KYN Coal Company Incorporated, et al. (ALJ decision, October 4, 1994)

Plain-English summary

The ALJ considered a group of respirable-dust citation proceedings involving several coal operators. Some cases had been stayed pending related Commission proceedings concerning altered respirable-dust samples and expert testimony. The Secretary asked to lift some stays and leave other cases unstayed, but the operators had not yet been heard. The chief ALJ ordered the operators to submit their views on whether the cases should remain stayed within 30 days.

Decision snapshot

• Cited standard(s): None stated in this order.
• Outcome: The operators were ordered to submit their views on whether the proceedings should be stayed.
• Key point: The ALJ deferred a stay decision until the affected operators provided their positions.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. KYN COAL CO.
DDATE:
19941004
TTEXT:

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SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-294 Petitioner : A. C. No. 15-17134-03514 :
v. : No. 4 Mine
KYN COAL COMPANY
:
INCORPORATED,
:
Respondent :
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-324 Petitioner : A. C. No. 15-17143-03501 KJS :
v. : No. 4 Mine
ENVIRONMENTAL MINE SERVICES, :
Respondent :
: Docket No. VA 94-32
: A. C. No. 44-06596-03501 KJS
:
: Docket No. VA 94-33
: A. C. No. 44-06395-03502 KJS
:
: No. 2 Mine
:
: Docket No. VA 94-34
: A. C. No. 44-06210-03501 KJS
:
: No. 9 Mine
:
: Docket No. VA 94-37
: A. C. No. 44-04703-03501 KJS
:
: No. 1 Mine
:
: Docket No. VA 94-38
: A. C. No. 44-03465-03501 KJS
:
: No. 3 Mine
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-27 Petitioner : A. C. No. 44-03465-03534 :
v. : No. 3 Mine
C & S COAL COMPANY,
:
Respondent :

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SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-28 Petitioner : A. C. No. 44-06210-03527 :
: No. 9 Mine
v. :
EASTERN COAL COMPANY, :
Respondent :
:
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-29 Petitioner : A. C. No. 44-06395-03569 :
: No. 2 Mine
v. :
BRENT COAL CORPORATION, :
Respondent :
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-30 Petitioner : A. C. No. 44-06596-03579 :
v. : No. 2 Mine
BLANKENSHIP AND RIFE :
INCORPORATED,
:
Respondent :
:
SECRETARY OF LABOR,
: CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 94-36 Petitioner : A. C. No. 44-04703-03578 :
: No. 1 Mine
v. :
HIGHLANDER COAL CORPORATION, :
Respondent :

ORDER TO SUBMIT INFORMATION

On August 18, 1994, the Solicitor filed a letter requesting that the stays in Kyn Coal Company, Docket No. Kent 94-294 and Environmental Mine Services, Docket Nos. KENT 94-324, VA 94-32, VA 94-33, VA 94-34, VA 94-37, and VA 94-38 be lifted, and that the remaining dockets, C & S Coal Company, Docket No. VA 94-27; Eastern Coal Company, Docket No. VA 94-28; Brent Coal Company, Docket No. VA 94-29; Blankenship & Rife Inc., Docket No. VA 94- 30; and Highlander Coal Corp., Docket No. VA 94-36, not be

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stayed. A copy of the letter was sent to counsels for the operators.

On April 13, 1994, I issued an order of stay in Kyn Coal Co,, pending a decision in the case specific trial in Keystone Coal Company, PENN 91-451-R et. al. A decision on the common issues had been previously rendered. 15 FMSHRC 1456 (July 1993). It appeared that the decision in Keystone Coal would be of some guidance in these matters. The cases involving Environmental Mine Services were stayed for the same reason. Thereafter, on April 20, 1994, a decision was issued in the case specific trial in Keystone Coal Company. 16 FMSHRC 857. And on May 27, 1994, the Commission granted review in IN RE: CONTESTS OF RESPIRABLE DUST SAMPLES ALTERATION CITATIONS, Master Docket No. 91-1 and Keystone Coal Mining Corporation, Docket Nos. PENN 91-451-R et al., involving both the common issues and mine-specific deci- sions. By order dated August 31, 1994, I granted the Secretary's motion to stay all cases in the master docket except for those on appeal to the Commission.

The Solicitor's letter in the instant cases states that the ultimate disposition in the cases now before the Commission will not affect the outcome of these cases because the respirable dust filters and the abnormal appearances are different than those in Keystone. I do not believe the specific outcome in these cases must depend upon the Commission's decision in Keystone in order for a stay to be appropriate. It is my belief that determina- tions by the Commission on matters such as burden of proof and expert testimony would be of assistance in these cases. However, the operators have not been heard from with respect to a stay.

In light of the foregoing, it is ORDERED that within 30 days the operators submit their views on whether or not these cases should be stayed.

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)

Edward H. Fitch, Esq., Trial Attorney, Stephen D. Turow, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

Steven and Yvonne Rife, Environmental Mine Services, P. O. Box 567, Hurley, VA 24620

Robert J. Breimann, Esq., Street, Street, Street, Scott & Bowman, 339 West Main Street, P. O. Box 2100, Grundy, VA 24614

Thomas R. Scott, Jr., Esq., Terrence Shea Cook, Esq., Street, Street, Street, Scott & Bowman, 339 West Main Street, P. O. Box 2100, Grundy, VA 24614

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main Street, Drawer 1560, Grundy, VA 24614

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Mr. Kermit Rife, President, Blankenship & Rife, Inc., Route 1, Box 497, Grundy, VA 24614

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, PSC, 415 Second Street, P. O. Box 351, Pikeville, KY 41502

Carl E. McAfee, Esq., McAfee, Bledsoe & Associates, PC., 1033 Virginia Avenue, P. O. Box 656, Norton, VA 24273-0656

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