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[DOCID: f:pn200021.wais]
ROSEBUD MINING COMPANY
February 1, 2000
PENN 2000-21-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 1, 2000
ROSEBUD MINING COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. PENN 2000-21-R
: Citation No. 7042925; 10/5/99
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. PENN 2000-22-R
ADMINISTRATION (MSHA), : Citation No. 7042926; 10/5/99
Respondent :
: Josephine No. 3
: Mine ID 36-08719
DECISION
Appearances: Joseph A. Yuhas, Esq., Northern Cambria,
Pennsylvania, for the Contestant;
Pam E. DiFillippo, Esq., Merna Butkovitz, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Petitioner.
Before: Judge Feldman
Before me for consideration is a notice of contest with
respect to Citation Nos. 7042925 and 7042926 filed by Rosebud
Mining Company (Rosebud) against the Secretary of Labor (the
Secretary) and the Mine Safety and Health Administration (MSHA)
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977 (the Mine Act), 30 U.S.C. � 815. Rosebud challenges the
propriety of the subject citations that allege violations of the
mandatory safety standard in section 75.1710-1(a), 30 C.F.R.
� 75.1710-1(a).[1]
The citations were issued because the tram station canopy
and the roof bolting station canopy installed on the Long-Airdox
roof bolting machines, serial numbers 62-873 and 62-874, model
LRB-15-AR, operating in low seam coal in the first north butt
002-0 working section, allegedly were not protecting certain
operators from falls of the roof/ribs when the operators were at
the operating controls. The Secretary characterized the cited
conditions as significant and substantial (S&S) in nature.
The operators of the cited Long-Airdox roof bolting machines
remain under supported roof at all times, even when under the
cited canopies. As a general proposition, the canopies in
question were adequate to protect roof bolt operators of average
build. However, portions of the bodies of stouter roof bolt
operators extended beyond the perimeters of the canopies.
Consequently, the degree of negligence attributable to Rosebud
for the cited violative conditions was considered to be low
because the alleged violations were not obvious unless a
physically larger roof bolter operator was operating the machine.
The Secretary concedes that her mandatory safety standards
do not prohibit miners from traversing, without the protection of
any canopies, the vicinity of the supported roof areas where the
cited roof bolting machines were operating. In fact these areas
are traversed on a daily basis during pre-shift and on-shift
examinations.
Rosebud's contest is based on its assertion that the Long-
Airdox model LRB-15-AR roof bolting machines have been in
operation for more than 15 years without incident. Rosebud is
reluctant to install extensions on the canopies because it
believes larger canopies extending beyond the frame of the roof
bolting machines will hamper the machines' maneuverability in low
seam coal mining.
A hearing in these contest proceedings was conducted in
Pittsburgh, Pennsylvania, on December 16, 1999. Upon completion
of the Secretary's direct case, a settlement conference was
conducted with the parties' counsel. After conferring with their
clients, counsel advised that they had reached a settlement
agreement. The terms of their agreement was presented and
approved on the record. (Tr. 227-50). This decision formalizes
the settlement terms.
Rosebud has agreed to withdraw its notices of contests for
Citation Nos. 7042925 and 7042926. In addition, on or before
March 16, 2000, Rosebud will install extended tram station
canopies and roof bolting station canopies on the cited Long-
Airdox roof bolting machines. Specifically, the tram station
canopy will be extended by approximately 10 inches, and the roof
bolting station canopy will be extended by approximately 9
inches. In addition, the drill controls on both machines will be
moved forward approximately 10 inches to afford the operator with
more overhead protection from the canopy.
In return, MSHA has agreed to extend the abatement period
for the subject citations until March 16, 2000. In addition, the
Secretary has agreed not to impose any civil penalty for these
citations. Finally, MSHA reserves the right to evaluate these
modifications to ensure that they provide adequate protection.
**FOOTNOTES**
[1] Section 75.1710-1(a) provides, in pertinent part, that
"canopies . . . [shall be] installed in such a manner that when
the operator is at the operating controls of [self-propelled
face] equipment he shall be protected from falls of roof, face,
or rib, or from rib and face rolls."
ORDER
In view of the above, the contestant's withdrawal of its
notices of contest for
Citation Nos. 7042925 and 7042926 IS GRANTED and the terms of the
settlement agreement specified above ARE APPROVED. Accordingly,
the contest proceedings in Docket Nos. PENN 2000-21-R and PENN
2000-22-R ARE DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Joseph A. Yuhas, Esq., P.O. Box 1025, Northern Cambria, PA 15714
(Certified Mail)
Pam E. DeFillippo, Esq. Office of the Solicitor, U.S. Department
of Labor, Gateway Bldg.,
Rm. 14480, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)
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