Secretary of Labor v. Jim Walter Resources, Inc.

Plain-English summary

An MSHA inspector measured more than five percent methane in a roof cavity at Jim Walter Resources' No. 7 Mine and issued an imminent-danger withdrawal order. A Commission majority affirmed the ALJ because substantial evidence supported the inspector's conclusion that a nearby mobile, nonpermissible Lo Trac could enter the active crosscut, spark, and ignite the methane before abatement. Chairman Mary Lu Jordan and Commissioner Robert F. Cohen Jr. also reasoned that explosive methane in active workings independently justifies immediate withdrawal without identifying a specific ignition source. Commissioners Michael G. Young and William I. Althen dissented, emphasizing that the crosscut was vacant, the Lo Trac was out of service and distant, and advancing a ventilation curtain dissipated the methane almost immediately.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(j) and 817(a)
• Outcome: The ALJ's affirmance of the imminent-danger order was affirmed over a two-Commissioner dissent.
• Key point: An imminent-danger methane order is sustained when the inspector reasonably relies on an explosive accumulation, nearby activity, and a mobile nonpermissible machine as a potential ignition source.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY
OF LABOR,                             :                                     

MINE
SAFETY AND HEALTH                    :                            

ADMINISTRATION
(MSHA)                       :       

:

v.
                                               :        Docket No. SE
2012-681-R 

:                         

JIM
WALTER RESOURCES, INC.                :

BEFORE:
Nakamura, Acting Chairman; Cohen and Althen, Commissioners

DECISION

BY:
Nakamura, Commissioner:[1]

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),[2] to Jim
Walter Resources, Inc., ("JWR") at its No. 7 Mine, an underground coal mine in Alabama. The order alleges elevated levels of methane in excess of five
percent in a roof cavity within the mine.

On January 23, 2014, the Administrative Law Judge issued a
decision in this case affirming the section 107(a) withdrawal order. 36
FMSHRC 235 (Jan. 2014) (ALJ). The operator filed a petition for discretionary
review of the Judge's decision, which the Commission granted. For the reasons
stated below, I affirm the Judge's decision.[3]

I.

Factual and Procedural Background

A.    Factual
Background

On August 13, 2012, MSHA Inspector
Larry McDonald was conducting a quarterly inspection of the No. 8 section of JWR's
No. 7 mine. McDonald
observed eight miners in the area, although he was not certain where each miner
was located. Those miners included JWR safety
supervisor John Connellan and United Mine Workers of America ("UMWA")
miners' representative Steve Pendley, who both accompanied McDonald on
the inspection. The closest miners not part of the inspection party included
Eric Church, an hourly UMWA miner, and the
section foreman James Woods.

As McDonald
walked towards the face of the mine, he turned left onto the No. 2 entry,
and his methane detector began to fluctuate. As McDonald
walked through the No. 2 entry, he turned right into a long crosscut, which was
located between the No. 2 and 3 entries. Once in the long crosscut, he observed
a line curtain hung up, which was intended to ventilate the methane in the
area. When McDonald reached the right corner of the curtain to make a reading,
he observed a cavity in the roof of the long crosscut.

McDonald testified that while taking a
series of dust surveys, he observed a Lo Trac machine[4] moving in
the area. Tr. 92-95. After taking the dust surveys, McDonald turned off the No.
3 entry into a long crosscut heading toward the No. 2 entry. As he came through
a man door into the crosscut, he observed a change in his methane detector,
with an increase of .4 percent. McDonald went to a line curtain that was hung
in the long crosscut to make another methane reading. He turned around and saw
a high cavity in the roof. Tr. 95-96. McDonald subsequently stepped up on a
pallet of blocks and raised his detector into the cavity. The reading exceeded five
percent. Tr. 97. The cavity measured approximately five feet wide by seven feet
in length by two feet in depth. Tr. 112-13. McDonald was not certain as to how
close to the long crosscut the remaining miners in the vicinity were. Tr. 182.

McDonald corroborated his methane
reading of over five percent by having Pendley and Connellan use their methane
detectors to take readings in the cavity, which showed the same result of over five
percent methane. Tr. 97. McDonald then issued a section
107(a) imminent danger withdrawal order, directing the operator to cease mining
operations in the area. The order alleged that "[m]ethane was
allowed to accumulate in a high cavity on #8 section (MMU-008) in between the #2 intake entry and
the #3 intake belt entry, which is the long crosscut." JWR Ex. C1.

JWR subsequently contested
the imminent danger order. On January 23, 2014, the Judge affirmed the order.

B.     The Judge's
Decision

The Judge held that McDonald
did
not abuse his discretion by finding an imminent danger at the roof cavity. He
concluded that McDonald reasonably believed that an ignition of the methane in
the cavity was likely to occur. Specifically, the Judge
credited McDonald's testimony that the Lo Trac was reasonably likely to enter
the long crosscut, arc and spark, and ignite the methane in the roof cavity. 31 FMSHRC at 242-44.

The Judge credited McDonald's testimony
that he had observed the Lo Trac travel in the long crosscut before he issued
the imminent danger order, and that this constituted a reasonable basis for
issuing the order. The Judge also found that, even if McDonald were mistaken about
the Lo Trac entering the long crosscut, it was reasonable to conclude that the Lo
Trac was reasonably likely to enter the long crosscut in the foreseeable
future. This finding was based on the Lo Trac's exposed components, its lack of
explosive proof enclosures, its proximity to the long crosscut, and its
mobility. Id. at 242.

In finding that the Lo Trac
was an ignition source, the Judge rejected the operator's argument that it was
unlikely that the Lo Trac would spark at exactly the right angle to ignite the
methane. Id. at 243-44. The Judge stated that the issue was whether the
inspector reasonably believed that the Lo Trac was likely to enter the crosscut
and spark, igniting the methane. The Judge emphasized that the long crosscut
was the source of some activity that day, and that there were
materials stored in the crosscut. Id. Citing Utah Power & Light Co., 13 FMSHRC 1617,
1622 (Oct. 1991), for the proposition that the
Secretary does not have to establish the ''percentage of probability that an
accident will happen," the Judge found that it was not
"improbable" that the Lo Trac would ignite the methane. 36 FMSHRC at 242-43.

The Judge also rejected JWR's
argument that it was improbable that the Lo Trac would ignite the methane
because the Lo Trac had been "tagged out" for repair. Noting that the
operator, and not MSHA, had "tagged out" the Lo Trac for a minor issue,
the Judge found that nothing prevented the Lo Trac from being used by mine
personnel for its intended purpose. Based on these reasons, the
Judge found that McDonald 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 243.

II.

Disposition

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

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. 30 U.S.C. §
817(a). 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).[5]

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) (citations omitted); Utah Power & Light Co., 13 FMSHRC at
1622-23 (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
(citations omitted).

Here,
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.[6]
Inspector McDonald based his imminent danger determination on two factors: (1)
he relied on the fact that the Lo Trac is a non-permissible piece of equipment that
could arc or spark; and (2) he knew that the Lo Trac is a mobile piece of
equipment that commonly delivered materials and supplies to and from the long
crosscut.[7]
Furthermore, the fact that the area surrounding the long crosscut was the
source of some activity was information reasonably available to McDonald. Thus,
McDonald was justified, based on information known or
reasonably available to him, in concluding that the Lo Trac was reasonably
likely to ignite the methane in the roof cavity before the methane could be
abated.[8]

It
was reasonable for McDonald to surmise that the Lo Trac could wind up in a
position where it could ignite the methane in the roof cavity. McDonald knew
that Lo Tracs do not have explosive-proof enclosures. Tr. 88-89, 209-10. Rather,
Lo Tracs contain electrical connections that are open, exposed alternators, and
frictional brakes that can cause sparks. Tr. 209-210. McDonald also knew that
the Lo Trac is a mobile piece of equipment. Moreover, Connellan testified that
the Lo Trac is typically used to take supplies to the long crosscut. Tr. 315. Thus,
the record establishes that the Lo Trac was certainly capable of traversing the
long crosscut, and passing beneath the roof cavity containing methane in an
explosive range.

There
is also substantial evidence in the record that the area surrounding the long crosscut
was the source of some activity, and that materials were stored in the crosscut.
Tr. 315, 317-20. Therefore, it was reasonable for McDonald to assume that the
Lo Trac could enter the crosscut to retrieve or move such materials in the
foreseeable future. Accordingly, I conclude that substantial evidence supports
the Judge's conclusion that McDonald did not abuse his discretion in finding
the existence of an imminent danger.[9]

III.

Conclusion

For
the reasons stated above, I affirm the Judge's finding of an imminent danger.

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Chairman
Jordan and Commissioner Cohen, concurring:

We
agree with the opinion of Commissioner Nakamura that there is substantial
evidence to support the Judge’s conclusion that the MSHA inspector was
justified in issuing an imminent danger order because of the potential of the
Lo Trac machine to ignite the methane in the roof. 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 an area of an
underground coal mine in which miners work or travel, 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.

Factual Background

On
August 13, 2012, MSHA Inspector Larry McDonald conducted a quarterly inspection
of the No. 8 section of JWR’s No. 7 mine. Inspector McDonald was accompanied by
JWR safety supervisor John Connellan and the miners’ representative Steve
Pendley. As he proceeded towards the face of the mine, McDonald turned into the
No. 2 entry, whereby he noticed his methane detector began to fluctuate. Continuing
through the entry, the inspector turned into a long crosscut located between
the No. 2 and 3 entries. As he came through a man door into the crosscut, he
observed that his methane detector indicated an increase of 0.4 percent. McDonald
went to a line curtain that was hanging in the long crosscut to make another
methane reading. When the Inspector reached the right corner of the curtain, he
observed a cavity in the roof of the long crosscut. He raised his detector into
the cavity in order to obtain a methane reading. The reading exceeded five
percent. Tr. 97. McDonald corroborated his methane reading by asking Pendley
and Connellan to take readings in the cavity using their detectors. Both
detectors indicated the presence of methane in levels greater than five percent.
Methane in the 5-15% range is explosive.

McDonald
issued an imminent danger withdrawal order under section 107(a) of the Mine
Act, directing the operator to cease mining operations in the area. 30 U.S.C. §
817(a). The order alleged that “[m]ethane was allowed to accumulate in a high
cavity on #8 section (MMU-008) in between the #2 intake entry and the #3 intake
belt entry, which is the long crosscut.” Sec'y. Ex. 9.1

Analysis

It
is well-established that an inspector’s issuance of 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 the evidence reasonably available to
him, that an imminent danger existed. Island Creek Coal Co., 15 FMSHRC
339, 346-47 (Mar. 1993) (citations omitted). Traditionally, in cases where an
inspector issues an imminent danger order as a result of a methane
accumulation, the Commission has required the Secretary to demonstrate the
presence of an ignition source that might be reasonably expected to cause an
explosion. See Island Creek, 15 FMSHRC at 346-48. However, as we explain
below, those cases have not confronted the issue presented here, in
which an explosive concentration of methane is detected in active workings of a
mine.2 We conclude that if an inspector
encounters an explosive level of methane (i.e., five percent or greater) in
active workings of an underground mine, he or she is justified in issuing a
section 107(a) order without further determining the existence of an ignition
source.

Section
3(j) of the Mine Act defines an “imminent danger” as a “condition or practice .
. . 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). We
conclude that once an accumulation of methane in active workings reaches the
explosive range, it becomes imminently dangerous.

The
drafters of the 1969 Coal Act referred to the accumulation of methane gas in
explosive amounts as “[t]he most hazardous condition that can exist in a coal
mine and lead to disaster-type accidents . . .” H.R. Rep. No. 91-563, at 21
(1969), reprinted in Senate Subcomm. on Labor, Comm. on Labor and Pub.
Welfare, 94th Cong., Part I Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, at 1051 (1975).3 “Explosive
mixtures are formed when methane concentrations in the mine atmosphere range
from 5 to 15 percent. The energy required for ignition is minute.” S. Rep. No.
91-411, at 25 (1969), reprinted in Senate Subcomm. on Labor, Comm. on Labor
and Pub. Welfare, 94th Cong., Part I Legislative History of the Federal Coal
Mine Health and Safety Act of 1969, at 151 (1975). In enacting the Coal
Act, Congress recognized that numerous potential ignition sources are “always
present” in a coal mine “even under the best mining conditions.” H.R. Rep. No.
91-563 at 21.

In
light of this legislative history, we conclude that an explosive accumulation
of methane “could reasonably be expected to cause death or serious physical
harm” at any moment in time, including the time before the condition can
be abated. 30 U.S.C. § 802(j). Hence, permitting an inspector to issue a
section 107(a) order upon the finding of explosive methane in active workings,
without finding a specific ignition source, is consistent with the statutory
language.

The
history of coal mining in the United States is replete with examples of the
tragic consequences associated with methane.

For example, in
1940, 257 coal miners died in four separate methane gas explosions. This
provided the impetus needed to enact Federal legislation which had been pending
for several years. In 1941, Congress quickly passed the Coal Mine Health and
Safety Act. In December, 1951, 119 coal miners died in another explosion of
naturally occurring methane gas in a coal mine in West Frankfort, Ill. The
following year Congress amended and strengthened the 1941 act. Again, in
November of 1968 still another methane gas explosion in a coal mine in
Farmington, W. Va., killed 78 men. Within a year, Congress passed the new
Federal Coal Mine Health and Safety Act of 1969.

H.
R. Rep. No. 95-312, at 4 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res. 95th Cong., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 360 (1978). Even in recent years, we have
witnessed horrific methane explosions which have taken the lives of 13 miners
at JWR’s No. 5 Mine in 2001, Jim Walter Res., Inc., 28 FMSHRC 579 (Aug.
2006); 12 miners at the Sago Mine, S. Rep. No. 109-365 at 2 (2006) (legislative
history of the Mine Improvement and New Emergency Response Act of 2006, P.L.
109-236); and 29 miners at the Upper Big Branch Mine, DQ Fire &
Explosion Consultants, Inc., 36 FMSHRC 3090, 3091 (Dec. 2014), appeal
docketed, No. 15-1008 (D.C. Cir. Jan. 15, 2015).

Congressional
concern regarding the danger associated with methane is further evidenced by
the mandatory tests for methane that must be conducted at specified locations
and intervals, and the immediate withdrawal of miners required when such
examinations reveal the presence of methane in amounts much lower than the
explosive level detected in the present case. To illustrate, section 303(h)(1)
of the Act requires tests for methane “at the start of each shift . . . at each
working place.” 30 U.S.C. § 863 (h)(1). Testing is also required at each
working place every 20 minutes during the shift. Id. The Act further
provides, in section 303(h)(2), that “if at any time the air at any working
place, when tested . . . contains 1.5 volume per centum or more of methane, all
persons [except those needed to abate the condition] shall be withdrawn from
the area of the mine endangered thereby to a safe area, and all electric power
shall be cut off from the endangered area of the mine, until the air in such
working place shall contain less than 1.0 volume per centum of methane.” 30
U.S.C. § 863 (h)(2). Testing is also required under section 303(i)(1). These
tests must occur at four hour intervals at a “split of air returning from any
working section.” 30 U.S.C. § 863(i)(1). If it contains 1.5 volume per centum
or more of methane, miners must be withdrawn. 30 U.S.C. § 863 (i)(2).4

That
Congress identified areas in which regular methane testing be done, and
specified conditions under which withdrawal of miners must occur, could lead
one to conclude that the immediate withdrawal of miners is justified only if
accumulations of methane are detected in certain amounts in those specific
areas, to wit: the working place or a split of air returning from a working
section. Since the methane accumulation at issue here was not detected in
either of those areas, the argument could be made that the Secretary needs to
demonstrate more than the presence of methane to justify the imminent danger
order; that he needs evidence of an available ignition source. We do not
believe such an argument would be well founded.

Congress
specified how methane testing should be carried out at working places and at
splits of air returning from working sections, and required that operators must
withdraw miners if the methane concentration in those areas was 1.5% or more. This
should not lead to the conclusion that a methane accumulation in other active
workings would not require the same precautionary measure, i.e., the immediate
withdrawal of miners, when the amount of methane detected has reached the
explosive level of 5% -- more than three times the methane level required for
withdrawal in sections 303(h) and (i)(1)-(2).

The
testing required under section 303(h) at the start of the shift occurs at “each
working place.” This is defined at 30 CFR § 75.2 as: “[t]he area of a coal mine
inby the last open crosscut.” It is logical that Congress would focus on this
area because of its proximity to where the mining process is actually
occurring. Methane is released during the extraction of coal and the working
place is an area where equipment may be in operation which could pose an
ignition source. Hence, this testing is required before any equipment is
energized. Similarly, testing at a split of air returning from any working
section, as required by section 303(i), is done because the detection of a
certain level of methane at that location “indicates that considerably larger
amounts of methane may be accumulating in the air at places in the mine through
which the current of air in such split has passed.” S. Rep. No. 91-411 at 59,
reprinted in Legis. Hist. 1969 Act at 185.

It
is notable that withdrawal of miners is required when the air measured at these
areas contains 1.5 volume per centum or more of methane. Although that methane
level is below the level required for an explosion, Congress recognized that
“[o]nce it reaches 1.5% it can accumulate rapidly. Thus, action must be taken
promptly before it reaches 1.5 percent and men must be withdrawn when it
reaches 1.5 percent.” Id. (discussing statutory language that became
section 303(h) of the Act). Although the area where the methane was detected in
this case was not in a location that fit within the definition of “working
place,” the amount of methane detected was already in the explosive range. Given
that fact, we believe it was eminently reasonable for the inspector to require
the immediate withdrawal of miners, without continuing to investigate to
determine the existence of potential ignition sources.

We
note also that, although the miners are withdrawn from a working place when
methane levels reach 1.5%, the power to electric face equipment must be cut off
when methane is at one percent. One could posit, therefore, that the statute
requires the withdrawal of miners from a working place at a significantly lower
methane level than the explosive amount present here, and such withdrawal would
be required even though potential ignition sources, in the form of equipment,
might have already been required to be de-energized at the lower level of
methane.

That
a dangerous level of methane in a location within the active workings of the
mine could justify the withdrawal of miners is further supported by
requirements contained in section 303(t) of the Act. Under that provision, when
any mine fan stops, miners must be withdrawn from the working sections and
power in the mine is cut off.5 Power can be restored and work resumed
if ventilation is restored within a reasonable period but only after “the working
places and other active workings where methane is likely to accumulate
are reexamined by a certified person to determine if methane in amounts of 1.0
volume per centum or more exists therein.” 30 U.S.C. § 863(t) (emphasis added).
If a methane level of less than 1.0% in active workings is a prerequisite for
resuming work after a disruption in ventilation due to a fan stoppage, we
conclude that it is reasonable to consider the detection of methane in the
explosive range of 5% or more at a location in active workings an adequate
basis for requiring the withdrawal of miners from the affected area.

Furthermore,
the action required under the imminent danger order in question was no
different from the withdrawal mandate the operator would have had to obey under
30 C.F.R.

§
75.323 when methane reaches a level of 1.5% or more.6 Section
75.323 applies not only to “working places” but also to “intake air courses.” 30
C.F.R. § 75.323(b)(2). The operator’s counsel admitted during oral argument that
the area in question was on intake air. Oral Arg. Tr. 31-32. Therefore, it
would have been required to comply with the protocol mandated by section
75.323. Given the danger of methane that exists in intake air courses,7
it is appropriate to withdraw miners from such areas when they contain more
than three times the quantities of methane than are required under section
75.323 (as was the case here). In sum, declaring the inspector’s decision to
withdraw the miners pursuant to the imminent danger order an abuse of discretion,
as JWR urges, is particularly inappropriate here, when this is the very action JWR
would have been required to implement under the mandatory standard at section
75.323.

The
standard we propose does not conflict with Commission precedent. In Island Creek,
the Commission affirmed a finding that MSHA inspectors had abused their
discretion in issuing imminent danger orders upon determining that there were
explosive accumulations of methane located in the gob, without also determining
that there were ready ignition sources present. 15 FMSHRC at 346-47. It was
significant to the Commission, however, that the inspectors had not observed
explosive levels of methane in active workings of the mine. Id. at 347. Thus,
in affirming the Judge, the Commission declined to mandate that whenever an
inspector identifies explosive accumulations of methane in a mine he must also
identify a potential ignition source before issuing an imminent danger order
pursuant to section 107(a). Rather, the Commission explicitly stated: “We need
not and do not reach the issue of whether, in another case, the Secretary may
support an imminent danger order by showing that an explosive accumulation of
methane is present without proving a specific ignition source.” Id. at
348.

In
Cumberland Coal Res., 28 FMSHRC 545, 558 (Aug. 2006), the Commission
vacated a Judge’s affirmance of an imminent danger order. The Commission
concluded that a MSHA directive to the inspector to issue an imminent danger
order if methane measures above 4.5% at a measuring point location alone left
no discretion for the inspector to make an independent judgement. Id. at
555-58. Critically, the measuring point locations in question were in the gob,
and not active workings of the mine. Id. 549-50. Moreover, the Commission
made clear that its conclusion was “based on the unique circumstances of this
case.” Id. at 558.

In
Wyoming Fuel Co., 13 FMSHRC 1210 (Aug. 1991), a MSHA inspector issued an
imminent danger order after detecting methane in excess of 1.5% in a return
airway entry. The Commission concluded that substantial evidence supported the
Judge’s finding that no imminent danger existed. Id. at 1213. Significantly
however, the Commission stated that “[t]he record clearly demonstrates that at
the time the section 107(a) order was issued, the concentration of methane had
not reached an explosive level, [and] mining activity had been suspended.” Id.

For
all the aforementioned reasons, we would hold that because the inspector
credibly testified in this proceeding that he measured methane levels above
five percent in a place where miners are normally required to work or travel,
his belief that there was an imminent danger was reasonable and the 107(a) order was not an abuse of discretion.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Commissioners
Young and Althen, dissenting:

The
evidence demonstrates that an inspector detected an explosive level of methane
in a small roof cavity in an inactive crosscut where neither miners nor
equipment were present and in which the means for rapid abatement was both
obvious to, and known by, the inspector. No ignition source was in the
crosscut. Given the obvious and nearby means for rapid abatement and the
absence of any ignition source, not only was there clearly time to consider
whether there was a reasonable expectation of injury before abatement could be
completed but also such abatement clearly was available. Nonetheless, the
majority upholds the instantaneous issuance of an imminent danger order. We
respectfully dissent.

A.    Imminent Danger

Inspectors
must have considerable discretion in determining whether an imminent danger
exists. Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2164 (Nov.
1989). This right applies with special force in the context of the buildup of
an explosive level of methane.

At
the same time, the Commission must give effect to all the words of the statute
so that “no part will be inoperative or superfluous, void or insignificant.” In
re Surface Mine Regulation Litigation, 627 F.2d 1346, 1362 (D.C. Cir 1980)
quoting 2A Norman J. Singer, Sutherland Statutory Construction § 46:06
(4th ed. 1973). See also Commercial Union Ins. Co. v. United States, 999
F.2d 581, 587 (D.C. Cir. 1993); American Fed’n of Gov’t Emp. v. Fed. Labor
Relations Auth., 834 F.2d 174, 177 (D.C. Cir. 1987). In reviewing imminent danger orders, therefore, the
Commission must apply all the words of the definition of an imminent danger.

The
Mine Act sets forth a clear statutory definition of an imminent danger. An
imminent danger is “the existence 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). Therefore, substantial
evidence must support each element of an imminent danger: (1) a condition or practice in a mine (2) which could
reasonably be expected to cause (3) death or serious physical harm (4) before
such condition or practice can be abated.

In Island
Creek Coal Company,
15 FMSHRC 339 (Mar. 1993), the Commission focused upon the statutory
requirement that the reasonable expectation of death or serious injury must be
“before such condition or practice can be abated.” Finding the inspector was
required to make a reasonable investigation, the Commission vacated the
imminent danger order stating:

The Commission
has held that, in imminent danger cases,
the judge must determine “whether a preponderance of the evidence showed that
the conditions or practices, as observed by the inspectors, could reasonably be
expected to cause death or serious physical harm, before the conditions or
practices could be eliminated.”. . . We explained that, in making such a
determination, a judge “should make factual findings as to whether 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
issuance of the imminent danger order.”

Id. at 346, citing Wyoming Fuel Co., 14 FMSHRC
1282, 1291 (Aug. 1992) (emphasis added).

The
Commission has very recently confirmed Island Creek’s holding that a
Judge need not accept an inspector’s subjective perception that an imminent
danger existed. Instead, “[t]he Commission has explained that a Judge is
not required to accept an inspector’s subjective perception that an imminent
danger existed but, rather, must evaluate whether it was objectively
reasonable for the inspector to conclude that an imminent danger existed.” Mill Branch
Coal Corp., 37 FMSHRC __, slip op. at 7, No. VA 2012-435-R et. al.
(July 23, 2015), citing Island Creek, 15 FMSHRC at 346 (emphasis added).
Therefore, looking at the objective facts, we review the Judge’s determination
of whether the inspector abused his discretion under a substantial evidence
standard. See Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014).

In
Cumberland Coal Resources, LP, 28 FMSHRC 545 (Aug. 2006), the
Commission unanimously vacated an Administrative Law Judge’s affirmance of two
imminent danger orders issued upon an inspector’s detection on separate days of
rapid buildups of methane in crosscuts to the levels of 4.8% and 5%,
respectively. In reversing the Judge, the Commission found that the inspector
failed to conduct the “requisite reasonable investigation of the facts in
exercising his discretion.” Id. at 556. The Commission further noted
that the inspector did not know whether there was any buildup of methane in the
area of the face. Affirmance of an imminent
danger order, therefore, requires evidence demonstrating the inspector based
the order upon a reasonable investigation supporting a conclusion of a
reasonable expectation of death or serious injuries before abatement of the
hazard. The Commission’s decision was not based upon the location of the
measuring points, but instead upon the inspector’s abuse of discretion in
failing to make any reasonable investigation or determination of imminent
danger. Id. at 556. The holding in Cumberland
should be outcome determinative in this case.

In
Utah Power & Light Company, 13 FMSHRC 1617, 1622 (Oct.
1991), the Commission observed that, if any hazard that has the
potential to cause a serious injury is
an imminent danger, the distinction between an imminent danger and a
significant and substantial violation is lost. The outcome
determinative difference is that, for an imminent danger, the expectation must
be for a serious injury or death “before the condition or practice can be
abated.” We should continue to abide by Commission precedent that gives meaning
and substance to this definition of an imminent danger.

Obviously, the extent of the “investigation” necessarily
depends upon the circumstances. If the danger is obvious and extreme, such as
an explosive level of methane in a working face area with working miners
present, the investigation and hence, the decision may be virtually
instantaneous.1 However, a more considered approach is
available when no activity is occurring, no miner or equipment is in the area,
and there is an obvious means of abatement at hand.

Most
recently, the United States Court of Appeals for the District of Columbia
Circuit reinforced the nature, and limits, of imminent danger orders in
contrast to other remedies available to inspectors,

Most obviously, section 103(k) safety orders allow inspectors
to impose whatever restrictions or requirements they judge appropriate to deal
with the accident in question, while section 107(a) withdrawal orders simply
close the mine. In short, section 107(a) is an emergency blunderbuss, unsubtle
and extreme, for circumstances in which getting miners out and away is the only
appropriate response. Section 103(k), which the inspectors used here, is a
subtler instrument that can be tailored to any situation.

American
Coal Co. v. FMSHRC,
796 F.3d 18 (D.C. Cir. 2015).

We
agree with the Court's characterization of imminent danger orders as an
“extreme” measure taken when exigencies warrant. Chairman Jordan and
Commissioner Cohen assert, without any supporting reference, that an explosive
level of methane can be expected to cause serious injury “at any moment in
time.” Slip op. at 2. The Mine Safety and Health Administration (“MSHA”), the
agency entrusted by Congress with the right and duty to establish safe mining
rules and policies has not made such a finding. The Secretary has not argued
for, or pursued through rulemaking, an approach that would require inspectors
to issue imminent danger orders under the circumstances described by Chairman
Jordan and Commissioner Cohen.2 Inspectors have a duty to exercise
discretion in determining whether there is a reasonable expectation of death or
serious injury “before the condition can be abated.” Apparently, our colleagues
would continue to allow inspectors to exercise discretion but would make the
discretionary decision to issue an imminent danger order in the described
circumstances unreviewable by the Commission. Such an abdication of
responsibility would not be consistent with the Mine Act, the obligations of
the Commission, or the rights of operators for review.3

B. The evidence
does not demonstrate a reasonable expectation of death or serious injury   before
abatement.

As
the inspector entered an inactive crosscut, he observed a curtain the purpose
of which he knew was to “ventilate and remove methane gas.” Tr. 101. No miners
were present in the crosscut, and there was no equipment in the crosscut. Obviously,
therefore, no work was being performed. After traveling just approximately 25
feet further into the crosscut, he noticed a cavity in the roof. Tr. 100. The
cavity was approximately 7’(l) x 5’(w) x 2’(h). Tr. 104.

Standing
on a pallet, the inspector put his methane monitor into the cavity. As he
lifted it toward the high point, the reading was over 5% methane. Tr. 97. He
immediately issued the imminent danger order. To abate the violation, miners
simply advanced the curtain already known by the inspector to be ventilating
the crosscut by about 20 feet. As the mine inspector should have expected,
advancement of the curtain and the consequent immediate dilution of the methane
was easily and quickly accomplished – that is, the entire process took less
than twenty minutes in total and dissipation of the methane took no more than
15 seconds after the curtain was advanced. Tr. 206-07. Indeed, the inspector
actually delayed abatement somewhat by not permitting movement of the curtain
until power was cut and miners were removed from areas substantially inby the
cavity. Tr. 113-14.

The
inspector testified about the presence of four specific pieces of equipment as
possible ignition sources.[10]4 36 FMSHRC 235, 241 (Jan. 2014) (ALJ)
(citing Tr. 113-14, 117). Three of the suggested sources were inby the cavity,
located in intake air, and remote from the crosscut and cavity. The Judge
convincingly rejected them as possible ignition sources.

As
the fourth possible source, the inspector suggested an out of service Lo Trac
parked outside the crosscut at a distance of at least 200 feet from the cavity
in the crosscut. The Judge found that the inspector believed he had seen it
there. However, the Judge then found that mine witnesses had refuted the
inspector’s testimony that he had seen the Lo Trac in the crosscut earlier in
the day. Accordingly, there was no objective evidence that the Lo Trac had been
in the crosscut. 36 FMSHRC at 242.5 It was undisputed that at the time the
inspector issued the imminent danger order the Lo Trac was out of service, was
not in the crosscut, and was at least 200 feet from the cavity. Nonetheless,
the Judge accepted that the Lo Trac constituted a possible source for ignition
of the methane in the cavity before abatement.

In
sum, the situation encountered by the inspector was a small roof cavity in a
vacant crosscut without the presence of miners and with an obvious resource for
quick and easy abatement. Not only was no work underway but also no equipment,
working or otherwise, was in the crosscut. The methane was in a roof cavity
well above the mine floor and the evidence showed no hazard from possible flow
of methane from the cavity. Id. at 242; Tr. 400. The obvious step to
abate the condition was to direct air into the cavity by advancing a nearby
already hanging brattice cloth 25 feet.

Based
upon the record, therefore, it cannot be disputed that, for the Lo Trac to have
ignited the methane in the cavity before completion of the rapid abatement, it
would have to: (1) have been put back in service; (2) traveled into the
crosscut where it would have been forbidden to travel by virtue of 30 C.F.R. §
75.323(b) requiring all persons other than those performing abatement to have
been withdrawn until completion of abatement;[11]6 (3) traveled approximately 200 feet up the
crosscut; (4) gone through the area where the curtain was being moved 25 feet
to eliminate the presence of methane; (5) traveled directly underneath the
cavity; (6) sparked at the precise moment of being under the cavity; and (7)
the spark traveled several feet upward into the cavity. All of this would have
to occur before dilution of the buildup by extending the curtain 25 feet – a
quickly and easily completed process. The likelihood of the occurrence of all
these events is not reasonably expectable; indeed, it is wholly improbable.

Because
reasoned discourse cannot give rise to a “reasonable expectation” of the
sequential occurrence of all these events before dilution of the methane, it is
unsurprising that the Secretary did not present any evidence of an expectation
that the Lo Trac would be placed in service before the methane in the cavity
could be diluted, or that it had been sparking at any point before it was taken
out of service. The underlying conditions of this specific methane buildup did
not necessitate a snap decision to issue an imminent danger order when the
crosscut was vacant and an obvious means for rapid abatement was at hand. In
this inactive crosscut, the inspector had sufficient time to recognize that
there was not a reasonable basis to expect an ignition before the rapid
movement of the brattice forward.

As described above, there was not a reasonable
basis to expect the Lo Trac could pass underneath the cavity and spark upwards
prior to abatement. Thus, the problem with the granting of unreviewable
discretion suggested by our colleagues Chairman Jordan and Commissioner Cohen
is that it reads the word “imminent” out of the statute. We have noted
repeatedly that an imminent danger is one that could arise “at any time.” See,
e.g., Utah Power & Light Co., 13 FMSHRC at 1622; Connolly
Pacific, 36 FMSHRC at 1555. However, absent an ignition source nearby, the
hazard could not have arisen at any time. The only source relied upon by the
judge was too far away and was not actively engaged in mining activities. There
was no imminent danger, as defined by the statute and decades of Commission
case law.

In
closing, we emphasize that an explosive level of methane in a mine is a highly
dangerous circumstance. Inspectors must react quickly to such a circumstance. However,
the need for a quick reaction does not justify instantaneous over-reaction. Quick
reaction does not always mean instantaneous reaction. The Commission must
enforce all the words of the Mine Act. Commission precedent correctly
establishes that an investigation reasonable to the circumstances must precede
issuance of an imminent danger order and that a condition which may be abated
before a reasonable expectation of the occurrence of death or serious injury
may arise is not an imminent danger. Here, the facts establish that there was
not a reasonable basis for expecting an ignition before dilution of the
methane. Therefore, under these specific circumstances there was not an
imminent danger.

We dissent.

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1] Commissioner
Nakamura affirms the Judge's decision on the basis that it is supported by
substantial evidence. Chairman Jordan and Commissioner Cohen in a separate
opinion affirm the Judge's decision because they agree with the opinion of
Commissioner Nakamura that substantial evidence supports the decision of the
Judge upholding the imminent danger order, and on the basis that five percent
methane in active workings constitutes an imminent danger. Commissioner Young
and Commissioner Althen dissent, as they would reverse the Judge's holding on
the basis that it is not supported by substantial evidence and because they
disagree with the approach articulated by Chairman Jordan and Commissioner
Cohen.

[2] 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).

[3] On this same
date, the Commission is issuing a separate decision in a case involving a very
similar issue. Jim Walter Res. Inc., Docket No. SE 2011-407-R.

[4] A
Lo Trac machine is a
non-permissible piece of mobile equipment that hauls and delivers various supplies
to and from the long crosscut. When a piece of equipment is
"non-permissible," it lacks the protective safeguards to prevent
dangerous electrical currents or sparks from being produced. All face equipment
must be maintained in permissible condition.

30 C.F.R. § 75.503. "Permissible"
means "all electrically operated equipment taken into or
used inby the last open crosscut of an entry . . . designed, constructed, and
installed, in accordance with the specifications of the Secretary, to assure
that such equipment will not cause a mine explosion or mine fire, and . . . to
prevent, to the greatest extent possible, other accidents in the use of such
equipment." 30 C.F.R. § 75.2.  

[5] 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. I
need not reach this issue in this case, however, because the result will be the
same under either interpretation.

[6]
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)).

[7] McDonald
testified that he observed roof bolts, a pallet of blocks, cans of motor gear
and hydraulic oil, bags of rock dust, fire extinguishers, timbers and other
miscellaneous supplies stored in the crosscut. Tr. 115.

[8]
The
Judge's factual finding that the Lo Trac was tagged out is non-dispositive
because the Judge found that the Lo Trac was tagged out by the operator, and
not by MSHA. 36 FMSHRC at 243; Tr. 265. The
record shows that the operator tagged out the Lo Trac in order to fix a minor oil
leak "that would occur down the road." Tr. 265, 311. Nothing in the
record indicates that the operator would have been
prevented from putting the Lo Trac back into use for its intended purpose during
the time that the methane pocket existed.

[9] Citing to the
fact that subsequent to the issuance of the order the excessive methane was
abated within 20 minutes by extending an existing line curtain 25 feet to the
area of the cavity, the dissent argues that it was not reasonable for the
inspector to expect an ignition before the condition was abated. I disagree. A
determination of whether an inspector reasonably concluded that an imminent
danger existed is based upon a review of the information known or reasonably
available to the inspector at the time of issuance of the order. Island
Creek, 15 FMSHRC at 348. Here, the inspector testified that when he
inserted his gas detector to within 14 inches of the top of the cavity it
registered "over range," so that while he knew that the methane level
exceeded five percent, the level could be significantly higher by some unknown
quantity deeper in the cavity. Tr. 97, 104-05. Given the state of his
knowledge, the inspector did not abuse his discretion in issuing the order
based on his conclusion that an ignition was reasonably likely to occur before
the explosive concentration of methane could necessarily be abated.

1 Although he
could not recall their precise location, the Inspector testified to the
presence of eight additional miners in the area, in addition to the individuals
accompanying him. Tr. 182-3. Moreover, earlier in his inspection, while taking
a series of dust surveys, McDonald observed a Lo Trac machine. Tr. 92-3. The Lo
Trac is a non-permissible piece of mobile equipment, which means it does not
have an explosion-proof enclosure. Tr. 88-89, 116.

2 The Secretary’s
regulation at 30 C.F.R. § 75.2 defines "active workings" as "[a]ny
place in a coal mine where miners are normally required to work or
travel."

3 The Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976), was
the predecessor to the 1977 Mine Act.

4 Sections 303(h)
and 303(i)(1) and (2) state:

(h)(1) At the
start of each shift, tests for methane shall be made at each working place
immediately before electrically operated equipment is energized. Such tests
shall be made by qualified persons. If 1.0 volume per centum or more of methane
is detected, electrical equipment shall not be energized, taken into, or
operated in, such working place until the air therein contains less than 1.0
volume per centum of methane. Examinations for methane shall be made during the
operation of such equipment at intervals of not more than twenty minutes during
each shift, unless more frequent examinations are required by an authorized
representative of the Secretary. In conducting such tests, such person shall
use means approved by the Secretary for detecting methane.

(2) If at any
time the air at any working place, when tested at a point not less than twelve
inches from the roof, face, or rib, contains 1.0 volume per centum or more of
methane, changes or adjustments shall be made at once in the ventilation in
such mine so that such air shall contain less than 1.0 volume per centum of
methane. While such changes or adjustments are underway and until they have
been achieved, power to electric face equipment located in such place shall be
cut off, no other work shall be permitted in such place, and due precautions
shall be carried out under the direction of the operator or his agent so as not
to endanger other areas of the mine. If at any time such air contains 1.5
volume per centum or more of methane, all persons, except those referred to in
section 104(d) of this Act, shall be withdrawn from the area of the mine
endangered thereby to a safe area, and all electric power shall be cut off from
the endangered area of the mine, until the air in such working place shall
contain less than 1.0 volume per centum of methane.

(i)(1) If, when
tested, a split of air returning from any working section contains 1.0 volume
per centum or more of methane, changes or adjustments shall be made at once in
the ventilation in the mine so that such returning air shall contain less than
1.0 volume per centum of methane. Tests under this paragraph and paragraph (2)
of this subsection shall be made at four-hour intervals during each shift by a
qualified person designated by the operator of the mine. In making such tests,
such person shall use means approved by the Secretary for detecting methane.

(2) If, when
tested, a split of air returning from any working section contains 1.5 volume
per centum or more of methane, all persons, except those persons referred to in
section 104(d) of this Act, shall be withdrawn from the area of the mine
endangered thereby to a safe area and all electric power shall be cut off from
the endangered area of the mine, until the air in such split shall contain less
than 1.0 volume per centum of methane.

30
U.S.C. § 863(h)(1)(i)(2).

5 Section 303(t)
provides:

Each operator shall adopt a plan within
sixty days after the operative date of this title which shall provide that when
any mine fan stops, immediate action shall be taken by the operator or his
agent (1) to withdraw all persons from the working sections, (2) to cut off the
power in the mine in a timely manner, (3) to provide for restoration of power
and resumption of work if ventilation is restored within a reasonable period as
set forth in the plan after the working places and other active workings where
methane is likely to accumulate are reexamined by a certified person to
determine if methane in amounts of 1.0 volume per centum or more exists
therein, and (4) to provide for withdrawal of all persons from the mine if
ventilation cannot be restored within such reasonable time. The plan and
revisions thereof approved by the Secretary shall be set out in printed form and
a copy shall be furnished to the Secretary or his authorized representative.

30 U.S.C. § 863(t).

6 30 C.F.R. §
75.323(b)(2) provides in relevant part:

(2) When 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—

(i) Everyone except those persons
referred to in §104(c) of the Act shall be withdrawn from the affected area;
and

(ii) Except for intrinsically safe AMS,
electrically powered equipment in the affected area shall be disconnected at
the power source.

7 See Safety
Standards for Underground Coal Mine Ventilation, 61 FR 9764-01, 9778 (Mar. 11,
1996) (amending 30 C.F.R. § 75.323) (“the presence of methane in . . . [a
working place, an intake air course, or an area where mechanized mining
equipment is being installed or removed] . . . can pose a significant risk to
miners and therefore their withdrawal from the affected area is essential to
their safety”).

1
For this reason, we have joined our colleagues in unanimously finding an
imminent danger in Jim Walter Res., No. SE 2011-407-R (being issued
concurrently with this decision).  

2 Nobody – least
of all us – questions the danger posed by methane in underground mines, or that
such danger was among the Act’s animating purposes. But methane and imminent
dangers are both specifically addressed in the original Act, which further
imposes on the Secretary a duty to promulgate improved standards by rule to
protect miners. The Secretary has not done so by declaring explosive methane in
active workings to be a per se imminent danger in the absence of an
ignition source despite Commission decisions.

3 Chairman Jordan
and Commissioner Cohen write at length in support of a proposition with which
everyone involved in mining agrees – methane is very dangerous. Their support
for their imminent danger approach to this case, however, comes down to a one
sentence assertion that methane may explode “at any time” – an assertion
for which they cite no support and in which they do not consider the need for
an ignition source. They also state that their approach – an approach that
would automatically “justify” – that is, require Commission approval, of any
imminent danger order issued by an inspector for explosive methane in active
workings despite the factual circumstances and without substantive review would
not conflict with Commission precedent. While they have limited the application
of this new suggestion of a Commission rule to active workings, as a practical
matter there was no greater danger of a methane explosion in this case than
there was in the Island Creek and Cumberland Coal Resources
cases. See supra. The danger of an explosion could not arise “at any
time” here, because there was no likelihood of an ignition of explosive methane
without a plausible ignition source. Further, the Commission has long held that
an inspector must make a reasonable investigation of the facts before issuing
an imminent danger order – a principle we recently re-affirmed in Cumberland
Coal, 28 FMSHRC at 556-58. Their suggestion of automatic deference to the
discretionary decision of an inspector would obliterate that requirement and is
thus in direct conflict with an established line of our precedent. And finally,
Island Creek specifically focused on the unavailability of an ignition
source, not merely the fact that the methane was located in the gob. See
15 FMSHRC at 347-48 (noting Secretary’s acknowledgment that methane
accumulation in the gob did not create an imminent danger in the absence of an
ignition source).

4 The inspector did
not suggest any general mine hazard, such as the flaking of a piece of roof, as
a possible ignition source.

5 As noted above,
the Commission does not review an imminent danger order based upon the
inspector’s subjective belief but rather the objective facts that actually
existed. Mill Branch, 37 FMSHRC __  , slip op. at 7, VA
2012-435-R et. al. (July 23, 2015) citing Island Creek, 15 FMSHRC
at 346.

6 The concurrence
notes the hazards of methane in intake air courses and the requirement that the
operator withdraw miners pursuant to 30 C.F.R. § 75.323(b). Slip op. at 7 and
n.7. They do not note, however, that the operator was practically in compliance
with the requirements of this subsection, nearly from the moment that the
problem was discovered. There was no electronically-powered equipment in the
area where the methane was discovered. Changes to the ventilation system were
undertaken immediately upon discovery of the methane. While there were two
other miners in the general vicinity of the long crosscut, nobody was present
in the immediate area of the cavity where the methane was confined except those
persons working to solve the problem, including the inspector. Nor does the
record establish that the mine was in production or that any other work was
being performed. While the concentration in this case was greater than the one
percent level triggering section 75.323(b), the conditions and circumstances
show that even without the ordered withdrawal, the operator was nearly in what
the regulations have deemed an appropriate safety posture pending the reduction
in methane to a level below one percent – which, again, was nearly
instantaneous. Those conditions must be taken into account, were known or
should have been known to the inspector, and refute the assertion that a
methane explosion could have occurred “at any time” before it could be abated.