<DOC>
[DOCID: f:se98141c.wais]
CANTERA GREEN
May 25, 2000
SE 98-141-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
May 25, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 98-141-M
:
CANTERA GREEN :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
DECISION
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"), Administrative Law Judge Gary
Melick assessed civil penalties in amounts lower than those
proposed by the Secretary of Labor for a citation and orders
issued to Cantera Green ("Cantera") pursuant to section 104(d)(1)
of the Mine Act, 30 U.S.C. � 814(d)(1). 21 FMSHRC 310, 315-22
(Mar. 1999) (ALJ). The Commission granted the Secretary's
petition for discretionary review challenging the judge's penalty
assessments for the violations alleged in ten orders. For the
following reasons, we vacate the penalty determinations and
remand for reassessment.
Our decision in this matter is one of three decisions we are
issuing today regarding the Commission's penalty assessment
authority under section 110(i) of the Mine Act, 30 U.S.C.
� 820(i).[1]
I.
Factual and Procedural Background
On February 17, 1998, Inspector Alejandro Pe�a of the
Department of Labor's Mine Safety and Health Administration
("MSHA") conducted an inspection at the Cantera Green Mine, a
surface aggregate mine in Quebradilla County, Puerto Rico. 21
FMSHRC at 311; Tr. 13; S. Proposal for Assessment of Civ. Penalty
(Aug. 10, 1998), Ex. A. Inspector Pe�a issued a section
104(d)(1) citation and sixteen section 104(d)(1) orders for
violations of numerous mandatory health and safety standards at
the Cantera facility. 21 FMSHRC at 310; S. Exs. 1-20. He
determined that each violation was the result of Cantera's
unwarrantable failure to comply with the cited health or safety
standard[2] and that eleven of the violations were significant
and substantial ("S&S").[3] 21 FMSHRC at 310-22; S. Exs. 1-20.
On December 8, 1998, a hearing was held in Hato Rey, Puerto
Rico before Judge Melick. During the hearing, Cantera contested
both the violations and proposed penalty assessments with respect
to five orders and one citation and contested only the penalties
with respect to the remaining eleven orders. 21 FMSHRC at 310-
315; Tr. 5.
In assessing civil penalties for the violations found, the
judge summarized his findings regarding four of the statutory
penalty criteria[4] in a single footnote:
In assessing civil penalties in this case I have
also considered the small size of the operator (12
employees), that the violative conditions were
abated in good faith, that the operator had a
history of 18 violations within the previous two
years and that there was an absence of evidence
regarding the effect of the penalties on the
operator's ability to stay in business.
21 FMSHRC at 312 n.2. The judge considered negligence and
gravity criteria separately for each of the ten violations at
issue in this proceeding, determining that Cantera's negligence
and gravity were high for every violation based on the facts and
testimony presented at the hearing. Id. at 316-22. For nine of
the ten violations at issue, for which the Secretary had proposed
penalties ranging from $500 to $1,500, the judge assessed
penalties of $400. Id. at 316-18, 320-22. He also provided the
following additional discussion in assessing penalties for the
ten violations at issue in this proceeding:
Order No. 4545862 involved the failure to guard a pinch
point between a conveyor belt and tail pulley in violation of 30
C.F.R. � 56.14107(a). 21 FMSHRC at 315-16. While concluding
that the violation was of high gravity and the result of high
operator negligence, "[i]n particular consideration of the size
of the operator," the judge assessed a penalty of $400 for this
violation, rather than the $800 penalty proposed by the
Secretary. Id. at 316.; S. Br. at 2.
Order No. 4545863 involved the operation of a front-end
loader without a functioning backup alarm in violation of 30
C.F.R. � 56.14132(a). 21 FMSHRC at 316-17. After finding high
gravity and high negligence, the judge concluded that a penalty
of $400 was appropriate "[b]ecause of the size of the operator
and lack of a recent history of similar violations." Id. at 316.
The Secretary had proposed a penalty of $1,500 for this
violation. S. Br. at 2.
Order No. 4545864 charged that Cantera operated the same
front-end loader without a functioning parking brake in violation
of 30 C.F.R. � 56.14101(a). 21 FMSHRC at 317. Noting Cantera's
claim that no similar violation had occurred in ten years, the
judge explained: "Considering the size of the operator and the
absence of a recent history of prior violations of this standard,
I find that a civil penalty of $400.00, is appropriate." Id.
The Secretary had proposed a penalty of $1,000. S. Br. at 2.
Order No. 4545865 involved Cantera's failure to perform
examinations of working places on each shift as required by 30
C.F.R. � 56.18002. 21 FMSHRC at 317-18. The judge stated that,
"[p]articularly in light of the absence of a recent history of
similar violations and the size of the operator," a penalty of
$1,500 was appropriate. Id. at 318. The Secretary proposed a
penalty of $2,500 for this violation. S. Br. at 2.
Order No. 7795305 charged that the plant motor feeder at
Cantera's Green Mine did not have a safe means of access as
required by 30 C.F.R. � 56.11001. 21 FMSHRC at 318. The judge
found high gravity and high negligence, noting there was
undisputed evidence that Cantera's owner knew of this condition
for two or three weeks. Id. Without further explanation, he
concluded that a civil penalty of $400 was warranted, rather than
the $1,000 penalty proposed by the Secretary. Id.; S. Br. at 2.
Order No. 7795308 charged that the fan and motor belts of
the primary crusher were not guarded in accordance with 30 C.F.R.
� 56.14107(a). 21 FMSHRC at 319-20. After finding that the
violation was of high gravity and the result of high negligence,
the judge stated: "Considering the criteria under Section 110(i)
of the Act, I find that a civil penalty of $400.00, is
appropriate." Id. at 320. The Secretary had proposed a penalty
of $800 for this violation. S. Br. at 2.
Order No. 7795312 involved the lack of a cover plate for an
electrical junction box in violation of 30 C.F.R. � 56.12032. 21
FMSHRC at 320. The judge stated that "[c]onsidering the criteria
under Section 110(i) of the Act, an appropriate civil penalty of
$400.00 will be assessed." Id. The Secretary had proposed a
penalty of $600. S. Br. at 2.
Order No. 7795313 involved a violation of 30 C.F.R.
� 56.14107(a), based upon the lack of a guard for a conveyor belt
tail pulley. 21 FMSHRC at 320-21. After finding high gravity
and high negligence, the judge, without any further explanation,
assessed a penalty of $400; the Secretary had proposed a penalty
of $500. Id. at 321; S. Br. at 2.
Order No. 7795314 involved another violation of 30 C.F.R.
� 56.14107(a) for failing to provide a guard for another conveyor
belt tail pulley. 21 FMSHRC at 321. After finding high gravity
and high negligence, the judge, without any further explanation,
again assessed a penalty of $400 for this violation, rather than
the $500 proposed by the Secretary. Id.; S. Br. at 2.
Order No. 7795315 charged that there was no cover plate on
an electrical junction box on a conveyor motor in violation of 30
C.F.R. � 56.12032. 21 FMSHRC at 321-22. After finding that the
violation posed a serious hazard and was the result of high
negligence, the judge, without any additional explanation,
assessed a penalty of $400; the Secretary had proposed a penalty
of $600. Id.; S. Br. at 2.
The Secretary filed a petition for discretionary review
challenging only the judge's penalty assessments for these ten
violations. S. PDR at 1.
II.
Disposition
The Secretary argues that the judge abused his discretion
when he assessed the ten civil penalties at issue. First, the
Secretary argues that when the judge assessed the civil penalties
for these violations, he assessed penalties widely divergent from
those proposed by the Secretary without providing an adequate
explanation. S. Br. at 8, 10-12. Second, the Secretary asserts
that the judge "appeared to pick and choose" which of the
criteria besides gravity and negligence were relevant for the
purpose of justifying his lower penalty assessment. Id. at 8.
The Secretary asserts that while the judge made general findings
on four of the criteria in a footnote, there is no indication
that the judge applied those findings in determining the
appropriate penalty for each of the violations. Id. at 13. The
Secretary also submits that if, in fact, the judge did apply the
findings in his footnote to each of the violations, he committed
error by applying some of the statutory criteria twice. Id. at
13 n.4. Third, the Secretary contends that the judge erred when
he relied on the operator's lack of recent history of similar
violations as opposed to the operator's entire violation history
over the previous two years. Id. at 15. Finally, the Secretary
argues that the judge assessed penalties which were inconsistent
with the findings he did make since he assessed penalties in
amounts lower than those proposed by the Secretary despite
findings of high gravity and negligence. Id. at 15-17. The
Secretary requests that the Commission vacate the judge's civil
penalty assessments and remand the case for reassessment and
further findings on the penalty criteria. Id. at 17.
Cantera argues that the judge's decision was correct,
adequately explained, consistent with the judge's own factual
findings, and also complied with the six statutory penalty
criteria. C.G. Br. at 1. Cantera argues that since "neither the
judge nor the Commission shall be bound by a penalty proposed by
the Secretary," the judge's penalties should be considered proper
and adequate. Id. Cantera states that it rests on the record to
support its argument and requests that the Commission affirm the
civil penalty assessments. Id. at 1-2.
A. General Legal Principles
As a general rule, Commission judges are accorded broad
discretion in assessing civil penalties under the Mine Act.
Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). We have
held, however, that such discretion is not unbounded and must
reflect proper consideration of the penalty criteria set forth in
section 110(i) and the deterrent purpose of the Act. Id. (citing
Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), aff'd,
736 F.2d 1147 (7th Cir. 1984)). In Sellersburg, we stated
unequivocally that "[w]hen an operator contests the Secretary's
proposed assessment of penalty, thereby obtaining the opportunity
for a hearing before the Commission, findings of fact on the
statutory penalty criteria must be made." Id. at 292 (emphasis
added). In addition, our Procedural Rules also make this duty
clear. Rule 30(a) provides:
In assessing a penalty the Judge shall determine the
amount of penalty in accordance with the six statutory
criteria contained in section 110(i) . . . and incorporate
such determination in a written decision. The decision
shall contain findings of fact and conclusions of law
on each of the statutory criteria and an order requiring
that the penalty be paid.
29 C.F.R. � 2700.30(a) (emphasis added).
Despite the Commission's clear mandate in Sellersburg and in
its Procedural Rules, we have often found it necessary to remand
cases for penalty assessment where judges have failed to enter
the requisite findings. See, e.g., Secretary of Labor on behalf
of Hyles v. All American Asphalt, 21 FMSHRC 119, 142 (Feb. 1999);
Rock of Ages Corp., 20 FMSHRC 106, 126 (Feb. 1998), aff'd in
part, 170 F.3d 148 (2d Cir. 1999); Secretary of Labor on behalf
of Glover v. Consolidation Coal Co., 19 FMSHRC 1529, 1539 (Sept.
1997); Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1518
(Sept. 1997); Thunder Basin Coal Co., 19 FMSHRC 1495, 1502-06
(Sept. 1997). Because this case and its companion cases, Hubb
Corp. and Douglas R. Rushford Trucking, present further examples
of this trend, we believe it is necessary to reiterate the
significance of our holding in Sellersburg.
As we emphasize in our decisions in Hubb Corporation, 22
FMSHRC ___, Docket No. KENT 97-302, slip op. at 7 (May 2000), and
Douglas R. Rushford Trucking, 22 FMSHRC ___, Docket No. YORK 99-
39-M, slip op. at 4 (May 2000), the requirement that our judges
make findings of fact on each of the section 110(i) penalty
criteria serves two important and distinct purposes. First,
these findings provide the respondent and the regulated community
with the appropriate notice as to the basis upon which the
penalty is being assessed. Sellersburg, 5 FMSHRC at 292.
Second, findings of fact on the section 110(i) penalty criteria
supply the Commission and any reviewing court with the
information needed to accurately determine if the penalties
assessed by the judge are appropriate, excessive, or perhaps
insufficient. Id. at 292-93. This is consistent with the
broader requirement that "`[a] judge must analyze and weigh the
relevant testimony of record, make appropriate findings, and
explain the reasons for his decision.'" Hubb, 22 FMSHRC at ___,
slip op. at 7, (quoting Mid-Continent Resources, Inc., 16 FMSHRC
1218, 1222 (June 1994)). See also Anaconda Co., 3 FMSHRC 299,
299-300 (Feb. 1981) ("Our function is essentially one of review.
Without findings of fact and some justification for the
conclusions reached by the judge, we cannot perform that function
effectively.").
As a unanimous Commission stated in Sellersburg:
When . . . it is determined that penalties are appropriate
which substantially diverge from those originally proposed,
it behooves the Commission and its judges to provide a
sufficient explanation of the bases underlying the penal-
ties assessed by the Commission. If a sufficient expla-
nation for the divergence is not provided, the credi-
bility of the administrative scheme providing for the
increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness.
5 FMSHRC at 293. See also Unique Electric, 20 FMSHRC 1119, 1123 &
n.4 (Oct. 1998) (concluding that judge failed to explain the wide
divergence between the penalty of $400 assessed and the
Secretary's proposed penalties of $8,500); Thunder Basin, 19
FMSHRC at 1504 (concluding that judge failed to provide adequate
explanation for 95% reduction in penalty assessed); Dolese Bros.
Co., 16 FMSHRC 689, 695 (Apr. 1994) (finding that the judge was
required to explain a 60% increase in his civil penalty
assessment). While the findings and explanations relating to a
penalty assessment do not have to be exhaustive, they must at
least provide the Commission with a basis for determining whether
the judge complied with the requirement to consider and make
findings concerning the section 110(i) penalty criteria.
B. The Judge's Penalty Assessments
Although the judge in this case did make some findings
concerning the section 110(i) penalty criteria, he failed to
provide an adequate explanation of how these findings contributed
to his penalty assessments. The judge made brief findings and
conclusions on four statutory criteria (history of violations,
operator size, effect on the ability to continue in business, and
good faith compliance) in a footnote and analyzed the remaining
two criteria (gravity and negligence) for each violation
individually. 21 FMSHRC at 312 n.2, 316-22. However, the judge
failed to explain how these findings related to the penalties
assessed and, for certain violations, appears to have placed
particular reliance on some penalty criteria without indicating
if he considered others. This lack of a clear explanation for
the assessed penalties takes on additional significance because
the penalties assessed for ten violations, totaling $5,100,
deviated substantially from the $9,800 in penalties proposed by
the Secretary.
The judge in this case assessed significantly lower
penalties for the ten violations at issue despite concluding that
the record supported a finding of high negligence and high
gravity for these violations. Id. at 316-22. Because the
Commission and its judges are required to assess penalties de
novo (Sellersburg, 5 FMSHRC at 291), a finding that Cantera's
negligence and gravity were as great or even greater than the
Secretary originally alleged does not preclude the judge from
assessing lower penalties based on consideration of the other
statutory criteria and the evidence adduced during the
adjudicative process. As the Commission has recognized, "there
is no requirement that equal weight must be assigned to each of
the penalty assessment criteria." Thunder Basin, 19 FMSHRC at
1503. As discussed above, however, the Commission has also
consistently held that adequate "[f]indings are critical if the
judge is assessing a penalty that differs significantly from that
proposed by the Secretary." Dolese, 16 FMSHRC at 695; see also
Sellersburg, 5 FMSHRC at 293 (concluding that the judge failed to
explain the wide divergence between the penalties assessed and
the penalties proposed by the Secretary).
Here, although the judge found high gravity and negligence,
the amount he assessed for the ten violations only ranged from
approximately 20% to 70% of the penalties proposed by the
Secretary. For six of these violations, the judge offered no
explanation for this divergence outside of the footnote setting
forth his general findings with respect to the four criteria.[5]
For the other four orders at issue herein, the judge again
referred to certain criteria which he had already discussed in
the footnote.[6] Even as to these violations, however, the judge
did not explain why he considered these selected criteria to be
particularly relevant to these violations, but apparently not
the others, nor why they warranted significant reductions in
the penalty proposed by the Secretary. Thus, while the judge
technically complied with Sellersburg by discussing four of
the criteria in an opening footnote, and the remaining two
criteria (gravity and negligence) in his discussion of each
separate violation, he failed to provide an adequate explanation
of the basis for his penalty assessments to permit meaningful
review by this Commission.
We discuss below certain additional ambiguities and
deficiences in the judge's decision with respect to particular
penalty criteria[7] and the penalty amounts assessed, that
provide further grounds for vacating the judge's penalty
determinations and remanding for reassessment.
1. History of Violations
As noted above, for three of the violations at issue (Order
Nos. 4545863, 4545864, and 4545865), the judge relied on the
operator's lack of a recent history of similar violations when he
assessed penalties that were significantly less than those
proposed by the Secretary. 21 FMSHRC at 317-18. The only other
discussion of Cantera's history of violations was in the footnote
where the judge found that "the operator had a history of 18
violations within the previous two years." Id. at 312 n.2.
The Commission has recognized that "the language of section
110(i) does not limit the scope of history of previous violations
to similar cases." Secretary of Labor on behalf of Johnson v.
Jim Walter Resources, Inc., 18 FMSHRC 552, 557 (Apr. 1996). The
Commission has explained that "section 110(i) requires the judge
to consider the operator's general history of previous violations
as a separate component when assessing a civil penalty. Past
violations of all safety and health standards are considered for
this component." Peabody Coal Co., 14 FMSHRC 1258, 1264 (Aug.
1992) (emphasis added); see also Glover, 19 FMSHRC at 1539
(remanding to the judge with instructions to consider the
operator's general history of violations, not only its prior
section 105(c) violations).
The judge made a finding concerning Cantera's entire history
of previous violations, noting that it had a history of 18
violations over the past two years. That finding, and the
impact it played in the penalty assessments, is difficult to
review, however, because the judge failed to evaluate whether
that history was high, moderate, or low. See Secretary of
Labor on behalf of Hannah v. Consolidation Coal Co., 20
FMSHRC 1293, 1305 n.14 (Dec. 1998) (noting that, in the
absence of a qualitative allegation, "bare" information
regarding the number of previous violations is of limited use).
It was not necessarily erroneous for the judge to consider
the operator's lack of recent similar violations with respect to
three violations. The Commission has found that a history of
similar violations may be relevant in considering an operator's
negligence for purposes of setting a penalty. A history of
similar violations may demonstrate that the operator had prior
knowledge of the specific safety or health standard cited. The
Commission has explained that problems in the cited area noted
several times in examination books may demonstrate prior notice
that a problem existed in the cited area and that greater efforts
were necessary to ensure compliance. Peabody, 14 FMSHRC at 1262.
In Peabody, the Commission rejected the operator's argument that
the judge improperly considered the history of violations twice -
once when considering the general history criterion and a second
time in consideration of the negligence criterion - explaining
that such consideration was not improper or duplicative because
the purpose of the two criteria are different. Id. at 1264.
We conclude, however, that the judge erred by failing to set
forth his rationale for considering the operator's lack of recent
similar violations in certain instances, or to explain how that
analysis impacted on his penalty assessments.[8] Without such an
explanation, it is not clear whether, for the three orders in
which it was discussed, the judge considered similar violations
to the exclusion of all violations, or whether the judge made the
consideration in conjunction with his negligence finding. In
addition, the judge offered no explanation for his failure to
consider the history of recent similar violations for the other
seven disputed penalties. Such problems in the judge's analysis
of Cantera's history of prior violations constitute additional
grounds for vacating his penalty assessments, and require further
explanation and findings by the judge on remand.
2. Operator Size
Although the operator's size was a constant factor for all
violations, and was discussed briefly in a footnote, the judge
appears to have relied upon the operator's small size in lowering
the penalty assessed for only four of the ten disputed penalties.
The judge did not provide any explanation why the operator's size
should mitigate the penalties only for Order Nos. 4545862,
4545863, 4545864, and 4545865, or whether he also considered that
factor in lowering the penalty assessed for the other six
disputed penalties. Without an adequate explanation by the judge
regarding his separate consideration of the operator's size, the
Commission does not have the necessary foundation to determine
whether the judge abused his discretion in his consideration of
this criterion. See Sellersburg, 5 FMSHRC at 292-93. This
ambiguity provides yet another reason for vacating the judge's
penalty assessments and remanding them for further consideration
and findings.
3. Negligence
The judge made findings of high negligence in his separate
discussion of each of the ten violations at issue herein. 21
FMSHRC at 316-22. In addition, as discussed above, for three of
the violations at issue, the judge noted the operator's lack of a
recent history of similar violations in assessing penalties - a
factor that the Commission has held may be relevant in evaluating
an operator's negligence. However, the judge did not relate
these findings regarding the lack of history of previous similar
violations to his findings on negligence, or explain how they
influenced the amount of the penalties assessed. This is another
ambiguity in the judge's penalty assessments that warrants
further consideration on remand.
4. Operator's Ability to Continue in Business
In a footnote, the judge concluded that there was "an
absence of evidence regarding the effect of the penalties on the
operator's ability to stay in business." Id. at 312 n.2. Under
Commission law, such a finding provides a basis for a presumption
that the penalties proposed would not have a detrimental affect
on the operator. See Sellersburg, 5 FMSHRC at 294. In his
decision, however, the judge never confirmed that he applied this
presumption or explained how this factor influenced the penalties
that he assessed.
5. Good Faith in Achieving Compliance
The judge also found in a footnote, without any further
explanation, that all of the violative conditions "were abated in
good faith." 21 FMSHRC at 312 n.2. While it thus appears that
the judge complied with the requirement to make a finding
concerning this criterion, he once again failed to explain the
basis for this finding and how it influenced the amounts of the
penalties he assessed.
6. Penalty Amounts
For nine of the violations at issue, the judge assessed
penalties of $400 although the Secretary had proposed penalties
ranging from $500 to $1,500. 21 FMSHRC at 316-18, 320-22; S. Br.
at 2. For the remaining violation (Order No. 4545865), involving
the operator's failure to examine the working places on each
shift, the judge reduced the $2,500 penalty proposed by the
Secretary to $1,500. 21 FMSHRC at 318; S. Br. at 2. Thus, the
extent of the reduction in the penalties assessed by the judge
ranged from over 70% to 20%. With the exception of a few brief
references to the operator's small size and lack of recent
history of similar violations, however, the judge never fully
explained why greater reductions were warranted with respect to
certain violations than to others. Nor did the judge offer any
logic for selecting a penalty amount of $400 for nine violations,
and $1,500 for the remaining disputed violation.
On the basis of the foregoing, we conclude that the judge
failed to adequately explain the basis for the penalties he
assessed for the violations at issue herein. We vacate the
penalty assessments and remand with instructions to the judge to
provide a reasoned explanation of the basis for the penalties
assessed. See Jim Walter Resources, Inc., 19 FMSHRC 498, 501
(Mar. 1997) (remanding to the judge where he failed to indicate
how or whether his findings and conclusions regarding abatement
related to his penalty assessments); Dolese, 16 FMSHRC at 695-96
(remanding to the judge where he failed to enter findings on four
of the penalty criteria or explain the significant divergence of
the penalty assessed from the Secretary's proposed penalty
assessment). On remand, the judge must provide a clearer
explanation of his basis for reducing the amount of the penalties
proposed by the Secretary and his determination of particular
penalty amounts for each of the violations at issue here.
**FOOTNOTES**
[1] The other decisions concerning Commission penalty
assessments we are issuing today are Hubb Corp., Docket No. KENT
97-302, and Douglas R. Rushford Trucking, Docket No. YORK 99-39-
M.
[2] At the hearing, the Secretary deleted the unwarrant-
able failure designation of one violation not at issue in this
proceeding. 21 FMSHRC at 310.
[3] The S&S and unwarrantable failure terminology is taken
from section 104(d)(1) of the Act, 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," and establishes more severe sanctions for any
violation that is caused by "an unwarrantable failure of [an]
operator to comply with . . . mandatory health or safety
standards." 30 U.S.C. � 814(d)(1).
[4] Section 110(i) sets forth six criteria to be consid-
ered 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 negli-
gent, [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.
30 U.S.C. � 820(i).
[5] Aside from separately considering gravity and
negligence, the judge stated generally with respect to two of the
violations (Order Nos. 7795308, 7795312), that he was
"considering the criteria under section 110(i)," and with regard
to two other violations (Order Nos. 779314, 779315), that they
were "affirmed as written." 21 FMSHRC at 319-20, 321-22. For
two other violations (Order Nos. 7795305, 7795313), the judge,
after finding high gravity and negligence, provided no further
explanation for the penalties assessed. Id. at 318, 321.
[6] For Order Nos. 4545862, 4545863, 4545864, and 4545865,
the judge relied on Cantera's small size in assessing a lower
penalty than that proposed by the Secretary. 21 FMSHRC at 316-
18. For three of those four orders, the judge also separately
relied on the operator's lack of recent history of similar
violations as justification for the reduced assessments. Id. at
317-18.
[7] We conclude that the judge's analysis and findings
concerning the gravity criterion with respect to the ten
violations was adequate, and therefore do not further discuss his
consideration of that factor.
[8] It also appears that the judge erred in determining
that there was no history of a prior violation of the standard
cited in Order No. 4545865. 21 FMSHRC at 318. At the hearing,
the Secretary submitted a copy of a citation issued to Cantera on
April 9, 1997 for a violation of the same standard. Jt. Ex. 2,
at 7.
III.
Conclusion
For the foregoing reasons, we vacate the penalty assessments
for Order Nos. 4545862, 4545863, 4545864, 4545865, 7795305,
7795308, 779312, 7795313, 7795314, and 7795315, and remand for
reassessment of an appropriate penalty for each violation
consistent with this decision.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Commissioner
Distribution
Tina Perruzzi, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
Edgardo R. Jimenez Calderin, Esq., Jimenez, Calderin Law Offices,
P.O. Box 8765, Fdez. Juncos Station, San Juan, PR 00910-0765
Administrative Law Judge Gary Melick, Federal Mine Safety &
Health Review Commission, Office of Administrative Law Judges,
5203 Leesburg Pike, Suite 1000, Falls Church, VA 22041