<DOC>
[DOCID: f:p95467.wais]

 
BELLEFONTE LIME COMPANY, INC.
December 11, 1998
PENN 95-467


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          December 11, 1998

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
      MINE SAFETY AND HEALTH    :
      ADMINISTRATION (MSHA),    :    Docket No.  PENN 95-467
               Petitioner       :    A. C. No.  36-07172-05513
          v.                    :
                                :    Gentzel Quarry
BELLEFONTE LIME COMPANY, INC.,  :
               Respondent       :

                        DECISION ON REMAND

Before:  Judge Weisberger

     On November 30, 1998, the Commission issued a decision in
the above captioned case remanding it for "consideration of
whether the violation had been caused by Bellefonte's
unwarrantable failure to comply with the standard, and for the
reassessment of the civil penalty if appropriate" (slip op., p.2,
20 FMSHRC __).

     In analyzing the level of Respondent's negligence, I note
that none of Petitioners witnesses who observed falling rocks
brought this hazard to the attention of Respondent.[1]

     Also, I note that none of Respondent's witnesses observed
materials falling from the cited areas, no reports concerning
falling materials were ever made by the employees, no precursors
to a slope failure were visible prior to the issuance of the
citation, and that Respondent expected that miners would be out
of the areas in about one shift's time.

     On the other hand, Peters indicated that it was company
policy that miners not work in the cited areas when it rained.
According to Peters, one of the reasons for this policy was the
possibility that rain could loosen material on the pile.  Hence,
it might be inferred that Peters was aware of the possibility
that the cited area was hazardous.  There is no evidence that
Respondent took any specific precautions to mitigate the possible
hazards.  In addition, 5 months prior to the inspection at issue,
a section 107(a) imminent danger order was issued to Respondent
citing Respondent for violating section 56.3200, supra, in
another part of the quarry at issue.  Within this framework of
evidence, I find that the level of Respondent's negligence to
have been more than ordinary, and reached the level of aggravated
conduct.  I thus conclude that the violation resulted from its
unwarrantable failure.

     Since this conclusion is based on the same factors
previously set forth in my initial decison in discussing the
level of Bellefonte's negligence for purpose of assessing a
penalty, I find that it is not appropriate herein to reassess the
penalty I previously assessed.



                                Avram Weisberger
                                Administrative Law Judge



Distribution:

Yoora Kim, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)

John A. Snyder, Esq., McQuaide, Blasko, Schwartz, Fleming &
Faulkner, Inc., 811 University  Drive, State College, PA 16801-
6699 (Certified Mail)

dcp


**FOOTNOTES**

     [1]:/ Moerschbacher was asked whether he told his supervisor
about rocks that fell down, and he said that he did.  However,
his testimony regarding what he specifically told his supervisor,
Jim Peters is as follows: "I told him that I thought it would be
smart to try to bench that to try to make it safer" (sic) (Tr.
173).  His testimony is thus somewhat ambiguous as to whether he
explicitly told Peters about rocks that had fallen down.  I note
that Peters who acknowledged that he sent a bulldozer into the
cited area at the suggestion of an employee, denied that any
employee informed him that the cited areas were unsafe.  I
observed Peters' demeanor, and find his testimony credible on
this point.