In the matter of
Addington, Inc.
Pond Creek No. 1 Mine
I.D. No. 15-17287
| Petition for Modification
Docket No. M-97-075-C
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PROPOSED DECISION AND ORDER
On June 6, 1997, a petition was filed seeking a modification of the application of 30 CFR 75.1710-1(a) to Petitioner's Pond Creek No. 1 Mine, located in Pike County, Kentucky. On March 10, 1998, the petitioner filed an amended petition seeking modification of the same standard but revised item 12 and added new items 13, 14 and 15 to the statements in support of granting the petition.
The Petitioner alleges that application of this standard will result in a diminution of safety to the miners and requests that mobile face equipment be required to have substantially constructed cabs or canopies only when the mining height is greater than 46 inches rather than the 42 inches specified in 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
The investigation determined that the Pond Creek No. 1 Mine was opened into the Pond Creek coal bed in October of 1992, and that the minimum height ranges from 44 to 50 inches. In such heights, MSHA has consistently interpreted 30 CFR 75.1710-1(a) to require “new electric face equipment or used equipment new to the mine is required to have cabs or canopies if the bottom to top measurement is 42 inches or greater.” A full statement of MSHA’s position is presented in the Mine Safety and Health Administration’s Program Policy Manual, Volume V, Part 75, pages 137 through 140 (07/01/88 Release V-1). Furthermore, MSHA's position has been reflected even in those instances where petitions were sought and granted for pre-existing equipment being transferred to new mine sites or where mining heights had fallen below 42 inches. In the past, when MSHA has granted petitions for 75.1710-1(a), they have included the requirement that “ ...., future electric face equipment purchased for this mine must be provided with properly installed canopies or cabs prior to being used in the mine. If and when technology is available to provide canopies or cabs on the present equipment for which this decision grants a modification without resulting in a diminution of safety to the miners, then such equipment shall be provided with canopies or cabs and this modification will no longer be effective.” Therefore, application of 30 CFR 75.1710-1(a) to the subject mine will not result in a diminution of safety to the miners.
MSHA’s investigation found that: a) the floor to roof mining height at Pond Creek No. 1 Mine normally exceeded 42-inches; b) the face equipment was all low profile equipment, designed to be equipped with substantially constructed cabs and canopies meeting the requirements of 30 CFR 75.1710-1(d); but, c) the equipment was purchased without that optional cab and canopy equipment installed by the manufacturers. In addition, the mine’s accident history includes a number of unintentional roof falls with rock falling to above the roof bolt anchorage and injury accidents from falling roof materials ranging from minor injuries to near miss events which could easily have resulted in serious or fatal injuries. MSHA has concluded that appropriate cabs and canopies are required and need to be installed at the Pond Creek No. 1 Mine whenever mining equipment is operated in mining heights in excess of 42 inches.
Furthermore, a recent mandatory inspection at the mine found the active section coal seam height to range from 44 to 48 inches with the mining height, routinely including removal of roof draw rock, to be 50 to 52-inches. That inspection also established that appropriate cabs/canopies were then available at the mine, except for a roof bolter which had been transferred from another mine and for which the cab/canopy had not yet arrived. Citations were issued alleging a violation of 75.1710-1(a) for failure to install the required cabs and canopies.
The amended petition, received March 10, 1998, contained new allegations. MSHA conducted an additional investigation. That reinvestigation found that: a) all the petitioned mobile face equipment had installed substantial cabs or canopies; b) the mining height inby the dumping point ranged from 48 to 64 inches; c) an injury accident had occurred to a shuttle car operator August 16, 1997, which could have been prevented had the canopy then been installed; d) the mine employs a diesel powered forklift for the installation and removal of cabs and canopies should the mining height fall below 42 inches; and, e) the installation of cabs and canopies in accordance with the standard and the clarifying MSHA policy previously discussed does not result in a diminution of safety to miners.
On the basis of the petition and the findings of MSHA's investigation, Addington, Inc. is not granted a modification of the application of 30 CFR 75.1710-1(a) to its Pond Creek No. 1 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 Addington, Inc.’s Petition for Modification of the application of 30 CFR 75.1710-1(a) in the Pond Creek No.1 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
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