Black Diamond Construction, Inc.

Plain-English summary

Black Diamond Construction performed work to eliminate a coal refuse impoundment so longwall mining could proceed beneath it. MSHA cited two Black Diamond employees under the Part 48 training rules, but the Secretary later vacated the citations before trial. An ALJ awarded Black Diamond $14,390.25 in attorney fees and expenses under the Equal Access to Justice Act after finding that the Secretary’s position was not substantially justified. The Commission affirmed that award, rejecting the argument that the work was only maintenance or alteration rather than construction. The Commission remanded the case so Black Diamond could amend its EAJA application to seek reasonable fees and expenses incurred in defending the award before the Commission. Commissioner Marks dissented.

Decision snapshot

• Cited authority: 5 U.S.C. § 504, 30 U.S.C. § 801, 30 C.F.R. §§ 48.22(a)(1)(i), 48.25(a), and 48.29(c), and 29 C.F.R. § 2704.306(c)
• Outcome: The Commission affirmed the $14,390.25 EAJA award and remanded for consideration of additional fees and expenses incurred before the Commission.
• Key point: The Secretary’s position was not substantially justified when the undisputed work involved demolishing and rebuilding an impoundment, work that fell within the regulatory description of construction work.

Full text (FMSHRC public release)

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

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006

                    November 3, 1999

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

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

                        DECISION

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

 This is a proceeding involving the recovery of attorney's

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

                           I.

            Factual and Procedural Background

 A.   The Mine Act Proceeding[2]

 On May 15, 1997, during a routine mine inspection at the

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

 Thompson also observed Black Diamond employee Matthew

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

 Thompson issued two citations against Black Diamond.

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

 Later that day, Thompson met with William Casto, vice-

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

 The  Program  Policy  Manual,  Part  48  Training  and

Retraining of Miners, provides:

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

      ****

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

      ****

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

      ****

      B.  Surface Mines or Surface Areas of Underground Mines

      ****

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

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

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

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

 On October 17, 1997, the Secretary filed a petition for

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

 After the failure of settlement discussions, the judge

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

 On February 23, one day prior to the scheduled hearing,

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

 B.   The EAJA Proceeding

 Black Diamond filed an application for legal fees and

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

 The Secretary opposed the application, stating that her

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

 The judge viewed the primary issue in the underlying

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

                           II.

                       Disposition

 A.   Motions to Strike

 Because the Mine Act proceeding ended prior to trial

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

 Black Diamond filed a motion to strike citations in the

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

 Black Diamond also objects to the Secretary's reference

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

 Consideration of the non-record deposition testimony is

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

 B.    EAJA Application

 The Secretary argues that the judge erred in failing to

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

 Black Diamond responds that the Secretary's position was

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

 EAJA provides that a prevailing party may be awarded

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

 "Position of the agency" is defined as "in addition to

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

 Part 48 of the Secretary's regulations, which covers

the training and retraining of miners, excludes "construction
workers" from the definition of "miner" at surface areas
of underground mines. 30 C.F.R. § 48.22(a)(1)(i). The
regulations do not further define construction workers or
describe their work functions. MSHA's PPM also excludes the
employees of independent contractors who are involved in
surface construction work. III MSHA, PPM, Part 48, at 14.
The PPM further provides that "[c]onstruction work includes
the building or demolition of any facility." Id. at 14b.
The PPM also specifies that a person performing maintenance
or repair work must be trained in accordance with the
regulations, and that "[m]aintenance or repair work includes
the upkeep or alteration of equipment or facilities." Id. at

15. The relevant terms in the PPM are not further defined
    or given a technical usage. Accordingly, the Commission
    looks to the ordinary meaning of these terms. See Bluestone
    Coal Corp., 19 FMSHRC 1025, 1029 (June 1997) (applying this
    rationale to the language of a regulation).

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

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

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

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

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

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

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

                          III.
    
                       Conclusion
    

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

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

FOOTNOTES

 [1] Judge  Jerold  Feldman  presided over the Mine Act

proceeding and issued the order dismissing the proceeding;
however, the EAJA application was assigned to Judge Barbour.

 [2] The facts in this case were developed largely as a

result of discovery during the Mine Act proceeding. However,
because there was no hearing in that matter, those facts only
became a part of the record during the EAJA proceeding. See
29 C.F.R. § 2704.306(c).

 [3] Section 48.25(a) provides in pertinent part: "Each

new miner shall receive no less than 24 hours of training as
prescribed in this section."

 [4] Section  48.29(c)  provides:  "Copies  of training

certificates for currently employed miners shall be kept at
the mine site for 2 years, or for 60 days after termination
of employment."

 [5] The Secretary also opposed the application on the

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

 [6] The Secretary attached affidavits to its Answer to

the EAJA Application that indicated that two additional MSHA
officials had differing opinions on the nature of Black
Diamond's work. S. Answer to EAJA Appl., Attach. F, G.

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

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

 [8] Significantly, the Secretary continues to argue in

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

 [9] According to the Plan, the Spruce Lick Fork coal

refuse facility had been idle during the 5 years preceding
the submission of the Plan. Plan at 2.

 [10] The  judge  noted  two  decisions  by  other

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

 [11] Commissioner Marks states that "[u]ntrained persons

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

 [12] Contrary to our dissenting colleague's suggestion

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

 [13] Commissioner Riley observes that such matters

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

Commissioner Marks, dissenting:

 Because I conclude that the Secretary was "substantially

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

 Under EAJA, a prevailing party may receive an award

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

 In interpreting "substantially justified," the Supreme

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

 At issue in this case is not whether the Secretary would

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

 After a complete review of the Secretary's position and

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

 Prior to the February 18, 1998 deposition of MSHA

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

 MSHA Inspector Thompson who issued the citation

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

 MSHA's view was based on the premise that both

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

 Further, the Secretary's construction of the PPM was

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

 In addition, the Secretary's position was reasonable

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

 I conclude that, up until the time of the Shelton

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

 When other agencies have similarly acted, no award has

been granted. In Blaylock Elec. v. NLRB, 121 F.3d 1230 (9th
Cir. 1997), the General Counsel withdrew its complaint one
month after hearing and the day before post-hearing briefs
were due. In denying fees under EAJA, the court opined that,
although the General Counsel was unlikely to prevail on the
merits, the ultimate determination would depend upon whether
the judge credited certain testimony. Id. at 1235-36.
Because of this, the General Counsel was substantially
justified in pursuing the case through trial, notwithstanding
the relative weakness of its case. Id. So too, examining
the evidence prior to the Shelton deposition, if the judge
had credited the testimony of the Inspectors Thompson and
Ellis, although it might have been a close case, the
Secretary may well have prevailed on the merits. See Welter,
941 F.2d at 676 (holding that the Secretary's reliance on
experts and on some contradictory and inconsistent evidence
was sufficient to support the Secretary's position, although
the court recognized that the case was a close one, because
"[c]loseness itself is evidence of substantial justification").
Thus, an EAJA award was not warranted for the time preceding
the Shelton deposition.[5]

 Moreover, the Secretary's prompt dismissal, only three

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

 MSHA's decision to prosecute this case as long as she

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

                          Marc Lincoln Marks, Commissioner

Distribution

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

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

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

FOOTNOTES

 [1] I disagree with the majority's characterization of

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

 [2] In order to conclude that Black Diamond's work was

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

 [3] The Commission may take judicial notice of MSHA

public documents. Secretary of Labor on behalf of Acton v.
Jim Walter Resources, Inc., 7 FMSHRC 1348, 1355 n.7 (Sept.
1985).

 [4] In concluding  that  the  Secretary's position was

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

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

 [5] Contrary  to the majority's misapprehension of my

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

 [6] The majority relies on a slim morsel to harshly

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