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

 
MADISON BRANCH MANAGEMENT
June 12, 1995
WEVA 93-218-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                      WASHINGTON,  D.C.   20006


                            June 12, 1995

MADISON BRANCH MANAGEMENT          : Contest Proceedings
                                   :
            v.                     : Docket Nos. WEVA 93-218-R
                                   :             WEVA 93-219-R
SECRETARY OF LABOR,                :             WEVA 93-220-R
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
                                   :
SECRETARY OF LABOR,                : Civil Penalty Proceedings
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            : Docket Nos. WEVA 93-373
                                   :             WEVA 93-412
            v.                     :
                                   :
MADISON BRANCH MANAGEMENT          :
                                   :
                                   :
SECRETARY OF LABOR,                : Civil Penalty Proceeding
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            : Docket No.  WEVA 93-415
                                   :
            v.                     :
                                   :
PROTECTIVE SECURITY SERVICES AND   :
  INVESTIGATIONS, INC.             :


BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners


                               DECISION

BY:  Jordan, Chairman and Marks, Commissioner

     These consolidated contest and civil penalty proceedings
arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C.  801 et seq. (1988) ("Mine Act" or "Act").  On
September 16, 1994, Madison Branch Management ("Madison")
petitioned the Commission for interlocutory review of
interlocutory orders issued by Administrative Law Judge
Jerold Feldman.  See Commission Procedural Rule
76(a)(1)(ii), 29 C.F.R.  2700.76(a)(1)(ii).  Madison
also requested suspension of the hearing scheduled before
the judge.  The Secretary of Labor ("Secretary") filed a
statement in support of Madison's petition.  By order
dated September 20, 1994, the Commission granted the
petition, suspended briefing, and stayed the hearing.

     In his orders, Judge Feldman, in effect, denied motions by
the Secretary to dispose of these cases pursuant to a
settlement agreement reached by the parties.  The judge
based his determinations on his concern that additional
abatement measures beyond those required by the
Secretary might be necessary to remove the safety risk
posed by the violations.  We view the instant petition as
one seeking review of these interlocutory orders taken as
a whole.  For the reasons that follow, the Commission vacates
the orders and remands the issue of whether the
settlement agreement should be approved.[1]

                                 I.

                         Factual Background

     These consolidated proceedings arose from two citations and
an imminent danger order issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA") to
Madison and from a citation and an imminent danger order
issued by MSHA to Protective Security Service and
Investigations, Inc. ("PSSI"), an independent contractor that
provided security services at Madison's Job No. 3 mine.
MSHA issued the citations following the death on March
1, 1993, of Allen Garrett, a  security guard employed by
PSSI, who was asphyxiated in his vehicle on mine property.
An MSHA investigation determined that the vehicle's
damaged exhaust system, which permitted excessive amounts of
carbon monoxide to enter the cab, was the proximate cause
of the fatality.

     Citation Nos. 3976644 and 3976646 issued to Madison and
PSSI, respectively, pursuant to section 104(a) of the Mine
Act, 30 U.S.C.  814(a), alleged that PSSI operated the
vehicle in an unsafe condition on mine property in violation
of 30 C.F.R.  77.404(a).[2] The inspector designated the
violation significant and substantial.[3]  The Secretary
proposed civil penalties of $2,000 against Madison and
$3,000 against PSSI.  The inspector further determined
that the vehicle posed an imminent danger to employees
working at Job No. 3 and, accordingly, pursuant to
section 107(a) of the Act, 30 U.S.C.  817(a), issued Order
Nos. 3976643 and 3976645 requiring its removal from
mine property.

     The citations are basically identical and state:

          The Ford Bronco II Serial # IFMBU14T7GUA67264
          being operated on the surface mine property
          was not being maintained in a safe operating
          condition in that the exhaust system was
          damaged and leaking carbon monoxide at (3)
          locations.

          This was a contributing factor which resulted
          in a fatal injury.

          This citation is issued in conjunction with
          107A Order No. 3976643 therefore no abatement
          time is set.

     In Citation No. 3976647 issued to Madison, MSHA also alleged
a violation of 30 C.F.R.  48.31(a)[4] for failure to provide
hazard training to Garrett before he began working at the mine.
The Secretary proposed a civil penalty of $88 for this violation.

                               II.

                      Procedural Background

     On March 31, 1994, the Secretary filed motions with the
judge to approve settlements in these cases.  The settlements
would have required payment of $550 of the $2,088 in proposed
penalties against Madison, and $1,000 of the $3,000 in proposed
penalties against PSSI.  By order dated April 7, 1994, Judge
Feldman denied the Secretary's motions on the grounds that the
Secretary had not shown "adequate mitigating circumstances to
justify the significant reductions in the proposed penalties."

     On April 8, 1994, the Secretary filed "Amended Motions to
Approve Settlement," which provided that Madison and PSSI would
pay in full the penalties proposed by the Secretary.[5]  The
proposed settlement also required that PSSI inspect the exhaust
systems of security employees' vehicles at least once every 90
days and that PSSI maintain and, upon request, produce to MSHA
documentation of such inspections.

     The judge thereafter issued an order requiring Madison and
PSSI to provide additional information.  He ordered the Secretary
to explain, inter alia, why the proposed inspection program would
be adequate to abate "the hazard associated with exposure to
carbon monoxide poisoning."  Order Requesting Clarification at 3.
The judge reserved ruling on the motions pending review of the
requested information.  On May 16, 1994, the parties filed a
Joint Response to Order Requesting Clarification.

     On June 8, 1994, the judge denied the motions to approve the
settlement on the grounds that, in order to determine the
appropriate civil penalties, disputed facts concerning the
adequacy of the proposed vehicle inspection program had to be
resolved.  Order Denying Motions for Approval of Settlements,
Prehearing Order and Notice of Hearing ("June 8th Order").

     The judge scheduled the matter for hearing and ordered the
Secretary to call as a witness the Chief Medical Examiner of the
West Virginia Department of Health and Human Services to testify
to:

          the circumstances surrounding the decedent's
          death and his expert opinions concerning the
          health hazards associated with the short-term
          and continued long-term exposure to exhaust
          fumes and/or carbon monoxide poisoning.

June 8th Order at 6.  The Secretary was also directed to call:

          a minimum of two qualified safety and health
          experts employed by the Occupational Safety
          and Health Administration (OSHA) . . . to
          testify whether remaining in a stationary
          vehicle for prolonged periods with the engine
          and heater running is a "recognized hazard"
          that is prohibited by Section 5(a)(1) or
          Section 5(a)(2) of the Occupational Safety
          and Health Act of 1970, 29 U.S.C.  654(a)(1)
          and (a)(2).

Id.  The judge further ordered the Secretary to call "[a]
licensed qualified automobile mechanic" to testify about "the
procedures and requisite qualifications for performing an
adequate inspection of a motor vehicle's exhaust system. . . ."
Id.

     On July 19, 1994, the Secretary submitted a witness list.
He stated that he did not intend to call as witnesses the
individuals identified in the June 8th Order and that the parties
intended to submit a joint motion for summary decision.  The
judge construed the latter statement to be a joint motion for
summary decision, which he denied on July 22, 1994.  Order
Denying Joint Motion for Summary Decision ("July 22nd Order").
In his order, the judge identified what he described as disputed
material facts relating to the adequacy of the proposed
inspection program to remove hazards to security guards posed by
carbon monoxide poisoning.  Id. at 4.  The judge advised the
parties of his intention to call the Chief Medical Examiner as a
"court" witness.   Id. at 4-5.

     The Secretary filed a "Motion for Summary Judgment" on
August 25, 1994.  He contended that the undisputed facts
established the violations alleged in the citations as well as
the statutory criteria to determine an appropriate penalty.  S.
Mot. for Summ. J. at 7-11.  He noted respondents' good faith
attempts to achieve rapid compliance.  Id. at 12.  The Secretary
argued that the five issues identified by the judge in the July
22nd Order were not properly before him.  Id. at 15-18.  The
Secretary requested by letter that, in the event his motion was
denied, the judge certify the denial to the Commission pursuant
to Commission Rule 76(a)(1)(i).  Madison supported by letter the
Secretary's motion.

     The judge denied the Secretary's motion on August 29, 1994.
Order Denying the Secretary's Motion for Summary Judgment
("August 29th Order").  The judge ruled that, in order to
determine the appropriateness of the proposed civil penalties, it
was necessary to determine whether the hazard training and the
vehicle inspection program were adequate to eliminate the danger
of carbon monoxide poisoning to security guards who remain in
their vehicles for long periods seeking heat and shelter.  August
29th Order at 2.  The judge also refused to certify to the
Commission for interlocutory ruling either his July 22nd or
August 29th order as requested by Madison and the Secretary,
respectively.  The instant petition for interlocutory review
followed.

                              III.

                           Disposition

     The issue before us is whether the judge properly denied the
parties' motions to approve settlement.[6]  In the judge's view,
unresolved factual issues concerning the adequacy of abatement
precluded his approval of the settlement.

     Settlements are committed to the "sound discretion" of the
Commission and its judges.  See, e.g., Medusa Cement Co., 12
FMSHRC 1913, 1914 (October 1990).  Although Commission judges are
not "bound to endorse all proposed settlements," their rejections
of settlements, as well as approvals, must "be based on
principled reasons."  Knox County Stone Co., 3 FMSHRC 2478, 2480
(November 1981).  On review, the Commission will not disturb a
judge's approval or rejection of a settlement if it is supported
by the record, is consistent with the six statutory criteria
specified in section 110(i) of the Act for the assessment of
civil penalties, and is not otherwise improper.  Id.  In
reviewing such cases, "abuses of discretion or plain errors are
not immune from reversal."  Id.

     In rejecting the parties' settlement, the judge focused on
Section 110(i) of the Mine Act, 30 U.S.C.  820(i), which sets
forth six criteria for determining the appropriateness of a civil
penalty.  The judge stated that "demonstrated good faith . . . in
attempting to achieve rapid compliance," the sixth criterion,
involved "a factual question that must be resolved  through the
testimony of expert witnesses in the hearing process."  August
29th Order at 2.  He identified as the central issue:

          [W]hether the respondents have adequately
          removed the risk of carbon monoxide poisoning
          through hazard training and vehicle
          maintenance, to security personnel who
          continue to use stationary vehicles for
          prolonged periods of time with no alternative
          means of warmth and shelter.[7]

Id.

     The scope of abatement is determined by the underlying
citation and by the requirements of the statutory provision,
standard or regulation alleged to have been violated.  See Mid-
Continent Resources, Inc., 11 FMSHRC 505, 509-11 (April 1989).
In determining whether the factual issues set forth by the judge
were material to his consideration of whether the operator had
demonstrated good faith in attempting to achieve rapid
compliance, we examine the scope of the citations and the actions
required for abatement.

     The citations are narrowly drawn.  They do not allege a
pattern or practice of shoddy vehicle maintenance or a general
failure by Madison to provide hazard training to its miners.
Rather, they address a particular defective vehicle that
contributed to the fatality and the failure to train security
guard Garrett.   The regulations at issue also impose specific
requirements.  The Commission has held that section 77.404(a):

          imposes two duties upon an operator:  (1) to
          maintain machinery and equipment in safe
          operating condition, and (2) to remove unsafe
          equipment from service.  Derogation of either
          duty violates the regulation.

Peabody Coal Co., 1 FMSHRC 1494, 1495 (October 1979).  This
standard does not require unsafe equipment to be repaired so long
as it is immediately removed from service.  See Alabama By-
Products Corp., 4 FMSHRC 2128, 2130 (December 1982) ("[O]nce
unsafe equipment is removed from service abatement is
completed.") (construing identical language in section
75.1725(a)).  Section 48.31(a) is also specific, requiring
operators to provide training to individuals before they begin
working at a mine.  Abatement is completed when the affected
miners are trained.   See Secretary of Labor v. Western Fuels-
Utah, Inc., 900 F.2d 318, 319-20 (D.C. Cir. 1990) (operator
abated violation of section 48.7 by task training affected
employee).

     In the instant case, the Secretary determined that
respondents abated the unsafe equipment violation when they
removed the defective vehicle from service.  See Alabama By-
Products, 4 FMSHRC at 2130.  Likewise, by citing only the failure
to train a particular employee, the Secretary did not trigger a
broad duty of abatement with respect to that violation.  Thus,
the issue identified by the judge in the August 29th Order,
"whether the respondents have adequately removed the risk of
carbon monoxide poisoning through hazard training and vehicle
maintenance," is immaterial to the issue of whether the
respondents demonstrated good faith in attempting to abate the
narrow violations charged in this particular instance.[8]
Accordingly, we conclude that the judge erred to the extent that
he denied the settlement motions because of a determination that
the parties had failed to provide facts demonstrating the good
faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.  We therefore
vacate the judge's orders that effectively disapproved the
proposed settlement.

                              IV.

                            Remand

     We remand for the judge to reconsider the settlement motions
without recourse to the erroneous abatement analysis discussed
above.  The general principles governing a judge's disposition of
a proposed settlement are well established.   Section 110(k) of
the Act provides that no contested proposed penalty "shall be
compromised, mitigated, or settled except with the approval of
the Commission."  30 U.S.C.  820(k).  See also Commission
Procedural Rule 31, 29 C.F.R.  2700.31.  Section 110(k) charges
the Commission and its judges with the duty "to protect the
public interest by ensuring that all settlements of contested
penalties are consistent with the . . . Act's objectives."  Knox
County, 3 FMSHRC at 2479.  The judge shall review the adequacy of
the penalties proposed to settle this matter in light of the
other five statutory penalty criteria, which he did not discuss
in his prior orders.  In that regard, of course, he is not bound
by the parties' assertions concerning these criteria.  Knox
County, 3 FMSHRC at 2479-81. Cf. Sellersburg Stone Co., 5 FMSHRC
287, 293-94 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).

     Although the vehicle inspection program that the operator
proposes to adopt as part of  the settlement is not relevant to a
determination of whether this operator "exercised good faith in
achieving compliance after notification of a violation," we do
not imply that the program's efficacy cannot be a factor in the
judge's determination of whether to approve or reject the
proposed settlement.  In determining whether to approve a
proposed settlement a judge must consider, inter alia, whether
the amount proposed will accomplish the underlying purpose of a
civil penalty -- to encourage and induce compliance with the Mine
Act and its standards.  Co-op Mining Co., 2 FMSHRC 3475, 3475-76
(December 1980), citing S. Rep. 41, reprinted in Legis. Hist.
629.  See also Southern Ohio Coal Co., 4 FMSHRC 1459, 1464
(August 1982); S. Rep. 42-45, reprinted in Legis. Hist. 630-33.
The "affirmative duty" that section 110(k) places on the
Commission and its judges to "oversee settlements," Co-op Mining,
2 FMSHRC at 3475-76, necessarily requires the judge to accord due
consideration to the entirety of the proposed settlement package,
including both its monetary and non-monetary aspects.

     The requirement that a judge consider all elements of a
settlement presented to him for approval is consistent with the
settled principle that, in considering whether to approve a
proposed settlement, a judge must determine whether it is "fair,
adequate and reasonable."  Young v. Katz, 447 F.2d 431, 433 (5th
Cir. 1971).  Accord, United States v. Seymour Recycling Corp.,
554 F. Supp. 1334, 1337 (S.D. Ind. 1982); see also, United States
v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1426 (6th Cir.
1991) (settlement should be reviewed for "fairness,
reasonableness and consistency with the statute"); United States
v. City of Jackson, Mississippi, 519 F.2d 1147, 1151 (5th Cir.
1975) (judge must assure himself that the settlement's terms "are
not unlawful, unreasonable or inequitable"); Neuwirth v. Allen,
338 F.2d 2, 3 (2d Cir. 1964) (judge correctly determined that
"the settlement was fair").  These inquiries are bottomed on a
concern that the settlement "adequately protects the public
interest."  United States v. Seymour Recycling, 554 F. Supp. at
1337; see also United States v. Ketchikan Pulp Co., 430 F. Supp.
83, 86 (D. Alaska 1977) (judge should determine that settlement
"adequately protects the public interest and is in accord with
the dictates of Congress").  In assessing the fairness of the
settlement and whether it is consistent with the public interest,
a judge must examine "all
relief . . . , not just the [monetary] provisions of the
settlement . . . ."  Luevano v. Campbell, 93 F.R.D. 68, 86
(D.D.C. 1981) (emphasis supplied); see also, United States v.
Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 864 (5th Cir.
1975) (monetary relief must be viewed in light of other relief
provided in settlement), cert. denied sub nom. Harris v.
Allegheny-Ludlum Industries, Inc., 425 U.S. 944 (1976).

     Our dissenting colleagues err in concluding that the Mine
Act "clearly" proscribes Commission judges from considering non-
monetary settlement provisions presented to them by the parties
for approval.  Slip op. at 13.  In construing the Mine Act, we
are guided by the principle that "the primary dispositive source
of statutory construction is the wording of the statute itself."
Association of Bituminous Contractors v. Andrus, 581 F.2d 853,
861 (D.C. Cir. 1978).  Section 110(k) of the Act, which governs
settlements, does not contain language restricting in any way the
scope of the Commission's inquiry in reviewing them.  Had
Congress desired to depart from the law governing the scope of
review of settlements, it could easily have inserted in section
110(k) terms limiting the scope of the Commission's review of
settlements.  It did not do so, and the Commission is without
authority to insert such terms itself.

     The parties have made the vehicle inspection program part of
the settlement package and they relied on its inclusion in
arguing to the judge that the penalties proposed were consistent
with the statutory criteria and should be approved.  S. Mot. to
Approve Set. at 3-4.  It is appropriate for the judge to consider
the weight to be given to each of the statutory penalty criteria
in light of the planned inspection program's contribution to
compliance.  To the extent the parties are unsuccessful in
persuading the judge of the efficacy of the inspection program as
currently agreed to, the judge need not accord the program
significance in his evaluation of the penalty proposed in the
settlement.  If the judge disagrees with the proposed penalties,
he is free to reject the settlement and direct the matter for
hearing.  Knox County, 3 FMSHRC at 2481-82.  Alternatively, since
the parties couched their renewed settlement approval motion in
terms of a motion for summary judgment (see n.5, supra), the
judge may examine the record and, if there are no factual
disputes relating to liability and penalty assessment, issue a
decision based on the record.  See Knox County, 3 FMSHRC at 2481-
82 & n.5.  Rejection of the current settlement proposal would be
without prejudice to the parties' resubmission of a settlement
package tailored to meet the judge's objections.

                               V.

                           Conclusion

     For the foregoing reasons, we vacate the judge's orders
denying the motions for summary decision and the amended motions
for approval of settlement, and remand for further proceedings
consistent with this decision.

                              ________________________________
                              Mary Lu Jordan, Chairman

                              ________________________________
                              Marc Lincoln Marks, Commissioner


**FOOTNOTES**

     [1]:  All Commissioners vote to overturn the judge's
determination that the settlement motion should be denied
because, in his view, there exists a genuine factual issue, i.e.
the efficacy of the vehicle inspection program, concerning
whether respondents abated the violations.  Order dated August
29, 1994, at 2.  The Commissioners agree that this issue is not
relevant to whether the respondents demonstrated good faith in
attempting to achieve rapid compliance, the sixth penalty
criterion.  Chairman Jordan and Commissioner Marks vote to vacate
the interlocutory orders, remand the question of approving the
settlement, and permit the judge to consider non-monetary factors
in ruling on the motion to approve the settlement.  Commissioners
Doyle and Holen disagree that non-monetary factors are
appropriate considerations and conclude that a remand is
unnecessary.  They would approve the proposed settlement.  In
Wyoming Fuel Co., 16 FMSHRC 1618, 1619-20 n. 3 (August 1994), the
Commission determined that, in the event of a tie vote, the vote
of Commissioners closest in effect to the judge's decision is the
Commission's disposition.  The vote of Chairman Jordan and
Commissioner Marks to remand this matter to the judge is closest
in effect to the judge's decision and is therefore the
Commission's disposition.

     [2]:  Section 77.404(a) provides:

               Mobile and stationary equipment and
          machinery shall be maintained in safe
          operating condition and machinery . . . in
          unsafe condition shall be removed from
          service immediately.

     [3]:  The significant and substantial terminology
is taken from section 104(d)(1) of the Act, 30 U.S.C.  814(d)(1),
which distinguishes as more serious in nature any violation that
"could significantly and substantially contribute to the cause and
effect of a . . .  mine safety or health hazard . . . ."

     [4]:  Section 48.31(a) provides in part:

               Operators shall provide to . . . miners
          . . . a training program before such miners
          commence their work duties.

     [5]:  On May 16, 1994, the Secretary filed a "Second Amended
Motion to Approve Settlements" ("S. Mot. to Approve Set."), which
consolidated the two earlier amended motions.

     [6]:  In his Motion for Summary Judgment, the Secretary 
requested the judge to "memorialize" in an order the provisions of
the settlement proposal, in particular the vehicle inspection
program.  S. Mot. for Summ. J. at 14.  Accordingly, we construe 
the Secretary's Motion for Summary Judgment as a motion to approve
the settlement agreement.

     [7]:    The August 29th Order incorporates by
          reference the July 22nd Order, which listed
          the following five factual inquiries that the
          judge stated were "unresolved issues of
          material fact":

               1.  The nature of carbon monoxide
          intoxication and the correlation between the
          level of toxicity and the period of exposure;

               2.  Given the characteristics of carbon
          monoxide, whether the risk of carbon monoxide
          intoxication to individuals who seek warmth
          and shelter in stationary vehicles for
          extended periods of time can be effectively
          alleviated by the methods proposed by the
          respondents;

               3.  Whether remaining in a stationary
          vehicle for prolonged periods with the engine
          and heater running is a "recognized hazard"
          that is prohibited by . . . the Occupational
          Safety and Health Act of 1970 . . . ;

               4.  The qualifications of the individual
          assigned by [PSSI] to inspect employee
          vehicle exhaust systems and the methods of
          such inspection; and

               5.  The requisite qualifications,
          equipment and procedures necessary for
          performing an adequate vehicle exhaust system
          inspection.

July 22nd Order at 4.

     [8]:  We do not suggest that the duty to abate is
necessarily always narrow in scope.  The nature of a given
violation or the regulatory or statutory provision violated may
lead the Secretary to impose broad abatement duties.  In the
present case, for example, the Secretary issued imminent danger
orders in connection with the unsafe equipment citations.  In
discussing the Mine Act's imminent danger provision, the Senate
drafters stressed the importance of adequately abating such
hazards:

          If miners are to receive the continuing
          protection that Congress intends inspectors
          and operators must look to the underlying
          conditions and practices causing an imminent
          danger.  Section 10[7](a) thus requires the
          operator to correct the root causes as well
          as the symptoms of mine health and safety
          problems which gave rise to the order.

S. Rep. No. 181, 95th Cong., 1st Sess. 37 (1977) ("S. Rep."),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 625 (1978)
("Legis. Hist.").  Thus, in the circumstances presented here, the
Secretary had the authority to include broader abatement duties
than he actually required.