**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

 

 
| SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH        

ADMINISTRATION  (MSHA)          

 

                        v.

 

MORTON  SALT, INC.                                        | :

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Docket  No. CENT 2022-0237

A.C.  No. 16-00970-558634

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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 September 2, 2022, the Commission receivedfrom Morton Salt, Inc., 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).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered on July 22, 2022, andbecame a final order of the Commission on August 22, 2022. Morton Salt explainsthat mail is transferred from the operator’s P.O. Box to the mine site onregularly scheduled days. The operator asserts it mistakenly believed the30-day deadline for contesting the proposed assessment was calculated fromreceipt at the mine site (July 26) rather than receipt at the P.O. Box (July22). Morton Salt believed it had timely contested the proposed assessment whenit mailed its notice of contest on August 23, one day after the assessmentbecame final. The operator adds that it will correct its process to ensurenotices of contest are sent within 30 days from receipt at the post office. TheSecretary does not oppose the request to reopen, but urges the operator to takesteps to ensure that future penalty contests are timely filed.

 

            Havingreviewed Morton Salt’s request and theSecretary’s response, and in light of the brief nature of the delay, theoperator’s prompt filing of a motion to reopen, and the operator’s stated intentto correct the issue, we find that the operator’s failure to timely contest theproposed assessment was the result of excusable mistake. In the interest of justice, we hereby reopen thismatter and remand it 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.[1]Accordingly, consistent with Rule 28, the Secretary shall file apetition for assessment of penalty within 45 days of the date of this order. *See*29 C.F.R. § 2700.28.

 

 

 

/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:

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

1331Pennsylvania Avenue, NW Suite 520N

Washington,DC 20004-1710

GVoisin@fmshrc.gov

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[1] Morton Salt’smotion to reopen specifies seven citations the operator wishes to contest. TheSecretary subsequently modified and issued a new proposed assessment for one ofthose citations. The proposed assessment was timely contested and assigned toan Administrative Law Judge (Docket No. CENT 2023-0009). Accordingly, MortonSalt’s motion is moot with respect to Citation No. 9649715.