<DOC>
[DOCID: f:va998cd.wais]


 
VIRGINIA SLATE COMPANY
May 17, 2001
VA 99-8-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          May 17, 2001

SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA)        :
                               :
            v.                 :  Docket No. VA 99-8-M
                               :
VIRGINIA SLATE COMPANY         :

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

                            DECISION

BY:  Riley, Verheggen, and Beatty, Commissioners

     In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger determined that Virginia Slate Company ("Virginia
Slate") violated a number of safety standards, and that the
violations were not due to unwarrantable failure.  22 FMSHRC 378
(Mar. 2000) (ALJ).  The Commission granted the Secretary of
Labor's petition for discretionary review challenging the judge's
determinations of no unwarrantable failure.  For the following
reasons, we affirm in part, vacate in part, and remand, and we
vacate the penalty assessments and remand them for reassessment.

                               I.

                Factual and Procedural Background

     Virginia Slate mines slate from an open pit, crushes it in a
crusher, and uses it to make different materials.  22 FMSHRC at
378; Tr. I at 22.[1]  The company is owned by Adco Land
Corporation, which in turn is owned by V. Cassel Adamson Jr.,
Esq.  Tr. II at 90.  Adamson Jr. is also counsel for Virginia
Slate in this case.  V. Br. at 8.  On June 2, 1998, Ricky Joe
Horn, an inspector for the Department of Labor's Mine Safety and
Health Administration ("MSHA"), inspected Virginia Slate's
operation.  22 FMSHRC at 378.  As a result of the inspection,
Horn issued Order No. 7711661 under 30 C.F.R.  56.1407(a)
because there was no protective guard for the V-belt drive and
pulleys on the feeder attached to the crusher.  22 FMSHRC at 382.
The unguarded V-belt and pulleys were approximately 3 feet above
ground level.  Id.  Horn designated the violation significant and
substantial ("S&S")[2] and a result of the operator's
unwarrantable failure.  Id.; Gov't Ex. 2.

     The inspector issued Citation No. 7711663 under section
56.1407(a) because there was no protective guard on the tail
pulley for the No. 2 belt on the crusher.  Id. at 382-83.  The
unguarded tail pulley was located approximately 2 feet above
ground level.  Id.  Horn did not designate the violation S&S but
did designate it unwarrantable.  Gov't Ex. 3.

     The inspector issued Citation No. 7711665 under 30 C.F.R. 
56.11001 because there were no guard rails or catwalks to provide
safe access to clutch and throttle hand levers used to operate
the crusher.  22 FMSHRC at 383.  Access to the levers could only
be obtained by walking on a 6-inch wide I-beam located
approximately 6 feet above the ground.  Id.  Horn cited the
violation as S&S and unwarrantable.  Gov't Ex. 5.

     The inspector issued Order No. 7711667 under 30 C.F.R. 
56.9301 because there were no bumper blocks or any other impeding
devices to prevent a front-end loader, loading the hopper on the
crusher, from running into the hopper, hitting a rock, or
overturning.  22 FMSHRC at 385.  The inspector designated the
violation S&S and a result of the operator's unwarrantable
failure.  Gov't Ex. 6.

     The inspector issued Order No. 7711681 under 30 C.F.R. 
56.14100, which requires inspection of mobile equipment prior to
its being placed in operation on a shift.  22 FMSHRC at 390.  He
concluded that such preshift examinations had not been adequately
performed because he found a number of alleged mobile equipment
violations that would otherwise have been detected and corrected.
Id.; Gov't Ex. 11.  The inspector cited the violation as S&S and
unwarrantable.  Gov't Ex. 11.  Horn also issued several other
orders and citations to Virginia Slate.

     Virginia Slate challenged the orders and citations that are
the subject of this review (Order Nos. 7711661, 7711667, and
7711681, and Citation Nos. 7711663 and 7711665) as well as a
number of other orders and citations.  These matters proceeded to
hearing before Judge Weisberger.


**FOOTNOTES**

     [1]:  The transcript contains a separate volume for each day
of the three-day hearing.  Transcript references note the
appropriate hearing day by Roman numeral I through III followed
by the page number.

     [2]:  The S&S terminology is taken from section 104(d)(1) of
the Mine Act, 30 U.S.C.  814(d)(1), which distinguishes as more
serious any violation that "could significantly and substantially
contribute to the cause and effect of a . . . mine safety or
health hazard."

                               II.

                           Disposition

A.   Unwarrantable Failure Issues

     1.  Order No. 7711661 and Citation No. 7711663[3]

     As to Order No. 7711661, the judge determined that Virginia
Slate violated section 56.1407(a)[4] because there was no
protective guard on the V-belt drive and pulleys for the feeder
attached to the crusher.  22 FMSHRC at 382.  He determined that
the violation was S&S but did not result from the operator's
unwarrantable failure based on the credited testimony of Adamson
Jr. that the crusher had not operated during the period in
question.  Id.  As to Citation No. 7711663, he concluded that the
operator violated section 56.1407(a) because there was no guard
on the tail pulley for the No. 2 belt on the crusher.  Id. at
383.  He determined that the violation was not S&S, and did not
result from the operator's unwarrantable failure for the same
reasons as in his analysis of Order No. 7711661 and because the
guard at issue had been removed in order to clean the area.  Id.
The judge's unwarrantable failure analyses for both Order No.
7711661 and Citation No. 7711663 consisted of a reference to his
unwarrantable failure analysis for Citation No. 7711660, dealing
with a similar violation involving a missing guard on the
crusher.[5]  Id. at 378-79, 381-83.

     On review, the Secretary argues that the judge failed to
give weight in his unwarrantable analyses to the involvement of
supervisor Cassel Adamson III in the violations.  PDR[6] at 12-
14, 16.  She asserts that the judge also failed to give adequate
weight to out-of-court statements made by supervisor Adamson III
concerning the violations.  Id. at 14, 16.  She contends that,
because these out-of-court statements are admissions by a party-
opponent under Rule 801(d)(2)(D) of the Federal Rules of
Evidence,[7] the judge erred in treating them as hearsay.  Id.
The Secretary argues that the judge erred when he drew an adverse
inference against the Secretary because she did not call
supervisor Adamson III to testify, and when he failed to draw
such an inference against the operator because it did not call
Adamson III to testify.  Id.  She asserts that the judge erred in
both the order and the citation in crediting Adamson Jr.'s
testimony that the crusher was not in operation during the period
in question, and by ignoring miner Leroy Williams' testimony that
the crusher was operated without guards.  Id. at 15-16.  Virginia
Slate responds that the judge ignored evidence that the crusher
was out of service at the time of the inspection and claims that
the judge improperly admitted hearsay testimony.  V. Br. at 2-3.

     As a threshold matter, we reject the Secretary's assertion
that the judge erred by failing to draw an adverse inference
against Virginia Slate for not calling Adamson III as a witness.
It is well-established that an adverse inference may be drawn
against a party if the party fails to call as a material witness
a person who may reasonably be assumed to be favorably disposed
toward that party or a person who is peculiarly available to that
party.  United States v. Ariza-Ibarra, 651 F.2d 2, 15-16 (1st
Cir.), cert denied, 454 U.S. 895 (1981); 2 McCormick on Evidence
 264, at 174-76 (5th ed. 1999).  As an employee of Virginia
Slate and as Adamson Jr.'s son, it can be reasonably assumed that
Adamson III was favorably disposed toward Virginia Slate and was
peculiarly available as a witness to that party.  Ariza-Ibarra,
651 F.2d at 15-16; see Jones v. Otis Elevator Co., 861 F.2d 655,
659-60 (11th Cir. 1988) ("Because of an employee's economic
interests, the employer-employee relationship is recognized as"
making the employee peculiarly available as a witness to the
employer); Alan Stephens, Annotation, Adverse Presumption or
Inference Based on Party's Failure to Produce or Examine Family
Member Other than Spouse - Modern Cases, 80 A.L.R.4th 337, 373-77
(1990) (discussing cases where courts have drawn an adverse
inference against a party for failing to call a material witness
who is the party's son or daughter).  However, the decision to
draw an adverse inference against a party for not calling a
material witness to testify lies within the sound discretion of
the trier of fact.  See Overnite Transp. Co. v. NLRB, 140 F.3d
259, 267 n.1 (D.C. Cir. 1998) ("The decision to draw an adverse
inference has generally been held to be within the discretion of
the fact finder."); Underwriters Labs. Inc. v. NLRB, 147 F.3d
1048, 1054 (9th Cir. 1998) (the adverse inference rule "does not
create a conclusive presumption against the party failing to call
the witness") (quoting Rockingham Machine-Lunex Co. v. NLRB, 665
F.2d 303, 305 (8th Cir. 1981)).  There is nothing in the record
to indicate that the judge abused his discretion when he refused
to draw an adverse inference against Virginia Slate for not
calling Adamson III as a witness.[8]

     Regarding unwarrantable failure, that 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. 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
actor's conduct is aggravated, or whether mitigating
circumstances exist.  Consol, 22 FMSHRC at 353.

     The judge ruled that the violations in Order No. 7711661 and
Citation No. 7711663 were not unwarrantable for the same reasons
he relied on in determining the violation in Citation No. 7711660
was not unwarrantable.  22 FMSHRC at 382-83.  In fact, as
previously indicated, the judge merely referenced back to his
ruling on Citation No. 7711660, without even restating that
analysis with respect to the higher numbered order and
citation.[9]  Unlike his testimony about the belt violation in
Citation No. 7711660, however, Williams testified that the belts
involved in Order No. 7711661 and Citation No. 7711663 had both
been run in an unguarded state during production.  Tr. I at 164-
65, 169.  Based on this distinction in Williams' testimony, the
judge erred when he applied his credibility determination
concerning Williams' testimony about the belt violation in
Citation No. 7711660 to his unwarrantability analyses of the belt
violations in Order No. 7711661 and Citation No. 7711663, and
failed to consider Williams' testimony that the belts involved in
Order No. 7711661 and Citation No. 7711663 were run without
guards during production.[10]

     We are mindful that the record is anything but clear on a
number of these important issues.[11]  Nonetheless, testimony was
offered that, at least for some period of time, equipment was
operated, apparently in production mode, without guards.  Because
the judge imported his unwarrantable failure analysis from a
vacated citation into these other matters, we are unable to
determine if he appropriately considered such evidence and how he
disposed of it to reach a contrary result.  We therefore vacate
the judge's determinations as to unwarrantable failure with
respect to Order No. 7711661 and Citation No. 7711663 and remand
for the judge to properly consider testimony that fairly detracts
from his decision on that issue.

     2.  Citation No. 7711665[12]

     The judge determined that Virginia Slate violated section
56.11001[13] because there were no guard rails or catwalks to
provide safe access to the clutch and throttle levers used to
operate the crusher.  22 FMSHRC at 383.  He concluded that the
violation was S&S but did not result from the operator's
unwarrantable failure because, based on Adamson Jr.'s credited
testimony, the crusher had only been run for a short time without
the guards in order to test the crusher.  Id. at 383-84.

     On review, the Secretary argues that the judge failed to
give weight to foreman Terry's involvement in the violations and
to his out-of-court statements about the condition of the guard
railings and catwalk on the crusher.  PDR at 16-18.  She contends
that, because these out-of-court statements are admissions by a
party-opponent under Rule 801(d)(2)(D) of the Federal Rules of
Evidence, the judge erred in treating them as hearsay.  Id. at
18.  The Secretary asserts that the judge erred in drawing an
adverse inference against the Secretary because she did not call
Terry to testify and in failing to draw an adverse inference
against the operator because it did not call Terry to testify.
Id. at 18-19.  She asserts that the judge erred in crediting
Adamson Jr.'s testimony that the crusher was not operated during
the period in question and in ignoring miner Williams' testimony
that the crusher was operated without a safe means of access to
its controls.  Id. at 19.  Virginia Slate asserts that the judge
failed to consider evidence that the crusher was out of service
at the time of the inspection and that the judge improperly
admitted hearsay testimony.  V. Br. at 2-3.

     We reject the Secretary's assertion that the judge erred by
failing to give any weight to Williams' testimony about foreman
Terry's out-of-court statements indicating that Terry knew about
the missing guard railings and catwalk for several months but did
nothing about the problem.  Terry was not called as a witness.
The judge did not ignore Terry's out-of-court statements; rather
he noted that Terry was a foreman and that Williams testified
that Terry knew for several months that the crusher did not have
guard railings or a catwalk and that Terry had told him that he
did not know why they were missing.  22 FMSHRC at 383-84; Tr. I
at 185-86.  However, the judge did not place much weight on
Terry's out-of-court statements because they were not
corroborated.  22 FMSHRC at 383-84; see Mid-Continent Res., Inc.,
6 FMSHRC 1132, 1137 (May 1984) (examining contradictory or
corroborating evidence in evaluating out-of-court statements).
The judge determined that Williams' testimony was unclear as to
how long the crusher had operated without safe access.[14]  22
FMSHRC at 384.  On the other hand, based on his demeanor, the
judge credited Adamson Jr.'s testimony that, apart from a ten
minute test period, the crusher had not operated in production
without guard railings and a catwalk.[15]  Id.  The Commission
does not lightly overturn a judge's credibility determinations,
which are entitled to great weight.  In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878
(Nov. 1995), aff'd sub nom. Sec'y of Labor v. Keystone Coal
Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).  We find no
compelling reason to overturn the judge's credibility findings
about Terry's out-of-court statements and Williams and Adamson
Jr.'s testimony regarding guard railings and a catwalk on the
crusher.  Accordingly, we determine that the judge did not err
when he gave little weight in his unwarrantable failure analysis
to Terry's out-of-court statements.

     We also reject the Secretary's assertion that the judge
erred by failing to draw an adverse inference against the
operator for not calling Terry to testify.  It is within the
discretion of the trier of fact whether to draw an adverse
inference against a party for failing to call as a material
witness a person who may reasonably be assumed to be favorably
disposed toward that party or a person who is peculiarly
available to that party.  Overnite Transp., 140 F.3d at 267 n.1;
Underwriters Labs., 147 F.3d at 1054.  Although Terry was
Virginia Slate's foreman, there is nothing in the record to
indicate that the judge abused his discretion when he did not
draw an adverse inference against the operator for not calling
Terry as a witness.  The judge also did not err by drawing an
adverse inference against the Secretary for failing to call Terry
to testify.  Although the judge stated in his unwarrantable
analysis that "the Secretary did not indicate why it had not
called Terry to testify," the judge never stated in his analysis
of the violation that he had drawn an adverse inference against
the Secretary for not calling Terry to testify.  22 FMSHRC at
384.

     Contrary to our dissenting colleagues (slip op. at 16-17),
we do not think Virginia Slate's actions regarding the lack of
guard rails or catwalks on the crusher constituted aggravated
conduct.  It is undisputed that the crusher had been run by a
Murphy engine which broke down on May 10, 1998, and was replaced
by a Caterpillar engine.  Tr. II at 10-11.  Williams testified
that the original catwalk had been removed in order to remove the
Murphy engine and had remained off while the Caterpillar engine
was installed.  Tr. I at 197.  Adamson Jr. testified that it was
unclear whether the Caterpillar engine would be able to run the
crusher because it was a smaller engine than the Murphy.  Tr. II
at 11.  In the late afternoon of June 1, Virginia Slate tested
the Caterpillar engine for ten minutes.  22 FMSHRC at 384; Tr. II
at 12.  Adamson Jr. testified that, prior to testing, all
unnecessary personnel were cleared of the crusher area.  Tr. II
at 16-17.  He testified that the catwalk had not been replaced at
that time because it was uncertain whether the controls for the
Caterpillar would need to be moved to the other side of the
crusher.  Tr. II at 12, 15-16.  Immediately after testing,
Virginia Slate ordered that a catwalk be installed the next
morning and that the crusher not be run without a catwalk.  22
FMSHRC at 384; Tr. II at 14.  We do not think its actions
constituted aggravated conduct because the operator needed to
test the new equipment, the test period was short, the operator
reduced risk during testing by removing unnecessary personnel, it
intended to install the catwalk the next morning, and, after
testing, it prohibited operation of the crusher until the catwalk
was installed.

     Based on the foregoing, we would affirm the judge's negative
unwarrantable failure determination as to Citation No. 7711665.

     3.  Order No. 7711667[16]

     In Order No. 7711667, the judge concluded that Virginia
Slate violated section 56.9301[17] because there were no bumper
blocks or any other impeding devices to prevent the front-end
loader, when loading the crusher with rock, from running into the
crusher, hitting a rock, or overturning.  22 FMSHRC at 385.  He
determined the violation was not S&S and, because the Secretary's
evidence failed to establish how long the violation had lasted,
did not result from the operator's unwarrantable failure.  Id. at
385-86.  The judge's unwarrantable failure analysis for Order No.
7711667 consisted of a reference to his unwarrantable failure
analysis for Citation No. 7711666, which dealt with a violation
of section 56.9300(a)[18] because of the lack of a berm along the
bank of a mine roadway.  Id. at 384-86; Gov't Ex. 5.

     The Secretary argues that the judge erred by concluding,
based on Adamson Jr.'s testimony, that only the excavator was
used to feed the crusher during the period in question and by
ignoring Williams' testimony that the front-end loader was
regularly used to feed the crusher.[19]  PDR at 20.  The
Secretary asserts that the judge also erred by ignoring Adamson
Jr.'s testimony that the front-end loader had been used to feed
the crusher on June 1 and Inspector Horn's testimony that Adamson
III had told him that the front-end loader had been used to feed
the crusher for a week before the inspection.  Id.  Virginia
Slate responds that the judge improperly admitted hearsay
testimony and ignored relevant evidence that the crusher was out
of service at the time of the inspection.  V. Br. at 2-3.

     We conclude that the judge erred in his unwarrantable
failure analysis by failing to consider all the relevant
aggravating factors, such as the obviousness of the violation,
the operator's knowledge of the violation, or any abatement
efforts by the operator.  Mullins, 16 FMSHRC at 195.  We also
think the judge erred by adopting his unwarrantable failure
analysis for Order No. 7711666 as his unwarrantable failure
analysis for Order No. 7711667.  22 FMSHRC at 384-86.  The facts
involved in Order No. 7711666, apart from duration, are too
dissimilar to the facts involved in Order No. 7711667 to allow
the same unwarrantable failure analysis to be applied to both
orders.

     Contrary to the Secretary's assertion, the judge did not
conclude that only the excavator had been used to feed the
crusher during the period in question.  Although the judge in his
unwarrantable analysis for Order No. 7711666 examined the
evidence relating to when the excavator versus the front-end
loader had been used to feed the crusher, he did not make a
finding on the issue.  Thus, the judge did not conclude in his
unwarrantable failure analysis for Order No. 7711667, which
references his unwarrantable failure analysis for Order No.
7711666, that only the excavator had been used to feed the
crusher.

     In sum, we vacate and remand the judge's negative
unwarrantable failure determination for Order No. 7711667 and
instruct him to analyze the unwarrantability issue separate from
Order No. 7711666, taking into consideration all relevant
aggravating as well as mitigating factors.

     4.  Order No. 7711681[20]

     The judge concluded that Virginia Slate violated section
56.14100[21] by failing to perform adequate preshift examinations
of mobile equipment.  22 FMSHRC at 390.  He determined that the
violation was S&S but did not result from the operator's
unwarrantable failure because the record did not contain
sufficient facts to establish that the operator's actions
constituted aggravated conduct.  Id.

     The Secretary argues that the judge erred by not considering
the nature of violative conditions which went undetected and
uncorrected as a result of the operator's failure to carry out an
adequate preshift examination of mobile equipment.  PDR at 21-24.
She also asserts that the judge erred by refusing to admit into
evidence citations which allegedly showed a number of violations
which went undetected or uncorrected because of Virginia Slate's
inadequate preshift inspections of mobile equipment.  Id. at 24.
Virginia Slate responds that some of the alleged violations which
may have gone undetected or uncorrected as a result of the
operator's alleged failure to carry out an adequate preshift
examination were not violations.  V. Br. at 4-6.


     We conclude that the judge failed to examine aggravating
factors that may have been relevant to his unwarrantability
analysis, such as the extent and duration of the operator's
failure to carry out adequate preshift examinations or its
knowledge that it was not adequately carrying out such
examinations.  The judge also failed to consider the underlying
violations which went undetected or uncorrected because of the
operator's inadequate preshift examinations and conditions.  He
found that the presence of safety violations involving inoperable
horns and defective seatbelts on Virginia Slate's mobile
equipment indicated that adequate preshift examinations had not
been carried out.  22 FMSHRC at 390.  The judge should have
considered the obviousness posed by these underlying violations
as a relevant factor in his analysis of whether the operator's
failure to carry out the examinations was unwarrantable.[22]

     In sum, we vacate the judge's determination that Order No.
7711681 was not due to unwarrantable failure and remand for
reconsideration.[23]  On remand, the judge must address all the
relevant factors relating to the preshift examination violation,
including the underlying violations that were not detected or
corrected because of the inadequate examinations.

B.   Penalty Assessment Issues[24]

     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.[25]  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).  In reviewing a judge's penalty assessment, we
must determine whether the judge's findings with regard to the
penalty criteria are in accord with these principles and
supported by substantial evidence.

     The Commission has recently reiterated the need for its
judges to fully satisfy the statutory requirements of section
110(i) by providing findings of fact on each of the six penalty
criteria when assessing a penalty.  Cantera Green, 22 FMSHRC 616,
620-26 (May 2000); Douglas R. Rushford Trucking, 22 FMSHRC 598,
600-02 (May 2000); Hubb Corp., 22 FMSHRC 606, 611-13 (May 2000).
Such findings of fact are necessary to provide respondents with
notice as to the basis upon which the penalty is being assessed
and to provide the Commission and any reviewing court with the
information they need to accurately determine whether a penalty
is appropriate.  Rushford Trucking, 22 FMSHRC at 601.  An
explanation is particularly essential when a judge's penalty
assessments substantially diverge from the Secretary's proposed
penalties.  Sellersburg, 5 FMSHRC at 293.  As we noted in
Sellersburg, without an explanation for such a divergence, "the
credibility of the administrative scheme providing for the
increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness."  Id.

     For each of the orders and citations on review, the judge's
penalty assessments indicate that he failed to consider relevant
penalty criteria when assessing penalties.  In his penalty
assessment for Order No. 7711661, the judge did not make findings
regarding each of the penalty criteria for that order but merely
referenced his penalty assessment for Citation No. 7711660.  22
FMSHRC at 382.[26]  Because he merely referenced his penalty
assessment for Citation No. 7711660 when assessing the penalty
for Order No. 7711661, his penalty assessment for Order No.
7711661 includes the same failings discussed with respect to that
prior penalty assessment.  Further, although Citation No. 7711660
and Order No. 7711661 both involve missing guard violations, the
circumstances of the violations are different.  Thus, the judge
should have made findings of fact specific to Order No. 7711661
concerning the gravity of the violation, the operator's abatement
efforts,[27] and the operator's negligence.

     In his penalty assessment for Citation No. 7711663, apart from
an analysis of the gravity of the violation, the judge did not
make findings regarding any of the other penalty criteria
specific to that citation but instead referenced his penalty
assessment for Citation No. 7711660.  Id. at 383.  As a
consequence, his penalty assessment for Citation No. 7711663
contains the same problems as his penalty assessment for Citation
No. 7711660.  Additionally, the judge should have made findings
of fact specific to Citation No. 7711663 concerning the
operator's abatement efforts and the operator's negligence.

     In his penalty assessment for Citation No. 7711665, the judge
made penalty criteria findings specific to that citation for the
gravity of the violation and for whether the operator was
negligent.  Id. at 384.  For the remaining four penalty criteria,
the judge referenced his penalty assessment for Citation No.
7711660.  Id.  As a result, his penalty assessment for Citation
No. 7711665 contains the same problems as his penalty assessment
for Citation No. 7711660.  Additionally, the judge should have
made findings specific to Citation No. 7711665 about the
operator's abatement efforts.

     In his penalty assessment for Order No. 7711667, the judge
made no findings regarding the penalty criteria specific to that
order but referenced back to his penalty assessment for Order No.
7711666.  22 FMSHRC at 386.  In his penalty assessment for Order
No. 7711666, the judge made specific findings on the gravity of
the violation and on the operator's degree of negligence.  Id. at
385.  He also concluded that the violation was abated in a timely
fashion.[28]  Id.  For the remaining three penalty criteria in
Order No. 7711666, the judge referenced his penalty assessment
for Citation No. 7711660.  Id.  Thus, the judge's penalty
assessment for Order No. 7711667 is confusing and appears to
merely reference his two previous deficient penalty assessments
for Citation No. 7711660 and Order No. 7711666.

     The judge erred when he applied his findings on gravity,
negligence, and abatement from his penalty assessment for Order
No. 7711666 to his penalty assessment for Order No. 7711667
because the circumstances involved in the two orders are not
similar.  With reference to Virginia Slate's history of
violations, the judge also erred in his penalty assessment for
Order No. 7711667 by referencing his penalty assessment for
Citation No. 7711660 (by reference to his penalty assessment for
Order No. 7711666) in which he did not make adequate findings on
the operator's history of violations.

     In his penalty assessment for Order No. 7711681, the judge
concluded that the gravity of the violation was high and "the
level of negligence was no more than moderate."  22 FMSHRC at
390.  For the remaining four penalty criteria, however, he failed
to make any findings of fact but only stated that he had taken
them into account.  Id.

     On the basis of the foregoing, we conclude that the judge
failed to adequately explain the basis for the penalties he
assessed for the violations at issue herein.  We vacate the
judge's penalty assessments for all of the orders and citations
on review and remand for detailed findings of fact as to each of
the six section 110(i) criteria and reassessment of an
appropriate penalty for each of the violations at issue.

                              III.

                           Conclusion

     For the foregoing reasons, we vacate the judge's negative
unwarrantable failure determinations for Order Nos. 7711661,
7711667, and 7711681 and for Citation No. 7711663, and remand for
further consideration consistent with our decision.  The judge's
negative unwarrantable failure determination for Citation No.
7711665 stands as if affirmed.  Further, we vacate the judge's
penalty assessments for all of the orders and citations on review
and remand for reassessment of an appropriate penalty for each
violation consistent with this decision.


                            James C. Riley, Commissioner

                            Theodore F. Verheggen, Commissioner

                            Robert H. Beatty, Jr., Commissioner


**FOOTNOTES**

     [3]:  All Commissioners vote to vacate and remand the
judge's negative unwarrantable failure determinations for Order
No. 7711661 and Citation No. 7711663.

     [4]:  Section 56.14107(a) provides that "[m]oving machine
parts shall be guarded to protect persons from contacting gears,
sprockets, chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and similar moving
parts that can cause injury."

     [5]:  The judge analyzed and affirmed Citation No. 7711660
(22 FMSHRC at 378-82) even though the Secretary informed the
judge that she had vacated that citation.  S. Post-Hr'g Br. at 2.
The judge also erroneously referred to Citation No. 7711660 as
Order No. 7711660.  Gov't Ex. 1.

     [6]:  The Secretary designated her petition for
discretionary review as her opening brief.

     [7]:  Federal Rule of Evidence 801(d)(2)(D) provides in
pertinent part that "[a] statement is not hearsay if . . . [t]he
statement is offered against a party . . . by the party's agent
or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship."

     [8]:  We disagree with the Secretary that the judge erred
when he drew an adverse inference against her because she did not
call Adamson III to testify.  The judge never stated anywhere in
his decision that he drew such an inference against the
Secretary.

     [9]:  In his unwarrantable analysis for Citation No.
7711660, the judge noted that Inspector Horn testified that Roy
Terry, a foreman, and the two crusher operators had told the
inspector that the crusher had been operated in an unguarded
condition for the two weeks prior to Horn's inspection.  22
FMSHRC at 381.  However, the judge did not credit this testimony
in part because Williams, one of the crusher operators, did not
testify that the belt involved in Citation No. 7711660 had been
run without a guard even though he testified that the belt had no
guard "at the time leading up to the inspection."  Id.

     [10]:  Contrary to the Secretary's assertions, the judge did
not err by not considering Inspector Horn's testimony that
Adamson III told him that the guards involved in Order No.
7711661 and Citation No. 7711663 had at one time been in place
but that he did not "know how long the guard[s] had been off."
Tr. I at 57, 65.  It is not clear from Adamson III's out-of-court
statements how long he knew the guards were missing.  Indeed, he
may only have discovered the guards were missing after they were
cited.  Thus, his out-of-court statements are not probative of
whether the violations in Order No. 7711661 and Citation No.
7711663 were unwarrantable.  Accordingly, there is no need for
the Commission to determine whether Adamson III was a supervisor
or whether the judge erred in treating his out-of-court
statements as hearsay.

     [11]:  At the hearing, the judge sought clarification of
confusing and conflicting testimony, often obtained from the same
witness.  Unfortunately, the judge's attempt to clarify the
record appears to have been thwarted by attorneys seemingly
intent on impeaching their own witnesses or misapprehending the
nature of "hearsay" testimony and its role in administrative
proceedings.

     [12]:  Commissioners Riley and Verheggen vote to affirm the
judge's negative unwarrantable failure determination for Citation
No. 7711665.  Commissioner Beatty does not join this part of the
opinion and instead votes with Chairman Jordan to reverse the
judge's negative unwarrantability finding.  See slip op. at 16-
17.  Under Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65
(Aug. 1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir.
1992), the effect of the split decision is to allow the judge's
unwarrantability determination to stand as if affirmed.

     [13]:  Section 56.11001 provides that "[s]afe means of
access shall be provided and maintained to all working places."

     [14]:  We disagree with the Secretary that, because Terry's
out-of-court statements are admissions by a party-opponent under
Rule 801(d)(2)(D) of the Federal Rules of Evidence, the judge
erred in treating them as hearsay testimony.  The Commission is
not required to apply the Federal Rules of Evidence.  See Mid-
Continent, 6 FMSHRC at 1135-36 & n.6 (holding that "[w]hile the
Federal Rules of Evidence may have value by analogy, they are not
required to be applied to [Commission] hearings - either by their
own terms, by the Mine Act, or by [Commission] procedural rules."
(emphasis in original)).

     [15]:  Contrary to Virginia Slate's argument that the judge
ignored evidence that the crusher was out of service at the time
of the inspection, the judge found that the crusher was out of
service at the time of the inspection.  22 FMSHRC at 381-82.

     [16]:  All Commissioners vote to vacate and remand the
judge's negative unwarrantable failure determinations for Order
No. 7711667.

     [17]:  Section 56.9301 provides that "[b]erms, bumper
blocks, safety hooks, or similar impeding devices shall be
provided at dumping locations where there is a hazard of
overtravel or overturning."

     [18]:  Section 56.9300(a) provides that "[b]erms or
guardrails shall be provided and maintained on the banks of
roadways where a drop-off exists of sufficient grade or depth to
cause a vehicle to overturn or endanger persons in equipment."

     [19]:  Inspector Horn testified that section 56.9301 only
required the use of bumper blocks or other impeding devices when
the crusher was fed by the front-end loader, which was mobile
equipment, but not when it was fed by the excavator, which was
stationary equipment.  Tr. II at 143-45.

     [20]:  Commissioners Riley, Verheggen, and Beatty vote to
vacate and remand and Chairman Jordan votes to reverse the
judge's negative unwarrantable failure determination for Order
No. 7711681.

     [21]:  Section 56.14100 provides in pertinent part that
"[s]elf-propelled mobile equipment to be used during a shift
shall be inspected by the equipment operator before being placed
in operation on that shift."

     [22]:  Commissioner Beatty believes that the judge should
consider the danger posed by these underlying violations, as well
as their obviousness, in determining whether the operator's
failure to adequately conduct the preshift examinations was
unwarrantable.  See Consol, 22 FMSHRC at 350-55 (failure to
ensure that methane checks were made was unwarrantable because a
dangerous methane accumulation went undetected as a result); Rock
of Ages Corp., 20 FMSHRC 106, 115 (Feb. 1998), aff'd in relevant
part, 170 F.3d 148 (2d Cir. 1999) (failure to search for
undetonated explosives was unwarrantable because dangerous
undetonated explosives went undetected as a result).  He notes
that it is well established Commission law that the danger posed
to miners by a violation is an important factor in
unwarrantability analysis.  See Rock of Ages Corp., 20 FMSHRC at
115; Jim Walter Res., Inc., 19 FMSHRC 1761, 1770 (Nov. 1997);
Midwest Material, 19 FMSHRC at 34.

     [23]:  Contrary to our dissenting colleague's opinion (slip
op. at 18-19), we do not think the record evidence is so one-
sided as to allow only the conclusion that the operator's actions
were unwarrantable.  When a judge fails to adequately address the
evidentiary record, a remand is necessary for fuller evaluation.
Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222-23 (June 1994).
Here, the judge, as fact finder, is in the best position to
evaluate the relevant factors.

     [24]:  All Commissioners vote to vacate the judge's penalty
assessments for all the orders and citations on review and to
remand for reassessment of appropriate penalties.

     [25]:  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).

     [26]:  The judge's penalty assessment for Citation No. 7711660
mentioned the six section 110(i) penalty criteria but his
analysis was insufficient.  22 FMSHRC at 382.  He found that the
penalty would not adversely affect the operator's ability to
remain in operation and that the penalty should not be mitigated
by the size of Virginia Slate's operation.  Id.  He also found
that "[t]he violative condition was abated in a timely fashion."
Id.  The judge mentioned Virginia Slate's "history of violations"
but he did not make findings about that history or state whether
he considered it a mitigating or aggravating factor in assessing
the penalty.  Id.

     [27]:  While Citation No. 7711660 indicates that the violation
was terminated about 4 hours after it was cited (Gov't Ex. 1),
Order No. 7711661 states that the violation was terminated
approximately 27 hours after it was cited (Gov't Ex. 2 at 2).

     [28]:  Order No. 7711666 indicates that the violation was
terminated approximately 2 days after it was cited.  Gov't Ex. 5.
Chairman Jordan, concurring in part and dissenting in part:

     I agree with my colleagues' decision to vacate and remand the
judge's negative unwarrantable failure determinations for Order
No. 7711661 (lack of a protective guard on the V-belt drive and
pulleys for the feeder attached to the crusher), for Citation No.
7711663 (no protective guard on the tail pulley for the No. 2
belt on the crusher), and for Order No. 7711667 (lack of impeding
devices for front-end loader).  However, for the reasons set
forth below, I disagree with their decision to affirm the judge's
negative unwarrantable failure determination as to Citation No.
7711665.  As I explain below, I also disagree with their decision
to vacate and remand the judge's negative unwarrantable failure
determination for Order No. 7711681.

     1.   Citation No. 7711665[1]

     The judge found that Virginia Slate violated 30 C.F.R. 
56.11001 because of the lack of guard rails or catwalks to
provide safe access to the clutch and throttle levers used to
operate the crusher.  22 FMSHRC 378, 383 (Mar. 2000) (ALJ).
However, he determined that the violation was not the result of
the operator's unwarrantable failure.  Id. at 383-84.  The focus
of his reasoning, as well as that of my colleagues, centers
mostly on evidentiary questions regarding the role of foreman Roy
Terry, and on the testimony of Leroy Williams (which the judge
refused to credit) that this condition had existed for an
extended period of time.  These tangential issues needlessly
complicate this question, as the undisputed evidence shows that
the violation, which was plainly visible and took place in the
presence of mine supervisors, created a highly dangerous
situation, thus warranting a finding of unwarrantable failure.

     The judge concluded that the violation was significant and
substantial, and acknowledged that a serious injury could have
developed.  Id.  To access the levers of the crusher, a miner had
to walk on an I-beam, approximately 6 inches wide, and located
about 6 feet above the ground.  Id. at 383.  As the judge noted,
according to the uncontradicted testimony of Inspector Horn, a
miner walking on the beam while operating the motor could loose
his or her balance.  Id.  According to Horn, the miner could
quite easily fall into the rotating pulley or V-belt drive.  Tr.
I at 76.

     Inspector Horn testified that to start the engine, it was
necessary to hold on with one hand and push the clutch down and
in with the other, while standing on the metal frame.  Tr. I at
69.  He testified that a fall into the V-belt drive would
probably result in a permanently disabling injury and would be
reasonably likely to "cut his arm off or leg, whatever went into
it."  Tr. I at 76-77.  He was also quite clear that the risk of
injury would be the same whether the operator was producing or
just test firing the engine.  Tr. I at 78-79.

     The judge's finding that the new motor in the crusher was
tested for 10 minutes on June 1 without protective catwalks, 22
FMSHRC at 384, is uncontroverted.  Adamson, Jr. testified that he
and the foreman started the engine and fed six buckets of rock
into the feeder.  Tr. II at 13-14.  Commission precedent makes
clear that these individuals should be held to a high standard of
care.  See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011
(Dec. 1987) ("section foreman is held to a `demanding standard of
care in safety matters,'" quoting Wilmot Mining Co., 9 FMSHRC
684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923
(Nov. 1995) (heightened standard of care required of section
foreman and mine superintendent).

     Moreover, their actions were particularly egregious, involving
intentional conduct, as Adamson, Jr. admitted.  He testified
quite candidly that a decision was made to test the crusher for
10 minutes, despite the fact that the catwalks were not in place.
Tr. II at 12-17.   Permitting this test run in the absence of
guard rails or catwalks needlessly placed individuals in a
precarious, dangerous situation, constituting aggravated conduct.

     As we noted in Midwest Material Co., 19 FMSHRC 30, 34 (Jan.
1997), the Commission has relied upon the high degree of danger
caused by a violation to support an unwarrantable failure
determination.  See Beth Energy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992) (finding unwarrantable failure where
unsaddled beams posed a danger to miners entering the area);
Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding
unwarrantable failure when roof conditions were extremely
dangerous).  In Midwest Material, which involved a violation for
improperly dismantling a crane boom, we reversed the judge's
finding that the violation was not an unwarrantable failure,
basing our conclusion on the extreme danger, the obvious nature
of the hazard, and the fact that the violation took place in the
presence of a foreman, 19 FMSHRC at 35, all factors that are
present in this case as well.  Moreover, in Midwest Material, we
found that the judge had erred by relying on the relatively brief
duration of the violative conduct, in light of the high degree of
danger posed by the hazard and its obvious condition.  Id. at 36.

     Similarly, in Lafarge Construction Materials, 20 FMSHRC 1140
(Oct. 1998), which involved a violation for failure to remove
loose materials before allowing a miner to enter a surge bin, we
affirmed the judge's holding of unwarrantable failure, again
relying on the high degree of danger and heightened standard of
care required of a foreman.  Id. at 1147.  We noted that when
violations have exposed miners to very dangerous conditions, we
have not always relied on most of the remaining factors in the
Commission's traditional unwarrantable failure test.  Id.

     Accordingly, I would reverse the judge and find that this
citation was the result of the operator's unwarrantable failure.


**FOOTNOTES**

     [1]:  Commissioner Beatty votes with Chairman Jordan to
reverse the judge's negative unwarrantability finding.  See slip
op. at 6 n.12.

     2.   Order No. 7711681

     Inspector Horn testified that he found several obvious defects
on the mobile equipment, Tr. III at 36, 42-43, 52, including
defective horns, parking brakes and seat belts.  On the basis of
this testimony, the judge found that Virginia Slate violated 30
C.F.R.  56.14100 because it failed to perform adequate preshift
examinations of mobile equipment, and determined that the
violation was S&S.  22 FMSHRC at 390.  I believe he erred,
however, in concluding that it did not result from Virginia
Slate's unwarrantable failure.

     The operator had been on notice of the duty to perform
preshift examinations when the inspector had explained the
standard to management officials during a September 1997 special
investigation.  Tr. III at 33, 46-47.  Moreover, the record
showed that the failure to perform a proper preshift posed a
danger to miners, Tr. III at 50-51, and the judge's designation
of the violation as S&S reinforces the Secretary's claim that
danger was an aggravating factor.

     Nonetheless, Virginia Slate failed to note these conditions on
preshift and failed to remedy them.  The omission of any mention
of these numerous hazards on the preshift reports indicates an
indifferent attitude towards the preshift regulation, which is
designed to inform the oncoming shift foreman about safety
problems, so they can be corrected.  The importance of the
requirement is underscored by Adamson Jr.'s testimony on the
citation charging Virginia Slate with a missing seat belt (which
the judge eventually found was S&S and a result of the operator's
unwarrantable failure).  The judge credited Adamson's testimony
that he "neither knew nor reasonably should have known" that part
of the seatbelt was missing.  22 FMSHRC at 387.  In support of
that assertion, Adamson Jr. testified that he "reviewed the pre-
shift inspection reports for the time period. . . . [I]t's all
checked off on the safety features as being satisfactory, with no
exceptions, on that vehicle."  Tr. II at 238.  It is disingenuous
for an operator to claim ignorance of a safety hazard on the
basis of defective preshift reports which, if completed
correctly, would have alerted management to the problem.

     Even more troubling is the judge's finding that the violation
of the horn regulation was not the result of unwarrantable
failure because the fork lift operator had not communicated the
existence of defective horns to any of the operator's managers,
and that consequently there was no evidence that the operator had
engaged in aggravated conduct.  22 FMSHRC at 386.  Had the
preshift been properly conducted and the report accurately
completed, these hazards would have been noted.  Instead, because
the operator failed to abide by the preshift regulation,
management successfully pleaded ignorance to any knowledge of the
defective horns, and was rewarded by the judge's determination
that there was no unwarrantable failure.

     Finally, the judge erred in stating that evidence regarding
the operator's failure to correct violations is not relevant to
the degree of operator negligence, id. at 390, as section
56.14100(b) specifically requires that "[d]efects on any
equipment, machinery, and tools that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard
to persons."

     The omission of several safety defects on the preshift report,
and the lack of any effort to correct these hazards, reflects a
reckless disregard for the requirements of the preshift standard.
Because the only conclusion one can draw from the record evidence
is that this violation was the result of the operator's
unwarrantable failure, I would reverse the judge.  Am. Mine
Servs. Inc., 15 FMSHRC 1830, 1834 (Sept. 1993).


                            Mary Lu Jordan, Chairman


Distribution

Cheryl Blair-Kijewski, Esq., Office of the Solicitor,U.S. Depart-
ment of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203

V. Cassel Adamson, Jr., Esq., Adamson and Adamson, 100 East Main 
Street, Richmond, VA 23219

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