1 

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 June 23, 2023,1 the Commission received from Morton 

Salt, Inc. (“Morton”), a motion seeking to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). 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”); JWR, 15 FMSHRC at 787. 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 permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

1

 On July 19, 2023, Morton filed an Amended Motion to Reopen correcting a referenced 

citation number from 9673919 to 9674919. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MORTON SALT, INC.

:

: 

: 

: 

: 

: 

:

Docket No. CENT 2023-0218 

A.C. No. 16-00970-574494 

January 8, 2024
2

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on April 11, 2023. On May 11, 

2023, MSHA received partial payment in the amount of $3,030.00 for 12 of the 16 citations 

listed on the proposed assessment. On May 17, 2023, the assessment became a final order of the 

Commission with respect to the penalties of the remaining four citations. On July 3, 2023, 

MSHA sent the operator a delinquency notice.

Morton states that on April 26, 2023, it checked the boxes on the proposed assessment to 

indicate that it was contesting Citation Nos. 9676699, 9674919, 9674924, and 9674925. The 

operator maintains that it had also sent a conference request on March 3, 2023, for Citation Nos. 

9674924 and 9674925 but received no response. Morton submits that although its EHS Manager

timely completed the contest form, he inadvertently failed to mail or email the form. It contends

that it will make the required change to its process to be sure that this error does not occur again. 

The operator requests that the Commission reopen the penalty assessment to permit Morton to 

contest the four citations.

The Secretary opposes the operator’s motion to reopen. The Secretary argues that 

Morton has failed to timely contest proposed assessments in the past, and that the repeated 

failures indicate that the operator has an unreliable system for processing assessments. The 

Secretary further disputes that MSHA failed to respond to its conference request. She also notes 

that the operator has reason to pay particular attention to its citations and penalties because the 

operator’s mine has been notified that it has a pattern of violations and two of the citations (Nos. 

9674924 and 9674925) were designated as significant and substantial in nature.2

Consistent with the Secretary’s submission, the Commission has previously reopened 

penalty assessments issued to Morton that became final due to the operator’s inadvertence or 

mistake in processing its proposed assessments. Morton Salt, Inc., 44 FMSHRC 533 (Aug. 

2022); Morton Salt, Inc., 45 FMSHRC ___, No. CENT 2022-0237 (May 16, 2023). The 

Commission has recognized that repeated motions to reopen may indicate an inadequate or 

unreliable internal processing system. Rockwell Mining, LLC, 45 FMSHRC ___, Nos. WEVA 

2022-0467, et al. (June 29, 2023). Although Morton has stated that it will take action to prevent 

such a reoccurrence in the future, it has not identified the steps it will take.

In addition, it appears that MSHA responded to the operator’s request for a conference 

and provided information about contest procedures. An attachment to the Secretary’s opposition 

reveals that on April 18, 2023, the operator sent MSHA an email acknowledging that it had 

received the proposed assessment on April 11, 2023, that it had 30 days to contest the citations 

on the assessment, and that the operator had requested a conference on Citation No. 9674919 on 

2 Section 104(e)(1) of the Mine Act provides that if an operator has a pattern of violations 

of mandatory health or safety standards which are of such nature as could significantly and 

substantially contribute to the cause and effect of health or safety hazards, it shall be given 

written notice that such a pattern exists. If, within 90 days following issuance of the POV notice, 

an inspector cites the operator for a significant and substantial violation, then MSHA may issue a 

withdrawal order under section 104(e) of the Act. 30 U.S.C. § 814(e)(1).
3

March 8, 2023, and on Citation Nos. 9674924, and 9674925 on March 16. MSHA responded by 

email dated April 25, 2023, that those citations had been assessed and were not eligible for a 

conference, and that if the operator wished to contest the citations, it would “need to select the 

citation on the assessment form and return the contested assessment form to the assessment 

office.” Attach. D. 

The Commission has made it clear that where a failure to contest a proposed assessment 

results from an inadequate or unreliable internal processing system, the operator has not 

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103. 104 (Feb. 2011); Double 

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle 

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008).

We find that Morton has not asserted good cause for its failure to timely contest the 

proposed penalties. See Marfork Coal Co., 45 FMSHRC ___, No. WEVA 2023-0043 (June 23, 

2023) (denying a motion to reopen when the operator neglected to fix problems with its internal 

procedures). The motion is DENIED WITH PREJUDICE. 

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

________________________________ 

Timothy J. Baker, Commissioner 
4

Distribution:

Donna Vetrano Pryor, Esq.

Husch Blackwell LLP

1801 Wewatta Street, Suite 100 

Denver, CO 80202

donna.pryor@huschblackwell.com

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

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov