Secretary of Labor v. Clintwood Elkhorn Mining Company, LLC

Plain-English summary

MSHA alleged that Clintwood Elkhorn's maps did not show the full extent of an abandoned adjacent mine after a horizontal borehole intercepted an unexpected void. The engineer who certified the adjacent mine's final 1996 map testified that it showed the complete workings and that open and closed entry ends both marked the mine's furthest extent. Judge Jeffrey Tureck credited that testimony and found that the operator's current map accurately depicted the abandoned mine. Because the intercepted void was not part of those mine workings, the related 200-foot test-drilling order lacked a factual basis. The annual ventilation-map citation rested on the same rejected theory. All three enforcement actions were vacated and the cases dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1200, 75.372(a)(1), and 75.388(a)
• Outcome: Two citations and one order were vacated, and both dockets were dismissed.
• Key point: An unexpected borehole void did not prove that a certified final adjacent-mine map was inaccurate when credible testimony established that the map showed the mine's full extent.

Full text (FMSHRC public release)



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

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

v.

CLINTWOOD ELKHORN MINING COMPANY, LLC,
Respondent
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CIVIL PENALTY PROCEEDINGS

Docket
No. KENT 2011-546
A.C. No. 15-19208-241954-01 YGX

Docket No.
KENT 2011-547
A.C. No. 15-19208-241954-02 YGX

Mine: Hubble No. 6

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 25th, 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
28. 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