Buck Creek Coal Inc.

Plain-English summary

Buck Creek Coal Inc. faced 12 alleged violations at its Buck Creek Mine, and the Secretary sought $13,612 in civil penalties. The cases had been stayed while related criminal proceedings were pending, and the company later pleaded guilty to all 12 criminal counts. Buck Creek did not answer the Secretary's discovery requests, an order compelling responses, or the motion for default. Judge T. Todd Hodgdon found the company in default, affirmed the listed citations and orders, and assessed $13,612 in penalties.

Decision snapshot

• Cited provisions: 30 U.S.C. § 815; 30 C.F.R. §§ 2700.59 and 2700.66(a)
• Outcome: The listed citations and orders were affirmed by default, and Buck Creek Coal Inc. was ordered to pay $13,612.00.
• Key point: Failure to comply with an order compelling discovery, after a clear warning, supported entry of default without another order to show cause.

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



                       October 3, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 93-261
Petitioner : A.C. No. 12-02033-03596
v. :
: Docket No. LAKE 93-268
BUCK CREEK COAL INC., : A.C. No. 12-02033-03597
Respondent :
: Docket NO. LAKE 93-273
: A.C. No. 12-02033-03598
:
: Docket No. LAKE 93-278
: A.C. No. 12-02033-03599
:
: Buck Creek Mine

                       DEFAULT DECISION

Before: Judge Hodgdon

 These cases are before me on 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 12
violations of the Secretary’s mandatory health and safety
standards and seek penalties of $13,612.00. For the reasons set
forth below, I find the company in default, affirm the orders and
citations, and assess penalties of $13,612.00.

 These cases are the first in a long line of proceedings

involving Buck Creek. 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
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

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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.

                         ORDER

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

Inc., in default in these cases. Accordingly, Citation No.
3823590 in Docket No. LAKE 93-261, Order No. 3843663 in Docket
No. LAKE 93-268, Citation Nos. 3843336, 3843337 and 4054443 in
Docket No. LAKE 93-273 and Order Nos. 3037120, 3843435 and
3843582 and Citation Nos. 3843379, 3843380, 3843334 and 4055317
in Docket No. LAKE 93-278 are AFFIRMED. Buck Creek Coal Inc. is
ORDERED TO PAY civil penalties of $13,612.00 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,

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708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Mail)

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