Petitioner may now utilize the Topcon GTS 300 Series Electronic Total Station under certain prescribed terms and conditions contained in the ALJ Decision & Order Approving Settlement and Dismissal Order, Petitioner OCI Wyoming, L.P, Issue Date: 24 May 2005 (Document is Attached).
December 13, 2004
In The Matter of PETITION FOR MODIFICATION
OCI Wyoming, L.P.
Big Island Mine
I.D. No. 48-00154 Docket No. M-2002-002-M
PROPOSED DECISION AND ORDER
On January 28, 2002, OCI Wyoming, L.P. (OCI), filed a petition for modification of the application of 30 CFR § 57.22305 (Approved Equipment) at the Big Island Mine (ID No. 48-00154), located in Sweetwater County, Wyoming. The Big Island Mine is an underground trona mine using the room and pillar mining method. It has been classified as gassy, Category III, under MSHA regulations and typically exhausts 400,000 cubic feet of methane daily. In compliance with the Federal Mine Safety and Health Act of 1977, Section 103(i), gas levels are checked at the Big Island Mine by MSHA every 15 working days.
30 CFR § 57.22305, Approved equipment, provides in part:
Equipment used in or beyond the last open crosscut and equipment used in areas where methane may enter the air current, such as pillar recovery workings, longwall faces and shortwall faces, shall be approved by MSHA under the applicable requirements of 30 CFR Parts 18 through 36. Equipment shall not be operated in atmospheres containing 1.0 percent or more methane.
The petitioner seeks use of the Topcon GTS Series Electronic Total Station (Station), or similar surveying instrument, inby the last open crosscut. OCI states that the alternative method outlined in the petition will at all times guarantee no less than the same measure of protection for miners as afforded by the standard and that it will not result in diminution of safety to the miners.
The petition states that use of the Station will eliminate labor intensive ventilation modifications and would allow for more accurate surveying of abandoned mining panels. Petitioner states that the Station, or similar surveying instrument, would be used to traverse for mine expansion and obtain elevations in support of on-going geologic and rock mechanics modeling. OCI states that the Station would not be operated in atmospheres containing one per cent or more of methane.
On April 11, 2002, MSHA investigators conducted an investigation into the merits of the petition and on May 28, 2002, filed a written report of their findings with the Administrator for Metal and Nonmetal Mine Safety and Health. In addition, MSHA’s Technical Support prepared a report concerning the use of nonpermissible equipment on May 6, 2004. After a careful review of the entire record, including the petition, MSHA's investigative report, and MSHA’s Technical Support report, this Proposed Decision and Order is issued.
FINDINGS OF FACT AND CONCLUSION OF LAW
Petitioner alleges that use of the Station will eliminate labor intensive ventilation modifications. However, petitioner has detailed neither the labor intensive ventilation modifications that would be eliminated nor the hazards to which the miners would be exposed while performing this work. Further, petitioner has stated that ventilation would be maintained at a minimum of 10,000 cubic feet per minute (cfm) during drilling at the face if the petition were granted. Mandatory standard 30 CFR § 57.22213 already requires that a minimum of 2,000 cfm of air be coursed across each face of working places. To maintain either airflow, ventilation modifications will be required regardless of whether the Station is used or not.
OCI alleges that use of the Station will not result in a diminution of safety to the miners and that this method will at all times guarantee no less than the same measure of protection afforded by the standard. The Station is not intrinsically safe (not having the potential to release enough electrical or thermal energy to ignite a flammable mixture of gas) nor has it been approved by MSHA for use in gassy atmospheres. The Station manufacturer specifically warns that the Station is not approved for use in areas near flammable gas, liquid matter, and that it should not be used in a coal mine. This mine typically exhausts 400,000 cubic feet of methane daily.
Examining for methane before using the Station, followed by continuous monitoring while the Station is in use, will not provide miners equivalent protection. Examining for methane while the Station is in use would not detect methane in a timely manner.
Methane detectors use catalytic, heat-of-combustion, sensors which do not respond immediately to the presence of methane in the atmosphere. Because of the response time of the methane detector following a methane release, the methane level could exceed the action level at the Station before the methane release was detected and acted on.
The Administrator for Metal and Nonmetal has determined the Petitioner has failed to demonstrate that using the Station inby the last open crosscut will at all times guarantee no less than the same measure of protection afforded by the standard.
ORDER
Wherefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Metal and Nonmetal Mine Safety and Health, 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 a modification of the application of 30 CFR § 57.22305 to allow the use of a Topcon GTS Series Electronic Total Station at the Big Island Mine is hereby
DENIED
because the Petitioner has not established that the alternative method will at all times guarantee no less than the same measure of protection afforded by the standard.
/s/ Robert M. Friend Robert M. Friend
Administrator for Metal and Nonmetal Mine Safety and Health
U.S. Department of Labor Office of Administrative Law Judges
50 FremontStreet - Suite 2100 San Francisco, CA 94105
(415) 744-6577
(415) 744-6569 (FAX)
Issue Date: 24 May 2005
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CASE Nos.: 2005-MSA-00005 and 2005-MSA-00008 :.:(/)
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l'"",r,
II 1
In the Matterof
OCI WYOMING, L.P.,
Petitioner
v.
MINE SAFETY & HEALTH ADMINISTRATION (MSHA),
Party Opposing Petition, and
::n
DAVE ANDERSON (MINER'SREPRESENTATIVE),
Party-in-Interest.
DECISION & ORDER APPROVING SETTLEMENT AND DISMISSAL ORDER
These proceedings arise under Section 101(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 81l(c) and its implementing regulations found at 30 C.F.R. 44. On January 28, 2002, Petitioner, OCI Wyoming L.P., filed two Petitions for Modification to allow the use of a Topcon GTS Series Electronic Total Station surveying instrument or similar surveying instrument and to allow the use of a 12 to 18 volt, battery-powered cordless drill manufactured by Black & Decker, DeWalt, Makita, Milwaukee, Hilti or similar battery-powered drill to drill spad holes, to survey, and to install rock mechanic stations at the Big Island Mine near Green River in Sweetwater County, Wyoming. On September 17, 2002, MHSA issued a Proposed Decision and Order granting the petition with respect to the use of a 12 to 18 volt, battery powered cordless drill manufactured by Black & Decker, DeWalt, Makita, Milwaukee, Hilti or similar battery-powered drill to drill spad holes, to survey, and to install rock mechanic stations. Thereafter, on December 13, 2004, MSHA issued a Proposed Decision and Order revoking this prior grant of the petition for modification and also issued on the same date a Proposed Decision and Order denying the petition to allow the use of a Topcon GTS Series Electronic Total Station surveying instrument or similar surveying instrument.
The Petitioner thereafter filed requestsfor hearing which were receivedin the Office of Administrative Law Judges on January 28, 2005. The caseswere subsequently assigned to the
undersigned Administrative Law Judge and an InitialPrehearing Order was issued on February 24, 2005 in each case.
On May 16, 2005, the parties submitted a Consent Agreement contammg Consent Findings and a Consent Order, signed by each party. The Consent Agreementwith Consent Findings and Consent Order are incorporated herein by this reference and are attached to this Order.
The parties have agreed that:
I ) The ConsentOrder shall havethe same effect as if made after a full hearing.
2) The record on which this Order isbased consists of the Petitionand agreement, and allother pertinent information as set forthin Section 44.27(b)(2).
3) Jn accordance with 30 C.F.R.§ 44.27(b)(3), Petitioner agrees to waive any further procedural steps beforethe Administrative Law Judge andAssistant Secretary.
4) In accordancewith 30 C.F.R. § 44.27(b)(4), Petitioner agrees to waive any right tochallenge or contest the validity of the ConsentFindings and ConsentOrder made in accordance with the Consent Agreement.
5) The terms and conditions of the Consent Order do not result in a diminution of safety
6) The terms and conditionsof the Consent Order will at all times guaranteeno less than the same measureof protection affordedby the existing modification.
ORDER
I have carefullyexamined the ConsentAgreement, Consent Findingsand Consent Order submitted by the parties.Following that review,I have concluded that the Consent Findingsand Consent Order are consistent with the requirements of 30 C.F.R.§ 44.27 and therefore the Consent Order is ACCEPTED and ADOPTED as the Order of the undersigned. The petitions of OCJ Wyoming L.P. in this matter are thereforeDISMISSED. This Orderconstitutes the final agency action.
Russell D. Pulver
Administrative Law Judge
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'·
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SERVICE SHEET
Case Name:MSHA v. OCI WYOMING,L.P.
Case Numbers:2005MSA00005, 2005MSA00008
Document Title: DECISION AND ORDER APPROVINGSETTLEMENT AND DISMISSAL ORDER
I hereby certify that a copy ofthe above-referenced documentwas sent to the following this 24th day of May, 2005:
JEWEL A. MARTINEZ
LEGAL ASSISTANT
Dave Anderson Miners' RepresentativeOCI Wyoming.LP. Big Island Mine
P.O. Box 513
GreenRiver, WY 82935
{Hard Copy - Regular Mail}
Kurt Hollberg
MineEngineering Superintendent
OCI Wyoming,LP. Big Island Mine
P.O. Box 513
GreenRiver, WY 82935
{Hard Copy - Regular Mail}
Marvin Nichols,Jr. Director
Office of Standards, RegulationsNariancesMine Safety& Health Administration
1100 WilsonBoulevard
Arlington, VA 22209-3939
{HardCapy - Regular Mail}
Counselfor Trial Litigation
Div. of Mine Safety and Health
U. S. Department of Labor
1100 WilsonBlvd, 22nd Floor East Arlington, VA 22209-2247
{Hard Copy - Regular Mail}
Administrator for Coal Mine Safety & Health
U. S. Department of Labor
1100Wilson Blvd., Room 2424
Arlington, VA 22209-3939
{HardCopy - Regular Mail}
.... • :""l
1
In the matter of: OCI Wyoming,L.P. Big Island Mine
I.D. No. 48-00154
Petition for Modification Docket Nos. 2005-MSA-05 &
2005-MSA-08
CONSENT AGREEMENT
-y
On January 28, 2002, OCI Wyoming, L.P. (Petitioner/ Operator) filed two petitionsfor modification, pursuant to 30 U.S.C.§ 101(c) and 30 C.F.R.§44.13, of the application of 30 C.F.R. §57.22305 to its soda ash mine near Green River, Wyoming.Petitioner sought to use in or beyond the last open crosscutcertain non-permissible tools. In one petition (No. M-2002-01-M), petitioner requested permission to use 12-18 volt battery powered cordless drills manufactured by Black &Decker, DeWalt, Makita,Milwaukee, Hilti or another manufacturer. Petitioner alleged that the use of this equipment was an alternative method which would reduce the risk of injury, be just as effective for the purpose utilized, and would at all times guarantee no less than the same measure of protection afforded by the standard. MSHA personnel conductedan investigation of the petitions and filed a report of their findingsand recommendations with the Administrator. Based on the findingsand recommendations and other information, the Administrator issued a ProposedDecision and Order ("PDO") grantingthe petition on September 17, 2002.On April 27, 2004, the Approval and Certification Centerin MSHA's Directorate of Technical Supportissued an Investigative Report entitled Evaluation of Petitions for Batterv-Operated CordlessDrills. Based on that report,the Administrator issued a Proposed Decisionand Order ("PDO") revoking the prior grant of the petition, on December13, 2004.
In the other petition (No. M-2002-02-M), petitioner sought modification to use Topcon GTS 300 Series Electronic Total Station surveyingequipment with a 9.6 volt battery or equivalent equipment. Petitioner allegedthat the use of this equipment was an alternative method which would reducethe risk of injury, be just as effective for the purpose utilized, and would atall times guaranteeno less than the same measure of protection afforded by the standard. MSHA personnel conducted an investigation of the petitions and filed a report of their findingsand recommendations with the Administrator. On April 27, 2004, the Approvaland Certification Centerin MSHA' s Directorate of Technical Supportissued an Investigative Report entitled Evaluation of Petitions for Battery-Operated Cordless Drills. Basedon that report,the findings and recommendations and other information, the Administrator issueda Proposed Decision and Order ("PDO") denyingthe petition on December 13, 2004.
. .
2
Petitioner disagreedwith MSHA's proposedaction in these two cases and requested hearings before a Department of Labor Administrative Law Judge, pursuant to 30 C.F.R. § 44.14. The parties thereafter entered into settlement discussions, and negotiated this agreement which isa modification of the application of 30 C.F.R.§ 57.22305 to Petitioner's Big Island Mine. In accordance with 30 C.F.R.§ 44.27(b), this agreement containsConsent Findings and a ConsentOrder disposing of the entire proceeding.
CONSENT FINDINGS
In accordance with 30 C.F.R.§ 44.27(b)(1), both MSHA and Petitioner agree that the following Consent Order shall have the same effectas if made after a full hearing.
In accordance with 30 C.F.R.§ 44.27(b)(2), both MSHA and Petitioner agreethat the record on which the following ConsentOrder is based consists of the petitionand agreement, and all other pertinent information as set forthin Section 44.27(b)(2).
In accordance with 30 C.F.R.§ 44.27(b)(3), Petitioner agrees to waiveany further procedural stepsbefore the Administrative Law Judge and Assistant Secretary.
In accordance with 30 C.F.R.§ 44.27(b)(4), Petitioner agrees to waive any right to challenge or contest the validityof the Consent Findings and Consent Order made in accordance with this ConsentAgreement.
Both MSHA and Petitioner agree that the terms and conditions of the following Consent Order do not result in a diminution of safety.
Both MSHA and Petitioner agree that the terms and conditions of the following Consent Order will at all times guarantee no less than the same measure of protection afforded
by the existing modification.
CONSENT ORDER
Under the authority delegatedby the Secretary of Labor to the Administrator for Metal and Nonmetal Safety and Health, and under § 101(c) of the FederalMine Safety and Health Act of 1977, 30 U.S.C. § 811(c),and 30 C.F.R. Part 44, an amendedmodification of the application of 30 C.F.R.§ 57.22305 at the Big Island Mine is hereby:
GRANTED, subject to the following termsand conditions:
1. Petitioner shall not use nonpermissible electric drills, including but not limited to any 12-18 volt battery poweredcordless drills manufactured
by Black &Decker, DeWalt, Makita, Milwaukee, Hilti or another manufacturer or any equivalent drills, for any purpose, in or beyond the last open crossscutor in any area where methane may enter the air current, such as pillar recovery workings,longwall faces or shortwall faces.
2. Any and all equipment used in the areas designated in the preceding paragraph shall complyin all respects with 30 C.F.R. §57.22305, except as providedbelow:
3. Petitioner may use the followingequipment in or beyond the last open crosscut: Topcon GTS 300 Series Electronic Total Station surveying equipment with a 9.6 volt battery and/ or equivalent units.
a. Immediately prior to andcontinuously while using any of the equipment permitted in the precedingparagraph, Petitioner shall test for methanein the mine atmosphere, as mine atmosphere is defined in 30 C.F.R. §57.2, and as close to the equipment as possible. Petitioner shall test with an approved instrument capable of providingboth visual and audible alarms, which has been approvedby MSHA pursuantto 30
C.F.R. §57.22227.
b. Petitioner will immediately cease the use of such equipmentand follow the procedures within 30 C.F.R.§ 57.22234 whenever1.0 percent or more of methane is detected.
c. Petitioner will ensure that qualifiedpersonnel, trained in the requirements of this petition, will physically attendall such equipment whenever it is locatedin or beyond the last open crosscut.
d. Batteries contained in the surveyingequipment must be "changed out" or "charged" in fresh air outby the last open crosscut.
e. This grant of modification is subject to review at the discretion of the Administrator.
The parties requestthat the presidingAdministrative Law Judge issue an Order approving this Consent Agreement includingthe Consent Findingsand the Consent Order as a modification of 30 C.F.R.§ 57.22305 at the Big Island Mine.
Respectfully submitted,
Terry ADCOCK
Safety Superintendent OCI Wyoming,L.P.
La Barge Road P.O.Box 513
Green River, Wy. 82935 (307)872-7000
HOWARD M. RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor
MARK R. MALECKI
Counsel for Trial Litigation
TIMOTHY S. WILLIAMS
Trial Attorney
U.S. Department of Labor Office of the Solicitor
1100 WilsonBoulevard
Room 2211
Arlington, Virginia 22209
Attorneys for Mine Safety and Health Administration
(202) 693-9337