In the matter of
R. & D. Coal Company
Buck Mountain Slope Mine
I.D. No. 36-02053
Petition for Modification
Docket No. M-93-117-C
Date Issued: 11/26/1997
PROPOSED DECISION AND ORDER
On May 25, 1993, a petition was filed seeking a modification of the application of 30 CFR 75.364(b)(1),(4),and(5) to Petitioner's Buck Mountain Slope Mine, located in Lincoln, Schuylkill County, Pennsylvania. At that time Richard D. Kocher, Jr. was a co-owner of the mine. As a result of criminal proceedings relating to an explosion at the Buck Mountain Slope Mine, Mr. Kocher was ordered to terminate all present and future involvement with the coal mining industry. MSHA received a new legal identity report, dated January 13, 1995, which indicated that the Buck Mountain Coal Company’s Buck Mountain Slope Mine is now co-owned by David Himmelberger and Richard Boyer. Since that time MSHA has been dealing with Mr. Himmelberger with respect to safety and health matters at the Buck Mountain Slope Mine.
The Petitioner alleges that application of this standard will result in a diminution of safety to the miners and that the alternative method proposed in the petition will at all times guarantee no less than the same measure of protection afforded by the standard.
MSHA personnel conducted an investigation of the petition and filed a report of their findings and recommendations with the Administrator for Coal Mine Safety and Health. After a careful review of the entire record, including the petition and MSHA's investigative report and recommendation, this Proposed Decision and Order is issued.
Finding of Fact and Conclusion of Law
Application of 30 CFR 75.364(b)(1),(4)and(5) to the subject mine will not result in a diminution of safety to the miners. MSHA's investigative report findings do not support the Petitioner's allegations of diminution of safety and the proposed alternative method does not provide the same measure of protection as is provided by compliance with the standard.
The investigation determined that the petitioner is in compliance with the petitioned regulations. The intake air haulage slope and the return air course, which are also designated escapeways, are being examined in accordance with the pertinent regulations. Seals that are located along these air courses are also inspected during those required examinations.
On the basis of the petition and the findings of MSHA's investigation, R. & D. Coal Company is not granted a modification of the application of 30 CFR 75.364(b)(1),(4),and(5) to its Buck Mountain Slope Mine.
ORDER
Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Coal Mine Safety and Health, and pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C., sec. 811(c), it is ordered that R. & D. Coal Company's Petition for Modification of the application of 30 CFR 75.364(b)(1),(4),and(5) in the Buck Mountain Slope Mine is hereby:
DENIED.
Any party to this action desiring a hearing on this matter must file in accordance with 30 CFR 44.14, within 30 days. The request for hearing must be filed with the Administrator for Coal Mine Safety and Health, 4015 Wilson Boulevard, Arlington, Virginia 22203.
If a hearing is requested, the 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 proposed decision. A party other than Petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition, and 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, the Decision and Order will become final and must be posted by the operator on the mine bulletin board at the mine.
_________________________________
Robert A. Elam
Deputy Administrator
for Coal Mine Safety and Health
