Ezel / Agency Decisions / lake-95-49-alj
FMSHRC ALJ decision Docket LAKE 94-554-R, LAKE 94-530-R, LAKE 94-575-R, LAKE 94-584-R, LAKE 94-681-R, LAKE 94-682-R, LAKE 94-683-R, LAKE 94-684-R, LAKE 94-685-R, LAKE 94-687-R, LAKE 94-688-R, LAKE 94-689-R, LAKE 94-690-R, LAKE 94-691-R, LAKE 95-24, LAKE 94-412-R, LAKE 94-413-R, LAKE 94-560-R, LAKE 94-561-R, LAKE 94-373-R, LAKE 94-374-R, LAKE 94-375-R, LAKE 94-727-R, LAKE 94-728-R, LAKE 94-729-R, LAKE 94-730-R, LAKE 94-731-R, LAKE 94-732-R, LAKE 94-733-R, LAKE 94-734-R, LAKE 94-735-R, LAKE 94-736-R, LAKE 94-738-R, LAKE 94-739-R, LAKE 95-49, LAKE 94-737-R, LAKE 94-740-R, LAKE 94-741-R, LAKE 94-742-R, LAKE 94-743-R, LAKE 94-744-R, LAKE 95-1-R, LAKE 95-2-R, LAKE 95-3-R, LAKE 95-50, LAKE 94-516-R, LAKE 94-520-R, LAKE 94-686-R, LAKE 95-51 Decided December 23, 1996 Citations affirmed Judge T. Todd Hodgdon

Buck Creek Coal, Inc.

Buck Creek Coal, Inc. (FMSHRC LAKE 95-49 and consolidated dockets): Default judgment affirmed with $94,426 penalty

Apply this to your situation

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 failed to respond to the Secretary's discovery requests, an order compelling a response, and a later motion for default. Judge T. Todd Hodgdon found the company in default and affirmed the listed orders and citations. The decision states that the proceedings had previously been stayed while criminal actions against the company were pending. Buck Creek was ordered to pay $94,426 within 30 days, after which the proceedings would be dismissed.

Decision snapshot

  • Governing provisions: 29 C.F.R. § 2700.59; 29 C.F.R. § 2700.66(a); 30 U.S.C. § 815
  • Outcome: The listed orders and citations were affirmed, and a total civil penalty of $94,426 was assessed, payable within 30 days.
  • Key point: Continued failure to respond to discovery and a judge's order can support a default decision affirming contested citations and assessing penalties.

Full text (FMSHRC public release)


[DOCID: f:l94-554r.wais]

BUCK CREEK COAL, INC.
December 23, 1996
LAKE 94-554-R

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                      December 23, 1996

BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 94-554-R
: Citation No. 4261760; 6/27/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 94-530-R
ADMINISTRATION (MSHA), : Citation No. 3859805; 6/22/94
Respondent :
: Docket No. LAKE 94-575-R
: Citation No. 3037098; 7/5/94
:
: Docket No. LAKE 94-584-R
: Citation No. 4050835; 7/7/94
:
: Docket No. LAKE 94-681-R
: Citation No. 4260423; 8/17/94
:
: Docket No. LAKE 94-682-R
: Citation No. 4260424; 8/18/94
:
: Docket No. LAKE 94-683-R
: Citation No. 4260425; 8/22/94
:
: Docket No. LAKE 94-684-R
: Citation No. 4260426; 8/22/94
:
: Docket No. LAKE 94-685-R
: Citation No. 4260427; 8/25/94
:
: Docket No. LAKE 94-687-R
: Citation No. 3844462; 8/18/94
:
: Docket No. LAKE 94-688-R
: Citation No. 4258569; 8/23/94
:
: Docket No. LAKE 94-689-R
: Citation No. 4258570; 8/24/94
:
: Docket No. LAKE 94-690-R
: Citation No. 4261934; 8/23/94
:
: Docket No. LAKE 94-691-R
: Citation No. 4261935; 8/24/94
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-24
Petitioner : A.C. No. 12-02033-03648
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :
:
BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 94-412-R
: Citation No. 4262374; 5/28/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 94-413-R
ADMINISTRATION (MSHA), : Citation No. 4262375; 5/28/94
Respondent :
: Docket No. LAKE 94-560-R
: Citation No. 4259847; 6/30/94
:
: Docket No. LAKE 94-561-R
: Citation No. 4259848; 6/30/94
:
: Docket No. LAKE 94-373-R
: Citation No. 4262277; 5/29/94
:
: Docket No. LAKE 94-374-R
: Citation No. 4262278; 5/29/94
:
: Docket No. LAKE 94-375-R
: Citation No. 4262279; 5/29/94
:
: Docket No. LAKE 94-727-R
: Citation No. 4260432; 9/12/94
:
: Docket No. LAKE 94-728-R
: Citation No. 4268171; 9/13/94
:
: Docket No. LAKE 94-729-R
: Citation No. 4268172; 9/13/94
:
: Docket No. LAKE 94-730-R
: Citation No. 4268173; 9/13/94
:
: Docket No. LAKE 94-731-R
: Citation No. 4268174; 9/13/94
:
: Docket No. LAKE 94-732-R
: Citation No. 4268175; 9/13/94
:
: Docket No. LAKE 94-733-R
: Citation No. 4268176; 9/14/94
:
: Docket No. LAKE 94-734-R
: Citation No. 4268177; 9/14/94
:
: Docket No. LAKE 94-735-R
: Citation No. 4268178; 9/14/94
:
: Docket No. LAKE 94-736-R
: Citation No. 4268179; 9/14/94
:
: Docket No. LAKE 94-738-R
: Citation No. 4057021; 9/14/94
:
: Docket No. LAKE 94-739-R
: Citation No. 4057022; 9/14/94
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-49
Petitioner : A.C. No. 12-02033-03651
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :
:
BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 94-737-R
: Citation No. 4268180; 9/14/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 94-740-R
ADMINISTRATION (MSHA), : Citation No. 4057023; 9/15/94
Respondent :
: Docket No. LAKE 94-741-R
: Citation No. 4057024; 9/15/94
:
: Docket No. LAKE 94-742-R
: Citation No. 4057025; 9/15/94
:
: Docket No. LAKE 94-743-R
: Citation No. 4057026; 9/15/94
:
: Docket No. LAKE 94-744-R
: Citation No. 4057027; 9/15/94
:
: Docket No. LAKE 95-1-R
: Citation No. 4260037; 9/16/94
:
: Docket No. LAKE 95-2-R
: Citation No. 4262135; 9/19/94
:
: Docket No. LAKE 95-3-R
: Citation No. 4262136; 9/19/94
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-50
Petitioner : A.C. No. 12-02033-03652
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :
:
BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 94-516-R
: Citation No. 3862717; 6/19/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 94-520-R
ADMINISTRATION (MSHA), : Citation No. 3862718; 6/20/94
Respondent :
: Docket No. LAKE 94-686-R
: Citation No. 4260428; 8/25/94
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-51
Petitioner : A.C. No. 12-02033-03649
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :

                     DEFAULT DECISION

Before: Judge Hodgdon

 These  cases  are before me on Notices of Contest  filed  by

Buck Creek Coal, Inc., Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 815. The petitions allege 45 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $94,426.00. For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $94,226.00.

 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
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.

                          ORDER

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

Inc., IN DEFAULT in these cases. Accordingly, Order No. 4261760,
and Citation Nos. 3859805, 3037098, 4050835, 4260423, 4260424,
4260425, 4260426, 4260427, 3844462, 4258569, 4258570, 4261934 and
4261935 in Docket Nos. LAKE 94-554-R, LAKE 94-530-R, LAKE 94-575-
R, LAKE 94-584-R, LAKE 94-681-R, LAKE 94-682-R, LAKE 94-683-R,
LAKE 94-684-R, LAKE 94-685-R, LAKE 94-687-R, LAKE 94-688-R, LAKE
94-689-R, LAKE 94-690-R, LAKE 94-691-R and LAKE 95-24; and Order
Nos. 4262374, 4262375, 4259847 and 4259848 and Citation Nos.
4262277, 4262278, 4262279, 4260432, 4268171, 4268172, 4268173,
4268174, 4268175, 4268176, 4268177, 4268178, 4268179, 4057021 and
4057022 in Docket Nos. LAKE 94-412-R, LAKE 94-413-R, LAKE 94-560-
R, LAKE 94-561-R, LAKE 94-373-R, LAKE 94-374-R, LAKE 94-375-R,
LAKE 94-727-R, LAKE 94-728-R, LAKE 94-729-R, LAKE 94-730-R, LAKE
94-731-R, LAKE 94-732-R, LAKE 94-733-R, LAKE 94-734-R, LAKE 94-
735-R, LAKE 94-736-R, LAKE 94-738-R, LAKE 94-739-R and LAKE 95-
49; Citation Nos. 4268180, 4057023, 4057024, 4057025, 4057026,
4057027, 4260037, 4262135 and 4262136 in Docket Nos. LAKE 94-737-
R, LAKE 94-740-R, LAKE 94-741-R, LAKE 94-742-R, LAKE 94-743-R,
LAKE 94-744-R, LAKE 95-1-R, LAKE 95-2-R, LAKE 95-3-R and LAKE 95-
50; and Order Nos. 3862717 and 3862718 and Citation No. 4260428
in Docket Nos. LAKE 94-516-R, LAKE 94-520-R, LAKE 94-686-R and
LAKE 95-51 are AFFIRMED. Buck Creek Coal Inc., or its
successor,[2] is ORDERED TO PAY civil penalties of $94,426.00
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)

FOOTNOTES

 [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.

 [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.

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