5) Scoop section using cutting machine. DO--The cutting machine
operator;
(6) Scoop section, shooting off the solid. DO--The coal drill
operator;
(7) Longwall section. DO--The longwall operator working on the
tailgate side of the longwall mining machine; ODOs--The jacksetter who
works nearest the return air side of the longwall working face; and on
the mechanic;
(8) Hand loading section with a cutting machine. DO--The cutting
machine operator;
(9) Hand loading section shooting off the solid. DO--The hand
loader exposed to the greatest dust concentration; and
(10) Anthracite mine sections. DO--The hand loader exposed to the
greatest dust concentration.
(c) When the respirable dust standard is changed in accordance with
Sec. 70.101, the new applicable standard shall become effective on the
first production shift following receipt of notification of such change
from MSHA.
(d) No valid end-of-shift equivalent concentration shall meet or
exceed the excessive concentration value (ECV) that corresponds to the
applicable standard in Table 70-2.
(e) No weekly accumulated exposure shall exceed the weekly
permissible accumulated exposure.
(f) When a valid end-of-shift equivalent concentration meets or
exceeds the applicable ECV in Table 70-2, or a weekly accumulated
exposure exceeds the weekly permissible accumulated exposure, the
operator shall take the following actions before production begins on
the next shift:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Implement corrective actions to assure compliance with the
applicable standard on the next and other subsequent production shifts;
(3) Submit to the District Manager for approval, within 3 days of
determining that the applicable standard was exceeded, the corrective
actions implemented to lower the concentration of respirable dust to
within the applicable standard as a proposed change to the approved
ventilation plan;
(4) Review the adequacy of the approved CPDM Performance Plan.
Within 7 calendar days following posting of the end-of-shift equivalent
concentration or weekly accumulated exposure on the mine bulletin
board, the operator shall submit any plan revisions to the District
Manager for approval; and
(5) Record the reported excessive dust condition as part of and in
the same manner as the records for hazardous conditions required by
Sec. 75.363 of this chapter. The record shall include:
(i) Dates of sampling;
(ii) Lengths of sampled shifts;
(iii) Locations within the mine and the occupation where samples
were collected;
(iv) The end-of-shift equivalent concentration or weekly
accumulated exposure and weekly permissible accumulated exposure; and
(v) Corrective actions taken to reduce the concentration of
respirable coal mine dust to or below the applicable standard.
(g) When a valid end-of-shift equivalent concentration exceeds the
applicable standard but is less than the applicable ECV in Table 70-2,
the operator shall take the following actions:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Implement corrective actions to assure compliance with the
applicable standard on the next and subsequent production shifts;
[[Page 64490]]
(3) Record the reported excessive dust condition as part of and in
the same manner as the records for hazardous conditions required by
Sec. 75.363 of this chapter. The record shall include:
(i) Date of sampling;
(ii) Length of the sampled shift;
(iii) Location within the mine and the occupation where the sample
was collected;
(iv) The end-of-shift equivalent concentration; and
(v) Corrective action taken to reduce the concentration of
respirable coal mine dust to or below the applicable standard; and
(4) Review the adequacy of the approved CPDM Performance Plan. The
operator shall submit to the District Manager for approval any plan
revisions within 7 calendar days following posting of the end-of-shift
equivalent concentration on the mine bulletin board.
Table 70-2--Excessive Concentration Values (ECV) Based on Single-Shift
CPDM Equivalent Concentration Measurements
------------------------------------------------------------------------
ECV (mg/
Applicable Standard (mg/m\3\) m\3\)
------------------------------------------------------------------------
2.0.......................................................... 2.26
1.9.......................................................... 2.15
1.8.......................................................... 2.04
1.7.......................................................... 1.92
1.6.......................................................... 1.81
1.5.......................................................... 1.70
1.4.......................................................... 1.59
1.3.......................................................... 1.47
1.2.......................................................... 1.36
1.1.......................................................... 1.25
1.0.......................................................... 1.13
0.9.......................................................... 1.02
0.8.......................................................... 0.91
0.7.......................................................... 0.80
0.6.......................................................... 0.68
0.5.......................................................... 0.57
0.4.......................................................... 0.46
0.3.......................................................... 0.34
0.2.......................................................... 0.23
------------------------------------------------------------------------
(h) During the period of [effective date of rule] through
[effective date plus 24 months], if an operator is unable to maintain
compliance with the applicable standard for an MMU and has determined
that all feasible engineering or environmental controls are being used
on the MMU, the operator may request through the District Manager that
the Administrator for Coal Mine Safety and Health approve the use of
supplementary controls for a period not to exceed 6 months, including
worker rotation, in conjunction with monitoring miners' exposures with
CPDMs to reduce affected miners' dust exposures. The operator shall
provide a report that evaluates the specific situation in the MMU,
outlines all controls that will be used during this time period to
prevent miners from being exposed to concentrations exceeding the
applicable standard, addresses the actions that will be taken to reduce
miners' exposures through the use of engineering and environmental
controls, and establishes the time line for the implementation of the
engineering and environmental controls. The District Manager will
address this request through the approval process associated with the
mine ventilation plan.
Sec. 70.209 Sampling of designated areas.
(a) The operator shall sample each DA for five consecutive
production shifts every calendar quarter using a CMDPSU or CPDM. The
quarterly periods are:
January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31
(b) When the respirable dust standard is changed in accordance with
Sec. 70.101, the new applicable standard shall become effective on the
first production shift following receipt of the notification of such
change from MSHA.
(1) If all samples from the most recent quarterly sampling period
do not exceed the new applicable standard, respirable dust sampling of
the DA shall begin on the first production shift during the next
quarterly period following receipt of such change from MSHA.
(2) If any sample from the most recent quarterly sampling period
exceeds the new applicable standard, the operator shall make necessary
adjustments to the dust control parameters in the mine ventilation plan
within three days and then collect samples from the affected DA on
consecutive shifts until five valid representative samples are
collected. The samples collected will be treated as normal quarterly
samples under this part.
(c) If using a CMDPSU, no valid single-shift sample equivalent
concentration shall meet or exceed the ECV that corresponds to the
applicable standard in Table 70-1; or if using a CPDM, no valid end-of-
shift equivalent concentration shall meet or exceed the applicable ECV
in Table 70-2.
(d) Upon issuance of a citation for a violation of the applicable
standard, paragraphs (a) and (b)(2) of this section shall not apply to
that DA until the violation is abated in accordance with paragraph (e)
of this section.
(e) During the time for abatement fixed in a citation for violation
of the applicable standard, the operator shall take the following
actions:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Submit to the District Manager for approval proposed corrective
actions to lower the concentration of respirable dust to within the
applicable standard; and
(3) Upon approval by the District Manager, implement the proposed
corrective actions and then sample the affected DA on each production
shift until five valid representative samples are taken.
(f) A citation for violation of the applicable standard shall be
terminated by MSHA when the equivalent concentration of each of the
five valid operator abatement samples is at or below the applicable
standard, the operator has submitted to the District Manager revised
dust control parameters as part of the mine ventilation plan applicable
to the DA in the citation, and such changes have been approved by the
District Manager. The revised parameters shall reflect the control
measures used to abate the violation.
(g) If an operator uses a CPDM to meet the requirements in
paragraph (a) of this section and a valid end-of-shift equivalent
concentration exceeds the applicable standard but is less than the
applicable ECV in Table 70-2, the operator shall take the following
actions:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Implement corrective actions to assure compliance with the
applicable standard on the next and other subsequent production shifts;
and
(3) Record the reported excessive dust condition as part of and in
the same manner as the records for hazardous conditions required by
Sec. 75.363 of this chapter. The record shall include:
(i) Date of sampling;
(ii) Length of the sampled shift;
(iii) Location within the mine and the occupation where the sample
was collected;
(iv) The end-of-shift equivalent concentration; and
(v) Corrective action implemented to reduce the concentration of
respirable coal mine dust to or below the applicable standard; and
(4) Review the adequacy of the approved CPDM Performance Plan. The
operator shall submit to the District Manager for approval any plan
revisions within 7 calendar days following posting of the end-of-shift
equivalent
[[Page 64491]]
concentration on the mine bulletin board.
(h) MSHA approval of the operator's ventilation system and methane
and dust control plan may be revoked based on samples taken by MSHA or
in accordance with this part 70.
Sec. 70.210 Respirable dust samples; transmission by operator.
(a) If using a CMDPSU, the operator shall transmit within 24 hours
after the end of the sampling shift all samples collected to fulfill
the requirements of this part in containers provided by the
manufacturer of the filter cassette to: Respirable Dust Processing
Laboratory, Pittsburgh Safety and Health Technology Center, Cochrans
Mill Road, Building 38, P.O. Box 18179, Pittsburgh, Pennsylvania 15236-
0179, or to any other address designated by the District Manager.
(b) The operator shall not open or tamper with the seal of any
filter cassette or alter the weight of any filter cassette before or
after it is used to fulfill the requirements of this part.
(c) A person certified in sampling shall properly complete the dust
data card that is provided by the manufacturer for each filter
cassette. The card shall have an identification number identical to
that on the cassette used to take the sample and be submitted to MSHA
with the sample. Each card shall be signed by the certified person who
actually performed the required examinations during the sampling shift
and shall include that person's MSHA Individual Identification Number
(MIIN). Respirable dust samples with data cards not properly completed
shall be voided by MSHA.
(d) All respirable dust samples collected by the operator shall be
considered taken to fulfill the sampling requirements of part 70, 71 or
90 of this title, unless the sample has been identified in writing by
the operator to the District Manager, prior to the intended sampling
shift, as a sample to be used for purposes other than required by part
70, 71 or 90 of this title.
(e) Respirable dust samples received by MSHA in excess of those
required by this part shall be considered invalid samples.
(f) If using a CPDM, the designated mine official shall validate,
certify and transmit electronically to MSHA within 12 hours after the
end of the last sampling shift of the work week all daily sample and
error data file information collected during the previous calendar week
(Sunday through Saturday) and stored in the CPDM. All CPDM data files
transmitted to MSHA shall be maintained by the operator for at least 12
months.
Sec. 70.211 Respirable dust samples; report to operator; posting.
(a) MSHA shall provide the operator a report with the following
data on respirable dust samples submitted in accordance with this part:
(1) The mine identification number;
(2) The locations within the mine from which the samples were
taken;
(3) The concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for each
valid sample;
(4) The average concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for all
valid samples;
(5) The occupation code, where applicable;
(6) The reason for voiding any sample.
(b) Upon receipt, the operator shall post this data for at least 31
days on the mine bulletin board.
(c) If using a CPDM, the designated mine official shall validate,
certify and post on the mine bulletin board:
(1) Within 1 hour after the end of the sampling shift, the daily
end-of-shift sampling results for each monitored occupation and DA, if
applicable. The daily posting shall include:
(i) The mine identification number;
(ii) The locations within the mine from which the samples were
taken;
(iii) The concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for each
valid sample;
(iv) The total amount of exposure accumulated by the sampled
occupation during the shift;
(v) The occupation code, where applicable;
(vi) The reason for voiding any sample;
(vii) The shift length; and
(viii) Any other information required by the District Manager.
(2) Within 2 hours after the end of the last sampling shift of the
work week (Sunday through Saturday), the weekly accumulated exposure
(WAE) and the weekly permissible accumulated exposure (WPAE) for each
occupation sampled in an MMU. If the mine employs multiple crews at an
MMU to work the same shift but on different days during the same
calendar week, the operator shall post the WAE and WPAE for each crew
that was assigned to the occupation being monitored.
(3) This information shall be posted for at least 15 calendar days.
Sec. 70.212 Status change reports.
(a) If there is a change in operational status that affects the
respirable dust sampling requirements of this part, the operator shall
report the change in operational status of the mine, mechanized mining
unit, or designated area to the MSHA District Office or to any other
MSHA office designated by the District Manager. Status changes shall be
reported in writing or electronically within 3 working days after the
status change has occurred.
(b) Each specific operational status is defined as follows:
(1) Underground mine:
(i) Producing--has at least one MMU unit producing material.
(ii) Nonproducing--no material is being produced.
(iii) Abandoned--the work of all miners has been terminated and
production activity has ceased.
(2) MMU:
(i) Producing--producing material from a working section.
(ii) Nonproducing--temporarily ceased production of material.
(iii) Abandoned--permanently ceased production of material.
(3) DA:
(i) Producing--activity is occurring.
(ii) Nonproducing--activity has ceased.
(iii) Abandoned--the dust generating source has been withdrawn and
activity has ceased.
(c) Status changes affecting the operational readiness of any CPDM
shall be reported by the designated mine official to the MSHA District
Office or to any other MSHA office designated by the District Manager
within 24 hours after the status change has occurred. Status changes
shall be reported in writing or electronically.
Sec. Sec. 70.300 and 70.305 [Redesignated as Sec. Sec. 72.700 and
72.701]
6. Sections 70.300 and 70.305 are redesignated as Sec. Sec. 72.700
and 72.701 respectively.
Subpart D--[Reserved]
7. Subpart D heading removed and subpart reserved.
PART 71--MANDATORY HEALTH STANDARDS FOR SURFACE COAL MINES AND
SURFACE WORK AREAS OF UNDERGROUND COAL MINES
8. The authority citation for part 71 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), and 957.
9. Section 71.1 is revised to read as follows:
[[Page 64492]]
Sec. 71.1 Scope.
This part 71 sets forth mandatory health standards for each surface
coal mine and for the surface work areas of each underground coal mine
subject to the Federal Mine Safety and Health Act of 1977, as amended.
9. Section 71.2 is amended by:
a. Removing the alphabetical paragraph designations and arranging
existing definitions in alphabetical order;
b. Adding definitions for ``Approved sampling device,'' ``Coal mine
dust personal sampler unit (CMDPSU),'' ``Continuous personal dust
monitor (CPDM),'' ``Equivalent concentration,'' and ``Representative
samples;''
c. Revising definitions for ``Act,'' ``Designated work position
(DWP),'' ``Quartz,'' and ``Work position.''
The additions and revisions are revised to read as follows:
Sec. 71.2 Definitions.
Act. The Federal Mine Safety and Health Act of 1977, Public Law 91-
173, as amended by Public Law 95-164 and Public Law 109-236.
* * * * *
Approved sampling device. A sampling device approved by the
Secretary and Secretary of Health and Human Services (HHS) under part
74 of this title.
* * * * *
Coal mine dust personal sampler unit (CMDPSU). A personal sampling
device approved under part 74, subpart B, of this title.
* * * * *
Continuous personal dust monitor (CPDM). A personal sampling device
approved under part 74, subpart C, of this title.
Designated work position (DWP). A work position at a surface area
of a coal mine required to be sampled by this part. The DWP designation
consists of a four-digit surface area number assigned by MSHA
identifying the specific physical portion of a surface coal mine or
surface area of an underground mine that is affected, and a three-digit
MSHA coal mining occupation code describing the location to which a
miner is assigned in the performance of his or her regular duties.
* * * * *
Equivalent concentration. The concentration of respirable coal mine
dust expressed in milligrams per cubic meter of air (mg/m\3\),
determined by dividing the weight of dust in milligrams collected on
the filter of an approved sampling device by the volume of air in cubic
meters passing through the collection filter (sampling time in minutes
times the sampling airflow rate in cubic meters per minute), and then
converting this concentration to an equivalent 8-hour exposure as
measured by the Mining Research Establishment (MRE) instrument. When
the approved sampling device is:
(1) The CMDPSU, the equivalent concentration is determined by first
multiplying the concentration of respirable coal mine dust by the MRE
conversion factor prescribed by the Secretary and then normalizing this
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling
time in minutes if longer than 8 hours.
(2) The CPDM, the device shall be programmed to directly report the
end-of-shift equivalent concentration as an MRE 8-hour equivalent
concentration.
(3) Either the CMDPSU or CPDM and the sampled work shift is less
than 8 hours, the value of t used for normalizing the MRE-equivalent
concentration to an 8-hour exposure measurement shall be 480 minutes.
* * * * *
Quartz. Crystalline silicon dioxide (SiO2) as measured
by:
(1) MSHA Analytical Method P-7: Infrared Determination of Quartz in
Respirable Coal Mine Dust; or
(2) Any method approved by MSHA as providing a measurement of
quartz equivalent to that obtained by MSHA Analytical Method P-7.
Representative samples. Respirable dust samples that reflect
typical dust concentration levels in the working environment of the DWP
when performing normal duties.
* * * * *
Work position. An occupation identified by an MSHA three-digit code
number describing a location to which a miner is assigned in the
performance of his or her normal duties.
10. Subpart B is revised to read as follows:
Subpart B--Dust Standards
Sec.
71.100 Respirable dust standard.
71.101 Respirable dust standard when quartz is present.
Sec. 71.100 Respirable dust standard.
Each operator shall continuously maintain the average concentration
of respirable dust in the mine atmosphere during each shift to which
each miner in the active workings of each mine is exposed, as measured
with an approved sampling device and in terms of an equivalent
concentration, at or below:
(a) 2.0 milligrams of respirable dust per cubic meter of air (mg/
m\3\).
(b) 1.7 mg/m\3\ as of [date 6 months after the effective date of
the final rule].
(c) 1.5 mg/m\3\ as of [date 12 months after the effective date of
the final rule].
(d) 1.0 mg/m\3\ as of [date 24 months after the effective date of
the final rule].
Sec. 71.101 Respirable dust standard when quartz is present.
(a) Each operator shall continuously maintain the average
concentration of respirable quartz dust in the mine atmosphere during
each shift to which each miner in the active workings of each mine is
exposed at or below 0.1 mg/m\3\ (100 micrograms per cubic meter or
[micro]g/m\3\) as measured with an approved sampling device and in
terms of an equivalent concentration.
(b) When the concentration of respirable quartz dust exceeds 100
[micro]g/m\3\, the operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during each
shift to which each miner in the active workings is exposed as measured
with an approved sampling device and in terms of an equivalent
concentration at or below the applicable standard. The applicable
standard is computed by dividing the percent of quartz into the number
10. The application of this formula shall not result in the applicable
standard that exceeds the standard established by Sec. 71.100(a) of
this section.
Example: Assume the sampled DWP is on a 2.0-mg/m\3\ dust
standard. Suppose a valid representative dust sample with an
equivalent concentration of 1.0 mg/m\3\contains 16.7% of quartz
dust, which corresponds to a quartz concentration of 167 [micro]g/
m\3\. Therefore, the average concentration of respirable dust in the
mine atmosphere associated with that DWP shall be maintained on each
shift at or below 0.6 mg/m\3\ (10/16.7% = 0.6 mg/m\3\).
11. Subpart C is revised to read as follows:
Subpart C--Sampling Procedures
Sec.
71.201 Sampling; general and technical requirements.
71.202 Certified person; sampling.
71.203 Certified person; maintenance and calibration.
71.204 Approved sampling devices; maintenance and calibration.
71.205 Approved sampling devices; operation; air flowrate.
71.206 CPDM Performance Plan.
71.207 Sampling of designated work positions.
71.208 Respirable dust samples; transmission by operator.
71.209 Respirable dust samples; report to operator; posting.
71.210 Status change reports.
[[Page 64493]]
Sec. 71.201 Sampling; general and technical requirements.
(a) Each operator shall take representative samples of the
concentration of respirable dust in the active workings of the mine as
required by this part with an approved sampling device.
(b) Sampling devices shall be worn or carried directly to and from
the DWP to be sampled. Sampling devices shall remain with the DWP and
shall be operational during the entire shift, which includes the total
time spent in the DWP and while travelling to and from the DWP being
sampled. If the work shift to be sampled is longer than 12 hours and
the sampling device is:
(1) A CMDPSU, the operator shall switch-out the unit's sampling
pump prior to the 13th-hour of operation.
(2) A CPDM, the operator shall switch-out the CPDM with a fully
charged device prior to the 13th-hour of operation.
(c) If using a CMDPSU, one control filter shall be used for each
shift of sampling. Each control filter shall:
(1) Have the same pre-weight date (noted on the dust data card) as
the ones used for sampling;
(2) Remain plugged at all times;
(3) Be exposed to the same time, temperature, and handling
conditions as the ones used for sampling; and
(4) Be kept with the exposed samples after sampling.
(d) Records showing the length of each normal work shift for each
DWP shall be made and retained at least six months and shall be made
available for inspection by authorized representatives of the Secretary
and the representative of miners or submitted to the District Manager
when requested in writing.
(e) Upon request from the District Manager, the operator shall
submit the date and time any respirable dust sampling required by this
part will begin. This information shall be submitted at least 48 hours
prior to scheduled sampling.
(f) Upon written request by the operator, the District Manager may
waive the rain restriction for a normal work shift as defined in Sec.
71.2 for a period not to exceed two months, if the District Manager
determines that:
(1) The operator will not have reasonable opportunity to complete
the respirable dust sampling required by this part without the waiver
because of the frequency of rain; and
(2) The operator did not have reasonable opportunity to complete
the respirable dust sampling required by this part prior to requesting
the waiver.
(g) Operators using CPDMs shall provide training to all miners
expected to wear the CPDM. The training shall be completed prior to a
miner being required to wear the CPDM and then every 12 months
thereafter. The training shall include:
(1) Explaining the basic features and capabilities of the CPDM;
(2) How to set-up the CPDM for compliance sampling;
(3) A discussion of the various types of information displayed by
the CPDM and how to access that information;
(4) How to start and stop a short-term sample run during compliance
sampling; and
(5) The importance of continuously monitoring dust concentrations
and properly wearing the CPDM.
(h) An operator shall keep a record of the CPDM training at the
mine site for two years after completion of the training. An operator
may keep the record elsewhere if the record is immediately accessible
from the mine site by electronic transmission. Upon request from an
authorized representative of the Secretary, Secretary of HHS, or
representative of miners, the operator shall promptly provide access to
any such training records.
Sec. 71.202 Certified person; sampling.
(a) The respirable dust sampling required by this part shall be
performed by a certified person.
(b) To be certified, a person shall complete the applicable MSHA
course of instruction and pass the MSHA examination demonstrating
competency in sampling procedures. Persons not certified in sampling,
and those certified only in maintenance and calibration procedures in
accordance with Sec. 71.203(b), are not permitted to collect
respirable dust samples required by this part or handle approved
sampling devices when being used in sampling.
(c) To maintain certification, a person must pass the MSHA
examination demonstrating competency in sampling procedures every three
years.
(d) MSHA may revoke a person's certification for failing to pass
the MSHA examination or to properly carry out the required sampling
procedures.
Sec. 71.203 Certified person; maintenance and calibration.
(a) Approved sampling devices shall be maintained and calibrated by
a certified person.
(b) To be certified, a person shall complete the applicable MSHA
course of instruction and pass the MSHA examination demonstrating
competency in maintenance and calibration procedures for approved
sampling devices. If using a CMDPSU, necessary maintenance of the
sampling head assembly can be performed by persons certified in
sampling or maintenance and calibration.
(c) To maintain certification, a person must pass the MSHA
examination demonstrating competency in maintenance and calibration
procedures every three years.
(d) MSHA may revoke a person's certification for failing to pass
the MSHA examination or to properly carry out the required maintenance
and calibration procedures.
Sec. 71.204 Approved sampling devices; maintenance and calibration.
(a) Approved sampling devices shall be maintained as approved under
part 74 of this chapter and calibrated in accordance with MSHA
Informational Report IR 1240 (1996) ``Calibration and Maintenance
Procedures for Coal Mine Respirable Dust Samplers'' or in accordance
with the manufacturer's recommendations if using a CPDM. Only persons
certified in maintenance and calibration can perform maintenance work
on the pump unit of approved sampling devices.
(b) Approved sampling devices shall be calibrated at the flowrate
of 2.0 liters of air per minute (L/min), or at a different flowrate
recommended by the manufacturer or prescribed by the Secretary or
Secretary of HHS for the particular device, before they are put into
service and, thereafter, at time intervals recommended by the
manufacturer or prescribed by the Secretary or Secretary of HHS.
(c) If using a CMDPSU, sampling devices shall be examined and
tested by a person certified in sampling or in maintenance and
calibration within 3 hours before the start of the shift on which the
approved sampling devices will be used to collect respirable dust
samples. This is to assure that the sampling devices are clean and in
proper working condition. This examination and testing shall include
the following:
(1) Examination of all components of the cyclone assembly to assure
that they are clean and free of dust and dirt. This includes examining
the interior of the connector barrel (located between the cassette
assembly and vortex finder), vortex finder, cyclone body and grit pot;
(2) Examination of the inner surface of the cyclone body to assure
that it is free of scoring or scratch marks on the inner surface of the
cyclone where the air flow is directed by the vortex finder into the
cyclone body;
(3) Examination of the external hose connecting the pump unit to
the
[[Page 64494]]
sampling head assembly to assure that it is clean and free of leaks;
and
(4) Examination of the clamping and positioning of the cyclone
body, vortex finder and cassette to assure that they are rigid, in
alignment, firmly in contact and airtight.
(5) Testing the voltage of each battery while under actual load to
assure the battery is fully charged. This requires that a fully
assembled and examined sampling head assembly be attached to the pump
inlet with the pump unit running when the voltage check is made. The
voltage for nickel cadmium cell batteries shall not be lower than the
product of the number of cells in the battery multiplied by 1.25. The
voltage for other than nickel cadmium cell batteries shall not be lower
than the product of the number of cells in the battery multiplied by
the manufacturer's nominal voltage per cell value.
(d) If using a CPDM, the certified person in sampling or in
maintenance and calibration shall follow the examination, testing and
set-up procedures contained in the approved CPDM Performance Plan.
(e) MSHA Informational Report IR 1240 (1996) referenced in
paragraph (a) of this section is incorporated-by-reference. This
incorporation-by-reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected or obtained at MSHA, Coal Mine Safety and Health, 1100
Wilson Blvd., Room 2424, Arlington, Virginia 22209-3939 and at each
MSHA Coal Mine Safety and Health district office. Copies may be
inspected at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
Sec. 71.205 Approved sampling devices; operation; air flowrate.
(a) Approved sampling devices shall be operated at the flowrate of
2.0 L/min, or at a different flowrate recommended by the manufacturer
or prescribed by the Secretary or Secretary of HHS.
(b) If using a CMDPSU, each sampling device shall be examined each
shift by a person certified in sampling during:
(1) The second hour after being put into operation to assure it is
in the proper location, operating properly and at the proper flowrate.
If the proper flowrate is not maintained, necessary adjustments shall
be made by the certified person.
(2) The last hour of operation to assure that it is operating
properly and at the proper flowrate. If the proper flowrate is not
maintained, the respirable dust sample shall be transmitted to MSHA
with a notation by the certified person on the back-side of the dust
data card stating that the proper flowrate was not maintained. Other
events occurring during the collection of respirable dust samples that
may affect the validity of the sample, such as dropping of the sampling
head assembly onto the mine floor, shall be noted on the back-side of
the dust data card.
(c) If using a CPDM, the certified person shall examine the
sampling device during the shift in accordance with the procedures
contained in the approved CPDM Performance Plan.
Sec. 71.206 CPDM Performance Plan.
(a) If using a CPDM, the operator shall have an approved CPDM
Performance Plan to ensure that the regular duties of the DWP shall not
expose miners to concentrations of respirable coal mine dust in excess
of the applicable standard. The operator shall develop a proposed CPDM
Performance Plan and submit it to the District Manager. The proposed
CPDM Performance Plan shall not be implemented until approved by the
District Manager.
(1) The mine operator shall notify the representative of miners at
least 5 days prior to submission of a proposed CPDM Performance Plan
and any proposed revision to a CPDM Performance Plan. If requested, the
mine operator shall provide a copy to the representative of miners at
the time of notification;
(2) A copy of the proposed CPDM Performance Plan, and a copy of any
proposed revision, submitted for approval shall be made available for
inspection by the representative of miners; and
(3) A copy of the proposed CPDM Performance Plan and a copy of any
proposed revision submitted for approval shall be posted on the mine
bulletin board at the time of submittal. The proposed plan or proposed
revision shall remain posted until it is approved, withdrawn, or
denied.
(4) Following receipt of the proposed plan or proposed revision,
the representative of miners may submit timely comments to the District
Manager, in writing, for consideration during the review process. A
copy of these comments shall also be provided to the operator by the
District Manager upon request.
(b) The approved CPDM Performance Plan shall include the names or
titles of the responsible mine officials designated by the operator and
the following information:
(1) The DWPs that will be sampled using a CPDM. Each DWP shall be
assigned a 9-digit identification number as follows:
(i) The first four digits identify the surface work area of the
mine;
(ii) The next three digits identify the sampled work position or
occupation;
(iii) The eighth digit identifies the particular shift being
sampled (e.g., 1st, 2nd or 3rd); and
(iv) The final digit identifies the particular miner assigned to
that DWP if the mine employs other miners that perform similar duties
in the rest of the mine.
(2) The pre-operational examinations, testing and set-up procedures
to verify the operational readiness of the sampling device before each
sampling shift;
(3) Procedures that address downloading of end-of-shift sampling
information, and validation, certification and posting of reported
results;
(4) Procedures for weekly transmittals of certified sampling data
files electronically to MSHA;
(5) The routine daily and other required scheduled maintenance
procedures;
(6) Procedures or methods for verifying the calibration of each
CPDM; and
(7) The frequency with which dust concentrations being reported by
the CPDM shall be monitored by the designated mine official during the
shift;
(8) The types of actions permitted to be taken during the shift to
ensure the environment of the occupation being sampled remains in
compliance at the end of the shift.
(9) Any other information required by the District Manager.
(c) The approved CPDM Performance Plan and any revisions shall be:
(1) Provided upon request to the representative of miners by the
operator following notification of approval;
(2) Made available for inspection by the representative of miners;
and
(3) Posted on the mine bulletin board within 1 working day
following notification of approval, and shall remain posted for the
period that the plan is in effect.
(d) The District Manager may require an approved CPDM Performance
Plan to be revised if the District Manager determines that the plan is
inadequate to protect miners from exposure to concentrations of
respirable dust in excess of the applicable standard.
[[Page 64495]]
Sec. 71.207 Sampling of designated work positions.
(a) Each operator shall take one valid representative sample from
each DWP every calendar quarter. The quarterly periods are:
January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31
(b) Designated work position samples shall be collected at
locations to measure respirable dust generation sources in the active
workings. The work positions at each mine where DWP samples shall be
collected include:
(1) Each highwall drill operator (MSHA occupation code 384);
(2) Bulldozer operators (MSHA occupation code 368); and
(3) Other work positions designated by the District Manager for
sampling in accordance with Sec. 71.207(f).
(c) Operators with multiple work positions specified in paragraph
(b)(2) and (b)(3) of this section shall sample the DWP exposed to the
greatest respirable dust concentration in each work position performing
the same activity or task at the same location at the mine and exposed
to the same dust generation source. Each operator shall provide the
District Manager with a list identifying the specific work positions
where DWP samples will be collected for:
(1) Active mines--by [date 60 days after date of publication of
final rule];
(2) New mines--Within 30 calendar days of mine opening; or
(3) Change in operational status that increases or reduces the
number of active DWPs--within 7 calendar days of the change in status.
(d) Each DWP sample shall be taken on a normal work shift. If a
normal work shift is not achieved, the respirable dust sample shall be
transmitted to MSHA with a notation by the certified person on the
back-side of the dust data card stating that the sample was not taken
on a normal work shift. When a normal work shift is not achieved, the
sample for that shift may be voided by MSHA. However, any sample,
regardless of whether a normal work shift was achieved, that exceeds
the applicable standard by at least 0.1 mg/m\3\ shall be used to
determine compliance with this part.
(e) Unless otherwise directed by the District Manager, DWP samples
shall be taken by placing the sampling device as follows:
(1) Equipment operator: On the equipment operator or on the
equipment within 36 inches of the operator's normal working position;
(2) Non-equipment operators: On the miner assigned to the DWP or at
a location that represents the maximum concentration of dust to which
the miner is exposed.
(f) The District Manager may designate for sampling under this
section additional work positions at a surface coal mine and at a
surface work area of an underground coal mine where a concentration of
respirable dust exceeding 50 percent of the applicable standard has
been measured by one or more MSHA samples. Where the applicable
standard established in accordance with Sec. 71.101 is below the
respirable dust standard under Sec. 71.100, the District Manager may
designate for sampling additional work positions where a concentration
of respirable dust exceeding the applicable standard has been measured
by one or more MSHA samples.
(g) The District Manager may withdraw from sampling any DWP
designated for sampling under paragraph (f) of this section upon
finding that the operator is able to maintain continuing compliance
with the applicable standard. This finding shall be based on the
results of MSHA and operator samples taken during at least a one-year
period.
(h) When the respirable dust standard is changed in accordance with
Sec. 71.101, the new applicable standard shall become effective on the
first normal work shift following receipt of the notification of such
change from MSHA.
(1) If all samples from the most recent quarterly sampling period
do not exceed the new applicable standard, respirable dust sampling of
the DWP shall begin on the first normal work shift during the next
quarterly period following receipt of such change from MSHA.
(2) If any sample from the most recent quarterly sampling period
exceeds the new applicable standard, the operator shall make necessary
adjustments to the dust control parameters within three days and then
collect a sample from the affected DWP on a normal work shift. The
sample collected will be treated as a normal quarterly sample under
this part.
(i) If using a CMDPSU, no valid single-shift concentration shall
meet or exceed the excessive concentration value (ECV) that corresponds
to the applicable standard in Table 71-1; or, if using a CPDM, no valid
end-of-shift equivalent concentration shall meet or exceed the
applicable ECV in Table 71-2.
Table 71-1--Excessive Concentration Values (ECV) Based on Single-Shift
CMDPSU Equivalent Concentration Measurements
------------------------------------------------------------------------
ECV (mg/
Applicable standard (mg/m\3\) m\3\)
------------------------------------------------------------------------
2.0.......................................................... 2.33
1.9.......................................................... 2.22
1.8.......................................................... 2.12
1.7.......................................................... 2.01
1.6.......................................................... 1.90
1.5.......................................................... 1.79
1.4.......................................................... 1.69
1.3.......................................................... 1.59
1.2.......................................................... 1.47
1.1.......................................................... 1.37
1.0.......................................................... 1.26
0.9.......................................................... 1.16
0.8.......................................................... 1.05
0.7.......................................................... 0.95
0.6.......................................................... 0.85
0.5.......................................................... 0.74
0.4.......................................................... 0.65
0.3.......................................................... 0.54
0.2.......................................................... 0.44
------------------------------------------------------------------------
Table 71-2--Excessive Concentration Values (ECV) Based on Single-Shift
CPDM Equivalent Concentration Measurements
------------------------------------------------------------------------
ECV (mg/
Applicable standard (mg/m\3\) m\3\)
------------------------------------------------------------------------
2.0.......................................................... 2.26
1.9.......................................................... 2.15
1.8.......................................................... 2.04
1.7.......................................................... 1.92
1.6.......................................................... 1.81
1.5.......................................................... 1.70
1.4.......................................................... 1.59
1.3.......................................................... 1.47
1.2.......................................................... 1.36
1.1.......................................................... 1.25
1.0.......................................................... 1.13
0.9.......................................................... 1.02
0.8.......................................................... 0.91
0.7.......................................................... 0.80
0.6.......................................................... 0.68
0.5.......................................................... 0.57
0.4.......................................................... 0.46
0.3.......................................................... 0.34
0.2.......................................................... 0.23
------------------------------------------------------------------------
(j) Upon issuance of a citation for a violation of the applicable
standard, paragraphs (a) and (h)(2) of this section shall not apply to
that DWP until the violation is abated in accordance with paragraph (k)
of this section.
(k) During the time for abatement fixed in a citation for violation
of the applicable standard, the operator shall take the following
actions:
(1) Make approved respiratory equipment available to affected
miners in accordance with Sec. 72.700 of this chapter;
(2) Submit to the District Manager for approval proposed corrective
actions to
[[Page 64496]]
lower the concentration of respirable dust to within the applicable
standard; and
(3) Upon approval by the District Manager, implement the proposed
corrective actions and then sample the affected DWP on each normal work
shift until five valid representative samples are taken.
(4) If using a CPDM to meet the requirements of paragraph (a) of
this section, review the adequacy of the approved CPDM Performance
Plan. The operator shall submit any plan revisions to the District
Manager for approval within 7 calendar days following posting of the
end-of-shift equivalent concentration on the mine bulletin board.
(l) A citation for violation of the applicable standard shall be
terminated by MSHA when the equivalent concentration of each of the
five valid operator abatement samples is at or below the applicable
standard and, within 15 calendar days after receipt of sampling results
from MSHA, the operator has submitted to the District Manager for
approval a proposed dust control plan applicable to the DWP in the
citation or notice or proposed changes to the approved dust control
plan as prescribed in Sec. 71.300. The proposed plan parameters or
proposed changes shall reflect the control measures used to abate the
violation.
(m) Upon notification from MSHA that any valid representative
sample taken with a CMDPSU from a DWP to meet the requirements of
paragraph (a) of this section exceeds the applicable standard but is
below the applicable ECV in Table 71-1, the operator shall, within 15
calendar days of notification, sample that DWP each normal work shift
until five valid representative samples are taken. The operator shall
begin sampling on the first normal work shift following receipt of
notification. These samples will be evaluated to determine compliance
with the applicable standard for this sampling period.
(n) If using a CPDM to meet the requirements in paragraph (a) of
this section and a valid end-of-shift equivalent concentration exceeds
the applicable standard but is less than the applicable ECV in Table
71-2, the operator shall:
(1) On the first normal work shift after determining that the
applicable standard was exceeded, sample that DWP each normal work
shift until five valid representative samples are taken. These samples
will be evaluated to determine compliance with the applicable standard
for this sampling period; and
(2) Review the adequacy of the approved CPDM Performance Plan. The
operator shall submit any plan revisions to the District Manager for
approval within 7 calendar days following posting of the end-of-shift
equivalent concentration on the mine bulletin board.
Sec. 71.208 Respirable dust samples; transmission by operator.
(a) If using a CMDPSU, the operator shall transmit within 24 hours
after the end of the sampling shift all samples collected to fulfill
the requirements of this part in containers provided by the
manufacturer of the filter cassette to: Respirable Dust Processing
Laboratory, Pittsburgh Safety and Health Technology Center, Cochrans
Mill Road, Building 38, P.O. Box 18179, Pittsburgh, Pennsylvania 15236-
0179, or to any other address designated by the District Manager.
(b) The operator shall not open or tamper with the seal of any
filter cassette or alter the weight of any filter cassette before or
after it is used to fulfill the requirements of this part.
(c) A person certified in sampling shall properly complete the dust
data card that is provided by the manufacturer for each filter
cassette. The card shall have an identification number identical to
that on the cassette used to take the sample and be submitted to MSHA
with the sample. Each card shall be signed by the certified person who
actually performed the required two examinations during the sampling
shift and shall include that person's MSHA Individual Identification
Number (MIIN). Respirable dust samples with data cards not properly
completed shall be voided by MSHA.
(d) All respirable dust samples collected by the operator shall be
considered taken to fulfill the sampling requirements of part 70, 71 or
90 of this title, unless the sample has been identified in writing by
the operator to the District Manager, prior to the intended sampling
shift, as a sample to be used for purposes other than required by part
70, 71 or 90 of this title.
(e) Respirable dust samples received by MSHA in excess of those
required by this part shall be considered invalid samples.
(f) If using a CPDM, the designated mine official shall validate,
certify and transmit electronically to MSHA within 12 hours after the
end of the last sampling shift for a DWP all sample and error data file
information collected during the previous shifts and stored in the
CPDM. All CPDM data files transmitted to MSHA shall be maintained by
the operator for at least 12 months.
Sec. 71.209 Respirable dust samples; report to operator; posting.
(a) MSHA shall provide the operator a report with the following
data on respirable dust samples submitted in accordance with this part:
(1) The mine identification number;
(2) The DWP at the mine from which the samples were taken;
(3) The concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for each
valid sample; and
(4) The reason for voiding any sample.
(b) Upon receipt, the operator shall post this data for at least 46
days on the mine bulletin board.
(c) If using a CPDM, the designated mine official shall validate,
certify and post on the mine bulletin board:
(1) Within 1 hour after the end of the sampling shift, the daily
end-of-shift sampling results for each DWP. The daily posting shall
include:
(i) The mine identification number;
(ii) The DWP at the mine from which the samples were taken;
(iii) The concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for each
valid sample;
(iv) The reason for voiding any sample;
(v) The shift length; and
(vi) Any other information required by the District Manager.
(2) This information shall be posted at least 46 calendar days.
Sec. 71.210 Status change reports.
(a) If there is a change in operational status that affects the
respirable dust sampling requirements of this part, the operator shall
report the change in operational status of the mine or DWP to the MSHA
District Office or to any other MSHA office designated by the District
Manager. Status changes shall be reported in writing or electronically
within 3 working days after the status change has occurred.
(b) Each specific operational status is defined as follows:
(1) Underground mine:
(i) Producing--has at least one mechanized mining unit producing
material.
(ii) Nonproducing--no material is being produced.
(iii) Abandoned--the work of all miners has been terminated and
production activity has ceased.
(2) Surface mine:
(i) Producing--normal activity is occurring and coal is being
produced or processed or other material or equipment is being handled
or moved.
[[Page 64497]]
(ii) Nonproducing--normal activity is not occurring and coal is not
being produced or processed, and other material or equipment is not
being handled or moved.
(iii) Abandoned--the work of all miners has been terminated and all
activity has ceased.
(3) DWP:
(i) Producing--normal activity is occurring.
(ii) Nonproducing--normal activity is not occurring.
(iii) Abandoned--the dust generating source has been withdrawn and
activity has ceased.
(c) Status changes affecting the operational readiness of any CPDM
shall be reported by the designated mine official to the MSHA District
Office or to any other MSHA office designated by the District Manager
within 24 hours after the status change has occurred. Status changes
shall be reported in writing or electronically.
12. Subpart D is revised to read as follows:
Subpart D-Respirable Dust Control Plans
Sec.
71.300 Respirable dust control plan; filing requirements.
71.301 Respirable dust control plan; approval by District Manager
and posting.
Sec. 71.300 Respirable dust control plan; filing requirements.
(a) As required by Sec. 71.207(l), the operator shall submit to
the District Manager for approval a written respirable dust control
plan applicable to the DWP identified in the citation. The respirable
dust control plan and revisions thereof shall be suitable to the
conditions and the mining system of the coal mine and shall be adequate
to continuously maintain respirable dust within the applicable standard
at the DWP.
(1) The mine operator shall notify the representative of miners at
least 5 days prior to submission of a respirable dust control plan and
any revision to a dust control plan. If requested, the mine operator
shall provide a copy to the representative of miners at the time of
notification;
(2) A copy of the proposed respirable dust control plan, and a copy
of any proposed revision, submitted for approval shall be made
available for inspection by the representative of miners; and
(3) A copy of the proposed respirable dust control plan, and a copy
of any proposed revision, submitted for approval shall be posted on the
mine bulletin board at the time of submittal. The proposed plan or
proposed revision shall remain posted until it is approved, withdrawn,
or denied.
(4) Following receipt of the proposed plan or proposed revision,
the representative of miners may submit timely comments to the District
Manager, in writing, for consideration during the review process. Upon
request, a copy of these comments shall be provided to the operator by
the District Manager.
(b) Each respirable dust control plan shall include at least the
following:
(1) The mine identification number and DWP number assigned by MSHA,
the operator's name, mine name, mine address, and mine telephone number
and the name, address, and telephone number of the principal officer in
charge of health and safety at the mine;
(2) The specific DWP at the mine to which the plan applies;
(3) A detailed description of the specific respirable dust control
measures used to abate the violation of the respirable dust standard;
and
(4) A detailed description of how each of the respirable dust
control measures described in response to paragraph (b)(3) of this
section will continue to be used by the operator, including at least
the specific time, place and manner the control measures will be used.
Sec. 71.301 Respirable dust control plan; approval by District
Manager and posting.
(a) The District Manager will approve respirable dust control plans
on a mine-by-mine basis. When approving respirable dust control plans,
the District Manager shall consider whether:
(1) The respirable dust control measures would be likely to
maintain concentrations of respirable coal mine dust at or below the
applicable standard; and
(2) The operator's compliance with all provisions of the respirable
dust control plan could be objectively ascertained by MSHA.
(b) MSHA may take respirable dust samples to determine whether the
respirable dust control measures in the operator's plan effectively
maintain concentrations of respirable coal mine dust at or below the
applicable standard.
(c) The operator shall comply with all provisions of each
respirable dust control plan upon notice from MSHA that the respirable
dust control plan is approved.
(d) The approved respirable dust control plan and any revisions
shall be:
(1) Provided upon request to the representative of miners by the
operator following notification of approval;
(2) Made available for inspection by the representative of miners;
and
(3) Posted on the mine bulletin board within 1 working day
following notification of approval, and shall remain posted for the
period that the plan is in effect.
(e) The operator may review respirable dust control plans and
submit proposed revisions to such plans to the District Manager for
approval.
PART 72--[AMENDED]
13. The authority citation for part 72 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), and 957.
14. Subpart B is added to part 72 to read as follows:
Subpart B-Medical Surveillance
Sec. 72.100 Periodic examinations.
(a) Each operator of a coal mine shall provide to each miner
periodic examinations including chest x-rays, spirometry, symptom
assessment, and occupational history at a frequency specified in this
section and at no cost to the miner.
(1) Each operator shall use facilities approved by the National
Institute for Occupational Safety and Health (NIOSH) to provide
examinations specified in paragraph (a) of this section.
(b) Voluntary examinations. Each operator shall provide the
opportunity to have the examinations specified in Sec. 72.100(a) at
least every 5 years to all miners employed at a coal mine. The
examinations shall be available during a 6-month period that begins no
less than 3.5 years and not more than 4.5 years from the end of the
last 6-month period.
(c) Mandatory examinations. For each miner who begins work at a
coal mine for the first time, the operator shall provide examinations
specified in Sec. 72.100(a) as follows:
(1) An initial examination no later than 30 days after beginning
employment;
(2) A follow-up examination no later than 3 years after the initial
examination in paragraph (c)(1) of this section; and
(3) A follow-up examination no later than 2 years after the
examinations in paragraph (c)(2) of this section if the chest x-ray
shows evidence of pneumoconiosis or the spirometry examination
indicates evidence of decreased lung function. For this purpose,
evidential criteria will be defined by NIOSH.
(d) Each mine operator shall develop and submit for approval to
NIOSH a plan for providing miners with the examinations specified in
Sec. 72.100(a)
[[Page 64498]]
and a roster specifying the name and current address of each miner
covered by the plan.
(e) Each mine operator shall post on the mine bulletin board at all
times the approved plan for providing the examinations specified in
Sec. 72.100(a).
15. Add Sec. 72.700 to subpart E of part 72 to read as follows:
Sec. 72.700 Respiratory equipment; respirable dust.
(a) Respiratory equipment approved by NIOSH under 42 CFR part 84
shall be made available to all persons as required under parts 70, 71,
and 90 of this chapter. Use of respirators shall not be substituted for
environmental control measures in the active workings. Each operator
shall maintain an adequate supply of respiratory equipment.
(b) When required to make respirators available, the operator shall
provide training prior to the miner's next scheduled work shift, unless
the miner received training within the previous 12 months on the types
of respirators made available. The training shall include: the care,
fit, use, and limitations of each type of respirator.
(c) An operator shall keep a record of the training at the mine
site for two years after completion of the training. An operator may
keep the record elsewhere if the record is immediately accessible from
the mine site by electronic transmission. Upon request from an
authorized representative of the Secretary, Secretary of HHS, or
representative of miners, the operator shall promptly provide access to
any such training records.
16. Add Sec. 72.701 to subpart E of part 72 to read as follows:
Sec. 72.701 Respiratory equipment; gas, dusts, fumes, or mists.
Respiratory equipment approved by NIOSH under 42 CFR part 84 shall
be provided to persons exposed for short periods to inhalation hazards
from gas, dusts, fumes, or mists. When the exposure is for prolonged
periods, other measures to protect such persons or to reduce the hazard
shall be taken.
17. Add Sec. 72.800 to subpart E of part 72 to read as follows:
Sec. 72.800 Single, full-shift measurement of respirable coal mine
dust.
The Secretary may use a single, full-shift measurement of
respirable coal mine dust to determine average concentration on a shift
if that measurement accurately represents atmospheric conditions to
which a miner is exposed during such shift.
PART 75--MANDATORY SAFETY STANDARDS--UNDERGROUND COAL MINES
18. The authority citation for part 75 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), and 957.
19. Amend Sec. 75.325 by revising paragraph (a)(2) to read as
follows:
Sec. 75.325 Air quantity.
(a) * * *
(2) The quantity of air reaching the working face shall be
determined at or near the face end of the line curtain, ventilation
tubing, or other ventilation control device. If the curtain, tubing, or
device extends beyond the last row of permanent roof supports, the
quantity of air reaching the working face shall be determined behind
the line curtain or in the ventilation tubing at or near the last row
of permanent supports. When machine mounted dust collectors are used in
conjunction with blowing face ventilation systems, the quantity of air
reaching the working face shall be determined with the dust collector
turned off.
* * * * *
20. Amend Sec. 75.332 by revising paragraph (a)(1) to read as
follows:
Sec. 75.332 Working sections and working places.
(a)(1) Each MMU on each working section and each area where
mechanized mining equipment is being installed or removed, shall be
ventilated by a separate split of intake air directed by overcasts,
undercasts or other permanent ventilation controls.
* * * * *
21. Amend Sec. 75.350 by revising paragraph (b)(3)(i) and (ii) to
read as follows:
Sec. 75.350 Belt air course ventilation.
* * * * *
(b) * * *
(3)(i) The average concentration of respirable dust in the belt air
course, when used as a section intake air course, shall be maintained
at or below:
(A) 1.0 mg/m\3\
(B) 0.5 mg/m\3\ as of [date 6 months after the effective date of
the final rule].
(ii) Where miners on the working section are on a reduced standard
below that specified in Sec. 75.350(b)(3)(i), the average
concentration of respirable dust in the belt entry must be at or below
the lowest applicable standard on that section.
* * * * *
22. Amend Sec. 75.362 by revising paragraphs (a)(2) and (g)(2) and
adding paragraphs (g)(3) and (g)(4) to read as follows:
Sec. 75.362 On-shift examinations.
(a) * * *
(2) A person designated by the operator shall conduct an
examination and record the results and the corrective actions taken to
assure compliance with the respirable dust control parameters specified
in the approved mine ventilation plan. In those instances when a shift
change is accomplished without an interruption in production on a
section, the examination shall be made anytime within 1 hour of the
shift change. In those instances when there is an interruption in
production during the shift change, the examination shall be made
before production begins on a section. Deficiencies in dust controls
shall be corrected before production begins or resumes. The examination
shall include: air quantities and velocities; water pressures and flow
rates; excessive leakage in the water delivery system; water spray
numbers and orientations; section ventilation and control device
placement and any other dust suppression measures; specific
measurements like roof bolter dust collector vacuum levels and scrubber
air flow rate; and work practices required by the ventilation plan.
Measurements of the air velocity and quantity, water pressure and flow
rates are not required if continuous monitoring of these controls is
used and indicates that the dust controls are functioning properly.
* * * * *
(g)(2) The certified person directing the on-shift examination to
assure compliance with the respirable dust control parameters specified
in the approved mine ventilation plan shall:
(i) Certify by initials, date, and time on a board maintained at
the section load-out or similar location showing that the examination
was made prior to resuming production; and
(ii) Verify, by initials and date, the record of the results of the
examination required under paragraph (a)(2) of this section to assure
compliance with the respirable dust control parameters specified in the
mine ventilation plan. The verification shall be made no later than the
end of the shift for which the examination was made.
(3) The mine foreman or equivalent mine official shall countersign
each examination record required under paragraph (a)(2) of this section
after it is verified by the certified person under paragraph (g)(2)(ii)
of this section, and no later than the end of the mine foreman's or
equivalent mine official's next regularly scheduled working shift. The
record shall be made in a secure book that is not susceptible to
alteration or electronically in a computer system
[[Page 64499]]
so as to be secure and not susceptible to alteration.
(4) Records shall be retained at a surface location at the mine for
at least 1 year and shall be made available for inspection by
authorized representatives of the Secretary and the representative of
miners.
23. Amend Sec. 75.371 by revising paragraphs (f), (j) and (t) to
read as follows:
Sec. 75.371 Mine ventilation plan; contents.
* * * * *
(f) Section and face ventilation systems used and the minimum
quantity of air that will be delivered to the working section for each
mechanized mining unit, including drawings illustrating how each system
is used, and a description of each different dust suppression system
used on equipment, identified by make and model, on each working
section, including:
(1) The number, types, location, orientation, operating pressure,
and flow rate of operating water sprays;
(2) The maximum distance that ventilation control devices will be
installed from each working face when mining or installing roof bolts
in entries and crosscuts;
(3) Procedures for maintaining the roof bolter dust collection
system in approved condition; and
(4) Recommended best work practices for equipment operators to
minimize dust exposure.
* * * * *
(j) The operating volume of machine mounted dust collectors or
diffuser fans, if used (see Sec. 75.325(a)(3)), including the type and
size of dust collector screen used, and a description of the procedures
to maintain dust collectors used on equipment.
* * * * *
(t) The locations where samples for ``designated areas'' will be
collected, including the specific location of each sampling device, and
the respirable dust control measures used at the dust generating
sources for these locations (see Sec. 70.209 of this chapter).
* * * * *
PART 90--MANDATORY HEALTH STANDARDS FOR COAL MINERS WHO HAVE
EVIDENCE OF THE DEVELOPMENT OF PNEUMOCONIOSIS
24. The authority citation for part 90 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h) and 957.
25. Section 90.1 is revised to read as follows:
Sec. 90.1 Scope.
This part 90 establishes the option of miners who are employed at
coal mines and who have evidence of the development of pneumoconiosis
to work in an area of a mine where the average concentration of
respirable dust in the mine atmosphere during each shift is
continuously maintained at or below the applicable standard as
specified in Sec. 90.100. The rule sets forth procedures for miners to
exercise this option, and establishes the right of miners to retain
their regular rate of pay and receive wage increases. The rule also
sets forth the operator's obligations, including respirable dust
sampling for part 90 miners. This part 90 is promulgated pursuant to
section 101 of the Act and supersedes section 203(b) of the Federal
Mine Safety and Health Act of 1977, as amended.
26. Amend Sec. 90.2 by:
a. Adding definitions for ``Approved sampling device,'' ``Coal mine
dust personal sampler unit (CMDPSU),'' ``Continuous personal dust
monitor (CPDM),'' ``Equivalent concentration,'' ``Representative
samples,'' ``Weekly accumulated exposure (WAE),'' and ``Weekly
permissible accumulated exposure (WPAE);'' and
b. Revising definitions for ``Act,'' ``Mechanized mining unit
(MMU),'' and ``Part 90 Miner.''
The additions and revisions are revised to read as follows:
Sec. 90.2 Definitions.
Act. The Federal Mine Safety and Health Act of 1977, Public Law 91-
173, as amended by Public Law 95-164 and Public Law 109-236.
* * * * *
Approved sampling device. A sampling device approved by the
Secretary and Secretary for Health and Human Services (HHS) under part
74 of this title.
* * * * *
Coal mine dust personal sampler unit (CMDPSU). A personal sampling
device approved under part 74, subpart B, of this title.
* * * * *
Continuous personal dust monitor (CPDM). A personal sampling device
approved under part 74, subpart C, of this title.
* * * * *
Equivalent concentration. The concentration of respirable coal mine
dust expressed in milligrams per cubic meter of air (mg/m\3\),
determined by dividing the weight of dust in milligrams collected on
the filter of an approved sampling device by the volume of air in cubic
meters passing through the collection filter (sampling time in minutes
times the sampling airflow rate in cubic meters per minute), and then
converting this concentration to an equivalent 8-hour exposure as
measured by the Mining Research Establishment (MRE) instrument. When
the approved sampling device is:
(1) The CMDPSU, the equivalent concentration is determined by first
multiplying the concentration of respirable coal mine dust by the MRE
conversion factor prescribed by the Secretary and then normalizing this
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling
time in minutes if longer than 8 hours.
(2) The CPDM, the device shall be programmed to directly report the
end-of-shift equivalent concentration as an MRE 8-hour equivalent
concentration.
(3) Either the CMDPSU or CPDM and the sampled work shift is less
than 8 hours, the value of t used for normalizing the MRE-equivalent
concentration to an 8-hour exposure measurement shall be 480 minutes.
Mechanized mining unit (MMU). A unit of mining equipment including
hand loading equipment used for the production of material; or a
specialized unit which uses mining equipment other than specified in
Sec. 70.207(b) of this chapter. Each MMU is assigned a four-digit
identification number by MSHA, which is retained by the MMU. However,
when:
(1) Two sets of mining equipment are used in a series of working
places within the same working section and only one production crew is
employed, the two sets of equipment are identified as a single MMU.
(2) Two or more sets of mining equipment are used in a series of
working places within the same working section and two or more
production crews are employed, each set of mining equipment shall be
identified as a separate MMU.
* * * * *
Part 90 miner. A miner employed at a coal mine who has exercised
the option under the old section 203(b) program, or under Sec. 90.3 of
this part to work in an area of a mine where the average concentration
of respirable dust in the mine atmosphere during each shift to which
that miner is exposed is continuously maintained at or below the
applicable standard, and who has not waived these rights.
Quartz. Crystalline silicon dioxide (SiO2) as measured
by:
(1) MSHA Analytical Method P-7: Infrared Determination of Quartz in
Respirable Coal Mine Dust; or
[[Page 64500]]
(2) Any method approved by MSHA as providing a measurement of
quartz equivalent to that obtained by MSHA Analytical Method P-7.
Representative samples. Respirable dust samples that reflect
typical dust concentration levels in the working environment of the
part 90 miner when performing normal work duties.
* * * * *
Weekly accumulated exposure (WAE). The total amount of exposure to
respirable coal mine dust, expressed in mg-hr/m\3\, accumulated by a
part 90 miner when performing normal work duties during a work week
(Sunday through Saturday), determined by multiplying the daily
individual end-of-shift equivalent concentration measurements by 8
hours, which yields the total amount of exposure accumulated over the
course of the particular shift sampled, and then adding together all of
the daily accumulated exposures.
Weekly permissible accumulated exposure (WPAE). The maximum amount
of accumulated exposure to respirable coal mine dust, expressed in mg-
hr/m\3\, permitted to be received by a part 90 miner when performing
normal work duties during a 40-hour work week (Sunday through
Saturday), determined by multiplying the applicable standard by 40
hours.
27. Section 90.3 is revised to read as follows:
Sec. 90.3 Part 90 option; notice of eligibility; exercise of option.
(a) Any miner employed at a coal mine who, in the judgment of the
Secretary of HHS, has evidence of the development of pneumoconiosis
based on a chest X-ray, read and classified in the manner prescribed by
the Secretary of HHS, or based on other medical examinations shall be
afforded the option to work in an area of a mine where the average
concentration of respirable dust in the mine atmosphere during each
shift to which that miner is exposed is continuously maintained at or
below the applicable standard. Each of these miners shall be notified
in writing of eligibility to exercise the option.
(b) Any miner who is a section 203(b) miner on January 31, 1981,
shall be a part 90 miner on February 1, 1981, entitled to full rights
under this part to retention of pay rate, future actual wage increases,
and future work assignment, shift and respirable dust protection.
(c) Any part 90 miner who is transferred to a position at the same
or another coal mine shall remain a part 90 miner entitled to full
rights under this part at the new work assignment.
(d) The option to work in a low dust area of the mine may be
exercised for the first time by any miner employed at a coal mine who
was eligible for the option under the old section 203(b) program, or is
eligible for the option under this part by signing and dating the
Exercise of Option Form and mailing the form to the Chief, Division of
Health, Coal Mine Safety and Health, MSHA, 1100 Wilson Boulevard,
Arlington, Virginia 22209.
(e) The option to work in a low dust area of the mine may be re-
exercised by any miner employed at a coal mine who exercised the option
under the old section 203(b) program, or exercised the option under
this part by sending a written request to the Chief, Division of
Health, Coal Mine Safety and Health, MSHA, 1100 Wilson Boulevard,
Arlington, Virginia 22209. The request should include the name and
address of the mine and operator where the miner is employed.
(f) No operator shall require from a miner a copy of the medical
information received from the Secretary or Secretary of HHS.
28. Subpart B is revised to read as follows:
Subpart B--Dust Standards, Rights of Part 90 Miners
Sec.
90.100 Respirable dust standard.
90.101 Respirable dust standard when quartz is present.
90.102 Transfer; notice.
90.103 Compensation.
90.104 Waiver of rights; re-exercise of option.
Sec. 90.100 Respirable dust standard.
After the 20th calendar day following receipt of notification from
MSHA that a part 90 miner is employed at the mine, the operator shall
continuously maintain the average concentration of respirable dust in
the mine atmosphere during each shift to which the part 90 miner in the
active workings of the mine is exposed, as measured with an approved
sampling device and in terms of an equivalent concentration, at or
below:
(a) 1.0 milligrams of respirable dust per cubic meter of air (mg/
m\3\).
(b) 0.5 mg/m\3\ as of [date 6 months after the effective date of
the final rule].
Sec. 90.101 Respirable dust standard when quartz is present.
(a) Each operator shall continuously maintain the average
concentration of respirable quartz dust in the mine atmosphere during
each shift to which a part 90 miner in the active workings of each mine
is exposed at or below 0.1 mg/m\3\ (100 micrograms per cubic meter or
[micro]g/m\3\) as measured with an approved sampling device and in
terms of an equivalent concentration.
(b) When the mine atmosphere of the active workings where the part
90 miner performs his or her normal work duties exceeds 100 [micro]g/
m\3\ of respirable quartz dust, the operator shall continuously
maintain the average concentration of respirable dust in the mine
atmosphere during each shift to which a part 90 miner is exposed as
measured with an approved sampling device and in terms of an equivalent
concentration at or below the applicable standard. The applicable
standard is computed by dividing the percent of quartz into the number
10. The application of this formula shall not result in an applicable
standard that exceeds the standards specified in 90.100.
Example: Assume the part 90 miner is on a 0.5-mg/m\3\ dust
standard. Suppose a valid respirable dust sample with an equivalent
concentration of 0.5 mg/m\3\ contains 25.6% of quartz dust, which
corresponds to a quartz concentration of 128 [mu]g/m\3\. Therefore,
the average concentration of respirable dust in the mine atmosphere
associated with that part 90 miner shall be maintained on each shift
at or below 0.4 mg/m\3\ (10/25.6% = 0.4 mg/m\3\).
Sec. 90.102 Transfer; notice.
(a) Whenever a part 90 miner is transferred in order to meet the
applicable standard, the operator shall transfer the miner to an
existing position at the same coal mine on the same shift or shift
rotation on which the miner was employed immediately before the
transfer. The operator may transfer a part 90 miner to a different coal
mine, a newly-created position or a position on a different shift or
shift rotation if the miner agrees in writing to the transfer. The
requirements of this paragraph do not apply when the respirable dust
concentration in a part 90 miner's work position complies with the
applicable standard but circumstances, such as reductions in workforce
or changes in operational status, require a change in the miner's job
or shift assignment.
(b) On or before the 20th calendar day following receipt of
notification from MSHA that a part 90 miner is employed at the mine,
the operator shall give the District Manager written notice of the
occupation and, if applicable, the MMU unit to which the part 90 miner
shall be assigned on the 21st calendar day following receipt of the
notification from MSHA.
(c) After the 20th calendar day following receipt of notification
from MSHA that a part 90 miner is employed at the mine, the operator
shall give the
[[Page 64501]]
District Manager written notice before any transfer of a part 90 miner.
This notice shall include the scheduled date of the transfer.
Sec. 90.103 Compensation.
(a) The operator shall compensate each part 90 miner at not less
than the regular rate of pay received by that miner immediately before
exercising the option under Sec. 90.3.
(b) Whenever a part 90 miner is transferred, the operator shall
compensate the miner at not less than the regular rate of pay received
by that miner immediately before the transfer.
(c) Once a miner has been placed in a position in compliance with
the provisions of part 90, paragraphs (a) and (b) of this section do
not apply when the part 90 miner initiates and accepts a change in work
assignment for reasons of job preference.
(d) The operator shall compensate each miner who is a section
203(b) miner on January 31, 1981, at not less than the regular rate of
pay that the miner is required to receive under section 203(b) of the
Act immediately before the effective date of this part.
(e) In addition to the compensation required to be paid under
paragraphs (a), (b) and (d) of this section, the operator shall pay
each part 90 miner the actual wage increases that accrue to the
classification to which the miner is assigned.
(f) If a miner is temporarily employed in an occupation other than
his or her regular work classification for two months or more before
exercising the option under Sec. 90.3, the miner's regular rate of pay
for purposes of paragraph (a) and (b) of this section is the higher of
the temporary or regular rates of pay. If the temporary assignment is
for less than two months, the operator may pay the part 90 miner at his
or her regular work classification rate regardless of the temporary
wage rate.
(g) If a part 90 miner is transferred, and the Secretary
subsequently notifies the miner that notice of the miner's eligibility
to exercise the part 90 option was incorrect, the operator shall retain
the affected miner in the current position to which the miner is
assigned and continue to pay the affected miner the applicable rate of
pay provided in paragraphs (a), (b), (d) and (e) of this section,
until:
(1) The affected miner and operator agree in writing to a position
with pay at not less than the regular rate of pay for that occupation;
or
(2) A position is available at the same coal mine in both the same
occupation and on the same shift on which the miner was employed
immediately before exercising the option under Sec. 90.3 or under the
old section 203(b) program.
(i) When such a position is available, the operator shall offer the
available position in writing to the affected miner with pay at not
less than the regular rate of pay for that occupation.
(ii) If the affected miner accepts the available position in
writing, the operator shall implement the miner's reassignment upon
notice of the miner's acceptance. If the miner does not accept the
available position in writing, the miner may be reassigned and
protections under part 90 shall not apply. Failure by the miner to act
on the written offer of the available position within 15 days after
notice of the offer is received from the operator shall operate as an
election not to accept the available position.
Sec. 90.104 Waiver of rights; re-exercise of option.
(a) A part 90 miner may waive his or her rights and be removed from
MSHA's active list of miners who have rights under part 90 by:
(1) Giving written notification to the Chief, Division of Health,
Coal Mine Safety and Health, MSHA, that the miner waives all rights
under this part;
(2) Applying for and accepting a position in an area of a mine
which the miner knows has an average respirable dust concentration
exceeding the applicable standard; or
(3) Refusing to accept another position offered by the operator at
the same coal mine that meets the requirements of Sec. Sec. 90.100,
90.101 and 90.102(a) after dust sampling shows that the present
position exceeds the applicable standard.
(b) If rights under part 90 are waived, the miner gives up all
rights under part 90 until the miner re-exercises the option in
accordance with Sec. 90.3(e) (Part 90 option; notice of eligibility;
exercise of option).
(c) If rights under part 90 are waived, the miner may re-exercise
the option under this part in accordance with Sec. 90.3(e) (Part 90
option; notice of eligibility; exercise of option) at any time.
29. Subpart C is revised to read as follows:
Subpart C--Sampling Procedures
Sec.
90.201 Sampling; general and technical requirements.
90.202 Certified person; sampling.
90.203 Certified person; maintenance and calibration.
90.204 Approved sampling devices; maintenance and calibration.
90.205 Approved sampling devices; operation; air flowrate.
90.206 CPDM Performance Plan.
90.207 Exercise of option or transfer sampling.
90.208 Compliance sampling; procedures for sampling with CMDPSUs.
90.209 Compliance sampling; procedures for sampling with CPDMs.
90.210 Respirable dust samples: transmission by operator.
90.211 Respirable dust samples; report to operator.
90.212 Status change reports.
Sec. 90.201 Sampling; general and technical requirements.
(a) CMDPSUs shall be used to take samples of the concentration of
respirable coal mine dust in the working environment of each part 90
miner as required by this part until replaced by CPDMs. After [date 12
months after the effective date of the final rule], only approved CPDMs
shall be used to sample part 90 miners unless notified by the
Secretary.
(b) If using CMDPSUs, the sampling device shall be worn or carried
to and from each part 90 miner. If using CPDMs, the sampling device
shall be worn by the part 90 miner at all times. Approved sampling
devices shall be operated portal to portal and shall be operational
during the part 90 miner's entire shift, which includes the time spent
performing normal work duties and while travelling to and from the
assigned work location. If the work shift to be sampled is longer than
12 hours and the sampling device is:
(1) A CMDPSU, the operator shall switch-out the unit's sampling
pump prior to the 13th-hour of operation.
(2) A CPDM, the operator shall switch-out the CPDM with a fully
charged device prior to the 13th-hour of operation.
(c) Unless otherwise directed by the District Manager, the
respirable dust samples required under this part using a CMDPSU shall
be taken by placing the sampling device as follows:
(1) On the part 90 miner;
(2) On the piece of equipment which the part 90 miner operates
within 36 inches of the normal working position; or
(3) At a location that represents the maximum concentration of dust
to which the part 90 miner is exposed.
(d) If using a CMDPSU, one control filter shall be used for each
shift of sampling. Each control filter shall:
(1) Have the same pre-weight date (noted on the dust data card) as
the filter used for sampling;
(2) Remain plugged at all times;
(3) Be exposed to the same time, temperature, and handling
conditions as the filter used for sampling; and
[[Page 64502]]
(4) Be kept with the exposed samples after sampling.
(e) The respirable dust samples required by this part and taken
with a CMDPSU shall be collected while the part 90 miner is performing
normal work duties.
(f) Records showing the length of each shift for each part 90 miner
shall be made and retained for at least six months, and shall be made
available for inspection by authorized representatives of the Secretary
and submitted to the District Manager when requested in writing.
(g) Upon request from the District Manager, the operator shall
submit the date and time any respirable dust sampling required by this
part will begin. This information shall be submitted at least 48 hours
prior to scheduled sampling.
(h) Operators using CPDMs shall provide training to all part 90
miners. The training shall be completed prior to a part 90 miner being
required to wear the CPDM and then every 12 months thereafter. The
training shall include:
(1) Explaining the basic features and capabilities of the CPDM;
(2) How to set-up the CPDM for compliance sampling;
(3) A discussion of the various types of information displayed by
the CPDM and how to access that information;
(4) How to start and stop a short-term sample run during compliance
sampling; and
(5) The importance of continuously monitoring dust concentrations
and properly wearing the CPDM.
(i) An operator shall keep a record of the CPDM training at the
mine site for two years after completion of the training. An operator
may keep the record elsewhere if the record is immediately accessible
from the mine site by electronic transmission. Upon request from an
authorized representative of the Secretary or Secretary of HHS, the
operator shall promptly provide access to any such training records.
Sec. 90.202 Certified person; sampling.
(a) The respirable dust sampling required by this part shall be
performed by a certified person.
(b) To be certified, a person shall complete the applicable MSHA
course of instruction and pass the MSHA examination demonstrating
competency in sampling procedures. Persons not certified in sampling
and those certified only in maintenance and calibration procedures in
accordance with Sec. 90.203(b) are not permitted to collect respirable
dust samples required by this part or handle approved sampling devices
when being used in sampling.
(c) To maintain certification, a person must pass the MSHA
examination demonstrating competency in sampling procedures every three
years.
(d) MSHA may revoke a person's certification for failing to pass
the MSHA examination or to properly carry out the required sampling
procedures.
Sec. 90.203 Certified person; maintenance and calibration.
(a) Approved sampling devices shall be maintained and calibrated by
a certified person.
(b) To be certified, a person shall complete the applicable MSHA
course of instruction and pass the MSHA examination demonstrating
competency in maintenance and calibration procedures for approved
sampling devices. If using a CMDPSU, necessary maintenance of the
sampling head assembly can be performed by persons certified in
sampling or in maintenance and calibration.
(c) To maintain certification, a person must pass the MSHA
examination demonstrating competency in maintenance and calibration
procedures every three years.
(d) MSHA may revoke a person's certification for failing to pass
the MSHA examination or to properly carry out the required maintenance
and calibration procedures.
Sec. 90.204 Approved sampling devices; maintenance and calibration.
(a) Approved sampling devices shall be maintained as approved under
part 74 of this title and calibrated in accordance with MSHA
Informational Report IR 1240 (1996) ``Calibration and Maintenance
Procedures for Coal Mine Respirable Dust Samplers'' or in accordance
with the manufacturer's recommendations if using a CPDM. Only persons
certified in maintenance and calibration can perform maintenance on the
pump unit of approved sampling devices.
(b) Approved sampling devices shall be calibrated at the flowrate
of 2.0 liters of air per minute (L/min), or at a different flowrate
recommended by the manufacturer or prescribed by the Secretary or
Secretary of HHS for the particular device, before they are put into
service and, thereafter, at time intervals recommended by the
manufacturer or prescribed by the Secretary or Secretary of HHS.
(c) If using a CMDPSU, sampling devices shall be examined and
tested by a person certified in sampling or in maintenance and
calibration within 3 hours before the start of the shift on which the
approved sampling devices will be used to collect respirable dust
samples. This is to assure that the sampling devices are clean and in
proper working condition. This examination and testing shall include
the following:
(1) Examination of all components of the cyclone assembly to assure
that they are clean and free of dust and dirt. This includes examining
the interior of the connector barrel (located between the cassette
assembly and vortex finder), vortex finder, cyclone body and grit pot;
(2) Examination of the inner surface of the cyclone body to assure
that it is free of scoring or scratch marks on the inner surface of the
cyclone where the air flow is directed by the vortex finder into the
cyclone body;
(3) Examination of the external hose connecting the pump unit to
the sampling head assembly to assure that it is clean and free of
leaks; and
(4) Examination of the clamping and positioning of the cyclone
body, vortex finder and cassette to assure that they are rigid, in
alignment, firmly in contact and airtight.
(5) Testing the voltage of each battery while under actual load to
assure the battery is fully charged. This requires that a fully
assembled and examined sampling head assembly be attached to the pump
inlet with the pump unit running when the voltage check is made. The
voltage for nickel cadmium cell batteries shall not be lower than the
product of the number of cells in the battery multiplied by 1.25. The
voltage for other than nickel cadmium cell batteries shall not be lower
than the product of the number of cells in the battery multiplied by
the manufacturer's nominal voltage per cell value.
(d) If using a CPDM, the certified person in sampling or in
maintenance and calibration shall follow the examination, testing and
set-up procedures contained in the approved CPDM Performance Plan.
(e) MSHA Informational Report IR 1240 (1996) referenced in
paragraph (a) of this section is incorporated-by-reference. This
incorporation-by-reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected or obtained at MSHA, Coal Mine Safety and Health, 1100
Wilson Blvd., Room 2424, Arlington, Virginia 22209-3939 and at each
MSHA Coal Mine Safety and Health district office. Copies may be
inspected at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/
[[Page 64503]]
federal--register/code--of--federal--regulations/ibr--locations.html.
Sec. 90.205 Approved sampling devices; operation; air flowrate.
(a) Approved sampling devices shall be operated at the flowrate of
2.0 L/min, or at a different flowrate recommended by the manufacturer
or prescribed by the Secretary or Secretary of HHS.
(b) Except as provided in paragraph (c) of this section, each
approved sampling device shall be examined each shift by a person
certified in sampling during:
(1) The second hour after being put into operation to assure it is
in the proper location, operating properly and at the proper flowrate.
If the proper flowrate is not maintained, necessary adjustments shall
be made by the certified person. This examination is not required if
the sampling device is being operated in a breast or chamber of an
anthracite coal mine where the full box mining method is used.
(2) The last hour of operation to assure that the sampling device
is operating properly and at the proper flowrate. If the proper
flowrate is not maintained, the respirable dust sample shall be
transmitted to MSHA with a notation by the certified person on the
back-side of the dust data card stating that the proper flowrate was
not maintained. Other events occurring during the collection of
respirable dust samples that may affect the validity of the sample,
such as dropping of the sampling head assembly onto the mine floor,
shall be noted on the back-side of the dust data card.
(c) If using a CPDM, the certified person shall examine the
sampling device during the shift in accordance with the procedures
contained in the approved CPDM Performance Plan to assure sampling
devices are operating properly.
Sec. 90.206 CPDM Performance Plan.
(a) If using a CPDM, the operator shall have a CPDM Performance
Plan approved by the District Manager to ensure that no part 90 miner
is exposed to concentrations of respirable coal mine dust in excess of
the applicable standard when performing normal work duties. An operator
shall not implement a proposed CPDM Performance Plan until approved by
the District Manager.
(b) The proposed CPDM Performance Plan and any proposed revision to
the plan shall be submitted in writing to the District Manager, and
shall be reviewed and approved in accordance with Sec. Sec. 90.300 and
90.301 of this chapter.
(c) The approved CPDM Performance Plan shall include the names or
titles of the responsible mine officials designated by the operator and
the following information:
(1) The specific part 90 miner who will be sampled, identified by
the miner's unique 8-digit MSHA Individual Identification Number
(MIIN).
(2) The pre-operational examinations, testing and set-up procedures
to verify the operational readiness of the sampling device before each
sampling shift;
(3) Procedures that address downloading of end-of-shift sampling
information, and validation and certification of reported results;
(4) Procedures for weekly transmittals of certified sampling data
files electronically to MSHA;
(5) The routine daily and other required scheduled maintenance
procedures;
(6) Procedures or methods for verifying the calibration of each
CPDM; and
(7) The frequency with which dust concentrations being reported by
the CPDM shall be monitored by the designated mine official during the
shift;
(8) The types of actions permitted to be taken during the shift to
ensure the environment of the occupation being sampled remains in
compliance at the end of the shift.
(9) Any other information required by the District Manager.
(d) A copy of the approved CPDM Performance Plan and any revisions
pertaining to a part 90 miner shall be provided to the affected part 90
miner. The operator shall not post a copy of the plan or any revisions
on the mine bulletin board.
(e) The District Manager may require an approved CPDM Performance
Plan to be revised if the District Manager determines that the plan is
inadequate to protect the part 90 miner from exposure to concentrations
of respirable dust in excess of the applicable standard.
Sec. 90.207 Exercise of option or transfer sampling.
(a) The operator shall take five valid respirable dust samples for
each part 90 miner within 15 calendar days after:
(1) The 20-day period specified for each part 90 miner in Sec.
90.100;
(2) Receipt of notification from MSHA that any respirable dust
sample taken in accordance with Sec. 90.208 exceeds the applicable
standard.
(3) Implementing any transfer after the 20th calendar day following
receipt of notification from MSHA that a part 90 miner is employed at
the mine.
Sec. 90.208 Compliance sampling; procedures for sampling with
CMDPSUs.
(a) Each operator shall take five valid representative samples
every calendar quarter from the environment of the part 90 miner while
performing normal work duties. Part 90 miner samples shall be collected
on consecutive work days. The quarterly periods are:
January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31
(b) When the respirable dust standard is changed in accordance with
Sec. 90.101, the new applicable standard shall become effective on the
first shift on which the part 90 miner is performing normal work duties
following receipt of notification of such change from MSHA.
(1) If all samples from the most recent quarterly sampling period
do not exceed the new applicable standard, respirable dust sampling of
the part 90 miner shall begin on the first shift on which the miner is
performing normal work duties during the next quarterly period
following notification of such change.
(2) If any sample from the most recent quarterly sampling period
exceeds the new applicable standard, the operator shall make necessary
adjustments to the dust control parameters within three days and then
collect samples from the affected part 90 miner on consecutive work
days until five valid representative samples are collected. The samples
collected will be treated as normal quarterly samples under this part.
(c) No valid single-shift equivalent concentration shall meet or
exceed the excessive concentration value (ECV) that corresponds to the
applicable standard in Table 90-1.
(d) Upon issuance of a citation for a violation of the applicable
standard, paragraphs (a) and (b)(2) of this section shall not apply to
that part 90 miner until the violation is abated in accordance with
paragraph (e) of this section.
(e) During the time for abatement fixed in a citation for violation
of the applicable standard, the operator shall take the following
actions:
(1) Make approved respiratory equipment available to the affected
part 90 miner in accordance with Sec. 72.700 of this chapter;
(2) Submit to the District Manager for approval proposed corrective
actions to lower the concentration of respirable dust to within the
applicable standard. If the corrective action involves:
(i) Reducing the respirable dust levels in the work environment of
the part 90
[[Page 64504]]
miner identified in the citation, the operator shall implement the
proposed corrective actions following receipt of approval by the
District Manager and then sample the affected miner until five valid
representative samples are taken.
(ii) Transferring the part 90 miner to another work position at the
mine to meet the applicable standard, the operator shall comply with
Sec. 90.102 and then sample the affected miner in accordance with
Sec. 90.207(a).
(f) A citation for violation of the applicable standard shall be
terminated by MSHA when the equivalent concentration of each of the
five valid operator abatement samples is at or below the applicable
standard and, within 15 calendar days after receipt of sampling results
from MSHA indicating the concentration has been reduced to or below the
applicable standard, the operator has submitted to the District Manager
for approval a proposed dust control plan for that part 90 miner or
proposed changes to the approved dust control plan as prescribed in
Sec. 90.300. The revised parameters shall reflect the control measures
used to maintain the concentration of respirable dust to or below the
applicable standard.
(g) When the equivalent concentration of one or more valid samples
collected by the operator under this section exceeds the applicable
standard but is less than the applicable ECV in Table 90-1, the
operator shall:
(1) Make approved respiratory equipment available to the affected
part 90 miner in accordance with Sec. 72.700 of this chapter;
(2) Take corrective action to lower the concentration of respirable
dust to or below the applicable standard.
(3) Record the corrective actions taken in the same manner as the
records for hazardous conditions required by Sec. 75.363 of this
chapter.
Table 90-1--Excessive Concentration Values (ECV) Based on Single-Shift
CMDPSU Equivalent Concentration Measurements
------------------------------------------------------------------------
ECV (mg/
Applicable standard (mg/m\3\) m\3\)
------------------------------------------------------------------------
1.0.......................................................... 1.26
0.9.......................................................... 1.16
0.8.......................................................... 1.05
0.7.......................................................... 0.95
0.6.......................................................... 0.85
0.5.......................................................... 0.74
0.4.......................................................... 0.65
0.3.......................................................... 0.54
0.2.......................................................... 0.44
------------------------------------------------------------------------
Sec. 90.209 Compliance sampling; procedures for sampling with CPDMs.
(a) Each operator shall sample the working environment of the part
90 miner during each shift, seven days per week (Sunday through
Saturday), if applicable, 52 weeks per year.
(b) When the respirable dust standard is changed in accordance with
Sec. 90.101, the new applicable standard shall become effective on the
first shift on which the part 90 miner is performing normal work duties
following receipt of notification of such change from MSHA.
(c) No valid end-of-shift equivalent concentration shall meet or
exceed the excessive concentration value (ECV) that corresponds to the
applicable standard in Table 90-2.
(d) No weekly accumulated exposure shall exceed the weekly
permissible accumulated exposure.
(e) When a valid end-of-shift equivalent concentration meets or
exceeds the applicable ECV or a weekly accumulated exposure exceeds the
weekly permissible accumulated exposure, the operator shall take the
following actions before the part 90 miner's next work shift:
(1) Make approved respiratory equipment available to affected part
90 miners in accordance with Sec. 72.700 of this chapter;
(2) Implement corrective actions to assure compliance with the
applicable standard on the next and other subsequent work shifts;
(3) If the corrective actions implemented to lower the
concentration of respirable dust to within the applicable standard
involve implementation of dust control measures, the operator shall
submit to the District Manager for approval, within 3 days of
determining that the applicable standard has been exceeded, the
corrective actions as a proposed dust control plan for the part 90
miner or proposed changes to the approved part 90 dust control plan as
prescribed in Sec. 90.300;
(4) Review the adequacy of the approved CPDM Performance Plan
applicable to the part 90 miner. The operator shall submit any plan
revisions to the District Manager for approval within 7 calendar days
after the operator provides the end-of-shift equivalent concentration
or the weekly accumulated exposure to the affected part 90 miner; and
(5) Record the reported excessive dust condition as part of and in
the same manner as the records for hazardous conditions required by
Sec. 75.363 of this chapter. The record shall include:
(i) Dates of sampling;
(ii) Lengths of sampled shifts;
(iii) Locations within the mine and the occupation where samples
were collected;
(iv) The end-of-shift equivalent concentration or weekly
accumulated exposure and the weekly permissible accumulated exposure;
and
(v) Corrective actions taken to reduce the concentration of
respirable coal mine dust to or below the applicable standard.
(6) If the corrective action involves transferring the part 90
miner to another position at the mine to meet the applicable standard,
the operator shall comply with Sec. 90.102(c) and then sample the
affected miner in accordance with Sec. 90.207(a).
(f) When any valid end-of-shift equivalent concentration exceeds
the applicable standard but is less than the applicable ECV in Table
90-2, the operator shall take the following actions:
(1) Make approved respiratory equipment available to affected part
90 miners in accordance with Sec. 72.700 of this chapter;
(2) Implement corrective actions to assure compliance with the
applicable standard on the next and other subsequent work shifts; and
(3) Record the reported excessive dust condition as part of and in
the same manner as the records for hazardous conditions required by
Sec. 75.363 of this chapter. The record shall include:
(i) Date of sampling;
(ii) Length of the sampled shift;
(iii) Location within the mine and the occupation where the sample
was collected;
(iv) The end-of-shift equivalent concentration; and
(v) Corrective action taken to reduce the concentration of
respirable coal mine dust to or below the applicable standard; and
(4) Review the adequacy of the approved CPDM Performance Plan
applicable to part 90 miners. The operator shall submit any plan
revisions to the District Manager for approval within 7 calendar days
after the operator provides the end-of-shift equivalent concentration
to the affected part 90 miner.
Table 90-2--Excessive Concentration Values (ECV) Based on Single-Shift
CPDM Equivalent Concentration Measurements
------------------------------------------------------------------------
ECV (mg/
Applicable standard (mg/m\3\) m\3\)
------------------------------------------------------------------------
1.0.......................................................... 1.13
0.9.......................................................... 1.02
0.8.......................................................... 0.91
[[Page 64505]]
0.7.......................................................... 0.80
0.6.......................................................... 0.68
0.5.......................................................... 0.57
0.4.......................................................... 0.46
0.3.......................................................... 0.34
0.2.......................................................... 0.23
------------------------------------------------------------------------
Sec. 90.210 Respirable dust samples; transmission by operator.
(a) If using a CMDPSU, the operator shall transmit within 24 hours
after the end of the sampling shift all samples collected to fulfill
the requirements of this part in containers provided by the
manufacturer of the filter cassette to: Respirable Dust Processing
Laboratory, Pittsburgh Safety and Health Technology Center, Cochrans
Mill Road, Building 38, P.O. Box 18179, Pittsburgh, Pennsylvania 15236-
0179, or to any other address designated by the District Manager.
(b) The operator shall not open or tamper with the seal of any
filter cassette or alter the weight of any filter cassette before or
after it is used to fulfill the requirements of this part.
(c) A person certified in sampling shall properly complete the dust
data card that is provided by the manufacturer for each filter
cassette. The card shall have an identification number identical to
that on the cassette used to take the sample and be submitted to MSHA
with the sample. Each card shall be signed by the certified person who
actually performed the required examinations during the sampling shift
and shall include that person's MSHA Individual Identification Number
(MIIN). Respirable dust samples with data cards not properly completed
shall be voided by MSHA.
(d) All respirable dust samples collected by the operator shall be
considered taken to fulfill the sampling requirements of part 70, 71 or
90 of this title, unless the sample has been identified in writing by
the operator to the District Manager, prior to the intended sampling
shift, as a sample to be used for purposes other than required by part
70, 71 or 90 of this title.
(e) Respirable dust samples received by MSHA in excess of those
required by this part shall be considered invalid samples.
(f) If using a CPDM, the designated mine official shall validate,
certify and transmit electronically to MSHA within 12 hours after the
end of the last sampling shift of the work week all daily sample and
error data file information collected during the previous calendar week
(Sunday through Saturday) and stored in the CPDM. All CPDM data files
transmitted to MSHA shall be maintained by the operator for at least 12
months.
Sec. 90.211 Respirable dust samples; report to operator.
(a) MSHA shall provide the operator a report with the following
data on respirable dust samples submitted in accordance with this part:
(1) The mine identification number;
(2) The locations within the mine from which the samples were
taken;
(3) The concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for each
valid sample;
(4) The average concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for all
valid samples;
(5) The occupation code;
(6) The reason for voiding any sample; and
(7) The part 90 miner's MSHA Individual Identification Number
(MIIN).
(b) Upon receipt, the operator shall provide a copy of this report
to the part 90 miner. The operator shall not post the original or a
copy of this report on the mine bulletin board.
(c) If using a CPDM, the designated mine official shall validate,
certify and provide to each part 90 miner:
(1) Within the first hour of the part 90 miner's next work shift,
the daily end-of-shift sampling results applicable to that part 90
miner. The daily report shall include:
(i) The mine identification number;
(ii) The location within the mine from which the samples were
taken;
(iii) The concentration of respirable dust, expressed as an
equivalent concentration in milligrams per cubic meter of air, for each
valid sample;
(iv) The total amount of exposure accumulated by the part 90 miner;
(v) The occupation code;
(vi) The reason for voiding any sample;
(vii) The part 90 miner's MSHA Individual Identification Number
(MIIN).
(viii) The shift length; and
(ix) Any other information required by the District Manager.
(2) Within 1 hour after the start of the part 90 miner's next work
shift of a new work week (Sunday through Saturday), the weekly
accumulated exposure and the weekly permissible accumulated exposure
applicable to that part 90 miner.
(d) The operator shall not post data on respirable dust samples for
part 90 miners on the mine bulletin board.
Sec. 90.212 Status change reports.
(a) If there is a change in the status of a part 90 miner (such as
entering a terminated, injured or ill status, or returning to work),
the operator shall report the change in the status of the part 90 miner
to the MSHA District Office or to any other MSHA office designated by
the District Manager. Status changes shall be reported in writing or by
electronic means within 3 working days after the status change has
occurred.
(b) Status changes affecting the operational readiness of any CPDM
shall be reported by the designated mine official to the MSHA District
Office or to any other MSHA office designated by the District Manager
within 24 hours after the status change has occurred. Status changes
shall be reported in writing or electronically.
30. Subpart D is revised to read as follows:
Subpart D--Respirable Dust Control Plans
Sec.
90.300 Respirable dust control plan; filing requirements.
90.301 Respirable dust control plan; approval by District Manager;
copy to part 90 miner.
Sec. 90.300 Respirable dust control plan; filing requirements.
(a) As required by Sec. 90.208(f) and Sec. 90.209(e)(3), the
operator shall submit to the District Manager for approval a written
respirable dust control plan for the part 90 miner in the position
identified in the citation. The respirable dust control plan and
revisions thereof shall be suitable to the conditions and the mining
system of the coal mine and shall be adequate to continuously maintain
respirable dust within the applicable standard for that part 90 miner.
(b) Each respirable dust control plan shall include at least the
following:
(1) The mine identification number assigned by MSHA, the operator's
name, mine name, mine address, and mine telephone number and the name,
address and telephone number of the principal officer in charge of
health and safety at the mine;
(2) The name and MSHA Individual Identification Number of the part
90 miner and the position at the mine to which the plan applies;
[[Page 64506]]
(3) A detailed description of the specific respirable dust control
measures used to continuously maintain concentrations of respirable
coal mine dust at or below the applicable standard; and
(4) A detailed description of how each of the respirable dust
control measures described in response to paragraph (b)(3) of this
section will continue to be used by the operator, including at least
the specific time, place and manner the control measures will be used.
Sec. 90.301 Respirable dust control plan; approval by District
Manager; copy to part 90 miner.
(a) The District Manager will approve respirable dust control plans
on a mine-by-mine basis. When approving respirable dust control plans,
the District Manager shall consider whether:
(1) The respirable dust control measures would be likely to
maintain concentrations of respirable coal mine dust at or below the
applicable standard; and
(2) The operator's compliance with all provisions of the respirable
dust control plan could be objectively ascertained by MSHA.
(b) MSHA may take respirable dust samples to determine whether the
respirable dust control measures in the operator's plan effectively
maintain concentrations of respirable coal mine dust at or below the
applicable standard.
(c) The operator shall comply with all provisions of each
respirable dust control plan upon notice from MSHA that the respirable
dust control plan is approved.
(d) The operator shall provide a copy of the current respirable
dust control plan required under this part to the part 90 miner. The
operator shall not post the original or a copy of the plan on the mine
bulletin board.
(e) The operator may review respirable dust control plans and
submit proposed revisions to such plans to the District Manager for
approval.
[FR Doc. 2010-25249 Filed 10-14-10; 8:45 am]
BILLING CODE 4510-43-P