.
NATIONAL QUARRIES,
September 17, 1996
WEST 96-204-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET N.W., 6TH FLOOR
                    WASHINGTON,  D.C.  20006


                       September 17, 1996

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :    Docket No. WEST 96-204-M
                 Petitioner   :    A. C. No. 04-00204-05519
                              :
                    v.        :    National Quarries
                              :
NATIONAL QUARRIES,            :
                 Respondent   :

                DECISION DISAPPROVING SETTLEMENT
                  ORDER TO SUBMIT INFORMATION

Before:  Judge Merlin

    This  case  is  before  me upon a petition for
assessment of civil  penalties   under  section
105(d)  of  the Federal Mine Safety  and
Health Act of 1977.  The Solicitor   has
filed   a  motion   to   approve settlements
for the four violations  in this case. A
reduction  in  the  penalties  from $28,500  to
$19,950 is proposed.

The four violations in this case were issued  as
the result of a fatal accident.  MSHA determined
that  proper procedures  for handling a misfired
hole were  not followed, causing  a  miner  to be
fatally injured when he inadvertently drilled into
a charged hole.

I  cannot approve the settlement motion. The
parties  are reminded that the Commission and its
judges bear a heavy  responsibility in settlement
cases pursuant to section  110(k) of the Act. 30
U.S.C. � 820(k); See, S. Rep. No. 95-181, 95th
Cong., 1st Sess. 44- 45, reprinted  in  Senate
Subcommittee  on Labor, Committee on  Human

Resources,  95th  Cong.,  2d Sess.,  Legislative
History  of the Federal  Mine Safety and Health Act
of 1977,  at 632-633 (1978). It is the judge's
responsibility  to determine the appropriate amoun
of penalty, in accordance  with the  six  criteria
set forth 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 (7th Cir. 1984).

The proposed settlement remains a substantial amount.
However, the proposed  reduction  of  30%  also is
substantial.   The  Solicitor has not offered  any
reasons to support the  suggested  settlement.   I
will  not  approve  settlements  where there is no
justification  for  what  I  am  being   asked  to
approve.   That  a fatality is involved, compounds
the error.

This is not the first time this Solicitor has
submitted aninadequate settlement motion. In Bennie
Wayne Curtis, Emp. by Canyon Country Enterprises,
17 FMSHRC  1810  (October   1995),  I  disapproved
a recommended settlement from this Solicitor  in a
section  110(c)  case  where  he  gave no reasons.
Also, in Chandler's Palos Verdes Sand & Gravel, 16
FMSHRC 1926 (August 1994), where an  accident  had
occurred,  I  disapproved  a  proposed  settlement
unaccompanied  by  reasons  and told the Solicitor
that   the  fact  that  the  suggested   penalties
remained  substantial  did  not  in  and of itself
warrant  approval.   In  both  cases the Solicitor
subsequently submitted supplemental  motions which
were eventually approved.  I would think  that  by
now this Solicitor would realize that a settlement
motion  without  reasons  is a waste of everyone's
time.

     In light of the foregoing, it is ORDERED that
the motion for approval of settlement be DENIED.

     It is further ORDERED that within 20 days of the date
of this order the Solicitor submit appropriate information
to support his settlement motion.  Otherwise, this case will
be heard as scheduled.


                          Paul Merlin
                          Chief Administrative Law Judge


Distribution:  (Certified Mail & Telecopied)

J. Mark Ogden, Esq., Office of the Solicitor, U.S. Department
of Labor, Federal Bldg., Room 3247, 300 North Los Angeles
St., Los Angeles, CA 90012

Robert T. Andersen, Jr., Esq., Redwine and Sherrill, 1950
Market  Street,  Riverside, CA 92501

Douglas White, Esq.,  Counsel, Trial  Litigation,  Office  of
the Solicitor, U. S. Department of Labor, Room 414,
4015 Wilson Boulevard, Arlington, VA  22203

/gl