Clarkson Construction Company, Inc. v. Secretary of Labor

Plain-English summary

Clarkson Construction operated an OSHA-regulated concrete batch plant on property owned by a quarry operator and bought material from the quarry. MSHA cited Clarkson after two of its truck drivers used a tarping area on mine property without fall protection and with a truck running and unchocked. The parties stipulated that Clarkson had no contract to perform mine services, had not performed mine construction or services for about five years, and did not serve the quarry during the cited incident. Judge Richard W. Manning held that Clarkson was neither a mine operator nor an independent contractor under the Mine Act. He granted summary decision and vacated all four enforcement actions because MSHA lacked jurisdiction over Clarkson.

Decision snapshot

• Governing authority: 30 U.S.C. § 802(d); 30 C.F.R. § 45.2(c)
• Outcome: One citation and three orders were vacated, and the contest proceedings were dismissed as moot.
• Key point: Entering mine property as a customer does not make a company an operator or independent contractor when it performs no services or construction for the mine.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

February 17,
2015

CLARKSON
CONSTRUCTION

COMPANY,
INC.,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

CONTEST
PROCEEDINGS

Docket
No. CENT 2014-588-RM

Order
No. 8760683; 08/05/2014

Docket
No. CENT 2014-589-RM

Citation
No. 8760684; 08/05/2014

Docket
No. CENT 2014-590-RM

Order
No. 8760685; 08/05/2014

Docket
No. CENT 2014-591-RM

Order
No. 8760686; 08/05/2014

Bonner
Springs Quarry

Mine
ID 14-01578 KTL

ORDER GRANTING
CONTESTANT CLARKSON CONSTRUCTION’S MOTION FOR SUMMARY DECISION

These
cases are before me upon notices of contest filed by Clarkson Construction
Company, Inc. (“Clarkson”) pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815 (the “Mine Act” or “Act”). The parties
agreed to file cross-motions for summary decision on the sole issue of whether
MSHA had jurisdiction to issue the subject citation and orders. The parties
agreed to 13 stipulated facts to use in conjunction with their cross-motions. The
parties both assert that no material facts are in dispute and that jurisdiction
should be decided based upon the stipulations before me.

I.                  
STIPULATED
FACTS

1.
Clarkson Construction has not performed any services or construction at a mine
site for approximately five years.

2.
Clarkson Construction has a cement batch plant that is located on property
owned by APAC-Kansas, Inc.

3.
The batch plant is located at the Bonner Springs Quarry, approximately 200 feet
from the office/scale house.

4.
APAC-Kansas, Inc., supplies material for the batch plant from its Bonner
Springs Quarry to a stockpile near the batch plant.

5. Clarkson Construction is a customer
   of APAC-Kansas, Inc.

6.
APAC-Kansas, Inc.’s employees or contractors deliver material from Bonner
Springs Quarry to a stockpile near the batch plant.

7.
Clarkson Construction does not have a contract with APAC-Kansas, Inc. to
perform services or construction at the Bonner Springs Quarry.

8.
Clarkson Construction’s employees who operate the batch plant have received
site-specific hazard training.

9.
On August 5, 2014, two Clarkson Construction trucks pulled into the Bonner
Springs Quarry to tarp truck beds.

10.
The tarping area of the mine is approximately 200 yards from the entrance to
the mine property.

11.
The Clarkson Construction employees driving the trucks did not perform any
services or construction at the Bonner Springs Quarry on August 5, 2014.

12.
Steve Gilbreath has not worked at any mine site while employed by Clarkson
Construction.

13.
It is the responsibility of the operator of a mine to enforce mandatory safety
standards on all vehicles entering the mine property.

II.               
BACKGROUND

MSHA
Inspector Sidney Garay issued the citation and orders contested in these cases
to Clarkson on August 5, 2014, as a result of a single incident at the tarping
station near the entrance to the Bonner Springs Quarry, which is owned and
operated by APAC-Kansas, Inc. (“APAC”). Clarkson operates a batch plant located
on quarry property. The batch plant is subject to inspection by the Department
of Labor’s Occupational Safety and Health Administration. Under the Interagency
Agreement, MSHA does not have jurisdiction over the batch plant. 44 Fed Reg
22827 (Apr. 17, 1979) amended by 48 Fed Reg 7,521 (Feb. 22 1983).

On August 5, 2014, Inspector Garay
issued one citation, Citation No. 8760684, and two orders, Order Nos. 8760685 and
8760686, to Clarkson under section 104(a) of the Mine Act. He also issued Order
No. 8760683 under section 107(a) of the Act. Citation No. 8760684 and Order No.
8760683 both state, in part:

The two truck drivers were not wearing
fall protection (Safety Belts and Lines) while climbing on the side of the dump
bed, in the dump bed and on top of the headache rack of the Freightliner dump
truck, Co#8212, DOT#087210. In addition the truck[’]s engine was running and
the wheels were not chocked against motion. The freightliner dump truck was
parked in the tarping area of the mine. The two truck drivers and the truck
foreman were exposed to a fall off the dump truck bed, blunt force, impact
fatal injury.

(Ex.
G-A at 1, 3). Order No. 8760685 states, in part:

The Freightliner Dump Truck, Co. #8212,
DOT#087210 was left unattended with the engine running and wheels not chocked
against motion, two truck drivers were working in the dump truck bed area, one
in the bed, one hanging on the side of the bed and the truck supervisor
standing on the tarping catwalk next to the dump truck.

(Ex.
G-A 5). Order No. 8760686 states, in part, that “[t]here were persons working
near the unattended dump truck[.]” (Ex. G-A at 7).

III.            
DISCUSSION
AND ANALYSIS

I find that there are no disputed material
facts and Clarkson is entitled to summary decision as a matter of law because
MSHA lacked jurisdiction over Clarkson; I therefore vacate Citation No. 8760684
and Order Nos. 87606843, 8760685, and 8760686.

Under the Mine Act, the term “operator”
is defined as “any owner, lessee, or other person who operates, controls, or
supervises a coal or other mine or any independent contractor performing
services or construction at such mine.” 30 U.S.C. § 802(d). Although the Act
does not provide a definition for independent contractor, MSHA regulations do,
asserting that the term “means any person, partnership, and
corporation, subsidiary of a corporation, firm, association or other
organization that contracts to perform services or construction at a mine.” 30
CFR § 45.2(c).
The
Commission has held that any independent contractor that performs “more than de
minimus services at a mine” is an operator under § 802(d). Musser
Engineering Inc., and PBS Coal Inc., 32 FMSHRC 1257, 1268 (Oct. 2010); See
Northern Illinois Steel Co. v. Sec'y of Labor, 294 F.3d 844, 848 (7th Cir.
2002); Joy Technologies Inc., Coal Field Operations v. Sec'y of Labor,
99 F.3d 991, 999-1000 (10th Cir. 2002); Otis Elevator Co. v. Sec'y of
Labor, 921 F.2d 1285, 1290 (D.C. Cir. 1990). Although jurisdiction is a
legal question, it is highly influenced by factual considerations; the
“totality of work” performed upon the pertinent project, not just the work
relating to the underlying citations, “must be considered on the jurisdiction
issue.” Musser, 32 FMSHRC at 1269.

I must consider the above law and the
undisputed facts before me in the context of a summary decision. Commission
Procedural Rule 67 sets forth the grounds for granting summary decision, as
follows:

A motion for
summary decision shall be 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(b). The Commission has long recognized that “summary decision
is an extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414,
1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981)). The Commission has also analogized Commission Procedural Rule 67 to
Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan. 2007); See Also Energy West, 16 FMSHRC at 1419
(citing Celotex Corp v. Cartrett, 477 U.S. 317, 237 (1986)).

When the Commission reviews a summary
decision under Comm. P. R. 67, it looks “ ‘at the record on summary judgment in
the light most favorable to … the party opposing the motion,’ and that ‘the
inferences to be drawn from the underlying facts contained in [the] materials
[supporting the motion] must be viewed in the light most favorable to the party
opposing the motion.’ ” Hanson Aggregates New York Inc., 29 FMSHRC at 9
(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473
(1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

I
find that Clarkson did not perform more than de minimus services at the
Bonner Springs Quarry, was not an independent contractor or operator under the
Mine Act, and not subject to MSHA’s jurisdiction. The first of the 13 facts
stipulated to by the parties is “Clarkson Construction has not performed any
services or construction at a mine site for approximately five years.” Joint
Stip. at 1. The parties stipulate, furthermore, that “[t]he Clarkson
Construction employees driving the trucks did not perform any services or
construction at the Bonner Springs Quarry on August 5, 2014.” Joint Stip. at 11.
The Mine Act mandates broad jurisdiction for MSHA to regulate independent
contractors. See Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151,
154 (D.C. Cir. 2006). Clarkson, however, is not an independent contractor at
the Bonner Springs quarry as that term is used in the Mine Act. Clarkson has no
contract to perform services for Bonner Springs quarry and does not perform any
services for APAC. Considering Clarkson’s actions beyond the underlying
citations, its totality of work was not only de minimus, but, as the
parties stipulate, nonexistent.[1]
Under the stipulated facts, Clarkson Construction was not an operator or
independent contractor under the Mine Act and therefore MSHA could not cite
Clarkson for the alleged violations at issue in these cases.[2]

The Secretary argues that the Clarkson
employees cited in these violations entered mine property and therefore fall
under the jurisdiction of the Mine Act. Clarkson’s use of mine roads alone does
not confer MSHA jurisdiction over Clarkson. Sec’y of Labor v. Nat’l Cement
Co. of Cal., Inc., 573 F.3d 788, 795–97 (D.C. Cir. 2009). The Secretary
cites numerous Commission cases to support his assertion; these cases, however,
do not hold that an entity such as Clarkson falls under MSHA’s jurisdiction.[3]
The question before me is not whether MSHA has jurisdiction over the tarping
area, but whether MSHA has jurisdiction to issue citations to Clarkson. Even
assuming that MSHA has jurisdiction to issue citations for violations of safety
standards that occur at the tarping area, I find that MSHA does not have
jurisdiction to cite Clarkson for that conduct.[4]

The Secretary focuses upon MSHA’s broad
jurisdiction and cites instances where courts upheld that jurisdiction, but he
does not provide precedent or convincing arguments that Clarkson is an operator
or independent contractor that is subject to that jurisdiction. The Secretary stipulated
that Clarkson performed no services at the mine; the Commission determines
jurisdiction of an entity based upon its services performed for the mine. Although
broad, MSHA’s jurisdiction is not universal and must be based upon specific
facts.[5]
The stipulations do not show that Clarkson regularly used the tarping station,
but they do show that any use that occurred was not in service of APAC and was
not related to mining. Clarkson’s status as a customer of the quarry,[6]
its operation of the adjacent batch plant, and its use of the road leading to
the mine to access that batch plant do not make it an independent contractor.

Clarkson did not perform services at a mine;
therefore, Commission precedent and the clear language of the Mine Act dictate
that Clarkson was neither an operator nor independent contractor. I find that
as a matter of law, Clarkson is entitled to summary decision because MSHA did
not have jurisdiction over Clarkson when it issued the subject citation and
orders.

IV.            
ORDER

I hereby VACATE Citation No.
8760684 and Order Nos. 8760683, 8760685, and 8760686 because MSHA
does not have jurisdiction over Clarkson Construction Company, Inc. Consequently,
the Notices of Contest are GRANTED and these cases are DISMISSED as
moot.

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Matthew R. Korn,
Esq., Fisher & Phillips, LLP, P.O. Box 11612, Columbia, SC 29211 (certified mail)

Susan J. Willer,
Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing Square
Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108 (certified mail)

[1] Clarkson controls
a batch plant adjacent to the mine, but that plant is not under MSHA’s
jurisdiction. 44 Fed Reg 22827 at ¶ B.6.b. Clarkson’s operation of the batch
plant is not a service for APAC and does not provide a connection or presence
at the mine upon which MSHA jurisdiction can be based.

[2] In N.
Illinois Steel Supply Co., a company’s employees routinely drove vehicles onto
a mine property and helped unload those vehicles, but the Seventh Circuit found
that the company was not subject to Mine Act jurisdiction. 294 F.3d at 848-49. The
case before me does not include a regular, scheduled occurrence, but rather a
single instance of employees utilizing a tarping station located 200 feet from
the entrance to mine property, which was not at the behest of APAC and was not
for APAC’s benefit. The entity in N. Illinois Supply Co. performed
services for a mine and entered that mine on a regular basis, but its actions
were de minimus and did not subject it to MSHA’s jurisdiction. Although
it regularly uses roads appurtenant to the quarry, Clarkson performed no
services for APAC; N. Illinois Supply Co. suggests that Clarkson is not
subject to MSHA’s jurisdiction.

[3] The Secretary
cites Calmat Company of Arizona, which focuses upon MSHA jurisdiction of
a dual use area that was used by a batch plant and a mine. 27 FMSHRC 617 (Sept.
2005). In the present case, however, Clarkson does not dispute that the cited
area, or the road appurtenant to the mine, are “at a mine.” At issue is
Clarkson’s status as an independent contractor or mine operator. The Commission
did not address this issue in Calmat “[b]ecause the alleged violations
involve an independent contractor performing work on mining equipment under the
direction of a mine employee in a dual-use area[.]” Id at 624. Clarkson is
not an independent contractor and did not work at the direction of APAC or
utilize mining equipment. In Calmat, moreover, MSHA cited the mine
operator and not its independent contractor. Id. The Commission’s
analysis in Calmat does not consider the independent contractor status
of an entity; it also does not suggest that MSHA has jurisdiction over
Clarkson.

[4] I do not reach the
issue of whether MSHA has jurisdiction to cite APAC for actions of Clarkson
employees or for actions of any entity at the tarping facility; the issue before
me is whether MSHA has jurisdiction to cite Clarkson as an independent
contractor.

[5] The Secretary
argues that his interpretation of the Act should be afforded deference and MSHA
should have jurisdiction over Clarkson; I do not afford that deference. The language
of the Act is clear; for MSHA to exercise jurisdiction, an entity must be an
operator or independent contractor. Clarkson performed no services at a mine
and therefore cannot be an operator or independent contractor. Even if the
language were ambiguous, furthermore, the Secretary’s interpretation could not
be afforded deference because it is unreasonable. Bowles v. Seminole Rock
& Sand Co., 325 U.S. 410, 414 (1945); Auer v. Robbins, 519 U.S.
452, 461 (1997); Udall v. Tallman, 380 U.S. 1, 18 (1965). The
Secretary’s interpretation would give MSHA jurisdiction over every person and
entity who steps onto mine property, from children on field trips to trespassers.

[6] The Secretary
argues that customers of a mine are subject to MSHA jurisdiction. He cites El
Paso Rock Quarries, Inc., an ALJ decision that is not binding upon me. 1
FMSHRC 2046 (Dec. 1979). That decision, furthermore, does not support the
Secretary’s argument. El Paso Rock addresses citations issued by MSHA to
a mine operator and not a customer or contractor. 1 FMSHRC at 2048. The Secretary
cites numerous decisions that do not support his position. The Secretary
ignores Clarkson’s status as an independent contractor.