Secretary of Labor v. Jim Walter Resources, Inc.

Plain-English summary

An MSHA inspector found 5.6 percent methane in a roof cavity in an active section of Jim Walter Resources' No. 7 Mine. Nearby roof-bolting work, a continuous miner, energized equipment, cables, and a recent roof fall supplied potential ignition sources. The Commission held that substantial evidence supported the inspector's imminent-danger determination and rejected the operator's claim that its separate duty to withdraw miners at 1.5 percent methane made the section 107(a) order duplicative. It also upheld the ALJ's admission of prior-ignition reports and a later bottle sample showing 9.11 percent methane. Chairman Mary Lu Jordan and Commissioner Robert F. Cohen Jr. concurred separately that explosive methane in active workings alone justifies immediate withdrawal without identifying a ready ignition source.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(j) and 817(a)
• Outcome: The ALJ's affirmance of the imminent-danger order and the challenged evidentiary rulings were affirmed.
• Key point: An operator's methane-triggered withdrawal duty and an inspector's imminent-danger authority impose separate duties, so compliance with one does not make the other duplicative.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                                                         

ADMINISTRATION
(MSHA)                       :       

:

v.
                                               :        Docket No. SE 2011-407-R 

:                         

JIM
WALTER RESOURCES, INC.                :

BEFORE:
Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY:
Young, Nakamura, and Althen, Commissioners:

This proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”).
At issue is an imminent danger order issued by the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) pursuant to section 107(a) of the
Mine Act, 30 U.S.C. § 817(a),[1]
to Jim Walter Resources, Inc. (“JWR”) at its No. 7 Mine, an underground coal mine in Alabama. The order alleges elevated levels of methane at 5.6 percent
in a roof cavity within the mine.

On
December 22, 2011, the Administrative Law Judge
issued a decision in this case affirming the section
107(a) withdrawal order. 33 FMSHRC 3211 (Dec.
2011) (ALJ). The operator filed a petition for discretionary review of
the Judge’s decision, which the Commission granted. For the reasons
that follow,
we affirm the Judge’s decision.[2]

I.

Factual and Procedural Background

A.
       Factual Background

On February 14, 2011, MSHA Inspector
Lee Getter was conducting a five-day spot inspection[3]
of the No. 8 Section of JWR’s No. 7 Mine, due to the fact that the mine was
liberating over one million cubic feet of methane in a 24-hour period. Tr. 34. During
the inspection, Getter observed a continuous miner operator, a helper, an
electrician, two roof bolters, two shuttle car operators, and a supervisor
working in the No. 8 Section. Tr. 50. The continuous miner was located at the
face of the No. 2 entry, and the roof bolter was located in the last open
crosscut between the No. 2 and 3 entries. Tr. 50. Getter also observed another
inspector taking dust samples in the section. Tr. 49. Counting the other inspector
and her traveling party, Getter testified that there may have been 10 to 12 people
in the section at the time of his inspection. Tr. 50.

During the inspection, Getter
noticed a roof cavity that was located at the intersection between the No. 2
and 3 entries, about 40 feet back from the face. Tr. 51-52. The cavity was
about 5½ feet deep, and contained a smaller, upper cavity that was
approximately 1½ feet deep, which left four feet in the larger, main cavity. Tr.
98-99.

Upon discovering the cavity,
Getter instructed the continuous miner operator to raise a methane detector into
the cavity. About halfway 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 then attempted another methane
reading. Tr. 57-58. The second time, the detector was pushed to the edge of the
smaller, upper cavity, and the reading showed 5.6 percent methane. Tr. 58. Getter testified that, during this time,
one of the roof bolters was about to pin a loose rib that was located nearby the
pocket of methane, which would have produced sparks. Tr. 63, 163.

Upon discovering the
methane, Getter issued a section 107(a) imminent danger withdrawal order,
directing the operator to cease mining operations in the area. The order
alleged that the operator had “allowed methane levels to reach 5.6%”
in the roof cavity. Gov't Ex. 1, at 1.

JWR subsequently contested
the imminent danger order. On December 22, 2011, the Judge affirmed the order.

B.        The
Judge’s Decision

1.         Whether
the Inspector Abused His Discretion in Issuing the Imminent Danger Order

The
Judge held that Inspector Getter did not abuse his discretion by finding an imminent
danger at the roof cavity. She concluded that Getter reasonably
believed that an ignition of the methane in the cavity was likely to occur. She
credited Getter’s testimony that a methane concentration of over 5 percent is
in the explosive range,[4] and that with such a high level of
methane, everything becomes a possible ignition source, including the slightest
friction and even clothing static. 33 FMSHRC at 3217.

The Judge also found that various ignition sources existed in the
area. Id. at 3213, 3217; Tr. 64. Specifically, the Judge credited Getter’s
testimony that a continuous miner was prepared to begin cutting coal nearby the
roof cavity, which would have produced sparks igniting the methane. She also
credited Getter’s testimony that a roof bolter was energized and moving through
the area to begin roof bolting a loose rib, which would have produced sparks nearby
the roof cavity. 33 FMSHRC at 3213, 3217; Tr. 62-63. She emphasized that the
last open crosscut is the “busiest area,” with many miners traveling through
the area, and that the area contained a significant amount of energized
equipment and cables. 33 FMSHRC at 3214, 3218. Finally, the Judge noted that a
roof fall, which created the cavity, had occurred within the previous few days,
and that roof falls can also constitute ignition sources. Accordingly, the
Judge credited Getter’s description of the scene as “volatile” and sensitive — “a
ticking time bomb.” 33 FMSHRC at 3214, 3218, Tr. 64.

The Judge further found that the mine’s ventilation system was
reasonably likely to push the methane downward toward the mining machines and
cables. She emphasized that the air in the cavity “was not being adequately
diluted, as evidenced by the high levels of methane that remained” in the
cavity. Id. at 3218. She found that, under normal mining operations, the
methane would have migrated to other areas, pushed along by air that would not
adequately dilute the mixture. Id. Based on these reasons, the Judge
found that Getter reasonably believed that an ignition of methane was likely to
occur, and that he did not abuse his discretion in issuing the section 107(a)
withdrawal order. Id. at 3220.

2.         Whether
the Imminent Danger Order was Duplicative

The Judge also rejected the operator’s argument that the section
107(a) order was duplicative. The operator claimed that the
order was unnecessary because JWR had already issued its own withdrawal order
under 30 C.F.R. § 75.323(b)(2)[5]
so that no mining activities would have been taking place by the time Getter
issued the imminent danger order. The Judge, however,
found that there was no indication that JWR was in the process of removing
power or miners from the area when Getter discovered the excessive quantities
of methane. Specifically, the equipment in the section was energized, and the
miners were preparing to produce coal by the time Getter had arrived. 33 FMSHRC
at 3219; Tr. 163 (“[b]y the time we got ready to start running, Lee came up . .
. “).

The Judge further concluded that, as a matter of law, section
75.323(b)(2) and section 107(a) “impose
separate and distinct [legal] duties” on an operator. 33 FMSHRC at 3219. Accordingly,
she held that the imminent danger order was not duplicative.

3.         Whether
Various Pieces of Evidence were Admissable

The Judge made several evidentiary
rulings that were adverse to the operator. Specifically, the operator had
objected to reports of prior methane ignitions at the mine, as well as a bottle
sample test result showing methane at 9.11 percent, which was observed by the
inspector after he issued the section 107(a) withdrawal order. Over renewed
objections, the Judge admitted both pieces of evidence. Tr. at 19, 40, 68-69;
Sec’y Ex. 3, 5, 6. The Judge reasoned that Getter was well aware of the prior
ignitions at the time that he issued the section 107(a) order (Tr. 35) and that
those ignitions were facts known to him that supported his imminent danger
finding. The Judge further reasoned that the 9.11 percent methane reading was
relevant because it independently confirmed Getter’s testimony about the
methane level in the roof cavity exceeding 5 percent. 33 FMSHRC at 3213.

II.

Disposition

A.        The
Judge Properly Concluded that the Inspector Did Not Abuse His Discretion in
Issuing the Imminent Danger Order.[6]

Section
107(a) of the Act provides in relevant part that if an MSHA inspector “finds
that an imminent danger exists, [the inspector] shall . . . issue an order
requiring the operator of such mine to cause all persons . . . to be withdrawn
from” the relevant area until the danger no longer exists. Section 3(j) defines
an “imminent danger” as a condition “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) (emphasis added).[7]

An
inspector’s issuance of a section 107(a) imminent danger order is reviewed
under an “abuse of discretion” standard. Island Creek Coal Co., 15
FMSHRC 339, 345-47 (Mar. 1993); Utah Power & Light Co., 13 FMSHRC
1617, 1627 (Oct. 1991). A section 107(a) order will be upheld if the Secretary
proves by a preponderance of the evidence that the inspector reasonably
concluded, based on information known or reasonably available to the inspector,
that an imminent danger existed. Island Creek, 15 FMSHRC at 346-47.

Here, we conclude that substantial evidence supports the Judge’s
finding that the inspector reasonably concluded that the methane in the roof
cavity was
reasonably expected to cause death or serious physical harm before it could be
abated.[8]

First, Inspector Getter knew that the roof bolting process would
have created sparks that were reasonably likely to come into contact with the
methane in the nearby roof cavity, had the operator pinned the loose rib. James
Woods, the section coordinator, testified that the roof bolting process would
have occurred 25 feet away from the roof cavity. Tr. 190. Although 25 feet is
not directly next to the cavity, it is close enough that sparks could reach the
roof cavity and come into contact with the methane. Getter also testified that
the roof bolting process tends to “sling” sparks. Tr. 63. Specifically,
according to Getter, during the pinning process “you’ve got metal cutting rock
. . . which creates heat, which creates sparks.” Getter added that “when they
insert a pin into the roof, you’ve [also] got metal to metal from the roof bolt
and actually what’s called the Decatur plate on the roof bolt that once spun up
against tends to sling sparks also and create heat.” Id. (emphasis
added). Getter noted that “[t]here have been cases where ignitions have
occurred from the actual holes where they’re inserting roof bolts.” Id. As
a result, the argument that the distance between the pinning process and the
methane was great enough to prevent an ignition is unpersuasive.[9]

Second,
the fact that the continuous miner had many
moving parts that could produce sparks and cause ignitions was
information reasonably available to Getter. On direct examination, Getter testified
about numerous prior ignitions that had occurred at the mine. He stated that “the
commonality for all of the [prior] ignitions was the continuous mining machine
cutting into the hard rock bottom.” Tr. 45; Gov’t Ex. 5-E. Although the
continuous miner was located 40 feet inby the methane pocket (Tr. 114), the miner could have travelled closer to
the roof cavity, producing sparks from the roof
antenna that could ignite the methane.[10] Furthermore, any methane
ignitions at the continuous miner could have been propagated by the methane in
the roof cavity. Tr. 114.

Third,
we conclude that Getter’s knowledge of the prior methane ignitions at the mine
constitutes an independent reasonable basis for his issuance of the section 107(a)
order. Tr. 75-76, 176. Getter testified that he had
been aware of “quite a few” of the prior ignitions at the mine through “[d]iscussions
in the office,” and that the mine had actually experienced an ignition on a different
section the same day that Getter did his inspection at the mine for the instant
case. Tr. 34-35.

Fourth, the existence of the prior roof fall is information that
was reasonably available to Getter and relevant to his imminent danger finding.
Woods admitted on cross-examination that the prior roof fall creating the
cavity occurred two days before Getter issued the imminent danger order.
Furthermore, Woods conceded that such roof falls constitute ignition sources
that can interact with methane in the area. Tr. 176. As a result,
Getter had a reasonable basis for issuing the section 107(a) order. Accordingly,
we find that the Judge’s decision was based on substantial evidence. [11]

B.        The
Imminent Danger Order Was Not Duplicative of the Operator’s Withdrawal Order Under
Section 75.323(b)(2).

We
reject JWR’s claim that the section 107(a) order was duplicative and
unreasonable. The operator claims that the section 107(a) order was unnecessary
because the operator’s withdrawal order under section 75.323(b)(2) was already
in effect, so that mining activities would have ceased by the time Getter
issued the order. This claim, however, is controverted by the fact that the
operator had no plans to delay coal production until after Getter discovered
the excessive quantities of methane. Tr. 163, 227-28.
This necessitated issuance of the order.[12]

Furthermore,
even if JWR could prove that it had been planning to halt coal production
before the inspector discovered the methane, the caselaw governing allegedly
duplicative enforcement actions does not support it. The issue is whether
multiple standards “impose separate and distinct duties” on an operator. Spartan
Mining Co., 30 FMSHRC 699, 716 (Aug. 2008); Western Fuels-Utah. Inc.,
19 FMSHRC 994, 1003-04 (June 1997). In a situation analogous to that in this
case, the Commission explained that, unlike section 107(a), the mandatory withdrawal
standard in question, 30 C.F.R. § 75.309(b), was “directed to the operator rather
than the Secretary.” Wyoming Fuel Co., 13 FMSHRC 1210, 1215 (Aug. 1991).
Section 75.309(b) is similar to section 75.323(b)(2) in that they both require
operators to shut down power and withdraw miners from dangerous areas of a
mine. In the same way, section 107(a) and the mandatory standard in this
case “impose separate and distinct duties” between the Secretary and the
operator. Accordingly, we conclude that the section 107(a) order is not
duplicative.

C.        The
Judge Acted Within Her Discretion In Making Evidentiary Rulings that Were
Adverse to the Operator.

We reject JWR’s claims of evidentiary
and procedural error. First, we conclude that the Judge properly admitted the
reports of the prior methane ignitions at the mine (Gov’t Exs. 5A-5M) because
Getter was well aware of the prior ignitions at the time that he issued the section
107(a) order (Tr. 35) and those ignitions were thus “facts known to him” that
supported his imminent danger finding. We further find that the operator cannot
plausibly claim that the Secretary’s late disclosure of the reports shortly
before the trial denied the operator a fair hearing, because the operator makes
no argument as to how it was legally prejudiced by the late disclosure.

Second, we conclude that the Judge
properly admitted the bottle sample testing result showing 9.11 percent methane
because it independently corroborates Getter’s testimony. Getter testified at the hearing that when testing the
methane in the roof cavity, he had observed an increased reading and he
believed that the methane may have actually been at a greater level due to the
height of the cavity. Tr. 58, 68.

Third, we find that the Judge did not
err by declining to draw the credibility determination that the operator sought
on cross-examination regarding the issue of how high up in the roof cavity the
methane existed. On cross-examination, the operator attempted to use the
inspector’s notes to impeach his testimony on this issue, and to show that the
methane was located not in the main part of the cavity, but in the upper cavity
only. Although the Judge admitted the notes into the record, she stated that
she “[didn’t] hear . . . any inconsistent statement” on this issue and that she
would allow the notes in “[f]or what they’re worth.”

Tr.
127-28. The Commission has recognized that a judge’s credibility determinations
are entitled to great weight and may not be overturned lightly. Eastern Assoc. Coal Corp., 32 FMSHRC 1189, 1196–97 n.8 (Oct. 2010); Dynamic Energy, Inc., 32
FMSHRC 1168, 1174 (Sept. 2010).

Finally, we reject JWR’s argument that
the Judge improperly treated Getter as an expert witness. The full sentence in
the Judge’s decision that prompts the operator’s claim of error reads that “[Getter]
is a ventilation expert, and is aware that methane above 5 percent is volatile and
explosive.” 33 FMSHRC at 3217. The fact that
methane above 5 percent is explosive is common knowledge in the mining industry
and has been previously noted by the Commission. Texasgulf, 10 FMSHRC at

501. Commonly known information in the mining industry is a far cry from the “scientific,
     technical, or other specialized knowledge” that requires qualification as an expert
     under the Federal Rules of Evidence. See Fed. R. Evid. 701, 702. As a
     result, we conclude that the Judge did not treat Getter as an expert witness.

III.

Conclusion

For
the reasons stated above, we affirm the Judge’s finding of an imminent danger.

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Chairman
Jordan and Commissioner Cohen, concurring:

We
agree with the majority that there is substantial evidence to support the
Judge’s conclusion that the inspector reasonably concluded that the
accumulation of methane in the roof cavity was reasonably expected to cause
serious physical harm before it could be abated, and that there were multiple
proximate potential ignition sources. However, we believe that it is not
necessary to reach that issue.

Rather,
we conclude that the detection of an explosive concentration of methane, by a
mine inspector, in active workings within an underground coal mine (i.e., an
area where miners work or travel pursuant to 30 C.F.R. § 75.2), justifies the
issuance of an imminent danger order requiring the immediate withdrawal of
miners, without the need to determine the presence of a ready ignition source. We
explain the bases of that conclusion in our separate opinion issued as part of
the Commission’s concurrently issued decision concerning a separate incident of
an explosive accumulation of methane at Jim Walter Resources’ No. 7 mine. See
Jim Walter Res. 37 FMSHRC    , No. SE 2012-681-R.  

/s/ Mary Lu
Jordan

Mary
Lu Jordan, Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1] Section 107(a)
provides in relevant part that if an MSHA inspector “finds that an imminent
danger exists, [the inspector] shall . . . issue an order requiring the
operator of such mine to cause all persons . . . to be withdrawn from” the
relevant area until the danger no longer exists. 30 U.S.C. § 817(a).

[2] On this same
date, the Commission is issuing a separate decision in a case involving very
similar issues. Jim Walter Res. Inc., Docket No. SE 2012-681-R.

[3] Under section
103(i) of the Mine Act, any mine that liberates more than “a million cubic feet
of methane . . . during a 24-hour period” is required to have an MSHA inspector
inspect the mine “every five working days at irregular intervals.” 30 U.S.C. §
813(i). The No. 7 Mine liberates more than one million
cubic feet of methane in a 24-hour period and therefore is subject to a spot
inspection every five days. Tr. 34.

[4] The explosive range of methane is between 5 and 15
percent. Knox Creek Coal Corp., 36 FMSHRC 1128, 1135 n.13 (May 2014); Texasgulf,
Inc., 10 FMSHRC 498, 501 (Apr. 1988). 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 gases.

[5] Section 75.323(b)(2)
provides that “[w]hen 1.5 percent or more methane is present in a working
place or an intake air course, including an air course in which a belt conveyor
is located, or in an area where mechanized mining equipment is being installed
or removed — [e]veryone except those persons referred to in
§ 104(c) of the Act shall be withdrawn from the affected area[,] and[,] [e]xcept for intrinsically safe AMS [Atmospheric
Monitoring Systems], electrically powered equipment in the affected area shall
be disconnected at the power source.” 30 C.F.R. § 75.323(b)(2).

[6] Commissioners
Althen and Young note for the record their disagreement with the concurring
opinion of the Chairman and Commissioner Cohen for the reasons set forth in
their dissenting opinion in Jim Walter Res. Inc., 37 FMSHRC _   ,
slip op. at 1-6, No. SE 2012-681-R, issued on the same day as this decision.

[7] The parties
offer two different interpretations of what constitutes an “imminent danger.” The
Secretary claims that he need not prove that death or serious injury is
reasonably expected to occur within a “short period of time,” and that the
Commission caselaw setting forth this requirement conflicts with the statutory
definition of “imminent danger” in section 3(j). The operator, by contrast,
argues that the requirement of a “short period of time” is correct and that an
actual, ready ignition source is required to sustain an imminent danger order
in the context of methane accumulations. We need not reach this issue in this
case, however, because the result will be the same under either interpretation.

[8] When reviewing a
Judge’s factual determinations, the Commission is bound by the terms of the
Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a
reasonable mind might accept as adequate to support [the Judge’s] conclusion.’”
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In
reviewing the whole record, an appellate tribunal must consider anything in the
record that “fairly detracts” from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan.
1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951)).

[9] We find
unpersuasive the operator’s argument that the methane monitor on the roof
bolter would have mitigated the threat of any explosion by detecting the
methane in the roof cavity and shutting down the roof bolter. The roof bolter
only extended up to the roof line, which was 7 to 7½ feet high. The methane, by
contrast, existed above the roof line, within the cavity. Tr. 83-85. Thus,
the methane monitor on the roof bolter would have failed to extend high enough
into the roof cavity to detect the methane. Furthermore, the roof bolter would
have been 25 feet away from the methane. In any event, the Commission has declined
to give probative value to mine operators’ reliance on redundant safety
measures. Buck Creek Coal Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995); Amax Coal, 18 FMSHRC 1355, 1359 n.8 (Aug. 1996).

[10] On direct
examination, Woods testified that the side of the continuous miner had an
antenna welded onto it in order to gauge the height of the entry and ensure
that the roof would be no lower than 84 inches. Tr. 163-64. He also admitted on
cross-examination that the antenna would often scrape the roof and could
possibly cause sparks. Tr. 190-92.

[11] By contrast, we
conclude that substantial evidence does not support the Judge’s finding that Getter reasonably concluded that the methane would
have migrated to other areas of the mine towards the cable and equipment. 33
FMSHRC at 3218. According to Getter, the airflow was ventilating the roof
cavity in an upwards direction. Tr. 69-70, 87. Although this upwards
ventilation was improved upon abatement by repositioning a blower curtain,
Getter testified that “methane is lighter than air” and “rises to the top.” Tr.

87. Therefore, we conclude that substantial evidence does not support the
    Judge’s finding that the airflow would have pushed the methane downwards before
    it could be abated. Regardless, however, this constitutes harmless error
    because substantial evidence still exists to support the Judge's decision, as
    shown supra.

[12] It would be odd
and contrary to the Act’s enforcement scheme if operators could issue a
withdrawal order under section 75.323(b)(2) upon learning of a dangerous
condition from an MSHA inspector, in order to avoid the consequences of a
section 107(a) order. “The strict liability nature of the Act does not allow for
this sort of gamesmanship.” Wake Stone Corp., 36 FMSHRC 825, 829 (Apr.
2014) (refusing to allow operator to insist on a pre-operational examination
upon learning of an impending MSHA inspection, in order to avoid liability for
failing to maintain service horn in working condition).