<DOC>
[DOCID: f:c97-116m.wais]

 
BAILEY'S LIMESTONE QUARRY
November 7, 1997
CENT 97-116-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                           November 7, 1997

SECRETARY OF LABOR,               :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :   Docket No.  CENT 97-116-M
               Petitioner         :    A. C. No.  34-01794-05503
                                  :
          v.                      :
                                  :   Bailey's Limestone Quarry
BAILEY'S LIMESTONE QUARRY,        :
               Respondent         :

              ORDER DENYING MOTION TO APPROVE SETTLEMENT

     This case concerns a proposal for assessment of civil
penalty filed pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C.  815(d)), seeking the
assessment of two alleged violations of mandatory safety
standards found in Part 56, Title 30, Code of Federal
Regulations.

     The alleged violations arose out of the Secretary's
investigation of a fatal accident that occurred on June 29, 1996,
at the Respondent's limestone quarry.  The Secretary alleges, in
part, that a laborer was fatally injured when he was crushed
between the bucket of a front end loader and the metal frame of
the primary crusher's v-belt drive unit.

     Citation No. 4448695 alleges a violation of
section 56.14211(b) in that the loader bucket was in a raised
position and was not blocked to prevent accidental lowering or
provided with a load locking device.  In addition, the Secretary
alleges the violation was a significant and substantial
contribution to a mine safety hazard (S&S violation) and the
result of the operator's unwarrantable failure to comply in that
a foreman was working at the site at time of the accident and
should have recognized the hazard.

     Citation No. 4448696 alleges a violation of section 50.10
because the accident, which occurred on June 29, was not reported
to MSHA until July 9, 1996.

     The Secretary specially assessed both alleged violations
(30 C.F.R.  100.5).  The violation alleged in Citation No.
4448695 was assessed at $20,000, and the violation alleged in
Citation No. 4448696 was assessed at $2,500.

     After the matters were scheduled for hearing, the parties
settled the case.  Accordingly, the hearing was canceled.  The
parties then moved for approval of the settlement.  The motion
states, "The parties propose the settlement of these citations by
reducing the penalties to the total amount of $3,500.00.  No
other changes to the citations are proposed."

     The settlement motion does not indicate how the total amount
is to be apportioned between the alleged violations, something
both I and the Secretary's Office of Assessment need to know.  In
addition, although the motion contains a contention that
imposition of the originally proposed penalty will adversely
affect the Respondent's ability to continue in business, it does
not provided adequate support for such a finding.  The motion
states only, "The Respondent is a small business with substantial
debt and currently has a severe cash shortage.  In order to avoid
the costs of further defending the citations, Respondent is
willing to settle his case by paying the penalties as amended
rather than asserting the defenses to the citations" (Motion To
Approve Settlement Agreement 2).

     A case arising under the Mine Act is primarily -  but not
entirely -  the province of the parties.  While, in general, they
may try or not try a case as they choose, any settlement they
reach must reflect not only their particular interests, but those
of the public's as well (S. Rep. No. 95-181, 95th Cong.,
1st Sess. 45, reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 633
(1978).  This latter interest is implemented by requiring the
administrative law judge to approve the settlement (30 U.S.C.
 820(k)), based upon "[f]acts in support of the penalty agreed
to by the parties" (29 C.F.R.  2700.31(b)(3)).

     As noted, this case involves a fatality and the charge that
the foreman unwarrantably failed to correct a violative practice
that resulted in the death.  More than in a normal case,
sufficient justification must be provided before the penalties
can be reduced.  The parties propose a reduction of approximately
84 percent in the total penalty, yet they offer no figures or
supporting documents regarding the Respondent's "substantial
debt" and "severe cash shortage".  While the assertions in this
regard may well be true, the public interest requires their
confirmation.

     Until the parties provide more facts to support the proposed
penalty, I cannot approve the settlement.

                                ORDER

     Accordingly, the motion to approve the settlement is DENIED.
The parties are ORDERED to resubmit the motion, including
supporting figures and/or documents within 15 days of the date of
this Order.  The resubmitted motion must indicate how to
apportion the total proposed penalty.  Failure to comply with
this order will result in the case immediately being scheduled
for hearing.

                                David Barbour
                                Administrative Law Judge

Distribution:

Thomas A. Paige, Esq., Office of the Solicitor,
U. S. Department of Labor,
525 Griffin Street,
Suite 501, Dallas, TX 75202
(Certified Mail)

Mr. Danny Bailey, Bailey's
Limestone Quarry, P. O. Box 996,
Wewuka, OK 74884 (Certified Mail)

dcp