.
INDEPENDENCE COAL COMPANY, INC.
November 12, 1997
WEVA 97-130


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, Suite 1000
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                          November 12, 1997


SECRETARY OF LABOR,                :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :   Docket No. WEVA 97-130
               Petitioner          :     A.C. No. 46-08586-03506
                                   :
          v.                       :
                                   :
INDEPENDENCE COAL COMPANY,         :
  INC.,                            :
               Respondent          :   Twilight-Winifrede Mine


         DECISION DENYING MOTION FOR PARTIAL SUMMARY DECISION

Before:  Judge Melick

     Eleven  days before hearings scheduled in the captioned case
and pursuant to  Commission  Rule  67,  29  C.F.R.  2200.67, the
Secretary filed the instant motion for partial  summary decision.
In  her  motion  the  Secretary  argues,  in essence, that  since
imminent danger Order No. 4400658 became a  final  order  of  the
Commission  (because  it  had  not  been  challenged  pursuant to
Section  107(e)(1) of the Federal Mine Safety and Health  Act  of
1977, the  "Act")  it  was  equivalent  to  a final judgment on a
litigated  issue,  i.e., that the condition cited  in  the  order
constituted an "imminent  danger."  She further argues that since
the condition was an "imminent danger" the same condition charged
in  Citation  No.  4400659,  (at  issue  in  this  civil  penalty
proceeding),  therefore,  also presented  a  hazard  which  would
reasonably likely result in  a  serious injury.  The Secretary is
presumably relying upon either the  doctrine  of  res judicata or
collateral estoppel in seeking to prohibit the operator  from now
challenging whether an "imminent danger" (or a hazard which would
reasonably likely result in a serious injury) actually existed.

     The  same  issue  was  examined  in  a concurring opinion by
Commissioners Doyle and Holen, in Secretary  of  Labor v. Wyoming
Fuel  Company, n/k/a Basin Resources, Inc., 16 FMSHRC  1618,   at
1632-1633   (August   1994)   (Commissioners   Doyle  and  Holen,
concurring), I find the legal analysis therein to  be persuasive.
It is set forth, in relevant part, below:

          Section   107(e)(1)   of  the  Mine  Act  provides
     operators  with the opportunity  to  challenge  section
     107(a) imminent  danger  orders  within  30  days after
     issuance.   30  U.S.C.    817.   The  finality of such
     orders  is  not referenced in the Mine Act,  except  in
     section 111,  as a basis for compensation to miners who
     are idled as a  consequence.   30  U.S.C.    821.  The
     judge's  opinion  appears to be based on a theory  that
     the imminent danger  order,  as  a  final  order of the
     Commission,  is  equivalent  to a final judgment  on  a
     litigated   issue.    Under  this  theory,   Basin   is
     prohibited, presumably under the doctrine of either res
     judicata  or  collateral   estoppel,  from  challenging
     whether an imminent danger actually existed on June 25.
     We disagree that this is the effect of a final imminent
     danger order.

          The judge offers no legal  theory  or  other basis
     for his conclusion that the allegations set forth  in a
     final  imminent  danger  order  can  be used in another
     proceeding to irrebuttably establish those allegations.
     The  Mine  Act  and  Commission precedent  address  the
     finality  of  an imminent  danger  order  only  in  the
     context  of  compensation   proceedings  arising  under
     Section  111.   The  doctrines  of   res  judicata  and
     collateral  estoppel  would not preclude  challenge  to
     such a final order because  those doctrines require the
     claim  or  issue  to  have  been previously  litigated.
     Moreover, those doctrines have  "the  dual  purpose  of
     protecting litigants from the burden of relitigating an
     identical issue with the same party or his privy and of
     promoting   judicial  economy  by  preventing  needless
     litigation."   Parklane  Hosiery Co. v. Shore, 439 U.S.
     322, 326 (1979), citing Blonder-Tongue  Lab.,  Inc., v.
     University of Ill. Found, 402 U.S. 313, 328-329 (1971).

          Here, neither purpose would be served.  Presently,
     an  operator  has,  in  most  instances,  no  reason to
     contest an imminent danger order unless compensation is
     in  issue.   Penalties  are  not assessed in connection
     with  an  imminent  danger  order.    Nor  are  alleged
     violations giving rise to an imminent danger order part
     of the imminent danger order itself, but rather are set
     forth   in   other  citations  and  orders  issued   in
     connection with  the  dangerous  condition,  as was the
     case here.  Under the judge's logic, operators desiring
     to  avoid a per se finding of reasonable likelihood  of
     injury, the third element of the Commission's S&S test,
     would  need  to litigate each and every imminent danger
     order, irrespective  of  whether  compensation  were in
     issue.    Where  no  imminent  danger  was  found,  the
     reasonable  likelihood allegation, which could be based
     on  a  less dangerous  and  less  immediate  threat  to
     safety,   would  still  be  in  issue  and  subject  to
     litigation.

          To the  extent  our  colleague's  opinion suggests
     that  Ranger  Fuel  Corp., 12 FMSHRC 363 (March  1990),
     would support the judge's  conclusion, we believe it is
     in error.  Slip op. at 9.  Ranger is not relevant here.
     That case involved section 111  compensation  to miners
     arising  from  an  imminent  danger  withdrawal  order.
     Under  section 111, limited compensation is payable  to
     miners irrespective  of  the validity of the withdrawal
     order but the further compensation sought in Ranger was
     contingent upon the relevant  order  becoming  "final."
     30  U.S.C.    821;  12  FMSHRC  at  373.  The operator
     attempted to contest the validity of a  final  imminent
     danger  order  in the compensation proceeding although,
     under  section 111,  the  challenged  compensation  was
     contingent  only upon the order being final, not on the
     actual existence  of  an  imminent danger.  See U.S.C 
     821.   The Commission denied  Ranger's  challenge.   12
     FMSHRC at  373.   Here,  the  issue  is not whether the
     order is final but whether a final unlitigated imminent
     danger  order  can be used in a penalty  proceeding  to
     irrebuttably establish that an imminent danger actually
     existed.

     Within this legal  framework,  therefore,  final unlitigated
imminent danger Order No. 4400659 cannot be used  in a subsequent
penalty  proceeding, for a citation charging the same  condition,
to irrebuttably  establish  that the condition presented a hazard
which would reasonably likely  result in a serious injury or that
a  "significant  and  substantial"  violation  actually  existed.
Accordingly, this aspect  of  the  Secretary's motion for partial
summary decision must be denied as a  matter  of law.  Commission
Rule 67, 29 C.F.R.  2700.67.

     The Secretary also argues in her motion for  partial summary
decision  that  admissions  in the deposition testimony  of  mine
superintendent Christopher Sloan  that the cited condition was in
fact an "imminent danger" also constitutes  an  admission  of the
"existence of a hazard and that it is reasonably likely that this
hazard  could  contribute  to  a serious injury."  Presumably the
Secretary is relying upon the deposition testimony of Sloan cited
at page 9, indicated by the following colloquy:

     Q:   And would you say that it looked like what it does
          in these photographs?

     A:   [By Christopher Sloan] Yes.

     Q:   Would you consider this a dangerous situation?

     A:   Yes, I would.

The Secretary also cites Sloan's  deposition at page 16, in which
the following colloquy occurs:

     Q:   Do you agree that there was imminent danger there?

     A:   [By Christopher Sloan] Yes.

     Q:   You do?

     A:   As long  as trucks were trying to haul by it, yes.

     Q:   Would you also agree that  that  is  a significant
          and substantial violation?

     A:   What?

     Q:   The fact that there wasn't a berm on this road.

     A:   If trucks were hauling by it, yes, in  fact, there
          wasn't a - - the road was shut down.

     Finally, the Secretary quotes Sloan's deposition at page 24:

     Q:   When  you  say  it would be stupid, it would  be
          stupid for a truck  driver  to  drive  over it; is
          that what your are saying?

     A:   [By  Christopher  Sloan]  Yes,  if  I saw that,  I
          wouldn't go up.

    In its response, Independence Coal Company  Inc.,  states  as
follows:

          Review  of  Sloan's  testimony demonstrates that a
     considerable number of factual  and legal issues remain
     in  dispute,  and  thus  renders any  type  of  summary
     decision inappropriate.  First,  as  Sloan's deposition
     testimony indicates, a significant hazard was presented
     only if haul trucks were using the road.  Deposition at
     16.   Sloan  himself  stated  he  only  used  the  road
     occasionally (id. at 6), had no personal knowledge that
     the  trucks  were  using  the  road  (id.  at  7),  and
     indicates that the road might have been shut down  (id.
     at 16).  Consequently, the operator is not prepared  to
     concede that trucks were using the road at the relevant
     times,  and the Secretary must meet her burden of proof
     on this point.

          Second,  Sloan's deposition testimony highlights a
     point  the  Secretary   apparently   disregards:    the
     company's  right  to contest its responsibility for the
     road,  and  to argue  that  the  inspector  abused  his
     discretion in citing independence.  Id. at 16.

          Finally,  and  most importantly, Sloan's testimony
     reveals a fundamental  flaw in the Secretary's argument
     for summary decision:  the defect that so concerned the
     inspector is not the condition  that was cited and that
     the   Secretary   argues  forms  the  basis   for   the
     inspector's     "significant      and      substantial"
     determination.   Throughout  Sloan's  deposition,   the
     Secretary  sought  out  information regarding a slip in
     the road and efforts to repair  the slip.  However, the
     citation at issue alleges a violation  of  30  C.F.R. 
     77.1605(k), which requires the "(b)erms or guards shall
     be provided on the outer bank of elevated roadways."

          The  Secretary  pointed  out at footnote 3 of  her
     Motion for Partial Summary Decision  that,  in order to
     establish   that   a   violation   is  significant  and
     substantial,  the Secretary has the burden  of  proving
     "(2) a discrete safety hazard - - that is, a measure of
     danger to safety  - - contributed to by the violation .
     . . . "  Secretary's Motion at 4, n.3.  Emphasis added.
     Sloan's deposition  makes  clear  that  the hazard that
     concerned the inspector was posed, not so  much  by the
     lack of a berm or guard, but, allegedly, by the lack of
     a  few  feet  of  the  roadway itself.  Consequently, a
     significant factual question is presented as to whether
     the discrete safety hazard that concerned the inspector
     was contributed to by the condition that he cited.

     Under Commission Rule 67,  29 C.F.R.  2700.67, a motion for
summary decision shall be granted  only  if  the  entire  record,
including the pleadings, depositions, answers to interrogatories,
admissions,  and affidavits, shows:  (1) that there is no genuine
issue as to any  material  fact; and (2) that the moving party is
entitled to summary decision  as  a matter of law.  As Respondent
notes, the proffered deposition testimony of Christopher Sloan is
not, to say the least, without ambiguity on the issues presented.
Accordingly, the factual conclusions  the Secretary seeks in this
case cannot be made and may not, in any  event, be germane to the
issues  raised by Respondent.  Genuine issues  of  material  fact
remain and,  accordingly,  this  portion of the Secretary' motion
for summary decision must also be denied.

                                ORDER

     The  Secretary's  motion  for partial  summary  decision  is
DENIED.  Hearings will proceed as  scheduled on January 21, 1998,
in Charleston, West Virginia.

                                         Gary Melick
                                         Administrative Law Judge

Distribution:

Elizabeth Lopes Beason, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203  (Certified Mail)

William Miller, Esq., Jackson & Kelly, P. O. Box 553,
Charleston, WV 25322 (Certified Mail)

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