Secretary of Labor v. Ellis & Eastern Company

Plain-English summary

MSHA cited Ellis & Eastern for failing to set a truck's parking brake inside its Sioux Falls railroad maintenance shop, which serviced locomotives used to transport quarry products. Judge L. Zane Gill held that the shop was physically separate from the quarry, repaired transportation equipment rather than mining equipment, and was not a mine or appurtenant private way under the Mine Act. He found that Ellis & Eastern was still an independent contractor because its daily rail service at the quarry was more than minimal. That contractor status did not extend MSHA jurisdiction to an off-mine repair facility used for finished-product transportation. The Judge granted summary decision, vacated the citation, and denied the company's separate request to cancel its contractor identification number.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14207
• Outcome: The parking-brake citation was vacated for lack of MSHA jurisdiction, while the contractor identification number remained in place.
• Key point: An independent contractor's off-site repair shop is not automatically a mine merely because the contractor regularly transports finished quarry products.

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

ELLIS
& EASTERN COMPANY,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. CENT 2014-0451

A.C.
No. 39-00008-351487

Mine:
Sioux Falls Quarry

DECISION AND ORDER

Appearances:               Daniel
McIntyre, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, Denver,
CO, for Petitioner;

Jeffrey A. Sar, Esq. Baron, Sar,
Goodwin, Gill & Lohr, Sioux City, IA, for Respondent.

Before:                        Judge
L. Zane Gill

This proceeding,
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) (“Mine Act” or “Act”), involves a 104(a) citation, 30 U.S.C. §
814(a), issued by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) to Ellis & Eastern Company (“E&E” or
“Respondent”) at its railroad shop in Sioux Falls, South Dakota. E&E is a
railroad company which primarily transports quarry products, building materials,
lumber, fly ash, and cement. (Mulloy[1]
Supplemental Aff. at 1–2)

The
parties submitted briefs, affidavits, and documentary evidence, the last of
which was received on June 22, 2015. All submissions pertain to the sole issue
of MSHA’s asserted jurisdiction over the Sioux Falls railroad shop. The
Secretary asserts jurisdiction over the shop either as part of a mine, a place
where mining equipment is repaired, or as an independent contractor’s facility.
E&E claims MSHA has no jurisdiction because E&E is not a mining company,
and additionally requests that its Independent Contractor Identification Number
be vacated. (Resp.
Br. at 15)
For the reasons stated below, I find that there is no genuine issue of material
fact, and the Respondent is entitled to Summary Disposition as a matter of law
because

MSHA
does not have jurisdiction over the railroad shop, even though E&E is an
independent contractor. Citation No. 8753373 is vacated.

Background
History

E&E considers itself a railroad
corporation, and solely under the jurisdiction of the Federal Railway
Administration (“FRA”). (Resp. Br. at 2) As described in the affidavits, E&E
daily brings empty railcars into Concrete Materials’ Sioux Falls quarry, which
are then loaded by miners during the night shift. (Zahn[2] Aff. at 1–2;
Schmidt[3]
Aff. at 4) The railcars are moved by E&E on Concrete Materials’ private
tracks which connect into the Burlington Northern Santa Fe (“BNSF”) railroad
system. (Mulloy Aff. at 2) The BNSF is a “general railroad system of
transportation,” and under FRA jurisdiction. (Schmidt Aff. at 3); See also
(Sec. Br. at 12–13)  The tracks lie between the E&E railroad shop and Concrete
Materials’ mining pit, ending in the mine’s screening and washing area where
the railcars are loaded. (Ex. GX 1) A public road must be crossed to travel
from the mine’s quarry or processing areas to E&E’s railroad shop. Id.

Historically, MSHA inspected the railway
shop on February 17, 2010, and issued two citations. (Mulloy Aff. at 2–3); (Ex.
GX 4); (Ex. GX 5) MSHA later vacated the citations because of concerns that
E&E had not received sufficient notice of its jurisdiction. (Peck[4] Aff. at
1–2) In its letter vacating the citations, MSHA explicitly asserted
jurisdiction over E&E’s “tracks, railcars, and maintenance shop.” (Ex. GX
6)

On March 19, 2014, MSHA Inspector Alan
Roberts[5]
(“Roberts”) inspected E&E’s railroad shop. (Resp. Br. at 1) E&E
informed Roberts before the inspection that it did not acknowledge MSHA’s
authority over the building. Id. Prior to 2010, the maintenance shop was
solely inspected by the FRA. (Mulloy Aff. at 2) Citation No. 8753373 was issued
because the parking brake was not set on a truck inside the railroad shop. (Resp.
Br. at 2) The only question examined in this motion is whether MSHA had
jurisdiction over the maintenance shop where the citation was issued.

Standard
of Review

The
Commission held that “summary decision is an extraordinary procedure.” Mo.
Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). It is “granted only if the
entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) That there is no
genuine issue as to any material fact; and (2) That the moving party is
entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67. When
weighing the parties’ arguments, all inferences are “viewed in the light most favorable
to the party opposing the motion.” Hanson Aggregates NY, Inc., 29 FMSHRC
4, 9 (Jan. 2007) (citations omitted).

Chevron
Deference

When judging the validity of an MSHA statutory
interpretation, the first issue is “whether Congress has directly spoken to the
precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984). If the “statute is clear and unambiguous,
effect must be given to its language.” Watkins Eng'rs & Constructors,
24 FMSHRC 669, 672–73 (July 2002) (citations omitted). If the statute is
ambiguous or silent on a point in question, further analysis is required to
determine whether the agency’s interpretation of the statute is reasonable. Id.

“It is only when the plain meaning is
doubtful or ambiguous that the issue of deference to the Secretary’s
interpretation arises.” Bluestone Coal Corp., 19 FMSHRC 1025, 1028 (June
1997) (citing Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C.
Cir. 1984)). Deference is accorded to “an agency's interpretation of the
statute it is charged with administering when that interpretation is
reasonable.” Energy W. Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir.
1994) (citing Chevron, 467 U.S. at 844). “The agency's interpretation of
the statute is entitled to affirmance as long as that interpretation is one of
the permissible interpretations the agency could have selected.” Watkins,
24 FMSHRC at 673 (citations omitted). Furthermore, “the statutory provision
underlying the regulation, as well as any related statements accompanying the
regulation’s publication in the Federal Register, may illuminate
the regulation’s meaning.” Lehigh Southwest Cement, 33 FMSHRC 3229, 3234
(Dec. 2011)(ALJ Paez) (citing Lodestar Energy Inc., 24 FMSHRC 689,
693 (July 2002)). Additionally, “[i]n the absence of a statutory or regulatory
definition of a term, or a technical usage, we look to the ordinary meaning of
the terms used in a regulation.” Bluestone, 19 FMSHRC at 1029 (citing
Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996)).

Definition
of a Mine

Section
4 of the Mine Act provides that “[e]ach coal or other mine… shall be subject to
the provisions of this Act.” 30 U.S.C. § 803. “Coal or other mine” is defined
in Section 3(h)(1) of the Act as:

(h)(1)
"coal or other mine" means (A) an area of land from which minerals
are extracted… (B) private ways and roads appurtenant to such area,
and (C) lands, excavations, underground passageways, shafts, slopes, tunnels
and workings, structures, facilities, equipment, machines, tools, or
other property… used in, or to be used in, or resulting from, the work of
extracting such minerals… or used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other minerals, and includes
custom coal preparation facilities.

30
U.S.C. § 802(h)(1) (emphases added).

The work of preparation includes “breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing and loading”
of mining products “as is usually done by the [mine] operator...” 30 U.S.C. §
802(i) (emphasis added). Specifically on the issue of jurisdiction, the Senate
Committee on Human Resources specified that

there may be a need to resolve
jurisdictional conflicts, but it is the Committee's intention that what is
considered to be a mine and to be regulated under this Act be given the broadest
possibl[e] interpretation, and it is the intent of this Committee that
doubts 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) (emphasis added). The Commission holds
that “questions of statutory coverage must be resolved within the Act's overall
purpose of protecting miners' safety and health.” W.J. Bokus Indus., Inc.,
16 FMSHRC 704, 708 (Apr. 1994) (citation omitted).

The
Railroad Shop is not a Private Way Appurtenant to the Mine

MSHA claims jurisdiction over E&E’s
railroad maintenance shop in several ways, and asserts all of them are entitled
to Chevron deference. Essentially, the Secretary argues that miner
safety is affected by the condition of the train tracks and railcars because miners
daily load the locomotives. (Sec. Br. at 8) Therefore, the building in which
the trains are maintained should be under MSHA supervision. Id. at 1–2.

The
Secretary’s first argument alleges that E&E’s railroad shop is a mine. (Sec.
Br. at 6) Citing Mine Act Section 802, the Petitioner argues the railroad
tracks are a “private way appurtenant to” the quarry and is thereby part of the
mine. Id. The words “private” and “appurtenant” as used in 30 U.S.C. §
802(h)(1), are recognized by the Commission as being ambiguous. Nat’l Cement
Co. of Cal., Inc., 30 FMSHRC 668, 670 (Aug. 2008). Therefore, the question
is whether the Secretary’s interpretation of these terms as including E&E’s
maintenance shop is reasonable. Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 844 (1984).

MSHA’s authority over appurtenant ways extends
to roads not owned by the mine, if they are integral to the operation. See TXI
Operations, LP, 23 FMSHRC 54, 60 (Jan. 2001)(ALJ Feldman). E&E admitted
that Concrete Materials owns the train tracks connecting the mine to the BNSF
rail system. (Resp. Reply Br. at 2) However, MSHA’s asserted jurisdiction over the
railway is immaterial because the citation was issued for a violation inside
the maintenance shop, rather than for a condition or activity on the outside
train tracks. Additionally, while private ways to mines are under MSHA
jurisdiction, the vehicles which travel upon them are not. Nat’l Cement Co.
of Cal., Inc., 573 F.3d 788, 793 (D.C. Cir. 2009). The shop where the citation
was issued only repairs locomotives, over which MSHA has no jurisdiction. Id.

The Secretary cites two cases supporting
its claim that the railroad shop is a mine, however those precedents are
distinguishable. Harman Mining Corp. and CML Metals Corp., both
dealt with hauling accidents on railways adjacent to mine loading areas. 671
F.2d 794, 796 (4th Cir. 1981); 35 FMSHRC 1962, 1962–63 (June 2013)(ALJ Miller).
In Harman, MSHA retained jurisdiction because the accident’s close
proximity to the loading machinery made it incidental to the mine. Id. However
in E&E’s case, the cited truck was in a building physically separated from
loading and all other mining processes.

In
conclusion, the E&E railway repair shop is not a mine under the Mine Act. The
Secretary’s interpretation, which asserts jurisdiction over the shop because its
proximity to the railroad tracks somehow makes it part of the mine, is
unreasonable and not entitled to deference.

The
Railroad Shop does not Repair Mining Equipment

The Secretary claims E&E’s trains are
mining equipment, and therefore MSHA has authority over the railroad shop as
part of its general jurisdiction over maintenance areas. (Sec. Br. at 6); E.g.
U.S. Steel Mining Co., Inc., 10 FMSHRC 146, 149 (Feb. 1988); W.J. Bokus
Indus., Inc., 16 FMSHRC 704, 708 (Apr. 1994); Jim Walter Res., Inc.,
22 FMSHRC 21, 25 (Jan. 2000). Classifying E&E’s trains as mining equipment
is essential to MSHA’s jurisdiction claim, because the railroad shop does not
repair any other alleged mining machinery. (Schmidt Aff. at 4; Zahn Aff. at 2) However,
the railcars are not used in any of the 30 C.F.R. § 802(i) mining activities of
“breaking, crushing, sizing, cleaning, washing, drying, mixing, storing… [except
for] loading.” I do not find this language to be ambiguous, and therefore, restrict
the analysis to its plain meaning.

However, even the loading process is done
by Concrete Materials’ miners rather than E&E’s railway workers. (Zahn Aff.
at 1) Based on this evidence, it is inaccurate to designate the railcars as
mining equipment, because loading is simply incidental to their primary usage
in transportation. Id. While loading is an activity listed in the Mine
Act, the Commission has provided guidance that an operation should be
considered holistically to determine whether it engages in mining. Oliver M.
Elam, Jr., Co., 4 FMSHRC 5, 7 (Jan. 1982). This is based on the Mine Act,
which extends MSHA jurisdiction to activities “usually done by the operator of
the coal mine.” 30 C.F.R. § 802(i). In Elam, a coal barge loader’s
operation was ruled not to be a mine because the nature of the business was
fundamentally different. 4 FMSHRC at 7. The inherent differences between barge
loading and mining outweighed the fact that the operator broke, crushed, sized,
and loaded coal, all of which are activities associated with mining. Id.
at 5–6. Similarly, based on the nature of E&E’s business, its vehicles are
properly viewed as railroad, rather than mining, equipment.

Furthermore, none of E&E’s railroad
vehicles enter the quarry extraction area. (Schmidt Aff. at 3) As noted in Pickett
Mining Grp., equipment must be used in mining to come under MSHA
jurisdiction. 36 FMSHRC 2444, 2452 (Sept. 2014)(ALJ Rae). Specifically, MSHA
cannot “regulate equipment that is not located within the boundaries of the
extraction area, is not a component of an appurtenant road or way, is not used
by the operator's employees, and bears no relation to its mining operations.” Id.
at 2451. The extraction and processing areas, rather than the legal property
boundaries, determine the zone of MSHA authority. Id.

I find that E&E’s equipment is not
mining equipment because it is not used in activities “usually done by the
operator,” according to the Mine Act’s plain meaning. 30 C.F.R. § 802(i). None
of the cases cited by the Secretary demonstrates MSHA’s jurisdiction over
buildings exclusively dedicated to transportation equipment maintenance. I find
that the machinery E&E maintains in railroad shop is not mining equipment,
and therefore it is not under MSHA jurisdiction.

E&E
and Concrete Materials are not a Single Operation

Alternatively,
the Secretary argues that Concrete Materials and E&E are “integral
components of a single operation,” run by their parent company Sweetman
Construction (“Sweetman”). (Sec. Br. at 1, 7) Therefore, jurisdiction over the
mining company Concrete Materials also encompasses the E&E railroad
corporation. Id. To support this contention, the Secretary argued that:
(1) Many of the same individuals are E&E’s and Concrete Materials’ chief
officers; (2) Sweetman owns the property on which the mine and railroad shop are
located; (3) In 1995, approximately 90% of the materials E&E transported
were Concrete Materials’ products; (4) Both corporations share the same website;
(5) and E&E stated that it is “primarily transporting aggregate products
for Concrete Materials.” Id. at 2-4, 7, 10; (Ex. GX 1; Ex. GX 8; Ex. GX
9; Ex. GX 10). E&E did admit that its stock “is owned by Sweetman as is the
quarry which Sweetman operates under the name of Concrete Materials.” (Resp.
Reply Br. at 2)

Citing Mineral Coal Sales, Inc.,
the Secretary alleges E&E and Concrete Materials are in substance a single
company. 7 FMSHRC 615, 620–21 (May 1985). However, Mineral Coal Sales,
primarily dealt with the issue of companies dividing mining processes
functionally into separate corporations to limit liability. Id. The reliance
on this case law is misplaced because Concrete Materials has not decreased or
attempted to decrease its liability for the mine’s conditions. Here, the goods
E&E delivers are finished products, (Resp. Br. at 11) costumers often pick
up finished goods from mines, and operators are liable for any violations customers
commit onsite. El Paso Rock Quarries, Inc., 1 FMSHRC 2046, 2047–48 (Dec.
1979)(ALJ Moore); C.D. Livingston, 7 FMSHRC 1485, 1487 (Sept. 1985)(ALJ
Morris) (citation omitted). However, operators are never liable for the
conditions of costumers’ offsite transportation maintenance facilities. Concrete
Materials is not dodging any liability it would normally bear.

The fact that both E&E’s and
Concrete Materials’ worksites are on the same property is immaterial because
clear boundaries exist between the work areas. (Sec. Br. at 4) Physical
barriers prevent direct access from E&E’s facility to Concrete Materials’
mine. (Mulloy Aff. at 2); (Resp. Ex. 102) Traveling from the quarry to
E&E’s shop necessitates briefly going on a public road. (Resp. Br. at 3) Both
facilities have separate entrance gates, and a wooded drop off lies between the
E&E shop and Concrete Materials quarry. (Goembel[6] Aff. at
2–3); (Resp. Ex. 124; Resp. Ex. 128) MSHA does not possess jurisdiction over
facilities even when they are adjacent to a mining operation, unless they have
a connection with the mine. See Clarkson Constr. Co., Inc., 37 FMSHRC
450, n.1 (Feb. 2015)(ALJ Manning). I find no connection between the mine and
railroad shop, other than the maintenance of trains which distribute some of
the quarry’s products, therefore, MSHA does not have jurisdiction over E&E’s
shop.

Lastly, the Respondent presented
persuasive evidence showing E&E and Concrete Materials are different
companies. Only 15% of E&E’s volume in 2014 originated from the Sioux Falls
quarry. (Mulloy Supplemental Aff. at 1) Business from outside Sweetman
accounted for nearly half of the goods E&E shipped in 2014. Id. at
1–2. Other companies contracting with E&E include “GCC Dakotah Cement,
Holcim Cement, and Headwaters Fly Ash.” (Schmidt Aff. at 5) Besides quarry
products, E&E also transports “rebar, re-enforcing steel, and scrap metal.”
(Resp. Br. at 5) Lastly, 73% of E&E’s revenue came from sources besides
Sweetman’s various subsidiaries. (Mulloy Supplemental Aff. at 2) These facts
demonstrate that E&E is a separate company for the purposes of the Mine
Act. The overlap in Concrete Materials’ and E&E’s senior management is
irrelevant. (Sec. Br. at 3) Many companies have diverse holdings, and common
senior management teams indicate little about whether they are a single mining
operation.

I
find that E&E and Concrete Materials cannot reasonably be treated as a
single operation. Both corporations have sufficiently diverse holdings and
interests to merit treatment as distinct companies.

E&E
is an Independent Contractor

Respondent
argues it is not an independent contractor because it only provides de
minimis services to Concrete Materials. (Resp. Br. at 9) For this reason, E&E
requests that its Independent
Contractor Identification Number be vacated. Id. at 15. Specifically, E&E’s
relationship with the mine is limited to the delivery of finished products. Id.
at 11. E&E relies on the view that “delivery of coal to a consumer after it
is processed usually does not fall under the coverage of the Mine Act.” United
Energy Servs., Inc., 35 F.3d 971, 975 (4th Cir. 1994). However, Bulk
Transport. Servs., Inc. demonstrates that distributors can be held liable
as independent contractors. 13 FMSHRC 1354, 1358 (Sept. 1991). Respondent
attempted to distinguish Bulk as primarily a precedent on subcontractor
liability. (Resp. Reply Br. at 11–12) While Bulk addresses this topic,
the holding still undermines E&E’s position because a distributor was found
to be an independent contractor. 13 FMSHRC at 1358. Like Bulk, E&E
maintained a continuing presence at the mine through the daily drop off and
shipment of railcars. (Id.; Schmidt Aff. at 4)

The
meaning of an operator under the Mine Act is very broad and includes “any
independent contractor performing services at a mine.” Otis Elevator Co.,
921 F.2d 1285, 1290 (D.C. Cir. 1990). However, a business relationship can be
“so infrequent or de minimis that it would be difficult to conclude that
services were being performed.” Id. at n.3 (citation omitted). Not
working at a mine for five years is a sufficient time gap for a company’s
services to become de minimis and outside MSHA’s jurisdiction. See Clarkson
Constr. Co., Inc., 37 FMSHRC 450, 453 (Feb. 2015)(ALJ Manning). Additionally,
the services rendered do not have to be “significant” to bring a company under
MSHA’s purview. Williams Natural Gas Co., 19 FMSHRC 1863, 1868 (Dec.
1997). Some activities, like weekly deliveries, are insubstantial enough to be
considered de minimis. N. Ill. Steel Supply Co., 294 F.3d 844,
848–49 (7th Cir. 2002). Although E&E cites N. Ill. Steel Supply Co.,
to support its characterization of its services as de minimis, its
relationship is much more substantial than the “once or twice a week”
deliveries made in that case, because its locomotives transport goods for
Concrete Materials daily. Id. at 845; (Zahn Aff. at 1–2; Schmidt Aff. at
4)

The
services E&E performs are not de minimis. At a minimum, E&E
carries 10% of Concrete Materials’ quarry products. (Mulloy Supplemental Aff.
at 1) Furthermore, the affidavits describe E&E as dropping railcars off daily
for loading during the nightshift. (Zahn Aff. at 1–2; Schmidt Aff. at 4) This means
that during a normal operating day, E&E’s trains enter the worksite at
least twice. Although both Concrete Materials and E&E have other
transportation and revenue sources, the relationship between the two companies
is significant. Id. at 2. Furthermore, the concept of de minimis
often represents the amount of time spent at the mine. See D.Q. Fire &
Explosion Consultants, Inc., 34 FMSHRC 2318, 2330 (Aug. 2012). The minimum
time necessary to pass the de minimis requirement is quite small, “as little
as 1.5 hours per week in the mine.” Id. at 2332. (citations omitted) E&E’s
daily presence at the Sioux Falls quarry makes its services greater than de
minimis. (Schmidt Aff. at 4) While no evidence has been presented directly
on the amount of time E&E’s workers spend at the mine, it is reasonable to
conclude that it surpasses 90 minutes per week.

Since
E&E’s services to Concrete Materials are not de minimis, its request that
the Independent Contractor Identification Number be vacated is denied.

E&E’s
Railroad Shop is not Under MSHA Jurisdiction as an Independent Contractor

While
operators and independent contractors are liable for all violations committed
on mine property, Cemex, Inc., 33 FMSHRC 1169, 1172 (May 2011)(ALJ Paez),
the shipping of mine products is at the outer bounds of MSHA’s authority
because the “delivery of coal to a consumer after it is processed usually does
not fall under the coverage of the Mine Act.” United Energy Servs., Inc.,
35 F.3d 971, 975 (4th Cir. 1994); See also PA Elec. Co., 969 F.2d 1501,
1504 (3rd Cir. 1992). Additionally, even if located adjacent to a mine, an
independent contractor’s repair facility is not subject to MSHA jurisdiction if
outside the extraction area. See Justis Supply & Mach. Shop, 22
FMSHRC 544, 547 (Apr. 2000)(ALJ Manning). Here, E&E’s maintenance shop is
outside MSHA jurisdiction because it is off the mine site and only involved in
the repair of transportation equipment used to deliver finished goods.

I
find that E&E’s repair shop is located outside of the mining areas and that
MSHA cannot reasonably assert jurisdiction under the Mine Act. Because MSHA
does not have jurisdiction over the facility, there is no need to consider
whether there is a conflict with the FRA’s authority.

Conclusion

I
find that there is no genuine issue as to any material fact, and therefore, the
moving party is entitled to summary decision as a matter of law based on
jurisdiction. As such, while E&E is an independent contractor, its maintenance
shop within which the citation was issued is outside MSHA’s jurisdiction as
defined by 30 U.S.C. § 802(h)(1). Therefore, E&E cannot be liable for a
violation of 30 C.F.R. § 56.14207, which requires operators to set the parking
brakes on unattended vehicles, in that building.

WHEREFORE, Citation No. 8753373
is VACATED and E&E’s request that the Independent Contractor
Identification Number be vacated is DENIED.

/s/ L. Zane Gill

L. Zane Gill

Administrative
Law Judge

Distribution:

Daniel
McIntyre, Trial Attorney, Office of the Solicitor, U.S. Department of Labor,
1244 Speer Blvd, Suite 216, Denver, CO 80204

Jeffrey
A. Sar, Esq. Baron, Sar, Goodwin, Gill & Lohr, 750 Pierce Street, P.O. Box
717, Sioux City, Iowa 51102

[1] Jon Mulloy
(“Mulloy”) is President of E&E, holding that position since 2001. (Mulloy
Aff. at 1) Mulloy began working at E&E in 1988, as Operations
Superintendent, immediately after its incorporation. Id. In 1994, Mulloy
was appointed E&E’s Vice President and General Manager. Id.

[2] George Zahn
(“Zahn”) has been the Quarry Superintendent at the Sioux Falls Mine since 2002.
(Zahn Aff. at 1) Zahn began working at the Concrete Materials mine in 1970. Id.
Zahn’s positions at Concrete Materials have included equipment hauler, loading
operator, and quarry head man. Id.

[3] Bill Schmidt
(“Schmidt”) is the Operations Superintendent at E&E. (Schmidt Aff. at 1)
Schmidt entered the railroad industry in 1984, working at D & I Railroad. Id.
In 1995, Schmidt became a locomotive engineer. Id. Schmidt joined
E&E in 2002, has attended and taught numerous classes on railroad safety. Id.
at 2.

[4] James Peck
(“Peck”) is a Staff Assistant to the MSHA District Manager in Duluth, MN. (Peck
Aff. at 1) Peck’s career in the mining industry began in 1982 as an underground
miner. Id. Subsequently, Peck worked as a mobile equipment and mine
operator at various private enterprises. Id. Peck joined MSHA in 2008,
and has served as a Conference Litigation Representative and Inspector. Id.

[5] The Secretary did
not present Inspector Roberts’ qualifications or attach an affidavit from him.

[6] Kevin Goembel
(“Goembel”) is the Safety Director at Concrete Materials. (Goembel Aff. at 1) Goembel
began working at Concrete Materials in 1978 as a quarry laborer. Id. Between
1978 and 1988, Goembel was a heavy equipment operator. Id. In 1988,
Goembel became night shift foreman at the Sioux Falls quarry. Goembel has also
been a supervisor at Concrete Materials’ various plants, including the sand and
gravel operation.