           Case: 15-14885   Date Filed: 10/06/2016   Page: 1 of 11


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-14885
                         Non-Argument Calendar
                       ________________________

                       Agency No. SE 2012-681-R



WARRIOR MET COAL MINING, LLC,

                                                            Petitioner,

versus

SECRETARY OF LABOR,
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                                                            Respondents.

                       ________________________

                  Petition for Review of a Decision of the
            Federal Mine Safety and Health Review Commission
                        ________________________

                            (October 6, 2016)

Before HULL, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:
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      Warrior Met Coal Mining, LLC petitions for review of the Federal Mine

Safety and Health Review Commission’s decision to affirm an Administrative Law

Judge’s determination that a Mine Safety and Health Administration inspector was

within his discretion in issuing an “imminent danger withdrawal order” to a mine

operator under § 107(a) of the Mine Act, 30 U.S.C. § 817(a). Warrior argues that

the Commission erred in determining that the ALJ’s decision was supported by

substantial evidence. After review of the record and the parties’ briefs, we deny

the petition and affirm the Commission’s decision.

                                        I

      Because we write for the parties, we assume their familiarity with the

underlying record and facts, and recite only what is necessary to resolve this

appeal.

      After detecting a potentially explosive concentration of methane gas in a

roof cavity of a coal mine operated by Jim Walter Resources, an MSHA inspector

issued an imminent danger withdrawal order that required the temporary cessation

(for about twenty minutes) of coal mining activities.         JWR contested the

withdrawal order before an ALJ. Following an evidentiary hearing that included

the testimony of several witnesses and review of the parties’ briefs, the ALJ

determined that the MSHA inspector had not abused his discretion in issuing the

withdrawal order.


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      In reaching his decision, the ALJ recognized that the “critical question in

determining whether an accumulation of methane presents an imminent danger is

whether there is an ignition source that might reasonably be expected to cause an

explosion . . .” that could result in harm or serious injury to miners. See ALJ

Decision, 36 FMSHRC 235, 240 (Jan. 2014). The ALJ noted that there was no

dispute that there was a methane buildup in a roof cavity of the mine that was in

the explosive range (above 5%). The ALJ then accepted only one of the four

potential ignition sources identified by the inspector. Recognizing the conflicting

testimony as to whether the ignition source—a Lo Trac vehicle routinely used to

transport mining materials—could have entered the area near the roof cavity, the

ALJ ultimately concluded that although the risk was remote, the inspector’s

decision to issue the withdrawal order was objectively reasonable.

      Following the ALJ’s decision, JRW petitioned for review before the Federal

Mine Safety and Health Review Commission. In a split decision, a majority of the

five-member Commission affirmed the ALJ’s decision, determining that it was

supported by substantial evidence.      See Secretary of Labor v. Jim Walter

Resources, Inc., 37 FMSHRC 1968, 1969 (Sep. 2015).            The two dissenting

commissioners viewed the inspector’s withdrawal order as premature because there

was “clearly time to consider whether there was a reasonable expectation of injury




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before abatement [of the methane concentration] could be completed . . . .” See id.

at 1982. JWR appealed the Commission’s decision.

       During the pendency of this appeal, JWR filed for bankruptcy and Warrior

purchased JWR’s assets at a bankruptcy sale. As the current owner of the coal

mine at issue in this appeal, Warrior petitions this Court for review of the

Commission’s decision to affirm the ALJ’s findings.1


                                               II

       We have jurisdiction to review a decision of the Commission under §

106(a)(1) of the Federal Mine Safety and Health Act, 30 U.S.C. § 816(a)(1). We

review de novo the legal conclusions of the ALJ and the Commission.                         See

Sumpter v. Sec’y of Labor, 763 F.3d 1292, 1299 (11th Cir. 2014). Findings of fact,

however, are reviewed under the substantial evidence test. See id. See also 30

U.S.C. § 816(a)(1) (“The findings of the Commission with respect to questions of

fact, if supported by substantial evidence on the record considered as a whole, shall

be conclusive.”).      Substantial evidence includes “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” See Sumpter,

763 F.3d at 1299 (internal citation and quotation marks omitted). This limited

review does not allow us to re-weigh the evidence or question an ALJ’s credibility

determinations. See id. at 1300.
       1
         In June of 2016, a panel of this Court granted JWR’s motion to substitute Warrior as the
petitioner under Fed. R. App. P. 43(a).
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                                         III

      The Mine Act authorizes the Secretary of Labor, largely through MSHA

inspectors, to take preventative or remedial actions when certain conditions arise in

a coal mine.     See generally 30 U.S.C. §§ 813–817.        This case concerns an

inspector’s authority to issue an imminent danger withdrawal order for mine

workers under § 107(a) of the Act.

      Notably, the Act begins with Congress’ declaration that “the first priority

and concern of all in the coal or other mining industry must be the health and

safety of its most precious resource—the miner . . . .” 30 U.S.C. § 801. In

accordance with this purpose, § 107(a) of the Act authorizes an inspector to issue a

withdrawal order upon detection of an imminent danger during a mine inspection

until the inspector determines that the “imminent danger and the conditions or

practices which caused such imminent danger no longer exists.” See id. at §

817(a). An “imminent danger” is defined as “the existence of any condition or

practice in a coal or other mine which could reasonably be expected to cause death

or serious physical harm before such condition or practice can be abated.” Id. at §

802(j).




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      After reviewing the testimony of five witnesses and relevant provisions of

the Mine Act regarding imminent dangers, the ALJ applied the two main factors

for evaluating an “imminent danger” in a coal mine. The ALJ first highlighted the

undisputed presence of methane gas in the explosive range.           Next, the ALJ

examined whether the inspector could identify a potential ignition source and

agreed that the “Lo Trac [vehicle] [wa]s a mobile piece of machinery that can be

reasonably expected to travel to various portions of the mine, including the [area

where] . . . the buildup of methane remained in unremediated condition.” See ALJ

Decision, 36 FMSHRC at 243. The ALJ excluded three additional ignition sources

based on their distance from the roof cavity and found (based on the mine

operator’s expert witness’ testimony) that methane rapidly dissolves after it

escapes from a roof cavity. See id. at 241–42. The ALJ nevertheless rejected the

mine operator’s argument that speed of methane dissolution alone negates the

immediacy of a threat from an inspector’s perspective. See id. at 244.

      The ALJ then determined that there were sufficient objective reasons for the

inspector to conclude that the Lo Trac vehicle could have entered the dangerous

area and ignited the methane before it could have been diluted to a safe level. The

ALJ noted the Lo Trac vehicle’s mobility, the lack of enclosures to secure its

electrical components, the proximity to the roof cavity, and the fact that the vehicle

was “in an operable condition at the time of the issuance of the imminent danger


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order.” See id. at 243. The ALJ further reasoned that “[t]he fact that the Lo Trac

had been ‘tagged out’ for repair (not by order of the inspector but by mine

authorities) [was] not dispositive” on the issue of whether it was likely that the Lo

Trac vehicle could have entered the dangerous area. See id. In sum, the ALJ

concluded that, from the inspector’s perspective, nothing could have prevented the

Lo Trac vehicle from being used to transport materials to mine workers near the

dangerous roof cavity.

      In reviewing the ALJ’s opinion, a majority of the Commission began by

recognizing two factors that influenced the inspector’s decision. See Jim Walter

Resources, 37 FMSHRC at 1971–72. First, the Lo Trac vehicle was a “non-

permissible” piece of equipment—meaning that it lacked safety enclosures to

prevent an explosion.2 Second, the inspector “knew that the Lo Trac [wa]s a

mobile piece of equipment that commonly delivered materials” throughout the area

near the roof cavity. See id. The majority cited the ALJ’s conclusion that although

the Lo Trac vehicle was tagged out (to fix a minor leak), none of the evidence

indicated that the vehicle could not have been put back into use before the methane

could be diluted. See id. at 1970. Acknowledging the inspector’s awareness that

the surrounding area was the source of some mining activity, the majority

concluded that the ALJ’s decision was supported by substantial evidence and that

      2
          The Lo Trac vehicle had open electrical connections, an exposed alternator, and
“frictional breaks that may cause sparks.” See ALJ Decision, 36 FMSHRC at 242.
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“[i]t was reasonable for [the inspector] to surmise that the Lo Trac could wind up

in a position where it could ignite the methane in the roof cavity.” See id. at 1972–

73.

      Warrior encourages us to adopt the dissent’s position that the ALJ erred

because he failed to focus on whether the inspector made an objectively reasonable

investigation of the facts before issuing the withdrawal order.           The dissent

reasoned that, in light of the statutory definition for “imminent danger” requiring a

reasonable potential for injury “before such condition or practice can be abated,”

see 30 U.S.C. § 802(j), the inspector acted prematurely “[g]iven the obvious and

nearby means for rapid abatement and the absence of any ignition source.” See id.

at 1982. We concur that the sufficiency of an inspector’s investigation depends on

the circumstances. We disagree, however, that the inspector’s evaluation of the

circumstances here was objectively unreasonable.

      Warrior also points to another case where a unanimous Commission panel

determined that an MSHA inspector had abused his discretion in issuing two

withdrawal orders based on a single criterion.           See Secretary of Labor v.

Cumberland Coal Resources, 28 FMSHRC 545, 556 (Aug. 2006) (reversing an

ALJ’s decision because the inspector was advised to pre-write imminent danger

orders “if he found more than 4.5% methane . . . preclud[ing] the inspector from

conducting a requisite reasonable investigation of the facts in exercising his


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discretion”). That case, however, is not helpful here. Unlike the situation in

Cumberland Coal, where the inspector relied on the methane readings alone, the

inspector in this case looked beyond the methane reading and specifically

considered whether there was an ignition source that could potentially ignite the

methane and cause injury to miners.          Moreover, it was unclear whether the

inspector in Cumberland Coal had properly identified methane concentrations in

the explosive range. See id. at 557 (explaining that the inspector admitted he was

unsure about the methane concentration in one of the areas where he issued an

imminent danger order). The inspector’s methane reading is undisputed here.

      Warrior’s principal argument is that alternate inferences from the facts—the

mine’s inactivity, lack of miners near the roof cavity, and the unlikelihood that the

Lo Trac vehicle could have entered the area in time to ignite the methane—are case

dispositive. Given the substantial evidence standard, we disagree. The inspector

testified that he observed at least eight workers at the mine and that he knew the Lo

Trac vehicle was mobile. Three workers testified that they were in the area near

the roof cavity, including one miner who was directed to move the Lo Trac vehicle

to a washing station nearby. A safety supervisor and a miners’ representative were

with the inspector when he found the methane buildup in the roof cavity. The fact

that no coal was being produced in the area, alone, does not rule out the possibility

of an imminent risk.


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      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 ALJ understood that the Lo Trac vehicle’s risk of

ignition was remote. Citing clothing static as an example, the ALJ said that

ignition sources are speculative in nature. The ALJ explained that “when methane

gathers in the explosive range, any spark is an ignition source . . . [thus,] [t]he issue

[wa]s whether the inspector’s decision to consider the possibility that the Lo Trac

could [have] enter[ed] the crosscut and a spark therefrom could [have] ignite[d] the

methane is a reasonable one.” See ALJ Decision, 36 FMSHRC at 243.

      The inspector’s exercise of his discretion to issue a withdrawal order here

caused mine operations to shut down for approximately twenty minutes until the

methane inside the roof cavity was diluted to a safe level. The ALJ’s decision

demonstrates careful consideration of the factual circumstances in light of the

witness testimony presented, and it supports the conclusion that the MSHA

inspector did not abuse his discretion in issuing the withdrawal order. To hold

otherwise would require us to re-weigh conflicting evidence and the ALJ’s

credibility determinations.    We therefore agree with the Commission that the

ALJ’s decision was supported by substantial evidence.




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                                IV

We affirm the Commission’s decision and deny Warrior’s petition.

AFFIRMED.




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