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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-13664

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** June 6, 1994

## Text

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]
BILLING CODE 4570-43-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-13664. Public record. Not legal advice.