Secretary of Labor v. Morton Salt, Inc.

Plain-English summary

Morton Salt's newly assigned health and safety specialist did not file a penalty contest because he was unfamiliar with the process. He believed no contest was required while the citations were being conferenced and one remained under investigation. The assessment therefore became a final Commission order. The Secretary did not oppose reopening. The Commission found that the missed deadline resulted from inadvertence, reopened the assessment, and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: A new safety specialist's documented misunderstanding that active conferences suspended the contest deadline established inadvertence in this case.

Full text (FMSHRC public release)

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 2022-0135

A.C.
No. 16-00970-549832

BEFORE:  Traynor,
Chair; Althen and Rajkovich, 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 April 27, 2022, Morton Salt, Inc., filed a motion
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).

The
Secretary of Labor states that the records of the Department of Labor’s Mine
Safety and Health Administration (“MSHA”) indicate that a proposed assessment
was sent to the operator on February 15, 2022, and was delivered on March 4,
2022, via U.S. Postal Service Mail. The Secretary asserts that the proposed
assessment became a final order of the Commission on April 3, 2022, 30 days
after its delivery.

Morton
Salt maintains that its failure to timely file was inadvertent. The operator’s
health and safety specialist was new to the position and attested that he was
not familiar with the penalty contest process. He explained that he believed
that a contest did not need to be filed because the citations were actively
being conferenced and one was the subject of an ongoing investigation. The
Secretary does not oppose the motion to reopen.

Having
reviewed Morton Salt’s request and the
Secretary’s response, we find that the operator’s failure to timely file
was the result of inadvertence. We hereby reopen
this matter, and remand the case 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. 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/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

John M. McCracken,
Esq.

Office of the
Solicitor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA  22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Ave. N.W., Suite 520N

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Donna Vetrano
Pryor, Esq.

Husch Blackwell
LLP

1801 Wewatta
Street, Suite 1000

Denver, CO  80202

[email protected]