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In the matter of                                                                
D. R. Price Engineering and
Land Surveying, Inc., PC
Contractor I.D. No. NAW 		Petition for Modification


Docket No. M-96-003-C


Date Issued: 04/12/1997

PROPOSED DECISION AND ORDER

Provider of contract engineering services for mine surveying at the following 28 mines:

Dominion Coal Corporation:

Chad Coal Corporation: Mackie J. Coal Company, Incorporation: Classic Coal Corporation: Dominion Coal Corporation: Red Baron, Incorporation: Dominion Coal Corporation: Red Baron, Incorporation: East Star Mining, Incorporation: Dominion Coal Corporation: C, J & L Mining, Incorporation: Sea "B" Mining Company: C & O Mining Company, Incorporation: Lick Branch Mining Incorporation: Liberty Resources, Incorporation: Solus Coal, Incorporation: Canada Coal Corporation: Middle Creek Energy, Incorporation: Magic Nuggett Coal Company, Incorporation:
PROPOSED DECISION AND ORDER

On January 17, 1996, a petition was filed seeking a modification of the application of 30 CFR 75.501-2(a)(2) to Petitioner's contract mine surveying services provided at the mines listed above, located in Buchanan and Tazewell Counties, Virginia and McDowell County, West Virginia.

The Petitioner alleges that application of this standard will result in a diminution of safety to the miners and that the proposed alternative method will at all times provide the same measure of protection as the standard.

As alleged by petitioner, use of a star drill and hammer to manually drill station plug holes in the roof results in an increased exposure of mine surveyors to (1) the risk of roof falls due to beating on the roof, (2) the risk of injury by mobile machinery, and (3) to risk of accidents occurring in the face area.

The Petitioner's proposed alternative method consists of waiving the requirement for using permissible hand-held drills and allowing the use of non-permissible battery-powered hand-held drills inby the last open crosscut. The surveyor carrying the drill would make appropriate and timely methane gas checks.

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 75.501-2(a)(2) to the subject mines will not result in a diminution of safety to the miners and the proposed alternative method will not provide the same measure of protection to miners as the standard.

MSHA's investigation revealed that no reported accidents had occurred in the last five years involving injuries to surveyors while drilling station plug holes using the manual hammer and drill method or hand-power twist drill units or manual breast augers or involving mobile face equipment or any other cause will doing work in face areas. The investigation acknowledged that while the battery-powered hand-held drills can drill a survey plug hole much more quickly than manual methods, any reduced risk due to the time saved is minimal. Moreover, any risk from roof fall is more appropriately accomplished by better roof fall hazard and roof condition awareness training for surveying personnel. In addition, risk of injury from mobile equipment could be reduced by surveys wearing reflective markers or reflective materials on their clothing.

The investigation also found that the manual methods of setting survey stations and drilling plug holes have been successfully used without significant change for over thirty years. Wearing appropriate personal protective safety equipment, such as gloves and goggles, and replacing worn equipment, redressing mushroomed heads on star drills, allows the use of hammers and hand-held star drills with no diminution of safety to miners under the standard as applied.

In support of granting the petition it was asserted that all of the listed mines are "above drainage " and, therefore, have very little to no history of methane. However, methane has been detected in some of the listed mines. Three of the mines have documented methane liberation from 50,000 to 129,000 cubic feet per day and one mine has reported two face ignition accidents.

In this regard, the legislative history of the Coal Mine Safety and Health Act of 1969 documents numerous mine explosions having occurred at mines working above the water table and rejected the concept of non-gassy coal mines. The Act further directed the Agency to promulgate regulations requiring the use of permissible electrical mining equipment in all coal mines.

Finally, Petitioner alleged that the use of a battery powered non-permissible hand-held drill is not nearly as hazardous as the cutting and welding allowed inby the last open crosscut by MSHA regulations. While MSHA permits, under 30 CFR 75.1729, cutting and welding inby the last open crosscut when certain requirements are met, that standard simply recognizes that most face equipment is so large as to make repairs involving cutting and welding necessary at the location of breakdown.

On the basis of the petition and the findings of MSHA's investigation, D. R. Price Engineering and Land Surveying, Inc. is not granted a modification of the application of 30 CFR 75.501-2(a)(2) in the mines listed above.

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 D. R. Price Engineering and Land Surveying, Inc.'s Petition for Modification of the application of 30 CFR 75.501-2(a)(2) in the mine listed above 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