<DOC>
[DOCID: f:buckcr2.wais]

 
BUCK CREEK COAL INC.
March 15, 1995
LAKE 94-72


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            March 15, 1995

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       : Docket No. LAKE 94-72, etc.
                                   :
BUCK CREEK COAL INC.               :


                                 ORDER

     On February 17, 1994, Buck Creek Coal Inc. ("Buck Creek") filed 
with the Commission a petition   for   interlocutory review  of 
Administrative  Law Judge T. Todd Hodgdon's February   15,   1995,  
Order Continuing   Stay  (the  "Stay Order").  The  judge   had
previously  stayed proceedings for ninety days  or  until the United 
States Attorney  made a determination   regarding  the criminal
prosecution  of  Buck Creek.   See  Buck  Creek Coal  Inc., 17 FMSHRC 
(February 1995) (Operator's petition for interlocutory  review of the
previous  stay dismissed as moot).  The Stay Order continues the stay 
until May 16, 1995, and  directs the parties to attend  a  status 
conference  on  that  date for the purpose of deciding whether and 
under what conditions the stay should be continued. Stay Order at 5.

     Buck  Creek  urges  the  Commission  to  grant interlocutory 
review  and  relief  from  the Stay  Order  so  that  it  can begin 
to defend itself against the 554 citations  and orders in these 
consolidated dockets. Pet.  at  4.  The  Secretary responds  that 
Commission Procedural Rule 76(a)(1), 29 C.F.R. � 2700.76(a)(1),[1]
precludes our granting interlocutory  review  because the  judge 
has not  certified his ruling, nor  has he denied Buck   Creek's 
motion    for certification.   Opp'n at 3-4. In reply, Buck Creek 
urges the Commission  to  construe   the Stay   Order   as  an 
ongoing denial    of    Buck   Creek's  previously-filed  petition
for interlocutory  review.   Reply at 2.  Buck Creek  asserts  in
the alternative that application  to the judge for certification 
would  be futile and  therefore  should not  be required. Buck 
Creek  notes that it has now filed a motion for  certification 
with the judge. Id. at 2-3 & n.2.

     Rule 76 provides that interlocutory review cannot be granted 
unless the judge has certified his interlocutory ruling  to the 
Commission or has denied a party's motion for certification.  We  
conclude that it would be inappropriate to  rule  on  the  Secretary's
procedural argument in advance of  the  judge's determination of  
Buck Creek's pending  motion.

     Accordingly,  we hold in abeyance our ruling on Buck Creek's
petition  pending  the judge's determination  of  the  motion for 
certification.   Cf. Emery Mining Corp., 11 FMSHRC 1, 3 (January 
1989).


                                 Mary Lu Jordan, Chairman


                                 Joyce A. Doyle, Commissioner


                                 Arlene Holen, Commissioner


                                 Marc Lincoln Marks, Commissioner


**FOOTNOTES**

[1]:Rule 76 states in part:

     (a) Procedure. Interlocutory review by the Commission shall not be
a matter of right but of the sound discretion  of the Commission.

     (1) Review cannot be granted unless;

     (i) The Judge has certified, upon his own motion or the motion of a
party, that his interlocutory ruling involves  a  controlling question of
law and  that  in  his opinion immediate review will materially advance
the final disposition of the proceeding; or

     (ii) The Judge has denied a party's motion for certification of 
the interlocutory ruling to the Commission, and the party files with
the Commission  a  petition  for interlocutory  review  within  30 days 
of the Judge's  denial  of  such  motion  for certification.