<DOC>
[DOCID: f:va9621.wais]

 
EASTERN RIDGE LIME COMPANY, L.P.
April 22, 1999
VA 96-21-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006

                         April 22, 1999

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     :  Docket No. VA 96-21-M
                                 :
                                 :
EASTERN RIDGE LIME COMPANY, L.P. :

BEFORE: Jordan, Chairman; and Marks, Riley, Verheggen, and
        Beatty, Commissioners

                            DECISION

BY THE COMMISSION:

     This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq. 
(1994) ("Mine Act" or "Act"), involves citations issued by the 
Department of Labor's Mine Safety and Health Administration 
("MSHA") against Eastern Ridge Lime Company, L.P. ("Eastern 
Ridge").  Administrative Law Judge Avram Weisberger concluded 
that Eastern Ridge violated 30 C.F.R.  57.3360[1] and 
57.3201[2] and that both violations were significant and
substantial ("S&S") and resulted from Eastern Ridge's 
unwarrantable failure. 19 FMSHRC 398 (Feb. 1997) (ALJ). The 
judge assessed penalties totaling $85,000.  Id. at 407, 409, 
410.  The Commission denied Eastern Ridge's petition for
review. Eastern Ridge appealed to the United States Court of 
Appeals for the Fourth Circuit, which affirmed in part and 
vacated and remanded in part the Commission's decision.  
Eastern Ridge Lime, L.P. v. FMSHRC, 141 F.3d 1158 (table),
1998 WL 169213 (4th Cir. 1998).

     By order dated July 2, 1998, the Commission remanded 
the case to the administrative law judge for further 
consideration consistent with the court's decision.  20 
FMSHRC 1333 (Dec. 1998).  On remand, the judge reiterated 
his initial findings and again imposed penalties totaling
$85,000.  20 FMSHRC 758, 758 (July 1998) (ALJ).  Eastern 
Ridge appealed, and the Commission directed review.  For 
the reasons that follow, we vacate the judge's decision 
and remand for further consideration.

                               I.

                Factual and Procedural Background

     A. Initial Proceedings before the Commission

     Eastern Ridge operates an underground limestone mine in
Ripplemead, Virginia.  19 FMSHRC at 398.  Limestone is extracted
by the random room and pillar mining method.  Id. at 399.  By
this process, rooms are created by blasting and removing the
loose rock.  1998 WL 169213 at 1.  Pillars are left in the rooms
to provide roof support.  Id.  The tunnels and rooms are not set
out in grid fashion because geological conditions at the mine are
inconsistent.  Tr. 1168.

     Beginning in 1993, Eastern Ridge made several attempts to
mine in the 200 entry section that had to be stopped because of
poor roof conditions.  19 FMSHRC at 399-400.  In December 1993,
Eastern Ridge attempted to advance the 204E section.  Id. at 399.
However, mining in section 204E ceased after scalers working in
the section[3] concluded that the roof was unsound and told
Eastern Ridge management that it was unsafe to work in the
section.  Id. at 399-400, 404.

      In May or June 1994, Eastern Ridge returned to the 204E
section.  Id. at 400.  Scalers observed that the top of the
heading was checkered with wide mud seams.  Scaling could not be
completed due to unsafe ground conditions.  Id. at 400.  Mine
management was advised that the top was leaking mud, and the
section was condemned.  Id. at 404.  After the 204E section was
condemned, in late June or early July 1994, Eastern Ridge began
development of the 11S section, which was to the right of the
204E heading.  Id. at 400.  Eastern Ridge supervisor Barry Snider
marked the opening for the 11S heading on the right rib of the
204E section, about 15 feet away from its face.  Id. at 404.  The
right rib of the 204E section was to form the left rib of the new
11S section.  Tr.  219, 224-25.

     From July 21 through July 24, 1994, several miners observed
seams in the 204E/11S sections.  19 FMSHRC at 401-02.  On July
25, driller Milton Conley showed Snider the seam encircling the
204E section and told him that there was no support for the roof.
Id. at 402.  After the conversation, Snider instructed driller
Jeffrey Morgan to bring the jumbo drill to scale down loose rock
in the roof near the intersection of the right rib of section
204E and the left rib of section 11S.  Id.  Morgan extended the
boom of the drill 40 feet out in front of the cab in which he was
sitting.  Id.  Snider was standing approximately 15 to 20 feet to
the left and in front of the cab.  Id.  Morgan placed the drill
bit on the rock and allowed the drill to vibrate or "rattle" the
rock in an effort to scale it down.  As Morgan began to do so,
the entire roof in the 204E and 11S sections collapsed burying
Snider and partially crushing the drill cab in which Morgan was
sitting.  Tr. 989-90.  As a result of the roof collapse, Snider
was killed and Morgan was seriously injured.  19 FMSHRC at 402

     Following an investigation, MSHA issued citations charging
Eastern Ridge with violating section 57.3360, which requires
ground support when ground conditions indicate that it is
necessary, and section 57.3201, which requires that scaling shall
be performed from a location which will not expose persons to
injury from falling materials.  1998 WL 169213 at 1.  Both
violations were designated S&S, and were attributed to Eastern
Ridge's unwarrantable failure.  Gov't Exs. 7-8.

     Eastern Ridge contested the proposed penalties, and a
hearing was held before an administrative law judge.  The judge
concluded that Eastern Ridge violated section 57.3360 when it
failed to install ground support, notwithstanding repeated
warnings concerning conditions in the 204E/11S sections.  19
FMSHRC at 403-05.  The judge credited the opinion of MSHA's
expert witness, Joseph Cybulski, that conditions in the 204E/11S
area prior to the fatal roof fall indicated that ground support
was necessary.  Id. at 404-05.  In discrediting Eastern Ridge's
expert, Jack Parker, who testified that ground support was not
necessary, the judge noted that Parker's theory of the cause of
the roof fall was not the issue before him; rather, the judge
found that Parker did not dispute miner testimony concerning the
conditions in sections 204E and 11S, noting in particular that
scaler/blaster Marvin Wright opined that the pillar between the
section 204E face and the 11S left rib was too small.  Id.
Therefore, the judge concluded that the record established that
ground support was necessary.  Id.  He also affirmed the
unwarrantable failure designation of the citation in light of the
repeated concerns that miners had expressed to Snider.  Id. at
407.  In addressing the designation of the violation as S&S, the
judge noted that Eastern Ridge's failure to provide ground
support contributed to the hazard of roof fall.  Id. at 406.  The
judge further concluded that, "considering the fact that a roof
fall did occur in the area causing a fatality and seriously
injuring another miner," the third and fourth elements of Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), had been established.  Id.
at 406-07.  In assessing a penalty, the judge noted that the
gravity of the violation was high, as it contributed to a fatal
roof fall.  Further, he found the level of Eastern Ridge's
negligence was aggravated.  Id. at 407.  Taking into account
remaining section 110(i) penalty criteria, the judge imposed a
$50,000 penalty.  Id.

     With regard to the citation charging a violation of section
57.3201, the judge relied on  record evidence establishing that,
prior to the accident, conditions indicated the need for ground
support in the 240E/11S area, and that Morgan was exposed to the
hazard of a roof fall even though he was located 40 feet from the
rock that he was rattling.  Id. at 408.  Further, the judge held
that the cab in which Morgan was sitting did not provide
protection from the roof fall.  Id.  The judge also concluded
that the violation occurred as a result of the operator's
unwarrantable failure because management was aware that scaling
was being performed in an area with no roof support; indeed, just
prior to the roof fall a miner had pointed out the circular seam
in the roof to Snider.  Id.  Finally, in addressing the S&S
designation, the judge relied on the ground conditions indicating
the need for support and that scaling was being performed in an
area that had no ground support.  Id.  Noting that Eastern
Ridge's negligence was aggravated and "the fact that the
violation . . . contributed to a fatality," the judge imposed a
penalty of $35,000 for the second violation.[4]  Id. at 409.  The
Commission thereafter denied a petition for discretionary review
filed by Eastern Ridge.

     B.   The Fourth Circuit's Decision

     Following the Commission's denial of review, Eastern Ridge
filed a petition for review in the Fourth Circuit, which affirmed
in part and vacated and remanded in part the Commission's
decision.  The court upheld the findings of violation (1998 WL
169213 at 2-3), but on a 2-1 vote concluded that the S&S
determinations were incorrectly based on factual findings which
the judge did not make.  In granting the petition for review in
part and remanding the case, the court majority stated:

               In the case of the  57.3360 violation,
          the ALJ appropriately found the first two
          Mathies Coal prongs satisfied, holding that
          "the essence of the violation, i.e., failure
          to provide ground support, contributed to the
          hazard of a roof fall."  In making these
          findings on the third and fourth prongs,
          however, the ALJ considered the "combination
          of ground conditions . . . and . . . the fact
          that a roof fall did occur in the area
          causing a fatality and seriously injuring
          another miner."  (Emphasis added).  The ALJ's
          usage of the roof fall as a relevant event is
          unsupported.  Because the ALJ never found
          whether the failure to provide roof support
          was the cause of the accident, [his] holding
          that the accident indicated that Eastern
          Ridge "significantly and substantially"
          violated  57.3360 is a non sequitur.  In
          order to rely on such a finding, the ALJ
          would need to have found that the failure to
          provide ground support caused the accident;
          otherwise, the actual fact of a roof fall
          indicates nothing relevant about Eastern
          Ridge's actions.

               This logical error becomes most
          consequential in the ALJ's imposition of
          penalties.  In assessing a penalty for the 
          57.3360 violation, the ALJ noted that "the
          gravity of the violation was of a very high
          level as the violation contributed to a fatal
          roof fall."    (Emphasis added).  Similarly,
          in assessing a penalty under             
          57.3201, the ALJ considered "the fact that
          the violation herein contributed to a
          fatality."  (Emphasis added). . . . By
          relying on the fact that Eastern Ridge's
          actions contributed to the roof fall and the
          fatality in making [his] penalty assessments,
          the ALJ inappropriately took account of
          factors extrinsic to [his] own findings.

               For these reasons, we grant Eastern
          Ridge's petition for review and remand this
          case for further factfinding and analysis of
          the penalties to be assessed.  Our ruling
          should not, however, be understood to imply
          that causation must be found in every case.
          The Commission may impose penalties without
          any reference to whether a roof fall or
          fatality occurred.  But where an ALJ relies
          on the supposition that a mining company's
          failure to act was a contributing factor in a
          fatal roof fall, he must first find that the
          failure to act was actually a contributing
          factor.

Id. at 3-4.

     C.   Proceedings on Remand before the Commission

     On July 2, 1998, we issued an order remanding the case to
the judge.  On remand, the judge's entire findings and analysis
was as follows:

          I find that, in assessing a penalty, and
          evaluating the level of gravity of the cited
          violations, it is not necessary to make a
          specific finding of causation.  The high
          level of gravity is based on the fact that
          the violation contributed to a fatal roof
          fall.  Further, in evaluating a penalty, I
          place most weight on my finding that, for the
          reasons discussed in the original decision,
          the level of Respondent's negligence
          constituted aggravated conduct.
          Specifically, the record establishes that
          Respondent repeatedly ignored the warnings of
          its workers regarding observed unsafe
          conditions.  Accordingly, I reiterate my
          initial findings regarding the penalty to be
          assessed.

20 FMSHRC at 758.
                               II.

                           Disposition

     Eastern Ridge contends that by failing to make a finding 
of causation of the roof fall but, nevertheless, basing his 
S&S and unwarrantability determinations and enhanced civil
penalties on the conclusion that the violations contributed
to the roof fall, the judge repeated the same error
contained in his initial decision, thereby ignoring the
Fourth Circuit's remand instructions.  ER PDR at 3-4; ER Br.
at 16-17.  Eastern Ridge further argues that substantial
evidence does not support the judge's determination that its
failure to provide ground support was either S&S or due to
its unwarrantable failure.  Id. at 17-25.  Eastern Ridge
also asserts that substantial evidence does not support the
judge's finding that its failure to provide protection from
falling material to miners was S&S and due to its
unwarrantable failure.  Id. at 26-31.

     The Secretary contends that the determinations that the
violation of section 57.3201 (location for performing
scaling) was S&S and a result of the operator's
unwarrantable failure and that the violation of section
57.3360 (inadequate roof support) resulted from the
operator's unwarrantable failure, were briefed and argued
before the Fourth Circuit without reversal and are now the
law of the case.  S. Br. at 19-21.  She asserts that these
determinations were "implicitly affirmed" and, therefore,
the Commission cannot reconsider them.  Id. at 21-24.
Alternatively, the Secretary argues that those
determinations are supported by substantial evidence.  Id.
at 25-34, 36-39.  With regard to the S&S designation of
section 57.3360, the Secretary contends that the judge
failed to make a specific finding on remand, and therefore
the Commission must either decide the issue or remand it to
the judge for further analysis.  Id. at 34.  The Secretary
argues that she does not have to prove that the violation
caused the roof fall, but only that the violation was
reasonably likely to result in an injury-causing event.  Id.
at 35.  Finally, the Secretary asserts that in reviewing the
penalty on remand, the judge declined to make a finding that
the violation caused the roof fall but rather concluded the
violation contributed to the hazard of a roof fall.  Id. at
39-40.  The Secretary suggests that if the Commission
concludes that the judge did not follow the court's remand
instructions, it should remand the case to the judge.  Id.
at 40.

     "Law of the case rules have developed to maintain
consistency and avoid reconsideration of matters once
decided during the course of a single continuing lawsuit."
18 Wright, Miller & Cooper, Federal Practice and Procedure,
 4478 at 874 (2d ed. Supp. 1999).  "The `law of the case'
doctrine mandates, . . . , that where issues have been . . .
decided on appeal, the district court is obliged, on remand,
to follow the decision of the appellate court."  United
States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993).  The law
of the case applies to issues decided by implication, as
well as to matters decided explicitly.  Id.; Hanna Boys
Center v. Miller, 853 F.2d 682, 686 (9th Cir. 1988).

     We agree with the Secretary that the decision of the 
court of appeals established the law of the case and precludes 
us from reviewing the unwarrantable failure determinations 
of the section 57.3201 and 57.3360 violations. The
unwarrantable failure determinations were raised, briefed,
and argued to the court.  While the court did not
specifically discuss those issues in its decision, it
clearly addressed the underlying violations (19 WL 169213 at
2-3), the judge's S&S determinations (id. at 3), and his
imposition of penalties as to both violations (id. at 3-4).
Implicit in the court's decision, therefore, is affirmance
of the unwarrantable failure determinations it did not
explicitly address.  Therefore, we cannot review these
issues.[5]

     With regard to the judge's S&S determinations, it is
apparent from a careful reading of the court's decision that
the S&S determinations as to both violations[6] were sent
back to the judge because of inadequate factual findings,
mainly with respect to the third and fourth elements of the
S&S test set forth in Mathies Coal Co.[7]  While the court
majority saw those factual findings as most directly
impacting the level of penalties, those findings cannot be
revisited without addressing the S&S determinations that
provided the context in which the findings were initially
made.  Further, the Commission's remand decision states
explicitly that the court decision held that "the judge's
S&S determinations were inadequately supported because,
while the judge did not make a finding that the violations
caused the fatal accident, he relied on the contribution of
the violations to the accident in reaching his S&S
determination."  20 FMSHRC at 1133-34.  Thus, the
Commission's remand should have eliminated any confusion on
the scope of issues before the judge.[8]

     The judge's remand decision clearly does not address 
the issue of whether the violations of sections 57.3360 or
57.3201 were S&S.  Nor does it address the record facts
relevant to the judge's evaluation of the Mathies criteria
that led to the court's remand.  Further, in addressing the
penalties assessed for the violations, the judge repeated
virtually the same language that led the court majority to
vacate and remand his prior decision.  The court majority
stated:  "[T]he ALJ noted that `the gravity of the violation
was of a very high level as the violation contributed to a
fatal roof fall.'" 1998 WL 169213 at 3 (emphasis in
original).  In the remand decision, while the judge stated
that he was not making a finding of causation, he also
stated:  "The high level of gravity is based on the fact
that the violation contributed to a fatal roof fall."  20
FMSHRC at 758 (emphasis added).  We conclude that the judge
failed to conduct the additional "factfinding and analysis
of the penalties to be assessed" (1998 WL 169213 at 4) that
the Fourth Circuit required.  Accordingly, we vacate the
judge's decision and remand for further consideration.

     On remand, we direct the judge to state whether he is
relying on the failure to provide adequate ground support as
a cause of the accident and as support for his S&S and
penalty determinations and, if so, to indicate the basis in
the record for doing so.  We also remind the judge that he
does not have to find that the violation led to the ground
fall which caused a fatality in order to conclude that the
violation was S&S.  See Arch of Kentucky, 20 FMSHRC 1321,
1330 (Dec. 1998).

                               III.

                            Conclusion

     For the foregoing reasons, we vacate the judge's decision
and remand the S&S determinations and penalty assessments
for further consideration consistent with this decision.

                                   Mary Lu Jordan, Chairman

                                   Marc Lincoln Marks,
                                   Commissioner

                                   James C. Riley, Commissioner

                                   Theodore F. Verheggen,
                                   Commissioner

                                   Robert H. Beatty, Jr.,
                                   Commissioner

Distribution

Thomas B. Weaver, Esq.
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Square, Suite 2600
St. Louis, MO 63102

Robin A. Rosenbluth, Esq.
Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

**FOOTNOTES**

     [1]:   Section  57.3360 provides in pertinent part:  "Ground
support  shall  be  used   where  ground  conditions,  or  mining
experience in similar ground  conditions  in  the  mine, indicate
that it is necessary."

     [2]:   Section 57.3201 states:  "Scaling shall be  performed
from a location  which  will  not  expose  persons to injury from
falling material, or other protection from falling material shall
be provided."

     [3]:  Scaling is a process of removing  loose rock from roof
or walls, usually with a long metal bar, which  also  allows  the
scaler to determine whether the roof is sound.  1998 WL 169213 at
1.

     [4]:  The judge dismissed a third citation which alleged, in
essence,  that Eastern Ridge misused the jumbo drill by using the
drill bit to rattle rock.  Id. at 409-10.

     [5]:   Commission  Riley disagrees with the majority holding
that the circuit court's  decision  disposed of the unwarrantable
failure determinations.  He believes  the  court decision is much
too vague and ambiguous on the question of unwarrantability to be
held  up  as  the "law of the case."  Coupled with  what  he  now
regards as a less  than  precise remand order from the Commission
to the judge and a seriously  misguided decision on remand by the
judge, Commissioner Riley opines that we have the ingredients for
legal confusion, not good law.   He  believes  that to gloss over
this  issue,  merely  guarantees  protracted  litigation   of  an
important  question  in  this  case.   He  thinks it behooves the
Commission to resolve this issue here so as  not to leave it open
as another avenue of appeal.  Therefore, he would  remand  to the
judge   for   further  consideration  the  unwarrantable  failure
determinations,   along  with  the  S&S  determinations  and  the
assessment of penalties.   Commissioner  Verheggen  concurs  with
Commissioner  Riley in finding that the Fourth Circuit's decision
did   not  dispose   of   the   judge's   unwarrantable   failure
determination, and that this issue should also be remanded.

     [6]:   A  close  reading  of  the judge's decision on review
before the court indicates that he relied on the lack of adequate
ground  support  as  a consideration in  the  S&S  determinations
involving the violations  of  both  section 57.3360 (19 FMSHRC at
406-07) and section 57.3201 (id. at 408).

     [7]:  The S&S terminology is taken  from  section  104(d) of
the Mine Act, 30 U.S.C.               814(d), and refers to more
serious  violations.   A  violation  is  S&S  if,  based  on  the
particular  facts  surrounding  the  violation,  there  exists  a
reasonable  likelihood that the hazard contributed to will result
in an injury  or  illness  of  a  reasonably serious nature.  See
Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).  In
Mathies Coal Co., 6 FMSHRC 1 (Jan.  1984), the Commission further
explained:

               In order to establish  that  a violation
          of a mandatory safety standard is significant
          and  substantial  under National Gypsum,  the
          Secretary  of  Labor  must  prove:   (1)  the
          underlying violation  of  a  mandatory safety
          standard; (2) a discrete safety hazard - that
          is,   a   measure  of  danger  to  safety   -
          contributed  to  by  the  violation;    (3) a
          reasonable   likelihood   that   the   hazard
          contributed to will result  in an injury; and
          (4) a reasonable likelihood that  the  injury
          in  question  will be of a reasonably serious
          nature.

Id. at 3-4 (footnote omitted);  accord  Buck  Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin  Power,  Inc. v.
Secretary  of  Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).

     [8]:  Commissioner  Marks agrees that the S&S as well as the
penalty  issues be remanded  to  the  judge.   However,  for  the
reasons set  forth  in  his  concurring opinions in United States
Steel Mining Co., 18 FMSHRC 862,  868-75 (June 1996), and Buffalo
Crushed  Stone,  Inc.,  19 FMSHRC 231,  240-41  (Feb.  1997),  he
believes that the ambiguous  language of the Commission's Mathies
test, 6 FMSHRC at 3-4, should  be replaced with a clear test that
is consistent with Congressional intent.