Petition for Modification

In the matter of

Sidney Coal Company, Inc. for its subsidiaries: Clean Energy Mining Company

Mine No. 1

I.D. No. 15-10753

Freedom Energy Mining Company Mine No. 1

I.D. No. 15-07082

Pegs Branch Energy Mining Company Mine No. 1

I.D. No. 15-17541

Rockhouse Energy Mining Company Rockhouse Mine No. 1

I.D. No. 15-17651

Solid Energy Mining Company Mine No. 1

I.D. No. 15-07475

Docket No. M-2000-007-C

30 CFR 75.507

 

PROPOSED DECISION AND ORDER

 

On January 18, 2000, a petition was filed seeking a modification of the application of 30 CFR 75.507 to Petitioner's subsidiary mines located in Pike County, Kentucky. Petitioner, on February 18, 2000, requested the petition be amended to seek a modification of the application of 30 CFR 75.500(b). The Petitioner alleges that the proposed alternative method will at all times provide the same measure of protection as the standard.

 

The petitioner alleges the following: 1) use of nonpermissible Electronic Total Station Surveying Instruments would greatly enhance accuracy when making long distance surveys; 2) these instruments have a built-in measuring device that has a greater degree of accuracy than measurements taken with the conventional metal measuring chain; 3) survey projections made when mining is required near old works, bore holes, gas wells, property lines, coal seams above and below active mines, and other areas which require pin point accuracy is more likely achieved with these instruments; and 4) these electronic transits have digital readouts and, therefore, human error is reduced when turning angles and making engineering surveys.

 

The Petitioner's proposed alternative method consists of waiving the requirement for the use of permissible equipment and allowing the use of nonpermissible battery-powered electronic transits inby the last open crosscut or in return air. The surveyor carrying the electronic transits 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

 

The proposed alternative method will not provide the same measure of protection to miners as the standard. MSHA's investigation revealed that the manual methods of setting survey stations have been successfully used without significant change for over thirty years. One electronic transit manufacturer had requested its instrument to be evaluated for use in areas of underground coal mines where permissibility is required. This electronic transit was approved as permissible in 1979. However, that transit has not been manufactured in several years.

 

Several transit manufacturers were contacted and none of the manufacturers intend to submit data for possible permissibility approval. The manufacturer of the electronic transit proposed to be used in this petition, Nikon Model DTM-300, has included a WARNING AND CAUTION in its instructional manual that states, "The instrument does not feature explosion-protected construction. Do not use in coal mines, in areas contaminated with coal dust, or near other flammable substances." Other surveying equipment (transits) is available and can be used in areas where permissible equipment is required.

 

MSHA's investigation further revealed that methane liberation for the Sidney Coal Company subsidiary mines are as follows:

 

1. Freedom Energy Mine No. 1 - 972,156 cubic feet per day

 

2.  Solid Energy Mine No. 1 - 451,347 cubic feet per day

 

3.  Pegs Branch Energy Mine No. 1 - Zero cubic feet per day

 

4.  Rockhouse Energy Mine No. 1 - 305,130 cubic feet per day

 

5.  Clean Energy Mine No. 1 - 1,175,282 cubic feet per day

 

Although no methane had been recorded at the Pegs Branch Energy, Mine No. 1, this mine is still classified as a gassy mine. Inthis regard, the legislative history of the Coal Mine Health and Safety Act of 1969 (the 1969 Act) documents numerous mine explosions having occurred at mines working above the water table and rejected the concept of non-gassy coal mines. Moreover, Section 305(a)(l)(B) of the 1969 Act directed the Agency to promulgate regulations requiring the use of permissible electrical equipment in all coal mines.

 

Sidney Coal Company has failed to prove that the use of nonpermissible battery-powered electronic transits is not a possible ignition source for a methane or coal dust explosion. The 1969 and 1977 Mine Acts and 30 CFR 75.500(b) are designed to reduce mine fatalities and serious injuries by reducing the number of potential ignition sources in mines. The use of nonpermissible battery-powered electronic transits in an atmosphere containing an explosive level of methane could result in an ignition that could be catastrophic to all miners in the area where an explosion occurred. This view is consistent with a July 1, 1987 Administrative Law Judge decision denying a similar request to modify 30 CFR 75.500(b) by using nonpermissible battery-powered drills in Southern Ohio Coal Company V MSHA, Case No. 86-MSA-4. Therefore, the alternative use of nonpermissible battery­ powered electronic transits will not, at all times, guarantee no less than the same measure of protection afforded the miners as 30 CFR 75.500(b).

 

On the basis of the petition and the findings of MSHA's investigation, Sidney Coal Company is not granted a modification of the application of 30 CFR 75.500(b) 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 Sidney Coal Company's Petition for Modification of the application of 30 CFR 75.500(b) in the mine listed above is hereby:

 

DENIED.

 

Any party to this section 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