[DOCID: f:va93-108.wais] SOUTHMOUTAIN COAL, INC. June 27, 1995 Docket No. VA 93-108-R FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 June 27, 1995 SOUTHMOUTAIN COAL, INC. : CONTEST PROCEEDINGS : AND : Docket No. VA 93-108-R : Citation No. 4257501; 5/26/93 WILLIAM RIDLEY ELKINS, : Contestants : Docket No. VA 93-109-R : Order No. 4257502; 5/26/93 v. : : Docket No. VA 93-110-R SECRETARY OF LABOR, : Order No. 4257503; 5/26/93 MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. VA 93-111-R Respondent : Order No. 4257504; 5/26/93 : : Docket No. VA 93-112-R : Order No. 4257505; 5/26/93 : : Docket No. VA 93-113-R : Order No. 4257506; 6/26/93 : : Docket No. VA 93-114-R : Order No. 4257507; 5/26/93 : : Docket No. VA 93-115-R : Order No. 4257508; 5/26/93 : : Docket No. VA 93-116-R : Order No. 4257509; 5/26/93 : : Docket No. VA 93-117-R : Order No. 4257510; 5/26/93 : : Docket No. VA 93-119-R : Order No. 4257512; 5/26/93 : : Docket No. VA 93-124-R : Order No. 4257517; 5/26/93 : : Docket No. VA 93-125-R : Citation No. 4257518; 5/26/93 : : Docket No. VA 93-131-R : Citation No. 4257524; 5/26/93 : : Docket No. VA 93-132-R : Order No. 4257525; 5/26/93 : Docket No. VA 93-133-R : Citation No. 4257526; 5/26/93 : : Docket No. VA 93-134-R : Citation No. 4257527; 5/26/93 : : Docket No. VA 93-135-R : Citation No. 4257528; 5/26/93 : : Docket No. VA 93-137-R : Order No. 4257530; 5/26/93 : : Docket No. VA 93-138-R : Order No. 4257531; 5/26/93 : : Mine No. 3 I.D. No. 44-06594 : SECRETARY OF LABOR, MINE : CIVIL PENALTY PROCEEDINGS SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. VA 93-165 Petitioner : A.C. No. 44-06594-03522 : v. : Docket No. VA 93-166 : A.C. No. 44-06594-03523 SOUTHMOUNTAIN COAL, INC., : Respondent : No. 3 Mine ORDER LIFTING STAYS/DECISION APPROVING SETTLEMENT AND ORDER OF DISMISSAL In a motion to dismiss these proceedings the Secretary states as follows: In accordance with a plea agreement and sentencing in related criminal proceedings and because the respondent Southmountain Coal Company (Southmountain) has paid a substantial civil penalty for the violations involved in these proceedings. In support of this motion, the Secretary offers the following information and explanation. (1) As a result of criminal prosecution against both respondents, the United States District Court for the Western District of Virginia accepted guilty pleas from Southmountain and Ridley Elkins. A provision of those guilty pleas required the Secretary to move to dismiss these proceedings upon payment of the proposed civil penalties totalling $436,732. (2) On May 17, 1995, in accordance with the guilty pleas, United States District Judge Samuel Wilson sentenced Southmountain to pay the above-enumerated monetary amount to the Mine Safety and Health Administration, in addition to criminal fines and restitution totalling an additional $1,563,268. (3) On May 31, 1995, Judge Wilson ordered Apple Coal Company, the parent company of Southmountain, to pay the amounts charged against Southmountain. This payment by Apple Coal Company was pursuant to an agreement made by Apple in front of Judge Wilson. (4) The amount to be paid to the Mine Safety and Health Administration has been remitted in accordance with Judge Wilson's orders. (5) The Secretary sought the civil penalties in this case against Southmountain and Mr. Elkins, as jointly and severally liable for the violations. By payment of the total proposed amount by Apple, the monetary liability of both respondents has been satisfied. In addition, the findings of criminal conduct serve as significant deterrents to further such violations. Therefore, in light of the payment of substantial civil penalties and criminal sentences in the related criminal proceedings, the Secretary moves that these civil penalty proceedings be dismissed. The Secretary's motion is deemed in part to constitute a motion for settlement in which Respondent has agreed to pay and has, in fact, paid the proposed penalty of $436,732 in full. I have considered the representations and documentation submitted in these cases, and I conclude that the proffered settlement is acceptable under the criteria set forth in Section 110(i) of the Act. ORDER WHEREFORE, the Stay Orders in the captioned cases are lifted, and the settlement in the civil penalty proceedings is approved. Furthermore, the captioned contest proceedings are dismissed as now moot. Gary Melick Administrative Law Judge (703) 756-6261 Distribution: Henry Chajet, Esq., James Zissler, Esq., Jackson and Kelly, 2401 Pennsylvania Ave., N.W., Suite 400, Washington, D.C. 20037 (Certified Mail) Jeffery Sturgill, Esq., Sturgill, Mullins and Kennedy, 944 Norton Road, P.O. Box 3458, Wise, VA 24293 (Certified Mail) Carl C. Charneski, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 (Certified Mail) Jack Kennedy, Attorney at Law, 105 Sixth Street, N.W., Suite 200, P.O. Box 654, Norton, VA 24273 (Certified Mail) Jessee Darrell Cooke, Miners' Representative, Southmountain Coal, Inc., P.O. Box 950, Coburn, VA 24230 (Certified Mail) /jf