January 6, 2023
In the matter of: Petition for Modification
Peabody Southeast Mining, LLC
Shoal Creek Mine
Mine ID: 01-02901 Docket No. M-2021-036-C
PROPOSED DECISION AND ORDER
On November 4, 2021, a petition was filed seeking a modification of the application of 30 Code of Federal Regulations (30 C.F.R.) § 75.507-l(a) to Petitioner's Shoal Creek Mine located in Walker County, Alabama. 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.) § 75.507-l(a) states, in relevant part,
(a) All electric equipment, other than power-connection points, used in return air outby the last open crosscut in any coal mine shall be permissible except as provided in paragraphs (b) and (c) of this section.
Petitioner is requesting a modification of the standard to allow the use of non permissible testing and diagnostic equipment in return air outby the last open crosscut.
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
MSHA investigated the petition at Peabody Southeast Mining, LLC's Shoal Creek Mine on January 12, 2022. The Mine Operator participated in the investigation represented by the Superintendent, Safety Supervisor, and Engineer. The Miner's Representative also participated in the investigation. The miners are represented by the United Workers of America (UMWA).
Peabody Southeast Mining LLC's Shoal Creek Mine is in Tuscaloosa and Walker County, Alabama. The Shoal Creek Mine is a vertical-shaft underground mine extracting from the Blue Creek seam by means of a longwall mining system and continuous mining machines. The mine liberates 611,312 cubic feet of methane in a 24-hour period.
The mine operator is petitioning for a modification of application of mandatory standard§ 75.507-l(a) to permit the use ofbattery-powered non-permissible testing and diagnostic equipment including but not limited to, laptop computers, oscilloscopes, vibration analysis machines, cable fault detectors, point temperature probes, infrared temperature devices, insulation testers (meggers), voltage, current resistance and power testers, and electronic tachometer in return airways outby the last open crosscut. The petitioner also states that other testing and diagnostic equipment may be used if approved in advance by the MSHA District Manager.
The operator contends such use is needed for accurate testing and diagnostic in troubleshooting equipment when it breaks down in or inby the last open crosscut. The petitioner stipulates that accurate testing and diagnostics for trouble shooting equipment in return areas is critical to the safety of miner at the Shoal Creek Mine. The petitioner realizes that permissible diagnostic and testing equipment is not available for all types of testing and diagnostics. The operator acknowledges certain equipment is currently on the list of approved permissible devices. For example, Peabody recognizes that certain types such as vibration analysis machines, point temperature and infrared temperature devices, voltage current and resistance meters are currently on the list of approved permissible products.
Peabody includes such devices within this petition to the extent the approved devices may not be readily available on the market. Peabody seeks modification of the standard as it applies to the use of low voltage battery-powered non permissible testing and diagnostic equipment.
During the investigation the operator was unable or unwilling to provide a specific list of measuring, testing and diagnostic equipment stating, 'the model numbers of equipment changes almost yearly' and such a list would rapidly be outdated. The operator emphasized the fact that such equipment would be low voltage but did not provide a maximum voltage or ampere-hour capacity of such equipment.
One source of methane ignition in these areas are sparks from non-permissible electrical equipment. Such sparking can occur within non-permissible electrical equipment at the switch as it is energized and de-energized. The ability to create such a spark of sufficient energy and temperature as to ignite methane gas is a function of electrical energy available on the equipment and is a combination of both voltage and amperage. Low-voltage equipment can store enough energy in the circuit and power supply to create a spark capable of igniting methane gas in the immediate area.
The safety purpose of this regulation is to ensure that electric equipment will not cause a mine ignition, fire, or explosion when such equipment is taken into areas of a mine that are where methane gas may be present in a coal mine. The regulations in 30 C.F.R. Part 18 is Electric Motor-Driven Equipment and Accessories. These standards set forth the requirements to obtain MSHA Approval of electrically operated machines and accessories intended for use in gassy mines or tunnels, certification of components intended for use on or with approved machines, permission to modify the design of an approved machine or certified component, acceptance of flame-resistant hoses, sanction for use of experimental machines and accessories in gassy mines or tunnels. This section also establishes the standards for procedures for applying for such approval, certification, acceptance for listing.
According to 30 C.F.R. Part 18 applications are thoroughly investigated and such investigations leading to approval, certification, extension, etc. shall be accompanied by all necessary drawings, specifications, descriptions, and related materials as set forth in Part 18. Necessary testing and evaluation must be part of the approval application. Similarly, MSHA's Petitions for Modification Handbook PH08-I-2 provides procedures and instruction for investigating petitions for modifications. It includes that where an alternate method involves new equipment information such as drawings, specifications, descriptions, brochures, pamphlets, or other technical information must be reviewed. Where necessary accurate samples or other factual information must be obtained to support the conclusions in the investigative report. The report must contain factual information to support
granting or denying the petition. In this case, the petitioner did not provide a list of the equipment they intend on using stating 'the model numbers of equipment change almost yearly' and such a list would rapidly be outdated.
This petition is posted on the mine bulletin board. This petition would affect all underground miners at this mine.
MSHA's investigation must cover all aspects of the petition including all information. The only information provided about the petitioned equipment was that it is low voltage. The scope of Part 44 that establishes the rules of practice for petitions for modification of mandatory safety standards shall be liberally construed to carry out the purpose of the Act by assuring adequate protection of miner and to secure just and prompt determination of all proceedings consistent with adequate consideration of the issues involved. MSHA is unable to fulfill its duty of completing an investigation of all the facts when the petitioner does not provide the testing and diagnostic equipment intended to be used.
The petitioner in this case provided what it was seeking and statements supporting its claim however this does not fulfill it minimum requirement including facts the petitioner show to establish the grounds upon which it is claimed a modification is warranted. The petitioner did not provide the equipment or a list of the equipment for consideration. MSHA would not be fulfilling its requirement if it allowed the petitioner to select and use all equipment selected by the petitioner that is unknown to MSHA. This is not consistent with adequate consideration of the issues involved. Failure of the Petitioner to provide the contents of the petition required according to 30 C.F.R. § 44.11 including but not limited to the equipment to complete the investigation has resulted in the petition being denied.
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 l0l(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 81 l(c), it is ordered that Peabody Southeast Mining, LLC's Petition for Modification of the application of 30 C.F.R. § 75.507-l(a) in the Shoal Creek Mine is hereby:
DENIED
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, Suite 401, Arlington, Virginia 22202-5452.
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.
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 6th day of January, 2023, to:
R. Henry Moore Counsel for
Peabody Southeast Mining, LLC Six PPG Place
Suite 830 Pittsburg, PA 1522
hmoore@fisherphillips.com
Eric Martin GM Operations
Shoal Creek Mine
Peabody Southeast Mining, LLC
emartin@peabodyenergy.com
William Davis Safety Manager
Shoal Creek Mine
Peabody Southeast Mining, LLC
wdavis2@peabodyenergy.com
Joe Weldon
Miners' Representative
Shoal Creek Mine
654 Camp Creek Road
Oakman, AL 35579
joecraigweldon@gmail.com
Rodney Adamson
Mine Safety and Health Specialist for Mine Safety and Health Enforcement
cc: Mr. Brian J. Wittwer, Mine Safety and Inspection Acting Director, Alabama Department of Labor, 11 West Oxmoor Road, Ste. 201, Birmingham, AL 35309; Brian.Wittwer@labor.alabama.gov