Cyprus Tonopah Mining Corporation

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