Title of Regulation: 4VAC25-90. Regulations Governing the Use of Diesel-Powered Equipment in Underground Coal Mines (amending 4VAC25-90-60).

Statutory Authority: §§ 45.1-161.3, 45.1-161.106, and 45.1-161.206 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 4, 2012.

Effective Date: July 19, 2012.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.

Basis: Sections 45.1-161.3 (4) and 45.1-161.106 A of the Code of Virginia authorize the Chief of the Department of Mines, Minerals and Energy's Division of Mines, in consultation with the Coal Mine Safety Board, to promulgate regulations to ensure safe and healthy working conditions in underground mines in the Commonwealth. Also, § 45.1-161.206 of the Code of Virginia specifically directs the chief to promulgate regulations necessary to govern the use of diesel powered equipment in underground coal mines.

Purpose: The amended regulation is necessary to clarify the language. It is also necessary to improve the efficiency of the approval process. Tests conducted by the Mine Safety and Health Administration are done in a closed, laboratory environment and provide little assistance to the Chief of the Division of Mines in determining whether to approve equipment. By streamlining the process by which diesel equipment is approved and tested to be used in underground mines, the safety of coal miners and the public at large will be enhanced.

Rationale for Using Fast-Track Process: This rulemaking is expected to be noncontroversial as it does not represent a substantive change to the regulation. The amendments are to clarify language and enhance the existing process.

Substance: One sentence is stricken for the sake of clarity. The phrase "based on MSHA approval data" is deleted because that data is produced in a closed environment and does not accurately reflect the real world conditions underground where diesel equipment is used.

Issues: The primary advantages to this action are a clearly written regulation and a more efficient process by which diesel powered equipment is approved for use in underground mines in the Commonwealth. There are no disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Mines, Minerals and Energy proposes to delete the language requiring the use of the Mine Safety and Health Administrations engine approval data in establishing the baseline of diesel exhaust emissions in underground coal mines.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. These regulations establish emission testing and evaluation requirements for diesel engines used in underground coal mines.

The proposed changes will delete the current language requiring the use of the Mine Safety and Health Administrations engine approval data in establishing the baseline of diesel exhaust emissions in underground coal mines. This data is currently required to be used in combination with the average of the first four undiluted exhaust emission tests. With the proposed change, baseline emissions will be required to be based solely on the average of the first four undiluted exhaust emission tests. According to the Department of Mines, Minerals and Energy (DMME), the Mine Safety and Health Administrations data is not used in practice to establish baseline emissions because it is produced in a laboratory environment which does not accurately reflect the real world conditions underground where diesel equipment is used. Since deletion of this language will have no impact on the way baseline emissions are currently established, no significant economic impact is expected other than improving the clarity of the regulations and possibly streamlining the approval process by eliminating potentially confusing language.

Businesses and Entities Affected. These regulations apply to approximately 36 operators of 65 underground coal mines in Virginia.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth. However, according to DMME, coal mines are located exclusively in the counties of Buchanan, Tazewell, Wise, Lee, Dickenson, and Russell.

Projected Impact on Employment. No significant impact on employment is expected.

Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. No costs or other significant impact on small businesses are expected. The proposed changes do not impose any costs on regulated entities. Also, of the regulated 36 operators, DMME believes only a few, if any, are small businesses due to increased consolidation in the mining industry. Finally, other effects of the proposed changes are not expected to be significant.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations do not impose any adverse impacts on small businesses.

Real Estate Development Costs. No significant impact on real estate development costs is expected.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 107 (09). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendment removes the requirement that the Mine Safety and Health Administration engine approval data be used in establishing the baseline of diesel exhaust emissions in underground coal mines.

4VAC25-90-60. Emission testing and evaluation.

Undiluted exhaust emissions of diesel engines, to include each side of a dual exhaust system, on diesel-powered equipment used in underground coal mines shall be tested and evaluated weekly by an authorized person. The mine operator shall develop and implement effective written procedures for such testing and evaluation that shall include the following:

1. The method for which a repeatable load test is conducted that must include an engine RPM reading;

2. Sampling and analytical methods used to measure diesel engine emission concentrations;

3. Instrumentation and calibration of instrumentation capable of accurately detecting carbon monoxide in the expected concentrations;

4. The method of evaluation and interpretation of sampling results;

5. The concentration or changes in concentration of carbon monoxide that will indicate a change in engine performance and an action plan to address changes in performance. The operator will establish a baseline level of diesel exhaust emissions, subject to approval by the chief based upon the MSHA engine approval data and the average of the first four undiluted exhaust emission tests required by this section. This plan procedure will establish an action level not to exceed the lesser of two times the baseline or 2500 parts per million (ppm) of carbon monoxide. Should the action level be exceeded, the machine shall be removed from service and engine performance improved.

6. The maintenance of records necessary to track engine performance. These records shall be:

a. Recorded in a secure book that is not susceptible to alteration, or recorded electronically in a computer system that is secure and not susceptible to alteration; and

b. Retained at a surface location at the mine for at least one year and made available for inspection by interested persons.