Subject to published rules of the agency and within its powers, employees presiding at hearings may regulate the course of the hearing;

This section grants wide latitude and substantial discretion to Administrative Law Judges to determine the manner in which a hearing proceeds. See also Cella v. United States, 208 F.2d 783 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954), Fairbank v. Hardin, 429 F.2d 264 (9th Cir.), cert. denied, 400 U.S. 943 (1970). We are of the opinion that this discretion includes the power to determine the order of proof, and, in the absence of clear abuse, an Administrative Law Judge's placement of the burden of going forward will not be overturned. We perceive no such abuse in this case.

Contrary to the position taken by MESA both at the hearing and in its brief on appeal, there is no requirement that the applicant establish a prima facie case before MESA may be required to present its proof. Moreover, there is no persuasive basis in law or precedent cited to us or disclosed by our research to support MESA's additional argument that the burden of

65 U.S.C. § 556 (c) (5).

The applicable regulation is 43 CFR 4.582 (a) (5) which does not modify section 556.

going forward is necessarily linked to the burden of proof and that both must be borne by the same party. We conclude, therefore, that there was no error in the Administrative Law Judge's ruling on the order of proof.

By contrast, the authority which governs the burden of proof is not set out in a statute, but rather in a specific regulation, namely, 43 CFR 4.587, promulgated under the Act. That section provides in relevant part as follows:

In proceedings brought under the Act, the applicant *** shall have the burden of proving his case by a preponderance of the evidence provided that * * * (b) wherever the violation of a mandatory health and [or] safety standard is an issue the Bureau shall have the burden of proving the violation by a preponderance of the evidence. [sic.]

MESA contends in substance that the proviso quoted above has no application to review proceedings under section 104 (a) of the Act which authorizes a withdrawal order upon a finding of imminent danger. After a close analysis of the Act and the regulation quoted above, we are of the view that MESA is correct.

Section 3(j) of the Act defines imminent danger to be "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." The pertinent words in that phrase are "condition or practice." In reading sections 3(j) and 104 (a) together and then comparing the two with

the other subsections of section 104, which contain the term "violation," we are convinced that the lack of parallelism was a conscious act rather than the result of an inadvertent slip of the draftsman's pen. In fashioning section 3(j), we think that the Congress deliberately chose terminology broader than the word "violation" because it was vitally aware of the uniquely hazardous nature of mining and of the necessity for granting the inspector wide discretion to assess imminent danger unfettered by the irrelevant question of whether the cited condition or practice fits the technical definition of a codified violation. It is conceivable that a cited condition or practice may fail to fit all the requirements of a violation but still be an imminent danger. Likewise, we can easily envision a lawful imminent danger withdrawal order which is based upon a combination of conditions or practices no one of which is individually a violation. In employing this more inclusive terminology, Congress sought to reach any conditions or practices, whether or not codified, which constituted an imminent danger to life and limb. To put the matter another way: whether a condition or practice constitutes a violation was not intended to be and is not a controlling issue in a proceeding to review an imminent danger withdrawal order. The Administrative Law Judge, therefore, erred in requiring the Bureau to preponderate upon an irrelevancy.

We draw additional support for this conclusion from the inconsist

ent and unfair consequences which would result from affirming the ruling. If the condition or practice cited in the withdrawal order was not based upon a violation, the proviso in 43 CFR 4.587 would not apply and the burden of proof would be on the operator rather than on MESA. We think that the variability in the burden would be totally arbitrary and without justification in policy and, therefore, we decline to accept such an interpretation of the regulation.

We emphasize that, in a proceeding to review a section 104 (a) withdrawal order, the operator bears the burden of proof with respect to both the threshold issue of no danger and the issue of no imminence. As a minimum, the operator need only prove no danger by a preponderance of the evidence in order to prevail. If the Administrative Law Judge concludes that the cited condition or practice was not a danger or that the danger was not imminent, the withdrawal order must be vacated.

B.

We are disturbed by the Administrative Law Judge's decision to convert the withdrawal order in issue to a notice of violation, an action which we think exceeded his lawfully delegated powers. The power to issue a withdrawal order or a notice of violation is vested by the Act in the "authorized representative" of the Secretary. It is clear from the Act itself and the legislative history that neither an Administrative Law Judge nor

this Board is an "authorized representative." as that term is used in the Act. Section 103 sets forth the responsibilities and powers of the "authorized representatives" and deals exclusively with inspections and investigations. Elsewhere, in section 505, headed: "Inspectors; Qualifications; Training," the qualifications of "authorized representatives" are detailed. These qualifications concern practical mining experience or engineering education which are hardly part and parcel of the background of the Administrative Law Judges. Moreover, in the legislative history, there is a statement setting forth the agreed position of the House and Senate conferees on the Act. In the discussion of the term "delegate," defined in section 3(a), the statement reads: s

The delegate would, of course, be a person designated by him [the Secretary] to administer and enforce this act and would include the Federal inspectors who are referred to throughout the act as the Secretary's authorized representatives. (Italics added.)

It is evident to us that the term "authorized representative" does not include Administrative Law Judges.

In addition to the statutory cir cumscription of the power of Administrative Law Judges, there is a specific regulation governing their powers. We find nothing in

House Comm. on Ed. and Labor, Legislative History Federal Coal Mine Health and Safety Act, Comm. Print, 91st Congress, 2d Sess., pp. 1025-26.

43 CFR 4.582.

this regulation which would authorize Judges to charge operators with a violation or to choose between statutory sanctions. This regulation reflects the pattern in the statute which deliberately differentiated prosecutorial functions from those which are purely of a review or adjudicative nature.

We, therefore, conclude that an Administrative Law Judge has no authority to convert a withdrawal order to a notice of violation. The conversion which occurred in the instant case was error.

C.

In determining the validity of the withdrawal order in the first instance, the Administrative Law Judge was limited either to upholding it or vacating it. The ultimate question before him was whether Freeman successfully proved by a preponderance of the evidence that the cited condition was not imminently dangerous. We hold that Freeman did not.

The Administrative Law Judge found that the aggregate length of the beltways cited in the order amounted to approximately 7200 feet and that there was float coal dust throughout the area, the general color being black. He also found that there was no methane gas presviolation of permissible equipment, ent, no inadequacy of ventilation, no and no dust in suspension. He concluded that the constituent elements of an explosion were not present, and held, as a matter of law, that "Freeman met whatever burden it

had of proving that a finding of imminent danger was not warranted." Dec. 8.

We are of the opinion that the findings of fact are inadequate. The fatal defects are omissions of significant, unchallenged, and apparently credible evidence from the hearing. We find as additional facts the following: first, float coal dust is highly flammable and is so lightweight that it can be easily disturbed and suspended in air (Tr. 34); second, the mine had previously been classified as gassy (Tr. 29); third, between March 8 and March 20, there were two incidents where significant amounts of methane were detected (Tr. 169); fourth, at the time the withdrawal order was issued, the mine was in operation (Tr. 115); finally, in 1963 or 1964, there had been a dust explosion in this mine (Tr. 86).

It bears repeating that the statutory definition of the term "imminent danger" is "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." The word "reasonably" necessarily means that the test of imminence is objective and that the inspector's subjective opinion need not be taken at face value. It also suggests that each case must be decided on its own peculiar facts. The question in every case is essentially the proximity of the peril to life and limb. Put another way: would a reasonable man, given a qualified inspector's

education and experience, conclude that the facts indicate an impending accident or disaster, threatening to kill or to cause serious physical harm, likely to occur at any moment, but not necessarily immediately? The uncertainty must be of a nature that would induce a reasonable man to estimate that, if normal operations designed to extract coal in the disputed area proceeded, it is at least just as probable as not that the feared accident or disaster would occur before elimination of the danger. See Eastern Associated Coal Corp., 2 IBMA 128, 80 I.D. 400, CCH Employment Safety and Health Guide par. 16,187 (1973).10

Turning to the reconstructed findings of fact, we note, first, that the float coal dust layer spanned a very large area. The ease with which that dust could have been suspended leads us to discount the fact that it was only lying on the surface at the time the withdrawal order was issued. If normal operations to extract coal proceeded while abatement was attempted, it is probable that the dust would be disturbed. Moreover, the length of 7200 feet is important because it substantially multiplies the chances for disturbing the dust and increases the number of miners exposed to the threat of death or injury by a propagated explosion.

Second, the insignificance of the amount of methane which was probably in the air at the time that the

10 This case has been appealed to the United States Court of Appeals for the Fourth Circuit where it is pending. No. 73-1859 (July 13, 1973).