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

 
CONSOLIDATION COAL COMPANY
April 1, 1998
WEVA 93-146-A


              FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1730  K  STREET  NW,  6TH  FLOOR

                          WASHINGTON,  D.C.   20006

                               April 1, 1998



SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :  Docket Nos. WEVA 93-146-A
                                :              WEVA 93-81-R
                                :
CONSOLIDATION COAL COMPANY      :


BEFORE:  Marks, Riley, and Verheggen, Commissioners[1]


                             DECISION

BY THE COMMISSION:

     This is a consolidated contest and civil penalty proceeding,
arising under the Federal Mine Safety and Health Act of 1977
("Mine Act" or "Act"), 30 U.S.C.  801 et seq. (1994).  The Department
of Labor's Mine Safety and Health Administration ("MSHA") issued a
citation against Consolidation Coal Company ("Consol") charging it with
violating section 103(j) of the Mine Act, 30 U.S.C.  813(j),[2]
and proposed a penalty of $50,000. Administrative Law Judge Gary
Melick dismissed the citation.  18 FMSHRC 363 (March 1996) (ALJ).  For
the reasons that follow, we affirm the judge's decision.

                                I.

                Factual and Procedural Background

     On March 19, 1992, an explosion occurred at Consol's
Blacksville No. 1 Mine in Monongalia County, West Virginia.
18 FMSHRC at 365; Tr. 156.  Four miners, including Consol
environmental engineer Ronald Baird, were killed in the
explosion.  18 FMSHRC at 365; Gov't Ex. 1.  On March 20,
representatives of MSHA, led by chief investigator Jim Rutherford,
arrived at the mine site to begin an investigation into the
explosion.  18 FMSHRC at 368; Tr. 156, 157-58.  Rutherford was a
senior MSHA employee in charge of a ten-person investigating team and
responsible for producing MSHA's accident report and determining
whether violations were committed. Tr. 155-56.  On March 20,
Rutherford discussed with MSHA investigator Joseph Vallina the
need to inventory vehicles on the surface and placed him in charge of
that project.  18 FMSHRC at 368; Tr. 84-85, 198-99.  Under Vallina's
supervision, teams consisting of state and federal investigators and
mine personnel were assigned the responsibility of inventorying
vehicles.  Tr. 87.

     On the morning of March 21, Consol's vice-president for
safety, Ronald Wooten, and company counsel, Walter Scheller, arrived
at the mine to participate in the investigation.  18 FMSHRC at 365.
Local mine officials notified Scheller that Baird's widow had
requested that his personal effects be retrieved from his company
vehicle.  Id.; Tr. 225.  At MSHA's request, Scheller was also trying
to locate training records pertaining to subcontractors at the
mine that were thought to be in Baird's vehicle.  18 FMSHRC at 365;
Tr. 7-8, 226.

     Scheller, accompanied by Wooten and John Morrison, safety
supervisor at the mine, approached chief investigator Rutherford and
requested permission to enter Baird's vehicle to look for his
personal effects and the training records.  18 FMSHRC at 365, 366.
Rutherford gave them permission to search the vehicle.  Id. at 365-66.
Also, in uncontested testimony, Wooten stated that at the time
permission was granted, he told Rutherford, "[W]e would like to
bring these materials back to this office . . . and put them on [the]
desk for anyone, anyone involved in the investigation, to see."  Tr.
264.

     At around 10:00 a.m., Scheller and Morrison went to Baird's
vehicle.  Id. at 366.  Because of the ongoing investigation into the
mine explosion, there were many people in the area affiliated with
either Consol, MSHA, the union, or the state mine authority.  Id.
Baird's vehicle, which was parked near the mine entrance, had its
windows blown out when the explosion occurred and was covered
by a tarp.  Id.  Scheller and Morrison removed the tarp, and
Scheller entered the vehicle.  Id. Scheller found a metal clipboard
with papers relating to a wrestling team that Baird had coached.  Id.
at 366-67.  Morrison placed the clipboard along with other personal
items, including a Bible and keys in a small cloth duffle bag that he
had brought with him.  Tr. 230. In the vehicle's middle console,
Scheller located Baird's wallet along with a hand-held methane
detector and charger.  Tr. 230-31. Scheller removed the wallet from
the console and handed it to Morrison who put it in the cloth
bag.  Tr. 231.  He then told Morrison to remember where the
methane detector had been found. 18 FMSHRC at 366-67; Tr. 11, 231.

     Shortly thereafter, Vallina, who along with MSHA Inspector
Teaster was standing about 25 feet away from Baird's vehicle and
watching Scheller and Morrison, came up to them and asked them what
they were doing.  18 FMSHRC at 366-67.  Scheller responded that
Rutherford had authorized them to look for Baird's personal effects
and training records.  Id. Scheller also told Vallina that he
found a methane detector.  Id. Vallina told Scheller to return the
detector to where he had found it. Id.  Scheller did so and then
reattached the tarp over the vehicle.  Id. at 366.  Vallina did
not search the cloth bag, nor did he ask what was in it.  Id.; Tr.
138.  Teaster accompanied Scheller and Morrison back to the mine
office.  18 FMSHRC at 366.  At the office, Rutherford confirmed that
he had given Scheller permission to go into Baird's vehicle.  Id.
Scheller emptied the contents of the duffle bag on a table in the
presence of Rutherford.  Id. at 366-67.  Scheller asked Rutherford
whether there was a problem, and Rutherford answered, "No."  Id. at
366.

     On November 9, 1992, MSHA issued a citation against
Consol,[3] which stated:

          The mine operator altered evidence which
     would assist in the accident investigation of
     the fatal methane explosion . . . .  A Consol
     vehicle assigned to Rod Baird . . . was
     located in the blast area . . . and was
     damaged by the explosion.  This vehicle
     contained items related to the work area that
     would assist the investigation.
     Specifically, a methane detector and a Consol
     . . .  metal clipboard, which Baird
     reportedly used to attach routine work notes
     and records, were in the subject vehicle.

          On March 21, 1992, Consol employees Walter
     Scheller and John Morrison entered Baird's
     vehicle and took Baird's assigned methane
     detector and clipboard without permission
     along with a cloth bag of other items.
     Scheller and Morrison had obtained MSHA's
     permission to retrieve only training records
     and Baird's personal effects from the
     vehicle.  Upon being observed and stopped by
     MSHA accident investigation team member
     Joseph Vallina, Scheller returned the methane
     detector to the vehicle. . . . .

Id. at 364; Gov't Ex. 1.

     Consol contested the citation and the matter went to
hearing.  At the hearing, the Secretary's counsel clarified that
the citation only charged a violation with regard to the methane
detector but not as to the clipboard or cloth bag.  18 FMSHRC at
364.  The judge initially held that, based on the language of the
citation, it must be dismissed as a matter of law because it
failed to charge a violation of section 103(j) of the Act.  Id.
In addition, the judge found that, even if the citation alleged a
violation of section 103(j), the credible evidence established
that Scheller had been given permission to search the Baird
vehicle and remove specific articles and that he had been told
that MSHA was through with the vehicle.  Id. at 367.  The judge
credited Scheller's explanation that he intended to turn over the
methane monitor to Rutherford as possible material evidence.  Id.
He concluded that the Secretary failed to carry her burden in
proving that Consol failed to take appropriate measures to
prevent the destruction of evidence.  Id. at 365, 367-68.

                               II.

                           Disposition

     The Secretary argues that the judge erred in determining
that altering evidence by removing it from an accident scene was
not a violation of section 103(j) of the Act.  PDR at 1; S. Br.
at 7-8.  The Secretary also contends that substantial evidence
does not support the judge's determination that, even if removal
of evidence from an accident scene were a violation, the
Secretary did not establish a violation of section 103(j).  PDR
at 2; S. Br. at 15.  The Secretary asserts that, because the
judge did not base credibility determinations on his observation
of witnesses, those determinations are not entitled to deference.
S. Br. at 15-16.  Finally, the Secretary argues that the judge
failed to reconcile inconsistencies in the testimony of witnesses
whom he credited.  Id. at 16-24.

     Consol argues that the Secretary's interpretation of section
103(j) is not entitled to deference because its language is clear
and does not include "alteration" of evidence that was the basis
of the citation.  Consol Br. at 2-9.  Scheller's actions in
removing the methane monitor to take it to MSHA officials, Consol
argues, were designed to ensure that the evidence was not
overlooked or destroyed.  Id. at 11-15.  With regard to the
factual findings, Consol contends that substantial evidence
supports the judge and that he correctly resolved conflicts among
witness testimony based on proper considerations.  Id. at 15-19.


     Section 103(j) of the Act requires operators to "take
appropriate measures to prevent the destruction of any evidence
which would assist in investigating the cause [of an accident]."
The purpose of the provision is to preserve evidence that could
disclose the reason for a mine accident.  S. Rep. No. 181, 95th
Cong., 1st Sess. 29, reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 617
(1977).

     Witnesses for both the Secretary and Consol similarly
testified that Consol counsel Scheller asked MSHA's chief
investigator Rutherford for permission to enter Baird's vehicle
and retrieve his personal effects and training records.  Tr. 8-9,
161, 186, 227, and 260-61.  The judge credited Scheller's and
Consol vice-president Wooten's testimony that Rutherford also
stated that MSHA was through with the vehicle. 18 FMSHRC at 365.
Once inside the vehicle, Scheller located the methane dectector,
which he showed to inspector Vallina when he arrived.  Id. at
366-67.  The judge further credited Scheller's uncontroverted
testimony that he intended to hand over the methane detector to
Rutherford because it was material evidence.  18 FMSHRC at 367;
Tr. 238.

     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 (September 1992); Penn Allegh Coal
Co., 3 FMSHRC 2767, 2770 (December 1981).  The Commission has
recognized that, because the judge has an opportunity to hear the
testimony and view the witnesses, he is ordinarily in the best
position to make a credibility determination.  In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878
(November 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719
(11th Cir. 1984)), appeal docketed sub nom. Secretary of Labor v.
Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. Dec. 28,
1995).  Nonetheless, the Commission will not affirm such
determinations if there is no evidence or dubious evidence to
support them.  Consolidation Coal Co., 11 FMSHRC 966, 974 (June
1989) (citations omitted).

     The Secretary contends that the Commission should not accord
the judge's credibility resolutions the weight that such
determinations are generally given because they were not based on
witness demeanor and because the judge failed to consider other
significant record testimony.  S. Br. at 15-16.  We disagree.
Contrary to the Secretary's argument, there is nothing in the
judge's decision to suggest that he did not consider his
observation of witnesses in making his credibility
determinations.  See 18 FMSHRC at 365, 367 (general statements of
credibility).  We find the judge's reliance on witness demeanor
in his credibility determinations is implicit.  Cf. Universal
Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951).

     Moreover, in this proceeding the judge supported his
credibility determinations by drawing inferences from largely
undisputed facts.  Thus, in crediting Scheller's and Wooten's
testimony, the judge noted that it was reasonable to infer that,
if anyone was going to destroy evidence, it is not likely that he
would do so in broad daylight under the eyes of federal
investigators.  18 FMSHRC at 367.  Nor is it likely that one who
was interested in destroying evidence would wait two days after
the accident to search for evidence and seek the permission of
the chief investigator to do so.  Id.  Rather, it would be more
likely that such a person would seek out such evidence
surreptitiously at night without permission during the early
stages of an investigation.  Id.  Finally, as the judge noted,
the presence of a methane detector in Baird's vehicle during the
investigation of a methane explosion could be considered
exculpatory; therefore, Consol officials would be motivated to
preserve rather than destroy such evidence.  Id.  The inferences
drawn by the judge based on record facts are reasonable, and the
Secretary has offered no countervailing considerations that
persuades us to overturn them.[4]

     In crediting the testimony of Scheller and Wooten, the judge
also weighed the contrary testimony of MSHA chief investigator
Rutherford.  The judge noted that Rutherford was "busy" and,
therefore, his recollection of the conversation may not have been
as clear as otherwise could be expected.  Id. at 368.  Thus, on
the morning of March 21, Rutherford was engaged in trying to get
a team of investigators underground for the first time since the
mine explosion.  Tr. 161-62.  In addition, the judge found that
notes that Rutherford wrote after incident, Resp. Ex. 4, were
inconsistent with his trial testimony and omitted significant
parts of his conversation with Scheller and Wooten that he later
recalled.  18 FMSHRC at 368.  The judge further noted that
Rutherford was a senior skilled investigator who would not likely
have given Consol officials permission to search Baird's vehicle
unless he believed that its contents had been inventoried.  Id.
Lastly, the judge considered that Rutherford had instructed his
investigators to inventory all vehicles in the blast area on the
previous day, suggesting that he believed that the vehicle had
been inventoried.[5]  Id.  Contrary to the Secretary's argument,
S. Br. at 18-19, the judge's analysis of Rutherford's testimony
is logical and consistent with other record evidence and,
therefore, we decline to disturb his credibility resolutions.
See also Ona, 729 F.2d at 719 (reviewing court not bound by
judge's credibility resolutions where inherently unreasonable or
self-contradictory, or based on inadequate or no reason).

     The Secretary finally argues that the judge failed to
address inconsistencies in witness testimony with regard to
Rutherford's granting permission to enter Baird's vehicle.  S.
Br. at 22-24.  However, the differing versions of the
conversation given by Scheller, Wooten, and Morrison do not
provide a basis for overturning the judge.  Unlike Scheller and
Wooten, who testified that Rutherford said that MSHA was through
with the vehicle (Tr. 227, 261), Morrison's testimony was silent
on that point (Tr. 8-9).  Given that there was only a direct
conflict between the testimony of Rutherford, Scheller and
Wooten, the judge reasonably limited his discussion to the
inconsistencies in their testimony on this issue.  The judge
found it more significant that Morrison corroborated that
Rutherford had given permission to enter and search the vehicle.
18 FMSHRC at 368.  We agree.

     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 (November 1989) (quoting
Consolidated 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 (January 1997) (quoting
Universal Camera, 340 U.S. at 488.

       Based on the testimony credited by the judge, we conclude
that substantial evidence supports the judge's determination that
the actions of Consol officials did not contravene section
103(j).  As the judge concluded, "the actions of Consol officials
in removing the . . . methane detector from the Baird vehicle may
reasonably be construed, under all the circumstances, to have
been an effort to preserve evidence rather than destroy it."  18
FMSHRC at 365.

                                III.

                             Conclusion

     For the foregoing reasons, we affirm the judge's decision
dismissing the citation against Consol.[6]


                              Marc Lincoln Marks, Commissioner
                                                           
                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

Distribution

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

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

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


**FOOTNOTES**

     [1]:    Chairman  Jordan  and  Commissioner  Beatty  recused
themselves in  this matter and took no part in its consideration.
Pursuant to section  113(c) of the Federal Mine Safety and Health
Act  of  1977,  30  U.S.C.      823(c),   this  panel  of  three
Commissioners has been designated to exercise  the  powers of the
Commission.

     [2]:  Section 103(j) provides:

               In  the  event of any accident occurring
          in any coal or other mine, the operator shall
          notify the Secretary  thereof  and shall take
          appropriate    measures   to   prevent    the
          destruction  of  any   evidence  which  would
          assist in investigating  the  cause or causes
          thereof.   In   the  event  of  any  accident
          occurring  in a coal  or  other  mine,  where
          rescue and recovery  work  is  necessary, the
          Secretary or an authorized representative  of
          the  Secretary  shall take whatever action he
          deems appropriate  to protect the life of any
          person,  and  he  may,   if   he   deems   it
          appropriate,  supervise and direct the rescue
          and recovery activities in such mine.

30 U.S.C.  813(j).

     [3]:  MSHA issued several other citations and orders against
Consol  as  a result of the  investigation,  including  one  that
charged it with  failing  to conduct methane tests in a coal silo
near the mine entrance.  Consolidation  Coal  Co.,  18 FMSHRC 357
(March  1996)  (ALJ).  That citation was dismissed by the  judge.
Id. at 362.

     [4]:  The Commission has held that "the substantial evidence
standard may be  met by reasonable inferences drawn from indirect
evidence."  Mid-Continent  Resources,  Inc.,  6 FMSHRC 1132, 1138
(May   1984).   The  "possibility  of  drawing  either   of   two
inconsistent inferences from the evidence [does] not prevent [the
judge] from  drawing  one  of them."  NLRB v. Nevada Consolidated
Copper  Corp., 316 U.S. 105,  106  (1942).   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."    Mid-Continent,  6  FMSHRC  at  1138
(citations omitted).

     [5]:  Commissioners Riley and Verheggen note additionally as
follows:  We are perplexed by the Secretary's proposed penalty in
this  case,  which  our  colleague   properly   characterized  as
"outlandish" at oral argument (Oral Arg. Tr. at 35).   As  to the
gravity  of  the  alleged violation, Secretary's counsel admitted
that  the  methane monitor  on  which  this  case  is  based  had
absolutely no  bearing  on the accident investigation (id. at 32-
36), which was completed  when MSHA issued the citation some nine
months after the accident investigation.   Nor can we find in the
circumstances of this case any indication that  any of the Consol
officials involved acted negligently; to the contrary,  we  agree
with  the  judge's  observation  that  they  were  attempting  to
"preserve  evidence  rather  than  destroy it."  18 FMSHRC at 365
(emphasis added).  As to other penalty  factors,  we find nothing
in the record that would justify a $50,000 penalty.  We thus view
with no small amount of skepticism the Secretary's  arguments  in
this  case.   We  believe  that MSHA should not have sought to so
severely penalize Consol for  its  own failure to properly secure
and inventory the accident scene - after all, this case would not
be before the Commission had MSHA's  investigation  proceeded  as
Rutherford apparently assumed it had.

     [6]:   In  light  of  our  decision,  we  do  not  reach the
Secretary's  argument  that  section 103(j) of the Act proscribes
alteration of evidence or its removal from an accident scene.