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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act”). On July 22, 2022, the Commission received from Benton 

County Stone Co. Inc. (“Benton”) a motion seeking to reopen a penalty assessment proceeding 

and relieve it from the Default Order entered against it. 

On May 23, 2022, the Chief Administrative Law Judge issued an Order to Show Cause in 

response to Benton’s failure to answer the Secretary of Labor’s March 22, 2022 Petition for 

Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default 

Order on or about June 23, 2022, when it appeared that the operator had not filed an answer 

within 30 days.

Benton asserts that its failure to timely file occurred due to certain medical circumstances 

and the hospitalization of the Operator’s Safety Director and MSHA Consultant. According to email correspondence offered by the operator, MSHA had sent an email concerning the case to 

Benton’s Safety Director on June 8, 2022, however he was hospitalized for surgery and on 

medical leave prior to this date. MSHA informed the operator on July 19, 2022 that the Order to 

Show Cause was deemed a Default Order, and the operator filed its motion to reopen on the 

same day. The Secretary does not oppose the request to reopen, but cautions that she may 

oppose future requests to reopen penalty assessments that are not contested in a timely manner. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not 

direct review within 40 days of a decision’s issuance, it becomes a final decision of the 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA) 

v.

BENTON COUNTY STONE CO. INC.

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Docket No. CENT 2022-0104

A.C. No. 03-01730-549529

June 27, 2023
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Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final 

decision of the Commission.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party 

from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or 

other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall 

be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy 

and that, if the defaulting party can make a showing of good cause for a failure to timely 

respond, the case may be reopened and appropriate proceedings on the merits will be permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Benton’s request and the Secretary’s response, we find that the operator 

acted with excusable neglect due to the medical circumstances and hospitalization surrounding 

the operator’s safety director and MSHA consultant. In the interest of justice, we hereby reopen 

the proceeding and vacate the Default Order. Accordingly, this case is remanded to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700.

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 
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Distribution:

Blake Tice

Benton County Stone Co, Inc.

P.O. Box 968

Pryor, OK 74362

safety@kempquarries.net

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Melanie Garris 

USDOL/MSHA, OAASEI/CPCO 

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission 

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov