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Petition - Docket No. M-96-129-C

In the matter of
Straight Creek Mining, Inc.
No. 1 Mine
l.D. No. 40-02353
Petition for Modification

Docket No. M-96-129-C

Date Issued: 09/12/1997

PROPOSED ORDER OF DISMISSAL

On October 9, 1996, Straight Creek Mining, Inc. filed a petition pursuant to 101{c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. sec. 811(c), and 30 CFR 44 et seq., for the modification of the application of 30 CFR 75.360(a)(1), a mandatory safety standard. At the time the petition was filed, 30 CFR 75.360(a)(1) required preshift examinations "... within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground. "The mine in question has production shifts of 8 and one-half hours. The Petitioner alleges that application of the standard would require the section foremen, who are also the mine's certified examiners, to remove themselves from the face areas for an extended period during the production shift to conduct an additional preshift examination of the entire mine. Further, the Petitioner alleges that application of the standard diminishes the safety of miners by absenting the section foremen from their section for periods up to 2 hours and that waiving the preshift would provide at least the same measure of protection afforded miners as the standard. The Petitioner proposes to make a preshift immediately prior to the shift starting and continue the working shift for 8 and one half hours without an additional preshift being conducted.

On June 17, 1997, the United States Court of Appeals for the District of Columbia Circuit issued its final opinion in National Mining Association v. Mine Safety and Health Administration and Secretary of Labor, United Mine Workers of America. International Union. Intervenor (D.C. Cir.No. 921288, consolidated with Nos. 92-1289, 92-1290, 96-1150, 96-1155). In effect, the Court upheld the provisions of the 1992 ventilation rule, as revised in 1996, with one exception. While strongly suggesting that it would uphold 30 CFR 75.360(a)(1) on substantive grounds, the Court ruled that the provision was invalid on procedural grounds.

As a result of the court decision, the frequency for conducting preshift examinations under 30 CFR 75.360(a)(l) is the frequency that was required under the regulation preceding the invalidated provision. That is, a preshift examination is now required prior to any shift during which any person is scheduled to work or travel underground rather than at "8-hour intervals."To implement the Court's ruling and clarify the provision which is now in effect, on June 30, 1997, MSHA published a Federal Register notice administratively revising 30 CFR 75.360(a)(l) to read as follows:

Except as provided in paragraph (a)(2) of this section, a certified person designated by the operator shall make a preshift examination within 3 hours preceding the beginning of any shift during which any person is scheduled to work or travel underground. No persons other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the shift.

Because the language of the regulation implementing the court decision now perm.its the Petitioner to conduct one preshift prior to the entire 8 and one-half hour shift, as petitioned, the petition is moot.

Therefore, pursuant to the authority delegated by the Secretary of Labor to the Administrator for Coal Mine Safety and Health, Straight Creek Mining, Inc.'s Petition for Modification of 30 CFR 75.360(a)(l) to its No. 1 Mine is dismissed without prejudice.

Any party to this action desiring a hearing on this matter must file in accordance with 30 CFR 44 within 30 days. The request for hearing must be filed with the Administrator for Coal Mine Safety and Health, 4015

https://arlweb.msha.gov/PETITIONS/M96129C.htm 1/2
7/11/2017 Mine Safety and Health Adminis1ration (MSHA) - Petitions for Modification - Finalized Petitions: Straight Creek Mining, Inc. No. 1 Mine l.D. No. 4...
Wilson Boulevard, Arlington, Virginia 22203.

If a hearing is requested, the request shall contain a concise summary of position on the issues of fact or law desired to be raised by the party requesting the hearing, including specific objections to the proposed decision. A party other than Petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition, and any party to this action requesting a hearing may indicate a desired hearing site. If no request for a hearing is filed within 30 days after service thereof, the Order of Dismissal will become final.

Allyn Davis
Chief, Division of Safety Coal Mine Safety and Health