FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

January 3, 2012

     DECISION

Appearances:   David Smith, Esq., Maynard Cooper & Gale, PC, Birmingham, Alabama

                              for the Contestant   Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia for the Respondent.

Before: Judge Moran

          In this proceeding under the Mine Act, Contestant Jim Walter Resources, Inc. (“JWR”) maintains that Order Nos. 8519555, 8519555-01, and 8519555-02 should be vacated on the grounds that they were “unlawful, unconstitutional, and products of MSHA’s abuse of discretion.” JWR Brief at 1. For the reasons which follow, JWR’s various claims are rejected and its Contests in these matters are DISMISSED.

            It is JWR’s assertion that “the Secretary’s orally and remotely issued § 103(j) order and its subsequent automatic modification into a § 103(k) order were unlawful under the Mine Act.” Id. at 1. JWR contends that (j) orders “can only be issued when rescue and recovery work is necessary, and [neither was present] in this case.” Id. JWR describes MSHA’s practice of “blindly issuing a (j) order [which is then] automatically modified into a (k) order upon the inspector’s arrival at the mine” to be without any “statutory basis” and it characterizes MSHA’s action as a “surreptitiously adopted protocol.” Id. at 2 (emphasis added).

            One might think, given the tenor of JWR’s initial contentions, that there would be no alternative stance but that is not the case. JWR’s second position is that, if MSHA’s actions could be viewed as its interpretations of the Mine Act, such interpretations would not be entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), (“Chevron”), because those interpretations arose as “procedures set forth in mere policy letters, [and such letters] lack the force of law.” Then, as a back up to its back up position, JWR adds that, even if the policy letters were eligible for Chevron deference, one cannot move to the deference issue because the “unambiguous language of §§ 103(j) and (k)” state Congress’ express intent. Id. at 2. Thus, by asserting that the plain language of those sections precludes any “deference” step, JWR circles back to its initial argument.

            JWR has other issues with MSHA’s action here because it contends that the “Secretary’s modification of the (j) order to a (k) order while a previously issued (k) [order] was still in place on the same area of the mine violated JWR’s procedural due process rights.” JWR’s theory is that MSHA should have modified the first, already existing, (k) order and not modified the (j) order to new (k) order. By doing this, JWR claims MSHA “denied JWR its statutorily granted right to challenge the scope of the second (k) [order].” Id.

            Last, JWR asserts that MSHA’s actions were “arbitrary and capricious” and, as such, an abuse of agency discretion. JWR says that is so because MSHA made no “rational connection between the facts of the accident and the drastic action it took against JWR.” Id. (emphasis added). Such “drastic action,” as JWR characterizes it, produced an order “whose scope and impact on the mine was grossly disproportionate to the scope of the problem.” Id. (emphasis added).

Statutory provisions involved in this proceeding

The full text of the sections of the Mine Act involved in this Contest provide as follows:

Section 103 (j) Accident notification; rescue and recovery activities

In the event of any accident occurring in any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof. For purposes of the preceding sentence, the notification required shall be provided by the operator within 15 minutes of the time at which the operator realizes that the death of an individual at the mine, or an injury or entrapment of an individual at the mine which has a reasonable potential to cause death, has occurred. In the event of any accident occurring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine.

30 U.S.C. § 813(j).

Section 103 (k) Safety orders; recovery plans

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine, and the operator of such mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any plan to recover any person in such mine or to recover the coal or other mine or return affected areas of such mine to normal. 30 U.S.C. § 813(k).

Findings of Fact

The Sequence of events:

            Mr. Jacky Shubert is presently a MSHA field office supervisor, a position he has held for the past 3 years. In charge of nine employees, he directs the work force out of MSHA’s Bessemer field office. On March 25, 2011, Supervisor Shubert issued the (j) order, which is part of the subject of this Contest, at JWR’s Number 7 mine. Tr. 17. Shubert’s experience with the Number 7 mine is extensive. Tr. 18. Regarding the event in question, Shubert was contacted on March 25, 2011, receiving a phone call from Keith Plylar, who is the safety supervisor at the Number 7. Plylar told Shubert that there had been an ignition on the “Number 4 outby the face area [while they were] doing some burning and welding.” Tr. 35. In reaction to that information, Shubert issued, verbally, to Plylar, a section 103 (j) order. Having issued that (j) order, the conversation with Plylar ended. Tr. 18.

            Shubert then contacted MSHA inspector Joe Turner, directing him to go to the mine and investigate the matter. Tr. 18-19. Shubert advised that this (j) order was not the first he had issued to this mine, as he had issued about 25 such (j) orders in the last two years. Tr. 19. The majority, that is “probably 99 percent” of those (j) orders pertained to ignitions. Tr. 19. Government Exhibit 1 (“GX R 1”) is the written memorialization of Shubert’s orally issued (j) order, as issued later the same day, by Inspector Turner. Thus Turner reduced the oral (j) order from Shubert to writing. Tr. 20. Shubert explained that the ignition involved here was created by sparks from burning and welding activity. However, it should be realized that such sparks, by themselves, do not cause an ignition as there must be methane present too. Thus, the recipe involves both a spark and methane for an ignition to occur. Tr. 21.

            Added to that is the admitted fact that the Number 7 mine is one of the gassiest mines in the United States and it is the gassiest mine in all of MSHA’s District 11. In fact, the mine liberates some 20 million cubic feet of methane every 24 hours. Tr. 21. Underscoring the gravity of the inherent conditions at this mine, the Number 7 is under a “five-day spot” inspection. Any mine that liberates more than a million cubic feet of methane in 24 hours is under such a five-day spot inspection. Tr. 21. Thus, every day the Number 7 liberates twenty times the amount of methane needed for the five-day spot inspection requirement. Further, the face has to be checked every 20 minutes for methane. Tr. 22.

            In terms of “ignitions” Shubert stated that the Number 7 Mine had approximately 23 in the past 15 months. Tr. 23. Shubert then spoke to the “accident/injury report” that is within MSHA’s data base. The report, GX R 2, and referred to as a “7001,” is filled out by a mine operator whenever there is an accident, or injury or illness. Information from the report comes directly from the mine making the report. Thus, the words employed in the 7001 are unfiltered. They are taken from the mine’s own reports to MSHA. Tr. 29. These reports are part of MSHA’s regularly kept business reports. For this report, Shubert related that every one of the ignitions listed in it involved a spark contact with methane. Tr. 26.

            By statutory definition under the Mine Act, an “accident” includes a “mine ignition.” There is no dispute that a mine ignition occurred here. Though it sounds friendlier and more genteel, when, during the hearing, the witnesses or counsel referred to the “accident” at the Number 7, which generated this litigation, that term was used as a synonym for the “ignition” which occurred on March 25, 2011. See, Tr. 16-17.

            Affirming his earlier testimony, when Shubert issued the (j) order, he told Mr. Plylar that a (j) order was being issued. Plylar responded that he was aware of that. Shubert then explained the purpose of utilizing a (j) order.

                                    [W]hen an accident occur[s] at any coal mine[ ], . . . [MSHA]

                                    will preferably issue a (j) order, not knowing of the output

                                    of what’s going on at the mines, to preserve the evidence.

                                    And not knowing if the fire’s out or if they need any

                                    assistance at the mines until the inspector arrives and he

                                    will make that decision.

Tr. 34.

            The (j) order itself is consistent with Shubert’s statement. It provided:

                        An ignition has occurred on the no. 4 section (MMU-004) outby

                        the last open crosscut where welding was being performed. This

                        103(j) order is issued to protect the health and safety of the

                        miners and to protect any evidence that would be pertinent to the

                        ignition investigation. This order also prohibits all activity inby the

                        feeder on the no. 4 section (MMU-004). This order was initially

                        issued orally and has now been reduced to writing.

Order No. 8519555

             According to Shubert, when he is informed that there has been an ignition, he recognizes that such an event could have caused an explosion and that it could still be burning. For that reason, MSHA issues a (j) to preserve the evidence at that time. Tr. 35. As to whether Plylar advised whether the flame from the ignition was out, Shubert initially could not recall, but then stated that Plylar did not so advise. Tr. 125. Shubert did acknowledge that in the majority of such calls, MSHA is told that the fire has been extinguished. Tr. 125. In the Court’s view, this is beside the point. First, what occurs in the majority of such past cases does not instruct the agency as to the proper course to be taken when a new ignition is reported. Second, and of greater importance, calls, such as the ignition report here, are relaying information. They are not being transmitted by one with firsthand knowledge. Plylar was relaying what someone else told him. Therefore, given the gravity that may be associated whenever an ignition occurs, it is prudent for MSHA to take steps to place all matters on hold until it has an inspector on the scene to personally observe, firsthand, the situation at the mine.

            Shubert also informed that, confronted with such information, this is MSHA’s only tool. That is, there is not some other order available at its disposal when faced with the report of an accident. There are no alternative orders to invoke. Tr. 35-36. Shubert reconfirmed this later: MSHA has no other tool other than to issue a (j) order when a call comes in advising of an ignition. Tr. 171-172. The Court finds this to be the fact. Significantly, in the context of the Agency’s mission of protecting miner safety and health, Shubert advised that if he had done nothing the mine would’ve been able to continue to mine with no new restrictions added, despite having had an ignition. Tr. 172. This state of affairs, that is, the issuance of a (j) order, may change, but not until the inspector actually arrives at the mine. At such time, the Inspector will reduce the (j) order to writing and then may issue a (k) order or any other order the inspector deems to be appropriate, either to preserve the area or conduct his investigation. Tr. 36.

            The Court inquired of Shubert as to why it is necessary to orally issue a (j) order immediately at the time it learns of an ignition. Inspector Shubert stated that this was done to “cease any operations, to stop any work so [MSHA] can go down and investigate and to - - that’s for the company to preserve all the evidence that they have.” Tr. 37. By issuing it verbally, that verbal instruction ceases operations immediately, or at least that is the intention by its issuance. Tr. 37. This is true whether the mine is mining coal or, as happened here, working by doing burning and welding. Tr. 37-38. It is also designed to address any risk of tampering with evidence. Tr. 38.

            To place MSHA’s conduct in context here, it is important to note that Supervisor Shubert called Inspector Turner immediately after the phone call from Plylar. Tr. 40. In that call to Turner, Shubert advised him that he had issued a verbal (j) order, and that the mine had an ignition. Tr. 49. He did not tell Turner that the mine was already under a (k) order, though Shubert knew that was the case. In this regard Shubert stated that the mine had an ignition in the face area a couple of days before the ignition involved here. Shubert expressed that his intention with the (j) order in issue in this case was to freeze mine activity outby the feeder or at the feeder where the [continuous] “miner,” that is, where the continuous miner machine they were working on, was located. Tr. 49. As the “continuous miner” was at the feeder location, the ignition occurrence was not a face ignition. Consequently, the face area was not shut down by the (j) order at issue in this case. Tr. 50.

            In any event Shubert agreed that the data from Ex. R 2 (i.e. the 7001 accident/injury report) was considered by MSHA but not before the issuance of the (j) order. Rather, it was considered later when the (k) order was issued, supplanting the (j) order. Tr. 55. Shubert agreed that MSHA maintains “event files” for each of those listed events. Tr. 58. If he had looked at each of those event files, he would have seen that there was an existing (k) order on the Number 4 section. However, that existing (k) order was “in the face area.” In contrast, the (k) order in this litigation was issued for the outby area. Tr. 58. Shubert acknowledged that he did not review the particulars of those listed ignitions. Tr. 60.

            Shubert stated that he did talk with Inspector Turner later the same day, that is, after he initially sent Turner to the mine. Despite the fact that Supervisor Shubert did not issue the (k) Order in this case, JWR still made efforts to ask him about its issuance. Tr. 120. In this regard, Shubert denied that he told inspector Turner that he was to change the (j) order to a (k) upon his arrival at the mine. Tr. 121. Rather, Shubert stated that the inspector, upon arriving at the mine, is to determine what appropriate order should be issued. Although Shubert stated that he could not recall if he stated to Turner that he was to issue a (k) order when he arrived at the mine, he did agree that under normal circumstances, the (j) will be converted to a (k) when the inspector physically arrives at the mine. Tr. 131-133. When JWR asked Shubert if a (k) order requires a mine emergency before one can be issued, the supervisor expressed that any accident could be an emergency, as the agency is not yet at the scene to see the situation firsthand. Tr. 137-138. Shubert did agree that for his District, District 11, based on his practice, a (j) order is issued when MSHA is not yet present at the mine and a (k) order may is issued after MSHA has arrived. Tr. 122. Although the (j) order temporarily stopped coal production on the Number 4 section, JWR was able to continue to run coal on the longwall. Tr. 153.

            Even though the context of the report of an ignition inherently demands an immediate reaction from MSHA, as JWR would have it, a (j) order can only be employed by MSHA in a situation such as this only after a time consuming and deliberate process has first been employed. This view flies in the face of the provisions of (j) and (k) and the 800 number to reach MSHA when an ignition occurs.

            Continuing with its overarching theme, that MSHA must first establish a connecting link between the (j) order it issued here and the many previous (j) orders it issued to the Number 7 mine in the past 15 months, the Court permitted JWR to lard the record with its details regarding the circumstances of the prior ignitions. Thus, JWR was permitted to go on about the set of event files, reflected by Exhibit 18, which provides details regarding the 23 “events” (i.e. ignitions) that are the subject of R 2. Tr. 70.

            While the Court permitted JWR to put such information in the record, it made it clear that it thought little of the contention. The Court expressed that while an examination of the preceding 23 events may be “interesting” in some sense, it informed counsel that it believed MSHA’s action could be sustained simply by looking at the particular event being challenged here. That is to say, in this Court’s view, it is not at all necessary to examine the circumstances of the prior 23 ignition events in order to uphold the (j) order in issue here. Rather, MSHA’s (j) order action can be sustained by looking at the particular actions taken here. To express this another way, the Court stated that it can examine “that moment in time” to determine the appropriateness of MSHA’s action, and that the prior particular circumstances of those very many ignitions, good or bad, would not be determinative of the propriety of the issuance of the (j) or (k) orders here. The Court expressed further that the appropriateness can be determined based simply on the telephone call to Schubert and, focusing on that moment in time, notwithstanding the particulars of the ignition history. Tr. 72.

            Accordingly, referring to MSHA Inspector Shubert’s very limited role, the Court expressed that Shubert did what a responsible supervisor is supposed to do in such circumstances: dispatch an inspector to the mine to view the situation firsthand. Tr. 72.

            Though covered already, JWR counsel then revisited the same points, which points were not being contested in any event. Thus, Shubert repeated that there was no injury nor death in this instance and that he was not aware of any entrapment at the time he took the call from JWR. Tr. 77-78. However, Inspector Shubert also repeated his position that he was not aware one way or the other of such occurrences at the time he took the call from JWR. Thus, he emphasized that after the fact, he determined those things did not occur, but before the fact, that is, at the time he received the call, he did not know. Tr. 78, 92. The Court finds this to be the fact.

             Shubert agreed that no one told him that anyone had died. As to whether there had been any injury, he stated they never said “either/or.” It did not occur to him to ask if there had been any death, injury or entrapment. Tr. 79. More importantly, Shubert affirmed that when he receives a phone that there has been an ignition, he acts, adopting the Court’s characterization, in a “prophylactic” or “protective mode.” Tr. 81. Shubert expressed that a (j) order does more than protect against evidence destruction, that it also seizes the area. Tr. 89. Shubert repeatedly expressed that MSHA issues the (j) order verbally because, at that point in time, they don’t really know what is going on at the mine where the ignition occurred. Tr. 93. As he more directly expressed the Agency’s reaction to an ignition, “We err on the side of safety.” Tr. 82.

            Significantly, as Shubert noted, he does not have firsthand knowledge at the time the call is received, “[a]nd the individual that makes the call doesn’t have firsthand knowledge [either].”

This is so, because “they’re getting the message from underground that the individual has called them and said that we’ve had an ignition.” Tr. 82. In an abundance of fairness, the Court allowed JWR to rehash many previous questions and answers. Upon such re-asking, Shubert again stated that he did not know when he issued the (j) that there was no injuries or property damage. Tr. 126. Nor did he agree that he knew at that time that the event was over. And he denied that he knew there was no emergency when he issued the (j). Tr. 126. As noted, Shubert, possessing only third hand information, could not be sure of the situation. Even Plylar was only relaying what he was told by another. Shubert agreed that in every instance when he receives a call that there has been an ignition, he will then issue a 103(j). Tr. 83. As Shubert further stated, the (j) order is issued to “preserve the scene[] and to seize the area so the inspector can there and see if a rescue team is needed or what’s needed, and then he will issue the appropriate order.” Tr. 84. Thus, the Court expressed this approach as the Agency’s determination that it needs to have “boots on the ground” to accurately assess the situation attendant to the ignition. As Shubert put it, until its inspector is actually at the mine, it simply doesn’t know for sure what is going on there. Tr. 84. This is critical because an ignition deals with the deadliest occurrence in a coal mine; the ignition of methane. Making matters potentially graver, it must not be forgotten that this mine is one of gassiest methane producers in the entire country. As the Court characterized it further, it is a better to have a safe rather than sorry approach to such an occurrence. Tr. 91.

            MSHA Coal Mine Inspector Joseph Turner was also called as a witness for the government. Tr. 210. Based upon his history of inspection activity at the mine, Inspector Turner is quite familiar with JWR’s Mine Number 7. Tr. 212-213. Turner related that Supervisor Shubert called his home around 6 a.m. on March 25, 2011 and told him to go to the Number 7 mine as there had been an ignition while miners were burning and welding. Tr. 213-214. Turner then arrived at the mine around 7:30 a.m. Tr. 216, 218. Shown R 4, Turner identified it as his notes from that day. Tr. 217. Inspector Turner related that when he arrived he noted there was no ambulance, rescue truck or fire truck present. Having made that observation, once he left his car he advised JWR management at the mine that he would be modifying the (j) to a (k). Tr. 223. Accordingly, the modification to the oral (j) was done before Turner interviewed the first miner. Tr. 225.

            It was Inspector Turner’s recollection that he then first spoke with either John Connellan, the mine’s safety supervisor, or possibly with Keith Plylar. The more important point is that he informed that he was modifying the (j) to a (k). Tr. 219-220. Turner stated that the 103(k) shut down activity inby the feeder on the Number 4 section, with the “feeder” being the loading point where the coal travels before it hits the conveyor belt. Tr. 243-244. Turner agreed that JWR’s history of ignitions was part of the discussion he had with Shubert on modifying the (k) order. Tr. 283. Turner reaffirmed that his (k) order was issued before he went underground at the mine. Tr. 309. The sequence of the orders was that the (j) was modified to a (k), with the latter occurring shortly after Turner arrived at the mine and then at 3 p.m. the (k) was modified after he came out of the mine at which point the training requirement was imposed. Tr. 310.

            Turner also expressed that, upon being dispatched by Supervisor Shubert, his responsibility was to conduct an investigation. Tr. 220. Turner was advised by JWR management as to the miners who had witnessed the ignition. He interviewed those miners and after that was completed, he then went to the site of the ignition. Tr. 221. From his interviews, Turner learned that the flame varied from 2 inches to a foot and that it was extinguished with a wash down hose. Tr. 225. In the Court’s view, this demonstrates that MSHA was not going through the motions; that this was a genuine and serious investigation.

            Regarding gas tests, Inspector Turner expressed that some tests had been taken but “[t]hat the main one that was [his] concern [ ] had not been taken . . . .” Tr. 225. After first completing the required imminent danger run, Turner arrived at the continuous miner where the ignition occurred. Tr. 227. Part of his testimony concerning his observations at the underground location of the ignition, included methane readings he gathered. The methane readings were brought out by Counsel for the Secretary as background to explain Turner’s decision to later terminate the 103(k). Turner also described the location where he found the continuous miner, where he noted bubbling water on the mine floor. Based on his experience, this can mean that methane is bleeding out of the mine floor. Tr. 234. 

            Turner affirmed that, prior to arriving at the mine, he knew no details about the ignition other than what Supervisor Shubert had told him. This amounted to being advised that there had been an ignition on the number 4 section involving welding activities. Tr. 246. Turner informed that Shubert simply told him two things: the mine had an ignition and that he, Turner, was needed to go to the mine and conduct an investigation of that event. Tr. 248. Turner did state, upon questions from JWR’s Counsel, that he would “imagine there wasn’t a fire ablaze because he [i.e. Shubert] would have said [that was the case], I would imagine, if he [ i.e. Shubert] knew.” However, these statements from Turner are not especially informative because they reflect that Turner was merely speculating when he said he “would imagine” what Shubert would have said and because the second aspect of his response reflects his view that Shubert may not have known what exactly was going on.

            Shubert did acknowledge that he conferred with Turner about the training that would be required, and that it would apply to every employee at JWR. He also agreed that when he issued the (j) order orally, only the maintenance crew was involved in the ignition. This training covered ignitions, firefighting, burning and welding and it took only about an hour to conduct it. Tr. 241-242. In terms of its content, to the Court, the training made sense, given the extensive ignition history at the mine. It also seemed to be a very modest price, considering the continuing ignition problems. Tr. 242. In making the determination, which the Court finds to be MSHA’s determination to make, not JWR’s, Shubert stated that he conferred with Inspector Turner and with others in the agency, including Shubert’s superiors. Tr. 157. At any rate, Shubert stated that it was a discussion between Turner and him, not an edict on Shubert’s part, because it was Turner who was present at the mine. Tr. 158. Critically, Shubert stated that if Turner had elected to train less than the entire mine, he would have permitted that. Tr. 161. As Shubert elaborated, it was the large number of previous ingitions, 23 at this mine, that brought about the broad action of requiring training for all miners. Tr. 162.                          

            It is fair to state that the Contestant’s case began with what the Court viewed to be as irrelevant matters. Its first witness, Mr. Mike Parris, is a paralegal with Walter Energy’s legal department. Mr. Parris collected data from the spotters used by the supervisor and welder on 4 section during March 2011. Tr. 324. Those spotter readings represent atmospheric readings during the time in question. JWR proposed exhibits 15 & 16. Parris’ role for these exhibits was solely to authenticate those potential exhibits. Tr. 326.

            Upon Counsel for JWR affirming to the Court that the purpose behind its effort to have those records made part of the record, namely that “in some form or another [it is JWR’s stance that] the agency should have looked at [the spotter data] in [proposed exhibits] 15 and 16 before issuing the 103(k) or even the 103(j) before they acted[,]” JWR Counsel responded, “Yes, sir.” Tr. 330. The Court inquired of Mr. Parris if the readings in those potential exhibits identified the particular area where they were taken, and Parris he advised they did not. Tr. 329. The Court then ruled that proposed JWR Exhibits 15 & 16 were not admissible, as they were irrelevant. Tr. 330. Of course, it is fair to comment that if the agency should have looked at all this data before it issued a (j) or (k) order, and if it really was as instructive about the inappropriateness of MSHA’s action, it would seem to follow that the ignition should never have happened. But, it did.

            Consistent with its view about all the steps MSHA should take before issuing (j) or (k) orders, despite the admitted fact of an ignition occurring, JWR then sought to have proposed Exhibit 19, a summary of the ignitions investigated by District 11 in the period from January 2010 up to April 2011, and proposed Exhibit 18, a stand-alone binder that has 23 MSHA ignition event files in a complete form, both admitted. Tr. 332-334.

            By comparison, R’s Ex 2 is drawn from MSHA’s database and includes a short description of events reflected in JWR’s proposed Ex. 19, while proposed Exhibit 18 is the full document itself, not a summary. Tr. 335. The government objected to proposed JWR Exhibit 19 as irrelevant, on the basis that the ignitions and the particulars of them are not in issue in terms of a 103(j) or (k). Tr. 336. Although the Court agreed that these exhibits are irrelevant and immaterial, it factored the likelihood that JWR will appeal the decision and, therefore, to aid any review, it decided to admit Exhibit 19, the summary, but not Exhibit 18. Tr. 337-339.

            JWR’s next witness was Mr. Ty Olson. Olson is presently the underground manager at the east quarry for the Number 7 mine. Tr. 340-341. Directed to proposed JWR Exhibit 22, which is a map of the Number 7 mine, the witness identified the locations on it of the 23 ignitions that were in the event file. Tr. 342. These location listings correlate to R’s Ex. 2; the JWR exhibit lists the first ignition from R 2 and it then labels the others consecutively. The numbers on the map also correspond to the numbers on JWR 19, the summary. As with the Court’s ruling admitting Exhibit 19, and despite finding that the information was neither relevant nor material to the issues in this case, Exhibit 22 was admitted, essentially for the benefit of any reviewing body, so that it could see for itself that the evidence was not pertinent to this proceeding.

            JWR also drew attention to Ex 21, the MSHA (k) order dated March 23, 2011. Tr. 352. The government objected to the relevance of Ex 21 because it did not deal with the (j) or (k) orders in this case. Tr. 353. In any event, Olson stated that MSHA had a (k) order permitting the miners to perform maintenance on the miner. The miner’s drums were being changed because of an ignition that occurred two days earlier. Tr. 354. It is JWR’s apparent contention that because the ignition, occurring a mere two days before the one in this litigation, was a frictional ignition, whereas the ignition here was caused by a spark from welding, MSHA should have distinguished the ignition subsets. Tr. 355. Apparently, it is JWR’s position that MSHA should not have noticed the forest of ignitions and instead should have focused on the variety of trees in that accident forest.

            JWR’s last witness, the only witness supplied by JWR who could offer relevant information about the ignition in issue here, was Chester Keith Plylar. Mr. Plylar is now a safety coordinator and safety director at the mine and he was working at the Number 7 mine on March 25, 2011, arriving around 5:30 a.m. Tr. 369-370. That morning he received a call from the control room operator (“CO”) informing that “they had an ignition burning and welding on a miner head up on Number 4 section and that they had the ignition put out and that it lasted approximately a few seconds.” Tr. 370 (emphasis added). It is important to note that the CO’s call came from the control room, which is located on the surface. Tr. 370. Thus, not only was the information Plylar relayed to Shubert not firsthand from Mr. Plylar, even his source, the CO, was relaying what someone told him. In fact, the record does not reveal, one way or the other, if the information given from underground to the CO was from an eyewitness to the ignition either.

            In any event, Plylar stated that he was told that the ignition was out and that no one was injured and that this call to him came around 5:50 a.m. Tr. 372. Plylar then called the 1-800 number to report the ignition. He reached a person, but could not remember that individual’s name, nor did he write it down. Following that call, Mr. Plylar called Mr. Shubert, reaching him around 6:00 a.m. Tr. 373. According to Plylar, Shubert told Plylar that “he was issuing a (j) order at that time. Plylar knew the (j) order only applied to the affected area, that is, where “the actual welding was going on on the [continuous] miner.” Thus, he knew it did not apply to the entire mine. Tr. 385. Plylar at first stated that ended the call, but then added, “ . . . let me back up. Either he [i.e. Shubert] said that no work in the affected area or I told him, I said we will not do any work in the affected area.” Tr. 376. (emphasis added).

            Plylar also stated that he was familiar with the second modification of the (k) order, in which MSHA required training. Tr. 376. In fact, he typed up the outline for the training, noting that it included going over “the ignition preventions and all that with them and things to look at.” Tr. 377. (emphasis added). Thus, the Court observes, at least Plylar recognized that it is not about classifying ignitions and grouping sources of ignitions, as JWR would have it, but rather that the idea is the prevention of ignitions. As to whether any of the training dealt with welding underground, Plylar affirmed that it did, “Yes, it was addressed as . . . either a PIL or a PIB from MSHA about taking methane checks next to the mine roof, rib, of the floors.” Tr. 377. The training also spoke to those things to do “to prevent any type of ignitions.” Tr. 378.

(emphasis added).

DISCUSSION

Plain Meaning and Deference to Secretarial Interpretation of the statutory provisions.

            The formula for statutory interpretation in this context is well understood. Per the Chevron formulation, one first examines the plain meaning of the statutory terms but, if the conclusion is that the answer is not clearly revealed by that process, the interpretation made by the agency charged with enforcement of the act is given deference.

            Although the “plain meaning” analysis is the first step in interpreting a statute, that process is not robotically applied. Accordingly, the plain meaning rule “does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.” Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1127 C.A.9 2005, citing, Lungren v. Deukmejian, 45 Cal.3d 727, 248 Cal.Rptr. 115, 755 P.2d 299, 304 (1988). Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” Id.

            This approach was echoed in Meredith v. Federal Mine Safety and Health Review Com'n,

177 F.3d 1042, C.A.D.C.,1999 where that court applied common sense in interpreting whether the word “person” under section 105(c)(1) included MSHA officials. While it acknowledged that the starting point for any analysis is the text of the statute, it noted that “plain meaning and literal meaning are not equivalents and that there can be instances when focusing on the text alone can make the plain meaning elusive. Id. at *1055. The process requires “moving beyond the text . . . to examine the statutory scheme in which it reposes . . . .” Id.

            Other courts have also addressed this issue. For example, in Sosa v. U.S. , 550 F.2d 244, C.A.Tex. 1977, it was observed that a court which employs the “plain meaning” approach and interprets the terms and scope of a statute literally, without inquiring whether that literal meaning is consistent with Congress' purpose in enacting the statute, fails to respect adequately Congress' lawmaking power. For these reasons, the Supreme Court repudiated the “plain meaning” approach nearly forty years ago: “Often (the words of a statute) are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” United States v. American Trucking Ass'n, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940).

            Where plain meaning does not resolve the question, the Chevron principles direct that deference be afforded to the Secretary’s reasonable interpretation of the provision in issue. Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir 2003). It is also clear that, it is the Secretary, not the Commission, that is entitled to deference in interpreting the Mine Act. Secretary of Labor v. Federal Mine Safety & Health Review Commission, 111 F.3d 913, 920 (D.C.Cir. 1997). As the Secretary noted in its Reply Brief, “[a]s long as the Secretary’s interpretation is reasonable, it is entitled to deference even if the Court would not choose [that particular interpretation].” Sec. Reply at 5, citing Dept. Of Treasury, IRS v. Federal Labor Relations Authority, 494 U.S. 922 (1990) and Chemical Mfrs. Ass’n v. Natural Resources Defense Council, Inc., 470 U.S. 116 (1985).

The full text of 103(j) and 103(k) have been previously noted. However, for the purposes of this case, the pertinent focus is only upon the following aspects of those provisions.

In the event of any accident occurring in any coal or other mine, the operator shall notify the Secretary thereof and shall take appropriate

                        measures to prevent the destruction of any evidence which would assist

                        in investigating the cause or causes therof. . . . In the event of any

                        accident occurring in a coal or other mine, where rescue and recovery

                        work is necessary, the Secretary or an authorized representative of the

                        Secretary shall take whatever action he deems appropriate to protect the

                        life of any person, and he may, if he deems it appropriate, supervise and

                        direct the rescue and recovery activities in such mine.

Section 103(j) (emphasis added)

In the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such

                        orders as he deems appropriate to insure the safety of any person in the

                        coal or other mine, and the operator of such mine shall obtain the approval

                        of such representative, . . . of any plan . . . to recover the coal or other

                        mine or return affected areas of such mine to normal.

Section 103(k) (emphasis added)

            The Court notes that these two provisions, following one another, as they do, deal with a singular defining subject: the event of an accident. That is, in both provisions, Congress spoke to the subject of the event of an accident. “Accident,” of course, is a defined term under the Mine Act and the definition of that term provides that it includes “a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” (emphasis added). There is no dispute that the triggering phrase for these two statutory provisions, the event of an accident, was applicable here, because an ignition occurred. In fact, the event which precipitated the issuance of the (j) order in this litigation was the 22^nd (twenty second) such ignition at JWR’s Mine No. 7 in the previous 15 months.

            Focusing for the moment on section 103(j), under the terms of the provision, it is important to take note that the “[i]n the event of any accident” phrase appears twice within that single provision. By repeating that phrase, all within (j), Congress spoke to two separate classes of accidents: those where there was an accident and those where the accident also necessitates rescue and recovery work.

            The first order of business under the non-rescue and recovery accident situation, is for the operator to notify the Secretary that there has been an accident event. The same sentence continues with the requirement for the operator to “take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes therof.” Given that it is the Secretary that is to be notified of any accident, and that steps are to be taken to prevent evidence destruction, it necessarily follows that the Secretary is the principal authority to be conducting an investigation into the cause(s) of it.

            The Commission has long recognized the role of the Secretary’s principal role in such investigations. Twenty-five years ago, the Commission noted that to be the case. As they explained in UMWA V. Greenwich Collieries:

                        Orders issued pursuant to section 103(j) or section 103(k)

                        of the Mine Act, 30 U.S.C. § 813(k), are commonly known

                        as ‘control orders’ since they are the means by which the

                        Secretary may assume initial control of a mine in the event of

                        an accident in order to protect lives, initiate rescue and recovery

                        operations, and preserve evidence.

8 FMSHRC 1302, *1308 at n. 2 (September 1986) (emphasis added), 1986 WL 221618, (F.M.S.H.R.C.)

            There are two approaches to interpreting the provisions of 103(j). One, as reflected by the Commission’s decision in Greenwich Collieries, is that, in the event of an accident, the plain wording of the section gives wide berth to the Secretary to take whatever action he deems appropriate to protect the life any person. This only makes sense, remembering that starting point for both sections (j) and (k) is the event of an accident. Obviously, the first sentence of section 103(j) contemplates Secretarial dominance in the event of an accident; the mine operator must notify the Secretary and an investigation of the cause or causes is explicitly required to be performed. That this investigation is to be performed by the Secretary is clear. The Secretary is to be notified, and appropriate measures are to be taken to prevent evidence destruction.

            Those steps are not mere inferences. It would not be reasonable to conclude that the Secretary is directed to be notified simply for the purpose of being informed that an accident occurred. Nor is the provision’s directive that a mine operator is to take measures to prevent the destruction of evidence, a requirement that occurs in a vacuum. Clearly, both the notification and the preservation of evidence are imposed for the purpose of the Secretary’s investigation into the accident’s cause.

            While the first sentence of 103(j) by itself is sufficient, providing the Secretary with full authority to take appropriate actions for the purpose of investigating an accident’s cause, the third sentence, taken in a common sense fashion, can be read as a further clarification of the Secretary’s plenary authority in accident events. This is because, the third sentence again begins with the defining event which triggers the section’s applicability: the event of an accident. If the 103(j) provision were strictly about rescue and recovery work, there would be no need to express that defining application a second time.

            Read in the context of the initiating event, an accident, it only makes sense that the Secretary, the one who is to be notified, can take “whatever action he deems appropriate to protect the life of any person.” That this power is untethered to the particulars of rescue and recovery is made clear by the concluding sentence of 103(j) which provides “and he may, if he deems it appropriate, supervise and direct the rescue and recovery activities in such mine.” If the Secretary’s authority were confined to rescue and recovery particulars, the last sentence would be superfluous.

            Equally important, even if one can contend that the literal phraseology of the section does not command the conclusion stated above, it is certainly within the deference ambit of Chevron, as a reasonable Secretarial interpretation. Viewed from the obverse, no one can seriously contend that the words employed by the section prevent or preclude the Secretary’s actions here.

            The Secretary also contends that the plain language of section 103(j) does not limit its use to circumstances where the inspector is physically present at the mine. Reply at 4. The Secretary notes that, for (j), the absence of the limiting language found in sister section 103(k), wherein the requirement for presence at the mine is necessary. Instead, it is JWR that is attempting to read into the provision a requirement that an inspector must be present in order to issue a 103(j) order and that, somehow, an oral issuance of a section 103(j) order is not allowable. Reply at 5. The Court agrees.

            The Court also agrees with the Secretary’s observation that, as “[t]he first sentence of Section 103(j) requires operators ‘in the event of any accident occurring in any . . . mine’ to ‘take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes thereof’ [it follows that] [s]ince the resumption of mining and the presence of people in the affected area could destroy evidence, it is reasonable to interpret the phrase ‘[a]ppropriate measures to prevent the destruction of evidence’ to include a requirement that [,] unless MSHA gives an operator permission to do otherwise, operators must withdraw miners from the affected area until MSHA arrives on the scene to investigate.” That being the case, the Secretary maintains that prior to its arrival at the mine, it may issue orders consistent with this authority to preserve evidence, which of necessity can encompass the withdrawal of miners from the affected area. Reply at 6.

            It is also important to recognize, as the Secretary points out, JWR’s position would mean that when “MSHA is notified that an accident has occurred at the mine, [ ] MSHA cannot do anything until an MSHA inspector is actually at the mine [and during that interval] precious time can be wasted.” If JWR’s approach were accepted, it would mean that it could “act without any supervision from MSHA during an accident and its immediate aftermath” until MSHA arrived at the mine. Reply at 7. 

            The sister provision of section 103(j), section 103(k), continues the Act’s attention to the “event of any accident” at a mine. As with (j), it directs the Secretary, now present at the mine where the accident occurred, to issue such orders as he deems appropriate to insure the safety of any person in the mine. In this matter, the Secretary’s subsequent action records that the (j) order was modified to reflect that MSHA, with Inspector Turner once present at the mine, was proceeding “under the authority of 103 (k). That (k) order reminded JWR that the modification “still protects the safety and health of the miners,” but that it allowed actions to be taken by the operator with prior approval by an authorized representative of the Secretary. Order No. 8519555-01.

            With these observations in mind, this Court agrees with the Secretary’s position that once there has been an accident at a mine, and here it is again noted that there is no dispute – JWR admits there was an accident at the No. 7 Mine – in the form of an ignition – MSHA has the authority under sections 103 (j) and (k) to impose whatever reasonable measures it deems to be appropriate and necessary. To appreciate the vital need for MSHA’s authority under these provisions, it is useful to recall the core facts of March 25, 2011.

            JWR mine supervisor Keith Plylar contacted MSHA’s emergency hotline and the same individual also contacted MSHA supervisor Jacky Shubert, reporting that there had been an ignition on the number 4 section of the No. 7 mine. Supervisor Shubert, acting with caution, and proceeding under section 103(j) of the Mine Act, reminded JWR that it was obligated to preserve all the evidence resulting from the accident. Shubert then advised Plylar that he was going to send an inspector to the mine in order to confirm whether there was a necessity to continue the 103(j) order. Thereafter, MSHA inspector Joseph Turner did arrive at the mine, a mere hour and half later and, upon determining that there was no need for rescue and recovery, he withdrew the 103(j) order and replaced it with a section 103(k) order. Inspector Turner then interviewed witnesses who had information about the ignition and learned among other information that a supervisor had failed to properly monitor for methane gas while working in the number 4 of mine No. 7. As a result MSHA, acting through Inspector Turner, required all JWR employees to be trained in ignition recognition. This was prompted, in part, by the undisputed fact there had been over 23 reported ignitions in the past 15 months at the mine. Tr. 9

            It is in this context that the Court determined the reasonableness of MSHA’s action at the time that the events unfolded. Because each event of an ignition is a serious matter in its own right, what happened with prior ignitions cannot be used to confine MSHA’s ability to respond to a new ignition event. Restated, the particular circumstances of past ignitions can not tie MSHA’s hands in addressing the problem of the chronic repetition of ignitions at the Number 7 mine.

JWR is not MSHA. MSHA is MSHA.

            JWR’s fundamental misunderstanding in this case stems from its failure to recognize that the Mine Safety and Health Administration, not JWR, is charged with the enforcement of the Mine Act. Here, MSHA reasonably imposed the (j) order, and minimally interrupted part of JWR’s operations for an hour and a half. Thereafter, upon Inspector Turner completing his investigation, and upon consulting with his MSHA supervisor, imposed the training requirement associated with the (k) order’s issuance.

            Because JWR has mixed up its role with the Agency’s mandate to protect the safety and health of miners, if it had the authority, instead of MSHA, JWR would have limited the training to the 2 percent of the work force that was involved in welding, burning or soldering. Tr. 379. However, because this is up to MSHA to decide, not JWR, the agency made the reasonable decision that, in view of the high number of ignitions during the past 15 months in which the Number 7 seemed to resemble a pyrotechnics facility, it was appropriate to impose mine-wide miner training, to reduce or eliminate the ignition frequency. Although it would seem unnecessary to state the obvious, perhaps it must be recalled that mine ignitions remain a grave concern for underground coal mining. Ignitions have been associated with nearly every major coal mine disaster. Accordingly, MSHA’s decisions, acting under the authority of these provisions, is found to have been lawful. In fact, it seems reasonable to conclude that not only did MSHA not abuse its discretion, when evaluated in the context of the plethora of ignitions at one of gassiest mines in the United states, but had it failed to act in the manner in did, such inaction could have been viewed as an abuse of its discretion, and inconsistent with its mandate.

            Although JWR noted that an ignition, by itself, is not a violation of law, to the Court, rather than diminishing the importance of an ignition, that observation actually serves to underscore the importance of the (j) order, as a critical tool for MSHA to be able to employ.

As Supervisor Shubert expressed it, “[o]ne ignition is too many ignitions. And when you have 23 in a 14 period which leads the nation in ignitions, that’s when a red flag goes up.” Tr. 66            

            As the Court also explained to JWR Counsel, “not only did the Government act appropriately based on what [the Court] heard so far . . . but they should act that way . . . when they get a call and the mine says, you know, we’ve had an accident. The way that [JWR Counsel] seem[s] to be suggesting that the Government should behave . . . that . . . MSHA should behave . . . would be a recipe for second-guessing. Better to err on the side of caution until you get people out there. [MSHA] act[s] promptly, Mr. Turner doesn’t drag his feet. He switches it to a (k) order, maybe sooner than he had to, seems to [the Court to be] all very reasonable. And importantly from [the Court’s] perspective, this is a remedial act. Its intent is to protect the safety and health of miners. [MSHA’s actions in this case were] entirely consistent with that approach to err on that side in the name of what that act and its various changes have been all about.” Tr. 269.

            Further, JWR misses the larger point: ignitions, by themselves, are sufficient for MSHA to take the action it did here. JWR’s micro-managing approach would enfeeble the agency and effectively require a showing, either in the instance at hand or through prior ignitions, that there had been earlier human or property damage or some sort of commonality to the ignition causes before it could issue a (j) order. Congress could not have intended so little agency authority in the context of the relation between ignitions and mine accidents.

            Although the foregoing reasons establish MSHA’s authority under section 103(j) and (k) to deal with mine accidents, other contentions raised by JWR are now addressed, briefly.

JWR’s assertion that MSHA can look to other regulatory tools.

            JWR contended at the hearing, and in its post-hearing brief, that 30 CFR Section 50.12, a regulation applying to the preservation of evidence, is available to the agency and therefore it need not rely upon the (j) order. Tr. 95, 101. However, Supervisor Shubert observed that the regulation did not apply in the circumstances of this case. Shubert explained that the section does not apply at the moment an ignition occurs. Instead it comes into play comes into play after the fact and there is a civil penalty associated with it. Tr. 96 - 97. The Court agrees with Shubert’s point. MSHA could hardly invoke that section over the phone in response to a call that there had been an ignition. That section only can be invoked, as Shubert noted, after the fact and where it is determined that the regulatory section was violated, thereby triggering a citation or order and later a civil penalty.

The impact of the Agency’s administrative statements regarding (j) and (k) orders.

            JWR turns to JWR Ex 13 and the MSHA handbook, dated November 2000, which provides guidance for the issuance of (j) and (k) orders. Tr. 311. JWR points to the administrative guidance MSHA has issued on the subject, noting that a statement within an MSHA Handbook states that the primary purpose of a 103(j) is to prevent additional injuries when it becomes obvious that unsafe procedures are being followed. Handbook item B. Tr. 104. However, this is a selective reading from the Handbook, as JWR’s interpretation would effectively eliminate the phrase “primary purpose” and read it as if it stated that this is the “sole purpose” of a (j) order.

            Confusing its personal interpretive view with MSHA’s authority to interpret the statute, JWR contends that the MSHA handbook or policy is that a (k) order is to be “restrained to the conditions that were peculiar to the site of the flame. ” JWR Counsel assertion at Tr. 313.

            JWR also contends, in its Reply Brief, that the Secretary “cherry-pick[ed] [the] facts” and by doing so skirted the evidence showing that she violated the Mine Act and abused her discretion. The “facts” JWR contends the Secretary entirely omitted involve the (k) order issued on March 23, 2011, two days before the (k) order in issue here. Tr. 163. JWR agreed that “part” of its objection here is its contention that one can’t have another (k) order for the same (4 section) area. Tr. 163. JWR’s position is that this earlier (k) was lawful. Tr. 165. JWR Ex 21. That earlier (k) order, JWR Ex. 21, was terminated on March 29 at 8:43. Tr. 169. JWR regards the previous (k) order as “crucial” to its contention that the Secretary acted “arbitrarily and capriciously” on the theory that one (k) order issued on top of another (k) order “over the same area” operates to preclude JWR from its statutory right to review such orders for temporary relief. JWR Reply at 1-2. While offended that the Secretary did not fully address the earlier (k) order, JWR seems to be more offended that the Secretary mentioned “other, less relevant pieces of background information.” What would those “less relevant” pieces be? Those would be the 23 unplanned ignitions of methane, which JWR omits to mention occurred in the previous 15 months at the No. 7 mine. From there, JWR notes that most of those prior ignitions were not generated by welding, and that, in any event, no injuries or property damage resulted from them.

            In fact, taking a remarkable view of those 23 ignitions, JWR believes its “ignition history actually demonstrates how dedicated JWR’s personnel are to preventing ignitions . . . .” JWR Reply at 3. By that logic, the extent of JWR’s dedication to preventing ignitions would be strengthened if the number of ignitions were to increase further, a head-scratching argument to be sure.

            Responding to JWR’s (k) order argument, MSHA reminds that it can only issue a (k) order, when present at the mine. Sec. Reply at 3. The Secretary also notes that, aside from 103(k), none of the other provisions of the Mine Act which authorize inspectors to issue orders, include the phrase “when present.” Reply at 3-4. As the Secretary notes in her Reply, JWR’s claim that MSHA’s issuance of “a new (k) order instead of modifying the previous (k) order that was still in effect on the same area” deprived JWR of its right to seek judicial review of the (k) orders, is meritless. This is because MSHA’s actions did not deprive JWR of their right under Section 105(b)(2) to seek judicial review of either (k) order. Both (k) orders were modified, and therefor both were available for challenge. The Secretary further notes that the two (k) orders here were issued for different areas; one was inby, at the face and attributable to a frictional ignition, while the other, the one directly in issue here, was outby and traceable to a welding ignition. Sec.’s Reply at 7-8. Relying simply upon the fact that the (k) orders addressed different areas, the Court rejects JWR’s (k) order argument.

The contention that the agency is required to employ notice and comment rulemaking before it may utilize (j) and (k) orders in the manner used here.

            As JWR reads 103(j), MSHA’s issuance of that order, oral or otherwise, under that section is “complete unlawfulness.” JWR Br. at 9. After offering its analysis of the provision and its reading of the MSHA Handbook (JWR Ex. 13), it maintains “that (j) orders are only authorized when ‘rescue and recovery work is necessary.’” JWR Br. at 10. As this decision makes clear the Court is of the view that this is a selective reading of both sources and reaches conclusions completely at odds with the Mine Act’s purpose and MSHA’s role. While JWR notes that MSHA, since about September 2009, began a new practice of issuing (j) orders orally and remotely, upon receiving an accident notification, it complains that this policy did not undergo notice and comment rulemaking. JWR Br. at 13, JWR Exhibits, 3 & 3 B. However, notice and comment rulemaking applies to “improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines,” not for the agency’s interpretation of its statutory powers under the mine act. See, 30 U.S.C. § 811(a). MSHA’s policy regarding Section 103 (j) and (k) do not involve such matters. JWR points to no case law to support its rulemaking claim. Given that notice and comment rulemaking is for the purpose of promulgating improved safety and health standards, not for the agency’s interpretation of its statutory powers under the Mine Act, this claim of JWR is rejected.

MSHA’s requirement for miner training

            JWR also contends that the training, that is to say the “1 hour” of miner training, was an “abuse of discretion, overly broad and unnecessarily punitive.” JWR’s Ex 17, the record JWR generated on its own and which was later presented to MSHA showing the training, was offered as “evidence” of what was imposed on JWR. Of course, MSHA does not contest that it required training for the JWR miners at Mine Number 7. Part of JWR’s complaint is that, while the ignition on this occasion pertained to a welding related ignition, MSHA required training of all the miners. Tr. 288-289. This represents another instance of JWR’s confusion. It is for the Agency, not JWR to determine the scope of those miners in need of ignition training.

            In ordering that all miners be trained, Shubert noted that the training was staggered, in the sense that the day shift remained underground but that the evening shift had their training before they went underground to mine. Tr. 178. The same process applied until all were trained. Tr. 179. Thus, the “inconvenience” to coal production, imposed for the purpose of reducing the frequency of ignitions, was minimal.

JWR, again confusing that itself with MSHA, asserts that the modification of the (k) order to require mine-wide training was “overly broad” and therefore an abuse of its discretion.

            Here, despite some 23 ignitions at the mine in a 15 month span, JWR’s objection involves the agency’s modification of the (k) order “to prohibit all underground activity until all of JWR’s underground personnel had been retrained on ignition hazard recognition and prevention.” JWR Reply at 3. By its lights, even though an ignition was occurring on average about every three weeks, JWR believes that no remedial action was necessary, and as it puts it “much less something as sweeping as a production stoppage and mine-wide training.” Reply at 3. There were, JWR notes, “no injuries, entrapments, property damage, ongoing emergencies, or conditions requiring rescue and recovery work” and no violations were found. There was, however, the matter of the ignition and regular occurrence of ignitions during the past 15 months.

            JWR’s reading of Section 103(j) would allow the Secretary to issue a (j) order, only where rescue and recovery work is necessary. JWR Reply at 7. Given that Congress’ stated intention under the Mine Act was to protect miners’ safety and health, and given the central role that ignitions have played in most mine disasters, it would seem odd that Congress would provide for (j) orders only when that goal effectively has been defeated when the need for rescue and recovery has arisen. JWR’s reading would completely emasculate the provision, moving its design from prevention to recovery authority in the wake of a tragedy. In what must be a first for invoking the “remedial” nature of the Mine Act in order to reduce its effectiveness, JWR boldly contends that its constrained view of the Secretary’s authority under 103(j) will meet Congress’ intent “that the Mine Act remain truly ‘remedial legislation.’” JWR Reply at 8.

ORDER

            For the reasons set forth above, Jim Walter Resources, Inc.’s Notices of Contest, as set forth in the caption, are hereby DENIED and this proceeding is DISMISSED.

SO ORDERED.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue, North, Suite 2400, Birmingham, AL 35203

Uche Egemonye, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, SW, Room 7 T 10, Atlanta, Georgia 30303