August 11, 2008
In the matter of Petition for Modification Blue Diamond Coal Company
#75 Mine
I.D. No. 15-17478 Docket No. M-2007-042-C
PROPOSED DECISION AND ORDER
On June 11, 2007, a petition was filed seeking a modification of the application of 30
C.F.R. § 75.364(b)(2) to the Petitioner's #75 Mine, located in Perry County, Kentucky. The Petitioner alleges that examination of the 2nd Return Mains cannot be completed because of water accumulations that prevent foot travel through this area. Therefore, the Petitioner contends that application of this standard is impractical to expose personnel to traveling this area and 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.
MSHA personnel conducted an investigation of the petition and filed a report of their findings 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, this Proposed Decision and Order (PDO) is issued.
Finding of Fact and Conclusion of Law
The petitioned standard, 30 C.F.R. § 75.364(b)(2) requires that:
(b) Hazardous conditions. At least every 7 days, an examination for hazardous conditions at the following locations shall be made by a certified person designated by the operator:...(2) In at least one entry of each return air course, in its entirety, so that the entire air course is traveled.
The Petitioner alleges that the petitioned area has experienced accumulations of water over time. Petitioner contends that, due to the water and distance from active works, it is impractical to expose personnel to traveling this area.
As an alternative to compliance with 30 C.F.R. § 75.364(b)(2), the Petitioner proposes to establish eight ventilation check points for the inlet evaluation points at the location shown on the attached map (Exhibit A) as “EP A1-A8,” to be evaluated by a certified person on a weekly basis. In addition, Petitioner proposes to establish three outlet evaluation points at the locations shown on the attached map as “EP A9-A11,” to be evaluated by a certified person on a weekly basis.
MSHA’s investigation report and subsequent discussions with the investigators revealed that the entire area could be sealed by constructing 11 seals. Also, by pumping the accumulated water and cleaning the loose material from the travel-way, the area could be examined as required by 75.364(b)(2).
The investigators were unable to evaluate EPs A10 and A11. The Evaluation Points were blocked by loose material that had been placed in the cut-through from the 2nd Return Mains to the 1st Return Mains (See Exhibit A). In addition, airflow at these locations was not moving in the proper direction according to the mine map.
As shown on the map, air enters the petitioned area from the west through eight entries. After the air passes through the petitioned area, it exits through one location to the east. This petition proposes to monitor the air entering the petitioned area at eight locations in the western end (EP A1-A8) and to monitor air exiting the petitioned area at three locations on the eastern end (EP A9-A11). As proposed, the EPs would not provide a true representation of the air entering and exiting the petitioned area. The distance between the proposed “Intake EP” and the closest “Permanent Outby EP” is approximately 2,700 feet. In addition, the alternative method proposed by the Petitioner would not ensure ventilation of the petitioned area. The petitioned area has the potential to short-circuit the ventilation without any indication of a problem at the proposed EPs, a condition that could allow dangerous concentrations of methane to accumulate. This mine was found to liberate approximately 80,000 cubic feet of methane per day. An explosion of this quantity of methane could have disastrous effects.
As stated in the preamble for 30 C.F.R. § 75.364, 61 Fed. Reg. at 9803,
Over the course of time, hazards such as methane accumulations and obstructions to ventilation can develop in these areas and can result in an explosion or loss of ventilation if not discovered and corrected.
The EPs as proposed do not provide the ability to ascertain the existence of such hazards. For this reason, Petitioner has not established that its alternative method guarantees no less than the same measure of protection afforded by the standard. Alternatively, Petitioner could seal the entire petitioned area, which then would not be subject to the required examinations under the standard. Therefore, Petitioner has not established that it cannot comply with the standard.
On the basis of the petition and the findings of MSHA's investigation, Blue Diamond Coal Company is not granted a modification of the application of 30 C.F.R.
§ 75.364(b)(2) to its #75 Mine as applied to the examination of the 2nd Return Mains area.
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 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(c), it is ordered that the Petition for Modification of the application of 30 C.F.R. § 75.364(b)(2) in the #75 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 Coal Mine Safety and Health, 1100 Wilson Boulevard, Arlington, Virginia 22209.
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.
Kenneth A. Murray Deputy Administrator for
Coal Mine Safety and Health