Petition for Modification of Application of Existing Mandatory Safety Standards

AGENCY:

Mine Safety and Health Administration, Labor.

ACTION:

Notice.

SUMMARY:

This notice is a summary of a petition for modification submitted to the Mine Safety and Health Administration (MSHA) by the party listed below.

DATES:

All comments on the petition must be received by MSHA's Office of Standards, Regulations, and Variances on or before August 19, 2024.

ADDRESSES:

You may submit comments identified by Docket No. MSHA-2024-0009 by any of the following methods:

1. Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments for MSHA-2024-0009.

2. Fax: 202-693-9441.

3. Email: petitioncomments@dol.gov.

4. Regular Mail or Hand Delivery: MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E401, Arlington, Virginia 22202-5452.

Attention: S. Aromie Noe, Director, Office of Standards, Regulations, and Variances. Persons delivering documents are required to check in at the receptionist's desk in Suite 4E401. Individuals may inspect copies of the petition and comments during normal business hours at the address listed above. Before visiting MSHA in person, call 202-693-9455 to make an appointment, in keeping with the Department of Labor's COVID-19 policy. Special health precautions may be required.

FOR FURTHER INFORMATION CONTACT:

S. Aromie Noe, Director, Office of Standards, Regulations, and Variances at 202-693-9440 (voice), Petitionsformodification@dol.gov (email), or 202-693-9441 (fax). [These are not toll-free numbers.]

SUPPLEMENTARY INFORMATION:

Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) and Title 30 of the Code of Federal Regulations (CFR) part 44 govern the application, processing, and disposition of petitions for modification.

I. Background

Section 101(c) of the Mine Act allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:

1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or

2. The application of such standard to such mine will result in a diminution of safety to the miners in such mine.

In addition, sections 44.10 and 44.11 of 30 CFR establish the requirements for filing petitions for modification.

II. Petition for Modification

Docket Number: M-2024-005-C.

Petitioner: Banner Blue Coal Company, 1073 Riverview Street, Grundy, VA 24614.

Mines: Paw Paw 2 South, MSHA ID No. 44-07401, located in Buchanan County, Virginia; Paw Paw 2, MSHA ID No. 15-19842, located in Pike County, Kentucky; and Shop Branch, MSHA ID No. 15-19866, located in Pike County, Kentucky.

Regulation Affected: 30 CFR 75.500(d), Permissible electric equipment.

Modification Request: The petitioner requests a modification of the existing standard, 30 CFR 75.500(d), to allow non-permissible battery-powered surveying equipment to be taken into or used inby the last crosscut of the coal mine.

The petitioner states that:

(a) Both 30 CFR 75.372 and 30 CFR 75.1200 necessitate the use of the most practicable and accurate survey equipment in the preparation of mine maps.

(b) There are currently no manufacturers of non-electric permissible surveying equipment that can provide the accuracy needed for mine mapping.

(c) Only older, used non-electric permissible surveying equipment is available in limited supply.

(d) Older non-electric permissible surveying equipment is difficult to service and calibrate as parts are no longer available.

(e) Accurate surveying and mapping is critical to the health and safety of miners. It ensures the mine is developed as planned around gas wells and under streams or other geologic anomalies. It also provides a record of the area mined in the event of an emergency. The use of older non-electric permissible surveying equipment results in a diminution of safety to miners.

(f) Modern battery-powered non-permissible surveying equipment is much more accurate than older style mechanical instruments.

(g) Several manufacturers and models of modern battery-powered non-permissible surveying equipment are ingress protected for dust and water with IP66 ratings. Intuitively, this sealing offers safety from methane and coal dust.

(h) No manufacturers of modern battery-powered surveying equipment have pursued MSHA approval as permissible for use in or inby the last open crosscut due to the limited demand and use of such a surveying instrument.

The petitioner proposes the following alternative method:

(a) Surveying equipment shall consist of battery-powered non-permissible total stations and theodolites with an ingress protection rating for dust and water resistance at a minimum of IP 66.

(b) The surveying instruments proposed in the petition are the Sokkia Digital Theodolite DT 950 LG/PS and/or the Stonex R1 Plus.

(c) A logbook shall be maintained for the battery-powered non-permissible surveying equipment documenting the manufacturer, model number, and date of manufacture or purchase. The logbook shall be maintained at the mine office with other logbooks. The logbooks shall be made available to MSHA for inspection, upon request.

(d) The battery-powered non-permissible surveying equipment shall be examined by the person operating it prior to taking it underground to ensure the equipment is being maintained in a safe operating condition. The examination shall include:

(1) Checking the instrument for any physical damage and the integrity of the case;

(2) Removing the battery and inspecting it for corrosion;

(3) Inspecting the contact points to ensure a secure connection to the battery;

(4) Reinstalling the battery, powering the instrument up, and shutting it down to ensure proper connections; and

(5) Checking the battery compartment cover or battery attachment to ensure that it is securely fastened.

The results of the examination shall be recorded in the logbook.

(e) At least weekly, the equipment shall be examined by a qualified person as defined in 30 CFR 75.153. The examination results shall be recorded weekly in the equipment's logbook. Examination entries in the logbook may be expunged after one year.

(f) The battery-powered non-permissible surveying equipment shall be serviced in accordance with the manufacturer's recommendations. Dates of service and a description of the service shall be recorded in the logbook.

(g) The battery-powered non-permissible surveying equipment shall not be put in service at the mine until MSHA has inspected the equipment and determined that it is in compliance with all the requirements in this petition.

(h) All areas to be surveyed shall be pre-shifted according to 30 CFR 75.360 prior to surveying. If the area was not pre-shifted, a supplemental examination according to 30 CFR 75.361 shall be performed before any non-certified person enters the area. If the area has been examined according to 30 CFR 75.361, an additional examination is not required.

(i) Prior to energizing any of the non-permissible surveying equipment in or inby the last open crosscut, methane tests shall be conducted in accordance with 30 CFR 75.323(a).

(j) A qualified person as defined in 30 CFR 75.151 shall continuously monitor for methane immediately before and during the use of non-permissible surveying equipment in or inby the last open crosscut. A second person in the surveying crew, if there are two people in the crew, shall also continuously monitor for methane. The second person shall either be a qualified person as defined in 30 CFR 75.151 or be in the process of being trained to be a qualified person but has yet to “make such tests for a period of 6 months” as required by 30 CFR 75.151. Upon completion of the 6-month training period the second person on the surveying crew shall become qualified in order to continue on the surveying crew. If the surveying crew consists of one person, rather than two, the individual shall monitor for methane with two separate devices.

(k) All hand-held methane detectors shall be MSHA approved and maintained in permissible and proper operating condition as defined by 30 CFR 75.320. All methane detectors shall provide visual and audible warnings when methane is detected at or above 1.0 percent.

(l) The battery-powered non-permissible surveying equipment shall not be used if methane concentrations at or above 1.0 percent are detected. When methane concentrations at or above 1.0 percent are detected while the equipment is being used, the equipment shall be de-energized immediately and withdrawn outby the last open crosscut. Prior to being taken into or inby the last open crosscut all the requirements of 30 CFR 75.323 for excess methane shall be complied with.

(m) Personnel engaged in the use of surveying equipment shall be properly trained to recognize the hazards and limitations associated with the use of surveying equipment in areas where methane could be present.

(n) When using battery-powered non-permissible electronic surveying equipment in or inby the last open crosscut, the surveyor shall confirm with the person in charge of the section that the air quantity in the section, on that shift, in the last open crosscut, is at least the minimum quantity that is required by the mine's ventilation plan.

(o) A safety check shall be performed by the surveyor(s), prior to setting up and energizing non-permissible electronic equipment in or inby the last open crosscut of any coal mine. The surveyor(s) shall conduct a visual examination of the immediate area for evidence that the area appears to be sufficiently rock dusted and for the presence of accumulated float coal dust. If the rock-dusting appears insufficient or the presence of accumulated float coal dust is observed, the equipment may not be energized until sufficient rock dust has been applied and/or the accumulations of float coal dust has been cleaned up.

(p) Batteries contained in the surveying equipment shall be “changed out” in the intake air outby the last open crosscut. Replacement batteries for the electronic surveying equipment shall be carried only in the compartment provided for a spare battery in the electronic equipment carrying case. Before each shift of surveying, all batteries for the electronic surveying equipment shall be charged sufficiently such that they are not expected to be replaced on that shift. Lithium ion batteries shall not be charged underground. Lithium ion batteries shall only be charged on the surface area of the underground mine.

(q) All members of the surveying crew using battery-powered non-permissible surveying equipment shall receive specific training on the terms and conditions of this plan prior to using the equipment in or inby the last open crosscut. A record of the training shall be kept with other training records.

(r) Within 60 days after the Proposed Decision and Order (PDO) is granted by MSHA, the operator shall submit proposed revisions for its approved 30 CFR part 48 training plan to the Coal Mine Safety and Health District Manager. The proposed revisions shall specify initial and refresher training regarding the terms and conditions stated in this petition. The training shall be documented on a MSHA Certificate of Training (Form 5000-23). Comments shall be included on the Certificate of Training indicating that surveying training was completed.

(s) Battery-powered non-permissible theodolites (Sokkia DT 950 LG/PS) shall not be taken or used inby the last crosscut of the coal mine after they are five (5) years old. Battery-powered total stations (Stonex R1 Plus) shall not be taken or used inby the last crosscut of the coal mine after they are ten (10) years old. The operator shall maintain a cycle of purchasing new electronic surveying equipment whereby theodolites shall be no older than five years from the date of manufacture and total stations and other electronic surveying equipment shall be no older than 10 years from the date of manufacture.

(t) Any surveying contractors hired by the operator that are using electronic equipment shall do so in accordance with the requirements of section (s). The conditions of use in this petition shall apply to all non-permissible electronic surveying equipment used in or inby the last open crosscut regardless of whether the equipment is used by the operator or by an independent contractor.

(u) Battery-powered non-permissible surveying equipment may be used when production is occurring, subject to these conditions:

(1) On a mechanized mining unit (MMU) where production is occurring, non-permissible electronic surveying equipment shall not be used downwind of the discharge point of any face ventilation controls, such as tubing (including controls such as “baloney skins”) or curtains.

(2) Production may continue while non-permissible electronic surveying equipment is used if the surveying equipment is used in a separate split of air from where production is occurring.

(3) Non-permissible surveying equipment shall not be used in a split of air ventilating an MMU if any ventilation controls will be disrupted during such surveying. Disruption of ventilation controls means any change to the mine's ventilation system that causes the ventilation system not to function in accordance with the mine's approved ventilation plans.

(4) If, while surveying, a surveyor must disrupt ventilation, the surveyor shall cease surveying and communicate to the section foreman that the ventilation must be disrupted. Production must stop while ventilation is disrupted. Ventilation control shall be reestablished immediately after the disruption is no longer necessary. Production can only resume after all ventilation controls are reestablished and are in compliance with approved ventilation or other plans, and other applicable laws, standards, or regulations.

(5) Any disruption in ventilation shall be recorded in the logbook required by the PDO granted by MSHA. The logbook shall include a description of the nature of the disruption, the location of the disruption, the date and time of the disruption, the date and time the surveyor communicated the disruption to the section foreman, the date and time production ceased, the date and time ventilation was reestablished, and the date and time production resumed.

(6) All surveyors, section foreman, section crew members and other personnel who shall be involved with or affected by surveying operations shall receive training in accordance with 30 CFR 48.7 on the requirements of this plan within 60 days of the PDO granted by MSHA. Such training shall be completed before any non-permissible surveying equipment can be used while production is occurring. The operator shall keep a record of such training and provide such record to MSHA, upon request.

(7) The operator shall provide annual retraining to all personnel who will be involved with or affected by surveying operations in accordance with 30 CFR 48.8. The operator shall train new miners on the requirements of this plan in accordance with 30 CFR 48.6. The operator shall keep a record of such training and provide such record to MSHA, upon request.

In support of the proposed surveying equipment, the petitioner submitted specifications for the Sokkia Digital Theodolite DT 950 LG/PS and the Stonex R1 Plus.

The petitioner asserts that the alternative method proposed in the petition will at all times guarantee no less than the same measure of protection afforded by 30 CFR 75.500(d).