Coal Mine Respirable Dust Standard Noncompliance Determinations

DEPARTMENT OF LABOR

Mine Safety and Health Administration

Coal Mine Respirable Dust Standard Noncompliance Determinations

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Notice of public hearing.

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SUMMARY: The Mine Safety and Health Administration (MSHA) will hold a

public hearing to receive public comments on the February 18, 1994, (59

FR 8356) notice proposing the use of single, full-shift respirable dust

measurements to determine noncompliance under the MSHA coal mine

respirable dust program. This hearing is being held pursuant to section

101 of the Federal Mine Safety and Health Act of 1977 (Mine Act). The

hearing will be held in Morgantown, West Virginia.

This notice should be read in conjunction with the joint notice

published elsewhere in today's Federal Register by the Department of

Labor and the Department of Health and Human Services.

DATES: All requests to make oral presentations for the record should be

submitted at least 5 days before the hearing date. Immediately before

the hearing, any unalloted time will be made available to persons

making late requests. The public hearing will be held on Wednesday,

July 6, 1994, from 1 p.m. to 6 p.m.

ADDRESSES: The hearing will be held at the following location:

Department of Energy, Morgantown Energy Technology Center (METC), room

51-C, 3610 Collins Ferry Road, Morgantown, West Virginia 26507-0880.

Send requests to make oral presentations to: Mine Safety and Health

Administration, Office of Standards, Regulations and Variances, room

631, 4015 Wilson Boulevard, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office

of Standards, Regulations and Variances, MSHA, (703) 235-1910.

SUPPLEMENTARY INFORMATION: On February 18, 1994, MSHA published a

notice in the Federal Register (59 FR 8356) announcing its intention to

use both single, full-shift respirable dust measurements and the

average of multiple, full-shift respirable dust samples to determine

noncompliance and issue citations for violations of the respirable dust

standard under the MSHA coal mine respirable dust program.

Concurrently, the Secretary of Labor and the Secretary of Health

and Human Services jointly published a notice in the Federal Register

(59 FR 8357) announcing a new finding that the average concentration of

respirable dust to which each miner in the active workings of a coal

mine is exposed can be accurately measured over a single shift in

accordance with section 202(f)(2) of the Federal Mine Safety and Health

Act of 1977. Based on this finding, the Secretaries are proposing to

rescind the finding issued on July 17, 1971, and affirmed on February

23, 1972, described in the accompanying notice elsewhere in today's

Federal Register.

The comment periods for these notices were scheduled to close on

April 19, 1994, but, in response to requests from the mining community

for additional time in which to prepare their comments, MSHA extended

the comment period to May 20, 1994 (59 FR 16958).

The purpose of the public hearing is to receive relevant comments

and to answer questions concerning the notices. This hearing will be

conducted in an informal manner by a panel of MSHA officials. Although

formal rules of evidence or cross examination will not apply, the

presiding official may exercise discretion to ensure the orderly

progress of the hearing and may exclude irrelevant or unduly

repetitious material and questions.

The hearing will begin with an opening statement from MSHA,

followed by an opportunity for members of the public to make oral

presentations. The hearing panel will be available to address relevant

questions. At the discretion of the presiding official, speakers may be

limited to a maximum of 20 minutes for their presentations. In the

interests of conducting a productive hearing, MSHA will schedule

speakers in a manner that allows all points of view to be heard as

effectively as possible.

Verbatim transcripts of the proceedings will be prepared and made a

part of the rulemaking record. Copies of the hearing transcripts will

be made available to the public for review.

MSHA will also accept for the record additional written comments

and other appropriate data from any interested party, including those

not presenting oral statements. Written comments and data submitted to

MSHA will be included in the rulemaking record. To allow for the

submission of any post-hearing comments, the record will remain open

until August 5, 1994.

Issues

To date MSHA has received comments from the mining industry on two

major issues. The first major issue reflects differing interpretations

of section 202(b) of the Mine Act. Some commenters assume the

respirable coal mine dust standard applies to a long-term average

concentration of coal dust. Consequently, they concluded that

noncompliance determinations must take shift-to-shift variability into

account. Other commenters maintain that the respirable coal dust

standard applies to the coal dust concentration averaged over a single

shift. They concluded, therefore, that MSHA is authorized to issue a

citation whenever the dust standard is exceeded on a single shift, with

no allowance made for any shift-to-shift variability.

The second major issue involves use of the Values Table, specified

in the February 18, 1994, notice, for making noncompliance

determinations with respect to the respirable coal mine dust standard.

Several commenters objected to the principle of citing for

noncompliance only when noncompliance is indicated at a high confidence

level, claiming that doing so would effectively result in an increase

in the permissible exposure. Other commenters contended that the

proposed values at which a citation would be issued do not sufficiently

account for all sources of measurement uncertainty. MSHA specifically

solicits additional comments and data from the mining community on the

appropriate values at which a citation should be issued.

MSHA also requests comments and data from the mining community

concerning the following:

1. The impact on mine environmental respirable dust levels of using

the proposed values for noncompliance determinations;

2. Whether the proposed citation criteria, involving use of both

single samples and the average of multiple samples, will reduce the

incidence of overexposures on individual shifts; and

3. Other approaches that could be utilized to detect when the

average concentration of respirable dust in the mine environment is not

being maintained below the applicable standard during each shift.

Dated: May 27, 1994.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and Health.

[FR Doc. 94-13663 Filed 6-3-94; 8:45 am]

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