Secretary of Labor v. American Tripoli

Plain-English summary

American Tripoli asked for expedited review of three silica-related citations and two withdrawal orders that stopped production at its mill. The citations alleged excessive respirable silica exposure, an inadequate respiratory-protection program, and a failure to conduct necessary dust surveys. The Secretary opposed expedited treatment and argued that the company had caused delay and had received multiple extensions. The judge found that the withdrawal orders' continuing effect on production made prompt review appropriate and outweighed further postponement. He granted expedited proceedings but did not decide the citations, orders, or pending discovery dispute.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.5001(a), 56.5005, and 56.5002
• Outcome: American Tripoli's motion for an expedited hearing was granted.
• Key point: Ongoing withdrawal orders that stopped production justified prompt adjudication of the related silica citations.

Full text (FMSHRC public release)

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

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SECRETARY OF LABOR ## MINE SAFETY AND HEALTHADMINISTRATION (MSHA), Petitioner
v.

AMERICAN TRIPOLI,Respondent |

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|
CIVIL PENALTY PROCEEDING
Docket No. CENT 2023-0196 A.C. No. 23-00504-577169
Mine: MOSenecaMfr LLC dba American tr
|

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.

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 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).

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 continuous-flow 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 shift-weighted 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 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 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.

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 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

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

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 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.

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.

/s/
William B. Moran

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 ([email protected])

Kristin R.B. White, Fisher & Phillips, LLP, 1125 17th Street,
Suite 2400, Denver, CO 80202 ([email protected])

Arthur M. Wolfson, Fisher & Phillips, LLP, Six PPG Place, Suite
830, Pittsburgh, PA 15222 ([email protected])

Russell Tidaback, American Tripoli, 2701 East Grauwyler Rd., Bldg. 1, Dept. 1008, Irving, TX 75061, ([email protected])

[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.”

[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 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.

[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-virginia-be722098fcf2a20b16bd73ca12c06c7e.

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-respiratory-protection

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