U.S. Department of Labor Office of Administrative Law Judges
Seven ParkwayCenter - Room 290 Pittsburgh, PA 15220
(412) 644-5754
(412) 644-5005(FAX)
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
Issue Date: 10 May 2005
DECISION AND ORDER APPROVING SETTLEMENT
and
ORDER OF DISMISSAL
This matter arises under the FederalMine Safety and Health Act of 1977, 30 U.S.C.
§§ 951-961 and its regulations, 30 C.F.R. Part 44. OnJanuary 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, an examination for hazardous conditions at the following locationsshall be made by acertified person designatedby the Operator:
(2) In at least one entry of each returnair course, in its entirety,so that the entiretravelway is traveled.
(4) At each seal along return and bleeder air courses and 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 October 18, 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 scheduledfor March 15-17,2005 in Pittsburgh, Pennsylvania. OnApril 28, 2005,the parties jointly submitted a signedSettlement 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 ProposedDecision and 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 full hearing;
3. They waive any further procedural steps before the presiding Administrative Law Judge and the AssistantSecretary; and
4. The partiesagree 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 theparties. Following that review, I have concludedthat the Settlement Agreement and ConsentFindings are consistent with the requirement of 30 C.F.R.§ 44.27, and therefore, are accepted.The petitionof McElroy Coal Company in this matter is therefore dismissed. This Orderconstitutes the final agency action in this matter.
DANIEL L. LELAND
Administrative Law Judge
UNITED STATESDEPARTMENT OF LABOR
CASE NO. 2005-MSA-2
In the Matter of
Petition for Modification
MCELROY COAL COMPANY, INC. MSHA DOCKET NO. M-2004-001-C
Petitioner. 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 following agreement and findings:
1. On January 5, 2004, McElroy Coal Company (hereinafter "McElroy" or the petitioner") petitioned the Mine Safety and Health Administration ("MSHA" or "respondent) under Section 101(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 petition is attached as Exhibit A. In sum, the petitioner alleged that due to a roof fall and a very heavy top, the area outby the No. 1 seal at One North Seals has deteriorated to the point that travel in that area has become extremely hazardous. Attempts to rehabilitate
those areas would jeopardize the safety of persons working or traveling in those areas. The relevant entries do not return air that has passed through any active working section in the mine, thus eliminating the possibility of any float coal dust accumulation. Three citations were issued for the roof conditions and failure to travel the return in its entirety and to examine existing seals in the return.
2. The mandatory safety standards 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 return air 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 intake air courses not examined under § 75.360(b)(5).
3. MSHA examined McElroy's proposal, conducted a field investigation, and issued a Proposed Decision and Order denying the modification petition on September 2, 2004. At that time,
MSHAconcluded 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 September2, 2004, McElroyrequested a hearingon the petition on September 28, 2004.
After a mine visit by MSHA officials on February17, 2005, itwas determined that the roof conditions had deteriorated further requiringextensive clean-up and that not all the seals could be evaluated safelyat that time. Further exchange of discovery had occurred in which McElroy proposed additional measures and, after the most recent minesite visit, MSHA proposed additional measuresto address its safety concerns specific to thismine 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 One
North Seals of the McElroy Mine. The alternative method will be as set forth in McElroy's petition as modified with required terms and conditions as follows:
(A) Air monitoring stationsmust be establishedat the following locations:
1. Station Number 1 shall be locatedin the air course outby the NumberOne seal. (See Map, ExhibitA, attached).
2. Station Number 2 shallbe located in the entry toward Main East inby the Number Six seal of One NorthSeals. (SeeMap, Exhibit A) .
3. Amonitor connected to the mine-wide monitoring system must be locatedat Station No. 2, in the airflowon the downwind side of the sealedarea as shownon Petitioner' s Exhibit A, and must continuously monitor for methaneand oxygen with alert levels at 1% methane and alarmlevels at 1.5% methane and 19.5% oxygen.
4. Whenalert levels at the monitorare reached, a certified person must immediately investigate the affectedarea to evaluate 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 thosepersons necessary to correct the conditions.
5. Ifinvestigation at the alert levels determines that theseals 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. Itis agreed that the monitorat Station 2 is not to be considered a designated atmospheric monitoring system under MSHA regulations; however,McElroy agrees to the following:
a) The monitorutilized must be of a type approvedby theSecretary of Labor and appropriate for the use for which it is to be installed.
b) The monitormust be installed as part of the McElroy's mine-wide monitoring system such thatmethane and
oxygen will be monitored continuously.
c) Themonitor must be installed by qualifiedpersons 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) Allcalibrations and daily examinations of the monitor will be recorded.
f) Ifalert or alarm levels are reached, they will be recorded.
(B) Allmonitoring stationsand the approaches to such stations shall 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 otherharmful, noxious, or poisonous gases shall not be permitted to accumulate in this airwayin excess of legal limits.An increase of 0.5 percentmethane above the last previousmethane reading shallcause an immediate investigationof the affected area. If, at any time,the air quantity at any of the monitoring stationsindicates a change in air quantity of ten percent, an immediate investigation of the affected area shallbe conducted.
(F) The monitoring stations shall be shown on the mine ventilation map and shall be a partof the approved ventilation plan for the mine.
(G) McElroy must also have:
a certified person
(1) conduct a daily inspection of seal six,
(2) take air readings at monitoring stations 1 and 2 designated in the area as part of a daily examination, an
(3) conduct a pre-shift examination of the fivestoppings thatare constructed betweenthe track entry and the seals inquestion to ensurethat there is no migration of noxious orpotentially hazardous gas from inby the seals to the track entryarea;and must ensure that:
(4) The five stopping areas 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 installa magnehelic gauge in one of the stoppings, and inspect it as part of the pre-shift inspection and provide immediate notice of any migration of gases throughthe seals andstoppings.
(I) Additionally, McElroy must monitorfor the existence of water accumulation by way of a test pipe which is currently in seal six.
5. Theparties and parties in 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 affected mines at least the same
measure of protection affordedto the minersby the standards set forth in 30 C. F. R. § 75.362(b) (2)and (b)(4).
6. ThisOrder shall have the same effect as if made after a full hearing.
7. Theentire record on which the Order is based shall consist solely of the Settlement Agreement and Consent Findingsand other non-conflicting information includedin the petition and the administrative record.
8. The parties waive any further procedural steps before this Court.
9. Theparties waive any rights to challenge or contest the validity of this order and decisionentered into in accordance with this Settlement Agreement and Consent
Findings and recognize that this agreement does not waive any
party 's right to petition to revoke this modification pursuant to 30 C. F. R. 44.52should circumstances 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
HOWARD RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor
MARK R. MALECKI
Counsel for Trial Litigation
Rodger L. Puz JAMES B. CRAWFORD Date: 4/14/05
Counsel for Petitioner Attorney for the Administrator
Dickie, McCamey & Chilcote, P.C.
Two PPG Place, Suite 400, 1100 Wilson Blvd., 22nd Floor
Pittsburgh, PA 15222 Arlington, Virginia 22209-2247
Hoya Clemons Date: 04/14/05
For the Party-in-Interest United Mine Workersof America
CERTIFICATE OF SERVICE
The undersigned certifies that service of the Settlement Agreement and Consent Findings of Fact was made by facsimile and by U. S. mail, postage prepaid, on this 15th day of April, 2005, upon [facsimile by original sent by U.S. mail, 1st Class on 25th April 2005 JCC]
RodgerL. Puz
Dickie, McCamey& Chilcote.
Two PPG Place, Suite 400
Pittsburgh, Pennsylvania 15222-5402
Hoya Clemons
Miners' Representative
3509 Wood Street
Wheeling, WV 26003
James B. Crawford
Trial Attorney