Kem Coal Incorporated (ALJ decision, May 19, 1993)

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