.
POWELL MOUNTAIN COAL COMPANY, INC.
Docket No. KENT 2002-253-D
August 13, 2002



        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3868

                 Telephone No.:  202-653-5454

                  Telecopier No.: 202-653-5030

                         August 13, 2002


JERRY POLLY,                     : DISCRIMINATION PROCEEDING
               Complainant,      :
          v.                     : Docket No. KENT 2002-253-D
                                 :
POWELL MOUNTAIN COAL             : BARB-CD-2002-04
      COMPANY, INC.,             :
               Respondent        : Mine:  Kentucky Wallins Mine


                ORDER DENYING MOTION TO DISMISS
             ORDER TO RESPONDENT TO FILE AN ANSWER

Before:  Judge Barbour


     On July 17, 2002, the Respondent, Powell Mountain Coal Company, Inc.
("Powell"), filed a motion to dismiss the above captioned discrimination case.
In support of the motion, Powell asserts the Complainant, Jerry Polly, failed to
file a discrimination complaint with the Commission within 30 days notice by the
Mine Safety and Health Administration ("MSHA") that no violation occurred under
Section 105(c) of the Mine Act ("the Act").  Resp. Mot. at 1.  Powell argues
that Polly was required to file a complaint with the Commission by May 15, 2002,
but Polly did not mail the complaint until June 4, as shown by a copy of the
envelope.  Mot. at 2; Resp. Exhibit 4.

     Section 105(c)(3) of the Act states in pertinent part: "[i]f the Secretary,
upon investigation, determines that the provisions of this subsection have not
been violated, the complainant shall have the right, within 30 days of notice of
the Secretary's determination, to file an action in his own behalf before the
Commission, charging discrimination."  30 U.S.C. § 815(c)(3).

     The record indicates, as Powell correctly states in its motion, that MSHA's
letter is dated April 15, 2002, and, therefore, Polly had until May 15, 2002, to
file a complaint with the Commission.  However, Powell is mistaken in asserting
that Polly did not timely file a complaint.  My office received Polly's
complaint on May 13, 2002, two days before the deadline.  Subsequently, on May
14, 2002, I sent a letter to Polly - as is normal practice - instructing him to
file additional information, within 30 days, including a copy of the return
receipt indicating he had sent a copy of the complaint to Powell.  If Polly had
not already sent a copy of the complaint to Powell, I instructed him, in the
alternative, to do so via certified mail, return receipt requested.  My office
timely received the required information on June 14, 2002.

     Thus, the record clearly indicates that Polly was in compliance with MSHA's
April 15 letter and my  May 14 letter.  Polly timely filed his documents with my
office.  Polly's apparent error was in failing to timely serve Powell with a
copy of the complaint, an error that likely was the root of Powell's belief that
Polly did not timely file a complaint.  Commission Rule 7(a) (29 C.F.R. §
2700.7(a))  requires all documents filed with the Commission to be served on all
parties.  However, Polly, who is appearing pro se, may have been unaware of the
rule.  He is now, and I expect him to fully comply in the future.

     In light of the foregoing, Powell's motion to dismiss is DENIED.

     Further, Powell is ORDERED to file an answer to the complaint within 30
days of the date of this order.



                              David F. Barbour
                              Chief Administrative Law Judge


Distribution:

Jerry W. Polly, HC 61,Box 199, Pinevelle, KY 40977 (Certified Mail)

Marco M. Rajkovich, Jr., Esq., Melanie J. Kelpatrick, Esq., Noelle M. Holladay,
Esq., Wyatt, Tarrant & Combs, LLP, 1600 Lexington Financial Center, Lexington,
KY 40507 (Certified Mail)

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