.
L & J ENERGY COMPANY, INC.
February 13, 1996
PENN 93-15
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
February 13, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 93-15
:
L & J ENERGY COMPANY, INC. :
BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners
DECISION
BY THE COMMISSION:
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"), involves citations and orders issued by the Department
of Labor's Mine Safety and Health Administration to L & J Energy
Company, Inc. ("L & J"). Following an evidentiary hearing,
Administrative Law Judge Avram Weisberger issued his decision
sustaining six of the seven violations charged. 16 FMSHRC 424
(February 1994) (ALJ). L & J filed a petition for discretionary
review of that decision, arguing that a stipulation as to certain
testimony recounted in the judge's decision did not reflect the
parties' agreement. The Commission granted the petition and remanded
the matter to the judge to determine whether the stipulation accurately
reflected the parties' agreement. 16 FMSHRC 667, 667-68 (April 1994).
The Commission also directed that the judge, upon so doing, reconsider
his decision if necessary. Id. at 668.
The judge determined on remand that L & J was correct in its
assertion that the stipulation did not reflect the parties' agreement,
which provided that the judge "would utilize the fact testimony from
witnesses, other than [expert witnesses] Wu and Scovazzo, who observed
the condition of the highwall." 16 FMSHRC 796 (April 1994) (ALJ).
The judge declined to reconsider his decision because "the decision
takes cognizance of, and discusses, the testimony of witness (sic) other
than Scovazzo and Wu, who had observed the highwall." Id. The Commission
denied L & J's petition for review of the judge's decision on remand.
L & J appealed the judge's decision on remand to the U.S.
Court of Appeals for the District of Columbia Circuit. The court
remanded the case to the Commission "for a new determination based
on the full record." L & J Energy Co, v. Secretary of Labor, 57 F.3d
1086, 1088 (1995). The court determined that the judge's legal
conclusion "disclaim[ing] reliance on anything but expert testimony"
rendered "irrelevant" his statement that he had reviewed the testimony
of other witnesses. Id. at 1087. 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 discounted in whole or in part." Id. The court also 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 September 5, 1995, the Commission remanded the
case to the judge "for a new determination based on the entire record."
17 FMSHRC 1515, 1517 (September 1995).
In his second decision on remand, issued on November 30, 1995,
the judge stated with respect to his evaluation of the non-expert
testimony:
In evaluating the issue of whether
dangerous conditions existed on the highwall
prior to the accident, I discount the tes-
timony of the eyewitnesses who testified on
behalf of L & J, and instead rely upon the
expert testimony due to the experience and
expertise of the experts who testified. An
evaluation of the experts' testimony is set
forth in my initial decision, 16 FMSHRC
supra, at 443. In addition, as set forth in
my initial decision, 16 FMSHRC, supra, at
443, the testimony of L & J's witnesses is
discredited because the inspector's testimony
that on February 6, loose material covered at
least 75 percent of the highwall, was not
contradicted or impeached. Also, L & J's
expert witness Scovazzo, and lay witnesses
Todd and Woods recognized the depiction of
some loose materials in photographs taken the
morning of February 6.
17 FMSHRC 2133, 2134 (November 1995) (ALJ).
L & J again petitioned for review. The Secretary supported
L & J's petition to the extent that it challenged the judge's
failure to explain his decision to credit the testimony of the
expert witnesses over that of the eyewitnesses. Review of that
issue was granted by the Commission and briefing was stayed.
We conclude that the judge has not adequately explained his
reasons for discrediting or discounting the eyewitness testimony.
The "experience" and "expertise" of the experts upon whose
testimony the judge relies do not explain why he discredited the
eyewitness 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 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 witnesses' 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.
For the foregoing reasons, we remand this matter to the
judge for further consideration consistent with this opinion.
________________________________
Mary Lu Jordan, Chairman
________________________________
Joyce A. Doyle, Commissioner
________________________________
Arlene Holen, Commissioner
________________________________
Marc Lincoln Marks, Commissioner
________________________________
James C. Riley, Commissioner