Ezel / Agency Decisions / weva-95-16-alj
FMSHRC ALJ decision Docket WEVA 95-16, WEVA 95-64, WEVA 95-65 Decided August 22, 1995 Procedural Judge Paul Merlin

Fern Cove Incorporated

Fern Cove Incorporated (FMSHRC WEVA 95-16): Default entered for $39,049 in penalties

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This order from 1995 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 1995
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 the final decision of the Commission 40 days after issuance under 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

The judge had issued show-cause orders in three civil penalty dockets involving Fern Cove Incorporated and Tanglewood Energy. The cases had been stayed while the Commission considered the operator's request to reopen 120 penalty cases, but the Commission denied that request. The operator did not respond to the show-cause orders or file a response more than 30 days after the Commission's decision. Judge Paul Merlin entered default for the three cases and ordered immediate payment of $39,049.

Decision snapshot

  • Cited standard(s): 30 U.S.C. § 820(c)
  • Outcome: Default was entered in three dockets and the operator was ordered to pay $39,049 immediately.
  • Key point: Failure to respond after show-cause orders and a final Commission refusal to reopen the cases resulted in default.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., SUITE 600
WASHINGTON, D.C. 20006

                       August 22, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH : Docket No. WEVA 95-16
ADMINISTRATION (MSHA), : A. C. No. 46-07062-03619
Petitioner :
: Docket No. WEVA 95-64
v. : A. C. No. 46-07062-03623
FERN COVE INCORPORATED, : Coalbank Fork No. 12
Respondent :
: CIVIL PENALTY PROCEEDING
SECRETARY OF LABOR, : Docket No. WEVA 95-65
MINE SAFETY AND HEALTH : A. C. No. 46-06329-03657
ADMINISTRATION (MSHA), :
Petitioner : Tanglewood No. 2
v. :
TANGLEWOOD ENERGY, :
INCORPORATED, :
Respondent :

                       ORDER OF DEFAULT

Before: Judge Merlin

 A show cause order was issued in Docket No. WEVA 95-16 on

February 8, 1995.

 A show cause order was issued in Docket No. WEVA 95-65 on

February 28, 1995.

 A show cause order was issued in Docket No. WEVA 95-64 on

February 28, 1995.

  On April 27, 1995, an order was issued staying these cases.

The operator had petitioned the Commission for relief in 120 civil
penalty cases where it failed to either timely contest the civil
penalty assessment or was held in default for failing to answer
the Secretary's penalty petition. Therefore, these matters were
stayed pending a decision by the Commission in these cases.

 On July 13, 1995, the Commission issued a decision with

respect to the operator's petition for relief. The Commission
denied the operator's request to reopen the 120 civil penalty
cases. The Commission found that the operator failed to provide
sufficient grounds or adequate explanations to justify relief
from the final orders. Tanglewood Energy Inc. and Fern Cove
Inc., 17 FMSHRC 1105.

 The files contain the return receipt showing that the

operator received a copy of the April 27 order on May 9, 1995.
In addition, the files contain return receipts showing that the
operator received a show cause order for Docket No. WEVA 95-16 on
February 16, 1995, for Docket No. WEVA 95-64 on March 2, 1995,
and Docket No. WEVA 95-65 on March 2, 1995. The operator did
not file an answer or response to the show cause orders in any
of these cases. More than 30 days has past since the Commission's
decision and the operator still has not filed any response.
Therefore, these cases are now ripe for default.

 Accordingly, it is ORDERED that the operator be held in

DEFAULT for the penalty amounts in these cases totaling $39,049
and that it PAY this sum immediately.

                           Paul Merlin
                           Chief Administrative Law Judge

Distribution: (Certified Mail)

Heather Bupp-Habuda, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203

Mr. Randy Burke, President, Fern Cove, Inc., P. O. Box 554,
Oakland, MD 21550

/gl

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