On September 12, 1994, a petition was filed by Brush Creek Mining and Development Co. seeking a modification of the application of 30 CFR §57.4431 to petitioner's Ruby Mine (I.D. No. 04-03108) located in Sierra County, California. The mine is an underground gold mine using conventional mining methods to recover the gold ore.

The petitioner alleged that the alternative method outlined in the petition, of allowing a diesel fuel storage tank to remain in its present location instead of a minimum of 100 feet from the mine portal, would provide at least the same measure of protection as would the mandatory standard.

Standard 57.4431 Surface storage restrictions, provides:

1. On the surface, no unburied flammable or combustible liquids or flammable gases shall be stored within 100 feet of the following:

1. Mine openings or structures attached to mine openings.
2. Fan installations for underground ventilation.
3. Hoist houses.

On June 9, 1995, MSHA investigators conducted an investigation relevant to the merits of the petition and filed a report of their findings with the Administrator for Metal and Nonmetal. After a careful review of the entire record, including the petition and investigative report, this Proposed Decision and Order is issued.

FINDING OF FACT AND CONCLUSION OF LAW

The alternative method proposed by the petitioner will not at all times guarantee no less than the same measure of protection afforded by 30 CFR §57.4431. These proposed safeguards do not reduce the potential for smoke entering the mine opening. For example, in the event of a fire, smoke would travel to the mine opening more readily from the proposed 82-foot distance. The standard's 100-foot distance requirement is a minimum for the storage of unburied flammable or combustible liquids or flammable gases near mine openings. Clearly the company is not providing equal or greater protection against the smoke hazard. Also, there is no diminution of safety in compliance.

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), it is ordered that modification of the application of 30 CFR §57.4431 to the Ruby Mine as it pertains to allowing the diesel fuel storage tank to remain in its present location which is less than 100 feet from the mine is hereby DENIED.

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

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 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 a request for a hearing is not filed within 30 days thereof, this Proposed Decision and Order will become final and must be posted by the operator on the bulletin board at the mine.

_________________________________ Claude N. Narramore Acting Administrator for   Metal and Nonmetal