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Petition - Docket No. M-2001-058-C

Inthe matter of Excel Mining, LLC Mine No. 3
I.D. No. 15-08079
Docket No. M-2001-058-C 30 CFR 75.360(b)(5)

PROPOSED DECISION AND ORDER

On May 16, 2001, Excel Mining, LLC, filed a petition seeking a modification of the application of 30 CFR 75.360(b)(5) to its Mine No. 3, located near Pilgrim, Kentucky. The petitioner alleges 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 personoel 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 recommendations, this Proposed Decision and Order is issued.

Finding of Fact and Conclusion of Law

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 30 CFR 75.360(b)(5).

30 CFR §75.360 essentially restates the requirements of §303(d)(l) of the Federal Mine Safety and Health Act (Mine Act), 30 U.S.C. §863(d)(l). Under section 75.360(a), a certified examiner must conduct a preshift examination within three hours before "the beginoing of any shift before anyone of the oncoming shift ... enters any underground area of the mine ..." Subsections (b) through (g) of §75.360 set forth the required elements of the examination. Subsection (b)(5) specifically requires that a preshift examination be performed at "seals along intake air courses where intake air passes by a seal to ventilate working sections where anyone is scheduled to work during the oncoming shift."

The preshift examination requirement "is a fundamental importance in assuring a safe working environment underground." Secretary of Labor v. Enlow Fork Mining Co., 19 FMSHRC 5,l 5(January 1997) citing Secretary  of Labor v. Buck Creek Coal Co.. 17 FMSHRC 8, 15 (January 1995). Congress explicitly acknowledged the importance of the preshift examination by making it a longstanding statutory mandate, dating back to the Federal Coal Mine Safety Act of 1952, 30 U.S.C. §471 et seq. (1955). Enlow fork Mining Co., supra at 15.
These provisions were strengthened in the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.303(d)(1) and (2) (1976), and carried over in identical fashion to the Mine act. The purpose of the required preshift examination is to "prevent loss of life and injury." See S. Rep. No. 411, 91st Cong.,!st Sess. 65 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess.., Part I Legislative History of the federal Coal Mine Health and Safety Act of 1969, at 183. This is achieved by the preshift through preventing hazardous conditions from developing.

The petition filed by Excel Mining, involves providing an Atmospheric Monitoring System (AMS) to constantly monitor seals in lieu of examining seals on a preshift basis. Currently the mine has seven sets of seals that are ventilated by a split of intake air that does not ventilate a working section. However, petitioner plans to convert this entry to an intake entry where air that has passed by the seals will be used to ventilate working sections.

Under the alternative method proposed by the petitioner, the air flow down-wind of each set of seals would be continuously monitored using an AMS. Weekly visual examinations of the individual mine seals would be conducted in lieu of the preshift examinations of the seals required by the standard. The petition is for the use of technology as a replacement for visual and "hands-on" examination during the required preshift examination of permanently constructed mine seals located along an intake air course used to provide a ventilating current to a mechanized mining unit.

The preshift examination is an accepted safety practice in industry and is a primary means of determining the effectiveness of the mine's ventilation system and of detecting developing hazards, such as methane or water accumulations, problems with the roof, face or ribs, and damage to seals. Generally, a preshift examination is necessary at seals along intake air courses when that air is used to ventilate working sections where miners are scheduled to work to ensure that the seal is intact and serving its intended purpose. Deteriorated seals could leak water or contaminated air and cause hazards to develop that could threaten the safety or health of miners in active working areas. An examination of these seals before a shift begins allows miners on the oncoming shift to be notified if hazards exist which could affect the integrity of the seals and allows corrective actions to be taken. Inaddition to methane accumulations and oxygen deficiency, other hazards that can be detected during the preshift are loose roof and ribs which could damage the seals and water accumulations that could affect the intake air course.

Continuous atmospheric monitoring systems can provide valuable information when supplementing the required examinations by certified mine examiners. However, since the mine normally operates 2 production shifts, 5 days per week, the petition would reduce the required examination for hazardous conditions and gas checks at each individual seal from 10 times per week (prior to the beginning of each shift on which miners work inby the seals) to one time every seven days.

MSHA investigators could not confirm that the proposed continuous atmospheric monitoring of the sets of seals down-wind could detect damaged or failing seals in the same way that a visual examination could. MSHA has determined that the continuous measurement of oxygen or methane at the sensor locations down-wind of a set of seals would provide a less satisfactory evaluation of the condition of any individual seal when compared to a visual examination and gas check at each seal as required by the standard. MSHA also concludes that the excessive dilution of gases being monitored and the potential bypassing of the sensor location by stratified out­ gassing or undetected changes in airflow patterns can render continuous atmospheric monitoring ineffective in evaluating the condition of ventilation controls such as mine seals. Continuous monitoring at each down-wind set of seals does not enhance the ability of the AMS to identify sources of the gas, or to take immediate action when a failed seal out-gasses. Infact, the early indicators of seal deterioration such as the formation of cracks, changes in water flow from drains, spalling of roof and ribs, roof convergence or floor heave, may not result in sufficient amounts of gases to be detected at an AMS located down-wind. However, such evidence would be readily apparent to a certified mine examiner during the preshift examination. The less frequent visual examination proposed by the petitioner will decrease the potential to detect and correct problems at a seal before a significant out-gassing could occur.

On the basis of the petition and the findings of MSHA's investigation, Excel Mining, LLC, is not granted a modification of the application of 30 CFR 75.360(b)(5) to its Mine No. 3.

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 lOl(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C., sec. 811(c), it is ordered that Excel Mining, LLC.'s Petition for Modification of the application of 30 CFR 75.360(b)(5) in the Mine No. 3 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, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939. I fa 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.

Allyn C. Davis Acting Deputy Administrator

for Coal Mine Safety and Health