[DOCID: f:w-94-699.wais] FMC WYOMING CORPORATION May 2, 1996 WEST 94-699-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1244 SPEER BOULEVARD #280 DENVER, CO 80204-3582 303-844-3993/FAX 303-844-5268 May 2, 1996 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. WEST 94-699-M Petitioner : A.C. No. 48-00152-05639 : 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, P.C., 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, FMC Wyoming Corpo- ration (FMC), the operator of the Trona Mine with the violation of two regulatory safety standards set forth in Part 57 Title 30 Code of Federal Regulations. The operator filed a timely answer contending there were no violations of the cited safety standards. Pursuant to notice to the parties, the matter came up for hearing at Salt Lake City on April 2, 1996. Citation No. 4405834 alleges a violation of 30 C.F.R. § 57.14107(a) which requires the guarding of moving machine parts. At the hearing, counsel for the Secretary, after viewing pictures of the affected area, stated for the record that Cita- tion No. 4405834 was being vacated. He explained on the record the reason why it was determined that the citation should be vacated. The coupling and drive shaft between the motor and the hoist was indeed guarded but there was a close question whether it was adequately guarded. At the hearing, after viewing the picture of the guard and its related drive shaft and the coupling, the par- ties agreed the citation should be vacated. Originally this docket included Citation No. 4125239 which charged the operator with the violation of 30 C.F.R. § 57.5050 involving exposure limits for noise. This citation was vacated by MSHA. ORDER Both Citation Nos. 4405834 and 4125239 are VACATED and 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., VAN COTT, BAGLEY, CORNWALL & McCARTHY, P.C., 50 South Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT 84145 (Certified Mail) /sh