Secretary of Labor v. Morton Salt, Inc.

Plain-English summary

Morton Salt sought to reopen five orders after a new environmental, health, and safety manager failed to contest the associated penalties. The company had timely contested four underlying orders, but it did not identify concrete corrective steps for the penalty-processing failure. The Commission noted that Morton had received reopening relief twice before and later had another motion denied because repeated errors suggested an unreliable system. Morton also waited almost four months after MSHA's delinquency notice and two months after Treasury referral before filing. The Commission denied reopening with prejudice.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(e)(1) and 815(a)
• Outcome: The motion to reopen five orders was denied with prejudice.
• Key point: Repeated missed contests, ineffective corrective measures, and a long delay after collection notices defeated reopening.

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 2023-0248

A.C.
No. 16-00970-569815

BEFORE:
Jordan, Chair; Althen, Rajkovich, Baker, and Marvit, 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 August 8, 2023, 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).

        Records

of the Department of Labor’s Mine Safety and Health Administration (“MSHA”)
indicate that the proposed assessment was delivered on January 27, 2023. On February
27, 2023, the assessment became a final order of the Commission. On April 13,
2023, MSHA sent the operator a delinquency notice, and on June 15, 2023, the
operator’s delinquency was referred to the Department of Treasury.

Morton states that it seeks to reopen
Order Nos. 9648951, 9674876, 9674877, 9674883, and 9674887, and that it had
filed timely notices of contest with respect to the latter four of these five
orders. The four notices of contest filed by Morton Salt were docketed in Nos.
CENT 2023-0072 through CENT 2023-0075. On July 31, 2023, the parties were asked
to provide a status update on the contest dockets. On August 3, 2023, the
Secretary responded that MSHA had not received a contest of the penalties
associated with the orders, and the operator responded that the penalties had
not been contested in error. [1]

Morton Salt submits that the EHS Manager,
who was new in his role, failed to timely send the contest of the penalties to
MSHA due to an oversight and as the result of an inadvertent mistake. It
submits that it will make the required changes to its process so that the error
does not happen again.

        The

Secretary opposes the operator’s motion to reopen. She submits that the operator has failed to justify reopening
because the reasons for its failure to timely file were too vague, and Morton
Salt failed to state how it corrected its internal processes so that the error would
not be repeated. The Secretary further notes that Morton Salt has filed another
request to reopen in which it states that it had corrected its internal
processes, and that the deficiency in those processes appears not to have been
corrected. She notes that the operator has reason to pay particularly careful
attention to its citations, orders, and penalties because it has received a
pattern of violations notice, and four of the subject orders had been issued
pursuant to section 104(e)(1) of the Mine Act. [2] In addition, the Secretary submits that
the operator has not explained its delay in filing its motion to reopen. Finally,
the Secretary states that it appears that Morton Salt acted on its delinquent
penalties, not because it discovered them through its own diligence, but
because a Commission Judge asked for a status update in the related contest
proceedings.

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 286 (May 2023). More
recently, however, recognizing that repeated motions to reopen may indicate an
inadequate or unreliable internal processing system, the Commission denied a
motion to reopen filed by Morton Salt. Morton Salt, Inc. , 46 FMSHRC 15 (Jan.
2024). Although Morton has stated that it will take action to prevent untimely
filing in the future, it
has not identified the steps it will take, and it appears that any steps taken
have been ineffective. 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).

In addition, Morton Salt failed to file
the motion to reopen within a reasonable time. The
Commission has previously held that “[m]otions to reopen received within 30
days of an operator’s receipt of its first notice from MSHA that it has failed
to timely file a notice of contest will be presumptively considered as having
been filed within a reasonable amount of time.” Highland Mining Co., 31
FMSHRC 1313, 1316-17 (Nov. 2009). The operator’s August 8 motion to reopen was
filed almost four months after MSHA sent the operator a
delinquency notice, and two months after the penalties were referred to the
Department of Treasury .

We find that
Morton has not asserted good cause for its failure to timely contest the
proposed penalties. See Marfork Coal Co. , 45 FMSHRC 463 (June 2023) (denying
a motion to reopen when the operator neglected to fix problems with its
internal procedures). The motion is DENIED WITH PREJUDICE.

/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

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Donna
Vetrano Pryor, Esq.

Husch
Blackwell LLP

1801
Wewatta Street, Suite 1000

Denver,
CO 80202

[email protected]

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

[email protected]

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

[email protected]

Melanie
Garris

USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

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

[email protected]

[1] On August 31,
2023, a Commission Administrative Law Judge dismissed those contests. The
Judge’s dismissal is currently pending for review before the Commission.

[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).