Petitioner may now utilizethe distance metersunder certain prescribed terms and conditions containedin the ALJ Decision & Order Approving Settlement and Dismissal Order,Petitioner FMC Corporation, Issue Date: 24 May 2005 (Document is Attached.
December 13, 2004
In the matter of PETITION FOR MODIFICATION
FMC Corporation
FMC@Westvaco Mine
I.D. No. 48-00152 Docket No. M-2003-001-M
PROPOSED DECISION AND ORDER
On May 15, 2003, FMC Corporation (FMC) filed a petitionfor modification of 30 CFR
§57.22305(Approved Equipment), at the FMC@Westvaco Mine (ID No. 48-00152) located in Sweetwater County,Wyoming. The FMC@Westvaco Mine is an underground trona mine using the room and pillarmining method. It has been classified as a gassy mine, CategoryIII, under MSHA regulations. In compliance with the Federal Mine Safety and Health Act of 1977, Section 103(i), gas levels are checkedat the FMC@Westvaco Mine by MSHA personnel every five working days.
Standard 57.22305, ApprovedEquipment, providesin 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.
FMC’s petition request states that using a Leico DISTO laser distance meter (the Meter),or similar surveyinginstrument to measure distances in areas that have not yet been roof bolted will increase miners’safety. Petitioner states that methane levelswould be checked before using the Meter,every ten minutesduring use, and that the Meter would not be operatedin atmospheres containing one per cent or more methane. Additionally, Petitioner states that they would train all employeesin the use of the Meter and the terms and conditions of the modification.
On June 18, 2003, MSHA investigators conducted an investigation into the meritsof the petition and on July 14 filed a writtenreport of their findings with the Administrator for Metal and NonmetalMine Safety and Health.On May 6, 2004, MSHA Technical Support staff prepared a reportconcerning the use of nonpermissible equipment. After a careful review of the entirerecord, includingthe petition, MSHA's investigative report, and the MSHA Technical Supportreport, this Proposed Decisionand Order is issued.
FINDINGS OF FACT AND CONCLUSION OF LAW
The Petitioner states that the Meter’spower output is minimaland considerably less than the 12-wattthreshold for intrinsically safe electrical equipment. MSHA’s investigation report determined that there is not a 12-wattthreshold for intrinsically safe equipment. Intrinsically safe equipmentdoes not have the potential to release enough electrical or thermalenergy to ignite a flammable mixtureof gas. The Meter manufacturer’s specifications state that the Meter “cannot be used in an aggressive or explosiveenvironment.” Using the Meter inby the last open crosscutwould expose minersto the high risk createdby a poorly ventilated area and would be a potentialignition sourcein an explosive atmosphere.
Further, Petitioner states that some areas in the mine cannot be measured to the face due to the roof not being bolted. Mandatory MSHA standards require these areas to be inspected, scaled,or bolted prior to minersgoing inby and/or prior to further mining.
Furthermore, the convenience of using the Meter so that loose groundwould not need to be scaledor bolted does not justify its use inby the last open crosscut. Locatingheadings can be accomplished without taking the Meterinby the last open crosscut.
FMC allegesthat the alternative methodoutlined in its petition regarding the Meterwill not result in a diminution of safety. The Meter manufacturer’s specifications state that the meter cannotbe used in an aggressive or explosiveenvironment, such as a gassy mine.
Intrinsically safe equipment does not have the potentialto release enough electrical or thermal energyto ignite a flammable mixture of gas. Examining for methane before using the Meter,followed by continuous monitoring while the Meter is in use, will not at all times provide the same measure of protection to minersworking at the mine.
Examining for methanewhile the Meter was in use would not detect methane in a timely manner. Methanedetectors use catalytic, heat-of-combustion, sensors which do not respond immediately to the presenceof methane in the atmosphere. Because of the responsetime of the methane detectorfollowing a methane release, the methanelevel could exceed the action level at the Meter before the methanerelease was detectedand acted on.
The Administrator for Metal and Nonmetal has determined that the Petitioner has failed to demonstrate that use of a Leico DISTO laser distance meter inby the last open crosscutwill at all times guaranteeno less than the same measureof protection affordedby the standard.
ORDER
Wherefore, pursuantto the authority delegated by the Secretaryof Labor to the Administrator for Metal and NonmetalMine Safety and Health,and pursuant to Section 101(c) of the FederalMine Safety and Health Act of 1977,30 U.S.C. Section811(c), it is ordered that a modification of the application of 30 CFR § 57.22305to allow the use of the Leico DISTO laser distance meter for the FMC@Westvaco Mine is hereby DENIED becausethe Petitioner has not established that the alternative method will at all times guaranteeno less than the same measure of protection afforded by the standard.
/s/ Robert M. FriendRobert 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
CASENOS.: 2005-MSA-00007 and 2005-MSA-00009
In the Matterof:
FMC CORPORATION,
Petitioner,
V. MINE SAFETY& HEALTHADMINISTRATION (MSHA),
Party Opposing Petition, and
UNITED STEELWORKERS OF AMERICA 13214
Party-in-Interest.
and
CASENO.: 2005-MSA-00011
In the Matterof:
FMC CORPORATION (Formerly TG SODA ASH, INC.),
Petitioner,
v.MINE SAFETY& HEALTH ADMINISTRATION (MSHA),
Party OpposingPetition, and
MONTE MORELOCK (MINER'S REPRESENTATIVE),
Party-in-Interest.
DECISION & ORDER APPROVING SETTLEMENT AND DISMISSAL ORDER
Theseproceedings arise under Section 101 (c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 8l l (c) and its implementing regulations found at 30 C.F.R. 44. On May 2, 1991, Petitioner, FMC Corporation's predecessor, Tg Soda Ash, Inc., filed a petition for
modification to allow the use of a Mikitacordless drill, or otherequivalent cordless drills,to drill spad holes for surveying and to install ventilation tubing anchors at the FMC Granger(formerly Wyoming Soda Ash) Mine near Green Riverin Sweetwater County,Wyoming. On October29, 1991, MHSA issueda Proposed Decisionand Order granting the petition.On July 21, 1999, MHSA grantedpetitioner an amendedmodification to use equivalent drillsto the Makita, for the previously granted application. Thereafter, on December 13, 2004, MSHA issued a Proposed Decision and Order revoking thisprior grant of the petitionfor modification.
In another petitionfiled in 2000, petitioner sought modification to use the same or similar drills at its Westvaco Mine near Green River in Sweetwater County,Wyoming. MHSA issued a Proposed Decision and Order grantingthe petition on August 28, 2001. On March 26, 2002, petitioner filed a request to amend the modification to increase the voltage of the drills it was using, and to expand the uses to which the drill could be put. On December13, 2004, MHSA issued a Proposed Decisionand Order denyingthe request to amend and revoking the prior grant ofthe petition.
Petitioner sought in an additional petition filed on May 15, 2003, to use a Leica DISTO laser distance meter at its WestvacoMine near Green River in Sweetwater County, Wyoming. On December 13, 2004,MHSA issued a Proposed Decisionand Order denyingthe petition.
The Petitioner thereafter filed requests for hearingwhich were receivedin the Office of Administrative Law Judges on January 28, 2005 and on Februaryl l, 2005. The cases were subsequently assigned to the undersigned Administrative Law Judge and an Initial Prehearing Order was issued on February 24, 2005 in each case.
On May 16, 2005, the parties submitteda Consent Agreement containing Consent Findings and a ConsentOrder, signed by each party. The ConsentAgreement with Consent Findings and Consent Order are incorporated herein by this reference and are attachedto this Order.
Theparties have agreedthat:
1) The ConsentOrder shall have the same effect as if made after a full hearing.
2) The record on which this Order is based consists of the Petitionand agreement, and all other pertinent information as set forth in Section 44.27(b)(2).
3) 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.
4) In accordance with 30 C.F.R. § 44.27(b)(4), Petitioner agrees to waive any right to challenge or contestthe validity of the ConsentFindings and Consent Order made in accordance with the ConsentAgreement.
5)safety.
The terms and conditions of the Consent Order do not result in a diminution of
6) Theterms 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 thereforethe Consent Order is ACCEPTEDandADOPTEDas the Order of the undersigned. The petitions of FMC Corporation in this matterare therefore DISMISSED.This Order constitutes the final agency action.
Russell D. Pulver Administrative Law Judg
In the matter of:FMC Corporation
Granger and Westvaco Mines
I.D. Nos. 48-00639 & 48-00152
Petitions for Modification
Docket Nos. 2005-MSAcOJ,
2005-MSA-09 and 2005-MSA-11
CONSENT AG REEMENT
On May 2, 1991, FMC Corporation's (Petitioner /Operator) predecessor, Tg Soda Ash, Inc. filed a petition for modification, pursuantto 30 U.S.C. § lOl(c) and 30 C.F.R. § 44.13,of the application of 30 C.F.R. § 57.22305 to its Grangersoda ash mine near Green River, Wyoming. Petitioner sought to use in or beyond thelast open crosscutcertain non permissible tools. Inits petition (No. M-1991-03-M), petitioner requested permission to use a 9.6 volt Makita battery powered cordless drill to installsurveying spads.
Petitioner allegedthat the use of this equipment was an alternative method which would reduce the riskof injury, be just as effective for the purpose utilized,and would at all times guarantee no less than the same measure of protection affordedby the standard. MSHA personnelconducted an investigation of the petition and filed areport of their findingsand recommendations with the Administrator. Based on thefindings and recommendations and other information, the Administrator issueda Proposed Decisionand Order ("PDO") granting the petitionon October 29, 1991.On July 21, 1999, MSHA granted petitioner an amended modification to use equivalent drills to the Makita, for the previously grantedand other applications. On April 27, 2004,the Approval and Certification Center in MSHA'sDirectorate of Technical Support issued an Investigative Report entitled Evaluation of Petitions for Battery Operated Cordless Drills. Based on that report, the Administrator issued a Proposed Decision and Order ("PDQ") revoking the prior grant of the petition, on December 13, 2004.
In anotherpetition (No. M-2000-03-M), petitioner in 2000 sought modification to use thesame or similar drills at its Westvaco mine. Petitioner allegedthat the use of thisequipment was an alternative method which would reduce the risk of injury, be just aseffective for the purposeutilized, and would at all times guaranteeno less than the
same measure of protectionafforded by the standard. MSHA personnel conducted an investigation of the petition and filed a report of their findingsand recommendations with the Administrator. Based on the findings and recommendations and other information, the Administrator issued a ProposedDecision and Order ("PDO") granting the petitionon August 28, 2001. On March 26, 2002, petitioner filed a requestto amend the modification, to increase the voltage of the drills it was using, and to expand the
uses to which the drill could be put. On April 27, 2004, the Approvaland Certification
Center in MSHA's Directorate of Technical Support issued an Investigative Report entitled Evaluation of Petitions for Battery-Operated Cordless Drills. Based on thatreport, the findings and recommendations and other information, the Administratorissued a Proposed Decisionand Order ("PDO") denying the requestto amend, and revoking the prior grant of the petition, on December 13, 2004.
Petitioner sought in an additional petitionfiled on May 15, 2003 (No. M-2003-01-M), touse a Leica DISTO laser distancemeter at its Westvaco mine.Petitioner alleged that theuse of this equipmentwas an alternative method which would reduce the risk of injury, be just as effectivefor the purpose utilized, and would at all times guarantee no less than the same measureof protection affordedby the standard. MSHA personnel conducted an investigation of the petitionand filed a report of their findingsand recommendations with the Administrator. On April 27, 2004, the Approval and Certification Center in MSHA's Directorate of Technical Support issued an InvestigativeReport entitledEvaluation of Petitionsfor Battery-Operated CordlessDrills. Based on that report, the findingsand recommendations and other information, the
Administrator issueda Proposed Decisionand Order ("PDO") denying the petitionon December 13, 2004.
Petitioner disagreed with MSHA's proposedaction in these three cases andrequestedhearings before a Department of Labor Administrative Law Judge, pursuantto 30
C.F.R. § 44.14. The partiesthereafter 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 Granger and WestvacoMines. In accordance with 30 C.F.R. § 44.27(b), this agreement containsConsent Findings and a Consent Order disposingofthe entire proceeding.
CONSENT FINDINGS
ln accordance with 30 C.F.R.§44.27(b)(l), both MSHA and Petitioner agree that the following ConsentOrder 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 recordon which the following Consent Order is based consistsof the petition and agreement, and all otherpertinent information as set forth in Section44.27(b)(2).
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
In accordance with 30 C.F.R. § 44.27(b)(4), Petitioneragrees to waiveany right to challenge or contest the validity of the Consent Findings and Consent Order made in accordance with this Consent Agreement.
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 guaranteeno 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 Safetyand Health, and under § 101(c) of the Federal Mine 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 Grangerand Westvaco Mine is hereby:
GRANTED, subject to the following terms and conditions:
1. Petitioner shall not use nonpermissible electricdrills, including but not limited to any 9.6 volt battery poweredcordless drills manufactured
by Makita or another manufacturer or any equivalentdrills, for anypurpose, in or beyondthe last open crossscut or in any area where methane may enter the air current,such as pillar recovery workings, longwall faces or shortwall faces.
2. Any and all equipmentused in the areas designated in the preceding paragraph 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 at the Westvaco mine: Leica DISTO laser distance meter.
a. Immediately prior to and continuously while using any of theequipment permitted in the preceding paragraph, Petitionershall test for methanein the mine atmosphere, as mine atmosphere is definedin 30 C.F.R.§ 57.2, and as closeto the equipment as possible. Petitionershall test with an approved instrument capableof providing both visual and audible alarms, which has been approved by MSHA pursuantto 30
C.F.R. § 57.22227.
b. Petitioner will immediately cease theuse of such equipment and follow the procedures within 30 C.F.R. §57.22234 whenever1.0 percent or more of methane is detected.
c. Petitioner will ensure that qualified personnel, trained in the requirements of this petition, will physically attend all such equipment wheneverit is located in or beyond the last open crosscut.
d. Batteries containedin the surveying equipment 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 partiesrequest that the presiding Administrative Law Judge issue an Order approving this Consent Agreementincluding the ConsentFindings and the ConsentOrder as a modification of 30 C.F.R.§57.22305 at the Grangerand Westvaco Mines.
GREGORY SHELTON
FMC Corporation P.O.Box 872
Green River,Wy. 82935 (307) 875-2580
HOWARDM. RADZELY
Solicitor of Labor
EDWARDP. CLAIR
Associate Solicitor
MARKR. MALECKI
Counsel for Trial Litigation
TIMOTHY S. WILLIAMS
Counsel for Trial Litigation
U.S. Department of Labor Office of the Solicitor
1100 Wilson Boulevard
Room 2211
Arlington, Virginia22209
Attorneys for Mine Safety andHealth Administration
(202)693-9337
SERVICE SHEETCase Name: MSHA v. FMC CORPORATION
Case Numbers:2005MSA00007, 2005MSA00009, 2005MSA00011
Document Title: Decision and Order ApprovingSettlement and DismissalOrde
I hereby certify that a copy of the above-referenced documentwas sent to the following this 24th day of May, 2005:
VIVIAN CHAN
LEGAL ASSISTANT
GregoryShelton
Sr. Mine EngineerNentilation Supervisor FMC Corporation
P.O. Box 872
GreenRiver, WY 82935
{Hard Copy - Regular Mail}
AlbertBattisti, Chairman
United Steel Workers of America 13214 FMC Corporation
FMC Westvaco Mine
P.O. Box 872
GreenRiver, WY 82935
{Hord Copy - Regular Moil}
Monte Morelock Miners' Representative TG Soda Ash, Inc.
P.O. Box 1315
Rock Springs, WY 82901
{HardCopy - Regular Mail}
Marvin Nichols,Jr. Director
Offc of Standards, Regulations & VariancesMine Safety & Health Administration
1100Wilson Boulevard
Arlington, VA 22209-3939
{Hard Copy - Regular Moil}
Mark Malecki,Esq. CounseJ for Trial Litigation
U.S. Dept. of Labor, Office of the Solicitor Division of Mine Safety& Health
1100 Wilson Blvd., Room 2226
Arlington, VA 22209
{Hard Copy - Regular Mail}
Counsel for Trial Litigation Div. of Mine Safety and Health
U. S. Department of Labor
1100 Wilson Blvd, 22nd Floor East Arlington, VA 22209-224 7
{Hard Copy - Regular Mail}