.
RIO ALGOM MINING CORPORATION
September 7, 2001
WEST 2000-559-M



        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        September 7, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No.  WEST 2000-559-M
               Petitioner       : A. C.  No. 48-00837-05508
                                :
                                : Docket No.  WEST 2000-573-M
                                : A. C. No. 48-00837-05509
          v.                    :
                                : Docket No. WEST 2000-574-M
                                : A. C. No. 48-00837-05510
RIO ALGOM MINING CORPORATION,   :
               Respondent       : Docket No. WEST 2000-575-M
                                : A. C. No. 48-00837-05511
                                :
                                : Smith Ranch Project
                                :
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No. WEST 2000-537-M
               Petitioner       : A. C. No. 48-00837-05501 N5Y
          v.                    :
                                : Docket No. WEST 2000-538-M
PRONGHORN DRILLING COMPANY,     : A. C. No. 48-00837-05502 N5Y
               Respondent       :
                                : Smith Ranch Project

                         SUMMARY DECISION

Appearances: Ann M. Noble, Esq., U.S. Department of Labor,
             Denver, Colorado, on behalf of Petitioner;
             Katherine Shand Larkin,  Esq., Jackson & Kelly,
             PLLC, Denver, Colorado, on behalf of Respondent,
             Rio Algom Mining Corp.; Sean P. Durrant, Esq.,
             Palmerlee & Durrant, Buffalo, Wyoming, on behalf of
             Respondent, Pronghorn Drilling Company.

Before: Judge Melick

     These cases are before me  upon  Petitions for Civil Penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977,  30  U.S.C.   801 et
seq.  (1994),  the  "Act,"  charging Respondents Rio Algom Mining
Corp. (Rio Algom) and Pronghorn Drilling Company (Pronghorn) with
violations of mandatory standards  at  the  Smith  Ranch  in-situ
uranium  recovery  operation  in  Douglas,  Wyoming.  Respondent,
Pronghorn, on April 11, 2001, and Rio Algom,  on  April 12, 2001,
filed  separate motions for summary decision asserting  that  the
Secretary  is  without  jurisdiction in this matter and that they
are entitled to summary decision vacating all of the citations at
bar.  Their arguments are  based  on  claims that the Smith Ranch
Project is not a "mine" within the meaning  of the Act.  On April
12, 2001, the Secretary filed her own motion  for partial summary
decision asserting that she has jurisdiction
under the Act to proceed against both Rio Algom,  the  owner  and
operator  of  the Smith Ranch Project, and independent contractor
Pronghorn.

     Under Commission  Rule 67, 29 C.F.R.  2700.67, a motion for
summary decision shall be  granted  only  if  the  entire record,
including the pleadings, depositions, answers to interrogatories,
admissions, and affidavits, shows: (1) that there is  no  genuine
issue as to any material facts; and (2) that the moving party  is
entitled to summary decision as a matter of law. For  the reasons
that follow I find  that  Respondents  are  entitled  to  summary
decision as a matter of law.

     Whether  the  "Smith  Ranch  Project" is a "mine" depends on
whether it meets the definition set  forth  in Section 3(h)(1) of
the Act.  Section 3(h)(1) provides as follows:

          "Coal  or  other mine" means (A) an area  of  land
     from which minerals are extracted in nonliquid form or,
     if  in  liquid  form,   are   extracted   with  workers
     underground, (B) private ways and roads appurtenant  to
     such  area,  and  (C)  lands,  excavations, underground
     passageways,  shafts,  slopes,  tunnels  and  workings,
     structures, facilities, equipment,  machines, tools, or
     other property including impoundments,  retention dams,
     and tailings ponds, on the surface or underground, used
     in, or to be used in, or resulting from,  the  work  of
     extracting such minerals from their natural deposits in
     nonliquid  form,  or  if  in  liquid form, with workers
     underground, or used in, or to  be used in, the milling
     of  such  minerals, or the work of  preparing  coal  or
     other minerals,  and  includes  custom coal preparation
     facilities.    In  making  a  determination   of   what
     constitutes mineral  milling  for purposes of this Act,
     the  Secretary  shall  give  due consideration  to  the
     convenience  of  administration   resulting   from  the
     delegation  to one Assistant Secretary of all authority
     with  respect  to  the  health  and  safety  of  miners
     employed at one physical establishment.



     In connection  with  their  motions for summary decision the
parties  have reached joint stipulations  on  the  jurisdictional
issue  and   more   particularly   regarding  the  processes  and
activities  involved  in  uranium recovery  at  the  Smith  Ranch
Project.  The process utilized  at  the  Smith  Ranch  Project is
described  in  an  article  entitled,  "The  Smith  Ranch Uranium
Project" published in the Uranium Institute Twenty Second  Annual
International  Symposium 1997, and authored by R. Mark Stout  and
Dennis E. Stover  (SJ  Exhibit  No.  2).   For  purposes  of this
decision however, it is sufficient to note, and it is undisputed,
that  the  mineral here at issue, i.e., uranium, is extracted  in
liquid form without any workers underground.

     As previously  noted,  Section 3(h)(1)(A) of the Act defines
"coal or other mine" as "[a]n  area  of  land from which minerals
are  extracted  in  nonliquid  form or, if in  liquid  form,  are
extracted with workers underground."   (emphasis  added).   It is
therefore beyond dispute that the Smith  Ranch  Project  at issue
herein is not a "mine" within the meaning of Section 3(h)(1)(A)
of the Act.

     The  Secretary  nevertheless   argues   that   Rio   Algom's
processing  of  this  mineral, which has been extracted in liquid
form  without  workers  underground,  is  covered  under  Section
3(h)(1)(C) of the Act as  "the milling of such minerals."   "Coal
or  other  mine"  is  there  defined  to  also  include  ".  .  .
structures,  facilities, equipment,  machines,  tools,  or  other
property, . .  .   used in, or to be used in, or resulting from ,
the work of extracting  such minerals from their natural deposits
in  nonliquid  form,  or,  if   in   liquid  form,  with  workers
underground, or used in, or to be used  in,  the  milling of such
minerals . . ."  (emphasis added).

     It  is  well  established  that "[w]hen the meaning  of  the
language of a statute or regulation  is  plain,  the  statute  or
regulation  must  be  interpreted  according  to  its  terms, the
ordinary meaning of its words prevails."  W. Fuels-Utah, Inc., 11
FMSHRC 278, 283 (Mar. 1989).  If it is plain on its face,  effect
should  be  given to its clear meaning.  Exportal Ltda. v. United
States, 902 F.2d 45, 50 (D.C. Cir. 1990).

     Under the  clear  and  plain  language of Section 3(h)(1)(C)
those milling operations covered under  the  Act  are  only those
involving   the  milling  of  "such  minerals,"  i.e.,  "minerals
extracted from their natural deposits in nonliquid form, or if in
liquid  form,   with  workers  underground."   Clearly  when  the
adjective "such"  is  used  to  modify  the  noun  "minerals"  it
qualifies  the word "minerals" limiting it to only those minerals
previously qualified  in  the  statute, i.e., only those minerals
extracted from their natural deposits in nonliquid form, or if in
liquid form, with workers underground.

     The adjective "such" sometimes  serves  a useful purpose, as
where it saves having to repeat a concept that cannot be referred
to in a word or two.  In statutes and regulations,  for  example,
it  may  be necessary to make clear that the second reference  is
exactly the  same  concept mentioned previously.  The word "such"
is the simplest way  to  do  so.   See People v. Jones, 46 Cal 3d
585,  250  Cal Rptr 635, 759 P2d 1165  (1988).   The  legislative
history is also  consistent  with  this  construction.   As  that
history  reflects,  the  definition  of  mining  was  intended to
encompass  the milling process, but only those milling operations
"related" to  minerals defined by and incorporated into the Act's
provisions.

     Within this framework of law it is clear that the operations
here at issue,  whether  or  not they constitute "milling" within
the meaning of the Act, are excluded from coverage under the
Act   and   the   Secretary   has   no  jurisdiction   in  these
proceedings.[1]  Accordingly all citations herein must be vacated
and these civil penalty proceedings dismissed.

                              ORDER

     Docket Numbers WEST 2000-537-M,  WEST 2000-538-M, WEST 2000-
559-M, WEST 2000-573-M, WEST 2000-574-M  and WEST 2000-575-M, are
hereby dismissed and all citations therein vacated.


                                         Gary Melick
                               Administrative Law Judge


Distribution:

Ann M. Noble, Esq., Office of the Solicitor,  U.S. Dept. of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

Katherine Shand Larkin, Esq., Jackson & Kelly,  PLLC, 1660
Lincoln Street, Suite 2710, Denver, CO 80264

Sean P. Durrant, Esq., Palmerlee & Durrant, L.L.C.,  11 North
Main Street, Suite 100, Buffalo, WY 82834

\mca

**FOOTNOTES**

     [1]: Under   the  circumstances  it  is  not  necessary   to
determine whether such operations constitute "milling" within the
meaning of the Act and supplemental briefing on this issue is, of
course, no longer necessary.