FMC Wyoming Corporation

Plain-English summary

FMC Wyoming operated the underground FMC Trona Mine, where MSHA cited nonpermissible proximity switches at the top of a hoist shaft under 30 C.F.R. § 57.22305. The judge found that the switches were not maintained in permissible condition, but the methane readings near them were below one percent, making an explosion reasonably unlikely. The decision vacated one order, changed the citation to non-S&S and affirmed it as modified, and assessed a $100 civil penalty. The order directed FMC to pay the penalty within 30 days, after which the case would be dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.22305
• Outcome: One order was vacated, one citation was modified to remove the S&S finding and affirmed as modified, and a $100 penalty was assessed.
• Key point: A permissibility violation was established, but the methane evidence did not support a significant-and-substantial designation.

Full text (FMSHRC public release)

[DOCID: f:w-95-188.wais]

FMC WYOMING CORPORATION
May 13, 1996
WEST 95-188-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1244 SPEER BOULEVARD #280
                  DENVER, CO 80204-3582
              303-844-3993/FAX 303-844-5268


                      May 13, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-188-M
Petitioner : A.C. No. 48-00152-05644
:
v. : FMC - Trona Mine
:
FMC WYOMING CORPORATION, :
Respondent :

                         DECISION

Appearances: Robert Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner; Matthew F. McNulty, III, Esq.,
Salt Lake City, Utah, for Respondent.

Before: Judge Cetti

 This case is before me upon a petition for assessment of

civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health Ad-
ministration, (MSHA), charged the Respondent, the operator of
Trona Mine, with a permissibility violation of mine safety
standards set forth in 30 C.F.R. � 57.22305.

 The operator filed a timely answer contesting the alleged

violation and the amount of the proposed penalty. This matter,
originally noticed for hearing to be held on April 3, 1996, but
was by oral stipulation of the parties and consent of the Judge,
it was heard on April 2, 1996, in Salt Lake City where other
cases involving the same parties were heard.

 The Trona mine is a large underground mine.  The mine has a

level horizontal body of ore with approximately 1,500 to 1,600
feet of cover. MSHA charged that the proximity switches for the
number 4 hoist located at the top of the number 4 shaft were not
maintained in permissible condition as required by 30 C.F.R.
� 57.22305.

 At the hearing, counsel for the Secretary stated the issues

with respect to the permissibility violation alleged in Citation
No. 4338843, were (1) whether or not there was a violation of the
safety standard and (2) if there was a violation, whether or not
the violation was significant and substantial and (3) the appro-
priate penalty.

The Secretary presented the testimony of the MSHA mine in-
spector, Danny Frey, who issued the citation in question.
He testified the Trona mine was a large underground mine.
The mine releases some methane gas during the mining
process. Frey stated if the methane is not properly
controlled, there can be an explosion hazard. To have an
explosion, there must be 5 to 15 percent methane in the
mine atmosphere and the oxygen content can be as low as
12 percent and of course, there must be an ignition source.
The mine is a gassy mine that liberates more than one
million cubic feet of methane in 24 hours and is subject
to spot inspection on a five day interval under � 103(i)
of the Act. The mine has a forced air ventilation system.
The shaft, in question, is used for hoisting muck from the
mine. It's not a man hoist and is not used to transport
miners. It is used to expel the return (exhaust) air from
the mine. This shaft extended from the surface of the mine
to the mine workings some 1,500 to 1,600 feet below. The
return air enters the No. 4 shaft at the bottom of the shaft
and goes straight up through the vertical shaft, in question,
into the atmosphere at the surface. The switches, in question,
are located above ground level. The switches, never-theless,
are required to be permissible because the exhaust air as it
comes out of the shaft has the potential of containing
methane. Since the switches were not permissible, there was
a violation of 30 C.F.R. � 57.22305. The primary question
re-maining was whether the violation was properly designated
S&S.

 The inspector took readings of the methane content of

the exhaust air as it entered the bottom of the No. 4 shaft
approxi- mately 1,500 to 1,600 feet below the location of the
proximity switches. The inspector on cross-examination
testified that using the methane readings obtained, there
was not enough methane content in the return air at the
proximity switches to have an ignition or explosion. There
would have to be a minimum of 5 percent methane content to
have an explosion and the methane readings obtained shows
the methane content of the exhaust air to be less than 1
percent. (Govt. Ex. 1 & 2). Consequently, the likelihood
of an explosion was remote rather than reasonably likely.

 After all the evidence was presented, there was an off

the record discussion of the evidence and it was agreed and
stated for the record that based upon the evidence presented
at the hearing that Citation No. 4339843 should be
classified as non S&S. This conclusion was based on the
lack of evidence of sufficient methane in the area of the
proximity switches to create a reasonable likelihood that the
hazard contributed would result in an injury of a reasonable
serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).

 Upon consideration of the statutory criteria in section

110(i) of the Mine Act, the appropriate penalty of this
violation of the cited safety standard is $100.

Order 4338895 issued September 9, 1994, is vacated at the
request of Petitioner as it is now believed an extension of
the abatement period should have been issued rather than a
104(b) order since the operator was moving towards
compliance.

                     ORDER

In view of the foregoing, Order No. 4338893 is VACATED;
Citation No. 4338834 is modified to delete the S&S finding
and as so modified the citation is AFFIRMED. FMC shall pay
a civil penalty of $100 to the Secretary of Labor within 30
days of the date of this order. Upon receipt of payment,
this case is dismissed.

                     August F. Cetti
                     Administrative Law Judge

Distribution:

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

Matthew F. McNulty, III, Esq., Eric E. Vernon, Esq., 50 South
Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT 84145
(Certified Mail)

/sh