.
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)

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