Local Union 2333, District 29, United Mine Workers of America (UMWA) v. Ranger Fuel Corporation

Plain-English summary

The United Mine Workers sought compensation for miners idled after MSHA issued an imminent-danger withdrawal order at Ranger Fuel's underground coal mine. The Commission held that Ranger could not challenge the validity of the uncontested withdrawal order in the later compensation case, and that the record supported a causal connection between the order and the mine's inadequate bleeder system. It affirmed the compensation award and rejected Ranger's challenge to prejudgment interest. The Commission modified only the interest calculation, directing use of the formulas identified in its decision.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.329; 30 U.S.C. § 817(a); 30 U.S.C. § 817(e)(1)
• Outcome: The compensation award was affirmed, but the interest calculation was modified.
• Key point: An operator that did not timely contest an imminent-danger order could not collaterally attack that order in a later section 111 compensation proceeding.

Full text (FMSHRC public release)

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                            March 8, 1990

LOCAL UNION 2333. DISTRICT 29,
UNITED MINE WORKERS OF AMERICA
(UMWA)

v. Docket No. WEVA 86-439-C
RANGER FUEL CORPORATION

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

            DECISION

BY THE COMMISSION:

This compensation proceeding arising under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act" or
"Act"), is before the Commission for the second time. The United Mine
Workers of America ("UMWA") seeks compensation from Ranger Fuel Corporation
("Ranger") under the third sentence of section 111 for an idlement of
miners following the issuance of an imminent danger withdrawal order
pursuant to section 107(a) of the Act. 1/ Previously,

1/ Section 111 of the Mine Act provides in relevant part as follows:

           [1] If a coal or other mine or area of such mine
 is closed by an order issued under section [103] ...,
 section [104] ..., or section [107] of this [Act], all
 miners working during the shift when such order was
 issued who are idled by such order shall be entitled,
 regardless of the result of any review of such order,
 to full compensation by the operator at their regular
 rates of pay for the period they are idled, but for
 not more than the balance of such shift. [2] If such
 order is not terminated prior to the next working

shift, all miners on that shift who

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on interlocutory review, we held that Ranger's payment of a civil penalty
for a citation issued subsequent to the issuance of the imminent danger
withdrawal order precluded Ranger from contesting in this

   are idled by such order shall be entitled to full
   compensation by the operator at their regular rates
   of pay for the period they are idled, but for not
   more than four hours of such shift. [3] If a coal
   or other mine or area of such mine is closed by an
   order issued under section [104] ... or section [107]
   of this [Act] for a failure of the operator to comply
   with any mandatory health or safety standards, all
   miners who are idled due to such order shall be fully
   compensated after all interested parties are given
   an opportunity for a public hearing, which shall be
   expedited in such cases, and after such order is
   final, by the operator for lost time at their regular
   rates of pay for such time as the miners are idled by
   such closing, or for one week, whichever is the lesser.
   [4] Whenever an operator violates or fails or refuses
   to comply with any order issued under section [103]
   ..., section [104] ..., or section [107] of this [Act],
   all miners employed at the affected mine who would have
   been withdrawn from, or prevented from entering, such
   mine or area thereof as a result of such order shall be
   entitled to full compensation by the operator at their
   regular rates of pay, in addition to pay received for
   work performed after such order was issued, for the
   period beginning when such order was issued and ending
   when such order is complied with, vacated, or
   terminated. ...

30 U.S.C. § 821 (sentence numbers added).

Section 107(a) of the Act provides in pertinent part:

           If, upon any inspection or investigation of a
 coal or other mine which is subject to this chapter,
 an authorized representative of the Secretary finds
 that an imminent danger exists, such representative
 shall determine the extent of the area of such mine
 throughout which the danger exists, and issue an
 order requiring the operator of such mine to cause
 all persons, except those referred to in section
 [104(c)] of this title, to be withdrawn from, and



  to be prohibited from entering, such area until an
  authorized representative of the Secretary determines
  that such imminent danger and the conditions or
  practices which caused such imminent danger no longer
  exist. ...

30 U.S.C. § 817(a).

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compensation proceeding the violation that was alleged in the citation.
We further held, however, that Ranger could challenge in this proceeding
the causal relationship between the alleged violation and the issuance
of the imminent danger withdrawal order. We therefore remanded this
matter for further proceedings. Loc. U. 2333, UMWA v. Ranger Fuel Corp.,
10 FMSHRC 612 (May 1988) ("Ranger Fuel 1"). On remand, Commission
Administrative Law Judge Gary Melick held that the imminent danger
withdrawal order had not been timely contested by Ranger and had become
final for purposes of section 111. Finding that there was a causal nexus
between the withdrawal order and the violation alleged in the citation,
the judge awarded the complainants compensation and prejudgment interest.
10 FMSHRC 1474 (October 1988)(ALJ). We granted Ranger's petition for
discretionary review.

 The principal issues presented on review are: whether an operator

may challenge in a compensation proceeding the validity of an imminent
danger withdrawal order despite the operator's failure to contest the
order pursuant to section 107(e)(1) of the Mine Act (n. 3 infra); whether
there was a causal "nexus" between the withdrawal order and the violation
alleged in the subsequently issued citation; and whether prejudgment
interest may be awarded in a compensation proceeding. For the reasons
that follow, we affirm the judge's award of compensation and interest
but direct that interest be calculated according to the formula set forth
by the Commission in Secretary on behalf of Bailey v. Arkansas-Carbona Co.,
5 FMSHRC 2642 (December 1983), and, as applicable, Loc. U. 2274, UMWA v.
Clinchfield Coal Co.. 10 FMSHRC 1493 (November 1988) ("Clinchfield II"),
aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, No. 88-1873 (D.C. Cir.
February 9, 1990). See also 54 Fed. Reg. 2226 (January 19, 1989).

                I.

 On May 29, 1986, William Uhl, an inspector of the Department of

Labor's Mine Safety and Health Administration ("MSHA"), conducted an
inspection of Ranger's Beckley No. 2 underground coal mine located in
Beckley, West Virginia. Inspector Uhl entered the mine at approximately
8:30 a.m. and proceeded to the 7 East section. While inspecting the
longwall in that section, Uhl heard what he termed a "large fall" in the
gob. Tr. 100-01. At about 10:00 a.m., Uhl arrived at a location in the
Number 3 Entry on the tail side of the longwall immediately adjacent to
the roof fall. Using a hand-held methane detector, he found the level of
methane gas to be in excess of five percent. (Methane becomes explosive
at a five percent concentration. Ranger Fuel I, supra, 10 FMSHRC at 614,
citing Monterey Coal Co., 7 FMSHRC 996, 1000-01 (July 1985).) Uhl testified
that the concentration of methane was too "heavy" for him to attempt
further readings inby. However, he took additional readings outby, where

the methane content was approximately one percent lower.

Uhl believed that the immediate cause of the methane concentration

was a sudden inundation resulting from the roof fall that he had heard and
he also believed that the mine's ventilation bleeder system was not working
properly to dissipate the methane, due to a water blockage in a passageway.
Tr. 99, 102.04, 106.12, 115, 118, 125, 148. At 11:30 a.m.,

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Uhl issued imminent danger withdrawal order No. 2577281 to Ranger pursuant
to section 107(a) of the Mine Act (n. 1 supra). The order states in part:

  An explosive mixture of methane gas in excess of
  five (5) per[c]ent was present in the seven east ...
  0-13-0 section in the number three ... entry side of
  the longwall ... extending inby the face when tested
  with an approved E.70 methane detector (calibrated
  05-22-86). ...

As a result, Ranger withdrew all miners then underground.

 Later that same day, Kenneth Perdue, Ranger's senior safety

supervisor, went to the 7-East section with two other foremen and took
methane readings between 2:00 and 4:00 p.m. Perdue testified that there
was not an explosive mixture present in the locations that he sampled and
that none of his methane readings exceeded two to three percent. Perdue
acknowledged, however, that excessive levels of methane were found when a
gob probe was extended into the gob area. The highest methane reading
obtained by Perdue using the gob probe was four percent. Perdue also
testified that his inspection of the bleeder system showed sufficient
ventilation and that the bleeder system was doing what it was supposed
to do. In Perdue's opinion, Inspector Uhl's five percent methane reading
was caused by the roof fall and because the bleeder system had not had
enough time to dissipate the methane.

Between 6:00 and 8:00 p.m. Inspector Uhl's Supervisor, Jules Gautier,

arrived at the mine with a group of MSHA inspectors and proceeded
underground to evaluate the bleeder system and determine what area was
affected. Gautier testified that, at that time, further methane samples
indicated that there was still an explosive mixture of methane present
and, due to the water accumulation resulting in a blockage, he could not
effectively evaluate the bleeder system.

 The next day, May 30, 1986, MSHA personnel met with Ranger officials

but did not go underground to inspect the mine. Ranger requested that
the withdrawal order be modified to allow the miners in other sections
to return to work. The request was denied because, according to Gautier,
the methane samples taken the previous evening showed an explosive mixture
of methane in the tail entries and, due to the problems with the water
accumulation, it was not known to what extent methane was present. On
May 31, 1986, after another visit by MSHA inspectors, MSHA modified the
withdrawal order, permitting the west and north end of the mine to resume
operation because the methane was no longer in the explosive range in the
tail entry. The order remained in effect for the 7 East and 8 East

sections, however, because the inspectors still could not reach the
bleeder area.

On June 3, 1986, Gautier received an oral report concerning the

results of methane bottle samples that had been collected on May 29 and 31,
1986. In Gautier's view, the report showed that two days after the initial
outburst of methane, the cited section still had methane in the three to
four percent range. Tr. 32. As a result of this report and a

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bottle sample taken by Uhl on May 29 indicating 5.56 percent methane,
Gautier instructed Uhl to issue Ranger a citation, pursuant to section
104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging an inadequate bleeder
system in violation of 30 C.F.R. § 75.329. 2/ The citation, issued on
June 3, states:

  Based on laboratory analysis of an air sample collected
  on 05/29/86 ... the bleeder system failed to function
  adequately to carry away an explosive mixture of
  methane in the tail entries of the 7 East longwall
  section (013-0) ... extending inby for at least 500
  feet. Analysis indicated the methane content to be in
  an explosive mixture of 5.56% CH4 with 19.75% oxygen
  present. The citation was a factor that contributed to
  the issuance of imminent danger order No. 2577281 date
  05-29.86, (therefore no abatement time is set.)

(Emphasis added.) Gautier included the underlined sentence in the citation
because he believed that the bleeder system was not working effectively and
that there was not enough air in the affected area to dilute the methane
and render it harmless. Gautier testified that usually a bleeder system
takes care of the methane "pretty quick" but that in this instance it took
more than two days to get the methane out of the tail entries.

On June 4, 1986, MSHA terminated the section 107(a) withdrawal order

and the section 104(a) citation following a determination that the methane
level in the mine was below the maximum permissible level as a

2/ Section 75.329, which restates section 303(z)(2) of the Mine Act,
30 U.S.C. § 863(z)(2), provides in pertinent part:

            On or before December 30, 1970, all areas from
  which pillars have been wholly or partially extracted
  and abandoned areas ... shall be ventilated by bleeder
  entries or by bleeder systems or equivalent means, or
  be sealed.... When ventilation of such areas is
  required, such ventilation shall be maintained so as
  continuously to dilute, render harmless, and carry
  away methane and other explosive gases within such
  areas and to protect the active workings of the mine
  from the hazards of such methane and other explosive
  gases. Air coursed through underground areas from
  which pillars have been wholly or partially extracted
  which enters another split of air shall not contain
  more than 2.0 volume per centum of methane, when

tested at the point it enters such other split. When
sealing is required, such seals shall be made in an
approved manner so as to isolate with explosion-proof
bulkheads such areas from the active workings of the
mine.

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result of Ranger's installation of additional ventilation controls.

Ranger did not contest either the section 104(a) citation pursuant

to sections 105(a) or (d) of the Mine Act or the section 107(a) withdrawal
order pursuant to section 107(e)(1) of the Act. 3/ After receiving MSHA's
notice of a proposed civil penalty assessment of $213 for the violation
alleged in the citation, Ranger paid the penalty on August 29, 1986,
without requesting a hearing.

As relevant here, the mine had been idled by the withdrawal order

from 11:30 a.m., May 29, to 7:00 p.m., May 31, 1986, when the order was
modified to permit resumption of production in certain areas of the mine.
The miners working the 8:00 a.m. to 4:00 p.m. shift on May 29 were
compensated by Ranger for the remainder of that shift and those scheduled
to work the following shift, 4:00 p.m. to midnight, were also paid by
Ranger for that shift. On August 15, 1986, the United Mine Workers of
America ("UMWA"), the representative of the miners at the Beckley No. 2
Mine, filed with the Commission a compensation complaint seeking "one-week
compensation" under the third sentence of section 111 of the Act (n. 1.
supra) on behalf of those miners who had been scheduled to work on May 30
and 31, but were idled by the withdrawal order. (Under the third sentence
of section 111, miners idled as a result of a section 104 or 107 withdrawal
order issued "for a failure of

3/ Section 105 of the Act, 30 U.S.C. § 815, provides operators with two
opportunities to contest and request a hearing concerning issuance of a
section 104 citation: section 105(d), 30 U.S.C. § 815(d), permits immediate
review of a citation and section 105(a), 30 U.S.C. § 815(a), affords an
opportunity to contest the penalty (and the underlying allegation of
violation) after the Secretary has proposed a civil penalty for the
alleged violation. See. e.g., Ranger Fuel I, 10 FMSHRC at 617-19.

Section 107(e)(1) provides operators an opportunity to contest the

issuance of an imminent danger order:

             Any operator notified of an [imminent danger]
  order under this section or any representative of
  miners notified of the issuance, modification,
  or termination of such an order may apply to the
  Commission within 30 days of such notification for
  reinstatement, modification or vacation of such order.
  The Commission shall forthwith afford an opportunity
  for a hearing (in accordance with section 554 of
  title 5 but without regard to subsection (a)(3) of
  such section) and thereafter shall issue an order,



  based upon findings of fact, vacating, affirming,
  modifying, or terminating the Secretary's order.
  The Commission and the courts may not grant temporary
  relief from the issuance of any order under subsection
  (a) of this section.

30 U.S.C. § 817(e)(1).

~369
the operator to comply with any mandatory health or safety standards" are
entitled to compensation "for such time" as they are idled or "for one
week, whichever is the lesser.") Ranger's payment of the civil penalty for
the violation alleged in the citation, referenced above, occurred some
10 days after Ranger had been served with a copy of the UMWA's complaint
for compensation under section 111.

Prior to hearing on the compensation complaint, both the UMWA and

Ranger filed motions for summary decision. The administrative law judge
denied both motions. We thereafter granted the UMWA's petition for
interlocutory review and reversed the judge's order insofar as he had
held that Ranger could contest in this compensation proceeding both the
fact of violation and the validity of the citation for which Ranger had
already paid the proposed civil penalty. 10 FMSHRC at 617-20. We
affirmed, however, the judge's order to the extent that he permitted
Ranger to litigate the issue of causal nexus between the violation
alleged in the citation and the issuance of the section 107(a) withdrawal
order. 10 FMSHRC at 620.21. We remanded for further proceedings.

 Following a hearing on remand, Judge Melick concluded that the

section 107(a) imminent danger withdrawal order was "final" for purposes
of section 111 because of Ranger's failure to contest that order within
the time set forth in section 107(e)(1) of the Act (n. 3 supra). 10 FMSHRC
at 1475-77. He concluded that the validity of the order and the underlying
issue of whether the order was, in fact, issued for an imminent danger
could not be contested in this compensation proceeding. Id. In reaching
this conclusion, he stated that our decision in Ranger Fuel I "would
appear to preclude litigation of the underlying order," finding the issue
presented to be analogous to the operator's related failure to contest
the citation or penalty proposal. 10 FMSHRC at 1476. 77. He noted in
particular that permitting Ranger to challenge the imminent danger order
in the compensation proceeding would anomalously place the UMWA in the role
of the Secretary of Labor in establishing the validity of the order.
10 FMSHRC at 1477. Accordingly, citing Old Ben Coal Co., 7 FMSHRC 205
(February 1985), he determined that the "assertion of 'imminent danger'
... in the order must ... be regarded as true." Id.

The judge also concluded that a causal nexus existed between the

imminent danger order and the violation alleged in the citation, holding
that an inadequate bleeder system was a causal factor in the existence
of the explosive mixture of methane found by Inspector Uhl. 10 FMSHRC
at 1476-78. He indicated that the allegations of violation and imminent
danger in the citation and withdrawal order respectively "must be accepted
as true" in light of Ranger's failure to contest those allegations.
10 FMSHRC at 1477. He disregarded any evidence conflicting with the

relevant factual allegations in the citation and the order. Id. He then
found that the testimony of Inspector Uhl, summarized above, concerning
the effects of the malfunctioning bleeder system in creating the imminent
danger, was more credible than the contrary testimony of Ranger's safety
supervisor Perdue, also noted above. 10 FMSHRC at 1478. Accordingly, the
judge concluded that "the cited violative condition[,] i.e., an inadequate
bleeder system, was a

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causal factor for the existence of the explosive mixture of methane
found ... in the withdrawal order [and] the requisite causal nexus has
been established." Id. Based on these conclusions and the parties'
stipulations, the judge awarded compensation to the miners in question.
He also awarded prejudgment interest on the compensation award, calculated
in accordance with the formula set forth in Arkansas-Carbona, supra.
10 FMSHRC at 1479.

 On review, Ranger submits that the judge erroneously refused to

consider evidence that the withdrawal order upon which the UMWA's
compensation claim is based was, in fact, invalid. Ranger submits that
it had the right to challenge the validity of the imminent danger order
in this compensation proceeding because that issue had never been actually
litigated. Ranger further contends that the judge erred in finding a
causal nexus between the imminent danger and the underlying violation.
It notes that the withdrawal order itself was not issued for a violation
of a mandatory standard, the citation being issued several days after the
order. Additionally, Ranger argues that the violative conditions cited
in the citation did not cause any "imminent danger" and that, thus, the
judge's finding of causal nexus is not supported by substantial evidence.
Finally, Ranger submits that the judge erroneously added prejudgment
interest to the award of compensation inasmuch as section 111 does not
specifically provide for interest on compensation awards.

                 II.

We turn first to the question of whether Ranger may challenge the

validity of the section 107(a) imminent danger order in this compensation
proceeding notwithstanding its failure to contest the order under section
107(e)(1) of the Act.

As we discussed in Ranger Fuel I, section 105 establishes a

comprehensive scheme for contest and review of citations and orders
issued pursuant to section 104 of the Act. 10 FMSHRC at 617.19.
Accord, Loc. U. 1810, UMWA v. Nacco Mining Co., 11 FMSHRC 1231, 1238-39
(July 1989). We held that an operator's failure to contest under section
105 (n. 3 supra) an allegation of violation in a citation precludes it
from challenging the fact of violation in the compensation proceeding.
Ranger Fuel I, 10 FMSHRC at 618-19. We also concluded that an operator's
payment of the proposed civil penalty generated the same preclusive
effect for compensation purposes. Id. See also Loc. U. 1889, UMWA v.
Westmoreland Coal Co., 8 FMSHRC 1317, 1330 (September 1986); Loc. U. 2274,
UMWA v. Clinchfield Coal Co., 8 FMSHRC 1310, 1314 (September 1986)
("Clinchfield I"); Old Ben, supra, 7 FMSHRC at 207-09. Relying on Ranger
Fuel I, we have subsequently held that an operator's failure to contest a

section 104 withdrawal order and its later modifications (and the
operator's payment of the civil penalty proposed in conjunction with the
order) foreclosed it from attacking the validity of the order and its
modifications in the compensation litigation. Nacco, supra, 11 FMSHRC
at 1238-39.

Underlying these decisions is the recognition that the "compensation
provisions of section 111 ... stand apart from the

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interrelated structure for reviewing citations, orders and penalties
created by section 105." Nacco, 11 FMSHRC at 1239. As we stated in Nacco:

            The distinct purpose of section 111 is to
  determine the compensation due miners idled by
  certain withdrawal orders, not to provide operators
  with an additional avenue for review of the validity
  of the Secretary's enforcement actions. That
  section 111 does not provide the basis for collaterally
  attacking the validity of an order that underlies a
  compensation claim is plainly revealed by the language
  of section 111, which, in its first two sentences,
  affords compensation "regardless of the result of any
  review" of an order and in its third sentence affords
  compensation "after such order is final." Thus, the
  Act contemplates that, for compensation purposes,
  the validity of the enforcement action upon which a
  compensation claim is based is either irrelevant or
  has already been otherwise established.

Id. We also emphasized that in section 105 contest proceedings the
Secretary of Labor is a party, whereas in compensation proceedings only
the miners and their representative and the operator are parties, and
that requiring miners and their representative to establish the fact of
violation or the validity of the Secretary's enforcement action in the
compensation case would improperly thrust them into the Secretary's
prosecutorial role. Ranger Fuel I, 10 FMSHRC at 619; Nacco, 11 FMSHRC
at 1249-40. Accord, Int'l U., UMWA v. FMSHRC, 840 F.2d 77, 81-82
(D.C. Cir. 1988).

These same considerations support a consistent result here.

Section 107 is an integral component of the Secretary's enforcement
arsenal under the Act. Section 107(e)(1) specifically provides for
adjudicative review of section 107(a) imminent danger orders, and
expressly affords operators the opportunity to contest and request a
hearing on the validity of such orders within 30 days of notification
thereof. The contest and review provisions of section 107 are parallel
to the section 105 scheme for contest and review of section 104 citations
and orders and related penalty proposals. Thus, as with the relationship
between section 111 and 105, we similarly conclude that section 111 "stands
apart" from the structure for reviewing imminent danger orders created by
section 107. See Nacco, 11 FMSHRC at 1239.

There is no indication in the text or legislative history of section
111 that the compensation provisions of the Mine Act were intended to

provide operators with an additional avenue of review of, or a platform for
collateral attack on, the validity of the Secretary's enforcement actions
under section 107. Such an attack in a compensation case, as with a
similar challenge to a section 104 citation or order, likewise would force
miners and their representative to assume the Secretary's prosecutorial
role of establishing the validity of her enforcement actions. Thus, we
conclude that permitting challenges to

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uncontested section 107 orders in section 111 compensation proceedings
would create the same kind of statutory contradictions as would be created
by allowing challenges of uncontested section 104 citations and orders
under section 111. Ranger Fuel I, supra, Nacco, supra.

Ranger, however, points to the language in section 105(a) of the Act

providing that an uncontested proposed penalty becomes "a final order of
the Commission ... not subject to review by any court or agency" (see,
e.g., Old Ben, 7 FMSHRC at 209), and argues that the absence of similar
language in section 107 must mean that Congress did not intend a failure
to contest an imminent danger order under section 107(e)(1) to carry the
same preclusive effect.

 We have observed in another section 111 case that the legal maxim

expressio unius est exclusio alterius (the express direction for something
in one provision, and its absence in a related provision, implies an intent
to deny it in the latter setting), relied on by Ranger here, while "often
... useful ... in determining statutory meaning, ... is nevertheless only
an aid to construction and not an invariable rule of law." Clinchfield II,
supra. 10 FMSHRC at 1502, aff'd, Clinchfield Coal Co. v. FMSHRC, supra,
slip op. at 11-12. In affirming our Clinchfield II decision on this point,
the D.C. Circuit observed:

            The difficulty with this doctrine .- and the
  reason it is not consistently applied ... -- is that
  it disregards several other plausible explanations
  for an omission. The drafter (here Congress) may
  simply not have been focusing on the point in the
  second context; and, where an agency is empowered to
  administer the statute, Congress may have meant that
  in the second context the choice should be up to the
  agency. Indeed, under [Chevron U.S.A., Inc. v. NRDC,
  467 U.S. 837, 842-44 (1984)], where a court cannot
  find that Congress clearly resolved an issue, it
  presumes an intention to allow the agency any
  reasonable interpretative choice.

Clinchfield Coal Co. v. FMSHRC, slip op. at 11-12.

The legislative history makes it abundantly clear that the reason for

inclusion of the "final order" language in section 105(a) was Congress'
deep concern over what it viewed as failures in the civil penalty system
under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801
et seq. (1976)(amended 1977)("1969 Coal Act"). See, e.g., S. Rep. No. 181,
95th Cong., 1st Sess. 40-46 (1977)("S. Rep."), reprinted in Senate

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at
628.34 (1978) ("Legis. Hist."). See also Coal Employment Project v. Dole,
889 F.2d 1127, 1132 (D.C. Cir. 1989), and authorities cited. The Senate
Committee largely responsible for drafting the bill that was enacted as
the Mine Act criticized the "lengthy, and often repetitive" procedures of
penalty assessment and collection under the 1969 Coal Act and the delays
occasioned thereby and, as one of "a number of means by which the method of
collecting

~373
penalties is streamlined," provided in that bill that an uncontested
penalty would become a final Commission order. S. Rep. 44-45, reprinted
in Legis. Hist. 632-33. No similar legislative concern is evidenced in the
legislative history with respect to contest of imminent danger orders.
Given the distinct substantive purposes of the civil penalty and imminent
danger schemes in the Act, we can understand why a similar "final order"
provision would not be deemed necessary for section 107(e)(1). What we
find most decisive, however, is that the Act plainly reflects that the only
way to challenge an imminent danger order is pursuant to section 107(e)(1).
The presence of the final order proviso in section 105(a) does not, by
itself, convince us that Congress considered and rejected a similar remedy
for section 107(e)(1). See Clinchfield Coal Co. v. FMSHRC, slip op. at 12.

In support of its position, Ranger further contends that the failure

of the imminent danger order at issue to allege a violation on its face is
fatal to the UMWA's compensation claim. We rejected the identical argument
in Clinchfield I & II (8 FMSHRC at 1314; 11 FMSHRC at 1496-98), and the
D.C. Circuit has affirmed our holding. Clinchfield Coal Co. v. FMSHRC,
slip op. at 4.9.

Finally, Ranger also relies upon the disparity in the time period

allowed for an operator to contest an imminent danger order under section
107(e)(1) (30 days) and the time provided under Commission Procedural Rule
35 (29 C.F.R. § 2700.35) for claimants to file compensation complaints
under section 111 (90 days). Ranger asserts that this divergence
inefficiently and unfairly breeds litigation because operators will
often be forced to contest an order that could potentially trigger a
compensation claim, without notice of whether they actually face such a
claim -- particularly in the case of an imminent danger order that itself
does not cite a violation. We acknowledge that practical complications
can arise in this regard. Cf. Clinchfield Coal Co. v. FMSHRC, slip op.
at 6-7. However, we rejected similar arguments in Nacco with respect
to an operator's failure to contest section 104 orders in a context of
identically disparate contest periods (11 FMSHRC at 1240), and the
Clinchfield court concluded that the "awkwardness" of having to contest
an imminent danger order not citing a violation did not outweigh the sound
reasons for allowing the Secretary, as here, to allege the underlying
violation in a subsequent enforcement action. Slip op. at 7.

Thus, we hold that an uncontested section 107(a) imminent danger order

is final and valid on its face for purposes of section 111 compensation
proceedings and, accordingly, an operator is precluded in a compensation
proceeding from contesting the validity of such an uncontested order.

Ranger also contends that the judge's finding of a causal nexus

between the imminent danger order and the bleeder violation alleged in
the relevant citation is improper and not supported by substantial
evidence. As previously discussed, Ranger's failure to contest the
citation and its payment of the civil penalty proposed for the citation
result in the allegation of violation being treated as true for purposes
of this compensation proceeding. Ranger Fuel I, 10 FMSHRC at 617.20.

~374
As noted, the judge reviewed and specifically accepted as more credible the
testimony of Inspector Uhl that the bleeder system was not functioning
properly on May 29, 1986, and that the system's failure to dissipate the
sudden inundation of methane was a contributing factor to the imminent
danger that existed. 10 FMSHRC at 1476.78. We have often emphasized
that a judge's credibility determinations may not be overturned lightly.
E.g., Quinland Coals, 9 FMSHRC 1614, 1618 (September 1987). The relevant
testimony of record has been summarized above and affords substantial
support to the judge's finding that the inadequately functioning bleeder
system contributed to the existence of the imminent danger, i.e., the
excessive amount of methane in the mine. Therefore, we conclude that
substantial evidence supports the judge's finding of a causal nexus between
the imminent danger order and the violation set forth in the citation.

Lastly, Ranger contests the judge's award of prejudgment interest on

the compensation found due. In Clinchfield II, we approved the award of
prejudgment interest on compensation, in appropriate cases, and adopted the
short-term Federal rate applicable to the underpayment of taxes as the
appropriate rate for both compensation and discrimination proceedings under
the Act. 10 FMSHRC at 1499-1506. See also 54 Fed. Reg. 2226, supra. The
D.C. Circuit has affirmed our determinations in this regard (Clinchfield
Coal Co. v. FMSHRC, slip op. at 9-13), and Ranger's various objections to
the Commission's award of prejudgment interest are accordingly rejected.
We modify the judge's award of interest, however, by directing that
interest be computed as provided in Arkansas-Carbona, supra, and, as
applicable, Clinchfield II and 54 Fed. Reg. 2226.

~375
III.

For the foregoing reasons, the judge's decision is affirmed but his

decision regarding the computation of interest is modified.

Distribution

Mary Lu Jordan, Esq.
Joyce Hanula
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005

John T. Scott, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041