**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

  MINE  SAFETY AND HEALTH     

  ADMINISTRATION  (MSHA)          

 

                        v.

 

DUININCK,  INC.                                        | :

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Docket  No. LAKE 2022-0058

A.C.  No. 21-03663-540443

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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”). 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.  

 

 

Accordingly, the request to reopen isDENIED.[1]

 

 

 

 

/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:

 

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

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