Kem Coal Incorporated

Plain-English summary

This civil penalty proceeding involved four alleged violations of mandatory safety standards at Kem Coal's No. 2 Surface Mine. The parties settled three citations for $655, $595, and $595, and agreed that a fourth citation involving an inaudible backup alarm should be vacated because the vehicle was not required to have that alarm. Judge David F. Barbour found the settlement reasonable and in the public interest, approved it, ordered payment of $1,845, and ordered Citation No. 3216042 vacated. The proceeding was to be dismissed after payment.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1000, 77.1001, 77.1605(u), and 77.410(a)
• Outcome: Three citations were resolved through settlement payments totaling $1,845, one citation was vacated, and the case was to be dismissed after payment.
• Key point: The ALJ approved a settlement supported by the statutory penalty criteria and vacated a citation where the cited vehicle was not required to have the alleged safety equipment.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. KEM COAL INC.
DDATE:
19930519
TTEXT:

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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. KENT 92-611
Petitioner : A.C. No. 15-12209-03538
:
: No. 2 Surface Mine
V. :
:
KEM COAL INCORPORATED, :
Respondent :

                DECISION APPROVING SETTLEMENT

Before: Judge Barbour

                 Statement of the Proceeding

 This proceeding concerns proposals for assessment of civil

penalties filed by the Petitioner against the Respondent pursuant
to Section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking civil penalty assessments for
four alleged violations of certain mandatory safety standards
found in Part 77, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer denying the alleged violations,
and the case was docketed for hearing on the merits.

 The parties now have decided to settle the matter,

and they have filed a motion pursuant to Commission Rule 30,
29 C.F.R. 2700.30, seeking approval of the proposed settlement.
The citations, initial assessments, and the proposed settlement
amounts are as follows:

                         30 C.F.R.

Citation No. Date Section Assessment Settlement
3216278 01/28/92 77.1000 $1300 $655
3216179 03/10/92 77.1001 $ 595 $595
3216041 03/11/92 77.1605(u) $ 595 $595
3216042 03/11/92 77.410(a) $ 595 $-0-

 In support of the proposed settlement disposition of this

case, the parties have submitted information pertaining to the
six statutory civil penalty criteria found in Section 110(i) of
the Act, included information regarding Respondent's size,
ability to continue in business and history of previous
violations.

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In particular, with regard to Citation No. 3216278, the
parties note that the violation was caused by "differing, but
equally valid interpretations of the ground control plan"
and that had the violation been regularly assessed the proposed
penalty would have been $655. Joint Motion To Approve
Settlement 3. With regard to Citations No. 3216179 and 3216041,
the parties note that Respondent has agreed to pay in full the
proposed civil penalty. Finally, with regard to Citation
No. 3216042, the parties agree that the vehicle cited for an
inaudible backup alarm was not the type of truck required to have
such an alarm and that the citation should be vacated.

                       CONCLUSION

 After review and consideration of the pleadings, arguments,

and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the suggested
reduction in the penalties assessed for the subject violations is
warranted and that the proposed settlement disposition is
reasonable and in the public interest. Pursuant to 29 C.F.R.
2700.30, the motion IS GRANTED, and the settlement is APPROVED

                          ORDER

 Respondent IS ORDERED to pay civil penalties in the

settlement amounts shown above in satisfaction of the violations
in question. Further, the Secretary IS ORDERED to vacate
Citation No. 3216042. Payment is to be made to MSHA within
thirty (30) days of the date of this proceeding and upon receipt
of payment, this proceeding is DISMISSED.

                          David F. Barbour
                          Administrative Law Judge
                          (703)756-5232

Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)

Edward H. Adair, Esq., Reece, Lang & Breeding, PSC, 400 South
Main Street, P.O. Drawer 5087, London, KY 40745-5087 (Certified Mail)

/epy