Petition - Docket No. M-2019-028-C

DEC 16 2019
In the matter of:                                         Petition for Modification
Blue Diamond Coal Company
No. 77 Mine
I.D. No. 15-09636                                     Docket No. M-2019-028-C

PROPOSED DECISION AND ORDER

On July 10, 2019, a petition was filed seeking a modification of the application of 30 Code of Federal Regulations (30 C.F.R.) § 75.1002(a) to Petitioner's No. 77 Mine located in Perry County, Kentucky. 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.) § 75.1002(a) states, in relevant part,

(a) Electric equipment must be permissible and maintained in a permissible condition when such equipment is located within 150 feet of pillar workings or longwall faces.

Petitioner is requesting a modification of the standard to allow the use of nonpermissible surveying equipment within 150 feet of pillar workings or longwall faces.

MSHA personnel conducted an investigation of the petition and filed a report of their findings with the Administrator for Mine Safety and Health Enforcement. 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

The petitioner seeks modification of 30 C.F.R. § 75.1002(a) as it applies to use of batterypowered non-permissible surveying equipment to be used within 150 feet of pillar workings or longwall faces. However, in MSHA's experience, there are safety concerns when surveying in this area during production, specifically there can be roof falls and rib rolls during pillar extraction and space limitations for miners near the shear cutting coal and advancing shields in longwall mining. In addition, methane accumulations can be encountered; therefore non-permissible surveying equipment is not permitted to be used during production.
MSHA investigators conducted an investigation of Blue Diamond Coal Company, No. 77 Mine on August 28, 2019.
The No. 77 Mine is located in Perry County, Kentucky on KY State Route 463 approximately 2 miles south from its intersection with KY State Route 699.

Blue Diamond Coal Company has been the mine operator since September 4, 2014. The No. 77 Mine is an underground mine currently operating in the Elkhorn #3 coal bed and the average mine height is 6 feet. The mine has two mechanized mining units each operating five days per week with two 10 hour production shifts and one maintenance shift and records indicate a raw coal production of 395,465 tons for CY 2018. The mine is liberating 125,476 cubic feet of methane in a 24 hour period and is ventilated with one exhausting fan. The mine currently employs 49 underground miners and is not represented by a labor organization. The granting of this petition would affect approximately 47 underground miners at the mine.

There were 17 hourly miners and 5 salary management personnel interviewed about the petition. All employees interviewed had positive comments regarding safety concerns and all were in favor of the petition.

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. § 75.1002(a).

On the basis of the petition and the findings of MSHA's investigation, Blue Diamond Coal Company, is granted a modification of the application of 30 C.F.R. § 75.1002(a) to its No. 77 Mine.

ORDER

Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Mine Safety and Health Enforcement and pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(c), it is ordered that Blue Diamond Coal Company's Petition for Modification of the application of 30 C.F.R. § 75.1002(a) in the No. 77 Mine is hereby:

GRANTED, for the operator who may use the following total stations and theodolites and similar low voltage battery-operated total stations and theodolites if they have an

IP rating of 66 or greater within 150 feet of pillar workings or longwall faces, 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 VDC
4. Sokkia Electronic Total Station Model SETS 50 RX 6 VDC
5. Topcon Electronic Total Station Model GTS-225 7.2 VDC
6. Topcon Electronic Total Station Model GTS-300W 7.2 VDC
7. Topcon Digital Theodolite Model DT-270L
8. Topcon Digital Theodolite Model DT-209L
9. Sokkia Electronic Total Station Model SET-300 7.2 VDC
10. Topcon Electronic Total Station Model GTS-301D 7.2 VDC
11. Topcon Electronic Total Station Model GTS-235W
Terms and Conditions

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. Manufacturer recommended battery packs must be used in all equipment.

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 within 150 feet of pillar workings or longwall faces, shall be examined by the person to operate the equipment prior to taking the equipment underground to ensure the equipment is being used according to the original equipment manufacturer's recommendations and 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 within 150 feet of pillar workings or longwall faces, 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 nonpermissible surveying equipment is being used, the equipment shall be de-energized immediately and the non-permissible electronic equipment withdrawn more than 150feet of pillar workings or longwall faces. Prior to entering within 150feet of pillar workings or longwall faces, 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 within 150 feet of pillar workings or longwall faces, 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 crosscut where surveyors are conducting their work inby the feeder shall be provided and addressed in the Ventilation 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 within 150 feet of pillar workings or longwall faces, methane tests must be made in accordance with 30 C.F.R. § 75.323(a). Nonpermissible surveying equipment must not be used within 150feet of pillar workings or longwall faces when production is occurring.

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 been examined 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 use of non-permissible surveying equipment within 150 feet of pillar workings or longwall faces. 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 “make” such tests for a period of 6 months 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 more than 150 feet away from pillar workings or longwall faces. 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 that shift.
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 within 150 feet of pillar workings or longwall faces, 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 within 150feet of pillar workings or longwall faces. 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. § 75.370(a)(1) ventilation plan and 30 C.F.R. Part 48 training plans 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 within 150 feet of pillar workings or longwall faces regardless of whether the equipment is used by the operator or by an independent contractor.

20. 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 Mine Safety and Health Enforcement, 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
Deputy Administrator for
Mine Safety and Health Enforcement

Certificate of Service
I hereby certify that a copy of this proposed decision was served personally or mailed, postage paid, or provided by other electronic means this 17th day of December , 2019, to:

R. Henry Moore
Arthur M. Wolfson
Patrick W. Dennison
Fisher & Phillips LLP
Six PPG Place
Suite 830
Pittsburg, PA 15222
hmoore@fisherphillips.com

/s/
Michele Gussie
Secretary

cc: Mr. Donald Gatten, Division Director, Division of Mine Safety, 300 Sower Boulevard, P.O. Box 2244, Frankfort, KY 40601
donald.gatten@ky.gov