<DOC>
[DOCID: f:pn9423co.wais]
CYPRUS EMERALD RESOURCES CORPORATION
March 3, 2000
PENN 94-23
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
March 3, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
:
v. : Docket Nos. PENN 94-23
: PENN 94-166
CYPRUS EMERALD RESOURCES :
CORPORATION :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
ORDER
BY THE COMMISSION:
In this civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), Cyprus Emerald Resources
Corporation ("Emerald") challenged the "significant and
substantial" ("S&S")[1] designation of a citation alleging a
violation of 30 C.F.R. � 50.11(b), which requires an operator to
investigate any mine accident. Among other grounds, Emerald
argued that because section 50.11(b) is not a mandatory health or
safety regulation, it could not be designated S&S, because the
Mine Act refers to S&S violations only of mandatory health or
safety standards. See 30 U.S.C.
� 814(d)(1), (e).
Administrative Law Judge William Fauver rejected that
argument, stating:
[T]he citation was issued under � 104(a), not
104(d). An allegation of a "significant and
substantial" violation in a � 104(a) citation
is an allegation of gravity, not an assertion
of jurisdiction to apply the sanctions of �
104(d). Accordingly, I do not reach the
issue whether the sanctions of � 104(d) apply
to a violation of Part 50.
17 FMSHRC 2086, 2099 (Nov. 1995) (ALJ). The judge found that,
with respect to the accident at issue, continuing operations
without investigating the accident could contribute significantly
and substantially to another accident with a risk of serious
injury, and that such an accident had occurred in case. Id.
Finding that the violation was also due to Emerald's high
negligence, and stating that he had taken into account all of the
civil penalty criteria set forth in section 110(i) of the Act, 30
U.S.C. � 820(i), the judge assessed a penalty of $3,000. Id. at
2099-2100.
On review of the judge's decision, the Commission, at the
request of the parties, reached the issue that the judge did not.
20 FMSHRC 790, 801 (Aug. 1998). After affirming the judge's
finding of a violation of section 50.11(b), a Commission majority
held that violations of non-mandatory health or safety standards
could be designated as S&S under sections 104(d) and 104(e) of
the Act. Id. at 798-809 (Chairman Jordan and Commissioner
Beatty), 822 (Commissioner Marks). That Commission majority also
affirmed the judge's finding that Emerald's violation of section
50.11(b) was S&S. Id. at 810, 822. Commissioners Riley and
Verheggen, in dissent, held that under the plain meaning of the
Mine Act, only violations of mandatory health and safety
standards could be designated as S&S. Id. at 826-30.
Emerald subsequently petitioned the United States Court of
Appeals for the District of Columbia Circuit for review of this
issue. The court held "that a `significant and substantial'
finding is permissible in a citation charging a violation of a
mandatory health and safety standard only[.]" Cyprus Emerald
Resources Corp. v. FMSHRC, 195 F.3d 42, 44 (D.C. Cir. 1999).
Accordingly, the court granted Emerald's petition, reversed the
Commission's S&S determination, and remanded the case to the
Commission for further action. Id. at 46.
Pursuant to the court's order, we modify Citation No.
3658696 to delete the S&S designation. We otherwise affirm the
citation and remand to the Chief Judge for reassignment and
assessment of an appropriate penalty based upon consideration of,
and findings regarding, all of the criteria in section 110(i) of
the Act.
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
Chairman Jordan and Commissioner Marks, dissenting:
We would modify the citation to delete the S&S designation,
but would otherwise affirm the citation and the judge's $3000
penalty assessment. While the court held that the violation at
issue could not be designated S&S under the terms of the Mine
Act, the factual findings that underlay the judge's S&S
determination were not disturbed, and were viewed by all
Commissioners as sufficient support for the judge's finding on
the gravity of the violation. See 20 FMSHRC at 810 (opinion of
Chairman Jordan and Commissioner Beatty), 822 (concurring opinion
of Commissioner Marks), 829-30 (opinion of Commissioners Riley
and Verheggen, dissenting on other grounds). Previously, the
Commission has held that a penalty need not necessarily be
reduced when a special finding is vacated. See Mechanicsville
Concrete, Inc., 18 FMSHRC 877, 881-82 (June 1996) (vacating
judge's S&S determination as beyond his authority, but
nevertheless affirming penalty based in part on high gravity
finding as supported by substantial evidence); Austin Powder Co.,
21 FMSHRC 18, 21 (Jan. 1999) (decision vacating judge's
unwarrantable failure determination as beyond his authority does
not necessarily require judge to find on remand lower level of
negligence or to reduce his earlier penalty assessment). In
these circumstances, therefore, there is no need to remand for a
reassessment of the penalty, and therefore, we respectfully
dissent.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
Distribution
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006
**FOOTNOTES**
[1] The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C. � 814(d)(1), which distinguishes as more
serious any violation that "could significantly and substantially
contribute to the cause and effect of a . . . mine safety or
health hazard."