Secretary of Labor v. Rulon Harper Construction, Inc.

Plain-English summary

Rulon Harper Construction operated a sand-and-gravel pit near Salt Lake City where MSHA issued eight citations, including four for missing or deficient berms and one for a parking brake that would not hold a truck on a grade. The parties proposed reducing the combined penalties from $22,134 to $7,227, modifying six citations, removing significant-and-substantial designations, and vacating one berm citation. Judge Margaret Miller denied approval because the amended motion offered few supporting facts and did not resolve conflicts with the inspector's descriptions of the roads, drop-offs, equipment, and brake test. She found that visibility, partial berms, seat belts, and rollover protection did not justify the proposed gravity changes, and that paying about 30 cents on the dollar would not encourage compliance. The Commission later affirmed the settlement denial and remanded the case.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9300(a) and 56.14101(a)(2); 30 U.S.C. § 820(k)
• Outcome: The amended settlement motion was denied; the Commission later affirmed that denial and remanded the case.
• Subsequent review: The Commission reviewed the ruling in west-2022-0249-commission.
• Key point: Proposed settlement reductions must be supported by facts that address the cited hazard and remain consistent with the inspector's findings.

Full text (FMSHRC public release)

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, [email protected]

Dennis Sorter, Harper Companies, P. O. Box 18549, Salt
Lake City, Utah 84118, [email protected]

[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, 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 –
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