<DOC>
[DOCID: f:se94362.wais]

 
ASARCO INCORPORATED
September 29, 1998
SE 94-362-RM

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          September 29, 1998

SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :
                                    :
            and                     :
                                    :
INTERNATIONAL CHEMICAL              :  Docket No. SE 94-362-RM
  WORKERS' UNION COUNCIL            :
                                    :
             v.                     :
                                    :
ASARCO, INCORPORATED                :

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

                               DECISION

BY:  Marks, Riley, Verheggen, and Beatty, Commissioners

     This is a contest proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act" or "Act"), in which Asarco, Inc. ("Asarco"),
challenges a citation issued by the Department of Labor's Mine
Safety and Health Administration ("MSHA").  The citation charges
Asarco with violating 30 C.F.R.  57.5001(a), which specifies the
exposure limits for airborne contaminants in metal/nonmetal
mines, and 30 C.F.R.  57.5005, which addresses the control of
exposure to those airborne contaminants.  The proceeding had
previously been before the Commission on review after
Administrative Law Judge Roy Maurer granted Asarco's motion to
dismiss.  The Commission vacated the judge's order and remanded
the case to the judge for a hearing on the merits of the
citation.  Asarco, Inc., 17 FMSHRC 1 (Jan. 1995) ("Asarco I").
Following the hearing, the judge granted Asarco's contest and
vacated the citation.  19 FMSHRC 1097 (June 1997) (ALJ).  Asarco
filed a petition for discretionary review ("PDR") challenging the
judge's determination that MSHA's use of single shift sampling is
a permissible method of determining whether silica dust
concentrations exceed the limit set forth in section 57.5001(a).
The Secretary of Labor and the International Chemical Workers'
Union Council (the "Union") filed "conditional" petitions
requesting review of the judge's decision in the event the
Commission granted Asarco's petition for review.  The Commission
granted the petitions filed by Asarco, the Secretary and the
Union.  For the reasons that follow, we vacate the direction for
review.

                                  I.

                  Factual and Procedural Background

     MSHA issued the citation in this proceeding after the agency
sampled for airborne contaminants at the "skip tender" position
at Asarco's Young mine, an underground zinc mine in Tennessee.
Id. at 1098-99.  The citation charged Asarco with violating
sections 57.5001(a)[1] and 57.5005.[2]  Id. at 1097.  The
citation, based on a single sample taken during an eight-hour
shift, alleged that the miner was exposed to 2.3 milligrams of
respirable silica-bearing dust per cubic meter of air ("mg/m3"),
which exceeded the permissible level of contaminants.  Asarco I,
17 FMSHRC at 2-3.  The citation further alleged that, although
respiratory protective equipment was in use, all feasible
engineering controls were not being used to control the
employees' exposure to dust, as required by the regulations.  Id.
at 3.

     Asarco filed a notice of contest and subsequently moved to
vacate the citation based on the Commission's decision in
Keystone Coal Mining Corp., 16 FMSHRC 6 (Jan. 1994).  In
Keystone, the Commission invalidated MSHA's spot inspection
program - under which MSHA would determine whether mine operators
violated the standard limiting levels of respirable coal dust in
underground coal mines (30 C.F.R.  70.100) based on a single
dust sample taken during an eight hour shift - because the
Secretary had failed to engage in notice-and-comment rulemaking
in accordance with the Mine Act and the Administrative Procedure
Act.  Id. at 16.

     In Asarco I, the Commission reversed the judge's dismissal
of the citation based on the Keystone decision.  The Commission
concluded that the legal basis for the Keystone decision limited
its application to air sampling in underground coal mines.
Asarco I, 17 FMSHRC at 5.  The case was remanded, and a hearing
was held on the merits of the citation.  The judge upheld the
merits of single-shift sampling as consistent with the
regulations at issue.  19 FMSHRC at 1132.  However, he vacated
the citation on the ground that MSHA failed to maintain and
adhere to standardized procedures in its laboratory where the
dust samples that were the basis for the citation were analyzed.
Id. at 1139-41.  The judge therefore granted Asarco's contest.
Id. at 1142.  The judge also granted a motion for declaratory
relief, filed by Asarco during the hearing, in which it sought a
declaration that the MSHA Denver laboratory cannot reliably
report the amount of silica in any single sample that it analyzes
under its current procedures.  Id.

     Notwithstanding the judge's grant of its contest and his
issuance of declaratory relief, Asarco petitioned the Commission
for discretionary review, challenging the judge's upholding of
single-shift sampling in metal/nonmetal mines.  Asarco argued,
inter alia, that single-shift sampling is inconsistent with the
language of the regulations and is not a reasonable means for
determining excessive exposure to silica dust.  A. PDR at 3-5.
In their conditional petitions for discretionary review, the
Secretary and the Union challenged the judge's issuance of
declaratory relief.  S. PDR; U. PDR.  Both the Secretary and the
Union also opposed Asarco's petition on the ground that Asarco
was not a person "adversely affected or aggrieved by a decision
of an admin-istrative law judge."  S. Opp'n at 3-6 (quoting 30
U.S.C.  823(d)(2)(A)(i)); U. Opp'n at 1-2.

                                 II.

                             Disposition

     A threshold issue before us is whether a party who has
prevailed before an administrative law judge may nevertheless
petition the Commission to review determinations made by the
judge that are adverse to a position a party has taken during the
proceeding.

     In her opposition to Asarco's petition, the Secretary argues
that, because Asarco received all the relief it sought before the
judge - vacating the citation and granting its motion for
declaratory relief - Asarco is not aggrieved, and the Commission
is without jurisdiction to consider the appeal.  S. Opp'n at 3-6;
S. Resp. Br. at 1-3.  The Secretary asserts that the judge's
determination that single-shift sampling is a permissible
enforcement strategy is non-binding and, therefore, Asarco can
show no injury other than that it may have to relitigate the
issue.  S. Opp'n at 5-6.  The Secretary also contends that the
Commission lacks jurisdiction to hear Asarco's request for review
of a finding that was unnecessary to the judge's ultimate
determination.  S. Resp. Br. at 1, 3, 5-8.  Finally, the
Secretary cautions that recognizing the right of prevailing
parties to appeal from portions of decisions with which they are
dissatisfied would encourage litigants to file many unnecessary
appeals with the Commission.  S. Opp'n at 6.  In support of the
Secretary's position, the Union argues that Asarco is not an
aggrieved party and, therefore, lacks standing to challenge the
judge's finding regarding single-shift sampling.  U. Opp'n at 1-
2.

     Asarco responds that the judge's finding that single-shift
sampling is valid is appealable because it did not prevail on
that issue.  A. Br. at 15 n.19.  Further, Asarco argues that the
single- shift testing policy continues to be applied, and the
threat of injury to Asarco is real.[3]  Id. at 16.  Asarco states
that other cases have been stayed pending a Commission decision
regarding single- shift sampling.  Id.  In its reply brief,
Asarco disputes the Secretary's suggestion that it received all
the relief it sought before the judge.  A. Reply Br. at 29.
Finally, Asarco asserts that it falls within judicially-created
exceptions to the general rule barring appeal by winning parties.
 Id. at 31.

     Section 113(d)(2)(A)(i) of the Mine Act provides, in
relevant part, that "[a]ny person adversely affected or aggrieved
by a decision of an administrative law judge, may file and serve
a petition for discretionary review by the Commission of such
decision . . . ."  30 U.S.C.  823(d)(2)(A)(i).  "The phrase
`person adversely affected or aggrieved' is a term of art
used in many statutes to designate those who have
standing to challenge or appeal an agency decision, within
the agency or before the courts."  Director, Office of
Workers' Compensation Programs v. Newport News
Shipbuilding and Dry Dock Co., 514 U.S. 122, 126 (1995).

     The Mine Act further states that review "shall not be a
matter of right but of the sound discretion of the Commission."
30 U.S.C.  823(d)(2)(A)(i); see Commission's Rules of Procedure,
29 C.F.R.  2700.70(a), (b); see also S. Rep. No. 181, 95th
Cong., at 48 (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 636 (1978)
(discussing the Commission's broad discretion in deciding whether
to grant review).  Agencies retain substantial discretion in
formulating, interpreting, and applying their own procedural
rules.  Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d
447, 451 (10th Cir. 1983) (citing American Farm Lines v. Black
Ball Freight Serv., 397 U.S. 532, 539 (1970)).  However, in
exercising its discretion, "an agency receives guidance from the
policies that underlie the `case or controversy' requirement of
article III," including "examination of the proper institutional
role of an adjudicatory body and a concern for judicial economy."
Id.

     We addressed the "aggrieved person" requirement of section
113(d)(2)(A)(i) in Mid-Continent Resources, Inc., 11 FMSHRC 2399
(Dec. 1989) ("Mid-Continent I").  There, we had granted a
petition for discretionary review from the American Mining
Congress ("AMC"), which was not a party to the proceeding before
the judge.  In vacating our grant of the AMC's petition, we
eschewed a literal approach to application of the aggrieved
person requirement of section 113(d)(2).  Id. at 2401.  We were
guided by general principles governing appeals in "traditional
adversarial litigation" and stated, "we discern no warrant for an
interpretation of section 113(d)'s review procedure that is out
of line with normal litigation processes or that is likely to
complicate or prolong the resolution of disputes under the Act."
Id. at 2401-02.

     In concluding that the AMC lacked standing to file a review
petition, we stated:

               Here, literally speaking, there is not
          a "case or controversy" involving the AMC
          under the Mine Act in the context of the
          present proceeding.  Nor has the AMC
          demonstrated how the judge's dismissal of the
          Secretary's enforcement proceeding has had an
          adverse impact on it.  Instead, the AMC
          argues that it is "adversely affected or
          aggrieved" because it has an interest in the
          legal principles involved in this proceeding
          . . . . However, every Commission proceeding,
          to some extent, involves an interpretation of
          the Mine Act, a mandatory standard, or some
          legal principle affecting the enforcement or
          meaning of the Mine Act.  Under the AMC's
          position, mining trade associations, mine
          operators, and miners generally would have a
          sufficient interest in Commission proceedings
          to bestow upon them the right to file a
          petition for review of most administrative
          law judge decisions.  We are confident that
          Congress, in enacting the Mine Act, did not
          intend to create such a potential litigation
          "free-for-all" in review proceedings before
          the Commission.

Id. at 2403-04 (emphasis in original).

     The issue in Mid-Continent I involved the right of a non-
party to file a review petition where the Secretary had vacated
the citation and the judge had dismissed the proceeding.[4]
Thus, Mid-Continent I is not directly controlling here, where the
judge has issued a decision in a party's favor.  Nevertheless,
much of our reasoning in Mid-Continent I applies to this case.
Extending the right to petition for review by a prevailing party
raises the spectre of the "litigation free-for-all" that we
sought to avoid in Mid-Continent.  If we were to grant the right
to challenge adverse factual findings or legal conclusions to a
party who has prevailed before an administrative law judge, the
scope of the issues that could be appealed would be broadened
significantly from our present practice.

     Other statutes with standing requirements similar to the
Mine Act support our treatment of appeals by prevailing parties
under section 113(d)(2).  Section 10(f) of the National Labor
Relations Act ("NLRA") provides that "[a]ny person aggrieved by a
final order of the Board . . . may obtain a review of such
order [in an appropriate United States circuit court of
appeals] . . . ."  29 U.S.C.  160(f).[5]  In Boeing Co.
v. NLRB, 89 LRRM 2672 (4th Cir. 1975), the court granted
the NLRB's motion to dismiss the petition for
review that was filed by Boeing, which had prevailed in the
administrative proceeding below and had all unfair labor practice
charges against it dismissed.  The court held that Boeing could
not assert that it was "aggrieved" and that the statute did not
allow a victorious party to challenge adverse underlying findings
and conclusions.  Id. at 2674.  The court reasoned that the
adverse findings would have neither collateral estoppel nor res
judicata effect in future proceedings involving Boeing, because
"of the general lack of ability of the winning party to obtain as
broad a scope of appellate review as is available to the losing
party."  Id.; see also Deaton Truck Line, Inc. v. NLRB, 337 F.2d
697, 698 (5th Cir. 1964) (finding that appellant lacked standing
to appeal because, as victorious party below, it "is not a party
aggrieved by the Board's order") (emphasis in original).  We find
this rationale persuasive, because in the present case the
judge's decision has neither res judicata nor collateral effect
in future cases in which the issue of single-shift sampling may
be raised.  See also Commission Procedural Rule 72, 29 C.F.R. 
2700.72 ("An unreviewed decision of a Judge is not a precedent
binding upon the Commission.").

     While the Occupational Safety and Health Review Commission
("OSHRC") has not addressed the situation at issue, it has
interpreted in another context the "aggrieved party" requirement
of the Occupational Health and Safety Act of 1970 ("OSH Act").
The OSH Act regulation concerning OSHRC's discretionary review
also contains language limiting standing before that Commission
to parties "adversely affected or aggrieved by the decision."  29
C.F.R.  2200.91(b).  Applying that regulation, OSHRC denied
a request for review of a de minimus violation, noting
that "[s]ince complainant does not take issue with the
Judge's disposition and respondent is not specifically
prejudiced thereby, the Commission declines to pass upon,
modify, or change the Judge's decision."  Westburne
Drilling, Inc., 5 OSHC (BNA) 1457, 1457 (No. 15631, 1977).

     Finally, we find support for our approach in the law
governing appeals in the federal court system.  The general rule
in federal courts is that parties may not appeal adverse portions
of district court judgments in their favor.  See California v.
Rooney, 483 U.S. 307, 311 (1987) ("The Court of Appeal's use of
analysis that may have been adverse to the State's long-term
interests does not allow the State to claim status as a losing
party for purposes of this Court's review."); 19 James Wm. Moore,
Moore's Federal Practice  205.04[1], at 205-42 to 205-43 (Donald
R. Coquilette et al. eds, 3d ed. 1998) (quoting Deposit Guaranty
National Bank of Jackson v. Roper, 445 U.S. 326, 334 (1980)).
The Fourth Circuit elaborated that "[a]n injury in fact is
required for a party to be aggrieved for purposes of being able
to appeal; the party's desire for better precedent does not by
itself confer standing to appeal."  HCA Health Servs. of Virginia
v. Metropolitan Life Ins. Co., 957 F.2d 120, 124 (4th Cir. 1992).

     Some cases on which Asarco relies recognize that, so long as
a prevailing party retains a sufficient stake in continued
litigation, it may appeal adverse aspects of a decision.  See A.
Reply Br. at 31-33 (citing R.T. Vanderbilt v. OSHRC, 728 F.2d 815
(6th Cir. 1984); Roper, 445 U.S. at 334; Electrical Fittings
Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939)).  While limited
exceptions exist to the general rule denying prevailing parties
standing to appeal from adverse findings unnecessary to the final
adjudication, we find that Asarco's attempt to fit its request
within these exceptions is misplaced.  None of the cases cited by
Asarco stands for the proposition that a party such as Asarco -
which has prevailed below, will suffer no collateral effects from
our denial of review and which retains no economic interest
related to the vacated citation - would have standing in federal
court to challenge an adverse finding unnecessary to the final
determination.

     Both Asarco (A. Reply Br. at 32) and the dissent (slip op.
at 11) point to the Sixth Circuit's opinion in Vanderbilt, which
found that OSHRC's finding that a product sold by Vanderbilt
contained asbestos "may have a substantial effect on the behavior
of ceramic manufacturers concerned about the safety of the . . .
product," thereby supplying the "case or controversy to consider
Vanderbilt's appeal."  728 F.2d at 817.  Here, by contrast, the
judge upheld a sampling technique that has been in use for over
20 years, thereby maintaining the status quo.  See 19 FMSHRC at
1135 ("[T]he record is devoid of any indication as to why, after
more than 20 years of enforcing Section 57.5001(a) by single
samples . . . , a multiple sample position has suddenly
surfaced.").  The judge's decision did not alter the behavior of
these litigants or of any third parties.  Moreover, Asarco
retains the right to challenge the Secretary's single-shift
sampling enforcement policy in a future case where determining
whether the dust standard was violated necessitates a ruling on
the validity of single-shift sampling.  Asarco's right to
challenge the Secretary's policy is not impaired by our decision
today.  Thus, we find Vanderbilt inapposite.

     Likewise, Roper, relied upon by Asarco and the dissent, is
an example of a limited exception, inapplicable here, to the rule
that prevailing parties may not appeal the merits of adverse
rulings.  The appellants in Roper sought review of the judge's
denial of their request for class certification, despite the
district court's award to the plaintiffs of the maximum
individual amount.  445 U.S. at 330, 340.  The Supreme Court held
that the appellants satisfied the Article III case or controversy
requirement by retaining a substantial economic interest in their
appeal of a ruling denying them class certification, which would
have allowed them to "shift part of the costs of litigation to
those who will share in its benefits if the class is certified
and ultimately prevails."  Id. at 336.  Asarco has no such
economic interest here.

     Electrical Fittings also does not support Asarco's request
for review.  That case involved a defendant-appellant's request
for review of the district court's determination that a patent
was valid, despite the district court's dismissal of the case for
failure to prove infringement.  307 U.S. at 242.  The Supreme
Court in Electrical Fittings remanded the matter, but explicitly
limited the remand to the excision from the district court's
decree of the collateral finding that the patent was valid, and
specifically declined to review the merits.  Id.  The Court
stated that the Second Circuit had jurisdiction "to entertain the
appeal, not for the purpose of passing on the merits, but to
direct the reformation of the decree."  Id. (emphasis added).
The Court stressed that "[a] party may not appeal from a judgment
or decree in his favor, for the purpose of obtaining review of
findings he deems erroneous which are not necessary to support
the decree."  Id. (citations omitted).  By contrast, Asarco seeks
review of the merits of single-shift sampling.[6]

     Reduced to its essence, the dissent's main contention is
that the resources expended by Asarco and the Secretary in
litigating this case warrant the Commission's review of the
single-shift sampling issue, despite both the Secretary's and the
Union's request to dismiss for lack of jurisdiction, and despite
Asarco's victory before the judge.  Slip op. at 10, 12.  But
"`the inconvenience of having to initiate more than one suit [is
not] a hardship sufficient to justify review' when the issues are
not otherwise fit for judicial resolution."  Webb v. Department
of Health and Human Servs., 696 F.2d 101, 107 (D.C. Cir. 1982)
(alteration in original) (quoting New York Stock Exchange, Inc.
v. Bloom, 562 F.2d 736, 742 (D.C. Cir. 1977)).[7]

     Finally, we take little comfort in the dissent's explanation
(slip op. at 12) that we would retain discretion to reject
petitions for discretionary review from prevailing parties in the
future.   The necessity of reviewing a flood of appeals from
prevailing parties for the purpose of deciding whether to grant
review would in and of itself create an administrative burden on
the Commission, even if review is ultimately denied.  As an
application of sound policy, we think it the wiser course to
exercise our discretion under the Mine Act to review judges'
rulings in accordance with the well-settled law of standing.
Accordingly, we vacate our direction for review granting Asarco's
petition and the "conditional" petitions of the Secretary and the
Union.  Pursuant to 30 U.S.C.  823(d)(2)(A)(i), we deny review
of the three petitions.

**FOOTNOTES**

     [1]:  Section 57.5001(a) provides in relevant part:

          Except as permitted by  57.5005-

          (a)   .   .   .   the  exposure  to  airborne
          contaminants shall  not  exceed, on the basis
          of  a  time weighted average,  the  threshold
          limit  values   adopted   by   the   American
          Conference    of    Governmental   Industrial
          Hygienists, as set forth and explained in the
          1973    edition    of    the    Conferences's
          publication, entitled "TLV's Threshold  Limit
          Values  for  Chemical  Substances in Workroom
          Air Adopted by ACGIH for 1973," . . . .

30 C.F.R.  57.5001(a).

     [2]:  Section 57.5005 provides  in  relevant part:  "Control
of employee exposure to harmful airborne  contaminants shall
be,  insofar  as  feasible,  by prevention of contamination,
removal  by  exhaust  ventilation,   or   by  dilution  with
uncontaminated air."  30 C.F.R.  57.5005.

     [3]:   Asarco also seeks a declaration from  the  Commission
that the  Secretary  can  never  prove  a  violation  of the
respirable  dust  standard  by use of a single-shift sample.
A. Br. at 16.

     [4]:  In Mid-Continent Resources,  Inc.,  12 FMSHRC 949 (May
1990)  ("Mid-Continent II"), the Commission  addressed  Mid-
Continent's  request  for  declaratory  relief  in  the same
proceeding.   The  Commission  concluded  that  the case was
moot,  reasoning  that,  once  the  Secretary  vacated   the
underlying  citation,  the  enforcement  action was extinct.
Id. at 956.  In Mid-Continent II, the issue  of whether Mid-
Continent  was  an aggrieved person withing the  meaning  of
section  113(d)(2)   was   not   raised  or  argued  to  the
Commission.  Unlike Mid-Continent  II,  in  the instant case
the  administrative law judge issued a decision  from  which
Commission  review could be sought by an "aggrieved person."
Subsequent to  Mid-Continent  I  and  Mid-Continent  II, the
Commission  held  that  the  Secretary's  decision to vacate
citations is unreviewable.  Mechanicsville  Concrete,  Inc.,
18  FMSHRC  877,  879-80  (June 1996); RBK Constr., Inc., 15
FMSHRC 2099, 2101 (Oct. 1993).

     [5]:  Unlike the Mine Act,  the  NLRA  contains  no parallel
provision  governing  appeals from administrative law  judge
decisions to the Board.  See 29 U.S.C.  160(c); 29 C.F.R. 
102.46.

     [6]:  We also note that  the  passage  in  Moore's  Federal
Practice cited by the dissent relies on Roper and Electrical
Fittings  as  the  only  examples  of  cases  where  parties
satisfied  Article  III despite winning below.  Slip op.  at
10.  As we have explained,  Asarco's  "rights" have not been
affected by the judge's single-shift sampling ruling.

     [7]:  Contrary  to  the  dissent's assertion,  we  did  not
"clearly remand[]" (slip op.  at  10)  the  issue of single-
shift sampling for consideration by the judge.   Rather,  we
"vacate[d]  the  judge's  order  dismissing the citation and
remand[ed]  for further appropriate  proceedings  consistent
with [our remand  decision]."   17  FMSHRC at 6.  Our remand
did not require the judge to pass on  the  merits of single-
shift sampling.

                                 III.

                              Conclusion

     For the foregoing reasons, we vacate the order granting
review of Asarco's petition and the order granting review of the
"conditional" petitions for discretionary review filed by the
Secretary and the Union, and we deny review of the three
petitions.

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner

Chairman Jordan, dissenting:

     This case, which was filed with the Commission in 1994,
involved extensive discovery, many expert witnesses, a
sixteen day trial in 1996, and a voluminous record
totaling over four thousand pages.  Although my colleagues
vacate the order granting review of Asarco's petition
for review, I believe that the Commission should hear
the claims raised by Asarco.  I therefore respectfully
dissent.

     Asarco brought this case in large part to challenge
the validity of MSHA's silica dust sampling procedures.
It came to the Commission five years ago seeking a
meaningful, final resolution of this matter.  Both
Asarco and the Secretary invested substantial time and
money to conduct this litigation.  After devoting
extensive resources to an issue which the Commission
had clearly remanded to the judge, Asarco, Inc., 17
FMSHRC 1, 5 (Jan. 1995), and subsequently losing on
that issue, which is central to one of MSHA's most
important and extensive enforcement mechanisms, Asarco
can hardly be characterized as a typical prevailing
litigant.  On the contrary, it either will now
have to continue to operate under a system which it claims
produces inaccurate samples, or will have to start from
scratch and craft a new litigation challenge, in which
both Asarco and the Secretary will undoubtedly expend
significant resources to replay what has already been
presented to the judge in this case.  The judge upheld
the sampling policy to which Asarco objected, and
unless it can obtain a contrary ruling from a body such
as the Commission or a court, Asarco will continue to
be subject to citations and penalties on the basis
of a sampling system which it claims is inaccurate.
Consequently, it stands as a party "adversely affected
or aggrieved by a decision of an administrative law
judge."  30 U.S.C.  823(d)(2)(A)(i).

     My conclusion that the Commission should review Asarco's
appeal is consistent with the legal principle that

          [I]f a litigated issue was
          adjudicated expressly adversely to
          the party prevailing on the merits,
          even though it was immaterial to
          the final disposition, that party
          may retain an interest in the
          matter sufficient to support
          appellate jurisdiction. . . . A
          `stake in the appeal' exists if the
          collateral ruling affects the
          prevailing party's rights and if
          erroneous would work harm to the
          prevailing party's interest.

19 James Wm. Moore, Moore's Federal Practice  205.04[1], at 205-
42 to 205-43 (Donald R. Coquilette et al. eds, 3d ed. 1998)
(quoting Deposit Guaranty National Bank of Jackson v. Roper, 445
U.S. 326, 334 (1980)).  Clearly the judge's ruling on the single
sampling issue was adverse to Asarco, and affected its rights.
If the judge is wrong and MSHA's single sample approach is not
"`reasonably calculated to prevent excessive exposure to
respirable dust'" (19 FMSHRC at 1135) (quoting American Mining
Congress v. Marshall, 671 F.2d 1251, 1256 (10th Cir. 1982)),
Asarco's (as well as countless miners') interests will be
placed severely at risk.

     My position is also supported by the Supreme Court's
decision in Deposit Guaranty National Bank of Jackson v. Roper,
445 U.S. 326 (1980), which established an exception to the
general rule that prevailing parties may not appeal.  In that
class action against a bank, the district court denied the motion
for class certification.  Id. at 329.  The bank subsequently
offered each named plaintiff the maximum amount each could have
recovered.  Id.  Although the plaintiffs refused the offer, the
district court entered judgment in their favor.  Id. at 329-30.
The Supreme Court affirmed the 5th Circuit's holding that the
case was not moot, on the ground that the plaintiffs held an
economic interest in class certification (because they wanted to
shift some of the litigation expenses to other class members).
Id. at 338-40.  This was sufficient, according to the Court, to
permit the prevailing party to appeal the adverse collateral
ruling, since the party retained "a stake in the appeal
satisfying the requirements of Art[icle] III."  Id. at 334.

     My refusal to vacate the order granting review of Asarco's
petition is also consistent with R.T. Vanderbilt Co. v. OSHRC,
728 F.2d 815 (6th Cir. 1984).  In that case, a pottery company
was charged with three violations of OSHA's asbestos standard.
Id. at 816.  The Occupational Safety and Health Review Commission
vacated the citation, but found that the talc product
manufactured by Vanderbilt (which had intervened) and used to
make the pottery contained asbestos fibers.  Id. at 816-17.
Relying on Deposit Guaranty, the 6th Circuit rejected OSHRC's
argument that the court had no jurisdiction over the case and
that Vanderbilt could not appeal from OSHRC's decision because it
had received all the relief it required (the vacation of the
citation against Hull).  Id. at 817.  The 6th Circuit ruled that
the Commission's determination that Vanderbilt's talc contained
asbestos, although not binding in future cases, could
significantly affect the actions of ceramic manufacturers
concerned about the safety of the product.[1]  Id.

     Although my colleagues rely primarily on Mid-Continent
Resources, Inc., 11 FMSHRC 2399 (Dec. 1989) ("Mid-Continent I"),
I find it singularly inapposite.  As they acknowledge (slip op.
at 5), the Commission in that case was focused on the question of
whether a non-party could file a petition for review after the
Secretary had vacated a citation and the judge had dismissed the
proceeding.  However, even though the operator had prevailed
below, the Commission did not dismiss its petition, but instead,
went on to issue a substantive decision on its request for
declaratory relief.  Mid-Continent Resources, Inc., 12 FMSHRC 949
(May 1990) ("Mid-Continent II").  We denied relief on the grounds
that the controversy was speculative, that the operator had not
proven that similar incidents had occurred at its mines, or that
its claim was widespread in the industry.  Id. at 956-57.  This is in
stark contrast to Asarco, which will continue to be subject to the
Secretary's single sample enforcement process on a daily basis,
has asserted that other operators continue to receive single
sample citations (A. Reply Br. at 33), and indicates that many
similar cases have been stayed pending the outcome of this
proceeding.  A. Br. at 16.  The Commission's admonition in Mid-
Continent II that declaratory relief was too abstract and that
the operator should wait until a concrete case existed does not
apply in the instant proceeding.  Here, Asarco has demonstrated
"a substantial likelihood of recurrence of the claimed
enforcement harm or the imminence of repeated injury."  Mid-
Continent II, 12 FMSHRC at 956.

     My colleagues speculate that permitting review in this case
could create a "litigation free-for-all."  Slip op. at 6.
Pursuant to our statutory authority, however, the Commission has
the unchallenged ability to deny petitions.  Hearing this appeal
in no way obligates us to grant review of prevailing parties'
petitions in subsequent cases.  The beauty of the discretionary
nature of our review process is that we may use our judgment to
select the cases appropriate for Commission adjudication.  If we
are truly concerned about ensuring the effective use of
Commission and party resources we would be well placed to hear
this appeal, instead of permitting four years of extensive
litigation, and the views of a judge expressed in excruciating
detail in a thoroughly written opinion, to be cast aside.

     Accordingly, I would not vacate the petition for review, but
would decide the case on the merits.

                              Mary Lu Jordan, Chairman

Distribution:

Steven D. Turow, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA  22203

Randy Vehar, Esq., Michael Spinker, Esq., International
Chemical Workers Union, 1655 West Market Street, Akron,
OH 44313

Henry Chajet, Esq.,David Farber, Esq., Patton Boggs, LLP
2550 M Street, N.W.,Washington, D.C.  20037

David Goldman, Esq.,U.S. Steel Workers of America, 5 Gateway
Center, Pittsburgh, PA 15222

Michael F. Duffy, Esq., National Mining Association, 1130
17th Street, N.W., Washington, D.C.  20036

**FOOTNOTES**

     [1]:  My colleagues' attempt to distinguish Vanderbilt (slip
op. at 7) is misplaced.  The significance of Vanderbilt  does not
turn on the fact that it involved a decision which could motivate
"third parties to change their conduct in response to portions of
a court's decision."  Id.  Although that was the applicable  fact
situation  in  Vanderbilt,  the  Court nowhere intimates that its
ruling permitting the appeal should be restricted in this manner.