Petition - Docket No. M-2020-025-C

7/28/2021
In the matter of:                                    Petition for Modification
Century Mining, LLC
Longview Mine
I.D. No. 46-09447                                Docket No. M-2020-025-C

PROPOSED DECISION AND ORDER

On September 16, 2020, 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 Longview Mine located in Barbour County, West Virginia. 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 C.F.R. § 75.1002(a) states,

(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 certain non- permissible electronic testing or diagnostic equipment in return air outby the last open crosscut (subject area) with additional safeguards including the following: pre-use safety checks of equipment by a qualified person, cessation of coal production during use, continuous methane monitoring before and during equipment use, prohibition on using equipment when methane is at or above 1%, training with respect to safe use and 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 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
MSHA investigators conducted an investigation of Century Mining, LLC’s Longview Mine on November 9, 2020.

The Longview Mine is currently under development. A conventional shaft has been completed with bottom development underway, a raise bore shaft has been bored and is currently being lined with concrete. Approximately 2500’ of the 3500’ slope has been developed. Longview expects coal production to commence with continuous miner development in June 2022 and coal production from longwall mining in July 2023.Longview expects to produce 4 million tons of metallurgical coal in 2024.

The Longview Mine is located in Barbour County, West Virginia on the Peel Tree Road approximately 0.4 miles east of its intersection with U.S. 119 near Volga, West Virginia. Century Mining, LLC has been the mine operator since December 21, 2018. The Longview Mine will operate and extract coal from the Lower Kittanning and Upper Mercer coal seams and the average mining height will be 6.5 feet. At the Longview Portal, the Kittanning coal seam is approximately 880 feet below the surface. The mine will be ventilated by a 16-foot diameter intake air shaft and fan located at the portal site. A 24-foot combination return and hoist shaft will be used for exhaust air and personnel access via a 5-ton rated hoist and cage also located at the portal site. The Longview Mine will employ the room and pillar and longwall mining methods to extract coal and will employ approximately 375 coal miners. Additional access for miners and supplies will be provided by a 3,500 feet, 15 degree slope entry utilizing a 125 ton mine hoist system. The slope floor will have rail installed with a brake car for personnel use. The slope entry will also contain a 72 inch mine conveyor, in the top portion of the slope, which will transport coal to the surface.

Petitioner requests to use the following non-permissible testing and diagnostic equipment in return air outby the last open crosscut: laptop computers, oscilloscopes, vibration analysis machines, cable fault detectors, point temperature and distance probes, infrared temperature devices, insulation testers (meggers), voltage, current, resistance meters, power testers, and electronic tachometers. The petitioner would also like to use other similar testing and diagnostic equipment if approved in advance by the District Manager. The petitioner requests to 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. During MSHA’s investigation the petitioner did not have any testing or diagnostic equipment on site. The petitioners plans to purchase such equipment as the mine develops. Since the equipment was not available for testing as part of this investigation the petitioner must conduct radio frequency interference (RFI) and electromagnetic interference (EMI) testing in order to prevent interference that adversely affects performance of any electrical system. MSHA has investigated the performance of systems such as remote control transmitters, atmospheric monitoring systems, machine mounted methane monitors, miners cap lamps, proximity detection systems and the adverse effects from portable electronic devices. Sources that emit RF and EM energy that are used in underground coal mines must be adequately evaluated. According to National Institute for Occupational Safety and Health (NIOSH), the underground mine environment presents several unique challenges related to the types of equipment used, the operating frequencies of devices that are used, the strata surface and composition which surround the environment, and the physical dimensions of the entries through which signals propagate. NIOSH has conducted research that focuses on unique operating frequencies of intended and unintended sources of EMI, safety factors for electronic components, and performance degradation implication of electronic safety systems1. The International Electrotechnical Commission (IEC) standards for electrical and electronic equipment immunity to electromagnetic energy are provided in IEC61000-4-3 and IEC 61000-4-6 and may be utilized to mitigate potential adverse effects from interference.

A petition should not be filed if the regulation specifically delegates authority to the District Manager to grant a waiver of the standard, unless it is accompanied by correspondence from the District Manager denying the request for the waiver and explaining the reasons for the denial. Similarly, this Order will not grant authority to the District Manager that is not already delegated through an existing regulatory standard. Therefore, the petitioner’s request to use “other similar testing and diagnostic equipment if approved in advance by the District Manager” will not be granted under this Order because the vague language does not adequately identify the specific equipment and consequently no evaluation was made during the investigation.

The mine operator’s request to use cable fault detectors within 150 feet of working sections or longwall faces will not be granted under this Order because cable fault detectors have the capability of detecting faults at distances of several thousand feet and determines the distance from the detector connection to the cable fault location. The cable fault detectors can be connected at a power center location and are capable of detecting faults at any location in the cable. Cables are used in many different locations in the underground mine environment. When using cable fault detectors the area must be examined to determine whether or not it is safe to inject current throughout the length of the cable and not just where you and the cable fault detector are located. The

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1 Zhou, Chenming (Jim), Mining Project: Electromagnetic Interference and Electromagnetic Compatibility Considerations in Underground Mines, The National Institute for Occupational Safety and Health (NIOSH), Office of Mine Safety and Health Research, Pittsburgh, PA, January 2019, also found at https://www.cdc.gov/niosh/mining/researchprogram/projects/project_EMIEMC.html

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atmosphere should be tested for hazardous levels of methane in all the mining areas where the cable is located prior to injecting current into the cable.

Electrical accidents that occur in the mining industry frequently result in serious workplace injuries. The two most common categories of electrical injury are electrical shock and electrical burns. Since January 2020, 32 electrical accidents have occurred in the mining industry. Contact with electrical current occurred in 13 of the accidents, two of which resulted in fatalities. Flash burns occurred in 12 of these accidents. Most of these electrical accidents occurred while work was being performed on electrical equipment. Conducting electrical work on energized electrical conductors or circuit parts is intentionally coming in contact with energized electrical conductors or components, with body parts, tools, probes or test equipment regardless of the personal protective equipment (PPE) a person is wearing. There are two categories of "working on": diagnostic and repair. Diagnostic (testing) is taking readings or measurements of electrical equipment with approved test equipment that does not require making any physical change to the equipment; and repair is any physical alteration of electrical equipment (such as making or tightening connections, removing or replacing components, etc.). Seven accidents occurred during the work-related duties of troubleshooting or conducting diagnostic testing and 14 occurred while electrical equipment was being repaired.

Due to the lack of testing or diagnostic equipment onsite, MSHA was unable to conduct testing to determine whether or not there was any potential adverse effects from RFI or EMI. Nor was MSHA able to observe the safe demonstrated use of the petitioned equipment. MSHA regulations do not directly address procedures for testing and diagnostic equipment that are not permissible in areas where permissible equipment is required. Therefore, in order to determine if the alternative method will all times guarantee no less than the same measure of protection afforded by the existing standard, additional measures shall be incorporated when using the testing and diagnostic equipment as petitioned. The National Fire Protection Association (NFPA) 70E 2018 edition is a voluntary consensus standard that applies electrical safety related work practices in the work place2. This consensus standard incorporates new research, new technology, with electrical hazards encountered by employees in current work places. An electrically safe working environment can be provided and maintained when the processes are followed using testing and diagnostic equipment.

testing and diagnostic equipment. The program must include the following: hazard elimination as the first priority; electrical safety principles; lockout/tagout principles, programs and procedures; establishing an electrically safe work condition; establishment of an effective audit program; establish effective controls; conducting an effective risk assessment; minimizing human error utilizing hierarchy of controls; job safety planning and job briefing; conducting inspections to verify that installations are safe; conducting effective maintenance; conducting incident investigations; conducting electrical safety training; establishing emergency response training for electrical related accidents; testing instruments and equipment; operation verification; visual inspections; adhering to manufacturer’s instructions; and, establishing work procedures that address electrical hazards while considering infeasibility, work permits, and shock risk; conducting arc flash risk assessments; and establishing limited approach boundaries.

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.3 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 one- fault (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. § 75.1002(a) is to ensure that electric equipment will not cause a mine ignition, fire, or explosion when such equipment is taken into or used

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3 Calder, William, David P. Snyder, and John F. Burr; Intrinsically Safe Systems: Equivalency of International Standards Compared to U.S. Mining Approval Criteria, IEEE Transactions on Industry Applications, January 2018; Calder, William, et. al., An Evaluation of the Relative Safety of U.S. Mining Explosion-Protected Equipment Approval Requirements versus those of International Standards, in Procedures, Society of Mining Engineers, Annual Meeting, Denver, Colorado, USA, February 2017, also found at: https://www.cdc.gov/niosh/mining/content/electrical/explosionprotectionresearch.html; and Homce, Gerald, Joseph Waynert, Michael Yenchek, and R.J. Matetic, R.J.; A Comparison of U.S. Mining Industry Criteria for Intrinsically Safe Apparatus to Similar IAEC-Based Standards, Centers For Disease Control (CDC), National Institute for Occupational Safety and Health (NIOSH), Office of Mine Safety and Health Research, Pittsburgh, PA, December 2016, also found at: https://www.cdc.gov/niosh/mining/content/comparisonofminingcriteria html.

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within 150 feet of pillar workings or longwall faces 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 within 150 feet of pillar workings or longwall faces, 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.

Miners were interviewed as part of the investigation and they did not raise safety concerns related to the use of this equipment. The miners at the Longview Mine are not represented by a labor union and there are no designated miner’s representatives. The granting of this petition would affect all underground miners. The petition has been posted on the mine bulletin board.

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. § 75.507-1(a).

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, as amended, 30 U.S.C. § 811 (c), it is ordered that Century Mining, LLC’s Petition for Modification of the application of 30 C.F.R. § 75.1002(a) in the Longview Mine is hereby:

GRANTED, for low-voltage or battery-powered non-permissible electronic testing and diagnostic equipment taken into or used within 150 feet of pillar workings or longwall faces (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. Fault detectors are not allowed in the subject area. 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 shall be followed and 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. The equipment shall be tested for potential adverse effects of Radio Frequency Interference (RFI) and Electromagnetic Interference (EMI) for any disturbances with performance of remote control transmitters, atmospheric monitoring systems, fire sensors, machine-mounted methane monitors, hand-held detectors, miner’s cap lamps, tracking and communication systems, proximity detection systems, etc. A record of the test performed similar to those conducted by NIOSH shall be maintained on mine property for the service life of the equipment and made available to MSHA upon request. MSHA should be notified at least 5 working days before such testing will be performed.

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 de- energize 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-approved 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 non- certified 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 any testing and diagnostic 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. The petitioner must also follow the safe and reasonable work practices that address a lockout tagout program and arc flash risk assessments and protections. Following the work practices in the voluntary consensus standard NFPA 70E 2018 (or equivalent) is one method to meet this requirement.

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 Mine Safety and Health Enforcement District Manager, specifying the initial and annual training needed for the safe operation of this equipment. The training must include the safe work practices, procedures, and the safety program that addresses a lockout tagout program and arc flash risk assessments and protections. Guidelines that address these elements are contained in the voluntary consensus standard NFPA 70E 2018 and inclusion of these guidelines (or equivalent) is one method to meet this requirement. 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 Mine Safety and Health Administration’s 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 crosscut of the affected area shall be provided and addressed in the mine ventilation plan.

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 Mine Safety and Health Enforcement, 201 12th Street South, 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.

Timothy R. Watkins,
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 28th day of
July , 2021, to:

Mr. Ryan Toler,
General Manager
Century Mining, LLC
200 Chapel Brook Drive
Bridgeport, West Virginia 26330
rtoler@centuryminingllc.com

Robert S. Roark
Mine Safety and Health Specialist

cc: Mr. Eugene White, Director, Office of Miners’ Health Safety & Training, #7 Players Club Dr. Suite 2, Charleston, WV 25311
Eugene.E.White@wv.gov