Mine Shift Atmospheric Conditions; Respirable Dust Sample

DEPARTMENT OF LABOR

Mine Safety and Health Administration

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention

Mine Shift Atmospheric Conditions; Respirable Dust Sample

AGENCIES: Mine Safety and Health Administration, Labor, National

Institute for Occupational Safety and Health, Centers for Disease

Control and Prevention, HHS.

ACTION: Notice.

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SUMMARY: This notice announces that the Secretary of Labor and the

Secretary of Health and Human Services1 (the Secretaries) find

that the average concentration of respirable dust to which each miner

in the active workings of a coal mine is exposed can be measured over a

single shift in accordance with section 202(f)(2) of the Federal Mine

Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 801 et seq. Based

on this finding, the Secretaries propose to rescind the notice of

finding which was published on July 17, 1971, and affirmed on February

23, 1972. This finding is governed by the provisions of section 101 of

the Mine Act. This notice should be read in conjunction with the notice

published separately by the Mine Safety and Health Administration

(MSHA) today elsewhere in the Federal Register.

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\1\This notice is signed by the Assistant Secretary for Mine

Safety and Health, and the Director, National Institute for

Occupational Safety and Health under authority delegated to them by

the Secretary of Labor and the Secretary of Health and Human

Services.

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DATES: Written comments must be submitted on or before April 19, 1994.

ADDRESSES: Send written comments to the Mine Safety and Health

Administration, Office of Standards, Regulations, and Variances, room

631, Ballston Tower No. 3, 4015 Wilson Boulevard, Arlington, Virginia

22203.

FOR FURTHER INFORMATION CONTACT: Ronald J. Schell, Chief, Division of

Health, Coal Mine Safety and Health, Mine Safety and Health

Administration, 4015 Wilson Boulevard, Arlington, Virginia 22203, (703)

235-1358.

SUPPLEMENTARY INFORMATION: In accordance with section 202(f)(2) and

under section 101 of the Mine Act, this notice is published jointly by

the Secretaries of the Departments of Labor and Health and Human

Services.

Statutory Framework

Section 202(b) of the Mine Act requires that:

Each operator shall continuously maintain the average

concentration of respirable dust in the mine atmosphere during each

shift to which each miner in the active workings of such mine is

exposed at or below 2.0 milligrams of respirable dust per cubic

meter of air.

Section 202(f) of the Mine Act provides that:

* * * the 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 an 18 month period following the

date of enactment of this Act, over a number of continuous

productions shifts to be determined by the Secretary and the

Secretary of Health, Education and Welfare, and (2) as measured

thereafter, over a single shift only, unless the Secretary of Labor

and the Secretary of Health, Education and Welfare find, in

accordance with the provisions of Section 101 of the Act, that such

single-shift measurement will not, after applying valid statistical

techniques to such measurement, accurately represent such

atmospheric conditions during such shift.

The plain meaning of the statutory requirements show clear

Congressional intent that the atmospheric conditions to which miners

are exposed be maintained at or below the applicable standard during

any single working shift. (The use of the term ``applicable standard''

recognizes that some mines have respirable dust in the mine atmosphere

of the active workings that contains more than five percent quartz, and

that, under the regulations of the Mine Safety and Health

Administration at 30 CFR 70.101, 71.101 and 90.101, the applicable

standard for respirable dust in those mines may be reduced because of

the quartz content). This intent is also clearly reflected in the

legislative history of the Coal Mine Health and Safety Act of 1969

(Coal Act). The Senate Committee in its Report noted that the dust

level should ``not exceed the specified standard during any shift''

(emphasis added). Senate Report No. 91-411, 91st congress, 1st Sess.,

p. 20. The Report also specified that:

It is the Committee's intention that the average dust level at

any job, for any miner, in any active working place during each and

every shift, shall be no greater that the standard. Since some mine

operations involve a varying pace of activity, the dust level could

significantly differ from one shift to another. It is expressly

noted, therefore, that the bill does not allow multiple shift

averaging.

However, the final version of the bill was amended by a joint House

and Senate conference committee which mandated an 18 month period for

the determination of ``average concentration'' over a number of

continuous production shifts, and thereafter as measured over a single

shift unless a specific finding was made pursuant to section 202(f) of

the Coal Act that such measurements were not reliable. Thus, the

statutory language clearly indicates that the use of multiple-shift

averaging was not the preferred method of determining the average

concentration. The National Institute for Occupational Safety and

Health (NIOSH) and MSHA have jointly developed the finding set forth

below.

Finding

The Secretaries find that a single full-shift measurement, after

applying valid statistical techniques to such measurement accounting

for the precision of the analytical and sampling method, will

accurately represent the atmospheric conditions with regard to the

respirable dust concentration during the shift in which it was taken.

Rescission of the 1971 Notice

Based on the preceding joint finding, the Secretaries propose to

rescind the July 17, 1971, notice of finding (36 FR 13286) by their

predecessors under the authority which is now section 202(f)(2) of the

Mine Act. The 1971 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.''

The finding did not address the average dust concentration during the

shift the sample was taken. Comments were received and considered, and

on February 23, 1972, the finding was affirmed by the then Secretaries

of the Interior and of Health, Education, and Welfare (37 FR 3833). The

Secretaries now propose to rescind the 1971 finding by superseding it

with the new finding contained in this notice.

Comments

MSHA and NIOSH specifically request that interested persons submit

comments concerning this notice to the address listed above. Written

comments submitted on or before April 19, 1994 will be considered

before issuing a final finding.

Dated: February 1, 1994.

Edward C. Hugler,

Acting Assistant Secretary for Mine Safety and Health.

Dated: February 1, 1994.

Richard A. Lemen,

Acting Director, National Institute for Occupational Safety and Health.

[FR Doc. 94-3592 Filed 2-17-94; 8:45 am]

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