1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th St., Suite 443

Denver, CO 80202-2500

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

November 2, 2022 

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.” 
2 

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) 
3 

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. 
4 

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 

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/finalreport. 

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/finalreport. 

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,
5 

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 “skidhttps://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/fatalityreports/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/finalreport. 

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. 
6 

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 wellfounded 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. 
7

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 
8 

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 (RPennsylvania) 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 

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, 2021 

https://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, 2021 

https://www.msha.gov/data-reports/fatality-reports/2021/february-22-2021-fatality/final-report. 
9

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, 
10 

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. 

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