Jim Walter Resources, Inc.

Plain-English summary

MSHA issued an imminent-danger withdrawal order after receiving reports that miners were using timbers and crib blocks in various ways to advance longwall shields, sometimes while holding the supports by hand near falling-rock and pinch-point hazards. Judge Avram Weisberger found that the practices could present serious hazards but that the evidence did not establish a reasonable potential for death or serious injury within the short period required for an imminent-danger order. He dismissed the withdrawal order because no inspector had personally observed an imminent-danger condition and the inspector did not identify a sufficiently specific immediate threat. The decision did not determine whether the practices could support a significant-and-substantial violation.

Decision snapshot

• Governing provision: 30 U.S.C. § 817(a)
• Outcome: The imminent-danger withdrawal order was dismissed.
• Key point: A serious potential hazard is not enough for an imminent-danger order. The evidence must show a reasonable potential for death or serious injury within a short period.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                         5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041


                      September 6, 1995

JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING
Contestant :
v. : Docket No. SE 95-404-R
: Citation No. 3198331; 8/2/95
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : No. 4 Mine
ADMINISTRATION (MSHA), : Mine I.D. No. 01-01247
Respondent :
and :
:
UNITED MINE WORKERS :
OF AMERICA, :
Intervenor :

                            DECISION

Appearances: R. Stanley Morrow, Esq., Jim Walter Resources,
Inc., Brookwood, Alabama, for the Contestant;
David M. Smith, Esq, J. Alan Truitt, Esq.,
Maynard, Cooper & Gale, P.C., Birmingham, Alabama,
for the Contestant;
William Lawson, Esq. Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for the Respondent;
Patrick K. Nakamura, Esq., Nakamura & Quinn,
Birmingham, Alabama, for the Intervenor.

Before: Judge Weisberger

                    Statement of the Case

 This case is before me based upon a notice of contest

filed by Jim Walter Resources, Inc. (Contestant) challenging
the issuance by the Secretary of Labor (Respondent) of Order

No. 3198331, pursuant to Section 107(a) of the Federal Mine
Safety and Health Act of 1977 (the Act). In addition, Contestant
also filed a motion for expedited proceeding, which was received
by the Commission on August 4, 1995. On August 7, 1995, in a
telephone conference call between the undersigned and counsel

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for Contestant and Respondent, the motion to expedite was granted
and this case was scheduled for hearing on August 22 and 23. On
August 15, 1995, Contestant filed a motion for partial summary
decision, and Respondent filed his response on August 17, 1995.
On August 17, 1995, in a telephone conference call with counsel
for Contestant and Respondent, the motion was denied.1
Subsequently, the United Mine Workers of America (UMWA) moved to
intervene.

 At the hearing, Johnny Jordan, Hulett Keith Chaney, Terry

Lindley, and Kenneth Wayne Ely testified for Respondent. George
Vass, James Reginald Lamons, and Darvel Leon Loggains testified
for Contestant. The parties each filed a brief, via fax, on
August 25, 1995.

             Findings of Fact and Discussion




 1
  The basis for the denial of the motion was set forth in the

conference call, and reiterated on the record at the commencement
of the hearing on August 21.

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Jim Walter Resources, Inc. (Jim Walter) operates two longwall
sections at its No. 4 mine. The longwall face on the section in
issue is approximately 900 feet long. Roof support is provided
by five foot wide shields that advance forward as the face is
cut. Approximately 192 shields are placed side-by-side for the
length of the face. The various parts of the shields are set
forth in Respondent's Exhibit No. 1. In normal operations, each
shield is moved forward, in sequence, by electronic controls that
are located in an adjacent shield. The miner who operates these
controls stands under the canopy of the adjacent shield. To
advance the shield forward, pressure is released from the leg
jacks which causes the canopy to be lowered and the pontoon to be
raised. The entire shield is then advanced forward to the face.
Lastly, the hydraulic leg jacks are pressurized to press the
canopy up against the roof. If the height of the roof exceeds
the stroke 2 of the leg jacks, additional gob is placed under and
in front of the advancing shield so as to raise the bottom of the
shield and ensure that the stroke of the jack legs will place the
canopy against the roof. In this situation, or when the base
jacks, which lift up the pontoon of the shield when the canopy is
depressured allowing for forward movement, are not operating
properly, then the shield can become mired in the gob preventing
forward movement of the shield. Timbers are then placed
vertically between the canopy and the base of the sheild. When
the canopy is lowered to touch the top of the timber and pressure
is applied, the pontoon is raised allowing the shields to be
moved forward.

 On August 1, 1995, Kenneth Wayne Ely, an MSHA Supervisory

Mine Safety and Health Specialist, was requested to visit the
No. 2 longwall at Jim Walter's No. 4 Mine, to observe a
demonstration whereby timbers were used to elevate the pontoon
of a shield in order to advance the shield. In the
demonstration, the timber, placed in a vertical position between
the canopy of the shield and the bottom of the shield, was tied
to the leg jack.

 After Ely returned to his office, between

7:00 p.m. and 11:00 p.m., Glenn Tinney, the subdistrict manager,
related to him that he (Tinney) had conversations with miners
regarding the use of timbers on the longwall to help advance the
shields. In a series of conversations between Tinney and Ely,
between 7:00 p.m. and 11:00 p.m., on August 1, Tinney informed
Ely that miners told him of the following practices and hazards:
2
Essentially, the stroke is the maximum distance that the
canopy can be set above the bottom of the shield. The stroke can
be set at different heights.

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timber butts are used to help advance the shields, timbers are
placed on top of butts, rocks have been known to fall off the
edge of the top of the shields, hydraulic hoses have been damaged
when timbers were used, there have been unplanned movement of the
shields when timbers were used, and that numerous base jacks may
not be operating properly.

 At approximately 11:00 p.m. on August 1, Ely received a

telephone call from a miner complaining of the existence of
practices constituting an imminent danger. Ely indicated that
the complaining miner reported that the longwall jack legs may
have serious problems, and may not be properly pressurized. It
was reported that the leg jacks were in disrepair, and that
numerous base jacks were deficient or missing. It was also
reported that miners using timbers to advance the longwall were
holding timbers with their hands while advancing the shields,
thereby placing themselves in a hazardous area where rocks might
fall on them. It was further reported that the practice of using
timbers to advance the shields created unplanned movement of the
shields. Lastly, it was reported that miners were using a
variety of blocks on top of the handrail or the pan line.

 Ely left the office at approximately 11:30 or 11:45 p.m.,

and met with another inspector at "an eating place" (Tr. 367) on
the way to the mine to discuss the section 103(g) complaint. He
arrived at the mine at about 1:30 a.m. on August 2. Ely
indicated that it normally takes approximately an hour and ten
minutes to drive from the MSHA office to the mine.

 Between 3:00 a.m. and 4:00 a.m., Ely interviewed six miners

on the owl shift of the No. 1 longwall section, and other
inspectors interviewed miners on the owl shift of the No. 2
longwall section. According to Ely, after reports of ten or
twelve interviews were received at 6:55 a.m., an imminent danger
order was issued pursuant to section 107(a) of the Act.3
Sometime between 3:00 and 4:00 a.m., Ely asked the manager of the
longwall to no longer use timbers to advance the longwall until
the MSHA inspectors completed the investigation. He said that
the basis for this request was the information he had received
from a miner on the telephone at 11:00 p.m. on August 1,
requesting a 103(g) inspection. The imminent danger withdrawal
order at issue alleges the following practice:
3
The order at issue, No. 3198331, was signed by Kirby Smith,
an MSHA inspector who was not available at the date of the
hearing. At the hearing, it was stipulated that the issuance of
the order was a joint effort involving Smith and Ely, and that
the issue to be decided was the discretion of Ely in issuing the
order.

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 An unsafe work practice has been identified
 during an investigation for 103(g) investigation
 as a result of a miner complaint. Testimony of
 persons working on #1 and #2 longwalls revealed
 that workers were being permitted to perform work
 while in a hazardous location. Workers were placing
 timbers and crib blocks to support longwall shield
 canopies while advancing longwall shields. Persons
 were holding timbers and/or cribs blocks (sic) in
 their hands while moving longwall canopies to come
 in contact with these timbers and/or cribs. This
 exposed persons to falling rock from the top and
 sides of the shield and to unplanned movement of
 the shields. Different persons were permitted to
 install these timbers and/or cribs blocks (sic) in a
 variety of ways with little or no supervision.

  The order contains the following language under the heading

Area or Equipment: "[t]he practice of using timbers and/or crib
block to assist in the advancement of the long wall shields."

 The order at issue alleges the existence of an "imminent

danger" as per section 107(a) of the Act. Section(3)(j) of the
Act defines an 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."

 In Utah Power and Light Co., 13 FMSHRC 1617 (1991), the

Commission reviewed the Legislative History of this decision,
and concluded as follows: "[t]hus the hazard to be protected
against by the withdrawal order must be impending so as to
require the immediate withdrawal of miners." (13 FMSHRC, supra,
at 1621.) (Emphasis added)

 The Commission rejected an interpretation of the imminent

danger provision of the Act which includes, "... any hazard that
has the potential to cause a serious accident at some future time
... ." (Utah Power and Light, supra at 1622). The Commission
further explained its holding as follows:

      To support a finding of imminent danger, the
 inspector must find that the hazardous condition
 has a reasonable potential to cause death or
 serious injury within a short period of time. An
 inspector, albeit acting in good faith, abuses his
 discretion in the sense of making a decision that

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 is not in accordance with law when he orders the
 immediate withdrawal of mines under section 107(a)
 in the circumstances where there is not an

` imminent threat to miners.

Utah Power and Light, supra at 1622. See also, Island Creek Coal
Company, 15 FMSHRC 339 (March 1993); Wyoming Fuel Co.,
14 FMSHRC 1282 (August 1992).

 For the reasons that follow, I find that the evidence fails

to establish that there was an imminent threat to miners.

 Jim Walters does not have any work rules, safety rules,

guidelines, or instructions to govern the use of timbers to
advance a longwall shield. Respondent presented the testimony of
three miner witnesses who work on the longwall and proffered the
testimony of six additional witnesses whose testimony would be
cumulative to the testimony of the miner witnesses regarding the
use of timbers to advance the longwall shields. Respondent's
witnesses, Johnny Jordan, who has been a longwall helper and
shearer operator on the No. 2 longwall since 1983, Hulett Keith
Chaney, who has been a scoop operator and inside laborer on the
No. 2 longwall since 1993, and Terry Lindley, who, as an
electrician and repairman, has worked on the No. 2 longwall since
1978, testified based on their observations and actions. Their
essentially uncontradicted testimony establishes the existence of
the following work practices regarding the use of timbers4 to
advance the longwall shields: timbers were placed vertically
between the bottom of the canopy and at various locations on the
bottom such as the relay bar, pan line, and handrail of the cable
trough; timbers were stacked atop cribs; timber butts were
stacked atop timbers; timbers were used that had been cut
unevenly, miners had to steady timbers with one hand while
operating with the other hand the rotary valve located on the
shield in order to advance the shield, miners jammed the rotary
valve controls with pliers, rocks, or other items in order to
keep the valve set firm in a certain setting, miners rode the
shield that was being advanced in situations when the shield was
being moved by the rotary valve, and that in placing the timbers,
miners were located in close proximity to pinch points and to the
pan line, which was in operation most of the time. Jordan,
Chaney, and Lindley testified in essence testified that they
considered the above practices to be unsafe. They testified that
4
Timbers are oak or pine, six inches by six inches and are
sawed to the appropriate length to be placed between the
underside of the canopy and the bottom of the shield. Timbers
are used for roof support at other locations in the mine.

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the timbers were reused in advancing the longwall, and some of
them had "mushroomed" on the top and were split or cracked.
Chaney testified that on one occasion, when he was setting a
timber under the canopy, it kicked out from the top and bumped
him in the shoulder, but he did not miss any work. Lindley
testified that on one occasion he was hit on the leg by a timber.
In addition to the hazards of timbers kicking out and injuring
miners, the miners testified to various other hazards involved in
the above practices, such as miners being subject to the hazard
of rocks falling off the canopies from the tip of the canopies or
between the shields, especially when the shields are lowered
distances more than a few inches to accommodate the length of the
timber. Also, hazards exist when a single miner must balance
himself by having one hand hold on to the timber and another to
operate the valve lowering the canopy. As such, the miner may
not observe rocks being thrown from the adjacent pan line, or he
might get injured by being exposed to various pinch points upon
movement of the shield. Also, should the shield move forward in
an "unplanned" fashion as a consequence of the practice of the
jamming of the rotary valves, a miner also might be injured.

 Ely indicated that he issued the imminent danger order

because information provided to him from the miners he
interviewed on the owl shift established the following practices,
which had been told to him over the telephone by a miner at
11:00 p.m. the previous evening: (1) miners were using timbers
to advance the longwall and were holding the timbers with their
hands and thus were placing themselves in a situation where they
were exposed to falling rock; (2) the unplanned movement of the
shields which resulted from this practice; and (3) the use of
blocks and timbers in various position, such as on top of the
rail or on the pan line. He stated that it "was just a matter of
luck" (Tr. 278) that no serious injury resulted from the various
practices testified to. He stated that, in his opinion, if the
practice had not been stopped immediately that there was a very
good likelihood of someone going to get a serious injury, get
killed (sic)(Tr. 278) . He was asked what was imminent about the
work practices that were described to him. His testimony is as
follows:

 A.   Again, because of the variety of methods and
      ways that timber was being used, workers were
      placing themselves in an area that I thought
      was a high potential for an accident to
      occur.

 Q.    When?

 A.   Immediately.

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 Q.   Why is that?

 A.   Because when we interviewed the miners that
      night, they described all these variety of
      conditons to us, and if they had continued on
      with those type practices, I believe that
      there would have been a serious injury going
      to occur (Tr. 279).


 I find that the evidence is insufficient to establish that

there was any condition or practice which, if not abated, had a
reasonable potential to cause death or serious injury " ...
within a short period of time" (Emphasis added.) (Utah Power and
Light, supra, at 1622). Neither Ely nor any other inspector
observed any condition that constituted an imminent danger. As
testified to by Respondent's witnesses, various hazards were
attendant upon the various practices of using timbers to advance
the shields. However, Ely did not articulate with specificity
the factual basis for his conclusion that the hazardous practices
created an imminent threat to the safety of miners. It might be
inferred that due to the variety of practices involved herein,
and the frequency of their use, that there may have been a
reasonable likelihood that the various hazards created would
result in an injury or illness of a reasonably serious nature.
However, a distinction must be made between conditions or
practices that establish a significant and substantial violation
and those that create a imminent danger (Utah Power and Light,
supra, at 1622). Only the latter may properly be the subject of
a Section 107(a) withdrawal order.

 Chaney testified to having been bumped in the shoulder by a

timber that kicked out, and Lindley testified to having been hit
on a leg on one occasion by a timber, However, it is significant
to note that according to the uncontradicted testimony of James
Reginald Lamons, the longwall manager at the No. 4 mine, and
Darrel Leon Loggains the longwall manager at the No. 3 mine,
timbers have been used in advancing the longwall since its
inception in 1979. There is no evidence of any serious injuries
resulting from these practices. Respondent offered in evidence
documentation of 14 injuries that had occurred on longwall faces,
11 of which resulted from rocks falling off of top of canopies or
between shields (Respondent's Exhibit No. 6). However, there is
no indication that any of these injuries occurred as the
consequence of the use of timbers in advancing the face.

 Hence, for all of the above reasons, I conclude that it has

not been established that Contestant's practices had a reasonable

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potential to cause death or serious injury within a short period
of time. I thus find that the inspectors abused their discretion
in issuing the withdrawal order at bar. 5 Hence, the withdrawal
order is to be dismissed.

                           ORDER
  IT IS ORDERED that Order No. 38198331 be DISMISSED.




                           Avram Weisberger
                           Administrative Law Judge

Distribution:

R. Stanley Morrow, Esq., Jim Walter Resources, Inc.,
P.O. Box 133, Brookwood, AL 35444 (Certified Mail)

David M. Smith, Esq., J. Alan Truitt, Esq., Maynard, Cooper &
Gale, P.C., 1901 Sixth Avenue North, 2400 AmSouth-Harbert Plaza,
Birmingham, AL 35203-2602 (Certified Mail)

William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Chambers Building, Highpoint Office Center, Suite 150,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)

Patrick K. Nakamura, Esq., Nakamura & Quinn, Suite 300,
Landmark Center, 2100 First Avenue North, Birmingham, AL 35203
(Certified Mail)

/ml

  5
  In his brief, Respondent relies on U.S. Steel Corp.,

3 FMSHRC (13) (January 1981) (Judge Broderick) and U.S. Steel
Group, Minesota Ore Operations, 15 FMSHRC 1720 (August 1993)
(August 1993) (Judge Barbour). To the extent that these cases
are not consistent with my decision in the instant case, I choose
not to follow them.

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