6/10/2026
In the matter of PETITION FOR MODIFICATION
Kepler Processing Company LLC
Kepler No. 1 Prep Plant
Mine I.D. No. 46-04637 Docket No. M-2026-001-C
PROPOSED DECISION AND ORDER
On December 10, 2025, Kepler Processing Company LLC filed a petition seeking modification of the application of 30 Code of Federal Regulations (30 C.F.R.) 77.214(a) at its Kepler No. 1 Prep Plant located in Pineville, West Virginia. The petitioner asserts that the alternative method will guarantee no less than the same measure of protection
afforded the miners under the mandatory standard.
The petitioned standard, 30 C.F.R 77.214(a) Refuse Piles; general, states, in relevant part,
(a) Refuse piles constructed on or after July 1, 1971, shall be located in areas which are a safe distance from all underground mine airshafts, preparation plants, tipples, or other surface installations and such piles shall not be located over abandoned openings or steamlines.
The petitioner is requesting a modification of the standard to allow for the use of coarse coal refuse to backfill five mine openings and reclaim a highwall associated with the Road Fork Development Company, Inc.—Kepler Sewell Mine (MSHA Mine I.D. No. 46-09287) portal area. The Kepler Sewell Mine is located in the Sewell coal seam and is currently abandoned; however, the mine may be reopened. The Kepler Sewell Mine has approximately two to five years of reserves that would be mined prior to mine abandonment and backfilling of the mine openings.
MSHA personnel investigated the merits 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, the Administrator issues this Proposed Decision and Order.
Findings of Fact and Conclusions of Law
MSHA investigated pertinent details of the Kepler No. 1 Prep Plant (MSHA Mine I.D. No. 46-04637) on April 16, 2026. The investigation included an item-by-item review of the proposed petition and an onsite mine visit. During the onsite visit, the MSHA investigator verified that the proposed Petition for Modification (PFM) was posted on the mine’s bulletin board and explained the PFM process and all stipulations to the miners and supervisors.
The following individuals participated in the investigation at the Kepler No. 1 Prep Plant as representatives of Kepler Processing Company LLC:
Sesto Punturi, Environmental Compliance Coordinator
Jon Legg, Engineer
Ryan Cox, Alliance Consulting
There was no Representative of Miners at the mine; however, MSHA interviewed miners working on the Wallace Cabin Branch Slurry Impoundment on site, during the day shift, regarding the PFM. No negative comments were provided by any of the miners interviewed during the investigation.
The subject coal refuse facility began operating in 1995 and has been used for coarse coal refuse disposal in conjunction with the plant’s Wallace Cabin Branch Slurry Impoundment, ID No. 1211WV04-00704-01. The proposed expansion plan for the refuse disposal area would use coarse coal refuse to cover five (5) mine openings associated with the Roadfork Development Company’s Kepler Sewell Mine upon final abandonment. The five (5) mine openings are located on the western side of the Wallace Cabin Branch Slurry Impoundment and are at an approximate elevation of 1,622 feet.
Currently, the five (5) abandoned mine openings are open and fenced to prevent entry. There are no pipes installed in any of the entries. Any water exiting from the five (5) openings would discharge into the existing diversion ditch on the Sewell coal seam bench. However, there was no evidence in area of the mine openings that would suggest water discharge on a regular basis. Considering the future mining projections and associated coal contours provided on Drawing B25-303-E5, the Kepler Sewell Mine generally dips to the south-southwest. The five (5) of the mine openings (Entry #1 – Entry #5, as identified on the plan view map) would be on the updip side of the mine.
The petitioner is proposing to use coarse coal refuse to cover the mine openings, and as shown in detail drawings B25-303-E3 and B25-303-E4. The five (5) mine openings shall be back stowed with soil or rock to a length as specified in 30 CFR, Part 75.1711-2, and any loose debris shall be removed prior to placing the backfill. Additionally, an underdrain system, consisting of durable rock cobbles and a perforated pipe, wrapped in filter fabric, shall be installed at the base of the highwall along all the mine openings. The mine entry pipes shall be connected to the perforated pipe within the underdrain. The mine opening pipes shall be extended to a minimum of 40 feet inby the opening and positioned along the rib to minimize damage to and movement of the pipes during backfilling operations. The underdrain and mine drainpipe shall be extended to discharge into the refuse disposal area perimeter ditch. The internal underdrain system would provide a controlled outlet if any water accumulated near the sealed mine openings. Additionally, non-refuse material shall be placed at the mine openings and along the exposed coal seam to cover the coal seam with at least four (4) feet of non-combustible material.
With the approval of the petition for modification, coarse coal refuse will be placed over the entries and drainage control measures will be installed in each of the five (5) mine openings. The drainage control measures will substantially reduce the likelihood of the potential for water to build up inside the mine which could lead to a “blowout”. Additionally, the refuse disposal facility should not be affected. Upon completion, the backfilled area will be graded to divert surface water to properly sized and constructed diversion ditches. The plan does not have any effect on the operation, therefore training plans will not have to be revised to reflect any changed conditions or practices.
The granting of this petition would affect all miners at the mine.
The petitioner asserts that the alternative method will guarantee no less than the same measure of protection afforded the miners under the mandatory standard.
Conclusion
Based on the investigation discussed above, MSHA determined that using coarse coal refuse to cover the abandoned mine openings and reclaimed the highwall associated with the abandoned Kepler Sewell mine in accordance with 30 CFR 77.214(a) is adequate, if the operator follows all of the engineering recommendations and adheres to the Terms and Conditions of the Proposed Decision and Order.
On the basis of the petition and MSHA’s investigation findings, and the foregoing reasons, Kepler Processing Company LLC is granted a modification of the application of 30 C.F.R. § 77.214(a) at its Kepler No. 1 Prep Plant.
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 Kepler Processing Company LLC’s Petition for Modification of the application of 30 C.F.R. § 77.214(a) in the Kepler No. 1 Prep Plant is hereby:
GRANTED, conditioned upon compliance with the following requirements.
Terms and Conditions
1. Existing canopies, pipes, loose debris, vegetation, old equipment, and utility poles shall be removed/relocated as part of site preparation activities and prior to placing the backfill.
2. All sloughed overburden material shall be removed for at least 12 feet in front of and to either side of the five (5) mine openings to allow for placement of backfill material for sealing.
3. An underdrain system consisting of durable rock cobbles and a perforated 6- inch-diameter SDR 17 HDPE pipe wrapped in filter fabric shall be installed at the base of the highwall along the entire portal area. The underdrain shall be a minimum of five feet wide and three high and extend to the perimeter ditch.
4. A 6-inch diameter; SDR 17 pipe shall be installed into each of the five (5) mine openings. The proposed pipes shall be extended a minimum of 40 feet into the opening and positioned along the rib to minimize damage to, and movement of, the pipes during backfilling operations.
5. Each of the mine entry pipes shall be connected to perforated pipe within the underdrain.
6. Earthen backfill material, consisting of soil and rock, shall be non-combustible and contain enough fine material to ensure an airtight seal as it is placed in maximum 2-foot-thick lifts and compacted to at least 90% of the maximum dry density as defined by the Standard Proctor test. The backfill material used to seal mine openings shall be non-acid producing soil and rock shall extend for a distance of at least 25 feet into the openings.
7. The earthen backfill material shall be placed in the exposed portal areas to:
a. a minimum thickness of 4 feet above the five (5) mine openings;
b. 4 feet above any visible cracks in the exposed highwall; and
c. at least 4 feet over and above any exposed coal seams.
8. The earthen backfill material shall ensure an impervious seal for the coal seam prior to the placement of any coarse coal refuse over the backfill area.
9. The coarse coal refuse fill material shall not exceed a 2:1 slope (horizontal: vertical) or otherwise provide a static safety factor of 1.5 for the mine opening backfill. The coarse coal refuse shall be placed in maximum 2-foot-thick lifts and compacted to at least 90% of the maximum dry density as defined by the Standard Proctor test. The coarse coal refuse fill material shall be placed in a manner which precludes the fill from impounding water.
10. The mine operator shall notify the MSHA District Manager of the anticipated date that the mine sealing operations will begin and MSHA inspectors shall be given ample opportunity to observe the sealing operations. The mine operator must provide a certification, by a licensed professional engineer, upon completion of the sealing of the five (5) mine entries. The engineer’s certification shall contain a statement that the mine openings were sealed and the underdrains constructed in accordance with the plans and specifications provided in this petition for modification and shall include pertinent documentation such as photographs, soil compaction records, Standard Proctor test results, slope stability analysis and any other relevant quality assurance data to verify compliance with the terms and conditions outlined herein.
Unless specifically mentioned herein, nothing in this Order changes or supersedes the requirements otherwise imposed by the Mine Act, other mandatory standards or regulations, or approved plans.
The petitioner shall include the above terms and conditions in the initial and annual refresher training as required in its approved Part 48 training plans to ensure that miners are aware of the stipulations contained in this petition.
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, 200 Constitution Ave NW, Suite C3522, Washington, DC, 20210.
Any hearing request must contain a concise summary of position on the issues of fact or law 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 on 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 of this Proposed Decision and Order, the Decision and Order will become final and must be posted by the operator on the bulletin board at the mine.
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 paid, or provided by other electronic means this 10th day of June, 2026, to:
Sesto Punturi, III
Environmental Compliance Coordinator, Kepler Processing Company, LLC
3864 R.D. Bailey Highway State Route 97
Pineville, WV 24874
SPunturi@alphametresources.com
Megan N. Lavage
Senior Civil Engineer
cc: Frank Foster, Director
Office of Miners' Health Safety & Training
#7 Players Club Dr. Suite 2, Charleston WV 25311
Frank.G.Foster@wv.gov