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<br />28. The Tatums raised an interlocutory appeal with this Court, and sought temporary <br />relief. This Court granted the Tatums' request for temporary relief. This Court subsequently <br />remanded the NOV to the Board for further proceedings. <br />29. The Board then reconsidered its April 10, 2001 order. The Board foreclosed the <br />presentation of evidence and argument in the reconsideration hearing and entered the Board <br />Order that is the subject of this Petition for review. <br />BASIS FOR RELIEF <br />The Board Order Violates the Coal Act <br />30. The statements made in paragraphs 1-29 are hereby incorporated by reference. <br />31. The Board is required by statute to hold a hearing on the merits when presented <br />with a petition from an operator for review of a notice of violation. The Board therefore has no <br />authority to vacate an Notice of Violation without a hearing and "without prejudice." Basin <br />requests that this Court remand the NOV to the Board for a determination as to whether a <br />violation exists at the Golden Eagle Mine. <br />The Board Order Violates Federal Law <br />32. The statements made in paragraphs 1-31 are hereby incorporated by reference. <br />33. Federal law requires the Division and the Board to respond to a ten day notice by <br />either taking appropriate action to cause a violation to be corrected, or to show good cause for <br />not taking appropriate action. See Generally 30 C.F.R. § 842.11(b)(1)(ii)(B) <br />34. "Appropriate action" means bringing an enforcement action to cause the violation <br />to be corrected, or some similaz action. 30 C.F.R. § 842.11(b)(1)(ii)(B)(3). <br />35. By vacating the NOV without requiring abatement ofthe conditions that gave rise <br />to the issuance of the NOV or finding that those conditions do not constitute a violation exists, <br />the Division and Board cannot meet the standards set out in the federal regulations for <br />"appropriate action." <br />36. For a mine like the Golden Eagle Mine, [he Division and Board could show "good <br />cause" for not taking enforcement action in four ways. 30 C.F.R. § 842.1 I (b)(1)(ii)(B)(4). First, <br />the Division and the Board could show that no violation exists. Second, the Division and the <br />Board could show that they need more time to determine whether a violation exists, or, third, that <br />they lack jurisdiction over [he operator. Finally, the Board and the Division could show that they <br />are precluded by a court order from enforcing a violation at the mine. <br />37. By dismissing the NOV without prejudice, the Board has effectively refused to <br />detet~rtine whether a violation exists. This refusal violates the requirements of federal law, <br />