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BLACK BEAUTY COAL COMPANY
Docket No. LAKE 2002-20
August 22, 2002



         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                        5203 Leesburg Pike
                   Falls Church, Virginia 22041

                        August 22, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. LAKE 2002-20
               Petitioner       : A. C. No. 12-02010-03609
          v.                    :
                                :
BLACK BEAUTY COAL COMPANY,      : Air Quality No. 1 Mine
               Respondent       :


                ORDER DENYING MOTION TO LIFT STAY


     Proceedings in this case were stayed on February 6, 2002, pending
completion of a 110(c) investigation, 30 U.S.C. § 820(c), involving Respondent's
employees.  The Respondent has now filed a Motion to Terminate Stay of
Proceedings.  The Secretary opposes the motion.  For the reasons set forth
below, the motion is denied.

     When the Secretary filed the original motion to stay, she indicated that
the investigation was expected to be completed within 90 to 120 days.  Pointing
out that more than 120 days have elapsed, the Respondent states that three of
its employees, who were present during the inspection which resulted in the
citations in this case, no longer work for the company.

     In response to the motion, the Secretary requests that the stay remain in
effect because the matter has been referred to the U.S. Attorney for criminal
investigation.  Included with the response, is a letter from the U.S. Attorney's
office requesting that the Secretary seek a stay in the case.

     The Commission has held that the following factors should be considered in
determining whether to lift a stay in a case where the possibility of criminal
prosecution exists: (1) the commonality of evidence in the civil and criminal
matters; (2) the timing of the stay request; (3) prejudice to the litigants; (4)
the efficient use of agency resources; and (5) the public interest.  Buck Creek
coal, Inc., 17 FMSHRC 500, 503 (April 1995).  After considering these factors, I
conclude that the stay should remain in place.

     Here it appears that the evidence in the civil and criminal matters will be
the same.  The Commission has noted that it is proper to stay civil proceedings
if they `"churn over the same evidentiary material"' as the criminal case.  Id.
(citing Peden v. United States, 512 F.2d 1099, 1103 (Ct. Cl. 1975).  Thus, I
find that this factor supports retaining the stay.

     Turning to the second factor, the Commission has held that where there has
been no criminal investigation and, therefore, no reference to the U.S. Attorney
for criminal prosecution there is a "reduced need for a . . . stay."  Capitol
Cement Corp., 21 FMSHRC 883, 890 (August 1999).  The opposite, however, is true
in this case.  The matter has been referred to the U.S. Attorney for criminal
investigation.  Accordingly, I find that this factor also supports retaining the
stay.

     The third factor requires consideration of prejudice to the litigants.
Black Beauty asserts that three potential witnesses have left its employ and
that "at least one of these witnesses has moved to another state."  (Resp. Mot.
at 2.)  The Respondent does not contend, however, that these witnesses are
unavailable or that their evidence cannot be memorialized, if it has not already
been, to refresh recollections.  Nor does the company aver that these are the
only witnesses available to it.  The company's bare assertion, without more, is
not sufficient to establish that it will be prejudiced if the stay continues.
This does not preclude it from conducting its own investigation.  Consequently,
I find that this factor does not militate against retaining the stay.

     The fourth factor also supports retaining the stay.  Any witness who may be
subject to criminal prosecution is likely to assert his privilege against self-
incrimination if called to testify in the civil penalty proceeding.  This would
hinder rather than advance the efficient use of agency resources.

     Finally, only the fifth factor results in the conclusion that the stay
should be lifted.  As the Commission observed over 20 years ago, "there is a
substantial public interest in the expeditious determination of whether
penalties are warranted."  Scotia Coal Mining Co., 2 FMSHRC 633, 635 (March
1980).

     After considering all of the factors involved in granting or denying a
stay, it is clear that four of the five either support, or are not contrary to,
retaining the stay.  Accordingly, the Motion to Terminate Stay of Proceedings is
DENIED.



                                             T. Todd Hodgdon
                                             Administrative Law Judge
                                            (703) 756-6213


Distribution: (Certified Mail)

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor,
230 South Dearborn Street, Suite 844, Chicago, IL 60604

David Joest, Esq., Black Beauty Coal Company, 1970 Barrett Court, P.O. Box 1990,
Henderson, KY 42420

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