[DOCID: f:l95310.wais] BUCK CREEK COAL, INC. November 25, 1996 LAKE 95-310 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 November 25, 1996 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA), : Docket No. LAKE 95-310 Petitioner : A. C. No. 12-02033-03672 v. : : Docket No. LAKE 95-321 BUCK CREEK COAL, INC., : A. C. No. 12-02033-03674 Respondent : : Docket No. LAKE 95-326 : A. C. No. 12-02033-03675 : : Docket NO. LAKE 95-335 : A. C. No. 12-02033-03677 : : Docket No. LAKE 95-340 : A. C. No. 12-02033-03679 : : Docket No. LAKE 95-358 : A. C. No. 12-02033-03680 : : Docket No. LAKE 96-9 : A. C. No. 12-02033-03689 : : Docket No. LAKE 96-18 : A. C. No. 12-02033-03692 : : Docket No. LAKE 96-27 : A. C. No. 12-02033-03694 : : Docket No. LAKE 96-32 : A. C. No. 12-02033-03695 : : Docket No. LAKE 96-43 : A. C. No. 12-02033-03696 : : Docket No. LAKE 96-44 : A. C. No. 12-02033-03697 : : Docket No. LAKE 96-51 : A. C. No. 12-02033-03699 : : Docket No. LAKE 96-62 : A. C. No. 12-02033-03700 : : Docket No. LAKE 96-73 : A. C. No. 12-02033-03702 : : Docket No. LAKE 96-74 : A. C. No. 12-02033-03703 : : Docket No. LAKE 96-76 : A. C. No. 12-02033-03701 : : Docket No. LAKE 96-99 : A. C. No. 12-02033-03704 : : Buck Creek Mine 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 Buck Creek Coal, Inc. pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. The petitions allege 188 violations of the Secretary's mandatory health and safety standards and seek penalties of $44,367. For the reasons set forth below, I find the company in default, affirm the orders and citations, and assess penalties of $44,367. On May 10, 1996, counsel for the Secretary served Interrogatories and a Request for Production of Documents on the respondent. On June 28, 1996, counsel filed a Motion to Compel stating that Buck Creek had received the discovery requests on May 13, 1996, 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 September 19, 1996. Buck Creek was ordered to respond to the Secretary's discovery requests within 15 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 September 23 or 24, 1996. On October 18, 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 requirement 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, all citations/ orders contained in the captioned dockets are AFFIRMED. Buck Creek Coal, Inc., or its successor, is ORDERED TO PAY civil penalties of $44,367 within 30 days of the date of this decision. Upon receipt of payment, these proceedings are DISMISSED. Roy J. Maurer Administrative Law Judge Distribution: Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) Chuck Shultise, President, Buck Creek Coal Company, Inc., RR 5, Box 203, Sullivan, IN 47882 (Certified Mail) Randall Hammond, Superintendent, Buck Creek Coal Company, Inc., 2156 South County Road, 50 West Street, Sullivan, IN 47882 Terry G. Farmer, Esq., 708 Hulman Building, P. O. Box 657, Evansville, IN 47704 (Certified Mail) dcp