[DOCID: f:va9621.wais] EASTERN RIDGE LIME COMPANY July 15, 1998 VA 96-21-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 July 15, 1998 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. VA 96-21-M Petitioner : A. C. No. 44-00040-05559 v. : : Eastern Ridge Lime Company, L P EASTERN RIDGE LIME COMPANY,L P, : Respondent : DECISION ON REMAND Before: Judge Weisberger This matter is before me based on a remand order issued by the Commission on July 2, 1998, for further consideration consistent with the decision in the case issued by the United States Court of Appeals for the Fourth Circuit (Eastern Ridge Lime, L P v. FMSHRC No. 97- 1579 (4th Cir. April 13, 1998). In its decision, the Courts of Appeals remanded "for further fact finding and analysis of the penalties to be assessed" (slip op. at 7). In order to clarify my previous decision, (19 FMSHRC 398 (February 1997)), and upon reconsideration , I find that, in assessing a penalty, and evaluating the level of gravity of the cited violations, it is not necessary to make a specific finding of causation. The high level of gravity is based on the fact that the violation contributed to a fatal roof fall. Further, in evaluating a penalty, I place most weight on my finding that, for the reasons discussed in the original decision, the level of Respondent's negligence constituted aggravated conduct. Specifically, the record establishes that Respondent repeatedly ignored the warnings of its workers regarding observed unsafe conditions. Accordingly, I reiterate my initial findings regarding the penalty to be assessed. It is ORDERED the Respondent shall pay a total civil penalty of $85,000 for the violations cited in Order No. 4289773 and Citation No. 4389772. Avram Weisberger Administrative Law Judge Distribution: Yoora Kim, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Suite 420, Arlington, VA 22203 (Certified Mail) Thomas B. Weaver, Esq., John F. Cowling, Esq., Armstrong, Teasdale, Schlafy & Davis, One Metropolitan Square, Suite 2600, St. Louis, MO 63102-2740 /dcp