[[pp. 5675-5706]] Diesel Particulate Matter Exposure of Underground Coal Miners

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 19, 2001 (Volume 66, Number 13)]
[Rules and Regulations]
[Page 5675-5706]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja01-14]

[[Continued from page 5674]]

[[Page 5675]]

To demonstrate compliance with the dpm rule, the mine operator need
only add a filter kit supplied by the equipment manufacturer. Filter
kits which have been evaluated for permissibility are available from
machine manufacturers for approximately 222 out of the 481 permissible
machines that are not already equipped with filters. In the event that
a kit is not available for a particular machine, the mine operator may
work with the machine manufacturer to adapt an existing kit, or
fabricate a special kit. MSHA will expedite the evaluation of field
modifications submitted by mine operators to add such kits.
One commenter stated that MSHA has not done enough with its
knowledgeable personnel and research facility, and indicated that
industry would welcome the opportunity to develop with MSHA research
and development programs in the area of dpm filtration. MSHA has worked
with NIOSH, labor representatives, and the industry in the past and is
committed to continue to work with these groups on projects which
promote a safer mining environment. The Diesel Toolbox arose out of
just such an effort, as described in part II. But the Agency must also
act to require the use of existing technology when it determines that
miners are at significant risk of a material impairment to their
health.
One concern expressed by the mining community about more extensive
reliance upon paper filtration systems is the increased potential for
fires if, for example, water scrubbers run dry and the exhaust gases
then become hot enough to ignite the paper filters. Several commenters
expressed concerns about reports of fires that occurred on permissible
diesel powered equipment on which paper particulate filters had been
installed. Commenters told of fires on equipment in both western and
eastern mines and further stated that the fires were the result of a
lack of maintenance. While MSHA is concerned about all fires in
underground mines, fires on permissible equipment are of particular
concern because that equipment may operate in areas of the mine where
methane may be present.
Shortly after particulate filters were introduced, MSHA received
reports of a filter fire in an underground mine and at a surface
facility of a second mine. In the latter incident, the machine operator
was unaware that a filter had been installed and continued to operate
the equipment on the surface without water in the water scrubber. After
looking into the incidents, MSHA issued a Program Information Bulletin
informing the mining community of the importance of maintaining those
components of permissible diesel power packages that limit the exhaust
gas temperature below 170 degrees Fahrenheit. This PIB, P92-17, was
published on October 23, 1992, and was given wide distribution
throughout the country.
Until the public hearings on this rule, MSHA was not aware of any
additional filter fires. MSHA has no additional information concerning
incidents of fires in mines involving permissible diesel equipment with
particulate filters. Maintenance personnel at one mine had related that
several filters had been exposed to high exhaust gas temperatures and
that the filter media had started smoldering. The smoldering had been
accompanied by significant amounts of smoke which alerted the equipment
operators. The equipment operators removed the filters and extinguished
the smoldering material before any actual fire broke out. According to
mine maintenance personnel, these incidents had occurred several years
ago, and since improved maintenance procedures were established and
additional training had been provided, no additional problems had been
noted.
MSHA has continued to investigate this matter because of the
potential consequences of a filter fire underground. MSHA is aware of a
filter media used in Australia for the same application on permissible
diesel equipment. The media is called Filtrete and is manufactured by
3M. The media is polypropylene and when exposed to a heat source, the
media reportedly melts away rather than burns. Reportedly, the filter
media is as effective at removing diesel particulate as the filters
currently used on diesels with water scrubber systems. MSHA is in
contact with the filter manufacturer, and with Australian mine
regulatory authorities, and mine operators concerning their experience
with the filters. MSHA has also reviewed the flammability
characteristics of the filter media used on dry type permissible
diesels. One such media is a fiberglass/polyester fabric which seems to
have flammability characteristics similar to the Filtrete media.
As noted by at least one commenter, observing the recent diesel
equipment maintenance requirements should minimize the already small
potential for any problems. Nevertheless, MSHA will continue to look at
alternative media, if for no other reason that to ascertain if they
perform better than paper filters in removing dpm from the engine
emissions.
Although operators can comply with this requirement by using a
paper filter, MSHA would like to encourage the introduction of cleaner
engines in permissible equipment. The rule does not deal directly with
factors which may be discouraging operators from using engines which
incorporate the latest technologies to reduce dpm emissions. In order
for an engine to be used in underground coal mines in permissible
equipment, the engine has to be approved by MSHA for permissible
applications, and this process operates at the initiative of engine
manufacturers rather than mine operators. MSHA notes that even though
engine manufacturers are producing significantly cleaner diesel
engines, engine manufacturers have not submitted applications to MSHA
to have these newer engines approved for permissible applications prior
to this final rule. There are 528 permissible diesel powered machines
in underground coal mines. The majority of the permissible machines use
the Caterpillar 3306 PCNA, Caterpillar 3304 PCNA, or the Deutz-MWM 916-
6 diesel engines as stated previously. These engines are of older
technology design and produce almost 10 times the dpm emissions as
modern engines. However, due to the costs of obtaining approval of an
engine for permissible applications, which are borne by the applicant,
and low sales volumes in underground coal for permissible machines,
engine manufacturers are understandably reluctant to submit new
technology engines for approval as permissible.
MSHA is developing programs that would facilitate the availability
of engines that utilize the latest technologies to reduce gaseous and
particulate emissions for use in permissible equipment. Current engine
designs that utilize low emissions technologies are currently approved
by MSHA in nonpermissible form. Particulate emissions are currently
being determined by third parties testing under 30 CFR, Part 7. MSHA is
in the process of purchasing an engine particulate testing system. Once
this system is installed, MSHA will be able to facilitate testing and
defer some of the cost of diesel engine particulate emission testing at
its Approval and Testing Center. MSHA is considering a number of other
programs that could aid the industry with emission tests.
One of the programs that MSHA is considering would follow the
precedent established in the recently published diesel equipment rule.
To facilitate compliance with this dpm rule, MSHA is considering
funding the additional emissions testing needed to gain approval as
permissible, certain

[[Page 5676]]

previously approved, non-permissible engines that utilize low emissions
technology engines. Additionally, MSHA is considering waiving the
normal fees that the Agency charges for the administrative and
technical evaluation portion of the approval process.
Alternatively, MSHA may relax, as an interim measure, the
requirement that engine approvals be issued only to engine
manufacturers. This requirement, stated in part 7, is intended to
ensure that the party to whom the engine approval is granted has the
ability to ensure that the engine is manufactured in the approved
configuration. MSHA is considering a program in which an equipment
manufacturer may utilize an engine, approved by MSHA as nonpermissible,
in a permissible power package. MSHA would ensure that the additional
emissions tests required for permissible engines are conducted as part
of the power package approval process. The use of an engine previously
approved as nonpermissible is a critical element of the program. For
those engines, the engine manufacturer has already made the commitment
to manufacture the engine in an approved configuration. The permissible
configuration would be the same as the nonpermissible configuration.
Provisions of the two programs could be combined. MSHA will solicit
input from the mining community as it continues to develop these
program concepts.
In response to comments, MSHA also took another look at the other
components added to diesel engines of permissible equipment. One such
control on permissible equipment is the device used to cool the hot
gases emitted by diesel engines to the temperatures required for
permissible applications. Specifically, in order to use a paper filter,
a means of cooling the exhaust gas must be installed upstream of the
paper filter to reduce the exhaust temperature below the ignition
temperature of filter media. This is accomplished on permissible
machines with either a water scrubber or a heat exchanger. The water
scrubber allows the water to contact the exhaust, thus cooling the
exhaust to less than 170 deg. F. The heat exchanger cools without
direct contact between water and the exhaust, thus providing a dryer
exhaust. Research conducted by others has shown that water scrubbers
can lower dpm concentrations by 20-30%. The Southwest verification
showed that a heat exchanger can remove approximately 9% of the dpm.
Either cooling method would reduce dpm to some degree; however MSHA is
confident, and the SwRI tests clearly showed, that the majority of the
filtering comes from the paper filter.
One commenter asserted that the most important emissions control
that could be placed on a piece of diesel equipment is a catalytic
converter. While there is some evidence in the record suggesting that
OCCs can remove up to 20% of dpm emissions, this commenter's assertions
about the importance of this control appear to stem from the view that
the hazards to miners from diesel emissions come primarily from diesel
gases rather than the particulate emissions. As indicated in MSHA's
risk assessment, the risks which MSHA is acting to prevent in this case
are from particulate emissions. Catalytic converters alone could not
reduce dpm emissions from permissible equipment to levels that MSHA
deems necessary.
Time frames for implementation. Commenters were also concerned that
the 18-month time frame established in the proposed rule to bring
existing fleets into compliance would not be feasible.
In part, these concerns stemmed from technological feasibility--
that controls did not yet exist which would be available by the
required time. Also, these concerns related to economic feasibility. As
noted above, some commenters thought they would have to replace wet
systems with a dry system package in order to comply with the proposed
rule; such a changeover would be expensive and, given the amount of
work involved, take time. Others were concerned about the availability
of filtration systems that would fit existing systems and the time
necessary to develop or rig systems to fit on a variety of existing
machines underground.
The evidence discussed above addresses these concerns. MSHA is not
pushing technology with the proposed emissions limit; rather, the
technology is already here and for many pieces of equipment already in
kit form for ready installation. The costs to the industry as a whole
of adding paper filter to the permissible fleet after 18 months are
economically feasible as well.
Moreover, the final rule requires that a permissible piece of
equipment being ``introduced'' underground for the first time 60 days
after this rule is promulgated will have to be so equipped.
MSHA means by ``introduced'' any equipment added to the mine's
diesel equipment inventory. That inventory, and any changes to it, must
be recorded by an operator as a result of this rulemaking and be
maintained pursuant to new 30 CFR 72.520. ``Introduced'' means newly
purchased equipment, used equipment, or a piece of equipment receiving
a replacement engine with a different serial number than the engine it
is replacing, including engines or equipment coming from one mine into
another. It does not include a piece of equipment whose engine was
previously part of the mine's inventory and rebuilt.
As a result of the information discussed above, MSHA has determined
that this requirement is both technologically and economically feasible
to require any newly introduced equipment to have the filter in place
(see MSHA's REA for additional information). MSHA recognizes that in
some areas, longwall moving equipment may be shared among mines, and
that in one or two cases a scheduled longwall move could be impacted by
this effective date; however, MSHA has concluded that by working with
machine manufacturers, operators who find themselves in such a
situation can avoid any disruptions.
72.501 Emission Limits for Nonpermissible Heavy Duty Diesel Powered
Equipment, Generators, and Compressors
Organization. MSHA proposed limits on the dpm emitted by
nonpermissible heavy-duty vehicles as part of 30 CFR 72.500, but in the
final rule MSHA moved these requirements to a new 30 CFR 72.501. Also,
this section now contains requirements for two types of light-duty
equipment whose operating characteristics produce large quantities of
dpm.
Summary of final rule. In the final rule, MSHA has adopted a
machine emission limit for heavy duty diesel powered equipment, as
defined by Sec. 75.1908(a), just as it is doing with permissible
equipment pursuant to Sec. 72.500 of this final rule. It also applies
this limit to generators and compressors.
Paragraph (a) specifies a machine emission limit for dpm at 5.0 gm/
hr for heavy-duty equipment, generators or compressors introduced into
an underground area of an underground coal mine more than 60 days after
the date of publication of this final rule. ``Introduced'' means any
equipment added to the mine's diesel equipment inventory.
Paragraph (b) provides that the fleet of such equipment already in
a mine must reach a machine emission limit for dpm at 5.0 gm/hr within
30 months.
Paragraph (c) provides that the emission limit for all such
equipment is further reduced to 2.5 gm/hr after 4 years.
Paragraph (d) exempts from the requirements of the rule any
generator

[[Page 5677]]

or compressor that discharges its exhaust directly into intake air that
is coursed directly into a return air course, or discharges its exhaust
directly into a return air course.
Why dpm emissions from heavy-duty equipment, generators and
compressors need to be controlled.
As discussed in connection with Sec. 72.500, MSHA determined that
it could not establish a dpm concentration limit for underground coal
mines, and therefore needed to focus its attention on the control of
dpm emissions from specific types of equipment.
The preamble accompanying the proposed rule also explained why the
agency was proposing to limit the emissions from heavy-duty equipment
in particular. MSHA discussed earlier in the permissible section that
engines used in permissible equipment generated large quantities of
dpm. Many pieces of heavy-duty equipment utilize the same engines as
permissible equipment and consequently produce similar high levels of
dpm. MSHA closely examined the dpm emission rates from engines used in
other heavy-duty equipment and found them to be as high as those rates
found in permissible equipment. Furthermore, heavy-duty equipment is
used in areas of the mine where the ventilation quantities may be less
than those provided where permissible equipment is used. Equipment that
moves long wall components is known to work at a high duty cycle, in
close proximity to miners, and in areas of the mine where there are
frequent ventilation interruptions. Numerous commenters stated that
diesel emissions continue to be the cause of air quality problems
during long wall moves. Even though newer engines are being added to
the heavy duty fleet, additional controls are needed to further reduce
the dpm levels to which miners are exposed. As shown in table IV-1,
engines like the Deutz BF4M1012EC rated at 113hp and the Detroit Diesel
Series 40 DDEC rated at 230 horsepower are low emission engines that
have been designed to meet current EPA standards. However, the gm/hr
levels are still higher than the MSHA standards and would require
aftertreatment controls.
The proposed rule did not cover generators and compressors.
However, the extension of the heavy duty requirements to generators and
compressors stems directly from a question MSHA placed before the
mining community. In reviewing alternative approaches considered by the
Agency, the preamble of the proposed rule (63 FR 17564) noted that
light-duty equipment does contribute to the total particulate
concentration in underground coal mines, and explored the possibility
of requiring light-duty equipment to be treated like permissible and
heavy-duty equipment. The agency noted that it had tentatively
concluded that requiring controls for the whole light duty fleet may
not be feasible for the underground coal sector at this time. In this
regard, it should be noted that light-duty equipment in underground
coal mines makes up approximately \2/3\ of the whole fleet: 2,030
engines out of the total MSHA inventory of 3121.
The Agency stated that it welcomed ``information about light-duty
equipment which may be making a particularly significant contribution
to dpm emissions in particular mines or particular situations, and
which is likely to continue to do so after full implementation of the
approval requirements of the diesel equipment rule.'' The Agency went
on to say that: ``MSHA will consider including in the final rule
filtration requirements that may be necessary to address any such
identified problem.'' This discussion was repeated in the section by
section review of the proposed rule. (63 FR 17556) The Agency
reiterated its request for comments in this regard in its Questions and
Answers (Q and A #10, 63 FR 17499).
As discussed below, based on the record, MSHA has concluded that
generators and compressors, while considered light-duty equipment for
purposes of the diesel equipment rule, in fact have operating
characteristics that produce large quantities of dpm, and should be
controlled in the same manner as heavy-duty equipment.
Numerous commenters spoke on the issue of whether light-duty
equipment, as defined by the diesel equipment rule, should be subject
to dpm emissions standards. However, the record is divided between
those who asserted that this type of equipment really operates much
like heavy-duty equipment--i.e., works many hours during a shift at
high loads--and those who asserted that the equipment is normally used
at low loads and very little during the day. Very limited data was
provided by proponents of either position; not enough for MSHA to make
a clear determination of which position to adopt when looking at light-
duty equipment as a whole.
Based on the record, MSHA believes that light-duty equipment is
used in a variety of ways dependent on individual mine situations. The
engine loading dependent on mine conditions can play an important role
in the emissions from the diesel. Two different mining conditions with
identical equipment could experience vastly different emission levels
from these engines due to the engine load that must be produced to
complete the work. Therefore the commenters may be correct for their
individual mines where the light-duty equipment must work at higher
engine loads to complete the work. However, other miners with identical
equipment may not experience the same degree of engine load which could
result in lower levels of exhaust emissions.
However, the situation becomes much clearer when the focus narrows
to specific types of light-duty equipment. For example, one commenter
noted that some light-duty equipment (such as air compressors) which
was exempt from requirements in the proposed rule, emitted high levels
of dpm as determined by emission analyzers. Another commenter stated
that larger engines that have heavy duty loads produce more dpm per
hour and should be controlled. The commenter specifically recommended
an OCC, adequate ventilation, and soot (dpm) filters.
After a review of the information available, MSHA has concluded
that air compressors and generators emit more dpm in the mine
environment than other light-duty equipment because their engines are
operated continuously under high-load conditions when they are running.
Generators are designed to run under a loaded condition to produce
electricity and air compressors work at full load to produce compressed
air. In both cases, these engines are operating at a high load, which
contributes to high dpm emissions. Based on the information provided by
a commenter that the gaseous emissions levels from air compressors were
high, this would correlate with high engine load and also would be
related to higher dpm emissions. In addition, generators and
compressors can use very large horsepower engines, i.e. above 200
horsepower; by comparison, permissible equipment generally does not
exceed 150 horsepower. In fact, some of the highest horsepower engines
in underground coal mines are in generators and compressors. For
example, in Table IV-1 engines that are known to be used in generators
and compressors are represented by approval numbers B018, B037, and
B036 and have horsepower ratings of 500, 275, and 220, respectively.
Accordingly, in the final rule MSHA requires that air compressors and
the generators meet the same engine emission limits as established for
heavy-duty equipment. MSHA's inventory indicates that there are 66 air

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compressors and generators out of a total of 3,121 pieces of diesel-
powered equipment in underground coal mines--about 3% of the 2,096
light duty units.
Why the final rule uses a machine-based emission limit instead of
requiring for a high-efficiency filtration system.
The proposed rule would have required mine operators by 30 months
from the date of publication of the final rule to install, on
nonpermissible heavy-duty vehicles, a system capable of removing, on
average, at least 95% of dpm by mass.
The use of a machine emissions limit in the final rule stems
directly from an alternative which MSHA placed before the mining
community in the preamble to the filter-efficiency based proposed rule.
In that preamble, the Agency requested comment on an alternative
approach that would establish a machine based limit on emissions in
lieu of a filter efficiency requirement (see, e.g., 63 FR 17556,
17563). In fact, a separate ``Question and Answer'' was included in the
preamble to highlight this alternative, immediately after the
description of the proposed rule. 63 FR 17501, 17653. Based on the
record, MSHA has concluded that the original proposal had deficiencies
(such as a credit for clean engines and a variety of filter
efficiencies) which are avoided by the alternative approach.
As explained in connection with Sec. 72.500, based on the record
developed, the Agency concluded that a machine based emissions limit
avoids a number of problems with the approach initially proposed. The
explanation provided in that discussion as to (1) why MSHA moved to a
machine based emissions limit for permissible equipment; (2) why it
decided not to make adjustments for ventilation or permit an exemption
for enclosed cabs; and (3) the flexibility in choice of controls
provided to operators, is fully applicable for heavy-duty equipment,
and accordingly is not repeated.
Why MSHA concluded that the emissions limit for heavy-duty
equipment, generators and compressors should ultimately be 2.5 grams
per hour. As with permissible equipment, the emissions limit for this
type of equipment was determined with reference to technological and
economic feasibility. As is evident from the final rule, the emissions
limit is 2.5 grams/hour, the same as the permissible limit; and, like
permissible equipment, 2.5 grams/hour represents a 95% reduction in the
dpm emissions of the engine that produced the most dpm emission in this
category.
MSHA wishes to emphasize that despite this fact, the limit in the
final rule was not merely a determination to use the proposed rule in
another form, or to have an equivalency between permissible equipment
and this equipment. Rather, once MSHA decided to use an emissions limit
approach, it reviewed the record to determine what could feasibly be
achieved with the controls available for this type of equipment.
Instead of using paper filters as with permissible equipment, this kind
of equipment would generally be filtered by ceramic or other hot gas
filters--or systems that lower the temperature of the emissions so that
paper filters can be used. Ceramic filters cost more than paper
filters, require regeneration, and have certain other associated costs.
On the other hand, unlike the permissible fleet, the fleet of heavy-
duty equipment, generators and compressors has many choices of approved
engines available for use, many of them modern technology engines with
significantly lower emission rates than the engines currently utilized
in this equipment.
Table IV-1 shows the current dpm emissions from MSHA's inventory of
heavy-duty equipment, generators and compressors based on engine
approval data, and shows the filter efficiency required to reduce those
emissions to the interim and final limits required by the final rule.
Based on information about the current efficiencies of hot gas filters
(discussed in the next section), MSHA believes that a significant
percentage of the current fleet can immediately meet a limit of 2.5
grams/hour with such filters alone--and all of the current fleet,
except equipment powered by the Caterpillar 3306PCTA, can move
immediately to meet a limit of 5.0 grams/hour with filters of only that
efficiency. And even in the highly unlikely case that filter efficiency
does not continue to improve to meet new demands in Europe and for over
the road hauling in the United States, operators can bring the
remainder of the fleet into compliance with new engines and filters
with present day performance capabilities. In fact, the only reason for
the two-tiered approach adopted in the final rule is to ensure that
implementation of the rule will be economically feasible.
Some commenters stated that the proposed rule is technology forcing
and would require manufacturers to conduct approval tests to market new
products, although some commenters who made this observation conceded
that MSHA had the legal right to force technology. Another commenter
stated that all heavy-duty equipment would require heat exchangers or
equivalent means to allow for the use of paper filters since these, in
the views of that commenter, appear at present to have higher filter
efficiencies.
These comments have some credibility with respect to the original
proposal, which would in essence have required the engines that produce
the most dpm emission in this category to achieve a limit of 2.5 grams/
hour with filters alone; although as noted above, there are already
some hot gas filters that are approaching this result. However, the
machine emission limits set forth in this section are clearly feasible
with current technology, as cleaner, approved nonpermissible engines
are available should a piece of equipment not be able to reduce dpm to
the required limit with filter alone.
A number of commenters argued that MSHA should not establish a rule
which might rely heavily on the availability of ceramic filters because
such systems have not performed well from either a practical or
efficiency standpoint. MSHA has been aware that in many cases the
industry, especially the metal/nonmetal mining sector, has had problems
with the use of ceramic filters. However, these problems were reported
over 10 years ago when the ceramic filter technology was originally
being developed for the on-highway truck engines. When the highway
truck sector did not need ceramic traps to comply with the on-highway
EPA regulations, significant work on these trap systems was abandoned
for the on-highway sector.
More recently, the European directive requiring filters on diesels
in confined areas, Canadian mines research with dpm filters, and the
continued US efforts to reduce dpm emissions in the environment, have
led filter manufacturers to improve the performance and reliability of
ceramic filters. Some M/NM mines have reported favorably on the use of
ceramic traps. Aftertreatment control vendors, mine operators and VERT
have reported filter life of over 8000 hours. After a review of the
information in the record in this regard, as was described in more
detail in section 6 of Part II, MSHA has concluded that the more recent
work with ceramic traps has shown they are feasible for use by the
underground coal mining industry.
How the mining community can go about implementing this
requirement, and how MSHA can help. While the rule provides flexibility
of controls to reach the required limit (controls that reduce engine
emissions, that is), most operators are going to utilize hot gas
(ceramic) filters to comply. In some

[[Page 5679]]

cases, however, installation of a cleaner engine or the DST
or similar modified dry system (one without the permissibility
components) may be more cost effective, and will be permitted under
this machine based rule. Therefore to determine whether a particular
machine is in compliance, MSHA will generally need to know the
emissions from the engine in the equipment and the filtration
efficiency of the filter.
The dpm emission rate of an engine will be established by the dpm
concentration determined during the engine approval process. The engine
baseline dpm data for each MSHA approved non-permissible engine will be
posted on the MSHA homepage at http://www.msha.gov/S&HINFO/DESLREG/
1909a.HTM.
Unlike the situation at present with permissible engines, in which
none of the cleaner technology engines manufactured in recent years has
been submitted for approval for permissible use, engine manufacturers
have been submitting applications for approval of nonpermissible
engines which meet EPA standards for both on road and nonroad
applications. Thus, mine operators have the option of significantly
reducing dpm emissions from heavy-duty equipment, generators and
compressors by switching to cleaner approved engines. Moreover, MSHA is
planning to accelerate the process of approving such engines so as to
ensure that equipment of all sizes and shapes can utilize the cleanest
engines available.
MSHA is developing a program which will streamline the procedures
by which manufacturers of diesel engines intended for use in outby
areas of underground coal mines can gain Agency approval. The program
will draw on the EPA approval programs for engines used in off-road
applications. MSHA will continue to issue approvals for mining engines,
but the application process will be abbreviated. Many of the provisions
of part 7 are intended to ensure that engines continue to be
manufactured in the same configuration and with the same emissions as
the engine tested by MSHA. Procedures within the EPA approval programs
reach the same end. Additionally, EPA has the resources and the
regulatory authority to conduct an extensive quality assurance program
to monitor emissions from production engines.
In addition to streamlining the application process, MSHA will
establish a program under which the engine emission tests conducted for
EPA approval will satisfy the part 7 testing requirements. The test
cycles under which emissions are tested for both MSHA and EPA are
identical, and the gaseous emission results from the EPA tests can be
used to establish the ventilating air quantity that appears on the
engine approval plate and is referenced in mine ventilation
regulations. MSHA will announce the specifics of the program when it is
finalized.
As noted in the prior section, MSHA expects that most operators
will turn first to hot gas filters to reach the interim or even the
final limit. Technically, an operator using a commercial filtration
device would, upon a request from MSHA, have to provide evidence that
the device is capable of reducing the emissions of the machine on which
it is to be installed to the emission standard. The procedures by which
a mine operator will demonstrate compliance with the rule are described
in detail in the discussion of 30 CFR 72.503 of this part. However, the
particulate removal efficiency of many commercially available hot gas
filters is evaluated by VERT. VERT is a joint project of several
European regulatory agencies, and private companies involved in the
tunneling industry. VERT maintains facilities for the testing and
evaluation of diesel engine aftertreatment devices for use on equipment
used in tunneling. MSHA will accept dpm filtration efficiencies
determined by VERT under the provisions of 30 CFR 72.503(c) of this
rule.
VERT evaluates the filtration efficiency of candidate devices using
a diesel engine with an average dpm production of 0.08 gr/hp-hr. This
engine produces less dpm than the majority of engines approved by MSHA.
As further discussed in section 72.503, the test must be conducted on
an engine that emits no more dpm than the engine that the
aftertreatment device will be used on in the machine. This is to ensure
that ``dirty'' engines are not used to over estimate a filter
efficiency. The VERT engine used is considered a clean engine by
current production standards and clean when compared to many engines in
the current underground fleet. The assigned filter efficiencies from
VERT would not be considered over-rated and would be consistent with
expected efficiencies when used on current underground engines.
Consequently, the filter efficiency determined by VERT test can be used
to establish the machine dpm level in order to comply with
72.503(b)(i).
MSHA received some comments suggesting the agency could not rely
upon the most recent VERT test data (listed in Table II-4) because not
enough is known about how those results were derived. MSHA agrees that
more information about the test data would be useful; however, given
the purposes for which the agency is relying upon the data, the agency
believes the information it currently has on the test data are
adequate. This information is discussed in section 6 of Part II. The
VERT data is generated through procedures as stringent as those MSHA is
requiring in the tests which are being established in the final rule
for filters not tested by such an organization. While the results noted
in Table II-4 have not been incorporated into a published article and
has references that are in other sources, MSHA's review of other VERT
papers shows that VERT is using the same nomenclature in all their
reports and the pertinent information needed from the table is
available from these other VERT papers. The table shows VERT results on
filters tested ``new'' and after field test. MSHA is only concerned
with the ``new'' filter efficiency data for applying a filter
efficiency number to the baseline engine emission data in order to
determine if the machine meets the machine emission limit specified in
this final rule. The range of filter efficiencies is not critical since
the operator can choose a filter system based on the need for the
engine for each individual machine.
MSHA will maintain a list of dpm filtration devices and their
filtration efficiencies on its website at www.msha.gov to assist the
mining community. Where the particulate reduction capability of an
aftertreatment device is not known, the operator would have to have the
system tested at a laboratory capable of performing the tests as
described in 30 CFR 72.503 of this rule to obtain the necessary data.
However, in a majority of cases the mine operator will not be required
to submit any data nor have the aftertreatment device tested. Since
ceramic filters are used in general industry and automotive
applications worldwide, extensive information on filter efficiency is
available and a variety of hot gas filters are commercially available.
The two tier machine emission limits provide operators with a
choice when making initial control decisions--whether to select a
control that will bring the equipment into compliance with the interim
limit first, or whether to go ahead and purchase controls that will be
required in any event by the final emissions limit. MSHA envisions that
the mine operator will in most cases make a single decision as to the
options to select to bring the machine into compliance. If the machine
is old

[[Page 5680]]

and is expected to reach the end of its useful life in 4 years or less,
the mine operator may choose a less costly set of options with the
intention to scrap the machine when the lower emission level is
effective. However, if the machine has a life expectancy beyond four
years, then the mine operator may choose to install a filter system/
engine combination that will meet the 2.5 gm/hr standard immediately.
Moreover, MSHA has reviewed the VERT list and it identifies several
filter systems that can be purchased that have sufficient efficiency
ratings to meet the 2.5 gm/hr standard when matched to the majority of
the MSHA approved engines in heavy-duty equipment, generators and
compressors. MSHA anticipates that more such high efficiency filters
will become available before the final emissions limit must be reached.
Accordingly, some operators may be able to satisfy the requirements in
this fashion.
Yet another alternative that can currently enable heavy-duty
equipment to reach the 2.5 gm/hr final limit is the DST
system. Test data was submitted for the record showing an overall
system efficiency of greater than 95%. While more costly than hot gas
filters, this approach might in some cases be cheaper than a high
efficiency hot gas filter and a new engine.
The final rule prohibits any piece of nonpermissible heavy duty
diesel powered equipment, generator or compressor, from exceeding 5.0
grams per hour of diesel particulate emissions. MSHA believes that by
working with manufacturers of aftertreatment systems, filters can be
installed so that newly manufactured machines comply with this
requirement. MSHA expects that new equipment, or any equipment with an
expected service greater than four years will be provided with a filter
capable of meeting the 2.5 gm/hr machine standard.

Section 72.502 Requirements for nonpermissible light-duty diesel
powered equipment other than generators and compressors

Organization. The proposed rule did not contain specific provisions
for light-duty diesel powered equipment. However, in the preamble to
the rule, the agency asked the mining community if light-duty equipment
should be subject to provisions that would address dpm emissions. This
section is new in the final rule and is based on the large response
from the mining community to that question.
Summary of final rule. Paragraph (a) of this section provides that
light-duty equipment (other than generators or compressors, which are
covered by 30 CFR 72.501) introduced into an underground area of an
underground coal mine more than 60 days after the issuance of the final
rule cannot emit more than 5.0 grams/hour of dpm. MSHA means by
``introduced'' any equipment added to the mine's diesel equipment
inventory. That inventory, and any changes to it, must be recorded by
an operator as a result of this rulemaking and be maintained pursuant
to new 30 CFR 72.520. This includes newly purchased equipment, used
equipment, or a piece of equipment receiving a replacement engine with
a different serial number than the engine it is replacing, including
engines or equipment coming from one mine into another, but it does not
include a piece of equipment whose engine was previously part of the
mine's inventory and rebuilt. MSHA will exempt newly manufactured
light-duty equipment from meeting the requirements in 30 CFR 72.502, if
the equipment is received after the 60 day time frame as long as a mine
operator can present evidence that the equipment was ordered prior to
the date of publication of this final rule.
Paragraph (b) provides that an engine will be deemed to be in
compliance with this requirement if it meets or exceeds certain EPA dpm
emission requirements listed in Table 72.502-1 which appears in the
rule.
Paragraph (c) excludes any diesel-powered ambulance or fire
fighting equipment that is being used in accordance with the mine fire
fighting and evacuation plan from the requirements of this section.
Why the final rule covers newly introduced light-duty equipment.
The final rule's coverage of newly introduced light-duty equipment
stems directly from an alternative which MSHA placed before the mining
community in the preamble to the filter-efficiency based rule that was
proposed.
In reviewing alternative approaches considered by the Agency, the
preamble of the proposed rule (63 FR 17564) noted that light-duty
equipment does contribute to the total particulate concentration in
underground coal mines, and explored the possibility of requiring
light-duty equipment to be treated like permissible and heavy-duty
equipment. The agency noted that it had tentatively concluded that
requiring controls for the whole light duty fleet may not be feasible
for the underground coal sector at this time. In this regard, it should
be noted that this type of equipment in underground coal mines makes up
approximately \2/3\ of the whole fleet: 2096 engines out of the total
MSHA inventory of 3121.
The preamble further stated that the Agency welcomed ``information
about light-duty equipment which may be making a particularly
significant contribution to dpm emissions in particular mines or
particular situations, and which is likely to continue to do so after
full implementation of the approval requirements of the diesel
equipment rule''. As noted in connection with 30 CFR 72.501, the record
on this point led MSHA to treat light duty generators and compressors
the same way as heavy duty nonpermissible equipment in the final rule.
The preamble to the proposed rule also indicated MSHA's specific
interest in exploring whether it would be feasible to require controls
on just the new equipment being added to the light duty fleet. ``The
Agency would also welcome comment on whether it would be feasible for
this sector to implement a requirement that any new light-duty
equipment added to a mine's fleet be filtered.'' The Agency further
noted that limiting a filtering requirement to just this portion of the
light duty fleet was a different issue in terms of economic feasibility
than filtering the whole fleet. ``By way of rough cost estimate, if
turnover is only 10% a year, for example, the cost of such an approach
would be only about a tenth of that for filtering all light-duty
outby.'' 63 FR 17564. This discussion was repeated in the section by
section review of the proposed rule. (63 FR 17556) The Agency
reiterated its request for comments in this regard in its Questions and
Answers (Q and A #10, 63 FR 17499).
As noted in the discussion of 30 CFR 72.501 of this part, MSHA
received considerable comment on whether the light duty fleet as a
whole should be covered. In a significant number of mines, the light
duty fleet may work under heavy loads for considerable periods of time,
resulting in localized intensive exposures. But it would also appear
that in other mines this is not the case; moreover, many of the
experiences with localized exposures may have been due to maintenance
problems, as the diesel equipment rule with its requirements for
maintenance had yet to go into effect.
Also, many miners commented that large numbers of light-duty
equipment were in the same area of the mine on occasion and their
emissions were not adequately diluted by the ventilation air provided.
MSHA believes these comments were made based on experience gained
before the effective date of the ventilation requirements under the
diesel equipment rule.

[[Page 5681]]

Section 70.1900(a)(4) of the diesel equipment rule now allows the
district manager to establish areas in the mine where air quality
samples for gases must be collected to identify and correct problems
such as those described. Even though the focus in 30 CFR 70.1900(a)(4)
is on gaseous emissions, the point is that a buildup of gaseous
emissions would be an indication of a build up of diesel emissions
generally and thus, of the inadequate ventilation that was the concern
of the commenters.
The comments about the light duty fleet as a whole were not
particularly helpful in evaluating the agency's specific request for
comment on whether it would be feasible for this sector to implement a
requirement that the emissions from any new light-duty equipment added
to a mine's fleet be limited. Nevertheless, as noted in Part III, the
best available evidence is that a significant risk of adverse health
effects due to dpm exposures will remain even after this rule will be
implemented. Since the Agency is under a legal obligation to eliminate
significant risks to the extent feasible, the Agency determined it
should conduct a further analysis of the feasibility of limiting
emissions from newly introduced light-duty equipment into underground
coal mines. The service life of light-duty equipment (e.g., pickup
trucks) is roughly ten years--much shorter than other types of
equipment which is often rebuilt underground. Accordingly, if the
engines in the new equipment are cleaner than the ones in the old
equipment, the dpm emissions in the mine can be lowered over this
period of time without the need to place controls on the existing
fleet.
MSHA then examined the kinds of engines that were likely to be in
new light-duty equipment, as compared with the engines in the current
light duty fleet. It turns out that there is likely to be a major
difference. Many of the engines in the current fleet were designed and
produced before the advent of EPA emission standards. Almost all of
those engines likely to be available for introduction underground in
the future will be subject to such standards. Accordingly, MSHA has
determined that if newly introduced light duty engines or equipment are
limited to more recent models, the dpm emissions from the new light
duty fleet will eventually be significantly less than from the current
fleet. The service life of light-duty equipment (e.g., pickup trucks)
is roughly ten years--much shorter than other types of equipment which
is often rebuilt underground. As explained in the next section of this
discussion, MSHA determined that requiring all light-duty equipment
introduced underground in the future to comply with these standards is
feasible; the engines required to meet the requirement are available in
all types and sizes. Accordingly, the agency decided that the record
warranted adoption of the alternative it had placed before the mining
community, and the final rule establishes emission standards for newly
introduced light-duty equipment.
How did MSHA determine the emissions limit for newly introduced
light-duty equipment? MSHA examined whether it could establish the
standard for newly introduced light-duty equipment at the same level as
the standard it is establishing for newly introduced heavy-duty
equipment, generators and compressors. In this regard, the agency
looked at two sets of existing requirements to determine what types of
engines used in light-duty equipment are readily available today, and
then set the standard accordingly. First, the agency looked at current
MSHA approval standards, and then it looked at current EPA standards.
The record indicated that equipment in the light duty fleet may be
used to the extent that the dpm emissions from these vehicles could
contribute to overall mine air quality in a manner similar to heavy-
duty equipment. However, an equal number of commenters stated that
light-duty vehicles are not used very much except for transporting
miners in, out, and around the mine on a limited basis. MSHA believes
that mines utilizes their light duty fleet in various ways depending on
the individual mine conditions, fleet management, and standard
operating practices. Also MSHA believes that many light-duty vehicles
are operated in areas of the mine where the ventilation rate exceeds
the approval plate quantities. Because MSHA did not receive sufficient
information to establish the need to control dpm emissions from light-
duty equipment to the same degree as required for heavy duty or
permissible equipment, MSHA established a new approach. MSHA determined
that no action needs to be taken to modify equipment in the existing
light duty fleet. However, MHSA wanted to ensure that steps be taken to
limit the dpm emissions from any light-duty equipment introduced into
mines. The steps would include purchasing equipment that uses engines
representative of the state-of-the-art in emission control that are
commercially available. These engines would be the type that are being
manufactured to comply with the current EPA standards for diesel
engines for both on-highway and nonroad applications. MSHA also
recognized that manufacturers of mine specific vehicles currently
utilize engines of older design that would not meet the EPA standards.
Manufacturers of this equipment could continue to use these engines
with appropriate after treatment of the exhaust to limit the dpm
emissions.
In its deliberations to determine the emissions standard that was
required to be met by heavy-duty equipment, MSHA also determined that
engines in existing light-duty equipment could be provided with
commercially available aftertreatment controls to reduce the dpm
emissions to 5.0 gm/hr. In fact, some light-duty equipment with
relatively low horsepower engines can meet a 5.0 gm/hr standard without
any aftertreatment controls.
Some existing light-duty equipment built specifically for mine use
is representative of equipment that will probably continue to be
introduced into the mines. This type of light-duty equipment will
continue to use engines that would not meet the EPA dpm standards.
Hence for any such equipment introduced into an underground coal mine
after the effective date, aftertreatment will be required.
Consequently, MSHA established the 5.0 gm/hr standard for any
light-duty equipment introduced into mines after the effective date of
the rule.
As stated above, part of the approach established by MSHA for
light-duty equipment was to ensure that introduced light-duty equipment
would be provided with engines representative of the state of the art
in emission control that are commercially available. These engines
would be the type that are being manufactured to comply with the
current EPA standards for diesel engines for both on-highway and
nonroad applications.
As noted in section 5 of Part II, the EPA emission standards are
established for light-duty vehicles and trucks, heavy duty highway
engines, and nonroad engines. These requirements take effect for new
production runs of engines at various times depending on engine type
and size. MSHA recognizes that introduced equipment provided with these
engines may exceed the 5.0 gm/hr standard. However, the engines being
built to meet the EPA standards represent the state of the art in
emission controls that are feasible to limit diesel exhaust emissions
for those sizes of engines. MSHA did not intend to require
aftertreatment controls on introduced light-duty equipment. MSHA
believes that as long as mine

[[Page 5682]]

operators purchase equipment with these new engines, the in-mine dpm
concentrations will be reduced as the existing light-duty equipment
fleet is replaced.
MSHA has established an exception in 30 CFR 72.502(b) that would
allow mine operators to introduce equipment powered by engines that
meet the EPA standards listed in Table 72.502-1 in lieu of meeting the
5.0 gm/hr standard given in 72.502(a). MSHA also knows that the EPA
intends to tighten the emission standards for new diesel engines. As
engines meeting these future requirements are produced, they will also
become available for use in mining equipment, thus the overall
contribution of dpm from the in-mine light-duty equipment should
decrease even further.
MSHA has already approved engines produced by a variety of engine
manufacturers in a wide range of horsepowers that meet the EPA
standards listed in Table 72.502-1 of this part. These engines are
shown on Table IV-1 by an asterisk (*).
Many pickup trucks used in underground coal mines use engines that
would be classified by the EPA as ``heavy duty highway engines''.
Consequently, if the engine was produced after 1994, it has met the EPA
emissions standard of 0.1 g/bhp-hr shown in table 72.502-1. MSHA
believes that the mining community is not likely to have any problem
finding a pickup truck that meets the standard. Many pickup trucks can
be moved from mine to mine and meet the standard.
This is basically the same for any on-highway engine the EPA
classifies as a ``light-duty vehicle'' or ``light duty trucks''. If
manufactured in or after model year 1994, the vehicle or truck must be
limited to a dpm output of 0.1 gr/mile and meets the EPA requirement.
However, there are no such vehicles currently in use in mines.
Mine operators frequently purchase equipment for use in underground
coal mines that come with engines which are categorized by EPA as
nonroad engines for use in underground coal mines. This includes both
industrial equipment and mine specific equipment such as forklifts,
rockdusters, tractors, pumps, manlifts, personnel carriers, and
welders. EPA's requirements on nonroad engines vary by horsepower. As
discussed in part II of this preamble, EPA originally regulated these
engines at standards referred to as tier 1. The most recent standards
that are scheduled to become effective for these engines are designated
as tier 2 standards. Many of the engines used in this equipment will
soon be meeting the EPA tier 2 dpm limits as a result of the 1998
rulemaking by that agency. MSHA chose the tier 2 standards in 30 CFR
72.502(b) of this part since they will represent the most advanced
technologies for emission controls. As previously stated, some nonroad
engines are already being produced which meet the tier 2 requirements
and have been approved by MSHA. Approximately two-thirds of the
nonpermissible MSHA approved engines meet the tier 2 standards. The
exact EPA emission limits for each tier for each engine size category
are listed in Table 72.502-1 of the final rule which is reproduced here
in the preamble for reference:

BILLING CODE 4510-43-P

[[Page 5683]]

[GRAPHIC] [TIFF OMITTED] TR19JA01.044

BILLING CODE 4510-43-C

[[Page 5684]]

In this final rule, operators have the option to meet the
requirements of the standard by installing filters on newly introduced
light-duty equipment. For example, an operator wishing to take an
existing piece of light-duty equipment whose emissions exceed 5.0
grams/hour from one mine and use it in another mine could do so if the
machine is equipped with a filter or catalytic converter efficient
enough to bring the emissions down to 5.0 grams/hour. MSHA anticipates
that the majority of mine operators will choose to purchase equipment
with MSHA approved engines meeting the EPA dpm standards. Some models
of small utility equipment might be difficult to filter, so the mine
operator will probably choose to introduce this type of equipment with
an engine that meets EPA requirements. However in some cases where an
engine which complies with the 5.0 g/hr standard or the EPA
requirements is too expensive or hard to use for a specific machine
application, a filter system can be designed in during the construction
of the vehicle instead of a retrofit.
The Agency wishes to emphasize that it is not barring operators
from introducing used equipment into an underground coal mine simply
because it is used. As noted in the examples above, many of these EPA
requirements have been in place for a while, so operators should have a
wide choice of equipment from which to choose, and in other cases there
are MSHA approved engines that will meet the standards.
MSHA will undertake other actions to further facilitate compliance
with this standard. As noted above, MSHA is enabling operators to
comply with this standard by selecting engines or equipment that comply
with various EPA standards. However, under the diesel equipment rule,
all engines used underground have to be approved by MSHA. Accordingly,
MSHA is reviewing actions that could be taken to facilitate the
approval process when an engine meets EPA standards.
As was described earlier in the discussion of the heavy-duty
equipment requirements, MSHA is developing a program which will
streamline the procedures by which manufacturers of diesel engines
intended for use in outby areas of underground coal mines can gain
Agency approval. The program will draw on the EPA testing procedures
(currently used only in the certification program for nonroad engines).
MSHA will announce the specifics of the program when it is finalized.
This program, when implemented, will assure mine operators and mining
equipment manufacturers of the availability of low emissions engines,
approved by both MSHA and EPA, in a wide range of horsepowers with
which they can easily comply with the dpm requirements for light-duty
equipment.
Exemption for ambulances and fire fighting equipment. Paragraph (c)
of this section excludes from these requirements diesel powered
ambulance and fire fighting equipment being used in accordance with the
mine fire fighting and evacuation plan under 30 CFR 75.1101-23. This is
done in the same manner as MSHA excluded this type of equipment in the
diesel equipment rule. This exclusion ensures consistency between this
rule and the diesel equipment rule.

Section 72.503 Determination of Emissions; Filter Maintenance

Organization. This section is added to the final rule to specify
the means to determine and maintain compliance with the machine
emission limits established in this part. The requirements of this
section revise and refine provisions included in the proposal under
72.500(c) and (d). The requirements have been moved to a separate
section because they are relevant to the requirements of several other
sections--30 CFR 72.500, 72.501 and 72.502.
Engine emissions. Section 72.503(a) of the final rule specifies
that the amount of dpm emitted by a particular engine shall be
determined from the engine approval pursuant to 30 CFR
7.89(a)(9)(iii)(B) or 7.89(a)(9)(iv)(A), except for those engines in
light-duty equipment deemed to be in compliance with the requirements
of this rule pursuant to 30 CFR 72.502(b).
This approach using part 7 engine approval data was inherent in the
requirements of proposed 30 CFR 70.500(d). The current formulation
refines the requirement to make it more clear and extends coverage to
the EPA approval program.
MSHA currently lists all part 7 engine approvals on the Internet.
The web addresses have been previously listed in this section. To
assist mine operators in complying with the provisions of this rule,
MSHA will add the dpm grams per hour number for each approved engine
based on the approval test data. This number is calculated from the
equations in 30 CFR 7.89(a)(9)(iii)(B) or 7.89(a)(9)(iv)(A) which are
direct results of tests conducted for determination of the particulate
index. This value will be used as an engine's baseline dpm
concentration; the efficiency of the filter will then be multiplied by
this baseline dpm number to establish compliance with the machine's
emission limit under the appropriate section of this rule. MSHA will
use the gm/hr data obtained from the MSHA approval data and not the gm/
hr data determined from other filter tests that determine the
efficiency of the filter being tested. Results from different engine
configurations or different laboratories could give results that could
prevent the mine operator from showing compliance. The data could also
be different if the tests were run differently from the approval test.
Laboratory test procedures for testing aftertreatment devices; MSHA
acceptance of results of other organizations. Section 72.503(b) of this
final rule provides that the efficiency of an aftertreatment device is
to be established by a laboratory test with a device representative of
that to be used--and not by an actual test at the mine site on a
particular filter. The test of the aftertreatment device is to be on an
approved engine that emits no more dpm than the engine in the machine
on which the aftertreatment device is to be used. If the filter test
were run on an engine with higher emissions, the filter is likely to be
rated as having a higher efficiency than it does when installed on an
engine that produces lower emissions. This is consistent with the views
of those commenters who objected to the proposal to establish a 95%
efficient filter standard on the grounds that they would not be able to
maintain such an efficiency as cleaner engines are introduced. The
engine is to be run on the same test cycle used for MSHA approvals. The
test procedure to follow must be appropriate to the filter media being
tested. Furthermore the test is to be done by a laboratory capable of
testing engines in accordance with MSHA approval requirements, to
ensure consistency among testing and results.
Although these requirements provide the specifications for filter
efficiency tests, MSHA does not believe that many filter tests will
need to be run in order for mine operators to comply with the
requirements of this rule. A key reason is that 30 CFR 72.503(c) allows
the Secretary to accept the results of tests conducted or certified by
an organization whose testing standards are deemed by the Secretary to
be as rigorous as those set forth in 30 CFR 72.503(b). Also, the
Secretary may accept the results of tests for one aftertreatment device
as evidencing the efficiency of another aftertreatment device which the
Secretary determined to be essentially identical to the one tested.
With respect to hot gas filters, the agency has already indicated
(in the discussion of 30 CFR part 72.501) its intention to accept the
efficiency results of any filter tested by VERT--

[[Page 5685]]

notwithstanding their use of somewhat different test procedures. MSHA
will provide additional information on how mine operators can easily
obtain the filter efficiency data from VERT in the compliance guide for
this rule.
Moreover, the record of this rulemaking contains data establishing
the efficiency of both the DST system and paper filters. Both
of these were tested by SwRI in tests meeting the requirements of this
section. MSHA has indicated (in the discussion of proposed section
72.500 of this part) that it will accept as having the same efficiency
as the paper filter it tested, any filter using the same or equivalent
media. Such filter paper appears to be used for the production of a
variety of filters. Consequently, effective filters will be readily
available.
The filter efficiency test procedure stated in this final rule is
basically the same as that procedure specified in the proposal. This
test procedure follows the test cycle specified in part 7, subpart E,
for determination of the particulate index. This test is similar to the
test procedure used by VERT. VERT has streamlined their test procedure
to minimize testing time but retained the main dpm producing modes on
the steady state test cycle. The MSHA test procedures in part 7,
subpart E were originally adapted from the ISO 8178 procedures. VERT
actually follows the test procedures in ISO 8178.
Several commenters questioned whether the ISO 8178 is an
appropriate test for performing the filter efficiency tests, but
offered no suggestions as to a cycle which should be used. Other
commenters stated that the ISO 8178 is the best test at this point in
time for conducting the filter efficiency test since no other cycle is
available. Because ISO 8178 is an internationally accepted test cycle
for evaluating diesel engine emissions, MSHA is retaining the ISO 8178
test procedure in this final rule. However the rule does allow the
Secretary to accept data from tests.
MSHA will maintain a list (posted on its web site) of additional
sources from which mine operators and inspectors can obtain the
necessary information, including aftertreatment manufacturers who
follow testing procedures MSHA deems meet its requirements. Mine
operators will have to show evidence that for each particular machine,
the engine baseline data multiplied by the filter efficiency will meet
the appropriate standard. Any questions on acceptance of a filter
manufacturer should be made prior to purchasing of the filter media.
The mine operator may want to contact MSHA's approval and certification
center located at Triadelphia, WVA to determine that the filter
efficiency data is acceptable prior to purchasing, especially if the
filter data is not from VERT or from a source listed by MSHA.
One commenter stated that industry was concerned that laboratory
tests of filters may give invalid indication of filter efficiency. MSHA
believes that the filter test should be appropriate to the media; that
is the aftertreatment device should be tested with the contaminant that
is being controlled. The aftertreatment industry has been testing
filters in the laboratory for many years in development of their
products. In the case of ceramic type filters, MSHA is not aware of any
types of tests performed on ceramics that does not use dpm from the
diesel exhaust. Aftertreatment control manufacturers that build dpm
control devices test their systems for various applications worldwide,
through both laboratory and field work.
Other types of filter media (e.g., paper) have been developed by
the mining industry for use on permissible equipment which is specific
to mining. General industry does not use paper for dpm reduction due to
the high exhaust gas temperatures from diesels. Paper filters are
mainly produced as intake air cleaners and industry test standards for
determining air cleaner efficiency are followed. Since these filters
are mainly used for intake air filters, MSHA believes that industry
standard intake air filter tests could be representative tests for this
type of filter media when used for dpm reduction. MSHA would compare
the paper specifications to determine equivalency. If the papers were
equivalent, then air filter type tests would be acceptable to the
Secretary for this type of media.
Aftertreatment device maintenance requirements. Section 72.503(d)
of this rule states that any aftertreatment device installed on a piece
of diesel equipment, upon which the operator relies to remove dpm,
shall be maintained in accordance with manufacturer specifications and
shall be free of observable defects. Except for the last phrase, which
was added by MSHA in order to clarify the requirement for the mining
community, this requirement was specified in the proposal under section
72.500(d).
One commenter requested that MSHA also require an on board engine
performance and diagnostic system. MSHA is aware that some permissible
machines have added electronic type shut down systems and electronic
controlled fire suppression systems. On some newer nonpermissible
engines, especially larger engines, engine manufacturers use electronic
controls to regulate the engine's fuel injection timing and governing.
Engines equipped with these electronic devices typically have complete
diagnostic capability. MSHA believes as engine technologies develop,
more engines will have diagnostic systems built in from the
manufacturer. MSHA is not requiring in this final rule on board engine
performance and diagnostic systems on equipment. However, MSHA will
work with engine manufacturers under the part 7 approval process to
evaluate new electronic controls, especially for permissible engines.
Other commenters stated that maintenance is part of the toolbox
approach, and therefore ought not to be specifically included. MSHA has
a requirement in the current diesel equipment rule to maintain diesel
powered equipment in approved and safe condition or be removed from
service. This final rule is extending the requirements for maintenance
specifically to aftertreatment controls added to the machines to reduce
dpm.

Section 72.510 Miners Health Training

Paragraph (a) of this section requires annual hazard awareness
training of underground coal miners who can reasonably be expected to
be exposed to dpm. Paragraph (b) includes provisions on records
retention, access and transfer.
Section 72.510(a) of this rule would require any underground coal
miner ``who can reasonably be expected to be exposed to diesel
emissions'' be trained annually in: (1) The health risk associated with
exposure to diesel particulate matter; (2) the methods used in the mine
to control diesel particulate matter concentrations; (3) identification
of the person responsible for maintaining those controls; and (4)
actions miners must take to ensure the controls operate as intended.
The final rule is the same as that proposed.
The purpose of these requirements is to promote miner awareness.
Exposure to diesel particulate is associated with a number of harmful
effects as discussed in Part III of this preamble, and the safe level
is unknown. Miners who work in mines where they are exposed to this
risk must be reminded of the dpm hazard to make them active and
committed partners in implementing actions that will reduce that risk.
Several commenters expressed concern about which miners will be
required to be trained. MSHA believes the rule is clear on this issue.
The training need only be provided to underground miners who can
reasonably be expected to be exposed to

[[Page 5686]]

dpm at the mine. The training is to be provided by the operator; hence,
it is to be without cost to the miner.
The rule places no constraints on how the operator should conduct
this training. MSHA believes that the required training can be provided
with minimal cost and with minimal disruption. This final rule does not
require any special qualifications for instructors, nor does it specify
the hours of instruction.
One-on-one discussions that cover the required topics is one
approach that can be used. Alternatively, instruction could take place
at safety meetings before the shift begins. Several of the training
requirements can be covered by simply providing miners with a copy of
MSHA's ``toolbox.'' Operators may determine how the ``toolbox'' can be
used at their mine.
The Agency requested comments concerning inclusion of dpm training
in the required part 48 training plan. The only comment received
suggested that this training be included in the part 48 training and
removed from this rule. MSHA considered whether the requirements of
part 48 were adequate to ensure the training required under the final
diesel particulate standard. After careful consideration, MSHA
concluded that available information provided to miners under current
part 48 training would be inadequate to fully convey information under
the diesel particulate final rule. MSHA will, however, accept part 48
training for compliance with diesel particulate training requirements
under this section, provided mine operators fully integrate the
requirements of diesel particulate training into their existing
program.
Section 115 of the Federal Mine Safety and Health Act of 1977 and
30 CFR part 48, ``Training and Retraining of Miners,'' requires
operators to submit to MSHA and obtain its approval of training plans
under which miners are provided training, primarily through initial and
annual refresher training courses. Part 48, among other things, also
specifies qualifications for training instructors, minimum training
hours for miners and instruction on particular topics which must be
covered within the specified minimum training time. Existing section
48.8(a) establishes a minimum of eight hours of annual refresher
training for underground miners. Section 48.8(b), specifies that
underground miners must be trained on a minimum of eleven different
subjects, none of which MSHA believes would cover the specific
requirements for diesel particulate training.
Nevertheless, MSHA believes compliance with this proposal can in
many cases be fulfilled at the same time as scheduled part 48 training.
The Agency, however, does not believe special language is required in
this final rule to permit this action under part 48. If incorporated
into part 48, mine operators would, however, be required to submit a
revised training plan to the appropriate MSHA district office for
approval. Some mine operators, however, may not be able to incorporate
these topics in their part 48 plans. MSHA has endeavored to make the
training requirements as simple as possible. If conducted separately
from part 48 training, there are no specifications on trainer
qualifications, no minimal training time, nor any training plans. If,
however, the training is incorporated into part 48, then all applicable
part 48 requirements will have to be met.
A commenter expressed concerns about individual MSHA inspectors
determining their own set of health risks for training purposes and
then trying to cite a company for not training on those health risks.
They also suggested that the Agency develop a ``Question and Answer''
document to address this problem. To address the mine operators concern
about the training requirements, MSHA intends to develop an instruction
outline that mine operators can use as a guide for training personnel.
Instruction materials will also be provided with the outline. MSHA
believes this will not only provide guidance to the mining industry but
also to MSHA inspectors.
The final rule does not require the mine operator to separately
certify the completion of the dpm training, but some evidence that the
training took place would have to be produced upon request. A serial
log with the employee's signature is an acceptable practice.
Section 72.510(a)(1) of this rule requires the operator to train
underground miners who can reasonably be expected to be exposed to
diesel emissions in the health risk associated with dpm exposure.
Several commenters disagreed with this requirement. They do not believe
the health risks associated with exposures to diesel emissions have
been sufficiently identified. ``If the health effects have not been
identified, how can effective training be provided to the effected
miners?'' MSHA disagrees with this comment. MSHA believes, as throughly
discussed in Part III of this preamble, that the health effects
associated with diesel emissions have been well documented. Comments
received during this rulemaking further support MSHA's position
concerning health effects associated with diesel emissions. Therefore,
the requirements for training underground miners who can be reasonably
be expected to be exposed to diesel emissions have been retained in the
final rule.
Section 72.510(a)(3) of this rule requires the operator to identify
personnel responsible for maintaining the methods used to control dpm
in the mine. Some commenters suggested removing this provision from the
rule. These commenters objected to identifying the personnel
responsible for maintaining the methods used to control dpm. Because
they were concerned about having the employee, ``singled out from the
remaining workforce.'' Another commenter, asked how MSHA wanted the
operator to identify the employee responsible for maintaining dpm
controls; is the name to be posted, made available to interested
persons, put in the training plan, etc? While there is no provision in
this final rule for posting the information on the mine bulletin board
or in any other location, this information is required to be presented
to any underground miner who can reasonably be expected to be exposed
to diesel emissions. The final rule requires this information to be
presented at least annually but does not specify any specific method
for presenting the information. The operator has the option of
presenting this information orally or in written form.
The Agency believes this provision is consistent with the
requirements contained in 30 CFR 75.1915(c). 30 CFR 75.1915(c) requires
the operator to maintain a record of persons qualified to perform
maintenance, repairs, examinations and tests on diesel-powered
equipment. The operator is also required by Sec. 75.1915(c) to include
a copy of the training program used to qualify persons to perform
maintenance, repairs, examinations and tests in their records. Section
75.1915(c) also requires the operator to make this record available for
inspection by an authorized representative of the Secretary of Labor.
All records that would need to be maintained concerning the
qualification of personnel responsible for maintaining dpm controls are
contained in Sec. 75.1915(c). The individuals identified by
Sec. 75.1915(c) would also be the individuals identified in
Sec. 72.510(a)(3). The requirement to identify personnel qualified to
perform specialized tasks is not a novel approach. Therefore,
Sec. 72.510(a)(3) has not been changed or deleted from the final rule.

[[Page 5687]]

Section 72.510(b)(1) of this rule requires that any log or record
produced signifying that the training has taken place would be retained
for one year. A commenter stated other records are not required to be
maintained and should not be required by this rule. Numerous training
records are required to be maintained for a variety of training
requirements throughout 30 CFR, and MSHA believes that retention of the
record for one year is important for documentation purposes. Therefore,
Sec. 72.510(b)(1) of this rule was not changed from the proposed rule
and is incorporated in this final rule.
The training records need to be where an inspector can view them
during the course of an inspection, as the information in the record
may determine how the inspection proceeds. If the mine site has a fax
machine or computer terminal, MSHA would permit the record to be
maintained elsewhere so long as they are readily accessible. This
approach is consistent with the Office of Management and Budget
Circular A-130 and 30 CFR 75.1915(c).
Paragraph (b)(2) of section 72.510 of this rule requires mine
operators to provide prompt access to the training records upon request
from an authorized representative of the Secretary of Labor, the
Secretary of Health and Human Services, or from an authorized
representative of the miners. If an operator ceases to do business, all
training records of employees are expected to be transferred to any
successor operator. The successor operator is expected to maintain
those training records for the required one year period unless the
successor operator has undertaken to retrain the employees. There were
no comments received concerning the maintenance of records by a
successor operator. Therefore, the final rule has adopted the wording
as published in the proposed rule.

Section 72.520 Diesel Equipment Inventory

Proposed Sec. 75.371(qq) would have required, ``A list of diesel-
powered units used by the mine operator together with information about
any unit's emission control or filtration system.'' One commenter
stated that the proposal was vague and overly burdensome. The commenter
also stated that exhaustive, detailed technical specifications were not
needed in the approved ventilation plan. MSHA agrees with the comments
and has changed the final rule to reflect what MSHA believes is
necessary information to help evaluate the effectiveness of dpm
controls in underground coal mines. By specifying the information
required, MSHA has provided uniform guidance to the mining community as
to the information required to be submitted in the diesel equipment
inventory.
Another commenter suggested the information be provided and posted
at the mine and made available to a representative of the Secretary and
other interested person. Another commenter was concerned with the time
delay in submitting an addendum to the ventilation plan and the
approval of the plan. The commenter stated that this was not required
of other equipment used underground and should not be required of
diesel-powered equipment. Concerns were raised by several commenters
about delays in the approval of revisions to the ventilation plan.
MSHA has taken these comments into consideration and in the final
rule has removed the diesel equipment inventory provision from the
Approved Ventilation Plan and established it as a separate requirement
Sec. 72.520. There was no intent to require that the inventory be
approved, but rather to require the information to be provided to MSHA
and the representatives of the miners. The final rule requires each
mine operator to prepare and submit a diesel equipment inventory to the
District Manager. It also clarifies the information that must be
included in the inventory. This information must be accurate so that
the appropriate emission controls can be matched with an engine and to
ensure that the required emission rates during the phase-in period are
met. If there are modifications to the inventory, such as equipment
being added or deleted, or changes to emission control systems, these
modification must be submitted to the District Manager within 6 months.
If no changes to the inventory are made, there is no need to update the
diesel equipment inventory. The final rule also requires that mine
operators provide a copy the diesel equipment inventory to the
representative of the miners within 3 days.

Effective Dates

The final rule provides that unless otherwise specified, its
provisions take effect 60 days after the date of promulgation. Some
provisions of the final rule contain delayed effective dates that
provide more time for technical assistance to the operators. Table I-1
presents the effective dates of various provisions of the final rule is
reproduced below for convenience.

BILLING CODE 4510-43-P

[[Page 5688]]

[GRAPHIC] [TIFF OMITTED] TR19JA01.045

BILLING CODE 4510-43-C

The final rule stipulates that any piece of diesel-powered
equipment introduced into an underground coal mine 60 days after the
promulgation date of this final rule is required to meet specific
emission limits. For equipment that is currently used in underground
coal mines, the compliance dates vary with regards to the type of
diesel-powered equipment used in underground coal mines. MSHA includes
in the category of equipment currently in use in underground coal mines
any equipment that is ordered on or before the promulgation date of
this final rule, even if the delivery date is more that 60 days from
the promulgation date. By treating equipment on order as equipment
already in use, the Agency is allowing the operator to use the
equipment as delivered by the equipment supplier. A valid purchase
order would be required of the operator as evidence that the diesel-
powered equipment was ordered on or before the promulgation date of the
final rule.
The time frame of 60 days after the promulgation date of the final
rule also applies to newly introduced diesel-powered equipment as a
result of explicit effective dates in 30 CFR 72.500, 72.501, and 72.502
of this rule. Diesel-powered equipment that is introduced in an
underground coal mine 60 days after the promulgation date of the final
rule must emit no more than 2.5 grams per hour of dpm. The term
``introduced'' is defined in Sec. 72.503(e) and is explained in the
appropriate Section-by-Section discussion in this preamble.
Section 72.500(b) of this rule allows the operator 18 months from
the promulgation date of the final rule to meet emission limits for
permissible diesel-powered equipment currently in use in underground
coal mines. Several commenters stated the 18 month time frame was
insufficient to comply with the proposed rule. They suggested
increasing the effective date to between 2 and 4 years from the
promulgation date of the final rule. The proposed rule would have
required, in part, a system capable of removing, on average, at least
95% of diesel particulate matter by mass. The only system reportedly
available that achieved the filtration efficiency necessary, was the
DST system. As discussed elsewhere in this preamble, the
final rule sets emission limits on diesel-powered equipment and allows
the operator to use whatever diesel particulate reducing technologies
available to meet the limits. Information submitted during the rule
making process and verification testing conducted for MSHA, has
identified that readily available paper filters can achieve the
emission limits set for permissible diesel-powered equipment.
Therefore, MSHA has retained the 18 month effective date for diesel-
powered equipment currently in use in underground coal mines.
Section 72.501 of this rule addresses emission limits for
nonpermissible heavy-duty diesel-powered equipment, generators and
compressors. There are 3 time tables associated with these pieces of
diesel-powered equipment. As with permissible diesel-powered equipment,
all nonpermissible heavy-duty diesel powered equipment, generators and
compressors introduced into an underground coal mine 60 days from the
promulgation date of the final rule would be required to meet a
specific dpm emission limit. As stated the final rule differs from the
proposed rule, however, the compliance date for newly introduced
diesel-powered equipment has not been changed.
The final rule allows 30 months from the promulgation date for the
operator to reduce the emission levels to the levels required for newly
introduced diesel-powered equipment. Some commenters believe this time
frame should be increased to 3 to 4 years.

[[Page 5689]]

Another commenter stated the time frame for complying with the standard
should be shortened. Based upon information obtained during the rule
making process, MSHA believes the 30 month time table is adequate and
reasonable to install the necessary particulate controls to comply with
the required emission limits.
Section 72.501(c) of this final rule requires all nonpermissible
heavy-duty diesel-powered equipment, generators and compressors to meet
a stricter emission limit within 4 years after promulgation of the
final rule. The proposed rule would have allowed 6 years to achieve
these stricter limits. After reviewing the record, particularly
information submitted by aftertreatment device manufacturers, MSHA has
concluded that these stricter standards can be met in a shorter time
frame. Discussions on these emission limits are covered in greater
detail elsewhere in this preamble. Therefore, the effective date for
the stricter emission limits was reduced from 6 years to 4 years.
Section 72.503 of this final rule addresses nonpermissible light-
duty diesel-powered equipment other than generators and compressors.
The proposed rule did not address nonpermissible light-duty diesel-
powered equipment. As discussed earlier in the preamble, nonpermissible
light-duty diesel-powered equipment has been included in this final
rule. The final rule only addresses nonpermissible light-duty diesel-
powered equipment that is introduced 60 days after the promulgation
date of this final rule. Equipment currently in use in underground coal
mines is excluded from meeting emission limits. Based upon information
gathered during the rule making process, MSHA believes 60 days after
the promulgation date of the final rule is reasonable and this
requirement has been added to the final rule.

V. Adequacy of Protection and Feasibility of Final Rule;
Alternatives Considered

The Mine Act requires that in promulgating a standard, the
Secretary, based on the best available evidence, shall attain the
highest degree of health and safety protection for the miner with
feasibility a consideration.
Overview. This part begins with a summary of the pertinent legal
requirements, followed by a general profile of the economic health and
prospects of the coal mining industry.
The discussion then turns to the main component of the rule being
promulgated by the Agency for underground coal mines. MSHA is requiring
that mine operators limit the emissions of dpm to defined quantities
for various categories of diesel equipment underground. This part
evaluates the rule to ascertain if, as required by the statute, it
achieves the highest degree of protection for underground coal miners
that is both technologically and economically feasible for mine
operators.
About half a dozen regulatory alternatives to the final rule were
also reviewed by MSHA in light of the record. After considerable study,
the Agency has concluded that compliance with these alternatives either
provide less protection than the feasible approach being adopted, or
are not technologically or economically feasible for the underground
coal mining industry as a whole at this time.
Pertinent Legal Requirements. Section 101(a)(6)(A) of the Federal
Mine Safety and Health Act of 1977 (Mine Act) states that the Secretary
of Labor (Secretary) in promulgating mandatory standards dealing with
toxic materials or harmful physical agents under the Act, shall set
standards when most:

* * * [A]dequately assure, on the basis of the best available
evidence, that no miner will suffer material impairment of health or
functional capacity even if such miner has regular exposure to the
hazards dealt with by such standard for the period of his working
life.

The Mine Act also specifies that the Secretary, in promulgating
these mandatory standards, must base such standards upon:

* * * [R]esearch, demonstrations, experiments, and such other
information as may be appropriate. In addition, to the attainment of
the highest degree of health and safety protection for the miner,
other considerations shall be the latest available scientific data
in the field, the feasibility of the standards, and experience
gained under this and other health and safety laws. Whenever
practicable, the mandatory health or safety standard promulgated
shall be expressed in terms of objective criteria and of the
performance desired. [Section 101(a)(6)(A)].

Thus, the Mine Act requires that the Secretary, in promulgating a
standard, based on the best available evidence, attain the highest
degree of health and safety protection for the miner with feasibility a
consideration.
In relation to feasibility, the legislative history of the Mine Act
states that:

* * * This section further provides that ``other
considerations'' in the setting of health standards are ``the latest
available scientific data in the field, the feasibility of the
standards, and experience gained under this and other health and
safety laws.'' While feasibility of the standard may be taken into
consideration with respect to engineering controls, this factor
should have a substantially less significant role. Thus, the
Secretary may appropriately consider the state of the engineering
art in industry at the time the standard is promulgated. However, as
the circuit courts of appeal have recognized, occupational safety
and health statutes should be viewed as ``technology-forcing''
legislation, and a proposed health standard should not be rejected
as infeasible when the necessary technology looms in today's
horizon. AFL-CIO v. Brennan, 530 F.2d 109 (1975); Society of the
Plastics Industry v. OSHA, 509 F.2d 1301, cert. denied, 427 U.S. 992
(1975).

Similarly, information on the economic impact of a health standard
which is provided to the Secretary of Labor at a hearing or during the
public comment period, may be given weight by the Secretary. In
adopting the language of [this section], the Committee wishes to
emphasize that the agency rejects the view that cost benefit ratios
alone may be the basis for depriving miners of the health protection
which the law was intended to insure. S. Rep. No. 95-181, 95th Cong.,
1st Sess. 21 (1977).
Court decisions have clarified the meaning of feasibility. The
Supreme Court, in American Textile Manufacturers' Institute v. Donovan
(OSHA Cotton Dust), 452 U.S. 490, 101 S.Ct. 2478 (1981), defined the
word ``feasible'' as ``capable of being done, executed, or effected.''
The Court stated that a standard would not be considered economically
feasible if an entire industry's competitive structure was threatened.
According to the Court, the appropriate inquiry into a standard's
economic feasibility is whether the standard is capable of being
achieved.
Courts do not expect hard and precise predictions from agencies
regarding feasibility. Congress intended for the ``arbitrary and
capricious standard'' to be applied in judicial review of MSHA
rulemaking (S.Rep. No. 95-181, at 21.) Under this standard, MSHA need
only base its predictions on reasonable inferences drawn from the
existing facts. MSHA is required to produce a reasonable assessment of
the likely range of costs that a new standard will have on the
industry. The agency must also show that a reasonable probability
exists that the typical firm in the industry will be able to develop
and install controls that will meet the standard. See, Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814 (1971);
Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 103 S.Ct. 2246,
(1983); Motor Vehicle Manufacturers Assn. v. State Farm Mutual
Automobile Insurance Co., 463

[[Page 5690]]

U.S. 29, 103 S.Ct. 2856 (1983); International Ladies' Garment Workers'
Union v. Donovan, 722 F.2d 795, 232 U.S. App. D.C. 309 (1983), cert.
denied, 469 U.S. 820 (1984); Bowen v. American Hospital Assn., 476 U.S.
610, 106 S.Ct. 2101 (1986).
In developing a health standard, MSHA must also show that modern
technology has at least conceived some industrial strategies or devices
that are likely to be capable of meeting the standard, and which
industry is generally capable of adopting. United Steelworkers of
America v. Marshall, 647 F.2d 1189, 1272 (1980). If only the most
technologically advanced companies in an industry are capable of
meeting the standard, then that would be sufficient demonstration of
feasibility (this would be true even if only some of the operations met
the standard for some of the time). American Iron and Steel Institute
v. OSHA, 577 F. 2d 825, (3d Cir. 1978); see also, Industrial Union
Department, AFL-CIO v. Hodgson, 499 F. 2d 467 (1974).
Industry Profile. The industry profile provides background
information describing the structure and economic characteristics of
the coal mining industry. This information was considered by MSHA in
reaching its conclusions about the economic feasibility of various
regulatory alternatives.
MSHA divides the mining industry into two major segments based on
commodity: (1) coal mines and (2) metal and nonmetal (M/NM) mines.
These segments are further divided based on type of operation (e.g.,
underground mines or surface mines). MSHA maintains its own data on
mine type, size, and employment.
MSHA also collects data on the number of independent contractors
and contractor employees by major industry segment.
MSHA categorizes mines by size based on employment. For the past 20
years, for rulemaking purposes, MSHA has consistently defined a small
mine to be one that employs fewer than 20 workers and a large mine to
be one that employs 20 or more workers. To comply with the requirements
of the Small Business Regulatory Enforcement Fairness Act (SBREFA)
amendments to the Regulatory Flexibility Act (RFA), however, an agency
must use the Small Business Administration's (SBA's) criteria for a
small entity--for mining, 500 or fewer employees--when determining a
rule's economic impact.
Table V-1 presents the total number of small and large coal mines
and the corresponding number of miners, excluding contractors, for the
coal mining segment. This table uses three mine size categories based
on the number of employees: (1) fewer than 20 employees (MSHA's
traditional definition of small), (2) 20 to 500 employees (small
according to SBA's definition) and (3) more than 500 employees. Table
V-1 further disaggregates data by surface mines and underground mines,
as well as (for employees) office workers. Table V-2 presents
corresponding data on the number of independent contractors and their
employees working in the coal mining segment.
Although this particular rulemaking does not apply to the surface
coal sector, information about surface coal mines is provided here in
order to give context for the discussions on underground mining.

Table V-1.--Distribution of Coal Mine Operations and Employment (Excluding Contractors) by Mine Type and Size a
----------------------------------------------------------------------------------------------------------------
Mine type
---------------------------------------------------
Size of coal mine b Office
Underground Surface workers Total coal
----------------------------------------------------------------------------------------------------------------
Fewer Than 20 Employees.......... Mines.................... 382 1,058 .......... 1,438
Employees................ 3,751 6,491 487 10,729
20 to 500 Employees.............. Mines.................... 522 492 .......... 1,014
Employees................ 39,566 31,731 3,389 74,692
Over 500 Employees............... Mines.................... 6 1 .......... 7
Employees................ 3,459 510 189 4,158
All Coal Mines................... Mines.................... 910 1,549 .......... 2,459
Employees................ 46,776 38,738 4,065 89,579
----------------------------------------------------------------------------------------------------------------
a Source: U.S. Department of Labor, Mine Safety and Health Administration, Office of Standards, Regulations, and
Variances based on 1998 MS data, CM441/CM935LA cycle 1998/198. Data for Total Office workers from Mine Injury
and Worktime Quarterly (1997 Closeout Edition) Table 1, p. 5.
b Based on MSHA's traditional definition, large mines include all mines with 20 or more employees. Based on
SBA's definition, as required by SBREFA, large mines include only mines with over 500 employees.

Table V-2.--Distribution of Contractors and Contractor Employment by Size of Operation a
----------------------------------------------------------------------------------------------------------------
Contractors
---------------------------------------------------
Size of contractor b Office
Underground Surface workers Total
----------------------------------------------------------------------------------------------------------------
Fewer Than 20 Employees.......... Mines.................... 1,077 2,403 .......... 3,480
Employees................ 4,078 9,969 1,064 15,111
20 to 500 Employees.............. Mines.................... 79 242 .......... 321
Employees................ 4,131 11,618 1,192 16,941
Over 500 Employees............... Mines.................... .............. .......... .......... ..........
Employees................ .............. .......... .......... ..........
Total Contractors................ Mines.................... 1,156 2,645 .......... 3,801
Employees................ 8,209 32,052 2,256 30,052
----------------------------------------------------------------------------------------------------------------
a Source: U.S. Department of Labor, Mine Safety and Health Administration, Office of Standards, Regulations, and
Variances based on 1998 MS data, CT441/CT935LA cycle 1998/198. Data for Total Office workers from Mine Injury
and Worktime Quarterly (1998 Closeout Edition) Table 5, p. 20.

[[Page 5691]]

b Based on MSHA's traditional definition, large mines include all mines with 20 or more employees. Based on
SBA's definition, as required by SBREFA, large mines include only mines with over 500 employees.

Agency data (Table V-1) indicate that there were about 2,459 coal
mines in 1998. When applying MSHA's definition of a small mine (fewer
than 20 workers), 1,438 (about 58%) were small mines and 1,021 (about
42%) were large.\82\ Using SBA's definition, only 7 coal mines (0.3
percent) were large. These data show that employment at coal mines in
1998 was about 89,600, of which (by MSHA's definition) about 10,700 (12
percent) worked at small mines and 78,900 (88 percent) worked at large
mines.\83\ Using SBA's definition, 95 percent of coal miners worked at
small mines and 5 percent worked at large mines. Using MSHA's
definition, small coal mine average 7 employees, and large coal mines
average 77 employees. Using SBA's definition, there are, on average, 35
employees in each small coal mine and 594 employees in each large coal
mine. MSHA classifies the U.S. coal mining segment into two major
commodity groups: bituminous and anthracite. About 92 percent of total
coal production is bituminous. The remaining 8 percent is the product
of lignite and anthracite mines.\84\
---------------------------------------------------------------------------

\82\ U.S. Department of Labor, MSHA, 1998 Final MIS data CM441
cycle 1998/198.
\83\ U.S. Department of Labor, MSHA, 1998 Final MIS data CM441
cycle 1998/198.
\84\ U.S. Department of Energy, Energy Information
Administration, Annual Energy Review 1998, July 1999, p. 191.
---------------------------------------------------------------------------

Mines east of the Mississippi accounted for about 49% of coal
production in 1998. For the period 1949 through 1998, coal production
east of the Mississippi River fluctuated relatively little, from a low
of 395 million tons in 1954 to a high of 630 million tons in 1990; 1998
production was estimated at 571 million tons. Coal production west of
the Mississippi, by contrast, increased each year from a low of 20
million tons in 1959 to a record high of 548 million tons in 1998.\85\
The growth in western coal has been due, in part, to environmental
concerns that led to increased demand for low-sulfur coal, which is
abundant in the West.
---------------------------------------------------------------------------

\85\ U.S. Department of Energy, Energy Information
Administration, Annual Energy Review 1998, July 1999, p. 191.
---------------------------------------------------------------------------

In addition, surface mining, with its higher average productivity,
is much more prevalent in the West. Surface mining methods for coal,
which include drilling and blasting, are also practiced in surface
mines for other commodity types. Most surface mines use front-end
loaders, bulldozers, shovels, or trucks for haulage.
The U.S. coal sector produced a record 1.12 billion short tons of
coal in 1998, at an average price of $17.58 per ton. The total value of
U.S. coal production in 1998 was estimated as $19.7 billion. Small
mines (by MSHA's definition) produced about 4 percent (40 million tons)
of domestic coal production valued at $0.7 billion, and large mines (by
MSHA's definition) produced about 96 percent (1.08 billion tons) valued
at $19.0 billion.\86\
---------------------------------------------------------------------------

\86\ U.S. Department of Energy, Energy Information
Administration, Annual Energy Review 1998, July 1999, p. 203, U.S.
Department of Energy, Energy Information Administration, Coal
Industry Annual 1997, December 1998, pp. ix and 154, and U.S.
Department of Labor, Mine Safety and Health Administration, Division
of Mining Information Systems, 1998 Final MIS data (quarter 1-
quarter 4) CM441 cycle 1998/198.
---------------------------------------------------------------------------

The U.S. coal industry enjoys a fairly constant domestic demand.
Over 90 percent of U.S. coal demand was accounted for by electric
utilities in 1998.\87\ Due to the high conversion costs of changing a
fuel source, MSHA does not expect a substantial change in coal demand
by utility power plants in the near future.\88\
---------------------------------------------------------------------------

\87\ U.S. Department of Energy, Energy Information
Administration, Annual Energy Review 1998, July 1999, p. 187.
\88\ U.S. Department of Energy, Energy Information
Administration, Annual Energy Outlook 2000, p. 68.
---------------------------------------------------------------------------

Adequacy of Miner Protection Provided by the Rule for Underground
Coal Mines. In evaluating the protection provided by the rule, it
should be noted that MSHA has measured dpm concentrations in production
areas and haulageways of underground coal mines which exceed
2500DPM g/m3 with a mean concentration
of 644DPM g/m3. See Table III-1 and
Figure III-1 in part III of this preamble. As discussed in detail in
part III of this preamble, these concentrations place underground coal
miners at significant risk of material impairment of their health, and
the evidence supports the proposition that reducing the exposure
reduces the risk.
The final rule would require operators to limit the emissions of
dpm emitted by various categories of equipment in underground coal
mines--permissible, heavy duty (and compressors and generators), and
other light duty. Equipment added to a mine's inventory more than 60
days after the rule is promulgated (or equipment already in the
inventory but equipped with a new engine after that time), would have
to comply with the appropriate standard. In addition, operators would
have 18 months to bring the existing fleet of permissible diesel
equipment into compliance with a 2.5 gr/hr emission standard. Operators
would have an additional year (30 months from date of promulgation) to
bring the existing fleet of heavy duty equipment (and generators and
compressors) into compliance with a 5.0 gr/hr emission standard, and up
to 4 years in all to bring that fleet down to a standard of 2.5 gr/hr.
As an example of how these emission standards can reduce dpm
concentration levels in a section of an underground coal mine, take the
case of a single-section mine with three Ramcars (94hp, indirect
injection) and a section airflow of 45,000 cfm. MSHA measured
concentrations of dpm in this mine at 610DPM g/
m3. Of this amount, 25DPM g/
m3 was coming from the intake to the section, and the
remaining 585 DPM g/m3 was emitted by
the engines. Reducing the engine emissions by 95% through the use of
commercially available paper filters would reduce the dpm emitted to
29DPM g/m3. With an intake amount of
25DPM g/m3, the ambient concentration
would be about 54DPM g/m3. Similarly,
dramatic results can be achieved in almost any situation by adding high
efficiency aftertreatment filters or by replacing current engines in
the fleet with a more recent generation.
While the reductions in section concentration from the controls
required by the final rule can be significant, it is important to
recognize that the actual reductions in a section will vary depending
upon a number of factors.
In the first place, unlike the proposed rule, the final rule does
not require current dpm emissions from each machine to be reduced by
95%. While the existing permissible fleet, and much of the existing
heavy duty fleet, will need to reduce engine emissions significantly to
come into compliance with the final standard, this will be feasible in
many cases with a less efficient filter. A detailed table illustrating
by how much the emissions from each current engine in the inventory
must be reduced to achieve compliance is shown in table IV-1.
Second, while aftertreatment filters currently available are
capable in laboratory tests of achieving a very significant reduction
in dpm mass, and this has been confirmed in some field tests, the
Agency has not tested filter efficiency under a variety of actual
mining conditions. Therefore, actual performance may be different in
the field due to individual mining

[[Page 5692]]

conditions (e.g., ventilation changes, changes of the equipment due to
maintenance, and the type of engine used).
Third, the impact on a mine section of reduced emissions from a
particular machine depends upon the ventilation rate and the ambient
dpm intake into the section. If ventilation levels drop below the
requirements established to control gaseous emissions, or if many
pieces of equipment throughout the mine create a high ambient level of
dpm, implementation of the rule may not bring concentrations down as
effectively as suggested in the prior example. On the other hand, if
the ventilation rate is maintained at a higher level, the emissions
would be better diluted and the ambient concentration could offset any
decrease in control efficiency under actual mining conditions. The
intake of dpm to any section depends on what emissions are upstream. In
this regard, it should be noted that the final rule does not require
controls on the existing fleet of light-duty equipment, except for
generators and compressors; hence, mines with significant light duty
equipment will have this exhaust as an ``intake'' in such calculations.
Table V-3 summarizes information from a series of simulations
designed to illustrate some of these variables. The simulations were
performed using MSHA's ``Estimator''--a computerized spreadsheet
designed to calculate dpm ambient levels from given equipment, and the
impact of various controls on those ambient levels. (The Estimator was
discussed in detail in an Appendix to the preamble to the proposed rule
and has since been published (Haney and Saseen, April 2000)). The
example simulated here involves a mine section with a 94 horsepower
engine, with a 0.3 gm/hp-hr dpm emission rate and a nameplate airflow,
5500 cfm. The engine was operated during an eight hour shift. The
Estimator was used to calculate the section concentrations with a paper
filter at full laboratory efficiency (95%) and two lower filter
efficiencies. The same results would be obtained for multiple pieces of
equipment provided that the nameplate airflow is additive for each
piece of equipment.

BILLING CODE 4510-43-P

[[Page 5693]]

[GRAPHIC] [TIFF OMITTED] TR19JA01.046

BILLING CODE 4510-43-C
In Table V-3, the intake dpm (second column) increases after every
fourth row. Within each group of four rows, the ventilation (first
column) increases

[[Page 5694]]

from one row to the next. The last 3 columns display the ambient dpm
concentration with a particular filter efficiency.
The first four rows represent a situation where there is no intake
dpm. If the mine is ventilated with four times the nameplate airflow
(row 4), the ambient dpm concentration using a filter operating at 95%
(last column) is reduced to 38DPM g/m\3\. If the
filter in this situation only works in practice at 85% efficiency in
removing dpm, the ambient dpm concentration is only reduced to
113DPM g/m\3\. And if the ventilation is reduced to
the nameplate airflow (first column) and the filter is only 85%
efficient, the ambient dpm climbs to 452DPM g/m\3\.
The last four rows display the parallel situation but with an
ambient intake concentration to the section of 75DPM
g/m\3\. In this situation, depending on ventilation and filter
effectiveness, the ambient dpm concentration ranges from
113DPM to 527DPM g/m\3\.
In the example discussed above--a single section mine with three 94
hp Ramcars--the airflow of 45,000 cfm represents three times the
current nameplate requirements. Many underground coal mines may use
more than the nameplate ventilation to lower methane concentrations at
the face. But if this airflow were reduced to the current nameplate
requirements, the ambient dpm would have been 1620DPM
g/m\3\, and would have been reduced by 95% effective filters
to 105DPM g/m\3\.
Based on its experience as to the general effects of mining
conditions on the expected efficiency of equipment, and on ventilation
rates, MSHA has concluded that the rule for this sector will
substantially reduce the concentrations of dpm to which underground
coal miners are exposed.
Alternatives considered. In order to ensure that the maximum
protection that is feasible for the underground mining industry as a
whole is provided, the Agency has considered some alternatives. Most
are discussed elsewhere in this preamble, but are briefly repeated here
and illustrate the extensive thought MSHA gave to this issue.
(1) Establish a Concentration Limit. MSHA considered establishing a
dpm concentration limit for this sector, as it is doing for underground
metal and nonmetal mines. A concentration limit provides operators with
flexibility to select any combination of controls that keep ambient dpm
concentrations below the limit.
The agency has concluded that it is not yet technologically
feasible to establish a dpm concentration limit for underground coal
mines. The problem is that significant questions remain as to whether
there is a sampling and analytical system that can provide consistent
and accurate measurements of dpm in areas of underground coal mines
where there is a heavy concentration of coal dust. The Agency is
continuing to work on the technical issues involved, and should it
determine that these technological problems have been resolved, it will
notify the mining community and proceed accordingly.
(2) 95% Filters on Defined Categories of Equipment. This is what
the agency initially proposed for this sector. It has the advantage of
ensuring that all controlled equipment is filtered, which some assert
is easier to keep in proper shape through observation, and others
believe provides more protection against nanoparticles. On the other
hand, such an approach may quickly become technologically infeasible as
newer, cleaner engines are introduced underground; removing 95% (or any
defined percentage) of the lower emissions of these engines is likely
to prove much more difficult. Moreover, this approach could act as a
disincentive to introduce cleaner engines underground, and thus slow
the reduction of dpm that such a replacement fleet might make possible.
Finally, the Agency determined that at this time, there is not enough
evidence about the risks of nanoparticles to regulate on that basis.
Accordingly, the agency rejected this approach in order to avoid the
problems associated with its implementation over the long term.
(3) A machine-based emissions limit with credit for extra
ventilation used in the mine. Under this approach, if the bench test of
the combined engine and filter package was conducted at the approval
plate ventilation, a mine's use of more than that level of ventilation
would be factored into the calculation of what package would be
acceptable. So if, for example, an engine equipped with a ceramic
filter can reduce emissions to 5.0 grams/hour in a test using the
approval plate ventilation, and the mine actually ventilates at twice
the name plate ventilation, the system would be deemed to reach 2.5
grams/hour under that circumstance. This alternative, however, is less
protective than the rule adopted by the agency, as it would not require
dpm emissions to be reduced as much. Accordingly, since the more
protective alternative is feasible as well, it would be inappropriate
under the law for the agency to adopt this alternative.
(4) Adjust the Time-Frame for Implementation of the Final Rule. The
final rule will not be fully implemented for several years. The
existing permissible fleet is given a full 18 months to comply, even
though the agency has determined that there are readily available paper
filters which can bring this equipment into compliance. The
implementation schedule for the existing heavy duty fleet (and
compressors and generators) extends for 4 years from the date of
promulgation, even though the agency has concluded that there are hot
gas filters readily available which can bring most of this equipment
into compliance with the final emissions limit. Accordingly, the agency
has considered whether a faster implementation schedule is feasible.
Cutting the 18 month time-frame for permissible equipment does not
appear to be practicable for the industry. Eighteen months to obtain
and install a relatively new technology is a reasonable time. Time is
needed for operators to familiarize themselves with this technology.
Also, mine personnel have to be trained in how to maintain control
devices in working order. Moreover, MSHA needs time to work with the
mining community to develop a revised approach to approving engines for
use in permissible equipment in order to accelerate the introduction of
a cleaner generation of engines into the permissible fleet.
With respect to the heavy duty fleet, the four years permitted to
meet the final emissions limit is actually two years faster than
originally proposed by the agency when 95% filters were being proposed.
As indicated in section 6 of Part II of this preamble, the development
of high efficiency hot gas filters has proceeded much faster than
expected, so that it is technologically feasible to comply more quickly
with this requirement than originally proposed. Moreover, MSHA has
determined that the cost differential to the industry of reaching the
final 2.5 micrograms/hour emission limit in 4 years instead of 6 is
minor (see REA). However, MSHA has concluded that moving up the
timeline further would create unwarranted difficulties for operators in
terms of installing the required engines and filters, and accordingly
has determined that further acceleration of this schedule would be
infeasible.
(5) Require Machine Emission Limits on all Diesel Equipment in
Underground Coal Mines. The final rule would not immediately apply to
more than 60% of the fleet--light-duty equipment other than generators
and compressors. Over time, the final rule would have an impact on the
remaining light duty fleet through controls on any new equipment
introduced underground, but it will take

[[Page 5695]]

many years before mine workers get the benefits of this approach. By
contrast, the Commonwealth of Pennsylvania has recently adopted
legislation for universal high-efficiency filtration based on an
agreement in the mining community of that state. The Pennsylvania law
requires that all diesel-powered equipment introduced into underground
coal mines in that state (essentially all equipment, given the past
ban), meet an emissions limit requirement (as well as a separate filter
requirement).
One reason asserted for not covering all light duty equipment is
that this equipment may run only intermittently, and under light loads,
hence producing less dpm than other kinds of equipment. This
proposition was supported by industry representatives during the
rulemaking, and disputed by miners during the rulemaking proceedings.
The Agency has not been able to draw any conclusions based on the mixed
evidence as to the light duty fleet as a whole; as noted previously, it
has carved out the 3% of the light duty fleet that clearly works like
heavy duty equipment, and is covering them in this rule (generators and
compressors).
A second issue is costs. The Agency decided to consider what it
would take to bring the rest of the industry up to the standard
established under the Pennsylvania agreement of universal coverage.
MSHA has calculated that such a requirement would cost the underground
coal industry an additional $9.7 to $17.4 million a year. This would be
an increase of 135-240% of the cost of the rule for the underground
coal mining industry. Since drawing conclusions concerning the level of
dpm actually produced by light duty equipment in underground coal mines
is difficult, the Agency has decided to take the approach of phasing in
emission controls for light duty outby equipment over a period of five
years. This approach significantly reduces the cost of the rule.
Eventually, dpm exposures will be reduced for all miners in all areas
of the mine.
(6) Requiring certain engines to meet defined particulate emission
standards. As discussed in part II of this preamble, the Mine Safety
and Health Advisory Committee on Standards and Regulations for Diesel-
Powered Equipment in Underground Coal Mines recommended the
establishment of a particulate index (PI), and MSHA did so in its
diesel equipment rule. Under that rule, the PI establishes the amount
of air required to dilute the dpm produced by an engine (as determined
during its approval test under subpart E of part 7) to 1000 g/
m3.
In the preamble of the diesel equipment rule, MSHA noted that mine
operators and machine manufacturers would find it useful to consider
the engine PI in selecting and purchasing decisions. The agency
explicitly deferred until this rulemaking the question of whether to
require engines used in mining environments to meet a particular PI.
In its final rule, the Agency is, in fact, using a significant
portion of the concepts embodied in the particulate index. The
determination of the quantity of dpm emitted from the machine is based
on the information from the engine approval tests in 30 CFR 7.89 as was
used to establish the particulate index. Both means of expressing the
dpm characteristics of the machine begin with determining the total
amount of dpm, expressed in grams/hour, produced by the engine over the
test cycle described in ISO 8178. The particulate index is determined
by calculating the quantity of air required to dilute that particulate
to a concentration of 1 mg/m\3\. The quantity of dpm emitted from the
machine is determined by multiplying the quantity of dpm emitted from
the engine by the filtration efficiency of the aftertreatment device.
Had the agency been able to utilize a concentration limit in this
sector, the particulate index could have been used directly to compute
an estimated level of dpm that could be achieved with various
quantities of ventilation air. As noted above, however, that approach
was found to be infeasible.
Feasibility of final rule for underground coal mining sector. The
Agency has carefully considered both the technological and economic
feasibility of the rule for the underground coal mining sector as a
whole.
Although some doubts were expressed about this during the
rulemaking proceedings, it is clear now that the technology exists to
implement the final rule's requirements. As this preamble explains in
overview in section 6 of Part II, and reiterates in connection with the
specific requirements of the rule in Part IV, there are available
emission controls which can bring all existing and contemplated future
diesel equipment into compliance with the requirements of the rule.
Paper filters have now been verified to reduce emissions from the
dirtiest permissible engines to the required limit of 2.5 grams per
hour. Ceramic filters have been certified by VERT to have the
efficiency required to reduce emissions from the dirtiest heavy duty
engines to the interim limit of 5.0 grams/hour, and for all but one
engine to the final limit of 2.5 grams/hour. Approved engines that meet
the emissions limit for newly introduced light duty equipment are
available for all categories. And as MSHA and the mining industry work
together to address aspects of the approval process that may be
inhibiting the introduction of the newer generations of engines into
underground mines, there should be no technological nor practical
barriers to further emission limit reductions.
The economic feasibility of this rule has also been carefully
considered by MSHA. The total for the final rule for underground coal
mines will be about $7 million per year. The costs per dieselized mine
are expected to be about $48,000 a year. MSHA has calculated that the
costs of the final rule amount to less than one-quarter of one percent
(0.23 percent) of the annual revenues of the dieselized underground
coal mining sector. (The methodology for this calculation is discussed
in Chapter IV of the Agency's REA). After reviewing the economic
profile of that sector, and taking into account the cost of
implementing the related diesel equipment rule, MSHA has concluded that
the rule is economically feasible for this sector as a whole.
Conclusion: Underground Coal Mines. Based on the best evidence
available to it at this time, the Agency has concluded that the final
rule for the underground coal sector meets the statutory requirement
that it attain the highest degree of health and safety protection for
the miners in that sector, with feasibility a consideration.

VI. Regulatory Impact Analyses

This part of the preamble reviews several impact analyses which the
Agency is required to provide in connection with its final rulemaking.
The full text of these analyses can be found in the Agency's Regulatory
Economic Analysis (REA).

(A) Costs and Benefits: Executive Order 12866

In accordance with Executive Order 12866, MSHA has prepared a
Regulatory Economic Analysis (REA) of the estimated costs and benefits
associated with the final rule for the underground coal sector.
The key conclusions of the REA are summarized, together with cost
tables, in part I of this preamble (see Item number 7). The complete
REA is part of the record of this rulemaking, and is available from
MSHA.
The Agency considers this rulemaking ``significant'' under section
3(f) of Executive Order 12866, and has so

[[Page 5696]]

designated the rule in its semiannual regulatory agenda (RIN 1219-
AA74). However, based upon the REA, MSHA has determined that the final
rule does not constitute an ``economically significant'' regulatory
action pursuant to section 3(f)(1) of Executive Order 12866.

(B) Regulatory Flexibility Certification.

The Regulatory Flexibility Act (RFA) requires regulatory agencies
to consider a rule's economic impact on small entities. Under the RFA,
MSHA must use the Small Business Administration's (SBA's) criterion for
a small entity in determining a rule's economic impact unless, after
consultation with the SBA Office of Advocacy, MSHA establishes an
alternative definition for a small mine and publishes that definition
in the Federal Register for notice and comment. For the mining
industry, SBA defines ``small'' as a mine with 500 or fewer workers.
MSHA traditionally has considered small mines to be those with fewer
than 20 workers. To ensure that the final rule conforms with the RFA,
MSHA has analyzed the economic impact of the final rule on mines with
500 or fewer workers (as well as on those with fewer than 20 workers).
MSHA has determined that the final rule would not have a
significant economic impact on small mines, whether a small mine is
defined as one with 500 or fewer workers or one with fewer than 20
workers.
Using the Agency's traditional definition of a small mine, which is
one employing fewer than 20 workers, the estimated yearly cost of the
final rule on small underground coal mines will be about $7,400. This
estimated annualized cost for small mines compares to estimated annual
revenues of approximately $9.1 million for the class of small
underground coal mines.
Using SBA's definition of a small mine, which is one employing 500
or fewer workers, the estimated yearly cost of the final rule for all
small underground coal mines would be about $6.1 million. This
estimated cost for small mines compares to estimated annual revenues of
approximately $2.95 billion for small underground coal mines, using
SBA's criteria.
Based on its analysis, MSHA has determined that the final rule
would not have a significant economic impact on a substantial number of
small mines. MSHA has so certified these findings to the Small Business
Administration. The factual basis for this certification is discussed
in Chapter V of the REA for this rule.

For purposes of the Unfunded Mandates Reform Act of 1995, the final
rule does not include any Federal mandate that may result in increased
expenditures by State, local, or tribal governments, or increased
expenditures by the private sector of more than $100 million.

(D) Paperwork Reduction Act of 1995

The final rule contains information collections which are subject
to review by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (PRA95). The final rule will impose
paperwork burden hours on underground coal mine operators that use
diesel powered equipment and on manufacturers of diesel powered
equipment. For mine operators that use diesel powered equipment, the
final rule imposes two types of burden hours. First, there are burden
hours that will occur only in the first year the rule is in effect
(hereafter known as first year burden hours). Second, there are burden
hours that will occur every year that the rule is in effect, starting
with the first year (hereafter known as ``annual'' burden hours).
Manufacturers of diesel equipment that are affected by this rule, will
incur only first year burden hours.

Mine Operators

First Year Burden Hours
In the first year that the rule takes effect, mine operators will
incur 997 burden hours, which is composed of 349 first year burden
hours (from Table VI-1) and 648 annual burden hours (from Table VI-
1(a)). The related costs to mine operators will be $33,049, of which
$12,627 is related to first year burden hours (from Table VI-1) and
$20,422 is related to annual burden hours (from Table VI-1(a)).
Burden Hours After the First Year
Beginning in the second year the rule takes effect and continuing
every year thereafter, mine operators will incur 648 burden hours and
related costs of $20,422 (from Table VI-1(a)).

Manufacturers

First Year Burden Hours
In the first year that the rule is in effect, manufacturers will
incur 700 burden hours and related costs of $35,000 (from Table VI-2).
After the first year, manufacturers will not incur any burden hours or
related costs.

Table VI-1.--Mine Operators--First Year Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
20 emp. 20 to 500 emp. >500 emp. Total
Detail ---------------------------------------------------------------------------------------
Hrs. Costs Hrs. Costs Hrs. Costs Hrs. Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
75.1915/72.503.................................................. 1.0 $28 50 $1,299 1.0 $14 52 $1,341
72.510.......................................................... 0.6 29 11 568 0.1 4 12 602
72.520.......................................................... 9.0 399 267 10,027 9.0 257 285 10,684
---------------------------------------------------------------------------------------
Total..................................................... 11.0 456 329 11,895 10.0 276 349 12,627
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table VI-1(a).--Mine Operators--Annual Burden Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
20 emp. 20 to 500 emp. >500 emp. Total
Detail ----------------------------------------------------------------------------------------
Hrs. Costs Hrs. Costs Hrs. Costs Hrs. Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
72.510......................................................... 5.0 $167 563 $17,971 28.0 $922 597 $19,061
72.1915/72.503................................................. 0 0 4 76 0.3 5 4 82
72.520......................................................... 0.3 8 43 1,177 3.5 94 47 1,279
----------------------------------------------------------------------------------------
Total.................................................... 5.0 176 610 19,225 32.0 1,021 648 20,422
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 5697]]

Table VI-2.--Manufacturers--Annual Burden Hours
------------------------------------------------------------------------
Detail Hrs. Costs
------------------------------------------------------------------------
Amended Applications.......................... 700 $35,000
------------------------------------------------------------------------

The paperwork provisions for the proposed rule were approved under
OMB Control Number 1219-0124. Our paperwork submission summarized above
is explained in detail in the final REA. The REA includes the estimated
costs and assumptions for each final paperwork requirement related to
this final rule. A copy of the REA is available from us. This final
rule is being submitted to OMB under the same control number.
Respondents are not required to respond to any collection of
information unless it displays a current valid OMB control number.

(E) National Environmental Protection Act

The National Environmental Policy Act (NEPA) of 1969 requires each
Federal agency to consider the environmental effects of final actions
and to prepare an Environmental Impact Statement on major actions
significantly affecting the quality of the environment. MSHA has
reviewed the final rule in accordance with NEPA requirements (42 U.S.C.
4321 et seq.), the regulations of the Council of Environmental Quality
(40 CFR Part 1500), and the Department of Labor's NEPA procedures (29
CFR Part 11). As a result of this review, MSHA has determined that this
rule will have no significant environmental impact.

(F) Executive Order 12360 Governmental Actions and Interference With
Constitutionally Protected Property Rights

This final rule is not subject to Executive Order 12360,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, because it does not involve implementation of a policy
with takings implications.

(G) Executive Order 13045 Protection of Children from Environmental
Health Risks and Safety Risks

In accordance with Executive Order 13045, MSHA has evaluated the
environmental health and safety effects of the final rule on children.
The Agency has determined that the rule will not have an adverse impact
on children.

(H) Executive Order 12988 Civil Justice Reform

The Agency has reviewed Executive Order 12988, Civil Justice
Reform, and determined that the final rule will not unduly burden the
Federal court system. The rule has been written so as to provide a
clear legal standard for affected conduct, and has been reviewed
carefully to eliminate drafting errors and ambiguities.

(I) Executive Order 13084 Consultation and Coordination with Indian
Tribal Governments

MSHA certifies that the final rule will not impose substantial
direct compliance costs on Indian tribal governments.

(J) Executive Order 13132 Federalism

MSHA has reviewed the final rule in accordance with Executive Order
13132 regarding federalism and has determined that it does not have
``federalism implications.'' The final rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''

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[[Page 5702]]

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Supplementary References

Below is a list of supplemental references that MSHA reviewed
and considered in the development of the proposed rule. These
documents are not specifically cited in the preamble discussion, but
are applicable to MSHA's findings:
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Exhaust Particles and Antigen in Mice Modulated Cytokine Productions
in Cervical Lymph Node Cells,'' International Archives of Allergy
and Immunology, 108:268-273, 1995.
Fujimaki, Hidekazu, et al., ``IL-4 Production in Mediastinal
Lymph Node Cells in Mice Intratracheally Instilled with Diesel
Exhaust Particles and Antigen,'' Toxicology, 92:261-268, 1994.
Fujimaki, Hidekazu, et al., ``Inhalation of Diesel Exhaust
Enhances Antigen-Specific IgE Antibody Production in Mice,''
Toxicology, 116:227-233, 1997.
Ikeda, Masahiko, et al., ``Impairment of Endothelium-Dependent
Relaxation by Diesel Exhaust Particles in Rat Thoracic Aorta,''
Japanese Journal of Pharmacology, 68:183-189, 1995.
Muranaka, Masaharu, et al., ``Adjuvant Activity of Diesel-
Exhaust Particles for the Production of IgE Antibody in Mice,'' J
Allergy Clin Immunology, 77:616-623, 1986.
Northridge, Mary, ``Diesel Exhaust Exposure Among Adolescents in
Harlem: A Community-Driven Study,'' American Journal of Public
Health, (89) 998-1002, July 1999.
Scientific Review Panel, Findings on the Report on Diesel
Exhaust as a Toxic air Contaminant, as adopted at the Panel's April
22, 1998 meeting.
Stayner, Leslie, ``Protecting Public Health in the Face of
Uncertain Risks: The Example of Diesel Exhaust,'' American Journal
of Public Health, (89) 991-993, July 1999.
Takafuji, Shigeru, et al., ``Diesel-Exhaust Particulates
Inoculated by the Intranasal Route Have an Adjuvant Activity for IgE
Production in Mice,'' J Allergy Clin Immunol, 79:639-645, 1987.
Terada, Nobushisa, et al., ``Diesel Exhaust Particulates Enhance
Eosinophil Adhesion to Nasal Epithelial Cells and Cause
Degranulation,'' International Archives of Allergy and Immunology,
114:167-174, 1997.
Yang, Hui-Min, et al., ``Effects of Diesel Exhaust Particles on
the Release of Interleukin-1 and Tumor Necrosis Factor-Alpha from
Rat Alveolar Macrophages,'' Experimental Lung Research, 23:269-284,
1997.

List of Subjects in 30 CFR Part 72

Coal, Health standards, Mine safety and health, Underground mines,
Diesel particulate matter.

Dated: January 8, 2001.
Robert A. Elam,
Acting Assistant Secretary for Mine Safety and Health.
Chapter I of Title 30 of the Code of Federal Regulations is hereby
amended as follows:

PART 72--[AMENDED]

1. The authority citation for Part 72 continues to read as follows:

Authority: 30 U.S.C. 811, 813(h), 957, 961.

2. Part 72 is amended by adding Subpart D to read as follows:

Subpart D--Diesel Particulate Matter--Underground Areas of
Underground Coal Mines

72.500 Emission limits for permissible diesel-powered equipment.
72.501 Emission limits for nonpermissible heavy-duty diesel-
powered equipment, generators and compressors.
72.502 Requirements for nonpermissible light-duty diesel-powered
equipment other than generators and compressors.
72.503 Determination of emissions; filter maintenance; definition
of ``introduced''.
72.510 Miner health training.
72.520 Diesel equipment inventory.

Subpart D--Diesel Particulate Matter--Underground Areas of
Underground Coal Mines

Sec. 72.500 Emission limits for permissible diesel-powered equipment.

(a) Each piece of permissible diesel-powered equipment introduced
into an underground area of an underground coal mine after March 20,
2001 must not emit no more than 2.5 grams per hour of diesel
particulate matter.
(b) As of July 19, 2002, each piece of permissible diesel-powered
equipment operated in an underground area of an underground coal mine
must not emit no more than 2.5 grams per hour of diesel particulate
matter.

Sec. 72.501 Emission limits for nonpermissible heavy-duty diesel-
powered equipment, generators and compressors.

(a) Each piece of nonpermissible heavy-duty diesel-powered
equipment (as defined by Sec. 75.1908(a) of this part), generator or
compressor introduced into an underground area of an underground coal
mine after March 20, 2001 must not emit no more than 5.0 grams per hour
of diesel particulate matter.

[[Page 5705]]

(b) As of July 21, 2003, each piece of nonpermissible heavy-duty
diesel-powered equipment (as defined by Sec. 75.1908(a) of this part),
generator or compressor operated in an underground area of an
underground coal mine must not emit no more than 5.0 grams per hour of
diesel particulate matter.
(c) As of January 19, 2005, each piece of nonpermissible heavy-duty
diesel-powered equipment (as defined by Sec. 75.1908(a) of this part),
generator or compressor operated in an underground area of an
underground coal mine must not emit no more than 2.5 grams per hour of
diesel particulate matter.
(d) Notwithstanding the other provisions of this section, a
generator or compressor that discharges its exhaust directly into
intake air that is coursed directly to a return air course, or
discharges its exhaust directly into a return air course, is not
subject to the applicable requirements of this section.

Sec. 72.502 Requirements for nonpermissible light-duty diesel-powered
equipment other than generators and compressors.

(a) Each piece of nonpermissible light-duty diesel-powered
equipment (as defined by Sec. 75.1908(b) of this part), other than
generators and compressors, introduced into an underground area of an
underground coal mine after March 20, 2001 must not emit no more than
5.0 grams per hour of diesel particulate matter.
(b) A piece of nonpermissible light-duty diesel-powered equipment
must be deemed to be in compliance with the requirements of paragraph
(a) of this section if it utilizes an engine which meets or exceeds the
applicable particulate matter emission requirements of the
Environmental Protection Administration listed in Table 72.502-1, as
follows:

Table 72.502-1
------------------------------------------------------------------------
EPA requirement EPA category PM limit
------------------------------------------------------------------------
40 CFR 86.094- light duty vehicle.. 0.1 g/mile.
8(a)(1)(I)(A)(2).
40 CFR 86.094- light duty truck.... 0.1 g/mile.
9(a)(1)(I)(A)(2).
40 CFR 86.094- heavy duty highway 0.1 g/bhp-hr.
11(a)(1)(iv)(B). engine.
40 CFR 89.112(a)............ Tier 2 nonroad...... Varies by power:
kW (hp11)........... 0.80 g/kW-hr (0.60 g/
bhp-hr).
8kW19 0.80 g/kW-hr (0.60 g/
(11hp25). bhp-hr).
19kW37 0.60 g/kW-hr (0.45 g/
(25hp50). bhp-hr).
37kW75 0.40 g/kW-hr (0.30 g/
(50hp100 bhp-hr).
).
75kW130 0.30 g/kW-hr (0.22 g/
(100hp17 bhp-hr).
5).
130kW225 0.20 g/kW-hr (0.15 g/
(175hp30 bhp-hr).
0).
225kW450 0.20 g/kW-hr (0.15 g/
(300hp60 bhp-hr).
0).
------------------------------------------------------------------------
Notes: ``g'' means grams; ``kW'' means kilowatt; ``hp'' means
horsepower; ``g/kW-hr'' means grams/kilowatt-hour; ``g/bhp-hr'' means
grams/brake horsepower-hour.

(c) The requirements of this section do not apply to any diesel-
powered ambulance or fire fighting equipment that is being used in
accordance with the mine fire fighting and evacuation plan under
Sec. 75.1101-23.

Sec. 72.503 Determination of emissions; filter maintenance; definition
of ``introduced''.

(a) MSHA will determine compliance with the emission requirements
established by this part by using the amount of diesel particulate
matter emitted by a particular engine determined from the engine
approval pursuant to Sec. 7.89(a)(9)(iii)(B) or Sec. 7.89(a)(9)(iv)(A)
of this title, with the exception of engines deemed to be in compliance
by meeting the EPA requirements specified in Table 72.502-1
(Sec. 72.502(b)).
(b) Except as provided in paragraph (c) of this section, the amount
by which an aftertreatment device can reduce engine emissions of diesel
particulate matter as determined pursuant to paragraph (a) must be
established by a laboratory test:
(1) on an approved engine which MSHA has determined, pursuant to
paragraph (a) of this section, to emit no more diesel particulate
matter than the engine being used in the piece of diesel-powered
equipment in question;
(2) using the test cycle specified in Table E-3 of Sec. 7.89 of
this title, and following a test procedure appropriate for the
filtration system, by a laboratory capable of testing engines in
accordance with the requirements of Subpart E of part 7 of this title;
and
(3) with an aftertreatment device representative of that being used
on the piece of diesel-powered equipment in question.
(c) In lieu of the laboratory tests required by paragraph (b), the
Secretary may accept the results of tests conducted or certified by an
organization whose testing standards are deemed by the Secretary to be
as rigorous as those set forth by paragraph (b) of this section; and
further, the Secretary may accept the results of tests for one
aftertreatment device as evidencing the efficiency of another
aftertreatment device which the Secretary determines to be essentially
identical to the one tested.
(d) Operators must maintain in accordance with manufacturer
specifications and free of observable defects, any aftertreatment
device installed on a piece of diesel equipment upon which the operator
relies to remove diesel particulate matter from diesel emissions.
(e) For purposes of Secs. 72.500(a), 72.501(a) and 72.502(a), the
term ``introduced'' means any piece of equipment whose engine is a new
addition to the underground inventory of engines of the mine in
question, including newly purchased equipment, used equipment, and
equipment receiving a replacement engine that has a different serial
number than the engine it is replacing. ``Introduced'' does not include
a piece of equipment whose engine was previously part of the mine
inventory and rebuilt.

Sec. 72.510 Miner health training.

(a) Operators must provide annual training to all miners at a mine
who can reasonably be expected to be exposed to diesel emissions on
that property. The training must include--
(1) The health risks associated with exposure to diesel particulate
matter;
(2) The methods used in the mine to control diesel particulate
matter concentrations;
(3) Identification of the personnel responsible for maintaining
those controls; and
(4) Actions miners must take to ensure the controls operate as
intended.
(b)(1) An operator must keep a record of the training at the mine
site for one year after completion of the training. An

[[Page 5706]]

operator may keep the record elsewhere if the record is immediately
accessible from the mine site by electronic transmission.
(2) Upon request from an authorized representative of the Secretary
of Labor, the Secretary of Health and Human Services, or from the
authorized representative of miners, mine operators must promptly
provide access to any such training record. Whenever an operator ceases
to do business, that operator must transfer the training records, or a
copy, to any successor operator who must maintain them for the required
period.

Sec. 72.520 Diesel equipment inventory.

(a) The operator of each mine that utilizes diesel equipment
underground, shall prepare and submit in writing to the District
Manager, an inventory of diesel equipment used in the mine. The
inventory shall include the number and type of diesel-powered units
used underground, including make and model of unit, type of equipment,
make and model of engine, serial number of engine, brake horsepower
rating of engine, emissions of engine in grams per hour or grams per
brake horsepower-hour, approval number of engine, make and model of
aftertreatment device, serial number of aftertreatment device if
available, and efficiency of aftertreatment device.
(b) The mine operator shall make changes to the diesel equipment
inventory as equipment or emission control systems are added, deleted
or modified and submit revisions, to the District Manager, within 7
calendar days.
(c) If requested, the mine operator shall provide a copy of the
diesel equipment inventory to the representative of the miners within 3
days of the request.

[FR Doc. 01-995 Filed 1-18-01; 8:45 am]
BILLING CODE 4510-43-P

Notices For
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[[pp. 5675-5706]] Diesel Particulate Matter Exposure of Underground Coal Miners

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