Petition - Docket No. M-2018-020-C

In the matter of:                                                                                           Petition for Modification
Signal Peak Energy LLC
Bull Mountains Mine No 1
I.D. No. 24-01950                                                                                       Docket No. M-2018-020-C

PROPOSED DECISION AND ORDER

On November 8, 2018, a petition was filed seeking a modification of the application of 30 Code of Federal
Regulations (30 C.F.R.) § 75.500(d) to Petitioner's Bull Mountains Mine No 1 is located in Musselshell County,
Montana. The Petitioner alleges that the alternative method outlined in the petition will at all times guarantee no
less than the same measure of protection afforded by the standard.

The petitioned standard, 30 Code of Federal Regulations (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 non­ permissible surveying equipment
in or inby the last open crosscut.

MSHA personnel conducted an investigation of the petition and filed a report of their findings with the Administrator
or 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.

Peak Energy LLC's Petition for Modification of the application of 30 C.F.R. § 75.500(d) in the Bull 
Mountains Mine No 1 is hereby:

GRANTED, for the operator who may use the following totalstations and theodolites and similar low 
voltage battery-operated total stations and theodolites if they have an IP rating of 66 or greater 
in or inby the last open crosscut, subject to the conditions of this Order:

1.     Sokkia Electronic Total Station Model SET 350RX-31A
2.     Sokkia Electronic Total Station Model SET 350R
3.     Sokkia Electronic Total Station Model SETS 30 R 6 volts d.c.
4.     Sokkia Electronic Total Station Model SETS 50 RX 6 volts d.c.
5.      Topcon Electronic Total Station Model GTS-225 7.2 volts d.c.
6.     Topcon Electronic Total Station Model GTS-300W 7.2 volts d.c.
7.     Topcon DigitalTheodolite Model DT-270L
8.      Topcon DigitalTheodolite Model DT-209L
9.     Sokkia Electronic Total Station Model SET-300 7.2 volts d.c.
10.    Topcon Electronic Total Station Model GTS-301D 7.2 voltsd.c.
11.    Topcon Electronic Total Station Model GTS-235W

1.         Non-permissible electronic surveying equipment shall only be used until equivalent 
permissible electronic surveying equipment is available. The equipment allowed under this Order is 
low voltage or battery-powered non-permissible total stations and theodolites. All non-permissible 
electronic total stations and theodolites shall have an IP 66 or greater rating. When equipment 
contains lithium batteries, the equipment must meet lithium battery safety standard UL1642 or IEC 
62133.

2.         The operator will maintain a logbook for electronic surveying equipment with the 
equipment, or in the location where mine record books are kept or in the location where the 
surveying record books are kept. The log book will contain the date of manufacture and/ or purchase 
of each particular piece of electronic surveying equipment, and include proof of compliance with 
any lithium battery safety standard. The logbook shall be made available to MSHA upon  request.

3.         All non-permissible electronic surveying equipment to be used in or inby the last open 
crosscut, shall be examined by the person to operate the equipment prior to taking the equipment 
underground to ensure the equipment is being maintained in a safe operating condition. These 
examinations shall include

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; and

v.     Check the battery compartment cover or battery attachment to ensure that it is securely  
fastened.

vi.   For equipment utilizing lithium type cells, ensure that lithium cells and/ or packs are not 
damaged or swelled in size.

The results of this examination will be recorded in the logbook.

4.         The equipment shall be examined at least weekly by a qualified person as defined in 30 
C.F.R. § 75.153; the examination results shall be recorded weekly in the equipment's log book. 
Examination entries in the logbook may be expunged after one year.

5.         The operator is to ensure that all non-permissible electronic surveying equipment is 
serviced according to the manufacturer's recommendations. Dates of service will be recorded in the 
equipment's log book and shall include a description of the work performed.

6.         The non-permissible surveying equipment that will be used in or inby the last open 
crosscut, shall not be put into service until MSHA has initially inspected the equipment and 
determined that it is in compliance with all the terms and conditions of this Order.

7.         Non-permissible surveying 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 non- permissible surveying equipment is being used, the equipment shall be de-energized 
immediately and the non-permissible electronic equipment withdrawn outby the last open crosscut. 
Prior to entering in or inby the last open crosscut all requirements of 30 C.F.R. § 75.323 must be 
complied with.

8.    As an additional safety check, prior to setting up and energizing non- permissible electronic 
surveying equipment in or inby the last open crosscut, the surveyor(s) shall conduct a visual 
examination of the immediate area for evidence that the areas appear 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 
have been cleaned-up. If non-permissible electronic surveying equipment is to be used in an 
unrock-dusted area within 40 feet of a working face where a continuous mining machine is used to 
extract coal, the area is to be rock-dusted prior to energizing the electronic surveying equipment. 
A positive means of preventing mobile equipment from tramming in the same entry or cross-cut where 
surveyors are conducting their work inby the feeder shall be provided and addressed in the Roof 
Control Plan.

9.    All hand-held methane detectors shall be MSHA- approved and maintained in permissible and 
proper operating condition as defined by 30 C.F.R. § 75.320. All methane detectors must provide 
visual and audible warnings when methane is detected at or above 1.0 percent.

10.   Prior to energizing any of the non-permissible surveying equipment in or inby the last open 
crosscut, methane tests must be made in accordance with 30 C.F.R. § 75.323(a).

11.   All areas to be surveyed must be pre-shifted according to 30 C.F.R.
§ 75.360 prior to surveying. If the area was not pre-shifted, a supplemental examination according 
to 30 C.F.R. § 75.361 must be performed before any non-certified person enters the area. If the 
area has beenexamined according to 30 C.F.R. § 75.360 or 30 C.F.R. § 75.361, additional examination 
is not required.

12.   A qualified person as defined in existing 30 C.F.R. § 75.151 shall continuously monitor for 
methane immediately before and during the useof 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, 
must also continuously monitor for methane.  That  person must either be a qualified person as 
defined in 30 C.F.R. § 75.151 or be in the process of being trained to be a qualified person but 
has yet to 11 make such tests for a period of 6 months 11 as required by 30 C.F.R. § 75.150. Upon 
completion of the 6 month training period the second person  on the surveying crew must become qualified 
in order to continue on the surveying crew. If the surveying crew consists of one person, rather than two, such
person shall monitor for methane with two separate devices.

13.   Batteries contained in the surveying equipment must be "changed out" or "charged" in 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 
must be charged sufficiently so that they are not expected to be replaced on thatshift.

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.   When using non-permissible electronic surveying equipment in or inby the last open crosscut, 
the surveyor must confirm by measurement or by inquiry of the person in charge of the section, that 
the air quantity on the section, on that shift, in the last open crosscut is at least the minimum 
quantity that is required by the mine1s  ventilation plan.

15.   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.

16.   All members of the surveying crew shall receive specific training on the terms and conditions 
of this Order before using non-permissible electronic equipment in or inby the last open crosscut. 
A record of the training shall be kept with the other training records.

17.   Within 60 days after this Order becomes final, the operator shall submit proposed revisions 
for its approved 30 C.F.R. § 75.220 roof control plan and 30 CF.R. Part 48 training plan to the 
Coal Mine Safety and Health District Manager. These proposed revisions shall specify additional 
measures to protect surveyors from the hazards of mobile equipment while conducting their work on 
the working section, initial and refresher training regarding the terms and conditions stated in 
this Order. When training is conducted on the terms and conditions in this Order, an MSHA 
Certificate of Training (Form 5000-23) shall be completed. Comments shall be included on the 
Certificate of Training indicating that it was surveyor training.

18.   The operator shall replace or retire from service any electronic surveying instrument that 
was acquired prior to December 31, 2004 within one year of this Order becoming final. The operator 
shall replace or retire from service any electronic surveying instrument that was acquired between 
January 1, 2005 and December 31, 2010 within two years of this Order becoming final. Within three 
years of the date that this Order becomes final, the operator shall replace or retire from service 
any theodolite that was acquired more than five years prior to the date that this Order became 
final or any total station or the other electronic surveying equipment identified in this Order 
acquired more than ten years prior to the date that this Order became final. After five years, the 
operator will maintain a cycle of purchasing new electronic surveying equipment whereby theodolites 
will be no older than five years from date of manufacture and total stations and other electronic 
surveying equipment will be no older than 10 years from date of manufacture.

19.   The operator is responsible for seeing that all surveying contractors hired by the operator 
are using electronic equipment in accordance with the requirements of Condition Number 18 in this 
Order. The conditions of use in this Order 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.

20.   Non-permissible surveying equipment may be used when production is occurring, subject to 
these conditions:

a.   On an 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 11baloney     skins) or curtains.

b.    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.

c.   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 plan.

d.  If, while surveying, a surveyor must disrupt ventilation, the surveyor shall cease surveying 
and communicate to the section foreman that ventilation must be disrupted. Production must stop 
while ventilation is disrupted. Ventilation controls must 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.

e.   Any disruption in ventilation shall be recorded in the logbook required by this Order. 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.

f.  All surveyors, section foremen, section crew members, and other personnel who will be involved 
with or affected by surveying operations shall receive training in accordance with 30 C.F.R. § 48.7 
on the requirements of this Order within 60 days of the date this Order becomes final. Such 
training must be completed before anynon-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.

g.  The operator shall provide annual retraining to all personnel who will be involved with or 
affected by surveying operations in accordance with 30 C.F.R. § 48.8. The operator shall train new 
miners on the requirements of this Order in accordance with 30
C.F.R. § 48.5, and shall train experienced miners, as defined in 30
C.F.R. § 48.6, on the requirements of this Order in accordance with 30 C.F.R. § 48.6. The operator 
shall keep a record of such training and provide such record to MSHA upon request.

21.   The operator shall post this Order in unobstructed locations on the 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.

22.   Unless specifically mentioned herein, nothing in this Order changes or supersedes the 
requirements otherwise imposed by the Mine Act, other mandatory standards or regulations, or 
approved ventilation or other plans.

The petitioner shall include the above terms and conditions in the initial and annual refresher 
training as required in its approved Part 48 training plans to ensure that miners are aware of the 
stipulations contained in this petition.

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 hearing must be filed with the Administrator for Coal Mine 
Safety and Health, 201 12th Street South, Arlington, Virginia 22202.

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 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      5th     day of
 March    , 2019, to:

Mr. R. Henry Moore
Jackson Kelly PLLC
Three Gatewa y Center, Suite 1340
401 Liberty Avenue
Pittsburgh, PA 15222-1000
hmoore@jacksonkelly.com

                /s/           
Tammi Carrington
Secretary

cc:     Ed Coleman, Bureau Chief, Industrial and Energy Minerals Bureau (IEMB) Permitting & Compliance 
Division, P.O. Box 200901, Helena, MT 59620-0901,
EColeman@mt.gov