Cyprus Tonopah Mining Corporation (ALJ decision, April 9, 1993)

Plain-English summary

The Commission remanded a ground-condition violation for penalty reassessment after finding that Cyprus Tonopah Mining's conduct was not an unwarrantable failure. Judge Michael A. Lasher, Jr. found that the operator was still negligent because it allowed work and travel in an area with hazardous ground conditions before corrective work was complete. After considering the reduced culpability and the other penalty factors, he lowered the penalty from $1,000 to $500.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3200
• Outcome: The remand penalty was reduced from $1,000 to $500.
• Key point: Removing an unwarrantable-failure finding can materially reduce a civil penalty even when negligence remains.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

April 9, 1993
CYPRUS TONOPAH MINING : CONTEST PROCEEDINGS
CORPORATION,
:
Contestant : Docket No. WEST 90-363-RM : Citation No. 3645243; 9/5/90
v. :
: Docket No. WEST 90-364-RM
: Citation No. 3459560; 9/5/90
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
REVIEW ADMINISTRATION : Cyprus Tonopah
(MSHA),
: Mine I.D. 26-02069
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : REVIEW ADMINISTRATION : Docket No. WEST 90-202-M
(MSHA),
: AO No. 26-02069-05507
Petitioner, :
:
v. :
:
CYPRUS TONOPAH MINING CORP.:
Respondent :

DECISION AFTER REMAND

Before: Judge Lasher

The Federal Mine Safety and Health Review Commission, in its Decision issued March 22, 1993, determined that the violation contained in Citation No. 3459560 did not, as I had previously held, result from Respondent's unwarrantable failure to comply with the pertinent safety standard and remanded the matter to me for recalculation of the penalty based on this change.

The penalty assessed in my original decision issued on Sep- tember 23, 1991, was $1,000.00. The basis for the Commission's determination that the violation was not the result of Respond- ent's unwarrantable failure is essentially set forth on page 11 of its decision.

We also find significant the fact that on the day of Inspector Ellis's inspection, Cyprus was in the process of constructing a

larger berm at the base of the west wall.
The Commission has previously recognized that an operator's pre-citation efforts in miti- gating a violative condition are relevant in reviewing an unwarrantable failure determina- tion. See, e.g., Utah Power and Light Co., 11 FMSHRC 1926, 1933 (October 1989).

Because Cyprus's conduct apparently resulted from a good faith, albeit mistaken, belief that its actions were in compliance with Section 56.3200, we conclude that substantial evidence does not support the Judge's finding that Cyprus's violation of 56.3200 was caused by its unwarrantable failure. See generally Utah Power and Light Co., 12 FMSHRC 965, 972 (May 1990).

It is found that Respondent was negligent, however, in permitting work and travel in the area where hazardous ground conditions existed until completion of the "corrective work" mentioned in the safety standard, i.e., the berm mentioned by the Commission was completed. See my Decision, fn. 22, 13 FMSHRC 1547.

Nevertheless, the elimination of the "unwarrantable failure" aspect of the violation stands in considerable mitigation of the culpability to be attributed and after consideration of this change and the other penalty assessment criteria previously as- certained, a penalty of $500 is found appropriate and is here assessed.

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:

R. Henry Moore, Esq., BUCHANAN INGERSOLL, 600 Grant Street, 58th Floor, Pittsburgh, PA 15219 (Certified Mail)

Colleen A. Geraghty, Esq., Office of the Solicitor, U.S. Depart- ment of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

ek
R. Henry Moore, Esq.
BUCHANAN INGERSOLL
58th Floor
600 Grant Street
Pittsburgh, PA 15219
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203