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[DOCID: f:lake9645co.wais]

 
AKZO NOBEL SALT CO.
September 7, 2000
LAKE 96-45-PM



            FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1730 K STREET NW, 6TH FLOOR
                        WASHINGTON, D.C.  20006

                           September 7, 2000

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       :  Docket Nos. LAKE 96-45-RM
                                   :              LAKE 96-65-RM
AKZO NOBEL SALT, INC.              :              LAKE 96-66-RM
                                   :              LAKE 96-80-RM


BEFORE:  Jordan, Chairman; Riley, Verheggen, and Beatty,
Commissioners

                              ORDER

BY:  THE COMMISSION

     In this consolidated civil penalty and contest proceeding,
arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 801 et seq. (1994), the Commission reversed the decision
of Administrative Law Judge George Koutras to vacate a citation
issued to Akzo Nobel Salt, Inc. ("Akzo"), charging a violation of
the two-escapeway requirement of 30 C.F.R.
� 57.11050(a).  21 FMSHRC 846 (Aug. 1999).  A Commission majority
held that the operator, by failing to provide two escapeways at
all times when miners were underground, had violated the plain
terms of the regulation.  Id. at 853 (Chairman Jordan and
Commissioner Riley), 864 (Commissioner Marks).  Commissioners
Verheggen and Beatty, dissenting in separate opinions, disagreed
that the regulation had the plain meaning ascribed to it by the
majority.  Id. at 865-69 (Commissioner Verheggen), 870-74
(Commissioner Beatty).

     In Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301 (D.C. Cir.
2000), the D.C. Circuit overturned the Commission majority's
decision, holding that the regulation does not unambiguously
require that two escapeways be functional at all times when
miners are underground.  Id. at 1303.  The Court remanded the
case so that the Commission could secure from the Secretary an
"authoritative interpretation" of section 57.11050 and apply
standard deference principles to that interpretation.  Id. at
1305.

     After issuance of the court's mandate, the Secretary vacated
the underlying citation and on July 26, 2000, filed a motion to
dismiss this case as moot.  Akzo did not file an opposition to
the motion.  In her motion, the Secretary stated that the
"authoritative interpretation" the court required of her was
contained in Program Policy Letter No. P00-IV-2, which took
effect July 31, 2000.  Mot. at 2.

     In light of the foregoing, the Secretary's motion is granted
and this case is dismissed.


                              Mary Lu Jordan, Chairman

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner


Distribution

Jerald S. Feingold, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203

Mark N. Savit, Esq., Patton Boggs LLP, 2550 M Street, N.W. Washington,
D.C.  20037