Petition - Docket No. M-2020-006-C | Mine Safety and Health Administration (MSHA)

In the matter of: Petition for Modification

Nelson Brothers, LLC - I.D. 5DA

at Alex Energy, Inc.

Edwight Surface

Mine – I.D.: 46-08977 Docket No. M- 2020-006-C

Republic Energy LLC

(formerly Elk Run Coal Company) Republic Energy

Mine – I.D.: 46-09054

Workman Creek Surface, I.D.: 46-09475

Black Castle Mining Company, LLC

(formerly Elk Run Coal Company)

Black Castle Mining Company, LLC – I.D.: 46-07938

PROPOSED AMENDED DECISION AND ORDER

On April 10, 2020, Nelson Brothers LLC submitted a request to amend a modification granted under Docket No. M-2009-043-C, issued January 31, 2011, and finalized March 2, 2011. The petition was filed seeking to amend a modification of the application of 30 C.F.R. § 77.1302(k) to the following mines: (1) Alex Energy, LLC. - Edwight Surface Mine – I.D. 46-08977, located in Raleigh, West Virginia; (2) Lexington Coal Company, LLC (formerly Alex Energy, LLC.) - No 1 Surface – I.D. 46-06870, located in Nicholas, West Virginia, (3) Republic Energy LLC (formerly Elk Run Coal Co) - Republic Energy – I.D. 46-09054, located in Fayette, West Virginia, (4) Black Castle Mining Company, LLC (formerly Elk Run Coal Co) - Black Castle Mining Company, LLC mine –

I.D. 46-07938, located in Boone, West Virginia, (5) Lexington Coal Company, LLC (formerly Progress Coal) - Twilight Mtr Surface Mine – I.D. 46-08645, located in Boone, West Virginia.

Under the new amended Docket 2020-006, Nelson Brothers LLC has requested to modify the list of mines the Proposed Decision and Order applies to as follows:

Republic Energy LLC - Workman Creek Surface, I.D.: 46-09475, located in Raleigh County, West Virginia. Nelson Brothers LLC would like to add this mine to the PDO.

Lexington Coal Company, LLC (formerly Alex Energy, Inc.) - No 1 Surface, I.D.: 46-06870, has been in non-producing active status since 4/2/2013, and Nelson Brothers LLC would like to delete this mine from the Proposed Decision and Order.

Lexington Coal Company, LLC (formerly Progress Coal) - Twilight Mtr Surface Mine, I.D.: 46- 08645, Nelson Brothers LLC no longer services this mine and would like to delete this mine from the Proposed Decision and Order.

The Proposed Decision and Order applies to all other mines listed in the PDO.

The petitioned § 77.1302(k) states “Vehicles containing explosives or detonators shall not be taken to a repair garage or shop for any purpose”.

The Petitioner alleges that the alternative method proposed in the petition will at all times guarantee no less than the same measure of protection afforded by the standard and furthermore, compliance with the standard would result in a diminution of safety to the workers.

On June 15 through 19, 2020, MSHA personnel conducted an investigation of the petition and filed a report of their findings with the Administrator for Mine Safety and Health Enforcement. After a careful review of the entire record, including the petition and MSHA's investigative report, this Proposed Decision and Order is issued.

Finding of Fact and Conclusion of Law

Nelson Brothers, LLC is a blasting contractor working one (1) shift per day, six (6) days per week at the subject mines designated in the amendment request. There are eighteen (18) employees working for Nelson Brothers, LLC at the Workman Creek Surface mine. The Workman Creek Surface mine employs 240 miners working two production shifts per day, five days per week. The mine utilizes large earth moving equipment including excavators and end loaders in multiple seams. The miners at Workman Creek Surface mine are not represented by a labor union and there is no miners' representative. The petitioner wants to add this mine to the Proposed Decision and Order.

The Petitioner requests that it be permitted to perform routine repair and maintenance work on its bulk explosive trucks while they are loaded with ammonium nitrate/fuel oil (ANFO), a blasting agent, under the cover of shelters that the Petitioner constructs for such purpose. Petitioner contends the repair or maintenance work that would be conducted in the remote shelter would otherwise be conducted in the field and, as a result, no additional workers would be exposed to hazards.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Regulations define a blasting agent as “any material or mixture, consisting of fuel and oxidizer, that is intended for blasting and not otherwise defined as an explosive; if the finished product, as mixed for use or shipment, cannot be detonated by means of a number 8 test blasting cap when unconfined.”

Petitioner alleges that the shelters built would provide a smooth, dry, level foundation of concrete that would provide easier placement of jacks, cribbing or stands as opposed to working in environmental conditions such as rain, snow, freezing rain, mud, and ice. Jacks or cribbing sink into the ground resulting in reduction of workspace and unlevel, poorly supported equipment that is subject to falling. Petitioner is of the opinion that performing repair and maintenance work in shelters would reduce the slip and fall and sprain and strain injuries associated with this type of work.

MSHA visited the proposed area where a shelter is to be constructed and it is in a remote location away from general mining activity. The structure proposed is the same construction as the structures at the other mines listed in the Petition. The alternative method proposed by the Petitioner (as amended by MSHA) will at all times guarantee no less than the same measure of protection afforded the miners under 30 C.F.R. § 77.1302(k).

On the basis of the petition and the findings of MSHA's investigation, Nelson Brothers, LLC is granted a modification of the application of 30 C.F.R. § 77.1302(k) at Lexington Coal Company,

LLC’s Edwight Surface Mine; Republic Energy LLC’s Republic Energy Mine and Workman Creek Surface; Black Castle Mining Company, LLC’s Black Castle Mining Company, LLC mine. The modification granted under Docket No. M-2009-043-C will be superseded and replaced by this amended modification granted under Docket No. M-2020-006-C. When this Proposed Amended Decision and Order becomes final Docket M-2009-043-C will be revoked.

ORDER

Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Mine Safety and Health Enforcement, and pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(c), it is ordered that Nelson Brothers, LLC’s Petition for Modification of the application of 30 C.F.R. § 77.1302(k) to allow explosive trucks to enter shelters constructed for such purpose for repair or maintenance work at Lexington Coal Company, LLC’s Edwight Surface Mine; Republic Energy LLC’s Republic Energy Mine and Workman Creek Surface; Black

Castle Mining Company, LLC’s Black Castle Mining Company, LLC mine, is hereby:

GRANTED, conditioned upon compliance with the following terms and conditions:

1. All high explosives and detonators shall be removed from vehicles prior to entering the non-permanent shelters.

2. No hot work or open flames shall be permitted within 50 feet of a loaded vehicle.

3. No vehicle repairs shall be conducted during thunder/lightning storms.

4. Vehicles shall be emptied of all explosives and washed before entering the non-permanent shelter to conduct hot work (grinding), welding, or cutting with an open flame.

5. A flashing light shall be installed on top of the shelter and operating to warn anyone approaching that a loaded truck is in the shelter

6. A rope or gate with a warning sign shall be extended across entrances when loaded trucks are in shelters for repair or maintenance.

7. Except when unattended at night, bin doors on top of the trucks shall be opened.

8. The number of persons working in the shelter shall be limited to the minimum required to conduct repair work or perform maintenance.

9. All shelters shall be constructed in remote areas away from normal mining activities.

10. All persons employed by the Petitioner shall receive training on the procedures and work rules of this petition prior to the implementation of this modification and annually thereafter. All new employees hired shall receive this training when hired and prior to work.

11. This decision and order shall be posted at each non-permanent shelter and at each mine bulletin board.

Any party to this action desiring a hearing on this matter must file in accordance with 30 C.F.R. § 44.14, within 30 days. The request for hearing must be filed with the Administrator for Mine Safety and Health Enforcement, 201 12th Street South, Arlington, Virginia 22202-5452.

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 may 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.

/s/

Timothy R. Watkins

Administrator for

Mine Safety and Health Enforcement

Certificate of Service

I hereby certify that a copy of this proposed decision was served personally or mailed, postage prepaid, or provided by other electronic means this 20th day of July , 2020, to:

Mr. Travis Elswick

Safety Manager

Nelson Brothers LLC

P O Box 8276

South Charleston,

WV 25303

Telswick@nelbro.com

/s/

Michele Gussie Secretary

cc: Eugene White, Director, Office of Miners' Health Safety & Training, #7 Players Club Dr.

Suite 2, Charleston WV 25311 Eugene.E.White@wv.gov