PROPOSED DECISION AND ORDER
On October 20, 1995, a petition was filed seeking a modification of the application of 30 CFR 75.388(a)(3) to Petitioner's No. 1 Mine, located in Floyd County, Kentucky. The Petitioner alleges that application of the standard will result in a diminution of safety to miners and that the alternative method outlined 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 75.388(a)(3) to the subject mine will not result in a diminution of safety to miners and the alternative method proposed by the Petitioner will not at all times guarantee no less than the same measure of protection afforded the miners under the standard.
MSHA's investigation findings concluded: a) the inaccessible abandoned mine, adjacent to the petitioner's mine, produced water and the workings slope such that it is likely the mine impounds water, b) the abandoned mine's use of timber and having been permanently sealed assures the areas not flooded are likely to be filled with oxygen deficient air and possibly methane, c) the abandoned mine's portals have been back filled and permanently sealed and the area reclaimed, d) the surface survey stations and monuments of the abandoned mine are now under fill material on which part of the petitioner's surface facilities are constructed, e) both the petitioner's mine and the abandoned mine were surveyed using closed loop surveys and have appropriately certified mine maps, f) the petitioner's allegation that the mine surveys and mine map accurately show the location of the projected mine workings relative to the abandoned mine workings could
not be verified because of the failure to conduct a closed loop survey of both mine's surface monuments which were used in establishing the azimuths of lines extended underground, and g) the petitioner's allegation that drilling bore holes when approaching within 200 feet of the inaccessible abandoned mine would slow mining advance and thereby diminish the safety of miners was not verified. In conclusion, all available information indicates that the proposed alternative method of delaying the drilling of bore holes until approaching within 50 feet would provide substantially less protection than afforded by the standard.
On the basis of the petition and the findings of MSHA's investigation, Clintco Enterprises, Inc. is not granted a modification of the application of 30 CFR 75.388(a)(3) to its No. 1 Mine.
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 Clintco Enterprises, Inc.'s Petition for Modification of the application of 30 CFR 75.388(a)(3) in the No. 1 Mine is hereby:
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