Utah Power & Light Co.

Plain-English summary

Utah Power & Light's Mining Division sought interlocutory review after an ALJ denied its motion for summary decision in proceedings arising from the Wilberg Mine fire and loss of life. Utah Power argued that it was not liable as Emery Mining Corporation's successor in interest, while the Secretary also suggested that Utah Power might be independently liable as an operator. The Commission found the Secretary's pleadings and the ALJ's orders unclear about the theory of liability. It denied immediate review, required the Secretary to clarify the theory or theories it would pursue, and allowed Utah Power to renew its defenses or motions.

Decision snapshot

• Governing provisions: 30 U.S.C. § 801; 29 C.F.R. §§ 2700.64 and 2700.74
• Outcome: The petition for interlocutory review was denied, with clarification of the liability theory required before further motions.
• Key point: A party cannot obtain meaningful interlocutory review when the charging theory and the basis for the ALJ's ruling are not clearly stated.

Full text (FMSHRC public release)

CCASE:
UTAH POWER & LIGHT V. MSHA AND UMWA
DDATE:
19871223
TTEXT:
FMSHRC-WDC
December 23, 1987
UTAH POWER & LIGHT CO., Docket Nos. WEST 87-130-R through
MINING DIVISION WEST 87-163-R
WEST 87-243-R through
v. WEST 87-249-R
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners
ORDER
BY THE COMMISSION:
Utah Power & Light Co., Mining Division ("UP&L") has petitioned
the Commission for interlocutory review of an order issued in these
proceedings by Commission Administrative Law Judge John J. Morris
denying UP&L's motion for summary decision. Respondent Secretary of
Labor and Intervenor United Mine Workers of America ("UMWA") oppose
the petition. Upon consideration of the petition and oppositions, the
petition is denied for the reasons set forth below.
On March 24, 1987, as a result of an investigation by the
Department of Labor's Mine Safety and Health Administration ("MSHA")
of a fire and loss of life at the Wilberg Mine in December 1984, the
Secretary issued numerous citations and orders to "Emery Mining Corp.
and its successor-in-interest Utah Power & Light Co., Mining Division.
At the time of the fire, the Wilberg Mine was owned by UP&L but,
pursuant to contract, was being operated for UP&L by Emery Mining
Corporation ("Emery"). On April 16, 1986, UP&L purchased Emery's
assets and assumed direct operation of the Wilberg Mine.
UP&L contested the citations and orders issued to it by the
Secretary asserting that it was "not liable for the violation[s] as
Emery's successor-in-interest." The Secretary filed general answers
to UP&L's notices of contest, denying all allegations contained in the
contests.
~2029
On May 22, 1987, during the course of pre-hearing proceedings,
UP&L filed a motion for summary decision pursuant to Commission
Procedural Rule 64, 29 C.F.R. $ 2700.64, arguing that, as a matter

Page 2

of law, it was not liable as a successor-in-interest for the
violations alleged in the citations and orders. The Secretary filed
a response and crossmotion for summary decision, asserting that "UP&L
can be held liable as either 'successor-in-interest' to [Emery] or
independently as a mine operator for violations cited by [MSHA] ...."
Sec. Response and Cross-Motion for Summary Judgment at 3.
In an unpublished order issued on August 5, 1987, the judge
denied both motions. The only explanation given in the order for his
denial was that "a genuine issue of fact concerns whether UP&L was in
control of the Wilberg Mine at the time of the alleged violations."
Order at 3 (August 4, 1987). On September 18, 1987, UP&L moved the
judge for reconsideration, contending that the question of whether
UP&L was in control of the Wilberg Mine, although possibly relevant
to whether UP&L may be held liable as an operator, was irrelevant to
whether UP&L was liable as Emery's successor-in-interest as charged in
the citations and orders -- the sole issue raised in UP&L's motion for
summary decision. Judge Morris denied the motion for reconsideration
without explanation.
Commission Procedural Rule 74, 29 C.F.R. $ 2700.74, sets forth
the standard of review governing consideration of such petitions: The
Commission, in its discretion, may grant interlocutory review "upon a
showing that the [challenged] ruling involves a controlling question
of law and that immediate review of the ruling may materially advance
the final disposition of the proceeding." Because the Secretary has
failed to articulate clearly the theory underlying his charges against
UP&L, and because the judge's order does not state clearly the basis
of his rulings on UP&L's motions, we are unable to determine whether
the issue of UP&L's liability as a successor-in-interest involves a
controlling question of law and whether interlocutory review will
advance the final disposition of this case.
The record reveals that the contested citations and orders were
issued to UP&L as Emery's "successor-in-interest." The record also
reveals that the thrust of UP&L's defense to date is that it is not
liable as a successor. In response to UP&L's motion for summary
decision, the Secretary stated that UP&L also may be independently
liable as an "owner-operator" (Sec. Response at 7), but the major
focus of the Secretary's argument was that UP&L is liable as a
successor-in-interest. Sec. Response 8-21. Additionally, in response
to UP&L's motion for reconsideration the Secretary stated as follows:

~2030
Although the Secretary determined that Emery was
properly cited as the operator and UP&L was properly
cited as a successor-in-interest, we fully agree that
UP&L exercised operator-type health and safety

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responsibilities under the Mine Act. Therefore, if it
is determined by the judge that, based upon the facts, UP&L
was a co-operator of the Wilberg Mine at the time of the
cited violation, then the Secretary would accept that
determination and would agree that such a determination
would be a proper exercise of his authority.... The facts
at the time of issuance supported, in the Secretary's view,
citing UP&L, at least, as a successor-in-interest. However,
after review, further evidence might support charging UP&L
as a co-operator as well as a successor-in-interest.
Sec. Response at 3-4 (emphasis added). The Secretary further states
in his opposition to UP&L's petition for interlocutory review that
"[t]he fact that UP&L was cited as a successor does not mean that the
judge may not hold it liable as an operator if the evidence supports
such a finding." Sec. Opposition To Motion for Interlocutory Review 3
(emphasis added). The Secretary also argues that any defect in his
pleadings may be corrected subsequently through Fed. R. Civ. P.
15(b)(amendments to conform to the evidence).
We regard the existing state of the Secretary's pleadings as
unfocused and confused, providing neither UP&L nor the Commission with
a clear statement of his asserted basis for imposing liability upon
UP&L. The Secretary as prosecutor is responsible for charging
violations under the Mine Act, not the Commission. As UP&L notes, the
Secretary's theory for imposing liability will determine the nature of
UP&L's defense to the allegations contained in the citations and
orders. UP&L Petition for Interlocutory Review 4-5. To avoid any
possibility of prejudice to UP&L, a clear articulation of the
liability theory or theories that the Secretary is alleging and
intends to pursue in this important litigation is required.
~2031
These proceedings are in a preliminary, prehearing stage.
The Secretary must clarify the theory of liability upon which he
intends to proceed. UP&L may, of course, renew or interpose whatever
defenses or motions it deems appropriate. Finally, it is incumbent
on the judge to fully explain the basis of his rulings on any such
further motions.
Accordingly, the petition for interlocutory review is denied.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
James A. Lastowka, Commissioner
L. Clair Nelson, Commissioner
~2032
Distribution
Timothy M. Biddle, Esq.

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Thomas C. Means, Esq.
Kevin J. Darken, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Paul H. Proctor, Esq.
Utah Power & Light Company
P.0. Box 899
Salt Lake City, Utah 84110
Colleen A. Geraghty, Esq.
James B. Crawford, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Michael Dinnerstein, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204