**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 2022-0250

                                    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 2022-0250** |
| 9479096                       | $  3,274.00                        | $  662.00             | Modify  gravity from “Reasonably Likely” to “Unlikely” and modify Significant and  Substantial from “Yes” to “No.”                                                                               |
| 9479097                       | $  3,274.00                        | $  3,274.00          | No  change.

                                                                                                                                                                                |
| 9479098                       | $   296.00                         | $  296.00             | No  change. 

                                                                                                                                                                               |
| 9727204                       | $  3,274.00                        | $  199.00             | Modify  gravity from “Reasonably Likely” and “Fatal” to “Unlikely” and “Lost Workdays  or Restricted Duty,” and modify Significant and Substantial from “Yes” to  “No.”                         |
| 9727205                       | $  3,274.00                        | $  662.00             | Modify  gravity from “Reasonably Likely” to “Unlikely” and modify Significant and  Substantial from “Yes” to “No.”                                                                               |
| 9727208                       | $  3,274.00                        | $  1,472.00          | Modify  gravity from “Fatal” to “Permanently Disabling.”                                                                                                                                          |
| 9727211                       | $  3,274.00                        | $    0.00             | Vacate. 

                                                                                                                                                                                    |
| 9727212                       | $  2,194.00                        | $  662.00             | Modify  gravity from “Fatal” to “Lost Workdays or Restricted Duty.”                                                                                                                               |
| **TOTAL**                     | **$  22,134.00**                  | **$  7,227.00**      | ** **                                                                                                                                                                                         |

 

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 eight citations issued to the Respondent on March 28, 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 $7,227.00,representing a **savings of nearly $15,000.00 for the mine operator**and a **total penalty reduction of 67.3 percent**. The motion alsoproposed numerous substantive modifications to the text of the citations. Thefew facts offered in support of the proposed modifications were unconvincing,and I found that they were insufficient to sustain the changes proposed. 

 

Accordingly, the Courtnotified the parties that their settlement could not be approved as submittedand gave the parties additional time to renegotiate their agreement or providemore 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 theBerm Citations**

 

During his inspectionon March 28, 2022, the mine inspector cited the Respondent for at least **fourseparate violations of section 56.9300(a)**, which requires that “[b]ermsor guardrails shall be provided and maintained on the banks of roadways where adrop-off exists of sufficient grade or depth to cause a vehicle to overturn orendanger persons in equipment.” 30 C.F.R. § 56.9300(a). 

 

Citation No. 9479096 alleges a violation as follows:

 

The berms on the elevated feed rampfor the crusher were not maintained. The south berm was in a marginal conditionbut the north berm was almost entirely gone. The ramp was about 100’ long and aFEL over traveling the north edge would encounter a drop off of about 6 feet.Miners over traveling the edge would be exposed to fatal blunt force trauma.

 

Pet. at 6. The inspector determinedthat the violative condition was reasonably likely to cause an injury, and thatthe resultant injury could reasonably be expected to be fatal. He marked thecitation as moderate negligence and as S&S. The Secretary assessed apenalty of $3,274.00.

 

Citation No. 9727204 alleges a violation as follows: 

 

The elevated roadway adjacent tothe hole dug by the discharge conveyor on the wash plant was not provided witha berm to prevent equipment from over traveling the edge. The hole is aboutfour feet deep and has a soft perimeter edge. This area is used by theskidsteer and the service truck was parked within a few feet of the edge.Should a vehicle (particularly the skidsteer) over travel this edge andoverturn, fatal crushing/blunt force trauma would be the expected result. 

 

Pet. at 12. The mine inspectorfound that the lack of a berm was reasonably likely to cause injury, and thatthe injury could reasonably be expected to be fatal. He determined that theviolation was S&S and resulted from moderate negligence. The penalty wasassessed at $3,274.00.

 

Citation No. 9727208 alleges a violation as follows: 

 

The elevated roadway being used forthe FEL to access the wash plant feed pile was not provided with berms on bothsides of the ramp. The approx. 50’ long by 6’ high ramp had no berm whatsoeveron the south side. There were vehicle tracks trailing off the side of the ramp,indicating that in addition to the FEL, this ramp was used by smaller vehicles.Should a vehicle over travel the edge, fatal blunt force trauma would be theexpected injury. 

 

Pet. at 16. The inspector foundthat the condition was reasonably likely to cause injury, and that theresulting injury could reasonably be expected to be fatal. He designated thecitation as S&S and as moderate negligence. The Secretary assessed apenalty of $3,274.00.

 

Finally, Citation No. 9727211alleges a violation as follows: 

 

The settling ponds were notprovided with berms to protect the equipment accessing the surrounding areasfrom over traveling the edges and falling into the water. There was trackscrossing a material bridge across the pond and the edges of the roadway had begunto fail. Should a miner over travel the edge, fatal drowning would be theexpected result. 

 

Pet. at 18. The mine inspectordetermined that the lack of a berm was reasonably likely to cause an injurythat could reasonably be expected to be fatal. He marked the citation asS&S and as moderate negligence. The Secretary assessed a $3,274.00 penaltyfor this citation. 

 

The violations allegedhere are serious. Accidents involving mobile equipment and powered haulageaccount for the greatest proportion of fatalities in mines.[1] Many of these accidents arecaused by the lack of properly maintained berms. In 2021, at least two minersdied as a result of inadequate berms. A miner with 43 years of mine experience waskilled while tramming an excavator along an elevated roadway that abutted adredge pond.[2]Because the mine operator did not provide berms or guardrails on the edge ofthe roadway, and the excavator rolled over into the pond and the minersustained fatal injuries. A second miner died when his haul truck overturned atthe edge of a dumpsite that featured a deficient berm of inadequate height,width, thickness, and firmness.[3]In 2019, a 22-year-old electrician was killed while working in a trench when afront-end loader toppled over the unguarded edge of the trench and crushed him.[4] In 2017, another fatal accidentoccurred when a haul truck overturned at a dumpsite that lacked proper bermsand barriers.[5]In 2015, a miner sustained fatal injuries when his haul truck went over the edgeof a bermless road and rolled over into a slough pond.[6] In 2013, a miner with 25 yearsof experience fell 80 feet to his death when his truck traveled through a holein the berm and over the edge of a highwall.[7]In 2012, an experienced miner with almost five decades in the industry drownedwhen the skid steer he was operating traveled over a drop-off and into a waterhole.[8]Mine management in that case failed to provide berms in the work area. 

 

Year after year, minersdie because operators fail to install and maintain proper barriers. Theseverity of these accidents could be minimized if operators were to follow theregulations with diligence and care. But operators take their cue from theSecretary, and—time and time again—the Secretary has agreed to settle bermviolations like those before me today for mere cents on the dollar. 

 

Once again here, theSecretary sends the message that these violations are not serious. He agrees tovacate one citation, remove the S&S from two others, alter the gravityfindings, and reduce the penalties for the four berm violations by 82 percent. It is clear that the MSHA conference and litigationrepresentative (CLR) is not familiar with the current case law describingS&S and has failed to apply the proper legal analysis in this case. Icannot approve a settlement that is contrary to the law.

 

The Secretary is carelessin his attempt to justify the proposed changes. As support for themodifications to the four berm citations, the Secretary offers just fivesentences of “facts.”[9]Much of the submitted information is irrelevant, uninformative, orunconvincing. For Citation No. 9479096, he says that “feed ramp wasstraight, visibility was good, and a partial berm was in place” which “wouldhave alerted the loader operator that they were close to the edge of the ramp.”Am. Mot. to App. Settlement at 3. For Citation No. 9727204, he submits that the “skid-steer in thearea was equipped with rollover protection and a seatbelt.” He further states that“the alleged drop off was 4 [feet]” and that“[v]ehicles in the area stop at this location and do not continue totravel farther.” Am.Mot. to App. Settlement at 4. ForCitation No. 9727208, the Secretary justifies the proposed changes by sayingthat the “front-end loader was outfitted with an enclosed cab with rollover protection and a seatbelt, and the highest overtravel hazard was 6 [feet]above soft earthen material.” Am. Mot. to App. Settlement at 4. 

 

These facts cannot support the proposed S&S changes. The Secretary submits that“visibility was good,” but the S&S analysis is conducted in the continuedcourse of normal mining operations, and visibility conditions could worsen. *SeeU.S. Steel Mining Co.*, 7 FMSHRC 1125, 1130 (Aug. 1985). He notes that “apartial berm was in place,” but a so-called partial berm described by aninspector as “almost entirely gone” does little to prevent accidents; it alsodoes little to satisfy a standard requiring not just that berms exist, but alsothat they be maintained. The seatbelts and rollover protection on the mobileequipment are redundant safety features that cannot be considered as part ofS&S analysis. *See Cumberland Coal Res., LP v. FMSHRC*, 717 F.3d 1020,1028-29 (D.C. Cir. 2013).

 

Meanwhile, the inspector set forth a strong basis for the S&Sdesignations. For CitationNo. 9479096, a 100-foot elevated ramp with a 6-foot drop-off was left with anunmaintained and almost nonexistent berm. For Citation No. 9727204, theoperator failed to place a berm on an elevated roadway abutting a 4-foot-deephole with a soft perimeter. Large mobile equipment was parked within feet ofthe edge. Both alleged violations would be reasonably likely to cause a hazardthat could injure a miner. The 4-foot and 6-foot drop-offs suggest that aninjury could be reasonably serious, given the heavy equipment that was used onthese roads. In my estimation, the Secretary has not presented any concreteinformation that would mitigate the inspector’s well-founded S&Sdetermination. 

 

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 5. 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.

 

Theseimproper and irrelevant case citations misstate the law, and yet they areincluded in every settlement document filed by a CLR. A CLR is not qualified to analyzeor interpret case law. By attempting to do so here, the CLR has proposed asettlement that ignores the meaning of S&S as articulated in *NewtownEnergy*, 38 FMSHRC 2033 (Aug. 2016), and its progeny.  The presentsettlement fails to set forth the correct case law and, moreover, fails toprovide facts demonstrating that the parties understand the legal requirementsand have met those requirements. I cannot approve such a settlement. In sum, 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 penaltyreductions associated with Citations Nos. 9479096, 9727204, and 9727208 areinappropriate. The proposed penalties do not reflect the seriousness of thealleged violations and do not adequately deter future violative conduct. Evenif the gravity changes are proper, I do not have to accept the proposedpenalties and I am not bound by the Secretary’s Part 100 determinations. Forfurther discussion of the penalty, see *infra*, Section II.C.

 

Accordingly, I find that theS&S modifications for Citations Nos. 9479096 and 9727204 are unreasonableand inappropriate under the facts. Similarly, I take issue with the proposedpenalties for Citations Nos. 9479096, 9727204, and 9727208 on the same basis. Theseproposed modifications are therefore denied. 

 

**B.    ****The Proposed Modifications toCitation No. 9727205**

 

Citation No. 9727205alleges a violation of 30 C.F.R. § 56.14101(a)(2) as follows: 

 

The parkbrake on the GMC Service truck failed to hold with its typical load on themaximum grade it travels. The test area was an access road to the pit and wasselected by the mine. The truck rolled immediately and rapidly when the parkbrake was tested, it stopped rolling when the service brake was reapplied. Thistruck is used as needed around the mine site and with miners accessing the backof the truck as a work platform in addition to using the truck to haulmaintenance supplies. There is a vice mounted on the back of the truck. Shoulda miner be struck by the truck due to a non-functional park brake, fatalcrushing blunt force trauma would be the expected result. Standard 56.14101(a)(2)was cited 3 times in two years at mine 4202078 (3 to the operator, 0 to acontractor). 

 

Pet. at 14. The cited standardrequires that, “[i]f equipped on self-propelled mobile equipment, parkingbrakes shall be capable of holding the equipment with its typical load on themaximum grade it travels.” 30 C.F.R. § 56.14101(a)(2). The inspector determinedthat the alleged violation was reasonably likely to cause an injury, and thatthe resulting injury could reasonably be expected to be fatal. He marked thecitation as S&S and as moderate negligence. The Secretary assessed a civilpenalty of $3,274.00 for this citation. 

 

Again here, theSecretary proposes major changes. He seeks to modify the likelihood of injuryfrom “Reasonably Likely” to “Unlikely,” to delete the S&S designation, andto reduce the penalty down to $662.00.  In support of these changes, theSecretary says that “[t]here is no evidence that the truck is used while ongrades, and the work areas around the plant are level. The service truck isused for maintenance, travels and parks on level ground, and is not reasonablylikely to cause serious injury.” Am. Mot. to App. Settlement at 4. 

 

These facts do notmitigate the original S&S finding. Despite the Secretary’s claim that workareas at the mine are level, the mine access road selected by the operatoritself for the test was on a grade. It is disingenuous to say that the truckwas tested on a graded access road and also that no grades exist at the mine. TheSecretary does not explain or account for the discrepancy between his facts andthe inspector’s findings, and I have trouble accepting the Secretary’s facts inthe absence of any explanation. This type of violation must be treated asserious. Unfortunately, braking system defects continue to result in fatalaccidents in the mining industry.[10]Therefore, without a more convincing explanation, I must deny the proposedS&S changes as unreasonable and inappropriate under the facts. 

 

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

 

The other major issuein the present motion is the penalty reduction. The Secretary proposes adrastic penalty reduction from the assessed penalty of $22,134.00 to thecompromised value of $7,227.00. 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. The key public interest to consider inevaluating settlements is whether the proposal encourages compliance withsafety regulations. *Black Beauty*, 34 FMSHRC at 1866. I fail to see howthis settlement could promote compliance. Instead, by allowing the operator topay just thirty cents on the dollar for these serious 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 3. 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 3. This language is found in everysettlement motion filed by a CLR, yet a CLR is not qualified to comment onlegal standards and the law regarding settlements. It is hard to imagine thatreducing penalties to such a degree has any benefit to future enforcementactions. 

 

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 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 sixof the eight 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**

 

The violations allegedin this docket are serious, but the Secretary appears to treat them casually. Heproposes substantial modifications to the text of the citations and a penaltyreduction of nearly seventy percent. To justify these changes, he submits fewfacts. The information that was submitted is littered with inconsistencies,irrelevancies, and leaps in logic. 

 

While the Secretary mayhave taken an indifferent approach in this case, I will not. I take mystatutory duty to review settlements seriously. I find that the facts submittedby the Secretary simply cannot hold up to reasonable scrutiny. For the reasonsstated above, the proposed settlement is not fair, reasonable, appropriateunder the facts, or protective of the public interests. It is therefore denied.

 

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]Mine Safety & Health Administration, U.S. Dep’t of Labor, CY2021 MSHA Fatalities,https://www.msha.gov/sites/default/files/events/2021%20MSHA%20Fatalities%206-9-21.pdf. 

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

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

[4]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Nonmetal Mine (CrushedLimestone) Fatal Powered Haulage Accident– June 10, 2019, https://www.msha.gov/data-reports/fatality-reports/2019/june-10-2019-fatality/final-report. 

[5]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Non Metal Mine (Limestone)Powered Haulage Accident– June8, 2017, https://www.msha.gov/data-reports/fatality-reports/2017/fatality-4-june-08-2017/final-report. 

[6]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Nonmetal Mine (Sand andGravel) Fatal Powered Haulage Accident–March 17, 2015, https://www.msha.gov/data-reports/fatality-reports/2015/fatality-5-march-17-2015/final-report. 

[7]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Nonmetal Mine (Crushed andBroken Limestone) Fatal Powered Haulage Accident– September 16, 2013, https://www.msha.gov/data-reports/fatality-reports/2013/fatality-11-september-16-2013/final-report. 

[8]Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Surface Nonmetal Mine (Cement) FatalPowered Haulage Accident–January 27, 2012, https://www.msha.gov/data-reports/fatality-reports/2012/fatality-1-january-27-2012/final-report. 

[9] The Secretary has not submittedany facts in support of the vacatur of Citation No. 9727211. I accept theSecretary’s decision to vacate this citation, since he is owed some discretionin his enforcement decisions. I note, however, that this discretion should notbe plenary, especially when vacatur occurs as part of a larger settlement. Experiencereveals that the Secretary often vacates citations as part of the *quid proquo* of settlement, and this dealmaking should be subject to judicial reviewpursuant to section 110(k) of the Mine Act under an “abuse of discretion”standard. 

[10]*See. e.g.*, Mine Safety & Health Administration, U.S. Dep’t of Labor,Report of Investigation: Facility (Coal) Fatal Powered Haulage Accident– August 11, 2021https://www.msha.gov/data-reports/fatality-reports/2021/august-11-2021-fatality/final-report; Mine Safety & Health Administration, U.S.Dep’t of Labor, Report of Investigation: Underground (Lead-Zinc Ore) FatalPowered Haulage Accident–February 22, 2021https://www.msha.gov/data-reports/fatality-reports/2021/february-22-2021-fatality/final-report.