Tony Chaney, Employed by Morton Salt Division/Morton Thiokol Inc.

Plain-English summary

Tony Chaney was a mine maintenance supervisor at Morton Salt's Weeks Island Mine. MSHA sought a $400 civil penalty for an alleged knowing violation of 30 C.F.R. § 57.9003. Chaney did not answer the penalty proposal, and he also did not respond to the judge's order to show cause. The judge entered default under the Commission's rules and ordered Chaney to pay the proposed $400 penalty immediately.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.9003
• Outcome: Default was entered and the proposed $400 civil penalty was affirmed as final.
• Key point: Failure to answer a civil penalty proposal, followed by failure to respond to an order to show cause, resulted in default and assessment of the proposed penalty.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. T. CHANEY
DDATE:
19890711
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 89-56-M
PETITIONER A.C. No. 16-00970-05614-A

      v.                           Morton Salt Weeks Island Mine

TONY CHANEY, EMPLOYED BY
MORTON SALT DIVISION/
MORTON THIOKOL INC.

                        DEFAULT DECISION

Before: Judge Koutras

Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent Tony
Chaney pursuant to section 110(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(c). The petitioner seeks a
civil penalty assessment in the amount of $400, against the
respondent for an alleged knowing violation of mandatory safety
standard 30 C.F.R. 57.9003, as noted in a section 104(d)(2)
Order No. 2866484, issued on August 25, 1987, at the Weeks Island
Mine operated by Morton Thiokol, Inc., in New Iberia, Iberia
Parish, Louisiana. According to the proposal filed by the
petitioner, the respondent was employed at this mine as a mine
maintenance supervisor, and was acting in that capacity at the
time the order in question was issued.

 The pleadings in this case reflect that copies of the

petitioner's proposed civil penalty assessment were served on the
respondent by certified mail on March 16, and 24, 1989, and the
return certified mailing receipt from the U.S. postal service
reflects that the respondent received the proposed civil penalty
assessment notification on March 27, 1989. However, the
respondent failed to file an answer to the civil penalty
assessment proposal as required by Commission Rule 28, 29 C.F.R.
2700.28

 In view of Mr. Chaney's failure to file an answer, I issued

an Order to Show Cause on May 22, 1989, directing him to explain
why he should not be held in default and immediately ordered to
pay the proposed civil penalty assessment for his failure to file
an answer to the civil penalty assessment proposal filed against

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him by the petitioner. The order further directed Mr. Chaney to
respond within ten (10) days. The return certified mailing
receipt from the U.S. Postal Service reflects that Mr. Chaney
received my order on May 24, 1989. However, as of this date, he
has not responded.

                            Discussion

 The applicable Commission Rules in this case provide as

follows:

      29 C.F.R.   2700.28

        2700.28 Answer.

      A party against whom a penalty is sought shall file and
      serve an answer within 30 days after service of a copy
      of the proposal on the party. An answer shall include a
      short and plain statement of the reasons why each of
      the violations cited in the proposal is contested,
      including a statement as to whether a violation
      occurred and whether a hearing is requested.

      29 C.F.R.   2700.63

        2700.63 Summary disposition of proceedings.

      (a) Generally. When a party fails to comply with an
      order of a judge or these rules, an order to show cause
      shall be directed to the party before the entry of any
      order of default or dismissal.

      (b) Penalty proceedings. When the judge finds the
      respondent in default in a civil penalty proceeding,
      the judge shall also enter a summary order assessing
      the proposed penalties as final, and directing that
      such penalties be paid.

 The record in this case establishes that the respondent was

served with copies of the petitioner's proposal for assessment of
civil penalty for the alleged violation in question and that he
has failed to file a timely answer. In addition, he has failed to
avail himself of an opportunity to explain why he did not file a
timely answer, and he was advised of the consequences of his
failure to do so. He has also failed to respond to my show cause
order where he was specifically advised that his failure to
respond and file an answer would place him in default. Under the
circumstances, I conclude and find that the respondent Tony
Chaney is in default and has waived his right to be further heard
in this matter. I see no reason why the petitioner's proposed
civil penalty assessment of $400 should not be affirmed and a

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final order entered assessing this penalty against Mr. Chaney as
the final order of the Commission.

                             ORDER

 Pursuant to Commission Rule 63, 29 C.F.R.   2700.63,

judgment by default is herewith entered in favor of the
petitioner, and the respondent Tony Chaney IS ORDERED to
immediately pay to MSHA the sum of $400, as the final civil
penalty assessment for the violations in question.

                         George A. Koutras
                         Administrative Law Judge