Grateside Coals, Inc.

Plain-English summary

Grateside Coals did not answer civil penalty proposals covering 25 citations in two dockets, totaling $2,444. The company also failed to respond to an order to show cause after receiving it. Judge George A. Koutras found the company in default, held that it waived its right to a hearing, and entered the proposed penalties as final assessments. The respondent was ordered to pay $2,444 immediately.

Decision snapshot

• Governing provisions: 30 U.S.C. § 820(a); 29 C.F.R. §§ 2700.28, 2700.39, and 2700.63
• Outcome: Default judgment was entered, and the proposed civil penalties totaling $2,444 were assessed as final.
• Key point: Failure to answer the penalty proposals and failure to respond to an order to show cause resulted in waiver of a hearing and entry of the proposed penalties.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GRATESIDE COAL
DDATE:
19870505
TTEXT:

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          Federal Mine Safety and Health Review Commission
                Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 87-52
PETITIONER A.C. No. 15-09926-03507

     v.                               Docket No. KENT 87-53
                                      A.C. No. 15-09926-03508

GRATESIDE COALS, INC.,
RESPONDENT Grateside No. 3 Surface

                           ORDER OF DEFAULT

Before: Judge Koutras

                    Statement of the Proceedings

 These proceedings concern proposals for assessment of civil

penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a). Docket No. KENT 87Ä52, concerns the
petitioner's proposals for assessment of civil penalties in the
amount of $1,972, for 20 section 104(a) citations alleging
violations of various mandatory safety standards found in Parts
48 and 77, Title 30, Code of Federal Regulations. Docket No. KENT
87Ä53, concerns proposals of assessment of civil penalties in the
amount of $472, for five section 104(a) citations alleging
violations of certain mandatory safety standards found in Part
77, Title 30, Code of Federal Regulations.

 The petitioner has certified that its civil penalty

proposals were mailed to respondent's counsel of record on
February 27, 1987, and a copy of a letter to counsel from the
petitioner's Nashville, Tennessee Solicitor's Office reflects
that counsel was advised that she had 30 days to file answers
pursuant to Commission Rule 28, 29 C.F.R. 2700.28. Counsel was
also advised that the failure to file answers within the 30Äday
period could result in the proposed assessments being entered as
the final orders of the Commission as provided by procedural Rule
63, 29 C.F.R. 2700.63. As of this date, no answers have been
filed.

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In view of the respondent's failure to file answers to the
petitioner's civil penalty proposals, I issued an Order to Show
Cause on April 10, 1987, ordering the respondent to state within
10 days why it should not be held in default for its failure to
file answers in these proceedings. The certified mail postal
receipt received from the Post Office Department reflects that
counsel for the respondent received my Order on April 16, 1987.
However, counsel has not responded.

                             Discussion

   29 C.F.R.   2700.39, provides as follows:

        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, provides as follows:

        (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 respondent in these proceedings has failed to file

answers to the petitioner's civil penalty proposals, and it has
also failed to respond to my Order to Show Cause. Under the
circumstances, I conclude and find that the respondent is in
default and has waived its right to a hearing. I see no reason
why the petitioner's proposed civil penalty assessments should
not be made the final order of the Commission.

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ORDER

 Judgement by default is herewith entered in favor of the

petitioner, and the respondent IS ORDERED TO IMMEDIATELY PAY to
the petitioner the sum of $2,444, as the final civil penalty
assessments for the citations in question.

                              George A. Koutras
                              Administrative Law Judge