Southern Ohio Coal Company

Plain-English summary

Southern Ohio Coal Company operated the Meigs No. 2 Mine. Judge Avram Weisberger found that respirable dust sampling in an active longwall panel produced a three-day cumulative average of 2.1 milligrams per cubic meter, exceeding the 2.0 limit in 30 C.F.R. § 70.100. He found that MSHA’s testing method was reasonable and that the violation was significant and substantial. The judge assessed low negligence, moderate seriousness, and a $259 civil penalty. The company was ordered to pay within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. § 70.100, § 70.2, § 70.201(c), § 70.205(b), and § 70.207(d)
• Outcome: The respirable dust citation was affirmed as significant and substantial, with a $259 civil penalty.
• Key point: The judge upheld the cumulative sampling method after finding that MSHA reasonably discontinued testing one low-exposure occupation while continuing to test dustier occupations.

Full text (FMSHRC public release)

CCASE:
SO OHIO COAL V. SOL, SOL V. SO OHIO COAL
DDATE:
19880728
TTEXT:

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           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          FALLS CHURCH, VA
                           July 28, 1988

SOUTHERN OHIO COAL COMPANY CONTEST PROCEEDING
Contestant
v. Docket No. LAKE 87-95-R
Citation No. 2945843; 7/22/87
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Meigs No. 2 Mine
ADMINISTRATION (MSHA), Mine ID 33-01173
Respondent

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) Docket No. LAKE 88-26
Petitioner A. C. No. 33-01173-03743
v.
Meigs No. 2 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent

                          DECISION

Appearances: David A. Laing, Esq., Porter, Wright, Morris & Arthur
Columbus, Ohio, for the Operator Patrick M. Zohn, Esq.,
Office of the Solicitor, U. S. Department of Labor,
Cleveland, Ohio, for the Secretary.

Before: Judge Weisberger

Statement of the Case

 In these consolidated cases, the Operator (Respondent) seeks to

challenge a citation issued to it by the Secretary (Petitioner) for an
alleged violation of 30 C.F.R $ 70.100, and the Secretary seeks a civil
penalty for the alleged violation by the operator of section 70.100, supra.
Pursuant to notice, these cases were heard in Wheeling, West Virginia, on
April 19 20, 1988. Patrick Lester McMahor, Marion D. Beck, and Judith
Irene Johnson testified for Petitioner, and David George Zatezalo, Jon
Merrifield, and Mark Randall Hatten testified for Respondent.

 At the hearing, at the conclusion of Petitioner's case, Respondent

made a motion for summary decision, which was denied. Petitioner filed
its Post Trial Brief and Proposed Findings of Fact on June 13, 1988, and
Respondent filed its Proposed Findings of Fact and Brief on June 10, 1988.
Reply Briefs were filed by both Parties on June 27, 1988.

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Issues

 The issues are whether Respondent violated 30 C.F.R. $ 75.100, and if

so, whether the violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine safety or health
hazard. If section 75.100, supra, has been violated, it will be necessary
to determine the appropriate civil penalty to be assessed in accordance
with section 110(i) of the Federal Mine Safety and Health Act of 1977.

Stipulations

 The Parties have stipulated as follows:

 1.   The Federal Mine Safety and Health Review Commission has

jurisdiction over this proceeding.

 2.    The Southern Ohio Coal Company is a large operator.

 3.   The Meigs No. 2 Mine is owned and operated by the Southern

Ohio Coal Company.

 4.   The Southern Ohio Coal Company is an operator as defined by

section 3(d) of the Act.

 5.    The Meigs No. 2 Mine is a mine as defined by section 3(h) of

the Act.

 6.   The Southern Ohio Coal Company and the Meigs No. 2. Mine are

subject to the jurisdiction of this Court and the 1977 Mine Act.

 7.   The size of the proposed penalty, if any assessed, will not

affect the operator's ability to continue in business.

Findings of Fact and Conclusions of Law

                          I.

 The essential facts are not in dispute. Patrick Lester McMahon, a

MSHA Inspector who is a health specialist, made a technical inspection at
Respondent's Meigs No. 2 Mine, at the southwest block third panel. On
July 15, 1987, at that time, the longwall panel was only in its third
shift. Inspector McMahon testified at length as to the procedures he
used in setting up the test equipment and as to the equipment itself. No
evidence was adduced to either contradict McMahon's testimony as to the
procedures he used in setting up the equipment, nor was any

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evidence adduced which would tend to impeach either the reliability of
McMahon's methods, or the reliability of the equipment he used. McMahon
furnished the test equipment to be worn, for 8 hours, by miners with the
following occupations: headgate operator intake, 040; jack operator
intake, 041; shear operator intake (head), 064; shear operator return
(tail), 044; jack setter return, 041. The shear operator return was
considered to be the "designated" occupation in this group as being exposed
to the most dust on the longwall operation. At the end of the shift,
McMahon collected the equipment containing the dust samples and returned to
the MSHA Office. McMahon testified in detail concerning the nature of the
equipment used to test the dust samples, the procedures that he used in
setting up the equipment, and in testing the samples. No evidence was
adduced which contradicted McMahon's testimony as to the procedures he
performed. Nor was any evidence adduced which would tend to impeach the
reliability of either the procedures or equipment used by McMahon
in testing the samples. Accordingly, I find that the dust sample results
obtained by McMahon on July 15 to be reliable. These indicate the
following milligrams of dust per cubic meter for the following occupations
in the section:

      shear operator intake            2.2
      headgate operator intake         0.3
      jack operator intake             1.5
      jack operator return             2.5

The sample for the designated occupation of shear operator return was
voided as the sample contained oversize particles. The average for the
section was 1.5 milligrams per cubic meter. McMahon decided, to return for
additional testing, because the sampling for the high risk occupation was
void, and because sampling for the shear operator intake and jack setter
return yielded samples which exceeded the maximum set forth in section
70.100, supra, of 2.0 milligram per cubic meter.

 On the following day, testing was performed by MSHA Inspector Marion

D. Beck. In essence, the procedures and equipment used by Beck were the
same as those used by McMahon. 1/ (Beck had inadvertently placed the wrong
occupation number on the equipment.

1/ Respondent, in essence, argues, in paragraph B of its Brief, that
30 C.F.R. $$ 70.201(c), 205(b), and 207(d), containing requirements for
dust sampling by Operators should be imposed on the Secretary, and that
these Sections were violated by Beck. I find that I do not have any
authority to essentially crate a regulatory obligation on the Secretary
where none exists.

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However, inasmuch as this error did not change the overall average for
the section, and inasmuch as the error is corrected by reversing the dust
concentrations for the shear operator return and shear operator intake, the
error was found to be inconsequential.) Beck, at the conclusion of the
8 hour shift on July 16, 1987, obtained the dust samples from the miners
tested, and took them to the MSHA Laboratory. Judith Irene Johnson, a
MSHA Lab Technician, testified, in essence, that she tested the samples on
July 16, using the same equipment procedures and methods as testified to by
McMahon. She also reweighed her results the following day with no change
in the results. Also, McMahon testified that on July 20 he verified the
results obtained by Johnson on July 16. Accordingly, I find, that on
July 16, the following occupations were tested with the following
concentration of dust in milligrams per cubic centimeter:

      shear operator intake      void due to oversize
                                   particles
      shear operator return      7.1
      headgate operator intake   1.7
      jack operator intake       0.1
      jack setter return         7.1

The average for the section was 4 on July 16, and the cumulative
2 day average was 2.7.

 McMahon testified that because two occupations sampled were above

the limit of 2.0 milligram per cubic meter on July 16, he had to return
for additional testing. McMahon further testified that pursuant to MSHA
policy, which indicates that an occupation with an average dust
concentration of 1.6 or less after the second day of testing may be dropped
from further testing. McMahon decided not to test the headgate operator
intake on the third day as the 2 day average for this occupation was only
0.9, and there was no reason to continue testing that occupation. However,
according to McMahon, inasmuch as there were two occupations whose test
results on July 16 exceeded the regulatory maximum of 2.0, he decided to
return on July 21 for additional testing. McMahon's testimony with regard
to the procedures and equipment used in testing on July 21 was not
contradicted. Accordingly, I find, that on July 21 when tested, the
following occupations in the sections had the following concentration of
dust per cubic meter:

      shear operator intake      1.7
      shear operator return      1.1
      jack operator intake       0.2
      jack setter return         0.2

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I further find that the average for the section based upon the cumulative
results for the 3 days of testing, to be 2.1 milligrams per cubic meter.

 Inspector McMahon, when presented with these results, issued a

citation for a violation of section 70.100, supra, which provides, in
essence, that the average concentration of respirable dust during each
shift, to which each miner in the active workings of the mine is exposed,
shall be at or below 2.0 milligrams per cubic meter. Inasmuch as the third
panel had been in existence for two shifts prior to the inspection on
July 15, and was actively engaged in the mining of coal, I conclude that
the panel in question was a "active workings," as referred to in section
70.100, supra, (see also 30 C.F.R. $ 70.2_. Further, inasmuch as the
cumulative average for the occupations tested in the section in question
on July 15, 16, and 21, 1987, produced a cumulative average of dust
concentration for the section of 2.1 milligrams per cubic feet, I conclude
that section 70.100, supra, has been violated.

                         II.

  It appears to be the position of Respondent that the Petitioner

has the burden of establishing that the method used in sampling the dust
herein was reasonable. In this connection, it is Respondent's further
argument, that the omission by McMahon of the headgate operator intake from
the testing on July 21, was arbitrary, and that accordingly the cumulative
average of 2.1 was not arrived at reasonably. In this connection,
Respondent makes reference to uncontradicted testimony that the headgate
operator intake, being closest to the source of the intake air, normally
has the lowest exposure to dust of the five occupations in the section
which were subject to the testing. Thus, Respondent argues that it
is likely that had the headgate operator intake been tested on July 21,
the result would have been a dust concentration equal to or less than that
of 0.2, which was the dust concentration yield for the two occupations
whose result was the lowest in the section on July 21. Respondent argues
that had the headgate operator intake not been dropped from the testing on
July 21, 1987, it is very likely that he would have been subject to dust
concentration of equal or less than 0.2, hence bringing the 3 day
cumulative average to 2.0 or less and thus being within the regulatory
standard. Respondent, in essence, also argues that omitting a previously
sampled occupation when computing a section average, is not rational.
Further, Respondent argues that when policy which provides for the omission
of those occupations with previous tested concentrations of less than or
equal to 1.6 results in the section average based on greater samples from
"dustier" occupations, the test results are irrationally detrimental to the
operator.

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I find however that there is no evidence that McMahon dropped the
headgate operator intake from the testing on July 21, 1987, in order not
to have the average for the section decreased. Indeed, it is to be noted
that McMahon retained for testing on the July 21 the jack operator intake
whose test result of 0.1 on July 16 was even less than the result of 1.7
yielded for the headgate operator intake. Moreover, since it is manifest
that the purpose of section 70.100(a), supra, is to protect miners from
excessive exposure to the hazards of dust, it is not irrational, per se,
to discontinue testing an occupation (040) which had evidenced exposure to
dust concentration in 2 previous days of testing substantially below the
regulatory ceiling. If the resulting section average will be then based on
greater samples from dusty occupations, the section average will thus
realistically reflect the hazards to the section.

 Accordingly, I find that Petitioner herein acted reasonably in its

method of testing, and that there was insignificant evidence that it acted
arbitrarily. 2/

                          III.

 McMahon testified that he considered the violation herein to be

significant and substantial, inasmuch as exposure to dust concentrations
of more than 2.0 milligram per cubic meter contributes to the hazard of a
pulmonary disease which is a disease of reasonably serious nature.
Respondent indicated at the hearing that it did not dispute the significant
and substantial aspect of this case. Accordingly, I find that the
violation herein was significant and substantial.

                          IV.

 In assessing a penalty herein, I have the adopted the uncontradicted

testimony of McMahon with regard to Respondent's negligence and find that
Respondent acted with a low degree of negligence. I further find that the
Respondent herein acted in good faith in abating the violation, and I find
that, based upon the testimony of McMahon, the violation herein was of a
moderately serious nature as exposure to excessive respirable dust is
likely to contribute to the hazard of pulmonary disease.

2/ Respondent, in its Brief, has argued that the manner in which
abatement was required was unlawful. I find this argument to be
irrelevant in evaluating the validity of the citation that is at
issue herein. I also nota that Respondent does not seek any relief
for the Petitioner's allegedly unlawful manner of abatement.

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Further, I have adopted the stipulations of the Parties and the factual
data on GX 14, with regard to the remaining factors in section 110(i) of
the Act. Accordingly, I find that a penalty herein of $259 as proposed is
appropriate.

                          ORDER

 It is ORDERED that Respondent shall pay, within 30 days of this

decision, a civil penalty of $259 for the violation found herein.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

David A Laing, Esq., Porter, Wright, Morris & Arthur, 41 South
High Street, Columbus, OH 43215 (Certified Mail)

Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department of Labor,
881 Federal Office Building, 1240 East Ninth Street, Cleveland, OH 44199
(Certified Mail)