Bridger Coal Company (ALJ decision, November 18, 1994)

Plain-English summary

Bridger Coal operated a surface coal mine where MSHA cited a drill operator's designated work position for exceeding a respirable-dust limit. Judge August F. Cetti found that the reduced limit had originally been based on a single quartz sample, and that the single-shift method could not reliably establish the applicable exposure standard. He also found that later quartz samples supported a newer, higher limit than the one used for the citation. The citation was vacated and the proposed civil penalty was set aside.

Decision snapshot

• Cited standards: 30 C.F.R. § 70.101; 30 C.F.R. § 71.101; 30 C.F.R. § 71.208(c); 30 C.F.R. § 71.208(a); 30 C.F.R. § 71.308(c)
• Outcome: Citation No. 02931949 was vacated and the related proposed civil penalty was set aside.
• Key point: The judge rejected use of an outdated reduced dust standard based on a single quartz sample when later sampling supported a different standard.

Full text (FMSHRC public release)

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

November 18, 1994

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA), : Docket No. WEST 91-233
Petitioner : A.C. No. 48-00677-03523
:
v. : Jim Bridger
:
BRIDGER COAL COMPANY,
:
Respondent
:

DECISION

Appearances: Carl C. Charneski, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Petitioner;
Henry Chajet, Esq., Jackson & Kelly,
Washington, D.C., for Respondent.

Before: Judge Cetti

I

The stay in this case is lifted. This case is before me upon a petition for assessment of civil penalty 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 be- half of the Mine Safety and Health Administration (MSHA), seeks a civil penalty of $192 from the Respondent for the alleged viola- tion of 30 C.F.R. 71.101. This safety standard in relevant part provides:

When the respirable dust in the mine atmosphere of the active workings contains more than 5% quartz, the operator shall continuously maintain the average concen- tration of respirable dust in the mine atmosphere during each shift to which each miner is exposed at or below a concentration of respirable dust computed by dividing the percent of quartz into the number 10.

The Respondent, Bridger Coal Company, filed a timely answer contesting the alleged violation. After due notice to the parties, a hearing was held in Denver, Colorado. At the hearing, the Petitioner presented the testimony of Thomas F. Tomb, chief

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of the Dust Division at the Department of Labor's Pittsburgh Health and Safety Technology Center and Joseph William Pavlovich, Subdistrict Manager of MSHA, Coal Mine Safety and Health, Dis- trict 9. Respondent presented the testimony of Dr. Morton Corn. Dr. Corn since 1980 has been the John Hopkins University profes- sor of Environmental Engineering and director of the division of the same name in the School of Hygiene and Public Health, which is a graduate school. Respondents also presented the testimony of Mr. Robert E. McCartney, the miner's representative of the miners employed at the Bridger Mine.

II

ISSUES

The issues presented at the hearing were whether Respondent violated the cited standard and if it did, was the violation S&S and the amount of the appropriate penalty. The underlying basic issue is the validity of using a single shift dust sample to set a reduced quartz standard under Section 71.101 and then using that reduced standard four years later to issue the citation in question.

III

STIPULATIONS

All the essential basic facts involved in this case are set forth in the stipulations which the parties entered into the record as follows:

1. Bridger Coal Company (Bridger) operates a surface coal mine in Sweetwater County, Wyoming.

2. Bridger is subject to the provisions of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.

3. The Mine Safety and Health Administration (MSHA) issued Citation No. 2931949 to Bridger on October 11, 1990, through an authorized representative of the Secretary. Citation No. 2931949 alleges a violation of 30 C.F.R. 71.101. The citation narrative states:

Based on the results of five valid dust samples collected by the operator, the average concentration of respirable dust in the working environment of the designated work position #384, Pit 001-0, was 0.7 mg/m3 which exceeds the applicable limit of 0.6 mg/m3, when quartz is present. Management shall take corrective steps/action to lower

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~2312 the respirable dust, then sample each pro- duction shift until five valid samples are taken and submitted to the Pittsburgh
Respirable Dust Processing Laboratory.

4. Designated work position (DWP) 384 is located within the enclosed cab of a Drilltech D-60 drill.

5. Citation No. 2931949 was issued pursuant to Section 104(a) of the Mine Act. It charges that the violation of Section 71.101 was of a "significant and substantial" nature and that it was the result of Bridger's moderate negligence.

6. Bridger admits that the citation was issued by an authorized representative of the Secretary, denies that it violated Section 71.101, denies that it was negligent and denies that the alleged violation was significant and substantial.

7. The citation was abated on October 31, 1990.

8. The civil penalty proposed by MSHA will not affect Bridger's ability to continue its business operations.

9. The sampling results and silica analysis of DWP 384, Pit 001-0, are as follows:

(a) On September 16, 1986, MSHA established a .6 mg/m3 respirable dust standard for DWP 384 based on a single sample quartz analysis of 19%. (Underlining added).

(b) From September 16, 1986, through
July 18, 1990, DWP 384 was the subject of 52 respirable dust samples collected by the operator and analyzed by MSHA.

(c) On July 18, 1990, an MSHA respirable dust sample of DWP 384 was analyzed at 10% quartz. Bridger was provided notice of the opportunity for it to take an optional sample for quartz analysis or to accept the MSHA result of 10%, which would have resulted in a 1.0 mg/m3 standard.

(d) Bridger elected to take an additional sample and did so on September 4, 1990. This sample was analyzed by MSHA at 14% quartz.
Because Bridger's September 4, 1990, sample had a greater than 2% quartz difference from MSHA's July 18, 1990, sample, the operator

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~2313 was provided with another opportunity to resample.

(e) Bridger took another respirable dust sample of DWP 384 on September 27, 1990. The results of this sampling showed the level of quartz at 15%.

(f) Based on the average of the quartz analysis for the July 18, 1990, MSHA sample (10%), and Bridger's samples of September 4 and 27, 1990 (14% and 15%, respectively), MSHA established a new respirable dust standard for DWP 384 of .8 mg. Bridger was notified of this new standard on October 2, 1990.

(g) On September 5, 1990, Bridger had submitted a bimonthly sample for DWP 384 pursuant to 30 C.F.R. 71.208(a). This sample was weighed by MSHA and reported to Bridger as resulting in a concentration of 1.2 mg/m3, thus triggering the requirements of 30 C.F.R.
71.208(c) for five respirable dust samples to determine compliance with 30 C.F.R. 71.101.

(h) Pursuant to 30 C.F.R. 71.308(c), Bridger submitted five samples for DWP 84. These samples were taken on September 27 and 30, 1990, and on October 1, 3, and 4, 1990.

(i) The average concentration for these five compliance samples submitted by Bridger was reported by MSHA as .7 mg/m3 and served as the basis for Citation No. 2931949 issued on October 11, 1990.

10. The Time Line attached as Exhibit A reflects the respirable dust sampling activities relative to DWP 384 described above. (Referenced in the briefs as stipulation no. 12).

11. On February 10, 1992, MSHA Subdistrict Manager Joseph W.
Pavlovich sent a letter (attached as Exhibit B) to Bridger removing DWP 384 from bimonthly sampling status because the samples taken by the operator and MSHA were below the applicable
.8 mg/m3 standard for a one-year period. (Referenced in the briefs as stipulation no. 13).

12. Bridger had not been cited for a violation of 30 C.F.R.
71.101 for five years prior to the citation at issue. (Referenc- ed in the briefs as stipulation no. 14).

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IV

Dr. Morton Corn of John Hopkin's University, professor of Environmental Engineering was Respondent's expert witness. Dr. Corn testified at the hearing in this matter that a single shift sample, such as that taken in this case in September 1986 to establish the reduced dust standard, "is practically meaning- less." Thomas Tomb, chief of the Dust Division at the Pittsburgh Health and Technology Center, Respondent's expert, agreed that "one sample doesn't do the job for either an enforcement purpose or health risk in terms of understanding exposure of miners ... ." The Commission in its recent decision, Keystone Coal Mining Corporation, 16 FMSHRC 6 (January 4, 1994) held that MSHA's program for issuing citations for excessive levels of respirable dust based on a single shift sample is invalid in view of the 1971 "legislative type" rule that compliance determinations may not be based on a single sample. Notice of that rule published in the Federal Register and states in part:

Notice is hereby given that, in accordance with section 101 of the Act, and based on the data summarized ..., the Secretary of the Interior and the Secretary of Health, Educa- tion, and Welfare find that single shift measurement of respirable dust will not, after applying valid statistical techniques to such measurement, accurately represent the atmospheric conditions to which the miner is continuously exposed.

In April 1971, a statistical analysis was conducted by the Bureau of Mines, using as a basis the current basic samples for the 2.179 working sections in compliance with the dust standard on the data of the analysis....
[R]esults of the comparisons ... [show] that a single shift measurement would not, after applying valid statistical techniques, accur- ately represent the atmospheric conditions to which the miner is continuously exposed.

36 Fed. Reg. 13286 (July 17, 1971).

The Commission decision in Keystone affirming the vacating of a citation based on a single shift sample, demonstrates that single shift sampling such as used in this case to establish the reduced dust standard in September 1986 does not approximate ex- posure with reasonable accuracy, and logically mandates dismissal of the citation in this case.

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V

The basic fundamental respirable dust standard required by the Mine Act [Section 202(b)(2)] and codified as part of MSHA's regulations at 30 C.F.R. 70.100(a) is that the average concen- tration of dust be continuously maintained at or below 2 milli- grams per cubic meter of air (2.0 mg/m3).

It is only "where" (Section 205 of the Act) and "when" (30 C.F.R. 70.101) the respirable dust in the mine atmosphere of the active workings contain more than 5 percent quartz that the 2 milligram standard must be lowered and the operator required to maintain the respirable dust below the 2.0 milligram average con- centration. "When" the mine atmosphere of the active workings contains more than 5 percent quartz, the operator is required to maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings is exposed at or below the respirable dust standard computed under the formula set forth in 30 C.F.R. 70.101.

In, Southern Ohio Coal Co., 16 FMSHRC 1096 (May 13, 1994), Judge Koutras vacated the citation alleging a violation of Sec- tion 70.101 stating that MSHA's policy of having a reduced dust standard follow the mechanized mining units when it moves to a different part of the mine, regardless of reduced quartz levels at the new location, was not logical or rational. An operator should not be held liable for failing to comply with a reduced dust standard at a location "based upon a quartz exposure that may not exist."

In the present case I agree with Respondent's contention that if the Secretary cannot determine compliance with the dust standards through single shift sampling, it surely cannot set a reduced standard based on a single shift sample. Furthermore, the Secretary should not be permitted to ignore concurrent 1990 quartz analysis and use the outdated 1986 reduced dust standard based on a single shift sample to issue the citation in question. I am satisfied from the record that the best indicator of the quartz content during the time frame of this citation is the average of the three samples taken in July and September 1990 which established a new respirable dust standard for DWP 384 of .8 mg.

CONCLUSION

Based upon the stipulations which I accept as established facts and the testimony of the expert witnesses, particularly the testimony of Dr. Morton Corn, I find and conclude that the cita- tion in question should be vacated.

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ORDER

In view of the foregoing findings and conclusions Citation No. 02931949 citing an alleged violation of 30 C.F.R. 70.101 is VACATED and the related proposed civil penalty is set aside.

August F. Cetti
Administrative Law Judge

Distribution:

Carl Charneski, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

Henry Chajet, Esq., James Zissler, Esq., JACKSON & KELLY, 2401 Pennsylvania Avenue, NW, Suite 400, Washington, DC 20037 (Certified Mail)

sh

EXHIBIT A

MSHA sample triggers 2 operator quartz samples and a new standard set by MSHA

.6mg/m1
std. in
effect

7/18/90 9/4/90 9/5/90 9/27/90 9/27/90 9/30/90 10/1/90 10/2/90 10/3/90 10/4/90 10/11/90

MSHA Bridger Bridger Bridger Sample 1 Sample 2 Sample 3 New Std Sample 4 Sample 5 MSHA
samples for Coal Bi-monthly Coal (of 5) (of 5) (of 5)
set by (of 5) (of 5) Citation Quartz at samples sample at sample for taken by taken by taken by MSHA of taken by taken by #2931949 D-60 Drill for Quartz D-60 Drill Quartz at Bridger Bridger Bridger
.8 mg/m3 Bridger Bridger Issued "DWP" at D-60 "DWP" D-60 Drill (MSHA (MSHA (MSHA (MSHA (MSHA based (analyzed Drill (MSHA (MSHA weight weight weight weight weight upon at 10% (MSHA analysis analyzed .1 mg/m3 1.1 1.2
.5 mg/m3) .8 mg/m3 average
Quartz) analyzed equals 1.2 at 15% mg/m3) mg/m3 of
at 14% mg/m3 Quartz)
.7 mg/m3
Quartz) for 5

samples

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Triggers 5 compliance samples pursuant to 30 C.F.R.
71.208(c)