Mine Shift Atmospheric Conditions; Respirable Dust Sample and Coal Mine Respirable Dust Standard Noncompliance Determinations; Notices DEPARTMENT OF LABOR

SUMMARY: The Mine Safety and Health Administration (MSHA) and the

National Institute for Occupational Safety and Health (NIOSH) will hold

a joint public hearing to receive comments on the February 18, 1994,

(59 FR 8357) notice addressing the joint finding by the Secretary of

Labor and the Secretary of Health and Human Services that the average

concentration of respirable dust to which each miner in the active

workings of a coal mine is exposed can be measured accurately over a

single shift. 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 notice on

noncompliance determinations published separately by MSHA today

elsewhere in the Federal Register.

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. The hearing will be held from 9 a.m. to 12 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, 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, which is discussed below.

Concurrently, 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.

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. The hearing will be

conducted in an informal manner by a panel of MSHA and NIOSH 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 and

NIOSH, 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 and NIOSH 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 and NIOSH 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 or NIOSH 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

Rescission of Joint 1971/1972 Finding

Comments received to date have reflected some confusion over the

MSHA and NIOSH decision to rescind the 1971 Notice of Finding which was

affirmed in 1972. On July 17, 1971, a Notice of Finding under section

202(f)(2) of the Mine Act was published by the Secretaries of the

Interior and Health, Education, and Welfare (36 FR 13286, July 17,

1971). This finding was based on an analysis of mine operator dust

sample results from 2,179 working sections in compliance with the dust

standard. Specifically, the average concentration of all 10 full-shift

samples submitted from each working section under the regulations in

effect at the time (referred to as ``basic samples'') ``* * * was

compared with the average of the two most recently submitted samples *

* *, then to the three most recently submitted samples, then to the

four most recently submitted samples, etc.''

In discussing the results of these comparisons, the Secretaries

stated that ``* * * the average of the two most recently submitted

samples of respirable dust was statistically equivalent to the average

concentration of the current basic samples for each working section in

only 9.6 percent of the comparisons.'' The finding concluded that ``[a]

single shift measurement of respirable dust would not, after applying

valid statistical techniques to such measurement, accurately represent

the atmospheric conditions to which the miner is continuously

exposed.''

MSHA and NIOSH have concluded that the statistical analysis and the

1971 Finding itself were not germane to the Congressional intent as

stated in section 202(f) of the Mine Act. On examination, it can be

seen that the conclusion reached in the notice is not consistent with

the title of the notice. Specifically, the title of the notice

published in 1971 and affirmed in 1972 states the following: ``Notice

of Finding That Single Shift Measurements of Respirable Dust Will Not

Accurately Represent Atmospheric Conditions During Such Shift''. The

conclusion reached in the notice states that: ``* * * a single shift

measurement would not, after applying valid statistical techniques,

accurately represent the atmospheric conditions to which the miner is

continuously exposed''. Section 202(f) specifies a finding focused on

the ``atmospheric conditions on such shift,'' not the ``atmospheric

conditions during which the miner is continuously exposed.'' The

analysis did not address the accuracy of a single full-shift

measurement in representing atmospheric conditions during the shift on

which it was taken. Therefore, the 1971/1972 finding does not establish

that a single-shift measurement is invalid.

NIOSH and MSHA request additional comments on their decision to

rescind the joint 1971/1972 finding and issue a new finding.

Accuracy of Single Full-Shift Measurements

The proposed joint finding is based on NIOSH and MSHA's position

that a sample taken in accordance with the provisions of 30 CFR parts

70, 71, and 90 accurately represents the full-shift, average

atmospheric dust concentration at the location where the sample is

collected. These regulatory provisions were designed to assure that

measurements taken with approved sampling devices in a prescribed

manner would meet a level of accuracy acceptable to the Secretaries.

Some commenters suggested that the joint finding was invalid because

NIOSH and MSHA had no evidence that a single shift sample would

accurately measure atmospheric conditions as required by section

202(f).

MSHA and NIOSH request further comments and data from the mining

community concerning the accuracy of a single, full-shift respirable

coal dust measurement.

Dated: May 27, 1994.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and Health.

Dated: May 31, 1994.

Linda Rosenstock,

Director, National Institute for Occupational Safety and Health.

[FR Doc. 94-13664 Filed 6-3-94; 8:45 am]

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