Petition - Docket No. M-2016-028-C

In the matter of:                                                                                   Petition for Modification
River View Coal, L.L.C.
River View Mine
I.D. No. 15-19374                                                                               Docket No. M-2016-028-C

PROPOSED DECISION AND ORDER

On September 29, 2016, River View Coal, L.L.C. filed a petition seeking a modification of the application of 30 C.F.R. § 75.500(d) to Petitioner's River View Mine in Union County, Kentucky.

The petitioned standard, 30 C.F.R. § 75.500(d) states, in relevant part,

(d) All other electric face equipment which is taken into or used inby the last open crosscut of any coal mine ....... shall be permissible.

Petitioner is requesting a modification of the standard to allow the use of certain nonpermissible electronic testing or diagnostic equipment inby the last open crosscut with additional safeguards including the following: cessation of coal production during use, continuous methane monitoring before and during equipment use, a prohibition on using equipment when methane is at or above 1 %, training with respect to safe use, hazards and limitations associated with the use of the equipment. The petitioner contends that this alternative method will at all times guarantee no less than the same measure of protection afforded by the standard.

MSHA investigators conducted an investigation into the merits of the petition and filed a report of their findings with the Administrator for Coal Mine Safety and Health. After careful review of the entire record, including the petition and MSHA's investigative report this Proposed Decision and Order is issued.

Finding of Fact and Conclusion of Law

MSHA investigators conducted an investigation of River View Coal, LL.C's River View Mine on October 13, 2016.

River View Coal, L.L.C. is the operator of the River View Mine, MSHA ID No. 15-19374, which is located at 35 State Route 1179, Waverly, Kentucky, 42462. River View Mine is located 3.1 miles northeast of Uniontown, 0.8 miles northeast from Kentucky S.R. 1179 junction with Kentucky S.R. 141 in Union County, Kentucky. The mine operates in two coal seams, the Kentucky #9 and the Kentucky #11 seams. They are separated by approximately 110 feet of competent inter-burden with the #9 seam being the lowest seam. The mine is accessed by one slope, one intake shaft, one return shaft and one intake/return dual compartment shaft. The slope is 16 degrees, 1625 feet in length, dual compartment, with the upper compartment containing the slope belt, and the lower compartment containing the track entry used for lowering heavy equipment. The mine has 8 Mechanized Mining Units, 16 MMU's and 597 underground employee miners.

Coal is mine from the face onto battery ram cars and shuttle cars, dumped onto conveyor belts, and then transported to the surface.
The mine averages daily production tonnage is 56,400 tons. The mine is ventilated by two fans operating in the exhaust mode. The fans are producing approximately, 1,009,030 cubic feet of air. The mine was liberating zero cubic feet of methane in twenty four hours on August 9, 2016.

The granting of this petition would affect all underground miners.

The testing and diagnostic equipment requested to be used includes laptop computers, oscilloscopes, vibration analysis machines, cable fault detectors, point temperature probes, infrared temperature devices, insulation testers (meggers), voltage, current, resistance meters, power testers, electronic tachometers, signal analyzer devices and ultrasonic measuring devices. The petitioner also requested other testing and diagnostic equipment to be used if approved in advance by MSHA's District Manager. The petitioner may use more than one piece of this equipment at a time when performing testing and diagnostic tasks. The petitioner's request describes the subject equipment in general terms, such as type and functionality, but does not include the equipment make, model, certification, intended use, or equipment rating according to hazardous locations.

MSHA already has approved some of the above-listed equipment as permissible. MSHA's Approval and Certification Center List of Approved Products contains permissible electronic testing and diagnostic equipment, including some of the equipment the petitioner has requested to use. For example, the petitioner requested to use vibration analysis machines, point temperature and infrared temperature devices, and voltage, current and resistance meters, which currently are on the list of approved products. This Proposed Decision and Order excludes already-approved equipment.

Other equipment that the petitioner requested to use is not MSHA-approved as permissible. MSHA notes that National Institute of Occupational Safety and Health

(NIOSH) researchers have conducted studies on intrinsically safe (IS) equipment and believe that that International Electrotechnical Commission (IEC) document 60079-11, or the American National Standards Institute (ANSI)/International Society (ISA) document 60079-11 for two-fault equipment (marked as ia), would provide an equivalent level of safety as MSHA-approved equipment. 1 MSHA does not consider all equipment that meets the 60079-11 standard as equivalent to MSHA approval at this time. However, MSHA also recognizes that use of equipment meeting the 60079-11 standard for two-fault equipment (and even, to a lesser extent, equipment meeting onefault (marked as ib) or no-fault (marked as ic) standards) provides a level of safety that is not provided by equipment that does not meet the IEC/ ANSI/ISA standards.

The safety purpose of 30 C.F.R. § 75.500(d) is to ensure that electric equipment will not cause a mine ignition, fire, or explosion when such equipment is taken into or used inby the last open crosscut of any coal mine. Similarly, the petitioner's alternative proposal seeks to ensure that, when used, non-permissible testing and diagnostic equipment will not introduce an ignition, fire, or explosion hazard by limiting such use to situations in which, methane levels are at or below 1 %, increased equipment checks, methane monitoring, and training. However, while these conditions would mitigate the risks of a mine ignition, fire, or explosion when such equipment is taken into or used inby the last open crosscut, MSHA has determined that additional conditions and clarifications are necessary to achieve the same measure of protection as using permissible testing and diagnostic equipment, including specifications for the use of lithium batteries, using equipment that meets IEC/ ANSI/ISA standards, retiring older equipment, and more prescriptive checking, recordkeeping, training requirements by limiting such use to situations in which coal production has ceased during use and that no float coal dust be in suspension.

MSHA interviewed miners and mine management as part of its investigation. Miners did not raise safety concerns related to the use of this equipment and they had no objections to the petition as written and requested by management. Mine management interviewed stated the petition will provide no less than the same measure of safety at the mine. The petition has been posted on the mine bulletin board. There are no Representative of Miners at the mine and miners are not represented by a labor organization.


1 Calder et. al., An Evaluation of the Relative Safety of U.S. Mining Explosion-Protected Equipment Approval Requirements versus those of International Standards, in PROC. SME, ANNU. MEETING, DENVER, COLORADO, USA (February, 2017), also found at: https://www.cdc.gov/niosh/mining(conten t/electrical/explos ionp rotectionresearch.htm l; and
Homce, Gerald; Waynert , Joseph; Yenchek , Michael; Matetic, R.J. ; A Comparison of U.S. Mining Industry Criteria for
Intrinsically Safe Apparatus to Similar IA EC-Based Standards, CENTERS FOR DISEASE CONTROL (CDC), NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (NIOSH)(December, 2016) also found at:
httJ)s://www.cdc .gov/niosh/min ing(content/compariso nofminin gcriteria.html.


MSHA finds that the alternate method proposed by the Petitioner (and as amended herein by MSHA) will at all times guarantee no less than the same measure of protection afforded the miners under 30 C.F.R. § 75.500(d).

ORDER

Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Coal Mine Safety and Health and pursuant to Section 101 (c) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 811 (c), it is ordered that River View Coal, LL.C's Petition for Modification of the application of 30C.F.R. § 75.500(d) in the River View Mine is hereby:

GRANTED, for low-voltage or battery-powered non-permissible electronic testing and diagnostic equipment taken into or used inby the last open crosscut (subject area), conditioned upon compliance with the following terms and conditions:

1. This equipment shall be used only: (1) until MSHA-approved permissible electronic testing and diagnostic equipment is available; (2) if mechanical equipment is not commercially available that can perform the work; or (3) when the mining equipment being tested cannot be towed or moved under its own power to intake air, out of the subject area. The equipment allowed under this Order (low voltage or battery-powered non-permissible electronic testing and diagnostic equipment) shall be limited to: laptop computers; oscilloscopes; insulation testers (meggers); signal analyzer devices; ultrasonic measuring devices; electronic component testers; and electronic tachometers for testing or troubleshooting mining equipment. Where commercially available, the operator must use equipment that meets IEC 60079-11 or the ANSI/UL 60079-11 for two-fault IS (marked ia), one-fault IS (marked ib), or no-fault IS (marked ic) in that order of preference. The equipment must have an IP 66 rating or higher when available. When an IP 66 rating is not available, the highest IP rating available must be used. When equipment contains lithium batteries, the equipment must meet lithium battery safety standard UL1642 or IEC 62133. All other equipment in the subject area must be permissible.

2. A record for this equipment shall be maintained on mine property either in a secure book or electronically in a secure computer system not susceptible to alteration. The record will contain the date of manufacture and/ or purchase of each particular piece of electronic testing and diagnostic equipment and include proof of compliance with any lithium battery safety standard. The original equipment manufacturers' user and maintenance manuals also shall be maintained on mine property. The record and manuals shall be made available to Authorized Representatives of the Secretary and miners at the mine.

3. The equipment to be used in the subject area shall be examined by a qualified person, as set forth in 30 C.F.R. § 75.153, prior to taking the equipment underground to ensure the equipment is being maintained in a safe operating condition. At a minimum, the qualified person conducting the exam shall:

i. Check the instrument for any physical damage and the integrity of the case;
ii. Remove the battery and inspect for corrosion;
iii. Inspect the contact points to ensure a secure connection to the battery;
iv. Reinsert the battery and power up and shut down to ensure proper connections;
v. Check the battery compartment cover or battery attachment to ensure that it is securely fastened; and
vi. For equipment utilizing lithium type cells, ensure the lithium cells and/ or pack are not damaged or swelled in size.

The results of these examinations shall be recorded.

4. The equipment shall be examined at least weekly by a qualified person as required by 30 C.F.R. § 75.512-2; examination results shall be recorded weekly in the equipment's record. Examination entries in the record may be expunged after one year.

5. The equipment shall be serviced according to the manufacturers' recommendations. Dates of service shall be recorded and include a description of the work performed.

6. The equipment shall not be put into service until MSHA has initially inspected the equipment and determined it is in compliance with all the terms and conditions of this Order.

7. The equipment shall not be used if methane is detected in concentrations at or above 1.0 percent methane. When 1.0 percent or more of methane is detected while the equipment is being used, the equipment shall be de-energized immediately and withdrawn out of the subject area to fresh air. Batteries shall not be removed to deenergize equipment because removing the battery exposes battery contacts to accidental short-circuiting. All requirements of 30 C.F.R. § 75.323 must be met before returning to the equipment to the subject area.

8. For additional safety, prior to taking the equipment to the subject area or energizing the equipment in the subject area, a certified person (as set forth by 30 C.F.R.§ 75.100) shall conduct a visual examination of the location where the equipment will be used for: 1) evidence that the subject area appears to be sufficiently rock-dusted and; 2) the presence of accumulated combustible material including float coal dust in suspension. If the rock-dusting appears insufficient, or the presence of float coal dust is observed in suspension, the equipment may not be energized until sufficient rock dust has been applied and/ or the accumulations of combustible materials including float coal dust in suspension have been cleaned-up or removed.

9. All hand-held methane detectors shall be MSHA-app roved and maintained in permissible and proper operating condition as set forth by 30 C.F.R. § 75.320. Measurement devices shall be calibrated or bump tested before each shift to verify proper operation. In addition, all methane detectors must provide visual and audible warnings when methane is detected at and above 1.0 percent.

10. Prior to energizing the equipment in the subject area, methane tests must be made at least 12 inches from the roof, face, ribs and floor, as set forth in 30 C.F.R. § 75.323(a).

11. . The subject area must be examined preshift, as set forth by 30 C.F.R. § 75.360, prior to using the equipment. If the area was not examined preshift, a supplemental examination, as set forth by 30 C.F.R. § 75 .361, must be performed before any noncertified person enters the area.

12. Before using the equipment in the subject area, the qualified person must confirm by measurement or by inquiry of the certified person in charge of the section, that the air quantity on the section, for that shift, is at least the minimum quantity required by the mine's approved ventilation plan. Two qualified persons shall continuously monitor for methane immediately before and during the use of the equipment in the subject area. Each qualified person shall have a hand-held methane detector (one person must use a catalytic detector and the other person must use an infrared gas detector) and be strategically positioned in locations with the greatest potential to detect hazardous gas in the area where the equipment is being used. A qualified person shall also remain with the equipment while the equipment is used in the subject area.

13. Batteries contained in the equipment must be "changed out" in intake air, out of the subject area. No work shall be performed on equipment listed in this Proposed Decision and Order while such equipment is in the subject area. Replacement batteries for the equipment shall not be brought in the subject area. On each entry into the mine, all batteries for the equipment must be fully charged and protected (i.e., carried only in the compartment provided for a spare battery in the equipment or the equipment carrying case). Batteries for the equipment listed within this Proposed Decision and Order shall not be charged underground.

The following maintenance and use conditions shall apply to equipment containing lithium-type batteries:

i. The battery pack must not be disassembled or modified by anyone other than permitted by the manufacturer of the equipment.
ii. The battery pack must only be charged using the original equipment manufacturer's recommended charger on the surface of the mine.
iii. The battery must not be exposed to water or allowed to get wet. This does not preclude incidental exposure of sealed battery packs.
iv. The battery must not be placed in direct sunlight or used or stored near a source of heat.
v. The battery must not be used at the end of its life cycle (e.g. when there is a performance decrease of greater than 20% in battery operated equipment). The battery must be disposed of properly.

14. Personnel engaged in the use of the equipment shall be properly qualified, as specified in 30 C.F.R. § 75.153, and trained in accordance with the manufacturers' recommended safe use procedures and trained to recognize hazards associated with the use of the equipment where methane could be present.

15. All qualified persons and miners affected shall receive specific training on the terms and conditions of this Proposed Decision and Order before using the equipment in subject areas. A record of any training on this Proposed Decision and Order shall be maintained and provided upon request by an Authorized Representative of the Secretary.

16. Within 60 days after the Proposed Decision and Order becomes final, the operator shall submit proposed revisions, to its·approved 30 C.F.R. § 75.370 mine ventilation and 30 C.F.R. Part 48 training plan to the Coal Mine Safety and Health District Manager, specifying the initial and annual training needed for the safe operation of this equipment. When training is conducted pursuant to the terms and conditions of this Proposed Decision and Order, an MSHA Certificate of Training (Form 5000-23) shall be completed. A notation shall be included on the Certificate of Training to indicate it is for non-permissible testing equipment training.

17. Within 60 days after this Proposed Decision and Order becomes final, the operator shall submit proposed revisions to its approved mine emergency evacuation and firefighting program of instruction as required by 30 C.F.R. § 75.1502. The operator shall revise the program to include fire and explosion hazards and evacuation procedures when using equipment in subject areas. All underground miners shall be trained on any revisions within 30 days of approval by the Coal Mine Safety and Health District Manager.

18. The equipment used shall be no older than 10 years from date of manufacture or removed at the end of its service life as recommended by the manufacturer, whichever is shorter.

19. The operator is responsible for ensuring that all persons, including contractors, are using the equipment in accordance with this Proposed Decision and Order. The conditions of use in this Proposed Decision and Order shall apply to all non-permissible electronic equipment used in the subject area, regardless of whether the equipment is used by an employee or by an independent contractor.

20. The operator shall post this Proposed Decision and Order in unobstructed locations on mine bulletin boards and/ or in other conspicuous places where notices to miners are ordinarily posted for a period of not less than 60 consecutive days.

21. The subject equipment shall not be used when coal production is occurring on the section. All mining on the section shall cease prior to use of the equipment in the subject area. A positive means of preventing mobile equipment from tramming in the same entry or cross-cut of the affected area shall be provided and addressed in the mine ventilation plan. When troubleshooting and testing can be performed without power, operators must de-energize, lock, and tag-out the circuit on the equipment. Personal protective equipment, such as electrically rated gloves, must be worn when troubleshooting or testing energized low and medium voltage circuits. After determining the electrical problem and before performing electrical work, operators must open the circuit breaker, disconnect, and lock-out and tag-out the visual disconnect device. High voltage circuits must also be grounded.

22. Unless specifically mentioned herein, nothing in this Proposed Decision and Order changes or supersedes the requirements otherwise imposed by the Mine Act, other mandatory standards or regulations, or approved ventilation or other plans.Any party to this action desiring a hearing on this matter must file in accordance with 30 C.F.R. § 44.14 within 30 days. The request for the hearing must be filed with the Administrator for Coal Mine Safety and Health, 201 12th Street South - Suite 401, Arlington, Virginia 22202-5450.

If a hearing is requested, the request shall contain a concise summary of position on the issues of fact or law desired to be raised by the party requesting the hearing, including specific objections to the proposed decision. A party other than the Petitioner who has requested a hearing may also comment upon all issues of fact or law presented in the petition and any party to this action requesting a hearing may indicate a desired hearing site. If no request for a hearing is filed within 30 days after service thereof, the Proposed Decision and Order will become final and must be posted by the operator on the mine bulletin board at the mine.

             s/                    
David L. Weaver,
Acting Deputy Administrator for
Coal Mine Safety and Health

Certificate of Service
I hereby certify that a copy of this proposed decision was served personally or mailed, postage prepaid, or provided by other electronic means this 16th day of April , 2019, to:

Mr. Kevin Vaughn
River View Coal, L.L.C.
835 State Route 1179
Waverly, KY 42462

            /s/                 
Rodney Adamson
Mine Safety and Health Specialist

cc: Franklin J. Reed, Division Director, Division of Mine Safety, 1025 Capital Center Dr., Suite 201, P.O. Box 2244, Frankfort, KY 40601, franklin.reed@kv.gov

bee: District 10
OSRV
R. Adamson
Case File