Secretary of Labor v. Hammerlund Construction, Inc.

Plain-English summary

Hammerlund operated a portable crusher at a county-owned gravel pit and disputed whether MSHA jurisdiction extended beyond the crusher to the unprocessed dump and processed stockpile. Judge Jacqueline R. Bulluck found that Hammerlund retrieved material from the dump, controlled the crushing and conveying process, maintained the finished stockpile, repaired berms, and could stop work for safe sampling. Those activities gave the contractor operational control over areas integral to its crushing work, even though the county owned the land and also used its own equipment and employees. Under the parties' stipulations, the jurisdiction ruling established violations for missing site-specific hazard training and inadequate berms at a six-to-eight-foot drop. Both S&S citations were affirmed with low negligence, and penalties of $108 each totaled $216.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.11(a), 56.9300(a)
• Outcome: The Secretary won summary decision, both citations were affirmed, and Hammerlund was ordered to pay $216.
• Key point: MSHA jurisdiction follows operational control over areas integral to mineral processing, not merely land ownership or the physical boundary of the crusher.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

HAMMERLUND
CONSTRUCTION, INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2014-124-M

AC No. 21-03479-335864

Mine: Harris Pit - Portable Crusher

SUMMARY DECISION

Before:                        Judge Bulluck

This case is before me upon a
Petition for the Assessment of a Civil Penalty filed by the Secretary of Labor
(the “Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Hammerlund Construction, Incorporated (“Hammerlund”), pursuant
to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the
“Act”), 30 U.S.C. § 815. The Secretary seeks a total penalty of $216.00 for two
alleged violations of his mandatory safety standards regarding site-specific
hazard awareness training, and roadside berms or guardrails.

The Secretary filed a Motion to
Plead in the Alternative alleging that Hammerlund also violated a mandatory
safety standard regarding the unloading of equipment or supplies. Hammerlund
responded by filing its Motion for Summary Decision and Opposition to the
Secretary’s Motion to Amend the Pleadings (“Resp’t Mot. I”), supported by
Affidavits of Daniel Rehkamp (“Hamm. Ex. 1”) and David Nartnik (“Hamm. Ex. 2”),
and the Bid Request from St. Louis County Public Works (“contract”). I granted
the Secretary’s Motion to Plead in the Alternative. The Secretary, thereafter,
filed a Motion for Summary Decision (“Sec’y Mot.”), supported by the
Declaration of MSHA Inspector Wilbert Wayne Koskiniemi, his inspection notes,
and the contested citations. (“Gov. Exs. 1 through 5”). Hammerlund subsequently
filed its Supplemental Points and Arguments (“Resp’t Mot. II”), and Joint Stipulations
(“Jt. Stips.    1 through 69”).

As a preliminary matter, I note
that during a conference call with the parties on May 29, 2015, Hammerlund
agreed that should I find that MSHA had jurisdiction over the portable crusher,
unprocessed material dumpsite, and processed material stockpile, rather than
the portable crusher alone, it would accept the citations, as issued, and pay the
Secretary’s proposed penalties in-full. See Jt. Stips. 60, 61. Accordingly,
the parties’ Cross-Motions raise one issue for resolution in this case: whether
issuance of the citations was a valid exercise of MSHA’s jurisdiction under the
Act.

I.                  
Standard of Review Governing Summary Decision

Commission Rule 67(b) states that a
Judge shall only grant a motion for summary decision “if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows: (1) [t]hat there is no genuine issue as to any material
fact; and (2) [t]hat the moving party is entitled to summary decision as a
matter of law.” 29 C.F.R.      § 2700.67(b).

Analogizing that standard to the
U.S. Supreme Court’s interpretations of Rule 56 of the Federal Rules of Civil
Procedure, the Commission calls upon Judges to look to the whole record ‘“in
the light most favorable to . . . the party opposing the motion,’ and . . . ‘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 N.Y., Inc., 29 FMSHRC 4, 9
(Jan. 2007) (quoting Poller v. Columbia Broadcasting Sys., Inc., 368
U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)).

For the reasons set forth below, I
conclude that the Secretary is entitled to summary decision as a matter of law
on the issue of whether MSHA acted within its jurisdiction. Accordingly, I AFFIRM
Citation Nos. 8740638 and 8740639, as issued, and order payment of the
Secretary’s proposed penalties.

II.        Joint Stipulations

The parties stipulated as follows:

1.         Hammerlund
Construction, Inc. (“Hammerlund”), is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et. seq. (the
“Mine Act”).

2.         The
Administrative Law Judge has jurisdiction over this proceeding pursuant to
section 105 of the Act.

3.         Inspector
Wilbert Wayne Koskiniemi, a representative of the Mine Safety and Health Administration
(“MSHA”), was acting as a duly authorized representative of the United States
Secretary of Labor, assigned to MSHA, and was acting in his official capacity
when conducting the inspection and issuing the citations from the docket at issue
in this proceeding.

4.         The
citations at issue in this proceeding were properly served upon Hammerlund as
required by the Mine Act, and were properly contested by Hammerlund.

5.         Hammerlund
owns the portable crusher with Mine ID 21-03479 (the “crusher”) that was cited
by Inspector Koskiniemi on August 13, 2013. The portable crushing plant travels
between multiple locations to perform material processing.

6.         At all
relevant times, the products of the Harris Pit entered commerce, or the mine
operations or products affected commerce, within the meaning of the Mine Act,
30 U.S.C. §§ 802(b) and 803.

7.         In 2013,
Hammerlund was contracted by the St. Louis County, Minnesota Public Works
Department to provide crushing services at four St. Louis County properties.

8.         The
“Request for Bids” or contract which is attached to Hammerlund’s Motion for
Summary Decision is a true copy of the bid document and describes the project
for which Hammerlund was awarded the contract.

9.         Under the
contract, Hammerlund was contracted to crush, screen and stockpile Aggregate
Base, Class 5 (Modified) material at four pits owned and operated by St. Louis
County.

10.       The
contract provided that Hammerlund would produce a total amount of 112,600 tons
of Class 5 (Modified) material for use and sale by St. Louis County and several
other public entities.

11.       Hammerlund
anticipated the entire crushing project (at all four of the County’s pits) to
last about two weeks.

12. Citations
    Nos. 8740638 and 8740639 both allege violations that occurred at the Harris
    Pit.

13.       The Harris
Pit is owned by St. Louis County.

14. Inspector
    Koskiniemi conducted an E01 inspection of Mine ID 21-03479.

15.       On August
13, 2013, Inspector Koskiniemi issued Citation No. 8740638 to Hammerlund
Construction at Mine ID 21-03479.

16.       Citation
No. 8740638 was issued under 30 C.F.R. § 46.11(a) for failure to provide
site-specific hazard awareness training before any person designated under the
section was exposed to mine hazards.

17.       On August
13, 2013, Inspector Koskiniemi issued Citation No. 8740639 to Hammerlund
Construction at Mine ID 21-03479.

18.       Citation
No. 8740639 was issued under 30 C.F.R. § 56.9300(a) for failure to provide and
maintain berms or guardrails on the banks of roadways where a drop-off existed
of sufficient grade or depth to cause a vehicle to overturn or endanger persons
in equipment.

19.       There were
multiple stockpiles at the Harris Pit. Unprocessed material was maintained in
stockpiles to be transported to the crusher. Material processed by the crusher
was fed into stockpiles by Hammerlund conveyors. Processed and unprocessed
stockpiles were located on opposite ends of the crushing plant.

20.       The
material dumpsite and location of the unprocessed stockpile was approximately
80-100 feet from the crusher.

21.       Under the
contract, St. Louis County designated where the stockpiles at each location
were to be located.

22.       The
material to be crushed by Hammerlund was provided by St. Louis County “without
cost” to Hammerlund.

23. Under the
    contract, Hammerlund was to incorporate existing stockpiles of bituminous and
    concrete at some of the County’s pits into the final aggregate base materials
    produced. At the Harris Pit, the stockpiled material included bituminous, but
    not concrete.

24.       Under the
contract, “additional materials required to augment existing soils shall be
hauled and stockpiled within the limits of the pit by the County prior to the
start of production.” “If stockpile locations are not finalized at the time of
pre-bid review, the contractor’s bid price included the cost of retrieving and
transporting augmenting materials from anywhere within the pit limits.”

25.       Under the
contract, Hammerlund was to “retrieve materials from existing stockpiles
located within the limits of the pit and transport to the crusher location for
inclusion into the final product. The District Superintendent will identify the
bituminous and concrete stockpiles to be utilized during pre-bid reviews.”

26.       Under the
contract, “[w]hen crushing operations begin, the Contractor assumes liability
and responsibility for maintaining compliance with all rules and regulations
prescribed by OSHA, MSHA as well as the County Planning and Zoning Department.”

27.       At the
time of the inspection, Hammerlund owned and operated the following equipment
at the Harris Pit: a feed hopper/jaw crusher, 2 conveyors, a cone
crusher/screener, a stacker conveyor, an operations booth, a genset trailer, a Caterpillar
246(c) skid-steer, and a Caterpillar 988(h) front-end loader.

28.       In
accordance with the contract, Hammerlund’s liability terminated when all
equipment was removed from the pit.

29.       In
accordance with the contract, if Hammerlund identified a specific type of
augmenting material [that] was insufficient in quantity, Hammerlund was
required to notify the District Superintendent immediately to discuss a course
of action to remedy the situation.

30.       During the
life of the contract, Hammerlund agreed to provide and “have at all times” a
competent superintendent in charge of the gravel pit sites who would be
personally available at the site of work within 24 hours’ notice.

31.       Under the
contract, “[g]ravel for the purposes of the contract shall be furnished by the
County without cost to the Contractor.”

32.       Under the
contract, all material would be obtained in County-designated pits as indicated
in the schedule of price sheets. “The material shall be stockpiled in a manner
so as to minimize segregation and promote a well-blended aggregate. All
operations necessary in building, shaping, or blending of the stockpile, shall
be considered incidental work and shall be included in the unit price for the
work.”  

33.       Under the
contract, the County designated hours of operation between 7:00 a.m. and 8:00
p.m., Monday through Saturday.

34.       Under the
contract, “the Contractor shall notify the District Superintendent at least 72
hours in advance of any proposed work in any pit as the Contractor mobilizes
between pits during the project.”

35.       St. Louis
County controlled access to the Harris Pit property, on which the Hammerlund
crusher was operating.

36.       Under the
contract, the St. Louis County District Superintendent was responsible [for]
“resolv[ing] all questions relating to pit operations and materials produced
which did not meet specifications.”

37.       Under the
contract, site preparation within the gravel pits was performed by St. Louis
County.

38.       Under the
contract, St. Louis County agreed to conduct site preparation by clearing, grubbing,
[and] stripping an area and/or face adequate to meet the contract quantities.

39.       Hammerlund
was required to notify the St. Louis County District Superintendent in writing
if the pit was not satisfactorily prepared.

40.       Hammerlund
was instructed by St. Louis County employees where to  set-up the portable
crushing plant.

41.       Hammerlund
used its front-end loader to bring materials from the stockpiles to the
portable plant for crushing.

42.       Only
Hammerlund employees operated the crusher and fed material into the portable
plant with the front-end loader.

43.       On or
around August 13, 2013, the crusher was conducting crushing operations at the
Harris Pit, when MSHA Inspector Koskiniemi conducted a regular inspection.

44.       At the
time the inspection began, the crusher was in operation.

45.       At the
time of the inspection, Hammerlund had two employees on the site. One employee
monitored the portable plant; the second employee operated the front-end
loader.

46.       Other than
the two citations at issue here, Inspector Koskiniemi issued five citations on
August 13, 2013 to Hammerlund for safety violations on the transfer conveyor,
cone crusher/screener feed conveyor and the stacker conveyor.

47.       After
Inspector Koskiniemi issued the violations on the crushing plant equipment,
Hammerlund shut down the crusher until abatement was completed.

48.       During his
inspection, the inspector observed two dump trucks owned and operated by St.
Louis County [that] delivered binding material to the stockpiles (“dumpsite”)
to use in production of Class 5 material.

49.       Hammerlund
did not provide site-specific hazard awareness training to St. Louis County
truck drivers prior to issuance of the citation.

50.       St. Louis
County also owned and operated a bulldozer that operated around the Harris Pit,
maintaining roadways and the dumpsite.

51.       Inspector
Koskiniemi observed the bulldozer pushing material into stockpiles at the
dumpsite and knocking down berms constructed by Hammerlund employees.

52.       The Inspector
would testify that during the inspection, he observed a St. Louis County
employee walk unaccompanied through the mine site to collect samples from
processed stockpiles while the crusher was in operation.

53.       Hammerlund’s
policy was that the crusher would stop operating or run without processing
material any time that samples were being obtained from the processed material
stockpile.

54.       Hammerlund’s
policy was that a Hammerlund employee would take a companion sample to any
sample taken by St. Louis County, in order to verify the accuracy of any sample
results taken by the County.

55.       Hammerlund
did not remove or transfer any material from the processed stockpiles.

56.       Under the
contract, acceptance of materials produced would be based upon individual tests
taken by the St. Louis County Superintendent from the stockpile.

57.       The
citations at issue in this proceeding were properly served upon Hammerlund as
required by the Mine Act, and were properly contested by Hammerlund.

58.       Hammerlund
demonstrated good faith in abating the violations.

59.       Without
Hammerlund admitting the propriety or reasonableness of the penalties proposed
herein, the proposed penalty of $216.00 will not affect the ability of
Hammerlund to continue in business.

60.       The
“Condition or Practice” section of Citation No. 8740638 is accurate and
describes a violation of 30 C.F.R. § 46.11(a).

61.       The
“Condition or Practice” section of Citation No. 8740639 is accurate and
describes a violation of 30 C.F.R. § 56.9300(a).

62.       The
gravity of Citation No. 8740638 is assessed as “Reasonably Likely” and “Fatal.”

63.       The
gravity of Citation No. 8740639 is assessed as “Reasonably Likely” and “Fatal.”

64.       The
“Number of Persons Affected” section of Citation No. 8740638 is assessed as
affecting one person.

65.       The
“Number of Persons Affected” section of Citation No. 8740639 is assessed as
affecting one person.

66.       Hammerlund’s
negligence with regard to Citation No. 8740638 was “Low.”

67.       Hammerlund’s
negligence with regard to Citation No. 8740639 was “Low.”

68.       A penalty
of $108.00 is appropriate for the condition alleged in Citation No. 8740638.

69.       A penalty
of $108.00 is appropriate for the condition alleged in Citation No. 8740639.

III.       Background

In early August of 2013, Hammerlund contracted
with St. Louis County, Minnesota Public Works Department to process, i.e., crush,
screen, and stockpile, aggregate base Class 5 (modified) material, for road
construction and maintenance by St. Louis County and other public entities, over
a two-week period at four separate sites, including the County-owned Harris Pit.
Hamm. Ex. 1 at 1; Resp’t Mot. I at 2; Jt. Stips. 7, 9, 11, 13. To perform the
work, Hammerlund brought to the pit and operated its portable crushing plant, two
conveyors, stacker conveyor, operations booth, genset trailer, skid-steer, and front-end
loader. Jt. Stip. 27. An unprocessed material dumpsite and a processed material
stockpile were located on opposite sides of the crushing plant; the unprocessed
material dumpsite was approximately 80 to 100 feet from the crusher. Jt. Stips.
19, 20. Tandem-axel dump trucks, owned and operated by St. Louis County, made
deliveries to the unprocessed material dumpsite, and a County-owned and
operated bulldozer maintained roadways around the Harris Pit, including the
unprocessed material dumpsite. Jt. Stips. 48, 50. Hammerlund used its front-end
loader to transport material from the unprocessed material dumpsite to feed the
crusher. Jt. Stips. 41, 42. A Hammerlund conveyor took the crushed product to
the processed material stockpile. Jt. Stip. 19.

On August 13, 2013, MSHA Inspector Wilbert
Koskiniemi conducted a regular inspection of operations at the Harris Pit. Gov.
Ex. 1 at 2. During his inspection, Koskiniemi observed St. Louis County truck
drivers dumping binding material at the unprocessed material dumpsite, where
berms were inadequate at the six to eight foot drop-off to prevent overtravel
and rollover hazards. Gov. Ex. 1 at 2-3; Jt. Stip. 48. He also observed the
Hammerlund loader operator repairing the berms which, subsequently, a County bulldozer,
pushing dumped unprocessed material into stockpiles, proceeded to knock over. Gov.
Ex. 1 at 2-3; Jt. Stip. 51. Also, while the crusher was in operation, Koskiniemi
observed an unaccompanied County employee walk past the crusher and conveyor
belts to the processed material stockpile, where he collected product samples. Gov.
Ex. 1 at 2; Jt. Stip. 52. Thereafter, Koskiniemi reviewed Hammerlund’s training
records, and determined that St. Louis County employees were not provided with
site-specific hazard awareness training. Gov. Ex. 1 at 2; Jt. Stip. 49. Consequently,
he issued Citation Nos. 8740638 and 8740639.

A.    Citation
No. 8740638

Koskiniemi issued 104(a) Citation
No. 8740638, alleging a “significant and substantial” violation of section 46.11(a)
that was “reasonably likely” to cause an injury that could reasonably be
expected to be “fatal,” affecting “one person,” and was caused by Hammerlund’s
“low” negligence.[1],
[2]
The “Condition or Practice” is described as follows:

No site specific hazard training was
given to the St. Louis County workers operating tandem dump trucks and dozers
on the mine site while providing binding material for Hammerlund Construction
crushing operation. Also on site was a St. Louis County material sampler who
would enter the mine site to collect material samples from the stock piles that
Hammerlund Construction was producing. This condition exposed persons to
various mine hazards with resulting injuries. The County workers were observed
backing a tandem axle dump truck on a dump site with no berms. They stated that
they didn’t know it wasn’t allowed.

Gov. Ex. 2. The citation was terminated on August 13,
2013, after site-specific hazard awareness training was provided to the St.
Louis County workers.

B.     Citation
No. 8740639

Koskiniemi issued Citation No. 8740639,
alleging a “significant and substantial” violation of section 56.9300(a) that
was “reasonably likely” to cause an injury that could reasonably be expected to
be “fatal,” affecting “one person,” and was caused by Hammerlund’s “low” negligence.[3]
The “Condition or Practice” is described as follows:

Inadequate berms were provided on the
material dump located on the west side of the pit area where the St. Louis
county truck drivers were delivering binder material for the Hammerlund
crushing plant to use in the production of Class 5 material. The county’s
tandem axle trucks wound back onto the dump without adequate berms to stop them
from going over the edge, exposing them to roll over hazards. The trucks
delivered numerous loads per shift. At one point the Hammerlund loader operator
fixed the berms, only [to] have the county employee push them over with the
county dozer. The county employee was unaware that berms were necessary. No
site specific hazard training was done. See citation 8740638.

Gov. Ex. 4. The citation was terminated on August 13, 2013,
after adequate berms were constructed at the unprocessed material dumpsite.

IV.       Jurisdiction

It is uncontroverted that the
crusher, itself, is registered with MSHA as a mine, and is subject to MSHA’s
jurisdiction. Resp’t Mot. I at 8; Jt. Stip. 5. In fact, Hammerlund accepted and
paid five citations, also issued during Kosiniemi’s August 13 inspection, for
safety violations pertaining to the condition of the crusher itself, including
the transfer conveyor, cone crusher/screener feed conveyor, and the stacker
conveyor. Resp’t Mot. I at 6; Jt. Stip. 46. However, Hammerlund
argues that Citation Nos. 8740638 and 8740639 should be vacated because they
concern conditions at the unprocessed material dumpsite and the processed
material stockpile, areas that it contends were not under its authority or
control and, therefore, not part of its mine. Thus, the question boils
down to whether the crusher, alone, or the crusher, and the processed and
unprocessed stockpiles, constituted the mine over which Hammerlund bore compliance
responsibility. Resolution of this issue requires an analysis of the extent to
which the cited conditions reflected mining operations under the control or
supervision of Hammerlund, in its capacity as a mine “operator,” performing its
duties under the contract.

A.    Indicia
of Operational Control

In pertinent part, section
3(h)(1)(C) of the Act defines a “mine” to include “lands.
. . or other property . . . on the surface or underground . . . used in, or to
be used in, the milling of . . . minerals, or the work of preparing . . .
[such] minerals.” 30 U.S.C. § 802(h)(1)(C). The Commission has interpreted this
definition “expansively,” and has stated that questions of jurisdiction “must
be resolved within the Act’s overall purpose of protecting miners’ safety and
health.” W. J. Bokus Indus., Inc., 16 FMSHRC 704, 707-08 (Apr. 1994). “Congress
intended the Mine Act to protect individuals from potential hazards that are
incidental to entry into a mine, even if the potential hazards are not located
on land owned by the mine operator.” TXI Operations, LP, 23
FMSHRC 54, 60 (Jan. 2001) (ALJ); Ellis & Eastern Co., 37 FMSHRC 1607,
1612 (July 2015) (ALJ) (“the extraction and processing areas, rather than the
legal property boundaries, determine the zone of MSHA’s authority”); Pickett
Mining Grp., 36 FMSHRC 2444, 2451-52 (Sept. 2014) (ALJ).

The touchstone of an entity’s
liability under the Act and, therefore, whether it is subject to MSHA’s
jurisdiction, is whether and to what extent it “operates, controls, or
supervises” a “mine.” 30 U.S.C. § 802(d) (defining “operator”); see Berwind
Nat. Res. Corp., 21 FMSHRC 1284, 1293 (Dec. 1999) (to be an “operator,” an
entity must have “substantial involvement” in the operation of the mine);
Youngquist Bros. Rock, Inc., 36 FMSHRC 2492, 2494 (Sept. 2014) (ALJ) (“an
entity cannot be held liable unless it ‘operates, controls, or supervises’ the
mine”) (citation omitted).  

Among the factors considered when
determining whether an entity is an “operator” of a mine is whether it has the
authority to supervise or control the conditions of the mine. Sec’y of Labor
v. Nat’l Cement Co. of Cal., 573 F.3d 788, 795 (D.C. Cir. 2009); Ames
Constr., Inc.,    33 FMSHRC 1607, 1611 (July 2011); Berwind, 21
FMSHRC at 1293 (evaluating whether a parent corporation was an operator under
the Act based on the extent of its involvement in the mine’s engineering,
finances, production, personnel, and health and safety matters). Also
instructive in determining an entity’s control is the connection between the
entity and the disputed area of the mine - - specifically, the relationship between
its activities and operation of the mine, and the extent of its presence at the
mine site - - factors considered when determining whether an entity is an
independent contractor. Otis Elevator Co., 11 FMSRHC 1896, 1902 (Oct.
1989); Joy Tech., Inc., 17 FMSHRC 1303, 1307 (Aug. 1995).

These
factors are considered in light of the Commission’s “longstanding view that the
purpose of the Act is best effectuated by citing the party with immediate
control over the working conditions and the workers involved when an unsafe
condition arising from those work activities is observed.” Old Dominion
Power Co., 6 FMSHRC 1886, 1892 (Aug. 1984) (citing Phillips Uranium
Corp., 4 FMSHRC 549, 553 (Apr. 1982)).

The Secretary argues that the
contract allocated responsibility and liability associated with the entire
Harris Pit to Hammerlund, because Hammerlund was responsible for compliance
with MSHA regulations, Hammerlund agreed to use its front-end loader to
retrieve material from the unprocessed dumpsite to feed its crusher, and
because Hammerlund agreed to provide a superintendent to take charge of the
gravel pit sites. Sec’y Mot. at 4-5; Jt. Stips. 25, 26, 30, 41. 

Hammerlund argues that the contract
cannot support a finding of requisite operational control over the Harris Pit, because
St. Louis County retained too much authority. For example, it points out, St.
Louis County owned the land on which the crushing operation was located, was
responsible for site preparation, controlled access to the pit, selected the
material that constituted the unprocessed stockpile, selected the location of
the stockpiles and crusher, and delivered unprocessed material to the pit with
County-owned and operated dump trucks. Resp’t Mot. I at 2, 12; Resp’t Mot. II
at 2, 3; Jt. Stips. 13, 21, 22, 35, 37, 38. Hammerlund further contends that it
lacked sufficient operational control, because the St. Louis County
Superintendent had authority to “resolv[e] all questions” related to the
operation of the Harris Pit, and the County owned and operated the bulldozer
that maintained the roadways and the unprocessed material dumpsite. Resp’t Mot.
I at 15; Resp’t Mot. II at 3, 4; Jt. Stips. 36, 50, 51.

B.     Hammerlund’s
Control of Operations

Based on application of the indicia
of operational control, i.e., Hammerlund’s control over the processed material
stockpile and unprocessed material dumpsite, I find that the undisputed facts
establish that MSHA’s jurisdiction extended beyond the crusher to include the
stockpiles integral to Hammerlund’s mining operation of crushing, screening,
and stockpiling Class 5 material.

Hammerlund had the exclusive
contractual duty to retrieve materials from unprocessed stockpiles to be processed
by the crusher. Retrieving material from the unprocessed material dumpsite, then,
became an integral component of Hammerlund’s operation of the crusher. Similarly,
Hammerlund owned and controlled the conveyors used to move the final product of
crushed materials to the processed stockpile, and Hammerlund maintained the
stockpile, i.e., built, shaped, and blended it. Based on these activities,
Hammerlund had the “bottom line authority” over production activities related
to the processed and unprocessed stockpiles. See Berwind, 21 FMSHRC at
1294.    

It was a Hammerlund employee that
Koskiniemi observed repairing berms at the unprocessed material dumpsite. Building
berms is an example of Hammerlund’s acceptance of the contractual provision holding
the contractor responsible for compliance with safety regulations. Furthermore,
despite Koskiniemi’s observation of the St. Louis County worker taking product
samples while the crusher was operating, Hammerlund had a policy of stopping
the crusher or running it without processing material during sample retrieval -

• a clear demonstration of its authority over safety at the processed material
  stockpile. Jt. Stip. 53; see Ames Constr., Inc., 33 FMSHRC 1607, 1613
  (July 2011) (noting that “the ability to stop unsafe work implies supervisory
  authority”); Berwind, 21 FMSHRC at 1293 (noting that control over health
  and safety is indicative of supervisory control); Otis, 11 FMSHRC at
  1902 (finding an entity to be an operator where its employees “had a direct
  effect on . . . safety”); Youngquist,  36 FMSHRC at 2497 (finding an
  operator’s safety policy, that had applicability to the disputed area of the
  mine, indicative of the operator’s control over that area).

Regarding the connection between
Hammerlund’s contractual obligations and its utilization of the stockpiles contested
as components of the “mine,” it is undisputed that Hammerlund moved material to
the crusher from unprocessed stockpiles, and fed product from the crusher to processed
stockpiles. I find Hammerlund’s activities with respect to these areas essential
to its mining operation. See Joy, 17 FMSHRC at 1308 (finding that the
continuous miner and shuttle cars sufficiently relate to the mine because
without them, “[c]oal could not be mined”); Otis, 11 FMSHRC at 1902
(finding elevator service contractor’s services to be sufficiently related to
the extraction process of the mine where the contractor was exposed to mining
hazards and had a direct effect on the safety of others); Lewis-Goetz and Co.,
Inc.,     35 FMSHRC 2192, 2195 (July 2013) (ALJ) (finding fabrication,
maintenance, and repair of conveyor belts to sufficiently relate to the mine,
as they are essential parts of the mining process and, therefore, not
incidental or de minimis); Kempton Transp., Inc., 37 FMSHRC ___,
slip op. at 3, No. WEST 2014-998; WEST 2015-20 (Oct. 28, 2015) (ALJ) (finding
sufficient relation to mining process where haul truck drivers unload material
to be crushed and processed on the mine site).

Hammerlund’s crushing operation was
performed at the Harris Pit for three to four days, during the course of a two-week
period. The Commission has found that even “relatively limited” periods of
contact with a mine may be sufficient to uphold liability where the activities
performed by the entity are an integral aspect of the mining process. Lang
Bros., Inc., 14 FMSHRC 413, 420 (Sept. 1991) (finding seven to ten days of
presence on a non-continuing basis to be sufficient for liability). I find
Hammerlund’s relatively short period of mining at the Harris Pit to be counterbalanced
by its authority and control over mining operations at the processed material
stockpile and the unprocessed material dumpsite - - operations critically
related to completing its contractual obligations.

When these factors are considered
with Congressional intent that MSHA’s jurisdiction under the Act be construed
inclusively, I find that the undisputed facts establish that Hammerlund had
operational control over the unprocessed material dumpsite and the processed
material stockpile and, therefore, that these areas, in addition to the
portable crusher, constituted the mine. Accordingly, I find that MSHA acted
within its jurisdiction in issuing Citation Nos. 8740638 and 8740639.

Having found MSHA jurisdiction over
the disputed stockpiles, I also find, by the parties’ stipulations as to the accuracy
of Citation Nos. 8740638 and 8740639 and Hammerlund’s agreement to accept the
citations, as issued, and pay-in-full the Secretary’s proposed penalties, that
Hammerlund violated sections 46.11(a) and 56.9300(a), as alleged.

ORDER

WHEREFORE, the Secretary’s
Motion for Summary Decision is GRANTED, and Hammerlund’s Motion for
Summary Decision is DENIED; and Hammerlund Construction, Incorporated,
is ORDERED TO PAY a total civil penalty of $216.00 within thirty days of
the date of this Decision.[4]

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Gregory Tronson, U.S. Department of Labor, Office of the
Solicitor, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Nicholas W. Scala, Esq., Law Office of Adele L. Abrams,
P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705

/tcp

[1] Generally speaking, a violation is significant and
substantial if it is reasonably likely that a hazard contributed to by the
violation will result in an accident causing serious injury. Cement Div., Nat’l
Gypsum, 3 FMSHRC 822, 825 (Apr. 1981).

[2] 30 C.F.R. § 46.11(a) requires a mine operator to
“provide site-specific hazard awareness training before any person specified
under this section is exposed to mine hazards.” Section 46.11(b) requires training
for a host of non-miners, including customers and delivery workers.

[3] 30 C.F.R. § 56.9300(a) provides that “[b]erms or
guardrails shall be provided and maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment.” Alternatively, the Secretary alleges a
violation of 30 C.F.R. § 56.9301, which provides that “[b]erms, bumper blocks,
safety hooks, or similar impeding devices shall be provided at dumping
locations where there is a hazard of overtravel or overturning.”

[4] Payment should
be sent to: Mine Safety and Health Administration, U.S. Department of Labor, Payment
Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket number
and A.C. number.