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[DOCID: f:k94-1242.wais]

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D & E COAL COMPANY, INC.
October 19, 1995
KENT 94-1242


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                           October 19, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. KENT 94-1242
                Petitioner      :  A.C. No.  15-03013-03537
                                :
          v.                    :  Mine No. 1
                                :
D & E COAL COMPANY, INC.,       :
                Respondent      :

                           DEFAULT DECISION

Before:  Judge Hodgdon

     This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through his
Mine Safety and Health Administration (MSHA), against D & E
Coal Company, Inc., pursuant to Section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. з 815.  The petition
alleges seven violations of the Secretary's mandatory health
and safety standards and seeks a penalty of $35,000.00.  For
the reasons set forth below, I find the company in default,
affirm the orders and assess a penalty of $35,000.00.

     The company has been recalcitrant at all stages of this
proceeding.  The Chief Administrative Law Judge issued two
orders to show cause before D & E responded to the petition
for assessment of penalty.

     On May 9, 1995, a prehearing order was issued to the parties
requesting a response not later than May 26, 1995.  The
order informed the parties that "[f]ailure by any party to
comply with this order will subject the party in default to
a show cause order and possible default decision."

     A copy of a letter, dated June 26, 1995, from the Secretary
to Respondent's counsel was received in this office on June
29.  The letter indicated that the parties had reached a
settlement agreement and requested that the agreement
enclosed with the letter be signed and returned to the
solicitor's office for submission to the judge.

     On August 2, 1995, counsel for the Secretary was informed
by Respondent's attorney, Herman W. Lester, Esquire, that he no
longer represented the company.  Consequently, on August 15,
counsel sent another copy of the agreement directly to D & E
Coal Company, requesting a response by August 31, 1995.  Not
receiving a response by that date, the Secretary filed a
motion for default judgment on September 1, 1995.  The
company did not respond to the motion.

     Commission Rule 66(a), 29 C.F.R. з 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."
Rule 66(c), 29 C.F.R. з 2700.66(c), provides that "[w]hen the
Judge finds a party in default in a civil penalty proceeding, the
Judge shall also enter an order assessing appropriate
penalties and directing that such penalties be paid."

     Accordingly, on September 25, 1995, an Order to Show Cause
was issued ordering the Respondent to show cause within 15
days of the date of the order why a Default Decision finding
that it violated Sections 75.220(a)(1), 75.203(a),
75.370(c), 75.1725(a), 75.334(c)(3) and 75.364(b)(4) of the
Secretary's Regulations, 30 C.F.R. зз 75.220(a)(1), 75.203(a),
75.370(c), 75.1725(a), 75.334(c)(3) and 75.364(b)(4), and
assessing and directing payment of the proposed penalty of
$35,000.00 should not be entered pursuant to Commission Rule
66, 29 C.F.R. з 2700.66.

     The order to show cause was sent to the Respondent's
president by certified mail-return receipt requested.  On October
17, 1995, the order was returned to this office in its original
envelope by the U.S. Postal Service with the notation that it
had been "refused."


                                ORDER

     Based on the above facts, I find that the Respondent, D & E
Coal Company, is in default in this matter.  Accordingly, Order Nos.
4003887, 4011787, 4011788, 4012381, 4012385, 4012392 and 4012394
are AFFIRMED.  D & E Coal Company, Inc., is ORDERED TO PAY a civil
penalty of $35,000.00 within 30 days of the date of this decision.
On receipt of payment, this proceeding is DISMISSED.


                                 T. Todd Hodgdon
                                 Administrative Law Judge


Distribution:

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN  37215
(Certified Mail)

Mr. B.W. Harris, D & E Coal Co. Inc., 189 Pond Fork Rd., Kimper, KY
41539 (Certified Mail)

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