MSHA Federal Register Document
Rules and Regulations

Volume 61, Number 18, Page 2543
Section 75.370 Mine Ventilation Plan; Submission and Approval

J. Davitt McAteer, Assistant Secretary for Mine Safety and Health


          Mine ventilation plans are a long recognized means for addressing safety and health issues that are mine specific. Individually tailored plans, with a nucleus of commonly accepted practices, are an effective method of regulating such complex matters as mine ventilation and roof control. Section 75.370 requires that each mine operator develop and follow a ventilation plan that is approved by MSHA and that is designed to control methane and respirable dust in the mine. Section 75.370 further requires that the plan be suitable to the conditions and mining system at the mine. In addition, Sec. 75.370 provides the procedures for submittal, review and approval of the plan to assure that the plan for each mine will address the conditions in that mine.
         In this final rule, MSHA revises the existing plan submission and approval process to provide an increased role for the representative of miners in the mine ventilation plan approval process. This revision is consistent with the statutory purpose that miners play a role in safety and health.
          The final rule redesignates existing paragraphs (b)(1) through (f) as (c)(1) through (g), revises paragraphs (a)(3), (c)(1), and (f), and adds a new paragraph (b). The proposal would have modified the existing rule by providing that the representative of miners would receive a copy of the proposed mine ventilation plan or proposed revisions at the time of submittal to MSHA, and the approved plan upon approval by MSHA. The existing rule provided that the submitted plan and the approved plan were to be made available to the miners representative. Another proposed change was to specify the length of time the submitted plan and the approved plan would be posted at the mine. A new paragraph (b) would allow for timely comments on the submitted plan from the miners representative. Representatives of miners would receive written notice of plan approval. The final rule, for the most part, adopts the proposed rule. However, the final rule requires that the miners representative be notified of the submittal of a mine ventilation plan and revisions to a plan 5 working days prior to submittal and that the representative of miners be provided with a copy of the plan upon request. It also requires that MSHA provide a copy of miners representative comments to the mine operator upon request.
         Final rule paragraph (a)(3) is divided into (a)(3)(i), (a)(3)(ii), and (a)(3)(iii) and contains new requirements in (a)(1)(i) and (a)(1)(iii). Paragraph (a)(3)(i) requires that the mine operator notify the representative of miners that a mine ventilation plan or a plan revision is to be submitted to the District Manager for approval. This notification must be given at least 5 days prior to submission. Paragraph (a)(3)(i) further requires that the operator provide a copy of the plan or revision to the representative of miners at the time of notification, if requested. Paragraph (a)(3)(ii) requires that the proposed plan be made available for review by the representative of miners, and paragraph (a)(3)(iii) requires that the proposed plan or revision be posted on the (Page 9807) bulletin board at the mine and remain posted until it is approved, withdrawn, or denied.
          Commenters representing both operators and labor suggested that the proposed plan or revision should be provided to the representative of miners prior to being submitted to the district manager for approval. One commenter suggested that the proposed plan or revision be provided to the representative of miners 10 days prior to submittal and stated that this could speed up the approval process by allowing the miners affected to investigate the proposed change and by permitting the operator and the representative of miners the opportunity to reconcile differences prior to the operator's seeking approval.
          The commenter pointed out that some existing wage agreements have adopted such a requirement. The commenter suggested that the rule should also include such a requirement because operators do not always comply with the requirements of the agreement. This commenter further suggested that there have been instances where plans have been revised and acted upon before the representative of miners was aware that a revision was to be made. Other commenters suggested that the proposed plan or revision be provided 3 days prior to submittal.
         These commenters expressed different reasons for the suggestion. One of these commenters stated that the industry has historically maintained that since the plan is submitted to the district manager for approval, and developed by the mine operator, the requirement to provide copies to other parties is contrary to the Mine Act. However, the commenters further stated that their suggestion reflected an attempt to balance all interests and resolve this matter.
          These comments are constructive and MSHA has used all of them to fashion a final rule which is consistent with the statutory purpose and responsive to the mining community. One commenter attempted to relate the rule to terms of a wage and hour agreement. MSHA does not intend or have authority to affect any wage and hour agreement. MSHA believes that the involvement of the miners and their representative in the plan approval process will improve the health and safety of the Nation's coal miners. As suggested by commenters, miners who work under the mine ventilation plan are often in the best position to know the effect of proposed revisions. MSHA has long recognized the importance of input from the miners and their representatives in the plan-approval process.
         The preamble to the existing standard discusses the role of miners and their representatives in the development of mine ventilation plans in detail. MSHA continues to believe that miners have a stake in the implementation of the ventilation plan at each mine.
         The operator continues to be the party responsible for developing the mine ventilation plan and MSHA continues to be responsible for reviewing and approving the plan. The proposed rule, in paragraph (a)(3)(i), would have required the operator to provide a copy of a proposed mine ventilation plan or any proposed revision to the representative of miners at the time of submittal to MSHA. The final rule requires the operator to notify the representative of miners of the submittal of the proposed plan or revision at least 5 working days prior to submittal to the district manager. In addition, a copy is to be provided to the representative of miners upon request.
          In response to comments, paragraph (a)(3)(i) is further revised in the final rule to reflect that there are occasions when mine ventilation plans must be submitted and reviewed within a very short time frame.
          Paragraph (a)(3)(ii) of the final rule retains the requirement that a copy of the proposed plan or any proposed revisions be made available for inspection by the representative of the miners. Although some commenters thought this was superfluous in light of the requirement in paragraph (a)(3)(i), MSHA believes that this requirement facilitates the overall approval process.
          Paragraph (a)(3)(iii) of the final rule retains the existing requirement that copies of the proposed plan and proposed revisions be posted on the mine bulletin board and clarifies that posting is required at the time of submittal. MSHA believes that the posting requirement is necessary to assure that all miners at a mine will have the opportunity to review the proposed plan or revision and provide input during the review process. One commenter suggested that proposed plans or proposed revisions be required to remain posted for only 30 days from the time of submittal.
         This suggestion has not been included in the final rule because the mine ventilation plan impacts miners safety and health and it is important for miners to know which plan provisions are in effect versus those which have not been approved. Another commenter suggested that proposed plans and revisions be posted 10 days prior to submittal to MSHA. This recommendation has not been included in the final rule to assure.
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