<DOC>
[DOCID: f:weva94381.wais]
CANNELTON INDUSTRIES, INC.
July 27, 1998
WEVA 94-381
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 27, 1998
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEVA 94-381
: WEVA 95-100
CANNELTON INDUSTRIES, INC., : WEVA 95-101
CHARLES PATTERSON, and :
GEORGE RICHARDSON :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and
Beatty, Commissioners
DECISION
BY: Riley, Verheggen, and Beatty, Commissioners
These consolidated civil penalty proceedings, arising
under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq. (1994) ("Mine Act" or "Act"), involve
a citation issued to Cannelton Industries, Inc. ("Cannelton")
alleging an unwarrantable and significant and substantial
("S&S") violation of 30 C.F.R. � 75.400[1] for failure to
clean up an accumulation of coal under a conveyor belt, and
related allegations that Charles Patterson and George
Richardson, shift foremen for Cannelton, were personally
liable under section 110(c) of the Mine Act, 30 U.S.C.
� 820(c), for knowingly authorizing the violation.
Administrative Law Judge T. Todd Hodgdon concluded that
Cannelton violated section 75.400 and that the violation
was S&S and the result of unwarrantable failure. 18 FMSHRC
651, 654-59 (Apr. 1996) (ALJ). He also concluded that
Patterson and Richardson knowingly authorized the violation
by not taking steps to have the accumulation cleaned up.
Id. at 659-61. For the reasons that follow, we affirm the
judge's finding of violation, vacate his unwarrantable
failure and section 110(c) findings, and remand for further
proceedings.
**FOOTNOTES**
[1]: Section 75.400 states:
Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose
coal, and other combustible materials, shall
be cleaned up and not be permitted to
accumulate in active workings, or on electric
equipment therein.
I.
Factual and Procedural Background
On March 1, 1994, Michael Hess, an inspector with the
Department of Labor's Mine Safety and Health Administration
("MSHA"), conducted a quarterly inspection of Cannelton's
Stockton Mine (Portal Nos. 1 and 130), an underground coal
mine in Kanawha County, West Virginia. 18 FMSHRC at 652;
Gov't Ex. 1. At that time, Cannelton was constructing a new
section to reroute its No. 3 conveyor belt, and coal was
being mined at the face, loaded into shuttle cars, and dumped
into a temporary feeder on the conveyor belt. 18 FMSHRC at
652; Tr. 250-52, 259, 325-27. While inspecting the conveyor
belt, Hess found an accumulation of dry, loose coal and coal
dust that measured approximately 10 feet square and 4 feet
deep, which was in contact with the belt and roller. 18
FMSHRC at 652-53; Tr. 41-44, 49-50; Gov't Exs. 1 & 5 at 3.
The accumulation was located under the V-scraper, a device
that removes coal from the bottom, or return, belt. 18
FMSHRC at 652-53 & n.1; Tr. 60, 181-82, 256-57, 325, 384.
Upon reviewing the preshift-onshift mine examination reports,
Inspector Hess found that, under the section entitled
"Violations and other Hazardous Conditions Observed and
Reported," the No. 3 belt V-scraper had been reported as
"dirty" or "needs clean[ing]" on every shift during the
previous 2 weeks with no indication that any corrective
action had been taken. 18 FMSHRC at 653; Tr. 45-46, 50,
53, 66; Gov't Exs. 1, 9 & 15. As shift foremen, both
Patterson and Richardson had reviewed and countersigned
the preshift-onshift reports. 18 FMSHRC at 658, 660;
Gov't Exs. 9 & 15.
Based on the foregoing, Inspector Hess issued Cannelton
Citation No. 4195028,[2] pursuant to section 104(d)(1) of the
Mine Act, 30 U.S.C. � 814(d)(1), alleging an unwarrantable and
S&S violation of section 75.400 for failure to clean up the
accumulation. 18 FMSHRC at 653. Subsequently, the Secretary
of Labor proposed a civil penalty assessment of $3,600 against
Cannelton. Id. at 661; Gov't Ex. 6. In addition, following
a special investigation, the Secretary proposed civil penalty
assessments of $2,000 each against Patterson and Richardson,
pursuant to section 110(c) of the Mine Act, alleging that, by
countersigning the preshift-onshift reports and failing to take
corrective action, they knowingly authorized the violation. 18
FMSHRC at 653, 659-61; Gov't Exs. 11 & 12. Cannelton, Patterson,
and Richardson challenged the proposed assessments.
Following an evidentiary hearing, the judge concluded
that Cannelton violated section 75.400, that the violation
was S&S, and that it resulted from Cannelton's unwarrantable
failure to comply with the standard. 18 FMSHRC at 654-59.
He also concluded that Patterson and Richardson knowingly
authorized the violation by not taking steps to have the
accumulation cleaned up. Id. at 659-61. In analyzing the
issue of violation, the judge found that "there is no dispute
that an accumulation of coal, as described by Inspector Hess,
existed in the area of the V-scrapper [sic] on the No. 3
belt." Id. at 654. The judge further found that the
accumulation had grown over a 2-week period of time. Id.
at 654-55. He based this finding on the testimony of Dwight
Siemiaczko, Lee Tucker, and Sheldon Craft, the belt examiners
who had noted that the No. 3 belt V-scraper was dirty in the
preshift-onshift reports throughout the 2-week period. Id.
The judge discredited the testimony of Patterson, Richardson,
and Mickey Elkins, the shift foremen, that the accumulation
had happened a short time before the inspector arrived.
Id. at 655-56. In crediting the testimony of the belt
examiners over that of the shift foremen, the judge stated:
The three foremen theorized that the
accumulation discovered by Hess was the
result of a shuttle car hitting the spill
board at the belt feeder which in turn
knocked the belt out of alignment and caused
most of the coal to fall directly onto the
bottom belt where it remained until it was
removed by the V-scrapper [sic]. They
believed that this must have happened a short
time before the inspector arrived.
I find that the accumulation developed
over a two week period as described by
Siemiaczko, Tucker and Craft. There is no
evidence that any of them had any reason not
to tell the truth. Nor was there any
indication at the hearing that they were not
credible.
On the other hand, Richardson and
Patterson not only have the responsibility
for defending the company, but face personal
liability as well. Their self-serving
statements are not persuasive when compared
with the other evidence in the case.
Furthermore, there is no evidence to
corroborate their speculation.
Id. at 655. With regard to the issues of unwarrantable
failure and section 110(c) liability, the judge found that,
because Patterson and Richardson had countersigned the
preshift-onshift reports, Cannelton had been placed on notice
that greater efforts were necessary for compliance and
Patterson and Richardson had known about the accumulation.
Id. at 658-61. He also found that Cannelton, Patterson,
and Richardson did not make any effort to clean up the
accumulation. Id. at 658-61. The judge assessed civil
penalties of $3,600 for Cannelton and $500 each for
Patterson and Richardson. Id. at 661-62. The Commission
granted the petition for discretionary review ("PDR")
subsequently filed by Cannelton, Patterson, and Richardson
challenging the judge's decision.
II.
Disposition
Cannelton, Patterson, and Richardson argue that the
judge's determinations are contrary to law and not supported
by substantial evidence. PDR at 1; CP&R Br. at 1. The
contestants assert that the judge erred in crediting the belt
examiners based solely on their "employment status." PDR
at 5-7; CP&R Br. at 5-9; CP&R Reply Br. at 1-6. They also
assert that the judge failed to address the testimony of
Elkins, a former foreman who testified that, 3-1/2 hours prior
to the inspection, the accumulation was smaller than when the
inspector cited it. PDR at 6, 8; CP&R Br. at 7, 10-11 (citing
Tr. 321-24). In addition, the contestants assert that the
judge erred in finding that no evidence supports the foremen's
"speculation" as to the cause of the accumulation. PDR at
6-7; CP&R Br. at 7-8; CP&R Reply Br. at 5-6 n.3. They
further contend that the judge erred in finding that the
notations in the preshift-onshift reports were sufficient
to provide notice of the accumulation and that the judge
confused the testimony of Elkins and Patterson regarding
cleanup efforts. PDR at 8-9; CP&R Br. at 8-9; CP&R Reply
Br. at 6-15.[3]
The Secretary responds that substantial evidence supports
the judge's determinations. S. Br. at 5-19. She asserts that
the judge did not credit the testimony of the belt examiners
based only on their "employment status," but that his
determination is buttressed by the foremen's personal interests
in the outcome of the case. Id. at 5-12. The Secretary also
maintains that the judge considered Elkins' testimony but gave
greater credence to the testimony of the belt examiners that the
accumulation had developed during the 2 weeks prior to the
inspection. Id. at 11-12 n.4. Similarly, she asserts that the
judge considered evidence supporting the foremen's "speculation"
as to the cause of the accumulation but gave it little credence
because it was uncorroborated. Id. The Secretary further
contends that the notations in the preshift-onshift reports,
along with the foremen's observance of some amount of
accumulation prior to the inspection, provided the contestants
sufficient notice of the violative condition and that their
failure to ensure that it was cleaned up amounted to aggravated
conduct. Id. at 14-18.
A. Violation
The Commission has held that section 75.400 "is violated
when an accumulation of combustible materials exists." Old Ben
Coal Co., 1 FMSHRC 1954, 1956 (Dec. 1979). Although the
Commission has recognized that "some spillage of combustible
materials may be inevitable in mining operations" (id. at 1958),
we have held that a violative accumulation exists "where the
quantity of combustible materials is such that, in the judgment
of the authorized representative of the Secretary, it likely
could cause or propagate a fire or explosion if an ignition
source were present." Old Ben Coal Co., 2 FMSHRC 2806, 2808
(Oct. 1980) (footnotes omitted).
Here, the contestants do not dispute that a sizable
accumulation was present when the citation was issued. The
accumulation measured approximately 10 feet in length, 10 feet
in width, and 4 feet in depth. Tr. 41. Moreover, Inspector
Hess testified that this amount of loose coal and coal dust
would likely cause a fire because the belt and roller running in
contact with the coal was a potential source of ignition. Tr.
43, 49-52. The fact that the coal was damp beneath the surface
did not render it incombustible because, as the judge noted, it
could dry out and ignite. 18 FMSHRC at 657 (citing Utah Power
& Light Co., Mining Div., 12 FMSHRC 965, 969 (May 1990); Black
Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (Aug. 1985)).
In light of the quantity of the accumulation at the time the
citation was issued, we conclude that substantial evidence[4]
supports the judge's finding that Cannelton violated section
75.400. Accordingly, we affirm the judge's conclusion.
B. Unwarrantable Failure
The unwarrantable failure terminology is taken from section
104(d) of the Mine Act, 30 U.S.C. � 814(d), and refers to more
serious conduct by an operator in connection with a violation.
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).
The Commission "has recognized that a number of factors are
relevant in determining whether a violation is the result of an
operator's unwarrantable failure, such as the extensiveness of
the violation, the length of time that the violative condition
has existed, the operator's efforts to eliminate the violative
condition, and whether an operator has been placed on notice that
greater efforts are necessary for compliance." Mullins & Sons
Coal Co., 16 FMSHRC 192, 195 (Feb. 1994) (citing Peabody Coal
Co., 14 FMSHRC 1258, 1261 (Aug. 1992)).
Substantial evidence supports the judge's finding that the
accumulation was extensive. See 18 FMSHRC at 653-54. Inspector
Hess testified the accumulation measured approximately 10 feet
square and 4 feet deep. Tr. 41. Substantial evidence also
supports the judge's finding that Cannelton, through its foremen,
had been placed on notice by the preshift-onshift reports that
greater efforts were necessary for compliance with the
regulation. See 18 FMSHRC at 658-59. Such reports are relevant
in demonstrating that an operator had notice that greater efforts
were necessary to assure compliance with section 75.400. See
Peabody, 14 FMSHRC at 1262. On virtually every shift during the
2 weeks prior to the inspection, the No. 3 belt V-scraper had
been reported in the preshift-onshift reports as "dirty" or
"needs clean[ing]" under the section entitled "Violations and
other Hazardous Conditions Observed and Reported." Gov't Exs. 9
& 15. Patterson, Richardson, and Elkins reviewed and
countersigned the preshift-onshift reports during this period and
they acknowledged that the notations indicated that an
accumulation existed. Id.; Tr. 315-16, 333, 335-36, 366, 379,
395, 402, 425-26. Thus, although the belt examiners did not
notify the foremen orally of the accumulation, we conclude that
Cannelton received notice that greater efforts were necessary to
keep the No. 3 belt V-scraper clean.
With regard to the length of time the violative condition
existed, however, we believe that the judge failed to address
relevant testimony in finding, based on his credibility
determination, that the accumulation had grown for 2 weeks prior
to the inspection. See 18 FMSHRC at 653-56, 658. A judge's
credibility determinations are entitled to great weight and may
not be overturned lightly. Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC
2767, 2770 (Dec. 1981). The Commission has recognized that,
because the judge has an opportunity to hear the testimony and
view the witnesses, he is ordinarily in the best position to make
a credibility determination. In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995)
("Dust Cases") (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719
(11th Cir. 1984)). Nonetheless, the Commission will not affirm
such determinations if there is no evidence or dubious evidence
to support them. Consolidation Coal Co., 11 FMSHRC 966, 974
(June 1989).
Initially, we find unavailing the contestants' argument that
the judge's consideration of the foremen's personal interests was
inappropriate in making his credibility determination. A judge
may evaluate numerous factors in determining witness credibility,
including the motivation of and relationship between witnesses.
Huston v. Secretary of Health and Human Servs., 838 F.2d 1125,
1132 (10th Cir. 1988); NLRB v. Pyne Molding Corp., 226 F.2d 818,
819 (2d Cir. 1955); Defosse v. Secretary of Health and Human
Servs., 670 F. Supp. 1078, 1080-81 (D. Mass. 1987). However, the
judge may not reject testimony strictly on the basis of a
relationship between a witness and a party to the proceeding.
Breeden v. Weinberger, 493 F.2d 1002, 1010 (4th Cir. 1974). In
this case, we conclude that the judge did not reject the
foremen's testimony solely on the basis of their employment
relationship with Cannelton. Although the judge recognized that
"Richardson and Patterson not only have the responsibility for
defending the company, but face personal liability as well," he
found their testimony "not persuasive when compared with the
other evidence in the case." 18 FMSHRC at 655. Therefore, we
conclude that the judge's consideration of the foremen's personal
interests is not a basis on which to overturn his credibility
determination.
Nevertheless, we agree with the contestants that the
judge failed to address Elkins' testimony that, 3-1/2 hours
prior to the inspection, the accumulation was smaller than
when the inspector cited it. See id. In considering the
foremen's theory that the accumulation had developed a short
time before the inspector arrived, the judge recognized that
Elkins "had walked the belt about [3-1/2] hours before the
citation was issued and although he observed a fairly large
accumulation, it was not the size of the one found by Hess
and it was not touching the belt or rollers." Id. However,
the judge rejected the foremen's theory, in part, due to
their self-interest, a basis not applicable to Elkins,
who had since left the company and, therefore, was not
responsible for defending it, and who was not facing personal
liability. See id.; Tr. 317-18. The judge specifically
discredited the testimony of Patterson and Richardson
without supplying any reasons for discounting Elkins'
testimony.
The substantial evidence standard of review requires
that a fact finder weigh all probative record evidence and
that a reviewing body examine the fact finder's rationale in
arriving at his decision. Amax Coal Co., 18 FMSHRC 1355,
1358 n.7 (Aug. 1996). In order for the Commission to
effectively perform its review responsibility, a judge must
analyze and weigh the relevant testimony, make appropriate
findings, and explain the reasons for his decision. Secretary
of Labor on behalf of Hyles v. All Am. Asphalt, 18 FMSHRC
2096, 2101 (Dec. 1996). Commission Procedural Rule 69(a)
also requires that a judge's decision "include all findings
of fact and conclusions of law, and the reasons or bases for
them, on all the material issues of fact, law or discretion
presented by the record." 29 C.F.R. � 2700.69(a). In light
of the judge's failure to address Elkins' testimony, we
cannot effectively review his finding, based on his
credibility determination, that the accumulation had grown
for 2 weeks prior to the inspection. Thus, we vacate the
judge's finding and remand the matter for further
consideration. We direct the judge to consider Elkins'
testimony and make a credibility determination with respect
to Elkins.
We also agree with the contestants that the judge erred
in finding that there is no evidence to corroborate the
foremen's "speculation" as to the cause of the accumulation.
In discrediting the foremen's testimony, the judge stated
"[n]o one testified . . . that the belt was out of alignment,
that coal was observed traveling from the feeder to the
V-[scraper] on the bottom belt or that the belt was re-aligned
after the accumulation was discovered." See 18 FMSHRC at
655-56. However, the record indicates that both Richardson
and Inspector Hess observed coal coming off the belt at the
time they discovered the accumulation. Tr. 46-47, 62, 273-74.
Hess acknowledged that "the only way that [he] could conceive
of the coal getting on the bottom belt" was from the No. 3
belt feeder. Tr. 63-64. The belt examiners also corroborated
this view. Siemiaczko testified that he assumed that the
accumulation was caused by either a "feeder misaligned on
the belt" or a splice in the belt. Tr. 136, 149. Tucker
stated that he thought that the accumulation was caused by
"spillage from the feeders . . . onto the bottom belt."
Tr. 194. Craft also stated that he thought that the
accumulation was caused by "the feeder dump[ing] on the
belt. Tr. 226. Moreover, Richardson testified that, after
discovering the accumulation, he telephoned the section
boss, Steve Dean, and told him to shut down and reset the
feeder. Tr. 274-75, 312. For the purpose of our
unwarrantable failure analysis, a key question is the
duration of the violative condition, not its specific cause.
However, evidence of the cause of the accumulation may
corroborate Elkins' testimony that the accumulation was
larger 3-1/2 hours after he had observed it. We thus vacate
the judge's finding that no evidence supports the foremen's
"speculation" as to the cause of the accumulation, and
remand the matter for further consideration insofar as the
cause of the accumulation may be relevant to the length of
time that it had existed.
Finally, with regard to Cannelton's cleanup efforts,
the judge failed to mention relevant testimony in finding
that Cannelton did not make efforts to eliminate the
violative condition. See 18 FMSHRC at 658-59. Richardson
testified that, on every shift, there were two men working
on the belts who would shovel, rock dust, and clean up around
the drives and V-scraper. Tr. 264-65, 270. He explained
that, because the V-scraper was a problem area and it was
reported as dirty in the preshift-onshift reports, his men
automatically knew to clean it. Tr. 266, 270, 314.
Richardson also stated that, upon learning that the V-
scraper was dirty, he directed his men to stop there and,
if excessive coal was present, to clean it up. Tr. 282,
298-99. Richardson remembered having to realign the feeder
two or three times during the 2 weeks prior to the inspection
in order to correct spillage problems, and he testified that
the coal was cleaned up each time. Tr. 289-90. Elkins also
testified that Cannelton employed men whose job was to keep
the belt clean. Tr. 352. He testified that, when an
accumulation at the V-scraper reached the height of the belt,
he would send men with shovels to remove some of it and that,
during the 2 weeks prior to the inspection, he directed his
men to do so. Tr. 338-39, 344-45, 363. Patterson also
testified that he had two men assigned to cleaning belts on
every shift. Tr. 376-77, 387, 396. Patterson testified
that, during the 2 weeks prior to the inspection, he
observed three accumulations at the V-scraper, one of
which he specifically assigned his belt cleaners to clean
up and the others which he shoveled himself. Tr. 386-92,
396, 407-08. Patterson explained that his men attempted to
get a scoop to the area to clean up the accumulation but
that the area was extremely wet and muddy so they were unable
to do so. Tr. 408-10. Then, he directed the men to shovel
the accumulation and he saw them shoveling before he left.
Tr. 410, 412. Patterson testified that the two men shoveled
the area for approximately 2-1/2 hours and then men working
on the next shift, for whom Elkins was the foreman, finished
cleaning and rock dusted the area. Tr. 412, 420-21, 423.
We conclude that the judge failed to consider the
testimony of Patterson, Richardson, and Elkins regarding
their efforts to clean up the accumulation.[5] Such remedial
efforts are relevant to the unwarrantable failure evaluation
and should have been considered by the judge. See, e.g.,
Peabody, 14 FMSHRC at 1263-64; Utah Power & Light Co., 11
FMSHRC 1926, 1933-34 (Oct. 1989). We therefore vacate the
judge's finding that Cannelton did not make efforts to
eliminate the violative condition, and remand the matter
for further consideration of the evidence adduced during
the hearing on this issue. If, on remand, the judge
determines that Cannelton made efforts to clean up the
accumulation, he shall also evaluate such efforts insofar
as they may be relevant to the length of time that the
accumulation had existed.
Our decision to vacate the judge's unwarrantable failure
finding should not be construed as advocating or encouraging
operators to allow accumulations of coal to exist on a belt
line. We fully recognize the seriousness of this particular
violation and do not wish to downplay its significance. At
issue here, however, is not whether a violation of section
75.400 occurred,or if the violation was S&S. Instead, the
issue on review is a more narrow one that requires us to
focus on whether the operator's conduct rises to the level
of unwarrantable failure. On this point, we are guided by
established precedent that, to properly make this
determination, a judge must fully evaluate the operator's
conduct in accordance with certain factors identified
by the Commission to determine whether a violation is
unwarrantable. The factor that is particularly germane on
this appeal is the operator's efforts to eliminate the
violative condition.
As discussed previously, the judge found that Richardson
and Patterson did not make any specific attempts to have the
accumulation cleaned up. 18 FMSHRC at 658. Based on our
review of the record, this finding is contradicted by certain
evidence adduced during the hearing. The judge appears to
have failed to consider relevant testimony of Cannelton's
witnesses concerning their efforts to clean up the accumulation.
Accordingly, we believe our responsibility is to vacate the
judge's decision, and remand the case with an instruction that
the judge consider and evaluate this testimony and determine
whether it influences his prior finding that this violation
was unwarrantable.
Unlike our dissenting colleagues, we will not ourselves
attempt to determine here whether the evidence of cleanup
efforts by Cannelton was sufficient to warrant elimination
of the unwarrantable failure designation, or whether
aggravated or intentional misconduct occurred. In our view,
the determination is more appropriately made by the judge,
who, as the trier of fact, had a previous opportunity to
observe the witnesses directly, and is therefore in the best
position to evaluate this testimony and determine whether,
if credited, it requires a reversal of his previous finding
that this violation was unwarrantable. We believe this
approach is preferable to that taken by the dissenters, who
elect to invade the province of the judge and evaluate the
record testimony on their own and conclude that the judge's
failure to consider it was mere "harmless error," based on
their opinion that, even if credited, the evidence did not
reflect a cleanup effort "reasonably designed to eliminate
the accumulation." Slip op. at 15 n.4.[6] We believe that
our approach ensures that due process of the law is afforded
to all parties in making this crucial determination.
In sum, we vacate the judge's determination that the
violation was the result of Cannelton's unwarrantable
failure, and remand for findings of fact related to the
length of time that the accumulation had existed and
Cannelton's cleanup efforts.[7] The judge shall also
make new findings for any of the six penalty criteria
set forth in section 110(i) of the Mine Act, 30 U.S.C.
� 820(i),[8] that are affected by his findings of fact
and reassess the civil penalty against Cannelton.
**FOOTNOTES**
[2]: Citation No. 4195028 states:
Management showed a high degree of
negligence by allowing loose dry coal to
accumulate under the No. 3 belt conveyor to a
point where the loose coal was in contact
with the belt. The coal accumulation
measured approximately 10 feet in width, 10
feet in length and 4 feet in height. This
condition was reported in the pre-shift mine
examination report since 2/15/94 on each
shift with no corrective actions taken. A
fire hazard is present with a moving conveyor
belt running in loose dry coal.
Gov't Ex. 1.
[3]: Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. �
823(d)(2)(A)(iii), and Commission Procedural Rule 70(f), 29
C.F.R. � 2700.70(f), provide that Commission review is limited to
the questions raised in a granted petition for discretionary
review. In their petition for discretionary review, Cannelton,
Patterson, and Richardson focus on the judge's factual findings
on which he based his ultimate conclusions regarding the issues
of violation, unwarrantable failure, and section 110(c)
liability, without expressly challenging those conclusions. See
PDR at 4-9. The contestants merely request that the Commission
reverse the judge's "decision." Id. at 6, 9. We construe the
contestants' petition to request reversal of the judge's
conclusions regarding the issues of violation, unwarrantable
failure, and section 110(c) liability. However, we admonish
petitioners and counsel to adhere to the requirements of the Mine
Act and the Commission's procedural rules. Because the
contestants do not challenge the judge's findings related to his
S&S conclusion, that issue is not before the Commission. See id.
at 4-9.
[4]: 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)).
[5]: We note that, as the contestants point out (CP&R Reply
Br. at 6-9), the judge appears to have confused the testimony of
Elkins and Patterson regarding the unsuccessful attempt to clean
up the accumulation. 18 FMSHRC at 658-59.
[6]: In concluding that any efforts taken by Cannelton to
clean up the accumulation were unreasonable and ineffectual, and
therefore cannot provide a basis for a finding that the violation
was not unwarrantable, our colleagues cite to their separate
opinion in Peabody Coal Co., 18 FMSHRC 494, 501 (Apr. 1994)
(Chairman Jordan and Commissioner Marks, concurring in part and
dissenting in part). In their opinion in Peabody, however, while
Chairman Jordan and Commissioner Marks agreed with the Commission
majority that the judge failed to appreciate the significance of
water as a dust control measure in finding that the operator's
respirable dust violation was unwarrantable, they indicated that
they would have instead vacated the judge's determination and
remanded for further analysis, based upon their unwillingness to
conclude that the record could not support an unwarrantable
failure finding. Id. In that case, our dissenting colleagues
criticized the Commission majority for taking the type of
approach they propose to follow here - declining to allow the
judge the opportunity to determine, in the first instance,
whether his analytical error warrants a reversal of his
unwarrantability determination, based upon their conclusion that
the record can only support one conclusion.
[7]: In vacating the judge's determination of unwarrantable
failure we are not attempting to downplay the seriousness of a
violation alleging an accumulation of coal or coal dust in an
underground mining environment. Instead, our focus here is to
determine if the operator's conduct rises to the level of
unwarrantable failure. To properly make this determination, the
judge must evaluate this conduct in accordance with the factors
utilized by the Commission to determine whether a violation is
unwarrantable.
C. Section 110(c) Liability
Section 110(c) of the Mine Act provides that, whenever a
corporate operator violates a mandatory safety or health
standard, an agent of the corporate operator who knowingly
authorized, ordered, or carried out such violation shall be
subject to an individual civil penalty. 30 U.S.C. � 820(c).
The proper legal inquiry for determining liability under
section 110(c) is whether the corporate agent knew or had
reason to know of a violative condition. Kenny Richardson,
3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d
632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).
Accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d
358, 362-64 (D.C. Cir. 1997). To establish section 110(c)
liability, the Secretary must prove only that an individual
knowingly acted, not that the individual knowingly violated
the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131
(July 1992) (citing United States v. Int'l Minerals & Chem.
Corp., 402 U.S. 558, 563 (1971)). An individual acts
knowingly where he is "in a position to protect employee
safety and health [and] fails to act on the basis of
information that gives him knowledge or reason to know of
the existence of a violative condition." Kenny Richardson,
3 FMSHRC at 16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary negligence.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).
Here, we conclude that the judge erred in reaching his
section 110(c) conclusions by failing to consider
evidence regarding the foremen's efforts to eliminate
the violative condition.
We have already concluded that the record supports the
judge's finding that Patterson and Richardson, agents of
Cannelton,[9] possessed actual knowledge of the accumulation
problem by way of the preshift-onshift reports. Slip op. at 6.
However, as we have determined, the judge failed to consider
Patterson's and Richardson's testimony regarding their efforts
to clean up the accumulation. Because an agent's actions
following his awareness of a violative condition are critical
to the section 110(c) analysis, we vacate the judge's
determination that Patterson and Richardson are liable under
section 110(c) and remand for findings of fact related to the
foremen's cleanup efforts. In the event the judge finds
section 110(c) liability, he shall reassess the civil penalty
or penalties based on the section 110(i) criteria as they
apply to individuals. Ambrosia Coal and Constr. Co.,
19 FMSHRC 819, 823 (May 1997); Sunny Ridge Mining Co.,
19 FMSHRC 254, 272 (Feb. 1997).
III.
Conclusion
For the foregoing reasons, we affirm the judge's
determination that Cannelton violated section 75.400, vacate
his determinations that the violation resulted from
unwarrantable failure and that the foremen are liable under
section 110(c), and remand for further consideration
consistent with this opinion.
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
**FOOTNOTES**
[8]: 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.
[9]: At the hearing, the parties stipulated that
Patterson and Richardson were agents of Cannelton.
Tr. 18-19.
Chairman Jordan and Commissioner Marks, dissenting in
part:
It is clear from the record in this case that an
extensive accumulation of coal existed for at least 2 weeks
at the Cannelton mine, in violation of 30 CFR � 75.400.[1]
It is also clear from the record that Cannelton officials
were indifferent to this violation, simply because it was a
smaller accumulation than those they personally considered
dangerous. Because we agree with the judge's conclusion
that Cannelton's conduct was "inexcusable," 18 FMSHRC 651,
659 (Apr. 1996) (ALJ), we would affirm his finding that the
violation was a result of the operator's unwarrantable
failure.
The majority does not dispute the judge's finding that
the accumulation was extensive, measuring approximately 10
feet square and 4 feet deep. Slip op. at 6. In fact, the
inspector testified that when the violation was abated, 8 to
12 tons of coal were removed. Tr. 54 (emphasis added). Even
one of the Cannelton foremen estimated that 6 to 8 tons of
coal were taken away to abate the violation. Testimony of
Richardson, Tr. 306. The majority also agrees with the
judge's conclusion that Cannelton was placed on notice of
the violation by preshift-onshift reports. Slip op. at 6.
Nonetheless, despite overwhelming evidence provided by those
same reports that the accumulation had existed for at least
2 weeks, and despite clear proof that any efforts to
eliminate the accumulation were ineffectual at best and
half-hearted at worst, the majority declines to affirm the
judge's finding of unwarrantable failure.
Our colleagues in the majority insist that a remand
is necessary to permit the judge to make a credibility
determination with respect to Elkins, slip op. at 7, to
ascertain the duration of the violation. This is an
unnecessary exercise for two reasons. First, the judge
decided the question of duration when he found that the
accumulation existed for 2 weeks, crediting the testimony
of the two fire bosses and a general laborer. 18 FMSHRC at
655. While explicitly crediting this testimony over that
of Richardson and Patterson, in making this finding he also
implicitly credited their testimony over that of Elkins.
See Fort Scott Fertilizer - Cullor, Inc., 19 FMSHRC 1511,
1516 (Sept. 1997) (concluding that the judge implicitly
credited miner's testimony that he was not aware of brake
problems).
More importantly, a remand is unnecessary because of
the staggering amount of evidence demonstrating that the
accumulation had developed over a 2-week period. Thirty-five
preshift reports written during that 2-week period indicated
that the No. 3 belt V-scraper was "dirty" or "need[ed]
clean[ing]." Gov't Ex. 9. On 34 of those reports, the
condition was reported as "continued," indicating that it
had previously existed. Tr. 316, 335-36. After reviewing
these reports (many of which he had countersigned) during
the trial, Elkins was asked whether he denied "that there
was an accumulation at the No. 3 belt near the V-scraper
from February 14th to march [sic] the 1st." Tr. 336. He
replied, unequivocally, "No, ma'am. I do not." Id.
In addition to the preshift reports, which we find
compelling, the testimony of the preshift examiners makes
clear that this accumulation increased over a period of 2
weeks, and was not suddenly created just before the
inspection. Dwight Siemiaczko testified that "from February
14th, . . . it grew in size from that day to March 1."
Tr. 130. Lee Tucker stated that the accumulation occurred
"[o]ver the extended period of time . . . . I think the
two weeks that we're talking about that's recorded in the
book." Tr. 195.[2] Clearly, substantial evidence supports
the judge's finding that this accumulation slowly grew over
a 2-week period, and did not suddenly emanate 3 hours before
the inspection.[3]
In remanding the case for further consideration of
Cannelton's efforts to clean up the accumulation, the
majority fails to recognize the deeply disturbing principle
underlying Cannelton's action (or inaction). The reigning
operating procedure at this mine was that the foremen
tolerated coal accumulations up to a certain amount. They
were simply complacent about accumulations smaller than those
they personally considered dangerous. This classic
indifference to a dangerous ignition source is the prototype
of an unwarrantable failure.
The testimony of the foremen illustrates their blase
attitude. For example, Elkins, when asked what he considered
a "manageable" amount of coal accumulation, stated "[t]welve
inches or so." Tr. 363. He readily admitted passing by the
relevant area 3-1/2 hours before the inspection and observing
a 4 by 4 foot accumulation that was 18 to 24 inches deep.
Tr. 322. When asked when he would require miners to go to
the area to shovel, he stated "[o]nce it [the accumulation]
got to a height that concerned me," which, he subsequently
admitted, was when it was 6 to 8 inches from the belt. Tr.
338-39. A remand is not necessary to determine the
credibility of this witness. Even accepting his testimony
concerning the size of the accumulation, his failure to
exert reasonable efforts to eliminate it supports the
unwarrantable failure determination.
**FOOTNOTES**
[1]: Although we agree with the majority that the judge
properly found an accumulation violation, slip op. at 5, we fear
that the majority's discussion of the violation may create the
incorrect impression that some level of accumulation is permitted
under the standard. This is not consistent with Commission case
law. In defining an accumulation in Utah Power & Light Co.,
Mining Div., 12 FMSHRC 965, 968 (May 1990), the Commission
emphasized that it was "Congress' intention to prevent, not
merely to minimize, accumulations" and that section 75.400 was
"directed at preventing accumulations in the first instance, not
at cleaning up the materials within a reasonable period of time
after they have accumulated." Id. (citing Old Ben Coal Co., 1
FMSHRC 1954, 1957 (Dec. 1979) (emphasis added).
[2]: The majority speculates that Siemiaczko's and Tucker's
statements that the accumulation may have been caused by a
problem with the feeder could corroborate Elkins' testimony about
the size of the accumulation. Slip op. at 7-8. However, their
testimony indicates that even if that was the cause, the
accumulation nonetheless developed over a 2-week period.
[3]: Although we need not reach the issue, we note that an
unwarrantable failure designation for an accumulation of this
size might be supported even if the duration were 3 hours instead
of 2 weeks.
Richardson, when asked what he considered an excessive
amount of coal requiring cleanup, stated, "[A]n excessive
amount of coal, it could be anything. It's according to how
high your belt is," and suggested that it needed to touch the
rollers. Tr. 283. He bluntly testified that:
If there was a mound of coal there, [at the
scraper] it presented no problem. . . . [Y]ou
could have, like I told you, 14 to 16 inches of
coal, I would think nothing of it if I had a place
over here that had a coal spillage in it or
something else wrote up that I needed the men to
work on. That would be put on the last of my
list. And if they got down to it, good. If not,
it would be passed on.
Tr. 307.
Patterson testified that he only saw spillage two times at
the No. 3 belt, and that both times it was 2 or 2-1/2 feet high,
4 feet by 6 feet. Tr. 389. When asked if he considered either
of the 2 or 2-1/2 foot high accumulations hazardous, he stated
that he did not. Id.
In sum, the operator's baseline was that at least a foot
of coal needed to accumulate before it made sense to worry about
it. It is not surprising, therefore, that Cannelton's cavalier
attitude towards accumulations resulted in only the most
perfunctory of efforts to eliminate it. The evidence cited by
the majority in support of its decision to vacate the judge's
finding that Cannelton did not make efforts to clean up, slip op.
at 8, reveals lackluster attempts more indicative of Cannelton's
nonchalant attitude about the accumulation than of a sincere
effort to remove it. Even crediting the evidence on which the
majority relies, substantial evidence indicates that Cannelton's
cleanup attempt was woefully inadequate.
First, foreman Richardson testified that he never asked for
additional personnel to clean up the area. When asked if he
thought he needed additional help, he replied: "Not until I got
the violation `cause I never seen any problem there that I needed
to shut down a section or anything to pull extra people in." Tr.
304. Although he asserted that men worked to remove the
accumulation, he could not state how often or when this work was
performed. Tr. 299.[4] In addition, miners Siemiaczko and Craft
testified that they were unaware of any effort to clean up the
accumulation during the 2 weeks prior to the inspection. Tr.
140-41, 227-28. Also, the inspector testified that nobody was
cleaning up the accumulation when he arrived on the scene.
Tr. 60.
**FOOTNOTES**
[4]: Patterson testified that he did shovel the
accumulation once himself. Tr. 387. He also testified that he
assigned two men to clean belts and that on one occasion he
specifically assigned his belt cleaners to clean up the
accumulation at the V-scraper, Tr. 386-92, although he failed to
note these cleanup efforts in the examination books. Tr. 412,
422-23. Thus, the judge's finding that "neither Richardson nor
Patterson . . . made any specific attempt to have it [the
accumulation] cleaned up, 18 FMSHRC at 658, is an overstatement,
but it constitutes harmless error in light of Cannelton's
overwhelming failure to initiate a cleanup reasonably designed to
eliminate the accumulation.
The facts of this case are strikingly similar to those in
the recent Commission case Amax Coal Co., 19 FMSHRC 846 (May
1997), in which the Commission affirmed the judge's decision
upholding an unwarrantable failure designation on an
accumulations violation. As in this case, Amax involved an
extensive accumulation that existed for several shifts preceding
the issuance of the order. We rejected Amax's defense that
because the day shift manager's decision to send only one miner
to clean up the accumulation was based on a good faith (although
mistaken) belief that this would be effective, the violation
should not be designated unwarrantable. Id. at 851. We
emphasized that "the operator's good faith belief must be
reasonable under the circumstances." Id. We held that the
preshift examiner's incorrect assessment of the spill was not
reasonable in light of the size of the accumulation. Similarly,
we find that here, Cannelton's efforts - even including those
cited by the majority as the basis for its remand - were clearly
unreasonable and patently ineffectual. See Peabody Coal Co., 18
FMSHRC 494, 501 (Apr. 1996) (Chairman Jordan and Commissioner
Marks, dissenting in part) ("[T]he success or failure of an
operator's effort to achieve compliance is a factor that must be
considered in deciding whether the operator acted reasonably and
in good faith.").
The Commission's decision in Peabody Coal Co., 14 FMSHRC
1258 (Aug. 1992) is also instructive. In that case, in which we
affirmed an unwarrantable failure determination, the judge
credited the inspector's testimony that an extensive accumulation
of coal had existed for up to 1 week. Id. at 1261-62. Entries
for seven of the eight preshift examinations made prior to the
inspection described problems with accumulations or spilling in
the relevant area. Id. at 1262. The Commission noted that the
preshift reports showed not only that the operator had prior
notice of an accumulation problem, but also demonstrated "that
greater efforts were necessary to assure compliance with section
75.400." Id. In addition, we acknowledged that Peabody's
failure to remedy the spilling problem was a proper consideration
in the unwarrantable failure determination, and that the judge
was correct to consider the inspector's testimony that, as in
this case, at the time of the inspection no one was attempting to
remove the accumulation. Id. Finally, in Peabody, the judge
found that only one miner was assigned to clean the area, and she
had other responsibilities. Id. at 1263. He concluded that this
effort was not sufficient to effectively remedy the cited
accumulation, a finding which the Commission agreed supported his
determination that Peabody engaged in aggravated conduct. Id.
Thus, substantial evidence amply supports the judge's finding
that Cannelton engaged in aggravated conduct constituting an
unwarrantable failure.
We also agree with the judge's determination that Patterson
and Richardson are liable under section 110(c). The proper legal
inquiry for determining liability under section 110(c) is whether
the corporate agent knew or had reason to know of a violative
condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd
on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461
U.S. 928 (1983). The majority does not dispute the judge's
finding that these two foremen had actual knowledge of the
accumulation, due to the preshift-onshift reports noting such
conditions, which they signed. Slip op. at 11. Foreman
Richardson signed 35 reports at issue and foreman Patterson
signed 9 of those reports. Gov't. Ex. 9. Despite determining
that these foremen had actual knowledge of a persistent
accumulation, the majority incorrectly remands the section 110(c)
issue for further findings related to the foremen's cleanup
efforts. Such a remand is unnecessary because the record is
replete with references regarding their abject failure to
adequately eliminate the accumulation. Supra at 13-14. No
cleanup efforts were recorded in the examination books. Tr. 293-
94. The inspector testified that he had no knowledge of any
attempts by them to clean up the accumulation. Tr. 100-02. The
only evidence of Patterson's cleanup efforts is negligible, see
supra at 14 n.3, and Richardson could not cite one specific
instance in which his miners cleaned up the relevant area. Tr.
298-99. Thus substantial evidence supports the judge's finding
that these individuals knew of the violative condition and failed
to take effective steps to remedy condition. When substantial
evidence supports a judge's finding, we are required under the
Mine Act to affirm it. 30 U.S.C.
� 823(d)(2)(A)(ii)(I).[5]
In Prabhu Deshetty, 16 FMSHRC 1046 (May 1994), the
Commission found a general mine foreman liable under section
110(c) under facts less egregious than those presented here.
There, for 8 working days, the foreman signed the belt examiner's
report, which had indicated that the belt was dirty or needed
cleaning, but took no steps to verify that the accumulations were
cleaned up. Id. at 1050-51. Similarly, Patterson and Richardson
failed to take effective steps to remedy the accumulation problem
when they were made aware by the preshift reports, which they
signed, that the problem existed.
**FOOTNOTES**
[5]: The majority has apparently overlooked the posture of
this case as it stands before us - the judge determined that the
operator engaged in unwarrantable failure and that Patterson and
Richardson were liable under section 110(c). Accordingly, we
have not invaded the province of the judge as our colleagues
suggest, but, in accordance with Mine Act section 113, have only
reviewed the record to see whether substantial evidence supports
those determinations. Having satisfied ourselves that
substantial evidence supports the judge's determinations, we vote
to affirm them.
Accordingly, we would affirm the judge's determinations that
the accumulation violation was a result of unwarrantable failure,
and that Patterson and Richardson are liable under section 110(c)
for knowingly authorizing, ordering, and carrying out the
violation.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
Distribution
David J. Hardy, Esq.
Jackson & Kelly
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041