Mining Inspector’s Withdrawal Order Upheld by Appeals Court

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By Lars-Eric Hedberg

Oct. 7 — A mine safety inspector lawfully issued an imminent danger worker withdrawal order when he detected methane gas in a roof cavity of a coal mine, a federal appeals court ruled ( Warrior Met Coal Mining, LLC v. Sec’y of Labor , 2016 BL 334458, 11th Cir., No. 15-14885, unpublished 10/6/16 ).

The Mine Safety and Health Administration inspector issued in August 2012 the order, which required mining activities to cease for 20 minutes, after he measured a potentially explosive concentration of gas in the underground mine in Alabama owned by Jim Walter Resources, according to an Oct. 6 unpublished opinion handed down by a panel of the U.S. Court of Appeals for the Eleventh Circuit.

Jim Walter Resources challenged the withdrawal order, issued under Section 107(a) of the Mine Act, before a Federal Mine Safety Health Review Commission administrative law judge.

The ALJ ruled in January 2014 that the inspector reasonably believed that a Lo Trac, a low-profile utility vehicle used to move mining materials, could enter the crosscut in the mine, arc and spark, and ignite the methane. Specifically, the ALJ found the inspector did not abuse his discretion by issuing the order, despite the remote risk of the Lo Trac entering the crosscut.

A divided review commission affirmed the ALJ’s decision ( Sec’y of Labor v. Jim Walter Res., Inc. , 37 FMSHRC 1968, FMSHRC, No. SE 2012-681-R, 9/30/15 ).

Although Jim Walter Resources filed for bankruptcy while its petition for review was pending before the Eleventh Circuit, Warrior Met purchased the company’s assets and continued the petition.

ALJ ‘Carefully Considered’ Facts

The court of appeals agreed with the review commission that substantial evidence supported the ALJ’s decision.

It rejected Warrior’s argument that the mine’s alternative inferences from the facts are dispositive. Warrior had pointed to the mine’s inactivity, lack of miners near the cavity, and unlikelihood that a Lo Trac could enter the area as reasons why the inspector should not have issued the order.

In addition to the methane reading, the inspector observed at least eight workers near the cavity and knew the Lo Trac was mobile, according to the court.

“Importantly, the ALJ did not ignore the alternative inferences; rather, he determined that the inspector was within his discretion—by evaluating the circumstances at the time he issued the withdrawal order—to ensure the safety of the workers at the mine,” the court wrote.

The Eleventh Circuit decided the case without oral argument.

Maynard Cooper & Gale PC, Birmingham, Ala., represented Warrior Met.

Attorneys from the Department of Labor and review commission represented the commission.

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The unpublished opinion of the U.S. Court of Appeals for the Eleventh Circuit in Warrior Met Coal Mining, LLC v. Secretary of Labor is available at http://src.bna.com/jez.

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