McElroy Coal Co. v.
MSHA, 1998-ERA-19 (ALJ Dec. 16, 1999)
U.S. Department of
Labor
Office of Administrative Law Judges Seven Parkway Center - Room
290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
DATE ISSUED: December 16, 1999
CASE NO. 1999-MSA-8
OALJ NO. M-1997-101-C MSA
In the Matter of:
MCELROY COAL COMPANY,
MCELROY MINE,
Petitioner
v.
MINE SAFETY AND HEALTH ADMINISTRATION,
Respondent
and
UNITED MINE WORKERS OF AMERICA,
Party-in-Interest
DECISION APPROVING SETTLEMENT AND DISMISSAL
ORDER
On September 5, 1997, McElroy Coal Company
(hereinafter "McElroy" or the "petitioner") petitioned the Mine Safety and
Health Administration ("MSHA" or
"respondent") for a modification of the application of 30 C.F.R. § 75.312(c) to its
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McElroy Mine, Marshall County, West Virginia. It filed a second modification application,
concerning 30 C.F.R. § 75.312(d), on September 12, 1997. On December 16, 1998, McElroy
filed an amendment concerning switches to alert operators when a fan slows or stops. These requests
for modification were consolidated into one docket by the MSHA.
30 C.F.R. § 75.312(c) and (d) state, in pertinent part:
(c) At least every 31 days, the automatic fan signal device for each main mine fan shall
be tested by stopping the fan . . .
(d) At least every 31 days, the automatic closing doors in multiple main mine fan
systems shall be tested by stopping the fan . . .
The MSHA examined McElroy's
proposal and issued a Proposed Decision and Order approving the modification petitions with
conditions, on May 7, 1999. McElroy challenged, in a partial appeal, two of the conditions set forth,
items (2) and (5), for MSHA approval of its proposal:
2. The air flow reversal prevention door(s) shall be tested at least every seven (7)
calendar days by rotating the test frame outward from its latched position until it
contacts the flow reversal prevention door. Rotation of the test frame shall also rotate
the bearings hinging the air flow reversal prevention door.
5. The mechanical automatic fan signal device shall be tested at least twice every
seven (7) calendar days by actuating the switch mounted to the fan housing to verify
that it activates the relay in the fan monitoring panel.
On the date set for hearing, December 14, 1999, the
parties resolved their dispute concerning the petition and submitted an agreement containing consent
findings, in accordance with 30 C.F.R. § 44.27. A copy of the agreement is attached and
incorporated herein. I have carefully examined the agreement and approve it based upon the agreed
findings therein.
ORDER
WHEREFORE, it is ordered that the agreement
containing the consent findings is accepted and the Petition of McElroy Coal Company/McElroy
Mine in the above-styled matter is dismissed. This Order constitutes the final agency action.
Atch: Agreement
RICHARD A. MORGAN
Administrative Law Judge
RAM:dmr
DATE ISSUED: December 16, 1999
CASE NO. 1999-MSA-8
OALJ NO. M-1997-101-C MSA
In the Matter of:
MCELROY COAL COMPANY,
MCELROY MINE,
Petitioner
v.
MINE SAFETY AND HEALTH ADMINISTRATION,
Respondent
and
UNITED MINE WORKERS OF AMERICA,
Party-in-Interest
SETTLEMENT AGREEMENT AND CONSENT
FINDINGS
The parties have reached an agreement in the above
matter. The parties agree to the following stipulations:
(1) On September 5, 1997, McElroy Coal Company (hereinafter "McElroy" or the
"petitioner") petitioned the Mine Safety and Health Administration ("MSHA"
or "respondent") for a modification of the application of 30 C.F.R. § 75.312(c) to
its McElroy Mine, Marshall County, West Virginia. It filed a second modification application,
concerning 30 C.F.R. § 75.312(d), on September 12, 1997. On December 16, 1998, McElroy
filed an amendment concerning switches to alert operators when a fan slows or stops. These requests
for modification were consolidated into one docket by the MSHA.
(2) 30 C.F.R. § 75.312(c) and (d) state, in pertinent part:
(c) At least every 31 days, the automatic fan signal device for each main mine fan
shall be tested by stopping the fan . . .
(d) At least every 31 days, the automatic closing doors in multiple main mine fan
systems shall be tested by stopping the fan . . .
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(3) MSHA examined McElroy's proposal and issued a
Proposed Decision and Order approving the modification petitions with conditions, on May 7, 1999.
McElroy now challenges two of the conditions set forth, items (2) and (5), for MSHA approval of its
proposal:
2. The air flow reversal prevention door(s) shall be tested at least every seven (7)
calendar days by rotating the test frame outward from its latched position until it
it contacts the flow reversal prevention door. Rotation of the test frame shall also
rotate the bearings hinging the air flow reversal prevention door.
5. The mechanical automatic fan signal device shall be tested at least once every
seven (7) calendar days by actuating the switch mounted to the fan housing to
verify that it activates the relay in the fan monitoring panel.
(4) The parties have resolved their dispute concerning the petition and agree that the MSHA
conditions will be and are modified, as follows:
2. Air flow reversal prevention door(s) tests.
(A) The air flow reversal prevention door(s) shall be tested at least every seven
(7) calendar days for one year from the time inspected by MSHA under paragraph
7 of the PDO by rotating the test frame outward from its latched position until it
contacts the flow reversal prevention door.("Initial Test Period") Rotation of the
test frame shall also rotate the shaft and bearings hinging the air flow reversal
prevention door. A person conducting the test must be able to visually observe
the movement of the test frame and to visually observe the rotation of the attached
shaft. After the Initial Test Period, MSHA shall evaluate the test frame system,
and unless a major problem with the system is determined by MSHA, the test
frequency shall change to every 31 days.
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(B) The air flow reversal prevention door(s) shall be tested every five to seven months
by stopping the fan motor(s) to ensure the door(s) automatically close when the fan
shuts down.
5. Mechanical automatic fan signal device tests.
(A) The mechanical automatic fan signal device shall be tested during the Initial
Test Period by actuating the switch mounted to the fan housing to verify that
it activates the relay in the fan monitoring panel. This switch actuation shall occur
by moving the test frame assembly so that it contacts the fan signal switch. After
the year of seven (7) day testing all parties shall evaluate the fan signal device
setup, and unless a major problem with the system is determined by MSHA, the
test frequency shall change to every 31 days.
(B) The mechanical automatic fan signal device shall be tested every five (5) to
seven (7) months each year by stopping the fan motor(s) to ensure that it activates
the relay in the fan monitoring panel.
(5) In addition, for clarification purposes the parties agree that the language in PDO condition 1
be changed to replace the word "hinged" with the word "attached" and the
phrase "(nearly horizontal)" be removed. PDO condition 4 language shall be changed to
reflect that " the relay shall activate a visible warning light near the door location and shall
provide an alarm which is audible and visible at the dispatcher station. PDO condition 7 shall require
notice to the district manager as described "so that an inspection will be scheduled prior to
conducting the 7 day testing as allowed by this PDO.
(6) The parties and parties in interest likewise agree that these agreed upon changes to the MSHA
conditions are and do assure adequate protection to miners and will at all times guarantee to the
miners at the affected mines at least the same measure of protection afforded to the miners by the
standards set forth in 30 C.F.R. § 75.312(c) and (d).
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(7) This Order shall have the same effect as if made
after a full hearing.
(8) The entire record on which the Order is based shall consist solely of the Settlement
Agreement and Consent Findings and other pertinent information.
(9) The parties waive any further procedural steps before this Court.
(10) The parties waive any rights to challenge or contest the validity of this Order and decision
entered into in accordance with this Settlement Agreement and Consent Findings.
Accordingly, the parties hereby stipulate and agree
that the above-captioned proceedings shall be, and hereby are, dismissed.
For the Petitioner Date
McElroy Coal Company
For the Respondent Date
Mine Safety & Health Administration
For the Party-in-Interest Date
United Mine Workers of America
Based on the foregoing and under the authority of 44
C.F.R. § 44.27, I hereby approve the settlement and consent findings and order that its
provisions amend the Administrator's Proposed Decision and Order.
