FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
February 14, 2003
M & H COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket No. PENN 2002-176-R
: Citation No. 7004521;07/02/2002
v. :
: Docket No. PENN 2002-177-R
SECRETARY OF LABOR, : Citation No. 7004522;07/02/2002
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Mercury Slope
Respondent : Mine ID 36-01920
ORDER GRANTING SECRETARY'S MOTION
FOR SUMMARY DECISION
AND
STAY ORDER
These cases are before me on Notices of Contest filed by M&H Coal Company under section
105(d) of the Federal Mine Safety and Health Act of 1977 (the "Act"), 30 U.S.C.
� 815(d). M&H contests the issuance of a citation and an order by an MSHA inspector alleging that it
was mining pillars in violation of its approved roof control plan. The Secretary has moved for summary
decision, pursuant to Commission Procedural Rule 67, 29 C.F.R. � 2700.67, contending that the entire
record shows that there is no genuine issue as to any material fact and that the Secretary is entitled to
summary decision as a matter of law as to the validity of the alleged violations. For the reasons set
forth below, the Secretary's motion is granted.
Facts
The pleadings, responses to discovery, affidavits and other portions of the record establish that,
for purposes of this motion, there is no genuine issue as to the following facts. While certain of the facts
might ultimately be disputed by the Secretary, for present purposes, the facts are assumed to be as
alleged by M&H.
M&H operates a deep anthracite coal mine. As of May 2002, its approved roof control plan
did not provide for the removal of pillars on the 3rd level west gangway of its Mercury Slope Mine. By
letter dated May 18, 2002, it submitted a proposed addendum to its roof control plan to the MSHA
District Director, pursuant to which it proposed to mine main haulage pillars in that area. On June 20,
2002, Kenneth Richter, a consultant to M&H, was advised by a MSHA field office supervisor that he
and a MSHA roof control specialist favored approval of the addendum, but that they had been unable
to convince John A. Kuzar, MSHA's District Director, to approve it. It was suggested that M&H
might be able to persuade him. In a phone conversation that morning, Richter spoke with Kuzar, who
confirmed that he was going to deny the requested addendum, remarking that he had never seen
anything like the proposed addendum. Neither Kuzar, nor the other MSHA staff who participated in
the conversation had ever been in M&H's mine. Richter responded that M&H had removed pillars in
the manner proposed for fifty years and never had any problems. Kuzar responded that M&H was
now mining deeper than it ever had before, he felt that the proposed mining was too deep, and he
feared they would have a collapse resulting in fatalities. Kuzar also referred to a computer analysis that
indicated that the pillars could not be removed safely, and advised that his technical support group had
not yet finished its analysis of the proposal. Richter countered that the computer program was designed
for bituminous, not anthracite, coal. Richter answered two questions posed by other MSHA staff.
Kuzar stated that he was going to deny the requested addendum and that M&H would get the written
response in a few days.
On June 21, 2002, the day after the phone conversation, M&H commenced pillar recovery at
the subject location, in violation of its approved roof control plan. M&H hoped to be able to
demonstrate that pillar removal could be done safely. On July 1, 2002, M&H received a letter dated
June 28, 2002, from Kuzar advising that the proposed addendum to the roof control plan was
disapproved. The letter stated the reasons for the denial and listed five "circumstances" upon which the
decision was based. M&H continued to remove the pillars at the subject location. On July 2, 2002,
MSHA inspected the mine, and observed the ongoing pillar recovery operations. Citation No.
7004521, was issued, citing M&H for conducting mining operations in violation of its approved roof
control plan. Order No. 7004522 was also issued, directing that all pillaring operations cease. M&H
then ceased pillaring operations.
M&H filed notices of contest, challenging the citation and order, alleging that MSHA's denial of
the proposed addendum to its roof control plan was arbitrary and capricious, and requesting a reversal
of MSHA's determination that the pillars could not be removed in accordance with its proposed plan
and its customary and usual practices. By letters dated July 26, and 30, 2002, M&H requested a
"conference" to discuss the reasons for the denial of the addendum, pursuant to 30 C.F.R. �
75.220(b)(2). A meeting was held on August 7, 2002, at which M&H agreed to have tests run on the
compressive strength of its coal. Following those tests, on August 29, 2002, Kuzar reaffirmed the
denial of the requested addendum.
The Applicable Law
The Mine Act and regulations require that operators conduct mining in conformance with a
mine-specific roof control plan, approved by the Secretary. 30 U.S.C. � 862, 30 C.F.R. � 220. The
regulations provide that the operator be notified in writing of the denial of a proposed revision to a plan
and that "the deficiencies of the plan or revision and recommended changes will be specified and the
mine operator will be afforded an opportunity to discuss the deficiencies and changes with the District
Manager." 30 C.F.R. � 75.220(b). While the Secretary of Labor retains the ultimate authority and
responsibility to determine the contents of the plan, her discretion is not unbounded. In discussing
comparable provisions of the regulations applicable to ventilation plans, the Commission stated:
The requirement that the Secretary approve an operator's mine ventilation plan
does not mean that an operator has no option but to acquiesce to the Secretary's
desires regarding the contents of the plan. Legitimate disagreements as to the proper
course of action are bound to occur. In attempting to resolve such differences, the
Secretary and an operator must negotiate in good faith for a reasonable period
concerning a disputed provision. Where such good faith negotiation has taken place,
and the operator and the Secretary remain at odds over a plan provision, review of the
dispute may be obtained by the operator's refusal to adopt the disputed provision, thus
triggering litigation before the Commission. Penn Allegh Coal Co., 3 FMSHRC
2767, 2773 (Dec. 1981).
Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept. 1985).
Both the Secretary and the operator are obligated to engage in good faith negotiations and an
operator who fails to do so may be precluded from challenging the denial of a proposed amendment.
Id. and see C.W. Mining Co., 18 FMSHRC 1740, 1746-47 (Oct. 1996); Peabody Coal Co., 15
FMSHRC 381, 387-88 (March 1993).
M&H does not dispute that, on July 2, 2002, it was removing pillars in non-conformance with
its approved roof control plan, as alleged in the citation and order. Through these notices of contest, it
seeks to obtain a declaration that the decision to deny the proposed addendum to its roof control plan
was arbitrary and capricious, that the addendum should have been approved and it should not have
been cited for the violations. The dispute here is centered on whether M&H and the Secretary fulfilled
their respective obligations to negotiate prior to the issuance of the citation. The Secretary contends
that M&H did not fulfill its obligation to negotiate and, therefore, is precluded from challenging the
correctness of the decision to deny the proposed addendum. M&H contends that the Secretary did
not fulfill her obligation to negotiate and that further attempts to negotiate beyond the July 20, 2002,
phone conversation would have been futile.
Two key elements of good faith negotiation are clear notice of a party's position and adequate
discussion of disputed provisions. C.W. Mining Co., supra. The Secretary's obligation to negotiate is
reflected in 30 C.F.R. � 220(b), which requires that when denying a proposed addendum, the District
Manager must do so in writing, specifying the reasons for the denial. The District Manager must then
afford the operator an opportunity to discuss the reasons for the denial. The District Manager's June
28, 2002, letter appropriately stated the reasons for the denial and the considerations upon which it was
based. After receiving the letter, M&H made no attempt to discuss the issues with Kuzar. It continued
to mine the pillars and the citation and order were issued the following day.
The regulations and cases that discuss the duty to negotiate under the regulatory scheme for
approval of roof control and similar plans make clear that the duty to negotiate begins with the District
Manager's written rejection of a proposed addendum citing the reasons for the denial. None of the
cases cited by either party sanction an operator's implementation of a proposed addendum in
anticipation of the District Manager's formal decision. In C.W. Mining Co., supra, the operator was
found to have fulfilled its duty to negotiate in good faith where the citation in question was issued over
two months after MSHA had provided a detailed written notice of deficiencies in the operator's plan,
during which time the parties met and discussed all of the items cited by MSHA and the operator
submitted two revised plans. In Carbon County Coal Co., supra, negotiations over MSHA's
dissatisfaction with the operator's proposed plan were conducted for several months before the subject
citation was issued. In Peabody Coal, supra, the subject citation was issued one month after MSHA's
rejection of a plan, during which time the parties met and discussed all of the issues and the operator
submitted two revised plans.
If M&H was convinced that its proposed addendum would not be approved, it was obligated
to await the written decision specifying the reasons for the denial, and thereafter attempt to negotiate
with MSHA. If unable to achieve its goal through negotiation, it apparently would have had two
options. The first would have been to seek direct court review of the denial, pursuant to 30 U.S.C. �
811(d). The second would have been to notify the Secretary that it continued to dispute the denial and
would commence mining the pillars at a specified time, essentially, requesting that a citation be issued so
that it could challenge the citation and the denial of the proposed addendum in a proceeding before the
Commission. M&H did not await the written decision and made no attempt to negotiate after receiving
it. It cannot now attack the denial of the proposed addendum.
M&H maintains that it was excused from any obligation to attempt to negotiate because in the
June 20, 2002, phone conversation, Kuzar "refused to further consider the addendum, to receive or
consider information from M&H Coal Company about its mine, rendering any further attempts by
M&H at negotiation with MSHA absolutely futile." Respondent's memorandum of law in opposition to
the motion at p. 2. I reject its argument that the futility of negotiation, or fulfilment of its duty to
negotiate, could be established based upon a phone conversation prior to the final decision.
However, assuming arguendo, that the "futility of negotiation" position had legal merit, M&H
failed to establish the alleged futility and would not have been relieved of its obligation to negotiate in
good faith. M&H initiated the June 20 phone call to Kuzar in order to try and convince him to approve
the proposed addendum. Accepting M&H's description of the conversation, at no time did Kuzar
state, unequivocally, that the addendum would never be approved, or that he would not consider any
information that M&H might submit in support of its proposal. As noted above, Kuzar had a legal
obligation to itemize all of the reasons for the denial in his written decision and to discuss the decision
with M&H. There is nothing in the facts submitted by M&H to suggest that he did not intend to fulfill
that obligation.
In fact, there were several facts known to M&H that should have lead it to conclude that
eventual approval of the proposal was at least possible. It knew that the MSHA field office supervisor
and one of the roof control specialists favored approval of the addendum. It knew that Kuzar's
technical support group had not finished its investigation, and it might also be able to challenge some of
the factors that Kuzar was relying on, such as his belief that the proposed pillar removal was deeper
than M&H had conducted such operations in the past. The conversation apparently did not touch upon
the first three factors later itemized in the written denial. In fact, after the citation and order were
issued, M&H submitted additional information to Kuzar, and agreed to have coal from the mine tested
for compressive strength.
The precedent that M&H seeks to establish here is somewhat alarming. Having been apprised
of the likely denial of its proposed addendum, it immediately commenced mining in violation of its
approved roof control plan, and continued to mine in violation of the plan after receipt of the written
decision. It did not inform MSHA that it was doing so. It claims that it was attempting to prove that
mining pursuant to the procedure contained in the proposed addendum could be done successfully and
safely. But, it was also mining as much coal as it could before being ordered by MSHA to cease pillar
removal. It deliberately chose to embark upon a mining procedure that MSHA had determined posed
a serious risk to miners not as a limited operation to prompt issuance of a citation in order to generate
litigation before the Commission but to generate as much evidence and coal as possible prior to
MSHA's discovery of the operation. To permit an operator to litigate the correctness of MSHA's
decision under these circumstances would encourage operators to violate � 75.220(c) and to virtually
ignore adverse decisions on proposed plan addenda.
Based upon the foregoing, the Secretary's motion for summary decision is GRANTED,
Citation No. 7004521 and Order No. 7004522 are affirmed as to the alleged violations of 30 C.F.R. �
220(c). M&H will not be permitted to challenge the denial of the proposed addendum to its roof
control plan in these proceedings. The parties did not directly address the gravity and negligence
determinations in the motion and opposition and those issues can be dealt with more efficiently in a
challenge to the proposed civil penalties.
Accordingly, further proceedings in these cases are hereby STAYED, pending assessment of
civil penalties.
Michael E. Zielinski
Administrative Law Judge
202-434-9981
Distribution:
Andrea J. Appel, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The Curtis
Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
James P. Wallbillich, Esq., 450 West Market Street, Pottsville PA 17901
/mh