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May 30, 1973

requests modification of the application of sections 311(f) and 311(g) of the Federal Coal Mine Health and Safety Act of 1969 (the Act) and the regulations prescribed in 30 CFR 75.1100-1 (f), 75.1101-1 through 75.1101-22, and 75.1103–1.2 These standards all relate to automatic fire detection or suppression in underground coal mines.

Gateway originally filed a petition in May 1970 and requested modification of the application of 30 CFR 75.1100-2 (b), which then required 150 feet of rubber-lined firehose at each firehose outlet along a belt conveyor entry.3 35 F.R. 5247. Notice of the petition was published in the Federal Register in compliance with section 301 (c) of the Act, on October 21, 1970. No comments were received as a result of such publication. On December 10, 1970, Gateway amended its petition to include a request for modification of the application of

1 P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1970).

Gateway's request as to the mandatory standards which require installation of automatic fire sensors is limited to section 311(g) of the Act and 30 CFR 75.1103-1. On February 12, 1973, additional sub-parts to this section became effective, which prescribe the components and standards of performance required for the automatic sensors. 37 F.R. 16545. The modification that is granted for 30 CFR 75.1103-1 includes modification of the application on these new sub-parts, 75.1103-2 through 75.1103-10.

3 This section has been amended since the petition was originally filed so that 500 feet of hose is now required. In fact, several of the regulations involved in this proceeding have gone through changes since the case began. The modification granted herein by the Board pertains to the mandatory safety standards in effect at the time of the Board's order herein.

sections 311(a), (f), and (g) of the Act, 30 CFR 75.1100-1 (f), 30 CFR 75.1101-1 through 75.1101-22, and 30 CFR 75.1103-1. The amended petition applied to the entire beltconveyor system in Gateway Mine. The alternative proposed by Gateway to the mandatory standards was the fire suppression and prevention system then installed in the mine.

A full evidentiary hearing was held and on October 15, 1971, the Administrative Law Judge issued a decision denying Gateway's petition. The Judge's decision was appealed to this Board in November 1971, and an oral argument was held. At the oral argument, the parties agreed to attempt to reach a stipulated settlement of the case, and the Board for that reason held the case in abeyance." Counsel and the technical experts for the parties met over the next ten months and, on September 8, 1972, filed a proposed stipulation with the Board. The Board, finding the stipulation incomplete and unclear, informally met with the parties and suggested that the stipulation be redrafted. On January 12, 1973, a revised stipulation was filed.

Section 311(a) is the broad general statutory provision relating to fire protection. The request for modification of this section has been abandoned by Gateway, and in light of our grant of modification of more specific sections of the Act and related mandatory standards, we do not believe a modification of this general section is appropriate and no further reference thereto will be made.

5 The Board did decide a consolidated crossappeal filed by the Bureau involving an application for review of notices of violation issued for Gateway Mine while the petition for modification was pending. Gateway Coal Company, 1 IBMA 82, 79 I.D. 102 (1972).

By virtue of the present stipulation, Gateway has limited its request for modification to the belt drives on the main and secondary belts. It has agreed to maintain the present firefighting system, to install hoses meeting the length and flow requirements in the regulations, to station a man at any belt drive when the television camera, which normally monitors the drive, is not operative, and to install automatic fire-suppression devices at the butt belt drives."

On January 13, 1973, the Bureau in reply to Gateway's specific request for relief restated its agreement to the modification of the application of all of the above mandatory standards except 30 CFR 75.1100-1(f). Therefore, the parties' sole disagreement is whether Gateway may install, in areas where water pressure is in excess of 150 p.s.i., firehoses with less than the hose-bursting ratio required by 30 CFR 75.1100-1(f).

Since notice of Gateway's original petition for modification was published in the Federal Register on October 21, 1970, both the Gateway request and the pertinent regulations have been amended. Following the filing of the revised stipulation of the parties the Board concluded that strict compliance with the provisions of section 301 (c) of the Act required republication in the Federal Register of the Gateway proposal as amended. On

Gateway has withdrawn the petition in relation to the butt belts, and consequently has agreed to comply with the fire-suppression standards for the butt belts.

March 1, 1973, there was published in the Federal Register notice of the amended petition together with the stipulation filed by the parties on January 12, 1973, 38 F.R. 5485. The notice provided that parties interested in Gateway Coal Company's amended petition and the stipulation, should file comments or request a hearing within 30 days of publication. The notice further stated that in the absence of objection or necessity for further hearing the Board proposed to render its decision based upon consideration of the stipulation and the record in the proceeding. The only comment filed with the Board as a result of this publication was from the United Mine Workers of America (UMWA), the representative of the miners.

On April 2, 1973, the UMWA, pursuant to this notice and section 4.552 of the regulations filed an opposition to the amended petition of Gateway. UMWA alleged generally that the Gateway proposal does not meet the specific provisions of section 301 (c) of the Act and "demands strict proof as to the condition and operation of the mine here involved *** and as to the reasons for the proposed modification of or exception from the mandatory safety standards" and requested a public hearing on the matter pursuant to the provisions of section 301 (c) of the Act. Both Gateway and the Bureau of Mines filed replies to the opposition of UMWA. Gateway and the Bureau allege that UMWA at this late stage in the proceeding

May 30, 1973

has waived its right to request any further evidentiary hearing on this matter. In support of their opposition they point out that UMWA has been served with all pleadings and documents in this proceeding (including the original and final stipulations of the parties) and has had actual notice of all proceedings before the Hearings Division and this Board. UMWA's only response in the entire proceeding was an answer filed in the proceeding in October 1970. UMWA failed to appear at any of the hearing sessions; failed to send representatives to conferences held for the purpose of discussing the requested modification; and failed to submit either comments or objections to the proposed stipulation. The Bureau points out that the purpose of the Federal Register publication is to give notice to "other interested parties" to enable them to comment or participate. It is further urged that since UMWA has had actual notice of all proceedings and had the opportunity to actively participate in all phases of the case, it cannot now be heard to request that the entire proceeding be reopened for a new hearing. Gateway observes that UMWA has raised no objection to any specific stipulated fact or made any specific comments on the proposal.

The Board is persuaded by the arguments of the Bureau and Gateway and is disinclined to reopen the hearing in this proceeding. The record is clear that UMWA has had actual notice of all proceedings before the Administrative Law Judge

and this Board and that its nonparticipation has been of its own choosing. The time has come to conclude this litigation. Therefore, the Board will deny the request of UMWA for reopening of the record and for further hearing.

DECISION

It is significant that throughout this proceeding the Bureau has recognized that Gateway Mine is generally known as a well-operated, safe mine. It is also significant that the representative of miners (UMWA) elected not to participate in the proceeding after filing an answer opposing the May 1970 petition, and that no comments were filed by any other person as a result of the publications in the Federal Register. Finally, it is most significant that, after extensive consultation and study, the Bureau's technical experts on mine safety agree that the alternative proposed by Gateway will guarantee no less than the same measure of fire protection as the mandatory standards.

For these reasons, and based upon a review of the hearing record and the stipulation of the parties, the Board concludes that Gateway has established that it is entitled to the modification it seeks, with the exception of the requested modification of the application of 30 CFR 75.1100-1 (f) (1). The parties have not stipulated as to this standard, and there is no evidence in the record to support a finding that the alternative proposed by Gateway

will meet the standard of safety required by section 301 (c). Therefore, the Board makes the following findings of fact:

1. Gateway has installed in Gateway Mine a belt system and fire. detection and suppression system described in paragraphs numbered 1-41 of the attached appendix, entitled, "Stipulations of fact."

2. Gateway has agreed to maintain the above-described system.

3. Gateway has agreed to add to the system: (a) at each belt drive, 500 feet of firehose capable of delivering to the belt drive 50 gallons of water per minute at 50 pounds pressure per square inch at the hose nozzle; (b) a fire-suppression system at the butt belt drives that will comply with 30 CFR 75.1101 et seq.; (c) a man to be stationed at any transfer point or belt drive where the television monitor is malfunctioning.

4. Gateway has established an alternative method for achieving on the main and secondary belt drives of Gateway Mine no less than the same measure of protection afforded the miners by the standards of sections 311(f) and 311 (g) of the Act, 30 CFR 75.1101-1 through 75.110122, and 30 CFR 75.1103-1 through 75.1103-10.

Based upon the foregoing findings of fact, the Board concludes that Gateway Coal Company is entitled, with respect to Gateway Mine, to modification of the application of sections 311(f) and 311(g) of the Act, 30 CFR 75.1101-1 through 75.1101-22, and 30 CFR

75.1103-1 through 75.1103-10 for the belt drives on the main and secondary belts, conditioned upon compliance with the stipulation of the parties filed January 12, 1973, a copy thereof being attached hereto as an Appendix p. 387.

ORDER

WHEREFORE, pursuant to the authority delegated to the Board by the Secretary of the Interior (43) CFR 4.1(4)), IT IS HEREBY ORDERED that:

1. Gateway Coal Company's petition for modification of the application of the mandatory standards of sections 311 (f) and 311 (g) of the Act and 30 CFR 75.1101-1 through 75.1101-22, and 30 CFR 75.1103–1 through 75.1103-10 for the belt drives on the main and secondary belts at Gateway Mine IS GRANTED conditioned upon compliance with the terms and conditions of the stipulation of the parties attached hereto and made a part hereof;

2. Gateway Coal Company's petition for modification of the application of 30 CFR 75.1100-1 (f) IS DENIED;

3. The request of the United Mine Workers of America for reopening and for further hearing IS

DENIED;

4. This decision is effective immediately except that Gateway Coal Company will have a period of sixty (60) days from the date hereof to install firehoses capable of delivering a minimum of 50 gallons of water per minute at 50 p.s.i. to the

May 30, 1973

belt-drive equipment, which period of time may be extended by the Bureau of Mines if in its judgment circumstances warrant such extension;

5. A copy of this decision shall be served immediately upon the representative of miners at the Gateway Mine by a representative of the Bureau of Mines pursuant to the provisions of section 301 (c) of the Act; 6. Pursuant to the provisions of section 107(a) of the Act the Gateway Coal Company shall immediately post a copy of this decision on the Gateway Mine bulletin board; and

7. Pursuant to the provisions of section 107 (b) of the Act the Bu107(b) reau of Mines shall immediately mail a copy of this decision to the official of the Commonwealth of Pennsylvania charged with the responsibility for administering that State's coal mine health and safety laws.

C. E. ROGERS, JR., Chairman.

DAVID DOANE, Member.

APPENDIX

STIPULATIONS OF FACT

1. Gateway Mine is located in the Pittsburgh seam in Greene County, Pennsylvania. Coal is conveyed along approximately twenty (20) miles of belt from the working places to the tipple.

2. The main and face belts (hereinafter referred to as "belt") were placed in operation in April 1963,

and has carried more than 20 million tons of coal.

3. The belt is a United States Bureau of Mines approved neoprene flame resistant belt.

4. The belt is a transit aligned, roof suspended belt with the head. and tail pieces set firmly in concrete to prevent movement and minimize friction at the head and tail pieces.

5. Belt supports are A-frames which are set on approximately 970foot centers.

6. The belt is driven by electrical motors. The electrical equipment controlling these drives is enclosed in noncombustible structures.

7. An underground storage bin receives coal from a coal crusher. Feeders located at the bottom of the storage bin permit an even flow of coal to be carried on the belt from the bill to the tipple.

8. Oversized idlers at the head and tail pieces and take-up drives with the attendant oversized shafts and bearings reduce possible friction at the drives.

9. The belt flights are set in sequence and when one belt flight stops all inby belts automatically stop.

10. The belt has been aligned with no or minimum of canting to assure training thereby minimizing friction.

11. Heavy duty loading and troughing idlers are installed so that they rotate slower than regular sized idlers.

12. The belt has specially designed reactor starting circuitry

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