Cannelton Industries, Inc.

Plain-English summary

Cannelton Industries was cited after inspectors found a large accumulation of coal and coal dust beneath a conveyor belt at its underground mine. The Commission affirmed that Cannelton violated 30 C.F.R. § 75.400, but vacated the finding that the violation resulted from unwarrantable failure and vacated the individual-liability findings against foremen Charles Patterson and George Richardson. The case was remanded for further findings about cleanup efforts and, if necessary, reassessment of penalties. Two commissioners would have affirmed the unwarrantable-failure and individual-liability findings.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The violation was affirmed, the unwarrantable-failure and individual-liability findings were vacated, and the case was remanded.
• Key point: A proven coal accumulation established the violation, but the majority required further analysis of the operator's cleanup efforts before deciding aggravated conduct and individual liability.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                          July 27, 1998

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEVA 94-381
: WEVA 95-100
CANNELTON INDUSTRIES, INC., : WEVA 95-101
CHARLES PATTERSON, and :
GEORGE RICHARDSON :

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

                                          DECISION

BY: Riley, Verheggen, and Beatty, Commissioners

     These consolidated civil penalty proceedings, arising under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. ' 801 et seq. (1994) (AMine Act@ or AAct@), involve a citation
issued to Cannelton Industries, Inc. (ACannelton@) alleging an unwarrantable and significant and
substantial (AS&S@) violation of 30 C.F.R. ' 75.4001 for failure to clean up an accumulation of
coal under a conveyor belt, and related allegations that Charles Patterson and George Richardson,
shift foremen for Cannelton, were personally liable under section 110(c) of the Mine Act, 30
U.S.C. ' 820(c), for knowingly authorizing the violation. Administrative Law Judge T. Todd
Hodgdon concluded that Cannelton violated section 75.400 and that the violation was S&S and
the result of unwarrantable failure. 18 FMSHRC 651, 654-59 (Apr. 1996) (ALJ). He also
concluded that Patterson and Richardson knowingly authorized the violation by not taking steps
to have the accumulation cleaned up. Id. at 659-61. For the reasons that follow, we affirm the
judge=s finding of violation, vacate his unwarrantable failure and section 110(c) findings, and
remand for further proceedings.

   1
       Section 75.400 states:

                    Coal dust, including float coal dust deposited on rock-
            dusted surfaces, loose coal, and other combustible materials, shall
            be cleaned up and not be permitted to accumulate in active
            workings, or on electric equipment therein.

                                              I.

                            Factual and Procedural Background

    On March 1, 1994, Michael Hess, an inspector with the Department of Labor=s Mine

Safety and Health Administration (AMSHA@), conducted a quarterly inspection of Cannelton=s
Stockton Mine (Portal Nos. 1 and 130), an underground coal mine in Kanawha County, West
Virginia. 18 FMSHRC at 652; Gov=t Ex. 1. At that time, Cannelton was constructing a new
section to reroute its No. 3 conveyor belt, and coal was being mined at the face, loaded into
shuttle cars, and dumped into a temporary feeder on the conveyor belt. 18 FMSHRC at 652; Tr.
250-52, 259, 325-27. While inspecting the conveyor belt, Hess found an accumulation of dry,
loose coal and coal dust that measured approximately 10 feet square and 4 feet deep, which was
in contact with the belt and roller. 18 FMSHRC at 652-53; Tr. 41-44, 49-50; Gov=t Exs. 1 & 5 at

3. The accumulation was located under the V-scraper, a device that removes coal from the
   bottom, or return, belt. 18 FMSHRC at 652-53 & n.1; Tr. 60, 181-82, 256-57, 325, 384. Upon
   reviewing the preshift-onshift mine examination reports, Inspector Hess found that, under the
   section entitled AViolations and other Hazardous Conditions Observed and Reported,@ the No. 3
   belt V-scraper had been reported as Adirty@ or Aneeds clean[ing]@ on every shift during the
   previous 2 weeks with no indication that any corrective action had been taken. 18 FMSHRC at
   653; Tr. 45-46, 50, 53, 66; Gov=t Exs. 1, 9 & 15. As shift foremen, both Patterson and
   Richardson had reviewed and countersigned the preshift-onshift reports. 18 FMSHRC at 658,
   660; Gov=t Exs. 9 & 15.

   Based on the foregoing, Inspector Hess issued Cannelton Citation No. 4195028,2 pursuant
   

   to section 104(d)(1) of the Mine Act, 30 U.S.C. ' 814(d)(1), alleging an unwarrantable and S&S
   violation of section 75.400 for failure to clean up the accumulation. 18 FMSHRC at 653.
   Subsequently, the Secretary of Labor proposed a civil penalty assessment of $3,600 against
   Cannelton. Id. at 661; Gov=t Ex. 6. In addition, following a special investigation, the Secretary
   proposed civil penalty assessments of $2,000 each against Patterson and Richardson, pursuant to
   section 110(c) of the Mine Act, alleging that, by countersigning the preshift-onshift reports and
   2
   Citation No. 4195028 states:

                  Management showed a high degree of negligence by
           allowing loose dry coal to accumulate under the No. 3 belt
           conveyor to a point where the loose coal was in contact with the
           belt. The coal accumulation measured approximately 10 feet in
           width, 10 feet in length and 4 feet in height. This condition was
           reported in the pre-shift mine examination report since 2/15/94 on
           each shift with no corrective actions taken. A fire hazard is present
           with a moving conveyor belt running in loose dry coal.
   

Gov=t Ex. 1.
failing to take corrective action, they knowingly authorized the violation. 18 FMSHRC at 653,
659-61; Gov=t Exs. 11 & 12. Cannelton, Patterson, and Richardson challenged the proposed
assessments.

    Following an evidentiary hearing, the judge concluded that Cannelton violated section

75.400, that the violation was S&S, and that it resulted from Cannelton=s unwarrantable failure to
comply with the standard. 18 FMSHRC at 654-59. He also concluded that Patterson and
Richardson knowingly authorized the violation by not taking steps to have the accumulation
cleaned up. Id. at 659-61. In analyzing the issue of violation, the judge found that Athere is no
dispute that an accumulation of coal, as described by Inspector Hess, existed in the area of the V-
scrapper [sic] on the No. 3 belt.@ Id. at 654. The judge further found that the accumulation had
grown over a 2-week period of time. Id. at 654-55. He based this finding on the testimony of
Dwight Siemiaczko, Lee Tucker, and Sheldon Craft, the belt examiners who had noted that the
No. 3 belt V-scraper was dirty in the preshift-onshift reports throughout the 2-week period. Id.
The judge discredited the testimony of Patterson, Richardson, and Mickey Elkins, the shift
foremen, that the accumulation had happened a short time before the inspector arrived. Id. at
655-56. In crediting the testimony of the belt examiners over that of the shift foremen, the judge
stated:

           The three foremen theorized 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 where it
           remained until it was removed by the V-scrapper [sic]. They
           believed that this must have happened a short time before the
           inspector arrived.

                  I find that the accumulation developed over a two week
           period as described by Siemiaczko, Tucker and Craft. There is no
           evidence that any of them had any reason not to tell the truth. Nor
           was there any indication at the hearing that they were not credible.

                    On the other hand, Richardson and Patterson not only have
           the responsibility for defending the company, but face personal
           liability as well. Their self-serving statements are not persuasive
           when compared with the other evidence in the case. Furthermore,
           there is no evidence to corroborate their speculation.

Id. at 655. With regard to the issues of unwarrantable failure and section 110(c) liability, the
judge found that, because Patterson and Richardson had countersigned the preshift-onshift
reports, Cannelton had been placed on notice that greater efforts were necessary for compliance
and Patterson and Richardson had known about the accumulation. Id. at 658-61. He also found
that Cannelton, Patterson, and Richardson did not make any effort to clean up the accumulation.
Id. at 658-61. The judge assessed civil penalties of $3,600 for Cannelton and $500 each for
Patterson and Richardson. Id. at 661-62. The Commission granted the petition for discretionary
review (APDR@) subsequently filed by Cannelton, Patterson, and Richardson challenging the
judge=s decision.

                                             II.

                                         Disposition

     Cannelton, Patterson, and Richardson argue that the judge=s determinations are contrary

to law and not supported by substantial evidence. PDR at 1; CP&R Br. at 1. The contestants
assert that the judge erred in crediting the belt examiners based solely on their Aemployment
status.@ PDR at 5-7; CP&R Br. at 5-9; CP&R Reply Br. at 1-6. They also assert that the judge
failed to address the testimony of Elkins, a former foreman who testified that, 32 hours prior to
the inspection, the accumulation was smaller than when the inspector cited it. PDR at 6, 8;
CP&R Br. at 7, 10-11 (citing Tr. 321-24). In addition, the contestants assert that the judge erred
in finding that no evidence supports the foremen=s Aspeculation@ as to the cause of the
accumulation. PDR at 6-7; CP&R Br. at 7-8; CP&R Reply Br. at 5-6 n.3. They further contend
that the judge erred in finding that the notations in the preshift-onshift reports were sufficient to
provide notice of the accumulation and that the judge confused the testimony of Elkins and
Patterson regarding cleanup efforts. PDR at 8-9; CP&R Br. at 8-9; CP&R Reply Br. at 6-15.3

   3
       Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. ' 823(d)(2)(A)(iii), and

Commission Procedural Rule 70(f), 29 C.F.R. ' 2700.70(f), provide that Commission review is
limited to the questions raised in a granted petition for discretionary review. In their petition for
discretionary review, Cannelton, Patterson, and Richardson focus on the judge=s factual findings
on which he based his ultimate conclusions regarding the issues of violation, unwarrantable
failure, and section 110(c) liability, without expressly challenging those conclusions. See PDR at
4-9. The contestants merely request that the Commission reverse the judge=s Adecision.@ Id. at 6,

9. We construe the contestants= petition to request reversal of the judge=s conclusions regarding
   the issues of violation, unwarrantable failure, and section 110(c) liability. However, we admonish
   The Secretary responds that substantial evidence supports the judge=s determinations. S.
   Br. at 5-19. She asserts that the judge did not credit the testimony of the belt examiners based
   only on their Aemployment status,@ but that his determination is buttressed by the foremen=s
   personal interests in the outcome of the case. Id. at 5-12. The Secretary also maintains that the
   judge considered Elkins= testimony but gave greater credence to the testimony of the belt
   examiners that the accumulation had developed during the 2 weeks prior to the inspection. Id. at
   11-12 n.4. Similarly, she asserts that the judge considered evidence supporting the foremen=s
   Aspeculation@ as to the cause of the accumulation but gave it little credence because it was
   uncorroborated. Id. The Secretary further contends that the notations in the preshift-onshift
   reports, along with the foremen=s observance of some amount of accumulation prior to the
   inspection, provided the contestants sufficient notice of the violative condition and that their
   failure to ensure that it was cleaned up amounted to aggravated conduct. Id. at 14-18.

   A. Violation

   The Commission has held that section 75.400 Ais violated when an accumulation of
   

   combustible materials exists.@ Old Ben Coal Co., 1 FMSHRC 1954, 1956 (Dec. 1979).
   Although the Commission has recognized that Asome spillage of combustible materials may be
   inevitable in mining operations@ (id. at 1958), we have held that a violative accumulation exists
   Awhere the quantity of combustible materials is such that, in the judgment of the authorized
   representative of the Secretary, it likely could cause or propagate a fire or explosion if an ignition
   source were present.@ Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 1980) (footnotes
   omitted).

petitioners and counsel to adhere to the requirements of the Mine Act and the Commission=s
procedural rules. Because the contestants do not challenge the judge=s findings related to his S&S
conclusion, that issue is not before the Commission. See id. at 4-9.
Here, the contestants do not dispute that a sizable accumulation was present when the
citation was issued. The accumulation measured approximately 10 feet in length, 10 feet in width,
and 4 feet in depth. Tr. 41. Moreover, Inspector Hess testified that this amount of loose coal and
coal dust would likely cause a fire because the belt and roller running in contact with the coal was
a potential source of ignition. Tr. 43, 49-52. The fact that the coal was damp beneath the surface
did not render it incombustible because, as the judge noted, it could dry out and ignite. 18
FMSHRC at 657 (citing Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 969 (May
1990); Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (Aug. 1985)). In light of
the quantity of the accumulation at the time the citation was issued, we conclude that substantial
evidence4 supports the judge=s finding that Cannelton violated section 75.400. Accordingly, we
affirm the judge=s conclusion.

   B.      Unwarrantable Failure

     The unwarrantable failure 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 Areckless disregard,@
Aintentional misconduct,@ Aindifference,@ or a Aserious 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. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission=s unwarrantable
failure test). The Commission Ahas recognized that a number of factors are relevant in
determining whether a violation is the result of an operator=s unwarrantable failure, such as the
extensiveness of the violation, the length of time that the violative condition has existed, the
operator=s efforts to eliminate the violative condition, and whether an operator has been placed on
notice that greater efforts are necessary for compliance.@ Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994) (citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992)).

   Substantial evidence supports the judge=s finding that the accumulation was extensive. See
   4
     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). ASubstantial evidence@ means A>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 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
18 FMSHRC at 653-54. Inspector Hess testified the accumulation measured approximately 10
feet square and 4 feet deep. Tr. 41. Substantial evidence also supports the judge=s finding that
Cannelton, through its foremen, had been placed on notice by the preshift-onshift reports that
greater efforts were necessary for compliance with the regulation. See 18 FMSHRC at 658-59.
Such reports are relevant in demonstrating that an operator had notice that greater efforts were
necessary to assure compliance with section 75.400. See Peabody, 14 FMSHRC at 1262. On
virtually every shift during the 2 weeks prior to the inspection, the No. 3 belt V-scraper had been
reported in the preshift-onshift reports as Adirty@ or Aneeds clean[ing]@ under the section entitled
AViolations and other Hazardous Conditions Observed and Reported.@ Gov=t Exs. 9 & 15.
Patterson, Richardson, and Elkins reviewed and countersigned the preshift-onshift reports during
this period and they acknowledged that the notations indicated that an accumulation existed. Id.;
Tr. 315-16, 333, 335-36, 366, 379, 395, 402, 425-26. Thus, although the belt examiners did not
notify the foremen orally of the accumulation, we conclude that Cannelton received notice that
greater efforts were necessary to keep the No. 3 belt V-scraper clean.

    With regard to the length of time the violative condition existed, however, we believe that

the judge failed to address relevant testimony in finding, based on his credibility determination,
that the accumulation had grown for 2 weeks prior to the inspection. See 18 FMSHRC at 653-
56, 658. 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 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 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 (Nov. 1995) (ADust Cases@) (quoting
Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)). 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).

    Initially, we find unavailing the contestants= argument that the judge=s consideration of the

foremen=s personal interests was inappropriate in making his credibility determination. A judge
may evaluate numerous factors in determining witness credibility, including the motivation of and
relationship between witnesses. Huston v. Secretary of Health and Human Servs., 838 F.2d
1125, 1132 (10th Cir. 1988); NLRB v. Pyne Molding Corp., 226 F.2d 818, 819 (2d Cir. 1955);
Defosse v. Secretary of Health and Human Servs., 670 F. Supp. 1078, 1080-81 (D. Mass. 1987).
However, the judge may not reject testimony strictly on the basis of a relationship between a
witness and a party to the proceeding. Breeden v. Weinberger, 493 F.2d 1002, 1010 (4th Cir.
1974). In this case, we conclude that the judge did not reject the foremen=s testimony solely on
the basis of their employment relationship with Cannelton. Although the judge recognized that
ARichardson and Patterson not only have the responsibility for defending the company, but face
personal liability as well,@ he found their testimony Anot persuasive when compared with the other
evidence in the case.@ 18 FMSHRC at 655. Therefore, we conclude that the judge=s
consideration of the foremen=s personal interests is not a basis on which to overturn his credibility
determination.
Nevertheless, we agree with the contestants that the judge failed to address Elkins=
testimony that, 32 hours prior to the inspection, the accumulation was smaller than when the
inspector cited it. See id. In considering the foremen=s theory that the accumulation had
developed a short time before the inspector arrived, the judge recognized that Elkins Ahad walked
the belt about [32] hours before the citation was issued and although he observed a fairly large
accumulation, it was not the size of the one found by Hess and it was not touching the belt or
rollers.@ Id. However, the judge rejected the foremen=s theory, in part, due to their self-interest, a
basis not applicable to Elkins, who had since left the company and, therefore, was not responsible
for defending it, and who was not facing personal liability. See id.; Tr. 317-18. The judge
specifically discredited the testimony of Patterson and Richardson without supplying any reasons
for discounting Elkins= testimony.

    The substantial evidence standard of review requires that a fact finder weigh all probative

record evidence and that a reviewing body examine the fact finder=s rationale in arriving at his
decision. Amax Coal Co., 18 FMSHRC 1355, 1358 n.7 (Aug. 1996). In order for the
Commission to effectively perform its review responsibility, a judge must analyze and weigh the
relevant testimony, make appropriate findings, and explain the reasons for his decision. Secretary
of Labor on behalf of Hyles v. All Am. Asphalt, 18 FMSHRC 2096, 2101 (Dec. 1996).
Commission Procedural Rule 69(a) also requires that a judge=s decision Ainclude all findings of
fact and conclusions of law, and the reasons or bases for them, on all the material issues of fact,
law or discretion presented by the record.@ 29 C.F.R. ' 2700.69(a). In light of the judge=s failure
to address Elkins= testimony, we cannot effectively review his finding, based on his credibility
determination, that the accumulation had grown for 2 weeks prior to the inspection. Thus, we
vacate the judge=s finding and remand the matter for further consideration. We direct the judge to
consider Elkins= testimony and make a credibility determination with respect to Elkins.

    We also agree with the contestants that the judge erred in finding that there is no evidence

to corroborate the foremen=s Aspeculation@ as to the cause of the accumulation. In discrediting the
foremen=s testimony, the judge stated A[n]o one testified . . . that the belt was out of alignment,
that coal was observed traveling from the feeder to the V-[scraper] on the bottom belt or that the
belt was re-aligned after the accumulation was discovered.@ See 18 FMSHRC at 655-56.
However, the record indicates that both Richardson and Inspector Hess observed coal coming off
the belt at the time they discovered the accumulation. Tr. 46-47, 62, 273-74. Hess
acknowledged that Athe only way that [he] could conceive of the coal getting on the bottom belt@
was from the No. 3 belt feeder. Tr. 63-64. The belt examiners also corroborated this view.
Siemiaczko testified that he assumed that the accumulation was caused by either a Afeeder
misaligned on the belt@ or a splice in the belt. Tr. 136, 149. Tucker stated that he thought that
the accumulation was caused by Aspillage from the feeders . . . onto the bottom belt.@ Tr. 194.
Craft also stated that he thought that the accumulation was caused by Athe feeder dump[ing] on
the belt. Tr. 226. Moreover, Richardson testified that, after discovering the accumulation, he
telephoned the section boss, Steve Dean, and told him to shut down and reset the feeder. Tr.
274-75, 312. For the purpose of our unwarrantable failure analysis, a key question is the duration
of the violative condition, not its specific cause. However, evidence of the cause of the
accumulation may corroborate Elkins= testimony that the accumulation was larger 32 hours after
he had observed it. We thus vacate the judge=s finding that no evidence supports the foremen=s
Aspeculation@ as to the cause of the accumulation, and remand the matter for further consideration
insofar as the cause of the accumulation may be relevant to the length of time that it had existed.

     Finally, with regard to Cannelton=s cleanup efforts, the judge failed to mention relevant

testimony in finding that Cannelton did not make efforts to eliminate the violative condition. See
18 FMSHRC at 658-59. Richardson testified that, on every shift, there were two men working on
the belts who would shovel, rock dust, and clean up around the drives and V-scraper. Tr. 264-65,

270. He explained that, because the V-scraper was a problem area and it was reported as dirty in
     the preshift-onshift reports, his men automatically knew to clean it. Tr. 266, 270, 314.
     Richardson also stated that, upon learning that the V-scraper was dirty, he directed his men to
     stop there and, if excessive coal was present, to clean it up. Tr. 282, 298-99. Richardson
     remembered having to realign the feeder two or three times during the 2 weeks prior to the
     inspection in order to correct spillage problems, and he testified that the coal was cleaned up each
     time. Tr. 289-90. Elkins also testified that Cannelton employed men whose job was to keep the
     belt clean. Tr. 352. He testified that, when an accumulation at the V-scraper reached the height
     of the belt, he would send men with shovels to remove some of it and that, during the 2 weeks
     prior to the inspection, he directed his men to do so. Tr. 338-39, 344-45, 363. Patterson also
     testified that he had two men assigned to cleaning belts on every shift. Tr. 376-77, 387, 396.
     Patterson testified that, during the 2 weeks prior to the inspection, he observed three
     accumulations at the V-scraper, one of which he specifically assigned his belt cleaners to clean up
     and the others which he shoveled himself. Tr. 386-92, 396, 407-08. Patterson explained that his
     men attempted to get a scoop to the area to clean up the accumulation but that the area was
     extremely wet and muddy so they were unable to do so. Tr. 408-10. Then, he directed the men
     to shovel the accumulation and he saw them shoveling before he left. Tr. 410, 412. Patterson
     testified that the two men shoveled the area for approximately 22 hours and then men working
     on the next shift, for whom Elkins was the foreman, finished cleaning and rock dusted the area.
     Tr. 412, 420-21, 423.

     We conclude that the judge failed to consider the testimony of Patterson, Richardson, and
     

     Elkins regarding their efforts to clean up the accumulation.5 Such remedial efforts are relevant to
     the unwarrantable failure evaluation and should have been considered by the judge. See, e.g.,
     Peabody, 14 FMSHRC at 1263-64; Utah Power & Light Co., 11 FMSHRC 1926, 1933-34 (Oct.
     1989). We therefore vacate the judge=s finding that Cannelton did not make efforts to eliminate
     the violative condition, and remand the matter for further consideration of the evidence adduced
     during the hearing on this issue. If, on remand, the judge determines that Cannelton made efforts
     to clean up the accumulation, he shall also evaluate such efforts insofar as they may be relevant to
     5
     We note that, as the contestants point out (CP&R Reply Br. at 6-9), the judge appears
     to have confused the testimony of Elkins and Patterson regarding the unsuccessful attempt to
     clean up the accumulation. 18 FMSHRC at 658-59.
     the length of time that the accumulation had existed.

     Our decision to vacate the judge=s unwarrantable failure finding should not be construed as
     

     advocating or encouraging operators to allow accumulations of coal to exist on a belt line. We
     fully recognize the seriousness of this particular violation and do not wish to downplay its
     significance. At issue here, however, is not whether a violation of section 75.400 occurred, or if
     the violation was S&S. Instead, the issue on review is a more narrow one that requires us to
     focus on whether the operator=s conduct rises to the level of unwarrantable failure. On this point,
     we are guided by established precedent that, to properly make this determination, a judge must
     fully evaluate the operator=s conduct in accordance with certain factors identified by the
     Commission to determine whether a violation is unwarrantable. The factor that is particularly
     germane on this appeal is the operator=s efforts to eliminate the violative condition.

     As discussed previously, the judge found that Richardson and Patterson did not make any
     

     specific attempts to have the accumulation cleaned up. 18 FMSHRC at 658. Based on our
     review of the record, this finding is contradicted by certain evidence adduced during the hearing.
     The judge appears to have failed to consider relevant testimony of Cannelton=s witnesses
     concerning their efforts to clean up the accumulation. Accordingly, we believe our responsibility
     is to vacate the judge=s decision, and remand the case with an instruction that the judge consider
     and evaluate this testimony and determine whether it influences his prior finding that this violation
     was unwarrantable.

     Unlike our dissenting colleagues, we will not ourselves attempt to determine here whether
     

     the evidence of cleanup efforts by Cannelton was sufficient to warrant elimination of the
     unwarrantable failure designation, or whether aggravated or intentional misconduct occurred. In
     our view, the determination is more appropriately made by the judge, who, as the trier of fact, had
     a previous opportunity to observe the witnesses directly, and is therefore in the best position to
     evaluate this testimony and determine whether, if credited, it requires a reversal of his previous
     finding that this violation was unwarrantable. We believe this approach is preferable to that taken
     by the dissenters, who elect to invade the province of the judge and evaluate the record testimony
     on their own and conclude that the judge=s failure to consider it was mere Aharmless error,@ based
     on their opinion that, even if credited, the evidence did not reflect a cleanup effort Areasonably
     designed to eliminate the accumulation.@ Slip op. at 15 n.4.6 We believe that our approach

     6
     In concluding that any efforts taken by Cannelton to clean up the accumulation were
     unreasonable and ineffectual, and therefore cannot provide a basis for a finding that the violation
     was not unwarrantable, our colleagues cite to their separate opinion in Peabody Coal Co., 18
     FMSHRC 494, 501 (Apr. 1994) (Chairman Jordan and Commissioner Marks, concurring in part
     and dissenting in part). In their opinion in Peabody, however, while Chairman Jordan and
     Commissioner Marks agreed with the Commission majority that the judge failed to appreciate the
     significance of water as a dust control measure in finding that the operator=s respirable dust
     violation was unwarrantable, they indicated that they would have instead vacated the judge=s
     determination and remanded for further analysis, based upon their unwillingness to conclude that
     ensures that due process of the law is afforded to all parties in making this crucial determination.

     In sum, we vacate the judge=s determination that the violation was the result of
     

     Cannelton=s unwarrantable failure, and remand for findings of fact related to the length of time
     that the accumulation had existed and Cannelton=s cleanup efforts.7 The judge shall also make
     new findings for any of the six penalty criteria set forth in section 110(i) of the Mine Act,

the record could not support an unwarrantable failure finding. Id. In that case, our dissenting
colleagues criticized the Commission majority for taking the type of approach they propose to
follow here C declining to allow the judge the opportunity to determine, in the first instance,
whether his analytical error warrants a reversal of his unwarrantability determination, based upon
their conclusion that the record can only support one conclusion.
7
In vacating the judge=s determination of unwarrantable failure we are not attempting to
downplay the seriousness of a violation alleging an accumulation of coal or coal dust in an
underground mining environment. Instead, our focus here is to determine if the operator=s
conduct rises to the level of unwarrantable failure. To properly make this determination, the
judge must evaluate this conduct in accordance with the factors utilized by the Commission to
determine whether a violation is unwarrantable.
30 U.S.C. ' 820(i),8 that are affected by his findings of fact and reassess the civil penalty against
Cannelton.

   C.      Section 110(c) Liability

     Section 110(c) of the Mine Act provides that, whenever a corporate operator violates a

mandatory safety or health standard, an agent of the corporate operator who knowingly
authorized, ordered, or carried out such violation shall be subject to an individual civil penalty. 30
U.S.C. ' 820(c). The proper legal inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff=d on other grounds, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983). Accord Freeman United Coal Mining Co. v. FMSHRC, 108
F.3d 358, 362-64 (D.C. Cir. 1997). To establish section 110(c) liability, the Secretary must prove
only that an individual knowingly acted, not that the individual knowingly violated the law.
Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int=l
Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). An individual acts knowingly where he is
Ain a position to protect employee safety and health [and] fails to act on the basis of information
that gives him knowledge or reason to know of the existence of a violative condition.@ Kenny
Richardson, 3 FMSHRC at 16. Section 110(c) liability is predicated on aggravated conduct
constituting more than ordinary negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245
(Aug. 1992). Here, we conclude that the judge erred in reaching his section 110(c) conclusions
by failing to consider evidence regarding the foremen=s efforts to eliminate the violative condition.
8
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.
     We have already concluded that the record supports the judge=s finding that Patterson and

Richardson, agents of Cannelton,9 possessed actual knowledge of the accumulation problem by
way of the preshift-onshift reports. Slip op. at 6. However, as we have determined, the judge
failed to consider Patterson=s and Richardson=s testimony regarding their efforts to clean up the
accumulation. Because an agent=s actions following his awareness of a violative condition are
critical to the section 110(c) analysis, we vacate the judge=s determination that Patterson and
Richardson are liable under section 110(c) and remand for findings of fact related to the foremen=s
cleanup efforts. In the event the judge finds section 110(c) liability, he shall 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).

                                            III.

                                        Conclusion

    For the foregoing reasons, we affirm the judge=s determination that Cannelton violated

section 75.400, vacate his determinations that the violation resulted from unwarrantable failure
and that the foremen are liable under section 110(c), and remand for further consideration
consistent with this opinion.

                                          James C. Riley, Commissioner

                                          Theodore F. Verheggen, Commissioner

   9
     At the hearing, the parties stipulated that Patterson and Richardson were agents of

Cannelton. Tr. 18-19.
Robert H. Beatty, Jr., Commissioner
Chairman Jordan and Commissioner Marks, dissenting in part:

    It is clear from the record in this case that an extensive accumulation of coal existed for at

least 2 weeks at the Cannelton mine, in violation of 30 CFR ' 75.400.1 It is also clear from the
record that Cannelton officials were indifferent to this violation, simply because it was a smaller
accumulation than those they personally considered dangerous. Because we agree with the
judge=s conclusion that Cannelton=s conduct was Ainexcusable,@ 18 FMSHRC 651, 659 (Apr.
1996) (ALJ), we would affirm his finding that the violation was a result of the operator=s
unwarrantable failure.

     The majority does not dispute the judge=s finding that the accumulation was extensive,

measuring approximately 10 feet square and 4 feet deep. Slip op. at 6. In fact, the inspector
testified that when the violation was abated, 8 to 12 tons of coal were removed. Tr. 54 (emphasis
added). Even one of the Cannelton foremen estimated that 6 to 8 tons of coal were taken away to
abate the violation. Testimony of Richardson, Tr. 306. The majority also agrees with the judge=s
conclusion that Cannelton was placed on notice of the violation by preshift-onshift reports. Slip
op. at 6. Nonetheless, despite overwhelming evidence provided by those same reports that the
accumulation had existed for at least 2 weeks, and despite clear proof that any efforts to eliminate
the accumulation were ineffectual at best and half-hearted at worst, the majority declines to affirm
the judge=s finding of unwarrantable failure.

    Our colleagues in the majority insist that a remand is necessary to permit the judge to

make a credibility determination with respect to Elkins, slip op. at 7, to ascertain the duration of
the violation. This is an unnecessary exercise for two reasons. First, the judge decided the
1
Although we agree with the majority that the judge properly found an accumulation
violation, slip op. at 5, we fear that the majority=s discussion of the violation may create the
incorrect impression that some level of accumulation is permitted under the standard. This is not
consistent with Commission case law. In defining an accumulation in Utah Power & Light Co.,
Mining Div., 12 FMSHRC 965, 968 (May 1990), the Commission emphasized that it was
ACongress= intention to prevent, not merely to minimize, accumulations@ and that section 75.400
was Adirected at preventing accumulations in the first instance, not at cleaning up the materials
within a reasonable period of time after they have accumulated.@ Id. (citing Old Ben Coal Co., 1
FMSHRC 1954, 1957 (Dec. 1979) (emphasis added).
question of duration when he found that the accumulation existed for 2 weeks, crediting the
testimony of the two fire bosses and a general laborer. 18 FMSHRC at 655. While explicitly
crediting this testimony over that of Richardson and Patterson, in making this finding he also
implicitly credited their testimony over that of Elkins. See Fort Scott Fertilizer - Cullor, Inc., 19
FMSHRC 1511, 1516 (Sept. 1997) (concluding that the judge implicitly credited miner=s
testimony that he was not aware of brake problems).

    More importantly, a remand is unnecessary because of the staggering amount of evidence

demonstrating that the accumulation had developed over a 2-week period. Thirty-five preshift
reports written during that 2-week period indicated that the No. 3 belt V-scraper was Adirty@ or
Aneed[ed] clean[ing].@ Gov=t Ex. 9. On 34 of those reports, the condition was reported as
Acontinued,@ indicating that it had previously existed. Tr. 316, 335-36. After reviewing these
reports (many of which he had countersigned) during the trial, Elkins was asked whether he
denied Athat there was an accumulation at the No. 3 belt near the V-scraper from February 14th to
march [sic] the 1st.@ Tr. 336. He replied, unequivocally, ANo, ma=am. I do not.@ Id.

     In addition to the preshift reports, which we find compelling, the testimony of the preshift

examiners makes clear that this accumulation increased over a period of 2 weeks, and was not
suddenly created just before the inspection. Dwight Siemiaczko testified that Afrom February
14th, . . . it grew in size from that day to March 1.@ Tr. 130. Lee Tucker stated that the
accumulation occurred A[o]ver the extended period of time . . . . I think the two weeks that we=re
talking about that=s recorded in the book.@ Tr. 195.2 Clearly, substantial evidence supports the
judge=s finding that this accumulation slowly grew over a 2-week period, and did not suddenly
emanate 3 hours before the inspection.3

    In remanding the case for further consideration of Cannelton=s efforts to clean up the

accumulation, the majority fails to recognize the deeply disturbing principle underlying
Cannelton=s action (or inaction). The reigning operating procedure at this mine was that the
foremen tolerated coal accumulations up to a certain amount. They were simply complacent
about accumulations smaller than those they personally considered dangerous. This classic
indifference to a dangerous ignition source is the prototype of an unwarrantable failure.

   The testimony of the foremen illustrates their blase attitude. For example, Elkins, when

asked what he considered a Amanageable@ amount of coal accumulation, stated A[t]welve inches or

   2
      The majority speculates that Siemiaczko=s and Tucker=s statements that the

accumulation may have been caused by a problem with the feeder could corroborate Elkins=
testimony about the size of the accumulation. Slip op. at 7-8. However, their testimony indicates
that even if that was the cause, the accumulation nonetheless developed over a 2-week period.
3
Although we need not reach the issue, we note that an unwarrantable failure designation
for an accumulation of this size might be supported even if the duration were 3 hours instead of 2
weeks.
so.@ Tr. 363. He readily admitted passing by the relevant area 32 hours before the inspection
and observing a 4 by 4 foot accumulation that was 18 to 24 inches deep. Tr. 322. When asked
when he would require miners to go to the area to shovel, he stated A[o]nce it [the accumulation]
got to a height that concerned me,@ which, he subsequently admitted, was when it was 6 to 8
inches from the belt. Tr. 338-39. A remand is not necessary to determine the credibility of this
witness. Even accepting his testimony concerning the size of the accumulation, his failure to exert
reasonable efforts to eliminate it supports the unwarrantable failure determination.
Richardson, when asked what he considered an excessive amount of coal requiring
cleanup, stated, A[A]n excessive amount of coal, it could be anything. It=s according to how high
your belt is,@ and suggested that it needed to touch the rollers. Tr. 283. He bluntly testified that:

           If there was a mound of coal there, [at the scraper] it presented no
           problem. . . . [Y]ou could have, like I told you, 14 to 16 inches of coal, I
           would think nothing of it if I had a place over here that had a coal spillage
           in it or something else wrote up that I needed the men to work on. That
           would be put on the last of my list. And if they got down to it, good. If
           not, it would be passed on.

Tr. 307.

    Patterson testified that he only saw spillage two times at the No. 3 belt, and that both

times it was 2 or 22 feet high, 4 feet by 6 feet. Tr. 389. When asked if he considered either of
the 2 or 22 foot high accumulations hazardous, he stated that he did not. Id.

    In sum, the operator=s baseline was that at least a foot of coal needed to accumulate before

it made sense to worry about it. It is not surprising, therefore, that Cannelton=s cavalier attitude
towards accumulations resulted in only the most perfunctory of efforts to eliminate it. The
evidence cited by the majority in support of its decision to vacate the judge=s finding that
Cannelton did not make efforts to clean up, slip op. at 8, reveals lackluster attempts more
indicative of Cannelton=s nonchalant attitude about the accumulation than of a sincere effort to
remove it. Even crediting the evidence on which the majority relies, substantial evidence indicates
that Cannelton=s cleanup attempt was woefully inadequate.

    First, foreman Richardson testified that he never asked for additional personnel to clean up

the area. When asked if he thought he needed additional help, he replied: ANot until I got the
violation >cause I never seen any problem there that I needed to shut down a section or anything
to pull extra people in.@ Tr. 304. Although he asserted that men worked to remove the
accumulation, he could not state how often or when this work was performed. Tr. 299.4 In

   4
       Patterson testified that he did shovel the accumulation once himself. Tr. 387. He also

testified that he assigned two men to clean belts and that on one occasion he specifically assigned
his belt cleaners to clean up the accumulation at the V-scraper, Tr. 386-92, although he failed to
addition, miners Siemiaczko and Craft testified that they were unaware of any effort to clean up
the accumulation during the 2 weeks prior to the inspection. Tr. 140-41, 227-28. Also, the

note these cleanup efforts in the examination books. Tr. 412, 422-23. Thus, the judge=s finding
that Aneither Richardson nor Patterson . . . made any specific attempt to have it [the accumulation]
cleaned up, 18 FMSHRC at 658, is an overstatement, but it constitutes harmless error in light of
Cannelton=s overwhelming failure to initiate a cleanup reasonably designed to eliminate the
accumulation.
inspector testified that nobody was cleaning up the accumulation when he arrived on the scene.
Tr. 60.

     The facts of this case are strikingly similar to those in the recent Commission case Amax

Coal Co., 19 FMSHRC 846 (May 1997), in which the Commission affirmed the judge=s decision
upholding an unwarrantable failure designation on an accumulations violation. As in this case,
Amax involved an extensive accumulation that existed for several shifts preceding the issuance of
the order. We rejected Amax=s defense that because the day shift manager=s decision to send only
one miner to clean up the accumulation was based on a good faith (although mistaken) belief that
this would be effective, the violation should not be designated unwarrantable. Id. at 851. We
emphasized that Athe operator=s good faith belief must be reasonable under the circumstances.@
Id. We held that the preshift examiner=s incorrect assessment of the spill was not reasonable in
light of the size of the accumulation. Similarly, we find that here, Cannelton=s efforts C even
including those cited by the majority as the basis for its remand C were clearly unreasonable and
patently ineffectual. See Peabody Coal Co., 18 FMSHRC 494, 501 (Apr. 1996) (Chairman
Jordan and Commissioner Marks, dissenting in part) (A[T]he success or failure of an operator=s
effort to achieve compliance is a factor that must be considered in deciding whether the operator
acted reasonably and in good faith.@).

    The Commission=s decision in Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992) is also

instructive. In that case, in which we affirmed an unwarrantable failure determination, the judge
credited the inspector=s testimony that an extensive accumulation of coal had existed for up to 1
week. Id. at 1261-62. Entries for seven of the eight preshift examinations made prior to the
inspection described problems with accumulations or spilling in the relevant area. Id. at 1262.
The Commission noted that the preshift reports showed not only that the operator had prior
notice of an accumulation problem, but also demonstrated Athat greater efforts were necessary to
assure compliance with section 75.400.@ Id. In addition, we acknowledged that Peabody=s failure
to remedy the spilling problem was a proper consideration in the unwarrantable failure
determination, and that the judge was correct to consider the inspector=s testimony that, as in this
case, at the time of the inspection no one was attempting to remove the accumulation. Id.
Finally, in Peabody, the judge found that only one miner was assigned to clean the area, and she
had other responsibilities. Id. at 1263. He concluded that this effort was not sufficient to
effectively remedy the cited accumulation, a finding which the Commission agreed supported his
determination that Peabody engaged in aggravated conduct. Id. Thus, substantial evidence amply
supports the judge=s finding that Cannelton engaged in aggravated conduct constituting an
unwarrantable failure.

    We also agree with the judge=s determination that Patterson and Richardson are liable

under section 110(c). The proper legal inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff=d on other grounds, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983). The majority does not dispute the judge=s finding that these
two foremen had actual knowledge of the accumulation, due to the preshift-onshift reports noting
such conditions, which they signed. Slip op. at 11. Foreman Richardson signed 35 reports at
issue and foreman Patterson signed 9 of those reports. Gov=t. Ex. 9. Despite determining that
these foremen had actual knowledge of a persistent accumulation, the majority incorrectly
remands the section 110(c) issue for further findings related to the foremen=s cleanup efforts.
Such a remand is unnecessary because the record is replete with references regarding their abject
failure to adequately eliminate the accumulation. Supra at 13-14. No cleanup efforts were
recorded in the examination books. Tr. 293-94. The inspector testified that he had no knowledge
of any attempts by them to clean up the accumulation. Tr. 100-02. The only evidence of
Patterson=s cleanup efforts is negligible, see supra at 14 n.3, and Richardson could not cite one
specific instance in which his miners cleaned up the relevant area. Tr. 298-99. Thus substantial
evidence supports the judge=s finding that these individuals knew of the violative condition and
failed to take effective steps to remedy condition. When substantial evidence supports a judge=s
finding, we are required under the Mine Act to affirm it. 30 U.S.C.
' 823(d)(2)(A)(ii)(I).5

    In Prabhu Deshetty, 16 FMSHRC 1046 (May 1994), the Commission found a general

mine foreman liable under section 110(c) under facts less egregious than those presented here.
There, for 8 working days, the foreman signed the belt examiner=s report, which had indicated that
the belt was dirty or needed cleaning, but took no steps to verify that the accumulations were
cleaned up. Id. at 1050-51. Similarly, Patterson and Richardson failed to take effective steps to
remedy the accumulation problem when they were made aware by the preshift reports, which they
signed, that the problem existed.

   5
       The majority has apparently overlooked the posture of this case as it stands before us C

the judge determined that the operator engaged in unwarrantable failure and that Patterson and
Richardson were liable under section 110(c). Accordingly, we have not invaded the province of
the judge as our colleagues suggest, but, in accordance with Mine Act section 113, have only
reviewed the record to see whether substantial evidence supports those determinations. Having
satisfied ourselves that substantial evidence supports the judge=s determinations, we vote to affirm
them.
Accordingly, we would affirm the judge=s determinations that the accumulation violation
was a result of unwarrantable failure, and that Patterson and Richardson are liable under section
110(c) for knowingly authorizing, ordering, and carrying out the violation.

                                         Mary Lu Jordan, Chairman

                                         Marc Lincoln Marks, Commissioner

Distribution

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

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

Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

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