Greenwich Collieries

Plain-English summary

A methane ignition and explosion occurred at Greenwich Collieries' No. 1 Mine, killing three miners and injuring eleven others. During its investigation, MSHA issued five section 104(d)(1) withdrawal orders for alleged violations that had occurred before the inspectors' later visits. The ALJ held that the orders could not be based on past violations discovered through an investigation. The Commission reversed that legal conclusion, held that section 104(d)(1) orders may address prior violations not observed when they occurred, and remanded for the ALJ to consider the remaining challenges and merits.

Decision snapshot

• Governing provisions: 30 U.S.C. § 813; 30 U.S.C. § 814(d)(1).
• Outcome: The ALJ's decision was reversed and the consolidated case was remanded for further proceedings.
• Key point: Section 104(d)(1) orders may be based on prior violations discovered during an MSHA investigation after the conditions have ceased to exist.

Full text (FMSHRC public release)

CCASE:
GREENWICH COLLIERIES V. MSHA & UMWA
DDATE:
19870930
TTEXT:
FMSHRC-WDC
September 30, 1987
GREENWICH COLLIERIES, DIVISION
OF PENNSYLVANIA MINES
CORPORATION
v. Docket Nos. PENN 85-188-R
PENN 85-189-R
SECRETARY OF LABOR, PENN 85-190-R
MINE SAFETY AND HEALTH PENN 85-191-R
ADMINISTRATION (MSHA) 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
GREENWICH COLLIERIES

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
DECISION
BY: Backley, Doyle and Nelson, Commissioners
This consolidated contest and civil penalty case arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
$ 801 et seq. (1982), presents us with a question of law, similar
to that decided this date in Nacco Mining Co., 9 FMSHRC , Docket
Nos. LAKE 85-87-R and 86-2 (September 30, 1987): May the Secretary
of Labor, in the course of investigations, issue orders pursuant to
section 104(d) of the Mine Act based upon violations that are detected
after the violations have ceased
~1602
to exist? 1/ Commission Administrative Law Judge Roy L. Maurer
held that such orders could not be issued. 8 FMSHRC 1105 (July
1986)(ALJ). For the reasons stated in our decision in Nacco.
supra, we reverse and remand.
The essential facts are as follows: On February 16, 1984,

Page 2

a methane ignition and explosion occurred at the Greenwich No. 1
mine, an underground coal mine operated by Greenwich Collieries,
Division of Pennsylvania Mines Corporation ("Greenwich"), and
located in south-western Pennsylvania. Three miners were killed
and eleven others were injured in the explosion. Representatives
of the Department of Labor's Mine Safety and Health Administration
("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

1/ Section 104(d)(1) provides:
If, upon an 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 and
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 any 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, except those
persons referred to in subsection (c) of this section 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).
~1603
safety standards contributed to the accident. Therefore, on

Page 3

March 2, 1985, MSHA Inspector Theodore W. Glusko issued to
Greenwich, the five section 104(d)(1) orders of withdrawal at
issue in this case. 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.
Greenwich contested the orders and subsequently filed a
motion for summary decision, arguing that the orders were not
issued properly under section 104(d) because the inspector had
not observed the violations during an inspection but had concluded
that the violations occurred based on MSHA's investigation after
the violations had ceased to exist. In granting Greenwich's motion,
the judge relied upon certain unreviewed decisions of Commission
administrative law judges, including two decisions that we reverse
today. 2/ He held that the orders were invalid "because an order
issued under section 104(d) should be based on an inspection as
opposed to an investigation and the above orders state on their
face that the violations which had allegedly occurred are based
on an investigation and no longer then existed." 8 FMSHRC at 1107.
Consequently, the judge vacated the unwarrantable failure
allegations included in the section 104(d) orders, modified the
orders to citations issued pursuant to section 104(a), 30 U.S.C.
$ 814(a), and stated that further proceedings would be held to
resolve the remaining issues. 8 FMSHRC at 1107. Greenwich s motion
for summary decision also contended that the orders did not meet
certain procedural prerequisites of section 104(d)(1) in that they
were not issued within 90 days of the underlying section 104(d)
citation and were not issued "forthwith." Given his disposition of
the motion, the judge did not reach the merits of these contentions.
The Secretary of Labor, joined by the United Mine Workers
of America, which intervened in the proceeding, filed with the
Commission a Petition for Interlocutory Review and a Motion to
Stay Proceedings. We granted both the petition and the motion
and heard oral argument. We conclude that the judge erred. In
Nacco, supra, we set forth the proper interpretation and application
of section 104(d). We held that the enforcement sanctions of
section 104(d) are not restricted to existing violations observed
personally by the inspector. Rather, these sanctions may also be
applied to violations caused by the operator's unwarrantable failure
to comply with mandatory standards -- regardless of whether the
violations are in existence at the time of their detection. Nacco,
slip op. at 5.10. Accord: Emerald Mines, infra, slip op. at 4-6.

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We based this conclusion on the text of section 104(d), its
legislative history, the section's purpose of deterrence and the
overall enforcement scheme of the Mine Act. We emphasized the
importance of unwarrantable failure findings within the graduated
enforcement scheme of section 104(d) that provides "increasingly
severe sanctions for

2/ Nacco, supra; Emerald Mines Corporation, 9 FMSHRC . Docket
No. PENN-85-298-R (September 30, 1987).
~1604
increasingly serious violations or operator behavior." Nacco,
slip op. at 5, quoting Cement Division, National Gypsum Co.,
3 FMSHRC 822, 828 (April 1981). We held:
The threat of th[e] "chain" of citations and
orders under section 104(d) provides a powerful
incentive for the operator to exercise special
vigilance in health and safety matters because it
is the conduct of the operator that triggers
section 104(d) sanctions, not the coincidental
timing of an inspection with the occurrence of
a violation. Indeed, Congress viewed section 104(d)
as a key element in the overall attempt to improve
health and safety practices in the mining industry. ...
To read out of the Act the protections and incentives of
section 104(d) because an inspector is not physically
present to observe a violation while it is occurring
distorts the focus and blunts the effectiveness
of section 104(d). We discern no warrant for such
a formalistic approach.
Throughout section 104(d), enforcement action is
consistently linked to the inspector's determination
that a violation has resulted from the operator's
unwarrantable failure to comply with a mandatory
standard. The focus in section 104(d) is constantly
upon the operator's conduct in failing to comply with
the cited mandatory standard, not upon the current
detection and existence of the violation.
Slip op. at 6 (citations omitted; emphasis in original).
In addition, we rejected the suggestion that Congress intended
to distinguish between enforcement actions based upon an inspection
and those based upon an investigation, and held that inclusion of
the terms "inspection or investigation" in section 104(a) as compared
to use of the term "inspection" alone in section 104(d) was without
legal significance regarding enforcement pursuant to section 104(d).
Slip op. at 7-8. We based this conclusion upon the fact that the

Page 5

terms are not defined in the Mine Act, and that "common usage does
not limit the meaning of 'inspection' to an observation of presently
existing circumstances nor restrict the meaning of 'investigation' to
an inquiry into past events." Slip op. at 8. The varied use of these
terms within the Act and its legislative history also support this
conclusion. Slip op. at 8-9.
Although the present case involves orders issued pursuant to
section 104(d)(1), whereas Nacco involved a citation issued pursuant
to that section, for the reasons stated in Nacco, we hold that orders
issued under section 104(d)(1) can also be based upon prior violations
not observed by the inspector at the time of occurrence. In another
case decided today, we have reached an identical conclusion. White
~1605
County Coal Corp., 9 FMSHRC , Docket Nos. LAKE 86-58-R and
LAKE 86-59-R (September 30, 1987). Further, as we held in White
County, supra, in general and assuming the other prerequisites for
their issuance have been met, "orders are the procedural vehicles
both specified and required by the Mine Act for alleging violations
involving unwarrantable failure once a section 104(d)(1) citation
has been issued." Slip op. at 4.
We noted in Nacco that many violations, by their very nature,
are not likely to be observed or detected until after they occur.
Slip op. at 7. This is particularly so where the violation is a
failure to act as required or where the violation causes or
contributes to the event being investigated. Both types of violation
are present here. Two of the section 104(d) orders allege a failure
to conduct required mine examinations, one being the pre-shift
examination of the active workings and the other being the weekly
examination of the mine's ventilation system. These examinations are
designed to monitor potentially hazardous conditions, including the
accumulation of excessive levels of methane. As such, they warn the
operator of impending danger and are necessary to assure overall mine
safety. Under the judge's decision, such critical violations, even
though caused by an operator's unwarrantable failure, would escape
the unwarrantable failure sanction established by Congress.
The remaining contested orders allege an insufficient volume
and velocity of air ventilating the mine, violations of the mine's
approved ventilation system and methane and dust control plan, and
a failure to take required precautions when making changes in mine
ventilation. These allegations arose out of the inspection and
investigation that the Secretary was required to conduct in order
to determine, among other things, the cause of the accident and
whether there was compliance with mandatory health and safety
standards. 30 U.S.C. $ 813. One purpose of such inspections and
investigations is to avoid future accidents. If the Secretary

Page 6

determines that violations contributing to an accident were caused
by the operator's unwarrantable failure to comply with mandatory
health and safety standards. citation of the violations pursuant to
section 104(d) may deter future unwarrantable failure by an operator
to assure compliance with mandatory health or safety standards.
Congress did not intend to limit the inspectors' power to sanction
unwarrantable operator conduct by removing from the purview of
section 104(d) violations that occurred prior to a disaster but
which were discovered only after the disaster. As we noted in Nacco,
"[t]he focus in section 104(d) is constantly upon the operator's
conduct in failing to comply with the cited mandatory standard, not
upon the current detection and existence of the violation." Slip op.
at 6. For purposes of section 104(d), Congress did not intend to make
distinctions between the citation of past and presently existing
violations when it used the words "inspection" and "investigation" in
the Act. Slip op. at 7-8. Consequently, section 104(d) enforcement
actions may result from "inspections" as well as "investigations."
Finally, although Greenwich argues that requiring the withdrawal
of miners for a violation that no longer exists violates due process
~1606
considerations, no miners were withdrawn from the mine when the
orders in this matter were issued. The Secretary asserts that
under such circumstances the issuance of an order that does not
require withdrawal is consistent with his enforcement policy.
Tr. Oral Arg. 20-21. This policy is appropriate in such circumstances
and in no small way has persuaded us to conclude that the operator's
due process argument on this issue is not well founded.
For the foregoing reasons, we reverse the judge's legal
conclusion that the orders here are invalid because they were issued
based upon an investigation and after the violations ceased to exist.
As noted above, Greenwich also challenged the validity of the orders
because they were not issued within 90 days of the section 104(d)(1)
citation upon which they were based and were not issued "forthwith."
Slip op. at 3. The judge did not reach these issues and on remand
shall rule specifically on them. Further, there are other issues in
this case regarding the merits of the alleged violations and the
Secretary's unwarrantable failure allegations that should be resolved
by the judge on remand.
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
L. Clair Nelson, Commissioner
~1607
Commissioner Lastowka, concurring:
In this case the administrative law judge granted in part a
motion by Greenwich Collieries for summary decision. In its motion

Page 7

Greenwich challenged the validity of five orders issued by MSHA
pursuant to section 104(d)(1) of the Mine Act. Greenwich specified
three grounds upon which it believed summary decision was appropriate:
(1) The orders were not issued as a result of, and
the alleged violations were not detected during, an
inspection, as required by section 104(d)(1); on the
contrary, MSHA concluded that the alleged violations
had occurred based on an investigation after the
alleged violations no longer existed;
(2) the orders were not issued within 90 days of the
issuance of the section 104(d)(1) citation upon which
they were based; and
(3) the orders were not issued "forthwith" as required
by the Mine Act.
Greenwich's Motion for Summary Decision at 2.
The administrative law judge granted Greenwich's motion on
the first ground, finding it "dispositive." 8 FMSHRC at 1107.
Therefore, he did not reach Greenwich's other arguments in support
of its request for summary decision.
I agree with the majority that the judge's decision granting
summary decision must be reversed and the case remanded for further
proceedings. I write separately to explain the basis for my
conclusion in the context of the particular circumstances of this
case.
In ruling on motions for summary decision the facts must be
viewed in the light most favorable to the opposing party, here,
the Secretary. United States v. Diebold. Inc., 369 U.S. 654 (1962).
See 6 Moore's Federal Practice, $56.15[8](1985). In any event,
the essential facts are undisputed and can be summarized as follows.
On February 16, 1984, three miners were killed and several others
were injured as a result of an explosion at the Greenwich No. 1 Mine.
This incident triggered MSHA's exercise of most of the various
statutory responsibilities assigned to it under the Mine Act. MSHA
participated in rescue and recovery efforts, conducted inspections of
the mine, investigated the cause of the explosion, issued numerous
citations and orders alleging violations of the Mine Act and issued
a final report setting forth its findings and conclusions concerning
the explosion.
The particular action taken by MSHA that is challenged by the
operator in the present case is the issuance of five orders pursuant
to section 104(d)(1) of the Mine Act. Each of these orders allege a
violation of a mandatory standard, which MSHA determined contributed
to the cause of the explosion. The orders were issued on March 29,
1985, thirteen and one-half months after the explosion. The orders
state that the violative conditions were observed "during the

Page 8

investigation" of the explosion.
~1608
The challenge to the procedural validity of these orders
that was found by the judge to be dispositive in part concerns
whether, as a matter of law, the Secretary properly can cite
under section 104(d) of the Mine Act violations of the Act that
occurred, but which were no longer in existence at the time of an
MSHA inspection so as to be observable by an inspector. As to this
aspect of the question of law before us, I agree with the majority
that simply because a violation occurs out of the sight of an MSHA
inspector and the violative condition no longer exists at the time
the inspector arrives at the mine, the Secretary is not precluded
from charging the violation in a citation or order issued pursuant
to section 104(d). For the reasons stated in my concurring opinions
in Nacco Mining Co., White County Coal Corp., and Emerald Mines Corp.,
all issued this date, the Secretary's authority to proceed under
section 104(d) in such circumstances is consistent with the plain
language of section 104(d). Furthermore, as I emphasized in Nacco
White County and Emerald depending on the particular circumstances
involved, the citation of unobserved violations pursuant to section
104(d) can serve to accomplish that section's intended purpose
without damaging its underlying enforcement logic and without creating
impractical implementation problems.
Greenwich's challenge to the orders at issue includes the
further assertion that the Secretary properly cannot proceed under
section 104(d) if his determination that a violation of the Mine Act
occurred resulted from an MSHA "investigation", rather than an MSHA
"inspection." This argument also was raised by the operators in Nacco,
White County and Emerald. As explained in my concurring opinions in
those cases, however, consideration of their argument was unnecessary
because each of those cases involved MSHA enforcement activity under
section 104(d) that was, in fact, undertaken "upon an inspection."
30 U.S.C. $ 814(d)(1). The factual circumstances surrounding MSHA's
enforcement action in the present case are fundamentally different
from those in the other three cases and serve to better focus
consideration of the "inspection/investigation" issue. 1/
Section 104(d)(1) of the Mine Act provides that the
enforcement action specified therein can be undertaken by the
Secretary "upon any inspection of a coal or other mine."
30 U.S.C. $ 814(d)(1) (emphasis added). The operator argues, and
the judge agreed, that because the word "inspection" and the word
"investigation" are both used in the Mine A"t in referring to
various statutory responsibilities of the Secretary, a distinctive
impact on the nature of the Secretary's activities was intended
depending on the particular word used in

Page 9

1/ Even in this case the Secretary suggests that consideration of
the issue may be inappropriate because, he asserts, the violative
conditions actually were observed by MSHA inspectors conducting
post-accident inspections. Oral Arg. Tr. at 3-4; Sec. Br. at 11-12.
It is clear, however, that the Secretary's issuance of the orders
some thirteen and one-half months after the explosion was, in large
part, based on information derived from MSHA's extensive investigation
into the causes of the explosion. Therefore, the question of law
reserved in the other cases is fairly presented in the present case.
~1609
a particular statutory provision. See, e.g., sections 103(a),
104(a) and 107(a)(inspections and investigations); sections 103(b)
and 105(c)(2)(investigations); and sections 104(d) and (e)
(inspections). As related to the particular circumstances of the
present case, the argument advanced is that the challenged orders
were all issued upon an "investigation", rather than an "inspection",
and therefore were not properly issued under section 104(d).
The varying uses in the Mine Act of the words "inspection" and
"investigation" are too numerous to attribute simply to editorial
oversight or imprecise draftsmanship. The Mine Act does not define
the words, however, requiring that common usage be the first resort
to determine their meaning. 2A Sutherland Statutory Construction,
$$ 47.01, 47.28 (4th ed. 1984). In Webster's Third New International
Dictionary (1971) common definitions of the words are provided which
suggest that there are shades of distinctions in their meanings, but
which also suggest that the meanings of the two words overlap to a
certain extent and are not mutually exclusive. 2/ As is stated in the
majority opinion in Nacco, in common usage "[b]oth words can encompass
an examination of present and past events and of existing and expired
conditions and circumstances." Nacco, supra, slip op. at 8.
The question therefore becomes whether the distinctions or the
similarities in the meanings of the words are to be given emphasis
in the context of section 104(d). If the distinctions in meanings
are emphasized, then the operator is correct and the Secretary is not
authorized to issue citations or orders pursuant to section 104(d) if
his determination that a violation occurred is based on information
derived from an investigation. Conversely, if the similarities in the
meanings of the words are given emphasis, then violations determined
to exist as a result of MSHA investigations properly may be cited
under section 104(d).
For the reasons stated below, I agree with the majority's
discussion and conclusion in Nacco (slip op. at 7-9) that, in the
particular context of section 104(d), the presence of the word
"inspection" and the absence of the word "investigation" in referring

Page 10

to the Secretary's enforcement activities authorized therein was not
intended to have the substantive effect on the Secretary's authority
argued for by the operator.
The distinguishing feature of section 104(d) is its authorization
of the Secretary to make a special finding that a violation was caused
by an

2/ E.g., "inspection: a strict of close examination; ... an
examination or survey of a community, or premises,
or an installation by an authorized person (as to
determine compliance with regulations or susceptibility
to fire or other hazards."
"investigation: detailed examination: study,
research; a searching inquiry, an official probe."
Webster's, supra, at 1170, 1189.
~1610
"unwarrantable failure" of the operator to comply with the Act
or a mandatory standard. The particular importance of an
unwarrantable failure finding stems from the probationary effect
triggered by its presence in a citation or order. Once a citation
containing an unwarrantable failure finding and a significant and
substantial finding has been issued, any further violation also
caused by an unwarrantable failure within 90 days requires issuance
of a withdrawal order, as do still further violations until a
complete, clean inspection of the mine has taken place. UMWA v.
FMSHRC & Kitt Energy Corp., 768 F.2d 1477, 1479 (D.C. Cir. 1984).
Thus, the plain focus of section 104(d)'s enforcement scheme is on
the conduct of a mine operator in relation to the occurrence of a
violation. If a violation results from an operator's unwarrantable
failure, "the statute requires that a higher toll be exacted from the
operator than is exacted in situations where, although a violation has
occurred, the operator has not acted unwarrantably." Nacco, slip op.
at 18 (concurring opinion).
Section 104(d) is one of "the Secretary's most powerful
instruments for enforcing mine safety" (Kitt Energy, supra. 768 F.2d
at 1479), and the construction of unnecessary impediments hindering
the Secretary's ability to fully exercise this special authority
should not be undertaken lightly. As described above the focus of
section 104(d) is on the conduct of an operator in connection with a
violation. In this regard it must be emphasized that the nature of
an operator's conduct in relation to a particular violation will not
change depending on whether MSHA discovered the fact of violation
through an inspection or through an investigation. Acceptance of the
operator's argument in the context of section 104(d) would mean that
the enforcement procedure established by Congress to specifically

Page 11

address and deter unwarrantable conduct on the part of mine operators
could not be invoked in a large number of instances simply because the
operator's unwarrantable violation was discovered during an MSHA
"investigation" rather than during an MSHA "inspection."
Given the remedial purpose of the Mine Act, the deterrent
purpose of section 104(d) in particular, the lack of special
definitions of "inspection" and "Investigation" in the Mine Act,
the substantial overlap in the commonly understand meanings of the
words and the lack of any overriding contrary indication in the
legislative history as discussed by the majority and dissenting
opinions in this decision and the other decisions issued this date,
I conclude that the Secretary properly can proceed under section
104(d) of the Mine Act in issuing citations and orders for violations
that MSHA determines, during the course of an investigation, to have
occurred at a mine. Therefore, I concur in the majority's reversal
of the judge's contrary conclusion and in the remand for further
appropriate proceedings.
I note that the further proceedings in this case necessarily will
encompass consideration of the operator's remaining challenges to the
validity of the section 104(d) orders at issue which were not reached
by the judge in his first decision. These arguments concern the
effect, if any, on the validity of the section 104(d) orders caused
by the lapse of time between the occurrence of the violations, MSHA's
determination that the violations occurred and the date that the
orders ultimately were issued. In rejecting those arguments of the
operator discussed in this opinion, I intimate no view as to the
merits of the remaining arguments. They too raise
~1611
important questions that will have to be resolved in light of
the language and purpose of section 104(d), the particular
circumstances surrounding the violations and the manner in which
the Secretary proceeded in issuing the contested orders. 3/
James A. Lastowka, Commissioner

3/ I believe that the majority's expression of opinion concerning
the Secretary's policy of issuing withdrawal orders that have no
idling effect is premature. Slip op. at 5-6. In my view, that
aspect of this case requires full consideration in conjunction with
the disposition of the important issues remaining in this case.
~1612
Chairman Ford, dissenting:
For the reasons stated in my dissent today in Nacco Mining
Co., 9 FMSHRC _____ (Sept. 30, 1987), I would affirm the decision
of Administrative Law Judge Maurer in this case. That dissent is,
therefore, incorporated herein by reference. In my view the statutory

Page 12

restrictions on the use of unwarrantable failure sanctions for past
completed violations unobserved by the inspector apply equally to
citations and orders issued under section 104(d). 30 U.S.C. 814(d).
Furthermore, as noted in my Nacco dissent, supra, at pp. 33-36,
the majority's decision places no temporal restrictions on the
imposition of section 104(d) sanctions. The majority suggests that
a procedural challenge may lie where section 104(d) orders are issued
13 months after the issuance of an underlying 104(d)(1) citation.
However, the surer remedy against such gross distortions of the
unwarrantable failure "chain" would be to restrict the application
of section 104(d) to extant violations observed by inspectors in the
course of their inspections. I firmly contend that the statute so
provides.
Unlike my colleagues, I am not persuaded that a closure order
that closes no mine or part thereof - or that withdraws no miners -
serves the Secretary's enforcement policy. As noted in my Nacco
dissent at p. 15, such an enforcement action is a dead letter, or
as Greenwich contends, a "sham." Brief at p. 13.
Accordingly, I dissent.
Ford B. Ford, Chairman
~1613
Distribution
Ann Rosenthal, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Thomas W. Meyers, Esq.
United Mine Workers of America
56000 Dilles Botton
Shadyside, Ohio 43947
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Paul W. Reidl, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
R. Henry Moore, Esq.
Rose, Schmidt, Chapman, Duff & Hasley
900 Oliver Bldg.

Page 13

Pittsburgh, Pennsylvania 15222
Administrative Law Judge Roy J. Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041