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:
SOUTHERN OHIO COAL V. SOL (MSHA)
SOL (MSHA) V. SOUTHERN OHIO COAL
DDATE:
19880728
TTEXT:

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~923
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SOUTHERN OHIO COAL COMPANY, CONTEST PROCEEDING
CONTESTANT
v. Docket No. LAKE 87-95-R
SECRETARY OF LABOR, Citation No. 2945843; 7/22/87
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Meigs No. 2 Mine
RESPONDENT
Mine ID 33Ä01173
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH CIVIL PENALTY PROCEEDING
ADMINISTRATION (MSHA),
PETITIONER Docket No. LAKE 88-26
v.
A.C. No. 33-01173-03743
SOUTHERN OHIO COAL COMPANY,
RESPONDENT Meigs No. 2 Mine

                                  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 Ä 20,
1988. Patrick Lester McMahon, 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.(Footnote 1) (Beck had inadvertently placed the wrong occupation
number on the equipment.

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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 yeilded 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. (Footnote 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.

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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

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Footnote starts here:-

~Footnote_one

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.

~Footnote_two

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 note that Respondent does not seek any
relief for the Petitioner's allegedly unlawful manner of
abatement.