[DOCID: f:k96-178r.wais] COSTAIN COAL INC. January 29, 1997 KENT 96-178-R FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 January 29, 1997 COSTAIN COAL INC., : CONTEST PROCEEDINGS Contestant : Docket No. KENT 96-178-R : Order No. 4277266; 2/6/96 v. : : SECRETARY OF LABOR, : Mine Safety and Health : Docket No. KENT 96-179-R Administration (MSHA), : Citation No. 4277267; 2/6/96 Respondent : : Baker Mine : Mine ID No. 15-14492 : : SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS Mine Safety and Health : Administration, (MSHA), : Docket No. KENT 96-191 Petitioner : A. C. No. 15-14492-03708 : v. : : Docket No. KENT 96-213 COSTAIN COAL INC., : A. C. No. 15-14492-03709 Respondent : : Docket No. KENT 96-234 : A. C. No. 15-14492-03710 : : Docket No. KENT 96-235 : A. C. No. 15-14492-03712 : : Docket No. KENT 96-275 : A. C. No. 15-14492-03713 : : Baker Mine : : : Docket No. KENT 96-311 : A. C. No. 15-16020-03514 : : Smith Underground #1 Mine DECISION Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Petitioner; Carl B. Boyd, Jr., Esq., Henderson, Kentucky, for the Respondent. Before: Judge Feldman These consolidated contest and civil penalty proceedings concern petitions for assessment of civil penalties filed by the Secretary of Labor against the respondent corporation pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). The petitions seek to impose total civil penalties of $43,258 for alleged violations of mandatory safety standards in Parts 70 and 75 of the regulations, 30 C.F.R. Part 70 & 75. These matters were called for hearing on December 3, 1996, in Owensboro, Kentucky. At the commencement of the hearing, the parties advised that they had reached a comprehensive settlement with regard to all of the citations and orders in issue. Consequently, the respondent moved to withdraw its Notices of Contest in Docket Nos. KENT 96-178-R AND KENT 96-179-R. (Tr. 16-17). The settlement terms, which were presented and approved on the record, result in a reduction in the total proposed penalty from $43,258 to $32,001. The $32,001 settlement amount consists of the respondent's agreement to pay civil penalties of: $2,360 in Docket No. KENT 96-191; $4,606 in Docket No. KENT 96-213; $4,350 in Docket No. KENT 96-234; $13,250 in Docket No. KENT 96-235; $5,235 in Docket No. KENT 96-275;[1] and $2,200 in Docket No. KENT 96-311. The settlement terms include vacating Citation No. 4068884 in Docket No. KENT 96-191; modifying 104(d)(1) Order No. 4068883 to a 104(a) citation in Docket No. KENT 96-235 to reflect that the cited violation was not attributable to the respondent's unwarrantable failure; and modifying 104(d)(1) Citation No. 4276772 and 104(d)(1) Order No. 4276775 in Docket No. KENT 96-311 to 104(a) citations, thus removing the unwarrantable failure charges. I have considered the representations and documentation submitted in these cases, and I conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i) of the Act, 30 U.S.C. § 820(i). WHEREFORE, the motion for approval of settlement IS GRANTED. Accordingly, the respondent's motion to withdraw its contests in these matters IS GRANTED and IT IS ORDERED that the contest proceedings in Docket NOS. KENT 99-178-R and KENT 96-179-R ARE DISMISSED. IT IS FURTHER ORDERED that the respondent pay a total civil penalty of $32,001 in satisfaction of the citations in issue within 30 days of this order, and, upon receipt of timely payment, Docket Nos. KENT 96-191, KENT 96-213, KENT 96-234, KENT 96-235, KENT 96-275 and KENT 96-311 ARE DISMISSED. Jerold Feldman Administrative Law Judge Distribution: Tom Grooms, Esq., Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215 (Certified Mail) Carl Boyd, Esq., Box 88, Tropic, Utah 84776[2] (Certified Mail) Kevin Vaughn, Loss Prevention Advisor, Costain Coal, Inc., P.O. Box 289, Sturgis, Kentucky 42459-0298 (Certified Mail) \mca **FOOTNOTES** [1]: The record was left open in order to allow the parties to finalize their settlement agreement in Docket No. KENT 96-275. The parties subsequently advised me they had agreed upon a reduction in the proposed penalty from $8,235 to $5,235, based on a reduction in the gravity associated with Citation No. 9898360. [2]: At the time of the hearing Mr. Boyd's mailing address was 120 N. Ingram St., Henderson, KY 42420. However, Mr. Boyd's current address is Box 88, Tropic, Utah 84776. (Tr. 3).