Jim Walter Resources, Inc. v. Secretary of Labor, MSHA

Plain-English summary

Jim Walter Resources contested an imminent-danger withdrawal order issued at its underground No. 7 coal mine after an MSHA inspector measured methane above the explosive threshold in a roof cavity. Judge James G. Gilbert found that several fixed electrical sources were too far downwind to pose a likely ignition risk. He nevertheless upheld the order because a nearby mobile Lo Trac had exposed electrical and mechanical components, could enter the crosscut, and could produce a spark before the methane was abated. The judge concluded that the inspector reasonably treated the machine as a potential ignition source and did not abuse his discretion. The Commission later affirmed this ruling in se-2011-681-r-commission.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(j) and 817(a)
• Outcome: The August 13, 2012 imminent-danger order was affirmed as issued.
• Subsequent review: The Commission later affirmed the ALJ in se-2011-681-r-commission.
• Key point: An inspector may reasonably find an imminent danger when explosive methane is near mobile, nonpermissible equipment that could enter the affected area before abatement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

January 23, 2014

jim walter resources, inc.,

Contestant,

v.

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent.

CONTEST
PROCEEDING

Docket
No. SE 2012-681-R

Order
No. 8522884; 08/13/2012

Mine
ID: 01-01401

Mine: No. 7 Mine

DECISION

Appearances:               Carmen L. Alexander, Esq.,
Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia, for the
Petitioner

David
M. Smith, Esq. and Allen B. Bennett, Esq., of Birmingham, Alabama, for the
Respondent

Before: Judge James
G. Gilbert

This
case is before me upon a notice of contest filed by Jim Walter Resources, Inc.
(“JWR”) following the issuance of an imminent danger order, Order No. 8522884,
pursuant to section 107(a), 30 U.S.C. § 817(a), of the Federal Mine Safety and
Health Act of 1977 (the “Act”).  The parties presented testimony and evidence
at a hearing held in Birmingham, Alabama.      

I.                  
Stipulations
of Fact

1.         JWR operates the No. 7
mine, an underground coal mine located in Brookwood, Alabama, and the mine’s
operations affect commerce within the meaning and scope of the Federal Mine
Safety and Health Act of 1977, as amended.

2.         The mine is subject to
the jurisdiction of the Act.

3.         The administrative law
judge and Federal Mine Safety and Health Review Commission have jurisdiction to
hear this matter.

4.         The mine is subject to
regular inspections by the Mine Safety and Health Administration pursuant to section
103(a) of the Act, 30 U.S.C. § 813(a).

5.         On August 13, 2012,
MSHA inspector Larry McDonald was at the No. 7 mine to conduct the rock dust
survey on the No. 8 section of the mine.

6.         JWR demonstrated good
faith abatement.

7.         JWR timely contested
the imminent danger order in this proceeding and timely served its notice of
contest to the Secretary of Labor.

II.               
Background

JWR
operates the No. 7 mine, an underground coal mine located in Brookwood,
Alabama.  Stipulation No. 1.  The mine is subject to the jurisdiction of
the Mine Safety and Health Act of 1977, as amended.  Id.; Stipulation
No. 2.  The mine is also subject to regular inspections by the Secretary’s Mine
Safety and Health Administration (“MSHA”) pursuant to section 103(a) of the
Act, 30 U.S.C. § 813(a), as well as five day spot inspections due to the
quantity of methane liberated at the mine.  Stipulation No. 4; Tr. 60,

65.  The mine is considered a very gassy mine, liberating 20 million cubic feet
of methane in a 24 hour period.  Tr. 65.  MSHA Inspector Larry McDonald was
familiar with the mine, its history as a gassy mine, and previous ignitions
that occurred in the mine.  Tr. 65-72; Government’s Exhibit (Gov. Exh.) 1. 

On
August 13, 2012, McDonald issued an imminent danger order under section 107(a)
of the Act as the result of a buildup of methane in a roof cavity in Section 8
of the No. 7 mine. Gov. Exh. 9.    

Section
107(a) of the Act provides:

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

30
U.S.C. § 817(a).

Section
3(j) of the Act defines “imminent danger” as 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).  Section 107(a) of the Act provides for the
issuance of an order requiring the withdrawal of persons in areas of a mine who
are exposed to such an imminent danger.  “Imminent danger orders permit an
inspector to remove miners immediately from a dangerous situation, without
affording the operator the right of prior review, even where the mine operator
did not create the danger and where the danger does not violate the Act or the
Secretary’s regulations.”  Jim Walter Resources, Inc., 33 FMSHRC 3211
(December 2011) (ALJ).  “This is an extraordinary power that is available only
when the ‘seriousness of the situation demands such immediate action.’” Id. (citing
Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting
Sen. Rep. No. 91-411, reprinted in Senate Subcomm. on Labor, Comm. on
Labor and Public Welfare, Part I Legislative History of the Federal Coal Mine
Health and Safety Act of 1969, at 215 (1975))).

The
107(a) order in this case stated as follows:

Methane was allowed to accumulate
in a high cavity on #8 section (MMU-008) between the #2 intake entry and the #3
intake belt entry, which is the long crosscut.  This crosscut was located at
spad #24394 in the #2 intake entry.  The high cavity was approximately 165 foot
[sic] in the crosscut from the #2 intake, [sic] There was a line
brattice curtain hung within 25 foot [sic] from the high cavity.  Upon
inspection of the high cavity, that measured approximately 5 foot [sic]
in width by 7 foot [sic] in length by 2 foot [sic] in depth into
the mine roof, detected a concentration of methane gas that went over range on
the X-AM Drager multi-gas detector.  Bottle sample was taken bottle #R9897.  An
oral 107 (a) imminent danger order was issued to John Connellan (Safety
Supervisor), at 11:00 hours on this date.  Power was immediately re-moved [sic]
from the section and only miners needed to improve ventilation was [sic]
allowed in the area.  Citation #8522885 is being issued in conjunction with
this order.

Gov. Exh.
9.

JWR
contests the imminent danger order in this proceeding.  For the reasons that
follow, I find that the MSHA inspector did not abuse his discretion in the issuance
of the 107(a) order on August 13, 2012.

III.            
Hearing
Testimony

A.   
Testimony
of Inspector Larry McDonald

On
August 13, 2012, MSHA Inspector Larry McDonald conducted an inspection at the
No.7 mine, accompanied by JWR safety supervisor John Connellan and United Mine
Workers of America (“UMWA”) miners’ representative Steve Pendley (referred to
collectively as “the inspection party”).  Tr. 79, 264.  On that day, McDonald entered
the mine by elevator, rode a diesel manbus down the section 8 track, and
traveled inby on the section 8 track to the end of the track, where the
inspection party exited the manbus.  Tr. 80.  He then turned left into the
number 2 entry, where he saw the Lo Trac and inspected it.  Tr. 92-93.  The Lo
Trac passed inspection.  Tr. 93.  McDonald then continued to the spad number
for his first rock dust survey.  Tr. 93.  After completing a rock dust survey
in the number 1 entry, McDonald observed the Lo Trac enter the long crosscut by
the number 2 entry where the cavity at issue in this case was located.  Tr. 95. 
McDonald was approximately 520 feet from the long crosscut at the time he made
his observation.  Tr. 159.

McDonald
continued to conduct his rock dust survey as the inspection party made their
way toward the long crosscut.  McDonald observed his methane detector fluctuate
as he walked toward the number 2 entry.    

And at that time, I came through
the man door leading to the number 3 entry, traveling toward the number 2 entry
in this long crosscut.  As I come through the door, I had my detector already
in my hand and I observed the change in methane, that it went up.

Tr. 96.

At
this point McDonald observed a line curtain hung up in the long crosscut, which
he surmised was present to ventilate the area of methane.  Tr. 96.  When he
reached the right corner of the brattice to make a reading, he observed a
cavity in the roof of the long crosscut.  Tr. 96.  McDonald then stepped up on
a pallet of blocks and raised his detector into the cavity.  Tr. 97.  About two
inches into the cavity above the roof line the reading was 1 percent.  Tr. 97. 

As
he continued to raise the detector further into the cavity, the readings
continued to rise past 5 percent.  Tr. 97.  At this point, the detector was
approximately 14 inches from the peak of the cavity roof.  Tr. 97.  McDonald
then had Pendley bring his detector over to compare and see if he obtained the
same results.  Tr. 97.  Pendley’s detector confirmed the reading.  Tr. 97.  Connellan
also brought his detector and all three detectors confirmed McDonald’s
reading.  Tr. 97.  At this point, McDonald issued the imminent danger order.  Tr.

97.  McDonald then took a bottle sample of the air in the cavity which
eventually identified a reading of 51.77 percent methane.  Tr. 104, 110; Gov.
Exh. 6, Gov. Exh. 7.     

McDonald
testified on cross-examination that there were eight miners in the vicinity,
though he was not clear on where those miners were located, or how close to the
long crosscut those miners may have been.  Tr. 183.  The closest miners not
part of the inspection party were identified as Eric Church and James Woods. 
Tr. 123.    

B.    
Testimony
of Miner Eric Church

Mine
worker Eric Church was present in section 8 when McDonald, Connellan, and
Pendly arrived for their inspection.  Tr. 223.  According to Church, McDonald
did not inspect the Lo Trac after exiting the manbus prior to his rock dust surveys;
instead, Church requested that McDonald inspect the Lo Trac after he had the
chance to clean and degrease the Lo Trac.  Tr. 224.  Church waited for the
inspection party to pass before driving the Lo Trac to the washdown station
just outside the long crosscut where the cavity containing the methane was
located.  Tr. 224, 226-28.  Church stated that the Lo Trac never entered into
the long crosscut at any point during the time the inspection was ongoing, nor
did it move from its parked location at the washdown station in the number 2
entry for the next 24 hours.  Tr. 228-31.  McDonald inspected the Lo Trac at
this location, and the Lo Trac was “tagged out” as a result of that inspection,
and, as a result, the Lo Trac was out of operation until the identified problem
could be repaired.  Tr. 230. 

Testimony of
Safety Supervisor John Connellan

Mr.
Connellan and Mr. Pendley joined Inspector McDonald for the rock dust survey.  Tr.
258, 264.  After traveling on the manbus to section 8, the inspection party
exited the manbus.  Tr. 264-65.  Church had been present detrashing the track,
and after exiting the manbus, Connellan spoke with Church.  Tr. 264.  McDonald
then inspected the Lo Trac that was present in section 8 at the time.  Tr. 265. 
The Lo Trac had an unidentified issue, and Connellan or Pendley placed a danger
tag on the Lo Trac.  Tr. 265.  Connellan then instructed Church to bring the Lo
Trac to the washdown station in the number 2 entry, clean it, and locate an
electrician to correct the Lo Trac.  Tr. 265.  The inspection party then took
various rock dust surveys until it approached the number 2 entry.  Tr. 267.  Connellan
entered the long crosscut first and walked past the cavity in the long crosscut,
almost to the end, but realized that McDonald and Pendley were not with him.  Tr.

270.  At this point, he stopped and turned and observed Pendley and McDonald
taking gas measurements by the brattice line.  Tr. 270-71.  He checked his
spotter and noted that his readings of methane were two tenths to three tenths. 
Tr. 271.  He walked back to where Pendley and McDonald were taking readings and
observed McDonald step onto some blocks, raise his methane detector into the
cavity, and the detector alarmed.  Tr. 271.  McDonald then told him to cut the
power and that he was issuing an imminent danger order. Tr. 271. 

Connellan
then walked down the long crosscut to the number 2 entry at approximately Spad
No. 24395 where he observed Church by the washdown station and instructed
Church to get a blower curtain.  Tr. 277, 279; Gov. Exh. 3.  He then proceeded
in the number 2 entry to the power center, where he met Randall Emory, the day
shift supervisor, and he informed Emory that they had an imminent danger order
in the long crosscut and instructed Emory to cut power.  Tr. 276.  Emory turned
off the power at the power center near Spad No. 24959.  Tr. 276; Gov. Exh. 3. 
Emory accompanied Connellan back to the long crosscut to where McDonald and
Pendley remained near the cavity.  Tr. 276-77.  McDonald informed Connellan
that he took a bottle sample.  Tr. 277.  Connellan also measured the cavity and
placed his methane detector in the cavity where it alarmed.  Tr. 277.  McDonald
then told Connellan that it was in his best interest to shut down the belt
line.  Tr. 277.  Connellan travelled back through the mandoor to the number 3
entry and hit the emergency stop on the belt line.  Tr. 278.  The parties then
hung the blower curtain sufficient to ventilate the cavity.  Tr. 278.  McDonald
stepped back on the blocks and placed his methane detector into the cavity and
it did not alarm.  Tr. 282.  At that point, McDonald terminated the imminent
danger order.  Tr. 282. 

C.   
Testimony
of Engineer Tom McNider

Mr.
McNider is general manager of engineering for JWR.  Tr. 324.   Included in his
job functions is overseeing the ventilation plan for the No. 7 mine.  Tr. 325; Gov.
Exh. 17.  McNider stated that in his best judgment, based upon his knowledge of
the ventilation plan for this mine, the air in the number 2 entry was moving
approximately 65,000 cubic feet per minute (“CFM”), and that the air diverted
into the long crosscut by the existing blower curtain was something less than
65,000 CFM on the date of the citation.
 Tr. 354, 365. 

D.   
Testimony
of Expert Witness Dr. Jerry Tien

Dr.
Tien was accepted as an expert witness to testify on the issue of methane
dilution.  Tr. 385.  Dr. Tien stated that
with 6,500 CFM of air moving into the cavity, the cavity would achieve full
methane dilution (15 methane reading or less) in .02106 of a second.  Tr. 394. 
Dr. Tien further opined that the diluted methane from the cavity would not have
escaped in a volatile amount (5-15% methane) after its dilution, once it entered
the long crosscut.  Tr. 400.  Dr. Tien said the methane would travel along the
roof line, as it is lighter than air, and the dilution with the airstream would
carry it from the mine.  Tr. 400.  He opined that because the identified
ignition sources were downwind of the cavity containing the methane, there was
little likelihood that any of the identified ignition sources could act as an
ignition source given their existing location at the time of issuance of the
107(a) order.  Tr. 402-03. 

E.    
Rebuttal
Testimony of Inspector Larry McDonald

In
rebuttal to the lack of air quantity readings near the cavity location at the
time of issuance of the order, McDonald stated that he did not take air
quantity measurements at the location of the cavity in the long crosscut because
there was insufficient air movement to operate the anemometer blades.  Tr.
426-27. 

IV.            
Discussion

To
support a finding of imminent danger, an inspector must conclude that “the
hazardous condition has a reasonable potential to cause death or serious injury
within a short period of time.”  Utah Power & Light Co., 13 FMSHRC
1617, 1622 (Oct. 1991).  In reviewing an inspector’s finding of imminent
danger, the Commission must support the inspector’s determination “unless there
is evidence that he has abused his discretion or authority.”  Rochester
& Pittsburgh Coal Co., 11 FMSHRC 2159, 2164 (Nov. 1989) (quoting Old
Ben Coal Corp. v. IBMA, 523 F.2d 25, 31 (7th Cir. 1975) (emphasis
omitted)).  The Commission has held that an “abuse of discretion” is found when
“there is no evidence to support the decision or if the decision is based on an
improper understanding of the law.”  Energy West Mining Co., 18 FMSHRC
565, 569 (Apr. 1996).

While
the crucial issue is whether the inspector abused his discretion or authority,
the judge is not required to accept an inspector’s subjective “perception” that
an imminent danger existed.  Rather, the judge must evaluate whether, given the
particular circumstances, it was reasonable for the inspector to conclude that
an imminent danger existed.  The Secretary still bears the burden of proving
his case by a preponderance of the evidence.  Although an inspector is granted
wide discretion because he must act quickly to remove miners from a situation
that he believes to be hazardous, the reasonableness of an inspector's imminent
danger finding is subject to subsequent examination at the evidentiary
hearing.  Jim Walter Res., Inc., 29 FMSHRC 1043 (Nov. 16, 2007).

The
critical question in determining whether an accumulation of methane presents an
imminent danger is whether there is an ignition source that might reasonably be
expected to cause an explosion, resulting in death or serious injury within a
short period of time.  Consol of Kentucky, Inc., 30 FMSHRC 1 (Jan. 2008);
see also Island Creek Coal Co., 15 FMSHRC 3339, 346-247 (Mar.
1993); Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988).[1]

A.   
Potential
Ignition Sources

There
is no debate that at the time of the issuance of the 107(a) order, there was a
buildup of methane in the cavity in the long crosscut that was in the explosive
range.  While JWR went to great lengths to discuss the effects of remediation
of the methane buildup, and the rapid method available for dissolution of
methane, the issue in this case is not the speed of remediation but whether
there existed a potential ignition source for the buildup of methane in the
cavity sufficient to justify the issuance of the 107(a) order.  McDonald identified
four separate potential ignition sources that led to his issuance of the
imminent danger order: (1) the high voltage cable; (2) the battery charger; (3)
the power center; and, (4) the Lo Trac.  Tr. 113-14, 117. 

The
high voltage cable was located “coming down the number 2 entry.”  Tr. 117.  There
was no evidence that the high voltage cable was actually in the long crosscut. 
The number 2 entry is downwind of the long crosscut.  Tr. 96; Gov. Exh. 3.  As
Dr. Tien testified, ignition sources located downwind of the cavity were
unlikely to produce a spark to ignite methane in the long crosscut given that
the spark would travel downwind as well.  Tr. 408.  Methane that might be
expected to “leak” from the cavity would be quickly diluted upon entering the
long crosscut, and further dilute as the gas enters the number 2 entry.  Tr.

403.  Also, the diluted methane, none of which would be in the combustible
range due to the dilution, would travel along the roof line as it exited the
mine through normal ventilation procedures.  Tr. 400.  Indeed, the ventilation
in the mine was not at issue in this case.  Accordingly, I find that methane
that might have escaped the cavity would be properly diluted and rendered
harmless once it entered the long crosscut and eventually down the number 2
entry along the roofline, passing the high voltage cable.  For these reasons, I
find that the high voltage cable located in the number 2 entry was not a likely
ignition source for the buildup of methane in the cavity at the time of
issuance of the 107(a) order. 

Likewise,
the battery charger as an ignition source suffers the same fate.  McDonald
credibly testified that the battery charger is an ignition source “given these
battery chargers have little regulators behind them, and it’s going to pull air
across that battery charger to keep the -- when you’re charging batteries, they
produce hydrogen during the charging process, and they have to be ventilated
straight into the return.”  Tr. 117-118.  However, there was no evidence that
the battery charger was a mobile piece of equipment or that it would likely be
used in or near the cavity in the long crosscut.  As this piece of equipment
was located downwind of the cavity, and beyond the long crosscut in the number
2 entry, it was unlikely that the battery charger could act as an ignition
source for the cavity.  Also, as any methane that might escape the cavity would
be sufficiently diluted before reaching the battery charger, there was no
concern for ignition beyond the long crosscut or in the number 2 entry.  The
power center located at Spad No. 24959 is also not located near enough to the
cavity, nor upwind of the cavity, to be reasonably considered to be a potential
ignition source at the time of issuance of the imminent danger order.  Gov.
Exh. 3.  This leaves a review of the potential of the Lo Trac as an ignition
source. 

McDonald
testified that the Lo Trac was a potential ignition source because it is a
piece of “non-permissible” equipment.  Tr. 88.  “Non-permissible” equipment
means it does not have explosive proof enclosures on it.  Tr. 89, 209-10.  The Lo
Trac has electrical connections that are open, an exposed alternator, and
frictional brakes that may cause sparks.  Tr. 209-210.  While mine witnesses
refuted McDonald’s testimony that he observed the Lo Trac in the long crosscut
on August 13, 2012, I find that McDonald reasonably believed that he observed
the operation of the Lo Trac in the long crosscut, and that such operation
could be a potential ignition source.  In its location in the number 2 entry,
Respondent is correct that the Lo Trac, like the aforementioned sources, was
not a potential ignition source.  However, unlike the above cited potential
ignition sources, the Lo Trac is a mobile piece of equipment.  Witnesses for
the mine testified that the Lo Trac is certainly capable of traveling in the
long crosscut.  Tr. 315.  I need not find that the Lo Trac did, in fact,
operate in the long crosscut on August 13, 2012, to find that the Lo Trac was a
potential ignition source. 

The
Lo Trac was only a short distance from the long crosscut after it was brought
to the washdown station by Mr. Church.  Tr. 224, 226, 274-75; Gov. Exh. 3.[2] 
McDonald could reasonably anticipate that the Lo Trac would be used for
delivery of supplies or other intended uses in the long crosscut at some point
in the near future, and certainly before the condition could be abated.  Thus,
even if McDonald was mistaken that the Lo Trac entered the long crosscut as he
observed prior to issuance of the 107(a) order, given the Lo Trac’s exposed
components, its lack of explosive proof enclosures, its proximity to the long
crosscut, and its mobility, it was not unreasonable for McDonald to consider
the Lo Trac as a potential ignition source.

JWR
contends that the Lo Trac could not be an ignition source because the distance
between the engine’s exposed machinery and the roof cavity, some four or five
feet, made the possibility of ignition highly unlikely.  Tr. 400.  It also
points out that because methane is lighter than air, it will travel along the
roof line if it escapes from the cavity and that because it will dissipate
rapidly once it leaves the cavity, the cavity remains the sole location of
methane in the explosive range, and thus any ignition must occur in the cavity. 
Tr. 400.  As the Lo Trac is not likely to spark upwards some four to five feet
sufficient to ignite the methane, considering the Lo Trac to be an ignition
source, even if it were to enter the long crosscut, is a bridge too far.  Tr.
408, 415.   

I
have considered these arguments, and I agree that the likelihood of ignition
from the Lo Trac might appear somewhat remote.  However, it is not impossible,
nor is it even improbable.  A potential ignition source is precisely that.  In
Jim Walter Resources, Inc., 33 FMSHRC 3211, 3217 (Dec. 2011) (ALJ), potential
ignition sources included such remote occurrences as clothing static.  In other
words, when methane gathers in the explosive range, any spark is an ignition source,
even if the likelihood of that spark seems somewhat remote.  The issue is
whether the inspector’s decision to consider the possibility that the Lo Trac
could enter the crosscut and a spark therefrom could ignite the methane is a
reasonable one.  Potential ignition sources are by their nature speculative. 
That speculation must be within the realm of reasonable probability to support its
existence as a potential ignition source.  While I am sympathetic to JWR’s
position, I cannot discount McDonald’s conclusion that the Lo Trac may spark if
driven in the crosscut.  While that spark may have to travel upwards as much as
four or five feet “at exactly the right angle at the right moment to make it
happen” it would be sufficient to ignite the methane in the cavity.  Tr. 414-15;
Utah Power & Light Co., 13 FMSHRC at 1622 (“[w]ithout considering
the ‘percentage of probability that an accident will happen,’ the inspector
must determine whether the condition presents an impending threat to life and
limb.”).       

While
other identified potential ignition sources were downwind of the crosscut, and
not likely to enter the crosscut or be in or near the cavity itself, the Lo
Trac is a mobile piece of machinery that can be reasonably expected to travel to
various portions of the mine, including the long crosscut.  The fact that the Lo
Trac had been “tagged out” for repair (not by order of the inspector but by
mine authorities) is not dispositive on this issue.  Tr. 230.  The Lo Trac was
in an operable condition at the time of the issuance of the imminent danger
order as evidenced by Church’s movement of the Lo Trac to the washdown station
just outside the long crosscut in the number 2 entry.  Tr. 224.  Nothing
prevented its use by mine personnel for its intended purpose.  The proximity of
the Lo Trac to the cavity, combined with McDonald’s observation that the Lo
Trac had been operating in the long crosscut that day, was sufficient for
McDonald to reasonably conclude that the Lo Trac was a potential ignition
source.  I cannot find that Inspector McDonald abused his discretion in the
issuance of the imminent danger order when he reasonably believed that the Lo
Trac could, and did, enter the long crosscut while the buildup of methane remained
in an unremediated condition.  

B.    
Immediate
Danger

Respondent
argued that the facts of this case lack the immediacy aspect of an imminent
danger.  “An imminent danger is present when ‘the situation is so serious that
the miners must be removed from the danger forthwith when the danger is
discovered without waiting for any formal proceeding or notice.’”  Utah
Power & Light Co., 13 FMSHRC 1617, 1621 (Oct. 1991) (quoting Sen. Rep.
No. 91-411, reprinted in Senate Subcomm. on Labor, Comm. on Labor and Public
Welfare, Part I Legislative History of the Federal Coal Mine Health and Safety
Act of 1969, at 215 (1975)).  Respondent elicited testimony from McDonald that
the immediacy considered under an imminent danger order means the danger may
occur and is “close and fixing to happen.”  Tr. 131-32.  Respondent correctly
states in its post hearing brief that the immediacy present in an imminent
danger situation is among considerations that distinguish an imminent danger
order from a “significant and substantial” (S&S) violation.  Jim Walter
Resources Inc.’s Post-Hearing Brief at 15.  Thus, when reviewing an
imminent danger order, it is important to consider whether the immediacy of the
situation justifies the issuance of the order. 

In
an attempt to negate immediacy, Respondent presented expert testimony that
addressed the rapid dissolution of methane after it escapes the cavity, thereby
arguing that a danger that can be remediated rapidly cannot act as an imminent
danger.  This argument has been rejected previously because the issue is not
the rapidity of the abatement but the potential for injury or death if the
methane is left in an unremediated condition and normal mining operations are
permitted to continue.
 Eastern Assoc. Coal Corp. v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974).

Respondent
also argued that the absence of an identifiable ignition source in the long
crosscut within the immediate vicinity of the cavity made the finding of
immediacy unreasonable.  I accept the expert’s analysis on the issue of ventilation,
as reflected by my decision to discount the potential ignition sources downwind
of the cavity.  However, Respondent’s focus on immediacy places a high burden
on the inspector that section 107(a) does not require.  An ignition source need
not be in the immediate vicinity of the methane buildup in a “ready to spark”
condition for it to be a potential ignition source.  It need only exist within
a reasonable proximity that an experienced inspector can conclude presents an
imminent danger if the ignition source were brought in contact with methane in
the explosive range.  Such determinations are fact specific and are based upon
the inspector’s knowledge of normal mining operations.  This is not a situation
in which the inspector opined about such potential ignition sources as roof
falls or lightning.  Consol of Kentucky, Inc., 30 FMSHRC at 6.  Rather,
the potential ignition source identified by the inspector was just beyond the
long crosscut in an operable condition.

While
the other identified potential ignition sources were not likely to spark near
the methane build-up given their location at the time of issuance of the order,
the Lo Trac was close by, operable, and capable of entering the long crosscut
at any time.  While not in a position directly beneath the methane filled
cavity at the time of issuance of the 107(a) order, the inspector knew it was
just beyond the crosscut in the number 2 entry and that it could reasonably be
expected to enter the long crosscut under normal mining operations.  There is
evidence in the record that the long crosscut was the source of some activity,
and given the presence of materials stored in the long crosscut, it was not
unreasonable for the inspector to assume that the Lo Trac might enter the long
crosscut to retrieve or move such materials in the foreseeable future.  That
knowledge was sufficient to establish imminence and render the Lo Trac a
potential ignition source for the methane accumulation in the cavity.[3] 

C.   
Post-Hoc
Justification

Finally,
Respondent suggested that the inspector’s identification of potential ignition
sources constituted a post-hoc justification for issuance of the
imminent danger order.  Tr. 36.  I credit the inspector’s testimony that while
he focused on the build-up of methane in the cavity as the basis for issuance
of his imminent danger order, he knew of the existence of the potential
ignition sources at the time he issued the order.  The inspector did testify
that he believed that the build-up of methane alone justified his 107(a) order,
but in addition he testified that the identified ignition sources discussed
above also informed his decision to issue the imminent danger order.  I have no
reason to doubt the credibility of the inspector on that issue.     

V.               
Conclusion

For
the above stated reasons, I find the Secretary has demonstrated by a
preponderance of the evidence that Inspector McDonald did not abuse his
discretion.

ORDER

The
Imminent Danger Order issued on August 13, 2012, as reflected by Citation
8522884, is AFFIRMED as issued.

/s/
James G. Gilbert               

James G. Gilbert

Administrative Law Judge

Distribution
(Certified Mail):

Josh
Bennett, Esq., Maynard Cooper & Gale PC, 1901 6th Avenue North,
2400 AmSouth/Harbert Plaza, Birmingham, AL 35203

Guy W.
Hensley, Esq., Walter Energy, Inc., 3000 Riverchase Galleria, Suite 1700,
Birmingham, AL 35244

Carmen
Alexander, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth
Street, SW, Room 7T10, Atlanta, GA 30303 

[1] The Secretary
presents an alternate theory in support of his case.  The Secretary argues that
if there does not exist an ignition source based on the facts of this case, the
imminent danger order must be upheld, as the presence of methane in the
explosive range alone is sufficient evidence to issue an imminent danger order
under section 107(a) without identification of an ignition source.  This
argument was referred to in a recent case as a “per se rule of 5 percent
methane.”  Jim Walter Resources, Inc. v. Sec’y of Labor, 33 FMSHRC 3211,
3220 (Dec. 2011)(ALJ).  As I find that an ignition source exists, I need not
reach the Secretary’s alternate theory in support of the 107(a) order.

[2] The Lo Trac was
parked by the number “3” of Spad No. 24935 as identified by the witness on
Government’s Exhibit 3. Tr. 274-75.

[3] In addition to
the inspection party, two miners were identified as being within the vicinity
of the long crosscut and would likely be seriously injured in the event of an
explosion in that area.  Tr. 123.  The record is unclear as to exactly who else
may have been present, or whether the mine was “in production” at the time of
the issuance of the 107(a) order.  Nevertheless, I find that there was
sufficient activity in or near the long crosscut to place miners located in
that area in danger of “death or serious physical harm” in the event of an
explosion of methane in the cavity in the long crosscut.