For Additional Information:
John Grasser (202) 463-2651
Karen Batra (202) 463-2651

FOR IMMEDIATE RELEASE
April 20, 2000

NMA LEADS INDUSTRY GROUPS AGAINST USE OF 'SINGLE SHIFT' COAL DUST SAMPLES

Washington--The National Mining Association and 10 state coal mining associations have filed a brief before the Mine Safety and Health Review Commission arguing against the use of "single shift" sampling as a method of enforcing federal coal dust standards in underground coal mines.

The case, Excel Mining, involves the issue of whether Mine Safety and Health Administration (MSHA) inspectors can determine compliance with the respirable coal mine dust standard by taking five samples at different locations within a mine and averaging them together, in lieu of taking five samples from the same location over five consecutive production shifts.

The judge in the Excel Mining case ruled that MSHA could not do so in light of the government’s 1971 finding that single shift samples do not accurately reflect miners’ exposure to respirable dust, and that it made no difference if MSHA took one or several single shift samples. MSHA appealed to the full Review Commission.

Arguing that the Commission should affirm the judge, NMA and the other associations contend that the Commission’s prior decision in Keystone Mining governs this case. In Keystone the Commission held that MSHA could not determine compliance with the dust standards through single-shift samples without first going through notice and comment rulemaking to rescind the 1971 finding. When MSHA failed to comply with the rulemaking provisions of the Mine Act in seeking to rescind the 1971 finding, NMA and the Alabama Coal Association successfully challenged that action in the 11th Circuit Court of Appeals. (MSHA’s revised proposal to rescind the 1971 finding is apparently being reviewed by OMB prior to issuance.)

The associations argue that MSHA is precluded from using single shift samples for compliance purposes, no matter what the number, until it issues a final rule on this matter. They also contend that 1971 finding is correct despite MSHA’s efforts to circumvent it, and that the variability inherent in single shift samples prevents MSHA from using them for compliance purposes.