Secretary of Labor v. Carmeuse Lime & Stone (ALJ decision, September 13, 2010)

Plain-English summary

MSHA sought a $138 penalty after an Excel Air & Oil Equipment worker stood on a bulk oil tank without fall protection while installing a flow meter. The Secretary first moved to dismiss because she believed Excel was a contractor, then sought to withdraw that motion after treating Excel as a vendor. Carmeuse opposed withdrawal and maintained that Excel was a contractor. Judge Jerold Feldman held that the label did not matter because an independent contractor performing services at a mine is an operator under the Mine Act. He also held that the Secretary has unreviewable prosecutorial discretion to cite the mine owner, the contractor, or both, and allowed withdrawal of the dismissal motion.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.15005
• Outcome: The Secretary's motion to withdraw her earlier dismissal motion was granted, leaving the penalty case pending.
• Key point: Whether a service company is called a vendor or contractor does not prevent the Secretary from citing the mine owner for the contractor's alleged violation.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

September 13, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner

v.

CARMEUSE LIME & STONE,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. KENT 2009-9

A.C. No. 15-07101-17936449-M

Maysville Mine

ORDER GRANTING THE SECRETARY’S MOTION

FOR WITHDRAWL OF THE MOTION TO DISMISS

This captioned proceeding is before me upon a petition for assessment of civil penalty filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act) filed against Carmeuse Lime & Stone (Carmeuse). 30 U.S.C. § 815(d). The petition seeks to impose a civil penalty of $138.00 in satisfaction of Citation No. 6510263. This citation alleges a violation of mandatory safety standard in 30 C.F.R. § 57.15005 that requires safety belts to be worn where there is a danger of falling. Specifically, the citation states, in pertinent part, “[a] vendor/subcontractor employee from Excel Air & Oil Equipment, Inc., [Excel] was observed standing atop the Mobiltrans HD 30 bulk oil tank while not using suitable fall protection. He was installing a flow meter in one of the delivery lines . . . .”

On May 7, 2010, the Secretary filed a motion to dismiss this case, based on the erroneous belief that the case should be dismissed because Excel was a contractor. On May 13, 2010, the Secretary filed a motion to withdraw her original motion to dismiss because she now believes that Excel is a vendor. On May 25, 2010, Carmeuse filed a motion in opposition to the Secretary’s motion to withdraw her motion to dismiss admitting that Excel is a contractor. Section 3(d) of the Mine Act provides that a mine operator includes any independent contractor performing services at a mine. 30 U.S.C. § 802(d).

Whether Excel is a vendor or a contract is a distinction without a difference. Excel is an independent contractor (mine operator) as contemplated by section 3(d) by virtue of the performance of its services at the mine.

The Court of Appeals for the D.C. Circuit held that the Secretary’s decision to cite the owner-operator of a mine and/or its independent contractor, is an exercise of her prosecutorial discretion that is unreviewable. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006). Consequently, the Secretary may cite Carmeuse for alleged safety violations of its

independent contractor Excel. Accordingly, IT IS ORDERED that the Secretary’s motion to withdraw its motion to dismiss IS GRANTED.

Jerold Feldman

Administrative Law Judge

Distribution:

Melody S. Wesson, Conference & Litigation Representative, U.S. Department of Labor, MSHA,

135 Gemini Circle, Suite 212, Birmingham, AL 35209

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222

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