AUG 12 2008

In the matter of:

Blue Diamond Coal Company Mine #81

I.D. No. 15-12753

Petition for Modification

Docket No. M-2008-0 12-C

PROPOSED ORDER OF DISMISSAL

On April 18, 2008, Blue Diamond Coal Company filed a petition pursuant to lOl(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 811(c), and 30

C.F.R. § 44 et seq., for the modification of the application of 30 C.F.R. § 75.364(b)(l), a

mandatory safety standard. The petitioner requested modification of 30 C.F.R. § 75.364(b)(l), to allow the use of evaluation points to monitor air flow in an intake aircourse which was becoming unsafe to travel.

On July 29, 2008, MSHA received a request from the petitioner to withdraw the petition for modification assigned Docket No. M-2008-012-C. MSHA District 7 personnel were contacted to confirm that the aircourse was being traveled in its entirety and that the aircourse roof conditions did not pose a hazard to the examiners. The District had determined early in July that the area was safe to travel and could be either maintained in a condition safe for travel or sealed and the mine operator was so advised.

ORDER

Therefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Coal Mine Safety and Health, Blue Diamond Coal Company's Petition for Modification of 30 C.F.R. § 75.364(b)(l) at Mine #81is hereby:

DISMISSED.

Any party to this action desiring a hearing on this matter must file in accordance with 30 C.F.R. § 44 within 30 days. The request for hearing must be filed with the Administrator for Coal Mine Safety and Health, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939.

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 shall 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

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hearing site. If no request for a hearing is filed within 30 days af ter service thereof, the Order of Dismissal will become final.

Chief, Safety Division for
Coal Mine Safety and Health

Certificate of Service

I hereby certif y that a copy of this order of dismissal was served personally or mailed, postage prepaid, this l l'th. day of August, 2008, to:

Mr. Craig Travis,
Chief Engineer Blue Diamond Coal Company

P.O. Box 47

Slemp, Kentucky 41763

Melissa C. Beaty

Program Analyst

cc: Johnny Green, Executive Director, Kentucky Office of Mine Safety and License

Petition - Docket No. M-2008-0 12-C

AUG 12 2008