FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, DC 20004

Office: (202) 434-9933 / Fax: (202) 434-9949 

 May 10, 2023

DECISION APPROVING SETTLEMENT

The Secretary has filed a Motion to Approve Settlement to which Respondent has agreed. I 

have considered the six statutory civil penalty criteria contained at § 110(i) of the Federal Mine 

Safety and Health Act of 1977, as amended, 30 U.S.C. § 820(i), and find that the proposed 

penalty amounts are appropriate. It is hereby ORDERED that:

The penalty for the now-admitted violation in this case is reduced as follows:

Citation/Order MSHA’s

Proposed Penalty

Settlement

Amount

Other modifications to citation/order

9566590 $3,546 $2,500 No modifications to the inspector’s 

evaluation but 30% reduction in 

penalty

 

Citation No. 9566590 alleges a now-admitted violation of 30 C.F.R. §75.517. That standard is 

derived from a statutory provision. It is titled “Power wires and cables; insulation and 

protection,” and provides “Power wires and cables, except trolley wires, trolley feeder wires, and 

bare signal wires, shall be insulated adequately and fully protected.”

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

 Petitioner

 v. 

TWIN STATE MINING, INC., 

Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2023-0051 

A.C. No. 46-09496-565217 

Mine: Mine No. 43 
The issuing inspector described the condition or practice as follows:

The cable on the #1 roof bolter located on the #2 section is not insulated adequately 

and fully protected, in that when checked there are 2 damaged places in the cable 

exposing the inner leads and one of the damaged areas has damage to one of the 

inner leads exposing the inner bare wires to miners. Standard 75.517 was cited 26 

times in two years at mine 4609496 (26 to the operator, 0 to a contractor).

Petition for civil penalty at 19.

The citation was terminated upon the following action: 

Both affected areas have been cleaned and the damaged lead has been repaired and the cable 

has been taped up in both places. Id. (emphasis added).

The Settlement Motion offers the following for the penalty reduction:

The basis for the penalty reduction is that the Respondent claims it would present 

evidence at hearing that the bolter’s power cable was insulated adequately and fully 

protected upon the inspector’s arrival, and that the inspector himself instructed that 

the tape which served to protect and insulate the cable be removed. Thus, 

Respondent claims that but for the inspector requiring the removal of the tape which 

was insulating and protecting the inner leads of the cable, there would have been 

no inner leads exposed and no violation of section 75.517. In light of this dispute, 

the parties agree to disagree over the meaning of the potential evidence, and the 

proposed modifications are acceptable to the parties in lieu of the hearing process.

Motion at 3.

Analysis:

Violations of this nature are especially serious. One need look no further than a 2022 

fatality attributable to this very standard. As stated in the MSHA fatal electrical accident report: 

“On September 1, 2022, at approximately 4:40 p.m., Kristofer Ball, a 33 year-old roof bolter 

with approximately 12 years of mining experience, was fatally injured when he contacted an 

energized 480-volt trailing cable. The accident occurred because the mine operator did not: 1) 

fully protect the roof bolting machine’s trailing cable, and 2) provide adequate task training for 

handling the roof bolting machine’s trailing cable.” 

https://www.msha.gov/data-reports/fatality-reports/2022/september-1-2022-fatality/final-report. 

 

Other fatalities attributable to this standard have occurred. See, for example: 

https://arlweb.msha.gov/FATALS/2003/FTL03c21.htm and

https://arlweb.msha.gov/readroom/FOIA/2007InternalReviews/Sago%20Internal%20Review%2

0Report.pdf

Although the Court can appreciate that the $1,046.00 reduction in the penalty must be 

balanced against the cost of proceeding to a hearing, if that is the test for settlement then many 
citations would be impacted by such a de facto policy. Further, a $1,000.00 plus penalty 

reduction is not a negligible sum. 

Here, it is noted that the Secretary does not buy into the Respondent’s claim and that is 

understandable because the inspector found two damaged areas and it does not stand to reason 

that inspectors would be in the business of creating violations, which is essentially the claim 

being lodged here. Something caught the inspector’s attention. It is unlikely in the extreme that 

an inspector would require an adequately insulated and fully protected cable to be untapped, only 

to have it retaped. 

From the Court’s perspective, situations like this are more likely to be resolved if it had 

the ability to see the inspector’s notes. Based on the information available, it appears that 

Inspector Don L. Vest was diligently performing his inspection responsibilities, an observation 

the Secretary implicitly adopts. Also, as the Court has recently noted, photographs, where they 

can be safely taken in the underground coal mining environment, may dispel what may be

frivolous claims by mine operators. Of course, the Court would need to have the ability to see 

such photographs, an option presently not available.

Conclusion

Despite the Court’s concerns, as expressed above, review of settlement motions is presently 

circumscribed by Commission case law. As such, the Court has considered the Secretary’s Motion 

and approves it solely on the basis of the Commission’s decisions in The American Coal Co., 40 

FMSHRC 983 (Aug. 2018) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) for the 

standard to be applied by Commission administrative law judges when reviewing such settlement 

motions under the Commission’s interpretation of section 110(k) of the Mine Act. Per the 

Commission’s decisions on the scope of a judge’s review authority of settlements, the 

“information” presented in this settlement motion is sufficient for approval. 

 Accordingly, the motion to approve settlement is GRANTED, and Twin State Mining, 

Inc. is ORDERED to pay the Secretary of Labor the sum of $2,500.00 within 30 days of this 

order.1.

 Upon receipt of payment, this case is DISMISSED.

____________________

William B. Moran

 Administrative Law Judge

1 Penalties may be paid electronically at Pay.Gov, a service of the U.S. Department of the Treasury, at 

https://www.pay.gov/public/form/start/67564508. Alternatively, send payment (check or money order) to: U.S. 

Department of Treasury, Mine Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

Please include Docket and A.C. Numbers. It is vital to include Docket and A.C. Numbers when remitting payments.
Distribution:

Andrenna H. Berggren, Office of the Regional Solicitor, 201 12th Street South, Arlington, VA 

22202, Berggren.Andrenna.M@dol.gov 

Justin K. Chandler and Jonathan Ellis, Steptoe & Johnson PLLC, STEPTOE & JOHNSON 

PLLC, Chase Tower, Seventeenth Floor, P.O. Box 1588, Charleston, WV 25326

Justin.Chandler@steptoe-johnson.com and Jonathan.Ellis@steptoe-johnson.com