2024-28517. Petition for Modification of Application of Existing Mandatory Safety Standards

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Department of Labor

Mine Safety and Health Administration

AGENCY:

Mine Safety and Health Administration, Labor.

ACTION:

Notice.

SUMMARY:

This notice is a summary of a petition for modification submitted to the Mine Safety and Health Administration (MSHA) by Peabody Midwest Mining, LLC.

DATES:

All comments on the petition must be received by MSHA's Office of Standards, Regulations, and Variances on or before January 6, 2025.

ADDRESSES:

You may submit comments identified by Docket No. MSHA-2024-0089 by any of the following methods:

1. Federal eRulemaking Portal: https://www.regulations.gov. Follow the ( print page 97073) instructions for submitting comments for MSHA-2024-0089.

2. Fax: [phone].

3. Email: [e-mail].

4. Regular Mail or Hand Delivery: MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, 4th Floor West, Arlington, Virginia 22202-5452.

Attention: S. Aromie Noe, Director, Office of Standards, Regulations, and Variances. Persons delivering documents are required to check in at the receptionist's desk, 4th Floor West. Individuals may inspect copies of the petition and comments during normal business hours at the address listed above. Before visiting MSHA in person, call 202-693-9455 to make an appointment.

FOR FURTHER INFORMATION CONTACT:

S. Aromie Noe, Office of Standards, Regulations, and Variances at 202-693-9440 (voice), [e-mail] (email), or 202-693-9441 (fax). [These are not toll-free numbers.]

SUPPLEMENTARY INFORMATION:

Section 101(c) of the Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations (CFR) part 44 govern the application, processing, and disposition of petitions for modification.

I. Background

Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:

1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or

2. The application of such standard to such mine will result in a diminution of safety to the miners in such mine.

In addition, sections 44.10 and 44.11 of 30 CFR establish the requirements for filing petitions for modification.

II. Petition for Modification

Docket Number: M-2024-063-C.

Petitioner: Peabody Midwest Mining LLC, CR 725 East, Francisco, Indiana 47699. 62237.

Mine: Francisco Underground Pit, MSHA ID No. 12-02295, located in Gibson County, Indiana.

Regulation Affected:30 CFR 75.500(d), Permissible electric equipment.

Modification Request: The petitioner requests a modification of 30 CFR 75.500(d) to permit an alternative method of compliance to permit the use of battery-powered non-permissible radios used in or inby the last open crosscut.

The petitioner states that:

(a) Peabody previously filed a petition for modification of 30 CFR 75.500(d) on July 12, 2023 (Docket Number M-2023-024-C), but the Proposed Decision and Order (PDO) was denied by MSHA on June 4, 2024.

(b) Peabody currently uses Motorola and Kenwood permissible radios in its underground mine to communicate between miners. Such communication facilitates movement of equipment, assignment of necessary work as well as communication with the surface control room.

(c) The mines also use 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.

(d) 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 notices (see Exhibits 1 and 2) indicated that for a period of time the radios were sold out of stock but that ceased as indicated in the notes. Peabody is not aware of any other radio which is economically feasible.

(e) Peabody seeks modification of 30 CFR 75.500(d) as it applies to use of low voltage battery-powered non-permissible radios. It intends to use the following equipment:

(1) Motorola R-7 Portable Two-Way Radio (see Exhibits 3 and 4). Other intrinsically safe portable radios may subsequently be used if approved in advance by the MSHA District Manager.

(f) Peabody mines utilize the continuous miner method of mining. Some sections utilize two continuous miners and use of the radios permits coordination of the coal haulers and between the two continuous miners.

(g) Effective communication is critical to the safety of the miners at the mine. It reduces the potential for collisions and pedestrian accidents and facilitates communication in an emergency.

(h) The alternative method proposed in the petition will at all times guarantee no less than the same measure of protection afforded by the standard.

The petitioner proposes the following alternative method:

(a) Non-permissible intrinsically safe radios to be used include the Motorola R-7 Portable Two-Way Radio (HAZ LOC certified by UL standards ANSI/TIA 4950).

(b) All such radios shall be rated IP 66 or higher.

(c) All non-permissible radios shall be examined by a qualified person as defined in 30 CFR 75.153 prior to use to ensure the equipment is being maintained in a safe operating condition. These examinations results shall be recorded in the weekly examination book and shall be made available to MSHA and the miners at the mine.

(d) A qualified person as defined in 30 CFR 75.151 shall continuously monitor for methane immediately before and during the use of non-permissible radios.

(e) Non-permissible radios shall not be used if methane is detected in concentrations at or above one percent. When one percent or more methane is detected while the non-permissible radios are being used, the radios shall be de-energized immediately by turning them off and withdrawn from the area.

(f) All hand-held methane detectors shall be MSHA approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320. Each miner using a radio shall be trained in the use of handheld methane detectors.

(g) All radios shall be used in accordance with the safe use procedures recommended by the manufacturer.

(h) Personnel who use non-permissible radios shall be properly trained to recognize the hazards and limitations associated with use of the equipment.

(i) The radio battery is designed to last more than the length of a shift. The radio shall not be charged underground and shall be charged on the surface in accordance with the procedure for other battery-operated devices such as methane detectors.

(j) The operator shall post the PDO granted by MSHA in unobstructed locations on the bulletin boards and/or in other conspicuous places where notices to miners are ordinarily posted, at all the mines for which the PDO granted by MSHA applies, for a period of not less than 60 consecutive days and a copy shall be made available to all miners' representatives.

(k) The proposed radios shall be available for inspection and testing during MSHA's investigation. As other radios are acquired, if the petition is granted, such radios shall be made ( print page 97074) available for MSHA inspection. The radios shall be made available for MSHA testing during the investigation.

(l) The Motorola radio is rated IP 66 and IP 68. It is powered by a lithium cell.

(m) The miners at Francisco Underground Pit are not currently represented by a labor organization and this petition is posted at the mine.

In support of the proposed alternative method, the petitioner has also submitted manufacturer product specification sheets for MSHA-approved permissible radios indicating they are no longer available and manufacturer product specification sheets for the proposed Motorola R-7 Portable Two-Way Radio.

The petitioner asserts that the alternative method in the petition will at all times guarantee no less than the same measure of protection afforded to the miners by the standard.

Song-ae Aromie Noe,

Director, Office of Standards, Regulations, and Variances.