<DOC>
[DOCID: f:ke94957.wais]

 
JERICOL MINING INCORPORATED
February 7, 1995
KENT 94-957


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET, N.W., SUITE 600

                       WASHINGTON, D.C.  20006


                           February 7, 1995

SECRETARY OF LABOR,          :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     :  Docket No. KENT 94-957
          Petitioner         :  A. C. No. 15-07986-03665
                             :
          v.                 :  Darby Mine
JERICOL MINING INCORPORATED, :
          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 parties have 
filed a joint motion to approve settlements for the two
violations in this case. A reduction in the penalties
from $5,700 to $2,298 is proposed.

     Citation No. 4249131 was issued as a 104(d)(1) 
citation for a violation of 30 C.F.R. � 75.342(a)(4)  
because the methane monitor on a continuous mining machine
was not maintained. The methane monitor would not 
deenergize the control circuit on the continuous miner 
because the monitor module was disconnected from the 
control circuit. The continuous miner had been operating
for four hours. The inspector had also detected methane at
seals deeper in the mine from where the miner was cutting
coal. According to the joint motion filed by the parties,  
the operator's witnesses would challenge the inspector's  
assessment of the presence of methane. The operator would  
present testimony that a repairman was working on the 
monitor at the time the citation was issued and that 
parts for the repair were delivered while the inspector  
was on the section. In addition, the foreman was taking  
regular methane readings with a hand-held methane detector
during the time the monitor was being repaired. Based on
the operator's representations, the parties  agree to 
reduce the penalty from $4,200 to $1,298 but the citation  
would remain as written.

     Order No. 4249190 was issued as a 104(d)(2) order for
a violation of 30 C.F.R. � 75.202(a) because there were
loose ribs along the haulage roadway. According to the
parties, the operator would present evidence that the
ribs were more stable because they could not be pulled
down single-handedly but required the use of a four foot
bar used to pry down slate. Based on the operator's
representations, the parties agree to reduce the penalty
from $1,500 to $1,000 but the citation would remain as
written.

     The motion as presented cannot be approved. 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). A proposed reduction must be based upon 
consideration of these criteria.

     The parties in the instant motion have merely stated
their positions with respect to the violations.  The
motion sets forth unresolved conflicts between the 
parties on the evidence.  Under the provisions of the 
Act, as set forth above, I cannot approve a settlement 
based upon the representation of such conflicts. I may 
only approve a settlement justifiable under the six 
criteria of section 110(i), supra. Accordingly, the
parties must explain why the proposed penalties should
be reduced in light of the six criteria.  For instance, 
if the facts indicate a lesser degree of gravity or
negligence than first thought, the parties, and most
especially, the Solicitor must say so. This is especially 
true where as here the penalty reductions are large but
the special findings remain unchanged.

     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 motion for settlement.  
Otherwise, this case will be set for further proceedings.


                        Paul Merlin
                        Chief Administrative Law Judge


Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Rd., Suite 
B-201, Nashville, TN  37215

Mr. Jim Baker, General Superintendent, Jericol Mining
Inc., General Delivery, Holmes Mill, KY 40843

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

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