1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

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”). The record reveals that the proposed assessment was 

delivered to the Operator on August 30, 2021. On September 22, 2021, the Mine Safety and 

Health Administration (“MSHA”) received full payment of $1,359.00 for all three citations by a 

check dated September 9, 2021. A “To Whom It May Concern” letter from the operator 

accompanied the check. The signatory to the letter stated that he was an experienced and 

knowledgeable safety professional. The letter expressly disclaims any intention to contest the 

citation and demonstrates the payment of the penalty was a conscious payment by a 

knowledgeable operator. 

 Subsequently, the operator filed a letter requesting reopening. Even there, however, the 

operator disclaims any desire to contest the citation. Instead, it asked for an opportunity to 

discuss its safety practices with MSHA. 

 30 C.F.R. § 100.6(a) provides MSHA with sole discretion to grant a request for a 

conference where issues may be discussed. The Commission grants reopening in accordance 

with the factors set forth in Rule 60(b) of the Federal Rules of Civil Procedure. See 29 C.F.R. 

2700.1(b); Fed. R. Civ. P. 60(b). The operator does not allege a mistake, inadvertent conduct, 

excusable neglect, or other reason justifying relief that led to its payment and the proposed 

penalty assessment becoming a final order. The motion reflects that the operator made the 

deliberate choice to pay the penalties after receiving the penalty assessment rather than to contest 

the penalties before a Commission Administrative Law Judge. 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

DUININCK, INC.

:

: 

: 

: 

: 

: 

:

Docket No. LAKE 2022-0058 

A.C. No. 21-03663-540443 

May 18, 2023
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Accordingly, the request to reopen is DENIED.1

_________________________________

Mary Lu Jordan, Chair

_________________________________ 

William I. Althen, Commissioner 

_________________________________ 

Marco M. Rajkovich, Jr., Commissioner

_________________________________ 

Timothy J. Baker, Commissioner 

1 We further note that the Commission cannot order MSHA to have a conference with an 

operator.
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Distribution:

Terry P. Keenan

Safety Manager 

Duininck Inc.

408 6th Street

Prinsburg, MN 56281

Terry.Keenan@duininck.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