.
OLD HICKORY COAL COMPANY
May 9, 1995
WEVA 94-360


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                             May 9, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-360
                Petitioner      :  A. C. No. 46-06750-03551
                                :
          v.                    :
                                :
OLD HICKORY COAL COMPANY,       :  Peats Branch No. 3
                Respondent      :

               ORDER DISAPPROVING SETTLEMENT AGREEMENT

Before:  Judge Hodgdon

     This case is before me on a petition 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.  A reduction in penalty from $10,000.00 to $5,500.00
is proposed.  In addition, both orders in the case are to be
modified from 104(d)2) orders, 30 U.S.C. § 814(d)(2), to 104(a)
citations, 30 U.S.C. § 814(a), by deleting the "unwarrantable
failure" designations and reducing the degree of negligence
from "high" to "moderate."

     Order No. 4184405 alleges a violation of Section 77.404(a)
of the Regulations, 30 C.F.R. § 77.404(a), because five
safety defects were found on the cut rock truck.  Two of
these conditions had been reported on previous pre-shift
inspection records.  The agreement states that evidence
would not support a finding of "unwarrantable failure" because:

     Although the brake lights and handrails had been reported
     on the pre-shift examination records within a week of the
     issuance of the order, none of the safety defects were
     reported on either the day the order was issued or the
     preceding day. Consequently, the Respondent may have
     reasonably concluded that the brake lights and handrails
     had been repaired before the order was issued.  Although
     the operator has a duty to ensure that reported hazards
     are corrected, there is no indication that the failure
     to correct the reported hazards, or the failure to
     detect the additional, unreported hazards, was due to
     more than ordinary negligence.

     Order No. 4184413 is for a violation of Section 77.1001,
30 C.F.R. § 77.1001, because loose, unconfined material,
consisting of large rocks which were shot and broken up, was
observed in the highwall area where equipment was working.
The agreement avers that the Secretary could not establish
that this violation was due to the Respondent's "unwarrantable
failure" because "[a]lthough rocks were present in the
highwall area, they were imbedded in the mud seam.  Consequently,
the operator's failure to take action in light of this
condition did not constitute aggravated conduct."

     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."  With respect
to the first order, rather than leading to the conclusion that
the violation did not result from the Respondent's
"unwarrantable failure," the facts set out create a strong
inference that the respondent was indifferent or exhibited a
serious lack of reasonable care.  The facts set out concerning
the second order are simply insufficient to reach a conclusion
one way or the other concerning "unwarrantable failure."

     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).

     Based on the statements provided, I have no way of making
such a determination in this case.  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 case being rescheduled for hearing.


                                 T. Todd Hodgdon
                                 Administrative Law Judge

Distribution:

Tina C. Mullins, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Room 516, Arlington,
VA  22203 (Certified Mail)

David J. Hardy, Esq., Linden R. Evans, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322
(Certified Mail)

/lbk