NOVEMBER 1999

COMMISSION DECISIONS AND ORDERS
11-02-99 The Doe Run Company
11-03-99 Black Diamond Construction, Inc.
11-30-99 Sec. Labor on behalf of Walter Jackson v.
Mt. Top Trucking, et al.
11-30-99 Nolichuckey Sand Company, Inc.

CENT 2000-1-M
EAJ 98-1

Pg. 1183
Pg. 1188

KENT 95-613-D
SE
99-101-RM

Pg. 1207
Pg. 1218

WEVA 99-71-D
VA
99-128
WEVA98-39
PENN 99-154-D

Pg. 1225
Pg. 1233
Pg. 1235
Pg. 1254

WEVA 99-121-D
WEST 98-290
KENT99-134

Pg. 1258
Pg. 1263
Pg. 1272

ADMINISTRATIVE LAW JUDGE DECISIONS
11-03-99 Anthony Williams v. Oasis Contracting, Inc.
11-03-99 Donald J. Riffe employed by Knox Creek Coal
11-16-99 Eagle Energy Incorporated
11-18-99 William Kaczmarczyk v. Reading Anthracite Co.
11-24-99 Sec. Labor on behalf of Lewis Frank Bates v.
Chicopee Coal Company
11-26-99 C.W. Mining Company
11-29-99 Dags Branch Coal Co., Inc.

i

NOVEMBER 1999

Review was granted in the following cases during the month of November:
Secretary of Labor, MSHA v. Target Industries, Inc., and Phillip Peterson and Gregory
Golden, Docket Nos. PENN 97-170, etc. (Judge Barbour, September 23, 1999)
Local Union 2232, District 20, United Mine Workers of America v. Island Creek Coal
Company, Docket No. VA 99-79-C. (Judge Weisberger, October 6, 1999)
Cyprus Cumberland Resources Corporation v. Secretary of Labor, MSHA, Docket
No. PENN 98-15-R. (Judge Feldman, October 8, 1999)

Review was denied in the following case during the month of November:
James C. Keys, Sr. v. Reintjes of the South, Inc., Docket No. CENT 99-267-DM.
(Judge Zielinski, October 13, 1999)

ii

COMMISSION DECISIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 2, 1999

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT 2000-1-M
A.C. No. 23-01787-05542

THE DOE RUN COMPANY

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

ORDER

BY: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On October 1, 1999, the Commission received a request from
the Doe Run Company ("Doe Run") to reopen a penalty assessment that had become a final order
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The
Secretary of Labor does not oppose the motion for relief filed by Doe Run.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
Doe Run asserts that it intended to contest the proposed penalty associated with Citation
No. 7860390 but that it did not submit a green card because it inadvertently paid the assessment
along with sixteen other assessments it intended to pay, which were issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA") at the same time. Mot. at 2. Doe
Run asserts that it received Citation No. 7860390 on March 11, 1999, and that it filed a Notice of
Contest of that citation on April 6, 1999. Id. at 1-2. Such contest was assigned Docket No.
CENT 99-198-RM to Administrative Law Judge Gary Melick, who subsequently stayed the
1183

contest proceeding pending the issuance of the proposed penalty assessment. Id. at 2. On April
22, 1999, MSHA issued the proposed assessments for seventeen citations, including $55 for
Citation No. 7860390. Id. Doe Run asserts that it did not submit a green card with respect to the
proposed penalty for Citation No. 7860390 because the employee normally responsible for the
initial review of any proposed assessment, the safety administrator, was out of the country on
assignment. Id. at 2-3. Doe Run contends that, as a result of the apparent lack of coordination
between its employees in the safety administrator's absence, it inadvertently paid the assessment
for Citation No. 7860390. Id. Accordingly, Doe Run requests relief under Fed. R. Civ. P. 60(b).
Attached to Doe Run' s motion are various documents, including the proposed assessments issued
by MSHA, a request for check and a copy of Doe Run's check for payment of the seventeen
assessments. Exs. 1 & 2.
We have held that, in appropriate cases and pursuant to Rule 60(b), we possess
jurisdiction to reopen uncontested assessments that have become final by operation of section
105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal
Co., 16 FMSHRC 1931, 1932 (Sept. 1994). We have also observed that default is a harsh
remedy and that, if the defaulting party can make a showing of adequate or good cause for the
failure to timely respond, the case may be reopened and appropriate proceedings on the merits
permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In
accordance with Rule 60(b)(l), we have previously afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See National Lime & Stone, Inc., 20
FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997).
It appears from the record that Doe Run intended to contest the penalty related to Citation
No. 7860390 and that, but for an apparent lack of coordination between the operator's personnel,
Doe Run would likely have returned the green card and contested the proposed penalty
assessment. While Doe Run does not deny receiving the proposed assessment, its failure to
submit the green card and payment of the proposed penalty assessment can be reasonably found
to qualify as "inadvertence" or "mistake" within the meaning of Rule 60(b)(l). See Cyprus
Emerald Resources Corp., 21FMSHRC592, 592-93 (June 1999) (granting motion to reopen
where operator supported its allegation that it mistakenly paid proposed penalty assessment with
an affidavit); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997) (granting
operator's motion to reopen where operator inadvertently paid assessment because Secretary
failed to send assessment to its counsel on record); Westmoreland Coal Co., 11 FMSHRC 275,
276-77 (Mar. 1989) (granting operator's motion to vacate dismissal and remanding for further
proceedings where operator asserted it mistakenly paid assessment); Tug Valley Coal Processing,
16 FMSHRC 216, 216-17 (Feb. 1994) (same).

1184

Accordingly, in the interest of justice, we grant Doe Run's unopposed request for relief
and reopen this penalty assessment that became a final order with respect to Citation No.
7860390. The case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

1185

Commissioner Beatty, dissenting:
On the basis of the present record, I am unable to evaluate the merits of Doe Run's
position and would remand the matter for assignment to a judge to determine whether Doe Run
has met the criteria for relief under Rule 60(b). See Tug Valley Coal Processing, 16 FMSHRC
216 (Feb. 1994) (remanding to judge to determine whether payment of proposed penalty
amounted to "genuine mistake" sufficient to reopen civil penalty proceeding); Westmoreland Coal
Co., 11 FMSHRC 275 (Mar. 1989) (same). I note that Doe Run has failed to provide any
affidavits to support its assertion that it mistakenly paid the assessment for a citation (No.
7860390) that it intended to contest. Compare Cyprus Emerald Resources Corp, 21 FMSHRC
592 (JUne 1999).

1186

Distribution

R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 201h Floor
Pittsburgh, PA 15219-1410
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1187

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.

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.

1188

I.
Factual and Procedural Background
A.

The Mine Act Proceeding2

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 and 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.

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."
1189

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].
1190

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.

1191

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

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.
1192

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 ofLabor on behalfof 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

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.

1193

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 regulations and 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 ')ustified 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)(l)(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

1194

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)(l)(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 facility9 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

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 ifthe Secretary's position at the time of the issuance of the citations was reasonable
and became umeasonable 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.
1195

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'/ 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
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. fu Frank
Irey, Jr., Inc., 11FMSHRC990, 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 ofwhetP,er
1196

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

the government's position was substantially justified. 487 U.S. at 567. While unreviewedjudges'
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. at 16. 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)(l)(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 ofMSHA'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, 121F.3d1230, 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)
1197

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 Irnpoundment
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.

(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 postinspection 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.
1198

ill.
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.

James C. Riley, Commissioner

1199

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)(l). The position of the agency can be justified within the meaning ofEAJA 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 ofFed. 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 ')ustifi[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

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.
1200

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 ofMSHA 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, 94 l 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.

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. Jn 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.
1201

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 tum 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

3

The Commission may take judicial notice of MSHA public documents. Secretary of
Labor on behalfofActon v. Jim Walter Resources, Inc., 7 FMSHRC 1348, 1355 n.7 (Sept.
1985).
4

In concluding that the Secretary's position was not correct, 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. fu 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

1202

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

would remain. Thus, the Irey case supports the Secretary's interpretation that Black Diamond
was engaged in maintenance work at the mine.
1203

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, 121F.3d1230 (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, ifthe 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

5

Contrary to the majority's misapprehension of my view and the record, the deposition
testimony ofMSHA's expert Shelton never changed the factual basis of this case. Slip op. at 1011 & 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.
1204

conflict of opinions became apparent, no BAJA 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 Lincofu. Marks, Commissioner

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.
1205

•

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

1206

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 30, 1999

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of WALTER JACKSON
v.

Docket No. KENT 95-613-D

MOUNTAIN TOP TRUCKING
COMPANY, INC., ELMO MAYES,
WILLIAM·DAVID RILEY, ANTHONY
CURTIS MAYES, and MAYES
TRUCKING COMPANY, INC.

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

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

In this discrimination proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman issued a Decision on Remand awarding relief to, among others, 1 truck driver Walter
Jackson. 21FMSHRC913 (Aug. 1999) (ALJ). On August 30, 1999, Mountain Top Trucking
Company ("Mountain Top"), Mayes Trucking Company, Elmo Mayes, Anthony Curtis Mayes,
and William David Riley (collectively the "operators"), filed a motion for relief from the judge's
Decision on Remand. After considering filings in opposition from both the Secretary of Labor
and Jackson, the Commission treated the operators' motion as a petition for discretionary review,
directed review, and stayed briefing. For the reasons that follow, we vacate the judge's damages
award and remand the case for further proceedings consistent with this opinion.

1

The Commission has since ordered severance of the discrimination dockets of two other
truck drivers that had been consolidated with this proceeding. See Secretary ofLabor on behalf
of Bowling v. Mountain Top Trucking Co., 21FMSHRC967 (Sept. 1999).
1207

I.
Factual and Procedural Background
Following an evidentiary hearing, the judge determined that the operators' discharge of
Jackson on February 17, 1995, violated Mine Act section 105(c)(l).2 19 FMSHRC 166, 181-86
(Jan. 1997) (ALJ). The judge subsequently ordered the parties to confer, in the hope that they
could stipulate to the amount ofbackpay the operators owed Jackson as part of his relief Id. at
204.
When the parties could not agree on the amount ofbackpay Jackson was owed, Jackson,
pursuant to the judge's order (id. at 205) and through private counsel, filed a Statement of
Backpay. 3 Thereafter, he provided copies of his tax returns for 1995 and 1996. As the result of a
further oral request by the operators and a conference call with the judge, Jackson's private
counsel, by letter dated March 21, 1997, addressed the source of interest income reflected on
Jackson's 1996 tax return. This item was described as interest on certificates of deposit Jackson
had purchased in 1996 with the proceeds from a judgment he received that year in a product
liability suit he had filed against General Motors Corporation. The suit stemmed from an eye
injury Jackson suffered in February 1991 when a wrench broke while he was changing a flat tire
on his pickup truck. In the letter Jackson's counsel further stated that "Jackson did not file a
disability claim regarding his eye injury, nor did it affect his ability to work during the backpay

2

Section 105(c)(l) provides in part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner ... because such miner ... has filed or made a complaint
under or related to [the Act], including a complaint notifying the
operator .. . of an alleged danger or safety or health violation in a
coal or other mine, ... or because of the exercise by such miner ...
of any statutory right afforded by [the Act].

30 U.S.C. § 815(c)(l).
3

Pursuant to the judge's request (19 FMSHRC at 205), the Statement addressed why
Jackson had withdrawn his application for temporary reinstatement to his position with the
operators prior to the August 1995 hearing on the application. According to the Statement,
Jackson had obtained "full-time employment with Cumberland Mine Service" ("Cumberland"),
and worked from August 1, 1995, until October 10, 1995, when he was laid off by Cumberland.
Statement ofBackpay for Walter Jackson (March 3, 1997), at 2. His compensation for those 10
weeks was $3,343. Id.
1208

period in this proceeding. Therefore, the matter is irrelevant to my client's claim for backpay
herein."
The judge subsequently ordered Jackson to supply certain additional information and the
parties to address certain legal issues. See 19 FMSHRC 661 (Mar. 1997) (ALJ). Most of the
order addressed Jackson's obligation to mitigate his damages, and questioned the extent to which
that obligation was satisfied in light of Jackson's withdrawal of his temporary reinstatement
application and later layoff from Cumberland. See id. at 663-64. However, in the fifth of the
seven enumerated requests for information, the judge stated:
( 5) The respondents have alleged that Jackson may have been party
in a pertinent disability proceeding. Has Jackson been a party in
any legal action or claim involving allegations of physical or mental
impairment? If yes, identify or describe the legal action or claim,
provide the date of such actions or claims, and provide the status or
outcome.

Id. at 664.
The Secretary responded by letter dated April 18, 1997, to the judge's order, but deferred
to Jackson's counsel on this request. Through counsel, Jackson filed a pleading in response to the
order. He stated that "[t]he answer to this question is 'No[,]"' but also went on to reference his
March 21, 1997, letter to Judge Feldman, in which the genesis of Jackson's suit against General
Motors was described. Resp. of Walter Jackson to Court's Order of March 24, 1997, at 2-3.
The operators replied to the submissions of the Secretary and Jackson. They did not
address the section of the judge's order regarding legal claims involving allegations of impairment.
Instead, they took the position that Jackson forfeited the right to further backpay upon the
withdrawal of his temporary reinstatement application. Reply to Complainants' Resp. to Order of
March 24, 1997, at 2-3.

In his decision on relief, the judge did not address this part of his earlier order. See 19
FMSHRC 875 (May 1997) (ALJ). He determined that the maximum amount of time for which
Jackson could be awarded backpay was February 18, 1995, the day after his discharge from
Motintain Top, until June 21, 1996, the termination date of the operators' haulage contract which
necessitated the employment of drivers such as Jackson. Id. at 878-79 & n.2. Focusing solely on
Jackson's failure to attempt to reopen his temporary reinstatement application, the judge held that
Jackson had failed to mitigate his damages, and consequently awarded him backpay only through
December 9, 1995, which was 60 days subsequent to Jackson's layoff from Cwnberland. Id. at
882-83.
The Commission granted petitions for review of the judge's decision filed by the Secretary
and Jackson. The Commission subsequently reversed the judge's failure-to-mitigate
1209

determination on the ground that the Mine Act does not require a discriminatee to seek temporary
reinstatement. 21FMSHRC265, 284 (Mar. 1999). Reviewing the evidence that had been
submitted to the judge, we further concluded that the only record evidence upon which a finding
of a failure to mitigate by Jackson could rest was his failure to seek reopening of his reinstatement
application. Id. Consequently we held that the only conclusion that the record before us could
support was that the operators did not meet their burden of establishing a failure to mitigate on
the part of Jackson, and we limited remand to a recalculation ofbackpay and interest owed
Jackson, consistent with our conclusion that it was not shown that Jackson failed to mitigate his
damages. Id. at 284-85.
After the case was returned to him, the judge held a telephone conference with the parties.
Unpublished Order dated April 23, 1999, at 2. Operators' counsel stated he had information he
wished to submit regarding Jackson's availability to work during the backpay period. Id. The
judge established a procedure for submission of the information and comment by the parties on it.
Id. at 2-3.
The operators submitted to the judge copies of the following documents: (1) the April
1995 Unemployment Compensation Report that resulted from Jackson's claim for unemployment
benefits following the end of his employment relationship with Mountain Top; (2) October 1992
answers to interrogatories Jackson provided in his product liability lawsuit; (3) excerpts from a
June 1994 deposition Jackson gave in that lawsuit; (4) an October 1995 vocational assessment
report of Jackson conducted in connection with the suit which discusses, among other things,
Jackson's college attendance between August and December 1995 and his ability to drive a truck;
and (5) the January 1996 jury verdict form from the suit, which contains both handwritten
amounts detailing the award to Jackson as well as the printed figure of $12,043.00, identified as
"[l]oss of wages and income sustained to date directly by reason of the injuries[.]" See Resp. to
Order Requesting Information Concerning Jackson's Availability for Work for the Period
February 18, 1995 through June 21, 1996 (hereinafter "Operator's Resp. to Judge's Order''), Exs.
I-V. 4 In response, both the Secretary and Jackson argued to the judge that the Commission's
statement that "the only conclusion that the record can support is that the operator did not show a

4

Copies of documents 1, 4, and 5 were attached to the briefs the operators had earlier
submitted to the Commission. (The operators filed two briefs. We cite herein to the brief they
filed in response to the Secretary's brief.) The operators stated that the documents supported
their arguments that Jackson was not discriminated against for engaging in a protected work
refusal, and, that by withdrawing his temporary reinstatement application, he forfeited any right to
backpaybeyond that point. Op. Br. at 13-16 & Addendums 1-2. We held that, because the three
documents were not part of the record before the judge, they could not properly be considered by
the Commission on review. 21 FMSHRC at 284-85 n.25 (citing Consolidation Coal Co., 18
FMSHRC 1541, 1544-45 (Sept. 1996)). Consequently, we granted the Secretary's motion to
strike the documents and all references thereto in the operators' briefs (see Unpublished Order
dated July 27, 1998, at 1-2), and did not consider them in reaching our decision on mitigation of
damages.
1210

failure to mitigate on the part of Jackson" was res judicata on that issue. S. Resp. to Judge's
Order at 2-3; Jackson Resp. to-Operator's Resp. to Judge's Order at 3. Jackson also submitted a
proposed order for relief predicated on his assertion that he was available for work at all times
during the backpay period. Proposed Order for Relief for Walter Jackson (June 4, 1999).
The judge then ordered the Secretary to provide information regarding the period in 1995
that Jackson was a college student and an employee of Cumberland. 21FMSHRC693, 698 (June
1999) (ALJ). The judge also ordered the Secretary to further explain her contention that Jackson
was available to work each weekday of the backpay period for 12 hours each day. Id. While both
the Secretary and Jackson moved the judge to reconsider his decision, the Secretary provided the
requested information and explanation, and Jackson submitted a I-page affidavit stating that he
sought employment while in college and would have stopped attending college if he had found a
job which required him to do so. S. Mot. for Recons. at 2-3; Jackson Resp. at 2-6 & Aff. of
Walter Jackson.
In his decision on remand on the backpay owed Jackson, the judge found that in the
record originally before him and the Commission, Jackson had not been forthcoming regarding his
college attendance, despite the judge's request that Jackson "disclose any 'periods when [he] was
not available for employment."' 21 FMSHRC at 917(quoting19 FMSHRC at 204). The judge
also found that information provided by Jackson in the vocational assessment contradicted the
statement of Jackson's private counsel in his letter of March 21, 1997, that the product liability
lawsuit was irrelevant to the issue of backpay before the judge at that time. Id. According to the
judge, the misleading information in that letter prevented the operators from pursuing relevant
evidence regarding the suit and contributed to the Commission's striking such evidence when the
operators attached it to their briefs. Id. The judge concluded by stating:
I am concerned about the apparent inconsistencies in
Jackson's position, i.e., asserting in his civil suit that his decision to

attend college was related to an eye impairment that interfered with
employment as a truck driver[,] while asserting in this proceeding
that he was looking for work as a truck driver, and that he would
have left college to obtain full[- ]time employment. Although I have
concluded that Jackson's full[-]time student status is relevant
evidence that should be considered, I am constrained by the
Commission's remand decision that "limited [me] to a recalculation
ofbackpay and interest owed Jackson consistent with [the
Commission's] conclusion that it was not shown that Jackson failed
to mitigate his damages." Absent further direction from the
Commission, I construe the Commission's decision as a finding that
Jackson was available for work. Accordingly, I shall award the net
backpay of$32,642.00, plus interest, sought by Jackson in this
matter.

1211

Id. at 918.
II.
Disposition
fu their motion for relief from the judge's decision, the operators contend that the
information provided by counsel for Jackson in March 199? was not truthful or forthcoming,
contributed to a delay by the operators in obtaining evidence from Jackson's civil suit, and
influenced the Commission to strike evidence concerning that civil suit in the belief that the issues
concerning Jackson's representations in that suit had not been raised before the judge. Op. Mot.
at 3. The operators submit .that their "newly discovered" evidence is probative on a number of
matters relevant to whether Jackson was available for full-time employment during the backpay
period, and request remand to the judge for further consideration of the issue. Id. at 3-4.

The Secretary opposes the relief requested by the operators, contending that the evidence
establishes that Jackson was available for work while he was in college. S. Opp'n at 1-3.
According to the Secretary, the judge should not have ordered the development of further
evidence he considered relevant to the mitigation issue, and his analysis of the evidence contains
errors. Id. at 3-5 & n.4. Jackson joins in the Secretary's opposition, and specifically denies that
he and his counsel submitted false information to the judge at any time. Jackson Resp. at 4-6.
Jackson contends that the operators had adequate opportunity prior to the judge's original
decision on damages to obtain all of the evidence they claim is "newly discovered." Id. at 4-5.
According to Jackson, nothing in the record supports the operator's argument that Jackson was
not available for full-time employment as a truck driver during the backpay period. Id. at 5.
As we discussed in our earlier decision, the Commission recognizes that a backpay award
"may be reduced in appropriate circumstances where an employee incurs a 'willful loss of
earnings."' 21 FMSHRC at 284 (quoting Secretary ofLabor on behalfofDunmire v. Northern
Coal Co., 4 FMSHRC 126, 144 (Feb. 1982)) (other citations omitted). Under the duty to
mitigate damages from discrimination, "a discriminatee is not entitled to back pay to the extent
that he fails to remain in the labor market, refuses to accept substantially equivalent employment,
fails diligently to search for alternative work, or voluntarily quits without good reason." NLRB v.
Madison Courier, Inc., 472 F.2d 1307, 1317 (D.C. Cir. 1972) (citations omitted) (emphasis in
original).5
The Commission's earlier statement that the only conclusion that could be drawn from the
record is that the operators did not establish that Jackson failed to mitigate his damages was based
5

"Because the Mine Act's provisions for remedying discrimination are modeled largely
upon the National Labor Relations Act, [the Commission] ha(s] sought guidance from settled
cases implementing that Act in fashioning the contours within which a judge may exercise his
discretion in awarding back pay." Metric Constructors, Inc., 6 FMSHRC 226, 231 (Feb. 1984),
ajf'd, 766 F.2d 469 (1 lth Cir. 1985).
1212

on the record as it was developed before the judge. See 21 FMSHRC at 285. We note that the
record at that time was then devoid of evidence on the issue of mitigation. Instead it contained
representations of the various counsel on Jackson's efforts at obtaining employment during the
backpay period, and what those efforts meant with respect to his entitlement to backpay.
Consequently, once we determined that the evidence the judge found dispositive on the issue of
mitigation -Jackson's failure to seek reopening of his temporary reinstatement application did not resolve the issue, we were left with no evidence to consider. As the burden of proving a
failure to mitigate is on the operator (21 FMSHRC at 285 (citing Metric Constructors, 6
FMSHRC at 233)), and there was nothing in the record to support the conclusion that Jackson
failed to mitigate his damages, we so held, and limited remand to a calculation of the backpay and
interest owed Jackson. Id.
According to the judge, however, the operators, in a teleconference that was held while
the judge was originally determining damages, raised the issue of whether Jackson had always
remained in the labor market during the backpay period. Moreover, according to the judge, the
representations of Jackson's counsel regarding the nature of Jackson's civil suit prevented the
operators from obtaining evidence from that suit relevant to the issue of whether Jackson could
have returned to work as a full-time truck driver. Both the Secretary and Jackson oppose
consideration of the documents, relying on our earlier refusal to consider some of the civil suit
documents when the operators attached them to their briefs. S. Opp'n at 2-3; Jackson Resp. at 3-·
4. They read too much into our decision, however, as we refused to consider the documents only
because they had not been before the judge when he made his original decision. See 21 FMSHRC
at 284-85 n.25. The Secretary is therefore mistaken in suggesting that the operators should have
requested the Commission to reconsider its decision to strike the documents before submitting
them to the judge. See S. Opp'n at 5. Because the documents had yet to be admitted into the
record by the judge, the Commission could not have considered them, regardless of their
relevance.
While the proceedings on remand in which the judge requested, received, and reviewed
the documents may have exceeded the literal terms of our remand order, we cannot deny the
relevancy of the information contained in the documents to the questions of whether and to what
extent Jackson was available to work during the backpay period. There is also evidence that
supports the judge's conclusion that the information provided by Jackson's counsel was not as
accurate as he had a right to expect. The judge specifically asked whether Jackson has "been a
party in any legal action or claim involving allegations ofphysical or mental impairment." 19
FMSHRC at 664 (emphasis added). The documents from Jackson's civil suit show that in that
case he sought compensation for lost wages and impairment of his earning.capacity,6 and

6

In his October 1992 answer to an interrogatory regarding the claim in paragraph 10 of
his product liability complaint that he had suffered impairment of his power to earn money due to
the accident, Jackson stated that he had suffered permanent loss of vision in his right eye, was
unable to pass any type of pre-employment physical examination due to the damage to his vision,
and thus was prohibited from any type of work as a truck driver or other work requiring visual

1213

eventually was compensated for, among other things, "[l]oss of wages and income sustained to
date directly by reason of the injuries[.]" Resp. to Judge's Order, Ex. V. Jackson's response
through counsel that "[t]he answer to . .. question [No. 5] is 'No"' was thus not accurate. See
Resp. of Walter Jackson to Court's Order of March 24, 1997, at 2-3. In light of this discrepancy,
as well as the earlier statement of Jackson's counsel that the civil suit was irrelevant to Jackson's
claim for backpay, we will not find, as the Secretary and Jackson request (S. Opp 'n at 6-7;
Jackson Resp. at 4-6), that the operators' failure to obtain the probative documents from
Jackson's civil suit while the proceeding was originally before the judge was due to the operators'
lack of diligence.
The Secretary and Jackson are correct that some of the information contained in the civil
suit documents is contradicted by evidence elsewhere in the record. See S. Opp'n at 4-5 n.4;
Jackson Resp. at 5. However, it is up to the judge to reconcile the conflicting evidence.
Consequently, we direct him to do so on remand and resolve the question of whether and to what
extent Jackson was available for employment during the backpayperiod.
In addition, Jackson's status as a college student does not necessarily mean that he must
be found to have failed to mitigate his damages during the time he was enrolled in college. The
question is whether Jackson sought full-time employment during that time, and would have
accepted employment and quit college had a job become available. The burden of proof is on the
operators to show that he either did not seek such employment or would riot have quit college if it
had become available. See Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1274 (4th Cir.
1985). On remand, the judge will have the opportunity to hear Jackson's testimony on this and
other issues relevant to the mitigation question. 7

acuity. Resp. to Judge's Order, Ex. IV at 1, 3. In his June 1994 deposition he again stated that
he believed he would be unable to pass a pre-employment physical (id., Ex. II at 48), and,
according to the October 1995 vocational assessment report, Jackson claimed to have failed a
physical with Manalapan Mining Company for a driving position. Id., Ex. I at 2-3.
7

The judge never evaluated the credibility of the I-page affidavit Jackson submitted
regarding his college attendance and his search for employment. Given the conflicting evidence,
we believe a hearing on the record is necessary for the judge to best decide the mitigation
question.
1214

ill.
Conclusion
For the foregoing reasons, we vacate the judge's damages award and remand this case for
further proceedings consistent with this opinion.

~ c_\?:J'-""--.

\ ~~~~~~~~~~~~~~~~

jJames C. Riley, Commissioner

1215

Commissioner Marks, dissenting:
Because I conclude that the judge's damages award in favor of truck driver Walter
Jackson should be affirmed, I dissent.
The operators bear the burden of proving a failure to mitigate damages in a discrimination
case under the Mine Act. See Metric Constructors, Inc., 6 FMSHRC 226, 233 (Feb. 1984), ajf'd,
766 F.2d 469 (11th Cir. 1985). In January 1997, the judge determined that the operators'
discharge of Jackson on February 17, 1995, violated Mine Act section 105(c)(l) and ordered the
parties to confer on the issue of appropriate relief. 19 FMSHRC 166, 181-86 (Jan. 1997) (ALJ).
In May 1997, the judge issued his supplemental decision and final order awarding back pay relief
to Jackson. 19 FMSHRC 875, 883 (May 1997) (ALJ). Prior to this damages decision, Jackson,
through counsel's letter of March 21, 1997, informed the operator and the judge of the lawsuit
that Jackson filed in 1991 against General Motors. The operators with any measure of due
diligence could have sought, prior to the May 1997 damages decision, all the information that it
now claims is pertinent to the mitigation issue. 1 I refuse to let this case drag on and penalize
Jackson, the discriminatee, when the operators failed in their mitigation burden more than two
years ago.
This case has been pending before the Commission and its judges for nearly five years.
The operators' recent maneuvering has succeeded in prolonging its responsibility to remedy its
unlawful discrimination against Jackson. In the interest ofjustice and-judicial economy, I would
affirm the judge's damages award in favor of Jackson.

Marc Lincoln Marks, Commissioner

1

For example, at the time that counsel for Mountain Top was first made aware of
Jackson's eye injury in March 1997, he could have easily discovered the October 27, 1995, letter
from the vocational rehabilitation consultant that was prepared in the course of the tort litigation,
which stated: "Mr. Jackson is currently a full-time student at Union College ...." Resp. to
Judge's Order, Ex. I at 2.
1216

Distribution

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Stephen A. Sanders, Esq.
Appalachian Research & Defense Fund
Of Kentucky, Inc.
28 North Front Street
Prestonsburg, KY 41653
Edward M. Dooley, Esq.
512 Richmond Circle
Fairhope, AL 36532
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1217

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C. 20006

November 30, 1999
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos.

v.

SE 99-101-RM
SE 99-102-RM
SE 99-103-RM
SE 99-104-RM
SE 99-105-RM
SE 99-106-RM

NOLICHUCKEY SAND CO., INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORDER
BY: Riley, Verheggen, and Beatty, Commissioners
Before us is a "Motion to Stay Abatement" filed by Nolichuckey Sand Company, Inc.,
("Nolichuckey") on September 22, 1999 in the above-captioned proceedings. Mot. at 1. The
motion recites that on January 28, 1999, MSHA issued Nolichuckey six citations alleging
violations of 30 C.F.R. § 56.l4109(a). Id.; see 21FMSHRC681, 682 (June 1999) (ALJ). The
Department of Labor's Mine Safety and Health Administration ("MSHA") agreed to extend the
time period for abatement of the citations at issue until the judge rendered his decision. Mot. at 1.
Administrative Law Judge Avram Weisberger upheld the citations on June 30. Id. MSHA further
extended until October 1 the date by which the operator was to abate the cited conditions. Id. at
1-2. In support of its motion, Nolichuckey states that review of the judge's determination in this
matter is pending before the Commission, that briefing in this matter will not be complete by the
date by which it must abate the cited conditions, that the alleged violation is non-significant and
substantial, that MSHA's enforcement position prior to these citations' issuance was that the
operator was in compliance with the safety standard, and that continuation of the status quo
would not place miners at risk of bodily injury. Mot. at 2.
The Secretary of Labor opposes Nolichuckey's motion. The Secretary submits that
section 105(b)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(b)(2)
(1994) ("Mine Act" or "Act"), "prohibits the Commission from granting temporary relief ... in
the case of a citation issued under subsection (a) or (f) of Section 104 [of the Act]." S. Opp'n at
2 (citing 30 U.S.C. § 815(b)(2)). The Secretary's opposition also cites Energy Fuels Corp., 1
FMSHRC 299, 306 (May 1979), which states that the Mine Act "does not permit the Commission
to stay abatement requirements of a citation during litigation." Id.
1218

The citations at issue in the instant matter were issued under section 104(a) of the Mine
Act. See 21 FMSHRC at 682. In effect, Nolichuckey' s motion requests temporary relief from
abatement. The text of section 105(b)(2)(C) provides in part that "[n )o temporary relief shall be
granted in the case of a citation issued under subsection (a) or (f) of section 104." 30 U.S.C. §
815(b)(2)(C); see also 29 C.F.R. § 2700.46(a) (providing that the Commission may not grant
temporary relief with respect to citations issued under section 104(a) of the Mine Act).
In Pennsylvania Electric Co., 11 FMSHRC 793 (May 1989), the operator requested that
the Commission enjoin MSHA enforcing citations pending a Commission decision. Id. We noted
that section 105(b)(2) "specifically states that '[n]o temporary relief shall be granted in the case of
a citation issued under subsection (a) ... of section [104)' of the Act." Id. We denied the
operator's request, and held that "the two citations in question were issued under section 104(a)
of the Act. Thus, by the express terms of the Act, temporary relief may not be granted in this
case." Id. at 793-94. Similarly, in Utah Power & Light Co., Mining Div., 11FMSHRC953
(June 1989), we held that "the citation from which temporary relief is sought by [the operator] is
a section 104(a) citation ... and as such is not within the purview of section 105(b)(2) relief.
Accordingly, [the operator's] Application for Temporary Relief is denied." Id. at 958; see also
Energy Fuels, Corp., 1FMSHRC299, 306(May1979) ("Furthermore, the Commission cannot,
unless a final order favorable to Energy Fuels is issued, relieve Energy Fuels of its responsibilities
to continue to maintain the cited condition in compliance. The 1977 Act does not permit the
Commission to stay abatement requirements of a citation during litigation.") (citing sections
104(b) and (h), 105(b)(l)(A) and (b)(2) of the Act).
Contrary to Nolichuckey' s assertion, section 105(d) does not require a different result.
Section 105(d) provides that an operator may contest certain issues before a Commission judge,
including the issuance or modification of an order issued under section 104 or the reasonableness
of the length of abatement time fixed in a citation or modification thereof issued under section
104. See 30 U.S.C. § 815(d). However, Nolichuckey currently requests what amounts to
temporary relief from the abatement requirement, not a review of the reasonableness of the time
set for abatement. Mot. to Stay Abatement at 1. We previously have applied section 105(b)(2) to
operator requests to stay abatement requirements related to section 104(a) citations. See
Pennsylvania Electric Co., 11 FMSHRC at 793; Utah Power & Ligh_t, 11 FMSHRC at 953.
Moreover, Nolichuckey failed to contest the reasonableness of abatement time, either in its
contest or in its Petition for Discretionary Review.
The plain language of section 105(b)(2) mandates that we deny the requested relief.
However, we find several circumstances presented by this case troubling. It appears that the
Secretary agreed to extend the abatement period for the citations at issue here during the
pendency of this litigation. This made sense given that MSHA's position before the citations were
issued was that the operator was in compliance with the relevant safety standards. 21
FMSHRC at 682 n.2. Indeed, MHSA extended the abatement period until October 1, 1999 for a condition cited in January 1999.
1219

MSHA has apparently declined, however, to extend the abatement period any further,
notwithstanding the fact that the agency apparently decided to re-evaluate its position regarding
the application of30 C.F.R. § 56.14109(a) to the guards used byNolichuckey. Since MSHA is
advancing a new position regarding a specific condition that was previously deemed in
compliance, we believe, in this case, it would be appropriate and reasonable for MSHA to opt not
to press for abatement.
The Commission is bound, however, by the terms of the Mine Act, and the Act does not
allow us to intervene here and order the Secretary to continue her forbearance. Instead, if
Nolichuckey wants further vindication, it must risk defying MSHA's abatement period so that it
might obtain a closure order and institute further proceedings before the Commission. The
Secretary's insistence at this particular time to require abatement makes little sense - her brief
certainly sheds no light on why abatement is suddenly needed now. Absent any explanation, we
find her position unfortunate and merely a potential cause of additional litigation. 1
In sum, and in accordance with Commission case law, we hold that the provision of
temporary reinstatement procedures in section 105(b)(2) of the Mine Act does not include
temporary relief from section 104(a) citations.

1

While our concurring colleagues characterize our concerns as "gratuitous" and
"dabbl[ing] in the affairs" of MSHA (slip op. at 5), we note that this Commission has not been
reluctant in the past to scrutinize the Secretary's enforcement activities. See, e.g., Minerals
Exploration Co., 8 FMSHRC 477, 478 (Apr. 1986) ("we express our strong disapproval of and,
as appropriate, serve warning with respect to some of the activities of certain MSHA officials and
the Secretary's trial counsel"). In fact, this scrutiny was recently reemphasized by the
Commission in Black Diamond Constr., Inc., 21 FMSHRC _,No. EAJ 98-1 (Nov. 3, 1999). In
Black Diamond, a Commission majority expressed disapproval of the Secretary's position in an
EAJA case by stating that "it is hardly reasonable for a litigant to be forced to bear the
considerable cost of defending itself over many months . . . while an enforcement agency ignores
essential information brought to its attention at the outset." Slip op. at 11.
In light of the Commission's previous willingness to scrutinize the Secretary's
enforcement activities, it is unfair to characterize our position here as "gratuitous" and "dabbl[ing]
in the affairs"of MSHA. It is important that all members of the Commission recognize that
Congress established this impartial adjudicative body to, among other things, "review[] the
enforcement activities of the Secretary" and "provide guidance to [her] in enforcing the [Mine
Act]." Hearing on the Nomination of Members of the Federal Mine Safety and Health Review
Commission before the Senate Comm. on Human Resources, 95th Cong., 1 (1978). We are not
prepared to join our concurring colleagues in their willingness to tum a blind eye to this important
statutory responsibility imposed by the Mine Act.

1220

Accordingly, upon consideration ofNolichuckey's ~otion, and in accordance with the
p_lain language of section 105(b)(2) of the Act and Commission Procedural Rule 46(a), we deny
the operator' s motion.

c.
Theodore F. Verheggen, Co

-::?

·x i ;;;: c o ?
~.o~

Robert H. Beatty, Jr., Commi

1221

Chairman Jordan and Commissioner Marks, concurring:
We agree with our colleagues that the plain language of the Mine Act clearly states that an
operator may not be granted temporary relief in a case arising from a citation issued under section
104(a) of the Act. We are therefore in accord with the majority's denial ofNolichuckey's motion
to stay abatement, as the operator is requesting a remedy explicitly precluded by the statute.
We write separately, however, because we wish to disassociate ourselves from the
majority's gratuitous criticism of the Secretary's decision to require abatement as of October I.
The judge in this case found six violations qf the regul~tion mandating stop cords or ·railings on
conveyor belts. The Secretary, who is charged with enfo!cing the Mine Act, has determined that
any additional delay in abating these violations is not warranted. We are most reluctant to .
second-guess that decision and announce that this regulation - designed to ensure the safety of
miners working near the belt - should not now be enforced.
When the majority interpreted - correctly- the clear language of the Mine Act to
mandate the denial of temporary relief to Nolichuckey, its task was complete. To then opine on
the propriety of the Secretary's enforcement action at this stage of the proceedings appears to be
little more than the atteµipt of an adjudicatory agency to dabble in the affairs of its prosecutorial
counterpart. We do not know why the Secretary agreed to the previous extension of the
abatement period, nor have we been provided with any information as t~ what prompted her
decision to impose abatement as of October I. On the basis of the pleadings filed in this
proceeding, we are unwilling to draw conclusions about the implications for miner safety if the
abatement period were extended beyond that date. 1

1

Commissioner Marks also notes:

In light of the fact that Nolichuckey is represented by competent and experienced
counsel, I find that my colleagues' suggestion to Nolichuckey on how to proceed in order to
obtain "further vindication" against the Secretary is not only superfluous to the holding in this
case but it is inappropriate, as the Commission is not in the business of providing legal advice on
how to proceed against the Secretary.
1222

Distribution
Adele L. Abrams, Esq.
Mark N. Savit, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1223

1224

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

November 3, 1999
ANTHONY WILLIAMS,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEVA 99-71-D
MSHA Case No. HOPE-CD-99-03

v.
OASIS CONTRACTING, INC.,
Respondent

DECISION
Appearances: Andrew J. Katz, Esq., The Katz Working Families' Law Firm, L.C., Charleston,
West Virginia, for Complainant;
Ricklin Brown, Esq., Bowles Rice McDavid Graff & Love, PLLC, Charleston,
West Virginia, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination filed by Anthony E. Williams
against Oasis Contracting, Inc., under section 105(c) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(c). A hearing was held in Charleston, West Virginia. For the reasons
set forth below, I find that the Complainant was not discharged by Oasis because he engaged in
activities protected under the Act.
Williams filed a discrimination complaint with the Secretary of Labor's Mine Safety and
Health Administration (MSHA), pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2),
on December 8, 1998. 1 On March 4, 1999, MSHA informed him that, on the basis of its
investigation, it had determined that "a violation of Section 105(c) of the Act has not occurred."
Williams then instituted this proceeding with the Commission on April 2, 1999, under section
105(c)(3), 30 U.S.C. § 815(c)(3).2
1

Section 105(c)(2) provides, in pertinent part, that: "Any miner ... who believes that he
has been discharged, interfered with, or otherwise discriminated against by any person in violation
of this subsection may, within 60 days after such violation occurs, file a complaint with the
Secretary alleging such discrimination."
2

Section 10S(c)(3) provides, in pertinent part, that: "If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission ...."
1225

Background

Oasis Contracting, Inc., provides temporary contract labor for various coal companies in
the southern coal fields of West Virginia. Anthony Williams began working for Oasis on
September 12, 1997. Since he had never worked as a miner, Oasis provided him with new miner
training. He was then assigned to work as a general laborer at the Upper Big Branch
underground coal mine operated by Performance Coal Company.
Williams worked both above ground and underground for Performance, operating scoops
and "supply motors," taking care of belt lines and working as a supply man, "inloader" operator
and welder. All of this work was considered "outby work," that is, it was not directly involved
.with the production of coal at the face. On August 26, 1998, Williams received his miner's
certification.
Williams was laid-off by Performance on September 16, 1998. He called Philip Farley,
owner of Oasis, to find out why he had been laid-off. Farley checked into the matter and
informed Williams that Performance considered his work to be unsatisfactory. Farley also advised
Williams that ifhe had an opening at another coal company, for which Williams was qualified, he
would give him a second chance.
On December 7, 1998, the Complainant went to Oasis' office to find out if there was any
work available for him. After being advised that there was none, he left the office only to return a
few minutes later to request his "bonus." The "bonus" was really a yearly clothing allowance
provided for Oasis employees working as miners. On being informed that he was not entitled to
the allowance since he was not working, he began talking in a loud voice and using profanities to
the woman in the office concerning the lack of work and allowance. He had to be asked to leave
by a male employee. As a result of this incident, Oasis terminated his employment.
Williams filed a discrimination complaint with MSHA the next day. In his complaint,
Williams alleged:
I believe I was laid off after Oasis management was
pressured by Performance Coal Company. The coal company was
afraid that I had knowledge that would get them in trouble. I had
received a telephone call from the Johnson family lawyer informing
me that I would be subpoenaed to testify in court about a fatal
accident that occurred at the Upper Big Branch mine.
(Comp. Ex. 3.) At the hearing, Williams also implied that he was laid-off from Performance
because he complained about having to work alone as an inexperienced miner.

1226

Findings of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination under Section 105(c) of the Act,
a complaining miner bears the burden of establishing ( 1) that he engaged in protected activity and
(2) that the adverse action complained of was motivated in any part by that activity. Secretary on
behalfof Pasula v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
on behalfof Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on
behalfofJenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Secretary on
behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), rev'd on other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator may rebut
the prima facie case by showing either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800.
I find that the Complainant has demonstrated that he engaged in protected activity, but
that he has not established that he was discriminated against as a result of that activity. I also find
that the Respondent has shown that the Complainant was terminated for reasons other than his
having engaged in protected activity.
Protected Activity

Williams alleges that the protected activity that he engaged in was being a potential
witness in a wrongful death action being brought by the family of Danny Johnson. 3 This claim is
supported only by the Complainant's uncorroborated testimony. However, giving him the benefit
of the doubt, I find that he did engage in protected activity.
The Respondent questions whether being a potential witness in a civil case can be
protected activity. I find that in this case it was.
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), states that a miner has engaged in
protected activity when he has acted as follows: (1) he "has filed or made a complaint under or
related to this Act, including a complaint ... of an alleged danger or safety or health violation;"
(2) he "is the subject of medical evaluations and potential transfer under a standard published
pursuant to section 101 ;" (3) he "has instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in any such proceeding;" or, (4) he has
exercised "on behalf of himself or others ... any statutory right afforded by this Act." (Emphasis
added.)

3

It was never stated at the hearing against whom the wrongful death action was being
brought; I am assuming it was Performance Coal Company.
1227

While there does not appear to be any law on this point, I find that a wrongful death case
based on an alleged safety violation at a mine is a proceeding related to the Act. Thus, it follows
that a person about to testify in such a proceeding is engaging in protected activity.

Motivation for Dischar~e
The Complainant has failed to establish that he was discharged because he was a potential
witness in the wrongful death case. To prevail in this matter, Williams must show not only that he
was laid-off by Performance because of his protected activity, but also that he was terminated by
Oasis for the same reasons. 4 While he has presented evidence that he engaged in protected
activity and that he was laid-off and terminated, respectively, he has presented no evidence to
connect the protected activity with the adverse action.
As the Commission has frequently acknowledged, it is very difficult to establish "a
motivational nexus between protected activity and the adverse action that is the subject of the
complaint." Secretary on behalfof Clay Baier v. Durango Gravel, 21 FMSHRC 953, 957
(September 1999). That is because "(d]irect evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect. . . . 'Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence."' Chacon, 3 FMSHRC
at 2510 (quoting NLRB v. Melrose Processing Co., 351F.2d693, 698 (8th Cir. 1965). The
Commission has "listed some of the circumstantial indicia of discriminatory intent, including (1)
knowledge of the protected activity; (2) hostility or animus towards the protected activity; and (3)
coincidence in time between the protected activity and the adverse action." Baier, 21 FMSHRC
at 957 (citing Chacon, 3 FMSHRC at 2510).
As alleged in his complaint, Williams testified that he was called sometime in June or July
by an investigator working for the Johnson family and told that he could be subpoenaed to testify
at a trial. He claimed, however, that the only mine people he told about the call were "[j]ust coworkers." (Tr. 179.) Despite this claim, it is apparent that Performance was aware that its
employees, including Williams, were being questioned by someone representing the Johnson's. 5
The fact that Performance knew that Williams had been contacted, however, does not
mean that they knew that Williams "had knowledge that would get them in trouble." He did not
show that the company knew that he was going to be a witness at the trial. In fact, there is no

Since Williams was laid off on September 16, 1998, and did not file his complaint until
December 8, 1998, had he filed his complaint against Performance it would not have been timely.
30 U.S.C. § 815(c)(2).
4

5

Gary Frampton, the Performance superintendent, testified that Williams came to him and
told him that "somebody from Mrs Johnson's law firm had tried to contact" him and Williams
wanted to know if he should talk to the person. (Tr. 218.)
1228

way the company could have known this since Williams himself did not know it. At the time of
this hearing, there had been no trial in the Johnson case and Williams had not even been deposed,
much less subpoenaed as a witness for the trial. Indeed, there was no evidence offered at the
hearing that the civil case had even been filed.
Further, the Complainant did not show that Performance believed that he would testify
adversely to its interests. Williams gave a statement to the MSHA and state investigato~s when
the Johnson accident was being investigated. At that time, he told the investigators that the
overcast structure which later collapsed "looked sound to me when I left that night." (Resp. Ex.
4 at 2.) In addition, Williams testified that he refused to talk to the investigator, so even the
Johnson family did not know what his testimony would be. Consequently, if anyone at
Performance considered it at all, the assumption would have been that he would support their
case, not "get them in trouble."
The Complainant testified that he observed Danny Jarrell weld a "rusty screwdriver" into
the overcast which later collapsed causing the death of Johnson. (Tr. 91-92.) The implication in
this testimony was that this was the adverse information that Performance did not want Williams
to reveal at a trial. However, as noted, he did not mention this to the state and federal
investigators, instead telling them that everything on the overcast looked sound. 6
Assuming that he gave a false statement during the investigation because, as he said, he
did not want to lose his job, this does not explain why he did not mention the screwdriver in his
discrimination complaint. By this time he had lost his job. Yet he made no mention of what he
allegedly knew either in his formal complaint, (Comp. Ex. 1), or the detailed statement he made to
MSHA the next day in support of his complaint, (Resp. Ex. 1).
Thus, it is apparent that not only did Performance not know that Williams was going to be
a witness adverse to their interests, but that no one but Williams knew it until the time of this
hearing. Accordingly, I conclude that the Complainant has failed to establish that Performance
had knowledge of his protected activity.
Williams has also failed to establish that Performance had evidenced hostility toward his
alleged protected activity or that there was any coincidence in time between the alleged protected
activity and his being laid-off. The telephone call from the Johnson family investigator took place
in June or July. Williams was not laid-off until September 16, 1998. Yet he has presented

6

Both the West Virginia Office of Miners' Health, Safety and Training investigation
report and the MSHA investigation report concluded that out of the 18 "H" beams making up the
ceiling of the overcast, only one had been welded and that this weld was insufficient to support
the weight placed on the ceiling of the overcast. {Resp. Exs. 5 and 6.) The reports also
concluded that "[i]nferior and insufficient bracing was used to support the sidewalls and ceiling."
(Resp. Ex. 6 at 6.) Neither report mentions a "rusty screwdriver" and neither the state nor the
federal agency issued any citations or orders to Performance as a result of the accident.
1229

nothing to indicate that the telephone call was ever mentioned by anyone from Performance, much
less that they displayed animus toward anyone being a witness in the case or him in particular.
Nor has he explained why they let him continue to work for at least two and one-half more
months before laying him off, if laying him off was motivated by his being a witness against them. 7
Finally, not only has Williams not demonstrated that he was laid-off by Performance
because of the protected activity he engaged in, but even more importantly to a decision in this
case, he has failed to show that Oasis was aware of the protected activity at the time he was
terminated. Both Philip Farley, the owner of Oasis, and Stephanie Buchanan, the Oasis employee
who received the telephone call from Performance asking that Williams be laid-off, denied
knowing anything about the protected activity in which Williams claimed he engaged. Frampton
denied telling Oasis that the Complainant had engaged in protected activity. Indeed, if
Performance were having the Complainant laid-off as a means of discriminating against him for his
protected activity, what better way to accomplish it and cover-up the fact than not tell Oasis the
truth.
The Complainant has presented no evidence, other than his own assertions, to establish
that Oasis terminated him for the protected activity he allegedly engaged in at Performance.
There is nothing in the record from which corroboration of his assertions can be inferred. The
circumstantial indicia of intent set out in Chacon, which were not present against Performance,
are even farther removed concerning Oasis. Accordingly, I conclude that Williams was not
terminated by Oasis because of any protected activity he may have engaged in while working for
Performance.

Adverse Action Not Motivated by Protected Activity
Although the Complainant has not shown that he was discriminated against by
Performance or Oasis because of protected activity that he engaged in, I find that even ifhe had,
the companies have demonstrated that the adverse action taken against Williams was for reasons
other than his engaging in protected activity. Frampton testified that Williams was laid-off
because his work was not satisfactory. He stated that he had talked with the Complainant several
months before about the layoff after receiving complaints from several of Williams' supervisors.
Williams denied that he had ever been told his work was satisfactory. However, Farley confirmed
that Frampton had called him about Williams' work performance. Farley and Buchanan both
testified that when Williams was laid off they were told by Frampton that it was because of
unsatisfactory work.

7

While not exactly necessary to his case, Williams did not show how laying him off would
have benefitted the company. If they suspected that he was a hostile witness, certainly laying him
off would make him more hostile and more likely to testify against them. Therefore, it seems
unlikely that this would have motivated Performance to lay him off.
1230

Moreover, even if Performance's reason for laying Williams off was a pretext for laying
him off because of his protected activity, as discussed above, there is nothing to indicate that
Oasis was aware of the pretext. Indeed, Oasis told Williams that if work was available with
another company, which he could perform, they would give it to him. It was not until he became
abusive at the Oasis office that he was terminated.

The Complaint of Workin~ Alone
For the first time, at the hearing, the Complainant alleged that he was laid off by
Performance and terminated by Oasis because he complained about working alone as a "red hat."8
He testified that he complained about this as follows: "I started on that job on a Monday and then
Thursday night I finally, you know, met Danny [Jarrell] outside, and I told him that I shouldn't be
working by myself as a red hat and besides I need help to get this caught up, I can't
keep up." (Tr. 73.)
Williams was apparently under the impression that working alone as a "red hat" violated
the Secretary's safety regulations. However, he has not cited, and I have not been able to find,
any prohibition in the regulations against new miners being assigned to work alone. There are
prohibitions against any miner, not just a "red hat," working alone where hazardous conditions
exist at surface metal and non-metal mines, the surfaces of underground metal and non-metal
mines and surface coal mines, 30 C.F .R. § § 56.18020, 57 .18020 and 77 .1700, and in
underground metal and non-metal mines, 30 C.F.R. § 57.18025.9 Curiously, there does not
appear to be a similar requirement for underground coal mines.
It is apparent that the mere fact of working alone and being a "red hat" is not a safety
violation. And Williams has failed to allege that he was working in hazardous conditions that
could have endangered his safety or that he could not be heard or seen by others, which could
have made it a violation. In addition, it is not clear from his testimony whether Williams was
complaining about working alone because it was a safety violation or because he could not do the
job alone.

8

Until a new miner has been certified, he is distinguished in the mine as a new miner by
wearing a red hard hat. See 30 C.F.R. § 75.1720-1.
9

30 C.F .R. § § 56.18020, 57 .18020 and 77 .1700 prohibit a miner being "assigned, or
allowed, or ... required to perform work alone in any area where hazardous conditions exist that
would endanger his safety unless he can communicate with others, can be heard, or can be seen."
30 C.F.R. § 57.18025 prohibits any miner being "assigned, or allowed, or ... required to perform
work alone in any area where hazardous conditions exist that would endanger his safety unless his
cries for help can be heard or he can be seen."
1231

Accordingly, I conclude that if Williams made such a complaint, and in this regard I find it
significant that he did not raise it in his discrimination complaint with MSHA, he was not
engaging in protected activity when he did so. 1° Furthermore, even if this was engaging in
protected activity, it fails for all of the reasons discussed above with regard to his witness claim:
Order

Accordingly, since the Complainant has failed to show that he was laid-off and then
terminated for engaging in activity protected under the Act, it is ORDERED that the complaint
of Anthony Williams against Oasis Contracting, Inc., under section 105(c) of the Act, is
DISMISSED.

~T~~

Administrative Law Judge

Distribution:
Andrew J. Katz, Esq., The Katz Working Families' Law Firm, L.C., 1324 Virginia Street East,
Charleston, WV 25301 (Certified Mail)
Ricklin Brown, Esq., Bowles Rice McDavid Graff & Love, PLLC, 600 Quarrier Street,
P.O. Box 1386, Charleston, WV 25325-1386 (Certified Mail)

/nj

10

By not raising this issue until the hearing, the Respondent was not given an opportunity
to find or prepare evidence rebutting the claim.
1232

FEDERAL MINE.SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6rn FLOOR
WASHINGTON, D. C. 20006-3868
November 3, 1999 ·

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 99-128
A. C. No. 44-06872-03509 A

v.
DONALD J. RIFFE, EMPLOYED
BY KNOX CREEK COAL
CORPORATION,
Respondent

Kennedy#2

ORDER OF DISMISSAL
Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed by the Secretary of Labor
under section l lO(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(a).
The Solicitor has filed a motion for leave to file her petition out of time and the operator
has filed a response in opposition.
On July 21, 1999, the Secretary issued a notice of proposed civil penalty assessment. The
respondent timely contested this assessment by filing a request for hearing within 30 days. The
request was received on August 10, 1999. 29 C.F.R. § 2700.26. The Secretary had 45 days after
receipt of the contest to file the penalty petition. 29 C.F.R. § 2700.28. Therefore, the petition
was due on September 24, 1999, but the Solicitor did not file until October 20, 1999. 29 C.F.R. §
2700.5(d). It was, therefore, 26 days late.
The Commission has permitted late filing of penalty petitions where the Secretary
demonstrates adequate cause for the delay and where the respondent fails to show prejudice from the
delay. Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981). The Secretary
must establish adequate cause for the delay in filing, apart from any consideration of whether the
operator was prejudiced by the delay. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct.
1989). A determination of adequate cause is based upon the reasons offered and the extent of the
delay.
1233

In this case the sole basis for the Solicitor's request to permit late filing is her own
misunderstanding of procedures followed in her office. She.states that she was unaware that she
was required to draft a new petition in a 110 (c) case, because in 110(a) cases a petition is
automatically generated upon assignment. This Solicitor has handled many mine safety cases. I
find that her professed lack of understanding of such basic and simple procedures does not
constitute adequate cause. This type of excuse could be made in virtually any case where the
Solicitor is late.
In light of the foregoing, it is ORDERED that this case is DISMISSED.

:

_______.\.....,...,~
Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)

Yoora Kim, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Room 516, Arlington, VA 22203
David J. Hardy, Esq., Maris E. McCambley, Esq., Jackson & Kelly, PLLC, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322
/gl

1234

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 16, 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 98-39
A.C. No. 46-07711-03660

v.
Mine No. 1
EAGLE ENERGY INCORPORATED,
Respondent

DECISION
Appearances:

Yoora Kim, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Petitioner; 1
David J. Hardy, Esq., Julia K. Shreve, Esq., Jackson & Kelly,
Charleston, West Virginia, for the Respondents.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalty filed by the Secretary
of Labor (the Secretary) against the respondent, Eagle Energy Incorporated (Eagle Energy),
pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Act),
30 U.S.C. § 820(a).2 The petition seeks to impose a total civil penalty of$3,300.00 for three
alleged violations of the Secretary's mandatory safety regulations.
This matter was heard on April 13 through April 16, 1999, and June 22 through June 23,
1999, in Charleston, West Virginia. Eagle Energy is a large mine operator that is subject to the
jurisdiction of the Act.
After approximately two days of testimony, the parties agreed to settle Citation
No. 7158529 that concerned an alleged non-significant and substantial (non-S&S) violation
of the mandatory safety standard in section 50.10, 30 C.F.R. § 50.1 O~ that requires an operator
to immediately notify the Mine Safety and Health Administration (MSHA) in the event of an
accidental ignition. Although the accidental ignitfon occurred at 10:00 a.m. on August 23, 1997,

1

Yoora Kim is no longer employed with the U.S. Department of Labor's Office of the

Solicitor.
2

Docket Nos. WEVA 98-45-R, WEVA 98-69 and WEVA 98-81 were severed from
Docket No. WEVA 98-39 and stayed by Order dated July 8, 1999.
1235

Eagle Energy did not notify MSHA until later that afternoon at approximately 4:45 p.m. The
accidental ignition occurred while a cutting torch was being used to repair a section of track rail.
Although a very brief flame emanating from a crack in the mine floor was observed by only one of
several miners working on the track repair, several miners saw smoke coming from the vicinity of
the crack after the flame presumably had extinguished. Eagle Energy did not report the incident
immediately because it believed the ignition was caused by excess acetylene from the cutting torch
rather than methane bleeding from the crack.
After hearing a substantial amount of testimony on Citation No. 715 8529, the parties
had a settlement conference. As a result of the conference, the parties agreed to settle Citation
No. 7158529. The parties' agreement, that was approved on the record, resulted in reducing the
initial $300.00 civil penalty proposed by the Secretary to a $50.00 civil penalty. The reduction in
penalty was based on reducing the degree of negligence attributable to Eagle Energy from high to
low.
At the hearing, the parties also agreed to settle Citation No. 7163240 that concerned an
alleged non-S&S safeguard violation of section 75.1403, 30 C.F.R. § 75.1403, on September 2,
1997, because of water that had accumulated in depths of approximately two to five inches above
the ball of the track between crosscuts 69 and 70 on the 10 Left track entry. The parties agreed
to reduce the civil penalty from $500.00 to $300.00. The reduction in civil penalty was based on
reducing the degree of Eagle Energy's negligence from high to moderate.
The remaining matter for disposition is 104(d)(l) Citation No. 7163242 that cited an
alleged September 2, 1997, S&S violation of the mandatory safety standard in section
75.380(d)(l), 30 C.F.R. 75.380(d)(l), for several areas of extensive water accumulations in the
10 Left intake escapeway. Section 75.380(d)(l) requires each escapeway to be "[m]aintained in a
safe condition to always assure passage of anyone, including disabled persons." The citation
noted, "this condition was reported [in the escapeway book] on August 15, August 22 and
August 29, 1997."

I. Statement of the Case
For the reasons discussed herein, the fact of the violation in 104(d)(l) Citation
No. 7163242 is supported by the cited extensive water accumulations. The S&S designation is
likewise affirmed because it is reasonably likely that such conditions would seriously interfere with
both the passage of miners during emergencies, and the removal of disabled persons.
However, with respect to the issue of unwarrantable failure, Eagle Energy's No. 1 Mine is
an extremely wet mine with recurring water problems. Eagle Energy has positioned over 100
pumps at locations throughout the mine where water chronically accumulates. The water
pumping cycle is that water accumulates to levels significant enough to pump at which time the
water pump is turned on. The pump remains on until the water is drained and the pump is turned
1236

off Significantly, pumps cannot operate continuously because "dry pumping" would burn out the
pump motors. Thus, the normal process of pumping water requires waiting for accumulations to
occur that are deep enough to pump. Tr. III 119, 146-48.3
Since the pumping of water in the Mine No. 1 is an ongoing process, for the reasons
discussed herein, the evidence does not support the conclusion that the reference in Citation
No. 7163242 to Eagle Energy's previous notations of water accumulations in its weekly
escapeway book during the three weeks preceding September 2, 1997, refers to the same water
observed on September 2, 1997. Although Eagle Energy obviously was on a heightened state of
awareness with regard to its mine's water problems, a heightened state of awareness, alone, does
not, as the Secretary suggests, render subsequent violative water accumulations unwarrantable
per se. Rather, the question of whether a violation is attributable to an operator's aggravated or
unjustified conduct must be resolved based on the particular facts surrounding the violation,
including examining such factual issues as the duration of water accumulations and the reasons for
their existence.
The primary means of pumping water to the surface from Eagle Energy's 10 Left intake
escapeway is pumping water onto the moving beltline. Using this method, the water is absorbed
by coal on the beltline and carried to the surface. However, the beltline in the 10 Left section was
dismantled on July 9, 1997, when Eagle Energy ceased continuous mining operations to prepare
for longwall operations. The secondary means of pumping water after the beltline had been
dismantled on July 9, 1997, was converting the incoming fresh water line, normally used for dust
and fire suppression during mining operations, to a discharge line.
However, on Labor Day weekend, Saturday, August 30, 1997, through Monday,
September 1, 1997, the final stages of the longwall move were performed. Thus, at
approximately 4:00 p.m. on Sunday, August 31, the discharge line was re-converted to a fresh
waterline to facilitate longwall preparations in anticipation of longwall mining and normal beltline
operations commencing at 7:30 a.m. on Monday, September 1, 1997. However, as a
consequence of several unanticipated beltline breakdowns, operations did not begin until the
afternoon of Tuesday, September 2, 1997, at which time the pumping of water on the beltline
could resume. Thus, at the time the cited water conditions were observed during the early
morning hours of September 2, 1997, it is undisputed that Eagle Energy had neither the primary,
nor the secondary, means of pumping water available. Given these undisputed, significant
mitigating circumstances, as well as additional mitigating factors, 104(d)(l) Citation
No. 7163242 shall be modified to a 104(a) citation to reflect that the cited condition was not a
consequence of Eagle Energy's unwarrar1:table failure.

3

The transcription service has prepared the transcript of this six day proceeding by
volume rather than consecutive pages. Consequently, transcript references will note days one
through six of the trial by Roman numeral followed by the page number.
1237

II. Preliminary Findings of Fact

On August 31, 1996, Eagle Energy, a subsidiary of A.T. Massey Coal Company, acquired
the Mine No. 1 from Eagle Nest, Inc., a subsidiary of Bethlehem Steel Corporation. Eagle
Energy employs approximately 140 people at its Mine No. 1. There are about 84 miners who
work underground in addition to 30 to 40 supervisors.
Eagle Energy's Mine No. 1 is a wet or damp mine. Water seeps out from the mine top
and/or bottom, and accumulates in various locations throughout the mine. Water also
accumulates during a heavy rainfall, flowing down to the underground mine from the surface.
In addition water seeps into the mine from an adjacent abandoned mine that is inundated with
water.
The 10 Left section was developed as a three entry system with the continuous mining
machine. While the continuous miner was advancing in the section, the return air entry was the
No. 1 entry, the No. 2 entry served as the conveyor belt and track entry, and the No. 3 entry was
the primary escapeway intake air entry. The three entries were separated by stoppings. An
incoming six-inch diameter fresh water line was installed in the No. 2 belt/track entry to bring
fresh water to the working face and to provide fire protection along the belt. While the 10 Left
section was being mined by the continuous miner, water was being removed from the section by
pumping water onto the beltline through discharge hoses connected to pumps. The water was
absorbed by the coal on the beltline and carried to the surface. Longwall mining was occurring in
the 9 Left section while continuous mining progressed in the 10 Left section.
On July 9, 1997, continuous mining in the 10 Left section was completed and the section
became "non-producing." The continuous miner was then moved to the 2 North section of the
mine. In anticipation of bringing the longwall from the 9 Left section to the 10 Left section, on
July 9, 1997, Eagle Energy began dismantling the 10 Left belt conveyor to move it from the
No. 2 entry to the No. 1 entry. In dismantling the belt conveyor, Eagle Energy lost its ability to
pump water out of the section.
On July 10, 1997, Mine Safety and Health Administration (MSHA) inspector Albert
"Benny" Clark was at the Mine No. 1 conducting a regular "triple A" inspection. As part of his
inspection that day, Clark traveled the 10 Left intake escapeway (the No. 3 entry) to determine if
Citation No. 7160006 issued by MSHA inspector Andrew Nunnery on June 24, 1997, should be
terminated. Citation No. 7160006 cited a non-S&S violation of section 75.380(d)(l) for water
accumulations in the 10 Left No. 3 escapeway entry ranging "in depth from I" to 14" with slick
and muddy bottom at crosscut 49 to 48 for a distance of approx. 100 feet." Gov. Ex. 29.
NlUUlery characterized Eagle Energy's degree of negligence as "moderate" even though
normal continuous mining operations were in progress, and, unlike this case, the beltline was
operational and available for removing water from the entry.

1238

Clark found the~e was water at the location cited in Citation No. 7160006. Believing it
was the same water cited by Nunnery, Clark issued 104(b) Order No. 7163178 on July 10, 1997,
for Eagle Energy's alleged failure to abate Citation No. 7160006. However, 104(b) Order
No. 7163178 was subsequently vacated during a Health and Safety Conference on procedural
grounds.
Inspector Clark also issued Citation No. 7163177 on July 10, 1997, citing an S&S
violation of section for 75.380(d)(l) for water accumulations between 1 and 24 inches in depth
between the 69 and 71 crosscuts for a distance of200 feet. Clark testified that he believed the
violation was due to Eagle Energy's unwarrantable failure because there were notations in the
weekly examination book of similar water accumulations for the preceding five weeks. However,
Clark testified he was persuaded by Safety Director Jeffrey Bennett and then Superintendent Stan
Edwards to issue Citation No. 7163177 as a 104(a) citation rather than an unwarrantable 104(d)
citation because of their assurances that future escapeway water problems would be prevented.
Although safety director Bennett Energy provided assurances that Eagle Energy's
water problems would be addressed, it was apparent that Eagle Energy could not abate Citation
No. 7163177 issued by Clark, as the normal method of pumping water from the section was no
longer available because the beltline had been dismantled. Clark initially suggested that Bennett
could run a discharge line approximately 1,000 feet to the Mudlick Mains discharge line.
However, upon further reflection, Clark conceded that 1,000 feet was too long a distance to run a
water line. Specifically Clark testified, "[Bennett and I] throwed (sic) it around. We was (sic)
talking about ways of getting rid of [the water]. We discussed if we could run it over to Mudlick,
and there was no way. It was too far." Tr. ID 90.
As an alternative, Inspector Clark suggested that Bennett should convert the section's
fresh water line to a discharge line. Bennett agreed to reverse the fresh water line. Citation
No. 7163177 was terminated by Clark on July 11, 1997, after the cited water accumulations
had been discharged through the fresh water line. Eagle Energy did not contest Citation
No. 7163177, and it paid a civil penalty of$362.00. Clark testified that Eagle Energy continued
to follow his suggestion after July 11, 1997, by continuing to use the fresh water line as a
discharge line. Tr. ID 124.
The primary escapeway route from the 10 Left section was the 10 Left intake escapeway
into the Cook Mountain Mains. However, roof falls occurred in the Cook Mountain Mains on
August 4, 1997, and August 22, 1997. The second roof fall was removed on August 29, 1997,
the Friday before Labor Day. While the Cook Mountain Mains was impassable, the primary
escapeway route was re-designated as the 10 Left intake escapeway into the Mudlick Mains.
During this period when the Cook Mountain Mains could not be used as an escapeway, the cited
areas of water accumulations in the 10 Left intake escapeway that led to the Cook Mountain
Mains were not designated as an escapeway route. Thus, the cited areas of water accumulations
were not in an escapeway route· from August 22 until August 29, 1997, when these areas were
reestablished as the primary escapeway in preparation for the anticipated start of 10 Left
1239

Longwall operations beginning at 7:30 a.m. on Monday, September 1, 1997.
On August 13, 1997, while continuing his Triple A inspection, Clark issued Citation
No. 7163218 citing another S&S violation of section 75.380(d)(l) for water accumulations in the
10 Left intake escapeway measuring 1 to 15 inches in depth with slick and muddy bottom at
crosscuts 97, 98 and 99.4 Significantly, Clark did not characterize this violation as attributable to
Eagle Energy's unwarrantable failure, despite the fact that, also unlike this case, the fresh water
line was available for use as a discharge line. The citation was terminated on August 14, 1997,
after the water was pumped and discharged through the fresh water line. Eagle Energy did not
contest Citation No. 7163218, and it paid the $362.00 civil penalty proposed by the Secretary.
Hourly miners did not work at Eagle Energy's Mine No. 1 on Labor Day weekend from
Saturday, August 30 through Monday, September 1, 1997. On that weekend, the mine was
staffed with 20 to 30 management personnel who had decided to complete the longwall move on
their own. On Sunday, August 31, 1997, at approximately 4:00 p.m., the discharge line was
converted back to a fresh water line to facilitate impending longwall operation. The fresh water
line was needed to power up the shields for dust suppression, thus it could not be turned back to a
discharge line without interfering with longwall start-up. When the water line was converted to
fresh water, the pump lines in the 10 Left intake escapeway were re-directed to the belt conveyor
that was now located in the No. 1 entry.
On Monday morning on September 1, 1997, Eagle Energy started the beltline. However,
it pulled apart at several locations and had to be repaired. Thus, longwall operations were
delayed until the following day. On Tuesday, September 2, 1997, at approximately 7:00 a.m.,
Eagle Energy once again attempted to start the belt conveyor, but it again pulled apart in several
locations.
Shortly after the belt pulled apart for the second time, Clark, and Madison Field Office
Supervisor Terry Price, arrived at the Eagle Energy mine at approximately 8:30 a.m. on Tuesday,
September 2, 1997, to continue the Triple A inspection. After reviewing the preshift and on shift
books, Clark and Price traveled by mantrip to the 10 Left section. Clark and Price were
accompanied by Safety Director Bennett. Upon arriving in the 10 Left section Clark and Price
noted general damp and wet conditions. The No. 1 belt entry had several water accumulations
and was generally damp; the No. 2 track entry also contained several areas of water
accumulations, soft ribs, and a hooved bottom in several places; and the No. 3 intake escapeway
was damp to wet, had several water accumulations, loose ribs at different locations, and a hooved
bottom in some locations.

4

Citation No. 7163218 states the violative water accumulations were in the 9 left section.
Clark testified the reference to the 9 left section is erroneous, and that the site of the violation was
in the 10 Left section. Tr. III 21-22.
1240

After Clark terminated citations that previously had been issued at the longwall face,
Clark, Price and Bennett started walking down the track entry. At crosscut 70, the inspection
party came across a large water accumulation, which extended into the crosscut right up to the
stopping between the track and intake entries. Based on the amount of water he observed in the
vicinity of the 70 crosscut in the track entry, Clark knew there would be water at the 70 crosscut
in the intake escapeway.
In order to get into the intake escapeway, the inspection party traveled along the edge of
the rib to get past the accumulation in the track entry to the nearest mandoor between the track
and intake entries. When they arrived at the 70 crosscut at the intake escapway, as expected,
Clark observed water accumulations at this location as well. In fact, the water at the 70 crosscut
in the intake escapeway and at the 70 crosscut in the track entry was one continuous water
accumulation. The distance between the track entry and the intake escapeway is about 100 feet.
At crosscut 70 in the intake escapeway, Clark waded out into the water accumulation until
the water was about Y2 to 1 inch from the top of his boots. At that time Clark was wearing
metatarsal boots that are approximately 13 inches in height. Clark reached out as far as he could
with a straight arm and took several measurements of the water's depth with his retractable metal
tape line. Clark held the tape line straight up and down and measured 15 inches of water. He did
not try to go any further out into the water because the water was murky and the depth of the
water was over his boots. Clark also observed that the water accumulation in the intake
escapeway in the vicinity of the 70 crosscut extended from rib to rib (about 20 feet) and was
about 110 feet from shallow end to shallow end. Clark testified that throughout his inspection of
the intake escapeway, Bennett did not object to the method of measurement or in any way
demonstrate that he disagreed with the measurements taken by Clark. Tr. II 214, 225, 237.
The inspection party started walking the intake escapeway in an outby direction. When
they got to crosscut 60, Clark observed another sizeable water accumulation. Clark once again
waded into the water as far as he could·go without letting the water go over the top of his boots
and measured 15 inches of water. Clark also observed water extending from rib to rib, 90 feet in
length. Because he could not see the mine floor, Clark determined the accumulation was too
hazardous to walk through. Instead the inspection party avoided the accumulation by
backtracking to the nearest mandoor, traveling outby in the track entry to the next mandoor, and
crossing back over into the intake escapeway.
Once back in the intake escapeway, the inspection party continued traveling in an outby
direction. Between crosscuts 51 and 52, Clark observed another water accumulation measuring
12 inches deep. He observed the water extended from rib to rib, 40 feet in length. Clark
determined the water accumulation was too hazardous to walk through, so the inspection party
backtracked to the nearest mandoor, traveled outby in the track entry, and re-entered the intake
escapeway through the next mandoor.

1241

The inspection party continued walking the intake escapeway in an outby direction.
About 20 feet inby crosscut 49, Clark observed a water accumulation which extended for about
120 feet in length to crosscut 48. Clark measured the water depth and determined the water was
at least 15 inches deep. The inspection party did not walk through the accumulation. Instead,
they backtracked to the nearest mandoor and traveled outby to the surface via the track entry.
In addition to the depths and extent of the water accumulations, Clark observed that loose
coal from the ribs had rolled off into the water. Clark also noted the mine floor was slippery
when he waded into the water accumulations and that it was uneven with slopes, potholes and
hooves in some locations. The irregularities in the mine floor made it difficult for Clark to
determine whether the water got deeper or more shallow and contributed to the potential hazard.
There were also pieces of wood floating in the water, and coal deposits and discharge lines
sticking out of the water. While they were still underground, Clark informed Bennett that he was
going to issue a citation for the water in the escapeways.
Once the inspection party got back to the surface, Clark checked the weekly examination
books for the 10 Left escapeway. The weekly escapeway book contains entries of firebosses
that examine the escapeways on a weekly, rather than daily basis. Price stated that, with the
exception of the area in the working section, examiners normally were not in the intake
escapeway more than once per week. Clark found that water accumulations in the general
vicinity of the water he had just observed in the 10 Left intake escapeway on September 2, 1997,
had been noted by entries in the weekly examination book on August 15, August 22 and
. August 29, 1997. However, Clark did not see any indication on the weekly examination reports
that any action (i.e., pumping) had been taken to correct the hazardous condition. As a result,
Clark concluded that no corrective action had been taken. Tr. V 344.
Clark's conclusion was, in part, based on his comparison of the entries for the 10 Left
intake escapeway with the Mudlick intake escapeway. In this regard, Clark saw that entries of
fireboss Reams reflected ''water over the boots" in the Mudlick Intake on August 14, and action
taken entries of water "being pumped" or "pumped down." In contrast, when Reams observed
''water over boots" in the 10 Left intake, he reported his observation, but there is no report, either
by Reams, or another fireboss, that any corrective action had been taken. Similarly, fireboss
Fisher reported a hazardous water accumulation in the Mudlick Intake on August 21 and noted
that the water was being pumped. In contrast, while Fisher noted water accumulations in the
. 10 Left intake on August 22, neither he, nor another fireboss, noted that any action was being
taken to correct the hazardous condition.
After examining the weekly escapeway examination book, Clark looked at the daily
preshift and onshift reports. Beginning with the third onshift report on August 29, 1997, water at
crosscut 70 in the 10 Left No. 2 track entry was reported under the column marked "Violations
and other Hazardous Conditions Observed and Reported" on nearly all of the preshift and onshift
reports from August 29 to September 2, 1997. Although the condition was noted as "reported,"
there are no entries reflecting that action was taken to discharge the noted water before the
1242

discharge line was converted back to a fresh water line on August 31, 1997.
Although Bennett, who was with Clark while he was examining the reports, did not tell
Clark that corrective action which was not listed in the books had been taken to pump the water
out of the intake escapeway, Production Director John Adkins and Assistant Superintendent
Harry Walker testified materials were stored in the intake escapeway and scoops traveled
the escapeway during the longwall setup. Tr. III 76-77; Tr. IV 167-70; Tr. V 100-01. Walker
and Adkins testified pumps were continually being turned on and off to discharge water
accumulations. Tr. V 100-01; Tr. IV 141.
As a result of his observations underground and his examination of the books in the mine
office, Clark concluded that the intake escapeway was not being maintained in a safe condition.
Clark told Bennett that the citation was going to be issued as an unwarrantable failure violation
because the hazardous condition had been repeatedly reported in the weekly examination books
without any action being taken to correct the problem. Tr. III 120-121, 216. Consequently,
Clark issued 104(d)(l) Citation No. 7163242, alleging a significant and substantial violation of30
C.F.R. § 75.380(d)(l). Tr. III 34, 36, 39-40, 41-45.
Clark concluded that the violation was significant and substantial because the water in the
accumulations was muddy, the mine floor could not be seen, even at the shallow end,
and the bottom was slick. These conditions created a slipping or stumbling hazard to miners,
especially to miners who may be hurrying to get out of the mine because of an accident or
disaster. Tr. III 34, 39-40, 211. In addition, there was material floating in the water (i.e., wood)
and things sticking out of the water (i.e., lumps of coal and discharge lines). Tr. ID 211. The
wood pieces observed floating or sticking out of the water looked like "half-headers" used for
blocking or capping timber. Tr. ID 217.
Clark concluded the violation was the result of the Eagle Energy's unwarrantable failure
to comply with the standard because: management was aware of the hazardous water
accumulations since the hazardous accumulations had been reported in the weekly examinations
reports for at least three weeks prior to the inspection and there were no notations that corrective
action had been taken; Eagle Energy had been warned on prior occasions about water in its
escapeways; and Eagle Energy had a history of previous violations for the same violative
condition. Tr. ID 41, 233, 261, 266.
The belt was repaired by the afternoon of September 2, 1997, between 12:00 p.m. and
3:00 p.m. at which time the cited water accumulations could be pumped onto the moving beltline
and transported to the surface. 104(d)(l) Citation No. 7163242 was terminated at 10:30 a.m. on
September 4, 1997.

1243

ill. Further Findings and Conclusions
At the outset, it is a fundamental principal that the Mine Act imposes on the Secretary the
burden of proving each element of 104(d)(l) Citation No. 7163242, i.e., that the violation
occurred, that it was significant and substantial, and that it was attributable to Eagle Energy's
unwarrantable failure. Garden Creek Pocahontas Company, 11FMSHRC2148, 2152-53. The
testimony of Inspector Clark and Supervisory Inspector Price was sincere and credible. Their
testimony establishes that the fact of the violation, as well as its S&S nature, are self evident.
While I am cognizant ofMSHA's apparent frustration regarding Eagle Energy's repeated failure
to control its water problems despite its assurances, the facts in this case, given the Secretary's
burden of proof in the face of significant mitigating circumstances, do not support a finding of
unwarrantable failure.
A. Fact of the Violation

104(d)(l) Citation No. 7163242 cites a violation of the mandatory standard in section
75.380(d)(l) that requires each escapeway to be "[m]aintained in a safe condition to always
assure passage of anyone, including disabled persons." A mandatory safety standard must be
enforced consistent with its intended purpose. Although Eagle Energy provided testimony that an
injured miner on a stretcher ordinarily would be removed from the mine by the No. 2 track entry
rather than the No. 3 intake escapeway, it is the No. 3 intake escapeway, rather than the track
entry, that is the primary means of escape in the event of exigent circumstances such as a fire or
explosion. Thus, the propriety of the intake escapeway's conditions with respect to the cited
water accumulations must be viewed in the context of miners having to use the escapeway in
emergency conditions when they are in a hurry to evacuate the mine.
The Commission has determined that the language in section 75.380(d)(l) is "plain and
unambiguous" in that it imposes on an operator an obligation to maintain escapeways that pass
the general functional test of"passability." Utah Power and Light, 11 FMSHRC 1926, 1930
(October 1989). Eagle Energy's assertion that the nature and extent of the cited water
accumulations were not hazardous, or in violation of section 75.380(d)(l), is belied by its
repeated entries of similar water conditions requiring corrective action in its weekly examination
book. Moreover, Eagle Energy has not refuted the testimony of Clark and Price that reflects that
they, as well as Bennett, repeatedly went through mandoors to circumvent areas of the intake
escapeway that were impassable.
Finally, in denying the violation, Eagle Energy seeks to have it both ways. Eagle Energy
admits it had no means of pumping water accumulations in the No. 3 escapeway from 4:00 p.m.
on Sunday, August 31, 1997, when the discharge hose was converted to a fresh water line, until
the morning of Tuesday, September 2, 1997, when the cited conditions were observed by Clark
and Price in the presence of Bennett. In defending against the unwarrantable failure charge,

1244

Safety Director Adkins testified that, absent pumping, water rapidly accumulated at locations of
chronic accumulations at depths of approximately eight inches in a 24 hour period. Tr. IV 17576. If water quickly re-accumulated, as Eagle Energy contends, then it is unreasonable to argue
an absence of significant water accumulations on Tuesday morning given Eagle Energy's inability
to discharge water since Sunday afternoon.
In short, the evidence amply supports the conclusion that the cited water accumulations
were significant and extensive ranging up to 15 or more inches in depth and extending over areas
over 100 feet in length. It is obvious that such water accumulations would impede the progress of
miners during an emergency evacuation, particularly miners who are "disabled" by virtue of injury.
Accordingly, the Secretary has demonstrated the fact of a section 75.380(d)(l) violation.

B. Significant and Substantial
A violation is properly designated as S&S in nature if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a reasonably serious nature. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1(January1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to [by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature. 6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988), affg 9 FMSHRC
2015, 2021(December1987) (approving Mathies criteria).
In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129, (August 1985), the
Commission explained its Mathies criteria as follows:
We have explained further that the third element of the Mathies formula 'requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.' U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984).

1245

The Commission subsequently reasserted its prior determinations that as part of any
"S&S" finding, the Secretary must prove the reasonable likelihood of an injury occurring as a
result of the hazard contributed to by the cited violative condition or practice. Peabody Coal
Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508
(April 1996).
With regard to the first element of Mathies, the Secretary has demonstrated a violation of
the cited mandatory standard. Turning to the second and fourth elements of the Mathies test,
there is little doubt that the cited extensive water accumulations in areas of murky, slick and
uneven bottom, created the discrete safety hazard of slipping and falling, particulary during an
emergency evacuation, that was reasonably likely to result in injury of a reasonably serious nature.

The remaining element of Mathies requires an analysis whether there was a reasonable
likelihood that the hazard of slipping and falling would result in injury. The Commission
visited the issue of the significant and substantial nature of water accumulations in escapeways
in Eagle Nest, Incorporated, 14 FMSHRC 1119(July1992). The Eagle Nest case involved
the same Mine No. 1 that is the subject of this proceeding when the mine was operated by a
predecessor of Eagle Energy. The Commission concluded, that while the exercise of caution by
miners using an escapeway with violative water accumulations may lessen the chances of a slip
and fall injury, the exercise of caution does not mitigate the hazard. 14 FMSHRC at 1123.
Rather, it is the significance of the hazard and the contribution of that hazard to potential injury
that is determinative of the S&S issue. Id.
The cited conditions created a significant likelihood of slipping on the slick escapeway
floor as well as the reasonable likelihood of falling over a submerged obstacle, or stumbling in a
pothole. Consequently, the Secretary has demonstrated that the cited violation was properly
designated as significant and substantial.
C. Unwarrantable Failure
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. At 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (71h Cir.. 1995) (approving Commission's unwarrantable failure test).

1246

Without question, if the Secretary can demonstrate the cited water accumulations in the
No. 10 Left intake escapeway are the same accumulations that had been repeatedly ignored
without any remedial pumping after they had been repeatedly noted in the weekly examination
book on August 15, August 19, and August 29, 1997, the cited violation is attributable to
Eagle Energy's unwarrantable failure. Since Clark and Price do not have any personal knowledge
concerning the condition of the No. 3 escapeway from August 15 until their September 2, 1997,
inspection, the Secretary seeks to establish an unwarrantable failure
based on circumstantial evidence.
The Commission has recognized that the Secretary may establish the elements of a
violation by inference. Mid-Continent Resources, 6 FMSHRC 1132 (May 1984). However, the
inference must be inherently reasonable and there must be a rational connection between the
evidentiary facts and the ultimate fact to be inferred. Id. at 1138. Here, the Secretary relies on the
repeated entries in the preshift examination book since August 15, 1997, without entries of
corrective action, to support the inference that the cited water accumulations existed since August
15, 1997, without any efforts to remove these slip and fall hazards. Ordinarily, such
circumstantial evidence would be compelling. However, this is no ordinary case.
As a preliminary matter, although the Secretary throughout this proceeding asserts that
Clark and Price reached the firm conclusion that the water accumulations they observed in the ··
No. 3 entry on September 2, 1997, was the same water, without any remedial pumping, as the
accumulations noted in the weekly examination book during the preceding three weeks, an
examination of their testimony supports no such conclusion. Clark's testimony that he concluded
no pumping had been performed in the No. 3 intake escapeway from August 15, 1997, through
the time of his observations during the morning of September 2, 1997, is inconsistent with his
other testimony, inconsistent with his assessment of Eagle Energy's degree of negligence, and,
inconsistent with Price's testimony.
Clark conceded he had no personal knowledge of the conditions in the No. 3 entry from
August 15, 1997, until his September 2, 1997, inspection. Tr. ID 104. Clark also conceded that
the water accumulations he observed in the No. 3 entry were at locations where there were
chronic water problems, and that water would re-accumulate in these areas after a pump had
been turned of£ Tr. III 147. Thus, in effect, Clark agreed that his September 2, 1997,
observations of water accumulations at the same locations that were previously noted in the
weekly examination book did not mean that those areas had not been recently pumped.
Finally, Clark testified that, if any pumping had been done despite the fact that it was not
reported, the pumping was inadequate since the water kept accumulating. Tr. ill 78; Tr. V 344.
However, repeated accumulations of water was a fact of life at the Mine No. 1. As previously
noted, accumulations of water could not be pumped until the degree of accumulations was
adequate to warrant turning on a pump. The fact that water accumulations had returned, is not,
as Clark concluded, evidence of an unwarrantable failure. In fact, Clark testified water
accumulations at various locations were chronic and that he "had run into this before. Crosscuts
1247

48 to 49 had been cited before with accumulation, and 70 had been cited before." Tr. III 146.
Rather, it is the duration of the cited water conditions that is important in determining whether
Eagle Energy committed an unwarrantable failure.
Significantly, Clark attributed the subject violation to Eagle Energy's high degree of
negligence rather than a reckless disregard. It is difficult to understand why Clark would
not characterize Eagle Energy's behavior as a "reckless disregard" if Clark had concluded
Eagle Energy had, in fact, ignored repeated entries in its examination books over a period of
approximately four weeks.
Moreover, Price conceded there must have been some efforts to discharge water
accumulations at the cited locations in the No. 3 entry. Price testified that, "there may have
been some pumping because they were hooked up," although he also believed "some of the
water was the same water." Tr. N 31. With respect to the question ofreckless disregard, Price
testified a reckless disregard requires evidence of an intentional failure to comply, and "that's not
the case here." Id.
Finally, on August 13, 1997, Clark issued Citation No 7163218, not in issue here, for
water accumulations in the No. 3 escapeway. The cited water accumulations on August 13,
1997, were not attributed to Eagle Energy's widespread failure to address pumping in that the
violation was not attributed to Eagle Energy's unwarrantable failure. The Secretary has not
provided any evidence to demonstrate that two days later, on August 15, 1997, Eagle Energy
began a course of conduct wherein it repeatedly ignored water accumulations in its escapeway.
To the contrary, Clark admitted Eagle Energy had continued to follow his July 10, 1997,
recommendation that it discharge water through the fresh water line stating that "they felt it was a
good way to do it." Tr. III 124.
Given the evidentiary facts at the time of Clark's September 2, 1997, inspection,
consisting of recurring water accumulations, installed pumps, and a temporary inability to
discharge water, the Secretary has failed to satisfy the Mid-Continent test that requires the
evidence to support the ultimate inference that the No. 3 escapeway had not been pumped since
August 15, 1997.
Having determined that the Secretary has not demonstrated Eagle Energy's longstanding
failure, over a period of weeks, to discharge the cited water accumulations, we turn to the
traditional inquiries for determining whether an operator's conduct evidences an unwarrantable
failure. The Commission has identified the following relevant factors that may be indicative of
unwarrantable conduct: (a) the extent of the violative condition; (b) the length of time that it has
existed; (c) whether an operator has been placed on notice that greater efforts are necessary for
compliance; and (d) the operator's efforts in abating the violative condition. Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (February 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
(August 1992).

1248

a. Extent
It is true that the water accumulations were extensive. However, the evidence reflects
that, from approximately 4:00 p.m. on Sunday August 31, 1997, until the cited accumulations
were observed by Clark and Price on Tuesday morning, September 2, 1997, Eagle Energy lacked
both the primary means of discharging water on its beltline and the secondary means of
discharging water by using its fresh water line as a discharge line.

On several prior occasions MSHA elected not to cite Eagle Energy for an unwarrantable
failure for Eagle Energy's failure to keep its escapeway clear. For example, Eagle Energy lacked
any discharge method for pumping water before Clark suggested using the fresh water line for
discharge when Clark issued Citation No. 7163177 on July 10, 1997, for escapewaywater
accumulations. Similarly, Eagle Energy's discharge line was operational when Clark issued
Citation No. 7163218 on August 13, 1997, for escapeway water accumulations. fu effect,
MSHA now seeks to undo its previous restraint with respect to alleging an unwarrantable failure
under circumstances where Eagle Energy temporarily had no means of pumping the cited water
accumulations. 5
b. Duration
The Secretary could still prevail on the issue of unwarrantable failure if she could
establish, by a preponderance of the evidence, that the cited water conditions existed for a
significant period of time prior to the August 31, 1997, conversion of the discharge line to fresh
water. However, Clark and Price, as well as Eagle Energy witnesses Adkins and Walker, all
testified that water accumulations chronically reoccur over a short period of time. Thus, the
presence of accumulations alone, is inadequate to demonstrate an inexcusable delay in clearing the
cited water conditions given Eagle Energy's short term inability to discharge water.
c. Notice
The Secretary's heavy reliance on similar previous citations, in addition to notations of
water accumulations in examination books, as a basis for demonstrating that Eagle Energy was on
notice only serves to establish the obvious. Adkins testified without contradiction that the Mine
No. 1 was engineered to permit it to be located under an inactive mine. Therefore, entries and
crosscuts run in directions that impede water drainage. Tr. IV 140-41. The fact that Eagle
Energy knows that its Mine No. 1 is a wet mine does not make all violations for water
accumulations unwarrantable per se. The issue of unwarrantable failure must be determined on a
case-by-case basis. Here, the Secretary has not carried her burden of demonstrating that this is a
case of unwarrantable failure.

5

I am not suggesting that Eagle Energy did not have an obligation to keep the escapeway
clear of hazardous water conditions on September 2, 1997. I am simply stating that its failure ~o
do so was not a manifestation of aggravated or unjustifiable conduct given the compelling
mitigating circumstances in this case.
1249

d. Compliance Efforts
Finally, we tum to the question of Eagle Energy's compliance efforts. Significantly, Eagle
Energy has over 100 pumps placed in areas of chronic water accumulation throughout the mine.
There is no evidence that Eagle Energy failed to use its fresh water line for discharge in the No.
10 Left section since the line was converted on July 10, 1997, after the beltline had been
dismantled. In fact, Price testified the pump lines had been connected to discharge water. As
previously noted, the fact that Eagle Energy had no means of pumping water during the final
interim stages of the longwall setup when the subject citation was issued on September 2, 1997,
does not relieve it of its obligation to keep the escapeway clear. However, it does not follow that
its failure to do so must be attributable to its unwarrantable failure.
Although the Secretary has failed to demonstrate the most common elements of
unwarrantable behavior, it should be noted that there are additional mitigating circumstances
in this case. The subject citation was issued on the morning after Labor Day weekend when Eagle
Energy had not been staffed by regular hourly employees. In addition, there were two relevant
roof fall events. The last roof fall that occurred on August 22, 1997, was not cleared until the late
evening of Friday, August 29, 1997, when the Labor Day weekend began. Tr. IV 205-06. That
roof fall diverted the attention of Eagle Energy management personnel who were already shortstaffed on Labor Day weekend. Moreover, the roof falls resulted in temporarily altering the
escape route to exclude areas containing the cited accumulations until the roof fall debris was
removed. 6 Therefore, giving priority to clearing the roof fall is understandable.
The roof fall problem is an additional mitigating factor.

6

Without personal knowledge, the Secretary relies on conflicting deposition testimony,
not introduced at trial, reflecting that the respondent's discharge line may have been converted
to fresh water several days earlier than 4:00 p.m on Sunday, August 31, 1997. Sec. Reply Br.
at 2-3. As a threshold matter, this evidence was not entered at trial and may not be considered.
However, I note parenthetically, that the Secretary has not rebutted the fact that the escapeway
was rerouted from August 22, 1997, when the second roof fall occurred, until the late evening of
Friday, August 29, 1997, when the roof fall was cleared.

1250

Thus, on balance, the evidence fails to establish that Eagle Energy's actions were so
egregious that they constituted a reckless disregard, or, that its behavior otherwise evidenced
aggravated or unjustifiable conduct. 7 Accordingly, 104(d)(l) Citation No. 7163242 shall be
modified to a 104(a) citation thus removing the unwarrantable failure charge.
However, I am retaining the high degree of negligence attributed to Eagle Energy to
reflect that, in the final analysis, despite mitigating circumstances, Eagle Energy was still
responsible for maintaining escapeways in this wet mine in a passable condition, and, for ensuring
that pertinent entries were made in the examination books to reflect actions taken to address
hazardous conditions noted. Therefore, I am imposing the $2,500.00 civil penalty initially
proposed by the Secretary for Citation No. 7163242 to reflect the serious gravity of the violation,
Eagle Energy's history of failing to control water accumulations in escapeways, and Eagle
Energy's admitted repeated failure to note corrective actions in its examination books.8

ORDER
ACCORDINGLY, IT IS ORDERED that 104(d)(l) Citation No. 7163242
IS MODIFIED to a 104(a) citation to reflect that the cited violation of section 75.380(d)(l) is
not attributable to Eagle Energy's unwarrantable failure.
IT IS FURTHER ORDERED that Eagle Energy shall pay a $2,500.00 civil penalty in
satisfaction of Citation No. 7163242.
IT IS FURTHER ORDERED, consistent with the parties' settlement agreements
reached at trial, that Eagle Energy shall pay civil penalties of $50.00 in satisfaction of Citation No.
7158529, and $300.00 for Citation No. 7163240.

7

I am also not suggesting that high negligence can never provide a basis for an
unwarrantable failure finding.
8

I credit Clark's testimony that he had previously warned Bennett "about not showing
any corrective action in the [examination] book[s]." Tr. ill 77. Moreover, the essence of
Eagle Energy's defense in this case is that it had pumped water where water hazards had been .
noted on examinations despite failing to note corrective action in the weekly escapeway and
on-shift examination books.
1251

IT IS ORDERED that Eagle Energy's total civil penalty of$2,850.00 shall be made
within 40 days of the date of this decision. Upon timely payment of the $2,850.00 civil penalty,
this matter IS DISMISSED.9

Jerold Feldman
Administrative Law Judge

9

I have also considered several post-hearing motions filed by the respondent, as well as
the Secretary's responses thereto. The respondent's motions to strike evidence of Citation
No. 7187806 issued on August 22, 1999, concerning a methane explosion, proffered as an
attachment to the Secretary's proposed findings, and, the portions of the deposition testimony of
Superintendent Stanley C. Edwards, p~offered as an attachment to the Secretary's reply brief,
ARE GRANTED, as these documents were not presented, or otherwise referred to, in the
Secretary?s case. The admission of these documents at this late, post-hearing stage would deprive
the respondent of its right to cross examination.
The respondent also filed a motion to strike the Secretary's reply brief because the filing of
reply briefs was not authorized when the post-hearing briefing schedule was discussed on the
record at the culmination of the hearing. In view of the fact that the respondent was provided
with the opportunity to respond, and, has responded, to the Secretary's reply brief, the
respondent's motion to strike IS DENIED.
In addition, the respondent filed a motion seeking a show cause order requiring the
Secretary to demonstrate why this matter should not be dismissed because of the Secretary's
October 12, 1999, correspondence requesting that I consider the Com.mission's recent decision in
Windsor Coal Company, 21FMSHRC997(September1999). I do not view the respondent's
request for a show cause order as a serious proposal as the Secretary's October 12, 1999,
correspondence only requested that I do what I am already obligated to do - - consider all
relevant case law. Accordingly, the respondent's request for an Order to Show Cause

IS DENIED.
Finally, the respondent has also requested attorney's fees for legal expenses associated
with its post-hearing motions. Notwithstanding the fact that the respondent has not shown that it
is a small entity eligible for reimbursement under the Equal Access to Justice Act, the respondent
has failed to demonstrate that legal expenses associated with motions filed during a proceeding
that clearly was justifiably brought by the Secretary are reimbursable. Moreover, it is noteworthy
that several of the subject motions haye been denied on the merits. Accordingly, the respondent's
request for attorney's fees IS DENIED.
1252

Distribution:
Douglas N. White, Associate Regional Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)
David J. Hardy, Esq., Julia K. Shreve, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
/mh

1253

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 18, 1999
WILLIAM KACZMARCZYK,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. PENN 99-154-D
WILK CD 99-03

READING ANTHRACITE COMPANY,
Respondent

Ellangowan Refuse Bank #45
Mine ID No. 36-02234

DECISION
Appearances:

William Kaczmarczyk, Barnesville, Pennsylvania, pro se;
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, PC,
Pottsville, Pennsylvania, on behalf of Respondent.

Before:

Judge Melick

This case is before me upon the Complaint of William Kaczmarczyk pursuant to Section
105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act."
Mr. Kaczmarczyk, an applicant for employment with Reading Anthracite Company (RAC),
alleges as adverse action under Section 105(c)(1) of the Act, that RAC violated the 1998
Collective Bargaining Agreement (1998 Contract) when it transferred employee Ronald Yarnell
into a vacant electrician's position rather than recalling him off the layofflist 1• More specifically,
Kaczmarczyk alleges in his January 7, 1999, complaint as follows:

Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment in any coal or other mine subject
· to this Act because such miner, representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, including a complaint notifying the operator or the
operator's agent, or the representative of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine, or because such miner, representative of
miners or applicant for employment is the subject of medical evaluations and potential transfer
under a standard published pursuant to section 101 or because such miner, representative of
miners or applicant for employment has instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify in any such proceeding, or because of
the exercise by such miner, representative of miners or applicant for employment on behalf of ·
himself or others of any statutory right afforded by the Act.

1254

Reading Anthracite's management discriminated against me by not
awarding me a position as an electrician. At this time, I have been laid off from my
previous work site (a union mine). Accordingly, Reading Anthracite's
management inserted another employee (younger in seniority) ahead of me in the
vacant electrical position at another mine site (also a union mine). My
qualifications are equal to this employee with less seniority. I should have been
awarded this position. Reading Anthracite's management refused to reca1l me
because of my prior involvement in protected activities.

Background
RAC production employees are represented by the United Mine Workers of America
(UMWA). The employees belong to local unions with each job site having its own local. RAC
also has certain other panel lists of employees with specialized assignments, one of which is the
electrical transient crew. Employees on that list enjoy rights on that panel as well as on their
"mother" local. The "mother" local is the local at the job site where the employee was first hired
by RAC. Seniority at RAC is established by job site, and therefore, also by the corresponding
union local. A company-wide multiunit panel list of employees is maintained for those on layoff
status. (Complainant's Exhibit No. 2, Article 17(d)).
The Complainant had been an employee of RAC since 1975 but was laid off on November
18, 1998. He had at earlier times held the classification of electrician, but at the time of his layoff
was working as a truck driver at the Maple Hill job site under UMWA Local Union 807. Over a
period of about six months, mostly the latter half of 1998, RAC had a reduction in work force,
losing approximately 100 union workers as well as a number of non-union office personnel.
Kaczmarczyk was among those laid off.
On December 31, 1998, John Yurdock resigned his position as an electrician at the New
St. Nicholas Breaker (Breaker), which is the job site for Local Union 7891. RAC' s General
Manager, Frank Derrick filled that job position shortly thereafter (around January 4, 1999) by
transferring Ronald Yarnell from his position on the transient crew to the electrician's position at
the Breaker. It is undisputed that Yarnell's "mother" local was the Breaker Local, Local Union
7891 (Respondent's Exhibit No. 2). Yarnell was accordingly returning to his "mother" local.
According to General Manager Derrick, this action was taken in lieu of laying off Yarnell. There
is no dispute that Kaczmarczyk was a member of Local Union 807 at all times relevant hereto and
has never been a member of either Local Union 7891 (the Breaker Local) or the transient crew.

Evaluation of the Evidence
Section 11 of the 1964 Supplementary Agreement (Complainant's Exhibit No. 1) provides
that seniority at RAC is governed by local union (panel) membership. These provisions were
continued and carried forward by virtue of Article l 7(a) of the 1998 Contract. Accordingly

1255

company-wide seniority is not observed.2 Specifically, Section 11 provides that "[s]eniority shall
be applied to all mines, surface plant and stripping employees separately, and there shall be no
invasion or interference by the employees of one panel by the employees of another." The
arbitration decision, John Ruschak, Jr., v. Reading Anthracite Company, Board of Conciliation
Grievance No. 8049 (1982), confirms that these provisions in the collective bargaining
agreements had also been a long-standing practice (Complainant's Exhibit No. 3). It was stated
therein as follows:
''Traditionally, seniority in the industry has been limited to a single mine or facility
and cannot be carried from one local union to another. There may be exceptions
by special agreement or practice, but they are not common. The Union has, itself,
jealously guarded the separateness of seniority rights, preserving job rights with
the facility for employees on the local seniority roster."
Neither party in this case has cited any exceptions by special agreement or practice.
Accordingly, within the framework of the controlling collective bargaining agreements and a
binding arbitration decision, it is clear that unless the Complainant was a member of Local 7891,
he had no seniority rights within that local to the electrician's job at issue. Since it is undisputed
that the Complainant was not a member of Local Union 7891, he had no seniority rights within
that local.
Kaczmarczyk also argued at hearing that the failure by RAC to have posted the
electrician's job was a violation of the 1998 Contract. The 1998 Contract clearly provides
however that posting is required only when the company otherwise hires a new employee "from
the street," rather than by filling a position with a present employee. (Article 17 (c)(l),
Complainant's Exhibit No. 2). Even assuming, arguendo, that the failure to post the job was a
violation, Kaczmarczyk would not in any event have had rights superior to those of Ronald
Yarnell. In this regard, Jay Berger, District Board member of the UMWA and testifying on behalf
of the Complainant, acknowledged at hearing that, if Yarnell was a member of Local 7891, it was
proper to have awarded him the position. Since the evidence in fact establishes that Yarnell
remained as a member of Local 7891, the Complainant's allegations in this regard must also be
rejected.
The Complainant in a discrimination case under the Act has the burden of proving his
allegations of adverse action. See Secretary ofLabor on behalf ofDonald Zecco v.
Consolidation Coal Company, 21FMSHRC985, 990 n .5. (September 1999). Here the
Complainant has alleged that he suffered adverse action when RAC violated the terms of its
collective bargaining agreement in transferring employee Ronald Yarnell into the vacant

2

An exception not here applicable applies to the multiunit panel. This provision
becomes relevant only in the event of a need to recall people from layoff status. It is applicable
only when a vacancy is posted to be filled and no one within the local bids on the position. The
position is then made available to those on layoff who are on the multiunit list.
1256

electrician's position rather than recalling him off the layoff list. As I have concluded herein, RAC
did not violate the collective bargaining agreement in this regard. Under the circumstances the
Complainant has failed to sustain his burden of proving the adverse action as alleged and
accordingly this case must be dismissed.

ORDER
Docket No. PENN 99-154-D is hereby dismissed.

GaryM ick
Adminis tive Law Judge

Distribution:
William Kaczmarczyk, RR 2, Box 131 DD, Barnesville, PA 18214 (Certified Mail)
Martin J. Cerullo, Esq., Cerullo, Datte & Wallbillich, PC, 450 West Market St.,
P.O. Box 450, Pottsville, PA 17901 (Certified Mail)
/mca

1257

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 24, 1999
SECRETARY OF LABOR, MSHA
on behalf of LEWIS FRANK BATES,
Complainant

DISCRTh1INATION PROCEEDING
Docket No. WEVA 99-121-D
HOPE CD 99-12

V.

CHICOPEE COAL COMPANY, INC.,
Respondent

Lilly Branch Surface Mine
Mine ID 46-08723

SECRETARY OF LABOR, MSHA
on behalf of EARL CHARLES ALBU,
Complainant
v.

DISCRTh1INATION PROCEEDING
Docket No. WEVA 99-122-D
HOPE CD 99-12

CHICOPEE COAL COMPANY, INC.,
Respondent

Lilly Branch Surface Mine
Mine ID 46-08723

DECISION
Appearances:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Complainants;
Forest H. Roles, Esq., Mark E. Heath, Esq., Heenan, Althen & Roles,
Charleston, West Virginia, for the Respondent.

Before:

Judge Feldman

The hearing in the temporary reinstatement cases in these matters was conducted on
June 2, 1999. At the temporary reinstatement proceeding, the parties advised that they had
reached a settlement agreement with respect to the temporary reinstatement of Lewis Frank
Bates. Specifically, the respondent, Chicopee Coal Company, Inc., (Chicopee), agreed to
economically reinstate_Bates by reinstating Bates' medical benefits, and paying Bates the weekly
salary he was earning immediately prior to his alleged January 25, 1999, discriminatory discharge.
A hearing on the merits was conducted with respect to the temporary reinstatement application of
Earl Charles Albu, a/k/a Chuck Albu.
The scope of a temporary reinstatement proceeding was governed by the provisions of
section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. §
815(c)(2), and Commission Rule 44(c), 29 C.F.R. § 2700.44(c), that limited the issue to whether

1258

the subject discrimination complaints were "frivolously brought." The rationale for the frivolously
brought standard in temporary reinstatement was addressed by the Court of Appeals, in Jim
Walter Resources v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). The Court stated:
... Congress, in enacting the 'not frivolously brought' standard, clearly intended
that employers should bear a proportionately greater burden of the risk of an
erroneous decision in a temporary reinstatement proceeding. Any material loss
from a mistaken decision to temporarily reinstate a worker is slight; the employer
continues to retain the services of the miner pending a final decision on the merits.
Also, the erroneous deprivation of an employer's right to control the makeup of
his work force under section 105(c) is only a temporary one that can be rectified
by the Secretary's decision not to bring a formal complaint or a decision on the
merits in the employer's favor. 920 F.2d at 748, n.11. (emphasis in original).
Applying this lesser burden of proof, the initial decision ordered Chicopee to temporarily
reinstate Albu to the position that he held immediately prior to his January 26, 1999, discharge, or
to a similar position, at the same rate of pay and benefits and with the same, or equivalent, duties
assigned to him. 21 FMSHRC 673, 680 (June 1999). The Commission, intimating no view on
the ultimate merits of Albu's underlying discrimination complaint, affirmed the initial decision to
reinstate Albu. 21FMSHRC717 (July 1999).
The hearing in these discrimination complaints that gave rise to the temporary
reinstatement proceedings was convened on November 2, 1999, in Charleston, West Virginia.
The scrutiny applicable to a trial on the merits of the underlying discrimination complaint is
entirely different from the minimal "frivolously brought" statutory standard of proof in temporary
reinstatement matters. Brock v. Roadway Express, Inc., 481U.S.252 (1987). In order to
prevail, a complainant has the burden of proving a prima facie case of discrimination under
section 105(c) of the Mine Act. In order to establish aprimafacie case, a complainant must
demonstrate that he participated in safety related activity protected by the Act, and, that the
adverse action complained of was motivated, in some part, by that protected activity. See
Secretary on behalfofDavid Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980) rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981); Secretary on behalfof Thomas Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981).
A mine operator may rebut a prima facie case by demonstrating, either that no protected
activity occurred, or, that the adverse action was not motivated in any part by protected activity.
Robinette, 3 FMSHRC at 818 n.20. An operator may also affirmatively defend against aprima
facie case by establishing that it was also motivated by unprotected activity and that it would have
taken the adverse action for the unprotected activity alone. See also Jim Walter Resources, 920
F.2d at 750, citing with approval Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642
(4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984);
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).
1259

The gravamen of the Bates and Albu discrimination complaints is that they were
terminated immediately after they expressed safety related concerns at a January 25, 1999, safety
meeting. The complaints concerned the qualifications of Vecellio and Grogan personnel who had
recently been designated by Chicopee to supervise certain mining operations. Vecellio and
Grogan is a company specializing in road building and mining in the State of West Virginia.
In addition to being Chicopee's subcontractor, Vecellio and Grogan also has provided substantial
financial resources to support Chicopee's continuing operations.
The evidence appears to support a prima facie case of discriminatory conduct given the
brief period of time that elapsed between the protected safety complaints and the Bates and Albu
terminations. 21 FMSHRC at 718. However, Bates' and Albu's apparent disinclination to work
with Vecellio and Grogan may have provided Chicopee with an independent business justification
for their terminations that could constitute a defense to these discrimination complaints.
For example, there was testimony at the temporary reinstatement proceeding concerning
threats that Albu had made against Vecellio and Grogan's superintendent, Dale McGrady.
21 FMSHRC at 676. McGrady had recently been designated by Chicopee to oversee road
construction activities, responsibilities that were previously assigned to Bates. This change in
Bates' assigned duties caused Bates to convene the January 25, 1999, safety meeting to ''warn"
his fellow employees that he was no longer responsible for ensuring the safety of the roadways.
Id. at 677. At the safety meeting Albu complained about Vecellio's equipment, characterizing the
equipment as "junk." Id. In short, the evidence reflects that the conduct of Bates and Albu may
have been detrimental to Chicopee's ongoing relationship with Vecellio and Grogan, a company
that Chicopee relied on for financial support.
At the hearing, the parties advised that they had agreed to settle these discrimination
cases. The terms of the parties' settlement were presented and approved on the record. The
settlement terms were committed to writing in the Secretary's Motions to Approve Settlement
filed on November 15, 1999.
With respect to Bates, in lieu of temporary reinstatement, Chicopee previously has agreed
to economically reinstate Bates effective May 26, 1999, pending the outcome of his discrimination
complaint. Chicopee now has agreed to pay Bates a lump sum payment as consideration for
Bates' withdrawal of his complaint. Chicopee also has agreed to provide Bates with a letter for
prospective employers specifying Bates' dates of employment and reflecting that Bates was
terminated due to a reduction in work force. Chicopee will provide employment references that
are consistent with the terms of this settlement and all references to this discrimination matter
shall be expunged from Bates' personnel records. Finally, Chicopee has agreed to allow Bates to
retain medical coverage for his wife at Bates' expense until Bates finds new employment, or until
Chicopee is no longer permitted by law to cover Ms. Bates on their company medical insurance
policy.

1260

Albu was reinstated effective June 30, 1999, pursuant to the initial decision granting the
Secretary's application for Albu's temporary reinstatement. 21 FMSHRC at 680. Chicopee now
has agreed to pay Albu a lump sum payment as consideration for Albu's withdrawal of his
complaint. Chicopee also has agreed to provide Albu with a letter for prospective employers
specifying Albu's dates of employment and reflecting that Albu was terminated due to a reduction
in work force. Chicopee will provide employment references that are consistent with the terms of
this settlement and all references to this discrimination matter shall be expunged from Albu's
personnel records. 1

ORDER
This decision formalizes the approval of the parties' settlement agreements that were
previously approved on the record. Consistent with their agreement Ms. Bates medical insurance
coverage shall continue without interruption.
IT IS ORDERED that Chicopee Coal Company immediately provide Bates and Albu
with written references for employment and that Chicopee Coal Company immediately expunge
all references to these temporary reinstatement and discrimination matters from the personnel
records of Bates and Albu.
IT IS FURTHER ORDERED that Chicopee Coal Company tender to Bates and Albu
the agreed upon lump sum payments no later than thirty (30) days from the date of this decision.
Upon timely compliance with the terms of the settlement agreements, the discrimination
proceedings in Docket Nos. WEVA 99-121-D and WEVA 99-122-D ARE DISMISSED.

~-4:::1~:-----

~-:;d

Feldman

Administrative Law Judge

1

As part of their settlement, Chicopee has agreed to pay a civil penalty of$300.00 in
satisfaction of Albu's alleged discriminatory discharge. Pursuant to Commission Rule 44(b),
29 C.F.R. § 2700.44(b), to impose this $300.00 penalty, the Secretary must file with this
Commission, within 45 days, a pertinent petition for assessment of civil penalty.

1261

Distribution:
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Room 516, Arlington, VA 22203 (Certified Mail)
Forrest H. Roles, Esq., Mark E. Heath, Esq., Heenan, Althen & Roles, P.O. Box 2549,
Charleston, WV 25329-2549 (Certified Mail)
/rnh

1262

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

November 26, 1998
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 98-290
A.C. No. 42-02095-03517

V.

Bear Canyon #2

C.W. MINING COMPANY,
Respondent
DECISION
Appearances:

Ann M. Noble, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of civil penalties under sections
105(d) and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the
"Mine Act." The Secretary of Labor, on behalf of the Mine Safety and Health Administration,
(MSHA), charges C.W. Mining Company (C.W.) with the violation of the mandatory safety
standard 30 C.F.R. § 75.220(a)(l) which requires each operator to develop and follow a roof
control plan approved by the MSHA District Manager. The Respondent asserts that there was no
violation of their approved roof control plan and presented evidence that it developed a roof
control plan that was approved by the MSHA district manager, that it followed that plan at all
relevant times and furthermore, the alleged violation was not related to the fatal accident of
August 24, 1997. That accident gave rise to an MSHA investigation. Twenty-one days thereafter
Inspector Jerry 0.D. Lemon issued the citation charging C.W. with a violation of its roof-control
plan.

THE ACCIDENT
The fatal accident of August 24, 1997, at the Bear Canyon No. 2 mine was the direct
result of a slip and fall under or in front of the path of a moving Joy shuttle car. The victim was a
45-year old continuous mining machine helper who was attempting to move quickly past the
1263

moving shuttle car. As a result of the slip and fall in the path of the moving shuttle car he was run
over, sustaining fatal crushing injuries.

STIPULATIONS
1. Bear Canyon No. 2 is an underground coal mine located nine miles northwest of
Huntington, Emery County, Utah, and its mining operations affect interstate commerce.
2. The mine is owned and operated by C.W. (Co-op Mine), MSHA l.D. No. 42-2095.
3. Bear Canyon No. 2 mine is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. ("the Act").
4. The Administrative Law Judge has jurisdiction in this matter.
5. The subject 104(d)(l) Order No. 4890930 was properly served by a duly authorized
representative of the Secretary upon an agent of respondent on the date and place stated therein,
and may be admitted into evidence for the purpose of establishing its issuance, and not for the
truthfulness or relevancy of any statements asserted therein.

6. The exhibits to be offered by Respondent and the Secretary are stipulated to be
authentic but no stipulation is made as to their relevance or the truth of the matters asserted
therein.
7. The operator demonstrated good faith in abating the violation.
8. C.W. Mining Co. is a coal mine operator with 570,060 production tons or hours
worked in 1997.

ISSUES
The primary issues are whether or not C.W. violated its roof-control plan as alleged in
Citation/Order Number 4890930 and, if it did, should the S&S and unwarrantable failure
designations be upheld and the appropriate penalty to be assessed considering the criteria in
§ 11 O(i) of the Mine Act.

FINDINGS AND CONCLUSIONS
Having considered the hearing evidence and the record as a whole, I find that a
preponderance of the substantial, reliable and probative evidence establishes the Findings of Facts,
Conclusions and Further Findings in the Discussion below:

1264

1. Bear Canyon #2 is an underground coal mine, located in Emery County, Utah, and is
owned and operated by C.W. (Co-op Mine). The operator is engaged in the mining of
underground coal in the Bear Canyon Mine.
2. The mine has one active development and one active retreat pillar working sections,
both of which use remote-controlled Joy 14CM15 continuous mining machines, Joy shuttle cars,
Lee Norse TD-142 single-boom roof-bolting machines, and a Fletcher DDR-13-B-CW doubleboom roof-bolting machine to install supplemental supports. In the area of the accident, main
entries had been previously developed and room and pillar retreat mining methods were being
utilized.
3. The mine employs 44 underground miners and 27 surface employees, and has a daily
production of approximately 982 tons of coal. The mine works two nine hour production shifts
and one nine hour overlapping maintenance shift each day, seven days per week.
4. On August 24, 1997, at the Bear Canyon No. 2 mine, a miner, employed by C.W.
sustained fatal injuries when he fell under or in front of the path of a moving shuttle car.
5. The roof-control plan at the time of the accident shows by diagram the typical pillar
extraction sequence in which two adjacent pillars are split vertically in tandem with the splits
parallel to each other. The plan expressly provides in writing that stress conditions may require
temporary "variations from sequence shown" in the diagrams.
6. The Order/Citation No. 4890930 charges C.W. with violating its roof-control plan in
two specific respects (1) it split Pillar No. 6 perpendicular to Pillar No. 5 and (2) it split Pillar No.
6 all the way through before Pillar No. 5 was fully mined.
7. The roof-control plan does not define the gob area and does not use or even mention
the term "gob."

8. The 2A cut of Pillar No. 6 that split Pillar No. 6 all the way through was made to
relieve the stress that was causing hazardous bouncing in the Pillar 5 and 6 area where ~e miners
were working.
9. After splitting Pillar No. 6 all the way through to relieve the stress causing the
hazardous bouncing, the crew made cuts 3, 4, 5, 6 and 7 in Pillar No. 5 in the proper sequence
called for in the approved roof-control plan.

10. The August 24, 1997, cave of the roof in fully mined-out area consisting of what was
Pillars No. 3, 4 and the left half of Pillar No. 5 was not a premature cave. It was a planned,
hoped-for, anticipated cave that went no further on the 24'h of August than planned. The roof did
not cave in the split off right half of Pillar No. 5 where Cyril Jackson, the operator of the remotecontrolled miner, and his helper Samuel Jenkins were working.
1265

11. The preponderance of the evidence presented fails to establish that in making cuts 6
and 7 in Pillar No. 5, the miners entered the gob or that they violated any provision in the mine's
approved roof-control plan.

DISCUSSION AND FURTHER FINDINGS
C.W. 's roof-control plan at the relevant time (Pet. 's Ex. 4) shows the typical pillar
extraction sequence. This typical extraction sequence is not spelled out in words but appears in
the diagram sequence shown on page 16 of Petitioner's Ex. 4. It shows two adjacent pillars with
splits parallel to each other. In addition, however, the plan specifically spells out in words that
"stress conditions may require temporary variations from the sequence shown." (Emphasis
added). (Tr. 127-128).
C.W. presented credible evidence that it split Pillar No. 6 perpendicular to the split in
Pillar No. 5 because of certain geologic features in the roof of the No. 6 entry which extended
into Pillar No. 6, that would subject the miners who would be working in the split to the hazard of
being injured by the falling of the immediate roof if they split Pillar No. 6 parallel to the split in
Pillar No. 5. There was no contrary evidence.
Before Pillar No. 6 was split, it was examined by C.W. personnel to determine the safest
way to split Pillar No. 6. They observed roof fractures in the roof of entry No. 6 which continued
through to Pillar No. 6. These roof fractures were nearly parallel to the split in Pillar No. 5.
C.W. personnel knew from past experience in the mine that if the pillar is split in the same
direction as the roof fractures, the immediate roof above the split between the fractures becomes
unstable and falls out. Thus it creates a hazard of the immediate roof falling and injuring the
miners working below within the split, even though the roof is properly bolted. (Tr. 278, 488).
Consequently to avoid this danger to the miners working in the split, C.W. split Pillar No. 6
perpendicular to the roof fracture lines and thus perpendicular to the split in Pillar No. 5. They
believed they were splitting Pillar No. 6 in the safest way for the safety of the miners and were
following the requirements of the roof-control plan and the provision of§ 75.220(a)(l) which
requires additional measures if unusual hazards are encountered.
In the citation, Inspector Jerry O.D. Lemon charges C.W. with violating its roof-control
plan in two specific respects: (I) it split Pillar No. 6 perpendicular to the split in Pillar No. 5 and
(2) it split Pillar No. 6 all the way through before Pillar No. 5 was fully mined. C. W. concedes
that it did (I) and (2) but assert that did not constitute a violation of its roof-control plan under
the facts and circumstances of this case.
C.W. presented credible evidence that if Pillar No. 6 were split parallel to the roof
fractures that were observed going into Pillar No. 6, the coal underneath that was supporting the
fractured coal would be removed. C.W. personnel, from past experience, knew this removal of
support under the fractured area would create a hazardous condition that would allow the

1266

immediate roof above the split between the fractures to fall out on the miners who would be
working below on the floor of the split.
Inspector Lemon who issued the citation testified that, because of the hazardous bounce
problem C.W. was having, the 2A cut that split Pillar No. 6 all the way through was not a
violation of the plan. That cut through Pillar No. 6 relieved the stress that was causing the
bouncing, but after splitting Pillar No. 6 all the way through the miners should not have gone into
the area where the 6 and 7 cuts of Pillar No. 5 were made because cutting all the way through
Pillar No. 6 made those cuts part of the gob. Respondent's witness vigorously denied that cutting
through Pillar No. 6 made the 6 and 7 cut area of Pillar No. 5 part of the gob and presented
credible evidence to that effect.
After Pillar No. 6 was split all the way through perpendicular to the split in Pillar No. 5,
the remote-control miner was used to make cuts 3, 4, 5, 6 and 7 in Pillar No. 5 in the sequence
called for by the approved roof-control plan.
I credit the testimony of Cyril Jackson, first called as a witness by the Secretary and later
by Respondent. He was the operator of the miner (machine) on the afternoon shift of August 24,
1997, and had just completed cuts No. 6 and 7 in the right half of Pillar No. 5. As he started to
back the miner out of cut No. 7 in the right half of Pillar No. 5, the planned and hoped-for cave
of the roof in the gob area (that at that time consisted of the mined out Pillar No. 3, No. 4 and
the split-off left half of Pillar No. 5 that was adjacent to Pillar No. 4 area) began to cave. Messrs.
Jackson and Jenkins knew the anticipated cave was occurring because they felt the blast of air
caused by the caving roof pushing the air out of the gob space as the roof in the mined out Pillars
No. 3, 4 and left half of 5 caved. Mr. Jackson testified that there was nothing unusual about the
cave; that it did not cave prematurely; that it caved just where they planned, hoped and expected
it would cave. It did not cave in the area where he and Samuel Jenkins were working. The splitoff right half of Pillar No. 5 did not cave at all. (Tr. 410).
Mr. Jackson testified he and Mr. Jenkins ran outby when they felt the blast of air caused
by the cave-in because that was the prudent thing to do. All miners in the pillar section exit outby
quickly when the planned, anticipated, hoped-for cave occurs because of the remote possibility
that any cave may go farther than planned or anticipated. 1 If Messrs. Jackson and Jenkins just
stayed where they were when they first felt the air blast from the hoped-for cave they would not
have been hurt and, of course, the fatal accident would not have occurred.

1

Witness called by the Secretary, as well as Respondent, testified that when any planned,
anticipated cave occurs, all miners in the pillar section run outby as it is the prudent thing to do.
Bruce Andrews, the MSHA coal mine inspector, who was one of the two persons selected by
MSHA to make the investigation of the accident and to write the accident report, te~tified it is
typical among all miners in the-pillar section to run when they feel that air blast that tells them the
planned cave is occurring. He testified they run outby using the fastest, safest exit route. Its the
prudent thing to do because of the possibility of any cave going farther than planned or expected.
1267

At the hearing Jerry 0.D. Lemon, the inspector who made the investigation, wrote and
issued the citation, acknowledged that C.W. did not violate its roof plan in splitting Pillar No. 6
perpendicular to the split in Pillar No. 5 nor in splitting Pillar No. 6 all the way through before
Pillar No. 5 was fully mined. Inspector Lemon testified that the violation consisted of the miners'
going into the area of cut 6 and 7 of Pillar No. 5 after splitting Pillar No. 6 all the way through.
This was based upon Mr. Lemon's belief that splitting Pillar No. 6 all the way through
perpendicular to the split in Pillar No. 5 made the area at cuts 6 and 7 of Pillar No. 5 a part of the
gob. Inspector Bruce Andrews testified to the same effect, namely, that the violation in this case
consisted of making cuts 6 and 7 of Pillar No. 5 after splitting Pillar No. 6 all the way through.
(Tr. 76).
In addition to the testimony of Cyril Jackson, I credit the testimony of Kenneth H. Defa,
the mine superintendent, and Charles Reynolds, the mining engineer.
Kenneth H. Defa, mine superintendent for C.W. has worked underground in the mine for
30 years and has held about every position in the mine. He has been involved in making decisions as to which way to pull a pillar for 20 years. He has pulled thousands of pillars and has been
"real successful" in pulling pillars without an accident. Other mine operators have sent their
persolUlel over to observe how he pulls pillars in the Bear Canyon mine. He has participated in
developing the roof-control plans that were in effect during the time that he was pulling pillars at
Co-op Mine and for C.W.
Mr. Defa testified that he had a discussion with Lee Smith who was in charge of roof
control in the Denver office in 1989. At that time the mine's roof-control plan depicted step by
step, several different ways pillars could be pulled. This made the plans fairly bulky, cumbersome
and hard to follow. At the time of their discussion Lee Smith told him "people know that when
you're pulling pillars, things are going to change from pillar to pillar, from day to day and that all
that stuff was not necessary. And, he asked that we condense the plans down as small as we
could possibly make it, and still understand what the methods were."
Mr. Defa did not believe that any of the modifications of the roof plan after 1989, which
the mine developed and the District Manager approved, prohibited him from making the split in
adjacent pillars perpendicular to each other when faced with geologic conditions that make it
hazardous to split a pillar parallel to the split in the adjacent pillar. Mr. Defa continued to do this
when he believed he was required to do so for the safety of the miners. There was no indication
from anyone to him that the plan, even under the latest modification of April 1997, did not permit
him to do so. A number of the inspectors have observed him pulling pillars in the sequence and
procedures the mine used in pulling Pillars No. 5 and 6 in August 1997, and none have ever
indicated to him he shouldn't or couldn't do so, under any of the amendments that have been
made to the mine's roof control plan. Mr. Defa is of the opinion that splitting Pillar No. 6
perpendicular to the split in Pillar No. 5 does not make the area of cuts 6 and 7 of the No. 5 pillar
part of the gob. In all his many years of underground mining experience, he has never heard the

1268

gob described by anyone in a way that would, under the circumstances we have in this case, make
the area of the cuts 6 and 7 of Pillar No. 5 part of the gob.2
Mr. Defa testified that the cave of the gob area on August 24, 1997, did not travel any
further than planned, expected or anticipated.
Mr. Jackson testified that when he and Mr. Jenkins felt the blast of the wind from the
hoped-for cave of the gob area and started exiting outby, no material had fallen in the area of the
right half of Pillar No. 5 and, in particular, no material had fallen on the miner. (Tr. 407). He was
positive it was not going to cave on the right half of Pillar No. 5 because neither the timbers in the
split of No. 6 pillar nor the tum row timber which they had set up was taking any weight. Also
the double tum-row timbers in Entry 6 and crosscut 16 were not taking weight. It did not "cave
anywhere differently'' than where he 'hoped' it would cave. There was no cave in the right half of
Pillar No. 5 at all.
· Mr. Jackson testified that about 40 minutes after the fatal accident, he again entered the
right half of Pillar No. 5 where he and Mr. Jenkins had been working "to see if anything changed."
The only change he noticed was that a little bit of rock had rolled out of the gob by the miner and
a little bit on the cutter head drum. The roof had not caved at all where he took cuts No.6 and 7
from Pillar No. 5. The next morning he went to that area again and noticed some rock that had
fallen on the miner since he last saw the miner the day before. Credible evidence was presented
that it was not unusual for a period of time up to 16 to 24 hours after a cave for there to be
changes such as additional top rock falling without any new mining being done. This is due to the
fact that previous mining activity continues to work on the pillar after a cave. None of the mine
inspectors who testified saw the area in question until the day after the planned cave of the gob
area (consisting of what was Pillars No. 3, 4 and left half of Pillar No. 5) occurred.

2

See American Geological Institute, Dictionary ofMining, Mineral, and Related Terms
239 (2d ed. 1997) defining gob as follows:
gob (a) A common term for goaf. (Fay, 1920) (b) To leave coal and other
minerals that are not marketable in the mine. (Fay, 1920) (c) To stow or pack
any useless underground roadway with rubbish. (Fay, 1920) (d) To store
underground, as along one side of a working place, the rock and refuse
encountered in mining. (Hudson, 1932) (e) The space left by the extraction of a
coal seam into which waste is packed or the immediate roof caves. (CTD, 1958)
(f) A pile of loose waste in a mine, or backfill waste packed in slopes to support
the roof. (Ballard, 1955) (g) Coal refuse left on the mine floor. (Kerson, 1938)
(h) The material so packed or stored underground. (Hudson, 1932) (i) To fill with
goaf or gob; to choke, as a furnace as gobbed or gobs up. See also gobbing.
(Webster 2nd, 1960)
1269

Charles Reynolds has been the mining engineer and environmental coordinator for C.W.
since 1995. He graduated from the University of Utah College of Mines_and Earth Sciences in
1991 with a bachelor's degree in mining engineering and has a professional engineer license from
the State of Utah since 1987. He worked from 1991 to 1995 for Magnum Engineering
Consultants as a mining engineer. (Tr. 473-475). He did consulting work for the Bear Canyon
and other mines including roof design and control and is an active member of the Utah Mining
Association of Engineers and has taken a course at NIOSH on roof-control analysis and roof
stability. He has become competent in the use of three computer modeling programs which help
evaluate pillar stability and roof control. He has customized the program to the Bear Canyon
Mine. He has taken a course given by NIOSH on roof-control analysis and stability. He also
took a course on bleeder and gob evaluation.
Mr. Reynolds is familiar with the roof-control plan in effect at the time of the August 1997
accident. He helped "in putting" that plan together. He testified that if Pillar No. 6 had been split
parallel to the split in Pillar No. 5, "You would be taking a chance of having some immediate
roof, the top two to four feet, fall out in the area where the men would be working." (Tr. 489).
In his opinion, splitting Pillar No. 6 perpendicular to the split in Pillar No. 5 has no effect on
inducing the cave in the mined-out area of Pillars No. 3, 4 and the left half of 5.
Mr. Reynolds testified that splitting Pillar No. 6 all the way through, perpendicular to the
previous split in Pillar No. 5 and then mining the left half of Pillar No. 5 did not change the gob
line. It did not extend the gob line into the right half of Pillar No. 5. Never in his experience,
education or training has he ever heard of the gob defined in a way that under the facts of this
case make cuts 6 and 7 in the right half of Pillar No. 5 a part of the gob.
Mr. Reynolds helped the inspectors with the investigation of the accident and he never
heard any of them say there was anything wrong with taking cuts no. 6 and 7 from Pillar No. 5
after splitting Pillar No. 6 all the way through. At the end of his direct examination the last
question and the answer given by Mr. Reynolds was as follows:

Q. In your opinion, having helped to author the roof control plan
and being familiar with the conditions that were there at the
time, did splitting Number 6 through and then mining the right
half of Pillar Number 5 violate the provisions of the roof
control plan?
A. No, it didn't.

1270

CONCLUSION
The parties presented conflicting evidence as to what was the best and safest mining
practice and procedure when a pillar adjacent to a pillar split vertically, must, for valid safety
reasons, be split perpendicular to the split in that adjacent pillar. It is not for me to decide in this
case what is the best or safest mining procedure to be following under the facts of this case. I
only find and conclude that on the basis of the evidence presented in this case that a
preponderance of the evidence of record fails to establish that Respondent violated its roofcontrol plan on August 24, 1997, as charged in Citation No. 4890930. The citation is
VAC~TED and this proceeding is DISMISSED.

Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)
Carl E. Kingston, Esq., 3212 South State Street, P.O. Box 15809, Salt Lake City, UT 84115
(Certified Mail)

/sh

1271

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

November 29, 1999
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Docket No. KENT 99-134
A. C. No. 15-17979-03510
No. 6Mine

DAGS BRANCH COAL CO., INC.
Respondent

DECISION
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., Lexington, Kentucky,
for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor, acting through her Mine Safety and Health Administration (MSHA), against Dags
Branch Coal Company, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815. The petition alleges three violations of the Secretary's mandatory
health and safety standards and seeks a penalty of$6,173.00. A hearing was held in Pikesville,
Kentucky. For the reasons set forth below, I affirm the citations and order and assess a penalty of
$6,173.00.
During the trial, counsel for the Respondent announced that the company was
withdrawing its contest of Citation No. 9982163, involving respirable dust samples, and would
pay the civil penalty sought by MSHA. (Tr. 129.) As the Secretary had no objection to that
disposition, it was accepted. (Id.) The penalty will be assessed at the end of this decision.

Background
The No. 6 mine is an underground coal mine, owned and operated by Dags Branch Coal
Co. in Pike County, Kentucky. On September 23, 1998, MSHA Ventilation Specialist and Coal

1272

Mine Inspector Thomas M. Charles was sent to the mine to conduct a health and safety
inspection, including reviewing the mine's bleeder system. 1
Inspection of the bleeder system was included because "second mining" or "pillaring" was
being performed in the mine. "Second mining" or "pillaring" occurs when miners retreat out of a
section of the mine in which advanced mining has ceased, removing the remaining pillars as they
go. As a result, the roof of the mine collapses as the pillars are removed and the area becomes
known as "gob" area. The bleeder system is designed to sweep the gob area with air and prevent
accumulations of methane or other noxious gases.
On arriving at the mine, Charles was informed by James Miller, the section foreman, that
the bleeder system was blocked with water. Charles and Miller then went underground to the
working section where the section crew was removing its equipment from the pillar line after
having finished mining a pillar. At this time, Charles checked the seven entries on the section for
airflow. He concluded that air was flowing from the gob onto the active section from entries one,
· two and three.
As a consequence of this test, Charles issued Citation No. 4515035, alleging a violation of
section 75.334 of the Secretary's health and safety standards, 30 C.F.R. § 75.334,2 because:
Air from pillared works is passing onto the active 001-0
MMU.3 Pillar recovery work is being conducted on the 001-0
MMU without an operative bleeder system. This allows air which
has passed through the gob area to travel back onto the active
working section. The top end of the gob area of the 001-0 MMU is
cut-through into an adjacent panel to provide ventilation of the gob
area, and to allow air to flow away from the active workings.
There is an E.P. 4 at that location. According to statements made by
the foreman and crew, this E.P. and top end of the adjacent panel
1

"A bleeder system is an airway that's provided to be maintained open so that you can
have airflow within it to sweep the area to keep it free from accumulations of methane and
blackdamp, anything that could accumulate in it." (Tr. 21.)
2

Inspector Charles testified that the specific part of section 75.334 that he found Dags
Branch to have violated was section 75.334(b)(l), 30 C.F.R. § 75.334(b)(l). (Tr. 20.) That
section requires that: "During pillar recovery a bleeder system shall be used to control the air
passing through the area and to continuously dilute and move methane-air mixtures and other
gases, dusts, and fumes from the worked-out area away from active workings and into a return air
course or to the surface of the mine."
3

Mechanized Mining Unit.

4

Evaluation Point.
1273

were found to be blocked by water last night on the 2nd shift.
Mining operations were performed today. Air was found passing
from the gob back onto the section via entries number one, two and
three.
(Govt. Ex. 2.)
Inspector Charles traveled up the adjacent panel to the area of the evaluation point, where
he encountered water. Based on his inspection in this area, he issued Order No. 4515036, for a
violation of section 75.370(a)(l), 30 C.F.R. § 75.270(a)(l). 5 The order states:
The approved ventilation plan which shows a description of
the bleeder system to be used at this mine and requires that bleeder
entries be maintained free from obstructions such as roof falls or
water[] is not being complied with in the 001-0 active bleeder
panel. Water accumulation, roofed, has blocked air flow from the
top end of the panel. Travel to the evaluation point is blocked by
water in the number one mains at survey station #146. According
to statements made by James Miller[,] Foreman. [Sic.] This was
found by the 2nd shift foreman last night. Coal was produced on the
001-0 pillaring section today.
(Govt. Ex. 4.)
Findings of Fact and Conclusions of Law
In its brief, the company concedes that both of these violations occurred and that they
were "significant and substantial."6 The Respondent argues, however, that neither of the
violations was "unwarrantable." Based on the operator's concession, and the evidence presented
at the hearing, I conclude that Dags Branch violated sections 75.334(b)(l) and 75.370(a)(l), as
alleged, and that the violations were "significant and substantial." Contrary to the company's

5

Section 75.370(a)(l) requires, in pertinent part, that: ''The operator shall develop and
follow a ventilation plan approved by the district manager. The Plan shall be designed to control
methane and respirable dust and shall be suitable to the conditions and mining system at the
mine."
6

A "significant and substantial" (S&S) violation is described in Section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
1274

position, I also conclude that the violations were the result of its unwarrantable failure to comply
with the regulations.

Unwarrantable Failure
The Commission has held that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence by a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004(December1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). "Unwarrantable failure is characterized by such conduct
as 'reckless disregard,' 'intentional misconduct,' 'indifference' or a 'serious lack of reasonable
care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94
(February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994); see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (71h Cir. 1995) (approving Commission's
unwarrantable failure test).
The Commission has established several factors as being determinative of whether a
violation is unwarrantable:
[T]he extent of a violative condition, the length of time it has
existed, whether the violation is obvious, or poses a high degree of
danger, whether the operator has been placed on notice that greater
efforts are necessary for compliance, and the operator's efforts in
abating the violative condition. Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705,
709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July
1984); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.
1992); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July
1992). The Commission has also examined the operator's
knowledge of the existence of the dangerous condition. E.g.,
Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug.
1994) (affirming unwarrantable failure determination where
operator aware of brake malfunction failed to remedy problem);
Warren Steen, 14 FMSHRC at 1126-27 (knowledge ofhazard and
failure to take adequate precautionary measures support
unwarrantable determination).

Cyprus Emerald Resources Corp., 20 FMSHRC 790, 813 (August 1998). In this case, the
operator knew of the violations and deliberately chose to mine coal rather than attend to the
violations.
The inspector testified that he found these violations to be unwarrantable because the
mine's management was aware of the conditions and elected to mine coal before correcting them.
He related that the foreman, Miller, "indicated to me that he was aware that the gob air had been
1275

passing back onto the section due to the bleeder system being blocked and that they had been
instructed to go ahead and mine the blocks." (Tr. 32.) Inspector Charles further described a
conversation that he had with Linton Griffith, a fifty percent owner of the mine, about the
conditions in the mine; i.e. the water in the gob and his knowledge of that water in the section that
was mining coal. He said that Griffith " told me that the mine had been down for two or three
shifts on a stacker belt thrower, that they had to mine coal and that they needed to get those
blocks mined so that they could move the section." (Tr. 33.)
The Respondent argues that the violations were not unwarrantable because, with respect
to Citation No. 4515035, the inspector was not present in the mine while mining was actually
being performed. The operator maintains that air was moving through the gob area to the return
air course at that time. Concerning Citation No. 4515036, it is the company's position that
because there is no evidence that the water in the mine actually reached the roof, a finding of
unwarrantable failure is not appropriate. Neither contention is persuasive.
Inspector Charles testified that there was a large stream of coal coming off of the belt
when he arrived at the mine and that coal was being mined as he was going to the working
section, but that mining had ceased by the time he arrived at the section. Thus, mining had only
been stopped for a short time when he found air coming out of the gob onto the area where work
had recently been ongoing. It was his opinion that the air would have had to have been flowing
the same way while coal was being mined "[b]ecause of the way the ventilation controls were
installed and in order for them to maintain airflow for the mine, period." (Tr. 121.)
To counter this evidence, the Respondent relies on the equivocal assertion of Miller that
he was taking continuous air readings "in the area" while the pillars were being mined and no
return air was coming out of the gob onto the section. (Tr. 140.) To explain the inspector's
findings, which neither he nor anyone else disputes, Miller speculated that damage to a ventilation
curtain could have occurred when the equipment was being moved out of the section.
There is less to these professions than meets the eye. Miller did not testify that he took
readings in the three entries where the air was flowing from the gob to the section. No one
testified that moving the equipment did, in fact, damage any ventilation controls. Furthermore,
since the equipment was being pulled out of the section, no one explained how it could have
damaged a curtain located in the opposite direction from which the equipment was being moved;
how curtains in three entries could have been damaged at the same time, all in the time between
the cessation of mining and Charles' arrival; or, ifthe curtains were not damaged at the same time,
how no mining occurred while any one of them was damaged.
Turning to the order, there is no direct evidence as to whether the water in the mine
reached the roof or not. Neither the inspector nor Miller traveled through the water to observe its
level. Inspector Charles testified that the water must have reached the roof because he could not
detect any movement of air in any of the seven entries of No. 1 mains where the toe of the water
was encountered. Miller agreed that Charles did not detect any air movement in most of the
entries, but stated that Charles did detect movement in the No. 1 entry.
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The inspector also testified that the company had removed parts of stoppings in two areas
of the No. 1 mains which changed the air flow in the mine in violation of the mine's ventilation
control plan. Miller did not dispute this but claimed that he thought the removal of the stoppings
was permitted.
I find the inspector's testimony to be credible on these issues. While I find that
circumstantial evidence supports a finding that the water was in contact with the roof someplace
in the mine, such a finding is not necessary in view of the uncontroverted evidence that the
bleeder entries had not been maintained free of water for at least 24 hours after it was discovered,
that travel to the evaluation point was blocked by water, and that the stoppings had been partially
removed, all of which violated the ventilation plan.
In accepting the testimony of Inspector Charles over that of Miller and Griffith, I find it
very significant that neither Miller, on whom both the order and citation were served, nor Griffith
protested to the inspector, or apparently to anyone from MSHA, that air was not flowing from the
gob onto the working section while coal was being mined, that moving the equipment must have
damaged the ventilation curtains or that the water did not block any air flow. Miller said he did
not say anything because he lets the owners take care of violations. Griffith testified that he was
concerned about the characterization of the violations as unwarrantable, but did not explain why
he did not present any factual defense.
Furthermore, I find it determinative that neither Miller, nor Griffith, nor the company in its
brief, denied that they had decided to finish mining the pillars before taking care of the problems
caused by the water. Griffith, when specifically asked whether he had ordered the completion of
mining before taking care of the water, stated: "I'm saying I have never told in my lifetime a mine
foreman to do something that would endanger men." (Tr. 192.) When read carefully, it is
apparent that this is not a denial that he ordered the mining to be completed.
I find that the operator intentionally chose to finish the pillaring of the section before
taking care of the water problem, which it had been aware of since the second shift the night
before. Accordingly, I conclude that both of these violations were the result of the company's
unwarrantable failure to comply with the regulations. See, e.g., Lion Mining Co., 19 FMSHRC
1774, 1778 (November 1997); Jim Walter Resources, Inc., 19 FMSHRC 1761, 1770 (November
1997); Midwest Material Co., 19 FMSHRC 30, 35(January1997).
Civil Penalty Assessment

The Secretary has proposed penalties of$3,000.00 each for Order No. 4515036 and
Citation No. 4515035 and $173.00 for Citation No. 9982163. However, it is the judge's
independent responsibility to determine the appropriate amount of penalty in accordance with the
six penalty criteria set out in section 1lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg Stone Co.
v. FMSHRC, 736 F.2d 1147, 1151 (71h Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481,
483-84 (April 1996).

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In connection with the penalty criteria, the parties have stipulated that Dags Branch is a
small-to-medium-size operator and that the civil penalties in this proceeding will not affect the
operator's ability to continue in business. (Govt. Ex. 1.) The evidence also indicates that for the
two years prior to these violations, the company had received 180 citations. (Govt. Ex. 10.)
From this I conclude that the operator's violation history is average. I further conclude that the
Respondent demonstrated good faith in attempting to achieve rapid compliance after notification
of the violations. Finally, I conclude that the gravity of these violations was fairly serious and that
the company's negligence with respect to Order No. 4515036 and Citation No. 4515035 was high
and with respect to Citation No. 9982163 it was moderate.
· Taking all of this into consideration, I conclude that the penalties proposed by the
Secretary are appropriate. Accordingly, I will assess penalties of $3,000.00 for Order No.
4515036, $3,000.00 for Citation No. 4515035, and $173.00 for Citation No. 9982163.

Order
Order No. 4515036 and Citation Nos. 4515035 and 9982163 are AFFIRMED. Dags
Branch Coal Company, Inc., is ORDERED TO PAY a civil penalty of $6,173.00 within 30 days
of the date of this decision.

~~lffA

Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 841 Corporate Drive, Suite 101,
Lexington, KY 40503 (Certified Mail)

/nj

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