<DOC>
[DOCID: f:xenrgy.wais]

 
EXTRA ENERGY, INC.
January 15, 1998
WEVA 96-13


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C. 20006


                        January 15, 1998

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
           v.                   :     Docket No. WEVA 96-13
                                :
EXTRA ENERGY, INC.              :
                                :


BEFORE:  Jordan, Chairman; Marks, Riley and Verheggen,
         Commissioners[1]

                            DECISION

BY:  Jordan, Chairman; Marks and Riley, Commissioners

     This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act").  At issue is whether
Administrative Law Judge Gary Melick properly
determined that production-operator Extra Energy, Inc.
("Extra Energy") was liable for a violation of 30
C.F.R. � 77.404(a)[2] by its independent contractor,
which resulted in a fatal accident, and that Extra
Energy violated 30 C.F.R. � 50.10[3] by failing to
report the accident.  18 FMSHRC 1489 (August 1996 )
(ALJ).  The Commission granted Extra Energy's petition
for discretionary review of the judge's decision.  For
the reasons that follow, we affirm the judge's
determinations.
                                I.

                 Factual and Procedural Background

     Extra Energy operates the Eckman-Page Strip and Auger
Mine, a surface coal mine in McDowell County, West Virginia.
18 FMSHRC at 1489.  Melvin Brian Day, Jr. ("Brian"), a
security guard with Neal and Associates, Inc. ("Neal"),
was assigned to provide security at the mine from 6:00
p.m. to 6:00 a.m. on Friday, Saturday and Sunday
nights.  Id.

     On Sunday, April 9, 1995, Brian failed to come home from
work at his usual time.  Id.  His father, Melvin Day
("Melvin"), and brother, Jeffrey Shawn Day ("Shawn"),
went to the mine looking for Brian.  Id. at 1489-90.
They found Brian's car on a hill near the stockpiles.
Tr. 72.  The car was running, the windows were rolled
up, and the doors were locked.  18 FMSHRC at 1490.
Brian was seated in the car in a semi-reclined
position.  Id.; Tr. 57.  Melvin and Shawn gained access
to the car by breaking the sunroof.  18 FMSHRC at 1490.
After trying unsuccessfully to call for help by CB
radio, they took Brian's body to a market in a nearby
town where they called an ambulance.  Id.

     After the ambulance arrived, Melvin and Shawn were informed
that nothing could be done with Brian's body until the
police arrived.  Tr. 36.  The police arrived, released
Brian's body to the ambulance crew, and traveled to the
accident site with Melvin and Shawn.  18 FMSHRC at
1490.  The police examined the car, started the engine
and took photographs.  Tr. 58.  When the engine was
started, one of the policemen commented on the odor of
the fumes released by the car.  Tr. 59.  After their
examination, the police allowed Shawn to drive the car
off mine property.  18 FMSHRC at 1490.

     Later that day, James Altizer, Brian's supervisor at Neal,
received a telephone call that Brian had died at the
mine site.  Id.  Altizer traveled to the mine, picking
up another security guard who had a key to the mine,
along the way.  Tr. 124.  When they arrived at the
gate, they observed that it was already open.  18
FMSHRC at 1490.  After they were unable to find anyone
on the premises, they left for the police station.  Tr.
125.  On the way, they met Judy Neal and Harlis
Mitchell, the vice-president and general manager,
respectively, of Neal, who confirmed that an accident
had occurred.  Tr. 126; E. Post-Hr'g Br. at 6.  The
four then traveled to a local market to make telephone
calls.  Tr. 127, 131.

     At around 4:00 or 5:00 p.m. that day, Altizer called Extra
Energy Superintendent Steve Haynes to inform him of
Brian's death.  18 FMSHRC at 1490; Tr. 133-35.  Altizer
testified that he told Haynes that it appeared, from
information he had received, that one of their security
guards had died of carbon monoxide poisoning at the job
site.  Tr. 134, 153-54.  According to Altizer, Haynes
responded that "he would take it from there."  18
FMSHRC at 1490.  Altizer also informed Haynes that a
car window had been broken to remove Brian from the car
and that the police had investigated the site.  Tr.
153-54, 299.

     The next morning on April 10, at approximately 5:30 a.m.,
Haynes visited the mine to look for broken glass in
order to determine where Brian had been found.  Tr.
299-300.  Haynes was unable to find any glass.  Tr.
300.

     At approximately 9:00 a.m., while at another mine site,
Haynes was contacted by an inspector with the West
Virginia Department of Mines, Eddie Miller.  Tr. 174,
302-03.  Haynes testified that Miller asked him
questions about the incident and that Haynes replied
that he had just returned from the site and that he had
been unable to find any broken glass.  Tr. 303.  He
stated that Miller had replied that they did not know
anything either and that he had heard that they had
found Brian at the local market, in a nearby town, or
near the load-out at the foot of a hill at the mine.
Tr. 303.

     Later that morning, Haynes called the offices of Neal on two
occasions seeking to speak with Judy Neal, who was not
present at either time.  Tr. 301.  The second time he
called, Haynes spoke with Neal General Manager Mitchum
who offered no further information on the location of
the accident.  Tr. 301; E. Br. at 22.  In addition,
someone from Extra Energy's office contacted the police
about the incident, but the police refused to release
any information.  Tr. 303.

     At approximately 1:00 p.m. that day, Haynes was contacted by
an inspector with the Department of Labor's Mine Safety and
Health Administration ("MSHA"), David Radcliff.  Tr. 172-73,
300.  Inspector Radcliff had been informed about the
accident that day by Randolph Richardson, who had provided
safety training to security guards employed by Neal.  Tr.
230.  Haynes was unable to provide Inspector Radcliff with
any information.  Tr. 301.

     At approximately 7:00 p.m. that evening, while driving home,
Haynes saw Altizer and Mitchum speaking, their cars parked
beside the road.  Tr. 305.  Haynes joined them and asked
whether they knew where Brian had been found.  Tr. 305.
They replied that they did not.  Tr. 305.

     On April 11, Inspector Radcliff assigned the accident
investigation to William Uhl, an investigator with MSHA.  18
FMSHRC at 1490; Tr. 172-73.  Inspector Uhl first contacted
the West Virginia Department of Mines and spoke with Miller.
18 FMSHRC at 1490; Tr. 174.  Miller informed him of the
approximate location where Brian had been found, and that
the coroner's report indicated that Brian had died from
carbon monoxide poisoning.  Id.

     Later that day, Inspector Uhl contacted Haynes at the mine.
Tr. 306.  Haynes testified that they traveled the county
road adjacent to the mine and examined the gates and that he
had shown Inspector Uhl what he had done the preceding day.
Tr. 306.  Haynes testified that there was still no
indication of where Brian's car had been found.  Tr. 306.

     During the course of his investigation, Inspector Uhl
determined that Brian's car had a damaged exhaust system and
rusted-out areas that had allowed carbon monoxide to enter
the driver's compartment.  Tr. 217.  He stated that the
exhaust leaks were audible, and that there was an odor to
the exhaust fumes.  Tr. 204, 206.  Inspector Uhl stated that
a carbon monoxide detector detected 900 parts per million
("ppm") of carbon monoxide in the driver's compartment after
the car's motor had run for 15 minutes.  18 FMSHRC at 1491.
He stated that 500 ppm of carbon monoxide can cause a
fatality over a three-hour period of time.  Tr. 207.  The
car was also missing a valid state inspection sticker.  18
FMSHRC at 1496.

     Inspector Uhl issued a citation to Extra Energy alleging a
significant and substantial violation of section 77.404(a).
Gov't Ex. 20.  He designated the level of negligence as low
because Brian's car was operated only during non-production
hours and was rarely seen by Extra Energy.  18 FMSHRC at
1491.  In addition, he issued a citation to Extra Energy
alleging a violation of section 50.10.  Id. at 1493; Gov't
Ex. 21.  Finally, Inspector Uhl issued two citations to Neal
alleging violations of the same standards.  Tr. 238; E.
Post-Hr'g Br. at 7.  The inspector designated a higher level
of negligence in the citations issued to Neal.  E. Post-Hr'g
Br. at 7.  Neal did not contest the citations.  Tr. 238.

     Extra Energy challenged the citations, arguing that it was
not properly cited for the violation of section 77.404(a)
committed by Neal, and that it did not violate section
50.10.  18 FMSHRC at 1493-96.  The matter proceeded to
hearing before Judge Melick.

     The judge concluded that Extra Energy violated sections
77.404(a) and 50.10.  Id. at 1496.  First, he rejected Extra
Energy's argument that the Secretary abused her discretion
in citing Extra Energy for violating section 77.404(a).  Id.
at 1495-96.  Although he found that MSHA's "Enforcement
Policy and Guidelines for Independent Contractors," set
forth in its Program Policy Manual (Vol. III, Part 45)
("Guidelines") were either meaningless or had not been
satisfied, the judge concluded that there were sufficient
grounds for citing Extra Energy because it had contracted
with Neal for security, and the car had an obviously
defective exhaust system and no current inspection sticker.
Id.  In addition, the judge rejected the operator's argument
that Brian was a trespasser and not a "miner" within the
meaning of section 3(g) of the Mine Act, 30 U.S.C. � 802(g),
and that it, therefore, was not responsible for his actions.
Id. at 1494.  He also found Extra Energy strictly liable for
the reporting violation because a fatal accident had
occurred at the mine and Extra Energy had failed to report
it to MSHA.  Id. at 1496.  In addition, the judge credited
Altizer's testimony that he had informed Haynes that Brian
had died of carbon monoxide poisoning at the mine.  Id.
However, the judge concluded that negligence for both
violations was low due to mitigating circumstances.  Id.
Accordingly, the judge affirmed both citations and assessed
civil penalties of $500 and $50 for the violations of
sections 77.404(a) and 50.10, respectively.  Id. at 1497.

     The Commission subsequently granted Extra Energy's petition
for review of the judge's decision and heard oral argument.

                               II.

                           Disposition

     A.   Equipment Violation

          1.   Whether the Secretary Abused Her Discretion by
               Citing Extra Energy

     Extra Energy argues that the judge erred in finding it
liable for violating section 77.404(a) after he concluded that
the Guidelines were either meaningless or had not been satisfied.
E. Br. at 6-14.  It asserts that the Commission has, in effect,
adopted the Secretary's Guidelines, and that none of the criteria
had been satisfied.  Id. at 11-13.  The Secretary responds that
she has unreviewable discretion to cite production-operators,
independent contractors, or both.  S. Br. at 10-19.  She submits
that, even if her decision to cite Extra Energy were reviewable,
her decision was within the wide discretion recognized by the
Commission.  Id. at 19-21.

     The Commission and various courts have long recognized that,
under the Mine Act's scheme of strict liability, an operator,
although faultless itself, may be held liable for the acts of its
independent contractor.  Bulk Transp. Services, Inc., 13 FMSHRC
1354, 1359-60 (September 1991); Cyprus Indus. Minerals Co. v.
FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981).  In instances of
multiple operators, the Secretary has "wide enforcement
discretion" and may proceed against an operator, independent
contractor, or both.  Mingo Logan Coal Co., 19 FMSHRC 246, 249
(February 1997), aff'd per curiam, No. 97-1392 (4th Cir. January
8, 1998); Consolidation Coal Co., 11 FMSHRC 1439, 1443 (August
1989).  The Commission has determined that "its review of the
Secretary's action in citing an operator is appropriate to guard
against abuse of discretion."  W-P Coal Co., 16 FMSHRC 1407, 1411
(July 1994).  A litigant seeking to establish an abuse of
discretion bears the heavy burden of establishing that there is
no evidence to support the Secretary's decision or that the
decision is based on an improper understanding of the law.  Mingo
Logan, 19 FMSHRC at 249-50 n.5.

     The Commission has considered various factors in determining
whether an enforcement action constitutes an abuse of the
Secretary's discretion, including the operator's day-to-day
involvement in the mine's operations (Mingo Logan, 19 FMSHRC at
250; W-P, 16 FMSHRC at 1411), whether the operator is in the best
position to affect safety (Bulk, 13 FMSHRC at 1361) and whether
the enforcement action is consistent with the purpose and
policies of the Act (Old Ben Coal Co.,  1 FMSHRC 1480, 1485
(October 1979)).  In addition, the Commission has considered
whether any of the criteria of the Secretary's Guidelines for
proceeding against an operator have been satisfied.  See, e.g.,
Bulk, 13 FMSHRC at 1360; Mingo Logan, 19 FMSHRC at 250.  While
failure to satisfy the criteria is not fatal to an enforcement
decision (Mingo Logan, 19 FMSHRC at 250), the Commission has
relied upon satisfaction of the criteria in concluding that there
was no abuse (e.g., Bulk, 13 FMSHRC at 1360).[4]

     Here, Extra Energy had substantial involvement in the day-
to-day operations at the mine.  As the production-operator
responsible for day-to-day mining activities, Extra Energy
contracted with Neal for security services.  Tr. 289-91. In
obtaining Neal's services, Haynes had described the guard's
duties and the areas to be patrolled.  Tr. 289-91.  Extra Energy
also retained some supervision over the security guards in that
it was responsible for reviewing reports submitted by the guards
describing the area patrolled and whether the area had been
secure.  Tr. 316-17, 333-34; Gov't Ex. 1.

     In addition, contrary to Extra Energy's assertions, there is
evidence in the record satisfying the first two criteria of the
Secretary's Guidelines.[5]  Extra Energy did not provide the
guards with a structure to protect them from the elements during
their shift, leaving the guards' vehicles as the only available
shelter.  Tr. 121, 322.  Despite the guards' dependence upon
their cars, Extra Energy took no measures to ensure that the cars
were safe, either by inspecting them itself or by requiring that
Neal did so.  Tr. 240, 265, 267.  As a result, the obvious
defects in Brian's car were not discovered.  Through its failure
to inspect or ensure that the security guards' vehicles were
inspected, Extra Energy contributed to the equipment violation
and to the continued existence of the violation.

     Given Extra Energy's involvement in the mine's day-to-day
affairs, and its complete failure to inspect or ensure that the
vehicles were inspected, we conclude that Extra Energy has failed
to prove that "there is no evidence to support the [Secretary's]
decision" to proceed against it.  Mingo Logan, 19 FMSHRC at 249-
50 n.5.  Accordingly, we affirm the judge's conclusion that the
Secretary did not abuse her discretion in citing Extra Energy for
violating section 77.404(a).[6]


**FOOTNOTES**

     [1]:  Commissioner Beatty assumed office after this case had
been  considered  and  decided  at  a  decisional meeting.  A new
Commissioner possesses legal authority to  participate in pending
cases,  but  such participation is discretionary.   Mid-Continent
Resources, Inc.,  16  FMSHRC  1218, 1218 n.2 (June 1994).  In the
interest of efficient decision  making,  Commissioner  Beatty has
elected not to participate in this matter.

     [2]:  Section 77.404(a) provides:

          Mobile and stationary machinery and equipment
          shall   be   maintained   in  safe  operating
          condition  and  machinery  or   equipment  in
          unsafe   condition  shall  be  removed   from
          service immediately.

30 C.F.R. � 77.404(a).

     [3]:  Section 50.10  provides in part that "[i]f an accident
occurs, an operator shall immediately  contact  the MSHA District
or  Subdistrict  Office having jurisdiction over its  mine."   30
C.F.R. � 50.10.

     [4]:  The Commission  has  repeatedly  recognized  that  the
Guidelines  are  policy  statements  and  are  not binding on the
Secretary.  Mingo Logan, 19 FMSHRC at 250; D.H.  Blattner & Sons,
Inc., 18 FMSHRC 1580, 1586 (September 1996), appeal docketed, No.
96-70877 (9th Cir. Oct. 21, 1996).

     [5]:  We find improperly speculative the judge's  conclusion
that  the  first  two  criteria  are  "unworkable and essentially
meaningless  because  it  can always be said  that  a  production
operator contributed by omission  to  a violation on its premises
by one of its contractors."  18 FMSHRC  at 1495.

     [6]:  In light of our conclusion,  as  in  Mingo  Logan,  19
FMSHRC  at 251 n.7, we do not reach the Secretary's argument that
she  has  unreviewable   discretion   to   cite   the   operator,
independent-contractor or both.

          2.   Whether Brian was a Miner Rather than a Trespasser

     Extra Energy argues that substantial evidence[7] does not
support the judge's finding that Brian was a "miner" within the
meaning of section 3(g) of the Act,[8] rather than a trespasser.
E. Br. at 15-18.  Extra Energy relies upon Haynes' testimony that
he had instructed Altizer and Brian that Neal's guards were to
remain outside the mine gates and to conduct their patrols along
the adjacent county road.  Id. at 15-16.  It asserts that the
judge failed to consider Altizer's testimony that Brian's duties
had changed so that he was no longer required to patrol the auger
on mine property, and the testimony of Donald Graham, an employee
of Extra Energy, that unbroken tracks on the access road to the
auger indicated that the auger had not been patrolled.  Id. at
16-17.  The Secretary responds that the judge properly determined
that Brian was a miner.  S. Br. at 22-25.

     In reaching his determination that Brian was a miner, the
judge discredited Haynes' testimony that he had instructed Brian
that he was not allowed on mine property.  18 FMSHRC at 1494.  A
judge's credibility determinations are entitled to great weight
and may not be overturned lightly.  Farmer v. Island Creek Coal
Co., 14 FMSHRC 1537, 1541 (September 1992); Penn Allegh Coal Co.,
3 FMSHRC 2767, 2770 (December 1981).

     As the judge found, Haynes' testimony that Brian was not
authorized to be on mine property is contradicted by evidence
that Brian had been given a key to the mine property in case of
emergencies.  Tr. 318-19.  Haynes admitted that Brian would need
the key to remove trespassers from the property.  Tr. 337.
Haynes also acknowledged that the gates were probably on mine
property and that it was part of Brian's duties to ensure that
the gates were locked.  Tr. 338-40.  Haynes conceded that he did
not request that Brian return the key, even after he had
discovered Brian on mine property on two occasions.  Tr. 321.

     In addition, Haynes' testimony that Brian was a trespasser
is not supported by the reports that Brian submitted detailing
the areas he had patrolled and whether they were secure.  Tr.
316; Gov't Ex. 1.  The reports were reviewed by an employee at
another Extra Energy site, who forwarded them to Haynes, if there
were any problems.[9]  Tr. 316-17, 333-34.  The reports indicated
that Brian had been patrolling the stockpiles and auger on the
mine property on a daily basis.  Tr. 316.

     Furthermore, the testimony of Graham and Altizer relied upon
by Extra Energy does not necessarily establish that Brian was not
allowed on mine property.  Altizer did not testify that Brian was
not authorized to patrol the auger.  Rather, Altizer testified
that Brian had stated that his duties had changed in that Brian
was supposed to check the auger and, rather than staying there,
he could move to a different location, such as the hill between
two stockpiles, where he had better CB communications.  Tr. 107,
147, 157-58.  Moreover, evidence that Brian did not travel the
access road to the auger does foreclose the possibility that
Brian ensured the security of the auger by another means while on
mine property, such as by watching the entrance to the auger
access road.  See Tr. 335.

     We do not find the extraordinary circumstances requiring
that we overturn the judge's credibility determination.
Accordingly, we conclude that the judge's determination that
Brian was a miner within the meaning of the Act is supported by
substantial evidence.  Because Extra Energy did not contest any
other basis for the equipment violation,[10] we affirm the
judge's finding that Extra Energy violated section 77.404(a).[11]

     B.   Reporting Violation

     Extra Energy argues that the judge's finding of a reporting
violation was erroneous as a matter of law and was not supported
by substantial evidence.  E. Br. at 18-24.  It submits that Extra
Energy's duty to contact MSHA did not arise until it was aware
that a reportable accident had occurred, and that it did not have
a reasonable opportunity to ascertain whether the accident had
occurred on mine property.  Id. at 18-21.  Extra Energy maintains
that, in any event, Haynes' investigative actions upon being
informed of the accident were reasonable.  Id. at 21-25.  The
Secretary responds that substantial evidence supports the judge's
determination that Extra Energy violated section 50.10.  S. Br.
at 26-27.

     Section 50.10 requires operators to report immediately to
MSHA the occurrence of certain "accidents," as defined in section
50.2(h).  In relevant part, section 50.2(h) includes within the
definition of "accident," the "death of an individual at a mine."
30 C.F.R. � 50.2(h)(1).  Because section 50.10 contemplates that 
operators must first determine whether particular events constitute
reportable accidents within the meaning of section 50.2(h),
section 50.10 "necessarily accords operators a reasonable
opportunity for investigation into an event prior to reporting to
MSHA."  Consolidation Coal Co., 11 FMSHRC 1935, 1938 (October
1989).  Such "internal investigation . . . must be carried out by
operators in good faith without delay and in light of the
regulation's command of prompt, vigorous action."  Id.

     The judge failed to analyze the alleged violation against
this framework.  Rather, the judge affirmed the citation based on
his finding that Altizer had informed Haynes that Brian had died
of carbon monoxide poisoning at the mine, and on his conclusion
that Extra Energy was strictly liable for the violation based on
undisputed evidence that an accident had occurred on mine
property and Extra Energy had failed to report it.  18 FMSHRC at
1496.  Nonetheless, we find substantial evidence in the record to
support his holding that Extra Energy violated section 50.10.

     In applying the Commission's test, reasonable minds may
reach different conclusions as to whether Haynes' actions in
waiting until the morning of April 10 to begin an investigation
by visiting the mine to look for broken glass amounted to
reasonable investigative efforts.  Evidence of Haynes' actions
after his initial visit to the mine, however, supports only the
conclusion that Haynes failed to investigate and report the
accident as required by section 50.10.

     On the morning of April 10, after he failed to find broken
glass at the mine site, Haynes did not vigorously continue his
investigative efforts until he discovered the circumstances of
Brian's death.  Rather, he returned to his work duties, traveling
to another mine site.  Tr. 300, 302-03.  Although he called
Neal's offices, when Mitchum informed him that he knew nothing
more about the accident than did Haynes, Haynes did not further
pursue the basis for Altizer's statement that Brian had died at
the mine site.  Tr. 301.  His next significant contact with Neal
personnel occurred only by happenstance, when Haynes noticed
Altizer and Mitchum talking on the side of the road that Haynes
traveled on his way home.  Tr. 305.  Haynes did not contact the
sheriff's office either in person or by telephone even after the
sheriff's office refused to release information to the Extra
Energy employee who had placed the call.  Tr. 331-32.  Haynes did
not attempt to reach Brian's family or the hospital to find out
more information about the accident.[12]  Tr. 304, 331.  In
addition, even if the involvement of state and local police led
Haynes to believe that the incident had occurred off mine
property, as argued by Extra Energy, Haynes should been alerted
that it was appropriate to contact MSHA after he discovered that
state mine inspectors were investigating the accident on the
morning of April 10.  Tr. 174, 302-03.

     Such actions do not demonstrate an investigation carried out
"in good faith without delay and in light of the regulation's
command of prompt, vigorous action."  Consolidation, 11 FMSHRC at
1938.  Because the evidence of Haynes' actions after his initial
inspection on April 10 supports only the conclusion of violation,
remand for reconsideration of the issue by the judge is
unnecessary.  See American Mine Servs., Inc., 15 FMSHRC 1830,
1834 (September 1993) (remand unnecessary where reconsideration
of issue by judge would serve no purpose).  Accordingly, we
affirm in result the judge's determination that Extra Energy
violated section 50.10.
                               III.

                            Conclusion

     For the foregoing reasons, we affirm the judge's
determinations that Extra Energy violated sections 77.404(a) and
50.10.

                                   Mary Lu Jordan, Chairman
                                   
                                   Marc Lincoln Marks, Commissioner
                                   
                                   James C. Riley, Commissioner


Commissioner Verheggen, concurring in part and dissenting in part:

     I agree with and join in my colleagues' decision except
Sections II.A.1 at n.5 and II.B.  I agree with my
colleagues' conclusion that the judge properly found "that
the Secretary did not abuse her discretion in citing Extra
Energy."  Slip op. at 6. Although my colleagues state
that they "do not reach the  Secretary's argument that she
has unreviewable discretion to cite the operator,
independent-contractor or both" (id. at 6 n.5), in
effect they do reach the issue and reject the Secretary's
argument by reviewing her exercise of discretion in this
case.  In one breath, my colleagues say that "the
Secretary did not abuse her discretion" here, and even
cite a Commission case that unequivocally holds that
Commission "review of the Secretary's action in citing
an operator is appropriate to guard against an abuse of
discretion."  Slip op. at 5 (citing W-P Coal Co., 16
FMSHRC 1407, 1411 (July 1994)).  In the very next
breath, my colleagues claim that they need not address the
Secretary's assertion that her  discretion is unreviewable.
Slip op. at 6 n.5.  The note my colleagues drop from their
holding and the holding itself contradict each other.  I
therefore write separately on this issue to disassociate
myself from the note.

     Furthermore, I disagree with the Secretary's contention that
she "has virtually  unreviewable discretion in
multiple operator situations to decide which operator to
cite for a violation of the Act."  S. Br. at 17.[1]  I
stand by the Commission's  prior pronouncements on this
subject, and would reaffirm at every opportunity the
principle that "review of the Secretary's action in citing
an operator is appropriate to guard against an abuse of
discretion."  W-P Coal Co., 16 FMSHRC at 1411.  I believe it
is vital for the Commission to faithfully discharge its duty
to "`develop a uniform and comprehensive interpretation'
of the Mine Act."  Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 214 (1994) (citing  Nomination Hearing Before the
Senate Comm. on Human Resources, 95th Cong., 2d
Sess. 1 (1978)).  Congress  explicitly charged the
Commission "with the responsibility . . . for
reviewing the enforcement activities of the Secretary
. . . [to] provide guidance to  the Secretary in enforcing the
[Mine Act]."  Nomination Hearing, supra, at 1.  Such
review is paramount to guard against mischief - or worse -
in the Secretary's exercise of  her prosecutorial discretion.
Cf. Minerals Exploration Co., 8 FMSHRC 477, 486-87 (April
1986).

     I also dissent from Section II.B of my colleagues' decision
affirming in result the  judge's conclusion that Extra
Energy violated section 50.10. I agree with my colleagues
that the judge failed to analyze the alleged violation
against the framework  established by the Commission
in Consolidation Coal Co., 11 FMSHRC 1935, 1938 (October
1989), which affords operators "a reasonable opportunity for
investigation into an event  prior to reporting to MSHA."
I disagree, however, with my colleagues' conclusion that
the record evidence supports only the finding of  a
violation, thus obviating the  need for remand.  Slip op. at
9.  I believe there is conflicting evidence as to
whether Extra Energy violated section 50.10, the resolution
of which should be made by the judge because the "`ALJ has
sole power to . . . resolve inconsistencies in the
evidence.'"  Wellmore Coal Corp. v. FMSHRC, No. 97-1280,
1997 WL 794132, at *3 (4th Cir. Dec. 30, 1997) (quoting
Grizzle v. Picklands Mather & Co., 994 F.2d 1093, 1096 (4th
Cir. 1993)).

     The Commission held in Consolidation Coal Co. that "[t]he
immediateness of an operator's notification under section
50.10 must be evaluated on a case-by-case basis, taking
into account the nature of the accident and all relevant
variables affecting reaction and reporting."  11 FMSHRC at
1938.  In this case, such  "relevant variables" include
the fact that Extra Energy Superintendent Haynes was
unable to determine whether the accident had occurred on
mine property because the vehicle had been removed and
he was unable to find any broken glass (Tr. 299-300);
that Neal and Associates, the  victim's employer, was unable
to provide Haynes with any definitive information as to
where the accident occurred (Tr. 301); that the victim's
family could not be reached by telephone (Tr. 62-63); and
that the state police, who first investigated the
accident, would not release  any information (Tr. 303).[2]
These facts, in addition to those raised by my colleagues,
should be evaluated by the judge in order to determine
whether Haynes' investigation was in fact carried out "in
good faith and without delay." 11 FMSHRC at 1938.
Accordingly, I would vacate the judge's decision on this
issue and remand for further proceedings.


                                   Theodore F. Verheggen, Commissioner


Distribution

Yoora Kim, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

L. Joseph Ferrara, Esq. 
Jackson & Kelly
2401 Pennsylvania Ave., N.W.,
Suite 400
Washington, D.C.  20037

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


**FOOTNOTES**

     [7]:   When  reviewing an administrative law judge's factual
determinations, the  Commission is bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
�  823(d)(2)(A)(ii)(I).    "Substantial  evidence"  means  "`such
relevant evidence as a reasonable  mind  might accept as adequate
to  support [the judge's] conclusion.'"  Rochester  &  Pittsburgh
Coal   Co.,   11  FMSHRC  2159,  2163  (November  1989)  (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [8]:  Section  3(g)  of the Mine Act defines a miner as "any
individual working in a . . . mine."  30 U.S.C. � 802(g).

     [9]:  Although Haynes  testified  that he had never reviewed
the reports prior to the accident, he admitted  that  it  was his
responsibility to review the reports if there were problems.  Tr.
316-17.

     [10]:   In  its  petition  for  discretionary  review, Extra
Energy contested the violation on the basis that Brian's  car was
not  equipment,  but  did  not address the argument in its brief.
PDR  at  8-9.  The Commission  need  not  address  this  argument
because Extra  Energy  has  abandoned  it.   RNS Servs., Inc., 18
FMSHRC 523, 526 n.6 (April 1996).  We also note that the question
was  raised  for the first time in Extra Energy's  petition,  and
that the judge  was  not afforded an opportunity to pass upon it.
18 FMSHRC at 1496; 30 U.S.C. � 823(d)(2)(A)(iii).

     [11]:   Given  our   conclusion,   we  need  not  reach  the
Secretary's arguments that, even if Brian  had  been  outside the
gates, he would still be on mine property because a mine includes
"private  ways and roads appurtenant thereto," (S. Br. at  24-25)
and that because  the  Mine Act is a strict liability statute, an
operator is strictly liable for violations that take place at its
mine even if it was the  victim  of  an unrelated party's actions
(Id. at 25, citing Secretary of Labor  v.  Miller Mining Co., 713
F.2d 487 (9th Cir. 1983)).

     [12]:   As  noted  by Extra Energy, Haynes  could  not  have
called Brian's family because  they did not have a telephone.  E.
Br. at 23; Tr. 62.  However, Haynes  did  not  attempt  to  reach
Brian's family in person or by CB radio.


     [1]:   The  Secretary herself admits that the Commission has
the  authority to review  her  enforcement  discretion  to  guard
against  "invidious and unconstitutional discrimination."  S. Br.
at 13 n.6.

     [2]:   Indeed,  the  very involvement of the state and local
police, which according to  MSHA  do  not  have jurisdiction over
accidents occurring on mine property (Tr. 246-47),  suggests that
Haynes'  belief that the accident did not occur at the  mine  may
have been reasonable.