.
MOBILE PREMIX SAND & GRAVEL COMPANY
June 24, 1997
WEST 95-339-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268

                            June 24, 1997


SECRETARY OF LABOR,              :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :   Docket No. WEST 95-339-M
               Petitioner        :     A.C. No. 05-00860-05537
                                 :
          v.                     :
                                 :   Specification Aggregates
MOBILE PREMIX SAND & GRAVEL      :
  COMPANY,                       :
               Respondent        :
                                 :
                                 :
SECRETARY OF LABOR,              :   CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :
               Petitioner        :
                                 :
          v.                     :
                                 :
DON DEWILD, employed by          :   Docket No. WEST 96-223-M
  MOBILE PREMIX SAND & GRAVEL    :     A.C. No. 05-00860-05540 A
  COMPANY,                       :
               Respondent        :
                                 :
KEITH BUESCHER, employed by      :   Docket No. WEST 96-224-M
  MOBILE PREMIX SAND & GRAVEL    : A.C. No. 05-00860-05541 A
  COMPANY,                       :
               Respondent        :
                                 :   Specification Aggregates


                               DECISION

Appearances:  Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for Petitioner;

Laura E. Beverage Esq., Jackson & Kelly, Denver, Colorado,
for Respondents.

Before:  Judge Manning

     These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Mobile
Premix Sand and Gravel Company ("Mobile Premix"), Don DeWild, and
Keith Buescher, pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the
"Act").  The citation in each petition, No. 4423012, alleges that
the respondents violated 30 C.F.R. § 56.16002(c).  The citation
also alleges that the violation was of a significant and
substantial nature and was caused by the operator's unwarrantable
failure to comply with the safety standard.

     A hearing was held in these cases in Denver, Colorado.  At
the beginning of the second day of the hearing, counsel for the
parties announced that they reached a settlement of all issues in
these cases.  (Tr. 282-84).  Subsequently, the Secretary filed a
motion for approval of settlement incorporating all of the terms
and conditions of the settlement.

     In the motion, the Secretary states that based on
"additional information presented in the course of this
litigation, counsel for the Secretary has concluded that
insufficient evidence exists to pursue the § 110(c) penalties
against either Mr. DeWild or Mr. Buescher."  (Motion at 3).  The
Secretary agrees to withdrawal the penalties she proposed against
Messrs. DeWild and Buescher.  The Secretary also agrees to reduce
the proposed penalty against Mobile Premix from $2,000 to $1,600.
In reducing the penalty, the Secretary considered "certain
mitigating factors, including the fact that the employees
referenced in the citation had received lockout and safety line
training, as well as the fact that there existed conflicting
evidence regarding the actual hazard present."  (Motion at 4).
Mobile Premix agrees to pay the amended penalty.  The parties do
not seek other modifications to the citation.

     I have considered the representations, documentation, and
the evidence presented at the hearing, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section 110(i) of the Act.

     Accordingly, the motion for approval of settlement is
GRANTED, the penalties against Don DeWild and Keith Buescher are
WITHDRAWN, and Mobile Premix Sand & Gravel Company is ORDERED TO
PAY the Secretary of Labor the sum of $1,600.00 within 30 days of
the date of this decision.  Upon payment of the penalty, these
proceedings are DISMISSED.

                                        Richard W. Manning
                                        Administrative Law Judge

Distribution:

Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)

Laura E. Beverage, Esq., JACKSON & KELLY,
1660 Lincoln Street, Suite 2710, Denver, CO 80264
(Certified Mail)

RWM