October 22, 2018 Sheila A McConnell Director, Office of Standards, Regulations and Variances Mine Safety and Health Administration 201 12 th Street South, Suite 401 Arlington, VA 22202-5452 RE: Regulatory Reform Agenda Filed via Email: zzmsha-osrvregulatoryreform@dol.gov Dear Ms. McConnell, Contura Energy is a Tennessee-based coal supplier with affiliate mining operations across major coal basins in Pennsylvania, Virginia and West Virginia. With customers across the globe, high-quality reserves and significant port capacity, Contura Energy supplies both metallurgical coal to produce steel and thermal coal to generate power. On February 24, 2017, President Donald Trump signed Executive Order 13777, entitled "Enforcing the Regulatory Reform Agenda", directing each agency to review existing regulations to assess compliance costs and reduce regulatory burden. Since that time, the Mine Safety and Health Administration ("MSHA") requested stakeholders' assistance in identifying those regulations that could be repealed, replaced, or modified without adversely affecting miners' safety and health. Please find attached comments in response to MSHA's request. Thank you in advance for taking time to consider these recommendations. If you would like to discuss further or have any questions, please do not hesitate to contact me at your convenience. Sincerely, Allen Dupree, P.E. Senior VP, Safety and Health Contura Energy Services 340 Martin Luther King Jr. Blvd Bristol, TN 37620 Page 1 of 11 Reg Reform Comm - 069
1. Belt Air Course Ventilation (30 CFR 75.350(b)) Recommendation: MSHA should take into consideration the numerous safety enhancements that have been implemented throughout the industry in recent years when considering plan approval requests by mine operators to use belt air to ventilate working sections. Since the 2008 final rule required the District Manager's approval before belt air could be used to ventilate working sections, very few belt air ventilation plan addendums have been approved by MSHA District Managers. MSHA District Managers have been guided by the limitations outlined in Procedure Instruction Letter ("PIL") No. I12-V-14. This policy does not take into consideration the recent advancements in safety technology and standards that are currently being utilized in underground mining operations. No reportable underground belt fires have occurred following the utilization of Part 14 compliant conveyor belt. MSHA should consider these recent safety enhancements in their evaluation to approve the safe use of belt air. MSHA determined in 2004 that belt air was safe to use at all underground coal mines. Nothing has occurred in the industry since 2004 to support a change in that determination. In fact, numerous safety enhancements have been implemented in the industry. If the Technical Study Panel believed that it was safe to use belt air at mines with challenging geologic conditions or excessive methane liberation, then it is safe to use belt air at all mines, given that all the same safety precautions must be taken. Summary: 2004 On April 2, 2004, MSHA released the final rule under 30 CFR 75.350(b), to allow the use of intake air passing through belt air courses ("belt air") to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines. This final rule, which permitted the use of belt air to ventilate working sections at all underground coal mines, was extensively evaluated in the field by MSHA over many years, and determined that it could be safely implemented at all coal mines, as evidenced by the following statements in the preamble to the 2004 rule: "... These changes provide protection for miners when air is coursed through the belt entry to ventilate working sections and areas where mechanized mining Page 2 of 11
equipment is being installed or removed in underground coal mines." (pg. 17481, Federal Register/ Vol. 69, No. 64/April 2, 2004) "... We [MSHA] relied upon the Advisory Committee Report and our extensive experience with granted petitions to write the proposed rule. It is important to note that NIOSH, in comments to the proposed rule, states that the use of belt air may have a positive effect on reducing dust levels in the face area." (pg. 17 483, Federal Register/ Vol. 69, No. 64/April 2, 2004) "... MSHA used all relevant information available to draft the proposed safety standard. MSHA has painstakingly evaluated all evidence in the record." (pg. 17 483, Federal Register/ Vol. 69, No. 64/April 2, 2004) "... Many of these changes will increase miner safety and in no case will the changes reduce the current level of protections afforded miners." (pg. 17483, Federal Register/ Vol. 69, No. 64/April 2, 2004) "... we have reviewed nearly all of the petitions granted since 1978 in order to determine if there are any provisions not included in the final rule that are directly related to the safe use of belt air and are not already addressed by existing standards." (pg. 17486, Federal RegisterNol. 69, No. 64/April 2, 2004) "... MSHA has a long history of evaluating the safe use of belt air through the petition for modification process. In promulgating this final rule, MSHA has evaluated the requirements in approximately 80 granted petitions to determine which requirements can be safely applied to all underground coal mines with three or more entries that seek to use belt air." (pg. 17 494, Federal RegisterNol. 69, No. 64/April 2, 2004) "... MSHA's experience with belt air petitions indicates that, with proper precautions, allowing belt air to ventilate working places can achieve net health and safety benefits. Belt air usage can result in an increase in the quantity of air in the belt entry and other common entries (belt air course). This provides increased protection to miners against hazards created by elevated levels of methane, other harmful gases, and respirable dust." (pg. 17524, Federal RegisterNol. 69, No. 64/April 2, 2004) This final rule remained in effect until December 31, 2008 and did not require District Manager approval to use belt air to ventilate working sections. Page 3 of 11
2006-2007 In January 2006, the mining industry experienced two multiple fatal accidents (January 2, 2006 - Sago Mine explosion, January 19, 2006 -Aracoma Alma Mine #1 mine fire). In response to these accidents, Congress enacted the "Mine Improvement and New Emergency Response Act of 2006" (MINER Act) on June 15, 2006. Section 11 of the MINER Act established a Technical Study Panel, which was charged with providing "independent scientific and engineering review and recommendations with respect to the utilization of belt air and the composition and fire-retardant properties of belt materials in underground coal mining." On March 29, 2007, MSHA released their final Report of Investigation for the Aracoma Fatal Underground Coal Mine Fire. MSHA's accident investigation determined that compliance with the existing 2004 Belt Air Rule would have prevented the two fatalities. The MSHA final report of investigation of the Aracoma fatal mine fire states: On Page 2 "... Asa result of the investigation, MSHA issued 25 citations and orders for violations which contributed to the cause or severity of the accident.... Five of the citations and orders were related to the belt air rule. Had the mine operator been in compliance with the belt air rule, the fire would have not resulted in the two fatalities." (2007 MSHA Report of Investigation, Fatal Underground Coal Mine Fire, Aracoma Alma Mine #1) On Page 41 "... Had the mine operator been in compliance with the Belt Air Rule, the fire would not have resulted in the two fatalities." (2007 MSHA Report of Investigation, Fatal Underground Coal Mine Fire, Aracoma Alma Mine #1) On May 16, 2007, at the Technical Study Panel's meeting in Salt Lake City, Utah, a representative from MSHA's Aracoma Accident Investigation Team presented an overview of the findings and the conclusion of the accident investigation. The investigator addressed the Technical Study Panel by stating"... And for your benefit as a belt air committee, this accident had nothing to do with belt air." In December 2007, the "Final Report of the Technical Study Panel on the Utilization of Belt Air and the Composition and Fire-Retardant Properties of Belt Materials in Underground Coal Mining"was released. The basic recommendations on belt entry air used in working sections were summarized below: Mines using belt air to ventilate working sections must be held to a higher standard that involves the use of an atmospheric monitoring system (AMS) to Page 4 of 11
detect smoke, CO, and other signs of belt fire early and reliably, belt conveyor materials that meet the flame resistance requirements specified by NIOSH, MSHA, and other test standards, and more rigorous inspection procedures by MSHA inspectors. MSHA evaluate the use of belt entry air coursed to the working sections as part of the approval process of the mine ventilation plan. The District Manager must, as part of this recommendation, take special care to evaluate whether the belt air can be routed to working sections in a manner that is as safe as or safer than not using belt entry air to ventilate the working section. Perhaps the most important recommendation made by the Technical Study Panel dealt with improved belt flammability standards for belt material. Underground belt flammability standards worldwide were more stringent than the standard that had been applied in the United States, and the Panel recommended that more rigorous standards should be applied to belt materials used in underground coal mines. It appears though, that the Technical Study Panel desired to limit the use of belt air in the industry, even though the January 2006 fatal fire at the Aracoma mine had nothing to do with the use of belt air as stated by MSHA's accident investigation team. 2008 On December 31, 2008, MSHA released a final rule including an "amended" 30 CFR 75.350(b), which included a slight modification to the 2004 final rule. The modification directed that mining operations are only permitted the use of belt air to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines when evaluated and approved by the District Manager in the mine ventilation plan. The mine operator must provide justification in the mine ventilation plan that the use of air from a belt entry would afford at least the same measure of protection as where belt haulage entries are not used to ventilate working places. The preamble to the 2008 final rule also states that: "... MSHA believes that the use of air from the belt entry to ventilate working sections can be made as safe as not using such air." (pg. 80592, Federal Register/ Vol. 73, No. 251/December 31, 2008) "... In 2006, a fatal fire occurred at the Aracoma Alma Mine No. 1 in West Virginia. Public comments made during this rulemaking implied that deficiencies Page 5 of 11
in the ventilation methods and safety measures in place at Aracoma at the time of the fire were approved by MSHA in the ventilation plan. However, the accident investigation revealed that the Aracoma mine was not ventilated as specified and required in the approved ventilation plan. In the accident report, MSHA identified 25 violations of safety standards as contributing to the accident. The Agency concluded that the two fatalities would have been prevented had the mine operator fully complied with MSHA standards." (pg. 80592, Federal Register/ Vol. 73, No. 251/December 31, 2008) 2010 On April 6, 2010, MSHA issued Procedure Instruction Letter No. 11 0-V-06, which further restricted the use of belt air by stating: "Any mine requesting approval to use belt air to ventilate the working face must provide a compelling reason to do so before MSHA will approve such request. "Compelling reasons" may include dilution of methane, ground control hazards, or other hazards due to unique mine conditions." Procedure Instruction Letter No. 11 0-V-06 was reissued on May 7, 2012, as Procedure Instruction Letter No. I12-V-14. PIL I12-V-14 expired on March 31, 2014 and has not been reissued. Recent Safety Enhancements MSHA's 2004 final rule, which permitted the use of belt air to ventilate working sections, was extensively evaluated in the field by MSHA for many years. The preamble to the 2004 final rule stated that MSHA evaluated the requirements in approximately 80 granted petitions to determine which requirements could be safely applied to all underground coal mines with three or more entries that seek to use belt air. Even though the Technical Study Panel referenced the Aracoma mine fire in their 2007 report, MSHA's accident investigators determined that compliance with the 2004 belt air rule would have prevented the two fatalities at the Aracoma mine. No events have occurred since the 2004 final rule to negatively impact MSHA's conclusion that belt air could be safely utilized at all underground coal mines. In fact, numerous safety enhancements have been introduced and implemented in the coal mining industry since 2004. These safety enhancements include: Requirements for conveyor belt flammability were strengthened in 2008 (a recommendation made by the Technical Study Panel), as per 30 CFR Part 14, to require flame-resistant conveyor belts in underground coal mining operations. Following the installation of Part 14 flame-resistant conveyor belts, there have Page 6 of 11
not been any underground "reportable" belt fires, as defined by 30 CFR 50.2(h)(6). In 2008, MSHA's final rule under 75.1731 (Maintenance of belt conveyors and belt conveyor entries) requires that damaged rollers, or other damaged belt conveyor components, which pose a fire hazard must be immediately repaired or replaced. Also, conveyor belts must be properly aligned to prevent the moving belt from rubbing against the structure or components. Materials shall not be allowed in the belt conveyor entry where the material may contribute to a frictional heating hazard, and splicing of any approved conveyor belt must maintain flame-resistant properties of the belt. In June 2011, 30 CFR 75.403 was revised, mandating the increase in the percentage of incombustible content of rock dust along belt conveyor entries from 65% to 80%. Technological advances in Atmospheric Monitoring Systems (AMS) have made them more efficient and more reliable. AMS operators are required to receive additional training and must demonstrate to MSHA that he/she is qualified to perform the assigned tasks and understand correct responses to AMS signals, notification requirements, approved mine plans, recordkeeping requirements, and AMS operating requirements. Additional safety enhancements of using belt air to ventilate working sections include the following: A typical longwall headgate development section consists of three entries (belt air course, intake air course, and return air course). In systems where the ventilation current in the belt air course is directed outby, a fire in the primary intake air course would immediately contaminate all three entries of the development section with smoke and other gases and make escape for the miners extremely difficult. The use of air from a belt air course to ventilate a working section provides an additional separate and distinct fresh air passage from the working section in which miners can escape. On retreat mining sections, whether longwall or pillaring sections, using belt air to ventilate the working sections provides increased ventilating quantity and pressure to the working section and improves ventilation of the associated gob area near the active workings. Page 7 of 11
The use of belt air to ventilate development sections reduces the number of check curtains needed to direct airflow throughout the section, thereby improving visibility for equipment operators and reducing the potential for blind spots in equipment roadways. 2. Safeguards issued for underground coal mines (30 CFR 75.1403) Recommendation: To improve enforcement consistency across the underground coal mining industry and to provide clear guidance as to what is required for compliance, safeguards that are issued by MSHA should be specifically identified, when issued, under one of the safeguard classifications listed in 75.1403-2 through 75.1403-11. MSHA should consider a review and modification of its guidance regarding the issuance of safeguards under 75.1403. Summary: It appears most if not all safeguards are presently being issued solely under 75.1403, and not the section of regulation defining a violation, such as 75.1403-5(9). This creates an issue on several fronts. First, issuing a safeguard and subsequent citations solely under 75.1403 combines possibly unrelated citations under one section of the regulations, unintentionally increasing the history and assessment for repeat violations of the same standard. The second and more important aspect is that in the past, safeguards solely issued under 75.1403 (for conditions not listed under 75.1403-2 through 75.1403-11) were required by previous MSHA guidance to be reviewed and approved by a District Manager or Assistant District Manager, so that they would be properly worded, and more importantly, consistently applied throughout the industry. That requirement was omitted in the most recent Handbook rewrite. For reference, the MSHA regulatory language is listed below: 75.1403 Other safeguards. Other safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials shall be provided. Page 8 of 11
75.1403-1 General criteria. (a) Sections 75.1403-2 through 75.1403-11 set out the criteria by which an authorized representative of the Secretary will be guided in requiring other safeguards on a mineby-mine basis under 75.1403. Other safeguards may be required. If a hazard related to the transportation of men and materials is identified by an inspector and is not listed in 75.1403-2 through 75.1403-11, the MSHA inspector may choose to write a mine specific safeguard under 75.1403. However, the verbiage of any safeguards issued under 75.1403 (Other Safeguards) not listed in the criteria in 75.1403-2 through 75.1403-11 should first be reviewed by the MSHA District Manager to ensure that the "other safeguard" requirements are being implemented consistently across the industry, and not left up to the personal preference of each individual inspector. In the past, this potential for inconsistency was effectively addressed in the MSHA 1995 Coal General Inspection Procedures Handbook. This version of the Handbook in Chapter 5 required that... " When possible, the inspector should confer with the District Manager or Subdistrict/Assistant District Manager prior to writing a notice to provide safeguards for conditions not listed in the criteria at 30 CFR 75.1403-1 through 75.1403-11 or in one of the inspection handbooks." This effective requirement for District Manager review of "other safeguards" was omitted in the release of the 2008 Citation and Order Writing Handbook for Coal Mines and Metal and Nonmetal Mines. To provide consistent enforcement across the industry and clear guidance as to legal requirements for mine operators, MSHA should implement written guidance that safeguards be issued specifically under the appropriate section of 75.1403-2 through 75.1403-11, and require District Manager review prior to an inspector issuing a notice to provide safeguards for conditions not listed in the criteria in 30 CFR 75.1403-2 through 75.1403-11. Page 9 of 11
3. Final Rules including Preamble Recommendation: To give appropriate context and background to the regulations, the final rules including the detailed preamble which addresses the background, discussion and intent of each final rule should be easily accessible on the MSHA website. Summary: The MSHA Website is an extremely useful tool for the entire mining industry. A link which would list the final rules, including the preamble, would be extremely helpful, such as the preamble to the roof control regulations and the preamble and final rule for the 1996 Safety Standards for Underground Coal Mine Ventilation. These final rules including the preamble could be easily uploaded to the MSHA website, so that any interested parties can research the background for each final rule without searching through multiple sources or revisions to the rules to find the correct documents. 4. Rescind Program Information Bulletin NO P14-04 Recommendation: In order to eliminate confusion regarding which enforcement and procedural directives are currently active, MSHA's Program Information Bulletin NO P14-04 should be rescinded. Summary: PIB NO P14-04 essentially removed the expiration dates for MSHA Directives. Although this may appear to simplify the process of MSHA having to reissue policies and procedures once they have expired, it creates more confusion in the long run. The industry and MSHA enforcement personnel must continually monitor multiple sources of enforcement and procedural directives. A directive issued as a Procedure Instruction Letter (PIL), Program Policy Letter (PPL), PIB or other directives should be temporary in nature, and once a brief period has passed, the directive should be incorporated into the existing MSHA Program Policy Manual or appropriate MSHA Handbook. Page 10 of 11
PIB NO. P14-04 states in part that "In the past, there has been confusion over which policies and procedures were in effect, because many times valid policies and procedures were temporarily cancelled when the PPL or PIL expired and there was a delay in reissuing the directives. By no longer listing the expiration dates this problem is eliminated. Directives will continue to be reviewed through a revalidation process and cancelled when they become obsolete."... The confusion exists mainly because there are so many directives that are piecemeal in nature. Most of the policy letters or other directives could easily be incorporated into the PPM under the heading of a specific regulation or be incorporated into one of the many existing Handbooks. Page 11 of 11