L & J Energy Company, Inc.

Plain-English summary

Judge Avram Weisberger issued this decision after the Commission and the D.C. Circuit required a new determination based on the full record in L & J Energy’s civil penalty proceeding. The remand required an explanation for discounting eyewitness testimony and required the judge to address the statutory penalty criteria before assessing a fine. The judge credited MSHA and DER inspectors who observed loose materials, cracks, mudslips, and falling material on the highwall the day after L & J’s witnesses inspected it. He found that weather data and expert testimony made it more likely than not that at least some hazardous conditions existed the previous day. The judge reiterated his earlier findings on the citations, orders, and penalties.

Decision snapshot

• Governing provision: 30 U.S.C. § 820(i)
• Outcome: The judge reiterated the prior citation, order, and penalty findings after explaining the credibility determinations required on remand.
• Key point: The judge relied on firsthand inspector observations, photographic corroboration, and expert weather evidence in discounting contrary eyewitness testimony.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         March 13, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 93-15
Petitioner : A. C. No. 36-07270-03526
v. :
: Garmantown Mine
L & J ENERGY COMPANY, INC., :
Respondent :

                    DECISION ON REMAND

Before: Judge Weisberger

 On February 24, 1994, I issued a decision in this civil

penalty proceeding sustaining six of the seven violations
charged. L & J Energy Company, Inc., 16 FMSHRC 424 (February
1994). L & J Energy Company, Inc. ( L & J) filed a petition for
discretionary review and/or motion for remand for correction of
the record, arguing, inter alia, that a stipulation which was
recounted in my decision did not reflect the parties’ agreement.
The Secretary also moved for remand. The Commission denied the
motion, but granted the petition for review, and remanded the
matter to determine whether the stipulation in question correctly
represented the agreement of the parties, and to reconsider the
decision, if necessary. On remand, I took cognizance of the
parties’ agreement, but declined to reconsider the initial
decision. The Commission denied L & J's petition for review.

 Subsequently, L & J filed its appeal in the U.S. Court of

Appeals for the District of Columbia Circuit. On June 6, 1995,
the Court issued its decision remanding the case to the
Commission “for a new determination based on the full record.”
L & J Energy Co., Inc. v. Secretary of Labor, 57 F.3d 1086
(D.C. Cir. 1995). The Court determined that my legal conclusion
“disclaiming reliance on anything but expert testimony,” rendered
“irrelevant” my statement that I reviewed the testimony of other
witnesses. 57 F.3d, supra, at 1087, citing 16 FMSHRC at 441.
The Court further stated that if, on remand, the Commission
reaches the same conclusion, “it must simply explain why the
eyewitness [i.e., non-expert] testimony is discredited or

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disconnected in whole or in part.” Id., at 1087. Finally, the
Court held that the Commission should address each of the six
statutory criteria for determining civil penalties "before
assessing a fine." Id., at 1088, citing Sellersburg Stone Co.,
5 FMSHRC 287, 292-93 (March 1983); 30 U.S.C. § 820(i). On
August 8, 1995, the Court issued its Mandate and Judgment in
this matter, returning the case to the Commission’s jurisdiction.
On September 5, 1995, the Commission issued an order remanding
this matter to me, “... for a new determination based on the
entire record.” (L & J Energy Co., Inc., 17 FMSHRC 1515, 1517
(September 1955)).

 On November 30, 1995, my decision on remand was issued.

L & J filed a petition for review which was denied by the
Commission on January 11, 1996. The Secretary filed a motion for
reconsideration of the denial, and the motion was granted in part
on January 25, 1996.

 On February 13, 1996, the Commission issued a decision

remanding this matter to me. The Commission set forth its
conclusion as follows.

 We conclude that the judge has not adequately explained
 his reasons for discrediting or discounting the
 eyewitnesses’ testimony. The “experience” and
 “expertise” of the experts upon whose testimony the
 judge relies do not explain why he discredited the
 eyewitnesses’ testimony. Further, the judge’s reliance
 on the discussion of testimony in his earlier decision,
 which the court of appeals found to be insufficient,
 does not fulfill the remand instructions set forth by
 the court and this Commission that he explain the basis
 for his treatment of testimony. In addition, if the
 judge is of the view of that the inspector’s testimony
 regarding loose material on the highwall on February 6
 renders the eyewitness testimony not credible, he must
 explain why. The judge must also explain the
 significance, in terms of his evaluation of the
 eyewitness testimony, of his reference to lay and
 expert witness’ recognition of loose materials in
 photographs taken on February 6. 17 FMSHRC at 2134.
 Finally, the judge must reach a determination on the
 record in light of his explanations.

Why the eyewitnesses’ testimony is discredited

 In essence, Respondent’s witnesses testified that they did

not observe any loose or hazardous materials on the highwall on

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February 5. However, MSHA and DER inspectors, who observed the
site the next day testified that they observed numerous loose
materials, cracks, mudslips, and material falling from the
highwall. I observed their demeanor, and found their testimony
credible. There is no evidence of any bias or interest on the
part of these witnesses which would dilute the credibility of
their eyewitness testimony. Also, their testimony regarding
conditions they observed on February 6 finds corroboration in the
recognition by Scouazzzo, Todd, and Woods, of loose materials in
photographs taken on February 6. For these reasons I accept the
testimony of Petitioner’s eyewitnesses regarding the conditions
of the highwall on February 6. Given this conclusion, the
testimony of Respondent’s eyewitnesses must be considered to be
lacking some credibility. Further, the eyewitness testimony of
the conditions on February 5 can be considered trustworthy only
if it is more likely than not that the conditions observed on
February 6 occurred between when the site was observed by
Respondent’s witnesses, and when it was examined by the
inspectors on February 6.

 The parties elicited opinion testimony from non-expert

witnesses regarding the likelihood of a significant change in the
condition of the highwall between February 5 and February 6.
These witnesses discussed in subjective terms the weather
conditions in the relevant time period and their impact upon the
highwall. Since the lay witnesses did not base their opinions
upon empirical data, I choose to not accord these opinions any
weight. In contrast, the expert witnesses, Scovazzo and Wu,
based their opinions upon detailed empirical weather data set
forth in the testimony and records maintained by Krise. I thus
accord more weight to the testimony of the experts that the
conditions observed on February 6, could have been caused by the
freeze-thaw effect. The weather data does not indicate that a
significant thaw had occurred overnight on February 5, or that
there was any dramatic weather change in the 24 hour period
preceeding February 6 (See, 15 FMSHRC 424 at 443). Indeed,
Krise’s data indicates that the high temperatures for
February 3, 4 and 5 were 50 degrees, 56 degrees, and 58 degrees,
respectively. The temperatures throughout these days were all
above freezing. I thus accept Wu’s opinion that, in essence,
since there was not an extreme change between a freeze and a thaw
in the two days preceeding February 6, it was not probable that
the conditions depicted in photographs taken on February 6 had
developed in one day. I thus find that it is more likely than
not that the hazardous conditions observed on February 6 did not
occur overnight, and that at least some of those conditions were
in existence on February 5. I thus discredit the eyewitnesses’
testimony regarding conditions observed on February 5.

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 Accordingly, I reiterate my initial findings regarding the

citations and orders at issue, and penalties to be imposed
(16 FMSHRC, supra, 444-451).

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W.,
Washington, D.C. 20037 (Certified Mail)

/ml

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