Proposed Program Policy Letter on Samples Used To Determine the Respirable Dust Level When Quartz Is Present

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 70, 71 and 90

Proposed Program Policy Letter on Samples Used To Determine the

Respirable Dust Level When Quartz Is Present

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Request for comments.

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

comments on a draft Program Policy Letter (PPL) regarding the samples

that are used to determine the reduced respirable coal mine dust

standard when more than 5.0 percent of quartz is present in the mine

atmosphere. Under the PPL, the samples used to determine a reduced

standard would be MSHA samples exclusively rather than a combination of

MSHA and mine operator samples. MSHA is publishing this Notice to

afford an opportunity for interested persons to comment on the draft

PPL before it is issued.

DATES: Submit comments on or before December 23, 1999.

ADDRESSES: Send comments on the proposed policy--

(1) By mail to MSHA, Office of Standards, Regulations, and

Variances, 4015 Wilson Boulevard, Room 631, Arlington, VA 22203;

(2) By facsimile to MSHA, Office of Standards, Regulations, and

Variances, 703-235-5551; or

(3) By electronic mail to [email protected]. If possible, please

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supplement written comments with computer files on disk; contact the

Agency with any format questions.

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

Coal Mine Safety and Health, (703) 235-1358. You may obtain copies of

this Notice in alternative formats by calling the MSHA Office of

Standards, Regulations, and Variances at (703) 235-1910. The

alternative formats available are large print or electronic file on a

computer disk. The proposed rule also is available on the Internet at

http://www.msha.gov/REGSINFO.HTM.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

The information collection requirements associated with

transmitting mine operator quartz samples to us (MSHA) are approved by

the Office of Management and Budget (OMB) under OMB control number

1219-0011. The Program Policy Letter (PPL) would reduce the number of

mine operator samples submitted. The paperwork burden on the mine

operators would be further reduced since mine operators would no longer

be required to complete and submit the dust data cards that accompany

quartz samples.

II. Background

We (MSHA) update our policies for enforcement of safety and health

regulations through PPLs. PPLs explain or clarify how regulations work

or apply in a particular situation. Once adopted, the policy statements

are published in the MSHA Program Policy Manual and given wide

distribution.

By this Notice, we are affording you the opportunity to comment on

a draft PPL that would change the current policy for determining how

the respirable coal mine dust standard is set when respirable dust

samples indicate more than 5.0 percent quartz is present in the mine

environment. Under this revised policy, only samples taken by MSHA,

rather than a combination of MSHA and mine operator samples, would be

used to establish the reduced standard due to the presence of quartz.

The text of the draft PPL follows the discussion of the draft

policy below. We will consider all timely submitted comments before

finalizing the PPL.

III. Discussion of Draft Policy

The standard set out in 30 CFR parts 70 and 71 requires that the

average concentration of respirable coal mine dust be continuously

maintained at or below 2.0 milligrams per cubic meter of air (2.0 mg/

\3\). However, when the respirable dust in the mine atmosphere of the

active workings contains more than 5.0 percent quartz, the 2.0 mg/m\3\

standard must be lowered under a formula set forth in 30 CFR 70.101,

71.101 and 90.101.1 That formula provides that the reduced

standard be computed by dividing the percent of quartz into the number

ten.

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\1\ Under MSHA regulations, the standard for intake air and for

miners who have exercised rights under Part 90 is 1.0 mg/m\3\. Those

standards are also lowered if quartz exceeds 5.0 percent.

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Under existing policy, MSHA samples can be averaged with mine

operator samples to determine the percent of quartz in the mine

environment. That policy is outlined in Chapter 1 of MSHA's Coal Mine

Health Inspection Procedures Handbook. That policy provides that if an

MSHA respirable dust sample indicates the presence of quartz in excess

of 5.0 percent the mine operator is notified of the result and provided

an opportunity to collect an optional respirable dust sample from the

affected area or occupation. If the operator collects such a sample,

and provided it has sufficient weight gain, the percent quartz in that

sample is averaged with the results of the MSHA sample to determine the

percent of quartz present in the mine environment. If no optional

sample is submitted, the reduced standard is established based on the

MSHA sample.

When an operator sample is submitted and the results of the MSHA

and operator samples differ by more than 2.0 percent, the

mine operator is provided the option of taking a second respirable coal

mine dust sample. If the mine operator takes the second optional

sample, the results are averaged with the results of the other two

samples. When the average percent quartz in the three samples is

greater than 5.0 percent, that average is used to compute the reduced

respirable dust standard.

The current policy of allowing mine operators the option of taking

up to two additional samples to determine the percent of quartz in the

mine atmosphere began in 1986. The policy was implemented to address

the concern of mine operators that reduced standards were being

established based on a single MSHA sample which may not be

representative of the level of quartz in the mine. During that time

period, MSHA sampled each mechanized mining unit annually. Accordingly,

operators were concerned that reduced standards were being established

based on that single inspection and remained in place until MSHA

conducted another inspection the following year. As a result, the

current policy was put into effect to allow mine operators to take up

to two additional samples which would be averaged with the MSHA sample

to determine the percent of quartz.

The report of the Secretary of Labor's Advisory Committee on the

Elimination of Pneumoconiosis Among Coal Mine Workers, which was issued

in October 1996, found that one of MSHA's highest priorities should be

to restore confidence in the respirable coal mine dust sampling

program. To achieve this objective, the Advisory Committee recommended

that we assume responsibility for all compliance sampling from mine

operators. We are working toward implementation of that recommendation.

As part of our plan, we are proposing to issue this PPL which would

establish MSHA sampling as the exclusive basis for determining the

reduced standard, rather than using a combination of MSHA and mine

operator sampling.

Under the proposed PPL, we would require three valid MSHA samples

to set a reduced standard. In the near future, we intend to sample MMUs

at underground coal mines each bimonthly period, and sample surface

mines twice each year. When initial samples show potential overexposure

to quartz, we will sample at a greater frequency to ensure that miners

will be protected. This represents a significant increase in MSHA

sampling that will allow us to determine the reduced standard based on

multiple MSHA samples.

Since MSHA intends to sample at underground mines on a bimonthly

basis and at each surface mine twice each year, the proposed PPL would

continue to address the mine operators' previous concern that a reduced

standard not be established on the results of a single MSHA sample.

Instead, the standards would always be based on the average of three

MSHA samples. This PPL would also address another concern of mine

operators that their samples may be voided because there is

insufficient weight gain on the filter to conduct a quartz analysis.

Since MSHA cassettes are pre- and post-weighed, samples taken on these

cassettes can be analyzed for quartz at a very low weight gain. Since

all samples would be MSHA samples under this PPL, preweighed filters

would be used in all instances.

As previously mentioned, the proposed PPL also addresses the

recommendations of the Advisory Committee that compliance action be

based solely on MSHA sampling results and reduces the burden and cost

on mine operators to take and submit samples to MSHA. Under the PPL, we

would average the percent of quartz

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present in the three most recent MSHA respirable coal mine dust samples

to determine the respirable coal mine dust standard when quartz is

present. MSHA would also begin reporting quartz levels to the tenth of

a percent (truncating to the tenth). This is the result of the improved

accuracy of the quartz analysis system related to the use of respirable

dust sampling filters pre-weighed to the thousandth of a milligram

(0.001 mg.)

While MSHA intends to use agency samples alone to establish reduced

standards, we recognize that there will be a transition period at mines

that currently have greater than 5.0 percent quartz in the mine

atmosphere. The transition period will last until MSHA has taken three

samples under this PPL. During this transition, on an entity (MMU, DA,

or DWP) currently on a reduced standard, a new standard will be

established by averaging the results of the first two MSHA samples

taken under this PPL with the quartz level associated with the current

reduced standard. Where we have taken fewer than two samples under this

PPL, the existing reduced standard will continue to apply.

For example, assume an MMU has a reduced standard of 1.0 mg/m\3\

with 10.0 percent of quartz. If our first sample under the new policy

results in a quartz percentage of 7.2 percent, the existing 1.0 mg/m\3\

would continue to apply. If the next MSHA sample indicates a quartz

percentage of 16.1 percent quartz, the average quartz would be (10.0 +

7.2 + 16.1) 3 or 11.1. This results in a 0.9 mg/m\3\ reduced

standard (10/11.1 = 0.9).

For sampling entities (MMU, DWP, DA) not currently on a reduced

standard, we would collect three separate samples and analyze them for

quartz content to determine if a reduced standard was necessary.

IV. Draft Program Policy Letter

Subject

Change in the existing policy for 30 CFR 70.101, 71.101 and 90.101.

Scope

This Program Policy Letter (PPL) applies to mine operators,

including independent contractors, and Mine Safety and Health

Administration (MSHA) enforcement personnel.

Purpose

This PPL changes the way that a reduced standard is established

when respirable coal mine dust samples contain quartz in excess of 5.0

percent in the mine environment. Only samples taken by MSHA, rather

than a combination of MSHA and mine operator samples, will be used to

establish the reduction in the respirable coal mine dust standard due

to the presence of quartz.

Policy

Respirable Dust Standard When Quartz is Present.

The lowering of the respirable dust standard when more than 5.0

percent of quartz is present will be based on the average percent of

quartz in the three most recent MSHA respirable dust samples (Example

1). The standard at a sampling entity on a reduced standard on the

effective date of the PPL will be based on the quartz level associated

with the existing standard and the results of the first two MSHA

samples taken under this PPL. Where we have taken fewer than two

samples under this PPL, the existing reduced standard will continue to

apply (Example 2).

Example 1--Mine ``A'' MMU 001-0 is on the 2.0 mg/m\3\ standard. Our

first sample under the new policy results in a quartz level of 10.2

percent, the existing 2.0 mg/m\3\ would continue to apply. The next

MSHA sample indicates a quartz level of 12.1 percent, the 2.0 mg/m\3\

standard would continue to apply. The third MSHA sample indicates a

quartz level of 11.3 percent. The new standard established would be

based on (10.2 + 12.1 + 11.3) 3 or 11.2 percent quartz. This

results in a 0.9 mg/m\3\ standard (10/11.2 = 0.9).

Example 2--Mine ``B'' MMU 002-0 is on a reduced standard of 1.0 mg/

m\3\ with 10.0 percent of quartz. MSHA's first sample results in a

quartz percentage of 7.2 percent, the existing 1.0 mg/m\3\ standard

would continue to apply. The next MSHA sample indicates a quartz

percentage of 16.1 percent. The new standard established would be based

on (10.0 + 7.2 + 16.1) 3 or 11.1 percent quartz. This results

in a 0.9 mg/m\3\ standard (10/11.1 = 0.9).

Effective Date of a New Reduced Standard

a. A new lower standard due to quartz is effective seven days after

the date that we mail the notice of the lower standard to the mine

operator. This provides notice of the new reduced standard to the mine

operator and allows changes in dust control to be made to achieve

compliance prior to sampling.

b. A new higher standard for quartz is effective on the date that

we mail the notice of the higher standard.

c. Where the effective date of the new standard for quartz occurs

during the time that the mine operator is conducting required sampling

for respirable coal mine dust, the higher of the two standards will be

effective during the required sampling. (The required samples are

bimonthly sampling, requests from MSHA for five additional samples, and

abatement samples.) The new standard will be effective when the

required sampling is completed, with one exception. When abatement

sampling shows continued noncompliance, the new standard becomes

effective before any additional sampling is conducted.

Example--A mechanized mining unit (MMU) has a standard of 2.0 mg/

m\3\. A new lower standard of 1.7 mg/m\3\ is in the process of being

set. However, the mine operator has taken at least one bimonthly sample

before the effective date of the change. The higher standard (2.0 mg/

m\3\) applies. The new lower standard (1.7 mg/m\3\) becomes effective

at the completion of the bimonthly sampling requirement.

Example--We request a mine operator to submit five additional

samples for a designated area. The existing standard is 1.7 mg/m\3\. A

new higher standard of 2.0 mg/m\3\ is in the process of being set.

However, the mine operator has taken at least one additional sample

before being notified of the change.

The higher standard (2.0 mg/m\3\) applies. The new higher standard

(2.0 mg/m\3\) becomes effective on the date of the mailing.

Effective Date

After considering comments from the public and making appropriate

revisions, we anticipate that this PPL would take effect 30 days from

the date of publication of the final PPL and would be incorporated into

MSHA's Program Policy Manual.

Authority: Section 103(a) of the Federal Mine Safety and Health

Act of 1977.

Dated: November 16, 1999.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and Health.

[FR Doc. 99-30495 Filed 11-22-99; 8:45 am]

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