Air Quality, Chemical Substances, and Respiratory Protection Standards

AGENCY:

Mine Safety and Health Administration (MSHA), Labor.

ACTION:

Withdrawal of proposed rule.

SUMMARY:

This document withdraws a proposed rule that would have amended existing health standards for coal and metal and nonmetal mines to address hazardous substances, permissible exposure limits for certain substances, exposure monitoring, carcinogens, and respiratory protection programs. MSHA developed this proposed rule in 1989, and published a final rule addressing only abrasive blasting and drill dust control, on February 18, 1994. MSHA's decision to withdraw the remaining portions of this proposed rule was the result of changes in agency priorities and the possible adverse effects of unfavorable case law on the proposed rule.

DATES:

With the exception of the final rule amendments published on February 18, 1994 (59 FR 8318), the proposed rule published on August 29, 1989 (54 FR 35760), is withdrawn as of September 26, 2002.

FOR FURTHER INFORMATION CONTACT:

Marvin W. Nichols, Jr., Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, Room 2313, Arlington, Virginia 22209-3939, Nichols-Marvin@msha.gov, (202)693-9440 (telephone) or (202)693-9441 (facsimile). This document is available in alternative formats, such as large print and electronic format, and can be accessed on MSHA's internet site, http://www.msha.gov,, at the “Statutory and Regulatory Information” link.

SUPPLEMENTARY INFORMATION:

A. Background

On August 29, 1989, MSHA published, at 54 FR 35760, the proposed rule which would have become final in three phases. The rulemaking used a comprehensive, integrated approach that addressed a variety of complex occupational health issues. On October 19, 1989, MSHA extended the comment period to March 2, 1990 (54 FR 43026) and received extensive public comment.

On February 18, 1994, MSHA completed, at 59 FR 8318, the first phase of this proposal as a final rule addressing abrasive blasting and drill dust control. This rule became effective on April 19, 1994.

B. Reasons for Withdrawal

MSHA's decision to withdraw this proposed rule was the result of changes in agency priorities and the possible adverse effect on this proposed rule of the decision in AFL-CIO et. al. v. OSHA, 965 F.2d (11th Cir. 1992).

It has been more than 13 years since the proposal was published and more than 12 years since the comments were received.

MSHA acknowledges that the TLVs are more than 25 years old. However, at this point, MSHA cannot proceed without reevaluating its approach to the complex issues that this proposed rule addresses and developing alternatives using more current scientific and technical information.

The proposal was structured to resolve a number of potential health hazards. Such a comprehensive approach to rulemaking is no longer a viable means to address such concerns, especially in light of the Eleventh Circuit decision in AFL-CIO vacating a similar OSHA standard. The AFL-CIO court vacated OSHA's entire air contaminants rulemaking, finding that the agency had not met its statutory burden in establishing the PELs for each of the 428 contaminants regulated by the standard.

For the reasons stated herein, with the exception of provisions published at 59 FR 8318, the proposed rule is withdrawn. This document does not preclude any agency action that MSHA may find to be appropriate in the future.