<DOC>
[DOCID: f:eaj981cd.wais]

 
BLACK DIAMOND CONSTRUCTION, INC.
November 3, 1999
EAJ 98-1


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                        November 3, 1999

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
          v.                      : Docket No. EAJ 98-1
                                  :
BLACK DIAMOND CONSTRUCTION, INC.  :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and 
        Beatty, Commissioners


                            DECISION

BY: Jordan, Chairman; Riley, Verheggen, and Beatty,
    Commissioners

     This is a proceeding involving the recovery of attorney's
fees and expenses under the Equal  Access  to  Justice  Act, 
5 U.S.C.  504 ("EAJA").  Black Diamond Construction, Inc. 
"Black Diamond") prevailed over the Department of Labor's Mine 
Safety and Health Administration ("MSHA") in the underlying 
penalty proceeding under the Federal Mine Safety and Health 
Act of 1977, 30 U.S.C.  801 et seq. (1994) ("Mine Act" or 
"Act"), when the Secretary vacated two citations  prior  to 
trial.  Thereafter, Black Diamond filed an application for 
fees on the ground that the  Secretary's  position  was  not 
substantially justified.  Administrative  Law  Judge  David 
Barbour ordered the Secretary  of  Labor  to  pay  to  Black 
Diamond fees and expenses  of  $14,390.25.  20  FMSHRC  1169 
(Oct. 1998) (ALJ).[1]  For the reasons that follow, we affirm 
the judge's award.

                               I.

                Factual and Procedural Background

     A.   The Mine Act Proceeding[2]

     On May 15, 1997, during a routine mine inspection at the
Robin Hood Preparation Plant, MSHA Inspector Ernest Thompson
observed Brian Casto on mine property a nd  asked  about  his 
work duties.  20 FMSHRC at 1170, 1173; B.D. Reply to S. Answer 
to EAJA Appl., Ex. B at 6 ("Thompson Dep.").  Casto responded 
that he had driven a fuel truck on three occasions.  20 FMSHRC 
at 1170. Thompson knew that  Casto  worked  for a  contractor, 
Black  Diamond,  which  was  at  the  mine  to  eliminate  an 
impoundment.  Thompson Dep. at 11.  The impoundment, which had 
been in existence for several decades, was a dam, constructed 
out of rock and coal refuse, that was located between two 
hillsides with about 40 acres of water and slurry behind it.  
20 FMSHRC at 1172; Thompson Dep. at 10-11, 87.  Thompson was 
also aware that Black Diamond was going to pump the water out 
of the impoundment and push the coal fines from the face of 
the dam back into the impoundment area.  Thompson Dep. at
11-12.  Elimination of the dam would allow longwall mining of
coal underneath the impoundment without fear of water seepage.
20 FMSHRC at 1172. At the completion of the work, there would 
be a refuse pile in place of the impoundment.  S. Answer to 
EAJA Appl. at 2-3.

     Thompson also observed Black Diamond employee Matthew 
Adkins operating sediment pumps in the impoundment. Id. at 3.  
Thompson concluded that both workers were performing general 
mine labor and therefore were "miners" for purposes of the 
MSHA training regulations.  20 FMSHRC at 1170.

     Thompson issued two citations against Black Diamond.
Citation No. 4404455 charged Black Diamond with violating 
30 C.F.R.  48.25(a) when Casto performed general labor 
duties at the work site without having received mandatory 
safety training.[3]   Id. at 1169; Thompson Dep., Ex. 1.  
Citation No. 4404941 charged Black Diamond with violating 30 
C.F.R.  48.29(c) when it failed to certify that Adkins had 
received the required training and to keep his certification 
form at the mine.[4] 20 FMSHRC at 1169-70; Thompson Dep., 
Ex. 4.

     Later that day, Thompson met with William Casto, vice-
president of Black Diamond, concerning the citations.  
Thompson Dep. at 79-80.  Casto stated that Black Diamond was 
performing demolition work and was exempt from the training 
regulations. 20 FMSHRC at 1170-71; B.D. EAJA Appl., Ex. 1 at 
11 ("Casto Dep."). At a later meeting with MSHA officials on 
June 25, 1997, Casto again asserted that Black Diamond 
employees were construction workers who were exempt from the 
training regulations, and he supported his position with 
pages from MSHA's Program Policy Manual.

     The  Program  Policy  Manual,  Part  48  Training  and 
Retraining  of  Miners,  provides:

          Independent Contractor Training
          A.  Coverage and Training Requirements
          Independent contractors working at a mine are
          miners for Part 48 training purposes, except as
          explained below.

          ****

          This policy does not cover independent contractors
          who are shaft and slope workers, surface
          construction workers . . . .

          ****

          Persons Performing Construction Work
          Construction work includes the building or
          demolition of any facility, the building of a
          major addition to an existing facility, and 
          the           assembling of a major piece of 
          new equipment . . . .

          ****

          B.  Surface Mines or Surface Areas of Underground Mines

          ****

               2.  If workers are performing shaft and slope
          construction work - no Part 48 training is required.

          Persons Performing Maintenance or Repair Work
          Maintenance or repair work includes the upkeep or
          alteration of equipment or facilities. . . .

          A person performing maintenance or repair work,
          whether or not the mine is operational, must
          receive the appropriate comprehensive or hazard
          training under Subpart A or B [of the Part 48
          regulations].

III MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 48, 
at 14-15 (1991) ("PPM").  Casto further stated that he had 
talked with MSHA officials at its Mt. Hope, West Virginia 
office who agreed with him.  20 FMSHRC at 1171; Casto Dep. at 
34-35.  MSHA supervisor Don Ellis responded that it was MSHA 
policy to apply its training regulations to the work that 
Black Diamond was performing.  20 FMSHRC at 1171.

     On October 17, 1997, the Secretary filed a petition for
assessment of civil penalties against Black Diamond. Id. at
1169. The Secretary proposed penalties of $108 for the 
violation involving Brian Casto and $50 for the violation 
involving Adkins. Id. at 1170.  Black Diamond denied that it 
violated the regulations, and the case was assigned to an 
administrative law judge. Id.

     After the failure of settlement discussions, the judge
ordered prehearing statements.  Id.  Black Diamond contended 
that Part 48 exempted the individuals performing construction 
work of the type that it was hired to perform.  Id. In her 
statement, the Secretary contended that Black Diamond was 
hired to drain an impoundment at the preparation plant in
order to  allow  longwall  mining  to  commence  under  the 
impoundment.  S.  Preh.  Statement  at  2.  Therefore,  the 
Secretary concluded, the miners were hired to make alterations 
to the impoundment and were repair and maintenance workers 
subject to Part 48.  Id.; 20 FMSHRC at 1170. The Secretary 
included in her list of proposed exhibits copies of the 
relevant pages of the PPM and Black Diamond's Impoundment
Elimination Plan ("Plan"), which had been submitted to MSHA 
for approval.  S Preh. Statement at 6.

     On February 23, one day prior to the scheduled hearing, 
the Secretary vacated the underlying citations.  20 FMSHRC at 
1170; S. Mot. to Dismiss at 3.  The Secretary filed a motion 
to dismiss the penalty proceeding because it was moot.  20 
FMSHRC at 1170; S. Mot. to Dismiss at 1.  Attached to the 
motion were copies of the vacations, which stated:  "After 
consultation with the Office of the Solicitor, [the citation] 
is hereby vacated."  20 FMSHRC at 1170.  On February 25, the 
judge issued an order dismissing the proceeding.  Id.; 
Unpublished Order dated February 25, 1998.

     B.   The EAJA Proceeding

     Black Diamond filed an application for legal fees and
expenses under the EAJA.  20 FMSHRC at 1170-71; EAJA Appl. 
at 1. Black Diamond asserted that, from the time the 
citations issued, it told MSHA Inspector Thompson that it was 
an independent contractor performing demolition work and that 
its employees were exempt from the training requirements.  
20 FMSHRC at 1170-71.  At the June 25, 1997 post-inspection 
conference, Black Diamond reiterated this position and 
supported its claim with the PPM and represented that MSHA 
officials at its Mt. Hope, West Virginia office confirmed 
that surface construction workers were exempt from the 
training regulations.  Id. at 1171.  Black Diamond further 
asserted that MSHA was aware that its employees were engaged 
in demolishing the impoundment but did not vacate the
citations until the company was forced to go to the expense 
of defending itself.  Id. at 1172.

     The Secretary opposed the application, stating that her
position that Brian Casto and Matthew Adkins were subject to 
the training requirements was substantially justified.[5]  
20 FMSHRC at 1172.  According to MSHA Inspector Thompson, 
Casto and Adkins were retained to make alterations to the 
impoundment and, therefore, were subject to the Part 48 
training requirements. Id. at 1174.  The Secretary explained 
that the decision to vacate the citations was due to "an 
internal dispute within the agency with respect to whether 
the overall nature of the work being done . . . was 
`construction work' or `maintenance or repair work.'" S. 
Answer to EAJA Appl. at 17.  The Secretary further explained
that the conflict within the agency became apparent during 
the deposition of Stuart Shelton, MSHA's impoundment 
specialist, who stated, on February 18, 1998, that a refuse 
site could not legally be both an impoundment and a refuse 
pile.  Id.; Shelton Dep. at 1, 26.  Until that time, it was 
the Secretary's position that Black Diamond was modifying a 
coal refuse facility from an impoundment to a refuse pile by
eliminating the impounding capability of the facility.[6]  
S. Answer to EAJA Appl. at 17.

     The judge viewed the primary issue in the underlying 
Mine Act proceeding as whether the work being performed at 
the impoundment was "construction work." 20 FMSHRC at 1176. 
Based on the PPM, the Plan, the deposition testimony of 
several  witnesses,  the  regulatory  scheme  governing 
impoundments and coal refuse facilities, and dictionary 
definitions, the judge concluded that the Secretary had 
failed to establish that her position was substantially 
justified and that, therefore, Black Diamond was entitled to 
an award.  Id. at 1177-79.  The judge ordered the Secretary 
to pay fees and expenses totaling $14,390.25.  Id. at 1180.  
Thereafter, the Commission granted the Secretary's petition 
for discretionary review.

                               II.

                           Disposition

     A.   Motions to Strike

     Because the Mine Act proceeding ended prior to trial 
and a decision by the judge, there was limited evidentiary 
material in that proceeding.  Commission EAJA Rule 306(c) 
specifically addresses this situation by allowing the 
applicant and the Secretary to supplement the record in the 
EAJA proceeding with affidavits and other documentary 
evidence. 29 C.F.R.  2704.306(c).[7] However, each party's 
brief cites to deposition testimony not placed in the record 
in accordance with the Commission's rule.

     Black Diamond filed a motion to strike citations in the
Secretary's brief to pages in the deposition testimony of Don
Ellis and Brian Casto that were not included in the record 
before the judge.  B.D. Mot. to Strike at 3-4.  In response, 
the Secretary cross-moved to strike references in Black 
Diamond's brief to pages of the depositions of Brian Casto, 
Matthew Adkins, Raymond Brown, and Don Ellis that were not 
before the judge. S. Resp. to B.D. Mot. to Strike at 5-6.

     Black Diamond also objects to the Secretary's reference 
in her brief to an MSHA handbook entitled "Coal Mine 
Impoundment Inspection Procedures" and to the regulatory 
history and findings of fact by the Mining Enforcement and 
Safety Administration ("MESA"), because these materials were 
not considered by the judge and were submitted for the first 
time to the Commission on appeal.  B.D. Mot. to Strike at 1, 
3-4.  In response, the Secretary argues that the Commission 
can take judicial notice of the MSHA handbook and the MESA 
regulatory history contained in the Federal Register. S. Resp. 
to B.D. Mot. to Strike at 1-3.

     Consideration of the non-record deposition testimony is
unnecessary to disposition of the case.  Further, we do not 
rely on the secondary authorities cited in the Secretary's 
brief that were objected to by Black Diamond.  Therefore, the 
motions to strike the disputed testimony and authorities are 
denied as moot. See Secretary of Labor on behalf of Glover v.
Consolidation Coal Co., 19 FMSHRC 1529, 1535 n.7 (Sept. 1997).

     B.    EAJA Application

     The Secretary argues that the judge erred in failing to
independently evaluate the reasonableness of the Secretary's
position and impermissibly commingled a substantial evidence
standard, appropriate for an evaluation of the merits of the
case, with the substantial justification standard - whether 
there is a reasonable basis in fact and law for the 
government's position.  S. Br. at 10.  The Secretary contends 
that, in the absence of a definition of "alteration" in the 
regulations or the PPM, her position that elimination of 
the water-impounding capability was an alteration of the 
impoundment was reasonable. Id. at 15-20.  The Secretary also
argues that the employees of Black Diamond were exposed to 
the same hazards as miners and that coverage under the Mine 
Act was reasonable.  Id. at 26-29. Finally, the Secretary 
argues that her position, on which the underlying litigation 
was based, was consistent and reasonable. Id. at 29-33.

     Black Diamond responds that the Secretary's position was 
not reasonable and that such an analysis cannot be divorced 
from a consideration of the merits of her position.  B.D. 
Resp. Br. at 7-9.  Black Diamond contends that Inspector 
Thompson, who issued the citations, was unfamiliar with the 
Plan, and that his deposition testimony indicates that he 
failed to adequately analyze Black Diamond's work.  Id. at 
10-12. Black Diamond argues that the Secretary acted contrary 
to her own regulationsand PPM in taking the position that 
construction workers were "miners" and that, therefore, her 
position was not justified. Id at 16-18.  Further, Black 
Diamond contends that the MSHA inspector erroneously 
overlooked the nature of the work at the impoundment site and 
instead looked exclusively at the hazards to which the workers 
were exposed. Id. at 19-20. Finally, Black Diamond concludes 
that the Secretary pursued the citations until hearing was 
imminent, without regard to her own policies, and that the 
judge's award of fees should be affirmed.  Id. at 24-25.


     EAJA provides that a prevailing party may be awarded
attorney's fees unless the position of the United States is
substantially justified.  Contractors Sand and Gravel, Inc.,
20 FMSHRC 960, 967 (Sept. 1998), appeal docketed, No. 98-1480 
(D.C.Cir. Oct. 20, 1998).  The Supreme Court has defined 
substantially justified as "justified in substance or in the 
main," or a position that has "a reasonable basis both in law 
and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
In Pierce, the Court set forth the test for substantial 
justification as follows:  "a position can be justified even 
though it is not  correct,  and  we  believe  it  can  be 
substantially (i.e., for the most part) justified if a 
reasonable person could think it correct, that is, if it has 
a reasonable basis in law and fact." Id. at 566 n.2. The 
Court also noted that certain "`objective indicia' such as 
the terms of a settlement agreement, the stage in the 
proceedings at which the merits were decided, and the views 
of other courts on the merits" can be relevant to the inquiry 
of whether the government's position was substantially
justified.  Id. at 568.  In EAJA proceedings, the agency 
bears the burden of establishing that its position was 
substantially justified.  Lundin v. Mecham, 980 F.2d 1450, 
1459 (D.C. Cir. 1992).  When reviewing an administrative law 
judge's EAJA decision, the Commission applies the substantial 
evidence test for factual issues and de novo review for legal 
issues. Contractors, 20 FMSHRC at 966-67.

     "Position of the agency" is defined as "in addition to 
the position taken by the agency in the adversary adjudication, 
the action or failure to act by the agency upon which the 
adversary adjudication is based."  5 U.S.C.  504 (b)(1)(E). 
Here, the focus is on the Secretary's prelitigation conduct - 
the action or inaction that gave rise to the litigation that 
was aborted. The Secretary states in her brief that she chose 
to withdraw the citations against Black Diamond when she became 
aware of "disagreement among MSHA's personnel" concerning 
whether the work in question was construction work.  S. Br. 
at 32-33.  The Secretary further argues that her position 
throughout the prelitigation period, until the time of 
depositions, was consistent.[8]  Id. at 30-32.  The facts 
surrounding the issuance of the citations are, for the most 
part, undisputed.  S. Br. at 27.  Substantial justification 
turns largely on the language of the PPM and Black Diamond's 
Impoundment Elimination Plan. Therefore, whether there is a 
reasonable basis in law and fact for the Secretary's position 
involves primarily a legal analysis of these operative 
documents and the undisputed facts.

     Part 48 of the Secretary's regulations, which covers 
the training and retraining of miners, excludes "construction
workers" from the definition of "miner" at surface areas 
of underground mines.  30 C.F.R.  48.22(a)(1)(i).  The 
regulations  do not further define construction workers or 
describe their work functions.  MSHA's PPM also excludes the 
employees of independent contractors who are involved in 
surface construction work.  III MSHA, PPM, Part 48, at 14.  
The PPM further provides that "[c]onstruction work includes 
the building or demolition of any facility."  Id. at 14b.  
The PPM also specifies that a person performing maintenance 
or repair work must be trained in accordance with the 
regulations, and that "[m]aintenance or repair work includes 
the upkeep or alteration of equipment or facilities." Id. at 
15.  The relevant terms in the PPM are not further defined 
or given a technical usage.  Accordingly, the Commission 
looks to the ordinary meaning of these terms.  See Bluestone 
Coal Corp., 19 FMSHRC 1025, 1029 (June 1997) (applying this 
rationale to the language of a regulation).

     The record shows that Inspector Thompson was aware that
Black Diamond was an independent contractor performing
construction work at the mine site.  20 FMSHRC at 1177. 
Further, the Plan, which was submitted to MSHA, described the 
essential nature of the work that Black Diamond was performing. 
Thus, the Plan stated that the impounding capability of the 
Spruce Lick Fork coal refuse facility[9] was being eliminated 
to facilitate longwall mining in an underground mine. Plan at 
2. In order to eliminate the impoundment, it had to be drained, 
filled with over 1.4 million cubic yards of coarse coal refuse
over coal fines, and graded.  Id.; 20 FMSHRC at 1177.  As the 
impoundment was pumped dry, coal refuse was to be pushed down 
from the slope of the impoundment.  20 FMSHRC at 1177.  In 
addition, coal refuse that made up the dam would be used as 
fill. Id. Black Diamond would build diversion ditches, dikes, 
and ponds to ensure that the storm water did not go back into 
the impoundment area. Plan at 3.

     The PPM specifically provides that construction work
includes "demolition."  PPM at 3.  As the judge noted, the
dictionary definition of "demolition" is "the act or process 
of demolishing," and "demolish" means to "do away with" 
something. 20 FMSHRC at 1178, quoting Webster's Third New 
Int'l Dictionary 600 (1986).  The judge found that Black 
Diamond's work was directed at eliminating the impoundment. 
Id. The essential elements of the impoundment, the dam and 
the water behind it, were being eliminated. Id. The basic 
structural design of the impoundment was changing. Id. As 
the judge concluded: "In effect, the dam would cease to be 
a dam."  Id. at 1177.  Thus, based on the undisputed facts 
and the Plan, the judge concluded that Black Diamond was 
engaged in the demolition of the impoundment. Id. at 1178.

     In addition to the demolition work, the record further
indicates that Black Diamond was engaged in construction work 
at the site as well. Thus, once the water behind the dam was
drained, Black Diamond's work included filling and grading in 
the impoundment area, and building sludge cells, drainage 
ditches, and ponds.  20 FMSHRC at 1178; see Plan at 2-4; 
Shelton Dep. at 12.  In short, the work being performed by 
Black Diamond involved both demolition and building and, 
therefore, fell well within the parameters of the PPM's 
description of construction work.

     The Secretary's primary argument in support of her 
position that the impoundment elimination work constituted 
"alteration" work is that the impoundment was a coal refuse 
facility before its elimination and remained one after. S. 
Br. at 16-19. However, as the judge noted, the  fact that 
impoundments and coal refuse facilities are  governed  by 
separate regulations  (see  30  C.F.R.   77.214  through 
77.215-4 and 30 C.F.R.  77.216 through  77.216-5),  and 
treated as "totally different  facilities"  undercuts  the 
Secretary's position that Black Diamond was only maintaining 
or repairing the impoundment when it eliminated its
impounding capabilities. 20 FMSHRC at 1178.[10]

     Finally, the Secretary makes two related arguments in
contending that the judge erred when he rejected her
interpretation of the PPM.  The Secretary asserts that she
broadly construed the PPM in order to maximize coverage of
workers under the Mine Act. S. Br. at 20-22. The Secretary
further argues that she sought to cover Black Diamond's 
workers in order to protect them from hazards similar to
those miners are exposed to.[11] Id. at 25-29. However, both 
arguments ignore the plain meaning of the term "construction 
work" as it is used in the PPM. Moreover, as the judge noted, 
giving undue emphasis to the hazards contractor employees are 
exposed to would render meaningless the exceptions to Mine 
Act coverage.  20 FMSHRC at 1178.

     The dissent's assertion (slip op. at 16) that "up until 
the time of the Shelton Deposition, the Secretary's action in
pursuing this action had a reasonable basis in law and fact," 
is inconsistent with the record.[12]  MSHA did not first learn 
of the "internal dispute" within the agency (concerning 
whether Black Diamond's employees were covered by the training
regulations) at the February 18, 1998 deposition or the meeting
of its experts on February 20.  Rather, MSHA learned of it no
later than June 25, 1997, at the post-inspection conference 
with Black Diamond, when president William Casto explained why 
Black Diamond was not in violation and brought to MSHA's 
attention the disagreement among its own personnel.  It is 
hardly reasonable for a litigant to be forced to bear the 
considerable cost of defending itself over many months, 
including preparing for trial, while an enforcement agency 
ignores essential information brought to its attention at the 
outset.[13]  The conflicting interpretations of the regulation 
by MSHA's own officials that led MSHA to drop this case could 
have been discovered much sooner, with a minimum of effort by 
agency personnel.

     In agreement with the administrative law judge, we 
conclude that the Secretary has failed to establish that her 
position was substantially justified during the pre-litigation 
stage of the case.  As the judge noted, the essence of 
substantial justification "is whether `reasonable people could 
genuinely differ.'" Id. at 1175.  On the basis of the clear 
language of the PPM, the Impoundment Elimination Plan, and the 
uncontested facts, we agree with the judge's determination that 
the Secretary's position was not reasonable in law and fact.


                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's decision
to grant the award, and we remand this case to  the  judge  to 
provide Black  Diamond  the  opportunity  to  amend  its  EAJA 
application to include the reasonable fees and expenses incurred 
in defending its award before the Commission.


                                Mary Lu Jordan, Chairman
                                
                                James C. Riley, Commissioner
                                
                                Theodore F. Verheggen,
                                  Commissioner
                                                                
                                Robert H. Beatty, Jr.,
                                  Commissioner


**FOOTNOTES**

     [1] Judge  Jerold  Feldman  presided over the Mine Act
proceeding and issued the order dismissing  the  proceeding;
however, the EAJA application was assigned to Judge Barbour.

     [2] The facts in this case were developed largely as a
result of discovery during the Mine Act proceeding. However,
because there was no hearing in that matter, those facts only
became a part of the record during the EAJA proceeding. See 
29 C.F.R.  2704.306(c).

     [3] Section 48.25(a) provides in pertinent part: "Each
new miner shall receive no less than 24 hours of training as
prescribed in this section."

     [4] Section  48.29(c)  provides:  "Copies  of training
certificates for currently employed miners shall be kept at 
the mine site for 2 years, or for 60 days after termination
of employment."

     [5] The Secretary also opposed the application on the
grounds that Black Diamond was ineligible for an award because
its parent company exceeded  the  net  worth requirements in 
EAJA and challenged the amount of fees sought  because the 
hourly rate exceeded the statutory cap of $125 per hour in  
EAJA.  20 FMSHRC at  1172.  The judge found in Black Diamond's 
favor on the net worth  determination  (id. at 1174-75), and 
the Secretary has not appealed.  With regard to the statutory 
cap, the judge determined that Black Diamond could  not  
recover fees at a rate higher than $125 per hour. Id. at 
1179-80.

     [6] The Secretary attached affidavits to its Answer to 
the EAJA Application that indicated that two additional MSHA
officials had differing opinions on the nature of Black 
Diamond's work.  S. Answer to EAJA Appl., Attach. F, G.

     [7] Commission EAJA Rule 306(c) provides:

          If the proceeding for which fees and expenses
          are  sought was conceded by the Secretary  on
          the merits,  withdrawn  by  the Secretary, or
          otherwise settled before any  of  the  merits
          were  heard,  the applicant and the Secretary
          may supplement the administrative record with
          affidavits or other documentary evidence.

     [8] Significantly, the Secretary continues to argue in 
support of the position that was the basis for the citations 
and that she abandoned  when  the citations  were  vacated
because of disagreement  among  her  experts (supra at 5 & 
n.6). Thus, the Commission has not been asked to determine 
if the Secretary's position at the time of the issuance of 
the citations was reasonable and became unreasonable at some 
later time. Cf. Leeward Auto Wreckers, Inc. v. NLRB, 841 
F.2d 1143, 1148 (D.C. Cir. 1988) (resolving conflict in 
evidence available to the  NLRB General Counsel at different
stages in the litigation process for purposes of determining  
whether the General  Counsel's  position  was substantially 
justified). Rather, the Secretary's prelitigation position 
that the  Commission  must  examine  is  the  same  as  her  
litigation position would have been had she gone to trial - 
application of the  Part  48 training regulations and the
PPM to the work being performed under the Plan.

     [9] According to the Plan, the Spruce Lick Fork coal 
refuse facility had been idle during the 5 years preceding 
the submission of the Plan. Plan at 2.


     [10] The  judge  noted  two  decisions  by  other
administrative law judges that the Commission did  not  
review. In Dakco Corp., 10 FMSHRC 1259, 1259, 1289-90, 1293
(Sept. 1988) (ALJ), the judge vacated citations, which 
charged violations of the training regulations, against a 
contractor who was renovating a coal preparation  plant. 
The work involved "extensive demolition, rebuilding, 
renovation, and installation" of new equipment. Id. at 1289. 
In Frank Irey, Jr., Inc., 11 FMSHRC 990, 991-94, 996 (June 
1989) (ALJ), the judge upheld citations against a contractor 
who failed to comply with the training regulations when his 
employees were performing renovation work on a coal 
preparation plant, "the basic structural design" of which 
did not change. Id. at 993. The instant case  appears  
similar to Dakco and, in contrast to Frank Irey, the basic
structure of the impoundment was being materially changed. 
As the Supreme Court noted  in Pierce v. Underwood, the  
views of other courts  can  be relevant to the inquiry of  
whether the government's position was substantially justified. 
487 U.S. at 567. While  unreviewed  judges' decisions are not
binding legal precedent (see 29 C.F.R.  2700.72), nonetheless 
the reasoning in the decisions discussed above is helpful in 
this proceeding.

     [11] Commissioner Marks states that "[u]ntrained persons 
on mine property present a grave safety risk to themselves 
and others." Slip op. at1 6. We  certainly  agree with this
fundamental principle. The Secretary never argued that the 
training exclusions in these regulations were based on a  
determination that construction  workers on a mine site are
exposed to less hazardous conditions than workers covered 
under the training regulations, nor is that a premise of our
opinion. The problem is that, for reasons unknown to us, a 
void exists in MSHA's training  regulations  regarding 
construction workers. See 43 Fed. Reg. 30990 (1978) ("[T]hese 
two categories of  workers [construction workers and shaft 
and slope sinkers] were to be covered under subpart C, which 
is  still  in the drafting stages. . . ."); cf. 64 Fed. Reg. 
53080, 53130 (1999) (to be codified at 30 C.F.R. pt. 46) 
(requiring training  and retraining at sand and gravel mines 
for "[a]ny construction worker who is exposed to hazards of 
mining operations"). We are certainly cognizant of this 
problem, but are not prepared to ignore the explicit language 
of 30 C.F.R.  48.22(a)(1)(i) or  sanction  actions  by  the  
Secretary  that  unilaterally  permit  her  to  expand  the
existing standard to fill the vacuum.

     [12] Contrary to our dissenting colleague's suggestion 
(slip op. at 16), no evidence emerged at the deposition of 
MSHA's impoundment expert, Shelton, that changed the factual 
basis for the citations in this case. Rather, as the 
Secretary readily admits (S. Answer to  EAJA Appl. at 17-18; 
S. Br. at 32-33),  the deposition  simply  resulted  in  a
realization that there was an "internal dispute" at MSHA  
regarding the legal interpretation  of impoundment sites and
refuse facilities. This disclosure is readily distinguishable 
from the cases cited by the dissent in which there  was 
disclosure of factual evidence at trial by non-governmental 
witnesses. See  Blaylock Elec. v.  NLRB,  121 F.3d 1230, 
1235-36 (9th Cir. 1997) (NLRB's General Counsel had reasonable
basis for pursuing complaint through trial where employer's 
rebuttal case was  dependent  on  judge  crediting  employer  
witnesses); Quality C.A.T.V., Inc. v. NLRB, 969 F.2d 541,
545 (7th  Cir.  1992) (General  Counsel  was substantially 
justified in issuing complaint but evidence adduced at trial 
made further pursuit unreasonable); Leeward Auto Wreckers,
841 F.2d at 1148 (General Counsel should have withdrawn  
complaint  once employer presented undisputed evidence at 
trial).

     [13] Commissioner Riley observes that such matters  
should be resolved at the earliest possible opportunity 
during the pendency of a case, preferably when, or soon  
after, the litigant  first  raises  them  at  the  post-
inspection conference. He notes there is little point to 
a post-inspection conference, if this last informal 
opportunity  to  resolve  misunderstandings  and  provide
clarification before formal charges are brought is 
squandered because MSHA does not exercise due diligence in 
ascertaining its own position on its regulation or give any
consideration to the operator's position.


Commissioner Marks, dissenting:

     Because I conclude that the Secretary was "substantially
justified" in bringing this action and in litigating it as 
far as she did, I dissent and would reverse the judge's EAJA 
award.

     Under EAJA, a prevailing party may receive an award 
unless the position of the agency was "substantially 
justified" or special circumstances make an award unjust.  
5 U.S.C.  504(a)(1).  The position of the agency can be 
justified within the meaning of EAJA even though it is not 
correct or prevailing. Pierce (HUD) v. Underwood, 487 U.S. 
552, 566 n.2, 569 (1988). Moreover, the government's position 
cannot be viewed as unjustified simply on the ground that 
proceedings were voluntarily terminated on terms unfavorable 
to it.  Id. at 568-69; Kuhns v. Board of Governors of Fed.
Reserve Sys., 930 F.2d 39, 44 (D.C. Cir. 1991).

     In interpreting "substantially justified," the Supreme 
Court rejected any connotation of the phrase that required
"justifi[cation] to a high degree" and instead held that
substantial justification was met when a position was 
"`justified in substance or in the main' - that is, justified 
to a degree that could satisfy a reasonable person."  Pierce, 
487 U.S. at 565.  A position  is substantially justified if 
it has a reasonable basis both in law and fact."  Id.  The 
Court of Appeals for the D.C. Circuit has held that "[t]o 
show substantial justification for its position, the 
[government] did not have to demonstrate that a large amount 
of evidence supported it." Kuhns, 930 F.2d at 43. In addition, 
the Secretary's position can be substantially justified even 
if the position is unsupported by substantial evidence on 
the record as a whole.  Welter v. Sullivan, 941 F.2d 674, 
676 (8th Cir. 1991).

     At issue in this case is not whether the Secretary would
have succeeded on the merits, but instead whether the 
Secretary's position, which required the two workers to have 
training pursuant to 30 C.F.R.  48.25(a), was substantially 
justified. The judge however incorrectly evaluated the merits 
when making his EAJA determination.  20 FMSHRC at 1179 ("I 
conclude a reasonable person would have found the Secretary 
was both wrong and unreasonable . . . .").  Not only did the 
judge fail to employ the proper and lesser standard for EAJA 
cases, but the judge failed to adequately consider the 
Secretary's justification for her position as well as the 
circumstances that led up to the Secretary's dismissal of her 
case.[1]

     After a complete review of the Secretary's position and 
her responsible action of dismissing this case, I conclude 
that the record can support only one conclusion - that the 
Secretary was eminently justified in bringing this action and 
in dismissing it when she did.

     Prior to the February 18, 1998 deposition of MSHA
Impoundment expert, Stuart Shelton,  the agency's position 
was that the work being performed was "maintenance or repair 
work" not construction work.  S. Answer to EAJA Appl. at 17. 
The Secretary asserted that "Black Diamond was modifying a 
refuse facility from an impoundment to a refuse pile by 
eliminating the impounding capability of the facility" and 
that "Brian Casto and Matthew Adkins were not demolishing an 
existing facility and constructing a new one."  Id.  The 
Secretary's position that Black Diamond was performing 
alteration work to the refuse site was a reasonable view of 
the evidence and the law and, as such, it was a reasonable 
position in law and fact.  Welter, 941 F.2d at 676 (stating 
that, because "`at least one permissible view of the evidence' 
shows a reasonable basis in law and fact for the Secretary's 
position," claimants were not entitled to fees).

     MSHA Inspector Thompson who issued the citation 
determined that Black Diamond was only modifying the refuse 
site from an impoundment to a refuse pile.  Thompson Dep. at 
11, 40.  He stated that "they were going to pump the 
impoundment dry and backfill it with refuse."  Thompson Dep. 
at 29.  As they were performing alteration work, the workers 
did not qualify as construction workers that were exempt from 
training under Part 48.[2]  Additionally, Thompson observed 
that the two workers were performing general labor duties on 
mine property and were exposed to the hazards of mining.  
Thompson Dep. at 79-80, 101.  Without proper training, these
workers were a hazard to themselves and others on the mine 
property.  Thompson Dep., Ex. 1.  Thompson's view was 
supported by MSHA Supervisor Ellis, who similarly considered 
the work being done by Black Diamond as an "alteration" of a 
refuse site.  Ellis Dep. at 15.  Ellis informed William Casto 
at the Health and Safety Conference that MSHA never considered 
the elimination of an impoundment to be major construction.  
W. Casto Dep. at 35; S. Answer to EAJA Appl. at 7.

     MSHA's view was based on the premise that both 
impoundments and refuse piles are refuse sites and that 
altering one to the other did not qualify as major 
construction.  Such a view was not unreasonable given that 
both impoundments and refuse piles are for refuse disposal. 
See  MSHA Handbook 89-V-4, Coal Mine Impoundment Inspection 
Procedures (Sept. 1989) (refuse facilities are classified as 
impounding and non-impounding).[3]  Similarly, the dictionary 
definition of "alter" is "to make different: modify."  
Webster's II New Riverside University Dictionary 96 (1994). 
"Modify" is in turn defined as "to change in form or 
character." Id. at 762.  The dictionary definitions support
MSHA's view that modification of the refuse site was an
alteration as set forth in the PPM. Moreover, both the judge
and the majority incorrectly view that MSHA was unreasonable
because refuse piles and impoundments are subject to different
regulations.  However, there was nothing in the Act, in the
regulations, or in binding Commission law that conclusively
stated that they were distinct structures, such that the
Secretary's view was an unreasonable construction of her own
regulations and policies.  Indeed, the judge erred in failing 
to account for the deference owed to the Secretary's 
interpretations of her own regulations.  30 C.F.R.  48.22 
excludes construction workers from the definition of miner.  
The standards however are silent as to the meaning of a 
construction worker.  Where a regulatory provision is unclear 
or silent, deference is accorded to an agency's reasonable 
interpretation of its own regulations. Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 
(1984); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 
(D.C. Cir. 1994); Secretary of Labor ex rel. Bushnell v. 
Cannelton Industries, 867 F.2d 1432, 1435 (D.C. Cir. 1989) 
("The Secretary is emphatically due this respect when she
interprets her own regulations.").  The majority also fails 
to consider the deference owed to the Secretary's construction 
of section 48.22.

     Further, the Secretary's construction of the PPM was
reasonable because there has been no governing precedent by 
this Commission that alteration of an impoundment to a refuse 
site qualified as a construction project.[4]  It must be 
remembered that MSHA's PPMs are not binding on the Secretary 
and do not have the same force and effect of law as the Mine 
Act itself or the Secretary's standards and regulations.  
D.H. Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (Sept. 1996); 
King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981); see also 
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 
(D.C. Cir. 1986) (reversing Commission which improperly 
regarded the Secretary's general statement of his enforcement 
policy as a binding regulation which the Secretary was 
required strictly to observe).  Thus, the judge erred when he 
stated that "the pronouncements and policies set forth in the 
PPM are equivalent to the Act and regulations for EAJA 
purposes, and the Secretary cannot take an enforcement 
position that unreasonably varies from the PPM without 
subjecting herself to EAJA liability." 20 FMSHRC at 1176.

     In addition, the Secretary's position was reasonable 
because she is charged with enforcing the Mine Act in a 
manner that furthers its remedial purposes.  Cannelton, 867 
F.2d at 1437; Menlo Service Corp., 765 F.2d 805, 809 (9th 
Cir. 1985). Accordingly, the Secretary was justified in 
narrowly construing any exemption to mine safety training.  
These individuals posed a grave risk of harm to themselves 
and others.  According to the deposition of Inspector 
Thompson, Brian Casto had trouble getting the truck into 
gear.  Thompson Dep. at 33-34.  He did not know how to make 
a pre-shift examination of a truck.  Thompson Dep. at 34.  
The UMWA representative observed Brian Casto not only
driving the truck on mine property but out on a boat on 
the impoundment, which posed a high danger of drowning.  
Thompson Dep. at 67-69, 78-80.  In addition, the dozer 
operator William Adkins had gotten too close to the edge of 
the impoundment in one instance. Thompson Dep. at 77, 98-99. 
The slurry that is located on the edge of impoundment is 
like quicksand and very hazardous.  Thompson Dep. at 98.  
Untrained persons on mine property present a grave safety 
risk to themselves and others. Thompson Dep. at 101.  
Therefore, I can only view Inspector Thompson's decision to 
issue the citation and order to withdraw these two 
individuals from the mine property until adequate training 
and training certification were obtained as completely
reasonable and in furtherance of his duties as a safety
inspector.

     I conclude that, up until the time of the Shelton
Deposition, the Secretary's action in pursuing this action 
had a reasonable basis in law and fact.  On the afternoon of 
Wednesday, February 18, 1998, Shelton, an impoundment expert, 
testified that a site cannot be both legally an impoundment 
and a refuse pile. Shelton Dep. at 29. On Friday, February 20, 
Secretary's counsel met with agency experts who gave 
conflicting opinions as to whether the work was construction 
or alteration and maintenance work.  S. Answer to EAJA Appl. 
at 18, Attach. F, G.  Although in Public Citizen Health 
Research Group v. Young, 909 F.2d 546, 552 (D.C. Cir. 1990), 
the court held that conflicting expert opinions on a 
particular issue indicated that the government's litigating
position was substantially justified, the Secretary chose to
dismiss the case.  One business day after the experts were
consulted, on Monday, February 23, MSHA dismissed the suit. 
The judge never addressed the Secretary's argument that "the 
decision to vacate the order and citation" was grounded in a 
conflict of opinions within the agency.  S. Answer to EAJA 
Appl. at 16.  Nor did he discuss the reasonableness of the 
Secretary's action in dismissing the claim three business 
days after the deposition of Shelton and one business day 
after consultation with the MSHA experts.

     When other agencies have similarly acted, no award has 
been granted.  In Blaylock Elec. v. NLRB, 121 F.3d 1230 (9th 
Cir. 1997), the General Counsel withdrew its complaint one 
month after hearing and the day before post-hearing briefs 
were due.  In denying fees under EAJA, the court opined that, 
although the General Counsel was unlikely to prevail on the 
merits, the ultimate determination would depend upon whether 
the judge credited certain testimony.  Id. at 1235-36. 
Because of this, the General Counsel was substantially 
justified in pursuing the case through trial, notwithstanding 
the relative weakness of its case.  Id.  So too, examining 
the evidence prior to the Shelton deposition, if the judge 
had credited the testimony of the Inspectors Thompson and 
Ellis, although it might have been a close case, the 
Secretary may well have prevailed on the merits. See Welter, 
941 F.2d at 676 (holding that the Secretary's reliance on 
experts and on some contradictory and inconsistent evidence 
was sufficient to support the Secretary's position, although 
the court recognized that the case was a close one, because 
"[c]loseness itself is evidence of substantial justification"). 
Thus, an EAJA award was not warranted for the time preceding 
the Shelton deposition.[5]

     Moreover, the Secretary's prompt dismissal, only three
business days after the deposition and prior to hearing, was
a reasonable action, certainly undeserving of a fee award. 
In Blaylock, the Court of Appeals for the Ninth Circuit 
determined that the agency's action of dismissing its case a 
month after the hearing and one day before post-hearing briefs 
were due was objectively reasonable and did not warrant an 
EAJA award. 121 F.3d at 1236.  In Quality C.A.T.V., Inc. v. 
NLRB, 969 F.2d 541 (7th Cir. 1992), and Leeward Auto Wreckers, 
Inc. v. NLRB, 841 F.2d 1143, 1148 (D.C. Cir. 1988), the courts 
held that the government was substantially justified in 
initially raising and arguing its cases, but that when the 
hearings revealed conclusively that the cases lacked merit, 
the protective mantle of substantial justification was lost 
at the hearings' end.  Fee awards began at the conclusion of, 
and not before or during, the trial.  Leeward Auto, 841 F.2d 
at 1149 (judge decided that EAJA fees accured during the 
hearing, but appellate court clarified that EAJA fees should 
accrue at the conclusion of the hearing). Applying the same 
reasoning to the instant case, even if the Secretary's theory 
arguably lost its substantial justification once the conflict 
of opinions became apparent,  no  EAJA  award  would  accrue 
because she acted so quickly in  dismissing  the  case  and 
before any hearing began.[6]

     MSHA's decision to prosecute this case as long as she 
did and then to dismiss it promptly, before any expenses of 
trial were incurred, was reasonable in law and fact.  The 
Secretary's conduct was laudable and responsible, certainly 
not the type of action where an EAJA award is justified.  
Therefore, I would reverse the judge and vacate the EAJA 
award.


                              Marc Lincoln Marks, Commissioner


Distribution

Julia K. Shreve, Esq.
Jackson & Kelly, PLLC
P.O. Box 553
Charleston, WV 25322

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

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


**FOOTNOTES**

     [1] I disagree with the majority's characterization of 
the Secretary's argument to the Commission and the judge.   
Slip op. at  8 n.8.  The Secretary asked the judge to make a 
determination on the reasonableness of its action in 
dismissing its case once a conflict of opinion was discovered 
within the agency. S. Answer to EAJA Appl.  at  18-19.  The 
Secretary now seeks review of that determination, asking the 
Commission to review the reasonableness of her decision to 
dismiss  the  case  (S. Br. 33) as well as the reasonableness 
of her litigating position  from  the  time  Black Diamond 
was cited to the time the case was dismissed.

     [2] In order to conclude that Black Diamond's work was
characterized as "construction," the majority and the judge
incorrectly refer to Inspector Thompson's isolated comment 
that, prior to inspecting  the  mine,  he  heard  that 
construction was going on at the site.  Slip op. at 8; 20 
FMSHRC  at  1177 (citing Thompson Dep. at 29).  However, 
Inspector Thompson's comment does not indicate  that he or  
MSHA had evaluated the mine and determined that construction, 
as the term "construction" is used in the Secretary's  
regulations, was underway.  Instead, Thompson was consistent 
in  his  testimony  that  Black  Diamond  was  performing 
maintenance/alteration work and not construction work under 
the Secretary's regulations.  Thompson  Dep.  at 11, 40. In 
the case of Frank Irey Jr., Inc., 11 FMSHRC 990, 995  (June  
1989)  (ALJ), Judge  Melick  likewise  recognized that 
maintenance workers that are  subject  to the existing  MSHA  
training  regulations  could perform work that  might  be 
colloquially considered construction work.  Thus, Thompson's 
reference that he heard that construction work was underway 
is certainly  not  dispositive  of  whether the work  was  
construction or maintenance work under the Secretary's
regulations.

     [3] The Commission may take judicial notice of MSHA 
public documents.  Secretary of Labor on behalf of Acton v. 
Jim Walter Resources, Inc., 7 FMSHRC 1348, 1355 n.7 (Sept. 
1985).

     [4] In concluding  that  the  Secretary's position was 
notcorrect, the judge relied on two judge's decisions which 
involved this  issue.   20  FMSHRC  at  1178  &  n.4.   Of  
course,  these decisions   do   not   represent  "what  the 
law is" because administrative law judge decisions are not 
legal precedent. Contractors Sand  and  Gravel,  Inc.,  20  
FMSHRC 960, 972 (Sept. 1998); Commission Rule 72, 29 C.F.R. 
 2700.72.   In  any  event, neither case dealt with 
modification of refuse sites and the Irey case,  11  FMSHRC  
990,  can  be reasonably viewed to support the Secretary's 
position. In that case, the judge held  that  in maintenance
work "the  basic structural design was not changed" and that
maintenance work  could involve work that was considered
construction work. Id. at 993, 995. Under the Secretary's 
view, the  refuse facility would be altered by work that
could be considered  construction  work, but its basic 
purpose as a refuse site

would remain. Thus, the Irey case supports the Secretary's
interpretation that Black Diamond was engaged in maintenance 
work at the mine.

     [5] Contrary  to the majority's misapprehension of my 
view and the record, the deposition testimony of MSHA's expert 
Shelton never changed the factual basis of this case. Slip op. 
at 10-11 & n.12. The facts were largely  undisputed  right 
from the start of this case and never changed. What changed  
is that MSHA realized that there was an internal conflict in 
its interpretation on the afternoon of February 18, 1998.  
Prior to that time (and probably even following, see Public 
Citizen, 909 F.2d  at  552), MSHA was completely justified  
in pursuing its complaint against Black Diamond because its 
case was dependent on whether a judge, charged with weighing 
the merits, was  going  to  credit  the  testimony  of  MSHA 
Inspectors Thompson and Ellis. See Blaylock, 121 F.3d at 
1235-36.

     [6] The majority relies on a slim morsel to harshly
criticize the timing of the Secretary's dismissal. Relying 
on the uncorroborated deposition testimony of William Casto 
(W. Casto Dep. at 35-36), who alleges that, at the June 
Health and Safety Conference,  he  stated  that  the  MSHA  
Mt.  Hope Office informed  him  that  construction  workers  
are  not  subject  to training, the majority speculates that
MSHA could have discovered the  agency conflict much sooner. 
Slip op. at 11 & n.13. The problem with the majority's 
speculation is that Mr. Casto did not testify that the Mt. 
Hope Office gave him an opinion that the specific work Black 
Diamond was performing qualified as construction work as  
opposed to maintenance work, as those terms are construed 
in the Secretary's regulations.