FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, D.C. 20001

October 24, 2006

ORDER DENYING REQUEST TO HOLD RESPONSE

TO ORDER TO SHOW CAUSE IN ABEYANCE

            To date, Aracoma has filed more than 350 Notices of Contest under section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R. § 815(d), that it has contemporaneously agreed to stay pending its contest of the Secretary’s proposed civil penalties. On August 25, 2006, Aracoma was ordered to show cause why its contest of the captioned citations should not be dismissed as a result of its apparent contravention of Commission Rule 20(e)(1)(ii), 29 C.F.R. § 2700.20(e)(1)(ii) because it fails to adequately specify the relief requested, and because it is a duplicative and needless consumption of the Commission’s resources. 29 FMSHRC 763. The August 25, 2006, Order to Show Cause issued to Aracoma is incorporated by reference.

            During a subsequent telephone conference, Aracoma was advised to hold its response to the August 25 Order in abeyance pending the disposition of a similar Order to Show Cause

in Marfork Coal Company, Inc. (Marfork), Docket Nos. WEVA 2006- 788-R through

WEVA 2006-790-R. 29 FMSHRC 745 (Aug. 2006). Marfork’s 105(d) contest was

dismissed on September 27, 2006. Order of Dismissal, 29 FMSHRC ___ (Sept. 2006).

            The Marfork matter having been resolved, on September 29, 2006, Aracoma was ordered to respond to the Order to Show Cause within fifteen (15) days. On October 11, 2006, Aracoma requested a fourteen (14) day extension, until October 27, 2006, to respond because of the “complex” issues raised in the Order to Show Cause.

            During an October 20, 2006, telephone conference with the parties, Aracoma stated that it was contesting virtually all citations to document its ultimate intention to contest all proposed civil penalties in the event Aracoma seeks to reopen a civil penalty because it was paid in error. During the course of the telephone conference, Aracoma requested that its response to the

Show Cause Order be held in abeyance pending the disposition of an anticipated appeal of the Marfork dismissal order. Aracoma’s request IS DENIED.

            Once again, Aracoma is requested to analyze the circumstances that it believes distinguish its situation from Marfork. Aracoma should also explain why one written correspondence to the Secretary and/or to this Commission evidencing its intention to contest all civil penalties, in lieu of the multitude of contests it has and continues to file, would not serve the same purpose it purportedly seeks to achieve. Accordingly, IT IS ORDERED that Aracoma respond to the Show Cause Order on or before November 8, 2006. Further requests for extensions to respond will not be favorably entertained.

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

Distribution: (Facsimile and Certified Mail)

David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East,

P.O. Box 273, Charleston, WV 25321

Francine A. Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209-2247

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