**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

**721 19th St., Suite 443**

**Denver, CO 80202-2500**

**Office: (303)844-5266/Fax: (303) 844-5268**

 

 

SECRETARYOF LABOR,                                 :     CIVIL PENALTY PROCEEDING

 MINESAFETY AND HEALTH                        :

 ADMINISTRATION(MSHA),                          :     Docket No. WEST 2022-0249

                                    Petitioner,                          :     A.C.No. 42-02078-554812

                                                                              :

                                                                              :

                        v.                                                   :

                                                                              :

                                                                              :

RULONHARPER CONSTRUCTION, INC,     :

                                    Respondent.                      :     Mine:Pit 12

** **

**ORDER DENYING SETTLEMENT**

****

This case is before meupon a petition for assessment of a civil penalty under Section 105(d) of theFederal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. The partieshave notified the Court that they have reached a settlement agreement in thiscase. Based on the proposed modifications and significant penalty reduction, Ideny the settlement motion. The terms of the proposed settlement are asfollows: 

 
| **Citation/  Order No.**     | **Originally Proposed Assessment** | **Settlement Amount** | **Modification**                                                                                                                                                                                                                                                                                                                                                             |
|-------------------------------|------------------------------------|-----------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **Docket No. WEST 2022-0249** |
| 9727214                       | $  10,868.00                      | $  662.00             | -     Modify Type of Action from  104(d)(1) citation to 104(a) citation;

-     Modify gravity from “Reasonably  Likely” to “Unlikely”;

-     Modify negligence from “High” to  “Moderate”; and 

-     Modify Significant and  Substantial from “Yes” to “No.”                         |
| 9727216                       | $  12,076.00                      | $  3,274.00          | -     Modify Type of Action from  104(d)(1) order to 104(a) citation; and

-     Modify negligence from “High” to  “Moderate.”                                                                                                                                                                                                     |
| **TOTAL**                     | **$  22,944.00**                  | **$  3,936.00**      | ** **                                                                                                                                                                                                                                                                                                                                                                   |

 

 

Section 110(k) of theMine Act provides that “[n]o proposed penalty which has been contested beforethe Commission under section 105(a) shall be compromised, mitigated, or settledexcept with the approval of the Commission.” 30 U.S.C. § 820(k). This provisionof the Act was designed to shed light and scrutiny upon the dealmaking thattakes place between mine operators and government regulators, and to ensurethat settlements further the public interest and the purposes of the Mine Act. *SeeBlack Beauty Coal Co.*, 34 FMSHRC 1856, 1860-64 (Aug. 2012). 

 

Commission judgesreview settlements to determine whether they are “fair, reasonable, appropriateunder the facts, and protects the public interest.” *Am. Coal Co.*, 38FMSHRC 1972, 1976 (Aug. 2016). To enable judges to make this determination,Commission rules require that a motion to approve a penalty settlement mustinclude “facts in support of the penalty agreed to by the parties.” 30 C.F.R. § 2700.31(b). Ajudge reviews the submitted facts, the six penalty criteria set forth insection 110(i) of the Act, and all other relevant considerations whenscrutinizing a settlement. *See**Am. Coal Co.*, 38 FMSHRC at 1976,1982.

 

**I.                  ****TheAssessed Penalty, Proposed Settlement, and Amendments**

 

The Respondent owns andoperates a sand-and-gravel operation at Pit 12 near Salt Lake City, Utah. Thisdocket includes two citations issued to the Respondent on March 29, 2022. TheRespondent contested the citations, and the Secretary filed a petitionproposing a penalty of $22,944.00 on July 20, 2022. *See* Pet. for Assess.of Civil Pen. (hereinafter “Pet.”).

 

On September 23, 2022,the Secretary filed his original Motion to Approve Settlement for this docket. Inthat filing, the Secretary proposed a compromised penalty of $3,936.00,representing a **savings for the mine operator of $19,008.00** and a **penaltyreduction of 82.8 percent**. The motion also proposed numeroussubstantive modifications to the text of the citations. But the facts offeredin support of the proposed modifications were lacking. 

 

Accordingly, the Courtnotified the parties that their settlement could not be approved as submittedand gave the parties additional time to renegotiate the settlement or providemore supporting information. The Secretary filed an Amended Motion to ApproveSettlement on October 3, 2022.  The amended motion contains little, if any,additional information supporting the settlement. 

 

**II.               ****TheProposed Settlement is not Fair, Reasonable, Appropriate Under the Facts, orProtective of the Public Interest**

 

The Court now turns tothe terms of the agreement. The terms are analyzed based on the facts submittedin the settlement motion as amended by the parties. Consideration is given tothe monetary and nonmonetary terms of the settlement, and to the criteriaestablished in section 110(i) of the Mine Act, such as negligence and gravity. Onbalance, I find that the modified penalty proposed by the Secretary is notfair, reasonable, appropriate under the facts, or protective of the publicinterest. I find also that the settlement motion does not adequately addressthe six penalty criteria. I therefore deny the Secretary’s motion. 

 

 

**A.   ****TheProposed Modifications to Citation No. 9727214**

 

Citation No. 9727214 alleges aviolation of 30 C.F.R. § 56.14207 as follows: 

 

TheDodge Ram 1500 truck was parked on a roughly 5% grade without being providedwith wheel chocks or any other required means to prevent uncontrolled,unintended movement. Miners walked up the grade directly behind the vehicle.Should a miner be struck by the truck, fatal blunt force trauma would be theexpected result. Management engaged in conduct constituting more than ordinarynegligence in that the mine operator was aware of the truck and took no actionto correct or mitigate the hazard. Standard 56.14207 was cited 2 times in twoyears at mine 4202078 (2 to the operator, 0 to a contractor). . . . Thisviolation is an unwarrantable failure to comply with a mandatory standard.

 

Pet. at 6. The cited standardrequires that, “[w]hen parked on a grade, the wheels or tracks of mobileequipment shall be either chocked or turned into a bank.” 30 C.F.R. § 56.14207.The inspector found that the alleged violation was reasonably likely to resultin an injury, and that the injury could be reasonably expected to be fatal. Pet.at 6. He marked the citation as high negligence and S&S. Pet. at 6. Afterdetermining that the violation was an unwarrantable failure to comply with amandatory standard, the inspector issued the citation under section 104(d)(1)of the Mine Act. The Secretary assessed a penalty of $10,868.00. 

 

Now, the Secretaryseeks to radically alter this citation. First, he proposes reclassification ofthis action from a section 104(d)(1) citation to a 104(a) citation. Thatproposed change requires deletion of the unwarrantable failure designation. *See*30 U.S.C. § 814(d)(1). Second, he seeks to change the likelihood of injury from“Reasonably Likely” to “Unlikely.” Third, he proposes a reduction in thenegligence finding from “High” to “Moderate.” And finally, he seeks to removethe S&S designation. Altogether, these changes would reduce the penaltyfrom $10,868.00 to $662.00.

 

The Secretary offersvery few facts in support of these major changes. He states in his motion thatthe pickup truck in question was “outfitted with an automatic transmissionwhich was observed in the ‘park’ position” and that the “parking brake wasset.” Am. Mot. to App. Settlement at 3. He also notes that his “review of theinformation provided by the operator supports that there was no one in minemanagement aware of any hazards on the pickup truck.”[1] Am. Mot. to App. Settlement at3. 

 

The violation allegedhere is serious, despite the Secretary’s attempts to downplay it.  Just onemonth before the Secretary filed his original motion in this case, a miner waskilled by parked mobile equipment that had not been secured against accidentalmovement.[2]Another miner was killed earlier this year when a dump truck—unsecured againstaccidental motion—crushed a miner attempting to troubleshoot a brake issue.[3] Last year, at least three suchfatal accidents occurred. One miner was pinned by his parked truck while helpinga second miner repair a truck parked immediately in front of his own.[4] Another miner died when his haultruck, parked on a grade without wheel chocks, rolled downhill and crushed him.[5] A third miner with ten years ofexperience died while performing a pre-operational examination on a truck with unchockedwheels.[6]MSHA’s root-cause analysis found that the death was caused by the contractor’sfailure to ensure that all truck wheels were properly blocked when parked on agrade. In 2020, a truck ran over a miner who had attempted to adjust its brakeswithout blocking it against motion.[7]In 2018, a miner with eight years of experience was killed by mobile equipmentthat was not properly secured against movement while parked.[8] In 2017, a parked pickup truck pinneda miner against a wall and killed him, in part because the wheels were notchocked.[9]

 

Miners are killed yearafter year in these accidents—accidents that are completely avoidable ifoperators were to follow the regulations with diligence and care. That is whythe inspector’s original finding of S&S is well founded: the violationalleged here is serious, and mine operators need to take them seriously or elseminers will continue to die. 

 

The Secretary now seeksto remove the S&S designation. I cannot accept this proposed modificationbased on the two sentences that he offers in support of the change. TheSecretary points to other required safety features, like the parking brake, toshow that the alleged violation is not significant or substantial. However, Iam precluded from considering redundant safety measures as part of S&Sanalysis. *See Cumberland Coal Res., LP v. FMSHRC*, 717 F.3d 1020, 1028-29(D.C. Cir. 2013). The relevant inquiry here is the magnitude of risk presentedby the operator’s failure to chock the wheels of a truck parked on a grade. Giventhe number of serious accidents caused by this condition, I find that theinspector has set forth no basis for S&S and that the Secretary’s facts cannotsupport deletion of the S&S designation. Accepting the facts, even if true,stand in opposition to the current case law regarding S&S. I cannot accepta settlement that is contrary to law.

 

As additional support for theS&S changes, the Secretary insists that he has “discretion to modify thesignificant and substantial designation” based on two Commission cases: *American Aggregates of Michigan, Inc*., 42 FMSHRC570, 576-79 (Aug. 2020), and *Mechanicsville Concrete, Inc*., 18 FMSHRC877, 879-80 (June 1996). Am. Mot. to App. Settlement at 4. But the Secretary’s reliance on these cases is misplaced. TheCommission in *Mechanicsville* held that an ALJ may not add anS&S designation on her own initiative, and the Commissioners merelyreiterated this holding in *American Aggregates*. By contrast, the presentcase involves the Secretary’s proposal to remove an S&S designation.The case citations of the CLR are irrelevant here. It appears they weredrafted by an attorney and are used in every settlement agreement by a CLR whois not qualified to cite to legal authority. I find that the Secretary’s claimof discretion regarding S&S is erroneous, and that his decision to removethe S&S designation wrongfully dispenses with decades of history andprecedent. 

 

I further find that thesubmitted facts cannot support the negligence changes. The Secretary atteststhat a “review of the information provided by the operator supports that therewas no one in mine management aware of any hazards on the pickup truck.” Am.Mot. to App. Settlement at 3. This statement raises several concerns. It does not specify the basis of the “information providedby the operator” or whether it is credible. *Id*. It does not mesh withthe inspector’s account, which noted that management “was aware” of theviolative condition. Pet. at 6. And it does not even say explicitly thatmanagement lacked knowledge of the unchocked wheels—only that management wasunaware of any conditions that it deemed a “hazard.” Am. Mot. to App.Settlement at 3. 

 

Moreover, even ifmanagement lacked actual knowledge of the unchocked wheels, this fact wouldstill not negate negligence. The Secretary defines negligence as when “[t]heoperator knew *or should have known* of the violative condition.” 30C.F.R. § 100.3 (emphasis added). The Commission looks to “the operator’s actual*or constructive knowledge* of the violative condition or practice” todetermine its negligence.  *Knight Hawk Coal, LLC*, 38 FMSHRC 2361, 2369(Sept. 2016) (emphasis added). The record indicates that management should haveknown of the condition since miners routinely “walked up the grade directlybehind the vehicle.” Pet. at 6. The Commission also looks to the operator’s“supervision, training, and disciplining of its employees to determine if [it]has taken reasonable steps necessary to prevent the rank-and-file miner’sviolative conduct.” *Knight Hawk*, 38 FMSHRC at 2369. Here, the Secretaryhas submitted no facts regarding the operator’s supervision or trainingpractices. Accordingly, the facts do not mitigate the operator’s negligence asalleged in the petition. 

 

Finally, and mostimportantly, I must deny the proposed penalty reduction associated with thiscitation. The threadbare information submitted cannot support such adrastically compromised penalty. For further discussion of the penalty, see *infra*,Section II.C. 

 

**B.    ****TheProposed Modifications to Order No. 9727216**

 

Order No. 9727216 alleges aviolation of 30 C.F.R. § 56.18002(a) as follows: 

 

The mine operator failed to ensurethat an adequate examination of working places was being conducted prior tominers working around the crusher and wash plant areas. During this inspection20 violative conditions were noted and cited. The workplace examination recordnoted 0 safety concerns. Some of the conditions cited were extensive andobvious and had been in existence for days or weeks. The failure to identifyand correct hazards is known to contribute to fatal accidents across the miningindustry. Mine management engaged in conduct constituting more than ordinarynegligence in that they did not complete the required examinations and allowedhazards to exist with no mitigation. . . . This violation is an unwarrantablefailure to comply with a mandatory standard.

 

Pet.at 7. The inspector found that the operator’s failure to conduct an adequateexam was reasonably likely to result in an injury that could reasonably beexpected to be fatal. He marked the order as S&S and high negligence. Afterdetermining that the violation was an unwarrantable failure to comply with amandatory safety standard, the inspector issued the order under section104(d)(1) of the Mine Act. He withdrew the crusher and the wash plant fromoperation until the mine operator terminated the order by training a designeeto conduct a thorough workplace examination. 

 

Section 56.18002(a) requires that“a competent person designated by the operator shall examine each working placeat least once each shift before miners begin work in that place, for conditionsthat may adversely affect safety or health.” 30 C.F.R. § 56.18002(a). Merelyperforming an examination is not enough to satisfy the standard—the operatormust perform an *adequate* examination. Under Commission case law, aworkplace examination “must be adequate in the sense that it identifiesconditions which may adversely affect safety and health that a reasonablyprudent competent examiner would recognize.” *Sunbelt Rentals, Inc.*, 38FMSHRC 1619, 1627 (July 2016). 

 

The first fact put forward by theSecretary—that a “workplace examination had been conducted and documented”—istherefore hollow. *See* Am. Mot. to App. Settlement at 3. This fact doesnot negate the fact of violation, the negligence finding, or the unwarrantablefailure designation. The workplace examination has to be meaningful to satisfythe safety standard; haphazard inspections do not protect miners. For instance,in *Sunbelt Rentals*, the operator performed and recorded a workplaceexamination. The exam failed to identify the loose material that would laterstrike a miner and knock him unconscious. 38 FMSHRC at 1627; *SunbeltRentals, Inc.*, 40 FMSHRC 573, 583-90 (Apr. 2018) (ALJ). The operator didnot protect the miner with its inadequate examination and could not avoidliability under section 56.18002(a).

 

Here, the record supports a findingthat the examination was inadequate. The inspector noted twenty violativeconditions. Some of the violations were “extensive and obvious,” and some hadbeen in existence for “days or weeks.” Pet. at 7. Meanwhile, the operator’sworkplace exam noted none of these issues. 

 

The inspector’s report tends tocontradict the second and final fact offered by the Secretary in support ofsettlement: that “there was no evidence that the examination was inadequate.” [10] Failure to identify and addresssafety violations can be evidence of an inadequate examination. *LRockIndustries*, 39 FMSHRC 1429 (July 2017) (ALJ);*APAC-Kansas, Inc.*, 38FMSHRC 2560 (Oct. 2016) (ALJ). The inspector documented the operator’s failureto identify twenty violations despite the extensiveness and duration of theviolative conditions. Accordingly, there *is*evidence that theexamination was inadequate. 

 

I cannot say how the Secretary hasnow concluded that “no evidence” exists in the face of the inspector’s report. Heprovides no further context or explanation for his conclusion, even when askedto supplement his original filing on this precise issue. Instead, he wants meto ignore the evidence of an inadequate examination and to accept his currentversion of events without further facts or scrutiny. To accept the Secretary’sfacts uncritically would be a derogation of my statutory duty under section110(k) of the Mine Act. 

 

By attempting to make such adrastic change with such weak and inconsistent facts, the Secretary againconveys that he does not take this violation seriously. But this is a seriousoffense. Miners continue to suffer injuries, fatal and otherwise, due toinadequate workplace examinations. Just days before the Secretary filed hismotion in this case, he released a fatality alert indicating that a miner dieddue in part to the failure to conduct an adequate workplace examination.[11] Accordingly, I take theallegations in this case seriously and would require concrete and specificfacts to justify the dramatic changes proposed. The Secretary’s motion isdevoid of such facts. I therefore must deny the proposed changes asunreasonable and inappropriate under the facts. 

 

**C.   ****The Proposed Penalty Reduction**

 

The other major defectin the present motion is the penalty reduction. The Secretary proposes adrastic penalty reduction from the assessed penalty of $22,944.00 to thecompromised value of $3,936.00. Based on the reasoning below, I find that theproposed penalty reduction is unfair and contrary to the public interest. 

 

Before passage of theMine Act, mine operators were governed by the Coal Act and its regulations. Operatorsand regulators negotiated settlements that never saw public scrutiny, andnegotiations often led to large penalty reductions for operators. SenatorRichard Schweiker (R-Pennsylvania) described the dysfunction: 

 

[Mine operators] get slapped [with]a fine of $100 or $200 or $300. They accumulate a whole lot of them and go backin court and ultimately settle them at 10 or 20 cents on the dollar... So whatyou actually assess them at and what they settle for are worlds apart and ispart of the frustration of dealing with the act.

 

123Cong. Rec. S10,277, *reprinted in*Senate Subcomm. on Labor, Comm. on Human Res., *Legislative History of the**FederalMine Safety and Health Act of 1977*,**at 1072-73 (1978) (“*Legis.Hist.*”). This system failed to deter hazardous workplace conduct, anddevastating mine accidents continued to occur. Members of Congress knew thatpaltry settlement amounts would not be sufficient incentive for mine operatorsto adopt safe and compliant practices. As Senator Wendell Ford (D-Kentucky)said: 

 

Thesettlement of penalty assessments in the past, often for as little as 30 centson the dollar, has been a disgrace, as well as a serious obstacle to effectiveuse of the civil penalty mechanism to encourage compliance. 

** **

123 Cong. Rec. S10,209, *reprinted in Legis. Hist.*, at 922. There was bipartisan consensusthat compromised settlements had become an impediment to ensuring miner safety.

 

Congress decided toreshape the settlement regime with the Mine Act.Congress identified the compromise of assessed penalties in settlement as aproblem with prior legislation, and it crafted section 110(k) of the Mine Actas a solution. By subjecting settlements to judicial review, Congress intendedto avoid “the unwarranted lowering of penalties as a result of off-the-recordnegotiations” and to ensure that “the public interest is adequately protectedbefore approval of any reduction in penalties.” S. Rep. No. 95-181, at 45(1977), *reprinted in Legis. Hist.*, at 633. 

 

It is therefore my dutyto review compromised penalties. Motions proposing large penaltyreductions—where the operator would pay only “10 or 20” or “30 cents on thedollar”—demand particular attention because they are the very settlements thatCongress saw as an obstacle to regulatory compliance. 123 Cong. Rec. S10,277,S10,209, *reprinted in Legis. Hist.*, at 1072-73, 922. The parties mustpresent concrete facts, review the six penalty criteria, and demonstrate howthe proposed settlement will be fair and protective of the public interest. 

 

Here, the publicinterest is not adequately protected. Encouraging compliance with safetyregulations was a key public interest motivating Congress to pass the Mine Act,and it has been a key public interest considered by the Commission whenscrutinizing settlements. *Black Beauty*, 34 FMSHRC at 1866. I fail to seehow this settlement could promote compliance. Instead, by allowing the operatorto pay just seventeen cents on the dollar for these two serious allegedviolations, the Secretary encourages the operator to embrace the status quo andaccept the minor settlement amounts as the cost of doing business. TheSecretary has not submitted any information to dissuade me of this thinking, orto show that a reduced penalty furthers the public interest. Accordingly, Ifind that the large penalty reduction undermines operator compliance, fails todeter dangerous behavior, and therefore contravenes the public interest. 

 

**D.   ****Non-monetary aspects of thesettlement**

 

I have also consideredthe non-monetary aspects of this settlement motion. Just as in all othersettlement motions, the Secretary includes the rote recitation that he “hasevaluated the enforcement value of the compromise and is maximizing hisprosecutorial impact in settling this case on appropriate terms.” Am. Mot. toApp. Settlement at 2. He says that resolution of this case through settlementis of “significant enforcement value to the Secretary” in part because thecitations, as modified, are “preserved for future enforcement actions and arenot subject to potential vacatur or further downward adjustment after ahearing.” Am. Mot. to App. Settlement at 2-3.

 

I accord significantweight to the value of avoiding litigation and its attendant uncertainty. However,the Secretary’s boilerplate statements do little more to help me understand howthis particular settlement meets the *AmCoal* standard. Strippingcitations of their S&S and unwarrantable failure designations also impactsfuture enforcement actions, but the Secretary provides no explanation of thesespecific changes and how they maximize prosecutorial impact. 

 

Furthermore, “[t]he Commissionrecognized that significant non-monetary value flows from accepting thecitations as written.” *Solar Sources Mining*, 41 FMSHRC 594, 601 (Sept.2019) (internal citations omitted). Here, the Secretary has elected to modify bothof the citations in this docket and forfeit the non-monetary value that wouldflow from preserving them as written. 

 

Altogether, although there are somenon-monetary benefits to this settlement, none of the Secretary’s generalizedstatements convince me that the particular changes proposed here are “fair,reasonable, appropriate under the facts, and protect[] the public interest.” *Am.Coal Co.*, 38 FMSHRC at 1976. 

 

**III.            ****Conclusion**

 

This case boils down to facts. TheSecretary must submit facts in support of the proposed settlement, and I mustscrutinize those facts. Here, the Secretary has submitted a grand total ofthree relevant sentences to support the 82.8 percent penalty reduction proposed.Most of the information submitted is conclusory and redundant. Few of the factsare concrete or specific. He does nothing to explain why the submitted factsdiffer from the inspector’s report. He fails to tailor the facts to the penaltycriteria or the modified portions of the citations. He ignores the seriousnessof the alleged violations. And, when asked for more information, he rebuffs theCourt and merely rearranges the information already encapsulated in the originalmotion. 

 

 

 

 

It is my statutory duty to reviewthe sufficiency of the Secretary’s facts. If I were to approve this proposedsettlement based on the submitted facts, the judicial review provision insection 110(k) of the Mine Act would be rendered meaningless. I cannot close myeyes to the deficiencies of the facts submitted here, nor to the risk presentedto miners by the violations alleged in this case. I must deny this motion. 

 

WHEREFORE,the Amended Motion to Approve Settlement is hereby **DENIED**.

 

 

 

/s/Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

 

 

 

 

 

Distribution:(Electronic and Certified Mail)

 

Bruce H.Jakubauskas, CLR, U.S. Department of Labor, MSHA, Thornhill Industrial Park,178 Thorn Hill Road, Suite 100, Warrendale, PA 15086, jakubauskas.bruce@dol.gov

 

Dennis Sorter, Harper Companies, P. O. Box 18549, SaltLake City, Utah 84118, dsortor@harpercompaniesinc.com

----

[1] Any otherinformation adduced by the Secretary regarding this citation was eitherredundant or mere conclusion. Often, when a motion to approve settlement isfiled by an MSHA conference and litigation representative (CLR), the motionrelies heavily on legal conclusions that are either improperly applied orinadequately supported. The standard boilerplate language used by every CLRcontains legal information that they are not sufficiently trained to understandor qualified to use in a legal document.  Moreover, the Commission requires theSecretary to provide “facts,” not conclusions, in support of settlement. 30C.F.R. § 2700.31(b).  

[2]Mine Safety & Health Administration, U.S.Dep’t of Labor, Fatality Alert: August 4, 2022 Fatality, https://www.msha.gov/data-reports/fatality-reports/2022/august-4-2022-fatality/fatality-alert. 

[3]Mine Safety & Health Administration, U.S. Dep’t of Labor,Fatality Alert: January 26, 2022 Fatality, https://www.msha.gov/data-reports/fatality-reports/2022/january-26-2022-fatality/fatality-alert. 

[4]Mine Safety & Health Administration, U.S.Dep’t of Labor, December 13, 2021 Fatality – Preliminary Report,https://www.msha.gov/data-reports/fatality-reports/2021/december-13-2021-fatality/preliminary-report-0. 

[5]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface (Construction Sand and Gravel)Fatal Power Haulage Accident–April 19, 2021, https://www.msha.gov/data-reports/fatality-reports/2021/april-19-2021-fatality/final-report. 

[6]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report ofInvestigation: Facility (Coal) Fatal Power Haulage Accident– August 11, 2021, https://www.msha.gov/data-reports/fatality-reports/2021/august-11-2021-fatality/final-report. 

[7]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Mine (Sand) Fatal PowerHaulage Accident– September 16,2020,https://www.msha.gov/data-reports/fatality-reports/2020/september-16-2020-fatality/final-report. 

[8] Mine Safety & Health Administration, U.S. Dep’t of Labor,Report of Investigation: Underground Metal Mine (Gold Ore) Fatal Power HaulageAccident– November 11, 2018, https://www.msha.gov/data-reports/fatality-reports/2018/fatality-16-november-11-2018/final-report. 

[9]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Nonmetal Mine (Crushed Stone)Fatal Power Haulage Accident–March 24, 2017, https://www.msha.gov/data-reports/fatality-reports/2017/fatality-3-march-24-2017/final-report. 

[10] Any otherinformation adduced in support of the proposed modifications was nonfactual andconclusory in nature.

[11] Mine Safety & Health Administration, U.S. Dep’t of Labor,Fatality Alert: September 9, 2022 Fatalityhttps://www.msha.gov/data-reports/fatality-reports/2022/september-9-2022-fatality/fatality-alert.