<DOC>
[DOCID: f:l94-600.wais]
BUCK CREEK COAL, INC.
December 13, 1996
LAKE 94-600
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
December 13, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-600
Petitioner : A.C. No. 12-02033-03626
v. :
: Buck Creek Mine
BUCK CREEK COAL, INC., :
Respondent :
:
BUCK CREEK COAL, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 94-370-R
: Citation No.4262274; 5/18/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 94-372-R
ADMINISTRATION (MSHA), : Citation No. 4262276; 5/18/94
Respondent :
: Docket No. LAKE 94-376-R
: Citation No. 4262301; 5/19/94
:
: Docket No. LAKE 94-408-R
: Citation No. 4262369; 5/17/94
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-601
Petitioner : A.C. No. 12-02033-03627
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., and 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 33 violations of
the Secretary's mandatory health and safety standards and seek
penalties of $4,628.00. For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $4,628.00.
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, Citation Nos.
4262355, 4259862, 4262042, 4262044, 4262045, 4262359, 4259863,
4259864, 4262050, 4259223, 4259224, 4262256, 4262257, 4386043,
4386044, 4386045, 4262051, 4262052, 4262258 and 4262259 in Docket
No. LAKE 94-600; and Citation Nos. 4262267, 4262268, 4262270,
4262271, 4262272, 4262273, 4259873, 4259874, 4262053, 4262369,
4262274, 4262276 and 4262301 in Docket Nos. LAKE 94-370-R, LAKE
94-372-R, LAKE 94-376-R and LAKE 94-408-R and LAKE 94-601 are
AFFIRMED. Buck Creek Coal Inc., or its successor,[2] is ORDERED
TO PAY civil penalties of $4,628.00 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)
/lt
**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.