.
R. J. TAGGART CONSTRUCTION COMPANY, INCORPORATED
August 23, 1996
WEST 96-245-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         August 23, 1996

SECRETARY OF LABOR,            :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :    Docket No. WEST 96-245-M
               Petitioner      :    A. C. No. 35-03287-05513
                               :
          v.                   :
                               :
R. J. TAGGART CONSTRUCTION     :    Taggart Portable
  COMPANY, INCORPORATED,       :
               Respondent      :

                 DECISION DISAPPROVING SETTLEMENT
                   ORDER TO SUBMIT INFORMATION

Before:  Judge Merlin

     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.  A  reduction in the
penalty from $9,500 to $6,000 is proposed.  A fatality is involved.

     Citation No. 3918001 was issued as a 104(d)(1) citation for
a violation of 30 C.F.R. § 56.9200(d) because a miner, who was being
trained on a front-end loader, was riding unsecured on the outside of
the operator's cab.  The loader backed over a large rock causing the
miner to fall to the ground.  He was run over by one of the loader
tires and killed.

     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 amount 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 violation in this case is the ultimate in gravity.  However, the
settlement motion fails to discuss any of the facts surrounding the
fatality or identify the reasons for the proposed reduction.The parties
have submitted nothing more than a boilerplate motion.  I cannot approve
any penalty for this fatality when I do not know what happened. There is no
excuse for the Solicitor to submit such a motion which accomplishes nothing
except to create additional and unnecessary work for the Office of the Chief
Administrative Law Judge.

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

     It is further ORDERED that within 30 days of the date of this order the
parties submit appropriate information to support their settlement motion.
Otherwise, this case will be set for hearing.


                                          Paul Merlin
                                          Chief Administrative Law Judge


Distribution: (Certified Mail)

Faye von Wrangel, Esq., Office of the Solicitor, U.S. Department of Labor,
1111 Third Avenue, Suite 945, Seattle, WA 98101

Mr. Robert J. Fisher, Accountant, P. O. Box 7298, Salem, OR 97303

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

/gl