**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

 

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#### ORDER ON MOTION TO EXPEDITE

 

 

            Before the Court isRespondent, American Tripoli’s “Motion to expedite proceedings with respect tocertain enforcement actions.” (“Motion”).  Pursuant to 29 C.F.R. §§ 2700.10 and2700.52, American Tripoli (“Tripoli”) “specifically requests that a hearing onCitation Nos. 9539786 and 9539787 and Order Nos. 9539789 and 9539790 be heardon an expedited basis,” and it adds that because of “its factual similarity inallegations, Citation No. 9539788 should also be included in the expeditedproceeding.”  Motion at 1.  Thereafter, the Secretary filed its Opposition tothe Motion. (“Opposition”). The Court held a conference call on December 7,2023, to better understand the controversy. (“Conference Call”)

 

            For the reasonswhich follow, the Court **GRANTS**the Motion for an **EXPEDITED PROCEEDING**for the purpose of a hearing on the citations and orders identified above. TheCourt notes that there is the related Secretary’s Motion to Compel Discovery,which was filed on November 30, 2023.  A ruling on that discovery motion willbe forthcoming.  Because the Court is issuing its Order for Docket Reallocationtoday, that discovery issue will be limited to Citation Nos. 9539786, 9539787and 9539788 to the new docket, along with all related actions such as the (b)orders and the numerous modifications to them.  Following its ruling on theSecretary’s Motion to Compel Discovery, the Court will be promptly arranging aconference call to establish a date for the commencement of a hearing regardingthese matters.  

 

**Background**

 

            Briefly stated,first there is **Citation No. 9539786**, which alleges a violation of 30 C.F.R. § 56.5001(a) and 30 C.F. R. 56.5005.[1] The former standard speaks to the requirement that “exposure to airbornecontaminants ... shall not exceed the TLV's established by the AmericanConference of Governmental Industrial Hygienists.”  *Aluminum Company ofAmerica*, 15 FMSHRC 1821, n.6.  The latter standard requires the use ofrespirators “which are applicable and suitable for the purpose intended.”  *Couer-Rochester*1995 WL 502650, (Aug. 1995) (ALJ).  

 

             As mentioned, Tripoli’s Motion also seeks to includeCitation No. 9539788 in its motion.  That citation cites 30 C.F.R. §56.5002. That standard is brief.  Titled, “Exposure monitoring,” it provides “Dust, gas,mist, and fume surveys shall be conducted as frequently as necessary todetermine the adequacy of control measures.” 

            

            The full text ofthe alleged violation contained in the section 104(a) Citation No. 9539786,stated: 

 

The MillAssociates were exposed to a shift-weighted averages of 1.64 mg/m3,   [**‘mg/m3’** stands for one-thousandth ofa gram per cubic meter of air] 1.33 mg/m3, and 1.77 mg/m3 respirablesilica-bearing dust on 03/21/2023. This exceeded the Threshold Limit Value(TLV) of 0.15 mg/m3 times the error factor (1.20 for respirable free silicadust sampling and analysis). A Respiratory Protection Program (RPP) meeting therequirements of ANSI Z88.2 - 1969 was not in place. The operator's RPP wasdeficient in that; the mine operator had not conducted their own sampling asrequired, there was no-one administering the program        (the program statesthat it will be administered by the Safety Manager, a position that iscurrently open at the mine), the miners have not been medically evaluated to beable to wear a respirator, the respirators listed in the plan were not approvedat the miner's exposure level, and the miners had not been fit tested. Theabatement date has been set to allow the operator time to: correct their RPP tobe compliant with ANSI Z88.2-1969, have all affected miners medically evaluatedto be able to wear a respirator, and to provide approved, fit tested,respiratory protection for all affected miners (Any powered air-purifyingrespirator with a high-efficiency particulate filter (PAPR), or Anysupplied-air respirator operated in continuous-flow mode). The mine operatormust establish engineering controls to reduce the silica-bearing dust exposureto less than the TLV.

 

Petition at 85.

 

            The 104(a) citationlisted the injury or illness as “highly likely” and “permanently disabling,”and consequently as “significant and substantial.” The negligence was listed as“high.”

            

            Then there is**Citation No. 9539787**, another 104(a) citation.  Italleged the same standards alleged to have been violated in Citation No.9539786 – 30 C.F.R. § 56.5001(a) and 30 C.F.R. 56.5005. The full text of thealleged violation contained in that section 104(a) citation stated:  

 

Standard56.5001(a)/56.5005 was cited 1 time in two years at mine 2300504 (1 to theoperator, Oto a contractor). The Operations Manager was exposed to ashift-weighted average of 0.5 mg/m3 of respirable silica-bearing dust on03/21/2023. This exceeded the Threshold Limit Value (TLV) of 0.15 mg/m3 timesthe error factor (1.20 for respirable free silica dust sampling and analysis).A Respiratory Protection Program (RPP) meeting the requirements of ANSIZ88.2-1969 was not in place. The operator's RPP was deficient in that; the mineoperator had not conducted their own sampling as required, there was no-oneadministering the program (the program states that it will be administered bythe Safety Manager, a position that is currently open at the mine), the minerhad not been medically evaluated to be able to wear a respirator, therespirators listed in the plan were not being fit tested each time they weredonned, and the miner had not been fit tested. The abatement date has been setto allow the operator time to: correct their RPP to be compliant with ANSIZ88.2-1969, have the miner medically evaluated to be able to wear a respirator,and to provide approved, fit tested, respiratory protection for the affectedminer (Any particulate respirator equipped with an N95, R95, P95, N99, R99,P99, Nl00, Rl00, or Pl00 filter). The mine operator must establish engineeringcontrols to reduce the silica-bearing dust exposure to less than the TLV.

 

Petition at 87.

 

The issuinginspector evaluated the gravity, and negligence the same as he had for CitationNo. 9539786, similarly marking alleged violation as “significant andsubstantial.”

 

**Last thereis Citation No. 9539788**, which is of a piece with the two citationsidentified above.  Recall that the operator requested that standard’s inclusionin its motion. Citing 30 C.F.R. §56.5002, as pertinent here, that standardrequires dust surveys to be conducted as frequently as necessary to determinethe adequacy of control measures.  That citation, at least as alleged on itsface, made out a violation as it asserted no dust surveys were being conducted:

 

The mineoperator was not conducting dust surveys in the mill building to ensure theprovided dust collection and ventilation controls were adequate to preventoverexposure to silica-bearing dust. Elevated dust levels above the TLV werepresent in the mill building on 03/21/2023 (citations#: 9539786 and 9539787).The initial abatement date has been set to allow the mine operator time tosurvey their current dust collection and ventilation systems and to makearrangements for dust sampling and analysis.

 

Petition at89.

 

            All three citationswere issued on the same day, April 30, 2023, and within an hour of one anotherand they all involved the mill building.  All provided the same abatement date,April 7, 2023.  

 

**Respondent’sMotion**

** **

            Respondent’s Motionstates that, as a consequence of the above-described citations, and moreparticularly as a result of the issuance on April 12, 2023, of section 104(b)orders, Order Nos. 9539789 and 9539790,[2]issued in the wake of and associated with Citation Nos. 9539786 and 9539787 forthe alleged lack of any effort to correct the defects identified in thosecitations, the mine is unable to continue to operate.  That the mine cannot operatein any meaningful production capacity is not contested by either side; theorders have effectively shut the operation down.  Conference Call at 4.  

 

            Both Orders weresubsequently modified 12 times. Subsequent Action Nos. 9539789-02 through9539789-13 and Subsequent Action Nos. 9539790-02 through 9539790-13.  Thatthese modifications occurred are also uncontested.  

 

            Respondent assertsthat it “provided miners with medical evaluations and respiratory protection,performed troubleshooting on the Mill Building, performed remedial work andimplemented controls, which MSHA recognized,” citing Respondent’s Exhibit C at2-4; and Exhibit D at 2-4.  Respondent also states that “[o]n April 27, 2023,MSHA modified both Order Nos. 9539789 and 9539790 to allow production to resumeby issuing Subsequent Action Nos. 9539789-05 and 9539790-05,” citing Exhibit Cat 5; Exhibit D at 5.  Motion at 5. 

 

            Respondent thenstates that “[o]n October 11, 2023, MSHA reversed course and issued SubsequentAction Nos. 9539789-08, -09 and -10 and 9539790-08, -09 and -10, which modifiedOrder Nos. 9539789 and 9539790, respectively, and prohibited any productionactivities in the Mill Building. ...[and that]  [a]s a result, since that time,production at American Tripoli has ceased.”  *Id*., citing Exhibit C at8-10; Exhibit D at 8-10. 

 

            It is Respondent’scontention that the civil penalty docket is the appropriate venue forchallenging Order Nos. 9539789 and 9539790 and the subsequent actions for eachand that MSHA’s “subsequent action modifications prohibiting productionactivities, are invalid, unreasonable and contrary to law and fact.” *Id*.

  

            Respondent reportsthat the parties have attempted to negotiate a plan by which American Tripoliwould be able to operate pending termination of Citation Nos. 9539786 and9539787 (and, correlatively, Order Nos. 9539789 and 9539790) but suchnegotiations have not yielded a resolution.  Id. at 6. 

 

            In sum, Respondentdeclares that “expedition of the proceeding relative to Citation Nos. 9539786and 9539787 and Order Nos. 9539789 and 9539790 is necessary.  Given thatAmerican Tripoli is presently prohibited from engaging in production, if anexpedited hearing is not granted, American Tripoli will be irreparably harmed,”and therefore it requests a hearing on those matters. *Id*. at 6.

 

**The Secretary’s Oppositionto the Motion to Expedite**

** **

            The Secretary’sOpposition to the Motion to Expedite (“Opposition”) raises three contentions:the Respondent’s window of time to challenge the 104(b) orders expired; itwould be premature to have a hearing on Citation Nos. 9539786 and 9539787because necessary discovery, including a pending motion to compel, is ongoing;and it would be wasteful to have a hearing on only some of the citations/ordersin this docket.  Opposition at 1. 

 

            All of this cameabout in the connection with the Secretary’s issuance of the two citations referencedabove (i.e. Citation Nos. 9539786 and 9539787) and the orders which followed inthe wake of those citations.  The citations and orders emanate from theallegations that the Respondent failed to have a compliant respiratoryprotection program.  The Court agrees with the Respondent that Citation No.9539788 should be included in this motion to expedite, as it is closely relatedto those other two citations.  Certainly, the allegations and the orderspertain to very serious health matters, involving respirable silica dust.[3] 

 

            As the Secretarynotes, the two citations assert that the Respondent’s operations manager wasexposed to dust levels three times the threshold limit value (“TLV”) and thatmill associates were exposed to dust levels ten times the TLV.  Opposition at1-2.  The 104(b) Orders were issued about two weeks after the citations. Thosetwo Orders asserted that 

 

[n]o apparenteffort [had  been] made by the operator to correct their Respiratory ProtectionProgram (RPP) to be compliant with ANSI Z88.2-1969, have all affected minersmedically evaluated to be able to wear a respirator, to provide approved, fittested, respiratory protection for all  affected miners,  or  to  establishengineering controls to reduce the silica-bearing dust exposure.

 

Order No. 9539789. (Order No.9539790 uses the same language and therefore not repeated.)  

 

            The Orders *didnot* remain static.  Both were modified fourteen (14) times.[4] The Secretary states that it afforded the Respondent “nearly six months” to correctthe dust exceedance issues but that the Respondent failed to act in “good faithor take reasonable steps to repair its dust collection system during this timeperiod.” *Id*. at 2.  By the Secretary’s account, it was then “left withno choice but to issue a modification to the 104(b) Orders that prohibited alldust producing activity in the mill building until engineering controls wereestablished and the miners’ respirable silica dust exposure had been reduced tobelow the threshold limit value.” *Id.*  

 

            The Secretaryasserts that the Respondent’s real objective is to have the orders modified sothat it can resume its mining operation.  As mentioned, the Secretary contendsthe Respondent failed to challenge the orders within the time allowed.  TheSecretary maintains that it has been  more than reasonable in this matter as itmade several modifications to the orders in April and July 2023 but that itspatience ran out because the Respondent 

 

failed to takeany measurable steps to control respirable dust and install engineeringcontrols in an attempt to terminate the citations ... [and] “also failed toconsistently require miners to use respiratory protection exposing them tounacceptable levels of silica dust and serious health risks.

 

*Id*. at4.

 

            That assertedinaction left MSHA with no choice but to 

 

prohibit ‘alldust producing activity in and around the Mill Building until all feasibleengineering controls have been installed or repaired and personal respirabledust sampling by MSHA has shown that the engineering controls were effectiveand miners’ respirator silica dust exposure is below the [threshold valuelimit].’  

 

*Id.*(bracket inoriginal).

* *

*           *The Courtnotes the serious contention made by the Secretary that 

 

[t]o date, *overseven months after the 104(b) Orders were first issued*, no consultant orexpert has observed the mill running and therefore has not had the opportunityto fully address what engineering controls are necessary to correct the silicadust exposure.

 

*Id.*(emphasis inOpposition).

 

            As noted, theSecretary contends that the Respondent failed to timely contest the 104(b)orders in this matter and that failing to timely contest is a jurisdictionalbar to review.  The Secretary also asserts that an expedited hearing on thecitations should wait until discovery is completed.  While the Secretaryasserts that the Respondent’s reliance on the Commission’s decision in *MapleCreek*, 29 FMSHRC 583 (July 2007) (“*Maple*Creek”) is inapplicable tothis matter, the Secretary’s fallback position is that if the case does supportthe proposition that the Commission has jurisdiction over orders not contested,then the Commission’s decision was wrongly decided and the Commission mustdefer to the Secretary’s view. *Id.* at 8.  

 

**Analysis**

** **

**The challenge to jurisdictionover the 104(b) withdrawal orders**

** **

**           **The Courtdoes not agree with the Secretary’s position that the Respondent’s failure tochallenge the 104(b) withdrawal orders within 30 days of their initialissuance, April 12, 2023, removes Commission jurisdiction over those orders. The Court relies upon the language of Sections 104(b) and 105(d) and thereasoning of the Commission in its *Maple Creek*decision. Once the Secretary launches actions under those provisions, the matters arethen in the Commission’s hands.  As noted in *Maple Creek*, 

 

The Commission is clearly charged with administering theprovisions of sections 105(a) and 105(d) of the Mine Act, which address thechallenge of enforcement actions of the Secretary, the initiation of casesbefore the Commission, and the Commission’s administration of hearingsconcerning the validity of those enforcement actions. *See**Emerald Mines Co. v. FMSHRC*, 863 F.2d 51, 53, 56-59 (D.C.Cir. 1988) (where language of Mine Act was indecisive, courtdeferred to Commission’s interpretation of section 104(d) regarding theissuance of withdrawal orders). As the Supreme Court stated in *Thunder Basin Coal Co. v. Reich*, 510 U.S. 200, 214 (1994),the Commission was established as an independent review body to “develop auniform and comprehensive interpretation” of the Mine Act (citing Hearing onthe Nomination of Members of the Federal Mine Safetyand Health Review Comm’n before the Senate Comm. on Human Res., 95th Cong. 1(1978)). Moreover, the question of how the procedures set forth in sections105(a) and 105(d) are to mesh and how the Commission will conduct hearingsinvolves a major policy component, which the Commission is uniquely qualifiedto establish.

 

Id. at *6.

 

            Accordingly,per that decision, “a section 104(b) withdrawal order may be contested undersection 105(a) in a civil penalty proceeding regardless of whether it wasseparately contested under section 105(d).” *Id*.

 

**The Secretary’s claim that it would be premature to have ahearing because necessary discovery must occur first.**

** **

**           **The Secretary has filed a Motion to Compel Discovery. Although the Court’s decision on the discovery motion is addressed in aseparate issuance, a few remarks are in order.  This is not a typical case. The orders issued by MSHA have shut down production at the mine and that statusis not disputed.  Given the seriousness of the action taken by virtue of theMSHA orders, a production shut down of the mine product, it is the Court’s viewthat the Secretary should be prepared to defend both the citations and theensuing orders from the time they were issued.  The assertion that theSecretary needs to first conduct “necessary discovery” is questionable, atleast under circumstances when a mine is shut down. 

 

            Further,even presently, the Secretary’s ability to have the citations and the ordersupheld should not be difficult, assuming that it can establish the factsalleged in the citations and that those facts make out violations of the citedstandards and then establish that, upon a follow-up inspection, the violationsdescribed in such citations have not been totally abated within the period oftime allowed, and that the bases establishing that the period of time for theabatement should not be further extended, all by a preponderance of theevidence, the withdrawal orders would be upheld. 

 

            Thecontentions in the citations and the orders emanating from those citations, ifestablished, represent serious health violations.  That said, shutting down amine from production is a serious action in its own right.  

 

            TheCourt has the authority to expedite proceedings before it.  29 C.F.R. §2700.52.  The decision to expedite is left to the Court’s discretion.  

 

            Accordingly,based upon the reasons articulated above, the Court has determined thatexpedition of these proceedings is appropriate in this instance. To that end,the Court will be promptly arranging a conference to establish a date for thecommencement of a hearing for these matters. 

 

**TheSecretary’s claim that it would be wasteful to have a hearing on onlysome of the citations/orders in this docket. **

 

            This claim is theweakest of the bases sought by the Secretary to avoid an expedited hearing andmay be disposed of easily.  While, ideally, hearing all citations within agiven docket is preferred, the reality here is that the citations and orderssought for expedited review have a profound effect on the mine’s operation bypreventing production.  The need for expedited review of those limited butprofound matters clearly outweighs postponement of the hearing.  

 

**Conclusion**

** **

**           **Accordingly,based on the foregoing discussion, the Respondent’s Motion to Expedite is **GRANTED**. As noted, upon issuance of the Court’s Order on the Motion to Compel Discovery,a conference call will be scheduled to set a date and location for theexpedited hearing.

 

**SO ORDERED.**

 

 

 

 

                                                                        /s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

Distribution:

 

Laura M. O’Reilly, Esq., Elaine M. Smith, Esq., Office of theSolicitor, U.S. Department of Labor, 2300 Main Street, Suite 10100, KansasCity, MO 64108 (oreilly.laura.m@dol.gov)

 

Kristin R.B. White, Fisher & Phillips, LLP, 1125 17th Street,Suite 2400, Denver, CO 80202 (kwhite@fisherphillips.com) 

 

Arthur M. Wolfson, Fisher & Phillips, LLP, Six PPG Place, Suite830, Pittsburgh, PA 15222 (awolfson@fisherphillips.com) 

 

Russell Tidaback, AmericanTripoli, 2701East Grauwyler Rd., Bldg. 1, Dept. 1008, Irving, TX 75061, (rtidaback@deedyco.com)

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[1] Thefull text of these provisions appears here: 30 C.F.R. § 56.5001(a), titled,“Exposure limits for airborne contaminants,” provides “Exceptas permitted by § 56.5005 - (a) Except as provided in paragraph(b) of this section, the exposure to airborne contaminants shallnot exceed, on the basis of a time weighted average, the threshold limit valuesadopted by the American Conference of Governmental Industrial Hygienists, asset forth and explained in the 1973 edition of the Conference's publication,entitled “TLV's Threshold Limit Values for Chemical Substances in Workroom AirAdopted by ACGIH for 1973,” pages 1 through 54, which are hereby incorporatedby reference and made a part hereof. This publication may be obtained from theAmerican Conference of Governmental industrial Hygienists by writing to 1330 KemperMeadow Drive, Attn: Customer Service, Cincinnati, OH 45240; *http://www.acgih.org”*, or may be examined in any Metaland Nonmetal Mine Safety and Health District Office of the Mine Safety andHealth Administration. Excursions above the listed thresholds shall not be of agreater magnitude than is characterized as permissible bythe Conference.” 

 

30 C.F.R. § 56.5005, titled “Control ofexposure to airborne contaminants,” provides “Control of employee exposure toharmful airborne contaminants shall be, insofar as feasible, by prevention ofcontamination, removal by exhaust ventilation, or by dilution withuncontaminated air. However, where accepted, engineering control measures havenot been developed or when necessary by the nature of work involved (forexample, while establishing controls or occasional entry into hazardousatmospheres to perform maintenance or investigation), employees may work forreasonable periods of time in concentrations of airborne contaminants exceedingpermissible levels if they are protected by appropriate respiratory protectiveequipment. Whenever respiratory protective equipment is used a program forselection, maintenance, training, fitting, supervision, cleaning, and use shallmeet the following minimum requirements:

 

(a) Respirators approved by NIOSH under 42CFR part 84 which are applicable and suitable for the purpose intended shall befurnished and miners shall use the protective equipment in accordance withtraining and instruction.

 

(b) A respirator program consistent withthe requirements of ANSI Z88.2–1969, published by the American NationalStandards Institute and entitled “American National Standards Practices forRespiratory Protection ANSI Z88.2–1969,” approved August 11, 1969, which ishereby incorporated by reference and made a part hereof. This publication maybe obtained from the American National Standards Institute, Inc., 25 W. 43rdStreet, 4th Floor, New York, NY 10036; http://www.ansi.org”, or may be examinedin any Metal and Nonmetal Mine Safety and Health District Office of the MineSafety and Health Administration.

 

(c) When respiratory protection is used inatmospheres immediately harmful to life, the presence of at least one otherperson with backup equipment and rescue capability shall be required in theevent of failure of the respiratory equipment.”

 

[2] The texts of the104(b) orders are reflected here: Order No. 9539789 stated in relevant part:   “Noapparent effort was made by the operator to; correct their RespiratoryProtection Program (RPP) to be compliant with ANSI Z88.2-1969, have allaffected miners medically evaluated to be able to wear a respirator, to provideapproved, fit tested, respiratory protection for all affected miners, or toestablish engineering controls to reduce the silica-bearing dust exposure.” Order No. 9539790, essentially declared the same thing. Motion at 3-4.

# [3] Itis noted that silica dust is particularly harmful. “Silica dust is 20 timesmore toxic than coal dust and causes severe forms of black lung disease evenafter a few years of exposure.” LeahWillingham and Matthew Daly, *Afterdecades of delays and broken promises, coal miners hail rule to slow rise ofblack lung,*AP, Aug. 5, 2023, 

https://apnews.com/article/black-lung-silica-dust-coal-mining-west-virginia-be722098fcf2a20b16bd73ca12c06c7e.

 

On July 13, 2023, MSHA issued aproposed rule to reduce the permissible exposure limit to respirablecrystalline silica.  https://www.federalregister.gov/documents/2023/07/13/2023-14199/lowering-miners-exposure-to-respirable-crystalline-silica-and-improving-respiratory-protection

 

[4]*See, forexample,*Order No. 9539790-14, issued 12/05/2023.