<DOC>
[DOCID: f:ws99342.wais]
RAG SHOSHONE COAL CORP.
WEST 99-342-R
April 9, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
April 9, 2001
RAG SHOSHONE COAL CORP., : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 99-342-R
v. : Citation No. 9895049;
: 7/8/99
:
SECRETARY OF LABOR : Docket No. WEST 99-384-R
MINE SAFETY AND HEALTH : Citation No. 4073211;
ADMINISTRATION (MSHA), : 8/3/99
Respondent :
: Shoshone No. 1
: Mine ID 48-01186
DECISION
Appearances: R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for Contestant;
Kristi L. Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Respondent.
Before: Judge Cetti
Contest proceeding No. WEST 99-342-R was commenced by the
Contestant RAG Shoshone Coal Corporation (Shoshone) with the
filing of a Notice of Contest against Respondent Secretary of
Labor (Secretary) challenging the validity of Citation No.
9895049 in Docket No. WEST 99-342-R. That citation alleges a
non S&S violation of 30 C.F.R. � 70.207(a) pursuant to section
104(a) of the Federal Mine Safety and Health Act of 1977 (Mine
Act). The citation charges Shoshone failed to send MSHA five
valid respirable dust samples or a valid reason for not
sampling the longwall MMU 008-060 for the bimonthly period
May-June 1999.
MMU 008-0-060 is the mechanized mining unit for the
longwall section of the Shoshone No. 1 mine.
About a month later the Secretary directed Shoshone to
include code 060 longwall (return side face worker) designated
occupation in its mine ventilation plan. Shoshone informed the
Secretary it wished to challenge such requirement. The Secretary
then issued Citation No. 4073211 to Shoshone on August 3, 1999,
pursuant to section 104(a) of the Act, 30 U.S.C. � 814(a). That
citation alleges a S&S violation of 30 C.F.R. � 75.370(a)(1)
for mining without a valid mine ventilation plan based upon
Shoshone's failure to include in its ventilation plan the 060
code for sampling the longwall mechanized mining unit
(MMU 008-0-060). Shoshone contested the citation which is
docketed at WEST 99-342-R.
Findings of Fact and Statement of Law
Shoshone operates the Shoshone No. 1 Mine, MSHA ID No.
48-01186 located in Hanna, Wyoming, and is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq. ("the Act"). Shoshone's operations
affect interstate commerce.
The Shoshone No. 1 mine employs approximately 100 miners
and produces coal on one 10 hour shift per day, four days per
week. Equipment maintenance is performed on a separate
nonproducing shift. Coal is mined by continuous mining
machines and longwall mining equipment. The mine has one
longwall working section which is at issue in this proceeding.
Underground coal mine operators are required to perform
sampling for respirable coal mine dust. Under 30 C.F.R.
� 70.207(a), each mine operator is required to take five valid
respirable dust samples from the designated occupation in each
mechanized mining unit during each bimonthly period. A
designated occupation is defined in 30 C.F.R. � 70.2(f) as:
the occupation on a mechanized mining unit
that has been determined by results of
respirable dust samples to have the greatest
respirable dust concentration.
On its longwall section, which is at issue here, unless
the district manager directs otherwise, the operator is required
under 30 C.F.R. � 70.207(e)(7) to sample the designated
occupation as follows:
(e) Unless otherwise directed by the District
Manager, the designated occupation samples
shall be taken by placing the sampling device
as follows:
* * * * *
(7) Longwall section. On the miner who works
nearest the return air side of the longwall
working face or along the working face on the
return side within 48 inches of the corner;
(emphasis added)
Section 30 C.F.R. � 70.207(e)(7), authorizes the district
manager to direct the mine operator to sample a different
designated occupation and authorizes him to direct the placement
of the sampling device in the longwall section. The longwall
designated occupation codes utilized by the Secretary in the
underground coal mines as of July 30, 1999, are listed in
the document received in evidence as Gov. Ex. 7. The parties
stipulated that the Secretary may utilize other codes in
addition to those listed in that document. (Stip. 14).
Shoshone, in sampling its longwall section sampled the
designated occupation of the tailgate shearer operator, Code 044,
since at least October 11, 1983. The parties stipulated the 044
designated occupation code had been in effect nationally since at
least 1978.
Operators such as Shoshone conduct respirable dust sampling
using respirable dust sampling apparatus which include a sampling
pump, a hose at least 36 inches in length, and a cyclone assembly
containing a filter cassette. The pump draws air into the
cyclone which is designed to separate out nonrespirable or larger
particles of dust which fall into the "grit pot." The air
containing the smaller (respirable) dust particles is directed
into the filter cassette. The particles enter the filter
cassette and are deposited on the filter face. At the end of
sampling, the filter cassette is removed from the cyclone
assembly and sent to MSHA for weighing.
MSHA inspectors also conduct sampling on the longwall
section at Shoshone. When they conduct such sampling they
sample various occupation codes such as the shearer operator,
jacksetters, and mechanics in addition to the designated
occupation which Shoshone is required to sample. (Stip. 18).
On April 9, 1999, John Kuzar, District Manager for Coal
Mine Safety and Health District 9, notified Shoshone that it
would be required to conduct sampling of the 060 designated
occupation rather than the 044 designated occupation in the
longwall section. The reason for the change was set out in
the notification letter in part as follows:
Currently, the DO on MMU 008-0 is the
tailgate-side longwall operator (occupation
044). However, Agency sampling conducted
between August 1997 and February 1999 shows
the exposure of the tailgate-side longwall
operator averaged 0.841 mg/m3, while the
jacksetter (041) averaged 1.679 mg/m3 based
on the averages of 7 different surveys during
this time frame. More limited sampling also
shows exposures on the mechanic (004) to be
1.232 mg/m3, the section foreman at 1.645
mg/m3, and the headgate-side longwall
operator (064) at 1.52 mg/m3. These results
show several other occupations to be exposed
to significantly higher concentra- tions of
respirable coal mine dust than the designated
occupation (044). (Gov. Ex. 12).
The notification requires the respirable dust pump to be
transferred between miners whenever necessary to make sure that
the pump always remains with whichever miner is nearest the
return air side of the longwall working face regardless of
normal job assignment or occupation of that miner. It states
in part:
[I]f a jacksetter or mechanic goes downwind
of the tailgate side longwall operator, the
pump must be switched to the jacksetter or
the mechanic for the time that he or she is
the miner working nearest the return air side
of the longwall working face. When the
mechanic or jacksetter returns upwind of the
longwall operator, the pump would then be
switched back to the longwall operator, as
that person would now be the person working
nearest the return air side.
Shoshone wished to challenge the notification of the
district manager that Shoshone would now be required to sample
the 060 designated occupation. For that reason, Shoshone
conducted sampling for the longwall section on the 044
designated occupation for the May-June 1999 bimonthly sampling
period, just as it had done in the past, and submitted the code
044 samples to the Secretary. Shoshone did not sample the 060
designated occupation for the May-June 1999 bimonthly sampling
period, nor were samples provided to the Secretary for the 060
designated occupation for that period. (Stip. 21).
Citation No. 9895049 (Invalid dust samples)
Citation No. 9895049 was issued on July 8, 1999, pursuant
to section 104(a) of the Act, 30 U.S.C. � 814(a). It alleges a
violation of 30 C.F.R. � 70.207(a). Under the heading and
caption "Condition or Practice" the citation alleges as follows:
The Secretary has not received five valid
respirable dust samples or a valid reason for
not sampling MMU 008-0-060 for the bimonthly
period May-June 1999.
Shoshone's contest of the citation is docketed at WEST
99-342-R.
Citation No. 4073211 (re ventilation plan)
The Secretary, almost a month after issuing Citation No.
9895049, directed Shoshone to include the 060 designated
occupation in its ventilation plan for the Shoshone No. 1 mine.
Shoshone did not include the 060 designated occupation in its
ventilation plan as directed by the Secretary. Shoshone informed
the Secretary it wished to challenge the requirement that
Shoshone include the 060 designated occupation in its
ventilation plan. Consequently, MSHA issued Citation No. 4073211
to Shoshone on August 3, 1999, pursuant to section 104(a) of the
Act, 30 U.S.C. � 814(a). The citation alleged a S&S violation
of 30 C.F.R. � 75.370(a)(1) for mining without an approved
ventilation plan.
That citation under the heading and caption "Condition or
Practice" stated:
After hand delivery of memo dated 02 Aug.
1999, production crews proceeded to their
underground work areas to begin production.
This further mining activity is a violation
of 30 CFR 75.370(a)(1), as there is not an
approved ventilation plan in effect as of 02
Aug. 1999, at this operation.
Shoshone contested Citation No. 4073211 which is docketed at
WEST 99-384-R.
MSHA's Program Policy Manual addresses 30 C.F.R. � 70.207.
Excerpts from the Program Policy Manual were attached to the
joint stipulations as Ex. E. The heading and item (e) are as
follows:
70.207 Bimonthly Sampling; Mechanized Mining Units
(e) If the operator's mining procedures
result in the changing of miners from one
occupation to another during a production
shift, the sampling device must remain on or
at the designated occupation (DO). For
example, if an operator alternates the duties
of the continuous operator on a one-half
shift basis between the continuous miner
operator and helper, the dust sampler shall
be worn for one-half of a shift by the
continuous miner operator and the other one-
half of a shift by the helper, while each is
operating the continuous mining machine, or
the sampler shall remain on the machine as
required by this section.
A change in the designated occupation of an
MMU will be considered after the results of
samples collected by MSHA indicate that a
work position other than those identified in
this section should be designated for
bimonthly sampling. When the results of a
sampling inspection demonstrate appreciably
higher respirable dust levels at a
nondesignated occupation within an MMU,
consideration should be given to changing the
designated occupation.
The MSHA Policy Manual item No. 5 provides as follows:
70.208 Bimonthly Sampling; Designated Areas
Selection of Sampling Points Within DA:
The placement of the respirable dust sampling
instrument within a designated area is
critical to obtaining a representative
measurement of respirable dust concentrations
at the location. Dust sampling instruments
should be positioned within designated areas
so that the measurement is indicative of the
highest dust exposure to personnel who are
required to work or travel in that area.
(Emphasis added).
The parties stipulated the 060 designated occupation
computer code for respirable coal mine dust units was established
by MSHA in 1988. At the time of the hearing there were 55 active
longwall units in the United States. Forty seven of these units
sample the 060 designated occupation. In District 9, the first
longwall unit that was required to sample the 060 designated
occupation began to do so in 1994. (Stip. 30). Gov. Ex. 7 lists
the mines with longwall mining units, their locations, and states
the code used to sample the longwall section.
A drawing of the longwall face and the equipment on the face
at the Shoshone No. 1 Mine was received into evidence as Gov. Ex.
2. The longwall face is ventilated by bringing intake air up the
headgate, across the longwall face, and out the tailgate.
Shoshone asserts that the issue with respect to Citation No.
9895049 is whether Shoshone can be required to use the 060
designated occupation for respirable dust sampling of the
longwall section. The Secretary, on the other hand, states the
issue as simply whether Shoshone violated 30 C.F.R. � 70.207(a)
when it failed to submit five valid respirable dust samples. The
issue though worded differently by each party is basically the
same identical issue.
Shoshone states that the issue with respect to Citation No.
4073211 is whether the Secretary can require Shoshone to include
the 060 designated occupation for respirable dust sampling in its
ventilation plan. The Secretary, however states the issue with
respect to Citation No. 4073211 is whether Shoshone violated 30
C.F.R. � 75.370(a)(1) when mining on August 3, 1999, without
having an approved ventilation plan requiring respirable dust
sampling of the longwall using the 060 designated occupation. An
additional issue with respect to Citation No. 4073211, if a
violation of the cited standard is found, is whether such
violation is properly characterized as significant and
substantial.
The parties agree that if a violation is established with
respect to Citation No. 9895049, that a violation is also
established with respect to Citation No. 4073211. In that event
Shoshone, would however continue to contest the significant and
substantial designation of Citation No. 4073211.
The issues largely focus on the validity of the change in
the designated occupation from the 044 code to the 060 code. The
parties are not contesting the specific facts set forth in the
bodies of the citations. Specifically with respect to Citation
No. 9895044, Shoshone stipulates it did not submit samples for
the 060 designated occupation code. With respect to Citation No.
4073211, Shoshone concedes it did not include the 060 designated
occupation code in its ventilation plan even though the Secretary
directed it to do so. The parties have agreed that the testimony
of the inspectors issuing the citations is not necessary for a
resolution of these matters. In fact, the parties at first filed
a motion and a cross-motion for a summary decision stating no
issue of material fact existed. Later Shoshone requested the
matter be set for hearing.
Discussion
The basic question in this case as stated by the Secretary
through counsel at the hearing is whether Shoshone failed to
submit five valid respirable samples for the May-June 1999
sampling period. It is undisputed that Shoshone did in fact
submit five respirable dust samples for the May-June 1999
sampling period for the tailgate shearer operator (code 044) and
did not submit respirable dust samples for code 060. It is
undisputed that for many years prior to May 1999 Shoshone,
pursuant to 30 C.F.R. � 70.207(e)(7), had properly used code 044
prior to receiving the notice from the MSHA district manager to
change from code 044 to code 060 in sampling its longwall
section.
On April 9, 1999, John A Kuzar, District Manager, sent
Shoshone a Designated Occupation Change Notice, MSHA Form 2000-
96, that the DO for MMU 008-0 of Shoshone No. 1 Mine had been
changed to occupation 060. The notice directed Shoshone as
follows:
Notice is hereby given that the "designated
occupation" on which sampling is required
with respect to each working section by Title
30, Code of Federal Regulations, Part 70-
Mandatory Health Standards-Underground Coal
Mines, is changed as follows:
Changed from (occupation code) 044. Changed
to (occupation code) 060 on MMU 008-0
Beginning with the next bimonthly period, you
are hereby directed to initiate action to
establish a bimonthly sampling cycle for the
new "designated occupation" (060).
When collecting samples from DO 060, the
sampling device shall remain at all times on
the miner who works nearest the return air
side of the longwall face. If individual
miners rotate out of the DO position during
sampling, the sampling device shall be
shifted to and worn by the miner rotated into
the DO position. For example, if all miners
are upwind of the tailgate-side longwall
operator, the particular miner doing that job
becomes the DO becuase (sic) he/she is
nearest the return air side of the longwall
face. In this case, the sampling device
shall remain with that miner during bimonthly
sampling. However, if during the sampling
shift another miner travels past the
tailgate-side longwall operator toward the
return air side, that miner would then become
the DO and would wear the pump for the period
of time during the shift that he/she spends
downwind of the tailgate-side shearer
operator. Failure to do so will result in
the collection of invalid samples.
The Notice of Change to D.O. 060 was enclosed in a cover
letter dated April 9 from the district manager to Harry Hales,
Mine Manager for Shoshone stating the reasoning for the change
to D.O. 060 as follows:
RE: Shoshone No. 1 Mine
ID No. 48-01186
Change in Designated Occupation
MMU 008-0
Dear Mr. Hales:
In order to provide reasonable assurance that
all miners are equally protected against
overexposure to respirable dust, the Mine
Safety and Health Administration adopted the
designated occupation (DO) concept. This
concept is based on the reasoning that if the
environment of those whose exposure is the
greatest complies, then the environment of
all other miners on the unit will comply
Currently, the DO on MMU 008-0 is the
tailgate-side longwall operator (occupation
044). However, Agency sampling conducted
between August 1997 and February 1999 shows
the exposure of the tailgate-side longwall
operator averaged 0.841 mg/m3, while the
jack-setter (041) averaged 1.679 mg/m3 based
on the averages of different surveys during
this time frame. More limited sampling also
shows exposures on the mechanic (004) to be
1.232 mg/m3, the section foreman at 1.645
mg/m3, and the headgate-side longwall
operator (064) at 1.52 mg/m3. These results
show several other occupations to be exposed
to significantly higher concentra-tions of
respirable coal mine dust than the designated
occupation (044).
Therefore, in accordance with paragraph
70.207(e), Volume V, of the MSHA Program
Policy Manual and consistent with section
70.207(e)(7) of Title 30, Code of Federal
Regulations, you are being notified that the
DO for MMU 008-0 has been changed to
occupation 060, the miner who works nearest
the return air side of the longwall working
face. Please see the enclosed Designated
Occupation Change Notice, MSHA Form 2000-96.
Bimonthly samples taken at this location will
provide a much more accurate indicator of
whether all miners are being adequately
protected from exposure to excessive levels
of dust. This change becomes effective
beginning with the May-June bimonthly period.
When collecting samples from DO 060, the
sampling device shall remain at all times on
the miner who works nearest the return air
side of the longwall face. If individual
miners rotate out of the DO position during
sampling, the sampling device shall be
shifted to and worn by the miner rotated into
the DO position. For example, if all miners
are upwind of the tailgate-side longwall
operator, the particular miner doing that job
becomes the DO because he/she is nearest the
return air side of the longwall face. In
this case, the sampling device shall remain
with that miner during bimonthly sampling.
However, if during the sampling shift another
miner travels past the tailgate-side longwall
operator toward the return air side, that
miner would then become the DO and would wear
the pump for the period of time during the
shift that he/she spends downwind of the
tailgate-side shearer operator. Failure to
do so will result in the collection of
invalid samples.
As previously stated when Shoshone sent respirable dust
samples using the 044 code rather than the 060 code for sampling
the longwall section for the bimonthly period May-June 1999,
MSHA declared the samples were invalid and issued Citation No.
9895049.
In � 202(b)(2) of the Mine Act, 30 U.S.C. � 842(b)(2),
Congress has enacted a statutory requirement that each operator
must "continuously maintain the average concentration of
respirable dust in the mine atmosphere during each shift to
which each miner in the active workings of such mine is exposed
at or below 2.0 milligrams of respirable dust . . . ." (Emphasis
added).
The statutory limitation of 2.0 milligrams of respirable
dust specified in � 202(b)(2) of the Act is repeated in the
Secretary's regulations at 30 C.F.R. � 70.100(a) which states:
Each operator shall continuously maintain
the average concentration of respirable dust
in the mine atmosphere during each shift to
which each miner in the active workings of
each mine is exposed at or below 2.0
milligrams of respirable dust per cubic meter
of air as measured with an approved sampling
device . . . . (Emphasis added).
Congress expressly stated that the purpose of this
respirable dust limitation in � 201(b) of the Mine Act, 30 U.S.C.
� 841(b) is as follows:
"To provide to the greatest extent possible,
that the working conditions in each
underground coal mine are sufficiently free
of respirable dust concentrations in the mine
atmosphere to permit each miner the
opportunity to work underground during the
period of his entire adult working life
without incurring any disability from
pneumoconiosis or any other occupation-
related disease during or at the end of such
period. (Emphasis added)."
The Secretary states that the basic question in this case
is whether Shoshone failed to submit five valid respirable dust
samples for the May-June 1999 sampling period and that all other
issues hinged on the answer to that question.
Counsel for Shoshone in response pointed out that it did
submit samples for the May-June 1999 sampling period for the
tailgate shearer operator (code 044) just as it had properly done
for many years before May 1999. Counsel for Shoshone stated the
real issue is whether MSHA can require Shoshone to sample as the
designated occupation the 060 code and require Shoshone to place
in its ventilation plan the 060 code as the designated occupation
to sample the longwall. It is Shoshone's position that for
reasons set forth in its brief that the 060 code is not a valid
code and the Secretary's imposition of the use of the 060 code
upon Shoshone is "contrary to law, unreasonable, capricious, and
an abuse of discretion." Shoshone pointed out that � 202(b)(2)
of the Act, 30 U.S.C. � 842(b) and 30 C.F.R. � 70.100(a) are
directed at regulating the "average" concentration of respirable
coal mine dust to which a miner is exposed during a shift and
that the 060 code does not do that. The 060 code does not sample
an average concentration of respirable dust to which any miner is
exposed over the course of a shift. Shoshone's counsel correctly
pointed out that both the Act and the regulation � 202(b)(2) of
the Act and 30 C.F.R. � 70.100(a)] have the identical language.
Both the Act and the regulation state that each operator:
shall continuously maintain the average
concentration of respirable dust in the mine
atmosphere during each shift to which each
miner in the active workings of each mine is
exposed at or below 2.0 milligrams of
respirable dust per cubic meter of air . . .
. (Emphasis added).
The Secretary in support of her position in this matter
cites the Tenth Circuit Appellate Court decision in American
Mining Congress v. Marshall (AMC), 671 F.2d 1251 (1982), Jim
Walters Resources, Inc. 14 FMSHRC 83 (ALJ Koutras, January 1992),
and Consolidation Coal Co., 9 FMSHRC 1509 (ALJ Weisberger, August
1987).
I agree that the reasoning of the judges as set forth in
their respective decisions fully support the Secretary's position
in this matter.
The Tenth Circuit Court firmly established that the
regulations promulgated by the Secretary, under the authority of
the Mine Act, instituting a "designated area sampling" program,
designed to measure concentrations of respirable dust to which
coal miners were exposed as they worked and traveled outby areas
of the mine, were not arbitrary and capricious in employing area
sampling rather than personal sampling to measure compliance with
respirable dust standards.
In American Mining Congress case, the petitioner (AMC)
challenged the designated area sampling regulations promulgated
by the Secretary. The Petitioner in that case argued that the
Secretary's decision to employ area sampling rather than
"personal sampling to measure compliance with the respirable dust
standard is arbitrary and capricious." AMC argued that in
passing the respirable dust regulation, "Congress was concerned
with reducing the level of individual exposure to respirable
dust. Since the only dust to which an individual miner is
exposed is that dust within his breathing zone, and since area
sampling does not sample the air within an individual's breathing
zone, it fails to reflect the level of individual exposure and
thus fails to achieve Congress' purpose."
The Tenth Circuit Court rejected the above quoted argument
and stated its conclusion as follows:
We do not think that the Secretary's
choice of the area sampling program was
arbitrary, capricious, or an abuse of
discretion under � 706(2)(A) of the APA.
The Court stated that in reviewing the Secretary's
regulations, "we must constantly bear in mind that Congress
delegated sweeping authority to the Secretary. The statute
provides that "samples shall be taken by any device approved by
the Secretary . . . and in accordance with such methods, at such
locations, at such intervals, and in such manners as the
Secretary prescribes, 30 U.S.C. � 842(a). Because Congress has
conferred such wide ranging discretion on the Secretary, this
court should be hesitant in imposing constraints on his power.
The need for judicial restraint is further heightened by the
realization that courts do not share the Secretary's expertise
in this highly technical area. The ultimate standard of review
is a narrow one. The court is not empowered to substitute its
judgment for that of the agency."
The Court emphasized the Secretary's sweeping authority by
stating, "Since there is no perfect sampling method, the
Secretary has discretion to adopt any sampling method that
approximates exposure with reasonable accuracy. The Secretary
is not required to impose an arguably superior sampling method
as long as the one he imposes is reasonably calculated to
prevent excessive exposure to respirable dust."
In Consolidation Coal Company v. Secretary of Labor, 9
FMSHRC 1509 (August 1987) Judge Weisberger relying on the plain
language of 30 C.F.R. � 70.207(e)(7) held, in effect, that when
a longwall miner No. 1 of X occupation wears the dust sampler
because he is the miner nearest to the return air side of the
longwall working face, goes on a fresh air break, and as a
result, miner No. 2 of the same or different occupation than
miner No. 1 becomes the miner who is nearest to the return air
side of the longwall, the dust sampler must be passed from miner
No. 1 to miner No. 2 and worn by Miner No. 2 as long as miner
No. 2 remains the miner nearest to the return air side of the
longwall. When miner No. 1 returns from his break and again
becomes the miner who is nearest to the return air side of the
longwall, the sampling device must be passed back to miner
No. 1 by miner No. 2.
The third case which the Secretary cites as directly
supporting her position is Judge Koutras' decision in Jim Walter
Resources, Inc. v. Secretary of Labor, 14 FMSHRC 83 (January
1992). The primary issue in that case is the same issue we have
in the instant case. In both cases, the operator of a mine
argued that the Secretary acted "arbitrarily and unreasonably"
when it mandated a change in the "designated occupation" to be
used in sampling the longwall section from code 044 to code 060.
Judge Koutras rejected these contentions and found that in
mandating the change in the designated occupation, MSHA acted
within its authority and in strict compliance with the sampling
procedures found in � 70.207(e)(7), and in so doing, it acted
reasonably in carrying out the intent of Congress and the Act to
insure that miners are protected from excessive concentrations
of respirable dust.
There appears to be some question as to the use of the word
"occupation," "designated occupation," and "code." In that
regard the testimony of Robert A. Thaxton discussing how and why
occupation and code numbers came to be used in the regulations is
of interest. Thaxton's testimony was presented as a "health
expert" in the area of industrial hygiene with many years
experience concerning respiratory dust sampling regulations.[1]
(Tr. 16-18). He explained that originally there was only one
designated occupation in the longwall section which was the
headgate shearer (code 064) which MSHA still has. Thaxton
testified that "changing technology" caused MSHA to create the
044 code which was the tailgate shearer operator and later the
060 code. Asked if there was any significance to these code
numbers Thaxton testified:
The numbers are only computer codes so that
we have a way of tracking the samples. They
don't relate back to actual particular jobs
per se. We try to locate them in relation to
positions that mining companies typically
use. When the initial codes came out, when
the reg started in the 1970s, it was that we
tried to use codes that were familiar to
union mines because they had established work
codes for people. (Tr. 82-83).
Thaxton testified that 060 code is the occupation code that
most represents the highest dust concentration on the longwall
face and the use of that code would result in all miners working
in the area being protected as long as the 060 occupation is
protected. (Tr. 120). He also stated you would normally expect
the air downwind of the shearer to have a higher concentration
than the air upwind. (Tr. 155-156).
Thaxton on further questioning testified:
Q. Why didn't MSHA put all operators on
the 060 code back in 1988 when we added the
060 code.
A. Even though we added the code and made
it available, we still needed to evaluate
each mine, each longwall, on a mine-by-mine
basis.
Those changes weren't taken lightly.
There was a change in technology, a change in
mining systems. Not all mines, just because
we created the code in 1988, were at a point
where they needed to be on the 060 code.
There are several mines even today that are
still not on the 060 because it's not the
appropriate code for the method of mining
that they practice.
Q. Is the 060 code, based on what you
know, the appropriate code to use at the
Shoshone Mine?
A. From what I observed on the shift that
I was there and what I have seen from
inspector notes and talking with inspectors
that have been present at the Shoshone Mine,
the 060 code is the appropriate code for that
particular longwall. (Tr. 166-167).
Q. (BY MS. FLOYD) Now there have been
allegations in this case that the 060 code is
not a designated occupation code but rather a
composite code consisting of numerous job
positions. Would you agree with that type of
characterization?
A. No.
Q. Why not?
A. The designated occupation is not a
compilation of codes. It does include
multiple miners doing their normal tasks, and
that's what the designated occupation was set
out to do with the intent from the definition
in the regulation. To say that it's a
compilation of multiple codes would mean that
we are taking a lot of different jobs and
combining them into one, which we are not
doing.
Q. So in your opinion is the 060 an
appropriate designated occupation code?
A. Yes, it is.
Q. And why do you say that?
A. It actually follows the requirements
of the regulation which was proposed and had
notice of comment period. It also goes to
exactly what Congress intended for us to do;
that is, to select an area that would
represent what miners are exposed to so that
we can provide protection to wherever miners
normally work or travel, to see that their
concentrations are maintained at or below the
applicable standard. (Tr 111-112).
Q. And the 060, to the extent that
anybody is downwind of the shearer, keeps it
down in that higher concentration of dust,
does it not, or that is the intention?
A. The intention is to get the highest
dust concentration on the section.
Q. And I gather that sometimes when you
are sampling, the 060 is the highest, leaving
out the 061, but the 060 is the highest on
the face and sometimes it is not?
A. Generally speaking, yes, that's
correct. Most of the time the 060 is the
highest concentration. There are times when
it will not represent the highest
concentration, as indicated even on the
sample results that we looked at earlier this
morning.
With respect to the inspector's S&S finding in Citation No.
4073211, Thaxton on cross examination was asked:
Q. When in the spring, after Mr. Kuzar
sent the letter on April 9th and said you
should use the 060, that if they had gone
ahead and used the 060, they wouldn't have
been cited for not submitting valid samples,
is that correct?
A. That's correct.
Q. So there would not have been a
challenge?
A. That's correct.
Q. And by doing it the way they did, they
had a citation that they could challenge?
A. Yes.
Q. And if after they were notified that
the 044 samples were not being considered
valid, if they had submitted five samples on
060 before the end of the bimonthly period,
they would have been in compliance, would
they not?
A. That's correct.
Q. They wouldn't have had a citation
challenge?
A. In regard to the sampling, that's
correct. (Tr. 133-134).
Thaxton on further questioning testified:
Q. Why didn't MSHA put all operators on
the 060 code back in 1988 when we added the
060 code.
A. Even though we added the code and made
it available, we still needed to evaluate
each mine, each longwall, on a mine-by-mine
basis.
Those changes weren't taken lightly.
There was a change in technology, a change in
mining systems. Not all mines, just because
we created the code in 1988, were at a point
where they needed to be on the 060 code.
There are several mines even today that are
still not on the 060 because it's not the
appropriate code for the method of mining
that they practice.
Q. Is the 060 code, based on what you
know, the appropriate code to use at the
Shoshone Mine?
A. From what I observed on the shift that
I was there and what I have seen from
inspector notes and talking with inspectors
that have been present at the Shoshone Mine,
the 060 code is the appropriate code for that
particular longwall. (Tr. 166-167).
On further questioning Thaxton testified:
Q. (BY MS. FLOYD) Now there have been
allegations in this case that the 060 code is
not a designated occupation code but rather a
composite code consisting of numerous job
positions. Would you agree with that type of
characterization?
A. No.
Q. Why not?
A. The designated occupation is not a
compilation of codes. It does include
multiple miners doing their normal tasks, and
that's what the designated occupation was set
out to do with the intent from the definition
in the regulation. To say that it's a
compilation of multiple codes would mean that
we are taking a lot of different jobs and
combining them into one, which we are not
doing.
Q. So in your opinion is the 060 an
appropriate designated occupation code?
A. Yes, it is.
Q. And why do you say that?
A. It actually follows the requirements
of the regulation which was proposed and had
notice of comment period. It also goes to
exactly what Congress intended for us to do;
that is, to select an area that would
represent what miners are exposed to so that
we can provide protection to wherever miners
normally work or travel, to see that their
concentrations are maintained at or below the
applicable standard. (Tr. 111-112)
Shoshone correctly points out that the 060 code does not
identify any specific occupation. If Shoshone is attempting to
infer an inconsistency in 060 code, it fails because 30 C.F.R.
� 70.207(e)(7), which was promulgated after public notice and
comment also does not identify any specific occupation. It just
uses the term "miner" and identifies that "miner" as the miner
who works nearest the return air side of the longwall working
face. There is no inconsistency in this regard between 30 C.F.R.
� 70.207(e)(7) and the 060 code.
Shoshone asserts that the Secretary's adoption of the
060 designated occupation requires public notice and comment
rulemaking on a nationwide basis. It is 30 C.F.R. � 70.207(e)(7),
however, and not 060 code that establishes the district manager
authority to direct where in the longwall section the sampling
device is placed in taking the designated occupation sample of
the longwall section. That authority was specifically given to
the district manager with the promulgation of that regulation,
30 C.F.R. � 70.207(e)(7). That regulation was promulgated only
after public notice in the Federal Register and after opportunity
for written and oral comment after five public hearings in
various cities where there was opportunity for public discussion
and comment. I find merit in the Secretary's assertion that
the 060 code is the agency's interpretation of 30 C.F.R.
� 70.207(e)(7). The implementation of the 060 code is a valid
exercise of the authority given by 30 C.F.R. � 70.207(e)(7).
It is also a permissible strategy for the agency to carry out
the purpose and goal given to the agency by Congress to insure
miners are protected from excessive concentrations of respirable
dust.
A fair reading of 30 C.F.R. � 70.207(e)(7) clearly gives
the district manager the authority to direct where the sampling
device for sampling for the longwall section shall be placed.
Under 30 C.F.R. � 70.207(e)(7) the district manager is authorized
to direct the placing of the sampling device in taking the
respirable dust sample for the longwall section. The regulation
does not specify any occupation other than the "miner" who is
working nearest the return air side "or who works" along the face
of the return side within 48 inches of the corner." The
Secretary's implementation of the 060 code is a reasonable and
proper exercise of authority specifically given to the MSHA
district manager by 30 C.F.R. � 70.207(e)(7). The 060 code is
the agency's rationale interpretation of the regulation.
The Secretary's determination regarding the application of
the Secretary's MSHA standards is entitled to deference. It is
well established that if a regulation's meaning is not plain, an
adjudicatory body should give great deference to the Secretary's
interpretation of a regulation the Secretary has promulgated
under a statute it is entrusted with administering. The
Secretary's interpretation must be accepted as long as it is not
plainly erroneous or inconsistent with the language or the
purpose of the regulation. Martin v. OSHRC, 499 U.S. 144, 148-
149 (1991); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460-
461 (D.C. Cir. 1994); Secretary of Labor v. Cannelton Industries,
Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989); Emery Mining Corp. v.
Secretary of Labor, 744 F.2d 1411, 1414-1415 (10th Cir. 1984).
In addition, it is well established that an adjudicatory body
should give especially great deference to an agency's
interpretation of a regulation when the regulation pertains to a
complex and technical regulatory program. Thomas Jefferson Univ.
v. Shalala, 512 U.S. 504, 514 (1994); Pauley v. Beth Energy
Mines, Inc., 501U.S. 680, 697 (1991). Finally, it is well
established that a statute or regulation that is intended to
protect the health and safety of individuals must be interpreted
in a broad manner to actually achieve that goal. Cannelton
Industries, 867 F.2d at 1435, and Donovan v. Stafford Const. Co.,
732 F.2d 954, 959-960 (D.C. Cir. 1984) (both stating that a
health and safety statute must be interpreted broadly); Brennan
v. OSHRC, 491 F.2d 1340, 1344 (2nd Cir. 1974) (stating that a
health and safety regulation must be interpreted broadly).
Conclusion re: Citation No. 9895049
In summary I find that the Secretary's implementation of
the 060 code is not a substantive rule to which the APA's
notice and comment provision apply. The Secretary complied
with all the necessary procedural requirements including APA
notice and comment provision before promulgating 30 C.F.R.
� 70.207(e)(7), which gives the MSHA district manager authority
to direct the placement of the sampling device in the longwall
section of the mine in taking the bimonthly respirable dust
sampling of the longwall section as required by 30 C.F.R.
� 70.207(e)(7).
Thus I agree with the Secretary's position in this case.
Shoshone's contention that MSHA acted unreasonably and
arbitrarily when the district manager directed Shoshone to
change the designated occupation from occupation code 044 to
060 for purposes of the bimonthly sampling of the longwall in
Shoshone Mine No. 1 is rejected. I find that in mandating the
change in the designated occupation, MSHA acted within its
authority and in compliance with the sampling procedures found
in � 70.207(e)(7), and in so doing, it acted reasonably in
carrying out the intent of Congress and the Act to insure that
miners are protected from excessive concentrations of respirable
dust. The preponderance of the evidence and the record as a
whole clearly establishes the violation charged in Citation No.
9895049 and that contested citation is affirmed.
Conclusion re: Citation No. 4073211
The parties jointly stipulated that if a violation is
established with regard to Citation
No. 9895049, Shoshone concedes that a violation with respect to
Citation No. 4073211 is also established. (Stip. 38).
In view of the foregoing, the violation of 30 C.F.R.
� 75.370(a)(1) is established as alleged in Citation No. 4073211
for mining activity on August 2, 1999, at which time there was no
approved ventilation plan in effect for the Shoshone No. 1 Mine.
The citation, however, was issued as an S&S [2] violation
and under stipulation No. 38 the parties agreed that Shoshone
would continue to contest the significant and substantial
designation of Citation No. 4073211.
It appears from Shoshone Ex. 1 that MSHA first instructed
Shoshone to put the 060 in its ventilation plan and to submit the
amended plan to MSHA by July 23, 1999. So up until at least July
23 the designated occupation in the mine's ventilation plan was
044. MSHA has a policy when there is an impasse in negotiations
between the Secretary and the company regarding a change in the
mine plan, the company can take a technical citation so that
there can be a challenge to the plan and that is what Shoshone
did. (Tr. 134-135).
In any event I find that the preponderance of the evidence
presented in this case fails to establish the third element of
the Mathies formula. Citation No. 4073211 is modified to delete
the S&S finding and as so modified the citation is affirmed.
ORDER, DOCKET NO. WEST 99-342-R
The contested Citation No. 9895049 in Docket No. WEST 99-
342-R citing a violation of 30 C.F.R. � 70.207(a), is AFFIRMED.
The contest of that citation filed by Shoshone is DENIED and
DISMISSED.
**FOOTNOTES**
[1]: See Robert Thaxton's curriculum, Ex. G-1.
[2]: A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature. See Cement Div., Nat'l
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co.,
6 FMSHRC 1 (Jan. 1984), the Commission further explained:
In order to establish that a violation of
a mandatory safety standard is significant
and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard - that
is, a measure of danger to safety -
contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
Id. At 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).
ORDER, DOCKET NO. WEST 99-384-R
The contested S&S Citation No. 4073211 in Docket No. WEST
99-384-R citing a violation of 30 C.F.R. � 75.370(a)(1) is
modified to delete the S&S finding and as so modified is
AFFIRMED. The contest of that citation filed by Shoshone is
granted to the limited extent of deleting the S&S finding but in
all other respects is DENIED and the case is DISMISSED.
August F. Cetti
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301
Grant St., 20th Floor, Pittsburgh, PA 15219-1410 (Certified
Mail)
Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, P.O. Box 46550, Denver, CO
80201-6550 (Certified Mail)
/sh
KRISTI FLOYD ESQ
OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR
1999 BROADWAY #1600
P O BOX 46550
DENVER CO 80201-6550
R HENRY MOORE ESQ
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