Buck Creek Coal Inc. (ALJ decision, October 3, 1996)

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

2

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,

3

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

/lt

4