824 F.2d 1071 (D.C. Cir. 1987), 86-1403, Consolidation Coal Co. v. Federal Mine Safety and Health Review Com'n

Docket Nº:86-1403.
Citation:824 F.2d 1071
Party Name:CONSOLIDATION COAL COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, et al., Respondents, Coal Employment Project, United Mine Workers of America, Intervenors.
Case Date:July 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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824 F.2d 1071 (D.C. Cir. 1987)




Coal Employment Project, United Mine Workers of America, Intervenors.

No. 86-1403.

United States Court of Appeals, District of Columbia Circuit

July 24, 1987

Argued March 6, 1987.

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Petition for Review of an Order of the Federal Mine Safety and Health Review Commission.

Robert M. Vukas, with whom Richard J. Klein, was on brief, for petitioner.

John Longstreth, with whom Kathryn P. Broderick, Edward M. Green, Henry Chajet and Michael F. Duffy, Washington, D.C., were on brief, for amicus curiae, American Min. Congress.

Ann Rosenthal, Counsel, Appellate Litigation, Dept. of Labor, with whom Linda Leasure, Atty., Dept. of Labor, Arlington, Va., was on brief, for respondent.

Dennis Clark, with whom Michael H. Holland and Mary Lu Jordan, Washington, D.C., were on brief, for intervenor, United Mine Workers of America.

J. Davitt McAteer, Betty Jean Hall and John F. Colwell, Washington, D.C., were on brief, for intervenor, Coal Employment Project.

Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge D.H. GINSBURG.

WALD, Chief Judge:

Petitioner Consolidation Coal Company ("Consol") was issued a citation under Sec. 104(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. Sec. 814(a). The citation alleged that Consol had violated 30 C.F.R. Sec. 70.100, which sets forth respirable dust standards for coal mines, and that the violation was "of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard." 30 U.S.C. Sec. 814(d)(1), (e). 1 Consol conceded that it had violated the standard, but contested the citation on the ground that the violation should not have been designated as significant and substantial. Following an evidentiary hearing, an Administrative Law Judge ("ALJ") affirmed the contested citation and upheld the designation of the violation as significant and substantial. Consolidation Coal Co., 5 F.M.S.H.R.C. 378 (1983). The ALJ's decision was affirmed by the Federal Mine Safety and Health Review Commission ("Commission"), which concluded that "when the Secretary proves that a violation of 30 C.F.R. Sec. 70.100(a) ... has occurred, a presumption that the violation is a significant and substantial violation is appropriate." Consolidation Coal Co., 8 F.M.S.H.R.C. 890, 899 (1986). Consol then filed a petition for review in this court. Consol argues that the presumption that any violation of the respirable dust standard is significant and substantial conflicts with the statutory enforcement scheme and lacks a rational basis. In addition, Consol contends that the sampling techniques used to measure concentrations of respirable dust are so inaccurate that they cannot serve as the basis of a determination that Consol's violation of the respirable dust standard was significant and substantial. We conclude that the Commission properly affirmed the designation of Consol's violation of the respirable dust standard as significant and substantial.


  1. Statutory and Regulatory Framework

    Until 1977, coal mine health and safety were regulated under the Federal Coal Mine Health and Safety Act of 1969 ("Coal Act"), 30 U.S.C. Sec. 801 et seq. The Federal Mine Safety and Health Act of 1977 ("Mine Act") was created by the enactment of the Federal Mine Safety and Health Amendments Act, Pub. L. No. 95-164, 91 Stat. 1290, which amended the Coal Act and placed all forms of mining under a single regulatory scheme.

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    The Mine Act authorizes the Secretary of Labor ("Secretary") to promulgate mandatory health and safety standards, 30 U.S.C. Sec. 811, and requires frequent inspections of mines to determine whether those standards have been complied with. 30 U.S.C. Sec. 813. The enforcement provisions of the Mine Act are set forth in Sec. 104 of the Act, 30 U.S.C. Sec. 814. Section 104(a) provides that an inspector who determines that a mine operator has violated a mandatory standard "shall, with reasonable promptness, issue a citation to the operator." 30 U.S.C. Sec. 814(a). The citation must "fix a reasonable time for the abatement of the violation." Id. For each violation, the mine operator is assessed a civil penalty of not more than $10,000 by the Secretary. 30 U.S.C. Sec. 820(a). In addition, if a violation is not abated within the allotted time, the Secretary must issue a withdrawal order requiring the removal of all miners from the area of the mine affected by the violation until the violation is abated. 30 U.S.C. Sec. 814(b).

    Sections 104(d) and 104(e) provide for more severe sanctions to be applied when an operator commits a series of violations which meet certain criteria. Section 104(d) is triggered when an inspector finds that a violation is significant and substantial and "caused by an unwarrantable failure" of the mine operator to comply with a mandatory health or safety standard. 30 U.S.C. Sec. 814(d)(1). 2 A 90-day probationary period begins when a citation containing these findings is issued. If another unwarrantable violation occurs during the probationary period, the Secretary is required to issue an immediate withdrawal order, without first giving the mine operator an opportunity to abate the violation. Id. Once a withdrawal order has been issued under Sec. 104(d)(1), additional withdrawal orders must be issued for subsequent unwarrantable violations until an inspection of the mine discloses no unwarrantable violations. 30 U.S.C. Sec. 814(d)(2).

    Section 104(e) imposes a similar 90-day probationary period, beginning when the Secretary notifies an operator of the existence of a pattern of significant and substantial violations. An immediate withdrawal order must be issued if another significant and substantial violation is found within the probationary period. 30 U.S.C. Sec. 814(e)(1). After such a withdrawal order has been issued, the pattern can be terminated only by an inspection of the entire mine that reveals no significant and substantial violations. 30 U.S.C. Sec. 814(e)(3).

    The mandatory standard violated by Consol is set forth in 30 C.F.R. Sec. 70.100(a), which requires mine operators to "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 [mg/m 3] of air." This standard adopts the statutory requirement of 30 U.S.C. Sec. 842(b)(2), which was enacted in 1969 as part of the Coal Act. One of the primary purposes of the Coal Act was the prevention of respiratory diseases, including coal workers' pneumoconiosis ("black lung disease"), chronic bronchitis, and emphysema caused by exposure to respirable coal mine dust. See 30 U.S.C. Sec. 841(b).

    Coal mine operators are required to take "accurate samples of the amount of respirable dust in the mine atmosphere to which each miner ... is exposed" and to submit those samples to the Secretary for analysis. 30 U.S.C. Sec. 842(a). In 1980, the Mine Safety and Health Administration ("MSHA") promulgated revised regulations governing dust sampling procedures. See 45 Fed.Reg. 23,990 (1980). The regulations require mine operators to collect and submit two types of respirable dust samples. Id.

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    at 23,990-91; 30 C.F.R. Secs. 70.207, 70.208. The first type, "designated area samples," are taken at particular locations in the mine at which dust is likely to be generated. This case involved the second type, "designated occupation samples," which are taken for each "mechanized mining unit" in the mine. 3 One occupation on each mechanized mining unit is designated as most hazardous in terms of exposure to respirable dust. The samples are collected by having the miner who performs the designated occupation wear the sampling device or by placing the sampling device near that miner's normal work position. The regulations require mine operators to collect and submit five samples during each bimonthly period for each mechanized mining unit; the dust concentrations of the five samples are averaged to determine if the respirable dust standard has been violated.

  2. Prior Proceedings In This Case

    Pursuant to the designated occupation sampling regulations, Consol collected five respirable dust samples in January, 1982 for the continuous miner occupation in section 026-0 of the Blacksville No. 1 Mine in Monongalia County, West Virginia. 4 MSHA's analysis of the samples revealed respirable dust concentrations of 8.1, 6.3, 5.1, 0.7, and 0.4 mg/m 3. 5 Thus, the average concentration for the five samples was 4.1 mg/m 3.

    Based on these test results, on February 16, 1982, an MSHA inspector issued a citation under Sec. 104(a) of the Mine Act, 30 U.S.C. Sec. 814(a), alleging that Consol had violated the respirable dust standard, 30 C.F.R. Sec. 70.100(a), and that the violation was significant and substantial. Consol was able to abate the violation without making any changes in ventilation or mining procedures. According to Consol, "[t]he only act necessary to achieve abatement was to 'babysit' the sampling device to ensure its reliable functioning." Brief of Consolidation Coal Company at 8-9. The citation was terminated on March 5, after Consol submitted five samples which showed respirable dust concentrations of 0.2, 0.2, 0.5, 0.7, and 0.8 mg/m 3.

    The designation of Consol's violation as significant and substantial was consistent with MSHA policy guidelines adopted in response to the Commission's decision in Cement Division, National Gypsum Co., 3 F.M.S.H.R.C. 822...

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