<DOC>
[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