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KNAAK SAND
Docket No. CENT 2002-127-M
September 11, 2002



              FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   OFFICE OF ADMINISTRATIVE LAW JUDGES
                         2 Skyline, Suite 1000
                          5203 Leesburg Pike
                      Falls Church, Virginia 22041

                         September 11, 2002

SECRETARY OF LABOR,                 : CIVIL PENALTY PROCEEDINGS
 MINE SAFETY AND HEALTH             :
 ADMINISTRATION (MSHA),             : Docket No. CENT 2002-127-M
               Petitioner           : A.C. No. 13-02194-05501
                                    :
          v.                        : Docket No. CENT 2002-193-M
                                    : A.C. No. 13-02194-05502
KNAAK SAND,                         :
               Respondent           : Knaak Sand


                      ORDER DENYING REQUEST FOR RECUSAL

     On June 6, 2002, I conducted a telephone conference with James V. Knaak,
sole proprietor of Knaak Sand, and Thomas J. Pavlat, a Conference & Litigation
Representative of the Mine Safety and Health Administration.  During the
telephone conference Mr. Knaak raised jurisdictional questions.  Consistent with
this Commission's decision and the longstanding Federal appellate case law cited
in Jerry Ike Harless Towing, Inc., 16 FMSHRC 683 (April 1994), I  informed Mr.
Knaak that sand and gravel facilities generally are subject to Mine Act
jurisdiction.

     In correspondence dated August 23, 2002, Mr. Knaak, citing the June 6
telephone conference that addressed the issue of jurisdiction, stated "[i]n
fairness to me, I believe I should have a different judge, that will at least
listen to me before he finds in favor of the government."  I construe the August
23 letter as a request for recusal.

     In response to Mr. Knaak's August 23 letter, on September 11, 2002, I
initiated a telephone conference with Mr. Knaak and the Secretary's counsel
Edward Falkowski.  I again explained the case law concerning Mr. Knaak's
jurisdictional objections.  I requested  Mr. Falkowski to provide a copy of the
Commission's Harless decision for Mr. Knaak's information.  I assured Mr. Knaak
that I had not prejudged his case.  However, I also emphasized that, in deciding
this matter, I was bound by statutory law and case precedent.

     Commission Rule 55(f), 29 C.F.R. § 2700.55(f), authorizes the presiding
judge to hold conferences in an effort to simplify issues.  Mr. Knaak's apparent
disappointment with regard to the case law as it relates to his jurisdictional
objections does not provide a basis for my recusal.  Accordingly, the request
for recusal IS DENIED.  Consequently, the hearing will convene as scheduled at
9:00 a.m. on Wednesday, October 16, 2002.  The hearing location will be
specified in a subsequent Order.



                              Jerold Feldman
                              Administrative Law Judge

Distribution: (Certified Mail)

Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80201

James V. Knaak, Knaak Sand, Box 1, Eldon, IA 52554

/hs