Lowering Miners' Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors, 64412-64506 [2010-25249]
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
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
Mine Safety and Health
Administration, Labor.
ACTION: Proposed rule.
AGENCY:
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:
https://www.regulations.gov. Follow the
instructions for submitting comments.
(2) Electronic mail: zzMSHAcomments@dol.gov. 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
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SUMMARY:
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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 zzMSHAComments@dol.gov, 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
Silvey.Patricia@dol.gov (Internet Email), (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 https://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 https://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
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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
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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 nonmalignant respiratory disease (NMRD).
For instance, at underground mines, the
QRA projects over a 45-year
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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
§ 90.100, ‘‘part 90 miners’’). There is no
separate standard for respirable silica;
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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 §§ 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 § 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.
§ 842(f)).
Section 202(f) of the Mine Act is taken
essentially verbatim from § 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 § 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 § 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
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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 § 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 (§ 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
(§§ 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 (§ 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
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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 § 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 https://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
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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 https://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
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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
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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 precommercial 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
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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
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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.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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
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the DA would be identified by a fourdigit identification number assigned by
MSHA. The proposal would be
consistent with the existing practice of
identifying DAs and would incorporate
language from existing § 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/m3), 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 MREequivalent 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 endof-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 § 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
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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/m3
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 MREequivalent 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 m3/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 § 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:
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⎛ accumulated dust ( mg ) ⎞ t
Equivalent concentration mg/m3 = 1.38 × ⎜
⎟×
t × airflow rate
⎝
⎠ 480
(
)
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/m3 (8 hours × 2.0
mg/m3) as measured by the MRE
instrument. The proposed definition of
equivalent concentration would
continue this same 16 mg-hr/m3 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/m3 or over 9 hours at an
where airflow rate = 0.002 m3/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/m3 [1.38 MRE
conversion factor × 1.5 mg/(540 min ×
0.002 m3/min)]. Under the proposed
definition, this quantity would be
multiplied by 540/480, yielding an
equivalent concentration of 2.16 mg/m3.
This adjustment allows MSHA to
compare the full-shift measurement to
the applicable respirable dust standard.
1.38 ×
0.08mg
average of 1.92 mg/m3. In either case,
the MRE equivalent exposure
measurement for the sampled shift is
17.3 mg-hr/m3, which exceeds the 2.0
mg/m3 standard for an 8-hour shift (i.e.,
16 mg-hr/m3).
Using an approved gravimetric
sampler, the standard for respirable
quartz dust (i.e., 0.1 mg/m3) 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:
720 min
= 0.115mg /m3
480 min
720 min × 0.002m /min
3
×
This is the same value as would be
obtained if 0.08 mg of quartz dust were
accumulated on an 8-hour shift.
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480 min × 0.002m /min
= 0.115mg /m3
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 § 70.207(e) would be
redesignated as proposed § 70.207(b).
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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
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EP19OC10.001</MATH>
Mechanized Mining Unit (MMU)
The proposed definition of
mechanized mining unit (MMU) would
incorporate existing requirements in
§ 70.207(f)(1) and (f)(2) and make
revisions. Like the existing standard,
MSHA would assign each MMU a fourdigit identification number which
remains with the MMU. When two sets
3
EP19OC10.000</MATH>
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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.
0.08mg
EP19OC2.016</MATH>
1.38 ×
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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
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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 ‘‘nondesignated 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:
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(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 § 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
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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/m3),
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/m3 as reported by the CPDM (i.e.,
the average exposure over the shift), by
8 hours to obtain the total daily
exposure (concentration × hours =
exposure, expressed as mg-hr/m3). 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
Shift length
(hrs)
Day
10
10
10
10
10
WAE ..........................................
........................
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.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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/m3), 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/m3, the WPAE
would be 60 mg-hr/m3 (40 hours × 1.5
mg/m3).
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
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1.5
1.5
1.5
1.5
1.5
mg/m3
mg/m3
mg/m3
mg/m3
mg/m3
Daily accumulated
exposure
...................................................
...................................................
...................................................
...................................................
...................................................
.....................................................................
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/m3 of respirable
dust.
Proposed paragraphs (a)(2) through
(a)(4) are new and would require mine
operators to lower dust levels, over a 24month phase-in period, from the
existing level of 2.0 mg/m3 of air to 1.0
mg/m3. 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
PO 00000
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/m3, the following data are obtained:
End-of-shift equivalent concentration
reported
Sun ...................................................
Mon ...................................................
Tue ....................................................
Wed ..................................................
Thur ..................................................
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12
12
12
12
12
mg-hr/m3 (1.5 mg/m3 × 8 hrs).
mg-hr/m3.
mg-hr/m3.
mg-hr/m3.
mg-hr/m3.
= 60 mg-hr/m3.
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 phasein 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/m3
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
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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/m3 as a timeweighted average (TWA) concentration
for up to 10 hours per day during a 40hour 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/m3 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/
m3, 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 longterm average dust concentrations would
be below 0.5 mg/m3 if miners’ daily
exposures were kept below the REL of
1 mg/m3 (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
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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/m3 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/m3
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/m3 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/
m3 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 § 70.207 and in Appendix A of
the preamble.
While the proposed 1.0 mg/m3
standard would significantly reduce the
risk of impairment, disease, and
premature death, MSHA’s QRA reveals
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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 §§ 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/m3, to 0.5 mg/m3 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/m3 to 0.5 mg/m3 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/m3 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.
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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/m3 (100
μg/m3) 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/m3 (100 μg mg/m3), based on a
2.0 mg/m3 respirable dust standard.
One commenter on the CPDM RFI
stated that controlling respirable dust
containing silica to the current 2.0 mg/
m3 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 https://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 μg/
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mg3. 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
§ 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 μg, 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
Weight gain
25 μg
=
× 1.38 = 36 μg/m3
3
(Flowrate)(Time)(.001) (2.0 liter/min) (480 minutes)(.001 liter/m )
D. Section 70.201 Sampling; General
and Technical Requirements
The proposed rule would revise the
operator sampling requirements in
existing § 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
§ 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
1 See
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 30minute 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
equation above.
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(approximately 36 μg/m3) would be well
below the standard of 100 μg/m3. If
there is too little quartz to analyze,
exposure is well below the standard.
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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 stateof-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: https://
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
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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, § 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
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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,
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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 § 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 §§ 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.
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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
§ 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 § 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.
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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
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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 preand 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-
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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 preweighed by the manufacturer and postweighed by MSHA. To ensure the
precision and accuracy of the preweight 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
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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 § 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
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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
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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 § 70.203 Certified
Person; Maintenance and Calibration
Proposed §§ 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 §§ 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
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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 § 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.
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Proposed § 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 §§ 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
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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
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believes that their competency would be
adequately evaluated by whether they
pass or fail the examination. For this
reason, proposed §§ 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 §§ 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 §§ 70.202 and 70.203 would
delete existing §§ 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 § 70.204 to conform to the
Agency’s existing policy for the
CMDPSU.
Proposed § 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
§ 70.204(a) would address the use of the
CPDM and require that operators who
use this device maintain it in
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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 § 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 § 70.204(b) would retain the
existing § 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 § 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 § 70.204(c), which addresses
calibration marks on the flowmeter,
would be deleted because it no longer
applies to approved sampling devices.
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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 § 70.204(c) is derived from
existing § 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 § 70.204(d)(1) through (d)(5) as
§ 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.
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Proposed § 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
§ 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
§ 70.204(e).
G. Section 70.205 Approved Sampling
Devices; Operation; Air Flowrate
Proposed § 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 § 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 § 70.205(b) and (c), which
would be redesignated as paragraphs
(b)(1) and (b)(2). Proposed § 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
§ 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 § 70.205(b)(2) would retain
the requirement in existing § 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
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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 § 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 § 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 § 70.206, discussed below.
H. Section 70.206 CPDM Performance
Plan
Proposed § 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
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specifies the information that would be
required in the Plan and would
establish Plan approval procedures.
Proposed § 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 § 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.
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Proposed § 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 § 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 § 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
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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 § 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
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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 § 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 § 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. Preoperational 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
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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 preoperational 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 § 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 endof-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 § 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
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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 § 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 § 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 § 70.206(b)(6) would require
the Plan to specify procedures or
methods for verifying the calibration of
each CPDM. The Plan should specify
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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 § 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 § 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
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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 § 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 § 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 § 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
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proposed provision is consistent with
other MSHA plan requirements.
Proposed § 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 § 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.
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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 § 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 § 70.208 which would apply
to operators who use CPDMs.
Proposed § 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
§ 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 § 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 § 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 § 70.207(b), redesignated
from existing § 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 § 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
§ 70.101.
Proposed § 70.207(c) is new and
would require that when the applicable
dust standard is changed in accordance
with proposed § 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
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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
§ 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 § 70.207(c)(1) is derived
from existing § 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 § 70.207(b) and Agency policy.
Proposed § 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
§ 70.207(c)(2) would assure that miners
who need to be on a reduced standard
are adequately protected.
Proposed § 70.207(d) would revise
existing § 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
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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 § 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, fullshift measurements is addressed
elsewhere in this preamble under
proposed § 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.
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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 § 70.207(c) as § 70.207(f).
Proposed § 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) ‘‘§ 70.100(a)
(Respirable dust standards) or § 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
‘‘§ 70.201(d)’’ with ‘‘paragraph (g).’’
The proposed rule would revise and
redesignate existing § 70.201(d) as
proposed § 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
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standard. Proposed (g)(1) would require
the operator to make approved
respirators available to affected miners
in accordance with proposed § 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 § 70.300. Proposed
paragraphs (g)(2) and (g)(3) are derived
from existing § 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 § 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 § 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 § 72.700; (2) take corrective
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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 § 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 § 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 § 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 § 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
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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
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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 § 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
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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 § 70.208(c) is new and
would require that when the respirable
dust standard is changed in accordance
with § 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
§ 70.207(c). The rationale for proposed
§ 70.208(c) is the same as that for
proposed § 70.207(c), discussed
elsewhere in the preamble.
Proposed § 70.208(d) would require
that no valid end-of-shift equivalent
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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
§ 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 § 70.208(d) is the
same as that for proposed § 70.207(e),
which is discussed elsewhere in the
preamble.
Proposed § 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 § 70.2 definitions.
For example, suppose a CPDM reported
an equivalent concentration of 1.46 mg/
m3 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/m3 × 8
hours or 11.68 mg-hr/m3. 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/m3; Tuesday—12.51 mg-hr/
m3; Wednesday—10.75 mg-hr/m3;
Thursday—9.68 mg-hr/m3; Friday—
12.00 mg-hr/m3; Saturday—10.75 mghr/m3, adding together the daily
accumulated exposures yields a WAE of
67.37 mg-hr/m3.
To continue, if the applicable
standard in the MMU is 1.5 mg/m3, this
quantity would be multiplied by 40
hours, yielding a WPAE of 60 mg-hr/m3
for the DO. Since the WAE for the DO
is 67.37 mg-hr/m3, it would exceed the
WPAE of 60 mg-hr/m3.
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/m3 as a TWA concentration for
up to 10 hr/day during a 40-hour work
week.
Proposed § 70.208(f)(1) through (f)(5)
would require the operator to take
actions when any valid end-of-shift
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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 § 72.700. The
proposal is consistent with existing
§ 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
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approval process associated with the
mine ventilation plan under existing
§ 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 7calendar 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 § 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
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supported recording of sampling results
and corrective actions taken.
Proposed § 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 § 70.208(g)(1)
and (g)(2) are identical to proposed
§ 70.208(f)(1) and (f)(2) and would
require the operator to make respirators
available to affected miners and
implement corrective actions.
Proposed § 70.208(g)(3), like proposed
§ 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 § 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-ofshift 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
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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
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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.
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K. Section 70.209
Designated Areas
Sampling of
Proposed § 70.209 is derived from
existing § 70.208 and would address
sampling of designated areas (DAs). It
would revise existing § 70.208 when
operators use a CMDPSU and add new
requirements when operators use a
CPDM.
Proposed § 70.209 would apply
initially to all DAs, but according to
§ 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 § 70.209
would continue to apply to outby areas
identified as DAs by the operator under
proposed § 75.371(t).
Proposed § 70.209(a) would revise
existing § 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 § 70.208(c) that five
additional samples must be collected to
make a compliance determination.
Proposed § 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.
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Proposed § 70.209(b), (b)(1), and (b)(2)
would apply when the respirable dust
standard has been changed under
proposed § 70.101 due to the presence
of quartz.
Proposed § 70.209(b) is new and
would require that when the applicable
dust standard is changed in accordance
with proposed § 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 § 70.207(c), which is
discussed elsewhere in the preamble.
The rationale for proposed § 70.209(b) is
the same as that for proposed
§ 70.207(c), discussed elsewhere in the
preamble.
Proposed § 70.209(b)(1) is derived
from existing § 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
§ 70.209(b)(1) is consistent with Agency
policy, existing § 70.208(b), and
proposed § 70.207(c)(1), which is
discussed elsewhere in the preamble.
Proposed § 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
§ 70.209(b)(2) is consistent with
proposed § 70.207(c)(2). The rationale
for proposed § 70.209(b)(2) is the same
as that for proposed § 70.207(c)(2),
which is discussed elsewhere in the
preamble.
Proposed § 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 § 70.209(c) is consistent with
proposed § 70.207(e), and other
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proposed provisions in parts 71 and 90.
The rationale for proposed § 70.209(c) is
the same as that for proposed
§ 70.207(e), which is discussed
elsewhere in the preamble.
Proposed § 70.209(d) would revise
existing § 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 § 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 § 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 § 70.209(e) is
consistent with proposed § 70.207(g).
The rationale for proposed § 70.209(e) is
identical to that for proposed
§ 70.207(g), which is discussed
elsewhere in the preamble.
Proposed § 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 § 70.209(f) and its
rationale are identical to proposed
§ 70.207(h), which is discussed
elsewhere in the preamble.
Proposed § 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)
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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
§ 70.209(g)(1) and (g)(2) would require
the operator to make respirators
available to affected miners and
implement corrective actions. Proposed
§ 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 § 75.363. Proposed
§ 70.209(g)(3)(i)–(g)(3)(v) specify the
information to include in the record.
Proposed § 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 endof-shift equivalent concentration on the
mine bulletin board. Proposed
§ 70.209(g) and its rationale are identical
to proposed § 70.208(g), which is
discussed elsewhere in the preamble.
The proposed rule would make other
minor changes to existing § 70.208.
Existing § 70.208(e) would be deleted
because § 75.371 addresses where DA
samples are collected. The proposed
rule would redesignate without change
existing § 70.208(f), which addresses
revocation of operators’ mine
ventilation plans, as proposed
§ 70.209(h).
L. Section 70.210 Respirable Dust
Samples; Transmission by Operator
Proposed § 70.210, redesignated from
existing § 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
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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 personalidentifiable 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
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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 § 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 § 70.211, redesignated from
existing § 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 § 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
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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 § 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
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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 § 70.212, redesignated from
existing § 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 § 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 fourdigit 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.
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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 nonsubstantive 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
Standards
Respirable Dust
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/m3 of respirable dust.
Proposed paragraphs (b) through (d)
are new and would require mine
operators to lower dust levels, over a 24month phase-in period, from the
existing level of 2.0 mg/m3 of air to 1.0
mg/m3. MSHA solicits comment on the
proposed phase-in periods and requests
that a detailed rationale accompany any
comment or recommendation that is
submitted.
Proposed § 71.100(a) through (d) are
identical to proposed § 70.100(a)(1)
through (a)(4) and the rationale is
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discussed elsewhere in the preamble
related to proposed § 70.100(a)(1)
through (a)(4).
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C. Section 71.101 Respirable Dust
Standard When Quartz is Present
Proposed § 71.101 would be identical
to proposed § 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 § 71.201.
Proposed paragraph (a) would make a
nonsubstantive change to existing
§ 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
§ 71.201(b) is consistent with proposed
§ 70.201(e); however, the language in
proposed § 71.201(b) would be tailored
to apply to DWPs. The rationale for the
proposed provision is the same as that
in proposed § 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
§ 71.201(b)(1) is the same as proposed
§ 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
§ 70.201(e)(2). The rationale for
proposed § 71.201(b)(1) and (b)(2) is
discussed elsewhere in the preamble
related to proposed § 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
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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 § 71.201(c)(1) through (c)(4)
are identical to proposed § 70.201(f)(1)
through (f)(4) and the rationale is
discussed elsewhere in the preamble
related to proposed § 70.201(f).
The proposed rule would revise and
move existing § 71.201(d) to proposed
§ 71.207(k), which would apply to
operators who use a CMDPSU or a
CPDM for sampling DWPs. Proposed
§ 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 § 71.201(g) is the same as
proposed § 70.201(j) and the rationale is
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64439
discussed elsewhere in the preamble
related to proposed § 70.201(j). In
addition, proposed paragraphs (g)(1)–
(5), which are identical to proposed
§ 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
§ 71.201(h) is the same as proposed
§ 70.201(k) and the rationale is
discussed elsewhere in the preamble
related to proposed § 70.201(k).
E. Section 71.202 Certified Person;
Sampling and § 71.203 Certified
Person; Maintenance and Calibration
Proposed §§ 71.202 and 71.203 would
be identical to proposed §§ 70.202 and
70.203, discussed elsewhere in this
preamble.
F. Section 71.204 Approved Sampling
Devices; Maintenance and Calibration
Proposed § 71.204 would be identical
to proposed § 70.204, discussed
elsewhere in this preamble.
G. Section 71.205 Approved Sampling
Devices; Operation; Air Flowrate
Proposed § 71.205 would be identical
to proposed § 70.205 with one
exception. The last sentence of
proposed §§ 70.205(b)(1) is not included
in proposed § 71.205 since it applies to
underground areas of anthracite coal
mines. The rationale for proposed
§ 71.205 is the same as that for proposed
§ 70.205, which is discussed elsewhere
in the preamble.
H. Section 71.206 CPDM Performance
Plan
Proposed § 71.206 would be identical
to proposed § 70.206, discussed
elsewhere in this preamble, with one
exception. Proposed § 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
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unique 9-digit number. Though the 9digit 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 § 71.207 is derived from
existing § 71.208 and would address
sampling of designated work positions
(DWPs) when using a CMDPSU or
CPDM.
Proposed § 71.207(a) would revise
existing § 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
§ 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 § 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 § 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
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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 § 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 § 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 § 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 § 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 § 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
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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 § 71.207(d), redesignated
from existing § 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 § 70.205(b)(2) and Agency
policy.
Proposed § 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/m3
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/
m3, 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 § 70.207(d). The
rationale for proposed § 71.207(d) is the
same as for proposed § 70.207(d), which
is discussed elsewhere in the preamble.
Proposed § 71.207(e), redesignated
from existing § 71.208(g), would include
a minor, nonsubstantive change.
Proposed § 71.207(f), redesignated
from existing § 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/m3 and MSHA samples taken for a
work position at a surface mine show
respirable dust concentrations of 0.8
and 1.0 mg/m3. Both samples exceed
0.75 mg/m3, 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
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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 § 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/m3, which is 50% of the existing
standard.
Proposed § 71.207(f) would also revise
existing § 71.208(e) and provide that if
the respirable dust standard is reduced
in accordance with proposed § 71.101 to
a level below the respirable dust
standard under proposed § 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/m3 to 1.2 mg/m3
and one or more MSHA samples for the
position exceed 1.2 mg/m3, 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 § 71.207(g), redesignated
from existing § 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.
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Proposed § 71.207(h), (h)(1), and
(h)(2) would apply when the respirable
dust standard has been changed under
proposed § 71.101 due to the presence
of quartz.
Proposed § 71.207(h) is new and
would require that when the applicable
dust standard is changed in accordance
with proposed § 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 § 70.207(c), which is
discussed elsewhere in the preamble.
Proposed § 71.207(h)(1) is derived
from existing § 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 § 71.207(h)(1) is also
consistent with Agency policy and
proposed § 70.207(c)(1), which is
discussed elsewhere in the preamble.
Proposed § 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 § 71.207(h)(2) would afford
additional protection for miners who
need to be on a reduced standard.
Proposed § 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 § 71.207(i) is consistent with
proposed § 70.207(e), which would
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apply when CMDPSUs are used, and
§ 70.208(d), which would apply when
CPDMs are used. The rationale for the
proposed provision is the same as that
for proposed §§ 70.207(e) and 70.208(d),
which are discussed elsewhere in the
preamble.
Proposed § 71.207(j), redesignated
from existing § 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 § 71.201(d) as
proposed § 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
§ 72.700. The proposal is consistent
with existing § 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 § 71.207(k)(1) is
consistent with proposed § 70.207(g)(1).
The rationale for proposed
§ 71.207(k)(1) is the same as that for
proposed § 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
§ 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
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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 7calendar 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 § 70.208(f)(4)
which would apply when operators use
a CPDM.
MSHA believes that proposed
§ 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 § 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
§ 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 §§ 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 § 71.208(c) as proposed
§ 71.207(m). Proposed § 71.207(m)
would remain essentially the same as
existing § 71.208(c), with minor
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changes. Like the existing standard,
proposed § 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 § 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 § 71.207(n) is derived from
existing § 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-ofshift 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
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plan revisions for approval. This
proposed provision is consistent with
proposed §§ 70.208(g)(4), 70.209(g)(4),
and 90.209(f)(4).
J. Section 71.208 Respirable Dust
Samples; Transmission by Operator
Proposed § 71.208, redesignated from
existing § 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
§ 71.208(c) is similar to proposed
§ 70.210(c), and the rationale is
discussed elsewhere in the preamble
related to proposed § 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
§ 71.208(f) is similar to proposed
§ 70.210(f), and the rationale is
discussed elsewhere in the preamble
related to proposed § 70.210(f).
K. Section 71.209 Respirable Dust
Samples; Report to Operator; Posting
Proposed § 71.209, redesignated from
existing § 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 § 71.209
would include non-substantive changes
in paragraphs (a)(2) through (a)(4),
revise paragraph (b), and add a new
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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 § 71.208(a)). Since proposed
§ 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
§ 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)
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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 § 71.210, redesignated from
existing § 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 § 71.210(c) is identical to
proposed § 70.212(c), and the rationale
is discussed elsewhere in the preamble
related to proposed § 70.212(c).
M. Section 71.300 Respirable Dust
Control Plan; Filing Requirements
Proposed § 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 § 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 § 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 § 71.100 (Respirable dust
standard) or § 71.101 (Respirable dust
standard when quartz is present)’’ with
‘‘As required by § 71.207(l).’’ Proposed
§ 71.207(l) is discussed elsewhere in the
preamble. Proposed § 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
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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 § 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 § 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 § 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 § 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’
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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 § 71.300(a)(4) would require
that, when requested, the District
Manager must provide operators with a
copy of the miners’ representatives’
comments. Proposed § 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 § 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
§ 71.300(b)(3) and (b)(4).
N. Section 71.301 Respirable Dust
Control Plan; Approval by District
Manager and Posting
Proposed § 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 § 71.301(a)(1) and 71.301(b),
and proposing to add a new
§ 71.301(d)(1) through 71.301(d)(3). No
changes are proposed for existing
§ 71.301(a)(2), (c), and (e).
For consistency and clarification,
proposed § 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 § 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 § 71.301(a)(1). The
proposed language would clarify that
the operator’s dust control measures
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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 § 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
§ 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 § 71.301(d)(3), derived from
existing § 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 § 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
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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 xray 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
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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 NIOSHapproved 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
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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 5year 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 followup 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
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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 § 72.700 would revise and
redesignate existing § 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 § 72.700(a) would revise
and redesignate existing § 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
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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 § 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 § 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 § 72.700(a) would retain the
existing requirement under § 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
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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
§ 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 § 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
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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 § 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 § 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 § 72.700(c) would also
require operators to provide training
records to an authorized representative
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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.
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C. Section 72.701 Respiratory
Equipment; Gas, Dusts, Fumes, or Mists
Proposed § 72.701, redesignated from
existing § 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 § 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 https://
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
§ 202(f), concluding that ‘‘single shift
measurement of respirable dust will not,
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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, fullshift 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 fullshift 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
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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)), 1,2dibromo-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
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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,
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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 shortterm 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
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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
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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
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A. Section 75.325
Air Quantity
The proposed rule would revise
existing § 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 machinemounted 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 § 75.325 specifies where
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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 § 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 § 75.332 and the proposed
MMU definition, discussed elsewhere in
the preamble related to proposed § 70.2,
would improve miners’ health by
reducing their exposure to respirable
dust.
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C. Section 75.350
Ventilation
64449
Belt Air Course
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/m3.
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/m3 to 0.5
mg/m3 on [date 6 months after the
effective date of the final rule]. The
proposed lower limit of 0.5 mg/m3 is
50% of the proposed 1.0 mg/m3
respirable dust standard in proposed
§ 70.100(a)(4), and is consistent with
proposed §§ 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/m3 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/m3. Proposed paragraph (b)(3)(ii)
would replace ‘‘1.0 mg/m3’’ 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/m3 to 0.5
mg/m3 after a six-month phase-in
period.
D. Section 75.362
Examinations
On-shift
Proposed § 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
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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 § 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 ongoing 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
§ 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
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(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
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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 § 75.362. The
Committee explained that the results of
the on-shift examinations were
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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 § 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
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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
§ 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.
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64451
MSHA recognizes that ventilation and
dust suppression systems necessary to
control respirable dust must be based on
the conditions of the mine.
Proposed § 75.371(t) would include a
nonsubstantive change to replace a
parenthetical reference to existing
§ 70.208 with proposed § 70.209,
because § 70.208 has been redesignated
as § 70.209 in the proposed rule.
30 CFR Part 90
A. Section 90.1 Scope
Proposed § 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
§ 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/
m3 to 0.5 mg/m3, in proposed § 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 § 70.2.
Part 90 Miner
The proposed rule would amend the
existing definition of part 90 miner to
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state it applies to a miner employed at
‘‘a coal mine.’’ This proposed revision
would conform with proposed § 90.3,
which extends part 90 protections to
surface miners. Proposed § 90.3 is
discussed elsewhere in the preamble.
The proposal would also make a
conforming change to replace ‘‘1.0 mg/
m3’’ with ‘‘the applicable standard.’’ The
change would reflect that the respirable
dust standard would change from 1.0
mg/m3 to 0.5 mg/m3 after a six-month
phase-in period. Other minor
nonsubstantive changes would be made.
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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 § 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 § 90.1, proposed § 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 § 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’’
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to reflect that the respirable dust
standard would change from 1.0 mg/m3
to 0.5 mg/m3 after a six-month phase-in
period.
The proposal would make conforming
changes to proposed § 90.3(d) and (e) to
extend the part 90 transfer option to
surface coal miners.
D. Section 90.100 Respirable Dust
Standard
Proposed § 90.100 would reduce the
respirable dust standard from 1.0 mg/m3
to 0.5 mg/m3 for part 90 miners on [date
six months after the effective date of the
final rule]. The proposed lower limit of
0.5 mg/m3 is 50% of the proposed 1.0
mg/m3 respirable dust standard in
proposed § 70.100(a)(4) and 71.100(d),
and consistent with § 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/m3, 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
§ 90.101 is identical to proposed
§ 70.101, discussed elsewhere in this
preamble, however, the language in
proposed § 90.101(b) has been tailored
to apply to part 90 miners.
F. Section 90.102 Transfer; Notice
The proposed rule would revise
existing § 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
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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 § 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 § 90.103(c) is new and
would provide that the existing
provisions in §§ 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
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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 § 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 § 90.103(c) as proposed
§ 90.103(d); existing § 90.103(d) as
proposed § 90.103(e); existing
§ 90.103(e) as proposed § 90.103(f); and
existing § 90.103(f) as proposed
§ 90.103(g.) No other changes are
proposed for these provisions.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
H. Section 90.104 Waiver of Rights;
Re-exercise of Option
Proposed § 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 § 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 § 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, § 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 § 90.201(a) is
consistent with proposed § 70.201(a);
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however, the language in proposed
§ 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 § 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
§ 90.201(b) is consistent with proposed
§ 70.201(e); however, the language in
proposed § 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 § 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
§ 90.201(b)(1) is the same as proposed
§ 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 13thhour of operation. Proposed paragraph
(b)(2) is the same as proposed
§ 70.201(e)(2). The rationale for
proposed § 90.201(b)(1) and (b)(2) is
discussed elsewhere in the preamble
related to proposed § 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
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the exposed samples after sampling.
Proposed § 90.201(d)(1) through (d)(4)
are identical to proposed § 70.201(f)(1)
through (f)(4) and the rationale is
discussed elsewhere in the preamble
related to proposed § 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 § 90.201(d) to proposed
§ 90.208(e), which would apply to
operators who use a CMDPSU for
sampling the work environment of part
90 miners. Proposed § 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 § 90.201(h) is the
same as proposed § 70.201(j) and the
rationale is discussed elsewhere in the
preamble related to proposed
§ 70.201(j). In addition, proposed (h)(1)–
(5), which are identical to proposed
§ 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
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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 § 90.201(i) is
the same as proposed § 70.201(k), except
tailored for part 90 miners, and the
rationale is discussed elsewhere in the
preamble related to proposed
§ 70.201(k).
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.
L. Section 90.205 Approved Sampling
Devices; Operation; Air Flowrate
Proposed § 90.205 would be identical
to proposed § 70.205, discussed
elsewhere in this preamble.
N. Section 90.207 Exercise of Option
or Transfer Sampling
Proposed § 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 § 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
§ 90.101 (Respirable dust standard when
quartz is present).’’ This proposed
revision reflects that the respirable dust
standard would change from 1.0 mg/m3
to 0.5 mg/m3 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.
M. Section 90.206 CPDM Performance
Plan
Proposed § 90.206 would be identical
to proposed § 70.206, discussed
elsewhere in this preamble, with a few
exceptions. Proposed § 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 §§ 70.206(a)(1)–(a)(2) and
(a)(4) and 71.206(a)(1)–(a)(2) and (a)(4),
proposed § 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 § 90.206
does not include requirements in
proposed §§ 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
§§ 90.206(d) would require a copy of the
O. Section 90.208 Compliance
Sampling; Procedures for Sampling
With CMDPSUs
Proposed § 90.208 would revise the
existing sampling requirements for part
90 miners. The proposal would change
the title to distinguish it from proposed
§ 90.209, which would apply to
operators who use a CPDM to sample
part 90 miners.
Proposed § 90.208(a) would revise
existing § 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
J. Section 90.202 Certified Person;
Sampling and § 90.203 Certified
Person; Maintenance and Calibration
Proposed §§ 90.202 and 90.203 would
be identical to proposed §§ 70.202 and
70.203, discussed elsewhere in this
preamble.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
K. Section 90.204 Approved Sampling
Devices; Maintenance and Calibration
Proposed § 90.204 would be identical
to proposed § 70.204, discussed
elsewhere in this preamble.
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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 § 90.2
related to definitions. The proposed
change to include representative
samples would offer greater protection
for miners.
Proposed § 90.208(b), (b)(1), and (b)(2)
would apply when the respirable dust
standard under § 90.101 has been
changed due to the presence of quartz.
Proposed § 90.208(b) is new and would
require that when the applicable dust
standard is changed in accordance with
proposed § 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 § 90.208(b)(1) is derived from
existing § 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 § 90.208(b), (b)(1),
and (b)(2) are consistent with proposed
§ 70.207(c), (c)(1), and (c)(2). The
rationale for proposed § 90.208(b),
(b)(1), and (b)(2) is the same as that for
§ 70.207(c), (c)(1), and (c)(2), which is
discussed elsewhere in the preamble.
Proposed § 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 § 90.208(c) is
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consistent with proposed § 70.207(e). A
discussion on the proposed use of ECVs
and rationale is addressed elsewhere in
the preamble under proposed
§ 70.207(e).
The proposed rule would redesignate
existing § 90.208(c) as proposed
§ 90.208(d). Proposed § 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 § 90.208(d) is consistent
with proposed § 70.207(f). The rationale
is the same as that for proposed
§ 70.207(f) discussed elsewhere in the
preamble. The proposal would make
conforming, nonsubstantive revisions to
the existing standard. Proposed
§ 90.208(d) would replace ‘‘§ 90.100
(Respirable dust standard) or § 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
‘‘§ 90.201(d)’’ with ‘‘paragraph (e)’’ since
proposed § 90.208(e) would address the
operators’ requirements to abate
violations of the respirable dust
standard for part 90 miners.
Proposed § 90.208(e), derived from
existing § 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
§ 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 § 90.102 and then sample the
affected miner in accordance with
proposed § 90.207(a). Proposed
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§ 90.208(e)(1) and (e)(2)(i) are consistent
with proposed §§ 70.207(g)(1)–(g)(3) and
70.209(e)(1)–(e)(3). The rationale for
proposed § 90.208(e)(1) and (e)(2)(i) is
identical to that in proposed § 70.207(g),
which discussed elsewhere in this
preamble. Proposed § 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 § 90.208(f), derived from
existing § 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
§ 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 §§ 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 § 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 § 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 § 75.363. This proposed
provision and its rationale are identical
to proposed § 70.207(i).
P. Section 90.209 Compliance
Sampling; Procedures for Sampling
With CPDMs
Proposed § 90.209 is new and would
provide requirements on sampling the
working environment of part 90 miners
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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 § 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 § 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 § 90.209(b) would require
that when the applicable dust standard
is changed in accordance with proposed
§ 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
§ 90.209(b) is identical to proposed
§ 90.208(b) and consistent with
proposed §§ 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 § 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 § 90.209(c) is consistent
with proposed §§ 70.207(e) and
70.208(d). As discussed elsewhere in
the preamble under proposed
§§ 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 § 90.209(c) is the
same as that in proposed § 70.207(e),
which is discussed elsewhere in the
preamble.
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Proposed § 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 § 90.2 definitions.
For example, suppose a CPDM reported
an equivalent concentration of 1.0 mg/
m3 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/m3 × 8 hours or 8.00 mg-hr/m3. 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/m3; Tuesday—
6.32 mg-hr/m3; Wednesday—7.84 mghr/m3; Thursday—6.80 mg-hr/m3;
Friday—5.69 mg-hr/m3; Saturday—4.16
mg-hr/m3, adding together the daily
accumulated exposures yields a WAE of
38.81 mg-hr/m3.
To continue, if the applicable
standard for the part 90 miner is 1 mg/
m3, this quantity would be multiplied
by 40 hours, yielding a WPAE of 40 mghr/m3 for the part 90 miner. Since the
WAE for the part 90 miner is 38.81 mghr/m3, it would not exceed the WPAE of
40 mg-hr/m3.
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/m3 as a TWA
concentration for up to 10 hr/day during
a 40-hour work week. Proposed
§ 90.209(d) and its rationale are
identical to proposed § 70.208(e), which
is discussed elsewhere in the preamble.
Proposed § 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 § 90.209(e) is consistent with
proposed § 70.208(f); however, the
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language in proposed § 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
§ 72.700. The proposal is consistent
with existing § 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 §§ 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 § 90.300 to the District
Manager for approval within 3 days of
determining that the applicable
standard has been exceeded. The
rationale for proposed § 90.209(e)(3) is
the same as that in proposed
§ 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
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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
§ 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 § 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 § 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 § 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-ofshift 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 § 90.209(e)(5) is the same as
that for proposed § 70.208(f)(5), which is
discussed elsewhere in the preamble.
Proposed paragraph (e)(6) would
require the operator to comply with
proposed §§ 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
§ 90.102(c) notice requirements and
proposed § 90.207(a) sampling
requirements.
Proposed § 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
§ 90.209(f)(1) through (f)(4), like
proposed § 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
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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 § 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 § 90.209(e)(1) and (e)(2) and
proposed § 70.208(g)(1) and (g)(2). The
rationale for this part 90 provision is the
same as that for proposed § 70.208(g)(1)
and (2), which is discussed elsewhere in
the preamble.
Proposed § 90.209(f)(3), like proposed
§ 90.209(e)(5) and proposed
§ 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 § 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
§ 90.209(f)(4) is the same as that for
proposed § 90.209(e)(4).
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Q. Section 90.210 Respirable Dust
Samples; Transmission by Operator
Proposed § 90.210, redesignated from
existing § 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
§ 90.210(c) is identical to proposed
§ 70.210(c), and the rationale is
discussed elsewhere in the preamble
related to proposed § 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 § 90.210(f) is
identical to proposed § 70.210(f), and
the rationale is discussed elsewhere in
the preamble related to proposed
§ 70.210(f).
R. Section 90.211 Respirable Dust
Samples; Report to Operator
Proposed § 90.211, redesignated from
existing § 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
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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-ofshift 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
§ 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
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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 § 90.210(b).
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S. Section 90.212 Status Change
Reports
Proposed § 90.212(a), redesignated
from existing § 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 § 90.300 would address
requirements for filing a dust control
plan for a part 90 miner. MSHA is
proposing to revise § 90.300(a) and
90.300(b)(2) and (b)(3); no changes are
proposed for § 90.300(b)(1) or (b)(4).
Proposed § 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 § 90.300(a).
MSHA’s rationale for proposing this
change is the same as for proposed
§ 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.
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The proposed rule would delete
language in existing § 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
§ 90.100 or § 90.101. Instead proposed
§ 90.300(a) would require the plan to be
submitted ‘‘As required by § 90.208(f)
and § 90.209(e)(3).’’ Both referenced
sections, § 90.208(f) and § 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 § 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 § 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 § 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 § 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 § 90.301(a)(1) and
(b) would be identical to proposed
§ 70.301, discussed elsewhere in this
preamble. MSHA is not proposing
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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,
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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, subbituminous 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.
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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 (μm) in
diameter (note: 1 μm = [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 μm in
diameter but most respirable particles
(68 FR 10784) are approximately 1–2 μm
in diameter.
Because dust in this size range is
responsible for disease, it is the fraction
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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, hairlike 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
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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 a1-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
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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., scarproducing) 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
U.S. .......................
Turkey ...................
U.S. .......................
U.S. .......................
U.S. .......................
Various .................
U.S. .......................
Tenure ..................
Tenure ..................
N/A ........................
Tenure & Job ........
N/A ........................
N/A ........................
Tenure ..................
..........
..........
..........
√
..........
√
..........
..........
√
..........
√
..........
..........
..........
..........
..........
..........
√
..........
√
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
√
..........
..........
..........
..........
..........
..........
√
..........
√
√
√
√
√
√
√
√
..........
√
√
..........
√
√
..........
..........
..........
..........
..........
..........
..........
U.S. .......................
Region & CDE ......
..........
..........
√
..........
..........
√
√
√
√
U.S. .......................
..........
..........
..........
..........
..........
√
..........
..........
U.S. .......................
France ..................
Review ..................
# Miners/Region &
Tenure.
N/A ........................
CDE ......................
...............................
..........
Beeckman et al., 2001*
Bourgkard et al., 1998
Coggon and NewmanTaylor, 1998+.
Cohen et al., 2008+ ....
Cowie et al., 1999 .......
Green et al., 1998a* ...
Green et al., 1998b* ...
Henneberger and
Attfield, 1997*.
Hurley et al., 2002 ......
Kuempel et al., 1997*
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Althouse et al., 1998*
Altin et al., 2004 ..........
Antao et al., 2005* ......
Antao et al., 2006 .......
Attfield et al., 2004 ......
Attfield et al., 2007+ ....
Attfield and Petsonk,
2007*.
Attfield and Kuempel,
2008*.
Attfield et al., 2009* ....
√
√
√
√
√
√
√
√
√
√
..........
..........
√
..........
√
√
..........
√
..........
√
√
..........
..........
..........
..........
..........
..........
U.S. .......................
Britain ...................
U.S. .......................
U.S. .......................
U.S. .......................
N/A ........................
CDE ......................
Tenure ..................
Tenure ..................
CDE ......................
√
√
..........
..........
√
..........
√
..........
..........
√
√
√
..........
..........
√
..........
..........
..........
..........
..........
√
..........
..........
..........
..........
√
..........
√
√
..........
√
..........
√
√
..........
√
..........
√
√
..........
..........
..........
..........
..........
..........
Britain ...................
U.S. .......................
..........
√
√
..........
√
..........
..........
..........
..........
√
..........
√
√
√
√
√
..........
..........
Kuempel et al., 2009a*
Kuempel et al., 2009b*
Lin et al., 2001 ............
Love et al., 1997 .........
MacCalman and Miller,
2009.
Meijers et al., 1997 .....
Miller et al., 1997 ........
Miller et al., 2007 ........
Naidoo et al., 2004 .....
Naidoo et al., 2005 .....
Naidoo et al., 2006 .....
Page and Organiscak,
2000.
Peng et al., 2005 [abstract].
Pon et al., 2003* .........
Ross and Murray,
2004+.
Scarsbrick and Quinlan, 2002.
U.S. .......................
U.S. .......................
Taiwan ..................
Britain ...................
Britain ...................
CDE (N/A) ............
RDC & CDE &
Tenure.
CDE ......................
CDE & Tenure ......
Tenure ..................
RDC ......................
Tenure ..................
√
..........
√
√
..........
..........
..........
√
..........
..........
..........
..........
√
√
√
..........
..........
..........
√
..........
..........
..........
√
..........
√
√
√
..........
..........
√
..........
√
√
√
√
..........
√
..........
..........
√
..........
..........
..........
..........
√
Dutch ....................
Britain ...................
Britain ...................
S. Africa ................
S. Africa ................
S. Africa ................
U.S. .......................
Tenure ..................
CDE ......................
CDE ......................
CDE ......................
CDE ......................
CDE ......................
N/A ........................
√
..........
..........
√
√
√
..........
√
..........
..........
√
..........
√
√
√
..........
..........
..........
..........
√
..........
√
..........
..........
..........
√
..........
√
√
√
√
√
√
√
..........
√
..........
√
..........
√
..........
√
..........
..........
..........
..........
..........
..........
..........
..........
√
..........
√
..........
..........
China ....................
RDC ......................
√
..........
..........
..........
..........
..........
..........
..........
..........
U.S. .......................
Various .................
Tenure ..................
N/A ........................
..........
√
..........
√
..........
√
..........
..........
..........
..........
..........
√
√
√
√
..........
..........
..........
Britain ...................
N/A ........................
..........
..........
..........
..........
..........
..........
√
..........
..........
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TABLE V–1—RESPIRABLE COAL MINE DUST EPIDEMIOLOGICAL STUDIES, REPORTED EFFECTS FROM 1997 TO PRESENT—
Continued
Reported effects
Study
Population studied
Exposure measure
LLF
Smith and Leggat,
2006.
Soutar et al., 2004+ ....
Wang et al., 1997 .......
Wang et al., 2005 .......
Wang et al., 2007 .......
Wang ML et al., 1999
Wang X et al., 1999 ....
Yeoh and Yang, 2002
RS
CB
A
COPD
E
CWP
PMF
NMRD
Australia ................
N/A ........................
..........
..........
..........
..........
..........
..........
√
..........
..........
Britain ...................
China ....................
China ....................
China ....................
U.S. .......................
China ....................
Taiwan ..................
RDC & CDE .........
Tenure ..................
T & RDC ...............
RDC ......................
Tenure ..................
Tenure ..................
Tenure ..................
√
√
√
√
√
√
√
..........
..........
..........
√
..........
√
..........
..........
..........
..........
√
..........
√
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
√
..........
√
..........
..........
..........
√
..........
√
..........
..........
..........
..........
√
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√
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..........
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√
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..........
..........
..........
..........
..........
..........
* 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
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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 dustrelated 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
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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/
m3 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
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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
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jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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 healthbased 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
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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 noncontract 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).
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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
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jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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 followup. 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
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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
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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
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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/m3
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
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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 40year working life at the existing limit of
2 mg/m3. 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 ................
Supervisors in extractive occupations ...............................................
Mining engineers ..............................
Mining occupations not elsewhere
classified .......................................
Miscellaneous
material
moving
equipment operators .....................
Locomotive operating occupations ...
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51.7
14.4
6.0
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)
4.5
a. Pulmonary Function
2.3
2.0
The feature common to obstructive
pulmonary diseases is obstructed
ventilation. This physiological defect is
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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/m3. 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/m3 and for
former miners, at 2.2 ml/mg-year/m3.
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
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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/m3. (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 xrays, 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
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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 exposureresponse 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
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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.
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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/m3). 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/m3. (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/m3 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/m3 dust
exposure. The authors also estimated
the prevalence of chronic bronchitis at
age 58 would be 4.0% per 100 gramhour/m3 of dust exposure. These miners
averaged over 35 years of tenure in
mining and a cumulative dust exposure
of 132 gram-hour/m3 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 longterm health effects associated with rapid
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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 packyears 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
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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/m3 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/m3·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 clinicallyrelevant 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 nonminers 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
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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 nonminer 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
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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, fullshift 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/m3.
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/m3)) through
medium (20.11–72.77 mg-yr/m3) to high
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(72.78 to 258.70 mg-yr/m3) levels.
Miners diagnosed with an average CWP
profusion of greater than 1/0 had
significantly more cumulative dust
exposure of 115 mg.years/m3 as
compared to miners without CWP who
had dust exposure of 57.72 mg-yr/m3.
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
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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 clinicallyimportant 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
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Fmt 4701
Sfmt 4702
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/m3.
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
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jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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 https://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
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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/m3. 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 nonwhite 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.
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Fmt 4701
Sfmt 4702
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
70 ..............................
70.1 ...........................
70.2 ...........................
70.100 .......................
70.100(a) ...................
70.100(b) ...................
70.101 .......................
70.101(a) ...................
70.101(b) ...................
70.201 .......................
70.201(a) ...................
70.201(b) ...................
70.201(c) ...................
70.201(d) ...................
70.201(e) ...................
70.201(e)(1) ..............
70.201(e)(2) ..............
70.201(f) ....................
70.201(g) ...................
70.201(h) ...................
70.201(i) ....................
70.201(j) ....................
70.201(k) ...................
70.202 .......................
70.202(a) ...................
70.202(b) ...................
70.202(c) ...................
70.202(d) ...................
70.203 .......................
70.203(a) ...................
70.203(b) ...................
70.203(c) ...................
70.203(d) ...................
70.204 .......................
70.204(a) ...................
70.204(b) ...................
70.204(c) ...................
70.204(c)(1) ...............
70.204(c)(2) ...............
70.204(c)(3) ...............
70.204(c)(4) ...............
70.204(c)(5) ...............
70.204(d) ...................
70.204(e) ...................
70.205 .......................
70.205(a) ...................
E:\FR\FM\19OCP2.SGM
19OCP2
Existing section
70
70.1
70.2, 70.206,
70.207(f), new
70.100
70.100(a), new
70.100(b), new
70.101
70.101, new
70.101, new
70.201
70.201(a), new
new
new
new
70.201(b), new
new
new
new
new
70.201(c), new
new
new
new
70.202
70.202(a)
70.202(b), new
new
new
70.203
70.203(a)
70.203(b), new
new
new
70.204
70.204(a), new
70.204(b), new
70.204(d), new
70.204(d)(2), new
70.204(d)(3), new
70.204(d)(4), new
70.204(d)(5), new
70.204(d)(1), new
new
70.204(e)
70.205
70.205(a), new
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DERIVATION TABLE—Continued
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Proposed section
70.205(b) ...................
70.205(b)(1) ..............
70.205(b)(2) ..............
70.205(c) ...................
70.206 .......................
70.207 .......................
70.207(a) ...................
70.207(b) ...................
70.207(b)(1) ..............
70.207(b)(2) ..............
70.207(b)(3) ..............
70.207(b)(4) ..............
70.207(b)(5) ..............
70.207(b)(6) ..............
70.207(b)(7) ..............
70.207(b)(8) ..............
70.207(b)(9) ..............
70.207(b)(10) ............
70.207(c) ...................
70.207(c)(1) ...............
70.207(c)(2) ...............
70.207(d) ...................
70.207(e) ...................
70.207(f) ....................
70.207(g) ...................
70.207(g)(1) ..............
70.207(g)(2) ..............
70.207(g)(3) ..............
70.207(h) ...................
70.207(i) ....................
70.207(i)(1) ................
70.207(i)(2) ................
70.207(i)(3) ................
70.208 .......................
70.208(a) ...................
70.208(a)(1) ..............
70.208(a)(2) ..............
70.208(b) ...................
70.208(b)(1) ..............
70.208(b)(2) ..............
70.208(b)(3) ..............
70.208(b)(4) ..............
70.208(b)(5) ..............
70.208(b)(6) ..............
70.208(b)(7) ..............
70.208(b)(8) ..............
70.208(b)(9) ..............
70.208(b)(10) ............
70.208(c) ...................
70.208(d) ...................
70.208(e) ...................
70.208(f) ....................
70.208(f)(1) ...............
70.208(f)(2) ...............
70.208(f)(3) ...............
70.208(f)(4) ...............
70.208(f)(5) ...............
70.208(g) ...................
70.208(g)(1) ..............
70.208(g)(2) ..............
70.208(g)(3) ..............
70.208(g)(4) ..............
70.208(h) ...................
70.209 .......................
70.209(a) ...................
70.209(b) ...................
70.209(b)(1) ..............
70.209(b)(2) ..............
70.209(c) ...................
70.209(d) ...................
70.209(e) ...................
70.209(e)(1) ..............
VerDate Mar<15>2010
DERIVATION TABLE—Continued
Existing section
70.205(b)
70.205(b), 70.205(d)
70.205(c), new
new
new
70.207, new
70.207(a), new
70.207(e)
70.207(e)(1)
70.207(e)(2)
70.207(e)(3)
70.207(e)(4)
70.207(e)(5)
70.207(e)(6)
70.207(e)(7)
70.207(e)(8)
70.207(e)(9)
70.207(e)(10)
new
70.207(b), new
new
70.207(d), new
new
70.207(c)
70.201(d), new
70.300, new
new
70.201(d), new
new
new
new (70.300)
new
new
new
70.207(a), new
70.207(a), new
70.207(a), new
70.207(e), new
70.207(e)(1), new
70.207(e)(2), new
70.207(e)(3), new
70.207(e)(4), new
70.207(e)(5), new
70.207(e)(6), new
70.207(e)(7), new
70.207(e)(8), new
70.207(e)(9), new
70.207(e)(10), new
new
new
new
70.201(d), new
70.300, new
70.201(d), new
new
new
new
new
new (70.300)
new
new
new
new
70.208, new
70.208(a), new
new
70.208(b), new
new
new
70.208(d)
70.201(d),new
70.300, new
18:16 Oct 18, 2010
Jkt 223001
Proposed section
70.209(e)(2) ..............
70.209(e)(3) ..............
70.209(f) ....................
70.209(g) ...................
70.209(g)(1) ..............
70.209(g)(2) ..............
70.209(g)(3) ..............
70.209(g)(4) ..............
70.209(h) ...................
70.210 .......................
70.210(a) ...................
70.210(b) ...................
70.210(c) ...................
70.210(d) ...................
70.210(e) ...................
70.210(f) ....................
70.211 .......................
70.211(a) ...................
70.211(a)(1) ..............
70.211(a)(2) ..............
70.211(a)(3) ..............
70.211(a)(4) ..............
70.211(a)(5) ..............
70.211(a)(6) ..............
70.211(b) ...................
70.211(c) ...................
70.211(c)(1) ...............
70.211(c)(1)(i) ...........
70.211(c)(1)(ii) ...........
70.211(c)(1)(iii) ..........
70.211(c)(1)(iv) ..........
70.211(c)(1)(v) ..........
70.211(c)(1)(vi) ..........
70.211(c)(1)(vii) .........
70.211(c)(1)(viii) ........
70.211(c)(2) ...............
70.211(c)(3) ...............
70.212 .......................
70.212(a) ...................
70.212(b) ...................
70.212(c) ...................
71 ..............................
71.1 ...........................
71.2 ...........................
71.100 .......................
71.100(a) ...................
71.100(b) ...................
71.100(c) ...................
71.100(d) ...................
71.101 .......................
71.101(a) ...................
71.101(b) ...................
71.201 .......................
71.201(a) ...................
71.201(b) ...................
71.201(b)(1) ..............
71.201(b)(2) ..............
71.201(c) ...................
71.201(d) ...................
71.201(e) ...................
71.201(f) ....................
71.201(g) ...................
71.201(h) ...................
71.202 .......................
71.202(a) ...................
71.202(b) ...................
71.202(c) ...................
71.202(d) ...................
71.203 .......................
71.203(a) ...................
71.203(b) ...................
71.203(c) ...................
PO 00000
Frm 00060
Fmt 4701
Existing section
new
70.201(d),new
new
new
70.300, new
new
new
new
70.208(f)
70.209
70.209(a)
70.209(b)
70.209(c), new
70.209(d)
70.209(e)
new
70.210
70.210(a)
70.210(a)(1)
70.210(a)(2), new
70.210(a)(3), new
70.210(a)(4), new
70.210(a)(5)
70.210(a)(6)
70.210(b)
new
new
new (70.210(a)(1))
new (70.210(a)(2))
new (70.210(a)(3))
new
new (70.210(a)(5))
new (70.210(a)(6))
new
new
new
70.210(b), new
70.220
70.220(a), new
70.220(b)
new
71
71.1
71.2, 71.206, new
71.100
71.100
new
new
new
71.101
71.101, new
71.101, new
71.201
71.201(a), new
71.201(b), new
new
new
new
new
71.201(c), new
71.201(e)
new
new
71.202
71.202(a)
71.202(b), new
new
new
71.203
71.203(a)
71.203(b), new
new
Sfmt 4702
DERIVATION TABLE—Continued
Proposed section
71.203(d) ...................
71.204 .......................
71.204(a) ...................
71.204(b) ...................
71.204(c) ...................
71.204(c)(1) ...............
71.204(c)(2) ...............
71.204(c)(3) ...............
71.204(c)(4) ...............
71.204(c)(5) ...............
71.204(d) ...................
71.204(e) ...................
71.205 .......................
71.205(a) ...................
71.205(b) ...................
71.205(b)(1) ..............
71.205(b)(2) ..............
71.205(c) ...................
71.206 .......................
71.207 .......................
71.207(a) ...................
71.207(b) ...................
71.207(c) ...................
71.207(d) ...................
71.207(e) ...................
71.207(f) ....................
71.207(g) ...................
71.207(h) ...................
71.207(h)(1) ..............
71.207(h)(2) ..............
71.207(i) ....................
71.207(j) ....................
71.207(k) ...................
71.207(k)(1) ...............
71.207(k)(2) ...............
71.207(k)(3) ...............
71.207(l) ....................
71.207(m) ..................
71.207(n) ...................
71.207(n)(1) ..............
71.207(n)(2) ..............
71.208 .......................
71.208(a) ...................
71.208(b) ...................
71.208(c) ...................
71.208(d) ...................
71.208(e) ...................
71.208(f) ....................
71.209 .......................
71.209(a) ...................
71.209(a)(1) ..............
71.209(a)(2) ..............
71.209(a)(3) ..............
71.209(a)(4) ..............
71.209(b) ...................
71.209(c) ...................
71.209(c)(1)(i) ...........
71.209(c)(1)(ii) ...........
71.209(c)(1)(iii) ..........
71.209(c)(1)(iv) ..........
71.209(c)(1)(v) ..........
71.209(c)(1)(vi) ..........
71.209(c)(2) ...............
71.210 .......................
71.210(a) ...................
71.210(b) ...................
71.210(c) ...................
71.300 .......................
71.300(a) ...................
71.300(a)(1) ..............
71.300(a)(2) ..............
71.300(a)(3) ..............
E:\FR\FM\19OCP2.SGM
19OCP2
Existing section
new
71.204
71.204(a), new
71.204(b), new
71.204(d), new
71.204(d)(2), new
71.204(d)(3), new
71.204(d)(4), new
71.204(d)(5), new
71.204(d)(1), new
new
71.204(e)
71.205
71.205(a), new
71.205(b), new
71.205(b)
71.205(c)
new
new
71.208, new
71.208(a), new
new
new
71.208(h), new
71.208(g)
71.208(e), new
71.208(f), new
new
71.208(b), new
new
new
71.208(d)
71.201(d), new
new (70.300)
new
71.201(d), new
71.300, new
71.208(c), new
71.208(c), new
71.208(c), new
new
71.209
71.209(a)
71.209(b)
71.209(c), new
71.209(d)
71.209(e)
new
71.210
71.210(a)
71.210(a)(1)
71.210(a)(2)
71.210(a)(3), new
71.210(a)(5)
71.210(b), new
new
new (71.210(a)(1))
new (71.210(a)(2))
new (71.210(a)(3))
new (71.210(a)(5))
new
new
new (71.210(b))
71.220
71.220(a), new
71.220(b)
new
71.300
71.300(a), new
new
new
new
64471
Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
DERIVATION TABLE—Continued
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Proposed section
71.300(a)(4) ..............
71.300(b) ...................
71.301 .......................
71.301(a) ...................
71.301(a)(1) ..............
71.301(a)(2) ..............
71.301(b) ...................
71.301(c) ...................
71.301(d) ...................
71.301(d)(1) ..............
71.301(d)(2) ..............
71.301(d)(3) ..............
71.301(e) ...................
72.100 .......................
72.700 .......................
72.700(a) ...................
72.700(b) ...................
72.700(c) ...................
72.701 .......................
72.800 .......................
75.325(a)(2) ..............
75.332(a)(1) ..............
75.350(b)(3)(i) ...........
75.350(b)(3)(i)(A) ......
75.350(b)(3)(i)(B) ......
75.350(b)(3)(ii) ..........
75.362(a)(2) ..............
75.362(g)(2) ..............
75.362(g)(2)(i) ...........
75.362(g)(2)(ii) ..........
75.362(g)(3) ..............
75.362(g)(4) ..............
75.371(f) ....................
75.371(f)(1) ...............
75.371(f)(2) ...............
75.371(f)(3) ...............
75.371(f)(4) ...............
75.371(j) ....................
75.371(t) ....................
90 ..............................
90.1 ...........................
90.2 ...........................
90.3 ...........................
90.3(a) .......................
90.3(b) .......................
90.3(c) .......................
90.3(d) .......................
90.3(e) .......................
90.3(f) ........................
90.100 .......................
90.100(a) ...................
90.100(b) ...................
90.101 .......................
90.101(a) ...................
90.101(b) ...................
90.102 .......................
90.102(a) ...................
90.102(b) ...................
90.102(c) ...................
90.103 .......................
90.103(a) ...................
90.103(b) ...................
90.103(c) ...................
90.103(d) ...................
90.103(e) ...................
90.103(f) ....................
90.103(g) ...................
90.104 .......................
90.104(a) ...................
90.104(a)(1) ..............
90.104(a)(2) ..............
90.104(a)(3) ..............
VerDate Mar<15>2010
DERIVATION TABLE—Continued
Existing section
new
71.300(b)
71.301
71.301(a)
71.301(a)(1), new
71.301(a)(2)
71.301(b), new
71.301(c)
new
new
new
71.301(d), new
71.301(e)
new
new (70.300)
new (70.300)
new
new
new (70.305)
new
75.325(a)(2), new
75.332(a)(1), new
75.350(b)(3)(i)
75.350(b)(3)(i)
75.350(b)(3)(i), new
75.350(b)(3)(ii), new
75.362(a)(2), new
75.362(g)(2), new
75.362(g)(2), new
new
new
new
75.371(f), new
new
new
new
new
75.371(j), new
75.371(t)
90
90.1, new
90.2, 90.206, new
90.3
90.3(a), new
90.3(b)
90.3(c)
90.3(d), new
90.3(e), new
90.3(f)
90.100
90.100
new
90.101
90.101, new
90.101, new
90.102
90.102(a), new
90.102(b)
90.102(c)
90.103
90.103(a)
90.103(b)
new
90.103(c)
90.103(d)
90.103(e)
90.103(f)
90.104
90.104(a)
90.104(a)(1)
90.104(a)(2), new
90.104(a)(3), new
18:16 Oct 18, 2010
Jkt 223001
Proposed section
90.104(b) ...................
90.104(c) ...................
90.201 .......................
90.201(a) ...................
90.201(b) ...................
90.201(b)(1) ..............
90.201(b)(2) ..............
90.201(c) ...................
90.201(c)(1) ...............
90.201(c)(2) ...............
90.201(c)(3) ...............
90.201(d) ...................
90.201(e) ...................
90.201(f) ....................
90.201(g) ...................
90.201(h) ...................
90.201(i) ....................
90.202 .......................
90.202(a) ...................
90.202(b) ...................
90.202(c) ...................
90.202 (d) ..................
90.203 .......................
90.203(a) ...................
90.203(b) ...................
90.203(c) ...................
90.203(d) ...................
90.204 .......................
90.204(a) ...................
90.204(b) ...................
90.204(c) ...................
90.204(c)(1) ...............
90.204(c)(2) ...............
90.204(c)(3) ...............
90.204(c)(4) ...............
90.204(c)(5) ...............
90.204(d) ...................
90.204(e) ...................
90.205 .......................
90.205(a) ...................
90.205(b) ...................
90.205(b)(1) ..............
90.205(b)(2) ..............
90.205(c) ...................
90.206 .......................
90.207 .......................
90.207(a) ...................
90.207(a)(1) ..............
90.207(a)(2) ..............
90.207(a)(3) ..............
90.208 .......................
90.208(a) ...................
90.208(b) ...................
90.208(b)(1) ..............
90.208(b)(2) ..............
90.208(c) ...................
90.208(d) ...................
90.208(e) ...................
90.208(e)(1) ..............
90.208(e)(2) ..............
90.208(e)(2)(i) ...........
90.208(e)(2)(ii) ..........
90.208(f) ....................
90.208(g) ...................
90.208(g)(1) ..............
90.208(g)(2) ..............
90.208(g)(3) ..............
90.209 .......................
90.209(a) ...................
90.209(b) ...................
90.209(c) ...................
90.209(d) ...................
PO 00000
Frm 00061
Fmt 4701
Existing section
90.104(b)
90.104(c)
90.201, new
90.201(a), new
90.201(b), new
new
new
90.201(f)
90.201(f)(1)
90.201(f)(2)
90.201(f)(3)
new
90.201(e)
new
90.201(c), new
new
new
90.202
90.202(a)
90.202(b), new
new
new
90.203
90.203(a)
90.203(b), new
new
new
90.204
90.204(a), new
90.204(b), new
90.204(d), new
90.204(d)(2), new
90.204(d)(3), new
90.204(d)(4), new
90.204(d)(5), new
90.204(d)(1), new
new
90.204(e)
90.205
90.205(a), new
90.205(b)
90.205(b), 90.205(d)
90.205(c), new
new
new
90.207, new
90.207(a)
90.207(a)(1)
90.207(a)(2), new
90.207(a)(3)
90.208, new
90.208(a), new
new
90.208(b), new
new
new
90.208(c)
90.201(d), new
new (70.300)
new
90.201(d), new
new
new
new
new (70.300)
new
new
new
new
new
new
new
Sfmt 4702
DERIVATION TABLE—Continued
Proposed section
90.209(e) ...................
90.209(e)(1) ..............
90.209(e)(2) ..............
90.209(e)(3) ..............
90.209(e)(4) ..............
90.209(e)(5) ..............
90.209(e)(6) ..............
90.209(f) ....................
90.210 .......................
90.210(a) ...................
90.210(b) ...................
90.210(c) ...................
90.210(d) ...................
90.210(e) ...................
90.210(f) ....................
90.211 .......................
90.211(a) ...................
90.211(a)(1) ..............
90.211(a)(2) ..............
90.211(a)(3) ..............
90.211(a)(4) ..............
90.211(a)(5) ..............
90.211(a)(6) ..............
90.211(a)(7) ..............
90.211(b) ...................
90.211(c) ...................
90.211(c)(1) ...............
90.211(c(1)(i)) ...........
90.211(c)(1)(ii) ...........
90.211(c)(1)(iii) ..........
90.211(c)(1)(iv) ..........
90.211(c)(1)(v) ..........
90.211(c)(1)(vi) ..........
90.211(c)(1)(vii) .........
90.211(c)(1)(viii) ........
90.211(c)(1)(ix) ..........
90.211(c)(2) ...............
90.211(d) ...................
90.212 .......................
90.212(a) ...................
90.212(b) ...................
90.300 .......................
90.300(a) ...................
90.300(b) ...................
90.300(b)(1) ..............
90.300(b)(2) ..............
90.300(b)(3) ..............
90.300(b)(4) ..............
90.301 .......................
90.301(a) ...................
90.301(a)(1) ..............
90.301(a)(2) ..............
90.301(b) ...................
90.301(c) ...................
90.301(d) ...................
90.301(e) ...................
Existing section
90.201(d), new
new (70.300)
90.201(d), new
90.300(a), new
new
new
new
new
90.209
90.209(a)
90.209(b)
90.209(c), new
90.209(d)
90.209(e)
new
90.210
90.210(a)
90.210(a)(1)
90.210(a)(2), new
90.210(a)(3), new
90.210(a)(4), new
90.210(a)(5)
90.210(a)(6)
90.210(a)(7), new
90.210(b)
new
new
90.210(a)(1)
90.210(a)(2), new
90.210(a)(3), new
new
90.210(a)(5)
90.210(a)(6)
90.210(a)(7), new
new
new
new
90.210(b), new
90.220
90.220 new
new
90.300
90.300(a), new
90.300(b)
90.300(b)(1)
90.300(b)(2), new
90.300(b)(3), new
90.300(b)(4)
90.301
90.301(a)
90.301(a)(1), new
90.301(a)(2)
90.301(b), new
90.301(c)
90.301(d)
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
70.1 ...........................
70.2 ...........................
70.100 .......................
E:\FR\FM\19OCP2.SGM
19OCP2
Proposed section
70.1
70.2 (revised)
70.100
64472
Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
DISTRIBUTION TABLE
DISTRIBUTION TABLE
DISTRIBUTION TABLE
Existing section
Proposed section
Existing section
Proposed section
Existing section
Proposed section
70.100(a) ...................
70.100(a)(1)–(a)(4)
(revised)
70.100(b)(1)–(b)(2)
(revised)
70.101(a)–(b) (revised)
70.201 (revised)
70.201(a) (revised)
70.201(e) (revised)
70.201(h) (revised)
70.207(g) (revised),
70.208(f) (revised)
70.202
70.202(a)
70.202(b) (revised)
Removed
70.203
70.203(a)
70.203(b) (revised)
Removed
70.204
70.204(a) (revised)
70.204(b) (revised)
Removed
70.204(c) (revised)
70.204(c)(5) (revised)
70.204(c)(1) (revised)
70.204(c)(2) (revised)
70.204(c)(3) (revised
70.204(c)(4) (revised)
70.204(e)
70.205
70.205(a) (revised)
70.205(b), (b)(1) (revised)
70.205(b)(2) (revised)
70.205(b)(1)
70.2 (revised)
70.207 (revised)
70.207(a) (revised)
70.207(c)(1) (revised)
70.207(f) (revised)
70.207(d) (revised)
70.207(b) (revised)
70.207(b)(1)
70.207(b)(2)
70.207(b)(3)
70.207(b)(4)
70.207(b)(5)
70.207(b)(6)
70.207(b)(7)
70.207(b)(8)
70.207(b)(9)
70.207(b)(10)
70.2 (revised)
(Mechanized mining unit)
70.209 (revised)
70.209(a) (revised)
70.209(b)(1) (revised)
70.209(b)(2) (revised)
70.209(d) (revised)
70.2 (revised) (Designated area)
70.209(h)
70.210
70.210(a)
70.210(b)
70.210(c) (revised)
70.210(d)
70.210(e)
70.211
70.210(a) ...................
70.210(a)(1) ..............
70.210(a)(2) ..............
70.210(a)(3) ..............
70.210(a)(4) ..............
70.210(a)(5) ..............
70.210(a)(6) ..............
70.210(b) ...................
70.220 .......................
70.220(a) ...................
70.220(b) ...................
70.300 .......................
70.305 .......................
71.1 ...........................
71.2 ...........................
71.100 .......................
71.101 .......................
71.201 .......................
71.201(a) ...................
71.201(b) ...................
71.201(c) ...................
71.201(d) ...................
71.201(e) ...................
71.202 .......................
71.202(a) ...................
71.202(b) ...................
71.202(c) ...................
71.203 .......................
71.203(a) ...................
71.203(b) ...................
71.203(c) ...................
71.204 .......................
71.204(a) ...................
71.204(b) ...................
71.204(c) ...................
71.204(d) ...................
71.204(d)(1) ..............
71.204(d)(2) ..............
71.204(d)(3) ..............
71.204(d)(4) ..............
71.204(d)(5) ..............
71.204(e) ...................
71.205 .......................
71.205(a) ...................
71.205(b) ...................
70.211(a) (revised)
70.211(a)(1)
70.211(a)(2) (revised)
70.211(a)(3) (revised)
70.211(a)(4) (revised)
70.211(a)(5)
70.211(a)(6)
70.211(b)
70.212
70.212(a) (revised)
70.212(b)
72.700 (revised)
72.701
71.1
71.2 (revised)
71.100
71.101 (revised)
71.201 (revised)
71.201(a) (revised)
71.201(b) (revised)
71.201(e) (revised)
71.201(k) (revised)
71.201(f) (revised)
71.202
71.201(a)
71.202(b) (revised)
Removed
71.203
71.203(a)
71.203(b) (revised)
Removed
71.204
71.204(a) (revised)
71.204(b) (revised)
Removed
71.204(c) (revised)
71.204(c)(5) (revised)
71.204(c)(1) (revised)
71.204(c)(2) (revised)
71.204(c)(3) (revised)
71.204(c)(4) (revised)
71.204(e)
71.205
71.205(a) (revised)
71.205(b),
71.205(b)(1) (revised)
71.205(b)(2) (revised)
71.2 (revised)
71.207 (revised)
71.207(a) (revised)
71.207(h)(1)
71.207(m)
71.207(j)
71.207(f) (revised)
71.207(g) (revised)
71.207(e)
71.207(d)
71.208
71.208(a)
71.208(b)
71.208(c) (revised)
71.208(d)
71.208(e)
71.209
71.209(a) (revised)
71.209(a)(1)
71.209(a)(2)
71.209(a)(3) (revised)
Removed
71.209(a)(4)
71.209(b) (revised)
71.220 .......................
71.220(a) ...................
71.220(b) ...................
71.300 .......................
71.300(a) ...................
71.300(b) ...................
71.301 .......................
71.301(a) ...................
71.301(a)(1) ..............
71.301(a)(2) ..............
71.301(b) ...................
71.301(c) ...................
71.301(d) ...................
71.301(e) ...................
75.325(a)(2) ..............
75.332(a)(1) ..............
75.350(b)(3)(i) ...........
71.210
71.210(a) (revised)
71.210(b)
71.300
71.300(a) (revised)
71.300(b)
71.301
71.301(a)
71.301(a)(1) (revised)
71.301(a)(2)
71.301(b) (revised)
71.301(c)
71.301(d) (revised)
71.301(e)
75.325(a)(2) (revised)
75.332(a)(1) (revised)
75.350(b)(3)(i) (revised)
75.350(b)(3)(ii) (revised)
75.362(a)(2) (revised)
75.362(g)(2) (revised)
75.371(f) (revised)
75.371(j) (revised)
75.371(t) (revised)
90.1 (revised)
90.2 (revised)
90.3
90.3(a) (revised)
90.3(b)
90.3(c)
90.3(d) (revised)
90.3(e) (revised)
90.3(f)
90.100 (revised)
90.101 (revised)
90.102(a) (revised)
90.102(b)
90.102(c)
90.103(a)
90.103(b)
90.103(d)
90.103(e)
90.103(f)
90.103(g)
90.104
90.104(a)
90.104(a)(1)
90.104(a)(2) (revised)
90.104(a)(3) (revised)
90.104(b)
90.104(c)
90.201 (revised)
90.201(a) (revised)
90.201(b) (revised)
90.201(g) (revised)
90.208(e) (revised),
90.209(e) (revised)
90.201(e)
90.201(c)
90.201(c)(1)
90.201(c)(2)
90.201(c)(3)
90.202
90.202(a)
90.202(b) (revised)
Removed
90.203
90.203(a)
90.203(b) (revised)
Removed
90.204
70.100(b) ...................
70.101 .......................
70.201 .......................
70.201(a) ...................
70.201(b) ...................
70.201(c) ...................
70.201(d) ...................
70.202 .......................
70.202(a) ...................
70.202(b) ...................
70.202(c) ...................
70.203 .......................
70.203(a) ...................
70.203(b) ...................
70.203(c) ...................
70.204 .......................
70.204(a) ...................
70.204(b) ...................
70.204(c) ...................
70.204(d) ...................
70.204(d)(1) ..............
70.204(d)(2) ..............
70.204(d)(3) ..............
70.204(d)(4) ..............
70.204(d)(5) ..............
70.204(e) ...................
70.205 .......................
70.205(a) ...................
70.205(b) ...................
70.205(c) ...................
70.205(d) ...................
70.206 .......................
70.207 .......................
70.207(a) ...................
70.207(b) ...................
70.207(c) ...................
70.207(d) ...................
70.207(e) ...................
70.207(e)(1) ..............
70.207(e)(2) ..............
70.207(e)(3) ..............
70.207(e)(4) ..............
70.207(e)(5) ..............
70.207(e)(6) ..............
70.207(e)(7) ..............
70.207(e)(8) ..............
70.207(e)(9) ..............
70.207(e)(10) ............
70.207(f) ....................
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
70.208 .......................
70.208(a) ...................
70.208(b) ...................
70.208(c) ...................
70.208(d) ...................
70.208(e) ...................
70.208(f) ....................
70.209 .......................
70.209(a) ...................
70.209(b) ...................
70.209(c) ...................
70.209(d) ...................
70.209(e) ...................
70.210 .......................
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71.205(c) ...................
71.206 .......................
71.208 .......................
71.208(a) ...................
71.208(b) ...................
71.208(c) ...................
71.208(d) ...................
71.208(e) ...................
71.208(f) ....................
71.208(g) ...................
71.208(h) ...................
71.209 .......................
71.209(a) ...................
71.209(b) ...................
71.209(c) ...................
71.209(d) ...................
71.209(e) ...................
71.210 .......................
71.210(a) ...................
71.210(a)(1) ..............
71.210(a)(2) ..............
71.210(a)(3) ..............
71.210(a)(4) ..............
71.210(a)(5) ..............
71.210(b) ...................
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75.350(b)(3)(ii) ..........
75.362(a)(2) ..............
75.362(g)(2) ..............
75.371(f) ....................
75.371(j) ....................
75.371(t) ....................
90.1 ...........................
90.2 ...........................
90.3 ...........................
90.3(a) .......................
90.3(b) .......................
90.3(c) .......................
90.3(d) .......................
90.3(e) .......................
90.3(f) ........................
90.100 .......................
90.101 .......................
90.102(a) ...................
90.102(b) ...................
90.102(c) ...................
90.103(a) ...................
90.103(b) ...................
90.103(c) ...................
90.103(d) ...................
90.103(e) ...................
90.103(f) ....................
90.104 .......................
90.104(a) ...................
90.104(a)(1) ..............
90.104(a)(2) ..............
90.104(a)(3) ..............
90.104(b) ...................
90.104(c) ...................
90.201 .......................
90.201(a) ...................
90.201(b) ...................
90.201(c) ...................
90.201(d) ...................
90.201(e) ...................
90.201(f) ....................
90.201(f)(1) ...............
90.201(f)(2) ...............
90.201(f)(3) ...............
90.202 .......................
90.202(a) ...................
90.202(b) ...................
90.202(c) ...................
90.203 .......................
90.203(a) ...................
90.203(b) ...................
90.203(c) ...................
90.204 .......................
E:\FR\FM\19OCP2.SGM
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
DISTRIBUTION TABLE
Existing section
Proposed section
90.204(a) ...................
90.204(b) ...................
90.204(c) ...................
90.204(d) ...................
90.204(d)(1) ..............
90.204(d)(2) ..............
90.204(d)(3) ..............
90.204(d)(4) ..............
90.204(d)(5) ..............
90.204(e) ...................
90.205 .......................
90.205(a) ...................
90.205(b) ...................
90.204(a) (revised)
90.204(b) (revised)
Removed
90.204(c) (revised)
90.204(c)(5) (revised)
90.204(c)(1) (revised)
90.204(c)(2) (revised)
90.204(c)(3) (revised)
90.204(c)(4) (revised)
90.204(e)
90.205
90.205(a) (revised)
90.205(b), (b)(1) (revised)
90.205(b)(2) (revised)
90.205(b)(1)
90.2 (revised)
90.207 (revised)
90.207(a)
90.207(a)(1)
90.207(a)(2) (revised)
90.207(a)(3)
90.208 (revised)
90.208(a) (revised)
90.208(b)(1) (revised)
90.208(d) (revised)
90.210
90.210(a)
90.210(b)
90.210(c) (revised)
90.210(d)
90.210(e)
90.211
90.211(a) (revised)
90.211(a)(1)
90.211(a)(2) (revised)
90.211(a)(3) (revised)
90.211(a)(4) (revised)
90.211(a)(5)
90.211(a)(6)
90.211(a)(7) (revised)
90.211(b)
90.212, 90.212(a) (revised)
90.300
90.300(a) (revised)
90.300(b)
90.300(b)(1)
90.300(b)(2) (revised)
90.300(b)(3) (revised)
90.300(b)(4)
90.301
90.301(a)
90.301(a)(1) (revised)
90.301(a)(2)
90.301(b) (revised)
90.301(c)
90.301(d)
90.301(e)
90.205(c) ...................
90.205(d) ...................
90.206 .......................
90.207 .......................
90.207(a) ...................
90.207(a)(1) ..............
90.207(a)(2) ..............
90.207(a)(3) ..............
90.208 .......................
90.208(a) ...................
90.208(b) ...................
90.208(c) ...................
90.209 .......................
90.209(a) ...................
90.209(b) ...................
90.209(c) ...................
90.209(d) ...................
90.209(e) ...................
90.210 .......................
90.210(a) ...................
90.210(a)(1) ..............
90.210(a)(2) ..............
90.210(a)(3) ..............
90.210(a)(4) ..............
90.210(a)(5) ..............
90.210(a)(6) ..............
90.210(a)(7) ..............
90.210(b) ...................
90.220 .......................
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
90.300 .......................
90.300(a) ...................
90.300(b) ...................
90.300(b)(1) ..............
90.300(b)(2) ..............
90.300(b)(3) ..............
90.300(b)(4) ..............
90.301 .......................
90.301(a) ...................
90.301(a)(1) ..............
90.301(a)(2) ..............
90.301(b) ...................
90.301(c) ...................
90.301(d) ...................
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
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preamble, including the covered mining
industry, costs and benefits, feasibility,
small business impacts, and paperwork.
The PREA can be accessed
electronically at https://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
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64473
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/m3 for most miners
(0.5 mg/m3 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/m3 to 1.0 mg/m3 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
E:\FR\FM\19OCP2.SGM
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64474
Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
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/m3 to 1.0 mg/m3 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/m3 to 1.0 mg/m3 and basing determinations of noncompliance on single samples]
CWP 1+
Number of Cases Prevented Over a 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
CWP 2+
1,301
985
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
Severe
emphysema
PMF
641
Deaths from
NMRD
556
106
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/m3 to 1.0 mg/m3, two changes to the sampling strategy and the revised definition of normal production shift]
CWP 1+
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Number of Cases Prevented Over a 45-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 https://www.msha.gov/rea.htm
and https://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
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CWP 2+
1,606
1,216
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 lifesaving 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
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Sfmt 4702
Severe
emphysema
PMF
791
687
Deaths from
NMRD
131
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 nonfatal 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
E:\FR\FM\19OCP2.SGM
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
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 (nearmonopsony or monopsony) that may
depress wages below those in a more
competitive labor market.
64475
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]
CWP 1+
CWP 2+
PMF
Severe
emphysema
Deaths from
NMRD
Total
Benefits Based Upon Table VII–1 (i.e., Based on 2010 QRA)
Underground and Part 90 Miners ............
Surface Miners .........................................
66
14
51
10
2,815
454
2,198
638
653
270
5,783
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 ............
Surface Miners .........................................
Total ..................................................
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
1Estimate
82
18
100
63
12
75
3,467
567
4,034
2,707
797
3,504
804
337
1,141
7,123
1,731
8,854
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
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percent discount rate, consistent with
OMB’s Circular A–4.
C. Compliance Costs
This section presents MSHA’s
estimates of costs that would be
TABLE VII–4—ANNUALIZED BENEFITS incurred by underground and surface
[Millions of 2009 dollars]
coal operators to comply with the
proposed coal mine dust rule. These
7% Discount rate,
costs are based on the assessment of
Distribution
45 years
MSHA staff of the most likely actions
assumptions
2 provisions 4 provisions that would be necessary to comply with
the proposed rule. MSHA acknowledges
that in rare instances, after taking these
Immediate, evenly distributed
projected actions, some mine operators
Underground/
may need to take additional measures to
Part 90 ..........
$128.5
$158.3 comply. In order to illustrate the full
Surface .............
30.8
38.5
range of possible compliance costs, this
Total ..............
159.3
196.8 section also includes a discussion of
three potential situations where some
operators could incur additional costs.
10-year latency, evenly distributed
All three of the following situations are
Underground/
in underground coal mines: (1)
Part 90 ..........
79.9
98.5 Longwall mines that have two entries;
Surface .............
19.2
24.0 (2) mines that have multiple MMUs on
Total ..............
99.1
122.4 a single split of air; and (3) mines
operating under reduced respirable coal
dust standards below 1.0 mg/m3 due to
The analysis numbers presented in
the presence of quartz.
Table VII–4 might be viewed as
MSHA presents two values for the
incomplete estimates because they do
engineering and work practice estimates
not include the potential impacts of
and the total cost estimates for
other provisions of the proposed rule. In underground coal mines. The lower
addition, MSHA’s estimates are based
value represents MSHA’s most likely
on a series of simplifying assumptions.
estimate. The higher value includes
The impact of these assumptions on the additional costs for those rare instances
total benefits depends on the degree of
where some operators after taking these
the mismatch between the assumption
actions may encounter implementation
and reality. Unfortunately, MSHA does
issues as they attempt to comply with
not have the data to quantify this
the proposed requirements and need to
uncertainty. However, the impact of
take additional measures to comply
assumptions about the timing of the
with the proposed standard.
benefits probably has the most
MSHA estimates that the first year
significant impact on the estimated
cost of the proposed rule would be
monetized benefits.
approximately $72.4 to $93.2 million
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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]
Distribution
assumptions
2 provisions
4 provisions
Immediate, evenly distributed
Underground/
Part 90 ..........
Surface .............
$128.5
30.8
$158.3
38.5
Total ...........
159.3
196.8
10-year latency, evenly distributed
Underground/
Part 90 ..........
Surface .............
Total ...........
79.9
19.2
99.1
98.5
24.0
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 ...................................................................................
Surface Operators ...........................................................................................
Total ..........................................................................................................
$1.6
1.1
2.7
$29.6
3.3
32.9
$35.6
0.4
4.8
4.8
40.4
5.6
0.4
6.0
39.7
4.8
44.5
Most Likely Estimated Costs plus Additional Costs for Rare Situations
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Underground Operators ...................................................................................
Surface Operators ...........................................................................................
Total ..........................................................................................................
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
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1.6
1.1
2.7
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
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32.5
3.3
35.8
broad range of independent
assumptions.
VIII. Feasibility
Although MSHA has concluded that
the requirements of the proposed rule
would be both technologically and
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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 fullshift 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 phasein 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
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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 12month 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
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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
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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
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
2 U.S. DOE, EIA, ‘‘Annual Coal Report 2009,’’
Table 28, October 2009.
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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.
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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).
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).
72.100(d), (e).
72.700(c).
75.362(a)(2), (g)(2)(ii), (g)(3),
(g)(4).
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).
Part 71 .....
Part 72 .....
Part 75 .....
Part 90 .....
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 https://
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. § 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
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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.
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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
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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 § 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.
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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
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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/m3
would not, according to Table 70–1,
indicate noncompliance with sufficient
confidence to warrant a citation if the
applicable standard S = 2.0 mg/m3. This
does not imply that the mine
atmosphere was in compliance on the
shift and at the location sampled. On
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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/m3 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/
m3, then a valid measurement of 1.65
mg/m3 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 μi. Because
of potential measurement errors, μi can
never be known with complete
certainty. A ‘‘sample,’’ ‘‘measurement,’’
or ‘‘observation’’ always refers to an
instance of Xi rather than μi.
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The overall measurement error
associated with an individual
measurement is the difference between
the measurement (Xi) and the quantity
being measured (μi). Therefore, this
error can be represented as
ei = Xi¥μi.
Equivalently, any measurement can
be regarded as the true concentration in
the atmosphere sampled, with a
measurement error added on:
Xi = μi + e i
For two different measurements (X1
and X2), it follows that X1 may differ
from X2 not only because of the
combined effects of e1 and e2, but also
because μ1 differs from μ2.
The probability distribution of Xi
around μi depends only on the
probability distribution of ei and should
not be confused with the statistical
distribution of μi, which arises from
spatial and/or temporal variability in
dust concentration. This variability [i.e.,
among μi 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 μi. 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 (ei) 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 ei 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 eighthour sample. Since the eight-hour
period can be subdivided into an
arbitrarily large number of sub-intervals,
and some fraction of ei is associated
with each sub-interval, ei can be
represented as comprising the sum of an
arbitrarily large number of sub-interval
E:\FR\FM\19OCP2.SGM
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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
μi, 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 ei is equally likely to be
positive or negative and, on average,
equal to zero.
Therefore, each ei is assumed to be
normally distributed, with a mean value
of zero and a degree of variability
represented by its standard deviation:
´
oi = ii × CVtotal.
Since Xi = μi + ei, it follows that for
a given value of μi, Xi is normally
distributed with expected value equal to
μi and standard deviation equal to si.
CVtotal, is the coefficient of variation in
measurements corresponding to a given
value of μi. 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 μi ≤ S. Max{μi} denotes the
maximum dust concentration, among all
of the sampling locations within an
MMU. Therefore, if Max{μi} ≤ 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{μi} ≤ S. In other areas,
where only one, full-shift measurement
is made, the null hypothesis is simply
that μi ≤ S.
64483
The test consists of evaluating the
likelihood of measurements under the
assumption that H0 is true. Since Xi =
μi + ei, Xi (or max{Xi} 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 μi > 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:
2
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2
⎛ 0.14 ⎞
2
2
’
o = S⋅ ⎜
⎟ + (.05) + (.05)
S ⎠
⎝
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·s
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/m3.
For example, at a dust concentration
(μi) just meeting the applicable dust
standard of S = 2 mg/m3, CVECV is 9.95
percent. Therefore, the calculated value
of c is 2.326 and the ECV is 2.33 mg/
m3. 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.
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The probability that a measurement
exceeds the ECV is even smaller if μi <
S for any I. Furthermore, to the extent
that CVtotal is actually less than CVECV,
s is actually less than S·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 μi >
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 ei will be
large enough to force Xi ≥ ECV when μi
≤ S is greater than the probability when
only a single comparison is made. For
example (still assuming S = 2 mg/m3),
if CVtotal is actually 6.6%, then the
standard deviation of ei is 6.6% of 2.0
mg/m3, or 0.132 mg/m3, when μi = S.
Using properties of the normal
E:\FR\FM\19OCP2.SGM
19OCP2
EP19OC10.004</MATH>
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 (μi).
The situation in which measurement
error is most likely to cause an
erroneous noncompliance
determination is the hypothetical case
of μi = 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 s used in constructing the ECV
tables is the product of S and CVECV
evaluated for a dust concentration equal
to S:
£ CVCTV
EP19OC10.003</MATH>
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
CVtotal
⎛ 0.14 mg/m3
⎞
= ⎜
× 100% ⎟ + (5%)2 + (5%)2
⎜ μ mg /m3
⎟
⎝ i
⎠
64484
Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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
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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 × 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/m3
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/m3 [1.5 × 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/m3.
Therefore, the ECV corresponding to the
applicable standard of 1.5 mg/m3 is 1.70
mg/m3. 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
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Coal, Mine safety and health.
Frm 00074
Fmt 4701
Sfmt 4702
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:
§ 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 § 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:
§ 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.
E:\FR\FM\19OCP2.SGM
19OCP2
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
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/m3), 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 MREequivalent 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 endof-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 § 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.
*
*
*
*
*
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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/m3, accumulated by an
occupation during a work week (Sunday
thru Saturday), determined by
multiplying the daily individual end-ofshift 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/m3, 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.
§ 70.100
Respirable dust standards.
(a) Each operator shall continuously
maintain the average concentration of
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64485
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/m3).
(2) 1.7 mg/m3 as of [date 6 months
after the effective date of the final rule].
(3) 1.5 mg/m3 as of [date 12 months
after the effective date of the final rule].
(4) 1.0 mg/m3 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/m3.
(2) 0.5 mg/m3 as of [date 6 months
after the effective date of the final rule].
§ 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/m3 (100 micrograms per cubic meter
or μg/m3) as measured with an approved
sampling device and in terms of an
equivalent concentration.
(b) When the concentration of
respirable quartz dust exceeds 100 μg/
m3, 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
§ 70.100(a).
Example: Assume the sampled MMU or DA
is on a 1.0-mg/m3 dust standard. Suppose a
valid respirable dust sample with an
equivalent concentration of 1.0 mg/m3
contains 12.3% of quartz dust, which
corresponds to a quartz concentration of 123
μg/m3. 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/
m3 (10/12.3% = 0.8 mg/m3).
5. Subpart C is revised to read as
follows:
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules
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.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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
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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
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(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.
§ 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
§ 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.
§ 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.
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§ 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
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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-byreference. This incorporation-byreference 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: https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
§ 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
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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.
§ 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;
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(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.
§ 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
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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.
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(c) When the respirable dust standard
is changed in accordance with § 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/m3 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 § 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
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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 § 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
§ 75.363 of this chapter.
TABLE 70–1—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE-SHIFT CMDPSU EQUIVALENT
CONCENTRATION MEASUREMENTS
Applicable standard
(mg/m3)
2.0
1.9
1.8
1.7
1.6
1.5
1.4
1.3
1.2
1.1
1.0
0.9
0.8
0.7
0.6
0.5
0.4
0.3
0.2
ECV
(mg/m3)
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
2.33
2.22
2.12
2.01
1.90
1.79
1.69
1.59
1.47
1.37
1.26
1.16
1.05
0.95
0.85
0.74
0.65
0.54
0.44
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§ 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
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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 § 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.
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(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 § 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 § 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 § 72.700 of this
chapter;
(2) Implement corrective actions to
assure compliance with the applicable
standard on the next and subsequent
production shifts;
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(3) Record the reported excessive dust
condition as part of and in the same
manner as the records for hazardous
conditions required by § 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
Applicable Standard
(mg/m3)
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2.0
1.9
1.8
1.7
1.6
1.5
1.4
1.3
1.2
1.1
1.0
0.9
0.8
0.7
0.6
0.5
0.4
0.3
0.2
ECV
(mg/m3)
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
2.26
2.15
2.04
1.92
1.81
1.70
1.59
1.47
1.36
1.25
1.13
1.02
0.91
0.80
0.68
0.57
0.46
0.34
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
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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.
§ 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 § 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:
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(1) Make approved respiratory
equipment available to affected miners
in accordance with § 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 § 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 § 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
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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.
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§ 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
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to MSHA shall be maintained by the
operator for at least 12 months.
§ 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.
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§ 70.212
64491
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.
§§ 70.300 and 70.305 [Redesignated as
§§ 72.700 and 72.701]
6. Sections 70.300 and 70.305 are
redesignated as §§ 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:
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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:
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§ 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/m3), 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
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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 MREequivalent 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 endof-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.
§ 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/m3).
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(b) 1.7 mg/m3 as of [date 6 months
after the effective date of the final rule].
(c) 1.5 mg/m3 as of [date 12 months
after the effective date of the final rule].
(d) 1.0 mg/m3 as of [date 24 months
after the effective date of the final rule].
§ 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/m3 (100 micrograms per cubic meter
or μg/m3) as measured with an approved
sampling device and in terms of an
equivalent concentration.
(b) When the concentration of
respirable quartz dust exceeds 100 μg/
m3, 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
§ 71.100(a) of this section.
Example: Assume the sampled DWP is on
a 2.0-mg/m3 dust standard. Suppose a valid
representative dust sample with an
equivalent concentration of 1.0 mg/
m3contains 16.7% of quartz dust, which
corresponds to a quartz concentration of 167
μg/m3. 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/
m3 (10/16.7% = 0.6 mg/m3).
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.
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§ 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 § 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
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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.
§ 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
§ 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.
§ 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
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64493
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.
§ 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
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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-byreference. This incorporation-byreference 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: https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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.
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(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.
§ 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
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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.
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§ 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 § 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/m3 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;
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(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 § 71.101 is below the
respirable dust standard under § 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 § 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.
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TABLE 71–1—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE-SHIFT CMDPSU EQUIVALENT
CONCENTRATION MEASUREMENTS
Applicable standard
(mg/m3)
2.0
1.9
1.8
1.7
1.6
1.5
1.4
1.3
1.2
1.1
1.0
0.9
0.8
0.7
0.6
0.5
0.4
0.3
0.2
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
ECV
(mg/m3)
2.33
2.22
2.12
2.01
1.90
1.79
1.69
1.59
1.47
1.37
1.26
1.16
1.05
0.95
0.85
0.74
0.65
0.54
0.44
TABLE 71–2—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE-SHIFT CPDM EQUIVALENT CONCENTRATION MEASUREMENTS
Applicable standard
(mg/m3)
2.0
1.9
1.8
1.7
1.6
1.5
1.4
1.3
1.2
1.1
1.0
0.9
0.8
0.7
0.6
0.5
0.4
0.3
0.2
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
ECV
(mg/m3)
2.26
2.15
2.04
1.92
1.81
1.70
1.59
1.47
1.36
1.25
1.13
1.02
0.91
0.80
0.68
0.57
0.46
0.34
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 § 72.700 of this
chapter;
(2) Submit to the District Manager for
approval proposed corrective actions to
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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 § 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
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(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.
§ 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
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maintained by the operator for at least
12 months.
§ 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.
§ 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.
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(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.
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§ 71.300 Respirable dust control plan;
filing requirements.
(a) As required by § 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
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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.
§ 71.301 Respirable dust control plan;
approval by District Manager and posting.
(a) The District Manager will approve
respirable dust control plans on a mineby-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;
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(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
§ 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
§ 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
§ 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 § 72.100(a)
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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 § 72.100(a).
15. Add § 72.700 to subpart E of part
72 to read as follows:
(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 § 72.701 to subpart E of part
72 to read as follows:
§ 72.701 Respiratory equipment; gas,
dusts, fumes, or mists.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 72.800 Single, full-shift measurement of
respirable coal mine dust.
The Secretary may use a single, fullshift 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.
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Authority: 30 U.S.C. 811, 813(h), and 957.
19. Amend § 75.325 by revising
paragraph (a)(2) to read as follows:
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 § 75.332 by revising
paragraph (a)(1) to read as follows:
§ 75.332
places.
Working sections and working
(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 § 75.350 by revising
paragraph (b)(3)(i) and (ii) to read as
follows:
§ 75.350
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 § 72.800 to subpart E of part
72 to read as follows:
18:16 Oct 18, 2010
18. The authority citation for part 75
is revised to read as follows:
§ 75.325
§ 72.700 Respiratory equipment;
respirable dust.
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PART 75—MANDATORY SAFETY
STANDARDS—UNDERGROUND COAL
MINES
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/m3
(B) 0.5 mg/m3 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 § 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 § 75.362 by revising
paragraphs (a)(2) and (g)(2) and adding
paragraphs (g)(3) and (g)(4) to read as
follows:
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§ 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
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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 § 75.371 by revising
paragraphs (f), (j) and (t) to read as
follows:
§ 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 § 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 § 70.209 of this chapter).
*
*
*
*
*
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
*
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:
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§ 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 § 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 § 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:
§ 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/m3), 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
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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 MREequivalent 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 endof-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 § 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 § 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
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(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/m3, 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-ofshift 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/m3, 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:
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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.
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(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.
§ 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/m3).
(b) 0.5 mg/m3 as of [date 6 months
after the effective date of the final rule].
§ 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
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mg/m3 (100 micrograms per cubic meter
or μg/m3) 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 μg/m3 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/m3 dust standard. Suppose a valid
respirable dust sample with an equivalent
concentration of 0.5 mg/m3 contains 25.6%
of quartz dust, which corresponds to a quartz
concentration of 128 μg/m3. 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/m3 (10/25.6% = 0.4
mg/m3).
§ 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
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District Manager written notice before
any transfer of a part 90 miner. This
notice shall include the scheduled date
of the transfer.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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 § 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 § 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
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before exercising the option under
§ 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.
§ 90.104
option.
Waiver of rights; re-exercise of
(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 §§ 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 § 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
§ 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.
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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.
§ 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
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(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.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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
§ 90.203(b) are not permitted to collect
respirable dust samples required by this
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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.
§ 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.
§ 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
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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-byreference. This incorporation-byreference 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: https://www.archives.gov/
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federal_register/
code_of_federal_regulations/
ibr_locations.html.
§ 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.
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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
§§ 90.300 and 90.301 of this chapter.
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(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.
§ 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 § 90.100;
(2) Receipt of notification from MSHA
that any respirable dust sample taken in
accordance with § 90.208 exceeds the
applicable standard.
(3) Implementing any transfer after
the 20th calendar day following receipt
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of notification from MSHA that a part 90
miner is employed at the mine.
§ 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 § 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 § 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
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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 § 90.102 and
then sample the affected miner in
accordance with § 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 § 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 § 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
§ 75.363 of this chapter.
TABLE 90–1—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE-SHIFT CMDPSU EQUIVALENT
CONCENTRATION MEASUREMENTS
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Applicable standard
(mg/m3)
1.0
0.9
0.8
0.7
0.6
0.5
0.4
0.3
0.2
ECV
(mg/m3)
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
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1.26
1.16
1.05
0.95
0.85
0.74
0.65
0.54
0.44
§ 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 § 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 § 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
§ 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 § 75.363 of this
chapter. The record shall include:
(i) Dates of sampling;
(ii) Lengths of sampled shifts;
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(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 § 90.102(c) and then
sample the affected miner in accordance
with § 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 § 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 § 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
Applicable standard
(mg/m3)
1.0 .................................................
0.9 .................................................
0.8 .................................................
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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
ECV
CPDM. All CPDM data files transmitted
(mg/m3)
to MSHA shall be maintained by the
0.80 operator for at least 12 months.
TABLE 90–2—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE–SHIFT
CPDM
EQUIVALENT
CONCENTRATION MEASUREMENTS—
Continued
Applicable standard
(mg/m3)
0.7
0.6
0.5
0.4
0.3
0.2
.................................................
.................................................
.................................................
.................................................
.................................................
.................................................
0.68
0.57
0.46
0.34
0.23
jlentini on DSKJ8SOYB1PROD with PROPOSALS2
§ 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
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§ 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 endof-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),
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64505
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.
§ 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.
§ 90.300 Respirable dust control plan;
filing requirements.
(a) As required by § 90.208(f) and
§ 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;
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(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.
§ 90.301 Respirable dust control plan;
approval by District Manager; copy to part
90 miner.
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(a) The District Manager will approve
respirable dust control plans on a mine-
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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.
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(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
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]]>Agencies
[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Proposed Rules]
[Pages 64412-64506]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25249]
[[Page 64411]]
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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
[[Page 64412]]
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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.
-----------------------------------------------------------------------
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: https://www.regulations.gov. Follow
the instructions for submitting comments.
(2) Electronic mail: zzMSHA-comments@dol.gov. 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-
Comments@dol.gov, 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
Silvey.Patricia@dol.gov (Internet E-mail), (202) 693-9440 (voice), or
(202) 693-9441 (facsimile).
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Availability of Information
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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 https://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 https://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 existi
