**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| 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

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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 e-mail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 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.

 

 

 

/s/Mary Lu Jordan

Mary Lu Jordan,Chair

 

 

 

/s/ William I. Althen

William I. Althen, Commissioner 

 

 

 

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

 

 

 

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner 

 

 

 

 

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