FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

December 12, 2006

DISMISSAL ORDER

Before: Judge Feldman

            The captioned contest concerns a citation alleging a violation of section 75.1100(2)(b),

30 C.F.R. § 75.1100(2)(b), because of the contestant’s failure to provide a fire valve handle necessary for the connection of a fire hose located along the No. 2 beltline. This mandatory safety standard requires functional firehose outlets at 300-foot intervals along the entire length of a belt conveyor.

            Marfork Coal Company, Inc. (Marfork) filed its contest of Citation No. 7254911 and then contemporaneously agreed to stay its contest until the Secretary proposed her civil penalties. Marfork’s agreement to stay its contest immediately after instituting this proceeding is identical to the circumstances that resulted in the dismissal of its contests in Docket Nos. WEVA 2006-788-R through WEVA 2006-790-R, 28 FMSHRC 842 (Sept. 2006) (ALJ), appeal docketed (Nov. 3, 2006), because, inter alia, it has failed to state the relief it is seeking as required by Commission Rule 20(e)(1)(ii), 29 C.F.R. § 2700.20(e)(1)(ii).

            Marfork asserts it has an absolute and unqualified right to file its contest under section 105(d) without being required to wait to file its contest of the proposed civil penalty under section 105(a). Opening Br. in WEVA 2006-788-R through WEVA 2006-790-R at p.9. However, Marfork’s “contest” elevates form over substance because, although it styles its filing as a 105(d) contest - - by routinely agreeing to stay its “105(d) contests” until the Secretary’s civil

penalty proposal, it indeed is waiting to contest the subject citation in a 105(a) civil penalty proceeding. In other words, Marfork is kicking and screaming over being required to do what it expressly wants to do anyway. Thus, Marfork’s contest is frivolous and an abuse of process.

            Accordingly, the captioned contest proceeding IS DISMISSED because by agreeing to stay this matter rather than requesting an early hearing, Marfork has failed to state the relief it is seeking as required by Commission Rule 20(e)(1)(ii).

                                                                         Jerold Feldman

                                                                         Administrative Law Judge

Distribution: (Certified Mail)

Robert H. Beatty, Jr., Esq., Carol Ann Manunich, Esq., Dinsmore & Shohl, LLP, 2604 Cranberry Square, Morgantown, WV 26508

Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,

22nd Floor, Arlington, VA 22209

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