In the matter of Petition for Modification
Nowacki Coal Company
Nowacki Slope Mine
I.D. No. 36-07592 Docket No. M-2003-045-C
PROPOSED DECISIONAND ORDER
On June 9, 2003, a petition was filed seekinga modification of the application of 30 CFR 75.364(b)(1), (4) and (5) to Petitioner's Nowacki Slope Mine,located in Brockton, Schuylkill County, Pennsylvania. On August 25, 2003, the petitioner filed anamendment to the proposed alternative method. The Petitioner alleges that application of this standard will result in a diminution of safety to the miners and that the alternative method proposed in the petitionwill at all times guaranteeno less than the same measureof protection affordedby the standard.
Specifically, the Petitioner alleges that the intake air course and seals along the air course as well as the primaryescapeway have become too hazardous to examine every seven days as the standard requires due to the slope pitch and wet conditions. The wet conditions present a significant fall hazard when either daily or weekly examinations are conducted at every ventilation control or opening alongthe steeply pitchedintake haulage slope and escapeway.
MSHA personnel conductedan investigation of the petitionand filed a report of their findings and recommendations with the Administrator for Coal Mine Safetyand Health. After a careful review of the entire record,including the petitionand MSHA's investigative report and recommendation, this Proposed Decision and Order is issued.
Finding of Fact and Conclusion of Law
A weekly examination for hazardous conditions at various locations in underground coal mines is required under 30 CFR 75.364(b). Under the petition, NowackiCoal Company seeks to modify those parts of the standard that require an examination: in at least one entry of each intake air course [(b)(1)];at each seal alongreturn and bleederair courses and at each seal along intake air courses not examined under 30 CFR 75.360(b)(5) during the preshift examination [(b)(4)];and in each escapeway [(b)(5)].
An investigation into the meritsof the petition revealed that theintake air course currently is being examinedduring the mine’s preshiftexamination, which occursat least once each day atthe Nowacki Coal Company Slope Mine. The Administrator has concluded that this satisfiesthe weekly examination requirement of 30 CFR 75.364(b)(1). Moreover, since the intake air course has also been designated as the primaryescapeway, the requirement in 30 CFR 75.364(b)(5) for a weeklyexamination of the primaryescapeway is also fulfilled by the preshift examination of the intakeair course. Further, the investigation determined that the operator, when conducting its weekly examination of the return air course in compliance with 30 CFR 75.364(b)(2), is also satisfying the requirement in subsection (b)(5) to examine the escapeways, since the return air courseis designated as the alternate escapeway for the mine.
For these reasons, NowackiCoal Company’s application for modification of 30CFR 75.364(b)(1) and (b)(5) is dismissed as unnecessary since the company is, in fact, complyingwith these provisions at the Nowacki Coal Company Slope Mine.
With regard to petitioner’s requestto modify the application of 30 CFR 75.364(b)(4), the investigation revealedthe following. On June 9, 2003, the petitioner filed a modification of 30 CFR 75.360(b)(5) for preshift examination of seals by Docket No. M- 2003-044-C. That modification pending approval will permit the certified person to conducta visual examination of the seals along the intake air course from the slowlymoving gunboat located in the steep intake air slope rather than requiring the examiner to exit the gunboatand travel to each seal to determine if the seals are intact. The basis for granting the modification is that the wet and slippery conditions in this anthracite mine create a severefalling hazard for mine examiners who need to climbfrom the gunboatover the slope to the area where the seals are located to physically examine them. Moreover, the modification also requires that an examination of the intake seals be conducted every seven days, at which time the gunboat must be stopped at each seal to make the visual examination from the gunboat. If the condition of a seal cannot be determined visually from the gunboat, then the operatormust make other arrangements, such as moving the seal closer to the intake slope, so the seal can be examined from the stoppedgunboat to ensureit is intact. Only in those rare cases where other arrangements do not ensure that a visualexamination can be made from the gunboat would the examiner have to leave the gunboatand physically examine the seal to see that it is intact. Since under 30 CFR 75.364(b)(4) sealslocated along the intake air course whichare examined during the preshift examination are not requiredto be examined again during the weekly examination, a modification of thatportion of 30 CFR 75.364(b)(4) which applies to examination of seals along the intakeis not needed because theseseals are already being examined under the modifiedpreshift examination requirements of 30 CFR 75.360(b)(5).
As for that portion of 30 CFR 75.364(b)(4) requiring a weekly examination of the seals located along the return air course,the investigation determined that in this steeply pitchinganthracite mine the return air course (also the alternate escapeway) is located in a steep slope which must be traveled by a series of ladders on the sides of the slope to enter or exit the mine. Further, the vast majorityof the return air seals are located such a short distancefrom the laddersin the slope that a visualexamination of the seals from the laddercan determine whether or not the seals are functioning as intended. Anthracite mines are usuallywet throughout the year, exposingminers to continual slippingand falling hazards. These wet conditions worsen when freezing temperatures cause ice to form on ladders near the top of the slopes, shafts,and approaches to seals which make hand and foot holds unsureand increase the danger of falling to miners. Under such adverseconditions, mine examiners who must dismount the installed laddersand physically travelto the return seals are at risk of falling and could be fatally or severely injured. As a result,MSHA has determined that a visual examination of the returnair slope seals from the ladder to ensure that they are intact shouldbe permitted in this case. An actual physical examination of these sealsmust be conducted only in the unlikelycase that it is not possible to determine if the seal is intact from the ladder even after all other possible arrangements have been made. This approach significantly minimizesthe risk of falling to the examiner,while still protecting miners from the risksof having mine gases from worked out areas enter the active workings shoulda seal failure occur.
Therefore, application of that portionof 30 CFR 75.364(b)(4) that requiresweekly physical examination of the returnair seals will resultin a diminution of safetyto the miners. The special terms and conditions set out below will provide a safe work environment to the miners.
ORDER
Wherefore, pursuant to the authoritydelegated by the Secretary of Labor to the Administrator for Coal Mine Safety and Health, and pursuant to Section 101(c)of the Federal Mine Safetyand Health Act of 1977, 30 U.S.C., sec. 811(c), it is orderedthat Nowacki Coal Company'sPetition for Modification of the application of 30 CFR 75.364(b)(1), (4) and (5) in the Middle Split Vein Slope Mine is hereby:
DISMISSED, for 30 CFR 75.364(b)(1) regarding weekly examination of the intakeair course; for 30 CFR 75.364(b)(4) regarding weekly examination of seals locatedalong the intake air haulage course; and for 30 CFR 75.364(b)(5) regarding weekly travel of each escapewayin its entirety.
GRANTED, for 30 CFR 75.364(b)(4), to conduct examinations of the seals locatedalong the returnand bleeder air coursesfrom the ladderon a weekly basis, not monthly as proposed by petitioner, conditioned upon compliance with the following termsand conditions:
1. A certified persondesignated by the operator shall, during the weekly examination, take air readingsat the bottom and top of the returnair slope to determine:
(a) the quality of air enteringthe bottom of the return air slope and exitingthe return air slope by testing for methane and oxygen deficiency; and
(b) if the air is movingin the proper direction.
The results of each weeklyexamination shall be compared to the previous weekly examination, and any changesin the direction of flow of the air currents shallbe reported to the mine foremanfor immediate investigation. The results of this weekly examination shall be recorded in the weeklyrecord required under 30 CFR 75.364(h).
2. The certified personshall make a visual examination of every seal on each side of the return air slope from the ladder to determine if the seals are intact and serving their intended purpose. If a seal cannot be visually examined from the ladder, arrangements shall be made, such as moving the seal closerto the return, to ensure anexamination of the seal can be conducted. Any indication of seal deterioration shall require an immediate physical examination followedby corrective actions. The certified person, while climbing the ladder, shall also make a visualexamination of the return air slope for hazardous conditions. All such conditions shall be corrected or posted with conspicuous dangersigns and recorded in the weeklyrecord required under 30 CFR 75.364(h).
3. Seals not examinedfrom ladders and located alongreturn and bleeder air courses are not coveredunder this modification and shall be inspected at least everyseven days in accordance with 30 CFR 75.364(b)(4).
4. Within 60 days after this Proposed Decisionand Order becomes final,the Petitioner shall submit proposed revisions for its approved30 CFR Part 48 trainingplan to the Coal Mine Safety and Health District Manager. The proposed revisions shallinclude initial and re fresher training regardingcompliance with the Proposed Decision and Order.
Any party to this actiondesiring a hearingon this mattermust file in accordance with 30 CFR 44.14, within30 days. The request for hearing must be filed with the Administrator for Coal Mine Safety and Health, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939.
If a hearingis requested, the request shall contain a concise summary of position on the issues of fact or law desiredto be raised by the party requesting the hearing, includingspecific objections to the proposed decision. A party other than Petitioner who has requesteda hearing shall also commentupon all issues of fact or law presentedin the petition, and any party to thisaction requesting a hearing may indicate a desired hearing site. If no request for a hearingis 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.
John F. Langton
Deputy Administrator
for Coal Mine Safetyand Health