1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

December 18, 2023

 ORDER ON MOTION TO EXPEDITE

Before the Court is Respondent, American Tripoli’s “Motion to expedite proceedings with 

respect to certain enforcement actions.” (“Motion”). Pursuant to 29 C.F.R. §§ 2700.10 and 

2700.52, American Tripoli (“Tripoli”) “specifically requests that a hearing on Citation Nos. 

9539786 and 9539787 and Order Nos. 9539789 and 9539790 be heard on an expedited basis,” and 

it adds that because of “its factual similarity in allegations, Citation No. 9539788 should also be 

included in the expedited proceeding.” Motion at 1. Thereafter, the Secretary filed its Opposition 

to the Motion. (“Opposition”). The Court held a conference call on December 7, 2023, to better 

understand the controversy. (“Conference Call”)

For the reasons which follow, the Court GRANTS the Motion for an EXPEDITED 

PROCEEDING for the purpose of a hearing on the citations and orders identified above. The 

Court 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 will be forthcoming. Because the Court 

is issuing its Order for Docket Reallocation today, that discovery issue will be limited to Citation 

Nos. 9539786, 9539787 and 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 the Secretary’s Motion 

to Compel Discovery, the Court will be promptly arranging a conference call to establish a date

for the commencement of a hearing regarding these matters. 

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

AMERICAN TRIPOLI, 

Respondent

CIVIL PENALTY PROCEEDING

Docket No. CENT 2023-0196

A.C. No. 23-00504-577169

Mine: MOSenecaMfr LLC dba American 

tr
2

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 airborne contaminants ... shall not exceed the TLV's established by the American 

Conference of Governmental Industrial Hygienists.” Aluminum Company of America, 15 

1 The full text of these provisions appears here: 30 C.F.R. § 56.5001(a), titled, “Exposure limits 

for airborne contaminants,” provides “Except as permitted by § 56.5005 - (a) Except as provided 

in paragraph (b) of this section, the exposure to airborne contaminants shall not exceed, on the 

basis of a time weighted average, the threshold limit values adopted by the American Conference 

of Governmental Industrial Hygienists, as set forth and explained in the 1973 edition of the 

Conference's publication, entitled “TLV's Threshold Limit Values for Chemical Substances in 

Workroom Air Adopted by ACGIH for 1973,” pages 1 through 54, which are hereby incorporated 

by reference and made a part hereof. This publication may be obtained from the American 

Conference of Governmental industrial Hygienists by writing to 1330 Kemper Meadow Drive, 

Attn: Customer Service, Cincinnati, OH 45240; http://www.acgih.org”, or may be examined in 

any Metal and Nonmetal Mine Safety and Health District Office of the Mine Safety and Health 

Administration. Excursions above the listed thresholds shall not be of a greater magnitude than is 

characterized as permissible by the Conference.” 

30 C.F.R. § 56.5005, titled “Control of exposure to airborne contaminants,” provides “Control of 

employee exposure to harmful airborne contaminants shall be, insofar as feasible, by prevention 

of contamination, removal by exhaust ventilation, or by dilution with uncontaminated air. 

However, where accepted, engineering control measures have not been developed or when 

necessary by the nature of work involved (for example, while establishing controls or occasional 

entry into hazardous atmospheres to perform maintenance or investigation), employees may work 

for reasonable periods of time in concentrations of airborne contaminants exceeding permissible 

levels if they are protected by appropriate respiratory protective equipment. Whenever respiratory 

protective equipment is used a program for selection, maintenance, training, fitting, supervision, 

cleaning, and use shall meet the following minimum requirements:

(a) Respirators approved by NIOSH under 42 CFR part 84 which are applicable and suitable for 

the purpose intended shall be furnished and miners shall use the protective equipment in 

accordance with training and instruction.

(b) A respirator program consistent with the requirements of ANSI Z88.2–1969, published by the 

American National Standards Institute and entitled “American National Standards Practices for 

Respiratory Protection ANSI Z88.2–1969,” approved August 11, 1969, which is hereby 

incorporated by reference and made a part hereof. This publication may be obtained from the 

American National Standards Institute, Inc., 25 W. 43rd Street, 4th Floor, New York, NY 10036; 

http://www.ansi.org”, or may be examined in any Metal and Nonmetal Mine Safety and Health 

District Office of the Mine Safety and Health Administration.

(c) When respiratory protection is used in atmospheres immediately harmful to life, the presence 

of at least one other person with backup equipment and rescue capability shall be required in the 

event of failure of the respiratory equipment.”
3

FMSHRC 1821, n.6. The latter standard requires the use of respirators “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 include Citation 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 to 

determine the adequacy of control measures.” 

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

stated: 

The Mill Associates were exposed to a shift-weighted averages of 1.64 mg/m3, 

[‘mg/m3’ stands for one-thousandth of a gram per cubic meter of air] 1.33 mg/m3, 

and 1.77 mg/m3 respirable silica-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 silica dust sampling and analysis). A Respiratory Protection 

Program (RPP) meeting the requirements of ANSI Z88.2 - 1969 was not in place. 

The operator's RPP was deficient in that; the mine operator had not conducted their 

own sampling as required, there was no-one administering the program 

(the program states that it will be administered by the Safety Manager, a position 

that is currently open at the mine), the miners have not been medically evaluated to 

be able to wear a respirator, the respirators listed in the plan were not approved at 

the miner's exposure level, and the miners had not been fit tested. The abatement 

date has been set to allow the operator time to: correct their RPP to be compliant 

with ANSI Z88.2-1969, have all affected miners medically evaluated to be able to 

wear a respirator, and to provide approved, fit tested, respiratory protection for all 

affected miners (Any powered air-purifying respirator with a high-efficiency 

particulate filter (PAPR), or Any supplied-air respirator operated in continuousflow mode). The mine operator must establish engineering controls to reduce the 

silica-bearing dust exposure to less than the TLV.

Petition at 85.

The 104(a) citation listed 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. It alleged 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 the alleged violation contained in that section 104(a) citation stated: 

Standard 56.5001(a)/56.5005 was cited 1 time in two years at mine 2300504 (1 to 

the operator, Oto a contractor). The Operations Manager was exposed to a shiftweighted average of 0.5 mg/m3 of respirable silica-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 silica dust sampling and analysis). A Respiratory 

Protection Program (RPP) meeting the requirements of ANSI Z88.2-1969 was not 

in place. The operator's RPP was deficient in that; the mine operator had not 
4

conducted their own sampling as required, there was no-one administering the 

program (the program states that it will be administered by the Safety Manager, a 

position that is currently open at the mine), the miner had not been medically 

evaluated to be able to wear a respirator, the respirators listed in the plan were not 

being fit tested each time they were donned, and the miner had not been fit tested. 

The abatement date has been set to allow the operator time to: correct their RPP to 

be compliant with ANSI Z88.2-1969, have the miner medically evaluated to be able 

to wear a respirator, and to provide approved, fit tested, respiratory protection for 

the affected miner (Any particulate respirator equipped with an N95, R95, P95, 

N99, R99, P99, Nl00, Rl00, or Pl00 filter). The mine operator must establish 

engineering controls to reduce the silica-bearing dust exposure to less than the TLV.

Petition at 87.

The issuing inspector evaluated the gravity, and negligence the same as he had for Citation 

No. 9539786, similarly marking alleged violation as “significant and substantial.”

Last there is Citation No. 9539788, which is of a piece with the two citations identified 

above. Recall that the operator requested that standard’s inclusion in its motion. Citing 30 C.F.R. 

§56.5002, as pertinent here, that standard requires dust surveys to be conducted as frequently as 

necessary to determine the adequacy of control measures. That citation, at least as alleged on its 

face, made out a violation as it asserted no dust surveys were being conducted:

The mine operator was not conducting dust surveys in the mill building to ensure 

the provided dust collection and ventilation controls were adequate to prevent 

overexposure to silica-bearing dust. Elevated dust levels above the TLV were 

present 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 to survey their 

current dust collection and ventilation systems and to make arrangements for dust 

sampling and analysis.

Petition at 89.

All three citations were issued on the same day, April 30, 2023, and within an hour of one 

another and they all involved the mill building. All provided the same abatement date, April 7, 

2023. 

Respondent’s Motion

Respondent’s Motion states that, as a consequence of the above-described citations, and 

more particularly 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 

2 The texts of the 104(b) orders are reflected here: Order No. 9539789 stated in relevant part: 

“No apparent effort was made by the operator to; correct their Respiratory Protection Program 

(RPP) to be compliant with ANSI Z88.2-1969, have all affected miners medically evaluated to 

be able to wear a respirator, to provide approved, fit tested, respiratory protection for all affected 
5

9539787 for the alleged lack of any effort to correct the defects identified in those citations, the 

mine is unable to continue to operate. That the mine cannot operate in any meaningful production 

capacity is not contested by either side; the orders have effectively shut the operation down. 

Conference Call at 4. 

Both Orders were subsequently modified 12 times. Subsequent Action Nos. 9539789-02 

through 9539789-13 and Subsequent Action Nos. 9539790-02 through 9539790-13. That these 

modifications occurred are also uncontested. 

Respondent asserts that it “provided miners with medical evaluations and respiratory 

protection, performed troubleshooting on the Mill Building, performed remedial work and 

implemented controls, which MSHA recognized,” citing Respondent’s Exhibit C at 2-4; 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 resume by issuing Subsequent Action Nos. 

9539789-05 and 9539790-05,” citing Exhibit C at 5; Exhibit D at 5. Motion at 5. 

Respondent then states that “[o]n October 11, 2023, MSHA reversed course and issued 

Subsequent Action Nos. 9539789-08, -09 and -10 and 9539790-08, -09 and -10, which modified 

Order Nos. 9539789 and 9539790, respectively, and prohibited any production activities in the 

Mill Building. ...[and that] [a]s a result, since that time, production at American Tripoli has 

ceased.” Id., citing Exhibit C at 8-10; Exhibit D at 8-10. 

It is Respondent’s contention that the civil penalty docket is the appropriate venue for 

challenging Order Nos. 9539789 and 9539790 and the subsequent actions for each and that 

MSHA’s “subsequent action modifications prohibiting production activities, are invalid, 

unreasonable and contrary to law and fact.” Id.

 

Respondent reports that the parties have attempted to negotiate a plan by which American 

Tripoli would be able to operate pending termination of Citation Nos. 9539786 and 9539787 (and, 

correlatively, Order Nos. 9539789 and 9539790) but such negotiations have not yielded a 

resolution. Id. at 6. 

In sum, Respondent declares that “expedition of the proceeding relative to Citation Nos. 

9539786 and 9539787 and Order Nos. 9539789 and 9539790 is necessary. Given that American 

Tripoli is presently prohibited from engaging in production, if an expedited 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 Opposition to the Motion to Expedite

The Secretary’s Opposition to the Motion to Expedite (“Opposition”) raises three 

contentions: the Respondent’s window of time to challenge the 104(b) orders expired; it would be 

premature to have a hearing on Citation Nos. 9539786 and 9539787 because 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/orders in this docket. Opposition at 1. 

miners, or to establish engineering controls to reduce the silica-bearing dust exposure.” Order 

No. 9539790, essentially declared the same thing. Motion at 3-4.
6

All of this came about in the connection with the Secretary’s issuance of the two citations 

referenced above (i.e. Citation Nos. 9539786 and 9539787) and the orders which followed in the 

wake of those citations. The citations and orders emanate from the allegations that the Respondent 

failed to have a compliant respiratory protection program. The Court agrees with the Respondent 

that Citation No. 9539788 should be included in this motion to expedite, as it is closely related to 

those other two citations. Certainly, the allegations and the orders pertain to very serious health

matters, involving respirable silica dust.3

 

As the Secretary notes, the two citations assert that the Respondent’s operations manager 

was exposed to dust levels three times the threshold limit value (“TLV”) and that mill associates 

were exposed to dust levels ten times the TLV. Opposition at 1-2. The 104(b) Orders were issued 

about two weeks after the citations. Those two Orders asserted that 

[n]o apparent effort [had been] made by the operator to correct their Respiratory 

Protection Program (RPP) to be compliant with ANSI Z88.2-1969, have all affected 

miners medically evaluated to be able to wear a respirator, to provide approved, fit 

tested, respiratory protection for all affected miners, or to establish engineering 

controls to reduce the silica-bearing dust exposure.

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

The Orders did not remain static. Both were modified fourteen (14) times.4 The Secretary 

states that it afforded the Respondent “nearly six months” to correct the dust exceedance issues 

but that the Respondent failed to act in “good faith or take reasonable steps to repair its dust 

collection system during this time period.” Id. at 2. By the Secretary’s account, it was then “left 

with no choice but to issue a modification to the 104(b) Orders that prohibited all dust producing 

activity in the mill building until engineering controls were established and the miners’ respirable 

silica dust exposure had been reduced to below the threshold limit value.” Id. 

The Secretary asserts that the Respondent’s real objective is to have the orders modified so 

that it can resume its mining operation. As mentioned, the Secretary contends the Respondent 

failed to challenge the orders within the time allowed. The Secretary maintains that it has been 

3 It is noted that silica dust is particularly harmful. “Silica dust is 20 times more toxic than coal 

dust and causes severe forms of black lung disease even after a few years of exposure.” Leah 

Willingham and Matthew Daly, After decades of delays and broken promises, coal miners hail rule to 

slow rise of black lung, AP,Aug. 5, 2023, 

https://apnews.com/article/black-lung-silica-dust-coal-mining-west-virginiabe722098fcf2a20b16bd73ca12c06c7e.

On July 13, 2023, MSHA issued a proposed rule to reduce the permissible exposure limit to 

respirable crystalline silica. https://www.federalregister.gov/documents/2023/07/13/2023-

14199/lowering-miners-exposure-to-respirable-crystalline-silica-and-improving-respiratoryprotection

4 See, for example, Order No. 9539790-14, issued 12/05/2023.
7

more than reasonable in this matter as it made several modifications to the orders in April and July 

2023 but that its patience ran out because the Respondent 

failed to take any measurable steps to control respirable dust and install engineering 

controls in an attempt to terminate the citations ... [and] “also failed to consistently 

require miners to use respiratory protection exposing them to unacceptable levels 

of silica dust and serious health risks.

Id. at 4.

That asserted inaction left MSHA with no choice but to 

prohibit ‘all dust producing activity in and around the Mill Building until all 

feasible engineering controls have been installed or repaired and personal respirable 

dust sampling by MSHA has shown that the engineering controls were effective 

and miners’ respirator silica dust exposure is below the [threshold value limit].’ 

Id. (bracket in original).

The Court notes the serious contention made by the Secretary that 

[t]o date, over seven months after the 104(b) Orders were first issued, no consultant 

or expert has observed the mill running and therefore has not had the opportunity 

to fully address what engineering controls are necessary to correct the silica dust 

exposure.

Id. (emphasis in Opposition).

As noted, the Secretary contends that the Respondent failed to timely contest the 104(b) 

orders in this matter and that failing to timely contest is a jurisdictional bar to review. The 

Secretary also asserts that an expedited hearing on the citations should wait until discovery is 

completed. While the Secretary asserts that the Respondent’s reliance on the Commission’s 

decision in Maple Creek, 29 FMSHRC 583 (July 2007) (“Maple Creek”) is inapplicable to this 

matter, the Secretary’s fallback position is that if the case does support the proposition that the 

Commission has jurisdiction over orders not contested, then the Commission’s decision was 

wrongly decided and the Commission must defer to the Secretary’s view. Id. at 8. 

Analysis

The challenge to jurisdiction over the 104(b) withdrawal orders

The Court does not agree with the Secretary’s position that the Respondent’s failure to 

challenge the 104(b) withdrawal orders within 30 days of their initial issuance, April 12, 2023, 

removes Commission jurisdiction over those orders. The Court relies upon the language of 

Sections 104(b) and 105(d) and the reasoning of the Commission in its Maple Creek decision. 

Once the Secretary launches actions under those provisions, the matters are then in the 

Commission’s hands. As noted in Maple Creek, 
8

The Commission is clearly charged with administering the provisions of sections 

105(a) and 105(d) of the Mine Act, which address the challenge of enforcement 

actions of the Secretary, the initiation of cases before the Commission, and the 

Commission’s administration of hearings concerning 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, court deferred to 

Commission’s interpretation of section 104(d) regarding the issuance 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 a uniform and comprehensive interpretation” of the Mine Act (citing 

Hearing on the Nomination of Members of the Federal Mine Safety and 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 sections 105(a) and 

105(d) are to mesh and how the Commission will conduct hearings involves a major 

policy component, which the Commission is uniquely qualified to establish.

Id. at *6.

Accordingly, per that decision, “a section 104(b) withdrawal order may be contested under 

section 105(a) in a civil penalty proceeding regardless of whether it was separately contested under 

section 105(d).” Id.

The Secretary’s claim that it would be premature to have a hearing 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 a separate 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 status 

is not disputed. Given the seriousness of the action taken by virtue of the MSHA orders, a 

production shut down of the mine product, it is the Court’s view that the Secretary should be 

prepared to defend both the citations and the ensuing orders from the time they were issued. The 

assertion that the Secretary needs to first conduct “necessary discovery” is questionable, at least 

under circumstances when a mine is shut down. 

Further, even presently, the Secretary’s ability to have the citations and the orders upheld 

should not be difficult, assuming that it can establish the facts alleged in the citations and that those 

facts make out violations of the cited standards and then establish that, upon a follow-up 

inspection, the violations described in such citations have not been totally abated within the period 

of time allowed, and that the bases establishing that the period of time for the abatement should 

not be further extended, all by a preponderance of the evidence, the withdrawal orders would be 

upheld. 

The contentions in the citations and the orders emanating from those citations, if 

established, represent serious health violations. That said, shutting down a mine from production 

is a serious action in its own right. 
9

The Court 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 that 

expedition of these proceedings is appropriate in this instance. To that end, the Court will be 

promptly arranging a conference to establish a date for the commencement of a hearing for these 

matters. 

The Secretary’s claim that it would be wasteful to have a hearing on only some of the 

citations/orders in this docket. 

This claim is the weakest of the bases sought by the Secretary to avoid an expedited hearing 

and may be disposed of easily. While, ideally, hearing all citations within a given docket is 

preferred, the reality here is that the citations and orders sought for expedited review have a 

profound effect on the mine’s operation by preventing production. The need for expedited review 

of those limited but profound 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 the expedited hearing.

SO ORDERED. 

 

 William B. Moran 

 Administrative Law Judge

Distribution:

Laura M. O’Reilly, Esq., Elaine M. Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2300 Main Street, Suite 10100, Kansas City, 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, Suite 830, Pittsburgh, PA 15222 

(awolfson@fisherphillips.com) 

Russell Tidaback, American Tripoli, 2701 East Grauwyler Rd., Bldg. 1, Dept. 1008, Irving, TX 

75061, (rtidaback@deedyco.com)