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[Federal Register: September 9, 2003 (Volume 68, Number 174)]
[Rules and Regulations]
[Page 53037-53050]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 48 and 75
RIN 1219 AB33
Emergency Evacuations
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Final rule
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SUMMARY: The Mine Safety and Health Administration (MSHA) is issuing a
final rule for underground coal mines in response to dangers to which
miners are exposed during mine fire, explosion, and gas or water
inundation emergencies. This final rule establishes two new standards
concerning Emergency Evacuations and Mine Emergency Evacuation and
Firefighting Program of Instruction. In addition, existing part 48,
subpart A, Sec. 48.8 is amended.
On December 12, 2002, MSHA published an emergency temporary
standard (ETS) which required operators of underground coal mines to
designate for each shift that miners are underground, a responsible
person to take charge during mine fire, explosion and gas or water
inundation emergencies. In addition, the ETS required the responsible
person to conduct an immediate mine evacuation when there is a mine
emergency that presents an imminent danger to miners due to fire,
explosion or gas or water inundation. The ETS also broadened the
existing requirements for a program of instruction for firefighting and
evacuation to address fire, explosion, and gas or water inundation
emergencies. Finally, the ETS revised the part 48 training requirements
to reflect that annual refresher training includes a review of the mine
fire, explosion, and gas or water inundation emergency evacuation and
firefighting plans in effect at the mine. In accordance with the
Federal Mine Safety and Health Act of 1977 (Mine Act), the ETS must be
replaced by final standards no later than 9 months after publication of
the ETS. This final rule supercedes the ETS.
DATES: This final rule is effective September 9, 2003.
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols Jr., Director;
Office of Standards, Regulations, and Variances, MSHA; phone: (202)
693-9440; facsimile: (202) 693-9441; E-mail: nichols-marvin@msha.gov.
SUPPLEMENTARY INFORMATION: This rule is issued in accordance with
sections 101(b) and 115 (30 U.S.C. 811, 825), of the Federal Mine
Safety and Health Act of 1977 (Mine Act). An Emergency Temporary
Standard (ETS) was promulgated December 12, 2002 (67 FR 76658). The ETS
was effective immediately upon publication. The ETS established two new
standards in subpart P; Sec. 75.1501, Emergency Evacuations, and Sec.
75.1502, Mine Emergency Evacuation and Firefighting Program of
Instruction. Subpart P was renamed "Subpart P--Mine Emergencies.'' In
addition, existing part 48, subpart A, Sec. 48.8 was revised.
In accordance with section 101(b)(3) of the Mine Act, the ETS also
served as a proposed rule. The preamble to the proposed rule discussed
specific provisions and MSHA solicited comments on those provisions.
You can view comments filed in response to the rulemaking at http://www.msha.gov/currentcomments.htm.
Section 75.1501 requires an operator to designate a responsible
person to take charge when a mine emergency involving a fire,
explosion, or gas or water inundation presents an imminent danger to
miners. Section 75.1501 also requires that miners receive instruction
on the identity of the responsible person designated by the operator
for their workshift.
Section 75.1101-23 was redesignated as Sec. 75.1502 and revised to
include all mine emergencies resulting from a fire, an explosion, or a
gas or water inundation (67 FR 76658, Dec. 12, 2002). This final rule
Sec. 75.1502 requires that firefighting and evacuation plans address
these emergencies; that miners be trained in all elements of the mine
emergency evacuation and firefighting plan; and that mine operators
instruct miners regarding any revisions to the plan after its
submission to MSHA for approval.
Section 48.8, paragraph (b)(4), is amended to include in the annual
refresher training of miners, a review of the emergency evacuation and
firefighting plans in effect at the mine.
MSHA held four public hearings on the proposed rule in Lexington,
Kentucky on February 4, 2003; Grand Junction, Colorado on February 6,
2003; Charleston, West Virginia on February 11, 2003; and Pittsburgh,
Pennsylvania on February 13, 2003. The comment period closed on
February 28, 2003. This final rule addresses all of the relevant
comments received on the proposed rule.
Waiver of Delayed Effective Date
In accordance with the requirements of Sec. 553(d) of the
Administrative Procedure Act (5 U.S.C. 553), MSHA publishes a final
rule in the Federal Register at least 30 days before its effective
date. However, Sec. 553(d)(3) of the Administrative Procedure Act
permits an agency to dispense with this requirement when the agency has
found that there is good cause to do so, and it publishes its finding
in the Federal Register with the final rule. As explained below, MSHA
finds that good cause exists to make this final rule effective upon its
publication today in the Federal Register.
One of the primary purposes of the delayed effective date
requirement is to provide affected persons or industries with adequate
time to prepare for compliance with the rule. MSHA's final rule on
Emergency Evacuations published in today's Federal Register is very
similar in all major respects to the ETS, which has been in effect
since December 12, 2002, and underground coal mine operators have been
complying with the ETS during those eight months. Therefore, MSHA finds
that no additional time is necessary for underground coal mine
operators to come into compliance with the requirements of this rule
because the underground coal mine industry is already familiar with the
major provisions of the final rule.
In addition, the agency's ETS on Emergency Evacuations will expire
on September 12, 2003. The expiration of the ETS would leave a critical
void in miners' safety if the final rule is not effective by that date.
For these reasons, MSHA finds good cause to waive the requirement for a
delayed effective date, thereby allowing the final rule to be effective
today, upon publication in the Federal Register.
I. Discussion of the Final Rule
A. Background
During the past three years, at least 14 miners have died in two
accidents as a result of faulty mine evacuations. Explosions at the Jim
Walter Resources, Inc. No. 5 Mine in Alabama on September 23, 2001,
resulted in 13 fatalities. An initial roof fall and explosion occurred
at 5:20 p.m. and resulted in injuries to four miners. One of the four
miners was severely injured and could not move. Miners from other parts
of the mine responded in an ill-coordinated effort. The response was
marked by confusion. For example, after the Carbon Monoxide (CO) Room
operator (monitoring the CO monitoring system at the mine) was notified
of the explosion, he attempted to locate the afternoon shift haulage
foreman who he believed was working at the mine. This foreman was not
working that shift. There was also some confusion about where the first
explosion occurred.
By the time the second explosion occurred at 6:15 p.m., 12
additional miners traveled towards the initial explosion site and these
miners entered the affected area without gas detection equipment. Seven
additional miners were directed to travel to the emergency area, but
the 6:15 p.m. explosion occurred before they arrived in the area of the
initial explosion. It is uncertain whether the miner immobilized by the
first explosion died as a result of the first or second explosion. It
is certain, however, that 12 additional miners died from the second
explosion as they were attempting to reach the injured miner.
MSHA's accident investigation team determined that, in addition to
not following proper evacuation procedures after the initial explosion,
there was never a mine wide evacuation initiated at the mine, even
after an explosion damaged critical ventilation controls. MSHA's
accident investigation team determined that gas detection equipment was
not found on any of the fatally injured miners nor did the accident
investigation find such equipment in the affected section where the
explosion occurred. Gas detection equipment is essential to determine
the composition of the mine atmosphere and to secure the safety of
those entering unknown atmospheres, especially when ventilation
controls are damaged. MSHA's accident investigation report concluded
that the lack of training and the failure to conduct fire and emergency
drills relative to proper evacuation procedures "affected the miners'
response'' to the emergency situation of September 2001.
While one commenter to the proposed rule stated that the Jim Walter
accident was an "aberrational situation,'' MSHA notes that every mine
accident is unique and may present different facts and circumstances.
MSHA has carefully reviewed this accident, and believes that the final
rule is appropriately proactive in developing a systematic procedure
for responding to mine emergencies. MSHA has determined that had a
responsible person knowledgeable about the mine safety systems taken
charge of the evacuation and rescue effort, fewer miners would have
been permitted to remain underground or re-enter the affected mine area
during the mine emergency.
Under this rule, all miners underground who were not essential to
providing a mine emergency response to the explosion would have
immediately evacuated the mine. In addition, the responsible person
could have assured that the miners attempting a rescue were equipped
with gas detection equipment. Moreover, miners would have understood,
from mine emergency evacuation and firefighting training, that an
evacuation was necessary and that they should not re-enter the
emergency areas without instruction and appropriate safety equipment.
On July 31, 2000, four explosions occurred at the Willow Creek mine
in Utah. The initial explosion and subsequent fire occurred
approximately seven minutes before the later explosions that killed two
miners. One commenter to the proposed rule noted that it was
inappropriate to use the Willow Creek accident to justify the ETS
because the commenter believed the mine responded appropriately and
evacuated expeditiously. After careful review of the accident, MSHA has
concluded that the fatalities may have been prevented. Although firefighting activities began almost
immediately after the first explosion, section evacuation procedures
did not begin immediately and conditions worsened before the fatal
explosions occurred. Had the decision to evacuate been made sooner,
after it became evident that the fire was not controllable, and had the
individuals present at the affected mine section been more aware of the
urgent need for evacuation under emergency conditions, the fatalities
might not have occurred. Some miners present at the mine were equipped
with personal emergency devices (PEDs) which are capable of
communicating text messages to underground personnel. Many miners had
evacuated the mine and these devices alerted the remaining miners to
evacuate the mine. The message to evacuate, however, was not
transmitted until after the third of four explosions occurred. Had a
responsible person been in attendance at the mine to take charge during
the mine emergency, that person could have made a decision to initiate
and conduct a mine evacuation sooner.
Mine emergencies that trigger the need to evacuate include
inundations. There have been two water inundations and one gas
inundation where miners have died. In 1968, Saxsewell No. 8 Mine in
Hominy Falls, West Virginia, experienced an inundation of water when a
continuous miner cut through into the workings of an abandoned mine.
There were 26 men in the mine at the time of the occurrence. One man
escaped from the mine unassisted, but the others were trapped in the
mine. Fifteen miners were rescued five days later and six others were
rescued 10 days after the inundation occurred. Four men were fatally
injured. In 1977, in Tower City, Pennsylvania, at Porter Tunnel, an
inundation of water entered the mine through a breach in the mine floor
at the low side rib in the gangway. The water had accumulated in the
unmapped abandoned workings and broke through the floor of the
advancing gangway. The inundation caused the death of nine miners,
injuries to three and entrapment of one who was eventually rescued. Six
miners in the affected section escaped safely through the return air
emergency escapeway leading to the surface. The miners in the other
sections, 65 in all, traveled both the intake and return air escapeways
leading to the surface.
In 1978 at Moss 3 Mine in Duty, Virginia, water inundated some
abandoned sections in the mine soon after work began on a 265 foot
single-entry drainway to connect an abandoned area of the mine to the
surface. On April 4, 1978, four men were working to advance the
drainway into an abandoned mined-out area. Although the air in the
abandoned area was not tested after a test borehole penetrated the
area, the continuous miner was used to penetrate into the abandoned
area. Immediately after breaching into the abandoned area, the drainway
was inundated with blackdamp (oxygen-deficient air). Two of the four
miners who were advancing the drainway successfully retreated to the
surface. The other two miners perished. The blackdamp also killed three
other miners who went underground without protective equipment to
search for the missing men. Similarly unequipped during rescue
attempts, two other men were also overcome with blackdamp, but were
successfully assisted to the surface.
A commenter asked that MSHA consider certain mine accidents that
occurred during the last two years to determine whether there were
deficiencies in the mine operator's emergency response. The commenter
specifically asked MSHA to consider: the July 24, 2002 water inundation
at Quecreek No. 1 Mine in Pennsylvania; the April 17, 2002 fire at the
Blue Diamond mine in Kentucky; the September 16, 2002 fire at the
Fairfax mine in West Virginia; the January 6, 2003 fire at the Mine 84
in Pennsylvania; the January 22, 2003 explosion at the McElroy mine
shaft involving Central Cambria Drilling in West Virginia; and the
February 13, 2003 fire at the Loveridge mine in West Virginia. Because
there is no final MSHA accident report for Blue Diamond mine, McElroy
mine, and Loveridge mine, MSHA has not drawn a conclusion as to the
mine operator's emergency response in relation to this final rule. MSHA
addresses the Quecreek accident in the section-by-section discussion of
Sec. 75.1501(d).
The Fairfax mine fire occurred on September 16, 2002, before
promulgation of the ETS. In its August 20, 2003 accident investigation
report of the Fairfax mine fire, MSHA concluded in part that,
"Discovery of the fire, fire-fighting, and evacuation procedures were
delayed because the Fire Detection System was disabled by an electrical
short circuit problem, which prevented the system from sounding an
audible fire alarm. The fire continued to intensify before it was
discovered because the short circuit problem in the Fire Detection
System was not rapidly evaluated and because the automatic Fire
Suppression System was not properly installed.''
MSHA issued a final accident investigation report for the fire at
Mine 84 on April 9, 2003. The accident occurred after the ETS was
promulgated and the requirements of the ETS were in effect. The
following gives a brief description of the Mine 84 accident. On January
6, 2003, a fire occurred in the longwall section conveyor belt entry.
At about 8:27 a.m., the carbon monoxide monitoring system gave a
warning indicating elevated concentrations of carbon monoxide along the
beltline. The warning was investigated and dense smoke was encountered
in the belt entry. Underground personnel were eventually evacuated from
the mine except for those needed to conduct fire-fighting activities.
Eventually mine rescue teams took over fire-fighting activities and
then worked continuously until they were able to contain and extinguish
the fire by January 27, 2003. MSHA issued a 104(d)(1) order for a
violation of 30 CFR 75.1502(a). MSHA determined that the operator's
approved program of instruction for firefighting equipment and
evacuation procedures was not followed due to management's failure to
immediately withdraw the 1-B longwall crew to a safe location outby the
sensor activating the alarm.
Several commenters objected to the ETS. They questioned the
foundation of the emergency temporary standard, objected that the
comment period spanned a traditional holiday, perhaps discouraging
commenters from commenting, and recommended that the standard be
revoked.
The rationale for issuing the ETS was thoroughly discussed in the
December 12, 2002 Federal Register notice (67 FR 76658). The Agency
continues to believe that the ETS was urgently needed and properly
promulgated in accordance with the Mine Act. The fact that mine
disasters are somewhat infrequent does not preclude the need to address
the serious underlying issue of how to respond to the dangers to which
miners are exposed during mine fire, explosion, and gas or water
inundation emergencies. It should be noted that the post-hearing
comment period was open until February 28, 2003, which MSHA believes
was adequate time to submit comments, even considering that the comment
period included a holiday. Although the ETS was in effect, it operated
by law as a proposed rule, and allowed for comments by all interested
parties. No party asked for a stay of the ETS, and the ETS has remained
in effect since its publication on December 12, 2002.
One commenter asked that MSHA determine the goal of the rule. The
commenter asked whether it was to ensure the fastest and safest means of evacuation, or rescue of
personnel. The goal of the rule is to initiate an appropriate response
to a mine emergency, and to cause an immediate evacuation of miners
when necessary.
Various comments were received recommending additional standards
and requirements that are outside the scope of this rulemaking. These
recommendations included the following: redesign self-contained self-
rescuers; require new or separate secondary communication systems;
require communications on all vehicles; redesign equipment batteries;
improve roof control; require additional gas detectors; expand annual
retraining to exceed eight hours; deploy atmospheric monitoring systems
mine-wide; limit shift length; require dedicated transportation
equipment; and provide continuous communications for anyone who might
respond to an emergency. These recommendations are not incorporated
into the final rule because they are outside the scope of this
rulemaking.
One commenter also urged that the rulemaking be expanded to include
underground metal and non-metal mines. Because this rulemaking deals
with underground coal mine standards, the issue is beyond the scope of
the rulemaking.
As a part of the ETS and proposed rule discussion, MSHA solicited
comments on whether the rule should be broadened to address outbursts,
massive roof falls, or other occurrences. Both affirmative and negative
comments were received. Some comments indicated that coverage was
already overly broad while others envisioned a wider scope of
conditions that should result in evacuation. On balance, based on the
rulemaking record, the Agency concludes that the conditions
incorporated by the ETS and proposed rule were appropriate and should
not be broadened at this time. Comments were considered, as well as the
mine accident histories available to MSHA.
B. Section-by-Section Discussion
Subpart P--Mine Emergencies
Section 75.1501 Emergency Evacuations
Section 75.1501 addresses mine emergency evacuations. Like the ETS
and the proposed rule, paragraph (a) of the final rule requires that
for each shift that miners work underground, there shall be in
attendance a responsible person designated by the mine operator to take
charge during mine emergencies involving a fire, explosion, or gas or
water inundation.
Under the ETS and proposed rule, the responsible person was
required to be in attendance at the mine but was not limited to an
underground or surface location. The final rule adopts the proposed
rule language. A number of commenters suggested that the responsible
person should be required to remain on the surface. Another commenter
suggested that the responsible person should be located underground.
Some commenters suggested that the responsible person should receive
continuous output information or data from any mine monitoring system.
Another commenter maintained that two responsible persons should be
required with one located on the surface and one underground.
Although it is possible that a number of persons at a mine could be
qualified for designation as the responsible person, many mines have
elected to designate the mine foreman as the responsible person. This
is an appropriate designation because the mine foreman is often the
person most knowledgeable about the mine and the one who determines
where people will be traveling. In such cases, prohibiting the foreman
from traveling underground could have a detrimental effect on mine
safety, as noted by one commenter. Conversely, requiring the mine
foreman to remain underground for the entire shift would prevent
performance of essential functions that may be required on the surface.
MSHA concludes that it is appropriate to allow the responsible person
to be either on the surface or underground.
A number of commenters requested clarification on whether the
phrase "for each shift that miners work underground'' applies to
shifts other than production shifts. The proposed rule required that a
responsible person be designated by the mine operator, and be in
attendance at the mine. This standard applies whenever there is at
least one miner working underground. The final rule adopts this
language from the proposed rule. As with the proposed rule, there is no
exemption for idle, partially-staffed, maintenance, construction, or
other non-producing shifts.
Paragraph (a) of final Sec. 75.1501, like the proposed rule, also
requires that the responsible person shall have current knowledge of
the assigned location and expected movements of miners underground, the
operation of the mine ventilation system, the location of the mine
escapeways, the mine communications system, any mine monitoring system
if used, and the mine emergency evacuation and firefighting program of
instruction. This requirement in paragraph (a) is unchanged from the
proposed rule. The purpose of this requirement is to ensure that during
mine emergencies one responsible person responds by making informed
decisions, and that mine evacuations are conducted rapidly,
efficiently, and safely. The accidents of the recent past demonstrate
the need for a responsible person to take charge during mine
emergencies.
In taking charge during an emergency, the responsible person
directs resources that may be required during the emergency and assures
that all nonessential miners are evacuated safely. In addition,
requiring that the responsible person be at the mine site during all
shifts when miners are working underground assures that no delays
result from off-site telephone calls.
A comment concerned the accessibility of the responsible person and
the maximum length of time that the responsible person could be away
from communications. Several commenters believed that continuous
communication is needed, while another commenter stated that any short
delay in communication is unacceptable. The final rule requires that
the responsible person be able to initiate and conduct an immediate
mine evacuation when necessary. This requirement would be met when the
responsible person travels in working sections or within active areas
of the mine because communication systems are readily available and
could be used by the responsible person to carry out his or her duties.
However, the need to travel in remote bleeder systems or worked-out
areas where there is no communication could create a problem because
the responsible person would be out of contact, unable to take charge
during a mine emergency, and unable to initiate and conduct an
immediate mine evacuation. In order to meet the requirements of this
rule, the mine operator may need to assign another person to travel
these areas, or redesignate another person who also meets the
requirements of Sec. 75.1501 as the responsible person. Miners must be
informed of any such change in the identity of the responsible person.
The final rule, like the proposed rule, requires that the
responsible person have current knowledge of the assigned location and
expected movements of miners underground, the operation of the mine
ventilation system, the location of the mine escapeways, the mine
communications systems, any mine monitoring system if used, and the
mine emergency evacuation and firefighting program of instruction. A
number of comments were received regarding these requirements.
Requiring that the responsible person have current knowledge of the
aforementioned elements assures that informed decisions are made during
a mine emergency. For example, having knowledge of the work areas and
the assigned locations of miners, and their expected movement during
the work shift, allows miners working in remote locations (where
electronic communication may not be readily available) to be notified
of an evacuation as soon as possible. The responsible person will know
the mine emergency evacuation and firefighting program procedures
specific to the mine so that all miners working underground can be
quickly located, warned of imminent danger, and evacuated efficiently
and safely. Mine operators should adopt procedures specific to the mine
to assure that the responsible person can quickly locate all
underground miners by knowing the assigned locations and expected
movements of miners underground.
Several commenters noted that it is impossible to track each miner
in a large mine where examiners, material haulage persons, maintenance
personnel, and belt attendants are moving continually. Other comments
indicated that the location of every miner should be known at all
times. The final rule maintains the proposed language that recognized
it would be virtually impossible to track every miner during the shift.
By using the phrase "expected movements of miners,'' it is recognized
that comprehensive tracking is impractical. Requiring miners to call-
out their every movement would be a continuous tracking task and would
unnecessarily occupy the telephone system that might be needed for
safety or emergency purposes. It is reasonable, however, for the
responsible person to know the assigned work locations and expected
movements of miners. As maintenance personnel and material haulage
personnel travel within the mine, they ordinarily will do so along main
haulageways where others traveling the same haulageways can readily
locate them. Similarly, although the responsible person may not know
the precise location of examiners or belt attendants, knowing their
assigned locations and expected movements will permit these persons to
be located quickly.
Several comments were received recommending that the personal
emergency device (PED) become a requirement of the final rule. A PED is
a paging device that is part of a communication system that miners can
wear. The system generally consists of a transmitter capable of sending
communications through the rock strata that can be received by
individual miners through their PEDs. This system is currently used at
a number of U.S. underground coal mines and has also been deployed at
mines in other countries. The PED system was used successfully in the
mine evacuation process at the Willow Creek mine during the July 2000
explosion accident and during an accident in November 1998, also at
Willow Creek. MSHA has not made the PED system a requirement of the
final rule. MSHA believes that the PED system is generally effective
and encourages its use. However, since technology is constantly
changing, newer systems that may be as, or more, effective than the PED
may be developed. One commenter noted that it should not be necessary
to track miners equipped with a PED unit since they could be contacted
regardless of their location. The Agency agrees that there is less of a
burden to locate miners equipped with a PED, recognizing that they can
generally be contacted. However, the responsible person must be aware
of their assigned work locations and expected movements during the
shift as well to assure all miners can be evacuated in an emergency.
In addition, the requirement in the proposed rule that the
responsible person must have "current knowledge'' about various mining
systems in use at the mine resulted in a number of comments. Several
commenters indicated that it would be impossible for any miner to have
comprehensive knowledge of each ventilation control, precise telephone
locations, and other precise details. A few commenters recommended
substituting the term "general knowledge'' for "current knowledge.''
The final rule retains the requirement for "current knowledge.''
"Current knowledge'' is intended to mean that the responsible person
have up-to-date information regarding revisions to the escapeway
routes, significant ventilation changes such as reversing air
directions, adding shafts, and establishing new air splits, and other
significant changes that would be important during an emergency. An
extraordinary level of knowledge is not intended. A typical mine would
have a number of miners able to meet the requirement perhaps including
the mine foreman, assistant mine foremen, some examiners, and some
section foremen. Others, such as safety department personnel,
atmospheric monitoring system operators, or miners who regularly travel
throughout the mine and are familiar with the approved plans, may also
meet this requirement. However, clerical personnel or property guards
ordinarily will not meet the requirement.
One commenter suggested that the responsible person should be
required to travel underground on a regular basis in order to have
"current knowledge.'' MSHA has not included a minimal time for
required underground travel. However, MSHA expects that some
underground travel will normally occur for those miners meeting the
requirements for a responsible person. An exception might include an
experienced mine foreman who is temporarily working on the surface due
to a recent injury and also has requisite knowledge of the current
underground mine environment and operations defined under Sec.
75.1501.
Some commenters believed there was an inherent conflict between the
responsible person required by proposed Sec. 75.1501 and the
responsible persons required by existing standards Sec. 75.310,
Installation of main mine fans, Sec. 75.311, Main mine fan operation,
and Sec. 75.1600, Communications. The knowledge required by the
responsible person to comply with Sec. 75.1501(a) is not analogous to
that required by Sec. 75.1600 for a responsible person on the surface
to answer telephone calls. Similarly, Sec. Sec. 75.310 and 75.311
require a responsible person on the surface, with underground
communication, to always be within sight or sound of the main mine fan
alarm when miners are underground. The responsibility and level of
knowledge required of these persons is less than the requirement under
final Sec. 75.1501(a). The fact that several distinct functions
require responsible persons does not indicate a conflict. The
responsible person defined by final paragraph (a) could meet the
requirements to be the responsible person under Sec. Sec. 75.310,
75.311, or 75.1600, if on the surface. However, the reverse is not
necessarily true. These functions are separate and the requirements are
distinct. There is no conflict.
Some commenters were unsure whether the standard would apply to
mine rescue teams and mine rescue and recovery efforts, and how the
standard would affect decisions of upper mine management during
emergency operations. The standard is intended to facilitate the
immediate evacuation of the miners at the onset of fire, explosion, and
gas or water inundation mine emergencies which present an imminent
danger to miners, and to initiate a response when a response is
appropriate. Once the miners have been evacuated, the standard has no
further application during rescue/recovery operations, mine rescue team
activities, or emergency operations being orchestrated by upper mine
management. The rule would next apply when miners resume work
underground, whether that be when the mine returns to normal operation,
or when miners are performing underground construction or
rehabilitation after the immediate mine emergency has ended.
Paragraph (b) of Sec. 75.1501 of the final rule requires that the
responsible person initiate and conduct an immediate mine evacuation
when there is a mine emergency that presents an imminent danger to
miners due to fire, explosion, or gas or water inundation. The rule
also requires that only properly trained and equipped persons essential
to respond to the mine emergency may remain underground. This paragraph
is unchanged from the proposed rule and ETS.
Several comments were received questioning whether a mine-wide
evacuation is always required due to any occurrence of fire, explosion,
or water or gas inundation. MSHA's final rule concludes that evacuation
is required for mine emergencies that present an imminent danger to
miners due to fire, explosion, or gas or water inundation. MSHA has
concluded that miners can be exposed to serious danger when they remain
underground or improperly re-enter affected mine areas during mine
emergencies that present an imminent danger due to fire, explosion, gas
or water inundation. However, not every imminent danger results in a
mine-wide evacuation under this rule. Some commenters urged that the
rule be reworded, believing that any underground imminent danger would
trigger a full mine-wide evacuation. MSHA does not agree. An imminent
danger that affects a limited area, such as a section, may result in
withdrawal from the affected area, but would not necessarily be a mine
emergency requiring mine-wide evacuation.
Several commenters suggested that a definition of imminent danger
should be included in the rule. Section 3(j) of the Mine Act already
defines an imminent danger, making further definitions unnecessary. The
concept of imminent danger has existed since 1969 and is well
understood by mine operators, miners, and others in the mining
community. The term "imminent danger'' is defined in the Mine Act,
section 3(j), as "the existence of any condition or practice in a coal
or other mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can be
abated.'' This definition is well known and provides readily
understandable criteria.
MSHA agrees with the commenters who stated that not every mine
fire, explosion, or gas or water inundation hazard may result in a mine
emergency requiring a mine-wide evacuation. For example, unplanned mine
fires not extinguished within 30 minutes of discovery are reportable to
MSHA under 30 CFR part 50. Such fires may not present an imminent
danger to miners and, therefore, may not constitute a mine emergency
under this final rule. It is when fire, explosion, or gas or water
inundations present an imminent danger to miners that MSHA expects that
an immediate mine evacuation be initiated. For example, a gas or water
inundation of unknown potential, or an explosion that raises the
question of unknown damage to critical ventilation controls or
interrupted ventilation, should result in a mine-wide evacuation.
However, a small-scale fire at an electrical connection, while it may
be a local emergency, may not immediately be a mine emergency that
presents an imminent danger to all miners underground.
One commenter questioned whether accumulations of methane at
elevated concentrations would be considered a gas inundation such that
a mine-wide evacuation would be required. An accumulation of methane in
a working place, such as the face, or the conveyor belt haulageway, is
not a gas inundation. In general, an accumulation of methane results
from inadequate ventilation or airflow. A gas inundation can occur even
when there is adequate ventilation or airflow and is not limited to
only methane gas. Current standards, specified in Sec. 75.323, Actions
for excessive methane, specify actions to be taken when methane above
certain levels is found in a working place or return aircourses.
Similarly, a commenter questioned whether a small amount of water
entering a mine might be considered an inundation. Typically, it would
not. In most cases, a broken water pipe spilling into the mine, or
normal mine water accumulations, would not be considered an inundation
requiring an emergency evacuation. However, if water inflows blocked
main aircourses or bleeder systems, a mine emergency requiring
evacuation could result.
One commenter questioned whether an evacuation could ever be
interrupted once started. In the case where an evacuation has commenced
due to a false alarm, or the emergency comes under control very
quickly, the responsible person could interrupt the evacuation.
Several commenters believed that the ETS fosters an atmosphere of
"every man for himself'' and that chaotic unorganized evacuations will
result. Other commenters believed that the rule encourages evacuation
as the first reaction to a problem. To the contrary, the rule promotes
organized evacuations and controlled responses. By requiring a
responsible person to take charge and by improving plans and training,
MSHA believes that timely and orderly evacuations will result.
Several commenters suggested that the word "conduct'' found in
proposed Sec. 75.1501(b) should be deleted from the phrase "the
responsible person shall initiate and conduct an immediate mine
evacuation. * * *'' These commenters suggested that the responsible
person should only be required to initiate the evacuation. Some
commenters believed that the responsible person was required to make
all communication contacts and perform all other duties without any
assistance. The responsible person can, of course, obtain whatever
assistance is needed to contact and evacuate miners safely and quickly.
The final rule retains the phrase "initiate and conduct.'' "Conduct''
is used to assure that the responsible person remains in control during
the evacuation and remains responsible for assuring that the evacuation
actually occurs. "Conduct'' is not used to mean or imply that the
responsible person is prohibited from obtaining assistance during the
emergency. The responsible person should utilize any resources needed
for evacuation and should obtain assistance as appropriate.
Other commenters believed that the rule prohibits any involvement
of upper mine management and prohibits contact with off-site
management. The final rule, like the proposed rule, is constructed to
assure that an evacuation order by the responsible person would not be
usurped and to clarify that concurrence or approval by off-site
management is not necessary, as it could result in a needless delay.
This does not, however, prohibit communication with upper management
located on or off-site. Neither does the rule prohibit upper management
from organizing or deploying a mine rescue team for recovery efforts.
As discussed elsewhere in this preamble, the final rule is intended to
address evacuation of miners where a mine emergency exists that
presents an imminent danger, and an initial response--if a response is
warranted. However, the rule does not
address mine rescue team deployment and mine rescue and recovery
efforts in the aftermath of an emergency evacuation, as these
activities could be more appropriately controlled by other mine
officials, and other provisions in the Mine Act. These issues are
beyond the scope of this rulemaking.
Numerous comments were received regarding the phrase contained in
proposed Sec. 75.1501(b), "properly trained and equipped.'' This
phrase is retained in the final rule. Stated in full, the final
paragraph requires that "[o]nly properly trained and equipped persons
essential to respond to the mine emergency may remain underground.''
Some commenters thought the phrase would limit any response to mine
rescue teams. Other commenters stated that waiting for mine rescue
teams would allow even small fires to propagate, creating larger,
unnecessary hazards. The reason for this requirement is derived from
the circumstances surrounding the Jim Walter Resources No. 5 mine
accident where a party of miners was believed to have entered 4
Section, where the air quality was undetermined, without gas detectors.
The requirement is intended to prevent similar occurrences.
The final rule does not limit responses to mine rescue teams and
does not prohibit mine emergency responses. The final rule does,
however, require that persons responding to mine emergencies be
equipped with appropriate equipment and trained in its use. Several
commenters requested that a definition for "properly trained and
equipped'' be included in the rule. MSHA believes that a definition is
not necessary, and could hamper flexibility on the part of mine
operators to respond to rapidly changing or different emergency
situations. While it is impractical to list every possible emergency
scenario, the equipment required should be apparent to those directing
or engaged in any response, dependent on the nature of the emergency
and the particular conditions. As an example, where miners are entering
an area where ventilation controls have been destroyed or the air
quality is unknown, responders should be equipped with gas detectors
and should know how to operate the detectors. Miners responding to
fight a fire should have gas detectors as well as firefighting
equipment--and should know how to use the equipment. Otherwise, the
responders could be unnecessarily exposed to hazards and the equipment
could have limited effect.
One commenter suggested that each miner participating in a response
should be provided with equipment--such as a gas detector. Other
comments suggested a clarification that only one person in a response
party, probably the leader, should be required to have the needed
equipment. The Agency concludes that, in the gas detector example,
sufficient gas detectors should be provided so that the group can
adequately monitor the atmosphere to which they are exposed. The size
of the group and the extent to which they are close together or
dispersed will affect the number of gas detectors needed. In general,
the quantity of equipment must be at least sufficient to protect miners
from the reasonably anticipated hazards.
Section 75.1501(c) of the final rule requires that the mine
operator instruct all miners about the identity of the responsible
person designated by the operator for their workshift. The mine
operator shall inform miners before the start of their workshift if the
identity of the responsible person changes. The ETS also included an
implementation date that has been deleted from this final rule since it
is no longer necessary. Except for the elimination of the
implementation date, this paragraph of the final rule remains unchanged
from the ETS and the proposed rule.
A number of comments were submitted in response to proposed
paragraph (c). A typical comment was that the responsible person should
be identified by title--rather than by name. It is acceptable to
develop plans and procedures where the responsible person is identified
by title, so long as miners know the identity of the responsible
person. A mechanism must be in place to inform the miners of the
identity of the responsible person for their workshift. Should an
emergency occur, a miner must be able to page a specific person rather
than paging for a mine foreman or some other title.
Miners can be informed of the identity of the responsible person
for their workshift in a number of ways. A verbal announcement can be
made before traveling underground, a prominent chalkboard at the check-
in/check-out board could indicate the name of the responsible person,
or other systems could be used. One commenter believed that if MSHA
asked a miner to name the responsible person, an incorrect response
would result in a citation. The comment indicated that the memory of a
miner is outside the control of the mine operator. MSHA does not
anticipate using such a quiz for citation purposes. When it becomes
apparent that several miners are unaware of who is designated the
responsible person or how the notification system works, the system and
its effectiveness should be reviewed. The rule recognizes that in many
cases, after the responsible person is designated and the miners
informed, the responsible person's identity might not change for
extended periods of time.
Several commenters asked how miners would be informed of any
unexpected redesignation of the responsible person during the shift. To
meet the requirement and objective of the rule, miners must be informed
of any unexpected change in the identity of the responsible person. One
way to inform the miners of the change would be to contact the
underground supervisors, instructing them to inform their crews. It is
understood that every miner cannot be instantly informed and that
miners traveling or working in remote locations may not be immediately
informed. However, reasonable efforts must be made for supervisors to
inform underground miners or their work crews when an unexpected change
in the responsible person occurs during the shift.
Paragraph (d) of final Sec. 75.1501 provides that nothing in this
section shall be construed to restrict the ability of other persons in
the mine, in addition to the responsible person, to warn of an imminent
danger that warrants evacuation. This paragraph is unchanged from the
ETS and the proposed rule. This provision recognizes that there will be
mine emergencies which present an imminent danger to miners due to
fire, explosion, or gas or water inundation warranting a warning by
someone other than the responsible person under Sec. 75.1501(a). For
example, at the Quecreek Mine inundation accident that occurred July
24, 2002, miners from the affected section rapidly warned miners in the
other working section of a water inundation, enabling the miners in the
other working section to quickly escape the mine unharmed. These
actions are consistent with the approach of final paragraph (d) of
Sec. 75.1501 that recognizes that any person may warn others of an
imminent danger which warrants evacuation. Had any delays occurred at
Quecreek in warning the miners, tragic results might have ensued. This
paragraph clarifies that obtaining approval or concurrence from the
responsible person is not required when circumstances warrant.
A commenter suggested MSHA incorporate the Occupational Safety and
Health Administration's (OSHA's) 29 CFR 1920.120 titled Hazardous waste
operations and emergency response into MSHA's final rule. OSHA's rule
provides for defining an Incident Command System, a chain of command,
substance specific control plans, quality control and assessment plans,
and other similar structured activities. MSHA has considered this
approach and believes that the approach adopted in the final rule is
appropriate for the mining industry. Mine emergency and firefighting
programs developed under Sec. 75.1502 may include assigned personnel
for specific tasks. Mine rescue programs have demonstrated that their
use is appropriate in addressing unique mine environments.
Section 75.1502 Mine Emergency Evacuation and Firefighting Program of
Instruction
Final Sec. 75.1502, Mine emergency evacuation and firefighting
program of instruction, was derived from Sec. 75.1101-23, Program of
instruction; location and use of fire fighting equipment; location of
escapeways, exits and routes of travel; evacuation procedures; fire
drills. The program of instruction is also referred to as the emergency
evacuation plan.
Under the ETS and proposed rule, operators were to immediately
revise existing firefighting and evacuation plans, retrain miners, and
submit the revised plan to MSHA for review and approval. This process
was a departure from the normal plan approval process whereby MSHA
approval is required prior to implementation. The ETS implementation
dates have passed, and the dates listed in the ETS are deleted from the
final rule. Plans previously revised to comply with the ETS should need
no further revision to comply with the final rule.
Final paragraph Sec. 75.1502(a) explicitly requires underground
coal mine operators to "adopt and follow'' an approved mine emergency
evacuation and firefighting program of instruction. The addition of the
phrase "and follow'' is a change from the ETS and the proposed rule,
which stated that underground coal mine operators must "adopt'' a
program of instruction. Despite the lack of the phrase "and follow''
in the ETS and the proposed rule, it has been MSHA's intent that mine
operators follow their approved plans in the event of a mine emergency.
The concurrent promulgation of Sec. 75.1501 and Sec. 75.1502 at the
proposed rule stage demonstrates MSHA's intent that the standards
function in unison. For example, under Sec. 75.1501, the responsible
person is required to initiate and conduct an immediate mine evacuation
in the event that a mine emergency due to fire, explosion, or gas or
water inundation presents an imminent danger to miners. The mine
emergency evacuation and firefighting program of instruction would
serve little purpose if the responsible person did not initiate and
conduct the mine evacuation in accordance with the program of
instruction. There would be little, if any, benefit to miners' safety
if the responsible person were to initiate and conduct an
uncoordinated, disorganized evacuation. In fact, no program of
instruction would be necessary for such an evacuation. Although Sec.
75.1501 and Sec. 75.1502 were always intended to operate in an
integrated manner, the agency is aware that the intent is better
expressed by use of the phrase "adopt and follow.'' The explicit
requirement that an operator "follow'' the approved program of
instruction once it is adopted is reflected in final Sec. 75.1502(a).
This requirement is consistent with MSHA's practice under existing
Sec. 75.370, Mine ventilation plan; submission and approval, which
requires mine operators to follow their approved ventilation plan once
developed.
As with other mine plans, subsequent changes or revisions may not
be implemented at the mine until approved by the District Manager of
the Coal Mine Safety and Health District in which the mine is located
and the affected miners have been instructed in the revised provisions.
Paragraph (a) of Sec. 75.1502 of the final rule adopts the
language of the ETS and proposed rule with only minor changes that
clarify the rule's intent. Under paragraph (a), MSHA retains the
requirement of the ETS and the proposed rule that the existing program
of instruction include the proper evacuation procedures in the event of
a mine emergency. In addition, final paragraph (a) of Sec. 75.1502
retains the requirements of former Sec. 75.1101-23(a), the ETS, and
the proposed rule, that the program of instruction include procedures
to be followed regarding the location and use of firefighting
equipment, location of escapeways, exits, and routes of travel to the
surface.
MSHA expects that the plan must, at a minimum, cover the types of
mine emergencies presenting an imminent danger to miners due to fire,
explosion, or gas or water inundation. Mine operators may choose to
cover in their plan other types of mine emergencies when evacuations
would be appropriate as well.
A few commenters stated their belief that the purpose of the rule
was to ensure that MSHA could second-guess decisions made during
emergencies and issue citations. Typically, these commenters discussed
the 2000 Willow Creek explosions (previously discussed in this
preamble) and the January 21, 1986 fire at Jim Walter Resources No. 3
mine. At the Jim Walter Resources No. 3 mine, a fire occurred along the
No. 1 longwall section face. The fire was apparently started by a
cutting torch being used to dismantle the longwall conveyor. Two miners
were injured as a result of the fire. Efforts to control the fire were
unsuccessful and all miners were withdrawn from the mine. On January
22, 1986, it was decided to partially seal the mine. The seals were
completed on February 16, 1986. In both cases, miners remained
underground in hazardous conditions in an effort to control mine fires,
despite the hazard of a major explosion. MSHA concluded that the Sec.
75.1101-23 plan was not violated at either Willow Creek or Jim Walter
No. 3. Similarly, under the final rule, MSHA will assess the overall
evacuation response and actions taken to protect the safety of the
miners, recognizing that an undesirable outcome is not necessarily a
violation of the provisions of the mine emergency and firefighting
program of instruction. MSHA continues to believe that increased
awareness of responsibility for mine evacuations, improved plans and
training will help eliminate fatal and non-fatal injuries during mine
emergencies.
Final paragraphs (1) through (4) of paragraph (a), specify general
topics to be developed and included in the program of instruction or
plan. These include: (1) Mine emergency evacuation for mine emergencies
presenting an imminent danger to miners due to fire, explosion, or gas
or water inundation; (2) Evacuation of all miners not required for a
mine emergency response; (3) Rapid assembly and transportation of
necessary miners, fire suppression equipment, and rescue apparatus to
the scene of the mine emergency; and, (4) Operation of the fire
suppression equipment available in the mine. These paragraphs are
unchanged from the existing ETS and proposed rule. MSHA will publish,
and make available at its Web site, a model plan as an example. Mine
operators should develop plans that are suitable to the particular
conditions existing at their mine. For example, a mine not employing an
atmospheric monitoring system would not discuss how an AMS would be
integrated into the plan. Similarly, a mine that has deployed a
Personal Emergency Device (PED) system should include a discussion of
how the system is integrated into its procedures for notification and
evacuation.
As required under final paragraph (a)(1), the plan requires that
all miners on all shifts be acquainted with procedures for mine
emergency evacuation for mine emergencies that present an imminent danger to
miners due to fire, explosion, or gas or water inundation. The plan
should indicate that other occurrences might also have the potential to
result in a mine emergency causing the plan to be implemented. An
example would be a massive roof fall near a primary ventilation shaft
that short-circuits and interrupts mine ventilation. The plan should
emphasize that miners exposed to an imminent danger be safely evacuated
while ensuring that only appropriate responses are undertaken.
One commenter recommended that the word "endanger'' in proposed
paragraph (a)(1) of Sec. 75.1502 be replaced with wording consistent
with Sec. 75.1501. MSHA agrees that ambiguity would be reduced by the
use of consistent wording, and has replaced the word with the phrase
"present an imminent danger to miners'' in the final rule.
Paragraph (a)(2) requires that the plan explicitly instruct all
miners not required for a mine emergency response to evacuate promptly.
This paragraph is unchanged from the ETS and proposed rule. The plan
should discuss the specific processes to be used at the mine to notify
all miners that an evacuation is necessary. If a single communication
system is used, the plan should detail procedures to be followed in the
event of a communication system failure. Alternatively, if a secondary
communication system is used, the plan should identify the system and
state how the system would be used in an emergency evacuation. If the
mine has deployed a PED system to all or certain miners, the plan
should discuss how information would be distributed to ensure that all
miners are notified of the need to evacuate. The plan should specify
and discuss assembly areas on sections and other work locations along
with preparations and assignments to be performed. For example, the
plan could discuss how the section mechanic might be assigned to
deenergize power when preparing to evacuate. The plan should discuss
how local firefighting efforts integrate into the plan.
Several commenters noted that a timely evacuation would not be
possible or practicable at a large mine unless transportation equipment
was continuously maintained at working sections while miners were
working. The approved mine emergency and firefighting plan should
specify how transportation equipment is to be deployed and distributed
within the mine. Plans should specify that transportation equipment be
maintained on working sections when miners are working, and the
conditions under which sufficient transportation equipment will not be
maintained at working sections. One commenter stated that requiring
transportation to be maintained at the working section could prevent
evacuation of a single injured miner in need of medical attention,
since the mantrip would be required to remain at the section. The
Agency agrees that there could be instances when the transportation
vehicle would not be available. If transportation is not available at
the working section, contingencies should be described in the mine
emergency and firefighting plan. The final rule allows mine operators
sufficient flexibility to develop these aspects of the plan according
to the needs of each individual mine.
Final paragraph (a)(3) is unchanged from the ETS and proposed rule.
It requires that the plan address the rapid assembly and transportation
of the necessary miners, fire suppression equipment, and rescue
apparatus to the scene of the mine emergency. The plan should discuss
how persons responding to an emergency will be transported. It should
also discuss the availability and location of fire suppression
equipment and rescue apparatus that will be needed at the scene of the
emergency. MSHA received a comment stating that retreating miners,
especially in a track mine, could hinder the responsible person's
efforts to direct emergency supplies or transportation to the site of
the mine emergency. Also a commenter stated that the rule does not
address having some means of transportation to respond to a mine
emergency always at hand. These issues must be considered during
development of a plan to assure that miners can be efficiently
evacuated, even while a response is implemented, if a response is
appropriate.
Another commenter wanted clarification on whether equipment
assembly must be included during drills and, considering that most
mines are covered by off-site mine rescue teams, whether these teams
would need to be activated as a part of a training drill. MSHA responds
by stating that existing MSHA-approved plans already discussed, in
detail, the requirements for use and location of firefighting
equipment. MSHA has not issued a detailed policy on the inclusion of
equipment assembly or contacting off-site rescue teams in mine
emergency evacuation drills. However, during the drills it would be
appropriate for mine employees to review procedures for contacting off-
site rescue teams and for emergency response personnel to make sure
phone numbers are in working order. Locating and simulating equipment
assembly would also be appropriate.
Paragraph (a)(4) of the final rule requires a specific plan
designed to acquaint miners on all shifts with procedures for operating
the fire suppression equipment available in the mine. The plan should
indicate how storage areas will be marked and how equipment will be
maintained in operational condition. This requirement assumes that
outby miners would also be fully acquainted with emergency procedures
to be followed and equipment to be used. This paragraph was adopted
from previous Sec. 75.1101-23 and remains unchanged from the ETS and
proposed rule. It retains the same requirements for procedures for the
operation of fire suppression equipment. No comments were received on
this paragraph.
Final paragraph Sec. 75.1502(b), including paragraphs (b)(1)
through (b)(3), sets forth requirements for each operator of an
underground coal mine to ensure that certain specified miners are
proficient in the use of, and know the location of, fire suppression
equipment. Each of these paragraphs was derived from, and retain the
same requirements as, previous Sec. 75.1101-23(b), the ETS, and the
proposed rule.
Final paragraph (b)(1) requires the mine operator to ensure that at
least two miners in each working section on each production shift are
proficient in the use of all fire suppression equipment available on
such working section, and know the location of such fire suppression
equipment.
One commenter requested that paragraph (b)(1) require every miner
to be proficient in the use of fire suppression equipment and know the
location of firefighting equipment. MSHA believes that final (b)(1) is
appropriate because a working section is a relatively limited area and
therefore two miners knowing where to locate the equipment, and being
proficient in the use of the equipment, would be sufficient. In
addition, the mine emergency evacuation program of instruction will
require other miners to be assigned to duties such as de-energizing
electrical power to the section, ensuring transportation is available
should evacuation be necessary, locating water hoses, gathering fire
extinguishers and rock dust, and maintaining telephone contact with
surface personnel. This requirement recognizes that there will be a
coordinated response among miners performing various tasks, including
the two miners proficient in using the fire suppression equipment.
This requirement is unchanged from the proposed rule and ETS.
Final paragraph (b)(2) requires the mine operator to ensure that
each operator of attended equipment specified in Sec. 75.1107-1(c)(1),
and each miner assigned to perform job duties at the job site in the
direct line of sight of attended equipment as described in Sec.
75.1107-1(c)(2), is proficient in the use of fire suppression devices
installed on such attended equipment. This requirement recognizes that
the class of equipment referenced in this paragraph has been determined
to warrant fire suppression devices and attendance. As reflected in
final (b)(2), if attended equipment catches fire, all miners operating
such equipment and performing job duties in the direct line of sight of
such equipment will have the requisite knowledge to suppress or
extinguish the fire. This requirement is unchanged from the proposed
rule and ETS.
Final paragraph (b)(3) requires that the shift foreman and at least
one miner for every five miners working underground on a maintenance
shift are proficient in the use of fire suppression equipment available
in the mine, and know the location of such fire suppression equipment.
The requirement found in paragraph (b)(3) recognizes that a mine
emergency due to fire may also occur on a maintenance shift where the
locations of the miners may be more dispersed. This situation would
differ from a production shift where there is generally a set number of
miners near the face area. Therefore, rather than requiring the miners
to be proficient within a geographical area of the mine, this provision
focuses on ensuring that an adequate number of miners know the location
of firefighting equipment and are proficient in using the fire
suppression equipment.
One commenter requested that paragraph (b)(3) require every miner
to be proficient in the use of fire suppression equipment and know the
location of firefighting equipment. MSHA has determined that miners
will be adequately protected by the requirement that the shift foreman
and at least one miner for every five miners working underground on a
maintenance shift be proficient in the use of fire suppression
equipment. While the shift foreman will move throughout the mine,
requiring at least one miner for every five to be proficient in the use
of fire suppression equipment, will approximate the requirement in
(b)(1). As in final paragraph (b)(1), MSHA recognizes that the mine
emergency evacuation program of instruction will require other miners
to be assigned to various other duties necessary to extinguish the
fire. This requirement recognizes that there will be a coordinated
response among miners performing various tasks, including the shift
foreman and one miner for every five proficient in using the fire
suppression equipment. This requirement is unchanged from the proposed
rule and ETS.
Paragraph (c) requires each operator of an underground coal mine to
require all miners to participate in mine emergency evacuation drills,
which shall be held at periods of time so as to ensure that all miners
participate in such drills at intervals of not more than 90 days. This
paragraph was derived from previous Sec. 75.1101-23, and the final
rule is unchanged from the ETS and the proposed rule. The final rule
differs from previous Sec. 75.1101-23 to the extent that drills
conducted in accordance with the final rule will simulate actions
required in mine emergency evacuations, whereas previous Sec. 75.1101-
23 only required a simulation of actions required in the event of
emergencies due to fire. One commenter suggested that a grace period be
provided to accommodate for any miners who may have been absent on the
day of the drill. This comment was not adopted in the final rule
because MSHA believes that the performance of drills every 90 days is
essential to maintain miners' readiness to act, and familiarity with
measures to be taken in the event of a mine emergency. Mine operators
may exercise flexibility in meeting the requirement of this provision.
For example, a mine operator may wish to conduct a drill only when he
or she is certain that there is 100 per cent section attendance on a
given shift, so long as all miners participate at intervals not
exceeding 90 days.
Final paragraph (c)(1) requires that the mine operator certify by
signature and date that the mine emergency evacuation drills were held
in accordance with the requirements of this section. This paragraph is
derived from former Sec. 75.1101-23. Certifications shall be kept at
the mine for one year and made available on request to an authorized
representative of the Secretary and to the representative of the
miners. One comment noted that, unlike most other recordkeeping
requirements, this paragraph did not expressly provide the miners and
the representatives of miners an opportunity to inspect the record.
MSHA agrees that the record should be made available to the
representatives of the miners. Accordingly, the final rule is revised
to include a provision that requires the records be available on
request to the representatives of miners. The final rule adds a new
requirement to keep the evacuation drill certifications at the mine for
one year. This language is consistent with other recordkeeping
requirements in the standards and ensures that records are retained for
a sufficient amount of time to verify that the mine emergency
evacuation drills were properly conducted in accordance with Sec.
75.1501(c).
Paragraph (c)(2) requires that for purposes of paragraph (c), a
mine emergency evacuation drill must consist of a simulation of the
actions required by the approved mine emergency evacuation and
firefighting plan described in paragraph (a)(1) through (4) of this
section. The proposed rule contained a printing error that was
corrected by the Federal Register on December 26, 2002 (67 FR 78713).
However, the preamble to the proposed rule correctly noted that
paragraph (c) of Sec. 75.1502 "essentially retains the same
requirements as existing Sec. 75.1101-23(c). * * *'' (67 FR 76662.)
The final paragraph (c) of Sec. 75.1502 is unchanged from the ETS and
proposed rule.
Several comments were received on proposed paragraph (c)(2).
Commenters requested guidance on the content of mine emergency
evacuation drills. Requirements for mine emergency evacuation drills
defined in Sec. 75.1502(a)(1), as well as paragraphs (a)(2), (a)(3),
and (a)(4), are explicitly referenced in this section.
Several commenters asked for clarification of what would constitute
a "simulation.'' A "simulation'' means a mock fire or emergency that
results in firefighting actions and mine evacuation. Some mine
operators currently conduct simulations using artificial smoke to
imitate a fire at various locations. Other operators believe that a
discussion during safety meetings is sufficient to meet this
requirement, noting that the contents of the MSHA Program Policy Manual
lists "group discussions'' as one type of training for a fire drill.
Although group discussions are listed in the manual as one possible
element of a drill, discussions during safety meetings alone do not
satisfy the requirement to conduct a drill consisting of a simulation
of the actions required by the mine emergency evacuation plan.
Demonstrations, discussions, and task-oriented training may be included
as part of a comprehensive drill.
Several commenters suggested that guidance was needed on the
contents of mine emergency evacuation drills. There are two aspects to
the drills: firefighting and evacuation. Both should
be simulated at working sections and regular working stations.
Operators should simulate fires and other emergencies at various
locations and incorporate communication and notification as a part of
the drill. The purpose of the drill is to prepare miners for fires,
explosions, or gas or water inundations in their work locations or
possible emergency responses, and to prepare them for evacuation due to
emergencies in other parts of the mine. As suggested by some
commenters, to the extent practicable, drills should be unannounced and
the responsible person should be involved in the drills. Firefighting
simulations should result in miners executing their assignments by
retrieving material and equipment, assigned miners should retrieve fire
extinguishers, hoses, and rock dust--although fire extinguishers and
foam generators need not be expended. Miners assigned to remove section
power should execute those assignments. Miners assigned to prepare
mantrip vehicles and self-contained self-rescuers should make those
preparations. The responsible person should conduct and coordinate mine
emergency evacuation drills. Any deficiencies identified in locating or
notifying all underground miners should be used to improve the system.
Operators may concurrently conduct escapeway drills required under
existing Sec. 75.383 with these mine emergency evacuation and
firefighting drills.
MSHA agrees with a comment submitted that the outcomes of mine
emergency evacuation drills should be reviewed by mine personnel in
order to improve the emergency evacuation plan. This is a common sense
approach that MSHA believes mine operators will follow and
consequently, MSHA has not included it in the rule.
Several commenters believed that drills required by paragraph
(c)(2) did not apply to all miners, or to all shifts. This is not the
case. All miners on all shifts are to participate in the required
drills at not more than 90-day intervals. There is no exemption for
idle, partially-staffed, maintenance, construction, or other non-
producing shifts. A similar comment questioned whether the evacuation
plan and drills applied to contractors. There is no exemption for
contractors.
Another commenter believed that an evacuation resulting from a
false alarm could not be considered a required drill. Drills can be
conducted at any time provided drills occur at intervals of not more
than 90 days. Accordingly, an unplanned drill (for example, due to a
false alarm) meeting the elements discussed in Sec. 75.1502(a)(1)
through (a)(4) above can be accepted as a required drill. One commenter
suggested that a drill should be acceptable if performed anytime during
established 90-day cycle periods. This approach has not been adopted
because under this approach six months could elapse between drills, and
this length of time would undermine the goal of maintaining appropriate
familiarity with firefighting and evacuation procedures. The final rule
requires drills at intervals of not more than 90 days, as did the ETS
and the proposed rule.
Some commenters stated that Sec. 75.383, Escapeway maps and
drills, should be moved from its current location and assimilated into
final Sec. 75.1502(c). Sections 75.380 through 75.383 pertain to
escapeway requirements, escapeway maps, mechanical escape facilities,
and drills. After considering this comment, MSHA has decided not to
relocate escapeway drill requirements to this section. Although
related, retaining the requirements for escapeway maps and drills in
the current location will allow miners and mine operators to easily
find and review all requirements related to escapeways in a common
place.
Another commenter requested that MSHA reference ANSI Z490.1
Criteria for Accepted Practices in Safety, Health, and Environmental
Training. MSHA has not included this reference in the final rule.
Training issues are appropriately addressed in the rule in existing
part 48 training requirements. Part 48 is the appropriate and clearly
understood mechanism for training miners in response to mine
emergencies.
Revisions to Part 48 Training and Retraining of Miners
MSHA is revising its existing training regulation in 30 CFR part
48.8, Annual refresher training of miners; minimum courses of
instruction; hours of instruction to specifically include annual
refresher training of miners for mine emergency evacuation and
firefighting plans. In doing so, the language in the proposed rule is
adopted without change. The training of new and experienced miners
under part 48, however, does not need to be revised. Existing Sec.
48.5(b)(5) provides for training new miners regarding emergency
evacuation and firefighting plans and existing Sec. 48.6(b)(5)
provides for training experienced miners regarding emergency evacuation
and firefighting plans.
Subpart A of 30 CFR part 48 prescribes requirements for submitting
and obtaining MSHA approval of operator-administered programs for
training and retraining underground miners. Each mine must have an
approved training program for training new miners and newly-employed
experienced miners, as well as training miners for new tasks and
providing annual refresher training.
The existing training requirements under Sec. 48.5, Training of
new miners; minimum courses of instruction; hours of instruction, and
under Sec. 48.6, Experienced miner training, do not need to be revised
because emergency evacuation and firefighting training are provided
under those existing sections. Annual refresher training under existing
Sec. 48.8, however, does not cover emergency evacuation or
firefighting training. Therefore, Sec. 48.8 is revised by this final
rule to include a requirement that the annual refresher training
include the mine emergency evacuation and firefighting plan. This
training will acquaint all underground coal miners with a review of the
emergency evacuation and firefighting plans in effect at the mine.
As with the proposed rule, all training required by the final rule
will be delivered by an MSHA-approved instructor as required by part
48. The required training covering emergency evacuations falls under
part 48. Also, documentation that training has taken place shall be
kept at the mine and made available on request to an authorized
representative of the Secretary and to the representative of the
miners.
This final rule does not reduce the safety protection afforded
miners under former Sec. 75.1101-23. In fact, miner safety is enhanced
because the final rule: provides for training all miners in mine
emergencies which present an imminent danger to miners from explosions
and gas or water inundations, not just mine fires; and requires miners
to receive annual refresher training. This provision eliminates
duplicate provisions and consolidates the training requirements under
part 48. This modification of the training requirements under former
Sec. 75.1101-23 does not represent a reduction in safety to miners
because the training requirements of Sec. 75.1101-23 are incorporated
in new Sec. 75.1502 and the revised and existing sections of part 48.
C. Feasibility
We have determined that the requirements of the final rule are both
technologically and economically feasible.
1. Technological Feasibility
MSHA believes that the rule would be technologically feasible for
the mining industry. An agency must show that modern technology has at
least conceived some industrial strategies or devices that are likely
to be capable of meeting the standard, and which industry is generally
capable of adopting. American Iron and Steel Institute v. OSHA, (AISI-
II) 939 F.2d 975, 980 (D.C. Cir. 1991); American Iron and Steel
Institute v. OSHA, (AISI-I) 577 F.2d 825 (3d Cir. 1978) at 832-835; and
Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C.
Cir. 1974).
This rule addresses revisions of mine emergency evacuation plans
and associated training. This rule neither requires underground coal
mines to procure any additional equipment nor use any new technology.
This is not a technology-forcing standard and does not involve
activities on the frontiers of science. We conclude, therefore, that
this rule is technologically feasible.
2. Economic Feasibility
Underground coal mines will incur costs of approximately $0.23
million yearly to comply with this rule. That these compliance costs
represent well under 1 percent (about 0.003 percent) of annual
underground coal mine revenue is sufficient evidence, MSHA believes, to
conclude that this rule is economically feasible for underground coal
mines.
II. Executive Order 12291 and the Regulatory Flexibility Act
Based on its analysis, MSHA has determined that this rule would not
have a significant economic impact on a substantial number of small
entities. MSHA has so certified this finding to the Small Business
Administration. The factual basis for this certification is discussed
in chapter V of the Regulatory Economic Analysis (REA).
III. Paperwork Reduction Act
This final rule has no new or revised collections of information as
defined by the Paperwork Reduction Act of 1995 (P.L. 104-13). Section
75.1101-23 was redesignated as Sec. 75.1502. Section 75.1101-23 was
approved under OMB control number 1210-0054, with an expiration date of
September 30, 2003. The existing paperwork requirements including Sec.
75.1502 are approved under OMB control number 1219-0137, with an
expiration date of June 30, 2006.
During the first year the final rule is in effect, and every year
thereafter, the rule will impose 354 burden hours, and related burden
hour costs of $19,456.
Comments were solicited in the proposed rule for the following
issues:
1. Evaluate whether the collection of information is necessary for
the proper performance of the functions of MSHA, including whether the
information would have practical utility;
2. Evaluate the accuracy of our estimate of the burden of the
collection of information, including the validity of the methodology
and assumptions used;
3. Enhance the quality, utility, and clarity of the information to
be collected; and
4. Minimize the burden of the collection of information on
respondents, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submissions of responses.
In response to the solicitation, several commenters requested that
documents be made available to the miner's representatives. This issue
is addressed in the section by section discussion.
Our paperwork submission summarized above is explained in detail in
the REA that accompanies the rule. The REA includes the estimated costs
and assumptions for the paperwork requirement related to the rule. A
copy of the REA is available on our Web site at http://www.msha.gov/regsinfo.htm
and can also be obtained in hardcopy from us. This
paperwork requirement has been submitted to the Office of Management
and Budget for review under section 3504(h) of the Paperwork Reduction
Act of 1995. Respondents are not required to respond to any collection
of information unless it displays a current valid OMB control number.
The OMB control number for this rule is 1219-0137.
IV. Executive Order 12866
The final rule contains all costs from the effective date. These
economic statistics have been revised, as compared with the ETS and
proposed rules, to reflect this change. This change excludes costs
during the period between the effective date of the ETS and the
effective date of this final rule. Also these statistics have been
revised to reflect 2001 data and any new assumptions.
Executive Order 12866 requires that regulatory agencies assess both
the costs and benefits of intended standards and regulations. We have
fulfilled this requirement for this rule and determined that it would
not have an annual effect of $100 million or more on the economy.
Therefore, we do not consider this rule to be economically significant
under section 3(f)(1) of Executive Order 12866.
In the REA, MSHA has developed estimates of the safety benefits of
this rule, which ensures that operators and miners have a clear
understanding of actions and procedures to be followed in the event of
a mine emergency. MSHA has concluded that the two fatalities at the
Willow Creek Mine and nine of the 13 fatalities at the Jim Walter No. 5
Mine might have been prevented had this rule been in place. The Agency
has reviewed its coal accident investigation database and has not
identified any other fatalities during the past 10 years that might
have been prevented by this rule. In summary, based on its experience
over the past ten years, MSHA believes it is reasonable to estimate
that this rule could prevent 11 miners' lives from being lost every ten
years, or an average benefit of the rule of 1.1 miners' lives saved
every year. The actual number of mine fatalities prevented could be
much larger.
V. The Unfunded Mandates Reform Act of 1995 and Other Regulatory
Considerations
A. Unfunded Mandates Reform Act
MSHA has determined that, for purposes of section 202 of the
Unfunded Mandates Reform Act of 1995, this rule does not include any
Federal mandate that may result in increased expenditures by State,
local, or tribal governments in the aggregate of more than $100
million, or increased expenditures by the private sector of more than
$100 million. Moreover, the Agency has determined that for purposes of
section 203 of that Act, this rule would not significantly or uniquely
affect small governments.
Background
The Unfunded Mandates Reform Act was enacted in 1995. While much of
the Act is designed to assist the Congress in determining whether its
actions will impose costly new mandates on State, local, and tribal
governments, the Act also includes requirements to assist Federal
Agencies to make this same determination with respect to regulatory
actions.
Analysis
Based on the analysis in this REA, compliance with this rule by
coal mine operators and contractors covered within this rulemaking
would result in a compliance cost of approximately $0.23 million per
year. Accordingly, there is no need for further analysis under section
202 of the Unfunded Mandates Reform Act.
We have concluded that small governmental entities would not be
significantly or uniquely impacted by this rule. This rule would cover
664 underground coal mining operations.
B. Executive Order 13132: Federalism
We have reviewed this rule in accordance with Executive Order 13132
regarding federalism and have determined that it does not have
"federalism implications.'' This rule does not "have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
C. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
In accordance with Executive Order 13045, we have evaluated the
environmental health and safety effects of this rule on children. The
Agency has determined that this rule would have no adverse effect on
children.
D. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
We certify that this rule would not impose substantial direct
compliance cost on Indian tribal governments.
E. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
This rule is not subject to Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
F. Executive Order 12988: Civil Justice Reform
We have reviewed Executive Order 12988 and determined that this
rule would not unduly burden the Federal court system. We drafted the
rule to provide a clear legal standard for affected conduct.
G. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
In accordance with Executive Order 13211, we have reviewed the rule
for its energy impacts. The rule would have no effect on the
distribution or use of energy. The only impacts of the rule on the
supply of energy would be through its effect on the price of coal.
The estimated yearly cost of the rule for the coal mining industry
would be about $0.23 million.\1\ The annual revenues of the coal mining
industry in 2001 were approximately $17.1 billion.\2\ The cost of the
rule for the coal mining industry would therefore be 0.001% of
revenues. Even if we were to suppose that the increased cost caused by
the rule would be fully reflected in coal prices, the impact would be
negligible.
---------------------------------------------------------------------------
\1\ Estimate obtained from Table IV-1 of the REA.
\2\ Data for revenues derived from: U.S. Department of Labor,
Mine Safety and Health Administration, Office of Standards,
Regulations, and Variances, based on 2001 PEIR data and U.S.
Department of Energy, Energy Information Administration, Annual Coal
Report 2001, March 2003, Table 29, pg. 52.
---------------------------------------------------------------------------
Accordingly, we have determined that the rule would have no
significant adverse effect on the supply, distribution, or use of
energy.
H. Executive Order 13272: Proper Consideration of Small Entities in
Agency Rulemaking
In accordance with Executive Order 13272, MSHA has thoroughly
reviewed the rule to assess and take appropriate account of its
potential impact on small businesses, small governmental jurisdictions,
and small organizations. As discussed in chapter V of the REA, MSHA has
determined that the rule would not have a significant economic impact
on a substantial number of small entities.
List of Subjects
30 CFR Part 48
Education, Mine safety and health, Reporting and recordkeeping
requirements.
30 CFR Part 75
Coal mines, Underground coal mining, Mine safety and health,
Emergency medical services, Fire prevention, and recordkeeping
requirements.
Dated: September 2, 2003.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
- Chapter I of title 30, parts 48 and 75, of the Code of Federal
Regulations is amended as follows:
PART 48--[AMENDED]
- 1. The authority citation for part 48 continues to read as follows:
Authority: 30 U.S.C. 811, 825.
- 2. Section 48.8 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 48.8 Annual refresher training of miners; minimum courses of
instruction; hours of instruction.
* * * * *
(b) * * *
(4) Roof or ground control, ventilation, emergency evacuation and
firefighting plans. The course shall include a review of roof or ground
control plans in effect at the mine and the procedures for maintaining
and controlling ventilation. In addition, for underground coal mines
the course shall include a review of the emergency evacuation and
firefighting plans in effect at the mine.
* * * * *
PART 75--[AMENDED]
- 3. The authority citation for part 75 continues to read as follows:
Authority: 30 U.S.C. 811.
- 4. Subpart P is amended by revising the heading and by revising
Sec. 75.1501 to read as follows:
Subpart P--Mine Emergencies
* * * * *
Sec. 75.1501 Emergency evacuations.
(a) For each shift that miners work underground, there shall be in
attendance a responsible person designated by the mine operator to take
charge during mine emergencies involving a fire, explosion or gas or
water inundations. The responsible person shall have current knowledge
of the assigned location and expected movements of miners underground,
the operation of the mine ventilation system, the location of the mine
escapeways, the mine communications system, any mine monitoring system
if used, and the mine emergency evacuation and firefighting program of
instruction.
(b) The responsible person shall initiate and conduct an immediate
mine evacuation when there is a mine emergency which presents an
imminent danger to miners due to fire or explosion or gas or water
inundation. Only properly trained and equipped persons essential to
respond to the mine emergency may remain underground.
(c) The mine operator shall instruct all miners of the identity of
the responsible person designated by the operator for their workshift.
The mine operator shall instruct miners of any change in the identity
of the responsible person before the start of their workshift.
(d) Nothing in this section shall be construed to restrict the
ability of other persons in the mine to warn of an imminent danger
which warrants evacuation.
- 5. Section 75.1502 (as redesignated from Sec. 75.1101-23, Dec. 12,
2002, 67 FR 76658) is revised to read as follows:
Sec. 75.1502 Mine emergency evacuation and firefighting program of
instruction.
(a) Each operator of an underground coal mine shall adopt and
follow a mine emergency evacuation and firefighting program that
instructs all miners in the proper evacuation procedures they must
follow if a mine emergency occurs, location and use of firefighting
equipment, and location of escapeways, exits, and routes of travel to
the surface. Such program of instruction shall be approved by the
District Manager of the Coal Mine Safety and Health district in which
the mine is located. Before implementing any approved revision to the
program of instruction, the operator shall instruct persons affected by
the revision in any new provisions. The approved program of instruction
shall include a specific plan designed to acquaint miners on all shifts
with procedures for:
(1) Mine emergency evacuation for mine emergencies that present an
imminent danger to miners due to fire, explosion, or gas or water
inundation;
(2) Evacuation of all miners not required for a mine emergency
response;
(3) Rapid assembly and transportation of necessary miners, fire
suppression equipment, and rescue apparatus to the scene of the mine
emergency; and,
(4) Operation of the fire suppression equipment available in the
mine.
(b) In addition to the approved program of instruction required by
paragraph (a) of this section, each operator of an underground coal
mine shall ensure that:
(1) At least two miners in each working section on each production
shift are proficient in the use of all fire suppression equipment
available on such working section, and know the location of such fire
suppression equipment;
(2) Each operator of attended equipment specified in Sec. 75.1107-
1(c)(1), and each miner assigned to perform job duties at the job site
in the direct line of sight of attended equipment as described in Sec.
75.1107-1(c)(2), is proficient in the use of fire suppression devices
installed on such attended equipment; and,
(3) The shift foreman and at least one miner for every five miners
working underground on a maintenance shift are proficient in the use of
fire suppression equipment available in the mine, and know the location
of such fire suppression equipment.
(c) Each operator of an underground coal mine shall require all
miners to participate in mine emergency evacuation drills, which shall
be held at periods of time so as to ensure that all miners participate
in such evacuations at intervals of not more than 90 days.
(1) The operator shall certify by signature and date that the mine
emergency evacuation drills were held in accordance with the
requirements of this section. Certifications shall be kept at the mine
for one year and made available on request to an authorized
representative of the Secretary, and to the representative of the
miners.
(2) For purposes of this paragraph (c), a mine emergency evacuation
drill shall consist of a simulation of the actions required by the
approved mine emergency evacuation and firefighting plan described in
paragraph (a)(1) through (4) of this section.
[FR Doc. 03-22748 Filed 9-8-03; 8:45 am]
BILLING CODE 4510-43-P
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