Ezel / Agency Decisions / kent-95-272-alj
FMSHRC ALJ decision Docket KENT 95-272, KENT 95-276, KENT 95-280, KENT 95-284, KENT 95-288, KENT 95-689, KENT 95-692, KENT 95-697, KENT 95-701, KENT 95-707, KENT 95-713, KENT 95-715, KENT 95-776, KENT 95-242, KENT 95-243, KENT 95-244, KENT 95-245, KENT 95-246, KENT 95-651, KENT 95-652, KENT 95-653, KENT 95-654, KENT 95-655, KENT 95-656, KENT 95-657, KENT 95-740, KENT 94-574-R through KENT 94-797-R, KENT 94-862-R Decided May 18, 2000 Mixed result Judge David F. Barbour

Kyber Coal Company

Kyber Coal Company (FMSHRC KENT 95-272): Settlement approved across consolidated contest and penalty proceedings

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This order from 2000 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 2000
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This order became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because the Commission did not direct review within that period. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Judge David F. Barbour approved a settlement covering consolidated contest and civil penalty proceedings involving Kyber Coal Company and A A & W Coals, Inc. The record states that the matters concerned alleged violations of mandatory coal mine safety standards in Parts 48, 75, and 77, including citations related to an accident that fatally injured a miner. Kyber was ordered to pay $40,000 for one group of violations and A A & W was ordered to pay $75,000 in three installments for another group. Other listed citations and orders were to be vacated, Kyber’s notices of contest were withdrawn, and the proceedings were dismissed after payment and vacation.

Decision snapshot

  • Cited standard(s): 30 C.F.R. §§ 75.321, 75.360(b)(1), 75.364(a)(1), 75.364(b)(2), 75.370(a)(1), 75.403, 75.442(a)(4), 75.1702-1
  • Outcome: Settlement approved, $40,000 and $75,000 penalties ordered, other citations and orders vacated, and proceedings dismissed.
  • Key point: The judge approved a global settlement that resolved both penalty and contest proceedings, with payment for some violations and vacation of others.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

                              May 18, 2000

KYBER COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket Nos. KENT 94-574-R
: through KENT 94-797-R
: and KENT 94-862-R
v. :
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Petitioner :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-272
Petitioner : A. C. No. 15-16856-03536
v. :
KYBER COAL COMPANY, : Docket No. KENT 95-276
Respondent : A. C. No. 15-16856-03537
:
: Docket No. KENT 95-280
: A. C. No. 15-16856-03538
:
: Docket No. KENT 95-284
: A. C. No. 15-16856-03539
:
: Docket No. KENT 95-288
: A. C. No. 15-16856-03540
:
: Docket No. KENT 95-689
: A. C. No. 15-16856-03544
:
: Docket No. KENT 95-692
: A. C. No. 15-16856-03542
:
: Docket No. KENT 95-697
: A. C. No. 15-16856-03547

                                      683

Page 2

                           :

                           :         Docket No. KENT 95-701
                           :         A. C. No. 15-16856-03545
                           :
                           :         Docket No. KENT 95-707
                           :         A. C. No. 15-16856-03548
                           :
                           :         Docket No. KENT 95-713
                           :         A. C. No. 15-16856-03543
                           :
                           :         Docket No. KENT 95-715
                           :         A. C. No. 15-16856-03546
                           :
                           :         Docket No. KENT 95-776
                           :         A. C. No. 15-16856-03549
                           :
                           :         Elmo No. 5 Mine
                           :

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 95-242
Petitioner : A. C. No. 15-16856-03536
:
v. : Docket No. KENT 95-243
A A & W COALS, INCORPORATED, : A. C. No. 15-16856-03537
Respondent :
: Docket No. KENT 95-244
: A. C. No. 15-16856-03538
:
: Docket No. KENT 95-245
: A. C. No. 15-16856-03539
:
: Docket No. KENT 95-246
: A. C. No. 15-16856-03540
:
: Docket No. KENT 95-651
: A. C. No. 15-16856-03542
:
: Docket No. KENT 95-652
: A. C. No. 15-16856-03543
:
: Docket No. KENT 95-653
: A. C. No. 15-16856-03544
:

                               684

Page 3

                                          :         Docket No. KENT 95-654
                                          :         A. C. No. 15-16856-03545
                                          :
                                          :         Docket No. KENT 95-655
                                          :         A. C. No. 15-16856-03546
                                          :
                                          :         Docket No. KENT 95-656
                                          :         A. C. No. 15-16856-03547
                                          :
                                          :         Docket No. KENT 95-657
                                          :         A. C. No. 15-16856-03548
                                          :
                                          :         Docket No. KENT 95-740
                                          :         A. C. No. 15-16856-03549
                                          :
                                          :         Elmo No. 5 Mine

                      DECISION APPROVING SETTLEMENT
                               ORDER TO PAY
                             ORDER TO VACATE
                            ORDER OF DISMISSAL

Appearances:

Before: Judge Barbour

    In the civil penalty cases, the Secretary of Labor, on behalf of the Mine Safety and Health

Administration, seeks the assessment of civil penalties against Kyber Coal Company (Kyber) and
A &W Coal Company (A &W) for numerous alleged violations of mandatory safety standards for
coal mines found in parts 48, 75 and 77 of Title 30 C.F.R. The citations and orders in which the
violations are alleged were issued jointly to Berwind Natural Resources Corporation (Berwind),
Kentucky Berwind Land Company (Kentucky Berwind), Jesse Branch Coal Company (Jesse
Branch), Kyber and A &W. All of the companies, except A &W, contested the validity of the
citations and orders on jurisdictional grounds. To resolve the questions of liability, I bifurcated
the contest and civil penalty proceedings and first addressed the jurisdictional issues. In
subsequent proceedings, I found that of the four contestants only Kyber was subject to Mine Act
jurisdiction (Berwind Natural Resources Corporation, et al., 18 FMSHRC 202 (February 1996)).

    My decision was appealed to the Commission. Although A &W did not contest

jurisdiction, I stayed the civil penalty proceedings against A &W pending the Commission’s
decision. A &W and the other companies were charged with the same violations, and I agreed
with A &W that it was necessary to know which party or parties were potentially responsible for
the alleged violations before ruling on the merits of the violations and before assessing penalties
for those that were found to have occurred (Order Staying Proceedings (April 15, 1996)).

                                              685

Page 4

    On appeal, a majority of the Commission held that Berwind, Kentucky Berwind and Jesse

Branch were not operators, but that Kyber was (Berwind Natural Resources Corporations, et al.,
21 FMSHRC 1284 (December 1999)) and the Commission remanded the cases for further
proceedings. Following the remand, I dissolved the stay in the A &W cases and ordered counsels
for the Secretary, Kyber and A &W to confer regarding (1) all disputed issues of fact and law, (2)
matters that could be the subject of stipulation, (3) the amount of the proposed penalties, and (4)
possible settlement. In addition, I scheduled a prehearing conference of record for April 18,
2000, in order for counsels to report regarding their discussions and their preparations for trial.

    Immediately prior to the start of the prehearing conference, counsel for the Secretary

advised me that a settlement offer had been presented to counsels for Kyber and A & W (Tr. 9).
Later that morning counsels advised me that a settlement had been agreed to for all of the
violations, citations, and orders involved in the cases and that counsels were prepared to present
the settlement on the record. I opened the record and counsel for the Secretary stated the terms
of the settlement as well as bases for approving the settlement (Tr. 11-14). Counsels for Kyber
and A & W stated that they concurred (Tr. 14-16). Counsel for the Secretary agreed to submit a
written motion setting forth the terms of the settlement (Tr. 15-16). In addition, counsel for
Kyber agreed that Kyber would withdraw its notices of contest and that the Secretary would
make this representation in the settlement motion (Tr. 14-15). At the close of the conference, I
advised the parties that I would approve the settlement, and that I would issue a decision
approving the settlement upon receipt of the written settlement motion.

   On May 10, 2000, the Secretary filed the written motion 1. The proposed settlement is as

follows:
Kyber Coal Company
Docket No. KENT 95-776

Citation/
Order No. Date 30 C.F.R. Assessment Settlement

4010541 03/24/94 75.370(a)(1) $50,000 $5,500
4010542 03/22/94 75.360(b)(1) $40,000 $5,500
4010543 03/24/94 75.1702-1 $50,000 $5,500
4010544 03/22/94 75.403 $30,000 $3,500
4010545 03/24/94 75.321 $50,000 $5,500
4010546 03/22/94 75.360(b)(1) $40,000 $5,500
4010547 03/24/94 75.364(b)(2) $40,000 $4,000
4010582 03/22/94 75.364(a)(1) $20,000 $2,500
4010583 03/24/94 75.442(a)(4) $20,000 $2,500

                                A A & W Coal Company


   1
     The written settlement motion is slightly different than the motion presented on the

record. The parties orally advise that the written settlement represents their final agreement.

                                            686

Page 5

                                       KENT 95-740

4010541 03/24/94 75.370(a)(1) $50,000 $10,000
4010542 03/22/94 75.360(b)(1) $40,000 $10,000
4010543 03/24/94 75.1702-1 $50,000 $10,000
4010544 03/22/94 75.403 $30,000 $7,500
4010545 03/24/94 75.321 $50,000 $10,00
0
4010546 03/22/94 75.360(b)(1) $40,000 $10,000
4010547 03/24/94 75.364(b)(2) $40,000 $7,500
4010582 03/22/94 75.364(a)(1) $20,000 $5,000
4010583 03/24/94 75.442(a)(4) $20,000 $5,000

    With regard to the above-listed citations and orders which were issued in conjunction with

an accident where a miner was fatally injured, the Secretary represents that reductions are
warranted for Kyber Coal Company because Kyber was a small operator and has left the mining
business. In addition, Kyber had no history of prior violation, and its contract mine operator, A
A &W, had a good history of prior violations.

    With respect to A A & W, the Secretary states that A A & W has suffered substantial

adverse business losses when its mine was closed as a result of the accident that triggered the
subject citations and orders and that A A & W’s size is very small with only 20 miners employed
at the mine. Finally, the Secretary states that A & W’s negligence was less than originally
thought.

    With regard to the remaining violations for Kyber contained in Docket Nos. KENT 95-

272, KENT 95-276, KENT 95-280, KENT 95-284, KENT 95-288, KENT 95-689, KENT 95-
692, KENT 95-697, KENT 95-701, KENT 95-707, KENT 95-713, KENT 95-715, and for A A
& W contained in Docket Nos. KENT 95-242, KENT 95-243, KENT 95-244, KENT 95-245,
KENT 95-246, KENT 95-651, KENT 95-652, KENT 95-653, KENT 95-654, KENT 95-655,
KENT 95-656, KENT 95-657, the Secretary advises that she is exercising her prosecutorial
discretion by agreeing to vacate these violations and to withdraw the penalty petitions. The
violations involved in these matters were issued and did not contribute to the fatality that resulted
from the accident.

     Finally, the Secretary states that the Kyber agrees to withdraw all of its notices of contest

of citations and orders that it filed and which are contained in Docket Nos. KENT 94-574-R
through KENT 94-797-R and KENT 94-862-R.

    After review and consideration of the pleadings, arguments and submission in support of

the settlement motion, I find the proposed settlement is reasonable and in the public interest.
Pursuant to 29 C.F.R. § 2700.31, the motion is GRANTED, and the settlement is APPROVED.

                                             687

Page 6

                                       ORDER

    Kyber Coal Company IS ORDERED to pay a civil penalty of $40,000 in satisfaction of

the violations contained in Docket No. KENT 95-776. Payment is to be made to MSHA within
45 days of the date of this proceeding. Also, within the same 45 days the Secretary IS
ORDERED to vacate all the citations and orders contained in Docket Nos. KENT 95-272,
KENT 95-276, KENT 95-280, KENT 95-284, KENT 95-288, KENT 95-689, KENT 95-692,
KENT 95-697, KENT 95-701, KENT 95-707, KENT 95-713, KENT 95-715. Upon receipt of
full payment and vacation of the citations and orders, these proceedings are DISMISSED.

    A A & W Coals, Inc., IS ORDERED to pay a civil penalty of $75,000 in satisfaction of

the violations contained in Docket No. KENT 95-740. Payment is to be made in three
installments of $25,000 each on June 1, 2000, June 1, 2001 and June 1, 2002. Also, within 45
days the Secretary IS ORDERED to vacate all the citations and orders contained in Docket Nos.
KENT 95-242, KENT 95-243, KENT 95-244, KENT 95-245, KENT 95-246, KENT 95-651,
KENT 95-652, KENT 95-653, KENT 95-654, KENT 95-655, KENT 95-656, KENT 95-657.
Upon receipt of full payment and vacation of the citations and orders, these proceedings are
DISMISSED.

   It is further ORDERED that the Kyber’s motion to withdraw its notices of contest filed in

Docket Nos. KENT 94-574-R through KENT 94-797-R and KENT 94-862-R is GRANTED
and that these cases are DISMISSED.

                                        David F. Barbour
                                        Chief Administrative Law Judge

Distribution: (Certified Mail)

Mark Malecki, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215
Robert I. Cusick, Esq., Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, 1700 Lexington
Financial Center, Lexington, KY 40507
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring LLP, 1001 Pennsylvania
Avenue, N.W., Washington, D. C. 20004
Michael Heenan, Esq., William Doran, Esq., Smith, Heenan & Althen, 1110 Vermont Avenue,
N.W., Suite 400, Washington, DC 20005-3593
/wd

                                          688

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