[Federal Register Volume 76, Number 45 (Tuesday, March 8, 2011)]
[Proposed Rules]
[Pages 12648-12651]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5127]


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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; request for comment.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is requesting 
comments on the proposed rule published in the Federal Register on 
October 19, 2010, addressing Lowering Miners' Exposure to Respirable 
Coal Mine Dust, Including Continuous Personal Dust Monitors. The 
proposed rule would improve health protections for 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 or postmarked by midnight Eastern 
Daylight Saving Time on May 2, 2011.

ADDRESSES: Comments must be identified with ``RIN 1219-AB64'' and may 
be sent by any of the following methods:
    (1) Federal e-Rulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) Electronic mail: 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.
    MSHA will post all comments on the Internet without change, 
including any personal information provided. Comments can be accessed 
electronically at http://www.msha.gov under the ``Rules & Regs'' link. 
Comments may also be reviewed in person 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 will accept written comments and other appropriate information 
for the record from any interested party. All comments must be received 
or postmarked by midnight Eastern Daylight Saving Time on May 2, 2011.
    MSHA maintains a list that enables subscribers to receive e-mail 
notification when the Agency publishes rulemaking documents in the 
Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

FOR FURTHER INFORMATION CONTACT: April E. Nelson, Acting Director, 
Office of Standards, Regulations, and Variances, MSHA, at 
nelson.april@dol.gov (e-mail); 202-693-9440 (voice); or 202-693-9441 
(facsimile).

SUPPLEMENTARY INFORMATION:

I. Public Hearings

    On October 19, 2010 (75 FR 64412), MSHA published a proposed rule, 
Lowering Miners' Exposure to Respirable Coal Mine Dust, Including 
Continuous Personal Dust Monitors. On February 15, 2011, MSHA concluded 
the last of seven public hearings on the proposed rule. Hearings were 
held on December 7, 2010, January 11, 13, and 25, 2011, and February 8, 
10, and 15, 2011, in Beckley, West Virginia;

[[Page 12649]]

Evansville, Indiana; Birmingham, Alabama; Salt Lake City, Utah; 
Washington, PA; Prestonsburg, Kentucky; and Arlington, VA. Verbatim 
transcripts of the hearings will be part of the rulemaking record. 
Transcripts will be available to the public on MSHA's Web site at 
http://www.msha.gov under the ``Rules & Regs'' link.

II. Request for Comments

    The key provisions of the proposed rule would lower the existing 
concentration limits for respirable coal mine dust, provide for full-
shift sampling, redefine the term ``normal production shift,'' provide 
for use of single shift compliance sampling under the mine operator and 
MSHA's inspector sampling programs, establish sampling requirements for 
use of the Continuous Personal Dust Monitor (CPDM), and expand 
requirements for medical surveillance. The proposed rule is available 
on MSHA's Web site at http://www.msha.gov/REGS/FEDREG/PROPOSED/2010Prop/2010-25249.pdf.
    In developing the proposed rule, MSHA relied on the NIOSH Criteria 
Document (Criteria for a Recommended Standard: Occupational Exposure to 
Respirable Coal Mine Dust (September 1995)), the Secretary of Labor's 
Advisory Committee (Report of the Secretary of Labor's Advisory 
Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers 
(October 1996)), MSHA'S Quantitative Risk Assessment (QRA), studies in 
the Health Effects section of the proposed rule, and information and 
data included in the Preliminary Regulatory Economic Analysis (PREA) in 
support of the proposal.
    MSHA solicits comments on all aspects of the proposed rule and 
encourages the mining community to review the proposal, including the 
preamble to the proposed rule, the QRA, and the PREA. The QRA and the 
PREA are available on MSHA's Web site at http://www.msha.gov/regsqra.asp and http://www.msha.gov/rea.htm, respectively.
    As MSHA has stated throughout the rulemaking, the Agency is 
interested in information on (1) requests for comments and information 
that were included in the preamble to the proposed rule, and (2) issues 
that developed from the proposed rule which were raised during the 
public hearings. The Agency requests that comments and any alternatives 
suggested be as specific as possible, and include any technological and 
economic feasibility data, detailed rationale and supporting 
documentation, and health benefits to coal miners. Specific and 
complete information submitted by commenters will enable MSHA to better 
evaluate the provisions of the proposed rule and produce a final rule 
that responds to the needs and concerns of the mining community.
    1. The proposed rule presents an integrated comprehensive approach 
for lowering miners' exposure to respirable coal mine dust. The Agency 
is interested in alternatives to the proposal which would be effective 
in reducing miners' respirable dust exposure and invites comments on 
any alternatives.
    2. MSHA solicits comments on the proposed respirable dust 
concentration limits. Please provide alternatives to the proposed 
limits to be considered in developing the final rule, including 
specific suggested limits and your rationale.
    3. The proposed rule bases the proposed respirable dust standards 
on an 8-hour work shift and a 40-hour workweek. In its 1995 Criteria 
Document on Occupational Exposure to Respirable Coal Mine Dust, the 
National Institute for Occupational Safety and Health (NIOSH) 
recommended lowering exposure to 1.0 mg/m\3\ for each miner for up to a 
10-hour work shift during a 40-hour workweek. MSHA solicits comments on 
the NIOSH recommendation.
    4. MSHA included the proposed phase-in periods for the proposed 
lower respirable dust standards to provide sufficient time for mine 
operators to implement or upgrade engineering or environmental 
controls. MSHA solicits comments on alternative timeframes and factors 
that the Agency should consider. Please include any information and 
detailed rationale.
    5. In the proposal, MSHA also plans to phase in the use of 
Continuous Personal Dust Monitors (CPDMs) to sample production areas of 
underground mines and Part 90 miners. MSHA solicits comments on the 
proposed phasing in of CPDMs, including time periods and any 
information with respect to their availability. If shorter or longer 
timeframes are recommended, please provide the rationale.
    6. MSHA has received a number of comments about the use of the 
CPDM. For operators who have used this device, MSHA is interested in 
receiving information related to its use. For example, MSHA is 
interested in information related to the durability of the unit, 
whether and how often the unit had to be repaired, type of repair, cost 
of repair, whether the repair was covered under warranty, how long the 
unit was unavailable, and any additional relevant information.
    7. MSHA understands that some work shifts are longer than 12 hours, 
and that dust sampling devices generally last for approximately 12 
hours. MSHA solicits comments on appropriate timeframes to switch out 
sampling devices, Coal Mine Dust Personal Sampler Units (CMDPSUs, i.e., 
gravimetric samplers) or CPDMs, to ensure continued operation and 
uninterrupted protection for miners for the entire shift.
    8. The proposed single sample provision is based on improvements in 
sampling technology, MSHA experience, updated data, and comments and 
testimony from earlier notices and proposals that addressed the 
accuracy of single sample measurements. The Agency is particularly 
interested in comments on new information added to the record since 
October 2003 concerning MSHA's Quantitative Risk Assessment, 
technological and economic feasibility, compliance costs, and benefits.
    9. MSHA is interested in commenters' views on what actions should 
be taken by MSHA and the mine operator when a single shift respirable 
dust sample meets or exceeds the Excessive Concentration Value (ECV). 
In this situation, if operators use a CPDM, what alternative actions to 
those contained in the proposed rule would you suggest that MSHA and 
the operator take? MSHA is particularly interested in alternatives to 
those in the proposal and how such alternatives would be protective of 
miners.
    10. A commenter at a public hearing requested clarification on 
whether there would be more than one violation of the respirable dust 
limit if a single, full-shift sample exceeded the ECV during the same 
week that the weekly permissible accumulated exposure (WPAE) limit were 
exceeded. Under the proposed rule, it would be a violation for each 
occurrence that the ECV or WPAE is exceeded. MSHA is interested in 
comments and alternatives to the proposed rule. Comments should be 
specific, and include a detailed rationale and how any recommendations 
and alternatives would protect miners.
    11. The proposal includes a revised definition of normal production 
shift so that sampling is taken during shifts that reasonably represent 
typical production and normal mining conditions on the MMU. The Agency 
requests comments on whether the average of the most recent 30 
production shifts specified in the proposed definition would be 
representative of dust levels to which miners are typically exposed.

[[Page 12650]]

    12. The proposed sampling provisions address interim use of 
supplementary controls when all feasible engineering or environmental 
controls have been used but the mine operator is unable to maintain 
compliance with the dust standard. With MSHA approval, operators could 
use supplementary controls, such as rotation of miners, or alteration 
of mining or of production schedules, in conjunction with CPDMs to 
monitor miners' exposures. MSHA solicits comments on this proposed 
approach and any suggested alternatives, as well as the types of 
supplementary controls that would be appropriate to use on a short-term 
basis.
    13. The proposed rule addresses (1) which occupations must be 
sampled using CPDMs, and (2) which work positions and areas could be 
sampled using either CPDMs or CMDPSUs. MSHA solicits comments on the 
proposed sampling occupations and locations. For example, please 
comment on whether there are other positions or areas where it may be 
appropriate to require the use of CPDMs. Also, comment on whether the 
proposed CPDM sampling of ODOs on the MMU is sufficient to address 
different mining techniques, potential overexposures, and ineffective 
use of approved dust controls.
    14. Some commenters have suggested that, for compliance purposes, 
respirable dust samples should be taken only on individual miners in 
underground coal mines. Under the existing rule, MSHA enforces an 
environmental standard, that is, the Agency samples the average 
concentration of respirable dust in the mine atmosphere. The proposed 
rule would continue the existing practice that samples be collected 
from designated high-risk occupations associated with respirable dust 
exposure and from designated areas associated with dust generation 
sources in underground mines. MSHA solicits comments on the sampling 
strategy in the proposed rule, any specific alternatives, supporting 
rationale, and how such alternatives would protect miners' health.
    15. The proposed rule addresses the frequency of respirable dust 
sampling when using a CPDM. MSHA solicits comments on the proposed 
sampling frequencies and any suggested alternatives. For example, if 
sampling of DOs were less frequent than proposed, what alternative 
sampling frequency would be appropriate? Please address a sampling 
strategy in case of noncompliance with the respirable dust standard and 
provide rationale. Also, should CPDM sampling of ODOs be more or less 
frequent than 14 calendar days each quarter? Please be specific in 
suggesting alternatives and include supporting rationale.
    16. The proposal would require that persons certified in dust 
sampling or maintenance and calibration retake the applicable MSHA 
examination every 3 years to maintain certification. Under the 
proposal, these certified persons would not have to retake the proposed 
MSHA course of instruction. MSHA solicits comments on this approach to 
certification; please include specific rationale for any suggested 
alternatives.
    17. In the proposal, MSHA would require that the CPDM daily sample 
and error data file information be submitted electronically to the 
Agency on a weekly basis. MSHA solicits comments on suggested 
alternative timeframes, particularly in light of the CPDM's limited 
memory capacity of about 20 shifts.
    18. The proposal contains requirements for posting information on 
sampling results and miners' exposures on the mine bulletin board. MSHA 
solicits comments on the lengths of time proposed for posting data. If 
a standard format for reporting and posting data were developed, what 
should it include?
    19. The periodic medical surveillance provisions in the proposed 
rule would require operators to provide an initial examination to each 
miner who begins work at a coal mine for the first time and then at 
least one follow-up examination after the initial examination. MSHA 
solicits comments on the proposed requirements and time periods 
specified for these examinations.
    20. The proposed respirator training requirements are performance-
based and the time required for respirator training would be in 
addition to that required under part 48. Under the proposal, mine 
operators could, however, integrate respirator training into their part 
48 training schedules. The proposal would require that operators keep 
records of training for 2 years. Please comment on the Agency's 
proposed approach.
    21. The proposed rule specifies procedures and information to be 
included in CPDM plans to ensure miners are not exposed to respirable 
dust concentrations that exceed proposed standards. For example, the 
proposed plan would include pre-operational examination, testing and 
set-up procedures to verify the operational readiness of the CPDM 
before each shift. It would also include procedures for scheduled 
maintenance, downloading and transmission of sampling information, and 
posting of reported results. Please comment on the proposed plan 
provisions and include supporting rationale.
    22. MSHA has received comments that some aspects of the proposed 
rule may not be feasible for particular mining applications. MSHA is 
interested in receiving comments on the specific mining methods that 
may be impacted and alternative technologies and controls that would 
protect miners.
    23. MSHA has received comments on proposed section 75.332(a)(1) 
concerning the use of ``fishtail'' ventilation to provide intake air to 
multiple MMUs. Commenters were concerned that, under the proposed rule, 
the practice of using fishtail ventilation with temporary ventilation 
controls would not be allowed. MSHA solicits comments on any specific 
impact of the proposed rule on current mining operations, any suggested 
alternatives, and how the alternatives would be protective of miners.
    24. The Agency has prepared a PREA, which contains supporting cost 
and benefit data for the proposed rule. MSHA has included a discussion 
of the costs and benefits in the preamble. MSHA requests comments on 
all estimates of costs and benefits presented in the preamble and the 
PREA, including compliance costs, net benefits, and approaches used and 
assumptions made in the PREA. The PREA is available on MSHA's Web site 
at http://www.msha.gov/rea.htm.
    25. Commenters have discussed epidemiological studies and data on 
coal mine dust exposure presented in the preamble to the proposed rule. 
MSHA solicits comments regarding studies and data, and requests that 
commenters be as specific as possible. Please identify the studies and 
data commented upon, provide detailed rationales for the comments, and 
include any relevant information and data that will help MSHA evaluate 
the comments.
    26. MSHA has received comments that the proposed rule should not 
require mine operators to record corrective actions or excessive dust 
concentrations as section 75.363 hazardous conditions. MSHA would like 
to clarify that the proposal would require that operators record both 
excessive dust concentrations and corrective actions in the same manner 
as conditions are recorded under section 75.363. However, MSHA would 
not consider excessive dust concentrations or corrective actions to be 
hazardous conditions, since the proposed requirement is not a section 
75.363 required record.

[[Page 12651]]

    27. A commenter at the first public hearing suggested that the 
timeframe for miners' review of the CPDM Performance Plan be expanded. 
For clarification, in developing the proposed rule, MSHA relied on the 
timeframe and process in the existing requirements for mine ventilation 
plans. In the proposal, MSHA did not intend to change the existing 
timeframe and process and stated that the proposed rule is consistent 
with ventilation plan requirements and would allow miners' 
representatives the opportunity to meaningfully participate in the 
process.

    Dated: March 2, 2011.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 2011-5127 Filed 3-7-11; 8:45 am]
BILLING CODE 4510-43-P