U.S. Department of Labor
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Mine Safety and Health Administration
1100 Wilson Boulevard
Arlington, Virginia 22209-3939
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ISSUE DATE: August 12, 2002
PROGRAM INFORMATION BULLETIN NO. P02-8
FROM:
ROBERT M. FRIEND 
Administrator for
Metal and Nonmetal Mine Safety and Health
SUBJECT: Diesel Particulate Matter Exposure of Underground Metal and
Nonmetal Miners-Summary of Settlement Agreement
Scope
This information bulletin applies to operators and independent contractors of underground metal and nonmetal mines that use diesel powered equipment in the underground areas of the mine, and to Metal and Nonmetal Mine Safety and Health compliance specialists.
Purpose
This bulletin informs the mining community of the terms of the settlement agreement with industry challengers and organized labor to the diesel particulate matter (DPM) standard for metal and nonmetal mines promulgated on January 19, 2001 (66 FR 5706) and amended on February 27, 2002 (67 FR 9180). It also provides information on the comprehensive compliance assistance activities that MSHA will be offering. Under the agreement, the interim concentration limit of 400 micrograms of total carbon per cubic meter of air became effective on July 20, 2002, and MSHA agreed to propose a rule to make further revisions to the existing standard. The legal challenge to the DPM standard will be stayed pending completion of additional rulemaking.
Information
Effective Provisions of the DPM Standard:
The following provisions of the DPM standard are currently effective including the interim concentration limit. What you will notice is that some of them have different effective dates. The provisions and their effective dates are listed below.
�.5060(a), Interim concentration limit of 400 micrograms of total carbon per cubic meter of air (July 20, 2002)
�.5061, Compliance determinations (July 20, 2002)
�.5065(a) and (b), Fueling practices (July 5, 2001)
�.5066(a) and (c), Maintenance standards (July 5, 2001)
�.5066(b), Maintenance standards-tagging for maintenance, evidence for tagging, and "promptly" examined by qualified person (March 29, 2002)
�.5067(a), (b)(1) and (b)(2), Engines (July 5, 2001)
�.5067(b)(3), transferred engines (March 29, 2002)
�.5070, Miner training (July 5, 2001)
�.5071, Environmental monitoring (July 20, 2002)
�.5075, Diesel particulate records (July 5, 2001)
Effective after January 19, 2006:
�.5060(b), final concentration limit of 160 micrograms of total carbon per cubic meter of air.
Stayed Provisions:
The following provisions of the final standard are not effective at this time. MSHA recently stayed these provisions (67 FR 47296) and will address them in upcoming DPM rulemaking.
�.5060(d), miners may work in areas exceeding the concentration limit with advance approval of the Secretary.
�.5060(e), prohibiting respiratory protective equipment for compliance.
�.5060(f), prohibiting use of administrative controls for compliance.
�.5062, Diesel particulate matter control plan.
Scope of New DPM
Rulemaking:
MSHA also agreed to propose a standard to amend the existing final standard as follows:
�.5060(a) & (b), propose to change the diesel particulate matter surrogate from total carbon to elemental carbon for both the interim and final concentration limits, consider both technological and economic feasibility for a final standard.
�.5060(c), propose to adapt provision to interim concentration limit, include economic feasibility, and allow for annual renewals of special extensions approved by Secretary.
Propose to revise the following three provisions to implement the current hierarchy of controls in metal and nonmetal mines with consideration of requiring application to the Secretary before respirators are used. Propose to prohibit rotation of employees for compliance with this standard.
�.5060(d), (stayed) -working in areas above concentration limits;
�.5060(e), (stayed)-prohibiting respiratory protection; and
�.5060(f), (stayed)-prohibiting administrative controls.
�.5061(b)-Propose to change reference from "total carbon" to "elemental carbon."
�.5061(c)-Propose to delete reference to "area" and "occupational" sampling for compliance determinations. Proposal would result in personal sampling only.
�.5062---(stayed)-Propose to revise the control plan.
Compliance Assistance
Under the settlement agreement, MSHA will provide mine operators with comprehensive compliance assistance through July 19, 2003. MSHA's activities will include:
- Compliance assistance meetings throughout the country
to discuss how to comply with the DPM standard (a copy of the meeting schedule
will be mailed to each underground mine operator and miners' representative);
- Provide a compliance guide answering key questions;
- Inventory existing underground diesel-powered equipment;
- Provide information to mine operators on feasible DPM controls; and,
- Take baseline samples at each underground mine covered under the standard.
During this compliance assistance period (until July 19, 2003), mine operators will not be cited for exposures exceeding the interim limit of 400 micrograms of total carbon per cubic meter of air, provided they take good-faith steps to develop and implement a written compliance strategy and cooperate with MSHA. MSHA will issue a noncompliance citation for exceeding the interim concentration limit if the Agency believes that an operator is not acting in good faith, or if an operator fails to cooperate. After July 19, 2003, MSHA will issue citations for violations associated with the interim limit.
Background
On January 29, 2001, industry trade associations and several individual mining companies filed petitions for review of the DPM standard. The petitions have been consolidated and are pending in the District of Columbia Circuit. The United Steelworkers of America (USWA) intervened in the litigation. While these challenges were pending, some of the petitioners filed with MSHA an application for reconsideration and amendment of the final rule and to postpone the effective date of the final rule pending judicial review. Some petitioners similarly filed with MSHA a request for an administrative stay or postponement of the effective date of the rule. MSHA agreed to enter into negotiations with the litigants to settle the legal challenges to this rule. MSHA delayed the effective date of provisions of the final standard in order to accommodate settlement discussions.
As a result of a partial settlement agreement, MSHA amended the final standard on February 27, 2002 (67 FR 9180) to revise �.5066, Maintenance standards and �.5067, Engines. The amendments to the final rule were effective on March 29, 2002.
Also, MSHA agreed to conduct joint sampling with industry and labor at 31 underground mines to determine existing concentration levels of DPM; assess the performance of the SKC sampler and the NIOSH Method 5040; assess the feasibility of achieving compliance with the standard's concentration limits at the 31 mines; and, assess the impact of interferences on the sample in the metal and nonmetal underground mining environment before the limits established in the final rule become effective. Sampling and data analyses are completed, and MSHA is in the process of developing the final report.
Settlement negotiations continued on the remaining unresolved issues in the litigation. On July 15, 2002, the parties signed an agreement that is the basis for the July 18, 2002, Federal Register document delaying the effectiveness of certain dates (67 FR 47296).
Authority
Federal Mine Safety and Health Act of 1977; 30 C.F.R. Part 57.
Issuing Office and Contact Persons
Metal and Nonmetal Mine Safety and Health, Division of Health
Doris Cash, (202) 693-9631
Internet Availability
This information bulletin may be viewed on the Internet by accessing MSHA's home page at http://www.MSHA.gov and then choosing Statutory and Regulatory Information, Compliance Assistance Information, and Program Information Bulletins.
Distribution
All Volume and Volume IV Program Policy Manual Holders
Underground Metal and Nonmetal Mine Operators
Independent Contractors
Metal and Nonmetal Special Interest Groups
Metal and Nonmetal Miners' Representatives
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