6/13/2024
In the matter of
Fossil Rock Resources, LLC Fossil Rock Mine
I.D. No. 42-01211
Petition for Modification Regulation Petitioned
Docket No. M-2023-028-C 30 C.F.R. § 75.1002(a)
Docket No. M-2023-029-C 30 C.F.R. § 75.500(d)
Docket No. M-2023-030-C 30 C.F.R. § 75.507-1(a)
PROPOSED DECISION AND ORDER
On August 10, 2023, Fossil Rock Resources, LLC filed the above listed petitions pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 811(c) and 30 Code of Federal Regulations (30 C.F.R.) The petitions are seeking a modification of the application of mandatory safety standards to its 30 C.F.R.§ § 75.500(d), 75.507-1(a), and 75.1002(a) to permit an alternative method of compliance to allow the use of non-permissible electronic surveying equipment at the Fossil Rock Mine I.D. No. 42-01211 located at 5125 N. Cottonwood Road, Orangeville, Emery County, Utah 84537. The mine is an underground coal mine.
The relevant standards;
The petitioned standard, 30 Code of Federal Regulations (30 C.F.R.) § 75.500(d) states, in relevant part,
(d) All other electric face equipment which is taken into or used inby the last open crosscut of any coal mine…..shall be permissible.
The petitioned standard, 30 Code of Federal Regulations (30 C.F.R.) § 75.507-1(a) states, in relevant part,
(a) All electric equipment, other than power-connection points, used in return air outby the last open crosscut in any coal mine shall be permissible except as provided in paragraphs (b) and (c) of this section.
The petitioned standard, 30 Code of Federal Regulations 30 C.F.R. § 75.1002(a) states,
(a) Electric equipment must be permissible and maintained in a permissible condition when such equipment is located within 150 feet of pillar workings or longwall faces.
The Petitions propose an alternative method of compliance to permit the use of battery-powered non-permissible surveying equipment, including, but not limited to portable battery operated mine transits, total stations surveying equipment, distance meters, and data loggers. The petitions alleges that the alternative method will at all times guarantee not less than the same measure of protection as the standard.
The MSHA District Office conducted an investigation and filed a report 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
MSHA investigators started the investigation and attempted to gather facts such as data about the instruments requested, interview miners and understand how the equipment is used and determine if there are any hazards associated with its use at the mine. The investigation determined that the mine is currently in active/non-producing status.
Rehabilitation work is currently being conducted and the mine is projected to begin coal production in December 2024. The current mine conditions are different now than the anticipated mine conditions when full production begins. Investigators determined that the methane levels cannot be effectively evaluated until the mine begins production. The investigator stated that the proposed non-permissible surveying equipment was not available nor on-site. The petition for modification investigation requires that a representative number of miners be interviewed and given an opportunity to provide comments regarding the petition for modification. The number of miners currently working at the mine do not represent the number of miners that will be working when the mine is in full production status. The number of miners is projected to increase by approximately ten times.
MSHA determined that the investigation for the petition for modification cannot be completed at this time. The investigation report must identify all hazards and address all practices and conditions relevant to the standard that is the subject of the petition. In addition, the report must address any impact the proposed modification may have on other safety or health standards.
The current mine conditions encountered during the rehabilitation process are not consistent with the mine conditions expected during full production when the non- permissible surveying equipment is anticipated to be used in the mine. The petitioner stated that the mine was projected to begin production in December 2024. Additionally, the methane gas levels cannot be evaluated until production begins.
The investigation requires that a representative number of miners be interviewed and given an opportunity to provide comments regarding the petition for modification. The number of miners currently working at the mine do not represent the number of miners that will be working when the mine is in full production status.
The submitted petition for modification proposes 15 models of surveying instruments being considered for use at the mine in addition to the specific models referenced in the Consent Order signed by the Assistant Secretary on September 21, 2018 (Consent Order). The petitioner provided supplemental statements indicating that 6 of the 15 proposed instruments meet the criteria for “similar low voltage battery-operated total stations and theodolites” as described in the Consent Order. Similar low voltage battery-operated equipment must have an ingress protection (IP) rating of 66 or greater and the battery voltage must be 8 volts or less. Although the supplemental statements indicate the proposed instruments meet the criteria of the Consent Order, the petitioner failed to provide supporting documentation to verify their statements.
The petition for modification for non-permissible electronic surveying equipment (NPESE) has previously been granted only for theodolites and total station surveying instruments that meet the criteria outlined in the Consent Order. The use of other non- essential non-permissible electronic equipment such as laser distance meters, data loggers, electric drills, etc. were not permitted. The investigation determined the proposed non-permissible surveying equipment was not available and not present at the mine site.
On the basis of the petition and the findings of MSHA’s investigation, it cannot be determined at this time that the petitioner provides an alternate method of compliance that will at all times guarantee no less than the same level of protection 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 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(c), it is ordered that Fossil Rock Resources, LLC’s Petition for Modification of the application of 30 C.F.R. § 75.500(d), 30 C.F.R. § 75.507-1(a) and 30 C.F.R. § 75.1002(a) at the Fossil Rock 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, 201 12th Street South, Arlington, Virginia 22202.
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 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 13th day of June , 2024 to:
R. Henry Moore
Arthur M. Wolfson
Patrick W. Dennison
Fisher & Phillips LLP
Six PPG Place
Suite 830
Pittsburg, PA 15222
hmoore@fisherphillips.com
Robert S. Roark
Mine Safety and Health Specialist
cc: Mr. Justin Barrington, Director, Utah Office of Coal Mine Safety, 451 E 400 North Rm 135 Box 6009, Price, UT 84501
jbarrington@utah.gov