Greenwich Collieries

Plain-English summary

Greenwich Collieries operated the Greenwich No. 1 underground coal mine, where a methane ignition and explosion had killed three miners and injured eleven others. MSHA later issued five withdrawal orders under section 104(d)(1) based on alleged violations found during its investigation. The Commission affirmed in result the judge's modification of those orders to section 104(a) citations because the orders, issued after the mine was already under the section 104(d)(2) chain and after the conditions had ended, had no probationary or protective effect. The Commission remanded for the judge to decide the merits of the violations, the significant-and-substantial and unwarrantable-failure allegations, and any civil penalties.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(a), § 814(d)(1), and § 814(d)(2)
• Outcome: The orders were treated as section 104(a) citations and the matter was remanded for merits and penalty determinations.
• Key point: Section 104(d) sanctions must be considered in the context of the protective and probationary purposes they serve.

Full text (FMSHRC public release)

CCASE:
GREENWICH COLLIERIES V. MSHA
DDATE:
19900522
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
May 22, 1990
GREENWICH COLLIERIES, DIVISION
OF PENNSYLVANIA MINES
CORPORATION
v.
Docket Nos. PENN 85-188-R
SECRETARY OF LABOR, PENN 85-189-R
MINE SAFETY AND HEALTH PENN 85-190-R
ADMINISTRATION (MSHA) PENN 85-191-R
PENN 85-192-R
and

UNITED MINE WORKERS OF
AMERICA (UMWA)
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

and

UNITED MINE WORKERS OF
AMERICA (UMWA)
v. Docket No. PENN 86-33
PENNSYLVANIA MINES
CORPORATION,
GREENWICH COLLIERIES

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
DECISION
BY THE COMMISSION
This consolidated contest and civil penalty proceeding, which is
before the Commission on interlocutory review for a second time, arises
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under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. •801
et seq. (1988) ("Mine Act" or "Act"). This case involves orders of
withdrawal issued pursuant to section 104(d)(1) of the Mine Act by the
Department of Labor's Mine Safety and Health Administration ("MSHA")
as the result of its investigation following a methane ignition and
explosion of the Greenwich No. 1 mine, an underground coal mine operated

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by Greenwich Collieries, a division of Pennsylvania Mines Corporation
("Greenwich"). 1/
In Greenwich Collieries Corp., 9 FMSHRC 1601 (September 1987)
("Greenwich I"), the Commission reversed the judge's conclusion in his
first decision (8 FMSHRC 1105 (July 1985)(ALJ)) that the withdrawal orders
were invalid because they were issued based on an investigation after the
violations had ceased to exist, and remanded to the judge for consideration
of remaining issues. On remand, acting on Greenwich's motion for summary
decision, the judge again invalidated the section 104(d)(1) withdrawal
orders, this time on the ground that, although the violations in question
had been "found" by MSHA within the 90-day time-frame mentioned in section
104(d)(1), the orders had not been issued "forthwith" within the meaning of
that section. The judge therefore modified the section 104(d)(1) orders to
section 104(a) citations.

1/ Section 104(d)(1) of the Act states in pertinent part:
If, upon any inspection of a coal or other mine
an authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds that,
while the conditions created by such violation do not
cause imminent danger, such violation is of such nature
as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards,
he shall include such finding in any citation given to
the operator under this [Act]. If, during the same
inspection or subsequent inspection of such mine within
90 days after the issuance of such citation, an
authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused by
an unwarrantable failure of such operator to so comply,
he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by
such violation ... to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.
30 U.S.C. •814(d)(1).
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9 FMSHRC 2051 (October 1987)(ALJ). 2/ Both Greenwich and the Secretary
petitioned the Commission for interlocutory review of the judge's order

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granting partial summary decision, and we granted both petitions. For the
reasons that follow, we affirm in result the judge's modification of the
withdrawal orders and remand for further proceeding.
I.
In Greenwich I, we summarized the procedural history of this case
leading to Greenwich's challenge:
On February 16, 1984, a methane ignition and
explosion occurred at the Greenwich No. 1 mine,
an underground coal mine operated by Greenwich
Collieries ... . Three miners were killed and
eleven others were injured in the explosion.
[MSHA] arrived at the mine, engaged in rescue
and recovery efforts, observed conditions at the
site, and began an investigation of the cause of
the explosion. As part of its investigation,
MSHA examined the entire mine between February 25
and April 5, 1984, and between March 27 and April 27,
1984, took sworn statements from numerous individuals
who participated in the recovery operations or who
had information regarding the conditions in the mine
prior to the explosion. The Secretary's investigators
concluded that the operator's unwarrantable failure to
comply with five mandatory safety standards contributed
to the accident. Therefore, on March 29, 1985, MSHA
Inspector

2/ Section 104(a) provides in part:
If, upon inspection or investigation, the
Secretary or his authorized representative believes
that an operator of a coal or other mine subject
to this [Act] has violated this [Act], or any
mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this [Act],
he shall, with reasonable promptness, issue a
citation to the operator. Each citation shall be
in writing and shall describe with particularity
the nature of the violation, including a reference to
the provision of the [Act], standard, rule, regulation,
or order alleged to have been violated. In addition,
the citation shall fix a reasonable time for abatement
of the violation. The requirement for the issuance
of a citation with reasonable promptness shall not be a
jurisdictional prerequisite to the enforcement of any
provision of this [Act].
30 U.S.C. • 814(a).

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Theodore W. Glusko issued to Greenwich the five
section 104(d)(1) orders of withdrawal at issue in
this case. [3/] The orders alleged that violations
of various safety standards had occurred in December
1983 and January and February 1984. Each of the
section 104(d)(1) orders indicated that they were
based on a section 104(d)(1) citation issued to
Greenwich on February 24, 1984. The orders also
indicated that they were terminated at the time that
they were issued. No miners were withdrawn from the
mine as a result of the orders.
9 FMSHRC at 1603. In addition, the orders alleged that each violation was
of a significant and substantial nature.
Following out Greenwich I remand, Greenwich contended before the
administrative law judge that the orders were invalid because they had
not been issued within 90 days of the issuance of the section 104(d)(1)
citation upon which they were based and because they had not been issued
"forthwith," within the meaning of section 104(d)(1). The judge rejected
Greenwich's contention that the orders were invalid because they were not
issued within 90 days of the underlying section 104(d)(1) citation. He
observed that although the orders were issued approximately 13 months after
the predicate section 104(d)(1) citation was issued on February 24, 1984,
section 104(d)(1) requires that a section 104(d)(1) withdrawal order shall
issue "[i]f ... within 90 days after the issuance of ... [a section
104(d)(1) citation], an authorized representative of the Secretary finds
another violation of any mandatory health and safety standard" caused by an
unwarrantable failure. 9 FMSHRC at 2054 (emphasis added). The judge
noted the Secretary's assertion that evidence of each of the violations was
obtained between the date of the explosion, February 16, 1984, and
April 27, 1984, when formal testimony in the investigation was concluded,
and he accepted as true the Secretary's allegation that the contested
violations were, therefore, "found" by the Secretary within 90 days of the
February 24 section 104(d)(1) citation. 9 FMSHRC at 2054.
The judge further held, however, that the orders were not issued
"forthwith" within the meaning of section 104(d)(1). 9 FMSHRC at 2056.
The judge stated that in common usage "forthwith" means "immediately."
He reviewed the chronology of events in this matter: the orders allege
violations occurring in December 1983 and January-February 1984; the
explosion occurred on February 16, 1984; MSHA examined the mine between
February 25 and April 5, 1984; and MSHA took testimony regarding the
explosion between March 27 and April 27, 1984. He found that although
MSHA "could have" issued the orders on April 27, 1984, MSHA waited
until March 29, 1985, and that the 11-month delay did not demonstrate

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3/ On March 29, 1985, the mine was subject to the provisions of section
104(d)(2) of the Mine Act. The withdrawal orders in question were
nevertheless issued by the Secretary under section 104(d)(1) to "make it
clear that they ... relat[ed] back to the time the violations were found."
Sec. Br. to ALJ 6.
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"immediacy." 9 FMSHRC at 2055.
The judge further noted that while section 104(a) provides the
delay in issuing a citation "shall not be a jurisdictional prerequisite
to the enforcement of any provision of [the] Act, "he found no similar
"saving provision" in section 104(d). 9 FMSHRC at 2056. The judge
also found no indication in the Mine Act or its legislative history that
the timeliness requirements of section 104(d) were not jurisdictional
prerequisites to the issuance of valid section 104(d) withdrawal order.
9 FMSHRC at 2056.
The judge concluded that a showing of prejudice was not required
to invalidate section 104(d)(1) orders that are not issued "forthwith."
9 FMSHRC at 2056. He further concluded that, even if prejudice were
required, he agreed with Greenwich that an 11-13 month delay in
notification was "inherently prejudicial in some degree to ... [the]
operator's ability to defend itself." Id. Based on the foregoing, the
judge invalidated the five orders and again modified them to section 104(a)
citations. 9 FMSHRC at 2056. The Secretary and Greenwich petitioned for
interlocutory review, and we granted both petitions.
II.
Greenwich contends that the judge erred in holding that MSHA's
failure to issue the contested orders within 90 days of the section
104(d)(1) citation did not invalidate the orders. Greenwich argues
that section 104(d) focuses on the issuance of the citation and orders,
not the detection of the underlying violations. Thus, Greenwich asserts
that the Mine Act requires that a section 104(d)(1) order must be issued
within the 90-day probationary period following the date of the predicate
section 104(d)(1) citation.
The Secretary asserts that the judge erred in concluding that the
contested orders were invalid because they were not issued "forthwith"
after the violations were "found." The Secretary argues that there is
no jurisdictional time limit in section 104(d)(1) precluding issuance
of withdrawal orders containing unwarrantable failure findings outside
the 90-day time limit in circumstances where it takes the Secretary more
than 90 days to "finalize" her "findings" and to issue the appropriate
orders. The Secretary explains that here, although preliminary findings
of violations were indeed made within three months of the explosion, in
accident or disaster situations it may be many more months (or even
years) before MSHA is able to conclude its investigation, "finally" find
violations, and issue the appropriate withdrawal orders. The Secretary

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argues that it is contrary to the purposes of the Act to conclude that
such delay precludes the Secretary from citing the operator for the
unwarrantable failure violations that it committed.
The parties' raise two potentially important issues: (1) whether
failure to issue section 104(d)91) withdrawal orders within 90 days of
a predicate section 104(d)(1) citation invalidates the orders; and
(2) whether the judge erred in invalidating the orders because they
were not issued "forthwith."
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These arguments raise important issues concerning the construction
and implementation of section 104(d) of the Mine Act. Upon close analysis,
however, we conclude that the facts and procedural posture of this case do
not squarely present the issues, and that their resolution is not required
for a proper disposition of this case. Therefore, we conclude that it is
prudent to reserve consideration of such questions to a future case truly
presenting the issues raised.
It is important here to understand the relationship between
sections 104(a) and 104(d) of the Act and, in particular, the specific
purpose and structure of section 104(d). Under section 104(d) of the
Act, if an inspector finds a violation and also finds that the violation
is of a significant and substantial nature and resulted from an operator's
unwarrantable failure to comply with a mandatory standard, a citation
noting these findings is issued. For the sake of convenience, this
citation, the "predicate" citation in the section 104(d) "chain," is
commonly referred to as a "section 104(d)(1) citation." Nacco Mining Co.,
9 FMSHRC 1541, 1545 n. 6 (September 1987). The Commission has explained,
however, that a "section 104(d)(1) citation" nevertheless is a citation
issued pursuant to section 104(a) of the Act containing the special
findings referred to in section 104(d)(1). Utah Power and Light Co.,
11 FMSHRC 953, 956-57 (June 1989).
Section 104(d)(1) provides that "[i]f, during the same inspection or
any subsequent inspection ... within 90 days after the issuance of such
citation," the inspector finds a further unwarrantable failure violation,
a withdrawal order is to be issued under section 104(d)(1). Further, if
more unwarrantable violations are found during any subsequent inspection
of the mine, withdrawal orders under section 104(d)(2) of the Act are to
be issued. 30 U.S.C. •814(d)(2). The operator remains on probation, and
issuance of withdrawal orders based on unwarrantable findings does not
cease, until an inspection of the mine discloses no further unwarrantable
failure violations. Kitt Energy Corp., 6 FMSHRC 1596 (July 1984), aff'd
sub nom. UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985). This, then, is
the section 104(d) "chain."
Section 104(d) is an integral part of the Mine Act's graduated
enforcement scheme, a scheme providing for "increasingly severe sanctions
for increasingly serious violations or operator behavior." Nacco, supra,

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9 FMSHRC at 1545, quoting Cement Division, National Gypsum Co., 3
FMSHRC
822, 828 (April 1981). Like the overall enforcement scheme of the Act,
section 104(d) imposes sanctions in a graduated manner, with increasingly
serious consequences. White County Coal Corp., 9 FMSHRC 1578, 1581
(September 1987). The focus of section 104(d) is upon the operator's
unwarrantable conduct. Section 104(d) seeks to discourage repetition of
such conduct by placing the operator on a probationary "chain." This
probationary period, backed up by the threat of a withdrawal order, is
"among the Secretary's most powerful instruments for enforcing mine
safety." UMWa v. FMSHRC, supra, 768 F.2d at 1479.
In order to preserve the use of section 104(d) as an effective
deterrent, the use of section 104(d) sanctions has been upheld in
situations where unwarrantable failure violations have been detected
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after they have ceased to exist, recognizing that many violations by
their very nature cannot be, or are unlikely to be, observed or detected
until after they occur. Emerald Mines Corp., 9 FMSHRC 1590, 1594
(September 1987), aff'd sub nom. Emerald Mines Corp. v. FMSHRC, 862 F.2d
51, 58-59 (D.C. Cir. 1988); Nacco, 9 FMSHRC at 1581-82; Greenwich I,
9 FMSHRC at 1605. The Secretary's use, in general, of section 104(d)
withdrawal orders for past violations has also been upheld because such
orders are the procedural vehicles specified and required by the Mine Act
for alleging unwarrantable violations once a predicate section 104(d)(1)
citation has been issued. White County, supra, 9 FMSHRC at 1581. The
Emerald court noted that, in general, such use of section 104(d) orders
is not "pointless" because it serves to place or keep the mine operator
on the section 104(d) probationary chain. 863 F.2d at 57.
Here, however, the Secretary issued purported section 104(d)(1)
orders, but the "orders" served one of section 104(d)'s special and
important purposes. The Secretary concedes that when the contested
orders were issued, the Greenwich No. 1 mine was under the section
104(d)(2) portion of the section 104(d) "chain." Nevertheless, rather
than issuing the orders pursuant to section 104(d)(2), the Secretary
chose instead to issue section 104(d)(1) orders "related back to the
time the violations were found" or to the time of their occurrence some
13 months earlier. Sec. Br. to ALJ at 6; Sec. Br. 6. Because the
enforcement action pursued by the Secretary relates the orders back
11-13 months in time, the orders had absolutely no probationary effect,
either then or at the time of their actual issuance. Further, because
the specific violations cited in the orders had been abated months
before, the orders were terminated simultaneously with their issuance and
no miners were withdrawn by these withdrawal orders. See Sec. Br. 6, 16.
Thus, the section 104(d)(1) orders challenged here served none of
the special probationary or protective purposes of section 104(d). They

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did not affect the existing probationary section 104(d)(2) "chain," they
did not require the withdrawal of miners from the areas affected by the
violations; and, because the violations had ceased to exist, they did not
require the abatement of unsafe and violative conditions. In sum, with
these orders the Secretary did not impose any of the special sanctions
serving as the hallmark of section 104(d) action, and the orders served
none of section 104(d)'s special purposes.
The important issues raised by the parties concerning the imposition
of section 104(d)'s special sanctions should be considered and resolved in
a case where such sanctions actually have been invoked by the Secretary.
In resolving challenges to the Secretary's enforcement authority, it is
important to examine the reality of the Secretary's enforcement actions.
Emerald, 863 F.2d at 58. Here, under the guise of section 104(d)
sanctions, the Secretary's enforcement action actually amounts to nothing
more than citations of violations, which citations contain special findings
of significant and substantial and unwarrantable failure. Were we to
pursue here the important issues raised by the parties, we would be
interpreting section 104(d) in a factual context devoid of consequential
section 104(d) enforcement action. In the exercise of our prudential
judicial discretion,
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therefore, we conclude that resolution of such important issues under
these circumstances would be unwise.
III.
Accordingly, under the circumstances of this case, the contested
orders, in essence, are nothing more than section 104(a) citations
containing special findings, but lacking section 104(d) effect. We
therefore affirm in result the judge's modification of the orders to
section 104(a) citations and we remand the matter for his determination
of the merits of the violations, the significant and substantial and
unwarrantable failure allegations, and, if necessary, the civil penalties
to be imposed.
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Distribution
Linda L. Leasure
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Suite 400
Arlington, Virginia 22203
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell and Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2505

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Mary Lu Jordan, Esq.
Earl R. Pfeffer, Esq.
United Mine Workers of America
900 Fifteenth St., N.W.
Washington, D.C. 20005
Administrative Law Judge Roy Maurer
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041