[Federal Register Volume 73, Number 251 (Wednesday, December 31, 2008)]
[Rules and Regulations]
[Pages 80655-80700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30669]



[[Page 80655]]

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Part V





Department of Labor





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Mine Safety and Health Administration



30 CFR Parts 7 and 75



Refuge Alternatives for Underground Coal Mines; Final Rule

Federal Register / Vol. 73, No. 251 / Wednesday, December 31, 2008 / 
Rules and Regulations

[[Page 80656]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 7 and 75

RIN 1219-AB58


Refuge Alternatives for Underground Coal Mines

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: The final rule establishes the Mine Safety and Health 
Administration's (MSHA) requirements for refuge alternatives in 
underground coal mines and the training of miners in their use. It 
includes testing and approval requirements. The final rule implements 
section 13 of the Mine Improvement and New Emergency Response (MINER) 
Act of 2006. Consistent with the MINER Act, it includes MSHA's response 
to the National Institute for Occupational Safety and Health (NIOSH) 
Report on Refuge Alternatives.

DATES: Effective Date: The final rule is effective on March 2, 2009.
    The incorporation by reference of certain publications listed in 
the rule is approved by the Director of the Federal Register as of 
March 2, 2009.

Compliance Dates

    1. Sec.  7.503--For any approval consideration by MSHA in the first 
year, an application for approval of a refuge alternative or component 
shall be submitted no later than April 30, 2009.
    2. Sec.  75.1502(c)(3), (c)(4)(vi), (c)(8), and (c)(10) through 
(12)--For mines with refuge alternatives in the mine on the effective 
date of the rule (60 days after date of publication), the operator 
shall submit a revised program of instruction to the appropriate 
District Manager for approval by April 30, 2009, and conduct initial 
mine emergency evacuation training and drills on the refuge 
alternatives and components, under Sec.  75.1504(b)(3)(ii), (b)(4)(ii), 
and (b)(6) through (10), within 30 days of program approval. For mines 
with no refuge alternatives in the mine on the effective date of the 
rule March 2, 2009, the operator shall submit a revised program of 
instruction to the appropriate District Manager for approval within 30 
days of receipt of the refuge alternatives or components, and conduct 
initial mine emergency evacuation training and drills on the refuge 
alternatives and components, under Sec.  75.1504(b)(3)(ii), (b)(4)(ii), 
and (b)(6) through (9), within 30 days of program approval.
    3. Sec.  75.1504(c)(3)--For mines with refuge alternatives in the 
mine on the effective date of the rule March 2, 2009, the operator 
shall complete the initial annual expectations training on the refuge 
alternatives and components no later than December 31, 2009. For mines 
with no refuge alternatives in the mine on the effective date of the 
rule March 2, 2009, the operator shall complete the initial annual 
expectations training on the refuge alternatives and components no 
later than December 31, 2009, or within 60 days of receipt.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey at 
[email protected] (E-mail), 202-693-9440 (Voice), or 202-693-9441 
(Fax).

SUPPLEMENTARY INFORMATION: The outline of the final rule is as follows:

I. Introduction
    A. Statutory and Rulemaking Background
    B. Discussion of the Hazard
    C. Timeline for Implementation of the Final Rule
II. Section-by-Section Analysis
    A. Part 7 Approvals
    B. Part 75 Safety Standards
III. Regulatory Economic Analysis
    A. Executive Order 12866
    B. Population at Risk
    C. Costs
    D. Benefits
IV. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
V. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VI. Paperwork Reduction Act of 1995
VII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    C. Executive Order 12630: Government Actions and Interference 
with Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

I. Introduction

    This final rule is MSHA's response to the National Institute for 
Occupational Safety and Health (NIOSH) Report on Refuge Alternatives 
consistent with section 13 of the Mine Improvement and New Emergency 
Response (MINER) Act of 2006. The final rule requires that mine 
operators include refuge alternatives in the Emergency Response Plan 
(ERP) required by section 2 of the MINER Act. MSHA's objective, 
consistent with the MINER Act, is to improve the safety of mines and 
mining. This final rule improves mine operators' preparedness for mine 
emergencies and requires refuge alternatives underground to protect 
persons trapped when a life-threatening event occurs that makes escape 
impossible. Refuge alternatives also can be used to assist trapped 
miners in escaping from the mine after initial escape becomes 
impossible.
    MSHA developed this final rule based on Agency data and experience, 
NIOSH recommendations, research on available and developing technology, 
state regulations, and comments and testimony from the mining 
community. The final rule includes requirements for--
     Testing and approval of refuge alternatives and components 
of refuge alternatives;
     Assuring that refuge alternatives are readily available, 
capable of sustaining trapped miners for 96 hours, and maintained in 
operating condition; and
     Training miners to locate, deploy and use, maintain, and 
transport refuge alternatives.

A. Statutory and Rulemaking Background

    Section 2 of the MINER Act requires underground coal mine operators 
to develop and adopt a written Emergency Response Plan (ERP), which 
must be approved by MSHA. The ERP provides for the evacuation of all 
individuals endangered by an emergency and the maintenance of 
individuals trapped underground. All ERPs must provide for emergency 
supplies of breathable air for individuals trapped underground 
sufficient to maintain them for a sustained period of time.
    MSHA issued Program Policy Letter (PPL) No. P06-V-10 (October 24, 
2006) to implement section 2 of the MINER Act. The PPL provides 
guidance to mine operators for developing ERPs and to MSHA District 
Managers for approving ERPs. MSHA issued Program Information Bulletin 
(PIB) No. P07-03 (February 8, 2007) to provide additional guidance to 
be used in conjunction with the PPL. The PIB includes options for the 
quantity of breathable air that would be sufficient to maintain persons 
for a sustained period of time.

[[Page 80657]]

    Section 13 of the MINER Act provides that NIOSH conduct research on 
refuge alternatives and submit a report on the results of the research 
to the Secretary of Labor. NIOSH issued its report in January 2008.
    Section 13 of the MINER Act also provides that the Secretary of 
Labor--

    * * * provide a response to the Committee on Health, Education, 
Labor, and Pensions of the Senate and the Committee on Education and 
the Workforce of the House of Representatives containing a 
description of the actions, if any, that the Secretary intends to 
take based upon the [NIOSH] report, including proposed regulatory 
changes and the reasons for such actions.

    MSHA reviewed NIOSH's report and determined that refuge 
alternatives are practical and, when integrated into the mine's 
comprehensive escape and rescue plans, will increase the chance for 
survival for persons trapped in underground coal mines.
    MSHA published the proposed rule for refuge alternatives on June 
16, 2008 (73 FR 34140). MSHA held four public hearings on the proposed 
rule. The hearings were held on July 29 in Salt Lake City, UT; on July 
31 in Charleston, WV; on August 5 in Lexington, KY; and on August 7 in 
Birmingham, AL. The comment period closed on August 18, 2008.

B. Discussion of the Hazard

    In developing the final rule, MSHA reviewed a number of underground 
coal mine accident reports and evaluated its accident and injury data 
from 1900 through 2006. During that period, 264 miners, who were alive 
after a mine accident, died later during rescue or escape. MSHA has 
estimated that recent MSHA standards could have saved the lives of 43 
of these miners. Thus, for purposes of estimating benefits, this final 
rule could potentially have saved the lives of 221 miners over the 107 
year period. If refuge alternatives had been available, MSHA estimates 
that the range of lives saved would have been between a low of 25 
percent and a high of 75 percent. Using these estimates, the final rule 
potentially could save an average of from one to three lives every two 
years.
    The preamble to the proposed rule discussed a number of accidents 
that reflect typical emergency conditions, hazards, and issues in 
underground coal mines. The explosions at the Sago Mine on January 2, 
2006, and the Darby Mine No. 1 on May 20, 2006, which are especially 
relevant to this rulemaking, are summarized below.
    The explosion at the Sago Mine killed one miner instantly and 
destroyed seals and filled portions of the mine with toxic levels of 
carbon monoxide. The remaining 12 miners barricaded themselves on the 
section when their attempts to evacuate were unsuccessful. The 
barricade was constructed in an area with high concentrations of carbon 
monoxide. Eleven miners died before they could be rescued. One miner 
was rescued, but was severely injured.
    The force of the explosion at the Darby Mine No. 1 killed two 
miners. Four other miners encountered thick smoke and donned their 
SCSRs while attempting to evacuate. The miners eventually became 
separated and three died from carbon monoxide poisoning.

C. Timeline for Implementation of the Final Rule

    MSHA is providing delayed compliance dates for some sections to 
give mine operators and applicants the time needed to comply with the 
stated requirements.
    1. By April 30, 2009, an application for approval of a refuge 
alternative or component must be submitted for first year approval 
consideration by MSHA in accordance with Sec.  7.503. MSHA expects that 
first year approvals will be completed by December 31, 2009.
    2. By April 30, 2009, mine operators must submit a revised program 
of instruction to the appropriate District Manager for approval in 
accordance with Sec.  75.1502. The operator must conduct initial mine 
emergency evacuation training and drills on refuge alternatives and 
components, under Sec.  75.1504(b)(3)(ii), (b)(4)(ii), and (b)(6) 
through (10), within 30 days of program approval.
    If the refuge alternatives necessary for the training are not yet 
available, MSHA will accept, as good faith evidence of compliance with 
the final rule, a valid, bona fide, written purchase order with a firm 
delivery date for the refuge alternatives. The mine operator must 
submit a revised program of instruction to the appropriate District 
Manager for approval in accordance with Sec.  75.1502 within 30 days of 
receipt of the refuge alternatives. The operator must conduct initial 
mine emergency evacuation training and drills on refuge alternatives 
and components, under Sec.  75.1504(b)(3)(ii), (b)(4)(ii), and (b)(6) 
through (10), within 30 days of program approval.
    3. By December 31, 2009, mine operators must complete the initial 
annual expectations training on the refuge alternatives and components 
required by Sec.  75.1504(c). However, if the refuge alternatives or 
components necessary for the training are not yet available, MSHA will 
accept, as good faith evidence of compliance with the final rule, a 
valid, bona fide, written purchase order with a firm delivery date for 
the refuge alternatives and components. The mine operator must complete 
the initial annual expectations training on the refuge alternatives and 
components no later than December 31, 2009 or within 60 days of 
receipt.

II. Section-by-Section Analysis

    In developing this final rule, MSHA relied on the NIOSH report on 
refuge alternatives; research studies on various refuge alternatives; 
accident investigation reports, especially those for the 2006 Sago and 
Darby mine explosions; as well as public comments, hearing transcripts, 
and supporting documentation from all segments of the mining community, 
including States that already require refuge alternatives.

A. Part 7 Approvals

    The approval requirements for refuge alternatives are set out in 30 
CFR Part 7--Testing by Applicant or Third-Party. The final rule 
provides approval criteria, allows alternatives for satisfying the 
requirements, and promotes the development of new technology. It 
provides requirements for a complete self-contained refuge alternative 
and the following components:
     Structural, which creates an isolated atmosphere and 
contains the other integrated components.
     Breathable air, which includes the means to supply safe 
concentrations of oxygen.
     Air-monitoring, which provides occupants of the refuge 
alternative with devices to measure the concentrations of oxygen, 
carbon dioxide, carbon monoxide, methane, and other harmful gases, as 
applicable; and
     Harmful gas removal, which provides for removal of harmful 
gases from the refuge alternative.
    Refuge alternatives also must include provisions for 
communications, lighting, sanitation, food, water, and first aid. These 
provisions must be approved in the ERP.
    MSHA has a 20-year history of administering the part 7 approval 
program, which has reduced product testing costs and improved approval 
efficiency. Under the final rule, new subpart L of part 7 requires that 
an applicant or a third-party must test the refuge alternative or 
component according to the final rule. The applicant, usually a 
manufacturer, provides the required information and test results to 
MSHA to demonstrate that the refuge alternative or component meets the 
applicable technical requirements and test criteria. MSHA will issue an 
approval for a refuge

[[Page 80658]]

alternative or one of its components based on the Agency's evaluation 
of the information and test results submitted with the approval 
application. The MSHA approval under part 7 assures operators and 
miners that the refuge alternative can be used safely and effectively 
in underground coal mines and that the components can be used safely 
with each other.
    The existing general provisions of subpart A of part 7 (Sec. Sec.  
7.1 through 7.10) apply to the testing and approval of refuge 
alternatives. Existing Sec.  7.3(f) addresses the certification 
statement and requires that each application for original approval, 
subsequent approval, or extension of approval of a product shall 
include a certification by the applicant that the product meets the 
design portion of the technical requirements, as specified in the 
appropriate subpart, and that the applicant will perform the quality 
assurance functions specified in Sec.  7.7. Consistent with the 
existing requirement, the applicant must provide a certification for 
refuge alternatives and components.
    In addition, existing Sec.  7.8 addresses post-approval product 
audits and requires that, on request, the approval-holder make a 
product available to MSHA for audit at no cost to MSHA, but no more 
than once a year except for cause. Consistent with the existing 
requirement, the approval-holder must provide a refuge alternative or 
component to MSHA for audit.
Section 7.501 Purpose and Scope
    Final Sec.  7.501, like the proposal, provides that subpart L 
establishes requirements for MSHA approval of refuge alternatives and 
components for use in underground coal mines. It states that the 
purpose of approved refuge alternatives is to provide a life-sustaining 
environment for persons trapped underground when escape is impossible. 
Refuge alternatives also can be used to facilitate escape by sustaining 
trapped miners until they receive communications regarding escape 
options or until rescuers arrive.
    MSHA considers refuge alternatives as a last resort to protect 
persons who are unable to escape from an underground coal mine in the 
event of an emergency. NIOSH stated, in its report on refuge 
alternatives, that--

    * * * the potential of refuge alternatives to save lives will 
only be realized to the extent that mine operators develop 
comprehensive escape and rescue plans that incorporate refuge 
alternatives.

    Several commenters expressed concern that refuge alternatives have 
not been proven effective in an actual mine and that human subject 
testing is necessary for proper functioning and durability of the 
units. Some commenters requested that MSHA defer promulgating a final 
rule until human subject testing is completed. Commenters also 
questioned the use of models and calculations in lieu of human subject 
testing. However, other commenters stated that human subject testing is 
not necessary nor is it the best proof of viability. One commenter 
stated that ``there is enough data available to properly simulate the 
metabolic heat and breathing of humans without necessarily subjecting 
humans to the risks of a manned test'' and that ``[t]his is not to say 
that some manned testing may not be valuable to validate portions [of] 
the test protocol and for training development.''
    The requirements of the final rule are extrapolated from existing 
Federal and State requirements and from published reports from the U.S. 
Bureau of Mines and NIOSH. In addition, in developing the final rule, 
MSHA consulted with experts and other knowledgeable professionals, and 
evaluated the comments and testimony on the proposal. Based on MSHA's 
knowledge and experience, the Agency believes that the results of human 
subject testing, which may be appropriate at some later date, are not 
necessary for the final rule. Accordingly, the requirements of the 
final rule are not based on human subject testing.
    MSHA continues to work with NIOSH on new technology requirements in 
the MINER Act. MSHA is aware that NIOSH is developing a protocol and 
seeking approval for human subject testing. If approved, the results of 
this human subject testing will not be available prior to the effective 
date of the final rule. The Agency will consider the results of such 
testing for future rulemaking, if warranted.
    MSHA has analyzed various design specifications of manufactured 
refuge alternatives and has developed approval requirements that 
manufacturers must follow. Except as otherwise provided in the rule, 
mine operators are permitted to use only refuge alternatives and 
components for which the design specifications have been approved by 
MSHA. MSHA recognizes that, under the Mine Act, States generally may 
enact laws or prescribe by regulation additional refuge alternative 
requirements to the extent they are more stringent than MSHA's 
standards. Such laws and regulations are limited by principles of 
conflict preemption to requiring specific refuge alternatives that have 
been approved by MSHA, and cannot under any circumstances require the 
use of a refuge alternative that has not been approved. Moreover, it is 
MSHA's intent that its approval of specifications for a refuge 
alternative preempts private tort litigation questioning the propriety 
of those specifications. MSHA weighed various trade-offs in setting 
requirements for approved refuge alternatives and components, such as 
those involved in arriving at space and volume requirements and 
strength requirements. Refuge alternatives and components cannot be 
altered once approved without seeking potentially time-consuming 
approval for modifications. Tort suits deeming approved designs 
insufficient could introduce state-by-state uncertainty to national 
manufacturers, thereby threatening the steady commercial supply of 
refuge alternatives and components and potentially leaving miners 
unprotected.
Section 7.502 Definitions
    Final Sec.  7.502, like the proposal, establishes a number of 
definitions because refuge alternatives represent a relatively new 
technology for underground coal mines and the terminology may not be 
widely understood.
    One commenter requested that a definition of ``component'' and 
``examinable'' be included. MSHA does not believe that the Agency needs 
to define the term ``component'' because several sections in the final 
rule identify the four types of components--structural, breathable air, 
air-monitoring, and harmful gas removal--and their specific 
requirements. The final rule also clarifies examinations and 
inspections for structural components.
Apparent Temperature
    The final rule clarifies the proposal, and defines apparent 
temperature as the measure of relative discomfort due to the combined 
effects of air movement, heat, and humidity on the human body. The 
final rule clarifies MSHA's intent that the term is used to measure 
relative discomfort. When no air movement is present, the apparent 
temperature equals the heat index. As heat and humidity increase, the 
amount of evaporation of sweat from the body decreases. MSHA received a 
comment that the Agency should specify the method for determining 
apparent temperature as part of the definition. The Agency has not 
specified the method in the definition, which is unchanged; however, 
the apparent temperature is addressed in the final rule under Sec.  
7.504(b).

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Breathable Oxygen
    The final rule, like the proposal, defines breathable oxygen as 
oxygen that is at least 99 percent pure with no harmful contaminants. 
Some commenters suggested that MSHA provide performance-based approval 
criteria to promote innovative new technology, and that the proposal 
was unnecessarily restrictive. The final rule, like the proposal, 
includes necessary parameters for oxygen purity.
    One commenter suggested that the final rule include a definition of 
breathable air. MSHA issued a Program Information Bulletin on 
Breathable Air (PIB P07-03), which addressed the recommended standards 
for breathable air as identified by the American National Standards 
Institute (ANSI)/Compressed Gas Association (CGA) Commodity 
Specifications for Grade D Breathable Compressed Air. Accordingly, the 
final rule does not define breathable air.
Flash Fire
    The final rule, like the proposal, defines flash fire as a fire 
that rapidly spreads through a diffuse fuel, such as airborne coal dust 
or methane, without producing damaging pressure. MSHA notes that a 
flash fire may occur in an environment, such as an underground coal 
mine, where fuel and air become mixed in adequate concentrations to 
combust. In an underground coal mine, a flash fire can be a rapidly 
moving flame front from a combustion explosion. In its report, NIOSH 
recommended that the fire resistance for refuge alternatives be 300 
[deg]F for 3 seconds. NIOSH based its recommendation on NFPA 2113-2007, 
the National Fire Protection Association's ``Standard on Selection, 
Care, Use, and Maintenance of Flame-Resistant Garments for Protection 
of Industrial Personnel Against Flash Fire,'' but advised that 
additional investigation is warranted.
    A flash fire is defined by NFPA 2113 as ``a fire that spreads 
rapidly through a diffuse fuel, such as dust, gas, or vapors of an 
ignitable liquid, without the production of damaging pressure.'' NFPA 
2113 also includes a longer explanation of flash fire in the Annex 
A.3.3.16. This explanation addresses flame temperatures for diffused 
fuel flash fires ranging from 1,000[deg] to 1,900 [deg]F. A commenter 
requested that MSHA clarify the definition of flash fire by adding that 
a flash fire is not an ongoing fire. MSHA has explained heat transfer 
and duration and believes the definition given is adequate. The final 
rule is unchanged.
Noncombustible Material
    The final rule, like the proposal, defines noncombustible material 
as material, such as concrete or steel, that will not ignite, burn, 
support combustion, or release flammable vapors when subjected to fire 
or heat. MSHA received one comment requesting modification of the 
proposed definition to include tent deployment information. MSHA has 
addressed this comment elsewhere in this preamble under final Sec.  
7.505(a)(6) and believes that the proposed definition is adequate. The 
final rule is unchanged.
Overpressure
    The final rule, like the proposal, defines overpressure as the 
highest pressure over the background atmospheric pressure that could 
result from an explosion, which includes the impact of the pressure 
wave on an object. MSHA notes that explosion pressures are normally 
expressed as an overpressure beyond standard atmospheric pressure. 
Standard atmospheric pressure is 14.7 pounds per square inch (psi) (one 
atmosphere) at sea level. For example, air pressure in a car tire is 
measured with a pressure gauge as 30 psi, which is an overpressure. The 
absolute pressure of the air inside the tire is 44.7 psi. One commenter 
supported and no commenters opposed the proposal.
Refuge Alternative
    The final rule, like the proposal, defines refuge alternative as a 
protected, secure space with an isolated atmosphere and integrated 
components that create a life-sustaining environment for persons 
trapped in an underground coal mine.
    One commenter requested that the proposed definition be modified to 
emphasize the importance of protecting persons from toxic gases 
entering the space prior to occupancy and to allow the use of an 
individual breathable air supply. Under the final rule, refuge 
alternatives must have an isolated atmosphere and life-sustaining 
environment. Another commenter requested that the term be defined with 
more clarity. MSHA believes that the definition as stated provides 
sufficient detail and concludes that no change to the final rule is 
necessary.
Section 7.503 Application Requirements
    Final Sec.  7.503(a), like the proposal, requires that an 
application include information to assure that MSHA can determine if a 
refuge alternative or component meets the technical requirements for 
approval, functions as intended, and is safe for use in an underground 
coal mine.
    Final paragraph (a)(1), like the proposal, requires that the 
application contain the refuge alternative's or component's make and 
model number, if applicable. This provision assists MSHA in identifying 
specific units or parts from different companies.
    One commenter requested that the final rule allow approval of 
design criteria rather than approval of specific models. MSHA has 
considered the implications of making this change, such as auditing 
critical characteristics and integration of components, and determined 
that no change to the rule is necessary.
    Final paragraph (a)(2)(i), like the proposal, requires that the 
application list the refuge alternative's or component's parts, and 
include the MSHA approval number for electric-powered equipment. With 
the approval number, MSHA would be able to verify that electric-powered 
equipment is either approved as permissible or, with respect to certain 
equipment such as air-monitoring equipment or gas detectors, is 
approved as intrinsically safe. MSHA received no comments on this 
provision.
    Final paragraph (a)(2)(ii), like the proposal, requires that the 
list of a refuge alternative's or component's parts in the application 
include each component's or part's in-mine shelf life, service life, 
and recommended replacement schedule. Comments concerning shelf life, 
service life, and replacement schedule are addressed elsewhere in this 
preamble under final Sec. Sec.  7.508(c)(4) and 75.1506(a)(3).
    Final paragraph (a)(2)(iii) clarifies the proposal and requires 
that the application list the refuge alternative's or component's parts 
that include materials, which have a potential to ignite, used in each 
component or part with their MSHA approval number. The proposal would 
have required that the application list the materials used in each 
component or part with their MSHA approval number or statement that the 
materials are noncombustible. One commenter stated that not all 
materials used in refuge alternatives or components can be 
noncombustible. Another commenter requested clarification of 
noncombustible materials and MSHA approved electrical components. The 
final rule clarifies that the MSHA approval number must be included for 
materials that have a potential to ignite. This provision helps assure 
that materials are safe for use in an underground coal mine. The 
hazardous nature of an underground coal mine requires that

[[Page 80660]]

sources of ignition be eliminated. The confined space of an underground 
coal mine necessitates that materials be designed so that they will not 
contribute to a fire or give off harmful gases when exposed to heat.
    Final paragraph (a)(2)(iv) was not in the proposed rule. It 
requires that the application list the refuge alternative's or 
component's parts that include a statement that the component or part 
is compatible with other components; and upon replacement, is 
equivalent to the original component or part.
    Commenters expressed concern regarding the reliability of refuge 
alternatives that consist of multiple separate components. Some 
commenters opposed mixing different models of breathable air components 
because miners might get confused during an emergency and be placed at 
greater risk.
    This new provision is responsive to comments and clarifies MSHA's 
intent to assure that components or parts that are approved must be 
interchangeable or must integrate with the other components or parts in 
the refuge alternative so that the refuge alternative will continue to 
operate as intended. Under the final rule, if the component or part is 
a replacement, it must be equivalent to the original component or part. 
The component or part must be designed for the capacity of the refuge 
alternative for which it is intended.
    Final paragraph (a)(3) is substantively the same as the proposal. 
It requires that the application specify the capacity and duration (the 
number of persons it is designed to maintain and for how long) of the 
refuge alternative or component. For example, the application must 
include a specific length of time that the refuge alternative or 
component could support a specified number of persons. This information 
is necessary so that MSHA can appropriately evaluate the performance of 
the refuge alternative or component and determine if it meets the 
requirement that it sustain persons for 96 hours. The final rule 
includes a non-substantive change. It does not include the ``per-person 
per-day'' measurement. Comments on capacity and duration and shift 
changeover are discussed elsewhere in this preamble under final Sec.  
75.1506(b)(2).
    Final paragraph (a)(4), like the proposal, requires that the 
application specify the length, width, and height of the space required 
for storage of each component. The Agency needs this information for 
components approved separately to assure that the refuge alternative 
will have enough usable space for occupants when all components are 
stored. MSHA did not receive comments on this provision.
    Final Sec.  7.503(b), like the proposal, requires that the 
application provide additional specific information. Final paragraph 
(b)(1) requires that the application specify a description of the 
breathable air component, including drawings, air-supply sources, 
piping, regulators, and controls. This information establishes that the 
component is included and is in its proper location. MSHA received no 
comments on the proposed requirement.
    Final paragraph (b)(2) requires that the application specify the 
maximum volume of the refuge alternative, excluding the airlock; the 
dimensions of floor space and volume provided for each person using the 
refuge alternative; and the floor space and volume of the airlock. This 
information assures that there is adequate usable space for occupants 
when all components, parts, equipment, and material are shown in 
drawings under paragraph (b)(6) in their respective place.
    One commenter stated that the phrase in the preamble ``in their 
respective place'' implied that the rule required defined locations for 
specific items. The final rule clarifies that the application specify 
the dimensions of floor space and volume for each person to assure that 
the space and volume provided for persons is usable and not reserved 
for storage.
    Another commenter questioned why the airlock in a unit is excluded 
from the space calculations. In response to comments, final Sec. Sec.  
7.505(a)(1) and 75.1506(b)(1) clarify that the airlock may be included 
in the space and volume of the refuge alternative if waste is disposed 
outside the unit. Therefore, final Sec.  7.503(b)(2) replaces the term 
``interior dimensions'' of the airlock with ``floor space and volume'' 
of the airlock which must be included in the application.
    Final paragraph (b)(3), like the proposal, requires that the 
application specify the maximum positive pressures in the interior 
space and airlock and a description of the means used to limit or 
control the positive pressure. This information allows MSHA to 
determine whether the atmospheric pressure in the refuge alternative 
will maintain good air, without being excessive, as persons enter and 
pass through the airlock. Excessive pressure could create adverse 
physiological effects on persons. MSHA did not receive comments on this 
provision. The final rule includes a non-substantive change. MSHA 
deleted the term ``allowable.''
    Final paragraph (b)(4), like the proposal, requires that the 
application specify the maximum allowable apparent temperature of the 
interior space and the airlock and the means to control the apparent 
temperature. MSHA will use this information to evaluate the approval of 
the refuge alternative. MSHA did not receive comments on this 
provision. Comments concerning the apparent temperature inside the 
refuge alternative are discussed elsewhere in this preamble under Sec.  
7.504(b)(1).
    Paragraph (b)(5) is new and provides further clarification of the 
Agency's intent with respect to controlling internal apparent 
temperature. This provision requires that applicants specify in the 
application the maximum mine air temperature under which the refuge 
alternative is designed to operate when the unit is fully occupied.
    This provision is added in response to commenters' concerns 
regarding the effect that the mine temperature has on the internal 
apparent temperature in the refuge alternative. Commenters stated that 
the temperature outside of the unit must be taken into consideration 
because of heat transfer. This provision corresponds to the requirement 
in Sec.  75.1507(a)(12) that the Emergency Response Plan (ERP) include 
the maximum mine air temperature at each of the locations where refuge 
alternatives are to be placed.
    Final paragraph (b)(6) is redesignated from proposed paragraph 
(b)(5). Like the proposal, it requires that each application include 
drawings that show the features of each component and contain 
sufficient information to document compliance with the technical 
requirements. MSHA's intent is that the drawings of each component 
should illustrate the internal configuration of the refuge alternative. 
Drawings should include the dimensions and layout of the refuge 
alternative components, controls, and materials necessary for proper 
operation. This information provides a basis for MSHA approval of the 
refuge alternative. MSHA did not receive comments on this provision.
    Final paragraph (b)(7) is redesignated from proposed paragraph 
(b)(6) and has been changed from the proposal. It requires that the 
applicant provide a manual rather than a training manual that contains 
sufficient detail for each refuge alternative or component addressing 
in-mine transportation, operation, and maintenance of the unit.
    Commenters generally supported the proposal. However, one commenter 
expressed concern that the manuals not be used as a substitute for 
miner training because the manufacturer's manual may be too detailed 
and complicated. Another commenter requested that training materials 
include

[[Page 80661]]

detailed information on turning off devices between readings to 
conserve battery life and adjusting oxygen flow. Another commenter 
stated the manual should be written in a manner that includes 
individual mine specific information such as SCSR caches, communication 
and tracking, and life lines.
    MSHA recognizes that, in general, manufacturers provide information 
necessary for safe and effective use of their products. Consistent with 
this general practice, the final rule requires the applicant to provide 
a manual which contains detailed information on in-mine transportation, 
operation, and maintenance of the refuge alternative. The manual would 
be used by MSHA to evaluate and approve the refuge alternative. The 
final rule clarifies MSHA's intent that the manual be used by operators 
to develop training material required under Sec.  75.1502(c), 
concerning mine emergency evacuation program of instruction; Sec.  
75.1504(b), concerning quarterly training; Sec.  75.1504(c), concerning 
annual expectations training; and Sec.  75.1508 concerning training on 
examinations, maintenance, or repairs.
    Final paragraph (b)(8) is redesignated from proposed paragraph 
(b)(7) and has been changed from the proposal. It clarifies that the 
applicant must provide a summary of procedures for deploying refuge 
alternatives. MSHA will use this information to evaluate the approval 
and the operator may use this information to develop instructions for 
persons in the deployment of refuge alternatives. This provision 
changes the proposed requirement that the applicant provide a summary 
of procedures for ``constructing'' refuge alternatives because 
prefabricated units do not require construction, and the structural 
components of units consisting of 15 psi stoppings constructed prior to 
an event do not require approval under part 7.
    Final paragraph (b)(9), redesignated from proposed paragraph (b)(8) 
and the same as the proposal, requires that the application include a 
summary of the procedures for using the refuge alternative. This 
information will be used by MSHA to evaluate the approval and by 
operators to develop instructions for persons using refuge 
alternatives. MSHA did not receive comments on this provision.
    Final paragraph (b)(10), redesignated from proposed paragraph 
(b)(9) and the same as the proposal, requires that the application 
specify the results of inspections, evaluations, calculations, and 
tests conducted under this subpart. MSHA will use this information to 
evaluate the effectiveness and compatibility of refuge alternative 
components. For example, the application must contain the calculation 
of the rate oxygen is delivered on a per person basis and the results 
of tests, including calculations, of the carbon dioxide removal 
(scrubbing) to demonstrate that the refuge alternative will maintain a 
safe atmosphere for 96 hours. Without having these calculations readily 
available, the Agency would have difficulty independently verifying 
that the test results are satisfactory. MSHA did not receive comments 
on this provision.
    Final Sec.  7.503(c), like the proposal, requires that the 
application for approval of the air-monitoring component provide 
specific information. This information is necessary for the applicant 
or third party to make an effective evaluation of the component and to 
provide a basis for MSHA approval of the air-monitoring component.
    Final paragraph (c)(1), like the proposal, requires that the 
application specify the operating range, type of sensor, gases 
measured, and any environmental limitations including the cross-
sensitivity to other gases, of each detector or device in the air-
monitoring component. The Agency believes that this information is 
essential for MSHA to determine that persons inside the refuge 
alternative will be aware of the concentrations of carbon dioxide, 
carbon monoxide, and methane, inside and outside the refuge 
alternative, including the airlock. In addition, this will assure that 
oxygen concentrations can be monitored simultaneously. MSHA did not 
receive comments on this provision.
    Final paragraph (c)(2), like the proposal, requires that the 
application include the procedures for operation of the individual 
devices so that they function as necessary to test gas concentrations 
over a 96-hour period. Manufacturers must properly design the system to 
control gas concentrations inside the refuge alternative. This 
provision will assist MSHA's evaluation of the air-monitoring 
component.
    One commenter stated that ``few if any monitors exist that will 
operate for 96 hours continuously.'' The commenter stated that 
provisions must be made for recharging or changing batteries and that 
instrument manufacturers should provide ``options for extending the 
operational life of their devices in a potentially explosive 
atmosphere.'' In the proposal, MSHA did not state that air monitoring 
instruments or devices were intended to operate continuously. This 
issue is discussed elsewhere in this preamble under Sec.  7.507 
concerning air monitoring components. The Agency anticipates that 
refuge alternative manufacturers will work with monitoring instrument 
manufacturers to satisfy the requirements of this provision. The final 
rule is the same as the proposal, except for an editorial change for 
clarity.
    Final paragraph (c)(3), like the proposal, requires that the 
application include procedures for monitoring and maintaining 
breathable air in the airlock, before and after purging. Monitoring and 
maintaining breathable air in the airlock is necessary to remove 
contaminants and minimize contamination inside the refuge alternative 
as miners pass through the airlock into the interior space. MSHA did 
not receive comments on this provision.
    Final paragraph (c)(4), like the proposal, requires that the 
application include instructions for determining the quality of the 
atmosphere in the airlock and refuge alternative interior and a means 
to maintain breathable air in the airlock. Determining the quality of 
the air and maintaining breathable air are necessary to sustain trapped 
miners. MSHA did not receive comments on this provision.
    Final Sec.  7.503(d)(1) and (2), like the proposal, require that 
the application for approval of the harmful gas removal component 
specify the volume of breathable air available for removing harmful gas 
both at start-up and while persons enter through the airlock; and the 
maximum volume of each gas that the component is designed to remove on 
a per-person per-hour basis. Information on harmful gas removal is 
essential for MSHA to determine the ability of the refuge alternative 
to sustain occupants for 96 hours. These final provisions also provide 
information on the removal of carbon dioxide that is exhaled by the 
occupants and the removal of other harmful gases.
    One commenter stated that this provision is not practical and 
should be removed. Another commenter recommended that the requirement 
be performance-based. MSHA does not agree since the Agency needs this 
information to evaluate the adequacy of the harmful gas removal systems 
to meet the needs of the occupants for 96 hours. The applicant can 
calculate the amount of purge air available or scrubbing capability for 
a range of expected conditions. MSHA expects the application to contain 
sufficient information to enable the Agency to determine whether the 
refuge alternative or component meets the technical and performance 
requirements of this subpart.

[[Page 80662]]

    Proposed Sec.  7.503(e) is not included in the final rule. It would 
have required the applicant to certify that each component was 
constructed of suitable materials, was of good quality workmanship, was 
based on sound engineering principles, was safe for its intended use, 
and was designed to be compatible with other components in the refuge 
alternative, within the limitations specified in the approval.
    Several commenters objected to the Agency's use of ``subjective 
terms.'' One commenter stated that the provision ``leaves itself open 
to a broad range of interpretations that will result in considerable 
confusion on the part of applicants and reviewers.'' Commenters stated 
that the final rule ``must have specific parameters that are measurable 
and have a clear limit beyond which they fail'' and ``stipulate what 
these phrases exactly mean'' or remove the provision.
    Due to commenters concerns, MSHA evaluated the information, design 
criteria, and testing results required to be specified in the 
application for approval. Based on this evaluation, MSHA determined 
that the content of the application will be sufficient to allow MSHA to 
evaluate whether the refuge alternative or component meets the 
requirements for approval. In addition, existing Sec.  7.3(f) requires 
an applicant's certification that the product meets the requirements 
specified in the appropriate subpart. Also, to clarify the Agency's 
intent, and in response to comments, MSHA added a requirement, final 
Sec.  7.503(a)(2)(iv), that the application provide a statement that 
the component is compatible with other components. With this change, 
and with the existing requirements, the Agency determined that it is 
not necessary to include proposed Sec.  7.503(e) in the final rule.
Section 7.504 Refuge Alternatives and Components; General Requirements
    Final Sec.  7.504, like the proposal, addresses safety and health 
requirements that refuge alternatives and components must meet to gain 
MSHA approval.
    Final Sec.  7.504(a)(1) clarifies the proposal and requires that 
electrical components that are exposed to the mine atmosphere must be 
approved as intrinsically safe for use in an underground coal mine. 
Further, it provides that electrical components located inside the 
refuge alternative must be either approved as intrinsically safe or 
approved as permissible.
    One commenter supported the proposal stating that refuge 
alternatives and components should be explosion-proof or intrinsically 
safe. Another commenter stated that the rule should clarify the use of 
approved permissible electrical equipment and approved intrinsically 
safe equipment.
    The final rule clarifies MSHA's intent that electrical components 
of refuge alternatives that are exposed to the mine atmosphere must be 
approved as intrinsically safe. However, because a non-explosive 
atmosphere exists inside a refuge alternative, electrical components 
located inside the unit must be either approved as intrinsically safe 
or approved as permissible. This provision helps assure that the refuge 
alternative or component will not contribute to a secondary fire or 
explosion.
    Final paragraph (a)(2), like the proposal, requires that a refuge 
alternative or component not produce continuous noise levels in excess 
of 85 dBA in the structure's interior. One commenter stated that noise 
is not likely to be a problem in a shelter during occupancy and 
questioned the logic for the proposal. MSHA included this requirement 
in the final rule because continuous noise above 85 dBA can interfere 
with communication and could adversely affect hearing, and the Agency 
is aware that noise controls, such as dampening material, are available 
to control noise levels.
    Final paragraph (a)(3), like the proposal, requires that the refuge 
alternative or component not liberate harmful or irritating gases or 
particulates into the structure's interior or airlock. The Agency is 
aware that some nonmetallic materials off-gas. Vapors, aerosols or 
particulates should not be released into the refuge alternative. The 
provision requires that materials used in a refuge alternative or 
component be tested and evaluated to verify that they do not release 
harmful or irritating gases. The application would have to include the 
results of the tests and evaluation. No commenters opposed the 
proposal.
    Final paragraph (a)(4), like the proposal, requires that the refuge 
alternative or component be designed to be moved safely with the use of 
appropriate devices, such as tow bars. MSHA recognizes that refuge 
alternatives could be a hazard to miners during transport. Based on 
MSHA's experience, the Agency believes that inadequate rigging and 
towing devices could result in hazards to miners. The refuge 
alternative should be designed with proper connections and devices to 
eliminate or reduce hazards that may occur when chains, ropes, or 
slings are used.
    Commenters supported the proposal. One commenter noted that the 
refuge alternative can be moved safely using a tow bar. The final rule 
remains unchanged from the proposal.
    Final paragraph (a)(5), like the proposal, requires that the refuge 
alternative and components be designed to withstand forces from 
collisions of the structure during transport and handling. This 
provision helps assure that the refuge alternative and components are 
not damaged during transport and handling.
    One commenter suggested that all components be subjected to shock 
testing. Another commenter noted that many mines have required special 
attachments or bumpers, and requested that the final rule include these 
modifications.
    Different mining conditions warrant different designs. The final 
rule is performance-oriented, allowing operators to tailor refuge 
alternative and component designs to the specific conditions in their 
mines. Designs can incorporate bumpers, guarding, skids, packing and 
securing devices, and rigging components. In addition, components 
should be configured, arranged, and stored to minimize shifting, 
movement, or damage during handling and routine transport. MSHA has 
evaluated all comments, and determined that the final rule should be 
the same as the proposal.
    Final paragraph Sec.  7.504(b), like the proposal, requires that 
the apparent inside temperature be controlled. Body heat and heat 
generated by chemical reactions (i.e., carbon dioxide scrubbing 
chemicals) are inherent heat-producing sources within a refuge 
alternative. Ambient temperature in a refuge alternative also is 
affected by the mine temperature compounded by high humidity in the 
sealed environment. High humidity reduces a body's ability to regulate 
temperature by sweating, which could result in a dangerously elevated 
internal body temperature. The carbon dioxide absorption process also 
generates heat and humidity. There is currently no permissible air 
conditioning equipment that will address heat and humidity in 
underground coal mines.
    Final paragraph (b)(1), like the proposal, requires that when a 
refuge alternative is fully occupied and used in accordance with the 
manufacturer's instructions and defined limitations, the apparent 
temperature in the refuge alternative must not exceed 95[deg] 
Fahrenheit. MSHA requested comments on the apparent temperature and 
mitigation of heat stress and heat stroke, and requested that 
commenters address

[[Page 80663]]

the generation of heat and the methods for measuring heat stress on 
persons occupying the refuge alternative.
    Most commenters generally supported the proposal. Some commenters 
noted that the proposal did not include air-conditioning to address 
metabolic heat buildup. One commenter stated that the proposal stifles 
creativity and eliminates innovative new technology, and one commenter 
suggested using chemical cooling packs or cooling vests to maintain 
core body temperature at a safe level. MSHA believes that there could 
be methods, including air conditioning, for controlling temperature 
that would be acceptable under the final rule. Chemical cooling packs 
or cooling vests may be used to supplement maintaining core body 
temperature. However, these devices have not been established as 
reliable, and therefore, may not be used as a substitute to the 
requirement for maintaining the apparent temperature inside the refuge 
alternative.
    One commenter suggested that it was not appropriate to require an 
interior temperature without a corresponding ambient rock temperature. 
MSHA reviewed NIOSH/Raytheon UTD's Report on Miner Refuge Chamber 
Thermal Analysis (NIOSH/Raytheon report). The NIOSH/Raytheon report 
concluded that the rock type has a negligible effect on the conduction 
of heat away from a refuge alternative in an underground mine. In 
addition, the NIOSH/Raytheon report stated that the amount of heat 
conducted through the floor of a refuge alternative is small compared 
to the amount of heat that is carried away by convection. Accordingly, 
the final rule does not include a provision for corresponding ambient 
rock temperature.
    One commenter stated that the International Standards Organization 
(ISO) standard, ISO 7243:1989(E), ``Hot environments--Estimation of the 
heat stress on working man, based on the WBGT-index (wet bulb globe 
temperature),'' should be used to evaluate heat stress.
    ISO 7243 specifies periods of work and rest based on the air 
temperature and the level of activity throughout a workday for working 
in a hot environment daily, with breaks during the day and periods of 
relief between exposures. The ISO standard does not apply to the 
conditions addressed by the final rule because persons in a refuge 
alternative could be exposed for several days without an opportunity to 
recover.
    Apparent temperature is a measure of relative discomfort due to the 
combined effect of heat and humidity. The concept of apparent 
temperature was developed by R.G. Steadman (1979) and was based on 
physiological studies of evaporative skin cooling for various 
combinations of ambient temperature and humidity. The likelihood of 
adverse effects from heat may vary with a person's age, health, and 
body characteristics; however, apparent temperatures greater than 80 
[deg]F are generally associated with some discomfort. Core body 
temperatures in excess of 104 [deg]F are considered life-threatening, 
with severe heat exhaustion or heat stroke possible after prolonged 
exposure or significant physical activity. The December 2007 Foster 
Miller Report\1\ concluded that the apparent temperature within a 
confined space occupied by humans should not exceed 95 [deg]F.
---------------------------------------------------------------------------

    \1\ Foster Miller. Phase II Report, December 2007.
---------------------------------------------------------------------------

    Based on the Agency's review of many standards, studies, and 
reports, and the comments and testimony, MSHA believes that applying 
ISO 7243 could result in dangerously high apparent temperatures in the 
refuge alternative. This is because the limit specified in ISO 7243 is 
an 8-hour average, not a maximum continuous exposure. Therefore, using 
the ISO 7243 average as a maximum exposure level would allow as much as 
50% higher temperature than even the ISO 7243 standard allows, and for 
a continuous 96-hour period as opposed to 8 hours. This would be fatal 
to the occupants. Accordingly, the final rule is the same as proposed.
    Final paragraph (b)(2) clarifies the proposal and requires that 
tests be conducted to determine the maximum apparent temperature in the 
refuge alternative when used at maximum occupancy and in conjunction 
with required components. In addition, the final rule requires that an 
application include these test results including calculations. The 
final rule clarifies MSHA's intent that tests be conducted and that the 
test results including calculations be reported on the application. 
Test results could also include data, records, and other supporting 
documentation reported on the application. MSHA received no comments on 
this provision.
    Final Sec.  7.504(c), like the proposal, requires that refuge 
alternatives include additional measures to protect the safety and 
survival of miners. These requirements include a means for 
communicating with persons on the surface, lighting, sanitation, first 
aid, and repairs.
    Final paragraph (c)(1), requires a two-way communication facility 
that is a part of the mine communication system, which can be used from 
inside the refuge alternative; and accommodations for an additional 
communication system and other requirements as defined in the 
communications portion of the operator's approved Emergency Response 
Plan (ERP). MSHA is aware that these additional systems may not yet be 
available, but as they are developed, mine operators will be required 
to include them in their ERPs. The MINER Act requires, by June 15, 
2009, that ERPs contain wireless communication systems. MSHA is working 
with NIOSH on this emerging technology and will provide further 
guidance to the mining community with respect to the Agency's 
expectations for ``wireless communication'' systems in ERPs. 
Manufacturers may need to provide other accommodations for these 
systems. In the final rule, this provision has been revised to reflect 
the language in the safety standards for communications facilities in 
this rulemaking. Comments addressing these communication systems are 
addressed in that section.
    In the preamble to the proposed rule and in the Agency's opening 
statements at the public hearings, MSHA requested comments on including 
a requirement that refuge alternatives be designed with a means to 
signal rescuers on the surface. This was intended to be a means to 
assure that rescuers on the surface could be contacted if the 
communications systems become inoperable. This signal would have been 
similar to what miners had done in the past by hammering on the roof, 
ribs, or floor to create sounds that can be detected by seismic devices 
located on the surface.
    One commenter stated that the final rule should not require the use 
of a seismic location device unless MSHA is willing to obtain 
significant upgrades to its seismic capabilities. However, most 
commenters did not respond to MSHA's request on this issue.
    MSHA also requested comments on whether the final rule should 
include a requirement that the manufacturer design refuge alternatives 
with a means to signal underground rescuers with a homing device. Such 
a requirement would assure that rescuers could detect the trapped 
miners within the mine.
    Some commenters supported adding a provision for a homing device in 
refuge alternatives. They stated that the signal could help rescuers 
determine whether anyone was in the refuge alternative. Several opposed 
such a provision, for example, stating that the homing device was 
unnecessary because there already is a requirement to identify the 
locations of the units on the escapeway maps.
    The final rule, like the proposal, does not contain a provision 
addressing

[[Page 80664]]

signaling or homing devices. After reviewing the comments, MSHA agrees 
with commenters opposing such provisions and has determined that the 
requirements for a signaling device that would create a seismic sound 
to be detected by rescuers on the surface should not be included in the 
final rule. Likewise, the Agency has determined that the requirements 
for a homing device that would create an electronic signal to be 
detected by rescuers underground should not be included in the final 
rule.
    Final paragraph (c)(2), like the proposal, requires that refuge 
alternatives include lighting sufficient for persons to perform tasks. 
Lighting is essential to allow persons to read instructions, warnings, 
and gauges; operate gas monitoring detectors; and perform other 
activities related to the operation of the refuge alternatives.
    In the preamble to the proposal, MSHA recommended a minimum of 1 
foot candle of lighting be provided per miner per day.\2\ The Agency 
also noted that lighting should not generate significant heat, or 
require continual manual power for light generation.
---------------------------------------------------------------------------

    \2\ MIL-STD-1472F, Lighting for bomb shelters, NOTICE 1, 05 
December 2003.
---------------------------------------------------------------------------

    Several commenters recommended light sticks and cap lamps. Another 
commenter stated that MSHA should be flexible with respect to a 
lighting requirement and that the proposal requires technology that may 
not be currently available. One commenter stated that MSHA should not 
require 1 foot-candle per day per miner. Another commenter pointed out 
that there may be added risks of electrical hazards and requested that, 
as the provision presents more potential problems than it solves, it be 
omitted from the final rule.
    Although MSHA agrees that light sticks can be used, higher 
intensity lighting may be required for certain tasks. The final rule 
includes the same performance-oriented requirement as the proposal. The 
final rule includes a non-substantive change. It includes the term 
``for persons.''
    Final paragraph (c)(3), like the proposal, requires that refuge 
alternatives include a means to contain human waste effectively and 
minimize objectionable odors. A plastic bag and closed receptacle could 
be used to contain waste and prevent objectionable odors. The final 
rule does not require a specific method of waste disposal. The length, 
width, and height of the container housing the sanitation system, 
including operating instructions, should be in the refuge alternative's 
manual. Information regarding sanitation assures that the applicant has 
included an adequate means for containing waste.
    One commenter pointed out a number of options for sanitation and 
waste disposal that are currently available. Some commenters requested 
that the final rule require that human waste be disposed of outside the 
refuge alternative. Under the final rule, waste can be disposed of from 
the interior of the refuge alternative, as long as the disposal does 
not compromise the integrity of the refuge alternative or affect its 
operation. The final rule is the same as proposed.
    Final paragraph (c)(4), like the proposal, requires that refuge 
alternatives include first aid supplies. This requirement assures that 
first aid supplies are available for treating injured miners.
    One commenter requested that the Agency specify the nature and 
quantity of required supplies. Another commenter stated that first aid 
kits should contain instructions for treating injuries that could be 
anticipated in the aftermath of an accident and warned that the 
inclusion of ``anxiety and or sleep inducing drugs'' could present 
medical issues.
    First aid supplies must be adequate to provide for the number of 
persons injured in an emergency. In an underground mine emergency, MSHA 
expects that there will be a proportionally higher number of injuries 
related to lacerations, burns, and fractures resulting from explosions 
and fires. The refuge alternative must contain first aid supplies to 
address these injuries, but the final rule does not specify the content 
of the first aid kit. The final rule is the same as the proposal and is 
consistent with the safety standards for ERPs in this final rule.
    Final paragraph (c)(5), like the proposal, requires that refuge 
alternatives be stocked with materials, parts, and tools for repair of 
components. Manufacturers could provide a repair kit with necessary 
materials and appropriate tools to perform repairs. Materials and tools 
should include metal repair materials, fiber material, adhesives, 
sealants, tapes, and general hardware (i.e., screws, bolts, rivets, 
wire, zippers and clips). Powered tools must be approved as 
intrinsically safe and permissible. One commenter supported and no 
commenters opposed the proposal. The final rule is the same as the 
proposal.
    Final paragraph (c)(6), is redesignated and clarified from proposed 
Sec.  7.506(i). It requires a fire extinguisher that meets the 
requirements for portable fire extinguishers used in underground coal 
mines under part 75; and that is appropriate for fires involving the 
chemicals used for harmful gas removal; and that uses a low-toxicity 
extinguishing agent that does not produce a hazardous by-product when 
activated. One commenter supported and no commenters opposed the 
proposal. The final rule clarifies MSHA's intent. MSHA's intent is that 
the fire extinguisher must protect miners from potentially toxic 
chemicals in the confined atmosphere of a refuge alternative. The final 
rule requires that a fire extinguisher meet the requirements of MSHA's 
existing standards for portable fire extinguishers. It changes the 
proposed requirement limited to carbon dioxide chemicals to chemicals 
used for harmful gas removal, and non-toxic extinguishing agent to low-
toxicity extinguishing agent. The final rule does not include the 
proposed requirement that the fire extinguisher not produce hazardous 
by-product when heated.
    Final Sec.  7.504(d)(1), (2), and (3) are substantively the same as 
the proposal, and require that containers used for storage of refuge 
alternative components or provisions be airtight, waterproof, and 
rodent-proof; easy to open and close without the use of tools; and 
conspicuously marked with an expiration date and instructions for use. 
These requirements assure that the containers' contents will be useable 
when needed.
    One commenter requested clarification of the components that are 
covered by this provision. Another commenter requested that the final 
rule only apply to specific items, such as food and water, which are 
subject to degradation.
    The final rule clarifies the proposal by including the term ``or 
provisions.'' Provisions include items such as supplies, materials, 
systems, and food and water. Food and water would need to be contained 
in airtight, waterproof, and rodent-proof containers because these 
provisions are subject to degradation.
Section 7.505 Structural Components
    Final Sec.  7.505, like the proposal, addresses structural 
component requirements for refuge alternatives.
    Final paragraph (a)(1) requires that refuge alternatives provide at 
least 15 square feet of floor space per person, like the proposal, but 
includes changes in the required cubic feet of volume per person 
according to the following chart for mining heights:

[[Page 80665]]



------------------------------------------------------------------------
                                             Unrestricted volume (cubic
          Mining height (inches)                 feet) per person *
------------------------------------------------------------------------
36 or less................................  30
>36-<=42..................................  37.5
>42-<=48..................................  45
>48-<=54..................................  52.5
>54.......................................  60
------------------------------------------------------------------------
* Includes an adjustment of 12 inches for clearances.

    In addition, the final rule clarifies that the airlock can be 
included in the space and volume if waste is disposed outside the 
refuge alternative.
    The volume of the refuge alternative is calculated by assuming two 
factors: (1) 6 inches is necessary to allow for clearance of the refuge 
alternative to be moved; and (2) the usable interior height of the 
refuge alternative is reduced by 6 inches for the roof and floor beams. 
As an example, a 36-inch mine height is reduced by 6 inches for 
clearance and 6 inches for inside beams leaving 24 inches or 2 feet. 
The 24 inches or 2 feet multiplied by 15 square feet of floor space 
equals 30 cubic feet of volume per person. Under the final rule, MSHA 
intends for persons to have this space without being affected by other 
factors such as stored items.
    In the preamble to the proposed rule and in the Agency's opening 
statements at the public hearings, MSHA requested comments on the 
proposed requirement of at least 15 square feet of floor space and 60 
cubic feet of volume per person, particularly in low mining heights. 
MSHA received comments in support of and opposed to the proposal.
    Some commenters supported 15 square feet of floor space per person, 
but stated that the 60 cubic feet of volume per person was not a 
sufficient amount of space for each miner and could result in a higher 
risk of carbon dioxide exposure or excessive heat within the refuge 
alternative. These commenters urged MSHA to adopt the 85 cubic feet 
recommendation of NIOSH. In its comment on the proposed rule, NIOSH 
stated that the NIOSH recommendation of 85 cubic feet was ``based on 
published research conducted under the old civil defense program [OCDM 
1958], and it is difficult to apply those findings directly to mining 
applications.'' NIOSH further stated that in the absence of NIOSH 
testing, it supports the interior volume requirement in the proposed 
rule.
    Other commenters stated that both the proposed space and volume 
requirements were excessive in an emergency because persons could 
survive with less space. In addition, some stated that larger refuge 
alternatives were hard to transport, would require more compressed air 
and oxygen cylinders, or may not be feasible in all seam heights. 
Others stated that due to the orientation of the occupants, floor space 
per person is the critical measurement, and not volume. Some commenters 
stated that less space was needed because most of the time the maximum 
number of persons to be accommodated would be less than half because 
overlapping crews, i.e., hot-seating, occurs only during a small part 
of the work day.
    Many commenters suggested space and volume criteria that were less 
than those in the proposal. In support of their position, some of these 
commenters relied on the South African standard for spacing while 
others relied on various engineering studies or manufacturer findings. 
Commenters suggestions ranged from 6.4 to 10 square feet of floor space 
and from 30 to 46.5 cubic feet of volume. Other commenters suggested a 
performance-oriented approach, stating that MSHA should not specify any 
space and volume requirements.
    Finally, some commenters stated that the proposal omitted 
consideration of seam height. These commenters stated that compliance 
with the proposal would be difficult in mines with low seam heights.
    For mining heights greater than 54 inches, the final rule requires 
60 cubic feet of volume. However, in response to commenters' concerns, 
the final rule includes varying requirements for volume, based on 
mining heights that are less than or equal to 54 inches. These varying 
volume requirements accommodate commenters' concerns regarding the 
ability to maneuver, deploy, or use larger units in mines with low seam 
heights.
    After reviewing the comments, MSHA determined that the proposed 15 
square feet of floor space per person is necessary to assure that 
persons can conduct necessary activities in the refuge alternative. 
Occupants will need to attend to harmful gas removal; monitor gas 
levels; attend to basic needs, such as drinking, eating, and using the 
sanitation facilities; and provide care to injured miners. Adequate 
space is needed to accommodate larger than average persons. In 
addition, adequate volume is needed for proper function of passive 
harmful gas removal systems. It is also important to note that larger 
volumes are more effective at dissipating heat because of increased 
surface area, which helps control the apparent temperature in the 
interior space of the refuge alternative. MSHA recognizes that the 
lower mining height refuge alternatives may have less volume per 
person, but must still maintain apparent temperature as required in 
this final rule.
    Some commenters expressed concern regarding the statement in the 
preamble to the proposal that the space requirements do not include the 
airlock. They stated that, once everyone was inside, the airlock was 
usable space and should be included in calculating the space and volume 
per person. To clarify the Agency's intent with respect to the proposal 
and in response to comments, under the final rule, the airlock may be 
included in calculating space and volume provided that waste is 
disposed of outside the refuge alternative.
    Final paragraph (a)(2), like the proposal, requires that refuge 
alternatives include storage space that secures and protects the 
components during transportation and that permits ready access to 
components for maintenance examinations. Paragraph (a)(2) has been 
clarified to reflect the Agency's intent that this requirement applies 
to maintenance examinations rather than preshift visual examinations.
    MSHA clarified the final rule in response to a comment asking for 
clarification regarding the type of examinations required under this 
paragraph. MSHA intends that a refuge alternative must be designed to 
allow maintenance examinations to be conducted. The components must be 
secured to prevent shifting during transport or moves. Maintenance 
examinations assure that the components will be readily available for 
deployment. Preshift examinations are discussed elsewhere in this 
preamble under Sec. Sec.  7.505(d)(1) and 75.360(d).
    Final paragraph (a)(3), like the proposal, requires that refuge 
alternatives include an airlock that creates a barrier and isolates the 
interior space from the mine atmosphere, except for a refuge 
alternative capable of maintaining adequate positive pressure. This 
provision addresses the need to provide breathable air to persons 
entering the refuge alternative if the mine atmosphere is contaminated. 
In this case, pressures need to be incrementally higher in the interior 
space as compared to the airlock and the airlock pressure needs to be 
higher than the mine atmosphere. Persons will pass through the airlock 
via airtight doors into the interior space. The exception to the 
requirement for an airlock recognizes that the positive pressure would 
prevent outside air from contaminating the refuge alternative; 
therefore, an airlock would not be necessary.
    One commenter stated that both positive pressure inside the shelter 
and

[[Page 80666]]

an airlock must be required for all types of shelters. Another 
commenter asked that MSHA clarify ``adequate positive pressure'' and 
the scenario under which this exception will be accepted. In the final 
rule, the Agency uses the commonly understood definition of 
``adequate'' to mean that there would be sufficient positive pressure 
to allow the refuge alternative to function as it would with an 
airlock. After considering the comments received, the final rule is the 
same as the proposal.
    Final paragraph (a)(3)(i), like the proposal, requires that the 
airlock be designed for multiple uses to accommodate the structure's 
maximum occupancy. This requirement assures access for the maximum 
number of persons for which the refuge alternative is designed.
    One commenter requested clarification of the proposed requirement 
relating to the number of purges. MSHA has performed limited carbon 
monoxide purge testing that indicates a 50 percent carbon monoxide 
concentration reduction with each purge. In PIB P07-03, under Safe 
Haven Assumptions providing breathable air, MSHA addressed carbon 
monoxide (CO) purging. Purging ``efficiency'' was estimated to require 
compressed air cylinders providing at least three times the amount of 
safe haven volume. Miners are to be inside the volume being purged 
wearing an SCSR until purging is accomplished. The Agency anticipated 
using compressed air cylinders as necessary to reduce Safe Haven 
concentration to less than 25 parts per million (ppm) for safe havens 
with a captive volume (not using positive pressure forced air from 
either a compressed air line or borehole from the surface).
    Final paragraph (a)(3)(ii), like the proposal, requires that the 
airlock be configured to accommodate a stretcher without compromising 
its function. The airlock must be large enough to accommodate a 
stretcher with an injured miner while the outside door is closed and 
the inside door is open.
    One commenter, who supported the proposal, stated that this 
proposed requirement was absolutely necessary to accommodate the need 
to bring injured miners into an airlock. Another commenter noted that a 
large amount of space would be required to accommodate a stretcher in 
the airlock. MSHA believes that this final requirement is necessary to 
accommodate a stretcher in the air lock and to allow transfer of the 
injured miner on the stretcher into the refuge alternative's interior 
space. MSHA notes that elsewhere in the final rule, in response to 
comments, the Agency has clarified its intent with respect to the 
maximum volume of refuge alternatives and stated that the airlock can 
be included in calculating space and volume. After a review of all 
comments, the final rule is the same as the proposal.
    Final paragraph (a)(4) makes editorial changes, but is 
substantively the same as the proposal and requires that refuge 
alternatives be designed and made to withstand 15 pounds per square 
inch (psi) overpressure for 0.2 seconds prior to deployment. This 
requirement assures that the refuge alternative is capable of 
withstanding an initial explosion and that the components are not 
damaged and are able to function as intended.
    MSHA received comments both in support of and opposed to the 
proposal. One commenter who supported the proposal stated that ``the 15 
psi value for the survivability of the shelter is sufficient as levels 
higher than that would not likely result in survivors.'' Other 
commenters who supported the proposal referred to the West Virginia 
Mine Safety Technology Task Force Report of May 29, 2006, which 
recommended that refuge alternatives only be designed to survive an 
initial event.
    Commenters who opposed the proposal stated that the proposal was 
inadequate because explosions can create pressures greater than 20 psi, 
that refuge alternatives should be capable of withstanding a second 
explosion, and that inflatable shelters are unsafe because they may not 
endure a second explosion.
    The final rule is consistent with the NIOSH Report, which 
recommended a 15 psi overpressure for 0.2 seconds. NIOSH test results 
from the Lake Lynn Laboratory support a 15 psi overpressure and a 0.2 
second duration for a typical blast wave propagation in an underground 
mine. MSHA notes that the Agency has reviewed information from the U.S. 
Department of Defense weapon designers which use a 13 psi peak 
overpressure as the 100% lethal threshold.
    With respect to secondary explosions, the NIOSH report states that 
a number of factors make optimal design of refuge chambers difficult. 
These factors include the complexity of mine explosions and the 
interaction of the explosion with the physical environment. The Report 
further states: ``[t]he most likely locations of an initial explosion 
can be predicted with some certainty,'' and ``[i]f there is an ignition 
source, there could be subsequent explosions, although the location and 
strength of these are more difficult to forecast.'' Because of the 
difficulty in predicting the likelihood and strength of a secondary 
explosion, the final rule does not include strength requirements with 
respect to a second explosion. After reviewing all the comments, the 
final rule is substantively the same as the proposal.
    Final paragraph (a)(5) makes an editorial change, but is 
substantively the same as the proposal, and requires that refuge 
alternatives be designed and made to withstand exposure to a flash fire 
of 300 [deg]Fahrenheit for 3 seconds prior to deployment. This 
requirement assures that the refuge alternative is capable of 
withstanding a fire and that the components will not be damaged and are 
able to function as intended.
    One commenter agreed with the proposal. The final rule is 
substantively the same as the proposal.
    Final paragraph (a)(6), substantively the same as the proposal, 
requires that structural components of refuge alternatives be made with 
materials that do not have a potential to ignite or are MSHA-approved. 
Materials under this final rule could include, but are not limited to, 
inflatable shelters and any materials providing a secure space to 
protect the inside atmosphere from the hazardous outside atmosphere. 
MSHA notes that materials are generally tested for noncombustibility 
under American Society for Testing and Materials (ASTM) E136 ``Standard 
Test Method for Behavior of Materials in a Vertical Tube Furnace at 750 
Degrees C'' (2004), although a similar ISO test, ISO 1182:2002 also 
exists. Tests for flame resistance in existing 30 CFR 7.27 could be 
used to determine the flame resistance of materials that have the 
potential to ignite.
    One commenter requested that MSHA clarify the extent of materials 
that must be flame resistant or noncombustible and clarify whether the 
requirement applies to materials that will be deployed and used only 
after the event occurs.
    This provision applies to any materials used to provide a secure 
space to protect persons from the hazardous outside atmosphere. This 
final rule assures that the refuge alternative is capable of 
withstanding a fire and that the components will not be damaged and are 
able to function as intended in case of an emergency. Taken together, 
paragraphs (a)(4), (a)(5), and (a)(6) would assure that the refuge 
alternative is able to withstand an initial fire and that the structure 
and internal components and provisions will not be damaged and will 
function as intended following the emergency. The final rule

[[Page 80667]]

remains substantively the same as the proposal.
    Final paragraph (a)(7) makes an editorial change, but is 
substantively the same as the proposal, and requires that refuge 
alternatives be made from reinforced material that has sufficient 
durability to withstand routine handling and resist puncture and 
tearing during deployment and use. Refuge alternatives need to be made 
from reinforced material to be capable of withstanding the harsh 
underground mining environment. This especially applies to refuge 
alternatives with inflatable structures.
    One commenter supported and no commenters opposed the proposed 
requirement. The final rule is substantively the same as the proposal.
    Final paragraph (a)(8), makes an editorial change, but is 
substantively the same as the proposal, and requires that refuge 
alternatives be guarded or reinforced to prevent damage to the 
structure that would hinder deployment, entry, or use. This requirement 
assures that the refuge alternative will be designed to incorporate 
protective features to protect the integrity of the structure and 
operation of doors, inflatable extensions of the refuge alternative, 
and other functions necessary to deploy, enter, or use the refuge 
alternative.
    One commenter supported and no commenters opposed the proposal. The 
final rule is substantively the same as the proposal.
    Final paragraph (a)(9), like the proposal, requires that refuge 
alternatives permit measurement of outside gas concentrations without 
exiting the structure or allowing entry of the outside atmosphere. Gas 
monitoring of the atmosphere outside the refuge alternative is needed 
when there is a lack of communication with rescuers and persons are 
considering whether evacuation is a viable option.
    Several commenters supported the proposal. One commenter stated 
that it was absolutely essential to be able to measure outside gas 
concentrations without exiting the structure or allowing outside air to 
enter. The final rule is the same as the proposal.
    Final paragraph Sec.  7.505(b), like the proposal, requires 
inspections or tests of the structural components. Final paragraph 
(b)(1) clarifies the proposal and requires that a test be conducted to 
demonstrate that trained persons can fully deploy the structure, 
without the use of tools, within 10 minutes of reaching the refuge 
alternative. This provision assures that persons can deploy and use the 
refuge alternative in a short amount of time upon reaching it. In a 
worst-case scenario, where only one SCSR is available to provide 60 
minutes of breathable air, the first 30 minutes could be used to 
evacuate and, if evacuation is not possible, return to the refuge 
alternative. If the person returns to the refuge alternative, 10 
minutes could be used to establish a secure space between the interior 
and exterior atmospheres, and 20 minutes could be used to purge the 
interior space to establish a breathable atmosphere. Under the final 
rule, testing should be conducted simulating real-life situations and 
conditions, such as smoke, heat, humidity and darkness while using 
SCSRs.
    Several commenters questioned whether miners could activate the 
refuge alternative within 10 minutes. MSHA recognizes there may be 
differences in refuge alternatives necessitating different start-up 
procedures. Training requirements for persons deploying and using 
refuge alternatives are addressed in part 75. The Agency has included 
this training requirement in recognition of the limited time available 
for persons to establish a secure space between the interior and 
exterior atmospheres and to purge the refuge alternative to establish a 
breathable air atmosphere. The final rule clarifies the Agency's intent 
that a ``test'' be conducted. The final rule is substantively the same 
as the proposal.
    Final paragraph (b)(2) clarifies the proposal and requires that a 
test be conducted to demonstrate that an overpressure of 15 psi applied 
to the pre-deployed refuge alternative structure for 0.2 seconds will 
not allow gases to pass through the structure. The test must verify 
that the refuge alternative structure is capable of withstanding an 
initial explosion, and that gases do not pass through the structure 
following an explosion. The test should demonstrate the integrity of 
the structure and that doors remain operational.
    MSHA did not receive any comments on this proposal. The final rule 
clarifies that a ``test'' be conducted and makes an editorial change. 
The final rule is substantively the same as proposed.
    Final paragraph (b)(3) clarifies the proposal and requires that a 
test be conducted to demonstrate that a flash fire of 300 [deg]F for 3 
seconds will not allow gases to pass from the outside to the inside of 
the structure. The test must verify that the refuge alternative 
structure is capable of withstanding a flash fire, and that gases do 
not pass through the structure following a flash fire. The test should 
demonstrate the integrity of the structure and that doors remain 
operational.
    MSHA did not receive any comments on this proposal. The final rule 
clarifies that a ``test'' be conducted. The final rule is substantively 
the same as proposed.
    Final paragraph (b)(4) clarifies the proposal and requires 
inspections to determine that overpressure forces of 15 psi applied to 
the pre-deployed structure for 0.2 seconds do not prevent the stored 
components from operating. This provision helps assure that stored 
components are capable of withstanding an initial explosion and will 
function as intended following an explosion.
    One commenter supported and no commenters opposed the proposal. The 
final rule clarifies that an ``inspection'' be conducted and makes an 
editorial change. The final rule is substantively the same as proposed.
    Final paragraph (b)(5) clarifies the proposal and requires an 
inspection to determine that a flash fire of 300 [deg]F for 3 seconds 
does not prevent the stored components from operating. This provision 
helps assure that stored components are capable of withstanding a flash 
fire and will function as intended following a flash fire.
    One commenter supported and no commenters opposed the proposal. The 
final rule clarifies that an ``inspection'' be conducted. The final 
rule is substantively the same as proposed.
    Final paragraph (b)(6) clarifies the proposal and requires a test 
to demonstrate that each structure resists puncture and tearing when 
tested in accordance with ASTM D2582-07 ``Standard Test Method for 
Puncture-Propagation Tear Resistance of Plastic Film and Thin 
Sheeting.'' This standard is copyrighted by ASTM International, 100 
Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959. 
Individual reprints (single or multiple copies) of this standard may be 
obtained by contacting ASTM at the above address or at 610-832-9585 
(phone), 610-832-9555 (fax), or [email protected] (e-mail); or through 
the ASTM Web site (http://www.astm.org). A copy may be inspected at any 
MSHA Coal Mine Safety and Health district office, or at MSHA's Office 
of Standards, 1100 Wilson Blvd., Room 2353, Arlington, Virginia, 22209, 
or at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_federal _regulations/ibr_ locations.html.
    This requirement assures that the material used to make the refuge 
alternative is capable of withstanding the harsh mining environment and

[[Page 80668]]

abrasion, tears, and punctures which might result during handling, 
transportation, and deployment. This especially applies to inflatable-
type refuge alternatives and tent refuge alternative structures. These 
materials must be capable of maintaining a secure space without 
compromising the interior atmosphere of the refuge alternative.
    One commenter supported and no commenters opposed the proposal. The 
final rule clarifies that a ``test'' be conducted. The final rule is 
substantively the same as proposed.
    Final paragraph (b)(7) clarifies the proposal and requires a test 
to demonstrate that each reasonably anticipated repair can be completed 
within 10 minutes of opening the storage space for repair materials and 
tools. MSHA is concerned that inflatable-type refuge alternative 
structures have the potential to be ripped, torn, or develop a leak. A 
leak or tear must be repaired without delay to avoid jeopardizing the 
safety of persons occupying the refuge alternative. The atmosphere of a 
refuge alternative must remain isolated at all times. The test would 
demonstrate that a miner would be able to make a repair such as mending 
a tear or resealing the fabric within 10 minutes of opening the storage 
space.
    Some commenters questioned whether a person could repair the refuge 
alternative structure within 10 minutes. A commenter stated that the 
manufacturer cannot guarantee any particular time frame for repairs, 
especially during an emergency, and that mandating a time limit is 
neither practical nor enforceable.
    MSHA recognizes there may be differences in refuge alternatives, 
and, hence, in refuge alternatives' repair procedures. This requirement 
in included in the final rule in recognition of the limited time 
available, to repair a structure or to re-establish a secure space 
between the interior and exterior atmospheres of the refuge alternative 
to maintain a breathable air atmosphere. Training requirements for 
miners for refuge alternatives, which are addressed in part 75, must 
cover repairs. Training will help prepare miners for the possible need 
to repair a refuge alternative after a protective isolated atmosphere 
has been established. After considering the comments, the final rule 
clarifies that a ``test'' be conducted, but the final rule is 
substantively the same as the proposal.
    Final paragraph (b)(8) clarifies the proposal and requires a test 
to demonstrate that no harmful gases or noticeable odors are released 
from nonmetallic materials before or after the flash fire test. It also 
requires a test to identify the gases released and determine their 
concentrations. This requirement assures that the nonmetallic materials 
will not emit odors that may sicken persons occupying the refuge 
alternative. Noticeable odors also might indicate that a material is 
giving off vapors or gas. Although a noticeable odor may not be 
objectionable, it could still be harmful. Testing should include 
instruments used for detecting any released gases. Nonmetallic 
materials such as paints, plastics, and fiber that are used in the 
manufacturing of the refuge alternative structure should not release 
harmful fumes, vapors, or gases.
    One commenter stated that, when the refuge alternative is stored, 
only the externally exposed components need to be tested for toxic 
gases when exposed to a flash fire test. This commenter suggested that 
the final rule clarify that requirement only applies to materials 
potentially exposed to flash fires in the stored configuration.
    MSHA expects that a number of different types and combinations of 
refuge alternatives and components will be used, and that some of these 
will likely be stored inside the structural components. Testing would 
address the interior materials and components to assure that they do 
not release harmful fumes, vapors, or gases under normal conditions. An 
inspection must be performed to determine that no harmful gases or 
harsh odors are released from nonmetallic materials after the flash 
fire test. A properly designed system also would control heat 
penetration inside the refuge alternative to protect the components and 
materials in the interior of the refuge alternative.
    The Agency agrees with the commenter that the flash fire test would 
be performed on a stored refuge alternative and its components with the 
contents of the refuge alternative inside. However, the contents of a 
refuge alternative should remain inside the refuge alternative when a 
test is performed.
    The final rule clarifies that an ``inspection'' be conducted after 
the flash fire test. The final rule is substantively the same as the 
proposal.
    Final Sec.  7.505(c) makes an editorial change, but is 
substantively the same as the proposal, and provides requirements for 
pressurized air if it is used to deploy the structure or maintain its 
shape. Final paragraph (c)(1), like the proposal, requires a pressure 
regulator or other means to prevent over-pressurization of the 
structure. Over-pressurization of the interior space or airlock space 
would create a safety hazard. The regulator must be designed to assure 
that effective relief of overpressure can be accomplished.
    Final paragraph (c)(2), like the proposal, requires a means to 
repair and re-pressurize the structure in case of failure of the 
structure or loss of air pressure. If the inflatable-type refuge 
alternative is damaged or leaks, it will need repair and additional 
compressed air to re-establish the pressure and volume of air that was 
lost.
    One commenter supported and no commenters opposed the proposal. The 
final rule remains the same as the proposal.
    Final Sec.  7.505(d)(1) makes an editorial change, but is 
substantively the same as the proposal, and requires that the refuge 
alternative structure provide a means to conduct a preshift examination 
of the components critical for deployment, without entering the 
structure. This requirement assures that necessary inspections can be 
performed to identify problems that may occur in case of an emergency. 
The gauges and controls for critical components, such as compressed air 
and oxygen, should be easy to observe to determine the readiness of 
those components.
    Some commenters supported the proposal. Other commenters opposed 
it, stating that the final rule should require that a preshift 
examination be conducted inside the refuge alternative to examine 
critical components.
    MSHA does not encourage entering a refuge alternative for pre-shift 
examinations. The Agency believes that the structure should be designed 
so that components critical for deployment, such as gauges and 
controls, can be easily observed externally. After considering the 
comments, the final rule remains substantively unchanged from the 
proposal.
    Final paragraph (d)(2), like the proposal, requires that the refuge 
alternative structure provide a means to indicate unauthorized entry or 
tampering. This requirement assures that a refuge alternative is intact 
and ready for use, if necessary.
    One commenter supported the proposal. Another commenter requested 
that the proposal be changed to permit operators to enter the refuge to 
examine the cylinders on a regular basis, and that there should be a 
requirement for a means to detect tampering with components and 
materials stored inside the refuge.
    As stated in the proposal, tamper-proof seals are necessary and 
must be provided for visual indication of unauthorized entry into the 
refuge alternative. This deters tampering with

[[Page 80669]]

or pilfering of the contents of the refuge alternative. Refuge 
alternatives would need to be designed so that if examination or repair 
requires entry into the refuge alternative, then the seal or other 
means can be replaced. The final rule remains unchanged from the 
proposal.
Section 7.506 Breathable Air Components
    Requirements in this section assure that there is adequate 
breathable air inside the refuge alternative because maintaining 
breathable air inside the refuge alternative is vital to sustain 
persons trapped underground. The Agency recognizes that different types 
and combinations of breathable air components from several 
manufacturers may be used to provide breathable air for refuge 
alternatives.
    Final Sec.  7.506(a), clarifies the proposal and requires that 
breathable air must be supplied by compressed air cylinders, compressed 
breathable-oxygen cylinders, or boreholes with fans installed on the 
surface or compressors installed on the surface. The final rule 
clarifies MSHA's intent that fans or compressors installed on the 
surface are to be used with boreholes. In addition, the final rule 
contains an editorial change, but remains substantively unchanged from 
the proposal. It requires that only uncontaminated breathable air be 
supplied to the refuge alternative. These final requirements assure 
that the breathable air component is reliable and ready to be deployed 
and used.
    One commenter stated that specific approval requirements could 
stifle innovation and technological advances, and that MSHA should 
follow a performance-oriented approach and specify only the quantity 
and quality of air or oxygen entering the shelter. MSHA is promulgating 
this final rule to implement the MINER Act's goal related to the 
maintenance of individuals trapped underground in the event that miners 
are not able to evacuate the mine. To achieve this goal, the Agency's 
final rule must provide requirements that assure that refuge 
alternatives will operate effectively. To allow for innovations in 
technology, the Agency has developed a final rule that is largely 
performance-oriented. Under the final rule, applicants have a variety 
of options for developing refuge alternatives that will maintain 
trapped miners. In addition, final Sec.  7.510 allows MSHA to approve 
refuge alternatives and components that incorporate new technology if 
the applicant demonstrates that the refuge alternative or component 
provides at least the same level of protection as those meeting the 
requirements of Subpart L--Refuge Alternatives.
    One commenter observed that, in at least two mines outside the 
United States, operators had installed backup systems for providing 
breathable air. Another commenter also supported backup systems for 
providing breathable air. While the final rule does not require the use 
of a secondary, independent breathable air component (a backup system), 
operators are encouraged to provide backup breathable air systems for 
use with refuge alternatives.
    One commenter suggested that the final rule include an option that 
would permit mines with existing exhaust ventilation systems to 
ventilate through boreholes to provide breathable air in the refuge 
alternative. The final rule does not permit this type of option because 
it is not reliable. Breathable air systems must be able to operate 
following an explosion or fire. Main mine fans are sometimes damaged by 
explosions and may not be operable following an explosion or fire.
    Final Sec.  7.506(b) clarifies the proposal and provides 
requirements that assist MSHA in evaluating the effectiveness, 
compatibility, and supply of the breathable air component. The final 
rule, which is substantively the same as the proposal, states that the 
procedures must be ``included'' rather than ``followed''.
    Final paragraph (b)(1) requires that mechanisms be provided and 
procedures be included so that, within the refuge alternative, the 
breathable air will sustain each person for 96 hours.
    Several commenters requested an explanation with respect to the 
requirement for providing 96 hours of breathable air, some stating that 
48 hours of breathable air would be sufficient. Other commenters 
supported the 96-hour requirement.
    Each mine emergency is a unique event and it is impossible to 
predict with precision the period of time required to maintain miners 
prior to rescue. To provide for an added margin of safety, the Agency 
has determined that it is necessary to require a 96-hour supply of 
breathable air. The 96-hour supply of breathable air in the final rule 
will assist the rescue effort by providing necessary time for rescuers 
to safely reach trapped miners. The depth of the mine, the geology of 
the overburden, and the terrain above the mine significantly affect 
rescue activities. Mine rescue protocol requires monitoring of mine 
atmospheres and assessing the risk prior to mine rescue teams entering 
the mine and making progressive steps underground toward trapped 
miners. Successful mine rescue progression often requires repairs to 
damaged infrastructure, e.g., roof control systems, and ventilation 
controls. History has shown there can be delays associated with 
implementing successful mine rescue protocols and procedures that can 
delay reaching trapped miners.
    In MSHA's February 8, 2007, PIB P07-03, the Agency stated that it 
considered 96 hours of breathable air to be necessary, and concluded 
that a 96-hour supply was warranted. In arriving at the 96-hour 
requirement in this final rule, MSHA reviewed recent and historical 
data on entrapments. While most safety and health professionals and 
researchers agree that refuge alternatives can sustain trapped persons, 
there is not general agreement on the amount of time that the refuge 
alternative should be capable of sustaining miners. After reviewing 
Agency data and comments, the Agency continues to believe that the 96-
hour requirement is necessary and the final rule is the same as 
proposed.
    Final paragraph (b)(2), like the proposal, requires that mechanisms 
be provided and procedures be included so that, within the refuge 
alternative, the oxygen concentration is maintained at levels between 
18.5 and 23 percent. This requirement is consistent with the NIOSH 
report.
    A commenter stated that the minimum oxygen level in refuge chambers 
should be 19.5 percent. Existing Sec.  75.321 requires that the air in 
areas where persons work or travel must contain at least 19.5 percent 
oxygen. MSHA believes that the recommendation in the NIOSH Report for a 
minimum of 18.5 percent will be adequate to sustain miners in the 
isolated atmosphere of the refuge alternative. Like the proposal, the 
final rule includes a range for oxygen due to the variety of oxygen 
delivery systems used. Further, MSHA has included the upper limit to 
lessen the risk of fire or explosion.
    MSHA believes that the atmosphere in refuge alternatives would 
experience levels of 18.5 percent only intermittently and of short 
duration and expects that the level of 19.5 percent would be available 
to persons for most of the time. Data show that short-term levels of 
18.5 percent are not harmful to the persons who are normally at rest, 
not working, and are not likely to experience difficulty breathing, 
conditions that are likely to be present in the refuge alternative. The 
Foster

[[Page 80670]]

Miller Report \3\ cites a large body of work, from a number of sources, 
indicating safe working levels for oxygen below 19.5 percent. Based on 
its review of comments and data, the Agency has kept the final rule the 
same as proposed.
---------------------------------------------------------------------------

    \3\ Foster Miller. Phase II Report, Chapter 4, Table 2, page 3, 
December 2007; and U.S. Bureau of Mines. Development of Guidelines 
for Rescue Chambers, Volume I, Table 2, page 20, October 1983.
---------------------------------------------------------------------------

    Final paragraph (b)(3) clarifies the proposal and requires that 
mechanisms be provided and procedures be included so that, within the 
refuge alternative, the average carbon dioxide concentration is 1.0 
percent or less, and excursions do not exceed 2.5 percent.
    MSHA calculated oxygen consumption rates for persons using a refuge 
alternative. Because most activity would involve sleeping or resting, 
and because a small amount of activity would involve taking readings or 
changing curtains, MSHA estimated activity levels of \4/5\ of the time 
at rest and \1/5\ of the time engaged in moderate activity. Oxygen 
consumption at the assumed breathing rate would be 1.32 cubic feet per 
hour per person (0.022 cubic feet per minute per person). These oxygen 
consumption rates were based on the U.S. Bureau of Mines, Foster Miller 
Report, ``Development of Guidelines for Rescue Chambers,'' Volume I, 
1983.
    In PIB P07-03, MSHA demonstrated the rate at which a person would 
experience adverse health effects from carbon dioxide if it were not 
removed from the environment. MSHA used air supply calculations and 
activity levels based on information provided in the Foster Miller 
report. The Agency used a hypothetical sealed space with a volume of 
1,800 cubic feet (20 feet long, 18 feet wide and 5 feet high) that 
contained one person. The initial air quality was assumed to be 19.5 
percent oxygen and 0.03 percent carbon dioxide, and the breathing rate 
(\4/5\ of the time at rest and \1/5\ of the time engaged in moderate 
activity) for oxygen inhaled is 0.022 cubic feet per minute per person.
    For this example, MSHA found that one person could be maintained 
49.5 hours in an 1,800 cubic foot enclosed space with an initial air 
quality of 19.5 percent oxygen and 0.03 percent carbon dioxide. This 
equates to 1.65 minutes per cubic foot of enclosed space (volume). 
Using these same parameters, 10 persons could be maintained for 4.95 
hours before the carbon dioxide concentration reached the defined 
unacceptable level of 3 percent based on Peele Mining Engineers' 
Handbook and MSHA's current Short Term Exposure Limit. Further, under 
the circumstances, 10 persons would reach 10 percent carbon dioxide and 
resulting unconsciousness in approximately 16.6 hours.
    One commenter stated that the MSHA requirement for carbon dioxide 
levels was too stringent and cited international standards that were 5 
percent. Several commenters discussed the ill effects of high levels of 
carbon dioxide and supported MSHA's proposal.
    The NIOSH report recommends that components operate to maintain 
carbon dioxide at or below the levels in the final rule (1 percent with 
excursions not exceeding 2.5 percent) and, based on a review of medical 
information, research, and accident experience, MSHA is aware of ill 
effects associated with exposure to concentrations of carbon dioxide 
greater than the levels in the final rule. MSHA reviewed international 
standards for safe levels of carbon dioxide and found none to be higher 
than 1.25 percent for extended periods. The concentrations of carbon 
dioxide in the enclosed atmosphere of a refuge alternative need to be 
within established limits to prevent debilitating or even lethal 
effects. Based on comment, data, and Agency experience, the final rule 
remains at 1 percent and excursions must not exceed 2.5 percent.
    Final Sec.  7.506(c) makes an editorial change, but is 
substantively the same as the proposal and requires that breathable air 
supplied by compressed air from cylinders, fans, or compressors provide 
a minimum flow rate of 12.5 cubic feet per minute (cfm) of breathable 
air for each person. Compressor air intakes should be installed and 
maintained to assure that only clean, uncontaminated air enters the 
compressors. In addition, compressors must have the capacity to deliver 
the required volume of air at the point of expected usage.
    MSHA notes that the use of compressed air cylinders as the sole 
means of providing breathable air may be impractical and the Agency 
encourages mine operators to consider other options. As MSHA pointed 
out in PIB P07-03, when using a borehole to deliver sufficient 
quantities of breathable air, a fan or equivalent method should be used 
to force fresh air into the hole with enough positive pressure to 
overcome total mine pressure.
    During the rulemaking process and at each public hearing, MSHA 
requested comments on the proposed flow rate and asked that commenters 
be specific including alternatives, rationale, safety benefits to 
miners, technological and economic feasibility, and supporting data.
    Several commenters opposed the proposal. Some of these commenters 
stated that the minimum flow rate was too high. Other commenters 
requested clarification that the minimum flow rate only applied when 
carbon dioxide is not scrubbed. One commenter suggested that the 
manufacturer determine flow rate based on the refuge alternative 
design.
    The minimum flow rate in this final rule is based on MSHA studies, 
comparisons with existing OSHA requirements, and engineering handbooks. 
MSHA has determined that the flow rate of 12.5 cfm is the minimum 
amount of air needed for respiration and dilution of carbon dioxide and 
other harmful gases. In addition, the 12.5 cfm flow rate assures 
positive pressure to prevent contamination from the mine atmosphere. 
This requirement applies to breathable air systems that do not 
incorporate carbon dioxide scrubbing components. The Agency's intent is 
for breathable air supplied by compressed air from cylinders, fans, or 
compressors to be used from the surface through a borehole or with an 
in-mine horizontal piping system that is protected from explosions. 
Based on comment, data, and Agency experience, the final rule remains 
the same as the proposal.
    Final paragraph (c)(1), like the proposal, provides requirements 
for fans or compressors. In PIB P07-03, MSHA provided a number of 
recommendations that should be followed when compressors are used to 
provide breathable air underground. These recommendations would also 
apply when fans are used for the same purpose. MSHA recommended that 
compressor air intakes should assure that only clean, uncontaminated 
air enters the compressors.
    Final paragraph (c)(1)(i), like the proposal, requires that fans or 
compressors be equipped with a carbon monoxide detector located at the 
surface that automatically provides a visual and audible alarm if 
carbon monoxide in supplied air exceeds 10 parts per million (ppm). 
This provision helps assure that harmful levels of carbon monoxide are 
not transferred into the refuge alternative. This requirement is the 
same as the carbon monoxide concentration in supplied breathable air 
from oil-lubricated compressors as established by OSHA in 29 CFR 
1910.134(i)(7), which will maintain uniformity in requirements for the 
use of this specialized equipment. Although the NIOSH recommended value 
of maximum concentration of carbon

[[Page 80671]]

monoxide is 25 ppm, MSHA believes that, based on the Agency's 
experience, controlling supplied air delivered to a refuge alternative 
should contain no more than 10 ppm.
    One commenter stated that a carbon monoxide detector should not be 
required when systems are not equipped with internal combustion 
engines. One commenter supported the proposed requirement for a carbon 
monoxide detector located on the surface.
    The final rule, like the proposal, requires the use of carbon 
monoxide detectors when fans and compressors are used on the surface. 
The Agency recognizes that compressors or fans may operate in the 
vicinity of other equipment having gas or diesel engines and the carbon 
monoxide detector safety feature is necessary to assure the persons in 
the refuge alternative are delivered uncontaminated air.
    Final paragraph (c)(1)(ii) merged proposed paragraphs (c)(1)(ii) 
and (iii) and requires fans or compressors to include in-line air-
purifying sorbent beds and filters or other equivalent means to assure 
the breathing air quality and prevent condensation. Further, it 
requires maintenance instructions that provide specifications for 
periodic replacement or refurbishment. Sorbent beds and filters and 
maintenance instructions help assure that the air quality is maintained 
and condensation is prevented.
    One commenter stated that purifying sorbent beds should not be 
required when systems are not equipped with internal combustion 
engines. Regardless of whether internal combustion engines are used, 
in-line air-purifying sorbent beds and filters or other equivalent 
means are necessary to assure the breathing air quality and to prevent 
condensation when fans and compressors are used on the surface.
    Final paragraph (c)(1)(iii) is redesignated from proposed paragraph 
(c)(1)(iv) and clarifies that fans or compressors provide positive 
pressure and an automatic means to assure that the pressure is relieved 
at 0.18 psi, or as specified by the manufacturer, above mine 
atmospheric pressure in the refuge alternative.
    Positive pressure in the refuge alternative that exceeds total mine 
pressure will prevent contamination and allow sufficient quantities of 
breathable air. An automatic means, such as a relief valve, must be 
provided to assure that the refuge alternative is not over-pressurized 
when breathable air is supplied. Excessive pressure creates adverse 
physiological effects. MSHA requested comments on the proposed setting 
for pressure relief and whether a higher pressure relief should be 
required.
    Some commenters stated that the proposed relief pressure should be 
modified, especially with inflatable refuge alternatives. Some 
commenters noted that most steel-type refuge alternatives have pressure 
relief set at 0.25 psi.
    The Foster Miller report specifies a minimum of 5 inches of water 
gauge overpressure in the refuge alternative which is equivalent to 
approximately 0.18 psi. Although most manufactured refuge alternatives 
presently have pressure relief valves set at 0.25 psi, too much 
pressure differential makes opening doors difficult for persons 
entering the refuge alternative. The final rule addresses all types of 
refuge alternatives and clarifies the required setting for pressure 
relief. For prefabricated units, the pressure must automatically be 
relieved at 0.18 psi, or as specified by manufacturer, above mine 
atmospheric pressure. For refuge alternatives consisting of 15 psi 
stoppings constructed prior to an event, the pressure must 
automatically be relieved at 0.18 psi above mine atmospheric pressure.
    Final paragraph (c)(1)(iv), redesignated from proposed paragraph 
(c)(1)(v), requires that fans or compressors include warnings to assure 
that only uncontaminated breathable air is supplied to the refuge 
alternative. MSHA expects that the warning could be a highly visible 
tag or label affixed to the supplied air fans or compressors stating 
that only uncontaminated breathable air may be supplied to the trapped 
persons in the refuge alternative. Care should be exercised when using 
compressors in the vicinity of other equipment having gas or diesel 
internal combustion engines because these engines emit toxic gases, 
such as carbon monoxide, sulfur dioxide, and nitrogen oxides, which can 
contaminate the air being supplied by the compressor. In addition, 
compressors requiring oil can generate carbon monoxide (CO) which can 
be supplied inadvertently to miners. Oil-type compressors could be 
used; however, the air quality should be sampled and controlled using 
carbon monoxide filtration. Oil-less compressors that do not generate 
carbon monoxide do not require carbon monoxide filtering.
    There were no comments related to the proposal. The final rule is 
unchanged from the proposal.
    Final paragraph (c)(1)(v), redesignated from proposed paragraph 
(c)(1)(vi), requires that fans or compressors include air lines to 
supply breathable air to the refuge alternative. Final paragraph 
(c)(1)(v)(A) requires that air lines be capable of preventing or 
removing water accumulation. This requirement helps prevent the 
accumulation of water, which could affect the quantity and quality of 
breathable air provided underground. MSHA understands that coal mines 
are not entirely horizontal and may contain dips where water can 
accumulate in the piping. Moisture-laden air should not be piped into 
the area where miners are trapped. If moisture is not removed, water 
could accumulate in the refuge alternative. MSHA anticipates air dryers 
with drain valves will be used. In addition, air lines or pipes that 
are pre-installed should be capped to prevent the entry of rain or 
moisture-laden air. If horizontal air lines or pipes are used, they 
should be provided with a means to automatically drain any water 
accumulation.
    One commenter requested that the proposal be modified to require 
the applicant to explain how preventing or removing water accumulation 
will be accomplished, if necessary, because many mines in the southwest 
desert do not have significant rainfall or humidity.
    Regardless of the location of the mine, all compressed air systems 
must have moisture removal capabilities because all atmospheric air 
contains water vapor. During compression, air temperature is increased 
significantly, which allows the air to retain moisture. After 
compression, air is typically cooled reducing its ability to retain 
water vapor. A proportion of this water vapor condenses into liquid 
water which must be removed, for example, by a drain fitted to the 
compressor after-cooler. The final rule is the same as the proposal.
    Under final paragraph (c)(1)(v)(B), air lines must be designed and 
protected to prevent damage during normal mining operations, a flash 
fire of 300[deg] Fahrenheit for 3 seconds, a pressure wave of 15 psi 
overpressure for 0.2 seconds, and ground failure. This requirement 
provides protection for air lines that come from boreholes or air lines 
from the surface that are extended underground to a refuge alternative. 
Operators could achieve protection required under this final rule by 
burying pipes by through trenching. Trenching would have to be deep 
enough to protect the pipes from mine traffic, explosions, ground 
movement, or equipment damage.
    One commenter supported the proposal, but stated that it may 
sometimes be impossible to protect air lines due to geologic 
conditions. MSHA recommended trenching and burying air

[[Page 80672]]

lines as one method of protecting air lines from damage; however, the 
final rule is performance-oriented, allowing other methods of 
protecting air lines to be used. The final rule remains unchanged from 
the proposal.
    Final paragraph (c)(1)(vi), redesignated and the same as proposed 
paragraph (c)(1)(vii), requires that fans or compressors assure that 
harmful or explosive gases, water, and other materials cannot enter the 
breathable air. Harmful gases could contaminate filters or other 
components or collect in the equipment and affect the quality of the 
air being supplied to trapped miners.
    There were no comments on this proposal and the final rule remains 
the same as the proposal.
    Final paragraph (c)(2) clarifies the proposal and requires that 
redundant fans or compressors and power sources be provided to permit 
prompt re-activation of equipment in the event of failure. This 
requirement assures that breathable air will be maintained in the event 
of failure of one of the sources of breathable air. The final rule 
clarifies that redundant fans or compressors and power sources are 
required rather than a ``redundancy of '' fans or compressors and 
``each power source'' in the proposal.
    There were no comments to this proposal and the final rule is 
substantively the same as the proposal.
    Final paragraph (d), like the proposal, provides requirements for 
compressed breathable oxygen. Final paragraph (d)(1) requires that 
compressed breathable oxygen include instructions for activation and 
operation. This information will assure that persons activating and 
operating the cylinders have the proper information to correctly 
perform the task so as to not imperil the lives of persons within the 
refuge alternative.
    One commenter suggested that the operating instructions cover 
adjustment of oxygen flow to prevent oxygen toxicity in the refuge 
alternative.
    Under the final rule, instructions should include topics such as 
adjusting oxygen flow rates and checking for loose connections, sounds 
of leaking gas, damage to hoses along the length or at the fittings, 
and broken gauges. These instructions assure that compressed air tanks 
are secure and pressure regulators are properly set and that wrenches 
and pliers will be in proper working order. Instructions could be 
developed from sources such as ASTM Stock No.: MNL 36, ``Safe Use of 
Oxygen and Oxygen Systems: Guidelines for Oxygen System Design, 
Materials Selection, Operations, Storage, and Transportation.''
    The final rule remains the same as the proposed rule.
    Final paragraph (d)(2), like the proposal, requires that 
compressed, breathable oxygen provide oxygen at a minimum flow rate of 
1.32 cubic feet per hour per person.
    One commenter supported the proposal, but requested clarification 
of the activity levels that MSHA relied on to support the proposed 
minimum flow rate.
    MSHA relied on the activity levels stated in PIB P07-03, which 
contains breathing rates and calculations for persons who need to use a 
refuge alternative. No commenters opposed the proposal. The final rule 
remains the same as the proposed rule.
    Final paragraph (d)(3), like the proposal, requires that compressed 
breathable oxygen include a means to readily regulate the pressure and 
volume of the compressed oxygen. Regulating compressed breathable 
oxygen is necessary to assure that oxygen levels remain within the 
recommended values. In addition, all oxygen valves should be opened 
slowly to prevent the oxygen from heating.
    One commenter agreed and no commenters opposed the proposal. The 
final rule remains the same as the proposed rule.
    Final paragraph (d)(4), like the proposal, would require that 
compressed breathable oxygen include an independent regulator as a 
backup in case of failure. It is crucial to maintain a continuous 
supply of breathable air to persons trapped underground.
    Some commenters opposed the proposal. These commenters stated that 
backup regulators are not necessary because these devices have been 
used for decades with an excellent safety record and minimal failure. 
Some commenters also stated that the proposal would require additional 
piping and fittings which would increase the risk of oxygen leaks.
    A backup regulator assures that breathable air will be maintained 
during an emergency. Based on MSHA's review of literature and system 
analyses, MSHA notes that there is the potential for failure and 
instances where regulators have failed. Persons who need to use the 
refuge alternative must be able to rely on oxygen regulators for 
survival. If a regulator fails during an emergency, it would take too 
much time and would be too difficult to repair and re-establish 
breathable air especially if persons inside the unit are injured. In 
addition, based on MSHA's review of costs, the Agency believes that the 
cost of a backup regulator is small compared to the cost of an entire 
unit. Further, the Agency believes that there is no additional risk of 
an oxygen leak because these regulators are safe to use and must be 
checked periodically to assure that they will function properly. 
Accordingly, backup regulators must be provided. The final rule remains 
the same as the proposed rule.
    Final paragraph (d)(5), like the proposal, requires that compressed 
breathable oxygen be used only with regulators, piping, and other 
equipment that is certified and maintained to prevent ignition or 
combustion. A compressed breathable oxygen system should not be used 
with a previously used compressed air system because a fire or 
explosion could occur when pure oxygen contacts oil and grease from the 
previously used compressed air system.
    One commenter supported the proposal. One commenter opposed the 
requirement for certified equipment and materials that are used 
downstream of the regulator because the equipment and materials carry 
oxygen that is not under high pressure and, therefore, is not a hazard. 
Based on MSHA's experience, the Agency believes that there is a risk of 
fire or explosion for all oxygen supply piping and equipment and, 
therefore, it is necessary that the equipment and materials be 
certified. The final rule remains the same as the proposal.
    In the final rule, MSHA has moved proposed Sec.  7.506(e) and (f) 
addressing carbon dioxide removal components' instructions and testing 
to final Sec.  7.508(a), (b), and (c) addressing harmful gas removal 
components. This move places all the instructions and testing 
requirements for harmful gas removal in the same section (discussed 
later in this preamble).
    The final rule does not include proposed Sec.  7.506(g), which 
addressed the use of respirators as a breathable air component. 
Proposed paragraph (g)(1) would have required respirators or breathing 
apparatus to be NIOSH-approved with a means of flow and pressure 
regulation. Proposed paragraph (g)(2) would have required that 
respirators or breathing apparatus be equipped with fittings that 
connect only to a breathable air compressed line. Proposed paragraph 
(g)(3) would have required that respirators or breathing apparatus 
allow for communication, and the provision of food and water while 
preventing the entry of any outside atmosphere. Proposed paragraph 
(g)(4) would have required that respirators or breathing apparatus be 
capable of being worn for up to 96 hours.
    Several comments opposed the use of respirators, citing 
uncertainties regarding the wearing of respirators for

[[Page 80673]]

prolonged periods. They also questioned how the respirator type system 
would provide refuge.
    After reviewing the comments, MSHA considered possible adverse 
effects that might be associated with respirator use and determined 
that this provision should not be included in the final rule. The use 
of respirators for 96 hours may present medical problems, such as lung 
damage due to lack of humidity or poisoning due to skin exposure to 
toxic gases. In addition, the use of masks would require special 
individual fitting to prevent leakage. Further, injured persons may not 
physically be able to don the mask. Accordingly, the final rule does 
not include the use of respirators as a breathable air component.
    Final paragraph (e) is redesignated from and clarifies proposed 
paragraph (h) and requires that an applicant prepare and submit an 
analysis or study demonstrating that the breathable air component will 
not cause an ignition. The final rule clarifies MSHA's intent that an 
analysis or study should evaluate the potential fire and ignition risks 
of breathable air components, equipment, or materials. Final paragraph 
(e)(1) requires that the analysis or study specifically address oxygen 
fire hazards and fire hazards from chemicals used for removal of carbon 
dioxide. Final paragraph (e)(2) requires that the analysis or study 
identify the means used to prevent any ignition source. These 
requirements minimize or prevent the inherent potential fire hazard 
from oxygen and the fire hazards from chemicals used for removal of 
carbon dioxide. Applicants should analyze inherent potential fire 
hazards and include a mitigation plan to minimize or prevent ignition 
of breathable air component equipment or materials.
    One commenter supported the proposal, stating that the analysis 
should be completed to assure all potential fire and ignition risks are 
analyzed and addressed by design. Another commenter suggested that 
there should be a Material Safety Data Sheet (MSDS) on everything 
within the refuge alternative because MSDSs have all the information 
requested in a form familiar to users.
    Under the final rule, fire and ignition hazards must be analyzed 
and addressed in the breathable air component design; however, 
applicants may provide MSDSs for persons using refuge alternatives. 
While the language has been changed slightly, the final rule 
requirements are the same as the proposal.
    Proposed paragraph (i), concerning fire extinguishers, is moved to 
final Sec.  7.504(c)(6).
Section 7.507 Air-Monitoring Components
    Final Sec.  7.507(a), like the proposal, requires that each refuge 
alternative have an air-monitoring component that provides persons 
inside with the ability to determine the concentrations of carbon 
dioxide, carbon monoxide, oxygen, and methane, inside and outside the 
structure, including the airlock. The ability to monitor these gases 
inside the refuge alternative is critical to the survival of persons 
occupying the refuge alternative. For example, monitoring methane 
minimizes possible oxygen deficiency or explosion. In addition, the 
ability to monitor the atmosphere outside the refuge alternative 
assists persons inside the refuge alternative in making crucial 
decisions regarding rescue and evacuation.
    One commenter stated that the air monitoring component should be 
portable and permit use inside and outside the refuge alternative. The 
final rule does not specify that the air monitoring component has to be 
either portable or fixed nor does it state that only electronic type 
instruments be used. Any measurements taken outside the refuge 
alternative should be through ports that prevent contamination of the 
refuge alternative. Under the final rule, monitoring outside the refuge 
alternative should be periodic, as needed, and would not need to be 
continuous. Pumps attached to hoses could be used to safely draw 
samples from outside the refuge alternative.
    One commenter supported the proposal to monitor the outside 
atmosphere while another commenter opposed the proposal, stating that 
persons should stay in the refuge alternative until rescued. MSHA 
believes that the measurement of the outside atmosphere will be 
important so that refuge alternative occupants will have necessary 
information to relay to rescuers on the surface and make crucial 
decisions regarding evacuation. MSHA reiterates the longstanding 
principle in mine rescue that miners should first attempt to evacuate 
the mine, and if evacuation is impossible, then retreat to the refuge 
alternative.
    One commenter stated that part 75 did not have a comparable 
monitoring requirement. This is not correct; the emergency response 
plan provision in part 75 requires monitoring inside and outside the 
refuge alternative.
    One commenter stated that the airlock monitoring requirement should 
be eliminated. The Agency believes that the monitoring of all the 
inside atmosphere, including the airlock, is necessary because persons 
occupying the refuge alternative will be accessing the airlock. The 
final rule remains as proposed.
    Final Sec.  7.507(b), like the proposal, requires that refuge 
alternatives designed for use in mines with a history of harmful gases, 
other than carbon monoxide, carbon dioxide, and methane, be equipped to 
measure those harmful gas concentrations. Some mines have a history of 
liberating harmful gases such as hydrogen sulfide, volatile 
hydrocarbons, or sulfur dioxide. The ability to detect and measure 
harmful gases is necessary for the safety of the persons using the 
refuge alternative.
    A commenter requested that the final rule specify each gas that 
would need to be monitored because monitors are gas specific. Under the 
final rule, the Agency intends that refuge alternatives designed for 
use in mines with a history of harmful gases, other than those 
mentioned, must be equipped to measure the gases encountered. 
Manufacturers will know the conditions in the mines in which their 
refuge alternatives will be used. The final rule remains as proposed.
    Final Sec.  7.507(c), like the proposal, requires that the air-
monitoring component be inspected or tested and the test results be 
included in the application. This requirement assures that the monitors 
or detectors are suitable for and will perform under mining conditions. 
Air monitoring component must be approved as intrinsically safe or 
permissible in accordance with the general requirements for approval of 
refuge alternative components under Sec.  7.504(a)(1).
    MSHA received no comments on the proposal. The final rule is the 
same as the proposal.
    In the final rule, MSHA has included proposed Sec.  7.507(d), 
addressing air-monitoring component approval numbers in the approval 
application, in final Sec.  7.503(2)(i), which addresses application 
requirements.
    Final Sec.  7.507(d), redesignated from proposed Sec.  7.507(e), 
like the proposal, addresses requirements for air-monitoring 
components. Final paragraph (d)(1) requires that the total measurement 
error, including the cross-sensitivity to other gases, not exceed 
10 percent of the reading, except as specified in the 
approval. Gas analyzer specifications under existing part 7, concerning 
diesel engine approvals under existing Sec.  7.86(b)(9), specify the 
gas analyzer instrument error, including

[[Page 80674]]

cross-sensitivity to other gases, as 5 percent. The 10 percent accuracy in this final rule allows for random and 
systematic errors in measurement. It is important to control the 
measurement error and cross-sensitivity because of the uncertainty 
inherent with the instrument and measurement, and the need for 
reproducibility of the instrument measurements. This final requirement 
is necessary to assure the readings taken by persons in the refuge 
alternative verify that the air is breathable and does not have the 
potential for fires and explosions.
    MSHA did not receive comments on this provision. The final rule 
remains the same as the proposal.
    Final paragraph (d)(2), redesignated from paragraph (e)(2), like 
the proposal, requires that the measurement error limits not be 
exceeded after start-up, after 8 hours of continuous operation, after 
96 hours of storage, and after exposure to atmospheres with a carbon 
monoxide concentration of 999 ppm (full-scale), a carbon dioxide 
concentration of 3 percent, and full-scale concentrations of other 
gases. Full-scale concentrations are those at the upper limit of the 
air monitoring instrument's capability to measure accurately within the 
instrument's error factor.
    This requirement allows persons using gas monitors or detectors to 
determine accurate gas concentrations throughout the duration of 
occupancy in the refuge alternative and at different parameters such as 
startup, after 8 hours of continuous operation, during storage when 
continuously exposed to the maximum recommended gas concentrations, and 
at other concentrations much higher than the recommended maximum 
values. It takes into account the effects high gas concentration levels 
may have on these measurements over extended periods of time. For 
example, MSHA reviewed the ANSI standard for carbon monoxide detection 
instruments to evaluate the performance testing of instruments at 
different levels of carbon monoxide, including high levels.
    A commenter stated that the proposed concentration of 999 ppm for 
carbon monoxide was too high and that the wording of the provision was 
unclear. MSHA reviewed data from previous accidents and found that a 
carbon monoxide concentration of 999 ppm may exist following an 
explosion or fire. It is necessary to evaluate the effects of the 
higher concentrations on the instruments because the higher limits may 
exist prior to purging the airlock. The carbon monoxide limit for the 
atmosphere inside the refuge alternative is 25 ppm. After considering 
the comments, the Agency has determined that the final rule should 
remain the same as the proposal.
    Final paragraph (d)(3), redesignated from proposed paragraph 
(e)(3), like the proposal, requires that calibration gas values be 
traceable to the National Institute for Standards and Technology (NIST) 
``Standard Reference Materials'' (SRMs). This requirement, which is 
based on existing Sec.  7.86(b)(16), assures that the air-monitoring 
equipment is properly calibrated. The NIST SRMs are recognized and 
accepted industry standards. There were no comments to the proposal. 
The final rule is the same as the proposal.
    Final paragraph (d)(4) merged proposed paragraphs (e)(4) and (e)(5) 
and requires that the analytical accuracy of the calibration gas and 
span gas values be within 2.0 percent of NIST gas standards. This 
requirement is based on existing Sec.  7.86(b)(16) and (17), which also 
reference analytical accuracy of calibration gases within 2.0 percent 
of NIST gas standards.
    There were no comments on the proposal. The final rule is 
substantively the same as the proposal.
    Final paragraph (d)(5), redesignated from proposed paragraph 
(e)(6), like the proposal, requires that the detectors must be capable 
of being kept fully charged and ready for immediate use. This 
requirement assures that persons using refuge alternatives have 
detectors that are reliable and ready for use.
    One commenter stated that keeping the detector batteries charged 
requires too much maintenance. The final rule requires that the methods 
of charging and calibrating be stated in the emergency response plan. 
It is imperative that the detectors be inspected and ready for 
immediate use in the event of an emergency that requires using the 
refuge alternative. After considering the comments, the final rule 
remains the same as the proposal.
Section 7.508 Harmful Gas Removal Components
    Final Sec.  7.508, like the proposal, provides requirements for 
harmful gas removal. Final paragraph (a)(1) requires that purging or 
other effective procedures be provided for the airlock to dilute the 
carbon monoxide concentration to 25 ppm or less and the methane 
concentration to 1.0 percent or less as persons enter, within 20 
minutes of persons deploying the refuge alternative.
    Some commenters opposed the 25 ppm carbon monoxide limit and 
suggested a limit of 50 ppm. One commenter stated that a 50 ppm level 
will reduce the required time in the airlock and allow persons to enter 
the refuge main chamber more quickly. This commenter added that further 
dilution will occur between the airlock and the main chamber of the 
refuge alternative estimating that the time it takes to reach 50 ppm 
will be 25 percent shorter than the time it takes to reach 25 ppm.
    MSHA understands that the airlock may contain carbon monoxide 
concentrations as high as 50 ppm when persons are entering the refuge 
alternative. The carbon monoxide concentration of 50 ppm recommended by 
some commenters is generally based on an 8-hour exposure per day. 
However, after all persons have entered the refuge alternative, the 
interior of the refuge alternative, including the airlock, must be 
maintained at 25 ppm or less because, under the final rule, the airlock 
is usable space that persons may occupy. MSHA reviewed other standards 
pertaining to carbon monoxide exposure, and considered that persons 
could be entrapped for periods up to 96 hours. For these reasons, the 
final rule remains at 25 ppm for carbon monoxide, since the Agency 
believes that the interior space of the refuge alternative must be 
maintained at this level. This carbon monoxide limit is consistent with 
the NIOSH report. The methane concentration limit has been changed from 
the proposal to be consistent with existing standards governing methane 
limits.
    One commenter stated that MSHA should clarify that purge air must 
be in addition to the 96 hours of breathable air that each person must 
have. Under the final rule, MSHA intends that the air that is used to 
purge the airlock must be in addition to the breathable air needed to 
sustain persons for 96 hours.
    One commenter stated that the entire interior, and not just the 
airlock, should be purged. The final rule, like the proposal, provides 
that refuge alternatives should be configured to assure that the inside 
air is isolated from the mine atmosphere, which minimizes the quantity 
of purge air needed to purge the interior space. An airlock, which 
provides a transition area between the mine atmosphere and the refuge 
alternative's interior space, minimizes contamination of the interior 
space. Therefore, airlocks need to be capable of removing contaminants 
or configured in a way that assures that contaminated mine atmosphere 
is prevented from migrating through the airlock into the interior space 
of the refuge alternative. This requirement assures that contaminated 
air is forced

[[Page 80675]]

out of the refuge alternative. Purge air should be provided from 
compressed air cylinders.
    Another commenter stated that purging the airlock within 20 minutes 
of persons activating the refuge alternative is an excessive amount of 
time. Based on MSHA's experience, the Agency believes that 20 minutes 
to purge the airlock and to establish a breathable air atmosphere is 
appropriate and necessary.
    One commenter requested clarification of the initial concentration 
of methane so that purge air volumes can be computed. The final rule 
does not specify an initial concentration of methane, but the Agency 
expects that the initial test concentration, prior to purging, should 
be a minimum of 12 percent.
    Another commenter stated that MSHA should specify that all flow 
rates be defined at ``Standard Temperature and Pressure'' (STP) 
conditions, ``including the assumptions of CO2 production 
from humans.'' The Agency contacted an author of the Foster Miller 
Report and determined that 60 [deg]F was used as the standard 
temperature and that there is general agreement that 14.7 psi is the 
standard pressure at 1 atmosphere. Because approved permissible 
electrical components may be present in the refuge alternative, in the 
final rule, the proposed 1.5 percent concentration of methane was 
reduced to 1.0 percent to be consistent with existing Sec.  
75.323(b)(1)(i) and (ii).
    Final paragraph (a)(2), like the proposal, requires that chemical 
scrubbing or other effective procedures be provided so that the average 
carbon dioxide concentration in the occupied structure does not exceed 
1.0 percent over the rated duration and excursions do not exceed 2.5 
percent. Carbon dioxide is an asphyxiant produced by human respiration. 
The carbon dioxide concentration limit is consistent with the NIOSH 
report.
    To prevent the accumulation of harmful concentrations of carbon 
dioxide, scrubbing systems have been developed to chemically absorb the 
carbon dioxide. Carbon dioxide scrubbing systems may be active or 
passive. Passive systems rely solely on natural air currents for the 
air to react with the chemical bed. Passive system chemicals are 
usually packaged in curtains. These curtains would be suspended in the 
refuge chamber. Active systems force air through a chemical bed by fans 
or compressed air, and are generally more efficient than passive 
systems.
    One commenter supported and no commenters opposed the proposal. The 
final rule is the same as proposed with one editorial change.
    Final paragraph (a)(2)(i), redesignated from proposed Sec.  
7.506(e)(2), like the proposal, requires that carbon dioxide removal 
components be used with breathable air cylinders or oxygen cylinders. 
Carbon dioxide removal components must be compatible with the overall 
system for providing breathable air. The carbon dioxide removal systems 
are dependent on the occupancy and volume of the refuge alternative. 
The breathable air system is also dependent on those same factors.
    One commenter supported and no commenters opposed the proposal. The 
final rule is the same as proposed.
    Final paragraph (a)(2)(ii), redesignated from proposed Sec.  
7.506(e)(3), like the proposal, requires that carbon dioxide removal 
components remove carbon dioxide at a rate of 1.08 cubic feet per hour 
per person. As stated previously, MSHA is assuming that breathing rates 
for persons who have reached refuge alternatives reflect activity 
levels of \4/5\ at rest and \1/5\ moderate activity. Therefore, using 
the respiratory quotient, which is the ratio of CO2 expelled 
to O2 consumed, the average carbon dioxide generation is 
1.08 cubic feet per hour per person. These breathing rates were based 
on the Foster Miller report.
    One commenter supported and no commenters opposed the proposal. The 
final rule is the same as proposed with one editorial change.
    Final paragraph (a)(3), redesignated from proposed Sec.  
7.506(e)(1), requires that harmful gas removal components must include 
instructions for deployment and operation. The final rule clarifies 
that instructions are required for harmful gas removal components, 
which include carbon dioxide removal components.
    One commenter supported and no commenters opposed the proposal. The 
final rule is substantively the same as the proposal.
    Final paragraph (b), like the proposal, addresses requirements for 
each chemical used for removal of harmful gas. Final paragraph (b)(1), 
like the proposal, requires that each chemical for removal of harmful 
gas be contained such that when stored or used it cannot come in 
contact with persons and it cannot release airborne particles. This 
provision is consistent with the NIOSH report which stated that the 
scrubbing material must not become airborne or otherwise cause 
respiratory distress or other acute reaction.
    Because harmful gas removal chemicals are caustic, each would need 
to be contained. One way of packaging these chemicals is in curtains or 
cartridges that are isolated so that contact with or exposure to the 
chemicals is prevented. For example, commonly used CO2 
removal systems include lithium hydroxide or soda lime curtains or soda 
lime cartridges. These curtains or cartridges assure that persons do 
not contact the caustic chemicals, which can cause burns. Chemicals 
must be activated without compromising the packaging materials and 
exposing persons to chemical hazards.
    MSHA received no comments on this proposal. The final rule includes 
proposed Sec.  7.506(e)(4), concerning carbon dioxide removal 
components, and contains editorial changes, but remains substantively 
the same as the proposal.
    Final paragraph (b)(2) requires that each chemical used for removal 
of harmful gas be provided with all materials; parts, such as hangers, 
racks, and clips; equipment; and instructions necessary for its 
deployment and use. Depending on the type of CO2 removal 
system, instructions could include deployment and proper handling of 
materials. These instructions would assure that mine operators have the 
proper information to correctly perform tasks involving carbon dioxide 
removal components. This provision clarifies the proposal and will 
expedite deployment of the scrubbing system to reduce start-up time and 
make the system easy to use for the occupants. MSHA's intent is that 
the steps required to deploy the harmful gas removal component should 
not be difficult and should be designed on a per-person incremental 
basis to make the system easily understood by occupants.
    MSHA received no comments on the proposal. The final rule includes 
proposed Sec.  7.506(e)(1) and (5) concerning carbon dioxide removal 
components, but remains substantively the same as the proposal.
    Final paragraph (b)(3), like the proposal, requires that each 
chemical used for removal of harmful gas be stored in an approved 
container that is conspicuously marked with the manufacturer's 
instructions for disposal of used chemicals. This requirement assures 
appropriate containment during shipping and storage. MSHA's intent is 
that an approved container is one that is accepted under general 
chemical industry practice and appropriate for pre-deployment transport 
and storage. Deployment and disposal instructions should be provided to 
assure persons are not exposed or otherwise injured while handling 
chemicals.

[[Page 80676]]

    MSHA received no comments on the proposal. The final rule includes 
proposed Sec.  7.506(e)(6) concerning carbon dioxide removal 
components, but remains substantively the same as the proposal.
    Final Sec.  7.508(c), like the proposal, provides requirements for 
testing each harmful gas removal component to determine its ability to 
remove harmful gases. Final paragraph (c)(1) requires that the 
component be tested in a refuge alternative structure that is 
representative of the configuration and maximum volume for which the 
component is designed. The requirement assures that the test results 
are representative of actual conditions.
    A commenter stated that purging a contaminated space should not be 
an accepted practice unless the purging process can be proven totally 
effective at providing a safe, livable atmosphere for all of the 
occupants in every situation. Under the final rule, test results should 
confirm that purging or scrubbing is effective in removing harmful 
gases. If the data are from small-scale tests or prototype testing, 
interpretations and assumptions should represent full-scale 
performance.
    One commenter supported the proposal. The final rule makes 
editorial changes, but is substantively the same as proposed.
    Final paragraph (c)(1)(i), like the proposal, requires that the 
test include three sampling points located vertically along the 
centerlines of the length and width of the structure and equally spaced 
over the horizontal centerline of the height of the structure. The 
required sampling points assure an accurate representation of the gas 
concentration found in the middle of the structure as opposed to the 
ends, corners, top, sides, or bottom.
    MSHA did not receive comments on the proposal; the final rule is 
the same as the proposal.
    Final paragraph (c)(1)(ii), like the proposal, requires that the 
structure be sealed airtight. This requirement helps prevent 
contamination which could interfere with the testing. MSHA did not 
receive comments on the proposal; the final rule is the same as the 
proposal.
    Final paragraph (c)(1)(iii), like the proposal, requires that the 
operating gas sampling instruments be placed inside the structure and 
continuously exposed to the test atmosphere. This requirement is 
necessary to assure that the instruments operate as designed in the 
actual space and representative atmosphere including higher 
temperatures and humidity.
    A commenter stated that the electronics of some precision carbon 
dioxide analyzers can be affected by high temperature and humidity and 
can negatively impact analyzer accuracy. MSHA intends that the tests 
required by the final rule will verify the accuracy of the instruments 
in high temperature and high humidity to assure that measurements are 
accurate.
    One commenter recommended that as an alternative, the final rule 
permit external analyzers and require that these analyzers have a 
response time of less than 1.5 minutes and that a minimum 99.5% of 
sampled gases be returned into the refuge alternative. An external 
analyzer would be inappropriate for tests requiring the monitors to be 
exposed to the inside atmosphere. However, an external analyzer would 
be acceptable as a supplemental testing instrument for this test. MSHA 
would allow for tests of gas monitoring components to be simultaneous 
with the harmful gas removal tests.
    After evaluating the comments, MSHA has determined that the final 
rule should remain the same as the proposal.
    Final paragraph (c)(1)(iv), like the proposal, requires that the 
sampling instruments simultaneously measure the gas concentrations at 
the three sampling points. Simultaneous sampling helps determine the 
interior atmosphere at different locations at a given point in time, 
eliminates any sampling variability introduced by sequential sampling, 
and determines if a homogenous atmosphere is maintained throughout the 
refuge alternative.
    MSHA received no comments on the proposed provision; the final rule 
is the same as the proposal.
    Final paragraph (c)(2) is substantively the same as the proposal 
and requires that when testing the component's ability to remove carbon 
monoxide, the structure be filled with a test gas of either purified 
synthetic air or purified nitrogen that contains 400 ppm carbon 
monoxide, 5 percent. The final rule includes the 5 percent to be consistent with final paragraph (c)(2)(i). The 
400 ppm testing concentration was selected based on the American 
Conference of Industrial Hygienists (ACGIH) Short Term Exposure Limit 
(STEL). The test should determine the performance of the gas 
purification/decontamination system in achieving gas concentration 
level reductions for the entire ingress/egress process at maximum 
occupancy. MSHA received no comments on the proposal.
    Final paragraph (c)(2)(i), like the proposal, requires that, after 
a stable concentration of 400 ppm, 5 percent, carbon 
monoxide has been obtained for 5 minutes at all three sampling points, 
a timer be started and the structure purged or CO otherwise removed. 
The stabilization of the concentration will assure that gas is 
distributed throughout the structure and the test is properly 
performed.
    MSHA received no comments on the proposed provision; the final rule 
is the same as the proposal. Comments related to the ending 
concentration were addressed earlier in the harmful gas removal 
section.
    Final paragraph (c)(2)(ii), like the proposal, requires that the 
carbon monoxide concentration readings from each of the three sampling 
instruments be recorded every 2 minutes. This requirement assures that 
there are sufficient data points to constitute a valid test. Recording 
should continue until stabilization is reached at the lowest 
concentration.
    MSHA received no comments on the proposed provision; the final rule 
is the same as the proposal.
    Final paragraph (c)(2)(iii), like the proposal, requires that the 
time be recorded from the start of harmful gas removal until the 
readings of the three sampling instruments all indicate a carbon 
monoxide concentration of 25 ppm or less. This requirement assures that 
the time to remove carbon monoxide and deploy the refuge alternative is 
less than the time to deplete the SCSR. All occupants should be able to 
be located safely inside the refuge alternative prior to depletion of 
their SCSRs.
    Comments related to the 25 ppm concentration were addressed earlier 
in this section. The final rule makes editorial changes, but is 
substantively the same as the proposal.
    Final Sec.  7.508(c)(3), redesignated from proposed Sec.  7.506(f), 
requires that the carbon dioxide removal component be tested to 
demonstrate that it can maintain average carbon dioxide concentration 
at 1.0 percent or less, with excursions not to exceed 2.5 percent under 
the following conditions: (i) at 55 [deg]F (4 [deg]F), 1 
atmosphere (1 percent), and 50 percent (5 
percent) relative humidity; (ii) at 55 [deg]F (4 [deg]F), 1 
atmosphere (1 percent), and 100 percent (5 
percent) relative humidity; (iii) at 90 [deg]F (4 [deg]F), 
1 atmosphere (1 percent), and 50 percent (5 
percent) relative humidity; (iv) at 82 [deg]F (4 [deg]F), 1 
atmosphere (1 percent), and 100 percent (5 
percent) relative humidity. MSHA uses the standard error terminology of 
5 percent, but recognizes that +5 percent does not apply to 
relative humidity at 100 percent. This requirement is consistent with 
the NIOSH report.

[[Page 80677]]

    Some CO2 scrubbing components may not perform as well as 
others. The most commonly used CO2 scrubbing chemicals 
performed within an acceptable range in underground mines. Testing 
under final paragraphs (c)(3)(i) through (iv) represents extreme 
conditions that CO2 scrubbing components may be exposed to 
in underground coal mines. The increased temperature and humidity 
ranges reflect increases in the occupancy of a refuge alternative, 
although MSHA assumes that some body heat and moisture generation will 
be dissipated through the refuge alternative into the mine air, roof, 
ribs, and floor. Testing and evaluation of the CO2 scrubbing 
components will enable mine operators to make informed choices in 
selecting scrubbing components.
    One commenter stated that there is difficulty in controlling 
humidity to these extremely tight tolerances and that there is 
difficulty in measuring relative humidity to the required level of 
precision in the proposed rule. The commenter added that very high 
quality chilled mirror humidity sensors are typically unable to measure 
100 percent relative humidity to 5 parts in 1,000. Other comments 
included questions concerning the temperatures and if they were 
starting values only, and if the four temperatures were to be 
maintained throughout the test. Another comment recommended that the 
requirements specify that the addition of water vapor into the testing 
chamber be maximized at the metabolic rate being simulated.
    The proposed tolerances for humidity were based on an instrument 
specification and not a measurement specification. However, based on 
comments, MSHA believes that there could be difficulty in measuring 
relative humidity to the proposed level of precision. Therefore, MSHA 
has changed the proposed tolerances for relative humidity to 5 percent.
    Under the final rule, MSHA has not changed the proposed tolerances 
for temperature. Temperature must be measured inside the refuge 
alternative, and held constant within the tolerances of 4 
[deg]F. Tests should simulate the occupancy and accurate metabolic 
rates per number of persons.
    Final paragraph (c)(4) is new and requires that testing demonstrate 
the component's continued ability to remove harmful gases effectively 
throughout its designated shelf-life, specifically addressing the 
effects of storage and transportation.
    One commenter requested that the harmful gas removal component be 
subjected to shock testing prior to approval. In response to this 
comment, MSHA believes that there may be potential chemical degradation 
associated with time, transport, and environmental conditions. The 
final rule, however, does not include a specific requirement for shock 
testing. Instead, it includes a performance-oriented requirement that 
testing demonstrate the component's continued ability to remove harmful 
gases effectively throughout its designated shelf-life.
    Final paragraph (d), like the proposal, provides that alternate 
performance tests may be conducted if the tests provide the same level 
of assurance of the harmful gas removal component's capability as the 
tests specified in this final rule. If the applicant plans to use 
alternate tests, they must be specified in the approval application. 
The applicant must demonstrate that the alternate tests will assure the 
same degree of protection as that provided in this final rule. There 
were no comments on the proposal; the final rule is the same as the 
proposal.
Section 7.509 Approval Markings
    Final Sec.  7.509(a), like the proposal, requires that each 
approved refuge alternative or component be identified by a legible, 
permanent approval marking that is securely and conspicuously attached 
to the component or its container. The marking should be placed to 
avoid damage or removal.
    Final Sec.  7.509(b) clarifies the proposal and requires that each 
approval marking be inscribed with the component's MSHA approval 
number, and any additional markings required by the approval. The final 
rule clarifies MSHA's intent that the approval marking be ``inscribed 
with the component's MSHA approval number'' rather than ``include the 
refuge alternative's and component's MSHA approval number''. In 
addition, the final rule does not include the proposed expiration date.
    Final paragraphs (a) and (b) assure that only approved materials 
and components are used in refuge alternatives. MSHA did not receive 
any comments on the proposal. The final rule makes clarifications, but 
is substantively the same as the proposal.
    Final Sec.  7.509(c), like the proposal, requires that each refuge 
alternative structure provide a conspicuous means for indicating an 
out-of-service status, including the reason it is out of service. This 
requirement will provide information necessary for maintenance and 
repair.
    MSHA did not receive any comments on the proposal. The final rule 
is the same as the proposal.
    Final paragraph Sec.  7.509(d), like the proposal, requires that 
the airlock be conspicuously marked with the recommended maximum number 
of persons that can use it at one time. This requirement assures that 
the airlock will be used as intended to allow safe passage of persons 
and to prevent any contamination of the interior space atmosphere.
    MSHA did not receive any comments on the proposal. The final rule 
is the same as the proposal.
Section 7.510 New Technology
    Final Sec.  7.510, like the proposal, provides that MSHA may 
approve a refuge alternative or a component that incorporates new 
knowledge or technology, if the applicant demonstrates that the refuge 
alternative or component provides no less protection than those meeting 
the requirements of the final rule. Because some aspects surrounding 
the use of refuge alternatives involve developing technology, MSHA 
believes that innovations in technology will continue, resulting in 
further improvements in miner safety and health. The final rule would 
permit applicants to incorporate technological improvements so long as 
they provide equivalent protection to that in the final rule.
    MSHA believes that credible scientific research supports the use of 
refuge alternatives. Refuge alternatives are technologically feasible. 
They use commercially available technology that can reasonably be 
integrated into most coal mining operations dependent upon specific 
physical characteristics of the mine. MSHA recognizes that using refuge 
alternatives in low coal mines could be problematic. Certain types of 
refuge alternatives may not be feasible in low coal mines. During the 
rulemaking process and at each of the public hearings, MSHA 
specifically solicited comment on the use of refuge alternatives in low 
coal mines, and asked that commenters be specific including 
alternatives, rationale, safety benefits to miners, technological and 
economic feasibility, and supporting data.
    One commenter stated that miners at low coal mines deserve the same 
protection as those working in high seams. Another commenter stated 
that prefabricated units are available as short as 27 inches for low 
coal. The NIOSH report stated that ``it may be impractical to implement 
viable refuge alternatives in the few mines that operate in very

[[Page 80678]]

low coal, e.g., less than 36 inches.'' In response to commenters' 
concerns regarding the ability to maneuver, deploy, or use larger units 
in mines with low seam heights, the final rule has changed the proposed 
volume requirements to take mining height into consideration.
    MSHA believes that the requirements in the final rule are feasible. 
Refuge alternatives are currently being manufactured for, and some are 
currently in place in, underground coal mines. The Agency will continue 
to work with NIOSH and the mining community as refuge alternative 
technology continues to evolve and will inform the mining community of 
any changes in technology. MSHA recognizes that it may not be feasible 
in every case to install a refuge alternative in accordance with all of 
the requirements in the final rule. In addition, MSHA recognizes that 
some aspects of refuge alternatives involve developing technology, for 
example, wireless communications facilities and means of controlling 
the temperature inside refuge alternatives.
    All refuge alternative components are currently available. MSHA may 
approve refuge alternatives or components that incorporate new 
technology, if the applicant demonstrates that the refuge alternative 
or components provide no less protection than those meeting the 
requirements of the final rule.

B. Part 75 Safety Standards

Section 75.221 Roof Control Plan Information
    Final Sec.  75.221(a)(12), like the proposal, requires that the 
operator describe the roof and rib support necessary for the refuge 
alternative in the roof control plan. Some commenters supported the 
proposal. Other commenters stated that the roof support specified in 
the mine's roof control plan should be sufficient and that additional 
roof support may not be necessary in all cases.
    Roof and rib falls could damage a refuge alternative and compromise 
its integrity. Humidity, fire, vibration, shock, and thermal effects 
may require the use of additional roof support for areas housing refuge 
alternatives. Due to the vital role of refuge alternatives in the event 
of an emergency, mine operators must plan for their location and assure 
that they are adequately protected from possible roof and rib falls. 
MSHA encourages the mine operator to prepare locations for refuge 
alternatives in advance. If additional roof or rib support is needed to 
protect these units at the selected locations, the operator must 
describe it in the mine's roof control plan. MSHA agrees that with 
proper advance planning, additional roof support may not be necessary 
in all cases. The final rule requires additional support, if necessary. 
If the roof support in the operator's existing plan is sufficient to 
protect the refuge alternative, the operator must so state.
Section 75.313 Main Mine Fan Stoppage With Persons Underground
    Final Sec.  75.313(f) clarifies the proposal and requires that any 
electrical components exposed to the mine atmosphere be approved as 
intrinsically safe for use during fan stoppages. It also requires that 
any electrical components located inside the refuge alternative be 
either approved as intrinsically safe or approved as permissible for 
use during fan stoppages.
    Commenters generally supported the proposal that electric-powered 
components operated during fan stoppages be intrinsically safe. Some 
suggested that permissible electrical equipment that is located inside 
the refuge alternative also be allowed to operate during fan stoppages.
    Mine explosions, mine fires, and coal bumps and bounces may 
compromise the mine ventilation system resulting in a mine fan 
stoppage. A refuge alternative that is normally located in intake air 
may be exposed to a potentially explosive mixture of methane in the 
aftermath of a mine emergency. Similar to existing Sec.  75.313(e), the 
final rule clarifies MSHA's intent that only approved intrinsically 
safe electrical components that are exposed to the mine atmosphere are 
allowed to be operated during fan stoppages. However, electrical 
components that are located inside the refuge alternative would not be 
exposed to an explosive mixture of methane. The atmosphere inside the 
refuge alternative is isolated, secure, and monitored for harmful 
gases. Therefore, after considering comments, the final rule clarifies 
MSHA's intent by including a provision that electrical components 
located inside the refuge alternative be either approved as 
intrinsically safe or approved as permissible for use during fan 
stoppages.
Section 75.360 Preshift Examination at Fixed Intervals
    Final Sec.  75.360(d) makes an editorial change, but is 
substantively the same as the proposal. It requires that the person 
conducting the preshift examination check the refuge alternative for 
damage, the integrity of the tamper-evident seal and the mechanisms 
required to deploy the refuge alternative, and the ready availability 
of compressed oxygen and air.
    During the rulemaking process and at all the public hearings, MSHA 
requested specific comments on the visual damage that would be revealed 
during the preshift examinations, and asked that commenters be specific 
including alternatives, rationale, safety benefits to miners, 
technological and economic feasibility, and supporting data. The Agency 
was concerned with the feasibility and practicality of visually 
checking the status of refuge alternatives without having to enter the 
structure or break the tamper-evident seal.
    Commenters supported examinations of refuge alternatives, but 
offered differing opinions on the extent and frequency of these 
examinations. Some commenters supported preshift examinations, while 
others supported weekly examinations, examinations following 
relocation, or examinations based on the manufacturer's 
recommendations. In addition, some commenters favored examinations of 
the exterior and some of the interior components based on the design, 
while others favored only exterior examinations.
    Most commenters agreed with MSHA that refuge alternatives may be 
damaged by persons, mining equipment, or the mine environment. Damage 
may also occur when the unit is moved. Damage could consist of sheared 
bolts or dents which affect the proper functioning of the unit. Also, 
compressed gas storage systems may leak.
    Due to the critical purpose of refuge alternatives, the final rule 
requires that refuge alternatives be examined as part of the preshift 
examination. Because preshift examinations occur on a routine basis, 
they will assure that potentially dangerous conditions are detected and 
corrected before refuge alternatives are used and that the refuge 
alternatives are operational when needed.
    Some commenters requested clarification of the extent or degree of 
the examination. Under this final rule, the preshift examination 
consists of an examination of the complete structure that is made 
without entering the unit to detect visible damage to the refuge 
alternative structure and damage to the tamper-evident seal. The 
examination includes observing the gauges showing the ready 
availability of compressed oxygen and air. The examination should 
include observing the battery status and testing the communications 
system. If the preshift examination reveals that the tamper-evident 
seal or other evidence indicates unauthorized entry or tampering, 
further examination of the refuge alternative and components

[[Page 80679]]

should be conducted to assure that the unit, components, and provisions 
are not damaged and that components and provisions are not missing. 
Following this examination, the seal or other means should be 
immediately replaced.
Section 75.372 Mine Ventilation Map
    Final Sec.  75.372(b)(11), like the proposal, requires that the 
location of all refuge alternatives be shown on the mine ventilation 
map. Some commenters supported the proposal. One commenter opposed the 
proposal stating that the location of each refuge alternative should 
only be indicated on the escapeway map.
    This requirement facilitates an evaluation of the effectiveness of 
a potential refuge alternative location. The location of the refuge 
alternative in relationship to potential hazards such as seals and oil 
and gas wells will be evaluated during the ventilation map review. The 
mine ventilation map is often used as a reference during mine rescue 
efforts. Plotting refuge alternatives on the ventilation map and 
knowing their accurate locations could aid decisions during rescue 
operations.
Section 75.1200-1 Additional Information on Mine Map
    In the final rule, MSHA has added new Sec.  75.1200-1(n) to clarify 
the proposal that the locations of refuge alternatives are additional 
information that must be shown on the mine maps required under existing 
Sec.  75.1200. Commenters generally supported including this 
information on the mine map. One commenter stated that the mine 
communication system and its relationship to the location of each 
refuge alternative should be identified on the official mine map every 
time that either is relocated. The commenter also stated that the 
refuge alternative location should be posted on the mine map no later 
than the end of the shift following relocation. One commenter opposed 
the proposal stating that the refuge alternatives should only be 
indicated on the escapeway map.
    The existing Sec.  75.1200 mine map forms the basis for decisions 
made during mine rescue efforts. Plotting refuge alternatives on the 
mine map allows the mine rescue decision makers to determine where 
miners may be sheltered after a mine emergency. This information will 
be critical to mine rescue personnel in locating trapped persons. 
Because each refuge alternative must have a communication facility that 
is part of the mine communication system, this final rule does not 
include a provision requiring the mine communication system to be 
identified on the mine map relative to the location of each refuge 
alternative every time that either is relocated. Moreover, existing 
Sec.  75.1202-1 already requires that the mine map be kept up-to-date 
by temporary notations. Final Sec.  75.1200-1(n) addressing the 
location of refuge alternatives on the mine map is added to be 
consistent with other requirements in part 75.
Section 75.1202-1 Temporary Notations, Revisions, and Supplements
    Final Sec.  75.1202-1(b)(4), like the proposal, requires the new 
location of a refuge alternative to be shown on the mine map with 
temporary symbols each time it is moved. MSHA received one comment 
supporting this proposal.
    Knowing the locations of refuge alternatives is critical to 
effective decision-making during rescue operations; refuge alternatives 
must be kept current on the mine map. The final rule is the same as the 
proposal.
Section 75.1500 Emergency Shelters
    In the final rule, like the proposal, Sec.  75.1500 is removed and 
reserved. The statutory provisions are being deleted and replaced with 
specific requirements for refuge alternatives in existing Sec. Sec.  
75.1501, 75.1502, 75.1504, and 75.1505 and new Sec. Sec.  75.1506, 
75.1507, 75.1508, and 75.1600-3. MSHA received one comment supporting 
the proposal.
Section 75.1501 Emergency Evacuations
    Final Sec.  75.1501(a)(1), like the proposal, requires that the 
responsible person know the locations of refuge alternatives. MSHA 
received one comment supporting the proposal.
    Under the final rule, the designated responsible person must have 
current knowledge of the locations, types, and capacities of refuge 
alternatives to make necessary informed mine evacuation decisions in 
the event of an emergency.
Section 75.1502 Mine Emergency Evacuation and Firefighting Program of 
Instruction
    Final Sec.  75.1502(c)(3), makes an editorial change, but is 
substantively the same as the proposal, and requires that instruction 
in the deployment, use, and maintenance of refuge alternatives be added 
to the mine emergency evacuation program of instruction. This 
requirement assures that miners are able to effectively deploy and use 
refuge alternatives in case of an emergency. It also assures that 
miners are able to maintain the refuge alternative, by repairing or 
correcting any problems that may develop during storage or use. The 
final rule is consistent with NIOSH findings that refuge alternatives 
have the potential for saving lives if they are part of a comprehensive 
escape and rescue plan and if appropriate training is provided. MSHA 
received no comments on this proposal.
    Final paragraph (c)(4)(vi), like the proposal, requires that the 
program of instruction include using refuge alternatives. Although MSHA 
expects that miners would occupy refuge alternatives only if evacuation 
is not possible, they need to know how to deploy and use the refuge 
alternative in the event of an emergency. MSHA did not receive comments 
on this proposal.
    Final paragraph (c)(8), like the proposal, requires that the 
program of instruction include the locations of refuge alternatives. 
The locations of refuge alternatives may be critical for persons who 
are involved in mine emergencies. MSHA did not receive comments on this 
proposal.
    Final paragraph (c)(10) is changed from the proposal and requires a 
summary of the procedures related to deploying refuge alternatives. 
This requirement applies to all types of refuge alternatives in 
approved ERPs. The final rule contains an editorial change. It changes 
the term ``activating'' to ``deploying.'' In addition, the proposed 
requirement for a summary of procedures related to ``constructing'' 
refuge alternatives is moved to final paragraph (c)(11).
    Final paragraph (c)(11) redesignates and clarifies proposed 
paragraph (c)(10). Final paragraph (c)(11) requires a summary of 
construction methods for 15 psi stoppings constructed prior to an 
event. Final paragraph (c)(11) clarifies MSHA's intent that a summary 
of procedures related to ``constructing'' refuge alternatives applies 
to refuge alternatives consisting of 15 psi stoppings that will be 
built prior to an event that traps miners.
    Final paragraph (c)(12) is redesignated from proposed paragraph 
(c)(11), and requires a summary of the procedures related to refuge 
alternative use.
    The summaries required under final paragraphs (c)(10) through (12) 
provide the information necessary for the miners to review during 
training. The summaries should include all of the step-by-step 
procedures in a manner easily understood by miners. For easy 
availability, mine operators should consider laminated cards or other 
equally durable forms of summaries for use by miners during training. 
Several commenters supported the proposal.

[[Page 80680]]

Section 75.1504 Mine Emergency Evacuation Training and Drills
    Final Sec.  75.1504(b)(3)(ii), like the proposal, requires that in 
quarterly training and drills, miners locate refuge alternatives. In 
addition, final paragraph (b)(4)(ii), like the proposal, requires that 
in quarterly training and drills, miners review locating refuge 
alternatives on the mine and escapeway maps, the firefighting plan, and 
the mine emergency evacuation plan. Both requirements provide necessary 
information to miners in the event of an emergency.
    Final paragraph (b)(6) changes and clarifies the proposal and 
requires that, in quarterly training and drills, miners review the 
procedures for deploying refuge alternatives and components. This 
requirement applies to all types of refuge alternatives in approved 
ERPs. This final rule makes editorial changes. It changes the term 
``activating'' to ``deploying'' and the term ``checklist'' to 
``procedures.''
    Final paragraph (b)(7) redesignates and clarifies proposed 
paragraph (b)(6). Final paragraph (b)(7) requires that, for miners who 
will be constructing the 15 psi stoppings prior to an event, miners 
review the procedures for constructing them. Miners constructing a 15 
psi stopping must receive training for the correct materials and 
procedures to be used prior to construction. Final paragraph (b)(7) 
clarifies MSHA's intent that the quarterly training on refuge 
alternatives consisting of 15 psi stoppings constructed prior to an 
event applies to miners who will be constructing these types of units. 
These types of refuge alternatives will be built prior to an event that 
traps miners. Comments on types of refuge alternatives permitted under 
this final rule are discussed elsewhere in this preamble under Sec.  
75.1507(a)(1).
    Final paragraph (b)(8), redesignated from proposed paragraph 
(b)(7), requires that in quarterly training and drills, miners review 
the procedures related to use of refuge alternatives and components. 
Miners need to be aware of how to use a refuge alternative safely in 
the event of an emergency. This information will be critical for miners 
who need to spend a sustained period in a refuge alternative. 
Procedures should include the step-by-step process necessary for miners 
to use the refuge alternative or component and be easily understood by 
miners. Manufacturers generally provide information on the safe use of 
their products.
    As with any non-routine task, knowledge and skill diminish rapidly. 
This final rule assures that miners are able to deploy and use the 
refuge alternative and components safely in an emergency. MSHA's Office 
of Educational Policy and Development will assist mine operators with 
the development of job task analysis and training materials such as 
videos to improve the quality and effectiveness of programs of 
instruction. In addition, NIOSH is developing a refuge alternative 
training program that is expected to be available the first quarter of 
calendar year 2009.
    Final paragraph (b)(9), redesignated from proposed Sec.  75.1508, 
requires that in quarterly training and drills, miners receive task 
training in proper transportation of refuge alternatives and 
components. To minimize potential damage when they are moved, miners 
need to be aware of the safe procedures necessary to transport refuge 
alternatives and components. This training should include information 
on all connections necessary for transportation, such as tow bars, 
clevises, and hitches.
    This final rule, like the proposal, adopts a training approach that 
consists of both quarterly training and drills under final Sec.  
75.1504(b) and annual expectations training, i.e., simulated hands-on 
training, under final Sec.  75.1504(c). The best refuge technology, 
equipment, and emergency supplies are of little benefit if they are 
misused or not used at all.
    MSHA has identified problems related to skill degradation in 
emergency evacuations of mines. In a series of studies from 1990 
through 1993, the U.S. Bureau of Mines, University of Kentucky, and 
MSHA researchers measured skills degradation. In one study, the 
proficiency rates dropped about 80 percent in follow-up evaluations 
conducted about 90 days after training. MSHA recognizes that with any 
non-routine task, such as deploying and using a refuge alternative or 
component, knowledge and skill diminish rapidly. The final rule 
reflects MSHA's conviction that frequent and effective refuge 
alternative training is necessary to assure miner proficiency.
    Emergencies can result in miner disorientation and panic. Using 
sound judgment in a given emergency can be critical for survival. Based 
on MSHA's knowledge and experience, MSHA believes that quarterly 
training and drills together with annual expectations training is a 
reasonable approach to instill the discipline, confidence, and skills 
necessary to survive a mine emergency. This final rule improves miner 
training and helps assure that underground coal miners know when to use 
a refuge alternative and know how to deploy and use the various 
components to sustain life until rescued. During each quarterly drill, 
miners would be required to locate the refuge alternatives and review 
the deployment and use of the refuge alternative for the area where the 
miners normally work and travel.
    Final Sec.  75.1504(c)(1) and (2), like the proposal, make 
editorial changes to existing paragraph (c)(1). Final paragraph (c) 
requires that over the course of each year, each miner must participate 
in expectations training. Under final paragraph (c)(1), annual 
expectations training must include donning and transferring SCSRs in 
smoke, simulated smoke, or an equivalent environment. Under final 
paragraph (c)(2), annual expectations training must include breathing 
through a realistic SCSR training unit that provides the sensation of 
SCSR airflow resistance and heat.
    Final Sec.  75.1504(c)(3)(i) and (ii) make an editorial change, but 
are substantively the same as the proposal, and require annual 
expectations training on deployment and use of refuge alternatives 
similar to those in use at the mine, including deployment and operation 
of component systems and emphasizing that refuge alternatives are the 
last resort when escape is impossible. This requirement is consistent 
with the NIOSH report.
    In addition, final paragraph (c)(4), redesignated from existing 
Sec.  75.1504(c)(2) and like the proposal, requires that a miner 
participate in expectations training within one quarter of being 
employed at the mine. This could be accomplished during new miner or 
newly employed miner training.
    Under this final rule, the expectations training requires an annual 
realistic experience of deploying and using a refuge alternative in a 
simulated emergency situation. This training could be combined with 
existing expectations training.
    During the rulemaking process and at each of the public hearings, 
MSHA solicited comment on the proposed strategy and the proposed 
elements of training, and asked that commenters be specific including 
alternatives, rationale, safety benefits to miners, technological and 
economic feasibility, and supporting data. Some commenters supported 
the annual expectations training requirements, agreeing with MSHA that 
such training is necessary to assure miner proficiency in the 
deployment and use of refuge alternatives. Other commenters either 
opposed expectations training or stated that the training should be 
limited and

[[Page 80681]]

should not include actual activation or miners' exposure to heat and 
humidity. Other commenters generally supported the provisions on 
training and drills, but some expressed concern that all aspects of 
deploying and maintaining a refuge alternative be covered during hands-
on training and that this hands-on training should occur every 90 days.
    Based on MSHA's knowledge and experience, the Agency believes that 
expectations training will help minimize panic and anxiety associated 
with using refuge alternatives and components. NIOSH supports 
expectations training to reduce the level of panic and anxiety 
associated with the use of refuge alternatives.\4\ Properly deploying a 
refuge alternative or component can be a relatively complex procedure 
that must be done correctly to establish a breathable air environment 
in a smoke-filled mine. Miners would have to deploy the refuge 
alternative, purge the atmosphere, and turn on the breathable air and 
maintain a viable atmosphere. In addition, the operation of most refuge 
alternatives and components requires periodic monitoring of and 
adjustments to the gases to assure a breathable atmosphere. Failure to 
correctly perform these tasks may imperil the lives of persons within 
the refuge alternative. MSHA envisions the use of a reusable training 
model of the refuge alternative in the mine for this purpose when they 
become available.
---------------------------------------------------------------------------

    \4\ NIOSH, Research Report on Refuge Alternatives for 
Underground Coal Mines (2008), p. 14.
---------------------------------------------------------------------------

    In addition, training must include deployment of the refuge 
alternative and components within it, including adjustments to the 
breathable air and harmful gas removal components. The training must 
emphasize that, in the event of an emergency, miners should first try 
to evacuate the mine and that refuge alternatives are the option of 
last resort when escape is impossible. Although this final rule does 
not include a minimum time for this training, the training should 
provide miners with adequate time to perform all of the necessary tasks 
and give them a realistic experience of deploying and using the refuge 
alternatives and components.
Section 75.1505 Escapeway Maps
    Final Sec.  75.1505(a), like the proposal, requires that an 
escapeway map include refuge alternatives and SCSR storage locations. 
In addition, paragraph (a)(3), like the proposal, requires that the 
escapeway map be posted or readily accessible for all miners at the 
refuge alternative. Commenters supported the proposal.
    Inclusion of refuge alternatives and SCSR storage locations on the 
escapeway map and requiring the map to be posted or readily accessible 
at the refuge alternatives can be vital to the survival of miners 
during mine emergencies. Escapeway maps form the basis for decisions 
made during mine evacuation. Having escapeway maps on hand for miners 
will facilitate important decision making.
    Final Sec.  75.1505(b), like the proposal, requires that all 
escapeway maps be kept up-to-date, and that any change in the location 
of refuge alternatives be shown on the map by the end of the shift on 
which the change is made. Commenters supported the proposal.
    Escapeway maps are the primary source of information needed by 
miners as they are evacuating the mine. Locations of refuge 
alternatives are critical to decisions made during evacuation efforts 
and must be kept current on the escapeway map.
Section 75.1506 Refuge Alternatives
    This section requires that mine operators provide refuge 
alternatives to accommodate all persons working underground and specify 
criteria for the use and maintenance of refuge alternatives. MSHA 
believes that refuge alternatives will provide a refuge of last resort 
for miners unable to evacuate the mine during an emergency. By 
providing the essential elements of survival (breathable air, water, 
food, communications, etc.) the likelihood of miners surviving an 
inhospitable post-emergency environment would be increased. MSHA 
realizes that a flexible approach to providing refuge alternatives is 
necessary due to the wide range of mining conditions (mining height, 
pitch, mining method, and mine layout) that exist in underground coal 
mines. To address these widely varying conditions, in the final rule, 
MSHA has taken a performance-based approach to refuge alternatives. For 
example, the refuge alternative has to provide for essential needs of 
occupants, but the final rule does not require specific methods, 
equipment, or devices.
    Final paragraph (a) clarifies MSHA's intent in the proposal that 
refuge alternatives and components must be approved as specified in 
paragraphs (a)(1) and (a)(2). Final paragraph (a)(1) requires that 
prefabricated self-contained refuge alternatives, including the 
structural, breathable air, air monitoring, and harmful gas removal 
components of the unit, must be approved under 30 CFR part 7. Paragraph 
(a)(2) requires that the structural components of refuge alternatives 
consisting of 15 psi stoppings constructed prior to an event must be 
approved by the District Manager, and the breathable air, air 
monitoring, and harmful gas removal components of these units must be 
approved under 30 CFR part 7.
    A few commenters expressed concern regarding the approval 
requirements for the types of refuge alternatives and components. One 
commenter stated that the proposal did not specify which components 
needed approval concerning the different types of refuge alternatives. 
Final Sec.  75.1506(a)(1) and (a)(2) clarifies the types of refuge 
alternatives and components and the approval requirements applicable to 
each unit. These requirements are consistent with MSHA's statement in 
the preamble to the proposal that, as appropriate, MSHA would approve 
the refuge alternatives and components under either part 7 or by the 
District Manager depending on the type of refuge alternative and 
components (73 FR 34160). MSHA will accept, as good faith evidence of 
compliance with final Sec.  75.1506(a)(1) and (a)(2), a copy of a 
valid, bona fide, written purchase order with a confirmed delivery date 
for an approved unit.
    Final paragraph (a)(3) is new and provides that prefabricated 
refuge alternative structures that states have approved and those that 
MSHA has accepted in approved Emergency Response Plans (ERPs) that are 
in service prior to the effective date of the rule (60 days after date 
of publication), are permitted until December 31, 2018, or until 
replaced, whichever comes first.
    In addition, breathable air, air-monitoring, and harmful gas 
removal components of either a prefabricated self-contained unit or a 
unit consisting of 15 psi stoppings constructed prior to an event in a 
secure space and an isolated atmosphere that states have approved and 
those that MSHA has accepted in approved ERPs that are in use prior to 
the effective date of the rule (60 days after date of publication), are 
permitted until December 31, 2013, or until replaced, whichever comes 
first.
    Further, refuge alternatives consisting of materials pre-positioned 
for miners to deploy in a secure space with an isolated atmosphere that 
MSHA has accepted in approved ERPs that are in use prior to the 
effective date of the rule (60 days after date of publication), are 
permitted until December 31, 2010, or until replaced, whichever comes 
first.
    MSHA received several comments regarding the grandfathering of 
refuge alternatives and components that states have approved or that 
MSHA has

[[Page 80682]]

accepted in approved ERPs. Some commenters stated that MSHA should 
unconditionally accept state-approved units. Most of these commenters 
stated that MSHA should accept state-approved refuge alternatives based 
on the manufacturer's suggested service life, or for as long as they 
function effectively, and not limit use to 10 years. A commenter stated 
that manufacturers who have successfully completed an approval by a 
state mine health and safety agency should be allowed to submit those 
materials in support of the proposal and that the results be treated as 
those from an approved third-party testing laboratory.
    Other commenters, however, stated that MSHA should not accept 
previously approved refuge alternatives if they do not meet the 
requirements of the proposal. In addition, several commenters stated 
that some items such as permissible mine phone and flashlight 
batteries, food packets, and water either have no specified shelf life 
or a shelf life longer than 5 years. Other commenters stated that some 
components such as a harmful gas removal component can last longer than 
5 years.
    MSHA considered different periods for allowing approved refuge 
alternatives and components that do not meet the approval requirements 
of the final rule. MSHA is aware that some prefabricated refuge 
alternative structures may last longer than 10 years and that some 
components may last longer than 5 years. However, MSHA has determined 
that it must evaluate the commenters' suggestions on the service life 
of the prefabricated refuge alternative's structure and the other 
components within the context of establishing a reasonable time for 
manufacturers to meet the safety and approval requirements of this 
final rule. Accordingly, the final rule allows prefabricated refuge 
alternative structures that states have approved and those that MSHA 
has accepted in approved ERPs that are in service prior to the 
effective date of the rule (60 days after date of publication), to be 
used until replaced or 10 years after date of publication, whichever 
comes first.
    The final rule also allows breathable air, air monitoring, and 
harmful gas removal components of either a prefabricated self-contained 
unit or a unit consisting of 15 psi stoppings constructed prior to an 
event in a secure space and an isolated atmosphere that states have 
approved and those that MSHA has accepted in approved ERPs that are in 
use prior to the effective date of the rule (60 days after date of 
publication), to be used until replaced or 5 years after date of 
publication, whichever comes first. Provisions such as communications, 
lighting, food, water, sanitation, first aid, parts and materials for 
repair, and tools, etc., must be replaced within 5 years, if shelf life 
limits so require.
    Regarding refuge alternatives consisting of materials pre-
positioned for miners to deploy in a secure space with an isolated 
atmosphere that have been approved in ERPs, MSHA has determined that 
these units need to be phased out due to potential issues associated 
with deploying these units in a secure space with an isolated 
atmosphere after an event. MSHA has determined that 2 years from the 
date of publication of the rule is a reasonable time to replace these 
units.
    Under this final rule, a refuge alternative structure that has been 
approved and is in service or components that have been approved and 
are in use, but require replacement due to damage, must be replaced 
with a unit or components that meet the requirements of the final rule.
    For prefabricated refuge alternative structures that states have 
approved and those that MSHA has accepted in approved Emergency 
Response Plans (ERPs) that are in service, i.e., in the mine, prior to 
the effective date of the rule, March 2, 2009, the District Manager may 
accept, in lieu of the ``in service'' requirement of this 
grandfathering provision, a copy of a valid, bona fide, written 
purchase order entered into by the effective date of the rule, March 2, 
2009, provided that the purchase order contains a confirmed delivery 
date prior to December 31, 2009. MSHA expects first year approvals to 
be completed by December 31, 2009, and refuge alternatives delivered 
after this date must be approved units.
    Final Sec.  75.1506(b), redesignated from proposed paragraph (a), 
requires that, except as permitted under paragraph (a)(3) of this 
section, each operator must provide refuge alternatives with sufficient 
capacity to accommodate all persons working underground.
    Commenters generally supported the proposal. One commenter stated, 
however, that an operator can easily address the capacity of refuge 
alternatives for its employees, but that the operator has no control 
over the number of state and federal inspectors that may be present at 
any time in the mines. Another commenter questioned the need to 
accommodate all persons in refuge alternatives.
    As the Agency has stated many times during this rulemaking process, 
MSHA believes that escape to the surface is more protective than using 
a refuge alternative. However, when escape is impossible, a refuge 
alternative must be available for all persons working underground. 
Under the final rule, refuge alternatives must have sufficient capacity 
to accommodate state and federal inspectors who can reasonably be 
expected to be working underground.
    Final paragraph (b)(1), is redesignated from proposed paragraph 
(a)(1), and like the proposal requires that refuge alternatives provide 
at least 15 square feet of floor space per person. It modifies the 
proposed 60 cubic feet of volume per person to 30 to 60 cubic feet per 
person, which takes entry height into consideration according to the 
following chart. It also provides that the airlock can be included in 
the space and volume if waste is disposed outside the refuge 
alternative.

------------------------------------------------------------------------
                                                            Unrestricted
                                                           volume (cubic
                  Mining height (inches)                     feet) per
                                                              person*
------------------------------------------------------------------------
36 or less...............................................           30
>36-<=42.................................................           37.5
>42-<=48.................................................           45
>48-<=54.................................................           52.5
>54......................................................          60
------------------------------------------------------------------------
* Includes an adjustment of 12 inches for clearances.

    The volume per person includes an adjustment of 12 inches based on 
two factors: (1) 6 inches is necessary to allow for clearance of the 
refuge alternative to be moved; and (2) the usable interior height of 
the refuge alternative is reduced by 6 inches for the roof and floor 
beams resulting in a minimum of 60 cubic feet of available volume per 
person for mining heights above 54 inches with gradually decreasing 
minimum volume requirements for mining heights in between.
    As an example, a 36-inch mine height is reduced by 6 inches for 
clearance and 6 inches for inside beams leaving 24 inches or 2 feet. 
The 24 inches or 2 feet multiplied by 15 square feet of floor space 
equals a minimum of 30 cubic feet of volume per person in the lowest 
mining conditions, i.e., 36 inches or less. The requirements are 
intended to mean that persons would have free space without obstruction 
from components or stored items.
    During the rulemaking process and at each of the public hearings, 
MSHA requested comments on the proposed requirement of at least 15 
square feet of floor space and 60 cubic feet of volume per person, 
particularly in low mining heights, and asked that commenters be 
specific including alternatives, rationale, safety benefits to miners, 
technological and economic feasibility,

[[Page 80683]]

and supporting data. Comments on the proposed space and volume 
requirements, including MSHA's rationale for its decision in the final 
rule are addressed elsewhere in this preamble under final Sec.  
7.505(a)(1) concerning structural components.
    Final paragraph (b)(2) is redesignated from proposed paragraph 
(a)(2), and like the proposal, requires that refuge alternatives for 
working sections accommodate the maximum number of persons that can be 
expected on or near the section at any time.
    During the rulemaking process and at each of the public hearings, 
MSHA solicited comments on the proposed approach to refuge alternative 
capacity, and asked that commenters be specific including alternatives, 
rationale, safety benefits to miners, technological and economic 
feasibility, and supporting data. Some commenters stated that it is 
impossible to determine, in advance, how many inspectors, vendors, or 
other persons may be present, and therefore, the normal number of 
miners exposed should be the standard. One commenter supported the 
proposal stating that using the maximum number of persons to determine 
capacity, such as occurs during ``hot seat'' changeover of shifts, is 
appropriate. The commenter stated:

    The concept of using the shift change to determine the maximum 
number of occupants of a shelter was established by the West 
Virginia rules. It was recognized as not only practical but it 
provided an almost 100% safety margin for those most likely to be 
using a shelter.

    Under the final rule, refuge alternatives for the working sections 
must accommodate the maximum number of persons working near the 
section. This includes all miners that join those working at the 
section during a shift change. For example, if a mine has a practice of 
``hot seat'' change-out of crews at the face, the refuge alternative 
would need to accommodate both crews and any other persons who would 
routinely work near the section, such as managers, surveyors, vendors, 
and state and Federal inspectors.
    Final paragraph (b)(3), is redesignated from and changed from 
proposed paragraph (a)(3). It requires that each refuge alternative in 
an outby area accommodate persons reasonably expected to use it.
    During the rulemaking process and at each of the public hearings, 
MSHA solicited comments on the proposed requirement that refuge 
alternatives for outby areas accommodate persons assigned to work in 
the outby area, and asked that commenters be specific including 
alternatives, rationale, safety benefits to miners, technological and 
economic feasibility, and supporting data. Some commenters supported 
the proposed requirement for refuge alternatives for outby areas, but 
stated that these refuge alternatives should either be sized for 
section miners working near the belt drive outby or be adequate to 
house all personnel that are working in that area and not just those 
who are regularly assigned to that area.
    Other commenters opposed the proposal. Some stated that, based on 
12 past mining disasters, refuge alternatives for outby areas would not 
have been beneficial to the outcome of the tragedy. Others stated that 
the presence of escape shafts or other means of exiting the mine could 
eliminate the requirement for outby refuge alternatives, or that the 
need for refuge alternatives for outby areas should be determined on a 
case-by-case, site-specific basis.
    Under this final rule, if persons work in an outby area that is 
within 30 minutes travel time (walking or crawling) from a portal or 
surface escape facility, an outby refuge alternative would not be 
required. Otherwise, MSHA has determined that refuge alternatives are 
necessary in outby areas of the mine to protect persons who may be 
working in the outby areas. MSHA's accident data support providing 
breathable air in the event someone cannot escape. If a person is in an 
outby area that is further than 30 minutes travel time from a portal or 
surface escape facility, then they cannot escape in accordance with the 
placement of their SCSR caches, and need a refuge alternative. MSHA 
believes that persons working or located outby must be afforded the 
same protection or refuge as those in the face areas.
    Under the final rule, outby refuge alternatives must accommodate 
the number of persons reasonably expected to use it. These persons 
would include supply persons, locomotive operators, examiners, state 
and Federal inspectors, pumpers, maintenance persons, belt persons, and 
other persons who may be working in the outby areas. Because Sec.  
75.1506(c)(2) of the final rule requires that outby refuge alternatives 
be spaced so that persons in outby areas are never more than a 30-
minute travel distance from a refuge alternative or a safe exit, the 
final rule does not require that outby refuge alternatives accommodate 
all section miners working near the belt drive outby. In the event that 
a fire or explosion occurs in an outby area and evacuation is not 
possible, section miners working near the belt drive outby would have 
access to the refuge alternative located at the nearest working face.
    Another commenter said that MSHA should eliminate existing Sec.  
75.1100-2(i), which requires emergency materials, because no one would 
use them when refuge alternatives are available. The emergency 
materials listed in this existing standard are required for 
firefighting and would not affect this final rule.
    Final paragraph (c), redesignated from proposed paragraph (b), 
addresses locations for placement of refuge alternatives. Final 
paragraph (c)(1) requires that refuge alternatives be located within 
1,000 feet from the nearest working face and from locations where 
mechanized mining equipment is being installed or removed, except that 
for underground anthracite coal mines that have no electrical face 
equipment, refuge alternatives must be provided if the nearest working 
face is greater than 2,000 feet from the surface.
    During the rulemaking process and at each of the public hearings, 
MSHA requested comments on the proposed requirement that refuge 
alternatives be located between 1,000 feet and 2,000 feet from the 
working face and from areas where mechanized mining equipment is being 
installed or removed, and asked that commenters be specific including 
alternatives, rationale, safety benefits to miners, technological and 
economic feasibility, and supporting data. MSHA received numerous 
comments on the proposal. Some commenters supported the proposal 
stating that a minimum distance of 1,000 feet decreases the chance of 
damage to the refuge alternative from an explosion and provides more 
space for maneuvering. Some commenters stated that a greater distance 
from the working face would decrease the potential damage from 
transporting the unit by reducing the number of times the refuge 
alternative would need to be moved.
    Many commenters opposed the proposal because it conflicted with 
West Virginia's state law. Some of these commenters suggested that the 
final rule require refuge alternatives within 2,000 feet of the working 
face to eliminate conflict with the West Virginia law. Other commenters 
stated that MSHA should specify a maximum distance from the face, 
rather than a minimum, and that the distance should be based on 
regional conditions, allowing ``within 1,000 feet'' for refuge 
alternatives in West Virginia mines and ``within 2,000 feet'' for 
western mines. Several commenters suggested that refuge alternatives be 
located closer to the working face, within a few hundred feet. Some 
commenters stated that miners would not be able to travel much

[[Page 80684]]

over 1,000 feet through smoke and debris, and that the primary refuge 
chamber must be within 1,000 feet with other refuge alternatives spaced 
along the escapeway.
    In its report, NIOSH recommended that the refuge alternative be 
located at least 1,000 feet from the working face to limit damage from 
explosions at the working face; but, NIOSH also indicated that it would 
be advantageous to place the refuge alternative as close to the face as 
possible to minimize the time and effort required for miners to reach 
it. The NIOSH report noted that lower seam heights, difficult bottom 
conditions, and the presence of smoke, among other factors, would 
affect travel times.
    The highest concentration of miners underground will be at the 
working face; therefore, a refuge alternative capable of accommodating 
these miners must be positioned close to the working section. In the 
final rule, MSHA changed the location requirement based on testimony 
and comments regarding the inability of miners on the working section 
to travel over 1,000 feet through smoke and debris to reach the refuge 
alternative, especially if injured or exhausted. MSHA also took into 
consideration that the final rule requires the structural component of 
refuge alternatives to be designed to withstand an explosion.
    MSHA is aware that underground anthracite coal mines have unique 
mining conditions. These conditions include the lack of available 
locations to place a refuge alternative due to crosscuts on extreme 
angles. The unique conditions in underground anthracite coal mines make 
compliance with the ``within 1,000 feet'' requirement of the final rule 
regarding location problematic. Therefore, the final rule requires 
that, for underground anthracite coal mines with no electrical face 
equipment, refuge alternatives must be provided if the nearest working 
face is greater than 2,000 feet from the surface.
    MSHA also requested comments on an alternative addressed in the 
preamble to the proposal that would allow refuge alternatives with 
boreholes to be located up to 4,000 feet from the working face. Some 
commenters stated that this proposed alternative may complement, but 
should never be allowed in place of, a refuge alternative near the 
working face. Other commenters stated that the prescriptive distances 
unnecessarily limit the use of refuge alternatives with a borehole.
    After evaluating all comments and data, MSHA determined that it is 
more protective to have a refuge alternative close to the working face 
so that persons can reach it more quickly. However, MSHA recognizes 
that refuge alternatives with pre-connected boreholes are superior to 
other types of refuge alternatives, even though it may not be practical 
or feasible to locate them close to the working face that advances 
daily, and may not be feasible at all for certain mining conditions. 
MSHA appreciates that some aspects of refuge alternatives involve 
developing and innovative technology. Therefore, the Agency encourages 
mine operators to connect each refuge alternative located along the 
escapeway to a borehole, where feasible and appropriate.
    Final paragraph (c)(2), redesignated from proposed paragraph 
(b)(2), requires that outby refuge alternatives be spaced within 1-hour 
travel distances in outby areas where persons work such that persons in 
outby areas are never more than a 30-minute travel distance from a 
refuge alternative or safe exit. In addition, it provides that the 
operator may request and the District Manager may approve a different 
location in the ERP.
    The operator's request must be based on an assessment of the risk 
to persons in outby areas, considering the following factors: proximity 
to seals; proximity to potential fire or ignition sources; conditions 
in the outby areas; location of stored SCSRs; and proximity to the most 
direct, safe, and practical route to an intake escapeway. MSHA 
recognizes that the different locations approved in the ERP may require 
persons in outby areas to travel farther than 30 minutes to reach a 
refuge alternative. The Agency believes that the availability of 
additional SCSRs, as required in MSHA's Emergency Mine Evacuation 
standard, further assures that persons in outby areas will be able to 
reach a refuge alternative if necessary.
    During the rulemaking process and at each of the public hearings, 
MSHA solicited comments on locating refuge alternatives in outby areas, 
including the minimum and maximum distances, and asked that commenters 
be specific including alternatives, rationale, safety benefits to 
miners, technological and economic feasibility, and supporting data. 
Some commenters stated that the distance between refuge alternatives in 
outby areas should not be specified; but generally supported the 
proposal, including allowing the operator the option of requesting a 
different location in the ERP. These commenters stated that the 
distance between refuge alternatives in outby areas is best addressed 
in the ERP approval process. Other commenters opposed allowing 
operators the option of requesting different locations for refuge 
alternatives to be approved in the ERP. Another commenter stated that 
refuge alternatives should be 30 minutes walking distance from each 
other and in the primary escapeway that miners would use in the event 
of an evacuation. One commenter stated that the distance between refuge 
alternatives should be much shorter than 30 minutes, especially when 
miners are traveling under emergency conditions.
    MSHA believes that it is necessary to specify distances for 
locating outby refuge alternatives for purposes of consistency and 
training. Specifying distances will improve miners' awareness of the 
location of these refuge alternatives. Miners are already aware of SCSR 
storage locations under the Emergency Mine Evacuation final rule.
    In 2006, in developing the Emergency Mine Evacuation final rule (71 
FR 71430), MSHA examined how far miners could travel during 30 minutes. 
Existing Sec.  75.1714-4(c)(2) provides two methods for determining the 
30-minute spacing of SCSR storage locations in escapeways. The first 
method is based on a sample of typical miners walking a selected length 
of each escapeway. The second method is based on average entry height, 
specified in the following table, except for escapeways with uphill 
grades over 5 percent.

------------------------------------------------------------------------
                                              Maximum distance between
           Average entry height                SCSR storage locations
------------------------------------------------------------------------
<40 in. (Crawl)...........................  2,200 ft.
>40-<50 in. (Duck Walk)...................  3,300 ft.
>50-<65 in. (Walk Head Bent)..............  4,400 ft.
>65 in. (Walk Erect)......................  5,700 ft.
------------------------------------------------------------------------

    The table could be used to determine the locations of the outby 
refuge alternatives based on 30-minute travel time.
    According to the table above, SCSR storage locations are at 60-
minute intervals. Based on the spacing of SCSR storage locations, outby 
refuge alternatives may be situated at every other SCSR storage 
location along the escapeway. The final rule does not change the 
proposed 30-minute travel distance because the final rule requires 
refuge alternatives to be within 1,000 feet of the working face. 
Persons needing to access outby refuge alternatives are assisted by 
escapeway lifelines and SCSR caches.
    Final paragraph (d) is redesignated from proposed paragraph (c) 
and, like the proposal, requires that roof and rib support for refuge 
alternative locations

[[Page 80685]]

be specified in the mine's roof control plan. MSHA addresses this 
requirement elsewhere in this preamble under final Sec.  75.221 
concerning roof control plan information. MSHA included this 
requirement in this standard to assure that mine operators adequately 
prepare locations for refuge alternatives.
    Final paragraph (e) is redesignated from proposed paragraph (d) 
and, like the proposal, requires that the operator protect the refuge 
alternative and contents from damage during transportation, 
installation, and storage. Some commenters supported the proposal; one 
commenter opposed it. The final requirement assures that care will be 
taken to avoid damage to the refuge alternative and contents at all 
times. When transporting a refuge alternative from one location to 
another, attention needs to be paid to procedures such as the use of 
proper connections and devices, such as tow bars, clevises, and 
hitches, for transportation.
    Final paragraph (f) is redesignated from proposed paragraph (e) 
and, like the proposal, requires that a refuge alternative be removed 
from service if examination reveals damage or tampering that could 
interfere with the functioning of the refuge alternative or any 
component. Refuge alternatives may be damaged by persons, mining 
equipment, or the mine environment. The final rule requires that damage 
must be evaluated and, as noted above, if damage or tampering could 
interfere with the functioning of the refuge alternative or its 
components, it must be removed from service. For the safety of the 
persons who would need to use the refuge alternative, removal should 
occur immediately. For example, if a preshift examination reveals a 
leak in a compressed gas storage system, the refuge alternative must be 
removed from service since it would be unable to provide breathable air 
in an emergency.
    MSHA did not receive comments on this proposal and the final rule 
is the same as proposed.
    Final paragraph (f)(1) is redesignated from proposed paragraph 
(e)(1) and, like the proposal, requires the operator to withdraw all 
persons from the area serviced by the refuge alternative if the refuge 
alternative is removed from service, except those persons referred to 
in Sec.  104(c) of the Mine Act.
    Some commenters supported the proposed requirement. Other 
commenters opposed the proposal stating that MSHA should allow miners 
to continue working in the area if the operator provides an alternative 
that provides equivalent protection.
    Because an inoperable or damaged refuge alternative does not 
provide the protection intended, the operator must withdraw persons 
from any area when the refuge alternative serving that area is removed 
from service. This does not include persons performing repairs, who 
should be provided with additional SCSRs to assure that they can reach 
another refuge alternative. If, however, an approved refuge alternative 
is provided and maintained as a back-up, persons do not have to be 
withdrawn because a functional replacement refuge alternative is 
readily available.
    Final paragraph (f)(2) is redesignated from proposed paragraph 
(e)(2) and, like the proposal, requires that refuge alternative 
components removed from service be replaced or repaired in accordance 
with manufacturer's specifications. This requirement assures that the 
refuge alternative is maintained in its approved condition to provide 
the protection afforded by approved refuge alternatives at all times. 
MSHA did not receive comments on this requirement and the final rule is 
the same as proposed.
    Final paragraph (g) is redesignated from proposed paragraph (f). It 
includes an editorial change, but is substantively the same as the 
proposal, and requires that, at all times, the site and area around the 
refuge alternative be kept clear of machinery, materials, and 
obstructions that could interfere with the deployment or use of the 
refuge alternative.
    One commenter stated that it may be impractical to keep materials 
from blocking access to or use of the refuge alternative. To protect 
persons during an emergency, the site and area around the refuge 
alternative must be easily accessible. Areas around refuge alternatives 
must be maintained without obstructions that hinder access to the 
refuge alternative. This requirement is necessary to assure the 
availability of the refuge alternative and the survivability of persons 
who need to use it.
    Final paragraph (h) is redesignated from proposed paragraph (g) 
and, like the proposal, requires that each refuge alternative be 
conspicuously identified with a sign or marker. Under final paragraph 
(h)(1), like the proposal, the sign or marker must be made of 
reflective material with the word ``REFUGE'' and must be posted 
conspicuously at each refuge alternative. Under final paragraph (h)(2), 
like the proposal, a directional sign must be made of reflective 
material and must be posted leading to each refuge alternative 
location.
    This requirement provides a quick way for persons not in escapeways 
and therefore not able to use the lifeline system to locate the refuge 
alternative in an emergency. Reflective material greatly increases the 
visibility of the sign. This requirement is the same as existing Sec.  
75.1714-4(f), which requires reflective signs on SCSR storage 
locations. As noted above, miners may not be located in escapeways when 
an emergency occurs. For them, a system of directional signs may be 
critical during an emergency. Signs should be posted at intersections 
of the escapeway and the crosscut leading to the refuge alternative. 
Persons traveling in adjacent entries would have signs directing them 
to the refuge alternative.
    Some commenters opposed the proposed requirement that the sign or 
marker use the word ``REFUGE.'' They stated that operators should have 
flexibility to use different terminology that is more appropriate, such 
as, ``rescue chamber,'' or ``escape shelters.'' A standardized sign or 
marker with the word ``REFUGE'' will reduce the possibility of 
confusion in an emergency, and will provide an additional safety 
benefit to persons who work in different mines because they would not 
have to become familiar with new terminology. Use of the word 
``REFUGE,'' however, does not preclude the use of additional terms on 
the sign or marker to identify the refuge alternative. Therefore, the 
final rule makes no change to the proposal.
    Final paragraph (i) has been added to make part 75 consistent with 
Sec.  7.506(b)(2) of the approval requirements. It requires that, 
during use of the refuge alternative, the atmosphere within the refuge 
alternative must be monitored. It further requires that changes or 
adjustments must be made to reduce the concentration of methane to less 
than 1 percent; to reduce the concentration of carbon dioxide to 1 
percent or less, and excursions not to exceed 2.5 percent; and to 
reduce the concentration of carbon monoxide to 25 ppm or less. Oxygen 
must be maintained at 18.5 to 23 percent.
    The occupants of the refuge alternative must follow the monitoring 
procedures included with the air-monitoring component. This requirement 
was proposed in the approval requirements and is included in the safety 
standards to clarify MSHA's intent that operators take appropriate 
actions to assure that persons will operate the refuge alternative 
safely and properly.
    Final paragraph (j) has been added to make part 75 consistent with 
Sec.  7.504(c)(6) of the approval requirements. It requires that refuge 
alternatives contain a fire extinguisher

[[Page 80686]]

that meets the requirements for portable fire extinguishers used in 
underground coal mines under this part; that the fire extinguisher is 
appropriate for fires involving the chemicals used for harmful gas 
removal; and that it uses a low-toxicity extinguishing agent that does 
not produce a hazardous by-product when activated. This requirement was 
proposed in the approval requirements and is included in the safety 
standards to clarify MSHA's intent that operators provide appropriate 
firefighting protection for refuge alternatives.
Section 75.1507 Emergency Response Plan; Refuge Alternatives
    Final Sec.  75.1507(a), like the proposal, contains the information 
on refuge alternatives that the operator must include in the ERP. One 
commenter stated that MSHA should not require that the ERP document 
include all the specifications that the manufacturer has had certified 
by MSHA.
    The requirement in this final rule assists the District Manager in 
determining whether the refuge alternative or component meets the 
approval requirements. For refuge alternatives approved under 30 CFR 
part 7, the ERP would only need to include the information provided by 
the approval holder.
    Final Sec.  75.1507(a)(1), like the proposal, requires that the 
mine operator specify the types of refuge alternatives and components 
used in the mine. The type of refuge alternative is not dependent upon 
mining height. The final rule provides flexibility in the type of 
refuge alternatives that will meet the requirements.
    One type of refuge alternative allowed under the final rule is a 
prefabricated self-contained unit. The unit is portable and may be used 
near the working face or in outby areas. Prefabricated units may 
consist of structures that are sealed to protect against contamination. 
Refuge alternatives contain structural, breathable air, air monitoring, 
and harmful gas removal components. The structural component of 
prefabricated units may consist of steel enclosures that contain tents 
that are inflated upon deployment. Prefabricated self-contained units 
are evaluated under MSHA's approval requirements.
    Some commenters expressed concern regarding the refuge alternative 
in the proposal consisting of a secure space constructed in place, with 
an isolated atmosphere. These commenters stated that the term 
``constructed'' implies the use of a post-event barricade, which has 
not been demonstrated as effective. The final rule clarifies the 
Agency's intent; this type of refuge alternative is a unit consisting 
of 15 psi stoppings constructed prior to an event in a secure space and 
an isolated atmosphere. It is important to note that under the final 
rule, MSHA's intent is that these refuge alternatives would be built 
and in place prior to an emergency. The breathable air, air monitoring, 
and harmful gas removal components of this unit are placed in a cross-
cut or dead-end entry and stoppings create a secure area with an 
isolated atmosphere. The approved components should be ready to be 
deployed when miners reach the secure area. The stoppings and doors are 
built prior to an emergency and must be able to resist a 15 psi 
overpressure.
    The doors should have a tamper-evident seal or other means to 
indicate unauthorized entry. The structural components of these units 
must be approved by the District Manager, and the breathable air, air 
monitoring, and harmful gas removal components of these units must be 
approved under part 7.
    Refuge alternatives consisting of 15 psi stoppings constructed 
prior to an event would typically be used in outby areas. If used near 
the working section, the stoppings could be removed to allow the 
components to be moved periodically to the next location and new 
stoppings would be needed.
    Some commenters supported, while others opposed the proposed refuge 
alternative consisting of ``materials pre-positioned for miners to 
construct a secure space with an isolated atmosphere.'' Commenters who 
supported all three types of proposed refuge alternatives stated that 
there are benefits and drawbacks to each type, but that all three 
should be allowed because there is no ``one-size-fits-all'' solution. 
They noted that the size of a unit consisting of ``materials pre-
positioned'' may be preferable under some circumstances because the 
size of the unit would not be constrained by the size of the inflatable 
tent or metal structure. Commenters opposed to the refuge alternative 
consisting of ``materials pre-positioned'' stated that constructing a 
unit during or after an emergency is not a viable solution for persons 
who cannot evacuate because crosscuts cannot be successfully purged 
after a fire or explosion. Some of these commenters stated that 
construction is too difficult because of dust, chaos, injury, inability 
to see, disorientation, and fatigue.
    Because of potential issues associated with miners constructing a 
secure space with an isolated atmosphere after an emergency, the final 
rule does not include this type of refuge alternative. MSHA has 
determined, based on further analysis, and the testimony and comments, 
that using pre-positioned materials to construct a secure space after a 
fire or explosion could be problematic.
    Final paragraph (a)(2), like the proposal, requires that the ERP 
include procedures or methods for maintaining approved refuge 
alternatives and components. One commenter stated that repair 
capability is limited during emergencies.
    This final rule assures that the refuge alternative will be 
maintained during storage so that it is available for deployment and 
use in an emergency. Maintenance procedures or methods should include 
frequent maintenance checks and replacement schedules for components. 
The final rule is the same as proposed.
    Final paragraph (a)(3), like the proposal, requires that the rated 
capacity of each refuge alternative, the number of persons expected to 
use each refuge alternative, and the duration of breathable air 
provided per person by the approved breathable air component of each 
refuge alternative be included in the ERP.
    MSHA received comments on the proposed rated capacity and 96-hour 
duration for breathable air. Those comments are addressed elsewhere in 
this preamble under final Sec. Sec.  7.505(a)(1) and 7.506(b)(1). The 
final rule is the same as proposed.
    Final paragraph (a)(4) is changed from the proposal and requires 
that the ERP include the methods for providing breathable air with 
sufficient detail of the component's capability to provide breathable 
air over the duration stated in the approval. The proposed requirement 
to include the methods for removing carbon dioxide is moved to final 
Sec.  75.1507(a)(8) addressing harmful gas removal.
    MSHA received comments on the proposed methods for providing 
breathable air and removing carbon dioxide. They are addressed 
elsewhere in this preamble under final Sec. Sec.  7.506 and 7.508.
    Final paragraph (a)(5), like the proposal, requires that the ERP 
include methods to provide ready backup oxygen controls and regulators. 
The term ``ready'' means pre-connected valves and regulators. Backup 
oxygen controls and regulators are necessary to assure that miners will 
always have breathable air available in case of component failures.
    MSHA received comments on back-up oxygen controls and regulators. 
Those comments are addressed elsewhere in

[[Page 80687]]

this preamble under final Sec.  7.506. The final rule is the same as 
proposed.
    Final paragraph (a)(6), like the proposal, requires that the ERP 
include the methods for providing an airlock and the methods for 
providing breathable air in the airlock, except where adequate positive 
pressure is maintained. The ERP must provide specific information 
regarding how the airlock will provide and maintain breathable air. 
When miners enter the refuge alternative through the airlock, 
sufficient purge air is necessary to clear the airlock of contaminants 
to minimize contamination inside the refuge alternative. Purging or 
other effective methods would be necessary, within 20 minutes of miners 
deploying the refuge alternative, for the airlock to dilute the carbon 
monoxide concentration to 25 ppm or less and the methane concentration 
to 1.0 percent or less.
    The positive pressure relief should be set at 0.18 psi for refuge 
alternatives consisting of 15 psi stoppings constructed prior to an 
event.
    MSHA received comments on the proposed methods for providing an 
airlock and the methods for providing breathable air in the airlock. 
Those comments are addressed elsewhere in this preamble under final 
Sec.  7.508(a)(1). The final rule is the same as proposed with one 
editorial change.
    Final paragraph (a)(7), like the proposal, requires that the ERP 
include methods for providing sanitation facilities. Under the approval 
requirements, prefabricated units are required to be designed to 
provide a means to contain human waste effectively and minimize 
objectionable odors. Information on sanitation facilities in 
prefabricated units must be contained in the manufacturer's operations 
manual. For units consisting of 15 psi stoppings constructed prior to 
an event, the operator should provide comparable information in the 
ERP. The final rule assists MSHA in verifying that the refuge 
alternative has an adequate means for containing or disposing of waste.
    MSHA received comments on the proposed requirement dealing with a 
means to contain human waste effectively and minimize objectionable 
odors. They are addressed elsewhere in this preamble under final Sec.  
7.504. The final rule is the same as proposed.
    Final paragraph (a)(8), like the proposal, requires that the ERP 
include the methods for harmful gas removal if necessary. Information 
on harmful gas removal is essential for MSHA to determine the ability 
of the refuge alternative to sustain occupants for 96 hours. Sufficient 
purge air is necessary to clear the refuge alternative of smoke, carbon 
monoxide, carbon dioxide, and other toxic and irritant gases, fumes, 
mists, and dusts that may enter the refuge alternative through the 
airlock.
    MSHA received comments on the proposal dealing with harmful gas 
removal. They are addressed elsewhere in this preamble under final 
Sec.  7.508. The final rule is the same as proposed.
    Final paragraph (a)(9), like the proposal, requires that the ERP 
include methods for monitoring gas concentrations, including charging 
and calibration of equipment. This information is essential for MSHA to 
determine that persons inside the refuge alternative will be aware of 
the concentrations of carbon dioxide, carbon monoxide, methane, oxygen 
and, if necessary, other harmful gases specific to the mine, inside and 
outside the structure, including the airlock. It also assists MSHA in 
evaluating whether the air-monitoring component meets the requirements 
for sustaining persons for 96 hours.
    MSHA received comments on the proposal addressing monitoring gas 
concentrations, and charging and calibrating equipment. They are 
addressed elsewhere in this preamble under final Sec.  7.507 addressing 
air monitoring components. The final rule is the same as proposed.
    Paragraph (a)(10) is substantively the same as the proposal and 
requires that the ERP include the method for providing lighting 
sufficient for persons to perform tasks. This requirement assists MSHA 
in evaluating whether persons have adequate light to read instructions, 
warnings, and gauges; operate gas monitoring detectors; and perform 
other activities related to the operation of the refuge alternatives. 
MSHA received comments on the proposal. They are addressed elsewhere in 
this preamble under final Sec.  7.504. The final rule includes a non-
substantive change, adding the term ``for persons'' to the requirement.
    Final paragraphs (a)(11)(i) and (ii), like the proposal, require 
that the ERP include suitable locations for the refuge alternatives and 
that the ERP specify that refuge alternatives are not within direct 
line of sight of the working face and, where feasible, not in areas 
directly across from, nor closer than 500 feet radially from, belt 
drives, take-ups, transfer points, air compressors, explosive 
magazines, seals, entrances to abandoned areas, and fuel, oil, or other 
flammable or combustible material storage. In the preamble to the 
proposal, MSHA stated that it would consider exceptions if it was not 
feasible to locate the refuge alternative according to the proposal.
    In response to comments, final paragraph (a)(11)(ii) contains a new 
provision that the operator may request and the District Manager may 
approve an alternative location in the ERP if mining involves two-entry 
systems or yield pillars in a longwall that would prohibit locating the 
refuge alternative out of direct line of sight of the working face.
    Some commenters supported the proposal stating that it minimizes 
damage from the direct forces from an explosion. Many commenters, 
however, opposed the proposed limitations on positioning of refuge 
alternatives. Some commenters stated that the mining plan and 
conditions at each mine need to be considered and that positioning 
should be assessed on a mine-by-mine basis by the District Manager in 
the ERP. Some commenters stated that the proposal on positioning of 
refuge alternatives is unnecessary because the units are required to 
withstand an overpressure of 15 psi under the proposal. Other 
commenters stated that the proposal creates the potential for 
unnecessary risk of: Damaging a prefabricated unit, because of the 
difficulty in maneuvering refuge alternatives in and out of crosscuts; 
and injuring miners when the unit is moved, because moves in and out of 
crosscuts require a lot more handling.
    The final rule assures the availability and survivability of the 
refuge alternative and its occupants. Refuge alternatives must be 
positioned so that they are easily accessible. In addition, positioning 
refuge alternatives so that they are located away from potential 
hazards, such as an explosion or fire at the working face, minimizes 
the heat or explosive forces that could affect the safety of persons in 
the refuge alternative.
    The final rule is consistent with the NIOSH report, which 
recommended that refuge alternatives be positioned in crosscuts, rather 
than entries, or located in dead-end cuts to decrease the possibility 
of damage from overpressure or flying debris from an explosion. NIOSH 
also recommended that refuge alternatives be located away from 
potential sources of fires, such as belt drives.
    Final paragraph (a)(12) is new and is included in the final rule to 
complement the Agency's proposal on apparent temperature and to clarify 
the Agency's intent that apparent temperature be achieved in all mining 
conditions. It requires that the ERP include the maximum mine air 
temperature at each of the locations

[[Page 80688]]

where refuge alternatives are to be placed.
    During the rulemaking process and at each of the public hearings, 
MSHA asked for comment on how best to achieve apparent temperature, and 
asked that commenters be specific including alternatives, rationale, 
safety benefits to miners, technological and economic feasibility, and 
supporting data. This provision is added in response to commenters' 
concerns regarding the effect that the mine temperature would have on 
the internal apparent temperature in the refuge alternative. These 
commenters stated that the temperature outside of the unit must be 
taken into consideration because of heat transfer. The final rule also 
includes a corresponding provision under final Sec.  7.503(b)(5) 
requiring that the application for approval specify the maximum mine 
air temperature under which the refuge alternative is designed to 
operate when the unit is fully occupied.
    Final paragraph (b) contains requirements for ERPs for refuge 
alternatives consisting of 15 psi stoppings constructed prior to an 
event in a secure space and an isolated atmosphere. As stated 
previously, the final rule clarifies the Agency's intent regarding this 
type of refuge alternative. Final paragraph (b)(1), like the proposal, 
requires that the ERP specify that the breathable air components are 
approved by MSHA. MSHA received comments on the proposed breathable air 
provisions and those comments are addressed elsewhere in this preamble 
under final Sec.  7.506. The final rule is the same as proposed.
    Final paragraph (b)(2), like the proposal, requires that the ERP 
specify that the refuge alternative can withstand exposure to a flash 
fire of 300 [deg]F for 3 seconds and a pressure wave of 15 psi 
overpressure for 0.2 seconds. Because the stoppings must protect 
persons and the components of the refuge alternative, they must be able 
to withstand both flash fires and explosive overpressures. MSHA 
received comments on both the proposal's flash fire and overpressure 
requirements. They are addressed elsewhere in this preamble under final 
Sec.  7.505(a)(4) and (a)(5). The final rule is the same as proposed.
    Proposed Sec.  75.1507(c) is not included in the final rule. The 
proposal addressed requirements for ERPs for refuge alternatives that 
consist of materials pre-positioned for miners to deploy in a secure 
space with an isolated atmosphere. The Agency's rationale for not 
including this refuge alternative in the final rule is discussed in the 
preamble under Sec.  75.1506(a).
    Final paragraph (c), redesignated from proposed paragraph (d), 
requires that, if the refuge alternative sustains persons for only 48 
hours, the ERP must detail advanced arrangements that have been made to 
assure that persons who cannot be rescued within 48 hours will receive 
additional supplies to sustain them until rescue. MSHA expects that a 
borehole would be drilled near the location of the refuge alternative. 
A method for supplying breathable air from the surface through the 
borehole would need to have the capability to provide a sufficient 
quantity of air to dilute any harmful gases in and around the refuge 
alternative.
    Final paragraph (c) also requires that the ERP include the 
following advance arrangements. Final paragraph (c)(1) requires pre-
surveyed areas for refuge alternatives with closure errors of less than 
20,000:1. This requirement assures that the survey that is done on the 
surface and the one performed underground are closed. The surface 
survey could be done with global positioning satellite equipment. When 
a survey connects back to itself, it is called a loop. The loop in this 
provision would begin with the surface survey of the location above the 
location of the refuge alternative and along a route to the underground 
location of the refuge alternative and back to the beginning survey 
location on the surface. If a loop is surveyed perfectly, the survey 
should come back to the exact point at which it started. If the loop 
does not come back to the exact starting point, it is called a closure 
error. Closure errors indicate that some or all of the survey 
measurements within a loop have errors. This provision assures accuracy 
in getting the borehole to the correct location underground.
    Final paragraph (c)(2) requires an analysis of the surface terrain, 
the strata, the capabilities of the drill rig, and all other factors 
that could affect drilling. This analysis must demonstrate that a hole 
can be drilled within 48 hours of an emergency and that the hole will 
be able to provide required supplies and materials to trapped persons. 
This requirement assures that the operator will discover and repair any 
conditions that could interfere with or delay drilling. The drill rig 
capabilities should be examined to assure that the appropriate drill 
model is selected. This allows planning so that correct equipment and 
supplies are available when needed.
    Final paragraph (c)(3) requires that the operator secures 
permissions to cross properties, build roads, and construct drill 
sites. It assures that delays are minimized or eliminated and that 
drilling can proceed immediately upon arrival of the drill rig.
    Final paragraph (c)(4) requires an arrangement with a drilling 
contractor or other supplier of drilling services to provide a suitable 
drilling rig, personnel, and support so that a hole can be completed to 
the refuge alternative within 48 hours. This arrangement should include 
details concerning mobilization, availability, ancillary services, 
backup plans, drill-hole specifications, completion schedules, and 
spare parts.
    Final paragraph (c)(5) requires the capability to promptly 
transport a drill rig to a pre-surveyed location so that a drilled hole 
would be completed and located near a refuge alternative structure 
within 48 hours of an emergency at a mine. If the pre-surveyed location 
is not easily accessible, the operator should have advance arrangements 
to have the appropriate equipment to transport the drill rig to the 
location. The operator should consider and prepare for potential 
delays.
    Final paragraph (c)(6) requires specifications of the pipes, air 
lines, approved fans, or approved compressors that will be used. This 
information decreases the possibility that an inappropriate or 
inadequate source of breathable air would be connected to the borehole.
    Final paragraph (c)(7) requires a method for assuring that 
breathable air is provided within 48 hours. This provision assures that 
the means to provide breathable air, i.e., compressors, fans, and 
blowers, is designed for the planned conditions. The design should 
include consideration of pipe resistance, volumes and velocities 
needed, connections required on the surface, power needs, and required 
supplies. The system should be on hand and ready to provide breathable 
air after the borehole is completed.
    Final paragraph (c)(8) requires a method for assuring the immediate 
availability of a backup source for supplying breathable air and a 
backup power source for surface installations. This information assists 
MSHA in evaluating the continued availability of breathable air.
    Some commenters opposed the proposal. These commenters stated that 
storing only 48 hours of breathable air is not sufficiently protective 
because it is unlikely that enough additional supplies could be 
provided to sustain persons. These commenters also stated that the 
alternative leaves too much to chance given the availability of refuge

[[Page 80689]]

alternatives that are able to provide 96 hours of breathable air.
    Other commenters supported the proposal. These commenters stated 
that operators have made arrangements under MSHA's Program Information 
Bulletin No. P07-03 and that these provisions need to be maintained in 
the final rule. One commenter requested that the ERP include additional 
provisions, such as contracts between the operator and drilling 
contractor and access to earth-moving equipment, etc., to demonstrate 
advance preparation and help assure that trapped persons receive 
additional supplies as early as possible.
    Based on MSHA's experience and information provided from mine 
operators, MSHA believes that most operators will provide refuge 
alternatives with 96 hours of breathable air. However, based on Agency 
knowledge and experience, MSHA also believes that there can be 
advantages to providing breathable air through a borehole. Once a 
borehole is established in proximity to the refuge alternative, the 
supply of breathable air at the location of the refuge alternative 
would be unlimited. The final rule requires that the ERP contain enough 
information to allow the District Manager to evaluate the adequacy of 
the operator's advanced arrangements to provide breathable air to 
sustain trapped persons for 96 hours.
    During the rulemaking process and at each public hearing, MSHA 
requested comments on whether the rule should contain a provision that 
the advanced arrangements specified in the ERP include a method for 
assuring that there will be a suitable means to connect the drilled 
hole to the refuge alternative and that the connection be made within 
10 minutes, and asked that commenters be specific including 
alternatives, rationale, safety benefits to miners, technological and 
economic feasibility, and supporting data. Commenters opposed the 
proposed requirement. They expressed concern regarding the safety of 
persons leaving the refuge alternative to connect it to a borehole. 
Accordingly, the final rule does not include the proposed requirement. 
As stated above, a method for supplying breathable air from the surface 
through the borehole would need to have the capability to provide a 
sufficient quantity of air to dilute any harmful gases in and around 
the refuge alternative.
    Final paragraph (d) is redesignated from proposed paragraph (e). 
Like the proposal, it requires the ERP to specify that the refuge 
alternative is stocked with essential supplies or provisions.
    Final paragraph (d)(1) requires that the ERP specify a minimum of 
2,000 calories of food and 2.25 quarts of potable water per person per 
day to sustain the maximum number of persons reasonably expected to use 
the refuge alternative at one time. Commenters generally supported the 
proposal. Commenters suggested including a range of caloric intake, 
electrolyte substitutes as a fluid requirement, and individual 
disposable packages. One commenter said that some survival companies 
are providing sterile water and M.R.E. food packets with a shelf life 
of as much as 12 years and that MSHA should allow them to be used for 
their entire service life. Another commenter noted that, in the NIOSH 
report, providing for the most basic human needs, e.g., water, food, 
and waste disposal, is crucial for survival.
    The final rule is consistent with NIOSH's recommendations and is 
intended to meet the basic nutritional needs of trapped miners. Food 
and water should be replaced upon expiration. Additional calories and 
fluids, such as electrolyte substitutes, may be provided. The final 
rule is the same as proposed.
    Final paragraph (d)(2), redesignated from proposed paragraph 
(e)(2), amends and clarifies the proposed provision. Final paragraph 
(d)(2) requires the ERP to specify that the refuge alternative be 
stocked with a manual that contains sufficient detail for each refuge 
alternative or component addressing in-mine transportation, operation, 
and maintenance of the unit. The final rule clarifies MSHA's intent 
that the refuge alternative contain a manual that provides information 
in a simpler, more straightforward manner for ease of understanding by 
the persons using it. The manual should contain step-by-step or 
pictorial instructions or checklists for ease of understanding and 
necessary information in sufficient detail for the safe and effective 
operation and maintenance of the refuge alternative and components. 
MSHA did not receive comments on this proposal.
    Final paragraph (d)(3), like the proposal, requires the ERP to 
specify that the refuge alternative is stocked with sufficient 
quantities of materials and tools to repair components. Materials and 
tools should include metal repair materials, fiber material, adhesives, 
sealants, tapes, and general hardware (i.e., screws, bolts, rivets, 
wire, zippers, and clips). MSHA did not receive comments on the 
proposal. The final rule is the same as proposed.
    Final paragraph (d)(4), like the proposal, requires the ERP to 
specify that the refuge alternative is stocked with first aid supplies. 
This requirement assures that adequate first aid supplies are provided 
for persons injured in an emergency situation. Although MSHA received 
comments on the proposal, the comments are discussed in this preamble 
under final Sec.  7.504(c)(4), which includes the general requirements 
for a refuge alternative's approval. The final rule is the same as 
proposed.
Section 75.1508 Training and Records for Examination, Maintenance, and 
Repair of Refuge Alternatives and Components
    Final paragraph (a), like the proposal, requires that persons 
examining, maintaining, or repairing refuge alternatives and components 
be instructed in how to perform this work. This final rule addresses 
training for examination, maintenance, and repair of refuge 
alternatives and components in addition to quarterly training and 
drills under final Sec.  75.1504(b) and annual expectations training 
under final Sec.  75.1504(c). Final paragraph (a) does not include 
training on transportation of refuge alternatives or components as 
proposed. Task training for persons transporting refuge alternatives or 
components is required quarterly in mine emergency evacuation training 
and drills under final Sec.  75.1504(b)(10).
    Under final paragraph (a)(1), the operator must assure that all 
persons assigned to examine, maintain, and repair refuge alternatives 
and components are trained. This requirement assures that persons 
assigned to these tasks are capable so that refuge alternatives and 
components are available and usable when needed. All units and 
components should be maintained using the manufacturer's specifications 
and procedures. The examiner should be trained in the aspects critical 
to the deployment and use of the refuge alternative. For some non-
routine maintenance and repair work, persons may need on-the-job 
training just before or as they conduct the maintenance or repair. For 
example, a manufacturer's representative or other knowledgeable person 
may need to be contacted for instructions. The training can vary given 
the scope of the tasks and the interval since the last training in that 
same task.
    Under final paragraph (a)(2), the operator must certify, by 
signature and date, the training of persons who examine, maintain, and 
repair refuge alternatives and components. The training certifications 
help MSHA and the operator assure that the appropriate

[[Page 80690]]

personnel have received the required training.
    Under final paragraph (b), the person conducting the maintenance or 
repair must make a record of all corrective action taken at the 
completion of each repair. Records of corrective action taken help 
identify defective parts and design flaws so they can be addressed 
appropriately to better assure the effective operation of the unit.
    Under final paragraph (c), the mine operator must keep training 
certifications and repair records at the mine for one year. 
Certifications and repair records are necessary to help MSHA and the 
operator identify any systemic defects or problems with the refuge 
alternative and assure that they are corrected.
    Commenters generally supported the training requirements. 
Commenters supported training that is comprehensive and practical. One 
commenter suggested that hands-on training be used whenever possible. 
Another commenter supported training in accordance with manufacturers' 
recommendations. Comments concerning quarterly training and annual 
expectations training are discussed elsewhere in this preamble under 
final Sec.  75.1504(b) and (c). The final rule is the same as proposed.
Section 75.1600-3 Communications Facilities; Refuge Alternatives
    Final Sec.  75.1600-3 requires that refuge alternatives be provided 
with a communications system. Paragraph (a)(1) requires a two-way 
communication facility that is a part of the mine communication system, 
which can be used from inside the refuge alternative. Paragraph (a)(2) 
requires an additional communication system and other requirements as 
defined in the communications portion of the operator's approved ERP. 
The additional communications system should be independent of the mine 
communication system and continuous to the surface. An additional means 
of communication will improve the survivability of communications post-
accident. When hardwired systems are used to meet the MINER Act 
requirement for redundant communication between surface and underground 
personnel, wires should be routed through separate entries or boreholes 
continuous to the surface.
    Commenters generally supported the proposal. Commenters agreed that 
a means of two-way communications from the refuge alternative to the 
surface should be available at all times. One commenter asked MSHA to 
add language to the rule clarifying that, as soon as it becomes 
commercially available, a two-way wireless communications system will 
be required in the ERP and, shortly thereafter, in all underground 
refuge alternatives.
    Communications with the persons in refuge alternatives are vital to 
mine rescue efforts. The knowledge of where miners are in refuge 
alternatives, their condition, and the conditions in the mine may make 
the difference between life-and-death in a post-accident crisis. The 
MINER Act requires that, by June 15, 2009, for an Emergency Response 
Plan to be approved, it must include a two-way wireless communication 
system and an electronic tracking system that permits surface personnel 
to determine the location of any persons trapped underground. If these 
systems cannot be adopted, the MINER Act requires that ERPs set forth 
an alternative means of compliance that approximates ``as closely as 
possible, the degree of functional utility and safety protection 
provided by the wireless two-way medium and tracking system.'' MSHA is 
working with NIOSH on this emerging technology and will provide further 
guidance to the mining community with respect to the Agency's 
expectations for ``wireless communication'' systems in ERPs. Because 
the ``fully wireless'' communications technology is not fully developed 
at this time, and it is not likely to be technically achievable for all 
mines in the foreseeable future, the final rule does not include a 
requirement for fully wireless communications. MSHA is aware that 
alternatives are being developed that would improve the communications 
for trapped miners. Manufacturers may need to provide other 
accommodations for these systems. The final rule uses the language 
``additional communications'' systems as defined in the communications 
portion of the operator's ERP. When a wireless system becomes 
available, the Agency will require mine operators to include them in 
their ERPs. The final rule makes an editorial change, but is the same 
as the proposal.

III. Executive Order 12866

    Executive Order (E.O.) 12866 requires that regulatory agencies 
assess both the costs and benefits of regulations. To comply with E.O. 
12866, MSHA has prepared a Regulatory Economic Analysis (REA) for the 
final rule. The REA contains supporting data and explanation for the 
summary materials presented in this preamble, including the covered 
mining industry, costs and benefits, feasibility, small business 
impacts, and paperwork. The REA can be found at MSHA's Web site at 
http://www.msha.gov/REGSINFO.HTM. A copy of the REA can be obtained 
from MSHA's Office of Standards, Regulations and Variances at the 
address in the ADDRESSES section of this preamble.
    Under E.O. 12866, a significant regulatory action is one meeting 
any of a number of specified conditions, including the following: 
having an annual effect on the economy of $100 million or more, 
creating a serious inconsistency or interfering with an action of 
another agency, materially altering the budgetary impact of 
entitlements or the rights of entitlement recipients, or raising novel 
legal or policy issues. Based on the REA, MSHA has determined that the 
final rule will have an effect of $100 million or more on the economy 
in the first year that the final rule is in effect and that, therefore, 
it is an economically significant regulatory action.

Congressional Review Act

    Under the Congressional Review Act (CRA), a major rule generally 
cannot take effect until 60 days after the rule is published. The term 
``major rule'' is defined under the CRA as any rule that results in or 
is likely to result in ``an annual effect on the economy of 
$100,000,000 or more. The costs in the REA represent what MSHA believes 
to be the upper bound of the range of estimated compliance costs: $129 
million first year and $53 million yearly. MSHA has presented these 
upper-bound estimates as a conservative approach to estimating 
compliance costs.
    The final rule allows existing prefabricated refuge alternative 
structures that states have approved and those that MSHA has accepted 
in approved ERPs that are in service prior to the effective date of the 
rule (60 days after date of publication) to be used until December 31, 
2018, or until replaced, whichever comes first. It also allows existing 
breathable air, air monitoring, and harmful gas removal components of 
either a prefabricated self-contained unit or a unit consisting of 15 
psi stoppings constructed prior to an event in a secure space and an 
isolated atmosphere that states have approved and those that MSHA has 
accepted in approved ERPs that are in use prior to the effective date 
of the rule (60 days after date of publication) to be used until 
December 31, 2013, or until replaced, whichever comes first. Refuge 
alternatives consisting of materials pre-positioned for miners to 
deploy in a secure space with an isolated

[[Page 80691]]

atmosphere that MSHA has accepted in approved ERPs that are in use 
prior to the effective date of the rule (60 days after date of 
publication) may be used until December 31, 2010, or until replaced, 
whichever comes first. First year costs could be lower because of use 
of existing refuge alternatives as described above.

A. Population at Risk

    The final rule applies to all underground coal mines in the United 
States. As of 2007, there were 624 underground coal mines, employing 
approximately 42,200 miners, of which 613 mines employed miners working 
underground. These 613 mines employed approximately 37,800 miners and 
5,100 contractors working underground, for a total of approximately 
42,900 underground employees.

B. Benefits

1. Introduction
    One of the goals of the MINER Act is to improve emergency response 
capability in underground coal mines. MSHA has published a number of 
standards in the last several years and has stated in them that, in the 
event of a mine emergency in an underground coal mine, the miner should 
be trained to evacuate the mine. In addition, over the years, MSHA has 
published a number of standards that address the safety of miners in 
the event of explosions, fires, or inundations in underground coal 
mines. These standards include requirements concerning escape from a 
mine, such as: Two separate and distinct escapeways for each working 
section, maps in an underground mine that delineate escape routes out 
of the mine, miner participation in practice drills to escape the mine 
in an emergency situation, and life-saving devices such as lifelines 
and self-contained self-rescue (SCSR) devices to facilitate escape.
    The final rule will increase miners' safety and improve mine 
operators' preparedness for mine emergencies by requiring refuge 
alternatives underground to protect and sustain miners trapped when a 
life-threatening event occurs that prevents escape.
2. Evaluation of Accident and Injury Data
    MSHA has evaluated its accident and injury data from 1900 through 
2006. During that period, 264 miners who were alive after a mine 
accident died later during rescue or escape. MSHA has estimated that 
recent MSHA standards could have saved the lives of 43 of these miners. 
Thus, for purposes of estimating benefits, this final rule could 
potentially have saved the lives of 221 miners over the 107 year 
period. If refuge alternatives had been available, MSHA estimates that 
the range of lives saved would have been between a low of 25 percent 
and a high of 75 percent. Using these estimates, the final rule 
potentially could save an average of from one to three lives every two 
years.

C. Compliance Costs

    MSHA estimates that the total yearly cost of the final rule is 
approximately $53 million: $3 million for manufacturers and $50 million 
for underground coal mine operators. The first-year cost of the final 
rule is approximately $129 million. The costs in the REA represent what 
MSHA believes to be the upper bound of the range of estimated 
compliance costs. MSHA has presented these upper-bound estimates as a 
conservative approach to estimating compliance costs. Costs could be 
lower as mine operators evaluate their situation for using existing 
refuge alternatives under the requirements of the final rule.
    By mine size, the estimated yearly cost is $4 million for operators 
with 1-19 employees; $41 million for operators with 20-500 employees; 
and $5 million for operators with 501+ employees.
    The $53 million of yearly costs consist of approximately: $2.6 
million for refuge alternative and component application and approval 
costs; $4 million for roof control plan information; $6 million for 
additional time for preshift examinations; $13 million for revisions to 
the mine emergency evacuation program of instruction, mine emergency 
evacuation training and drills; $27 million for refuge alternatives and 
emergency response plan and $0.5 million for revisions to maps, 
training and records for examination, maintenance and repair of refuge 
alternatives and components, and communication facilities.
    Table 1 presents a summary of the yearly costs of the final rule by 
mine size and by cost category. In some cases the totals may deviate 
from the sum of the components due to rounding.

                                 Table 1--Summary of Yearly Costs of Final Rule
----------------------------------------------------------------------------------------------------------------
           Requirement                                                                            Yearly cost
----------------------------------------------------------------------------------------------------------------
                                              Cost to Manufacturers
----------------------------------------------------------------------------------------------------------------
 Application and Approval Costs.                                                              $2.6 million.
----------------------------------------------------------------------------------------------------------------
                                             Cost to Mine Operators
----------------------------------------------------------------------------------------------------------------
                                                                     Mine Size
                                 -------------------------------------------------------------------------------
                                    1-19 employees     20-500 employees     501+ employees           Total
                                 -------------------------------------------------------------------------------
 Roof Control Plan Information..  $438,000..........  $3.2 million......  $297,000..........  $4.0 million.
 Preshift Examination...........  $235,000..........  $5.0 million......  $923,000..........  $6.1 million.
 Mine Emergency Evacuation and    $515,000..........  $10.3 million.....  $1.9 million......  $12.8 million.
 Firefighting Program of
 Instruction, Mine Emergency
 Evacuation Training and Drills.
 Refuge Alternatives and          $3.0 million......  $21.9 million.....  $2.0 million......  $26.9 million.
 Emergency Response Plan.
 Other Provisions*..............  $60,000...........  $400,000..........  $30,000...........  $0.5 million.
                                 -------------------------------------------------------------------------------
    Total Yearly Cost to Mine     $4.3 million......  $40.8 million.....  $5.2 million......  $50.3 million.
     Operators.
----------------------------------------------------------------------------------------------------------------
* Includes Mine Ventilation Map; Mine Map; and Escapeway Maps; Training and Records for Examination,
  Maintenance, and Repair of Refuge Alternatives and Components; and Communication Facilities.


[[Page 80692]]

IV. Feasibility

    MSHA has concluded that the requirements of the final rule are both 
technologically and economically feasible. MSHA, however, recognizes 
that not all refuge alternatives will be appropriate for all mining 
conditions. In addition, MSHA recognizes that some aspects of refuge 
alternatives involve developing technology; for example, wireless 
communications facilities and means of controlling the temperature 
inside refuge alternatives.

A. Technological Feasibility

    Refuge alternatives are technologically feasible. They use 
commercially available technology that can reasonably be integrated 
into most coal mining operations. Refuge alternatives are currently 
being manufactured for, and some are currently in place, in underground 
coal mines. In addition, refuge alternative components are currently 
available. MSHA may approve refuge alternatives or components that 
incorporate new technology, if the applicant demonstrates that the 
refuge alternative or components provide no less protection than those 
meeting the requirements of the final rule.
    MSHA recognizes that using refuge alternatives in mines with low 
seam heights could be problematic. However, the final rule has changed 
the proposed volume requirements to take seam height into 
consideration.
    MSHA also recognizes that research on some requirements of the 
final rule is ongoing. For example, the final rule requires additional 
communication systems in the operator's approved Emergency Response 
Plan (ERP). MSHA is aware that these additional systems may not yet be 
available, but as they are developed, mine operators will be required 
to include them in their ERPs. The MINER Act requires, by June 15, 
2009, that ERPs contain wireless communication systems. MSHA is working 
with NIOSH on this emerging technology and will provide further 
guidance to the mining community with respect to the Agency's 
expectations for ``wireless communication'' systems in ERPs.

B. Economic Feasibility

    The yearly compliance cost of the final rule to underground coal 
mine operators is $50.3 million, which is approximately 0.4 percent of 
the total annual revenue of $14.0 billion ($50.3 million/$14.0 billion) 
for all underground coal mines. MSHA concludes that the final rule will 
be economically feasible for these mines because the total yearly 
compliance cost is below one percent of the estimated annual revenue 
for all underground coal mines.

V. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    Under the Regulatory Flexibility Act (RFA) of 1980, as amended by 
the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA 
has analyzed the impact of the final rule on small entities. Based on 
that analysis, MSHA has notified the Chief Counsel for Advocacy, Small 
Business Administration (SBA), and made the certification under the RFA 
at 5 U.S.C. 605(b) that the final rule does not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for this certification is presented in the REA and summarized 
below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of the final rule on small 
entities, MSHA must use the SBA definition for a small entity, or after 
consultation with the SBA Office of Advocacy, establish an alternative 
definition for the mining industry by publishing that definition in the 
Federal Register for notice and comment. MSHA has not established an 
alternative definition and is required to use the SBA definition. The 
SBA defines a small entity in the mining industry as an establishment 
with 500 or fewer employees.
    MSHA has also examined the impact of the final rule on underground 
coal mines with fewer than 20 employees, which MSHA has traditionally 
referred to as ``small mines.'' These small mines differ from larger 
mines not only in the number of employees, but also in economies of 
scale in material produced, in the type and amount of production 
equipment, and in supply inventory. Therefore, the cost of complying 
with MSHA's final rule and the impact of the final rule on mines with 
fewer than 20 employees will differ from the cost and impact on mines 
with 500 or fewer employees.
    This analysis complies with the legal requirements of the RFA for 
an analysis of the impact on ``small entities'' while continuing MSHA's 
traditional concern for ``small mines.''

B. Factual Basis for Certification

    MSHA initially evaluates the impact on small entities by comparing 
the estimated compliance cost of a rule for small entities in the 
sector affected by the rule to the estimated revenue of the affected 
sector. When the estimated compliance cost is less than one percent of 
the estimated revenue, the Agency believes it is generally appropriate 
to conclude that the rule will not have a significant economic impact 
on a substantial number of small entities. When the estimated 
compliance cost exceeds one percent of revenue, MSHA investigates 
whether further analysis is required.
    Total underground coal production in 2007 was approximately 7.7 
million tons for mines with 1 to 19 employees and 278 million tons for 
mines with 1 to 500 employees. Multiplying tons by the 2007 price of 
underground coal of $40.29 per ton, 2007 underground coal revenue was 
$310 million for mines with 1 to 19 employees and $11.2 billion for 
mines with 1 to 500 employees. The final rule will result in an average 
yearly cost per mine of approximately $19,000 for mines with 1 to 19 
employees and $73,000 for mines with 1 to 500 employees. MSHA has 
provided in the REA to this final rule a complete analysis of the costs 
of the final rule for each size category of mines.
    The estimated yearly cost of the final rule for underground coal 
mines with 1 to 19 employees is approximately $4.3 million, or 
approximately $19,000 per mine. This is equal to approximately 1.38 
percent of annual revenues. MSHA estimates that some mines might 
experience costs somewhat higher than the average per mine in its size 
category while others might experience lower costs.
    Under the SBA's definition of a small mine, the estimated yearly 
cost of the final rule for underground coal mines with 1 to 500 
employees is approximately $45 million, or approximately $73,000 per 
mine. This is equal to approximately 0.40 percent of annual revenue. 
Even though the analysis reflects a range of impacts for different mine 
sizes, from 0.40 percent to 1.38 percent of annual revenue, the Agency 
concludes that this is not a significant economic impact on a 
substantial number of small mines. Because the yearly cost of the final 
rule is less than one percent of annual revenues for small underground 
coal mines, as defined by SBA, MSHA has certified that the final rule 
will not have a significant impact on a substantial number of small 
mining entities, as defined by SBA.

VI. Paperwork Reduction Act

A. Summary

    The information collection package for the final rule has been 
assigned OMB

[[Page 80693]]

Control Number 1219-0146. The final rule contains information 
collection requirements that will affect requirements in existing 
paperwork packages with OMB Control Numbers 1219-0004, 1219-0054, 1219-
0066, 1219-0073, 1219-0088, and 1219-0141. The information collection 
requirements contained in the final rule are found in final Sec. Sec.  
7.503, 75.221, 75.360, 75.372, 75.1200, 75.1502, 75.1505, 75.1507, and 
75.1508. The final rule will result in 87,732 burden hours and related 
costs of approximately $6.6 million in the first year the rule is in 
effect. In the second year the rule is in effect, and every year 
thereafter, the final rule will result in 75,681 burden hours and 
related costs of approximately $6.4 million.
    For a detailed summary of the burden hours and related costs by 
provision, see the REA accompanying the final rule. The REA is posted 
on MSHA's Web site at http://www.msha.gov/REGSINFO.HTM. A copy of the 
REA can be obtained from MSHA's Office of Standards, Regulations, and 
Variances at the address provided in the ADDRESSES section of this 
preamble.

B. Procedural Details

    The information collection package has been submitted to OMB for 
review under 44 U.S.C. 3504, paragraph (h) of the Paperwork Reduction 
Act of 1995, as amended. A copy of the information collection package 
can be obtained from the Department of Labor by electronic mail request 
to [email protected] or by phone request to 202-693-4129.
    Since the proposed rule was published, MSHA has not received any 
substantive comments on the information collection package.

VII. Other Regulatory Analyses

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the final rule under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that the final 
rule does not include any Federal mandate that may result in increased 
expenditures by State, local, or tribal governments or significantly or 
uniquely affect small governments. MSHA estimates that the final rule 
will increase private sector expenditures by more than $100 million in 
the first year and has included an analysis of the costs of the 
requirements of the final rule in the REA.

B. Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    The final rule has no effect on family well-being or stability, 
marital commitment, parental rights or authority, or income or poverty 
of families and children. Accordingly, Sec.  654 of the Treasury and 
General Government Appropriations Act of 1999 (5 U.S.C. 601 note) 
requires no further agency action, analysis, or assessment.

C. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    The final rule does not implement a policy with takings 
implications. Accordingly, Executive Order 12630 requires no further 
agency action or analysis.

D. Executive Order 12988: Civil Justice Reform

    The final rule was written to provide a clear legal standard for 
affected conduct and was carefully reviewed to eliminate drafting 
errors and ambiguities, so as to minimize litigation and undue burden 
on the Federal court system. Accordingly, the final rule meets the 
applicable standards provided in Sec.  3 of Executive Order 12988.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The final rule has no adverse impact on children. Accordingly, 
Executive Order 13045 requires no further agency action or analysis.

F. Executive Order 13132: Federalism

    The final rule does not have ``federalism implications'' because it 
does not ``have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' West Virginia and Illinois have laws on refuge 
alternatives and MSHA has drafted the final rule to minimize conflict 
with these laws.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    The final rule does not have ``tribal implications'' because it 
does not ``have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes.'' Accordingly, Executive 
Order 13175 requires no further agency action or analysis.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    The final rule has been reviewed for its impact on the supply, 
distribution, and use of energy because it applies to the coal mining 
industry. Insofar as the final rule will result in yearly costs of 
approximately $50 million to the underground coal mining industry, 
relative to annual revenues of $14.0 billion in 2007, it is not a 
``significant energy action'' because it is not ``likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy * * * (including a shortfall in supply, price increases, and 
increased use of foreign supplies).'' Accordingly, Executive Order 
13211 requires no further Agency action or analysis.

I. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    MSHA has reviewed the final rule to assess and take appropriate 
account of its potential impact on small businesses, small governmental 
jurisdictions, and small organizations. MSHA has determined and 
certified that the final rule does not have a significant economic 
impact on a substantial number of small entities.

List of Subjects

30 CFR Part 7

    Coal mines, Incorporation by reference, Mine safety and health, 
Reporting and recordkeeping requirements, Underground mining.

30 CFR Part 75

    Coal mines, Mine safety and health, Reporting and recordkeeping 
requirements, Safety, Training programs, Underground mining.

    Dated: December 19, 2008.
Richard E. Stickler,
Acting Assistant Secretary for Mine Safety and Health.

0
For the reasons set out in the preamble, and under the authority of the 
Federal Mine Safety and Health Act of 1977 as amended by the Mine 
Improvement and New Emergency Response Act of 2006, MSHA is amending 
chapter I of title 30 of the Code of Federal Regulations as follows:

PART 7--TESTING BY APPLICANT OR THIRD PARTY--[AMENDED]

0
1. The authority citation for part 7 continues to read as follows:


[[Page 80694]]


    Authority: 30 U.S.C. 957.


0
2. Add new subpart L to read as follows:
Subpart L--Refuge Alternatives
Sec.
7.501 Purpose and scope.
7.502 Definitions.
7.503 Application requirements.
7.504 Refuge alternatives and components; general requirements.
7.505 Structural components.
7.506 Breathable air components.
7.507 Air-monitoring components.
7.508 Harmful gas removal components.
7.509 Approval markings.
7.510 New technology.


Sec.  7.501  Purpose and scope.

    This subpart L establishes requirements for MSHA approval of refuge 
alternatives and components for use in underground coal mines. Refuge 
alternatives are intended to provide a life-sustaining environment for 
persons trapped underground when escape is impossible.


Sec.  7.502  Definitions.

    The following definitions apply in this subpart:
    Apparent temperature. A measure of relative discomfort due to the 
combined effects of air movement, heat, and humidity on the human body.
    Breathable oxygen. Oxygen that is at least 99 percent pure with no 
harmful contaminants.
    Flash fire. A fire that rapidly spreads through a diffuse fuel, 
such as airborne coal dust or methane, without producing damaging 
pressure.
    Noncombustible material. Material, such as concrete or steel, that 
will not ignite, burn, support combustion, or release flammable vapors 
when subjected to fire or heat.
    Overpressure. The highest pressure over the background atmospheric 
pressure that could result from an explosion, which includes the impact 
of the pressure wave on an object.
    Refuge alternative. A protected, secure space with an isolated 
atmosphere and integrated components that create a life-sustaining 
environment for persons trapped in an underground coal mine.


Sec.  7.503  Application requirements.

    (a) An application for approval of a refuge alternative or 
component shall include:
    (1) The refuge alternative's or component's make and model number, 
if applicable.
    (2) A list of the refuge alternative's or component's parts that 
includes--
    (i) The MSHA approval number for electric-powered equipment;
    (ii) Each component's or part's in-mine shelf life, service life, 
and recommended replacement schedule;
    (iii) Materials that have a potential to ignite used in each 
component or part with their MSHA approval number; and
    (iv) A statement that the component or part is compatible with 
other components and, upon replacement, is equivalent to the original 
component or part.
    (3) The capacity and duration (the number of persons it is designed 
to maintain and for how long) of the refuge alternative or component on 
a per-person per-hour basis.
    (4) The length, width, and height of the space required for storage 
of each component.
    (b) The application for approval of the refuge alternative shall 
include the following:
    (1) A description of the breathable air component, including 
drawings, air-supply sources, piping, regulators, and controls.
    (2) The maximum volume, excluding the airlock; the dimensions of 
floor space and volume provided for each person using the refuge 
alternative; and the floor space and volume of the airlock.
    (3) The maximum positive pressures in the interior space and the 
airlock and a description of the means used to limit or control the 
positive pressure.
    (4) The maximum allowable apparent temperature of the interior 
space and the airlock and the means to control the apparent 
temperature.
    (5) The maximum mine air temperature under which the refuge 
alternative is designed to operate when the unit is fully occupied.
    (6) Drawings that show the features of each component and contain 
sufficient information to document compliance with the technical 
requirements.
    (7) A manual that contains sufficient detail for each refuge 
alternative or component addressing in-mine transportation, operation, 
and maintenance of the unit.
    (8) A summary of the procedures for deploying refuge alternatives.
    (9) A summary of the procedures for using the refuge alternative.
    (10) The results of inspections, evaluations, calculations, and 
tests conducted under this subpart.
    (c) The application for approval of the air-monitoring component 
shall specify the following:
    (1) The operating range, type of sensor, gas or gases measured, and 
environmental limitations, including the cross-sensitivity to other 
gases, of each detector or device in the air-monitoring component.
    (2) The procedure for operation of the individual devices so that 
they function as necessary to test gas concentrations over a 96-hour 
period.
    (3) The procedures for monitoring and maintaining breathable air in 
the airlock, before and after purging.
    (4) The instructions for determining the quality of the atmosphere 
in the airlock and refuge alternative interior and a means to maintain 
breathable air in the airlock.
    (d) The application for approval of the harmful gas removal 
component shall specify the following:
    (1) The volume of breathable air available for removing harmful gas 
both at start-up and while persons enter through the airlock.
    (2) The maximum volume of each gas that the component is designed 
to remove on a per-person per-hour basis.


Sec.  7.504  Refuge alternatives and components; general requirements.

    (a) Refuge alternatives and components:
    (1) Electrical components that are exposed to the mine atmosphere 
shall be approved as intrinsically safe for use. Electrical components 
located inside the refuge alternative shall be either approved as 
intrinsically safe or approved as permissible.
    (2) Shall not produce continuous noise levels in excess of 85 dBA 
in the structure's interior.
    (3) Shall not liberate harmful or irritating gases or particulates 
into the structure's interior or airlock.
    (4) Shall be designed so that the refuge alternative can be safely 
moved with the use of appropriate devices such as tow bars.
    (5) Shall be designed to withstand forces from collision of the 
refuge alternative structure during transport or handling.
    (b) The apparent temperature in the structure shall be controlled 
as follows:
    (1) When used in accordance with the manufacturer's instructions 
and defined limitations, the apparent temperature in the fully occupied 
refuge alternative shall not exceed 95 degrees Fahrenheit ([deg]F).
    (2) Tests shall be conducted to determine the maximum apparent 
temperature in the refuge alternative when used at maximum occupancy 
and in conjunction with required components. Test results including 
calculations shall be reported in the application.
    (c) The refuge alternative shall include:
    (1) A two-way communication facility that is a part of the mine 
communication system, which can be

[[Page 80695]]

used from inside the refuge alternative; and accommodations for an 
additional communication system and other requirements as defined in 
the communications portion of the operator's approved Emergency 
Response Plan.
    (2) Lighting sufficient for persons to perform tasks.
    (3) A means to contain human waste effectively and minimize 
objectionable odors.
    (4) First aid supplies.
    (5) Materials, parts, and tools for repair of components.
    (6) A fire extinguisher that--
    (i) Meets the requirements for portable fire extinguishers used in 
underground coal mines under part 75;
    (ii) Is appropriate for extinguishing fires involving the chemicals 
used for harmful gas removal; and
    (iii) Uses a low-toxicity extinguishing agent that does not produce 
a hazardous by-product when deployed.
    (d) Containers used for storage of refuge alternative components or 
provisions shall be--
    (1) Airtight, waterproof, and rodent-proof;
    (2) Easy to open and close without the use of tools; and
    (3) Conspicuously marked with an expiration date and instructions 
for use.


Sec.  7.505  Structural components.

    (a) The structure shall--
    (1) Provide at least 15 square feet of floor space per person and 
30 to 60 cubic feet of volume per person according to the following 
chart. The airlock can be included in the space and volume if waste is 
disposed outside the refuge alternative.

------------------------------------------------------------------------
                                                            Unrestricted
                                                           volume (cubic
                  Mining height (inches)                     feet) per
                                                              person *
------------------------------------------------------------------------
36 or less...............................................           30
>36-<=42.................................................           37.5
>42-<=48.................................................           45
>48-<=54.................................................           52.5
>54......................................................           60
------------------------------------------------------------------------
* Includes an adjustment of 12 inches for clearances.

    (2) Include storage space that secures and protects the components 
during transportation and that permits ready access to components for 
maintenance examinations.
    (3) Include an airlock that creates a barrier and isolates the 
interior space from the mine atmosphere, except for a refuge 
alternative capable of maintaining adequate positive pressure.
    (i) The airlock shall be designed for multiple uses to accommodate 
the structure's maximum occupancy.
    (ii) The airlock shall be configured to accommodate a stretcher 
without compromising its function.
    (4) Be designed and made to withstand 15 pounds per square inch 
(psi) overpressure for 0.2 seconds prior to deployment.
    (5) Be designed and made to withstand exposure to a flash fire of 
300 [deg]F for 3 seconds prior to deployment.
    (6) Be made with materials that do not have a potential to ignite 
or are MSHA-approved.
    (7) Be made from reinforced material that has sufficient durability 
to withstand routine handling and resist puncture and tearing during 
deployment and use.
    (8) Be guarded or reinforced to prevent damage to the structure 
that would hinder deployment, entry, or use.
    (9) Permit measurement of outside gas concentrations without 
exiting the structure or allowing entry of the outside atmosphere.
    (b) Inspections or tests shall be conducted as follows:
    (1) A test shall be conducted to demonstrate that trained persons 
can fully deploy the structure, without the use of tools, within 10 
minutes of reaching the refuge alternative.
    (2) A test shall be conducted to demonstrate that an overpressure 
of 15 psi applied to the pre-deployed refuge alternative structure for 
0.2 seconds does not allow gases to pass through the structure 
separating the interior and exterior atmospheres.
    (3) A test shall be conducted to demonstrate that a flash fire of 
300 [deg]F for 3 seconds does not allow gases to pass from the outside 
to the inside of the structure.
    (4) An inspection shall be conducted to determine that the 
overpressure forces of 15 psi applied to the pre-deployed refuge 
alternative structure for 0.2 seconds does not prevent the stored 
components from operating.
    (5) An inspection shall be conducted to determine that a flash fire 
of 300 [deg]F for 3 seconds does not prevent the stored components from 
operating.
    (6) A test shall be conducted to demonstrate that each structure 
resists puncture and tearing when tested in accordance with ASTM D2582-
07 Standard Test Method for Puncture-Propagation Tear Resistance of 
Plastic Film and Thin Sheeting. This publication is incorporated by 
reference. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. A copy may be obtained from the American Society for Testing 
Materials (ASTM), 100 Barr Harbor Drive, West Conshohocken, 
Pennsylvania 19428-2959. A copy may be inspected at any MSHA Coal Mine 
Safety and Health district office,; or at MSHA's Office of Standards, 
1100 Wilson Blvd., Room 2353, Arlington, Virginia 22209 (phone: 202-
693-9440); or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal _regulations/ibr_ locations.html.
    (7) A test shall be conducted to demonstrate that each reasonably 
anticipated repair can be completed within 10 minutes of opening the 
storage space for repair materials and tools.
    (8) A test shall be conducted to demonstrate that no harmful gases 
or noticeable odors are released from nonmetallic materials before or 
after the flash fire test. The test shall identify the gases released 
and determine their concentrations.
    (c) If pressurized air is used to deploy the structure or maintain 
its shape, the structure shall--
    (1) Include a pressure regulator or other means to prevent over 
pressurization of the structure, and
    (2) Provide a means to repair and re-pressurize the structure in 
case of failure of the structure or loss of air pressure.
    (d) The refuge alternative structure shall provide a means--
    (1) To conduct a preshift examination, without entering the 
structure, of components critical for deployment; and
    (2) To indicate unauthorized entry or tampering.


Sec.  7.506  Breathable air components.

    (a) Breathable air shall be supplied by compressed air cylinders, 
compressed breathable-oxygen cylinders, or boreholes with fans 
installed on the surface or compressors installed on the surface. Only 
uncontaminated breathable air shall be supplied to the refuge 
alternative.
    (b) Mechanisms shall be provided and procedures shall be included 
so that, within the refuge alternative,--
    (1) The breathable air sustains each person for 96 hours,
    (2) The oxygen concentration is maintained at levels between 18.5 
and 23 percent, and
    (3) The average carbon dioxide concentration is 1.0 percent or less 
and excursions do not exceed 2.5 percent.
    (c) Breathable air supplied by compressed air from cylinders, fans, 
or compressors shall provide a minimum flow rate of 12.5 cubic feet per 
minute of breathable air for each person.

[[Page 80696]]

    (1) Fans or compressors shall meet the following:
    (i) Be equipped with a carbon monoxide detector located at the 
surface that automatically provides a visual and audible alarm if 
carbon monoxide in supplied air exceeds 10 parts per million (ppm).
    (ii) Provide in-line air-purifying sorbent beds and filters or 
other equivalent means to assure the breathing air quality and prevent 
condensation, and include maintenance instructions that provide 
specifications for periodic replacement or refurbishment.
    (iii) Provide positive pressure and an automatic means to assure 
that the pressure is relieved at 0.18 psi, or as specified by the 
manufacturer, above mine atmospheric pressure in the refuge 
alternative.
    (iv) Include warnings to assure that only uncontaminated breathable 
air is supplied to the refuge alternative.
    (v) Include air lines to supply breathable air from the fan or 
compressor to the refuge alternative.
    (A) Air lines shall be capable of preventing or removing water 
accumulation.
    (B) Air lines shall be designed and protected to prevent damage 
during normal mining operations, a flash fire of 300 [deg]F for 3 
seconds, a pressure wave of 15 psi overpressure for 0.2 seconds, and 
ground failure.
    (vi) Assure that harmful or explosive gases, water, and other 
materials cannot enter the breathable air.
    (2) Redundant fans or compressors and power sources shall be 
provided to permit prompt re-activation of equipment in the event of 
failure.
    (d) Compressed breathable oxygen shall--
    (1) Include instructions for deployment and operation;
    (2) Provide oxygen at a minimum flow rate of 1.32 cubic feet per 
hour per person;
    (3) Include a means to readily regulate the pressure and volume of 
the compressed oxygen;
    (4) Include an independent regulator as a backup in case of 
failure; and
    (5) Be used only with regulators, piping, and other equipment that 
is certified and maintained to prevent ignition or combustion.
    (e) The applicant shall prepare and submit an analysis or study 
demonstrating that the breathable air component will not cause an 
ignition.
    (1) The analysis or study shall specifically address oxygen fire 
hazards and fire hazards from chemicals used for removal of carbon 
dioxide.
    (2) The analysis or study shall identify the means used to prevent 
any ignition source.


Sec.  7.507  Air-monitoring components.

    (a) Each refuge alternative shall have an air-monitoring component 
that provides persons inside with the ability to determine the 
concentrations of carbon dioxide, carbon monoxide, oxygen, and methane, 
inside and outside the structure, including the airlock.
    (b) Refuge alternatives designed for use in mines with a history of 
harmful gases, other than carbon monoxide, carbon dioxide, and methane, 
shall be equipped to measure the harmful gases' concentrations.
    (c) The air-monitoring component shall be inspected or tested and 
the test results shall be included in the application.
    (d) The air-monitoring component shall meet the following:
    (1) The total measurement error, including the cross-sensitivity to 
other gases, shall not exceed  10 percent of the reading, 
except as specified in the approval.
    (2) The measurement error limits shall not be exceeded after start-
up, after 8 hours of continuous operation, after 96 hours of storage, 
and after exposure to atmospheres with a carbon monoxide concentration 
of 999 ppm (full-scale), a carbon dioxide concentration of 3 percent, 
and full-scale concentrations of other gases.
    (3) Calibration gas values shall be traceable to the National 
Institute for Standards and Technology (NIST) ``Standard Reference 
Materials'' (SRMs).
    (4) The analytical accuracy of the calibration gas and span gas 
values shall be within 2.0 percent of NIST gas standards.
    (5) The detectors shall be capable of being kept fully charged and 
ready for immediate use.


Sec.  7.508  Harmful gas removal components.

    (a) Each refuge alternative shall include means for removing 
harmful gases.
    (1) Purging or other effective procedures shall be provided for the 
airlock to dilute the carbon monoxide concentration to 25 ppm or less 
and the methane concentration to 1.0 percent or less as persons enter, 
within 20 minutes of persons deploying the refuge alternative.
    (2) Chemical scrubbing or other effective procedures shall be 
provided so that the average carbon dioxide concentration in the 
occupied structure shall not exceed 1.0 percent over the rated 
duration, and excursions shall not exceed 2.5 percent.
    (i) Carbon dioxide removal components shall be used with breathable 
air cylinders or oxygen cylinders.
    (ii) Carbon dioxide removal components shall remove carbon dioxide 
at a rate of 1.08 cubic feet per hour per person.
    (3) Instructions shall be provided for deployment and operation of 
the harmful gas removal component.
    (b) The harmful gas removal component shall meet the following 
requirements: Each chemical used for removal of harmful gas shall be--
    (1) Contained such that when stored or used it cannot come in 
contact with persons, and it cannot release airborne particles.
    (2) Provided with all materials; parts, such as hangers, racks, and 
clips; equipment; and instructions necessary for deployment and use.
    (3) Stored in an approved container that is conspicuously marked 
with the manufacturer's instructions for disposal of used chemical.
    (c) Each harmful gas removal component shall be tested to determine 
its ability to remove harmful gases.
    (1) The component shall be tested in a refuge alternative structure 
that is representative of the configuration and maximum volume for 
which the component is designed.
    (i) The test shall include three sampling points located vertically 
along the centerlines of the length and width of the structure and 
equally spaced over the horizontal centerline of the height of the 
structure.
    (ii) The structure shall be sealed airtight.
    (iii) The operating gas sampling instruments shall be placed inside 
the structure and continuously exposed to the test atmosphere.
    (iv) Sampling instruments shall simultaneously measure the gas 
concentrations at the three sampling points.
    (2) For testing the component's ability to remove carbon monoxide, 
the structure shall be filled with a test gas of either purified 
synthetic air or purified nitrogen that contains 400 ppm carbon 
monoxide, 5 percent.
    (i) After a stable concentration of 400 ppm, 5 percent, 
carbon monoxide has been obtained for 5 minutes at all three sampling 
points, a timer shall be started and the structure shall be purged or 
carbon monoxide otherwise removed.
    (ii) Carbon monoxide concentration readings from each of the three 
sampling instruments shall be recorded every 2 minutes.
    (iii) The time shall be recorded from the start of harmful gas 
removal until

[[Page 80697]]

the readings of the three sampling instruments all indicate a carbon 
monoxide concentration of 25 ppm or less.
    (3) For testing the component's ability to remove carbon dioxide, 
the carbon dioxide concentration shall not exceed 1.0 percent over the 
rated duration and excursions shall not exceed 2.5 percent under the 
following conditions:
    (i) At 55 [deg]F (4 [deg]F), 1 atmosphere (1 percent), and 50 percent (5 percent) relative 
humidity.
    (ii) At 55 [deg]F (4 [deg]F), 1 atmosphere (1 percent), and 100 percent (5 percent) relative 
humidity.
    (iii) At 90 [deg]F (4 [deg]F), 1 atmosphere (1 percent), and 50 percent (5 percent) relative 
humidity.
    (iv) At 82 [deg]F (4 [deg]F), 1 atmosphere (1 percent), and 100 percent (5 percent) relative 
humidity.
    (4) Testing shall demonstrate the component's continued ability to 
remove harmful gases effectively throughout its designated shelf-life, 
specifically addressing the effects of storage and transportation.
    (d) Alternate performance tests may be conducted if the tests 
provide the same level of assurance of the harmful gas removal 
component's capability as the tests specified in paragraph (c) of this 
section. Alternate tests shall be specified in the approval 
application.


Sec.  7.509  Approval markings.

    (a) Each approved refuge alternative or component shall be 
identified by a legible, permanent approval marking that is securely 
and conspicuously attached to the component or its container.
    (b) The approval marking shall be inscribed with the component's 
MSHA approval number and any additional markings required by the 
approval.
    (c) The refuge alternative structure shall provide a conspicuous 
means for indicating an out-of-service status, including the reason it 
is out of service.
    (d) The airlock shall be conspicuously marked with the recommended 
maximum number of persons that can use it at one time.


Sec.  7.510  New technology.

    MSHA may approve a refuge alternative or a component that 
incorporates new knowledge or technology, if the applicant demonstrates 
that the refuge alternative or component provides no less protection 
than those meeting the requirements of this subpart.

PART 75--MANDATORY SAFETY STANDARDS-UNDERGROUND COAL MINES--
[AMENDED]

0
3. The authority citation for part 75 continues to read as follows:

    Authority: 30 U.S.C. 811.


0
4. Amend Sec.  75.221 by adding paragraph (a)(12) to read as follows:


Sec.  75.221  Roof control plan information.

    (a) * * *
    (12) A description of the roof and rib support necessary for the 
refuge alternatives.
* * * * *

0
5. Amend Sec.  75.313 by adding paragraph (f) to read as follows:


Sec.  75.313  Main mine fan stoppage with persons underground.

* * * * *
    (f) Any electrical refuge alternative components exposed to the 
mine atmosphere shall be approved as intrinsically safe for use during 
fan stoppages. Any electrical refuge alternative components located 
inside the refuge alternative shall be either approved as intrinsically 
safe or approved as permissible for use during fan stoppages.

0
6. Amend Sec.  75.360 by redesignating paragraphs (d) through (g) as 
paragraphs (e) through (h) and adding a new paragraph (d) to read as 
follows:


Sec.  75.360  Preshift examination at fixed intervals.

* * * * *
    (d) The person conducting the preshift examination shall check the 
refuge alternative for damage, the integrity of the tamper-evident seal 
and the mechanisms required to deploy the refuge alternative, and the 
ready availability of compressed oxygen and air.
* * * * *

0
7. Amend Sec.  75.372 by revising paragraph (b)(11) to read as follows:


Sec.  75.372  Mine ventilation map.

* * * * *
    (b) * * *
    (11) The location of all escapeways and refuge alternatives.
* * * * *

0
8. Amend Sec.  75.1200-1 by adding paragraph (n) to read as follows:


Sec.  75.1200-1  Additional information on mine map.

* * * * *
    (n) The locations of refuge alternatives.

0
9. Amend Sec.  75.1202-1 by revising paragraph (b)(4) to read as 
follows:


Sec.  75.1202-1  Temporary notations, revisions, and supplements.

* * * * *
    (b) * * *
    (4) Escapeways and refuge alternatives designated by means of 
symbols.


Sec.  75.1500  [Reserved]

0
10. Remove and reserve Sec.  75.1500.

0
11. Amend Sec.  75.1501 by revising paragraph (a)(1) to read as 
follows:


Sec.  75.1501  Emergency evacuations.

    (a) * * *
    (1) 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 locations of the mine 
escapeways and refuge alternatives, the mine communications system, any 
mine monitoring system if used, locations of firefighting equipment, 
the mine's Emergency Response Plan, the Mine Rescue Notification Plan, 
and the Mine Emergency Evacuation and Firefighting Program of 
Instruction.
* * * * *

0
12. Amend Sec.  75.1502 as follows:
0
A. Redesignating paragraphs (c)(3) through (c)(8) as paragraphs (c)(4) 
through (c)(9).
0
B. Add paragraph (c)(3).
0
C. Revise paragraphs (c)(4)(iv) and (v).
0
D. Add paragraph (c)(4)(vi).
0
E. Revise paragraph (c)(8).
0
F. Add paragraphs (c)(10) through (c)(12).
    The revisions read as follows:


Sec.  75.1502  Mine emergency evacuation and firefighting program of 
instruction.

* * * * *
    (c) * * *
* * * * *
    (3) The deployment, use, and maintenance of refuge alternatives.
    (4) * * *
    (iv) Switching escapeways, as applicable;
    (v) Negotiating any other unique escapeway conditions; and
    (vi) Using refuge alternatives.
* * * * *
    (8) A review of the mine map; the escapeway system; the escape, 
firefighting, and emergency evacuation plan in effect at the mine; and 
the locations of refuge alternatives and abandoned areas.
* * * * *
    (10) A summary of the procedures related to deploying refuge 
alternatives.
    (11) A summary of the construction methods for 15 psi stoppings 
constructed prior to an event.

[[Page 80698]]

    (12) A summary of the procedures related to refuge alternative use.
* * * * *

0
13. Amend Sec.  75.1504 by revising paragraphs (b)(3)(ii), (b)(4)(ii), 
and (c), and adding paragraphs (b)(6), (b)(7), (b)(8), and (b)(9) to 
read as follows:


Sec.  75.1504  Mine emergency evacuation training and drills.

* * * * *
    (b) * * *
    (3) * * *
    (ii) Physically locates and practices using the continuous 
directional lifelines or equivalent devices and tethers, and physically 
locates the stored SCSRs and refuge alternatives;
* * * * *
    (4) * * *
    (ii) Locating escapeways, exits, routes of travel to the surface, 
abandoned areas, and refuge alternatives.
* * * * *
    (6) Reviewing the procedures for deploying refuge alternatives and 
components.
    (7) For miners who will be constructing the 15 psi stoppings prior 
to an event, reviewing the procedures for constructing them.
    (8) Reviewing the procedures for use of the refuge alternatives and 
components.
    (9) Task training in proper transportation of the refuge 
alternatives and components.
    (c) Annual expectations training. Over the course of each year, 
each miner shall participate in expectations training that includes the 
following:
    (1) Donning and transferring SCSRs in smoke, simulated smoke, or an 
equivalent environment.
    (2) Breathing through a realistic SCSR training unit that provides 
the sensation of SCSR airflow resistance and heat.
    (3) Deployment and use of refuge alternatives similar to those in 
use at the mine, including--
    (i) Deployment and operation of component systems; and
    (ii) Instruction on when to use refuge alternatives during a mine 
emergency, emphasizing that it is the last resort when escape is 
impossible.
    (4) A miner shall participate in expectations training within one 
quarter of being employed at the mine.
* * * * *

0
14. Amend Sec.  75.1505 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  75.1505  Escapeway maps.

    (a) Content and accessibility. An escapeway map shall show the 
designated escapeways from the working sections or the miners' work 
stations to the surface or the exits at the bottom of the shaft or 
slope, refuge alternatives, and SCSR storage locations. The escapeway 
map shall be posted or readily accessible for all miners--
    (1) In each working section;
    (2) In each area where mechanized mining equipment is being 
installed or removed;
    (3) At the refuge alternative; and
    (4) At a surface location of the mine where miners congregate, such 
as at the mine bulletin board, bathhouse, or waiting room.
    (b) Keeping maps current. All maps shall be kept up-to-date and any 
change in route of travel, location of doors, location of refuge 
alternatives, or direction of airflow shall be shown on the maps by the 
end of the shift on which the change is made.
* * * * *

0
15. Add Sec.  75.1506 to subpart P of this part to read as follows:


Sec.  75.1506  Refuge alternatives.

    (a) Each operator shall provide refuge alternatives and components 
as follows:
    (1) Prefabricated self-contained units, including the structural, 
breathable air, air monitoring, and harmful gas removal components of 
the unit, shall be approved under 30 CFR part 7; and
    (2) The structural components of units consisting of 15 psi 
stoppings constructed prior to an event shall be approved by the 
District Manager, and the breathable air, air monitoring, and harmful 
gas removal components of these units shall be approved under 30 CFR 
part 7.
    (3) Prefabricated refuge alternative structures that states have 
approved and those that MSHA has accepted in approved Emergency 
Response Plans (ERPs) that are in service prior to March 2, 2009 are 
permitted until December 31, 2018, or until replaced, whichever comes 
first. Breathable air, air-monitoring, and harmful gas removal 
components of either a prefabricated self-contained unit or a unit 
consisting of 15 psi stoppings constructed prior to an event in a 
secure space and an isolated atmosphere that states have approved and 
those that MSHA has accepted in approved ERPs that are in use prior to 
March 2, 2009 are permitted until December 31, 2013, or until replaced, 
whichever comes first. Refuge alternatives consisting of materials pre-
positioned for miners to deploy in a secure space with an isolated 
atmosphere that MSHA has accepted in approved ERPs that are in use 
prior to March 2, 2009 are permitted until December 31, 2010, or until 
replaced, whichever comes first.
    (b) Except as permitted under paragraph (a)(3) of this section, 
each operator shall provide refuge alternatives with sufficient 
capacity to accommodate all persons working underground.
    (1) Refuge alternatives shall provide at least 15 square feet of 
floor space per person and 30 to 60 cubic feet of volume per person 
according to the following chart. The airlock can be included in the 
space and volume if waste is disposed outside the refuge alternative.

------------------------------------------------------------------------
                                             Unrestricted volume (cubic
          Mining height (inches)                  feet) per person*
------------------------------------------------------------------------
36 or less................................   30
>36-<=42..................................   37.5
>42-<=48..................................   45
>48-<=54..................................   52.5
>54.......................................   60
------------------------------------------------------------------------
* Includes an adjustment of 12 inches for clearances.

    (2) Refuge alternatives for working sections shall accommodate the 
maximum number of persons that can be expected on or near the section 
at any time.
    (3) Each refuge alternative for outby areas shall accommodate 
persons reasonably expected to use it.
    (c) Refuge alternatives shall be provided at the following 
locations:
    (1) Within 1,000 feet from the nearest working face and from 
locations where mechanized mining equipment is being installed or 
removed except that for underground anthracite coal mines that have no 
electrical face equipment, refuge alternatives shall be provided if the 
nearest working face is greater than 2,000 feet from the surface.
    (2) Spaced within one-hour travel distances in outby areas where 
persons work such that persons in outby areas are never more than a 30-
minute travel distance from a refuge alternative or safe exit. However, 
the operator may request and the District Manager may approve a 
different location in the ERP. The operator's request shall be based on 
an assessment of the risk to persons in outby areas, considering the 
following factors: proximity to seals; proximity to potential fire or 
ignition sources; conditions in the outby areas; location of stored 
SCSRs; and proximity to the most direct, safe, and practical route to 
an intake escapeway.
    (d) Roof and rib support for refuge alternative locations shall be 
specified in the mine's roof control plan.
    (e) The operator shall protect the refuge alternative and contents 
from damage during transportation, installation, and storage.
    (f) A refuge alternative shall be removed from service if 
examination

[[Page 80699]]

reveals damage that interferes with the functioning of the refuge 
alternative or any component.
    (1) If a refuge alternative is removed from service, the operator 
shall withdraw all persons from the area serviced by the refuge 
alternative, except those persons referred to in Sec.  104(c) of the 
Mine Act.
    (2) Refuge alternative components removed from service shall be 
replaced or be repaired for return to service in accordance with the 
manufacturer's specifications.
    (g) At all times, the site and area around the refuge alternative 
shall be kept clear of machinery, materials, and obstructions that 
could interfere with the deployment or use of the refuge alternative.
    (h) Each refuge alternative shall be conspicuously identified with 
a sign or marker as follows:
    (1) A sign or marker made of a reflective material with the word 
``REFUGE'' shall be posted conspicuously at each refuge alternative.
    (2) Directional signs made of a reflective material shall be posted 
leading to each refuge alternative location.
    (i) During use of the refuge alternative, the atmosphere within the 
refuge alternative shall be monitored. Changes or adjustments shall be 
made to reduce the concentration of methane to less than 1 percent; to 
reduce the concentration of carbon dioxide to 1 percent or less and 
excursions not exceeding 2.5 percent; and to reduce the concentration 
of carbon monoxide to 25 ppm or less. Oxygen shall be maintained at 
18.5 to 23 percent.
    (j) Refuge alternatives shall contain a fire extinguisher that--
    (1) Meets the requirements for portable fire extinguishers used in 
underground coal mines under this part;
    (2) Is appropriate for extinguishing fires involving the chemicals 
used for harmful gas removal; and
    (3) Uses a low-toxicity extinguishing agent that does not produce a 
hazardous by-product when activated.

0
16. Add Sec.  75.1507 to subpart P of this part to read as follows:


Sec.  75.1507  Emergency Response Plan; refuge alternatives.

    (a) The Emergency Response Plan (ERP) shall include the following 
for each refuge alternative and component:
    (1) The types of refuge alternatives used in the mine, i.e., a 
prefabricated self-contained unit or a unit consisting of 15 psi 
stoppings constructed prior to an event in a secure space and an 
isolated atmosphere.
    (2) Procedures or methods for maintaining approved refuge 
alternatives and components.
    (3) The rated capacity of each refuge alternative, the number of 
persons expected to use each refuge alternative, and the duration of 
breathable air provided per person by the approved breathable air 
component of each refuge alternative.
    (4) The methods for providing breathable air with sufficient detail 
of the component's capability to provide breathable air over the 
duration stated in the approval.
    (5) The methods for providing ready backup oxygen controls and 
regulators.
    (6) The methods for providing an airlock and for providing 
breathable air in the airlock, except where adequate positive pressure 
is maintained.
    (7) The methods for providing sanitation facilities.
    (8) The methods for harmful gas removal, if necessary.
    (9) The methods for monitoring gas concentrations, including 
charging and calibration of equipment.
    (10) The method for providing lighting sufficient for persons to 
perform tasks.
    (11) Suitable locations for the refuge alternatives and an 
affirmative statement that the locations are--
    (i) Not within direct line of sight of the working face; and
    (ii) Where feasible, not placed in areas directly across from, nor 
closer than 500 feet radially from, belt drives, take-ups, transfer 
points, air compressors, explosive magazines, seals, entrances to 
abandoned areas, and fuel, oil, or other flammable or combustible 
material storage. However, the operator may request and the District 
Manager may approve an alternative location in the ERP if mining 
involves two-entry systems or yield pillars in a longwall that would 
prohibit locating the refuge alternative out of direct line of sight of 
the working face.
    (12) The maximum mine air temperature at each of the locations 
where refuge alternatives are to be placed.
    (b) For a refuge alternative consisting of 15 psi stoppings 
constructed prior to an event in a secure space and an isolated 
atmosphere, the ERP shall specify that--
    (1) The breathable air components shall be approved by MSHA; and
    (2) The refuge alternative can withstand exposure to a flash fire 
of 300 degrees Fahrenheit ([deg]F) for 3 seconds and a pressure wave of 
15 pounds per square inch (psi) overpressure for 0.2 seconds.
    (c) If the refuge alternative sustains persons for only 48 hours, 
the ERP shall detail advanced arrangements that have been made to 
assure that persons who cannot be rescued within 48 hours will receive 
additional supplies to sustain them until rescue. Advance arrangements 
shall include the following:
    (1) Pre-surveyed areas for refuge alternatives with closure errors 
of less than 20,000:1.
    (2) An analysis to demonstrate that the surface terrain, the 
strata, the capabilities of the drill rig, and all other factors that 
could affect drilling are such that a hole sufficient to provide 
required supplies and materials reliably can be promptly drilled within 
48 hours of an accident at a mine.
    (3) Permissions to cross properties, build roads, and construct 
drill sites.
    (4) Arrangement with a drilling contractor or other supplier of 
drilling services to provide a suitable drilling rig, personnel and 
support so that a hole can be completed to the refuge alternative 
within 48 hours.
    (5) Capability to promptly transport a drill rig to a pre-surveyed 
location such that a drilled hole would be completed and located near a 
refuge alternative structure within 48 hours of an accident at a mine.
    (6) The specifications of pipes, air lines, and approved fans or 
approved compressors that will be used.
    (7) A method for assuring that within 48 hours, breathable air 
shall be provided.
    (8) A method for assuring the immediate availability of a backup 
source for supplying breathable air and a backup power source for 
surface installations.
    (d) The ERP shall specify that the refuge alternative is stocked 
with the following:
    (1) A minimum of 2,000 calories of food and 2.25 quarts of potable 
water per person per day in approved containers sufficient to sustain 
the maximum number of persons reasonably expected to use the refuge 
alternative for at least 96 hours, or for 48 hours if advance 
arrangements are made under paragraph (c) of this section;
    (2) A manual that contains sufficient detail for each refuge 
alternative or component addressing in-mine transportation, operation, 
and maintenance of the unit;
    (3) Sufficient quantities of materials and tools to repair 
components; and
    (4) First aid supplies.

0
17. Add Sec.  75.1508 to subpart P of this part to read as follows:

[[Page 80700]]

Sec.  75.1508  Training and records for examination, maintenance and 
repair of refuge alternatives and components.

    (a) Persons examining, maintaining, or repairing refuge 
alternatives and components shall be instructed in how to perform this 
work.
    (1) The operator shall assure that all persons assigned to examine, 
maintain, and repair refuge alternatives and components are trained.
    (2) The mine operator shall certify, by signature and date, the 
training of persons who examine, maintain, and repair refuge 
alternatives and components.
    (b) At the completion of each repair, the person conducting the 
maintenance or repair shall make a record of all corrective action 
taken.
    (c) Training certifications and repair records shall be kept at the 
mine for one year.

0
18. Add Sec.  75.1600-3 to subpart Q of this part to read as follows:


Sec.  75.1600-3  Communications facilities; refuge alternatives.

    (a) Refuge alternatives shall be provided with a communications 
system that consists of--
    (1) A two-way communication facility that is a part of the mine 
communication system, which can be used from inside the refuge 
alternative; and
    (2) An additional communication system and other requirements as 
defined in the communications portion of the operator's approved 
Emergency Response Plan.

[FR Doc. E8-30669 Filed 12-30-08; 8:45 am]
BILLING CODE 4510-43-P