Issue Presented

Did the Bureau of Mines inspector act in conformance with the mandate of section 104 (a) of the Act in issuing the order of withdrawal?

Discussion

Our review of the entire record in this case indicates that there is no

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and Valley Camp that an order of withdrawal not only takes the miner or miners out of the area of the dangerous condition, but also keeps them out until the danger has been eliminated. The Bureau argues that to apply the rationale of the Judge would be to permit an operator to avoid any order of withdrawal simply by withdrawing the miners. from the condition pointed out by an inspector, at least until the inspector departed the premises.

conditions that existed near the loading point at the time of the inspection, nor is there any doubt that a danger existed of a type which could reasonably be expected to cause death or serious physical harm to an operator of the shuttle car. The sole disagreement centers on the question of the "imminence" of the danger in light of the operator's work stoppage and commencement of the abatement process prior to issuance of the order; i.e.,

whether the condition could reasonably be expected to cause death or serious harm before it could be abated.

The Bureau contends that the reasoning of the Judge in holding that the danger did not meet the statutory definition of "imminent danger" is faulty in that the Judge overlooked the Board's previous holdings in UMWA, Dist. No. 31

2 Sec. 3(j) of the Act: "Imminent danger' means the existence of any condition or practice in a coal mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated."

hand are distinguishable from those in the aforecited cases, and although we adhere to the principle enunciated in those cases, we need not rely upon those cases to support our decision here.

The statutory definition of "imminent danger" must be read in its. entirety without picking out individual words or phrases, and also must be construed in conjunction with section 104(a) of the Act providing for the issuance of imminent danger orders. We also note that section 104(d) of the Act provides in part that persons whose presence in the area of danger is necessary, in the judgment of the operator or a Bureau inspector, to eliminate the dangerous condition shall not be required to be withdrawn. Thus, it would logically follow, and we believe the Congress clearly intended, that a 104 (a) withdrawal

3 United Mine Workers of America, District #31, 1 IBMA 31, 78 I.D. 153, 2 CCH Occupational Safety and Health Guide par. 15, 367a, at p. 20,510 (May 4, 1971). The Valley Camp Coal Company, 1 IBMA 243, 79 I.D. 730, 2 CCH Occupational Safety and Health Guide par. 15,390, at p. 20,568 (December 29, 1972).

order requires that normal mining operations in the area of danger must cease until the inspector determines that the imminent danger has been eliminated. It is our view that an imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated. The dangerous condition cannot be divorced from the normal work activity. The question must be asked-could normal operations proceed prior to or during abatement without risk of death or serious physical injury? If the answer to this question is "no," then an imminently dangerous situation exists and the issuance of a 104(a) withdrawal order is not only proper but mandatory under the Act. Although prior evacuation of miners or voluntary work stoppage by an operator may be laudatory and indicate concern for the safety of the miners, such actions, although taken in all good faith, cannot operate to eliminate an otherwise imminently dangerous condition or practice. Likewise, the fact that the process of abatement may have commenced prior to the issuance of the order, and that the time required for abatement may be brief, does not in our view serve to invalidate the order. We emphasize that the phrase in the definition "before such condition or practice can be abated," in no way relates to the time it may take to abate but relates solely to the condition of "imminence" of dan

ger. In other words, a condition or practice cannot be imminently dangerous if the specific and usual mining activity can safely continue in the area during (or prior to) the abatement process.

We have considered and we reject Eastern's argument that the inspector exceeded his authority for the reasons that he could or probably should have taken alternative actions, such as issuing notices of violation or doing nothing, which in Eastern's view, would have accomplished the same result. This argument could be raised in almost every case. However, we are not called upon here to decide whether the inspector chose the most appropriate of several alternatives, but rather we are called upon to decide whether the action he did take was a proper and lawful exercise of authority under the Act.

The Secretary under section 104 (a) of the Act is mandated to be alert for conditions and practices constituting imminent danger, and to take immediate action calculated to insure the safety of the miner or miners exposed to such hazard until such time as the conditions or practices causing the danger are eliminated to his satisfaction and he has determined that normal mining operations may safely be resumed in the area.

The facts presented in this case indicate to us that the inspector acted in a reasonable, proper and lawful manner. He observed an imminently dangerous condition, immediately issued a 104(a) order, remained on the scene until, in his

judgment, the danger was eliminated, and then lifted the order so that normal operations could be resumed. We conclude therefore that the issuance of the withdrawal order was in conformance with section 104(a) of the Act, and that the decision of the Administrative Law Judge vacating the order must be reversed.

ORDER

WHEREFORE, pursuant to the authority delegated to the Board by the Secretary of the Interior (43) CFR 4.1(4)), IT IS HEREBY

ORDERED that:

The decision of the Administrative Law Judge IS REVERSED and the Order of Withdrawal No. 1

CJT, issued April 24, 1972, to Eastern Associated Coal Corporation

IS AFFIRMED.

C. E. ROGERS, Jr., Chairman, JAMES M. DAY, Ex-Officio Member.

DISSENTING OPINION BY

MR. DOANE

With all due respect to my colleagues, I must dissent from the views expressed in the majority opinion. The sole question presented by this appeal is whether the inspector properly applied the statutory definition of "imminent danger" 1 in issuing the withdrawal order at the Joanne Mine, April 24, 1972. I agree with Judge Moore that he did not.

1 Section 3 (j) of the Act is set out in note 2 of the majority opinion at 134.

My review of the record convinces me that the inspector's action was based upon a misunderstanding of the meaning of "imminent danger," as well as a misconception of the proper role of an imminent danger withdrawal order under the Act.

As I understand the facts in this case, the safety hazards described could cause no physical harm or death to a shuttle-car operator or anyone else, unless shuttle cars were to be operated through the restricted passageway. However, the restrictions were in the process of being removed and the potential dangers abated prior to or before there could be any reasonable likelihood or expectation that anyone would attempt to run shuttle cars through the dangerous area. This being the situation, the element of

"imminence" was absent at the time the inspector issued the withdrawal order.

Meaning of "Imminent" and

"Imminent Danger"

The plain meaning of the word, "imminent," according to Webster's New International Dictionary, Unabridged, 2d Ed., is: "Threatening to occur immediately; near at hand.

*** Imminent applies to that [danger] which threatens to happen immediately, or is on the point of happening."

The choice of language used by Congress in section 104 (a) of the Act indicates an unmistakable intention that there must be now, at the present time, not sometime in the future or upon the happening

of another event, an existing danger which can reasonably be expected to cause serious injury or death before it can be abated. This is supported by the Legislative History of the Act, which includes the following statement:

The concept of an imminent danger as it has evolved in this industry is that the situation is so serious that the miners must be removed from the danger forthwith when the danger is discovered without waiting for any formal proceedings or notice. The seriousness of the situation demands such immediate action. The first concern is the danger to the miner. Delay, even of a few minutes, may be critical or disastrous. After the miners are free of danger, then the operator can expeditiously appeal the action of the inspector. (Italics supplied.)"

The majority overlooks the foregoing Legislative History as well as a basic rule of statutory construction in its statement, at 135, supra, that "The statutory definition of 'imminent danger' must be read in its entirety without picking out individual words or phrases ***” It is true that the definition must be read in its entirety, but the key words, "reasonably" and "before" in section 3 (j) of the Act cannot be ignored.3

2 Committee on Education and Labor. House of Representatives, Legislative History Federal Coal Mine Health and Safety Act (March 1970) at 89.

"It is an elementary rule of [statutory] construction that effect must be given, if possible, to every word, clause and sentence of a statute." * * Sutherland, Statutory Construction, 3d Ed., § 4705 at 339; See U.S. v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L. Ed. 615 (1955).

Is Time for Abatement of a Hazardous Condition to be Considered by an Inspector as a Factor in Determining Whether an Imminent Danger Exists?

The Board, in the majority opinion, at 137, supra, rejected Judge Moore's concepts regarding the part played by the element of time in the definition of "imminent danger," when it says:

*** We emphasize that the phrase in the definition "before such condition or practice can be abated” in no way relates to the time it may take to abate but relates solely to the condition of "imminence" of danger.

This position is not in harmony with the purposes of §§ 3 (j) or 104(a) and (b) of the Act or with the Board's own decision in Carbon Fuel Company. The statutory words "imminent" and "before" connote the element of time; they are "time" words. In the Carbon Fuel case we correctly approved the concept that time for abatement must be considered in determining whether imminent danger exists in a coal mine. In that case, the Bureau of Mines argued and the Board favorably considered in holding for the Bureau, the following analysis: (1) to meet the first criteria of section 3(j) of the Act in determining

42 IBMA 42, 2 CCH Occupational Safety and Health Guide par. 15,471, at p. 20,747 (1973). (hereinafter cited as Carbon Fuel.]

See "Findings of Fact," Nos. 4 and 13 in Carbon Fuel, at 46 and 48; also 8ce paraphrased definition of section 3(j) at 49. Bureau's brief at 15-16 in Carbon Fuel.

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the existence of an imminent danger, an inspector must observe a condition in the coal mine which must reasonably be expected to cause death or serious physical harm, and (2) then the inspector must properly consider the time that would be required to abate the condition.

The Bureau argued in the Carbon Fuel case that in following the above steps, "The inspector was merely following the criteria of the Act in determining whether death or serious physical injury could reasonably be expected to occur before the condition or danger could be abated." The emphasis on the last eight words was supplied by counsel for the Bureau. No departure from this important and correct analysis of section 3(j) was even suggested in the Bureau's argument before the Board in the instant case.

Is the Board Called upon to Decide Whether the Inspector Chose the Correct Alternative Course of Action?

I believe that the Board is called upon to determine whether the inspector did choose the correct of several alternatives available to him under the Act. In considering all the sanctions available to the inspector, it must be remembered that every mandatory safety standard contemplates a potential danger or hazard to miners which the Act requires to be eliminated. Every such danger or hazard is not imminent,

7 Id.

however, and does not require the withdrawal of personnel. That is why section 104 (b) of the Act requires the use of notices of violation of mandatory safety standards which prescribe a reasonable time in which the operator is to abate the safety hazard involved. The mere fact that an inspector has the discretion to issue a notice of violation, or, in the alternative where the circumstances are appropriate, an imminent danger withdrawal order, does not mean that the Board, as the final adjudicatory authority for the Department, must approve the subjective judgment of the inspector where he chooses the wrong sanction.

A principal function of any governmental administrative review tribunal, insofar as possible, is to counteract the actions of administrative personnel which do not conform to a statutory standard or which are not supported by the facts. Failure to do so would condone, in the first instance, an illegal, or, in the second, an arbitrary result.

When the inspector observed the hazardous conditions in this case, he was confronted with choosing one of three alternatives: (1) to issue a withdrawal order for imminent danger; (2) to issue appropriate notices of violation of mandatory safety standards which could require abatement within a matter of minutes; or (3) to issue no formal citation, since abatement was in process.

The record discloses that this inspector made two mistakes. First,