C.W. Mining Company (ALJ decision, May 2, 1996)

Plain-English summary

C.W. Mining Company's Bear Canyon #1 Mine was cited after five operator dust samples averaged 1.9 milligrams of respirable dust per cubic meter. MSHA had assigned a 1.2-milligram limit to a replacement continuous miner, but that lower limit belonged to an older machine that had been scrapped. The replacement machine was subject to a 2.0-milligram limit, so the cited average was within the correct standard. Judge August F. Cetti vacated the citation and dismissed the docket.

Decision snapshot

• Cited standard: 30 C.F.R. § 70.100(a)
• Outcome: Citation No. 9997061 was vacated, and the case was dismissed.
• Key point: A citation based on an incorrectly assigned respirable-dust limit cannot stand when the measured concentration was within the correct limit for the equipment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
May 2, 1996

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-193 Petitioner : A.C. No. 42-01697-03675 :
v. :
: Bear Canyon #1
C.W. MINING COMPANY,
:
Respondent :

DECISION

Appearances: Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah, for Respondent.

Before: Judge Cetti

This case is before me upon a petition for assessment of civil penalties 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 behalf of the Mine Safety and Health Ad- ministration, (MSHA), charges the Respondent, C.W. Mining Com- pany, the operator of Bear Canyon #1 Mine, with the violation of a respirable dust violation of the regulatory safety standard 30 C.F.R. § 70.100(a).

The single citation at issue describes the violation as follows:

Based on the results of five valid dust sam- ples collected by the operator, the average concentration of respirable dust in the work- ing environment of the designated occupation code 036 in mechanized mining united 003-0 was 1.9 milligrams which exceeded the appli- cable limit of 1.2 milligrams. Management shall take corrective actions to lower the respirable dust and then sample each produc- tion shift until five valid samples are taken and submitted to the Pittsburgh Respirable

Dust Processing Laboratory. Approved respir- atory equipment shall be made available to all persons working the area.

At the hearing, counsel for the Secretary stated that an older continuous miner, MMU 003-0, was operating under a reduced respirable dust level of 1.2 milligrams of respirable dust per cubic meters of air. The operator placed this older machine in a non-producing status and it was later scrapped. A new continuous miner was purchased and the new machine was also designated as MMU 003-3. MSHA inadvertently assigned the reduced standard of the old machine, MMU 003-0, to the new machine. The new machine should have been operating on a 2.0 milligrams or respirable level per cubic meters of air and not on the old reduced standard of 1.2 milligrams applicable to the old machine. When the oper- ator sent in his samples on the new mechanized unit 003-3, the average concentration of respirable dust was 1.9 milligrams which was above the 1.2 milligrams standard which had erroneously been assigned to the new machine but within the correct 2.0 milligrams standard.

Thus, it was clear that the citation was issued in error.
Consequently Citation No. 9997061 is vacated.

ORDER

Citation No. 9997061 is VACATED and this case, Docket No.
WEST 95-193 is DISMISSED.

August F. Cetti
Administrative Law Judge

Distribution:

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

Carl E. Kingston, Esq., C.W. MINING COMPANY, 3212 South State Street, P.O. Box 15809, Salt Lake City, UT 84115

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(Certified Mail)

/sh

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