Consolidation Coal Company

Plain-English summary

Consolidation Coal Company was cited after company officials entered a damaged vehicle at the Blacksville No. 1 Mine during an investigation of a fatal methane explosion. The Secretary alleged that the officials altered evidence in violation of section 103(j) of the Mine Act. Judge Gary Melick found that the citation did not charge the statutory violation correctly and that the evidence did not show that material evidence was altered or destroyed. He vacated the citation, granted the contest proceeding, and dismissed the related $50,000 civil-penalty proceeding.

Decision snapshot

• Cited provisions: 30 U.S.C. § 813(j); 30 C.F.R. § 50.12
• Outcome: Citation No. 3109525 was vacated, the contest was granted, and the civil-penalty proceeding was dismissed.
• Key point: The Secretary had to prove the violation actually charged and did not do so where the evidence showed authorized access and an effort to preserve, rather than destroy, evidence.

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 7, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 93-146-A
Petitioner : A.C. No. 46-01867-03938
v. : Blacksville No. 1 Mine
:
CONSOLIDATION COAL COMPANY, :
Respondent :
:
CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDING
Contestant :
v. : Docket No. WEVA 93-81-R
: Citation No. 3109525; 11/09/92
SECRETARY OF LABOR, : Blacksville No. 1 Mine
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Respondent :

                            DECISION

Appearances: Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Arlington, Virginia for the
Secretary of Labor;
David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia for the Consolidation Coal Company.

Before: Judge Melick

 These consolidated cases are before me pursuant to Section

105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq., the “Act,” to challenge Citation
No. 3109525 issued by the Secretary of Labor to the Consolidation
Coal Company (Consol) on November 9, 1992, for an alleged
violation of Section 103(j) of the Act and to challenge the
proposed civil penalty of $50,000. The general issue before me
is whether Consol violated Section 103(j) of the Act and, if so,
what is the appropriate civil penalty to be assessed considering
the criteria under Section 110(i) of the Act.

 Section 103(j) provides in relevant part that “in the event

of any accident occurring in any coal or other mine the operator

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shall . . . take appropriate measures to prevent the destruction
of any evidence which would assist in investigating the cause or
causes thereof.”

The citation at bar charges as follows:

The mine operator altered evidence which would assist in the
accident investigation of the fatal methane explosion that
occurred on March 19, 1992 at Consolidation Coal Company’s
(Consol) Blacksville No. 1 Mine. A Consol vehicle assigned to
Rod Baird, Environmental Engineer, was located in the blast
area near the Production shaft 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 closable 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. Scheller at the time of this violation was
Consolidation Coal Company’s Corporate Counsel for MSHA and
OSHA affairs. Morrison was the Blacksville No.1 Mine Safety
Supervisor.

Upon subsequent written inquiry from MSHA, the operator
through counsel represented that the cloth bag contained an
empty metal clipboard, along with items of Baird’s personal
effects.

 As clarified at hearing the Secretary is not charging any

violation herein with respect to the “metal clipboard”, “Baird’s
personal effects” or the “cloth bag of other items” noted on the
face of the citation. The Secretary also made clear at hearing
that the location of the noted methane detector within the Baird
vehicle was not material to his investigation and that,
accordingly, the movement of that methane detector was not, in
itself, considered a violation in this case.

 Preliminarily I find that the allegations within the four

corners of the citation do not state a violation of Section
103(j) of the Act. The citation does not allege that Consol
failed to “take appropriate measures to prevent the destruction

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 of any evidence which would assist in investigating the cause or

causes” of the accident at issue. Rather it alleges only that the
operator “altered evidence which would assist in the accident
investigation”. Accordingly the citation must be dismissed for
failure to charge a violation of Section 103(j) of the Act.

 However, even assuming, arguendo, that a violation of

Section 103(j) was properly charged, the Secretary has not met
his burden of proving that Consol failed to “take appropriate
measures to prevent the destruction” of the methane detector at
issue in this case. While not specifically germane to the
violation charged herein, I note that the Secretary has also not
shown in this case that any material evidence was, in fact, ever
altered or destroyed. Moreover, even assuming, arguendo, that a
violation of Section 103(j) was properly charged, the credible
evidence shows that the Consol officials charged in the citation
conducted their search of the subject vehicle (during which the
methane detector was found) only after receiving specific
authorization to do so from the Secretary’s agent, his chief
on-site investigator, and only after being told in effect that
the vehicle was no longer within the scope of the Secretary’s
investigation. Finally, the actions of Consol officials in
removing the subject 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.

 In this regard, Ronald Wooten, Consol’s Vice President for

Safety, testified that he, along with company counsel,
Walter Scheller, arrived at the Blacksville No. 1 Mine around
8:00 a.m. on March 21, 1992, as part of the continuing
investigation of an explosion at the mine on March 19, 1992. A
request had been made from the widow of Rodney Baird to recover
certain personal effects. Baird, who was killed in the
explosion, had been employed as an environmental engineer for
Consol. Wooten and Scheller were also continuing to search for
certain training records requested by MSHA.

 Wooten and Scheller accordingly requested permission from

the Secretary’s chief on-site investigator, James Rutherford,
to enter the company vehicle assigned to Baird to search for
these items. According to Wooten, Rutherford responded “that’s
okay we’re through with it” and indicated that he was “done with
the vehicle”. Based on this authorization to search and remove
items from the Baird vehicle and upon Wooten’s understanding that
they would not otherwise have been permitted to do this, Wooten
concluded that the vehicle had already been inventoried by MSHA.

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 Walter Scheller, then in-house lawyer for Consol, had

subsequently been promoted to superintendent at several Consol
mines. He was at the Blacksville No.1 Mine site on March 19,
1992, shortly after the explosion and returned on March 21, 1992,
between 8:00 and 9:00 a.m., along with Ron Wooten. Informed that
certain training records and personal effects of the deceased
Rodney Baird were in the subject vehicle, Scheller and Wooten
sought permission from Rutherford to search the vehicle and
retrieve those items. According to Scheller, Rutherford
responded in reference to the requested search “okay we’re done
with it” -- words to the effect that MSHA had completed its
investigation of the vehicle. Scheller also recalls that
Rutherford then gave them permission to search the vehicle and
presumably retrieve Baird’s personal effects and any training
records.

 Scheller testified that he, along with John Morrison, then

proceeded to the Baird vehicle at around 10:00 that morning.
There were several MSHA officials and numerous union and Consol
officials in the area who they passed en route to the vehicle.
It was covered with a blue tarpaulin held by bungee cords. They
moved the tarpaulin and Scheller entered the driver’s side. He
recalled observing a metal clipboard, a small bible, a pop can,
keys, a wallet and a methane detector with a charger. Scheller
recalled telling Morrison when he found the methane detector to
“remember where we found it”. Scheller maintains that he was
still inside the vehicle when MSHA Inspector Joseph Vallina
approached and asked what they were doing. Scheller testified
that he told Vallina that Rutherford had given permission to
search the vehicle and he had discovered a methane detector.
Vallina purportedly told Scheller to return the detector to the
vehicle and not to go inside the vehicle again. According to
Scheller they then stopped their search, reattached the tarpaulin
and returned to the mine office accompanied, at Vallina’s
direction, by Vallina’s colleague, MSHA Inspector Teaster.

 Scheller, Morrison and Teaster then returned to the mine

office with the cloth bag containing items collected from the
car. At the office Rutherford confirmed to Teaster that he had
approved of the search. Scheller recalled asking Rutherford
whether there was a problem and Rutherford responded “no”.
Scheller noted that the contents of the bag were emptied on a
table in the supervisor’s office in plain view of Rutherford and
other personnel. He also noted that Inspector Vallina never
requested to look in the bag. Scheller further testified that he
had planned on giving the methane detector to Rutherford because
he thought it could be important to the MSHA investigation. He
reaffirmed that he had not destroyed anything taken from the
vehicle. He was charged in the instant citation on November 9,

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1992, more than seven months after this incident and, according
to Scheller, only after MSHA investigators became hostile to
Consol.

 John Morrison, then safety supervisor at the Blacksville No.

1 Mine, was present when Scheller asked permission from
Rutherford to search the Baird vehicle for personal effects and
training records. Rutherford consented to this. Morrison
recalled that it was around 9:30 or 10:00 in the morning in
“broad daylight” when they arrived at the vehicle and MSHA
inspector Joe Vallina and two other inspectors were standing in
plain view on the bank above them. Scheller opened the driver’s
side door and found, among other things, Baird’s wallet, a bible,
a key ring and some wrestling club papers, along with a hand held
methanometer. Inspector Vallina then came down to the vehicle
and asked what they were doing. Scheller responded that
Rutherford had authorized the search to look for personal effects
and hazard training records and volunteered “I found this as
well” showing Vallina the methanometer. Morrison recalled that
Scheller was then standing by the open door of the vehicle and,
on Vallina’s request, returned the methanometer to where he found
it. Upon returning to the mine office, they dumped the contents
of the bag of items collected from the Baird vehicle on a table
in the superintendent’s office. The office door was open.

 MSHA Inspector Joseph Vallina corroborates this testimony in

essential respects. He and Inspector Teaster were at the time
only 25 feet from the Baird vehicle. He first noticed Scheller
as he was exiting the vehicle. Scheller told Vallina that
Rutherford had given them permission to retrieve training records
from the car. When asked if he had anything else, Scheller
reportedly responded that he had found a methane detector and
asked if he should return it to the car.

 Within this framework of corroborated and credible evidence

I conclude that, indeed, Scheller had not only been given
specific permission by the Secretary’s authorized agent to search
the Baird vehicle and to remove certain articles but that he was
also told that the vehicle, in essence, was no longer within the
scope of the Secretary’s investigation. I further find credible
Scheller’s explanation that he intended to hand the methane
detector over to the Secretary’s chief on-site investigator,
James Rutherford, as possible material evidence. Indeed, the
most rational explanation under the circumstances is that
Scheller intended to protect and preserve evidence rather than
destroy it.

 If anyone were serious about secreting or destroying such

evidence, it is highly unlikely that he would have done so in

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broad daylight in plain view of Federal investigators. Moreover,
it is unlikely that he would have waited two days after the
accident to search for such evidence. If, indeed, there was any
intention to secrete or destroy such evidence, one would also not
expect the perpetrator to first ask permission from the chief
Federal investigator to search the vehicle in which the evidence
was located. A more likely scenario of a perpetrator with such
intent would be a surreptitious night search, without permission
and well before investigators had several days opportunity to
have searched the vehicle. It may also reasonably be inferred
that, at that early stage of the investigation of a possible
methane explosion and before the Secretary had charged any
violations, the presence of a methane detector in the vehicle of
a Consol official could be considered exculpatory. Consol
officials would accordingly be motivated to preserve rather than
destroy such evidence. Under the circumstances I do not find
that the Secretary has met his burden of proving that Consol
failed to take “appropriate measures to prevent the destruction”
of the methane detector or that, in fact, any material evidence
was altered or destroyed.

 In reaching these conclusions I have not disregarded the

testimony of MSHA investigator Rutherford. He was, indeed, the
ranking MSHA investigator on the scene. He was then also in
charge of all MSHA engineering departments including accident
investigation and had a total of 31 years experience with Federal
mining programs. Rutherford recalled that at the time of
Scheller’s request he was “pretty busy” dealing with many
investigative concerns. He recalled, however, that he did, in
fact, give Scheller permission to remove training records from
the subject vehicle which he, Rutherford, had previously
requested from Consol and to retrieve the deceased’s wallet and
keys for his widow. Rutherford testified that he had no
recollection of telling Scheller and Wooten that MSHA was
“through with the vehicle”. He subsequently denied making such a
statement.

 However, because Rutherford was admittedly “pretty busy” at

the time, dealing with many aspects of the serious multiple
fatality investigation he was directing, I conclude that his
recollection of the conversation may not have been as clear as
could otherwise be expected. Indeed, I note in this regard that
Rutherford even omitted from his earlier more contemporaneous
notes a significant part of the conversation with Scheller and
Wooten which he subsequently recalled. Moreover, I find it
highly unlikely that such a skilled and experienced investigator
would have permitted Consol employees to search and/or remove
anything from a vehicle at the scene of a major investigation

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unless he was confident that his investigators had already
searched it.

 In addition, the testimony of Scheller and Wooten that

Rutherford told them MSHA was “through with the vehicle” is
certainly consistent with Rutherford’s granting permission to
search and remove certain articles from that vehicle. This is
further corroborated by Morrison, who also testified that
Rutherford consented to the search. I also note that Rutherford
testified that, on the day before this incident, he had
instructed his investigators to inventory all of the vehicles
within the affected area. This would suggest that Rutherford may
indeed have then believed that the Baird vehicle had already been
inventoried. In any event, even Rutherford acknowledges that he
consented to the search by Scheller of the Baird vehicle.

 Under all the circumstances, I find that there has been no

violation of Section 103(j) of the Act and Citation No. 3109525
must accordingly be vacated.1

                         ORDER

 Citation No. 3109525 is hereby vacated. Contest Proceeding

Docket No. WEVA 93-81-R is granted and Civil Penalty Proceeding
Docket No. WEVA 93-146-A is dismissed.

1
  Since it has been found in this case that an authorized

agent of the Secretary consented to Scheller’s search of the
Baird vehicle, there likewise could be no violation of the
standard at 30 C.F.R. § 50.12 as suggested in the Secretary’s
post hearing motion to amend. It is noted that the Secretary had
specifically declined, at hearing, to amend the citation to
charge a violation of that standard. His subsequent belated
motion filed with his post hearing brief to charge
“alternatively” a violation of 30 C.F.R. § 50.12 was denied.
That motion is accordingly now moot.

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                         Gary Melick
                         Administrative Law Judge
                         703-756-6261

Distribution:

David Hardy, Esq., Jackson and Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

/jf

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