WASHINGTON, DC 20004-1710




















Docket No. CENT 2022-0237

A.C. No. 16-00970-558634




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





            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




Donna Vetrano Pryor, Esq.

Husch Blackwell LLP

1801 Wewatta Street, Suite 100

Denver, CO 80202



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



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



Melanie Garris


201 12th Street South, Suite 401

Arlington, VA 22202



Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710


[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.