**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

 

##  

|  

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

  |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

####  

** **

**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:
| 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.”

** **

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%20Report.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.

 

 

 

 

/s/William B. Moran

                                                                                    WilliamB. Moran

                                                                                    AdministrativeLaw Judge

 

 

 

 

 

 

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, WV25326Justin.Chandler@steptoe-johnson.com and Jonathan.Ellis@steptoe-johnson.com

 

####  

----

[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.