Emerald states the UMWA's concern over methane level monitoring ignores the fact that both ventilation and methane monitoring standards exist. For example: 30 C.F.R. § 75.323 requires electrical equipment, except methane monitoring systems, to be shut down if the methane level reaches 1% until the methane is reduced; 30 C.F.R. § 75.342 requires use of methane monitors on face equipment; 30 C.F.R. § 75.334 requires use of a bleeder ventilation system to control the air passing through an area like a longwall glob "to continuously dilute and move methane-air mixtures and other gases, dusts and fumes from the worked-out area away from the active workings"; 30 C.F.R. § 75.362(d) requires examinations for methane on a longwall face at the beginning of the shift, before the start up of equipment and every 20 minutes; 30 C.F.R. § 75.370 requires an operator to have an approved ventilation plan designed "to control methane and respirable dust" which must be reviewed every six months, under 30 C.F.R. § 75.370(g), to "assure that it is suitable to the current conditions of the mine."

   Emerald points out respirable coal dust must be addressed in the required ventilation plan, as well as meet the standards of 30 C.F.R. §§ 70.100 and 75.370. The UMWA ignores the mandatory standards covering float dust, rock dusting, and float dust limits in return airways set forth in 30 C.F.R. §§ 75.400, 75.402 and 75.403.

   Emerald notes that the UMWA has raised "escapeway" issues, but the provisions it wishes to have restored to the 2000 PDO concern "intake airways". Escapeways are addressed by mandatory safety standards. 30 C.F.R. §§ 75.380, 75.384. The tailgate must be maintained as a travelway even if it is not an escapeway. See 30 C.F.R. § 75.384. Ventilation is addressed by a series of standards, under 30 C.F.R. § 75.370.

   Emerald argues the UMWA's generalized evidence concerning undefined and speculative electrical and hydraulic issues should be excluded because not raised in its hearing request or pre-hearing report and they are framed as a series of questions. The UMWA has not connected its proposed evidence to the protection afforded by the standard and thus is irrelevant.

   Emerald argues any evidence concerning accidents at other mines, i.e., Wilberg Mine, Pyros' William Station Mine, and Southmountain Mine, should be excluded as irrelevant and "outdated" because older mandatory safety standards were then in effect. Emerald states those accidents have nothing to do with high voltage longwall equipment and its introduction would cause lengthy (and unnecessary) relitigation of those matters.

   The MSHA opposes Emerald's Motion in Limine as it attempts to exclude most, if not all of the UMWA's evidence and argues it should be treated as a motion for summary decision, under 30 C.F.R. § 44.40.

   30 C.F.R. § 44.1(b) provides:

The rules shall be liberally construed to carry out the purpose of the Act by assuring adequate protection of the miners and to secure a just and prompt determination of all proceedings consistent with adequate consideration of the issues involved.

   30 C.F.R. § 44.14, Request for Hearing, states:

    A request for hearing filed in accordance with § 44.13 of this part must be filed within 30 days after service of the proposed decision and shall include:

    (a) A concise summary of position on the issues of fact or law desired to be raised by the party requesting the hearing, including specific objections to the proposed decision. A party other than the petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition, and

    (b) An indication of a desired hearing site.

    (c) Partial Appeal. (1) If the Administrator has issued a proposed decision and order granting the requested modification, a request for hearing on the proposed decision and order may be made by any party based upon objection to one or more of the terms and conditions of the Administrator's proposed decision and order. If such a request for hearing is made, the request should specify which of the terms and conditions should be the subject of the hearing.

    (2) During the pendency of the partial appeal, the proposed decision and order of the Administrator will become final on the 30th day after service thereof, unless a request for hearing on the proposed decision and order is filed in accordance with paragraph (a) of this section by any other party. The decision and order will remain in effect as proposed by the Administrator

until the terms and conditions for which the hearing was requested are modified, affirmed or set aside by a final order of the presiding administrative law judge or the Assistant Secretary. The presiding administrative law judge shall take such action upon a determination of whether

(i) The terms and conditions for which the hearing was requested are necessary to ensure that the alternative method of achieving the result of the standard will at all times guarantee to the miners at the mine at least the same measure of protection afforded to the miners at the mine by such standard: or

(ii) In the case of a petition involving a finding by the Administrator of a diminution of safety to the miners caused by application of the standard at the mine, whether the terms and conditions for which the hearing was requested are necessary to provide equivalent protection to the miners at the mine from the hazard against which the standard is directed.

   The two-part standard of review of the petition for modification and ensuing Proposed Decision and Order ("PDO") is straight forward. That is (1) whether, the conditions of the modification of 30 C.F.R. § 75.1002, set forth in the proposed decision & order ("PDO") of the MSHA, will at all times guarantee no less than the same measure of protection afforded the miners at such mine by mandatory safety standard 30 C.F.R. § 75.1002? (This is 30 U.S.C. § 811(c) and 30 C.F.R. §§ 44.4(a)(1) & 44.14(c)(2)(i)) and (2) taking into account both the advantages and disadvantages of the alternative method set forth in the PDO, including effects unrelated to the goals of the original standard, if the approved modification will achieve a net gain or at least equivalence in overall mine safety? (UMWA v. MSHA, 928 F.2d 1200 (D.C. 1991)). These issues define the scope of the evidence which may properly be admitted.

   ". . . [T]he administrative law judge shall exclude evidence which is irrelevant, immaterial or unduly repetitious." 30 C.F.R. § 44.30(c)(1); see, International Union UMWA v. Federal Mine Safety and Health Administration, 931 F.2d 908, 913 (D.C. Cir. 1991).

   A miner or representative of miners who has reasonable grounds to believe a violation of the Act or a mandatory safety or health standard, or an imminent danger exists may, under section 103(g) of the Act, may notify the Secretary of the same, in writing, and have the right to a prompt special inspection. 30 C.F.R. §§ 43.2, 43.5. The miner or representative must be advised of the results of the inspection. When the Secretary does not issue a citation, the complainant has an informal review right at the District manager's level. 30 C.F.R. § 43.7(a)-(d). Further, Subchapter P, 30 C.F.R. part 100, contains provisions for imposition of civil penalties for violations of the Act.

   The fact the UMWA did not state it was seeking a "partial" appeal, as argued by Emerald, is not determinative. One must examine the written hearing request itself, rather than the elusive intent of the party, to ascertain whether the appeal is a "global" versus "partial" appeal. The UMWA asked for a hearing on the issue of whether the alternative method proposed by Emerald and as amended by the recommendations of the MSHA will achieve the same measure of protection afforded by 30 C.F.R. § 75.1002. It then listed its specific challenges.

   While the regulatory language here is not a model of clarity, its appears to have a logical purpose given the effects on a PDO. That is, if a "global" appeal, the new PDO does not take effect. 30 C.F.R. § 44.13(b). In this case, then the 1995 PDO

standard, a "mandatory safety standard", would remain in effect. 30 C.F.R. § 44.4(c). If a "partial" appeal, the new PDO takes effect until acted upon by an administrative law judge or the Assistant Secretary. Presumably, this scheme anticipates the Administrator knows her job, has thoroughly evaluated the safety impact of the modification on miners, and has determined the requested modification is appropriate. Thus, the proposed modifications have been through the MSHA's "safety filter."

   Where less than all, i.e., one or more terms and conditions, of the changes or a only a "part" of the changes are challenged presumably the red safety flag is not raised as high as when the entire modification or "all" of the modification is challenged. Fine-tuning may be required in partial appeal cases versus potentially discarding an entire proposal in global appeals. Moreover, when only six of forty-one provisions, as here, are challenged it makes little practical sense to burden the parties, particularly the respondent or petitioner here, with the requirement of litigating seven times as many issues and potentially and unnecessarily protracting the proceedings. A challenging party's intent cannot have the effect of determining which safety standard remains in effect upon a appeal. This is the function of the regulation.

   The Administrator would have me adopt its position that § 44.14(c) was solely intended to allow a mine operator granted a modification to appeal to obtain relief from mandatory safety standards while it challenges conditions imposed by the Administrator. The Administrator cites no authority or basis for this position which is contrary to the wording of the section itself. Section 44.14(c) states a request for hearing "may be made by any party based upon objections to one or more of the terms and conditions. . .". (Emphasis added). Deference is not due to an agency interpretation which strains the plain and natural meaning of words or implies language that does not exist in the regulation. O'Brockton v. Eastern Associated Coal Co., 1994 WL 186057 (DOL 1994) citing Director, OWCP, v. Barnes and Tucker Co. [Molnar], 969 F.2d 1524, 1527 (3d Cir. 1992). Moreover, courts have questioned such interpretations first made in litigation and not previously asserted. See, e.g., Good Samaritan Hospital v. Shalala, 113 S.Ct. 2151, 2161 (1993). The Administrator has not alluded to anything which suggests this interpretation had ever been articulated or was a long standing one. I thus do not give deference to the Administrator's interpretation which is contrary to the plain language of the regulation.

   If, in this matter, I were to interpret the UMWA's written hearing request differently, that is, that it was a "global" appeal, the regulatory provision concerning "partial" appeals would be rendered largely meaningless. I find given its hearing request, the UMWA's request amounts to a "partial" appeal.

   Given that the UMWA's request amounts to a "partial" appeal, I find the 2000 PDO, although not "final" under 30 C.F.R. § 44.14(c)(2), is the one currently in effect. It will remain so until the terms and conditions which are the subject of the contest are modified, affirmed or set aside in a final order by the undersigned or the Assistant Secretary.

   The UMWA speculation over the potential adverse safety impact, i.e., electrical, methane gas, respirable coal dust, ventilation, methane monitoring, rock dust, escapeways, hydraulic, of a potential increase in the size of Emerald's longwall panels does not provide a basis for the admission of evidence concerning the impact of the 2000 PDO. Its complaints that raising such issues in this forum is the only way the UMWA's concerns will be seriously considered because while the plan approval process permits UMWA comments, there is no agency obligation to consider or explain its treatment of the miners' concerns and no judicial review is permitted likewise does not provide a basis for the admission of evidence concerning the impact of the 2000 PDO. Evidence concerning the Williams Station and Wilberg Mines rapid plan approval process, ensuing hazards and investigations, to illustrate the deficiencies and unreliability of the plan approval process, has little if any apparent relevance to this proceeding.

   Recognizing that effects unrelated to the goals of the original standard are relevant, unless the UMWA can show how the modification, permitted by the 2000 PDO, from 30 C.F.R. § 75.1002, a high-voltage electrical standard, may have a potential effect on issues related to escapeways, rock dusting, methane gas monitoring, respirable coal dust, training, roof support, etc., absent speculation concerning Emerald's future plans, I reiterate I am not inclined to admit evidence related to procedures and rules specifically addressed by other mandatory safety regulations. The UMWA's comments, in its Reply to Brief of Administrator, March 16, 2001, do not alone establish the requisite connection.

   Said in other words, the UMWA, prior to presenting its evidence, must show how it is relevant to the two issues before me, i.e.: (1) the 2000 PDO will at all times guarantee no less than the same measure of protection afforded the miners at such mine by mandatory safety standard 30 C.F.R. § 75.1002 and (2) taking into account both the advantages and disadvantages of the alternative method set forth in the 2000 PDO, including effects unrelated to the goals of the original standard, if the approved modification will achieve a net gain or at least equivalence in overall mine safety.

   Finally, if I were to treat Emerald's Motion in Limine as a motion for summary decision, under 30 C.F.R. § 44.40, I would deny it because no party has shown there are no genuine issues of fact remaining for the hearing.

   I presently address the UMWA's April 9, 2001 Request to Enforce the 1995 Proposed Decision and Order seeking clarification of my March 22, 2001 Ruling and Order because the hearing will resume next week. The UMWA has not presented sufficient facts to show compliance with the procedural requirements of 30 C.F.R. §§ 43.2, 43.5. Moreover, the "right to review" procedures, under subpart 43, do not authorize my review of the agency's decision not to issue citations for alleged violations.

   The thirty-day requirement cited by MSHA, 30 C.F.R. § 44.32(a), pertains to the effective date of the final decision "on the merits" by the administrative law judge. Since a final decision has not yet been issued on the merits of the appeal, this provision is not applicable to the present matter. According to the Administrator's own regulatory scheme, under 30 C.F.R. subpart B, and contrary to MSHA's argument that the 2000 PDO may not be "self-executing", during the pendency of this appeal, it became "effective", but not "final", under 30 C.F.R. § 44.14(c)(2), and according to the regulation will remain so until affirmed, changed or set aside by the administrative law judge or the Assistant Secretary. Thus, the 1995 PDO is not presently in effect. The distinction between a PDO being "effective" versus "final" is reinforced by a reading of the regulatory provisions, under 30 C.F.R. § 44.16(k), dealing with applications for temporary relief to give effect to PDOs, 30 C.F.R. § 44.50, which provides the new PDO is "operative" pending resolution of the partial appeal. "Only a decision by the Assistant Secretary shall be deemed final agency action for purposes of judicial review." 30 C.F.R. § 44.51(not addressing enforcement). Unfortunately, MSHA points to no regulatory authority and I find none requiring an operator to notify the latter of compliance, in writing, before a new PDO becomes effective.