<DOC>
[DOCID: f:wv9872cd.wais]

 
EAGLE ENERGY, INC.
WEVA 98-72-R
October 30, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        October 30, 2001

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        : Docket Nos. WEVA 98-72-R
  ADMINISTRATION (MSHA)         :             WEVA 98-73-R
                                :             WEVA 98-123
     v.                         :
                                :
EAGLE ENERGY, INC.              :


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


                            DECISION

BY: Verheggen, Chairman; Riley and Beatty, Commissioners


     This contest and civil penalty proceeding involves two
orders issued by the Department of Labor's Mine Safety and 
Health Administration ("MSHA") to Eagle Energy, Inc. ("Eagle") 
under the Federal Mine Safety and Health Act, 30 U.S.C. � 801 
et seq. (1994) ("Mine Act" or "Act"). Administrative Law Judge 
Jerold Feldman affirmed the violations charged in the orders, 
concluded that the violations were the result of Eagle's 
unwarrantable failure, and imposed penalties greater than those 
assessed by the Secretary.  22 FMSHRC 860 (July 2000) (ALJ).  
The Commission granted Eagle's petition for review in which it 
challenged the judge's findings and conclusions with regard to 
those issues. For the following reasons, we affirm the judge's 
conclusion that violations of the cited regulations occurred, 
and vacate and remand the unwarrantability determination and 
penalty assessments.

                               I.

                Factual and Procedural Background

     On February 26, 1998, Eagle maintenance foreman James 
Kerns was fatally injured when a rib roll occurred in the 2 
North section at the No. 1 mine.  22 FMSHRC at  862.  In  the 
ensuing investigation, MSHA and West Virginia mine investigators 
and Eagle officials gathered at the  2 North  section  dumping
point in the No. 2 entry at the 26th crosscut.  Id.  MSHA 
personnel included inspectors Thurman Workman and Vaughn Gartin 
and supervisory inspector Terry Price.  Id.  Federal and state
investigators were accompanied by Eagle vice-president Larry
Ward, superintendent Terry Walker, and night shift foreman 
Roger Lovejoy.  Id.  Government and company personnel divided 
into teams to go to the accident site in smaller groups.  Id.  
While one group waited, another proceeded to the accident 
scene. Id.

     At about 6:50 p.m., while waiting to go to the accident
site, Price walked from the dumping point through the 26th
crosscut towards the No. 3 entry.  Id.  Price heard sounds that
he attributed to "mountain bumping." Id. Mountain bumping is a
geological condition in the mine caused by shifting rock due to
the mining out of coal; the result is sloughage that falls from
the roof and ribs.  Id. at 870.  While Price was walking toward
the No. 3 entry, Workman headed in the direction of the No. 1
entry through the 26th crosscut.  Id. at 862.  Workman then
doubled back through the 26th crosscut towards the No. 3 entry
when he saw a kettle bottom with a roof bolt through the center
of it.  Id.

     A kettle bottom is the oblong or cylindrical fossilized
remains of a tree trunk that consists of "slickensided"[1]
material that may be surrounded by a ring of coal.  Kettle
bottoms are primarily found in mine roofs consisting of 
shale.[2] Id. at 862-63.  Kettle bottoms were a frequent 
occurrence at the Eagle mine.  Id. at 863.  When they were 
encountered, foremen usually identified them with spray paint 
or chalk to signal the roof bolters that additional roof 
support was needed, or dangered them off until they could be 
bolted.  Id.; Tr. II 558; Tr. II 850-51.[3]  When support was
added to a kettle bottom, generally a roof bolt was placed 
just to the side of the kettle bottom with a half header or 
roof bolting plate overlapping the kettle bottom to hold it 
in place and ensure that it would not separate from the 
surrounding roof material. 22 FMSHRC at 863.

     Price also observed the kettle bottom that Workman saw. 
Id. Because the kettle bottom was roof bolted in the center, 
rather than at the side with a supporting half header, Price 
and Workman concluded that the kettle bottom was not properly
supported, and therefore they considered it to be a hazardous
condition. Id.

     Workman returned to the dumping point at the No. 2 entry,
where he encountered Pete Hendricks, president of Eagle's parent
company, Massey Coal Services. Id. Miners' representative Keith
Casto was also present.  Id. at 862-63.  Workman, Price, and
Casto proceeded to walk approximately 27 feet inby the dumping
point where they observed a cluster of three kettle bottoms that
were marked with orange paint. Id. at 863; see Gov't Ex. 11 A-E.
Workman pointed out the painted kettle bottoms to Hendricks, who,
according to Workman, stated that he paid his people to support
the kettle bottoms. 22 FMSHRC at 863. After Workman pointed out
the kettle bottoms, Eagle vice-president Larry Ward had the area
dangered off until he had an opportunity to inspect them. Id. at
864.  Workman had MSHA inspector Gartin photograph the painted
cluster of kettle bottoms.[4]  Id.  At the completion of his
conversation with Hendricks, Workman traveled into the 26th
crosscut towards the No. 1 entry.  Id.  He saw an unsupported
egg-shaped kettle bottom in the crosscut about midway between 
the No. 2 and No. 1 entries.  Id.

     Workman then joined an investigative team that went to the
accident site.  Id.  After inspecting the accident site, Workman
returned to the dumping point, and he was instructed to conduct 
a Triple A inspection in the No. 2 section inby the dumping 
point to the working faces.  Id.  Workman was accompanied by a 
West Virginia mine inspector.  Id.  Workman initially traveled 
up the No. 1 entry and observed a roundish oblong kettle bottom 
about six to nine inches in diameter, inby spad 2669.  Id. 
Workman then walked through the 27th crosscut from the No. 1
entry to the No. 2 entry.  Id.  At the intersection of the 27th 
crosscut and the No. 2 entry, inby spad 2668, Workman saw a 
sunflower-shaped kettle bottom with jagged edges that was 
approximately six to nine inches in diameter. Id.

     Workman next walked inby spad 2668 in the No. 2 entry.
About 25 feet inby spad 2668, Workman noticed a kettle bottom
that was similar in size to the prior kettle bottoms that he 
had observed  Id. In returning through the No. 3 entry, outby 
spad 2666, Workman saw a round kettle bottom that was about 6
to 10 inches in diameter.[5]  Id. at 864-65.  Workman walked 
through the 27th crosscut and went outby the No. 1 entry.  In 
the entry, outby the 26th crosscut near spad 2664, Workman saw 
an unsupported kettle bottom that was round and about 6 to 10 
inches in diameter.  Id. at 865.  In total, Workman saw ten 
kettle bottoms, nine of which were cited.  Id.

     At the completion of the inspection, Workman traveled to 
the mine surface and at 11 p.m, along with MSHA inspectors 
Gartin and Price, met with Massey Coal president Hendricks and
Eagle officials to discuss the results of the investigation.  
Id. At the meeting, Workman issued a section 104(a) citation 
charging  Eagle  with  a  violation  of  section  30  C.F.R. 
� 75.202(a),[6] as a result of inadequate roof and rib support
in the 2 North section.[7]  Id.  Workman based the citation on 
his observation of the unsupported kettle bottoms, loose and 
broken coal in the roof, unsupported coal ribs, and entry 
widths exceeding the 20 feet specified in Eagle's approved roof
control plan. Id. MSHA did not issue any citations as a result 
of the investigation into the fatal accident. See Tr. I 232.

     To abate the citation, Eagle vice-president Ward instructed
safety director Jeffrey Bennett to paint any area of the roof
that appeared slickensided.  22 FMSHRC at 865.  Thereafter,
Bennett used orange spray paint that was similar to what had 
been used to paint the three kettle bottom cluster near the 
dumping point.  Id.  The areas that were painted were bolted 
subsequently by installing roof bolts and half headers around 
the perimeters of the painted areas.  Id.  See Jt. Ex. 1.  Ward 
considered these areas to be non-hazardous roof irregularities 
that were supported only to abate the citation.  The citation 
was abated on March 2, 1998.  22 FMSHRC at 865.  Eagle paid 
the penalty assessed as a result of the citation. Id. at 866.

     On February 27, the day after the citation was issued, 
MSHA inspectors Workman and Price returned to the mine and 
inspected the preshift and onshift examination reports. Id. 
Based on a mine advancement map for the working faces in the 
2 North section, which was prepared by Eagle vice-president
Ward, Workman concluded that the area where the painted
cluster of kettle bottoms was located had been mined during 
the day shift on February 24.  Id.  The inspectors looked at
the examination reports for the preceding three days, February 
24 through February 26.  Id.  During this period, the section
foremen, Saunders, Fisher, and Miles, had performed collectively 
17 examinations.  Id.  None of the roof conditions that Workman 
had identified as kettle bottoms on February 26, including the 
orange painted cluster, had been included in the reports. Id.  
On March 11, 1998, Workman issued two section 104(d)(2) orders 
to Eagle for performing "perfunctionary"(sic) preshift and 
onshift examinations in violation of 30 C.F.R. �� 75.360(b)[8] 
and 75.362(a)(1),[9] respectively.  Id. at 867.  He designated 
each of the violations as significant and substantial ("S&S") 
and attributed them to Eagle's unwarrantable failure. Id. See
Gov't Exs. 1 and 2.

     Eagle contested the proposed penalties and a hearing was
held. Before the judge, Eagle's primary defenses were that the
roof conditions cited by MSHA in the orders were not kettle
bottoms and, alternatively, that they were not exposed until
mountain bumping and roof sloughage occurred on February 26,
shortly before MSHA's investigation.  22 FMSHRC at 867.

     The judge first noted that Eagle had made "two damaging
admissions." Id. at 870. The first was a statement made by the
president of Eagle's parent company, Pete Hendricks, to MSHA
inspector Workman in which Hendricks acknowledged the presence 
of the painted cluster of kettle bottoms in the No. 2 entry. Id.
See Tr. I 297-98.  The second was Eagle's failure to contest the
section 104(a) citation, which cited a number of hazardous roof
conditions including kettle bottoms.  22 FMSHRC at 870.  The
judge also found that the record evidence, including the credited
testimony of MSHA's inspectors and exhibits, amply supported the
presence of kettle bottoms.  Id. at 871.

     The judge further found that the presence of continuous
miner bit marks, which indicated that the areas where the kettle
bottoms were seen were exposed when they were mined, tight roof
plates, no roof sloughage, and painted center line (drawn through
the three painted clustered kettle bottoms), provided a rational
basis for inferring that the painted kettle bottoms were exposed
during the mining cycle on February 24, 1998.  Id. at 872.  With
regard to the remaining unpainted kettle bottoms, the judge held
the same facts, with the exception of the painted center line,
supported the conclusion that the kettle bottoms were exposed
during the normal mining cycle between February 24 and 26.  Id.
The judge rejected Eagle's defense that mountain bumping could
have exposed the kettle bottoms on February 26. Id. at 873. The
judge further applied the "missing witness" evidentiary rule to
draw the inference adverse to Eagle that had it presented a
witness to testify concerning the painting of the center line
that ran through the painted cluster of kettle bottoms, that
witness would have testified that the kettle bottoms were painted
contemporaneously with the center line on February 24.  Id. at
874.  The judge continued that Eagle cannot escape application of
the rule by denying that it knew the identity of the witness who
painted the line.  Id.

     The judge affirmed the inspector's designation of the
violations in the orders as significant and substantial
("S&S").[10]  Id. at 874-76.  The judge also concluded that the
evidence reflected "the requisite unjustifiable conduct to
support an unwarrantable failure" determination.  Id. at 878.

     In addressing the proposed penalties, the judge noted that
the evidence suggested that Eagle acted with reckless disregard
of the hazardous roof conditions in the heavily traveled No. 2
entry.  Id. at 879.  Relying on the painted cluster of kettle
bottoms in the No. 2 entry, the judge noted that the cited
violations were of extremely serious gravity.  Id.  The judge
found that Eagle had an extensive history of violations.  Id.
The judge increased the proposed penalties from $3000, which had
been initially proposed by MSHA, to $6000 for each order for a
total penalty of $12,000.  Id. at 880.

                               II.

                           Disposition

     Eagle argues that substantial evidence does not support the
judge's determination that it  failed to observe and report the
kettle bottoms.  E. Br. at 7.  In support, Eagle contends that
the judge ignored testimony favorable to Eagle or failed to
reconcile conflicting testimony, including the unrefuted
testimony of the foremen and rank-and-file miners that they did
not see any unsupported kettle bottoms from February 23 to 26.
E. Br. at 9-11; E. Reply Br. at 1-6.  Eagle argues alternatively
that the conditions cited were not kettle bottoms, or that they
were not observable prior to mountain bumping that occurred on
February 26, which allowed obscured areas of the mine roof to
become visible.  E. Br. at 7.  Eagle attacks the basis for the
judge's discrediting the testimony of Scovazzo, who testified
that the painted roof conditions cited were not indications of
kettle bottoms but rather represented "doodling."  Id. at 8-9.
Further, Eagle challenges the judge for giving "preclusive effect
to an uncontested citation" that Eagle settled for economic
reasons.  Id. at 11.  Eagle argues that the citation was not
litigated and did not involve the same issues as the section
104(d) orders in this proceeding.  Id. at 11-12; E. Reply Br. at
6-7.

     Eagle argues that the Commission should reverse the judge's
unwarrantable failure findings because he based them entirely on
the painted cluster of alleged kettle bottoms while ignoring the
testimony concerning the other alleged kettle bottoms that were
the basis for the orders.  E. Br. at 9-16.  Eagle attacks the
judge's use of the "missing witness" rule that led him to infer,
in light of Eagle's failure to present the witness who painted
the center line, that the witness would have testified that the
adjacent kettle bottoms were painted contemporaneously with the
center line during the mining cycle on February 24.[11]  Id. at
17-18.  In particular, Eagle notes that the judge applied the
rule even though the identity of the witness was not known to
Eagle.  Id. at 18-19.  Finally, Eagle challenges the judge's
imposition of a civil penalty of $12,000 because of aggravated
conduct when the only evidence on which the judge relied was
Eagle's failure to observe and bolt the painted cluster.[12] Id.
at 19-20.

     The Secretary argues that substantial evidence supports the
finding of violations, because kettle bottoms existed in the mine
and were visible, and Eagle failed to identify them in the
preshift and onshift examination reports.  S. Br. at 7-9.  The
Secretary contends that doctrines of res judicata or collateral
estoppel did not bar the judge from relying on Eagle's prior
payment of penalties in an uncontested citation that included an
allegation of unsupported kettle bottoms.  Id. at 9-10.  The
Secretary argues that Eagle failed to show that the judge abused
his discretion in crediting the Secretary's witnesses over
Eagle's expert regarding the existence of kettle bottoms.  Id. at
11-13.  The Secretary asserts that there is no basis for
overturning the judge's credibility resolutions and the
inferences that he drew from the record, including his
application of the "missing witness" rule.  Id. at 14-24.  With
regard to unwarrantable failure, the Secretary contends that the
judge's determination is supported by the record.  Id. at 24-26.
Finally, in support of the judge's penalty assessment, the
Secretary states that the standard of review is abuse of
discretion, and asserts that none of Eagle's arguments establish
an abuse of discretion.  Id. at 26-29.

     A.   Violation

     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 Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  In reviewing the
whole record, an appellate tribunal must consider anything in the
record that "fairly detracts" from the weight of the evidence
that supports a challenged finding.  Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).

     We begin our consideration of the violations alleged in the
orders by rejecting the judge's reliance in finding violations on
Eagle's payment of the proposed penalty that arose from a prior
section 104(a) citation.  The prior citation charged Eagle with
several hazardous roof conditions, including a nonspecific
reference to kettle bottoms.  Gov't Ex. 14.  The orders at issue
in this proceeding, on the other hand, specifically cited kettle
bottoms by location that were not included in the preshift and
onshift examination reports.  Gov't Exs. 1 and 2.  Thus, it is
apparent from comparing the uncontested citation and the
contested orders in this proceeding that there is a lack of
identity of issues.[13]  Therefore, the citation is not of any
probative or precedential value to any aspect of the pending
orders at issue here.

     Further, the other "admission" on which the judge relied,
Massey president Hendrick's  statement to Workman, when shown the
painted cluster, that he paid his people to support kettle
bottoms, was merely a response to Workman's calling his attention
to the painted cluster and not probative of the presence of
kettle bottoms throughout the 2 North section.  Thus, Hendrick's
statement is of limited evidentiary value to our consideration of
the existence of the kettle bottoms in the 2 North section that
were included in the orders.

     Despite our rejection of the judge's reliance on these
"admissions," we nevertheless  conclude that there is substantial
evidence that establishes the presence of kettle bottoms.  The
major difference in the testimony of the Secretary's witnesses
and Eagle's witnesses concerned whether a kettle bottom included
a rim of coal separating it from the surrounding rock.  The
Secretary's position was that no rim of coal was necessary for
the existence of a kettle bottom, while Eagle's position was that
a rim of coal was an essential part of a kettle bottom.[14]  The
definition of kettle bottom adopted by the judge does not require
the presence of a ring of coal.

     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 [or she] 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) (quoting Ona Corp. v. NLRB, 729
F.2d 713, 719 (11th Cir. 1984)), aff'd sub nom. Sec'y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).

     The judge credited the testimony of MSHA investigators
Workman and Price, who had 45 and 27 years of experience,
respectively, that the kettle bottoms cited in the orders
existed.  22 FMSHRC at 871.  The judge further noted that kettle
bottoms were common in this geographical area and, in particular,
in the Eagle No. 1 mine.  Id.  The judge also found it
significant that Workman and Price viewed the areas of the mine
roof cited in the orders before abatement, thereby allowing them
to observe the conditions in the roof prior to the areas being
spray painted, roof bolted and supported with plates or headers,
which obstructed all or a portion of the outer perimeters.  See
Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 372-73 (Mar. 1993)
(judge was warranted in crediting MSHA's expert because
conditions observed by the operator's expert were different from
those in existence at time of citation).  In addition to the
testimony of the witnesses, the judge also found support for the
existence of kettle bottoms from the photographic evidence
submitted at trial.[15]  Jt. Ex. 1; Gov't Ex. 11.

     The judge's final basis for discrediting Eagle's expert, Dr.
Scovazzo, was his statement that the painted cluster was nothing
more than "doodling."[16]  22 FMSHRC at 871.  Scovazzo's doodling
explanation conformed to the explanation given by Eagle vice-
president Larry Ward that the painted cluster was graffiti.
However, the judge was persuaded by the testimony of other
witnesses that Eagle foremen used orange or red spray paint to
designate kettle bottoms that were to be bolted.  Tr. III at 281-
82 (Bias); Tr. III at 1195-1198 (Ward).  In these circumstances,
it was not unreasonable for the judge to conclude that Scovazzo's
doodling theory negatively impacted on his credibility as a
witness.

     Having found that the kettle bottoms that were the basis for
the order existed, the judge addressed the issue of the duration
of the cited conditions and Eagle's defense that the kettle
bottoms were obscured by slate and that mountain bumping exposed
them shortly before MSHA's inspection on February 26.  The
duration of the unsupported kettle bottoms is significant because
the orders cited Eagle for performing perfunctory preshift and
onshift examinations between February 24 and 26, when the areas
were mined thereby exposing the kettle bottoms.  The 17
examination reports that were written over this 3-day period did
not have any reference or notation relating to the unsupported
kettle bottoms that the MSHA inspectors observed on February 26.
See Gov't Ex. 13 A-W.  Therefore, key to establishing the
violations charged in the orders is verifying that the kettle
bottoms observed by the MSHA inspectors on February 26 went
unobserved and unsupported by Eagle as the areas were mined
during the period from February 24 to 26.

     The judge noted that the statements by Eagle foremen that
they failed to see unsupported kettle bottoms did not lead him to
conclude that they were not observable.  22 FMSHRC at 870.  The
judge further noted the self interest of Eagle personnel in
denying the existence of unsupported kettle bottoms in light of
the fatal roof accident that had occurred at the mine.  Id. at
872.  With regard to the painted cluster of kettle bottoms in the
No. 2 entry, the judge found that the kettle bottoms would have
been exposed and then painted just minutes before the fatal
accident on February 26, if mountain bumping exposed them - a
theory the judge rejected as "implausible."  Id.

     In the absence of direct credited evidence on the issue of
duration of the kettle bottoms, the judge looked to
circumstantial evidence "to establish a violation by inference."
Id.  The Commission has held that "the substantial evidence
standard may be met by reasonable inferences drawn from indirect
evidence."  Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May
1984).  The Commission has emphasized that inferences drawn by
the judge are "permissible provided they are inherently
reasonable and there is a logical and rational connection between
the evidentiary facts and the ultimate fact inferred."  Id.

     We find that substantial evidence supports the judge's
rejection of Eagle's defense that mountain bumping exposed the
previously obscured kettle bottoms on February 26, just before
the MSHA inspection.  We note in particular that the judge relied
on the presence of continuous miner bit marks that would have
been obliterated if the roof had sloughed; tight roof plates that
would have loosened if sloughing had occurred; and no evidence of
roof sloughage on the mine floor to indicate that conditions had
been recently exposed because of mountain bumping.  22 FMSHRC at
872.[17]

     Further, based on these facts, it was reasonable for the
judge to infer that the cluster of kettle bottoms was exposed
when that section was mined during the normal mining cycle on
February 24.  See Windsor Coal Co., 21 FMSHRC 997, 1002 (Sept.
1999) (Commission has permitted duration to be established
through the use of circumstantial evidence).  For the same
reasons, it was appropriate for the judge to conclude that the
remaining unpainted kettle bottoms were exposed during the normal
cycles between February 24 and February 26, 1998.  Given the
repeated failure of the preshift and onshift examiners to observe
and report the visible kettle bottoms between February 24 and 26
(see Gov't Exs. 13 A-W), substantial evidence supports the
judge's conclusion that Eagle violated sections 75.360(b) and
75.362(a)(1) governing  preshift and onshift examinations.

     B.   Unwarrantable Failure

     The unwarrantable failure terminology is taken from section
104(d) of the 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. MSHA, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).

     Whether conduct is "aggravated" in the context of
unwarrantable failure is determined by looking at all the facts
and circumstances of each case to see if any aggravating factors
exist, such as the length of time that the violation has existed,
the extent of the violative condition, whether the operator has
been placed on notice that greater efforts are necessary for
compliance, the operator's efforts in abating the violative
condition, whether the violation is obvious or poses a high
degree of danger, and the operator's knowledge of the existence
of the violation.  See Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000), appeal docketed, No. 01-1228 (4th Cir. Feb. 21,
2001) ("Consol"); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813
(Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody
Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988).  All of the relevant facts and
circumstances of each case must be examined to determine if an
actors's conduct is aggravated, or whether mitigating
circumstances exist.  Consol, 22 FMSHRC at 353.

     Eagle's primary argument on review is that substantial
evidence does not support the judge's unwarrantability
determination and that he improperly applied the missing witness
rule.  Relying on testimony of Eagle witnesses concerning when
the dumping point at the No. 2 entry was mined, thereby exposing
the cluster of three kettle bottoms, the judge found that Eagle
could have called as a witness the individual who painted the
cluster of three kettle bottoms (22 FMSHRC at 873), or the
centerline that ran through one of the painted kettle bottoms.
Id. at 874.  Its failure to call that witness led the judge to
infer that the witness would have testified that the cited
conditions were painted contemporaneously with the centerline
during the mining cycle on the day shift on February 24, 1998.
Id.

     Generally, the missing witness rule provides that the
failure to call an available witness who is within one party's
control and has knowledge pertaining to a material issue may, if
not satisfactorily explained, lead to an inference or presumption
that the witness' testimony would have been adverse to the party.
75B Am Jur 2d � 1315.  Application of the rule is within the
sound discretion of the trial judge.  Wilson v. Merrell Dow
Pharmaceuticals, Inc., 893 F.2d 1149, 1150 (10th Cir. 1990).
Many courts consider the following factors when determining
whether an inference is appropriate: (1) the party against whom
the inference is sought has the power to produce the witness; (2)
the witness is not one who would ordinarily be expected to be
biased against the party; (3) the witness' testimony is not
comparatively unimportant, or cumulative, or inferior to what is
already utilized; and (4) the witness is not equally available to
testify for either side.  York v. AT&T, 95 F.3d 948, 955 (10th
Cir. 1996).  If these criteria are satisfactorily proven, the
fact finder may draw an inference against the party who failed to
call the material witness.[18]

     The judge found that Eagle did not present any evidence when
and by whom the kettle bottoms were painted to support its
argument that the painted kettle bottoms were exposed by mountain
bumping and painted only minutes before the February 26 accident
and MSHA's  investigation.  22 FMSHRC at 872-73.  The judge
concluded that Eagle's failure to call the employee responsible
for painting the kettle bottoms to testify about the matter
created an adverse inference that the alleged witness would
testify unfavorably to Eagle.  Id. at 874.  The judge reasoned
that Eagle knew or should have known who painted the kettle
bottoms, because under its normal operating procedures, the
centerline and kettle bottoms were painted either by the foreman
or at the foreman's direction.  Id.

     The identity of the witness who painted the kettle bottoms
apparently was not known to either party.[19]  Eagle called as
witnesses the foreman on each of the three shifts who was
responsible for performing inspections and marking the mine roof
for bolting during the period February 24 to 26, as well as other
foremen who worked in the 2 North section.  Each of the foremen
denied painting the cluster of three kettle bottoms or the
centerline.[20]  Tr. II 368, 378-79, 386-87, 441-42, 540-41
(Saunders); Tr. II 784, 850-51 (Fisher); Tr. II 865-66, 911-14
(Miles); Tr. III 459-62 (Lovejoy).  The judge's inference is
based on his finding that Eagle had actual or constructive
knowledge of who painted the kettle bottoms.  22 FMSHRC at 873-
74.  We conclude that, in the circumstances of this case, the
judge's application of the adverse inference was unreasonable.
See, e.g., Strong v. United States, 665 A.2d 194, 197 (D.C. App.
1995) ("if a party has made reasonable efforts to produce the
witness without success, no adverse inference will be
permitted"); see also United States v. Blakemore, 489 F.2d 193,
195 (6th Cir. 1973) ("`Availability' of a witness to a party must
take into account both practical and physical considerations.").

     Moreover, the Secretary bears the burden of proving by a
preponderance of the credible evidence that an operator's
conduct, as it relates to a violation, is unwarrantable.  Peabody
Coal Co., 18 FMSHRC 494, 499 (Apr. 1996).  Here, the judge
improperly allocated the burden of proof on Eagle to establish
when the kettle bottoms were painted, a finding pivotal to the
judge's unwarrantable failure conclusion.

     Because the judge's application of the missing witness rule
was unwarranted, his resultant finding that the three kettle
bottoms were painted since the area was mined on February 24,
1998 (and therefore more obvious) must be reexamined.  On remand,
the judge must reexamine the record and any reasonable
inferences[21] drawn from it to determine whether the Secretary
has established by a preponderance of the evidence that the
kettle bottoms were painted as early as February 24, whether they
were painted later, or whether there is no evidence in the record
as to when they were painted.[22]  If the Secretary failed to
establish when the cluster of kettle bottoms was painted, the
judge must nevertheless also consider whether any miners saw or
should have discovered the kettle bottoms.

     In three of the four factors that the judge considered in
relation to unwarrantability, he placed primary reliance on the
existence of the cluster of kettle bottoms.  We find, however,
that the judge examined the violations too narrowly in focusing
almost exclusively on the three painted kettle bottoms in the No.
2 entry to the exclusion of the other six kettle bottoms.  See 22
FMSHRC at 877-78.  See also Emery Mining Corp., 9 FMSHRC at 2004-
05 (roof support violation not unwarrantable where four roof
bolts, among different, hundreds, had popped their plates).  The
other cited kettle bottoms present circumstances that require
full consideration in making an unwarrantability determination.
On remand, the judge thus must consider the obviousness of all
the kettle bottoms and the overall extent of the violative
conditions.

     For all these reasons, we must vacate and remand the judge's
unwarrantable failure determinations.[23]

     C.   Penalties

     The Commission's judges are accorded broad discretion in
assessing civil penalties under the Mine Act.  Westmoreland Coal
Co., 8 FMSHRC 491, 492 (Apr. 1986).  Such discretion is not
unbounded, however, and must reflect proper consideration of the
penalty criteria set forth in section 110(i) and the deterrent
purpose of the Act.[24]  Id. (citing Sellersburg Stone Co., 5
FMSHRC 287, 290-94 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir.
1984)).  The judge must make "[f]indings of fact on each of the
statutory criteria [that] not only provide the operator with the
required notice as to the basis upon which it is being assessed a
particular penalty, but also provide the Commission and the
courts . . . with the necessary foundation upon which to base a
determination as to whether the penalties assessed by the judge
are appropriate, excessive, or insufficient."  Sellersburg, 5
FMSHRC at 292-93.  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).  "An explanation is particularly essential when
a judge's penalty assessment substantially diverges from the
Secretary's original penalty proposal."  Douglas Rushford
Trucking, 22 FMSHRC 598, 601 (May 2000) (citing Sellersburg, 5
FMSHRC at 293).  In reviewing a judge's penalty assessment, the
Commission must determine whether the judge's findings with
regard to the penalty criteria are in accord with these
principles and supported by substantial evidence.

     Eagle asserts that substantial evidence does not support the
judge's findings on gravity and negligence.[25]  With regard to
these two penalty criteria, the judge appears to have focused
exclusively on the painted cluster of kettle bottoms.  22 FMSHRC
at 879.  Because we have concluded that the judge's inference
that the cluster of kettle bottoms was painted on February 24 was
unwarranted, the primary basis for his analysis of two of the
penalty criteria is no longer valid.  Additionally, in a final
wrap-up analysis in which he considered the penalty criteria in
their entirety, the judge again relied upon "the highlighted
hazardous roof conditions in close proximity to the dumping
point."  Id. at 880.

     Thus, it appears that the painted kettle bottoms, which the
judge inferred were in existence since February 24, played a
major part in the judge's assessment of penalties, which he
doubled from $3000 to $6000 for each order.  In light of our
prior analysis concerning the use of the missing witness rule and
the inference that the cluster of kettle bottoms was painted on
February 24, we conclude that the judge's penalty assessment must
be vacated and remanded for further consideration in light of our
opinion.  In addition to the erroneous inference that the cluster
of kettle bottoms was painted on February 24 based on
misapplication of the missing witness rule, the judge must
consider all the kettle bottoms, not just the painted cluster, in
his consideration of penalties.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's conclusion
that Eagle violated the Mine Act but vacate and remand his
conclusions with regard to unwarrantability and penalties.


                                  Theodore F. Verheggen, Chairman
                                                                      
                                  James C. Riley, Commissioner
                                   
                                  Robert H. Betty, Commissioner


**FOOTNOTES**

     [1]:   "Slickenside"  is  defined  in  Dictionary of Mining,
Mineral, and Related Terms, 1025 (1968) (U.S.  Dept. of Interior,
Bureau  of  the  Mines)  as  follows,  "A polished and  sometimes
striated surface on the walls of a vein, or on interior joints of
the  vein material or rock masses.  Produced  by  rubbing  during
faulting, on the sides of fissures, or on bedding planes."

     [2]:   The Dictionary of Mining, Mineral, and Related Terms,
297 (2d ed. 1997) (American Geological Institute) defines "kettle
bottom" as follows,

          A smooth,  rounded piece of rock, cylindrical
          in shape, which may drop out of the roof of a
          mine  without   warning,   sometimes  causing
          serious  injuries  to  miners.   The  surface
          usually   has  a  scratched,   striated,   or
          slickensided  appearance and frequently has a
          slick, soapy, unctuous  feel.   The origin of
          this feature is thought to be the  remains of
          the stump of a tree that has been replaced by
          sediment  so that the original form has  been
          rather well preserved.

A publication issued  by the Department of the Interior described
a  kettle bottom as follows:  "Kettle  bottoms  .  .  .  are  the
fossilized  remains  of  trees  that  grew in ancient peat (coal)
swamps     . . . .  Kettle bottoms can  be  found in either shale
or  sandstone  roof  rock.  . . .  Normally, kettle  bottoms  are
highly slickensided and surrounded  by  a 0.25- to 0.75-in.`ring'
of   coal."    Bureau   of   Mines,   Information  Circular/1992,
"Preventing Coal Mine Groundfall Accidents:  How  to Identify and
Respond to Geologic Hazards and Prevent Unsafe Worker  Behavior,"
8 (1992).  Gov't Ex. 17.

     [3]:  "Tr." references are to the transcript of the  hearing
held  before  the  administrative law judge.  Cumulatively, there
were  10  days  of hearing,  which  convened  on  three  separate
occasions.  "Tr. I" refers to the pages of the transcript volumes
from the hearing on September 14-17, 1999; "Tr. II" refers to the
pages of the transcript volumes from the hearing on December 7-9,
1999; and "Tr. III" refers to the pages of the transcript volumes
from the hearing on February 15-17, 2000.

     [4]:  Gartin  ran  out  of  film  after  he photographed the
painted  cluster of kettle bottoms, and he could  not  photograph
any of the  other  kettle  bottoms that were observed on February
26.   22 FMSHRC at 864.  Months  later,  on  November  21,  1998,
shortly before the No. 2 section of the mine was to be abandoned,
Eagle had  photographs  taken  of  many  of the kettle bottoms at
issue in this proceeding.  Id.  By that time, many of these areas
of  the  roof  were  partially obscured by spray  painting,  rock
dusting, and roof bolting plates and headers.  See Jt. Ex. 1.

     [5]:  This kettle  bottom  was  not  cited  in either of the
orders that subsequently issued.  Id. at 865.

     [6]:  Section 75.202(a) provides:

          The  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 and coal or rock bursts.

     [7]:   The  citation   specified   the   following
          condition as a violation:

          The   mine   roof  and  coal  ribs  were  not
          supported adequately to control the mine roof
          and  ribs  to protect  persons  from  hazards
          related to falls of the roof or ribs in the 2
          North section  MMU  013-0.  Beginning at spad
          line 2662 and 2661 and extending inby to face
          line of No. 1 entry, a distance of 350' and a
          distance of 370' in No.  2  and No. 3 entries
          the following condition [sic] were present in
          several  locations,  kettle  bottoms  present
          with  no  support,  loose  coal  broken,  and
          hanging, cracks present along the  coal  ribs
          with  no  support, No. 1 entry had been mined
          22'10" wide  to  23'  wide with no additional
          supports installed.

     Gov't Ex. 14.

     [8]:  Section 75.360(b) provides, in pertinent part:

          (b)  The  person  conducting   the   preshift
          examination   shall   examine  for  hazardous
          conditions . . .  at the following locations:

          (1)    Roadways,   travelways    and    track
          haulageways   where  persons  are  scheduled,
          prior  to  the  beginning   of  the  preshift
          examination,  to  work or travel  during  the
          oncoming shift.

          (2)  Belt conveyors  that  will  be  used  to
          transport  persons  during the oncoming shift
          and the entries in which these belt conveyors
          are located.

          (3)   Working  sections   and   areas   where
          mechanized    mining   equipment   is   being
          installed or removed,  if anyone is scheduled
          to work on the section or  in the area during
          the   oncoming  shift.  The  scope   of   the
          examination shall include the working places,
          approaches    to    worked-out    areas   and
          ventilation controls on these sections and in
          these   areas,   and  the  examination  shall
          include  tests  of the  roof,  face  and  rib
          conditions on these  sections  and  in  these
          areas.

           . . . .

          (10)  Other areas where work or travel during
          the oncoming  shift is scheduled prior to the
          beginning of the preshift examination.

     [9]:      Section   75.362(a)(1)    provides,   in
          pertinent part:

          At  least  once  during each shift,  or  more
          often if necessary  for  safety,  a certified
          person designated by the operator shall
          conduct  an  on-shift  examination  of   each
          section  where  anyone  is  assigned  to work
          during the shift and any area where
          mechanized    mining   equipment   is   being
          installed or removed  during  the  shift. The
          certified person shall check for hazardous
          conditions,   test  for  methane  and  oxygen
          deficiency,  and  determine  if  the  air  is
          moving in its proper direction.

     [10]: Eagle has not appealed the S&S determination to the 
Commission.

     [11]:  Although Eagle addresses the use of the "missing 
witness"  rule  in  relation to the judge's  unwarrantability  
determination  (E. Br.  at  12) the judge applied the rule in
rejecting  Eagle's  defense  to the violation charged - that 
mountain bumping exposed the kettle bottoms  shortly before  
the  MSHA inspection on February 26.  22 FMSHRC at 873-74.

     [12]: While Eagle initially included in its petition for 
review  the  argument  that  the judge  engaged  in persistent 
questioning  of  witnesses   that   demonstrated   bias  and
partiality   and   interfered   with  Eagle's presentation  of 
its defense, it subsequently moved  to  withdraw  that  issue 
from  the Commission's consideration.  E.  Mot.,  dated May 23, 
2001.  The Commission grants Eagle's motion.

     [13]:  Neither the  res judicata  nor collateral estoppel  
doctrines  would require  that  the payment  of  the  penalty  
arising  from  the citation   control   the   outcome  of  the
litigation  over  the  subsequent orders. "Under the doctrine 
of res judicata, a judgment on the merits in a prior suit bars 
a second suit  involving the same parties or those in privity 
with them, based upon the same  claim. .  . . The crucial 
question is whether the clams involved in the two actions are  
identical;  if   not,  res  judicata  is inapplicable."  Faith 
Coal Co., 19 FMSHRC 1357, 1365 (Aug. 1997) (citations omitted).
As  for  collateral estoppel, "a judgment  on the merits  in a 
prior suit may preclude the relitigation in a subsequent suit 
of any issues actually litigated  and determined in the prior
suit. . . . Identity of issue is a fundamental  element that 
must be satisfied before collatera  estoppel may be applied."
Bethenergy  Mines,  Inc.,  14 FMSHRC  17,  26 (Jan. 1992) 
(citations omitted).

     [14]:  Compare Tr. I 110-16 (Workman), Tr. I 1108-10  
(Price),  Tr. II 181-83 (Price),  Tr.  II 203-04 (Casto),  and  
Tr.  III  81-82,  91-93 (Bias) with Tr. II 367-68 (Saunders), 
Tr.  II 554  (Walker), Tr. II 885-86 (Miles), Tr. III 381-82
(Lovejoy),  and  Tr.  III  515,  536 (Scovazzo).

     [15]:  Eagle contends  that  one area of the roof, which 
it conceded possibly  could  have  been categorized  as  a  
kettle bottom, was nevertheless adequately supported with a 
bolt through  the  center  because  the  bolt was driven into
a "rider seam" that was above the kettle  bottom.   E.  Br. 
at 8 & n.5.  Eagle argues  that the judge ignored Scovazzo's
explanation that the kettle  bottom  was adequately supported. 
Id. at 8.  The judge failed to make any findings  on  whether  
the kettle   bottom   was  adequately  supported, although he 
should  have. But this error is harmless because, even if the 
bolted  kettle bottom was adequately supported and therefore
not  a  hazard  for purposes of per-shift and on-shift  
inspections,  the  various other kettle bottoms that Eagle 
failed to record in its  examination  books  amply  support 
the judge's findings of violations.

     [16]:   Eagle  argues that Scovazzo's response was
"coerced."  E. Br. at 9.  However, Scovazzo's testimony was 
consistent with other Eagle witnesses who testified portions  
of the painted roof represented "graffiti." E.g., Tr. II 785 
(Fisher); Tr. III  1137-38 (Ward). Moreover, the testimony  
appears  to  be consistent  with   Eagle's   position  taken
throughout the  hearing. See  Tr.  I  825 (cross-examination  
of  Workman).  Therefore, we  cannot conclude that the judge 
coerced this particular answer from Eagle's expert.

     [17]:  We find that  the  judge's reliance on what he 
characterized as a  painted  centerline (a line  that  is  
generally drawn by a  foreman just after an area is mined) 
to be problematic in  light of  Eagle's testimony that the 
lines were drawn later  to guide the installation  of  belt  
hangers.  But this problem  does  not  sufficiently detract 
from the  evidence  in  support   of  the  judge's finding 
for us to disturb it.

     [18]:  The  burden  of demonstrating  that these criteria 
are satisfied  rests  with the party requesting application of 
the inference. Id. (citing Wilson, 893 F.2d at 1151). Here, 
the issue of the use of the missing  witness rule was  raised  
at  trial  (by  the  judge)  and briefed by the parties.

     [19]:  No witness called either by the Secretary or Eagle 
testified  that  he saw the painted kettle  bottoms prior to  
the accident investigation on February 26.

     [20]:   If, as the Secretary alleges, the kettle bottoms  
were painted during the day shift on February 24, the foreman 
during that shift would  be  the best person to testify about
that matter.  See  22  FMSHRC  at 874.  Larry Saunders,  the 
day shift foreman  during  the relevant time period (Tr. II. 
350-51), denied painting  the   centerline  or  the  kettle
bottoms.  Tr. II 368, 378-79, 386-87, 441-42, 540-41.

     [21]:  Our  colleague  errs in drawing several inferences 
from the record. See, e.g., slip op. at  21-22. The Commission 
has long held that judges  may  draw inferences from record
facts  so  long  as  those   inferences   are "inherently  
reasonable  and there [exists] a rational connection between  
the  evidentiary facts   and   the  ultimate  fact  inferred."
Garden Creek Pocahontas  Co., 11 FMSHRC 2148, 2153 (Nov. 1989).  
While it  is possible that inferences  could  have been drawn  
from the record, it is for the trier of fact to decide between 
reasonable inferences  in  the  first instance.  See  generally 
9A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure � 2528 (2d ed. 1995).

     [22]:  Commissioner Jordan suggests that the judge made a
finding, independent of his use of the missing witness rule,
that the kettle bottoms were painted on February 24. Slip op. 
at 23. We disagree.   The  judge's  finding  on this issue  
follows  his  use  of  the rule in his decision, and our 
colleague only reaches this finding after drawing several 
inferences that the judge did not. Slip op. at 21-22.

     [23]:  Our colleague's suggestion that the judge's
unwarrantability determination  could somehow "be  attributed 
to the implausible  theories Eagle put forward," slip op. at 
23, finds no support in Commission  caselaw.  It cannot be
seriously questioned that the Secretary bears the  burden of 
affirmatively proving the elements of unwarrantable failure  
without regard to the merits of an operator's defense.

     [24]:  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).

     [25]:  The judge's  analysis  on  the  remaining  criteria
appears adequate, 22 FMSHRC  at  879,  and Eagle  does not argue
otherwise. Compare Hubb Corp., 22 FMSHRC 606, 612-13 (May 2000).


Commissioner Jordan, concurring in part and dissenting in part:

     This case involves the failure of three foremen to note
hazardous roof conditions in preshift and onshift reports for a
period of at least two days.  The judge concluded that
"unsupported portions of roof that could fall at any moment,
located in a heavily traveled area of the mine, were permitted to
exist even after they had been identified by orange spray paint."
22 FMSHRC at 879.  He determined that Eagle Energy's inadequate
mine examinations amounted to an unwarrantable failure to comply
with the requirements of 30 C.F.R. �� 75.360(b) and 75.362(a)(1).
Because, as I explain below, that determination is supported by
substantial evidence,[1] I would affirm his decision.[2]

     The underlying condition prompting the issuance of the two
orders under review was Eagle's failure to disclose, in its
preshift or onshift books, a single one of the nine hazardous
roof conditions (known as kettle bottoms) observed by MSHA
inspectors during their investigation on February 26.  In finding
the violations unwarrantable, the judge properly applied the
factors the Commission has considered in analyzing a charge of
unwarrantable failure, which include the extent of the violative
condition, the length of time that it has existed, whether the
violation is obvious, and the degree of danger it poses.  Mullins
& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);  Peabody Coal
Co., 14 FMSHRC 1258, 1261 (Aug. 1992).  Also pertinent to this
analysis is whether the operator had been placed on notice that
greater efforts were necessary for compliance, Amax Coal Co., 19
FMSHRC 846, 851 (May 1997), and the operator's efforts at abating
the violative condition, New Warwick Mining Co., 18 FMSHRC 1568,
1574 (Sept. 1996).  Applying these considerations to the
violations at issue, the judge concluded that  "the evidence
clearly reflects the requisite unjustifiable conduct to support
an unwarrantable failure."  22 FMSHRC at 878.

     According to my colleagues, the judge's unwarrantable
failure finding stems from his conclusion that the cluster of
three kettle bottoms inby the dumping point had been circled with
reflective paint since February 24, making the omission of any
reference to this condition during the subsequent seventeen
examinations particularly egregious.  Slip op. at 15.  Since they
consider the February 24 date to have been reached only by
inappropriately applying the missing witness rule, my colleagues
conclude that the judge's unwarrantable failure determination
cannot stand.  Id.  They are mistaken.  First, as my colleagues
concede, the judge applied the missing witness rule when he
rejected Eagle's mountain bumping defense, but did not utilize it
in his unwarrantable failure analysis.  Slip op. at 8, n.11,
citing 22 FMSHRC at 873-74.   In any event, there is ample
evidence in the record to support the judge's conclusion that the
kettle bottom cluster was painted on February 24, without
resorting to inferences based on a missing witness rule.
Therefore, even assuming arguendo that the judge's application of
the missing witness rule was inappropriate, that mistake would
amount to harmless error.

     Underlying the question of when the kettle bottoms were
painted is the issue of when they became visible.  Eagle contends
that eight of the nine kettle bottoms may not have been
observable until after the mountain bumping, shortly before the
MSHA inspector saw them on February 26.  E. Br. at 7.  I concur
with my colleagues' determination that the judge appropriately
rejected this theory, slip op. at 12, and that substantial
evidence supports his finding that the cluster of three kettle
bottoms inby the dumping point of the No. 2 entry was exposed
(and therefore visible) during the normal mining cycle of this
entry on February 24.  Id.[3]

     Turning to the painting of the kettle bottom cluster, my
colleagues contend that the judge "improperly allocated the
burden of proof on Eagle to establish when the kettle bottoms
were painted,"[4] a finding they claim is "pivotal to the judge's
unwarrantable failure conclusion."  Slip op. at 15.  My
colleagues are wrong.  In his unwarrantable failure analysis, the
judge concluded that evidence pertaining to the bit marks and
centerline showed that the kettle bottoms were revealed and
painted during the February 24 day shift.  22 FMSHRC at 877.  The
judge did not shift the burden of proof - he simply drew rational
connections from the evidence.

     The record indicates a centerline is typically painted on
the roof as an entry is mined, to
guide the continuous miner in making the next cut.  Id. at 863,
872; Tr. II 387; Tr. II 704-705.  Evidence was introduced in this
case that showed two painted lines on the roof of the No. 2
entry.  22 FMSHRC at 878, n.6, Gov't Ex. 11A.  The judge
determined that one line was drawn as a centerline, and the other
line was drawn as a belt hanger line.  22 FMSHRC at 878, n.6.
Given that the relevant part of the entry was mined on February
24, the judge concluded that the centerline was also drawn on
that date.  Id. at 872.

     The centerline the judge found was drawn on February 24
extended through the middle of one of the three kettle bottoms
inby the dumping point.  Id. at 863, citing Gov't Ex. 11A; 22
FMSHRC at 872.  It is reasonable to infer that a person who
paints a line right over a kettle bottom would notice this
hazardous condition.  As my colleagues acknowledge, when kettle
bottoms are encountered at Eagle's mine, foremen usually use
chalk or spray paint to signal the roof bolters that additional
support is needed, or they danger them off.  Slip op at 2-3.
Indeed the judge pointed out this was how Eagle highlighted roof
irregularities while abating a citation for inadequate roof
support and ribs.  22 FMSHRC at 865.  Finally, it is undisputed
that, at the time MSHA observed them on February 26, each of the
three kettle bottoms inby the dumping point had been circled in
the same orange paint that was used to draw the centerline.  Id.
at 863.

     Since the kettle bottom cluster denoted hazardous roof
conditions that needed additional support, and since the person
painting the centerline would have noticed at least one of the
kettle bottoms in the cluster as he or she painted the centerline
right over it, and since the record reflects that the three
kettle bottoms in the cluster were each circled with the same
paint used to draw the centerline, it is reasonable to infer that
whoever painted the centerline on February 24 observed these
kettle bottoms and, consistent with the practice at the mine,
circled the hazardous conditions at that time.  Therefore,
substantial evidence supports the judge's conclusion that the
kettle bottom cluster was painted (and therefore obvious) on
February 24.[5]

     Although supported by substantial evidence, the
determination that the kettle bottom cluster was painted on
February 24 is not a finding pivotal to the judge's unwarrantable
failure ruling, as my colleagues would have us believe.  Slip. op
at 15.  Regardless of when they were painted or who painted them,
the fact remains that on February 26, when they were observed by
MSHA, three kettlebottoms, in close proximity, were each
highlighted with a circle of reflective orange paint.  22 FMSHRC
at 863.  While the evidence can support the conclusion that they
were painted as early as February 24, the fact that they might
have been painted later does not undermine the judge's
unwarrantability determination.   Once they were painted with the
reflective orange paint, the conditions were so obvious that, as
the judge noted,  "even the failure to note hazardous conditions
that were marked for remedial action during the course of one
preshift or onshift examination may constitute unwarrantable
conduct."  Id. at 877 (emphasis in original).[6]

     In addition, it would be reasonable to conclude that the
person who painted the centerline through one of the kettle
bottoms was a foreman, since the record reflects that this is the
employee who usually does that job. Tr. II 248,  Tr. III 62, 445.
Although the three foreman denied painting this particular
centerline (indeed they denied even seeing it), the judge
indicated he did not find their testimony credible:  "In
addressing the issue of duration, I note that it is not
surprising that Eagle Energy's section foreman and other
management personnel have denied knowledge of unsupported
kettlebottoms, including those painted inby the dumping point,
given the fact that a fatal roof accident had just occurred."
Id. at 872.[7]

     A foreman observing a hazardous roof condition on February
24, and the preshift and onshift books making no mention of  the
condition during seventeen subsequent inspections, justifies the
conclusion that mandatory inspections were being carried out in
such perfunctory manner as to indicate indifference worthy of the
unwarrantable failure label. In other words, an unwarrantable
failure determination is supported by the evidence in this case,
without even relying on the fact that the cluster of kettle
bottoms had been circled with paint.

     Moreover, the question of when the kettle bottoms were
painted goes to only one of the many factors in an unwarrantable
failure analysis - the issue of whether the violations were
obvious.  Substantial evidence supports the judge's determination
that the Secretary met her burden of proof regarding several
other factors pertinent to the unwarrantable failure analysis as
well.   For example, the judge's finding that the duration of
Eagle's failure to note the hazards was indicative of
unwarrantable failure is clearly supported by the record
evidence.  Regardless of when the three kettle bottoms inby the
loading point were painted to draw attention to the need for
remedial action, they were, as my colleagues agree, visible as of
February 24.  Slip op. at 12.  Furthermore, as the judge pointed
out, at least three kettle bottoms must have been observed prior
to MSHA's inspection by the person who painted  them.   22 FMSHRC
at 872.

     In terms of the degree of danger created by these
violations, the judge found that the kettle bottoms were
repeatedly overlooked by the foremen conducting the examinations,
and that this created an extremely dangerous situation due to the
unpredictable nature of kettle bottoms.  Id. at 877.  This is
consistent with his determination that the violation was
significant and substantial ("S&S"), a finding that Eagle did not
appeal.  In his S&S analysis, the judge found that "there was a
reasonable likelihood that the roof hazard contributed to by
Eagle Energy's repeated inadequate preshift and onshift
examinations will result in injury, and, that that injury will be
reasonably serious, if not fatal, in nature."  Id. at 876.  In
making this finding, he relied on abundant record evidence
demonstrating the potential dangers of kettle bottoms, including
a coal geology atlas introduced into evidence by Eagle which
stated that kettle bottoms can fall without warning, causing
injuries and fatalities, and that "`identification [of
kettlebottoms] and subsequent support during mining is
critical.'" 22 FMSHRC at 875, citing Resp't Ex 3 at 2.  Roger
Lovejoy, Eagle's evening shift foreman, testified that a kettle
bottom is a hazardous condition because it can fall without any
warning.  Tr. III at 373.  Inspector Workman testified that the
kettle bottoms "could kill anyone at any time."  Tr. I at 668.
Substantial evidence thus supports the judge's finding that the
foremen's repeated oversights in failing to note these hazardous
conditions in their reports were "extremely dangerous."  22
FMSHRC at 877.[8]

     The judge's unwarrantability determination can more
appropriately be attributed to the implausible theories Eagle put
forward, rather than to an erroneous application by the judge of
a missing witness rule or burden of proof.  Eagle maintained that
none of the nine areas MSHA cited were kettle bottoms - they were
instead "roof irregularities" that appeared as a result of
mountain bumping, on February 26.  Id. at 867.  Coincidentally,
between the time the mountain bumping allegedly caused these roof
irregularities, and the time of the fatal accident, Eagle would
have us believe that someone decided to doodle with spray paint.
Id. at 873.  According to Eagle, the circles that were painted
around three of the irregularities, did not indicate a need for
additional roof support, they were merely the way the graffiti
artist decided to express him or herself.  E. Br. at 16.
Attempting to be charitable, the judge indicated he found Eagle's
theories "unavailing."  22 FMSHRC at 871.

     The majority's remand instructions charge the judge with
making three discrete findings -  two of which I may add, he has
already made.  First the majority requires him to review the
record and any reasonable inferences drawn from it to determine
whether the Secretary established when the kettle bottoms were
painted.  Slip op. at 15.  But, as noted above, the judge has
already found that "[t]he bit marks and centerline reflect the
kettle bottoms were revealed and painted during the mining cycle
on the day shift of February 24, 1998."  22 FMSHRC at 877.

     Second, the majority instructs him to consider whether any
miners saw or should have discovered the kettlebottoms.  Slip op.
at 15.  However, he has already found that the kettle bottoms
existed as early as February 24, and that the preshift and
onshift examiners repeatedly failed to note them from February 24
through February 26.  22 FMSHRC at 872.  Thus he has already
determined that the kettle bottoms should have been discovered.

     The majority's third and final remand order directs the
judge to consider "the obviousness of all the kettle bottoms and
the overall extent of the violative conditions."  Slip op. at 15.
I must take issue with the premise of this instruction, which is
that the judge "examined the violations too narrowly in focusing
almost exclusively on the three painted ketttlebottoms in the No.
2 entry to the exclusion of the other six kettlebottoms."  Id.
It is one thing for the Commission to vacate an unwarrantability
determination that fails to take mitigating evidence into
account, but here the majority finds fault because the judge
relied on the most egregious aspect of the cited condition, and
failed to discuss additional, culpable behavior on the part of
the operator.  Surely my colleagues do not think lesser
violations should mitigate more serious ones.[9]  Such an
approach would certainly turn the unwarrantable failure provision
on its head.  Their decision, however, may well give readers the
mistaken view that an operator, attempting to defend itself
against the charge that its failure to report obvious roof
hazards amounted to unwarrantable conduct, should point out that
it also neglected to report less obvious conditions.

     The persistent failure of Eagle's foremen to thoroughly
conduct preshift and on-shift examinations so that the kettle
bottoms could be detected, noted, and supported, establishes
aggravated conduct constituting unwarrantable failure.
Accordingly, I would affirm the judge, and thus respectfully
dissent.


                                   Mary Lu Jordan, Commissioner


Distribution:

Julia K. Shreve, Esq.
Jackson & Kelly, PLLC
P.O. Box 553
Charleston, WV 25322

Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Jerold Feldman
Office of the Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041


**FOOTNOTES**

     [1]:   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 Consolidation
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [2]:   I  concur  in  the  majority's  ruling  affirming the
judge's finding of violations of the two regulations.

     [3]:  I also agree with the majority's conclusion  that  the
judge  properly  determined  that  the  remaining  five unpainted
kettle  bottoms  were  exposed  during  the normal mining  cycles
between February 24 and February 26.  Slip op at 12.

     [4]:   My  colleagues  provide  no  explanation   for   this
assertion.   Their  statement is somewhat puzzling because in the
judge's sole reference  to  burden of proof he confirms that "the
burden of proof that the kettle  bottoms  were visible and should
have  been  noted by the preshift and onshift  examiners  remains
with the Secretary."  22 FMSHRC at 872.

     [5]:  My  colleagues  agree  that  the  substantial evidence
standard may be met by reasonable inferences taken  from indirect
evidence.   Slip  op. at 12, citing Mid-Continent Res.,  Inc.,  6
FMSHRC  1132,  1138 (May  1984).   Here,  there  is  a  "rational
connection between  the  evidentiary  facts and the ultimate fact
[the  date  the  cluster was painted] inferred."    Garden  Creek
Pocahontas Co., 11 FMSHRC 2148, 2153 (Nov. 1989).

     [6]:  The last  preshift  exam  at  issue here took place on
February  26  between  1:30 p.m. and 2:40 p.m.   Gov't  Ex.  13W.
Thus, unless one accepts Eagle's argument that the kettle bottoms
were painted minutes before the fatal accident, which occurred at
approximately  2:50 p.m.  on  February  26,  one  would  have  to
conclude that the  kettle  bottoms  were  painted,  and therefore
obvious, during at least one preshift exam.

     [7]:    As   my   colleagues  note,  a  judge's  credibility
determinations  are entitled  to  great  weight  and  should  not
lightly  be  overturned.   Slip  op.  at  10.   See  also  Metric
Constructors,  Inc.,  6 FMSHRC 226, 232 (Feb. 1984) (when judge's
finding rests on credibility  determination,  Commission will not
substitute   its  judgement  for  that  of  judge  absent   clear
indication of error).  aff'd, 766 F.2d 469 (11th Cir. 1985).

     [8]:  An  additional  factor  relevant  to  an unwarrantable
failure  determination  is  the  extensiveness  of the  hazardous
conditions.   Quinland  Coals,  Inc.,  10 FMSHRC 705,  709  (June
1988).   The judge found the conditions extensive  because  there
were nine cited kettle bottoms.  22 FMSHRC at 877.

     [9]:   In  Emery  Mining Corp., 9 FMSHRC 1997, 2004-05 (Dec.
1987), the case relied on  by  the  majority  for the proposition
that the judge erred by focusing on three kettle  bottoms  to the
exclusion  of six others, the operator was cited for violating  a
roof control  standard.   The  judge's  finding  of unwarrantable
failure was based on his conclusion that four roof  bolts did not
have  bearing  plates and that they should have been detected  by
preshift or onshift  examiners.   9 FMSHRC at 2004.  However, the
Commission,  in  reversing  the  judge's   unwarrantable  failure
determination,  noted  that  Emery  was not indifferent  to  roof
support in that area of the mine, and  described  in  detail  the
herculean efforts of the operator to adequately support the roof,
including  actions  that  exceeded  the  requirements of its roof
control  plan.   Id.  It was thus making a comparison  between  a
small number of conditions  in  violation  of  the  roof  control
standard,  and a large area where there was attempted compliance.
Here, in contrast,  the  majority  is  instructing  the  judge to
consider the three painted kettle bottoms along with evidence  of
six  other violative  conditions, not evidence of compliance with
the regulations.