# Presentation: 705563

## METAL AND NONMETAL DIESEL PARTICULATE MATTER (DPM) STANDARD

**Compliance Guide Q&As****draft June 2006**

## draft compliance guide 

- guide posted on website remains in effect until this one is finalized
- draft guide will be posted for 30 days after the last workshop to allow time for comments
**August 15**
- many Q & As are unchanged
- will cover most of changes today

## Comments/questions 
e-mail to 
Cash.Doris@dol.gov 

or mail to 
	Doris CashMetal/Nonmetal Mine Safety and Health, Health Division, Room 24511100 Wilson Blvd.Arlington, VA 22209-2296
	phone: 202-693-9631

- e-mail to
- Cash.Doris@dol.gov
- or mail to
**	****Doris Cash****Metal/Nonmetal Mine Safety and Health, Health Division, Room 2451****1100 Wilson Blvd.****Arlington, VA 22209-2296**
**	****phone: 202-693-9631**

## Why is the initial final limit EC and the other final limits are TC?

- In 2005, we converted the 400 μg/m3  total carbon limit to 308 μg/m3 elemental carbon.
**	****If the purpose of the rule is to limit a miner's exposure to DPM, why does the standard restrict exposure to elemental carbon?**
- use the EC measurement as the surrogate to ensure that the result is representative of DPM without interferences

## MSHA will determine compliance with the EC limit based on a single full-shift personal sample of the affected miner. 

- EC **≤**** [308 x error factor] **= Not an overexposure.
- EC >**[308 x error factor]**
- =** **An overexposure has occurred.
- error factor for 308 is 1.12
**308x1.12 = 345**

## How will MSHA determine a miner's overexposure to the final total carbon standards of 350 μg/m3 and 160 μg/m3?

**For the 350, treat like interim 400 limit under Settlement Agreement:**
**TC = EC + OC**
**TC = EC x 1.3**
**Compliance  based  on  **_***lower***_** **** of **
**   ****[EC + OC] or [EC x 1.3]**
**develop appropriate error factor**
***For the 160, to be determined in a separate rulemaking***

## EXTENSION OF TIME  IN WHICH TO MEET THE FINAL CONCENTRATION LIMIT  §57.5060(c) 

**your mine requires additional time to come into compliance with the final DPM limit**
** ****technological OR economic constraints**
**When can you apply?**
**file an application with the District Manager any time you believe there are technological or economic constraints**

## DM determines it is infeasible for you to achieve compliance with the final limit using engineering and administrative controls 

- one year (renewable)
- If affected miners are included in a respiratory protection program which meets the requirements of § 57.5060(d)
- you are in compliance and no citation will be issued.
-  We will periodically check to determine current DPM exposures and your ability to** **implement new control technology.

## If the next lower final limit goes into effect before the one year is up, do I have to re-apply?

- The extension would remain in effect for the period granted.
- If controls become feasible at any time the extension is in effect, you must implement those controls.

## MSHA will consider both economic and technological feasibility 

- Technological and economic feasibility will be assessed on a case-by-case basis.
- You must demonstrate that there is no cost-effective solution to reducing a miner’s exposure to DPM.

## Has the mine operator exhausted all feasible engineering and administrative controls before using respiratory protection to supplement controls?

- consideration of numerous factors
- the specific mining conditions
- type of mining equipment used
- nature of the overexposure
- controls used by the mine operator
- MSHA policy and case law governing the economic and technological feasibility of controls

## What do I have to include in the application for a special extension?

- information that explains why you believe engineering and administrative controls sufficient to achieve compliance with the applicable limit are economically or technologically infeasible
- the most recent DPM monitoring results
- the actions you intend to take during the extension period to minimize exposure of miners to DPM

## SAMPLE APPLICATION example of a cover letter

- Date of Application
- District Manager
- Your MSHA District Office
- Street
- City, State Zip code
- Dear District Manager:
- I am the mine operator of  [insert Mine Name, Mine Operator’s Name, Mine ID  XX-XXXXX].  I am applying for an extension of time to come into compliance with the final DPM limit established in § 57.5060 (b) due to technological and economic constraints.  Attached is documentation supporting that controls are technologically and economically infeasible at this time to reduce the miner’s exposure to the final DPM limit, including specific cost data, our unique mining conditions, the implementation difficulties we’ve faced, and the unavailability of controls.  Also enclosed are the most recent DPM monitoring results and the actions I will take during the extension to minimize exposure of miners to DPM.
- I have posted a copy of this application at the mine site for at least 30 days prior to the date of this application, and have provided another copy to the authorized representative of miners.   Please contact me at this phone number and address if you need additional information:  [insert your phone number, your address ].
- Sincerely,
- -your signature -
- Your Name** **

## Supporting documentation 

- information that shows controls are technologically or economically infeasible
- specific cost data
- unique mining conditions
- implementation difficulties
- effects on productivity
- unavailability of controls
- miners' DPM exposures
- the occupations and mine areas for which you are seeking an extension
- and any other relevant information

## Feasibility

- Ventilation
- mine or section map showing brattice lines, fans, and working areas.
- Clean engines
- Environmental cabs
- Diesel Particulate Filters (DPFs)
- equipment list with make, model, year, hp,  estimated % usage
- Alternative fuels and fuel additives

## Feasibility

- Maintenance
- measured improvements
- Work practices
- restricted idling
- DPM sampling results and how they relate to the controls you've tried
- your monitoring results
- MNM and Tech Support, NIOSH

## Feasibility

- controls
- tried and rejected
- implemented
- planned
- Costs of controls
- other economic information to support buying or not buying controls

## The actions you will be taking to minimize the exposure of miners to DPM

- monitoring
- maintaining controls and respiratory protection
- other good faith actions

## post the application before filing with the District Manager 

- post one copy of the application at the mine site for at least 30 days prior to the date of application
- provide a copy to the authorized representative of miners

## if the application for a special extension is approved...

- comply with the terms of the approved application for a special extension for the duration of the extension
- post a copy of the approved application at the mine site for the duration of the special extension period
- provide a copy of the approved application to the authorized representative of miners.

## if the application for a special extension is approved...

- Miners whose exposure to DPM continues to exceed the applicable DPM limit will be required to wear respiratory protection
- PPE is not a substitute for feasible engineering and administrative controls.
- implement all feasible engineering and administrative controls
- required to maintain these engineering and administrative controls

## What may I do if my application for a special extension is denied by the District Manager?

- The Mine Act affords mine operators adequate due process rights to a hearing on the merits before an administrative law judge (ALJ) of the independent Commission.
-  If you disagree with the ALJ’s decision, you may request an appeal before the Commission.
- Any person adversely affected by a determination of the Commission may obtain review from a U.S. court of appeals for the applicable circuit.

## §57.5060(d)  RESPIRATORY PROTECTION

**respiratory protection is allowed when**
-  controls do not reduce a miner’s DPM exposure to the PEL
- controls are infeasible
- controls do not produce significant reductions in DPM exposures
- controls must be used to reduce the miner’s exposure to as low a level as feasible AND          be supplemented with respiratory protection in accordance with § 57.5060(d).

## Respiratory protection is permitted only after feasible engineering and administrative controls have been implemented. 

- first have a physician or licensed health care professional (PLHCP) make a written medical determination that the miner can wear a respirator
- you must be in accordance with a respiratory protection program that meets the requirements of §57.5060(d)

## You must use an air-purifying respirator equipped with filters that meet one of the following criteria:

- Certified by NIOSH under 30 C.F.R. Part 11 as high efficiency particulate air (HEPA)        filter
- Certified by NIOSH under 42 C.F.R. Part 84 as 99.97% efficient
- Certified by NIOSH for DPM

- NIOSH approved air purifying respirators with R100 or P100 filter
- R-series filters or respirators cannot be used for more than one work shift.
-  Respirators with N-series filters cannot be used for compliance with the DPM standard.

**provided the proper change out frequency **
**is followed**

## What about PAPRS?

- powered air purifying respirators with HEPA filters will comply with the MSHA requirements.
- HEPA filters are not currently tested by NIOSH for degradation from oil exposures.
-  HEPA filters should be replaced after a use during a single shift.

## This applies to the complete range of approved respirators selected following the NIOSH Respirator Selection Logic, using the MSHA permissible exposure limit. 

NIOSH issues certificates of approval only for completely assembled respirators.  Respirator filters or filter assemblies are not certified as separate parts. 

- NIOSH issues certificates of approval only for completely assembled respirators.  Respirator filters or filter assemblies are not certified as separate parts.

## Air purifying respirators with particulate filters and filtering facepieces are available in R100 and P100 classes. 

There are currently no approved R100 filtering facepiece (disposable particulate respirators) respirators. 

Air purifying respirators, including filtering facepieces, may be used providing the protection factor is adequate for the exposure. 

- There are currently no approved R100 filtering facepiece (disposable particulate respirators) respirators.
- Air purifying respirators, including filtering facepieces, may be used providing the protection factor is adequate for the exposure.

## a respiratory protection program

- a medical evaluation of the miner’s ability to wear a respirator before the miner is required to be fit tested or to wear a respirator at the mine
- selecting an appropriate respirator
- purchasing respirators
- providing respiratory training to miners
- conducting fit testing
- other required components of the respiratory protection program

## key elements

- a.	a written determination by a licensed health care professional (PLHCP) of the miner’s ability to wear a respirator;
- b.	respirator selection that is appropriate for hazards; and
- c.	respirator use.

## Employee training

- separate from the DPM training required by §57.5070
- the nature of the hazard and what may happen if the respirator is not used
- feasible engineering and administrative controls
- the efforts made or being made to eliminate the need for respirators

## Employee training

- why this is the proper type of respirator for the particular purpose
- respirator use, capabilities, and limitations
- having the respirator fitted
- how the respirator should be worn, how to adjust it, and how to determine if it fits properly

## Respirator cleaning and disinfecting

- cleaning and disinfecting respirators on a regular basis, or after each use if they are used by more than one person
- for disposable respirators, a provision for employees to obtain a new respirator when theirs becomes unusable, unsanitary, or exhibits excessive breathing resistance.
**Respirator storage**
-  provision for convenient, clean, and sanitary storage.
** ****	**

## Respirator inspection

- provision for respirator inspection
- before and after each use
-  during cleaning
-   Deficiencies identified must be corrected.
**Surveillance **** **
- work area must be periodically checked
-  ensure respirator use
- to monitor conditions, employee exposure, and employee stress due to breathing resistance.
** ****	**

## Program evaluation

- The respiratory protection program must be evaluated regularly to ensure continued effectiveness.

## How long will MSHA give me to establish a respiratory protection program for a miner that is overexposed to DPM?

- in most cases, mine operators should not take more than two weeks to implement the primary components of a respiratory protection program

## What is a PLHCP?

- physician or other licensed health care professional
-  a physician, physician’s assistant, nurse, emergency medical technician or other person qualified to provide medical or occupational health services
- MSHA also defined a “health professional” under the Hazard Communication standards at 30 CFR 47.11.

## How long do I have to find a PLHCP and conduct a medical evaluation to determine if the miner can wear a respirator, and provide the miner with a respirator if the miner is able to wear one? 

- As soon as feasible
- Be prepared to immediately implement the necessary respiratory requirements if controls are not successful in reducing the miner’s exposure to within the PEL

## Do I have to pay for the PLHCP to test the miner to determine if the miner can wear a respirator?

**Yes.  These tests are to be conducted at no cost to the miner. **

## What type of test does the PLHCP have to conduct to determine the miner’s ability to wear a respirator?

-  If the PLHCP determines that the miner cannot wear a negative pressure respirator, the mine operator must make certain that the PLHCP evaluates the miner’s ability to wear a powered air purifying respirator (PAPR).
- The PLHCP may use any medically valid procedure for making this determination.

## You must provide the miner with an opportunity to discuss the miner’s evaluation results with the PLHCP before you obtain the written determination from the PLHCP. 
If the miner has concerns with or disagrees with the PLHCP’s medical determination
the miner has the right to submit additional evidence of their medical condition within 30 days of their discussion of the PLHCP’s determination. 

**If the miner has concerns with or disagrees with the PLHCP’s medical determination**
- the miner has the right to submit additional evidence of their medical condition within 30 days of their discussion of the PLHCP’s determination.

##  Afterwards, you must obtain a written determination from the PLHCP regarding the miner’s ability to wear a respirator.

**How much time do I have to provide the affected miner with a copy of the PLHCP’s determination as to whether the miner is medically able to wear a respirator?**** **
**You must exercise diligence in making certain that the PLHCP provides a copy of the determination to the miner.**

## Does the miner have to wear the respirator for the full shift?

- Yes, if the miner continues to work in the affected occupation or area of the mine for the entire shift.
- You must either provide the powered air purifying respirator or transfer the miner in accordance with the requirements of this section.  ** **

## You must conduct a medical evaluation to determine if the miner can wear a respirator... 

- before a miner is required to be fit tested or required to wear a respirator in your mine
- when you have reason to believe that conditions have changed which could adversely affect the miner’s ability to wear the respirator

## When and where do I have to transfer a miner?

- You must transfer the miner within 30 days of the final determination of the PLHCP that the miner is unable to wear a respirator.
- The miner must be transferred to an area of the same mine where respiratory protection is not required.** **

## What if I don't have a position where I can transfer the miner that is within the PEL? 

- You can't require a miner to wear a respirator who has been found by the PLHCP to be unable to wear a respirator.
- You can't allow the miner to work in an occupation or area of the mine where the miner’s exposure exceeds the applicable limit.** **

## Do I have to transfer a miner who is medically unable to wear a respirator if the miner does not want to transfer? 

- Yes, if you have a job to which the miner can be transferred.

## What salary do I have to pay a transferred miner?

- no less compensation than the miner received for their regular rate of pay in the job classification that the miner held immediately before the transfer.** **
- Wage increases for transferred miners must be based on the new work classification.** **

## Do I have to keep any records related to medical evaluation and transfer of a miner?

- Keep a record of the identification of the PLHCP and the PLHCP’s written determination of the miner’s ability to wear a respirator.** **
- Keep the record for the duration of the affected miner’s employment plus six months.

## §57.5075  DIESEL PARTICULATE RECORDS

| Record | Section reference | Retention time |
| --- | --- | --- |
| 1.  Approved application for extension of 
time to comply with exposure limits. | 57.5060(c) | Duration of extension |
| 2.  Identity of PLHCP and most recent
  written determination of miner’s ability
  to wear a respirator. | 57.5060(d) | Duration of miner’s employment plus 6 months.  |
| 3.  Purchase records noting sulfur content of diesel fuel | 57.5065(a) | 1 year beyond date of
purchase |
| 4.  Maintenance log | 57.5066(b) | 1 year after date any 
equipment is tagged |
| 5.  Evidence of competence to perform maintenance | 57.5066(c) | 1 year after date maintenance performed |
| 6.  Annual training provided to potentially exposed miners | 57.5070(b) | 1 year beyond date training completed |
| 7.  Record of corrective action | 57.5071(c) | Until the corrective action is completed |
| 8.  Sampling method used to effectively evaluate a miner’s personal exposure, and sample results | 57.5071(d) | 5 years from sample date |

## QUESTIONS?