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[DOCID: f:kt94574.wais]

 
KYBER COAL COMPANY
May 18, 2000
KENT 94-574-R


        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
                              :
                              :  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
                              :
                              :  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)).

     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
                           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        $10,000
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.

                              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

**FOOTNOTES**

     [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.