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June 13, 1973 3(j) of the Act and that, therefore, and Valley Camps that an order of the order should be vacated.2
withdrawal not only takes the miner
or miners out of the area of the Issue Presented
dangerous condition, but also keeps
them out until the danger has been Did the Bureau of Mines inspec
eliminated. The Bureau argues that tor act in conformance with the
to apply the rationale of the Judge mandate of section 104(a) of the would be to permit an operator to Act in issuing the order of with
avoid any order of withdrawal simdrawal?
ply by withdrawing the miners Discussion
from the condition pointed out by Our review of the entire record in
an inspector, at least until the inthis case indicates that there is no
spector departed the premises. substantial dispute concerning the
Although the facts in the case at conditions that existed near the
hand are distinguishable from those
in the aforecited cases, and although loading point at the time of the in
we adhere to the principle enunspection, nor is there any doubt that
ciated in those cases, we need not a danger existed of a type which could reasonably be expected to
rely upon those cases to support our
decision here. cause death or serious physical harm to an operator of the shuttle
The statutory definition of "imcar. The sole disagreement centers
minent danger" must be read in its on the question of the "imminence"
entirety without picking out inof the danger in light of the oper
dividual words or phrases, and also ator's work stoppage and com
must be construed in conjunction mencement of the abatement process
with section 104(a) of the Act proprior to issuance of the order; i.e., viding for the issuance of imminent whether the condition could reason
danger orders. We also note that ably be expected to cause death or
section 104(d) of the Act provides serious harm before it could be
in part that persons whose presence abated.
in the area of danger is necessary, The Bureau contends that the
in the judgment of the operator or a reasoning of the Judge in holding dangerous condition shall not be re
Bureau inspector, to eliminate the statutory definition of “imminent quired to be withdrawn. Thus, it
would logically follow, and we danger” is faulty in that the Judge overlooked the Board's previous
believe the Congress clearly inholdings in UMWA, Dist. No. 31 tended, that a 104(a) withdrawal
3 United Mine Workers of America, District 2 Sec. 3(j) of the Act : "'Imminent danger' #31, 1 IBMA 31, 78 I.D. 153, 2 CCH Occupameans the existence of any condition or prac- tional Safety and Health Guide par. 15, 367a, tice in a coal mine which could reasonably at p. 20,510 (May 4, 1971). The Valley Camp be expected to cause death or serious physical Coal Company, 1 IBMA 243, 79 I.D. 730, 2 harm before such condition or practice can CCH Occupational Safety and Health Guide be abated."
par. 15,390, at p. 20,568 (December 29, 1972).
order requires that normal mining ger. In other words, a condition or operations in the area of danger practice cannot be imminently danmust cease until the inspector deter- gerous if the specific and usual minmines that the imminent danger has ing activity can safely continue in been eliminated. It is our view that the area during (or prior to the
) an imminent danger exists when the
abatement process. condition or practice observed could We have considered and we reject reasonably be expected to cause Eastern's argument that the inspecdeath or serious physical harm to a tor exceeded his authority for the miner if normal mining operations reasons that he could or probably were permitted to proceed in the should have taken alternative acarea before the dangerous condition tions, such as issuing notices of is eliminated. The dangerous con- violation or doing nothing, which in dition cannot be divorced from the Eastern's view, would have accomnormal work activity. The question plished the same result. This argumust be asked — could normal op- ment could be raised in almost every erations proceed prior to or during case. However, we are not called abatement without risk of death or upon here to decide whether the inserious physical injury? If the an- spector chose the most appropriate swer to this question is "no," then an of several alternatives, but rather imminently dangerous situation we are called upon to decide whether exists and the issuance of a 104(a)
the action he did take was a proper withdrawal order is not only proper and lawful exercise of authority but mandatory under the Act. Al- under the Act. though prior evacuation of miners The Secretary under section or voluntary work stoppage by an 104(a) of the Act is mandated to be operator may be laudatory and indi- alert for conditions and practices cate concern for the safety of the constituting imminent danger, and miners, such actions, although taken to take immediate action calculated in all good faith, cannot operate to to insure the safety of the miner eliminate an otherwise imminently or miners exposed to such hazard dangerous condition or practice. until such time as the conditions Likewise, the fact that the process or practices causing the danger are of abatement may have commenced eliminated to his satisfaction and prior to the issuance of the order, he has determined that normal minand that the time required for ing operations may safely be reabatement may be brief, does not in sumed in the area. our view serve to invalidate the The facts presented in this case order. We emphasize that the phrase indicate to us that the inspector in the definition “before such con- acted in a reasonable, proper and dition or practice can be abated," in lawful manner. He observed an imno way relates to the time it may minently dangerous condition, imtake to abate but relates solely to the mediately issued a 104(a) order, condition of "imminence" of dan- remained on the scene until, in his June 13, 1973 judgment, the danger was elimi- My review of the record convinces nated, and then lifted the order so me that the inspector's action was that normal operations could be re- based upon a misunderstanding of sumed. We conclude therefore that the meaning of "imminent danger," the issuance of the withdrawal order as well as a misconception of the was in conformance with section proper role of an imminent danger 104(a) of the Act, and that the withdrawal order under the Act. decision of the Administrative Law As I understand the facts in this Judge vacating the order must be case, the safety hazards described reversed.
could cause no physical harm or
death to a shuttle-car operator or ORDER
anyone else, unless shuttle cars were WHEREFORE, pursuant to the
to be operated through the re
stricted passageway. However, the authority delegated to the Board by the Secretary of the Interior (43 restrictions were in the process of CFR 4.1(4)), IT IS HEREBY being removed and the potential ORDERED that:
dangers abated prior to or before The decision of the Administra
there could be any reasonable likeli
hood or expectation that anyone tive Law Judge IS REVERSED and the Order of Withdrawal No. 1
would attempt to run shuttle cars CJT, issued April 24, 1972, to East- through the dangerous area. This ern Associated Coal Corporation being the situation, the element of IS AFFIRMED.
"imminence” was absent at the time
the inspector issued the withdrawal C. E. ROGERS, Jr., Chairman. order. JAMES M. DAY, Ex-Officio Member.
Meaning of "Imminent" and
"Imminent Danger" DISSENTING OPINION BY
The plain meaning of the word, MR. DOANE
"imminent,” according to Webster's
New International Dictionary, UnWith all due respect to my colleagues, I must dissent from the abridged, 2d Ed., is: “Threatening
to occur immediately; near at hand. views expressed in the majority
*** Imminent applies to that opinion. The sole question presented [danger) which threatens to happen by this appeal is whether the inspec- immediately, or is on the point of tor properly applied the statutory happening.” definition of "imminent danger" 1 in
The choice of language used by issuing the withdrawal order at the
Congress in section 104(a) of the Joanne Mine, April 24, 1972. I agree Act indicates an unmistakable inwith Judge Moore that he did not.
tention that there must be now, at
the present time, not sometime in 1 Section 3(j) of the Act is set out in note 2 of the majority opinion at 134.
the future or upon the happening
of another event, an existing danger 18 Time for Abatement of a Hazwhich can reasonably be expected ardous Condition to be considto cause serious injury or death ered by an Inspector as a Factor before it can be abated. This is sup- in Determining Whether an Imported by the Legislative History of minent Danger Exists. the Act, which includes the follow
The Board, in the majority opining statement:
ion, at 137, supra, rejected Judge The concept of an imminent danger as Moore's concepts regarding the part it has evolved in this industry is that
played by the element of time in the the situation is so serious that the miners
definition of "imminent danger," must be removed from the danger forthwith when the danger is discovered with
when it says: out waiting for any formal proceedings or
* We emphasize that the phrase in notice. The seriousness of the situation
the definition “before such condition or demands such immediate action. The first
practice can be abated" in no way relates concern is the danger to the miner. Delay,
to the time it may take to abate but reeven of a few minutes, may be critical or
lates solely to the condition of “immindisastrous. After the miners are free of
ence" of danger. * * * danger, then the operator can expeditiously appeal the action of the inspector.
This position is not in harmony (Italics supplied.)?
with the purposes of $S3(j) or The majority overlooks the fore- 104(a) and (b) of the Act or with going Legislative History as well as
the Board's own decision in Cara basic rule of statutory construc
bon Fuel Company. The statutory cion in its statement, at 135, supra,
words "imminent" and "before" that “The statutory definition of
connote the element of time; they 'imminent danger' must be read in
are "time" words. In the Carbon its entirety without picking out in
Fuel case we correctly approved the dividual words or phrases ***."
concept that time for abatement It is true that the definition must be
must be considered in determining read in its entirety, but the key
whether imminent danger exists in a words, "reasonably" and "before"
coal mine. In that case, the Bureau in section 3(j) of the Act cannot be of Mines argued and the Board favignored.
orably considered in holding for the
Bureau, the following analysis: 2 Committee on Education and Labor, House (1) to meet the first criteria of secof Representatives, Legislative History Fed
tion 3(j) of the Act in determining eral Coal Mine Health and Safety Act (March 1970) at S9.
3 “It is an elementary rule of (statutory! * 2 IBMA 42, 2 CCH Occupational Safety construction that effect must be given, if and Health Guide par. 15,471, at p. 20.747 possible, to every word, clause and sentence (1973). (hereinafter cited as Carbon Fuel.] of a statute." * Sutherland. Statutory 6 See “Findings of Fact." Nos. 4 and 13 Construction, 3d Ed., $ 4705 at 339 ; See U.S. in Carbon Fuel, at 46 and 48; also v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 paraphrased definition of section 3(j) at 49. L. Ed. 615 (1935).
6 Bureau's brief at 15-16 in Carbon Fuel.
June 13, 1973 the existence of an imminent dan- however, and does not require the ger, an inspector must observe a withdrawal of personnel. That is condition in the coal mine which why section 104(b) of the Act remust reasonably be expected to quires the use of notices of violation cause death or serious physical of mandatory safety standards harm, and (2) then the inspector which prescribe a reasonable time must properly consider the time in which the operator is to abate that would be required to abate the the safety hazard involved. The condition.
mere fact that an inspector has the The Bureau argued in the Carbon discretion to issue a notice of violaFuel case that in following the tion, or, in the alternative where the above steps, “The inspector was circumstances are appropriate, an merely following the criteria of the imminent danger withdrawal order, Act in determining whether death does not mean that the Board, as the or serious physical injury could rea- final adjudicatory authority for the sonably be expected to occur before Department, must approve the subthe condition or danger could be jective judgment of the inspector abated." - The emphasis on the last
where he chooses the wrong sanceight words was supplied by counsel tion. for the Bureau. No departure from A principal function of any govthis important and correct analysis ernmental administrative review of section 3(j) was even suggested tribunal, insofar as possible, is to in the Bureau's argument before the counteract the actions of adminisBoard in the instant case.
trative personnel which do not con
form to a statutory standard or Is the Board Called upon to Decide which are not supported by the
Whether the Inspector Chose the facts. Failure to do so would conCorrect Alternative Course of done, in the first instance, an illegal, Action?
in the second, an arbitrary result. I believe that the Board is called
When the inspector observed the
hazardous conditions in this case, he upon to determine whether the in
was confronted with choosing one spector did choose the correct of
of three alternatives: (1) to issue a several alternatives available to him under the Act. In considering
withdrawal order for imminent
danger; (2) to issue appropriate all the sanctions available to the in
notices of violation of mandatory spector, it must be remembered that every mandatory safety standard safety standards which could re
quire abatement within a matter of contemplates a potential danger or hazard to miners which the Act re
minutes; or (3) to issue no formal quires to be eliminated. Every such citation, since abatement was in danger or hazard is not imminent,
The record discloses that this in?Id.
spector made two mistakes. First,