comprehend Rushton's allegation of prejudice on the part of the Judge. In any event, the question of disqualification of a hearing officer is not properly before this Board.2

ORDER

WHEREFORE, in light of the foregoing and 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 application for reconsideration IS DENIED.

C. E. ROGERS, JR., Chairman.

DAVID DOANE, Member.

PITTSBURGH COAL COMPANY 2 IBMA 277

Decided October 5, 1973

Appeal by Pittsburgh Coal Company from a decision dated June 29, 1973, in Docket No. PITT 72-161, by Administrative Law Judge George H. Painter, whereby he granted the Bureau of Mines (MESA) motion to dismiss an application for order of withdrawal No. 1 GFM.

Affirmed.

Federal Coal Mine Health and Safety Act of 1969: Closure Orders: Imminent Danger

Presence of 1.5 volume per centum or more of methane supports issuance of section 104(a) Withdrawal Order.

APPEARANCES: Craig R. McKay, Esquire, Pittsburgh, Pennsylvania, Attorney for appellant, Pittsburgh Coal

2 43 CFR 4.27 (c).

Company; William H. O'Riordan, Trial Attorney for appellee, Mining Enforcement and Safety Administration (MESA), formerly U.S. Bureau of Mines.

INTERIOR BOARD OF MINE OPERATIONS APPEALS

DECISION

On this appeal, appellant contended, inter alia, that: "The Administrative Law Judge erred in holding as a matter of law that a concentration exceeding 1.5 volume per centum of methane as defined in section 303 (h) (2) of the Act1 per se warrants a finding of 'imminent danger.'" 2

In addition to the reasons given by the Administrative Law Judge in his decision the Board notes that in the section-by-section analysis of section 204 (h) (2), subsequently enacted as section 303 (h) (2) of the Federal Coal Mine Health and Safety Act of 1969, the report of the Senate Committee states as follows:

*** If the air contains 1.5 percent of methane, withdrawal of the miners by the operator or inspector, if he is present, is required *** Long experience has shown that the methane, when present is dangerous. The explosion range is between 5 and 15 percent. Once it reaches

1 Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742-804, 30 U.S.C. §§ 801960 (1970).

2 Oral argument was requested by appellant; however, due to the nature of the question presented and the thoroughness of the briefs filed by the parties, the Board has decided oral argument would serve no useful purpose.

3 Legislative History, Federal Coal Mine Health and Safety Act, Committee on Education and Labor, House of Representatives, 91st Cong., 2d Sess., 58-59 (1970).

1.5 percent it can accumulate rapidly. Thus, action must be taken promptly before it reaches 1.5 percent. (Italics added.)

In our view this expression of Congressional intent is sufficient to override the arguments advanced by the appellant and to sustain the Judge's decision on this point.

The Board's action in affirming the Administrative Law Judge renders it unnecessary, with one exception, to discuss the other contentions advanced by appellant in his brief. This remaining contention is whether the Administrative Law Judge erred in denying counsel for appellant the opportunity to crossexamine the inspector regarding his understanding of the term "imminent danger." Our review of the transcript reveals that the right to cross-examine was afforded appel

lant and that he availed himself of such right.

Having reviewed the record and considered the brief of the appellant and the response thereto by MESA and in light of the above, the Board concludes that the findings of fact, conclusion of Law, and decision of the Administrative Law Judge should be affirmed.*

ORDER

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

The Judge's decision follows at 2 IBMA 281, p. 656.

Statement of the Case

This proceeding was initiated by Pittsburgh Coal Company to review the above order of withdrawal pursuant to section 105 of the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 801 et seq. (1969).

The hearings on this matter took place at the Federal Building, Pittsburgh, Pennsylvania, on April 26, 1973. Petitioner was represented by Craig R. McKay, Esquire, of Pittsburgh, Pennsylvania. Respondent was represented by William H. O'Riordan, Esquire, Office of the Solicitor, Department of the Interior.

Issue

Is it within the authority of an inspector to issue a 104 (a) withdrawal order upon discovery of a methane pocket exceeding the statutory maximum as prescribed in section 303 (h) (2) of the Act? Summary of Evidence

During a preshift inspection in which Gerald F. Moody, an Inspector for the Bureau of Mines, accompanied Paul Ringer, a section foreman for petitioner, the existence of a pocket of methane gas was detected. at approximately 8:30 a.m. Both the

a

inspector and the foreman, the only witnesses in this proceeding, testified that the air contained in excess of 1.5 volume per centum of methane. A bottle sample taken by Inspector Moody contained approximately 1.82 percent of methane. Inspector Moody, according to his testimony, thereupon placed danger board at the loading head and orally issued a 104(a) withdrawal order affecting the entire 9 west face section of the mine. He remained at the site until approximately 10:30 a.m. when the methane level had been reduced to below the one percent level. At that time the sign was removed and the situation was described as abated. Paul Ringer had spent most of this time at the site directing his men in abating the condition. Of the nine man crew two were acting as 104 (d) personnel. The remaining men were apparently performing general maintenance work in the vicinity

of the 9 west face section that was subject to the withdrawal order.

Discussion

Under section 104 (a) an inspector "shall issue" a withdrawal order to clear designated mine areas if upon inspection a condition of imminent danger is found to exist. In similar. language the latter part of section 303 (h) (2) provides for a withdrawal of miners, though it does not express itself in terms of imminent danger. By requiring a withdrawal of miners upon the detection of a 1.5 volume per centum the Act seems

to be recognizing a condition of imminent danger.

As defined in section 3 (j) of the Act "imminent danger includes a condition which could reasonably be expected to cause death or serious physical harm before each condition *** can be abated." If Congress has determined by statute that a 1.5 volume per centum reading is sufficient to require the drastic action of withdrawal, then it must be because the situation was viewed as one of imminent danger. Congress in 303 (h) (2) has intentionally left no room for doubt or discretion in what it viewed as an imminent danger. Considering the nature of the gas, the perilous conditions created by it, and insignificant quantum of energy necessary to cause an ignition-there is a sufficient basis to characterize a 1.5 percent concentration as one of imminent danger.

The seriousness with which Con

gress viewed the methane problem can be seen by the 303 (h) (1) requirement of an initial preshift examination for the gas to be repeated at twenty minute intervals. thereafter. The deadly history of the gas in the last thirty years bears ample witness to the intent of Congress to reduce this major cause of death. It can reasonably be in

1 "Since January 1941, 1,142 miners have been killed and 965 have been injured in 683 underground coal mine ignitions or explosions which have been reported to the Bureau of Mines. These ignitions and explosions have been among the major causes of death and injury to coal miners." Legislative History, Federal Coal Mine Health and Safety Act, Committee on Education and Labor, House of Representatives, 91st Cong., 2d Sess., 25 (1970).

INTERIOR BOARD OF IN

DIAN APPEALS OPINION BY MR. WILSON

This matter comes before the Board on appeal from an Administrative Law Judge's denial of appellants' petition for rehearing concerning a claim allowed against the estate for labor and services.

Jennie Elsie Eli Johnson Wilson Beavert, hereinafter referred to as decedent, died intestate April 29, 1971. A hearing to determine heirs was held on January 21, 1972, by Administrative Law Judge Robert C. Snashall. Thereafter, on February 28, 1972, an order determining heirs was duly made and entered by the Judge.

The Judge, among other things, in said order allowed Columbus Beavert, hereinafter referred to as Appellee, $14,600 on a purported

claim for labor and services.

On April 17, 1972, Lauretta Olney Goudy, a Yakima tribal member but not an attorney at law, filed on behalf of the three heirs a letter with the Judge wherein a request was made for a rehearing on the matter of appellee's claim.

The Judge on May 10, 1972, advised Mrs. Goudy that he could not consider her letter of April 17, 1972, as a petition for rehearing for the reason that it did not meet the requirements of 43 CFR 4.241(a) (1972) and because she was not authorized by law to act in a representative capacity in the matter. See 43 CFR 1.3 (1972).

In the same letter Mrs. Goudy was further advised that the payment allowed to appellee was more in the nature of a compromise rather than a claim in a strict sense of 43 CFR § 4.250 and that the requirements of that section would not be applicable.

The letter of May 10, 1972, appears to have led to some confusion as to whether or not it was intended as a denial of a petition for rehearing.

In any event, the Judge on May 26, 1972, extended for 30 days the period for filing the petition for rehearing. Pursuant thereto, Lauretta Olney Goudy again on behalf of the "legal heirs" on July 6, 1972, filed a petition for rehearing with the Judge.

The petition for rehearing dated July 6, 1972, was denied by the Judge on July 24, 1972, in the following language:

At the outset it should be noted the purported petition wholly fails to meet the substantive requirements of applicable regulations (43 CFR 4.241); fails to identify the "legal heirs" in whose behalf it is purported to represent; and, the petitioner, Lauretta Olney Goudy, does not appear to be either an attorney at law nor a party in interest and therefore has no standing before this forum.

However, be that as it may, the purported petition insofar as I am able to understand its purported substantive provisons is an argument of the facts and appears to contain nothing of material import bearing upon the correctness of the Order Determining Heirs. Most of what petition alleges already is a matter of record in the proceedings either by documentation or as it appears in the transcript of testimony. The remaining