2/10/25
In the matter of Petition for Modification
Nyrstar Tennessee Mines – Gordonsville, LLC
Middle Tennessee Mine
I.D. No. 40-00864 Docket No. M-2022-012-M
PROPOSED DECISION AND ORDER
On October 3, 2022, Nyrstar Tennessee Mines - Gordonsville, LLC, Mine I.D. No. 40- 00864, filed a petition seeking modification of the application of 30 C.F.R. § 57.11052(d) at its Middle Tennessee Mine in Smith County, Tennessee, where it extracts zinc. Specifically, Petitioner requests a modification to allow the use of refuge chambers designed to sustain 8 miners for up to 48 hours, using breathable air provided via compressed oxygen or compressed air cylinders physically contained within each refuge chamber as an alternative to providing compressed air lines from the surface directly to the refuge areas as required by the standard. The refuge areas at the mine that are the subject of this petition are all physical refuge chambers. Petitioner alleges that the proposed alternative method in the petition will, at all times, guarantee no less than the same measure of protection afforded to the miners by the standard. Petitioner also alleges that installing air lines from the surface each time the refuge chamber is relocated would result in a diminution of safety to the miners.
30 Code of Federal Regulations (C.F.R.) § 57.11052(d) states, in relevant part:
Refuge areas shall be –
(d) provided with compressed air lines, waterlines, suitable handtools, and stopping materials.
Mine Safety and Health Administration (MSHA) investigators conducted an investigation into the merits of the petition and filed a written 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, the Administrator for Mine Safety and Health Enforcement issues this Proposed Decision and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On February 3, 2022, MSHA issued Citation Nos. 9282967, 9282968, 9282969, 9282970, and 9282971, to the Middle Tennessee Mine for violations of 30 C.F.R. § 57.11052(d). All five citations alleged the same violation for each of the five refuge chambers in question, i.e., that the refuge chambers were supplied with compressed air lines not suitable for their intended purpose. Instead of providing breathable air from the surface via compressed air lines, the air was supplied by an Ingersoll-Rand 80-gallon electric compressor located underground in the adjacent entry outside the refuge chambers themselves.
The electric compressors draw air from the mine atmosphere and may supply the refuge chambers with contaminated air during an emergency. In each case, the air was routed into the refuge chamber through a regulator and a series of filters which remove water, oil, and organic materials, but which provide no protection from carbon monoxide or other potentially harmful gases. None of the compressed air lines delivering air from the electric compressors to the refuge chambers contained systems to monitor or prevent entry of fire gases into the respective refuge chambers. Each refuge chamber also contained a Strata backup breathable air system in the chamber comprised of 4 sized 7108-liter medical grade oxygen bottles and a delivery system containing regulators, gauges, flow meters, and a delivery manifold, in addition to a CO2 scrubbing system.
Notwithstanding that all five air compressors in question would draw-in potentially harmful ambient air into the subject refuge chambers, the breathable air systems appeared to be in good repair.
On November 16, 2022, MSHA investigators traveled to the Middle Tennessee Mine to investigate the Petitioner’s claims, which are based in part on Nyrstar’s objections to the February 3, 2022, citations. The Investigation team determined the following:
• The mining method at the Middle Tennessee Underground zinc mine is drill and blast mining. The mine employed a total of 278 miners at the time of the investigation, all of whom worked underground.
• All miners are employees of Middle Tennessee Mine.
• At the time of the investigation, the mine worked two, twelve-hour shifts, seven days per week.
• The average entry dimensions inside the Middle Tennessee Mine are 14 feet high by 16 feet wide and all refuge chambers are within a 30-minute walking distance from active production and development areas. All entries traveled and observed during the investigation were consistent with respect to the average entry height and width dimensions listed in the petition.
• MSHA could not determine, based on the information provided by Petitioner, that the breathable air located inside each refuge chamber is rated for up to 48 hours to sustain at least 8 miners. While Petitioner alleges that the mine also includes refuge chambers for 16 people and that up to 48 hours of breathable air would be supplied to those chambers, the Petitioner provided no such evidence of that level of breathable air. MSHA’s investigation found some refuge chambers at the mine designed for 8 miners and other chambers for 16 miners, while certain of the chambers did not include any model specifications to even determine how many miners could be protected. Notably, Petitioner did not provide evidence that any of its refuge chambers contained 48 hours of breathable air for the number of miners rated for each chamber’s capacity.
• Fixed air monitors were not present inside the underground refuge areas. The mine operator utilizes the Drager 2500 gas monitors, and the instrument observed monitored the following gases: oxygen, carbon monoxide, hydrogen sulfide, nitrogen dioxide, and methane. The operator stated that everyone in a crew, except haul truck operators, carries a gas monitor.
• The installation of compressed air lines each time any of the refuge chambers is relocated would not result in a diminution of safety. MSHA reasonably presumes that reconnecting air lines, whether from the surface or at the refuge chambers themselves, will be undertaken carefully and competently without causing damage to the air lines or the refuge chambers. Notably, two of the refuge chambers observed in the investigation had been recently relocated and no damage was reported to the re-installed compressed air lines delivering air from the electric compressors to the refuge chambers.
• In a mine emergency, it is possible to redirect air flows in multiple areas of the mine. However, it is impossible to prepare and plan for all potential scenarios. Providing compressed air lines from the surface to each refuge area as required by the standard protects miners, especially when all areas of the mine could be affected by contaminants.
Nyrstar’s Middle Tennessee Mine is currently in non-producing status, but MSHA understands that the operator plans to begin partial or full production again in the future.
Petitioner is requesting a modification of § 57.11052(d) to not use compressed air lines from the surface as the means of providing air for the underground refuge chambers. Petitioner states that there are five active and one inactive refuge chamber(s) at the Middle Tennessee Mine. Petitioner states these refuge chambers have been supplied with a compressed air line delivering air from an Ingersoll-Rand 80-gallon electric compressor outside of the chamber for more than fifteen years. Petitioner asserts that the subject refuge chambers are designed to sustain 8 miners for 48 hours during a mine emergency, that the refuge chambers are currently located throughout the mine, and their locations are subject to change depending on the mining direction. Petitioner also asserts, that because the refuge chambers are already equipped with a minimum of a 48-hour internal air supply for up to 8 miners, Nyrstar seeks relief from § 57.11052(d)’s requirement to connect compressed air to the refuge chambers, and would therefore not use the referenced electric compressors now used to provide compressed air to the subject refuge chambers if the petition is granted.
Nyrstar asserts that the proposed alternative method will guarantee at all times no less than the same measure of protection as that afforded by the existing standard. In addition to Petitioner’s requested modification to use refuge chambers designed to sustain 8 miners for up to 48 hours, the Petitioner asserts that some refuges will sustain 16 people for up to 48 hours. It states that 48 hours is an adequate amount of time due to the primary, secondary, and tertiary escapeways available in every area of the mine. Notwithstanding that Petitioner did not provide sufficient information demonstrating that such quantities of breathable air were actually available in each of the subject refuge chambers, MSHA does not believe that, given the specific conditions at this mine, 48 hours of breathable air is sufficient and is at least as protective as providing compressed air lines directly to each refuge chamber.
Further, MSHA’s investigation revealed that, while some of the Petitioner’s refuge chambers have superficial airlock doors (and others had none at all), Petitioner did not provide evidence that the compressed air tanks located within each chamber could adequately purge the refuge chamber’s internal air while miners seeking refuge entered the chamber during an emergency. Dedicated compressed air lines from the surface are generally better suited to provide the essential positive air pressure/purge when needed. Therefore, MSHA does not believe that any of the subject refuge chambers, which all lack effective airlocks, would be at least as protective as applying the standard’s requirement to provide compressed air lines directly to the refuge chambers.
Notably, MSHA published a final rule for Refuge Alternatives for Underground Coal Mines in the Federal Register on December 31, 2008 (73 Fed. Reg. 80656), requiring operators to provide at least 96 hours of breathable air for each trapped miner in the refuge alternative. In the preamble to the final rule, MSHA reasoned that:
Each mine emergency is a unique event and it is impossible to predict with precision the period of time required to maintain miners prior to rescue. To provide for an added margin of safety, the Agency has determined that it is necessary to require a 96-hour supply of breathable air. The 96-hour supply of breathable air in the final rule will assist the rescue effort by providing necessary time for rescuers to safely reach trapped miners.
Id. at 80669. Similarly, MSHA believes that at least 96 hours of breathable air from compressed oxygen or compressed air cylinders should also be provided to each miner trapped in an underground metal or nonmetal mine. While MSHA recognizes that underground coal and metal nonmetal mines and the standards that govern them are different, the need to sustain life for miners trapped in any underground mine is the same.
For all of the aforementioned reasons, Petitioner has not demonstrated that the proposed alternative method will guarantee at all times no less than the same measure of protection as that afforded by the existing standard, as required by 30 C.F.R. § 44.4(a)(1).
In the alternative, Petitioner alleges that “Installing air lines each time the refuge chamber is relocated would result in a diminution of safety, whereas the requested relief provides an equivalent degree of safety to section 57.11052(d).” Petitioner further argues that “Each time the refuge chambers are relocated, there is a potential, no matter how slight, that the refuge chambers will be damaged in some manner. Similarly, if a compressed air line needs to be run from the surface and connected at each new location there is an additional chance, albeit small, that the lines or the connections will be damaged.
MSHA’s investigation report concluded that Petitioner provided no evidence that relocating refuge chambers and reconnecting compressed air lines has damaged or would damage the compressed air line connection to the refuge chambers or damage the integrity of the chambers themselves. As previously noted, two of the refuge chambers observed during the investigation had been recently relocated and no damage was reported to the re-installed compressed air lines delivering air to the refuge chambers. Applying the subject standard, i.e., requiring the operator to provide compressed air lines directly to the refuge chambers, will not diminish miner safety merely because moving and reconnecting the air lines could theoretically damage the air line or the integrity of the refuge chamber itself; thus, Petitioner has not satisfied the evaluation standard of § 44.4(a)(2) [that] application of the standard will result in a diminution of safety to the miners.
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 l0l(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(c), it is ordered that Nyrstar Tennessee Mines - Gordonsville LLC. Petition for Modification of 30 C.F.R. § 57.11052(d) at the Middle Tennessee Mine is hereby:
DENIED
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, 20112th 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 hea1ing, including specific objections to the proposed decision. A party other than the 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 bulletin board at the mine.
Brian Goepfert
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 paid, or provided by other electronic means this 10th day of February, 2025 to:
Donna V. Pryor
Husch Blackwell LLP
1801 Wewatta Street, Suite 1000
Denver CO 80203
Donna.Pryor@huschblackwell.com
Alexander Bullinger
General Engineer – MSHA Enforcement
cc: Mr. Oscar Frederick,
Director, Mine Safety Unit,
Workplace Regulation and Compliance Division,
Tennessee Department of Labor,
PO Box 124, Caryville, TN 37714
Oscar.Frederick@tn.gov
Brittney Goode, Miners’ Rep.
11750 Nashville Hwy.,
Baxter TN 38544
Bryan Glover, Miners’ Rep.
410 Little Indian Creek Rd.,
Buffalo Valley TN 38548
Jeremiah Plemmons, Miners’ Rep.
284 Bluehill Lane,
Gainesboro TN 38562
Lane Bennett, Miners’ Rep.
98 Club Springs Road,
Elmwood TN 38560