<DOC>
[DOCID: f:y97-29m.wais]

 
WEBSTER DUDLEY SAND AND GRAVEL, INC.
February 18, 1998
YORK 97-29-M


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          February 18, 1998

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
      MINE SAFETY AND HEALTH    :
      ADMINISTRATION (MSHA),    :    Docket No.  YORK 97-29-M
               Petitioner       :    A. C. No.  19-00370-05515
          v.                    :
                                :    Webster Plant
WEBSTER DUDLEY SAND AND         :
      GRAVEL, INC.,             :
               Respondent       :

            ORDER DENYING MOTION TO APPROVE SETTLEMENT
                               AND
                        NOTICE OF HEARING

      In this civil penalty case, counsel for the Secretary has
filed a motion to approve a proposed settlement.  The motion is
inadequate, and it is DENIED.

     The motion states the parties believe payment by the
Respondent of half the penalty originally proposed is "in the
public interest and will further the intent and purpose of the
... Act."  The motion asks that I accept on faith the
representation that "counsel for the Secretary reviewed the
violations cited and the data which formed the basis for the
proposed assessment and ... deter-mined the [settlement amount]
is fair and equitable."

     While it is reassuring to know counsel has concluded the
settlement "is fair and equitable," under the Act, the ultimate
judgement on the validity of this conclusion rests with me.  This
means that I too must review the violations cited and the data
which form the basis for the proposed settlement.  To do so I
must know the facts that support the proposed penalties agreed to
by the parties.  This is why the Commission's regulations
contemplate the moving party explain the reasons for the proposed
settlement (20 C.F.R. § 2700.31), and why, when no reasons are
given and there is no basis upon which to judge the proposed
settlement, the motion must be denied.

     Unless, an acceptable motion to approve the settlement is
filed and approved within the next 10 days, the parties are
advised the matter will be heard at 8:30 a.m., Friday, March 13,
1998, in Worcester, Massachusetts.  A specific hearing site will
be designated later.  The requirements of the previously issued
notice of hearing are reinstated.


                                David Barbour
                                Administrative Law Judge

Distribution:

Ralph R. Minichiello, Esq., Office of the Solicitor, U. S.
Department of Labor, One Congress Street, 11th Floor, P. O. Box
8396, Boston, MA 02114 (Certified Mail)

Dorothy Halloran, Office Manager, Webster Dudley Sand and Gravel,
Inc., P. O. Box 186, Webster, MA 01570  (Certified Mail)

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