.
CANNELTON INDUSTRIES, INC.
October 9, 1998
WEVA 94-381
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 9, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-381
Petitioner : A.C. No. 46-06051-03689
v. :
: Stockton Mine
CANNELTON INDUSTRIES, INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 95-100
Petitioner : A.C. No. 46-06051-03698-A
v. :
: Stockton Mine
CHARLES PATTERSON, Employed by :
CANNELTON INDUSTRIES, INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 95-101
Petitioner : A.C. No. 46-06051-03697-A
v. :
: Stockton Mine
GEORGE RICHARDSON, Employed by :
CANNELTON INDUSTRIES, INC., :
Respondent :
FINAL DECISION ON REMAND
Before: Judge Hodgdon
On August 27, 1998, I issued a remand decision in these
cases finding that the company unwarrantably failed to comply
with section 75.400 of the regulations, 30 C.F.R. � 75.400, and
that company foremen Patterson and Richardson knowingly
authorized the violation, subjecting them to individual liability
under section 110(c) of the Act, 30 U.S.C. � 820(c). Cannelton
Industries, Inc. et al, 20 FMSHRC 880 (August 1998). However,
because information concerning Patterson's and Richardson's
income, family support obligations or ability to pay a penalty
had not been presented at the hearing, the parties were given an
opportunity to present such evidence before I issued a final
decision. Id. at 887. That evidence has now been submitted and
the parties have had an opportunity to comment on it.
Motion for Reconsideration and to Reopen the Record
and Motion to Stay Remand Proceedings
In addition to submitting financial information, the
Respondents have also filed a Motion for Reconsideration and to
Reopen the Record and Motion to Stay Remand Proceedings. These
motions are based on two pieces of evidence which were in the
possession of Respondent's counsel during the hearing, but which
he neglected to offer into evidence. Stating that this case was
counsel's first before the Commission and citing Rule 60(b) Fed.
R. Civ. P., the Respondents request that I reconsider my
decision, reopen the record to take additional evidence and stay
the remand proceedings to do so. For the reasons set forth
below, the motions are denied.
Respondents attempted to have the same evidence considered
by the Commission when the case was before it on appeal. The
reasons offered for seeking such consideration were the same ones
now presented to me. The Commission denied the request.
Cannelton Industries, Inc. et al, 18 FMSHRC 1597 (September
1996). Thus, that decision is the law of this case.
Furthermore, even if the Commission's decision were not
binding, I would deny the motions. As the Secretary has
forcefully demonstrated in her brief opposing the motions, the
evidence is not admissible. Finally, even if the evidence were
admissible, it would not change my decision. While it may have
some tendency to support the company's case, it falls far short
of rebutting the Secretary's case. Accordingly, the motions to
reconsider, reopen and stay are DENIED.
Civil Penalty Assessments
Both Patterson and Richardson have submitted their
employment and financial status in the form of affidavits.
Patterson states that he is 53 and still employed in the coal
mining industry, although he believes that he may have to retire
because his "job security is reduced due to developments that may
lead to mine closure." Affidavit of September 18, 1998. He
relates that in addition to his wife, he is also providing
financial assistance to his mother, mother-in-law, daughter, son
and brother. Id. Patterson asserts that his current income,
after taxes, is $3,700.00 per month and that he has monthly
expenses of $3,545.00 per month. Id.
Richardson states that he is 54 and has not "worked in coal
mining employment since April 27, 1994 and cannot return to such
employment due to my medical disabilities." Affidavit of
September 17, 1998. He claims that his only income is $2,943.00
per month from Social Security Disability payments and a Long
Term Disability Program and that he has monthly expenses of
$3,106.09 per month. Id.
The Secretary states that "MSHA has no evidence that either
of the named individuals has any prior history of knowingly
violating the Mine Act or its regulations." Letter of
September 21, 1998. The Secretary did not file any comments on
the submissions of Patterson and Richardson.
Following the guidance in Sunny Ridge Mining Co., 19 FMSHRC
254, 272 (February 1997), I find that the gravity of this
violation was serious, that the Respondents' negligence was very
high, that the violation was abated in good faith, that neither
Patterson nor Richardson has any previous history of 110(c)
violations and that both were shift foremen. With respect to
Patterson, I find that his income and family support obligations
are as set out in his affidavit.
I have more trouble making a finding concerning Richardson's
income and support obligations. His affidavit does not state
whether or not he is married. Moreover, it contains a statement
which seriously affects his credibility. He states that he was
last employed in mining on April 27, 1994. However, at the
hearing on October 12, 1995, he testified that at that time he
was employed as an "acting shift foreman" by Cannelton
Industries. (Tr. 247.) Consequently, the accuracy of his
affidavit is questionable and raises the concern of whether his
failure to reveal his marital status, which could have been an
innocent omission, may have been deliberate.
In this regard, I note that Richardson claims to have two
car payments of $385.00 and $487.00, respectively. Affidavit of
September 17, 1998. If he is not married and he is, in fact,
spending more each month than he takes in, such expenditures
would appear to be an unessential extravagance.
The significance of this omission is that if he is married,
I cannot perform the two step analysis of his financial position
required by the Commission in Wayne R. Steen, 20 FMSHRC 381, 385
(April 1998), because I cannot determine either Richardson's
household financial condition or his share of the household's net
worth, income and expenses. Thus, I cannot make any findings on
his "size" or "ability to continue in business." Id.
The remedy for this circumstance is not to further delay
this case by requesting additional information, but to find that,
by failing to submit accurate information when given the
opportunity to do so, his "ability to continue in business" will
not be affected by the imposition of an authorized penalty in
this case. The Commission has previously held with respect to
operators that "[i]n the absence of proof that the imposition of
authorized penalties would adversely affect [an operator's]
ability to continue in business, it is presumed that no such
adverse [e]ffect would occur." Sellersburg Stone Co., 5 FMSHRC
287, 294 (March 1983), aff'd. 736 F.2d 1147 (7th Cir. 1984);
accord Broken Hill Mining Co., 19 FMSHRC 673, 677 (April 1997);
Spurlock Mining Co., 16 FMSHRC 697, 700 (April 1994). There does
not appear to be any reason that the same presumption should not
also apply to 110(c) respondents.
Therefore, I find that, since Richardson has not credibly
established his income and family support obligations, his
ability to pay or the affect a penalty will have on them, he will
not be adversely affected by the imposition of a penalty.
Considering all of the penalty factors, I conclude that a civil
penalty of $300.00 is appropriate.
Returning to Patterson, I find that a civil penalty of
$300.00 is also appropriate for him.. This finding is based on
the fact that his affidavit indicates a surplus of $155.00 per
month and that he attributed expenditures of $100.00 per month to
"recreation," $166.00 per month as "[c]ontribution to saving for
yearly vacation to the beach" and $100.00 per month as
"[c]ontribution to saving for yearly vacation to the lake," which
indicate that payment will not require him to forego the
necessities of living.
It is apparent that both Respondents are of limited
financial means. Accordingly, I will direct that the penalties
be paid in instalments consistent with their individual
circumstances.
ORDER
Cannelton Industries, Inc. is ORDERED TO PAY a civil penalty
of $3,600.00 within 30 days of the date of this order. Charles
Patterson is ORDERED TO PAY a civil penalty of $300.00 in six
monthly instalments of $50.00 per month, the first payment to be
made within 30 days of the date of this order. George Richardson
is ORDERED TO PAY a civil penalty of $300.00 in 12 monthly
instalments of $25.00 per month, the first payment to be made
within 30 days of the date of this order. With respect to
Patterson and Richardson, failure to make any payment as
scheduled will result in the entire, unpaid balance becoming
immediately due and payable, together with such court costs as
may be incurred by the U.S. Department of Labor in collecting
such amounts. On receipt of payment by Cannelton and receipt of
final payment by Patterson and Richardson, these cases are
DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
David J. Hardy, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553,
Charleston, WV 25322
(Certified Mail)
Robert S. Wilson, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
4015 Wilson Boulevard, Suite
516 Arlington, VA 22203
(Certified Mail)
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