Wyoming Fuel Company

Plain-English summary

Wyoming Fuel Company operated the Golden Eagle Mine, an underground coal mine in Colorado. During an inspection, MSHA measured methane above 1.5 percent in a return entry and issued an imminent-danger withdrawal order under section 107(a) of the Mine Act. The Commission agreed with the ALJ that the conditions did not constitute an imminent danger because the methane had not reached an explosive level, mining had stopped, miners had been withdrawn, and power was being deenergized. It held that the separate statutory withdrawal requirement for 1.5 percent methane did not itself authorize a section 107(a) imminent-danger order. The Commission reversed the ALJ's decision and vacated the order.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.309(b); 30 U.S.C. § 863(i)(2)
• Outcome: The Commission reversed the ALJ's decision and vacated the section 107(a) withdrawal order.
• Key point: A methane concentration above 1.5 percent in return air requires the operator to withdraw miners and cut power, but does not by itself establish the separate imminent-danger finding required for a section 107(a) order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
August 29, 1991

WYOMING FUEL COMPANY

 v.              Docket No. WEST 90-238-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

                DECISION

BY THE COMMISSION:

In this contest proceeding arising under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq. (1988) ("Mine Act" or
"Act"), Wyoming Fuel Company ("WFC") seeks review of a decision by
Commission Administrative Law Judge John J. Morris, affirming an
imminent danger order of withdrawal issued pursuant to section 107(a)
of the Mine Act. 1/ The judge held that the section 107(a) order
was validly issued when methane concentrations in excess of 1.5%
were detected in a return entry of WFC's

1/ Section 107(a) of the Mine 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).

Golden Eagle Mine. 12 FMSHRC 1664 (August 1990) (AlJ). The Commission
granted WFC's petition for discretionary review. For the reasons that
follow, we reverse the judge's decision.

                   I.

 The essential facts are undisputed. On June 12, 1990, several

inspectors of the Department of Labor's Mine Safety and Health
Administration ("MSHA") including Inspector Don Jordan, were conducting
an inspection of WFC's Golden Eagle Mine, located in Weston, Colorado.
This underground mine uses a combination of continuous miner and
retreating longwall mining methods.

 At about 7:50 a.m., Inspector Jordan, General Mine Foreman Steve

Salazar, and miner representative Ralph Sandoval approached the northwest
No. 1 tailgate section of a longwall unit. As they entered the section,
they were informed by the section mechanic, Ben Chavez, who was on his
way to deenergize the longwall unit, that methane gas in excess of 1.5%
had been detected by foreman Rich Kretaski while Kretaski was examining
the return entry. Kretaski had then ordered the immediate withdrawal
of all personnel from the area and had posted the entry point of the
unit to prevent the return of any of the withdrawn employees.

 Jordan and Salazar went to the No. 1 return entry and, using

hand held methane detectors, measured the methane gas level at 1.7%.
In the No. 4 return, gas concentrations measured from 0.9 to l%, and at
the face, from 0.3 to 0.8%. After leaving the face area, the two men
travelled approximately 1,400 feet down the return entry, where further
methane measurements ranged from 1.4 to 1.7%. Tr. 89.

At 8:10 a.m., Inspector Jordan issued the contested section 107(a)

order, which stated:

  Methane (CH4) in excess of 1.5% was detected with a
  permissible hand held methane detector. Was present
  in return entry of the NW #1 tail gate section....
  Management had taken steps to correct the condition
  prior to the issuance of this order. The order was
  issued to safeguard the health and safety of personnel
  and to insure proper corrective action.

At 2:30 p.m. the same day, Jordan modified the order to permit mining when
the methane concentrations dropped below 1%. The order was terminated on
June 21, 1990.

At the hearing, Inspector Jordan indicated three factors supporting

his decision to issue the imminent danger order. He stated that the mine
was a very gassy mine and that methane concentrations can escalate rapidly.
He also stated his belief that 30 C.F.R. 75.309(b) requires an inspector

to issue such order when methane reaches 1.5% in a return entry. 2/
Tr. 25-27. He further testified that a 1.5% concentration of methane in
a return entry is not in itself an imminent danger. Tr. 37. He stated
that he issued the withdraw order because 30 C.F.R. 75.309(b) requires
him to withdraw miners whenever the methane level exceeds 1.5%.

 In his decision, the judge first considered whether existing

conditions constituted an imminent danger when the order was issued.
He concluded: "On the facts presented here, it would appear that no
condition of imminent danger existed within the ordinary meaning of
section 107(a). 12 FMSHRC at 1670. His determination was based on
the considerations that the methene concentrations had not reached
an explosive range and that the inspector and mine superintendent
would not have walked some 1,400 feet up the entry if they had
believed an imminent danger existed.

 Nevertheless, the judge pointed to the requirement of section

303(i)(2) of the Mine Act that all persons "shall be withdrawn" from a
return entry of a mine endangered by a concentration of methane of 1.5%
or more. He opined that whether "the described methane concentrations
are held to be a per se imminent danger' ... or a Congressionally
mandated imminent danger is not critical to a resolution of the issues."
12 FMSHRC at 1670. He rejected WFC's argument that "the presence of 1.7%
methane does not trigger a section 107(a) order because there can be no
per se imminent danger under the Act, stating:

  WFC's argument should be addressed to the Congress,
  not to the Commission. The statute, as stated above,
  clearly defines a 1.5 percent concentration methane
  to be an area of the mine that is endangered. It
  requires withdrawal of all miners from such an area.

12 FMSHRC at 1671.

2/ 30 C.F.R. 75.309(b), a mandatory safety standard, repeats verbatim
section 303(i)(2) of the Mine Act, which provides:

             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(i)(2).

 The judge also stated that the proper forum in which to seek an

alternative method of enforcing section 75.309(b) without resort to a
section 107(a) order is in a rulemaking proceeding. 12 FMSHRC at 1672.
Finally, the judge rejected WFC's argument that proposed changes in the
Secretary's ventilation regulations, which would not require the withdrawal
of miners until the methane concentration reaches 2.O%, invalidated the
Secretary's position. The judge stated that the case had to be decided on
existing regulations and not on proposed changes, which might never be
adopted. Id.

                  II.

On review, WFC contends that the 1.5% concentration of methane in

the return entry did not constitute an imminent danger and that, lacking
a finding of imminent danger by the judge, the imminent danger order was
invalidly issued. The Secretary argues that the presence of methane in
concentrations exceeding 1.5% in a return entry constitutes an imminent
danger, justifying the use of a section 107(a) order to require the
withdrawal of all miners.

 We conclude that substantial evidence amply supports the judge's

finding that "no condition of imminent danger existed within the ordinary
meaning of section 107(a)." 12 FMSHRC at 1670. The Secretary did not
contest this finding on review. The record clearly demonstrates that
at the time the section 107(a) order was issued, the concentration of
methane had not reached an explosive level, a mining activity had been
suspended, the miners had been withdrawn, and electric power to the unit
was being deenergized. Accordingly, we affirm the finding of the judge
that no imminent danger existed at the time the order of withdrawal was
issued.

The Mine Act does not empower the Secretary to issue a section

107(a) order except upon the finding of an imminent danger. We reject
the Secretary's implicit argument that section 303(i)(2) of the Mine Act
authorizes the use of a section 107(a) order regardless of whether an
imminent danger is found. The testimony of Inspector Jordan suggests
that he was trained to issue a section 107(a) order to implement the
withdrawal of miners required under 30 C.F.R. 75.309. He testified
that "when I encounter 1.5% methane regardless of the situation, if I
am in fact present. ... I am obligated to issue an imminent danger"
order. Tr. 36.37. Thus, he issued the order, not because he found
that the specific conditions in the mine created an imminent danger,
but because he felt obligated to issue such an order whenever the level
of methane exceeds 1.5% in return air.

3/ The highest concentrations of methane measured by Inspector Jordan
were 1.8% in the No. 1 return entry, 1.2% in the No. 4 return entry and
0.8% at the face. Tr. 22.25; 88-89. The inspector further testified
that methane is explosive only when the concentration is between 5 and
15% and is most explosive at 9%. Tr. 45.46. The inspector did not
detect an explosive mixture of methane at any location in the mine.

The language of section 303(i)(2) of the Mine Act directs mine
operators to withdraw miners and to cut off electric power when a
concentration of methane in excess of 1.5% is detected in a return entry
of an underground coal mine. The relevant legislative history explains
the reason for the required withdrawal of miners from the endangered areas:

            This section requires that men be withdrawn
  by the operator or inspector, if he is present, and
  power shut off from a portion of a mine endangered
  by a split of air returning from active underground
  workings containing 1.5 percent of methane.

            The presence of 1.5 percent of methane in the
  air current returning from active underground working
  places indicates that considerably larger amounts of
  methane may be accumulating in the air as places in
  the mine through which the current of air in such
  split has passed. Safety requires that employees
  be withdrawn from the portion of the mine which is
  endangered by the possibility of an explosion of any
  such accumulation of methane, and that all electric
  power be cut off from such portion of the mine, until
  the cause of the high percentage of methane in such
  returning air is ascertained and the quantity of
  methane in such returning air is reduced to no more
  than 1.0 percent.

S. Rep. No. 411, 91st Cong., 1st Sess. 59 (1969), reprinted in Senate
Subcommittee on Labor of the Committee on Labor and Public Welfare,
94th Cong., 1st Sess., Part I Legislative History of the Federal Coal
Mine Health and Safety Act of 1969, at 185 (1975) (Legis. Hist.)

 As the legislative history explains, Congress was concerned

that a 1.5% concentration of methane in a return entry indicates that
"considerably larger amounts of methane in a return entry may be
accumulating" in other areas, creating "the possibility of an explosion."
Id. (emphasis added). Nowhere in the language of the statute or in
its legislative history do we find support for a conclusion that a
concentration of 1.5% of methane constitutes, by its very nature, an
imminent danger as that term is used in the statute. 4/

4/ The Interior Board of Mine Operations Appeals, in Pittsburgh Coal
Company, 2 IBMA 277 (1973) concluded that, under section 303(h)(2) of the
Coal Act of 1969, the presence of 1.5% of methane in a working place per se
warrants a finding of 'imminent danger'." Id at 278. The Board's "finding

was based on the reasoning of the administrative law judge that since
Congress required the "drastic action of withdrawal, then it must be because
the situation was viewed as one of imminent danger." Id. at 282. We do not
agree. Neither in Pittsburgh, nor in the case now before us, was evidence
presented by the Secretary to support a finding that a concentration of 1.5%
of methane in and of itself constitutes an imminent danger.

We reject the Secretary's argument that the withdrawal of miners

under section 303(i)(2) of the Mine Act (section 75.309(b)) warrants a
finding of imminent danger and the issuance of a section 107(a) order of
withdrawal. This argument superimposes, improperly we believe, the
Secretary's authority to issue a section 107(a) order of withdrawal onto
the provisions of section 303(i)(2). Section 303(1)(2) is a mandatory
safety standard; it is violated only when an operator fails to withdraw
miners and shut of power when methane concentrations reach 1.5% in return
air. The presence of such concentration is not by itself a violation of
the standard.

 Further, nowhere in the language of section 303(i)(2) or its

legislative history are the terms "imminent danger", or "imminent danger
order of withdrawal" to be found. The statute simply states that "all
persons ... shall be withdrawn," and the legislative history makes clear
that the miners must be withdrawn "by the operator or inspector, if he is
present." The Secretary's mandatory standard at 30 C.F.R. 75.309(b)
reiterates the statutory provision, requiring that all persons "shall be
withdrawn." The responsibility for complying with the mandatory standard
rests with the operator. Unlike section 107(a), section 303(i)(2) and
75.309(b) are directed to the operator rather than to the Secretary. A
violation of the mandatory standard occurs if and when an operator fails
to withdraw the miners and cut off electric power as required by the
standard. The operator should be cited under section 104, 30 U.S.C. 814,
for such a failure. Then failure to abate the violation in a timely manner
would result in the issuance of an order of withdrawal under section 104
and the withdrawal of miners would thus be effected. 5/

Congress has provided the Secretary with considerable authority

to order the withdrawal of miners to ensure their safety for other than
imminent danger conditions. Such withdrawal may be required by an
inspector pursuant to section 104(b) of the Act, 30 U.S.C. 814(b), when
the operator has failed to abate a violation of a mandatory standard in a
timely manner or pursuant to section 104(d), 30 U.S.C. 814(d), based on
a finding of "unwarrantable failure" on the part of an operator. Section
103(k), 30 U.S.C. 813(k), authorizes an inspector to issue orders requiring
the withdrawal of miners as he deems appropriate in the event of "any
accident" and section 107(b)(2), 30 U.S.C. 817(b)(2), permits an inspector
to order the withdrawal of miners under certain conditions short of imminent
danger, after specified procedures are followed.

Substantial evidence supports the judge's finding that the conditions

present at the mine did not constitute an imminent danger. The language of
the Mine Act and the legislative history establish that section 303(i)(2) is
addressed to mine operators and requires that they remove miners and cut off

electric power when the level of methane in the return split of air reaches

5/ Of course, if an inspector does find that conditions at the mine create
an imminent danger, as defined in section 3(j), 30 U.S.C. 802(j), he is
required to issue a section 107(a) order.

1.5%, because an explosive level of methane "may be accumulating at
places in the mine through which the current of air in such split has
passed." Legis. Hist. at 185. In this case, Inspector Jordan inspected
the area through which the current of air passed and found that, in fact,
explosive levels of methane were not accumulating at the mine. Neither
section 303(i)(2) nor section 107(a) provides that such a condition
constitutes an imminent danger. The Secretary is not authorized to issue
an imminent danger withdrawal order unless her authorized representative,
in this case the inspector, finds that an imminent danger is present.

For the foregoing reasons, we reverse the judge's decision and vacate

the contested section 107(a) order.

Distribution:

Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, DC 20004-2505