Ezel / Agency Decisions / weva-94-35-alj
FMSHRC ALJ decision Docket WEVA 94-35, WEVA 94-33, WEVA 94-34 Decided December 18, 1996 Citations affirmed Judge Roy J. Maurer

Empire Energy Inc.

Empire Energy Inc. (FMSHRC WEVA 94-35 and consolidated dockets): Default judgment affirmed with $135,000 penalties per respondent

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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

Empire Energy Inc., War Eagle Construction, and Kennie Compton failed to respond to discovery requests, an order compelling responses, and a later motion for default. Judge Roy J. Maurer found the respondents in default and affirmed all citations and orders in the captioned dockets. Each respondent was ordered to pay a $135,000 civil penalty 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: All listed citations and orders were affirmed, and each respondent was assessed a $135,000 civil penalty.
  • Key point: Continued failure to respond to discovery and a judge's order can support a default decision with penalties against each respondent.

Full text (FMSHRC public release)

.
EMPIRE ENERGY, INC.
December 18, 1996
WEVA 94-33

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                      December 18, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-33
Petitioner : A. C. No. 46-08066-03503
v. :
: Seng Camp 1-A
EMPIRE ENERGY, INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-34
Petitioner : A. C. No. 46-08066-03503
v. :
: Seng Camp 1-A
WAR EAGLE CONSTRUCTION :
CORPORATION, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 94-35
Petitioner : A. C. No. 46-08066-03503
v. :
: Seng Camp 1-A
KENNIE COMPTON, :
Respondent :

                     DEFAULT DECISION

Before: Judge Maurer

 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 Empire
Energy, Inc., War Eagle Construction, and Kennie Compton,
person-ally pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815. The petitions allege
11 violations of the Secretary's mandatory health and safety
standards and seek penalties of $135,000 from each respondent.
For the reasons set forth below, I find the respondents in
default, affirm the orders and citations, and assess penalties
of $135,000 against each of the respondents.

 On June 7, 1994, counsel for the Secretary served

Interrogatories and a Request for Production of Documents on the
respondents. On August 13, 1996, counsel filed a Motion to Compel
stating that although respondents had received the discovery
requests, no response to them had been made. Consequently, the
Secretary requested that the respondents be compelled to respond
to the requests and that if the respondents did not respond to the
requests a default decision be issued in the proceedings.
Respondents 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 September 17, 1996.
Respondents were ordered to respond to the Secretary's discovery
requests within 15 days of the date of the order. The respondents
were 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 respondents. The Return Receipt Card has been received from
Kennie Compton indicating that the order was received on September
21, 1996. The envelopes addressed to Empire Energy, Inc. and War
Eagle Construction were returned marked unclaimed.

 On November 22, 1996, the Secretary filed a Motion for an Order

of Default stating that as of that date the respondents had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Respondents have not
responded to the motion.

 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 respondents' 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 respondents 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 respondents' 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 respondents, Empire Energy, Inc.,

War Eagle Construction, and Kennie Compton in default in these cases.
Accordingly, all citations/orders contained in the captioned dockets
are AFFIRMED. Empire Energy, Inc., War Eagle Construction, and Kennie
Compton are each ORDERED TO PAY civil penalties of $135,000 within
30 days of the date of this decision. Upon receipt of payment, these
proceedings are DISMISSED.

                              Roy J. Maurer
                              Administrative Law Judge

Distribution:

Pamela S. Silverman, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)

Empire Energy, Inc., P. O. Box 329, Mallory, WV 25634
(Certified Mail)

War Eagle Construction Corporation, P. O. Box 691, Gilbert, WV 25621
(Certified Mail)

Mr. Kennie Compton, 107 Timberide Drive, Beckley, WV 25801
(Certified Mail)

dcp

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