II. ISSUES

    The following issues are presented for adjudication:

1. Whether an exception to the two-escapeway requirement can be made where one escapeway will provide the same measure of protection.

2. Whether an exception to the two-escapeway requirement should be made because the requirement will result in a diminution of safety to the miners.

3. Whether, in the alternative, Petitioner may simultaneously operate the Buck Mine and rehabilitate the second tunnel in order to satisfy the two-escapeway requirement.

    III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

    A. Summary of the Evidence

   Kuzar reviewed the August 13, 1985 letter from Jerry Farmer, Chief of the Office of Engineering Services for Coal Mine Safety and Health, to Edward Connor. (PX 2). Kuzar stated that the letter described the internal layout of the mine. (T 67). According to Kuzar, " . . . they had . . . two escape ways up . . . until they reached the rock tunnel and then the rock tunnel was the only one to the surface." (T 67). Kuzar stated that such a layout was not consistent with the two-escapeway requirement. Kuzar also reviewed the June 2, 1987 letter from Farmer to Graver in which Farmer approved the mine layout with the rock tunnel as the sole travelable entrance and exit through the mine. (PX 3). However, Kuzar testified that such a layout should not have been approved. (T 68 – 71). According to Kuzar,

If one is providing an equal degree of safety for the miners, I'm talking haulage now, whether it'd be rubber tired or track haulage, I have the authority to grant waivers for that. But with regard to a statutory provision, I do not have the authority to grant a waiver or a petition. That strictly has to go through the administrator, through the petition process.

(T 72). Kuzar noted that a similar approval was given in 1991. (PX 4, T 71 – 79).

   Finally, Kuzar admitted that the rock tunnel had not changed in over 17 years and that the tunnel would probably still be travelable over the next 10 to 15 years. However, Kuzar considered that maintaining the rock tunnel as the sole escapeway from the mine was not as safe as the two-escapeway requirement. In the event that the rock tunnel was not available for escape, Kuzar opined that the second tunnel would provide a definite safety advantage. (T 84 – 90).

   Robert L. Phillips, Petition Coordinator for MSHA's Division of Safety, stated that his duties consist of reviewing modification petitions and determining whether petitions should be denied or approved. According to Phillips, when MSHA receives a modification petition, he assigns an investigator to review the petition and inspect the mine. Based upon the determination of the investigator, Phillips may recommend approval of the modification petition, or may choose to deny the petition and forward the petition to the Administrator for review. (T 92 – 97). Phillips stated that District Managers do not have authority to grant modification requests for the two-escapeway requirement and that such authority rests only with the Administrator. Phillips opined that the prior approvals of Petitioner's modification requests by previous District Managers in 1985, 1987, and 1991 were therefore improper. (T 103 – 104).

   Turning to the petition that is the subject of this modification proceeding, Phillips stated that he reviewed Petitioner's modification request. Phillips considered Petitioner's claims that making the second tunnel travelable would result in a diminution of safety and would increase hazards to the miners to rehabilitate the area. In response, Phillips testified:

(T 99). Phillips further stated that, irrespective of whether the second tunnel were used as a second escapeway out of the mine, it would need to be inspected on a weekly basis since it was being used as a return air course. (T 100).

   Phillips also considered Petitioner's argument that the proposed alternative method (i.e., keeping only the rock tunnel open) was just as safe as the having both the rock tunnel and the second tunnel available. Phillips stated that, ". . . what [Petitioner is] alleging, doesn't equal out to what Congress intended to have two separate and distinct escape ways from the working section to the surface at all times." (T 101). Further, Phillips testified that,

. . . if you have an emergency situation, you've got two escape ways. You know, you may be able to ride out the rock tunnel . . . [However] if you don't have that alternate escapeway, and just like as I heard testif[ied] previously if that rock tunnel is sealed because of a whatever then we don't know, I don't know, if you had an earthquake and, you know, your plates shifted, it could seal that one off and if you don't have another means of getting out of that mine, you're trapped there . . .

(T 107 – 108).

30 U.S.C. § 811(c); 30 C.F.R. § 44.4(a)(1). In evaluating an alternative method, a fact-finder must use a two-step analysis. The first step, focusing on the "result" clause, requires a fact-finder to find that the proposed alternative method will promote the same safety goals as the original standard with no less than the same degree of success. United Mine Workers of America v. Mine Safety and Health Administration, 928 F.2d 1200, 1202 (D.C. App. 1991); International Union, United Mine Workers of America v. Mine Safety and Health Administration, 920 F.2d 960, 963 (D.C. App. 1990). The second step, focusing on the "same measure of protection" requirement, requires a more global inquiry into the net safety effect of the modification. Taking into account both advantages and disadvantages of the alternative method, including effects unrelated to the goals of the original standard, the fact-finder must consider how the modification will affect overall mine safety. United Mine Workers of America v. Mine Safety and Health Administration, 928 F.2d at 1202.

Sen. Rpt. 95 – 181, at 4 (1977). Additionally, the Federal Mine Safety and Health Review Commission (or "the Commission") recently noted that the two-escapeway requirement was originally included in § 317(f) of the Federal Coal Mine Health and Safety Act of 1969 (or "Coal Act"), 30 U.S.C. § 801 et seq. (1976), and was incorporated without change into the Mine Act. MSHA v. Akzo Nobel Salt, Inc., 21 FMSHRC 846, 853 (1999). The Commission noted the Senate committee responsible for the drafting of the Coal Act stated,

Mine fires, extensive collapse of roof, or similar occurrences may completely block the regular travelway between the working section and the surface, thus cutting off escape in an emergency unless an alternate route is provided to the surface. As recently as March, 1968, 21 men at a salt mine lost their lives because a second escapeway was not provided.

Akzo Nobel Salt, Inc., 21 FMSHRC at 853 citing Sen. Rpt. 91 – 411 at 83 (1969).

    2. Application of the two-escapeway requirement in 30 C.F.R. § 75.381 will not result in a diminution of safety to the miners.

   Section 101(c) of the Mine Act allows the Secretary of Labor to grant a petition to modify the application of a mandatory standard to a mine when application of the standard would result in a diminution of safety to the miners. 30 U.S.C. § 811(c); 30 C.F.R. § 44.4(a)(2).

   In the instant matter, counsel for Administrator stated that MSHA ordered the Buck Mine closed due to Petitioner's failure to rehabilitate the second tunnel and for failing to submit to MSHA an up-to-date map of the mine. (T 101 – 102, 110 – 12; GX 3). Petitioner did not controvert this allegation. While an administrative law judge has authority under 30 C.F.R. Part 44 to grant a petition for a modification of a safety standard, I note that none of the pertinent statutes or regulations indicate that an administrative law judge has authority to overrule MSHA and allow miners to enter a closed mine. Additionally, as the provisions of 30 U.S.C. 815(d) and 30 C.F.R. § 100.7 have a clearly established review process of MSHA orders before the Commission, I find that Petitioner must contest any MSHA closure order before the Commission and that I do not have authority to allow Petitioner to enter the Buck Mine.

   Further, even assuming arguendo that I had authority under the modification provisions of 30 C.F.R. Part 44 to allow Petitioner to enter the Buck Mine, I note that Graver testified at the hearing that it would take three miners approximately one year to rehabilitate the second tunnel and make it travelable. (T 42). I find working in the Buck Mine for an entire year without a rehabilitated second escapeway to be unsafe and, as previously discussed, in direct contravention of the safety benefits of the two-escapeway requirement.

   Based on the foregoing, I find that Petitioner's request that it be allowed to operate the Buck Mine while simultaneously rehabilitating the second tunnel must be denied.

    C. Conclusion

   In sum, I find that keeping the rock tunnel as the sole escapeway from the Buck Mine is not an alternative method that promotes the same safety goals as the original standard with no less than the same degree of success. Considering the net safety effect of the proposed modification, I also find that keeping the rock tunnel as the sole escapeway provides less than the same measure of protection. Further, I find that requiring Petitioner to rehabilitate and maintain the second tunnel as an alternate escapeway would not result in a diminution of safety to the miners in the Buck Mine. Finally, I find that Petitioner's request to operate the Buck Mine while simultaneously rehabilitating the second tunnel must be denied.

   Pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §811(c), it is ORDERED that Buck Mountain Coal Company's Petition for Modification of the application of 30 C.F.R. § 75.381 in the Buck Mountain Slope Mine is hereby DENIED.

   It is further ORDERED that Buck Mountain Coal Company's request to simultaneously operate the Buck Mountain Slope Mine and rehabilitate the second tunnel is hereby DENIED.

      Robert D. Kaplan
      Administrative Law Judge

NOTICE OF APPEAL: The Administrative Law Judge's Decision and Order may be appealed by filing a notice of appeal within 30 days with the Assistant Secretary of Labor for Mine Safety and Health, U.S. Department of Labor, Room 622, 4015 Wilson Boulevard, Arlington, Virginia 22203. The notice of appeal shall be served on all parties to the proceeding. 30 C.F.R. § 44.33(a). Within 20 days after filing the notice of appeal, the appellant shall file a statement of objections to the decision of the Administrative Law Judge, and serve the other parties. 30 C.F.R. § 44.33(b).