Emery Mining Corporation and/or Utah Power & Light Company

Plain-English summary

Emery Mining sought to postpone a group of Mine Act contest and civil penalty hearings connected to the Wilberg Mine fire. Emery said that a related Utah products-liability trial could create prejudicial publicity and complicate the pending cases. The Secretary opposed further delay, citing the public interest in prompt resolution and penalty deterrence. Judge John J. Morris granted a three-month continuance, cancelled the March 13, 1990 hearing, and rescheduled it to begin June 5, 1990.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.54; 29 C.F.R. § 2706.150(a)(3); 29 C.F.R. § 2706.160(e).
• Outcome: The scheduled hearing was continued and rescheduled for June 5, 1990.
• Key point: The judge weighed judicial economy and orderly adjudication against the public interest in prompt penalty proceedings.

Full text (FMSHRC public release)

~353
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

EMERY MINING CORPORATION CONTEST PROCEEDINGS
AND/OR UTAH POWER & LIGHT
COMPANY, Docket No. WEST 87-130-R
CONTESTANTS Citation No. 2844485; 3/24/87

     v.                                 Docket No. WEST 87-131-R
                                        Order No. 2844486; 3/24/87

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. WEST 87-132-R
ADMINISTRATION (MSHA), Order No. 2844488; 3/24/87
RESPONDENT
Docket No. WEST 87-133-R
AND Order No. 2844489; 3/24/87

UNITED MINE WORKERS OF Docket No. WEST 87-144-R
AMERICA, (UMWA), Order No. 2844795; 3/24/87
INTERVENOR
Docket No. WEST 87-145-R
Order No. 2844796; 3/24/87

                                        Docket No. WEST 87-146-R
                                        Order No. 2844798; 3/24/87

                                        Docket No. WEST 87-147-R
                                        Order No. 2844800; 3/24/87

                                        Docket No. WEST 87-150-R
                                        Order No. 2844805; 3/24/87

                                        Docket No. WEST 87-152-R
                                        Order No. 2844807; 3/24/87

                                        Docket No. WEST 87-153-R
                                        Order No. 2844808; 3/24/87

                                        Docket No. WEST 87-156-R
                                        Order No. 2844813; 3/24/87

                                        Docket No. WEST 87-157-R
                                        Order No. 2844815: 3/24/87

                                        Docket No. WEST 87-160-R
                                        Order No. 2844822; 3/24/87

                                        Docket No. WEST 87-161-R
                                        Order No. 2844823; 3/24/87

                                        Docket No. WEST 87-248-R
                                        Citation No. 2844835; 8/13/87

                                        Wilberg Mine

                                        Mine I.D. No. 42-00080

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SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 87-208
PETITIONER A.C. No. 42-00080-03578

      v.                                Docket No. WEST 87-209
                                        A.C. No. 42-00080-03579

EMERY MINING CORPORATION, AND
ITS SUCCESSOR-IN-INTEREST Docket No. WEST 88-25
UTAH POWER & LIGHT COMPANY, A.C. No. 42-00080-03584
MINING DIV.,
RESPONDENT Wilberg Mine

      AND                               Consolidated

UNITED MINE WORKERS OF
AMERICA (UMWA),
INTERVENOR

                            ORDER

 The issue presented here is whether the hearing in the above

cases, now scheduled to commence on March 13, 1990, in Price,
Utah should be rescheduled until after May 31, 1990.

 Emery Mining Corporation (Emery) has filed a motion seeking

the continuance. Secretary opposes and Intervenor did not state a
position.

 In support of its motion Emery states as follows:

 That after the Wilberg Mine fire wrongful death claims were

made against Utah Power & Light Company (UP&L). Some of UP&L's
insurance carriers refused to contribute and UP&L sought
reimbursement from certain carriers. After the fire UP&L also
brought a product liability action against manufacturers of
equipment involved in the fire. The equipment manufacturers
impleaded Emery as a third party defendant.

 The case involving UP&L, UP&L's property insurance carriers,

the equipment manufacturers and Emery, the "products case", is
scheduled to begin trial on April 23, 1990, in the Fourth
Judicial District Court of Utah County in Provo.

 With the addition of accrued interest, the total amount at

issue in the products case exceeds $100,000,000.

 The cases pending before the Presiding Judge involve

allegations resulting from MSHA's investigation of the Wilberg
fire. Since the focus of the products case will be directed at
the events of the fire, it is likely the media will attend the
trial and fully report the proceedings. In short, the penalty
cases if tried in March will be a "warm-up" for publicity on the
products case.

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The expected media coverage of the Commission cases may prejudice
the parties in the products case (where hearsay is inadmissible)
and it could be difficult to impanel an impartial jury in the
products case.

 Further, media representatives are expected to seek

interviews with counsel, government and company officials. In
addition, television and still photography may be requested in the
courtroom during the trial.

 The trial of the MSHA cases after the completion of the

products case remove the problems connected with pre-trial
publicity and should ameliorate possible media disruption and
will remove any barrier to rapid efficient disposition of the
pending cases or to their settlement.

 The Secretary opposes Emery's motion.

 The Secretary states as follows: she believes it was

appropriate to stay the hearing during the period of the criminal
referral. However, the Secretary urges it is time to resolve this
matter without further delay.

 The Secretary believes it is unfair to the families of the

victims, as well as those in management, labor and government who
participated in the investigation and recovery effort and to the
general public to continue the hearing.

 Potential harm in a third party law suit should not be a

factor in determining a continuance here. It is urged that ample
procedural and evidentiary rules exist in state courts and state
tort laws to protect the interest of the parties in that case.

 The Secretary further urges that prompt resolution of the

pending Commission cases will serve as a deterrent to former
employees of Emery, now working for UP&L, other nearby mines and
to the general mining community. It is contended this will
encourage safe mining operations -- the underlying purpose of the
Act.

 Since Commission proceedings are public hearings the

potential presence of the press should not be a basis for a
continuance.

 Finally, these proceedings before the Commission were filed

long before the third party suit involving Emery.

 In short, the Secretary urges that judicial efficiency

supports going forward rather than adding to further delay and
fading memories.

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Discussion

 Whether a continuance should be granted or denied is within

the discretion of the Presiding Judge. Commission Rule 54, 29
C.F.R. 2700.54.

 We have reached the point where the Commission cases and the

State of Utah products case are essentially scheduled to be heard
back to back. This no doubt occurred because all parties involved
were sensitive to the constitutional issues presented by parallel
civil and criminal prosecutions. Further, the United States
Attorney for the State of Utah requested that the civil
administrative cases be stayed until the Secretary of Labor's
criminal referral was resolved.

 On August 25, 1989, the United States Attorney declined to

initiate prosecutions against Emery, or any of its agents, for
violations of the Mine Act arising from the fire. Further, in
December, 1989, the related statute of limitations expired and
the statute bars any criminal prosecutions.

 These proceedings were originally brought against Emery to

collect civil penalties for conditions that MSHA inspectors
believed existed at the Wilberg Mine fire. At one time 44 cases
were pending before the Presiding Judge. Some of the cases have
been settled and others are on appeal. Only 19 cases remain
pending before the Presiding Judge.

 While the Act makes civil penalties mandatory for proven

violations of mandatory safety standards, penalties are for the
purpose of deterrence, not punishment. National Independent Coal
Operators' Ass'n. v. Kleppe, 423 U.S. 388 (1976).

 Normally a public interest exists in prompt penalty

deterrence if it were proved that Emery violated a standard. But
that interest is considerably reduced in this situation.

 Due to no fault of the parties five years have expired.

Emery has no employees but it continues to be a corporation in
good standing and with assets to pay any civil penalty imposed in
these proceedings (documented by papers filed in these cases with
respect to successorship issues). Since prompt deterrence is no
longer a predominant factor here, I conclude the public interest
is best served by the fair and orderly adjudication of these
cases.

 The parties have not been dilatory in these proceedings

before the Commission. The sheer volume of the files and the
reduction in the number of cases from 44 to 19 cases attest to
this fact.

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The Judge believes Emery and the Secretary may well be able to
settle many of the violations at issue in the pending cases after
completion of the products case leaving only a few, if any, for
trial.

 Such a result would serve judicial economy. The three-month

continuance sought here requires only a small investment of time
for a potentially large savings in Commission resources.

 For the foregoing reasons the following order is

appropriate:

                         ORDER

 1. Emery's motion for a continuance of the scheduled hearing

is granted.

 2. The hearing scheduled to commence on March 13, 1990, is

cancelled.

 3. The hearing will now commence at the following time and

place:

      9:00 a.m., Tuesday, June 5, 1990
      The hearing will contiue on the
      following dates:

      June 5, 1990 through June 8, 1990
      June 11, 1990 through June 16, 1990
      June 18, 1990 through June 23, 1990
      Carbon County Court Complex
      (Check with District Court Clerk
        for directions to courtroom)
      149 East 100 South
      Price, Utah

 Any person intending to attend this hearing who requires

special accessibility features and/or any auxiliary aids, such as
sign language interpreters, must inform the Commission in advance
of those needs. Thus, the Commission may, subject to the
limitations of 29 C.F.R. 2706 150(a)(3) and 160(e), ensure
access for any handicapped person who gives reasonable advance
notice.

                                 John J. Morris
                                 Administrative Law Judge