6/4/2024
In the matter of
Peabody Gateway North Mining, LLC
Gateway North Mine
I.D. No. 11-03235
Petition for Modification Regulation Petitioned
Docket No. M-2023-019-C 30 C.F.R. § 75.1002(a)
Docket No. M-2023-020-C 30 C.F.R. § 75.507-1(a)
Docket No. M-2023-021-C 30 C.F.R. § 75.500(d)
PROPOSED DECISION AND ORDER
On July 12, 2023, Peabody Gateway North Mining, LLC filed the above listed petitions for modification seeking a modification of the application of the identified 30 Code of Federal Regulations (30 C.F.R.) to its Gateway North Mine located at 12968 State 13, Coulterville, Randolph County, Illinois 62237, Mine I.D. No. 11-03235, to permit an alternative method of compliance to permit the use of battery powered non- permissible radios at the identified mine. A subsequent letter dated September 14, 2023 acknowledged receipt of the referenced petitions for modification. 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 petitioner states that the mine currently uses Motorola and Kenwood permissible radios in its underground mine to communicate between management and hourly employees. Such communication facilitates movement of equipment, assignment of necessary work as well as communication with the surface control room. This is in addition to wired communication systems and the communication and tracking systems required in the mine's Emergency Response Plan. Such communication facilitates efficiency and safety. It occurs along the face areas and in other areas covered by this standard. It facilitates communication in case of emergencies such as injuries both on the section and to the surface.
The petitioner further states that Motorola and Kenwood have discontinued the manufacture and sale of MSHA-approved permissible radios. Such radios were the
only permissible radios available for the underground coal mine industry.
The Petitioner is requesting a modification of the identified standards to allow the use of the following equipment as listed in the petition for modification:
(1) Motorola XPR 3300e, XPR 3500e, XPR 7350e, XPR 7380e and XPR 580e portable radios. HAZ LOC certified by UL standards ANSI/TIA 4950 and CAN/CSA 22.2 No. 157-92. Classification Rating Division 1, Class I, Groups C, D; Class II Group E, F, G; Class III T3C. Tomb = 25°C +60° and Classification Rating Division 2, Class 1, Groups A, B, C, D.
Intrinsically safe when used with Motorola Battery PMNN4489A.
(2) New R7 portable radios. HAZ LOC certified by UL standards ANSI/TIA4950 and CAN/CSA 22.2 No. 157-92.
Classification Rating Division 1, Class I, Groups C, D; Class II Group E, F, G; Class III T3C. Tomb = 25°C +60° and Classification Rating Division 2, Class 1, Groups A, B, C, D. Intrinsically safe when used with Motorola Battery PMNN4810.
Other intrinsically safe portable radios may be used if approved in advance by the MSHA District Manager.
Finding of Fact and Conclusion of Law
MSHA investigators contacted Mr. Will Schuchard, Mine Engineer Manager on February 27, 2024 to identify points of contact for the investigation. Mr. Preston Britton, Safety Manager was subsequently identified as the petitioner’s point of contact. On March 5, 2024, a mine visit occurred and Mr. Britton stated that he did not know anything about the submitted petition. Mr. Britton stated that Mr. Max Haney, Corporate Safety, submitted the petition and the mine was not aware of it until contacted by MSHA. Mr. Britton was advised of several questions about the radios, how the petition process proceeds and was informed of additional information needed along with additional testing to be performed prior to proceeding with the investigation. Mr. Britton indicated that the petitioner would probably narrow the list of radios to one or two models. Mr. Donnie Kincannon, Maintenance Manager, stated that he would be participating in the petition process and that he was looking at several intrinsically safe radios, but had just become aware of the petition when MSHA contacted the mine about conducting the petition investigation. Mr. Kincannon was asked about the IWT radios but stated that the IWT radios were not compatible with the systems in use at the mine. MSHA contacted Mr. Max Haney via email on April 10, 2024 inquiring about the petitioner’s response to the additional information previously requested and asked if the petitioner would like to withdraw the petition and resubmit
at a later date when the petitioner has the required information and testing results for MSHA to thoroughly evaluate the petitioner’s request.
On April 10, 2024, the investigator sent guidance to Mr. Haney in relation to special precautions that should be taken when charging lithium batteries and radio frequency and electromagnetic interference safety alert. Mr. Haney was not previously aware of the information provided concerning potential hazards related to lithium batteries.
The petitioner has not provided documentation from the manufacturer to support the allegation of discontinued manufacturing and sale of MSHA approved permissible radios by Motorola and Kenwood.
The petitioner stated on April 10, 2024, they had purchased the Motorola R7 portable radio, Motorola AAH06RDC9WA1AN-UL, with intrinsically safe battery PMNN4810 mic and charger. The petitioner further stated that this is the only radio that should be considered for petition purposes and ordered this model without face plate buttons or LCD screen. The petitioner provided a sales brochure of the R7 radio, but it lacked some specific characteristics of the radios necessary to start the process of performing the on- site tests.
The petitioner asserts that the alternate method proposed will as all times guarantee no less that the same measure of protection afforded under the mandatory standard.
The mine did not have the radios available on-site when last contacted, has not performed their own tests on the equipment and has not provided the required information for MSHA to investigate the petition in a thorough and timely manner.
The miners at Gateway North Mine are not represented by a labor organization.
SUMMARY
MSHA determined that the Petitioner has not provided all the contents required by the provision. All supporting documentation including a detailed statement of the facts the Petitioner would show to establish the grounds upon which it is claimed a modification is warranted has not been provided. MSHA provides the following statements:
The petitioner states that the alternate method proposed will as all times guarantee no less that the same measure of protection afforded under the mandatory standard. The petitioner failed to provide facts that support the statement. No facts were provided to support that the alternate method of using non-permissible radios in a potentially explosive atmosphere provides protection to miners that is equivalent to the measure of protection afforded under the mandatory standard.
The petitioner states that Motorola and Kenwood have discontinued the manufacture and sale of MSHA-approved permissible radios and further states that such radios were the only permissible radios available for the underground coal mine industry. The petitioner failed to provide any documentation from the radio manufacturers that supports their statement. Mr. Britton, Safety Manager was the point of contact for the investigation. Mr. Britton told the MSHA investigator that he had no knowledge of the submitted petition for modification and was only aware of it when contacted by MSHA. Mr. Kincannon was asked about the IWT radios but stated that the IWT radios were not compatible with the systems in use at the mine. The statements provided by Mr. Britton indicates that the petitioner has not made a diligent effort to identify the availability of other permissible radios as replacements for the discontinued radios. The petitioner failed to provide information and facts that support Mr. Kincannon’s statement that the IWT radios were not compatible with the systems in use at the mine.
The petitioner stated that they purchased the Motorola R7 portable radio, Motorola AAH06RDC9WA1AN-UL, with intrinsically safe battery PMNN4810 mic and charger. The petitioner failed to provide information for MSHA review regarding the standards used to determine intrinsic safety and demonstrate that the testing is comparable with other accepted methods. The petitioner provided a sales brochure of the R7 radio, but it lacked some specific characteristics of the radio necessary to perform on-site testing.
MSHA requested additional information including questions and results of testing to effectively evaluate this petition for modification. The petitioner has not performed their own testing of equipment and additionally has not provided the information requested by the investigator.
The investigator stated that, when last contacted, the mine did not have the radio on- site for MSHA to investigate the petition in a thorough and timely manner.
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 Peabody Gateway North Mining, LLC’s Petition for Modification of the application of 30 C.F.R. § 75.500(d), 30 C.F.R. § 75.507-1(a) and 30 C.F.R. § 75.1002(a) at the Gateway
North 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, 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 bulletin board at the mine.
Brian Goepfert
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 4th day of June, 2024 to:
R. Henry Moore
Arthur M. Wolfson
Patrick W. Dennison
Fisher & Phillips
LLP Six PPG Place
Suite 830
Pittsburg, PA 15222
hmoore@fisherphillips.com
6/4/2024
Robert S. Roark
Mine Safety and Health Specialist
cc: Mr. Tom Benner, Director, Office of Mines and Minerals, Illinois Dept. of Natural Resources, One Natural Resources Way, Springfield, IL 62702-1271
DNR_MMLRD@illinois.gov