Lowering Miners' Exposure to Respirable Coal Mine Dust, Including Continuous Personal Dust Monitors

Federal RegisterOct 19, 2010

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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: 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.

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).

SUPPLEMENTARY INFORMATION:

Availability of Information

MSHA will post all comments on the Internet without change, including any personal information provided. Comments can be accessed electronically at

http://www.msha.gov/regsinfo.htm.

Comments may also be reviewed at the Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign in at the receptionist's desk on the 21st floor.

MSHA maintains a list that enables subscribers to receive e-mail notification when rulemaking documents are published in the

Federal Register

. To subscribe, go to

http://www.msha.gov/subscriptions/subscribe.aspx.

Table of Contents

I. Introduction

II. Background Information

A. Interim Mandatory Standards Under the Mine Act

B. MSHA's Existing Respirable Dust Standards

C. 1995 NIOSH Criteria Document and 1996 Dust Advisory Committee Report

D. 2000 and 2003 Plan Verification Proposed Rules

E. 2000 Single Sample Proposed Rule

F. Continuous Personal Dust Monitor

III. Section-by-Section Discussion

IV. Health Effects

V. Quantitative Risk Assessment

VI. Derivation and Distribution Table

VII. Executive Order 12866

A. Population at Risk

B. Benefits

C. Compliance Costs

D. Net Benefits

VIII. Feasibility

A. Technological Feasibility

B. Economic Feasibility

IX. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act

A. Definition of a Small Mine

B. Factual Basis for Certification

X. Paperwork Reduction Act of 1995

A. Summary

B. Procedural Details

XI. Other Regulatory Considerations

A. National Environmental Policy Act (NEPA)

B. The Unfunded Mandates Reform Act of 1995

C. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families

D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights

E. Executive Order 12988: Civil Justice Reform

F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

G. Executive Order 13132: Federalism

H. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

J. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking

XII. References

XIII. Appendix A—Excessive Concentration Values

I. Introduction

This proposed rule promotes the Secretary of Labor's vision of “Good Jobs For Everyone.” It also supports the Department of Labor's (DOL's) goal of securing safe and healthy workplaces, particularly for vulnerable workers in high-risk industries, such as mining, by reducing workplace deaths and improving the health of coal miners.

This proposed rule is an important element in MSHA's Comprehensive Initiative to “End Black Lung—Act Now!” MSHA launched this important initiative in December 2009 and it includes four components: rulemaking, enhanced enforcement, collaborative outreach, and education and training. The initiative will reduce, and ultimately eliminate, disabling occupational lung disease in coal mines.

This proposal provides the public with the opportunity to comment on the

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/m

) (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/m

) (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/m

of air (30 CFR § 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 §§ 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

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 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.

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.

Secretary of Labor

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

http://www.cdc.gov/niosh/95-106.html.

MSHA further stated that, although it would begin “the background work necessary to develop such a rule,” it would defer development of the rule until it received a report from the Secretary of Labor's Advisory Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers (Dust Advisory Committee), which the Secretary had established on January 31, 1995, and to which MSHA had referred the NIOSH criteria document.

On November 14, 1996, the Dust Advisory Committee submitted its report to the Secretary. The Dust Advisory Committee Report can be accessed electronically at

http://www.msha.gov/S&HINFO/BlackLung/1996Dust%20AdvisoryReport.pdf.

The report contained 20 wide-ranging principal recommendations, subdivided into approximately 100 action items, aimed at eliminating coal miners' pneumoconiosis and silicosis (62 FR 3717, January 24, 1997). The report recommended that MSHA consider lowering the level of allowable exposure to coal mine dust, with any reduction accompanied by a phase-in period to allow allocation of sufficient resources to the compliance effort.

D. 2000 and 2003 Plan Verification Proposed Rules

On July 7, 2000, MSHA published the Plan Verification proposed rule. The proposal would require underground mine operators to have a verified mine ventilation plan, with MSHA collecting samples to verify the adequacy of dust control parameters specified in the ventilation plan to maintain respirable dust standards (“verification sampling”).

In response to comments urging MSHA to withdraw the proposal, MSHA published a new proposed rule on March 6, 2003, (68 FR 10784), which would require mine operators to have a “verified” mine ventilation plan and conduct verification sampling on each mechanized mining unit (MMU). Under the proposal, mine operators would demonstrate the adequacy of dust control parameters specified in the ventilation plan to maintain the concentration of respirable coal mine dust and quartz dust at or below applicable dust standards. In addition, the mine operators' existing bimonthly respirable dust sampling program for each MMU and DA would be eliminated and MSHA would assume responsibility for compliance and abatement sampling in underground coal mines.

The 2003 proposal would also provide for the use of CPDMs once the CPDM was verified as reliable under mining conditions and commercially available.

Public hearings were held in May 2003. The closing date for the comment period for the Plan Verification proposed rule was extended indefinitely to obtain information concerning

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.

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

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 § 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

), 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

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

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 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

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

/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:

EP19OC2.016

where airflow rate = 0.002 m

/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

[1.38 MRE conversion factor × 1.5 mg/(540 min × 0.002 m

/min)]. Under the proposed definition, this quantity would be multiplied by 540/480, yielding an equivalent concentration of 2.16 mg/m

. 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

(8 hours × 2.0 mg/m

) as measured by the MRE instrument. The proposed definition of equivalent concentration would continue this same 16 mg-hr/m

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

or over 9 hours at an average of 1.92 mg/m

. In either case, the MRE equivalent exposure measurement for the sampled shift is 17.3 mg-hr/m

, which exceeds the 2.0 mg/m

standard for an 8-hour shift (

i.e.,

16 mg-hr/m

Using an approved gravimetric sampler, the standard for respirable quartz dust (

i.e.,

0.1 mg/m

) 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:

EP19OC10.000

This is the same value as would be obtained if 0.08 mg of quartz dust were accumulated on an 8-hour shift.

EP19OC10.001

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 § 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 § 70.207(e) would be redesignated as proposed § 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

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 (SiO

) 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 § 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

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

), 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

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/m

). 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

, the following data are obtained:

Day

Shift length

(hrs)

End-of-shift equivalent concentration

reported

Daily accumulated

exposure

Sun

1.5 mg/m

12 mg-hr/m

(1.5 mg/m

× 8 hrs).

Mon

1.5 mg/m

12 mg-hr/m

Tue

1.5 mg/m

12 mg-hr/m

Wed

1.5 mg/m

12 mg-hr/m

Thur

1.5 mg/m

12 mg-hr/m

WAE

= 60 mg-hr/m

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

), 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

, the WPAE would be 60 mg-hr/m

(40 hours × 1.5 mg/m

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

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

of air to 1.0 mg/m

. 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

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

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

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

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

, 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

if miners' daily exposures were kept below the REL of 1 mg/m

(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

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

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

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

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/m

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 §§ 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

, to 0.5 mg/m

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

to 0.5 mg/m

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

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.

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

(100 µg/m

) during each shift.

The existing standard limits miners' exposure to respirable quartz by reducing the applicable respirable dust standard (or limit) based on a formula that was prescribed by the Department of Health, Education and Welfare (now DHHS). The formula, which applies when the respirable coal mine dust contains more than 5.0 percent quartz, is 10 divided by the concentration of quartz, expressed as a percentage. The formula results in a continuous reduction in the respirable dust standard as the quartz content in respirable dust in the mine atmosphere increases over 5 percent (

i.e.,

the higher the percentage of quartz, the lower the respirable dust standard). Application of the formula was designed to limit a miner's exposure to respirable quartz to 0.1 mg/m

(100 µg mg/m

), based on a 2.0 mg/m

respirable dust standard.

One commenter on the CPDM RFI stated that controlling respirable dust containing silica to the current 2.0 mg/m

standard does not provide adequate protection for miners because of the greater lung toxicity of crystalline silica. MSHA is not establishing a new quartz limit in this rulemaking. MSHA will separately address a respirable crystalline silica standard for mining. (See the April 26, 2010 Regulatory Agenda entry at

http://www.msha.gov/regsinfo.htm.

Proposed paragraph (b) would retain the existing requirement to limit a miner's exposure to respirable quartz by establishing a reduced respirable dust standard. To be consistent with paragraph (a), paragraph (b) would apply when the concentration of respirable quartz dust exceeds 100 µg/mg

. 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

See equation above.

EP19OC10.002

(approximately 36 µg/m

) would be well below the standard of 100 µg/m

. If there is too little quartz to analyze, exposure is well below the standard.

D. Section 70.201 Sampling; General and Technical Requirements

The proposed rule would revise the operator sampling requirements in existing § 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 controlled conditions to determine the average concentration of respirable coal mine dust to which the affected miners were exposed. The existing process results in a delay between the time a sample is taken and when results are available to mine operators, miners, and MSHA.

The CPDM is a respirable dust sampler and gravimetric analysis device incorporated into the miner's cap lamp battery case as a single package located on the belt. The new cap lamp battery case contains all the components, including two separate batteries, to enable the dust monitor and cap lamp to operate independently. Air from a miner's work environment enters the sampling device through an inlet located adjacent to the lens of the cap light on the miner's hard hat and flows via a flexible tube that runs parallel to the lamp cord to the belt-mounted device. The air stream is first coursed through a Higgins-Dewell (HD) cyclone at a flow rate of 2.2 L/min to separate the non-respirable dust, so that only airborne particles that could penetrate to the lung will be analyzed by the device. From there, the air stream flows through: (1) A heater to remove excess moisture; (2) a 14-mm diameter glass fiber filter where the particles are collected; (3) a flow rate sensor; and (4) a computer-controlled pump.

The CPDM is designed to operate continuously for up to 12 hours. The display on the device continuously shows: (1) The respirable dust concentration calculated at distinct 30-minute intervals; (2) the average respirable dust exposure from the beginning of the shift; and (3) the percent of exposure limit. Through the display, both the miners wearing the device and the mine operator are aware of respirable dust exposures. This information can be used to validate whether dust control parameters are working as intended to assure that miners are not exposed to excessive concentrations of respirable coal mine dust.

The CPDM is capable of being used in a shift mode, in which the device is programmed by certified persons to operate for specific shift lengths (

e.g.,

8, 10, 12 hours) to monitor a Designated Occupation or other sampling entity's exposure, or in an engineering mode for

shorter-term evaluations. If the device is operated in an engineering mode, the certified person would operate it for short periods of time within the shift to record respirable dust levels during specific mining activities or at specific dust-generation sources in the mine. The display has various screens that show the: (1) Time of day; (2) elapsed time since beginning of the shift; (3) total amount of respirable dust accumulated on the filter since the start of sampling, which is stored in an internal memory for analysis; (4) dust concentrations; (5) operational parameters including flow rate, filter pressure, temperature, etc.; and (6) a bar graph of the average respirable dust concentration during the entire sampling period. On the bar graph, each bar represents the average concentration value for each previous 30-minute interval, with a new bar added to the graph every 30 minutes. This, along with other information, is stored in the CPDM and can be accessed and downloaded with a personal computer at the end of the shift for analysis and recordkeeping.

MSHA and NIOSH published the part 74 final rule on April 6, 2010 (75 FR 17512) that revised the approval requirements for the CMDPSU and established new approval requirements for the CPDM. The new CPDM approval requirements establish a science-based, feasible baseline for the performance of the new CPDM technology based on published NIOSH research (Volkwein, JC,

et al.,

2006, and Volkwein, JC

et al.,

2004). The final rule reflects current evaluation methods for assessment of direct-reading monitors. These methods have been summarized and issued as general guidelines by NIOSH in “Components for the Evaluation of Direct-Reading Monitors for Gases and Vapors,” (Kennedy, ER,

et al.,

1995). The requirements also reflect the state-of-the-art technology of the CPDM prototype.

NIOSH requires all applicants for CPDM sampling device approvals to use the NIOSH testing procedure “Continuous Personal Dust Monitor Accuracy Testing” to evaluate the accuracy, reliability, precision, and bias of a CPDM. The procedure is available at the NIOSH Web site:

http://www.cdc.gov/niosh/mining

. The procedure requires that testing be performed under diverse environmental conditions and that test results be submitted, in writing, to NIOSH. The protocol assures that all CPDMs are evaluated consistently. As stated in the preamble to the part 74 final rule, NIOSH will provide assistance to applicants, as necessary, to make the arrangement of such testing feasible.

NIOSH researchers (Page, S

et al.

2008) determined that measurements of respirable dust concentrations using the CPDM and CMDPSU are comparable. The MRE was used as the basis for the existing coal mine respirable dust standards and had been designed specifically to match the United Kingdom British Medical Research Council (BMRC) criterion. The CMDPSU is used with a 1.38 multiplier to convert readings to the BMRC criterion.

In order to compare CPDM measurements with those of the CMDPSU, NIOSH conducted field research. Researchers used a stratified random sampling design that incorporated a proportionate allocation strategy to select a sample of MMUs representative of all U.S. underground coal mines. A sample of 180 MMUs was chosen, representing approximately 20% of the MMUs in production at the time the sample was selected (September 2004). Dust concentrations were monitored concurrently by both CMDPSUs and CPDMs for a full shift. A total of 129 valid CPDM/CMDPSU dust sample sets were obtained. A weighted linear regression analysis of this database shows that, in comparison with the CMDPSU, the CPDM requires a mass equivalency conversion multiplier of 1.05 [95% Confidence Interval (1.03 to 1.08)] to produce a concentration that is an MRE equivalent concentration similar to the CMDPSU. This research shows that the two types of sampling units are very comparable due to this linear relationship.

The Dust Advisory Committee unanimously recommended that CPDM technology, when verified, be broadly used along with other sampling methods for evaluation of dust control at all MMUs and other high risk locations. The Committee further recommended that once verified as reliable, MSHA should use CPDM data for assessing operator compliance in controlling miner exposures and should consider use of CPDM data in compliance determinations.

MSHA published a request for information on October 14, 2009 (74 FR 52708) on the use of the CPDM as a sampling device to measure a miner's exposure to respirable coal mine dust. All commenters generally agreed that the required use of a CPDM would enhance the protection of miners’ health.

Under the proposed rule, § 70.201(a) would require the operator to use the CMDPSU to take respirable dust samples of the DO in each MMU until replaced by the CPDM. On [date 12 months after the effective date of the final rule], operators must replace the CMDPSU with the CPDM to sample the DO in each MMU, unless notified by the Secretary. The operator would be allowed, however, to start using the CPDM anytime during the 12-month phase-in period.

Proposed paragraph (b), which is new, would require that DAs associated with an MMU be sampled with an approved CMDPSU until replaced by a CPDM. Under the existing standard, DAs associated with an MMU are sampled with an approved CMDPSU. Proposed paragraph (b) would also require that on [date 18 months after effective date of the final rule], DAs associated with an MMU would be redesignated as ODOs. The proposal would require existing DAs associated with an MMU to be designated as ODOs because the CPDM would be used to measure respirable dust exposure of occupations on an MMU rather than areas associated with an MMU. The proposal would help assure that the sample reflects an accurate measurement of the occupation monitored.

To provide comparable protection for ODOs as for DOs, proposed paragraph (c) would require that the CPDM be used to sample ODOs after a proposed phase-in period of 18 months, unless notified by the Secretary.

The proposed rule would require, over an 18-month period, a phase-in of the use of CPDMs so that manufacturers have enough time to produce the necessary quantity of units and that MSHA and operators have enough time to train necessary personnel in the use and care of the device. The Agency recognizes that availability of the device may present logistical and other issues at the time the final rule becomes effective. The Agency intends to address the issue of availability in two ways. First, the proposal would require the use of the CPDM to sample (1) the DO in each MMU, and (2) each ODO, within a 12-month and 18-month period, respectively, unless notified by the Secretary. If MSHA determines that there will be logistical and feasibility issues surrounding the availability of CPDMs by the time the final rule becomes effective, the Agency will, through publication in the

Federal Register

, notify the public of the Agency's plans including any other action as necessary. Second, assuming no logistical or feasibility issues concerning the availability of CPDMs, and depending upon manufacturer projections, if CPDMs are not available in sufficient quantities, MSHA will accept, as good faith evidence of compliance with the final rule, a valid,

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.

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.

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

the filter. This leads to high back pressure, requiring the pump to work harder, and resulting in a shorter battery life. With the use of proper dust controls, the pump will not have to work as hard, thereby prolonging the battery life. To address shifts greater than 12 hours, the Agency is proposing to require that the unit be switched-out prior to the 13th hour to prevent disruption in operation and to provide continued protection for miners.

Paragraph (e)(2) is new and would add a similar requirement to address work shifts longer than 12 hours for operators who use CPDMs. It would require that the operator switch-out the CPDM with a fully charged device prior to the 13th hour of operation, if the work shift to be sampled is longer than 12 hours. NIOSH's Report of Investigations, 9669, Laboratory and Field Performance of a Continuously Measuring Personal Respirable Dust Monitor suggests that 12 hours of battery power be provided to the CPDM. Consistent with NIOSH's report, the Agency is proposing to require that the CPDM be switched-out prior to the 13th hour to prevent disruption in operation and to provide continued protection for miners. The Agency requests comments on an appropriate time that operators should switch out the CMDPSU's sampling pump or the CPDM when working longer than 12 hours. Please be specific in your comments and include rationale for your suggestions.

Proposed paragraphs (f)(1) through (f)(4), are derived from the 2003 plan verification proposal and, if using a CMDPSU, would require: the mine operator to use one control filter for each shift of sampling; each control filter to have the same pre-weight date (noted on the dust data card) as the filters used for sampling; each control filter to remain plugged at all times; each control filter to be exposed to the same time, temperature, and handling conditions as the filter used for sampling, and that each control filter be kept together with the exposed samples after sampling.

Consistent with accepted industrial hygiene principles and practice, proposed paragraph (f) would require the operator to use control filters when sampling. A control filter is an unexposed filter of the same design as the filter used for sampling and is pre- and post-weighed on the same day as the filter used for sampling. MSHA first began using control filters in its enforcement program in May 1998 and continues this practice today. The Agency's intent is to improve measurement accuracy by eliminating the effect of differences in pre- and post-exposure laboratory conditions, or changes introduced during storage and handling of the filter cassettes. Under the proposed rule, MSHA would extend the program in effect since July 2007, which allows operators to use control filters in the optional quartz sampling program, to the entire sampling program. The control filter would be used for all operator sampling to adjust the resulting weight gain obtained on each exposed filter by subtracting any change in the weight of the control filter from the change in weight of each exposed filter. This is especially important since the filter cassettes to be used by operators would be pre- weighed by the manufacturer and post-weighed by MSHA. To ensure the precision and accuracy of the pre-weight of filters currently used by MSHA, and proposed to be used by operators, MSHA audits the daily production of filter cassettes. The program conforms to ANSI/ASQ Z1.4-2008, “Sampling Procedures and Tables for Inspection by Attributes”, which defines the criteria currently used to monitor the quality of the operator bimonthly sampling program.

Since the control filter would be used to adjust the resulting weight gain obtained on each exposed filter cassette, the control filter must have the same pre-weight date as the filter cassette to be used for sampling on the same shift. The pre-weight date is noted on the dust data card. To prevent exposure to the mine environment, the plugs attached to the inlet and outlet side of the cassette must not be removed. Also, it is important that the control filter be exposed to the same time, temperature, and handling conditions as the ones that are used for sampling,

i.e.,

carry the control filter in a shirt or coverall pocket while underground. While the control filter can be carried by any miner assigned to the MMU being sampled, it would be preferable if that miner performed the job of the DO. Finally, the control filter cassette must be kept together with the exposed samples after sampling and should be treated in the same manner as the exposed filters prior to being transmitted to MSHA. Failure to follow these proposed instructions would be cause for voiding the sampling results.

Proposed paragraph (g) is new and would require the operator to make a record showing the length of each production shift for each MMU, to retain the records for at least six months and make them available for inspection by authorized representatives of the Secretary and the miners' representative or submitted to the District Manager when requested in writing. Under the proposed rule, mine operators would need to know the length of the production shift to determine the equivalent concentration of respirable dust in the mine atmosphere. MSHA would use these records to verify that operators are accurately recording the actual production shift lengths so that miners are not being overexposed.

Proposed paragraph (h), redesignated from paragraph (c), would be revised to require that, upon request from the District Manager, the operator would submit the date and time any respirable dust sampling would begin and submit that information to the District Manager at least 48 hours prior to scheduled sampling. MSHA has included the proposed 48-hour notification requirement in the proposal to provide the Agency the opportunity to observe and monitor operator sampling to ensure that both operating conditions and sampling requirements are met.

Proposed paragraph (i) is new and would require, for purposes of establishing a normal production shift as defined under proposed § 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

include miners who perform the duties of the DO or ODO, occupations determined by results of respirable dust samples to have the greatest respirable dust concentration. Mine operators may also choose to use the CPDM to address outby DA sampling.

Proposed paragraph (j) would require that a miner receive initial training prior to being required to wear a CPDM, and receive retraining every 12 months. Based on MSHA's experience, training would be most effective when provided close to the time when the miner is expected to wear the CPDM. Proposed paragraphs (j)(1) through (j)(5) would require that the miner be instructed on: The basic features of the CPDM and its capabilities; how to set-up the CPDM for compliance sampling; the various types of numerical displays on the CPDM readout and how to access that information; how to start and stop a short-term sample run during compliance sampling; and the importance of continuously monitoring dust concentrations and properly wearing the CPDM.

The CPDM is an important new technology that continuously measures miners' exposure to respirable coal mine dust, in real time. The proposed training requirements would assure that miners who must wear the CPDM understand not only how the device works, but also the data displayed on the CPDM, which continuously displays the concentration of respirable dust in their work environment. The miner can use the displayed information to inform a responsible mine official of excessive dust levels and any concerns of being overexposed to respirable dust. MSHA believes it is vital that miners be properly trained on the operation of CPDMs to assure the integrity and credibility of the sampling process. For the sampling program to be effective, miners must understand the proper use of the CPDM, and its operation and information displayed. Well informed miners are more likely to make the most of the capabilities of the new CPDM technology.

Some commenters on the 2009 CPDM RFI supported CPDM training that would be separate from part 48 training. Other commenters maintained that CPDM training should occur before initial usage and be included thereafter with part 48 refresher training. MSHA considered whether training on the operation and use of the CPDM could be adequately covered under part 48 training, considering the other subjects that part 48 is required to address. MSHA believes that it is impracticable to include the proposed comprehensive training on CPDMs within the prescribed time limits under part 48. Under the proposal, the time for CPDM training would be required to be in addition to that required under part 48. However, operators may choose to provide CPDM training separately from training under 40 CFR part 48, or may provide CPDM training on days that part 48 training is held as long as additional time is designated to assure that training on the CPDM required under the proposed rule is sufficient.

Some commenters suggested that MSHA provide hands-on training to small groups in 8-hour sessions to all underground miners. It is the responsibility of mine operators to provide required training. MSHA would encourage operators to develop training materials using available instructional materials (

e.g.,

videos) or operating manuals from the manufacturers.

Proposed paragraph (k) is new and would require mine operators to maintain a record of training at the mine site for two years following completion of training. MSHA believes it is important to retain these records to verify that the required training has been provided. Proposed paragraph (k) would also permit a mine operator to maintain the record at another location as long as the record could be immediately accessed electronically from the mine site. Finally, proposed paragraph (k) would require that upon request by an authorized representative of the Secretary, Secretary of HHS, or miners' representative, the mine operator must promptly provide access to any such training record.

E. Section 70.202 Certified Person; Sampling and § 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 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.

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 collection and handling of sampling devices, and for maintaining and calibrating approved sampling devices. Further inquiry of these certified persons revealed that a number of them were no longer familiar with basic procedures. MSHA believes that it is fundamental that the components of the dust sampling program be performed effectively to assure the integrity of the program, and periodic re-examination to maintain certification would advance this end.

The Dust Advisory Committee recommended unanimously that MSHA require annual update training for persons certified for dust sampling. The recommendation explained that annual refresher training would keep persons up to date with sampling methods and regulations, and maintain their expertise. MSHA agrees with the Dust Advisory Committee to the extent that it recommended a requirement that certified persons should be required to periodically demonstrate or reaffirm their competency in sampling procedures. MSHA believes that the proposed requirement would ensure that certified persons do not allow their knowledge, skills and abilities to lapse.

Before deciding to propose the requirement that certified persons be recertified through examination every three years, MSHA considered alternatives, such as yearly and biennial recertification. However, the Agency believes that recertification every three years would ensure that certified persons remain proficient in proper procedures and reduce the administrative burden that would be placed on operators and certified persons by a more frequent recertification requirement. Requiring persons to be reexamined at regular intervals as a condition of maintaining a valid certification would ensure certified persons have a minimum threshold of proficiency at all times, as familiarity with proper procedures is integral to protecting the health of miners. It is important to note that the proposal would not require certified persons to take the MSHA course of instruction every three years as a condition of re-certification. While MSHA believes that it is essential for persons who are seeking initial certification to complete classroom training prior to taking the competency examination and becoming certified, MSHA does not believe that the same requirement is necessary for persons seeking recertification. Persons seeking recertification will have had the benefit of actual, hands-on experience in either sampling or maintenance and calibration procedures, and MSHA believes that their competency would be adequately evaluated by whether they pass or fail the examination. For this reason, proposed §§ 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

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. 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.

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

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 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.

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

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 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. Pre-operational exams, testing and set-up procedures are critical to the proper use of the CPDM, as they would ensure that the approved device is working correctly and that results from the device are reliable. These procedures should be based upon the manufacturer's recommendations, as appropriate. Set-up procedures should include programming the CPDM with the shift length and the applicable dust standard for that MMU. Additionally, set-up procedures should include placing a filter in the device. The pre-operational examination should ensure that the CPDM is ready to be used for the shift. The designated mine official should also calculate the weekly permissible accumulated exposure. MSHA solicits comment on this proposed provision and requests that a detailed rationale accompany any comment or recommendation that is submitted.

Proposed § 70.206(b)(3) would require the Plan to include procedures that address downloading end-of-shift sampling information; and validation, certification and posting of reported results. The responsible mine official designated to perform these tasks would be required to be certified in sampling procedures. The proposal would require that the Plan specify how the operator would ensure that all of the recorded CPDM data would be downloaded at the end of each shift. Because the operator would be required to post specific end-of-shift information on the mine bulletin board, the downloaded data should include: the location within the mine from which the sample was taken; the respirable dust concentration; the occupation code, where applicable; the shift length; and any information related to a voided sample. With respect to the proposed requirements that the designated mine official validate and certify the reported results, the Plan should specify the means by which the official would determine that the reported results appear reasonable and accurate in light of considerations such as shift length, the location from which the sample was taken, the sampled occupation, etc. The proposal would require that the Plan include posting procedures and information describing how the official would ensure the posting of the reported results. MSHA solicits comment on this proposed Plan provision, and requests that a detailed rationale accompany any comment or recommendation that is submitted.

Proposed § 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

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 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 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

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. 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 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/m

be used when normal production is not achieved. In its place, the proposal would require that, if any sample

exceeds the applicable standard by 0.1 mg/m

, 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/m

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/m

. 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, full-shift 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/m

. The commenter also stated that the Agency should not apply the 95% confidence level adjustment since it gives benefit of the doubt to the operator at the expense of miners' health. In developing the proposal, MSHA considered an alternative that would have established noncompliance whenever any single-shift measurement exceeded the applicable dust standard by any amount. However, the Secretary must show, to a certain level of confidence, that there has been an overexposure before issuing a citation. The proposed rule is consistent with generally accepted industrial hygiene principles for health standards that include an error factor in determining noncompliance to account for measurement uncertainty. The proposal, however, would require that the operator take corrective action when the standard is exceeded by any amount. In this situation, the proposed rule would require that the operator: (1) Make respiratory equipment available to affected miners; (2) take corrective action to lower the dust level so that it does not reach the ECV level; and (3) record the corrective actions. This proposed requirement is generally consistent with NIOSH's recommendation and commenters' suggestion that the Agency make no upward adjustment to the standard, in that it would require the operator to take actions or receive a citation for not doing so.

Each proposed ECV was calculated to ensure that citations would be issued only when a single sample measurement demonstrates, with at least 95-percent confidence, that the applicable dust standard has been exceeded. MSHA believes that the proposed ECVs provide a sufficient degree of confidence in establishing noncompliance and basing noncompliance determinations on the proposed ECVs would provide miners increased health protection. A more detailed discussion on the derivation of the ECV values is included in Appendix A of the preamble.

The proposed rule would redesignate existing § 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 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

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 on DOs during all scheduled production shifts during the week. One commenter stated that the real-time sampling aspects of the CPDM provide the opportunity for more frequent sampling than is currently done.

Proposed paragraph (a)(2) would require mine operators using CPDMs to sample ODOs specified in paragraphs (b)(1) through (b)(10) of this section in each MMU during each production shift for 14 consecutive days during each quarterly period. The proposal would establish the quarterly periods as: (1) January 1-March 31; (2) April 1-June 30; (3) July 1-September 30; and (4) October 1-December 31. ODOs to be sampled would be identified by the MSHA District Manager (DM), specified in the mine ventilation plan, and addressed in the CPDM Performance Plan. ODOs identified by the DM would be based on MSHA's historical sampling data on the MMU; sampling of ODOs, such as shuttle car operators on MMUs using blowing face ventilation, would be required because MSHA's data show that sampling only the DOs does not always adequately protect other miners in the MMU. In addition, sampling on each production shift for 14 consecutive days during the specified quarter would provide samples that are representative of typical normal mining activities during the production shifts. MSHA believes that under normal mining conditions, the MMU should be able to complete multiple mining cycles in 14 days. Sampling during the 14-day period would provide results of respirable dust concentrations in the ODO's work environment and allow MSHA to evaluate the effectiveness of the dust controls being used.

The Agency solicits comment on which occupations should be sampled and the frequency that sampling should occur. Please be specific in your comments and include a detailed rationale.

Some commenters on the CPDM RFI stated that MSHA should be responsible for the purchase of all CPDMs and all sampling for purposes of determining compliance with respirable dust standards. The Dust Advisory Committee recommended that MSHA should take full responsibility for compliance sampling at the number and frequency levels required of both operators and MSHA to ensure reliability of the program. The Committee also stated that MSHA should explore possible means to secure adequate funding for this effort without adversely impacting the remainder of the Agency's resources and responsibilities. To achieve this end, the Committee recommended that resource constraints should be overcome by mine operator funding for the incremental compliance sampling, including implementation of an operator fee program. The proposed rule does not include these suggestions and recommendations. Under existing standards and consistent with the Mine Act, mine operators are responsible for providing safe and healthful mines. Toward that end, they are responsible for ensuring that hazards from respirable coal mine dust are minimized or eliminated from the miners' work environment. Operators are responsible for compliance sampling, including purchase of approved sampling devices. MSHA believes that this is a reasonable statutory requirement and sound regulatory principle that must be maintained. Consistent with the existing operator sampling program, MSHA believes that operators have primary responsibility and are in the best position to provide miners with safe and healthy working conditions. Part of that responsibility includes sampling the working environment to assure that miners do not suffer material impairment of health or functional capacity from exposure to respirable dust.

Proposed § 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

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 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-perc

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