Buffalo Crushed Stone (ALJ decision, November 8, 1994)

Plain-English summary

Buffalo Crushed Stone faced five similar violations involving berms under 30 C.F.R. § 56.9301. After the Commission determined that the violations were significant and substantial, it sent the cases back for penalty reassessment. Judge Avram Weisberger found that each violation warranted a $136 penalty and ordered a total civil penalty of $430, reflecting the $86 increase over the original $50 penalty for each of the five citations. The order addressed the penalties after Commission review.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9301
• Outcome: The penalties were reassessed after the violations were characterized as significant and substantial, with a total penalty of $430 ordered.
• Key point: A Commission change to the S&S characterization can require the judge to reassess the civil penalties on remand.

Full text (FMSHRC public release)

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 92-117-M Petitioner : A. C. No. 30-00012-05516
v. :
: Docket No. YORK 92-128-M
BUFFALO CRUSHED STONE,
: A. C. No. 30-00012-05517
Respondent :

DECISION ON REMAND

Before: Judge Weisberger

On October 31, 1994, the Commission issued a decision in these cases, 16 FMSHRC ÄÄÄÄÄÄ, which reversed my determination that five similar violations of 30 C.F.R. 56.9301 were not significant and substantial. The decision contains the following directive "we remand for reassessment of civil penalties in light of our determination."

Considering the Commission's conclusion that the cited violations were significant and substantial, I find that these violations were of a high degree of gravity. I find that a penalty of $136 is appropriate for each of these violations. ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

1. Buffalo Crushed Stone, 15 FMSHRC 1641 (August 1993).

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ORDER

It is ORDERED that Respondent, within 30 days of this decision, shall pay a civil penalty of $430.

Avram Weisberger
Administrative Law Judge

Distribution:

James A. Magenheimer, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street, New York, NY 10014 (Certified Mail)

Susan E. Long, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

Mr. Salvatore Castro, Safety Director, Buffalo Crushed Stone, 2544 Clinton Street, P.O. Box 710, Buffalo, NY 14224 (Certified Mail)

/efw
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

2. The initial decision I issued on August 11, 1993, 15 FMSHRC,
   1641, supra ordered Respondent to pay a penalty of $820, which included a $50 penalty for each of the five citations which are the subject of this remanded decision. Hence, Respondent is presently ordered to pay a civil penalty of $86 for each of these citation, i.e., the difference between the original penalty of
   $50, and the present finding of a penalty of $136.