Secretary of Labor v. Beylund Construction, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Beylund Construction operated a small scoria pit and crusher in North Dakota and admitted 18 violations involving guarding, electrical safety, training, filings, and other mine requirements. The company argued that MSHA lacked jurisdiction when the crusher was not running and objected to warrantless inspection. Judge Margaret A. Miller rejected those arguments because mineral extraction, crushing, equipment, and miners remained covered by the Mine Act even when equipment was idle. She affirmed every citation and order. Because Beylund had tried to avoid inspection, failed to timely abate eight violations, and still had not completed required training, she increased the total penalty from $4,059 to $4,177.

Decision snapshot

• Key standards: 30 C.F.R. §§ 46.3, 46.5(a), 46.6(a), 56.12028, 56.12030, and 56.14107(a)
• Outcome: All 18 violations were affirmed and a total civil penalty of $4,177 was assessed.
• Key point: A mine and its available equipment remain subject to MSHA inspection and safety standards even when the crusher is not operating at the moment inspectors arrive.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

November 23, 2009

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

BEYLUND CONSTRUCTION, INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. CENT 2008-721-M

A.C. No. 32-00837-159178-01

Docket No. CENT 2008-722-M

A.C. No. 32-00837-159178-02

Mine: Crusher

DECISION

Appearances: Ronald Goldade, Conference and Litigation Representative, U.S. Dept. of Labor,
Denver, Colorado on behalf of Petitioner.

Steve Beylund, President, Beylund Construction Inc.,

Bowman, North Dakota on behalf of Respondent. 

Before:           Judge Miller

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), Mine Safety and Health Administration (“MSHA”) pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (the
“Act”), charging Beylund Construction, Inc. (“Beylund”) with a total of 18 violations of
mandatory standards and proposing penalties totaling $4,059 for those violations. The general
issue before me is whether Beylund violated the cited standards, and if so, what is the appropriate
civil penalty to assess in accordance with section 110(i) of the Act.

Beylund operates a scoria pit and crusher at its location in Ward County, North Dakota.
The parties submitted signed joint stipulations in which they agreed that, among other things, the
operation is a “mine” as defined by the Act, that the mine affects interstate commerce, that all
persons working at the crusher are “miners” within the meaning of the Act, and that the
Commission has jurisdiction to hear this case.

Prior to the hearing, the parties initiated a conference call with the Court. Mr. Steve
Beylund represented Beylund Construction, and the Secretary was represented by a Conference
and Litigation Representative (“CLR”). Mr. Beylund explained during the call that he preferred
for the Secretary to put on her case without him present, and suggested that he show up later for
an hour to explain his side. He further explained that he didn’t have a quarrel with the citations
that were issued, but wanted his day in court to protest the fact that MSHA was able to come
onto his property over his objection. I explained the purpose of the hearing to Mr. Beylund and
instructed him to bring any documents or photographs that he believed would help explain his
position, including any financial documents if he thought that his ability to pay the civil penalties
was an issue.

At the outset of the hearing, Mr. Beylund again expressed his position that he had no real
issue with the violations as issued by the MSHA inspector. The parties signed and submitted a
stipulation that included provisions admitting that each violation occurred as set forth in the
citation. (Tr. 8, Ex. 27). When questioned, Mr. Beylund was unclear about what he had signed
and about what he intended to explain to the Court. Therefore, it was determined that the
Secretary’s witness, MSHA inspector Shane Julien, would testify as to each violation and Mr.
Beylund would then have the opportunity to ask questions and respond. During the course of the
hearing, Mr. Beylund once again stated that he admitted the violations and did not want to
proceed through each of the 18 citations that were issued, and instead preferred to use his time to
voice his dissatisfaction with MSHA. (Tr. 76-77).

Findings of Fact

Beylund Construction, Inc. operates a scoria pit and crusher in remote North Dakota. In
2007 an MSHA inspector discovered the Beylund pit and crusher operation after noticing a
number of Beylund trucks hauling material near Bowman, North Dakota. Because no one was
present at the mine, the inspector left his business card on the fence. (Tr. 19). In January 2008,
Mr. Beylund called the MSHA office in Rapid City, South Dakota. The office supervisor,
Inspector James Weisbeck, testified that he spoke with Mr. Beylund on the phone and explained
the MSHA requirements at that time. (Tr. 19-21).

Inspector Weisbeck informed Mr. Beylund of, among other things, what MSHA had to
offer to small operators, the purpose of MSHA, how inspections worked, and who was subject to
the Mine Act. Further, Weisbeck offered to conduct a courtesy inspection at the mine and help
Beylund come into compliance with MSHA regulations. Mr. Beylund refused the offer and
replied that he wanted nothing to do with MSHA or its inspectors. (Tr. 22-24, 82).

Several months after the conversation between Weisbeck and Beylund, MSHA Inspector
Shane Julien returned to the Beylund scoria pit. The Beylund operation, as observed by the
inspector, consists of a surface scoria pit, crusher plant, dozer, back hoe, excavator, haul trucks
and other heavy equipment. (Tr. 42). On the day of Julien’s visit, there were three employees
working at the operation, including Mr. Beylund and his son. Julien testified that he “observed
that the mine was loading trucks, doing maintenance, [and] cleaning up around the operation.”
(Tr. 32-33).

As inspector Julien and an MSHA inspector trainee were entering the mine site, they
encountered a pickup truck carrying Mr. Beylund, his son, and another Beylund employee. (Tr.
35, 43). The inspectors explained the MSHA inspection scheme and the right of the inspectors
to enter the mine to conduct an inspection. Mr. Beylund was not welcoming. He raised his voice
and told the inspectors that the mine had been sold and they could not conduct an inspection.
Again, the inspector explained the Mine Act and the inspector’s right to be on the property, but
Mr. Beylund denied them entry. (Tr. 36, 39). The inspectors left, traveled a short distance down
the road, and stopped to call the MSHA field office about the denial of entry. Shortly thereafter,
Mr. Beylund approached the inspectors, acknowledged that his lawyer had informed him that
MSHA could enter without a warrant, and told the inspectors they could return to the mine and
inspect. (Tr. 36-37).

The inspectors returned to the mine and conducted a regular inspection of the pit and the
crusher operation. They took notes and photographs of each violation and explained them to Mr.
Beylund during the close out conference. The inspectors observed the scoria pit, the crusher, an
excavator, dozers, back hoe, and several trucks. It appeared that the mine crushed the scoria for
several days at a time, and then loaded it on the haul trucks to be delivered. The inspectors
discovered that Mr. Beylund, his son, and one other employee did the bulk of the work at the pit
and the crusher. As a result of the inspection, sixteen citations and two orders were issued,
including citations for failing to properly guard equipment, failure to file a mine identification,
and failure to train any person who worked at the mine. (Tr. 42). Subsequently MSHA issued
eight 104(b) orders for failure to abate a number of the violations in a timely manner. At the
time of the hearing, one citation, number 6327959 citing a violation of 30 C.F.R § 46.5(a) was
not abated. The citation was issued because “[t]wo miners, Steve Beylund and Michael Beylund,
had not received the MSHA required 24 hour new miner training within 90 days after beginning
work at the mine.” (Ex. 10).

As indicated above, Mr. Beylund had no quarrel with the violations as issued but used the
opportunity to tell the Court about his experience with MSHA and his difficulty with the
inspection. At one point during his testimony Mr. Beylund acknowledged that he had operated
the pit and the crusher for at least three years. At another point, he attributed a longer operational
time frame for the pit and crusher. Mr. Beylund was not consistent in his testimony and I
question his credibility. Since Mr. Beylund agreed that the violations as issued are correct, I will
not address each citation. Instead, I will briefly address Mr. Beylund’s arguments regarding
jurisdiction and the amount of penalty to be assessed for each violation.

Conclusions of Law

Mr. Beylund first argues that he didn’t understand the law and therefore cannot be found
“guilty” of these violations. He declared a number of times that he’s not a criminal, and did
nothing wrong. (Tr. 84). At the same time, Mr. Beylund argued that if the mine doesn’t size the
material “then he is home free.” In other words, on one hand, he said he didn’t understand the
law, while on the other, he argues that if the crusher is not in operation, he does not have to
comply with the law. (Tr. 85, 91). I find that while Mr. Beylund may not have been familiar
with all MSHA standards, he was certainly aware that he could be subject to MSHA regulation.
His view is, if MSHA does not catch him, then he is not subject to the law. Mr. Beylund cannot
plead ignorance of the law while at the same time trying to avoid it, or develop his own theory
about when he does and does not have to comply. Further, MSHA supervisor James Weisbeck
had told Mr. Beylund at least six months prior to the inspection that Beylund was subject to
MSHA regulation. If he was not aware of the law for the three or more years while he was
operating, he certainly became aware six months before the inspection when he was offered
assistance to come into compliance. Beylund’s response to the offer of assistance by Supervisor
Weisbeck was that he didn’t want anything to do with MSHA and that MSHA could “catch [him]
if [it] can.” (Tr. 19).

Mr. Beylund made no effort to learn the law, but instead did everything he could to avoid
it. His lack of specific knowledge and his actions to avoid MSHA do not excuse the violations.
First, as a general matter, the Mine Act is a strict liability statute. As such, the Mine Act assesses
liability without regard to the individual operator’s fault. International Union, UMWA v.
FMSHRC, 840 F.2d 77, 83 (D.C. Cir. 1988). However, fault may be considered in setting the
level of the civil penalties by considering whether the operator was negligent. 30 C.F.R. § 100.3.
When a person operates a mine, it is his duty, at a minimum, to make an inquiry regarding his
status and the safety standards he is expected to meet.

Beylund’s next argument, that MSHA should not have the right to enter the property
without a warrant, also fails. (Tr. 88). It is well established that MSHA can and must enter any
mine to conduct the inspections required by the Act. The Act provides for such entry. 30 U.S.C.
§ 813. Safety concerns and enforcement needs justify warrantless inspections of mines.
Marshall v. Texoline Company, 612 F.2d 935 (5th Cir. 1980). While Mr. Beylund did not like
the fact that MSHA had the right to enter his property without a warrant, he agreed, after
speaking to his attorney, that the law gives that right to the MSHA inspectors. He presented no
legal reason for his argument regarding the warrantless search except to say that the government
should not have such a right.

The primary thrust of Beylund’s defense is that MSHA has no jurisdiction over the pit
and crusher operations, unless the plant is in operation at the time the inspectors arrive. (Tr. 88).
Mr. Beylund maintains that if he operates the crusher, and MSHA does not catch him operating,
then he cannot be issued any citations. Consequently, he was operating on Saturdays and
Sundays in order to avoid an MSHA inspection. (Tr. 83). The Secretary argues that the
extraction of scoria and operation of the crusher brings the facility within the Act’s definition of
a mine, and therefore the equipment, facilities, and employees are all subject to MSHA’s
jurisdiction.

Beylund commenced crushing operations at this site at least three years ago. (Tr. 27).
Beylund did not request a mine identification or seek to come into compliance with MSHA
regulations at start up. The scoria pit operated for a number of years without MSHA notice and
Mr. Beylund admits that he often operated on Saturdays and Sundays because he knew that
MSHA inspectors did not work on those days. Mr. Beylund urges the Court to vacate the
citations that were issued because the mine was not sizing rock, and therefore was not operating
at the time the inspectors arrived. He averred that MSHA would have to catch him operating
and believed that until it did, it could not inspect the premises. He did not argue that his
operation was outside of MSHA jurisdiction, but simply that jurisdiction only applied if the pit
and crusher were in operation.     

The legislative history of the Act makes clear that Congress intended that the Act’s
coverage provisions be interpreted broadly. The Senate Committee report emphasized that “what
is considered to be a mine and to be regulated under this Act [should] be given the broadest
possible interpretation, and . . . doubts [should] be resolved in favor of inclusion of a facility
within the coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 602 (1978). The Commission and the courts have recognized this broad
Congressional intent and have applied the Act’s provisions to a wide variety of mining
operations, including mining and crushing facilities similar to those at Beylund’s site. Marshall
v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3rd Cir. 1979) (facilities for processing of
material dredged from a river bed were within the Act’s definition of the term “coal or other
mine”); W.J. Bokus Ind., 16 FMSHRC 704 (Apr. 1994) (equipment in garage used by both the
operator’s sand and gravel mine and asphalt plant is subject to the Mine Act’s jurisdiction);
Marshall v. Cedar Lake Sand and Gravel Co., Inc., 480 F.Supp. 171 (E.D. Wisc. 1979) (pit from
which sand and gravel are removed falls squarely within the Act’s definition of a mine);
Marshall v. Gilliam, 462 F.Supp. 133 (E.D. Mo. 1978). A small, family-run gravel business was
held to be a mine and MSHA’s jurisdiction to inspect and enforce the Act was upheld as to a
gravel pit, screening plant and equipment used, or that had been used, in the operation. Jeppesen
Gravel, 30 FMSHRC 324 (Apr. 2008) (ALJ).

Several aspects of Beylund’s operation clearly fall within the Act’s definition of a mine.
The removal of scoria from its natural deposits in the pit, crushing and sizing the rock, and
transporting the rock, all constitute mining. (Tr. 42, 90). Mr. Beylund, his son, and another
employee extracted minerals from the pit, crushed the rock, and then loaded the rock onto the
haul trucks. Beylund maintained and repaired mining equipment, including a dozer, back hoe
and crusher. Whether specific items that were cited, such as gas cans or oxygen cylinders, were
actually used in mining activities, the presence of those items in the area where miners worked
mandated that Beylund comply with MSHA’s regulations. W.J. Bokus Ind., 16 FMSHRC at 708-709; Marshall v. Gilliam, 462 F.Supp. at 135.

While the crusher is only operated on an “as needed” basis, it was evident that it had
recently been operated and that the pile of scoria recently crushed was being loaded onto the
trucks and transported. The site was being cleaned up from the most recent crushing operation.
(Tr. 42). Equipment and facilities that are available for use by miners must be maintained in
compliance with applicable safety standards, and are subject to inspections whether or not they
are actually being used at the time. See, e.g., Ideal Basic Ind., Cement Div., 3 FMSHRC 843
(Apr. 1981) (equipment located in a normal work area and capable of being used must be in
compliance with safety standards).                 

I further find that additional factors buttress MSHA’s assertion of jurisdiction. First,
when resolving jurisdictional questions of this sort, the benefit of the doubt goes to the Secretary.
As the Commission stated in Watkins Eng’rs & Constructors, “Congress clearly intended that . . .
jurisdictional doubts be resolved in favor of coverage by the Mine Act. 24 FMSHRC at 675-676
(citing S. Rep. No. 95-181, at 14 (1977) reprinted in Senate Subcomm. On Labor, Comm. On
Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602
(1978)).

A second related factor is that the courts and, by implication, the Commission and its
judges, have been reluctant to second guess the Secretary when she makes choices involving
MSHA and OSHA coverage. She is the one whose duty it is to administer the acts, and when, in
the course of her administration, she makes informed and reasoned jurisdictional determinations,
judicial decision makers have been wary of overruling her. See Watkins Eng’rs & Constructors,
24 FMSHRC at 672-673, 676.

For all of these reasons, Beylund’s challenge to MSHA jurisdiction must fail. Finding no
merit to any of the defenses raised by Beylund, the citations are affirmed as issued.

Penalty

I conclude that the penalties initially proposed by the Secretary would not adequately
effectuate “the deterrent” purpose underlying the Act’s penalty assessment scheme. Sellersburg
Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). I reach this
decision based upon my conclusion that Beylund did everything it could to avoid MSHA
inspection, and for years operated on days Mr. Beylund felt MSHA would not find the crusher in
operation. In addition, Mr. Beylund suffered life-threatening injuries when he fell from the
crusher and the same could have easily been the fate of other employees. Yet, he failed to abate
the citations as required, and, as of the date of hearing, he and his son had not received the
training necessary to operate the crusher and equipment safely.

The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to
the Secretary. 30 U.S.C. 815(a) and 820(a). Thus, when an operator notifies the Secretary that it
intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29
C.F.R. § 2700.28. The Act requires, that “[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider” 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).

In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg, 5 FMSHRC at 292.
Once findings on the statutory criteria have been made, a judge’s penalty assessment for a
particular violation is an exercise of discretion, which is “bounded by proper consideration of the
statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000).

While I find no reason to question the degree of negligence and gravity assessed by the
inspector and used by the Secretary in proposing the penalties in these two cases, I do, however,
question Mr. Beylund’s good faith abatement. Eight of the original eighteen violations were not
abated within the time required by the citations. The most troublesome failure to abate concerns
the training of employees at the mine. Training is so important to the safe operation of the mine
and the serious injuries sustained by Beylund might have been avoided if he had been properly
trained. The fact that a large number of citations were not abated in a timely manner, that most
of the violations could have easily been abated within the time set, and that the training citation
remains unabated, all weigh heavily on the determination of the increased penalties for those
violations.

Beylund is a small operator and agreed that the penalties as assessed would not interfere
with its ability to continue in business. Since Beylund had not been inspected prior to June,
2008, it has no history of violations. I find the following penalties appropriate in this
circumstance.

Citation/

Order# 

Standard

Reason for
Change

S&S

Assessed
Penalty

Final

Penalty

6327943 

41.11(a)

None

N

$100

$100

6327948

56.14107(a)

None

Y

$270

$270

6327949

56.12030

Failure to abate

Y

$270

$300

6327956

56.12028

None

Y

$270

$270

6327959

46.5(a)

Failure to abate

Y

$971

$1,000

6327960

46.6(a)

None

Y

$897

$897

6327944

56.12008

Failure to abate

N

$112

$120

6327945

56.11003

Failure to abate

N

$112

$120

6327946

56.14107A

Failure to abate

Y

$121

$140

6327947

56.12008

Failure to abate

N

$112

$120

6327950

56.14107A

None

N

$100

$100

6327951

56.16006

Failure to abate

N

$112

$120

6327952

56.4203

None

N

$100

$100

6327953

56.14132A

Failure to abate

N

$112

$120

6327954

56.18010

None

N

$100

$100

6327955

47.31A

None

N

$100

$100

6327957

50.30

None

N

$100

$100

6327958

46.3

None

N

$100

$100

Total

$4,059

4,177

Consistent with this decision, it is ORDERED that Beylund Construction Inc., pay a total
civil penalty of $4,177 for the 18 violations contained in these dockets. Such payment shall be
made within 30 days of the date of this decision.

Margaret A. Miller

Administrative Law Judge

Distribution:

Ron Goldade, Conference and Litigation Representative, U.S. Dept. of Labor, MSHA

P.O. Box 256367, DFC, Denver, CO 80225-0367 (via Certified Mail) 

Steve Beylund, President, Beylund Construction Inc. 824 3rd Avenue, NE

Bowman, ND 58623-4822 (via Certified Mail)