<DOC>
[DOCID: f:p93-15.wais]
L & J ENERGY COMPANY, INC.
March 13, 1996
PENN 93-15
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 13, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 93-15
Petitioner : A. C. No. 36-07270-03526
v. :
: Garmantown Mine
L & J ENERGY COMPANY, INC., :
Respondent :
DECISION ON REMAND
Before: Judge Weisberger
On February 24, 1994, I issued a decision in this civil
penalty proceeding sustaining six of the seven violations charged.
L & J Energy Company, Inc., 16 FMSHRC 424 (February 1994). L & J
Energy Company, Inc. (L & J) filed a petition for discretionary
review and/or motion for remand for correction of the record,
arguing, inter alia, that a stipulation which was recounted in
my decision did not reflect the parties' agreement. The
Secretary also moved for remand. The Commission denied the motion,
but granted the petition for review, and remanded the matter to
determine whether the stipulation in question correctly
represented the agreement of the parties, and to reconsider
the decision, if necessary. On remand, I took cognizance of the
parties' agreement, but declined to reconsider the initial
decision. The Commission denied L & J's petition for review.
Subsequently, L & J filed its appeal in the U.S. Court of
Appeals for the District of Columbia Circuit. On June 6,
1995, the Court issued its decision remanding the case to
the Commission "for a new determination based on the full record."
L & J Energy Co., Inc. v. Secretary of Labor, 57 F.3d 1086 (D.C.
Cir. 1995). The Court determined that my legal conclusion
"disclaiming reliance on anything but expert testimony,"
rendered "irrelevant" my statement that I reviewed the
testimony of other witnesses. 57 F.3d, supra, at 1087,
citing 16 FMSHRC at 441. The Court further stated that if, on
remand, the Commission reaches the same conclusion, "it must
simply explain why the eyewitness [i.e., non-expert] testimony
is discredited or disconnected in whole or in part." Id.,
at 1087. Finally, the Court held that the Commission should
address each of the six statutory criteria for determining
civil penalties "before assessing a fine." Id., at 1088,
citing Sellersburg Stone Co., 5 FMSHRC 287, 292-93 (March 1983);
30 U.S.C. � 820(i). On August 8, 1995, the Court issued
its Mandate and Judgment in this matter, returning the case to
the Commission's jurisdiction. On September 5, 1995, the
Commission issued an order remanding this matter to me,
"... for a new determination based on the entire record."
(L & J Energy Co., Inc., 17 FMSHRC 1515, 1517 (September
1955)).
On November 30, 1995, my decision on remand was issued.
L & J filed a petition for review which was denied by the
Commission on January 11, 1996. The Secretary filed a
motion for reconsideration of the denial, and the motion was
granted in part on January 25, 1996.
On February 13, 1996, the Commission issued a decision
remanding this matter to me. The Commission set forth its
conclusion as follows.
We conclude that the judge has not adequately
explained his reasons for discrediting or discounting the
eyewitnesses' testimony. The "experience" and
"expertise" of the experts upon whose testimony the
judge relies do not explain why he discredited the
eyewitnesses' testimony. Further, the judge's reliance
on the discussion of testimony in his earlier decision,
which the court of appeals found to be insufficient,
does not fulfill the remand instructions set forth by
the court and this Commission that he explain the basis
for his treatment of testimony. In addition, if the
judge is of the view of that the inspector's testimony
regarding loose material on the highwall on February 6
renders the eyewitness testimony not credible, he must
explain why. The judge must also explain the
significance, in terms of his evaluation of the
eyewitness testimony, of his reference to lay and
expert witness' recognition of loose materials in
photographs taken on February 6. 17 FMSHRC at 2134.
Finally, the judge must reach a determination on the
record in light of his explanations.
Why the eyewitnesses' testimony is discredited
In essence, Respondent's witnesses testified that they did
not observe any loose or hazardous materials on the highwall on
February 5. However, MSHA and DER inspectors, who observed the
site the next day testified that they observed numerous loose
materials, cracks, mudslips, and material falling from the
highwall. I observed their demeanor, and found their testimony
credible. There is no evidence of any bias or interest on the
part of these witnesses which would dilute the credibility of
their eyewitness testimony. Also, their testimony regarding
conditions they observed on February 6 finds corroboration in the
recognition by Scouazzzo, Todd, and Woods, of loose materials in
photographs taken on February 6. For these reasons I accept the
testimony of Petitioner's eyewitnesses regarding the conditions
of the highwall on February 6. Given this conclusion, the
testimony of Respondent's eyewitnesses must be considered to be
lacking some credibility. Further, the eyewitness testimony of
the conditions on February 5 can be considered trustworthy only
if it is more likely than not that the conditions observed on
February 6 occurred between when the site was observed by
Respondent's witnesses, and when it was examined by the
inspectors on February 6.
The parties elicited opinion testimony from non-expert
witnesses regarding the likelihood of a significant change in the
condition of the highwall between February 5 and February 6.
These witnesses discussed in subjective terms the weather
conditions in the relevant time period and their impact upon the
highwall. Since the lay witnesses did not base their opinions
upon empirical data, I choose to not accord these opinions any
weight. In contrast, the expert witnesses, Scovazzo and Wu,
based their opinions upon detailed empirical weather data set
forth in the testimony and records maintained by Krise. I thus
accord more weight to the testimony of the experts that the
conditions observed on February 6, could have been caused by the
freeze-thaw effect. The weather data does not indicate that a
significant thaw had occurred overnight on February 5, or that
there was any dramatic weather change in the 24 hour period
preceeding February 6 (See, 15 FMSHRC 424 at 443). Indeed,
Krise's data indicates that the high temperatures for
February 3, 4 and 5 were 50 degrees, 56 degrees, and 58 degrees,
respectively. The temperatures throughout these days were all
above freezing. I thus accept Wu's opinion that, in essence,
since there was not an extreme change between a freeze and a thaw
in the two days preceeding February 6, it was not probable that
the conditions depicted in photographs taken on February 6 had
developed in one day. I thus find that it is more likely than
not that the hazardous conditions observed on February 6 did not
occur overnight, and that at least some of those conditions were
in existence on February 5. I thus discredit the eyewitnesses'
testimony regarding conditions observed on February 5.
Accordingly, I reiterate my initial findings regarding the
citations and orders at issue, and penalties to be imposed
(16 FMSHRC, supra, 444-451).
Avram Weisberger
Administrative Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480, Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street,
N.W., Washington, D.C. 20037 (Certified Mail)
/ml