Refuge Alternatives for Underground Coal Mines, 80656-80700 [E8-30669]

Agencies

• DEPARTMENT OF LABOR
• Mine Safety and Health Administration

[Federal Register Volume 73, Number 251 (Wednesday, December 31, 2008)]
[Rules and Regulations]
[Pages 80656-80700]
From the Federal Register Online via the Government Printing 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 
silvey.patricia@dol.gov (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.

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    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

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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 ap