<DOC>
[DOCID: f:quarry.wais]
CHRISTMAN QUARRY
May 14, 1997
LAKE 96-137-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 14, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 96-137-M
:
CHRISTMAN QUARRY :
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
Commissioners
ORDER
BY THE COMMISSION:
Counsel for the Secretary of Labor has filed an unopposed
motion to dismiss this proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act"). For the reason that follows, we grant
the motion.
On March 7, 1996, an inspector from the Department of
Labor's Mine Safety and Health Administration ("MSHA")
issued to Christman Quarry ("Christman") a citation
alleging a violation of 30 C.F.R. � 56.14207.
Christman contested the citation and the matter
proceeded to hearing before Administrative Law Judge
Gary Melick. Judge Melick determined that Christman
violated the standard, affirmed the citation, and
assessed a $1 civil penalty. 18 FMSHRC 2151, 2154
(December 1996) (ALJ). The Commission subsequently
granted Christman's petition for discretionary review,
challenging the judge's decision.
On May 6, 1997, the Commission received the Secretary's
Motion to Dismiss Petition for Discretionary Review as
Moot. The Secretary stated that, after reviewing the
record in this case, the Secretary vacated the
underlying citation on May 5, 1997. Mot. at 1. The
Secretary attached a copy of the vacated citation to
her motion. The Secretary also represented that
counsel for Christman has no obligation to the
dismissal of this matter. Id. at 2.
The Commission has "responsibility under the Mine Act . . .
to ensure that a contested case is terminated . . . in
accordance with the Act." Youghiogheny & Ohio Coal
Co., 7 FMSHRC 200, 203 (February 1985). A motion by
the Secretary to dismiss a review proceeding in which
she has vacated an underlying citation will ordinarily
be granted if "adequate reason" to do so are present.
See C.W. Mining Co., 15 FMSHRC 773, 774 (May 1993). We
conclude that adequate reasons exist in this case. The
Secretary, as prosecutor charged with enforcing the
Mine Act, determined that she should vacate the
citation and seek to dismiss this appeal. The operator
does not object to the Secretary's motion.
For the foregoing reasons, the Secretary's dismissed motion
is granted.[1] Accordingly, the Commission's direction
for review is vacated, as is that part of the judge's
decision wherein he affirmed the citation, and this
civil penalty proceeding is dismissed.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[1]: Commissioner Marks voted to deny the motion to
dismiss. He concludes that review of the motion and the attached
vacation of citation, which is based upon "prosecutorial
discretion," fails to establish "adequate reasons" for the
requested dismissal. Commissioner Marks notes that in this case
the Secretary prevailed in establishing that a violation
occurred. Because of the brevity of the motion, it is unclear
whether the Commission is to conclude from the motion that the
Secretary now believes that no violation occurred, or whether the
Secretary is advising the Commission that, notwithstanding the
existence of a violation, the Secretary has the authority to
abandon her prosecutorial duty. Commissioner Marks submits that,
in either case, the Secretary should be required to furnish more
support for the motion.