FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 10, 2006

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER

BY THE COMMISSION:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.        § 801 et seq. (2000). On September 15, 2006, pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, Hosea O. Weaver & Sons, Inc. (“Weaver”) filed with the Commission a petition for interlocutory review of an order issued by Administrative Law Judge David F. Barbour granting the Secretary of Labor’s motion for summary decision and denying Weaver’s motion for summary decision. 28 FMSHRC 688, 692 (July 2006) (ALJ). Judge Barbour also denied Weaver’s motion to certify this ruling to the Commission for interlocutory review. 28 FMSHRC 751, 752 (Aug. 2006) (ALJ). On September 25, 2006, the Secretary filed an opposition to Weaver’s petition for interlocutory review.

  On August 29, 2006, the Commission granted the Secretary’s motion to dismiss Weaver’s Petition for Discretionary Review, or in the Alternative, Petition for Interlocutory Review, which Weaver filed concurrently with its motion to certify the judge’s ruling, on the grounds that it was prematurely filed. 28 FMSHRC 542, 543 (Aug. 2006).

            Upon consideration of the pleadings filed by Weaver and the Secretary, we have determined that Weaver has failed to establish that the order denying its motion for summary decision involves a controlling question of law and that immediate review may materially advance the final disposition of the proceeding. See 29 C.F.R. § 2700.76(a)(2). We therefore deny the petition.

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

Distribution

Adele L. Abrams, Esq.

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

Jack Powasnik, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor West

Arlington, VA 22209-2247

Administrative Law Judge David F. Barbour

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20001-2021