Tanoma Mining Company, Inc.

Plain-English summary

Tanoma Mining Company operated the Tanoma Mine, an underground coal mine in Pennsylvania. The case involved respirable-dust sampling pumps that were not carried directly to and from the mine portal and working areas during extended shifts. The judge vacated three citations because the Secretary did not provide adequate notice of the required sampling procedure and approved a settlement modifying a fourth citation to delete the significant-and-substantial designation. The settled citation's penalty was reduced from $94 to $75.

Decision snapshot

• Cited standard: 30 C.F.R. § 70.201(b)
• Outcome: Citation Nos. 3688641, 3688642, and 4174660 were vacated. Citation No. 3688643 was affirmed as modified, and the civil penalty was reduced to $75.
• Key point: An operator could not fairly be penalized for a sampling procedure without adequate notice that MSHA considered the procedure noncompliant.

Full text (FMSHRC public release)

FED ERA L M INE SA FETY A ND HEA LTH REV IEW COM M ISSION

                          OFFICE OF A DM INISTRA TIVE LA W JUDGES
                                       2 Sk yline, Su ite 1000
                                        5203 Leesbu rg Pik e
                                  Fa lls Chu rch, Virg inia 22041



                                      June 26, 1998

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 98-23
Petitioner : A. C. No. 36-06967-03923
v. :
: Tanoma Mine
TANOMA MINING COMPANY, INC., :
Respondent :

                                       DECISION

Appearances: Troy E. Leitzel, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania, for Respondent.

Before: Judge Hodgdon

    This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary

of Labor, acting through her Mine Safety and Health Administration (MSHA), against Tanoma
Mining Company, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. ' 815. The petition alleges four violations of the Secretary=s mandatory health
and safety standards and seeks a penalty of $598.00. For the reasons set forth below, I vacate
three of the citations, approve a settlement agreement concerning the fourth, and assess a penalty
of $75.00.

   A hearing was held on March 19, 1998, in Indiana, Pennsylvania. The parties also

submitted post-hearing briefs in the case.

                                     Settled Citation

    At the beginning of the hearing, the counsel for the Secretary advised that the parties had

agreed to settle Citation No. 3688643. The agreement provides that the citation will be modified
to delete the Asignificant and substantial@ designation and the penalty will be reduced from $94.00
to $75.00. Based on the representations of the parties, I concluded that the settlement was
appropriate under the criteria set forth in section 110(i) of the Act, 30 U.S.C. ' 820(i) and
approved the agreement. (Tr. 4-5.) The provisions of the agreement will be carried out in the
order at the end of this decision.

                                     Findings of Fact

Page 2

    On July 14, 1997, the Tanoma Mine, an underground coal mine in Indiana County,

Pennsylvania, began working ten hour shifts. With the change, Michael J. Elias, the mine=s Health
and Safety Manager, had to make a change in the dust sampling procedures at the mine.1 Section
70.201(b), 30 C.F.R. ' 70.201(b), requires that: ASampling devices shall be worn or carried
directly to and from the mechanized mining unit [MMU] or designated area and shall be
operational portal to portal. Sampling devices shall remain operational during the entire shift or
for 8 hours, whichever time is less.@ Elias was concerned with how to meet this requirement
during a ten hour shift.

    Not finding any guidance in the MSHA Program Policy Manual,2 Elias next looked at

the MSHA Coal Mine Health Inspection Procedures Manual (1989), which sets forth procedures
for inspectors to follow in carrying out their duties. At paragraph 8, p. 1.6, under ASampling
Procedures@ Elias found the following: AFull-shift samples shall be considered 8-hour samples
unless the normal work shift is less than 8 hours. When a normal work shift is in excess of
8 hours, the samplers shall be turned off at the conclusion of 8 hours sampling, the filter cassettes,
plugged or protected, and the time recorded.@ (Resp. Ex. 6.) From this he concluded that he
should do the same thing, that is, have the miner wear the pump into the mine when he began his
1
Section 70.207(a) of the Secretary=s regulations, 30 C.F.R. ' 70.207(a), requires that:

                    Each operator shall take five valid respirable dust samples
            from the designated occupation in each mechanized mining unit
            during each bimonthly period beginning with the bimonthly period
            of November 1, 1980. Designated occupation samples shall be
            collected on consecutive normal production shifts or normal
            production shifts each of which is worked on consecutive days.
   2
      The manual states only that: AIn cases where the designated occupation of a MMU

works longer than 480 minutes or the production shift for a DA is longer than 480 minutes,
arrangements shall be made to remove the sampling device from the miner at the expiration of this
time period.@ Vol. V, Part 70, Subpart C, MSHA Program Policy Manual 7 (07/01/88).

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Page 3

shift, at the conclusion of 8 hours turn off the pump, take it off of the miner and secure it, and
then take the pump out of the mine at the end of the shift.

    Tanoma was conducting its September-October sampling in this way on September 2,

1997, when Inspector Thomas H. Whitehair, II, informed Elias that this was not a proper method
of sampling, since the regulation required that the pump be removed from the mine at the end of
eight hours. Elias immediately called Ted Glusko, the supervisor at the Indiana Field Office, to
ask him how other mines working extended shifts conducted sampling. Glusko said he did not
know and would get back to him.

    Concerned that time was running out, and not having received a reply from Glusko, Elias

next called Paul Bizich in the Huntingdon, Pennsylvania, District Office. Finding Bizich on
vacation for a couple of days and worried that he was wasting time, he called Kevin Strickland,
who used to be in Bizich=s position at the MSHA District Two office, and left a voice mail
message. Elias waited a day or two, decided he was not going to get an answer and then called
Joe Garcia, District Manager in the MSHA District Two New Stanton office. He explained the
problem to Garcia and asked what they should do. Garcia told Elias that he needed something in
writing, so Elias sent him a letter on September 10, 1997.

    In the letter, Elias set out Atwo scenarios that have been presented to me, one of which I

do not feel is representative of the sampling cycle, and one which we cannot physically perform
due to time restrictions in the sampling cycle.@ (Resp. Ex. 1.) He then stated:

                   The scenario which I would like to present to you, which
           does not technically comply with Part 70.201(b) according to
           MSHA, but generates the most representative sample of the
           sampling entity is as follows. The sampling device would be started
           at the portal at the beginning of the shift, and at the end of the
           eighth hour or 480 minutes, the sampling device would be stopped
           while still at the working section or designated area. The sampling
           device would then be brought out to the mine portal at the end of
           the ten hour shift. This actually allows the sampling device to be at
           the sampling entity longer than normal, for whatever time it would
           have normally taken to travel out of the mine. This is the only
           scenario with which I can insure compliance with all other
           applicable regulations, and the local mine safety committee is in
           agreement with this method while we operate in this ten hour
           scenario.

(Id.) He closed by stating: AI would request that you respond to my concerns as soon as possible
as we are partially into a sampling cycle presently and will need to begin sampling soon.@ (Id.)

    At this same time, Elias had also been in contact with the company attorney, who in turn

had called Robert Thaxton at MSHA=s Arlington, Virginia, headquarters for guidance. However,
by the first week in October, Elias had not received a response to his letter to Joe Garcia and

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Page 4

believed that he had to start taking samples. He called the company attorney to find out if he had
learned anything and was advised that the best way to comply was to deliver the pumps to the
miners to wear. Elias then called Ted Glusko to discuss this plan with him. As a result of this
discussion, Elias concluded that Ait was better for me to deliver the pumps in the morning, starting
two hours after the shift began and running them to the end of the shift, for a total of eight hours.@
(Tr. 70.)

    On October 6, 1997, Inspector Lewis E. Kish went to the Tanoma Mine to inspect it. In

the portal before entering the mine, he had a conversation with Elias about sampling procedures.
At the hearing, he related that:

           Mike told me, he said, we might not want to use our sample
           because it=s going to be -- I=ve got a lot of places to go before we
           get in there. I said, Mike, those pumps are supposed to go directly
           in and directly out. And Mike said, I=ll get it in there as fast as I
           can. So I told him, Mike, if you don=t get it in and get it out,
           directly in and out, then I=ll be citing you. Mike said, well, I=ll get it
           in when I get it in.

(Tr. 10.)

    To deliver the pumps on October 6, Elias entered the portal at 9:00 a.m. and took the

elevator to the Main A entry track. He had four dust sampling pumps, which had been turned on
at 9:00 a.m., with him, for sections C-12, E-1, E-8 and Main E. He got in a battery powered
mantrip and traveled down the Main A entry track to the Main C entry track where he stopped at
the entry to the C-12 section. He took the C-12 pump, leaving the other pumps in the mantrip,
and went to the working face of the section where he placed the pump on the miner operator.

   Elias returned to his mantrip and traveled to the end of the Main C entry track onto the

Main E entry track. He took the E-1 pump, leaving the other two in the mantrip, and got into the
E-1 section=s mantrip, which was waiting there for him, and drove into the E-1 section where he
went to the working face and placed the pump on the miner operator.

   Elias returned to the Main E track entry, got in his mantrip and traveled on the Main No. 2

track until he got to the area near the E-8 section switch. He then got out of his mantrip and took
the E-8 pump, leaving the remaining one, to the working face where he placed it on the miner
operator.

    Elias then returned to the Main E track entry, got back in his mantrip and drove down the

track to the Main E section. He walked the pump partially into the mining section and placed it
on the miner operator. Inspector Kish was in the Main E section when Elias arrived to place the
pump and noted that it was 11:27 a.m. He informed Elias that he would be citing the mine for
that sample.

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Page 5

    Inspector Kish informed Bob DeBreucq, Vice President of Operations, that he would be

writing citations for the pumps that were delivered late. DeBreucq told him he should check with
his superiors because the mine, through Elias, had had discussions concerning the proper way to
perform the sampling. As a result, Kish called his supervisor, Ted Glusko, for advice.

    Kish returned to the mine on October 7, still not having been able to contact Glusko.

Finally, Glusko sent Inspector Whitehair to the mine with instructions for Kish to issue the
citations. As a result, Kish issued Citation Nos. 3688641, 3688642 and 4174660 to the mine.
Citation No. 3688641 alleges a violation of section 70.201(b) in that:

                    The operators bimonthly respirable dust sample taken on
           10-6-97 on the E8, 021 MMU, occupation 036, was not
           representative of the mines environment for eight hours as required
           in that the approved respirable dust pump was not carried directly
           to the E8, 021 MMU, after being started at 9:00 a.m.

                   The certified person responsible for placing the dust pump
           on the person did not place the dust pump until 11:09 a.m. after
           placing other dust pumps in the C12 and E1 sections of the mine.
           The mine worked a ten hour shift starting at 7:00 a.m. and ending
           at 5:00 p.m.

(Govt. Ex. 1.) Citation No. 3688642 is worded identically to Citation No. 3688641, except that it
deals with the 024 MMU in the Main E section and states that the pump was not delivered until
11:27 a.m. after pumps were delivered to the C-12, E-1 and E-8 sections. (Govt. Ex. 2.) Citation
No. 4174660 is the same as the other two, except that it concerns the 026 MMU in the E-1
section and states that the pump was not delivered until 10:40 a.m. after a pump was delivered to
the C-12 section. (Govt. Ex. 3.) With the exception of Citation No. 3688642, where Inspector
Kish was present when the pump was delivered, the inspector obtained the time of delivery from
Elias.

   On October 10, 1997, Tanoma=s attorney sent a letter to the Division of Health outlining

the problems being encountered by the mine and recommending actions for MSHA to take.
(Resp. Ex. 2.) He received a response to his letter, dated January 28, 1998, from Marvin W.
Nichols, Jr., Administrator for Coal Mine Safety and Health. The letter stated, in part:

                   We share your concern that work shifts beyond the
           traditional 8 hour time period may not be fully addressed by our
           current respirable coal mine dust sampling procedures. However,
           we have been informed by the Office of the Solicitor that any
           changes in those procedures will require rulemaking. . . .

                   Please be assured that extended work shifts will be given
           serious consideration in any future rulemaking involving the mine
           operator sampling program. Until the standard is revised, however,

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Page 6

             mine operators will be required to comply with the current
             procedures for respirable coal mine dust sampling.

(Resp. Ex. 3.)
Conclusions of Law

   As Mr. Nichols admitted in his response to the company, section 70.201(b) does not Afully

address@ work shifts beyond the standard eight hour time period. Nor has MSHA offered any
guidance as to how companies working a longer shift can comply with the regulation.
Accordingly, based on the specific facts of this case, I conclude that Tanoma did not have
adequate notice of the requirements of the regulation with regard to sampling during a 10-hour
shift.

   Concerning the issue of notice afforded by a regulation, the Commission has stated:

             We fully appreciate that in order to afford adequate notice and pass
             constitutional muster, a mandatory safety standard cannot be Aso
             incomplete, vague, indefinite or uncertain that [persons] of common
             intelligence must necessarily guess at its meaning and differ as to its
             application.@ Alabama By-Products Corp., 4 FMSHRC 2128, 2129
             (December 1982) (citations omitted). However, in interpreting and
             applying broadly worded standards, the appropriate test is not
             whether the operator had explicit prior notice of a specific
             prohibition or requirement, but whether a reasonably prudent
             person familiar with the mining industry and the protective
             purposes of the standard would have recognized the specific
             prohibition or requirement of the standard.

Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 27, 1990).

    This is not a case where the operator ignored the regulation. Tanoma, through Elias, was

making a good faith effort to comply with it. He checked first with the MSHA Program Policy
Manual, but all this advised was that for shifts longer then eight hours Aarrangements shall be
made to remove the sampling device from the miner at the expiration of@ 8 hours. Significantly, it
does not say anything about the pump exiting the mine at the end of 8 hours. When Elias checked
the inspector=s manual which provided that at the end of 8 hours the pump would be turned off
and the cassette plugged or protected, he concluded, not unreasonably, that this was how the
operator=s sampling should be conducted.

   When he was informed by Inspector Whitehair that this was not the proper way to sample,

he stopped doing it that way and he tried to find out how it should be done. Inspector Whitehair
apparently did not give him any guidance on how the sampling should be done. Neither did any of
the many MSHA officials he contacted.

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Page 7

    With time running out, and sampling having to be performed, the only advice that he had

received was that the pumps should be carried into the mine by someone other than the wearers at
9:00 a.m. so that they could then be worn out of the mine at 5:00 p.m. He performed this
function himself, traveling by the most direct route to each section. Once again, I cannot find that
his solution was unreasonable and not a good faith attempt to comply with the standard.
However, after he had done it, he was informed that this method did not comply with the
regulation, because of the time it took to get the pumps to the appropriate locations, and the
company was cited.

    In view of the fact that no one from MSHA could provide the company with any

information as to how the specific requirement of the regulation could be met when operating on
10 hour shifts, it is difficult to conclude that a reasonably prudent person familiar with the mining
industry would have recognized how to meet the specific requirement of the regulation.
Furthermore, the company was doing more than just trying to interpret the section, it was actively
seeking guidance on the issue.

    For these reasons, I cannot conclude that the standard provided Tanoma with adequate

notice of what it required. Consequently, I conclude that Tanoma may not be held responsible the
three alleged violations of section 70.201(b) and will vacate the citations.

                                          ORDER

   Accordingly, Citation Nos. 3688641, 3688642 and 4174660 are VACATED; Citation

No. 3688643 is MODIFIED by deleting the Asignificant and substantial@ designation and is
AFFIRMED as modified. Tanoma Mining Company is ORDERED TO PAY a civil penalty of
$75.00 within 30 days of the date of this decision. On receipt of payment, this case is
DISMISSED.

                                        T. Todd Hodgdon
                                        Administrative Law Judge

Distribution:

Troy E. Leitzel, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480 Gateway
Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)

Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, P.O. Box 25, Barnesboro, PA 15714
(Certified Mail)

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