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CASE NO. 2005-MSA-2
In the Matter of:
McELROY COAL COMPANY, McELROY MINE
Petitioner
V.
MINE SAFETY &HEALTH ADMINISTRATION
Party OpposingPetition and
HOYA CLEMONS(Miners' Representative)
Party-In-Interest
IssueDate: 10 May 2005
DECISION AND ORDER APPROVING SETTLEMENT
and
ORDER OF DISMISSAL
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§§ 951-961and its regulations, 30 C.F.R. Part 44. On January 5, 2004, McElroy Coal Company (Petitioner) petitioned the Mine Safetyand Health Administration (MSHA) for modification of the application of 30 C.F.R. § 75.364(b)(2) and § 75.364(b)(4) to its McElroyMine in Marshall County, West Virginia . .
30 C.F.R. §§ 75.364(b)(2) and (b)(4) state:
(b) Hazardous conditions. At least every 7 days, anexamination for hazardous conditions at the followinglocations shall be made by a certified person designated by the Operator:
(2) In at least one entry of each return air course, in its entirety,so that the entiretravelway is traveled.
(4) At each seal along return and bleeder air coursesand at each seal along intake air courses not examined under § 75.360(b)(5).
On September2, 2004, MSHA denied the petition, statingthe alternative method proposed by the petitioner does not provide for the same measure of protection affordedby the standard. On October18, 2004, the Petitioner filed a requestfor a hearing with the Office of Administrative Law Judges. Subsequently, the case was assigned to the undersigned. A hearing
was scheduled for March 15-17,2005 in Pittsburgh, Pennsylvania. On April 28, 2005,the parties jointly submitted a signed Settlement Agreement and Consent Findings for approval, pursuant to 30 C.F.R. § 44.27.
The parties also agree that:
1.
The record on which this Order is entered includes consideration of the petition, the administrative record, the Proposed Decisionand Order, and the special terms and conditions incorporated into the Agreement;
2.
Any rule or order issued in this proceeding has the same effect as if made after a fullhearing;
3.
They waive any further procedural steps beforethe presiding Administrative Law Judge and the Assistant Secretary; and
4.
The parties agree to waive any right to challengeor contest the validity of the findings and order made in accordance with the Agreement and recognize that this Agreement does not waive any party's right to petitionto revoke this modification pursuantto 30 .C.F.R. §
44.52 should circumstances change.
ORDER
I have carefully examinedthe Settlement Agreementand Consent Findingsbetween the parties. Following that review, I have concludedthat the Settlement Agreement and Consent Findings are consistent with the requirement of 30 C.F.R.§ 44.27, and therefore, are accepted. The petition of McElroy Coal Company in this matter is therefore dismissed. This Order constitutes the final agency action in this matter.
DANIEL L. LELAND
Administrative Law Judge
UNITED STATES DEPARTMENT OF LABOR CASE NO. 2005-MSA-2
In the Matter of
Petition for Modification
MCELROY COAL COMPANY, INC.
Petitioner.
MSHA DOCKETNO. M-2004-001-C
McElroy Mine
SETTLEMENT AGREEMENT AND CONSENT FINDINGS
After discovery, mine visits, and negotiations, the parties have reached an agreement in the above matter. Therefore, the parties submit to the followingagreement and findings:
1.
On January5, 2004, McElroy Coal Company (hereinafter "McElroy" or the petitioner") petitioned the Mine Safety and Health Administration ("MSHA" or "respondent) under Section lOl(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) for a modification of the application of 30 C.F.R. § 75.364(b) (2) and § 75.364(b) (4) to its McElroy Mine, Marshall County, West Virginia. A copy of McElroy's petitionis attached as ExhibitA. In sum, the petitioneralleged that due to a roof fall and a very heavytop, the area outby the No. 1 sealat One North Seals has deteriorated to the point that travelin that areae has become extremely hazardous. Attempts to rehabilitat
those areas would jeopardize the safety of persons working or traveling in those areas. The relevant entriesdo not return air that has passed throughany active workingsection in the mine, thus eliminating the possibility of any float coal dust accumulation. Three citations were issued for the roof conditionsand failure to travel the return in its entiretyand to examine existing seals in the return.
2.
The mandatory safetystandards petitioned to be modified, 30
C. F. R. §75.364(b) (2)and(b)(4), state in pertinent part:
(b) Hazardous conditions.At least every 7 days, an examination for hazardous conditions at the following locations shall be made by a certified person designated by the operator
(b) ( 2)In at least one entry of each returnair course, in its entirety, so that the entire travelway is traveled.
(b) ( 4 )At each seal along return and bleeder air courses and at each seal along intakeair courses not examinedunder §7 5. 36 0 ( b ) ( 5 ) .
3. MSHA examined McElroy's proposal, conducteda field investigation, and issued a ProposedDecision and Order denying the modification petitionon September 2, 2004. At that time,
MSHA concluded that, although rehabilitation of these areas may be considered hazardous, similar rehabilitation projectshad been successfully accomplished at this mine during normal mining operations. For example, when a roof fall had blocked the No. 5 Main Belt Entry it was clearedand rehabilitated without injury to any worker.MSHA was also concerned that, under the proposed alternative method, there was no effectiveevaluation of the seals and the aircourses betweenthe seals and the stoppings separating the track entry to which leakageof noxious and explosive gases could occur. Therefore, on September 2, 2004,
McElroyrequested a hearingon the petition on September 28, 2004.
After a mine visit by MSHA officials on February17, 2005, it was determined that the roof conditions had deteriorated further requiring extensive clean-upand that not all the seals could be evaluatedsafely at that time. Further exchange of discovery had occurred in which McElroy proposed additional measures and, after the most recent minesite visit, MSHA proposed additional measures to addressits safety concerns specific to this mine and its conditions.
4. .Whereby,the parties have resolved theirdispute concerning the petition and agree that McElroymay employ an alternative to complying with 30 C.F.R. §75.364(b) (2) and (b)(4) in the On North Sealsof the McElroy Mine. The alternative method will be asset forth in McElroy's petition as modified with required terms andconditions as follows:
(A)
Air monitoringstations must be established at the following locations:
1.
Station Number 1 shall be located in the air course outby the Number One seal. (See Map, ExhibitA, attached).
2.
Station Number 2 shall be located in the entry toward Main East inby the Number Six seal of One NorthSeals. (See Map, Exhibit A) .
3.
A monitor connectedto the mine-wide monitoring system must be locatedat Station No. 2, in the airflowon the downwind sideof the sealed area as shown on Petitioner' s Exhibit A, and must continuously monitorfor methane and oxygen with
alert levels at 1% methane and alarmlevels at 1.5% methane and 19.5%oxygen.
4.
When alert levelsat the monitor are reached,a certified person must immediately investigate the affected area toevaluate the condition. At alarm levels,power must be de-energized to the adjacent track entry and all minersmust be evacuated from the affectedarea. No minersshall be permitted to enter the area except for those persons necessary to correct the conditions.
5.
If investigation at the alert levels determinesthat the seals are compromised or are not functioning for the intended purposeof separating active areas from the worked-out areas for ventilation purposes, then the areas petitionedmust be resealed in accordance with applicable standards
6.
It is agreedthat the monitorat Station 2 is not tobe considered a designated atmospheric monitoring system under MSHA regulations; however,McElroy agrees to the following:
a)
The monitor utilizedmust be of a type approved by theSecretary of Labor and appropriate for the use for which itis to be installed
b)
The monitor must be installed as part of the McElroy's mine-wide monitoring system suchthat methane and
oxygen will be monitored continuously
c)
The monitor must be installedby qualified persons and must be maintained in safe operating condition.
d)
The monitor must be calibrated every 31 days in accordance with manufacturer specifications, by a qualified person, and with known concentrations of methane and oxygen.
e)
All calibrations and daily examinations of the monitor will be recorded.
f)
If alert or alarm levelsare reached, they will be recorded.
(B)
All monitoringstations and the approaches to such stationsshall at all times, be maintained in a safecondition.
(C)
Tests for methane,oxygen, and quantity and quality of air shallbe determined daily by a certified person at each station. The date, initialsof examiner, time, and resultsof these evaluations shall be recordedin a book, or on a date board, that shall be provided at the monitoringstations. Such resultsshall also be recorded in a book kept on the surfaceand made accessible to all interested parties.
(D)
A diagram showing the normal direction of the air current flow at each station shall be posted at each monitoring station. Such a diagram shall be maintained in a legible condition. Any change in the flow of the air currents shall be reportedto the mine foreman for immediate investigation.
(E)
Methane gas or other harmful,noxious, or poisonous gasesshall not be permitted to accumulate in this airwayin excess of legallimits. An increaseof 0.5 percent methane above thelast previous methanereading shall cause an immediate investigationof the affected area. If, at any time,the air quantity at any of the monitoringstations indicates a change inair quantity of ten percent, an immediate investigation of the affected area shall be conducted.
(F)
The monitoring stationsshall be shownon the mine ventilation map and shall be a part of the approvedventilation plan for the mine.
(G)
McElroy must also have
a certified person
(1)
conduct a dailyinspection of seal six
(2)
take air readingsat monitoring stations 1 and 2 designated in the area as part of a daily examination, and
(3)
conduct a pre-shift examination of the five stoppings that are constructed betweenthe track entry and the seals in question to ensure that there is no migration of noxious or potentially hazardousgas from inby the seals to the track entryarea;and must ensure that:
(4)
The five stoppingareas separating the track entriesand the seals are cleaned of extraneous materialsand have adequate roof support above them to permit adequateaccess
to and examination of the stoppings
(H)
McElroy must install a magnehelic gauge in one of the stoppings, and inspect it as part of the pre-shift inspection and provide immediatenotice of any migration of gases throughthe seals and stoppings.
(I)
Additionally,McElroy must monitorfor the existence of water accumulation by way of a test pipe which is currently in seal six.
3.
The parties and partiesin interest likewise agree that these agreed upon changes to the MSHA conditions are and do assure adequateprotection to minersand will at all times guarantee to the miner at the affectedmines at least the same measure of protection afforded to the miners by the standards set forth in 30 C. F. R. § 75.362(b) (2)and (b)(4).
4.
This Order shallhave the same effect as if made after a full hearing.
5.
The entire recordon which the Order is based shall consist solely of the Settlement Agreement and Consent Findingsand other non-conflicting information included in the petition and the administrative record.
6.
The parties waive any further procedural steps before this Court.
7.
The parties waive any rights to challengeor contest the validity of this order and decisionentered into in accordance with this Settlement Agreement and Consent
Findingsand recognize that this agreement does not waive any party 'sright to petition to revoke this modification pursuant to 30 C. F. R. 44.52 shouldcircumstances change.
Accordingly, the parties herebystipulate and agree that the above-captioned proceedings shall be, and herebyare, dismissed as ordered by the administrative law judge in approving the agreement and consent findings.
Respectfully submitted,
Administrator for Coal Mine Safety and Health
HOWARDRADZELY
Solicitor of Labor
EDWARDP. CLAIR
Associate Solicitor
MARK R. MALECKI
Rodger L. Puz
Counsel for Petitioner
Dickie, McCamey & Chilcote, P.C. Attorney for the Administrator
Two PPG Place, Suite 400 1100 Wilson Blvd., 22nd Floor Arlington,
Pittsburgh, PA 15222 Virginia 22209-2247
Hoya Clemons
For the Party-in-Interest UnitedMine Workers of America
CERTIFICATE OF SERVICE
The undersigned certifies that service of the Settlement Agreement and ConsentFindings of Fact was made by faxsimile by U. S. mail, postage prepaid, on this 15th day of April, 2005. [by original sent by U.S. mail, 1st class on 25th April 2005 JBC]
Rodger L. Puz
Dickie, McCamey & Chilcote. Two PPG Place, Suite 400
Pittsburgh, Pennsylvania 15222-5402
Hoya Clemons
Miners' Representative 3509 Wood Street