Keystone Coal Mining Corp.
Keystone Coal Mining Corp. (FMSHRC PENN 91-1454-R and related dockets): Summary decision denied in respirable-dust contest
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This order from 1992 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Keystone Coal Mining challenged citations based on single-shift respirable-dust samples taken under MSHA's spot-inspection program. Judge Avram Weisberger found that the record did not establish whether the change from multi-shift to single-shift sampling affected the operator's substantive rights or was only a change in scientific method. He also found unresolved factual issues about whether the samples should have been voided because of oversized particles. The judge denied Keystone's motion for summary decision and set the consolidated matters for an evidentiary hearing.
Decision snapshot
- Cited standards: 30 C.F.R. § 70.100(a) and 30 C.F.R. § 70.2(p)
- Outcome: The motion for summary decision was denied, and the matters were set for hearing.
- Key point: Unresolved factual issues about sampling methods and sample validity require an evidentiary hearing.
Full text (FMSHRC public release)
t FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
t
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE. 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
May 5, 1992
KEYSTONE COAL MINING CORP., .. CONTEST PROCEEDINGS
Contestant :
V . .. Docket No. PENN 91-1480-R
: Citation No. 3687890;
: 8/21/91
SECRETARY OF LABOR, ..
MINE SAFETY AND HEALTH : Emilie No. 1 Mine
ADMINISTRATION (MSHA), :
Respondent .. Mine ID 36-00821
..
.* Docket No. PENN 91-1454-R
: Citation No. 3687888;
.. 8/14/91
..
: Margaret No. 11 Mine
.. Portal # 2
..
: Mine ID 36-08139
:
: Docket No. PENN 92-54-R
: Citation No. 3687895:
.. g/20/91
..
.. Emily No. 1 Mine
..
.. Mine ID 36-00821
..
SECRETARY OF LABOR, .. CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN,92-114
Petitioner .. A.C. No. 36-00821-03761
..
V . .. Emilie No. 1 Mine
..
KEYSTONE COAL MINING CORP., .. Docket No. PENN 92-119
Respondent .. A. C. No. 36-08139-03512
..
.. Margaret No. 11 Mine No. 2
.. Portal
921
.- . _w- -. _” -I -..i .- -.- .
Page 2
Order Denvins Motion for Summarv Decision
I
2
At issue in these consolidated contests and civil penalty
proceedings are three citations issued by MSHA Inspector Brady
cousins alleging violations of 30 C.F.R. 5 70.100(a). These
citations were issued pursuant to a "spot inspector" program
whereby five different occupations were tested for dust samples
during one production shift. On February 7, 1992 the Operator
filed a Motion for Summary Decision which was replied to by the
Secretary on March 27, 1992, In a telephone conference call
between the undersigned and counsel for both parties on April 9,
1992, counsel were requested to provide proper citations in the
record to certain assertions set forth in their respective
memorandum submitted in connection with the Operator's Motion.
In response thereto, the Secretary, on April 10, 1992, submitted
certain exhibits which are referred to in the depositions taken
by the Operator of Thomas T. Tomb and Brady Cousins, and
referenced by the Operator in connection with its Motion.
II.
The citations at issue allege violations of 30 C.F.R. 5
70.100(a) which provides, as pertinent, that an operator
II . . . shall continuously maintain the averaqe concentration of
respirable dust in the mine atmosphere during each shift to which
each miner in the active working of each mine is exposed at or
below 2.0 milligrams of respirable dust per cubic meter of
air... .(I The regulations do not define the term "average
concentration", but that term is defined in Section 202(f) of the
Federal Mine Safety and Health Act of 1977 as follows:
For the purpose of this title, the term "average
concentration" means a determination which accurately
represents the atmospheric conditions with regard to
respirable dust to which each miner in the active
workings of a mine is exposed (1) as measured, during
the 18 month period following the date of enactment of
this Act, over a number of continuous production shifts
to be determined by the Secretary and the Secretary of
Health, Education, and Welfare, and (2) as measured
thereafter, over a sinqle shift onlv, unless the
Secretary and the Secretary of Health, Education, and
Welfare find, in accordance with the provisions of
section 101 of this Act, that such sinqle shift
measurement will not, after applvinq valid statistical
techniques to such measurement, accurately represent
such atmospheric conditions durinq such shift.
(Emphasis supplied.)
The Mine Safety and Health Administration (MSHA) in
promulgating respirable dust standards, (which include
section 70.100(a) supra), set forth the following language under
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Page 3
the heading Discussion of Major Issues:
The Secretary of the Interior and Secretary of
Health, Education, and Welfare conducted continuous
multi-shift sampling and single-shift sampling and,
after applying valid statistical techniques, determined
that a single-shift respirable dust sample should not
be relied upon for compliance determinations when the
respirable dust concentration being measured was near
2.0 mg/m3. Accordingly, the Secretary of Interior and
Secretary of Health, Education, and Welfare prescribed
consecutive multi-shift samples to enforce the
respirable dust standard. (45 Fed. Reg. 23997
(April 8, 1980)
In July 1991, the Secretary commenced a "spot inspectiongU
program sampling the mine atmosphere for respirable dust for only
one eight hour production shift.
III.
In essence, it is the Operator's argument that, pursuant to
Section 202(f), sunra, once the Secretary makes a finding that a
single shift would not accurately represent atmospheric condition
during a shift, it cannot cite an Operator for a violation of a
dust standard based on a single shift sample. The Operator
argues that such a finding was made by the Secretary in
connection with the promulgation of the dust standards (45 Fed.
Reg., sunra,) and that, having found that a single shift sample
is unreliable, the Secretary cannot depart from such a finding
without similar resort to the normal rule making 'procedures
referred to in section 101 of the Act.
According to the clear language of Section 202(f) supra, the
"average concentrationtl of respirable dust is measured only over
a single shift, unless the Secretary makes a finding, pursuant to
the rule making procedures of the Administrative Procedures Act,
that single shift measurement will not @'accurately represent such
atmosphere conditions during such shift." The finding of the
Secretary relied on by the Operator, 45 Fed. Reg. supra, does not
explicitly conclude that a single shift'measurement per se, will
not accurately reflect conditions during the shift. To the
contrary, the finding of the Secretary is based on a
determination that a single shift sample should not be relied
upon only @I ,..when the respirable dust concentration being
measured was near 2.0 mg/m3." (emphasis added.) The Secretary
did not make any explicit finding subject to the rule making
procedures of the Administrative Procedure Act as to what dust
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Page 4
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concentrations are to be considered tfnearlf 2.0 mg/m3.' I thus
find that it has not been established that the Secretary has made
a finding, in accordance with section 101(f) of the Act
concerning the unreliability of single shift samples in general.
IV.
In addition, the Operator argues that dust samples taken
during only one shift are violative of the Secretary's policy and
hence are invalid. In this connection the Operator apparently
refers to the following statement by the Secretary as indicative
of her policy not to take samples based only on one shift:
Compliance determinations will generally be based
on the average concentration of respirable dust
measured by five valid respirable dust samples taken by
the operator during five consecutive shifts, or five
shifts worked on consecutive days. Therefore, the
sampling results upon which compliance determinations
are made will more accurately represent the dust in the
mine atmosphere than would the results of only a single
sample taken on a single shift. (45 Fed. Reg. sunra at
23997)
The Operator also refers to a handbook issued on February
15, 1989, setting forth procedures for MSHA personnel to follow
in conducting inspections pertaining to respirable dust, which
contains the following language: "A Decision of Non-compliance
Cannot be Made on One Sample." (Exhibit 18, table 1 page 1.12).
The Secretary in her Response to Motion for Summary
Decision, does not contest the Operator's assertions that, prior
to the implementation of the present policy, the policy was to
take samples over five shifts. Instead, the Secretary argues, in
essence, that the shift to single shift sampling does not change
the Operator's obligation I' . ..to continuously maintain an average
concentration of respirable dust in active working at no greater
than 2.0 mg/m3", and that the only change has been "the manner in
which the Secretary will prove a violation of Section 70.100(a)."
'A document entitled, Resoirable Dust Spot Inspection and
Monitorinq Proqram for Underqround Mines, provided to inspector
Cousins when he was trained in connection with the spot
inspection program in July 1991, appears to provide that
citations for accumulations of dust measured during a single
shift shall not be issued where the concentrations are below 2.5
mg= This would appear to indicate the Secretary's intention to
limit the finding that single shift dust samples are not
reliable, to those situations where the concentrations are at or
less than 2.5 mg. In the citations at issue the dust
concentrations found were at least 2.8 mg.
924
Page 5
The record before me does not contain a sufficiently clear
presentation of evidentiary facts to allow me to reach a
conclusion as to whether the shift to a single shift sampling
procedure affects the Operator's substantive rights, or whether
it is merely a change in a scientific method for determining
whether the standard has been exceeded. An evidentiary hearing
is thus necessary to resolve this issue.
V.
The Operator also refers to 30 C.F.R. § 70.2(p) which
defines a valid respirable dust sample as one that is "collected
and submitted as required by this part, and not voided by MSHA@l.
In this connection, references are made to the Self-Study
Technician Manual ("the Manual") which requires samples having a
net weight gain of 1.8 mg or greater to be checked for oversized
materials (Exhibit 20). Although Cousins did not check for
oversized particles, there is no clear indication that the manual
sets forth procedures that unequivically pertain to the
responsibilities of an inspector. Hence, I cannot find the
presence of a definite MSHA policy mandating an inspector to
check for oversized particles. However, there remains a factual
issue as to whether Cousins should have voided the samples taken.
This issue can be resolved only by a full examination of all the
facts in existence at the time the samples were taken. As
pointed out by the Secretary in her response, there are
differences between the version of Cousins set forth in his
deposition, and factual assertions contained in the affidavits of
James Manuel (Exhibit 4) and Dennis R. Malcolm (Exhibit 10). As
such a hearing is necessary to resolve these conflicts (See, 29
C.F.R. 5 2700.64(b))
Therefore, for all the above reasons, the Motion for Summary
Decision is DENIED and a hearing in this matter will be held, as
previously scheduled, on June 2, 3 and 4.
k Avram Weisberger
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, 57th Floor, USX Tower I
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
Edward H. Fitch, Esq., Carl C. Charneski, Esq., Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Howard'K. Agran, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
nb
925
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