Petitionermay no longer utilize drills and Petitioner may now utilizeLeica Total Station Model no. TCR307under certain prescribed terms and conditions contained in the ALJ Decision &Order Approving Settlement and Dismissal Order,Petitioner General Chemical (Soda Ash) Partners,Issue Date: 24 May 2005 (Document is Attached).
December 13, 2004
In The Matter of PETITIONFOR MODIFICATION
General ChemicalCorporation
General Chemical Mine
I.D. No. 48-00155 Docket No. M-2002-003-M
BACKGROUND
On April 19, 2002, General ChemicalSoda Ash Partners(GCSAP) pursuantto Section 101(c) of the application of 30 CFR § 57.22305to its GeneralChemical Mine (ID No. 48- 00155) located in Sweetwater County, Wyoming.
The General ChemicalMine is an underground trona mine using the room and pillar mining method.It has been classified as a gassy mine, Category III, and typically exhausts approximately 1.4 millioncubic feet of methanedaily.
30 CFR § 57.22305,Approved Equipment, provides in part:
Equipment used in or beyond the last open crosscut and equipment used in areas where methanemay enter the air current,such as pillar recoveryworkings, longwallfaces and shortwall faces, shall be approvedby MSHA under the applicable requirements of 30 CFR Parts 18 through 36. Equipmentshall not be operated in atmospheres containing 1.0 percent or more methane.
GCSAP alleges that the alternative method outlined in its petition will not result in a diminution of safety to minersif they are allowed to use the following non-permissible equipment in or beyond the last open crosscut:
1. Leica Total Station ModelNo. TCR307
2. Cordless Milwaukee 14.4 volt HammerDrill Model No. 0514-20,or equivalent.
GCSAP allegesthe following reasons to supportuse of the Leica Total Station Model No. TCR307(the station). Distances could be measured withoutentering an area.A built-in electronic distancemeter allows remote measurement by reflecting light off an object, such as the face,with no reflector. The station would eliminate miner travel through areas with poor roof or rib conditions and would allow measurement in unbolted areas. Use of the stationwould significantly reduce exposureto poor ground conditions for surveying personnel.
GCSAP allegesthe following in supportof using the cordless, Milwaukee 14.4 Volt, Hammer Drill (the drill). TheDrill would replaceuse of a screw, twist-type, Yankee hand drill which requires more effortand time by surveyingpersonnel engaged in drillingspad holes. Now miners stand on a ladder usuallyplaced on uneven floor.If the drill is used, miners would spend less time on the ladder and reduce physical fatigue. Petitioner alleges that this will also eliminaterepetitive motioninjury such as carpal tunnelsyndrome.
On August 7, 2002, MSHA investigators conducted an investigation into the merits of the petition and filed a writtenreport of their findings and recommendations with the Administrator for Metaland Nonmetal Mine Safetyand Health. On May 6, 2004, MSHA’s technical Supportstaff prepared a reportconcerning the use of nonpermissible equipment. After a carefulreview of the entirerecord, including the petition, MSHA'sinvestigative report and recommendations, and the TechnicalSupport report, this ProposedDecision and Order is issued.
FINDINGSOF FACT AND CONCLUSION OF LAW
GCSAP alleges that the alternative methodoutlined in its petition regarding the Station will not result in a diminution of safetyto miners. The Petitioner states that using the Station will make it unnecessary for miners to enter areas that might have poor roof or rib conditions. However, the petition has not alleged that the alternative method would at all times providethe same measure of protection as the existing standard.
The station manufacturer’s specifications providethe following: Limits of use
Environment
Suitable for use in an atmosphere appropriate for permanent human habitation: not suitablefor use in aggressive or explosiveenvironments. Use in rain is permissible for limited periods. (emphasis added)
In contrast, intrinsically safe equipment, as required by the standard,does not have the potentialto release enough electrical or thermalenergy to ignite a flammablemixture of gas. 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 methanewhile the station is in use would not detect methane in a timely manner.Methane detectors use catalytic, heat-of-combustion, sensors,which do not respondimmediately to the presenceof methane in the atmosphere. Because of the response time of the methanedetector followinga methane release, the methanelevel could exceedthe action level at the stationbefore the methanerelease is detectedand acted upon.
Further,the allegations concerning protection of the minersfrom poor ground conditions do not addressthe hazards addressed by MSHA’sstandard requiringuse of permissible equipment inby the last open crosscut. MSHA addresses ground supporthazards under 30 CFR § 57.3200 which requiresthe operator to take down or support hazardous ground conditions before work or travelis permitted in the area.
GCSAP allegesthat the alternative methodoutlined in its petition regarding using the drill will not result in a diminution of safetyto miners. However,the petitioner has not demonstrated that the use of nonpermissible drills would guarantee at all times the same measure of protection as the standard.
The drill manufacturer specifications state:
Do not operatepower tools in explosive atmospheres, such as in the presenceof flammable liquids,gases, or dust. Power tools create sparks which may ignite the dust of fumes.
MSHA Technical Support staff reiterated the importance of not using nonpermissible drills in gassy mines or potentially explosive atmospheres in a recentreport concerning the use of nonpermissible equipment. The report concludedthat examining the work area for methaneperiodically, or even continuously, does not guaranteeat all times the same measure of protection as would use of permissible equipment required underthe existing standard. Examining for methanebefore drilling does not detectmethane released duringdrilling becausethe methane releasefollows the drill’spenetration of the potentially gassy strata.The drill is closer to the potential sourceof the methane than the methanedetector. Methane detectors use catalytic, heat-of-combustion, sensors that do not respond immediately to the presence of methane in the atmosphere. Becauseof the response time of the methanedetector and the proximityof the drillmotor to the probablemethane releasepoint, the methanelevel could exceedthe action level at the drill beforethe methane releasecan be detected and acted upon.
Finally, petitioner alleges that using the drill will decrease drillingtime, reduce fatigue, and eliminate the occurrence of injury, such as carpal tunnel syndrome. Although these may improve efficiency or reducethe potential for injury, they do not addressthe same explosionand fire hazards as the standardpetitioner seeks to modify.
The Administrator has determined the petition fails to demonstrate that the proposed alternative method 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 NonmetalMine Safety and Health,and pursuant to Section101(c) of the FederalMine Safety and Health Act of 1977, 30 U.S.C. Section 811(c), it is orderedthat a modification of the application of 30 CFR §57.22305 for the station and drill at the GeneralChemical Mine is herebyDENIEDbecause the Petitioner has not demonstrated that the proposed alternative methodwill at all times guarantee no less than the same measure of protection afforded minersworking at the mine as would the existingmandatory standard.
Any party to this action desiring a hearingmust file a request for hearing within 30 days after serviceof the Proposed Decisionand Order, in accordance with 30 CFR Part 44.14, with the Administrator for Metaland Nonmetal Mine Safetyand Health, 1100 Wilson Boulevard, Arlington, Virginia22209-3939. If a hearing is requested, the requestshall contain a concise summaryof position on the issuesof fact or law desiredto be raised by the party requesting the hearing, including specificobjections to the ProposedDecision and Order. A party other than the petitioner who has requested a hearingshall also comment upon all issues of fact or law presentedin the petition. Any party to this actionrequesting a hearingmay indicate a desired hearing site.If no request for a hearingis filed within 30 days after service thereof, this ProposedDecision and Order will become final and must be posted by the operatoron the mine bulletin board at the mine.
/s/ RobertM. Friend
Robert M. Friend
Administrator for Metaland 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
CASE NO.: 2005-MSA-00006
In the Matter of
GENERAL CHEMICAL (SODA ASH) PARTNERS,
Petitioner
v. MINE SAFETY & HEALTH ADMINISTRATION (MSHA),
Party OpposingPetition, and
GLENN SIBERT (MINER'S REPRESENTATIVE),
Party-in-Interest.
DECISION & ORDER APPROVING SETTLEMENT AND DISMISSALORDER
Thisproceeding arises under Section I O l (c) of the FederalMine Safety and Health Act of 1977, 30 U.S.C. 81 l (c) and its implementing regulations found at 30 C.F.R. 44. On April 19, 2002, Petitioner, General ChemicalSoda Ash Partners, filed a petition for modification of the application of 30 C.F.R. § 57.22305 to allow the use of a LeicaTotal Station Model No. TCR307 and a Cordless Milwaukee14.4 volt Hammer Drill Model No. 0514-20, or equivalent, at the General Chemical Mine near Green River in Sweetwater County,Wyoming. On December13, 2004, MSHA issueda Proposed Decisionand Order denyingthe petition for modification.
The Petitioner thereafterfiled a request for hearing on January 13, 2005. The case was subsequently assigned to the undersigned Administrative Law Judge and an Initial Prehearing Order was issued on February 24, 2005..
On May 16, 2005, the parties submitteda Consent Agreementcontaining Consent Findings and a ConsentOrder, signed by each party.The Consent Agreement with Consent Findings and Consent Order are incorporated herein by this reference and are attached to this Order.
Theparties have agreedthat:
I ) The ConsentOrder shall have the same effect as if made after a full hearing.
2) The recordon which this Order is based consistsof the Petition and agreement, and all other pertinent information as set forthin Section 44.27(b)(2).
3) In accordance with 30 C.F.R. § 44.27(b)(3), Petitioner agrees to waive any further procedural steps before the Administrative Law Judge and Assistant Secretary.
4) In accordance with 30 C.F.R.§ 44.27(b)(4), Petitioner agrees to waive any right tochallenge or contestthe validity of the ConsentFindings and ConsentOrder made in accordance with the ConsentAgreement.
safety.
The terms and conditions of the ConsentOrder do not result in a diminution of
6) The terms and conditions of the ConsentOrder will at all times guarantee no less than the same measure of protection affordedby the existing modification.
ORDER
I have carefully examinedthe Consent Agreement, Consent Findings and 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 ACCEPTEDand ADOPTEDas the Order of the undersigned. The petition of General Chemical Soda Ash Partners in this matter is thereforeDISMISSED.This Order constitutes the final agency action
Russell D. Pulver Administrative Law Judge
SERVICE SHEET
Case Name: MSHA v. GENERALCHEMICAL CORPORATION
Case Number:2005MSA00006
Document Title: DECISION AND ORDER APPROVINGSETTLEMENT AND DISMISSAL ORDER
I hereby certify that a copy of the above-referenced documentwas sent to the following this 24th day of May, 2005:
JEWEL A. MARTINEZ
LEGAL ASSISTANT
KeithA Mullins
MineSafety Supervisor
Green RiverSoda Ash OperationsGeneral ChemicalMine
P.O. Box 551
GreenRiver, WY 82935-0551
{Hard Copy - Regular Moil}
Marvin W Nichols, Jr. Director
Officeof Standards, RegulationsNariances
Mine Safety & Health Administration 1100 Wilson Boulevard
Arlington, VA 22209-3939
{Hard Copy - Regular Moil}
GlennSibert
Miners' Representative
Green RiverSoda Ash OperationsGeneral Chemical Mine
P.O. Box 551
GreenRiver, WY 82935-0551
{HardCopy ·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
{Hard Copy - Regular Mail}
. .
In the matter of:
General ChemicalSoda Ash Partners General Chemical Mine
Petition for Modification
b
,.--,
!. D. No. 48-00155
Docket No. 2005-MSA-OY
CONSENT AGREEMENT
. ' .)
,::5
On April 19, 2002, General ChemicalSoda Ash Partners(Petitioner/Operator) filed a petiiionfor modification, pursuantto 30 U.S.C. § I O l (c) and 30 C.F.R.§ 44.13, of the application of'lO
C.F.R. § 57.22305 to its soda ash mine nearGreen River, Wyoming (No. M-2002-03-M). Petitioner sought to use in or beyond the last open crosscut certainnon-permisible tools,
including (1) Leica Total Station Model no. TCR307,with 6 volt battery and (2) Milwaukee 14.4 volt Y2" hammer Drill Model No. 0514-20, or equivalent. Petitioner alleged that the use of this equipment was an alternative method which wouldreduce the risk of injury, be just as effective for the purposeutilized, and would at all times guaranteeno less than the same measure of protection afforded by the standard. MSHA personnel conducted an investigation of the petition and filed a reportof their findings and recommendations with the Administrator. On April 27, 2004,the Approval and Certification Center in MSHA's Directorate of Technical Supportissued an Investigative Reportentitled Evaluation of Petitions forBattery-Operated Cordless Drills.
Based on that report,the findings and recommendations and other information, the Administrator issued a Proposed Decisionand Order ("PDO") denying the petitionon December 13, 2004.
Petitioner disagreed with MSHA's proposedaction and requesteda hearing before a Department of Labor Administrative Law Judge, pursuantto 30 C.F.R. § 44.14. The parties thereafter entered into settlement discussions, and negotiated this agreement which is a modification of the
application of 30 C.F.R.§ 57.22305 to Petitioner's GeneralChemical Mine. In accordance with. 30C.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)(l ), both MSHA and Petitioner agree that the following Consent Order shall have the same effect as if made after a full hearing.
In accordance with 30 C.F.R. § 44.27(b)(2), both MSHA and Petitioner agree that the record on whichthe following ConsentOrder is based consists of the petitionand agreement, and all other pertinent information as set forth in Section 44.27(b)(2).
Jn accordance with 30 C.F.R.§ 44.27(b)(3), Petitioner agrees to waive any furtherprocedural steps beforethe Administrative Law Judge and Assistant Secretary.
'.
2
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 Find ings and Consent Order made in accordance with this Consent Agreement.
Both MSHA and Petitioner agree that the terms and conditions of the followingConsent Order do not result in a diminution of safety.
Both MSHA and Petitioner agree that the terms and conditions of the followingConsent Order will at all times guarantee no less than the same measure of protection affordedby the existing modification.
CONSENT ORDER
Under the authority delegated by the Secretary of Labor to the Administrator for Metal andNonmetal Safety and Health,and under § I O l (c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 81 l (c), and 30 C.F.R. Part 44, an amended modification of the application of 30 C.F.R. § 57.22305 at the GeneralChemical Mine is hereby:
GRANTED, subject to the following termsand conditions:
I . Petitioner shall not use nonpermissible electricdrills, including but not limited to the Milwaukee14.4 volt \12" hammer Drill Model No. 0514-20 and equivalent drills, for any purpose, in or beyond the last open crossscutor in
any area where methanemay enter the air current,such as pillar recovery workings, longwall facesor shortwall faces.
2. Any and all equipment used in the areas designated in the precedingparagraph shall comply in all respectswith 30 C.F.R. § 57.22305,except as provided below:
3. Petitioner may use the following equipmentin or beyond the last open crosscut: Leica Total Station Model no. TCR307,with 6 volt battery and/or equivalent units.
a. Immediately prior to and continuously whileusing any of the equipment permitted in the preceding paragraph, Petitioner shalltest for methane in 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 audiblealarms, which has been approvedby MSHA pursuantto 30
C.F.R.§ 57.22227.
3
b. Petitioner will immediately cease the use of such equipment and follow the procedures within 30 C.F.R. § 57.22234 whenever 1.0percent or more of methane is detected.
c. Petitioner will ensure that qualified personnel, trained in the requirements of this petition,will physically attendall such equipment whenever it is located in or beyond the last open crosscut.
d. Batteries containedin the surveying equipment must be "changed out" or "charged" in freshair outby the last open crosscut.
e. This grant of modification is subject to review at the discretion of the Administrator.
•
4
The parties request that the presidingAdministrative Law Judge issue an Order approving this Consent Agreement including the Consent Findingsand the Consent Order as a modification of 30 C.F.R. § 57.22305 at the GeneralChemical Mine.
Respectfully submitted,
DAYID A. GRAHAM
Manager,
Occupational Safety and Health
General Chemical(Soda Ash) Partners
P.0.Box 551
Green River,Wy. 82935(307) 872-3378
HOWARD M. RADZELY
Solicitor of Labor
EDWARDP. CLAIR
Associate Solicitor
MARKR. MALECKI
Counsel for Trial Litigation
TIMONTY S. WILLIAMS
Trial Attorney
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard Room 2211
Arlington, Virginia 22209
Attorneys for Mine Safety andHealth Administration
(202)693-9337