<DOC>
[DOCID: f:roberts2.wais]

 
BRENT ROBERTS
November 16, 1998
KENT 91-896-R

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006

                          November 16, 1998

SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA)       :
                              :
          v.                  :
                              :
BRENT ROBERTS,                : Docket Nos. KENT 91-896-R
PAUL COTTON,                  :             KENT 91-897-R
STEVE LITTLE,                 :             KENT 91-898-R
BENNY JOHNSON,                :             KENT 91-934-R - 91-955-R
SYDNEY POE,                   :             KENT 91-992-R
ROBERT BENNET,                :             LAKE 91-478-R
JAMES JACK,                   :             LAKE 91-503-R - 91-529-R
JOHN S. BIBY,                 :             LAKE 91-530-R - 91-605-R
LARRY FLYNN,                  :             SE 91-538-R
KIMMIE NOAH,                  :             SE 91-544-R - 91-655-R
SHARELL CLARK,                :             WEVA 91-1331-R
JAMES F. MATICS,              :             WEVA 91-1332-R 
ROBERT E. PERSINGER,          :             WEVA 91-1333-R
EVERETTE E. BALLARD,          :             WEVA 91-1385-R
DANIEL SERGE,                 :             WEVA  91-1386-R
                              :             WEVA 91-1494-R - 91-1509-R
SANDRA EASTHAM,               :             WEVA 91-1414-R - 91-1435-R
KEVIN TUSTIN,                 :             WEVA 91-1436-R - 91-1493-R
STEVEN PERKINS,               :             WEVA 91-1510-R - 91-1524-R
JIMMY HAYWORTH,               :             WEVA 91-1525-R
DONALD CASE, and              :             WEVA 91-1614-R
REGGIE PHILYAW                :             WEVA  91-1926-R

BEFORE:  Riley, Verheggen, and Beatty, Commissioners[1]

                             ORDER

**FOOTNOTES**

[1]:    Chairman  Jordan  has  recused herself in this matter and
took no part in the consideration  of  this  order.   Pursuant to
section 113(c) of the Mine Act, 30 U.S.C.  823(c), this panel of
three Commissioners has been designated to exercise the powers of
the Commission.
                        BY THE COMMISSION:

     In these contest proceedings arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994) ("Mine
Act"), the Secretary of Labor has filed with the Commission a motion
to consolidate and dismiss her appeals.  The petitioners have not
filed an opposition to the motion. For the reasons that follow, we
grant the motion, vacate the directions for review, and dismiss
these proceedings.

                                I.

                 Factual and Procedural Background

     On April 18, 1991, the Secretary, through the Department of
Labor's Mine Safety and Health Administration ("MSHA"), proposed
to revoke certifications that had been conferred, pursuant to 30
C.F.R. Parts 70, 71, and 90, upon certain persons to collect
respirable dust samples and to maintain and calibrate respirable
dust sampling devices.[2]  The proposed revocations arose from
citations that were issued, pursuant to 30 U.S.C.  814(a), to
various mine operators on April 4, 1991, alleging that the weight of
respirable dust cassettes submitted to fulfill sampling requirements
had been intentionally altered by removing dust from the cassette
filters.  On May 15, 1991, notices of contest were filed with the
Commission, resulting in these contest proceedings.

     On May 24, 1991, the Secretary filed a motion to dismiss
these proceedings, asserting that the Commission lacked jurisdiction
to review the matter.  On September 4, 1991, following argument on the
motion, Chief Administrative Law Judge Paul Merlin issued a decision
dismissing the case of Brent Roberts on the ground that the
Commission lacked jurisdiction to review the matter.  13 FMSHRC 1377
(Sept. 1991) (ALJ).  He concluded that, under the Mine Act and its
legislative history, the Commission is not empowered to legislate a
system of administrative review for cases involving decertification of
persons who are not mine operators, miners, or representatives of
miners.  Id. at 1383.  The judge subsequently issued separate
decisions dismissing each of the remaining cases based on his
Roberts decision, which he found dispositive of the matter.  See id.
at 1385-1416 (decisions dismissing remaining cases).

**FOOTNOTES**

[2]:    The  Mine  Act  requires that mine operators maintain  an
average concentration of  respirable  dust  in  the  mines  below
prescribed  limits.   30  U.S.C.    842(b); 30 C.F.R.  70.100,
71.100, 90.100.  Operators must take accurate  dust  samples  and
submit  them  to the Secretary for analysis.  30 U.S.C.  842(a);
30   C.F.R.    70.201-70.210,   71.201-71.210,   90.201-90.210.
Respirable  dust  sampling  can  only be done by a person who has
been certified by the Secretary to  take dust samples.  30 C.F.R.
   70.2(c),   70.202-70.203,   71.2(c),  71.202-71.203,   90.2,
90.202-90.203.

     On October 3, 1991, counsel in the Roberts case filed with
the Commission a petition for discretionary review.
Subsequently, in all except one of the remaining cases, counsel filed
petitions for discretionary review that adopted and incorporated by
reference the Roberts petition.[3] On October 15, 1991, the Commission
directed the proceedings for  review.  Shortly thereafter, the
petitioners filed motions requesting that further proceedings
be stayed until resolution of the  proceedings against mine operators
alleging alteration of respirable  dust samples in In re: Contests of
Respirable Dust Sample Alteration Citations, Master Docket No. 91-1
("Dust Cases"), then pending before Administrative Law Judge James A.
Broderick.  On November 7, 1991, the Commission stayed the
proceedings.  On April 20, 1994, Judge Broderick issued a final
decision dismissing the Dust Cases on the ground that the Secretary
had failed to prove that the weight of respirable dust cassettes had
been intentionally altered.  16 FMSHRC 857 (Apr. 1994) (ALJ).
Subsequently, the Secretary filed a petition for discretionary review
of the judge's decision, which was granted by the Commission.  On
November 29, 1995, the Commission affirmed the judge's Dust Cases
decision.  17 FMSHRC 1819 (Nov. 1995).  The Secretary subsequently
appealed to the United States Court of Appeals for the District of
Columbia Circuit.  On August 21, 1998, that court issued its
decision in the Dust Cases, affirming the Commission. Secretary 
of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998).

                               II.

                           Disposition

     The Secretary represents that, on September 10, 1998, "MSHA
mailed a notice to all persons previously notified of the proposed
revocation of certifications that the agency was withdrawing the
proposed revocations."  Mot. at 5. She requests that, because the
proceedings all involve similar issues, the Commission consolidate
the proceedings.  Id. at 5-6.  In addition, she requests that,
because MSHA has withdrawn its proposed revocations, the
Commission dismiss the proceedings on the ground that they are moot.
Id. at 6-7.  The petitioners do not oppose the motion.

     We hereby lift the stay in these proceedings.  We agree with
the Secretary that these proceedings may be properly
consolidated under Commission Procedural Rule 12, 29 C.F.R.
 2700.12,[4] and accordingly order consolidation.  We further agree
with the Secretary that these proceedings no longer present a
justiciable controversy.  A case is moot when the issues presented no
longer exist or the parties no longer have a legally cognizable
interest in the outcome.  Powell v. McCormack, 395 U.S. 486, 496
(1969).  Here, the Secretary  represents that MSHA has withdrawn
its proposed revocations, which was the underlying controversy in these
proceedings.  Therefore, we find  that there is no longer a live
controversy between the Secretary and the petitioners as to the
actions out of which the petitions for discretionary review arose.
Thus, we conclude that these proceedings are moot and that
dismissal is appropriate.  See Mid-Continent Resources, Inc., 12
FMSHRC 949, 955-56 (May 1990) (affirming judge's dismissal of
case when Secretary had vacated underlying citation and withdrawal
order making case moot).

     Upon consideration of the motion, we grant it.  Accordingly,
the Commission's directions for review in these matters are vacated
and these proceedings are dismissed.

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner

**FOOTNOTES**

[3]:   The Commission's Docket Office  has no record of receiving
a petition for discretionary review in the  case of Patrick Henry
Fluty,  13  FMSHRC  1401  (Sept.  1991) (ALJ) (Docket  Nos.  WEVA
91-1193-R through WEVA 91-1218-R).

[4]:   Rule 12 provides:

               The Commission and its Judges may at any
          time,  upon  their own motion  or  a  party's
          motion,   order    the    consolidation    of
          proceedings that involve similar issues.