Titles of Regulations: 4VAC25-20. Board of Coal Mining Examiners Certification Requirements (amending 4VAC25-20-15, 4VAC25-20-50, 4VAC25-20-70, 4VAC25-20-180, 4VAC25-20-340 through 4VAC25-20-400; adding 4VAC25-20-185).

4VAC25-35. Certification Requirements for Mineral Miners (amending 4VAC25-35-110).

Statutory Authority: §§ 45.1-161.28 and 45.1-161.34 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 4, 2017.

Effective Date: October 19, 2017.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.

Basis: Section 45.1-161.28 of the Code of Virginia grants authority to the Board of Coal Mining Examiners to regulate the certification of persons who work in coal mines in the Commonwealth.

Purpose: The purpose of the regulatory action is to better protect the health, safety, and welfare of the citizens of the Commonwealth by modifying or eliminating obsolete language in the regulations. Doing so will allow the department to inspect its permitted sites more safely and efficiently.

Rationale for Using Fast-Track Rulemaking Process: This action will be noncontroversial because it is clarifying regulations and does not create additional regulatory burdens on individuals or businesses.

Substance: The substantive changes to the regulations are the modification of language for clarity or the removal of obsolete language. Obsolete language is removed to keep the regulation up to date. Language has been added to illustrate the distinction between surface mine foremen and inspectors and underground mine foremen and inspectors. Finally, language is added to allow individuals carrying a valid coal surface mine inspector certification to receive a certification to inspect mineral mines.

Issues: The advantages to the Commonwealth and the public are increased safety and efficiency at the permitted mine sites. There are no known disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Coal Mining Examiners (Board) proposes to separate the Mine Inspector designation into Underground Mine Inspector and Surface Mine Inspector. Additionally, the Board proposes to amend language for improved clarity and to remove obsolete text.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Mine inspectors are employed by the Department of Mines, Minerals and Energy (DMME). The current regulation specifies the requirements to become a certified (coal) Mine Inspector in section 4VAC25-20-180, titled Mine Inspector. The Board proposes to change the title of section 4VAC25-20-180 to Underground Mine Inspector, and create a new section 4VAC25-20-185 titled Surface Mine Inspector. There are already separate sections and requirements for Underground Mine Foreman certification and Surface Mine Foreman certification.

The proposed new Surface Mine Inspector certification section specifies that "Applicants who already possess a valid underground mine inspector certification pursuant to 4VAC25-180 shall be deemed to have met the requirements of this section." Thus current certified Mine Inspectors and future certified Underground Mine Inspectors would be certified for inspecting both surface mines and underground mines under the existing and unchanging requirements. Individuals who become certified as Surface Mine Inspectors by completing the requirements listed in the proposed section 4VAC25-20-185 would not be certified to inspect underground mines unless they also satisfied the requirements in the Underground Mine Inspector certification section.

The requirements under the proposed new Surface Mine Inspector certification section differ from the existing Mine Inspector and proposed Underground Mine Inspector certification sections by requiring that applicants: 1) hold a valid Surface Mine Foreman Certificate rather than a valid Underground Mine Foreman Certificate, and 2) meet the continuing education requirements for surface mine foreman rather than underground mine foreman, and 3) pass the surface mine inspector examination rather than the underground mine inspector examination. According to DMME, the Surface Mine Inspector certification requirements are easier to meet than the Underground Mine Inspector certification requirements as there are specific dangers associated with underground mines that are not present on the surface. Thus introducing the new proposed Surface Mine Inspector certification would be beneficial in that individuals who are qualified for such certification and would only be doing surface inspection would not need to spend the time and effort obtaining additional training for underground safety issues that would not be applicable to their work.

Businesses and Entities Affected. The proposed amendments affect DMME and coal mine inspectors. All coal mine inspectors are employed by DMME.

Localities Particularly Affected. Coal is only mined in counties in far Southwest Virginia (Russell, Lee, Scott, Wise, Tazewell, Dickenson and Buchanan).

Projected Impact on Employment. The proposed amendments would be unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments are unlikely to affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments clarify distinctions between underground mine certifications and surface mine certifications and remove or modify obsolete language.

Part I
General and Specific Requirements for Certification

4VAC25-20-15. Definitions.

A. This chapter works with the Virginia Mine Safety Act, Title 45.1 of the Code of Virginia. Refer to § 45.1-161.8 for other definitions related to this chapter.

B. The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise:

"Appropriately related work experience" means work experience which demonstrates the applicant's skill and level of responsibility in performing tasks, and prepares and equips him to perform in the capacity of a certified person.

"BCME" means Board of Coal Mining Examiners.

"Chief" means the Chief of the Division of Mines.

"DMME" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines.

"DMLR" means Division of Mined Land Reclamation.

"EMT" means emergency medical technician.

"GCM" means general coal miner.

"MSHA" means the Mine Safety and Health Administration.

"Virginia coal mine safety regulations" mean 4VAC25-50-10 et seq. means 4VAC25-60 through 4VAC25-120-10 et seq. 4VAC25-125.

"Virginia Mine Safety Act" means Chapters 14.2 (§ 45.1-161.7 et seq.) through 14.6 (§ 45.1-161.304 et seq.) and Chapter 18 (§ 45.1-221 et seq.) of Title 45.1 of the Code of Virginia.

Part II
Certification Requirements

4VAC25-20-50. First class Underground mine foreman.

A. Applicants shall possess five years mining experience, three of which shall be underground, and shall pass the first class underground mine foreman, map, and gas detection examinations.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college or two years credit for a degree in mining technology.

C. Applicants shall be at least 23 years of age.

D. Beginning August 20, 1997, certified Certified mine foremen shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

E. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete a first class an underground mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

F. The first class underground mine foreman shall complete at least four hours of continuing education every two years.

G. The content of the continuing education course shall include, but is not limited to, the:

1. Coal Mine Safety Act, Chapter 14.2 (§ 45.1-161.7 et seq.) of Title 45.1 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of first class underground mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia underground coal mines.

H. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

I. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

J. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-70. Surface mine foreman.

A. Applicants shall possess five years of surface coal mining experience.

B. Applicants shall pass the surface mine foreman, first aid, and gas detection examinations.

C. Beginning August 20, 1997, certified Certified persons shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

D. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete a surface mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

E. The surface mine foreman shall complete at least four hours of continuing education every two years.

F. The content of the continuing education course shall include, but is not limited to, the:

1. Coal Mine Safety Act, Chapter 14.2 (§ 45.1-161.7 et seq.) of Title 45.1 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of surface mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia surface coal mines.

G. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

H. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

I. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-180. Mine Underground mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid First Class Underground Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-50 for first class underground mine foreman.

E. Applicants shall pass the underground mine inspector examination.

F. A certificate will not be issued until an applicant is employed by the DMME and shall only remain valid while the person is employed by the department.

4VAC25-20-185. Surface mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Surface Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-70 for surface mine foreman.

E. Applicants shall pass the surface mine inspector examination.

F. A certificate will not be issued until an applicant is employed by DMME and shall only remain valid while the person is employed by the department.

G. Applicants who already possess a valid underground mine inspector certification pursuant to 4VAC25-20-180 shall be deemed to have met the requirements of this section.

Part IV
On-Site Examination of Underground Mine Foreman

4VAC25-20-340. Examinations.

A. When a an underground mine is issued a closure order or violation related to a hazardous roof or ventilation condition, the underground mine foreman may be examined to determine his knowledge of the roof control plan and ventilation requirements in the area of his responsibility at the mine. The examination shall be conducted on the surface at the mine site on the day the violation or closure order is issued.

B. The chief shall develop a pool of no more than 50 questions addressing the areas listed in subsection D of this section, which shall be approved by the BCME. These questions shall be available on request and should be incorporated as part of continuing education and other training for underground mine foremen.

C. A division inspector shall administer a written examination using 10 questions from the approved pool. The foreman shall answer eight out of 10 questions correctly to demonstrate thorough understanding of the mine's roof or ventilation plans. The inspector shall select questions from the pool which are most relevant to the conditions or practices resulting in the order of closure or violation.

D. The underground mine foreman may refer to roof control, ventilation, bleeder, or other plans available to him when examined at the surface of an underground mine. Any underground mine foreman performing tasks requiring certification or otherwise directing work in ventilation or roof support shall be able to provide the following information:

1. Describe the roof control requirements set out in the mine's roof control plan in the area of the foreman's responsibility.

2. Describe the frequency and methods of any required testing of roof, face and ribs in the area of the foreman's responsibility.

3. Show how the roof control practices in the area of the foreman's responsibility comply with the requirements of the roof control plan.

4. Describe the frequency and contents of any pre-shift, on-shift, and, when applicable, weekly examinations of mine ventilation required in the area of the foreman's responsibility.

5. Describe the requirements for action under the mine's fan stoppage plan in the area of the foreman's responsibility.

6. Describe any requirements for face ventilation controls used in the area of the foreman's responsibility.

7. Describe any requirements under the mine bleeder plan in the area of the foreman's responsibility.

8. Describe the requirements for mine ventilation controls such as regulators, ventilation doors, and other similar controls in the area of the foreman's responsibility.

9. Describe the minimum volume of air required in the area of the foreman's responsibility.

10. Describe the minimum requirements for quality of air (oxygen, carbon dioxide, and methane) in the area of the foreman's responsibility.

11. Describe the procedure to follow in the area of the foreman's responsibility upon an accumulation of methane at:

a. 1.0% or greater not less than 12 inches from the roof, face, ribs, or floor;

b. Greater than 1.0% in a split that ventilates any group of active areas;

c. 1.5% (or 2.0% as applicable) in a split of air returning from areas where coal is being extracted or is capable of being extracted; or

d. 5.0% or greater in any area of the mine.

E. The division inspector completing an examination of a an underground mine foreman under this part shall discuss the results of the exam with the foreman before leaving the mine.

4VAC25-20-350. Actions brought before the BCME.

A. The examination shall be the basis of any enforcement action brought before the board for failure to display a thorough understanding of the roof control plan and ventilation for the area of the mine for which he is responsible.

B. Refusal of the underground mine foreman to submit to examination will constitute just cause to be brought before the board and may result in suspension of certification and revocation of certification by the board.

Part V
Guidelines for On-Site Examination of a an Underground Mine Foreman

4VAC25-20-360. Purpose and scope.

A. Section 45.1-161.35 A of the Code of Virginia provides for on-site examination of a an underground mine foreman by a mine inspector to determine that the foreman has a thorough understanding of the roof control plan and ventilation for the area of the mine for which he is responsible. The procedures followed by the inspector in conducting an on-site examination of a an underground mine foreman must be consistent with requirements in Part IV (4VAC25-20-340 et seq.) of this chapter. This includes the use of questions approved by the board which are administered in accordance with this chapter.

B. The purpose of examining a an underground mine foreman is to measure and evaluate his knowledge and understanding of mine roof control and ventilation for the areas of his responsibility. Mine Underground mine foremen are required to demonstrate this and other elements of mine safety when they become certified to act as mine foremen in the Commonwealth of Virginia.

C. An on-site examination by the mine inspector will only be initiated when there is just cause that the underground mine foreman has failed to maintain safe roof control and ventilation for his area of responsibility at the mine. Just cause for an on-site examination of a an underground mine foreman by a mine inspector must be based on issuance of an order of closure or violation related to a hazardous condition pertaining to roof control or ventilation.

4VAC25-20-370. Determination by the inspector to conduct an on-site examination.

A. An order of closure issued in accordance with § 45.1-161.91 of the Code of Virginia, or notice of violation issued in accordance with § 45.1-161.90 of the Code of Virginia that relate to roof control or ventilation hazards, shall be reviewed at the time it is issued for evidence of underground mine foreman negligence, which could require on-site examination of the mine foreman by the mine inspector. In making the determination whether or not to conduct an on-site examination, the mine inspector must establish the following:

1. The roof or ventilation hazards cited resulted from performing his duties with less than ordinary care. Ordinary care means the use of such care as a reasonably prudent and careful underground mine foreman could use under similar circumstances.

2. The underground mine foreman knew or should have known of the existence of the hazardous condition.

B. When these criteria have been established, the mine inspector will undertake an on-site examination of the underground mine foreman.

4VAC25-20-380. Notification of intent to conduct an on-site examination.

A. The mine inspector will notify the underground mine foreman of an order of closure or notice of violation for a hazardous condition related to roof control or ventilation in the area of the foreman's responsibility. The inspector will let him know that he intends to invoke the provision of the law for an on-site examination of the foreman.

B. The following approach will be taken by the mine inspector in giving notice to the underground mine foreman:

1. The notification will be given by the inspector in private.

2. The inspector will be courteous and professional in explaining the reason for the on-site examination.

3. The inspector will explain the procedures he will follow in conducting the on-site examination.

4VAC25-20-390. Procedures for conducting on-site examination.

A. The on-site examination of the underground mine foreman will be handled in such a way as to not prevent the foreman from performing his duties. The on-site examination must be conducted, to the extent possible, immediately on arrival outside on the surface on the day the order of closure or notice of violation is issued.

B. These procedures will be followed in conducting the on-site examination:

1. The examination will be administered in a written format.

2. The mine inspector will choose the 10 questions from the approved pool related to the condition or practice being cited by the order of closure or notice of violation.

3. The underground mine foreman will be provided sufficient time to write out his answers to the questions. He may refer to plans or other information available to him. However, no other person may assist him in answering the questions. The mine inspector will remain with the mine foreman during the written examination.

4. The mine inspector will read the questions being asked to the underground mine foreman if requested and should answer any questions from the mine foreman which could help to clarify his understanding of the questions.

5. The underground mine foreman may respond to the questions orally. In this case, the mine inspector will record the response of the mine foreman to each question on the examination form, have the foreman sign the form as accurately representing the response, and provide the mine foreman a copy promptly upon completion.

4VAC25-20-400. Results of the on-site examination.

A. The mine inspector will promptly check the responses given by the underground mine foreman for each of the 10 questions asked. At least eight of the 10 questions must be answered correctly to successfully complete the on-site examination. The results of the on-site examination will be reviewed promptly with the underground mine foreman. A copy of the written on-site examination competed by the underground mine foreman will be provided to him promptly by the mine inspector.

B. The circumstances related to the on-site examination of the underground mine foreman, including pass or fail results, will be described in the inspector's report, and will be reviewed as part of the closeout of the scheduled inspection activity for the mine.

C. The chief will notify the underground mine foreman and mine operator in writing of the petition to the BCME for a formal hearing. Should a petition for a hearing be requested, the hearing would be conducted in accordance with Part VI (4VAC25-20-410 et seq.) of this chapter.

D. If a an underground mine foreman successfully appeals a violation which resulted in an on-site evaluation and further establishes to the BCME that he had a thorough knowledge of such plans, then the failure of the on-site examination shall not be used in any other revocation against the foreman.

4VAC25-35-110. Mine Mineral mine inspector.

In addition to the requirements set forth in § 45.1-161.292:11 of the Code of Virginia, mine inspector applicants shall demonstrate knowledge and competence in those areas specified in § 45.1-161.292:12 of the Code of Virginia through the examination process. A certificate will not be issued until an applicant is employed by the department. Applicants who already possess a valid coal mine inspector certification pursuant to 4VAC25-20-180 or 4VAC25-20-185 shall be deemed to have met the requirements of this section.