On July 29, 1991, a petition was filed by Richem Construction, Inc., seeking a modification of the application of 30 CFR §56.14107 to petitioner's Richem Construction Pit located in Choteau, Teton County, Montana. The petition alleged that the alternative method outlined in the petition would at all times guarantee no less than the same measure of protection afforded by the standard.
Standard 56.14107, Moving machine parts, provides in part:
Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.
MSHA investigators conducted an investigation relevant to the merits of the petition and filed a report of their findings and recommendations with the Administrator for Metal and Nonmetal Mine Safety and Health. After a careful review of the entire record, including the petition and MSHA's investigative report and recommendations, a Proposed Decision and Order was issued on April 22, 1992, denying a modification of 30 CFR §56.14107 to the Richem Construction Pit. On May 5, 1992, petitioner requested a hearing on the denial of the modification request. On March 10, 1993, an Administrative Law Judge (ALJ) overturned the Administrator's denial and granted the petition for modification with certain stipulated conditions.
Modification was granted based on the ALJ's determination that the alternative method, as conditioned on petitioner's compliance with specified factors, would at all times guarantee no less than the same measure of protection afforded by the standard in that the guarding installed by the petitioner achieved the same result as the original standard.
Relief as outlined in the Decision and Order was further conditioned upon circumstances existing at the mine at the time the modification was granted.
On February 1, 1998, petitioner sent correspondence to the MSHA Rocky Mountain District Manager asking that the modification be revoked since they now intended to comply with the mandatory standard and would not need the relief granted by the modification. On February 11 the Rocky Mountain District Manager concurred with petitioner's request for revocation of the petition. Upon consideration of the request for revocation of the modification filed by the MSHA Rocky Mountain District Manager and a similar request received from the petitioner, this Proposed Decision and Order for Revocation of Modification is issued.
FINDING OF FACT AND CONCLUSION OF LAW
A modification to the Richem Construction Pit is no longer needed based upon petitioner's intended compliance with the mandatory standard and their recent request for revocation.
ORDER
Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Metal and Nonmetal and pursuant to Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C., Section 811(c), it is ordered that modification of the application of 30 CFR §56.14107 to the Richem Construction Pit as it pertains to the alternative method of guarding moving machine parts is hereby REVOKED.
Unless a request for a hearing of this Proposed Decision and Order for Revocation is filed with the Administrator for Metal and Nonmetal Mine Safety and Health within 30 days after service, the Proposed Decision and Order for Revocation of Modification will become final pursuant to 30 CFR §44.52.
Any party to this action desiring a hearing must file a request for hearing in accordance with 30 CFR §44.14, with the Administrator for Metal and Nonmetal, 4015 Wilson Boulevard, Arlington, Virginia 22203. 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 and Order. A party other than the petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition.
Any party to this action requesting a hearing may indicate a desired hearing site. If a request for a hearing is not filed within 30 days of service, this Proposed Decision and Order will become final and must be posted by the operator on the mine bulletin board.
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Edward C. Hugler
Acting Administrator for
Metal and Nonmetal
Mine Safety and Health |
