June 16, 1997

PROPOSED DECISION AND ORDER            thematter of

FOR A REVOCATION OF            Akzo Nobel Salt, Inc.

PETITION FOR MODIFICATION            No. M-94-06-M

BACKGROUND

On February 14, 1994, a petition was filed by Akzo Nobel Salt, Inc. seekinga modification of the application of 30 CFR § 57.19073 to petitioner's Retsof Mine located in Retsof, Livingston County,New York. The petitioner alleged that the alternative method outlined in the petitionwould at all times guarantee no less than the same measure of protection as afforded by the standard.

Standard 57.19073, Hoisting duringshift changes, provides:

Rock or supplies shall not be hoisted in the same shaft as persons during shift changes, unless the compartments and dumping bins are partitioned to prevent spillageinto the cage compartment.

MSHA investigators conducted an investigation relevantto the merits of the petition and filed a report of their findings with the Administrator for Metal and Nonmetal. After a carefulreview of the entire record,including the petition and MSHA's investigative report, a Proposed Decisionand Order was issued on October 17, 1994, granting a modification of 30 CFR § 57.19073 to the Retsof Mine. The modification, which became effective on November 16, 1994,allowed the petitioner to utilize an alternative methodof hoisting during shift changes.

Modification was grantedbased on the 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 standardin that the equipment and procedures to be utilizedby the petitioner to hoist material during shift changes were designed to prevent injuryto persons.

Relief as outlined in the ProposedDecision and orderwas further conditioned upon circumstances existingat the mine at the time the modification was granted.

On April 30, 1997, petitioner filed a requestfor withdrawal of the grantedpetition due to nonuse brought about by closure of the mine and subsequent sealing of the mine shaft. The MSHA Northeastern DistrictManager concurred with petitioner's request for revocation of the petition.

Pursuant to 30 CFR § 44.52, any party to a petition for modification may petition that modification be revoked. Upon receiptof such petition, MSHA shall reviewthe modification to determine whetherjustification for the modification continuesto exist. Upon consideration of the requestfor withdrawal of the Petitionfor Modification filed by the MSHA Northeastern DistrictManager and a similar requestreceived from the petitioner this Proposed Decisionand Order for Revocation of Petition For Modification is issued.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A modification to the Retsof Mine is no longer neededbased upon petitioner's nonuse of the petition and their recent requestfor withdrawal.

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 §57.19073 to the Retsof Mine as it pertains to the alternative method of hoisting material during shift changes 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 afte service, the Proposed Decision and Order for Revocation of Modification will become final pursuant 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.

Vernon R. Gomez

Administrator for Metal

and Nonmetal Mine  Safety and Health