Underground coal mine operators can use conveyor belts, which do not satisfy the requirements set forth for the approval of flame-resistant conveyor belts (30 C.F.R. Part 14) if the conveyor belts have been warehoused, but are not in active use before December 31, 2009, according to an MSHA guidance document. The guidance document, dated Oct. 7, 2009, defines the term, “placed in service.”
However, a cautionary note: a recent administrative law judge (ALJ) decision ruled against a mine operator that relied on the language of an MSHA guidance document, with the judge stating that MSHA’s document had not gone through the rulemaking procedure, and that the language of MSHA’s guidance went against the plain meaning of the regulation. In addition, the IRS has often interpreted this provision narrowly, requiring full actual operational use, not merely availability for use, of an asset before it is deemed “placed in service.”
The MSHA conveyor belt regulation requires that effective December 31, 2009 conveyor belts placed in service in underground coal mines shall be approved under Part 14, which establishes flame resistance requirements. [This regulation emerged following the Sago Mine disaster and the 2006 Miner Act’s provisions (Section 514) on conveyor belt flammability.] Applications for approval or extensions of approval submitted after December 31, 2008, must meet the requirements of this Part, according to the regulation. If MSHA determines that Part 14 approved belt is not available, the Agency will consider an extension of the effective date, however, these belts are “available.”
According to MSHA, because of the economic downturn, it realizes that operators have received previously-ordered conveyor belts that cannot be approved under Part 14, but that will not be needed for production until after December 30, 2009. Therefore, for purposes of belts (including “specialty belts”) that are not approved under Part 14, MSHA interprets the term “placed in service” before December 31, 2009 (see 30 C.F.R. 75.1108(a)), to mean either that belts
- (a) are installed in an underground coal mine and used to transport coal prior to December 31, 2009, or
- (b) are warehoused at the mine site by October 31, 2009, even though they may not be installed underground and used to transport coal until December 31, 2009, or later.
MSHA stated operators possessing such belts must
- (a) have such belts physically located at the mine site by October 31, 2009, and
- (b) provide the MSHA District Manager for the District in which the mine is located an inventory of all such belts by November 16, 2009.
Such inventories must reference each warehoused belt (a) by the belt-specific tracking/specification number normally impressed on the belt by the belt manufacturer, and usually placed lengthwise near the edge of the belt or across the width of the belt, sometimes near the MSHA acceptance marking, repeating approximately every 30 to 120 feet. Once such belts warehoused on mine property by October 31, 2009, are properly inventoried, reported to, and verified by MSHA, they will be considered “placed in service” before December 31, 2009, and the operators may use those belts at any of their mines until December 30, 2018.
As reported in Mine Safety and Health News. Reproduced with permission.