Petition - Docket No. M-1999-102-C

In the matter of
Nehemiah Coal Company, Inc.
Mine No. 1
I.D. No. 44-06871
Docket No. M-1999-102-C
30 CFR 75.1710


On September 21, 1999, a petition was filed seeking a modification of the application of 30 CFR 75.1710 to Nehemiah Coal Company's Mine No. 1, located in Wise County, Virginia. Petitioner requests permission to remove canopies from its Eimco 48C shuttle cars, an Eimco 550 scoop, an Eimco 5810 coal hauler and an Eimco 3510 roof bolting machine, asserting that the canopies impair equipment operators' vision and create more of a safety hazard than working without canopies. This petition is being treated as requesting a modification of 30 CFR 75.1710-1(a) since it is this provision which specifically mandates cabs or canopies on self-propelled face equipment in certain mining heights.

In October and November 1999, MSHA personnel conducted investigations of the petition at the Mine No. 1. On February 8, 2000, MSHA investigators, including engineers from the MSHA Technical Support branch, visited the mine to further investigate the equipment identified in the petition. In addition, more mining height measurements were made and the mining and bolting process was closely observed. MSHA personnel filed reports 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 reports and recommendations, this Proposed Decision and Order is issued.


Finding of Fact and Conclusion of Law

The Petitioner alleges that application of 75.1710-1(a) will result in a diminution of safety to the miners. It asserts that in a mining height of 47-inches, with shuttle car frame heights of 38 ½-inches (shuttle cars being the highest of the petitioned equipment) and overall canopy height of 44-inches, the resulting 4 inches of visibility impairs the equipment operator's ability to view all areas of the shuttle car and compromises the safety of surrounding miners. In addition, the Petitioner alleges that because of the fire clay floor, the accumulation of water results in troughing, rutting and dipping mine floors which cause the canopies on the face equipment to dislodge and shear off permanent roof supports.

One of the problems that greatly concerned Congress at the time the 1969 Coal Mine Health and Safety Act (1969 Act) was passed was the high fatality and injury rates due to roof falls. To combat this roof fall problem, Congress devised a two-pronged plan. One remedial course of action was aimed at reducing the number of falls by requiring operators to adopt various roof control practices, including comprehensive roof control plans. The second important remedial provision authorized the Secretary to protect miners from those falls that did occur by requiring the installation of cabs or canopies on face equipment. In the express words of section 317(j) of the 1969 Act, the devices were installed "to protect the miners operating such equipment from roof falls and from rib and face rolls." To implement section 317(j), 30 CFR 75.1710-1(a) was promulgated in 1972. It requires all self-propelled diesel-powered and electric face equipment to be equipped with substantially constructed cabs or canopies in mining heights 42 inches or above.

MSHA has consistently interpreted 30 CFR 75.1710-1(a) to mean "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).

The petitioner's No. 1 Mine is mining the Morris Coal Seam. MSHA's investigations consistently found that the Morris Coal Seam thickness rapidly fluctuates between 30 and 53 inches with additional clearance routinely mined from the roof. The resulting mining heights range from 40 to 68 inches with the mine generally maintaining the mining height greater than the 47 inches stated in the petition.

The Morris Seam is relatively shallow with ground water entering through roof cracks following snow melts and rains, especially in the spring. Water accumulation and floor deterioration occur at these natural breaches for ground water, resulting in adverse travel conditions for all rubber tire and rail haulage equipment.

The Nehemiah Coal Company's owner, Jeffrey Newbury, has operated coal mines on the Morris Seam for approximately ten years. The electric face equipment, now in use at Mine No. 1, was transferred from Mullins Coal Company's Mine No. 3, also owned and operated by Mr. Newbury. It was used with the required cabs or canopies at the Mine No. 3 where the mining height was 66 inches. However, in August 1997, the petitioned equipment was transferred as used equipment new to Mine No. 1. The mine operator knew, based upon the roof control plan he submitted on August 14, 1997, that the coal seam would be significantly thinner and, therefore, the mining height would be less at Mine No. 1 than at the Mine No. 3 where it was previously used.

The equipment was used at Mine No. 1 with the required canopies when the mining height was maintained near 50 inches. However, in September 1999, the coal seam thickness dropped below 40 inches and the mining height was reduced to as little as 42 inches. At that time, the Eimco end-driven shuttle cars and other equipment began impacting the tensioned point anchor roof bolts then in use. Those bolts extended as much as 3 inches lower

than the mine roof. That point anchor bolt system was subsequently replaced by the use of fully grouted bolts which do not extend as far and thus provide more clearance between the roof and the tops of equipment. Even

with the change to fully grouted bolts which protrude less from the roof, the canopies on the equipment still occasionally struck the roof bolts.

Roof conditions present problems at Nehemiah's Mine No. 1. The mine routinely removes poor quality immediate roof and draw rock, during advance mining. This material is removed both to achieve sufficient machine clearance for travel and because the material deteriorates and falls out between roof bolts. Even where the immediate roof is removed, the shale roof develops loose material between roof bolts and along the rib lines which can severely injure machine operators. In addition, the mine has numerous areas where the roof has fallen above the roof bolts anchorage zone. Since March 8, 1999, seven roof fall accidents have occurred, resulting in injury to one miner. Five of these seven roof falls were massive in size, measuring from 15 feet wide by 20 feet long by 6 feet thick to 25 feet wide to 70 feet long to 14 feet thick. They occurred in intersections and other areas of the mine where miners frequently travel and work, thus presenting a significant risk of injury.

MSHA's Technical Support Branch conducted in-mine examinations of the mining conditions, as well as the mine's electric face equipment at the Mine No. 1. The Technical Support Branch also contacted the equipment manufacturer on the equipment's purchase history and the feasibility of the operation of the equipment with canopies in the mining conditions found in the Mine No. 1.

Based on all the information obtained during its investigations, MSHA makes the following determinations regarding each type of petitioned equipment. With regard to the Eimco 550 scoop, MSHA's investigation confirms that the scoop routinely travels the mine's return air courses and other outby areas where geologic pressures have resulted in entry closure to less than 42 inches. Therefore, the scoop is not required to have a cab or canopy under MSHA policy when the equipment is used in outby areas that frequently have mining heights lower than 42 inches. Since such equipment is being used in mining heights below 42 inches, MSHA finds the requested modification is not needed for the scoop used to maintain the outby areas of the mine and has dismissed without prejudice this part of the petitioner's request. Should additional scoops be acquired for use in the face areas, they would need certified cabs or canopies, appropriately sized for safe operation in mining heights greater than 42 inches, to be installed on the scoops.

With respect to the Eimco 48C shuttle cars and the Eimco 5810 coal hauler, MSHA concludes that these vehicles cannot be operated safely with cabs or canopies in the mining heights below 47 inches which currently exist at the mine. However, this is because the petitioner inappropriately chose equipment too large for the mining heights known to exist at the Mine No. 1 when other equipment was available which could be operated safely. The Eimco 48C shuttle cars and the 5810 coal hauler were transferred to Mine No. 1 from Mullins Mine No. 3 where mining heights of 66 inches were much higher than those at Mine No. 1. As MSHA's Technical Support report clearly states, other smaller equipment compatible with the mining heights at Mine No. 1, was, and is now available for use which can provide the protection from roof falls intended by the Congress when it enacted section 317(j) of the 1969 Act. Both Joy 21 SC shuttle cars and a lower frame version of the Eimco 5810 coal hauler are capable of operating safely in the mining heights found at Nehemiah's Mine No. 1.

Regarding the Eimco 3510 roof bolting machine, MSHA finds that it can be safely operated with canopies in mining heights as low as the 47 inches requested by the petitioner. However, as noted in the Technical Support report, a minor change to the canopy design would allow the safe operation of a canopy-equipped 3510 roof bolting machine in mining heights as low as 42 inches. Moreover, the Technical Support report indicates that, if the referenced hydraulic canopy configuration cannot be implemented on the Eimco 3510 roof bolter, other equipment exists that has this feature. One such roof bolter is the Fletcher RR-II model that can operate with canopies in place in mining heights as low as 42 inches.

Further, both the Eimco 48C shuttle cars and 3510 roof bolter are end-driven machines, where the operating compartments are located outside of the rubber tire's wheel base. With this location, the operator compartment experiences the maximum vertical movement when the vehicle traverses ruts or deteriorated road ways such as exist at the Mine No. 1. When using end-driven vehicles in these adverse travel conditions, there is a greater likelihood of either the machine frame or a cab or canopy striking the roof whenever rough road ways are traveled and minimized mining height is practiced. Center-driven equipment, on the other hand, experiences less vertical movement when traveling adverse roadways and is available for use in mining heights such as those found in the Mine No. 1.

In summary, MSHA concludes that because Mine No. 1 has less than ideal roof conditions which pose a significant risk of injury to miners, it is essential that the electric face equipment used in the mine contain cabs or canopies designed to provide miners with roof fall and rib and face roll protection. While it is true that the petitioned equipment has at times struck the mine roof and dislodged roof bolts, MSHA concludes that this problem is the result of the mine operator's own decision to use high profile, end-driven electric face equipment in the low mining heights and adverse roof and floor conditions at the Mine No. 1 when other equipment more appropriate to the mining conditions was available. Both the equipment selection and the mining height are factors within the control of the mine operator, and, in this case, the equipment chosen is clearly too large for the mining conditions existing at the Mine No. 1. Therefore, application of 30 CFR 75.1710-1(a) will not result in a diminution of safety to the miners.

On the basis of the petition and the findings of MSHA's investigations, including the Technical Support report, Nehemiah Coal Company, Inc. is not granted a modification of the application of 30 CFR 75.1710-1(a) to its Mine No. 1.


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 Nehemiah Coal Company, Inc.'s Petition for Modification of the application of 30 CFR 75.1710-1(a) in the Mine No. 1 is hereby:

DISMISSED, without prejudice, for the Eimco 550 Scoop, Serial No. 70550198,

which is routinely used to travel return aircourses and outby areas where the mining height and/or closure of roof to floor clearances is less than 42-inches.

DENIED for the following equipment:

a) Eimco 3510 Roof Bolter, Serial No. 70770168;

b) Eimco 48C-61-40 Shuttle Cars, Serial Nos. 7044056 and 7044057; and,

c) Eimco 5810 Coal Hauler, Serial No. 70220026.

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.


Michael J. Lawless
Deputy Administrator for Coal Mine Safety and Health