.
SOUTHERN MINERALS, INC.
June 3, 1996
WEVA 92-15-R


          FEDERAL  MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                             June 3, 1996

SOUTHERN MINERALS, INC.,        :  CONTEST PROCEEDINGS
 TRUE ENERGY COAL SALES, INC.,  :  Docket Nos. WEVA 92-15-R
 and FIRE CREEK, INC.           :      through WEVA 92-116-R
               Contestants      :
          v.                    :  Fire Creek No. 1 Mine
                                :  Mine ID 46-07512
SECRETARY OF LABOR,             :
 MINE SAFETY AND HEALTH         :
 ADMINISTRATION (MSHA)          :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
 MINE AND SAFETY AND HEALTH     :
 ADMINISTRATION (MSHA)          :  Docket Nos. WEVA 92-786
               Petitioner       :      through WEVA 92-791
          v.                    :
                                :  Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC.,        :
 TRUE ENERGY COAL SALES, INC.,  :
 and FIRE CREEK, INC.,          :
               Respondents      :
                 
                          ORDER DENYING
                         MOTION IN LIMINE

     The Respondent's motion to limit application of the penalty
assessment criteria published in 30 C.F.R. Part 100, is DENIED. 
At  trial  the  issue of the amount of any civil penalty assessed
is de novo before the judge, and the judge is not bound by the 
Secretary's interpretation of Part 100 and the civil penalty 
criteria as set for in Part 100 (Yougliogheny & Ohio Coal Co., 
9 FMSHRC 673, 678-679 (1987); Sellersburg Stone Co., 5 FMSHRC 287
(March 1983), aff'd 737 F.2d 1147 (7R Cir. 1984)). Consequently, 
I will admit any evidence relevant to the statutory civil penalty
criteria and hear the parties' arguments regarding the proper
interpretation and application of such evidence to the criteria.


                                   David F. Barbour
                                   Administrative Law Judge




          FEDERAL  MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                             June 3, 1996
                                    
SOUTHERN  MINERALS, INC.,       :  CONTEST PROCEEDINGS
 TRUE ENERGY COAL SALES, INC.,  :  Docket Nos. WEVA 92-15-R
 and FIRE CREEK, INC.           :      through WEVA 92-116-R
               Contestants      :
          v.                    :  Fire Creek No. 1 Mine
                                :  Mine ID 46-07512
SECRETARY OF LABOR,             :
 MINE SAFETY AND HEALTH         :
 ADMINISTRATION (MSHA)          :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
 MINE AND SAFETY AND HEALTH     :
 ADMINISTRATION (MSHA)          :  Docket Nos. WEVA 92-786
               Petitioner       :      through WEVA 92-791
          v.                    :
                                :  Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC.,        :
 TRUE ENERGY COAL SALES, INC.,  :
 FIRE CREEK, INC.,              :
               Respondents      :

                 
            ORDER DENYING SECRETARY'S AND RESPONDENTS'
                     MOTIONS FOR CONTINUANCE

     A hearing in these proceedings is scheduled to commence on
July 15, 1996. The Secretary's counsel has moved for a continuance.
She has a previously scheduled hearing commencing on the same date.
Counsel for the Respondents likewise has moved for a continuance.
Counsel notes that the matter of Berwind Natural Resources, Corp.,
et al., 18 FMSHRC 202 (February 1996), presents many of the same 
issues regarding operator liability that are attendant in these
proceedings, albeit in a slightly different context.

     In partial decision issued on December 15, 1996, I ruled
that True Energy Coal Sales, Inc., was not an operator and I 
dismissed the proceedings with respect to True Energy (17 FMSHRC 
2191, 2217).  I held further that  Southern  Minerals, Inc., was
an operator, and I ordered the parties to proceed to hearing on 
the merits of the cases with respect to Southern Minerals (17
FMSHRC at 2217-2218). The Commission declined to review the 
partial decision.  The Respondents assert that if these
proceedings are tried before the Commission decides Berwind,
the parties will be burdened by expending significant time and
money trying these cases  against a legal standard for determining
operator status that the Commission may change; or, that the
Berwind decision may obviate the need for trying the cases at all.
By continuing the cases to  allow the law to clarify, the burden
and expense to the parties will be lessened.

     I am sympathetic to the Respondents' desire to lessen the
burden and expense of trial.  These proceedings involve aggregate
proposed civil penalties of more than one half million dollars 
and the contests of 102 citations and orders.  In another motion,
counsel for the Secretary estimates that a trial will last at
least four weeks, and I conclude that is each and every alleged
violation is contested, that estimate may be correct.

     However, putting the trial off until the Commission issues a
decision  at  some indefinite future time -- a decision that 
ultimately may be appealed to a United States Court of Appeals 
only delays what may well be inevitable.  Without prejudging the
matter, I believe that it is more likely the Berwind decision 
will warrant going forward with a trial on the merits than that
it will obviate the need for a trial.  If I am correct, a 
continuance at this time will make the allegations, which are
already among the oldest  on  the Commission's docket, more stale
and less susceptible to proof when the hearings finally are 
reconvened.

     Balancing these factors, I conclude that the hearings on
these proceedings should go forward as soon as possible.  
ACCORDINGLY, I decline to continue these matters pending the
Commission's Berwind decision.  Given counsel for the Secretary's
scheduling conflict, I am prepared to reschedule the proceedings
to commence either on July 30, 1996, or August 6, 1996 but no 
later. I request counsel to advise me at the June 6,  1996,
prehearing conference which date is preferable.


                              David F. Barbour
                              Administrative Law Judge




      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                        June 3, 1996

SOUTHERN MINERALS, INC.,        :  CONTEST PROCEEDINGS
 TRUE ENERGY COAL SALES, INC.,  :  Docket Nos. WEVA 92-15-R
 and FIRE CREEK, INC.           :      through WEVA 92-116-R
               Contestants      :
     v.                         :  Fire Creek No. 1 Mine
                                :  Mine ID 46-07512
SECRETARY OF LABOR,             :
 MINE SAFETY AND HEALTH         :
 ADMINISTRATION (MSHA)          :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
 MINE AND SAFETY AND HEALTH     :
 ADMINISTRATION (MSHA)          :  Docket Nos. WEVA 92-786
               Petitioner       :      through WEVA 92-791
     v.                         :
                                :  Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC.,        :
 TRUE ENERGY COAL SALES, INC.,  :
 and FIRE CREEK, INC.,          :
               Respondents      :


                            ORDER DENYING
               THE SECRETARY'S MOTION TO REVISE ORDER,
               DISMISSING TRUE ENERGY COAL SALES, INC.

In a partial decision issued on December 15, 1995, I ruled
that True Energy Coal Sales, Inc. ("True Energy") was not
an operator, and I dismissed the proceedings with respect 
to True Energy (17 FMSHRC 2191, 2217).  I held further that
Southern Minerals, Inc. ("Southern Minerals") was an operator,
and I ordered the parties to proceed to a hearing on the merits
of the cases with respect to Southern Minerals (17 FMSHRC at
2217-2218). On January 22, 1996, the Commission declined review
of the partial decision because I did not expressly direct that
the dismissal "be entered as a final decision" (18 FMSHRC 1) 
(quoting Federal Rule of Civil Procedure 54(b))).


     The Secretary has moved for the entry of an order revising
the partial decision of December 15, 1996, by deleting the
dismissal of True Energy and thus allowing True Energy to
participate in the forthcoming hearing.  According to the
Secretary, if the partial decision is not revised, the
Commission eventually may determine True Energy is an
operator and the Secretary may be required to relitigate
these proceedings against True Energy, a use of his
resources that the Secretary asserts  would be  wasteful.
The Respondents oppose the motion, noting that True Energy
already has been dismissed as a party.

     While I agree with the Secretary that the present posture
of these proceedings permits me to revise the order dismissing
True Energy, I decline to do so.  If the cases go forward in
their current posture, the merits of the alleged violations
will be decided.  Thus, if True Energy ultimately is found
to be an operator, the Secretary will not have to relitigate
whether the violations occurred, but rather will have to
litigate only the civil penalty aspects of the violations
with regard to True Energy.

     On the other hand,  if  I grant the Secretary's motion,
and True Energy ultimately is found by the Commission not to
be an operator, the civil penalty aspects of the proceedings
regarding True Energy will have been tried for naught.
Thus, I must balance whether to try the civil penalty
aspects regarding True Energy  now,  or possibly  later,  or
possibly not at all.

     It bears remembering that these cases involve more than 
one half million dollars in proposed penalties, and the 
contests of 102 citations and orders.  Simplification of the
forthcoming hearing is desirable.  The issue of True
Energy's status as an operator has been tried and decided.
True Energy has been removed as a participant and evidence
regarding the civil penalty criteria and True Energy has
been removed from consideration.  I see little to be gained
from revisiting the issue and enlarging an already extensive
record.  The motion is DENIED.


                              David F. Barbour
                              Administrative Law Judge