FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19th ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

April 29, 2020

SUMMARY DECISION

ORDER ACCEPTING APPEARANCE

DECISION APPROVING PARTIAL SETTLEMENT

Before: Judge Simonton 

I. INTRODUCTION

This case is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration, against Gibson 

County Coal LLC (”Gibson” or “Respondent”), pursuant to the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (Mine Act) and 29 C.F.R. § 2700.20 et seq. The parties

settled five of the six citations included in this docket, and the terms of the settlement, along with 

my approval, are set out at the end of this decision. Citation No. 9109632 remains in dispute.

This case was initially scheduled for hearing on December 18, 2019. During a prehearing 

conference call with the court, however, the parties asked to proceed without a hearing. The 

parties agree on all relevant facts and are in agreement that the only remaining dispute in this 

case can be resolved by answering a purely legal question. Both the Secretary and Respondent 

filed motions for summary decision and replies. The sole issue for resolution is whether the 

failure of a miner to wear the miner-wearable component of the proximity detection system 

provided by Respondent is a violation of 30 C.F.R. § 75.1732(a).

Based on the agreement of the parties to file cross-motions for summary judgement and 

the facts as represented by both parties, I find that there is no genuine issue of material fact. For 

the reasons set forth below, I conclude that the Secretary is entitled to summary decision as a 

matter of law, AFFIRM the citation, and assess a penalty of $832.00 against Gibson.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

 v.

GIBSON COUNTY COAL LLC,

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2019-0329

A.C. No. 12-02215-493781

Mine: Gibson Mine
II. STIPUATIONS OF FACT

The parties submitted the following joint stipulations in their motions for summary

decision:

1. Gibson County Coal, LLC, is an “operator” as defined in Section 3(d) of the Federal 

Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. 803(d), at the

coal mine at which the citation at issue in these proceedings was issued.

2. The Gibson Mine is operated by Respondent in this case, Gibson County Coal, LLC.

3. The Gibson Mine is an underground coal mine subject to the jurisdiction of the Mine Act.

4. At all relevant times, the products of the Gibson Mine entered commerce or products 

affect commerce, within the meaning of the Mine Act, 30 U.S.C. §§ 802(b) and 803.

5. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judges pursuant to Sections

105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.

6. 30 C.F.R. § 75.1732(a)1 is a mandatory health or safety standard as that term is defined in 

Section 3(l) of the Mine Act, 30 U.S.C. § 802(l).

7. An injury caused by a proximity detection system failing to stop a continuous mining 

machine from coming into contact with a miner is reasonably likely to result in a fatality.

8. The parties agree the failure to wear a miner-wearable component would be a Significant 

and Substantial contribution to the cause and effect of a mine safety hazard.

9. Only one (1) miner was affected, as recorded in Block 10(d) of Citation No. 9109632.

10. The parties stipulate the negligence level of the operator is correctly reflected as low in 

Block 11 of Citation 9109632.

11. With the exception of the first sentence, paragraph 8 of Citation 9109632 correctly 

describes the accident that occurred at the Gibson Mine on May 2, 2019.

12. The proximity detection system in use on Respondent’s #6467A Continuous Mining 

Machine required the use of miner-wearable components on individual miners working

on the working section.

1 Citation No. 9109632 was originally issued alleging a violation of 30 C.F.R. § 75.1732(b)(1). 

Pursuant to an unopposed Motion to Amend Complaint and Citation, granted on December 17, 

2019, Box 9.C. for Citation No. 9109632 was amended to allege a violation of 30 C.F.R. § 

75.1732(a). 

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13. On May 2, 2019, the injured roof bolter operator was a miner working on MMU 007-0, 

an active working section of the mine on the date in question.

14. On May 2, 2019, when he was struck by the #6467A Continuous Mining Machine, the 

roof bolter operator was not wearing his company-issued miner-wearable component.

15. The proposed penalty of $832.00 was properly assessed pursuant to the gravity

determination in Citation No. 9109632, and the provision of Part 100 of the Code of 

Federal Regulation. Payment by Respondent of the proposed penalty of $832.00 will not 

affect Respondent’s ability to remain in business.

16. The individual whose signature appears in Block 22 of the citation at issue in these

proceedings was acting in his official capacity and as an authorized representative of the

Secretary of Labor when the citation was issued.

17. A duly authorized representative of the Secretary served the subject citation and

termination thereof upon the agent of the Respondent at the date and place stated therein, 

as required by the Mine Act, and the citation and termination may be admitted into 

evidence to establish its issuance.

18. The citation contained in Exhibit A attached to the Petition for Assessment of Penalty for 

this docket is an authentic copy of the citation at issue in this proceeding with all

appropriate modifications and terminations, if any.2

III. BACKGROUND FOR CITATION NO. 91096323

On May 2, 2019, as a continuous mining machine (CMM) was moving across a section

of the underground coal mine, a roof bolter cable was lying on the ground in the last open 

crosscut, in the way of the moving CMM. The CMM stopped moving to allow the roof bolter 

operator time to hang the cable. Once the cable was hung, the CMM operator checked to ensure 

that all miners were clear of the machine and then announced he was “coming out.” After 

tramming another six to ten feet, the CMM operator heard the roof bolter operator yell to him to

stop the CMM and back it up because it was on his foot. After lifting the CMM’s cutting head, 

reversing the machine, and shutting it down, the CMM operator ran to the front of the machine 

and found the roof bolter operator with an injured foot. 

2 The citation contained in Exhibit A does not, in fact, account for the amendment made to the 

cited standard pursuant to the Secretary’s unopposed motion granted on December 17, 2019. See 

supra note 1.

3 This factual and procedural summary is based on the identical “Factual Background” sections 

found in the parties’ motions for summary decision, as well as on the joint stipulations, where 

noted. Secretary’s Motion for Summary Decision (Sec’y Mot.) at 4–6; Respondent’s Motion for 

Summary Decision (Resp. Mot.) at 5–6.

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The roof bolter operator was not wearing his miner-wearable component of the CMM’s 

proximity detection system when he was struck. Joint Stipulation (Jt. Stip.) #14. It was found,

instead, on the roof bolting machine he had been operating. After first aid had been administered 

to the roof bolter operator and he was transported to the hospital, both the CMM’s proximity 

detection system and the roof bolter operator’s miner-wearable component were tested. Both 

functioned properly. Mining operations resumed after it was determined that all other miners in 

the working section were wearing their respective miner-wearable components.

On May 13, 2019, MSHA Inspector Daniel Mann reviewed Gibson’s records and learned 

of the May 2 accident. Inspector Mann issued Citation No. 9109632, alleging that Gibson 

violated 30 C.F.R. § 75.1732(b)(1) by failing “to ensure that a miner was wearing a minerwearable component that stopped the continuous miner before coming in contact with a miner.” 

Mann determined that the violation was reasonably likely to result in a fatal injury, and that the 

violation was significant and substantial and affected one person. He determined that the 

violation was the result of low negligence. Pursuant to the Secretary’s unopposed Motion to 

Amend Complaint and Citation, granted on December 17, 2019, Citation No. 9109632 was 

amended to allege a violation of 30 C.F.R. § 75.1732(a).

IV. PARTY ARGUMENTS

Section 75.1732(a) states in pertinent part that “the mine operator must provide a minerwearable component to be worn by each miner on the working section.” The Secretary argues 

that Gibson violated § 75.1732(a) when it failed to ensure that the roof bolter operator was 

wearing his miner-wearable component while working on the working section. Sec’y Mot. at 8. 

The Secretary alleges that the standard’s meaning is plain: operators must provide minerwearable components of proximity detection systems and ensure that miners actually wear them. 

Id. Any other interpretation would undercut the purpose of the standard and put miners at risk of 

serious bodily harm or death. Id. at 9. Alternatively, if the court were to determine that the 

language of § 75.1732(a) is ambiguous, the Secretary asserts that his interpretation is both 

reasonable and entitled to deference. Id. at 11.

Respondent argues that the citation should be vacated because the plain language of § 

75.1732(a) does not make operators liable if a miner fails to wear the miner-wearable component

of a proximity detection system. According to Gibson, the word “provide” in the standard is the 

only term that imposes a duty on operators, limiting operators’ obligation under the standard to 

furnishing miner-wearable components to miners. Resp. Mot. at 9; Respondent’s Response to 

Secretary’s Motion for Summary Decision at 2. Gibson asserts that while other subsections of 

the standard require operators to ensure that miners are wearing the components at the start of 

their shift and that the components are working properly, no part of the standard requires 

operators to ensure that miners wear the components for the duration of their shift. Resp. Mot. at 

9–10. Because Gibson provided an operable miner-wearable component to the miner whose 

injury ultimately gave rise to this citation, Gibson argues that it cannot properly be held liable 

under § 75.1732(a). 

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V. DISCUSSION

Pursuant to Commission Rule 67(b), the Court may grant summary decision where the 

“entire record...shows: (1) [t]hat there is no genuine issue as to any material fact; and (2) [t]hat 

the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. §2700.67(b). 

The Commission has analogized its Rule 67 to Federal Rule of Civil Procedure 56, which 

authorizes summary judgments upon a proper showing of a lack of a genuine, triable issue of 

material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). Here, the 

parties have agreed that there is no genuine issue of material fact; indeed, they have submitted 

identical statements of the procedural and factual background relevant to this violation. Thus, 

summary decision is proper.

The disputed standard, § 75.1732(a) mandates that

[o]perators must equip continuous mining machines, except full-face continuous 

mining machines, with proximity detection systems by the following dates. For 

proximity detection systems with miner-wearable components, the mine operator 

must provide a miner-wearable component to be worn by each miner on the 

working section by the following dates.

30 C.F.R. § 75.1732(a). As noted above, the sole issue for resolution in this case is whether this 

standard mandates that operators both provide miner-wearable components to their miners and

ensure that miners actually wear the components. For the reasons that follow, I find that the 

standard unambiguously mandates that operators ensure miners wear miner-wearable 

components of proximity detection systems.

If a standard has a plain meaning, that meaning must be given effect unless it would lead 

to an absurd result or undermine the purpose of the Mine Act. RAG Shoshone Coal Corp., 26 

FMSHRC 75, 80 n.7 (Feb. 2004). To determine the meaning of a regulation, the Commission 

“utilizes ‘traditional tools of construction, including an examination of the text and intent of the 

drafters.’” Amax Coal Co., 19 FMSHRC 470, 474 (Mar. 1997) (quoting Local Union 1261, 

UMWA v. FMSHRC, 917 F.2d 42, 44–45 (D.C. Cir. 1990)). In a plain meaning analysis, the 

Commission “must look to the language and design of the Secretary's regulations as a whole. 

New Warwick Mining Co., 18 FMSHRC 1365, 1368 (Aug. 1996). If statutory language is 

ambiguous, “deference to the Secretary’s interpretation may be appropriate if the interpretation is 

reasonable, authoritative, and reflects fair and considered judgement.” Richmond Sand & Stone, 

LLC, 41 FMSHRC 402, 404 (Aug. 2019). However, as the Supreme Court recently clarified in 

Kisor v. Wilkie, courts should only resort to deference after carefully considering “the text, 

structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall 

back on.” 139 S. Ct. 2400, 2411 (2019).

In this case, the various tools of statutory interpretation necessitate finding that § 

75.1732(a) unambiguously requires that operators utilizing continuous mining machines 

equipped with proximity detection systems with miner-wearable components must actually 

ensure miners wear the components. First, the text of the regulation is clear, stating that “the 

mine operator must provide a miner-wearable component to be worn by each miner on the 

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working section.” 30 C.F.R. § 75.1732(a) (emphasis added). I agree with the Secretary:

“provide” is not the only part of the standard that places an obligation on operators. See

Secretary’s Reply to Respondent’s Motion for Summary Decision at 1. The phrase “to be worn"

is not superfluous, but rather extends the operators’ duty to ensuring that miners utilize the

provided miner-wearable components by actually wearing them. Any other reading would fail to 

give effect to each word and clause of the regulation. See, e.g. Canyon Fuel Co., LLC v. Sec'y of 

Labor, 894 F.3d 1279, 1289 (10th Cir. 2018).

The structure of § 75.1732 similarly supports this interpretation. Subsection (a), at issue 

here and excerpted above, directs operators to equip CMMs with proximity detection systems by

certain dates. For proximity detection systems with miner-wearable components, the minerwearable components must be provided by those dates, too. Subsection (a) thus signals that

proximity detection systems may come in multiple forms, but that some include miner-wearable 

components. When these components are present, they are a critical part of the proximity 

detection system. Subsection (b) confirms this, stating that “a proximity detection system

includes machine-mounted components and miner-wearable components.” Subsection (b) then

goes on to list specific requirements for the system, including that the system must cause a 

machine to stop tramming before contacting a miner. Subsection (c) sets out requirements for 

system checks, specifying when operators must ensure that the system is working properly. 

Lastly, subsection (d) obliges operators to create and retain certain records, including records of 

system checks, defects, and persons trained in the installation and maintenance of proximity 

detection systems. 

According to Gibson, subsections (c) and (d) of the standard show that MSHA’s intent 

was to require operators to provide miner-wearable components, check that they are operational, 

and record defects. Resp. Mot. at 9. Respondent argues that the whole of the section confirms 

that operators’ “duty does not extend to the actions or omissions of an individual miner during 

the course of their shift.” Id. at 9–10. I disagree. The standard requires operable proximity 

detection systems. And, in order for certain proximity detections systems to function properly, 

miners need to wear miner-wearable components while working on the working section of a 

mine. It is not enough that operators ensure the components are free of defects, or even ensure 

that miners are wearing the components at the start of every shift. The presence of minerwearable components on working miners is as crucial to the proximity detection system as the 

machine-mounted component on the CMM. It would be absurd to only require operators to 

ensure that half of the system is in use during a shift. Without both components in use, the 

system does not function. The structure of § 75.1732 plainly and unambiguously compels this 

understanding.

Finally, the history and expressed purpose of this regulation further demonstrate that the 

standard plainly requires operators to ensure that miners wear miner-wearable components 

during their shifts. The final rule codified at § 75.1732 was issued in January 2015. In the 

Federal Register notice announcing the rule, MSHA explained that a review of fatal and nonfatal 

pinning, crushing, and striking accidents in underground coal mines between 1984 and 2013 

demonstrated that proximity detection systems could have prevented 75 fatalities, 34 of which 

were associated with CMMs. Proximity Detection Systems for Continuous Mining Machines in 

Underground Coal Mines, 80 Fed. Reg. 2188, 2189 (Jan. 15, 2015). In addition, MSHA 

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estimated that 238 nonfatal injuries associated with CMMs could have been prevented by 

proximity detection systems. Id. In the final rule, after considering the comments on its 

proposed rule, MSHA determined that “all miners on a working section where the continuous 

mining machine is equipped with a proximity detection system must wear a wear a minerwearable component. Under the final rule, the mine operator must provide a miner-wearable

component to be worn by each miner on the working section.” Id. at 2190. This language is 

clear. Miners must wear the components, and operators must ensure that they do. The purpose 

of the regulation cannot be achieved otherwise. 

Gibson’s proffered interpretation of the standard would allow operators to take a handsoff approach to miner safety and subvert the core purpose of the Mine Act. The Mine Act and its 

implementing regulations do not aim to make safety merely an option to be made available to 

individual miners, as Gibson implies. See Resp. Mot. at 9–10. To the contrary, the statutory 

scheme aims, unequivocally, to protect the health and safety of the nation’s miners and

accordingly imposes strict liability on operators for violations. Safety standards, such as § 

75.1732(a), “must be interpreted so as to harmonize with and further . . . the objective[s]” of the 

Mine Act. Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984). 

Gibson’s interpretation simply cannot be squared with these objectives.

I find that 30 C.F.R. § 75.1732(a) is unambiguous: it plainly requires that operators not 

only provide miner-wearable components, but also that operators ensure miners actually wear the 

components. Accordingly, I find that Gibson violated the standard and uphold the violation.

VI. PENALTY

It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the 

Commission ALJ consider the six statutory penalty criteria:

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (3) whether the 

operator was negligent, (4) the effect on the operator’s ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation.

30 U.S.C. § 820(i).

According to the penalty petition, no violations of this standard became final orders of 

the Commission in the 15 months preceding the issuance of this citation. According to MSHA’s 

Mine Data Retrieval System website, Gibson produced 1,640,113 tons of coal in 2019, making it 

a fairly large operator. In the citation, Gibson’s negligence was determined to be low, and the 

parties stipulated that this was an accurate designation. Jt. Stip. #10. Based on the facts 

provided by the parties, I agree. The parties stipulated that the penalty amount would not affect 

Gibson’s ability to continue in business. Jt. Stip. #15. The parties have likewise stipulated that 

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“the failure to wear a miner-wearable component would be a significant and substantial 

contribution to the cause and effect of a mine safety hazard,” Jt. Stip. #8, that one miner was 

affected, Jt. Stip. #9, and that an injury caused by a failure of a proximity detection system to 

stop a CMM from contacting a miner is reasonably likely to result in a fatal injury. Jt. Stip. #7. I 

agree, and thus in assessing the penalty I considered the gravity as it’s recorded in the citation 

and stipulated to by the parties. Finally, the parties noted that Gibson ensured that every miner 

on the working section was wearing his miner-wearable component after the relevant accident 

occurred on May 2, 2019. Sec’y Mot. at 5–6; Resp. Mot. at 6 . Though Gibson asserts such 

behavior is not mandated by § 75.1732(a), I have taken this action into account as a 

demonstration of Gibson’s good faith concerning the safety of its miners. Applying the penalty 

criteria, I find that the proposed penalty of $832.00, as proposed by the Secretary, is appropriate 

for this violation.

VII. SETTLED CITATIONS

On December 23, 2019, Conference and Litigation Representative (CLR) Marsha Price 

filed a Motion to Approve Partial Settlement in this case. It is ORDERED that she be accepted 

to represent the Secretary in for the limited purpose of this partial settlement. See Cyprus 

Emerald Resources Corp., 16 FMSHRC 2359 (Nov. 1994).

The Secretary has filed a motion to approve settlement of five of the six citations at issue 

in this matter. The Secretary’s motion at paragraph five highlights “maximizing” the Secretary’s 

“prosecutorial impact” in agreeing to this settlement. Insofar as this statement, as well as other 

statements related to prosecutorial impact proffered by the Secretary, departs from Rule 31(b) 

and offers information that is superfluous to the Commission’s authority to approve settlements 

of Mine Act disputes, see 30 U.S.C. § 820(k), the statement is stricken from the Secretary’s 

motion pursuant to Commission Procedural Rule 1(b), 29 C.F.R. § 2700.1(b), and Rule 12(f) of 

the Federal Rules of Civil Procedure, Fed. Civ. P. 12(f). Under Commission Procedural Rule 

31(b), a motion to approve settlement “shall include . . . facts in support of the amount of penalty 

agreed to in settlement,” 29 C.F.R. § 2700.31(b)(1), and nothing in the Secretary’s statement on 

“prosecutorial impact” in any way lessens the burden of the parties to show that a settlement is 

justified by the facts and circumstances surrounding each individual compromise. 30 U.S.C. 

§ 820(k). The Secretary's insistence on larding settlement motions with unhelpful, extraneous 

language in no way changes the fact that it is the Commission that has independent “authority to 

assess all civil penalties provided in [the Mine] Act.” 30 U.S.C. § 820(i). 

I acknowledge and accept the explanation for the agreed upon settlement contained in 

the parties’ settlement motion and amendments. The originally assessed amount for these five 

citations was $5,620.00 and the proposed settlement is for $3,672.00. The parties agree to bear 

their own legal fees and costs associated with this matter, including costs which may be 

available under the Equal Access to Justice Act. The parties have moved to approve the 

proposed settlement as follows:

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Citation 

No.

Originally 

Proposed 

Assessment

Settlement 

Amount Modification

LAKE 2019-0329

9109786 $2,006.00 $902.00 Reduce Negligence from “Moderate” to “Low”

9109326 $558.00 $250.00 Reduce Likelihood of Injury from “Reasonably 

Likely” to “Unlikely,” Remove S&S Designation

9109631 $832.00 $666.00 Penalty Reduction Only

9109635 $372.00 $372.00 Affirm as Issued

9109636 $1,852.00 $1,482.00 Penalty Reduction Only

Total $5,620.00 $3,672.00

I have considered the representations and documentation submitted and I conclude that 

the proposed settlement is appropriate under the criteria set forth in section 110(i) of the Act. 

The motion to approve partial settlement is GRANTED, and five of the citations contained in 

this docket are MODIFIED as set forth above.

VIII. ORDER

For the reasons set forth above, I find that there is no dispute of material fact concerning 

Citation No. 9109632 and that the Secretary is entitled to summary decision as a matter of law. 

The Secretary’s motion for summary decision is GRANTED and Respondent’s motion for 

summary decision is DENIED. 

In accordance with this summary decision regarding Citation No. 9102632 and the partial 

settlement reached by the parties for the other citations contained in this docket, Gibson County 

Coal, LLC, is ORDERED to pay the Secretary of Labor the sum of $4,504.00 within 30 days of 

this order.4

David P. Simonton

Administrative Law Judge

4 Please pay penalties 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.

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Distribution: (Email5

)

Marsha Price, CLR, U.S. Department of Labor, MSHA, price.marsha@dol.gov

Edward V. Hartman, U.S. Depart of Labor, Office of the Solicitor, hartman.edward.v@dol.gov

Tyler H. Fields, Gibson County Coal LLC, tyler.fields@alrp.com

5 For the foreseeable future, Federal Mine Safety and Health Review Commission (FMSHRC) 

notices, decisions, and orders will be sent only through electronic mail. Because FMSHRC will 

not be monitoring incoming physical mail or faxes, parties are encouraged to submit all filings 

through the agency’s electronic filing system. If you are not able to file through our electronic 

filing system, please send an email copy and we will file it for you.

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