Ezel / Agency Decisions / lake-171-r-alj
FMSHRC ALJ decision Docket LAKE 171-R, LAKE 95-214, LAKE 95-138-R, LAKE 95-206, LAKE 95-5-R, LAKE 95-62-R, LAKE 95-185, LAKE 95-33-R, LAKE 95-34-R, LAKE 95-36-R, LAKE 95-40-R, LAKE 95-41-R, LAKE 95-42-R, LAKE 95-215 Decided November 1, 1996 Citations affirmed Judge T. Todd Hodgdon

Buck Creek Coal, Inc.

Buck Creek Coal, Inc. (FMSHRC LAKE 171-R, LAKE 95-214, LAKE 95-138-R, LAKE 95-206, LAKE 95-5-R, LAKE 95-62-R, LAKE 95-185, LAKE 95-33-R, LAKE 95-34-R, LAKE 95-36-R, LAKE 95-40-R, LAKE 95-41-R, LAKE 95-42-R, and LAKE 95-215): Default judgment and $50,364 penalty

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This order from 1996 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.

Currency note: this decision dates from 1996
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final ALJ decision, not Commission precedent
This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not Commission precedent. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the agency's own release.
Read the official release (fmshrc.gov)

Plain-English summary

Buck Creek Coal, Inc. faced 28 alleged violations in consolidated contest and civil penalty proceedings involving the Buck Creek Mine. The company did not answer discovery requests, an order compelling responses, or the Secretary’s motion for default. Judge T. Todd Hodgdon found the company in default, affirmed the listed citations and orders, and assessed $50,364 in civil penalties. The decision states that bankruptcy did not automatically stay the Commission proceedings and ordered payment within 30 days, after which the proceedings would be dismissed.

Decision snapshot

  • Cited standards: The decision applies the Mine Act’s civil-penalty provision at 30 U.S.C. § 815 and Commission Rules 59 and 66(a).
  • Outcome: The company was found in default, the listed citations and orders were affirmed, and $50,364 in penalties was assessed.
  • Key point: Repeated failure to answer discovery and comply with a discovery order can support default across consolidated contest and civil penalty proceedings.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

                     November 1, 1996

BUCK CREEK COAL, INC., : CONTEST PROCEEDING
Contestant :
v. : Docket No. LAKE 95-138-R
: Citation No. 4259597; 11/21/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Buck Creek Mine
ADMINISTRATION (MSHA), : Mine ID 12-02033
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-185
Petitioner : A.C. No. 12-02033-03661
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :
:
BUCK CREEK COAL, INC., : CONTEST PROCEEDING
Contestant :
v. : Docket No. LAKE 171-R
: Citation No. 4259500; 12/8/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Buck Creek Mine
ADMINISTRATION (MSHA), : Mine ID 12-02033
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket NO. LAKE 95-206
Petitioner : A.C. No. 12-02033-03662
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondant :
:

Page 2

BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 95-33-R
: Citation No. 4262565; 10/5/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 95-34-R
ADMINISTRATION (MSHA), : Citation No. 4262566; 10/5/94
Respondent :
: Docket No. LAKE 95-36-R
: Citation No. 4260185; 10/5/94
:
: Docket No. LAKE 95-40-R
: Citation No. 4260189; 10/6/94
:
: Docket No. LAKE 95-41-R
: Citation No. 4260190; 10/5/94
:
: Docket No. LAKE 95-42-R
: Citation No. 4260191; 10/5/94
:
: Buck Creek Mine
: Mine ID 12-02033
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-214
Petitioner : A.C. No. 12-02033-03663
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :
:
BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 95-5-R
: Citation No. 4262139; 9/20/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 95-62-R
ADMINISTRATION (MSHA), : Citation No. 4260205; 10/7/94
Petitioner :
: Buck Creek Mine
: Mine ID 12-02033
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket NO. LAKE 95-215
Petitioner : A.C. No. 12-02033-03665
:

                        2

Page 3

BUCK CREEK COAL, INC., : Buck Creek Mine
Respondent :

                      DEFAULT DECISION

Before: Judge Hodgdon

 These cases are before me on Notices of Contest filed by

Buck Creek Coal, Inc., and Petitions for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Buck Creek Coal,
Inc., pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petitions allege 28
violations of the Secretary’s mandatory health and safety
standards and seek penalties of $50,364.00. For the reasons set
forth below, I find the company in default, affirm the orders and
citations, and assess penalties of $50,364.00.

 These cases are several in a long line of proceedings

involving Buck Creek.1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.

 On May 1, 1996, counsel for the Secretary served

Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.

 Based on the Secretary’s unopposed motion, an Order

Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary’s
discovery requests within 21 days of the date of the order. The
company was further cautioned that “[f]ailure to respond will

1
   Because of the number of cases involving Buck Creek,

Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.

                             3

Page 4

result in the issuance of an Order of Default, without the
issuance of a prior Order to Show Cause.”

 The order was sent by Certified Mail-Return Receipt

Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company’s bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.

 On September 17, 1996, the Secretary filed a Motion for an

Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.

 I am aware that Buck Creek is apparently in bankruptcy.

However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b)(4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).

 Commission Rule 59, 29 C.F.R. § 2700.59, states that “[i]f

any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . .” Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that “[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal.”

 In view of the Respondent’s consistent failure to respond to

the Secretary’s discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent’s subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary’s
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.

                            4

Page 5

                         ORDER

 Based on the above, I find the Respondent, Buck Creek Coal

Inc., in default in these cases. Accordingly, Citation Nos.
4259597, 4259566, 4259545, 4259664, 4259665, 4259666 and 4259667
in Docket Nos. LAKE 95-138-R and LAKE 95-185, Order No. 4260193
and Citation No. 4259500 in Docket Nos. LAKE 95-171-R and LAKE
95-206, Order Nos. 4260185, 4260190, 4260191, 4262565, 4262566,
4260189 and 4260207 and Citation Nos. 4259701, 4259702, and
4259703 in Docket Nos. LAKE 95-33-R, LAKE 95-34-R, LAKE 95-36-R,
LAKE 95-40-R, LAKE 95-41-R, LAKE 95-42-R and LAKE 95-214, and
Order No. 4262139 and Citation Nos. 4260205, 4259679, 4259680,
4262681, 4262682, 4262683, 4262684, and 4262685 in Docket Nos.
LAKE 95-5-R, LAKE 95-62-R and LAKE 95-215 are AFFIRMED. Buck
Creek Coal Inc., or its successor,2 is ORDERED TO PAY civil
penalties of $50,364.00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISMISSED.

                           T. Todd Hodgdon
                           Administrative Law Judge

Distribution:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)

Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RR5,
Box 203, Sullivan, IN 47882 (Certified Mail)

Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 S. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Mail)

Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Mail)

/lt

  2
   According to a July 19, 1996, news release, issued by the

United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

                           5

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