.
KELLYS CREEK RESOURCES INC.
March 26, 1997
SE 94-639


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


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


                         March 26, 1997

SECRETARY OF LABOR,                 :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA),            :     Docket No. SE 94-639
                      Petitioner    :     A.C.  No40-02934-03549
                                    :
                    v.              :     Mine No. 78
                                    :
KELLYS CREEK RESOURCES INC.,        :
                      Respondent    :
                                    :


                       DECISION ON REMAND

Before:  Judge Weisberger

On March 12, 1997, the Commission issued a decision
reversing my determination (17 FMSHRC 1325
(August 1995)), that the violation
conceded by Kellys Creek Resources, Inc.  ("Kellys
Creek"),  was not significant and substantial  and
was not the  result  of its unwarrantable failure,
and    remanding   this   matter    for    penalty
reassessment.

Based on the Commission's finding that the
violation was as the result of Kellys Creek's
unwarrantable failure, I  find that the level of
Kellys Creek's negligence to  constitute more than
ordinary negligence, and to be aggravated conduct.
I previously found that the violation  constituted a
very  high  level  of  gravity.  I reiterate  this
finding in light of the Commission's determination
that the violation was S  & S.  On the other hand,
the level of the penalty to  be assessed should be
reduced taking into account its  effect  on Kellys
Creek's  ability  to continue in business for  the
reasons set forth in  Kellys  Creek  Resources, 17
FMSHRC 1085, 1092,
  (June  29,  1995).   Taking  all the above  into
account,  I  find  that  a  penalty  of   $500  is
appropriate.





                                       Avram Weisberger
                                       Administrative Law Judge



Distribution:

Thomas  A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite B-201, 2002 Richard  Jones  Road,  Nashville,  TN
37215-2862 (Certified
Mail)

Mr.  Hollis Rogers, Kellys Creek Resources, Inc., Route 4, Box
662, Whitwell, TN 37397 (Certified Mail)


                                      /mh