FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 4, 2013

DECISION

Appearances:   For the Secretary: J. Malia Lawson, Esq., Nashville, TN

                        For the Respondent: Melanie J. Kilpatrick, Esq., Lexington, KY

Before:            Judge Tureck

            These cases are before me on two Petitions for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Clintwood Elkhorn Mining Company, Inc. (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”). Both were issued on March 8, 2011. One was docketed as KENT 2011-546. It alleges two violations of the Mine Act addressed in an order and a citation, and assessed a total penalty of $5654. The second was docketed as KENT 2011-547. It concerns a single citation and assessed a penalty of $162. Respondent contends that the order and both citations should be vacated.  On motion by the parties, the two cases were consolidated for hearing and decision. A formal hearing was held in Pikeville, Kentucky on March 13 and 14, 2012. At the hearing, Secretary’s Exhibits 1-9, 14 and 16-25, and Respondent’s Exhibits 2, 3, 5, 6, 11 and 13 were admitted into evidence, and each party provided testamentary evidence. Both parties then filed post-hearing briefs, the last of which was received on June 6, 2012. Then on June 25^th, Respondent filed both a response brief and a motion to strike footnote 5 of the Secretary’s post-hearing brief. The Secretary responded to the motion to strike on July 13, 2012.

            Respondent’s motion to strike footnote 5 of the Secretary’s brief is granted. That footnote contains a discussion of four exhibits which were excluded from evidence at the hearing. Accordingly, they are not part of the record, and this footnote is clearly improper. As I stated in another case where the Secretary cited excluded evidence in a post-hearing brief, “it seems like a back-handed attempt to get around evidentiary rulings that did not go the Secretary’s way. The proper action for counsel to have taken would have been to file a post-hearing motion for reconsideration of the evidentiary rulings made at the hearing.” Premier Elkhorn Coal Co., KENT 2011-827, slip op. at 2 (Jan. 22, 2013).

                                    Findings of Fact and Conclusions of Law

            Hubble No. 6 Mine (“Hubble 6") is a drift coal mine located in Pike County, Kentucky. It is a five-day, single shift mine employing about 12 miners on the shift. TR 280, 292. It is operated by Hubble Mining Company (“Hubble”) under contract with the Respondent, which leases the mineral rights for the mine from the mineral rights owner, Big Sandy Mineral Company. (TR 278-79, 358). In addition to leasing the mineral rights and contracting with Hubble to operate the mine, Respondent is an independent contractor providing engineering services to Hubble. John George Blackburn is the Manager of Contract Mines for Respondent. TR 317.

            On November 2, 2010, MSHA mine inspector Craig Plumley conducted an inspection of the Hubble No. 6 mine. He was accompanied by the Acting Assistant District Manager, David Isom, and two ventilation specialists, Kenneth Fletcher and Barry Johnson. TR 24. When they arrived at the mine, they met with Harold Akers, the owner of Hubble. Then Plumley and Isom reviewed the wall map of Hubble 6 prepared as required by 30 C.F.R. §75.1200 (hereinafter “1200 Map”). SX 7; TR 27. It was dated October 22, 2010, and showed the active works at the mine. TR 26-27. Hubble 6 is identified on the map as Big Sandy Mineral Lease 63017. Adjacent to Hubble 6, and part of the same mine seam, is the Blackhawk Mine, indicated on the map as Big Sandy Mineral. Mining in the Blackhawk Mine ended in 1996. TR 27-28.

            Plumley and Isom saw that borehole drilling had been done in Hubble 6. TR 25. In discussions with Akers and Blackburn, Plumley found out that there had been water seeping into Hubble 6 from the direction of the Blackhawk Mine. TR 31-32; see also TR 332-33. Blackburn testified that although they had the final maps for the Blackhawk Mine when preparing the maps for Hubble 6, they wanted to make sure that the hydrostatic barrier was in place, and the workings at the Blackhawk Mine were not closer to Hubble 6 than they believed. TR 332-33. There was no requirement that Clintwood Elkhorn do the borehole drilling (TR 31, 333); it only would have been required if mining was going to be undertaken within the 200-foot test drill line. See §75.388(a). Respondent hired Target Drilling to do the borehole drilling. TR 333. Target drilled three horizontal boreholes. The first, Borehole #1, did not encounter any voids. TR 336. The second, Borehole #2, intercepted a void on September 30, 2010, after drilling over 1900 feet. TR 347. After the void was intercepted, a third borehole, Borehole #3, was drilled. The drilling of Borehole #3 started on or about October 4, 2010, and was completed before the 1200 Map was prepared. But Target had not yet provided Respondent with a certified map, so Borehole #3 was described as “proposed” on the 1200 Map. TR 352. Borehole #3 did not encounter a void. TR 347.

Citation 8226822

            At the conclusion of his inspection, Plumley issued Citation 8226822. SX 2. This citation alleges that respondent violated 30 C.F.R. §75.1200. This standard requires mine operators to have “an accurate and up-to-date map of [the] mine” which shows, inter alia, “[a]djacent mine workings within 1,000 feet[.]” The citation alleges that “[t]he operator failed to provide an accurate mine map depicting the abandoned adjacent mine works, identified as Blackhawk Mining Co.” The basis of the Secretary’s position is that maps of the Blackhawk Mine, which Respondent relied on in preparing the 1200 Map, did not show the full extent of the mining conducted at the Blackhawk Mine. Much of the dispute centers around whether mine maps showing the extent of mine workings with open ends () rather than closed ends (⊐) can signify that no further mining was done beyond the open ends. Apparently, there are no regulations under the Mine Act governing how to signify the extent of mine workings on 1200 maps. So the Secretary presented its witnesses, who testified that open ended workings signify that additional mining may have occurred; and Respondent presented its witnesses, who testified that open-ended workings may indicate the full extent of the mining undertaken.

            However, this dispute does not have to be resolved in the abstract. For the mining engineer who certified the final Blackhawk Mine map (RX 3), Phillip Willis, testified at the hearing. Willis currently is Respondent’s Chief Engineer. TR 234. But on February 28, 1996, he was employed by the Wellmore Division of United Coal Company, for whom he started working in 1987. TR 236. Wellmore Coal operated the Blackhawk Mine, and the Engineering Department of Wellmore was responsible for creating the maps of the Blackhawk Mine. TR 237. While working for Wellmore’s Engineering Department, Willis became familiar with how the company created mine maps, and ultimately he became the engineer responsible for certifying the Blackhawk Mine’s maps. TR 238.

            Willis testified that no mining was done at Blackhawk Mine subsequent to February 28, 1996, and that Respondent’s Exhibit 3, the final map dated February 28, 1996, shows the full extent of the of the workings at that mine. TR 239-41. This map contains both closed end and open-ended entries. Willis testified that both mean the same thing - that it is the furthest extent of the mine. TR 251. Willis then stated that Secretary’s Exhibit 7, the 1200 Map, accurately depicts the Northeastern boundary of the Blackhawk Mine (TR 260-61), the part of the Blackhawk Mine that is at issue.

            Willis’s testimony was unequivocal and highly credible. The Secretary has not suggested any reason for questioning Willis’s credibility other than that he now works for the Respondent. See Secretary’s Post-Hearing Brief and Secretary’s Reply to Clintwood Elkhorn’s Post-Hearing Brief. That is an unreasonable basis to discredit a witness’s testimony. Further, Plumley agreed with the statement that “when an engineer submits the final map of a mine, that engineer has the duty to show the full extent of the mining in that mine.” TR 129. Willis was not working for the Respondent when he prepared the final Blackhawk Mine map. Fletcher echoed this testimony, noting that “the map nomemclature that I’m familiar with in my work in the engineering, would . . . say if it was a final map, that meant that it was final, there would be nothing else.” TR 180. Plumley further admitted that he never used the open-ended concept to indicate that the extent of an entry was unknown. TR 133. Moreover, Plumley admitted that MSHA inspectors would have reviewed Blackhawk’s mine maps; and he agreed that “if MSHA inspectors saw that the Blackhawk Mine was mining an entry further than what it was depicting on the mine map and the ventilation map, you would certainly expect those MSHA inspectors to have issued citations and addressed that issue with Blackhawk Mine,” and “Blackhawk Mine, to abate those citations, would have corrected their map . . . .” TR 133. The testimony of Plumley and Fletcher supports Willis’s testimony that the February 28, 1996 Blackhawk Mine map, as a final map, would have depicted the complete mine works.

            Accordingly, I find that the 1200 Map accurately shows the full extent of the Blawkhawk Mine, and that the void intercepted by Borehole #2 was not the workings of the Blackhawk Mine. Therefore, Citation 8226822 must be vacated.

Order 8226824

            This order alleges a violation of §75.388(a), which requires that “[b]oreholes shall be drilled in each advancing working place when the working place approaches - . . . (3) To within 200 feet of any mine workings of an adjacent mine located in the same coalbed unless the mine workings have been preshift examined.” This order, as was the case with Citation 8226822, is based on the contention that the 1200 Map is inaccurate. The Secretary contends that once the void was intercepted, Respondent could not be certain of the location of the Blackhawk Mine’s workings, and therefore the 200-foot test-drill line on the 1200 Map was no longer accurate. But since I have found that the 1200 Map was accurate, this order has no factual basis. Accordingly, it is vacated.

Citation 8247677

            This citation alleges a violation of §75.372(a)(1), which requires operators to submit up-to-date mine ventilation maps to MSHA every 12 months. Once again, the alleged violation is based on the Secretary’s contention that the Blackhawk Mine was depicted inaccurately on the Hubble 6 mine maps. Since I have found that the mine maps accurately depict the Blackhawk Mine, this citation is vacated.

ORDER

            It is ORDERED that Citation 8226822, Order 8226824, and Citation 8247677 are vacated, and these cases are dismissed.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution:

J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North, Suite 420, Nashville, TN 37219

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513