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[DOCID: f:ws200035f.wais]

 
UNITED METRO MATERIALS
WEST 2000-35-RM
February 19, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                        February 19, 2002

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
     v.                         : Docket Nos. WEST 2000-35-RM
                                :             WEST 2000-36-RM
                                :             WEST 2000-180-M
UNITED METRO MATERIALS          :


BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners


                              ORDER


BY: Verheggen, Chairman, and Beatty, Commissioner

     The Secretary of Labor has filed a motion to vacate the
direction for review in which United Metro Materials joins. The
Secretary states that she has vacated the citations in the above-
captioned proceeding and that she will not enforce the citations.
In light of the representations made in the joint motion, the
Commission grants the motion and vacates the direction for
review.


                             Theodore F. Verheggen, Chairman

                             Robert H. Beatty, Jr., Commissioner


Commissioner Jordan, concurring:

     This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act"). In 
August 1999, a laborer working at a plant operated by United
Metro was fatally injured after he was caught in a conveyor belt
roller while attempting to clear it with a hoe. 23 FMSHRC 1085, 
1086. (Sept. 2001) (ALJ). After investigating the accident, MSHA 
cited the operator for violations of several regulations.  One 
citation charged the operator with a failure to adequately guard 
the return roller, in violation of 30 C.F.R. � 56.14107(a). The 
second citation alleged a failure to shut off the conveyor prior 
to cleaning the rollers, as required by 30 C.F.R. � 56.14202.  
Id. at 1086; Narrative Findings for a Special Assessment.  
Fourteen months later the Secretary proposed a penalty of 
$40,000 for the first citation and $35,000 for the second.  
23 FMSHRC at 1086-1087.  The operator contested these citations 
and the proposed penalties.

     In an order dated September 28, 2001, Judge Cetti dismissed
the proceedings.  23 FMSHRC at 1089.  Relying on section 105(a)
of the Act,[1] the judge concluded that the Secretary had failed
to notify the operator of the civil penalty proposed within a
reasonable time after the termination of  the investigation that
resulted in the issuance of the citations.  Id.  By order dated
October 26, 2001, the Commission, on its own motion, directed
review of the judge's decision.  The Secretary has notified the
Commission that the citations under review were vacated on
November 8, 2001 and she now moves the Commission to dismiss
these proceedings as moot. Sec'y Notice of Vacating of Citations
and Motion to Vacate the Direction for Review at 1-2.  United
Metro Materials joins in this motion.  United Metro Letter of
November 14, 2001.

     The Commission initially ordered review of this matter
because the judge's decision raised significant legal and policy
issues.  Although the Secretary's actions raised eyebrows, I
nevertheless conclude that this proceeding must now be dismissed
as moot.

     The Supreme Court in Cuyahoga Valley Railway Co. v. United
Transportation Union, 474 U.S. 3, 7-8 (1985) (per curiam) held
that the Secretary's decision to withdraw a citation against an
employer under the Occupational Safety and Health Act was not
reviewable by the Occupational Safety and Health Review
Commission.  The Court pointed out that allowing the Commission
to overturn the Secretary's decision to withdraw a citation would
amount to allowing the Commission "to make both prosecutorial
decisions and to serve as the adjudicator of the dispute, a
commingling of roles that Congress did not intend." 474 U.S. at
7.  Following Cuyahoga, this Commission in RBK Construction Inc.,
15 FMSHRC 2099, 2101 (Oct. 1993), concluded that it lacked the
authority to overturn a Secretarial decision to withdraw or
vacate a citation.

     Accordingly, in light of the Secretary's vacation of the
citations at issue, I join the majority in vacating our direction
for review and dismissing these proceedings.


                                        Mary Lu Jordan, Commissioner


Distribution

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

James A. Lastowka, Esq.
Arthur G. Sapper, Esq.
McDermott, Will & Emery
600 13th Street, N.W.
Washington, D.C.  20005

Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204


**FOOTNOTES**

     [1]:  Section 105(a) provides:

          If, after an inspection or investigation, the
          Secretary  issues  a  citation or order under
          section 104, he shall,  within  a  reasonable
          time after the termination of such inspection
          or  investigation,  notify  the  operator  by
          certified mail of the civil penalty  proposed
          to  be assessed under section 110(a) for  the
          violation  cited and that the operator has 30
          days within  which  to  notify  the Secretary
          that  he  wishes  to contest the citation  or
          proposed assessment of penalty.

30 U.S.C. � 815(a).