Midwest Fuels, Inc. v. Secretary of Labor and Secretary of Labor v. Midwest Fuels, Inc.

Plain-English summary

Midwest Fuels delivered diesel and other fuels to equipment at a portable crushing operation. MSHA cited the company because driver Travis Pearson had site-specific hazard training but no certified new-miner or experienced-miner training. Judge L. Zane Gill held that Part 46 clearly excludes delivery workers from the definition of miner, and that exposure to mining hazards makes a worker a miner on that basis only when the person is a construction worker. Pearson briefly entered the quarry to deliver fuel, performed no mining, repair, troubleshooting, or equipment-upkeep duties, and remained a delivery worker rather than a maintenance or service worker. Because he was not a miner under 30 C.F.R. § 46.2(g), Midwest Fuels had no duty to certify miner training under § 46.9(a). The Judge vacated both the citation and the related nonassessable section 104(b) order.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 46.2(g), 46.2(h), and 46.9(a)
• Outcome: Citation No. 8660952 and Order No. 8660955 were vacated.
• Key point: A driver who briefly enters a mine solely to deliver and dispense fuel is a delivery worker, not a miner or maintenance worker requiring comprehensive Part 46 training.

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

MIDWEST
FUELS, INC.,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

MIDWEST
FUELS, INC.,

Respondent

CONTEST
PROCEEDINGS

Docket
No. LAKE 2013-0046-RM

Citation
No. 8660952; 09/26/2012

Docket
No. LAKE 2013-0056-RM

Order
No. 8660955; 10/09/2012

Mine:
Plant No. 32

Mine
ID: 47-02405

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2013-0157-M

A.C.
No. 47-02405-307333 V480

Mine:
Plant No. 32

DECISION AND
ORDER

Appearances:               Barbara
Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner

Joshua
Schultz, Esq., Law Office of Adele Abrams, P.C., Beltsville, MD for Respondent

Before:                                    Judge
L. Zane Gill

This case arises from a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”). It involves one
104(a) citation, Citation No. 8660952, and one 104(b) order, Order No. 8660955,[1]
issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to Midwest Fuels, Inc. (“Midwest Fuels” or “Respondent”) at the Plant
No. 32 mine. 30 U.S.C. § 814(a), (b). The parties presented testimony and
documentary evidence at the hearing held in La Crosse, Wisconsin on April 1,
2014.[2]

For the reasons listed below, I vacate both
Citation No. 8660952 and Order No. 8660955.

Stipulations

At the hearing, the following
stipulations were incorporated into the record by reference: (Tr. 13:1-11)

1. This
   proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
   Review Commission and its designated Administrative Law Judges pursuant to sections
   105 and 113 of the Mine Act.

2. The
   individual whose signature appears in Block 22 of the Citation at issue in this
   proceeding was acting in his official capacity and as an authorized
   representative of the Secretary of Labor when the citation was issued.

3. A
   duly authorized representative of the Secretary served the Citations and
   terminations of the citations upon the agent of the Respondent at the date and
   place stated therein as required by the Mine Act, and the Citations and terminations
   may be admitted into evidence to establish their issuance.

4.         On
September 26, 2012, MSHA Inspector James Alan Hines (“Hines”) issued Citation
No. 8660952 to Midwest Fuels (The company’s legal name Midwest Industrial
Fuels, Inc., a Wisconsin corporation) pursuant to Section 104(a) of the Mine
Act at Plant #32. It alleged a violation of 30 C.F.R. § 46.9(a).

5. Plant

32, Mine ID No. 47-02405, is a portable crushing plant owned by Milestone

Materials, a division of Mathy Construction Company, a Wisconsin corporation
(“Mathy”). On September 25, 2012, Plant #32 was stationed in a quarry owned by Mathy
near Rochester, Minnesota, named the Hammond Quarry.

6.
        Under the heading and caption “Condition or Practice” the citation
alleged as follows:

Records of training have not been
provided for a miner fueling mining related equipment while on an active mine
site. These records were either New Miner or Experienced Miner training forms
depending on whichever one is appropriate and annual refresher and task
training records. These records have been requested and confirmed to be
non-existent through Corporate Counsel and the Corporate Safety Officer.
Without these records, MSHA cannot confirm compliance with this standard.

7. The
   citation was designated non-significant/substantial, the occurrence of injury
   or illness deemed “no likelihood” and “no lost workdays,” and the operator’s
   alleged negligence determined to be moderate.

8.         Midwest
Fuels delivers various fuels, including propane, home heating oil, diesel fuel,
gasoline, kerosene, and lubricants and fuels equipment at private residences,
businesses, farms, mines, construction sites and trucking companies.

9.         Travis
Pearson (“Pearson”) is a fuel delivery truck driver employed by Midwest Fuels.
Pearson began his employment with Midwest Fuels on May 3, 2010. His job is to
deliver fuel and fuel equipment to private residences, businesses, farms,
mines, construction sites and to trucking companies, in and around Rochester,
Minnesota. The delivery sites are regulated by either OSHA or MSHA.

10. On
    September 25, 2012, the day of the MSHA inspection, Pearson was delivering fuel
    to various types of equipment and tanks, located in and around Rochester, Minnesota,
    including equipment in the Hammond Quarry. At the time, Pearson was one of four
    Midwest Fuels employees responsible for delivering and fueling equipment in the
    Hammond Quarry. Pearson and the three other Midwest Fuels employees who fuel equipment
    performed substantially the same tasks.

11.       While
stationed at the Hammond Quarry in September of 2012, Plant #32 was operating five
days a week and was fueled each day. During that same time at the Hammond Quarry,
Plant #59, a Wash Plant, located 100 to 150 yards from Plant #32, was operating
five days a week and was being fueled every other day. Also, a stripping crew
operated, when needed, and was fueled as needed.

12. When
    Pearson arrived to deliver fuel at the Hammond Quarry, he regularly stopped at the
    scale house to sign in and notify the Foreman that he was on the property. Upon
    entering the quarry, Pearson, who had a two-way CB radio in his fuel delivery
    truck, communicated with not only the miners in the Hammond Quarry, but also
    the customer trucks picking up product at the quarry.

13. Pearson
    had received Site Specific Hazard Awareness Training for the Hammond Quarry, in
    accordance with 30 C.F.R. § 46.11, on August 29, 2012.

14. On
    September 25, 2012, when Pearson arrived to fuel mining-related equipment at Plant

32, he drove into the pit unaccompanied for approximately ½ mile.

15. Customers
    and visitors who have received Site Specific Hazard Awareness Training travel
    into the pit unaccompanied.

16. The
    Hammond Quarry does not have a central fuel receptacle or storage tank, so
    Pearson parked in a central location in the Hammond Quarry, a distance of 40 to
    50 feet from Plant #32, where vehicles would approach him to receive fuel. The
    vehicles, such as loaders and haul trucks, would park and the motors would be
    turned off during fueling. Then, if necessary, Pearson would travel from Plant

32 to Plant #59, approximately 100 to 150 yards, to reposition his delivery

vehicle in order to fill that equipment.

17. On
    September 25, 2012, there were five miners present in the Hammond Quarry. Foreman
    Don Smith was operating Plant #32, with Loader Operators Brandon O’Connor and
    Steve Mueller. One loader was the Feed Loader, which was charging Plant #32 with
    previously blasted rock, while the other loader, which was the Take Away Loader
    was pushing material off the bench for the crusher. At the time, Plant #32 was
    crushing wash feed which was being transferred up to Wash Plant #59. There were
    no customer trucks near Plant #32. Meanwhile, Quarry Loader Jerome Blogett who was
    not assigned to either Plant was helping load wherever he was needed. Wash
    Plant #59 was being operated by Foreman Justin Hedger. After the material was
    washed it was stockpiled according to size. It was these stockpiles where
    customer trucks were loaded with material.

18. Customer
    trucks that picked up product from the stockpiles used the same roadways as Midwest
    Fuel employees who were delivering and fueling equipment.

19. When
    Pearson fueled Plant #32, he unrolled the hose from a reel on his delivery
    vehicle and stretched the hose about 40 feet to the fuel cap of Plant #32. The
    hose is a 1 3/8 inch wide rubber hose. Pearson hooked the
    hose on a hose hangar located on the side of the Plant and then climbed up a
    four-rung ladder. He then lifted the hose up to the fuel cap. The Plant was in
    operation while it was being fueled. At the time all of the moving parts on
    Plant #32 were guarded. The trough-shaped conveyor belt is approximately 5 feet
    away from the fuel cap. It took Pearson approximately 30 to 45 minutes total to
    fuel Plant #32.

20. On
    September 25, 2012, Pearson also fueled the generator by stepping up the
    stairs, with handrails, while carrying an industrial fuel hose into the trailer
    of the generator. The generator was operating while Pearson delivered fuel to
    it. The generator contains a diesel powered engine which requires fuel to
    operate. There are electrical connections in cabinets inside the generator
    trailer.

21.       Prior
to September 25, 2012, Pearson had received the U.S. Department of Transportation
(“DOT”) HazMat driver training to prepare commercial truck drivers to transport
hazardous materials, annual DOT Facility & Transportation Security, DOT Driver
Training, DOT HAZMAT Rail Training, DOT Function Specific Training and DOT
Hazardous Materials General Awareness Training.

22. Prior
    to September 25, 2012, Pearson had also received OSHA training annually covering
    the following subjects: First Aid, Fall Protection and Prevention, Respiratory Protection,
    Personal Protective Equipment, Powered Industrial Truck, Hazardous Energy
    Control (Lockout/Tagout), Confined Space, Hearing Conservation, Hazard Communication
    Standards, Fire Prevention, Electrical general Safety Awareness, Storm Water
    Training, Shop and Welding Safety, Incident Reporting, General Safety Awareness
    (weather), Vehicle Safety, Avoiding Falls and Slip Hazards, Housekeeping, Safe
    Lifting, Using Ladders Safely and Underground Utilities Awareness.

23. Midwest
    Fuels has not certified either New Miner training pursuant to 30 C.F.R. § 46.5 or
    Newly-hired experienced miner training pursuant to 30 C.F.R. § 46.6 for
    Pearson.

24. Pearson
    does not perform mine development, drilling, blasting, extraction, milling, crushing,
    screening, or sizing of minerals at a mine; repair of mining equipment; or associated
    haulage of materials within the mine from these activities.

25. On
    April 14, 2009, MSHA Inspector James Hines issued Citation No. 6494042 against Milestone
    Materials Div./Mathy Construction for failing to provide Greg Hall, a fuel delivery
    truck driver for Midwest Fuels, with 24-hour new miner training in violation of
    30 C.F.R. § 46.5. After the hearing was adjourned, but before Judge Barbour
    issued a decision, the Secretary vacated the citation. From August 4, 2009,
    through September 26, 2012, Midwest Fuels continued to deliver fuel to various
    quarries and MSHA has not issued citations to Midwest Fuels for a violation of
    30 C.F.R. §§ 46.5, 46.6, 46.8, or 46.9.

26.      
Pearson performs no duties other than delivering fuel to fuel receptacles and
fueling equipment.

27. Pearson’s
    job duties do not include repair of client vehicles or equipment at mine sites
    or any delivery work sites.

Jt.
Stip.

The
Arguments

The Secretary argues that under the
plain meaning of the cited regulation, Midwest Fuels is liable for failing to
produce certification of Pearson’s new or experienced miner training. He argues
that Pearson should be considered a “miner” because he fuels the crusher,
generator, and loaders at an active mine site five days a week, in the same
general vicinity as miners engaged in mining operations. (Sec. Br. at 8-9) In
doing so, Pearson is exposed to hazards of mining operations, such as slip and
fall, electrical hazards, noise, moving machine parts, traffic patterns, and
flying material. Id.

Alternatively, the Secretary argues that
Pearson should be considered a maintenance or service worker. The Secretary argues
that Pearson is a service worker, not a mere vendor or delivery worker who is
not required to obtain new miner training, because refueling mine machinery is
a “service” that Midwest Fuels provides to meet the operational needs of the
mine. (Sec. Br. at 15-18) Additionally, the Secretary argues that Pearson’s
refueling work keeps the machinery in functioning order and is necessary to maintain
operations at the plant. Id. Thus, Pearson’s fueling activities should be considered
“maintenance of mining equipment.” Id.

Because both miners and maintenance or
service workers are required to undergo comprehensive new or experienced miner
training, the Secretary argues that Midwest Fuels is required to produce
records of Pearson’s new miner training and is liable for the failure to do so.
Id.

Midwest Fuels argues that its fuel truck
drivers are delivery workers or vendors under the Part 46 regulations, and should
not be considered miners. (Resp. Br. at 7-11) Because Pearson was not a miner,
the Respondent contends, he was not required to receive new miner training, and
Midwest Fuels did not violate the Part 46 training requirements. Id. In
response to the Secretary’s contention that Pearson was a miner because he was
exposed to the hazards of mining operations and was on the mine site for
frequent and extended periods, Midwest Fuels argues that the training
requirements do not apply to vendors and delivery workers, as those terms are defined
in section 46.2(g)(2). Id. Midwest Fuels further argues that Pearson
should not be considered a maintenance or service worker because his work at
the mine site was limited to delivering fuel and refueling equipment, which is
not maintenance work. Id. Finally, the operator argues that the
Secretary’s attempt to apply the training requirements for miners to Pearson is
arbitrary and capricious, and therefore not entitled to deference, because the
interpretation is inconsistent with prior history and enforcement. Id.
at 12-17.

Resolution of this dispute turns on whether
the definition of “miner” is clear or ambiguous under 30 C.F.R. § 46.2(g), and
whether Pearson’s classification as a miner was warranted.

Basic
Legal Principals

The Commission has found that when interpreting
the Secretary’s Regulations:

Where
the language of a regulatory provision is clear, the terms of that provision
must be enforced as they are written unless the regulator clearly intended the
words to have a different meaning or unless a meaning would lead to absurd
results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987);
Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). If,
however, a standard is ambiguous, courts have deferred to the Secretary’s
reasonable interpretation of the regulation. See Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1990); accord Sec’y of Labor v.
Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s
interpretation of its own regulation is of ‘controlling weight unless it is
plainly erroneous or inconsistent with the regulation.”’) (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). The Secretary’s
interpretation of her regulations is reasonable where it is “logically consistent
with the language of the regulation[s] and … serves a permissible regulatory
function.” General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995)
(citations omitted).

Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July
2002); Consolidation
Coal Co., 18
FMSHRC 1541, 1545 (September 1996). “It is only when the plain meaning is
doubtful or ambiguous that the issue of deference to the Secretary’s
interpretation arises.” Pfizer Inc. v. Heckler, 735 F.2d 1502,
1509 (D.C. Cir. 1984); Bluestone Coal Corp., 19 FMSHRC 1025, 1028 (June
1997). Further, “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, 2011 WL 7463296, at *5 (Dec. 2011) (ALJ Paez) (quoting Lodestar
Energy, 24 FMSHRC at 693). 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 Coal Corp.,
19 FMSHRC at 1029; Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996).

The Supreme Court has said
that when reviewing a challenged interpretation of regulatory language,
the Secretary’s interpretation of his own regulation is “controlling unless
plainly erroneous or inconsistent with the regulation.” See
Auer v. Robbins, 519 U.S. 452, 461 (1997). However, “Auer
deference is warranted only when the language of the regulation is
ambiguous.” Christensen v. Harris Cnty., 529 U.S. 576, 588, (2000). Courts
determine the plainness or ambiguity of a regulation by referring to “the
language itself, the specific context in which that language is used, and the
broader context as a whole.” Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997).

For the reasons set forth below, I find
that the meaning of 30 C.F.R. § 46.2(g) is clear and unambiguous, and the
Secretary's interpretation of the standard is not entitled to deference.

Definition
of “Miner” under 30 C.F.R. § 46

Midwest Fuels was cited for a violation
of 30 C.F.R. § 46.9(a), which requires each operator to “record and certify on
MSHA Form 5000-23, or on a form that contains the information listed in
paragraph (b) of this section, that each miner has received training
required under this part.” (emphasis added) In order for the Secretary to
prevail, he must first prove that Pearson, a fuel delivery truck driver, is a “miner”
as defined by 30 C.F.R. § 46.2(g).

In Section 46.2(g) a miner is “[a]ny
person, including any operator or supervisor, who works at a mine and who is
engaged in mining operations […] and [a]ny construction worker who is exposed to
hazards of mining operations.” 30 C.F.R. § 46.2(g)(1). “Mining operations”
cover “mine development, drilling, blasting, extraction, milling, crushing,
screening, or sizing of minerals at a mine; maintenance and repair of mining
equipment; and associated haulage of materials within the mine from these
activities.” 30 C.F.R. § 46.2(h)

Further, the definition of “miner” “does
not include scientific workers; delivery workers; customers
(including commercial over-the-road truck drivers); vendors; or
visitors. This definition also does not include maintenance or service workers
who do not work at a mine site for frequent or extended periods.” 30 C.F.R. §
46.2(g)(2) (emphasis added).

Persons who are not miners under Section
46.2 are required to receive site-specific hazard awareness training for those
areas of the mine property where mining-related activity takes place. Training
and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel,
Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines,
64 Fed. Reg. 53080-01, 53126. This includes “office or staff personnel;
scientific workers; delivery workers; customers, including commercial
over-the-road truck drivers; construction workers or employees of
independent contractors who are not miners under §46.2; maintenance or
service workers who do not work at a mine site for frequent or extended
periods; and vendors or visitors.” Id. (emphasis added).  

The plain language of this regulatory
provision is clear and unambiguous. The provisions must be enforced as they are
written, and I
must look to the ordinary meaning of the terms used in the regulation. Bluestone
Coal Corp., 19 FMSHRC at 1029; Lodestar Energy, Inc., 24 FMSHRC at
692; Pfizer Inc. v. Heckler, 735 F.2d at 1509. The language
of 30 C.F.R. § 46.2(g) means exactly what it states.  It explicitly excludes
“scientific workers; delivery workers; customers (including commercial
over-the-road truck drivers); vendors; or visitors […] [and] maintenance or
service workers who do not work at a mine site for frequent or extended periods”
from the definition of a “miner.” This is plain and unambiguous
language whose meaning is apparent from any reasonable reading of the
regulation. Indeed, in promulgating the regulation, the Secretary made clear
what the definition of “miner” included and excluded, and what the definition
of “mining operations” included.

According to the Merriam Webster online dictionary,
the ordinary meaning of the word “delivery” is the “act of taking something to
a person or place,” and “delivery man” means a “person
who delivers wholesale or retail goods to customers usually over a
regular local route.” http://www.merriam-webster.com/dictionary/delivery%20man;
http://www.merriam-webster.com/dictionary/delivery. Further, the ordinary
meaning of “maintain” is “to keep in an existing state (as of repair,
efficiency, or validity); preserve from failure or decline,” and “maintenance”
is “the upkeep of property or equipment.” http://www.merriam-webster.com/dictionary/maintain;
http://www.merriam-webster.com/dictionary/maintenance.

Despite
the plain meaning of the regulation and the ordinary meaning of the words “to
maintain” and “maintenance,” the Secretary argues that his interpretation of
the “maintenance or service worker” exception to the definition of “miner”
is reasonable and must be accorded deference. As discussed below, I have
carefully considered the Secretary's arguments in this regard but cannot give them
any credence.

A
Fuel Delivery Truck Driver, Is Not A “Miner” Under 30 C.F.R. § 46

The Secretary argues that Pearson should
be considered a miner because he works at an active mine site near miners
engaged in mining operations, and as such is exposed to the hazards of mining operations.
The Secretary proffers that “[a] person’s status as a miner turns on whether he
is engaged in, or exposed to the hazards of, ‘mining operations.’” (Sec. Br. at
9) This is not true. While the definition of a “miner” does turn on whether he
or she is engaged in “mining operations,” 30 C.F.R. § 46.2(g)(1)(i), it does
not turn on whether a “miner” is “exposed to hazards of mining operations.” 30
C.F.R. § 46.2(g)(1)(ii). The only mention of a person being a “miner” by exposure
to the hazards of mining operations is when that person is a “construction
worker.” 30 C.F.R. § 46.2(g)(1)(ii) At no point in the hearing or in his post
hearing brief did the Secretary argue that Pearson was a “construction worker.”
The Secretary is trying to improperly conflate two distinct sections of the regulation.
I reject the Secretary’s argument that Pearson was a miner because he worked at
an active mine site near miners engaged in mining operations, and as such was
exposed to the hazards of mining operations.

Additionally, the Secretary stipulated that
Pearson did not engage in “mining operations” such as “mine development, drilling,
blasting, extraction, milling, crushing, screening, or sizing of minerals at a
mine; repair of mining equipment; or associated haulage of materials within the
mine from these activities.” (Jt. Stip. at 24 (citing 30 C.F.R. § 46.2(h))). Therefore,
under Section 42.2(g)(1), I cannot find that Pearson engaged in “mining
operations.”

A fuel delivery truck driver also comes under
the exception to the definition of “miner.” The regulation makes it very clear
that the definition of “miner” “does not include scientific workers; delivery
workers; customers (including commercial over-the-road truck drivers);
vendors; or visitors.” 30 C.F.R. § 46.2(g)(2) (emphasis added). These
exclusions to the definition of “miner” are included without reference to the exposure
of mining hazards. In fact, as plainly written, they are explicit exclusions
with no limitations. Indeed, these exclusions in the definition of “miner” in
30 C.F.R. § 46 were described in the Final Rule published by MSHA in September,
1999, where MSHA stated “we intended to exclude customers and delivery
personnel from the definition of ‘miner’ […]. Section 42.2(g)(2) also
indicates that commercial over-the-road truck drivers may be considered
“customers” under the final rule and excluded from the definition of ‘miner.’”
64 Fed. Reg. 53080-01, 53096.

In the stipulations submitted to the
court and the testimony heard at the hearing, the Secretary admitted that
Pearson was a delivery truck driver employed by Midwest Fuels to deliver fuel
to the Hammond Quarry. (Jt. Stip. at 9, 10; Tr. 36:11-21) On September 25,
2012, the day of the MSHA inspection, Pearson was delivering fuel to equipment
in the Hammond Quarry.[3]
(Id. at 10) It took Pearson approximately thirty to forty-five minutes to
fuel Plant #32. (Id. at 19) During this time, Pearson parked his truck
in a central location in the Hammond Quarry where vehicles, such as loaders and
haul trucks, approached him to receive fuel. (Id. at 16) On the date the
citation was issued, Pearson also fueled the diesel powered generator by pulling
up to the generator, climbing a ladder with handrails, and hooking up the fuel
hose to the fuel intake on the generator. (Id. at 20) These actions are
clearly consistent with a delivery operation, which is purposely
excluded from the definition of “miner.” I find that Pearson was a “delivery
worker” because he entered the mine property briefly to deliver fuel.[4]
As a fuel delivery truck driver, Pearson was not a “miner” under Part 46 of the
regulations.[5]

Pearson
Was Not A “Maintenance or Service Worker” Under 30 C.F.R. § 46

In Section 46.2(g)(2), the definition of
“miner” “does not include maintenance or service workers who do not work at a
mine site for frequent or extended periods.” 30 C.F.R. § 46.2(g)(2). Nonetheless,
the Secretary argues that Pearson should be considered a maintenance or service
worker under Section 46.2(g)(2) because refueling mine machinery is a service
that Midwest Fuels provides to meet the operational needs of the mine. More
specifically, fueling is a service performed to keep mine machinery in “functioning
order” and is necessary to maintain plant operations. (Sec. Br. at 16) As a
result, Pearson’s fueling activities should be considered “maintenance of
mining equipment”[6]
despite the exclusion mentioned above.[7]

The case law cited by the Secretary in
support of categorizing Pearson as a maintenance or service worker involves
independent contractors. For example, Joy Technologies, 99 F.3d 991 (10
Cir. 1996) refers to construction workers who fall under 46.2(g)(1)(ii) and not
(g)(1)(i). Further, both Joy Technologies and Otis Elevator, 921
F.2d 1285 (D.C. Cir. 1990) equate “service” work with repairing and
troubleshooting problems with equipment. Id. Additionally, Musser
Engineering, 32 FMSHRC 1257, 1270 (Oct. 2010), categorized the company in
that case as an independent contractor because it performed engineering
support, mapping, and surveying services. Despite the fact that the Secretary
is not claiming Midwest Fuels is an independent contractor, the work done in
the cases cited by the Secretary involve much more than delivering fuel for equipment
at a mine, e.g., doing repairs, troubleshooting, providing engineering, mapping,
and surveying services. Therefore, I cannot adopt the Secretary’s reasoning
that these cases show that Pearson was servicing or maintaining equipment to
keep it in functioning order. Delivering fuel and fueling equipment are quite
different than doing equipment upkeep, repair, troubleshooting, or any form of
engineering or mapping services.

Additionally, MSHA’s Program Policy
Manual[8]
describes maintenance or repair work as “upkeep or alteration of equipment or
facilities. Replacement of a conveyor belt would be considered maintenance or
repair.” III MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 46,
at 37 (2006). Further, according to MSHA’s Module Number 12 of Instruction
Guide Number 43 for surface metal and nonmetal field maintenance of machinery:

Field maintenance is performed by such
personnel as mechanics, electricians, and their helpers; and by greasers or
oilers, and the operators of various machines. Maintenance/repair work may
involve: 1. Inspecting, troubleshooting, evaluating condition 2. Towing 3.
Deenergizing, securing, releasing pressure 4. Removing and replacing guards or
safety devices 5. Lubrication 6. Manual or powered materials handling 7. Use of
hand and power tools 8. Welding and cutting 9. Changing component parts 10. Inspecting
and testing completed work

On-The-Job
Training Modules For Surface Metal And Nonmetal Mines Field Maintenance of
Surface Machinery, at 2, available at http://www.msha.gov/safetypro_in_a_box/IG%2043%20
OJT%20training%20modules%20surface%20MNM/IG%2043%20OJT%20modules%20Surface%20MNM%20Full%20Text.pdf.

The Secretary stipulated that Pearson
performed no duties other than delivering fuel to fuel receptacles and fueling equipment,
and his job duties did not include repair of client vehicles or equipment at
mine sites or any delivery work sites. (Jt. Stip. at 26-7) At no time had Pearson
ever been asked to help fix equipment at the Hammond Quarry, or any quarry.
(Tr. 103:12-17) None of the Midwest Fuels truck drivers performed any service
or maintenance of mining equipment at the mines, nor were they trained to do
so. (Tr. 134:1-6) Willie Hardin,[9]
safety director for Mathy, testified that Midwest Fuels drivers did not perform
service or maintenance at Milestone Quarries. (Tr. 153:21-23)[10]

From this it is sufficiently clear that Pearson
did not engage in the upkeep or preservation of equipment at the Hammond
Quarry. A fuel delivery truck driver who delivers fuel and fuels equipment is
not a “maintenance or service worker” under the plain meaning of Section
46.2(g)(2)[11]
and is not a “miner” under Section 46.2.

Conclusion

Midwest Fuels was cited for allegedly
violating 30 C.F.R. § 46.9(a), which requires each operator to record and
certify that each miner has received requisite miner training. The
Secretary failed to prove that Pearson, a fuel delivery truck driver, was a miner
as defined by 30 C.F.R. § 46.2(g). Therefore, Midwest Fuels cannot be cited for
a violation of 30 C.F.R. § 46.9(a).

WHEREFORE, Citation No.
8660952 and Order No. 8660955 are VACATED.

/s/
L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Barbara
M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S.
Dearborn, 8th Floor, Chicago, IL 60604

Joshua
Schultz, Esq., Law Office of Adele Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, MD 20705

[1] Order No.
8660955 is a non-assessable 104(b) order.

[2] At the end of
the Secretary’s case-in-chief, Midwest Fuels moved to dismiss the case. (Tr.
76:22-24) I denied the motion. (Tr. 79:6-23)

[3] At the time,
Pearson was one of four Midwest Fuels employees responsible for delivering and
fueling equipment in the Hammond Quarry. (Jt. Stip. at 10)

[4] Although not
necessary for the purposes of this case, I also find that Pearson was a
“commercial over-the-road truck driver” because he was required to have a CDL
driver’s license in order to work as a fuel delivery truck driver. (Tr.
92:20-24)

[5] The Respondent
also made the argument that Midwest Fuels is a “vendor” and as such also falls
under Section 46.2(g)(2). I find it unnecessary to address this point because I
found that Pearson is a “delivery worker.”

[6] Hines believed
Pearson’s activity required new or experienced miner training because of
exposure to hazards, time spent on site, and that by fueling the equipment,
Pearson went beyond simple delivery of fuel. (Tr. 74:21-72:20) This is because
in Hines’ experience, delivery workers at mines go to a designated location,
drop off parts, and leave. (Tr. 40:14-22)

[7]
The
Secretary’s argument is an example of a logical fallacy referred to as reductio
ad absurdum or argumentum ad absurdum. This type of
argument seeks to demonstrate that a statement is true by showing that an
absurd result would follow from its denial, i.e., the underlying
thesis must be accepted because rejecting it would be untenable. http://www.iep.utm.edu/reductio/.
According to the Secretary’s argument, Pearson provided fuel without which the
mining equipment would not work and mine production would cease, therefore
Pearson “maintained” the equipment. It is clear that the equipment would not
function without fuel, but it does not follow that because Pearson delivered
the fuel, he was doing maintenance or service work.

[8] The Commission
has long held that the PPM is not binding on the Secretary or the
Commission. See D.H. Blattner & Sons, Inc., 18 FMSHRC
1580, 1586 (Sept. 1996) (quoting King Knob Coal Co., 3 FMSHRC 1417,
1420 (June 1981)). Nevertheless, the PPM is a policy statement that,
in this instance, complements the Secretary's regulation.

[9] In September
2012, Hardin was the safety director for Mathy. (Tr. 152:2-11) At the time of
the hearing Hardin was semi-retired. (Tr. 152:3-5) Hardin has been Mathy’s
safety director for asphalt since 1987 and for aggregate since 1994 or 1995.
(152:12-13) At Mathy, Hardin was in charge of over 400 mining facilities. (Tr.
152:15-25)

[10] Hardin
understood “service or maintenance” to mean activities that prolong and
preserve the life of equipment, or the replacement or modification of
equipment. (Tr. 153:24-154:4)

[11] Even assuming
arguendo that Pearson was a maintenance or service worker, he still would not
be covered under Section 46.2 (g)(2). The Secretary claimed that Pearson was at
the mine “frequently,” thus meeting the second prong of the definition. While
Pearson was present at the mine approximately five days a week, each day he was
only on the mine site thirty to forty-five minutes, delivering and fueling the
equipment and generator. (Jt. Stip. at 11, 19) Therefore, Pearson was on the
mine site for a very short period of time during each visit, and as such, does
not fall under the exception to 30 C.F.R. § 46.2(g)(2).