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[DOCID: f:l96-6.wais]

 
YAHARA MATERIALS INC.
December 24, 1996
LAKE 96-6-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          December 24, 1996

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :    Docket No. LAKE 96-6-M
               Petitioner     :    A.C. No. 47-02846-05509
          v.                  :
                              :    Mine Unit No. 4
YAHARA MATERIALS INC.,        :
               Respondent     :
                              :
SECRETARY  OF LABOR,          :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :    Docket No. LAKE 97-4-M
               Petitioner     :    A.C. No. 47-02846-05510
          v.                  :
                              :    Mine Unit No. 4
JAMES B. HOPPMAN,             :
               Respondent     :

             ORDER DISAPPROVING SETTLEMENT AGREEMENT

     These  cases are before me on Petitions  for  Assessment  of
Civil Penalty under section 105(d) of the Federal Mine Safety and
Health Act of  1977,  30  U.S.C.  �  815(d).   The  Secretary, by
counsel,  has  filed  a motion to approve a settlement agreement.
Reduction  in  penalty  from  $2,500.00  to  $1,250.00,  for  the
operator, and from $600.00 to $250.00, for Hoppman, are proposed.

     The citation alleges a violation of section 56.11001 of the
Regulations, 30 C.F.R. � 56.11001, because:

          The foreman was  observed  on  the  red  Portec stacker
     conveyor  gaining  access  to  the  head pulley so he  could
     grease the bearings.  The conveyor was  not  equipped with a
     walkway or handrails on both sides of the belt.   A  tagline
     was not available to tie a safety belt or line.  The company
     has not provided a safe access for persons greasing the head
     pulley.  A fall of about 12' existed to the limestone floor.
     The  foreman traveled the belt for a distance of about  50'.
     The conveyor  belt  was  about  30"  wide.  A fatality could
     occur from a 12' fall.  The wind was gusting at the time the
     violation occurred.
         
The  citation,  issued under section 104(d)(1)  of  the  Act,  30
U.S.C. � 814(d)(1),  was  found  to  result  from  the operator's
"unwarrantable  failure"  to  comply  with  the regulation.   The
petition against the foreman under section 110(c)  of the Act, 30
U.S.C. � 820(c), requires a finding that the foreman  "knowingly"
violated the regulation.

     As justification for the settlement, the agreement  provides
that:

          A  reduction  from the original assessment is warranted
     based on a review of  the  complete history of the mine, the
     fact  that  there  is  no  legal   issue  involved  in  this
     citation/order, the size of the operator,  and the fact that
     the Respondent YAHARA MATERIALS INC., accepts the underlying
     citation/order (number 4210784).  MSHA reduces  the  penalty
     for   the   underlying   citation/order  from  the  original
     assessment of $2,500 to $1,250  based  upon  the  operator's
     good  faith  in abating the cited condition immediately  and
     its  strong  commitment   to   enforcing   compliance   more
     strenuously  in the future.  Further, the operator furnished
     the Secretary  with  information  regarding its policies and
     practices related to safety procedures  around  conveyors at
     Unit No. 4.

                               . . . .

          Respondent   JAMES   R.  HOPPMAN,  employed  by  Yahara
     Materials Inc., accepts the  citation/order  issued  against
     him  under  �  110(c).   MSHA  reduces  the  penalty for the
     underlying  citation/order  from the original assessment  of
     $600 to $250 based on the reasons stated above.

     The  Mine  Act  was  passed  with  the  intention  that  the
Commission  "assure  that  the  public   interest  is  adequately
protected  before approval of any reduction  in  penalties."   S.
Rep. No. 95-181,  95th  Cong.,  1st Sess. 45 (1977), reprinted in
Legislative History of the Federal  Mine Safety and Health Act of
1977,  at  633 (1978).  In this connection,  it  is  the  judge's
independent responsibility to determine the appropriate amount of
penalty, in  accordance  with the six criteria set out in Section
110(i) of the Act, 30 U.S.C. � 820(i).  Sellersburg Stone Company
v. Federal Mine Safety and  Health  Review  Commission,  736 F.2d
1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481
(April 1996).

     For this reason, Commission  Rule  31(b)(3),  29  C.F.R.
�  2700.31(b)(3),  requires  that  a  motion  to  approve  a
settlement include "{f}acts in support of the penalty agreed
to  by  the  parties"  so that the judge can verify that the
reduced penalty is appropriate.   No such facts are provided
with this agreement.

     A "complete history of the mine" was  not  furnished  with
the agreement. Nor was there any explanation  of what precisely
in  the history justifies the reduction in  penalty.   It  is
unclear  what  "no  legal  issue  involved"  in the citation
means,  nor  why this should redound to the benefit  of  the
Respondents.   Nothing is offered concerning how the size of
the  operator  supports  a  further  reduction  in  penalty.
Finally,  no  reason  is  given  for  why  the  Respondents'
"acceptance" of the citation is a justification for reducing
the penalty.

     Furthermore, the Respondents' history of violations, the
company's  size  and it's abatement efforts were  presumably
considered, as required by section 100.3 of the Regulations,
30 C.F.R. � 100.3, when the penalty was originally assessed.
Therefore, absent  extraordinary circumstances, which should
be thoroughly detailed  in  a  settlement  agreement,  these
factors  provide  no  basis  for  an additional reduction in
penalty.  Likewise, a commitment to  comply  with the law in
the  future  is  expected  of  everyone.   Reinforcing  that
commitment if one of the anticipated results  of a citation.
It is not a reason for reducing a penalty.[1]

     The  petitions in these cases allege  that  the  foreman 
acted knowingly  and  that  the company's failure to adhere to
the regulation resulted from an  unwarrantable  failure. More
than the normal case, sufficient justification must be provided
before penalties can be reduced.  Moreover, the deficiencies
present   in   these   cases  have  previously  resulted  in
settlement agreements being  disapproved.   Fox  River Stone
Company,  18 FMSHRC 1312 (July 1996); Peabody Coal  Company,
18 FMSHRC 1309  (July  1996),  Coal  Miners Incorporated, 18
FMSHRC 827 (May 1996).

     The Secretary has failed to include any facts to support 
the penalty  agreed on in either of these cases.   Consequently,
having  considered  the  representations  and  documentation
submitted, I am unable to approve the proffered settlement.

                              ORDER

     Accordingly,  it  is ORDERED that the motion for approval
of settlement is DENIED.   The  parties  have  15 days from the
date  of  this  order  to  submit additional information  to
support  the  motion  for  settlement.   Failure  to  submit
additional  information, or to  resubmit  a  new  agreement,
within the time  provided  will  result  in  the cases being
scheduled for hearing.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

Gay F. Chase, Esq., Office of the Solicitor, U.S. Department
of Labor,  230  S. Dearborn  St., 8th Floor, Chicago, IL 60604
(Certified Mail)

Mr. Larry Burcalow, Yahara Materials  Inc., P.O.  Box  277,
Waunakee, WI 53597 (Certified Mail)

Mr.  James  R.  Hoppman,  6433 Town Hall  Rd.,  Sun  Prairie, 
WI 53590 (Certified Mail)

/lt


**FOOTNOTES**

     [1]: Providing "the Secretary with information regarding its
policies  and  practices  related  to  safety  procedures  around
conveyors  at Unit No. 4" is not a reason for reducing a penalty.
This is so obvious it does not require further discussion.