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[DOCID: f:wv96170.wais]
HOBET MINING, INC.
August 31, 1998
WEVA 96-170
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 31, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 96-170
Petitioner : A. C. No. 46-04670-03629
v. :
: Hobet No. 21 Surface Mine
HOBET MINING, INC., :
Respondent : Docket No. WEVA 96-185
: A. C. No. 46-02249-03607
:
: Hobet No. 7 Surface Mine
:
: Docket No. WEVA 96-178
: A. C. No. 46-06750-03576
:
: Docket No. WEVA 97-33
: A. C. No. 46-06750-03581
:
: Peats Branch No. 3 Mine
DECISION
Appearances: Caryl Casden, Esq., and Gretchen McMullen,
Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, on behalf of the
Petitioner; David J. Hardy, Esq., and John T.
Bonham, II, Esq., Jackson & Kelly, Charleston,
West Virginia, on behalf of the Respondent.
Before: Judge Melick
These consolidated cases are before me upon the petitions
for civil penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine and Safety Health of 1977,
30 U.S.C. � 801, et seq., the "Act," charging Hobet Mining, Inc.
(Hobet) with eight violations of mandatory standards and seeking
civil penalties for those violations. The general issue before
me is whether Hobet committed the violations as alleged and, if
so, what is the appropriate civil penalty to be assessed
considering the criteria under Section 110(i) of the Act.
Additional specific issues are addressed as noted.
At hearing, the Secretary vacated Citation No. 7152240
(Docket No. WEVA 96-170) and moved to settle Citation Nos.
4629642 (Docket No. WEVA 96-185) and 7152318 (Docket No. WEVA
96-170). The Secretary agreed to modify the citations and reduce
the total penalty to $720.00. The proffered settlement is
acceptable under the criteria set forth in Section 110(i) of the
Act and an order directing payment will be incorporated in this
decision. The remaining five citations allege violations of the
standard at 30 C.F.R. � 72.620. Hearings in these proceedings
were bifurcated. The initial hearings were limited to fact
witnesses. The experts for each party, utilizing transcripts of
the testimony of these fact witnesses, then prepared written
direct testimony, and the second portion of the bifurcated
hearings followed with examination of those expert witnesses.
The mandatory standard at issue in these cases, 30 C.F.R. �
72.620, provides as follows:
Holes shall be collared and drilled wet, or other
effective dust control measures shall be used, when drilling
non-water-soluble material. Effective dust control measures
shall be used when drilling water-soluble material.
Docket No. WEVA 96-170
Citation No. 7152439
This citation alleges a "significant and substantial"
violation of 30 C.F.R. � 72.620 and, in relevant part, charges
as follows:
The Marion rock drill co. no. 109622 located at the
drill bench near the Wabco parking area is observed during
drilling operations, with excessive amounts of visible
suspended drill dust present around the operators cab, drill
mast and entire front of the machine.
John Workman is an experienced MSHA surface coal mine
inspector with 20 years additional experience in the coal mining
industry ranging from general laborer to mine foreman. His
testimony is largely undisputed. On May 21, 1996, Workman
inspected Hobet's No. 21 Surface Mine. As he approached the
drill bench near the Wabco parking area he observed a drill
releasing "very noticeable" visible clouds of dust. The drill,
Marion rock drill company number 109622, was operating on a level
bench near the access road. Workman drove toward the drill,
exited his jeep, and approached the drill on foot. He walked
around the drill taking photographs of the conditions he
observed. The drill cab was approximately 10 to 12 feet high and
the dust rose above the cab and enveloped the machine. The wind
was changing directions at the time of the inspection. Several
holes had been drilled on the bench prior to Workman's arrival.
He concluded that the dust collection system was not operating
properly.
While the machine was drilling, Inspector Workman observed
the driller helper exit the greasing room at the rear of the
drill, walk through the dust cloud along the walkway, and enter
the operator's compartment. He also saw the drill operator
briefly leave his cab after drilling had ceased but while dust
remained suspended in the air around the machine.
Workman opined, based on the amount of material around the
drill hole, that the hole he observed being drilled had been
collared before his arrival. Upon closer examination he found
that the skirt rubber on the drill had not been properly
maintained in that it was pushed-out and bent-up, leaving an
opening to impede the collection of dust. In particular, he
observed that the rear corner was rolled up so that it could not
seal the area under the drill deck. Workman believed that this
condition existed before the current shift because rubber would
not assume this shape and maintain that shape without having
taken this position over an extended period of time.
Workman also examined the inside of the operator's cab.
Drill dust, light to dark grey in color, coated the controls,
window sills, and flat surfaces throughout the inside of the cab.
He opined that the drill dust had entered the cab because the
pressurization unit was not working properly. The air
conditioning filters, air conditioning outlets, and the
circulating system where the air conditioner was located, were
full of dust. Workman testified that when he removed the vent
covers to the air conditioning system, he could "dig" the dust
out of the vents. The dust was "real thick and real heavy up in
the compartment of the circulating part of the air conditioner,"
and the vents blew the air down from the ceiling into the cab
where the driller operator and helper worked. The inspector
opined that the large quantity of dust inside the cab and air
conditioning system had accumulated over a long period of time
and was not the result of the cab door having been left open or
the brief process of collaring. In addition, based on the fact
that there were holes in the dust hose (which had previously been
taped and which needed re-taping) indicated to Workman that the
system had not been maintained over a long period of time.
On May 28, 1996, when Inspector Workman returned to the mine
to terminate the citation, repairs had not yet been made because
the mine had been idle since May 22, 1996. Accordingly, he
extended the abatement period to May 30, 1996. On May 30, he
returned to the mine and again observed the drill while
operating. There was no visible airborne dust present and he
terminated the citation. Hobet foreman Jerry Simmons told
Workman that in order to eliminate the dust clouds, Hobet
installed new filters on the machine, installed belts on the
drive motor to increase suction, repaired the damaged skirt
rubber, and repaired a damaged suction line (dust hose). Workman
observed that these components were essential to the drill's dust
collection system, and that a problem with the filters alone
would render the dust collection system inoperative.
According to Workman, as of May 30, 1996, however, the
company had still not corrected the dust conditions inside the
operator's cab. The Chief Maintenance Foreman, Lonnie Stanley,
told the inspector that the drill was 15 years old, and that
"possibly the technology had been outdated." He acknowledged
that they were aware of the problem. Jerry Simmons also
acknowledged that they knew that they had a problem with the
drill.
On June 3, 1996, Inspector Workman again returned to examine
the operator's cab. Jerry Simmons explained that the cab had
been cleaned out, the circulating compartment of the cab had been
eliminated, and another circulation area, that would allow the
air to blow on the operator, had been formed. The cab now had
neutral pressure and no outside air was entering.
Perry Bias was the drill helper working on the Marion drill
on May 21, 1996. He had been working as a helper on the Marion
drill for about 4 years. On May 21, they began drilling around
8:15 a.m. According to Bias, conditions outside the cab were
very dusty and he was exposed to drill dust. He was not wearing
a respirator, and he had never been fit-tested for one. His
duties as a driller helper required him to leave the cab during
drilling to check fluid levels and to investigate any problems
that arose. On these occasions, it was necessary for him to go
to the rear of the machine by way of the outdoor catwalk. He
also left the cab several times each shift to use the bathroom
and to mark the holes for the drill operator. Drilling sometimes
was in progress when he left the cab to mark holes. Bias
estimated that on an average shift, he left the cab eight to
twelve times while drilling was in progress and was not always
able to avoid the dust.
Bias further testified that conditions inside the cab were
always dusty, and that included May 21, 1996. He maintains that
he reported the dusty conditions inside the cab on the Marion
drill to management nearly every day for four years. The cab was
not pressurized and the air conditioning system was pulling
outside air into the cab through cracks. Part of Bias' job was
to clean the cab. According to Bias, within an hour after he had
cleaned the cab, the dust would return to the extant that he
could write his name in the drill dust on the window sills.
Sanford Johnston was the drill operator working with Bias on
the Marion drill that day. He had been operating that drill
since February 1995, and worked six days a week, 8:00 a.m. to
4:00 p.m. He estimated that, when the inspector arrived, he had
drilled the extant hole 25 to 35 feet deep. According to
Johnston, conditions outside the cab that day
were "very dusty," and were typical of conditions at
that mine. Johnston was not wearing a respirator and had never
been fit-tested for one. He acknowledged that, in any event, a
respirator would not seal around his beard. After the citation
was issued that day, holes were found in a large dust hose.
Johnston maintains that he had previously reported that
condition, but rather than replace the hose, duct tape had been
used on several occasions in an effort to plug the holes.
Johnston confirmed that the cab was always dusty. The cab
was not pressurized and outside air was being pulled inside
through cracks and holes in the doors and windows. He and Bias
had repeatedly plugged the larger holes in the windows and doors,
but he noted that it was not possible to plug all the holes. He
noted that when they took apart the vents to the air conditioning
system that day, they found a "wheelbarrow load of dust" in the
system. He claims that he and his helper always reported dust in
the cab on their pre-operational checklists.
Citation No. 7159321
Inspector Workman issued this citation on May 30, 1996. It
alleges a "significant and substantial" violation of 30 C.F.R. �
72.620 and charges as follows:
The Robbins highwall drill co. no. 116181, operating in
the no. 18 pit drill bench area is observed during drilling
operations with excessive amounts of visible airborne drill
dust present, around the cab, front and surrounding areas.
Workman left the Marion drill around 10 a.m. on that day.
He then observed another drill generating dust over 100
yards away in the No. 18 pit drill bench area. Workman
pulled up to the drill, parked his jeep and began to document
the drill on his video camera as he approached. It was a
Robbins highwall drill company number 116181. There was
drill dust around the cab and the drill. The hole was
collared at the time of the inspection and the drill operator
told Workman that the hole had been drilled to 28 feet.
Hole loaders and an endloader operator were working about 50
feet from the drill. Others were walking within 15 to 20 feet of
the drill during the inspection. Workman acknowledged that he
did not see any miners directly in the visible dust but noted
that wind conditions were changing, and it was expected that
several more hours would be required to finish loading the holes.
Jerry Simmons told the inspector that the filters were dirty
and, in order to abate the conditions, they were changed. Hobet
also installed a new piece of skirt rubber on the drill to
replace skirting that had been torn away. On June 3, 1996, after
the repairs, Inspector Workman observed the Robbins drill in
operation with no visible drill dust, and terminated the
citation.
Docket No. WEVA 96-178
Citation No. 7159340
This citation, issued July 17, 1996, alleges a "significant
and substantial" violation of 30 C.F.R. � 72.620 and charges
as follows:
The Ingersoll Rand Rock Drill Co. No. 61170,
operating in the 295 shovel pit area is observed during
drilling operations with excessive amounts of visible
airborne dust present around the operators compartment
and surrounding areas.
On July 17, 1996, Workman inspected the Hobet Peats Branch
No. 3 Mine. As he drove along the 295 shovel pit area, he
observed a drill more than 100 yards away releasing a "lot of
dust." It was Ingersoll Rand rock drill company number 61170.
Workman photographed the drill and the surrounding conditions as
he conducted his inspection. The visible dust extended above the
top of the cab and in to the surrounding area. The rubber
skirting was raised off the ground approximately three to four
inches, and dust was emanating from under it. Dust was also
being generated from the top of the drill deck through the donut.
The filters were also dirty and needed to be changed. The drill
bit was more than halfway down when the inspector approached,
indicating that the hole had already been collared.
Charles Wiseman, a driller operator, was the miner's
representative traveling with Inspector Workman that day.
Wiseman observed an "excessive amount of dust" coming from under
the drill curtain. It was so thick he could not see through it.
Workman did not observe any miners working directly in the dust
and Wiseman estimated that the powder crew of five or six men was
working 50 to 100 feet away. Both Workman and Wiseman opined
that the crew could have been exposed to dust if the wind should
change direction. The drill holes were positioned about ten feet
apart, and it is not disputed that blasters can work within 10 to
20 feet of the drill. An unidentified blaster purportedly told
the inspector that they had been working in similar conditions
for two weeks.
Edgar Chambers was operating the cited Ingersoll Rand rock
drill on July 17. He had been a driller operator at the Peats
Branch Mine for eight years. Chambers confirmed that the dust
conditions outside of the cab that day were "bad" and stated that
the curtain was too short. Chambers claimed that he had problems
having maintenance performed on his drill sometimes taking as
long as a week before they would be fixed. He had recently
waited three weeks for a dust curtain to be repaired and he
continued to operate the drill under dusty conditions.
Frank Stover was working as a surface blaster near the
Ingersoll Rand rock drill that day. Stover has worked in surface
mining for 11 years and around drills for six to seven years. He
loads the drill hole stems with drill cuttings, wires the shots,
and blasts them. On July 17, he arrived at the worksite around
7:00 a.m. Dust was emanating from the drill "pretty bad" and, at
times, Stover was working in the drill dust. He estimated that
he was 100 feet from the drill when it was shut down and that one
member of the crew was 50 feet closer. He testified that on a
typical day, he would work as close as ten feet to the drill
while drilling is in progress and although he tries to maneuver
out of the dust, because of the wind, he is not always able to
avoid it.
Rick Phillips was also working as a surface blaster near the
Ingersoll Rand rock drill on July 17. According to Phillips the
dust conditions were "bad" around the drill that day. There was
a large cloud of dust around the cab and drill and the dust was
so thick near the drill that it was difficult to see through it.
The dust was present from the time the blasters arrived around
7:00 a.m. While he was working between 50 and 100 feet from the
drill when the inspector arrived, he usually works within 20 feet
of the drill. The other blasters generally worked within 20 to
30 feet of him. According to Phillips, because of the changing
wind conditions, dust from the drill reached the blasters.
Phillips estimated that if the drill had not been shut down that
day, the blasters would have worked approximately five hours near
the Ingersoll Rand rock drill. Phillips did not recall whether
he wore a respirator that day. On July 18, 1996, after repairs,
the inspector observed the drill operating without generating
dust.
Docket No. WEVA 96-185
Citation No. 4629641
Jerry Robertson, an MSHA surface mine inspector issued this
citation on July 8, 1996, at the Hobet No. 7 Mine. The citation
alleges a "significant and substantial" violation of 30 C.F.R. �
72.620 and charges as follows:
Management and/or the operator failed to effectively
control the dust being produced by the Ingersoll Rand Drill
DMSOE C/O 23161 at the 10 pit area. The writer observed the
following: (1) dust in the air, over under and around the
operator's cab (white in color), (2) defective door seals;
defective air conditioning (temperature 80�); (3) dust
coming up around drill stem, (4) defective cyclone
discharge, (8) missing discharge flex tube, (6) cyclone
system appears to [be] inadequate at the time of inspection,
due to the amount of dust being discharged.
Robertson has five years experience with MSHA and 23 years
experience in the coal mining industry, including work as an
instructor and mine foreman. On July 8, 1996, Michael Hudak was
a mining engineer with MSHA District 4. He is a 1961 graduate of
West Virginia University with honors in mining engineering. On
November 17, 1997, Hudak became a coal mine health and safety
specialist in MSHA's safety department in Arlington, Virginia.
He has 36 years experience in the mining industry including
work as a project engineer and mine manager and has been with
MSHA for about four years.
On July 8, 1996, Robertson and Hudak inspected the No. 7
Surface Mine. They were driving along the access road to pit 10,
about one-quarter mile away, when they saw dust emanating from a
drill operating at the pit on a reclaim bench. They approached
the drill, an Ingersoll Rand DM 50, observed drilling operations
for several minutes, and then shut it down. The dust cloud
generated from drilling was approximately 15 to 20 feet wide by
15 to 20 feet high. Drill dust was seen over, under and around
the operator's cab. The interior of the cab, where the drill
operator worked, was also heavily dusted. Robertson placed his
hand on a flat surface inside the cab, pulled it away, and saw
that the imprint of his hand remained. Dust covered the ceiling,
sides, doors and controls. Robertson concluded, based on the
amount of dust, that it could not have accumulated as a result of
collaring alone.
The rubber seals on the door to the operator's cab were
"very, very ragged." Robertson stated that when he looked at the
seals from inside of the cab, he could see light from the
outside. Hudak noted that there were places where the seal
itself was torn completely off and there were few places where
the door was actually sealed. Robertson concluded that it would
have taken several days for the seals to have deteriorated to the
condition in which they were found. Curtis Lester, the driller
operator, confirmed that the seals had been in poor condition for
several days.
The air conditioner was also inoperative although its blower
was functioning. However, given the defective door seals, dust
from the outside was being brought in. The outside temperature
in Charleston, West Virginia on July 8, 1996, was 80 degrees.
Inspector Robertson speculated that it was only a matter of time
before the heat inside the cab would become unbearable, and the
operator would open the windows for relief, thereby exposing
himself to even more of the drill dust. The driller operator
told Inspector Robertson that there had been problems with the
air conditioner for several days.
The inspectors opined that dust observed inside the cab was
drill dust that had entered the cab through the deteriorated
rubber door seals. With the door seals failing to seal, and the
air conditioner failing to completely pressurize the cab, there
was nothing to preclude drill dust from entering the cab.
The inspectors also found that the cyclone discharge was
defective. It was not sealed against the side of the dust
collector system. Therefore, when the system discharged the dust
was blown sideways into the atmosphere at eye level instead of
dropping down to the ground. In addition, the discharge flex
tube was missing. This component of the drill dust control
system consists of a long tube which is attached to the end of
the discharge chute. It is designed to force the discharged dust
to the ground in a concentrated form. Without the discharge flex
tube, dust was being propelled into the air in an uncontrolled
manner. The drill stem collar was also defective and was
allowing dust to be blown back into the drill deck and cab areas.
Finally, the inspectors concluded that the cyclone, which is the
vacuum for the drill dust control system, was inadequate.
The hole was well past the collaring stage. The drill was
on its second steel, about 25 feet into the hole. Inspector
Robertson noted that almost half of the drill steel was in the
ground when he arrived.
Curtis Lester, the driller operator who ran the Ingersoll
Rand DM 50 drill on July 8, 1996, had worked in surface mining
for over 20 years and had worked for Hobet for over 17 years. He
had been a driller operator at the No. 7 Surface Mine for 15
years, and had operated the Ingersoll Rand DM 50 drill for the
three to four months it had been on the job site. On July 8, he
arrived at the bench around 8:30 a.m. The dust that day was
"pretty heavy" and conditions inside the cab were dusty. Inside
the cab, he used rags to wipe the controls and windows, but a
"little bit later on, it would be dusted again." He typically
worked inside the cab, unless he was laying out holes.
On several occasions before July 8, Lester had reported the
dusty conditions inside the cab to management. The dust
collector often broke down (about every other day) and the drill
dust was entering the cab through cracks in the doors. Before
July 8, the company tried to put a seal around the cracks but
that was ineffective and the dust continued to enter. Lester
also remembered that July 8 was a sunny, dry day, and it was
possibly 80 degrees in the cab. The blowers were working but the
air conditioning was not functioning, and therefore, hot air was
merely being circulated.
Lester confirmed that there was drill dust coming up around
the drill stem. He had reported that condition to management
before. The dust around the drill stem was caused by a bent
piece of steel. He also confirmed that there was a problem with
the exhaust chute coming off the dust collector and that the
cyclone system was inadequate. Lester stated that when he called
mechanics to fix the dust collector, "a lot of times they would
be busy working on other equipment at the shop and the equipment
foreman couldn't release their mechanics to send them out at that
time." Lester was not wearing any respiratory protection that
day.
On July 9, 1996, Inspector Robertson returned to the mine to
re-inspect the drill. He found that the door seals had been
repaired, the air conditioning was working, and the operator's
cab had been cleaned. However, the drill was continuing to
release dust into the work environment around the drill stem and
around the discharge chute in the same quantity as the day
before. Accordingly, he issued Section 104(b) "failure to abate"
Order No. 4629643. That order is now final and will be
considered in assessing a civil penalty for the violation at
issue. On July 10, 1996, Robertson again returned to the mine to
examine the drill. He found that the filters had been replaced,
the discharge chute had been sealed against the dust collector
and a flex tube and dust collars had been installed. As a
result, the drill dust was under control, and no dust was
released even during collaring.
Docket No. WEVA 97-33
Citation No. 7152206
This citation, issued on September 23, 1996, alleges a
"significant and substantial" violation of 30 C.F.R. � 72.620,
and charges as follows:
The Ingersoll Rand DM 50 Drill, Co. No. 22875, does
not have effective dust control measures being used
during operation. The dust collection system is not
working properly, causing a visible cloud of dust to be
discharged from the exhaust blower. Two members
of the blasting crew are exposed to the excessive discharge
of dust.
Donald Winston has been an MSHA inspector for approximately
three-and-a-half years. He has a master's degree in mining
engineering, a bachelor's degree in civil engineering and is a
registered professional engineer. Winston has also worked as
chief engineer for two mining companies for a total of 17 years.
At the time of the hearing, he was working as a Compliance
Analysis Program (CAP) Specialist with MSHA. In that capacity,
he visited surface mines and discussed the hazards of silicosis
with employees.
On September 23, 1996, Inspectors Winston and Workman
visited the Peats Branch No. 3 Surface Mine. Around 10:25
a.m., they drove up an inclined road towards a box cut, and
parked their truck near the entrance. They observed a drill
(Ingersoll Rand DM 50 company number 22875) operating in the box
cut discharging dust from the exhaust blower. A stream of dust
was shooting out the exhaust port of the dust collector at high
velocity and blowing across the drill bench. The dimensions of
the exhaust port were approximately eight by ten inches, and
the visible dust stream was being pushed approximately 30 to
40 feet from the drill.
Two blasters, who were not wearing respiratory protection,
were working within 70 to 80 feet of the drill. While these
men were not engulfed in the visible dust at the time of
the inspection, they were working directly across from
the stream of drill dust. Winston speculated that if the wind
should change direction, these miners would have been exposed
to the drill dust. It was also Winston's opinion that high winds
were likely to occur in the area in which the drill was
operating. Peat's Branch No. 3 is a mountaintop surface
mine from which the trees have been removed. Box cuts are more
likely than other areas to have turbulent winds because
of the turbulence produced when the wind hits the highwalls.
This box cut had three highwalls and one open side. The
highwalls on the sides were approximately 80 to 100 feet high.
In the confined area of the box cut, it was opined that winds
could carry drill dust to anyone working therein.
The drill was shut down, and new filters were installed on
the dust collector. The inspectors then observed the drill
operating without visible dust being discharged from the exhaust
blower.
Evaluation of the Evidence
The mandatory standard at issue, 30 C.F.R. � 72.620,
provides as follows:
Holes shall be collared and drilled wet, or other
effective dust control measures shall be used, when drilling
non-water-soluble material. Effective dust control
measures shall be used when drilling water-soluble material.
In the cases at bar it is undisputed that the subject holes
were not drilled wet. I find that the Secretary has also clearly
met her burden of proving in each of these cases by a
preponderance of the evidence that other effective dust control
measures were not being used. In each of these cases the
Secretary has established by a preponderance of the evidence that
dust controls were missing, defective, or ineffective. Under the
plain meaning of the cited standard and the facts of these cases,
that is sufficient to establish the violations. I note that this
interpretation is also consistent with the preamble to the cited
standard in which it is clearly stated that MSHA intends to cite
mine operators for violations of this standard "when a dust
control is missing, defective, or obviously ineffective by visual
inspection" (Gov. Exh. 54 at 8324). The preamble also
specifically rejects the proposition that a total mechanical
failure of a drill dust control system would necessarily have to
exist before a citation for a violation of this standard may be
issued. In this regard, the preamble states:
Most failures of drill dust controls are readily
identified and easily corrected. Rather than mechanical
breakdown of the controls, malfunctions are generally the
result of oversights or poor maintenance, such as failure
to turn on water, to fill water-holding tanks, or to empty
filters. (Gov. Exh. 54 at 8323).
It is therefore not necessary in these cases to determine
whether the presence of visible dust alone can establish a
violation of the cited standard. Moreover, contrary to Hobet's
arguments, the language of the cited standard does in fact
provide reasonable notice of what is forbidden and, therefore,
the standard comports with due process. Diamond Roofing Co. v.
OSHRC, 528 F.2d 645 (5th Cir. 1976); Phelps Dodge Corp. v.
FMSHRC, 681 F.2d 1189 (9th Cir. 1982). The Commission in
Secretary v. U.S. Steel Mining Co., 15 FMSHRC 1541, 1546 (August
1993), also held that an operator cannot legitimately contend
that it did not have notice of the conduct required by a
regulatory standard if it has been cited previously by an
authorized representative of the Secretary for a similar
violation of the same standard. The record herein clearly
establishes that Hobet has previously been so cited. (See Gov.
Exh. 14).
Citation No. 7152439
The Secretary argues that dust control on the Marion drill
here cited was ineffective because the dust collection system had
not been maintained in proper working condition. The drill table
shroud (skirt rubber) had not been maintained properly so as to
provide an enclosed area for the dust collector to maintain the
necessary capture of the dust being generated by the drilling
process. In addition, the filters used in the dust collector had
not been maintained to ensure that sufficient air could be moved
by the collector to capture the dust laden air being expelled
from the drill hole by the bailing air. The dust collector
blower unit had also not been maintained as designed with the
drive belts to maintain sufficient air movement through the dust
collector to pick up the dust-laden air being generated by the
drilling process. Finally, there were holes in the dust hose
which allowed rill dust to escape into the work environment .
Robert Thaxton, MSHA's Supervisory Industrial Hygienist and
expert witness in dust control opined that, indeed, these
conditions constituted defects to the drill's dust collection
system.
While not disputing the factual allegations, Hobet appears
to argue that the evidence shows the dust control measures were
inefficient but not ineffective within the meaning of the cited
standard. I find however that the Secretary has met her burden
of proving that effective dust control measures were not being
used.
Citation No. 7159321
The Secretary maintains that dust control on the Robbins
drill here cited was likewise ineffective because the dust
collection system had not been maintained in proper working
condition. A section on one side of the shroud had been torn
away and the shroud was elevated so that there was a gap of about
four inches between the bottom of the shroud and the ground. The
dust collection filters also were dirty and reduced the quantity
of air which could be moved through the dry dust collector.
Thaxton opined that these conditions prevented the dust collector
from maintaining a sufficient capture velocity to pick up the
drill dust as it exited the drill hole. He further opined that
these conditions constitute defects to the drill's dust
collection system.
Hobet here argues that because both filters and skirt
rubbers are routinely replaced "every 250 hours or as needed,"
there was no violation. This argument is no defense to the
violation however, but goes only to the issues of abatement
and negligence. The violation is accordingly proven as charged.
Citation No. 7159340
The Secretary argues that dust control on the Ingersoll Rand
rock drill here cited was ineffective because the dust collection
system had not been maintained in proper working condition. The
drill was operating on an incline with the dust shroud elevated
off the ground but the violation was also the result of dirty
dust collection filters. Thaxton opined that the combination of
the improper work practice and defective conditions on the drill
decreased the capture velocity and rendered the system
ineffective.
Hobet again does not dispute the factual allegations but
argues that it is common industry practice to maintain skirt
rubbers three to four inches off the ground and, under some
circumstances, as high as six inches off the ground. This
argument is no defense however and the undisputed facts alone are
sufficient to sustain the violation as charged.
Citation No. 4629641
The Secretary maintains that dust control on this Ingersoll
Rand drill was ineffective because the dust collection system had
not been maintained in proper working condition. The facts are
undisputed. Dust was being released into the work environment
around the drill stem due to a bent piece of steel. The system
also had a defective cyclone discharge and missing discharge flex
tubes. Thaxton opined that these conditions were defects that
rendered the system ineffective. According to Thaxton, the drill
stem collar and improperly operating cyclone allowed the dust
from drilling to escape into the atmosphere. Moreover he
concluded that the unsealed cyclone discharge and missing flex
tube allowed drill dust that should have been pulled into the
dust collection system to be released into the atmosphere
surrounding the operator's cab.
Hobet does not dispute the facts but claims that the cited
defects would be corrected by routine maintenance. These claims
do not of course, afford a defense to the violation but is a
factor that may mitigate negligence. Hobet also appears to argue
that the Secretary has the burden of proving that the cited
defects can be avoided by current technology. Since Hobet
corrected the defects with current technology the argument is
obviously without merit.
Citation No. 7152206
The Secretary notes that large quantities of visible
airborne dust were being blown out of the exhaust blower of
the cited Ingersoll Rand DM drill at high velocity. Hobet
concedes that the filters were wet and clogged. Thaxton
opined that the fact that the drill dust was exiting the
dust collector exhaust established that the system was not
filtering the small dust particles from the air, but was
simply moving the drill dust from the confines of the
deck shroud to the atmosphere around the drill. New filters
were installed on dust collectors and visible dust was
no longer observed exiting the exhaust blower. It may
therefore reasonably be inferred that the filters had been
defective or ineffective.
The facts are not disputed by Hobet but it argues that the
citation should nevertheless be vacated because clogged filters
cannot be avoided. This argument affords no defense. While
clogged filters may not be avoided they can nevertheless be
replaced.
In affirming the violations in these cases, I have not
disregarded Hobet's repeated claims that dust control measures
are "plagued with numerous problems brought about by hard use,"
that it utilized the "best dust control technology available,"
acted "promptly" to repair problems with the dust control
systems, and "instructed miners to withdraw if dust conditions
get too bad before maintenance could make repairs" (Resp.'s Brief
Pg. 48). However, these claims do not provide a defense to the
violations and are accordingly rejected. Such issues may be
considered in regard to abatement and possible mitigation of
negligence.
Significant and Substantial
Under present law, the elements for determining whether a
violation of a mandatory health standard is significant and
substantial are: (1) an underlying violation of the mandatory
health standard; (2) a discrete health hazard - - a measure of
danger to health - - contributed to by the violation; (3) a
reasonable likelihood that the health hazard contributed to will
result in an illness; and (4) a reasonable likelihood that the
illness in question will be of a reasonably serious nature.
Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984); Secretary of Labor v. Consolidation Coal Company, 8 FMSHRC
890, 897 (June 1986), aff'd, 824 F.2d 1071 (DC Cir. 1987); See
also Secretary of Labor v. FMC Wyoming Corp., 11 FMSHRC 1622,
1626 (September 1989).
The determination of "significant and substantial" must be
based on the facts existing at the time the citation is issued
but also in the context of continued normal mining operations
without any assumptions as to abatement, Secretary of Labor v.
U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574 (July 1984).
Thus, it cannot be inferred that the violative condition will
cease. Secretary of Labor v. Gatliff Coal Company, 14 FMSHRC
1982, 1986 (December 1992).
In the Consolidation Coal Company case (Consol) the
Commission adapted the Mathies test to a violation of a mandatory
health standard. In that case, Consol received a citation for a
violation of 30 C.F.R. Section 70.100(a), which requires that the
average concentration of respirable dust in the mine atmosphere
during each shift to which a miner is exposed be maintained at or
below 2.0 milligrams of respirable dust per cubic meter of air as
measured with an approved sampling device. Sampling results
showed that miners had been exposed to an average respirable dust
concentration of 4.1 mg/m3.
The Commission in Consol held that the violation was
significant and substantial. The Commission concluded that any
exposure above 2.0 mg/m3 based on designated occupation sampling
would satisfy the second element of the test, and therefore, the
violation posed a measure of danger to health. Id. at 898. The
Commission also found that there was a reasonable likelihood that
the health hazard contributed to would result in an illness. Id.
at 899. The Commission recognized that the development and
progress of respiratory diseases are due to the cumulative dosage
of dust a miner inhales, and that proof of a single incident of
overexposure does not, by itself, conclusively establish a
reasonably likelihood that respirable disease will result. Id.
at 898. The Commission recognized that although overexposure to
respirable dust clearly can result in chronic bronchitis and
pneumoconiosis, the effects of the health hazards associated with
overexposure to respirable dust usually do not cause immediate
symptoms, and that assessing the precise contribution that a
particular overexposure will make to the development of
respiratory disease is not possible.
Because of these considerations, the Commission concluded:
. . . given the nature of the health hazard at
issue, the potentially devastating consequences for
affected miners, and strong concern expressed by Congress
for eliminating respiratory illnesses in
miners, we hold that if the Secretary proves an
overexposure to respirable dust in violation of
section 70.100(a), based upon designated occupation
samples, has occurred, a presumption arises that the
third element of the significant and substantial
test - - a reasonable likelihood that the health
hazard contributed to will result in an illness - - has
been established. Id. at 899.
The fourth element of the significant and substantial
test, whether a reasonable likelihood that the illness in
question will be of a reasonably serious nature, was not
seriously disputed, and the Commission held that there is a
reasonable likelihood that illness resulting from overexposure
to respirable dust will be of a reasonably serious nature.
The Commission in Consol held that when the Secretary proves
that an overexposure in violation of 30 C.F.R. Section 70.100(a),
based upon designated occupation samples, had occurred, a
presumption arises that the violation is significant and
substantial. Id. The operator may rebut this presumption only
by establishing that miners in the designated occupation were not
exposed to the hazard posed by the excessive concentration of
respirable dust. Id.
On appeal, the DC Circuit affirmed the Commission's decision
and rejected Consol's argument that the presumption adopted by
the Commission lacks a rational basis because short-term exposure
to respirable dust can never result in a significant and
substantial violation. See Consol, 824 F.2d at 1085.
The Court reasoned as follows:
Consol's argument fails to consider the inherent
difficulties in enforcing a health standard designed to
prevent diseases caused by the cumulative effects of
repeated overexposure to a harmful substance. The harmful
effect of any one incident of exposure to excessive
concentrations of respirable dust is negligible - - as
the ALJ phrased it, a "drop in the bucket." Thus,
acceptance of Consol's argument would mean that no
violation of the respirable dust could ever be
designated as significant and substantial.
Id. at 1086.
In Secretary v. U.S. Steel Mining Co., Inc., 8 FMSHRC 1274
(September 1986), the Commission applied the analysis used in
Consol to a case involving the respirable dust standard when
quartz is present. After considering the legislative history
which discussed the Congressional intent to prevent respirable
diseases induced by silica-bearing dust, the Commission held that
any overexposure to respirable dust based upon designated
occupation sampling results giving rise to a violation of 30
C.F.R. Section 70.101 presents a discrete health hazard. See Id.
at 1279-1280. Thus the second element of the Mathies test had
been met.
The Commission then concluded that there was a reasonable
likelihood that the health hazard contributed to will result in
illness:
. . . The nature of the health hazard posed by
excessive concentration of respirable dust containing
quartz is in some respects greater than that posed by
respirable dust without quartz. The fibrosis associated
with silica-bearing dust is irreversible and may
continue to develop after exposure has ended. Although
the present state of scientific and medical knowledge does
not make it possible to determine the precise point at
which respirable diseases induced by silica-bearing dust
above the applicable exposure limit are an important risk
factor. Accordingly, given the nature of the heath
hazards at issue, the potentially devastating
consequences to affected miners, and the strong concern
expressed by Congress for the elimination of occupation-
related respiratory illnesses in miners, we hold that
where the Secretary proves an overexposure to respirable
dust in violation of section 70.101 based upon designated
occupation samples, a presumption arises that the third
element of the significant and substantial test - - a
reasonable likelihood that the hazard contributed to
will result in an illness - - is established.
Id. at 1281.
The fourth element of the significant and substantial test,
a reasonable likelihood that the illness in question will be of a
reasonably serious nature, was not disputed. Id. The Commission
concluded by holding that proof of an overexposure to respirable
dust containing silica gives rise to a presumption that the
violation is significant and substantial. Id.
In the cases at bar, the first element of the Mathies test
as modified in the Consol cases, has been met, i.e., the
Secretary
has proven a violation in each case of the mandatory health
standard at 30 C.F.R. � 72.620. It is the second element, i.e.,
the existence of a discreet health hazard - - that is, a measure
of danger to health - - contributed to by the violation, for
which the Secretary has failed to sustain her burden of proof.
In contrast to the U.S. Steel case wherein the second Mathies
element was met by proof of overexposure to respirable dust by
designated occupational sampling, the Secretary here seeks to
establish that element by first creating an evidentiary
presumption that visible dust clouds emanating from surface coal
mine drills such as those described in these cases by
photographic and/or testimonial evidence contain hazardous levels
of respirable coal mine dust and silica (Gov. Exh. No. 26 p. 12).
In effect, the Secretary thereby seeks to shift the burden of
proof to the operator to disprove that his miners were
overexposed to respirable dust and silica -- and thereby to
require the operator, rather than the Secretary, to create a
program for, and to conduct respirable dust monitoring of, its
miners.
However, as the Circuit Court for the District of Columbia
recently stated, in reviewing a similar presumption sought by the
Secretary, in Secretary v. Keystone Coal Mining Corporation et
al., No. 95-1619 (D.C. Cir. August 21, 1998):
Such a presumption is only permissible if there is
"a sound and rational connection between the proved and
inferred facts," and when "proof of one fact renders the
existence of another fact so probable that it is sensible
and timesaving to assume the truth of [the inferred]
fact...until the adversary disproves it." Chemical Mfrs.
Ass'n v. Department of Transp., 105 F.3d 702, 705 (D.C. Cir.
1997) (quoting NLRB v. Curtin Matheson Scientific, Inc.,
494 U.S. 775, 788-89 (1990)) (internal citation and
quotation marks removed).
Even assuming, arguendo, that the Secretary is not seeking
to establish a presumption but rather is seeking on a case by
case basis to utilize indirect or circumstantial evidence to
prove that the miners at issue were overexposed to respirable
silica-bearing dust there must be a rational connection between
the evidentiary facts and the ultimate fact to be inferred.
Garden Creek Pocahontas, 11 FMSHRC 2148 (November 1989).
Moreover, contrary to the Secretary's suggestion, her burden of
proof, by a preponderance of the evidence, is not reduced for the
purpose of establishing the second element of the Mathies test
because it may be difficult in a particular case to prove that
element or because she has not yet developed a monitor that will
obtain accurate real time readouts of exposures by miners to
respirable dust.
In attempting to prove the second element of the Mathies
test the Secretary relies upon the testimony of her expert,
Robert Thaxton. Thaxton, an MSHA Supervisory Industrial
Hygienist, has a bachelor's degree in chemistry and a master
of science degree in occupational health and safety
engineering. He has been employed by the Petitioner and MSHA
as an industrial hygienist since 1976. Thaxton was accepted
at hearing as an expert witness in drill dust control systems
and respirable dust sampling.
Thaxton was not present and did not observe first hand the
conditions surrounding the issuance of any of the citations at
issue. His conclusions were based on photographs (Citation No.
7152439 and 7159340), a videotape (Citation No. 7159321) and oral
testimony of eyewitnesses regarding the existence of "excessive
amounts of visible dust". With respect to Citations No. 4629641
and 7152206, there were no photographs or videotapes of the
conditions and Thaxton relied solely upon testimony that "visible
dust" was present. Thaxton asserts that visible dust clouds
similar to those described in these cases result in respirable
dust concentrations of 10 to 100 mg/m3, and that, therefore,
there is no need to perform respirable dust sampling to establish
individual overexposures to respirable dust.
Thaxton's analysis proceeds as follows:
There is no reason to sample in situations where
visible dust is being emitted from a drill. NIOSH, The
Bureau of Mines and MSHA have determined that highwall
drills are the single greatest source of respirable coal
mine dust at surface coal mines and that the dust
generated from drilling operations contains large
quantities of crystalline silica or quartz. This makes
sense when one considers that the drilling process is
a mechanical grinding, the purpose of which is to
pulverize the rock into small particles. This
grinding process inherently produces respirable dust
along with larger particles and cuttings. The method
used to remove this particulate matter from the drill
hole is high pressure compressed air which forces this
harmful material into the work environment. If the dust
collector is working improperly, this harmful respirable
dust is released into the work atmosphere.
We know that a large portion of the dust produced from
surface drilling contains crystalline silica because
the coal deposits are laid down with sedimentary rocks
and clay, with much of the lock being sandstone and/or
shale and clays. All three materials, as well as some
coals, contain crystalline silica. The Bureau of Mines
publication entitled "Sources and Characteristics of
Quartz Dust in Coal Mines" found that at 9 different
surface coal mines, the quartz content of drill cuttings
ranged from 20.0% to 69.0%.
The presence of respirable dust as a component of visible
dust is an elementary principle of industrial hygiene.
The very existence of a visible dust cloud in suspension
long enough to be seen 20-30 feet away from the drill
hole established the existence of significant amounts
of respirable dust. This is so because respirable
particles, that is, those particles that are 10_m
or smaller in size, remain suspended in the air much
longer than non-respirable particles. For example, a
10_m particle will only f all approximately 0.03 cm/sec
in still air. This principle is discussed in the
book titled "Pulmonary Deposition and Retention of
Inhaled Aerosols." There it is stated that an aerosol
includes a system of suspended particles in air that
are fine enough to possess considerable stability as
an aerial suspension. Particles in the 10-20_m size
range are in suspension only briefly; however, if one
observes a dust suspension or cloud, the majority of
particles making up that cloud are in the respirable
range � that is, smaller than 10_m. Similarly, the
Occupational Safety and Health article titled "Dust
Control in the Working Environment (Silicosis)" states
that particles smaller than 10_m can remain airborne
for a very long period and that these particles travel
with the air currents. The Bureau of Mines article
entitled "Transport of Respirable Dust from
Overburden" concluded that 42% of the dust from drilling
traveled a distance of 28.96 maters (95 feet). In
addition, in the primer industrial hygiene text
"Fundamentals of Industrial Hygiene" published by
the National Safety Council (4th Ed.), it is stated
that respirable dust particles are visible in strong
light and that high concentrations of respirable dust
particles may be perceived as a haze or have the
appearance of smoke.
Studies by the former Bureau of Mines indicate that visible
dust clouds similar to those photographed, videotaped and
described in the current case have respirable coal mine
dust concentrations of 10 to 100 mg/m3. For example,
the Bureau of Mines study entitled "Quartz Dust Sources
During Overburden Drilling at Surface Coal Mines" found
dust concentrations as high as 98.0 mg/m3 at the drill
shroud. My own fieldwork confirms the fact that visible
clouds of dust contain high levels of respirable coal mine
dust. Without exception, every time that I have sampled
an occupation exposed to visible dust from drilling, I
have found high levels of respirable dust.
(Gov. Exh. No. 26 pp. 7-8).
The weight to be given Thaxton's opinions in support of the
Secretary's claims that the violations herein constituted a
discrete health hazard depends on the relevance and reliability
of the underlying scientific evidence, i.e., the above
publications and studies and Thaxton's own "field work." In
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the U.S. Supreme Court provided guidelines for
determining when scientific evidence is reliable:
[I]n order to qualify as "scientific knowledge," an
inference or assertion must be derived by the scientific
method. Proposed testimony must be supported by
appropriate validation - - i.e., "good grounds," based
on what is known. . .
Ordinarily, a key question to be answered in determining
whether a theory or technique is scientific knowledge
that will assist the trier of fact will be whether it
can be (and has been) tested. "Scientific methodology
today is based on generating hypotheses and testing
them to see if they can be falsified; indeed, this
methodology is what distinguishes science from other
fields of human inquiry"...
Another pertinent consideration is whether the theory or
technique has been subjected to peer review and publication.
Publication (which is but one element of peer review) is not
a sine qua non of admissibility; it does not necessarily
correlate with reliability . . . But submission to the
scrutiny of the scientific community is a component of
"good science," in part because it increases the
likelihood that substantive flaws in methodology will
be detected. . . The fact of publication (or lack thereof)
in a peer reviewed journal thus will be a relevant,
though not dispositive, consideration in assessing the
scientific validity of a particular technique or
methodology on which an opinion is premised.
Id. at 590, 593-594 (citations omitted).
The U.S. Supreme Court has also stated that the reliability
of scientific evidence, or an expert opinion based thereon, can
be called into doubt if the studies upon which an expert bases an
opinion bear little factual similarity to the facts presented in
a particular lawsuit. General Electric Co. v. Joiner, 118 S. Ct.
512 (1997). The Supreme Court also held in that case that the
District Court did not abuse its discretion when it excluded an
expert's opinion that was connected to existing data only by ipse
dixit i.e. a bare assertion resting solely on the authority of
the individual expert. Id. at 519.
Within this legal framework and for the reasons set forth
below I find that the sources underlying Thaxton's opinions are
unreliable and/or irrelevant (bearing insufficient factual
similarity to the instant cases) and, accordingly, those opinions
cannot be accorded any weight. Those opinions, at bottom, are
indeed based only upon ipse dixit. There is simply too great an
analytical gap between the cited studies and Thaxton's opinions.
See Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1349,
1360 (6th Cir.), cert. den., 506 U.S. 826 (1992). Without
Thaxton's testimony the Secretary cannot sustain her burden of
proving the second element of the Mathies test in these cases and
has thus failed to prove that the violations at bar were
significant and substantial. Neither the Secretary's proposed
presumption nor the ultimate facts she seeks to have inferred can
be established by the evidence.
Thaxton's conclusions correlating visible dust emanating
from highwall drills and the exposure of the miners at issue to
respirable dust concentrations of 10 - 100 mg/m3, are based upon
seven sources: (1) a Bureau of Mines Publication entitled
"Sources and Characteristics of Quartz Dust in Coal Mines," in
which the quartz content of drill cuttings at nine different
surface mines (not including any of the Hobet mines at issue in
these cases) ranged from 20.0% to 69.0%, (2) selections from a
book entitled"Pulmonary Deposition and Retention of Inhaled
Aerosols," (3) an Occupational Safety and Health article entitled
"Dust Control in the Working Environment (Silicosis), (4) a
Bureau of Mines article entitled "Transport of Respirable Dust
from Overburden," (5) an industrial hygiene text "Fundamentals of
Industrial Hygiene" published by the National Safety Council (4th
Edition), (6) a Bureau of Mines study entitled "Quartz Dust
Sources During Overburden Drilling at Surface Coal Mines" and (7)
Thaxton's own field work in which "without exception, every time
that (Thaxton) sampled an occupation exposed to visible dust from
drilling, (Thaxton) found high levels of respirable dust." These
publications and studies have been examined and are rejected as
irrelevant and/or unreliable for the reasons set forth below.
"Sources and Characteristics of Quartz Dust in Coal Mines" (Gov.
Exh. No. 37)
This publication by the Bureau of Mines is cited by Thaxton
for the proposition that the quartz content of drill cuttings at
nine different surface coal mines ranged from 20.0% to 69.0%.
However, since the location and the composition of the geological
strata at the nine surface mines tested are not identified it
cannot be known whether there is any correlation between the
quartz content of drill cuttings at the tested mines and those of
the Hobet mines at issue in these cases. The relevance of the
cited study to the instant cases is therefore not established.
There is no rational connection between the evidentiary fact
alleged (that the quartz content of drill cuttings at nine
unidentified mines ranged from 20% to 69%) and the ultimate fact
to be inferred (that the miners at issue in the cases at bar were
overexposed to hazardous levels of quartz bearing respirable dust
at the times alleged). Garden Creek Pocahontas, 11 FMSHRC 2148
(November 1989).
"Pulmonary Deposition and Retention of Inhaled Aerosols"
(Gov. Exh. No. 32)
This publication is cited by Thaxton in his direct
examination for the following conclusions:
The very existence of a visible dust cloud in suspension
long enough to be seen 20-30 feet away from the drill
hole establishes the existence of significant amounts
of respirable dust. This is so because respirable
particles, that is, those particles that are ten microns or
smaller in size, remain suspended in the air much longer
than non-respirable particles. For example, a ten micron
particle will only fall approximately 0.03
centimeters/second in still air. This principle is
discussed in the book entitled, "Pulmonary Deposition and
Retention of Inhaled Aerosols." There it is stated that
an aerosol includes a system of suspended particles in air
that are fine enough to possess considerable stability
as an aerial suspension. Particles in the 10-20
micron size ange are in suspension only briefly; however,
if one observes a dust suspension or cloud, the majority
of particles making that cloud are in respirable
range--that is, smaller than 10 microns. (Gov.
Exh. No. 26 p. 7).
The cited text is inapposite to the cases at bar since it is
based upon an "approximate range of air movement in the so-called
'still air' of an ordinary closed room." These cases on the
other hand involve open-air benches exposed to winds of varying
velocities and directions. One case (Citation No. 7152206) also
involved the propulsion of dust from a blower at high velocity.
The effect of such velocities on the settlement rate of
respirable and non-respirable dust particles is not discussed.
The relevance of the cited study to the facts at bar has not
therefore been established and the study is accordingly rejected.
In his testimony Thaxton also cited the above text for the
proposition that a visible dust cloud is
an aerosol, that
aerosols are composed of particles less than 10 microns in size,
and thus a dust cloud is composed primarily of respirable dust.
According to Thaxton, a dust cloud could not be 99 percent
non-respirable dust, because "(i)f that cloud was 99 percent
non-respirable, the dust would be falling out and it wouldn't be
a cloud traveling 30 or 40 feet away from the drill." The
Secretary in her posthearing brief also reasserts that "particles
in the 10 to 20 micron range...are in suspension only briefly and
cannot float 30 to 40 feet away from a drill."
Thaxton's opinion and the Secretary's position are not based
however on the factual record at bar. In particular, with the
exception of testimony regarding Citation No. 7152206, neither
the miners nor the MSHA inspectors described the dust clouds 30
to 40 feet from the drills. Nor did they state, contrary to
Thaxton, that the dust clouds were 20 to 30 feet from the drills.
MSHA Inspector John Workman indicated that the dust cloud he
observed at the Hobet No. 21 Mine on May 21, 1996, was confined
to the area around the operator's cab, drill mast, and front of
the machine. (Citation No. 7152439). Similarly, Workman
indicated that the dust he saw at the Hobet No. 21 Mine on May
30, 1996, was also confined to the front and cab areas of the
drill. (Citation No. 7159321). MSHA Inspector Jerry Robertson
described the dust cloud he saw at the Hobet No. 7 Mine on July
8, 1996, at 15 to 20 feet high and wide. (Citation No. 4629641).
MSHA mining engineer Michael Hudak described that same dust cloud
as being 15 feet, 18 feet, or 20 feet wide and high. Even
Thaxton testified that the cloud depicted in Government Exhibit
No. 12-1E was no more than 20 feet wide. (Citation No. 7159340).
In addition the inspectors uniformly testified that they never
saw non-driller operators or helpers who were located 50 feet to
300 feet from the drills, in the dust.
Since Thaxton erroneously assumed that the dust clouds at
issue dispersed 20 to 40 feet from the drills, his conclusions
based upon the size of the dust clouds are likewise erroneous.
Accordingly for this additional reason Thaxton's conclusion that
the visible dust in these cases must have been comprised
principally of respirable particles can be given no weight.
As noted, Citation No. 7152206 issued September 23, 1996, at
Peats Branch No. 3 Mine, by MSHA Inspector Donald E. Winston, can
be further distinguished from the other citations. Winston
stated that the dust he saw streaming from the blower "a
substantial distance, 30, 40 feet" was not like the dust
clouds at issue in the other citations. The dust Winston
here observed was being propelled at a high velocity and
was "not as dense" as the dust clouds. As noted, the
studies relied upon by Thaxton do not discuss such high-
velocity projections or address how a velocity of the type
witnessed by Winston could affect the particle size or settling
rates.
It is also noted that while Thaxton cites this article to
support his statement that "if one observes a dust suspension or
cloud, the majority of particles making up that cloud are in the
respirable range --that is, smaller than 10 microns" nothing in
the two-page portion of the text submitted as evidence in this
hearing actually supports this statement.
"Dust Control in the Working Environment (Silicosis)" (Gov. Exh.
No. 34)
This article is cited by Thaxton for the proposition that
"particles smaller than 10 microns can remain airborne for a very
long period and that these particles travel with the air
currents." The generalization stated in this article does not
however prove the issue central to these cases i.e. whether the
miners at issue were overexposed to respirable dust, nor does it
support Thaxton's conclusion that the visible dust in these cases
contained high levels of respirable dust.
Indeed the article further detracts from Thaxton's
conclusions and the previous study relied upon by Thaxton (Gov.
Exh. No. 32) in that it corroborates that the rate of fall of the
dust particles studied was established in still air. The article
cautions that the studies are also based on an analysis of a
spherical quartz particle and that the velocity of the fall of a
particle also varies according to its density and shape. Since
the density and shape of any dust particles in these cases as
well as the velocity and direction in which the particles were
being projected, are unknown, the relevance to these cases of
studies relied upon by Thaxton involving spherical quartz
particles in still air has not been established.
"Transport of Respirable Dust from Overburden Drilling at Surface
Coal Mines" (Gov. Exh. No. 36)
This article is cited by Thaxton for the proposition that
"42% of the dust from drilling traveled a distance 28.96 meters
(95 feet)". The relevance of the study to the instant cases has
not been established. Indeed it is stated therein that "owing to
the extremely complicated nature of gas and dust transport via
ambient wind currents, the calculated values of R are presented
with the intention of merely describing the maximum values
obtained and the general trends of how R varies with distance".
It is also noted that during sampling in this study "a recording
wind anemometer was used to measure wind direction and velocity
in order to establish and maintain proper sampling locations
during the testing." In the cases at bar there were no such
controls. Finally, the calculation of respirable dust exposure
at varying distances still depends upon the amount of respirable
dust emanating at its source--something that has been the subject
of speculation but has not been established in the cases at bar.
"Fundamentals of Industrial Hygiene" (Gov. Exh. No. 33)
This text is cited by Thaxton for the proposition that
"respirable dust particles are visible in strong light and that
high concentrations of respirable dust particles may be perceived
as a haze or have the appearance of smoke". (Gov. Exh. No 26 p.
7). The cited text states as follows:
Most industrial particulates consist of particles that vary
widely in size; the small particles greatly outnumber the
larger ones. Consequently, when dust is noticeable in
the air around an operation, more invisible dust
particles than visible ones are probably present.
Thaxton opined that more respirable particles than
non-respirable particles are present in a drill dust cloud
because respirable particles i.e. those less than 10 microns in
diameter, are invisible. He was presumably relying upon the
summary conclusion in the above text that more invisible
particles than visible are "probably present" in noticeable dust.
The mere probability of a presence does not however meet the
standard of reliability needed to accord credibility and weight
to scientific evidence.
Even more problematic however is the evidence that not all
invisible particles are small enough to fall within the
"respirable" range. Thaxton appears to have ignored this
critical fact. The various charts and discussion contained in
the studies establishes that non-respirable particles ranging in
size from 10 to 50 microns are not, and particles between 50 and
100 microns might not be, visible to the human eye. Government
Exhibit No. 32 Figure 1.1 indicates by a dashed line that it is
"doubtful" whether particles between 10 and 100 microns are
visible to the human eye. It is also indicated in the instant
text, Government Exhibit No. 33 at page 179, that a person with
normal eyesight can detect individual dust particles as small as
50 microns in diameter.
It is further stated as follows:
(s)maller airborne particles can be detected individually by
the naked eye only when strong light is reflected from them.
Particulates of respirable size (usually considered to be
below 5 microns) cannot be seen as individual particles
without the aid of a microscope. However, high
concentrations of suspended small particles may be
perceived as a haze or have the appearance of smoke.
(Gov. Exh. 33 and Fig. 8-2).
While Thaxton concluded from this language that the dust
clouds at issue consisted primarily of respirable dust particles,
the charts and discussion in Government Exhibits 32 and 33
establish that non-respirable particles ranging in size from 10
to 50 microns come within the classification of "small particles"
that also may be perceived as haze or smoke.
The other studies also establish that non-respirable
particles ranging in size from 10 to 50 microns fall within the
classification of "aerosols" that Thaxton opined may be seen by
the naked eye, if present in sufficient concentrations.
According to Thaxton, the following language from the article
"Pulmonary Deposition and Retention of Inhaled Aerosols" (Gov.
Exh. No. 32), supports his conclusion that only aerosol particles
of respirable size would remain in dust clouds 20 to 40 feet away
from the highwall drills:
The term aerosol, comparable to hydrosol, refers to any
system of liquid droplets or solid particles dispersed
in air, of fine enough particle size, and consequent
low settling velocity, to possess considerable stability
as an aerial suspension. A 50 (micron) spherical
particle of unit density settles through still air at
a velocity of about 8 cm/sec or 16 ft/min. This is within
the approximate range of air movement in the so-called
"still air" of an ordinary closed room. Coarser particles,
therefore, have relatively little aerial stability,
and , indeed, the duration of an atmospheric
suspension of considerably smaller particles ([less than]
10-20 [microns]) is so brief that the upper size limit
of aerosols of practical interest is well below this size.
(Gov. Exh. No. 32 p. 7).
Thaxton's assertion that only particles less than 10 microns
in size could have been in aerial suspension at a distance of 20
to 40 feet from the drills is therefore clearly erroneous. The
above study demonstrates that aerosol particles of non-respirable
size (i.e., between 10 and 50 microns in diameter could be in
aerial suspension 16 feet to 20 feet from a drill and the
evidence does not establish that the dust clouds at issue
extended more than 15 feet to 20 feet from the drills.
As previously noted, Thaxton also failed to consider the
caveat in the studies that the settling rates were obtained in
"still air". Considering the windy conditions existing at the
subject surface mines, the relevance of these studies to the
cases herein has not been established. It is also noted that
there are contradictory conclusions in Government Exhibit 34 that
moving air keeps particles in suspension longer and in Government
Exhibit 33 that moving air causes particles to settle out faster.
"Quartz Dust Sources During Overburden Drilling at Surface Coal
Mines" (Gov. Exh. No. 35)
This study is cited by Thaxton for the statement that "dust
concentrations as high as 98.0 milligrams per cubic meter [were
found] at the drill shroud" studied (Government Exhibit No. 35).
Thaxton was unable however to establish the relevance of the
cited study to the facts at bar. Thaxton lacked specific
factual information regarding the studied conditions. For
example, although he believed that the drills in this study and
those at Hobet used the same drilling process, he did not know
that only one mine was associated with the study, the name or
location of the mine, the manufacturer of the drill, or the
specifics of the type of dust control system utilized by the
drill. In addition, he testified that, while the basic dust
control technology for highwall drills has remained unchanged,
filter, filter media, and motors had improved greatly since the
study was done in 1983 and 1984.
However, even assuming, arguendo, that the conditions in
this study and those cited were comparable, the study does
not support Thaxton's conclusion that the dust clouds at
issue had respirable coal mine dust concentrations of 10
to 100 mg/m3. Thaxton concluded that dust clouds can
contain up to 100 mg/m3 of respirable dust based upon a
RAM (Realtime Air Monitor) reading of 98 mg/m3 obtained
at location where the highwall drill shroud meets the
ground. This reading however constitutes only one reading
out of approximately 178 contained in that exhibit and is
the only reading of 98 mg/m3 included in the report. Thaxton's
focus on the 98 mg/m3 reading not only ignores other ground
shroud readings that were significantly lower than 98 mg/m3, but
minimizes the researchers' findings that the time-weighted
averages for the ground shroud readings were well below 10 mg/m3,
and completely ignores the more relevant readings, for purposes
of these cases, obtained at the cab.
In the study, seven RAM readings for respirable dust were
taken on the ground next to the drill shroud. These RAM results
are listed in Table V. Five of the readings obtained were
greater than 25.5 mg/m3 over a test duration of 18 to 32 minutes,
with cumulative test values ranging from 3.2 to 6.8 mg/m3 . One
reading of 24.4 mg/m3, over a test duration of 40 minutes with a
cumulative test value of 3.2 mg/m3, was reported; while one
reading of 98.0 over a test duration of 27 minutes, with a
cumulative test value of 7.0 mg/m3 was reported. According to
Thaxton, the readings listed as "greater than 25.5" probably did
not exceed 98 mg/m3. Although Thaxton initially disagreed that
the "cumulative test" values constituted time weighted averages
("TWAs"), in the following exchange he admitted that the values
constituted TWA's comparable to those utilized to determine
compliance with MSHA's respirable dust standard:
Q. The MSHA standard is 2 milligrams over an 8-hour
shift exposure?
A. Or less.
Q. Or less?
A. It is full shift, whichever is less. Surface mines
typically, in the past, ran seven and a quarter hours.
Seven and a quarter hours would be plugged into the
calculation.
Q. You are measuring the miner's exposure over the
entire working shift, correct?
A. Yes.
Q. That recognizes the fact, Mr. Thaxton, you are going
to have ups and downs, highs and lows, in that 8-hour
shift; does it not?
A. Yes, it does.
Q. When I say ups and downs, I mean varying readings of
respirable dust over the shift; is that correct?
A. That's correct.
Q. In this case, even when you went to the shroud and
measured a 98, isn't it true that for that 27-minute
period the average was 7.0?
A. That's correct.
Thaxton admitted that the one reading of 98 mg/m3 on
Table V was the basis for his conclusion that respirable dust
concentrations in a dust cloud can be as high as 100 mg/m3,
even though the single entry on Table V was the only reading
in the entire report that approached the 100 mg/m3 figure.
Thaxton also admitted in the following colloquy that no study
produced by the Secretary supports his contention that
sampling results obtained on the ground at the shroud are
representative of exposures for miners whose noses are not
at ground level:
Q. Can you show me any study in all this literature that
would prove that a miner who is standing within five
feet of a drill is going to be breathing the exact same
respirable dust content as a pump or a measuring
device that's on the ground by the shroud?
A. I cannot point you to a study or a result, no.
The study also included the results of sampling
conducted inside the drill cab, and outside the cab near the
cab door. (Gov. Exh. No. 35, Table III). The time-weighted
averages for the samples inside the cab was 1.65 mg/m3, while
the TWA for the readings outside the cab near the door was 1.43
mg/m3. The researchers also noted that since the cab door
"was normally open during the sampling period, almost the same
amount of respirable dust and quartz dust was measured inside
and outside the cab." (Gov. Exh. No. 35 at 366). Despite
these findings, which indicated that significantly lower
respirable dust readings exist at locations above ground
level away from the shroud, Thaxton assumed that all personnel
working in the vicinity of a highwall drill are exposed to
respirable dust levels exceeding 10 mg/m3.
Thaxton testified that he disregarded the lower
sampling results obtained by the researchers and reported
throughout Government Exhibit 35, because his own undocumented
fieldwork substantiated the readings of 10 to 100 mg/m3
reported in Government Exhibit 35, but did not substantiate
the lower readings. No determination can be made as to
whether Thaxton's fieldwork, collected between 1976 and
1992, supports his use of the 10 to 100 mg/m3 figure,
since he was unable to produce any of the field data.
Neither the reliability nor relevancy of his field data can
therefore be established. Thaxton's treatment of the lower
readings obtained by the researchers, and the reliability
of his conclusion that all dust clouds contain respirable
dust levels of 10 to 100 mg/m3, is also further suspect
because Thaxton had no field data on any of the
drills at issue, and thus had no written field data of his
own to contradict that gathered on April 21, 1997, by MSHA
Inspector John Workman regarding two Hobet drills. Workman's
samples found no unhealthy levels of silica in samples taken
at a Hobet highwall drill that was generating visible
airborne dust; however, samples taken at a Hobet drill
that was not generating visible airborne dust indicated
the existence of high levels of silica.
Under all the circumstances it is clear that Thaxton
misconstrued the findings of Government Exhibit No. 35 to
conclude that all dust clouds contain 10 to 100 mg/m3 of
respirable dust/silica. Thaxton's testimony established
that his opinion rests upon at least two erroneous
assumptions; namely that respirable dust/silica readings
obtained on the ground at the shroud are comparable to
those that would be found in areas where driller
operators, driller helpers, and blasters work and that
he could ignore the majority of sampling results contained
in Government Exhibit No. 35 that fell well below the
98 mg/m3 figure he relied upon in formulating his
opinion.
Thaxton's Field Work
Thaxton also relied upon certain field work apparently
performed between 1976 and 1992 to conclude that visible
clouds of dust contain high levels of respirable dust. He
concluded in his direct examination that "without exception,
every time that I have sampled an occupation exposed to
visible dust from drilling, I have found high levels of
respirable dust." (Government Exhibit 26 page 8). In
addition, he testified that he disregarded the lower
sampling results obtained by the research and reported throughout
Government Exhibit 35 because his own fieldwork substantiated
the readings of 10 to 100 milligrams per cubic meter
reported in Government Exhibit 35 and that such fieldwork
did not substantiate the lower readings. Since there is
no documentation of Thaxton's fieldwork however there
is no basis to test the methodology and, therefore, the
reliability of his results. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Indeed there
is no way to determine whether this fieldwork was conducted
with any scientific rigor and there was no opportunity
to subject this work to effective cross examination.
Accordingly Thaxton's "fieldwork" cannot be given any
weight. See Secretary v. Keystone Mining Corp. et al.,
17 FMSHRC 1819 at 1845 November 1995), aff'd, Secretary
v. Keystone Mining Corp. et al., No. 95-1619 (D.C. Cir.
August 21, 1998).
Civil Penalty Assessments
In assessing a civil penalty under Section 110(i) of
the Act, consideration is to be given to the operator's
history of previous violations, the appropriateness of
the penalty to the size of its business, the effect on
the operator's ability to continue in
business, good faith abatement, negligence, and gravity.
Hobet is a large company (Gov. Exh. 22-25) and it is
undisputed that its ability to continue in business
would not be affected by a penalty as high as
that proposed by the Secretary. Hobet has a history of
drill dust related violations under the Act. (See Gov.
Exh. 18, 19, 20, 21). With the exception of Citation No.
4629641, which was not abated until a Section 104(b)
order was issued, the Secretary acknowledges
that all citations were abated in a good faith and timely
manner. As previously noted, the Secretary has failed
in sustaining her burden of proving any discrete health
hazard. Without such proof, the gravity of these
violations cannot be deemed serious.
In each of the citations at bar the Secretary has
alleged moderate negligence. Although she has not sought
to modify or amend those citations, she now claims in
her post-hearing brief that the violations resulted from
"higher" negligence. Upon my de novo review
I find that, indeed, the violations were the result of
significant negligence. It is indeed apparent from the
photographs, videotape, and testimony that the obvious
visible dust should have triggered closer examination
of the drills. The inspectors were able to
observe the dusty conditions from distances of more than 100
feet. It may reasonably be inferred, therefore, that
these conditions were also obvious to agents of the operator
and warranted closer examination of the dust control
devices on the cited drills.
More particularly, with respect to Citation No.
7152439, Thaxton opined that the faulty conditions of the
drill shroud had occurred before the shift in which the
citation was issued. He further testified that holes in
the dust hose which had been taped-over indicated that the
system had not been maintained over a long
period of time. He also concluded, from the undisputed
testimony of the drill operators that dust in the cab was
a constant problem, that there were recurring problems
with the drill dust collection system.
Driller helper Bias also testified that conditions
inside the cab of his drill were always dusty and that he
reported these conditions to management nearly every day for
four years. Driller operator Sanford Johnston testified
that the dusty conditions captured in the photographs of the
drill were typical of conditions at the mine. Johnston
testified that the cab was always dusty and that
he reported this condition on his pre-operational checklist.
This evidence supports a finding of significant
negligence. In reaching this conclusion I have not
disregarded the testimony of drill operator Johnston that
the cited defects could have occurred within the ten
minutes time that the drill had been operating that
day. However I can give such speculative testimony but
little weight.
Thaxton concluded, with respect to Citation No.
7159321, that the shroud had been torn at some point before
the drill had been moved to the hole it was drilling when
cited. He further concluded that the gap on the "sneezer"
side of the shroud had been present since the shroud
was installed. Thaxton's testimony in this regard
is not disputed. In addition, Hobet had previously been
cited for a violation of Section 72.620 on the same drill
and one of the same defects to the dust collection system
noted in that prior citation, i.e., the filter needing
replacement, was again cited in this case.
Within this framework of evidence I find that there was
significant operator negligence.
The Secretary had also previously issued a citation for
a violation of Section 72.620 on the same drill as cited in
Citation No. 7159340. Drill operator Edgar Chambers testified
that it might take up to a week before maintenance corrected
problems with the dust collection system on his drill.
He recalled that on one occasion before the inspector's visit,
when one of the blasters had asked him when he was going
to get the dust problem fixed, he answered, " I
don't know. I said, I wrote it and wrote it and wrote it.
I get tired writing it to write it up, they don't do nothing
about it." In addition, the men working on the benchline
informed the inspector that they had been working in dusty
conditions for two weeks.
Thaxton testified that the number of defects to the
drill noted in Citation No. 4629641 led him to conclude
that the drill had been out of compliance for some time.
He found it highly unlikely that all of the defects
occurred recently or immediately before the
inspectors arrived. Drill operator Curtis Lester testified
that when he called for a mechanic to fix the dust collector,
"a lot of time they would be busy working on other equipment
at the ship and the equipment foreman couldn't release their
mechanics to send them out at that time." "Sometimes it
would be a while before they'd respond, get there to fix
the machine." In addition, only one month before
the issuance of the instant citation, the Secretary had
issued a citation for a violation of the same regulation
on the same drill. Finally, it is noted that the drill
charged in Citation No. 7152206, had been operating for
at least two hours at the time it was charged.
Within the above framework of evidence and in
consideration of the settlement presented at hearing I assess
the civil penalties set forth in the Order below.
ORDER
Citation No. 7152240 has been VACATED by unilateral
action of the Secretary. Citation Nos. 4629642 and 7152318
are MODIFIED and Hobet Mining Incorporated is directed to
pay civil penalties of $720.00 for the above violations
within 30 days of the date of this decision.
The "significant and substantial" findings as to all
remaining citations are VACATED, the citations are AFFIRMED
and Hobet Mining Incorporated is hereby directed to pay
the following civil penalties within 30 days of the date
of this decision: Citation No. 7152439 - $600; Citation
No. 7159321 - $600; Citation No. 7159340 - $600;
Citation No. 4629641 - $1,000; Citation No. 7152206 - $600.
Gary Melick
Administrative Law Judge
Distribution:
Caryl L. Casden, Esq., and Gretchen McMullen, Esq., Office
of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)
David J. Hardy, Esq., and John T. Bonham, II, Esq., Jackson
& Kelly, P.O. Box 553, Charleston, WV 25322 (Certified Mail)
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