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-2026-020-C.

Petitioner: Panther Creek Mining, LLC, 1345 Elk Ridge Road, Powellton, West Virginia 25161.

Mine: Maple Eagle East Deep Mine, MSHA ID No. 46-09416, located in Fayette County, West Virginia.

Regulation Affected:30 CFR 75.1002(a), Permissible electric equipment.

Modification Request: The petitioner requests a modification of the existing standard, 30 CFR 75.1002(a) to permit the use of battery-powered non-permissible surveying equipment within 150 feet of pillar workings. Specifically, the petitioner is requesting to permit the use of Topcon 3005 LW and Nikon Nivo 5.M total stations.

The petitioner states that:

(a) The petitioner seeks modification of 30 CFR 75.1002(a), as it pertains to the use of battery-powered non-permissible surveying equipment, including, but not limited to, portable battery operated mine transits, total station surveying equipment, distance meters and data loggers.

(b) That standard 30 CFR 75.1002(a) provides in relevant part:

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.

(c) The petitioner seeks modification of 30 CFR 75.1002(a) as it applies to use of battery-powered non-permissible surveying equipment.

(d) In order to comply with requirements of 30 CFR 75.372, and § 75.1200, use of the most practical and accurate surveying equipment is necessary. In order to ensure the safety of the miners in active mines and to protect miners in future mines which may mine in close proximity to these same active mines it is necessary to determine the exact location and extents of the mine workings.

(e) Mechanical surveying equipment has been obsolete for a number of years. Such equipment of acceptable quality is not commercially available. Further, it is difficult, if not impossible, to have such equipment serviced or repaired.

(f) Electronic surveying equipment is, at a minimum, 8-10 times more accurate than mechanical equipment.

(g) The mine utilizes the continuous miner method of mining.

(h) Accurate surveying is critical to the safety of the miners at the Maple Eagle East Deep Mine.

(i) Application of this standard would result in a diminution of safety to miners. Underground mining by its nature, size and complexity of mine plans require that accurate and precise measurements be completed in a prompt and efficient manner.

(j) The petitioner seeks an alternative method to the mandatory safety standard, asserting it will at all times guarantee no less than the same measure ( printed page 65791) of protection afforded the miners under the mandatory standard.

The petitioner proposes the following alternative method:

(a) The operator 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 in or inby the last open crosscut, in the return, or within 150 feet of pillar workings or longwall faces subject to the conditions of this Petition:

(1) Topcon 3005 LW—Serial #4J12333.

(2) Nikon Nivo 5.M—A302275.

(b) The equipment allowed under this Petition 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.

(c) 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. The logbook shall be made available to MSHA upon request.

(d) All non-permissible electronic surveying equipment to be used in or inby the last open crosscut, in the return, or 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 maintained in a safe operating condition. These examinations shall include:

(1) Check the instrument for any physical damage and the integrity of the case;

(2) Remove the battery and inspect for corrosion;

(3) Inspect the contact points to ensure a secure connection to the battery;

(4) Reinsert the battery and power up and shut down to ensure proper connections; and

(5) Check the battery compartment cover or battery attachment to ensure that it is securely fastened.

(e) The results of this examination will be recorded in the logbook.

(f) The equipment shall be examined at least weekly by a qualified person as defined in 30 CFR 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.

(g) The operator is to ensure that all non-permissible electronic surveying equipment is serviced according to the manufacturer's recommendations.

(h) Dates of service will be recorded in the equipment's log book and shall include a description of the work performed.

(i) The non-permissible surveying equipment that will be used in or inby the last open crosscut, in the return, or 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 Petition.

(j) 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 non-permissible surveying equipment is being used, the equipment shall be de-energized immediately and the non-permissible electronic equipment withdrawn outby the last open crosscut, out of the return, or more than 150 feet from pillar workings or longwall faces. Prior to entering in or inby the last open crosscut, in the return, or within 150 feet of pillar workings or longwall faces, all requirements of 30 CFR 75.323 must be complied with.

(k) As an additional safety check, prior to setting up and energizing non-permissible electronic surveying equipment in or inby the last open crosscut, in the return, or 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 unrockdusted 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.

(l) All hand-held methane detectors shall be MSHA-approved and maintained in permissible and proper operating condition as defined by 30 CFR 75.320. All methane detectors must provide visual and audible warnings when methane is detected at or above 1.0 percent.

(m) Prior to energizing any of the non-permissible surveying equipment in or inby the last open crosscut, in the return, or within 150 feet of pillar workings or longwall faces, methane tests must be made in accordance with 30 CFR 75.323(a).

(n) All areas to be surveyed must be pre-shifted according to 30 CFR 75.360 prior to surveying. If the area was not pre-shifted, a supplemental examination according to 30 CFR 75.361 must be performed before any non-certified person enters the area. If the area has been examined according to 30 CFR 75.360 or 30 CFR 75.361, additional examination is not required.

(o) A qualified person as defined in existing 30 CFR 75.151 shall continuously monitor for methane immediately before and during the use of non-permissible surveying equipment in or inby the last open crosscut, in the return, or within 150 feet of pillar workings or longwall faces.

(p) 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 CFR 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 CFR 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.

(q) Batteries contained in the surveying equipment must be “changed out” or “charged” in intake air outby the last open crosscut, out of the return and more than 150 feet away from pillar workings or the longwall face.

(r) 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 that they are not expected to be replaced on that shift.

(s) When using non-permissible electronic surveying equipment in or inby the last open crosscut, in the return, or within 150 feet of the 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 mine's ventilation plan. ( printed page 65792)

(t) 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.

(u) All members of the surveying crew shall receive specific training on the terms and conditions of this Petition before using non-permissible electronic equipment in or inby the last open crosscut, in the return, or within 150 feet of the pillar workings or longwall face. A record of the training shall be kept with the other training records.

(v) Within 60 days after any granted Petition becomes final, the operator shall submit proposed revisions for its approved 30 CFR part 48 training plans to the Coal Mine Safety and Health District Manager. These proposed revisions shall specify initial and refresher training regarding the terms and conditions stated in this Petition. When training is conducted on the terms and conditions in this Petition, 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.

(w) 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 Petition becoming final. Within three years of the date that any granted Petition 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 Petition became final or any total station or the other electronic surveying equipment identified in this Petition acquired more than ten years prior to the date that this Petition 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.

(x) 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 Petition. The conditions of use in this Petition shall apply to all non-permissible electronic surveying equipment used in or inby the last open crosscut, in a return, or within 150 feet of pillar workings or longwall faces regardless of whether the equipment is used by the operator or by an independent contractor.

(y) Non-permissible surveying equipment may be used when production is occurring, subject to these conditions:

(1) On an MMU where production is occurring, non-permissible electronic surveying equipment shall not be used downwind of the discharge point of any face ventilation controls, such as tubing (including controls such as “baloney skins”) or curtains.

(2) Production may continue while non-permissible electronic surveying equipment is used, if the surveying equipment is used in a separate split of air from where production is occurring.

(3) Non-permissible surveying equipment shall not be used in a split of air ventilating an MMU if any ventilation controls will be disrupted during such surveying. Disruption of ventilation controls means any change to the mine's ventilation system that causes the ventilation system not to function in accordance with the mine's approved ventilation plan.

(4) If, while surveying, a surveyor must disrupt ventilation, the surveyor shall cease surveying and communicate to the section foreman that ventilation must be disrupted. Production must stop while ventilation is disrupted. Ventilation controls must be reestablished immediately after the disruption is no longer necessary. Production can only resume after all ventilation controls are reestablished and are in compliance with approved ventilation or other plans, and other applicable laws, standards, or regulations.

(5) Any disruption in ventilation shall be recorded in the logbook required by this Petition. The logbook shall include a description of the nature of the disruption, the location of the disruption, the date and time of the disruption, the date and time the surveyor communicated the disruption to the section foreman, the date and time production ceased, the date and time ventilation was reestablished, and the date and time production resumed.

(6) All surveyors, section foremen, section crew members, and other personnel who will be involved with or affected by surveying operations shall receive training in accordance with 30 CFR 48.7 on the requirements of this Petition within 60 days of the date this Petition becomes final. Such training must be completed before any non-permissible surveying equipment can be used while production is occurring. The operator shall keep a record of such training and provide such record to MSHA upon request.

(7) The operator shall provide annual retraining to all personnel who will be involved with or affected by surveying operations in accordance with 30 CFR 48.8. The operator shall train new miners on the requirements of this Petition in accordance with 30 CFR 48.5, and shall train experienced miners, as defined in 30 CFR 48.6, on the requirements of this Petition in accordance with 30 CFR 48.6. The operator shall keep a record of such training and provide such record to MSHA upon request.

The miners at Maple Eagle East Deep Mine are not represented by a labor organization and this petition is posted on the mine bulletin board as of June 26, 2026. The petitioner asserts that the alternative method will guarantee no less than the same measure of protection afforded the miners under the mandatory standard. In support of the proposed alternative method, the petitioner has also submitted specification sheets for the Topcon 3005 LW and Nikon Nivo 5.M.

91 FR 65790