i 

April 2020 

TABLE OF CONTENTS 

COMMISSION ORDERS 

04-20-20 CEDAR LAKE MINING, INC. SE 2019-254 Page 305 

04-23-20 ASARCO LLC WEST 2019-529-M Page 308

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-29-20 GIBSON COUNTY COAL LLC LAKE 2019-0329 Page 313

ADMINISTRATIVE LAW JUDGE ORDERS 

04-14-20 SEC. OF LABOR O/B/O MICHAEL 

SALVO v. PILOT THOMAS 

LOGISTICS dba THOMAS 

PETROLEUM, LLC 

WEST 2020-0214-

DM 

Page 323
ii 

Review was granted in the following case during the month of April 2020: 

Secretary of Labor v. KC Transport, Inc., Docket No. WEVA 2019-458 (Judge Lewis, March 3, 

2020) 

No review was denied during the month of April 2020. 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 20, 2020 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

 

ORDER

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On September 24, 2019, the Commission received from Cedar 

Lake Mining, Inc. (“Cedar Lake”) a motion seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 

815(a). 

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on June 20, 2019, and became a 

final order of the Commission on July 20, 2019. Cedar Lake asserts that it timely contested three 

citations issued in connection with an accident that occurred on December 11, 2018 but that 

MSHA only designated two of the citations as having been timely filed. However, Cedar Lake

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 v. 

CEDAR LAKE MINING, INC. 

Docket No. SE 2019-254 

A.C. No. 01-03444-493538 

42 FMSHRC Page 305
provided signed Notices of Contest and certified mailing receipts that indicated that the contest 

was mailed to the Secretary a few days after the thirty-day deadline had passed. MSHA issued a 

delinquency notice to Cedar Lake on September 4, 2019, which led the operator to promptly seek 

to reopen this case. The Secretary does not oppose the request to reopen, but urges the operator 

to take steps to ensure that future penalty contests are timely filed. 

 Having reviewed Cedar Lake’s request and the Secretary’s response, we find that Cedar 

Lake missed the contest deadline by only a few days and that it promptly sought to have the case 

reopened upon discovering its mistake. In the interest of justice, we hereby reopen this matter 

and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the 

Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent 

with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the 

date of this order. See 29 C.F.R. § 2700.28. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 306
Distribution (e-mail): 

Rachel H. Cobble, Esq. 

robble@friedman-lawyers.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 307
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 23, 2020 

BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners 

 

ORDER

BY THE COMMISSION: 

 These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). On September 5, 2019, the Commission received from Asarco 

LLC (“Asarco”) a motion seeking to reopen two penalty assessments that had become final 

orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1

 Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

 We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to 

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also 

observed that default is a harsh remedy and that, if the defaulting party can make a showing of 

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment for WEST 2019-529-M was delivered on July 

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEST 2019-529-M and WEST 2019-530-M involving similar procedural 

issues. 29 C.F.R. §2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

ASARCO LLC 

Docket No. WEST 2019-529-M 

A.C. No. 02-00826-494853 

Docket No. WEST 2019-530-M 

A.C. No. 02-00826-497050 

42 FMSHRC Page 308
16, 2019, and became a final order of the Commission on August 15, 2019. MSHA records 

further indicate that the proposed assessment for WEST 2019-530-M was delivered on August 

12, 2019, and became a final order of the Commission on September 11, 2019.2

 Asarco states 

that it timely contested most of the citations at issue to the Commission on July 1, 2019. 3 The 

operator further asserts that, having mistakenly believed that the pendency of the contest 

proceedings obviated the need to respond to the proposed penalty, it failed to challenge the 

proposed penalty assessment. In addition, Asarco states that the employee responsible for filing 

contests with MSHA failed to contest four of the penalties because he was confused by the fact 

that MSHA had combined citations from multiple inspections in the proposed assessment in 

Docket No. WEST 2019-529-M. The Secretary does not oppose the request to reopen, but urges 

the operator to take steps to ensure that future penalty contests are timely filed. 

2

 At the time the motion to reopen was filed, the proposed assessment in WEST 2019-

530-M was not yet a final order of the Commission. There is no evidence in the record that the 

operator attempted to remedy the situation by filing a contest of the civil penalty, even after this 

fact was pointed out in the Secretary’s response. As the 30-day deadline for filing a contest has 

now expired, we entertain Asarco’s motion to reopen as properly filed. 

3

 These contest cases were docketed as Docket Nos. WEST 2019-388-RM; WEST 2019-

389-RM; WEST 2019-390-RM; WEST 2019-391-RM; WEST 2019-392-RM; WEST 2019-393-

RM; WEST 2019-394-RM; WEST 2019-395-RM; WEST 2019-396-RM; WEST 2019-397-RM; 

WEST 2019-398-RM; WEST 2019-399-RM; WEST 2019-400-RM; WEST 2019-401-RM; 

WEST 2019-402-RM; WEST 2019-403-RM; WEST 2019-404-RM; WEST 2019-405-RM; 

WEST 2019-406-RM; WEST 2019-407-RM; WEST 2019-408-RM; WEST 2019-409-RM; 

WEST 2019-410-RM; WEST 2019-411-RM; WEST 2019-412-RM; WEST 2019-417-RM; 

WEST 2019-418-RM; WEST 2019-419-RM; WEST 2019-420-RM; WEST 2019-421-RM; 

WEST 2019-422-RM; WEST 2019-423-RM; WEST 2019-424-RM; WEST 2019-425-RM; 

WEST 2019-426-RM; WEST 2019-427-RM; WEST 2019-428-RM; WEST 2019-429-RM; 

WEST 2019-430-RM; WEST 2019-431-RM; WEST 2019-432-RM; WEST 2019-433-RM; 

WEST 2019-434-RM; WEST 2019-435-RM; WEST 2019-436-RM; WEST 2019-437-RM; 

WEST 2019-438-RM; WEST 2019-439-RM; WEST 2019-440-RM; WEST 2019-441-RM; 

WEST 2019-442-RM; WEST 2019-443-RM; WEST 2019-444-RM; and WEST 2019-445-RM. 

On December 5, 2019 these cases were assigned to Judge Simonton, Judge Miller, and Judge 

Rae. The cases were dismissed as moot in orders issued on January 6, 2020, December 12, 2019, 

and February 5, 2020, respectively. Asarco did not move to reopen the aforementioned contest 

proceedings. 

42 FMSHRC Page 309
 Having reviewed Asarco’s request and the Secretary’s response, we find that the operator 

clearly expressed its intent to contest the citations by initiating contest proceedings with the 

Commission and that Asarco’s failure to timely file a contest with MSHA was due to 

inadvertence or mistake within the meaning of Rule 60(b)(1). Moreover, Asarco took prompt 

action to file a motion to reopen after the citations became final orders of the Commission. In the 

interest of justice, we hereby reopen these matters and remand them to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural 

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a 

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 

2700.28. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 310
Distribution (e-mail): 

Donna Vetrano Pryor, Esq. 

Husch Blackwell LLP 

donna.pryor@huschblackwell.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 311

ADMINISTRATIVE LAW JUDGE DECISIONS
42 FMSHRC Page 312
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 

42 FMSHRC Page 313
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). 

42 FMSHRC Page 314
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. 

42 FMSHRC Page 315
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). 

42 FMSHRC Page 316
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 

42 FMSHRC Page 317
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 

42 FMSHRC Page 318
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 miner-wearable 

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 “the failure 

42 FMSHRC Page 319
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: 

42 FMSHRC Page 320
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

 /s/ David P. Simonton 

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. 

42 FMSHRC Page 321
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. 

42 FMSHRC Page 322
ADMINISTRATIVE LAW JUDGE ORDERS

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 14, 2020 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) obo 

MICHAEL SALVO, 

 

Complainant, 

 v. 

PILOT THOMAS LOGISTICS dba 

THOMAS PETROLEUM, LLC, 

 Respondent. 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEST 2020-0214-DM 

MSHA Case No. WE MD 20-05 

Mine: Goldstrike Mine 

Mine ID: 26-01089 (A2612) 

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT

Before: Judge Gill 

 This case involves an Application for Temporary Reinstatement filed by the Secretary of 

Labor (Secretary) on behalf of complainant, Michael Salvo, against Respondent, Pilot Thomas 

Logistics dba Thomas Petroleum, LLC, pursuant to section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c)(2). On April 8, 2020, the parties submitted a Joint 

Motion for Temporary Economic Reinstatement that included the individual terms of the 

settlement. 

Pursuant to the terms of the Joint Motion, the parties move for an order that would 

temporarily, economically reinstate Salvo during the investigation and litigation of the merits of 

Salvo’s February 14, 2020, discrimination complaint by the Mine Safety and Health 

Administration (MSHA). Specifically, the parties agree that Salvo’s temporary reinstatement 

shall be subject to the following terms and conditions: 

(1) The Secretary asserts that the complaint of discrimination filed by Complainant Michael 

Salvo under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act”) was not frivolously brought. 

(2) Without admitting that Mr. Salvo’s complaint was not frivolously brought, Respondent 

agrees to the entry of an Order of Temporary Economic Reinstatement pending 

investigation of the merits of Mr. Salvo’s discrimination complaint to the Mine Safety 

and Health Administration and the completion of any subsequent litigation on a 

complaint filed by the Secretary of Labor regarding Mr. Salvo’s discrimination 

complaint.

42 FMSHRC Page 323
(3) The parties agree that, due to the distances involved and the need for quick action in this 

matter electronic signatures or electronically scanned signatures shall be deemed valid. 

(4) Respondent agrees to economically reinstate Mr. Salvo to his position as an 

equipment/haul truck operator, effective upon the approval of this Settlement and Order 

Granting Temporary Economic Reinstatement by a Federal Mine Safety and Health 

Review Commission (“Commission”) Administrative Law Judge (“ALJ”). Respondent 

agrees to pay Mr. Salvo a gross pay of $1,579.29 per pay period subject to normal 

deductions. 

(5) Respondent shall provide benefits (including but not limited to retirement plan and 

seniority accrual) associated with Mr. Salvo’s employment, in which he participated or 

was a beneficiary and consistent with those provided pre-termination except for health 

insurance. Respondent may deduct all applicable tax withholdings and other withholdings 

on the same basis as generally required for payment of other benefits pursuant to its 

policies and practices applicable to other employees. 

(6) The first payment shall be due to Mr. Salvo on Respondent’s first regular weekly pay day 

after the date of approval of this Settlement Agreement by an ALJ. All subsequent 

payments shall be due on Respondent’s regular weekly pay days. All payments shall be 

made by regular payroll or certified check to “Michael Salvo” and deposited directly into 

Mr. Salvo’s bank account as Respondent did pre-termination. 

(7) Respondent agrees to continue its practice of not providing job references and potential 

employers will be provided standard dates of employment and job title. 

(8) Mr. Salvo’s economic temporary reinstatement shall terminate upon a finding by the 

Secretary that Section 105(c)(1) of the Mine Act has not been violated, or if the 

investigation or discrimination proceeding is otherwise discontinued for any reason that 

is permitted under the Act and its regulations. Alternatively, if the Secretary finds that the 

discrimination complaint has merit and the Secretary files a Complaint of Discrimination 

pursuant to Section 105(c)(2) with the Commission, Mr. Salvo’s economic temporary 

reinstatement shall expire only after any decision or other similar order on such 

Complaint from the Federal Mine Safety and Health Review Commission becomes a 

final order that is not appealed by the Secretary or Respondent. 

(9) Mr. Salvo understands and agrees that he is not entitled to request or collect any 

unemployment compensation benefits during the economic temporary reinstatement 

period. 

(10) The Secretary represents that the terms of this Settlement Agreement and Joint Motion 

for Temporary Economic Reinstatement have been conveyed to Mr. Salvo, who has 

agreed to the terms of the economic temporary reinstatement. 

(11) The parties further agree that by entering into a settlement agreement of the temporary 

reinstatement proceeding, in which the standard of review is limited, Respondent reserves 

42 FMSHRC Page 324
all rights, including all legal and factual defenses it has to the substantive Section 105(c) 

complaint, and that none are waived. By agreeing to economic temporary reinstatement 

of Mr. Salvo, Respondent does not concede in any way the merits of Mr. Salvo’s claims 

and nothing herein shall be construed as an admission of liability by the Respondent. 

Further this agreement may not be relied upon by either party for any reason other than to 

enforce its terms during the pendency of the temporary reinstatement order. 

I have reviewed the Joint Motion and determined that it reflects a clear meeting of the 

minds on the issue of temporary economic reinstatement, as required by Commission precedent. 

I have further determined that the parties’ agreement is consistent with the purposes of the Act 

and Section 110(i) of the Act. Upon consideration of the foregoing, the Joint Motion for 

Temporary Economic Reinstatement is GRANTED. 

Accordingly, pursuant to the terms of the parties’ agreement, Respondent is ORDERED 

to economically reinstate Michael Salvo, as specified in the Joint Motion, as approved herein. 

The parties are FURTHER ORDERED to comply with all of the individual provisions the 

parties agreed upon and included in the Joint Motion. 

 As set forth in the parties’ Joint Motion, this Order Granting Temporary Economic 

Reinstatement is not open-ended. If MSHA determines that there is insufficient evidence to 

proceed on Salvo’s discrimination complaint, this order will terminate on the date of MSHA’s 

determination. See N. Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 744-46 (6th Cir. 2012); 

Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 297, 309 (7th Cir. 2012). Otherwise, it will 

end upon final order on the underlying discrimination complaint. 30 U.S.C. § 815(c)(2). 

Therefore, the Secretary must promptly determine whether or not he will file a complaint with 

the Commission under section 105(c)(2) of the Act and so advise the Respondent and this 

tribunal. 

 /s/ L. Zane Gill 

 L. Zane Gill 

 Administrative Law Judge 

Distribution: 

Michael Salvo, 1320 Amber Way, Elko, NV 89801 blue472@yahoo.com 

Jessica M. Flores, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th St, Ste 3-700, 

San Francisco, CA 94103 flores.jessica@dol.gov 

David L. Zwisler, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2000 S Colorado Blvd, 

Tower 3, Ste 900, Denver, CO 80222 david.zwisler@ogletree.com 

/kb 

42 FMSHRC Page 325