Secretary of Labor, MSHA v. Miller Springs Material, LLC

Plain-English summary

Miller Springs had stopped crushing at Cove Quarry while its crusher was under repair, but it continued filling customer orders from existing stockpiles. MSHA cited the company for failing to report the quarry as closed under section 56.1000. Judge Jerold Feldman held that intermittent loading at the same site where material was extracted and crushed remained part of the mining process and remained subject to MSHA inspection. Treating the quarry as closed would also remove oversight of mobile equipment and stockpile safety while work continued. The company's summary-decision motion was granted, and the citation and proposed $100 penalty were vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.1000
• Outcome: Miller Springs received summary decision, Citation No. 8628189 was vacated, and the penalty proceeding was dismissed.
• Key point: A quarry that intermittently loads customer orders from its own stockpile is not closed for MSHA reporting purposes merely because extraction and crushing have paused.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

February 19,
2014

SECRETARY
OF LABOR

��MINE
SAFETY AND HEALTH���

��ADMINISTRATION
(MSHA),

����������������������� ��
Petitioner

����������������������� v.

MILLER
SPRINGS MATERIAL, L.L.C.,

����������������������� ��
Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. CENT 2012-906-M

A.C.
No. 41-04510-298298

Mine:
Cove Quarry

�����������

ORDER GRANTING
RESPONDENT�S

CROSS-MOTION FOR
SUMMARY DECISION

Before:����������������������� Judge
Feldman

����������� This
case is before me upon a petition for assessment of a civil penalty filed by
the Secretary of Labor (�the Secretary�) against the Respondent, Miller Springs
Material, LLC (�Miller Springs�), pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended. 30 U.S.C. � 815(d). This matter
concerns Citation No. 8628189, the single citation at issue, which alleges a
violation of 30 C.F.R. � 56.1000. This mandatory reporting standard states in
relevant part that �when any mine is closed, the person in charge shall notify
the nearest [Mine Safety and Health Administration (�MSHA�)] district office .
. . and indicate whether the closure is temporary or permanent.� The Secretary
seeks to impose a $100.00 civil penalty for Citation No. 8628189. The Secretary
has filed a Motion for Summary Decision in this matter. Relying solely on joint
stipulations, Miller Springs opposes the Secretary�s Motion.

����������� Cove
Quarry, the subject site in this proceeding, is a crushed limestone, rock and
gravel facility. (Jt. Stip. 2). The question presented is whether a mine may be
deemed to be �closed� pursuant to section 56.1000 during a period in which the
Secretary concedes Miller Springs periodically continued to fill orders from an
existing stockpile in response to the needs of its customers. (See Jt.
Stip. 13). The Secretary argues that the mine must be considered closed because
there were no ongoing production-related activities. (Sec�y Mot. at 4-5). ��

I.                  
Background

����������� On
January 11, 2012, Miller Springs notified MSHA�s San Antonio field office that the
Cove Quarry mine was on intermittent, producing status. (Jt. Stip. 12). On June
28, 2012, MSHA Inspector Homer Pricer arrived at Cove Quarry to conduct an
inspection. At that time, he found no mine personnel or production activities
at the site. (Jt. Stip. 10). Pricer contacted the plant manager, who informed
him that production had stopped in December 2011, although

orders
were continuing to be filled from existing stockpiles throughout 2012. (Stip.
13 of Ex. 2, Declaration of Inspector Pricer; Jt. Stip. 13). Based on
his observation of a lack of activity at the mine, and on the information he
received from the plant manager that the crusher had been removed for repairs
since December 2011 although intermittent loading activities had continued, Pricer
concluded that Miller Springs had violated the reporting requirements of
section 56.1000 because it had failed to notify the MSHA district office that
the mine was closed. (Jt. Stip. 10, 15). The alleged failure to report was
designated as non-significant and substantial, and attributable to a low degree
of negligence.

����������� On
December 6, 2013, the Secretary filed a Motion for Summary Decision, with joint
stipulations of material fact. On January 7, 2014, Miller Springs represented
by email that it did not oppose disposition by summary decision, although it
declined to file a brief in opposition to the Secretary�s Motion for Summary
Decision. I construe Miller Springs� acquiescence to disposition by summary
decision as a Cross-Motion for Summary Decision.

As discussed below, the Secretary�s
assertion that a mine is deemed closed despite ongoing stockpile operations is
inconsistent with analogous ALJ Decisions concerning the substantive
significance of loading activities. In addition, the Secretary�s apparent
willingness to relinquish MSHA oversight of stockpile loading activities is
contrary to the authority delegated to MSHA to conduct inspections to ensure
that mobile loading equipment and stockpiles are maintained in safe condition. Accordingly,
the Respondent�s Cross-Motion for Summary Decision shall be granted. Consequently,
Citation No. 8628189 shall be vacated.

II.               
Joint
Stipulations

����������� The parties have
stipulated to the following facts for purposes of summary decision:

1.      Miller Springs
Materials LLC (�Respondent�) owns and operates the

Cove Quarry (Mine ID 41-04510) in Kempner, Texas (�the Mine�).

2.      The Mine is a
crushed limestone, rock, and gravel operation.

3.      Respondent is
engaged in mining operations in the United States and the company�s operations
affect interstate commerce.

4.      The Mine is
subject to the Federal Mine Safety and Health Act of 1977 (�The Act�), 30
U.S.C. � 801 et seq.

5.      The Mine is
subject to regulation by the Mine Safety and Health Administration (�MSHA�).

6.      The Federal Mine
Safety and Health Review Commission has jurisdiction over the Mine, the parties
and the subject matter of this proceeding.

7.      The proposed
penalty will not affect Respondent�s ability to continue to do business.

8.      Respondent
demonstrated good faith in abating the cited conditions.

9.      MSHA Inspector
Homer Pricer (�Inspector Pricer�) was acting as an authorized representative of
the Secretary of Labor (�Secretary�) at the time of the inspection at issue in
this case.

10.  On June 28,
2012, Inspector Pricer arrived at the Mine to conduct a regular E01 inspection.
There were no mine personnel or production activities on site.

11.  Inspector Pricer
instead conducted an E16 inspection.

12.  On January 11,
2012, Respondent notified the San Antonio field office that the Mine was on
intermittent, producing status.

13.  Respondent
filled orders at the Mine from the existing stockpile of material throughout
2012.

14.  Inspector Pricer
Issued Citation No. 8628189 for a violation of 30 C.F.R.

� 56.1000.

15.  Citation No.
8628189 states:

The mine operator failed to notify the
nearest District, Sub district, or Field Office of the Mine Safety and Health
Administration of their intent to close (permanently or temporarily) the mine. Plant
Manager stated that the crusher which had been moved for repairs has not
operated at this location since December 2011. Failure to notify MSHA of the
mine status is a violation of a mandatory standard.

16.  Respondent
terminated the citation by notifying MSHA on June 28, 2012 of its non-producing
status.

(Jt.
Stip. 1-16) (emphasis added).

III.            
Procedural
Framework

����������� Disposition
by summary decision is appropriate provided the entire record establishes that
there is no genuine issue as to any material fact, and that the moving party is
entitled to summary decision as a matter of law. 29 C.F.R. � 2700.67(b). See,
Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp.
v. Catrett, 477 U.S. 317, 327 (1986).

����������� The
parties agree that no material facts remain at issue in this matter. Section
56.1000 requires that operators notify the nearest MSHA office when a mine
closes. It is uncontested that at the time of the June 28, 2012, inspection,
the Cove Quarry Mine was on record with MSHA�s San Antonio office as
�intermittent, producing� rather than �closed.� (Jt. Stip. 12). It is also
uncontested that, although no production activities were occurring on site on
June 28, 2012,

Miller Springs
continued to fill customer orders from a stockpile at the Cove Quarry Mine
throughout 2012.[1]
(Jt. Stip. 10, 13). As noted above, the issue to be resolved is whether a mine is
properly deemed �closed� when the only activity occurring on-site is loading
from a stockpile.

IV.            
Discussion and Evaluation

The operative language in section
56.1000 requires mine operators to notify MSHA �when any mine is closed.� The
Commission has recognized:

�When the meaning of the language of a statute
or regulation is plain, the statute or regulation must be interpreted according
to its terms, the ordinary meaning of its words prevails, and it cannot be
expanded beyond its plain meaning.� Western Fuels-Utah, Inc.,

11 FMSHRC 278, 283 (Mar. 1989); Consolidation
Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle

of statutory and regulatory
interpretation that words that are not technical in nature ��are to be given
their usual, natural, plain, ordinary, and commonly understood meaning.�� Western
Fuels, 11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of
Internal Revenue, 284 U.S. 552, 560 (1932)). It is only when the plain
meaning is doubtful that the issue of deference to the Secretary's
interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509
(D.C. Cir. 1984) (deference is considered �only when the plain meaning of the
rule itself is doubtful or ambiguous�) (emphasis in original).

Akzo
Nobel Salt, Inc.,
21 FMSHRC 846, 852 (Aug. 1999) (holding that the term �two or more separate
escapeways� is plain on its face and not subject to interpretation). The
relevant plain meaning of �closed� is �to bring to an end; terminate,� �to stop
the operations of permanently or temporarily.� The American Heritage
Dictionary 349 (4th ed. 2009). Judge Manning has addressed the issue
of �temporary closure� as it relates to section 56.1000 in John Richards
Construction, 23 FMSHRC 1045, 1049-50 (Sept. 13, 2001) (ALJ). Judge
Manning stated that section 56.1000 �is designed to cover
situations where an operation closes permanently or is closing for some
definite period of time.� Id. Consistent with Judge Manning, I believe
that a mine may not be considered �closed� within the context of its plain
meaning, when periodic ongoing loading activities dictated by the needs of
customers continue to occur.

����������� However,
the Secretary contends that the word �closed� is ambiguous, given the fact that
it is not defined in the Secretary�s regulations. Hence, the Secretary
maintains that a mine is �closed� when it is not engaged in the act of
extracting or processing material. Consequently, the Secretary argues that
activities solely related to filling orders from a preexisting stockpile do not
render the mine �open.� (Sec�y Mot. at 4-5).

����������� Where
a statutory provision is ambiguous or silent, deference is owed to the
Secretary�s interpretation of the provision as long as that interpretation is
reasonable. Bill Simola, employed by United Taconite LLC, 34 FMSHRC 539,
542-43 (Mar. 2012), citing Chevron USA, Inc., v. Natural Res. Defense
Council, Inc., 467 U.S. 837, 842-44; Energy West Mining Co. v. FMSHRC,
40 F.3d 457, 460 (D.C. Cir. 1994). Giving the Secretary the benefit of the
doubt that there is ambiguity, the Secretary�s proffered interpretation of the
word �closed� must be rejected as unreasonable because it is inconsistent with
previous ALJ decisions, as well as Commission decisions addressing the question
of what constitutes �mining.� Perhaps more importantly, the Secretary�s
position is contrary to the Mine Act�s fundamental goal of fostering a safer
working environment, given the absence of a showing of any feasible method by
which personnel performing loading activities can be protected from hazardous
equipment or mine conditions if Cove Quarry were deemed closed.

����������� In
arguing that the Secretary�s interpretation is reasonable, the Secretary relies
on Nelson Quarries, 32 FMSHRC 1422 (Oct. 7, 2010) (ALJ Rae). (Sec�y Mot.
at 4-6). In Nelson Quarries, the operator had notified MSHA that a plant
would be closed from February 2 to February 28, 2009. However, when the
inspector arrived in May 2009, he determined that the site was still closed,
and issued a citation for failing to provide MSHA with a corrected start date
as required by section 56.1000. 32 FMSHRC at 1425. The parties stipulated that
there had been no drilling, blasting, or extracting of materials in the
intervening months. Moreover, Nelson Quarries failed to provide any
documentation indicating that mechanics had been on-site to service equipment. Significantly,
as distinguished from this case, the testimony as to whether customers had been
loading trucks from a stockpile was inconclusive. Id. at 1426-28. Accordingly,
the judge held that the mine was still closed as of May 2009, and the citation
alleging a violation of section 56.1000 was affirmed. Id. at 1428. Thus,
the Secretary�s reliance on Nelson Quarries is misplaced, in that there
was no definitive evidence of any activities occurring at the mine.

����������� While
Nelson Quarries does not support the Secretary�s assertion that its interpretation
is reasonable, there are ample Commission Judges� decisions that have held that
loading from a stockpile constitutes sufficient activity for a mine to be
designated as �open� as contemplated by section 56.1000. In John Richards,
Judge Manning found that a sand pit was open on intermittent status where
employees were only on site when customers requested loading assistance. 23
FMSHRC at 1049-50 (vacating an alleged violation of section 56.1000 for failing
to notify MSHA of a mine shutdown). Similarly, in Robert L. Weaver, the
judge found that a mine was operating intermittently where miners were not
present when the inspector arrived, but came on-site to fill customer orders by
loading material from the mine stockpile. 15 FMSHRC 2117, 2120-21 (Oct. 4,
1993) (ALJ Melick) (vacating an alleged violation of section 56.1000 for
failing to notify MSHA of a temporary closure). See also, Concrete
Materials, 35 FMSHRC 690 (March 26, 2013) (ALJ Manning) (finding a
violation of section 56.1000 where a mine notified MSHA that it had closed, but
in fact it was not closed because the mine had �maintenance and load-out
activity throughout the winter as weather permitted�).

����������� Although
jurisdictional status and operating status are admittedly distinct issues, the
Commission�s caselaw on jurisdiction is instructive. In this regard, the
Secretary�s contention that a mine must be considered closed if the sole
activity is loading from a stockpile, because filling customer orders is too
far removed from the extraction process, is belied by Commission caselaw on
jurisdiction. In determining whether an operation is properly classified as
�mining,� the Commission has consistently looked to whether the activities
being undertaken are usually performed by the operator and are undertaken to
make the extracted material suitable for a particular use or to meet market
specifications. See Shamokin Filler Co., Inc., 34 FMSHRC 1897, 1902
(Aug. 2012), citing Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 7-8 (Jan.
1982).

Specifically, Elam involved a
business entity that operated a commercial dock on the Ohio River. Elam�s
customers were coal brokers who paid Elam to load and transport coal on barges
leaving from the dock. The Commission noted that Elam�s activities with respect
to coal related solely to loading it for shipment. Thus, the Commission
concluded that Elam�s facility was not a mine subject to the Mine Act. In
reaching this conclusion, the Commission stated:

Thus, inherent in the determination of
whether an operation properly is classified as �mining� is an inquiry not only
into whether the operation performs one or more of the listed work activities,
but also into the nature of the operation performing such activities. In
Elam�s operations, simply because it in some manner handles coal does not mean
that it automatically is a �mine� subject to the Act.

4
FMSHRC at 7 (emphasis in the original).

����������� While
Elam dealt with a jurisdictional question, the case stands for the
proposition that loading in response to a customer�s needs is not mining when
the business entity performs no activities normally associated with the
extraction and preparation processes. Here, Miller Springs� loading activities
in response to customer orders at the very site where the limestone, rock and
gravel are extracted and crushed, cannot be disassociated from the mining
process itself. In short, Miller Springs� loading activities utilizing front
end loaders and other relevant equipment at the Cove Quarry Mine, albeit
intermittently, remain under MSHA�s jurisdiction to inspect and, as such, may
not be considered evidence of inactivity justifying the characterization of the
mine as �closed.�[2]

����������� The
primary purpose of the Mine Act is to preserve �the health and safety of its
most precious resource � the miner.� 30 U.S.C. � 801(a). Inspections are the
means by which this purpose is achieved. 30 U.S.C. � 813(a). Presumably, only
mines listed as �open� are inspected. Requiring Cove Quarry to be listed as
�closed� while loading activity is occurring on-site endangers the health and
safety of the operators of the mobile equipment performing the loading
activities. See, e.g., Concrete Materials, 35 FMSHRC at 692 (noting
that allowing the mine to be classified as �closed� when activities were
occurring onsite endangers the health and safety of personnel in the mine); Hansen
Truck Stop, Inc., 26 FMSHRC 293, 297 (March 9, 2004) (ALJ Zielinski)
(noting that a mine operating on intermittent status is subject to MSHA
scrutiny, while a mine listed as closed is not). The only way for MSHA to
determine if stockpiles and mobile loading equipment are maintained safely is
to retain MSHA oversight, rather than relinquishing inspection responsibility
because a mine is considered to be closed.

����������� In
the final analysis, the motivation behind the Secretary�s assertion that the
mine should be deemed closed is pragmatic rather than substantive. In this
regard, in his brief, the Secretary states:

Due to the absence of equipment,
personnel, and activity at the mine, Inspector Pricer was unable to determine
whether Respondent operated the Mine in a safe manner. Instead, he
unnecessarily expended MSHA resources to travel to a closed mine which failed
to update its status as required by 30 C.F.R. � 56.1000.

(Sec�y
Mot. at 5-6) (citation omitted).

It is difficult to distinguish the
Secretary�s asserted hardship in inspecting mines in which activities are
limited to periodic loading from the Secretary�s apparent acceptance of its
responsibility to inspect mines that are designated with �intermittent status.�
As noted, Miller Springs informed MSHA that the Cove Quarry mine was on
intermittent status as of January 11, 2012. Miller Springs was cited for
failing to notify MSHA that it was closed as a result of Pricer�s June 28,
2012, inspection that found no mine personnel at the mine at that time. The
difficulty of complying with the notification requirements of section 56.1000
with regard to mine closure are self-evident in instances where activities are
dictated by the demands of customers. Judge Manning addressed this very issue
in John Richards:

In the case of this pit, it remained
open all winter, but it had employees present only when there was a demand for
its products. If Richards Construction had notified MSHA that it was closed at
the end of December 1998, the standard would have required it to notify MSHA
every time a customer called for sand. I do not read section 56.1000 imposing
such a requirement on intermittent operations.

23
FMSHRC at 1050. While I understand MSHA�s dilemma, the problem is one of
scheduling inspections rather than compliance with section 56.1000. The procedures
best known to MSHA for efficiently inspecting intermittent mines should have prevented
or minimized the possibility of Pricer�s unnecessary travel to the unattended
Cove Quarry mine on June 28, 2012.

����������� Consequently,
the Secretary has failed to demonstrate by a preponderance of the evidence that
the Miller Springs intermittent loading activities warranted changing the
status of the Cove Quarry mine from �intermittent� to �closed,� as loading at a
mine site constitutes mining. Accordingly, Citation No. 8628189 citing an
alleged violation of the reporting requirements in section 56.1000 shall be
vacated.

����������� As
a final note, this decision should be viewed in the context of the undisputed
facts in this case. It is significant that the Secretary has stipulated that
Miller Springs intermittently continued to fill orders from an existing
stockpile throughout 2012.

ORDER

����������� In
view of the above, IT IS ORDERED that the Secretary�s Motion for Summary
Decision IS DENIED, and the Cross-Motion for Summary Decision filed by
Miller Springs Material, LLC, IS GRANTED.

����������� Accordingly,
Citation No. 8628189 IS VACATED, and the captioned civil penalty
proceeding IS DISMISSED.

����������������������������������������������������������������������� /s/
Jerold Feldman������

����������������������������������������������������������������������� Jerold
Feldman

����������������������������������������������������������������������� Administrative
Law Judge

Distribution:

�����������������������

Carol
Liang, Attorney, U.S. Department of Labor, Office of the Solicitor, 1999
Broadway, Suite 800, Denver, CO 80202-5708

Jesse
Sepeda, Miller Springs Material LLC, 6218 Highway 317, P.O. Box 1598

/tmw

[1]
The record
does not reflect, nor does Miller Springs contend, that it engaged in any
production activities at Cove Quarry after it notified the San Antonio Field
Office on January 11, 2012, that it was on intermittent, producing status.

[2]
It is
noteworthy that Congress has expressed 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
the 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)
(emphasis added). The interruption of crushing and/or extraction, apparently
due to repair of the crusher, does not alter MSHA�s continuing jurisdiction
over Cove Quarry, given its intermittent loading activities. (See Jt.
Stip. 15).