Secretary of Labor v. Oak Grove Resources, LLC

Plain-English summary

MSHA cited Oak Grove Resources for allegedly failing to use sightlines or another directional control while cutting slanted storage areas in an underground coal mine. Judge Alan G. Paez held that 30 C.F.R. § 75.203(b) requires use of a directional control, but does not create a separate duty to maintain the projected direction of mining regardless of whether a control was used. The Secretary did not prove the sightlines were absent, and the inspector's references to missing spads conflicted with testimony that painted sightlines were present. Wide slant cuts also could be explained by inexperienced machine operators and rib sloughage at weak pillar points. Because the evidence did not establish a violation by a preponderance, the citation was vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.203(b)
• Outcome: Citation No. 8519718 and its proposed $10,700 penalty were vacated.
• Key point: Wide cuts may suggest missing directional controls, but they do not prove the controls were absent when credible alternative causes explain the width.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, D.C.
20004-1710

May 22, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

OAK GROVE RESOURCES, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2011-881

A.C. No. 01-00851-265581-01

Mine: Oak Grove Mine

DECISION

Appearances:   Monique Wright Hudson, Esq., and Leslie P.
Brody, Esq., Office of the Solicitor, Atlanta, Georgia, on behalf of the
Secretary of Labor;

Eric Johnson, Esq., Office of the
Solicitor, Nashville, Tennessee, on behalf of the Secretary of Labor (on
briefs);

R. Henry Moore, Esq., Jackson
Kelley PLLC, Pittsburgh, Pennsylvania, on behalf of Oak Grove Resources, LLC.

Before:            Judge Paez

This case is before me upon the Petition for the
Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”)
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977
(“Mine Act”), 30 U.S.C. § 815(d). This case initially involved one section
104(d)(2) order and one section 104(a) citation. However, the parties reached a
settlement regarding the section 104(d)(2) order, which was disposed in a
separate Decision Approving Partial Settlement.

In dispute is one section 104(a) citation issued
to Oak Grove Resources, LLC (“Oak Grove” or “Respondent”). To prevail, the
Secretary must prove his charges “by a preponderance of the credible evidence.”
In re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This
burden of proof requires the Secretary to demonstrate that “the existence of a
fact is more probable than its nonexistence.” RAG Cumberland Res. Corp.,
22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marks
omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001).

I.  STATEMENT OF THE CASE

The single alleged violation remaining in this case was issued
at the Oak Grove Mine on March 16, 2011. Citation No. 8519718 charges Oak Grove
with a violation of 30 C.F.R. § 75.203(b) for failing to use sightlines or
other method of directional control to maintain the direction of certain cuts
in the 13 East Section of the mine. The Secretary designated the citation as
significant and substantial (“S&S”)[1]
and characterized Oak Grove’s negligence as moderate. The Secretary proposed a
specially-assessed penalty of $10,700.00.

Chief Administrative Law Judge Robert J. Lesnick assigned Docket
No. SE 2011-881 to me, and I held a hearing in Birmingham, Alabama.[2]
The Secretary presented testimony from MSHA Inspector Stanley Wilkosz and
Conference Litigation Representative (CLR) John Church.[3]
Oak Grove presented testimony from Lead Safety Auditor Thomas Fisher, Section
Foreman Paul Jamison, and Safety Manager Lawrence Pasquale. The parties each
filed closing briefs, and the Secretary filed a reply brief.

II.  ISSUES

The Secretary contends that section 75.203(b)
imposes two independent duties. (Sec’y Br. at 6–9.) In addition, he argues that
Respondent fulfilled neither duty. (Id.) Accordingly, the Secretary
claims that the condition was properly cited as a violation and that the
allegations underlying the citation are valid. (Id. at 14.) Oak Grove
denies that a violation existed and rejects the Secretary’s allegations
regarding the gravity of the violation. (Resp’t Br. at 6, 10–11.) In addition,
Oak Grove contends that Citation No. 8519718 is duplicative of two citations
that are not before me. (Id. at 14–18.)

The parties raised several potentially
interesting questions. However, the threshold issues before me are as follows: (1)
whether 30 C.F.R. § 75.203(b) implies two independent duties; and (2) whether
the Secretary has proven by a preponderance of the evidence facts demonstrating
a violation of mandatory health or safety standards regarding directional
controls. For the reasons set forth below, Citation No. 8519718 is VACATED.

III.  FINDINGS OF
FACT

A.        Safety
Principles in Underground Coal Mining

Given the danger involved in underground coal
mining, MSHA specifies the manner in which an operator—including Oak Grove—may
mine its coal seam and the steps it must take to support its mine roof. Among
other provisions, Oak Grove’s approved roof control plan dated December 28,
2010 (“December 28 Plan”) sets the maximum allowable widths for the “cuts” it
makes through the coal seam to extract coal. (Ex. R–7.)

In particular, MSHA requires operators to use
sightlines or other directional controls when making cuts to help maintain the
projected direction of mining. 30 C.F.R. § 75.203(b). Sightlines are painted
onto a mine roof up to the working face. (Tr. 34:8–10, 115:5–12.) A sightline
provides a continuous mining machine operator a point of reference for the
proper location of the center of the cut. (Tr. 79:9–17, 82:6–9.) Thus,
sightlines keep an operator’s cuts on the projections included in the
operator’s mine map. (Tr. 23:8–11.) They also help ensure that those cuts do
not exceed the width permitted under the operator’s roof control plan. (Tr.
23:11–14.) Here, Oak Grove painted sightlines using fluorescent paint that
normally remains visible even after rock dust has been applied to the roof. (Tr.
145:14–17, 146:3–6.)

B.        Operations at Oak Grove Mine

Oak Grove Mine is a longwall coal mine located
in Jefferson County, Alabama. (Tr. 24:23–25:3; Ex. R–7 at 1.) As Oak Grove
developed the 13 East Section, it cut four parallel entries around the outside
of the large coal reserve section. (Ex. R–1; Ex. R–3; Ex. R–8.) From left to
right, these entries were numbered 1 through 4. (Ex. R–1; Ex. R–3; Ex. R–8.) As
mining advanced, Respondent also made perpendicular cuts, known as crosscuts,
that connect those entries. (Tr. 83:6–16, 133:10–16.) Rectangular blocks of
coal—also known as coal pillars—were left between the entries and crosscuts to
support the mine roof overhead. (Ex. R–1; Ex. R–3; Ex. R–8; Tr. 87:15–88:9,
94:11–17, 119:24–120:4.) When viewed from overhead, these entries and crosscuts
resemble a grid of city streets. (Ex. R–1; Ex. R–3; Ex. R–8.) Respondent began
developing the 13 East Section in September 2010, and had advanced
approximately 34 crosscuts by March 2011. (Tr. 128:19–23.)      

Respondent also cut “slants” at a
forty-five-degree angle from its No. 2 entry through its coal pillars and into
every second crosscut. (Tr. 44:3–18, 86:11–87:3, 119:24–120:4, 133:17–21; Ex.
R–3.) Slant cuts provide a place for Respondent to store equipment and supplies
used on the section. (Tr. 37:18–23, 86:25–87:3, 109:19–20, 123:23–25,
124:14–23.) These slant cuts split a formerly rectangular block of coal into
two coal pillars: one large, five-sided block and one small triangular block. (Ex.
R–1; Ex. R–3; Ex. R–8; Tr. 87:15–88:9, 119:24–120:4.) Respondent’s December 28
Plan limits slant cuts to 20 feet in width. (Ex. R–7 at 1.)

Oak Grove cut the 13 East Section’s entries,
crosscuts and slants using continuous mining machines. (Tr. 105:10–14.) When
making cuts, a mining machine operator stands behind the thirty-five-foot long
machine with a remote control to direct its cuts. (Tr. 105:13–21, 106:8–16,
107:12–21, 125:23–127:1.) Given the machine operator’s distance from the
cutting face and the coal dust created in the mining process, it is difficult
to make precision cuts along a sightline. (Tr. 91:5–24, 92:11–13, 107:12–24,
127:2–21.) Although an operator’s ability to make precision cuts improves with
experience, even experienced miners inadvertently cut entries, crosscuts, and
slants too wide. (Tr. 107:12–24, 127:16–21.) Moreover, Oak Grove’s continuous
mining machine operators on 13 East Section did not have much experience. (Tr.
127:9–14.)

The coal seam in the 13 East Section is soft,
and rib sloughage occurs when the rib (or walls) of an entry, crosscut, or
slant deteriorates and “rolls off” (or collapses), thereby making the entry,
crosscut, or slant wider than initially cut. (Tr. 93:6–13, 99:15–19, 120:5–8.) Sloughage
is common in the slants on the 13 East Section. (Tr. 120:5–8.) In addition, the
weakest part of the small, triangular pillar is the portion where it comes to a
point. (Tr. 93:22–94:3.) Accordingly, the point of the triangular pillar is the
most likely to slough off. (Tr. 94:4–7, 120:22–121:8.) Finally, the amount of
sloughage increases over time. (Tr. 99:12–21.)

C.        Mine
Inspection — March 16, 2011

On March 16, 2011, MSHA Inspector Stanley
Wilkosz visited the Oak Grove Mine. (Tr. 24:22.) After reviewing section,
pre-shift, and on-shift reports, he traveled to the 13 East Section with a
union representative. (Tr. 25:13–17, 26:10–13; Ex. G–1 at 1–2.) Wilkosz noticed
“notches” in the section’s slant cuts suggesting to him that Oak Grove had
mined the slant in the wrong direction, then stopped and redirected its cut. (Tr.
29:2–13, 40:13–20.)  However, Wilkosz did not record measurements for any of
the notches. (Tr. 56:18–24.) Nevertheless, he and Inspector John Turpo measured
portions of slants that exceeded the 20-foot maximum width permitted under the
December 28 Plan. (Tr. 29:12–30:3; Ex. G–1 at 5, 12–15.) Wilkosz measured areas
as wide as 27 feet near the point of the small, triangular coal block adjacent
to crosscuts 21 and 25. (Tr. 30:12–13, 31:1, 120:19–121:1; Ex. G–1 at 12–13.)

According to Wilkosz, cutting without the
required sightlines can result in cuts that exceed the permitted width. (Tr.
34:11–14.) He testified that he looked at the mine roof in crosscuts 13, 15,
17, 19, 21, 23, 25, and 29 and saw no sightlines on the roof.[4]
(Tr. 31:21–32:10, 33:21–25, 40:18–20, 60:6–8.) In addition, Wilkosz testified
that no one from Oak Grove pointed out sightlines in the area.[5]
(Tr. 32:9–19.)

Based on his observations, Inspector Wilkosz
issued Citation No. 8519718 alleging a violation of section 75.203(b):

A sightline or other method of
directional control shall be used to maintain the projected direction of mining
in entries, rooms, crosscuts and pillar splits. In the 13 East [S]ection MMU
(033-0) where they are cutting slants there are no sight spads to maintain the
projected direction of mining at crosscuts 13, 15, 17, 19, 21, 23, 25, and 29.

(Ex. G–2 at 1.) Wilkosz designated the citation as an
S&S violation affecting two persons and characterized Oak Grove’s
negligence as “moderate.”[6]
(Id.)

IV.  REGULATORY
ANALYSIS, ADDITIONAL FINDINGS OF FACT

AND CONCLUSIONS OF
LAW

A.        30
C.F.R. § 75.203(b)

The Secretary claims that section 75.203(b)
includes two independent duties: (1) use of a sightline or other directional
control; and (2) maintenance of the projected direction of mining. (Sec’y Br.
at 7–8.) According to the Secretary, “[w]ithout the requirement to maintain the
projected direction of mining, sightlines serve no purpose.” (Sec’y Br. at 7.) Moreover,
the Secretary claims that such a requirement is “unique to 30 C.F.R. §
75.203(b)” and is “imposed by the plain language of the standard.” (Id.
at 7–8.)

Regulatory interpretation is a two-step process.
First, unambiguous regulatory provisions “must be enforced as they are written
unless the regulator clearly intended the words to have a different meaning or
unless such meaning would lead to absurd results.” Jim Walter Res., Inc.,
28 FMSHRC 579, 587 (Aug. 2006) (citing Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987), and Utah Power & Light Co.,
11 FMSHRC 1926, 1930 (Oct. 1989)). The meaning of regulations are
“ascertain[ed] . . . not in isolation, but rather in the context in which those
regulations occur.” Wolf Run Mining Co., 32 FMSHRC 1669, 1681 (Dec.
2010) (citing RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 & n.7 (Feb.
2004)). Second, if the meaning of the regulation is ambiguous, the Secretary’s
reasonable interpretation of the regulation is entitled to deference. Mach
Mining, LLC, 34 FMSHRC 1784, 1806 (Aug. 2012).

Section 75.203(b) provides that a “sightline or
other method of directional control shall be used to maintain the projected
direction of mining . . . .” 30 C.F.R § 75.203(b). The text of the regulation
can be broken into two parts. The first part lists required items, and the
second part establishes a goal or purpose to be achieved. The Secretary’s
interpretation reads both parts as independent duties. However, the regulation
may also be read to simply specify the manner in which an operator must
achieve a stated purpose. Cf. Cumberland Coal Res., LP, 28 FMSHRC
545, 552 (Aug. 2006) (indicating that the duty under section 75.334(b)(1) is to
provide an effective bleeder system that protects the active workings from
dangerous accumulations of methane); see also 30 C.F.R. § 75.334(b)(1)
(“During pillar recovery, a bleeder system shall be used to control the
air passing through the areas and continuously dilute and move methane-air
mixtures and other gasses, dusts, and fumes from the worked out areas away from
active workings, and into a return air course or to the surface of the mine.”)
(emphasis added). From that perspective, section 75.203(b) only imposes a duty
to use sightlines or other methods of directional control. Cf. Faith Coal
Co., 19 FMSHRC 1357, 1372 (Aug. 1997) (affirming Administrative Law Judge’s
decision finding no violation based solely on whether sightlines were used and
deviations were necessitated by poor roof). Given these two plausible readings,
section 75.203(b) appears to be ambiguous. See Island Creek Coal Co.,
20 FMSHRC 14, 19 (Jan. 1998) (finding that where a meaning of a term in a
regulation is “open to alternative interpretations . . . we conclude that it is
in some respects ambiguous.”). Moreover, nothing in the regulatory history—see
Safety Standards for Roof, Face, and Rib Support, 53 Fed. Reg. 2,354, 2,355
(Jan. 4, 1988)—or section 75.203(b)’s placement in the Secretary’s regulatory
scheme suggests that its terms are unambiguous. Accordingly, I conclude that
the regulation does not unambiguously—or, in the Secretary’s words,
plainly—require that the projected direction of mining be maintained.

Next, I must determine whether the Secretary’s
interpretation is reasonable and entitled to deference. Here, the Secretary
interprets maintenance of the direction of mining as an independent duty that
is violated when an operator mines an “excessive width.” (Sec’y Br. at 7.)
Notably, the Secretary’s brief neither argues that his interpretation is
entitled to deference nor points to any previous interpretive guidance in his
Program Policy Manual, Program Information Bulletins, Program Policy Letters,
or Procedure Instruction Letters. In fact, the Secretary’s proposed
interpretation conflicts with Inspector Wilkosz’s testimony that he could not
cite Oak Grove under section 75.203(b) if sightlines were present. (Tr.
31:17–20.) CLR Church concurred with Wilkosz’s interpretation: “If there is a
sightline in place and it’s being maintained, [a wide place] would not be a
violation of section [75.]203(b).” (Tr. 84:15–20.) Although deference may be
accorded to a reasonable interpretation advanced in a legal brief, such
deference is inappropriate “when there is reason to suspect that the agency’s
interpretation ‘does not reflect the agency’s fair and considered judgment of
the matter in question’” such as “when the agency’s interpretation conflicts
with a prior interpretation.” Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156, 2166 (2012) (citations omitted). I therefore conclude that the
Secretary’s suggested interpretation is not due any deference.[7]
Instead, I determine that section 75.203(b) requires only that a sightline or
other directional control be used to achieve the intended purpose.

B.        Additional
Findings of Fact                  

The Secretary contends that Inspector Wilkosz’s
measurements and testimony support a conclusion that no sightlines were
present. (Sec’y Br. at 3–4, 6–7.) Oak Grove points to the testimony of Lead
Safety Auditor Fisher and Section Foreman Jamison to contend sightlines were
present in the 13 East Section and were pointed out to Wilkosz. (Resp’t Br. at
6–7.) I therefore must determine whether the Secretary has met his burden of
proving that Oak Grove did not use sightlines or other directional controls in
its slant cuts on the 13 East Section.

For the three reasons outlined below, I determine that the
Secretary has not satisfied this burden.

First, the text of Citation No. 8518718, Wilkosz’s
contemporaneous inspection notes, and the conflicting testimony from Fisher and
Jamison each significantly undermine the credibility of Wilkosz’s testimony
regarding his March 16 inspection. It is uncontroverted that spads are
different than sightlines and were not required in Oak Grove’s slant cuts. (Tr.
33:2, 89:14–90:19.)  However, Inspector Wilkosz alleged in the text of Citation
No. 8519718 that Oak Grove did not have “sight spads” in the slant cuts at
issue. (Ex. G–2.) His inspection notes likewise refer to “surveyor spads” and
“surveyor sights.” (Ex. G–1 at 5, 16.) The Secretary argues that in light of
his experience Wilkosz’s use of “spad” and “surveyor sights” should be read to
mean “sightlines.” (Sec’y Br. at 6 n.2.) Wilkosz has many years of experience
working in and inspecting coal mines, as well specific experience as a
topographical surveyor in the U.S. Army Reserve. (Tr. 18:18–24:18.) I also
understand that the terms “spad” and “surveyor sights” are sometimes used
interchangeably with “sightlines.” (Tr. 33:6–7, 89:23–90:1, 90:20–24.) Yet, it
is unclear why an inspector aware of the difference between spads and
sightlines—as well as the terms of section 75.203(b)—would write “spad” in both
his notes and citation unless he was citing Oak Grove for a lack of spads,
rather than sightlines. On the contrary, an inspector with Wilkosz’s particular
experience would seem more likely to be precise in his language. Thus, I do not
find convincing the Secretary’s explanation that Wilkosz meant sightlines when
he wrote spads.

In addition, Fisher and Jamison claimed that
Wilkosz told them while underground that Oak Grove needed to use spads—in the
specific sense—in the slant cuts. (Tr. 116:17–118:16, 143:10–12, 145:1–13.) When
they returned above ground, Fisher testified that he specifically reviewed the
text of section 75.203(b) with Wilkosz to stress that spads were not necessary.

(Tr. 118:6–16.) In contrast, Wilkosz claims he only
mentioned spads while underground as a suggestion that might help Oak Grove
make straight cuts in the future. (Tr. 38:25–39:6.) Curiously, the Secretary
chose not to elicit testimony from Inspector Turpo, who helped Wilkosz take his
measurements. Instead, the Secretary chose to rely solely on Wilkosz’s
observations. Weighing his testimony against the testimony of two credible
witnesses who worked in the 13 East Section every day, along with the text of
Citation No. 8519718 and Wilkosz’s contemporaneous notes, I have significant
doubts about the accuracy of Wilkosz’s testimony. I therefore accord little
weight to his testimony regarding his observations during his March 16
inspection.

Second, Wilkosz’s wide measurements on the 13
East Section are insufficient to demonstrate a lack of sightlines. The
Secretary hopes I will view Wilkosz’s measurements as evidence that sightlines
were absent in the slant cuts on the 13 East Section. (Sec’y Br. at 6–8.) From
this perspective, missing sightlines led to wide places because the continuous
miner operator had no point of reference while making the cut. Yet, as CLR
Church testified, wide places merely suggest a lack of sightlines but do
not necessarily indicate that none were used.

(Tr. 83:20–84:4.) Thus, wide places are simply indirect
evidence from which I might infer a lack of sightlines.

In this case, Respondent presented a
countervailing explanation for its wide places: the combination of inexperienced
continuous miner operators and rib sloughage. (Resp’t Br. at 9–10.)  The
Secretary does not dispute that even experienced miners sometimes cut a
slant a few feet wider than permitted even when a sightline is present. (Tr.
84:10–14; Sec’y Br. at 7.) He also does not dispute that sloughage may result
in entries that are a few feet wider than initially mined. (Tr. 50:8–11,
93:6–13, 99:12–100:10; Sec’y Br. at 7.) Rather, the Secretary claims that his
theory of the case is a “simpler and more plausible” explanation for deviations
in width of “up to seven feet.” (Sec’y Br. at 7.)                                 

Unfortunately for the Secretary, his burden of
proof has not changed. An explanation may often be “simpler” or “more
plausible” than others without being “more likely than not.”  Here, Wilkosz’s
notes only reflect measurements in the slants for crosscuts 21, 25, 29, and 33.
(Ex. G–1 at 12–15.) Notwithstanding Wikosz’s measurements showing that two wide
places exceeded the permissible slant width by seven feet, it is unclear that
those widths are representative of the wide places he found in crosscuts 13,
15, 17, 19, and 27.   

Further, I accord little weight to Wilkosz and
Church’s opinions that sloughage or inadvertent mining were unlikely to explain
seven-foot deviations from the permitted slant width. Neither factor need
wholly explain the deviation: the wide areas could be explained by some
combination of inadvertence and sloughage. Here, the wide places that
Wilkosz did measure appear to have occurred at the point of the small,
triangular coal pillar—precisely at the location where rib sloughage would be
the most severe. In addition, Oak Grove’s miner operators had little
experience, which could lead to larger than normal deviations from the
permitted cut width. Taken together, these two factors would explain these
deviations at least as well as the Secretary’s theory that sightlines must have
been absent. Critically, Wilkosz and Church failed to address whether the
combination of these two factors could result in slants that exceed the
permissible width by seven feet.[8]
Accordingly, I do not find that an inference of missing sightlines is
appropriate based on the few places for which Wilkosz recorded measurements.

Third, it is uncontroverted that Wilkosz and
other inspectors traveled the 13 East Section several times since Oak Grove
developed the slants in question. The Mine Act is a strict liability statute,
and these inspectors’ failure to cite violative conditions previously would not
excuse Respondent from its duties. However, the inspector’s failure to issue
such citations in their frequent visits to the area suggests that sightlines
were not absent and that seven-foot deviations were not prevalent.

Considering all of the evidence before me, the
Secretary has not shown that a lack of sighlines is the necessary—or most
likely—inference to be drawn from the wide places in Oak Grove’s slant cuts. Given
my doubts regarding the accuracy of Wilkosz’s testimony, I determine that the
Secretary has not met his burden of proving that sightlines were absent in the
slant cuts on the 13 East Section.

C.        Conclusions
of Law

In view of the above, I conclude that the
Secretary has failed to demonstrate by a preponderance of the evidence that Oak
Grove violated section 75.203(b). Because I have not found a violation, I do
not need to address the Secretary’s S&S and negligence allegations. Moreover,
I need not address Oak Grove’s assertion that Citation No. 8519718 is
duplicative of Citation Nos. 8519719 and 8519720.

VI.  ORDER

In light of the foregoing, it is hereby ORDERED
that Citation No. 8519718 be VACATED.                                                                                                                                                                             

/s/
Alan G. Paez      

Alan
G. Paez

Administrative
Law Judge

Distribution:               

Leslie P. Brody, Esq., U.S. Department of Labor, Office of
the Solicitor, 61 Forsyth Street, S.W., Suite 7T10, Atlanta, GA 30303

Eric A. Johnson, Esq., U.S. Department of Labor, Office of
the Solicitor, 211 Seventh Avenue North, Suite 420, Nashville, TN 37219

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway
Center, Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222

/pjv

[1]
The S&S terminology is taken from section 104(d)(1) of the Mine Act, 30
U.S.C. § 814(d)(1), which distinguishes as more serious any violation that
“could significantly and substantially contribute to the cause and effect of a
. . . mine safety or health hazard.”

[2]
In this decision, the hearing transcript, the Secretary’s exhibits, and Oak
Grove’s exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,”
respectively.

[3]
In the early stages of this proceeding, Church represented the Secretary as a
CLR. Respondent objected to Church’s testimony based on the advocate-witness
rule, but I permitted his testimony. (See Tr. 64:5–72:14.) In its
posthearing brief, Oak Grove again claims I should disregard Church’s
testimony. (Resp’t Br. at 18–20.) Although Oak Grove identifies case law
suggesting a current advocate should not testify as a witness, it is
unclear why Church cannot testify as a witness after he has ceased to
represent the Secretary. Indeed, one of the cases Respondent cites, United
States v. Johnston, specifically suggests withdrawal as a solution to the
advocate-witness problem. 690 F.2d 638, 645 (7th Cir. 1982) (“The most obvious
alternative was for the witness-prosecutor to withdraw from any further
participation in the trial of defendant.”). Despite his early
involvement in the case, Church was no longer the Secretary’s representative at
the time of the hearing. He questioned no witnesses. He made no opening or
closing statement. Accordingly, I conclude that Church’s testimony is properly
part of the record before me.

[4]
In the months preceding Wilkosz’s March 16 inspection, he and other MSHA
inspectors walked past the very same slant cuts in question. (Tr. 56:25–59:15,
149:19–152:6; Ex. R–4.) No citations for wide entries or missing sightlines had
been issued prior to Citation No. 8519718. (Ex. R–4; Tr. 149:19–152:6.)

[5]
Lead Safety Auditor Thomas Fisher and Section Foreman Paul Jamison both
disputed Inspector Wilkosz’s testimony that no sightlines were present. (Tr.
110:23–111:2, 114:20–115:12, 116:13–14, 142:7–23, 145:1–17.) Fisher and Jamison
also testified that they pointed out those sightlines to Wilkosz. (Tr.
117:12–23, 122:11–123:15, 143:5–16, 145:1–17.)

[6]
That same day, Wilkosz also issued Citation No. 8519719, which alleged the
conditions in crosscuts 13, 15, 17, 19, 21, 23, 25, and 29 constituted a
violation of 30 C.F.R. § 75.203(a) for exposing miners to hazards caused by
excessive widths. (Ex. G–4; Tr. 61:17–62:22.) In addition, he issued Citation
No. 8519720 alleging that the conditions in crosscuts 21 and 25 violated 30
C.F.R. § 75.220(a) because they exceeded the permissible width allowed under
the December 28 Plan. (Ex. R–5; Tr. 49:12–50:3, 60:9–61:6.) Wilkosz designated
both citations as S&S and characterized Oak Grove’s negligence as moderate.
Looking at MSHA’s public, online retrieval database, I note that Oak Grove paid
the proposed penalty in both cases.

[7]
Even if I found the Secretary’s interpretation to be reasonable and worthy of
deference, it is unclear whether his application of that interpretation
would be appropriate. Under the Secretary’s theory in this case, “excessive”
widths and “notches” constitute a deviation from the proposed direction of
mining. (Sec’y Br. at 7–8.) I am not convinced such widths demonstrate a
change in the direction of mining. See discussion infra Part
IV.B (addressing alternate explanations for slant widths). However, I need not
decide the issue because I have concluded that the Secretary’s interpretation
is not due any deference.

[8]
I recognize it is counterintuitive to consider the mistakes of inexperienced
miners as a reason to question the Secretary’s suggested inference. Coal mine
operators have a duty to ensure miner safety and should not be “rewarded” for
employing miners who do not adequately perform their duties. Yet here,
Respondent’s explanation simply makes the Secretary’s suggested inference less
likely as a matter of fact. Moreover, Oak Grove’s wide slant cuts did not go
unpunished; indeed, Citation Nos. 8519719 and 8519720 involved these same wide
places and Respondent has paid the Secretary’s proposed penalties for both of
these violations. See supra note 6.