.
BECO CONSTRUCTION COMPANY
September 11, 1995
WEST 95-420-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET, N.W., SUITE 600

                       WASHINGTON, D.C.  20006


                          September 11, 1995

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
 MINE SAFETY AND HEALTH       :
 ADMINISTRATION (MSHA),       :  Docket No. WEST 95-420-M
               Petitioner     :  A. C. No. 10-01907-05505
                              :
          v.                  :
                              :  Portable Crusher No. 2
BECO CONSTRUCTION COMPANY,    :
               Respondent     :

                     ORDER TO SUBMIT INFORMATION

     This case is before me upon a petition for assessment of
a civil penalty under section  105(d) of the Federal Mine  
Safety and Health Act of 1977. The  parties have filed a joint
motion  to approve settlement for the one violation in this 
case.

     Citation No. 4343823 was issued for a violation of 30 
C.F.R. § 56.1000 because the operator did not notify MSHA
when the crusher was moved. The violation was designated 
non-significant and substantial but negligence was evaluated 
as high. The originally assessed  penalty was $1,000. The 
parties request that the citation be modified to reduce 
negligence from high to moderate and  that the proposed 
penalty be reduce to $700.  According  to  the  parties, 
the operator  mistakenly  believed that notification of
the commencement of operations  at  the new location was 
sufficient to comply with the standard.

     I accept the parties representations and agree that 
negligence should be characterized as moderate. However, I
am concerned about the size of the  proposed  settlement
amount in light of the six criteria set forth in section 
110(i) of the Act.  30 U.S.C.  § 820(i).  MSHA in  the 
narrative findings for  special  assessment  considered 
this violation as non-serious.  A $700 penalty for a 
non-serious violation with only moderate negligence on
the part of the operator appears excessive.

     Accordingly, it is ORDERED that within 30 days of the
date of  this order the parties again confer and again 
advise with respect to a proposed settlement amount.


                              Paul Merlin
                              Chief Administrative Law Judge

Distribution: (Certified Mail)

Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. 
Department of Labor, 1111 Third Avenue, Suite 945,
Seattle, WA   98101

Merrily Munther, Esq., Penland, Munther, Boardman, 
350 North 9th, Suite  500,  P. O. Box 199, Boise, ID
83701

/gl