Emery Mining Corporation And/Or Utah Power & Light Company

Plain-English summary

Emery Mining Corporation and Utah Power & Light Company asked the judge to exclude the Secretary's report about the 1984 Wilberg Mine Fire from evidence in related contest and civil penalty proceedings. The judge found that the report contained factual and legal conclusions without an adequate apparent foundation, relied heavily on hearsay, and was prepared by the same agency pursuing enforcement. He concluded that the report's trustworthiness was not sufficient for admission at the hearing and refused the proffered exhibit. The order addressed evidence only and did not decide the underlying citation or penalty disputes.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.60(a) and 2700.64; 5 U.S.C. § 556; 30 U.S.C. §§ 801 and 815(d)
• Outcome: The proffered Wilberg Mine Fire investigation report was excluded from evidence.
• Key point: An agency investigation report may be excluded when its apparent foundation and trustworthiness are inadequate for a fair evidentiary hearing.

Full text (FMSHRC public release)

CCASE:
EMERY MINING V. SOL
DDATE:
19880520
TTEXT:

Page 2

~689
FMSHRC-DC
May 20, 1988

EMERY MINING CORPORATION CONTEST PROCEEDINGS
AND/OR UTAH POWER & LIGHT
COMPANY, Docket No. WEST 87-130 R
Contestant Citation 2844485; 3/24/87
v. Docket No. WEST 87-131-R
Order 2844486; 3/24/87
SECRETARY OF LABOR, Docket No. WEST 87-132-R
MINE SAFETY AND HEALTH Order 2844488; 3/24/87
ADMINISTRATION (MSHA),
Respondent Docket No. WEST 87-133-R
and Order 2844489; 3/24/87
UNITED MINE WORKERS OF
AMERICA (UMWA), Docket No. WEST 87-134-R
Intervenor Citation 2844490; 3/24/87

Docket No. WEST 87-155-R Docket No. WEST 87-135-R
Citation 2844811; 03/24/87 Citation 2848891; 03/24/87

Docket No. WEST 87-156-R Docket No. WEST 87-136-R
Order 2844813; 3/24/87 Citation 2844492; 3/24/87

Docket No. WEST 87-157-R Docket No. WEST 87-137-R
Order 2844815; 3/24/87 Citation 2844493; 3/24/87

Docket No. WEST 87-158-R Docket No. WEST 87-144-R
Citation 2844816; 3/24/87 Order 2844795; 3/24/87

Docket No. WEST 87-159-R Docket No. WEST 87-145-R
Citation 2844817; 3/24/87 Order 2844798; 3/24/87

Docket No. WEST 87-160-R Docket No. WEST 87-146-R
Order 2844822; 3/24/87 Order 2844798; 3/24/87

Docket No. WEST 87-161-R Docket No. WEST 87-147-R
Order 2844823; 3/24/87 Order 2844800; 3/24/87

Docket No. WEST 87-163-R Docket No. WEST 87-150-R
Citation 2844826; 3/24/87 Order 2844805; 3/24/87

Docket No. WEST 87-243-R Docket No. WEST 87-152-R
Citation 2844828; 8/13/87 Order 28444807; 3/24/87

Docket No. WEST 87-244-R Docket No. WEST 87-153-R
Citation 2844830; 8/13/87 Order 2844808; 3/24/87

Docket No. WEST 87-245-R
Citation 2844831; 8/13/87

Docket No. WEST 87-246-R
Citation 2844832; 8/13/87

Docket No. WEST 87-247-R
Citation 2844833; 8/13/87

Page 3

Docket No. WEST 87-248-R
Citation 2844835; 8/13/87
Docket No. WEST 87-249-R
Citation 2844837; 8/13/87

Page 4

~690
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 87-208
Petitioner A.C. No. 42-00080-03578

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

                           Docket No. WEST 88-25

EMERY MINING CORPORATION, A.C. No. 42-00080-03584
UTAH POWER & LIGHT COMPANY,
Respondent Wilberg Mine
and
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor

                          ORDER

 The matter at issue involves a motion in limine filed by Emery

Mining Company, (EMC), to exclude as evidence a document entitled
"Report of Investigation, Underground Coal Mine Fire, Wilberg Mine,
I.D. No. 42-00080, Emery Mining Corporation, Orangeville, Emery County,
Utah, December 19, 1984", hereafter referred to as "Wilberg Mine Fire
Report" or "Report".

 The Secretary and Emery have filed briefs in support of

their positions.

 The admissibility of the Report was set for oral argument but

in the interest of informed litigation planning the parties waived
oral arguments and submitted the issues.

 As a foundational matter the parties also stipulated that Donald W.

Huntley, a witness offered by the Secretary, would testify and identify
the Wilberg Mine Fire Report as the document prepared by the Secretary.
Further, the document is the final and official MSHA report on the fire
and that it was released on August 7, 1987.

 The abstract of the report indicates that it deals with the

Wilberg mine fire that occurred on December 19, 1984. The authors
are identified as Cavanaugh, Denning, Huntley, Oakes and Painter.
The originating office is that of the Administrator, Coal Mine Safety
and Health, 4015 Wilson Boulevard, Arlington, Virginia 22203.

 The table of contents of the report (omitting page references)

reads as follows:

Page 5

~691
ABSTRACT
GENERAL INFORMATION

  Mining Methods
  Mine Inspections
  Roof Support
  Ventilation
  Combustible Material and Rock Dusting
  Electricity
  Fire Protection and Emergency Procedures
  Designated Escapeways
  Explosives
  Transportation and Haulage
  Communications
  Oil Wells and Gas Wells
  Smoking
  Mine Rescue and Self-Rescuers
  Identification Check System
  Training Program
  Emergency Medical Assistance
  Illumination
  Mine Drainage System

       FIRE, FIRE FIGHTING, SEARCH AND RESCUE ATTEMPTS,
                    AND SEALING OF THE MINE

  Fire
      Activities Prior to the Fire
      Discovery of the Fire
      Activities on the 5th Right Section and Escape
      of only survivor
      Mine Evacuation and Notification of Mine Emergency

Personnel
Activities of MSHA Personnel
Fire Fighting
Initial Fire Fighting Activities
Restoration of Water and Additional Water Problems
Fire Fighting Activities and Advance of the Fire
Search and Rescue Attempts
Initial Explorations
Mine Rescue Team Response
Sealing of the Mine

                  RECOVERY AND INVESTIGATION

  Recovery
     Recovery of the Mine
     Recovery Entries
     Recovery of the Fire Area
  Investigation of the Accident
     Participants
     Sworn Statements
     Underground Investigation

Page 6

~692
Extensive Testing and Involvement of Experts
and Specialists
Independent Expert Analysis

          DISCUSSION AND EVALUATION

Longwall Panel Development
Ventilation of 5th Right
Ventilation Control devices for 5th Right
Escapeways and Travelways
Escapeways
5th Right Return
Bleeder Entries
Fire Fighting and Evacuation Training
Products of the Fire
Contaminates From the Fire
Mine Equipment and Substances
Carbon Monoxide, Oxygen, and Carbon Dioxide
Carbon and Soot
Self-Rescuers - Location and Use
Self-Contained Self-Rescuers
Filter Self-Rescuers
Use of Rescue Devices by the Victims
Electricity
Examination and Maintenance of Electric Equipment
Location of the Source of Fire
Location of Fire when First Observed
Fire Spread in the Direction of Airflow
Burn Pattern of the Fire
Cable Damage
Energized Equipment
Source of Fire - Air Compressor
Underground Use of Air Compressors
Installation and Ventilation - Air Compressor Station
Examination and Maintenance of 5th Right Air Compressor
History of 5th Right Air Compressor
Recovery of the Air Compressor
Air Compressor Operating While Flames Present
Indications of Sudden Over-Pressure
Evidence of Localized High Temperatures
Oil Used in 5th Right Air Compressor - An Accelerant
Electrical Deficiencies - Over-Temperature Safety
Switch and On/Off Switch
Other Potential Fire Sources Considered by MSHA
Spontaneous Combustion
Smoking Articles
Diesel Equipment
Arson or Sabotage
Electrical Circuits and Equipment
No. 4 Entry - High-Voltage Circuits and Equipment
High-Voltage Cable
Belt Drive Power Center

Page 7

~693
Protective Switchgear
No. 4 Entry - Low-Voltage Circuits and Equipment
Roof Drill Cable and Satellite Pump Cable
Air Compressor Cable
Motor Starter Cable
EMC Source of Fire Scenario
Belt Entry - Low-Voltage Circuits and Equipment
Belt Drive Motor Starter
Belt Drive Motor Cables and Electric Enclosure Cable
Belt Control Cables
Belt Take-Up and Power Cable
Super 500 and Protective Line Starter
5th Right Belt Conveyor
Belt Fire Detection and Fire Suppression
Fire Detection System
Fire Suppression System

   CONTRIBUTORY VIOLATIONS AND MSHA ACTIONS

Contributory Violations
Actions Taken by MSHA to Reduce the Likelihood of Similar
Occurrences

                   CONCLUSION

Conclusion

                    APPENDICES

Appendix A Victim Data Sheets
Appendix B Rescue Team Members Who Participated in the
Rescue and Recovery Operation
Appendix C Persons Who Participated in the Investigation
Appendix D Persons Who Provided Sworn Statements During
the Investigation
Appendix E Mine Fan Pressure Recording Chart Dated 12/19/84
Appendix F Copy of Kenneth Blake's Handwritten Statement
Dated 12/19/84
Appendix G Wilberg Mine Fire: Contamination of the
5th Right Section Report
Appendix H Wilberg Mine Fire: Cause, Location, and Initial
Development by John Nagy
Appendix I Wilberg Mine Disaster Self-Rescuer Evaluation
Appendix J Ingersoll-Rand Models 5M, 7M, and 9M Air
compressor Operating and Maintenance Manual
Appendix K PTL-Inspectorate, Inc., Report of Testing and
Analysis of Air Compressor Parts from Wilberg
Mine Fire
Appendix L Tests of similar Air Compressor
Appendix M Calculated Temperatures Inside Air Compressor Station
Appendix N Wilberg Mine Fire Investigation: Lubricating
Oil Samples Tests

Page 8

~694
Appendix 0 Detailed Account of Recovery Activities
Appendix P Test Results, Evaluation, and Discussion of
Potential Electrical Sources of Fire
Appendix Q Electrical Wiring Diagrams and UP&L/CRSP Power Report
Appendix R Test and Evaluation of Fire Detection and Fire
Suppression Systems
Appendix S Test and Evaluation of Mine Communication System
Appendix T Reports Evaluating the EMC Source of Fire Scenario
Appendix U Selected Photographs Taken During the Investigation
Appendix V Copies of the Contributory Citations and Orders
Issued as a Result of the Investigation
Appendix W Mine Map - Entire Mine
Appendix X Mine Map - 5th Right to 8th Right Panels and
Ventilating Air Current Directions
Appendix Y Mine Map Showing Location of Detailed
Information Maps
Appendix Z Detailed Information Mine Maps
Appendix Zl Mine Map (Detail A) - Detailed Information of
fire fighting activities and spread of fire in
1st North between crosscuts 37 and 43, as
gathered by the investigation team
Appendix Z2 Mine Map (Detail B) - Information of the
initial fire area in 1st North, as gathered by
the investigation team
Appendix Z3 Mine Map (Detail C) - Detailed information of
5th Right section between crosscuts 2 and 7, as
gathered by the investigation team
Appendix Z4 Mine Map (Detail D) - Detailed information of
5th Right section between crosscuts 8 and 21,
as gathered by the investigation team
Appendix Z5 Mine Map (Detail E) - Detailed information of
5th Right section between crosscuts 20 and 23,
as gathered by the investigation team
Appendix Z6 Mine Map (Detail F) - Detailed information of
5th Right section between shields 20 and 115,
as gathered by the investigation team
Appendix Z7 Mine Map (Detail G) - Detailed information of
5th Right return between crosscuts 18 and 23,
as gathered by the investigation team
Appendix Z8 Mine Map (Detail H) - Detailed information of
bleeder entry for 5th Right section between 6th
and 7th Rights, as gathered by the investigation team.

Page 9

~695
Discussion and Evaluation of Report

 The Commission has previously ruled that properly admitted hearsay

testimony, and the reasonable inferences drawn from it, may constitute
substantial evidence if the hearsay testimony is surrounded by adequate
indicia of probativeness and trustworthiness. It is accordingly
necessary to explore the crucial issue of trustworthiness to avoid
unfairness to Emery and UP&L at an evidentiary hearing. Mid Continent
Resources, Inc., 6 FMSHRC 8, 12n. 7, aff'd, 689 F.2d 632 (6th Cir. 1982),
cert denied, U.S. , 77 L.Ed. 2d 299 (1983); Richardson v. Perales,
402 U.S. 389, (1971); Commission Rule 60(a), 29 C.F.R. $ 2700.60(a). To
determine such issues it is necessary to review in detail the
proffered exhibit.

 Basically, the Report is a characterization of the events of the

Wilberg Fire. It focuses on MSHA's enforcement actions regarding the
alleged regulatory violations now in dispute and pending for a hearing.
For example, see pages 88-92 of the Report which summarize the severity
of the fire and specify alleged contributory violations of the Mine Act
and implementing MSHA regulations. The MSHA officials who signed the
citations and orders (James E. Kirk and Lawrence J. Ganser) are listed in
Appendix C of the Report as persons who participated in the investigation.
MSHA's dual roles both as author of the report and as regulator are thus
inextricably connected. Thus, I believe the Secretary's Report is at the
opposite end of the reliability spectrum from the routine medical reports
prepared by independent physicians deemed admissible by the Supreme Court
in Richardson v. Perales, supra.

 Further in support of the view that the exhibit should be excluded

I find the Report is a wealth of factual and legal conclusions simply
stated but without any apparent foundation. For example, the GENERAL
INFORMATION 1/ section contains certain detail relating to Emery, its
principal officers and mine management and it deals with the history
of the mine. The section has 19 subparts. A reading of these subparts
shows they should not be received in evidence without further foundation.
For example,

DESIGNATED ESCAPEWAYS 2/ reads as follows:

      Generally, the two designated escapeways from
      working sections to the surface were the diesel
      roadway (intake)

1/ Pages 1-7.
2/ Page 5.

Page 10

~696
and the belt conveyor entries. The escapeways
were parallel and adjacent in the 1st North
areas of the mine. Concrete block stoppings,
aluminum overcasts and material doors were used
to separate the two escapeways in the 1st North
area. Ladders or ramps were provided at overcasts
to facilitate travel over these structures. There
were deficiencies in both the route and condition
of these escapeways, details of which are discussed
in other parts of the report.

 Needless to say the deficiencies, if any, in the escapeways are

contested issues in WEST 87-133-R, WEST 87-157-R, WEST 87-163-R and in
penalty case WEST 87-208.

   Further, the subpart dealing with SMOKING 3/ provides as follows:

        EMC had not submitted to MSHA a search program
        to ensure that smoking articles were not taken
        into the mine. A search program had been
        submitted by Peabody Coal Company and approved
        by MSHA on May 8, 1974, but EMC had not formally
        adopted the program. Records indicating that
        searches for smoking articles were being made
        were contained in a book on the surface; however,
        sworn statements from several miners indicated
        that they had not been searched for several months.

 Again, these are contested issues in WEST 87-156-R and in the penalty

case WEST 87-209.

 Further, the subpart dealing with a TRAINING PROGRAM 4/ reads

as follows:

        EMC's training and retraining plan, which was
        submitted in accordance with 30 CFR Part 48, was
        approved by MSHA on April 28, 1983. According
        to sworn statements, instruction was being given
        in accordance with this plan. However, the SCSR
        training was not adequate and is discussed in
        other parts of this report.

 Again, these issues are contested in WEST 87-134-R and the penalty

case, WEST 87-208.

 Further, and by way of illustration, it is apparent that a closely

contested issue, both legally and factually, focuses on the source of the
fire. The Report deals extensively with

3/ Page 6.
4/ Page 7.

Page 11

~697
MSHA's analysis of how the fire started 5/, considers and eliminates other
potential sources 6/ and reviews the EMC version. 7/

 These assertions may or may not be true but credibility issues abound

in the case.

 It is the judge's view that the hearing such as involved here,

conducted under the Administrative Procedure Act, entitles mine operators
to conduct such cross-examination "as may be required for a full and true
disclosure of the facts." 5 U.S.C. $ 556. Hearing procedures under the
Act must comport with procedural due process and be fundamentally fair.
Southern Ohio Coal Co. v. Donovan, 774 F.2d 693 (6th Cir. 1985). See
also Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980).

 The Secretary contends the Report is admissible because it is a

public report investigated and issued under Section 103 of the Act. 8/

 I agree the Secretary certainly has the statutory authority to

disseminate information relating to the causes of accidents and disasters,
but the trustworthiness limitation on its admissibility in an
administrative hearing has been expressly articulated by the Supreme Court
in Richardson v. Perales, 402 U.S. at 403-405. In addition, while the
Secretary may disseminate information to the public his posture here is
substantially different in that in these proceedings he is seeking
substantial monetary penalties against Emery and UP&L.

 I agree with the case law cited by the Secretary that an investigative

report prepared by a government agency pursuant to

5/ Page 56-68.
6/ Page 68.
7/ Page 79-80.
Section 103 provides in relevant part:

 INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING

SEC. 103. (a) Authorized representatives of the Secretary of the Secretary
of Health, Education, and Welfare shall make= frequent inspections and
investigations in coal or other mines each year for the purpose of (1)
obtaining, utilizing, and disseminating information relating to health and
safety conditions, the causes of accidents, and the causes of diseases and
physical impairments originating in such mines, (2) gathering information
with respect to mandatory health or safety standards, (3) determining
whether an imminent danger exists, and (4) determining whether there is
compliance with the mandatory health or safety standards or with any
citation, order, or decision issued under this title or other requirements
of this Act. . . . (emphasis added).

Page 12

~698
law creates a presumption of a admissibility. However, often this
presumption of trustworthiness is rebutted on the basis of factors which
are present in this case. For example, in Miller v. Caterpillar Tractor
Co., 697 F.2d 141, (6th Cir. 1983) the Court observed that the
investigative report which was refused admission was prepared by [the] ...
United States Bureau of Mines, to authority vested by statute, 30 U.S.C.
$$ 3- and 5 ... that the investigative report in Miller was prepared
pursuant to a duty imposed by law was the beginning, not the end, of the
trustworthiness analysis. In Miller, the Court excluded the Bureau
of Mines report relying on a determination of untrustworthiness.

 Miller is now reviewed in detail since it illustrates some of the

issues that arose in that case. We will consider each of the six factual
determinations made by the trial court in Miller to determine a lack of
trustworthiness.

 First, the investigation commenced approximately three days after the

accident occurred. The writer does not consider that the time lapse is a
factor in the Wilberg Fire Report. The fire commenced December 19, 1984
and MSHA's personnel were present at the scene that day.

9/ 30 U.S.C. $ 3 provides, in part:

      It shall be the province and duty of the Bureau
      of Mines, subject to the approval of the
      Secretary of the Interior, to conduct inquiries
      and scientific and technologic investigations
      concerning mining, and the preparation, treatment,
      and utilization of mineral substances with a view to
      improving health conditions, and increasing safety. . .
      .                                     (emphasis added)

30 U.S.C. $ 5 provides:

      The Director of the Bureau of Mines shall
      prepare and publish, subject to the direction
      of the Secretary of the Interior, under the
      appropriations made from time to time by
      Congress, reports of inquiries and investigations,
      with appropriate recommendations of the bureau,
      concerning the nature, causes, and prevention of
      accidents, and the improvement of conditions,
      methods, and equipment, with special reference to
      health, safety, and prevention of waste in the
      mining, quarrying, metallurgical, and other mineral
      industries; the use of explosives and electricity,
      safety methods and appliances, and rescue and
      first-aid work in said industries; the causes
      and prevention of mine fires; and other subjects
      included under the provisions of sections 1, 3,
      and 5 to 7 of this title.   (emphasis added)

Page 13

~699
The second factor in Miller was that "the author of the report
possessed no first hand knowledge of the incident". In the instant case
it is not facially shown what knowledge the authors had concerning the
fire.

 The third factor is that "the author of the report relied upon

information received from various other persons". This element is
apparent from the context of the Report.

 Fourth, "the sources of information were suspect as to hearsay".

While hearsay is admissible the hearsay here no doubt forms bases
that are supportive of MSHA's position.

 Fifth, Miller's author was a mining engineer and was not facially

qualified to render opinions and conclusions relating to mechanical
operations and/or failures. The writer finds this facet is most
troublesome in this case. The only reference to the qualifications of
the experts and specialists appears in the Report. 10/ Initially, the
Report furnished a broad umbrella for the experts and specialists. It
reads:

      Extensive Testing and Involvement of Experts
                    and Specialists

      The underground investigation consisted of
      detailed examination of the affected areas
      of the mine, particularly the accident area
      to determine the origin of the fire and the
      circumstances surrounding it. Extensive
      evidence was gathered and equipment was
      tested. All of the information and data was
      thoroughly analyzed. The investigation was a
      painstaking process which involved many experts
      and specialists from the various segments of MSHA.
      Other government entities and the private sector
      were also involved. A structured analysis (fault
      tree) was conducted and consisted of potential
      sources based on examinations and laboratory
      test results, analysis of sworn statements,
      and other physical factors and phenomena of the
      mine fire. Special laboratory services from
      the FBI, the Bureau of Mines, and MSHA Technical
      Support were obtained for the expert examination of
      many important items.

Further, concerning an independent expert the Report reads:

               Independent Expert Analysis

      MSHA engaged John Nagy as a consultant to perform
      an independent study and analysis of the Wilberg
      fire. Mr. Nagy is a renowned mine expert, having
      spent his entire

10/ Page 28, 29.

Page 14

~700
42-year career, most of it with the Bureau of Mines,
researching and investigating mine fires and
explosions. Mr. Nagy's report of his findings
can be found in Appendix H.

      The services of PTL-Inspectorate, Inc. (PTL) were
      also engaged to perform tests and analysis on
      critical compressor parts. Their independent
      opinions and conclusions are discussed in the
      Discussion and Evaluation section of this report.
      PTL's test results can be found in Appendix K.

 John Nagy may well be a "renowned mine expert" but his expertise is

not shown on page 29 of the Report, nor in his findings in Appendix H.

 Sixth, in Miller the report "included a conclusion as to the cause of

an accident which was not independently verifiable". In this case the
Report contains a wealth of conclusions not independently verifiable. See
also McKennon v. Skil Corporation, 638 F.2d 270, 278 (1st Cir. 1981), a
products liability case, where the Court excluded as untrustworthy [under
Rule 803(8), FRE] an accident report prepared by the Consumer Product
Safety Commission.

 The Secretary, in support of his position on admissibility and

trustworthiness cites Richardson v. Perales, supra, as well as In Re
Japanese Electronics Products, 723 F.2d 238, 265 (3rd Cir. 1983);
Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3rd Cir.
1978); and Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467, 473
(3rd Cir. 1950); Robbins v. Whelan, 653 F.2d 47 (1st Cir. 1981); cert
denied 454 U.S. 1123, (1981). He further seeks to distinguish Miller
from the facts in the Wilberg Report.

 The Supreme Court case, Richardson v. Perales, 11/ has been discussed,

supra. It supports Emery rather than the Secretary, 402 U.S. at 403-405.

 In Re Japanese Electronics Products 12/ merely states the general law

that an investigative report prepared by a government agency creates a
presumption of admissibility. For the reasons previously outlined I
believe this presumption has been overcome.

 In Melville v. American Home 13/ the Court ruled that documents

prepared by the FAA pursuant to FAA regulations were admissible unless the
party challenging the directives comes

11/ Medical reports admitted.
12/ Findings by Japanese Fair Trade Commission pursuant to Japanese
Anti-Trust Law held admissible.
13/ Air worthiness Directives prepared by FAA held admissible.

Page 15

~701
forward with evidence impuning their trustworthiness, 584 F.2d at 1316.
Air worthiness directives are vastly different from the Fire Report here.
Further, the Report itself, as previously noted contains the material
supporting its own exclusion.

 In Moran v. Pittsburgh-Des Moines 14/ the Court allowed in evidence a

report on the cause of a gasoline tank explosion. However, the Secretary's
reliance on Moran is misplaced. The Moran case arose before Rule 803(8)(c)
and its trustworthiness standard was adopted. Specifically, it arose under
the old business record statute. As the Sixth Circuit recently stated
the "precedential value of Moran is suspect. ..." Miller v. Caterpillar
Tractor Co., 697 F.2d at 144 n. 1.

 In Robbins v. Whelan 15/ the Court ruled that the jury should have

been permitted to hear evidence of the braking performance of new cars.

 The Secretary also seeks to distinguish Miller. She claims Miller

is not persuasive because the engineer who drafted the report did not
arrive on the scene until three days after the accident. At that time the
accident had been cleared up. Further, the engineer based her findings
solely on interviews. In contrast, the Secretary asserts her report is
based on an investigation by a "team of experienced investigators and
experts". As previously noted the experience and skill of the
investigators is not facially apparent.

 For the reasons previously stated I conclude that the Wilberg Mine

Fire Report should be and is excluded as evidence.

 Additional issues urged by Emery should be considered. Emery argues

the Report is untrustworthy because of political motivation. This arose
because the report was prepared during Congressional hearings relating to
the fire. It is claimed that the Congressional committee questioned MSHA's
ability to protect miners, its ability to conscientiously enforce the Act,
its own alleged culpability and the adequacy of its accident investigation.

 Political motivation can be a basis to exclude government reports. 16/

However, only minimal portions of the transcript of the hearings were filed
in this case. It is accordingly not possible to form a conclusion that the
report was politically motivated. Emery's contentions in this respect are
accordingly rejected.

14/ Bureau of Mines report on cause of gasoline tank explosion admitted.
15/ The Appellate Court ruled it was error to exclude Department
of Transportation braking performance report.
16/ Baker v. Firestone Tire and Rubber Co., 793 F. 2d 1196, 1199 (11th Cir.
1986); United States v. Durrani, 659 F. Supp. 1183 (D. Conn. 1987).

Page 16

~702
Emery also contends that the company and a number of its former
employees are currently the subject of a criminal investigation being
conducted by MSHA for submission to the U.S. Attorney for the District of
Utah. Contrary to Emery's views, the admissibility of the Report is not
related to the criminal investigation. Rather, its admissibility is
determined by the Mine Act, the Commission's rules, and the case law
precedent cited above.

   Accordingly, for the reasons stated herein I enter the following:

                            ORDER

 The proffer of the exhibit 17/ identified as "Report of Investigation,

Underground Coal Mine Fire, Wilberg Mine, I.D. No. 42-00080, Emery Mining
Corporation, Orangeville, Emery County, Utah, December 19, 1984" is
refused.

                            John J. Morris
                            Administrative Law Judge

Distribution:

Timothy Biddle, Esq., Thomas Means, Esq., Susan Chetlin, Esq.,
Crowell & Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C.
20004-2505

James Crawford, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203

Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth
Street, N.W., Washington, D.C. 20005

17/ The exhibit is filed in Official Commission File No. 7 of
WEST 87-130-R.