Underground Coal Mine Ventilation-Safety Standards for the Use of a Belt Entry as an Intake Air Course To Ventilate Working Sections and Areas Where Mechanized Mining Equipment Is Being Installed or Removed

Federal RegisterApr 2, 2004

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219-AA76

Underground Coal Mine Ventilation—Safety Standards for the Use of a Belt Entry as an Intake Air Course To Ventilate Working Sections and Areas Where Mechanized Mining Equipment Is Being Installed or Removed

AGENCY:

Mine Safety and Health Administration, Labor.

ACTION:

Final rule.

SUMMARY:

The final rule will 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. The use of belt air, under the conditions set forth in the final rule, will maintain the level of safety, and therefore not reduce protections, currently afforded miners in underground mines while implementing advances in mining technology. The final rule amends existing safety standards for ventilation of underground coal mines. This final rule also amends other standards.

DATES:

This standard is effective June 1, 2004, with the exception of §§ 75.351(e)(3) and 75.351(r) which are effective August 2, 2004.

FOR FURTHER INFORMATION CONTACT:

Marvin W. Nichols, Director; Office of Standards, Regulations, and Variances, MSHA; phone: (202) 693-9442; facsimile: (202) 693-9441; E-mail:

nichols.marvin@dol.gov.

You may obtain copies of the final rule in alternative formats by calling his number or downloading the document from our Web site. The alternative formats available are either a large-print version of this document or an electronic file that can be sent to you either on a computer disk or an attachment to an e-mail. The document also is available on the Internet at

http://www.msha.gov/REGSINFO.HTM.

SUPPLEMENTARY INFORMATION:

Outline of Preamble

This outline will help interested parties find information in this preamble more quickly.

I. Background

II. Discussion of Final Rule

A. General Discussion—30 CFR, Part 75, Subpart D—Ventilation.

1. General comments

a. Respirable dust

b. Replace point-type type heat sensors with AMS technology in all underground coal mines, not just those using belt air to ventilate working sections

c. Battery-backup of AMS

d. Require use of both carbon monoxide and smoke sensors

e. District manager discretion

f. Use of 1989 BEVR Report and 1992 Advisory Committee Report

g. Slippage switches

2. Comments comparing the differences between the final rule's provisions and requirements found in either granted petitions or in a pre-Coal Act mine's approved ventilation plan

a. Protections under the final rule are at least equal to those contained in granted belt air petitions for modification (granted petitions) and, therefore, provide the same level or an increased level of protection currently afforded miners

b. The role of atmospheric monitoring systems in granted belt air petitions and in the final belt air rule

c. Granted belt air petition requirements not included as provisions in the final belt air rule

(1) Granted petition requirement: Sensors shall be installed “* * * as near to the roof as feasible (efforts toward monitoring within 12 inches of the roof) * * *” or, sensors shall be installed “* * * in the upper third of the entry * * *”

(2) Granted petition requirement: Tables are used to determine alert and alarm levels in many granted petitions

(3) Granted petition requirement: The method used to determine ambient level

(4) Granted petition requirement: Consideration of multiple entries is specifically addressed

(5) Granted petition requirement: Requirement for implementation of diesel-discriminating sensors

(6) Granted petition requirement: Requirement for notification of miners of alert signals

(7) Granted petition requirement: Requirement for automatic activation of section alarm for sensors on panel; sensors 4,000 feet outby during initial development

(8) Granted petition requirement: Mine phones are required to be located at intervals not to exceed 2,000 to 2,500 feet when mine personnel patrol and monitor the belt on system malfunctions

(9) Granted petition requirement: Hand monitoring for products of combustion only permitted for a short period of time

(10) Granted petition requirements: Pressure differentials maintained from escapeway to the belt air course when practicable; limit the pressure drop to lowest attainable level to escapeway from the belt when not feasible; and limiting total airflow to 50 percent of the total section intake

(11) Granted petition requirement: “Stopping” construction specified

(12) Granted petition requirement: Section alarms can be seen and heard

(13) Granted petition requirements: “Wall-of-water” fire suppression system required at all belt drives; actuation of deluge system causes section alarms activation

(14) Granted petition requirement: Smoke sensor technology study conducted

(15) Granted petition requirement: Velocity Caps

(16) Granted petition requirement: Phone; phone lines in intake (primary) escapeway

(17) Granted petition requirement: Maintenance of belt entries

(18) Granted petition requirement: Flame-resistant conveyor belting

(19) Granted petition requirement: Location to measure velocity in the belt conveyor entry

(20) Granted petition requirement: Miner training

(21) Granted petition requirement: Prior MSHA inspection of AMS before use in belt air mine

d. The effect of the final rule on pre-Coal Act mines that use belt air to ventilate working sections

(1) Mine ventilation plan: Use of time-delays, visual alert signal, audible alarm signal required at the surface location

(2) Mine ventilation plan: Alert and alarm levels of 4 and 8 ppm CO; respectively

(3) Mine ventilation plan: Miners withdrawn on alert to a safe location where communications are available

(4) Mine ventilation plan: Section alarm signals on deluge system activations

(5) Mine ventilation plan: AMS Malfunction—Phones located at belt drives; midpoint of development section

(6) Mine ventilation plan: Requires administrative controls for welding, cutting, or other known sources of CO

(7) Mine ventilation plan: Point feeding prohibited from primary escapeway to belt; Stopping maintenance

(8) Mine ventilation plan: Stoppings

(9) Mine ventilation plan: Travelway provided and maintained on tailgate of longwall sections; Intake air split

B. Section-by-Section Discussion

Section 75.301 Definitions

Section 75.350 Belt air course ventilation

Section 75.351 Atmospheric monitoring systems

Section 75.352 Actions in response to AMS malfunction, alert, or alarm signals

Section 75.371 Mine ventilation plan, contents

Section 75.372 Mine ventilation map

Section 75.380(g) Escapeway; bituminous and lignite mines

III. Paperwork Reduction Act

IV. Executive Order 12866 (Regulatory Planning and Review) and Regulatory Flexibility Act

A. Population-at-Risk

B. Benefits

C. Compliance Costs

D. Safety Benefits and Other Economic Impacts

E. Feasibility

F. Regulatory Flexibility Act (RFA) and Small Business Regulatory Enforcement Fairness Act (SBREFA)

1. Factual Basis for Certification

V. Other Regulatory Analyses

A. Unfunded Mandates Reform Act of 1995 and Executive Order 12875 (Enhancing the Intergovernmental Partnership)

B. Executive Order 13132 (Federalism)

C. Executive Order 13045 (Health and Safety Effect on Children)

D. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)

E. Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use)

H. Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking)

VI. Petitions for Modification

I. Background

The final rule revises §§ 75.350, 75.351, and 75.352 of our existing safety standards for underground coal mines. The rule also amends §§ 75.301, 75.371, 75.372, and 75.380 of our existing safety standards for underground coal mines. These changes provide protection for miners when air is coursed through the belt entry to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines (setup or removal areas). Effective ventilation and the quick identification of potential hazards are needed to provide a safe environment for miners. New technology has proven safe and effective in quickly and reliably detecting the products of combustion and providing early warning to miners. The use of belt air under this final rule will increase protection compared to mines that use only point-type heat sensors by quickly detecting products of combustion in the belt entry at an early stage of fire development and by rapidly providing warning. With this final rule in place, mine operators will no longer be required to submit petitions for modification of existing standards in order to use belt air. These changes are in accordance with requirements in section 101 of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 811.

The Federal Coal Mine Health and Safety Act of 1969 (the Coal Act), and the Mine Act that superseded it, provided that entries used as intake and return air courses be separated from belt haulage entries, and that air coursed through belt entries be prohibited from ventilating active working places. However, existing mines (pre-Coal Act mines) using belt air were permitted to continue to use belt air, with approval of the MSHA district manager (30 CFR 75.350 and formerly 30 CFR 75.326). This approach of isolating the belt entry was directed at hazards associated with the potential for undetected fires and increased dust levels in conveyor belt entries. The approach was implemented through mandatory safety standard, 30 CFR 75.326. Technology has evolved since the passage of the Coal Act in 1969. Advances in computer-operated atmospheric monitoring systems (AMS) have led to acceptance of AMSs as an effective tool to monitor conditions in mine entries and detect the products of combustion at an early stage of fire development. This final rule establishes the requirements for integrating AMSs into a comprehensive and safe approach to use belt air for ventilation of working sections or setup or removal areas that maintains or increases protection for miners.

MSHA first published a proposed rule to revise the safety standards for ventilation of underground coal mines (including original 30 CFR 75.326) in the

Federal Register

January 27, 1988 (53 FR 2382). As part of that proposed rule, MSHA proposed to allow air coursed through the belt entry to ventilate working places when mine operators have installed carbon monoxide (CO) sensors in the belt entry.

In response to public comments submitted to the Agency on the January 27, 1988 proposed rule, we held six public hearings in June 1988, with the rulemaking record closing in September 1988. Based on public comments received during this period, MSHA's Assistant Secretary called for a thorough review in March 1989 of safety factors associated with the use of air in the belt entry in the working places. MSHA completed this review and announced in an August 25, 1989 Notice in the

Federal Register

(54 FR 35356), the availability of the Belt Entry Ventilation Review (BEVR) Report. The report concluded that “* * * directing belt entry air to the face can be at least as safe as other ventilation methods provided carbon monoxide monitors or smoke detectors are installed in the belt entry.”

After the BEVR report was issued, we reopened the ventilation rulemaking record and held a seventh public hearing in April 1990, to receive public comment on issues raised in the report. The reopened ventilation rulemaking record for the 1988 proposed rule closed in May 1990.

Comments received during and after the seventh public hearing expressed divergent views on the recommendations of the BEVR Committee. Commenters representing industry and academia concluded generally that the use of air in the belt entry provides positive ventilation and reduces the possibility of a methane (CH

) build-up in the belt entry. Commenters from labor, on the other hand, maintained that the use of air in the belt entry reduces safety due to increased exposure to products of combustion and greater dust levels.

Due to these divergent views, when the ventilation rule for underground coal mines was finalized in 1992, it did not include provisions that would have allowed mine operators to use belt air to provide intake air to working places. MSHA's existing standards do not allow this practice except as approved on a mine-specific basis through the petition for modification process (30 U.S.C. 811 (c)) or when approved by the MSHA district manager for mines opened on or before March 30, 1970 (pre-Coal Act mines). The final ventilation rule retained the requirements of then-existing 30 CFR 75.326 requiring, in part, that entries used as intake and return air courses be separated from belt haulage entries and prohibiting air coursed through belt entries from ventilating active working places.

MSHA decided that the use of belt air to ventilate working places should continue as an independent rulemaking effort. As part of this effort, the Secretary of Labor appointed an Advisory Committee in January 1992 and charged it to make recommendations concerning the conditions under which air in the belt entry could be safely used in the face areas of underground coal mines. This committee was designated as the Department of Labor's Advisory Committee on the Use of Air in the Belt Entry to Ventilate the Production (Face) Areas of Underground Coal Mines and Related Provisions (Advisory Committee). The Advisory Committee held six public meetings over a six-month period. After reviewing an extensive amount of material, the Advisory Committee concluded in a final report that air in the belt entry could be safely used to ventilate working places in underground coal mines, provided certain conditions are met.

The Advisory Committee made twelve recommendations to support this conclusion. The Advisory Committee submitted its report to the Secretary of Labor in November 1992. We published a December 2, 1992 Notice (57 FR 57078) in the

Federal Register

announcing the availability of the Advisory Committee's final report and stated that we would review its recommendations.

When the Agency published its final revised ventilation rule in March 1996, several commenters urged MSHA to

proceed at that time on the issue of belt air. However, belt air was not addressed in that rulemaking. The issue was placed on MSHA's rulemaking agenda for the development of a separate proposed rule (61 FR 9765).

On January 27, 2003, MSHA published a notice of proposed rulemaking (68 FR 3936) to modify existing ventilation standards to allow the use of belt air, once certain controls were implemented in mines with three or more entries. There were five hearings on this proposed rule: in Grand Junction, Colorado; Charleston, West Virginia; Washington, Pennsylvania; Birmingham, Alabama; and Lexington, Kentucky. The post-hearing comment period closed June 30, 2003.

II. Discussion of Final Rule

A. General Discussion—30 CFR, Part 75, Subpart D—Ventilation

Existing § 75.350 (Air courses and belt haulage entries) requires that entries used as intake and return air courses be separated from belt haulage entries and prohibits air coursed through belt entries from ventilating working places. At the time the Coal Act was passed, there was concern with the increased use of conveyor belts and the potential for propagation of fires along these belts. Room and pillar mining was the predominant form of coal mining and computer-operated monitoring systems, such as the AMS, did not exist. Modern technology now allows for the use of belt air to ventilate working sections and setup or removal areas due to the development of sensitive atmospheric monitoring systems that utilize CO sensors that can readily detect small increases in the products of combustion. As AMSs have become more sophisticated, they have employed computer technology to transmit environmental measurements from remote locations to attended mine locations. These systems provide signals, store and catalogue data, and provide reports.

The final rule continues to allow the existing method of ventilation where belt air is coursed directly to a return air course or to the surface and not onto either the working sections or setup or removal areas. However, it also permits, with additional requirements to ensure miner safety, the use of belt air to ventilate the working sections and setup or removal areas.

Prior to this final rule, a mine operator would file a petition for modification to seek approval to use belt air to ventilate working places in the mine operator's underground coal mine. MSHA grants approval when the petitioned for change provides an alternate method that guarantees no less than the same measure of protection afforded by the existing standard, or when the application of the existing standard will result in a diminution of protection (30 U.S.C. 811(c)). To date, we have granted approximately 90 such petitions. However, a few of these have been revoked because the mine chose not to implement the petition or the mine was closed. Nine petitions are being processed as of the date of this notice.

Under existing § 75.350—Air courses and belt haulage entries, mines opened on or before March 30, 1970, may use belt air to ventilate working places when it is determined that this air is needed to provide adequate ventilation. Currently, pre-Coal Act mines opened before 1970 are ventilated in this manner. In each of these cases, we require the mine operator, through the mine ventilation plan, to continue to provide at least the same level of protection afforded to miners in petitions that we have granted. Under this final rule, the pre-Coal Act mines are not exempted and, therefore, must meet the new standards. This action will effectively increase protections in these mines.

MSHA's proposed belt air rule (68 FR 3936, January 27, 2003) contains further discussion of: MSHA's experience with AMSs, including belt air petitions; a discussion of reportable and nonreportable belt fires; and a section discussing Summary and Considerations of the Advisory Committee Report, Recent Belt Air Petitions, and the BEVR Report. The proposed rule can be located at

http://www.msha.gov/REGSPROP.HTM.

MSHA refers the reader to this discussion for additional information.

1. General Comments

Many comments were received during the public hearings on the belt air proposed rule which were not directly related to specific proposed provisions. While comments were directed at enhancing the health and safety of miners, they were either beyond the scope of the proposed rule or are addressed by existing standards.

a. Respirable dust. Concerns with respirable dust levels for shuttle car and ram car operators working just inby the section loading point were expressed by a number of commenters. This issue is beyond the scope of this rulemaking. The mine operator is still required to meet air quality requirements, including respirable dust (30 CFR part 70, subpart B—Dust Standards). Operators may need to implement additional dust controls in outby areas to use belt air and maintain compliance with existing standards.

b. Replace point-type heat sensors with AMS technology in all underground coal mines, not just those using belt air to ventilate working sections. It was suggested by a number of commenters that AMS technology be required in the place of point-type heat sensors (PTHS) for fire detection in belt lines in all underground coal mines. The Agency encourages the implementation of AMS technology for fire detection because the Agency believes it to be superior to PTHS systems. However applying AMS technology to all underground coal mines is beyond the scope of this rulemaking on belt air and is, therefore, not addressed in this final rule.

c. Battery backup of AMS. A number of comments were received regarding a petition requirement for a 4-hour battery backup for the AMS. The typical language from the petitions is as follows: “The low-level carbon monoxide system shall be capable of giving warning of a fire for a minimum of 4 hours after the source of power to the belt is removed, except when the power is removed during a fan stoppage or the belt haulageway is examined as provided in 30 CFR 75.1104-4(e)(1) and (2).” This is not a requirement, as interpreted by the commenters, for a battery backup for the AMS. There are no existing granted petitions known to include such a requirement for a battery backup for the AMS.

This language does not require the installation of an uninterrupted power supply (UPS) for the AMS. If power is removed from the belt, the AMS will function properly if powered from a different electrical circuit than the belt. If, however, the power source to the surface computer is interrupted, the AMS will not function. Without a UPS to power the system, the mine operator would be required to begin patrolling the belt entries, as required by § 75.352(e)(3).

The battery backup requirement is not included in the National Fire Code No. 72A (1967). Although it is not specifically required by this rule, mine operators can consider installation of a UPS to assure system operation in the event of a power interruption.

In addition, if the AMS is used as a communication system under § 75.351(r) of this final rule, then under § 75.1600(c)(2) the system must be provided with means to permit continued communication in event the mine electric power fails or is cut off. The most likely method of compliance is installation of a UPS for the AMS.

d. Require use of both carbon monoxide and smoke sensors. Some commenters suggested that the standard should require the use of both “carbon monoxide and smoke” detection as included in the Advisory Committee recommendations, rather than the language in the proposed rule allowing “carbon monoxide or smoke” detectors. MSHA did not require both for several reasons. First, researchers at the U.S. Bureau of Mines (RI 9586 and RI 9311) have stated that some smoke sensors are subject to adverse effects of dust and humidity. MSHA is not aware of a commercially-available smoke sensor not subject to dust-related interference that meets the requirements of § 75.1103-2 for use in underground coal mines. Second, CO sensors have proven to be protective for smoldering and flaming coal-type fires. NIOSH research (RI 9622) indicated a detection level of 5 ppm CO was equivalent to the detection level of smoke sensors. This comparison has led the Agency to conclude that the maximum alert level of 5 ppm carbon monoxide will provide at least the same protection to miners as a smoke sensor. For these reasons we have retained the proposed rule language, but we would encourage future research as well as implementation of new technology once it becomes available.

e. District manager discretion. Many commenters were concerned with the level of discretion that the proposed rule would give to district managers. District managers currently are responsible for the biannual reviews of the mine ventilation plans, quarterly safety and health inspections, and other inspection and investigation activities under the Mine Act. This final rule adds ventilation plan requirements that will be reviewed as part of the plan approval process. This final rule provides flexibility for mine operators to tailor ventilation plans to mine-specific conditions, and gives the district manager discretion to approve or disapprove these plans, based on those mine conditions. Such conditions could include: establishment of ambient CO levels; lower CO alert and alarm levels; implementation of other technology, such as DDS in areas of the mine where diesel-powered equipment is used; or hydrogen-insensitive sensors used to monitor battery charging stations. MSHA believes this discretion is necessary to assure that protective, mine-specific ventilation plans are developed and implemented.

f. Use of 1989 BEVR Report and 1992 Advisory Committee Report. Many of the same commenters also strongly opposed MSHA's reference to the 1989 BEVR Report in the preamble of the proposed rule. They repeatedly noted NIOSH's opposition to the conclusions of that report as a basis for their objections. MSHA included the BEVR Report in the preamble of the proposed rule for the sake of a thorough review of existing documentation on the use of belt air. We 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. In addition, NIOSH states “The development of improved atmospheric monitoring systems with fewer failures and false alarms has addressed previous reliability concerns.”

These same commenters also testified that they never fully endorsed the recommendations of the Advisory Committee Report and perceive Agency inclusion or exclusion of various recommendations as being arbitrary and more dependent upon what “fits [MSHA's] current rulemaking and enforcement scheme.” As discussed in the proposed rule, most recommendations of the Advisory Committee were included in the proposed rule and are retained in the provisions of the final rule. In cases where a recommendation was not included, extensive discussion was provided in the proposed rule. In addition, analyses in previous sections of this preamble indicate the differences found between the belt-air related requirements of granted petitions and provisions of this final rule, and the ventilation plan of a pre-Coal Act mine and provisions of this final rule do not reduce protections afforded to miners.

In addition, commenters have stated that “the Agency gives no consideration to the protections miners and their representatives have been able to attain at the mine sites through the 101(c) petition process.” They continue that “the recommendations of the Advisory Committee coupled with language currently used in these petitions should have been the basis for MSHA's writing of this proposed rule.” MSHA used all relevant information available to draft the proposed safety standard. MSHA has painstakingly evaluated all evidence in the record. Numerous changes have been included in the final rule that were not included in the proposed rule based on this analysis of, and response to, public comments. These changes will be discussed in detail in the section-by-section discussion. However, the final rule now provides for a maximum allowable air velocity in the belt entry, notification and withdrawal of personnel on working sections to a safe location if two consecutive sensors signal in the alert mode, installation of lifelines in return entries when used as alternate escapeways, and a 50% limit on intake air provided by the belt air course. Many of these changes will increase miner safety and in no case will the changes reduce the current level of protections afforded miners.

g. Slippage switches. Finally, while neither the proposed rule nor any granted petition included a requirement to monitor slippage switches, the Advisory Committee recommended the integration of slippage switches that detect belt slippage into the early-warning fire detection system. If this was not feasible, the Advisory Committee recommended that the switches be visually examined each production shift. MSHA did not propose a provision on slippage switches but did solicit comments on this issue in the proposed rule. Only a few commenters submitted information on this issue. They stated that monitoring slippage switches would be inexpensive and should be required by this final rule. Such monitoring would indicate if the belt drive would be shut down in case of slippage. Another commenter was not certain whether it was contemplated that a belt slippage would trigger an alert or alarm. MSHA believes that the monitoring of slippage switches provides little relevant information, since the belt is shut down if slippage is detected. Therefore, no such requirement is added to the final rule.

2. Comments Comparing the Differences Between the Final Rule's Provisions and Requirements Found in Either Granted Petitions or in a Pre-Coal Act Mine's Approved Ventilation Plan

The following discussion reviews comments that were received during this rulemaking that address the level of protection afforded by the final rule in comparison to levels of protection provided by granted petition requirements or ventilation plan requirements of a pre-Coal Act mine. The areas discussed are:

b. The role of atmospheric monitoring systems in granted belt air petitions and in the final belt air rule;

c. Granted belt air petition requirements not included as provisions in the final belt air rule; and

d. The effect of the final belt air rule on pre-Coal Act mines that use belt air to ventilate working sections.

a. Protections under the final rule are at least equal to those contained in granted belt air petitions for modification (granted petitions) and, therefore, provide the same or an increased level of protection currently afforded miners.

The Agency received a variety of opinions on the need for this rule and its legal basis. Some commenters supported the proposed rule, but suggested existing requirements in granted petitions be grandfathered. The commenters argued that these older requirements, such as the 2,000-foot spacing of sensors, still provide an adequate degree of safety required to use belt air. Their position is that if companies have operated successfully under the existing provisions of a granted petition, there is no need to change these requirements to conform to the new standards. We cannot dispute that some mines have effectively discovered fires using the parameters in older granted petitions. However, research and our experience gained through the petition for modification process (petition process) have shown the final belt air provisions discussed in this preamble are more protective than those requirements in older granted petitions.

In addition, these commenters suggested there will be a significant increased burden on the operators without a significant benefit to be gained by implementing the final rule. It is clear that many older granted petitions do not include significant improvements mandated in the newer petitions granted since 1996. Some older granted petition requirements have been modified by operators who recognized safer operating parameters could be implemented. These mines are operating at a level of safety exceeding the requirements of their respective granted petitions. For example, the petition granted to one mine required alert and alarm levels at 10 and 15 parts per million (ppm), respectively. The mine operator has since reduced the levels to 7 and 12 ppm, respectively, thus increasing the early-warning fire capability of the AMS. In addition, another mine operator reduced sensor spacing from 2,000 feet to 1,000 feet to reduce the distance that the products of combustion would need to travel before being detected by an AMS sensor. This increased the early-warning fire detection capability of the AMS.

Other commenters endorsed the concept of promulgating a rule, indicating that the rule was needed because of the high number of petitions filed. This final rule eliminates the need to apply for a petition and the corresponding delay in implementing the use of belt air due to the time required to process the petition.

Different commenters demanded that the Agency withdraw the proposed rule and continue to allow the use of belt air only through the petition process due to many mine-specific health and safety concerns. One post-hearing commenter stated that the use of belt air at the Jim Walter Resources No. 5 mine (JWR No. 5 mine) was a contributing factor in the explosion that killed 13 miners in September 2001. The commenter asserts that if belt air was not used, at least one or two additional entries would have needed to be developed in order to provide adequate intake air to the section.

MSHA evaluated the comments and determined that it is highly unlikely that additional entries on the longwall development would have prevented the explosions. According to the MSHA investigation report (United States Department of Labor, Mine Safety and Health Administration, Coal Mine Safety and Health. Report of Investigation—Fatal Underground Coal Mine Explosions, September 23, 2001—No. 5 Mine, Jim Walter Resources, Inc., Brookwood, Tuscaloosa County, Alabama—ID No. 01-01322.), the initial build-up of methane in the section was due to damaged ventilation controls between the intake and return entries. This damage was caused by a roof fall. This allowed intake air to short-circuit from the intake track entry into the return between the entries two crosscuts outby the last open crosscut, as noted in the accident investigation report. It was not due to blockage of the intake airway as suggested by the commenter. It is likely that any additional intake entries would have been on the opposite side of the large coal pillar, and the short-circuiting would have still occurred following the roof fall and damage to the stopping. The first explosion damaged additional ventilation controls which further affected ventilation and created the conditions for the larger second explosion.

The commenter further suggests that the AMS did not work to protect miners in the JRW No. 5 mine. MSHA disagrees. The AMS is designed to detect low-level CO concentrations in the event of a fire along the belt air course. It was not designed to withstand the forces of an explosion, and on September 23, 2001, the AMS was damaged by the initial explosion. According to MSHA's accident report, the AMS correctly identified the damage and reported the failure of the system to communicate with its components. The AMS records indicated that alert and alarm signals from other sensors exposed to CO from the explosion were received at the surface location. The system was determined to be operating properly and as designed at the time of the accident.

In addition, the commenter asserts that the use of belt air contributed to a build-up of float coal dust in the belt and return air courses that contributed to the severity of the fatal explosion. The findings in the accident report show that rock dusting was not performed properly to maintain the incombustible content in the mine. This was due to a lack of rock dust application, and not to the use of belt air. Even in the situation where the belt air is coursed in the outby direction, the return and intake entries would still need to be dusted. Both return air courses could be continually dusted while production continued 24 hours a day. As cited in the accident report, “If the 4 Section had been adequately rockdusted, coal dust would not have contributed to the second explosion and the severity of the accident. The number of fatalities would have been reduced.”

One commenter asserted that the proposed rule violates section 101(a)(9) of the Mine Act because it allegedly reduces the protections afforded miners under mine-specific modifications to the application of the existing standard. MSHA disagrees. The final rule does not violate section 101(a)(9) of the 1977 Mine Act because that provision does not call for a comparison of a new standard with mine-specific modifications of the application of an existing standard. Section 101(a)(9) states: “No mandatory health or safety standard promulgated under this title shall reduce the protection afforded miners by an existing mandatory health or safety standard.” The plain language of section 101(a)(9) calls only for a comparison of a new standard with an existing standard. The plain language of section 101(a)(9) is corroborated by the statutory placement of section 101(a)(9). Section 101(a)(9) is part of the subsection which pertains to mandatory health and safety standards—

i.e.

, section 101(a)—and is one of a series of procedural and substantive requirements which apply to such standards. The placement of section 101(a)(9) indicates that it was intended to require a “no less protection” comparison with existing mandatory standards promulgated under section 101(a), and was not intended to require such a comparison with mine-specific modifications of the application of

existing standards granted under section 101(c).

Accordingly, section 101(a)(9) requires that, in promulgating a new rule permitting the use of belt air, the Secretary weigh the net effect on safety under the new rule against the net effect on safety under the existing standard limiting the use of belt air. In promulgating this final rule, MSHA has done just that. MSHA has compared the protections provided by this final rule with the protections afforded by the existing standard and has concluded that, for the reasons set forth below, the final rule does not reduce the protection afforded by the existing standard.

Some commenters argued that this final rule did not address mine-specific concerns which were better addressed in petitions for modification. It should be noted that petition language is proposed by mine operators as an (alternative method of achieving the level of safety provided by 30 CFR 75.350). Under the “alternative method” of achieving compliance contemplated by Section 811(c), however, the mine operator need only establish that an alternative method achieves the result of the standard and guarantees a net “equivalence” in mine safety, taking all effects on mine safety into account.

Although mine-specific modifications of the application of a mandatory safety standard, together with any requirements imposed in those modifications, have “the same effect as a mandatory safety standard” at the particular mine (30 CFR 44.4(c)), such modifications have never been held to constitute a mandatory safety standard of general application. A mandatory safety standard is generally applicable to all covered mines, whereas a mine-specific modification applies to only the one mine for which it was tailored.

In addition, MSHA has determined that other safety and health provisions that may have been included in the granted petition after negotiations between the mine operator and miners' representatives are not germane to the safe use of belt air. Therefore, it is not appropriate, as well as not legally required, to include them in this final rule. For example, two petitions require an intake travelway on a longwall tailgate. An existing standard, § 75.384, already requires travelways. Also, stopping construction is limited in some petitions to solid-block construction. Stopping construction is already addressed by an existing standard, § 75.333.

The Secretary acknowledges that some mine-specific modifications of the application of the existing standard contained conditions that, from a safety standpoint, went beyond what was required to achieve net equivalence with the existing standard. While the Secretary encourages the regulated community to institute safety measures that exceed what is required by her mandatory standards, the Secretary has determined that such measures are not required to achieve safety levels deemed adequate under the existing standard and the new rule.

Some commenters contend that one-size-does-not-fit-all when it comes to using belt air in a variety of different mines. MSHA agrees. For example, the final rule allows flexibility for determining how the ambient, alert and alarm levels are established. This gives the district manager discretion in approving different levels in the ventilation plans for different mines, tailoring plans to mining conditions in each individual mine.

In general, existing § 75.370—Mine ventilation plan; submission and approval, requires that mine operators develop and follow a mine-specific ventilation plan that has been approved by the district manager. Section 75.371—Mine ventilation plan; contents, sets out the information that must be included in the ventilation plan. Additionally, the district manager is given discretion under § 75.371 to require additional provisions in submitted plans, if they are necessary to protect workers from methane and respirable dust.

b. The role of atmospheric monitoring systems (AMSs) in granted petitions and in the final belt air rule.

The cornerstone for allowing the use of belt air as intake air ventilating working sections and setup or removal areas in either a granted petition or this final rule is the proper installation, operation, maintenance, and examination of an AMS. An AMS provides for early-warning fire detection along the belt air course using sensors that detect low levels of CO or smoke. Signals from these sensors are transmitted to a designated surface location at the mine so that an AMS operator can notify appropriate personnel so that they can take required actions, depending on the type of signal received. These actions could range from an investigation of a malfunctioning sensor to evacuation of affected miners to a safe location in the mine due to an alarming sensor. Existing § 75.351—Atmospheric monitoring system (AMS), establishes performance requirements for these systems used to comply with existing §§ 75.323(d)(1)(ii)—Return air split alternative, 75.340(a)(1)(ii) and 75.340(a)(2)(ii)—Underground electrical installations, or 75.362(f)—On-shift examination. As explained in the section-by-section analysis of this final rule, existing § 75.351 is revised to require the installation and operation of an AMS if the mine operator chooses to use belt air to ventilate working sections and areas where mechanized mining equipment is being installed or removed in underground coal mines. This requirement increases the level of safety provided miners in that an AMS, when used to comply with the automatic fire sensor requirements referenced in § 75.1103-4(a)(2), can detect the products of combustion much faster than the more-common point-type heat sensors which require a significant level of heat to activate. Some commenters stated that belt air has been successfully used over many years and that only minor issues have developed concerning the AMS. An example was given that false alarms, or alarms that signal non-fire events, have been a problem in the past; but they have been “addressed.” The National Institute for Occupational Safety and Health (NIOSH) commented that “The development of improved atmospheric monitoring systems with fewer failures and false alarms has addressed previous reliability concerns.” One commenter stated that the AMS has helped to limit the number of belt fires at his mine. The use of modern AMSs helps to minimize alarms due to non-fire related CO production (nuisance alarms) and therefore, increases confidence that the signals reflect potentially hazardous conditions.

Under § 75.351(m) of this final rule, when a demonstrated need exists, such as the use of diesel-powered equipment, that can cause nuisance alert and alarm signals, time delays of up to 3 minutes (180 seconds) may be incorporated into the AMS. These time delays reduce the number of non-fire related CO sensor signals, therefore making the system more reliable by reducing nuisance alert and alarm signals.

In addition, this final rule also reduces alert and alarm levels to 5 and 10 ppm above ambient CO levels, respectively, from higher levels specified in some existing granted petitions, thus increasing protection to miners. These are the maximum alert and alarm levels allowed by this final rule. Lower alert and alarm levels can be required by the district manager if conditions in the mine warrant such a reduction. One such condition would be air quantities sufficient to dilute CO produced by a fire which could delay the early detection of the fire.

All alert and alarm values for particular CO sensors take into account

the ambient CO level (average concentration in ppm in the air course containing CO sensors) for that area of the mine where the sensors are located. Maximum alert and alarm values will be 5 and 10 ppm above ambient CO levels. For example, with an ambient CO level of 2 ppm, the alert and alarm levels will be 7 and 12 ppm, respectively. For an ambient CO level of 4 ppm, the alert and alarm levels will be 9 and 14 ppm, respectively. Both of these sets of values provide equivalent protection because the alert and alarm signals are provided when the CO concentration in the belt air course rises 5 and 10 ppm above the ambient for that area of the mine, respectively.

Also, the final rule reduces sensor spacing required by some of the older granted petitions from 2,000 feet to 1,000 feet. These additional safety requirements increase the level of fire safety in mines that choose to use belt air to ventilate working sections and setup or removal areas. We believe that there will be a reduction in the number of reportable belt fires and their severity due to the reduced sensor spacing and lowered alert and alarm levels. These provisions will provide increased early warning of the presence of the products of combustion.

Some commenters stated that more regulation is needed to make sure that the AMS is maintained and that miners are trained. They recommended that MSHA review the most stringent granted petition and adopt its training requirements into law. We believe the final rule's maintenance and training provisions are appropriate. This final rule requires the AMS to automatically signal the AMS operator of electrical malfunction of the system. If malfunction signals are received at the surface location, the AMS operator must notify appropriate personnel who have the responsibility to take immediate action to investigate the signals and correct any problems. Furthermore, the final rule requires that personnel must be trained to maintain the system and that the system must be maintained in proper operating condition. Training provisions in this final belt air standard are consistent with existing training requirements in granted petitions. As will be discussed later, it is the Agency's position that current training requirements in part 48 are sufficient to train miners and that the emergency drill requirements in existing standards are sufficient to give miners practical experience in the mine during non-emergency situations.

c. Granted belt air petition requirements not included as provisions in the final belt air rule.

In the preamble of the proposed rule, we summarized our analysis of the latest granted petition requirements from 2000 and 2001. Some commenters to the proposed rule questioned why we limited our analysis to petitions granted during 2000 and 2001. They identified specific petitions granted prior to 2000 and referenced some of these requirements. Some commenters suggested we should not have limited the analysis to that period, and that we should review all of the granted petitions. In response to these comments, 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.

We identified these requirements and considered whether they should be included in the final rule. Some of the early petition requirements identified are strengthened by the final rule, and some, while not specifically covered by this rule, are addressed in the mine ventilation plan approval process or by existing standards. Three phases of belt air granted petition requirements exist: those before the 1989 BEVR Report, those granted after publication of the BEVR report but before the 1996 revision of part 75 subpart D—Ventilation, and those granted after 1996. Requirements increased during each time period and became more consistent after 1996.

We have reviewed differences between the final rule's provisions and the requirements in granted petitions and a generic petition that was submitted as a post-hearing comment. While we have adopted a majority of requirements contained in the 79 granted petitions reviewed, there are requirements in some of these granted petitions that we did not include in the final rule. We discuss these requirements below. It should be noted that the generic petition language is comparable to requirements in granted petitions.

Research on fire detection has shown the placement of sensors is critical to effective early fire detection. Buoyancy of heated air is recognized as a significant force in spreading products of combustion. For this reason, most granted petitions contain language requiring sensors to be installed in the upper third of the entry. Comments were received from both industry and labor indicating the “upper third” requirement from existing petition language was adequate. We have included language in the final rule requiring the installation of sensors in the upper third of the entry rather than language from the proposed rule (as close to the roof as feasible). For example, in a seam height of 6 feet, sensors must be installed within 24 inches of the roof, while as in a seam height of 48 inches, the sensor must be installed within 16 inches of the roof. This would not preclude operators from installing CO sensors as close to the roof as practicable, so long as the installation of the sensors was done in a manner to appropriately monitor air flow within that entry. Accordingly, in either situation, the location of the sensor would not reduce protections found in existing granted petition requirements. The final provision language reflects our response to public comments and our experience with granted petition requirements.

(2) Granted petition requirement: Tables are used to determine alert and alarm levels in many granted petitions.

The tables identifying alert and alarm levels for mines with various air flow velocities and belt entry dimensions were developed from the nomographs published in the Bureau of Mines document, RI 9380—Fire Detection for Conveyor Belt Entries. These tables were included in a large number of granted petitions. This fire detection research set alert and alarm levels based upon air velocity, cross-sectional area, and CO generation rates from smoldering and burning fuel sources. This research was presented as nomographs used to set CO sensor settings for different sensor spacings using air velocity and entry area parameters. Tables were derived in an attempt to simplify the application of research data because the nomographs were difficult to use. For example, the maximum velocity allowed by the tables for alert and alarm levels of 5 and 10 ppm CO is 700 feet per minute (fpm). A reduction to 4 and 8 ppm alert and alarm levels would allow velocities as high as 1,680 fpm according to the tables. Because of overlap in the tables, conflicting determinations for alert and alarm settings can occur. Though the tables provided a method for reducing alert and alarm settings based on increased air flow quantities and cross-sectional areas, they have not always proven to be accurate because of variations in entry configuration and air velocity in an air course. MSHA believes that the mine ventilation plan

offers the best tool to handle special circumstances, such as when alert and alarm levels lower than 5 and 10 ppm, respectively, are needed due to increased air volume. Reduced alert and alarm levels will offset the effects of dilution caused by a higher air volume, thus maintaining the effectiveness of the AMS. These tables have not been specifically included in the final rule, but the information provided by the Bureau of Mines research will be considered by MSHA district managers when approving mine ventilation plans, including the alert and alarm levels established for compliance with the final rule.

Some older granted petitions required alert and alarm levels to be set at 10 and 15 ppm CO above the ambient levels, respectively. These operations will be required by the final rule to increase protection by reducing these levels to 5 and 10 ppm above ambient or lower, respectively. Some granted petitions required the use of RI 9380 to set alert and alarm levels. The Agency believes there may be cases where the alert and alarm levels may need to be further reduced below 5 and 10 ppm, respectively, and the district manager should have available all research information to assist in determining the most appropriate settings.

(3) Granted petition requirement: The method used to determine ambient level.

Many granted petitions include specific language on the method for determining the ambient CO levels. Other granted petitions allow a specified method to be used, or an alternate method approved by MSHA. Many mines have already established appropriate ambient levels and methods that are included in approved mine ventilation plans, as required since 1992 by existing § 75.371(hh). For example, if a mine operator submits in the ventilation plan an ambient concentration of zero ppm, there will be no need to document the determination. If an operator requests an ambient concentration of eight ppm, MSHA would require documentation to approve such an ambient including the method used and CO levels measured. A single method for determining the ambient is not included in the final rule to give mine operators and district managers flexibility in establishing appropriate ambient levels that account for mine-specific situations. Any additional requirement on this issue is likely to be duplicative of former § 75.351.

(4) Granted petition requirement: Consideration of multiple entries is specifically addressed.

The effect of common entries on air flow is a complex issue. We have evaluated one entry in common (not separated by stoppings) with the belt entry and have discovered there is continual communication (air flow) between the two entries. MSHA has discouraged excessive numbers of common entries in the mine ventilation plan approval process, especially in mines using an AMS for fire detection. Air velocities can be difficult to maintain at or above 50 fpm in many of these mines. According to the results of recent NIOSH research (Edwards

et al.

, 1999), CO sensors have proven effective at lower air velocities, when sensor spacing is reduced. Our experience is that the mine ventilation plan approval process assures the safe use of belt air by requiring AMS sensor locations that reflect the actual ventilation pattern in the mine. The Agency conducts ventilation surveys in many mines to determine the adequacy of a variety of mine ventilation plan specifications. The district manager has the authority to require either lower alert and alarm settings, additional CO sensor installations, or a combination of the two depending on the results of the MSHA survey.

(5) Granted petition requirement: Requirement for implementation of diesel-discriminating sensors.

Neither the proposed rule nor the final rule require the use of diesel-discriminating sensors (DDSs). However, some commenters suggested that the Agency require the use of such sensors. Currently, only three non-two-entry granted petitions require diesel-discriminating sensors. One of these mines is closed, one mine never implemented the granted belt air petition, and one is active. This active mine benefits from the use of DDS because diesel-powered equipment emissions contaminate the belt entry, thus increasing the occurrence of non-fire alert and alarm signals if standard CO sensors were used. DDS technology reduces the incidence of these non-fire alert and alarm signals. Not all mines that use diesel-powered equipment would benefit from installing these sensors because the exhaust emissions in some mines are isolated from the belt entry due to the mining system employed. For this reason, the final belt air rule gives the mine operator the option of using such a sensor in reducing nuisance alert and alarm signals. Using DDS to detect non-fire alert and alarm signals is not required because some mining systems either do not use diesel-powered equipment or do not use such equipment near the belt entry. Mine operators are encouraged to explore all methods for reducing the occurrence of alert and alarm signals due to diesel-powered engine exhaust emissions and other mine gases. As stated above, DDSs are effective in detecting fires while reducing the frequency of nuisance alert and alarm signals. Other methods and new technology may be equally or more effective, so limiting the technology to DDS in the final rule would inhibit the future application of technology providing increased protection. In addition, by requiring the mine operator to meet the requirements of § 75.352—Actions in response to AMS malfunction, alert, or alarm signals, this final rule maintains protections currently afforded miners covered by these three granted petitions.

Research is continuing on fire detection technology in both the public and private sectors. In 2003, MSHA evaluated a sensor designed to measure CO in areas where hydrogen could be present, such as in the vicinity of battery charging stations. The sensor was found to be insensitive to hydrogen while providing accurate measurements of CO in gas mixtures. Any methods for reducing nuisance and false alert and alarm signals, including the implementation of the DDS technology and hydrogen-insensitive technology, must be approved in the mine ventilation plan.

(6) Granted petition requirement: Requirement for notification of miners of alert signals.

The proposed rule did not require automatic notification of personnel on working sections and setup or removal areas in the event of a single alerting sensor, but did require such notification in the event of an alarming sensor. Similarly, the final rule does not require notification of personnel on working sections and on setup or removal areas following an alert signal from a single sensor. However, the final rule requires an investigation of the cause of the alert signal and the appropriate personnel are expected to investigate the cause of the alert signal. In response to comments received on the proposed rule and current petition requirements, an additional requirement to the provision (§ 75.352(c)) has been added to the final rule. During the alert mode, notification and removal of miners to a safe location is required only if two or more consecutive sensors reach and maintain alert status. This situation suggests a possible developing fire, thus removal of miners to a safe location is required and investigation of the signaling sensors is required to determine the cause. Automatic section signals are required by recently granted petitions

for alarm signals, which is consistent with both the proposed and final rule. Many older granted petitions required the sensor located near the section tailpiece to automatically activate the section alarm unit upon alert or alarm levels of CO being detected. These same mines utilized alert and alarm levels of 10 and 15 ppm, respectively. At 10 ppm CO, miners would be withdrawn to an area either outby the alerting sensor or to the section loading point. In either event, miners withdrawn to these locations may still be in danger, depending on where the fire is located. This final rule exceeds the requirements in these older granted petitions because miners are removed to a safe location pending investigation of a potential fire. In addition, an investigation would have been initiated by the AMS operator upon receiving an alert signal at 5 ppm CO. This further increases protections afforded miners beyond those set forth by the petition requirements.

The newer petitions simply require notification of the affected working sections and investigation of the cause of the actuation. No additional actions are required for the affected sections. Because of this, MSHA sees no benefit of notification of miners in the affected sections unless these miners are necessary to investigate the alert signal. The primary reason for not requiring notification on an affected working section of a single alert signal is that it will reduce the incidence of the “cry wolf” syndrome, in which alert and alarm signals are discounted by miners as related to non-fire sources, such as diesel-powered equipment or welding fumes, and not to a real fire event. The final rule maintains the existing level of protection.

(7) Granted petition requirement: Requirement for automatic activation of section alarm for sensors on panel; sensors 4,000 feet outby during initial development.

The final rule exceeds these granted petition requirements in that any outby or upwind sensor indicating CO alarm levels requires activation of the working section alarm for all affected areas. For example, if the most outby sensor on the belt was to detect an alarm level of CO, and air passing this sensor could travel to all working sections and setup or removal areas, then all alarms in the mine must activate to notify miners.

(8) Granted petition requirement: Mine phones are required to be located at intervals not to exceed 2,000 to 2,500 feet when mine personnel patrol and monitor the belt on system malfunctions.

The final rule requires maximum phone spacing of 2,000 feet when mine personnel monitor by patrolling if AMS components are inoperative for any reason. Many older granted petitions do not include phone-spacing requirements. Others require specific spacing of 2,000 feet as the granted condition. Many existing granted petitions have duplicative requirements that are already required in existing § 75.1600—Communications, including requirements for the repair and location of the phone system.

(9) Granted petition requirement: Hand monitoring for products of combustion only permitted for a short period of time.

The final rule, as in the proposed rule, does not limit the length of time allowed to hand monitor the belt entry in cases of sensor or system failure. Hand monitoring is considered to provide equivalent protection because similar sensor technology is used during hand monitoring and alert and alarm levels are reported immediately to the AMS operator. No specific comments were received regarding the duration of hand monitoring. However, we believe it is in the best interest of the operator and miners to repair the AMS as quickly as possible. Hand monitoring is considered a safe alternate method that provides the same level of protection as the AMS. However, it is labor intensive and therefore, far more costly than the AMS in monitoring the belt entry, so we believe that mine operators will limit the duration of hand monitoring.

Recently granted petitions include some combination of these requirements. The pressure differential requirement was thoroughly discussed in the Advisory Committee report and the proposed rule preamble. The Agency agrees that it would be prudent to minimize leakage from the belt air course to the primary escapeway to the greatest extent possible. Absolute control on the pressure drop is nearly impossible. However, the Agency has included in the final rule the provision that unless otherwise approved by the district manager, the belt entry can contribute no more than 50% of intake air that ventilates working sections and setup or removal areas. This requirement is included in many granted petitions but was not included in the proposed rule because at the time MSHA believed it was best addressed on a mine-by-mine basis through the ventilation plan process. However, the requirement is included in this final rule due to commenters' concern that operators could provide a majority of the working section intake air from the belt air course, which would more likely create a pressure drop from the belt air course to the primary escapeway. This new provision is consistent with the intent of the proposed rule. The pressure differential from the belt air course to the primary escapeway will be minimized to the extent feasible. This will help to assure that the primary escapeway will be kept free of the products of combustion by balancing the pressures between the air courses, thereby minimizing leakage to the extent possible. Proper stopping construction and maintenance along with ventilation system design considerations can properly protect the integrity of the primary escapeway. Further clarification of this new provision is provided under the section-by-section discussion of § 75.350(b)(6).

(11) Granted petition requirement: “Stopping” construction specified.

In some granted petitions, stopping construction techniques and materials used for stoppings were specified, and some required approval of such in the mine ventilation plan. One granted petition required stoppings to be built of “* * * six-inch wide block and coated

1/8

inch thick on both sides with an approved sealant for dry-stacking applications. Equivalent ventilation controls may be used provided they meet American Society for Testing and Materials (ASTM) testing standards on durability (ASTM E72-80) and flammability (E162-87).” The provisions of current § 75.333, revised in 1992, include these same ASTM testing standards.

Some commenters to the proposed rule stated that the construction and maintenance of stoppings are not sufficient for proper control of air leakage. However, existing § 75.333(e)(1)(i) sets minimum construction requirements for stoppings. The requirements include an ASTM test that can be used to determine the strength of a stopping. Additionally, § 75.333(h) sets the maintenance requirements for stoppings. If stoppings are constructed and maintained as prescribed, leakage is minimized.

A few commenters asserted that some stoppings do not protect miners during a mine fire. They stated that stoppings do not provide adequate protections to prevent a “burn through” during a fire.

One commenter stated, based on his experience with the January 2003, Mine 84 mine fire in Pennsylvania, that the panel-type metal stoppings would not

have held up during the fire. However, from the miners' testimony associated with MSHA's investigation of the Mine 84 fire, the steel-panel stoppings would have provided ample protection for miners during escape. Existing § 75.333(e)(1)(ii) requires that stoppings be constructed of noncombustible material. Existing § 75.301 provides a definition of “noncombustible material” when it applies to a ventilation control. The definition states that the control must continue to serve its intended function for one hour when subjected to a fire test incorporating an ASTM E119-88 time/temperature heat input, or equivalent. The Agency believes that the 1-hour period provides time for escape during a fire and that the ASTM E119-88 heat input is an appropriate test for noncombustible material.

One commenter stated that some miners were not trained in the proper procedures to build stoppings. The commenter offered examples of construction inadequacies when building concrete block stoppings. Another commenter stated that he observed stoppings in his mine that were constructed incorrectly. The Agency acknowledges that miners who build stoppings must be trained in the proper method to construct stoppings. Stoppings must be built to meet the requirements of existing standards. Failure to properly build stoppings can result in air loss and compromise the separation of air courses. Existing standards under § 75.333—Ventilation controls, address these concerns about stoppings.

One commenter asserted that the investigation of the JWR No. 5 Mine explosion found that metal stoppings were ineffective. The commenter stated that the metal stoppings were not hitched into the coal rib as prescribed by the manufacturer. Existing standards require that the stoppings be installed to serve the purpose to which they are intended, § 75.333(h). Further, the commenter states that this type of ventilation control can fail easily during an explosion. Metal stoppings must meet the same construction requirements as other stoppings, including concrete block stoppings. Another commenter stated that metal stoppings are not adequate to withstand an explosion. Stoppings, including those constructed of concrete blocks or metal, are not designed or required to withstand explosion forces.

(12) Granted petition requirement: Section alarms can be seen and heard.

As previously discussed, the proposed rule indicated section alarms must be “capable of being seen and heard” by miners working on working sections and setup or removal areas. This is consistent with the majority of granted petitions whose language required “visual and audible signals that can be seen and heard on the working section.” To clarify the intent of the signaling device requirement, the final rule states that both visual and audible signals must be provided to working sections and to setup or removal areas and that these signals “must be seen or heard” by miners. This modification recognizes the fact, as supported by comments, that not every miner on a working section or in setup or removal areas is able to both see and hear the alarms. Both types of signals must be provided to working sections; however, MSHA acknowledges that in practice not all miners will be able to see and hear both signals. For example, if an alarm occurs in a mine with a granted petition that requires miners to both see and hear alarms, the miners working at the section loading point would be able to both see and hear both signals, but other miners working at the face may not be able to either see or hear the signals. Our intent is that the signals must be seen or heard by miners who will be able to notify other miners in affected areas who may not be able to see or hear the signals. This maintains the existing level of protection for miners working in mines with granted belt air petitions which require both signals to be seen and heard because it is recognized that all miners cannot see and hear both signals at all times.

(13) Granted petition requirements: “Wall-of-water” fire suppression system required at all belt drives; actuation of deluge system causes section alarms activation.

Existing § 75.1101—Deluge-type water spray systems, requires that deluge-type water sprays or foam generators be installed at main and secondary belt-conveyor drives. These deluge-type water spray systems must automatically be actuated by a rise in temperature, or other no less effective means of controlling fire. These systems must be approved by the Secretary. Therefore, MSHA did not require in the proposed rule any particular deluge fire suppression system (wet or dry) for protecting belt drives in mines using belt air. The mine operator should select a fire suppression system appropriate for the specific operation. In some cases, a dry-powder fire suppression system may be more appropriate due to mine conditions that would result in freezing of water lines. Since a “wall-of-water” fire suppression system is not appropriate for all mines, it is not required by this final belt air rule.

The proposed rule did not require that the fire suppression system be monitored with the AMS. Only three granted petitions contain this requirement. One of these mines is closed, one mine has not implemented the granted petition, and one mine is active. Actuation of any fire suppression system (wet or dry) causing section alarm activations is not necessary since the early-warning fire detection system will likely detect a fire before the fire suppression system is activated. In the accident investigation report for the VP 8 mine fire, it was concluded that the fire started at the belt drive. The dry-powder fire suppression system activated at that drive 32 minutes after detection by the AMS. The Agency has no data that support monitoring the deluge system with the AMS provides an added safety benefit.

Though not proposed, we have included in the final rule a new requirement that all fire suppression systems (wet or dry) must be compatible with air velocities within the belt air course, § 75.350(a)(3), based on comments and Agency investigation into the VP 8 mine fire. There is additional explanation in the section-by-section discussion on § 75.350(a)(3).

(14) Granted petition requirement: Smoke sensor technology study conducted.

The final rule allows for implementation of smoke sensor technology and recognizes that smoke sensor detection levels can be equivalent to CO sensor detection levels at 5 ppm. The Agency believes mine operators would be prudent to evaluate the effectiveness of these sensors as a possible improvement to the AMS and fire detection capabilities. This is the reason the final rule has been written to allow their use.

(15) Granted petition requirement: Velocity Caps.

Eleven of the 79 granted petitions reviewed included velocity caps (limitations on velocity of air in the belt entry). These caps ranged from 250 to 725 fpm. In the case of a few early granted petitions, early research studies did not evaluate the effects of air velocities in excess of 300 fpm. Therefore, a velocity cap of 300 fpm was placed on air velocity. Later petitions did not typically include this 300 fpm cap due to additional research which indicated that higher velocities could be safely used. Later petitions that did include a velocity cap typically limited the air velocity to 500 fpm. We have included in the final rule a limit of 500 fpm unless higher velocities are specifically approved in the mine ventilation plan. This cap was

determined from data obtained in large-scale fire testing conducted by the U.S. Bureau of Mines that showed, in part, that smoldering coal fires would not be detected in a timely manner to provide early warning by CO sensors signaling at 5 ppm in velocities exceeding 500 fpm.

(16) Granted petition requirement: Phone; phone lines in intake (primary) escapeway.

The proposed rule required two means of communication, with one being the AMS and the second the two-way voice communication system required under existing § 75.1600. Like the proposed rule, separation of the trunk lines for these systems is required in the final rule. However, we have changed the language in response to comments received on the separation of the AMS and the communication system, because the sensor in the primary escapeway and those used to monitor point feeds are part of the AMS. Installation of the phone line and these sensors in the escapeway would have been a violation of the proposed standard. The final provision was revised to allow for installation of the two-way voice communication system in the same entry (non-belt entry) where the intake sensors required by §§ 75.350(b)(4) (primary escapeway) or 75.350(d)(1) (point feeding) are installed.

Some commenters suggested there is no need to require separation of AMS and voice-communication cables. However, as the MSHA investigation of the Fairfax mine fire determined, communication was lost because the phone line was installed in the belt entry and damaged due to the fire. In the Blue Diamond mine fire, as well as other documented mine fires, the AMS trunk line in the belt entry was damaged, causing communication failures early in the fire's development.

Many commenters suggested the requirement should be grandfathered, to allow operators to provide separation of these cables starting on the final rule's effective date. A concern of some of the commenters is the cost of moving one of the cables. Some mines reportedly use a single multi-conductor cable for both the AMS and phone system. The Agency disagrees with the commenters on this issue, due to the reasons stated above. However, we are allowing a longer implementation period to allow mine operators time to separate AMS and voice communication cables as required by the final rule.

(17) Granted petition requirement: Maintenance of belt entries.

The granted petition requirement states, “The operator shall develop and implement a special belt entry maintenance program to control combustibles and fire sources in the belt conveyor entries.” The following specific items are listed in the granted petition as part of the program and include: inspection of fire suppression systems, maintenance of belt components, maintenance of electrical installations, and inspection of belt components. MSHA already has existing standards that cover these granted petition requirements on routine belt cleaning, belt maintenance and rock dusting under §§ 75.360—Preshift examination at fixed intervals, 75.362—On-shift examination; and part 75 subpart E—Combustible Materials and Rockdusting.

(18) Granted petition requirement: Flame-resistant conveyor belting.

Another granted petition requirement includes the use of conveyor belt material that has passed MSHA's new flame-resistant test once the material becomes commercially available. Although, this granted petition requirement was included in 59 granted petitions, the requirement was never implemented in practice. The reason is that the referenced conveyor-belt flammability test was part of a flame-resistant conveyor belt proposed rule that MSHA subsequently withdrew in 2002 for the reasons set forth in the withdrawal notice. (67 FR 46431). The granted petition requirement cannot be implemented since the requisite flame-resistant conveyor belt test has not been promulgated.

Even without a rule on flame-resistant conveyor belt material, monitoring the belt entry for the products of combustion has become more prevalent. The most notable improvement in belt monitoring is the mining industry's increased use of AMSs in belt entries. Monitoring systems, in general, give advance warning of a developing fire in a belt entry allowing for earlier response, thereby limiting injuries to miners and fire damage. An AMS also provides advanced warning of increasing CO concentrations, thereby alerting mine operators to potentially hazardous situations.

(19) Granted petition requirement: Location to measure velocity in the belt conveyor entry.

This petition requirement relates to the use of tables to set alert and alarm levels based on the area of the entry and air velocity. The granted petition requirement reads, “Measurements to obtain the average air velocity in a conveyor belt entry shall be taken at three or more locations which are representative of the cross sectional areas found throughout the entry and not at locations where the entry is abnormally high (

e.g.

belt drives) or low (

e.g.

under overcasts).” This final rule, as in the proposed rule, does not use tables to establish alert and alarm levels; therefore, this petition requirement is moot.

(20) Granted petition requirement: Miner training.

The granted petition language requires that miners be trained in initial and refresher training regarding compliance with conditions specified in the petitions. This includes proper evacuation procedures. Sixty-two granted petitions contain this requirement. However, these requirements are covered either under existing 30 CFR part 48 training provisions or under evacuation training provisions included in the recently finalized § 75.1502—Mine emergency evacuation and firefighting program of instruction.

(21) Granted petition requirement: Prior MSHA inspection of AMS before use in belt air mine

The granted petition requirement requires that, prior to implementing the use of belt air, MSHA inspect the AMS to see if it is fully operational and in compliance with the terms and conditions of the granted petition. This requirement is included in 59 granted petitions. The proposed rule did not include this specific requirement and neither does the final rule.

The ultimate responsibility for assuring proper installation and operation of the AMS rests with the mine operator. MSHA already enforces standards to assure the mine operator maintains the system as required. As required by §§ 75.350(b)(1) and 75.351 of this final rule, the AMS must be installed, operated, examined, and maintained if belt air is used to ventilate working sections and setup or removal areas. Some commenters to the proposed rule asserted that this inspection prior to the use of belt air should be in addition to the quarterly safety and health inspections of underground coal mines. Many belt air petitions required that the AMS fire detection system be inspected prior to belt air being used to ventilate working places as part of the conditions of the granted petition. However, when this rule becomes final, an operator will be able to start developing a mine with belt air being coursed onto the working sections and setup or removal areas, provided the final standards are followed. MSHA's regular inspections will be conducted during the initial development of the mine and the AMS will be inspected as part of these inspections.

The Agency believes that an additional startup inspection prior to coursing belt air onto a working section would be duplicative of the inspections already conducted for mines that already have granted belt air petitions (approximately 45 active mines) and for pre-Coal Act mines (approximately 2 mines) that use belt air. The AMSs in these mines have already been inspected and are currently inspected quarterly. In addition, for mines that convert to belt air following publication of this final rule that have existing CO monitoring systems used to comply with existing § 75.1103-4, MSHA currently inspects these systems quarterly (approximately 15 mines). The primary differences in the provisions between § 75.1103-4 and this final rule could be in the alert and alarm levels and sensor spacing. For mines that seek to use belt air and do not have an existing CO monitoring system used to comply with § 75.1103-4 (approximately 6 mines), MSHA believes that a start-up inspection offers no additional safety benefit because of the numerous inspections that MSHA already conducts on an annual basis to these mines. For these mines, the MSHA presence will be significant, especially during mine development when the AMS would be installed prior to belt air use. In addition, these inspections would include a review of the AMS system in use at the mine site through review of the mine's ventilation plan and emergency evacuation plan. Therefore, a requirement for prior inspection of all of these AMSs in not necessary and would not further safety. In addition, MSHA will continue to inspect these systems to ensure that they are installed, operated, examined, and maintained according to the requirements of this final rule.

Additionally, commenters urged MSHA to inspect the AMS to make sure it is working appropriately and to inspect the system more frequently than each regular inspection. Again, MSHA personnel inspect the AMS as part of the regular inspections of the mine pursuant to section 103(a) of the Mine Act (30 U.S.C. 813(a)). The Agency believes that additional inspections are not necessary and would be duplicative of existing Agency actions. This action will not diminish protections afforded miners because prior to the use of belt air, the mine operator must assure that the AMS is installed, operated, examined, and maintained according to the requirements in §§ 75.350(b) and 75.351 of this final rule.

d. The effect of the final rule on pre-Coal Act mines that use belt air to ventilate working sections.

In the case of mines opened on or prior to March 30, 1970, the effective date of the Coal Act of 1969 (pre-Coal Act mines), the use of belt air is allowed through the mine ventilation plan approved by the MSHA district manager. As noted earlier, under the final rule, these pre-Coal Act mines using belt air to ventilate working places and/or setup or removal areas with working sections developed using three or more entries are not exempted from the rule and must meet the new standards, thus maintaining protections afforded to miners. This final rule also applies to pre-Coal Act mines that use belt air as a result of a granted petition. Some commenters stated that the proposed rule may lessen the protection provided at pre-Coal Act mines, such as the Gary 50 mine (now known as Pinnacle Mine) in southern West Virginia. We reviewed the mine ventilation plan requirements for the Gary 50 mine to identify the differences between the Gary 50 mine ventilation plan requirements and this final rule's provisions. We discuss the differences below.

(1) Mine ventilation plan: Use of time-delays, visual alert signal, audible alarm signal required at the surface location.

The approved ventilation plan for the Gary 50 mine allows short time delays of 30 to 90 seconds before all affected persons need to be notified following an alarm signal to limit situations that may cause nuisance or false alarms. AMS sensors that utilize time delays allow alert or alarm levels of CO to exist for a specified period of time prior to the computer acknowledging at the surface location that an actual alert or alarm signal was being received. If welding is being conducted within the belt entry by a sensor causing momentary increases in CO, a time delay would decrease the number of times the computer would signal an alert or alarm, and subsequently decrease the occurrence of non-fire related alert and alarm signals. However, such delays are not always necessary. The final rule allows the use of time delays only where there is a demonstrated need and the delays are specified and approved in the mine ventilation plan. The Gary 50 ventilation plan does not require that a demonstrated need for the time delay exists. In addition, the final rule allows for a time delay that does not exceed 3 minutes (§ 75.351(m)) only when a demonstrated need exists. Under this final rule, the Gary 50 mine would need to demonstrate a need for this time delay. If a mine operator demonstrates a need for a time delay, the time delay will reduce the number of nuisance and false alert and alarms the mine experiences. This will increase confidence in the AMS and will therefore help to assure appropriate responses during fire-related alert and alarm conditions.

The final rule requirement that both visual and audible alert and alarm signals be transmitted to the surface location where the AMS operator is located is more protective than the Gary 50 mine ventilation plan. This final rule requires both visual and audible signals for both alert and alarm levels be seen or heard at all times at the surface location. The Gary 50 plan requires only that a visual alert signal and an audible alarm signal be provided at the surface location. Only the CO sensor at the section loading point is required to automatically give a notification to the section for alert signals in the mine ventilation plan. The final rule requires immediate automatic notification of alarms in all affected areas, while the plan requires notification within a 90-second time delay.

(2) Mine ventilation plan: Alert and alarm levels of 4 and 8 ppm CO; respectively.

The district manager has required these reduced alert and alarm levels in the approved mine ventilation plan, and can continue to require them after the effective date of the final rule. The plan and final rule are compatible in this regard. Under final § 75.351(i)(2) the district manager may require reduced alert and alarm levels.

(3) Mine ventilation plan: Miners withdrawn on alert to a safe location where communications are available.

The plan approval requires that the AMS operator notify miners of an alert signal and that the miners withdraw to a safe location in the primary escapeway. The final rule requires withdrawal to a safe location identified in the emergency evacuation and firefighting program of instruction when two or more consecutive sensors are in alert mode or when any sensor is in the alarm mode. In the event of an alarm both the plan and this final rule require withdrawal to a safe location, unless the alarm is known not to be a hazard to the miners. Following withdrawal both the plan and the final rule require that an investigation be conducted to determine whether the alert or alarms are fire-related. They differ only in that the plan requires that miners be withdrawn when the AMS indicates one sensor is in alert mode. The final rule requires that miners be withdrawn when the AMS indicates two consecutive sensors are in alert mode, thereby reducing the “cry-wolf” syndrome. The “cry-wolf” syndrome occurs when alert and alarm signals are discounted by miners as

related to non-fire sources, such as diesel-powered equipment or welding fumes, and not to a real fire event. It will reduce nuisance alert and alarm events, thus increasing the effectiveness of the AMS as a early-warning fire detection system. The final rule addresses the need to assure that temporary non-fire-related events do not cause withdrawal that could result in unnecessary panic among miners and that miners are assured that an order for withdrawal means there is an actual fire-related event. Therefore, the plan and final rule provide equivalent safety.

(4) Mine ventilation plan: Section alarm signals on deluge system activations.

The Gary 50 mine ventilation plan requires that the mine operator monitor deluge system activations with the AMS or alarms on activation of these systems. The Agency believes that actuation of the deluge system causing section alarms activations is not necessary since the early-warning fire detection system will likely detect a fire before the deluge system is activated, thereby making the monitoring of deluge system activations unnecessary. This issue was discussed in MSHA's report on the VP 8 mine fire, which started at a belt drive. The fire at the belt drive was detected by the CO system 32 minutes before the fire suppression system activated due to heat from the fire. Mine operators may choose to monitor deluge system activations to provide data to evaluate the effectiveness of deluge systems. This does not reduce protections for the reasons stated previously.

(5) Mine ventilation plan: AMS Malfunction—Phones located at belt drives; midpoint of development section.

The Gary 50 mine ventilation plan allows phones to be spaced up to 5,000 feet apart in cases where longwall panels could be 10,000 feet in length. The final rule requires that communication be available in the belt entry at intervals not to exceed 2,000 feet in case of AMS malfunction. The final rule meets the plan requirement, and exceeds it in most cases.

(6) Mine ventilation plan: Requires administrative controls for welding, cutting, or other known sources of CO.

The final rule does not require operators to implement administrative controls to reduce false or nuisance alert and alarm signals. These controls could include notification of the AMS operator prior to welding and cutting activities near sensors.

The mine operator is expected to adjust mining activities to comply with all the provisions of this final rule. This includes the implementation of time delays, if approved. All alert signals are received by the AMS operator and must be investigated by appropriate personnel to determine what caused the alert and to correct the situation. The Gary 50 ventilation plan also requires the AMS operator to initiate an investigation by appropriate personnel of alert signals to verify whether or not the situation poses a hazard to miners. The Agency believes that pre-notification of non-fire related CO such as produced by welding activities may be of benefit to the AMS operator, but may provide little additional protection to miners, since all alerts must be investigated and are not automatically communicated to affected areas. The rule does not prohibit notice to the AMS operator about cutting and welding activities. Mine operators who required that this information be supplied to the AMS operator may continue to do so.

(7) Mine ventilation plan: Point feeding prohibited from primary escapeway to belt; Stopping maintenance.

Point feeding, the process of providing additional intake air to the belt air course from another intake air course through a regulator, is permitted by the final rule with safeguards. These include a minimum air velocity through the regulator, monitoring the regulator for CO, and specific approval in the mine ventilation plan. Point feeding from the primary escapeway is safe when monitored with other controls in place, as specified in the final rule.

Point feeding is permitted in the Gary 50 mine ventilation plan from intake entries other than the primary escapeway, but monitoring of the airstreams is not required. In this area the final rule provides greater protection than the requirements of the approved plan.

(8) Mine ventilation plan: Stoppings.

The Gary 50 mine ventilation plan requirements include a provision to inspect and reseal stoppings. Existing § 75.333(h)—Ventilation controls, requires all ventilation controls to be properly maintained, so the plan merely repeats an existing standard that covers all underground coal mines.

(9) Mine ventilation plan: Travelway provided and maintained on tailgate of longwall sections; Intake air split.

This Gary 50 mine ventilation plan requirement also allows the established travelway to be ventilated with return air if needed. Existing § 75.384 already requires a travelway to be maintained on the tailgate side of the panel when both escapeways are located on the headgate side. This travelway can be ventilated with either intake or return air.

While some commenters claimed that the proposed rule may not provide the same level of protection as the requirements contained in the mine ventilation plan for mines in existence on the effective date of the 1969 Coal Act, we disagree. In the discussion above, we examined nine requirements in the mine ventilation plan for a pre-Coal Act mine, the Gary 50 mine. We conclude that the final rule increases the protection for miners for 2 of those requirements, produces the same level of protection for 7 of those requirements, and in no case reduces the level of protection afforded miners.

B. Section-by-Section Discussion

The following portion of the preamble discusses each provision of the final rule. The text of the final rule is included at the end of the document.

PART 75—MANDATORY SAFETY STANDARDS—UNDERGROUND COAL MINES

Section 75.301 Definitions

This final rule will add six new definitions to the list of definitions contained in the existing standard. As with other definitions in this section, the new definitions only apply to the standards contained in part 75, subpart D—Ventilation.

Like the proposed rule, the final rule defines the

AMS operator

as the person(s) designated by the mine operator and located on the surface of the mine to monitor the AMS signals and to notify appropriate personnel in response to a malfunction, alert, or alarm signal.

The AMS operator could be the person designated under § 75.1501—Emergency Evacuations, to be in charge during a mine emergency evacuation, however the final rule does not require the AMS operator to be this person. Likewise the AMS operator could be considered “appropriate personnel” designated by the mine operator to respond to AMS signals under § 75.351. MSHA did not receive comments on the specific language of this definition and therefore it remains as proposed.

Like the proposed rule, the final rule defines

appropriate personnel

as the person or persons designated by the operator to perform specific tasks in response to AMS signals under § 75.351. No comments on the specific language of this definition were received. However, the final language has been modified to reflect the new language in §§ 75.1501 and 75.1502, as a result of the September 9, 2003 publication of the final Emergency Evacuations rule (68 FR 53049).

We have added a clarification in this definition of

appropriate personnel

“[a]ppropriate personnel includes the responsible person(s) required by § 75.1501 when an emergency evacuation is necessary.” This change is consistent with the responsibilities set forth in §§ 75.1501(a) and (b) of the Emergency Evacuations final rule. These sections require 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 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 * * * 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.”

The responsible person is one of the many individuals that meets the definition of appropriate personnel. Appropriate personnel have numerous and varied tasks depending on the type of signals received from the AMS, including checking a malfunctioning sensor, patrolling the belt air course in the event of AMS failure, and responding to mine emergencies. As a result, different situations will require different individuals having the designation as “appropriate personnel.” In the event of mine emergencies involving a fire, explosion or gas or water inundations, the duties of one person meeting the definition of appropriate personnel could be the same person as a “responsible person” under § 75.1501.

Like the proposed rule, the final rule defines an

atmospheric monitoring system (AMS)

as a network consisting of hardware and software capable of: measuring atmospheric parameters, such as carbon monoxide and methane concentrations, and smoke optical density; transmitting the measurements to a designated surface location; providing alert and alarm signals to designated locations; processing and cataloging atmospheric data; and providing reports that can be used in the maintenance and calibration of the system by the mine operator. Each of these capabilities is important and an AMS used to comply with the requirements of this standard must provide the functions contained in the rule. In addition, as in the proposed rule, the final rule makes provision for new technology. Early-warning fire detection systems using newer technology that provides equal or greater protection, as determined by the Secretary, will be considered an atmospheric monitoring system for the purposes of this subpart. Unlike provisions in a granted petition, this provision allows the mine operator to use technology as it becomes commercially available and is of a type and installed in a manner approved by the Secretary that increases safety without the need to amend the existing granted petition.

A commenter requested clarification concerning whether a mine using an AMS would also be required to use point-type heat sensor (PTHS). A system that meets the requirements of § 75.350 meets the requirements of § 75.1103-4; therefore an additional system using PTHS to comply with § 75.1103-4 is not needed. In addition, the commenter requested clarification as to the use of the battery backup (standby power source) during fan maintenance and mine emergencies. The AMS is required under § 75.1103-4(e) to give warning of fire for a minimum of 4 hours after the source of power to the belt is removed, unless the belt haulageway is examined for hot rollers and fire as provided in §§ 75.1103-4(e)(1) or 75.1103-4(e)(2). MSHA has included a reference to these sections in § 75.350(b)(1). MSHA did not receive any comments on the specific language of this definition and, therefore, it remains as proposed.

Like the proposed rule, the final rule includes a definition for the

belt air course.

The belt air course is defined as the entry in which a belt is located and any adjacent entry(ies) not separated from the belt entry by permanent ventilation controls, including any entries in series with the belt entry, terminating at a return regulator, a section loading point, or the surface. No comments on the specific language of this proposed definition were received. Therefore, the final language remains unchanged from that of the proposed rule.

The final rule defines

carbon monoxide ambient level

as the average concentration in parts per million (ppm) of CO detected in an air course containing CO sensors. The CO ambient level is an average that is representative of the composition of the mine atmosphere over a designated period of mining activity during non-fire conditions. The proposed rule language is almost identical to the final rule language with the exception that “in parts per million (ppm)” was included in the definition to state the units of measurement of CO. In addition, the final rule language states that the average “concentration” of CO is representative of the composition of the mine atmosphere “over a period of mining activity during a non-fire condition” as opposed to “during a non-fire condition.”

An effective early-warning fire detection system must be based upon reasonable operating parameters, which include the evaluation of ambient CO levels. One commenter suggested that the CO ambient level be determined by monitoring the air for a specified period of time, such as two to four weeks, within the entry or entries to be protected. This monitoring would occur prior to the commissioning of the installed CO system to help achieve an accurate average ambient level for CO. MSHA agrees that there needs to be a method to determine the ambient level. However, there are several ways to establish this level. The ambient level and ambient determination method are already required by existing § 75.371(hh) to be included in the mine's ventilation plan. Due to different mining systems, it is the mine operator's responsibility to determine which method is best for the mine and to determine the ambient level subject to approval of the district manager. This provides flexibility in establishing the ambient CO level.

The definition of CO ambient level includes the term “average concentration.” Ambient CO levels can vary from mine to mine and even within an individual mine. For example, one area of a mine may contain higher concentrations of CO at all times due to a variety of reasons (

e.g.

, naturally-occurring CO in the area or increased use of diesel-powered equipment in the area). Accordingly, the ambient level in these areas of the mine will be higher. The ambient level and the method used to determine it must approved in the mine ventilation plan. Unless the ambient level is specified as zero ppm, documentation must be provided to the district manager that the specified ambient level requested reflects the true conditions of the mine atmosphere. For many mines, the average concentration will be the same throughout the air course and will be at or near zero ppm. If a mine operator chooses to set the mine's ambient level at zero ppm, or less than the actual ambient level, this action will provide increased sensitivity for fire detection.

There may be more than one ambient level per mine because the mine

operator may establish separate ambient levels for different areas of the mine. We recognize that in some mines, CO occurs naturally as a characteristic of the coal seam and that higher average concentrations will exist. Also, diesel-powered equipment produces CO when operating and thus may raise the average concentration of CO within the air course. Operation of diesel-powered equipment near a CO sensor might cause “spike” concentrations of CO to occur. In-mine tests have shown that these spikes account for a small part of the sample concentrations. Thus, if the CO ambient level is determined using a reasonable duration of time that is representative of mining conditions, the average will represent the concentration in ppm approximating that most often found in the air course.

In order for an AMS with CO sensors to be effective as an early-warning fire detection system, the ambient level must represent conditions over a broad range of mining activities. We recognize that the CO level may vary from shift to shift depending on the type or amount of work being done. While some petitions established the method for determining the ambient level(s) for a mine, we believe approval of the ambient level and the method used to establish it are most appropriately addressed in the mine ventilation plan due to varying mining conditions and activities. Therefore, MSHA will continue to require that the CO ambient level and the method for determining the ambient level be specified and approved in the mine ventilation plan, § 75.371(hh), as already required by former § 75.351. A commenter asked for clarification in the rule language itself that would state that there could be more than one CO ambient level in the mine thus giving mine operators the flexibility to establish more than one ambient. MSHA acknowledges that a mine may have multiple ambient levels such as when diesel-powered equipment is used in certain areas of the mine. Such equipment, when in use, increases CO levels in that area of the mine, thereby increasing non-fire alert and alarms unless the ambient CO level is modified. The following language has been added to the definition of CO ambient, “Separate ambient levels may be established for different areas of the mine” to clarify this issue. The language in the final definition remains modified as stated above, from the language in the proposed rule.

It needs to be noted that the actual alert and alarm values for particular sensors will depend upon the ambient level for the area where these sensors are located. The ambient level represents the sum in ppm of both the naturally-occurring and man-made sources of CO, such as diesel-powered mining equipment in a particular area of a mine. Both the proposed and final rule take into account the ambient levels when alert and alarm levels are established. For an ambient level of 2 ppm, the alert and alarm levels will be 7 and 12 ppm, respectively. For an ambient level of 4 ppm, the alert and alarm levels will be 9 and 14 ppm, respectively. Both of these sets of values provide equivalent protection because the alert and alarm signals are provided when the CO concentration in the belt air course rises 5 and 10 ppm above the ambient, respectively.

No comments were received on the proposed definition for

point feeding

and it is unchanged in the final rule. As defined by the final rule, point feeding is the process of providing additional intake air to the belt air course from another intake air course through a regulator. Point-feeding allows the mine operator to increase airflow within the belt entry from other intake entries. This additional air is needed in many mines to dilute methane, coal dust, and diesel-powered engine exhaust. In addition, point feeding from one intake air course to another reduces the pressure differentials between these entries, which limits uncontrolled leakage from one air course to another air course. Sometimes providing additional air to the belt air course to increase air velocity in the belt entry is necessary to maintain the needed air velocity to assure compatibility with fire-detection sensor spacing. Although we acknowledge that point-feeding may be necessary, we think that the number of point-feed regulators should be kept to a minimum to maintain the integrity of the primary escapeway. This is important because if a fire develops in the belt air course, the primary escapeway is protected from smoke contamination due to a minimum number of point-feed regulators which can be closed remotely.

Because the point-feed regulator is a permanent ventilation control, the point-feed regulator must be constructed according to the requirements of existing § 75.333(e)(1) (Ventilation controls) which states the method and material requirements for the construction of permanent stoppings and regulators.

Section 75.350 Belt Air Course Ventilation

This final rule revises § 75.350 that prohibits air coursed through belt entries from ventilating working places, except as approved on a mine-specific basis through the petition for modification process (30 U.S.C. 811(c)) or when approved by the MSHA district manager for mines opened prior to March 30, 1970 (pre-Coal Act mines). As noted under the Background section of this preamble, 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. This issue was discussed earlier in this preamble in the subsection entitled “A. General Discussion—30 CFR, part 75, Subpart D—Ventilation” found under the section entitled “II. Discussion of Final Rule.”

As used in the existing standard, the term “belt entries” refers to the belt air course. Under the final rule, the belt air course can be used to ventilate working sections, if the mine operator meets specified requirements. The term “working sections,” and not “working places,” was used in the proposed rule and is used in the final rule to include the area inby the section loading point. Existing § 75.380(g) requires separation of the primary escapeway from the belt entry beginning at the working section to the escape facilities or the surface. Thus, if the mine operator wishes to course belt air inby the end of the separation of the primary escapeway from the belt, the safety requirements of this final rule apply.

The final rule also permits belt air to be used to ventilate mechanized mining equipment setup or removal areas if the mine operator meets the same specified safety requirements. If intake air passes through a belt entry where the belt is not operable, and is coursed onto a setup or removal area, the specified requirements do not apply. However, if any of the air that passes through the belt air course has passed over a belt that is being operated and will ventilate either working sections or equipment setup or removal areas, the specified requirements of this final rule apply. This maintains the protections set forth in this final rule.

Existing § 75.350 requires that the air velocity in the belt entries be limited to the amount necessary to provide an adequate supply of oxygen in these entries and to assure that the air contains less than 1.0 percent methane. Existing §§ 75.321 and 75.323 require that oxygen and methane be kept within specified limits, respectively. Therefore, this final rule is consistent with

§§ 75.321 and 75.323. It would not increase miner protection to repeat these requirements in the new § 75.350. Miners receive the same level of protection.

Separation of the belt air course from the primary escapeway is required by existing § 75.380(g). Under the existing § 75.350, the belt air course must be separated with permanent ventilation controls from return air courses and from other intake air courses.

Section 75.350(a) of this final rule prohibits the use of the belt air course as a return air course. It also requires that belt air cannot be used to ventilate the working sections or setup or removal areas except as specified in § 75.350(b). Section 75.350(a)(1) requires separation of the belt air course from return air courses and other intake air courses with permanent stoppings. When the mine operator meets the requirements specified in § 75.350(b), separation of the belt air course from intake air courses, other than primary escapeways (covered under existing § 75.380(g)), is not required.

The proposed rule did not set velocity caps, or maximum air velocities, within the belt air course. Some commenters agreed with the proposed rule, affirming that there should not be a limit imposed on the air velocity or quantity. Others maintained excessive velocities created a float coal dust hazard as well as increasing respirable dust levels within the air course, and that a cap on velocities should be set.

The Agency is persuaded that there is a need for a velocity cap and that the cap will increase miners' protection. Section 75.350(a) is being revised by adding a new § 75.350(a)(2) to the final rule based on a review of the rulemaking record. Once this final rule becomes effective, the air velocity in the belt entry must be limited to 500 fpm, unless higher velocities are approved by the district manager through the ventilation plan process.

Velocity caps were required in a small percentage of granted petitions over the last 25 years. In the Agency's review of nearly all granted petitions, a total of 11 mines were limited to velocities ranging from 250 to 725 fpm. The original belt air velocity cap of 300 fpm was required in a few granted petitions in the late 1980s based on the equivalency testing conducted by MSHA. The 300-fpm limit was the maximum velocity created in the test facility, and because the effects of higher velocities on belt fires were not known, the velocity cap was established. Results of large-scale testing by the U.S. Bureau of Mines at higher velocities (as high as 1,200 fpm) indicated the 300-fpm velocity cap was not warranted, and so it was typically not required in subsequent granted petitions. However, some recently granted petitions included velocity caps ranging from 250 to 500 fpm to address mine-specific conditions.

We have included the 500 fpm velocity cap requirement in § 75.350(a)(2). This requirement applies to all mines. We reviewed numerous research publications, granted petitions, ANSI standards, a NIOSH research report, and mine fire investigation reports. The velocity limit was ultimately determined by MSHA's analysis of RI 9380 and existing granted petition requirements for sensor alert and alarm levels.

The results of U.S. Bureau of Mines research report RI 9380 were based on large scale fire testing which used velocities in a wind tunnel up to 1,200 fpm. The report stated that when the belt entry air velocity exceeds about 2.54 meters/second (500 fpm), the smoldering stage would not be detected by either 5 ppm CO sensors or 0.044/meter smoke optical density smoke detectors. For this reason, to provide an early-warning fire detection system, the maximum velocity in the belt entry must not exceed 500 fpm, when alert and alarm levels are 5 and 10 ppm, respectively, and sensor spacing is set at 1,000 feet. Higher velocities would be allowed only with approval of the district manager. We expect that approval of velocities in excess of 500 fpm would require reduced CO alert and alarm levels. Alternatively, other detection technology with increased sensitivity could be used to replace the CO sensors in these areas.

In addition, ANSI/ISA-92.02.01, Part I—1998, prescribes a test procedure to determine the effects of air velocity on the performance of CO monitors. The maximum velocity tested in this procedure is approximately 1,000 fpm. Therefore, the performance of the monitors is not verified above this limit when tested to that standard. While the district manager may approve velocities in excess of 500 fpm, in mines using belt air the Agency recommends that air velocity not exceed 1,000 fpm unless the fire detection system is known to be compatible with such air velocities.

While we are persuaded that there is a need for velocity caps, we looked at the relationship between velocity caps and fire detection systems. MSHA found that the effectiveness of the fire detection system is dependent upon air velocity. As a result, though not proposed, we have included, in § 75.350(a)(3), a requirement that air velocities must be compatible with fire detection systems as well as fire suppression systems used in the belt entry. MSHA has included the requirement that air velocity be compatible with fire suppression systems due to the findings of our report on the VP 8 mine fire (Non-Injury Mine Fire Accident; April 9 & 10, VP 8, I.D. 44-03795, Island Creek Coal Company; Mavisdale, Buchanan County, Virginia; July 15, 2003). It was determined that the air velocity at the belt drive where the fire started was in excess of 1,100 fpm. Testimony given during the fire investigation indicated that this velocity adversely affected the dispersion of the dry-powder chemical fire suppressant during the fire. MSHA's accident investigation report stated that, “Section 17 of the National Fire Protection Association handbook assumes that the protected area will be guarded from adverse air flow influences unless engineering considerations are made for ventilation which would assure proper location and rates of chemical application” (MSHA's Non-Injury Mine Fire Accident Report, Pg. 22). By including this provision, we are assuring the compatibility of velocity caps with fire suppression systems to maintain protections afforded to miners.

Like the proposed rule, final § 75.350(b) addresses the safety requirements that apply when belt air is used to ventilate a working section or an area where mechanized mining equipment is being installed or removed. Final paragraph (b)(1) requires that the mine operator equip the belt entry with an AMS installed, operated, and examined and maintained as specified in § 75.351.

One commenter suggested that MSHA include the following requirements: safeguard AMS cables by installing Kellam grips (braided wire cable securing device) any time a cable enters or exits a box; securely mount outstations to withstand an explosion; require that a six-foot loop of cable be hung in every crosscut during cable installation on a shear-pin hanger to prevent quick-snapping of the cables in the event of an explosion; additional standards for cable installation need to be developed and followed; and testing with known forces on hard-mount versus flexible-mount sensors. These suggestions are focused on the components of the system being able to withstand explosion forces. MSHA did not propose these requirements and has not included them in the final rule because the purpose of early-warning fire detection systems is to provide early warning of fire in the belt entry. The ability of some system components to withstand the forces of an explosion will not guarantee additional protection

to miners in mines that use belt air to ventilate working sections and setup or removal areas.

In addition, based on a commenter's request for clarification concerning battery backup, we have referenced § 75.1600-2(c) in § 75.351(r) when the AMS is used as a communication system. It was MSHA's intent to require operation of the system up to 4 hours after removal of power to the belt, but not to specify that the system be powered by batteries where other alternatives may be as effective. There were no additional comments specific to proposed § 75.350(b)(1); the language in the final section remains as proposed.

Paragraph (b)(2) of the final rule requires the training of all miners annually in the basic operating principles of the AMS, including the actions required in the event of activation of a system alarm. This training must be conducted before miners work underground. This training must be conducted as part of a miner's part 48 new miner training (§ 48.5), experienced miner training (§ 48.6), annual refresher training (§ 48.8), or training conducted as part of the approved emergency evacuation and firefighting program of instruction, § 75.1502. The training should include the purpose of the system, the type of information that it provides, and what responses to specific signals from the AMS are necessary.

The proposed provision received much comment regarding the appropriate training and the need for drills. Generally, commenters expressed concern about an increase in the number of subjects to be covered in the annual eight-hour training session required by 30 CFR part 48. They contend that it is difficult to incorporate new standards, such as the new emergency evacuations standard (§ 75.1502), or requirements contained in new granted petitions into this training time period. Many of the commenters believed there was a need for drills and simulations in the training. MSHA agrees that drills increase the effectiveness of fire-fighting response and currently requires drills in existing standards. Currently both existing § 75.383—Escapeway maps and drills and § 75.1502—Mine emergency evacuations and firefighting program of instruction include a requirement that the mine operator conduct a drill based on the mine's emergency evacuation and firefighting program of instruction. Including drills in this final rule would duplicate these existing requirements.

The Agency's response to these commenters is that current training requirements in part 48 are sufficient to train miners and that the drill requirements in existing standards are sufficient to give miners practical experience in the mine during non-emergency situations. This provision increases protection for miners working at mines with granted petitions. Such granted petition requirements state that “* * * miners shall be trained in proper evacuation procedures, including instruction and drills in evacuation and instruction in precautions to be taken for escape through smoke.” In addition, “Personnel stationed at the surface location shall also be trained in the operation of the carbon monoxide monitoring system and in the proper procedures to follow in the event of an emergency or malfunction and, in that event, shall take appropriate action immediately.”

The proposed language was that “All miners, including newly hired miners must be trained annually in the basic operating principles of the AMS, including the actions required in the event of activation of a system alarm. This training may be conducted as part of a miner's 30 CFR part 48 new miner training (§ 48.5), experienced miner training (§ 48.6), or annual refresher training (§ 48.8).” Due to the large number of comments received on this proposed language, MSHA has clarified the language of this provision to more clearly express that all miners must receive this training prior to any work underground in a mine that uses belt air to ventilate working sections or areas where mechanized mining equipment is installed or removed. Existing part 48 training requirements already include training on the use of mine communication systems and warning signals. While the proposed rule suggested that this training could be done outside part 48 training, a further review of existing part 48 indicates that this training is currently required. The AMS is considered by this final rule to be a communication system that generates alert and alarm signals, or warning signals, in response to the presence of products of combustion and methane. The final rule states “All miners must be trained annually in the basic operating principles of the AMS, including the actions required in the event of activation of any AMS alert or alarm signal. This training must be conducted prior to working underground in a mine that uses belt air to ventilate working sections or areas where mechanized mining equipment is installed or removed. It must be conducted as part of a miner's part 48 new miner training (§ 48.5), experienced miner training (§ 48.6), or annual refresher training (§ 48.8).”

We have added the term “of any AMS alert or alarm signal” instead of “any system alarm” to clarify the possibility that miners on working sections may act as appropriate personnel have to investigate malfunction or alert signals. It is the responsibility of the mine operator to assure that these training requirements are met.

Final paragraph (b)(3) is unchanged from the proposed rule. It requires that the concentration of respirable dust in the belt air course be maintained at or below 1.0 mg/m

because air in the belt entry is intake air. A permanent designated area (DA) for dust measurements must be established at a point no greater than 50 feet upwind from the section loading point in the belt entry when the belt air flows over the loading point or no greater than 50 feet upwind from the point where belt air is mixed with air from another intake air course near the loading point. We require that this DA be specified and approved in the mine ventilation plan.

Two commenters submitted information on this provision. One commenter suggested that the DA should be located at the tailpiece or just inby the tailpiece in order to give a accurate representation of the dust exposure in the entry. Another commented that in the mine where he works, this level is exceeded because the use of belt air increases respirable and nonrespirable coal dust exposure. However, the commenters did not provide data to support their claims or to refute studies conducted by NIOSH and MSHA which show that dust exposures were not increased by the use of belt air above allowable levels. The existing standard, § 70.100(b), specifies that the average concentration of respirable dust in the intake airways within 200 feet of working faces of each section must be continuously maintained at or below 1.0 mg/m

in intake air. However, the use of the air from the belt air course as intake air to ventilate working sections or setup and removal areas requires that coal dust sampling be conducted at a location prior to the air reaching these areas or before mixing with other intake air. This means that sampling must be conducted at a point no greater than 50 feet upwind from the section loading point or no greater than 50 feet upwind from the point where belt air mixes with air from another intake air course near the loading point. This new provision is not in conflict with § 70.100(b) because this is an additional requirement to measure the concentration of respirable dust in only the belt air. Therefore, the language

of this final rule remains as proposed and will provide the same level of protection as the existing standard.

Paragraph 75.350(b)(4) requires monitoring of the primary escapeway as described under § 75.351(f), that is, for CO or smoke within 500 feet of the working section or area where mechanized mining equipment is being installed or removed, and within 500 feet of the beginning of the panel. The sensor used to comply with § 75.351(f) may be used to comply with this § 75.350(b)(4) if located in the primary escapeway within 500 feet of the working section or within 500 feet of the beginning of the panel. The point-feed sensor required by § 75.350(d)(1) may be used to meet the requirement of § 75.350(b)(4) if the sensor is located within 500 feet of the beginning of the panel. Alarms activated by these sensors would warn miners of a fire in the primary escapeway upwind of the working section or setup or removal area and give them earlier warning and therefore more time to escape. These sensors will provide significant additional protection for a minimal cost.

One commenter contended that monitoring of the primary escapeway should not be tied into those areas of the mine using belt air to ventilate the working faces. However, as stated above, the intake escapeway is monitored to afford an additional level of protection; therefore, the language of this provision remains as proposed.

Paragraph 75.350(b)(5) is included to limit the use of belt air to areas developed using at least three entries for development in order to provide more protection because two-entry development is considered unique and requires additional protections. Therefore, all existing two-entry petition requirements are unaffected by this rule. Future two-entry mines will need to continue to file petitions to use belt air, since final § 75.350(a) prohibits placing the belt in the return. The Agency believes the two-entry mining system provides a unique set of issues and needs to be approved on a mine-by-mine basis in order to protect miners in these types of mines.

This section has been rewritten to clarify our intent because of concerns that two-entry developments would be affected by the proposed language. Our intention is still that in order for two-entry development systems to permit return air to flow over the belt, a petition for modification will be required. Commenters indicated two-entry mines should also be permitted to use belt air without a petition for § 75.350. We agree that although most of the same provisions of this final rule would apply to these mines, because the two-entry petitions for modification are filed under diminution of safety criteria and not alternate equivalent means (§ 44.4), the granting of such petitions goes beyond the safe use of belt air. In such petitions the mine operator states that development of a three-entry system would be more dangerous, or a diminution of safety, than to develop a two-entry system due to ground control conditions. The mine operator will need to file a petition for modification for § 75.350. Based on these comments, the wording of the proposed provision has been changed to clarify our intent from “the section must be developed with three or more entries”, to “the area of the mine with a belt air course must be developed with three or more entries.”

Paragraph (b)(6) requires in areas of the mine developed after the effective date of this final rule, that unless approved by the district manager, no more than 50% of the total intake air, delivered to the working section or to areas where mechanized mining equipment is being installed or removed, can be supplied from the belt air course. The proposed rule did not include this requirement; however, in the preamble, MSHA discussed the issue and concluded that pressure differential issues would be better addressed in the mine ventilation plan approval process. The intent of the proposed rule was that the design of the ventilation system would be specified in the mine ventilation plan. Most existing granted petitions limit the quantity of air from the belt entry to no more than 50 percent of the total section intake in areas of the mine developed after the effective date of the petition. This requirement was included in nearly all of the petitions granted since 1996. In these 37 granted petitions the mine operator needs to assure the integrity of all intake air courses is maintained, including the primary escapeway. The requirement helps to maintain the pressure drop from the primary escapeway (

i.e.

, higher pressure in the escapeway) to the belt air course. In addition, in the event that this pressure drop cannot be maintained, the requirement also helps to minimize the pressure drop from the belt air course to the primary escapeway. In the event of a fire in the belt air course, this requirement minimizes the contamination of the primary escapeway with the products of combustion.

Many commenters suggested that this requirement should be included in the final rule. Because of the number of commenters urging MSHA to include this requirement in the final rule, MSHA reconsidered this issue. We concluded that the ratio requirement to limit the contribution from the belt air course to total intake quantity to working sections and setup or removal areas should be included in the final rule. The new provision, § 75.350(b)(6), will help maintain the integrity of the primary escapeway. We also recognize, consistent with the granted petitions, that in some instances the portion of intake air maintained in the belt air course may need to exceed 50 percent of the total. In these instances we believe the district manager must have the authority to approve greater contributing quantities in the mine ventilation plan. A corresponding provision has been added to § 75.371. The location for measurements to determine compliance with this provision must be specified in the mine ventilation plan as required by new § 75.371(kk).

The magnitude of leakage between air courses is a function of both the pressure drop across the stopping line separating the air courses, and the resistance of the stopping to air flow. In the event of a fire, a very low pressure drop with poorly constructed or maintained stoppings can be a greater danger to miners than a higher pressure drop with substantial stopping integrity. This hazard is created due to the leakage of the products of combustion through the poorly constructed or maintained stoppings. The products of combustion will not contaminate the adjacent entry as fast through well constructed and maintained stoppings. Stopping construction and maintenance is addressed in existing § 75.333. We believe that these provisions are sufficient for stopping construction and maintenance in all coal mines.

MSHA has included a new provision, under § 75.350(b)(7), that requires the use of directional lifelines in return entries designated as alternate escapeways. These lifelines must meet requirements in the new section, § 75.380(n). A directional lifeline is most likely a rope made of durable material; marked with a reflective material every 25 feet; located in such a manner for miners to use effectively to escape; and have directional indicators, signifying the route of escape, placed at intervals not exceeding 100 feet. It should be noted that the Advisory Committee's recommendation was to install and maintain lifelines in all underground coal mines, regardless of the use of belt air. The recommendation specified that lifelines had to clearly designate the route of escape. Discussion in the Advisory Committee's report suggested the use of directional

cones to increase the effectiveness of lifelines. In the proposed rule, MSHA solicited information from the public concerning the use and maintainability of lifelines.

Currently, four granted petitions require the use of lifelines in return entries used as alternate escapeways. Many commenters from government, industry, and labor responded to MSHA's request for information on lifelines.

NIOSH commented that lifelines can improve the likelihood of escape from mine fires and suggested that MSHA consider an additional requirement for the installation of lifelines in all escapeways, not just alternate escapeways in return air courses at mines using belt air.

Some commenters testified at the rulemaking hearings that it is difficult to maintain lifelines installed in escapeways where mobile equipment is used, because moving equipment can damage lifelines. One commenter suggested that the idea of lifelines has merit, and if they are used, they must be maintained. Another commenter suggested that lifelines be used in alternate escapeways, not in primary escapeways where equipment transport could damage them. The lifeline at the commenter's mine is located in the main returns and is routed to the closest portal thus avoiding damage from mobile equipment. Other commenters recommended that the use of lifelines is best considered under a separate revision of § 75.380—Escapeways; bituminous and lignite mines.

Another set of commenters voiced disappointment that MSHA did not include a proposed provision that would require the use of lifelines in both primary and alternate escapeways and that these lifelines be maintained. They pointed out that many operations are currently required to install and maintain lifelines as part of the requirements of granted belt air petitions. They claim that MSHA's decision not to include lifelines in the belt air final rule would eliminate that protection, thus reducing safety for the miners working in these mines.

In addition, a witness at the public hearing in Washington, Pennsylvania, testified that the state of West Virginia requires the use of lifelines in a return air course if it is used as an escapeway. The witness reported that West Virginia law requires that lifelines be maintained in the escapeway up until the last open cross cut; be made of a durable material; and be marked with reflective tape once every 25 feet. The commenter also testified that he would like to see lifelines constructed of fire-proof material required in all underground coal mines. Another witness testified at the Birmingham, Alabama, public hearing that he was familiar with situations in other mines where the belts were burned in half and miners had to feel their way out. He is in favor of the use of lifelines in an alternate escapeway. It is his position that during a fire, lifelines could be essential to miners finding their way safely out of a mine.

These commenters maintain that, due to the lack of visibility, lifelines are necessary to escape a smoke-filled atmosphere. A miner testified that at MSHA's Mine Health and Safety Academy at Beaver, West Virginia, he received training for escape at the mine simulation laboratory under simulated smoke conditions. He noted that the lifeline used at MSHA's training facility was a valuable tool in getting him out of very thick smoke. A commenter testified that during the JWR No. 5 mine accident, two miners felt their way out of thick smoke by following a cable out of the mine.

Other miners also testified that the cost of lifelines is insignificant compared to the cost of buying a longwall drive unit or a continuous miner, and that maintenance costs associated with the lifelines are minor. MSHA concurs with the commenter that the cost of a lifeline is far less than that of a longwall unit. However, a longwall drive unit is not purchased to improve miner safety, whereas a lifeline is expected to improve miner safety.

Overall the commenters stated that lifelines could be useful in helping miners escape to the surface of the mine when smoke-filled atmospheres are present. After further review of the granted petitions, reviewing the comments on lifelines, and researching state regulations regarding lifelines, MSHA agrees with the commenters that lifelines can aid in escape during emergency situations, especially in instances of reduced visibility due to smoke. In heavy smoke, a miner can easily become disoriented and cannot determine the proper direction for escape. A directional lifeline gives the miner added safety by directing the miner through the smoke-filled entries to safety. MSHA also recognizes, as did commenters, that there can be maintenance difficulties with lifelines used in the intake entries where the more frequent use of mobile equipment can damage them. Therefore, MSHA, as noted earlier, has added a new requirement under § 75.380(n) to require the use of directional lifelines in return entries when used as alternate escapeways for mines that use belt air to ventilate active working sections and setup or removal areas (§ 75.350(b)(7)). The installation of lifelines in return escapeways will minimize maintenance problems because mobile equipment is seldom operated in return air courses. While the application of lifelines to all underground coal mines is beyond the scope of this rule, the Agency believes, based on the evidence presented during the course of this rulemaking, that it is appropriate to require the limited use of lifelines in this rule.

In the proposed rule, § 75.350(c) would have permitted point feeding air from an intake air course when a mine needs additional air in the belt air course, notwithstanding the provisions of § 75.380(g).

The final rule splits proposed paragraph (c) into two sections, paragraphs (c) and (d) to clearly indicate MSHA's intent. Paragraph 75.350(c) is derived from the proposed paragraph (c) and allows the use of point feeding, notwithstanding the provisions of § 75.380(g), to add additional intake air to the belt air course through a point-feed regulator. The use of point feeding is permitted for all mines as long as the location and use of point feeds are approved in the mine ventilation plan.

Point feeding, as defined in this final rule and allowed under final § 75.350(c), is the process of providing additional intake air to the belt air course from another intake air course through a regulator. Point feeding allows the mine operator to increase airflow within the belt entry from other intake entries at underground locations. This additional air is needed in many mines to dilute methane, coal dust, and diesel-powered equipment exhaust. In addition, point feeding from one intake air course to another reduces the pressure differentials between these entries, which limits uncontrolled leakage from one air course to another air course. Sometimes providing additional air to the belt air course to increase air velocity in the belt entry is necessary to maintain the needed air velocity to assure compatibility with fire-detection sensor spacing. Point feeding must be approved in the mine ventilation plan under § 75.370 and conditions set out in the paragraph must be met.

MSHA believes that point feeds should only be used when needed and the number of point-feed regulators should be kept to a minimum to maintain the integrity of the primary escapeway. This is important because if a fire develops in the belt air course, the primary escapeway is protected from smoke contamination due to a minimum number of point-feed regulators which can be closed remotely. This eliminates

one set of leakage paths for smoke to contaminate the primary escapeway. Point feeding is not meant to compensate for a poorly designed or inadequately maintained ventilation system. Any intake air course can be considered as a source for point feeding. The same requirements will apply to all intake air courses in order to maintain the integrity of the air courses and to facilitate early-warning fire detection capability. Early warning of fire will be facilitated by the required installation of AMS sensors at the point-feed locations in both the intake and belt aircourses.

Paragraph (d) specifies six additional conditions, as proposed under § 75.350(c), which must be met by mine operators if the air through the point-feed regulator enters a belt air course which is used to ventilate a working section or an area where mechanized mining equipment is being installed or removed. The requirements of the final rule are the same as those of the proposed rule. Paragraph (d)(1), formerly proposed paragraph (c)(1), requires monitoring of the air current that will pass through the point-feed regulator for CO or smoke at a point within 50 feet upwind of the point-feed regulator. A commenter recommended that point feeds that introduce fresh air into the belt line need to be monitored regardless of the direction of air flow along the belt. Other commenters agreed that both sides of point feeds need to be monitored due to the dilution effect that air at high quantities have on the products of combustion. Another commenter claimed that MSHA's requirement to monitor CO levels in intake air prior to entering a belt line would not be necessary if the belt air would be monitored using two CO sensors, one located upwind of the point where fresh air is introduced to the belt air course, and one located within 1,000 feet of the point feed on the belt line. MSHA disagrees with this strategy. The protection provided by the sensor required in paragraph (d)(1) located in the intake upwind of the point-feed regulator is needed to identify where a fire is burning. MSHA agrees that both sides of the point-feed regulator need to be monitored, therefore the final language remains as proposed.

Paragraph (d)(2), formerly proposed paragraph (c)(2), requires monitoring of the belt air for CO or smoke at a point within 50 feet upwind of the mixing point with air from the point-feed regulator. The requirements are unchanged from the proposal. If the sensor in the intake air stream gives an alert or alarm signal, the fire in all likelihood will be in the intake air course upwind of the point-feed regulator. If the sensor in the belt entry gives the alert or alarm signal, the source of the contaminants (smoke or CO) is most likely in the belt entry upwind of the mixing point. With this knowledge, the mine operator can take whatever action is appropriate including investigation of the alert, possible evacuation of miners from the affected area, and implementation of firefighting efforts if warranted. Some commenters testified that this provision is not a requirement in existing petitions. This is not correct. Point feeding is a provision included in three recently granted petitions (2001). Monitoring requirements for point feeding have been included in two of these granted petitions.

Another commenter testified that the provision appears to be more appropriate to improving safety for point feeding intake air into a belt air course versus addressing the issue of using belt air at the face. The Agency agrees with this commenter. Approval requirements for point feeding under § 75.350(c) apply to all underground coal mines, regardless of whether or not belt air is used to ventilate working sections or setup or removal areas. Specific provisions under § 75.350(d) apply to underground coal mines that use belt air to ventilate working sections and setup and removal areas. These provisions maintain miner safety by increasing protection when point feeds are used to augment belt ventilation with other intake air that subsequently is delivered to working sections or setup and removal areas. Proper installation and maintenance of point-feed regulators, when used, are critical since they are a major component of a ventilation system. Since point-feed regulators are permanent ventilation controls, the provisions of § 75.333(e)(1) (Ventilation controls) apply. The wording of the final provision remains unchanged from that of the proposed rule.

Final paragraph (d)(3), which was derived from proposed paragraph (c)(3), clarifies the requirements for closing point-feed regulators. The point-feed regulator must be provided with a means to close the regulator from the intake air course without requiring a person to enter the crosscut where the point-feed regulator is located. The point-feed regulator must also be provided with a means to close the regulator from a location in the belt air course immediately upwind of the crosscut containing the point-feed regulator. The modifications to this language from the proposed rule include: “from the intake air course without requiring a person to enter the crosscut where the point-feed regulator is located” and “location in the belt air course immediately upwind of the crosscut containing the point-feed regulator” where the means to close the regulator are found.

This provision provides protection for those miners who may be required to close the point-feed regulator in case of an emergency. Remote closure is especially important if a fire starts in the intake air course upwind from the point-feed regulator. When the point-feed regulator is installed in such a manner, the person closing the point-feed regulator could approach from the upwind side of the regulator in the belt air course. This would enable the person to close the regulator without being exposed to the products of combustion coming through the point-feed regulator when a fire occurs in the intake air course. By closing the point-feed regulator under these conditions, the amount of contaminants entering the belt air course could be limited, thus providing miners additional time to escape.

Some commenters thought that the requirement mandating remote-closing of the regulator is unrealistic. The proposed rule did not mandate closure of the regulator, but rather that a means would be available to close the regulator if needed. Others questioned MSHA on how best to comply with the provision. Based on these comments, the language of this paragraph has been modified to clarify MSHA's intent. The point-feed regulator must be provided with a means to close the regulator, either manually or by remote control, from the intake air course without requiring a person to enter the air stream passing through the point-feed regulator. New language was added to this provision in response to comments, “In addition, the point-feed regulator must also be provided with a means to close the regulator from a location in the belt air course immediately upwind of the crosscut containing the point-feed regulator.”

Paragraph (d)(4), formerly proposed paragraph (c)(4), requires that a 300-fpm minimum air velocity be maintained through the point-feed regulator to prevent air reversals and reduce the potential for smoke rollback. No comments were received on this provision, therefore, it remains as proposed.

Paragraph (d)(5), formerly proposed paragraph (c)(5), requires the mine operator to submit a mine ventilation plan that includes the location of all point-feed regulators. The installation of the point-feed regulator must comply

with existing § 75.333 and must meet the performance requirement of remote closure as required by new § 75.350(d)(3). The individual location(s) and use of a point-feed regulator(s) must be approved in the mine ventilation plan to assure that hazardous situations are not created.

In addition, paragraph (d)(5) requires that the locations of point-feed regulators be shown on the mine ventilation map required by § 75.372 (Mine ventilation map). An accurate and complete map enables both the operator and MSHA to evaluate the ventilation system. During escape, it is important that miners be aware of all aspects of the ventilation system that might affect their ability to exit the mine safely, including the location of point-feed regulators. Knowledge of the locations of point-feed regulators will allow miners to efficiently close the ventilation controls in a timely manner to facilitate escape. Although a means for closure is required for all point-feed regulators, closing a regulator, as in making any air change during a mine emergency, should be done only when necessary.

Some commenters believe that this provision is unnecessary. They contend that it will create a number of unnecessary ventilation plan submissions. As an alternative, some commenters suggested that limiting point-feed regulators to one per conveyor belt flight would reduce the number of required plan submissions and allow mine operators to change belt ventilation to accommodate changing methane concentrations on belt lines in a timely manner. They claim that modifying the mine ventilation map to include these point feeds could be done in a timely manner. MSHA disagrees with the commenters. Based on MSHA experience, the installation of point feeds will be infrequent. Modifications to the mine ventilation plan will not be burdensome for operators, since they already submit plans to MSHA under existing § 75.370 that are reviewed twice a year by MSHA. Thus, final paragraph (d)(5) remains unchanged from the proposed rule.

Paragraph (d)(6), formerly proposed paragraph (c)(6), requires an AMS to be installed, operated, examined, and maintained as specified in § 75.351 when point-feed regulators are used. This requirement, which applies to underground coal mines using belt air to ventilate working sections and setup and removal areas, greatly increases protection for miners by increasing the level of atmospheric monitoring of areas where intake air is directed into a belt air course, thereby increasing the ability of the mine operator to detect fires before they can develop into a serious threat to miners and mine property. No comments were received on this provision, and the provision remains unchanged from that of the proposed rule.

Section 75.351 Atmospheric Monitoring Systems

This section of the final rule establishes the installation, location, examination, maintenance, and operational requirements for AMSs. The proper operation of an AMS is the cornerstone on which the safe use of belt air, and other provisions in this final rule, is based. Current AMS technology has proven itself to be reliable. Since 1978, the year when an AMS was first required as a condition for the granting of a belt air petition, we have included performance criteria for an AMS as part of each granted belt air petition. As AMS technology has evolved, the performance requirements in the granted petitions have also evolved. Performance requirements are included in this final rule.

Final paragraph (a) requires that an AMS be in operation whenever personnel are underground and an AMS is used to fulfill the requirements of §§ 75.323(d)(1)(ii), 75.340(a)(1)(ii), 75.340(a)(2)(ii), 75.350(b), 75.350(d), or 75.362(f). At those times the AMS must be operating and a designated AMS operator must be on duty at a location on the surface of the mine where audible and visual signals from the AMS must be seen or heard and the operator can promptly respond to these signals. The Agency intends that “audible” means able to clearly hear the signal above the noise of machinery as required by the National Fire Code (1967) which was incorporated by reference in § 75.1103-2 (1972). It is intended that “visual” means clearly seen as required by language found in nearly all granted petitions. This language is slightly modified from the proposed rule by specifically indicating that both audible and visual AMS signals must be provided to the surface location. Also, the word “can” was replaced with “must” while “and” was replaced with “or.” It was the position of some commenters that the AMS operator should be able to “see or hear” AMS signals. It is their position that the AMS operator can do other tasks while monitoring the AMS signals. One commenter also suggested that requiring both signals was “regulatory overkill” and suggested that we include the phrase “and/or” to allow flexibility to operations that need both audible and visual AMS signals. However, this commenter's suggestion would not require that every mine operator provide both audible and visual signals. Both types of signals have been required by nearly all granted petitions. MSHA agrees that AMS operators can do other tasks while monitoring AMS signals. However, primarily because the AMS operator may be conducting other tasks, it is necessary that both visual and audible signals be available and of sufficient magnitude to alert the AMS operator who must always be in a position to either see or hear both types of AMS signals.

The final requirement of this paragraph is similar to existing § 75.351(d)(1), which requires a person designated by the mine operator be stationed at the surface location while anyone is underground. This final requirement clarifies when the AMS must be in operation and when the AMS operator must be at the designated surface location.

Generally, an AMS installed in accordance with §§ 75.350(b) or 75.350(d) monitors the mine atmosphere at all times that a belt air course is used to provide intake air to a working section or areas where mechanized mining equipment is being installed or removed when miners are underground. This requirement is usually independent of belt operation or coal production. This means the AMS must be monitoring the mine atmosphere whether or not the belt is running or coal is being produced, whenever belt air is provided to working sections and locations where mechanized mining equipment is being installed or removed while miners are underground.

Proposed paragraph 75.351(a) would have required “for extended idle periods exceeding 24 hours, when the belt is not operating, the requirements of §§ 75.350(b) or 75.350(c) would not apply after the initial 24 hour idle period.” We received many comments on this proposed requirement. Some commenters testified that the traditional period for monitoring the belt line after shutdown is 4 hours, not 24 hours. Other commenters testified that the belt line should be continuously monitored at all times if the air going down the belt line is being used to ventilate working sections. This is particularly relevant, they argued, when any miner is underground. One miner testified that during idle periods at his mine during vacations an estimated 200 miners are still underground. Another commenter stated that if the AMS system is off, because the belt has been down more than 24 hours, air will still be traveling along the belt and passing through common entries where miners may be doing nonproduction jobs, such as

maintenance or deadwork. It was pointed out that the deadly explosions at JWR No. 5 mine occurred during a maintenance shift. Also, commenters testified that many smoldering fires have been found during periods that the belt has been down; indicating a need to keep the AMS operational. Therefore, some commenters argued that the AMS must be kept operational and records kept during idle periods.

As previously stated, we have reviewed our report on the JWR No. 5 mine accident. It was determined that although the accident had occurred on a maintenance shift, the accident was not related to the use of belt air.

Due to commenter concerns, and the acknowledgment that this issue is covered under existing § 75.1103-4—Automatic fire sensor and warning device systems; installation; minimum requirements, the proposed language has been deleted from the final rule. The proposed requirement was not intended to supersede the requirements in § 75.1103-4(e), which applies to all mines with belts. Section 75.350(a) applies only to mines that use belt air to ventilate working sections and areas where mechanized equipment is being installed or removed.

In addition, the last sentence in the proposed provision, “All provisions of this section will become applicable one hour prior to belt start-up following this idle period” has also been deleted since the idle period requirement included in the proposed rule has been deleted from the final language. One commenter was not sure this requirement was necessary. We agree with the commenter that the requirement was not necessary, and therefore it has been deleted.

A number of comments were received urging that we

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