September 25, 1998
| PROPOSED AMENDED DECISION | the matter of |
| Cement Corporation | |
| PETITION FOR MODIFICATION | No. M-94-31-M |
BACKGROUND
On April 19, 1994, a petition was filed by Mitsubishi Cement Corporation seeking a modification of the application of 30 CFR § 56.13020 to petitioner's Cushenbury Plant (I.D. No. 04-00157) located in Lucerne Valley, San Bernardino County, California. The petitioner alleged that the alternative method outlined in the petition, of allowing miners to utilize a low-pressure compressed air system to blow off cement dust accumulations, would at all times guarantee no less than the same measure of protection afforded by the standard.
Standard 56.13020, Use of Compressed Air, provides:
- At no time shall compressed air be directed toward a person.
When compressed air is used, all necessary precautions shall
be taken to protect persons from injury.
MSHA investigators conducted an investigation relevant to the merits of the petition and filed a report of their findings with the Administrator for Metal and Nonmetal. On July 25, 1995, the Administrator issued a Proposed Decision and Order denying the petition for modification. On August 17, 1995, petitioner filed a request for a hearing regarding the denial before the Chief Administrative Law Judge for the U.S. Department of Labor. On November 2, 1995, the Chief Administrative Law Judge remanded the case back to the Administrator for Metal and Nonmetal for further evaluation.
As a result of information presented by the petitioner during the appeal hearing, MSHA investigators conducted another investigation relevant to the merits of the petition and filed a second report of their findings with the Administrator for Metal and Nonmetal. After a careful review of the entire record, including the petition and MSHA's investigative reports, this Proposed Amended Decision and Order is issued.
Pursuant to 30 CFR § 44.53, and after a careful review of the entire record, including the petition, MSHA's investigative reports, and the information submitted by the petitioner, MSHA has determined that the alternative method set forth in this Proposed Amended Decision and Order will at all times guarantee no less than the same measure of protection afforded the miners under 30 CFR ?.13020 by allowing miners to utilize a low-pressure compressed air system to blow dust accumulations from their work clothing. Compliance with this Proposed Amended Decision and Order entitles Mitsubishi Cement Corporation to a modification of the application of 30 CFR ?.13020 to its Cushenbury Plant.
Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Metal and Nonmetal under Section 101 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. section 811(c), it is ordered that a modification of the application of 30 CFR ?.13020 to Mitsubishi Cement Corporation as it pertains to an alternative method of utilizing low-pressure compressed air to remove dust accumulations from work clothes at their Cushenbury Plant is hereby
- GRANTED, conditioned upon compliance with the following:
- Blow-off stations shall be established at
suitable locations in the plant.
- Each blow-off station shall have:
- A blow gun and nozzle that, at the
nozzle end, does not produce air
pressure greater than 6 pounds per
square inch; and
- A tamper-proof regulator and an in-line filter installed in the compressed air system to provide constant-line air pressure to the blow gun and to prevent foreign particles from entering the gun.
- A blow gun and nozzle that, at the
nozzle end, does not produce air
pressure greater than 6 pounds per
square inch; and
- Safety glasses with side shields or goggles
shall be worn each time the blow gun is used.
- The blow gun and nozzle shall only be used
from the shoulder down and shall not be
pointed at any other person. Horseplay is
forbidden while using the gun and nozzle.
- Miners shall not use the blow off stations more than
three times each shift or exceed a total time of 6
minutes a shift.
- Petitioner shall establish written procedures
to ensure that the compressed air system, the
regulator, in-line filter, blow gun, and
nozzle are maintained in a functional
condition. Blow off stations shall not be
used if any of the above items are not
functioning as designed.
- At each blow-off station a sign shall be
posted stating, at a minimum, the following:
- the requirements in conditions number 3, 4, and 5
of this Decision and Order;
- unsafe condition(s) with the station, the
compressed air system, or the blow gun and nozzle
assembly shall be immediately reported to the
appropriate supervisor;
- designated blow off stations are the only locations
approved to use compressed air to blow dust off work
clothes; and
- nozzle(s) shall not be disconnected, removed, altered, or disabled except by authorized personnel during tests, inspection, or maintenance.
- the requirements in conditions number 3, 4, and 5
of this Decision and Order;
- All persons using the blow-off stations shall
receive training in the proper use of the
blow gun and nozzle prior to using the
station. Records of this training shall be
maintained by the petitioner for 3 years and
shall be made available to MSHA and the
miner's representative upon request.
- (a) Qualified persons shall take personal
dust sample(s) at least annually to determine
the effectiveness of control measures for
each blow-off station.
(b) If a Time Weighted Average (TWA) for any sample(s) exceeds the Threshold Limit Value (TLV) for a blowoff station, approved respirators shall be used by all persons using that station. After implementation of appropriate engineering controls respirators are not required to be used when followup dust measurements taken by the petitioner indicate that the TWA is below the TLV.
(c) If respirators are used because of measurements taken in Item 9b above, a respirator program meeting the requirements of ANSI Z-88.2(1969) and 30 CFR § 56.5005 shall be implemented and followed.
- Petitioner shall keep a record of all persons
receiving any eye injury(s) attributed to using
the blow-off gun and nozzle. The record shall
include the miner's name, accident date, the type
and severity of the injury, it's cause(s), and the
steps taken to prevent a reoccurrence.
- Petitioner shall submit a blow-off station(s) annual report to the MSHA Western District Manager and the miner's representative by February 1 for the previous calendar year (January 1 through December 31). The report shall list all dust exposures taken at the blow-off station(s) (including sample dates and locations), all eye injuries attributed to use of the station(s), and actions or measures initiated to prevent future dust overexposures or eye injuries at the station(s).
This granted petition for modification is subject to review by the Administrator for Metal and Nonmetal and may be revised or revoked if a change in circumstances occurs or findings which originally supported the terms or conditions of this granted modification are no longer valid.
Any party to this action desiring a hearing must file a request, in accordance with 30 CFR § 44.14 (1994), within 30 days of the Proposed Amended Decision and Order, with the Administrator for Metal and Nonmetal Mine Safety and Health, 4015 Wilson Boulevard, Arlington, Virginia 22203. This Proposed Amended Decision and Order will become final pursuant to 30 CFR § 44.13(b) (1994) unless a request for a hearing is filed within 30 days.
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 Amended 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 no request for a hearing is filed within 30 days thereof, this Proposed Amended Decision and Order will become final and must be posted by the operator on the bulletin board at the mine.
 _________________________________ Edward C. Hugler Acting Administrator for Metal and Nonmetal Mine Safety and Health |
