1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19th ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

February 14, 2023 

ORDER GRANTING IN PART SECRETARY OF LABOR’S 

MOTION TO DISMISS CONTEST TO POV NOTICE

ORDER OF DISMISSAL

MORTON SALT, INC.,

 Contestant, 

 v. 

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

 Respondent. 

CONTEST PROCEEDINGS

Docket No. CENT 2023-0069 

POV Notice 9679401; 12/01/2022 

Docket No. CENT 2023-0070 

Order No. 9673196; 12/12/2022 

Docket No. CENT 2023-0071 

Order No. 9674873; 12/07/2022 

Docket No. CENT 2023-0072 

Order No. 9674876; 12/12/2022 

Docket No. CENT 2023-0073 

Order No. 9674877; 12/12/2022 

Docket No. CENT 2023-0074 

Order No. 9674883; 12/14/2022 

Docket No. CENT 2023-0075 

Order No. 9674887; 12/14/2022 

Docket No. CENT 2023-0076 

Order No. 9674888; 12/20/2022 

Docket No. CENT 2023-0077 

Order No. 9674891; 12/20/2022 

Docket No. CENT 2023-0078 

Order No. 9674895; 12/28/2022 

Mine: Weeks Island Mine and Mill 

Mine ID: 16-00970
Before: Judge Simonton

These cases are before me upon notices of contest filed by Morton Salt Inc. (“Morton”) 

under Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 

U.S.C. § 801 et seq. Docket No. CENT 2023-0069 was assigned by the Commission’s docket 

office to a contest of a Pattern of Violations (POV) Notice, which was issued by MSHA on 

December 1, 2022.

1 Notably, however, Morton did not contest the POV Notice itself. Instead, it 

contested nine Section 104(e) withdrawal orders issued following the POV Notice and simply

referenced the POV Notice, No. 9679401, in each of those notices of contest.

2

 See, e.g., Notice 

of Contest, CENT 2023-0070. Accordingly, it appears that Docket No. CENT 2023-0069 may 

have been created in error.

On January 24, 2023, the Secretary moved to dismiss CENT 2023-0069 and to strike any 

reference to Morton’s contest of the POV Notice in each 104(e) Notice of Contest filed in 

Docket Nos. CENT 2023-0070, CENT 2023-0071, CENT 2023-0072, CENT 2023-0073, CENT 

2023-0074, CENT 2023-0075, CENT 2023-0076, CENT 2023-0077, and CENT 2023-0078. 

The Secretary argues that the Federal Mine Safety and Health Review Commission lacks 

jurisdiction over a contest to a POV Notice pursuant to the Commission’s holding in Pocahontas 

Coal Co., LLC, 38 FMSHRC 176 (Feb. 2016). Sec’y of Labor’s Mot. to Dismiss Contest to 

POV Notice at 2. According to the Secretary, Morton cannot establish the Commission’s 

jurisdiction over its contest of the POV Notice. Id. at 4.

Morton filed a Statement in Opposition to the Secretary’s Motion to Dismiss on February 

3, 2023. In its statement, Morton confirms that it “did not file a Notice of Contest to the POV 

Notice; it did not directly challenge or contest the POV notice.” Contestant’s Statement in 

Opp’n to Sec’y of Labor’s Mot. to Dismiss Contest to POV Notice at 2. Morton argues that the 

POV notice, since it is joined by the nine Section 104(e) withdrawal orders MSHA issued after 

the POV Notice, does not stand alone. Id. Morton asserts that because it is indirectly 

challenging the POV Notice by contesting the withdrawal orders, the court does not need to 

dismiss Docket No. CENT 2023-0069 but should instead consolidate it with the contests of the

nine Section 104(e) withdrawal orders and issue an order confirming that Morton seeks review of 

the POV Notice during the contest of those orders. Id. at 3-5.

1 If an operator has a patten a pattern of violations of mandatory health or safety standards that 

could significantly and substantially contribute to the cause and effect of coal or other mine 

health or safety standards, Section 104(e)(1) of the Mine Act directs MSHA to issue a notice of 

such pattern to the operator. 30 U.S.C. § 814(e)(1). If any inspection within 90 days following 

the notice reveals a significant and substantial violation of a mandatory health or safety standard, 

MSHA must issue a withdrawal order. Id. Section 104(e) also provides for MSHA’s issuance of 

additional withdrawal orders for subsequent significant and substantial violations discovered 

until an inspection of the entire mine reveals no significant and substantial violations of 

mandatory health or safety standards. Id. § 814(e)(2)-(3). 2 The contest cases, Docket Nos. CENT 2023-0070 through CENT 2023-0078, were assigned to 

me alongside Docket No. CENT 2023-0069. 
3 

In Pocahontas Coal Co., LLC, the Commission held that “the language of section 105(d) 

does not give the Commission authority to review a direct challenge to a POV notice.” 38 

FMSHRC 176 at 182. However, an operator may obtain Commission review of a POV notice 

during a contest of a related withdrawal order issued under Section 104(e). Id. at 184. 

Accordingly, Morton will be able to challenge the validity of the POV Notice during the contest 

proceedings for the nine dockets challenging the Section 104(e) withdrawal orders. I thus see no

legitimate reason to grant the portion of the Secretary’s motion that requests the court strike any 

reference to Morton’s contest of the POV Notice in the Notices of Contest in Docket Nos. CENT 

2023-0070 through CENT 2023-0078. I do find, however, that dismissal of Docket No. CENT 

2023-0069 is appropriate. Both parties recognize that the Commission does not have jurisdiction 

to review a POV notice standing alone, and, procedurally, it stands alone in Docket No. CENT 

2023-0069. It is properly challenged indirectly in Docket Nos. CENT 2023-0070 through CENT 

2023-0078 and I will hear arguments about its validity in those proceedings. 

Accordingly, the Secretary’s Motion to Dismiss Contest to POV Notice is hereby 

GRANTED IN PART. It is ORDERED that Docket No. CENT 2023-0069 is DISMISSED. 

David P. Simonton 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail)

Brian Hendrix, Husch Blackwell LLP, 1801 Pennsylvania Avenue, NW, Suite 1000, 

Washington, D.C. 20006, brian.hendrix@huschblackwell.com

Donna Pryor, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202, 

Donna.pryor@huschblackwell.com 

Mia F. Terrell, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 

501, Dallas, TX 75202, terrell.mia@dol.gov 

 

Tyler Nash, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 501, 

Dallas, TX 75202, nash.william.t@dol.gov

Josh Bernstein, U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 

501, Dallas, TX 75202, bernstein.josh@dol.gov