Rule: Metal and Nonmetal Mine Safety and Health: Underground Mines&#8212 Diesel Particulate Matter Exposure of Miners

Thursday,
May 18, 2006
Part II
Department of Labor
Mine Safety and Health Administration
30 CFR Part 57
Diesel Particulate Matter Exposure of
Underground Metal and Nonmetal Miners;
Final Rule
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28924 Federal Register / Vol. 71, No. 96 / Thursday, May 18, 2006 / Rules and Regulations
DEPARTMENT OF LABOR EFFECTIVE DATE: This final rule is A. PEL § 57.5060(b)

effective on May 18, 2006 except for B. Special Extensions § 57.5060(c)(3)(i)
Mine Safety and Health Administration amendments to § 57.5060(d), which is C. Medical Evaluation and Transfer
effective August 16, 2006. § 57.5060(d)
30 CFR Part 57 D. Diesel Particulate Records § 57.5075(a)
FOR FURTHER INFORMATION CONTACT: IX. Regulatory Costs
Patricia W. Silvey, Acting Director, A. Costs of Medical Evaluation and
RIN 1219–AB29
Office of Standards, Regulations, and Transfer
Diesel Particulate Matter Exposure of Variances, MSHA, 1100 Wilson Blvd., B. Costs of Implementing the 160TC µg/m3
Underground Metal and Nonmetal Room 2350, Arlington, Virginia 22209– Limit
Miners 3939; 202–693–9440 (telephone); or X. Regulatory Flexibility Act Certification
202–693–9441 (facsimile). (RFA) and Small Business Regulatory
AGENCY: Mine Safety and Health You may obtain copies of this final Enforcement Fairness Act (SBREFA)
Administration (MSHA), Labor. rule and the Regulatory Economic A. Definition of a Small Mine
Analysis (REA) in alternative formats by B. Factual Basis for Certification
ACTION: Final rule. XI. Paperwork Reduction Act
calling 202–693–9440. The alternative XII. Other Regulatory Considerations
SUMMARY: This final rule revises the formats are either a large print version A. The Unfunded Mandates Reform Act of
May 20, 2006 effective date of the diesel of these documents or electronic files 1995
particulate matter (DPM) final that can be sent to you either on a B. National Environmental Policy Act
concentration limit of 160 micrograms computer disk or as an attachment to an C. The Treasury and General Government
of total carbon (TC) per cubic meter of e-mail. The documents also are Appropriations Act of 1999: Assessment
air (160TC µg/m3) promulgated in the available on the Internet at http:// of Federal Regulations and Policies on
2001 final rule ‘‘Diesel Particulate www.msha.gov/REGSINFO.HTM. Families
Matter Exposure of Underground Metal D. Executive Order 12630: Government
SUPPLEMENTARY INFORMATION:
and Nonmetal Miners,’’ and published Actions and Interference With
in the Federal Register on January 19, Outline of Preamble Constitutionally Protected Property
Rights
2001 (66 FR 5706) and amended on This outline will assist the mining E. Executive Order 12988: Civil Justice
September 19, 2005 (70 FR 55019). community in finding information in Reform
This final rule increases flexibility of this preamble. F. Executive Order 13045: Protection of
compliance for mine operators by I. List of Common Terms Children From Environmental Health
allowing staggered effective dates for II. Background Risks and Safety Risks
implementation of the final DPM limit, A. First Partial Settlement Agreement G. Executive Order 13132: Federalism
phased-in over a two-year period, B. Second Partial Settlement Agreement H. Executive Order 13175: Consultation
primarily based on feasibility issues III. Rulemaking History and Coordination With Indian Tribal
which have surfaced since promulgation A. Advance Notice of Proposed Governments
of the 2001 final rule. Rulemaking (ANPRM) on the Interim I. Executive Order 13211: Actions
and Final Concentration Limits Concerning Regulations That
Furthermore this final rule establishes B. Notice of Proposed Rulemaking (NPRM) Significantly Affect Energy Supply,
requirements for medical evaluation of on the Interim Limit Distribution, or Use
miners required to wear respiratory C. Final Rule Revising the Interim J. Executive Order 13272: Proper
protection and transfer of miners who Concentration Limit Consideration of Small Entities in
are medically unable to wear a D. September 2005 Notice of Proposed Agency Rulemaking
respirator; deletes the existing provision Rulemaking XIII. Information Quality
that restricts newer mines from applying IV. Risk Assessment XIV. References Cited
V. Feasibility XV. Regulatory Text
for an extension of time in which to A. Technological Feasibility
meet the final concentration limit; B. Economic Feasibility I. List of Common Terms
addresses technological and economic VI. Summary of Benefits
feasibility issues, and the costs and VII. Section 101(a)(9) of the Mine Act Listed below are the common terms
benefits of this rule. VIII. Section-by-Section Analysis used in the preamble.
31 Mine Study ................................................... Joint MSHA/Industry Study: Determinations of DPM levels in Underground Metal and
Nonmetal Mines.
Commission ....................................................... Federal Mine Safety and Health Review Commission.
CV ...................................................................... Coefficient of Variation.
DPF .................................................................... diesel particulate filter.
DPM ................................................................... diesel particulate matter.
EC ....................................................................... elemental carbon.
ETS .................................................................... environmental tobacco smoke.
Filter Selection Guide ....................................... Diesel Particulate Filter Selection Guide for Diesel-powered Equipment in Metal and
Nonmetal Mines.
First Partial Settlement Agreement .................. 66 FR 35518 (2001) & 66 FR 35521 (2001): basis for July 5, 2001 NPRM.
MARG ................................................................ Methane Awareness Resource Group.
M/NM ................................................................. metal/non-metal.
MSHA ................................................................ Mine Safety and Health Administration.
NIOSH ............................................................... National Institute for Occupational Safety and Health.
NTP .................................................................... National Toxicology Program.
OC ...................................................................... organic carbon.

PAPR .................................................................. powered air-purifying respirator.
PEL ..................................................................... permissible exposure limit.
PPM .................................................................... parts per million.
QRA ................................................................... quantitative risk assessment.
REA .................................................................... Regulatory Economic Analysis.
Federal Register / Vol. 71, No. 96 / Thursday, May 18, 2006 / Rules and Regulations 28925
Second Partial Settlement Agreement ............. 67 FR 47296 (2002): basis for August 14, 2003 NPRM.
SD ...................................................................... standard deviation.
SKC .................................................................... SKC, Inc.
TC ...................................................................... total carbon (the sum of elemental and organic carbon).
USWA ................................................................ United Steelworkers of America.
USW ................................................................... United Steelworkers.
µg/cm2 ............................................................... micrograms per square centimeter.
µg/m3 ................................................................. micrograms per cubic meter.
2001 final rule ................................................... January 19, 2001 DPM final rule.
Amended 2001 final rule ................................. 2001 final rule amended on February 27, 2002.
2002 final rule ................................................... February 27, 2002 final rule.
2002 ANPRM ..................................................... Advance Notice of Proposed Rulemaking published on September 25, 2002.
2003 NPRM ....................................................... Notice of Proposed Rulemaking published on August 14, 2003.
2005 final rule ................................................... June 6, 2005 final rule.
2005 proposed rule ........................................... Notice of Proposed Rulemaking published on September 7, 2005.
II. Background make limited revisions to § 57.5066(b) community related to the 2001 final
On January 19, 2001, MSHA and added a new paragraph to rule. MSHA also stated its intent to
published a final rule addressing the § 57.5067(b) ‘‘Engines’’ regarding the propose a rule to revise the surrogate for
health hazards to underground metal definition of the term ‘‘introduced.’’ the interim and final concentration
and nonmetal miners from exposure to MSHA published the final rule on limits and to propose a DPM control
diesel particulate matter (DPM) (66 FR February 27, 2002 (67 FR 9180). scheme similar to that included in our
5706). The rule established new health longstanding hierarchy of controls
B. Second Partial Settlement Agreement
standards for these miners by requiring, scheme used in MSHA’s air quality
Settlement negotiations continued on standards (30 CFR 56.5001 through
among other things, mine operators to
the remaining unresolved issues in the 56.5005 and 57.5001 through 57.5005)
use engineering and work practice
litigation, and on July 15, 2002, the for M/NM mines. In addition, MSHA
controls to reduce DPM to prescribed
parties finalized a written agreement (67 stated that it would consider
limits. It set an interim and final DPM
FR 47296, 47297). Under the agreement, technological and economic feasibility
concentration limit in the underground
the interim concentration limit of 400TC for the underground M/NM mining
metal and nonmetal mining
µg/m3 became effective on July 20, 2002, industry to comply with revised interim
environment with staggered effective
without further legal challenge. MSHA and final DPM limits. MSHA
dates for implementation of the
afforded mine operators one year to determined at that time that some mine
concentration limits. The interim
develop and implement good-faith operators had begun to implement
concentration limit of 400TC µg/m3 was
compliance strategies to meet the control technology on their
to become effective on July 20, 2002.
interim concentration limit, and MSHA underground diesel-powered
The final concentration limit of 160TC
agreed to provide compliance assistance equipment. Therefore, MSHA requested
µg/m3 was scheduled to become
during this one-year period. MSHA also relevant information on current
effective January 20, 2006. In the 2001
agreed to propose rulemaking on several experiences with availability of control
final rule, MSHA projected that the
other disputed provisions of the 2001 technology, installation of control
mining industry would meet the final
final rule. The legal challenge to the rule technology, effectiveness of control
concentration limit in their mines
was stayed pending completion of the technology to reduce DPM levels, and
through the use of diesel particulate
additional rulemakings. cost implications of compliance with
filtration devices, ventilation changes, On July 20, 2003, MSHA began full
and the turnover of equipment and the 2001 final rule.
enforcement of the interim
engines to less polluting models (66 FR concentration limit of 400TC µg/m3. B. Notice of Proposed Rulemaking
5713, 5888). MSHA’s enforcement policy was also (NPRM) on the Interim Limit
Several mining trade associations and
based on the terms of the second partial In response to our publication of the
individual mine operators challenged
settlement agreement and includes the ANPRM, some commenters
the final rule and the United
use of elemental carbon (EC) as an recommended that MSHA propose
Steelworkers of America (USWA)
analyte to ensure that a citation based separate rulemakings for revising the
intervened in the case, which is now
on the 400 TC concentration limit is interim and final concentration limits to
pending in the United States Court of
valid and not the result of interferences give MSHA an opportunity to gather
Appeals for the District of Columbia
(67 FR 47298). The policy was further information to establish a final
Circuit. The parties agreed to resolve
discussed with the DPM litigants and DPM limit, particularly regarding
their differences through settlement
stakeholders on July 17, 2003. feasibility. In the subsequent notice of
negotiations with MSHA and we
delayed the effective date of certain III. Rulemaking History proposed rulemaking (NPRM) published
provisions of the standard. on August 14, 2003 (68 FR 48668),
A. Advance Notice of Proposed MSHA concurred with these
A. First Partial Settlement Agreement Rulemaking (ANPRM) on the Interim commenters and notified the public in
On July 5, 2001, as a result of an and Final Concentration Limits the NPRM that we would propose a
agreement reached in settlement On September 25, 2002, MSHA separate rulemaking to amend the
negotiations, MSHA published two published an Advance Notice of existing final concentration limit of
160TC µg/m3. MSHA also requested
notices in the Federal Register. One Proposed Rulemaking (ANPRM) (67 FR

notice (66 FR 35518) delayed the 60199). MSHA noted in the ANPRM comments on an appropriate final DPM
effective date of § 57.5066(b) related to that the scope of the rulemaking was limit and solicited additional
tagging requirements in the limited to the terms of the Second information on feasibility. The proposed
maintenance standard. The second Partial Settlement Agreement and posed rule also addressed the interim
notice (66 FR 35521) proposed a rule to a series of questions to the mining concentration limit by proposing a
comparable PEL of 308 µg/m3 based on evaluation of miners required to wear comment on the proposed rule and
the EC surrogate and included a number respiratory protection and transfer of extended the comment period until
of other provisions. miners who have been determined by a February 17, 2006.
medical professional to be unable to What follows is a discussion of the
C. Final Rule Revising the Interim
wear a respirator. specific revisions to the 2001 DPM
Concentration Limit MSHA set hearing dates and a standard. The final rule addresses:
MSHA published the final rule deadline for receiving comments on the • Section 57.5060(b) addressing the
revising the interim concentration limit September 7, 2005 proposed rule with final dpm concentration limit;
on June 6, 2005 (70 FR 32868). This rule the expectation that MSHA would • Section 57.5060(c)(3)(i) addressing
changed the interim concentration limit complete the rulemaking to phase in the special extensions;
of 400 µg/m3 measured by TC to a final DPM limit before January 20, 2006. • Section 57.5060(d)addressing
comparable PEL of 308 µg/m3 measured After publication of the September 7, medical evaluation and transfer; and
by EC. The rule requires MSHA’s 2005 proposed rule, MSHA received a • Section 57.5075 addressing
longstanding hierarchy of controls that request from the United Steel, Paper and recordkeeping requirements.
is used for other MSHA exposure-based Forestry, Rubber, Manufacturing,
health standards at M/NM mines, but Energy, Allied Industrial and Service IV. Risk Assessment
retains the prohibition on rotation of Workers International Union (USW) for A. Introduction
miners for compliance. Furthermore, the more time to comment on the proposed
rule, among other things, requires rule. The USW explained that Hurricane We rely on our comprehensive
MSHA to consider economic as well as Katrina had placed demands on their January 2001 risk assessment published
technological feasibility in determining resources that would prevent them from at 66 FR 5752–5855 (as corrected at 66
if operators qualify for an extension of participating effectively in the FR 35518–35520) to support this final
time in which to meet the final DPM rulemaking under the current schedule rule. This risk assessment was updated
limit, and deletes the requirement for a for hearings and comments. MSHA in the 2005 final rule (70 FR 32868)
control plan. recognized the USW’s need to devote establishing the 308EC µg/m3 interim
Currently, the following provisions of resources to respond to the aftermath of permissible exposure limit (PEL). In the
the DPM standard are effective: Hurricane Katrina and the impact that following discussion, we will refer to
§ 57.5060(a), establishing the interim would have on their participation under the risk assessment published in the
PEL of 308 micrograms of EC per cubic the current timetable. MSHA also 2001 final rule as the ‘‘2001 risk
meter of air which is comparable in received a request from the National assessment’’ and the updates published
effect to 400 micrograms of TC per cubic Stone, Sand and Gravel Association in the 2005 final rule as the ‘‘updated
meter of air; § 57.5060(d), Addressing (NSSGA) for additional time to 2001 risk assessment.’’
control requirements; § 57.5060(e), comment on the proposed rule and for The discussion of the 2001 risk
Prohibiting rotation of miners for an additional public hearing in assessment in our 2005 final rule
compliance with the DPM standard; Arlington, Virginia. presented our evaluation of health risks
§ 57.5061, Compliance determinations; Accordingly, due to requests from the associated with DPM exposure levels
§ 57.5065, Fueling practices; § 57.5066, USW and NSSGA, MSHA published a encountered in the mining industry and
Maintenance standards; § 57.5067, notice on September 19, 2005 (70 FR is based on a review of the scientific
Engines; § 57.5070, Miner training; 55018) that changed the public hearing literature available through March 31,
§ 57.5071, Exposure monitoring; and, dates from September 2005 to January 2000, along with consideration of all
§ 57.5075, Diesel particulate records. 2006. MSHA also extended the public material submitted during the public
comment period from October 14, 2005 comment periods for the 2001 and 2005
D. September 2005 Notice of Proposed to January 27, 2006. Also on September rulemakings.
Rulemaking 19, 2005, MSHA issued a second notice The 2001 risk assessment was divided
On September 7, 2005, (70 FR 53280) delaying the applicability of the final into three main sections. Section 1 (66
MSHA proposed a rule to phase in the concentration limit of 160TC µg/m3 FR 5753–5764) contained a discussion
final DPM limit because MSHA was until May 20, 2006. of U.S. miner exposures based on field
concerned that there may be feasibility Public hearings were held on the data collected through mid-1998.
issues for some mines to meet that limit proposed rule in Arlington, Virginia on Section 2 of the 2001 risk assessment
by January 20, 2006. January 5, 2006; Salt Lake City, Utah on (66 FR 5764–5822) reviewed the
Accordingly, the proposed rule January 9, 2006; Kansas City, Missouri extensive scientific literature on health
considered staggering the effective date on January 11, 2006; and Louisville, effects associated with exposures to
for implementation of the final DPM Kentucky on January 13, 2006. The DPM. In section 3 of the 2001 risk
limit, phased in over a five-year period, comment period was scheduled to close assessment (66 FR 5822–5855), we
primarily based on feasibility issues on January 27, 2006. However, the evaluated the best available evidence to
which had surfaced since promulgation National Mining Association and the ascertain whether exposure levels
of the 2001 final rule. MSHA also Methane Awareness Resource Group currently existing in mines warranted
proposed to delete existing (MARG) Diesel Coalition requested that regulatory action pursuant to the Mine
§ 57.5060(c)(3)(i) that restricts new the comment period be extended an Act. After careful consideration of all
mines from applying for an extension of additional 30 days beyond January 27, the submitted public comments, the
time for meeting the final concentration 2006 to allow for more time to prepare 2001 risk assessment established three
limit. MSHA sought comment and data their comments. Additionally, the main conclusions:
on an appropriate conversion factor for Agency received a request from the
1. Exposure to DPM can materially impair
the final DPM limit, technological National Institute for Occupational

miner health or functional capacity. These
implementation issues, and the costs Safety and Health (NIOSH) for a three material impairments include acute sensory
and benefits of the final rule. In week extension. On January 26, 2006, irritations and respiratory symptoms
addition, MSHA requested comments MSHA determined that a three week (including allergenic responses); premature
on the appropriateness of including in extension of the comment period was death from cardiovascular, cardiopulmonary,
a final rule a provision for medical sufficient to allow additional public or respiratory causes; and lung cancer.
2. At DPM levels currently observed in in response to the proposed rule, and all analytical method are addressed in part
underground mines, many miners are of the comments, we did not identify VIII.A. Section 57.5060(b), addressing
presently at significant risk of incurring these any reason to reduce our concern with the final limits.
material impairments due to their
regard to adverse health risks associated
occupational exposures to DPM over a B. Exposures to DPM in Underground
working lifetime. with DPM exposure as identified in the
Metal and Nonmetal Mines
3. By reducing DPM concentrations in 2001 risk assessment.
underground mines, the rule will Section IV.B, summarizes the DPM The 2001 risk assessment and the
substantially reduce the risks of material exposure data that became available update presented in 2005 used the best
impairment faced by underground miners after publication of the 2001 final rule. available data on exposure to DPM at
exposed to DPM at current levels (66 FR Section IV.C, Health Effects, underground M/NM mines to quantify
5854–5855). summarizes additional scientific excess lung cancer risk. ‘‘Excess risk’’
Exposure to DPM can materially literature pertaining to adverse health refers to the lifetime probability of dying
impair miner health or functional effects of DPM and fine particulates from lung cancer during or after a 45-
capacity. These material impairments submitted to the record since our 2005 year occupational DPM exposure. All of
include acute sensory irritations and final rule. The reader is encouraged to the exposure-response models for lung
respiratory symptoms (including refer to the 2001 quantitative risk cancer are monotonic (i.e., increased
allergenic responses); premature death assessment (66 FR 5752–5855) that exposure yields increased excess risk).
from cardiovascular, cardiopulmonary, reviewed the health effects associated
with exposure to DPM. This discussion We evaluated exposures based on 355
or respiratory causes; and lung cancer.
evaluates the extent to which literature samples collected at 27 underground
Scientific evidence gathered after the
added to the record changes the U.S. M/NM mines prior to promulgating
peer-review of the 2001 risk assessment
conclusions of the 2001 risk assessment. the 2001 rule. Mean DPM
generally supports our conclusions, and
Section IV.D, Significance of Risk, concentrations found in the production
nothing in our reviews suggests that
supplements Section 2 of the 2001 risk areas and haulageways at those mines
they should be altered.
Some commenters presented critiques assessment (66 FR 5764–5822) by ranged from about 285 µg/m3 to about
challenging the 2001 risk assessment addressing comments related to the risk 2000 µg/m3, with some individual
and disputing scientific support for any assessment. measurements exceeding 3500 µg/m3.
DPM exposure limit, especially by We reviewed comments on the The overall mean DPM concentration
means of an EC surrogate. Other potential health effects of substituting was 808 µg/m3. All of the samples
commenters endorsed the risk EC for TC as a surrogate measure of considered in the 2001 risk assessment
assessment and stated that recent DPM. We believe that the issue of an were collected prior to 1999.
scientific publications support our appropriate surrogate for a measure of Two sets of DPM exposure data,
conclusions. DPM is separate from the issue of collected after promulgation of the 2001
Some commenters continue to determining whether adverse health final rule, were compiled for
question the scientific basis for linking effects are caused by whole DPM or a underground M/NM mines: (1) data
DPM exposures with an increased risk specific component of DPM. The 2001 collected in 2001 and 2002 from 31
of adverse health effects. Many of these risk assessment is definitive in mines for purposes of the 31-Mine
comments are the same as those explaining relevant adverse health Study (Table IV–1) and (2) data
addressed in the 2005 final rule. We effects caused by exposure to DPM. The collected between 10/30/2002 and 10/
refer the reader to section VI, DPM risk assessment accurately portrays 29/2003 from 183 mines to establish a
Exposures and Risk Assessment, in the adverse health effects ranging from baseline for future sample comparisons
2005 final rule (70 FR at 32888) for sensory irritation to lung cancer caused (Table IV–2). The mean whole DPM
discussions addressing earlier by exposure to DPM. The method by concentration across all 358 valid
commenters’ positions on the which exposures are measured does not samples in the 31-Mine Study was
underlying basis of the risk assessment. affect the conclusion that exposure to 432DPM µg/m3. The mean
After considering the additional peer- DPM produces serious adverse health concentration across all valid 1,194
reviewed scientific literature submitted effects. Comments concerning the baseline samples was 318DPM µg/m3.1
TABLE IV–1.—DPM CONCENTRATIONS (µg/m3) BY MINE CATEGORY FOR SAMPLES COLLECTED FOR THE 31-MINE STUDY
(2001–2002)
[DPM is estimated by TC ÷ 0.8]
Estimated 8-hour Full Shift Equivalent

DPM Concentration (µg/m3)
Metal Stone Trona Other
No. of samples ......................................................................................................................... 116 105 54 83

Minimum .................................................................................................................................. 46 16 20 27
Maximum ................................................................................................................................. 2,581 1,845 331 1,210
Median ..................................................................................................................................... 491 331 82 341
Mean ........................................................................................................................................ 610 465 94 359
Std. Error .......................................................................................................................... 45 36 9 27
95% UCL .......................................................................................................................... 699 537 113 412
95% LCL ........................................................................................................................... 522 394 75 306
1 The relationship DPM ≈ TC/0.8 is the same as relationship TC ≈ 1.3 × EC was formulated under the Second Partial Settlement Agreement, based on
that assumed in the 2001 risk assessment. The TC:EC ratios observed in the joint 31-Mine Study.
TABLE IV–2.—DPM CONCENTRATIONS BY MINE CATEGORY FOR SAMPLES COLLECTED DURING THE BASELINE SAMPLING
PERIOD (10/30/2002–10/29/2003)
[DPM is estimated by (1.3 × EC) ÷ 0.8.]
Estimated 8-hour Full Shift Equivalent DPM Concentration ( µg/m3)
Total
Metal Stone Other N/M Trona Total excluding
Trona
No. of Samples ............................................................................ 284 689 196 25 1,194 1,169

Maximum ...................................................................................... 2,532 3,724 1,200 509 3,724 3,724
Median ......................................................................................... 339 186 185 102 218 223
Mean ............................................................................................ 444 295 243 132 318 322
Std. Error .............................................................................. 23 13 15 20 10 10
95% UCL .............................................................................. 490 320 272 173 338 342
95% LCL ............................................................................... 399 270 214 91 299 303
Thus, despite substantial or respiratory causes; and lung cancer. [66 FR acute exposure to DPM, commenters
improvements attained since the 1989– 5854–5855] presented no evidence that any such
1999 sampling period addressed by the We have reviewed scientific literature effects were ‘‘transitory’’ or ‘‘reversible.’’
2001 risk assessment, underground M/ pertaining to health effects of fine Nor did commenters present evidence
NM miners are still faced with an particulates in general and DPM in that immunological responses
unacceptable risk of lung cancer due to particular published later than what was associated with either short-term or
their occupational exposure to DPM. considered in the 2001 risk assessment. long-term DPM exposure were
The reader is referred to part D of this This scientific evidence supports the ‘‘transitory’’ or ‘‘reversible.’’
section, Significance of Risk, for further 2001 risk assessment, and nothing in In addition, some commenters
discussion of excess risk. our review suggests that it should be erroneously stated that ‘‘no
Personal exposure samples taken after altered. [quantitative] dose/response
October 2003 are collected according to A number of commenters endorsed relationship related to the PELs could be
our enforcement sampling policy. These the 2001 risk assessment, and suggested demonstrated by MSHA.’’ These
enforcement samples collected after the that the latest evidence strengthens its commenters apparently did not
end of the Baseline Sampling period are conclusions. Some other commenters appreciate the discussion of exposure-
not representative of the average M/NM responding to our 2003 NPRM jointly response relationships in the 2001 risk
miner’s exposure to DPM because we stated that ‘‘[t]he scientific evidence for assessment (66 FR 5847–54) and failed,
collect samples to target the highest risk the [adverse] health effects of DPM is specifically, to note the quantitative
miner, not the average miner. Therefore, overwhelming’’ and that ‘‘evidence for exposure-response relationships shown
this exposure information is not used to the carcinogenicity and non-cancer for lung cancer in the two tables
characterize the average miner’s health effects of DPM has grown since provided (66 FR 5852–53). Relevant
exposure to DPM. See section V.B, 1998.’’ exposure-response relationships were
Economic Feasibility, for a summary of A number of commenters contended also demonstrated in articles by Pope et
enforcement sampling results. However, that all of the evidence to date is al. cited in the 2003 NPRM, which will
our enforcement activities from insufficient to support limitation of be discussed further below.
November 1, 2003 through January 31, occupational exposure to DPM. We Some commenters objected that the
2006 continue to show some miners believe that these commenters did not exposure-response relationships
have experienced exposures appreciate evidence presented in the presented in the 2001 risk assessment
substantially greater than 308EC µg/m3. 2001 risk assessment and/or did not justify adoption of the specific
During the time period from November mischaracterized its conclusions. For DPM exposure limits promulgated.
1, 2003 to January 31, 2006, 1,798 valid example, a few commenters erroneously These commenters mistakenly assume
personal compliance samples from all stated that promulgation of the 2001 the limits set forth in the 2001 final rule
mines covered by the regulation were rule was based on only ‘‘two principal were derived from an exposure-response
collected. From these samples collected, health concerns: (1) The transitory, relationship. As explained in 66 FR at
18% (324) of samples exceeded 308EC reversible health effects of exposure to 5710–14, the choice of exposure limits,
µg/m3, 22% (396) exceeded 350TC µg/ DPM; and, (2) the long-term impacts while justified by quantifiable adverse
m3, and 64% (1,151) exceeded 160TC µg/ that may result in an excess risk of lung health effects, was actually driven by
m3. These percentages show that miners cancer for exposed workers.’’ Actually, feasibility concerns. The exposure-
are still being exposed to high levels of as shown in the conclusion cited above, response relationships provided clear
DPM. the 2001 risk assessment identified evidence of significant adverse human
three different kinds of material health health effects (both cancer and non-
C. Health Effects cancer) at exposure levels far below
impairment associated with DPM
A key conclusion of the 2001 risk exposure: (1) Acute sensory irritations those determined to be feasible for
assessment was: and respiratory symptoms (including mining.
allergenic responses); (2) premature The additional scientific literature

Exposure to DPM can materially impair
miner health or functional capacity. These
death from cardiovascular, cited in the 2003 NPRM, the 2005 final
material impairments include acute sensory cardiopulmonary, or respiratory causes; rule and this 2006 final rule is meant
irritations and respiratory symptoms and (3) lung cancer. Although the only to update and supplement the
(including allergenic responses); premature cardiovascular, cardiopulmonary, and evidence of health effects cited in the
death from cardiovascular, cardiopulmonary, respiratory effects were associated with 2001 risk assessment. Although the
2001 risk assessment presented ample agency felt were representative of the (For an explanation of what type of
evidence to justify its conclusions, type of new information available since health effects are considered by us to be
additional supplemental DPM health the completion of the 2001 assessment material impairments of health, the
effects literature is reviewed in this and the updated 2001 risk assessment, reader is referred to the 2001 risk
document that became available after however, these tables are not to assessment (See 66 FR 5766.)
the 2001 risk assessment was published. represent a comprehensive review of all Table IV–3 summarizes five studies
The following section summarizes information published about particulate dealing with respiratory and
additional studies submitted to the matter. immunological effects of DPM and/or
record. Our review focuses on the fine particulates in general that have
(1) Respiratory and Immunological
implications of these study results for been submitted to the record since the
Effects, Including Allergenic Responses
the characterization of risk presented in 2005 literature update to the 2001 risk
MSHA’s 2001 assessment. These study In the 2001 risk assessment, acute assessment. The epidemiological studies
summaries are presented in three tables sensory irritations with respiratory by Hoppin (2004) and Pourazar (2004)
that correspond to the material health symptoms, including immunological or provide additional support for the
impairments identified in the 2001 risk allergenic effects such as asthmatic association between diesel exhaust
assessment: (1) Respiratory and responses, were grouped together. exposure and development of asthma.
immunological effects, including Similar material health impairments Three of the studies, Gluck (2003),
asthma, (2) cardiovascular and likely to be caused or exacerbated by Stenfors (2004), and Behndig (2006),
cardiopulmonary effects, and (3) cancer. excessive exposures to DPM were have also shown that exposures of
A fourth table focuses on a recent study identified. This finding was based on human volunteers to diesel exhaust at
about potential mechanisms of action human experimental and levels below 160TC µg/m3 cause
for DPM. These tables describe the epidemiological studies and was inflammation of the human respiratory
studies that some commenters and the supported by experimental toxicology. tract.
TABLE IV–3.—STUDIES OF HUMAN RESPIRATORY AND IMMUNOLOGICAL EFFECTS

Authors, year Description Key results
Behndig et al., 2006 ............. 15 healthy volunteers exposed to diesel exhaust or air Exposure to diesel exhaust at this concentration is suf-
(2 hours, diesel concentration measured as PM10: ficient to cause airway inflammation.
100 µg/m3) Eighteen hours after exposure, the volun-
teers were assessed using bronchoscopy with
bronchoalveolar lavage and endobronchial mucosal
biopsy.
Gluck et al., 2003 ................. Comparison of nasal cytological examinations of 136 The exposed group was found to have chronic inflam-
customs officers involved solely in clearance of matory changes of the nasal mucosa, including gob-
heavy-goods vehicles using diesel engines with ex- let cell hyperplasia, increased metaplastic and
aminations of 58 officers working only in offices. Ex- dysplastic epithelia, and increased leukocytes while
aminations were performed twice a year over a pe- the unexposed group did not.
riod of 5 years. Measured diesel engine emission
concentrations for the exposed group varied between
31 and 60 µg/m3.
Hoppin et al., 2004 .............. An association between diesel exhaust exposure and Driving diesel tractors was significantly associated with
development of asthma is explored. The study evalu- elevated odds of wheeze (odds ratio = 1.31; 95%
ated the odds of wheeze associated with nonpes- confidence interval = 1.13, 1.52). The odds ratio for
ticide occupational exposures in a cohort of approxi- driving gasoline tractors was lower but significant at
mately 21,000 farmers in Iowa and North Carolina. 1.11 (95% confidence interval = 1.02, 1.21). A dura-
Logistic regression models controlling for age, state, tion-response relationship was observed for driving
smoking, and history of asthma or atopy were ap- diesel tractors but not for driving gasoline tractors.
plied to evaluate odds of wheeze in the past year.
Pourazar et al., 2004 ........... 15 healthy volunteers were exposed to diesel exhaust This level of diesel exposure caused a significant in-
or air for 1 hour. Diesel concentration was measured crease in expression of the cytokine interleukin-13 in
as PM10 at 300 µg/m3). the airways of these volunteers. Interleukin-13 is
known to play a key role in the pathogenesis of asth-
ma.
Stenfors et al., 2004 ............ 25 healthy volunteers and 15 mild asthmatics were ex- Diesel exhaust exposure was documented to cause air-
posed to diesel exhaust or air alone for two hours ways inflammation in healthy volunteers. Diesel ex-
(diesel concentration measured as PM10 at 108 µg/ haust exposure did not significantly worsen existing
m3). At six hours after exposure, subjects underwent airways inflammation in the asthmatics, but did sig-
bronchoscopy with bronchoalveolar lavage and nificantly increase airways expression of the impor-
mucosal biopsies. tant allergy-associated cytokine, interleukin-10.
Review Article on Respiratory and and immunologic effects of diesel addressing these effects. The most
Immunological Effects Considered after exhaust particulate exposure plays a recent review by Riedl and Diaz-
the 2005 Final Rule role in the development of allergies and Sanchez (2005), summarized in Table
asthma. The 2001 risk assessment and IV–4, provides an overview of

There is a progressive accumulation the update to the risk assessment observational and experimental studies
of evidence showing the inflammatory describe in detail review articles that link DPM and asthma.
TABLE IV–4.—REVIEW ARTICLES ON RESPIRATORY AND IMMUNOLOGICAL EFFECTS

Riedl and Diaz-Sanchez, Review of evidence-based studies of the health effects Intact DEP and extracts of DEP induce reactive oxygen
2005. of air pollutants on asthma, focusing on diesel ex- species production. DEP and particulate matter in-
haust particles (DEP). duce release of Granulocyte Macrophage-Colony
Stimulating Factor and increase intracellular peroxide
production.
The ultrafine particle fraction of diesel exhaust might
also exert biologic effects independent of chemical
composition through penetration of cellular compo-
nents, such as mitochondria.
In its 2002 ‘‘Health Assessment There are difficulties involved in 2004b) describes a number of additional
Document for Diesel Engine Exhaust,’’ utilizing the evidence from such studies studies related to the cardiopulmonary
the Environmental Protection Agency in assessing risks to miners from and cardiovascular effects of PM2.5,
(EPA) reached the following conclusion occupational exposure to DPM. As including work published later than that
with respect to immunological effects of noted in the 2001 risk assessment, cited in MSHA’s 2003 NPRM (68 FR
diesel exhaust: First, although DPM is a fine particulate, 48668). One of the summary
Recent human and animal studies show ambient air also contains fine particulates conclusions presented in that document
that acute DE [diesel exhaust] exposure other than DPM. Therefore, health effects is:
episodes can exacerbate immunological associated with exposures to fine particulate Overall, there is strong epidemiological
reactions to other allergens or initiate a DE- matter in air pollution studies are not evidence linking (a) short-term (hours, days)
specific allergenic reaction. The effects seem associated specifically with exposures to exposures to PM2.5 with cardiovascular and
to be associated with both the organic and DPM or any other one kind of fine particulate respiratory mortality and morbidity, and (b)
carbon core fraction of DPM. In human matter. Second, observations of adverse long-term (years, decades) PM2.5 exposure
subjects, intranasal administration of DPM health effects in segments of the general with cardiovascular and lung cancer
has resulted in measurable increases of IgE population do not necessarily apply to the mortality and respiratory morbidity. The
antibody production and increased nasal population of miners. Since, due to age and associations between PM2.5 and these various
mRNA for some proinflammatory cytokines. selection factors, the health of miners differs health endpoints are positive and often
These types of responses also are markers from that of the public as a whole, it is
typical of asthma, though for DE, evidence statistically significant. [EPA, 2004b, Sec. 9
possible that fine particles might not affect p. 46]
has not been produced in humans that DE miners, as a group, to the same degree as the
exposure results in asthma. The ability of general population (66 FR 5767). Submissions to the rulemaking record
DPM to act as an adjuvant to other allergens
also has been demonstrated in human However, since the 2001 final rule support our
subjects. (EPA, 2002) previous position that exposure to DPM
Since DPM is a type of respirable particle,
information about health effects associated is associated with the development of
Submissions to the rulemaking record adverse cardiovascular and
since the 2005 final rule support our with exposures to respirable particles, and
especially to fine particulate matter, is cardiopulmonary effects.
previous position that exposure to DPM
certainly relevant, even if difficult to apply
is associated with the development of (3) Cancer Effects
directly to DPM exposures (66 FR 5767).
adverse respiratory and immunological
effects. One new study on cardiovascular and The 2001 risk assessment concluded
cardiopulmonary effects was added to that DPM exposure, at occupational
(2) Cardiovascular and the record. See Toxicological Effects in levels encountered in mining, was likely
Cardiopulmonary Effects this section for a summary of this to increase the risk of lung cancer. The
In the 2001 risk assessment, the article. assessment also found that there was
evidence presented for DPM’s adverse The EPA concluded in its 2002 Health insufficient evidence to establish a
cardiovascular and cardiopulmonary Assessment Document for Diesel Engine causal relationship between DPM and
effects relied on data from air pollution Exhaust that diesel exhaust (as other forms of cancer. This update
studies in the ambient air. This measured by DPM) is ‘‘likely to be a contains a description of three human
evidence identifies premature death human carcinogen.’’ Furthermore, the research studies and a literature review
from cardiovascular, cardiopulmonary, assessment concluded that ‘‘[s]trong relating DPM and/or other fine
or respiratory causes as an endpoint evidence exists for a causal relationship particulate exposures to lung cancer.
significantly associated with exposures between risk for lung cancer and Lung Cancer
to fine particulates. The 2001 risk occupational exposure to
assessment found that ‘‘[t]he mortality D[iesel]E[xhaust] in certain Table IV–5 presents three human
effects of acute exposures appear to be occupational workers’’ (Health studies pertaining to the association
primarily attributable to combustion- Assessment Document for Diesel Engine between lung cancer and exposures to
related particles in PM2.5 [i.e., fine Exhaust, EPA, 2002, Sec. 9, p. 20). The DPM or fine particulates submitted to
Particulate Matter] (such as DPM) EPA’s 2004 Air Quality Criteria the record after the 2005 update of the
* * *.’’ Document for particulate matter (EPA, 2001 risk assessment was done.
TABLE IV–5.—STUDIES ON LUNG CANCER EFFECTS

Garshick et al., 2004 ............ An evaluation of lung cancer mortality in 54,793 rail- Railroad workers in jobs associated with operating
road workers ages 40–64 with 10–20 years of serv- trains had a relative risk of lung cancer mortality of
ice in 1959. Based on evaluation of death certifi- 1.4 (95% confidence limits = 1.30–1.51). The authors
cates, subsequent mortality was assessed through did not think this association was due to uncontrolled
1996. Diesel-exposed workers such as engineers confounding. No relationship was found between
and conductors were compared to a referent group of years of exposure and lung cancer risk. The authors
less exposed workers such as ticket agents, station discussed the potential for this to be due to factors
agents, signal-maintainers, and clerks. such as a healthy worker survivor effect, lack of infor-
mation on historical changes in exposure, and the
potential contribution of coal combustion product be-
fore the transition to diesel locomotives.
Guo et al., 2004 ................... Evaluation of lung cancer mortality in all working Finns After controlling for other exposures such as asbestos
born between 1906 and 1945 and participating in the and quartz dust, only a slight excess of lung cancer
national census of December 1970. Based on the re- was found in men aged 20–59 associated with diesel
ported occupation held for longest time and a na- exhaust exposure. A parallel, but weaker, association
tional database of exposures for various occupations, was documented in women. The authors concluded
a variety of exposures including diesel exhaust were that risk associated with diesel exhaust ‘‘was not
estimated. Information about subsequent diagnosis of consistently elevated’’ and speculated that this was
lung cancer during the period 1971 to 1995 was ob- the result of factors such as low exposures or con-
tained from the Finnish Cancer Registry. founding from unmeasured non occupational expo-
sures.
Jarvholm et al., 2003 ........... Mortality study of Swedish construction workers. Infor- Truck drivers had significantly increased risk for cancer
mation about occupation and smoking was taken of the lung, while heavy construction vehicle opera-
from computerized health records available for the tors did not. In heavy construction operators, a sig-
period 1971–1992. Workers in two occupations ex- nificant trend of decreased risk for lung cancer was
posed to diesel exhaust, 6,364 truck drivers and associated with increasing use of vehicle cabins. The
14,364 drivers of heavy construction vehicles were authors explained that there was a difference be-
compared to a reference group of 119,984 car- tween truck and heavy equipment operators, but no
penters and electricians. conclusion could be reached without more detailed
information about the duration and concentration of
diesel exhaust exposures and smoking habits.
A Cohort Mortality Study With a Nested Nonmetal Miners (NIOSH/NCI Study would change our position that bladder
Case-Control Study of Lung Cancer and 1997). We previously addressed Dr. cancer is associated with exposure to
Diesel Exhaust Among Nonmetal Miners Chase’s analysis in our 2005 final rule DPM. The Agency has not received
[NIOSH/NCI 1997] (70 FR 32906). NIOSH and NCI additional information that would
A number of commenters expressed researchers involved in that project have change our position that there is
opinions on the unpublished document not yet published their analyses or insufficient evidence to support a link
authored by Dr. Gerald Chase (2004) conclusions based on these data. When between exposure to DPM and
entitled Characterizations of Lung the study is concluded, we will assess pancreatic cancer.
Cancer in Cohort Studies and a NIOSH the results and their association to our
Study on Health Effects of Diesel updated 2001 risk assessment findings. (4) Toxicological Effects of DPM
Exhaust in Miners. This document Therefore, the Agency believes that the Exposure
presents an analysis of some very opinions expressed by commenters on
Dr. Chase’s unpublished analysis of Table IV–6 presents one new
preliminary data provided by NIOSH
preliminary data are inappropriate for particulate matter toxicity study (Sun et
and the National Cancer Institute at a
identifying or assessing the relationship al., 2005) obtained since the 2005 final
public stakeholder meeting held on
between occupational DPM exposure rule. The table identifies the agent(s) of
Nov. 5, 2003. These data were taken
from unpublished charts that NIOSH and excess lung cancer mortality in that toxicity investigated and indicates how
and NCI used to inform the public of the data set. the results support the risk assessment
status and progress of their ongoing by categorizing the toxic effects and/or
Bladder Cancer and Pancreatic Cancer markers of toxicity found in each study.
project, A Cohort Mortality Study with
a Nested Case-Control Study of Lung No additional information was
Cancer and Diesel Exhaust Among submitted to the rulemaking record that
TABLE IV–6.—STUDY ON TOXICOLOGICAL EFFECTS OF DPM EXPOSURE

Toxic
Authors, year Description Key results Agent(s) of toxicity Limitations
effect(s)*
Sun et al., 2005 ......... Assessment of effects Long-term exposure Concentrated PM2.5 Inflammation, Ad- Exposure not specific
of subchronic expo- to low concentra- from northeastern verse cardio- to DPM.
sure to environ- tion of PM2.5 al- regional back- vascular effects.
mentally relevant tered vasomotor ground particulate.
particulate matter tone, induced vas-
on atherosclerosis cular inflammation,
and vasomotor tone and potentiated
in a mouse disease atherosclerosis.
model.
No new review articles on various In 2003, the World Health this section, the U.S. Environmental
aspects of the scientific literature related Organization (WHO) issued a review Protection Agency, World Health
to mechanisms of DPM toxicity were report on particulate matter air Organization, and the National
submitted to the record since the 2005 pollution and health. WHO concluded Toxicology Program regard DPM
final rule. In summary, the peer- that ‘‘fine particles (commonly exposure as adversely affecting human
reviewed publications submitted to the measured as PM2.5) are strongly health.
rulemaking record addressing the health associated with mortality and other Statement of Excess Lung Cancer Risk
effects of exposure to diesel exhaust endpoints such as hospitalization for
support our 2001 risk assessment (66 FR cardiopulmonary disease, so that it is In our 2001 risk assessment, we
5526; 30 CFR Part 2005) and nothing in recommended that air quality guidelines explained why we focused our
our review suggests that it should be for PM2.5 be further developed.’’ (WHO, quantification of health effects on lung
altered. 2003) cancer only. We estimated lower bounds
In the 10th edition of its Report on on the significance of risks faced by
D. Significance of Risk Carcinogens, the National Toxicology miners occupationally exposed to DPM
Adverse Health Effects Program (NTP) of the National Institutes with respect to (1) acute sensory
of Health formally retained its irritations and respiratory symptoms or
The first principal conclusion of the designation of diesel exhaust (2) premature death from
2001 risk assessment was: particulates as ‘‘reasonably anticipated cardiovascular, cardiopulmonary, or
to be a human carcinogen.’’ (U.S. Dept. respiratory causes. We expect the final
Exposure to DPM can materially impair
miner health or functional capacity. These of Health and Human Services, 2002) rule to significantly and substantially
material impairments include acute sensory The report noted that: reduce these two kinds of risk as well
irritations and respiratory symptoms as (3) lung cancer. However, we were
Diesel exhaust contains identified unable, based on available data, to
(including allergenic responses); premature mutagens and carcinogens both in the vapor
death from cardiovascular, cardiopulmonary, phase and associated with respirable quantify with confidence the reductions
or respiratory causes; and lung cancer (66 FR particles. Diesel exhaust particles are expected for the first two kinds and are
5854). considered likely to account for the human still unable to do so. Therefore, MSHA’s
lung cancer findings because they are almost quantitative assessment of the rule’s
We agree with commenters who all of a size small enough to penetrate to the impact on risk is restricted to its
characterized the weight of evidence alveolar region. expected impact on the third kind of
from the most recent scientific literature * * * Because of their high surface area, risk—the risk of lung cancer (66 FR
and the comprehensive scientific diesel exhaust particulates are capable of 5854).
literature reviews carried out by other adsorbing relatively large amounts of organic In the 2001 risk assessment, MSHA
institutions and government agencies as material * * * A variety of mutagens and assumed that, in the absence of this
supporting and potentially carcinogens such as PAH and nitro-PAH
* * * are adsorbed by the particulates. There
rule, underground M/NM miners would
strengthening this conclusion. be occupationally exposed to DPM for
is sufficient evidence for the carcinogenicity
In 2002, for example, the U.S. EPA, for 15 PAHs (a number of these PAHs are 45 years at a mean level of 808 µg/m3,
with the concurrence of its Clean Air found in diesel exhaust particulate and estimated reductions in lifetime risk
Scientific Advisory Committee emissions) in experimental animals. The expected to result from full
(CASAC), published its Health nitroarenes (five listed) meet the established implementation of the rule, based on the
Assessment Document for Diesel Engine criteria for listing as ‘‘reasonably anticipated various exposure-response relationships
to be a human carcinogen’’ based on obtained from Säverin et al. (1999),
Exhaust (EPA, 2002). With respect to
carcinogenicity experiments with laboratory Steenland et al. (1998), and Johnston et
sensory irritations, respiratory animals. [U.S. Dept. of Health and Human
symptoms, and immunological effects, al. (1997).
Services, 2002] Miner’s exposures to DPM levels have
this document concluded that:
Although many commenters agreed declined since 1989–1999. We expect
At relatively high acute exposures, DE that the adverse health effects associated that further improvements will continue
[diesel exhaust] can cause acute irritation to with miners’ exposure to DPM to significantly reduce the health risks
the eye and upper respiratory airways and
warranted an exposure limit, identified for miners. There is clear
symptoms of respiratory irritation which may
be temporarily debilitating. Evidence also

commenters from trade associations and evidence of adverse health effects due to
shows that DE has immunological toxicity industry continued to challenge the exposure to DPM in the rulemaking
that can induce allergic responses (some of conclusions of the 2001 risk assessment. record, not only at pre-2001 exposure
which are also typical of asthma) and/or Discussions addressing this issue were levels but also at the generally lower
exacerbate existing respiratory allergies. summarized in the 2001 risk assessment levels currently observed at many
[EPA, 2002] and the 2005 update. As referenced in underground mines. The adverse health
effects associated with exposure to DPM thousand miners occupationally risk continues after retirement through
are material health impairments as exposed to DPM at a specified mean the age of 85 years.
specified under section 101(a)(6)(A) of DPM concentration. The excess is Table IV–7, taken from the 2001 risk
the Mine Act. calculated relative to baseline, age- assessment, shows excess lung cancer
Because the exposure-response specific lung cancer mortality rates estimates at mean exposures equal to
relationships used in the risk taken from standard mortality tables. In
assessment are monotonic, we expect the final limit equivalent to 200
order to properly estimate this excess, it
that industry-wide implementation of micrograms of DPM per cubic meter of
is necessary to calculate, at each year of
each final limit will significantly reduce life after occupational exposure begins, air for eight hour shift weighted average.
the risk of lung cancer and other adverse the expected number of persons The eight exposure-response models for
health effects among miners. The 2001 surviving to that age with and without lung cancer used in the 2001 risk
risk assessment used the best available DPM exposure at the specified level. At assessment were based on studies by
data on DPM exposures at underground each age, standard actuarial adjustments Säverin et al. (1999), Johnston et al.
M/NM mines to quantify excess lung must be made in the number of (1997), and Steenland et al. (1998).
cancer risk. ‘‘Excess risk’’ refers to the survivors to account for the risk of dying Assuming that TC is 80 percent of
lifetime probability of dying from lung from causes other than lung cancer. whole DPM, and that the mean ratio of
cancer during or after a 45 year Occupational exposure is assumed to TC to EC is 1.3, the DPM limit of 200
occupational DPM exposure. This begin at age 20 and to continue, for µg/m3 shown in Table IV–7 corresponds
probability is expressed as the expected surviving miners, until retirement at age to the 160 µg/m3 TC limit adopted under
excess number of lung cancer deaths per 65. The accumulation of lifetime excess the present rulemaking.
TABLE IV–7.—EXCESS LUNG CANCER RISK EXPECTED AT SPECIFIED DPM EXPOSURE LEVELS OVER AN OCCUPATIONAL
LIFETIME
[Extracted from Table III–7 of the 2001 risk assessment]
Excess lung
cancer deaths
per 1,000
occupationally
Study and statistical model exposed
workers†
Final DPM Limit
200 µg/m3
(160 µg/m3 TC)
Säverin et al. (1999):

Poisson, full cohort ................................................................................................................................................................. 15
Cox, full cohort ....................................................................................................................................................................... 70
Poisson, subcohort ................................................................................................................................................................. 93
Cox, subcohort ....................................................................................................................................................................... 182
Steenland et al. (1998):
5-year lag, log of cumulative exposure .................................................................................................................................. 67
5-year lag, simple cumulative exposure ................................................................................................................................. 159
Johnston et al. (1997):
15-year lag, mine-adjusted ..................................................................................................................................................... 313
15-year lag, mine-unadjusted ................................................................................................................................................. 513
† Assumes 45-year occupational exposure at 1,920 hours per year from age 20 to retirement at age 65. Lifetime risk of lung cancer adjusted
for competing risk of death from other causes and calculated through age 85. Baseline lung cancer and overall mortality rates from NCHS
(1996).
As explained in the 2005 final rule, V. Feasibility experience gained under this or other
the exposure-response models shown Section 101(a)(6)(A) of the Mine Act health and safety laws.
are monotonic (i.e., increased exposure requires the Secretary of Labor, in Though the Mine Act and its
yields increased excess risk, though not establishing health standards, to most legislative history are not specific in
proportionately so). Therefore, using our adequately assure, on the basis of the defining feasibility, the Supreme Court
estimates of mean exposure levels, they best available evidence, that no miner has clarified the meaning of feasibility
all predict excess lung cancer risks will suffer material impairment of in the context of OSHA health standards
somewhere above the final whole DPM health or functional capacity over his or in American Textile Manufacturers’
limit of 200 µg/m3, or equivalently, her working life. Standards promulgated Institute v. Donovan (OSHA Cotton
160TC µg/m3. Thus, despite substantial under this section must be based upon Dust), 452 U.S. 490, 508–09 (1981), as
improvements apparently attained since research, demonstrations, experiments, ‘‘capable of being done, executed, or
the 1989–1999 sampling period and such other information as may be effected,’’ both technologically and
addressed by the 2001 risk assessment, appropriate. MSHA, in setting health economically.
underground M/NM miners are still standards, is required to achieve the The legislative history to the Mine Act
faced with an unacceptable risk of lung highest degree of health and safety indicates Congress’ intent for MSHA
cancer due to their occupational protection for the miner, and as stated when considering feasibility and states:
exposure to DPM. in the legislative history of the Mine While feasibility of the standard may be
Act, MSHA must consider the latest taken into consideration with respect to
available scientific data in the field, the engineering controls, this factor should have
feasibility of the standards, and a substantially less significant role. Thus, the
Secretary may appropriately consider the standard. United Steelworkers of methods with human skills and
state of the engineering art in industry at the America, AFL–CIO–CLC v. Marshall, abilities, a workable engineering control
time the standard is promulgated. However, (OSHA Lead) 647 F.2d 1189, 1273 (D.C. can be applied’’ to the source of the
as the circuit courts of appeals have Cir. 1980). hazard. It need not be an ‘‘off-the-shelf’’
recognized, occupational safety and health
Like, the Mine Act, the OSH Act product, but ‘‘it must have a realistic
statutes should be viewed as ‘‘technology
forcing’’ legislation, and a proposed health contains the term ‘‘technology-forcing’’ basis in present technical capabilities.’’
standard should not be rejected as infeasible with respect to standards setting. The (Secretary of Labor v. Callanan
‘‘when the necessary technology looms on D.C. Circuit Court also determined with Industries, Inc. (Noise), 5 FMSHRC
today’s horizon’’. AFL–CIO v. Brennan, 530 respect to technological feasibility 1900, 1908 (1983)). The Secretary may
F.2d 109 (3d Cir. 1975); Society of Plastics under the OSH Act that: also impose a standard that requires
Industry v. OSHA, 509 F.2d 1301 (2d Cir. protective equipment, such as
* * * ‘‘technology-forcing’’ under the OSH
1975), cert. denied 427 U.S. 992 (1975). respirators, if technology does not exist
Act, means, at the very least, that OSHA can
Similarly, information on the economic to lower exposures to safe levels. See
impose a standard which only the most
impact of a health standard, which is United Steelworkers of America, 647
technologically advanced plants in an
provided to the Secretary of Labor at a
[public] hearing or during the public
industry have been able to achieve-even if F.2d at 1269.
comment period, may be given weight by the
only in some of their operations some of the We have established that it is
time. American Iron & Steel Institute v. technologically feasible for the
Secretary. In adopting the language of [this
OSHA, supra, 577 F.2d at 832–835. underground M/NM mining industry to
section], the Committee wishes to emphasize
Since ‘‘technology-forcing’’ assumes that reduce miners’ exposures to the DPM
that it rejects the view that cost benefit ratios
‘‘an agency will make highly speculative
alone may be the basis for depriving miners final limits as prescribed in the final
projections about future technology, a
of the health protection which the law was
standard is obviously not infeasible solely
rule. Unlike the 2005 NPRM, we are
intended to insure. The Committee concurs phasing in the final limit of 160 Total
because OSHA has no hard evidence to show
with the judicial constitution that standards Carbon micrograms per cubic meter of
that the standard has been met. More to the
may be economically feasible even though air (160TC µg/m3) over a two-year
point here, we cannot require OSHA to prove
from the standpoint of employers, they are period, due to the updated feasibility
with any certainty that industry will be able
‘‘financially burdensome and affect profit
margins adversely’’ (I.U.D. v. Hodgson, 499
to develop the necessary technology, or even information in the rulemaking record.
to identify the single technological means by This updated feasibility information
F.2d 6a47 (D.C. Cir. 1974)). Where substantial
which it expects industry to meet the PEL. relates primarily to the wider
financial outlays are needed in order to allow
OSHA can force employers to invest all availability of alternative fuels, and in
industry to reach the permissible limits
reasonable faith in their own capacity for
necessary to protect miners, other regulatory particular biodiesel, improved filter
technological innovation. Society of Plastics
strategies are available to accommodate
Industries, Inc. v. OSHA, supra 509 F.2d at technology, and the impending
economic feasibility and health availability of EPA compliant 2007 on-
1309, and can thereby shift to industry some
considerations. These strategies could road diesel engines. Consequently, on
of the burden of choosing the best strategy for
include delaying implementation of certain May 20, 2006, the initial final limit will
compliance. United Steelworkers of America,
provisions or requirements of standards in be 308 micrograms of EC per cubic
647 F.2d at 1266.
order to allow sufficient time for engineering
controls to be put in place or a delay in the This same court found that proving meter of air (308EC µg/m3), which is the
effective date of the standard. S. Rep. No. 95– economic feasibility presented different same as the existing interim limit; on
181, 95th Cong. 1st Sess. 21 (1977). issues from that of technological January 20, 2007, the final limit will be
feasibility, where it stated: reduced by 50 micrograms and will be
The ‘‘arbitrary and capricious test’’ is a TC limit of 350TC µg/m3; and on May
usually applied to judicial review of But when the agency has proved 20, 2008, the final limit of 160TC µg/m3
rules issued in accordance with the technological feasibility by making will become effective. Note that the
Administrative Procedure Act. The reasonable predictions about experimental
means of compliance, the court probably
350TC µg/m3 final limit and the 160TC
legislative history of the Mine Act µg/m3 final limit are established as TC-
further indicates that Congress cannot expect hard and precise estimates of
costs. Nevertheless, the agency must of based limits in this final rule. It is our
explicitly intended the ‘‘arbitrary and intention to convert these TC limits to
course provide a reasonable assessment of
capricious test’’ be applied to judicial the likely range of costs of its standard, and comparable EC limits; however,
review of mandatory MSHA standards. the likely effects of those costs on the developing appropriate conversion
‘‘This test would require the reviewing industry. Ibid. at 1266. factors for these limits was beyond the
court to scrutinize the Secretary’s action scope of the current rulemaking. These
to determine whether it was rational in A. Technological Feasibility
TC limits will be converted to
light of the evidence before him and Courts have ruled that in order for a comparable EC limits through a separate
reasonably related to the law’s standard to be technologically feasible rulemaking.
purposes.’’ S. Rep. No. 95–181, 95th an agency must show that modern To meet the final DPM limits, mine
Cong., 1st Sess. 21 (1977). In achieving technology has at least conceived some operators will be able to continue to use
the Congressional intent of feasibility industrial strategies or devices that are existing available engineering control
under the Mine Act, MSHA may also likely to be capable of meeting the technology and various administrative
consider reasonable time periods of standard, and which industry is control methods used in meeting the
implementation. Ibid. at 21. generally capable of adopting. Ibid. interim DPM limit. However, we are
In order to establish the economic and (citing American Iron and Steel Institute affording the mining industry the
technological feasibility of a new rule, v. OSHA, (AISI–I) 577 F.2d 825 (3d Cir. additional time from that provided
an agency is required to produce a 1978) at 832–35; and, Industrial Union under the 2001 final rule to work
reasonable assessment of the likely Dep’t., AFL–CIO v. Hodgson, 499 F.2d through their remaining implementation
range of costs that a new standard will 467 (DC Cir.1974)); American Iron and issues with DPM control technology and
have on an industry, and an agency Steel Institute v. OSHA, (AISI–II) 939 to gain access to alternative fuels and
must show that a reasonable probability F.2d 975, 980 (DC Cir. 1991). A control DPFs. The additional time will also
exists that the typical firm in an may be technologically feasible when allow mine operators, especially small
industry will be able to develop and ‘‘if through reasonable application of mine operators, time to find effective
install controls that will meet the existing products, devices or work approaches to utilizing available DPM
control technology so that they will be variations in mining operations as to the District Manager for a special
capable of meeting the standard. opposed to reductions due to extension for additional time in which
Altogether, the mining industry will implementing a control technology. to meet the final limits, including the
have been afforded over seven years to Thus, for mines that are out of initial final limit of 308EC µg/m3.
institute control technology to reduce compliance with the DPM final limits, Although we anticipate that special
miners’ exposures to the final DPM limit controls would be required that attain extensions and our traditional hierarchy
of 160TC µg/m3. Our decisions in the compliance, or that achieve at least a of controls in enforcement will address
final rule are based on our enforcement 25% reduction in DPM exposure if it is some compliance issues, we envision
experience, along with information and not possible to attain compliance by that some miners will have to wear
data in the updated DPM rulemaking implementing feasible controls. If respiratory protection under the final
record, which includes the 2001 and engineering and administrative controls limit of 160TC µg/m3.
2005 DPM rulemaking records. The final are not capable of reducing exposure to Based upon a review of enforcement
rulemaking record lacks feasibility the limits in this final rule, and cannot data, we believe that a large portion of
documentation to justify lowering the reduce DPM exposures by at least 25%, the mining industry will initially
final DPM limit to 160TC µg/m3 at this we would not require the encounter implementation issues as
time. implementation of those controls. In they attempt to attain compliance with
The existing requirement for methods such cases, we will require miners to be the final limits using engineering and
of compliance will continue to be protected using appropriate respiratory administrative controls. However, we
applicable to the final limits. To attain protective equipment. believe that most mine operators will be
the final limits, mine operators are If a particular DPM control were able to overcome these issues within the
required to install, use, and maintain capable of achieving at least a 25% two-year period during which the final
engineering and administrative controls reduction all by itself, we would limits will be phased-in. For example,
to the extent feasible. When engineering continue to evaluate the costs of that the wider use of high biodiesel content
and administrative controls do not individual control to determine its fuel blends, which can reduce DPM
reduce a miner’s exposure to the DPM economic feasibility. If a number of emissions by up to 80% or more, will
limit, the controls are infeasible, or controls could together achieve at least be greatly facilitated by the significant
controls do not produce significant a 25% reduction, but no individual increases in biodiesel fuel production
reductions (defined in the 2005 rule (70 control, if implemented by itself, could that will occur in the United States over
FR 32868, 32916) as at least 25% achieve a 25% reduction, we will the next two years. The National
reduction in the affected miners’ DPM evaluate the total costs of all controls Biodiesel Board reports that annual
exposures), operators must continue to added together to determine their biodiesel production rose from 25
use all feasible engineering and economic feasibility as a group. In million gallons in 2004 to 75 million
administrative controls and supplement determining whether a combination of gallons in 2005. They also report that
them with respiratory protection. controls is economically feasible, we biodiesel plants that are either under
Though mine operators may choose to will consider whether the total cost of construction at the present time or in
use an engineering control or an the combination of controls is wholly the pre-construction phase will add
administrative control to reduce a out of proportion to the expected another 847 million gallons of annual
miner’s exposure, or a combination results. We will not cost the controls production capacity. A large portion of
thereof, existing § 57.5060(d) prohibits a individually, but will combine their this added capacity will be on-line by
mine operator from using respiratory expected results to determine if the 25% 2008.
protection in lieu of feasible controls. significant reduction criterion can be Another example of a recent
When respiratory protection is required satisfied. The concept of significant development that will help enable mine
under the final standard, mine operators reduction is not new to the M/NM operators attain our final DPM limit of
must establish a respiratory protection mining industry. MSHA’s 2005 160TC µg/m3 by May 2008 is the
program that meets the specified Compliance Guide includes the 25% impending availability of U.S. EPA 2007
requirements under existing significant reduction for determining on-road diesel engines. U.S. EPA 2007
§ 57.5060(d) of the DPM standard. feasibility. on-road diesel engine standards have
MSHA emphasizes that DPM At this time, we believe that this DPM emission limits that are about 90%
engineering and administrative controls compliance approach coupled with the lower than the current EPA limits allow.
may be feasible, and therefore be phased-in final limits provides mine The DPM reduction will be attained
required by MSHA, even if controls do operators with flexibility necessary to through the use of DPFs. The DPFs will
not reduce a miner’s exposure to the assure feasible compliance. This current be part of the engine and vehicle when
DPM limit. enforcement approach results in sold. For example, a new 2007 on-road
Under this rule, MSHA intends that feasibility of compliance for the pickup truck will have a DPF installed
feasible DPM controls must be capable industry as a whole with each of the on the vehicle at the time of purchase.
of achieving a significant reduction in phased-in limits contained in this final The 2007 on-road engines will be
DPM. We also note that most of the rule while protecting miners’ health. commercially available starting in early
practical and effective controls that are However, we continue to acknowledge 2007.
currently available, such as DPM filters, that compliance difficulties may be In addition to the EPA 2007 on-road
enclosed cabs with filtered breathing encountered at some individual mines, DPM standards, EPA also has new Tier
air, and low-emission engines will but on a much smaller scale than what 4 off-road standards that will reduce
achieve at least a 25% reduction. Other we project if the final limit of 160TC µg/ DPM about 90%. Tier 4 will be phased-
controls such as ventilation upgrades or m3 became effective in May 2006. This in beginning in 2008. Similar to the
alternative fuel blends may achieve a primarily will be due to implementation 2007 on-road engines, a DPF will be
25% reduction, depending on exposure issues and the cost of purchasing and installed on the engine and vehicle
circumstances and the specific nature of installing certain types of controls at when purchased. Even though the EPA
the subject control. It should also be these mines. implementation dates of Tier 4 is after
noted that reductions of less than 25% Moreover, pursuant to existing the date of the final limit, the DPF
could be due to normal day-to-day § 57.5060(c), mine operators can apply technology is being developed at this
time by the engine and filter impact cost of the rule) * * * Moreover, biodiesel fuel, compared to levels less
manufacturers in order to be ready for due to EPA [Environmental Protection than 100EC µg/m3 after the change-over.
the tier 4 standards. This current work Agency] regulations, which will limit In the most recent enforcement
will enhance the developments and DPM emissions from engines used in sampling at this mine, all samples were
availability of DPF systems that can be surface construction, surface mining, less than 50EC µg/m3. By late 2005, we
retrofitted to mining vehicles. and over-the-road trucks (the major were aware of at least four other mine
Although the emission limits for 2007 markets for heavy duty diesel engines), operators that had learned from this
on-road engines were established some the market for low tech ‘‘dirtier’’ experience and adopted this compliance
time ago, we had very little insight as to engines will dry up * * *; (b) one strategy. Another example is the
the strategies and technologies that the hundred percent of the production recently developed Diesel Particulate
engine manufacturers would use to meet equipment and about fifty percent of the ReactorTM (described later in this
these limits. For competitive reasons, support equipment will be equipped section of the preamble). This new
the engine manufacturers did not with filters; (c) about thirty percent of technology has been successfully
publicize their strategies or designs for all equipment will need to be equipped implemented by a large nonmetal mine
complying with these EPA regulations. with environmentally controlled cabs; operator. Reactors are currently
We were therefore uncertain as to (d) twenty three percent of the mines installed on about 80% of the mine’s
whether any 2007 on-road compliant would need new ventilation systems fleet of roughly 50 pieces of diesel
engines would be compatible with (fans and motors); (e) forty percent of equipment with no installation,
typical underground M/NM mine the mines will need new motors on operation, or maintenance problems
operational and production these fans; and (f) thirty two percent of reported. These experiences
requirements, duty cycles, and the mines will need major ventilation demonstrate that even the more
maintenance practices, and thus, upgrades (66 FR 5889–90). complex DPM control technologies can
whether they could be readily used or Furthermore, we concluded that it be successfully implemented by mine
adapted for use in underground M/NM would not be feasible to require the operators. As these successful
mines. metal and nonmetal sector, as a whole, experiences are shared throughout the
With the first 2007 on-road engines to lower DPM concentrations further, or mining industry, compliance by the
scheduled for release in early 2007, to implement the required controls more underground M/NM mining industry as
however, we now have a much clearer swiftly (66 FR 5888). a whole by May 2008 will be greatly
picture of the technologies that will be facilitated. The extended time specified
incorporated into these engines. The 2. Reasons Why the 2001 Assumptions
Were Questioned in this final rule is necessary to address
predominant technology will be DPM the implementation issues that the
filters which incorporate some form of Over the five years since the 2001
final rule was promulgated, both MSHA industry as a whole must overcome.
active regeneration to accommodate any However, as noted above, we believe
duty cycle, ranging from constant high- and the mining industry have gained
considerable experience with the these issues can be resolved within the
speed over-the-road trucks to light duty extended compliance timeframes
delivery vehicles and pickup trucks and implementation, use, and cost of DPM
control technology. We have reviewed established in the final rule.
SUVs in stop-and-go traffic conditions.
As noted later in this section of the this experience, and our own Several commenters quoted previous
preamble, we are confident that such enforcement data, and other relevant MSHA statements from the rulemaking
filter technology is suitable for information, and conclude that effective record they believe support their
application in underground M/NM DPM controls sufficient to attain position that the final DPM limit is
mines. Therefore, we expect appropriate compliance with the DPM limits technologically infeasible. A few quoted
2007 on-road engines to be readily specified in this final rule will be a passage from the 2005 final rule:
usable or adaptable for use in feasible and commercially available to ‘‘MSHA acknowledges that the current
underground M/NM mining equipment. mine operators by May 2008. For DPM rulemaking record lacks sufficient
These engines will begin to become example, in addition to currently feasibility documentation to justify
available in early 2007, with more and available DPM controls such as lowering the DPM limit below 308EC µg/
varied models becoming available in environmental cabs with filtered m3 at this time’’ (70 FR 32916).
subsequent months and years. breathing air, a variety of DPF systems, However, these commenters did not
In the future, we project that the low-emission engines, upgraded include the statements that followed,
number of miners who will need to ventilation, and alternative fuels, by which explained that we believed it was
wear respiratory protection will May 2008, we believe mine operators feasible for the industry as a whole to
decrease as mine operators learn more will benefit from wider availability of fully comply with the interim limit, but
about effectively selecting, retrofitting, alternative fuels, particularly biodiesel, that at that time—June of 2005—
and maintaining DPFs, as they begin to improved filter technology, and the attaining levels lower than 308EC µg/m3
use EPA compliant 2007 on-road availability of EPA compliant 2007 on- was not feasible for the entire industry.
engines with integral DPFs, and as mine road diesel engines and diesel powered In our 2005 NPRM, we indicated that a
operators in remote locations are able to equipment. As implementation issues DPM limit lower than 308EC µg/m3
gain easier access to alternative fuels, are resolved, the most successful should not become effective before
primarily biodiesel. implementation strategies will be January 2007, at the earliest, due to
adopted by other mine operators, concerns about implementation
1. MSHA’s 2001 Assumptions Regarding thereby speeding up compliance by the difficulties. It was our intention that
Compliance With the Final industry as a whole. For example, in mine operators would use the period of
Concentration Limit
2004, we were aware of only one mine nearly 20 months from June 2005
We stated in the proposed rule that operator that was using a high biodiesel through January 2007 and the
the assumptions that we used in 2001 in content fuel blend as a DPM compliance subsequent phased-in timeframes
support of our cost estimates included: method. DPM levels measured in this proposed in the NPRM to overcome
(a) Fifty percent of the fleet will have mine were consistently greater than implementation challenges and attain
new engines (these new engines do not 200EC µg/m3 prior to the change to compliance with the reduced limit.
Some commenters stated that any systems, and strategies for controlling processes will take more time than we
delay in the effective date for the final DPM emissions and exposures, we originally anticipated. However, we find
DPM limit was unjustified on either believe that the implementation one commenter’s position that suitable
technological or economic grounds. A challenges presented by the industry DPM controls are not readily available
number of commenters said that our warrant granting some additional time to not be persuasive. The rulemaking
2005 NPRM makes it clear that several to attain full compliance with the final record contains evidence that mine
technologies are available which, alone limit. We intend, however, for the worthy control technology is available,
or in combination, would permit mines mining industry to utilize this extra and includes a number of examples of
to meet the final limit. Doubts about time to diligently move forward in the successful implementation of such
whether all mines can do so in all achieving compliance with the final controls in all types of M/NM
operations, or doubts about whether limits. underground mines. The preamble to
current distribution networks for Some commenters quoted the this final rule expands on those
alternative fuels are as complete as may decision of Secretary of Labor v. available technologies, indicating as we
be necessary under the final rule, do not Callanan Industries, Inc. (Noise), 5 have suggested previously, that as
in these commenters’ views detract from FMSHRC 1900, 1908 (1983)), which demand for these technologies grows,
the conclusion that the final limit is addresses feasibility of an individual manufacturers will respond by
feasible. According to these mine operator to comply with an MSHA increasing the availability of feasible
commenters, MSHA’s search for exposure-based health standard. These control systems for use at underground
certainty that all mines can comply at commenters concluded that based on M/NM mines.
all times in all circumstances is a the current existence of alternative fuels We know that, when properly
violation of its technology-forcing and DPFs, that no delay in the final implemented, DPFs, environmental
mandate. In response, the Mine Act limit was justified. However, as noted cabs, alternative diesel fuels,
does not mandate that MSHA standards above, based on present implementation ventilation, and modern low emission
must be technology-forcing. issues, we have determined that engines are effective engineering
Another commenter stated that no additional time is needed by the mining controls for reducing DPM exposures in
technological reason exists for granting industry, as a whole, to meet the final underground M/NM mines. They have
industry an additional five years, on top limits. all been successfully implemented at
of the five years they have already had, Some other commenters stated that numerous mining operations to comply
to install existing technology to protect they do not believe there is a ‘‘realistic with the current interim limit. We know
workers. basis in present technical capabilities,’’ that when properly implemented,
Although technology currently exists [quoting Callanan]. These commenters various administrative and work
for compliance with both the interim believe that there is not an adequate practice controls can also effectively
and final DPM limits, we conclude that array of mine worthy, technically reduce DPM exposures. Effective control
implementation challenges and feasible solutions that are readily technology, however, cannot be
difficulties with this technology and the available for implementation in successful if mine operators are not
costs of implementing it in the M/NM underground metal and nonmetal diligent in resolving their unique
mining industry affect feasibility. We mines. They believe that their implementation issues. Implementation
have observed the difficult applications conclusion is confirmed by MSHA’s issues vary from mine to mine, and
engineering challenges faced by a statement in the 2005 NPRM that, what accounts for some mine operators
substantial number of mine operators in ‘‘effective control technology that will being successful while others have had
implementing these technologies. reduce exposures to the final limit is only limited success attaining DPM
Consequently, these challenges have led speculative at this time’’ (70 FR 53285). compliance primarily depends on the
us to determine that additional time is We find these arguments made by particular choices of controls selected,
needed by the industry as a whole to some commenters not persuasive, and the corresponding implementation
feasibly meet the final limit. because in the 2005 NPRM, we strategies employed. Clearly, it is easier
Another passage that several acknowledged that full compliance with and cheaper to obtain compliance at
commenters in opposition to the 2005 the final DPM limit by the industry as some mines than at other mines, due to
NPRM quoted, stated that: a whole by the original effective date of factors such as mine size, mining
January 2006 was unlikely to be conditions, the amount, type, and age of
When we established the 2001 final limit, feasible. Over the past five years, we
we were expecting some mine operators to diesel equipment in use, height and
encounter difficulties implementing control have been working with all members of width of roadways, grades that must be
technology because the rule was technology the M/NM mining community affected traversed, elevation of the workings,
forcing. We projected that by this time, by this final rule. We believe that the remoteness of the mine, and so on.
practical and effective filter technology industry has made tremendous progress A commenter expressed the need for
would be available that could be retrofitted and will continue to work through these DPM controls that are, ‘‘readily
onto most underground diesel powered feasibility challenges and that it will be available for implementation in
equipment. However, as a result of our feasible for the industry to comply by underground metal and nonmetal
compliance assistance efforts and through
our enforcement of the interim limit, we have
the dates established in this final rule. mines.’’ Although we believe the
become aware that this assumption may not
We continue to conclude, based on rulemaking record supports the
be valid. The applications engineering and experience gained under the existing conclusion that the required DPM
related technological implementation issues DPM rule, that the applications controls are commercially available, as
that we believed would have been easily engineering required to adapt advanced noted above, the additional time offered
solved by now are more complex and DPM control devices and systems to by this final rule to meet the final limit
extensive than previously thought (70 FR new and existing mining equipment, to is necessary for the mining community
53283). introduce alternative fuels, to train as a whole to implement these DPM
Although we have evidence of miners on their proper installation, controls.
successful applications of DPM controls operation, inspection, maintenance, and A commenter observed that ‘‘The ‘put
in the rulemaking record and the proven repair, and to integrate new methods a filter on it’ solution, suggested in prior
effectiveness of various products, and work practices into complex mining MSHA analysis as the primary mode of
compliance, is now acknowledged to be The other aspect of our position on proposed based on the rate at which we
a very goal that is not often achievable.’’ technological feasibility that these observed these implementation issues
This commenter goes on to say commenters may not fully appreciate is being successfully addressed at that
‘‘Therefore, by implication, the our position on current technological time by the industry as a whole. We
compliance model used to estimate feasibility versus feasibility at a future believed this five-year timetable for
compliance feasibility, and costs in the date. They have assumed that because phasing-in the final limit was
PREA and FREA is suspect.’’ we acknowledged that it was infeasible reasonable, providing for feasible
Several other commenters also to meet the final limit by May 20, 2006, compliance by the industry as a whole
claimed that our technological that it is also infeasible to meet the final while insuring substantial annual
feasibility determinations were based on limit at a future date as required in the reductions in DPM exposure of miners.
predictions that retrofitting diesel final rule. Again, our position is that we However, we asked for comments on
equipment with exhaust filters would be believe that additional time will be whether this proposed five-year phase-
the primary means of compliance, but required for certain key technologies to in would be the appropriate timeframe
that no such filters were commercially become sufficiently diffused and for mine operators to attain the final
available at the time. We believe these available, and that the industry as a DPM limit of 160TC µg/m3. Some
commenters may not fully appreciate whole will require additional time commenters provided information
our position on technological feasibility under this final rule to successfully opposing the five-year phase-in, saying
in at least two key respects. First, we implement the necessary controls to any delay was unjustified. Other
have never advised the industry that full attain compliance with the final phased- commenters supported the five-year
compliance with either DPM limit in limits. phase-in as an improvement from the
would be a simple process of ‘‘[putting] We believe it will be feasible for the original January 2006 deadline, but
a filter on it.’’ Rather, our feasibility industry as a whole to implement the suggested that due to feasibility
determinations were based on the required controls and attain compliance concerns, even more time would be
assumption that mine operators would with the phased-in DPM limits within needed to attain compliance. Other
choose the control or combination of the timeframes established in the final commenters have consistently
controls that best suited the unique rule. For example, biodiesel production maintained that controls sufficient to
circumstances and conditions at their in the U.S. will increase dramatically attain the final limit do not exist, so the
mine. In the preamble to the 2001 final over the next two years, making it timeframe for compliance is irrelevant.
rule (66 FR 5713), we said, ‘‘the best increasingly easier for mine operators to Other commenters provided information
actions for an individual operator to gain access to a reliable supply of this supporting a shorter phase-in of the
take to come into compliance with the alternative fuel. Also, EPA compliant final limit.
interim and final concentration limits 2007 on-road diesel engines will begin We now believe that the three step
will depend upon an analysis of the to become available in early 2007, and phase-in of the final limit over two years
unique conditions of the mine.’’ In the their availability will grow in the that is incorporated into this final rule
same preamble (66 FR at 5859), we months and years to follow. We believe is the most appropriate approach and
indicated that, that the industry as a whole will be phase-in time period that both provides
capable of attaining compliance with for maximum protection of miners and
The final rule contemplates that an the final limits using these and other is also technologically and economically
operator of an underground metal or existing DPM control methods. We also feasible for the industry to achieve. This
nonmetal mine have considerable discretion
believe that industry-wide compliance determination was based on our
over the controls utilized to bring down dpm
concentrations to the interim and final within the timeframes established in the enforcement experience, the comments
concentration limits. For example, an final rule will not require the in the rulemaking record addressing
operator could filter the emissions from development of new technologies. feasibility, and other relevant technical
diesel-powered equipment, install cleaner- We believe that the three-step phase- information we have obtained since we
burning engines, increase ventilation, in approach for establishing the DPM issued the 2005 NPRM.
improve fleet management, use traffic limits and the wider use of alternative The key information that we relied on
controls, or use a variety of other readily fuels, improved filter technology, and to reduce the timeframe from the
available controls. A combination of several EPA compliant 2007 on-road engines originally proposed five-year phase-in of
control measures, including both engineering along with other engineering and the final limit to the two-year phase-in
controls and work practices, may be administrative controls, will enable the incorporated into the final rule included
necessary, depending on site specific
conditions.
underground M/NM mining industry as wider availability of alternative fuels,
a whole to resolve lingering particularly biodiesel, improved filter
We expected mine operators would implementation challenges and technology, and the impending
have had less difficulty in appropriately difficulties relating to the 160TC µg/m3 availability of EPA compliant 2007 on-
selecting and experimenting with final limit. road diesel engines. As previously
technology applications than we had In our 2005 NPRM, we proposed that discussed, we were also encouraged by
observed at many mines. Also, we the final DPM limit be phased-in in five the accelerating rate at which effective
expected mine operators to be able to steps over a five-year period. The choice DPM control technologies were being
more effectively address their of five-years for the length of the phase- implemented by mine operators, for
maintenance and regeneration issues in period was based on our compliance example, high temperature disposable
with DPFs, and would have had better assistance and enforcement experience diesel particulate filter (HTDPF)
access to alternative fuels. Our that indicated that mine operators were systems. We believed the development
experience revealed that many mine encountering more significant of these systems would fill a critical gap
operators did not fully resolve all the implementation issues than originally in available filter technology, as they are
complex implementation issues that anticipated. These issues affected a particularly well suited to filter the
were encountered. Some operators greater portion of the industry and exhaust from small and mid-sized
simply removed the controls instead of presented greater challenges to resolve equipment having low to medium duty
working through these implementation than we anticipated in the 2001 final cycles that were not good candidates for
issues. rule. The five-year phase-in period was passive regeneration filter systems, and
on which mine operators did not wish the 160TC µg/m3 final limit by May in the market, the net cost of biodiesel,
to implement active filter systems. 2008. We are confident compliance when the tax credit is applied, was less
These systems demonstrated high under the final rule can be attained by than the cost of standard #2 diesel fuel
filtration efficiency for EC, and did not most mines regardless of size or the in many parts of the country. As noted
increase NO2 emissions. However, when commodity produced, because none of in more detail later in this section of the
used in underground M/NM mines, these technologies are mine size or preamble, biodiesel consumption is
these systems were subject to filter commodity dependent. expected to grow as more product is
element damage due to occasional high Regarding biodiesel, the National produced, as its availability increases in
temperature exhaust exposures. We are Biodiesel Board noted in their presently underserved parts of the
now confident that these systems can be comments that the domestic annual country, and as the price gap between
used successfully in mining production capacity of biodiesel fuel biodiesel and standard diesel closes, or
applications if a heat exchanger is would increase by at least 100 million as has recently occurred, when biodiesel
placed upstream from the filter element gallons between May 2005 and May becomes cheaper than standard diesel.
in the vehicle’s exhaust system. We 2006. Based on production statistics Retrofit options for self-cleaning DPFs
have recently learned that purpose-built released on November 8, 2005 by the should increase as the manufacturers of
heat exchangers are now commercially National Biodiesel Board (http:// these filter systems become assured of a
available, either as separate units that www.nbb.org/resources/pressreleases/ reliable market both in underground
can be retrofitted to an existing HTDPF gen/20051108_ productionvolumes mining and on diesel-powered
system or as an integrated unit that 05nr.pdf) we also learned that biodiesel equipment intended for surface
combines a heat exchanger with a filter. production and consumption in the applications. In addition, two
Another example is the impending United States grew 300% in one year, manufacturers of synthetic high
availability of EPA compliant 2007 on- from 25 million gallons per year in 2004 temperature disposable filters have
road diesel engines. As noted earlier in to an estimated 75 million gallons per updated their specification sheets
this section, these engines must reduce year by the end of 2005. Biodiesel plants (discussed further in this section) to
DPM emissions by about 90% compared currently under construction will add advise mine operators of the exhaust gas
to current models, and also must meet 329 million gallons of annual temperature limitations when using
strict NOX standards. As recently as the production capacity (http:// these filters. In order to meet these
fall of 2005, we could not be certain www.nbb.org/buyingbiodiesel/ exhaust gas temperature limits, mine
these new engines would be fully producers_marketers/ProducersMap- operators can purchase commercially
compatible with underground M/NM Construction.pdf), and plants in the pre- available heat exchanger systems that
mine operational and production construction phase will add another 518 can lower the exhaust gas temperature
requirements, duty cycles, and million gallons of annual production before contact with the filter. This can
maintenance practices. With the capacity (http://www.nbb.org/ allow application of this type filter to be
introduction of EPA compliant 2007 on- buyingbiodiesel/producers_marketers/ expanded to a wider variety of
road engines less than 8 months away, ProducersMap-Pre-Construction.pdf). machines, especially ones that have low
we are now aware that the predominant Much of this added production capacity to medium duty cycle.
technology that will be used by the is expected to be on-line by 2008, and The more stringent EPA 2007 on-road
engine manufacturers to comply with some of these plants are being, or will exhaust emission standards (http://
these requirements will be DPFs with be built in areas of the country that are yosemite.epa. gov/opa/admpress.nsf/
provision for continuous or automatic currently underserved by biodiesel b1ab9f485b098972852562e7004dc686/
active filter regeneration regardless of production facilities, such as Wyoming, f20d2478833ea3bd85256e
equipment duty cycle. As noted later in Montana, Washington, California, 91004d8f90?OpenDocument) that begin
this section of the preamble, we are Colorado, and Texas in the west, and in 2007 for on-road diesel engines
confident such DPFs can be Tennessee, Kentucky, Pennsylvania, (http://www.epa.gov/otaq/diesel.htm)
implemented by mine operators. These Virginia, North Carolina, and New York will lead to an additional 90 percent
DPFs typically have very high EC in the east. This expected increased reduction in particulate emissions when
filtration efficiency approaching 99% or availability of biodiesel fuel by 2008 fully implemented. In addition, the EPA
more, and the method of filter supports our decision to phase-in the is mandating a reduction of the sulfur
regeneration eliminates implementation final DPM limits in three steps from content of diesel fuel to no more than
issues relating to whether a particular 308EC µg/m3 in May 2006 to 350TC µg/ 15 ppm beginning in mid year of 2006
machine’s duty cycle is sufficiently m3 in January 2007 to 160TC µg/m3 in for on highway diesel engines and 2010
severe to enable passive regeneration May 2008. for nonroad diesel engines. Use of this
and the perceived logistical Increased use of these fuels is fuel will enable advanced DPM control
complications associated with active on- consistent with and in support of recent technology that would otherwise have
board or active off-board filter U.S. initiatives towards greater energy been inhibited by the use of higher
regeneration. independence. On October 22, 2004, sulfur content fuel. Note that biodiesel
These recent developments and President Bush approved a tax credit for fuel already meets this 15 ppm sulfur
technologies, along with increased blenders of biodiesel as part of H.R. content requirement. Use of newer
utilization of the other engineering and 4520, also known as the American Jobs equipment with cleaner engines will
administrative controls that we have Creation Act of 2004 (Pub. L. 108–357). also increase as older equipment is
discussed throughout the remaking The tax credit for biodiesel produced retired from service.
record, such as environmental cabs with from agricultural feedstocks is equal to We anticipate that the three-step two
filtered breathing air, ventilation $0.01 per gallon per percentage year phased-in approach to establishing
upgrades, and a host of administrative biodiesel in the blended product, the final DPM limit that is incorporated
control options, will enable the essentially erasing the price difference in this final rule will provide the
underground M/NM mining industry as between biodiesel and standard needed time to resolve the logistical,
a whole to resolve lingering petroleum-based diesel fuel. In the late operational, and market-based factors
implementation challenges and summer and fall of 2005 and again in that make implementation of the final
difficulties relating to compliance with the spring of 2006, due to price swings limit infeasible at this time for the
industry as a whole. In addition, this with Johnson Matthey’s Continuously ‘‘* * * in 2002 and 2003, we found that
delay may decrease our 2001 projection Regenerating Trap (CRT) system. This over 75% of the underground mines
of the cost of compliance with the rule. system promotes regeneration at lower covered by the 2001 final rule have
During this phase-in, we will continue temperatures and is widely used in levels that would exceed the final
to work with the Diesel Partnership urban bus applications. If the results of concentration limit of 160TC µg/m3.’’ We
(discussed below) and the mining laboratory evaluations show that a are encouraged, nevertheless, that DPM
industry to help facilitate resolution of system is suitable for use in levels across the industry have been
DPF selection and implementation underground mining, NIOSH would steadily and significantly reduced from
problems for the diverse metal and continue studying this control the levels observed prior to the
nonmetal mining environment. technology with a long-term field promulgation of the 2001 rule, and they
evaluation in an underground mine. The are continuing to go down. As we stated
3. Diversity of Underground Mines
M/NM Diesel Partnership is continuing in the 2005 NPRM (70 FR 53283), DPM
Affected by the 2001 Final DPM
to investigate this and other DPF exposures in affected mines have
Concentration Limit
applications. declined from a mean of 808 DPM µg/
The M/NM mining industry has m3 (646TC µg/m3 equivalent) prior to the
approximately 168 underground mines 5. Remaining Technological Feasibility
Issues implementation of the standard, to a
that use numerous pieces of diesel mean of 233TC µg/m3 based on current
powered equipment, widely distributed In January 2001, we concluded that enforcement sampling. During the time
throughout each mining operation. technology existed to accurately sample period from November 1, 2003 to
These mines employ an array of mining for DPM with a TC method and to January 31, 2006, 1798 valid personal
methods to produce commodities reduce DPM levels to the 160TC µg/m3 compliance samples from all mines
including metals such as lead, zinc, limit by January 2006 (66 FR 5889). In covered by the regulation were
platinum, gold, silver, etc. Also, there June 2005, we concluded that it was collected. From these samples collected,
are different types of nonmetal mines technologically feasible to reduce M/ 18% of samples exceeded the 308EC µg/
that produce stone products such as NM underground miners’ exposures to m3 interim limit, and 64% exceeded the
limestone, dolomite, sandstone, and the interim PEL of 308EC µg/m3 by using 160TC µg/m3 final limit. The fact that
marble. Other underground nonmetal available engineering control technology 64% of the enforcement samples
mines produce clay, potash, trona, and and various administrative control collected from November 1, 2003 to
salt. Not only do these mines vary in the methods. However, we acknowledged January 31, 2006 are above 160TC µg/m3
commodities that they produce, but they that compliance difficulties may be
does not establish infeasibility of the
also use different mine designs and encountered at some mines due to
standard. We expect that overexposures
mining techniques such as room and implementation issues and the cost of
will continue to decline as operators
pillar mining and stope mining. Some of purchasing and installing certain types
install new equipment, address
these mines are large, complex of controls. Specifically, we indicated
implementation issues with DPFs, make
multilevel mines, while others are small that implementation issues may
use of biodiesel fuel, and install cleaner
adit-type mines. adversely affect the use of DPFs to
engines. Thus by May 2008, we would
Ventilation levels in these mines also reduce exposures despite the results
expect operators to achieve full
vary widely. Many limestone mines reported in NIOSH’s Phase I Isozone
compliance.
have only natural ventilation with Study.
variable air movement, whereas trona A number of commenters expressed Our experience reveals that little
mines have high ventilation rates to the view that our enforcement sampling progress was made in reducing DPM
dilute and remove methane gas released experience demonstrates that both the levels across the industry until the
during the mining process. There are interim DPM limit, and especially the interim DPM limit became effective.
also deep metal mines with multiple final DPM limit are technologically Once the interim limit became effective,
levels that have far less ventilation than infeasible. Some of these commenters mine operators implemented the
that found in underground trona mines. stated that our sampling data published controls they believed were necessary to
Furthermore, many metal and nonmetal in our June final rule and on our web attain compliance. Based on our
mines are located in remote areas of the site demonstrates that 90% or more of experience with other health standards,
country, at high altitudes, or are subject the regulated industry cannot comply we would not have expected the
to extremely hot or cold environments. with the January 19, 2006 limit of 160TC industry as a whole to have achieved
Considering these factors as a whole, µg/m3. compliance with the final limit before
we have found that there is no single We have carefully examined these the compliance deadline. Further, as
control technology that would be comments, the data in the June final discussed throughout this section of the
suitable and effective for all M/NM rule, and our more recent enforcement preamble, we believe sufficient
mines in significantly reducing current sampling data. We note first that the technologically feasible DPM controls
DPM levels to or below the 2001 final commenters were not questioning the exist for the industry as a whole to
DPM concentration limit of 160TC µg/m3 validity of the sampling method or comply with the final DPM limit within
by May 2006. whether our sampling data are complete the prescribed regulatory timeframe in
and representative. Our sampling and this final rule.
4. Work of the M/NM Diesel Partnership analytical methods have been validated Commenters, acknowledging that
(The Partnership) by NIOSH, and our longstanding some DPM levels at some mines
Since promulgation of the 2005 final sampling strategy that focuses on miners currently exceed both the interim and
rule, the Partnership has been engaged we believe will experience the greatest final DPM limits, indicated that the
in on-going NIOSH diesel research. One exposures is fully consistent with good existence of such overexposures was the
project involves a contract issued to industrial hygiene practice. Second, in primary justification for the rule. These
Johnson Matthey Catalyst to develop a evaluating the sampling data we commenters observed that the
system to control nitrogen dioxide (NO2) recognize that current DPM levels at rulemaking process is long, cumbersome
emissions from diesel-powered many mines exceed the final limit. In and costly and that there ‘‘would be
underground mining vehicles equipped the 2005 NPRM, we pointed out that, little point in invoking it to require the
industry to do something it is already and the number of citations. First, the measured. This situation is covered in
doing on its own.’’ commenters indicate that the data for question 29 in the enforcement policy:
These commenters continued, ‘‘It is their analysis were gathered from the 29. How will MSHA determine if a citation
settled law that MSHA ‘can impose a MSHA Data Retrieval System, which is warranted when evaluating whether I have
standard which only the most can be accessed from a link on the implemented all feasible controls? Once you
technologically advanced [mines] have MSHA internet home page. The DPM use and maintain all feasible engineering and
been able to achieve even if only in sampling data contained in this administrative controls to reduce a miner’s
some of their operations some of the database includes DPM samples exposure, implement the required respiratory
time.’ ’’ United Steelworkers, 647 F.2d at protection program and require the miner to
obtained by our inspectors during the use a respirator, you will be in compliance
1264. ‘‘baseline’’ sampling period prior to July with § 57.5060(a), even though a miner’s
We realize that some commenters will 20, 2003. In accordance with provisions DPM exposure may continue to exceed the
disagree with our decision not to of the Second Partial Settlement limit and a citation will not be issued. Keep
presently implement the final limit. Agreement, samples that exceeded the in mind that feasibility is an MSHA
However, we have carefully reviewed enforceable limit during the baseline determination. If the agency finds that you
all comments and data and believe that sampling period were not subject to failed to install, use and maintain all feasible
a number of mines have made good faith controls, or you failed to establish an
citation as long as the subject mine
attempts to implement control appropriate respiratory protection program,
operator was exercising good faith you will be out of compliance.
technology but need more time to make efforts toward developing a DPM
such technology work. It is not our compliance strategy. Thus, the Data Third, some samples that exceed the
intent to have a majority of the mining Retrieval System includes numerous interim DPM limit may be resamples of
industry apply for special extensions, or overexposure sample results that were previously cited overexposures. Our
for a significant number of miners to be not citable because they pre-dated our enforcement sampling practice requires
overexposed to DPM and have to wear full enforcement of the interim limit. that after an overexposure is cited, the
respirators. We stated in the 2005 NPRM Second, our enforcement policy for mine operator is given the opportunity
that a significant number of DPM, which is posted on our M/NM to implement engineering and/or
overexposures may: DPM Single Source page, identifies administrative controls to reduce the
certain situations where a normally subject miner’s exposure to or below the
* * * lead to another problem by requiring
a large number of miners to wear respirators citable overexposure to DPM will not enforceable limit. Once these steps have
until feasible controls are fully implemented. prompt a citation. In one case, a citation been taken, we resample the miner to
We have never had a standard that resulted will not be issued if the mine operator confirm that controls have been
in a significant percentage of the workforce can demonstrate that controls that successful in lowering the miner’s
being required to wear respiratory protection, would normally be effective in attaining exposure to or below the limit. On
and we are concerned about the impact on occasion, the resample is still over the
worker acceptance of the rule and about mine compliance with the limit have been
ordered, and the affected miner is limit, in which case, if the operator has
operators’ ability to remain productive. We made good faith efforts to apply
are interested in public comment on how wearing a suitable respirator in the
many miners would need to wear respirators context of a compliant respiratory normally effective controls, the citation
to comply with the 2001 final limit and protection program. This situation is will be extended so that additional
proposed multi-year phase-in of the final covered in question 24 in the controls can be implemented, followed
limit, and whether in each case they would enforcement policy: by another resample.
need to wear respirators for their entire work Thus, due either to controls being on
shift, whether this amount of respirator usage 24. If MSHA finds a miner overexposed to order, to issues relating to feasibility, or
is practical, and any other comments or DPM and I have a valid purchase order for to resample that continues to exceed the
observations concerning this issue (70 FR controls that have not been delivered to my DPM limit, and depending on other
53285) mine site, will I be cited for a violation? No.
If you can demonstrate to MSHA, through
factors, we may not issue a citation even
The commenters that referenced the appropriate documentation such as purchase though a sample result represents a
OSHA Lead decision also presented the orders, that you are making reasonable DPM overexposure. We intend to
results of an extensive analysis of our progress toward implementing feasible continue this enforcement practice
DPM sampling and enforcement actions engineering and/or administrative controls under this final rule and will issue
at 11 selected mines. According to these that have a reasonable likelihood of necessary compliance guidance.
commenters, these data show that we achieving compliance with the interim DPM Several commenters repeated earlier
are not adequately enforcing the interim limit within a reasonable timeframe, and you public comments regarding their views
DPM limit because there were 56 have implemented a respiratory protection that previous technological and
program meeting the requirements of ANSI
sample results that exceeded the interim economic feasibility determinations are
Z88.2–1969 that covers all affected miners,
DPM limit, but we issued only 24 DPM MSHA will not conduct compliance invalid because they were based
citations. These commenters further sampling of affected miners at that time. The partially on analyses conducted using a
assert that our failure to enforce the inspector will return to the mine to verify ‘‘flawed’’ computer simulation program.
interim limit provides encouragement that adequate progress is being made toward The economic feasibility issues are
for mine operators who have delayed full implementation of controls and/or to addressed latter in this section. The
the implementation of controls that are conduct DPM sampling based on the computer program in question, referred
necessary to attain both the interim and completion timeframe established by the to as the DPM Estimator, is a Microsoft
final DPM limit. mine operator. Excel spreadsheet program that
These commenters did not provide In the other case, if the mine operator calculates the reduction in DPM
information that indicated which mines has fully implemented all feasible concentration that can be obtained
were included in the commenter’s engineering and administrative controls within an area of a mine by
analysis. However, assuming the and the affected miner is wearing a implementing individual, or
commenters’ numbers are accurate, suitable respirator in the context of a combinations of engineering controls.
there are three plausible reasons for the compliant respiratory protection This program was the subject of a
discrepancy between the number of program, no citation will be issued even Preprint published for the 1998 Society
samples exceeding the enforceable limit if an exposure exceeding the limit is of Mining Engineers Annual Meeting
(Preprint 98–146, March 1998), and it Regarding the same commenter’s and in fact, there is no engineering basis
was fully described in a peer reviewed concerns that ventilation issues were to assume otherwise. Indeed,
article in a professional journal (Haney handled inappropriately in the 31 Mine comparisons of ‘‘Column A’’ Estimator
and Saseen, Mining Engineering, April Study, we believe the commenter used calculations and actual DPM
2000). Its algorithm is accurate, and we the term ‘‘perfect ventilation,’’ when measurements taken in mines before
have not received comments that they may have meant perfect mixing of and after implementation of DPM
challenged the mathematical basis for ventilation airflows. ‘‘Perfect controls have shown good agreement,
its calculation. ventilation’’ is a term with which we are indicating that Estimator calculations do
Although this program was criticized unfamiliar. We have never used this adequately incorporate consideration for
as ‘‘flawed’’ by several commenters, few term in this or any other rulemaking, complex mixing of DPM and air flows
specific errors in the design or and are unfamiliar with it in the context when the ‘‘Column A’’ option is used.
utilization of the program were offered. of mine ventilation engineering. The Estimator was originally
One commenter indicated that the ‘‘Perfect mixing,’’ in the context of developed with both the Column A and
ventilation systems, is a common Column B options because at the time
* * * computer model was based on
technical term that refers to an idealized it was developed (1997), the specialized
invalid assumptions of the availability of
filters that would fit the entire fleet of process in which two or more airflows equipment required for reliable and
equipment in use, and assumptions of perfect of dissimilar composition join, and in accurate in-mine DPM sampling, such
ventilation conditions throughout the which the composition of the composite as the submicron impactor, was not
industry. airflow is an instant and homogonous widely available. Consequently, few
mix of the input airflows. The issue of mine operators were able to obtain the
This commenter continues, in-mine DPM sample data required for
perfect mixing was raised by one of the
* * * no such filters were available same commenters in their public utilizing the Column A option. Though
commercially at the time of the MSHA comments on the August 14, 2003 mine operators may continue to use the
prediction, nor when the 2001 rule was proposed rule on the interim DPM limit, Estimator, we rely more on our in-mine
published, nor had any undergone testing.’’ documentation and enforcement
and we responded in detail to these
Regarding the issue of ventilation, this comments in the preamble to the 2005 experience on the feasibility of DPFs.
commenter stated that, final rule (70 FR 32920–32921). This background and detailed
The commenters believe that the explanation on perfect mixing was
* * * the assumption of ‘The Estimator’ of
perfect ventilation in mines did not exist in Estimator’s computations of DPM provided in the preamble to the 2005
reality and the rule could not be declared concentrations are valid only if engine final rule (70 FR 32920). However, the
feasible based on these incorrect emissions are perfectly mixed with the comments we received on this subject
assumptions. air flow, which they suggest does not for the instant rulemaking do not
occur in an actual mine. As discussed acknowledge or respond to the
This same commenter goes on to say background and explanation we
in the 2005 final rule preamble, these
that our technological feasibility commenters make an erroneous provided in the earlier preamble. The
determinations for all of our DPM assumption with respect to our commenters simply restate their
rulemakings, from the original 2001 utilization of the Estimator. The previous assertion that the Estimator is
final rule to this rulemaking, are invalid Estimator actually incorporates two flawed because it assumes perfect
because they are founded on analytical independent means of calculating DPM ventilation, which as noted above, we
results obtained from the Estimator. levels: one based on DPM sampling data believe was meant to refer to perfect
We have responded previously to for the subject mine, and one based on mixing.
both of these comments, and to many the absence of such sampling data. As we have maintained throughout
other criticisms of the Estimator. Where no sampling data exist, the this rulemaking, mine operators should
Regarding the availability of DPFs, we Estimator calculates DPM levels based determine the control or combination of
must emphasize that our DPM rules on a straightforward mathematical ratio controls that will be best suited to their
have always been performance oriented, of DPM emitted from the tailpipe (or mine-specific circumstances and
and that mine operators have been given DPF, in the case of filtered exhaust) per conditions, and that controls need to be
wide latitude to select DPM controls volume of ventilation air flow over that evaluated, selected, and implemented
that were best suited to their unique piece of equipment. This is referred to on a case-by-case and application-by-
circumstances and conditions. Neither in the Estimator as the ‘‘Column B’’ application basis. Nonetheless, based on
the original 2001 rule nor this current option for calculating DPM our experience, observations, and the
final rule requires DPFs as the exclusive concentrations. The commenters’’ comments received from mine
means of compliance with the DPM observation that the Estimator fails to operators, we believe to attain the final
limit. The Estimator contains provisions account for imperfect mixing between DPM limit, many mine operators that
for estimating the effect of applying DPM emissions and ventilating air flows are not yet using DPFs will have to start
DPFs, ventilation upgrades, low DPM is a valid criticism of the ‘‘Column B’’ using them, and most mine operators
engines, and other DPM controls on option. For this and other reasons, the that are already using DPFs to attain the
DPM levels in an area of a mine. At the Estimator’s instructions urge users to interim limit will have to continue or
time that we promulgated our 2001 final utilize the ‘‘Column A’’ option increase their use to attain the final
rule, however, we acknowledged our whenever sampling data are available. limit. The mining industry maintains
limited in-mine documentation on In the ‘‘Column A’’ option, the that while some operators are using
implementation of DPM control Estimator’s calculations are ‘‘calibrated’’ DPFs to control miners’ exposures to the
technology with issues such as to actual sampling data. Whatever interim PEL, it is infeasible for them to
retrofitting and regeneration of filters. complex mixing between DPM further reduce miners’ exposures
Consequently, we committed to emissions and ventilating air flows through expanded use of DPFs.
continue to consult with NIOSH, existed when DPM samples were However, we maintain that feasibility
industry and labor representatives on obtained, are assumed to prevail after difficulties encountered with the use of
the availability of practical mine worthy implementation of a DPM control. This DPFs can be resolved within the
filter technology. is an entirely reasonable assumption, prescribed timeframe offered in this
final rule, and that the greatest other activity having a less severe duty would typically have a greater negative
impediment to more widespread use of cycle, the filter may not passively effect on production than if it occurred
DPFs throughout the industry is the regenerate, and backpressure could at the end of a shift. Active regeneration
need to overcome implementation build up. Likewise, if the subject DPF systems are normally sized so that
challenges and difficulties relating to equipment experiences a maintenance the filter has sufficient capacity for the
specific pieces of mining equipment. related problem that causes an increase host vehicle to operate over its normal
For example, as the final limits become in the level of ‘‘engine out’’ DPM duty cycle for at least a full shift or
effective, some mines that were possibly emissions, the rate of DPM buildup in longer. In some cases, especially when
using one or two DPFs on large the filter could exceed the capacity of a machine with an older, high emission
horsepower haul trucks may have to the filter to passively regenerate. In such engine needs to be filtered, a filter
install more DPF systems on other types cases, excessive engine backpressure having sufficient capacity to allow for a
of machines, such as loaders or support could build up in less than a working full shift of machine operation may be
and utility equipment, in order to attain shift. If the equipment is provided with too large to fit in the available space on
the final limit. a means for monitoring backpressure, the machine. For this reason, most DPF
As discussed extensively throughout and the equipment operator observes manufacturers do not recommend DPF
the rulemaking record and as we engine backpressure rising to excessive installation on older high emission
explained in detail in the 2005 NPRM, levels, corrective action can be taken engines. Some mine operators who have
mine operators continue to prefer before engine or filter damage occurs. faced this dilemma have opted to
passive DPF regeneration systems over Successful implementation of passive compromise by installing a smaller
active regeneration systems. Passive DPF systems has been reported where filter. The result is DPM overloading.
regeneration is the process where the the mine operators have determined that DPM overloading leading to excessive
temperature of the exhaust gas produced a machine has sufficient exhaust gas backpressure on the engine is the main
by the engine is sufficiently high for a temperature for passive regeneration problem that mine operators experience
sufficient percentage of the working and exhaust backpressure is being when the DPF installation is not correct
shift to burn off the collected DPM on monitored. for the application and duty cycle.
the DPF. In order for passive If passive regeneration is infeasible Possible feasible corrective actions
regeneration to be a viable option, filter due to an insufficient duty cycle, active include utilizing a larger DPF or a lower
regeneration has to occur frequently regeneration may be a feasible DPM emission engine, or both. As noted
enough to prevent the DPM that alternative. Active regeneration depends later in this section of the preamble,
accumulates in the filter from causing on an external heat source for burning installation of a new, low-emission
backpressure on the engine that exceeds off the DPM collected in a filter. Some engine, in addition to facilitating use of
the engine manufacturer’s backpressure mine operators commented that it is not a reasonably sized DPF, can cut DPM
specification. Passive regeneration is feasible for them to utilize active emissions by up to 90% or more, and
normally preferred by mine operators regeneration due to the physical size of their greater operating efficiencies can
because the DPF will regenerate in the filters, machine downtime, and/or the reduce maintenance costs and lower
normal course of equipment operation, cost associated with building and fuel usage by 10% to 15% compared to
with no interruption to mine production equipping underground regeneration older technology high emission engines.
activities and no equipment downtime stations required for active DPF Regarding commenters’ concern about
required for filter regeneration. Also, regeneration. We disagree that these the physical size of DPFs, if the DPF for
passive regeneration occurs without the factors render active regenerating DPF a particular piece of equipment is too
need for intervention by the equipment systems infeasible. As discussed large to handle or too large to fit in the
operator, and it does not require any throughout the rulemaking record, and space available on the equipment, the
special external equipment or facilities. later in this section of the preamble, exhaust could be divided into two
However, many pieces of mining filter size and machine downtime issues branches fitted with smaller sized filters
equipment do not have engine duty relate to implementation challenges and on each branch, or as noted above, the
cycles that will presently support difficulties which can impact feasibility engine could be replaced by one with
consistent passive regeneration. This of compliance with the final limits. We lower DPM emissions that can be
problem will take more time for believe these factors can usually be effectively filtered by a correspondingly
individual mine operators to resolve. effectively addressed through proper smaller DPF.
If a passive DPF loads up with DPM, system selection and deployment, as Since 2001, a number of older, high
but the exhaust temperature is not described below, which take time to DPM emitting engines have been
sufficient to ignite and burn off the effect. We also believe the deployment replaced with new, low DPM emitting
accumulated DPM, the backpressure on of an active DPF system is economically engines, either through direct engine
the engine will increase. Prolonged feasible under the prescribed time replacement into existing equipment or
engine operation in excess of the frames for the final limit. Economic through the acquisition of new
manufacturer’s backpressure feasibility is discussed in detail later in equipment, but not as many as we
specifications can cause engine and DPF this section in this preamble. predicted in 2001. From our
damage. Therefore, it is strongly Engine emissions and exhaust flows enforcement experience, we believe this
recommended that when passive affect the size of the DPF that needs to has occurred in mostly the larger
regeneration DPF systems are installed, be installed. These factors are important horsepower engines, greater than 150
a means for the machine operator to considerations for both passive and hp, in production equipment. This
monitor the engine’s exhaust active regeneration. If the DPF is equipment is typically turned over more
backpressure should be included. Such undersized for a particular application frequently because it has more severe
a provision is important even on due to high DPM emissions or high duty cycles, is worked harder, and
equipment where the normal duty cycle exhaust flows, a passive or active DPF typically has a shorter life than smaller,
easily supports passive regeneration. system may become overloaded, lower horsepower support equipment.
For example, if a piece of equipment on requiring the filter to be removed from High horsepower production equipment
which a filter normally passively service for regeneration. If such an also typically accounts for the greatest
regenerates is used temporarily for some interruption occurred mid-shift, it proportion of DPM produced in the
mine, so replacing these engines was the element damage. For ceramic and engine, and systems like the HTDPF and
highest priority at most mines. Thus, the metallic filter element type DPFs, heat diesel particulate ReactorTM are
smaller engines normally found in exchangers are neither required nor particularly well suited to installation
support equipment often have older desired. on small and medium sized production
engines with higher DPM emissions per Several commenters stated that we and support equipment that had been
horsepower than the newer and larger admitted to implementation problems problematic for some mine operators.
production equipment. with DPF systems in the preamble to the No implementation issues in regards to
We estimated in the 2001 final rule proposed rule. We agree with these selection of the DPF media, sizing, or
that 50% of the support equipment commenters that we did express regeneration type are expected for EPA
would probably need DPFs for concerns about implementation issues compliant 2007 on-road engines. As
compliance with the final limit (66 FR with DPFs, and that these concerns, discussed previously in this section, the
5889–90). The higher DPM emissions along with concerns about engine will have a DPF installed in the
from these engines, however, can implementation issues with other DPM vehicle when purchased by the mine
complicate the expanded use of DPFs on engineering controls led to our decision operator.
this equipment. It is our belief that the to propose delaying the effective date of DPF systems are a more effective
mining industry will need additional the final limit of 160TC µg/m3 until control technology for reducing EC than
time to further evaluate the proper January 2011. We continue to believe TC. In order to comply with the final
sizing of both passive and active that a delay to the effective date for the limit, we expected that most mine
regeneration DPF systems on this final limit is necessary due to feasibility operators would need to add to the DPM
equipment. Consequently, we expect the considerations. However, as we controls they had previously
implementation issues relating to DPFs, explained earlier in this section of the implemented for compliance with the
particularly the selection of appropriate preamble, based on our enforcement interim limit. We also anticipated that
DPFs for a given application, experience and comments and other many mine operators that had
regeneration issues, filter maintenance, data in the rulemaking record successfully attained compliance with
etc. may extend over a larger portion of addressing feasibility since we issued
the interim limit without DPFs would
the mining industry as operators work the 2005 NPRM, we have subsequently
need to utilize DPFs to obtain
toward compliance with the final limit. determined that delaying the final limit
Although we believe these compliance with the final limit.
until 2011 is not justified. Primarily due
implementation issues are sufficient to to wider availability of alternative fuels, We acknowledged in previous
warrant the additional time offered in particularly biodiesel, improved filter preambles that DPFs may not be the
this final rule, we are nonetheless technology, and the impending optimal solution for all machines,
confident these issues can be effectively availability of EPA compliant 2007 on- especially machines equipped with
resolved within the compliance road diesel engines, we believe the dirtier engines. But we have also
timeframes established in the final rule. rulemaking record supports the three advised that machines with older,
For example, EPA compliant 2007 on- step phase-in of the final limit over two dirtier engines should be replaced or re-
road engines will be provided with years, with the final limit of 160TC µg/ powered with cleaner engines, and then
engine manufacturer supplied DPF m3 becoming effective in May 2008. if necessary, be equipped with DPF
systems that will regenerate This is the approach that is incorporated systems.
continuously or automatically into this final rule, and we believe it We continue to emphasize to the
regardless of duty cycle, thereby greatly provides for the maximum protection of mining industry to utilize our DPM
reducing implementation issues for the miners that is technologically and Single Source Page to obtain
owner. Another example is the HTDPF economically feasible for the industry to information to assist with installation of
with integral heat exchanger. This achieve. DPF systems. This information stresses
recently commercialized technology As discussed earlier in this section of that DPFs require the engine to be
will enable filtering the exhaust from the preamble, recent developments in maintained through a good maintenance
small to mid-size equipment with low to the three key areas of biodiesel, program and to monitor the exhaust
medium duty cycles. In addition to improved filters, and EPA compliant backpressure in order to prevent the
these and other new developments, 2007 engines, along with the application DPF system from becoming overloaded
competitive pressures will force the of a variety of other existing DPM with DPM. Minimizing these problems
manufacturers of existing DPF systems controls, will enable compliance by the can help prevent premature DPF or
to make incremental product industry as a whole significantly sooner engine failure, which affect feasibility.
improvements over time. than was proposed in the September NIOSH commented that
Note that high engine exhaust 2005 NPRM. Biodiesel, improved filters,
temperatures are an implementation Although adverse health effects occur at
and EPA compliant 2007 engines can be
the proposed concentration limits and below,
issue only for disposal particulate filter used by any size mine producing any NIOSH recognizes that all factors, including
element type DPFs. Ceramic and M/NM commodity, and these technical and economic feasibility must be
metallic filter element type DPFs can technologies are not subject to many of considered by MSHA in developing an
tolerate the normal range of exhaust the difficult implementation issues that exposure standard. NIOSH is aware of the
temperatures from any diesel engine. In have slowed the adoption of some DPM ‘implementation and operational difficulties’
fact, passive regenerating DPFs depend controls. For example, biodiesel can be currently facing the metal and nonmetal
on high exhaust temperatures to initiate used in any diesel engine with mining industry presented in MSHA’s
the regeneration process. Where high elastomeric fuel system components preamble, Section IV. Technological
exhaust temperatures could potentially that are biodiesel compatible, and any Feasibility (page 53282). A phase-in period
may provide time to resolve such issues.
occur, but where the user wishes to non-compatible components can be

Requiring control technologies before mine
implement a disposal particulate filter easily replaced. No other engine or operators have had sufficient time to work
element system, the use of a heat equipment modifications of any kind through selection and implementation
exchanger upstream from the filter are required. Improved diesel problems may create hazards and adverse
element is required to lower the exhaust particulate filters are commercially health effects, such as the elevated levels of
gas temperature and prevent filter available for retrofit to any size diesel NO2 experienced when some PT-catalyzed
diesel particulate filters (DPFs) have been associated with the circumstances µg/m3 interim PEL.’’ (70 FR 32928) The
used in poorly or marginally ventilated areas. unique to each mine.’’ This three step NIOSH work confirmed that DPFs can
NIOSH also recognizes that the mines phase-in of the final limits will provide reduce DPM to MSHA’s DPM limits. As
covered by this proposed standard have
the necessary time for mine operators to stated previously, as the final limit is
unique designs and operational differences
presenting unique challenges in controlling overcome these technical and reduced over the time frame specified in
and reducing diesel emissions. For some operational issues, since we believe that this final rule, the mine operator can
metal and nonmetal mines, targeted DPFs are now more readily available implement additional DPF systems (or
reductions in exposures of underground and DPF implementation issues can be other DPM control technologies) to
miners to DPM below the 400 µg/m3 TC or resolved. further reduce the DPM exposure. The
308 µg/m3 elemental carbon (EC) current This commenter also agreed with us NIOSH Phase II study and MSHA’s
limit may be achieved only through that mine ventilation, maintenance, Greens Creek study as discussed in the
implementation of complex, integrated cleaner engines or use of alternative
strategies and state-of-the-art control
June 6 preamble (70 FR 32928—32929)
technologies.
fuels, such as biodiesel were effective showed reductions in EC.
The first steps to control diesel emissions DPM control measures. However, the The same commenters stated that the
are fundamental changes to improve mine commenter stated that when these Phase II study showed that the
ventilation and diesel engine maintenance methods are insufficient to achieve efficiencies of the DPF did not always
practices, along with the introduction of compliance, more advanced control agree with laboratory studies. However,
cleaner engines or the use of alternative fuels, technologies would be needed, such as the commenters failed to acknowledge
such as biodiesel, when practical. When DPF systems. Gaining extensive that the comment was directed towards
these are insufficient to achieve compliance, experience with implementation and the DPF systems performing better than
more advanced diesel emission control
technologies, such as DPF systems, may be
operation of DPF systems on production laboratory data, especially for EC
necessary to achieve compliance. vehicles would greatly assist in reductions. We highlighted this finding
resolving some of these issues. The from NIOSH’s Phase II study in the
We have considered the technological commenter further stated that to ensure preamble to our 2005 final rule (70 FR
and economic feasibility of achieving success of the phase-in period, 32928).
the final limits specified in this final individual mine operators or a Several commenters continued to
rule as discussed throughout this consortium of mine operators or other state concerns with the use of catalyzed
preamble. The three step phase-in partnerships should have compliance ceramic DPF systems due to increased
approach allows mine operators more plans detailing their integrated NO2 levels. We discussed this issue
time to work towards implementation of approach to reducing DPM levels in thoroughly in the preamble to the 2005
DPM control technologies. We agree terms of maintenance, ventilation, fuels, final rule (70 FR 32928–32929). We
with NIOSH that the first steps that the control technologies, retrofitting, and concluded then, and we believe the
mine operators took to lower DPM monitoring. evidence is still persuasive, that the NO2
levels were changes to engines, We agree with the commenter that the issues discussed in the NIOSH Phase II
maintenance practices, ventilation final limit does require mine operators studies were related to deficient
systems, and to a lesser extent, to continue implementing the current ventilation in the areas where the
alternative fuels. As we have discussed controls needed to meet the interim testing occurred. The results of the
in this preamble, these efforts have concentration limit, however, in order Greens Creek study, which also
lowered miners’ exposure to DPM as our to meet the final limit, more controls evaluated heavily platinum catalyzed
enforcement sampling has shown. may need to be implemented. If DPF DPFs, showed a possible rise in NO2;
Even though NIOSH refers to DPFs as systems are needed, then the mine however the small increase detected
‘‘more advanced diesel emission control operator will need to continue work to made it unclear as to the cause
technologies,’’ some mines have already properly install and maintain DPF (preamble to the 2005 final rule, (70 FR
implemented DPFs in order to comply systems to manufacturers’ 32884 and 32921)). Even if the NO2
with the interim standard. These same specifications. increases at Greens Creek were caused
mines will most likely continue using Some commenters referred to the entirely by the catalyzed DPFs, the rise,
DPFs, plus add additional DPFs or other NIOSH Phase I and II studies, stating which was about 1 ppm downstream
DPM controls such as biodiesel, to meet that they were successful in showing from stopping operations involving one
the final limits. However, we agree that that the DPM controls, especially DPF loader and two or three haulage trucks
the final limits will require a larger systems, work in reducing DPM. totaling over 1,000 horsepower, was
segment of the mining industry to However, these commenters believed manageable due to effective auxiliary
implement DPFs and alternative fuels. that NIOSH did not provide reliable ventilation. We continue to
We agree that underground metal and data to indicate that the selected filter acknowledge that highly catalyzed
nonmetal mines present unique designs technology would provide the necessary platinum ceramic DPFs have the
and operational differences which affect reductions of DPM in actual mining potential to generate higher levels of
the application of DPM controls. This applications. We responded to the NO2 than the baseline emissions from
three step phase-in approach provides NIOSH Phase I and II studies in the the subject diesel engine. However,
the time for mine operators to learn 2005 final rule. We noted the successful when such DPFs are used in
more about advanced control DPM reductions that were achieved conjunction with proper ventilation,
technologies with regards to from the DPM controls, especially DPF, NO2 has not increased to hazardous
implementation issues. in the Isozone study of Phase I. We levels. As discussed previously in this
NIOSH further referenced a June 25, further reviewed the work done by section, NIOSH commented that
2003 letter to the Assistant Secretary NIOSH in the production area of the increased NO2 levels occurred in poorly
from Dr. John Howard, Director, NIOSH, mine in Phase II. We maintain as we did or marginally ventilated areas with the
relating to DPFs. NIOSH stated that in the preamble to the 2005 final rule use of some catalyzed DPFs.
although DPFs ‘‘* * * are commercially that ‘‘the Phase II study helped to Several commenters agree that
available, the successful application of confirm existing agency data that shows progress has been made with the
these systems is predicated on solving that it is technologically feasible to application of ceramic DPF systems that
technical and operational issues reduce miners’ exposures to DPM to 308 regenerate passively on larger
horsepower production machines. The on our respective Web sites. The Filter and regardless of equipment duty cycle.
DPF systems have been shown to be Selection Guide (detailed in the Another option is to swap out filters
highly efficient in collecting DPM and preamble to the 2005 final rule (70 FR instead of regenerating them on-board
mine operators have reported that they 32922)) that was designed by NIOSH the equipment. Between shifts, a used
do passively regenerate on the larger and MSHA continues to be an important filter can be removed from a piece of
horsepower, production machines. The tool for understanding the steps that equipment and swapped for a
production machines operate at a heavy must be taken to evaluate, select, and regenerated filter. The used filter can
duty cycle that corresponds to high install a DPF system, especially one that then be placed in a regenerating
exhaust gas temperatures for a sufficient depends on passive regeneration. appliance so it will be ready by the
portion of the shift. This allows the DPF The same commenters also stated that beginning of the next shift, and the
to regenerate passively and burn off the when passive DPF systems were not equipment can be returned to duty
collected DPM, thus keeping the DPF feasible for some types of machines, without further delay. Using this
below the engine manufacturers’ especially those with medium to low implementation method, equipment
maximum allowable exhaust duty cycles, they began evaluating downtime to accommodate DPF
backpressure. active regeneration systems. In contrast regeneration is measured in minutes
One mine operator provided a list of to passive regeneration systems that rather than hours.
their DPF systems that have been in depend on the high temperature of the The technology for a variety of active
operation up to 9000 hours. The DPF engine’s exhaust for burning off the systems continues to be commercially
systems were supplied by two different DPM collected in the DPF, active available. Implementation of active
DPF manufacturers, but were both systems use an external heat source to regeneration systems does require the
designed for passive regeneration. This initiate the burning process for DPM. mine operator to look at the logistics of
commenter stated that 13 of their 17 These commenters stated they have time, place, and manpower to
haul trucks were equipped with passive purchased some active systems for successfully perform the task. Those
regeneration DPFs and they are evaluation. However, they question the logistical decisions have been outlined
currently evaluating 4 more units on feasibility of utilizing active DPF in the NIOSH Filter Selection Guide.
their haul trucks. According to the systems in their mines due to a variety However, the mechanism for
information submitted by this of logistical and operational concerns. installation of a DPF system with active
commenter, they have plans for For example, they point out that the regeneration is less complex than
installation of DPFs on 6 of their mining production cycle at many mines passive regeneration because the
loaders. The commenter stated that the does not provide for sufficient machine location of the DPF on the machine,
process of achieving DPF reliability has downtime to stop the machine and take distance of the DPF from the exhaust
been arduous, and required much it out of service in order to ‘‘plug’’ the manifold or turbocharger, and the
discussion and work with the DPF machine into a regeneration station for orientation of the DPF are less
manufacturer. regeneration of the DPF to occur. These important. On passive regeneration
Another mine operator also stated that commenters also stated that if they tried systems, the DPF must be as close as
32 passive regeneration DPF systems to change out DPFs, then the number of possible to the outlet of the exhaust
have been installed with an average life DPFs they would need to maintain on manifold or turbocharger to utilize the
of the DPF system from 3000–4000 hand to store and rotate would be both maximum exhaust gas temperature. On
hours. The operator stated that the cost prohibitive and storage space active regeneration systems, this is not
success has been with haul trucks and consuming. These commenters an installation requirement.
they are working on evaluating the indicated that machines that return to We continue to believe that for
installation of this type DPF on LHD’s. the surface at the end of the shift would installation of either type of
Yet another mine reported installing be candidates for active regeneration. regeneration system, engine
four passive DPF systems on machines We agree that using active systems maintenance is vital. The engine must
and the exhaust backpressure quickly that require prolonged machine be maintained in good working
exceeded the manufacturer’s downtime for regeneration may not be condition. The engine must be
specification for exhaust backpressure. feasible at all mines. However, at mines maintained to limit excess DPM being
The commenter stated that the DPF that only operate for a single shift or emitted from unburned fuels or oil.
would not passively regenerate, have a gap between shifts for blasting Intake filters must be maintained and
requiring the mine to remove them for gases to clear, for example, regenerating the engine’s intake air restrictions and
cleaning. active filters between shifts would be exhaust backpressure must be
The experiences described by these more feasible. For mines that operate maintained to the manufacturer’s
three mine operators continue to show around the clock, shutting down a key specifications.
that DPF system selection and piece of production equipment for filter In addition, the exhaust gas
installation must be carefully evaluated. regeneration may present a problem. backpressure measurement provides
However, overall it appears that a While such an implementation scheme critical information on the amount of
number of mine operators have been would undoubtedly adversely affect DPM loading on the DPF. Engine
successful in installing passive mine production, the commenters did manufacturers and DPF manufacturers
regeneration DPF systems on machines not provide information or data provide maximum limits that should
that have high duty cycles and are sufficient to establish the significance of not be exceeded to ensure proper engine
therefore acceptable for passive the effect to determine the feasibility of and DPF operation. The exhaust
regeneration, particularly haulage trucks the method. backpressure ports and devices must be
and some loaders. We continue to More importantly, however, we have maintained. This has become a special
advise mine operators that DPF systems continued to recommend alternatives to concern in the underground coal sector,
that utilize passive regeneration must be this implementation scheme for active prompting the Coal DPM Partnership to
carefully evaluated and well-maintained DPFs. For example, the fuel burner form a Subcommittee to investigate the
for their successful operation. Both system regenerates the filter during proper procedures to monitor
MSHA and NIOSH continue to post normal equipment operations, without backpressure and the proper type of
extensive information on DPF systems intervention by the equipment operator, equipment to use. MSHA and NIOSH
are working with labor and industry on should be evaluated and engineered into a wider variety of vehicles that have
this issue. Recommendations from this the machine prior to installation. The duty cycles that could create exhaust
subcommittee will be shared with both DPM output of the engine should also gas temperatures at the DPF media in
coal and M/NM industry personnel be known prior to installation, and the excess of 650 °F. Instead of the machine
since the information will be pertinent condition of the engine is an important manufacturer or mine operator being
to both mining sectors involved with factor that can change and can severely concerned that the engine’s duty cycle
DPF systems. These recommendations affect DPF life. However, the engine does not exceed 650 °F, a heat
will cover all types of DPF systems. DPM output and the condition of the exchanger system can be built in to the
We believe that in place of ceramic engine can be altered. If DPF life is too exhaust system prior to the DPF to limit
DPF systems that require passive or short due to an older engine, then an the exhaust gas temperature at the filter
active regeneration, machines could be engine replacement with a newer, media to 650 °F.
installed with disposal DPF technology. cleaner engine can usually be done. Several commenters made reference
These systems are commercially Engine maintenance can increase DPF to a joint NIOSH Partnership study at
available and include exhaust heat life by minimizing burning oil or the Stillwater Mine. This study did a
exchangers to limit the exhaust gas unburned fuels. paper analysis of the equipment and
temperature at the DPM media. These Underground coal mine operators based on some basic information,
systems are available for all horsepower faced these same implementation issues assigned each piece of equipment into a
ranges typically found in M/NM mines. when they began using disposable DPFs category to describe the potential for
From the comments received to the to comply with the coal DPM rule. They DPF application. The rulemaking record
proposed rule, mine operators have resolved these issues by replacing high does not include the results of this
installed synthetic high temperature DPM emitting engines and improving study, and it is our understanding from
disposable particulate filters (HTDPFs) engine maintenance procedures. The NIOSH that this study is incomplete at
as a means for DPM control. HTDPFs same methods for extending DPF this time. Therefore, this study was not
were initially used on permissible operating life are applicable to M/NM considered by us in reaching our
machines in underground coal mines to machines and are discussed in the DPF determination in this final rule.
further reduce the chance of a filter fire Selection Guide. However, we do believe that the type
that could occur more easily with paper The DPM overloading issue also led to of approach used by NIOSH is a good
filter media. Since that first introduction DPF ignition events. These concerns beginning step that each mine should
on permissible machines, manufacturers were raised by the underground coal take when considering the use of DPF
have developed systems to use HTDPFs mine operators. In response to this, we control technology. Once a mine
on non-permissible machines in performed an extensive investigation on operator categorizes its equipment based
underground coal mines and on the causes of DPF ignitions. We on general assumptions, they could then
machines in underground M/NM mines. determined that when the DPF collected begin a more in-depth study of each
The HTDPFs were tested by NIOSH in the DPM, oils and unburned fuels were piece of equipment that may need a DPF
the Isozone studies and shown to be also collected on the media. When the system installed, and finally, determine
effective in DPM EC reductions. DPF was exposed to exhaust gas which system or systems could be
One commenter stated that they temperatures that were in excess of 650 feasible. Again, the NIOSH Filter
estimated the DPM reduction to be °F, the DPM, oils, and unburned fuels Selection Guide provides mine
about 60–65% with the use of HTDPFs. ignited, but not the DPF media. operators with a step by step approach
We would consider that reduction However, when the burning occurred, to determine the best ‘‘fit’’ for a machine
estimate to be low (assuming the data temperatures were high enough to melt to reduce the DPM emissions.
the commenter was referring to was EC) the DPF media. When paper filter media One commenter discussed feasibility
when compared to our laboratory test was involved, the paper filter media issues with applying DPF systems to
that showed up to 80–83% percent also caught fire. their mine’s equipment which included
reduction of whole DPM and higher To help resolve this issue and to Schedule 31 equipment. The commenter
efficiencies for EC. provide the mine operators with more stated
However, several commenters stated awareness of the potential for an
that the synthetic HTDPF systems were ignition of a DPF, we worked with DPF FMC’s fleet falls into the category that does
removed from the machines that they not support DPF’s due to duty-cycle and
manufacturers that produce synthetic
manufacturers specifications. To date, FMC
were originally installed on when the HTDPF systems. The DPF has found only one filter manufacturer that
DPF ‘‘burned out’’ and melted. The manufacturers agreed with us to update is willing to try their disposable filters on our
commenters stated that the backpressure their DPF system specifications to fleet. Specific challenges/concerns include
would rise quickly when the DPF specifically advise their customers that flammability of disposable filters, low engine
loading exceeded the specified loading the synthetic HTDPF cannot be used duty cycle, and Schedule 31 hurdles that
capacity of the DPF media size. When where the exhaust gas temperature at have yet to be addressed.
this occurred, there was the potential for the filter media exceeds 650 °F. We The commenter referenced the NIOSH
a DPF ignition. posted on the internet links to these work conducted at the Stillwater Mine
One of these commenters also stated updated specification sheets from the where NIOSH categorized equipment for
that the use of HTDPF was discouraging manufacturers. DPF application as was discussed
because the DPFs were only lasting 4– To help further resolve this issue, above.
10 hours, requiring filters to be manufacturers have developed exhaust We believe that the issues raised by
discarded and replaced every two shifts gas heat exchangers, both air to air and the commenter have been fully
or less. It is well known that the air to water type heat exchangers that addressed in this preamble and in
operating life of a disposable DPF is can either be installed in the exhaust previous preambles which include
mainly due to the size of the DPF prior to the DPF media or be built in as flammability of disposable filters and
installed, the amount of DPM that the part of the DPF canister to maintain the the types of DPFs that can be used based
engine emits, and the condition of the exhaust gas temperature at or below 650 on an engine’s duty cycle.
engine. Any one of these parameters can °F. The addition of a heat exchanger The commenter references his
affect DPF life. The size of the DPF makes the use of the HTDPF feasible on Schedule 31 equipment. Schedule 31 is
terminology used to refer to permissible will include DPF filters and NOX more universal in the mining industry.
equipment approved by us for use in catalysts. These systems will most likely The mining industry should use its
gassy mines. Similar types of diesel require some type of active regeneration resources during this delay to resolve
powered equipment that are used in this systems to account for low duty cycle implementation issues on mining
mine are also used in underground coal on-highway vehicles. However, at this vehicles to meet the final limit.
mines in areas where methane gas may time, most engine manufacturers have We are aware of the following DPF
be present. We do not agree with the not released the technical details of technologies that are either
commenter that DPF systems are not their systems since they are still in on- commercially available or being further
available for permissible equipment. going developments to prepare for the investigated by MSHA and NIOSH.
Underground coal mines have been 2007 model year. A combination of Many of these systems have been
retrofitting similar permissible passive and active regeneration will discussed by us in preambles for the
equipment since 2001 to reduce DPM most likely be used to account for the 2005 Final Rule (70 FR 32935) and the
emissions from this type of equipment. various duty cycles of non-road 2005 NPRM (70 FR 53284) and we are
To date, approximately 300–400 equipment. The EPA DPM standards updating the discussions to include the
disposable type DPF systems have been will be forcing more DPF technologies new information that we have. The
installed on permissible equipment in to the commercial market starting in extension of time offered by this final
coal underground. We believe that the 2007 which will be available to the rule will allow for more work to be done
equipment referred to by the commenter mine operators during the extension of on these promising systems for
can be installed with a DPF system. We time allowed for in this final rule. implementation into the mining
have information posted on our Web Recently, MSHA and NIOSH have industry market.
site on retrofitting permissible been in discussions with an automotive a. ArvinMeritor System. In the 2005
equipment. Companies such as Dry manufacturer of a commercial pickup proposed rule, we noted that the
Systems Technologies (DST), DBT truck and the diesel engine ArvinMeritor system, which utilizes
Australia Pty Limited, and EJC Mining manufacturer that supplies the diesel active regeneration of the DPF, offers
Equipment have been supplying this engine for the pickup truck. Currently, great potential for underground mines
type of DPF system to the underground many underground coal mines and in further reducing DPM exposures. The
coal permissible fleet. In addition, mine some M/NM mines use commercially ArvinMeritor system utilizes an on-
operators can contact our Technical available automotive type pickup board fuel burner system to regenerate
Support Approval and Certification trucks. In 2007 model year, the new DPFs. This system actively regenerates
Center for information related to trucks will be sold with DPF systems in the filter media during normal
retrofitting permissible equipment. order to comply with the EPA on- equipment operations by causing the
One manufacturer testified at the highway standards. However, some fuel to ignite the burner and thereby
public hearings that the DPF systems underground coal operators became increase the exhaust temperature in the
that they supply to the underground concerned with the new DPF systems on filter system. Consequently, this system
coal permissible machines are available these pickup trucks. The concern relates does not require the host vehicle to
in non-permissible (non explosion to regeneration based on a mining duty travel to a regeneration station to
proof) configurations for machines in cycle. The manufacturers also have not regenerate the DPF. The condition of the
M/NM mines. They stated that the yet released all the details on the DPF DPF is monitored via sensors. We also
technology can be configured for all systems. Engine and machine stated that while this product was
horsepower machines and be designed manufacturers are doing extensive successfully evaluated at Stillwater’s
for numerous machine configurations. testing for on-highway applications. Nye Mine, we recently learned that the
Another area of DPF systems that we MSHA and NIOSH have agreed with the manufacturer had decided to
have been investigating is the use of on- manufacturers to perform laboratory and concentrate on working with Original
board regeneration. On-board field test on the new pickup trucks once Equipment Manufacturers (OEMs)
regeneration normally operates in the trucks are available for mining. This where they would be selling 50 units or
principle between a passive system and work will be done during the extension more to one customer rather than selling
an active system. In this type of DPF of time allowed for in this final rule. one or two units to individual
system, some passive regeneration This type of technology will become customers for retrofit application. It is
occurs depending on duty cycle, more widespread, even in the mining our current understanding that this
however there is a mechanism for active industry, as the EPA DPM emission system is still commercially available
regeneration when the duty cycles are standards become effective. In addition, for purchase in smaller quantities from
not sufficient. The active regeneration the California Air Resources Board ArvinMeritor distributors and local
may be in the form of catalyst, electrical (CARB) continues work with their dealers.
system, or fuel burner type system. ‘‘Verification Procedure, Warranty and b. Johnson Matthey’s CRT System.
Several of these systems were discussed In-Use Compliance Requirements for In- The Johnson Matthey CRT System is a
in the preamble to the 2005 NPRM such Use Strategies to Control Emissions DPF utilizing passive regeneration. As
as the ArvinMeritor. Other systems are from Diesel Engines’’. This program stated above, passive regeneration works
discussed below that we have become verifies DPF systems for installation on by using the exhaust gas generated by
aware of since the preamble to the machines in California. CARB maintains the engine to burn the DPM. Normally,
proposed rule. a Web site at: http://arb.ca.gov/diesel/ DPF manufacturers utilize catalyst
DPF systems using this type of verdev/home/home.htm. technology to lower the temperature
technology are becoming more readily Most of the systems being developed needed for successful passive
available and feasible due to the for EPA have also been developed for regeneration. By lowering the exhaust
upcoming EPA 2007 on-highway California’s program. Some commenters gas temperature needed for passive
emission standards. We are aware the stated that we should wait till the EPA regeneration, a broader range of
EPA emission standards are more standards and technology becomes machines will have the necessary duty
stringent for reducing both DPM and available. However, we believe that the cycle to generate the exhaust gas
NOX. Information on systems being delayed timeframe of the final limit will temperature needed to burn the DPM.
designed for 2007 on-highway machines permit the DPF technology to become However, when a platinum coating is
used as the catalyst, it can also increase become available. NIOSH has also Systems, DCL International, Engine
the nitrogen dioxide (NO2) emissions contracted with the Center for Diesel Control Systems, Catalytic Exhaust
from the engine exhaust. In mines with Research to do additional testing on the Products, Nett Technologies, Donaldson
low ventilation rates, the increased NO2 Reactor and the Synpar 200 synthetic Company, and Filter Services and
emissions can also result in increased diesel fuel at this time. Testing Corporation. We understand
NO2 exposures to potentially dangerous d. Fleetguard. This company has that there are other DPM control
levels for miners. We discussed this partnered with other DPF companies technologies that could be available but
issue in the 2005 final rule (70 FR that market such products as a the other manufacturers have not
32924–26). Longview Lean NOX Catalyst DPF. The contacted us. We continue to discuss
In 2004, the NIOSH Pittsburgh Longview Lean NOX Catalyst combines and evaluate the latest DPM control
Research Laboratory issued a contract to NOX reduction plus a DPM reduction technologies for applicability with the
Johnson Matthey to develop a system system. mining market through this Technical
that can regenerate at lower exhaust gas One underground coal mine operator Support Directorate.
temperatures and control NO2 is planning on receiving a unit to h. Diesel Engine Replacements.
emissions. The system is based on investigate and install on a piece of Several commenters stated that the
Johnson Matthey’s CRT system and mobile equipment. The system specifies mines have been replacing older, dirtier
promotes regeneration at lower a minimum exhaust gas temperature of engines with newer, EPA Tier engines.
temperatures. Such DPFs are widely 260°C at least 25 percent of operating The EPA Tier engine requirements force
used in urban bus applications and are time in order for regeneration to occur. engine manufacturers to build engines
capable of passively regenerating DPFs We also understand that this device may that comply with more stringent
at the temperatures commonly seen in have the ability for active regeneration. emission standards for NOX, DPM, and
the exhausts of underground mining MSHA and NIOSH plan to work with CO over a time period. The Tier
equipment (above 250 °C for at least the coal mine operator to monitor the schedule normally requires the larger
40% of the operation time). device once it is installed. horsepower engines to meet more
The laboratory evaluation of the Since the system utilizes NOX stringent emission standards first, then
systems continues under NIOSH reduction, we are planning on testing the smaller horsepower engines. At this
contract by the Center for Diesel this device in our diesel laboratory to time, all new engines being sold in the
Research (CDR) at the University of determine the amount of NOX reduction United States in all horsepower ranges
Minnesota. The objective is to examine and to determine if there would be any are meeting a minimum of a Tier 2 EPA
performance and suitability of the adverse effects on engine emissions emission standard.
systems relative to heavy-duty diesel from this control scheme. NIOSH is also We agree that this trend which the
engines in underground mining planning on testing this device at a M/ mine operators are following to replace
applications, with specific focus on the NM mine, that is, if the work at the older engines has been a feasible
effectiveness of controlling NO2. If the underground coal mine proves approach to reduce DPM exposure to
results of laboratory evaluations show promising for application in the mining meet the interim limit. However, in
that the system is suitable for use in industry. order to meet the final limit, mine
underground applications, NIOSH e. Rypos. Rypos utilizes a sintered operators must continue to evaluate
would continue to study this DPM metal filter media for DPM filtration. their engine inventories to determine
control with a field evaluation in an The system uses electrical current for which engines need to be replaced as
underground mine. However, at this active regeneration. Initially, the system they become older, and new cleaner
time the laboratory data is still was used on stationary generator engines are available.
incomplete, and NIOSH continues to systems. Rypos has successfully tested a In addition, if mine operators are
work with the lab and Johnson Matthey prototype system on a surface grader. considering adding a DPF system to a
on this promising technology. Electrical power for filter regeneration machine that is equipped with a high
c. Diesel Particulate ReactorTM. We was obtained from a second alternator DPM emitting engine, they may first
have begun testing in our diesel on the grader that was dedicated need to repower the machine with an
laboratory a high performance DOC that exclusively to the DPF. At this time, engine having lower DPM emissions. In
contains a substrate which is a catalyst Rypos is discussing with us and NIOSH some cases, a Tier 1 engine may need
treated, woven stainless steel alloy development of a system for mobile to be replaced with a Tier 2 engine to
fabric cartridge. This Reactor is being mining equipment. We will update the allow for a successful application of the
tested as a stand alone unit, in mining community on our work with DPF. A lower DPM emitting engine
combination with a HTDPF, and with a this device. would enable the machine to operate for
synthetic fuel called Synpar 200. Our f. Huss. We are aware that a M/NM a longer period between regenerations,
preliminary laboratory data using the mine operator has purchased a Huss or before a disposable DPF would need
Reactor and the Synpar 200 synthetic system with a ceramic DPF using active to be replaced. Interruptions to mine
diesel fuel has shown an effective whole regeneration. However, we have not production activities to accommodate
DPM removal efficiency approaching 50 received any information on the regeneration or to replace a disposable
percent without any adverse changes in application of this DPF to the machine filter can be avoided when the engine
other engine emissions. We are aware at the mine or its performance. If and and DPF are properly matched to each
that several mines are planning on when we do, we will inform the mining other.
trying one or several of the community through the DPM Single To further emphasize this point, one
combinations listed. One underground Source Page. commenter discussed the application of
nonmetal mine has equipped about 80% g. Other DPF Systems. We continue to installing disposable DPF systems on
of its fleet of about 50 pieces of diesel work with DPF manufacturers that are Toyota pickup trucks. The mine
equipment with the Reactor, and reports listed on our Web site at: http:// operator stated that the cost of replacing
no operational or maintenance www.msha.gov/01-995/Coal/DPM- the disposable DPF is cost prohibitive.
problems. We will include on our DPM FilterEfflist.pdf. The DPF manufacturers However, we are aware that the engine
Single Source Page our efficiency that have submitted data to us and are model used in that Toyota truck is an
numbers for DPM removal when they listed on our Web site are: CleanAir old model that may be out of production
at this time. The truck engine described In each application the change to an water also reduces the engine’s
is a 128 hp engine. Based on alternative fuel had a positive impact on horsepower. While the per gallon price
information gathered by us, we believe reducing engine emissions and miners’ of the water emulsion fuel is the same
that this engine may have a DPM exposures to DPM. In some cases, as standard fuel, we are aware of
emissions output of between 0.8 and 0.9 reductions of 50 to 80+ percent were increases in engine consumption of
g/bhp-hr. This is considered a dirty measured. While we found notable these fuels by as much as 15 percent.
engine and is higher than a Tier 2 benefits, the use of alternative fuels can However, continued increased use in
engine standard. This would require also cause equipment operation issues mines is currently limited due to lack of
more frequent DPF replacements when for mine operators. These operational fuel availability in most mining regions.
using disposable filters, or more issues have included initial clogging of Manufacturers of this fuel must install
frequent active regenerations, or the use the fuel filters when biodiesel is used, centralized blender facilities in order to
of two DPFs as was discussed by the reduction of horsepower with the use of make the fuel more available and
commenter, thus increasing the cost. A water emulsion fuels, and management economically feasible for use by the
current Tier 2 engine in this horsepower of proper fueling of the correct fuel into metal and nonmetal mining industry.
range has a maximum DPM emission specific machines. While these We also stated that we had observed
rate of 0.22 g/bhp-hr. An engine operational issues could be overcome, some engines using water emulsion
replacement or vehicle replacement we believe that the mining industry fuels. One issue appears to be with the
could reduce the DPM output from each needs the additional time offered by this use of very efficient water separators
engine by up to 90 percent. final rule to work through used on engine fuel systems to remove
We believe that there are engines that implementation issues on a case-by-case water from the fuel lines. We advised
could be used to repower the truck. As basis. that a very efficient water separator will
further discussed later in this section on The most common problem with actually remove the water from the
Economic Feasibility, based on the cost alternative fuels is lack of geographic emulsion, thus affecting the engine’s
estimates that the commenter presented, proximity of most mines to a fuel performance. An engine manufacturer
the cost savings of switching engines or distributor. There are only three cities that has experienced this with its
even purchasing newer pickup trucks that are served by a water-emulsion fuel engines has recommended replacing the
with cleaner engines could pay for the blender/distributor: Cleveland, Ohio, more efficient water separator with a
engine or truck in a minimal time frame. Houston, Texas, and Los Angeles, less efficient one.
In addition, more stringent EPA on- California. Biodiesel fuel is more widely Another issue identified by some
highway emission standards come into available throughout the country than mine operators is that some small
effect with on-highway vehicle models water-emulsion fuel, but some mines, machines cannot run, or run poorly, on
starting in 2007. The more stringent particularly in the intermountain west this fuel. We are not aware of any
standards will require engine and the west coast, may be 200 miles or testing that has been done to prove or
manufacturers to install a DPF system more from the nearest biodiesel disprove this. This may or may not be
on all on-highway diesel powered producer or distributor. Thus, mine due to less complex fuel systems that
vehicles. The 2007 model pickups that operators in these isolated areas could cannot handle a change in fuel
will be sold in the United States will incur significantly increased fuel properties.
then have DPF systems installed at the transportation costs if they utilized Since water emulsion fuels have been
factory. biodiesel fuel at their mines. associated with horsepower loss, mines
As discussed previously in this Fuel manufacturers are building will have to determine through their
section, we are working with an engine distribution centers near mining areas to own in-mine testing if their machines
manufacturer and a pickup reduce the transportation costs, but can continue to operate efficiently even
manufacturer, NIOSH, and a coal mine these centers will take some additional with the power loss. Some situations
operator to evaluate the technology time to complete. Limited distribution is where the power loss could affect a
being incorporated. We plan on testing also a feasibility issue for metal and machine’s productivity occur at
the new engine/DPF system in our nonmetal mine operators who seek to multilevel underground mines at high
Diesel laboratory as soon as an engine/ obtain ultra low sulfur fuel. However, as elevations. Also, mines that require the
DPF system can be made available. The discussed elsewhere in this preamble, use of permissible engines with pre-
coal mine operator is concerned about the commercial availability of ultra low chamber combustion, such as the metal
the ability of the DPF system to sulfur fuel (less than 15 ppm sulfur and nonmetal gassy mines, may need to
regenerate. MSHA and NIOSH will be content) will increase during 2006 and determine any additional effects on
conducting in-mine studies to beyond when on-road vehicles, and these types of engines.
determine the feasibility of the shortly after that, nonroad diesel Several commenters noted that
regeneration process on the pickup engines in the United States will be PuriNox, a proprietary diesel fuel
trucks in both coal and M/NM mines. required by the EPA to use only this water emulsion product manufactured
The extended period of time allowed for type of diesel fuel. For these reasons, we by the Lubrizol Corporation, will no
in this final rule should provide the believe the additional time provided in longer be available in North America
additional time needed for this this final rule will allow mine operators after calendar 2006. We regret this
evaluation. the additional time they will need to decision by Lubrizol, as we have
i. Alternative Fuels and Ultra Low- comply is warranted. documented very significant DPM
Sulfur Fuels. In our 2005 NPRM, we j. Water Emulsion Fuels. In the 2005 reductions at mines that have
stated that during our compliance NPRM, we explained that water experimented with, or permanently
assistance efforts, we observed several emulsion fuels, such as PuriNox, are switched to PuriNox fuel. Since most
mines using alternative fuels, including blends of diesel fuels and water. The mines have been successful in attaining
water emulsion fuels and biodiesel water is held in suspension with a the interim limit using low DPM
fuels, both of which are EPA approved surfactant. The water in the fuel reduces emission engines, environmental cabs,
fuels. We subsequently tested these the engine combustion temperature and upgraded ventilation, very few
alternative fuels to determine if they resulting in reduced NO2 and reduced mines have switched to PuriNox fuel,
could decrease tailpipe DPM emissions. DPM emissions. However, the added thus limiting demand for this product.
It’s very limited geographic available in costs as an impediment to increased winter. Once the logistics for
the three cities identified above also usage of biodiesel. Technological transferring the biodiesel in winter are
limited demand. It is possible that more feasibility issues relating to biodiesel resolved, all mines can use the
mines might have switched to PuriNox fuel and economic feasibility issues are information. This may be as simple as
to attain the final DPM limit, if it were discussed in this section. locating one or more companies that can
still available when the final limit Examples of the specific concerns ship biodiesel using insulated rail cars
becomes effective. However, as noted expressed by commenters who doubt or tankers, or provide a service for
below, many of the DPM reduction the technological feasibility of biodiesel warming up the fuel prior to delivery at
benefits we have observed at mines fuel included a mining industry the mine. We can provide these vendors
using a water-emulsion fuel can also be organization that stated, ‘‘While the use on our Web site for the entire mining
achieved using high biodiesel content of biodiesel showed some promise in community for their use.
fuel blends. reducing EC at some mines, biodiesel We are aware of several mines that are
k. Biodiesel Fuels. As noted above, the caused reduced horsepower problems using very high biodiesel content
use of high biodiesel content fuel blends described by mine operators and is not blended fuels (near 100% biodiesel),
has resulted in significant DPM widely distributed nor accessible at a and they have reported no operational
reductions of up to 80% or more at reasonable cost to many mining or maintenance issues that were
mines that have experimented with or operations.’’ This commenter went on to unanticipated or presented any
switched entirely to such fuel blends. say, ‘‘* * * there is very little difficulty for the respective mine. B100
Even in blends as low as 20%, DPM availability of biodiesel in the Eastern or has approximately 5%–7% less energy
reductions of nearly 40% have been Western United States, where many of content than standard #2 petroleum
documented. Actual DPM reductions the mining operations are located that diesel, and this difference is reflected in
depend on engines, duty cycles, etc., but will be impacted by the proposed rule.’’ correspondingly lower horsepower
reductions of at least 60% would be A large Montana platinum mining output of an engine running on B100.
expected when fuel blends of B90 to company that consumes about 1,000,000 Mine operators that are using high
B100 are used. gallons of diesel fuel per year biodiesel fuel blends report that this
Biodiesel fuels are more readily commented that, ‘‘* * * cold weather horsepower loss is noticeable on some
available than water emulsion fuels. As concerns were evaluated to determine equipment, but manageable, and the
noted below, biodiesel is currently the necessary storage requirements to power difference has not impacted
available in every state except Alaska. reduce the potential for the fuel to gel.’’ production.
The costs and therefore the demand for This commenter continued by stating Biodiesel fuel acts as a solvent, and
biodiesel have been related primarily to that biodiesel cold flow properties in can loosen sediment in the fuel tanks
federal excise tax credits that have been 100% form is not good below 45 degrees and fueling systems of equipment that
available since 2004 to blenders of this and would require some type of heating has run previously on standard diesel.
fuel. The tax credits are passed along to make it flow. The regional supplier This sediment can clog fuel filters for a
from the fuel blender to the purchaser does not have the infrastructure to period of time until the fuel system is
in the form of reduced fuel costs. With support this product due to the current fully cleaned, which typically takes a
current tax credits, biodiesel can be an low demand and newness of the few weeks. During this period, fuel
attractive fuel alternative for the mining product. This mine operator also filters need to be changed more
industry. In the late summer and fall of evaluated the requirements for storing frequently than normal to avoid loss of
2005, and again in the spring of 2006, biodiesel on-site at the mine, and engine power or stalling. This solvent
due to market induced price swings for indicated that a 10,000 gallon tank effect has a long lasting benefit,
standard #2 diesel fuel, the price of would be needed for diesel, a 15,000 however, in that the fuel system and
biodiesel in many parts of the country, gallon tank would be needed for injectors run cleaner as long as biodiesel
with the tax credit applied, was lower biodiesel, and a 10,000 gallon tank fuel is used. One mine operator reported
than standard diesel. would be needed for the blended that their diesel engines have never run
Several commenters expressed product, at a combined cost of over as well as they are now that the mine
general agreement with our statements $250,000. switched to a high biodiesel content
in the 2005 NPRM regarding the use of Another commenter stated that, blended fuel. He attributed the better
biodiesel fuel as an effective means of ‘‘There may be adverse effects on engine performance to the higher lubricity of
reducing DPM emissions (70 FR 53287). performance and maintenance that need biodiesel and the cleaning effect on the
One commenter listed various other careful consideration before selecting fuel injectors.
advantages of biodiesel, including biodiesel as an alternative technology.’’ The solvent properties of high
reduced emissions of carbon monoxide, Another commenter stated that, biodiesel content fuel blends may
carbon dioxide, polycyclic aromatic ‘‘Cummins recommends a biodiesel fuel adversely affect certain elastomeric
hydrocarbon (PAH) compounds, oxides mix of no greater than 5%, but that components associated with an engine’s
of sulfur, and total hydrocarbons, as mixture does not result in a significant fueling system, such as hoses and
well as better lubricity, higher flash DPM reduction.’’ gaskets. Users need to contact the
point for increased fuel handling safety, We agree that these commenters have respective engine manufacturer to find
and higher cetane number for better concerns based on their current out which components, if any, need to
cold starts. However, some commenters assessments of the biodiesel fuel. The be replaced with their biodiesel-
asserted that biodiesel fuel is not a extension of time allowed for in this compatible counterparts. The extension
technologically feasible engineering final rule for meeting the final limit will of time allowed for under this final rule
control because it is not widely assist mine operators in working will provide the necessary time to make
available in the eastern and western through these operational issues if they these contacts.
states, it causes unacceptable power decide to use biodiesel. Many of the The solvent properties of the fuel may
loss, it is subject to gelling in cold biodiesel issues when resolved will also remove certain types of paint if the
weather, and it causes engine apply to the entire mining industry. One fuel remains in contact with a painted
maintenance problems. These example of this would be the logistics surface for a prolonged period. This
commenters also mentioned higher fuel for transferring biodiesel fuel during the property of biodiesel does not render
the fuel infeasible. It is simply an tank. For example, steam can be applied be more readily available in more areas
attribute of the fuel of which users need at the railhead to rail tank cars that are of the country by the effective date of
to be aware and take appropriate specially designed to facilitate this this final rule, even though its use may
precautions. Likewise, because of its process. Transportation vessels, either increase fuel transportation costs for
somewhat higher viscosity, a property rail or truck, can also be moved into a some mines. Biodiesel is available from
related to its better lubricity, high heated building for unloading. Fixed over 1,400 commercial petroleum
biodiesel fuel blends may tend to more storage tanks can be heated, placed distributors and over 750 retail stations
easily pass over the rings and dilute the inside a heated building, or in the case across the country. The only state
engine oil. For this reason, it may be of underground mines, storage tanks can without in-state access to biodiesel is
advisable when using high biodiesel be placed underground. To prevent fuel Alaska. The operator of a large
fuel blends to shorten engine oil change from gelling during equipment underground metal mine in Alaska,
intervals. operations, the equipment’s fuel tanks, however, reported that their fuel is
Biodiesel is subject to oxidation, fuel lines, and fuel filters can be heated, shipped from Seattle, and their supplier
microbial growth, and other conditions either using recycled engine heat, or has access to biodiesel.
during long term storage. Manufacturers using an external heating source, as Regarding the availability of biodiesel
typically recommend precautions be might be required if equipment is in the eastern and western states, we
taken such as fuel turnover, tank parked outside the mine overnight. acknowledge that most biodiesel
mixing, and anti-oxidant treatments if Such provisions are common in some production is concentrated in the
fuel is to be stored for longer than 6 parts of the world for all diesel Midwest, however as noted above, it is
months. Prior to use, biodiesel fuels equipment. available in the contiguous 48 states,
stored for longer than 6 months should Although the properties of biodiesel and Hawaii and biodiesel production
also be tested for acid number, may necessitate special transportation, and availability nationally is growing
sediment, and viscosity to insure it storage, and handling procedures by rapidly. Production of biodiesel in the
remains within specifications. In its mine operators, the precautions that U.S. grew from about 25 millions
publication, ‘‘Biodiesel Handling and would need to be taken to address these gallons in 2004 to about 75 million
Use Guidelines, DOE–GO–102006–2288. properties are straightforward and gallons in 2005, and significant further
Second Edition, March 2006,’’ the U.S. technologically unsophisticated, such as production growth is expected in the
Department of Energy indicates that, more frequent fuel filter changes during future, including plants in currently
‘‘the least stable B100 could be stored the initial change-over period, heating underserved areas like Wyoming,
for up to 8 months, while the most transportation and storage tanks, etc.
Montana, Washington, California,
stable could be stored for a year or The process of mixing standard diesel
Colorado, and Texas in the western part
more.’’ Nonetheless, the National and biodiesel to achieve a particular
of the U.S., and Tennessee, Kentucky,
Biodiesel Board recommends biodiesel biodiesel blend, such as B20, B35, or
Pennsylvania, Virginia, North Carolina,
fuels be used within 6 months of B50 (20%, 35%, and 50% biodiesel with
and New York in the east. This expected
purchase. Instituting these precautions the remainder standard diesel,
increased availability of biodiesel fuel
in using biodiesel may take mine respectively), though not
by 2008 in currently underserved areas
operators some additional time to technologically challenging, would
of the country supports our decision to
implement thus justifying the delay normally be done by the fuel distributor.
It is also significant that biodiesel is phase-in the final DPM limits in three
allowed for in this final rule. For mining
operations that consume large amounts a ‘‘drop in’’ replacement for standard steps from 308EC µg/m3 in May 2006 to
of diesel fuel and receive fresh fuel diesel in any diesel engine. The only 350TC µg/m3 in January 2007 to 160TC
shipments from reputable suppliers on engine modification that may be µg/m3 in May 2008. Biodiesel plants
a frequent basis, long term storage issues necessary in some engines is to insure currently under construction are rated at
are not a major concern. that all elastomeric fuel system 329 million gallons of annual
We agree with the comments components (hoses, gaskets) are production capacity, and plants in the
regarding the cold flow properties of biodiesel compatible, however, any pre-construction phase will add an
biodiesel presenting storage and components that are not compatible can additional 518 million gallons of annual
handling challenges. Neat soy-diesel (a be easily replaced. For these reasons, of production capacity.
100% biodiesel fuel made from soybean the many DPM controls that are The Montana platinum mining
feedstock) has a cloud point of 32 available to underground M/NM mine company referenced above stated that,
degrees Fahrenheit, and a pour point of operators, switching to biodiesel fuel ‘‘No manufacturers of biodiesel have
28 degrees Fahrenheit. The cloud point may involve the fewest difficult been located in the proximity of the
is the temperature at which crystals implementation issues. The mine, making availability and delivery a
begin to form in the fuel, causing the consequences of failing to implement significant concern.’’ While there may
potential for clogged fuel filters. The the precautions listed above could be be no biodiesel manufacturers in
pour point is the temperature at which quite significant. But information proximity to the mine at the present
the fuel begins to gel and becomes regarding these implementation issues time, a 15,000,000 gallon annual
difficult to pump. At temperatures is well defined and widely distributed capacity biodiesel plant is scheduled to
approaching the cloud point, neat soy- (MSHA will include this important go online in Culbertson, MT in March
diesel needs to be heated to prevent information on its DPM Single Source 2007, and there is currently a
handling difficulties. Page), and fully addressing them would commercial biodiesel distributor about
Many industrial chemicals have be technologically and economically 140 miles from the mine site in
similar cold weather handling feasible for most, if not all mine Bozeman, MT. This distributor, which
properties, and practical means have operators. receives its supply of biodiesel via rail
been developed to enable routine We agree with comments that the cars, has the capability to supply the
storage and transfer of these chemicals availability of biodiesel fuel is more mine’s required 1,000,000 gallons per
at any temperature. The most common limited than standard diesel, especially year, and it is equipped to use steam to
method for off-loading such materials in the eastern and western states. heat the cars for off-loading during the
from transportation vessels is to heat the However, we believe that biodiesel will winter months.
Another commenter that expressed represent what is currently known in the producing lower DPM levels. The DPM
concern about the lack of biodiesel industry. reductions of 60% to 80% that we have
availability was a gold mine operator in This on-line fact sheet goes on to documented were achieved with fuel
the Elko, Nevada area. This operator identify specific areas of concern, blends of 98% to 99% biodiesel. Thus,
said, ‘‘B20 is available in Salt Lake City, including possible adverse effects on we continue to believe that biodiesel is
approximately 300 miles away.’’ While engine performance and fuel system a feasible DPM control that is capable of
this is undoubtedly true, there is also a integrity/durability, low temperature achieving significant reductions (as
commercial biodiesel distributor at operability, heat content, oil change defined in the 2005 rule (70 FR 32868,
Battle Mountain, Nevada, about 120 intervals, effects on elastomeric fuel 32916)) in DPM exposure when this fuel
miles from the mine that can supply any system components, and a variety of is used in neat form (100% biodiesel) or
grade of biodiesel from B2 to B100. This issues related to long term storage, such in sufficiently high blends with
distributor also receives its biodiesel via as fuel stability, oxidation, corrosion, standard petroleum diesel fuel.
rail cars. It does not currently have the microbial growth, and fuel acid content. Several commenters also mentioned
capability to apply steam to cars in the These issues are potentially significant, that they were considering, or had
winter months to facilitate cold weather and if not appropriately addressed, switched to ultra low sulfur (15 ppm)
off-loading. However, a representative could result in serious operational diesel fuel. As expected, these
for the distributor indicated that such a problems and engine damage. However, commenters did not report significant
capability would be provided if a as noted above, we believe that DPM reductions after the switch to this
customer entered into a supply contract solutions to these issues could be fuel. The primary benefit of ultralow
providing for sufficient fuel volumes; a implemented by the extension of time sulfur diesel is to enable advanced
requirement that this mine should be offered by this final rule, so mine emission reduction technologies that
able to satisfy within the time operators should not be impeded from utilize catalysts that would be poisoned
prescribed for the effective date of the utilizing high biodiesel content fuel by higher sulfur content fuel.
final limit. l. Installation of Environmental Cabs.
blends.
Regarding engine warranties, the Environmental cabs are a proven means
A trona mine operator also expressed to reduce worker exposure to DPM.
concern over the availability of Cummins on-line fact sheet states that,
While much of the construction-type
biodiesel fuel near the mine in Cummins neither approves or disapproves equipment used in underground stone
southwestern Wyoming. However, there of the use of biodiesel fuel. Cummins is not mines comes equipped with
is a commercial distributor of all grades in a position to evaluate the many variations
of biodiesel fuels or other additives, and their
environmental cabs, the cabs on
of biodiesel fuel in Jackson, WY specialty mining equipment used in
approximately 185 miles from the mine, long-term effects on performance, durability
or emissions compliance of Cummins underground hard rock mining are less
and another commercial distributor in common, particularly in mines with
products. The use of biodiesel fuel does not
Richmond, UT approximately 180 miles affect Cummins Material and Workmanship narrow drifts or low seam heights. As
from the mine. These fuel distributors warranty. Failures caused by the use of mine operators realize the benefits of
are likely farther from the mine than the biodiesel fuels or other fuel additives are cabs, more and more pieces of
mine’s current distributor, and NOT defects of workmanship and/or equipment are being purchased or
shipments of fuel from these materials as supplied by Cummins Inc. and retrofitted with environmental cabs.
distributors would be subject to higher CANNOT be compensated under the
Cummins’ warranty.
These cabs provide protection for
transportation costs. Although the mine workers not only from diesel particulate
operator would have to determine the With respect to engine warranties, but also from noise and dust.
feasibility of receiving biodiesel from Cummins treats biodiesel no differently Only a few comments were received
such distance, we believe that the than it treats standard petroleum-based on the subject of environmental cabs.
biodiesel industry will resolve these diesel. Most of the engine manufacturers These comments typically agree that
logistic problems in time for the have similar warranty positions. environmental cabs can be effective in
effectiveness of the final limit in May A trona mine operator reported that reducing the occupant’s DPM
2008. The Biodiesel Board included they had obtained DPM sample results exposures, but applications may be
comments to the 2005 NPRM stating for their mine that exceeded the 160TC limited by three factors: retrofitting cabs
how distribution of biodiesel fuel is µg/m3 final DPM limit despite using a is not always possible, especially on
expanding throughout the United States, B20 biodiesel fuel blend (20% biodiesel some older machines, there may not be
which helps to make the final limit mixed with 80% standard petroleum adequate clearance for cabs in certain
feasible as prescribed in the final rule. diesel fuel). A stone mine operator confined areas of some mines, and cabs
In response to a commenter’s reported similar results with B20 fuel. offer no protection for miners who must
concerns about engine warranties, the These commenters question whether work outside a cab. A comment received
engine manufacturers do not warrant biodiesel is a feasible control, since they from a mining industry organization
their engines against fuel related were not able to attain compliance with was typical:
problems, either biodiesel or standard the 160TC µg/m3 final DPM limit using
Environmental cabs are effective. However,
petroleum diesel. Regarding the this fuel. they can not be retrofitted to all mining
commenter’s concern relating to their Based on extensive in-mine testing equipment. Further, there are some jobs in
Cummins engines, the Cummins on-line and both personal and area sampling at underground mines where miners work
customer assistance fact sheet on mines that have either experimented outside of equipment and cabs would
biodiesel states that, with, or switched permanently to provide them no protection.
biodiesel fuel blends, we believe Another industry organization stated,
Given the current understanding of bio
significant DPM reductions would not

fuels and blending with quality diesel fuel, Simply put, fully enclosed environmental
it would be expected that blending up to a
have been expected with biodiesel
cabs provide superb protection to equipment
5% volume concentration should not cause blends as low as B20. In our operators from exposure to DPM. However,
serious problems. For customer’s intent on evaluations, we only began to see they provide no protection to miners working
blending bio fuels above 5% volume significant DPM reductions at B35 or alongside such equipment. Furthermore,
concentration, the following concerns higher, with higher biodiesel content installation of fully enclosed environmental
cabs can only be accomplished where the costly, and sophisticated ventilation exist at many mines, even if the main
resulting larger profile of the equipment fits systems, often designed by a ventilation system is well designed and
properly within the heading size in the mine professional mine ventilation engineer, efficiently operated.
where such equipment is operated. Without extensive on-site study, we
and usually operated and managed by
We agree in general with these engineers with specific mine ventilation are unable to assess the validity of the
comments and we believe that a cab’s training and experience. These systems commenter’s assertion that the mine’s
feasibility needs to be evaluated on a normally consist of a network of main, ventilation is near its capacity, but such
case-by-case basis as to exactly which booster and auxiliary fans, and a a condition would not be unusual, at
equipment is suitable for retrofit of a complex array of interconnected shafts, least with respect to major ventilation
cab, or whether space limitations in raises, and ventilation control system elements like shafts and main
certain areas at a particular mine would structures. In contrast, room and pillar fans. Short of a major ventilation system
prevent utilization of equipment with stone mines typically have very simple upgrade such as a new shaft sinking or
cabs. In these respects, questions ventilation systems which may not have main fan installation or repowering, it
regarding the feasibility of using cabs as been designed at all. Such systems may would be more likely that auxiliary
an engineering control to prevent DPM rely entirely on natural ventilation ventilation system performance could
exposure are no different than questions alone, and those that do incorporate be improved.
regarding the feasibility of using cabs for forced ventilation are often simple Regarding the issue of fugitive dust,
control of dust or noise exposures. blowing or exhausting systems, or may which is mineral dust that is entrained
m. Ventilation. All underground consist of nothing more than one or a in and carried by the ventilation air
M/NM mines rely on ventilation to few free standing booster fans stream, if ventilation increases are
dilute and carry away diesel particulate underground. They are normally required to reduce DPM levels, but such
matter and toxic gases as well as to operated or managed by the mine increased ventilation would be so great
provide fresh air to the miners. Based on foreman or manager, and it is rare for as to pick up dust from the mine floor
the comments received from mine such individuals to have had any or muck piles, it may be necessary for
operators and from our own professional training in mine ventilation the mine operator to apply water more
observations during mine inspections engineering. frequently to haul roads and working
and compliance assistance mine visits, At most multilevel metal mines, high places, or use dust control chemicals to
it is clear that ventilation is a key ventilation system costs provide a major manage corresponding fugitive dust
component of nearly every mine’s DPM economic incentive to operators to levels. Mine operators frequently face
control strategy. optimize system design and trade-offs like this, and we are confident
However, the extent to which it is performance, and therefore, there are this problem can be successfully
feasible for ventilation system typically few if any feasible upgrades to handled within the prescribed time
performance to be improved or main ventilation system elements that frames of this final rule. For example,
upgraded, either to obtain compliance these mines haven’t already mines that currently water their haul
with the final DPM limit or to obtain implemented, or would have roads once a shift, may need to water
compliance in combination with other implemented anyway, whether or not their haul roads twice a shift.
controls, is disputed by some the DPM rule existed. Accordingly, and Regarding the comment relating to the
commenters. One commenter from a though it remains an option that might difficulty of increasing ventilation in
gold mine in Nevada stated that, be attractive in new development, we small and widely distributed working
‘‘Ventilation is near its capacity. Further expect very few mines of this type to places, we conducted an extensive
increases are likely to create fugitive implement major ventilation system study of the auxiliary ventilation
dust problems from haulage vehicles.’’ upgrades to achieve compliance with systems at this mine. The company
Another commenter addressing this rule. ventilation engineer stated that the
conditions at a different multilevel Despite the built-in incentives to stope ventilation systems were designed
metal mine indicated that increasing design and operate efficient ventilation to deliver a minimum of 12,000 cfm to
airflows in that mine’s small and widely systems, however, we have observed the faces. The 12,000 cfm airflow would
distributed working places would be aspects of ventilation system operation dilute emissions for a 100 hp loader
difficult. This commenter also disputed at such mines that can be improved, (PI¥5000 cfm) to 321EC µg/m3. This
our observation in the preamble to the usually relating to auxiliary ventilation value would increase by the level of
2005 final rule that a major multi- in stopes. Auxiliary fans are sometimes DPM in the stope intake. During this
million dollar ventilation upgrade at sized inappropriately for a given survey, several of the stope ventilation
that mine was not a DPM compliance application, being either too small (not systems failed to provide that level of
related expense (70 FR 32934–32936). enough air flow) or too large (causing airflow to the faces, and in fact, some
Another commenter from a mining recirculation). Auxiliary fans are systems lost over 90% of their air
industry organization stated that a sometimes poorly positioned, so that volume before reaching the end of the
notable characteristic of underground they draw a mixture of fresh and vent duct. This was primarily due to
stone mines is their large open spaces recirculated air into a stope. Auxiliary long ventilation tubing lines and poor
(room and pillar mining) that are fans are sometimes connected to maintenance of the ventilation tubing.
ventilated naturally. To introduce multiple branching ventilation ducts, so Also, it was noted during the survey
forced ventilation in mines presently that the air volume reaching a particular that improper fan placement at the
ventilated naturally would entail stope face may be considerably less than mouth of the stopes allowed exhaust air
enormous costs in mine structures that the fan is capable of delivering. Perhaps to be recirculated back to the face before
would be needed to direct the most often, the ventilation duct is in being diluted by the footwall lateral
ventilation inside the mine. poor repair, was installed improperly, or airflow.
These comments represent the has been damaged by blasting or passing This commenter also responded to
extremes in ventilation practice in the equipment to the extent that the volume our analysis of a major ventilation
underground M/NM mining industry. of air reaching the face is only a tiny upgrade at this mine, characterizing it as
Deep multilevel mines, due to a variety fraction of that supplied by the fan. We ‘‘suspect,’’ but offering no specific
of factors, typically have complex, believe that these and similar problems comments or corrections. The mine in
question had instituted a major upgrade provide mine operators more time to The all too frequent result of these
of the ventilation system including new explore these options. deficiencies is a ventilation system that
aircourses, new vent raises, and new Indeed, during our DPM compliance is plagued by insufficient dilution of
and redeployed main and booster assistance visits, we have observed that airborne contaminants, short circuiting,
ventilation fans. The $9,000,000 ventilation upgrades have been recirculation, and airflow direction and
upgrade increased total mine airflow by implemented at many mines in the volume that are not controllable by the
34% to 840,000 cfm while reducing stone sector for DPM control. Nearly mine operator. Mines experiencing
total fan power requirements by 1,000 every stone mine visited by us had these problems could benefit greatly
hp through more efficient deployment completed, had begun, or was planning from upgrading main, booster, and/or
of booster fans. to implement ventilation system auxiliary fans, along with the
As a result of further discussions with upgrades. construction and maintenance of
personnel at the mine, we had At many high-back room-and-pillar effective ventilation control structures.
determined that the upgrade had several stone mines, we observed ventilation Consequently, we have urged the
objectives in addition to DPM control, systems that were characterized by (1) mining industry to utilize mechanical
including greater system efficiency such inadequate main fan capacity (or no ventilation to improve overall air flows
as eliminating an excessive number of main fan at all), (2) ventilation control and to enable better control of
booster fans (some competing with each structures (air walls, stoppings, curtains, ventilating air.
other for air), the need to accommodate regulators, air doors, brattices, etc.) that Ventilation fan upgrades for the stone
increased production, the need to are poorly positioned, in poor mining sector are usually relatively
ventilate a ramp used by trucks to haul condition, or altogether absent, (3) free inexpensive due to the low mine
ore upgrade from the levels below the standing booster fans that are too few in resistance associated with large
bottom of the shaft, and the desire to number, too small in capacity, and openings. In many of these mines, a
increase the number of ventilation located inappropriately, and (4) no 250,000 cfm air flow can be obtained at
intakes into the mine, thereby providing auxiliary ventilation for development less than 1 inch of water gage pressure.
more fresh air emergency escape routes ends (working faces). At some mines, This air flow can be provided by a 50
and reducing intake aircourse air the ‘‘piston effect’’ of trucks traveling horsepower motor.
velocities (for reduced dust entrainment along haul roads underground, along We agree with the commenter that the
and enhanced miner comfort). We were with natural ventilation pressure, major cost in these applications is
told that the mine had ‘‘overreached’’ provide the primary or only driving usually distribution of the air flow
the existing ventilation system, and that forces to move air. underground to insure that adequate air
the upgrade was overdue, even without In naturally ventilated mines, quantities reach the working faces rather
consideration for DPM levels in the temperature-induced differences in air than short-circuiting to a return or
mine. Based on this information, and in density between the surface and recirculating around free-standing
response to comments from this mine underground result in natural air flows booster fans. Good air flow distribution
operator addressing the August 14, 2003 through mine openings at different requires such practices as installing or
proposed rule on the interim DPM limit, elevations. Warmer and lighter mine air repairing ventilation control structures
we had suggested that the total cost of rises up out of a mine during the colder (brattice line, air curtains, etc.) or
the ventilation upgrade should be only winter months, which draws in cooler changes in mine design to incorporate
partially DPM-related. We also pointed and heavier air at lower elevation mine unmined pillars as air walls. Such
out that the cost of the upgrade needed openings. In the summer, cooler and ventilation control structures are not
to be annualized because the asset had denser mine air flows out of lower complex to install, and since they
an expected useful life of many years, elevation openings, which draws usually have a very long useful life,
resulting in a yearly cost that was a warmer less dense air into higher when the cost of such controls is
small fraction of the $9,000,000 elevation openings. Under the right annualized, the yearly cost is only a
expense. We disagree with the conditions, such air flows can be fraction of the initial acquisition and
characterization of our analysis as significant, but they are usually installation costs.
‘‘suspect,’’ because we believe it is fully inadequate by themselves to dilute and Despite the commenter’s suggestion to
supported by the facts, and because the carry away DPM sufficiently to reduce the contrary, a great many underground
commenter provided no explanations or miners’ exposures to the interim limit. stone mines are currently ventilated
corrections regarding our data or The other principal shortcoming of with main and booster fan systems. The
methods. natural ventilation is the inherent lack necessary ventilation control structures
Room and pillar stone mine of a method of controlling air flow have also been installed in a great many
ventilation is entirely different than quantity and direction. Ventilation air such mines to facilitate the efficient and
multilevel metal mine ventilation. flows can slow or stop when effective distribution of ventilation air
Ventilation at stone mines was temperature differences between the underground. One commenter, a stone
addressed extensively in the preamble surface and underground are small producer with seven underground
to the 2005 final rule (70 FR 32931– (common in the spring and fall), and the mines, reported that, ‘‘All of [their]
32932). We agree that ventilation system flow direction reverses between summer mines have performed major ventilation
upgrades may not be the most cost and winter, and sometimes even upgrades,’’ including ventilation
effective DPM control for many mines, between morning and afternoon. surveys by an outside contractor,
and for others, ventilation upgrades may Mine operators normally supplement installation of larger main fans,
be entirely impractical. However, at natural ventilation with booster fans installation of new and larger portable
many other mines, perhaps the majority underground. However, if overall air fans that are used at active headings, use
of mines affected by this rule, flow is inadequate, as is usually the case of larger booster fans, and the
ventilation improvements would be an with naturally ventilated mines, and installation of ‘‘new ventilation
attractive DPM control option, either when mine elevation differences or stoppings and curtains at various
implemented by itself or in combination surface and underground temperature locations throughout the mine at all
with other controls. The additional time differences are small, booster fans are mines.’’ Clearly, based on this
provided under this final rule will largely ineffective. company’s experiences and our
observations at many other mines, the analyzed using the NIOSH 5040 method Method fails to account for these
technological feasibility of this type of and calculated using the MSHA industrial hygiene (IH) factors.
DPM engineering control is well Sampling Method to determine Our DPM sampling procedures are
established for the stone sector of the exposure, which does not take into posted on the M/NM DPM Single
underground M/NM mining industry, account significant IH factors such as
Source Page, which is linked to our
although it may take some time for shift length over 480 minutes, average
internet home page. Exposures are
mines to make the necessary changes. pump flow rates using pre-sample
n. DPM Sampling Issues. A trona calibration and post-sample calibration determined from the sampling data in
mine operator, in reporting their DPM figures, and other environmental factors accordance with the formula on page T–
sampling results in their comments, such as temperature and pressure. We 7 of the sampling procedures, as shown
indicated that these samples were disagree that the MSHA Sampling below:
C (µg /cm 2 ) ∗ A (cm 2 ) ∗ 1, 000 L/m3

Carbon Concentration (µg/m3 ) =
1.7 Lpm ∗ 480 min
Where: Regarding the other industrial hygiene The most useful general judicial criteria for
C is the mass of carbon, expressed in factors which the commenter claims are economic feasibility comes from Judge
not addressed, our sampling procedures McGowan’s opinion in Industrial Union
micrograms, deposited on the filter Dep’t, AFL–CIO v. Hodgson, supra. A
per square centimeter of filter on p. T–3 requires pre-sample
standard is not infeasible simply because it
surface calibration of the sampling pump, and is financially burdensome, 499 F.2d at 478,
A is the area of the filter onto which on p. T–6, requires post-sample or even because it threatens the survival of
DPM is deposited, expressed in calibration of the sampling pump. The some companies within an industry:
square centimeters pre-sample and post-sample calibrations Nor does the concept of economic
1,000 L/m3 is a unit conversion factor to are required to be performed in feasibility necessarily guarantee the
convert liters to cubic meters (the accordance with the procedures continued existence of individual employers.
pump flow rate is expressed in outlined in Chapter C of the M/NM It would appear to be consistent with the
Health Inspection Procedures purposes of the Act to envisage the economic
liters per minute, whereas the DPM
Handbook. Since our pump calibration demise of an employer who has lagged
concentration is expressed in behind the rest of the industry in protecting
micrograms per cubic meter) devices measure true volumetric flow,
the health and safety of employees and is
1.7 Lpm is the pump flow rate, day to day variations in atmospheric consequently financially unable to comply
expressed in liters per minute pressure due to weather changes are with new standards as quickly as other
480 min is the number of minutes in an irrelevant. However, pressure effects employers. * * *
8-hour work shift from calibrating a pump at one elevation Id. (footnote omitted). A standard is feasible
We account for work shifts longer or and sampling at a significantly different if it does not threaten ‘‘massive dislocation’’
shorter than 8 hours (480 minutes) by elevation can be important. to, AFL–CIO v. Brennan, supra, 530 F.2d at
shift-weighting all sample results. The Accordingly, among the many 123, or imperil the existence of, American
shift-weighting process is explained in requirements relating to the use of Iron & Steel Institute v. OSHA, supra, 577
sample pumps contained in the M/NM F.2d at 836, the industry. No matter how
the DPM Compliance Guide, which is initially frightening the projected total or
also posted on the M/NM DPM Single Health Inspection Procedures Handbook
is one specifying that pump calibrations annual costs of compliance appear, a court
Source Page and is summarized below: must examine those costs in relation to the
must be performed within 1,000 feet of
‘‘Average full shift airborne concentration’’ financial health and profitability of the
the elevation where sampling will be industry and the likely effect of such costs on
means that a miner’s exposure is determined conducted, or if not, that the specified
by measuring the average concentration of unit consumer prices. Id. More specifically,
airborne DPM to which the miner is exposed
procedures for adjusting pump flow rate Industrial Union Dep’t, AFL–CIO v. Hodgson,
over a full work shift, regardless of shift for elevation must be followed. Our supra, teaches us that the practical question
length. Temporary excursions above a limit inspectors are also required to measure is whether the standard threatens the
are permitted from time to time during the and record the temperature where competitive stability of an industry, 499 F.2d
shift, as long as the average over the entire sampling occurs. Our DPM sampling at 478, or whether any intra-industry or inter-
shift is within the limit. The term, ‘‘average field notes form has a space for industry discrimination in the standard
eight hour equivalent full shift airborne temperature that must be filled in for might wreck such stability or lead to undue
concentration,’’ refers to our longstanding concentration. Id. at 478, 481. Granting
every sample taken. companies reasonable time to comply with
practice of ‘‘shift-weighting’’ when applying
compliance limits for airborne contaminants B. Economic Feasibility new PEL’s might not only enhance economic
to exposures that occur over a time period feasibility generally, but, where the agency
We have determined that phasing in makes compliance deadlines uniform for
that is different from a standard 8-hour shift.
Our compliance limits are normally based on
the final DPM limit of 160TC µg/m3 as competing segments of industry, can also
8 hours of workplace exposure to a prescribed in the final rule is prevent such injury to competition. Id. at
contaminant and 16 hours of recovery time economically feasible for the M/NM 479–481. United Steelworkers of America,
in the absence of the contaminant. The mining industry. Economic feasibility AFL–CIO–CLC v. Marshall, (OSHA Lead) 647
workplace 8-hour shift weighted average does not guarantee the continued F.2d 1189, 1265 (D.C. Cir. 1980). To prove
(SWA) exposure is computed as the mass of viability of individual employers, but economic feasibility, ‘‘OSHA must construct
a reasonable estimate of compliance costs
DPM on the filter divided by the 8-hour instead, considers the industry in its
sample volume, which is 0.816 cubic meter and demonstrate a reasonable likelihood that
entirety. In United Steelworkers of these costs will not threaten the existence or
for a sample flow rate of 1.7 liters per minute. America v. Marshall, 647 F.2d 1189, competitive structure of an industry, even if
Thus, our DPM sampling and 1265 (1980) regarding OSHA’s statutory it does portend disaster for some marginal
analytical procedures do account for criteria for establishing economic firms.’’ Steelworkers, 647 F.2d at 1272. As
ER18MY06.009</MATH>
work shifts that are longer than 8 hours. feasibility, the Court recognized that: with technological feasibility, OSHA is not
required to prove economic feasibility with or a combination of controls to reduce use under this final rule and using the
certainty, but is *981 **153 required to use a miner’s exposure to DPM. When 2001 REA as a basis, we compared the
the best available evidence and to support its engineering and administrative controls cost of controls that are used to comply
conclusions with substantial evidence. See
id. at 1267. do not reduce a miner’s exposure to the with the existing DPM limit of 308EC µg/
DPM limit, the controls are infeasible, or m3 to that of the newly promulgated
In a separate case involving review of controls do not produce significant final limits. These controls include
an OSHA standard, the D.C. Circuit reductions (as defined in the 2005 rule diesel particulate filters (DPFs),
Court stated that: (70 FR 32868, 32916)) in DPM ventilation upgrades, oxidation catalytic
‘‘Congress does not appear to have exposures, operators must continue to converters, alternative fuels, fuel
intended to protect employees by putting use all feasible engineering and additives, enclosures such as cabs and
their employers out of business—either by administrative controls and supplement booths, improved maintenance
requiring protective devices unavailable procedures, newer engines, various
under existing technology or by making
them with respiratory protection.
financial viability generally impossible.’’ See Though mine operators may choose to work practices and administrative
Industrial Union Dep’t., 499 F.2d at 467 (D.C. use an engineering control or an controls. Our comparison included costs
Circuit 1974). administrative control to reduce a of retrofitting existing diesel-powered
miner’s exposure, or a combination equipment and regeneration of DPFs.
A standard would not be considered
economically feasible if an entire thereof, existing § 57.5060(d) prohibits a On the basis of information in the
industry’s competitive structure were mine operator from using respiratory rulemaking record, including our
threatened. Id. at 478; See also, AISI–II, protection in lieu of feasible controls. current enforcement experience, we
939 F.2d 975, 980 (DC Cir. 1991); United Mine operators must establish a have determined that the final rule is
Steelworkers, 647 F.2d at 1264–65; respiratory protection program when economically feasible for the
AISI–I, 577 F.2d 825, 835–36 (1978). controls are infeasible. Section underground M/NM mining industry as
This would be of particular concern in 57.5060(d), as promulgated under the a whole, as was the 2005 final rule. In
the case of foreign competition, if 2005 rule, incorporates by reference the 2005 final rule, we determined that
American companies were unable to MSHA’s current respiratory protection the 308EC µg/m3 interim limit is
compete with imports or substitute program requirements for metal and economically feasible. To determine
products. The cost to government and nonmetal mines at §§ 56.5005(a) and (b) whether this final rule is economically
the public, adequacy of supply, and 57.5005(a) and (b). These provisions feasible, we analyze economic
questions of employment, and include requirements for selection, fit- feasibility from two different
utilization of energy may all be testing, and maintenance of respirators. perspectives. First, we analyze whether
considered when analyzing feasibility. In addition, mine operators must follow the new requirements of the final rule
In determining whether these factors the requirements under paragraphs (medical evaluation and transfer) are
might reasonably be significant in (d)(1) and (d)(2) of the 2005 rule for economically feasible. Second, we
analyzing the economic feasibility of a appropriate filters for respirators. If we analyze whether the additional cost of
rule, MSHA has relied on a 1% ‘‘screen’’ confirm that mine operators have met moving from the interim limit of 308EC
of the yearly costs industry is estimated all of the abovementioned requirements µg/m3 to the final limit of 160TC µg/m3
to incur to comply with a rule relative for addressing a miner’s overexposure, is economically feasible.
to annual industry revenues. When and the miner’s exposure continues to Analyzed from the first perspective,
yearly costs are less than 1% of annual exceed the final limit (not counting the additional yearly costs of the final
revenues, MSHA views that the costs of respirators), we will not issue a citation rule are $69,170. The derivation of the
the rule are below the threshold for an overexposure. Instead, we will costs of medical evaluation and transfer
necessary to conclude that such an continue to monitor the circumstances provisions of the final rule are
extensive analysis is necessary to leading to the miner’s overexposure, explained in Section IX.A of this
establish the economic feasibility of the and as controls become feasible, we will preamble. The total yearly compliance
rule. In that case, MSHA presumptively require the mine operator to install and cost of these new provisions for the
concludes that the rule is economically maintain them to reduce the miner’s underground M/NM mines that use
feasible. exposure to the final limit. We believe diesel equipment is only 0.001% of the
This final rule will continue to that existing controls used to reduce annual revenues for these mines, well
require mine operators to establish, use miners’ exposures to the current interim below the 1% ‘‘screen’’ that we use as
and maintain all feasible engineering limit can be used in helping mine a presumptive benchmark of economic
and administrative control methods to operators achieve compliance with the feasibility. Hence, we conclude that this
reduce a miner’s exposure to the final limits. Therefore, in determining final rule is economically feasible for
applicable final limit. It affords mine the economic feasibility of engineering underground M/NM mines that use
operators the flexibility to choose and administrative controls that the M/ diesel equipment. Table V–1 shows
engineering and administrative controls, NM underground industry will have to these calculations.
Analyzed from the second the 308EC µg/m3 interim limit is in below the 1% ‘‘screen’’ that we use as
perspective, the additional yearly costs effect, are provided in Section IX.B of a presumptive benchmark of economic
for underground M/NM mines to move this preamble. The total yearly cost of feasibility. Hence, we conclude that the
from the interim limit to the final limit meeting the final limit for the final limit is economically feasible for
of 160TC µg/m3 are $8,454,853. The underground M/NM mines that use underground M/NM mines that use
derivation of these costs of achieving diesel equipment is only 0.175% of the diesel equipment. Table V–2 shows
the 160TC µg/m3 final limit, given that annual revenues for these mines, well these calculations.
ER18MY06.000</GPH>
In circumstances where the use of benefits,’’ and whether the costs are so mines. As a result, we will consider the
further controls may not be great that it is irrational to require total cost of the control or combination
economically viable, the standard implementation of the control to of controls relative to the expected
provides for a hierarchy of control achieve those results. The Commission benefits from implementation of the
strategy that allows specifically for the has expressly stated that cost-benefit control or combination of controls when
cost impact to be considered on a case- analysis is unnecessary to determine determining whether the costs are
by-case basis. Our DPM enforcement whether a control is feasible. wholly out of proportion to results. If
policy, therefore, takes into account the Consistent with Commission case law, controls are capable of achieving a 25%
financial hardship on a mine-by-mine we consider three factors in determining reduction criterion, we will evaluate the
basis, which we believe effectively whether engineering controls are cost of controls and determine whether
accommodates mine operators’ feasible at a particular mine: (1) The their costs would be a rational
economic concerns, particularly those of nature and extent of the overexposure; expenditure to achieve the expected
small mine operators. (2) the demonstrated effectiveness of results.
Whether controls are feasible for available technology; and (3) whether We continue to emphasize that the
individual mine operators is based in the committed resources are wholly out concept of ‘‘a combination of controls’’
part upon legal guidance from decisions of proportion to the expected results. A is not new to the mining industry. It is
of the independent Federal Mine Safety violation under the final standard will our consistent practice not to cost
and Health Review Commission entail an agency determination that a controls individually, but rather to
(Commission) involving enforcement of miner was overexposed, that controls combine their expected results to
MSHA’s noise standards for M/NM are feasible, and that the mine operator determine if the 25% significant
mines, 30 CFR 56.5–50 (revised and failed to install or maintain such reduction criterion, as discussed earlier
recodified at 30 CFR 62.130). According controls. According to the Commission, in this section, can be satisfied. We
to the Commission, a control is feasible an engineering control may be feasible heavily weigh the potential benefits to
when it: (1) Reduces exposure; (2) is even though it fails to reduce exposure miners’ health when considering
economically achievable; and (3) is to permissible levels contained in the economic feasibility and do not
technologically achievable. See standard, as long as there is a significant conclude economic infeasibility merely
Secretary of Labor v. A.H. Smith, 6 reduction in a miner’s exposure. Todilto because controls are expensive. Mine
FMSHRC 199, 201–02 (1984); Secretary Exploration and Development operators have the responsibility for
of Labor v. Callanan Industries, Inc., 5 Corporation v. Secretary of Labor, 5 demonstrating to us that the costs of
FMSHRC 1900, 1907–09 (1983). FMSHRC 1894, 1897 (1983). technologically feasible controls are
In determining the economic We will consistently utilize our wholly out of proportion to their
feasibility of an engineering control, the longstanding enforcement procedures expected benefits.
Commission has ruled that we must that we currently use for enforcement of In situations where we find that the
assess whether the costs of the control our interim DPM limit and for our other mine operator has not installed all
ER18MY06.001</GPH>
are disproportionate to the ‘‘expected exposure-based standards at M/NM feasible controls, we will issue a citation
and establish a reasonable abatement to $659,987 for the largest precious comments received from the mining
date. Based on a mine’s technological or metals mines (based on over 500 miners industry, other data in the DPM
economic circumstances, the standard and 133 pieces of diesel-powered rulemaking record, information received
gives us the flexibility to extend the equipment per mine). Our average from NIOSH, our compliance assistance
period within which a violation must be estimated compliance cost for the reports and activities, and our
corrected. If a particular mine operator industry as a whole to achieve the experience with enforcing the interim
is cited for violating the DPM final limit, interim and final limits was about limit, we began to question whether it
but that operator believes that the $128,000 per year per mine in 1998 was feasible for the industry to attain
standard is technologically or dollars, or about 0.68 percent of the compliance with the final limit by
economically infeasible for that mine’s annual revenues, on average. Of January 20, 2006. As we discussed in
operation, the operator ultimately can that amount, about $90,000 per mine, on the preamble to the 2005 NPRM, the
challenge the citation in an enforcement average, was our estimated yearly applications engineering and related
proceeding before the Commission. compliance cost to meet the interim technological and economic
We have found that most of the limit of 400TC µg/m3. These estimates implementation issues that we believed
practical and effective DPM controls were reduced by a negligible amount in would have been easily resolved by then
that are available, such as DPFs, the 2005 final rule, due largely to the were more complex and extensive than
ventilation upgrades, enclosed cabs elimination of the provisions on DPM previously thought. We still believed
with filtered breathing air, alternative control plan and required approval from the mining industry could reach
diesel fuels, low-emission engines, and the Secretary to use respiratory compliance with the 160TC µg/m3 final
various work practice and protection. As shown in Table IX.5 of limit; however, we had determined that
administrative controls, have the this preamble, the estimated compliance the original schedule for attaining the
potential to achieve a 25% reduction in cost to move from the interim limit to final limit was too ambitious for a
DPM exposure. The actual percentage the final limit of 160TC µg/m3 is about significant portion of this industry.
reduction obtained varies from $50,000 per mine in 2004 dollars. In the 2005 NPRM, we acknowledged
application to application depending on The 2001 final rule established DPM the implementation issues and proposed
the nature of the exposure and the limits that were to be phased-in in two modifying our phase-in schedule with
specific choice of control or controls steps over five years, starting with 308EC the intention of establishing a more
applied. For example, a DPF might µg/m3, which is comparable to the 400TC realistic regulatory timetable for
reduce DPM tailpipe emissions from a µg/m3 that became effective July 20, reaching the final limit. Rather than
piece of diesel-powered equipment by 2002, 18 months after promulgation, requiring compliance with the 160TC µg/
95%. However, the equipment followed by a final limit of 160TC µg/m3 m3 final limit by January 20, 2006, we
operator’s actual exposure could be that was to become effective three-and- proposed phasing-in the final limit in
reduced by more than 95% if an one-half years later. Our intent with five steps over a five year period, and
enclosed cab with filtered breathing air respect to the phased-in DPM limits in in 50TC µg/m3 reductions for each year.
is also provided, or the reduction could the 2001 rule and in subsequent The initial final limit would have been
be less than 95% if other diesel- rulemaking was to provide the industry 308EC µg/m3 on January 20, 2006; 350TC
powered equipment without filtered with adequate time to familiarize itself µg/m3 on January 20, 2007; 300TC µg/m3
exhaust is operated in the same area. with DPM control technology so mine on January 20, 2008; 250TC µg/m3 on
We have consistently advised the operators could make informed January 20, 2009; 200TC µg/m3 on
industry that DPM controls should be decisions regarding selection and January 20, 2010; and finally 160TC µg/
selected based on a thorough analysis of implementation of controls, train miners m3 on January 20, 2011. Our goal in
the circumstances and conditions at properly on the use and maintenance of proposing this five-year phase in was to
each mine. This final rule affords each the controls before the limits became provide the additional time we believed
mine operator the flexibility to select effective, and spread the cost of controls the industry needed to attain the final
the DPM controls that are appropriate over a multi-year period. As noted 160TC µg/m3 limit, while at the same
for their site-specific conditions. We above, our Regulatory Economic time, assuring steady progress would be
have also advised that similar Analysis (REA) for the 2001 final rule made during that period to reduce
equipment may require different DPM determined that total annual miner exposures to DPM. In the NPRM,
controls due to different duty cycles or compliance costs would average we asked for comments on this schedule
operating conditions. For example, a $128,000 per mine for the industry as a for phasing in the final limit, and on
platinum-catalyzed passively- whole, primarily for DPM controls. other issues.
regenerating DPF might be successfully These costs represented about 0.68% of After analyzing the information and
applied on one piece of equipment, but annual industry revenue. We believed data obtained from the comments we
it may fail on a similar piece of that the multi-year phase-in of the DPM received on the 2005 NPRM, we have
equipment owing to different duty limits would serve to reduce the extended the amount of time we believe
cycles. Even if applied on similar economic impact on affected mines by the industry will need to attain
machines with similar duty cycles, such encouraging purchases of controls compliance with the 160TC µg/m3 final
a DPF might be successfully applied on gradually over several years. limit beyond what was promulgated in
one machine but be unsuitable for the At the time the 2001 final rule was the 2001 final rule. Based on this new
other because it is operated in an area issued, based on the availability of information and data, we now believe
of the mine having marginal ventilation, controls we understood could be that requiring compliance with the final
which could result in elevated NO2 implemented by mine operators to limit in three steps over two years,
exposures. attain compliance with the respective namely 308EC µg/m3 by May 20, 2006,
Our compliance cost estimates from limits, we believed the phase-in 350TC µg/m3 by January 20, 2007, and
the 2001 final rule (not adjusted for schedule of 18 months to reach the 160TC µg/m3 by May 20, 2008, is
inflation) ranged from $31,373 per year interim limit and five years to reach the feasible. This timeframe for
for the smallest nonmetal mines (based final limit would provide sufficient time implementing the final limits will
on fewer than 20 miners and 2.2 pieces for the entire industry to attain produce the maximum degree of miner
of diesel-powered equipment per mine) compliance. However, based on the protection from DPM exposure that is
both technologically and economically implementation of further engineering sampling procedures dictate that when
feasible for the M/NM underground and administrative controls until the we conduct enforcement sampling, we
mining industry, as a whole, to achieve. final 160TC µg/m3 limit becomes sample those miners whom we believe
We continue to believe that effective in May 2008. will have the highest exposures. Thus,
establishing a final limit lower than We believe that the current typical or average exposures for the
160TC µg/m3 is not economically rulemaking record fully supports the industry as a whole would likely be
feasible for the industry. Reducing the economic feasibility of the initial phase- lower than these values. We have
final limit below 160TC µg/m3 would in final limit of 308EC µg/m3, and the determined that the degree of
require costly ventilation upgrades, final limit of 160TC µg/m3. We have no compliance demonstrated in our
replacement of most older mining new data or information in the enforcement sampling and the cost of
equipment, and considerably increased rulemaking record justifying change to available control technology support our
use of DPFs on large numbers of, if not our 2005 cost estimates for the interim conclusion that the final limits are
on all, underground diesel powered limit of 308EC µg/m3. We stated in our economically feasible for the industry as
equipment. 2005 final rule that a PEL of 308EC µg/ a whole within the prescribed
In our 2005 NPRM, where we m3 was economically feasible for the M/ timeframes. Our enforcement sampling
proposed our five-year phase in of the NM mining industry and provided results also demonstrate the magnitude
final limit, we tentatively concluded considerable discussion in support of of the compliance difficulties the M/NM
that the 2001 160TC µg/m3 final our position. mining industry would have
concentration limit presented a Regarding the 2001 final limit of experienced in meeting the 160TC µg/m3
significant challenge to a large portion 160TC µg/m3, we stated in the 2005 final limit by the May 2006 effective
of the underground M/NM mining final rule that the evidence in the date.
industry and that compliance may not current DPM rulemaking record was We provide for consideration of
be feasible by January 2006. We also inadequate for us to make compliance difficulties on a mine-by-
stated that: determinations regarding revision of the mine basis in our existing use of
final DPM limit at that time. We hierarchy of controls and provisions on
Our experience since January 2001 has requested comments on the feasibility of special extensions, which apply to the
raised questions on technological feasibility
the mining industry to comply with a final limits. We are satisfied that the
for the mining industry as a whole, rather
than for a small number of individual mines,
final limit of less than 308EC µg/m3. rule itself and our DPM enforcement
to meet the 160 TC concentration limit by Although we did not revise the final policy take into account the financial
January 20, 2006. limit in the 2005 final rule, we did difficulties on an individualized basis,
revise the special extension requirement which we believe will effectively
We specifically requested comments on to provide one year, renewable, accommodate an individual mine
the economic feasibility of the final extensions of time for mine operators in operator’s economic concerns,
concentration limit of 160TC µg/m3 and which to comply with the final limit, particularly those of small mine
our proposed phase-in approach. based on either economic or operators.
We also acknowledged in the 2005 technological constraints, but continued We further recognize that there
NPRM that significant compliance to prohibit newer mines from applying currently are significant implementation
difficulties may be encountered at some for extensions (70 FR 32966). issues, both economic and
mines due to implementation issues and Additionally, in this 2006 final rule, we technological, that would make it
the cost of purchasing and installing have removed the prohibition on newer infeasible for the industry to comply
certain types of controls. We requested mines from applying for a special with the existing 160TC µg/m3 final limit
additional information regarding these extension. Consequently, all mine by May 2006. In our 2005 NPRM, we
technological difficulties and whether operators will be able to apply for a one- proposed a five-year phase in of the
they would increase the cost to comply year, renewable special extension of final limit to address the remaining
with the final concentration limit above time to comply with each of the final feasibility issues and asked for
that estimated in the 2001 final rule. limits, including the final limit of 308EC comments on the technological and
In addition, we proposed to eliminate µg/m3, 350TC µg/m3, and 160TC µg/m3. economic feasibility of this approach.
§ 57.5060(c)(3)(i) which prohibits new The rulemaking record provides Based on our analysis of the comments
mines from applying for special numerous examples of successful use of received, the entire rulemaking record,
extensions and requested comments on effective DPM controls. Our our current enforcement strategy for
the benefits (including cost savings) of enforcement sampling record from enforcing the final limits, and our
doing so. Lastly, we requested November 2003 to January 2006 shows experience with DPM control
comments on the costs to mine that 82% of the 1,798 samples we technology and costs, we believe that
operators for implementing a rule collected were below the 308EC µg/m3 compliance with the 160TC µg/m3 final
requiring medical evaluation and interim limit, 78% were below the limit can be achieved in a shorter
transfer of miners. In response to these January 2007 final limit of 350TC µg/m3, timeframe than the five years that we
requests, we received numerous and 46% were below the May 2008 final proposed. We are encouraged by the
comments on the economic feasibility of limit of 160TC µg/m3. Additionally, 46% considerable progress we have seen to
meeting a final limit of 160TC µg/m3 of the mines sampled had at least one date in reducing DPM levels and in the
within the proposed phase-in sample over 308EC µg/m3, 55% over many successful implementations of
timeframes, as well as on other 350TC µg/m3, and 82% of the mines DPM controls addressed in the
provisions of the proposed rule, which had at least one sample over 160TC µg/ following discussion.
we discuss in detail below. m3. It should be noted that we do not As stated in our 2005 final rule, ‘‘The
We believe that the reduction from consider these sample results to trends in DPM control technology
308EC µg/m3 to 350TC µg/m3 in January necessarily represent typical or average development, especially DPFs, indicate
2007 will provide necessary incentive exposures for the industry as a whole that manufacturers are creating more
and experience for mine operators to because we do not randomly select the innovative designs. MSHA believes that
continue to work out their remaining miners to be sampled. Following good more cost effective control methods are
feasibility issues and not to delay industrial hygiene practice, our on the horizon.’’ Another new
development that supports reducing the for the industry as a whole. Other removed by subtracting the 4th organic peak
proposed five year phase-in of the final commenters stated that no delay is from the analysis. No reasonable method of
limit to the two year phase-in justified because there is strong sampling was found to eliminate
interferences from oil mist or that would
established in this rule is the significant evidence in the rulemaking record that
effectively measure DPM levels in the
DPM emission reductions achieved full compliance with the 160TC µg/m3 presence of environmental tobacco smoke
through the use of high biodiesel final limit is both technologically and (ETS) with TC as the surrogate * * *
content fuel blends, coupled with the economically feasible at this time for the MSHA has found that the use of EC
federal excise tax credit for biodiesel, industry as a whole. Still other eliminates potential sampling interference
and the rapidly growing availability of commenters indicated that it was from drill oil mist, tobacco smoke, and
this alternative diesel fuel throughout impossible to estimate the industry’s organic solvents, and that EC consistently
the country. Although we acknowledge compliance costs for attaining the final represents DPM. In comparison to using TC
as the DPM surrogate, using EC would
the high cost of some DPM controls, we exposure limit at this time. This is impose fewer restrictions or caveats on
do not believe they are significantly because they contend that feasible sampling strategy (locations and durations),
different from our estimated compliance technology for complying with this limit would produce a measurement much less
costs in the 2001 final rule, and we have is not yet available and will not be subject to questions, and inherently would be
identified many lower cost options. available in the foreseeable future. more precise. Furthermore, NIOSH, the
In the 2001 final rule, we estimated Comments relating to our economic scientific literature, and the MSHA
that the yearly cost of the rule would be feasibility determinations regarding the laboratory tests indicate that DPM, on
about 0.68% of annual industry final limit are discussed in this section. average, is approximately 60 to 80%
revenues, which was less than the 1% elemental carbon, firmly establishing EC as a
Comments addressing technological valid surrogate for DPM.
‘‘screen’’ for costs relative to revenues feasibility were discussed previously in
that we use as a presumptive benchmark this section. Some industry comments contained
of economic feasibility (66 FR 5889). In A few commenters stated that in Section VII of the 31-Mine Study
the 2005 final rule, we determined that compliance with the final DPM limit final report state that, ‘‘Fears about
the 308EC µg/m3 interim limit was would be cost prohibitive for their using Method 5040 have been allayed,
economically feasible for the M/NM mines, and that business failure could but potential interference from ETS, oil
mining industry. In Table IX.5 of this result from their attempt to comply. Our mist, and ANFO are too great to permit
preamble, we estimate that the total technological and economic feasibility using TC as a measure of DPM. Single
yearly costs for the underground M/NM assessments of the final rule lead us to samples and area samples are
mines using diesel equipment to move a different conclusion with respect to inappropriate.’’ As noted below, our
from the current 308EC µg/m3 interim the possibility that business failures will enforcement sampling procedures were
limit to the 350TC µg/m3 and 160TC µg/ occur as a result of implementing the subsequently changed to incorporate
m3 final limits contained in this rule are final DPM limit. personal sampling only, and the DPM
$8,454,853. As previously shown in Several commenters suggested that surrogate was changed to EC to
Table V–2 of this preamble, these yearly our ‘‘prior economic feasibility eliminate potential non-DPM sources of
costs are less than 0.2% of annual conclusion is based on improper OC from interfering with DPM
industry revenues, well below our 1% sampling and analysis, inaccurate and determinations based on TC.
‘‘screen’’ that we use as a presumptive incomplete data, and incorrect Regarding the effectiveness of the SKC
benchmark of economic feasibility. assumptions.’’ Regarding the issue of DPM sampler with integral submicron
In this rulemaking to consider a sampling and analysis, our economic impactor in the presence of ore dust, the
phased-in approach to the final feasibility assessment for the 2001 final industry comments contained in Section
exposure limit of 160TC µg/m3, we used rule was based on personal, III–B of the 31-Mine Study final report
economic feasibility information from occupational, or area sampling using a state that, ‘‘The impactor works in most
the entire rulemaking record supporting respirable dust sampler equipped with a applications.’’ The industry comments
the 2001 final rule, the 2005 final rule, submicron impactor, and analysis of on this section also stated that, ‘‘The
comments in response to the 2005 samples for TC (EC plus OC) in industry is perplexed about possible
NPRM, and our experience gained with accordance with NIOSH Analytical continued interference in gold mines
control technology since 2001. We also Method 5040. The DPM rulemaking with graphitic ores.’’ However, the 31-
used information obtained subsequently record contains evidence supporting the Mine Study final report states that, ‘‘For
and entered into the rulemaking record, positions of both MSHA and NIOSH typical samples collected in gold mines,
including data from the published regarding the performance of the SKC the interference from elemental carbon
literature, data developed by us through sampler. Among the conclusions drawn from gold ore would be less than 1.5
MSHA Technical Support from the 31-Mine Study and included in µg/m3.’’
investigations, public comments and the preamble to the 2005 final rule were In the 2005 final rule, we modified
testimony, and our enforcement the following (70 FR 32871): our compliance sampling strategy to
experience relating to the interim PEL of utilize personal sampling only, which is
• The analytical method specified by the
308EC µg/m3. the sampling strategy used by us for
diesel standard gives an accurate measure of
As stated above, we received the TC content of a filter sample and the
determining compliance with our other
numerous comments on the economic analytical method is appropriate for making full-shift exposure-based standards for
feasibility of the 2005 NPRM. Some compliance determinations of DPM airborne contaminants, and we changed
commenters disagreed with our exposures of underground metal and the DPM surrogate from TC to EC for the
analytical method and the data we used nonmetal miners. interim limit. The change to EC as the
to estimate compliance costs, and • SKC satisfactorily addressed concerns DPM surrogate was made to eliminate
over defects in the DPM sampling cassettes
suggested that actual compliance costs the potential for sampling interferences
will be much higher than our estimates. and availability of cassettes to both MSHA from non-diesel sources of OC, such as
and mine operators * * *
Consequently, they disputed our • The submicron impactor was effective in drill oil mist or tobacco smoke, from
tentative conclusion that compliance removing the mineral dust, and therefore its causing erroneous TC analytical results.
with the phased-in final limits as potential interference, from DPM samples. Our 2005 final rule on the interim DPM
proposed will be economically feasible Remaining interference from carbonate is exposure limit incorporated these
changes, as does the current rulemaking, examination of equipment suspected of the technological feasibility section of
with the exception that we will needed emissions maintenance, this preamble and throughout the
undertake a separate rulemaking to training, etc. rulemaking record, we have established
convert from TC limits to EC limits for Some commenters believe that we the feasibility of the various controls
the 350TC µg/m3 and 160TC µg/m3 final made incorrect assumptions in that are required to attain compliance
limits. performing our economic feasibility with the new final limits in accordance
Regarding the use of inaccurate or assessments. The Regulatory Economic with the phased-in dates.
incomplete data for determining Analysis (REA) for the 2001 final rule Through the comments received
economic feasibility, some commenters was based on our determination that the during our DPM rulemakings,
suggested that the 2001 economic most significant compliance cost compliance assistance visits to mines,
feasibility assessment should have been component would be the cost of DPM and our enforcement experience with
based on a representative sampling of controls to meet the respective DPM the 2001 and 2005 final rules, we have
all the underground mines affected by limits, accounting for 96% of the total learned that the vast majority of mine
the rule. These commenters take the cost of compliance. Our cost estimates operators have acquired at least a few
position that since the standard affects for these controls were originally based EPA Tier 1 and Tier 2 engines, and
mines producing 24 different major on a compliance strategy that assumed many have fleets that are comprised of
commodities, our 2001 assessment that the interim limit would be attained 40% to 50% or more of such engines.
should have included consideration for primarily by replacing engines, Despite disagreeing with our proposed
the impact of the standard on a installing oxidation catalytic converters, rule, a stone mining operator with seven
representative sample of mines and ventilation improvements. We underground mines commented that all
producing each commodity. The further assumed that the final limit new equipment purchased at two of
commenters also suggest that our would be attained primarily by adding their mines were supplied with EPA
practice of comparing the industry-wide environmental cabs with filtered Tier 3 engines, and they have plans to
cost of compliance to the industry’s breathing air and installing DPM filters. similarly upgrade the remaining
annual revenue is inappropriate. They We recognized that mine operators had equipment at those mines. Three other
indicate that this method ignores the the flexibility to choose the engineering stone mining operators who also
fact that international commodity and administrative controls that best disagreed with our proposed rule,
markets determine the viability of mines suited their mine-specific circumstances nonetheless, volunteered similar
by setting market prices for their and conditions. However, for costing information. One reported they had
production, and that annual revenues of purposes, the above compliance recently acquired a new loader, drill,
hundreds of millions, if not billions, of strategies were assumed. Based on and scaler, all with EPA Tier 2 engines.
dollars have not prevented the domestic extensive industry comments on the Another reported acquiring two new
underground M/NM mining industry Preliminary Regulatory Economic haulage trucks in 2005 at a cost of over
from shrinking in recent years. Analysis (PREA) for our 1998 proposed $600,000. The third operator indicated
We believe that the method we used rule, we modified our cost estimates to that,
to determine economic feasibility is favor diesel particulate filter systems Before the initial inventory was even
valid. In the 2001 final rule, we and cabs for compliance with the required, we immediately replaced our
subdivided the industry both by mine interim limit, and more filters, 1970’s haul trucks with trucks built in the
size class and commodity sector. The ventilation and the turnover of engines 1990’s. Later we removed a 1992 loader for
mine size classes were under 20 for compliance with the final limit. Our a 1999 loader with a Tier 2 engine. We have
employees, 20 to 500 employees, and 2001 REA was based on this modified recently purchased a newer roof-scaler with
over 500 employees. The commodity compliance strategy. a Tier 2 engine. We have retrofitted one of
sectors grouped mines according to the The modified compliance strategy our drills with a Tier 2 engine, and are
looking at buying a new drill to replace our
commodity produced. The commodity results in estimated industry-wide
second drill.’’
sectors were stone, precious metals, compliance costs that we believed were
other metals, evaporates, and other. The economically feasible for the industry as Use of low emission engines has also
resulting matrix comprised the five a whole. The original estimate of $19.2 been common in the western multilevel
commodity groups with three mine size million in annual compliance costs was metal mines. Despite opposing our
classes within each commodity group. revised upward to $25.1 million as a proposed rule, one mine operator said
Compliance costs were estimated for result of the comments received on the that replacement of old engines with
mines within each size class and 1998 proposed rule. Our economic new cleaner engines, where practicable,
commodity group based on mining analysis for the 2005 final rule on the began in 2003. Such engine
methods and equipment common for interim limit actually showed a slight replacements have now become a
those specific types and sizes of mines. decrease in compliance costs of $3,634 primary focus of our efforts to control
Using this methodology, all annually, primarily due to reduced DPM. Another operator who opposed
underground M/NM mines were recordkeeping requirements from our proposed rule indicated they have
included in our economic analysis, even elimination of the DPM control plan and conducted a proactive engine campaign
though compliance costs were not required approval from the Secretary to to replace higher DPM emitting engines
necessarily determined on a mine by use respiratory protection (70 FR with newer EPA Tier 1 and Tier 2 rated
mine or individual commodity by 32944). The 2005 final rule analysis, engines. To date, 68% of the
individual commodity basis. however, did not address the economic underground equipment is powered by
Compliance cost estimates were impact of the final DPM limit of 160TC EPA Tier 2 rated engines. A third
included for each of the major µg/m3. operator who also disagreed with our
provisions of the standard, such as DPM The commenters further stated that proposed rule reported they have
controls to attain the DPM limit (DPM the compliance strategy used for repowered eight pieces of equipment at
filters, equipment cabs, and ventilation), developing compliance cost estimates their mine. A mining industry
newly introduced engines, paperwork was based on, ‘‘incorrect assumptions of organization commented that, ‘‘* * * as
costs associated with applying for a applicable and feasible controls.’’ our members replace their old engines
special extension, tagging and However, as discussed extensively in with new cleaner engines, that effort
will reduce the DPM exposures of power requirements, achieved through rule. The recent rise in diesel fuel prices
miners.’’ A comment from another mine more efficient deployment of booster does not affect the 1% ‘‘screen’’ for
operator indicated that during the last fans. Over 60% of the overall $9,000,000 compliance costs relative to industry
two years, they had, ‘‘purchased fifteen project cost, when annualized, was annual revenue that we use as a
Tier 2 engines that, along with thirty offset by this electrical power cost presumptive benchmark of economic
Tier 1 engines, constitute 42% of the savings. feasibility. Higher fuel prices would
current underground fleet and 54% of Through the comments submitted to actually make the purchase of low DPM-
the total horsepower.’’ the rulemaking record, the NISOH DPM emitting engines more attractive because
Some commenters noted they have workshops in 2003, and our compliance they also have better fuel economy
also made improvements to their assistance visits to mines affected by the compared to the older technology high
ventilation systems, such as upgraded rule, we have learned that, although DPM emission engines. More
auxiliary ventilation systems, more many of the metal mines have importantly, we also note that the prices
booster fans, and better maintenance of experimented with DPM filters, of the various commodities that are
ventilation control structures. Examples comparatively few are relying on filters produced in underground M/NM mines
include a mining company that operates as their primary means of complying have also gone up since 2001. For
several underground stone mines, with the interim limit. Also, example, between 2001 and 2005, the
which commented, environmental cabs are in widespread price of gold increased 108%, zinc 53%,
use throughout the industry; however, platinum 64%, crushed stone 11%, lead
All [of our] mines have performed major
ventilation upgrades, which include comparatively few such cabs have been 40%, and rock salt 19%. The
installation of new larger portable fans that retrofitted to existing equipment as a commenter has not established that the
are used at active headings to help direct air primary means of compliance with the industry’s relative financial position
flow, installation of larger main ventilation interim limit. Indeed, several compared to 2001, if it has changed at
fans at two mines, installed larger booster commenters provided information on all, has been so altered by a general rise
fans in the duct tubing at three mines, the high cost of retrofitting cabs to in prices that compliance with the final
installed new ventilation stoppings and existing equipment, indicating why cab rule is economically infeasible.
curtains at various locations throughout the retrofits were not the first option for In responding to the commenter’s
mine at all mines, [and] replaced less
attaining compliance. Since the final second point, the technological
efficient ventilation fans with high volume/
low pressure fans. rule is performance-oriented and gives feasibility of DPM controls was
mine operators flexibility to choose the discussed in detail previously in this
Another stone mine operator reported DPM engineering and administrative section of the preamble. In the 2005
they had, ‘‘installed a third vertical air controls that are best suited to their NPRM, we proposed a five year phase-
shaft in our mine, we have added unique circumstances and conditions, it in of the final DPM limit to allow mine
brattice cloth for over 25 rooms and is not surprising that other compliance operators the extra time they would
adjusted brattice cloth throughout our strategies have also been employed, need to overcome technological and
mine, changed traffic patterns, and such as utilization of alternative diesel economic implementation issues with
utilized portable fans.’’ fuel (high biodiesel content blends and DPM controls. Based on new
Western multilevel metal mine diesel-water emulsions) and information, primarily relating to DPM
operators also upgraded ventilation implementation of a wide array of work filters and biodiesel fuel, we have
systems. One operator of several practice and administrative controls. shortened the final limit phase-in period
underground gold mines reported But by far the most common strategies from five to two years. However, we
upgrading a spray chamber, developing employed throughout the industry to believe this compliance schedule,
a new entrance drift and mine portal, attain compliance with the interim limit coupled with provisions in the final rule
and using large auxiliary fans to have been low DPM emitting engines relating to special extensions of time in
increase heading ventilation. A large and ventilation improvements, which which to meet the final limit, will
base metal mine operator reported were the basis for our original enable the entire industry to attain
purchasing 17 new auxiliary fans that compliance cost estimates. compliance.
were one-third more powerful than the One commenter suggested that we Regarding the comments concerning
existing fans and also upgrading conduct a full regulatory impact the role of international commodity
ventilation system maintenance. analysis to assess the true economic cost markets in determining the viability of
A few mine operators have completed of our proposal. This commenter mines by setting market prices for their
major ventilation system upgrades, disagreed with the manner in which we production, our use of industry annual
including new ventilation shafts and fan updated the 2001 REA, since significant revenue tacitly incorporates the effects
installations. However, it is not clear changes have occurred since then in the of ever-changing commodity prices. As
whether all operators that reported such American economy, namely changes in prices rise, industry annual revenue
upgrades did so entirely to attain fuel prices due to war and natural rises, and as prices fall, industry annual
compliance with the DPM interim or disasters. This commenter also believes revenue falls. Although commodity
final limit. For example, despite the that DPM controls are more costly than prices are indirectly incorporated into
mine operator’s claims to the contrary, we projected and questioned whether our analysis, however, for purposes of
our detailed analysis of a ventilation these controls are effective. Overall, this determining the economic feasibility of
system improvement project costing commenter believes that we grossly a rule, the dollar amount of the
over $9,000,000 at a western multilevel underestimated compliance costs in our industry’s annual revenue is not by
metal mine indicated that some or most 2001 final rule. We are unaware of a itself determinative. Both prices and
of these upgrades would have been change in the American economy production determine industry annual
necessary anyway to accommodate presented by the commenter other than revenue. Compliance costs that are only
planned production increases and other the price of fuel, which we agree has a small percentage of industry revenue
non-DPM related purposes. One gone up since 2001. However, the help to establish economic feasibility.
outcome of this ventilation upgrade was commenter did not relate a rise in fuel We have customarily used yearly
a 1,000 horsepower reduction in the prices with the economic feasibility of compliance costs of greater than 1% of
ventilation system’s total electrical industry compliance with the subject annual industry revenue as our
screening benchmark for determining employee hour for the specific feasible control strategy, or the optimal
whether a more detailed economic commodity each mine produced, and control strategy for that mine.
feasibility analysis is required. The multiplying that amount by the number Since the completion of the 31-Mine
commenters correctly point out that of annual employee work hours Study, we have observed that mine
despite hundreds of millions, if not reported to us for that mine. This operators in the stone industry, for
billions, of dollars of industry annual methodology assumes that each mine’s example, have chosen to attain
revenue, business failures can and do annual revenues would be roughly compliance without utilizing DPFs.
occur, and over a period of decades, the proportional to each mine’s share of the These operators instead have opted to
characteristics of an industry can industry’s total employee work hours. upgrade ventilation (usually by adding
change markedly. However, by utilizing Thus, our estimates, while not or re-positioning booster fans and
the 1% of annual revenue screening necessarily exact for each mine, were a installing or repairing ventilation
benchmark, we assure that a new MSHA reasonable approximation for those control structures such as air curtains
rule will not significantly affect the mines based on industry averages. This and brattices); install low-emission
viability of an industry. methodology does not explicitly engines; utilize equipment that is
While it is true that individual supplied by the original equipment
incorporate a cost per ton factor.
business failures can and do occur, and manufacturer (OEM) with cabs with
However, implicit in this methodology,
that over a period of many years, filtered breathing air; initiate a variety of
substantial portions of a domestic based on the U.S. Geological Survey’s
estimates of rock salt production in work practices that contribute to
industry can be adversely affected by, reducing personal exposures to DPM;
for example, international competition, 2000 of 45,600,000 metric tons valued at
$1,000,000,000, would be a cost per and in a few cases, use alternative diesel
MSHA believes it is highly improbable fuels such as bio-diesel fuel blends and
that such events would be set into metric ton of $21.93 (equivalent to
$19.89 per short ton), which is actually diesel/water emulsions.
motion by a rule imposing costs equal
slightly less than the commenter’s Regarding the question of the 31
to or less than 1% of industry annual
estimated price of $20 to $25 per ton. mines being unrepresentative of the
revenue. Threats to an entire industry’s
Thus, we have no information about industry as a whole, we note that the
competitive structure and resulting large
how the commenter came up with a mines were selected jointly by us and
scale dislocations within an industry
price of $50–$70 per ton of salt the DPM litigants, and all parties
sector are typically caused by
purportedly used in our analysis. As collaborated in the study design.
fundamental changes in technology,
permanent downward pressure on demonstrated above we implicitly used Although an attempt was made to
demand for a commodity due, for a cost per metric ton of $21.93. include a variety of commodities in the
example, to the introduction of a study, the selected mines were not ever
Several commenters stated that our intended by us or the collaborators to be
superior substitute material, world-wide compliance cost estimates in the ‘‘31-
or regional business cycles, etc. a statistically representative sample of
Mine Study’’ were unrealistically low the industry.
A commenter suggested that the because we didn’t recommend major
economic feasibility analysis in the 31- In a related comment, an industry
ventilation upgrades for any of the organization asserted that our
Mine Study was flawed because our mines in the study. Other comments
unit prices for commodities were subsequent ‘‘baseline’’ sampling was
relating to the ‘‘31-Mine Study’’ were ‘‘similarly non-representative.’’ The
significantly in error. For example, rock that the mines included in the study
salt for highway de-icing (the primary sampling to which this commenter
were not representative of the industry refers was conducted by us in 2002 and
market for the three rock salt mines
as a whole, that we voided 25% of the 2003 in accordance with a provision of
included in the study) reportedly sold
samples collected, that we eliminated the second partial settlement agreement.
for about $20–$25 per ton when the
four mines from the study, and that we As described in the preamble to the
analysis was made. Yet, this commenter
significantly underestimated 2005 final rule (70 FR 32873–32874),
went on to say that our estimates for
revenues and likely annual production compliance costs for the Stillwater Mine
near Nye, MT, which was one of the Under the second partial DPM settlement
levels for the three salt mines appeared agreement, MSHA agreed to provide
to indicate that a price of about $50–$70 mines included in the study. In compliance assistance to the M/NM
per ton was used in our analysis. responding to the question of major underground mining industry for a one-year
We are not persuaded by commenter’s ventilation upgrades, we noted in the period from July 20, 2002 through July 19,
view that the economic feasibility preamble to the 2005 final rule (70 FR 2003. As part of its compliance assistance
analysis for the 31-Mine Study is 32921) that we did not specify any activities, MSHA agreed to conduct baseline
invalid because we used erroneous major ventilation upgrades in the 31- sampling of miners’ personal exposures at
Mine Study because, based on the study every underground mine covered by the 2001
commodity prices. For the 31-Mine final rule. Our baseline sampling began in
Study, we did not have access to actual methodology, the analysis did not
October 2002 and continued through October
annual revenue data for the 31 mines in indicate the need for major ventilation 2003. During this period a total of 1,194 valid
the study, so we indirectly estimated upgrades in order to attain compliance baseline samples were collected. A total of
annual revenues using our data on the with either the interim or final DPM 183 underground M/NM mines are
number of employee work hours in 2000 limits at any of the 31 mines. We further represented by this analysis * * * MSHA
for each mine, the total number of went on to explain that the purpose of [included] 320 additional valid samples [in
employee work hours reported to us in specifying controls for each mine in this the analysis of baseline sample data] because
2000 by all mines producing that study was simply to demonstrate that MSHA decided to continue to conduct
commodity, and data from the U.S. feasible controls capable of attaining baseline sampling after July 19, 2003 in
response to mine operators’ concerns.
Geological Survey on the industry-wide compliance existed, and to provide a

value of mineral production by framework for costing such controls on We are unclear as to why the
commodity for the year 2000. We a mine-by-mine basis. We explicitly commenter would characterize the
estimated annual revenues for a stated in the final report that the DPM baseline sampling as ‘‘non-
particular mine by determining the controls specified for a particular mine representative,’’ as it included all
industry-wide production value per did not necessarily represent the only underground M/NM mines that were in
operation during this period of over one Several commenters repeated their platinum washcoated passively
year. concerns expressed in previous public regenerating filters, active on-board
Regarding voided samples, of the 464 comments that the 2001 final rule and filters, active off-board filters, a fuel
samples obtained at the 31 mines, 106 subsequent economic feasibility burner type active regenerating system,
were voided. A key consideration in the assessment for the 31-Mine Study relied and disposable filter element systems.
sampling conducted at the 31 mines was on quantitative analyses supported by a The company has also evaluated a
to insure, to the extent possible, that ‘‘flawed’’ computer simulation program. diesel-water emulsion fuel and various
samples were not contaminated by non- They believe that the Regulatory biodiesel blends, and the company has
diesel sources of airborne carbon. Economic Analyses for all of our DPM made significant improvements to the
Testing had verified that the submicron rulemakings, from the original 2001 mine’s ventilation system in recent
sampler would remove mineral dust final rule to and including the current years.
contamination (limestone, graphite, rulemaking, are invalid because they Most of the comments relating to this
etc.), but tobacco smoke, drill oil mist, incorporate analytical results obtained mine, submitted both by the mine
and possibly vapors from ANFO loading from this program. operator and various other mining
could contaminate a sample filter with As discussed in the section on companies and organizations, suggest
non-diesel organic carbon. Thus, in technological feasibility, the computer that the failure to attain full and
accordance with the study protocol that program in question, referred to as the consistent compliance with the interim
had been jointly developed and DPM Estimator, is a Microsoft Excel DPM limit at this mine, despite vigorous
approved by both us and the litigants, spreadsheet program that calculates the and sustained efforts by the company,
any sample that was known to have reduction in DPM concentration that are evidence that neither the interim
been, or could potentially have been can be obtained within an area of a mine DPM limit nor the final DPM limit are
contaminated with such an interferant by implementing individual, or technologically feasible. They also point
was voided. Of the 106 voided samples, combinations of engineering controls. out that the funds expended by the
61 were voided due to interferences. The two specific ‘‘flaws’’ identified by company thus far in its effort to attain
There were also some samples that were the commenters are, ‘‘assumptions of compliance have been excessive, and
voided for other reasons, such as the availability of filters that would fit that this experience therefore
laboratory error (2 samples), sample the entire fleet of equipment in use, and demonstrates the economic infeasibility
pump failure (22 samples), or assumptions of perfect ventilation of the rule as well.
incomplete sample or sampling the conditions throughout the industry.’’ We have found through our Technical
wrong location (21 samples). Including We have responded previously to both Support assistance and enforcement
any of these 106 voided samples in the of these comments, as well as to other experience that this mine operator, in
data analysis would have cast doubt on criticisms of the Estimator. We have time, could achieve more consistent
the validity of the study. shown that suitable DPM filters were, compliance with the DPM interim limit
In response to the comment that four and continue to be, available to mine and attain the final DPM limits if they
mines were eliminated from the study, operators that are capable of attaining would install effective engineering and
of the 31 mines selected to participate; the final DPM limits within the administrative controls. Although this
only one was eliminated. This mine was timeframes established in the final rule, mine operator has experimented with a
not eliminated per se. DPM samples and that the Estimator does number of DPM control technologies,
were obtained at this mine; however, appropriately account for complex some of these trials were of quite
none of these samples were included in ventilation effects. Our responses to the limited scope and duration. Several
the data analysis because they all had to previous criticisms on the Estimator and were conducted as a part of
be voided due to interferences. to the comments on the Estimator collaborative studies with the NIOSH
The underestimation of compliance submitted to this rulemaking are Pittsburgh Research Laboratory under
costs for the Stillwater Mine in the 31- detailed in the technological feasibility the auspices of the NIOSH M/NM Diesel
Mine Study was also discussed in the section of this preamble. Partnership. While it is true that this
preamble to the 2005 final rule (70 FR A number of comments related either mine operator has evaluated numerous
32924). We acknowledged that the DPM directly or indirectly to activities at the DPM control technologies, only a few
compliance costs for this mine would Stillwater Mine near Nye, MT. The have been the subject of sustained and
probably be significantly higher than we Stillwater mine is a large multilevel intensive applications engineering
reported in this study because, as we platinum mine that operates 24/7 with efforts that we believe are required to
explained previously, our analysts, at a workforce of over 900 miners. The resolve the associated site-specific and
the time the 31-Mine Study was Stillwater Mining Company currently application-specific implementation
conducted, had been supplied with utilizes 288 pieces of diesel equipment challenges. To mention a few examples,
inaccurate information regarding this in its underground mine. The company this operator is not currently utilizing
mine’s diesel equipment inventory. has been installing EPA Tier 1 and Tier fuel burner DPFs, biodiesel, or water-
Based on updated equipment inventory 2 engines since 2001, and at present, emulsion fuels. Their use of high
data, we subsequently revised our approximately 16% of its engines are temperature disposable diesel
analysis and corresponding cost Tier 1, and 52% are Tier 2. One Tier 3 particulate filters (HTDPFs) has been
estimates. The revised annual estimated engine is in operation, and three hampered by the use of HTDPFs on
compliance cost for the Stillwater Mine additional Tier 3 engines were expected equipment having very high DPM
of $935,000 was reported in the in late January 2006. The company has emission engines, which causes the
preamble to the 2005 final rule (70 FR also upgraded its diesel engine filters to load up quickly and create
32943). Although, this amount is maintenance program. Cabs have been possible fire hazards. This operator has
considerably higher than the estimate installed on a few pieces of equipment not utilized heat exchangers in
from the 31-Mine Study, it is which are operated in areas of the mine conjunction with HTDPFs, which would
significantly less than the estimated where the size of the mine openings enable their use on a much broader
compliance cost for a precious metals provides sufficient clearance for a cab. range of equipment. They have
mine of this size as detailed in our REA The company has experimented with a expended far greater effort to optimize
for the 2001 final rule. variety of DPM filter systems, including passive DPF applications compared
with active DPF applications, even failure of the on-board heating elements built acknowledges that underground
though they indicate that the vast into the filters. regeneration is possible. The commenter
majority of their equipment is not A lower cost alternative to Stillwater’s states that for units that must be
approach utilizes an on-board fuel burner
suitable for application of passive DPFs. regenerated underground, additional
system to regenerate filters. The
Through an extensive MSHA Technical ArvinMeritor system was used at this mine excavations to house the regeneration
Support study of their ventilation in 2004 with excellent results. It actively equipment and to provide parking
system, we had observed numerous regenerated the filter media during normal during regeneration would be required.
problems with auxiliary ventilation equipment operations, regardless of These additional excavations are neither
systems in stopes. MSHA is continuing equipment duty cycle, with no elevated practical nor economically feasible,
to work with Stillwater to resolve these levels of potentially harmful NO2, and according to this commenter.
compliance issues. without having to travel to a regeneration These comments neither acknowledge
station to regenerate its filter. nor refute the recommended options we
Regarding the question of economic Another less costly alternative would be to
provided in the 2005 final rule preamble
feasibility, although the mine operator utilize off-board regeneration instead of on-
board regeneration. In off-board regeneration, and as summarized above.
has incurred substantial costs, as In another part of their comments to
mentioned earlier we do not believe that a dirty filter is removed and replaced with a
clean filter at the beginning of each shift. this rule, the mine operator discusses
these costs would be excessive for a their experiences with disposable filter
During shift change, the dirty filters are then
mine of this type and size based on transported by the equipment operator or a element type diesel particulate filters,
expected compliance costs detailed in designated filter attendant to a central and indicates that the costs of utilizing
the Regulatory Economic Analysis regeneration station or stations. this system are excessive because the
(REA) for the 2001 final rule. In the Such stations could be a fraction of the size useful life of the filter is so short. The
preamble to the 2005 final rule (70 FR of the regeneration stations envisioned in example provided by the mine operator
32934–32936), compliance costs for this Stillwater’s plan, because they would only
need to accommodate the filters, not the host
was a particular model Toyota truck.
mine were analyzed in detail. This The commenter operates many such
analysis indicated that when this vehicles. Since the host vehicles would not
need to travel to the regeneration stations, the Toyota trucks, which can be configured
operator’s actual expenditures were travel distance from normal work areas to the for a variety of service and support
annualized at a 7% annualization rate, regeneration stations would be less applications. According to the mine
the operator’s yearly compliance costs important, greatly lessening the need for operator’s analysis, the annual cost of
for the interim limit were less than frequent construction of new regeneration maintaining a disposable element filter
expected based on the estimates stations as the workings advance. It is very system on this type of vehicle is
contained in the REA for the 2001 final likely that such stations could be co-located $40,000, which this mine operator
rule for a precious metals mine of this in existing underground shops, unused muck
bays, unused parking areas, or other similar
characterized as ‘‘cost prohibitive.’’ In
size. response, we note that the Toyota truck
areas.
Two compliance cost issues at this Off-board regeneration might not be used in this example is equipped with
mine were discussed in detail in the practical on larger machines due to the size a model 1HZ engine, which has very
preamble to the 2005 final rule: the cost of the filters. For larger machines that are not high diesel particulate emissions
of implementing an active DPF program, suitable for passive regenerating filters, the between 0.8 and 0.9 g/bhp–hr. Table 6
and the cost of a major ventilation fuel burner approach might be preferable. But in this mine operator’s comments
system upgrade. In that preamble, we many of the machines targeted for active indicated that the DPM emissions for
filtration are quite small, having 40 to 80 this engine were 0.22 g/bhp–hr. At 0.8
presented several options for deploying horsepower engines. Active filters for these
active diesel particulate filters at this engines are correspondingly small, and could
g/hp–hr, the 128 hp engine on the
mine. These options were developed in be easily and quickly removed and replaced subject vehicle would generate 102 g/hr
response to a comment from this mine using quick-disconnect fittings. Another of DPM. A 10 inch diameter, 26 inch
operator submitted to the 2003 NPRM lower cost option would be to utilize long filter with a capacity for capturing
that the cost of implementing an active disposable high-temperature synthetic fabric and storing 8 g of DPM per inch of filter
DPF program for this mine would filters, especially on smaller, light duty length could thus store 208 g of DPM.
exceed $100 million over ten years. Our equipment such as pickups, boss buggies, Even with two such filters installed on
and skid steers. Depending on equipment the subject vehicle, the filters would
deployment options were functionally utilization, such filters might only need to be
equivalent, and the estimated costs were become fully loaded after only (208 × 2)/
replaced once or twice per week.
less than $400,000 per year. In the 102 = 4.08 hours, or about 4 hours and
preamble to the 2005 final rule (70 FR In its comments on our 2005 NPRM, the 5 minutes. The mine operator’s reports
32935–32936), we said, mine operator states that equipment of filters that, ‘‘burnt out,’’ may be
identified for use with active caused by continued operation of the
MSHA does not believe the particular plan regeneration systems has been limited to subject vehicle after the filter has been
developed by Stillwater is the optimal means equipment that is parked on the surface
of utilizing active DPM filters at this mine. fully loaded.
Various alternative approaches for utilizing
at the end of the shift. This would allow The problem with this application is
active filters exist which would be far less the DPF to be removed and placed in a the engine, not the filter system. If this
costly. regeneration station. Unfortunately, not engine were replaced with a modern
Since excavating regeneration stations all equipment can be brought to the low emission engine, filter loading
accounted for over 96% of the total cost of surface for regeneration due to logistical would occur at a fraction of the rate
implementing Stillwater’s active filter plan, issues, according to this mine operator. experienced with the current high
alternatives that do not include such The commenter, however, provided no emission engine. The cost of the engine
excavation costs would have a significant rationale explaining why active would be partially offset through lower
cost advantage over Stillwater’s plan. It is
regeneration should be limited only to fuel consumption, and the cost of

somewhat curious that Stillwater developed
its active DPF plan on the basis of this
equipment that is brought to the surface maintaining the disposable filter system
particular on-board active regeneration at the end of the shift, as active would drop by 70% to 90% because the
system, despite the extraordinarily high cost regeneration can easily be accomplished truck could be operated for many more
of excavating the regeneration stations, and underground. Furthermore, later in the hours before the filter would become
Stillwater’s prior experience with premature same section, the commenter fully loaded and need replacement. By
optimizing the total system, including replaced in the near future anyway assertion of economic infeasibility of the
the engine and the filter, associated would not be considered a DPM-related final limit of 160TC µg/m3, even in 2011,
costs could be significantly reduced. compliance cost, or at most, only is questionable. A fundamental concept
Regarding the major ventilation partially DPM-related. It is extremely upon which the Regulatory Economic
upgrade, in its comments on the 2003 improbable that an entire inventory of Analysis (REA) for the 2001 final rule
NPRM, Stillwater provided information underground equipment would need to was based is that mine operators will
and costs relating to a major $9,000,000 be replaced all at once purely for DPM choose the lowest cost method of
ventilation upgrade they stated was a compliance. The oldest equipment in a attaining compliance with the
DPM-related compliance expense. In the mine’s inventory, which would applicable DPM limits. If a mine
preamble to the 2005 final rule (70 FR normally be the worst polluters, would operator chooses other than the lowest
32934–32935), we disputed this claim. be the first that would need to be cost method for compliance, any
We determined that the expense was replaced in the course of the normal resulting determination of economic
only partially DPM-related and that this equipment turnover process. The cost of feasibility would be seriously flawed.
operator was also able to obtain a replacing such worn out equipment We acknowledge that the process of
significant electrical power cost savings would not be considered DPM attempting to install various alternative
as a result of more efficient deployment compliance-related, because it would control technologies may be imprecise
of booster fans. Over 60% of the overall have occurred anyway, with or without at best, and that testing multiple designs
$9,000,000 project cost, when a DPM rule. The newest equipment, can be inherently cost-inefficient
annualized, was offset by this electrical typically mid to late-1990’s model year because some designs will inevitably be
power cost savings. In its comments on or newer, would most likely not need to found to be unsuitable for a particular
the current rulemaking, additional be replaced right away, as this purpose. However, we continue to
general information on the mine’s equipment would have EPA Tier 1 or emphasize that mine operators can
ventilation system is provided, as are Tier 2 engines, and as a consequence, obtain compliance assistance from our
plans for future upgrades, but our would be low, or at worst moderate District Managers, or utilize our DPM
analysis was not refuted. Another polluters. Thus, new equipment Single Source Page and access the
commenter observed that our analysis of purchased strictly for DPM compliance, internet-hosted DPF Selection Guide to
the $9,000,000 ventilation upgrade was, if any, would typically be limited to help streamline this process. Economic
‘‘suspect,’’ but provided no factual only a portion of a mine’s overall feasibility is based on the assumption
information to corroborate their equipment inventory. that optimal, lowest-cost controls are
position. Second, it is very unlikely that the implemented to attain compliance
Two commenters noted that our 2001 wholesale replacement of equipment is taking into account recognized
estimate of the cost of compliance for the most cost effective DPM control implementation difficulties. In the cost
the industry as a whole of $25.1 million strategy for this, or any mine. For estimates for this final rule, we have
per year was too low. One commenter, example, rather than replacing all included cost related to operator
a mining industry organization, equipment, an operator could replace evaluation of different technologies in
provided no rationale or explanation to just one or two pieces of equipment (if an effort to determine the most effective
support this comment. The other any equipment at all needed to be method for compliance.
commenter, a stone mining operator, replaced), utilize diesel particulate
Third, the equipment listed by the
presented estimated compliance costs filters, upgrade ventilation, switch to a
high biodiesel content fuel blend, commenter would be expected to have
for this mine and extrapolated these a long useful life, possibly up to 20
costs to the rest of the industry. This implement various administrative
controls, or use some combination of years. Thus, the total first year
operator stated that it cannot accept our acquisition cost of this equipment is an
projections that this final rule will not these strategies. Indeed, this same
commenter earlier in their comments incorrect representation of the
have an annual effect of $100 million or corresponding yearly cost to the
more on the economy. A figure of $100 stated that buying new equipment is
costly. There may be less expensive operator. Even in the unlikely event that
million divided by 200 M/NM mines a mine operator would need to purchase
would result in $500,000 per mine. This alternatives to improve DPM levels,
such as ventilation or alternative fuels. all new major underground equipment
commenter believes that its cost in a single year, we would first need to
This commenter indicates that they,
estimates for new or newer equipment determine that these controls are
‘‘have not tried diesel particulate filters
in its small mine show capital economically feasible for the operator.
due to cost and negative performance
contribution of over three times our Moreover, when the $1,675,000 cost of
history reported by producers and
figure. this equipment is amortized over a 10-
This mine operator then listed the manufacturers.’’ However, as discussed
extensively in the previous section of year period (to account for depreciation)
following estimated equipment costs: at a 7% discount rate, the annualized
this preamble and throughout the
• Drill ................................... $350,000 rulemaking record, diesel particulate cost to the operator is $238,482. This
• Powder truck .................... $50,000 filters are a technologically and annualized cost is 48% of the
• Scaler ................................ $350,000 economically feasible DPM control once commenter’s threshold of $500,000 per
• Loader ............................... $250,000 mine operators work through their year that, according to the commenter’s
• Truck 1 .............................. $225,000 calculations, would be required, on
• Truck 2 .............................. $225,000
implementation issues. The commenter
indicated that they are considering the average, to generate industry-wide
• Truck 3 .............................. $225,000
• Total .................................. $1,675,000 use of a B99 biodiesel fuel blend. As annual compliance costs greater than
noted elsewhere in this preamble, use of $100,000,000.
Upon examination, we have high biodiesel fuel blends has been A mining industry organization stated
determined that this commenter’s quite successful at other M/NM mines that even though the Mine Act is a
analysis does not account for several in significantly reducing DPM ‘‘technology forcing’’ statute, the
important factors. First, replacement of exposures. projections that we made in this rule
equipment that is near the end of its By overlooking lower cost DPM ‘‘go far beyond this into the realm of
useful life and would have been control alternatives, this mine operator’s pure theory.’’ They go on to state that,
Underground stone mines cannot make would cost an additional $8,600 and a type vehicles. Assuming the filters
purchasing decisions based on hypotheses as backpressure monitor estimated at $1,100, for would last two years and the
to what technologies may be available during a total cost of $37,700 excluding freight and regeneration stations would last five
the coming decade when there is scant installation.
evidence to support MSHA’s assertions. What many NSSGA members are
years, the per vehicle yearly cost, when
experiencing is that they do not have any annualized at a discount rate of 7%
We disagree with the commenter’s would be $8,963. The cost of an active
way of establishing the true costs of diesel
position regarding our conclusions on particulate filters because, setting aside the on-board regeneration DPF system was
economic feasibility. As we discussed direct costs and questionable results related quoted by another commenter at
extensively in this preamble, to filter usage, the filters affect equipment in $28,000 plus an additional $1,100 for a
technologically and economically ways that are adverse but cannot be readily backpressure monitor and $8,600 for the
feasible DPM controls are available, quantified. regeneration station, for a total of
however, mine operators will need to We agree that the cost for passive $37,700. The per vehicle yearly cost for
resolve these implementation issues to regeneration diesel particulate filters for this system, when annualized at a
meet the final limit of 160TC µg/m3. In typical production equipment (loaders discount rate of 7% would be $18,192.
the 2005 NPRM, we stated that mine or trucks with 300 hp to 500 hp engines) We believe the difference in costs
operators may need more time to would range from about $7,000 to about between these systems relates more to
comply with the final rule due to $8,500. A number of industry the engine horsepower they are
implementation issues, including cost commenters agree that passive intended to filter rather than the type of
implications. We nonetheless believe regenerating filter systems are feasible regeneration employed. The unit cost
that in time, most of these for equipment that operates at a for this second active DPF system is
implementation issues can be overcome, sufficiently demanding duty cycle. about the same as we estimated in the
especially by May 2008. The five Typical comments were: 31-Mine Study for a similar system. For
principal engineering controls discussed that study, we estimated an active
Practical experiences with equipment that
throughout this preamble—DPFs, have the capability to operate with passive system for a 400 hp to 500 hp engine
equipment for ventilation upgrades, regeneration systems indicate this type of would cost $18,000 and the associated
environmental cabs, alternative fuels, control can reduce DPM exhaust emissions. regeneration station would cost another
and low emission engines—are all At the present time, however, we are $20,000 for a total of $38,000.
commercially available off-the-shelf increasingly confident that passive Rather than the cost of the systems
from many suppliers. The final rule, regeneration filter technology can be effective themselves, operators’ comments
however, provides mine operators with in the mine’s larger horsepower production
primarily addressed the associated
additional time to work through their units.
Turquoise Ridge believes that properly implementation issues, such as the
individual implementation issues. sized and fitted filters can reduce DPM required frequency of regeneration,
These individual issues, when viewed emissions, and the Turquoise Ridge Mine is travel time to a regeneration station,
as a whole, result in our need to phase- now at the sustained level of production to providing locations for regeneration
in the 160TC µg/m3 final limit. begin testing. stations, equipping regeneration stations
Several mine operators and an Both DPM filter vendors and mine with the necessary facilities and
industry organization commented on operators are now gaining experience in the utilities, equipment downtime while
the costs associated with DPFs. application of DPM filters underground.
regenerating, etc. and the perceived
Comments included: Some progress is being made. For example,
the application of passive regeneration filter increased labor and infrastructure costs
Average operating life of the Englehard technology is becoming effective on larger associated with applying active filter
DPF utilized at Stillwater is 3000–4000 hours horsepower production units. However, technology. These concerns have
at a cost ranging from $7,000–$8,500 per NMA agrees with MSHA’s observation in the limited more widespread utilization of
unit. [Note: This mine operator reported the preamble of the NPR that ‘[r]elying on active systems. Comments concerning
average unit cost of 103 passive systems [filters] to be installed on older, higher DPM
installed since 2004 plus those planned for
these logistical issues included:
emitting engines may also introduce
installation in 2006 is $7,170.] additional implementation issues since Active filters require that equipment be
For equipment not compatible with passive [filter] manufacturers normally do not idled for a considerable period of time either
regeneration systems, active regeneration recommend adding [filters] to older engines.’ with on-board regeneration, or with an off
systems have been researched and tested at Furthermore, the application of DPM filters board filter change-out system * * * In
Stillwater. The cost for these systems have to equipment with medium- to low-duty addition, active systems require considerable
ranged from $4,000–$8,000 per unit. [Note: cycle engines remains problematic. space * * * The record to date has identified
This mine operator reported the average total other feasibility problems with DPFs that
acquisition, installation, and maintenance Industry objections to active filter include physical size of filter systems, the
cost for 10 active off-board filter systems and systems center on operational aspects short life span of filter elements, the required
4 regeneration stations sufficient for filtering that result in higher overall costs for downtime for regeneration of active
the DPM emissions from 5 vehicles was applying this type of control. These regeneration systems, the need for
$95,000, resulting in a per vehicle cost of systems are very efficient in capturing regeneration stations with electric power and
$19,000.] compressed air supply near producing zones
The passive regeneration filter systems we and retaining DPM, and the hardware for active regeneration systems * * *
have purchased range from $6,600 to $8,700 costs of such systems, though higher Practical experience with active
each. These filters also have backpressure than a comparable passive system, are regeneration systems has not indicated these
monitors costing roughly $700 each. not excessive for many mine operators. control options are economically feasible for
Installation on equipment usually will cost An example of active off-board the Stillwater diesel fleet * * * Initial
about $1,000. regeneration DPF system costs was operating time before the unit is required to
Costs for our passive regeneration filters provided by the commenter who be removed and placed on a regeneration
systems will be borne over the filter life, station is, at best, 10–15 hours. However,
indicated that ten filter systems and four

which in our experience has ranged between experience has shown this time can be as
2,500 and 9,000 hours with most falling
off-board regeneration stations cost little as 4 hours before off-board regeneration
around 6,000 hours. $95,000. This cost included acquisition, is required. Due to the low utilization of the
The last quote we received for an on-board installation, and maintenance, and was active DPF before the system needed to have
active regeneration filter was $28,000, sufficient for filtering the DPM active regeneration, two active DPFs were
excluding the regeneration station which emissions from five utility and support purchased to ensure the equipment would be
operational for the next shift. This option has practical perspective, there is still issues with systems establishes a realistic model for
proven to be cost prohibitive; it is unrealistic the types of filters you might use and if you overcoming implementation issues with
to logistically store spare active DPFs and are making the engines—if the engines are active DPF systems. The early attempts
regeneration stations for even the small inefficient to start with and you have to use at applying passive DPF systems in M/
fraction of equipment that has the capability a—you want to use a diesel particulate filter
to operate with active DPFs * * * For units as the correction method, it could very well
NM mines were inefficient and costly.
that must be regenerated underground, be that because of the inefficiency of the Applications and duty cycles were not
additional excavations to house the engine, it makes the filters a lot more difficult fully characterized, inappropriate filters
regeneration equipment and to provide to deal with. Because they’re going to clog were selected, installation methods
parking during regeneration would be up, they’re going to create problems for you were crude, and system maintenance
required. These additional excavations are and it’s just going to increase the difficulties requirements were not well understood,
neither practical nor economically feasible. of implementing a program. So we looked at leading to short filter life and a variety
Additionally, moving equipment to the diesel particulate filters as the last resort. It of related problems. The final rule’s
regeneration stations is time consuming, certainly may be one that we want to take,
unproductive, and cost prohibitive.
phased-in final DPM limits provide the
but it’s not one that we would choose to go additional time required by the industry
One active regenerative DPF system, at early * * * One of the things also about
specifically DCL Mine-X Black Out Soot diesel particulate filters and off board
to successfully address these issues.
filter, was tested on a Tamrock 1400, 8 yard3 regeneration is you’re talking about With respect to the above specific
scoop over an 8 month period. Because of increasing the labor cost. comments, while it is true that active
filter limitations, the scoop was only There’s no way around it. It’s going to take filter regeneration can require several
operational for 7 to 8 hours per shift before more people. hours, the associated piece of diesel
the backpressure increases caused the need equipment need not be idled for that
for filter regeneration. This rendered the We believe that active regenerating
entire period. As one mine operator
equipment unusable for the remainder of our filter technology is available to enable
indicated, two filter elements can be
normal 11 hour production shift. The active compliance with the final limit.
regeneration system was determined to be acquired for each piece of diesel
However, these commenters have
impractical because it was not effective for an equipment so that one element can be
highlighted some of the implementation
entire shift and could not be regenerated in use while the other element is being
issues we believe will be encountered
between shifts (regeneration typically took regenerated. Using quick disconnect
between 2 and 5 hours). by a great many mine operators that may
couplings in the equipment’s exhaust
The feasibility of equipping medium-to need to utilize this technology to attain
system, swapping out the active DPF
low-duty cycle engines with passive and compliance with the final rule. The elements could be accomplished
active regeneration DPF filter systems additional time required to resolve these quickly with very little physical effort.
continue to be evaluated by Greens Creek issues is provided by the two-year phase Equipment downtime in the context of
Mine personnel. However, the need for fixed in of the final limits incorporated in this
locations for installation of equipment used this active filter regeneration scenario
final rule. would be measured in minutes rather
for active filter regeneration poses serious We continue to advise that the
logistical problems due to the spread out than hours.
nature of the mine’s layout.
‘‘toolbox approach’’ be used for Nonetheless, the subject mine
compliance with this rule, and that operator declared this strategy to be
Other mine operators have not even DPM controls be carefully selected on
attempted to utilize diesel particulate ‘‘cost prohibitive,’’ due to the need to
the basis of attaining compliance at the purchase two filters for each piece of
filter systems because of perceived lowest cost. However, where
logistical problems and associated costs. equipment and the required space to
circumstances indicate that active store the extra filter elements. We
Typical comments from these operators regenerating DPM filtration would be disagree with this conclusion. First, the
who have had no first hand experience the optimum control method, we annualized yearly cost of providing two
with diesel particulate filters included: believe that the application of such a filters for each piece of equipment is not
* * * the current methods to achieve system would be economically feasible significantly greater than the annualized
compliance are not economically feasible or over time. We do intend to continue to yearly cost of providing a single filter
present other hazards to employees, assess feasibility of effective controls on for each piece of equipment because
specifically some of the filtration technology a case-by-case basis.
that we’ve investigated. I would state that we each filter, being used only on every
We do not dispute that implementing other shift, will last twice as long as it
have not tried those technologies as of yet.
As I said, the current filtering technology is
an active regenerating filter program at would have if it were used on every
a capital cost and a long-term operating cost an underground mine will create shift. Second, there would be no need
that’s difficult to absorb in the operations. logistical and implementation for storing extra filters since filters
We’ve talked about what filters mean and challenges, and that mine operators will would simply be swapped back and
what filters do and how they work and what need to incur costs to solve these forth between the regeneration station
they are. We’ve closely watched how that problems. As mines begin to solve these and the piece of diesel equipment.
technology has moved forward. As of this implementation issues, however, most We agree that there will be costs
point, even the employees don’t see a benefit should be able to reduce miners’
in doing that. Mainly because the
associated with providing facilities and
maintenance that they’re going to be required
exposure to DPM in the process. We utilities such as electrical power and
to do to change filters, to move filters around, acknowledge that a certain amount of compressed air for the regeneration
is going to cause them to pull out the ladder trial and error experimentation may be stations. However, we believe these
and climb the ladder and work around the unavoidable before an optimum costs will be small or negligible in the
hot exhaust and move the heavy thing back selection is made. However, we do not context of implementing such a system,
down, you know, the ladder, put it where it believe this evaluation and selection or at worst, should not be economically
needs to go. And they’re exposed physically process is economically infeasible for infeasible. As noted above, we believe
to something—these guys are smart. They
mine operators to successfully complete an optimally deployed active

understand these are real physical hazards
I’m exposed to try and get filters on and off.
over time. regeneration system would utilize
We have not gone to diesel particulate We believe that the applications existing locations with utilities already
filters. In our hierarchy of controls, quite engineering process followed by mine in place as regeneration stations,
honestly diesel particulate filters would be operators for overcoming thereby simplifying implementation and
our last choice. First of all, just from a implementation issues with passive DPF minimizing associated costs. Although
several commenters have identified this filters loading up to quickly is to replace limited basis in M/NM mining. Their
requirement as a compliance cost, the the engines with a model that produces successful use on a more widespread
actual magnitude of these costs has not significantly lower DPM emissions. basis in the mining industry is possible,
been presented. Again, there are some costs associated but not without time and similar
The size of active DPF filter elements with these approaches, but we do not dedicated efforts by mine operators to
has been discussed previously. believe they would reach the level of solve the mine-specific and application-
Typically, active systems would be economic infeasibility. specific logistical and implementation
applied to smaller support and utility Regarding the feasibility of providing issues discussed above. This point was
equipment that does not operate at a space for regeneration stations and emphasized by NIOSH in its opinion
severe enough duty cycle to permit parking areas, we refer to our analysis submitted on June 25, 2003 and
passive regeneration. Smaller of the active regeneration system repeated in its comments on the current
equipment requires smaller DPF filter proposed by the Stillwater Mining rule that:
elements that can be handled without Company and discussed in the preamble With regard to the availability of filters and
specialized materials handling to the 2005 final rule (70 FR 32934– the interim standard, the experience to date
equipment or lifting aids. Unlike 32936). The rationale supporting our has shown that while diesel particulate filter
passive systems that usually have to be suggested alternative active regeneration (DPF) systems for retrofitting most existing
installed as close as possible to the system for this mine remains our diesel-powered equipment in underground
engine manifold so that the exhaust is current position, and given the extra metal and nonmetal mines are commercially
hot when it reaches the filter, there is time afforded by the phased-in final available, the successful application of these
systems is predicated on solving technical
greater flexibility in installing active limit included in the final rule, we
and operational issues associated with the
DPF systems on a piece of equipment, believe a similar optimization process circumstances unique to each mine.
usually enabling convenient access for can be used at other mines to solve a Operators will need to make informed
swapping out filters. In rare cases where number of implementation challenges. decisions regarding filter selection,
filter elements may be too large to be We do not dispute that mine operators retrofitting, engine and equipment
conveniently handled by the equipment have had less success with active deployment, operation, and maintenance,
operator, accommodation could be regenerating filter systems compared to and specifically work through issues such as
made, such as providing lifting aids at passive systems. As noted above, we in-use efficiencies, secondary emissions,
believe this result is largely due to engine backpressure, DPF regeneration, DPF
the regeneration station or the exhaust
reliability and durability.
could be divided into dual separately greater experimentation, trial and error,
filtered branches with a smaller filter on and applications engineering by mine When these implementation issues
each branch. Implementing either of operators on passive systems. During are resolved, we believe an inevitable
these options by May 2008 would incur the remaining period before consequence will be significantly
some cost, but not so great as to enforcement of the final limit of 160TC reduced costs due to decreased waste,
approach economically infeasible. µg/m3 begins, mine operators will have fewer damaged or failed filters,
In instances where filters load up sufficient time to meet these challenges increased efficiency and effectiveness of
with soot and require regeneration and successfully apply active filter system installations, operations,
before the end of a shift, a possible regeneration systems. and maintenance, acceptance by miners,
solution is to utilize a larger filter that Several commenters have said that minimal adverse effects on equipment
has more soot storage capacity. The they favor passive regeneration over operations, and smoother integration of
mine operator that was able to run an active regeneration. For example, one filter regeneration into the mining
actively filtered loader for only 7 to 8 mine operator said, ‘‘Research and process.
hours of an 11 hour shift could utilize testing of DPF regenerations systems has Two commenters provided
a 40% larger filter to extend the loader’s concluded that passive regeneration information on the costs of utilizing low
operating time to the full shift duration systems are preferred over active DPM emission engines. One mine
of 11 hours. Adding more filter capacity regenerations systems.’’ As a result, operator said, ‘‘Since 2001, Stillwater
could also be accomplished by dividing most mine operators who have has performed a proactive engine
the exhaust into dual separately filtered evaluated DPFs have concentrated their campaign to replace the higher DPM
branches, as was done at the mine efforts on passive systems. We realize, emitting engines with the newer EPA
referenced above that used a dual however, that mine operators who have Tier I and Tier II rated engines.’’ This
element disposable filter system on its successfully implemented passive commenter also provided a table of the
Toyota support and utility vehicles. regeneration filter systems have had to costs incurred in 2004 and 2005 for
Another option for extending the work long and hard to overcome engine replacements and upgrades
operating time of an active filter is to difficult implementation issues. One showing that 48 new engines were
replace the diesel engine with one that mine operator commented, ‘‘The installed at a total cost of $576,000
produces less DPM. For example, process of achieving filter reliability has (average cost of $12,000 each) and 98
replacing a 100 horsepower Tier 1 been arduous * * *’’ The product of engine upgrades (electronic engine
compliant engine with the equivalent these sustained efforts has been longer governors) were completed at a total
Tier 2 engine would reduce DPM filter life, acceptance and support by cost of $198,000 (average cost of $2,020
emissions by over 60%. While a given operating and maintenance personnel, each). Several other commenters
active filter on a Tier 1 engine may and the streamlined integration of indicated they had replaced engines or
require regeneration before the end of passive filters into these mines’ overall had purchased new equipment with low
the shift, the same filter on a Tier 2 operating procedures, all of which we DPM emission engines, but the only
engine might operate for the entire shift believe could contribute to controlling other commenter to provide cost data on
or longer. A similar situation exists at costs. engines said they had completed eight
the Stillwater Mine in Nye, MT with We are confident that such efforts, ‘‘engine repowers’’ at a total cost of
respect to the disposable filter element applied to active systems, can achieve $120,000, for an average cost of $15,000.
systems on their Toyota trucks. As similar results. These systems are As we have suggested throughout the
discussed earlier in this section, a widely used in other industries, and DPM rulemakings, utilization of low
possible solution to the problem of these they have been used successfully on a DPM-emitting engines is an excellent
way of reducing DPM concentrations A mining company that operates two currently operating 154 pieces of diesel
underground. Depending on the specific gold mines in Nevada commented that, equipment for mining and support
emissions from the original and Our estimate of the total cost of measures activities. In 2002, this operator
replacement engines, DPM reductions of taken to achieve compliance with the current reported 236 pieces of diesel equipment
up to 90% or more are possible. interim standard [interim DPM limit] is in its diesel equipment inventory. Using
However, we acknowledge that approximately $1.68 million annually ($8.4 the lower number and applying a ratio
replacing engines can be costly, million since 2001). Our experience indicates multiplier of 6.4 (154/24) to the
especially when the replacement engine that MSHA’s 2001 cost estimates $171,778 compliance cost estimate from
requires significant adaptations to the dramatically understated the costs of the 2001 REA results in an estimated
compliance.
host vehicle to accommodate physical compliance cost for the commenter’s
size constraints, new plumbing and This commenter then itemized the two mines of $1,099,379. Thus, this
wiring harnesses, etc. Comments on the compliance costs incurred at their two commenter’s actual annualized
1998 Preliminary Regulatory Economic mines since 2001 as follows: compliance cost of $980,000 is about
Analysis (PREA) suggested such ‘‘non- • Engine repowers (8 @ 89% of the expected annualized
like-for-like’’ retrofits could cost up to $15,000) ............................ $120,000 compliance cost for gold mines of this
$60,000. Although costs may reach • Cab installed on KMS 608 $43,000 size, as estimated for the 2001 final rule.
$60,000 in certain extreme or worst case • Cabs on 2 new loaders @ Under the new final rule, the mine
$43,000 each ..................... $86,000
situations, we believe in reality, that the operator’s compliance costs would be
• Cabs on 3 new loaders @
costs quoted above of $12,000 to $48,000 each ..................... $144,000 expected to decrease due to the phase-
$15,000 are more typical. When • 1225 South Meikle Spray in of the final DPM limits.
amortized over the 10 year life of an Chamber ............................ $139,000 This same mine operator urged us to
engine, the annualized yearly cost of a • Rodeo Betze Portal Drift .. $1,200,000 update our compliance cost estimates
$15,000 engine at a discount rate of 7% • Rodeo Betze Port Drift based on the current price of diesel fuel.
is $2,136. Vent Intake ....................... $1,300,000 They indicated that,
We also received comments to the • Increase size of auxiliary
fans .................................... $750,000 In 2001, when the proposed limit was
1998 PREA indicating that mining adopted, diesel costs were approximately
equipment at underground M/NM • Higher power cost,
$560,000/yr × 3 yrs .......... $1,680,000 $1.40 per gallon. Currently, diesel prices are
mines can have a useful life of up to 20 • Total costs since 2001 ...... $5,462,000 in the range of $2.39 per gallon, an increase
years. However, engines typically last of over 70%. Available control technologies,
only half that long or less, meaning that The sum of the items listed by the particularly filters, reduce horsepower and
engine replacement is a routine commenter, $5,462,000, is about 65% of increase fuel consumption and costs to
the $8.4 million amount the commenter accomplish the same work. The agency’s cost
procedure that is necessary to maintain
claims was spent to attain DPM estimates should acknowledge current diesel
mine production levels. We do not view fuel prices.
replacing a worn out or blown engine compliance. Without a thorough study
with a new low DPM engine as a DPM of these elements, and based on the Since 2001, a major component of
related compliance cost. It is not clear limited information provided by this DPM compliance strategies that are
from the commenters’ data whether the mine operator in their comments, we are being widely adopted throughout the
subject engines were replaced due to the not able to verify that all of these costs industry, including by this operator, is
normal engine turnover process or are DPM-related. For example, we the use of modern low emission
whether serviceable engines were determined at another precious metals engines, which in addition to
replaced solely for DPM compliance mine that claimed DPM-related significantly lowering DPM emissions,
purposes. ventilation upgrades were actually also reduces fuel consumption by 10%
We also note that the new low DPM justified on the basis of other needs, to 15% compared to older, high DPM
emitting engines provide other such as planned production increases emission engines. We also note that the
significant benefits to mine operators. and the desire to improve overall fuel penalty of using a properly sized
The electronic maintenance diagnostics ventilation system efficiency. Of the diesel particulate filter is very small.
reduce maintenance-related downtime, approximately $5.46 million in claimed Even the fuel burner system, which
and the fuel savings between a non-EPA DPM compliance costs itemized above, combusts diesel fuel in the exhaust to
Tier rated engine and an EPA Tier 2 over $5.07 million, or 93% are raise the exhaust gas temperature
engine can be 10%–15% or more. For a ventilation related. Likewise, installing sufficient for filter regeneration, only
400 horsepower engine that normally cabs on mobile equipment or acquiring increases fuel consumption by about
consumes 8 gallons of fuel per hour new equipment with OEM cabs can also 1%.
(approximately 50% duty cycle), a 10% solve dust and noise overexposure We received comments on the costs of
reduction in fuel consumption over problems and improve operator comfort. environmental cabs from gold mines in
3,000 annual operating hours results in However, even if all the listed costs Nevada. One company indicated they
a 2,400 gallon fuel savings per year. At were entirely justified solely on the had retrofitted five fully enclosed cabs
a diesel fuel cost of $2.00 per gallon, the basis of complying with the DPM rule, onto haulage trucks and loaders, and
new $15,000 Tier 2 engine would when the individual cost elements are that as a result, the operators of this
almost pay for itself in 3 years due to amortized at a discount rate of 7% over equipment were in compliance with the
lower fuel consumption. At a diesel fuel their expected life, annualized yearly final limit. These cabs were installed
cost of $2.30 per gallon, if an old engine costs to the operator are about $980,000. during major re-builds on the subject
was replaced with one that consumed The estimated yearly compliance cost equipment at a cost of $30,000 to
15% less fuel and was operated for for a medium sized gold mine was $50,000 each. Another operator
6,000 hours per year, the payback determined in the Regulatory Economic indicated they had installed
period for the $15,000 replacement Analysis (REA) for the 2001 final rule to environmental cabs on six loaders at a
would be less than one year. In fact, the be $171,778 (not adjusted for inflation) cost of $43,000 to $48,000 each. These
current price of diesel fuel (in May based on an inventory size of 24 pieces unit costs are higher than we originally
2006) has risen to approximately $2.90 of diesel equipment. In their comments, estimated for environmental cabs in the
per gallon. this mine operator indicated they are REA for the 2001 final rule. However,
our original cost estimate applied to the the late summer and fall of 2005, the individual plants. At present, only 13 of
industry in general and to all price difference between standard diesel 52 plants have an annual capacity of 10
equipment. We expected the cost of and biodiesel was considerably less million gallons or more. In contrast, of
retrofitting cabs onto purpose-built than $1.00 per gallon. But the $1.00 per the plants currently under construction
underground mining equipment to be gallon price difference quoted by the or in the pre-construction phase, 27
substantially higher than the cost of commenters is more typical. However, have an annual capacity of 10 million
cabs installed at the factory on the net cost of biodiesel to mine gallons or more, including several
construction-type equipment by the operators is significantly affected by the ranging from 30 million to 80 million
OEM. The costs quoted by the federal excise tax credit for biodiesel gallons of annual capacity. To the extent
commenters reflect this expected fuels, which applies to fuel blenders that larger plants can reduce costs
difference. It is also important to note (typically the fuel distributor), and is through economies of large scale
that the costs of these retrofitted cabs valued at $0.01 per gallon per production, the growth of larger plants
are only a small part of overall percentage of biodiesel in a fuel blend will also attenuate upward price
compliance costs for these mines, and for biodiesel made from agricultural pressure. Thus, even without the tax
their overall compliance costs are less feedstock (such as soy biodiesel). credit, we expect the price difference
than expected based on the REA for the Because the cost of biodiesel is typically between standard diesel and biodiesel
2001 final rule. approximately $1.00 per gallon more to shrink over time. Our determination
We received several comments on the than standard diesel, the credit of $0.01 of whether biodiesel fuel is a feasible
cost of biodiesel fuel. These comments per gallon per percent biodiesel has DPM control at a particular mine,
generally fell into three categories: the nominally eliminated the cost difference however, does not depend on extension
cost of the fuel itself, the biodiesel tax between standard diesel and biodiesel. of the federal excise tax incentive.
credit, and the cost of infrastructure for For example, if standard diesel is $2.00 Regarding the issue of infrastructure
fuel storage and handling. Regarding the per gallon, and the cost of biodiesel upgrades to accommodate biodiesel, we
cost of the fuel itself, typical comments before the excise tax credit is applied is agree that some upgrades may be
were: $3.00 per gallon, a 98% biodiesel fuel necessary at some mines. For example,
Fuel prices will have a substantial impact blend (98% biodiesel mixed with 2% due to the cold weather properties of the
as Bio-Fuel cost is over $1.00 per gallon standard diesel) with the tax credit
higher than diesel. fuel, storage tanks at mines that
applied would cost: experience sub-freezing temperatures
[Biodiesel] * * * is not widely distributed
or accessible at a reasonable cost to many [$2.00/gal × 2%] + [$3.00/gal × would need to be heated, moved to a
mining operations. 98%]¥[98% × $0.01] = $2.00/gal. Thus, heated indoor space, or moved
Our current diesel fuel supplier has a gallon of the 98% blend of biodiesel, underground. Some mines that are using
indicated that the cost for bio-diesel fuel after the tax credit is applied, would high biodiesel content fuel blends have,
* * * would be priced at a premium of 20 cost the same as a gallon of standard or are planning such changes. There
to 25 cents per gallon for a B20 blend. diesel. may also be costs incurred by the fuel
Regarding the tax credit, typical This tax credit, which has been in distributor. Some distributors are
comments included: effect since 2004, was scheduled to already capable of off-loading, handling,
We are now considering a B99, with the expire in 2006, but has been extended and storing biodiesel in cold weather.
hope that the current $1.00 per gallon tax through 2008. It is impossible to predict However, those that do not have this
credit remains to help control costs. whether the credit will be extended capability would need to acquire the
The economic feasibility of alternative beyond 2008, as its further extension is necessary infrastructure upgrades, and
fuels depends upon uncertain government subject to Congressional action. It is also the associated costs would reasonably
price supports that are due to expire in the impossible to predict the future price be passed along to their biodiesel
near future.
difference between standard diesel and customers. However, such costs,
Regarding the cost of infrastructure biodiesel, as the prices of both whether incurred by the mine operator
upgrades, typical comments included: commodities are determined by market or the fuel distributor and passed on to
Cost analysis concerning on-site storage forces. The only factor affecting the the mine operator, would largely be one-
was conducted with a regional supplier and price of either fuel that can be predicted time expenses that would be amortized
proved cost prohibitive. The cost of the with any degree of certainty is the over a period of many years. For
infrastructure to support biodiesel at the supply of biodiesel. Biodiesel example, although we dispute the
mine would include a 10,000 gallon tank for production in the United States has commenter’s assertion that
diesel, 15,000 gallon tank for biodiesel, and grown from 0.5 million gallons in 1999 infrastructure upgrades to support
a 10,000 gallon tank for the blended product.
to an estimated 75 million gallons in biodiesel at their mine would cost
The cost for this system would be in excess
of $250,000. 2005. Production growth between 2004 $250,000, even this amount, when
[The higher cost per gallon for biodiesel] and 2005 alone was 300%, from 25 amortized over 20 years, results in an
does not include costs for specialized million gallons to 75 million gallons. annualized yearly cost of $23,598. We
transport during the winter season to keep Annual production capacity that is assume a tank already exists at the mine
the biodiesel fuel from gelling. Further, we currently under construction is 329 for standard diesel, so it is not clear why
would have to install separate fuel tankage to million gallons. Biodiesel production another tank is necessary. We also
segregate biodiesel fuels from other fuels plants in the pre-construction phase question why a tank for blended fuel is
* * * will have an annual capacity of an needed, as greater DPM reductions are
We agree with the commenters who additional 529 million gallons. To the obtained when biodiesel content is
indicated that the cost of biodiesel is extent that increased supply tends to maximized. While it is true that
typically about $1.00 per gallon more attenuate upward pressure on price, the biodiesel needs to be blended with
than standard diesel fuel, though this expected effect of this large increase in standard diesel to qualify for the federal
has not always been the case. Prices for biodiesel supply would be to moderate excise tax credit, the IRS has
standard diesel and biodiesel are price increases, if any, or possibly serve determined that a 99.9% blend
determined by the market, and when the to lower the price. Another indicator of (nominally 10 gallons of standard diesel
price of standard diesel fuel spiked in future price trends is the capacity of mixed with 10,000 gallons of biodiesel)
satisfies this requirement. Such a administrative controls might also be compliance at the subject mine, the
blending process would not require a possible. annualized yearly cost of $142,000 for
separate blending tank. Thus, the As noted previously in the this major ventilation upgrade, though
commenter’s $250,000 cost estimate for technological feasibility section, it is a significant, is less than 30% of the
infrastructure to support biodiesel widely accepted principle of industrial expected total yearly compliance cost
appears high. However as noted above, hygiene that PPE is inherently inferior for a stone mine of this size.
even if this cost is supportable, the total compared to engineering and Not all commenters disagreed with
cost, when amortized over the life of the administrative controls for reducing the economic feasibility of the rule. One
asset, results in an annualized yearly exposures, so the requirement to commenter said,
cost of $23,598. It is also significant to implement all feasible engineering and
administrative controls before PPE In January 2001, MSHA estimated that
note that this commenter’s fuel compliance with the rule would cost
consumption is about 80,000 gallons per could be utilized as a means of approximately $25.1 million on an annual
month. The corresponding costs for compliance was promulgated in the basis (66 FR 5889). MSHA estimated that
infrastructure upgrades at an average or 2005 final rule and is applicable to this 73% of those costs would be expended to
typical mine would be much lower. final rule. We also note that, in comply with the interim level and 27%, or
Depending on circumstances at a accordance with our DPM sampling just $6.6 million annually, to comply with
given mine, there may also be a need to procedures, a miner’s exposure to DPM the final limit. MSHA found these costs to be
provide vehicle fuel tank heaters, fuel is determined through full-shift economically feasible. They represent less
line heaters, and fuel filter heaters. personal sampling. This sampling than one percent of industry revenues.
These items are commercially available procedure integrates or averages a Nothing in the record suggests that these
compliance costs have increased. If anything,
at reasonable costs. For example, the miner’s exposure throughout the shift so
advances in technology and the availability
MSRP for an Artic Fox model AF–F–203 that an occasional exposure to a high of substitute fuels mean the likely costs of
14″ to 29″ in-tank fuel warmer is concentration to DPM will not cause the compliance have decreased since the 2001
$169.27, the MSRP for an Artic Fox full shift sample to exceed the DPM estimates were completed.
model AF–D3085–2180 24V, 600W, 12 limit if the majority of the miner’s
ft heated fuel line is $614.86, and the exposure is sufficiently below the limit. Another commenter said,
MSRP for a Diesel Therm fuel filter Given adherence to this sampling A standard is not infeasible simply because
heater is $180.81. procedure, it is highly unlikely that any it is financially burdensome, or even because
The operator of two large stone mines of the, ‘‘15 employees exposed to the it threatens the survival of some companies
commented that there are occupations at polluted air when they venture outside within an industry. MSHA estimated that the
their mines such as roof bolters that of the cab,’’ would be overexposed to annual cost of the final rule was $25.1
require personnel to work outside of a DPM on a full-shift basis if their million or $128,000 annually for an average
cab near the mine roof where DPM underground metal and nonmetal mine. (70
excursions outside their cabs were brief,
FR 53282) The NPRM does not contain any
concentrations would be expected to be and their cabs were properly maintained data suggesting that these minimal costs
the highest. Due to the high cost of and provided with filtered breathing air. would be significantly greater than originally
major ventilation upgrades, this The operator of the two large stone estimated, let alone that costs would be so
commenter asked that consideration be mines included cost estimates for a new high to threaten the economic viability of the
given to allowing such miners to utilize ventilation shaft and fan for one of its industry.
PPE for compliance with the DPM limit. mines. They indicated the cost of a 16-
Another stone mine operator made a foot diameter shaft at $1,000 per vertical The DPM rulemaking record contains
similar comment, asking: foot and 800 to 1,200 feet deep would considerable comments supporting the
be $800,000 to $1.2 million, and that need for more time to effectuate controls
Is it economically sensible to expend that are economically feasible for mine
monies to ensure compliance with the DPM when fan costs are added, the total cost
rule for 15 employees exposed to the approaches $1.5 million. We note that operators. In the cost estimates for this
polluted air when they venture outside of the the upper end of the range of the final rule, we have included cost related
cab and can use PPE? MSHA also did not commenter’s estimated cost for a new to operator evaluation of different
allow the most cost-effective method of use shaft and fan of $1,500,000, would not technologies in an effort to determine
of PPE and other administrative controls to necessarily be considered economically the most effective method for
reach the final limit. compliance.
infeasible for a stone mine of this size.
In responding to these comments, we The cost of this shaft and fan, when A number of comments were received
note first that mine operators have amortized over 20 years at a discount on the cost of medical evaluations.
available engineering control options rate of 7%, results in an annualized Under the final rule, a miner is required
other than cabs and ventilation, and yearly cost to the operator of $142,000. to wear respiratory protection if the
second, that under certain The estimated total yearly compliance miner is overexposed to DPM and all
circumstances, PPE is allowed as a cost for a medium sized stone mine was feasible engineering and administrative
means of compliance. Under determined in the Regulatory Economic controls are installed. Prior to being fit
§ 57.5060(d), mine operators have been Analysis (REA) for the 2001 final rule to tested or assigned to a task where
granted great flexibility in choosing be $150,738 based on an inventory size respiratory protection is required, the
controls to attain compliance, and are of 17 pieces of diesel equipment. In miner must be evaluated by a physician
not limited to only cabs or ventilation. 2002, this mine operator reported a total or other licensed healthcare professional
The operator of the two large stone diesel equipment inventory of 60 pieces to determine whether the miner is
mines has acknowledged having had of diesel equipment at the subject mine. medically capable of wearing a
success with alternative diesel fuels, Applying a ratio multiplier of 3.5 (60/ respirator in the mine. As shown in
and has also acquired new equipment 17) to the estimated $150,738 Table IX.1 later in this preamble, the
with low emission engines. However, compliance cost from the 2001 REA estimated yearly cost to the
they have not utilized diesel particulate results in an estimated yearly underground M/NM mining industry of
filters on any equipment, and it is not compliance cost for the mine of this medical evaluation requirement is
clear whether expanded use of low $527,583. Thus, if a new ventilation about $20,000. Comments on medical
emission engines or the use of shaft and fan are installed to attain evaluation included:
• Prior to any miner being placed into a respirator, we only require a re- excess number of lung cancer deaths per
respirator, steps are taken to ensure that the evaluation when the mine operator has thousand miners occupationally
miners are medically fit for wearing a reason to believe that conditions have exposed to DPM at a specified mean
negative pressure respirator. A formal
changed which could adversely affect DPM concentration. The excess is
medical evaluation is conducted prior to
being fit tested and annually thereafter. To the miner’s ability to wear a respirator. calculated relative to baseline, age-
date, approximately 65 miners needed We also will accept prior medical specific lung cancer mortality rates
additional evaluation to receive clearance to evaluations to the extent the mine taken from standard mortality tables. In
wear a negative pressure respirator. The operator has a written record and there order to properly estimate this excess, it
average cost for the additional medical have not been any changes that will is necessary to calculate, at each year of
evaluation was $250/visit. Estimated annual adversely affect the miner’s ability to life after occupational exposure begins,
cost for medical clearance has been $16,000. wear a respirator. We believe that this the expected number of persons
• MSHA seeks comments on whether the approach will minimize the economic
final rule should include a provision surviving to that age with and without
requiring a medical evaluation to determine
burden on the mine operator in DPM exposure at the specified level. At
a miner’s ability to use a respirator before the conducting medical evaluations while each age, standard actuarial adjustments
miner is fit tested or required to work in an still protecting the miner. must be made in the number of
area of the mine where respiratory protection VI. Summary of Benefits survivors to account for the risk of dying
must be used. Barrick already complies with from causes other than lung cancer.
this proposed requirement. Each of our In Chapter III of the Regulatory Occupational exposure is assumed to
employees undergoes a medical evaluation Economic Analysis in support of the begin at age 20 and to continue, for
before being fitted with a respirator * * * 2001 final rule (2001 REA), we
Based on currently available data, we
surviving miners, until retirement at age
demonstrated that the DPM final rule for 65. The accumulation of lifetime excess
estimate that the average cost per person for M/NM mines will reduce a significant
medical evaluations for our Goldstrike risk continues after retirement through
health risk to underground miners. This the age of 85 years.
operations is $660.
• Greens Creek also conducts its own risk included the potential for illnesses Table IV–9 in Section IV of this
pulmonary function tests on individuals and premature death, as well as the Preamble, taken from the 2001 risk
required to wear respirators under our attendant costs to the miners’ families, assessment, shows a range of excess
respiratory protection program. That program the mine operators and society at large. lung cancer estimates at mean exposures
includes proper fit testing. We have on-site We have incorporated into this
equal to the final DPM limit. The eight
technicians who are certified to conduct rulemaking record the previous DPM
these tests, however, the analysis of the exposure-response models employed
rulemaking records, including the risk
pulmonary function tests is provided by a were based on studies by Säverin et al.
assessment to the 2001 final rule.
licensed healthcare provider. The tests cost (1999), Johnston et al. (1997), and
Benefits of the 2001 final rule include
roughly $17.00 per individual. Steenland et al. (1998). All of the
• At our mines, we provide a medical
continued reductions in lung cancers. In
exposure-response models shown are
exam and certification of the ability to wear the long run, as the mining population
monotonic (i.e., increased exposure
a respirator upon hire * * * If the miner’s turns over, we estimated that a
yields increased excess risk, though not
health conditions change preventing the safe minimum of 8.5 lung cancer deaths will
be avoided per year. We noted that this proportionately so). Thus, despite
use of a respirator, then additional tests can
be provided including spirometry and if estimate was a lower bound figure that evidence from recent sampling of
indicated, a medical examination. We have could significantly underestimate the substantial improvements attained since
not had a case where a miner’s health magnitude of the health benefits. For the 1989–1999 sampling period
changed preventing the wearing of a example, the mean value of all eight addressed by the 2001 risk assessment,
respirator, that the miner was not aware of underground M/NM miners are still
the health condition. We do not object to
quantitative estimates examined in the
2001 final rule was 49 lung cancer faced with an unacceptable risk of lung
annual spirometry testing following cancer due to their occupational DPM
guidelines developed and supervised by a deaths avoided per year.
Other benefits noted in the 2001 REA exposures.
medical doctor or other medical professional.
We do object to the added expense of were reductions in the risk of premature Another principal conclusion of the
requiring a medical exam every year if there death from cardiovascular, 2001 risk assessment was:
are no indicators of a medical necessity, cardiopulmonary, or respiratory causes By reducing DPM concentrations in
either by the miner’s own request or the and reductions in the risk of sensory underground mines, the rule will
conditions mentioned. irritation and respiratory symptoms. substantially reduce the risks of material
Mine operators that provided However, we did not include these impairment faced by underground miners
comments on the cost of medical exposed to DPM at current levels.
health benefits in our estimates because
evaluations for respirator users already we could not make reliable or precise DPM levels have declined since
routinely conduct such evaluations. quantitative estimates of them. MSHA’s first sampling period (from
Based on the significant disparity in Nevertheless, we noted that the 1989 to 1999). MSHA expects that
quoted costs from $17 to $660 per expected reductions in the risk of death further improvements will continue to
miner, it appears that some operators’ from cardiovascular, cardiopulmonary, significantly reduce the health risks
evaluations are quite basic, consisting of or respiratory causes and the expected identified for miners. There is clear
a simple pulmonary function test and reductions in the risk of sensory evidence of DPM’s adverse health
possibly the completion of an employee irritation and respiratory symptoms are effects, not only at pre-2001 levels but
questionnaire, whereas other operators likely to be substantial. also at the generally lower levels
are apparently conducting actual The 2001 risk assessment used the currently observed at many
medical examinations. No commenters best available data on DPM exposures at underground mines. These effects are
provided information suggesting that underground M/NM mines to quantify material health impairments as
the requirement for medical evaluations excess lung cancer risk. ‘‘Excess risk’’ specified under section 101(a)(6)(A) of
would be economically infeasible. refers to the lifetime probability of dying the Mine Act. During the time period
Although we require a medical from lung cancer during or after a 45- from November 1, 2003 to January 31,
evaluation to determine a miner’s ability year occupational DPM exposure. This 2006, 1798 valid personal compliance
to wear a respirator before using a probability is expressed as the expected samples from all mines covered by the
2001 rule were collected. From these policy, which is based on the Second presently infeasible for the mining
samples collected, 18% (324) of samples Partial Settlement Agreement and data industry to comply with 160TC µg/m3,
exceeded 308EC µg/m3, 22% (396) in the rulemaking record, would be the and we have no data to confirm in court
exceeded 350TC µg/m3, and 64% (1151) same that we used to implement the that a 160 TC sample is not the result
exceeded 160TC µg/m3. Because the 400TC µg/m3 interim limit before we of interferences.
exposure-response relationships shown converted it to 308EC µg/m3 in the June Regarding feasibility, we chose May
are monotonic, MSHA expects that 2005 final rule. Whereas we have 2008 for the effective date of the final
industry-wide implementation of the evidence that we can obtain an accurate limit to correspond with when we
final limit of 160TC µg/m3 will sample analysis of the final limit of believe mine operators, especially small
significantly reduce the risk of lung 350TC µg/m3, there is no evidence in mine operators, will be able to find
cancer and other adverse health effects the rulemaking record suggesting that effective approaches to utilizing
among miners. the 1.3 conversion factor is appropriate available DPM control technology so
This final rule would amend the 2001 for substantially lower limits, such as that they will be capable of meeting the
final DPM rule by phasing in the final the final limit of 160TC µg/m3. In the standard. Over the five years since the
limit over a two-year period to address 2005 NPRM, we stated that we have an 2001 final rule was promulgated, both
feasibility constraints that have arisen. additional concern with whether an MSHA and the mining industry have
By phasing in the final limit to address effective sampling strategy exists to gained considerable experience with the
the feasibility issues, this final rule enforce the final limit of 160TC µg/m3 implementation, use, and cost of DPM
would contribute to the realization of with TC as the surrogate. Evidence after control technology. We have reviewed
the benefits mentioned above. In January 2001 suggests that without an this experience, and our own
addition, the medical evaluation and appropriate conversion factor, which we enforcement data, and conclude in the
transfer provisions of this final rule do not have presently, there is no final rule that effective DPM controls
would provide further benefits by practical sampling strategy that would will be feasible and commercially
ensuring that miners who are required adequately remove organic carbon available to mine operators by 2008.
to wear a respirator are able to do so interferences that occur when TC is Other commenters stated that the
safely, thereby obtaining the full health used as the surrogate without the ability proposed five year phase-in period, a
protection available from that to confirm the sample results with an longer phase-in period, or a decision to
equipment. EC analysis. Thus, we acknowledge that adopt the current interim limit of 308EC
VII. Section 101(a)(9) of the Mine Act it is questionable whether the final limit µg/m3 as a final standard would all
with a TC surrogate of 160TC µg/m3 comply with Section 101(a)(9) of the
Section 101(a)(9) of the Mine Act
would provide more protection for Mine Act, and that we should take no
provides that: ‘‘No mandatory health or
safety standard promulgated under this miners than the final limits of 350TC µg/ action to require reductions below the
title shall reduce the protection afforded m3 when we use the 1.3 conversion current interim standard. These
miners by an existing mandatory health factor to confirm an overexposure. We commenters also noted that our inability
or safety standard.’’ We interpret this have the burden of proof in court to to enforce a final limit of 160TC µg/m3
provision of the Mine Act to require that demonstrate that an overexposure to is critical because Section 101(a)(9) is
all of the health or safety benefits DPM actually occurred and the sample predicated on the assumption that the
resulting from a new standard be at least result is not due to interferences. If we existing standards are enforceable, and
equivalent to all of the health or safety were to enforce the final DPM limit of therefore, ensure the health of miners.
benefits resulting from the existing 160TC µg/m3, we would need to validate They do not believe that the final limit
standard when the two sets of benefits a TC sample result, which cannot be of 160TC µg/m3 would provide any more
are evaluated as a whole. The U.S. Court done without an appropriate conversion protection than the 308EC µg/m3, and
of Appeals for the D.C. Circuit approved factor for EC at that level. Discussion of that many mines will not be able to
such a ‘‘net effects’’ application of the complexity of developing an comply with the 160TC µg/m3 due to
Section 101(a)(9). Int’l Union, UMWA v. appropriate conversion factor for the economic and technological feasibility
Federal Mine Safety and Health Admin., final limit is discussed in Variability of issues. These commenters further stated
407 F. 3d 1250, 1256–57 (D.C. Cir. the Relationship Between EC and TC. that most miners at these sites will be
2005). We requested comments in the 2005 required to wear respirators for
We conclude that this final rule will NPRM on whether a five-year phase-in extended periods of time.
not reduce protection afforded miners period for lowering the final limit to We disagree with these commenters.
under the 2001 final rule. The phase-in 160TC µg/m3 complies with Section As discussed above under Section V.A.
period of the 2001 final limit of 160TC 101(a)(9) of the Mine Act. A number of Technological Feasibility, and Section
µg/m3 is not feasible for the mining commenters objected to our 2005 NPRM V.B., Economic Feasibility, we are
industry as a whole in May 2006, but we that would have delayed confident that feasible technology exists
could not justify a greater reduction in implementation of the final limit of to reduce miners’ exposures to DPM to
the final limit than 350TC µg/m3 before 160TC µg/m3 until 2011. They stated the final limit by May 2008. Although
May 2008. Feasibility issues with that the 2005 NPRM would weaken most mines can feasibly comply with
respect to operator compliance are protection provided by the 2001 final the existing DPM final limit of 308EC µg/
discussed above. Moreover, we intend rule, a consequence that Section m3 we expect that some miners will
to convert the final limits of 350TC µg/ 101(a)(9) prohibits, since the lower level continue to have to wear respiratory
m3 and 160TC µg/m3 in a separate can be met in some jobs in underground protection under the final limit of 160TC
rulemaking by January 2007. As we said metal and nonmetal mines, if not in all µg/m3. By phasing in the 160TC µg/m3
in the 2005 NPRM, if we do not jobs. They believe that the 2005 NPRM final limit over two years, we believe
complete this rulemaking by that time, violates the law since we would be that many existing compliance
we will use the EC equivalent as a check raising the final limit above 160TC µg/m3 difficulties can be successfully resolved
to validate that an overexposure to the and extending the timeframe for its as mine operators are able to access
350TC µg/m3 final limit is not the result applicability. In response, we alternative fuels and become more adept
of interferences. This enforcement emphasize that we determined that it is and familiar with DPFs.
Similarly, some commenters stated violating the requirements of Section surrogate for measuring DPM
that the proposed standard is based on 101(a)(6)(A) by proceeding with the concentrations. In our 2005 final rule,
the wrong exposure matrix, is infeasible, rulemaking. We disagree. We have we changed the surrogate for the interim
and should be withdrawn. They believe discussed our data to support our concentration limit measured by TC to
that implementation of the 160TC µg/m3 position to proceed with requiring the a comparable permissible exposure limit
final limit would result in widespread mining industry to continue to take the (PEL) measured by elemental carbon
experimentation with unproven and initiative to further reduce miners’ (EC), which renders a more accurate
untested control technology that exposures to DPM. Throughout this DPM exposure measurement. We also
presents new and potentially significant rulemaking, we expressed our intent to committed to revising the 2001 final
risks to miners. In these commenters’ phase in the final limit of 160TC µg/m3 concentration limit of 160TC µg/m3 in
views, such a result would violate the over time rather than in 2006. With future rulemaking. Currently, the 160TC
Mine Act and should not be permitted. regard to the collaborative study µg/m3 final limit is to become applicable
We responded to these control between NIOSH/NCI, if the study on May 20, 2006.
technology issues in our feasibility becomes available, we will assess it to In our 2005 NPRM, we recommended
discussion of this preamble at Section determine if it provides additional staggering the effective dates for
V. It is important to note, nevertheless, information about the relationship implementing the final limit, to be
that we stated in the 2005 NPRM that between DPM exposure levels and phased-in over a five-year period, and
implementation issues may adversely disease outcomes. NIOSH, in its recent decreased approximately 50 micrograms
affect the feasibility of using DPFs to comments to our 2005 final rule, stated each year until the final limit of 160TC
reduce exposures despite the results that, ‘‘In summary, new peer-reviewed µg/m3 would be reached in January
reported in NIOSH’s Phase I Isozone publications addressing the health 2011. This proposal was based on our
Study. Under the prescribed timeframes effects of exposure to diesel exhaust position that the industry was
of the final rule, mine operators should continue to support MSHA’s 2001 risk encountering economic and
be able to resolve their unique analysis and its 2005 updated technological implementation issues
implementation issues with DPFs. information on health effects.’’ that could affect feasibility, while
Moreover, proper selection of available Considering the foregoing, we do not seeking to further reduce miners’
filters will resolve the problem with believe that it is in the best interest of exposures (70 FR 53283). These
risks to miners from increased levels of miners’ health to delay beyond the implementation issues surfaced
nitrogen dioxide. As we stated implementation dates of the final rule. following promulgation of the 2001 final
previously, we are confident that the A number of other commenters rule. We stated in the 2005 NPRM that
current rulemaking record includes believe that the five year phase-in the mining industry, as a whole, may
sufficient scientific data to retain the period would have complied with need additional time to address these
final limit of 160TC µg/m3. 101(a)(9) of the Mine Act unless this implementation issues and find
More importantly, we have no rulemaking is not completed before May effective solutions for implementing
evidence to substantiate deleting the 20, 2006, the existing effective date of additional DPM controls (70 FR 53284).
final limit, especially when miners’ the 160TC µg/m3 final limit. They stated We also proposed changing the final
exposures are expected to further that the Mine Act provision applies only concentration limit to final permissible
decline over time, based on our upon the effective date of a requirement exposure limits (PELs), and we noted
enforcement sampling results. The 2001 rather than the promulgation date of the that special extensions of time in which
risk assessment and its updates confirm standard. Consequently, they advise that to comply with the final PELs under
the serious health risks to miners from existing § 57.5060(c) would apply to
if the Secretary were to allow the 160TC
exposure to DPM, and we intend for the each of the phased-in final limits,
µg/m3 final limit to take effect on May
mining industry to continue to reduce including the initial final limit of 308EC
20, 2006 then the Mine Act would
miners’ exposures to the final limit of µg/m3. We explained that mine
prohibit any subsequent reduction or
160TC µg/m3 by May 2008. operators could apply to the District
phase-in period. We do not agree with
Additionally, although some mines may Manager if they were seeking additional
these commenters’ interpretation of the
experience implementation difficulties time to come into compliance with each
Mine Act. We refer the commenters to
in meeting the DPM limits, the final rule of the final limits, due to technological
our explanation in this section as to
allows for instances where mine or economic constraints. We requested
why we must phase in the final limit of
operators may request special comments on the impact of granting
extensions of time in which to comply 160TC µg/m3, and why we do not believe extensions for compliance with
with the final limits in situations where that we have violated our mandate exposure limits that are greater than the
controls may be technologically or under Section 101(a)(9) not to reduce 160TC µg/m3 final limit.
economically infeasible. Finally, our protection afforded by an existing In the 2005 NPRM, we also asked the
longstanding enforcement policy standard. mining community to provide us their
considers an individual mine operator’s VIII. Section-by-Section Analysis views on whether five years is the
ability to feasibly comply with the correct timeframe for reducing miners’
applicable limit. If we determine that A. PEL § 57.5060(b) exposures to 160TC µg/m3. Additionally,
the mine operator has installed all Section 57.5060(b) in the 2001 final we requested information on whether
feasible controls and has placed affected rule established a final concentration the proposed annual 50 microgram
miners in an appropriate respiratory limit of 160TC µg/m3 which was reductions of the final DPM limit are
protection program, we will not issue a scheduled to become effective on appropriate or, in the alternative, should
citation for an overexposure. January 20, 2006. The final limit the final rule include an approach such
Another commenter stated that due to restricts total carbon (TC) as one or two reductions. We asked
the scientific uncertainty that DPM concentrations in underground mines in whether our reduction scheme for the
poses, we should wait for the outcome areas where miners normally work or final limit of 50 micrograms of TC each
of the NIOSH/NCI study to help identify travel. Total carbon is the sum of succeeding year, from 400TC µg/m3
the appropriate exposure limit. The elemental and organic carbon. In the (converted to a comparable limit of
commenter also stated that we are 2001 final rule, we chose TC as the 308EC µg/m3) is feasible, and whether
it will provide additional time for the rulemaking. The public comments in policy in our updated DPM Compliance
implementation of controls, response to our requests are reflected Guide.
development of distribution centers for below in this section. As we stated in the 2005 proposed
alternative fuels, and consideration of Based on feasibility with respect to rule, we will continue to cite a violation
the economic impact of the proposed compliance and an effective strategy for of the DPM limit only when we have
phased-in approach (70 FR 53288). implementing the final limits, we solid evidence that a violation actually
Finally, we emphasized our need for believe the mining industry as a whole occurred. Accordingly, we will apply
information and views on the mining can reduce DPM levels to the 2001 final the existing error factor to the first
industry’s current experiences with limit of 160TC µg/m3 by May 20, 2008. phased-in final limit of 308EC µg/m3 to
feasibility of compliance with a lower We have determined that M/NM determine that an overexposure to the
limit than the interim PEL of 308EC µg/ underground mines using diesel final limit has occurred. The error
m3. In addition to our requests for powered equipment are capable of factors for the first step-down limit of
comments, we notified the mining reducing miners’ exposures to 160TC µg/ 350TC µg/m3 and second step-down
community that we were committed to m3 by May 20, 2008, rather than on limit of 160TC µg/m3 will be slightly
initiating a separate rulemaking to January 20, 2011. As proposed, the different.
determine the correct TC to EC initial final limit will be the same as the We will continue to base our
conversion factor for the phased-in final current interim limit of 308EC µg/m3 and compliance determinations on a single,
limits. As discussed later in the will remain in effect through January 19, personal sample, taken over the miner’s
subsection ‘‘Variability of the 2007. On January 20, 2007, the final full shift as specified in existing
Relationship Between EC and TC’’, we limit will be reduced, as we proposed, § 57.5061, Compliance determinations.
will address those comments in our to 350TC µg/m3, which represents a 50 Also, under existing § 57.5060(d), we
future rulemaking. We further stated in microgram reduction. This limit, and will continue to require mine operators
the 2005 NPRM that in the event that we the 160TC µg/m3 final limit, will be TC to install all feasible engineering and
did not complete this subsequent limits rather than EC limits, since we do administrative controls to reduce
rulemaking to establish a conversion not have current data establishing a miners’ exposures to DPM. When such
factor before January 20, 2007, the date controls do not reduce a miner’s
conversion factor from TC to EC. We
of the first proposed reduction of the exposure to the DPM limit, controls are
discuss the complexity of developing a
final limit, we were considering using infeasible, or controls do not produce
conversion factor later in this section
the current 1.3 conversion factor that we significant reductions (as defined in the
under ‘‘Variability of the Relationship
use to establish the interim DPM PEL of 2005 rule (70 FR 32868, 32916) in DPM
Between EC and TC.’’
308EC µg/m3 to convert the phased-in As we did with the 400TC µg/m3
exposures, operators must continue to
final DPM TC limits to EC equivalents. use all feasible engineering and
interim limit pursuant to the Second administrative controls and supplement
As we did with the interim TC limit
Partial Settlement Agreement, we will them with respiratory protection. When
pursuant to the Second Partial
use the EC equivalent as a check to respiratory protection is required under
Settlement Agreement, we would use
validate that an overexposure to the 350 the final standard, mine operators must
the EC equivalents as a check to validate
TC limit is not the result of interferences establish a respiratory protection
that an overexposure is not the result of
(67 FR 47296, 47298). We will program that meets the specified
interferences until this issue is
implement an enforcement policy for requirements. See the discussion of
addressed in future rulemaking.
In development of this final rule, we the 350TC µg/m3 final limit that will use respirator use in Section VIII.C. Medical
also considered public comments EC as an analyte to ensure that a citation Evaluation and Transfer.
related to the final limit which we based on the 350TC µg/m3 limit is valid We have determined that these new
received in response to the 2002 and not the result of interferences. final limits are both technologically and
ANPRM to revise the DPM limits. Some Under our policy, we will first develop economically feasible for the M/NM
commenters to the ANPRM an appropriate error factor to account mining industry to achieve as
recommended that we propose separate for variability in sampling and analysis scheduled. Feasibility data, however, do
rulemakings for revising the interim and from such things as pump flow rate, not support delaying the applicability of
final DPM limits to give us an filters, and the NIOSH Analytical the 160TC µg/m3 final limit until 2011,
opportunity to gather further Method 5040. If the TC measurement is nor do they support application of the
information to establish a final DPM below 350TC µg/m3 plus the error factor, 160TC µg/m3 final limit as early as May
limit. In the 2003 NPRM, we agreed we will not issue a citation for an 2006. Regarding feasibility, we chose
with these commenters and solicited overexposure. If the TC measurement is May 2008 for the effective date of the
other information from the mining above 350TC µg/m3 times the error final limit to correspond with when we
community that would lead to an factor, we would look at the EC believe mine operators, especially small
appropriate final DPM standard. measurement from the sample obtained mine operators, will be able to find
Moreover, we announced our intention through the NIOSH Analytical Method effective approaches to utilizing
to publish a separate rulemaking to 5040, and multiply EC by a factor of 1.3 available DPM control technology so
amend the existing final concentration to produce a statistical valid estimate of that they will be capable of meeting the
limit in § 57.5060(b). what the TC result is without standard. Over the five years since the
To assist us in achieving this interferences. If the TC measurement is 2001 final rule was promulgated, both
objective, we requested comments on an above this estimate, we would not issue MSHA and the mining industry have
appropriate final limit to replace the a citation when the EC measurement gained considerable experience with the
160TC µg/m3 concentration limit, and times the multiplier is below the TC implementation, use, and cost of DPM
asked for information on an appropriate analysis. control technology. We have reviewed

surrogate for measuring miners’ DPM The 1.3 multiplier that we will use to this experience, and our own
exposures. We concluded our request estimate TC (i.e., EC × 1.3 = estimated enforcement data, and conclude in the
for information by clarifying that TC) is derived from NIOSH’s final rule that effective DPM controls
revisions to the final DPM concentration determination that TC is 60–80% EC. will be feasible and commercially
limit would be included in a separate We will announce our enforcement available to mine operators by 2008. We
continue to acknowledge that our 2001 control efforts on diminishing the DPM that if we pursue our proposed course,
feasibility projections for the ability of level in air breathed by a miner is or worse, allow the 160TC µg/m3 limit to
the M/NM mining industry to comply supported by some commenters in take effect immediately, it would result
with the final limit of 160TC µg/m3 by labor. These commenters stated, ‘‘We in an infeasible rule with which the
January 2006 were incorrect. agree that personal sampling gives a underground M/NM mining industry
In the 2005 proposed rule, we better representation of real exposure, could not comply. They believe that this
continued to project that many mine and we support the change in the final could potentially subject mines to
operators would have to use DPFs to rule.’’ A number of industry closure orders, and require miners to
reduce DPM levels to the final commenters stated that we should wear respirators to protect against what
concentration limit. We believe that rescind the 160TC µg/m3 final limit, many regard as undemonstrated adverse
DPFs can be a very effective engineering since they believe that it is unjustifiable health effects. These commenters also
control throughout the mining industry and infeasible, and urged us to adopt as urge that we retain the interim limit of
for reducing miners’ exposures to DPM, the final limit the current interim 308EC µg/m3, limit pending results of
provided mine operators address their exposure limit of 308EC µg/m3 currently NIOSH/NCI study.
implementation issues. These in place. We disagree, primarily because Another mine operator noted that the
implementation issues include such the 2001 risk assessment concludes that proposed phase-in of the final limit is
decisions as DPF media selection, exposure to DPM could result in a an improvement, but agreed with some
sizing, regeneration scheme, and material impairment of miners’ health other commenters that we need to stay
installation. and functional capacity, including lung the interim and final limits and wait for
The rulemaking record includes cancer, and that our analysis has completion of the NIOSH/NCI Study.
updated data and promising information concluded that controls significantly We have sufficient evidence in the DPM
from the Biodiesel industry on the reducing DPM exposure are both rulemaking record which supports the
progress of increasing mine operators’ technologically and economically need for us to lower miners’ current
access to this fuel. Accessing biodiesel feasible. Moreover, in the 2005 NPRM, exposures to DPM beginning in January
fuels has been a feasibility issue for M/ when we decided that we should 2007. We will, however, continue to
NM mine operators primarily due to the consider phasing in the final limit of closely monitor the progress of the
lack of sufficient distribution centers. 160TC µg/m3, we acknowledged NIOSH/NCI joint study, and when the
The growing trend on demand and complications with feasibility and results of this study become available,
supply of alternative fuels; availability stated the following: we will carefully consider them.
of special extensions; enforcement of We believe that wider use of alternative
As discussed at length in Section V.
our hierarchy of controls strategy; fuels and filter technology can make the addressing feasibility of the final rule,
additional time for the mining industry 160TC µg/m3 final limit feasible if a we now have more definitive
to continue to resolve their existing staggered phase-in approach is adopted. By information on availability of alternative
maintenance and other implementation lowering the exposure limit in intervals over fuels and the implementation issues that
issues with control technology; five years beginning in January 2007, market mine operators face to warrant the time
ventilation upgrades; continued forces should have sufficient time and frames under this final rule. We,
introduction of cleaner engines; and incentive to adjust to the new standard. therefore, cannot justify further delays
Specifically, a reliable alternative fuel
current enforcement data support both distribution system should induce mine
of implementing the applicability of the
the economic and technological operators to adopt this relatively low-cost 160TC µg/m3 beyond May 2008.
feasibility of the final limits as method to achieve compliance. The We also considered that the mining
prescribed in this final rule. Although development and distribution of alternative industry has had since January 2001 to
the risk assessment indicates that a fuels is also encouraged by existing tax work through many of their
lower DPM limit, lower than 160TC µg/ credits. We believe that regional distribution implementation issues. By now mine
m3, would enhance miner protection, it networks are beginning to emerge. We seek operators have implemented more
is infeasible for the underground M/NM data on alternative fuel distribution systems effective controls to meet the interim
(70 FR 53283–84). limit. These controls can be used to
mining industry to reach a lower final
limit. We received comments on the assist in reducing miners’ exposures
We acknowledge in the Technological availability of distribution systems and even further, ultimately resulting in
Feasibility discussion in Section V of other means of DPM exposure controls successful achievement of the final
this preamble that our projections for and have discussed them in detail in limits. We acknowledge that the mining
availability of alternative fuels were Section V of this preamble. Our industry as a whole still needs more
underestimated in the 2005 proposal. sampling data, compliance experience, time to meet the 160TC µg/m3 final limit
We also considered our updated and comments in the rulemaking record and believe May 2008 will give them an
enforcement data from November 2003 lead us to conclude that reductions appropriate amount of time for
to January 2006 which show that 82% below the 308EC µg/m3 limit are implementing additional controls
of the 1,798 samples we collected were achievable by the phase-in dates needed to comply with the final limit.
below the initial final limit of 308EC µg/ specified. Most industry commenters, however,
m3, 78% were below the January 2007 Another industry commenter emphasized that compliance with the
final limit of 350TC µg/m3, and 46% suggested that the proposed five-year interim limit of 308EC µg/m3 still poses
were below the May 2008 final limit of phase-in of the final limit would drive feasibility issues for the mining industry
160TC µg/m3. We remain committed to technology development but would not as a whole. Some other industry
assuring that mine operators continue allow sufficient time for further research commenters added that the proposed
the significant progress they have and development, and in-field testing. reductions are infeasible for 90% of the
already demonstrated in reducing This commenter did state, however, that industry.
miners’ exposures to DPM. a two-phase approach would allow We disagree with these commenters.
We received a number of comments mine operators to implement changes in Our data in the 2005 final rule
from the mining community on our mining techniques and strategies and demonstrate that compliance with the
proposed revisions to the final limits. would provide for continued protection interim limit is both technologically and
Establishing a standard that focuses of miners. Some other commenters state economically feasible (70 FR 32915,
32939). Moreover, our updated EPA’s implementation dates with no recommended that the first reduced
compliance sampling results requirements on engine retrofits. As final limit be the EC equivalent of 250TC
demonstrate that most mines are discussed in the Technological µg/m3 on January 20, 2009. The final EC
presently capable of meeting the interim Feasibility section of this preamble, the equivalent of 160TC µg/m3 would
limit of 308EC µg/m3. Like in the 2005 EPA’s emission regulations will become effective on January 20, 2011.
final rule, compliance with this final significantly reduce DPM through the They suggest that this schedule would
rule also relies on our traditional use of DPFs installed on newly more realistically take into account the
hierarchy of controls enforcement manufactured engines. We agree that purchasing decisions by the mining
strategy (70 FR 32915–16) discussed this technology will benefit the mining industry to buy new equipment and
above. Thus, this regulatory scheme industry by offering mine operators the engineering controls designed to
adequately accomplishes control of opportunity to purchase this technology ultimately achieve compliance with the
exposure under circumstances where an in the form of new and used machines final limit. In this final rule, we based
individual mine operator cannot reduce over time. However, we do not believe our timetable on definitive information
a miner’s exposure to the final limit that it would be cost effective for the on availability of alternative fuels and
solely by use of engineering and mining industry to purchase all new the implementation issues that mine
administrative controls, including work equipment when the EPA engines operators face in complying with the
practices. become available in order to get the final limit of 160TC µg/m3. We discussed
One commenter took the position that DPM controls that will be mandated by this at length in Section V, Feasibility,
we should retain the current interim the EPA as suggested by the commenter. of this final rule.
limit of 308EC µg/m3 based on EPA’s We do believe however, that the EPA Organized labor commented that
timeframe for industry to develop standards will make it easier for mine exposure to DPM causes cancer, and
cleaner burning engines for diesel operators over time to purchase diesel lawful or not, they believe that delay
engines regulated by EPA. The engines and machines which are will cost miners’ lives, since they are
commenter stated that the Tier 4 equipped with DPFs which should breathing these fumes at toxic levels.
engines mandated by EPA are to be decrease the need to retrofit DPFs. The These commenters discussed what they
available in the very near future and are MSHA DPM final rule provides mine believe to be our protracted rulemakings
designed to reduce the DPM levels by at operators with an opportunity to to revise the 2001 final rule. They also
least 90%. Tier 4 engines that are greater purchase some on-highway vehicles expressed their disagreement with us in
than 130 hp are to be available in 2011; which will include DPFs but will not be changing the applicability of the 2001
engines from 56 to 130 hp will be available until January 2007. As final limit of 160TC µg/m3, and not
available in 2012; and 19 to 56 hp will discussed in Section V of this preamble, including medical evaluation and
be available in 2013. This includes the this will initially include automotive transfer protection for miners. They
availability of very low sulfur fuel as pickup trucks and other utility trucks. stated, among other things, that:
well. According to the commenter, this In addition, EPA is mandating the use
Tier 4 technology deals with the source of ultra low sulfur diesel fuel, less than On September 7, 2005, the agency
proposed to postpone the final PEL by five
of DPM exposures; however, they 15 ppm, for on-highway vehicles more years, reducing it instead by small
believe that the final DPM limit should starting in mid 2006. This fuel will not steps. The agency also suggested there might
not be reduced until these engines are be required by MSHA; however this be difficulties converting the 160 µg/m3 TC
available and tested in the underground may be the only economical diesel fuel limit to an appropriate EC limit, and
mine environment. They also remark to purchase over the coming years based proposed to leave that determination to yet
that if MSHA believes that the on availability. Eventually by 2010, 15 another rulemaking. The final standard has
technology will eventually catch up to ppm sulfur fuel will be required for all now been delayed until May 20, but MSHA
its DPM final limit, then the phase-in nonroad diesel powered vehicles and clearly intends to delay it far longer,2
schedule should coincide with the EPA due to the EPA requirements, we ostensibly on the grounds of feasibility, and
based primarily on unsubstantiated claims
mandated schedule for clean engines. In anticipate that 15 ppm sulfur fuel will
from the mine operators. These proposed
response, the EPA specifically exempts be the only available diesel fuel to changes would significantly weaken the rule
underground mining diesel powered purchase. Even though 15 ppm sulfur by permitting the continued exposure of
equipment, as we addressed in the 2001 fuel does directly reduce DPM or EC, it miners to levels of DPM the agency has found
final rule (Control of Emissions of Air will be needed for compatibility with to be unacceptable * * *
Pollution From Nonroad Diesel Engines, specialized catalyst formulations used MSHA made a promise to underground M/
40 CFR Parts 9, 86, and 89 (1998)). by engine manufacturers for DPM and NM miners in 2001. It told them that help
However, § 57.5067, Engines, allows the nitrous oxide reductions. was on the way and that they would someday
mine operator to introduce EPA A number of industry commenters be protected from choking levels of diesel
certified diesel engines into mines using noted that experience of both MSHA exhaust. Relief would come slowly, and
and the industry under the DPM rules exposures would be reduced in steps, but by
either an on-highway vehicle that is a
January 2006, a protective standard would be
1994 model year or newer, a Tier 1 demonstrate an evolving learning in place. MSHA now proposes to break that
nonroad diesel engine, or a Tier 2 process regarding controlling diesel promise.
nonroad engine dependent on the exhaust. It is in this context that these Instead, MSHA should withdraw the
horsepower. Also in the 2001 final rule, commenters stated that they support the proposal to delay the 160 µg/m3 TC limit, and
we documented through our risk proposed staggered effective date revise its effective date to no later than July
assessment the need for us to proceed schedule for implementation of the final 20, 2006. The USW has no objection to
presently to reduce miners’ exposures. limit, provided that we address their converting the standard to one based on EC
The final rule requires the mining other concerns related to the final limit. at some time in the future, when the data
exists to do so. For the time being, TC and
industry to continue to make progress in They believe that it would be more

appropriate to promulgate a two-step EC measurements should be taken
further reducing DPM levels in
underground M/NM mines. phased-in approach for the final limit 2 The USW did not object to the 5 month delay;
The EPA standards referred to by the ending on January 20, 2011, rather than it was necessary to allow the rulemaking process to
commenter only include newly an annual, 50 microgram reduction of be as complete as possible. However, we object
manufactured diesel engines based on the final limit. These commenters strenuously to the 5 year delay.
simultaneously, so that MSHA or NIOSH can µg/m3 by May 2008. Initially, we expect documents are guidelines that are used
calculate a proper conversion factor when the to have greater numbers of miners in the process of determining that an
time comes. (USW, AB29–COMM–117) overexposed to the final limit, than with analytic method accurately measures
As we stated earlier in this preamble, the interim limit. However, we believe what it purports to measure. NIOSH
data continue to support our 2001 risk that miners in this category will decline validation criteria state that the NIOSH
assessment. That risk assessment over time as mine operators introduce Analytical Method 5040 provides a
establishes a material impairment of improved engines and continue to result that differs no more than ±25%
health or functional capacity to miners resolve their implementation and from the true value 95 times out of 100.
from exposure to DPM. We have maintenance problems with DPFs and The NIOSH Analytical Method 5040
incorporated into this rulemaking access problems with biodiesel. validation is documented in several
record the previous DPM rulemaking These industry commenters also point publications. These publications
records, including the 2001 risk out that we should develop, in their include:
assessment. In the 2005 NPRM, we views, an accurate, scientifically (1) Chapter Q of the NIOSH Manual
discussed the decline in miners’ supportable conversion factor to change of Analytical Methods (NMAM), DHHS
exposures to DPM from a mean of the current TC-based final limit of 160TC (NIOSH) Publication No. 94–113,
808DPM µg/m3 (646TC µg/m3 µg/m3 to an EC-based limit. We intend (2) Occupational Monitoring of
equivalent) prior to the implementation to use the best available evidence to Particulate Diesel Exhaust by NIOSH
of the 2001 standard, to a mean of 233TC develop a proposed rule to Analytical Method 5040, Birch, Applied
µg/m3 based on enforcement sampling at appropriately and accurately convert the Occupational and Environmental
that time (70 FR 53283). More recent final DPM limit in the near future. Hygiene, Vol. 17(6):400–405, 2002,
enforcement data show that miners’ We received comments from the (3) Diesel Particulate Matter (as
exposures to DPM continue to decline. mining industry on establishing an Elemental Carbon) 5040, Issue 3: March
Nevertheless, we continue to believe appropriate surrogate for the DPM final 15, 2003, NIOSH Manual of Analytical
that mine operators’ experiences with limit. In our 2005 final rule, we changed Methods (NMAM), Fourth Edition.
control technology confirm that it is the surrogate for the interim limit by In addition to the above documented
infeasible for us to implement the 160TC changing from a concentration limit validations, there are additional peer-
µg/m3 final limit earlier than May 2008. measured by TC to a comparable PEL reviewed studies providing evidence
We believe that these data dictate the measured by EC, which renders a more that the NIOSH Analytical Method 5040
need to afford the mining industry more accurate DPM exposure measurement, method is valid. In a study published by
time to work through their and committed to revising the final Noll, et al., in January 2005 evaluating
implementation and maintenance issues concentration limit in a future sampling results of DPM cassettes, the
with DPFs, and to allow sufficient time rulemaking. The final rule adopts 308EC authors report a 95% upper confidence
for construction of more biodiesel fuel µg/m3 as the initial final limit, but limit Coefficient of Variation (CV) of 7%
distribution centers. retains TC as the surrogate for the 350TC when analyzing samples for EC and 6%
Some industry commenters strongly µg/m3 and 160TC µg/m3 final limits. We for TC. In this same study, NIOSH
suggest that feasibility of the final DPM will initiate a separate rulemaking to reported good agreement and precision
limits must be based on fair and determine the correct TC to EC between EC for DPM samples using SKC
effective implementation of existing conversion factor for the phased-in final impactor and respirable samples in both
§ 57.5060(c) regarding special limit of 160TC µg/m3. laboratory and field studies. The CVs for
extensions of time in which to comply Several commenters to the proposed EC measurements between SKC
with the final DPM limit. It is their rule continue to question the impactors and respirable samples
contention that many mines will be applicability of the 2001 risk assessment ranged from 0.2% to 12.3% when taking
unable to meet the lower DPM limit of when using a surrogate measure of measurements in an underground mine.
160TC µg/m3, even if staggered over a elemental carbon to regulate exposures The CVs for EC ranged from 3.5% to
five-year period as the agency proposed. to DPM. These commenters also 5.4% when samples were taken in a
Some other mine operators stated that question the accuracy of the NIOSH laboratory chamber. Two studies
the special extension process ‘‘is not a Analytical Method 5040 and expressed published in 2004 (Noll, et al., 2004 and
feasible means of salvaging the disapproval for our using EC as a Birch, et al., 2004) reported results from
infeasible 160TC µg/m3, or the surrogate. In contrast, a number of other investigating sampling for EC in the
unworkable and unsupported yearly commenters objected to MSHA not presence of coal dust using submicron
‘phase-in’ proposal.’’ enforcing a limit of 160TC µg/m3 impactors. The results show good
Section 57.5060(c) allows mine immediately. We refer the commenters agreement between submicron EC and
operators to apply to the MSHA District to the preamble to the 2005 final rule respirable samplers for collecting DPM
Manager for additional time to meet the (70 FR 32868) for our position on these samples.
final DPM limits due to economic or issues. Commenters presented some
technological constraints. Mine Error Factor
new information, however, in response
operators must demonstrate infeasibility to the 2005 NPRM. In accordance with generally accepted
of compliance to the District Manager good industrial hygiene practice and
before they can qualify for a special NIOSH Analytical Method 5040 MSHA policy, we develop method-
extension. The feasibility considerations Validation and Accuracy specific error factors to assure that a
for the District Manager in granting The guidelines for development and personal exposure result is more than
special extensions are very similar to evaluation of analytical methods are likely to represent an overexposure.
those for determining feasibility under documented in the NIOSH publications These error factors account for normal
our hierarchy of controls enforcement NIOSH Manual of Analytical Methods, and expected variability inherent in any
scheme. Given the progress the mining Chapter E (NIOSH 2nd Supplement analytic method and sampling protocol
industry has shown in reducing DPM Publication No. 98–119) and Guidelines and provide a basis for interpretation of
levels thus far, we do not believe that for Air Sampling and Analytical Method sampling results. When we interpret
the industry, as a whole, will be unable Development and Evaluation (NIOSH sampling results and make a
to meet the lower DPM limit of 160TC Publication No. 95–117). These determination of compliance, we apply
the error factor to the result to gage Specific Issues Raised by Commenters converting the existing TC limit to an
whether the sample indicates a true on Elemental Carbon Variability of the appropriate EC limit.
overexposure. We use the validated Relationship Between EC and TC Several commenters agreed with our
NIOSH Analytical Method 5040 for use of the 1.3 conversion factor for the
diesel particulate matter to analyze our Industry commenters raised the interim limit and the first phased-in
personal exposure samples collected for following specific issues regarding the final limit of 400TC µg/m3 (308EC µg/
compliance determinations. use of EC as a surrogate for DPM m3), but did not believe sampling
exposure. Commenters asserted that the evidence supported its use at a lower
The NIOSH criteria and guidelines
EC content of DPM is neither stable nor PEL. One commenter recommended we
used for method validation do not
predictable and thus the proposed either use the EC number from the lab
directly apply to the development of
conversion of TC limits to EC limits is evaluation, or use a compliance strategy
error factors. However, similar statistical
not feasible. similar to the method used by the
procedures to develop analytical
methods can also be used to develop We have addressed this issue in the Agency in 2004 for the interim limit of
error factors. The commenters fail to 2005 final rule (70 FR at 32945–32951), 400TC µg/m3.
and we continue to support using EC as Several commenters agreed that more
recognize other differences between
the most suitable surrogate for work is required to develop an
validation of methods and development
measuring DPM. Our 2005 final rule (70 appropriate conversion factor from TC
of error factors.
FR 32868) establishes the measurement to EC for the final limits. They stated it
Error factors are developed to was reasonable to expect sampling and
of DPM using EC as a direct measure of
compare an infinite number of sampling analysis variability to increase, and
total DPM. Using EC as the surrogate
results to a specific target value of the accuracy and precision to decrease at
permits personal sampling of miners
analyte whereas the method validation lower EC levels. They further stated that
(such as those who smoke, operate
protocol specifies a range of 0.1 to 2 MSHA data demonstrate that no
jackleg drills, or load ANFO) that would
times a specific value. Many other accurate conversion factor exists for the
otherwise be difficult or impossible
differences exist between the two highly variable ratio of TC to EC at
using the OC components in the
procedures. levels below the interim standard and
calculation of TC. Several commenters
We believe the NIOSH Analytical also noted that the ratio of EC:TC in that this ratio becomes even more
Method 5040 is most appropriate for use DPM can vary widely. One commenter unstable once diesel equipment is
in a mining environment because: pointed out that EC appeared to make modified by installation of DPM
(1) The results from the additional up nearly all of the TC at the mine with filtering devices.
method validation efforts by NIOSH which he was affiliated. This Other commenters also believed more
using samples collected in mines, as research is needed to determine an
commenter stated that replacing a 400TC
appropriate conversion factor and noted
mentioned above, show the method is µg/m3 limit with a 308EC µg/m3 limit
valid, and that recent evidence indicated the EC to
would impose a much more stringent
TC relationship may change depending
(2) The data we used are generated standard at that mine. Another
on various factors such as fuel type,
from miners’ samples and analyzed in commenter noted that a 308EC µg/m3
engine duty cycle, and the control
our laboratory (using multiple limit would be less protective of miners
technologies being used.
analyzers) and other laboratories than the 400TC µg/m3 limit in cases A number of commenters stated that
account for variability in the where the ratio of EC comprised less an accurate, scientifically supportable
determination of the error factor. than 78% of the TC. One industry conversion factor was essential to their
In response to commenters’ concerns association submitted comments acceptance of a staggered effective date
that ‘‘MSHA has developed this Error authored by a consultant who schedule. One of them further stipulated
Factor as though the NIOSH Analytical emphasized that the highly variable the need for peer review of the
Method 5040 were perfectly accurate for nature of the EC to OC ratio introduces conversion factor. Other commenters
measurements of EC,’’ we refer the ‘‘large and important uncertainties in believe that the EC content of DPM is
commenter to item (2) above. We have the exposure assessments needed to not stable or predictable so the proposed
incorporated inter-laboratory variability sustain QRA [i.e., quantitative risk conversion of TC limits to EC limits is
and inter-instrument variability into the assessment].’’ not feasible and that the measurement of
calculation of the error factor that does, We addressed these concerns EC is not accurate.
in fact, address accuracy. By regarding variability previously in our Organized labor commented that the
incorporating this type of variability we discussion of the Relationship Between only proper course of action for MSHA
account for some possible biases. It was EC and TC in our preamble to the 2005 would be to leave the standard at 160
stated in the 31-Mine study that, based final rule (70 FR 32894–32899). In the µg/m3 TC until an equally protective
on the available data from all 2005 NPRM we solicited comments standard based on EC can be
laboratories, the estimated coefficient of about converting the final phased-in established. They said that leaving the
variation for analytical TC limits based on TC measurements to standard at 308 µg/m3 EC, or going to an
measurements declines from 12.7% to corresponding EC limits. In the 2005 EC level not equivalent to 160 µg/m3 TC
8.0% at TC loadings corresponding to 8- NPRM, we also notified the mining would violate the ‘‘no-less protection’’
hour equivalent concentrations of 160 community that we would initiate a restriction under section 101(1)(9) of the
µg/m3 and 400 µg/m3, respectively. separate rulemaking to determine what Mine Act.
These estimates are approximately 60 the correct TC to EC conversion factor We maintain that the 31-Mine Study
percent greater than those based on the would be for the phased-in TC final data establish that a conversion factor of
limits below 308EC µg/m3. We requested
MSHA and NIOSH data alone. Intra- 1.3 is appropriate for both the initial
and inter-laboratory analytical comments on whether the record and final limit of 308EC µg/m3. As we
imprecision appears to be similar to supports an EC PEL without regard to determined in the 2005 final rule, we
other airborne contaminants’ monitoring any conversion factor, the appropriate believe that the limit of 308EC µg/m3 is
methods used by us and other conversion factor if one is used, and any equally protective of miners’ health and
regulatory agencies. other scientific approaches for equally feasible for the mining industry
to meet. Although the EC:TC ratio can The implication of non-organic in specific cases, we concluded that
exhibit considerable variability in chemicals in a chemical pathway application of the 1.3 conversion factor,
specific cases, we concluded that explaining the induction of lung as suggested in the Second Partial
application of the 1.3 conversion factor, carcinogenesis indicates that organic Settlement Agreement, achieves equal
pursuant to the Second Partial and inorganic chemical compounds, protection and feasibility at the 308EC
Settlement Agreement, achieves the goal acting together, contribute to the µg/m3 final PEL.
of equal protection and feasibility at the toxicity of DPM. Identification of a In the 2005 NPRM we solicited
308EC µg/m3 final PEL. single carcinogenic component of DPM comments about converting the final
We are considering various (whether EC, OC, or some combination phased-in limits based on TC
alternatives for converting the 350TC µg/ of chemicals in DPM) is not germane to measurements to corresponding EC
m3 and 160TC µg/m3 final limits to the issue of whether DPM actually limits. We have discussed the
comparable EC limits. We will consider causes adverse health effects as relationship between EC and TC and
all comments in this rulemaking record established by the 2001 risk assessment conclude the relationship of EC:TC is
concerning the relationship between EC, and its updates. This rule reduces the adequate to promulgate a personal
OC and TC in a separate rulemaking to adverse health risks associated with exposure limit of 308EC µg/m3 final PEL.
determine the most appropriate miners’ exposure to DPM and not just However, we are considering various
conversion of the final TC limits. those associated with the EC or OC alternatives for converting the 350TC µg/
Presently, we believe that the DPM fractions of DPM. m3 and 160TC µg/m3 final limits to
rulemaking record is inadequate for us The NIOSH Analytical Method 5040 commensurate EC limits. We will
to make determinations regarding a characterizes compounds found in DPM consider all comments in this
more appropriate conversion factor into several classes of substances. These rulemaking record concerning the
other than 1.3 for the 350TC µg/m3 final classifications are convenient categories relationship between EC, OC and TC in
PEL. If a rulemaking to establish a and do not distinguish hazardous a separate rulemaking to determine the
conversion factor is not completed compounds from other compounds. As most appropriate conversion of the final
before January 20, 2007, we intend to stated by NIOSH (Birch, 1996), TC limits. Presently, we believe that the
use the 1.3 conversion factor to convert ‘‘[M]ethods that speciate EC and OC are DPM rulemaking record is inadequate
the 350TC µg/m3 final limit to an EC considered operational (Cadle and for us to make determinations regarding
equivalent. We will use the EC Groblicki, 1980) in the sense that the a more appropriate conversion factor
equivalents as a check to validate that method itself defines the analyte.’’ other than 1.3 for the 350TC µg/m3 final
The possible chemical pathways PEL. If a rulemaking to establish a
an overexposure is not the result of
causing adverse health effects conversion factor is not completed
interferences as we did with the 400TC
(including lung cancer) include both before January 20, 2007, we intend to
µg/m3 interim limit pursuant to the
organic and inorganic chemical use the 1.3 conversion factor to convert
Second Partial Settlement Agreement 67
elements. Since we believe that both the 350TC µg/m3 final limit to an EC
FR 47296, 47298). We discussed this
organic and inorganic chemicals equivalent. We will use the EC
concept earlier in this section.
contribute to the overall toxicity of DPM equivalents as a check to validate that
Measurement of EC our use of EC as a surrogate is intended an overexposure is not the result of
to control miners’ exposure to whole interferences as we did with the 400TC
Some commenters stated that any µg/m3 interim limit pursuant to the
carcinogenic effect of DPM is due DPM. As NIOSH stated:
Second Partial Settlement Agreement
entirely to the organic fraction. We Elemental carbon is the superior measure
(67 FR 47296, 47298). We discussed this
believe this assumption is speculative. of exposure to particulate diesel exhaust
because elemental carbon constitutes a large concept earlier in this section.
This assumption contradicts findings Other commenters asserted that
reported by Ichinose et al. (1997b) and portion of the particulate mass, it can be
quantified at low levels, and its only measurement of EC is not accurate and
does not take into account the significant source in many workplaces is the the inherent inaccuracies are not
contribution that inflammation and diesel engine. Selection of an elemental accounted for by the MSHA ‘‘error
active oxygen radicals induced by the carbon marker also was based on previous factor.’’ NIOSH Analytical Method 5040
inorganic carbon core of DPM may have work by Fowler (1985), who evaluated has been validated. The Error Factor
in promoting lung cancers. Indeed, various analytes as indices of ‘‘overall diesel accounts for uncontrollable components
identifying the toxic components of exposure.’’ (Birch, 1996)
of measurement except for the
DPM, and particulate matter in general, We have not obtained additional variability inherent in EC:TC ratios. We
is an important research focus of a information, either provided in have shown these ratios vary between
variety of government agencies and comments or from peer-reviewed mines and within mines. The
scientific organizations (see, for literature, to change our position that commenters obtained additional
example: Health Effects Institute, 2003; the EC and OC fractions of DPM information from us and presented a
Environmental Protection Agency, contribute to the adverse health effects new analysis addressing the validity of
2004b). of miners caused by exposure to DPM the NIOSH Analytical Method 5040.
In focusing on the carcinogenic agents found in diesel exhaust and that EC is Based on this new analysis, they
in OC, the commenters seem to have the superior measure of exposure to concluded that ‘‘* * * the MSHA Error
ignored non-cancer health effects DPM. Factor described in the proposed Final
documented in the 2001 risk The 308EC µg/m3 final PEL established Rule is too small to meet the statistical
assessment—e.g., immunological, by this rule is intended to be goals (i.e., ‘95-percent confidence’)
inflammatory, and allergenic responses commensurate with the interim TC limit adopted by the Agency.’’ We disagree.
in healthy human volunteers exposed to of 400 micrograms established under the We have demonstrated the
300DPM µg/m3 (i.e., ≈ 240TC µg/m3) for as 2001 rule—i.e., to be equally protective mathematical fallacies of the
little as one hour (66 FR at 5769–70, and equally feasible as well as the 308 commenters’ position in the 2005 final
5816–17, 5820, 5823, 5837, 5841, 5847). µg/m3 interim EC PEL established by the rule. We show it is plausible to have 32
We discussed this also in our 2005 final 2005 final rule. Although the EC:TC percent of sampling clusters with the
rule (70 FR 32898,32899). ratio can exhibit considerable variability experimental design specified by Cohen,
et al., 2002 with an inherent coefficient commenters failed to address these Approximately one-third of individual
of variation (CV) of 12% and still be issues. errors (without regard to direction)
consistent with the NIOSH accuracy Some commenters presented a new would normally be expected to exceed
criterion. The Monte Carlo analysis we analysis addressing the validity of the the corresponding CV.
performed shows that the commenters’ NIOSH Analytical Method 5040. The This is why we multiply the
data are consistent with NIOSH new Monte Carlo simulation study appropriate CVs used in calculating the
validation criteria even though the results are not persuasive. The error factor (EF) by a ‘‘Confidence
commenters’ collection procedures and commenters’ statement that ‘‘MSHA Coefficient’’ when establishing a 1-
analyses were substandard. employed its Monte Carlo simulation to tailed confidence error factor for
The commenters’ experimental design support the conclusion that their noncompliance determinations along
and results as presented to the 2003 sampling and analytical method was with other sources of uncontrollable
NPRM were critiqued in the 2005 final adequately precise and therefore variability of the measurement system.
rule. No explanation has been provided feasible’’ misrepresents our inferences. Industry commenters also contended
by these commenters as to why the We used a Monte Carlo simulation to that there is no NIST ‘‘standard’’ for
submitted data were restricted to 75EC show that, even with all the defining EC for analysis and
µg/m3 to 200EC µg/m3 and whether uncertainties in the quality of the measurement, thus accurate
additional basket data falling outside of referenced study and conjectures made measurement is not feasible. The
this range were collected. The samples by the commenter, it is possible for National Institute of Standards and
were collected without the submicron those results to have been generated by Technology (NIST) provides two
impactor. The sample results are, a valid analytical method. We generally Standard Reference Materials that
therefore, inappropriate to address this agree with the commenters insofar as define not only EC but also TC. These
rulemaking. The study reference does hypothetically generated data seem to reference materials are well
not indicate the type of filter holder and only obscure the discussion of real- characterized to help determine the
cyclone attachment configuration or if world data that document analytical operating characteristics of NIOSH
precision. Analytic Method 5040 and others. NIST
the mineral-dust-related carbonate that
Industry commenters believed that Standard Reference Material 1649a
occurs in the organic portion of the
our analysis of more than 600 EC (Urban Dust) provides a Certified
analysis was subtracted off the OC
samples (punch-repunch) show that the Concentration Value for TC. NIST
determination. When using a filter
results are neither precise nor provides an Information Concentration
holder with an internal cyclone
reproducible. This issue was addressed Value for the fraction of EC (EC/TC)
connection, the cyclone nozzle acts as
in the preamble to the 2005 final rule. contained in this standard material.
an impactor jet and mineral dust is
We continue to rely on our previous Although components of the material
deposited in the center of the filter. This
analysis of the commenters’ statement. assigned Information Concentration
inferior sampling equipment
The commenters’ analysis of the punch- Values are not as well characterized as
arrangement gives a high level of
repunch data used in the calculation of those with certified Concentration
mineral dust in the center of the filter, the error factors for the PELs is Values, they are valuable sources of
and a non-uniform deposit of material incorrect. We summarize our critique of information used by laboratories to
on the filter surface. A non-uniform the commenters’ analysis here in validate and assure proper operation of
deposit precludes any analysis of response to their new analyses of their analytic methods.
duplicate sample punch repeatability. updated data set. NIST Standard Reference Material
Additionally, three of the seven mines 1. The commenter’s analysis of the 8785 (Air Particulate Matter on Filter
in the referenced study produced either punch-repunch data is now closer to the Media) has been available since July 8,
limestone or trona. Both of these mathematical definition of a Coefficient 2005 and provides the means to
minerals contain carbonates which are of Variation (CV). Their calculation of a compare methods and laboratories for
evolved in the organic portion of the ‘‘difference between punches, to the the measurement of EC. This reference
analysis. The referenced study indicates average of the two punch results’’ material has value-assignments for TC,
that up to 15 mg/m3 of total mineral presents artificially larger variations in EC, and OC measured according to two
dust was present at one of the mines. the analytic method compared with thermal-optical methods: the NIOSH
Failure to remove this mineral dust by those with properly calculated CVs. We and IMPROVE (Interagency Monitoring
use of an impactor may affect the ability point out that the commenters did not of Protected Visual Environments)
of the analytical analysis to discern follow the guidelines specified in protocols. Our laboratory utilizes these
between OC and EC, thus introducing NIOSH validation guidelines. The NIST Standard Reference Materials as
an artificially high variability of results. calculation used by the commenters to part of a comprehensive quality
No information is provided on show large variability is misleading and assurance program.
sampling times or filter loadings (µg/ inconsistent with their own criticisms,
cm2), both of which affect expected and overstates the variation of the Health Implications of Using EC
analytical variability. Commenters NIOSH Analytical Method 5040 Commenters also asserted that EC is
provided no information as to whether instrumentation. not a constituent of diesel exhaust that
multiple punches were used to 2. Although the commenters adjust is suspected of causing lung cancer, and
determine EC concentrations similar to their calculation of the difference the MSHA risk analysis of diesel
what we do in our analyses. Only between punches by the mean of the exhaust is inapplicable to the proposed
summary data, consisting of the EC punches, they fail to make meaningful EC limits. The particulate component of
measurement range, mean, standard statistical inferences of the results. They combustion products produced by a
deviation (SD), and coefficient of simply tabulate instances in which the diesel engine is characterized by the
variation (CV), were provided for each ‘‘% Difference’’ exceeds a specified CV. analytic method as primarily either EC
group of ‘‘four or five’’ samples. No The CV values used for their or OC. The analytic decomposition of
confidence intervals or other measures demonstration thresholds do not DPM defines which components are
of statistical uncertainty were provided represent an upper bound on individual characterized as EC or OC without
for their summary statistics. The deviations or differences. specifically determining the exact
chemical, physical, or carcinogenic We have not obtained additional special extension, a mine operator must
chemicals found in DPM (NIOSH information, either provided in demonstrate infeasibility, which is the
Analytical Method 5040, March 15, comments or from peer-reviewed same test which we use for enforcement
2003). Diesel particulate matter is firmly literature, to change our position that of § 57.5060(d) at mines that don’t have
characterized as a hazardous substance the EC and OC fractions of DPM a special extension. Current § 57.5060(d)
and we do not further characterize DPM contribute to the adverse health effects requires mine operators to install, use,
into hazardous components and non- of miners caused by exposure to DPM and maintain all feasible engineering
hazardous components. The final rule found in diesel exhaust and that EC is and administrative controls to achieve
intends to limit exposures to total DPM the superior measure of exposure to compliance. If we determine that
rather than any single constituent of DPM. reaching the final limit is infeasible for
DPM. The NIOSH Analytical Method technological or economic reasons, and
B. Special Extensions § 57.5060(c)(3)(i)
5040 characterizes compounds found in over-exposed miners are in an
DPM into two classes of substances. In our 2005 final rule addressing the appropriate respiratory protection
These classifications are convenient interim limit, we revised the program, the operator is deemed to be
categories and do not distinguish requirements at § 57.5060(c) regarding in compliance and we will not issue a
hazardous compounds from other special extensions of time in which to citation. We will periodically check to
compounds. As stated by NIOSH (Birch, meet the final DPM limit. We retained determine current DPM exposures and
1996), ‘‘[M]ethods that speciate EC and the requirement in § 57.5060(c)(3)(i), the ability of the mine operator to
OC are considered operational (Cadle however, that the mine operator must implement new control technology.
and Groblicki, 1980) in the sense that specify in the application whether We received no comments objecting
the method itself defines the analyte.’’ diesel-powered equipment was used in to deleting § 57.5060(c)(3)(i).
the mine prior to October 29, 1998. The Commenters supporting the deletion
The assumption that any carcinogenic
purpose of the 2001 restriction was to stated that they saw no reason to limit
effect of DPM is due entirely to the
limit special extensions to underground special extensions to those mine
organic fraction is speculative. This
mines that operated diesel-powered operators who were operating diesel
assumption contradicts findings
equipment prior to October 29, 1998. equipment prior to the arbitrary date of
reported by Ichinose et al. (1997b) and
We chose this date because we released October 29, 1998. They also stated that
does not take into account the
the NPRM to our 2001 final rule on that there would be no reduction in the level
contribution that inflammation and date. We reasoned that some mines in of health protection from a standard that
active oxygen radicals induced by the operation prior to that date could was not feasible, nor with which health
inorganic carbon core of DPM may have experience compliance difficulties risks were never associated. Another
in promoting lung cancers. Indeed, relating to such factors as the basic mine commenter stated that if this restriction
identifying the toxic components of design, use of older equipment with is left in the DPM standard, mines that
DPM, and particulate matter in general, high DPM emissions, etc., and that as a are just starting will not be allowed to
is an important research focus of a result, some of these mines may require file for a special extension. They
variety of government agencies and additional time to attain compliance claimed that in their case, if they were
scientific organizations (see, for with the 2001 final concentration limit. to develop a new mine, they would have
example: Health Effects Institute, 2003; Also, we envisioned that mines opened essentially the same constraints as far as
Environmental Protection Agency, after that date would be using cleaner mine opening dimensions, maximum air
2004b). The 2001 risk assessment engines to help them comply with the volumes, and equipment as their
discusses possible mechanisms of final limit. Furthermore, we stated in existing mines have. Consequently, they
carcinogenesis for which both EC and the 2005 proposal that we had reason to would not necessarily have lower DPM
OC would be relevant factors (66 FR at believe that our 2001 assumptions were levels in a new mine. For this reason,
5811–5822). Multiple routes of incorrect, and that it was unnecessary to they believe that it is critical that we
carcinogenesis may operate in human limit extensions to mines operating allow new mines the same opportunity
lungs—some requiring only the various diesel equipment prior to October 29, to qualify for special extensions after
organic mutagens in DPM and others 1998. taking all reasonable steps to reduce
involving induction of free radicals by We believe the consequence of such a DPM emissions.
the EC core, either alone or in conclusion does not compromise the Other commenters agreed that we
combination with the organics (70 FR level of health protection afforded under should delete § 57.5060(c)(3)(i) from the
32898). the existing prohibition. This is because existing DPM standard, but provided no
The implication of non-organic it is optional as to whether a mine information as to whether elimination of
chemicals in a chemical pathway operator applies for a special extension this requirement would result in a
explaining the induction of lung under current § 57.5060(c). Special reduction in the current level of health
carcinogenesis indicates that organic extensions involve considerable protection afforded to miners.
and inorganic chemical compounds, paperwork for mine operators, but they We also received numerous comments
acting together, contribute to the result in a document that a mine recommending that we make other
toxicity of DPM. Identification of a operator can rely on for a period of one changes to the special extension
single carcinogenic component of DPM year (renewable) to demonstrate to our provisions. These commenters
(whether EC, OC, or some combination inspectors that we have determined that suggested that the final rule include:
of chemicals in DPM) is not germane to it is infeasible for that particular mine Comprehensive criteria for granting a
the issue of whether DPM actually operator to achieve compliance with the special extension; specific language to
causes adverse health effects as final limit using engineering and expand the application of an extension
established by the 2001 risk assessment administrative controls. If affected to the entire mine or to portion(s) of a
and its updates. This rule reduces the miners are included in a respiratory mine; additional procedures for the
adverse health risks associated with protection program which meets the District Manager to consider in making
miners’ exposure to DPM and not just requirements of § 57.5060(d), the mine a determination of whether to grant a
those associated with the EC or OC operator is in compliance and no special extension; requirements that the
fractions of DPM. citation will be issued. To qualify for a District Manager include reasons for any
denial of a special extension; and, to determine the miner’s ability to use a compensation for such work at no less than
procedures allowing appeal of the respirator before the miner is fit tested or the regular rate of pay for miners in the
District Manager’s determination to the required to use the respirator to work at the classification such miner held immediately
mine. prior to his transfer. In the event of the
Administrator, and ultimately, to the transfer of a miner pursuant to the preceding
(4) Upon notification from the medical
independent Federal Mine Safety and professional that a miner’s medical sentence, increases in wages of the
Health Review Commission. examination shows evidence that the miner transferred miner shall be based upon the
In the 2005 proposed rule, we is unable to wear a respirator, the miner must new work classification.
informed the public that the scope of be transferred to work in an existing position Existing § 57.5060(d) requires that
revision to § 57.5060(c) was limited to in an area of the same mine where respiratory
mine operators comply with the
the removal of paragraph (c)(3)(i). protection is not required.
(i) The miner must continue to receive respiratory protection requirements
Accordingly, such changes would be
compensation at no less than the regular rate under § 57.5005(a) and (b) (control of
beyond the scope of this rulemaking.
of pay in the classification held by that miner exposure to airborne contaminants) of
Consequently, the final rule does not
reflect consideration of the above stated immediately prior to the transfer. our air quality standards for M/NM
(ii) The miner must receive wage increases underground mines. Sections
issues. We note that we made based upon the new work classification.
comprehensive revisions to § 57.5060(c) 57.5060(d)(1) and (d)(2) designate
in the 2005 final rule. We also requested comments in the acceptable respirator filters under the
Some other commenters discussed preamble to the proposed rule on standard. Section 57.5005(a) requires
how the special extension procedures whether a transfer provision in the final that respirators be furnished and miners
enhance feasibility and that the courts rule should include issues of use the protective equipment in
have recognized that such procedures notification to the District Manager of accordance with training and
can resolve individual problems with the health professional’s evaluation and instruction. Currently, we do not require
feasibility. The commenter refers us to the fact that a miner will be transferred; mine operators to provide miners with
the United Steelworkers of America v. the appropriate time frame within medical evaluation before they wear a
Marshall, 647 F. 2d 1189, 1266 (1980). which the transfer must be made; respirator and transfer protection in the
We address this comment under our whether a record of the medical event that they cannot wear one.
discussions on feasibility. evaluation conducted for each miner Existing § 57.5005(b) for control of
Based on the comments received should be maintained along with the miners’ exposures to airborne
supporting the deletion of correct retention period; medical contaminants requires that mine
§ 57.5060(c)(3)(i), and our discussions confidentiality; and any other relevant operators establish a respiratory
above, we have deleted this provision issues such as costs to mine operators protection program consistent with the
from the DPM standard. For the forgoing for implementing a rule requiring (ANSI Z88.2–1969) ‘‘American National
reasons, we do not believe that deletion medical evaluations and transfer of Standard for Respiratory Protection
of this provision reduces miners’ miners. Our current DPM requirements —‘‘ANSI Z88.2–1969, ‘‘American
current level of health protection, and for respiratory protection at § 57.5060(d) National Standards Practices for
there were no comments submitted to do not include requirements for medical Respiratory Protection.’’ The final rule,
the contrary. evaluation of miners before they are however, adopts our approach taken in
required to work in an area where the proposed preamble
C. Medical Evaluation and Transfer recommendations along with additional
§ 57.5060(d) respiratory protection must be worn, or
transfer of miners who are medically requirements which we deem necessary
In the preamble to the 2005 NPRM, unable to wear respirators. to protect miners. These additional
we requested comments from the Section 101(a)(7) of the Mine Act requirements address issues related to
mining community on whether we authorizes medical evaluation and medical confidentiality, evaluation of a
should include in the final rule a transfer protection for miners, and miner’s ability to wear a PAPR,
provision requiring a medical states, in pertinent part: reevaluation of miners, and
evaluation to determine a miner’s ability recordkeeping requirements, along with
Where appropriate, such mandatory
to use a respirator before the miner is fit standard shall also prescribe suitable other revisions to clarify our intent
tested or required to work in an area of protective equipment and control or under the standard.
the mine where respiratory protection technological procedures to be used in We believe that there is adequate
must be used. In addition, we asked for connection with such hazards and shall evidence in the rulemaking record
comments on whether the final rule provide for monitoring or measuring miner establishing the need for medical
should contain a requirement for exposure at such locations and intervals, and evaluation of miners. We incorporated
transfer of a miner to an area of the mine in such manner so as to assure the maximum into the DPM rulemaking record the
where respiratory protection is not protection of miners. In addition, where Occupational Safety and Health
required if a medical professional has appropriate, any such mandatory standard Administration’s (OSHA) data from its
shall prescribe the type and frequency of
determined as a result of the medical rulemaking record supporting its
medical examinations or other tests which
evaluation that the miner is unable to shall be made available, by the operator at his generic respiratory protection standard
wear a respirator for medical reasons. cost, to miners exposed to such hazards in at 29 CFR 1910.134 related to the health
Further, we asked whether we should order to most effectively determine whether risk to persons from using respirators
amend the existing respiratory the health of such miners is adversely with certain medical conditions. Based
protection requirement at § 57.5060(d) affected by such exposure. Where on their data, OSHA concluded, and
by adding new paragraphs (d)(3) and appropriate, the mandatory standard shall MSHA agrees, that use of a respirator
(d)(4) to address medical evaluation and provide that where a determination is made may place a physiological burden on a
that a miner may suffer material impairment
transfer rights for miners. We worker while wearing such a device.

particularly wanted to know if the final of health or functional capacity by reason of
exposure to the hazard covered by such
Depending on the medical condition of
rule should include the following the person, this burden could result in
mandatory standard, that miner shall be
language: removed from such exposure and reassigned. illness, injury, and in some instances,
(3) The mine operator must provide a Any miner transferred as a result of such even death. OSHA also concludes that
medical evaluation, at no cost to the miner, exposure shall continue to receive common health problems can cause
difficulty in breathing while a person is miner is unable to wear a negative- task requiring a significantly greater
wearing a respirator. Most healthy pressure respirator, the mine operator degree of physical exertion, or the miner
persons, however, will not have must make certain that the PLHCP also is assigned to work at a lower level of
physiological problems wearing determines the miner’s ability to wear a a deep mine that is hotter and imposes
properly chosen and fitted respirators. PAPR. If the PLHCP finds that the miner greater physiological stress. We expect
The final rule amends the existing can wear a PAPR, the mine operator the mine operator to exercise sound
DPM respiratory protection standard at must provide the PAPR and require the judgment when deciding whether the
§ 57.5060(d) by adding requirements for miner to wear it. miner must be reevaluated by a PLHCP.
mine operators to provide, at no cost to The miner must be evaluated by a Section 57.5060(d)(7) requires that
the miner, a confidential medical PLHCP prior to the miner wearing the upon written notification that the
evaluation by a physician or other respirator for any duration or frequency PLHCP has determined that the miner is
licensed health care professional of respirator use, including prior to fit unable to wear a respirator (including a
(PLHCP) to determine the miner’s testing of the respirator. This is because PAPR), the miner must be transferred
ability to use a respirator before the we intend that a miner not be assigned within 30 days of the PLHCP’s
miner is fit tested or required to work to tasks in the mine that require use of determination to work in an existing
in an area of the mine where respiratory a respirator unless a PLHCP makes a position in an area of the same mine
protection must be used. When these written determination that the miner is where respiratory protection is not
conditions occur the miner must be physically able to perform the work to required. Congress specifically included
reevaluated to determine the miner’s which the miner is assigned while using in Section 101(a)(7) of the Mine Act that
ability to use the respirator. the respirator. For enforcement when transfer of a miner is required
Also included in the final rule is the purposes, we will use the results of the under this section that their
right of miners to discuss their medical most recent written determination of the compensation must be as we
evaluations with the PLHCP before the PLHCP to assess compliance with this specifically stated in this final rule. As
PLHCP submits to the mine operator a provision. Whereas we have chosen not a result, the miner must continue to
copy of the PLHCP’s medical to include a specific protocol for how receive compensation at no less than the
determination. The mine operator must evaluations must be conducted, we regular rate of pay in the classification
have a written record of the most recent expect the PLHCP to conduct an held by that miner immediately prior to
medical evaluation to confirm that the evaluation based on the individual the transfer. However, wage increases of
miner was evaluated. We believe that miner’s medical information. the transferred miner must be based on
the final rule includes a practical As part of the PLHCP’s determination, the new work classification.
approach for requiring medical § 57.5060(d)(4) requires that the mine Under § 57.5060(d)(8) of the final rule,
evaluations that lessens the compliance operator provide the miner with an the mine operator must maintain a
burden on mine operators without opportunity to discuss their evaluation record of the identity of the PLHCP and
compromising miners’ health. results with the PLHCP before the the most recent written determination of
In addition, the final rule includes PLHCP submits the written each miner’s ability to wear a respirator
requirements for transferring a miner to determination to the mine operator. If for the duration of the miner’s
an existing job in an area of the mine the miner disagrees with the employment plus six months thereafter.
where respiratory protection is not determination of the PLHCP, the miner In response to our 2005 NPRM, we
required if a PLHCP has determined that has up to 30 days to submit to the received numerous comments on issues
the miner’s medical condition precludes PLHCP additional evidence of their related to medical evaluation of
the miner from safely wearing any medical condition. Depending upon the respirator wearers and transfer of miners
required respirator, including a powered miner’s medical history, it may be medically unable to wear respirators.
air-purifying respirator (PAPR). The critical for the miner to discuss any We requested comments in the 2005
details of this requirement are discussed discrepancies or errors in a PLHCP’s NPRM regarding whether we should
below in this preamble. We believe that determination. The miner, however, amend existing § 57.5060(d) addressing
compliance with the final rule will may at any time provide additional respiratory protection requirements by
enhance miner protection. medical information to the mine adding regulatory language to provide
Section 57.5060(d)(3) of the final rule operator if the miner believes that it miners medical evaluations and transfer
requires that the mine operator provide may impact the miner’s ability to wear rights pursuant to Section 101(a)(7) of
a confidential medical evaluation by a a respirator. the Mine Act. One mine operator
PLHCP to determine the miner’s ability Section 57.5060(d)(5) requires the commented that they still face
to use a respirator before the miner is mine operator to obtain a written significant challenges to compliance
required to be fit tested or to use a determination from the PLHCP with the interim limit. They currently
respirator at the mine. The mine regarding the miner’s ability to wear a require miners to wear respirators when
operator must provide the medical respirator. The mine operator must performing certain tasks that have been
evaluation to the miner and pay the cost make certain that the PLHCP provides a a significant source of DPM exposure.
of each of the miner’s medical copy of the determination to the miner. Based on their own samples, they
evaluations. Mine operators must make Though the rule does not specify a believe that the use of respiratory
certain that the PLHCP administers the timeframe in which the mine operator protection would increase under the
testing in a manner that protects the must have the PLHCP provide a copy to final limit and be required of all miners
confidentiality of the miner being the miner of his or her medical through the entire shift. They also stated
evaluated. determination, we intend for the mine their concern for the burden this would
If the PLHCP determines that the operator to exercise diligence in getting place on affected miners and noted that
miner is able to wear a negative- this important information to the miner. mandatory respirator usage for the
pressure respirator, the mine operator Section 57.5060(d)(6) requires the entire shift would compromise miners’
must provide it and require the miner to mine operator to reevaluate the miner acceptance of the rule and their ability
wear it under our existing respiratory when the operator has reason to believe to safely remain productive. Further,
protection requirements. On the other that conditions have changed such as they believe that most companies that
hand, if the PLHCP concludes that the when the miner is assigned to a new have a formal respiratory protection
program are currently conducting we incorporate that evidence into this referred to a Pulmonologist for further
medical evaluation in the program, and record as well. We have incorporated evaluation.
consequently, should not have to these data into the DPM rulemaking In our evaluation of World Trade Center
perform medical evaluation ‘‘solely to record. As stated earlier, OSHA Rescue workers, we have found similar
discrepancies between the questionnaire and
comply with the rule.’’ Some other mine acknowledges within its current spirometry.
operators commented that they perform standards addressing respiratory A report by S. Levine et al. (MMWR Sept.
medical evaluations of a miner’s ability protection at 29 CFR 1910.134(e) that 10, 2004) notes that 33% [sic] had abnormal
to wear a respirator during pre- use of a respirator may place a spirometry but wheeze was [sic] only
employment examination, and annually physiological burden on workers while reported in 0.9%. (David Parkinson, MD,
thereafter for workers who must wear using them. At a minimum, OSHA United Steelworkers Consultant,
respirators, but did not believe it was requires employers to provide medical Occupational Physician)
necessary to require medical evaluations evaluations before an employee is fit The final rule does not include a
through regulation. tested or required to use respiratory protocol to guide the PLHCP on how to
Although some mine operators are protection. Employers are required to conduct medical evaluations as the
already conducting medical evaluations have a physician or other licensed OSHA standard does, but places the
before fit testing and requiring miners to health care professional have the worker responsibility on the mine operator to
wear respirators, not all underground complete a questionnaire, or in the provide an appropriate medical
M/NM mine operators using diesel alternative, conduct an initial medical evaluation by a PLHCP to determine the
powered equipment are conducting examination in order to make the miner’s ability to use a respirator before
voluntary medical evaluations. We determination. If the worker has a the miner is required to be fit tested or
believe that the data establishing the positive response to certain specified to use a respirator at the mine.
need for the evaluations support a questions, the employer must provide a We intend that a ‘‘physician or other
uniform approach for requiring follow-up medical examination. The licensed health care professional
reevaluations. questionnaire is contained in the body (PLHCP)’’ be a physician, physician’s
We agree with the commenters who of the OSHA rule. The preamble to the assistant, nurse, emergency medical
acknowledged that existing voluntary OSHA final rule states: technician or other person qualified to
medical evaluations currently provided
Specific medical conditions can provide medical or occupational health
by some mine operators do not establish
compromise an employee’s ability to tolerate services, as we have defined a ‘‘health
uniform protection for all miners
the physiological burdens imposed by professional’’ under our Hazard
covered under the DPM standard. These respirator use, thereby placing the employee Communication standards at 30 CFR
commenters also stated that simply at increased risk of illness, injury, and even 47.11. We will accept the license as
because some mine operators have death (Exs. 64–363, 64–427). These medical
provided miners this protection does proof of qualification to perform the
conditions include cardiovascular and
not justify why others should continue respiratory diseases (e.g., a history of high medical evaluation. We specified that
to be denied them. These commenters blood pressure, angina, heart attack, cardiac the health care worker be licensed to
support the need for including medical arrhythmias, stroke, asthma, chronic ensure an acceptable level of
evaluation in the final rule and stated bronchitis, emphysema), reduced pulmonary competency, but have not specified
function caused by other factors (e.g., which states’ licensing to accept. As we
that voluntary medical evaluation smoking or prior exposure to respiratory
programs in the industry show that said in our preamble to the final rule (64
hazards), neurological or musculoskeletal FR 49578) on Health Standards for
mine operators, acting in good faith, can disorders (e.g., ringing in the ears, epilepsy,
easily implement a respirator program, lower back pain), and impaired sensory Occupational Noise Exposure at 30 CFR
including transfer rights, without function (e.g., a perforated ear drum, reduced Part 62, ‘‘* * * although some state
practical or financial difficulty. olfactory function). Psychological conditions, licensing requirements are more
One commenter recommended that such as claustrophobia, can also impair the stringent than others, even the least
we defer requiring medical evaluation effective use of respirators by employees and rigorous of the state requirements will
may also cause independent of physiological provide an acceptable level of
and transfer until we are able to burdens, significant elevations in heart rate,
establish an accurate database on the competence * * * [for audiologists].’’
blood pressure, and respiratory rate that can
number of miners projected to be NIOSH commented that in other
jeopardize the health of employees who are
affected. Our 2005 NPRM preliminary at high risk for cardiopulmonary disease (Ex. industries where respirators were used,
estimates of the number of miners that 22–14). One commenter (Ex. 54–429) they supported the requirements
may be affected resulted from the emphasized the importance of evaluating specified in the OSHA Respiratory
available data in the rulemaking record claustrophobia and severe anxiety, noting Protection Standard (29 CFR 1910.134),
at the time of the proposal. We have that these conditions are often detected with the exception of:
during respirator training. [See 63 FR 1152,
since received comments from several (a) The use of irritant smoke for qualitative
01/08/1998]
mine operators who included their Organized labor also stated: respirator fit testing, and (b) unsupervised
current costs for medical evaluations medical evaluations conducted by health
* * * In all of our certification programs care professionals who are not licensed for
and the number of miners affected. We we have included blood pressure and
used this information in assessing our independent practice to perform or supervise
spirometry measurements. In respirator medical evaluations.
cost analysis for the Regulatory certification for a group of electrical workers,
Economic Analysis (REA) supporting we identified 7.5% who had abnormal We also received comments from
this final rule. spirometry and were not given a respiratory mine operators who stated that they
Several other commenters voiced certificate until they had received further already conduct medical evaluations, or
concern over worker acceptance of medical evaluation and a repeat of the at the very least, pulmonary function
spirometry.
respirators in general, but believed that tests, during pre-employment

This observation was [sic] supported in a
medical evaluations were a good idea. study of nurses working in a hospital close
examinations. From the mine operators
Organized labor stated that there is to the World Trade Center at the time of the who commented on their frequency of
substantial evidence in the record of the disaster. Although exhibiting no respiratory these examinations, several commenters
relevant OSHA hearings to support symptoms on their questionnaires, 10 of 110 stated that they test annually, another
medical evaluations, and requested that nurses had abnormal spirograms and were tests every three years, while another
performs them bi-annually. Others that PAPRs have some of the same [workers] could not go to work because
noted that the tests were initially limitations as negative-pressure of their lung problems over the years.’’
performed during pre-employment respirators in that both impede They also stated that they had not found
examinations, and thereafter, were communication, hearing, vision, and any workers unable to wear an air-
conducted whenever a miner was about require periodic replacement of the supplying respirator or powered air-
to be required to wear a respirator. One purifying elements, as well as other purifying respirator, as long as they
commenter that provides a medical disadvantages. NIOSH further stated: were clean-shaven. We agree with these
exam upon employment and annually * * * In addition, the battery must be commenters that few miners will be
thereafter stated: recharged on a daily basis so that the blower unable to wear a PAPR while
If the miners health conditions change will deliver enough respirable air to the performing their tasks in a mine.
preventing the safe use of a respirator, then respiratory inlet covering. Batteries have a In the event that a miner is medically
additional tests can be provided including limited useful life and cannot be recharged unable to wear a negative-pressure
spirometry and if indicated, a medical indefinitely. The blower’s high speed motor respirator, § 57.5060(d)(3) requires the
examination. We have not had a case where can wear out and require replacement; if the mine operator to make certain that a
a miner’s health changed preventing the blower fails in a loose-fitting PAPR, the PLHCP evaluates the miner’s ability to
wearing of a respirator, that the miner was wearer will be without respiratory protection. use a PAPR, such as those that are
not aware of the health condition. We do not Other disadvantages include the weight and integrated into a hard hat. Although a
object to annual spirometry testing following bulk of the PAPR with its blower and battery,
which can hinder movement; complex
determination needs to be made that the
guidelines developed and supervised by a miner is medically able to wear a PAPR,
medical doctor or other medical professional. design; and the need for a higher level of
maintenance than a negative pressure it is likely that most miners could wear
We do object to the added expense of
requiring a medical exam every year if there respirator. a PAPR. We believe that such
are no indicators of a medical necessity, respirators are an effective option for
NIOSH also commented, however, persons who cannot wear a negative-
either by the miners own request or the that under normal use, PAPRs do not
conditions mentioned. pressure respirator and, in most
impose the resistance to breathing that instances, will negate the need to
The final rule requires that miners be is associated with negative-pressure transfer the miner.
reevaluated when the mine operator has respirators and that for a miner who has One commenter suggested that mine
reason to believe that conditions have a medical condition placing the miner at operators be required to provide PAPRs
changed which could adversely affect risk from using a negative-pressure to miners who are medically unable to
the miner’s ability to wear the respirator, use of a PAPR is a potential wear a negative-pressure respirator, and
respirator. We believe that the final rule alternative to transfer of duties. not be required to transfer the miner to
provision is more appropriate and cost Another commenter stated that another position at equal pay unless the
effective than a restrictive schedule of anybody who is working underground miner was unable to wear either a
frequency of reevaluation to detect or at their operations is provided a negative-or positive-pressure respirator.
confirm the miner’s ability to safely pulmonary function check to make sure Most commenters favored leaving the
wear respiratory protection. We do not that they are capable of wearing a choice to the mine operator. NIOSH
envision, in most instances, that miners respirator. That commenter was not suggested transfer be reserved for those
will be in a respiratory protection aware of anyone being found unable to who could not use either a negative-
program for an extended length of time. do so. Several industry commenters pressure respirator or a PAPR. Final
We recognize, however, that more stated that they performed medical § 57.5060(d)(7) requires transfer of
miners may have to wear respirators evaluations for testing the ability of miners when the PLHCP determines
when the PEL is reduced to 160TC mg/ miners to wear a negative-pressure that the miner cannot wear a respirator,
m3. We received no comments in respirator during pre-employment and including a PAPR. If the PLHCP finds
support of establishing the need for a annually thereafter. One commenter that the miner cannot wear a negative-
specific frequency, but we did receive noted that although they had found a pressure respirator, the mine operator
several comments opposing them. Also, few miners who were unable to wear must make certain that the PLHCP tests
a miner should alert the mine operator negative-pressure respirators initially, the miner’s ability to wear a PAPR.
whenever the miner experiences each of them responded to medical Pursuant to existing § 57.5060(d), if the
changes in his or her health that could treatment and subsequently was found mine operator can wear a PAPR, the
impact his or her ability to safely wear medically able to wear a negative- mine operator has an obligation to
a respirator. Mine operators have the pressure respirator. provide it and require the miner to wear
responsibility for conducting a Another commenter specified that it.
reevaluation where a change in they have pulmonary function tests One commenter stated that as the
workplace conditions may result in a performed on anyone entering a DPM standard becomes more stringent
substantial increase in the physiological respiratory protection program (about 10 and respirator usage increases, the
burden that respirator use places on the miners), and had no one who was medical evaluation would need to be
miner. For example, a change in the determined to be unable to wear a adapted to evaluate the miner’s ability
miner’s work task may require greater negative-pressure respirator. While a to wear the respirator for the full shift
physical exertion or a change in the commenter, on behalf of organized during high workload duties. The
work environment could increase the labor, stated that only a few miners commenter believes this would increase
stress on the miner. would be unable to wear a negative- the number of miners that are unable to
A mine operator stated that the use of pressure respirator, most of these miners successfully pass the medical
PAPRs was not practical in most mining would be able to wear a PAPR. A evaluation, increasing the need for
applications. They believe that the need medical testing company that provides transfer or termination. Although we
for battery charging stations for the pulmonary function and respiratory fits, agree that the number of miners
PAPRs, storage facilities and primarily for compliance with OSHA required to use respirators would
maintenance would significantly regulations testified that, in their increase as the DPM final limit is
increase the cost of a respiratory experience, ‘‘with maybe a hundred lowered, we do not believe that it would
protection program. NIOSH commented workers, anywhere from three to five result in any significant increase in the
number of transfers, because most surface might be available. The final a respirator without a medical
miners could wear a PAPR if they standard does not prohibit mine evaluation puts that worker’s life at risk,
cannot wear a negative pressure operators from transferring a miner to an we have an obligation to protect miners
respirator. existing job on the surface of the same from such harm. We agree that medical
Most commenters stated that in the mine. Mine operators, however, must evaluation and transfer requirements are
event that we require medical transfer of make certain that they comply with the a necessary component to the existing
a miner, they opposed creating a job for compensation requirements in DPM respiratory protection program,
the transferred miner. They strongly § 57.5060(d)(7)(i) and (ii). Moreover, and we have included this protection in
believe that transfer rights should be they must make certain that the new the final rule for improving miners’
limited to those circumstances where a miner is not overexposed to DPM on the health.
position is available where respiratory new job and is not required to use In our preamble to the 2005 final rule,
protection is not required, and the respiratory protection, until such time we stated our belief that a requirement
miner is qualified for that position. that a subsequent medical evaluation by for medical evaluation of respirator
Several of these commenters stated that a PLHCP determines that the miner is wearers and transfer of miners unable to
not giving consideration to miners’ able to use the respirator. wear respirators was inappropriate for
skills or qualifications could result in a One mine operator stated that most of that rulemaking (70 FR 32957). At that
miner being transferred into a position their underground miners would be time, we believed that these
where they are unqualified to perform required to wear respirators, and as a requirements would have minimal
the work. As a result, this could create consequence, the availability of application, particularly considering the
a threat to the safety of the transferred alternative positions would be extent to which mine operators were
miner as well as to other miners. extremely limited. The commenter voluntarily implementing such
We concluded in final § 57.5060(d)(7) stated that the rate of pay should not be provisions and the limited long term use
that the miner must be transferred to an tied to the position held by the worker of respirators envisioned under the
existing job in an area of the same mine prior to the transfer but should be based interim rule. We are now persuaded that
where respiratory protection is not on the new position because wage scales under the final limit, this is no longer
required. We believe that the for underground workers are typically the case.
rulemaking record is insufficient to higher than for comparable above Notwithstanding the continuation of
establish justification for requiring mine ground positions. Several other some voluntary use of these programs in
operators to create jobs for transferred commenters also wanted the wage rate the mining industry, we are concerned
miners. The mine operator is in the best for a transferred miner to be based on that more miners may be required to
position to determine if a miner is the new position. Again, we emphasize wear respirators for longer periods of
qualified to perform the job to which the that the final rule adopts our statutory time as the final limit is lowered, and
miner is transferred based upon the mandate articulated in the Mine Act therefore, medical evaluation and
tasks involved. We would, however, regarding compensation of transferred transfer should not remain an elective.
expect the mine operator to provide miners. Under § 57.5060(d)(7)(i), If, however, we fail to include transfer
necessary task training under our transferred miners are to receive ‘‘no rights for miners unable to wear
existing standards at 30 CFR part 48. less’’ than the regular rate of pay that respiratory protection, the effect may be
Several small mine operators were they received in the job classification worse than not requiring a medical
particularly concerned with the that they were in immediately before the evaluation at all. The mine operator,
difficulty of moving people to different transfer. Under § 57.5060(d)(7)(ii), mine acting on false information given by the
positions within their small workforce. operators must base increases in wages miner to protect his or her job, is then
One operator said they often do cross- of transferred miners on the new work in the position of assigning a respirator
training, but that their labor market was classification. to a miner who cannot safely wear it.
limited and it was becoming more We received several comments The best course of action for miner’s
difficult to find people willing to work regarding an appropriate regulatory health is to remove the fear of reprisals
underground. Our primary objective response to when a miner cannot meet to the degree necessary to allow the
under this standard is to prevent miners the requirements of wearing a respirator miner to truthfully and fully participate
from being required to use a respirator while performing their duties, and there in a medical evaluation.
before the miner is determined to be is no available work that the restricted We realize that particularly at a small
medically able to wear the respirator. miner is qualified to perform. Some mine, an alternative position may not
Section 101(a)(7) of the Mine Act, and commenters suggested that the miner exist. Under this circumstance, we
the data confirming the potential health should be considered medically unfit believe that the mine operator is best
consequences of using a respirator with for duty and terminated subject to their suited to determine how to
certain illnesses and other medical company policies, collective bargaining accommodate that miner based on
conditions, lead us to disagree with agreements, and State or Federal laws. existing employment rights pursuant to
these commenters. One commenter stated that they did not collective bargaining agreements, and
Several mine operators commented have transfer rights in their contracts, state and federal laws, etc. The final
that available positions were limited for but had been assured that if the rule, however, prohibits a mine operator
transferred miners due to terms of labor circumstance arose, their human from allowing a miner to voluntarily
contracts. One mine operator with resources department would see work in an area where respiratory
several properties said it might be whether the miner could be moved to an protection is required without a
difficult to find an available job at their available job. In response, the final rule respirator and when the miner is
mine having about 25 employees, but does not require mine operators to medically unable to wear a respirator.
that they would consider offering a create a job for miners who need to be We received one comment objecting
position at one of their other properties transferred. to notification to the District Manager of
if a position was available there. Organized labor stated its strong the health professional’s evaluation and
Another mine operator said that they support for medical evaluation and the fact that a miner will be transferred.
might not be able to find a job transfer. They believe that since a mine We have not included notification
underground, but that one on the operator who assigns a miner to work in requirements in the final rule due to our
objective to limit the paperwork burden implementing a rule requiring medical As discussed in detail under section
on mine operators, and due to the fact evaluations and transfer of miners. VIII.C. Medical Evaluation and Transfer,
that our inspectors have access to mine One mine commented that they have we have determined that medical
operators’ records and can determine a formal medical evaluation conducted evaluation and transfer requirements are
that miners have been transferred. prior to being fit tested and annually a necessary component to the existing
NIOSH recommended that mine thereafter. Their average cost for an DPM respiratory protection program,
operators be required to maintain evaluation to be able to wear a negative- and have included this requirement for
records of miners’ medical evaluations, pressure respirator was $250 per miner. improving miners’ health in the final
respirator use, and transfers required They also estimated that the cost for rule. Thus, we are amending the
under this rule and that the records be them to provide a PAPR for miners existing DPM respiratory protection
kept confidential and in a secure unable to wear a negative-pressure standard at § 57.5060(d) by adding a
location. The final rule requires mine respirator would be approximately provision requiring a medical
operators to keep a record of the identity $700. One large gold mine commented evaluation to determine a miner’s ability
of the PLHCP and the most recent that they believed approximately 70% to use a respirator before the miner is fit
written determination of each miner’s (480) of their 686 underground tested or required to work in an area of
ability to wear a respirator for the personnel would require respiratory the mine where respiratory protection
duration of the miner’s employment protection in meeting the final 160 TC must be used.
plus six months. It is important that we limit.
note that our compliance specialists The final rule also includes
Another commenter said they have requirements for transferring a miner to
have access to these records pursuant to onsite technicians who are certified to
Section 103(h) of the Mine Act, and an existing job in an area of the mine
conduct these tests (medical where respiratory protection is not
operators must make these records evaluation), however, the analysis of the
available to the authorized required if a PLHCP has determined that
pulmonary function tests is provided by the miner’s medical condition precludes
representatives of the Secretary of a licensed healthcare provider. Their
Labor. the miner from safely wearing any type
cost for the pulmonary function tests is of respirator, including a PAPR.
NIOSH recommended that the
roughly $17.00 per individual. Another
timeframe for transfer be as rapid as Under paragraph (d)(8) the mine
company estimated that the average cost
possible if a miner is experiencing acute operator must maintain a record of the
per person for medical evaluations is
health effects from exposure. The final identity of the PLHCP and the most
$660. The range for costs varied widely
rule requires the mine operator to recent written determination of each
transfer the affected miner within 30 depending on the types of tests
performed and whether the cost of the miner’s ability to wear a respirator for
days of the final determination by the the duration of the miner’s employment
PLHCP that the miner is unable to wear respirator itself was included. We have
considered these new data in our REA plus six months. We consider this
a respirator. We anticipate most document to be a medical record and
overexposures to be chronic rather than in support of the final rule and have
revised our costs estimates. our retention requirements are
acute, and therefore, have given greater consistent with other medical records
latitude in the time for compliance. As explained in section IX.A. of this
preamble, a total of 680 miners will that we require mine operators to
A number of commenters stated that
require a medical evaluation in the first maintain, such as those specified in our
where miners’ exposures cannot be
year after the rule takes effect to meet existing Hearing Conservation Program
reduced below the applicable final
the 350TC µg/m3 limit. An additional requirements in 30 CFR 62.171. By
limit, the standard should provide that
244 miners will require a medical requiring the operator to retain a copy
the mine operator may assign other
evaluation when the 160TC µg/m3 takes of these documents, it will help protect
miners who must wear respiratory
effect. The estimated yearly medical miner’s health and assist with
protection to work in the affected area
evaluation and transfer costs to mine compliance with § 57.5060(d). This new
to reduce the amount of time that any
given miner must wear respiratory operators to meet the requirements of recordkeeping requirement will be
protection. We do not agree. Allowing the final rule are $69,170. incorporated into existing Table
this practice fails to eliminate the 57.5075(a)—Diesel Particulate
D. Diesel Particulate Records Recordkeeping Requirements.
hazard of DPM exposure and results in § 57.5075(a)
placing more miners at risk. We do IX. Regulatory Costs
believe that a two-year phase-in The recordkeeping requirements of
approach of the final limit of 160TC µg/ the DPM standards contained in Section IX.A discusses the costs
m3 will resolve many of the existing §§ 57.5060 through 57.5071 are listed in attributable to this final rule. These
feasibility issues as discussed in the a table entitled ‘‘Table 57.5075(a)— costs arise from new provisions for
feasibility section of this preamble. Diesel Particulate Matter Recordkeeping medical evaluation and transfer. Section
Although the number of miners required Requirements.’’ The table lists the IX.B discusses the costs of
to wear respirators is likely to increase records the operator must maintain implementing the 160TC µg/m3 final
initially under the 160TC µg/m3 final pursuant to §§ 57.5060 through 57.5071, limit, given that the existing 308EC µg/
limit, with the use of biodiesel and and the retention period for these m3 interim limit is in effect. The move
other available DPM controls, we project records. from the existing higher limit to the
that the number of miners in respiratory The final rule also makes a confirming lower final limit results from a series of
protection should decrease over time. change to the Table in § 57.5075(a) final rules, including both this final rule
In the 2005 NPRM, we estimated that which includes a record of the identity and two prior rules. Other than the costs
medical evaluation and transfer of the physician or other licensed health for medical evaluation and transfer
requirements would affect about 50 care professional (PLHCP) and the most (estimated in Section IX.A and reported
miners annually for evaluation, about 3 recent written determination of each in Section IX.B), the costs presented in
miners annually for transfer, and cost miner’s ability to wear a respirator for Section IX.B are not attributable to this
about $40,000 annually. We asked for the duration of the miner’s employment final rule. All costs are reported in 2004
comments on costs to mine operators for plus six months. dollars.
A. Costs of Medical Evaluation and To estimate the cost of these medical after the first year, approximately 0.84
Transfer evaluation and transfer provisions, for additional miners per mine will require
the 308EC µg/m3, 350TC µg/m3, and a medical evaluation in mines with 20–
The medical evaluation and transfer 160TC µg/m3 limits, MSHA made the 500 employees. In each year after the
provisions would require the mine following assumptions: first year, approximately 2.1 additional
operator to provide a medical evaluation In each year that medical evaluations miners per mine will require a medical
by a physician or other licensed health are required for a mine, it would take a evaluation in mines with 20–500
care professional (PLHCP) to each miner mine health and safety specialist, employees.7
required to wear a respirator. MSHA earning $52.31 per hour, 1 hour to In ten percent of the cases, the PLHCP
will accept a prior medical evaluation to prepare information for the PLHCP.3 will determine that additional tests are
the extent the mine operator has a The cost of a medical evaluation is needed for the miner’s medical
written record and there have not been $50. This medical evaluation consists of evaluation. These additional tests may
any changes that will adversely affect a medical questionnaire or interview include X-rays and cardio-pulmonary
the miner’s ability to wear a respirator. with the PLHCP and a simple tests. The cost of the additional tests is
For those miners who do not have an pulmonary function test. $250.
existing medical evaluation, we expect Four miners per mine in mines with Five percent of the miners required to
that the mine operator would need to fewer than 20 employees will need to wear a respirator will need a PAPR. A
provide the PLHCP with information, use respirators and therefore require a PAPR costs approximately $1,000 and
including the types and weights of the medical evaluation in the first year that has a useful life of about 5 years.
respirator that the miner will use, the respirators are required for mines that At any point in time, approximately
duration and frequency of respirator need them.4 Twelve miners per mine in 1⁄2% of the number of miners using
use, the expected physical work effort, mines with 20–500 employees will need respirators will need to be transferred.
additional protective clothing and to use respirators and therefore require The total is expected to be fewer than
equipment worn, and temperature and a medical evaluation in the first year five transferred employees at any one
humidity extremes that may be that respirators are required for mines time for the entire mining industry. The
encountered. The mine operator would that need them.5 Thirty miners per mine
normal hourly wage rate in an existing
also need to provide additional medical in mines with over 500 employees will
position where respiratory protection is
evaluations if: the miner’s supervisor need to use respirators and therefore
not required averages 20% less than the
notifies the PLHCP of medical signs or require a medical evaluation in the first
miner’s hourly wage rate in the position
symptoms related to the miner’s ability year that respirators are required for
where respiratory protection is required,
to use a respirator; the PLHCP informs mines that need them.6
taking into account the rare cases where
the mine operator that the miner needs Based on these assumptions a total of
there is no position in the mine to
to be reevaluated; information from the 680 miners will require a medical
which the miner can be transferred. A
respiratory protection program indicates evaluation in the first year after the rule
miner works 2,000 hours per year on
a need for miner reevaluation; or a takes effect to meet the 308EC and 350TC
average. The average remaining work
change in workplace conditions occurs. µg/m3 limits. An additional 244 miners
will require a medical evaluation at the life of a miner is 20 years.
If a respirator is needed, the mine beginning of the third year when the Based on the preceding assumptions,
operator would have to provide a 160TC µg/m3 limit takes effect. Table IX–1 summarizes the costs of
negative-pressure respirator. However, if Because of turnover, new miners will medical evaluation and transfer by mine
the PLHCP determines that the miner require medical evaluations in years size for 308EC µg/m3, 350TC µg/m3, and
cannot wear a negative-pressure subsequent to the first year in which 160TC µg/m3 limits. The estimated
respirator but can wear a positive- respirators are first used. In each year yearly medical evaluation and transfer
pressure respirator, then the mine after the first year, approximately 0.28 costs to mine operators to meet the
operator would be required to provide a additional miners per mine will require requirements of the final rule are
powered air-purifying respirator (PAPR) a medical evaluation in mines with $69,170 in 2004 dollars.8 The costs
to the miner. fewer than 20 employees. In each year shown in Table IX–1 are the only costs
attributable to this final rule.
The mine operator would have to
3 MSHA assumes that the wage of a health and BILLING CODE 4510–43–P
transfer the miner to an existing
safety specialist is the same as the wage of a mine
position in the same mine where supervisor. The wage is reported in 2004 dollars. 7 These numbers are based on a turnover rate of
respiratory protection is not required if 4 This estimate is based on the assumption of two
7% for the four miners per mine in mines with
the PLHCP determined that the miner two-person crews for one shift in mines with fewer fewer than 20 employees, the 12 miners per mine
was unable to wear either a negative- than 20 employees. in mines with 20–500 employees , and the 30
pressure respirator or a PAPR. The mine 5 This estimate is based on the assumption of miners per mine in mines with over 500: 4 × 0.07
three two-person crews for each of two shifts at = 0.28; 12 × 0.07 = 0.84; 30 × 0.07 = 2.10.
operator would be required to mines with 20–500 employees. 8 The spreadsheets underlying the development
compensate the miner at no less than 6 This estimate is based on the assumption of five to the cost estimates presented in this section, as
the regular rate of pay received by the two-person crews for each of three shifts at mines well as in Sections V, X, and XI of this preamble,
miner immediately before the transfer. with over 500 employees. are posted on MSHA’s Web page.
B. Costs of Implementing the 160TC µg/ described and explained in this $6,612,464 was the discounted (from
m3 Limit subsection are presented for purposes of 2006 to 2001) yearly cost of compliance
completeness and clarity and to support with the final limit. The yearly cost for
This subsection discusses all the costs the Agency’s finding of feasibility for compliance with the final limit
of reducing the existing 308EC µg/m3 the final limit, as shown in Section V. beginning in 2006 was estimated as
interim limit to the 160TC µg/m3 final In Chapter IV of the Regulatory $9,274,325 (p. 58). If we adjust for the
limit. These costs arise from both this Economic Analysis in support of the change in the number of mines and also
final rule and the existing 2001 and January 19, 2001 final rule (2001 REA), adjust for inflation (from 1998 dollars,
2005 final DPM rules for metal/ we estimated that underground M/NM in which the costs of the 2001 rule were
nonmetal mines. Most of the costs mine operators would incur yearly costs reported, to 2004 dollars), this yearly
estimated in this subsection are not to comply with the DPM final rule of cost becomes $9,259,519. These
attributable to this final rule. The costs $25,149,179 (p. 106). Of this amount, calculations are shown in Table IX–2.
ER18MY06.002</GPH>
This final rule would amend the discounted present value of the calculations, as well as the breakdown
January 19, 2001 final DPM rule by reduction in the cost estimate for this by mine size of this reduced cost
phasing in the 160TC µg/m3 final limit two-year phase-in period is $15,467,387. estimate. Because of feasibility issues
over an additional two-year period, from The annualized value of this reduced associated with currently meeting the
May 20, 2006 to May 20, 2008, to cost estimate, using an annualization 160TC µg/m3 limit, this reduction in
address feasibility issues that have rate of 7%, is $1,082,717 in 2004 cost estimate is not properly attributable
surfaced since the 2001 final rule. The dollars. Table IX–3 shows these as a cost saving due to this final rule.
ER18MY06.003</GPH>
The process of evaluating and system. Another mine operator, who These evaluation and implementation
implementing DPM control technologies initially tried a high-temperature costs, it should be noted, do not involve
has been more difficult, time disposable particulate filter (HTDPF) testing the workability of the known
consuming, and costly for some mine without exhaust gas cooling prior to the methods for reducing DPM emissions.
operators than we had initially filter media, needed to add a heat Rather, the evaluation is for determining
anticipated in the 2001 final rule. For exchanger prior to the filter media to the suitability of the various existing
example, some mine operators that meet the manufacturer’s exhaust gas DPM-control technologies for mine-
initially installed a passive regeneration temperature specifications. Yet another specific applications and integrating
system on a machine learned through mine operator, who used biodiesel fuel such technology into the mining and
trial and error that the machine did not during the summer months, needed to maintenance process. While the
have a consistent duty cycle that would make changes to the fuel delivery industry has provided examples of its
support passive regeneration, so they system during the winter months in experience with implementation
had to alter their regeneration strategy to order to deal with the lower ambient difficulties, they provided limited
ER18MY06.004</GPH>
incorporate an active regeneration temperatures. information as to the magnitude of these
particular costs. Accordingly, the costs DPM controls, MSHA estimates that, for that during the first two years of the
associated with evaluating various the average mine that has evaluation rule, 50% of mines will experience
methods to achieve compliance are costs, annual costs of evaluating evaluation costs. Further, MSHA
difficult to quantify. alternative methods of compliance are estimates that during the third and
Evaluation costs typically will not 25% of the previously estimated fourth years of the rule, 10% of mines
involve all diesel equipment. For compliance costs for mines to reduce will continue to experience evaluation
example, we would expect a mine the 308EC µg/m3 limit to the 160TC µg/ costs. These evaluation costs are being
operator to evaluate filters on one or a m3 limit. recognized in this final rule, as needed
few pieces of diesel equipment, Not all the diesel mines will incur
to achieve the final limit. However,
probably during maintenance shifts. We evaluation costs, beyond the costs
these costs were not caused by, or
therefore expect that costs of evaluation previously estimated, to comply with
will be only a fraction of MSHA’s the rule. Many mines are already in attributable to, this final rule. These
estimated costs of achieving the final compliance or can achieve compliance costs would exist even in the absence of
limit. Accordingly, based on its using technologies already proven to this final rule. These cost estimates are
technical expertise and experience with work in these mines. MSHA estimates shown in Table IX–4.
ER18MY06.005</GPH>
Table IX–5 integrates all the cost effect. Table IX–5 also includes the costs the 160TC µg/m3 final limit is
estimates and cost adjustments of the medical evaluation and transfer $8,454,853. The economic feasibility of
discussed in this subsection to provide provisions discussed in Section IX.A of the 160TC µg/m3 final limit, as reflected
an updated estimate of the cost for the this preamble and the costs of the in these revised cost estimates, is
industry to comply with the 160TC µg/ special extensions for the final limit discussed in Section V.B.
m3 final limit, given that the existing provided for in the 2005 DPM final
308EC µg/m3 interim limit is already in rule.9 The yearly cost of implementing
X. Regulatory Flexibility Act whether or not we can certify that the A. Definition of a Small Mine
Certification and Small Business final rule would not have a significant
Regulatory Enforcement Fairness Act economic impact on a substantial Under the RFA, in analyzing the
(SBREFA) number of small entities that are impact of a rule on small entities, we
covered by the final rule. Under the must use the Small Business
Pursuant to the Regulatory Flexibility SBREFA amendments to the RFA, we Administration (SBA) definition for a
Act (RFA) of 1980 as amended by the must include in the rule a factual basis small entity or, after consultation with
Small Business Regulatory Enforcement for this certification. If a rule would the SBA Office of Advocacy, establish
Fairness Act (SBREFA), we have have a significant economic impact on an alternative definition for the mining
analyzed the impact of the final rule on a substantial number of small entities, industry by publishing that definition in
small businesses. Further, we have we must develop a regulatory flexibility the Federal Register for notice and
made a determination with respect to analysis. comment. We have not taken such an
9 The cost savings due to other provisions of the estimates here because they have already accrued
ER18MY06.006</GPH>
2005 DPM final rule are not included in the to mine operators in achieving the interim limit.
action and hence are required to use the of the impacts on ‘‘small entities’’ while significant economic impact on a
SBA definition. The SBA defines a continuing our traditional definition of substantial number of small entities.
small entity in the mining industry as ‘‘small mines.’’ We conclude that we When estimated compliance costs
an establishment with 500 or fewer can certify that the final rule would not exceed one percent of revenues, it tends
employees. have a significant economic impact on to indicate that further analysis may be
We have also looked at the impacts of a substantial number of small entities warranted.
our rules on a subset of mines with 500 that are covered by this rulemaking. We
or fewer employees—those with fewer have determined that this is the case As shown in Table X–1, using either
than 20 employees, which we and the both for mines affected by this MSHA’s traditional definition of a small
mining community have traditionally rulemaking with fewer than 20 mine (those having fewer than 20
referred to as ‘‘small mines.’’ These employees and for mines affected by employees) or SBA’s definition of a
small mines differ from larger mines not this rulemaking with 500 or fewer small mine (those having 500 or fewer
only in the number of employees, but employees. employees), the estimated yearly costs
also in economies of scale in material of this final rule for small underground
produced, in the type and amount of B. Factual Basis for Certification M/NM mines that use diesel-powered
production equipment, and in supply MSHA’s analysis of impacts on ‘‘small equipment is less than 0.01 percent of
inventory. Therefore, their costs of entities’’ begins with a ‘‘screening’’ their estimated yearly revenues, well
complying with our rules and the analysis. The screening compares the below the level suggesting that this rule
impact of our rules on them will also estimated compliance costs of a rule for might have a significant economic
tend to be different. It is for this reason small entities in the sector affected by impact on a substantial number of small
that ‘‘small mines,’’ as traditionally the rule to the estimated revenues for entities. Accordingly, we have certified
defined by us as those employing fewer the affected sector. When estimated
that this final rule will not have a
than 20 workers, are of special concern compliance costs are less than one
significant economic impact on a
to us. percent of the estimated revenues, the
substantial number of small entities
This analysis complies with the legal Agency believes it is generally
requirements of the RFA for an analysis appropriate to conclude that there is no covered by the final rule.
XI. Paperwork Reduction Act those costs which relate to burden hours equivalent to an annualized value of
that are a result of the final rule. Both 1,261 burden hours per year and related
This final rule addresses information
collection requirements under OMB paperwork burden hours and costs were annualized burden costs of $28,905 per
Control Number 1219–0135 that have derived from the spreadsheets (posted year. On a per-mine basis, the
been submitted to the Office of on our Web page) used to estimate the annualized paperwork burden is 7.5
Management and Budget (OMB) for costs in Table IX–1. hours and $172 per year.
review under 44 U.S.C. 3504(h) of the MSHA estimates that the final rule The paperwork burden to the mine
Paperwork Reduction Act of 1995, as would create 3,687 burden hours for the operator is attributable primarily to
amended. first year, 299 burden hours for the § 57.5060(d)(3), to prepare and provide
The paperwork costs presented in this second year, 1,120 burden hours for the information to the PLHCP and to send
section are a subset of the total costs third year, and 371 burden hours each the miner to the PLHCP for a medical
ER18MY06.007</GPH>
presented in Table IX–1 and reflect only year after the third year. This is evaluation to determine the miner’s
ability to use a respirator. The evidence of their medical condition to two provisions is 103 and 17 hours per
annualized paperwork and cost burden the PLHCP, and to § 57.5060(d)(8), year, and $2,190 and $385 per year,
to the mining industry for this provision which requires mine operators to respectively.
is 1,140 hours and $26,330 per year. The maintain a record of the identity and The total paperwork hour and cost
remaining paperwork burden is written determination of the PLHCP. burden is summarized in Table XI–1 by
attributable to § 57.5060(d)(4), which The annualized paperwork and cost first year, second year, third year, and
allows miners to submit additional burden to the mining industry for these each year after the third year.
XII. Other Regulatory Considerations accuracy and completeness of this D. Executive Order 12630: Government
environmental assessment when this Actions and Interference With
A. The Unfunded Mandates Reform Act
rule was first proposed, and received no Constitutionally Protected Property
of 1995
comments relevant to this Rights
This final rule does not include any environmental assessment. We find, This final rule does not implement a
Federal mandate that may result in therefore, that the final rule has no policy with takings implications.
increased expenditures by State, local, significant impact on the human Accordingly, Executive Order 12630,
or tribal governments; nor does it environment. Accordingly, we have not Governmental Actions and Interference
increase private sector expenditures by provided an environmental impact with Constitutionally Protected Property
more than $100 million annually; nor Rights, requires no further agency action
statement.
does it significantly or uniquely affect or analysis.
small governments. Accordingly, the C. The Treasury and General
Unfunded Mandates Reform Act of 1995 Government Appropriations Act of E. Executive Order 12988: Civil Justice
(2 U.S.C. 1501 et seq.) requires no 1999: Assessment of Federal Reform
further agency action or analysis. Regulations and Policies on Families This final rule was written to provide
B. National Environmental Policy Act a clear legal standard for affected
This final rule has no affect on family conduct, and was carefully reviewed to
We have reviewed this final rule in well-being or stability, marital eliminate drafting errors and
accordance with the requirements of the commitment, parental rights or ambiguities, so as to minimize litigation
National Environmental Policy Act authority, or income or poverty of and undue burden on the Federal court
(NEPA) of 1969 (42 U.S.C. 4321 et seq.), families and children. Accordingly, system. Accordingly, this final rule
the regulations of the Council on Section 654 of the Treasury and General meets the applicable standards provided
Environmental Quality (40 U.S.C. 1500), Government Appropriations Act of 1999 in Section 3 of Executive Order 12988,
and the Department of Labor’s NEPA (5 U.S.C. 601 note) requires no further Civil Justice Reform.
procedures (29 CFR part 11). This final agency action, analysis, or assessment.
rule has no significant impact on air, F. Executive Order 13045: Protection of
water, or soil quality; plant or animal Children From Environmental Health
life; the use of land; or other aspects on Risks and Safety Risks
the human environment. We solicited This final rule has no adverse impact
ER18MY06.008</GPH>
public comment concerning the on children. Accordingly, Executive
Order 13045, Protection of Children accuracy and completeness of this following issues with regard to our 2001
from Environmental Health Risks and potential impact when the rule was first data:
Safety Risks, as amended by Executive proposed. We took appropriate account —The validity, precision and feasibility of
Orders 13229 and 13296, requires no of comments received relevant to the the sampling and analysis method
further agency action or analysis. rule’s potential impact on small entities. specified by the diesel standard (NIOSH
Accordingly, Executive Order 13272, Method 5040);
G. Executive Order 13132: Federalism —The magnitude of interferences that occur
Proper Consideration of Small Entities
This final rule does not have in Agency Rulemaking, requires no when conducting enforcement sampling
‘‘federalism implications,’’ because it further agency action or analysis. for total carbon as a surrogate for diesel
does not ‘‘have substantial direct effects particulate matter (DPM) in mining
on the States, on the relationship XIII. Information Quality environments; and,
—The technological and economic feasibility
between the national government and In accordance with the Information of the underground metal and nonmetal
the States, or on the distribution of Quality Act and the Department of (MNM) mine operators to achieve
power and responsibilities among the Labor Information Quality Guidelines, compliance with the interim and final
various levels of government.’’ we are responding to the substantive DPM concentration limits.
Accordingly, Executive Order 13132, information quality request of the —The parties developed a joint MSHA/
Federalism, requires no further agency Methane Awareness Resource Group Industry study protocol to guide sampling
action or analysis. (MARG) as part of other information/ and analysis of DPM levels in 31 mines.
data related comments received in the The parties also developed four
H. Executive Order 13175: Consultation record to this rulemaking. Some of the subprotocols to guide investigations of the
and Coordination With Indian Tribal known or suspected interferences, which
commenters’ issues are limitations of included mineral dust, drill oil mist, oil
Governments models, such as the 31-Mine Study and mist generated during ammonium nitrate/
This final rule does not have ‘‘tribal the Estimator model. No better data fuel oil (ANFO) loading operations, and
implications,’’ because it does not ‘‘have were offered by commenters and we environmental tobacco smoke (ETS). The
substantial direct effects on one or more find that that information remains the parties also agreed to study other potential
Indian tribes, on the relationship best available. We also conclude that sampling problems, including any
between the Federal government and some of the corrections requested were manufacturing defects of the DPM
Indian tribes, or on the distribution of policy solutions rather than information sampling cassette (70 FR 32871).
corrections, thus they will not be (Executive Summary, Report on the 31-
power and responsibilities between the Mine Study)
Federal government and Indian tribes.’’ addressed in our response.
Accordingly, Executive Order 13175, We received a number of comments MSHA requested that NIOSH peer
Consultation and Coordination with from the mining industry suggesting review the draft Report on the 31-Mine
Indian Tribal Governments, requires no that our risk assessment does not Study, and NIOSH’s conclusions were
further agency action or analysis. comply with the present requirements placed in the rulemaking record and
under the data quality guidelines to use published in the 2005 final rule (70 FR
I. Executive Order 13211: Actions the best available, peer reviewed 32871).
Concerning Regulations That science. In addition, industry We are confident that we have set
Significantly Affect Energy Supply, commenters stated that the DPM rule forth the evidence and rationale behind
Distribution, or Use does not comply with the congressional, our decisions to establish a rule
Regulation of the M/NM sector of the Office of Management and Budget amending the existing DPM standard
mining industry has no significant (OMB) and the Department of Labor that meets the statutory requirements for
impact on the supply, distribution, or (DOL) information quality guidelines promulgating this health standard as
use of energy. This final rule is not a because the DPM rule is not supported required under the Federal Mine Safety
‘‘significant energy action,’’ because it is by an adequate scientific basis, and it and Health Act of 1977 (Mine Act) in
not ‘‘likely to have a significant adverse fails to meet the reproducibility Section 101(a)(6)(A). We have presented
effect on the supply, distribution or use standard required for disseminating and discussed with commenters in
of energy * * * (including a shortfall in influential information. Moreover, these Federal Register notices, in preambles
supply, price increases, and increased commenters stated that OMB requires and at public hearings, the evidence
use of foreign supplies).’’ Accordingly, agencies in their own data quality supporting our decision to revise the
Executive Order 13211, Actions guidelines to submit for public existing rule restricting miner exposure
Concerning Regulations That comment data on which we rely or to DPM.
Significantly Affect Energy Supply, disseminate. The guidelines also With regard to the 2001 DPM risk
Distribution, or Use, requires no further establish administrative mechanisms assessment, we relied on peer-reviewed
agency action or analysis. that allow affected persons to seek or scientific studies. Of particular note, is
obtain correction of disseminated that the two quantitative meta-analyses
J. Executive Order 13272: Proper information if they believe such of lung cancer studies supporting our
Consideration of Small Entities in information does not comply with either risk assessment were peer reviewed and
Agency Rulemaking the OMB or MSHA guidelines. published in scientific journals. (Bhatia,
We have thoroughly reviewed this Throughout the DPM rulemakings, we Rajiv, et al., ‘‘Diesel Exhaust Exposure
final rule to assess and take appropriate have given serious consideration to the and Lung Cancer,’’ Journal of
account of its potential impact on small issues raised by commenters. As a Epidemiology, 9:84–91, January 1998,
businesses, small governmental result, we have made some adjustments and Lipsett M., and Campleman, Susan,
jurisdictions, and small organizations. to our data and provided comprehensive ‘‘Occupational Exposure to Diesel
As discussed in Chapter V of the REA, responses in this preamble. For Exhaust and Lung Cancer: A Meta-
we have determined and certified that example, we conducted the 31-Mine Analysis,’’ American Journal of Public
this final rule will not have a significant Study, which resulted from a joint Health, (89) 1009–1017, July 1999). We
economic impact on a substantial protocol of government, the mining informed the public as early as
number of small entities. We solicited industry and organized labor, to address September 25, 2002, in the 2002
public comment concerning the and correct, where necessary, the ANPRM for the 2005 final rule at M/NM
mines, in the 2003 NPRM, in the 2005 miners’ exposures to DPM, not to TC. other than 1.3 for the 350TC µg/m3 final
final rule and again in the 2005 TC was chosen as the surrogate for PEL.
proposed rule that we would measuring that exposure in the 2001 Some commenters suggested that the
incorporate the existing rulemaking final rule. In concert with the Second data used in the 31-Mine Study and the
record into the record of this Partial Settlement Agreement, we analytical method used (NIOSH Method
rulemaking, including the 2001 risk proposed in 2003 to ‘‘[r]evise the 5040) should be subjected to peer
assessment. In that risk assessment, we existing diesel particulate matter (DPM) review. However, MSHA, organized
carefully laid out the evidence available interim concentration limit measured by labor, and the mining industry, through
to us, including shortcomings inherent total carbon (TC) to a comparable the negotiations process, jointly
in that evidence. Although not required permissible exposure limit (PEL) developed the protocol for conducting
by law to do so, we had the 2001 risk measured by elemental carbon (EC) the 31-Mine Study. All of the parties
assessment independently peer- which renders a more accurate DPM agreed on the protocol following
reviewed, published the evidence and exposure measurement.’’ (68 FR 48668). numerous discussions among industry,
tentative conclusions for public As proposed, our 2005 final rule (70 FR labor, and government experts, and had
comment, and incorporated the 32868) establishes the measurement of an opportunity to comment and make
reviewers’ recommendations. We were DPM using EC as a direct measure of changes to the document. Thereafter, we
open to considering any new scientific total DPM. The 2001 risk assessment conducted the study, following the
data relating to the risk assessment. establishes a material impairment of agreed upon protocol, and published its
Commenters were encouraged in the health or functional capacity to miners results. Industry was given an
instant rulemaking to submit new from exposure to DPM and does not opportunity to publish their separate
scientific data related to the health risk distinguish between adverse health results simultaneously with the
from exposure to DPM. Some effects specific to either the EC or OC government. During this rulemaking,
commenters did submit new evidence fractions of DPM. The measurement of industry submitted to us through the
and we have included those documents that exposure, whether using TC, EC or notice and comment process their
in the record for consideration. OC as a surrogate, is not related to the conclusions on the 31-Mine Study in a
Other commenters stated that we need material impairment of health endpoints report titled, ‘‘Technical and Economic
to stay the interim and final limits and identified in the 2001 risk assessment Feasibility of DPM Regulations.’’ The
wait for completion of the NIOSH/NCI and in subsequent literature updates. industry report is contained in the
Study. They believe that any regulatory Our discussion in Section VIII.A. of this rulemaking record, and we considered it
effort before the completion of the study preamble of the variability of the EC:TC in reaching determinations for the 2005
is not in compliance with the DOL ratio addresses total adverse health risks final rule. We have been transparent
Guidelines that define influential of DPM. The analysis of the EC:TC ratio about the design of the study and
information: ‘‘In rulemaking, influential is presented in that section, and in the methods of analysis.
information is scientific, financial, or Commenters also stated that we
preamble to our 2005 final rule (70 FR
statistical information that the agency disseminated information that relies on
32894–32899). The 2001 risk assessment
believes will have a clear and non-representative sampling and is
discusses possible mechanisms of
substantial impact on the resolution of therefore in violation of the Information
carcinogenesis for which both EC and
one or more key issues in an Quality Guidelines. The information
OC would be relevant factors (66 FR at
economically significant rulemaking, as they refer to was obtained in the
5811–5822). Multiple routes of
that term is defined in section 3(f)(1) of previously discussed 31-Mine Study
carcinogenesis may operate in human
Executive Order 12866 (DOL and also during our baseline sampling.
lungs, some requiring only the various
Guidelines, p. 6).’’ Under the Second Partial DPM
We have a statutory obligation to organic mutagens in DPM and others Settlement Agreement, we agreed to
consider in a rulemaking the best involving induction of free radicals provide compliance assistance to the M/
available evidence. (Section regardless of whether the source is the NM underground mining industry for a
101(a)(6)(A)). Though the NIOSH/NCI EC fraction, OC fraction, some other one-year period from July 20, 2002
Study is ongoing, at this time, we are unidentified component, or a through July 19, 2003. As part of our
confident that the current rulemaking combination of components. We compliance assistance activities, we
record includes credible scientific data recognize that identifying the toxic agreed to conduct baseline sampling of
to establish occupational exposure components of DPM, and particulate miners’ personal exposures at every
limits for DPM. The scientific basis for matter in general, is an important underground mine covered by the 2001
the health risk of exposure to DPM is research focus of a variety of final rule.
supported by the rulemaking record in government agencies and scientific A total of 1,194 valid baseline
both the 2001 and 2005 rules. We will organizations (see, for example: Health samples were collected. A total of 183
continue to closely monitor the progress Effects Institute, 2003; Environmental underground M/NM mines are
of the NIOSH/NCI joint study, and when Protection Agency, 2004b). represented by this analysis. We used
the results of this study become We are still considering various the results of this sampling in our
available, we will carefully consider alternatives for converting the 350TC µg/ preamble to the 2005 final rule to
them. m3 and 160TC µg/m3 final limits to estimate current DPM exposure levels in
Commenters stated that our statement commensurate EC limits. We will underground M/NM mines using diesel
that TC cannot be measured accurately consider all comments in this equipment (70 FR 32873–32883) and in
and our change to a new surrogate, EC, rulemaking record concerning the the risk assessment for this final rule.
undermines our 2001 justifications for relationship between EC, OC and TC in The sampling results also assist mine
our diesel rules, including the exposure a separate rulemaking to determine the operators in developing compliance
limits. They reasoned that we regulated most appropriate conversion of the final strategies based on actual exposure
TC, and that we based our 2001 TC limits. Presently, we believe that the levels. Most commodities were well
determinations of risk, benefits, impacts DPM rulemaking record is inadequate represented in this analysis with the
and feasibility on TC as a surrogate for for us to make determinations regarding average number of valid samples per
DPM. In response, our rules limit a more appropriate conversion factor mine ranging from 6.0 to 8.2 (average
across all mines is 6.5 samples per develop method-specific error factors to rationale in picking a particular
mine). assure that a personal exposure result is concentration limit: 160TC µg/m3 or around
MSHA compliance specialists more than likely to represent an 200DPM µg/m3. Capping DPM
collected baseline samples in the same concentrations at this level will eliminate the
overexposure. These error factors
worst mining exposures, and bring miner
manner they have been instructed to use account for normal and expected exposures down to a level commensurate
for collecting samples for enforcement variability inherent in any analytic with those reported for other groups of
purposes. It is expected that personal method and sampling protocol and workers who use diesel-powered equipment.
exposure to DPM will fluctuate due to provide a basis for interpretation of The proposed rule would not bring
variations in day to day operations in a sampling results. When we interpret concentrations down as far as the proposed
mine. Reported levels of DPM are sampling results and make a ACGIH TLVR of 150DPM µg/m3. Nor does
representative of the exposures of determination of compliance, we apply MSHA’s risk assessment suggest that the
miners identified as having the highest proposed rule would completely eliminate
the error factor to the result to gauge
risks of overexposures to DPM during the significant risks to miners of DPM
whether the sample indicates a true exposure.
our compliance assistance work. In an overexposure. We use the validated In setting the concentration limit at this
ideal situation, and with unlimited NIOSH Analytical Method 5040 for particular value, the Agency is acting in
resources, every potentially exposed diesel particulate matter to analyze our accord with its statutory obligation to attain
miner would be individually sampled. It personal exposure samples collected for the highest degree of safety and health
is not necessary or practical, however, compliance determinations. protection for miners that is feasible. The
to sample all miners on a mine property The NIOSH criteria and guidelines Agency’s risk assessment supports reduction
in order to evaluate personal exposures. used for method validation do not of DPM to the lowest level possible. But
Suspected and potential health hazards feasibility considerations dictated proposing
directly apply to the development of
may be reasonably and adequately a concentration limit that does not
error factors. However, similar statistical completely eliminate the significant risks
evaluated by sampling the maximum procedures to develop analytical that DPM exposure poses to miners.
risk miner in a work area. Compliance methods can also be used to develop The Agency specifically explored the
specialists strive to characterize the error factors. The commenters fail to implications of requiring mines in this sector
higher exposure levels during typical recognize other differences between to comply with a lower concentration limit
work shifts. The baseline samples are validation of methods and development than that being adopted. The results,
representative of the conditions of error factors. We discuss our error discussed in Part V of this preamble, indicate
experienced on work shifts during the factor in detail in Section VIII.A. of this that although the matter is not free from
defined compliance assistance period. question, it still may not be feasible at this
preamble.
MSHA has obtained the best available time for the underground metal and
Commenters further questioned nonmetal mining industry as a whole to
information for characterizing recent whether the NIOSH Method 5040 has comply with a significantly lower limit than
activities at the relevant M/NM mines. been commercially tested. As in the that being adopted. The Agency notes that
Commenters questioned the accuracy preamble to the 2003 NPRM, we since this rulemaking was initiated, the
and validity of the NIOSH Analytical discussed in detail our findings efficiency of hot gas filters has improved
Method 5040. NIOSH validation criteria regarding the NIOSH Method 5040 in significantly, the dpm emissions from new
state that the NIOSH Analytical Method the 31-Mine Study discussion in the engines continue to decline under EPA
5040 provides a result that differs no preamble to the 2005 final rule (70 FR requirements, and the availability of ultra-
more than ±25% from the true value 95 32870–32871) and in Section VIII of this low sulfur fuel should make controls even
times out of 100. The NIOSH Analytical preamble. NIOSH’s peer review of the
more efficient than at present.
Method 5040 validation is documented The Agency also explored the idea of
31-Mine Study also concludes that the bridging the gap between risk and feasibility
in several publications. See our analytical method specified by the
discussion of this in Section VIII.A. of by establishing an ‘‘action level’’. In the case
diesel standard gives an accurate of MSHA’s noise rule, for example, MSHA
this preamble for additional peer- measure of the TC content of a filter adopted a ‘‘permissible exposure level’’ of a
reviewed studies providing evidence sample and that the analytical method time-weighted 8-hour average (TWA8) of 90
that the NIOSH Analytical Method 5040 is appropriate for making compliance dBA (decibels, A-weighted), and an ‘‘action
method is valid. In a study published by level’’ of half that amount—a TWA8 of 85
determinations of DPM exposures of
Noll, et al., in January 2005 evaluating dBA. In that case, MSHA determined that
underground M/NM miners. NIOSH
sampling results of DPM cassettes, the miners are at significant risk of material harm
confirmed this position by letter of
authors report a 95% upper confidence at a TWA8 of 85 dBA, but technological and
February 8, 2002, in which NIOSH feasibility considerations preclude the
limit Coefficient of Variation (CV) of 7%
stated that, industry as a whole, at this time, below a
when analyzing samples for EC and 6%
for TC. In this same study, NIOSH MSHA is following the procedures of TWA8 of 90 dBA. Accordingly, to limit miner
NIOSH Method 5040, based on our review of exposure to noise at or above a TWA8 of 85
reported good agreement and precision
MSHA P13 (MSHA’s protocol for sample dBA, MSHA requires that mine operators
between EC for DPM samples using SKC must take certain actions that are feasible
analysis by NIOSH Method 5040) and a visit
impactor and respirable samples in both (e.g., provide hearing protectors).
to the MSHA laboratory.
laboratory and field studies. Two MSHA considered the establishment of a
studies published in 2004 (Noll, et al., Commenters stated that MSHA’s similar ‘‘action level’’ for DPM— probably at
2004 and Birch, et al., 2004) reported former chairman of the DPM half the proposed concentration limit, or
results from investigating sampling for Rulemaking Committee had a conflict of 80TC µg/m3. Under such an approach, mine
EC in the presence of coal dust using interest as he was also author of the operators whose DPM concentrations are
submicron impactors. The results show ACGIH diesel TLV. In response, our above the ‘‘action level’’ would be required
good agreement between submicron EC 2001 final rule includes the basis for our to implement a series of ‘‘best practices’’—
interim limit of 400TC µg/m3 and final e.g., limits on fuel types, idling, and engine
and respirable samplers for collecting maintenance. Only one commenter

DPM samples. limit of 160TC µg/m3, and states the
supported the creation of an Action Level for
Commenters also stated that we following: DPM. However, this commenter suggested
calculated the error factors for our Because of the lack of a generally accepted that such an Action Level be adopted in lieu
analytical method assuming no related dose-response relationship, some of a rule incorporating a concentration limit
methodological inaccuracies. We commenters questioned the agency’s requiring mandatory compliance. The
Agency determined it is feasible for the entire which was the only option used in the The differences between the
underground mining community to 31-Mine study, if ventilation changes Estimator’s user-selectable ‘‘Column A’’
implement these best practices to minimize are not specified, the prevailing and ‘‘Column B’’ options are addressed
the risks of DPM exposure without the need
for a trigger at an Action Level (66 FR 5710).
ventilation in a given area of the mine in Section V.A of this preamble and
is irrelevant to Estimator analysis. The previously were thoroughly discussed
Consequently, MSHA did not rely on engineering rationale for this effect was in the preamble to the 2005 final rule
data from ACGIH in establishing its explained thoroughly in the final report (70 FR 32920):
2001 final rule. for the 31-Mine Study (p. 96):
Commenters leveled several other The Estimator actually incorporates two
It is significant to note that when independent means of calculating DPM
criticisms at the Estimator and the 31- levels: one based on DPM sampling data for
ventilation remains the same before and after
Mine Study which they believe violate the subject mine, and one based on the
DPM controls are specified in the Estimator
Data Quality Act requirements and (i.e. the DPM control chosen was not a absence of such sampling data. Where no
invalidate our conclusions regarding the change in ventilation), the actual ventilation sampling data exist, the Estimator calculates
feasibility of the 2001 and 2005 final value used is irrelevant. This characteristic of DPM levels based on a straightforward
rules. The computer program in the Estimator applies to any mine ventilation mathematical ratio of DPM emitted from the
question, referred to as the Estimator, is scheme, but it is particularly important tailpipe (or DPF, in the case of filtered
a Microsoft Excel spreadsheet program where ventilation velocity is low, and exhaust) per volume of ventilation air flow
ventilation flow is difficult to accurately over that piece of equipment. This is referred
that calculates the reduction in DPM to in the Estimator as the ‘‘Column B’’ option
concentration that can be obtained measure. Mine ventilation velocity is very
low in large parts of many room and pillar for calculating DPM concentrations. The
within an area of a mine by mines with large cross-section mine commenters’ observation that the Estimator
implementing individual or openings. This situation suggests two fails to account for imperfect mixing between
combinations of engineering controls. possible problems with DPM measurement— DPM emissions and ventilating air flows is a
This program was the subject of a difficulty measuring mine airflow rates, and valid criticism of the ‘‘Column B’’ option. For
Preprint published for the 1998 Society non-homogeneous mixtures of DPM in mine this and other reasons, the Estimator’s
of Mining Engineers Annual Meeting air. DPM concentrations in the ambient air at instructions urge users to utilize the
these mines can be profoundly affected by ‘‘Column A’’ option whenever sampling data
(Preprint 98–146, March 1998), and it
near-stagnant conditions in some areas, as are available.’’
was fully described in a peer reviewed In the ‘‘Column A’’ option, the Estimator’s
article in a professional journal (Haney well as by localized air movement that is
independent of the overall mine ventilation calculations are ‘‘calibrated’’ to actual
and Saseen, Mining Engineering, April flow. Such localized air movement can result sampling data. Whatever complex mixing
2000). from pressure differences created by wind between DPM emissions and ventilating air
Commenters objected to the use of from moving vehicles, natural ventilation, flows existed when DPM samples were
input data for the Estimator which they diesel engine cooling fans, heat-induced obtained, are assumed to prevail after
characterized as ‘‘assumed ventilation stratification, etc. In these situations, perfect implementation of a DPM control. This is an
air flows that do not reflect reality or mixing of mine air with DPM emissions entirely reasonable assumption, and in fact,
actual MSHA measurements,’’ and would not be expected, hence, the DPM there is no engineering basis to assume
concentration in ambient mine air could not otherwise. Indeed, comparisons of ‘‘Column
‘‘assumptions regarding perfect mixing A’’ Estimator calculations and actual DPM
of ventilation air to achieve dilution of be reasonably estimated by simply dividing
the DPM emission rate by the ventilation measurements taken in mines before and
exhaust particulate,’’ which they further flow rate. after implementation of DPM controls have
characterized as ‘‘another assumption In its Column A option, the Estimator does shown good agreement, indicating that
that does not reflect reality or actual not calculate DPM concentration by dividing Estimator calculations do adequately
measurements.’’ The commenters stated the DPM emission rate by the ventilation incorporate consideration for complex
that these failures are violations of the flow rate. Thus, in MSHA’s view, neither the mixing of DPM and air flows when the
Data Quality Act’s reproducibility and difficulty of measuring airflow nor the ‘‘Column A’’ option is used. The Estimator
imperfect mixing of DPM and mine air is was originally developed with both the
transparency requirements, and that Column A and Column B options because at
MSHA admitted to these failures in the important. The Estimator accounts for
complex and imperfect mixing of ventilation the time it was developed (1997), the
preamble to the 2005 final rule. air and DPM emissions by assuming that this specialized equipment required for reliable
Regarding the use of ‘‘assumed mixing, in whatever manner it occurs when and accurate in-mine DPM sampling, such as
ventilation flows that do not reflect DPM samples are initially collected, would the submicron impactor, was not widely
reality,’’ all data used in Estimator remain unchanged after DPM controls are available. Consequently, few mine operators
analysis for the 31-Mine Study were implemented. MSHA considers this to be a were able to obtain the in-mine DPM sample
obtained by MSHA M/NM industrial reasonable assumption unless the DPM data required for utilizing the Column A
hygienists or Health Specialists. The control that is specified is itself a major option.
ventilation inputs were either measured ventilation change. Since ventilation changes The commenter refers to the ‘‘Column
or estimated by these MSHA personnel. were not specified for any of the mines where A option’’ as an alternative use of the
complex and imperfect mixing was likely to Estimator. However, we have always
As stated in the final report of the 31- occur, MSHA considers it reasonable to
Mine Study, ‘‘Each mine was evaluated estimate a final DPM concentration at these
recommended that the Column A option
individually, based on the DPM mines based on applying a proportionality be used if sampling data are available.
concentration data obtained for that factor to the DPM concentration originally As noted above in the excerpt from the
mine through sampling, coupled with measured. The proportionality factor is 31-Mine Study, we explained fully at
the mine-specific equipment, operating simply the ratio of the DPM emission rate the time the study was released in
practices, and ventilation observed at after controls are implemented to the DPM January 2003 exactly how the Estimator
that mine.’’ emission rate before controls are was used in that study, and we also
Of the 31 mines addressed in the implemented, and is independent of the explained its use in the preamble to the
actual airflow present at that location.
study, ventilation changes were June 2005 final rule. The commenter
Although the Estimator makes simplifying
specified for only five, and those assumptions, MSHA considers its results
states that the sample data used in
changes were limited to auxiliary reasonably accurate. The Estimator’s Estimator analysis were ‘‘non-
ventilation systems only. This fact is calculations have been compared to actual representative of routine mining
very important because when using the in-mine data, and good agreement has been conditions that can vary greatly at each
‘‘Column A’’ option of the Estimator, achieved. mine from day to day, and from mine
to mine throughout the industry.’’ For 26 of the 31 mines, ventilation work provided mine operators with data
However, we stated in the 31-Mine flow rates did not factor into Estimator that showed expected DPM reductions
Study final report that we followed analysis because, as explained above, in a diesel laboratory, an isolated zone,
standard MSHA enforcement sampling they were not relevant to the and in production areas. The expected
procedures to obtain the DPM samples computations. For the remaining five reductions were presented to assist
at the 31 mines. These procedures are mines, we continue to believe our mine operators with choosing DPM
public information, and were well estimates of ventilation flow rates were controls for implementation in their
known by the labor and industry sufficiently accurate for the purposes of mines. We discussed information on
representatives that collaborated on the the study. Both our methods and data DPFs that can achieve EC reductions
study protocol. sources were explained thoroughly and above 90% and informed mine
Regarding the question of whether the we have responded previously on the operators of other products that gave
data obtained in the 31-Mine Study record to these same criticisms of the very minimal reductions. This was done
were representative of the industry as a Estimator. to give mine operators the ability to
whole, the mines in the study were Some commenters questioned the choose a single control or combination
jointly selected by MSHA, labor, and quality of reports of MSHA’s of controls that would be
industry representatives. A reasonable compliance assistance work at mines technologically and economically
attempt was made to achieve a cross- covered under the standard, and feasible and appropriate for their
section of the industry in terms of requested that they be stricken from the particular situation to implement in
commodities and mine sizes. The rulemaking record because these studies order to meet the interim limit and the
MSHA, labor, and industry personnel were conducted without an apparent final limits specified in this final rule.
who collaborated on the study protocol protocol or independent peer review. All of the data collected during the
were all fully aware at that time that the Also, commenters stated that these 31-Mine Study and subsequent studies
study was never intended to be studies have not been published nor performed by NIOSH were gathered
statistically representative of the submitted for publication in any using transparent methods, with
industry as a whole, and this fact was scientific journal. In response, the protocols agreed upon by industry and
explicitly stated in the 31-Mine Study compliance assistance reports in the union representatives. NIOSH
final report. DPM rulemaking record are not performed extensive isolated zone
intended for publication in a scientific studies that were developed and
The commenter suggests that the journal, but instead, are accounts of our performed through the M/NM Diesel
study is ‘‘suspect’’ because 25% of the experiences at mines where mine Partnership (the Partnership). NIOSH’s
samples were voided. As was explained operators requested help from MSHA in reports were reviewed by the industry
in the 31-Mine Study final report, of the reducing DPM exposures. Under the and revised based on comments in the
464 samples obtained at the 31 mines, second partial DPM settlement record. Our compliance assistance work
106 were voided. A key consideration in agreement, MSHA agreed to provide discussed previously in this section and
the sampling conducted at the 31 mines compliance assistance at underground the data obtained from those studies
was to ensure, to the extent possible, mining operations using diesel-powered were developed with industry
that samples were not contaminated by equipment from July 20, 2002 through assistance.
non-diesel sources of airborne carbon. July 19, 2003. The commenters state that our
Testing had verified that the submicron The Technological Feasibility section feasibility determinations for individual
sampler would remove mineral dust of this preamble, Section V.A, discusses mines and for the industry were based
contamination (limestone, graphite, the information and data related to in part on the results of Estimator
etc.), but tobacco smoke, drill oil mist, feasible engineering and administrative analysis that calculated compliant DPM
and possibly vapors from ANFO loading controls currently available for the concentrations after installation of DPM
could contaminate a sample filter with mining industry as a whole. Mines have filters, thus demonstrating that such
non-diesel organic carbon. Thus, in implemented many of these DPM filters could be used by mine operators
accordance with the study protocol that controls to meet the interim DPM limit to attain compliance with the interim
had been jointly developed and as shown by our enforcement sampling. and final DPM limits. The commenters
approved by both us and the litigants, As further discussed in that section, we object to the use of the Estimator for this
any sample that was known to have expect the industry as a whole will purpose because they believe such
been, or could potentially have been continue to learn more about the filters did not exist. They charge that
contaminated with such an interferent available control technologies and since appropriate filters did not exist,
was voided. Of the 106 voided samples, implement these control strategies in the methodology for our feasibility
61 were voided due to interferences. order to meet the final limits specified determination failed to meet our Data
There were also some samples that were in this final rule. We recognized that Quality requirements.
voided for other reasons, such as implementation issues were making it We disagree with the commenter’s
laboratory error (2 samples), sample difficult for some mines to use DPFs and statement that our, ‘‘assumptions
pump failure (22 samples), or obtain alternative fuels such as [regarding the availability of filters] do
incomplete sample or sampling the biodiesel. The extension of time allowed not reflect reality.’’ We have provided
wrong location (21 samples). Including by this final rule was justified due to the extensive discussion throughout the
any of these 106 voided samples in the greater availability of biodiesel fuels, the rulemaking record supporting our
data analysis would have cast doubt on variety of DPF systems available, and position that diesel particulate filters
the validity of the study. The study the cleaner on-highway diesel engines suitable for any size diesel engine were
methodology that resulted in voiding that are becoming available. commercially available at the time the
questionable samples was part of the The data presented in the Feasibility 2001 final rule was issued, and that a
mutually agreed upon study protocol, sections of this rulemaking support the greater variety of such filters have
the rationale for voiding these samples feasibility of the various DPM control become commercially available since
was well known and supported by all technologies. This data were derived 2001. The commenter states that we
parties, and it was fully explained in the from sources such as NIOSH, MSHA, were, ‘‘forced to admit’’ in the 2005
study final report. and the Biodiesel Board. The NIOSH final rule that there was ‘‘insufficient
evidence of feasibility,’’ thus study that were developed and reviewed billions, of dollars of industry annual
contradicting the Estimator and 31-Mine with industry showed no NO2 issues on revenue, business failures can and do
Study feasibility determinations. The production machines in well ventilated occur, and over a period of decades, the
sentence from the preamble to the 2005 areas. characteristics of an industry can
final rule quoted by the commenter Commenters raised several Data change markedly. However, by utilizing
states, in full, ‘‘MSHA acknowledges Quality issues relating to our the 1% of annual revenue screening
that the current rulemaking record lacks determinations that the 2001 and 2005 benchmark, we assure that a complete
sufficient feasibility documentation to final rules were economically feasible. feasibility analysis will be conducted to
justify lowering the DPM limit below They include whether the data used to determine whether a new MSHA rule
308EC µ/m3, at this time.’’ This make these determinations were could potentially affect the viability of
statement was not meant to imply that representative of the industry, that an industry.
either the 2001 or 2005 final rule was industry annual revenue is an While it is true that individual
infeasible, and it is irrelevant to the inappropriate measure of economic business failures can and do occur, and
final DPM limit. It states that at that feasibility, that erroneous commodity that over a period of many years,
time, which was June 2005, we did not prices were used in the 31-Mine Study substantial portions of a domestic
believe it was feasible for the industry to estimate revenue for at least one of industry can be adversely affected by,
as a whole to achieve DPM levels lower the mines in the study, and that the 31- for example, international competition,
than the interim DPM limit, 308EC µ/m3, Mine Study incorrectly assumed that it is highly improbable that such events
which was the DPM limit in effect at none of the mines in the study required would be set into motion by a rule
that time. major ventilation upgrades. They imposing costs equal to or less than 1%
The commenter stated that our believe our economic feasibility of industry annual revenue. Threats to
explanation for many filter failures conclusions were based on improper an entire industry’s competitive
reported by Stillwater and other sampling, and inaccurate and structure and resulting large scale
companies was that the user or the incomplete data. dislocations within an industry sector
manufacturer was at fault, and that if Each of these issues is discussed in are typically caused by fundamental
MSHA had selected the filters, we detail in the Economic Feasibility changes in technology, permanent
would have selected or used them section of this preamble. The key downward pressure on demand for a
differently. We have extensively information from that section that commodity due, for example, to the
discussed in our preambles in this relates to commenters’ Data Quality introduction of a superior substitute
rulemaking record that the user of a DPF concerns is summarized here. Regarding material, world-wide or regional
must evaluate and monitor each the first issue, that the subject mines in business cycles, etc. Our practice of
application in order to verify that the the 31-Mine study were not utilizing compliance costs of greater
DPF is working properly at all times. We representative of the industry, this issue than 1% of industry annual revenue as
have continually stated that the majority has already been addressed above. our screening benchmark for
of the DPF failures that have been MSHA, labor, and industry collaborated determining whether a more detailed
reported have been related to DPF on the study design, and all parties were economic feasibility analysis is required
regeneration. We believe that better aware at the time that the study mines is reproducible and transparent, and is
choices in selection and maintenance of were not randomly selected. Thus, the based on reasonable assumptions and
DPFs would result in greater successes. study results would reasonably sound economic principles.
However, these regeneration issues are accurately reflect feasibility of the The third issue raised by the
not related to the capability of DPFs to subject mines, but would not be commenter relating to economic
effectively collect DPM. All of the data statistically representative of the feasibility was that erroneous
that we have presented on DPFs show industry as a whole. The entire process commodity prices were used to estimate
that DPFs effectively collect DPM. Tests was transparent, reproducible, and annual revenue for one of the mines in
that were performed in the mining based on valid assumptions and sound the 31-Mine Study. The commenter
industry have consistently supported methods. states that our revenue estimates suggest
the same conclusions and agree with Regarding the second issue of whether we used a price of $50 to $70 per ton
data given in the literature. Again, the industry annual revenue is an for rock salt for highway de-icing, when
failure of the regeneration scheme is the inappropriate measure of economic a more reasonable estimate would have
main cause of a clogged filter. The feasibility, commenters indicated that been $20 to $25 per ton.
proper selection of DPFs has been this method ignores the fact that The commenter did not explain how
discussed in the literature, and NIOSH’s international commodity markets they inferred a $50 to $70 per ton price
Filter Selection Guide extensively determine the viability of mines by for rock salt from our analysis, so we are
provides the information needed for setting market prices for their unable to respond directly to this
selection. production, and that annual revenues of comment. However, we did not base our
The commenter also discusses the hundreds of millions, if not billions, of economic feasibility determination for
NO2 issues related to DPFs. The data dollars have not prevented the domestic the subject mine on this inflated price
presented from studies show that underground M/NM mining industry for rock salt. For the 31-Mine Study, we
catalyzed DPFs can increase NO2. This from shrinking in recent years. did not have access to actual annual
data have been developed with the We believe that the method we used revenue data for any of the 31
Partnership. However, we continue to to determine economic feasibility is individual mines in the study, so we
believe that the NO2 problems reported valid. We have customarily used indirectly estimated annual revenues
have been ventilation issues and not compliance costs of greater than 1% of using our data on the number of
specifically a DPF issue. In fact, as industry annual revenue as our employee work hours in 2000 for each
discussed in the Technological screening benchmark for determining mine, the total number of employee
Feasibility section, NIOSH stated that whether a more detailed economic work hours reported to us in 2000 by all
NO2 elevations experienced were a feasibility analysis is required. The mines producing that commodity, and
result of poorly or marginally ventilated commenter correctly points out that data from the U.S. Geological Survey on
areas. Our data from the Greens Creek despite hundreds of millions, if not the industry-wide value of mineral
production by commodity for the year control strategy, or the optimal control Arlt, V., et al., Metabolic activation of the
2000. We estimated annual revenues for strategy for that mine. environmental contaminant 3-
a particular mine by determining the The fact that the operator of one of the nitrobenzanthrone by human
mines in the study estimated costs of acetyltransferases and sulfotransferase,
industry-wide production value per
Carcinogenesis, vol.23 no.11 pp.1937–
employee hour for the specific $4.4 million for ventilation upgrades to 1945, 2002.
commodity each mine produced, and attain compliance with the rule does not Behndig AF, Mudway IS, Brown JL, Stenfors
multiplying that amount by the number invalidate the methodology we used, or N, Helleday R, Duggan ST, Wilson SJ,
of annual employee work hours the results we obtained in the 31-Mine Boman C, Cassee FR, Frew AJ, Kelly FJ,
reported to us for that mine. This study. It is impossible for us to verify Sandstrom T, Blomberg A. Airway
methodology assumes that each mine’s whether $4.4 million for ventilation antioxidant and inflammatory responses
annual revenues would be roughly upgrades is a reasonable estimate for the to diesel exhaust exposure in healthy
proportional to each mine’s share of the subject mine because we don’t know humans. Eur Respir J 2006; 27(2):359–
365.
industry’s total employee work hours. which mine the commenter is referring Bhatia, Rajiv, et al., ‘‘Diesel Exhaust
Thus, our estimates, while not to, and no additional supporting Exposure and Lung Cancer,’’ Journal of
necessarily exact for each mine, were a documentation was provided by the Epidemiology, 9:84–91, January 1998.
reasonable approximation for those commenter. However, even if this figure Birch, M.E.; J.D. Noll. Submicrometer
mines based on industry averages. Our is accurate, it would not necessarily elemental carbon as a selective measure
analytical methods and data sources invalidate our methodology or results. of diesel particulate matter in coal
were fully explained in the final report We have received numerous comments mines. Journal of Environmental
to the 31-Mine Study. The process was throughout the rulemaking process that Monitoring. 2004:6:799–806.
transparent and reproducible, and the Birch, Occupational Monitoring of
ventilation upgrades alone would not be
method was sound. This methodology Particulate Diesel Exhaust by NIOSH
a cost-effective DPM control at many Analytical Method 5040, Applied
does not explicitly incorporate a cost mines. These comments support our Occupational and Environmental
per ton factor. Implicit in this position that mine operators need to Hygiene, Vol. 17(6):400–405, 2002.
methodology, based on the U.S. carefully analyze all DPM control Boffetta, Paolo and D.T. Silverman. ‘‘A Meta-
Geological Survey’s estimates of rock options in order to select the most cost- Analysis of Bladder Cancer and Diesel
salt production in 2000 of 45,600,000 effective control or combination of Exhaust Exposure,’’ Epidemiology, 2001;
metric tons valued at $1,000,000,000, controls to implement at a particular 12(1):125–130.
would be a cost per metric ton of $21.93 mine. Although a $4.4 million Bugarski, A.D., Schnakenberg, G.H. Jr., Noll
(equivalent to $19.89 per short ton), J.D., Mischler S.E., Crum M., Anderson
ventilation upgrade may be required to
which is actually slightly less than the R. [2005a]. Evaluation of diesel
attain compliance at the subject mine, if particulate filter systems and biodiesel
commenter’s estimated price of $20 to ventilation alone was used to attain blends in an underground mine. Society
$25 per short ton. compliance, it is more likely that for Mining, Metallurgy, and Exploration
The final issue relating to economic compliance could be achieved at this Transactions, 318:27–35.
feasibility raised by the commenter also mine at a lower cost if an optimal Bugarski, A., Mischler, S., Noll, J.,
concerns the 31-Mine Study. The combination of controls were Schnakenberg, G., Crum, M., and
commenter suggests that our implemented, including low DPM- Anderson, R. [2004] ‘‘An Evaluation of
methodology underestimated emission engines, environmental cabs the Effects of Diesel Particulate Filter
compliance costs by failing to with filtered breathing air, DPM filters, Systems on Air Quality and Personal
recommend major ventilation upgrades Exposure of Miners at Stillwater Mine
alternative fuels such as biodiesel, work Case Study: Production Zone,’’ Report to
for any mine in the study. They point practices and administrative controls, as
out that a total of only $234,000 was M/NM Diesel Partnership, March 26.
well as ventilation. Bugarski, A., Mischler, S., Noll, J.,
recommended in the study for minor With respect to ventilation upgrades Schnakenberg, G., Crum, M., and
ventilation upgrades, whereas the for the 31 mines, the study methodology Anderson, R. [2004] ‘‘An Evaluation of
operator of one of the mines in the study and the sources of all data we used in the Effects of Diesel Particulate Filter
estimated at least $4.4 million in performing the feasibility analyses were Systems on Air Quality and Personal
ventilation upgrades would be required thoroughly explained in the 31-Mine Exposure of Miners at Stillwater Mine
at that mine alone to attain compliance. Study final report. The process was Case Study: Production Zone,’’ Report to
In response to a similar comment on M/NM Diesel Partnership, April 1.
transparent and reproducible, and the
our 2003 NPRM, we noted in the Bugarski, A., Schnakenberg, G., Noll, J.,
study protocol was developed jointly by Mischler, S., Patts, L., Hummer, J.,
preamble to the 2005 final rule that we
MSHA, labor, and industry Vanderslice, S., Crum, M., and
did not specify any major ventilation
representatives. Anderson, R. [2003] ‘‘The Effectiveness
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Moyer C.F., et al. ‘‘Systemic Vascular Disease MSHA. Evaluation of Rentar in-line fuel PS&HTC-DD–06–606. Diesel Particulate
in Male B6C3Fl Mice Exposed to catalyst. MSHA Docket No.: BKG–100. Matter Study on December 13, 2005;
Particulate Matter by Inhalation: Studies MSHA. Executive Summary, Report on the dated February 9, 2006.
Conducted by the National Toxicology 31-Mine Study. Fletcher Mine, The Doe Run Company,
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30(4):427–34. Particulate Matter (DPM) Standard Assistance Visit, July 8, 2003; dated
MSHA. Summary of MSHA’s attendance at Compliance Guide. Posted 08/05/03. September 4, 2003.
the Chicago Section of the Society for Available from: http://www.msha.gov/ Georgetown Mine, Nally and Gibson,
Mining, Metallurgy and Exploration REGS/COMPLIAN/PPM/PMVOL4C.HTM. Georgetown, Kentucky, Compliance
Assistance Visit, May 7, 2003; dated Maysville Mine, Carmeuse North America, Compliance Assistance Visit, November
August 15, 2003. Inc., Maysville, Kentucky, PS&HTC–DD– 18, 2003; dated February 18, 2004.
Governeur Talc Company, Inc., No. 4 Mine, 03–311, Diesel Particulate Table Rock #3 Mine, Table Rock Asphalt
Lewis County, New York, Diesel Concentrations from Diesel Particulate Construction Company, Inc., Stone
Particulate Compliance Assistance Matter Studies, February 4–6, 2003 and County, Missouri, Diesel Particulate
Survey, June 18, 2003; dated July 3, April 1–3, 2003; dated August 29, 2003. Compliance Assistance Visit, November
2003. Maysville Mine, Carmeuse North America, 19, 2003; dated February 18, 2004.
Greens Creek Mine, Kennecott Minerals, Inc., Maysville, Kentucky, PS&HTC–DD– Torrance Mine, Hanson Aggregates PMA,
Juneau, Alaska, January 22–30, 2003; 04–416, Diesel Particulate Inc., Torrance, Westmoreland County,
dated June 17, 2003. Concentrations from Diesel Particulate Pennsylvania, PS&HTC–DD–06–603,
Greer Limestone Mine, Greer Limestone Matter Studies, January 6–7, 2004, and Diesel Particulate Matter Study on
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Diesel Particulate Compliance Assistance Meikle Mine, Barrick Goldstrike Mines, Inc., 2005.
Survey, September 16, 2003; dated Carlin, Nevada, PS&HTC–DD–05–512, Turquoise Ridge Mine, Placer Turquoise
December 2, 2003. Diesel Particulate Matter Compliance Ridge, Inc., Golconda, Nevada, PS&HTC–
Hampton Corners Mine, American Rock Salt Assistance Visit, October 28, 2004; dated DD–05–511, Diesel Particulate Matter
Company LLC, Livingston County, New November 23, 2004. Compliance Assistance Visit, on October
York, Diesel Particulate Compliance Midas Mine, Newmont Midas Operations, 27, 2004; dated November 23, 2004.
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2004; dated May 14, 2004. Diesel Particulate Matter Compliance Aggregates, Diesel Compliance
Hampton Corners Mine, Martin Marietta Assistance Visit, October 26, 2004; dated Assistance Survey, September 9, 2003;
Materials, Inc., Livingston County, New November 23, 2004. dated October 14, 2003.
York, PS&HTC–DD–04–422, Murray Mine, Queenstake Resources, U.S.A., Winfield Lime and Stone Company, Inc.,
Environmental Diesel Particulate Matter Inc., Elko, Nevada, September 15, 2004; Cabot, Butler County, Pennsylvania,
Investigation, March 23 and 24, 2004. dated October 28, 2004. Diesel Particulate Compliance Assistance
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Kerford Limestone Mine, Kerford Limestone PS&HTC–DD–03–320, Diesel Particulate Underground Metal and Nonmetal
Company, Weeping Water, Nebraska, Compliance Assistance Visit, May 21, Mines,’’ June 3, 2002.
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Lyons, Kansas, Diesel Particulate Concentrations from Diesel Particulate the 31-Mine Study) January 6, 2003.
Compliance Assistance Visit, September Matter Studies, June 10–11, 2003–July Nikula K.J. ‘‘Rat Lung Tumors Induced by
9, 2003; dated November 3, 2003. 29–30, 2003; dated August 29, 2003. Exposure to Selected Poorly Soluble
M&M Lime Company, Inc. Mine, Sully Mine, Martin Marietta Materials, Inc., Nonfibrous Particles,’’ Inhal Toxicol,
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XV. Regulatory Text
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Proceedings of 8th International Mine minerals.usgs.gov/minerals/pubs/ for Mine Safety and Health.
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Cancer in the Trucking Industry: Summaries, Stone (Crushed), http://
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Assessment, 34:220–228, 1998. commodity/stone_crushed/
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Mudway I., Soderberg M., Blomberg A., U.S. Geological Survey Mineral Commodity
STANDARDS—UNDERGROUND
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continues to read as follows:
humans exposed to diesel.’’ Eur Respir J Summaries, Lead, http:// Authority: 30 U.S.C. 811 and 813.
(1):82–86. minerals.usgs.gov/minerals/pubs/
Snedecor and Cochran, Statistical Methods, commodity/lead/lead_mcs06.pdf. ■ 2. Section 57.5060 is amended by:
7th Ed., pp 290–291. Blackwell Van Zijverden M., et al. ‘‘Diesel Exhaust, ■ A. Revising paragraph (b);
Publishing Professional, 2121 State Carbon Black, and Silica Particles ■ B. Removing (c)(3)(i); and
Avenue, Ames, Iowa 50014. 1989. Display Distinct Th1/Th2 Modulating ■ C. Redesignating paragraphs (c)(3)(ii),
Sun, Qinghua. et al., ‘‘Long-Term Air Activity,’’ Toxicol Appl Pharm, 2000 Oct (c)(3)(iii), and (c)(3)(iv) as (c)(3)(i),
Pollution Exposure and Acceleration of 15; 168:131–139. (c)(3)(ii), and (c)(3)(iii) respectively.
The revision reads as follows: section. When controls do not reduce a (6) The miner must be reevaluated
miner’s DPM exposure to the PEL, when the mine operator has reason to
§ 57.5060 Limit on exposure to diesel controls are infeasible, or controls do believe that conditions have changed
particulate matter.
not produce significant reductions in which could adversely affect the miner’s
* * * * * DPM exposures, controls must be used ability to wear the respirator.
(b)(1) Effective May 20, 2006, a to reduce the miner’s exposure to as low
miner’s personal exposure to diesel (7) Upon written notification that the
a level as feasible and must be PLHCP has determined that the miner is
particulate matter (DPM) in an supplemented with respiratory
underground mine must not exceed an unable to wear a respirator, including a
protection in accordance with PAPR, the miner must be transferred to
average eight-hour equivalent full shift § 57.5005(a), (b), and paragraphs (d)(1)
airborne concentration of 308 work in an existing position in an area
through (d)(8) of this section. of the same mine where respiratory
micrograms of elemental carbon per * * * * *
cubic meter of air (308EC µg/m3). protection is not required. The miner
(3) The mine operator must provide a must be transferred within 30 days of
(2) Effective January 20, 2007, a confidential medical evaluation by a
miner’s personal exposure to diesel the final determination by the PLHCP.
physician or other licensed health care
particulate matter (DPM) in an (i) The miner must continue to receive
professional (PLHCP), at no cost to the
underground mine must not exceed an compensation at no less than the regular
miner, to determine the miner’s ability
average eight-hour equivalent full shift rate of pay in the classification held by
to use a respirator before the miner is
airborne concentration of 350 that miner immediately prior to the
required to be fit tested or to use a
micrograms of total carbon per cubic transfer.
respirator at the mine. If the PLHCP
meter of air (350TC µg/m3). determines that the miner cannot wear (ii) Increases in wages of the
(3) Effective May 20, 2008, a miner’s a negative pressure respirator, the mine transferred miner must be based upon
personal exposure to diesel particulate operator must make certain that the the new work classification.
matter (DPM) in an underground mine PLHCP evaluates the miner’s ability to (8) The mine operator must maintain
must not exceed an average eight-hour wear a powered air purifying respirator a record of the identity of the PLHCP
equivalent full shift airborne (PAPR). and the most recent written
concentration of 160 micrograms of total (4) The mine operator must provide determination of each miner’s ability to
carbon per cubic meter of air (160TC µg/ the miner with an opportunity to wear a respirator for the duration of the
m3). discuss their evaluation results with the miner’s employment plus six months.
* * * * * PLHCP before the PLHCP submits the * * * * *
■ 3. Effective August 16, 2006, § 57.5060 written determination to the mine
is amended by revising paragraph (d) operator regarding the miner’s ability to ■ 4. Section 57.5075 is amended by
introductory text and adding paragraphs wear a respirator. If the miner disagrees revising paragraph (a) and paragraph
(d)(3) through (d)(8). with the evaluation results of the (b)(3) to read as follows:
PLHCP, the miner may submit within 30
§ 57.5060 Limit on exposure to diesel § 57.5075 Diesel particulate records.
days additional evidence of his or her
particulate matter. medical condition to the PLHCP. (a) The table entitled ‘‘Diesel
* * * * * (5) The mine operator must obtain a Particulate Matter Recordkeeping
(d) The mine operator must install, written determination from the PLHCP Requirements’’ lists the records the
use, and maintain feasible engineering regarding the miner’s ability to wear a operator must maintain pursuant to
and administrative controls to reduce a respirator, and the mine operator must §§ 57.5060 through 57.5071, and the
miner’s exposures to or below the assure that the PLHCP provides a copy duration for which particular records
applicable DPM PEL established in this of the determination to the miner. need to be retained.
TABLE 57.5075(a).—DIESEL PARTICULATE RECORDKEEPING REQUIREMENTS

Section
Record Retention time
reference
1. Approved application for extension of time to comply with exposure lim- § 57.5060(c) Duration of extension.
its.
2. Identity of PLHCP and most recent written determination of miner’s abil- § 57.5060(d) Duration of miner’s employment plus 6 months.
ity to wear a respirator.
3. Purchase records noting sulfur content of diesel fuel ................................ § 57.5065(a) 1 year beyond date of purchase.
4. Maintenance log ......................................................................................... § 57.5066(b) 1 year after date any equipment is tagged.
5. Evidence of competence to perform maintenance .................................... § 57.5066(c) 1 year after date maintenance performed.
6. Annual training provided to potentially exposed miners ............................ § 57.5070(b) 1 year beyond date training completed.
7. Record of corrective action ........................................................................ § 57.5071(c) Until the corrective action is completed.
8. Sampling method used to effectively evaluate a miner’s personal expo- § 57.5071(d) 5 years from sample date.
sure, and sample results.
(b) * * * information pertains to the miner or record at no cost, and any additional
(3) An operator must provide access former miner. The operator must copies at reasonable cost.
to a miner, former miner, or, with the provide the first copy of a requested * * * * *
miner’s or former miner’s written [FR Doc. 06–4494 Filed 5–17–06; 8:45 am]
consent, a personal representative of a
BILLING CODE 4510–43–P
miner, to any record required to be
maintained pursuant to § 57.5071 or
§ 57.5060(d) to the extent the

Rule: Metal and Nonmetal Mine Safety and Health: Underground Mines&#8212 Diesel Particulate Matter Exposure of Miners

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Rule: Metal and Nonmetal Mine Safety and Health: Underground Mines&#8212 Diesel Particulate Matter Exposure of Miners

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Thursday,

May 18, 2006

DEPARTMENT OF LABOR EFFECTIVE DATE: This final rule is A. PEL § 57.5060(b)

OC ...................................................................... organic carbon.

notices in the Federal Register. One Proposed Rulemaking (ANPRM) (67 FR

the final DPM limit, technological National Institute for Occupational

Estimated 8-hour Full Shift Equivalent

Metal Stone Trona Other

No. of samples ......................................................................................................................... 116 105 54 83

95% LCL ........................................................................................................................... 522 394 75 306

Estimated 8-hour Full Shift Equivalent DPM Concentration ( µg/m3)

No. of Samples ............................................................................ 284 689 196 25 1,194 1,169

allergenic responses); (2) premature The additional scientific literature

TABLE IV–3.—STUDIES OF HUMAN RESPIRATORY AND IMMUNOLOGICAL EFFECTS

asthma. The 2001 risk assessment and IV–4, provides an overview of

TABLE IV–4.—REVIEW ARTICLES ON RESPIRATORY AND IMMUNOLOGICAL EFFECTS

TABLE IV–5.—STUDIES ON LUNG CANCER EFFECTS

TABLE IV–6.—STUDY ON TOXICOLOGICAL EFFECTS OF DPM EXPOSURE

be temporarily debilitating. Evidence also

Säverin et al. (1999):

occur, but where the user wishes to non-compatible components can be

significant DPM reductions would not

C (µg /cm 2 ) ∗ A (cm 2 ) ∗ 1, 000 L/m3

Geological Survey on the industry-wide compliance existed, and to provide a

regeneration should be limited only to fuel consumption, and the cost of

indicated that ten filter systems and four

mine operators to successfully complete an optimally deployed active

asked for information on an appropriate analysis. control technology. We have reviewed

industry to continue to make progress in They believe that it would be more

transfer rights for miners. We worker while wearing such a device.

respirators in general, but believed that tests, during pre-employment

incorporate an active regeneration temperatures. information as to the magnitude of these

public comment concerning the on children. Accordingly, Executive

and respirable samplers for collecting maintenance. Only one commenter

and to provide a framework for costing

TABLE 57.5075(a).—DIESEL PARTICULATE RECORDKEEPING REQUIREMENTS

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