Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources sought summary decision on an order alleging that the company violated the Mine Act and its approved fire-fighting and evacuation plan during events involving roof conditions, methane, and a mine emergency at No. 5 Mine in Alabama. Judge David F. Barbour held that the cited emergency standard applied to explosion-related emergencies and that the approved plan was enforceable as a mandatory safety standard. He denied summary decision because material facts remained disputed about whether the company followed the plan and whether the alleged violations occurred. The merits of the alleged violations were left for trial.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.1101-23(a); 29 C.F.R. § 2700.67
• Outcome: Jim Walter Resources’ motion for summary decision was denied.
• Key point: An approved mine emergency plan can be enforced as a mandatory safety standard, but disputed facts require a trial rather than summary decision.

Full text (FMSHRC public release)

JIM WALTER RESOURCES, INC. -- July 2, 2004

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES

          601 New Jersey Avenue, NW, Suite 9500

                  Washington, DC   20001

                      July 2, 2004

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 2003-160
Petitioner : A.C. No. 01-01322-00004
v. :
: Docket No. SE 2003-161
JIM WALTER RESOURCES, INC., : A.C. No. 01-01322-00005
Respondent :
: No. 5 Mine

ORDER DENYING JIM WALTER RESOURCES' MOTION FOR SUMMARY DECISIONIn these cases, the Secretary of Labor ("Secretary") on behalf of her Mine Safety and
Health Administration ("MSHA"), alleges that Jim Walter Resources, Inc. ("JWR") violated
twenty-six mandatory safety standards promulgated pursuant to the Federal Mine Safety and
Health Act of 1977. 30 U.S.C. � 801, et seq ("The Act"). The alleged violations are contained in
citations and orders of withdrawal issued pursuant to sections 104(a) and 104(d) of The Act. 30
U.S.C. �� 814(a), 814(d). Jim Walter Resources objects to the issuance of one of the orders
Order No. 7328082 and moves for summary decision, pursuant to Commission Procedural
Rule 67, 29 C.F.R. � 2700.67. JWR argues the undisputed material facts establish that the
underlying standard cited in the order does not apply. For the reasons set forth below, Jim
Walter's motion is denied.

                         FACTS 1

 JWR's No. 5 Mine is located in Tuscaloosa County, Alabama.  Approximately 250

miners are employed at the mine. At the time of the events at issue, the mine operated 3 shifts a
day. On Friday September 21, 2001, while the No. 4 Section of the mine was idle for
maintenance, a crack in the roof was observed. In addition, a noise was heard and water was
seen dripping from some of the roof bolt holes in the No. 2 Entry of the section, near the scoop
battery charging station. (Resp't's Bf. Ex. 2 at 1). The section coordinator directed Tony Key,
section foreman, to have supplemental roof support installed throughout the area. About 16, 10
foot long cable bolts were installed during the day shift on September 21. Methane, water,
broken coal and broken shale were encountered above the anchorage zone of the primary roof
supports. Because of the poor roof conditions, the cable bolts proved ineffective to support the
roof, and on Sunday, September 23, a roof fall occurred near the scoop battery charging station.
(Resp't's Br. Ex. 2 at 1).

 When the roof fell, methane was liberated from the roof strata into the section's entries.

This occurred at approximately 5:17 p.m., minutes before an initial explosion. The arching of a
scoop battery that was damaged by the roof fall is believed to have ignited the methane. The
explosion damaged critical ventilation controls and disrupted the airflow in the section. It also
injured four miners.

 Three of the injured miners left the No. 4 Section.  The fourth was too badly hurt to be

moved. Twelve other miners came into the area in an attempt to rescue the fourth miner and
respond to the emergency situation. Other miners not responding to the explosion were not
evacuated from the mine, even though the explosion damaged critical ventilation controls. At
approximately 6:15 p.m. a second explosion occurred, leaving thirteen miners dead.

 After the incidents, the Secretary conducted an extensive investigation.  The investigation

resulted in MSHA charging JWR with numerous violations, including that set forth in Order No.
7328082. The order states:

On September 21, 2001, two separate explosions occurred in 4 Section, resulting in fatal
injuries to thirteen miners. The accident investigation revealed a proper evacuation
procedure was not followed after the first explosion on 4 Section. Miners were not
evacuated from the mine after an explosion damaged critical ventilation controls. These
conditions were known by, and communicated to, management personnel including the
CO Room Supervisor. The section foreman believed there was a possibility of explosion
and did not effectively communicate this information to other miners. Miners from other
areas of the mine responded to the emergency on 4 Section believing either an ignition or
a fire had occurred. These miners were unaware an explosion had occurred and a second
explosion was possible. Miners underground were not alerted to the problem through the
mine wide telephone paging system. Also, management directed 7 additional miners to
join the 13 miners already in 4 Section.

 The order cites a violation of Section 75.1101-23(a) 2, which at the time the order was

issued read as follows:

 Each operator of an underground coal mine shall adopt a program for the instruction of all
 miners in the location and use of fire fighting equipment, location of escapeways, exits,
 and routes of travel to the surface, and proper evacuation procedures to be followed in the
 event of an emergency. Such program shall be submitted for approval to the District
 Manager of the Coal Mine Health and Safety District in which the mine is located no later
 than June 30, 1974.3

             STANDARD FOR SUMMARY JUDGMENT

 Commission Rule 67 provides: "A motion for summary decision shall be granted only if

the entire record including the pleadings, depositions, answers to interrogatories, admissions, and
affidavits shows: (1) That there is no genuine issue as to any material fact; and (2) That the
moving party is entitled to summary decision as a matter of law."

                    JWR'S ARGUMENTS

 JWR argues that Section 75.1101-23(a) did not govern its actions on September 23, 2001,

after the first explosion. It is JWR's belief that the standard expressly applied "only to
emergencies involving underground fires." (Resp't's Br. at 9). JWR notes that the standard was
located in Subpart L of the mandatory safety standards for underground coal mines. This subpart
was titled "Fire Protection." JWR contends that the "purpose of the program of instruction for
'evacuation procedures' referenced in � 75.1101-23(a) must be to address fire emergencies, not
other emergencies that could occur in an underground mine." (Resp't's Br. at 10).

 Second, JWR argues that its MSHA approved Fire Fighting and Evacuation Plan (the

"Plan") only applies to fire emergencies. JWR cites the language of the Plan to illustrate "its
exclusive focus on preparing for and responding to fire emergencies." (Resp't's Br. at 15)
(emphasis in original).

 Third, JWR argues that "MSHA's post-accident issuance of an emergency temporary

standard ('ETS') and final rule broadening the scope of the program of instruction under �
75.1101-23(a) further confirms that, when the JWR explosion occurred, the requirements of [the
standard] were limited to fire emergencies." 4 (Resp't's Br. at 16). JWR believes that this
"broadening" of Section 75.1101-23(a) indicates the standard was not inclusive enough to cover
the events that occurred on September 21, 2001.

 Moreover, JWR argues that even if Section 75.1101-23(a) "could somehow be construed

to apply to events that were not fire emergencies," the company was in compliance with the
standard. JWR states that by having a Fire Fighting and Evacuation Plan ("Plan") that was
approved by MSHA, it satisfied the requirements of Section 75.1101-23(a). JWR also states that
it "did follow the Plan and the miners' actions in response to the explosion were consistent with
[the] training and instruction" they received under the Plan's "program of instruction." (Resp't's
Br. at 20).5

                 SECRETARY'S ARGUMENTS

 The Secretary submits that Section 75.1101-23(a) "is plainly worded and was intended to

protect miners against hazards by requiring, without limitation, evacuations in mine
emergencies." (Pet'r's Br. at 9). Accordingly, the Secretary states that "[i]f the meaning of a
regulation's language is plain, the plain meaning of the language is controlling and the regulation
cannot be interpreted to mean something else." (Pet'r's Br. at 10). Thus, the word "emergency"
in the standard is not limited to "fire emergency."

 Alternatively, the Secretary argues that even if the meaning of the standard is ambiguous,

there are "two additional rules of regulatory construction [that] compel the court to find the
standard applies to explosion related emergencies." (Pet'r's Br. at 11). First, on May 8, 1995,
MSHA published an abstract stating that Section 75.1101-23(a) "'requires each operator of an
underground coal mine to adopt a program for mine evacuation in the event of an emergency,
such as a fire or explosion'" (Pet'r's Br. at 13) (quoting 60 Fed. Reg. 23567 (1995)). This
interpretation of Section 75.1101-23(a) was reasonable and entitled to deference. Second,
"safety legislation and regulations must be constructed broadly to effectuate their purposes," and
"[s]ince the purpose of the evacuation provisions [was] to prevent loss of life during
emergencies," the Secretary's broader interpretation should be accepted." (Pet'r's Br. at 14).

                        ANALYSIS

         Applicability of Section 75.1101-23(a)

 Based on the facts as presently revealed in the record, I conclude it was not improper for

MSHA to cite JWR for a violation of Section 75.1101-23(a). I am not swayed by JWR's
argument that the standard only applies to fire emergencies, and I am persuaded by the
Secretary's argument that the meaning of the standard is plain, and so must be enforced as
written.

 As has been observed by the Commission, the language of many standards is "simple and

brief in order to be broadly adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC
2496, 2497 (November 1981); Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December
1992). "Such broadly written standards must afford reasonable notice of what is required or
proscribed." Palmer Coking Coal Co., 22 FMSHRC 887 (citing U.S. Steel Corp., 5 FMSHRC 3,
4 (January 1983)). In order "to pass constitutional muster, a statute or standard adopted
thereunder cannot be 'so incomplete, vague, indefinite or uncertain that men of common
intelligence must necessarily guess at its meaning and differ as to its application.'" Ideal Cement
Co., 12 FMSHRC 2409, 2416 (quoting Alabama By-Products Corp., 4 FMSHRC 2128, 2129
(December 1982) (citations omitted)). A standard must "give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act accordingly." Lanham
Coal Co., 13 FMSHRC 1341, 1343 (September 1991).

 When faced with a challenge that a safety standard failed to provide adequate notice of

prohibited or required conduct, the Commission has applied an objective standard, i.e., the
reasonably prudent person test. BHP Minerals Int. Inc., 18 FMSHRC 1342, 1345 (August 1996).
The Commission summarized this test as "whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC at 2416.

 "In evaluating whether a reasonably prudent person familiar with the mining industry and

the protective purposes of the standard at issue would have recognized the applicability of the
standard to the cited facts at issue, the Commission has analyzed a number of factors including
the ordinary definition of the terms of the text of the regulation at issue, the consistency of the
Secretary's enforcement, and whether MSHA has published notices regarding its interpretation
[sic] the standard in question." Western Industrial, Inc., 24 FMSHRC 269 (March 2002).
(citations omitted).

 Here, application of the test requires determining whether a reasonable operator would

have concluded that an explosion was the kind of emergency event referenced in Section
75.1101-23(a), and I conclude that it would.

 I find JWR's attempt to differentiate between a fire and an explosion to be a distinction

without difference. I concur with the Secretary's statement that "explosions and fires are similar
in nature and present similar hazards to miners underground." (Pet'r's Br. at 15). I agree with
the Secretary that "it is reasonable to anticipate that a fire could create an explosion risk and an
explosion could create a fire risk." (Pet'r's Br. at 15). This is because fires and explosions are
fundamentally interrelated. According to the Dictionary of Mining, Mineral and Related Terms,
an explosion is "a rapid oxidation, accompanied by heat and flame, of firedamp, coal dust, or
other strongly flammable material, resulting in a great and sudden development of gases and
pressure."; while a fire is " the manifestation of rapid combustion or combination of materials
with oxygen." U.S. Dept. Of Interior, Bureau of Mines 402, 429 (1968).6 These two events are
so intertwined, I conclude it is eminently reasonable to view the "emergency" referred to in the
standard as inclusive of an explosion. In other words, it is reasonable to apply the standard to
both occurrences.

 Given this interpretation of the standard, I find its placement in Subpart L logical, and I

reject JWR's suggestion that the placement of the standard and its regulatory context restricts it
to fires only and excludes explosions. (Resp't's Br. at 13) (citing Phelps Dodge Corp. v.
FMSHRC, 681 F.2d 1189, 1192 (9th Cir. 1982)).

           Lack of Undisputed Material Facts

 Since Section 75.1101-23(a) applies to explosion-related emergencies, the question is

whether JWR followed its MSHA approved Fire Fighting and Evacuation Plan on September 23,
2001. However, the question can not be answered at this time because there are material facts in
dispute that are essential in making this determination.

 It is established law that once a plan is approved and adopted, its provisions are

enforceable at the mine as mandatory safety standards. See Cf. VP-5 Mining Co., 14 FMSHRC
1033, 1036-37 (June 1992) (citations omitted). As noted earlier, Order No. 7328082 charges
JWR with allegedly failing to comply with its Plan. Specifically, the Secretary cites the
following as alleged violations of the Plan: failure to evacuate No. 4 Section when the CO
monitors started sending signals, failure to properly investigate the emergency as provided in the
Plan, and sending poorly informed miners into No. 4 Section before the second explosion.
(Pet'r's Br. 33-34). JWR contests these allegations and argues that it did follow the Plan. Given
the disputes over the applicable provisions of the Plan and whether they were violated, the
Secretary will have to prove the alleged violations of the Plan at trial, either through documentary
evidence or testimony, or both. JWR can rebut the Secretary's case by showing the particular
events of September 21 that the Secretary contends contravened the Plan either did not occur or
were not contrary to the provisions of the Plan. Therefore, a trial is necessary to determine the
outcome of this issue.

                         ORDER

 For the reasons stated above, I find that Section 75.1101-23(a) was correctly cited.  I

further find that there are material facts in dispute, and a determination of the facts must be made
to determine if the standard was violated. Accordingly, the Motion for Summary Decision by
JWR is DENIED.7

David F. Barbour

Administrative Law Judge
(202) 434-9980

Distribution: (Certified Mail)

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd.,
22nd Fl., Arlington, VA 22203

Judith Rivlin, Associate Regional Counsel, UMWA Headquarters, 8315 Lee Highway, Fairfax,
VA 22031-2215

Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring, LLP, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004-2595

David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North,
2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2618

FOOTNOTES:

1 The facts are derived from factual statements in the parties� briefs.

2 As discussed more fully below, this regulation was later amended and republished as 30 C.F.R. �75.1502 (2003).

3 On September 21, 2001 a plan approved by MSHA was in effect at the No. 5 Mine.

4 The ETS addressed a deficiency in the relevant MSHA policy. MSHA stated it recognized that Section 75.1101-23(a) "did not adequately address responsibilities of the responsible person on the surface and the responsible person under ground" in the event an emergency evacuation was necessary. (Resp�t�s Br. Ex. 4 at 57). Therefore, the ETS required mine operators to designate a responsible person at the mine to take charge during mine fire, explosion, and gas or water inundation emergencies. This person was responsible for not only making the decision to evacuate, but also coordinating evacuations. MSHA further stated that "[t]he ETS . . . provide[d] that only properly trained and equipped persons essential to respond to the mine emergency may remain underground." (Resp�t�s Br. Ex. 4 at 57). The ETS "also broaden[ed] the existing requirements for a program of instruction for firefighting and evacuation to address fire, explosion, and gas or water inundation emergencies." (Resp�t�s Br. Ex. 4 at 57).

5 JWR also argues that the "Secretary�s interpretation of the regulation and Plan, even if permissible, is unenforceably vague" and fails to provide the notice required to support imposition of a civil penalty. (Resp�t�s Br. at 27). Given my conclusions on the proper interpretation of the standard, I need not address this issue. (See infra pp. 6-8).

6 The similarity between a fire and an explosion is noted in the Report created by JWR�s expert Malcolm J. McPherson. He states that "[i]t is probable that [the] second ignition of methane resulted in the propagation of flaming" and "[t]he flame would then accelerate into a gas explosion."(Pet�r�s Br. Ex. J at 46).

7 JWR has directed my attention to a recent decision by the Court of Appeals for the District of Columbia Circuit regarding regulatory interpretation. Association of Civilian Technicians, Wichita Air Capital Chapter v. FLAR, 360 F.3d 195 (D.C. Cir 2004). Given my conclusions on the plain meaning of Section 75.1101-23(a), I find the case, which concerns among other things a discussion of broad versus strict construction of a standard, inapposite.