"Single Shift Sampling of Respirable Dust - The Saga Continues," Crowell & Moring Mining Law Monitor


Author: Edward M. Green.

Despite the admonitions of the Federal Mine Safety and Health Commission, the next shoe has been dropped by MSHA in its ongoing quest to improperly use respirable dust samples taken over a single shift to demonstrate whether or not there has been compliance with the respirable dust standard mandated by the Federal Mine Safety and Health Act of 1977 (MSH Act).

As we discussed in the last issue of the C&M Mining Law Monitor, on January 4, the Commission found in the Keystone case, that citations for failure to comply with the standard, based on respirable dust samples taken over a single shift, were invalid because relying on such samples was contrary to MSHA's regulatory scheme as set out in 30 CFR Par 70. These regulations require sampling over multiple shifts. The Commission told MSHA that if it wanted to use single shift measurements, the agency could only do so after a notice and comment rulemaking. MSHA's most recent action falls far short of that mark.

On February 18, two startling notices appeared in the Federal Register, 59 Fed. Reg. 8356-8358. The first notice announced MSHA's intention to use single, full-shift respirable dust measurements in addition to the average of multiple, full-shift sample results of the respirable dust standard set out in § 202(b)(2) of the MSH Act. Second, a joint notice by the Department of Labor and the Department of Health and Human Services purports to find that the average concentration of respirable dust to which each miner in the active workings of a coal mine is exposed can be measured in accordance with § 202(f)(2) of the MSH Act.

As we shall briefly explore below, neither of these notices meet the procedural requirements of the MSH Act, and, are, therefore, fatally flawed.

Why? As pointed out by the Keystone decision, § 201(a) of the MSH Act states:

The provisions of sections 202 through 206 of this title . . . shall be interim mandatory health standards applicable to all underground coal mines until superseded in whole or in part by improved health standards promulgated . . . under the provisions of section 101 of this Act. (Emphasis added)

Thus, by operation of law, the respirable dust standard set out in § 202(b)(2) and the finding provisions of § 202(f)(2) are interim health standards which can only be superseded by improved standards promulgated under § 101.

Section 101 contains two key requirements which MSHA has once again ignored.

First, § 101(a) requires a notice and comment rulemaking in accord with the applicable provisions of the Administrative Procedure Act (APA). Second, § 101(a)(9) specifically demands that no mandatory health standard promulgated under § 101 shall reduce the protection afforded miners by an existing mandatory health or safety standard.

The two notices in question accommodate neither of these statutory obligations. They are not APA-type rulemakings. Indeed, this is conceded by MSHA, even though the agency solicits public comment. Nor does either notice even mention the sort of finding mandated by § 101(a)(8).

Once again, MSHA has acted in a manner contrary to law in its rush to utilize single shift sampling. This unseemly and illogical short citing of the procedural requirements of the MSH Act is at best incomprehensible, and at worst disingenuous. If MSHA's justifications for the use of single shift samplings are valid, then why is the agency dragging its heels in complying with the due process mandates of the very Act it is charged with implementing?

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922