<DOC>
[DOCID: f:c97-164r.wais]

 
ASSOCIATED ELECTRIC COOPERATIVE, INC.
April 10, 1998
CENT 97-164-R


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

              OFFICE OF THE ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10TH FLOOR
                         5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041

                           April 10, 1998

ASSOCIATED ELECTRIC           :    CONTEST PROCEEDINGS
 COOPERATIVE, INC.,           :
          Contestant          :    Docket No.  CENT 97-164-R
          v.                  :    Citation No.  4264782; 6/23/97
                              :
SECRETARY  OF  LABOR,         :    Docket No.  CENT 97-165-R
 MINE SAFETY AND HEALTH       :    Order No. 4264783; 6/23/97
 ADMINISTRATION, (MSHA),      :
          Respondent          :    Thos.  Hill Energy Center
                              :    Mine ID 23-02155

                            DECISION

Before:  Judge Feldman

     These contest proceedings concern Associated Electric
Cooperative, Inc.'s (AECI's), refusal to allow the entry of a
Mine Safety and Health Administration (MSHA) inspector into
AECI's electric power generating facilities at Thomas Hill
located in Randolph County, Missouri.  At issue is whether AECI's
coal handling operations at its Thomas Hill facilities constitute
the "work of preparing coal" as contemplated by section 3(h)(1)
of the Federal Mine Safety and Health Act of 1977 (the Mine Act),
30 U.S.C. � 802(h)(1), thus subjecting AECI to Mine Act
jurisdiction.  Section 3(h)(2)(i) of the Mine Act defines the
"work of preparing coal" as
". . . the breaking, crushing, sizing, cleaning, washing, drying,
mixing, storage, and loading of bituminous coal, lignite, or
anthracite, and such other work of preparing coal as is usually
done by the operator of a coal mine."

      The nature of the coal preparation process performed by
AECI at Thomas Hill is not in dispute and is set forth in the
parties' stipulations.  Briefly stated, AECI's Thomas Hill power
plant receives by rail approximately 83,000 tons of coal weekly
from mines located in the
State of Wyoming operated by Powder River Coal Company, a
subsidiary of Peabody Holding Company.  Coal extracted from the
Wyoming mines is crushed prior to shipment to a size such that
the largest pieces of coal will pass through a 2-1/2 inch hole.

     Upon arrival from Wyoming, each trainload of coal passes
through AECI's "Car Dumper Building" where coal is dumped into
hoppers one carload at a time.  At the top of each hopper a
"grizzly", or grate, removes large clumps of coal or other
material that could block the hoppers.  From the dump hoppers,
coal is transported through the Sample Building, Transfer House
No. 3 and, ultimately, Transfer House No. 1, by means of  a
conveyor system with a series of electromagnets installed to
remove any scrap metal and other impurities from the coal.  It is
important to remove metal debris such as tools, bulldozer bucket
teeth, railroad spikes, etc., so that AECI's equipment used later
in the process, e.g., coal crackers, crushers, pulverizers and
burner units, is not damaged.

     After moving through Transfer House No. 1 the coal is
directed by conveyor in one of two directions for final coal
preparation tailored for the requirements of three of Thomas
Hill's individual generating units.  At Units 1 and 2, coal is
conveyed to the Crusher House where
two Pennsylvania hammer mill crushers crush the coal to a size of
1/4 inch.  At Unit 3 the coal
is initially conveyed through coal crackers that break larger
clumps of coal into smaller sizes.
The coal is then conveyed into a granulator (ring crusher) to
ensure sizes no greater than
1-1/2 to 2 inches.  The sized coal is then stored in silos for the
different generating units.
The storage silos are located in the power generation building.

     In September 1995, the Occupational Safety and Health
Administration (OSHA)
received a complaint from a Thomas Hill Energy Center employee
concerning hazards associated with the inhalation of suspended
coal dust as well as hazards related to potential combustion of
accumulated coal dust at the track hopper feeder and in conveyor
belt tunnels.  After visiting Thomas Hill, OSHA informed AECI
that it was referring the complaint to MSHA.  As a result of
OSHA's referral, in March 1977, MSHA, after several consultations
with AECI officials, issued a jurisdictional determination citing
the boundary between OSHA and MSHA jurisdiction at the point
where coal is unloaded using the rotary car dumper onto conveyors
that ultimately transport coal into the power generation
building.  In June 1977, MSHA offered to meet with AECI for the
purpose of discussing the Mine Act and regulations.  However,
AECI informed MSHA that it would refuse to permit an inspection
because it objected to MSHA jurisdiction.

     On June 23, 1997, MSHA Inspector Larry G. Maloney was
refused entry to the
Thomas Hill power plant.  Maloney issued Citation No. 4264782
alleging a violation of section 103(a) of the Mine Act, 30 U.S.C.
� 813(a), which requires mine operators to permit MSHA
representatives to enter mine property.  AECI was given 30
minutes to abate the alleged violation.  Having failed to do so,
Order No. 4264783 was issued pursuant to the provisions of
section 104(b) of the Mine Act, 30 U.S.C. � 814(b), that require
timely abatement of cited violations by mine operators.

     As a consequence of AECI's continued refusal to submit to an
MSHA inspection,
on July 3, 1997, pursuant to section 108(a)(1)(D) of the Act, 30
U.S.C. � 818(a)(1)(D), the Secretary filed a civil action for
injunctive relief with The United States District Court for the
Eastern District of Missouri.[1]  Unaware of the initiation of
the civil action, on July 16, 1997, AECI mailed its Notice of
Contest with respect to the subject citation and order.

     On September 15, 1997, AECI filed a motion to stay these
contest proceedings, asserting  the pending civil injunctive
action and these proceedings create a "multiplicity of litigation."
AECI's stay request was denied by the undersigned on October 8,
1997.  The stay was denied because the issue before the District
Court, i.e., whether temporary injunctive relief should be
granted, was distinguishable from the ultimate jurisdictional
issue before me.

     In view of the extensive and detailed stipulations filed by
the parties and the absence of outstanding unresolved material
issues of fact, I had anticipated disposing of this case by
summary decision.  However, on February 24, 1998, the Secretary
furnished the February 18, 1998, decision of the U.S. District
Court for the Eastern District of Missouri permanently enjoining
AECI from refusing to permit MSHA inspections at the Thomas Hill
Energy Center.  Herman v. Associated Electric Cooperative, Inc.,
No. 2:97CV39-DJS (E.D. Mo. Feb. 18, 1998). The District Court
noted section 108(a) of the Mine Act expressly provides primary
district court jurisdiction when the Secretary seeks injunctive
relief to enjoin habitual violations of health and safety
standards.  Slip op. at 2.  The District Court also concluded it
had concurrent jurisdiction with this Commission with respect to
the underlying jurisdictional issue because disposition of this
matter rests upon stipulated facts, and resolution of this case
is "largely controlled by precedent of both the [Federal Mine
Safety and Health Review] Commission and Courts of Appeals."  Id.
at 4.

     In view of its primary and concurrent jurisdiction, the
court declined to defer to the Commission by issuing a
preliminary injunction pending the disposition of this
administrative proceeding.  Rather, the court exercised its
jurisdiction by consolidating its consideration of the
preliminary and permanent injunctions, and, permanently enjoined
AECI from refusing to permit MSHA inspections at its Thomas Hill
facility.  Id. at 15.  AECI has filed a Notice of Appeal of the
District Court judgement.

     I construed the Secretary's February 24, 1998, submission of
the District Court's decision as an assertion that the doctrine
of collateral estoppel applies in these matters.  Consequently,
on March 6, 1998, AECI was ordered to show cause why it should
not be precluded from prosecuting its contests of the subject
citation and order given the District Court's resolution of the
jurisdictional issue.

     AECI responded to the order to show cause on March 27, 1998.
AECI, citing case law that collateral estoppel is only applicable
where the original judgement was rendered by a court of competent
jurisdiction, asserts the court did not have jurisdiction to
issue a permanent injunction in this case.  Consequently, AECI
urges this Commission to address, prior to applying the doctrine
of collateral estoppel, whether the District Court was a court of
competent jurisdiction.

     Alternatively, notwithstanding the question of district
court jurisdiction, AECI contends the Commission should exercise
its discretion and not apply collateral estoppel in this matter
because AECI did not have "a full and fair opportunity to
litigate the ultimate [jurisdictional] fact issue . . ."
that is now before the Commission because it
believed the only pending issue before the District Court was a
preliminary injunction.

     Finally, AECI requests this matter be stayed pending the
outcome of its appeal of the District Court's decision if the
Commission declines to issue a decision on the merits.

     The Secretary responded to AECI's response to the order to
show cause on April 2, 1998. The Secretary asserts collateral
estoppel should apply because the District Court had the
discretion to permanently enjoin AECI from refusing to allow MSHA
inspections rather than delaying its issuance of a permanent
injunction until a Commission decision on the merits.
With respect to AECI's claim that it did not have a full
opportunity to be heard in district court, the Secretary points
out that the detailed stipulations filed in this proceeding are
identical to the stipulations filed in the injunctive relief
matter.  Moreover, the parties filed extensive briefs devoted to
the "merits" question in district court.

     Discussion

     The doctrine of collateral estoppel provides that, once an
     issue is actually and necessarily determined by a court of
     competent jurisdiction, the determination is conclusive in
     subsequent suits based on a different cause of action
     involving a party to the prior litigation."  Montana v.
     United States, 440 U.S. 147, 153 (1979).  Collateral
     estoppel serves "the dual purpose of protecting litigants
     from the burden of relitigating an identical issue with the
     same party . . . and of promoting judicial economy by
     preventing needless litigation."  Parklane Hosiery Co. v.
     Shore, 439 U.S. 322, 326 (1979) citing Blonder-Tongue Lab,
     Inc., v. University of Ill. Found., 402 U.S. 313, 328-29
     (1971).

     As a threshold matter, AECI's assertion that the District
     Court decision is not dispositive is in stark contrast with
     its September 15, 1997, motion to stay this administrative
     proceeding wherein it stated:

     Contestant did not intend to cause a multiplicity of
     litigation and may not have filed the Notice of Contest
     [initiating this administrative contest proceeding] if
     it had been aware of the fact that the [Secretary had]
     already [filed in] District Court.

     The [Secretary] has correctly stated to the District
     Court that resolution of this matter will turn chiefly
     on the court's determination of issues of law.  It is
     anticipated that the issues of law will be submitted to
     the court on an agreed or substantially stipulated
     record of facts.  The court will not require this
     [Commission's] expertise to find the facts and will not
     be bound by the [Commission's] conclusions of law.

     For judicial and administrative economy and to spare
     expense to the government and this citizen, this
     administrative proceeding should be stayed.
     (Contestant's Stay Motion, pp. 1-2).

     Undaunted by the above cost-benefit analysis advanced in
support of its motion for stay concerning unnecessary
multiplicity of litigation, AECI now argues the Commission should
not give recognition to the court's adverse decision.  AECI,
however, has provided no adequate justification to preclude the
applicability of collateral estoppel.  While, as AECI contends,
a party may collaterally attack the validity of a judgement for
lack of subject matter
or personal jurisdiction, it is clear that these deficiencies
were not present in the court proceeding.  In addition, an
administrative proceeding is not the proper forum for
collaterally attacking a federal court decision.  Rather, the
jurisdictional issue in this matter is where it belongs -- in the
Eighth Circuit.

     Moreover, as proceedings under the Mine Act are subject to
federal appellate review,
it would be inappropriate for this Commission to substitute its
judgement for that of a
court of appeals as to whether a district court had jurisdiction
to render permanent injunctive relief.  In addition, section 106
(a)(1) of the Mine Act, 30 U.S.C. � 816(a)(1), provides that
Commission decisions are reviewable in the circuit in which the
violation allegedly occurred, or, in the D.C. Circuit.  Thus,
given the pending appeal in the Eighth Circuit, a Commission
decision on the merits in this case could result in appeal of the
same issue in different appellate circuits.

     Finally, I am not persuaded by AECI's contention that the
Commission should exercise its discretion and decide this case on
the merits despite the court decision because AECI did not have
"a full and fair opportunity" to be heard.  As noted above, AECI
has previously opined before this Commission that the court was
fully capable of resolving this jurisdictional question.
Moreover, the court relied on the same stipulations and arguments
that have been presented by the parties in this matter.  Contrary
to AECI's assertion, the court's decision, which sets forth the
pertinent, well settled Commission and federal case law, reflects
this jurisdictional question was fully presented and thoroughly
considered.

     Finally, AECI has presented no basis for staying this matter
pending its Eighth Circuit appeal of the permanent injunction as
long as the permanent injunction remains in force.


                          ORDER

     Accordingly, the doctrine of collateral estoppel applies in
this contest matter.  Consequently, IT IS ORDERED that Associated
Electric Cooperative, Inc.'s contests of
103(a) Citation No. 4264782 in Docket No. CENT 97-164-R, and
104(b) Order No. 4264783 in Docket No. CENT 97-165-R, on the
basis of its assertion that it is not subject to Mine Act
jurisdiction, ARE DISMISSED with prejudice, as long as the
attached judgement permanently enjoining AECI from refusing to
permit MSHA inspections at its Thomas Hill power plant remains in
effect.



                              Jerold Feldman
                              Administrative Law Judge

                              Distribution:

                              Rodrick A. Widger, Esq., Andereck,
                              Evans, Milne, Peace & Baumhoer,
                              1111 S. Glenstone, Springfield, MO
                              65808 (Certified Mail)

                              Edward Falkowski,  Esq., Office of
                              the Solicitor, U.S. Department of
                              Labor, 1999 Broadway,
                              Suite 1600, Denver, CO  80202-5716
                              (Certified Mail)

                              /mh

**FOOTNOTES**

     [1]:  Section  108(a)(1)(D) authorizes the Secretary to seek
permanent or temporary injunctive relief in the district court of
the United States for  the  district  in  which  the coal mine is
located whenever an operator refuses to permit inspection.