Consolidation Coal Company v. Federal Mine Safety and Health Review Commission, Coal Employment Project, United Mine Workers of America, Intervenors

824 F.2d 1071, 263 U.S. App. D.C. 91, 1987 CCH OSHD 27,986, 1987 U.S. App. LEXIS 9953

Opinions

Opinion for the Court filed by Chief Judge WALD.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge D.H. GINSBURG.

WALD, Chief Judge:

Petitioner Consolidation Coal Company (“Consol”) was issued a citation under § 104(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a). The citation alleged that Consol had violated 30 C.F.R. § 70.100, which sets forth respirable dust standards for coal mines, and that the violation was “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1), (e).¹ Consol conceded that it had violated the standard, but contested the citation on the ground that the violation should not have been designated as significant and substantial. Following an evidentiary hearing, an Administrative Law Judge (“AU”) affirmed the contested citation and upheld the designation of the violation as significant and substantial. Consolidation Coal Co., 5 F.M.S.H.R.C. 378 (1983). The AU’s decision was affirmed by the Federal Mine Safety and Health Review Commission (“Commission”), which concluded that “when the Secretary proves that a violation of 30 C.F.R. § 70.100(a) ... has occurred, a presumption that the violation is a significant and substantial violation is appropriate.” Consolidation Coal Co., 8 F.M.S.H.R.C. 890, 899 (1986). Consol then filed a petition for review in this court. Consol argues that the presumption that any violation of the respirable dust standard is significant and substantial conflicts with the statutory enforcement scheme and lacks a rational basis. In addition, Consol contends that the sampling techniques used to measure concentrations of respirable dust are so inaccurate that they cannot serve as the basis of a determination that Consol’s violation of the respirable dust standard was significant and substantial. We conclude that the Commission properly affirmed the designation of Consol’s violation of the respirable dust standard as significant and substantial.

I. Background

A. Statutory and Regulatory Framework

Until 1977, coal mine health and safety were regulated under the Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”), 30 U.S.C. § 801 et seq. The Federal Mine Safety and Health Act of 1977 (“Mine Act”) was created by the enactment of the Federal Mine Safety and Health Amendments Act, Pub. L. No. 95-164, 91 Stat. 1290, which amended the Coal Act and placed all forms of mining under a single regulatory scheme.

The Mine Act authorizes the Secretary of Labor (“Secretary”) to promulgate mandatory health and safety standards, 30 U.S.C. § 811, and requires frequent inspections of mines to determine whether those standards have been complied with. 30 U.S.C. § 813. The enforcement provisions of the Mine Act are set forth in § 104 of the Act, 30 U.S.C. § 814. Section 104(a) provides that an inspector who determines that a mine operator has violated a mandatory standard “shall, with reasonable promptness, issue a citation to the operator.” 30 U.S.C. § 814(a). The citation must “fix a reasonable time for the abatement of the violation.” Id. For each violation, the mine operator is assessed a civil penalty of not more than $10,000 by the Secretary. 30 U.S.C. § 820(a). In addition, if a violation is not abated within the allotted time, the Secretary must issue a withdrawal order requiring the removal of all miners from the area of the mine affected by the violation until the violation is abated. 30 U.S.C. § 814(b).

Sections 104(d) and 104(e) provide for more severe sanctions to be applied when an operator commits a series of violations which meet certain criteria. Section 104(d) is triggered when an inspector finds that a violation is significant and substantial and “caused by an unwarrantable failure” of the mine operator to comply with a mandatory health or safety standard. 30 U.S.C. § 814(d)(1).² A 90-day probationary period begins when a citation containing these findings is issued. If another unwarrantable violation occurs during the probationary period, the Secretary is required to issue an immediate withdrawal order, without first giving the mine operator an opportunity to abate the violation. Id. Once a withdrawal order has been issued under § 104(d)(1), additional withdrawal orders must be issued for subsequent unwarrantable violations until an inspection of the mine discloses no unwarrantable violations. 30 U.S.C. § 814(d)(2).

Section 104(e) imposes a similar 90-day probationary period, beginning when the Secretary notifies an operator of the existence of a pattern of significant and substantial violations. An immediate withdrawal order must be issued if another significant and substantial violation is found within the probationary period. 30 U.S.C. § 814(e)(1). After such a withdrawal order has been issued, the pattern can be terminated only by an inspection of the entire mine that reveals no significant and substantial violations. 30 U.S.C. § 814(e)(3).

The mandatory standard violated by Con-sol is set forth in 30 C.F.R. § 70.100(a), which requires mine operators to “continuously maintain the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings of each mine is exposed at or below 2.0 milligrams of respira-ble dust per cubic meter [mg/m³] of air.” This standard adopts the statutory requirement of 30 U.S.C. § 842(b)(2), which was enacted in 1969 as part of the Coal Act. One of the primary purposes of the Coal Act was the prevention of respiratory diseases, including coal workers’ pneumoconi-osis (“black lung disease”), chronic bronchitis, and emphysema caused by exposure to respirable coal mine dust. See 30 U.S.C. § 841(b).

Coal mine operators are required to take “accurate samples of the amount of respirable dust in the mine atmosphere to which each miner ... is exposed” and to submit those samples to the Secretary for analysis. 30 U.S.C. § 842(a). In 1980, the Mine Safety and Health Administration (“MSHA”) promulgated revised regulations governing dust sampling procedures. See 46 Fed. Reg. 23,990 (1980). The regulations require mine operators to collect and submit two types of respirable dust samples. Id. ; 30 C.F.R. §§ 70.207, 70.208. The first type, “designated area samples,” are taken at particular locations in the mine at which dust is likely to be generated. This case involved the second type, “designated occupation samples,” which are taken for each “mechanized mining unit” in the mine.³ One occupation on each mechanized mining unit is designated as most hazardous in terms of exposure to respira-ble dust. The samples are collected by having the miner who performs the designated occupation wear the sampling device or by placing the sampling device near that miner’s normal work position. The regulations require mine operators to collect and submit five samples during each bimonthly period for each mechanized mining unit; the dust concentrations of the five samples are averaged to determine if the respirable dust standard has been violated.

B. Prior Proceedings In This Case

Pursuant to the designated occupation sampling regulations, Consol collected five respirable dust samples in January, 1982 for the continuous miner occupation in section 026-0 of the Blacksville No. 1 Mine in Monongalia County, West Virginia.⁴ MSHA’s analysis of the samples revealed respirable dust concentrations of 8.1, 6.3, 5.1, 0.7, and 0.4 mg/m⁸.⁵ Thus, the average concentration for the five samples was 4.1 mg/m³.

Based on these test results, on February 16, 1982, an MSHA inspector issued a citation under § 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging that Consol had violated the respirable dust standard, 30 C.F.R. § 70.100(a), and that the violation was significant and substantial. Consol was able to abate the violation without making any changes in ventilation or mining procedures. According to Consol, “[t]he only act necessary to achieve abatement was to ‘babysit’ the sampling device to ensure its reliable functioning.” Brief of Consolidation Coal Company at 8-9. The citation was terminated on March 5, after Consol submitted five samples which showed respirable dust concentrations of 0.2, 0.2, 0.5, 0.7, and 0.8 mg/m³.

The designation of Consol’s violation as significant and substantial was consistent with MSHA policy guidelines adopted in response to the Commission’s decision in Cement Division, National Gypsum Co., 3 F.M.S.H.R.C. 822 (1981). The Commission held in National Gypsum, a case involving violations of mandatory safety standards, that a violation is properly designated as significant and substantial “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Id. at 825. In a subsequent decision, Mathies Coal Co., the Commission expanded on its decision in National Gypsum, holding that

to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard — that is, a measure of danger to safety — contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

6 F.M.S.H.R.C. 1, 3-4 (1984) (footnote omitted). The Commission emphasized that Mathies involved a violation of a mandatory safety standard and noted that the question of the application of National Gypsum to a mandatory health standard was pending before the Commission in this case. Id. at 3 n. 4.

After the Commission’s decision in National Gypsum, the MSHA adopted enforcement guidelines implementing that decision. See Guidelines for Determining Whether a Violation is “Significant and Substantial,” Addendum C to Brief for the Secretary of Labor. With respect to violations of mandatory health standards, the guidelines stated:

MSHA is currently reviewing the application of these guidelines to violations involving mandatory health standards. Pending completion of this review, violations involving mandatory health standards which limit exposure to or require protection from harmful airborne contaminants, toxic substances or harmful physical agents should be designated as “significant and substantial.”

Id. at 3.

Consol contested the citation, admitting that it had violated the respirable dust standard, but arguing that the violation should not have been designated as significant and substantial. Following an eviden-tiary hearing, a Commission AU upheld the designation of the violation as significant and substantial. Consolidation Coal Co., 5 F.M.S.H.R.C. 378 (1983). The AU found, based on the medical evidence presented, that “the exposure covered by the dust samples which resulted in the citation herein in itself would neither cause nor significantly contribute to chronic bronchitis ... or coal workers pneumoconiosis.” Id. at 389 (emphasis in original). Nevertheless, the AU referred to each incident of exposure to excessive levels of respirable dust as “a drop in the bucket” and concluded that “every drop in the bucket, every two month sampling period where excessive dust is present, significantly and substantially contributes to a health hazard— the hazard of contracting chronic bronchitis or coal workers’ pneumoconiosis.” Id. at 390. The AU found that there was no evidence that the violation was caused by negligence on the part of Consol. He imposed a penalty of $150. Id.

The Commission affirmed the AU’s decision, holding that “some departure” from the National Gypsum standard was justified in this case “because of fundamental differences between a typical safety hazard and the respirable dust exposure-related health hazard at issue.” Consolidation Coal Co., 6 F.M.S.H.R.C. 890, 895 (1986). Adapting the Mathies Coal Co. formula to the context of a health standard violation, the Commission set out the elements necessary for a finding that such a violation is significant and substantial:

(1) the underlying violation of a 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.

Id. at 897. In applying this test to the violation at issue, the Commission had no trouble in determining that the first, second, and fourth elements were met, but it acknowledged that “[t]he third element ... presents a more difficult conceptual issue.” Id. at 898. The Commission recognized that “proof of a single incident of overexposure does not, in and of itself, conclusively establish a reasonable likelihood that respira[tory] disease will result.” Id. (emphasis in original). It also noted, however, that the harmful effects of overexposure to respirable dust are cumulative and do not produce any symptoms until serious harm has already occurred, so that it is impossible to predict “the precise point at which the development of chronic bronchitis or pneumoconiosis will occur or is reasonably likely to occur.” Id. The Commission considered the text and legislative history of the Mine Act and concluded that the Act embodied “an unambiguous legislative declaration in favor of preventing any disability from pneumoconiosis or any other occupation-related disease.” Id. at 897. Given the insidiousness and unpredictability of the onset of respiratory disease, coupled with the fact that prevention of such disease was one of the fundamental purposes of the Mine Act, the Commission concluded that once a violation of the respirable dust standard has been proven, “a presumption arises that the third element of the signifi cant and substantial test — a reasonable likelihood that the health hazard contributed to will result in an illness — has been established.” Id. at 899. The Commission went on to hold that, because the four elements of the test would be met in any case in which a violation of the respirable dust standard was shown to exist, “rather than requiring the Secretary to prove anew all four elements in each case, we hold that when the Secretary proves that a violation of 30 C.F.R. § 70.100(a) ... has occurred, a presumption that the violation is a significant and substantial violation is appropriate.” Id. A mine operator could rebut this presumption, the Commission stated, by showing that miners were not actually exposed to the excessive dust concentration— through the use of protective equipment, for example.

The Commission also rejected Consol’s argument that MSHA’s dust sampling procedures were not sufficiently accurate to support a finding that a violation of the respirable dust standard was significant and substantial. The Commission noted that “all sampling methods fall short of perfection and are designed to provide best estimates of actual conditions.” Id. at 900. It concluded that the sampling procedures adopted by MSHA, if properly applied by the mine operator, would produce results which were “reasonably representative of the mine atmosphere.” Id. at 901. Further, Consol had failed to present any persuasive evidence that the accuracy of the results was compromised in its case. Id. at 902.

II. Analysis

A. Ripeness

Before turning to the merits of this appeal, we consider the threshold issue of whether the Commission’s designation of Consol’s violation as significant and substantial is ripe for review. We do so not at the request of either the Secretary or the petitioner, but because our dissenting colleague has sua sponte raised the issue. At first glance, it is hard to fathom why the question of ripeness arises in this case at all. It is undisputed that the challenged policy, under which the Commission presumes that the statutory “significant and substantial” designation is appropriate for any violation of the respirable dust standard, has been squarely applied to Consol. There was nothing indefinite or conditional about the Commission’s finding that Con-sol’s violation was significant and substantial. Indeed, we have difficulty in seeing this as an appropriate case for a ripeness analysis at all, but feel compelled to go through the exercise because of the dissent’s extensive argument that we should not reach the merits of Consol’s challenge at all.

The ripeness inquiry requires us to consider “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In applying the Abbott Laboratories test, the court must weigh the “interests of the challenging parties in obtaining a prompt resolution of their dispute” against “any institutional interests that either the court or the agency may have for postponing review.” State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). Institutional interests in the deferral of review may be outweighed if postponing review will impose a hardship on those affected by the agency’s action which is “immediate, direct, and significant.” State Farm, 802 F.2d at 480; see also Ciba-Geigy Corp. v. United States E.P.A., 801 F.2d 430, 439 (D.C.Cir.1986).

The dissent does not appear to dispute that Consol has demonstrated sufficient injury resulting from the designation of its violation as significant and substantial to satisfy the Article III “case or controversy” requirement.⁶ In § 104 of the Mine Act, 30 U.S.C. § 814, Congress established a detailed scheme for enforcement of mine health and safety standards promulgated by the Secretary of Labor. That statutory scheme specifically provided for findings by the Secretary that certain violations of health and safety standards were significant and substantial. 30 U.S.C. § 814(d), (e). Pursuant to that statutory authorization, the Secretary designates violations as significant and substantial in citations issued under § 104(a). Consolidation Coal Co., 6 F.M.S.H.R.C. 189, 191-92 (1984). Designation of violations as significant and substantial at the initial § 104(a) citation stage is necessary if the more severe sanctions available under § 104(e) are ever to be applied. If there were no procedure for initially labeling individual violations as significant and substantial, the Secretary could never find that a “pattern” of such violations existed, and § 104(e) sanctions could not be brought into play.

The agency action challenged here was the application of the statutory “significant and substantial” designation to a conceded violation of the respirable dust standard. Consol was directly injured by the designation of its violation as significant and substantial, over and above the injury which resulted from its having been deemed a violator. That designation not only increased the amount of the civil penalty assessed against Consol for this violation, it also became a part of Consol’s permanent record, thereby exposing Consol to more severe sanctions for later violations. Under the law of this circuit, it is quite clear that the application of the significant and substantial designation to Consol’s violation supplied the “ ‘modicum of injury’ necessary to support jurisdiction.” Meredith Corp. v. FCC, 809 F.2d 863, 868 (D.C. Cir.1987) (quoting Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1006 (D.C.Cir.1976)).

Section 110 of the Mine Act, 30 U.S.C. § 820, provides that a civil penalty of not more than $10,000 shall be assessed for each violation of a mandatory health or safety standard. Congress has directed the Commission to consider several factors in assessing such penalties, one of which is “the gravity of the violation.” 30 U.S.C. § 820(i); see also 30 C.F.R. § 100.3(e). In this case, the Secretary simultaneously determined that Consol’s violation was serious enough to be designated as significant and substantial and recommended a penalty of $140.⁷ Before the Commission, Con-sol argued that its violation of the respira-ble dust standard was not properly designated as significant and substantial. It seems highly implausible that the Commission could have agreed with Consol that its violation should not have been labeled as significant and substantial, and nevertheless have determined that the penalty proposed by the Secretary, based on the gravity of the offense, was an appropriate one.

The dissent points out that the Secretary has stated, in the context of defending the use of the significant and substantial designation for violations of mandatory health standards, that “[ejven if it were to be judicially determined that the statutory significant and substantial finding requires a higher degree of gravity than that currently utilized, that finding would not necessarily have any effect on MSHA’s gravity evaluation for civil penalty purposes.” Brief of the Secretary of Labor at 32 n. 16 (emphasis added). The way in which the Secretary has actually exercised his discretion, however, causes us to be skeptical about that statement as supporting the dissent’s claim that Consol suffered no injury with respect to the penalty assessed as a result of the significant and substantial finding. MSHA regulations set up a special category of civil penalty — the “single penalty assessment” — under which a penalty of $20 may be imposed “where the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time set by the inspector.” 30 C.F.R. § 100.4. The Commission has defined significant and substantial violations as those violations for which “there exists a reasonable likelihood that the haz ard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum Co., 3 F.M.S.H.R.C. 822, 825 (1981); see also Mathies Coal Co., 6 F.M.S.H.R.C. 1, 3-4 (1984); Consolidation Coal Co., 6 F.M.S. H.R.C. 890, 897 (1986). A violation which has been designated as significant and substantial is therefore ineligible for assessment of a single penalty of $20 under 30 C.F.R. § 100.4, and the Secretary has interpreted the regulation to preclude the assessment of the $20 minimum penalty for any violation that has been so designated. See Brief for the Secretary of Labor at 32 n. 16 (“the Secretary has ... determined that violations that are serious enough to be designated significant and substantial are serious enough not to be eligible for MSHA’s $20 minimum penalty.”) On the other hand, MSHA apparently routinely applies the $20 penalty to violations that are not designated as significant and substantial. Consol’s counsel noted at oral argument that, had the violation at issue not been a significant and substantial one, the penalty “would normally have been $20.” We believe that the obvious connection between the significant and substantial finding and Consol’s ineligibility for a smaller fine is a cognizable injury under the Act.

The designation of Consol’s violation as significant and substantial injured Consol in another way as well. The fact that a particular violation has been deemed to be significant and substantial becomes part of a mine operator’s record and may be used against the mine operator in the determination of civil penalties for subsequent violations. One of the statutory factors the Commission is directed to consider in assessing civil penalties is the “operator’s history of previous violations.” 30 U.S.C. § 820(i). In applying this statutory directive, MSHA has concluded that “violations which receive a single penalty assessment under § 100.4 and are paid in a timely manner will not be included in the computation” of previous violations. 30 C.F.R. § 100.3(c). Thus, violations that are labeled as significant and substantial figure prominently in the calculation of penalties for subsequent violations, while those violations which fall within the category for which significant and substantial violations are ineligible are “erased” from the mine operator’s record. A finding that a violation is significant and substantial may also ultimately lead to the imposition of sanctions under § 104(e), 30 U.S.C. § 814(e), which provides for sanctions to be imposed on a mine operator after he is notified that “a pattern of [significant and substantial] violations” exists.

Our conclusion that Consol has demonstrated sufficient injury to satisfy the Article III “case or controversy” requirement is bolstered by this court’s recent decision in Meredith Corp. v. FCC, 809 F.2d 863 (D.C.Cir.1987). In Meredith, the court held that the petitioner had standing to challenge the Federal Communications Commission’s determination that its television station had violated the fairness doctrine, even though the Commission found that Meredith had subsequently acted in good faith and therefore no remedial action need be taken against it. Id. at 868-69. The court specifically rejected the FCC’s argument that “[a]ny future adverse impact ... is too speculative to warrant review at this time,” citing Straus Communications, Inc. v. FCC, 530 F.2d 1001 (D.C.Cir.1976), in which the court found that the degree of injury necessary to support jurisdiction existed “because the finding of a violation ... becomes a permanent part of the [violator’s] record, which is enough of an injury in the context of a statute that provides harsher penalties for repeated violations.” Meredith, 809 F.2d at 868. Here, the determination that Consol had committed a significant and substantial violation became part of Consol’s record before the agency and had potential negative consequences for Consol beyond the mere finding of a violation.

We now turn to the issue of whether Consol’s challenge is ripe for review under the two-part test set forth in Abbott Laboratories. The “fitness for review” prong of the Abbott Laboratories test requires the court to consider two types of institutional interests in determining whether a particular challenge is fit for review. The agency has an interest in thinking through its policy choices and completing its decisionmaking process before its decision is subjected to judicial review. Even when the agency’s decision-making process is complete, the court has an independent interest in postponing review until the agency’s decision has actually been applied to the party seeking review, so that the issues are clearly presented in a fully developed factual context.

All of the factors traditionally considered by courts in determining whether the “fitness for review” prong of the Abbott Laboratories test has been met point in favor of immediate review of Consol’s claim. The Commission’s policy with respect to the designation of respirable dust violations as significant and substantial has been fully developed in final form and unconditionally applied to Consol, so that our review poses no danger of interrupting the agency’s decisionmaking process. See Eagle-Picker, 759 F.2d at 913 (“the principal function of the ripeness doctrine is to aid a court in ascertaining whether it should stay its hand until agency policy has crystallized”). The Secretary has never suggested that the Commission’s application of its policy to Consol is not ripe for review, and in fact it appears that postponing review would be detrimental to the agency, leaving it uncertain as to its ability to impose the more serious sanctions available under §§ 104(d) and (e), which depend on initial findings that a violation is significant and substantial.⁸ This court also has an interest in considering Consol’s challenge now, rather than waiting until a “pattern” notice has been issued under § 104(e), as the dissent argues we should. The AU conducted a full evidentiary hearing and made detailed factual findings, so that the case is now presented to us in a concrete factual context. By the time a “pattern” notice is finally issued, the facts supporting the underlying violations will have grown stale. To attempt at that point to review what might be hundreds of prior findings that individual violations were significant and substantial, many of which might have been made years earlier, would be an impossible task.⁹

Under the ripeness analysis applied by this court to ordinary cases, we would be required to consider whether Consol has demonstrated sufficient hardship “to outweigh any institutional interests in the deferral of review.” Better Government Ass’n v. Department of State, 780 F.2d 86, 92 (D.C.Cir.1986); see State Farm, 802 F.2d at 479-80; Continental Air Lines v. Civil Aeronautics Board, 522 F.2d 107, 124-25 (D.C.Cir.1974) (en banc). The typical case in which the ripeness issue arises is one in which the challenged agency decision, although it may well be final, has not yet been applied to the party seeking review. In these cases, the interests of the agency and the court are often perceived to favor postponement of judicial consideration of a challenge to the agency’s action.¹⁰ Some extra showing of hardship to the party seeking review may be required to outweigh those interests and tip the balance in favor of immediate review. See Action Alliance, 789 F.2d at 940; New York Stock Exchange v. Bloom, 562 F.2d 736, 741 (D.C.Cir.1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978).

This case stands in sharp contrast to the typical ripeness case, however; here, the interests of both the court and the agency favor immediate review of the Commission’s finding. Where, as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher, 759 F.2d at 918.¹¹ It is enough that the petitioner show that it has suffered sufficient hardship to pass the Article III threshold. Because we have already determined that Consol has shown sufficient hardship to satisfy the constitutional requirement, it seems obvious that “[w]e need not proceed ... to the second prong of the Abbott Laboratories test.” Eagle-Picher, 759 F.2d at 918;¹² see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C.Cir.1978).

The dissent can point to no case in which the court has found that both the agency and the court have a positive interest in immediate review of the challenged agency action, but that the challenge is unripe because the petitioner has failed to show a hardship above and beyond that required for standing resulting from the action. To impose such a requirement would in effect convert the largely prudential doctrine of ripeness into an Article III “super-standing” requirement. The dissent apparently misconstrues our position, suggesting that we assert that “fitness for review” alone is always sufficient to make a claim ripe. See diss. op. at 1090 n. 7. Our holding is not that hardship is never required when a claim is “fit for review,” but simply that when there are no interests favoring postponement of review, there can be no prudential reason to require the petitioner to demonstrate an additional quantum of injury caused by deferring review. The Abbott Laboratories test does not impose an independent hardship requirement beyond that necessary for a “case or controversy” to exist. Rather, the ripeness doctrine requires only that a party seeking review show sufficient hardship to outweigh any interests the court or agency may have in deferring review.

The dissent cites cases in which this court found that the challenged agency action was “fit for review,” but nonetheless proceeded to consider the hardship prong of the Abbott Laboratories test. See diss. op. at 1094 & n. 31. All but one of these cases were pre-enforcement cases in which the challenged agency action was one that had not yet been applied to the party seeking review.¹³ See American Federation of Government Employees v. FLRA, 750 F.2d 143 (D.C.Cir.1984) (petitioner seeking review of FLRA statutory interpretation); American Trucking Ass’ns v. ICC, 747 F.2d 787 (D.C.Cir.1984) (ICC policy statement); Alascom, Inc. v. FCC, 727 F.2d 1212 (D.C.Cir.1984) (FCC announcement of policy); Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747 (D.C.Cir.1984) (FERC interpretative rule); Baltimore Gas & Electric Co. v. ICC, 672 F.2d 146 (D.C.Cir.1982) (ICC interpretative order).¹⁴ In cases like those cited by the dissent, both the court and the agency have an interest in postponing review until the agency’s decision is actually applied to the petitioner, so that the agency’s policy will have crystallized, and the issue will be presented in the context of a concrete application. To justify review in such cases, the petitioner must show some special hardship resulting from the action.

Were the dissent’s gratuitous interjection of a ripeness issue into this routine enforcement case to be accommodated, the result would be a strange one, indeed. The Secretary has determined, with the approval of the Commission, that citations issued under § 104(a) may contain both a finding that a violation was committed and a finding that the violation is significant and substantial. The dissent says that a mine operator may challenge the finding of a violation immediately, but must wait to challenge the designation of that violation as significant and substantial until a “pattern” notice is issued under § 104(e). See diss. op. at 1093 n. 27. This is piecemeal litigation at its nadir. It would require the mine operator to bring separate actions at separate times before separate courts to challenge two findings that are part of the same § 104(a) citation, even though the agency has determined that those findings are properly made together, and even though the findings will undoubtedly be based on the same underlying facts. It is small wonder that neither the Secretary nor the petitioner has asked for such a ruling.

But ultimately the detailed factual context in which this case is presented displays most visibly the deficiencies in the dissent’s approach. One of the arguments Consol makes is that, while respirable dust sampling techniques might be accurate enough to serve as the basis for a finding that a violation of the standard has been committed, they are not accurate enough for a finding that such a violation is significant and substantial. See Brief of Consolidation Coal Company at 19-29. This is precisely the sort of issue which is far better decided “in the context of a specific application ... than ... in the framework of [a] generalized challenge.” Toilet Goods, 387 U.S. at 164, 87 S.Ct. at 1524. The court stands on much firmer ground in deciding this issue on the basis of evidence about the accuracy of these particular samples rather than attempting to decide it later on the basis of allegations about the accuracy of respirable dust sampling in general. The ripeness doctrine favors postponement of review when a court believes that it would be better able to decide the case in the concrete factual context of a specific application of the challenged agency decision. See Andrade v. Lauer, 729 F.2d 1475, 1480-81 (D.C.Cir.1984). What the dissent asks us to do is to refuse on prudential grounds to decide the issue of whether the Commission has properly presumed that all violations of the respirable dust standard are significant and substantial, even though that issue is presented to us in the fully developed factual context of a specific application of the presumption. The dissent reasons that the court might be able to decide the issue in a single across-the-board challenge without that factual context, see diss. op. at 1093 n. 27, if at some later time such a generalized challenge to the presumption were raised. The argument that a court should refuse to review a specific application of a challenged agency policy because a general challenge to that policy may later be presented turns ripeness doctrine on its head. Adoption of the dissent’s approach would thwart the interests of all three interested parties in immediate review of Consol’s claim: the court, the agency, and the petitioner. We conclude that the issue presented should be decided now and hold that this case is ripe for adjudication.

B. The Presumption That Any Violation of the Respirable Dust Standard Is Serious and Substantial

Consol challenges the Commission’s adoption of a presumption that violations of the respirable dust standard are significant and substantial, arguing that this presumption conflicts with the Mine Act’s overall enforcement scheme and lacks a rational basis. Consol asserts that the Mine Act requires the Commission, before it designates a violation as significant and substantial, to make a finding that the particular violation at issue poses a serious danger to miners, and that the Commission in this case has improperly substituted a presumption for that finding. Consol cites United Scenic Artists, Local 829 v. NLRB, in which this court invalidated the NLRB’s presumption that a union charged with violating the secondary boycott provision by coercing a neutral employer had knowledge of the employer’s neutral status. 762 F.2d 1027 (D.C.Cir.1985). The court noted that “an agency is not free to ignore statutory language by creating a presumption on grounds of policy to avoid the necessity for finding that which the legislature requires to be found,” and held that, in adopting the presumption, the Board had exceeded its statutory authority. Id. at 1034-35.

We conclude that Scenic Artists is inap-posite to this case, however. The determination of the likelihood of harm from a violation of an exposure-based health standard necessarily rests on generalized medical evidence concerning the effects of exposure to the harmful substance, rather than on evidence specific to a particular violation.¹⁵ Unlike the presumption in Scenic Artists, which involved a factual question of intent requiring consideration of “the actual facts and the relationships between and among the various parties,” 762 F.2d at 1035, in this case there were no “actual facts” to be considered beyond the fact that a violation of the respirable dust standard had occurred. Once the Commission had determined on the basis of medical evidence that any violation of the respira-ble dust standard should be considered significant and substantial, it would be meaningless to require that the same findings be made in each individual case in which a violation occurs.¹⁶

Consol also objects to the particular presumption chosen by the Commission, arguing that because the Mine Act creates a graduated enforcement scheme, with more severe penalties imposed for more severe violations, the standard for designation of a violation as significant and substantial must necessarily be higher than the 2.0 mg/m³ required for a mere violation. As we noted in our discussion of ripeness, however, the fact that a particular violation has been designated as significant and substantial, without more, does not result in the imposition of any additional sanction under the Mine Act (although it may lead to the assessment of a larger fine under MSHA regulations). Accordingly, we can not say that Congress intended that some concentration of respirable dust higher than 2.0 mg/m³ be found before a violation of the respirable dust standard could be designated as significant and substantial.

The designation of all respirable dust violations as significant and substantial is consistent with the Secretary’s longstanding practice in enforcing the Mine Act. Before the issuance of the National Gypsum decision in 1981, virtually all violations of mandatory health and safety standards had been designated as significant and substantial. See 8 F.M.S.H.R.C. at 895 (“Prior to the Commission’s National Gypsum decision, the Secretary of Labor’s enforcement policy was to regard all violations of mandatory standards as significant and substantial, except violations that were technical in nature or that posed only a remote risk of injury.”) While the Commission in National Gypsum and Mathies Coal Co. departed from its past practice with respect to the designation of violations of safety standards as significant and substantial, it reasonably concluded that violations of the respirable dust standard should continue to be designated as significant and substantial because of the “fundamental differences between a typical safety hazard and the respirable dust exposure-related health hazard at issue.” 8 F.M.S.H. R.C. at 895.

The legislative history of the Federal Mine Safety and Health Amendments Act suggests that Congress intended all except “technical violations” of mandatory standards to be considered significant and substantial. The 1977 amendments redesigna-ted § 104(c) of the Coal Act as § 104(d) of the Mine Act without substantive change. The Commission’s predecessor, the Interior Board of Mine Operations Appeals (“Board”), had given a broad reading to the “significant and substantial” language of § 104(c)(1) of the Coal Act:

Section 104(c)(1), it should be recalled, mandates the issuance of a notice when an inspector finds that "... a violation is of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. ...” Our position now is that these words, when applied with due regard to their literal meanings, appear to bar issuance of notices under section 104(c)(1) in two categories of violations, namely, violations posing no risk of injury at all, that is to say, purely technical violations, and violations posing a source of any injury which has only a remote or speculative chance of coming to fruition. A corollary of this proposition is that a notice of violation may be issued under section 104(c)(1) without regard for the seriousness or gravity of the injury likely to result from the hazard posed by the violation, that is, an inspector need not find a risk of serious bodily harm, let alone of death.

Alabama By-Products Corp., 7 I.B.M.A. 85, 94 (1976) (emphasis in original). The Senate Report on the Mine Act, in discussing the proper interpretation of the “significant and substantial” language, noted the Alabama By-Products decision with approval: “The Board’s holding in Alabama By-Products Corporation is consistent with the Committee’s intention that the unwarranted failure citation is appropriately used for all violations, whether or not they create a hazard which poses a danger to miners as long as they are not of a purely technical nature.” S.Rep. No. 181, 95th Cong., 1st Sess. 31, reprinted in 1977 U.S. Code Cong. & Admin.News 3401, 3431. The Commission’s adoption of the presumption at issue here is consistent with congressional intent in enacting the Mine Act, and specifically with Congress’s use of the “significant and substantial” language.

Finally, Consol argues 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. Con-sol notes that Congress adopted the 2.0 mg/m³ standard on the basis of studies of the effects of long-term exposure of miners to respirable dust. See H.R.Rep. No. 563, 91st Cong., 1st Sess. 18, reprinted in 1969 U.S.Code Cong. & Admin.News 2503, 2521 (“In a dust environment below about 2.2 mg/m³, there is virtually no probability of a miner contracting pneumoconiosis ..., even after 85 years of exposure to such concentration.”) Therefore, Consol asserts, no rational connection has been shown between short-term exposure to coal dust and the development of coal workers’ pneumoconio-sis and other respiratory diseases. See Scenic Artists, 762 F.2d at 1034 (presumption is invalid where there is no “rational nexus between the proven facts and the presumed facts.”)

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 AU phrased it, a “drop in the bucket.” Thus, acceptance of Consol’s argument would mean that no single violation of the respirable dust standard could ever be designated as significant and substantial. See Reply Brief of Consolidation Coal Company and the American Mining Congress at 2. This result cannot be reconciled with congressional intent in enacting the respirable dust standard. Congress did not require that dust concentrations be maintained below 2.0 mg/m ³ over the long term; it required mine operators to “continuously” maintain the concentration of respirable dust at or below that level “during each shift.” 30 U.S.C. § 842(b)(2). Consol’s position would preclude the application of sanctions under §§ 104(d) and 104(e) on the basis of a mine operator’s violation of the respirable dust standard, no matter how severe or how often repeated. That cannot have been Congress’s intent. We agree with the Commission that “Congress clearly intended the full use of the panoply of the Act’s enforcement mechanisms to effectuate [the goal of preventing respiratory disease], including the designation of a violation as a significant and substantial violation.” 8 F.M.S.H.R.C. at 897.

C. The Accuracy of Respirable Dust Sampling Procedures

Consol also challenges the accuracy of the sampling procedures adopted by the Secretary to measure concentrations of res-pirable dust. Many of Consol’s arguments were considered and rejected by the Tenth Circuit in American Mining Congress (“AMC”) v. Marshall, 671 F.2d 1251 (10th Cir.1982), in which the court upheld the designated area sampling regulations promulgated in 1980. In that case, AMC did not challenge the designated occupation sampling program, which had existed before the new dust sampling regulations were promulgated and had previously been known as “high risk occupation sampling.” The court noted, however, that “the designated occupation sampling program is itself an area sampling program.” Id. at 1256. The court concluded that “[s]ince there is no perfect sampling method, the Secretary has discretion to adopt any sampling method that approximates exposure with reasonable accuracy,” and that the area sampling was “reasonably calculated to prevent excessive exposure to respirable dust.” Id.17

Before this court, Consol argues that dust sampling techniques are inherently so inaccurate that a respirable dust violation can never properly be designated as significant and substantial. This argument is inconsistent with congressional intent in enacting the respirable dust standard, however. The standard was developed on the basis of British epidemiological studies of the effects of exposure to various concentrations of coal dust on the prevalence of coal workers’ pneumoconiosis among miners. See S.Rep. No. 91-411, 91st Cong., 1st Sess. 15-16 (1969). Those studies collected data on levels of respirable dust using the Mining Research Establishment (“MRE”) sampling instrument, and Congress initially established the MRE device as the instrument of reference for measuring concentrations of respirable dust. See 30 U.S.C. § 842(e) (1976) (superseded) (defining “concentrations of respirable dust” as “the average concentration of respirable dust if measured with an MRE instrument or such equivalent concentrations if measured with another device approved by the Secretary”)¹⁸ The MRE instrument suffers from the same defects (collection of materials other than coal dust and collection of oversized, nonrespirable particles, for example) that Consol asserts make dust sampling techniques so inaccurate that they cannot serve as the basis for a finding that a violation is significant and substantial. As the Commission noted in its decision in this case, the 2.0 mg/m⁸ standard, which was adopted on the basis of studies using the MRE instrument, reflects the fact that samples taken with that instrument will inevitably include materials other than coal dust, as well as oversized particles. 8 F.M. S.H.R.C. at 901. Because the MRE sampling instrument, like all other sampling devices, is “less than perfect and ... designed to provide only estimates of actual exposure,” the fact that Congress enacted a sampling program using that instrument “indicates that it intended some error to be tolerated in enforcement of the dust standard.” AMC v. Marshall, 671 F.2d at 1256. Further, as the Tenth Circuit noted, MSHA regulations governing dust sampling procedures include a number of provisions which “minimize variability stemming from human and mechanical error.” Id. at 1259. The regulations provide for multiple shift sampling, for example, so that compliance is determined based on the average of a number of samples taken during consecutive shifts. 30 C.F.R. §§ 70.207(a), 70.-208(c), 70.210(a)(4). In addition, the regulations require that all sampling, as well as calibration and maintenance of sampling devices, be performed by persons who have been certified by the MSHA after passing a competence examination. 30 C.F.R. §§ 70.-202, 70.203. The sampling devices used must be calibrated after each 200 hours of operation and must be examined, tested, and maintained before each use. 30 C.F.R. §§ 70.204(b), 70.204(d). Despite all of these attempts to minimize variability, however, it is clear that some inaccuracy in coal dust sampling techniques remains. Nevertheless, in view of Congress’s undeniable concern with the prevention of diseases caused by respirable dust, it is highly unlikely that Congress intended to shelter violations of the respirable dust standard from the more severe sanctions provided for under the Act, simply because of the possibility of some inaccuracy in sampling techniques.¹⁹

Finally, Consol argues that the specific samples at issue in this case did not accurately reflect the actual mine atmosphere at the time the samples were taken. As evidence of the alleged inaccuracy, Con-sol points to the fact that three of the samples showed concentrations of dust considerably higher than the other two samples taken during this bimonthly measurement period and samples taken on the same working section at other times. Consol notes that it requested that two of the violative samples, which tested at 5.1 and 6.3 mg/m3, be checked for contamination or oversized particles, and it argues that the third sample, which tested at 8.1 mg/m3, could not have been accurate because conditions that dusty would have been immediately obvious. Consol speculates that the three samples that were above the 2.0 level must have resulted from a malfunction in the sampling machine, because “[t]he only act necessary to achieve abatement was to ‘babysit’ the sampling device to ensure its reliable functioning.” Brief of Consolidation Coal Company at 8-9. In arguing that the inaccuracy of the samples precludes the designation of its violation as significant and substantial, Consol ignores the fact that the Mine Act requires that “[e]ach operator of a coal mine shall take accurate samples of the amount of respirable dust in the mine atmosphere,” 30 U.S.C. § 842(a), and that MSHA regulations set forth detailed procedures for mine operators to follow in taking those samples. See 30 C.F.R. §§ 70.-202, 70.203, 70.204, 70.207, 70.208. We conclude that the risk of failing to “babysit” the sampling machine sufficiently to ensure that it was functioning properly while the samples were taken falls on Con-sol. Consol lists a number of factors which may cause a dust sample to be inaccurate, including defects in sampling equipment, misuse of the equipment, and deliberate contamination by miners, see Brief of Consolidation Coal Company at 22-24, but presents no evidence to show that the particular samples at issue were affected by any of these factors. See 5 F.M.S.H.R.C. at 380 (AU’s opinion) (“There is no evidence in this record that the samples which resulted in the citation involved herein were affected by misuse, deliberate contamination, improper miner work habits, or defective equipment.”) The Commission recognized that its conclusion that MSHA’s sampling procedures are accurate enough to permit the designation of respirable dust violations as significant and substantial did not preclude an operator from proving that “the accuracy of the sampling or testing results in a particular instance was compromised, thereby defeating the allegation of a violation as well as a significant and substantial finding.” 8 F.M.S.H.R.C. at 902 (emphasis in original). Because Consol presented no persuasive evidence that the samples on which this violation was based were inaccurate, the Commission properly rejected this challenge.

III. Conclusion

The Commission’s adoption of a presumption that violations of the respirable dust standard are significant and substantial is rational and consistent with congressional intent in enacting the respirable dust standard and the enforcement provisions of the Mine Act. In addition, the procedures used to measure concentrations of respirable dust are sufficiently accurate to support a determination that a respirable dust violation is significant and substantial. Accordingly, the petition for review is

Denied.

Footnotes

1

. The phrase “significant and substantial" will be substituted for this statutory language throughout this opinion.

2

. The Commission has defined "unwarrantable failure" as “a showing that the violative condition or practice was not corrected or remedied, prior to issuance of a citation or order, because of indifference, willful intent, or a serious lack of reasonable care.” United States Steel Corp., 6 F.M.S.H.R.C. 1423, 1437 (1984); see also Joint Appendix ("J.A.”) at 254a-255a (testimony of Chief of Division of Health of Mine Safety and Health Administration) (unwarrantable failure finding requires showing of negligence).

3

. A mechanized mining unit is defined as "a unit of mining equipment that a production crew utilizes for the extraction of material.” 45 Fed.Reg. at 23,991.

4

. Section 026-0 is a mechanized mining unit— specifically, a continuous mining machine.

5

.Consol had noted on two of the samples "please check for contamination, rock dust, oversized particles.” MSHA did not microscopically examine the samples, however, because MSHA’s policy is to conduct a microscopic examination only of those samples which test at 8.6 milligrams per cubic meter or higher.

6

. We have previously noted that "[rjipeness law overlaps at its borders with Article III requirements of case or controversy." Eagle-Picher Industries v. United States E.P.A., 759 F.2d 905, 915 (D.C.Cir.1985); see also Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 n. 12 (D.C.Cir.1986).

7

. The Commission ultimately imposed a $150 fine.

8

. The dissent states that it finds this argument “highly suspect," citing Chevron as support for its conclusion that we should postpone review until the Secretary has interpreted the term "pattern” used in § 104(e). Diss. op. at 1094 n. 29. The Court made clear in Chevron, however, that deference to an agency’s statutory interpretation is required only after the agency has actually interpreted the statute. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) (“If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation,") (emphasis added) (footnote omitted). Nothing in Chevron suggests that a court should hesitate to decide a properly presented issue of statutory construction in hopes that the agency will someday offer its own interpretation. In any event, the dissent’s assertion has no relevance to this case, in which the agency has both interpreted the statutory "significant and substantial" designation and applied it to the petitioner.

9

. The dissent responds that "individualized factual review" of such prior findings would be unnecessary, because “the only relevant question of fact would be whether respirable dust violations did occur as alleged by the Secretary," and proof that such violations occurred will be "a matter of official record." Diss. op. at 1093 n. 27. This argument ignores the possibility that there may be specific factual challenges to the designation of a violation of the respira-ble dust standard as significant and substantial. In this case, for example, Consol argues that the dust samples at issue did not accurately reflect the mine atmosphere at the time the samples were taken, and that both these particular samples and dust sampling techniques in general are so inaccurate that they cannot support a finding that a violation of the respirable dust standard is significant and substantial. See Brief of Consolidation Coal Company at 19-29.

Alternatively, the dissent asserts that review of each prior finding that a violation was significant and substantial would be unnecessary, because the issue could be addressed in one across-the-board challenge to the presumption, "when properly-presented in a section 104(e) case." Diss. op. at 1093 n. 27. The argument that we should postpone review of a specific application of the challenged presumption presented, as it is here, in a fully developed factual context, because we might at some later date be faced with a generalized challenge to the presumption, runs directly contrary to the purposes underlying the ripeness doctrine. One of the premises on which that doctrine rests is that courts are better able to decide issues presented in the context of a concrete application of the challenged agency action, rather than in a gen eral challenge not rooted in a specific application.

10

. It is no accident that the cases in which the Supreme Court developed the ripeness doctrine involved preenforcement challenges to agency action. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). Pre-enforcement cases, in which the court is asked to review an agency decision without the factual context that a specific application of the challenged decision to the petitioner would provide, are more likely than cases arising in other contexts to present institutional interests in favor of deferring review.

This case does not involve a pre-enforcement challenge, however; Consol has already been found to have committed a significant and substantial violation of the respirable dust standard. The labeling of Consol as a "significant and substantial” violator and its consequent ineligibility for the $20 minimum penalty result from agency action that has already occurred, not from agency action that may or may not occur in the future, as in the pre-enforcement cases. Indeed, the dissent concedes that "there was enforcement under section 104(a) when the Secretary issued a citation to Consol for violation of a respirable dust standard.” See diss. op. at 1100 n. 55.

11

. The dissent cites two cases in which the court found that the issue presented was a purely legal question and that the challenged agency decision was the agency’s final position, but nonetheless went on to discuss the hardship prong of the Abbott Laboratories test. See Better Government Ass’n v. Department of State, 780 F.2d 86 (D.C.Cir.1986); Capitol Technical Services, Inc. v. FAA, 791 F.2d 964 (D.C.Cir.1986). In neither of these cases, unlike Eagle-Picher, did the court find that there were positive interests favoring immediate review. Both cases involved general challenges to agency decisions, without the factual context of specific applications of those decisions. See Better Government, 780 F.2d at 92 (facial challenge to Department of Justice guidelines and Department of the Interior regulation); Capitol Technical Services, 791 F.2d at 968-69 (challenge to FAA general policy). This case, as we have noted, presents a very different situation: the presumption challenged here has unquestionably been applied to Consol, and the case is presented in a fully developed factual context.

Neither Better Government nor Capitol Technical Services held, as the dissent seems to suggest, that the hardship prong of the Abbott Laboratories test is an independent requirement divorced from the consideration of the institutional interests of the court and agency. In fact, the court in Better Government specifically stated that a showing of hardship is required "[i]n order to outweigh any institutional interests in the deferral of review." 780 F.2d at 92. The mere discussion of the existence of hardship to the parties in these cases is in no way the equivalent of a holding that hardship beyond that necessary for Article III jurisdiction is always required, no matter how strong the interests in favor of immediate review.

12

. The dissent correctly notes that Eagle-Picher involved "a statutory review provision that expresses a strong congressional preference concerning the timing of review.” 759 F.2d at 918. Nevertheless, Eagle-Picher also stands for the proposition that, when institutional interests (of the court, the agency, or of Congress) strongly favor review, it would be senseless to thwart those interests by delaying review on prudential grounds, merely because the petitioner has not suffered extraordinary hardship from the challenged agency action. The dissent’s attempt to characterize Eagle-Picher as a "narrow exception" to an absolute rule requiring special hardship in all cases, applicable only where Congress has explicitly indicated a preference for immediate review, see diss. op. at 1095, finds no support in Eagle-Picher itself or other ripeness decisions of this court or in Abbott Laboratories, which place no such limit on the court’s power to determine when the balance tips in favor of , immediate review.

13

. In none of these cases did.the interests of the court and agency point toward immediate review, as they do in this case. The court in Eagle-Picher specifically noted this distinction:

In some of our decisions we have suggested that the court should consider "the hardship to the parties," even where the first prong of the Abbott Laboratories test is met. [citing three of the cases cited by the dissent in this case] In none of these cases, however, did we explicitly find that both the agency and the court had a positive interest in immediate review.

759 F.2d at 918 (emphasis added).

The cases cited by our dissenting colleague as those in which this court has "postponed to a more appropriate time review of concededly ‘final agency action’ that imposed no present hardship,” see diss. op. at 1101 & n. 64, also involve institutional concerns favoring deferral of review. See Northern Natural Gas Co. v. FERC, 780 F.2d 59, 63 (D.C.Cir.) (challenge to condition which would not be applied until after petitioner's next rate case was unripe where court could not determine validity of condition outside context of future ratemaking order), reh’g en banc granted and opinion vacated in other part, 780 F.2d 64 (D.C.Cir.1985); Air New Zealand Limited v. Civil Aeronautics Board, 726 F.2d 832, 837-38 (D.C.Cir.1984) (petitioner’s challenge to condition providing for possible future termination of its authority to operate air service was unripe until condition actually applied); Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C.Cir.1978) (possible hardship to petitioners outweighed by court's interest in "postponing review until these issues arise in a more concrete and final form”).

14

. In Air New Zealand Limited v. Civil Aeronautics Board, the other case cited by the dissent, the petitioner sought review of an order granting it authority to provide service between Los Angeles and London on flights originating or terminating in New Zealand. 726 F.2d 832, 833 (D.C.Cir.1984). The condition provided that the authority would terminate if the aviation regulatory authorities in New Zealand took certain actions in the future. The court held that review of petitioner’s challenge should be delayed until the termination actually occurred. Id. at 838. In Air New Zealand, there were especially strong institutional interests in delaying review because the case involved questions of the proper interpretation of an international aviation agreement, which could best be resolved through "the normal administrative process, which in this case includes the diplomatic process as well.” Id.

15

. In contrast, the determination of whether a violation of a safety standard is significant and substantial may depend on the specific factual circumstances surrounding the violation. Cf. Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 589-90 (D.C.Cir.1985).

16

. Consol also argues that the Commission has adopted an "irrebuttable presumption” that any respirable dust violation involving exposure of miners is significant and substantial, and that this presumption is invalid as a denial of due process, regardless of its consistency with the Mine Act. Again, this argument ignores the unique nature of an exposure-based health standard. The Commission necessarily must adopt a general policy concerning whether violations of the respirable dust standard will be designated as significant and substantial. The only evidence that would be relevant to show that such a policy should not be applied in a particular case is evidence that miners were not actually exposed to excessive concentrations of respira-ble dust. The Commission specifically held that the presumption could be rebutted by presentation of evidence of lack of exposure. 8 F.M.S.H. R.C. at 899.

17

. Consol and amicus AMC argue that AMC v. Marshall can be distinguished from this case because the Tenth Circuit did not decide whether the respirable dust sampling procedures were accurate enough to permit MSHA to determine that a violation of the respirable dust standard was significant and substantial. Noting that the question of whether miners are actually exposed to excessive levels of dust, "while not a prerequisite to finding a violation, is critical to the determination whether a violation is significant and substantial,” they argue that the Tenth Circuit merely held that the area sampling regulations were not arbitrary and capricious, but did not consider whether samples taken under those regulations accurately reflected miner exposure. See Brief of Consolidation Coal Company at 27; Brief for Amicus Curiae American Mining Congress at 39. It is clear, however, that the question of the extent to which designated area samples reflect actual miner exposure was considered in AMC v. Marshall The court noted that the petitioner had argued that the area sampling program did not provide an accurate measure of any individual miner’s exposure, so that a mine operator might be cited for a violation of the respirable dust standard on the basis of area samples, even though no one miner’s actual exposure exceeded the standard. 671 F.2d at 1255. The court rejected this argument, concluding that the sampling method adopted by the Secretary provided a reasonable approximation of actual exposure. Id.

18

. In 1977, Congress redefined "concentrations of respirable dust" as "the average concentration of respirable dust measured with a device approved by the Secretary.” 30 U.S.C. § 842(e).

19

. Consol also objects to MSHA’s policy of microscopically examining dust samples for contaminants or oversized particles only if they test at a concentration level of 8.6 mg/m 3 or higher. The policy was adopted on the basis of evidence that the statistical probability that sam-pies below the 8.6 level contain a significant number of oversized particles is very low. See J.A. at 304a-308a (testimony of chief of Dust Division of MSHA’s Pittsburgh Technology Center). We conclude, as did the Tenth Circuit in AMC v. Marshall, that the Secretary acted within his discretion in refusing to examine samples testing at lower than 8.6 mg/m 3. 671 F.2d at 1260.

3

. See id. § 814(e).

8

. Capitol Technical Services, Inc. v. FAA, 791 F.2d 964, 969 (D.C.Cir.1986). See Better Government Association v. Department of State, 780 F.2d at 92; American Trucking Ass’n, Inc. v. ICC, 747 F.2d at 790.