[Federal Register: December 12, 2002 (Volume 67, Number 239)]
[Rules and Regulations]
[Page 76657-76665]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12de02-11]
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Part VIII
Department of Labor
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Mine Safety and Health Administration
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30 CFR Parts 48 and 75
Emergency Evacuations; Emergency Temporary Standard; Final Rule
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 48 and 75
RIN 1219 AB33
Emergency Evacuations; Emergency Temporary Standard
AGENCY: Mine Safety and Health Administration.
ACTION: Emergency temporary standard for underground coal mines.
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SUMMARY: The Mine Safety and Health Administration (MSHA) is issuing an
emergency temporary standard (ETS) under section 101(b) of the Federal
Mine Safety and Health Act of 1977 (Mine Act) in response to the grave
danger which miners are exposed to during mine fire, explosion, and gas
or water inundation emergencies. The recent deaths of 14 miners at two
underground coal mines confirm that miners working underground are
exposed to grave danger during mine emergencies and demonstrate the
need for MSHA to address proper training and mine emergency evacuation
procedures in an ETS.
This ETS requires operators of underground coal mines to designate,
for each shift that miners are working underground, a responsible
person in attendance at the mine to take charge during mine fire,
explosion, and gas or water inundation emergencies. In order to make an
informed decision regarding an evacuation, this ETS also requires that
the designated responsible person have current knowledge of various
mine systems that protect the safety and health of miners.
In addition, this ETS requires the responsible person to initiate
and conduct an immediate mine evacuation when there is a mine emergency
which presents an imminent danger to miners due to fire, explosion, or
gas or water inundation. This ETS further provides that only properly
trained and equipped persons essential to respond to the mine emergency
may remain underground.
This ETS also broadens the existing requirements for a program of
instruction for firefighting and evacuation to address fire, explosion,
and gas or water inundation emergencies. Under this ETS, operators must
adopt a program of instruction which incorporates mine fire, explosion,
and gas or water inundation emergencies into existing approved
firefighting and evacuation plans and must train miners in those
procedures. Finally, this ETS revises the part 48 training requirements
to reflect that annual refresher training includes a review of mine
fire, explosion, and gas or water inundation emergency evacuation and
firefighting plans in effect at the mine.
DATES: This ETS is effective on December 12, 2002. Submit comments on
this ETS on or before January 13, 2003. Public hearings will be held at
9 a.m. on February 4, 6, 11, and 13, 2003. The post-hearing comment
period will close on February 28, 2003.
ADDRESSES: Comments must be clearly identified as such and transmitted
either electronically to comments@msha.gov, by facsimile to (202) 693-
9441, or by regular mail or hand delivery to MSHA, Office of Standards,
Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington,
Virginia 22209-3939. You may contact MSHA with any format questions.
Comments are posted for public viewing at http://www.msha.gov/currentcomments.htm
.
Information Collection Requirements: Send written comments on the
information collection requirements to both the Office of Management
and Budget (OMB) and MSHA as follows:
(1) To OMB: If under 10 pages, by facsimile (202) 395-6974 to Attn:
Desk Officer for MSHA. All comments may by sent by mail addressed to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, New Executive Office Building, 725 17th Street, NW.,
Washington, DC 20503, Attn: Desk Officer for MSHA; and
(2) To MSHA: Comments must be clearly identified as comments on the
information collection requirements and transmitted either
electronically to comments@msha.gov, by facsimile to (202) 693-9441, or
by regular mail or hand delivery to MSHA, Office of Standards,
Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington,
Virginia 22209-3939.
Hearings: (1) The hearing on Tuesday, February 4, 2003, will be
held at the Holiday Inn Lexington--North, 1950 Newton Pike, Lexington,
Kentucky, 40511 (phone: 859-233-0512).
(2) The hearing on Thursday, February 6, 2003, will be held at the
Holiday Inn Grand Junction, 755 Horizon Drive, Grand Junction,
Colorado, 81506 (phone: 970-243-6790).
(3) The hearing on Tuesday, February 11, 2003, will be held at the
India Center, 800 Green Road South, Charleston, West Virginia, 25309
(phone: 304-744-0021).
(4) The hearing on Thursday, February 13, 2003, will be held at the
Hyatt Regency, Pittsburgh International Airport, 1111 Airport Blvd.
15231 (phone: 724-899-1234).
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Director; Office of
Standards, Regulations, and Variances, MSHA; phone: (202) 693-9440;
facsimile: (202) 693-9441; E-mail: nichols-marvin@msha.gov. You can
view comments filed on this rulemaking at http://www.msha.gov/currentcomments.htm
.
SUPPLEMENTARY INFORMATION: This ETS is issued in accordance with
section 101(b) of the Mine Act, 30 U.S.C. 811. This ETS is effective
immediately. The ETS establishes two new standards in subpart P,
section 75.1501 Emergency Evacuations, and section 75.1502 Mine
Emergency Evacuation and Firefighting Program of Instruction. Subpart P
is renamed ``Subpart P--Mine Emergencies.'' In addition, existing part
48, subpart A, section 48.8 is revised.
In accordance with section 101(b)(3) of the Mine Act, this ETS will
also serve as the Agency's proposed rule. The preamble discusses
specific provisions that may be included in the final rule and MSHA
solicits comments on these provisions.
New section 75.1501 establishes that an operator must designate a
responsible person to take charge in the event of a mine emergency
which presents an imminent danger to miners involving a fire,
explosion, or gas or water inundation. Section 75.1501 also requires
that miners need to be trained about the requirements of this section.
New section 75.1502 revises redesignated section 75.1101-23 by
including all mine emergencies created as a result of a fire, an
explosion, or a gas or water inundation, requires revisions to existing
firefighting and evacuation plans to address these emergencies,
requires training of miners regarding the mine emergency evacuation and
firefighting plan, and requires that mine operators train miners in any
revisions to the plan after its submission to MSHA for approval.
I. Basis for the Emergency Temporary Standard
A. Regulatory Authority
Section 101(b) of the Mine Act provides that:
(1) The Secretary shall provide, without regard to the
requirements of chapter 5, title 5, United States Code, for an
emergency temporary mandatory health or safety standard to take
immediate effect upon publication in the Federal Register if [s]he
determines (A) that miners are exposed to grave danger from exposure
to substances or agents determined to be toxic or physically
harmful, or to other hazards, and (B) that such emergency standard
is necessary to protect miners from such danger.
[[Page 76659]]
(2) A temporary mandatory health or safety standard shall be
effective until superseded by a mandatory standard promulgated in
accordance with the procedures prescribed in paragraph (3) of this
subsection.
(3) Upon publication of such standard in the Federal Register,
the Secretary shall commence a proceeding in accordance with section
101(a), and the standards as published shall also serve as a
proposed rule for the proceeding. The Secretary shall promulgate a
mandatory health or safety standard under this paragraph no later
than nine months after publication of the emergency temporary
standard as provided in paragraph (2).
Issuance of an ETS is an extraordinary measure provided for by the
Mine Act to enable MSHA to ``react quickly to grave dangers which
threaten miners before those dangers manifest themselves in serious or
fatal injuries or illnesses.'' S. Rept. 181, 95th Cong., 1st Sess. 23
(1977). The language authorizing the issuance of a temporary mandatory
standard for these purposes indicates that it is appropriate to address
miner exposure to ``other hazards,'' as well as toxic substances or
harmful agents. This broad scope is further indicated in the
legislative history, which states that ``[t]o exclude any kind of grave
danger would contradict the basic purpose of emergency temporary
standards--protecting miners from grave dangers.'' Id. The suggestion
that a temporary mandatory standard is limited to new dangers in the
mining industry is also dispelled in the legislative history which
explains: ``That a danger has gone unremedied should not be a bar to
issuing an emergency standard. Indeed, if such is the case, the need
for prompt action is that much more pressing.'' Id. In addition, the
legislative history emphasizes that a record of fatalities or serious
injuries is not necessary before an ETS can be issued because
``[d]isasters, fatalities, and disabilities are the very thing this
provision is designed to prevent.'' ``Waiting until those dangers
manifest themselves as fatalities or disabling injuries or illnesses,
frustrates the purpose of this [ETS] provision.'' Id. at 23-24.
B. Grave Danger
In response to the recent accidents of September 2001 at the Jim
Walter Resources No. 5 Mine and of July 2000 at the Willow Creek Mine
described elsewhere in this preamble, MSHA has determined that new
safety standards are necessary to further protect miners when a mine
emergency presenting an imminent danger to miners due to fire,
explosion, or gas or water inundation occurs which requires an
evacuation of miners. Miners and mine operators must be able to rapidly
and safely respond to emergency situations created by fire, explosion,
or gas or water inundation hazards, and initiate an immediate mine
evacuation when necessary to protect miners from the grave dangers of
remaining underground or re-entering affected areas when hazards and
conditions arise that endanger safety. A rapid and planned evacuation
of all miners, who are knowledgeable about the mine's plan for mine
emergencies, is essential to survival, and is one of the last
safeguards that would allow miners to exit from the mine under
extremely adverse conditions. The current lack of such knowledge and
demonstrated inability to quickly initiate and properly conduct a mine
evacuation, presents a grave danger to miners who work in underground
coal mines when a mine fire, explosion, or gas or water inundation
emergency occurs.
Miners who are not directed to leave the scene of a mine emergency
and who do not have knowledge about the mine's emergency evacuation and
firefighting plan face serious physical injury or death from the
hazards detailed below.
Underground coal mines are dynamic work environments where the
working conditions can change rapidly. Diligent compliance with safety
and health standards and safety conscious work habits provide a
substantial measure of protection against the occurrence of fire and
explosions and resultant mine emergencies underground. In the high
hazard work environment of underground coal mines, however, the danger
of a deadly fire, explosion, or gas or water inundation hazard which
can develop into a mine emergency is always present. For example,
electricity or other sources of power can ignite methane gas or coal
dust resulting in an explosion. Mining equipment can also be the source
of a deadly fire that may involve fuel, lubricants and the surrounding
coal. Caved, mined out areas which contain coal and accumulated gas can
be the locations for explosions caused by rock falls, and in some
instances, fires are started by spontaneous combustion. Moreover, when
active mines are connected into previously mined-out areas, there is
also the risk of exposure to an oxygen deficient atmosphere that can
cause asphyxiation. Finally, when mining near other mined out areas,
there may be a risk of water inundation.
MSHA standards are designed to prevent these types of hazards, but
mine emergencies can and do occur after these hazards develop. The
existence and development of mine emergencies is unpredictable.
Underground coal mine emergencies can quickly expand from hazards
presented in one isolated mining section to involve the entire coal
mine.
The Secretary has therefore determined that miners are exposed to
grave danger when they remain underground or re-enter affected mine
areas at the time of a mine emergency which presents an imminent danger
to miners due to fire, explosion, or gas or water inundation, without a
responsible person at the mine initiating and conducting a mine
evacuation. In addition, without timely knowledge, information and
training about a mine's emergency evacuation and firefighting program
of instruction specifically developed to cover mine fire, explosion, or
gas or water inundation emergencies, miners are exposed to a grave
danger because they are not prepared to take immediate action to
evacuate the mine in the event of such a mine emergency.
II. Discussion of the Emergency Temporary Standards
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 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 be
moved. Miners from other parts of the mine responded in an
uncoordinated effort. In addition, the CO Room operator (monitoring the
carbon monoxide monitoring system at the mine) after being notified
about the explosion, 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 headed towards the accident site and eight of those
miners entered the affected area without gas detection equipment. Seven
additional miners were directed to travel to the emergency area. The
6:15 p.m. explosion occurred before those seven additional miners
arrived in the area affected by the second 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
miners died when the second explosion occurred as they were attempting
to reach the injured miner.
MSHA's accident investigation report determined that in addition to
not
[[Page 76660]]
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 found that gas detection equipment was not
found on any of the miners or during the underground investigation in
the affected section where the explosion occurred. Gas detection
equipment is essential to determine the composition of the mine
atmosphere and 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.
After careful review of this accident, MSHA has determined that had
a designated 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 ETS, all 32 miners underground at the mine who were not
essential to an immediate response to the explosion would have been
immediately evacuated from the mine. In addition, the designated person
would 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 were not to re-enter the
emergency areas without instruction and appropriate safety equipment.
On July 31, 2000, four explosions occurred at the Willow Creek
mine. The initial explosion and subsequent fire occurred approximately
seven minutes before the later explosions which killed two miners.
Although firefighting activities began almost immediately after the
first explosion, evacuation procedures did not begin immediately and
conditions worsened before the fatal explosions occurred. After careful
review of the accident, MSHA has determined that had the decision to
evacuate been made sooner, i.e., 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 at the mine were equipped with personal emergency devices (PEDs)
which are capable of carrying text messages to underground personnel.
Many miners had evacuated the mine but 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.
MSHA is also aware of two water inundations and one gas inundation
where miners died. In 1968 in Hominey Falls, West Virginia, four miners
died from a water inundation involving old workings and 21 miners were
rescued. In Tower City, Pennsylvania in 1977 at Porter Tunnel, water
from old workings injured one miner, entrapped one miner and resulted
in nine fatalities. Finally, in 1978 at Moss 3 Mine in Duty,
West Virginia, blackdamp (atmosphere depleted of oxygen) from old
workings resulted in 5 fatalities.
B. Section-by-Section Discussion
Section 75.1501 Emergency Evacuations
Section 75.1501 is a new section which addresses mine emergency
evacuations. Paragraph (a) provides that for each shift that miners
work underground the mine operator shall designate a responsible person
in attendance at the mine to take charge during mine fire, explosion,
or gas or water inundation emergencies which present an imminent danger
to miners. Paragraph (a) further provides that the designated
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. The
purpose of these requirements is to ensure that during mine emergencies
an informed decision is made by one responsible person regarding
responses to mine emergencies, and that mine evacuations be conducted
rapidly, efficiently, and safely. The accidents described in the
background section to this preamble demonstrate the need for a
designated person to take charge during mine emergencies.
In taking charge during an emergency, the designated person directs
resources that may be required during the emergency and assures that
all nonessential miners are evacuated safely. In addition, requiring
that the designated responsible person be at the mine site during all
shifts when miners are underground assures that no delays result from
off-site telephone calls requesting instructions.
Furthermore, requiring that the designated 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 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 designated
responsible person will be aware of their presence and location
underground. Formal procedures may be needed to assure that the
responsible person can quickly locate all underground miners.
Paragraph (b) of new section 75.1501 requires that the designated
responsible person initiate and conduct an immediate mine evacuation
when there is a mine emergency which presents an imminent danger to
miners due to fire, explosion, or gas or water inundation. Paragraph
(b) further provides that only properly trained and equipped persons
essential to respond to the mine emergency may remain underground.
Although the MSHA standards have been successful in addressing
hazards and reducing risks created by fires, explosions, and gas or
water inundations, MSHA has determined that this ETS is necessary.
Miners are exposed to grave danger when they remain underground or re-
enter affected mine areas during mine emergencies which present an
imminent danger to miners. In addition, MSHA understands that not every
mine fire, explosion, or gas or water inundation hazard listed above
may result in a mine emergency. For example, only unplanned mine fires
not extinguished within 30 minutes of discovery are reportable to MSHA
under 30 CFR part 50. Such fires may not endanger miners and therefore
may not constitute a mine emergency. It is when the hazards listed
above present an imminent danger to miners that MSHA expects that an
immediate mine evacuation be initiated.
MSHA notes that the term ``imminent danger'' is defined in the Mine
Act, Section 3(j). It means, ``the existence of any condition or
practice in a coal or other mine which can 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 for the responsible person to decide to
initiate a mine evacuation. To protect miners from the grave danger of
remaining underground at that time, a
[[Page 76661]]
designated responsible person must be present to initiate and conduct
an immediate evacuation and must assure that only persons who are
properly trained and equipped and essential to respond to the mine
emergency remain underground.
Paragraph (c) of new section 75.1501 requires the operator to
instruct all miners about the requirements of this section and the
identity of the responsible person designated by the operator for their
workshift within 7 days of publication of this ETS. Paragraph (c)
further provides that the mine operator must instruct miners of any
change in the identity of the responsible person before the start of
their workshift. MSHA has determined that this provision is necessary
because, in order for a mine evacuation to be conducted without
exposing miners to grave danger, miners need up-to-date information
concerning mine emergency evacuations and the identity of the person or
persons in charge of initiating and conducting such evacuations. The
tragic accident at the Jim Walter No. 5 Mine shows that at least one
miner with access to mine wide communications did not know which
foreman was working the shift when the accident occurred and valuable
time may have been lost while trying to locate that foreman.
Paragraph (d) of new section 75.1501 provides that the ability of
any person to warn of an imminent danger which warrants an evacuation
is not restricted by the provisions of section 75.1501. This provision
is intended to recognize that there will be circumstances of imminent
danger warranting a warning by someone other than the designated
responsible person under section 75.1501(b). For example, at the
Quecreek Mine inundation accident which occurred July 24, 2002, miners
from the affected section rapidly warned miners in the other working
section of a water inundation, enabling them to escape the mine
unharmed. These actions are consistent with the approach of this
paragraph (d) which recognizes that any person may warn others of an
imminent danger. Had any delays occurred at Quecreek in warning the
miners, tragic results might have ensued.
MSHA is soliciting comments on broadening the coverage of this
section to include outbursts, massive roof falls, or other occurrences,
for example the failure of a mine system designed to protect miner
safety and health such as the ventilation control system, roof control
system, or the mine communication system.
Section 75.1502--Mine Emergency Evacuation and Firefighting Program of
Instruction
New Section 75.1502(a) requires that each operator of an
underground coal mine adopt a mine emergency evacuation and
firefighting program and begin training in those procedures as soon as
possible but in no event not to exceed 30 days from the date of
publication of this ETS. In addition, the program must be submitted to
the District Manager of the Coal Mine Health and Safety District in
which the mine is located for approval. Before any revision to the
program is implemented, persons affected by the revision must be
instructed on the revised provision.
The existing standard regarding evacuation procedures, section
75.1101-23, is located in subpart L. MSHA has determined that existing
section 75.1101-23 should be redesignated as new section 75.1502 in
subpart P and revised. New section 75.1502 focuses attention on safe
evacuation procedures to be followed in the event of a fire, explosion,
or gas or water inundation emergency.
Paragraph (a) of new section 75.1502 of this ETS revises and
replaces redesignated section 75.1101-23(a). Under new paragraph (a),
MSHA has expanded the existing program of instruction to include the
proper evacuation procedures in the event of a mine emergency. This
change reflects MSHA's determination that under the existing standards,
miners are exposed to a grave danger caused by a mine emergency due to
fire, explosion, or gas or water inundation. In addition, paragraph (a)
of new section 75.1502 retains the requirements of existing section
75.1101-23(a) 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.
Like existing section 75.1101-23, new section 75.1502 of this ETS
provides a requirement for training of all miners in the proper
evacuation procedures to be followed in the event of a mine emergency,
the location and use of firefighting equipment, the location of
escapeways, exits, and routes of travel to the surface. The training
under section 75.1502 must begin as soon as possible but in no event
later than 30 days from the date of publication of this ETS. Training
is necessary to acquaint all miners with the emergency evacuation
procedures for all mine emergencies which endanger miners due to fires,
explosions, or gas or water inundations. The decision to require
training reflects the Agency's evaluation of the existing training
programs at underground coal mines and the results of an investigation
of a mining accident where victims were unfamiliar with evacuation
procedures and did not know not to re-enter the affected areas of the
mine during a mine emergency.
Based on Agency experience, MSHA estimates that there are
approximately 45,000 workers affected by this ETS. Because effective
training related to evacuation procedures for the specified mine
emergencies is essential to the safety and health of miners, MSHA has
determined that there is a need for training of miners to acquaint all
miners with the emergency response and evacuation procedures for all
mine emergencies. In addition, in the event that any revisions are made
to the mine emergency evacuation and firefighting program of
instruction as a result of its submission to MSHA for approval, miners
would need to be trained in those revisions.
Moreover, as part of this ETS, MSHA's existing training regulation
in 30 CFR part 48 is being revised to specifically include annual
refresher training of miners regarding mine emergency evacuation and
firefighting plans. The training of new miners and experienced miner
training under part 48 does not need to be revised, however, because
existing section 48.5(b)(5) provides for training regarding emergency
evacuation and firefighting plans for new miners and existing section
48.6(b)(5) provides for training regarding emergency evacuation and
firefighting plans for experienced miners. Further discussion of the
annual refresher training of miners regarding the mine emergency
evacuation and firefighting plan is located elsewhere in this preamble.
Furthermore, unlike existing section 75.1101-23(a)(2), new section
75.1502(a) does not include an explicit provision that the approved
program of instruction be given to all miners annually or newly
employed miners within six months after the date of employment. Rather,
as discussed above, section 75.1502(a) provides for the training of
miners to acquaint all miners with the mine emergency evacuation
procedures for the specified mine emergencies as soon as possible but
not more than 30 days after the date of publication of this ETS.
In addition, new miner and experienced miner training is covered
under existing sections 48.5 and 48.6, and annual refresher training of
miners regarding mine emergency evacuation and firefighting plans are
now covered under the revised part 48 training
[[Page 76662]]
regulations. Accordingly, inclusion of those training provisions within
new section 75.1502 would be duplicative. Therefore, under this ETS,
the level of safety afforded miners will be maintained or increased
from the level of safety afforded under existing section 75.1101-23
because this ETS provides for the training of all miners for mine
emergencies including explosions and gas or water inundations, not just
mine fires, and continues to provide annual refresher training of
miners while eliminating duplicate provisions and consolidating the
training requirements under part 48. This modification of the training
requirements under existing section 75.1101-23 does not represent a
reduction in safety to miners because the training requirements of
existing section 75.1101-23 are incorporated in new section 75.1502 and
the revised and existing sections of part 48.
Paragraph (a) of new section 75.1502, like existing section
75.1101-23(a), requires that the program of instruction be submitted
for approval to MSHA. The Agency has determined that in view of the
emergency nature of this standard, operators must submit a mine
emergency evacuation and firefighting program of instruction to MSHA
within 30 days of the publication of this ETS. Paragraph (a) of new
section 75.1502 further provides that all miners will be trained on any
revisions made to the program of instruction after it has been approved
by MSHA to ensure that miners are kept aware of any changes made to the
mine emergency evacuation and firefighting plan after they have
received initial training.
Because MSHA has determined that miners are exposed to grave danger
under the specified mine emergencies which require evacuation,
paragraphs(a) (1) through (a)(4) of new section 75.1502 broaden the
scope of the approved program of instruction under existing section
75.1101-23(a)(1) through (3). Under new section 75.1502(a)(1), the
approved program of instruction must include a specific plan to
acquaint miners on all shifts with procedures for mine emergency
evacuation for mine emergencies which endanger miners due to fire,
explosion, or gas or water inundation. New paragraph (a)(2) also
expands the existing requirements to include procedures for the
evacuation of all miners not required for a mine emergency response. In
addition, under new paragraph (a)(3), the procedures for the rapid
assembly and transportation of necessary miners, fire suppression
equipment, and rescue apparatus to the scene of the mine fire is
broadened to include the scene of the mine emergency. Finally, new
paragraph (a)(4) retains the same requirements for procedures for the
operation of fire suppression equipment.
Existing MSHA-approved plans already discuss in detail the use,
location of firefighting equipment, and location of escapeways and exit
routes, and other procedures. These topics should be expanded to cover
mine explosion and gas and water inundation emergencies in addition to
fire emergencies. MSHA believes that an effective plan consists of at
least the following elements: Procedures to rapidly notify each
underground miner in the event of an emergency; and assignments of
personnel in preparation for an evacuation including procedures to
assemble and account for all miners during an evacuation, procedures to
direct underground water supplies, and procedures to deenergize
electrical power as may be appropriate during an evacuation. Mine
operators should also include within the plans the location and
availability of communication systems underground, assignments of
underground and surface personnel to coordinate the evacuation, and the
design and layout of the mine ventilation system as it might affect
miners in an evacuation.
In addition, any mine using an atmospheric monitoring system should
integrate the alert and alarm response procedure into the firefighting
and evacuation plan. The plan should be designed to assure that all
miners are familiar with the escape routes and escape facilities from
their work area, and are familiar with the operation and proper donning
procedures of self-contained self-rescuers under emergency scenarios.
The plan should also address the requirements of new section 75.1501,
and make it clear to miners that they are required to evacuate unless
they are essential for emergency response activities and they are
properly equipped and trained.
MSHA is soliciting comments on the specific elements of the mine
emergency evacuation and firefighting plan to be included in the final
rule.
Finally, as required by the last sentence in section 75.1501(b),
only properly trained and equipped persons essential to respond to the
mine emergency may remain underground. Therefore, plans should address
proper training and equipment to be used under various emergency
scenarios. For example, the plan might state that miners must be
equipped with gas detectors and qualified to use them when entering an
area affected by a gas inundation.
Paragraph (b) of new section 75.1502, concerning firefighting,
retains the same requirements as existing section 75.1101-23(b).
Paragraph (c) of new section 75.1502 essentially retains the same
requirements as existing section 75.1101-23(c) with the exception that
mine emergency evacuation drills are now required to ensure that miners
are familiar with and are able to accomplish a mine evacuation in the
event of a mine fire, explosion, or gas or water inundation emergency.
Revisions to Part 48--Annual Refresher Training of Miners
MSHA has determined to unify the training approach for mine
emergency evacuation and for firefighting plans. The rule includes the
initial immediate training requirement in section 75.1501 of this ETS.
The rule also revises part 48 for annual refresher training of miners
regarding mine emergency evacuation and firefighting plans specifically
for underground coal mines.
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 for new miners under Sec. 48.5,
and newly-employed experienced miners under Sec. 48.6, 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 ETS 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 the mine emergency evacuation
procedures for mine emergencies involving fire, explosion, or gas or
water inundations. MSHA specifically solicits comments on whether any
conforming amendments should be made in the final rule to sections 48.5
and 48.6. Those conforming amendments would state that mine emergency
evacuation and firefighting plans would be topics included. MSHA
further solicits comments on whether the training provision should be
included in part 48 or in new section 75.1502.
[[Page 76663]]
C. Feasibility
We have concluded that the requirements of the final rule are both
technologically and economically feasible.
1. Technological Feasibility
MSHA believes that the ETS 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 ETS addresses revisions of mine emergency evacuation plans and
associated training. This ETS 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 ETS is
technologically feasible.
2. Economic Feasibility
Underground coal mines would incur costs of approximately $0.26
million yearly to comply with this ETS. That these compliance costs
represent well under 1 percent (about 0.004 percent) of annual revenues
is sufficient evidence, MSHA believe, to conclude that this ETS is
economically feasible for underground coal mines.
III. Executive Order 12291 and the Regulatory Flexibility Act
Based on its analysis, MSHA has preliminarily determined that this
ETS would not have a significant economic impact on a substantial
number of small entities. MSHA has so certified this finding to the
SBA. The factual basis for this certification is discussed in chapter V
of the Preliminary Regulatory Economic Analysis (PREA).
IV. Paperwork Reduction Act
The ETS contains information collections that are subject to review
by the Office of Management and Budget (OMB) under the Paperwork
Reduction Act of 1995 (PRA95). The ETS has first year burden hours
(those that occur only in the first year) and, annual burden hours
which occur in the first year and every year thereafter.
In the First Year of the ETS
In the first year the ETS is in effect, there would be an increase
of 5,010 burden hours and a related cost increase of $250,041. Table
VII-1 in the PREA supporting this ETS shows that, with respect to first
year-only burden hours and costs, there would be an increase of 4,304
burden hours and related costs of $211,565. Table VII-2 in the PREA
shows that, with respect to every year that the ETS is in effect
(including the first year), there would be an increase of 706 burden
hours and related costs of $38,476.
In the Second Year of the ETS
After the first year of the ETS, those burden hours and related
costs occurring only in the first year would no longer occur, and what
remains are only the annual burden hours and related costs. Therefore,
in the second year of the ETS, and for every year thereafter, there
would be an increase of 706 burden hours and related costs of $38,476.
Under section 101(b)(3) of the Mine Act, an ETS as published serves
as a proposed rule. As a proposed rule, we invite public comments and
are particularly interested in comments which:
1. Evaluate whether the collection of information (presented here
and in the PREA for the ETS) 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.
We have submitted a copy of this ETS to OMB for its review and
approval of these information collections. Interested persons are
requested to send comments regarding this information collection,
including suggestions for reducing this burden, if under 10 pages, by
facsimile (202) 395-6974 to Attn: Desk Officer for MSHA. All comments
may be sent by mail addressed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, New Executive
Office Building, 725 17th Street, NW., Washington, DC 20503, Attn: Desk
Officer for MSHA. Please send a copy of your comments to MSHA at the
addresses listed in the ADDRESSES section of the preamble. Submit
written comments on the information collection not later than February
10, 2003.
Our paperwork submission summarized above is explained in detail in
the PREA that accompanies the ETS. The PREA includes the estimated
costs and assumptions for each paperwork requirement related to the
ETS. A copy of the PREA is available on our website at http://www.msha.gov/REGSINFO.HTM
and can also be obtained in hardcopy from us.
These paperwork requirements have 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. Comments may be sent to the addresses listed in the
ADDRESSES section of the preamble.
V. Executive Order 12866
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 ETS and determined that it would
not have an annual effect of $100 million or more on the economy.
Therefore, we do not consider this ETS to be economically significant
under section 3(f)(1) of Executive Order 12866.
In the PREA, MSHA has developed estimates of the safety benefits of
this ETS, 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 ETS 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 ETS. In summary, based on its experience
over the past ten years, MSHA believes it is reasonable to estimate
that this ETS could prevent 11 miners' lives from being lost every ten
years, or an average benefit of the ETS of 1.1 miners' lives saved
every year. The actual number of mine fatalities prevented could be
much larger.
[[Page 76664]]
VI. 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 ETS 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 ETS 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 PREA, compliance with this ETS by
coal mine operators and contractors covered by this rulemaking would
result in a compliance cost of approximately $0.26 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 the ETS. The ETS would cover 664
underground coal mining operations.
B. Executive Order 13132: Federalism
We have reviewed this ETS in accordance with Executive Order 13132
regarding federalism and have determined that it does not have
``federalism implications.'' This ETS 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 the ETS on children. The
Agency has determined that the ETS would have no adverse effect on
children.
D. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
We certify that the ETS would not impose substantial direct
compliance cost on Indian tribal governments. Under section 101(b)(3)
of the Mine Act, an ETS as published serves as a proposed rule. As a
proposed rule, we will provide the public, including Indian tribal
governments that operate mines, the opportunity to comment on the
requirements of the ETS.
E. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
This ETS 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 ETS
would not unduly burden the Federal court system. We drafted the ETS to
provide a clear legal standard for affected conduct. Since the ETS
serves as a proposed rule, we have asked for public comment to
eliminate ambiguities or drafting errors.
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 ETS
for its energy impacts. The ETS would have no effect on the
distribution or use of energy. The only impacts of the ETS on the
supply of energy would be through its effect on the price of coal.
The estimated yearly cost of the ETS for the coal mining industry
would be about $0.26 million.\1\ The annual revenues of the coal mining
industry in 2000 were approximately 17.7 billion.\2\ The cost of the
ETS 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 ETS
would be fully reflected in coal prices, the impact would be
negligible.
---------------------------------------------------------------------------
\1\ Estimate obtained from Table IV-1 of the PREA.
\2\ Data for revenues derived from: U.S. Department of Labor,
Mine Safety and Health Administration, Office of Standards,
Regulations, and Variances, based on 2000 PEIR data and U.S.
Department of Energy, Energy Information Administration, Coal
Industry Annual 2000, January 2002, p. 206.
---------------------------------------------------------------------------
Accordingly, we have determined that the ETS 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 ETS 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 PREA, MSHA
has determined that the ETS would not have a significant economic
impact on a substantial number of small entities.
VII. Conduct of Public Hearings
As stated above, in accordance with section 101(b)(3) of the Mine
Act, this ETS will also serve as the Agency's proposed rule. MSHA will
hold hearings on the proposed rule at the locations and dates listed in
the ADDRESSES section of the preamble. The hearings will be conducted
in an informal manner. Although formal rules of evidence or cross
examination will not apply, the presiding official may exercise
discretion to ensure the orderly progress of the hearing and may
exclude irrelevant or unduly repetitious material and questions. The
hearings will begin with an opening statement from MSHA, followed by an
opportunity for members of the public to make oral presentations. The
hearing panel may ask questions of speakers. At the discretion of the
presiding official, the time allocated to speakers for their
presentation may be limited. The hearings will begin at 9 a.m. and end
after the last scheduled speaker appears; and in any event, not later
than 5 p.m. A verbatim transcript of the proceedings will be prepared
and made a part of the rulemaking record. Copies of the transcript will
be available to the public.
The transcript will also be available on MSHA's Web page at http://www.msha.gov
, under Statutory and Regulatory Information.
MSHA will accept post-hearing written comments and other
appropriate data for the record from any interested party, including
those not presenting oral statements. Written comments will be included
in the rulemaking record.
VIII. Close of Post-hearing Comment Period
The post-hearing comment period will close on February 28, 2003.
[[Page 76665]]
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, reporting and
recordkeeping requirements.
Dated: December 9, 2002.
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 adding 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) By December 19, 2002, the mine operator shall instruct all
miners about the requirements of this section and the identity of the
responsible person(s) designated by the operator for their workshift.
The mine operator shall instruct miners of any change in the identity
of the responsible person(s) 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.
Sec. 75.1101-23 [Redesignated as Sec. 75.1502]
5. Section 75.1101-23 is redesignated as 75.1502 and 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 a program
for the instruction of all miners in the proper evacuation procedures
to be followed in the event of a mine emergency, the location and use
of firefighting equipment, location of escapeways, exits, and routes of
travel to the surface, and shall begin training in those procedures as
soon as possible but no later than January 13, 2003. In addition, such
program shall be submitted for approval to the District Manager of the
Coal Mine Health and Safety District in which the mine is located no
later than January 13, 2003. Before implementing any revision to the
mine emergency evacuation and firefighting program of instruction
persons affected by the revision shall be instructed by the operator in
its 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 endanger
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
and made available on request to an authorized representative of the
Secretary.
(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. 02-31358 Filed 12-11-02; 8:45 am]
BILLING CODE 4510-43-P