**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

** **

 

 

 

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

**ORDER**

 

BY THE COMMISSION:

 

            Thismatter 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 toreopen a penalty assessment that had become a final order of the Commissionpursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

 

            Undersection 105(a) of the Mine Act, an operator who wishes to contest a proposedpenalty must notify the Secretary of Labor no later than 30 days afterreceiving the proposed penalty assessment. If the operator fails to notify theSecretary, the proposed penalty assessment is deemed a final order of theCommission. 30 U.S.C. § 815(a).

 

            Wehave held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontestedassessments that have become final Commission orders under section 105(a). *JimWalter Res., Inc.,* 15 FMSHRC 782, 786-89 (May 1993) (“*JWR*”). Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure, under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See* 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe 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 andthat, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may bereopened and appropriate proceedings on the merits permitted. *See Coal Prep.Servs., Inc.,* 17 FMSHRC 1529, 1530 (Sept. 1995).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered on April 11, 2023. On May11, 2023, MSHA received partial payment in the amount of $3,030.00 for 12 ofthe 16 citations listed on the proposed assessment. On May 17, 2023, theassessment became a final order of the Commission with respect to the penaltiesof the remaining four citations. On July 3, 2023, MSHA sent the operator adelinquency notice. 

 

Morton states that on April 26, 2023, itchecked the boxes on the proposed assessment to indicate that it was contestingCitation Nos. 9676699, 9674919, 9674924, and 9674925. The operator maintainsthat 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 itsEHS Manager timely completed the contest form, he inadvertently failed to mailor email the form. It contends that it will make the required change to itsprocess to be sure that this error does not occur again. The operator requeststhat the Commission reopen the penalty assessment to permit Morton to contestthe four citations.

 

            TheSecretary opposes the operator’s motion to reopen. The Secretary argues thatMorton has failed to timely contest proposed assessments in the past, and thatthe repeated failures indicate that the operator has an unreliable system forprocessing assessments. The Secretary further disputes that MSHA failed torespond to its conference request. She also notes that the operator has reasonto pay particular attention to its citations and penalties because theoperator’s mine has been notified that it has a pattern of violations and twoof the citations (Nos. 9674924 and 9674925) were designated as significant andsubstantial in nature.[2]

 

Consistent with the Secretary’s submission,the Commission has previously reopened penalty assessments issued to Mortonthat became final due to the operator’s inadvertence or mistake in processing itsproposed assessments. *Morton Salt, Inc.*, 44 FMSHRC 533 (Aug. 2022); *MortonSalt, Inc.*, 45 FMSHRC ___, No. CENT 2022-0237 (May 16, 2023). TheCommission has recognized that repeated motions to reopen may indicate aninadequate 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 preventsuch a reoccurrence in the future, it has not identified the steps it will take.

 

In addition, it appears that MSHAresponded to the operator’s request for a conference and provided informationabout contest procedures. An attachment to the Secretary’s opposition revealsthat on April 18, 2023, the operator sent MSHA an email acknowledging that ithad received the proposed assessment on April 11, 2023, that it had 30 days tocontest the citations on the assessment, and that the operator had requested aconference on Citation No. 9674919 on 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 toselect the citation on the assessment form and return the contested assessmentform to the assessment office.” Attach. D.     

 

            TheCommission has made it clear that where a failure to contest a proposedassessment results from an inadequate or unreliable internal processing system,the operator has not established grounds for reopening the assessment. *ShelterCreek Capital, LLC*, 34 FMSHRC 3053, 3054 (Dec. 2012); *Oak Grove Res.*,LLC, 33 FMSHRC 103. 104 (Feb. 2011); *Double Bonus Coal Co*., 32 FMSHRC1155, 1156 (Sept. 2010); *Highland Mining Co*., 31 FMSHRC 1313, 1315 (Nov.2009); *Pinnacle Mining Co*., 30 FMSHRC 1066, 1067 (Dec. 2008); *PinnacleMining Co.*, 30 FMSHRC 1061, 1062 (Dec. 2008).

 

We find that Morton has not asserted goodcause for its failure to timely contest the proposed penalties. *See MarforkCoal Co.*, 45 FMSHRC ___, No. WEVA 2023-0043 (June 23, 2023) (denying amotion to reopen when the operator neglected to fix problems with its internalprocedures). The motion is DENIED WITH PREJUDICE.   

 

 

 

 

/s/ Mary Lu Jordan

MaryLu 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:

DonnaVetrano Pryor, Esq.

HuschBlackwell LLP

1801Wewatta Street, Suite 100 

Denver,CO 80202

donna.pryor@huschblackwell.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission

Officeof the Chief Administrative Law Judge 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov

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[1] On July 19, 2023,Morton filed an Amended Motion to Reopen correcting a referenced citationnumber from 9673919 to 9674919. 

[2]Section 104(e)(1) ofthe Mine Act provides that if an operator has a pattern of violations ofmandatory health or safety standards which are of such nature as couldsignificantly and substantially contribute to the cause and effect of health orsafety 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 theoperator for a significant and substantial violation, then MSHA may issue awithdrawal order under section 104(e) of the Act. 30 U.S.C. § 814(e)(1).