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Imminent Danger Rulings Reveal Divergent Opinions Among Commissioners

  • December 1, 2015

A ruling that went against an Alabama underground coal operator has revealed sharp differences among members of the Federal Mine Safety and Health Review Commission over the interpretation of a safety standard dealing with imminent danger.

The commissioners’ 3-2 decision (Sec’y of Labor v. Jim Walter Resources, Inc., No. SE 2012-681-R, Sept. 30, 2015) came in a case where a Mine Safety and Health Administration inspector ordered miners out of an area of Jim Walter Resources, Inc.’s No. 7 Mine in August 2012, after he detected methane levels in a roof cavity inside a crosscut that exceeded 5%. The gas is explosive at between 5%-15%. A crosscut is a passageway driven at right angles to the main tunnel into a mine to connect it with a parallel tunnel or air course.

The inspector issued the order under Section 107(a) of the Mine Act, which requires withdrawal of miners when there is an imminent danger. The statute defines imminent danger as a condition or practice “which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.”

A mobile vehicle called a Lo Trac was in the general vicinity of the roof cavity. Its presence was pivotal to the inspector’s decision because the vehicle was not explosion-proof, and thus presented a potential source of ignition for the gas. The operator appealed the order, but a judge sided with MSHA after accepting the inspector’s conclusion that the Lo Trac could arc, release a spark and produce an explosion and, as a result, presented an imminent danger to miners.

On appeal, three members of the Commission upheld the judge’s decision, but for different reasons. Commissioner Patrick Nakamura determined that substantial evidence supported the judge’s conclusion that the Lo Trac could re-enter the crosscut and present an ignition source, and upheld the imminent danger order. However, in a concurring opinion, Chairwoman Mary Lu Jordan and Commissioner Robert Cohen, Jr., while agreeing with Nakamura to uphold the imminent danger order, stated they did not believe it was necessary to base that decision on substantial evidence of an ignition source.

“Rather,” they said, “we conclude that the detection of an explosive concentration of methane, by a mine inspector, in an area of an underground coal mine in which miners work or travel, justifies the issuance of an imminent danger order requiring the immediate withdrawal of miners, without the need to determine the presence of a ready ignition source.” In their opinion, when methane in active work areas reaches the explosive range, it becomes imminently dangerous until the condition can be abated. Commissioners Jordan and Cohen concluded that it is consistent with the statutory language of the Mine Act for an inspector to issue an imminent danger order based only on a methane presence at or above the explosive level.

In their dissent, Commissioners William Althen and Michael Young cited circumstances in the mine at the time that mitigated the explosion potential and pointed out that Commission precedent precluded an inspector from issuing a withdrawal order without first determining if the potential hazard could be abated before it becomes an imminent danger. Commissioners Althen and Young noted that no miners were present in the crosscut and that the inspector issued the order immediately after he detected elevated methane levels, without first looking for conditions that might give rise to an imminent danger. As for the Lo Trac, the dissenting commissioners said, “It was undisputed that at the time the inspector issued the imminent danger order the Lo Trac was out of service, was not in the crosscut, and was at least 200 feet from the cavity.” Nothing showed that methane was migrating into the crosscut.

Further, the dissenter pointed out, a means of abatement was readily available and, once engaged, cleared up the problem quickly. “To abate the violation, miners simply advanced the curtain already known by the inspector to be ventilating the crosscut by about 20 feet. … [T]he entire process took less than twenty minutes in total and dissipation of the methane took no more than 15 seconds after the curtain was advanced,” Commissioners Althen and Young said. They concluded there was no imminent danger to justify the inspector’s order.

In a second case (Sec’y of Labor v. Jim Walter Resources, Inc., No. SE 2011-407-R, Sept. 30, 2015), released by the Commission on the same day and involving the same mine, Nakamura, Althen, and Young affirmed a judge’s ruling upholding another imminent danger order. Elevated methane levels also were found in a roof cavity, but miners and ignition sources were present in the vicinity. In addition, the judge held that methane had the potential to migrate from the cavity. Jordan and Cohen concurred with the decision, but separately expressed an opinion identical to their opinion in the first case, contending that there is no need to determine the presence of a ready ignition source.

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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