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[DOCID: f:wv94381.wais]

 
CANNELTON INDUSTRIES, INC.
August 27, 1998
WEVA 94-381


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         August 27, 1998

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No.  WEVA 94-381
               Petitioner       :  A.C. No.  46-06051-03689
          v.                    :
                                :  Stockton Mine
CANNELTON INDUSTRIES, INC.,     :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No.  WEVA 95-100
               Petitioner       :  A.C. No.  46-06051-03698-A
          v.                    :
                                :  Stockton Mine
CHARLES PATTERSON, Employed by  :
CANNELTON INDUSTRIES, INC.,     :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No.  WEVA 95-101
               Petitioner       :  A.C. No.  46-06051-03697-A
          v.                    :
                                :  Stockton Mine
GEORGE RICHARDSON, Employed by  :
CANNELTON INDUSTRIES, INC.,     :
               Respondent       :

                       DECISION ON REMAND

Before:  Judge Hodgdon

     On July 27, 1998, the Commission vacated my determinations
that Cannelton's violation of section 75.400, 30 C.F.R.  75.400,
was the result of an unwarrantable failure to comply with the
regulation and that Patterson and Richardson, Cannelton foremen,
were liable under section 110(c) of the Act, 30 U.S.C.  820(c),
for the violation, and remanded the case for further
consideration consistent with its opinion.  Cannelton Industries,
Inc. et al, 20 FMSHRC 726 (July 1998).  For the reasons set
forth below, I conclude that the violation did result from the
operator's unwarrantable failure and that Patterson and
Richardson are liable under section 110(c).

Factual Setting

     The situation, which is set out more fully in my original
decision, Cannelton Industries, Inc. et al, 18 FMSHRC 651 (April
1996), and the Commission's decision, can briefly be summarized.
MSHA Inspector Michael Hess discovered an accumulation of dry,
loose coal and coal dust that was approximately 10 feet square
and 4 feet deep under the V-scraper on the No. 3 belt.  The
Secretary's witnesses, two fire bosses who examined the belt
every day for the 2-weeks preceding the violation and a laborer
who observed the belt a few days prior to the violation,
testified that the accumulation began on February 14, 1994, and
grew steadily until it had reached the height of the belt where
it was discovered by the inspector on March 1.  One of the
examiners, who accompanied the inspector during the inspection,
specifically testified that the accumulation found by the
inspector was the one he had observed growing steadily.

     On the other hand, Patterson, Richardson and a third
foreman,
Elkins, postulated that "the accumulation discovered by Hess was
the result of a shuttle car hitting the spill board at the belt
feeder which in turn knocked the belt out of alignment and caused
most of the coal to fall directly onto the bottom belt" on which
it traveled until it reached the V-scraper where it was knocked
off onto the floor.  Id. at 655.  They stated that if an accident
such as they described occurred, an accumulation like the one
found by the inspector could occur in "two to three minutes."
(Tr. 255, 331, 385.)

Discussion

     Obviously, the two versions of events are mutually
inconsistent.  They cannot be reconciled.  In my original
decision, I stated that I believed the three witnesses presented
by the Secretary because nothing was offered at the hearing to
show "that any of them had any reasons not to tell the truth.
Nor was there any indication at the hearing that they were not
credible."  Cannelton at 655.  In addition, I would add that
their testimony is mutually corroborative and is further
supported by their entries in preshift-onshift reports.  It
follows that I did not believe the three foremen.  On
reconsideration, I adhere to that determination.

The Third Foreman

     In its remand, the Commission directed that I "consider
Elkins' testimony and make a credibility determination with
respect to Elkins."  20 FMSHRC at 732.  They specifically
directed that I address his "testimony that, 3 hours prior to
the inspection, the accumulation was smaller than when the
inspector cited it."  Id.  For the reasons that follow, I do not
find Elkins' testimony credible.

     Elkins testified that at about 7:00 a.m. on the morning that
the inspector made his inspection he observed an accumulation
under the belt which he deemed to be "normal."  He described it
as follows:  "Now these are all approximates, okay?  An
accumulation of possibly four foot by four foot - although it was
not a square.  It would not fall that way - and I would say a
depth of, just using judgment, 18 to 24 inches deep."  (Tr. 322.)
He said that he made this observation at a distance of "[m]aybe
two, two-and-a-half breaks which would be probably less than 200
feet . . . with my cap light."  (Tr. 324.)

     There are three possible explanations for this testimony.
First, the testimony could be absolutely correct.  Second, what
he saw was the accumulation described by the Secretary's
witnesses, but he misjudged its size as a result of the distance
from which he observed it and the fact that the only available
light was his cap light.  Or third, the testimony is a complete
fabrication.

     If the testimony is true, it means that, despite Elkins'
characterization of it as "normal,"   a sizable accumulation was
already under the V-scraper, which he did nothing to alleviate.
The testimony also undercuts the foremen's theory that the
accumulation occurred during a 2 to 3 minute time period shortly
before the inspector discovered it.

     On the other hand, the testimony could well be a complete
falsehood.  Curiously, this was the only thing that Elkins
specifically remembered in his entire testimony.  He could not
remember when the No. 3 belt line, with its movable feeder, was
set up; he could not remember when the feeder had previously been
jarred by a shuttle car dumping coal onto the belt resulting in a
large spill; he could not recall which miners he had shovel the
belt line, when he had them shovel it, or on how many occasions
he assigned miners to shovel it.

     However, giving Elkins the benefit of the doubt, I find that
the most reasonable explanation for this testimony is that he saw
the accumulation discovered by the inspector, and misjudged its
size.  He certainly did not bother to make a close investigation
of the accumulation.  Viewing it from 200 feet by cap light is
not conducive to accurate observations and estimates.

Corroboration

     Besides the testimony of the three foremen, no evidence
supports their hypothesis that the accumulation resulted from a
shuttle car dumping coal on the belt, hitting the spill board at
the feeder, knocking the belt out of alignment, and causing most
of the coal to fall directly onto the bottom belt until it was
knocked off of the belt by the V-scraper in a 2 to 3 minute time
period shortly before the inspector discovered it.  The section
boss, Steve Dean, the man Richardson allegedly called and told to
shut down the belt and reset the feeder after the accumulation
was discovered presumably could have presented such evidence.
Unfortunately, he was not called as a witness.

     In my original decision, I did not intend to imply that the
accumulation was not caused by spillage from the feeder or the
belt onto the bottom belt.  Some spillage is normal and is the
reason the bottom belt has a V-scraper.  What I found was that
the accumulation did not occur over a short period of time as
suggested by the foremen.  While Inspector Hess testified that
there was some spillage coming down on the bottom belt and
hitting the V-scraper when he discovered the accumulation, he
indicated that it was not a significant amount, a "five-gallon
bucket" out of the 15 tons of coal which would be dumped by a
shuttle car.  (Tr. 47.)

     In this connection, Inspector Hess also testified that "I
walked by that area which is inby where the V-scraper is.  There
was no noticeable accumulation or spillage in this area where the
third right feeder is and the backboard or the spill board where
the third right feeder dumps on the 3 right belt."  (Tr. 87.)  He
also stated that if most of the coal were being deposited on the
bottom belt:  "There would be coal scattered out from the feeder
back to the scraper board.  To get approximately 10 tons of coal
piled up in one area, there would be several tons of coal
scattered out from area A, let's call it the feeder, back to
where area B would be at the [scraper] board."  (Tr. 88.)  He
declared that he did not see any such accumulations in the area
between the feeder and the V-scraper.

     In conclusion, none of the three foremen actually saw a
shuttle car knock the feeder and belt out of alignment, saw coal
being dumped directly onto the bottom belt or saw the
accumulation until the inspector directed Richardson's attention
to it.  No one else testified that such an incident occurred and
there is no other evidence to suggest that the accumulation
occurred as insinuated by the foremen.  On the other hand, the
evidence of the two fire bosses, the laborer and Inspector Hess
directly contradicts such an occurrence.  Accordingly, I find
that the accumulation was caused by normal spillage being
scrapped off the bottom belt by the V-scraper over a 2-week
period of time.

Unwarrantable Failure

     The Commission vacated my finding "that Cannelton did not
make efforts to eliminate the violative condition, and remand[ed]
the matter for further consideration of the evidence adduced
during the hearing on this issue."  20 FMSHRC at 734.  After
further considering the evidence, I conclude that Cannelton in
general, and the three foremen specifically, made no efforts to
clean up the accumulation in this case.

     Consistent with their theory in this case, the foremen
denied
that an accumulation, beginning on February 14 and steadily
growing until March 1, ever existed.  Thus, Richardson declared:
"I never seen a condition at that scraper and I was by there.  If
there was a mound of coal there, it presented no problem." (Tr.
307.)  Patterson testified:  "Q.  Okay.  Now, during the two
weeks in question, did you ever observe a buildup in the rollers
of the No. 3 belt?  A.  No, sir." (Tr. 388.)  And Elkins
answered:  "Q.  Do you think there was a problem with
accumulations at the No. 3 belt V-scraper during the period from
February 14th to March the 1st?  A.  No more so than normal."
(Tr. 337.)  Consequently, their testimony about cleaning up
accumulations did not go to the specific accumulation in
question, but to cleaning up accumulations in general.

     Furthermore, it is apparent that their general practice was
not very rigorous.  Richardson testified:  "Q.  Do you recall
during that two-week period going to check the V-scraper and the
No. 3 belt to see if it had been cleaned up?  A.  As far as going
to specifically check that, no."  (Tr. 284-85.)  He stated
further:

          Q.  And you're sure that men worked on the No. 3 belt
          near the V-scraper during the two week period before
          the citation?

          A.  Yes, ma'am.  I'm sure if it's in that book.  I
          give them a piece of paper to clean that area because
          they would clean from the feeder to the V-scraper,
          because when you got the V-scraper full you've got --
          you had trails of coal down each
          side of the belt where part of the coal fell off.

          Q.  Can you tell me when these men were working on it?

          A.  No, ma'am.

          Q.  Can you tell me how often during that two-week
          period they worked on it?

          A.  No, ma'am.

(Tr. 298-99.) (emphasis added.)  Since there was nothing in the
preshift book indicating that the V-scraper had been cleaned
during the two week period in question, Richardson was not sure
that the area had been cleaned.  In fact, Richardson's testimony
indicated that he never checked to make sure that it had been
cleaned.

     In the same vein, Elkins testified:

          A.  At various times I had people go down there and
          shovel some.

          Q.  Is this in the two-week period preceding the
          citation being issued?

          A.  I cannot give you an exact time frame.  I would
          say yes, it is.  But, then again, I am not certain of
          that.

          Q.  Do you recall who you sent down to shovel?

          A.  No, ma'am.  I do not.
          Q.  Do you recall when you sent them to shovel?

          A.  No.

          Q.  Do you recall on how many occasions you sent them
          to shovel?

          A.  It would depend, I guess, on the depth of the what
          they call "hay stacks," which is the way the material
          forms when it drops off the belt.

          Once it got to a height that concerned me, then
          I would have someone go down and -- they might not --
          they wouldn't clean maybe the whole thing up.

(Tr. 338) (emphasis added.)

     Patterson testified similarly:  "Well, like I said
previously, the men were assigned that area every day somewhere
on the list.  So I felt that it would be cleaned up."  (Tr. 390.)
The foremen assumed that any accumulations were being cleaned up;
not one of them ever bothered to check or even to ask one of the
fire bosses or the men assigned to clean up whether anything had
been done.

     If any efforts were made to clean up the accumulation, it
was
in spite of, not because of, anything the foremen did.
Furthermore, it defies credulity to think that work could be done
on the accumulation and yet nobody, not the foremen, not the fire
bosses, not anyone who testified ever saw it being done, or saw
the results of the work.  If anything had been done, surely the
fire bosses would have noticed that the accumulation had stopped
steadily growing.

     I find that the accumulation was extensive, that the
operator, through its foremen, was put on notice that greater
efforts were necessary to take care of accumulations in the area
of the V-scraper, that the violation existed for 2 weeks and that
little or no efforts were made to eliminate the accumulation.
Accordingly, I conclude that the violation resulted from
Cannelton's unwarrantable failure to comply with the regulation.

Section 110(c) Liability

     The Commission vacated my determination that Patterson and
Richardson were liable under section 110(c) and remanded "for
findings of fact related to the foremen's cleanup efforts."  20
FMSHRC at 737.  Since the Commission has already concluded that
"the record supports the judge's finding that Patterson and
Richardson, agents of Cannelton, possessed actual knowledge of
the accumulation problem by way of the preshift-onshift reports,"
Id. at 736 (footnote omitted), and I have already found that the
foremen made little or no effort to cleanup the accumulation, I
conclude that they are liable under section 110(c).
Conclusion

     Resolution of this case depends on who is believed.  The
Secretary's case is that an accumulation began developing on
February 14, 1994, when it was first reported, and gradually
increased in size until it was 10 feet square, 4 feet high and
was touching the belt and rollers when discovered by Inspector
Hess on March 1.  Cannelton's case, based on the testimony of its
three foremen, is that nothing other than "normal" accumulations
existed until March 1 when the jarring of the feeder and the belt
by shuttle cars dumping coal must have resulted in the
accumulation developing over a very short period of time shortly
before it was discovered.  The two versions cannot be reconciled.
It is not possible to find that all of the witnesses are
credible.

     I believe the Secretary's witnesses for the reasons I have
previously given.  It follows that I do not believe the foremen.
Their version is not what someone actually saw happen, but what
they believe happened.  No other evidence corroborates this
theory.  In fact, the direct evidence of Inspector Hess
contradicts it.  There are inconsistencies in their testimony.
For instance, Patterson believed that a spill similar to the one
in this case had occurred right around February 14.  The other
two said that such a spill had happened some time prior to the
2-week period in this case.  All three had reasons to testify as
they did, since to admit that the accumulation occurred the way I
have found that it occurred would be to admit that they were not
doing their jobs.  In addition, Richardson and Patterson had the
further reason that they faced 110(c) liability.

     Accordingly, I conclude that the accumulation resulted from
the operator's unwarrantable failure to comply with section
75.400.  I further conclude that Richardson and Patterson are
liable under section 110(c) of the Act for this violation since
they knowingly allowed the accumulation to exist and grow for 2
weeks without taking any significant action to clean it up.

Civil Penalty Assessment

      Since I have found that this violation resulted from the
company's unwarrantable failure, I adopt my evaluation of the
penalty criteria set out in my original decision and assess a
penalty of $3,600.00.  18 FMSHRC at 661-62.

     In its decision, the Commission directed that in the event I
find the foremen liable under section 110(c), I should "reassess
the civil penalty or penalties based on the section 110(i)
criteria as they apply to individuals.  Ambrosia Coal and Constr.
Co., 19 FMSHRC 819, 823 (May 1997); Sunny Ridge Mining Co., 19
FMSHRC 254, 272 (Feb. 1997)."  20 FMSHRC at 737.  Sunny Ridge
counsels that in making findings concerning the penalty criteria
as they apply to individuals, the judge should

          consider such facts as an individual's income and
          family support obligations, the appropriateness of a
          penalty in light of the individual's job
          responsibilities, and an individual's ability to pay.
          Similarly, judges should make findings on an
          individual's history of violations and
          negligence, based on evidence in the record on these
          criteria.  Findings on the gravity of a violation and
          whether it was abated in good faith can be made on the
          same record evidence that is used in assessing an
          operator's penalty for the violation underlying the
          section 110(c) liability.

Id. at 272.

     In this case, neither Richardson nor Patterson presented any
evidence concerning his income, family support obligations or
ability to pay.  Similarly, the Secretary did not present any
evidence on the foremen's history of violations and negligence.
In Sunny Ridge, because there was no evidence in the record on
these criteria, the Commission remanded the case to the judge "to
institute further proceedings as necessary to obtain evidence
that will enable him to make findings pertinent to . . .
individual liability."  Id.  Since Sunny Ridge was issued after
the original decision in this case, I conclude that the parties
should be given an opportunity to present evidence on these
criteria.

     Accordingly, this decision will not be final with regard to
any civil penalty to be assessed against Richardson and
Patterson.  Instead, Richardson and Patterson have until
September 11, 1998, to submit evidence on their income and family
support obligations, the appropriateness of a penalty in light of
their job responsibilities and their ability to pay.  Likewise,
the Secretary will have until September 11, 1998, to submit
evidence on each individual's history of violations and
negligence.  Any evidence submitted must be sent to the opposing
party.  Comments or objections to a party's submission must be
filed by September 18, 1998.  After reviewing the submissions, I
will issue a final decision on civil penalties for Richardson and
Patterson.

ORDER

     Citation No. 4195028 issued to Cannelton Industries, Inc.,
and the civil penalty petitions alleging that George Richardson
and Charles Patterson knowingly authorized the violation in the
citation are AFFIRMED.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O.
Box 553, Charleston, WV 25322 (Certified Mail)

Cheryl C. Blair-Kijewski, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 400, Arlington,
VA 22203 (Certified Mail)


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