Spartan Mining Company v. Secretary of Labor

Plain-English summary

An MSHA inspector saw a continuous-miner operator standing beside an energized machine while it trammed forward and backward in the prohibited red zone. The inspector immediately flashed his cap lamp to remove the miner, then notified nearby foremen within a minute that he had issued an imminent-danger order. Spartan Mining conceded that the condition could reasonably have caused death or serious harm but argued that a single act was neither a condition nor a practice and that the danger had ended before formal notice. Judge David F. Barbour held that the energized machine and miner's position formed an existing hazardous condition and treated the immediate withdrawal and prompt notice as one continuous order. He granted summary decision to the Secretary and affirmed the section 107(a) order.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(j) and 817(a)
• Outcome: The Secretary received summary decision, and the imminent-danger withdrawal order was affirmed.
• Key point: An inspector may remove a miner from immediate danger before formally stating the statutory basis; the withdrawal and prompt management notice can constitute one continuous imminent-danger order.

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

SPARTAN
MINING COMPANY,

Petitioner

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA) ,

Respondent

CONTEST
PROCEEDING

Docket
No. WEVA 2015-407-R

Order
No.: 9020932; 12/30/14

Mine:
Road Fork #51 Mine

Mine
ID No.: 46-01544

SUMMARY DECISION

Before:                        Judge
Barbour

This
case is before me upon a Notice of Contest filed by Spartan Mining Company
(“Spartan”), challenging the issuance by the Secretary of Labor (“Secretary”) of
an imminent danger order, under section 107(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §
817(a). The Order was issued on December 30, 2014, at Spartan’s Road
Fork No. 51 Mine, an underground bituminous coal mine located in Wyoming County,
West Virginia, when an inspector for the Secretary’s Mine Safety and Health
Administration (“MSHA”) saw a miner standing alongside a moving continuous
mining machine and instructed the miner to immediately remove himself from the
area. In conjunction with the Order and pursuant to section 104(a) of the Act, the
inspector also issued Citation No. 9020933 to Spartan.[1]

The
court initially scheduled a June 9, 2015, hearing on this matter. Shortly after
the notice of hearing was issued, the parties settled all issues related to
Citation No. 9020933 and requested that the court resolve the remaining issues
regarding the imminent danger order on summary decision.[2] The parties
agreed to submit stipulations of fact and cross-motions for summary decision,
and the court issued an Order cancelling the June 9 hearing. The parties
subsequently filed Cross-Motions for Summary Decision with accompanying Briefs
(“Sec’y Br.” and “Resp’t Br.”) and Joint Stipulations of Fact (“Stip. 1 through
13”), followed by Reply Briefs from each side (“Sec’y Reply Br.” and “Resp’t
Reply Br.”). The court issued an Order Requesting Additional Joint Stipulations
on August 5, 2015, and the parties complied by submitting three additional
Joint Stipulations on September 1, 2015 (“Stip. 14 through 16”).

Commission
Rule 67(b) states: “A motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows: (1) That there is no genuine issue as to any material
fact; and (2) That the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b). Based
on the stipulations, I find that there is no genuine issue as to any material
fact, and that the Secretary is entitled to summary decision as
a matter of law. Accordingly, I AFFIRM the Order as issued.

STIPULATIONS

The
court accepts the following stipulated facts to be undisputed.

1.                         
At
all times relevant to this proceeding, Spartan was the “operator” of the Road
Fork #51 mine, Mine ID Number 46-01544, as defined by section 3(d) of the Mine
Act.

2.                         
At
all times relevant to this proceeding, the Road Fork #51 mine was a “coal or
other mine” as defined by section 3(h)(1) of the Mine Act.

3.                         
At
all times relevant to the proceeding, the Road Fork #51 mine had an effect on
commerce within the meaning of section 4 of the Mine Act.

4.                         
Operations
of the Road Fork #51 mine are subject to the provisions of the Mine Act.

5.                         
This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated administrative law judges pursuant to
sections 105 and 113 of the Mine Act. Civil penalties are not imposed for
imminent danger orders issued pursuant to section 107(a) of the Mine Act.

6.                         
By
entering into these Joint Stipulations, neither party waives its right to
appeal the Administrative Law Judge’s decision on the Cross Motions for Summary
Decision.

7.                         
Order
No. 9020932 was issued by an authorized representative of the Secretary and was
properly served to Spartan on December 30, 2014.

8.                         
On
December 30, 2014, during his inspection of the Road Fork #51 Mine, MSHA
Inspector Nicholas Christian observed a continuous mining machine being trammed
forward and in reverse in the #1 entry while the continuous miner operator was
positioned alongside the continuous mining machine, which is commonly referred
to as the “red zone.”[3]

9.                         
Immediately
after the continuous miner operator was observed in the “red zone,” Inspector
Christian removed him from the danger and orally issued imminent danger Order
No. 9020932 under section 107(a) of the Mine Act.

10.                     
Paragraph
22 of the MSHA approved roof control plan in place at the Road Fork #51 mine on
December 30, 2014, states as follows: “When the continuous miner is being
trammed in the working place or anywhere in the mine other than when cutting
coal, no person shall be allowed along either side of the continuous mining
machine.”

11.                     
The
continuous miner operator’s actions that were cited in Order 9020932 were in
violation of the above referenced provision of the approved roof control plan. Inspector
Christian also issued Citation No. 9020933 pursuant to section 104(a) of the
Mine Act for a violation of 30 C.F.R. 75.220(a)(1).

12.                     
Inspector
Christian’s decision to issue Order No. 9020932 was based on the single
incident described in section 8 of the body of the Order and not on previous
occurrences of a factually similar event.[4]

13.                     
Spartan
disputes that the actions of the continuous miner operator described in
Stipulation No. 8 constitute a “condition” or “practice” as those terms are
used in sections 3(j) and 107(a) of the Mine Act but, for the purposes of this
proceeding, does not dispute that the remaining requirements of sections 3(j)
and 107(a) of the Mine Act have been satisfied.

14.                     
The
continuous mining operator was the only miner working in and prohibited from
being in the area around the continuous mining machine while the machine was
energized.

15.                     
After
observing the miner tramming the continuous mining machine while standing
alongside it in the “red zone,” the inspector immediately, within a matter of
seconds, removed the miner from danger at that time by flashing his cap lamp at
him (the inspector was approximately 60 feet from the miner when this
occurred). After the inspector did so, the miner immediately shut off the
continuous mining machine and walked over to the inspector. The inspector then
called out for the mine foreman and section foreman, who were nearby. The
foremen responded within a minute and were verbally informed by the inspector
of the issuance of the imminent danger order.

16.                     
The
facts in Joint Stipulation No. 8 could have reasonably been expected to cause
death or serious physical harm had the inspector not removed the miner from the
danger.

ANALYSIS

As
the stipulations make clear, on December 30, 2014, Inspector Nicholas Christian
issued section 107(a) withdrawal Order No. 9020932 directing a continuous
mining operator to exit the “red zone” alongside a continuous mining machine. Stip.
7-9. Christian had reason to believe that the miner could have been killed or
seriously harmed had he not acted. Stip. 16. Section 107(a) of the Mine Act
provides, in pertinent part:

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 . . . 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). Consistent with this statutory directive, Christian identified the existence
of a danger in the area around the continuous mining machine while it was
energized, immediately withdrew the miner from the danger by flashing his cap
lamp at him, and within a minute orally informed the foremen in the area of the
issuance of an imminent danger order. Stip. 15.  

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). In this instance, the danger was abated by withdrawing
the miner from the “red zone.” Spartan concedes that the facts giving rise to
the Order could have reasonably been expected to cause death or serious
physical harm had the inspector not withdrawn the miner. Stip. 16. The only
disputed issue presented to the court is whether or not what the inspector
observed when he issued the Order falls under the meaning of “condition or
practice” as found in section 3(j) of the Act. Resp’t Br. 1-2.

As
a preliminary matter, Spartan and the Secretary disagree on the appropriate
level of deference that should be afforded to the Secretary’s interpretation of
the terms “condition” and “practice.” The Secretary argues that his
interpretation is entitled to Chevron deference, whereby the court resolves
any ambiguity in the statute by deferring to the Secretary’s interpretation so
long as it is reasonable. Sec’y. Br. 9-11 (citing Chevron U.S.A. Inc. v Natural
Res. Def. Counsel, Inc., 467 U.S. 837, 842-44 (1984)). Spartan argues that
the Secretary’s litigating position in this individual case is entitled only to
Skidmore deference, which depends solely on the persuasiveness of the
Secretary’s interpretation. Resp’t Reply Br. 1-7 (citing Skidmore v Swift
& Co., 323 U.S. 134, 139 (1994); United States v Mead Corp., 533
U.S. 218, 234-37 (2001)). The court finds it unnecessary to resolve this
dispute. Assuming, arguendo, that the Secretary’s interpretation is
entitled to Skidmore deference only, the court is nonetheless persuaded
by the Secretary’s argument that the facts in this matter constituted a
“condition or practice” under section 3(j).

Under
section 107(a), MSHA inspectors are charged with a duty of withdrawing and
prohibiting miners from entering an area in which an imminent danger exists
until that danger and the “conditions or practices” that gave rise to it no
longer exist. Section 3(j) clarifies the definition of “imminent danger” by
further reference to a “condition or practice,” but neither 107(a) nor 3(j)
defines the phrase “condition or practice.” In the absence of any statutory or
regulatory guidance, the Secretary has chosen to define a “practice” as an “act
or process of doing something” and a “condition” as a “mode or state of being,”
with both definitions encompassing the facts in this case. Sec’y Br. 11-12, 15.
The company argues that what Christian observed does not constitute a practice
because the Secretary has not alleged any “customary or routine act that formed
the basis for the Order.” Resp’t Br. 7. It further argues that what Christian
observed does not constitute a condition, since “the conduct described in the
Order had already occurred when the Order was orally issued.” Resp’t Br. 10.

The
court first looks to apply the ordinary meaning of the disputed terms, given
that they are not specifically defined by the Act or regulations promulgated
under it. See Peabody Coal Co., 18 FMSHRC 686 , 690 (May 1996). The
dictionary defines “practice” as both “[a] habitual or customary action or way
of doing something” and “[t]he act or process of doing something; performance
or action,” while “condition” is defined as a “mode or state of being.” The
American Heritage Dictionary 383, 1378 (4th ed. 2009). Although
it might be reasonable to think that allegations of a “practice” would require
some evidence of repeat or customary conduct, the facts that Christian observed
fall squarely under any relevant definition of a “condition” that this court can
identify.[5]
The danger caused by the continued operation of the energized continuous miner
in conjunction with the machine operator’s presence in the “red zone” was an existing
“state of being” that ceased only after the withdrawal of the miner.

Spartan’s
contention that “the conduct described in the Order had already occurred when
the Order was orally issued” suggests that the company does not believe that an
imminent danger order had been issued until the inspector formally notified the
foremen in the area, at which point the condition had already been abated.
Resp’t Br. 10. Accordingly, the company cites to Rag Cumberland Res. LP,
22 FMSHRC 994 (Aug. 2000) (ALJ), a case involving a mantrip accident, where a
Commission Administrative Law Judge (“ALJ”) vacated an imminent danger order that
was issued well after a miner had already exited the mantrip and reached the
surface, and where there was no continued threat to miners. Notably, the decision
is silent as to whether the MSHA inspector who issued the imminent danger order
took any steps to remove affected miners from the area of danger before the
condition had abated or while the collision was impending. Id. at
997-98. It is not even clear that the inspector would have had any opportunity
to do so at that point. Id. The instant matter would be analogous to Rag
Cumberland if Christian had not acted to remove the miner from the impending
danger and had not issued a withdrawal order until well after the continuous
miner operator had already exited the “red zone.”

It
seems to the court that the parties are not so much arguing over the definition
of the phrase “condition or practice” as they are over the timing and actions
required to establish the Order itself. The court refuses to take the
formalistic approach implicitly endorsed by Spartan, which would require inspectors
to utter the words “imminent danger order” before withdrawing miners. The Mine
Act’s legislative history reflects Congress’s view that “the authority under
[section 107(a)] is essential to the protection of miners and should be
construed expansively by inspectors and the Commission.” S. Rep. No. 461, 95th
Cong., 1st Sess. 39 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 at 1317 (1978) (“Legis.
Hist.”). Given this history, the court is unwilling to elevate form over
substance.

While
it is conceivable that a significant enough delay in the formal notification to
an operator of an imminent danger order could pose notice or evidentiary problems
that would justify vacating an order, this case does not involve such facts.
The immediacy of the danger in the instant matter required an immediate
response on the part of the inspector without pausing to explain the statutory
authority for ordering withdrawal, and the inspector followed up his withdrawal
order with sufficiently prompt formal notification. Therefore, the court views
the inspector’s ordering of the continuous miner operator out of the red zone and
the oral notification to management officials immediately thereafter as one
continuous action constituting the imminent danger order itself and finds that
the Order was a valid and appropriate response to a condition which, as
stipulated to by the parties, could reasonably have been expected to cause
death or serious physical harm before it could be abated. The
court concludes therefore that the issuance of the 107(a) withdrawal order
was proper.

ORDER

In accordance with the foregoing, the Secretary’s motion for summary decision is
GRANTED, Spartan’s motion for summary decision is DENIED,
and the withdrawal order issued by the Secretary under section 107(a) of
the Act is AFFIRMED.

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:

Jacob
M. Hargraves, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th
Street S., Suite 500, Arlington Virginia 22202

K.
Brad Oakley, Jackson Kelly, PLLC, 175 East Main Street, Lexington, KY 40507

/rd

[1] Citation No.
9020933 charged the company with a violation of 30 C.F.R. § 75.220(a)(1), which requires an
operator to adopt and comply with an approved roof control plan. A provision in
Spartan’s approved plan prohibited miners from standing alongside a continuous
miner when the continuous miner was being trammed, unless it was cutting coal. See
Stip. 10.

[2] The court
approved the settlement on June 24, 2015. Spartan Mining Co., Docket No.
WEVA 2015-592, Unpublished Order at 2 (June 24, 2015).

[3] The Secretary implies
that the machine was being operated remotely by the miner who was standing
alongside it. See Sec’y Br. 18.

[4] Section 8 of
the Order states the following:

The operator
failed to follow the approved roof control plan on the 005-0 MMU. When observed
the miner operator was standing in the red zone along the side of the continuous
miner in the #1 entry. . . . The miner was being trammed back and forward in
the heading while the miner operator was positioned along side of the miner in
the red zone. Upon, the miner operator being removed from the danger[, a]n oral
imminent danger was issued to the Mine Foreman, at 0900 hours on this date.
After, the miner was de[-e]nergized and measurements were taken the miner was
30'' from the rib at the outby end of the pan of the miner and 31'' at the
gauges on the outby end of the miner where the operator was standing. The
mining height in this location is approximately 50'' therefore restricting the
miner[’]s ability to stand up right and pos[ing] more of a danger to himself
while having to bend over that could result in the controls being engaged and
also while the miner is being trammed while the operator is along side of the
machine the miner could swing over inadvertently resulting in fatal injuries
from crushing hazards against the rib.

Citation #9020933
will be issued in conjunction with this order.

Resp’t Ex. 1.

[5] At one point,
Spartan defines “condition” as “involv[ing] some type of inanimate object in a ‘state
of being’”. Resp’t Br. 9. While the company provides no authority for this
definition, and the court is unable to find any definition that focuses
specifically on an inanimate object, the facts in this matter would still fall
under Spartan’s proposed definition. The continuous mining machine in the entry
was an inanimate object that was central to the danger posed to the withdrawn
miner. The fact that the withdrawn miner’s hazardous conduct also contributed
to the danger is immaterial, as the Commission has upheld imminent danger orders
caused by a miner’s hazardous conduct. See Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159 (Nov. 1989).