PROPOSED AMENDED DECISION AND ORDER ON PETITION FOR MODIFICATION

BACKGROUND

On December 2, 1998, Kennecott Utah Copper Corporation (petitioner) filed an amended petition for modification of 30 CFR §56.9300(d)(3) with the Assistant Secretary of Labor for Mine Safety and Health (MSHA).

Standard 30 CFR §56.9300(d)(3), Berms or guardrails, provides:

(d) Where elevated roadways are infrequently traveled and used only by service or maintenance vehicles, berms or guardrails are not required when all the following are met:


(3) Delineators are installed along the perimeter of the elevated roadway so that, for both directions of travel, the reflective surfaces of at least three delineators along each elevated shoulder are always visible to the driver and spaced at intervals sufficient to indicate the edges and attitude of the roadway.

The petitioner had previously been granted a modification of 30 CFR §56.9022 by the Administrator for Metal and Nonmetal Mine Safety and Health (Administrator) on May 25, 1988. That standard was subsequently revised and redesignated as 30 CFR §56.9300. In addition, on April 15, 1995, the Administrator issued a Proposed Decision and Order (PDO) granting the Petitioner an amended Petition for Modification subject to five additional terms and conditions. Petitioner is now seeking to further amend its granted Petition for Modification of 30 CFR §56.9300(d), by requesting a revision of one of the conditions stated in the 1995 granted modification. That condition provides:

5. A pipeline shall be located on the inside edge (e.g., driver's side) of the impoundment roadway, when there is a drop off sufficient for equipment to overturn, to serve as a guide for equipment operators.

Petitioner now proposes to install delineators along the perimeter of those areas of the elevated roadway where no pipeline was laid and there was a drop-off sufficient for equipment to overturn. At least three delineators along each elevated shoulder would be always visible to the drivers of vehicles.

MSHA investigators conducted an investigation relevant to the merits of the amended petition request and filed a report of their findings and recommendations with the Administrator. After a careful review of the entire record, including the petition and MSHA's investigative report and recommendations, this Proposed Amended Decision and Order is being issued by the Administrator which incorporates the changes requested by the petitioner to the July 25, 1995, Amended Decision and Order.

FINDING OF FACT AND CONCLUSION OF LAW

The petitioner's alternative method, of compliance set forth in this Proposed Amended Decision and Order will at all times guarantee no less than the same measure of protection afforded the miners under 30 CFR 56.9300(d)(1) and (3). Compliance with this Proposed Amended Decision and Order entitles Kennecott Utah Copper to a modification of the application of 30 CFR 56.9300(d)(1) and (3) to its Kennecott Utah Copper Concentrator - North.

ORDER

Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Metal and Nonmetal and pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C., Section 811(c), the amended modification of 30 CFR 56.9300(d)(1) and (3) to the Kennecott Utah Copper Concentrator - North, as it pertains to the utilization of an elevated impoundment roadway at the Magna Tailings Pond, without berms or guards, is hereby:

GRANTED, conditioned on compliance with the following:

1. The entire tailings impoundment shall be surrounded by a security chain link fence, natural terrain boundaries (e.g., wetlands), or a canal waterway which shall isolate the impoundment from unauthorized vehicular entry.

2. The main authorized access roadway to the tailings impoundment area shall require entry through a 24-hour a day, attended gate. Other alternative gates to the impoundment area shall be locked and only authorized personnel shall have keys. The other vehicular access to the area shall be the fully bermed outer roadway. This access shall also require entry through the 24-hour a day, attended gate.

3. Each access point from the outer roadway area to the impoundment roadway shall have posted warnings that the impoundment roadway is not bermed and that caution must be used. The impoundment roadway shall not be used as a thoroughfare and traffic shall be limited to a one-way direction

4. The impoundment roadway speed shall be not more than 15 miles per hour, depending on weather, road, and visibility conditions. Speed limit signs shall be posted at appropriate entrance locations to the impoundment roadway.

5. A pipeline shall be located on the inside edge (e.g., driver's side) of the impoundment roadway, when there is a drop off sufficient for equipment to overturn, to serve as a guide for equipment operators. In areas where pipelines are not provided, at least three reflective delineators will be installed as required in the standard.

6. Reflective delineators shall be installed at no more than 500-foot intervals along the impoundment roadway and shall be visible, under normal weather conditions, from equipment using the roadway.

7. (a) Employees operating equipment on the roadway shall receive and successfully complete training consisting of applicable task training, the video submitted with the MSHA investigative report of November 1994 (or an updated copy), a supervised tour of the impoundment roadway, and a written examination. (b) Other personnel deemed essential by the petitioner, after receiving the training noted above, are also authorized to operate equipment on the impoundment roadway and/or tailings area. Personnel deemed essential by the petitioner to operate equipment in the area who have not received the training noted above shall be accompanied by a person who has received the specified training. (c) Training shall be valid for four years from the date of completion. At petitioner's discretion, the roadway tour noted in condition 7(a) is not required for retraining.

8. Records of the training conducted in condition 7(a) shall be maintained for four years and made available to MSHA and appropriate miner's representative(s) upon request.

9. Future modifications to training deemed appropriate by the petitioner shall be submitted to the Rocky Mountain District Manager, at least 60 days prior to implementation, for review and approval.

Any party to this action desiring a hearing must file a request for hearing within 30 days after service of the Proposed Decision and Order, in accordance with 30 CFR §44.14, with the Administrator for Metal and Nonmetal Mine Safety and Health, 4015 Wilson Boulevard, Arlington, Virginia 22203.

The hearing request shall contain a concise summary of position on the issues of fact or law desired to be raised by the party requesting the hearing, including specific objections to the Amended Proposed Decision and Order. A party other than the petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition. Any party to this action requesting a hearing may indicate a desired hearing site. If no request for a hearing is filed within 30 days after service thereof, this Amended Proposed Decision and Order will become final and must be posted by the operator on the mine bulletin board at the mine.

_________________________________ Earnest C. Teaster, Jr. Administrator for   Metal and Nonmetal Mine Safety and Health