FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

December 22, 2011

DECISION

Appearances:              Carla Casas, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia for the Respondent,.

John Holmes, Maynard, Cooper and Gale, P.C. Birmingham, Alabama for the Contestant.

Before:                        Judge Miller

This case is before me upon Contestant=s request for a hearing to challenge Order number 7699793 issued by the Secretary of Labor, acting through the Mine Safety and Health Administration, against Jim Walter Resources, Inc., pursuant to sections 105 and 107 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. '' 815 and 820 (the AAct@ or the AMine Act@). The parties presented testimony and evidence at a hearing held on November 9, 2011 in Birmingham, Alabama.

I. STATEMENT OF FACTS

Jim Walter Resources, Inc. (AJWR@) operates the No. 7 Mine, an underground coal mine located in Brookwood, Alabama. The parties have stipulated that the mine is subject to the jurisdiction of the Mine Safety and Health Act of 1977, as amended, that JWR is an operator of a coal mine, and that the ALJ has jurisdiction to hear this matter. Sec=y Stip 1-7; (Tr. 9). The mine is subject to regular inspections by the Secretary=s Mine Safety and Health Administration (AMSHA@) pursuant to section 103(a) of the Act, 30 U.S.C. ' 813(a), as well as five day spot inspections due to the quantity of methane liberated at the mine. (Tr. 34).

On February 14, 2011, MSHA inspector Alveriado Lee Getter issued imminent danger order number 7699793, as follows:

This imminent danger order is issued to remove all mine personnel from the area of the last open crosscut intersection (spad 23456) in the No. 2 entry of the No. 8 section (MMU-008-0). When checked a cavity in the roof measuring approximately 10 feet wide by 15 feet long with a smaller cavity in the very top measuring 3 feet in diameter by 18 inches deep allowed methane levels to reach 5.6%. Power was immediately removed from the section and all miners were removed from the area except those needed to improve ventilation.

In addition to the imminent danger order, Getter simultaneously issued a citation for a violation of the ventilation control plan. JWR did not contest the S&S violation that was issued and, therefore, JWR has agreed that an S&S violation ocurred as a result of the conditions observed by Getter. Sec=y Ex. 2; (Tr. 22-23, 32). Hence, the mine has conceded that, as a result of the violation, which led to a methane accumulation, there was a reasonable likelihood that a serious injury would occur. However, the mine does not admit that an imminent danger existed. There is no dispute that the level of methane, 5.6 percent, was present as set forth in Getter=s order. (Tr. 24)

Inspector Getter is currently an acting field office supervisor. Prior to such, he worked at the MSHA district office as a ventilation specialist, where he reviewed ventilation plans and worked with mines on issues involving ventilation and bleeder systems. He has been an inspector with MSHA for six years. He has had regular inspector training, accident investigation training, and annual ventilation training. He has conducted many inspections at the JWR mines, particularly the No. 7 mine, and is familiar with the ventilation plan for the JWR No. 7 mine.

The JWR No. 7 mine is a gassy mine that liberates more than one million cubic feet of methane in a 24 hour period and, as a result, is on a five day spot inspection. (Tr. 34). The mine has had a problem with ignitions, particularly in the one year period preceding the subject imminent danger order issued by Getter. Getter was aware of the prior ignitions at the mine as a result of discussions held in the MSHA office. Consequently, there was a heightened awareness at the mine due to the frequent, unforeseen ignitions of methane. The ignitions, which began in January 2010, continued until the date of the order on February 14, 2011. Sec=y Ex. 5. Five ignitions, which occurred within a short period of time, were caused by the continuous miner drilling into hard rock in the No. 8 section. ( Tr. 44).

Getter was at the No. 7 mine on February 14, 2011 to conduct a spot inspection and, after reviewing the books and speaking with representatives of the mine, he traveled to the area where production was scheduled for the day. Vicki Dempsey, a health specialist, was also at the mine for the purpose of collecting dust samples in the production area of the No. 8 section. As Getter approached the No. 8 section, he could hear the energized continuous miner and observed that there was a miner operator, a helper, an electrician, two roof bolters, two shuttle car operators, and a supervisor; at least 10-12 persons, working in the area. The continuous mining machine was at the face of the No. 2 entry, and the roof bolter was nearby in the last open crosscut between the Nos. 2 and 3 entries. Getter created a diagram in his inspection notes that depicts the location of the various pieces of equipment in the area. Sec=y Ex. 1 p. 4; (Tr. 50-51).

As Getter initially entered the area, he noticed that, due to sloughing, there was a loose rib with a dangling pin. He advised the miners on the section to have a look at the loose area before it became a hazard and a possible violation. (Tr. 51). The supervisor agreed and instructed the operator to back the miner out of position at the face in order to allow the roof bolter to pass. Once the continuous mining machine was backed out, Getter noticed and then approached a roof cavity that was located just behind where the miner had been, near the intersection, about 40 feet back from the face. Getter asked the miner operator to use his probe to take an air reading in the cavity. The cavity was 15 feet by 10 feet wide, and contained another smaller cavity within it that was approximately 18 inches deep. (Tr. 52). In the area where the miners were working, the distance to roof line was approximately 7 to 7 ¹/₂ feet, and the cavity at the farthest point was 13 feet above the floor. Simple math indicates that the depth of the cavity was about 5 ¹/₂ feet, with 18 inches of that amount in the upper cavity.

The miner operator raised the big-face methane detector and, before extending very far into the first, larger cavity, the methane reading shot up to 4.6 percent. The miner operator quickly pulled the probe back in order to avoid the possibility of burning out the detector in the face of quickly rising gas levels. The miner operator attempted a methane reading twice. The first time he attempted a reading, the probe was about half way into the main cavity when it shot up. The second time, the detector was pushed to the edge of the second cavity, which would have been about four feet above the roof line, and the reading showed at least 5.6 percent methane. Getter observed a greater reading at one point but settled on the 5.6 percent methane concentration, as observed by the miner operator. (Tr. 58). Getter testified that he observed a higher reading and he believed that the methane may have actually been at a greater level due to the height of the cavity. He confirmed his belief with a bottle sample that showed a methane level of 9.110 percent. Sec=y Ex. 3; (Tr. 68).

Getter explained that a methane concentration over 5 percent is in the explosive range. While methane may ignite at 1 percent, things change dramatically when the reading is over 5 percent. There is no longer simply a danger of ignition. Rather, there is the potential to ignite an explosive mixture of methane and other gasses. With the high level of methane, everything becomes an ignition source. Getter explained that all that is needed for ignition is the slightest friction; even clothing static. (Tr. 60-61). The atmosphere is fragile in that range and when it is in the last open crosscut, with men and equipment working and actively mining, the danger is great. The working face was 40 feet from explosive mixture, and the mining machine was prepared to begin cutting coal. The continuous miner alone has many moving parts that are a source of sparks and heat. The roof bolter is the same, and it was energized and moving through the area to begin roof bolting a rib, the process of which can also be a source of sparks. If the bolter had pinned the area pointed out earlier by Getter, it would have been operating Aright next to this pocket of methane.@ (Tr. 63). In fact, Getter explained, the roof bolter is known to be one of the primary sources of ignitions in underground coal mines. Moreover, the last open cross cut is the busiest area, with many miners traveling in, out, and through the area, and is also an area with energized equipment and cables. A fall of roof can also serve as a source of ignition. Notably, a fall, which created the cavity, had occurred within the previous few days. Getter described the scene as Avery volatile@ and sensitive; Aa ticking time bomb.@ (Tr. 64). As a consequence, Getter verbally issued an imminent danger order, instructed the supervisor to power down the entire section and, with the exception of those needed to dilute the methane and return the section to a safer environment, removed the miners from the section.

The crew began working to re-ventilate the cavity area and, in doing so, took a number of methane readings, all of which indicated methane at explosive levels. The mine eventually had to loosen the curtain that had been directing air to the cavity and place an additional piece of curtain to circulate an even greater volume of air up to the roof. With the additional ventilation to dilute the air in the cavity, it took approximately two hours to dilute the methane levels to below 1 percent.

The mine operator called a number of witnesses to describe what occurred during Getter=s inspection. For the most part, the witnesses agreed with Getter and with the fact that there was an explosive mixture of methane in the roof cavity. The witnesses explained that, as a result of a roof fall, the cavity had developed within the previous few days, and that on the shift prior to the subject shift the miners had problems with the methane concentration in the cavity. (Tr. 158, 202) A blower curtain had been installed to divert air to dilute the methane in the cavity. (Tr. 160). The witnesses explained that at least a portion of the cavity was rock, as opposed to coal, and at no time did a methane alarm sound. Moreover, they testified that there was not a concentration in the explosive range below the roof line of about seven feet off the floor.

The JWR witnesses disagreed with Getter on how far into the cavity the monitor was placed before an explosive range of methane was detected. For example, the section coordinator, Woods, testified that he observed no elevated methane above 1 percent at the roof line, and that the higher concentrations were not reached until the probe entered the higher, smaller cavity, which would have been four feet above the roof line. Woods, who was responsible for checking the area prior to mining, had not used a probe on the preshift examination to check inside the cavity, but instead simply reached up as high as he could, maybe 7 or 8 feet off the ground, and found no methane problems. (Tr. 167). Still, Woods agreed that the methane levels were high and increased as the probe was lifted into the cavity. Langford, the miner operator, testified that he did his regular methane checks prior to starting the continuous miner and did not hear or see any alarm from a methane monitor on the day of the order. He agreed with Woods that the methane concentration was less than 1 percent below the roof line and that it went up to 4 or 5 percent in the upper cavity. Langford stood on the miner to take methane readings in the cavity as the miners attempted to dilute the methane, but it appears that no one measured the methane in the cavity prior to Getter=s arrival. Finally, the safety supervisor, Al England, disagreed with the designation of the situation as an imminent danger. He was not aware of any ignition sources, and the methane below the roof line was within permissible range. (Tr. 228). According to England, he observed the readings within the explosive level only after the readings were taken in the upper cavity. England further testified that, after learning of the 4.6 percent reading, he instructed the miner helper to go back to the power center and Aget somebody to knock the power off to the section . . . .@ (Tr. 228). England believed that he took the action prior to the issuance of the 107(a) order by Getter.

Finally, the witnesses for JWR testified that they did not observe problems with the cables on the section or the continuous mining machine that would lead them to believe a spark would be generated. They did agree that a number of occurrences in the area, like cutting into rock or having an antenna scrape on the roof, or even a roof fall, can lead to an ignition. The three witnesses called to testify on behalf of JWR explained that, in their recollection, the section had not yet cut coal when Getter arrived. However, it is undisputed that the equipment was energized and the mine was preparing to produce coal. (Tr. 163) (Aby the time we got ready to start running . . .@).

II. DISCUSSION AND CONCLUSIONS OF LAW

On February 14, 2011, Inspector Getter issued Section 107(a) withdrawal, first verbally, and then Order No. 7699793 directing Jim Walters to cease mining operations in the referenced areas upon the basis of a measured methane concentration of 5.6 percent inside a roof cavity. The top of the cavity was located approximately 13 feet above the ground, and the distance from the ground to the primary roof line was 7 to 7 ¹/₂ feet, leaving a cavity of about 5 ¹/₂ feet above the roof line. Section 107(a) of the Mine Act provides:

If, upon any inspection or investigation of a coal or other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons, except those referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and the conditions or practices which caused such imminent danger no longer exist. The issuance of an order under this subsection shall not preclude the issuance of a citation under section 104 or the proposing of a penalty under section 110.

30 U.S.C. ' 817(a). Section 3(j) of the Act defines Aimminent danger@ as the Aexistence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.@ 30 U.S.C. ' 802(j). As previously noted, Section 107(a) of the Act provides for the issuance of an order requiring the withdrawal of persons in areas of a mine who are exposed to such an imminent danger.

Imminent danger orders permit an inspector to remove miners immediately from a dangerous situation, without affording the operator the right of prior review, even where the mine operator did not create the danger and where the danger does not violate the Act or the Secretary=s regulations. This is an extraordinary power that is available only when the Aseriousness of the situation demands such immediate action.@

Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting Sen. Rep. No. 91-411, reprinted in Senate Subcomm. On Labor, Comm. on Labor and Public Welfare, Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 215 (1975).

An imminent danger exists Awhen the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated.@ Eastern Associated Coal Corporation v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974). The Seventh Circuit adopted the same interpretation in Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 33 (7th Cir. 1975). See also Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)). While the concept of imminent danger is not limited to hazards that pose an immediate danger, Aan inspector must >find that the hazardous condition has a reasonable potential to cause death or serious injury within a short period of time.=@ Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006) (quoting Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991)). Inspectors must determine whether a hazard presents an imminent danger without delay, and a finding of an imminent danger must be supported Aunless there is evidence that [the inspector] had abused his discretion or authority.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2164. While an inspector has considerable discretion in determining whether an imminent danger exists, that discretion is not without limits. An inspector must make a reasonable investigation of the facts, under the circumstances, and must make his determination on the basis of the facts known, or reasonably available to him. Island Creek Coal Co., 15 FMSHRC 339, 346-347 (March 1993).

An inspector Aabuses his discretion . . . when he orders the immediate withdrawal of miners under section 107(a) in circumstances where there is not an imminent threat to miners.@ Utah, Power & Light Co., 13 FMSHRC at 1622-23. In assessing an inspector=s exercise of his discretion, the focus is on Awhether the inspector made a reasonable investigation of the facts, under the circumstances, and whether the facts known to him, or reasonably available to him, supported the issuance of the imminent danger order.@ Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992).

In this case, Inspector Getter had inspected the No. 7 mine many times and was aware of the unusual number of ignitions at the mine in recent months and particularly in the No. 8 section. He is a ventilation expert, and is aware that methane above 5 percent is volatile and explosive. Moreover, he was aware of the number of ignition sources in the area, including the energized continuous miner that either had been cutting at the face or was about to cut into the face, the energized roof bolter, the shuttle cars, and the energized cables. He believed, as he described on cross examination, that the cables have been known to create an arc that reaches as high as the roof. He also explained that static from clothes can act as a source of ignition. Getter was not aware that the machinery in the area had been inspected the night prior and no citations were issued for permissibility violations. However, even if he had known, he opined that it would have no effect on his reasoning regarding the imminence of the situation given the many pieces of machinery in the immediate area that were energized and moving. Getter also considered that cutting coal creates a source of ignition, as does roof bolting and loading coal into the shuttle cars. He reasoned that all these processes generate heat and are ignition sources for an explosive mixture of methane. Finally, Getter believed that the 5.6 percent was only the beginning, and that the mixture was of a greater concentration closer to top of the roof cavity. The explosive mixture of methane was located very near the face, in the area where there were many possible sources of ignition which would create an explosion. I find Inspector Getter to be convincing, reliable, and objective in his reasoning and more credible than any witness presented by the mine operator. I find his conclusions regarding the condition of the section and the volatile nature of the methane to be well reasoned and based upon his knowledge of the area and the volatile nature of methane at explosive levels. Getter adequately examined the area in order to gather sufficient evidence to reach his conclusion and issued the order based upon his good faith belief that in the continued course of mining, the methane would be part of an explosion that would lead to serious and fatal injuries. I agree with Getter that the seriousness of the situation demanded immediate action from the inspector. Hence, I find that the imminent danger order was properly issued.

The mine raises two primary arguments to dispute the issuance of the order. First, it argues that there was no imminent danger because there were no ignition sources, and even if there were, the methane reached the explosive range only in the highest portion of the cavity, i.e., about 11 feet above the floor and beyond the reach of the possible sources of ignitions. Second, the mine argues that the order is redundant because the mine would have had to remove men and power from the section in order to comply with 30 C.F.R.' 75.323, which requires mine operators to de-energize equipment, withdraw workers, and make ventilation changes if methane at 1.5 percent is discovered. In raising this argument, JWR relies on Woods= testimony that, given the level of methane, he removed the men from the area because he is required to do so by regulation.

First, although JWR admitted a significant and substantial violation occurred as a result of the methane in the cavity, it denies that there was an ignition source nearby and, therefore, it argues that there was no Aimminence@ to the danger. While Getter testified that he heard the continuous miner operating as he entered the section, the witnesses for the mine testified that they had not yet started coal production when Getter arrived, but they were preparing to do so. The cavity was located near the No. 2 entry, in a very busy area, with equipment moving through, a continuous miner prepared to cut coal, and a roof bolter prepared for operation. There were shuttle cars being operated, and a flow of men and machines was moving through the area. The mine denies that any of these constitute a possible ignition source, or at a minimum, the ignition source would not reach the explosive mixture of methane above the roof line in the cavity.

The mine argues that all equipment was in permissible condition, that the energized cables were not in an area near enough to the methane, and it was not likely that an ignition would occur. The mine cites Island Creek Coal Co., 15 FMSHRC 339 (1993), for the proposition that an ignition source must be present to support an imminent danger order. While, the mine does not deny that ignition sources may have been present in the No. 8 section, it is the mine=s position that none of those sources would be exposed to the high level of methane in the cavity and hence the exposure required by Island Creek is not proven in this case. First, I disagree factually that the methane in the cavity is too remote to be exposed to an ignition source. The air in the cavity was not being adequately diluted, as is evidenced by the high levels of methane that remained. Given the continued course of mining, the methane would have migrated to other areas, pushed along by air that was not able to adequately dilute the mixture. Although the electrical cables were on the ground, the other equipment, particularly the roof bolter, was or would shortly have been, working at the roof level, very near to the elevated methane levels.

The Secretary argues, and I agree, that the Island Creek decision is a narrow one and should not be relied upon for the proposition put forth by JWR. The Commission clearly explained that the Island Creek decision was limited to the facts of that case as they related to methane levels in the gob. In this case, unlike Island Creek, the methane levels were found very near the working face, with many machines and miners traveling and working in the area. In addition, Getter credibly described the many possible ignition sources he observed and, in his experience, those ignition sources, mixed with the high concentration of methane, were a formula for an immediate, life-threatening event.

Next, the mine argues that Getter abused his discretion because the mine was required to withdraw from the area once the methane reached 1.5 percent. It is the position of JWR that since 30 C.F.R ' 75.323(b)(2) requires the mine to withdraw persons working at the face back to the last open crosscut and de-energize equipment if a methane level of 1.5 percent or greater is

discovered, there was no need for an imminent danger order. I disagree with the reasoning of the mine.

The Commission and Courts have held that an imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated. See Rochester & Pittsburgh Coal Company v. MSHA, 11 FMSHRC 2159, 2163. Courts have interpreted the definition of imminent danger to exclude consideration of abatement time. Judges should analyze hazards without assuming that they will be automatically abated. Id. The very case upon which the company relies for its explanation of 107(a) outlines the precautionary principle at work in that section of the Mine Act, holding that Athe removal of miners from the perceived imminent danger is the paramount concern.@ Wyoming Fuel Company, 14 FMSHRC 1282, 1292. Hence, even if there is a regulatory standard that requires withdrawal from the area, using the tool of an imminent danger order is not an abuse of discretion.

I do not agree that JWR was in the process of removing power or men from the area when the verbal order was issued by Getter. However, even if they were in the process of abating the violative condition, Inspector Getter was justified in issuing the imminent danger order in the interests of protecting them from the danger he observed. First, Getter was not aware, and saw no evidence at the time he issued the order, that miners were being voluntarily withdrawn from the area. Next, Getter explained that the standard=s requirement to withdraw miners is a burden on the mine operator, and not on the inspector. That standard is directed to the mine operator, and the role of the inspector is to issue a citation or order if the mine does not comply. Here, Getter issued no such citation and, therefore, it cannot be said that duplicative citations were issued. The Western Fuels case cited by JWR is instructive in this regard. In that case the Commission determined that citations are not duplicative as long as the standards involved impose separate and distinct duties on an operator. Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003-04 (June 1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar. 1993); Southern Ohio, 4 FMSHRC at 1462-63; El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (Jan. 1981)). Here, the imminent danger authority granted by the Act, and the requirement of the standard to withdraw miners, impose separate duties on the operator and MSHA, and not on the operator alone. Thus, the responsibilities are not identical and are directed at different entities.

Finally, I find that Getter issued the imminent danger order based not only on the level of methane, but also the ignition sources and the exposure to miners. He did not, as the mine asserts, use a per se rule of 5 percent methane. Consequently, I find no need to address the argument that using a per se rule is an abuse of discretion. Also, in reaching my decision upholding the imminent danger order, I did not find the history of assessed violations to be relevant and did not rely upon that exhibit except to confirm the assertions of JWR that they had not received any permissibility violations during an inspection conducted the day prior to this one. See Sec=y Ex. 6; (Tr. 18-19). Instead, I credit the testimony of Inspector Getter and rely upon his observations at the time, his knowledge of methane and the conditions of the mine, and his understanding of the importance of immediately removing men from the area given the dangers he observed. For the above stated reasons, I find that the Secretary has demonstrated by a preponderance of the evidence that Getter did not abuse his discretion and the imminent danger order stands as issued.

                                                                                    /s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution: (Certified Mail, RRR)

Carla Casas, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., Room 7T10, Atlanta, Georgia 30303

John B. Holmes III, Maynard, Cooper & Gale, P.C., 1901 Sixth Ave., North, 2400 Regions Harbert Plaza, Birmingham, Alabama 35203