<DOC>
[DOCID: f:se96355m.wais]

 
ARENAS MATILDE INCORPORATED
January 7, 1997
SE 96-355-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


                   1730 K STREET NW, 6TH FLOOR
                  Washington, D.C.   20006-3868


                         January 7, 1997

SECRETARY OF LABOR            :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA)       :     Docket No. SE 96-355-M
               Petitioner     :     A. C. No. 54-00333-05510
                              :
          v.                  :
                              :
ARENAS MATILDE INCORPORATED,  :     Arenas Matilde
               Respondent     :
                              :


                ORDER DENYING MOTION TO WITHDRAW
                  DECISION APPROVING SETTLEMENT
                           ORDER TO PAY

Before:  Judge Merlin

     This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Arenas Matilde
Incorporated under section 105(d) of the Federal Mine Safety and
Health Act of 1977.  30 U.S.C. � 815(d).

     One violation is involved in this case.  The originally
assessed penalty was $119.  On October 25, 1996, the Solicitor
and the operator's attorney filed a joint motion seeking approval
of a settlement in the amount of $70.  To support their request
they advised that the operator was small in size and the viola-
tion was promptly abated.  The motion was signed by both the
Solicitor and the operator's attorney.

     The motion is well taken.  Section 110(i) of the Act, 30
U.S.C. � 820(i), sets forth six factors that must be taken into
account in determining the appropriate amount of penalty.  The
motion identifies two of the relevant factors in explaining why a
reduction from the original assessment is warranted.  The motion
also provides the basis for me to determine that the recommended
settlement is a proper amount under all the criteria specified in
section 110(i).  The motion is therefore, entitled to approval.

     However, on December 16, 1996, the Commission received a
copy of a letter dated December 13, 1996, from operator's counsel
to the Solicitor.  Operator's counsel requested that all settle-
ment proceedings be stopped unless it was understood that the
Mine Safety and Health Administration had no jurisdiction in the
future.  On December 26, 1996, the operator filed a motion to
clarify or withdraw the settlement.  By letter dated December 31,
1996, the Solicitor opposed the operator's request to withdraw
the settlement and stated that the settlement represented a
binding agreement of the parties.

     It is well established that settlements are favored as a
     way of avoiding protracted and expensive litigation.  Core-
     Vent Corp. v. Implant Innovations, Inc., 53 F.3d 1252, 1259
     (Fed Cir. 1995).  In this case there is no question that the
     terms of the settlement were understood and accepted by both
     parties.  Also, it is undisputed that counsel for both sides
     were authorized to enter into the settlement on behalf of
     their clients.  In Re Artha Management, Inc., 91 F.3d 326,
     328-329 (2nd Cir. 1996); U.S. v. International Broth. Of
     Teamsters, 986 F.2d 15, 19-20 (2nd Cir. 1993).  All that
     appears is that some time after entering into the
     settlement, the operator decided to challenge the
     jurisdiction of the Mine Safety and Health
     Administration.[1]  However, the settlement into which the
     operator freely and knowingly entered is binding.  Wilson v.
     Wilson, 46 F.3d 660, 667 (7th Cir. 1995).  The Commission
     has recognized that settlement is an integral part of
     dispute resolution under the Mine Act.  Kathleen I. Tarmann
     v. International Salt Company, 12 FMSHRC 1, 2 (January
     1990).  A settlement agreement may be reopened only on the
     grounds of mutual mistake or fraud.  A unilateral mistake is
     not sufficient to allow the mistaken party to avoid the
     effect of an otherwise valid settlement agreement.  UMWA v.
     Utah Power and Light Company, 12 FMSHRC 1548, 1555 (August
     1990).

     The operator is free to raise jurisdictional questions with
     respect to future citations.

     Accordingly, it is ORDERED that the request to withdraw
     settlement be DENIED.

**FOOTNOTES**

     [1]:  A  previous  jurisdictional challenge by this operator
was  rejected  and  no  appeal   was   taken.    Arenas   Matilde
Incorporated, 15 FMSHRC 2304, 2309-2311 (November 1993).


     It is further ORDERED that the settlement motion be APPROVED
     and that the operator PAY $70 within 30 days of the date of
     this decision.






                              Paul Merlin
                              Chief Administrative Law Judge

Distribution: (Certified Mail)

James A. Magenheimer, Esq., Office of the Solicitor, U. S.
Department
of Labor, 201 Varick Street, New York, NY 10014

Juan B. Soto-Balbas, Esq., Mercado & Soto, P. O. Box 4839, Old
San
Juan, PR 00902

                              /gl