<DOC>
[DOCID: f:lj95.wais]
L & J ENERGY COMPANY, INC.
September 5, 1995
PENN 93-15
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 5, 1995
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket No. PENN 93-15
v. :
:
L & J ENERGY COMPANY, INC., :
BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
ORDER
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.
(1988) ("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 a decision sustaining six of
the seven violations charged. L & J Energy Company Inc., 16
FMSHRC 424 (February 1994).
L & J timely filed a petition for discretionary review
and/or motion for remand for correction of the record,
arguing, inter alia, that a stipulation recounted in the
judge's decision did not reflect the parties'
agreement. In response, the Secretary also moved for
remand. The Commission denied the motions but granted the
petition for review. L & J Energy Company, Inc., 16
FMSHRC 667 (April 1994). Upon consideration, the Commission
remanded the matter to the judge to "determine whether
the stipulation in question is complete and correctly
represents the agreement of the parties." The Commission
also directed the judge to reconsider his decision if
necessary. 16 FMSHRC at 667-668.
On remand, the judge determined 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." L & J Energy Company, Inc., 16
FMSHRC 796 (April 1994). 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.
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., v. Secretary of Labor,
No. 94-1454, slip op. at 4. The court determined that the
judge's legal conclusion "disclaim[ing] reliance on
anything but expert testimony," rendered
"irrelevant" his statement that he reviewed the testimony
of other witnesses. Slip op. at 3., 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 discounted in whole or in part." Id. at
3-4. Finally, the court held that the Commission should
address each of the six statutory criteria for
determining civil penalties "before assessing a fine."
Id., 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.
Pursuant to the court's order, we remand this matter to the
judge for a new determination based on the entire record.
____________________________________
Mary Lu Jordan, Chairman
____________________________________
Joyce A. Doyle, Commissioner
____________________________________
Arlene Holen, Commissioner
____________________________________
Marc Lincoln Marks, Commissioner