<DOC>
[DOCID: f:knt97302.wais]

 
HUBB CORPORATION
May 25, 2000
KENT 97-302


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          May 25, 2000

SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA)        :
                               :
            v.                 :  Docket No. KENT 97-302
                               :
HUBB CORPORATION               :

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

                            DECISION

BY THE COMMISSION:

     In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger determined that Hubb Corporation ("Hubb") committed
significant and substantial ("S&S") violations of two mandatory
safety standards.  20 FMSHRC 615, 617-19, 620-22 (June 1998)
(ALJ).  He found that the violations were of high gravity and
assessed penalties of $4,000 for each violation.  Id. at 620,
622.  The Commission granted Hubb's petition for discretionary
review challenging the judge's penalty assessments.  For the
following reasons, we vacate the penalty assessments and remand
for reassessment.

     Our decision in this matter is one of three decisions we are
issuing today regarding the Commission's penalty assessment
authority under section 110(i) of the Mine Act, 30 U.S.C.
� 820(i).[1]


**FOOTNOTES**

     [1]  The other decisions concerning Commission penalty
assessments we are issuing today are Cantera Green, Docket No. SE
98-141-M, and Douglas R. Rushford Trucking, Docket No. YORK 99-
39-M.

                               I.

                Factual and Procedural Background

     On November 7, 1996, Inspector William R. Johnson of the
Department of Labor's Mine Safety and Health Administration
("MSHA") inspected the 005 Section at Hubb's No. 5 Mine in Perry
County, Kentucky, and found that the ventilation deflector
curtain in the No. 7 heading was 66 feet beyond the deepest point
of penetration of the working face.  20 FMSHRC at 617; G. Ex. 5
at 7.  He issued a section 104(d)(1) order (No. 4582535) alleging
an S&S violation of 30 C.F.R. � 75.370(a)(1)[2] due to Hubb's
unwarrantable failure to follow its approved ventilation plan,
which provided that the maximum distance from the end of the
ventilation curtain to the point of deepest penetration of the
working face should be 40 feet.  20 FMSHRC at 617, 619-20; G. Ex.
5 at 8.

     Also on November 7, Inspector Johnson observed two blocks of
rib in the No. 6 entry that were loose from the wall.  20 FMSHRC
at 620.  One block was 15 feet long, 6 feet high, and 1 foot
thick, and was located just inby the last open crosscut.  Id.
The other block was 10 feet long, 4 feet high, and 1 foot thick,
and was located just inby the next-to-last open crosscut.  Tr.
287; G. Ex. 7.  The inspector issued a section 104(d)(1) order
(No. 4582536) alleging an S&S violation of 30 C.F.R. �
75.202(a)[3] resulting from Hubb's unwarrantable failure.  20
FMSHRC at 620, 622.  The Secretary of Labor proposed $6,000 and
$6,500 penalties for the ventilation and rib violations,
respectively.  S. Pet. Assessment of Penalty, Ex. A.  Although
Hubb did not dispute either violation, it did dispute the
Secretary's S&S and unwarrantable failure designations for both
violations.  H. Post-hearing Br. at 15-16, 19-20.

     The judge determined that Hubb violated 30 C.F.R. 
� 75.370(a)(1) by failing to follow the approved ventilation plan.
20 FMSHRC at 617.  He concluded that the violation was S&S
because of the lack of adequate ventilation at the face, the
mine's history of methane releases, the possibility of an
explosion caused by sparks created by the continuous miner's bits
and, in the event of an explosion, the possibility of injury to
seven miners.  Id. at 617-18.  The judge determined that, because
Hubb management was not aware of the violation prior to citation,
the violation was not the result of unwarrantable failure, and he
modified the order to a section 104(a) citation that was S&S.
Id. at 620.  He found that the violation resulted from "more than
moderate" negligence and was of a high degree of gravity, in that
it could have resulted in miners suffering serious burns or
suffocation.  Id.  The judge assessed a penalty of $4,000.  Id.

     The judge found that Hubb violated 30 C.F.R. � 75.202(a) by
failing to adequately ensure that the two blocks of rib would not
fall on persons traveling or working nearby.  20 FMSHRC at 620.
He determined that the rib violation was S&S because it exposed
miners to possible rib falls.  Id. at 621.  However, he concluded
that, because Hubb management was not aware of the violation
prior to citation, the violation was not due to unwarrantable
failure, and he amended the order to a section 104(a) citation
that was S&S.  Id. at 621-22.  The judge determined that the
violation resulted from "not more than moderate" negligence but
was of a high degree of gravity, in that it could have resulted
in a fatality.  Id. at 622.  The judge assessed a penalty of
$4,000.  Id.

                               II.

                           Disposition

     Hubb first argued that the judge erred in assessing $4,000
penalties for each violation because he did not make findings
sufficient to waive the assessment formula under 30 C.F.R.
� 100.3, and assess the penalty under 30 C.F.R. � 100.5.  H. Br.
at 4-6.  The Secretary responded that, because 30 C.F.R. Part 100
is only binding on the Secretary and not Commission judges, the
judge acted within his discretion in assessing a $4,000 penalty
for each violation.  S. Br. at 6-15.  In its reply brief, Hubb
acknowledges that the judge could not have assessed the penalties
under 30 C.F.R. Part 100.  H. Reply Br. at 1.  However, Hubb
argues that the judge was required to consider the criteria
listed in section 110(i) of the Mine Act, 30 U.S.C. � 820(i),[4]
when assessing the penalties, and that he failed to consider the
criterion of good faith in attempting to achieve rapid compliance
as applied to Hubb.  H. Reply Br. at 1.

     Hubb also asserts that substantial evidence does not support
the judge's findings that the ventilation and rib violations were
of high gravity and could have resulted in serious injuries or
fatalities.  H. Br. at 7-8.  Regarding the ventilation violation,
Hubb contends that there was no danger of a serious injury or
fatality because no methane was present at the time of the
violation.  Id. at 7.  Regarding the rib violation, Hubb argues
that there was no likelihood of any fatalities from a rib fall
because of the size of the rib blocks in question and the fact
they were hard to remove.  Id. at 8; H. Reply Br. at 4-5.

     The Secretary contends that the judge found correctly that
there was high gravity associated with the ventilation violation
because the mine had a history of methane releases and sparks
from the bits of the continuous miner "created a reasonable
likelihood of an explosion [that] would likely cause a serious or
fatal injury . . . ."  S. Br. at 11-12.  The Secretary also
argues that the judge determined correctly that the rib violation
involved high gravity because it was undisputed that there were
cracks around the cited ribs and that miners traveled close to
the cited ribs.  Id. at 12-15.  She requests that the Commission
affirm the judge's decision in its entirety.  Id. at 16.

     In reviewing a judge's penalty assessment, the Commission
must determine whether the penalty is supported by substantial
evidence and is consistent with the statutory penalty
criteria.[5]  While "a judge's assessment of a penalty is an
exercise of discretion, assessments lacking record support,
infected by plain error, or otherwise constituting an abuse of
discretion are not immune from reversal . . . ."  U.S. Steel
Corp., 6 FMSHRC 1423, 1432 (June 1984).

A.  Gravity

     The gravity penalty criterion contained in section 110(i) of
the Mine Act requires an evaluation of the seriousness of the
violation.  Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept.
1996); Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983),
aff'd, 736 F.2d 1147 (7th Cir. 1984).  In evaluating the
seriousness of a violation, the Commission has focused on "the
effect of the hazard if it occurs."  Consolidation Coal Co., 18
FMSHRC at 1550.  The judge's discussions of gravity are
admittedly terse.  Nevertheless, we conclude that his findings
are sufficient to support his conclusions of high gravity for
both violations.

     1.  Ventilation Violation

     We are not persuaded by Hubb's contention that the absence
of methane at the time of the inspection, and that the continuous
miner will automatically cut off power if 2 percent or more
methane is detected, requires the Commission to reverse the
judge's high gravity finding.  The judge accepted Inspector
Johnson's uncontradicted testimony that the mine had a history of
methane releases, that during the ventilation violation there was
a lack of adequate ventilation at the face, that sparks from the
continuous miner provided ignition sources, and that in the event
of an explosion, seven miners could have suffered burns.  20
FMSHRC at 617-20.  MSHA Inspector Darlus Day also gave
uncontradicted testimony that additional ignition sources
sometimes occur when sparks are caused by rocks or roof bolts
falling from the roof and striking rocks on the ground.  Tr. 370,
385, 398.  Accordingly, we find that substantial evidence
supports the judge's high gravity determination.[6]

     2.  Rib Violation

     We disagree with Hubb's argument that, because the cited rib
blocks were small, hard to remove, and unlikely to fall,
substantial evidence does not support the judge's finding that
the rib violation was of a high degree of gravity.  H. Br. at 8;
H. Reply Br. at 4.  The judge considered Inspector Johnson's
uncontradicted testimony that cracks ran the length of the
blocks.  20 FMSHRC at 620-21.  He noted that Johnson had
previously investigated rib falls that had resulted in injuries
and fatalities and that Johnson believed that the cited blocks
might fall.  Id. at 620.  He further considered Johnson's
testimony that all miners in the unit passed near the cited
blocks in shuttle cars and, although the shuttle cars had
canopies, the miners inside could still be injured by falling rib
because the sides were open.  Id.  The judge also noted that
neither section foreman "[Scott] Day nor Denny Whitaker, Hubb's
superintendent, contradicted or impeached Johnson's testimony
regarding the exposure of miners to the hazard contributed to by
the violation at issue."  Id. at 619, 621.  We find that the
evidence relied on by the judge constitutes substantial evidence
which supports his determination that the rib violation was of
high gravity.[7]

B.  Abatement, Violation History, Size, and Effect on Ability to
Continue in Business

     1.  Motion to Strike

     The Secretary filed a motion to strike those portions of
Hubb's reply brief that argue the judge failed to consider Hubb's
good faith in achieving rapid compliance under section 110(i).
S. Mot. to Strike at 1.  She contends that the issue is not
before the Commission because Hubb did not raise it in its
petition for discretionary review.  Id.  In response to the
Secretary's motion to strike, Hubb argues that it raised the good
faith criterion under section 110(i) because it raised a similar
good faith requirement in its original brief when it discussed
the penalty assessment requirements of section 100.3(f).  H.
Resp. to Mot. to Strike at 1-2.

     Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. 
� 823(d)(2)(A)(iii), and Commission Procedural Rule 70(g), 29
C.F.R. � 2700.70(f), provide that Commission review is limited to
the questions raised in a granted petition for discretionary
review or by the Commission sua sponte.  See Wyoming Fuel Co., 16
FMSHRC 1618, 1623 (Aug. 1994), aff'd, 81 F.3d 173 (10th Cir.
1996) (table) (holding that Commission "review is limited to the
questions raised in the petition and by the Commission sua
sponte"); Broken Hill Mining Co., 19 FMSHRC 673, 678 n.9 (Apr.
1997) (same).

     As the Secretary points out, instead of citing the abatement
penalty criterion under section 110(i) in its petition, Hubb
mistakenly discussed the abatement penalty criterion under
sections 100.3 and 100.5.  H. PDR at 6-8.  It is well settled
that the Commission assesses penalties de novo and is not bound
by the Secretary's Part 100 regulations.  Topper Coal Co., 20
FMSHRC 344, 350 n.8 (Apr. 1998); Sellersburg, 5 FMSHRC at 291,
aff'd, 736 F.2d at 1152.  The first time Hubb referenced the
section 110(i) penalty criteria was in its reply brief.

     The abatement penalty criteria in section 100.3(a)(5) and in
section 110(i), however, share virtually identical language.  The
good faith penalty criterion is described in section 100.3(a)(5)
as "[t]he demonstrated good faith of the operator charged in
attempting to achieve rapid compliance after notification of a
violation" (30 C.F.R. � 100.3(a)(5)) while in section 110(i) it
is described as "the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation" (30 U.S.C. � 820(i)).  In view of
the complete substantive overlap of the two provisions, we find
that Hubb's discussion of the penalty criteria under section
100.3 in its petition was sufficiently related to the good faith
penalty criterion under section 110(i) to conclude that Hubb
raised the criterion in its petition.  See Rock of Ages Corp., 20
FMSHRC 106, 115 n.11 (Feb. 1998), aff'd in part on other grounds,
170 F.3d 148 (2d Cir. 1999) (holding that, although not
explicitly discussed in petition, issue was raised because it was
sufficiently related to another issue raised in petition); Fort
Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514 & n.4 (Sept.
1997) (finding that issue was raised in petition by implication).
Therefore, we deny the Secretary's motion to strike those
portions of Hubb's reply brief that argue the judge failed to
consider Hubb's good faith in achieving rapid compliance under
section 110(i).

     2.  Consideration of the Section 110(i) Penalty Criteria

     As a general rule, Commission judges are accorded broad
discretion in assessing civil penalties under the Mine Act.
Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986).  We have
held, however, that such discretion is not unbounded and must
reflect proper consideration of the penalty criteria set forth in
section 110(i) and the deterrent purpose of the Act.  Id. (citing
Sellersburg, 5 FMSHRC at 290-94).  In Sellersburg, we stated
unequivocally that "[w]hen an operator contests the Secretary's
proposed assessment of penalty, thereby obtaining the opportunity
for a hearing before the Commission, findings of fact on the
statutory penalty criteria must be made."  5 FMSHRC at 292
(emphasis added).  In addition, our Procedural Rules also make
this duty unequivocally clear.  Rule 30(a) provides:

          In assessing a penalty the Judge shall determine the
     amount of penalty in accordance with the six statutory
     criteria contained in section 110(i) . . . and incorporate
     such determination in a written decision.  The decision
     shall contain findings of fact and conclusions of law on
     each of the statutory criteria and an order requiring that
     the penalty be paid.

29 C.F.R. � 2700.30(a) (emphasis added).

     The requirement that our judges make findings of fact on
each of the section 110(i) penalty criteria serves two important
and distinct purposes.  First, from a strictly due process
standpoint, these findings provide the respondent and the
regulated community with the appropriate notice as to the basis
upon which the penalty is being assessed.  Sellersburg, 5 FMSHRC
at 292-93.  Second, findings of fact on the section 110(i)
penalty criteria supply the Commission and any reviewing court
with the information needed to accurately determine if the
penalties assessed by the judge are appropriate, excessive, or
perhaps insufficient.  Id.  This is consistent with the broader
requirement that "[a] judge must analyze and weigh the relevant
testimony of record, make appropriate findings, and explain the
reasons for his decision."  Mid-Continent Resources, Inc., 16
FMSHRC 1218, 1222 (June 1994).  As the Commission explained in an
earlier decision:  "Our function is essentially one of review.
Without findings of fact and some justification for the
conclusions reached by the judge, we cannot perform that function
effectively."  Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981)
(citations omitted).

     This latter purpose is particularly important in the instant
case, where the judge made a significant reduction in the
penalties he assessed ($4,000 per violation) from the penalty
amount proposed by the Secretary ($6,500 and $6,000).  As a
unanimous Commission stated in Sellersburg:

     When . . . it is determined that penalties are appropriate
     which substantially diverge from those originally proposed,
     it behooves the Commission and its judges to provide a
     sufficient explanation of the bases underlying the penalties
     assessed by the Commission.  If a sufficient explanation for
     the divergence is not provided, the credibility of the
     administrative scheme providing for the increase or
     lowering of penalties after contest may be jeopardized by
     an appearance of arbitrariness.

5 FMSHRC at 293.

     Despite the Commission's clear mandate in Sellersburg and
related cases, and in its Procedural Rules, we have repeatedly
found it necessary to remand cases for penalty assessments
because judges have failed to enter the requisite findings.  See,
e.g., Secretary of Labor on behalf of Hyles v. All American
Asphalt, 21 FMSHRC 119, 142 (Feb. 1999); Rock of Ages, 20 FMSHRC
at 126; Secretary of Labor on behalf of Glover v. Consolidation
Coal Co., 19 FMSHRC 1529, 1539 (Sept. 1997); Fort Scott, 19
FMSHRC at 1518; Thunder Basin Coal Co., 19 FMSHRC 1495, 1502-03
(Sept. 1997).  In the majority of cases heard under the Act,
records are developed on the section 110(i) criteria and
penalties are assessed properly and efficiently.  Cases in which
this does not occur, however, have become frequent enough to give
us pause.  We intend that the three decisions we issue today will
convey our message that it is imperative that this Commission
avoid giving short shrift to our statutory duty to assess Mine
Act penalties under section 110(i).

     Therefore, we remand this case for reassessment of civil
penalties because the judge failed to make findings on several of
the section 110(i) penalty criteria, in accordance with the
express requirements of the Mine Act.  We agree with Hubb that,
as to both violations, the judge did not make findings on the
operator's good faith in achieving rapid compliance when he
assessed penalties under section 110(i).[8]  Furthermore, as to
both violations, the judge made no findings on the operator's
size, effect on ability to continue in business, and history of
violations[9] penalty criteria under section 110(i).  We also
note that at trial the Secretary did not introduce adequate
evidence or advance any arguments on the section 110(i) criteria.

     Accordingly, we vacate the penalties imposed for the two
violations and remand for entry of detailed findings as to each
of the six section 110(i) criteria and reassessment of an
appropriate penalty for each violation.


**FOOTNOTES**

     [2]  30 C.F.R. � 75.370(a)(1) states in pertinent part that
"[t]he operator shall develop and follow a ventilation plan
approved by the [MSHA] district manager."

     [3]  30 C.F.R. � 75.202(a) states in pertinent part that
"[t]he roof, face and ribs of areas where persons work or travel
shall be supported or otherwise controlled to protect persons
from hazards related to falls of the roof, face or ribs . . . ."

     [4]  Section 110(i) sets forth six criteria to be
considered in the assessment of penalties under the Act:

     [1] the operator's history of previous violations, [2] the
     appropriateness of such penalty to the size of the business
     of the operator charged, [3] whether the operator was
     negligent, [4] the effect on the operator's ability to
     continue in business, [5] the gravity of the violation, and 
     [6] the demonstrated good faith of the person charged in 
     attempting to achieve rapid compliance after notification of 
     a violation.

30 U.S.C. � 820(i).

     [5]  When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
� 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'"  Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [6]  Although the gravity penalty criterion and a finding
of S&S are not identical, they are frequently based upon the same
or similar factual circumstances.  Quinland Coals, Inc., 9
FMSHRC 1614, 1622 n.11 (Sept. 1987).  The judge's uncontested S&S
findings concerning the likelihood of an explosion and the
severity of the resulting injuries (see 20 FMSHRC at 617-19)
provide further support for the judge's high gravity
determination.

     [7]  As with the curtain violation, the judge's uncontested
S&S findings (see 20 FMSHRC at 621) provide further support for
the judge's high gravity determination for the rib violation.

     [8]  Chairman Jordan notes that although the judge erred by
failing to even acknowledge the need to consider the operator's
"demonstrated good faith . . . in attempting to achieve rapid
compliance after notification of a violation" (30 U.S.C. �
820(i)), she believes this factor carries little weight in the
instant case.  Since the operator in this case received a
withdrawal order, not merely a citation, it could not resume
normal operations until it had achieved compliance.  In light of
this fact, Chairman Jordan believes prompt abatement should not
serve as a mitigating factor.

     [9]  Although the judge stated that he took "into account
Hubb's history of violations" when assessing the ventilation
violation (20 FMSHRC at 620), he failed to make any separate
findings of fact, as required by section 110(i), concerning
Hubb's previous violations.  When he makes such a finding on
remand, we direct him to review Hubb's previous violations and
enter a qualitative finding rather than merely bare information
on the number of Hubb's violations.  See Secretary of Labor on
behalf of Hannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1305
n.14 (Dec. 1998).

                              III.

                           Conclusion

     For the foregoing reasons, we vacate the penalty assessments
for both violations and remand for reassessment for both
violations.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner


Distribution

Gene Smallwood, Jr., Esq., Polly & Smallwood, P.O. Box 786,
Whitesburg, KY 41858

W. Christian Schumann, Esq., Office of the Solicitor, U.S. 
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington, 
VA 22203

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