Island Creek Coal Company

Plain-English summary

Island Creek Coal Company operated the VP 8 underground coal mine in Virginia. After high methane readings led MSHA to issue a section 107(a) withdrawal order, the United Mine Workers of America sought compensation for 41 miners who lost the rest of their shift. The Commission held that the miners were working during the shift and were idled by the withdrawal order, even though the operator had begun evacuating miners before the order and continued paying some miners temporarily. It reversed the judge's denial and remanded for calculation of the compensation owed for the remaining 2.5 hours of the shift. Commissioner Verheggen concurred in the result but reasoned that the compensation period began when miners were taken off the clock.

Decision snapshot

• Governing provisions: 30 U.S.C. § 821 and 30 U.S.C. § 817(a).
• Outcome: The ALJ's denial of compensation was reversed, and the case was remanded to calculate compensation and interest for the affected miners.
• Key point: Miners can qualify for statutory compensation when an imminent-danger withdrawal order idles them during their shift, even if an operator began evacuation before the order.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                          July 31, 2000

UNITED MINE WORKERS OF AMERICA, :
LOCAL UNION 2232, DISTRICT 2O, :
on behalf of MINERS : Docket No. VA 99-79-C
:
v. :
:
ISLAND CREEK COAL COMPANY :

BEFORE: Marks, Riley, and Verheggen, Commissioners1

                                          DECISION

BY: Marks and Riley, Commissioners

    This is a compensation proceeding filed by Local Union 2232, District 20, United Mine

Workers of America (“UMWA”) against Island Creek Coal Company (“Island Creek”), pursuant
to section 111 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 821 (1994)
(“Mine Act” or Act).2 The Department of Labor’s Mine Safety and Health Administration

   1
      Chairman Jordan and Commissioner Beatty recused themselves in this matter and took

no part in its consideration. Pursuant to section 113(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been designated to
exercise the powers of the Commission.
2
Section 111 of the Act provides,

            If a coal or other mine or area of such mine is closed by an order
            issued under section 103, section 104, or section 107, all miners
            working during the shift when such order was issued who are idled
            by such order shall be entitled, regardless of the result of any
            review of such order, to full compensation by the operator at their
            regular rates of pay for the period they are idled, but for not more
            than the balance of such shift. If such order is not terminated prior
            to the next working shift, all miners on that shift who are idled by
            such order shall be entitled to full compensation by the operator at
            their regular rates of pay for the period they are idled, but for not
            more than four hours of such shift.

                                     22 FMSHRC 811

Page 2

(“MSHA”) issued a withdrawal order under section 107(a) of the Act, 30 U.S.C. § 817(a), as a
result of high methane readings in Island Creek’s VP 8 Mine. Administrative Law Judge Avram
Weisberger denied the application for compensation. 21 FMSHRC 1093 (Oct. 1999) (ALJ). The
UMWA filed a petition for discretionary review which the Commission granted. For the reasons
that follow, we reverse the decision of the judge and remand the proceeding for calculation of
compensation owed to miners.

                                            I.

                           Factual and Procedural Background

    Island Creek operates the VP 8 Mine, an underground coal mine in southwestern

Virginia. 21 FMSHRC 1093. On December 2, 1998, MSHA Inspector David Fowler examined
three entries in the mine. Id. UMWA walk-around representative Billy Shelton and Island Creek
mine safety inspector Michael Canada accompanied Fowler on the ride underground. Id. Fowler
and Canada got off the ride and entered the return airway, while Shelton continued to the bottom
of the Deskins B shaft to wait and pick them up. Tr. 14. Fowler and Canada each carried a
digital methane detector. 21 FMSHRC at 1093. As they reached the No. 1 west development
area, Fowler’s methane detector registered 2.1 percent, while Canada’s detector indicated 1.8
percent methane. Id. at 1093-94.

    Fowler and Canada continued to walk further down the entry to determine the areas

affected and to locate the source of the methane. Id. at 1094. At the No. 1 entry, east of the No.
19 seal, Fowler and Canada took additional methane readings, with Fowler’s monitor indicating a
level of 4.5 percent methane and Canada’s several tenths of a percentage less. Id. and n.2.
Shortly after 11:00 a.m., Shelton rejoined Fowler and Canada. Tr. 15. Fowler asked Shelton to
retrieve Fowler’s Riken methane detector from the vehicle in which the three had been riding. 21
FMSHRC at 1094. The Riken detector is more accurate than digital methane monitors. Id.
Canada told Fowler that, if the Riken detector gave a methane reading of 4.5 percent, he would
have to pull his miners based on Virginia law. Id.

    At 11:30 a.m., Shelton returned with the Riken detector, which indicated that methane

had accumulated to a level of 4.5 percent at the No. 2 development area. Id. Canada left Fowler
and Shelton to telephone the mine dispatcher to notify him to withdraw the miners due to the
high level of methane. Id. Fowler and Shelton continued south in the No. 1 entry and took
readings as high as 10 percent in the No. 4 and 5 development areas. Id. They discovered that
the plaster had fallen off the seals separating those areas from the gob, indicating a possible
source of the methane. Id.

   Around 12:00 noon, Canada rejoined Fowler and Shelton in the No. 4 development area.

Id. Fowler took methane readings in the range of 8 to 9 percent. Id. Fowler then told Canada he
was going to issue a section 107(a) withdrawal order, since he knew the origin of the methane

                                    22 FMSHRC 812

Page 3

and the areas of the mine affected.3 Id. and id. at 1098 n.4.

    It was stipulated that, at 12:12 p.m., Fowler issued a section 104(a) citation4 and a section

107(a) withdrawal order.5 Id. at 1094 n.1, 1095. Fowler testified at trial that it was at that time
that he determined the miners should be withdrawn. Id. at 1095. The order, which was reduced
to writing after Fowler exited the mine, described the conditions warranting the issuance of the
order and identified the areas affected by the withdrawal order as the No. 4 and 5 developments.6
Id.; UMWA Ex. A. Sometime after 1:00 p.m., Fowler encountered some miners along the
trackway inside the mine and told them to go outside until he could determine why the methane
was being liberated. 21 FMSHRC at 1095; Tr. 71-73. Fowler told mine superintendent Terry
Suder to make sure that everyone was out of the mine. 21 FMSHRC at 1095.

    Island Creek continued to pay all the miners including any who evacuated to the surface

in the hope that a correction to decrease the methane level would occur quickly but later released
them to go home. Tr. 144-145. Island Creek Superintendent Suder estimated that it took 45 to
50 minutes to evacuate the miners from the mine. Tr. 145. At trial, the parties stipulated that the
first miners exited the mine at approximately 1:30 p.m. 21 FMSHRC at 1095.

   3
     While Canada testified that Fowler did not ask him to withdraw miners from the mine,

he did not deny that Fowler told him that he had a section 107(a) withdrawal order. Tr. at 118­
20.
4
The citation alleged a violation of 30 C.F.R. § 75.323(e), which prohibits methane
levels exceeding 2 percent in a split of air. 21 FMSHRC at 1094 n.1. The citation was
ultimately vacated. Id.
5
Section 107(a), 30 U.S.C. § 817(a), provides, in relevant part,

            If, upon any inspection or investigation . . . , an authorized
            representative of the Secretary finds that an imminent danger
            exists, such representative shall determine the extent of the area of
            such mine throughout which the danger exists, and issue an order
            requiring the operator of such mine to cause all persons, . . . , to be
            withdrawn from, and to be prohibited from entering such area until
            an authorized representative of the Secretary determines that such
            imminent danger and the conditions or practices which caused such
            imminent danger no longer exist.
   6
     Fowler explained at trial that he referenced the No. 4 and 5 developments in the order

because they were the direct source of the methane, but the order would cause everyone
underground to be evacuated because of the explosive range of methane. Tr. 87-88.

                                      22 FMSHRC 813

Page 4

    Subsequently, the UMWA filed a complaint for compensation requesting 2 ½ hours

compensation for 41 miners, which included the remaining time on the 8:00 a.m. to 4:00 p.m.
shift. Compl. at 2 and Ex. C. Island Creek opposed the complaint, and a hearing was held.

     In his decision, the judge relied on the Commission’s decision in Local Union 1261,

District 22, UMWA v. Consolidation Coal Company, 11 FMSHRC 1609 (Sept. 1989) (“Local
Union 1261”), aff’d sub nom. Local Union 1261 v. FMSHRC, 917 F.2d 42 (D.C. Cir. 1990),
which he concluded was controlling authority for the issues before him. 21 FMSHRC at 1095.
The judge stated that the primary issue before him was “whether miners are entitled to
compensation under . . . section 111 when the mine operator has voluntarily closed the mine for
safety reasons prior to the issuance of an order described in section 111, but where such an order
is subsequently issued.” Id. The judge found that at 11:30 a.m., Canada told the dispatcher to
get everyone out of the mine due to elevated methane. Id. at 1097. The judge further found that,
when MSHA inspector Fowler issued the section 107(a) withdrawal order, the order to evacuate
the miners had already been given by Island Creek. Id. Therefore, the judge concluded that,
under the holding of Local Union 1261, MSHA’s withdrawal order did not effectuate the
removal of the miners and, thus, no miners were working when Fowler issued the withdrawal
order. Id. The judge rejected the UMWA’s contention that Island Creek’s decision to remove
miners was made in anticipation of MSHA’s issuance of a section 107(a) order in order to avoid
liability for compensation of the miners. Id. at 1098. Accordingly, the judge dismissed the
compensation proceeding. Id.

                                            II.

                                       Disposition

    The UMWA argues the judge’s finding that the miners were not working when MSHA

issued its section 107(a) order is not supported by substantial evidence. UMWA Br. at 6. In
support, the UMWA relies on the stipulation that the first miners withdrawn appeared on the
surface at 1:30 p.m. and that it took 45 to 50 minutes for miners to exit the mine following the
evacuation order. Id. at 6-7. Therefore, the UMWA contends that miners could only have begun
exiting the mine after 12:30 and after the MSHA inspector issued the section 107(a) order. Id. at
7; Reply Br. at 3-5. Alternatively, the UMWA argues that the miners were still in the mine
working, even if evacuating, when the section 107(a) order issued. UMWA Br. at 7-8. The
UMWA further argues that, even if the miners were not working at the time the section 107(a)
order issued, nevertheless they qualified for relief because they were “working during the shift
when the citation was issued,” as required by section 111. Id. at 8. The UMWA distinguishes
the Commission’s decision in Local Union 1261 because there miners were withdrawn from the
mine and paid for the remainder of their shift on a day prior to MSHA’s arrival and withdrawal
order. Id. at 9-11. Finally, the UMWA argues that the Commission should not allow an operator
to withdraw miners in anticipation of a withdrawal order in order to avoid section 111
compensation liability. Id. at 11-13.

                                    22 FMSHRC 814

Page 5

    Island Creek responds that the UMWA inaccurately stated in its brief some of the facts

regarding the timing of events at the mine. I.C. Br. at 4-5. Island Creek further argues that the
essential facts in the case are not in dispute. Id. at 5-6. Island Creek contends that the
disposition of this case is governed by the Commission’s decision in Local Union 1261, that the
judge correctly applied the decision to the facts of the case, and that the MSHA inspector did not
bear the brunt of miner animus because it was the operator who withdrew the miners. Id. at 6-7.
Finally, Island Creek argues that the record does not support the UMWA’s speculation that the
miners were evacuated from the mine so it could avoid section 111 compensation liability. Id. at
8-9.

   When reviewing an administrative law judge’s factual determinations, the Commission is

bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as a reasonable
mind might accept as adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that “fairly detracts” from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

    Section 111 of the Mine Act provides for compensation for the balance of a shift to

miners who are “working during the shift” when a section 107 order issues if they are “idled” by
the order. It is apparent that the miners in the VP 8 mine were working during the shift in which
the withdrawal order issued. Our focus in this proceeding then is whether the miners were idled
by the MSHA order. In the Local Union 1261 decision, the Commission reviewed an earlier
application of the requirement. The Commission stated that the term “idled” includes both a
physical removal from the mine and a prohibition from entering the mine.7 11 FMSHRC at 1612
n.4 (citations omitted). The record in the instant proceeding does not reflect that either event had

   7
        The primary issue in Local Union 1261 was whether miners were working during the

shift when MSHA issued its withdrawal order or were on the next working shift. 11 FMSHRC at
1615-16. In addressing the requirement in section 111 that miners must be “idled,” the
Commission stated that, “We do not disavow the Commission’s earlier interpretation of ‘idled’
. . . ” Id. at 1615. Local Union 1261 is therefore instructive on the meaning of “idled” in section

111. Island Creek further argues that Local Union 1261 is controlling on the disposition of
     entitlement to compensation in this proceeding. However, that decision dealt with the
     entitlement of miners to shift compensation for the day MSHA issued an order closing the mine,
     when the operator had voluntarily closed its mine on the day before, thereby barring miners on
     subsequent shifts from entering the mine. Id. at 1611. The complaint for miner compensation in
     Local Union 1261 therefore involved a markedly different set of facts and ultimately involved a
     different provision of section 111 (“second sentence compensation”) than is involved in this
     proceeding (“first sentence compensation”). See id. at 1611-12.

                                      22 FMSHRC 815
     

Page 6

occurred at the VP 8 mine prior to the section 107(a) withdrawal order.8

    The factual underpinning of the judge’s decision was that “the mine operator had

voluntarily closed the mine for safety reasons prior to the issuance of an order described in
section 111. . . .” 21 FMSHRC at 1095; see also id. at 1097. The judge found that Canada had
contacted the mine dispatcher to evacuate the mine around 11:30 a.m. However, Canada’s
actions, while prudent and commendable, are not by themselves determinative of whether
miners were idled as a result of his telephone call or as a consequence of the subsequent section
107(a) withdrawal order. Even if some miners were evacuated to the surface as a result of
Canada’s call, the record does not establish that all miners were evacuated or that those who were
evacuated were barred from going back in the mine before Fowler issued the section 107(a)
withdrawal order. Indeed, the testimony of Island Creek’s own witness shows that, after mine
superintendent Suder learned of the withdrawal order, sometime after 1:00 p.m., he called to
release miners on the surface, who were still being held and paid by Island Creek. Tr. 142-44.
Thus, the status of these miners was unchanged even after Island Creek ordered the evacuation of
the mine. Consequently, the judge’s determination that the mine was closed and that miners
were idled prior to issuance of the withdrawal order is contrary to the overwhelming weight of
record evidence.

     As the Commission stated in Local Union 1261, “[A] miner who has been previously

withdrawn from a mine can still be ‘idled’ by a subsequently issued withdrawal order in the sense
that the miner is barred by the order from returning to work and that miners so idled may be
entitled to compensation.” 11 FMSHRC at 1615. Indeed, as Suder testified, until he found out
about the withdrawal order, he expected that the miners who were held on the surface in pay
status would be sent back into the mine. Tr. at 144-45. The Commission noted in Local Union
1261 that an important legislative purpose in adopting section 111 was to insulate the mine
inspector from any repercussions that might arise from the withdrawal of miners and temporarily
depriving them of their livelihood. 11 FMSHRC at 1615 (citation omitted). Clearly, the section
107(a) withdrawal order, which directly resulted in the operator taking the miners out of pay
status, embodied the precise harm that Congress was concerned about when it drafted section

111. Therefore, its application here to compensate miners, some of whom were out of the mine
     but still on mine property and being paid, is consistent with this legislative purpose.

     8
     While Commissioner Marks welcomes Commissioner Verheggen’s joining in the
     result, he does not agree that the Commission’s interpretation of the term “idled” needs to be
     disturbed. See slip op at 9-10. In his concurrence, Commissioner Verheggen correctly points out
     that the miners in this case, because they were paid by Island Creek for the time they spent
     exiting the mine and waiting on the surface, cannot be considered to have been “idled” under the
     terms of the statute until such time that they actually began to lose pay that they otherwise would
     have been due. Id. at 10. However, such an analysis only establishes the start of the first
     sentence compensation period; it does not answer the ultimate question this case presents, which
     is what caused the miners to be idled.

                                     22 FMSHRC 816
     

Page 7

    Further, Island Creek’s earlier evacuation notice did not result in the complete withdrawal

of miners from the mine and the cessation of all work activities. Following the mine’s
evacuation notice, Fowler met rank-and-file miners in the mine and had to tell them to leave, and
he instructed mine superintendent Suder to make sure everyone was out of the mine.9 21
FMSHRC at 1095. Thus, we conclude that substantial evidence does not support the judge’s
determination that the mine had effectively closed prior to the Fowler’s issuance of the section
107(a) withdrawal order.

     Finally, Island Creek stipulated that miners did not exit the mine until 1:30 p.m. Given

the testimony of Canada and Suder that it took 45 minutes to an hour to evacuate the mine (Tr.
108, 145), miners could not have begun evacuating the mine until 12:30 p.m. at the earliest, after
the section 107(a) withdrawal order, which issued at 12:12 p.m. While this stipulation alone
establishes entitlement of the miners to compensation, there is other record evidence that
establishes that miners continued in pay status and were in the mine well after the Island Creek
evacuation order, so that it is clear that they were affected by the MSHA order.

    In short, given the judge’s findings, the stipulation, and the testimony of Island’s Creek’s

own witnesses, substantial evidence does not support the judge’s ultimate finding that “the
removal of the miners previously ordered to be withdrawn by Canada, was not effectuated by
Fowler’s order.” 21 FMSHRC at 1097. Rather, the evidence supports only one conclusion —
that the miners were “idled” by the withdrawal order issued by Fowler and, therefore, are
entitled to compensation for the remainder of the shift.

   9
       It is evident from the record that this group of miners was not a repair crew authorized

under section 104(c) of the Act, 30 U.S.C. § 814(c), because such a crew must be assigned by the
operator to “eliminate the condition described in the [section 107(a) withdrawal] order.” Canada
testified that, when he told mine superintendent Suder about the section 107(a) withdrawal order,
Suder was shocked and surprised to learn of the order. Tr. 128-29. Thus, Suder could not have
ordered the repair of a problem, based on the order, about which he was unaware. In any event,
Canada and Fowler ordered the miners out of the mine. Tr. 128-29.

                                     22 FMSHRC 817

Page 8

                                          III.

                                      Conclusion

    For the foregoing reasons, we reverse the decision of the administrative law judge and

remand the case to the judge for calculation of the compensation due miners for the 2 ½ hours of
the shift during which they were idled by the section 107(a) withdrawal order.

                                         Marc Lincoln Marks, Commissioner




                                         James C. Riley, Commissioner




                                   22 FMSHRC 818

Page 9

Commissioner Verheggen, concurring in result:

   Like my colleagues in the majority, I would reverse the judge’s decision in this matter and

remand the case for calculation of the compensation and interest due the miners. I write
separately, however, because the grounds on which I base my decision differ from those of my
colleagues, as I explain below.

   The provisions of the first sentence of section 111 of the Mine Act at issue here provide

that when miners are idled by an imminent danger order, they “shall be entitled . . . to full
compensation by the operator at their regular rates of pay for the period they are idled” during the
shift when the order was issued. 30 U.S.C. § 821. Section 111 was intended to ensure that:

           [M]iners who are withdrawn from a mine because of the issuance
           of a withdrawal order shall receive certain compensation during
           periods of their withdrawal. This provision . . . is not intended to
           be punitive, but recognizes that miners should not lose pay because
           of . . . an imminent danger which was totally outside their control.
           It is therefore a remedial provision . . .

S. Rep. No. 95-181, at 47 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of
1977, at 634-35 (1978) (emphasis added). In my view, given the clear purpose of section 111 to
recompense miners for pay lost as a result of an imminent danger order, miners are “idled” for
purposes of determining their eligibility for section 111 pay when they in fact actually cease
being paid — when they are, in other words, “taken off the clock” because an imminent danger
order has been issued.

    My interpretation of section 111 differs somewhat from my colleagues, who view the

term “idled” as including “both a physical removal from the mine and a prohibition from entering
the mine.” Slip op. at [5]. But here, Island Creek continued to pay its miners who were held on
the surface in the hope that the problem which caused elevated methane levels would be
corrected. Tr. 144-45. Mr. Suder testified:

                   A       . . . We thought, you know, if this is just a small
           item, we can correct it and we can get back to work. Until I found
           out the particulars, we held the men.

                   Q      Okay. And since you held them, you paid them
           until they were released to go home?

                   A      Yes.

Id.

                                     22 FMSHRC 819

Page 10

    By 1:30 p.m. on the day in question, the problem was not corrected, and the miners were

barred from reentering the mine because of the section 107 order in force by then10 — and this is
when Island Creek discontinued paying the miners and released them to go home. Tr. 144-45. I
also note that the UMWA’s complaint requests 2½ hours of compensation, i.e., for the period
from 1:30 p.m. to 4:00 p.m., the remaining time on the 8:00 a.m. to 4:00 p.m. shift when the
miners were sent home. Compl. at 2 and Ex. C. The purpose of section 111 is to recompense lost
pay, regardless of whether miners have been physically removed from the mine and are
prohibited from reentering it. Thus, whether evacuation of the miners had been ordered in this
case before the section 107 order was issued is irrelevant. The relevant question is instead
whether the miners have, in fact, lost compensation, to which they otherwise would have been
entitled, as a result of the section 107 order.11

   10
       I believe this answers the question Commissioner Marks poses in his footnote

responding to my concurrence, i.e., “the ultimate question this case presents, which is what
caused the miners to be idled.” Slip op. at [6 n.8]. At the time the miners were taken off the
clock at 1:30 p.m., Island Creek could have continued paying them to wait for the methane
problem to be corrected — in which case, the miners would not have been “idle” for purposes of
section 111. When the company opted instead to discontinue paying the miners and release them
to go home (Tr. 144-45), at that time, all the miners would have been able to do was wait because
the section 107 order in force by then barred them from going back underground. In other words,
the circumstances surrounding “the start of the first sentence compensation period” (slip op. at 6
n.8) in turn establish “what caused the miners to be idled” in this case.
11
In Local Union 1261, Dist. 22, UMWA v. FMSHRC, the District of Columbia Circuit
opined in essence that to be idled for purposes of section 111, miners would have to be
“‘on-the-job in the mine.’” 917 F.2d 42, 47 (D.C. Cir. 1990). I do not believe that the
interpretation I offer here of the first sentence of section 111 is inconsistent with this holding.
Although the miners being held at the surface at the VP 8 Mine were not “in the mine” in the
sense that they were underground, they were certainly still on the mine property. Moreover, the
miners were “on-the-job” insofar as they were still being paid, albeit paid to do nothing but wait
for further orders, a not uncommon situation for workers to be in on mine sites — or on any other
job site of any description. As for the Commission case which the D.C. Circuit was reviewing,
Local Union 1261, Dist. 22, UMWA v. Consolidation Coal Co., 11 FMSHRC 1609 (Sept. 1989),
I agree with my colleagues that it “involved a markedly different set of facts and ultimately
involved a different provision of section 111 . . . than in involved in this proceeding.” Slip op. at
[5 n.7].

                                     22 FMSHRC 820

Page 11

    I thus find that the miners in this case, who were barred from reentering the mine by the

section 107 order, then “idled” when taken off the clock, are entitled to compensation under
section 111, and I join my colleagues in reversing the judge and remanding the case to him so
that he may calculate an award of compensation and interest.

                                         Theodore F. Verheggen, Commissioner




                                    22 FMSHRC 821

Page 12

Distribution

Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031-2215

Elizabeth Chamberlin, Esq.
Robert Vukas, Esq.
Consol Inc.
1800 Washington Road
Pittsburgh, PA 15241

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                               22 FMSHRC 822