Secretary of Labor v. Thompson Electric, Inc.

Plain-English summary

Thompson Electric worked six days at a sand-and-gravel mine disconnecting and reconnecting power to a dredge, and one employee was observed about 13 feet above ground without fall protection. Judge Jerold Feldman held that the contractor was subject to Mine Act jurisdiction because it performed necessary maintenance on mining equipment at the mine, even though its presence was limited. He separately held that the employees fell within Part 46's exemption for maintenance or service workers who do not work at a mine for frequent or extended periods. The judge therefore vacated the written-training-plan citation and new-miner-training withdrawal order. He approved the fall-protection citation as S&S with negligence reduced from moderate to low and a penalty reduced from $540 to $250.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.3(a), 46.5(a), and 56.15005
• Outcome: The two Part 46 training actions were vacated, while the fall-protection citation remained S&S with low negligence and a $250 penalty.
• Key point: A short-term onsite contractor may be a Mine Act operator while its service employees remain exempt from Part 46 new-miner training requirements.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

June 8, 2017

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

THOMPSON ELECTRIC, INC.,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2015-596

A.C. No. 33-04502-385170

Docket No. LAKE 2015-639

A.C. No. 33-04502-387619

Mine: Sober Sand & Gravel

SUMMARY
DECISION

Appearances:   Lisa
A. Cottle, Esq., U.S. Department of Labor, Office of the Solicitor, Cleveland,
Ohio, on behalf of the Petitioner;

Keith
L. Pryatel, Esq., Kastner Westman & Wilkins, LLC, Akron, Ohio, on behalf of
the Respondent.

Before:                        Judge Feldman

These consolidated civil penalty
proceedings are before me based on petitions for assessment of civil penalties
filed by the Secretary of Labor (“Secretary”) under section 105(d) of the
Federal Mine Safety and Health Act of 1977, as amended (“the Mine Act” or “Act”),

30 U.S.C. § 815(d), against the Respondent, Thompson Electric, Inc. (“Thompson
Electric”). Thompson Electric is an independent contractor that performed
electrical services at the Sober Sand & Gravel mine (“Sober Mine”) in
Portage County, Ohio. The Sober Mine, which is owned and operated by Ray
Bertolini Trucking Co., is a facility where a dredge is used to excavate
submerged sand and gravel. The services performed by Thompson Electric consisted
of disconnecting and reconnecting electrical power to a dredge to allow for the
movement of the dredge on mine property.

During the course of an April 29,
2015, Mine Safety and Health Administration (“MSHA”) inspection of the Sober
Mine facility, Thompson Electric was cited for three violations of the
Secretary’s mandatory safety standards: Citation No. 8842392, which alleges that
a Thompson Electric employee failed to use adequate fall protection; Citation
No. 8842396, which alleges a failure to develop and implement a written plan
for new miner training; and Order No. 8842394, which alleges a failure to
provide new miner training.

Thompson Electric does not dispute
the facts that the Secretary relies on to support the alleged violations. See
Jt. Stip. , at 1-4 (Feb. 10, 2017). However, on March 29, 2017, Thompson
Electric filed a Motion for Summary Decision seeking that the violations be
vacated based on a lack of Mine Act jurisdiction. See Resp. Br. , at 1-2
(Mar. 29, 2017). While the Secretary does not object to resolving this matter summarily,
the Secretary opposes Thompson Electric’s denial of jurisdiction. See Sec’y
Br. , at 7 (Apr. 19, 2017). As both parties agree that a summary decision is
appropriate in resolving the issue of Mine Act jurisdiction, I construe the
parties’ pleadings as cross-motions for summary decision.

In furtherance of resolving this
matter via summary decision, the parties have filed joint stipulations of
material facts. The parties’ Joint Stipulations provide:

1. The
   Sober Mine is a surface “mine” as that term is defined in section 3(h) of the
   Mine Act. The Sober Mine is owned and operated by Ray Bertolini Trucking Co. Joseph
   F. Bertolini is the President of the Sober Mine and Eric Gross is a Foreman of
   the Sober Mine.

2. At
   all material times involved in this case, the commodities of the Sober Mine
   (construction sand and gravel) entered commerce, or the operations or products
   thereof affected commerce, within the meaning and scope of Section 4 of the
   Mine Act.

3. Respondent
   Thompson Electric is an independent contractor that performed electrical
   services on a dredge at the Sober Mine in Portage County, Ohio.

4. Thompson
   Electric is not an “owner” or “lessee” of the Sober Mine within the meaning of
   30 U.S.C. § 802(d), nor does Thompson Electric “control” or “supervise” the
   Sober Mine within the meaning of 30 U.S.C. § 802(d).

5. The
   only equipment that Thompson Electric’s employees worked on or performed
   services on at the Sober Mine was a single dredge owned by the Sober Mine. The
   dredge is used to excavate submerged sand and gravel from the mine.

6. The
   scope of Thompson Electric’s work at the mine was to disconnect the electrical
   power to the dredge where it was originally located on the mine property, and
   then later once the dredge was relocated by the Sober Mine, re-connect
   electrical power to the dredge.

7. The
   new location of the dredge was approximately 1,500 feet from its original
   location and 2,500 feet from the entrance to the Sober Mine. At the new
   location, the dredge was scheduled to be re-connected to an electrical
   sectioning cabinet.

8. At
   the time of the alleged MSHA citations at issue . . . the dredge had already
   been moved to its new location by the Sober Mine.

9. Thompson
   Electric employees were at the Sober Mine property a total of six (6) days.

10. On the first day (12/24/14),
    a single Thompson Electric employee disconnected the dredge power source. That
    Thompson Electric employee was present for seven (7) hours at the Sober Mine
    property. During this work, the dredge was locked-out from its power source and
    the Sober Mine was operating.

11. On the second and third days
    (4/22/15 and 4/23/15), two employees of Thompson Electric worked on electrical
    connect components of the dredge at its new location. Both Thompson Electric
    employees worked seven (7) hour days. During this work, the dredge was
    locked-out from its power source and the Sober Mine was operating.

12. On April 24 and 27, 2015,
    four (4) Thompson Electric employees worked on the electrical connect
    components of the dredge at its new location for seven (7) hours each day. During
    this work, the dredge was locked-out from its power source and the Sober Mine
    was operating.

13. April 24, 2015, was the
    first day that the worker (Pete Aglioti) who committed the fall protection
    infraction at issue in Citation No. 8842392 was at the Sober Mine site during
    the six (6) day period at issue in the citations.

14. On April 29, 2015, two
    Thompson Electric employees arrived to work at the Sober Mine. However, the
    Sober Mine had not moved the power cable to the new location. Therefore, two
    additional Thompson Electric employees were sent to the Sober Mine to also work
    on the dredge at its new location.

15. On April 29, 2015, MSHA
    issued Thompson Electric Citation No. 8842392 because Thompson Electric
    employee Pete Aglioti failed to utilize fall protection. At the time, Joe
    Bertolini of the Sober Mine was handing a power cable for the dredge to Pete
    Aglioti who was on the dredge, approximately 13 feet above ground level,
    without wearing fall protection. Pete Aglioti had been trained by Thompson
    Electric about the need to wear fall protection whenever working from a surface
    four or more feet above ground level. Thompson Electric immediately (i.e. on
    4/29/15) sent Pete Aglioti home for disciplinary reasons, and ultimately issued
    him a 3-day suspension for failing to wear fall protection as he had been
    trained.

16. On April 29, 2015, the
    dredge was locked-out from its power source and the Sober Mine was operating.

17. On April 29, 2015, MSHA
    issued Thompson Electric Order No. 8842394 for failing to provide four
    employees with newly hired inexperienced miner training pursuant to 30 C.F.R. §
    46.5(a). Thompson Electric admits that it did not provide newly hired
    inexperienced miner training to the four employees.

18. On April 30, 2015, MSHA
    issued Thompson Electric Citation No. 8842396 for failure to develop or
    implement a Part 46 Training Plan. Thompson Electric admits that it did not
    develop or implement a Part 46 Training Plan. On April 30, 2015, the dredge was
    locked-out from its power source and the Sober Mine was operating.

19. Thompson Electric did not
    complete its work at the Sober Mine. Once the MSHA officer, on April 29, 2015,
    informed Thompson Electric of its intention to cite the Respondent for MSHA
    violations, Respondent promptly exited the Sober Mine location and did not
    return.

20. Thompson Electric timely
    contested all of the issued MSHA citations.

Jt. Stip. , at 1-4.

Thompson Electric seeks to have the
subject citations and order vacated on jurisdictional grounds. As noted, Thompson
Electric has stipulated to the facts surrounding the issuance of the citations
and order. If Mine Act jurisdiction is found, the parties have proffered
conditional settlement terms with respect to the issues of significant and
substantial (S&S) and degree of negligence, and the proposed civil penalty
for each of the three cited conditions. However, the parties reserve the right
to appeal any adverse finding as a consequence of this Summary Decision.

Thus, there are two threshold
issues to be resolved in this Summary Decision: 1) whether Thompson Electric is
subject to Mine Act jurisdiction; and 2) whether Thompson Electric is subject
to Part 46 training requirements. As discussed below, although I have found
that Thompson Electric is subject to Mine Act jurisdiction, the Part 46
training violations shall be vacated. Consequently, the parties’ motions for
summary decision shall each be granted in part, in that the Secretary has
prevailed on the issue of Mine Act jurisdiction, and Thompson Electric has
prevailed with respect to the inapplicability of Part 46.

I.                   
Mine Act Jurisdiction

a.        Thompson
Electric’s Jurisdictional Challenge

Thompson Electric argues that it
should not be subject to Mine Act jurisdiction because it was not “engaged in
the extraction process” and because its activities were de minimis in
that they were limited solely to electrical maintenance on a dredge. Resp.
Br. , at 10. In this regard, Thompson Electric asserts that it was never
present at the Sober Mine for more than five consecutive work days, and that at
all times its employees were performing electrical maintenance on a dredge that
was “locked out from its power source,” was “completely inoperable,” and “was
not excavating any aggregates.” Id. at 5-6; Jt. Stip ., at ¶ 9-14.
Finally, Thompson Electric reportedly left the Sober Mine location immediately
after being cited for the alleged violations and has no intention of returning.
Id. at 7; Jt. Stip ., at ¶ 19.

In support of its motion, Thompson
Electric relies on the Fourth Circuit decision in  

Old Dominion Power Co. v. Donovan , 772 F.2d 92 (4th Cir. 1985),
wherein the court concluded that a power company that installed, maintained,
and took monthly electric meter readings at a substation that was separated
from the rest of mine property by a chain link fence was not

“an operator”   within the meaning
of section 3(d) of the Mine Act, which includes contractors performing services
at a mine. Thompson Electric further relies on N. Illinois Steel Supply Co.
v. Sec’y of Labor , 294 F.3d 844, 848 (7th Cir. 2002) (citations omitted), in
which the court stated “there may be a point … at which an independent
contractor’s contact with a mine is so infrequent or   de minimis   that it would be difficult to conclude
that services were being performed.” In N. Illinois Steel , the Seventh
Circuit held that a company whose employees drove delivery trucks onto mine
property and helped unload those vehicles was not subject to Mine Act
jurisdiction. Id. at 848-49.

Finally, Thompson Electric heavily
relies on the recent Sixth Circuit holding in

Maxxim Rebuild Co. v. FMSHRC , 848 F.3d 737 (6th Cir. 2017), which held
that a contractor that repairs mining equipment in a repair shop at an off-site
location is not subject to Mine Act jurisdiction. The distance of the repair
shop from a mine site was not specified by the Sixth Circuit in Maxxim
Rebuild as the repair shop serviced the equipment for a number of different
mines. Id. at 737.

The Secretary argues that the
electrical contract services provided by Thompson Electric on the dredge
located on Sober Mine property were essential to the sand dredging process and,
thus, are subject to Mine Act jurisdiction, despite the fact that the
electrical work was performed for only six non-consecutive days. Sec’y Br. ,
at 4-5.

b.       Statutory
Provisions

The jurisdictional question must be
resolved based on application of the statutory definitions of “a mine” and “a
mine operator.” Section 3(h)(1) provides, in relevant part, that a mine is “an
area of land from which minerals are extracted … [and] private ways … appurtenant
to such area.” 30 U.S.C. § 802(h)(1). Included within the statutory definition
of a mine is “equipment [and] machines … used in, or to be used in … the work
of extracting such minerals from their natural deposits….” Id. As noted
above, the Mine Act’s definition of a mine operator includes “any independent
contractor performing services … at [a] mine.” 30 U.S.C. § 802(d).

c.        Otis
Elevator Test

In its Otis Elevator cases,
the Commission established a two-pronged test for determining whether an
independent contractor shall be considered an “operator” under section 3(d).     
11 FMSHRC 1896 (Oct. 1989) (“ Otis I ”) and 11 FMSHRC 1918 (Oct. 1989)
(“ Otis II ”),

aff’d on other grounds ,   921 F.2d 1285 (D.C. Cir. 1990). The
first inquiry is the degree of “the independent contractor’s proximity to the
extraction process” and whether its work is “sufficiently related” to that
process. Otis I, 11 FMSHRC   at 1902. The Commission has determined
a contractor’s activities are sufficiently related to the extraction process
when its employees are exposed to mining hazards and they have “a direct effect
on the safety of others….” Id. Second, the Commission examines “the extent
of [the contractor’s] presence at the mine.” Id. The Commission has articulated that the
essence of this test is whether the contractor’s “contacts with the … mine were
not so rare, infrequent and attenuated as to bring [the] case within the
holding of   Old Dominion ….” Otis II,   11 FMSHRC at 1922-23;   see also   Joy Technologies Inc. ,
99 F.3d 991, 999 (10 th   Cir.
1996)   (expressly rejecting the   Old Dominion   approach and adopting the broad
jurisdictional reach in   Otis
Elevator ); see also Bulk Transp. Services Inc. , 13 FMSHRC 1354,
1357 (Sept. 1991) (broadly construing section 3(d) in finding that a coal
haulage company was a statutory operator that performed an essential service on
mine property).

In applying the Otis Elevator criteria,
we first look to the independent contractor’s proximity and relationship to the
extraction process. Thompson Electric’s reliance on

Old Dominion and Maxxim Rebuild to support its apparent assertion
that it was insufficiently connected to the mining process is misplaced. Unlike
this case, both Old Dominion and

Maxxim Rebuild concerned activities that either were performed in an
area fenced off from the active mine, or not performed on mine property. As
noted, Old Dominion concerned off-site meter readings at a substation
separated from the rest of mine property by a chain link fence. 772 F.2d at 93.
Maxxim Rebuild concerned “repairs [of] mining equipment at a site that
is neither adjacent to nor part of a working mine.” 848 F.3d at 737. In finding
a lack of Mine Act jurisdiction, the court in Maxxim Rebuild focused on
the statutory definition of a “coal or other mine,” which, as previously noted,
includes “facilities” and “equipment … used in, or to be used in … the work of
preparing coal or other minerals.” Id. at 740 (citing 30 U.S.C. §
802(h)(1)). In considering the Mine Act’s statutory definitions, the court stated:

… [C]ontext
and perspective are everything. In pulling back the lens, we see several
indications that the power of the Mine Safety and Health Administration extends
only to such facilities and equipment if they are in or adjacent to — in
essence part of — a working mine.

Start with
what   § 802(h)(1)   defines: a “coal or other mine.” The term is locational. And
the location concerns mines. Equipment by itself tells us nothing about where
it is. And a facility by itself does not say anything about whether it is
connected to a mine. As the title of the Act (the Federal   Mine   Safety and Health Act) and the title
of the pertinent agency (the   Mine   Safety and Health Administration)
suggest, the definition of “coal or other mine” relates to a place — land and
things in or connected to a mine.

Id . (emphasis original). It is significant that, in
finding an absence of jurisdiction, the Sixth Circuit “pulled back the lens” to
focus on the off-site location of the subject repairs — a focus that Thompson
Electric seeks to ignore. Thus, similar to the physically isolated location of
the substation in Old Dominion , it was the off-site location of the repairs
that served as the basis for the Sixth Circuit’s finding of an absence of Mine
Act jurisdiction.

With regard to the question of the
relationship of the electrical services performed by Thompson Electric to the
extraction process, Thompson Electric relies on the Seventh Circuit’s holding
in N. Illinois Steel , which exempted contractors delivering steel on
mine property from Mine Act jurisdiction. 294 F.3d at 844. The Seventh Circuit
held that the independent contractor’s delivery services were “so attenuated
[from the mining process] as to remove it from the jurisdiction of MSHA.” Id.
at 848. In this regard, the court stated:

… [T]he work performed by the NIS
drivers at the mine can only be described as 

de minimis. In fact, there is nothing to distinguish NIS’s deliveries of
steel from deliveries by other vendors or parcel delivery companies of supplies
to be used by the miners. 

Id. at 849.

In Otis II , the D.C. Circuit
found Mine Act jurisdiction over a contractor who had conceded that it had
performed “limited but necessary” service at mines. 921 F.2d at 1290 n.3. So
too, this case concerns the maintenance of heavy mining equipment, specifically
a dredge, which is indispensable to the sand and gravel dredging process. The delivery
and offloading of steel on mine property in N. Illinois Steel clearly is
distinguishable from the maintenance of mine equipment on mine property —
activities that are explicitly regulated by Part 56 of the Secretary’s mandatory
safety standards governing metal and nonmetal surface mines. See 30
C.F.R. Part 56.

In this regard, section 56.14105
specifically requires that repairs and maintenance of electrical equipment may
only be performed when power is off and the equipment is blocked.  30 C.F.R. §
56.14105. To exempt on-site contract employees performing maintenance services
on mine equipment from the protective provisions of section 56.14105 makes no
sense. Thompson Electric’s apparent assertion that maintenance on locked-out
de-energized equipment is exempt from Mine Act jurisdiction due to its
inoperable status is a distinction without a difference that must be rejected. Thus,
de-energizing equipment prior to maintenance is a requirement of the safety
standards, rather than a basis for an exemption from them.

The remaining criterion
of the Otis Elevator test concerns the extent of the contractor’s
presence at the mine. Thompson Electric asserts that its six-day presence at
the Sober Mine was sufficiently infrequent and de minimis   to exempt it from Mine Act
jurisdiction. Resp. Br. , at 4-13. Moreover, Thompson Electric reportedly
has no intention of performing further services at the Sober Mine site. Resp.
Br. , at 7; Jt. Stip ., at ¶ 19.

Resolving
jurisdiction based on the degree of a contractor’s presence at a mine site must
be based on an analysis of the facts as they existed at the time of the
issuance of the citations, rather than a speculative and self-serving
estimation by the contractor regarding the extent of its future activities, or
absence thereof, at a mine site. In other words, Thompson Electric cannot
achieve a self-imposed exemption from the Act’s jurisdiction by simply asserting
that it will not return to the Sober Mine. Therefore, Thompson Electric’s presence
at the Sober Mine for only six days is not dispositive of the jurisdictional
question.

Both parties agree that summary
decision based on their joint stipulations is the preferable vehicle for
resolving the jurisdictional issue. See Sec’y Br. , at 7-8; Resp. Br. ,
at 22. Commission Rule 67(b) provides that a motion for summary decision shall
be granted if there is no genuine issue as to any material fact, and the moving
party is entitled to summary decision as a matter of law. 29 C.F.R. §
2700.67(b); see also Hanson Aggregates New York, Inc. , 29 FMSHRC 4, 8-9
(Jan. 2007) (citations omitted). Moreover, in determining if a motion for
summary decision should be granted, the court must construe the undisputed
material facts in a light most favorable to the opposing party. [1]
Hanson , 29 FMSRHC at 9.

Construing the evidence in a light
most favorable to Thompson Electric, there are no outstanding issues of
material fact to conclude that the services performed by Thompson Electric were
so attenuated from the dredging process to warrant an exemption from Mine Act
jurisdiction. Rather, Thompson Electric’s performance of maintenance services
on mining equipment on mine property falls squarely within the statutory reach of
the Mine Act. Consequently, as an “independent contractor performing services”
at a mine, Thompson Electric must be considered a statutory “operator” that is
subject to the Act’s jurisdiction . See 30 U.S.C. § 802(d).

II.                
Part 46 Training Requirements

As a consequence of MSHA’s April
29, 2015, Sober Mine inspection, Thompson Electric received two citations
alleging violations of Part 46: Citation No. 8842396, which alleges a failure
to develop and implement a written plan for new miner training in violation of
30 C.F.R. § 46.3(a) [2] ;
and 104(g)(1) withdrawal Order No. 8842394, which alleges a failure to provide
new miner training in violation of 30 C.F.R. § 46.5(a) [3] , [4] .

In addressing the validity of the alleged
violations of Part 46, it is necessary to differentiate the statutory term
“miner” in section 3(g) of the Mine Act from the regulatory term “miner” in 30
C.F.R. § 46.2(g). Section 3(g) of the Act broadly defines a “miner” as “any
individual working in a coal or other mine.” 30 U.S.C. § 802(g).

On the other hand, Part 46 defines
a “miner” as follows:

(1) Miner means: (i) Any
person, including any operator or supervisor, who works at a mine and
who is engaged in mining operations. This definition includes independent
contractors and employees of independent contractors who are
engaged in mining operations and (ii) Any construction worker who is
exposed to hazards of mining operations.

30 C.F.R. § 46.2(g). However, not every contractor
performing services at a mine is subject to Part 46. In this regard, section
46.2(g)(2) provides:

The definition of “miner” [in Part
46] 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).

Thus, the Secretary acknowledges, given
the section 46.2(g)(2) exemptions, that a statutory “miner” under section 3(g)
of the Mine Act may not be considered a per se “miner” for the purposes
of Part 46. Rather, it is the frequency and extent of a contract employee’s
presence at a mine that determines whether the contract employee is subject to
the training requirements of Part 46.

The parties have stipulated that Thompson
Electric’s employees were present at the Sober Mine to perform electrical
maintenance on a dredge for a total of six days: one day in December 2014 and
five work days in April 2015. Jt. Stip. , at ¶ 9-14. The Secretary does
not dispute that Thompson Electric’s services were limited in scope, in that
they only required disconnecting and re-connecting power to a dredge to allow
for its repositioning. Id. at ¶ 6. Consequently, Thompson Electric
argues that its employees’ infrequent and limited presence at the mine exempts
it from Part 46 training requirements. Resp. Br. , at 16-20.

Conversely, the Secretary argues that
Thompson Electric’s employees spent significant time at the mine performing
work on a dredge that was integral to the extraction process. Sec’y Supp.
Br. , at 2 (May 24, 2017). Moreover, the Secretary notes that, had
MSHA’s intervention not triggered a work stoppage, Thompson Electric would have
maintained a continuing presence at the mine for additional time. Id.

In considering the proper
interpretation of the “miner” exemption in section 46.2(g)(2), it is axiomatic
that, to the extent that a regulation is silent or ambiguous on a particular point,
the Commission follows the doctrine of deference established in Bowles v.
Seminole Rock and Sand Co. , 325 U.S. 410 (1945), and reaffirmed in Auer
v. Robbins , 519 U.S. 452 (1997). Under this doctrine, the promulgating
agency’s interpretation of the regulation is entitled to full deference
(referred to as Auer deference) unless the interpretation is
unreasonable, plainly erroneous, or inconsistent with the regulation, or there
is reason to suspect it does not reflect the agency’s fair and considered judgment
on the matter. Drilling & Blasting Sys., Inc. , 38 FMSHRC 190, 194
(Feb. 2016) (citations omitted).

Here, the Secretary’s application
of the operative phrase “for frequent or extended periods” must be consistent
with its plain meaning. Determining the appropriateness of the Secretary’s
application of the Part 46 “miner” exemption requires a qualitative and
quantitative analysis. Qualitatively, although the services provided by
Thompson Electric were essential, they were very limited in scope. Quantitatively,
the services only required the presence of its employees for a short period of
time. To permit such a limited presence at a mine site to overcome the
exemption in section 46.2(g)(2) would render the exemption meaningless. Here,
the record reflects that Thompson Electric’s employees were present at the mine
for a total of six days. On balance, I do not view as persuasive the
Secretary’s argument that a six day presence (one day in December 2014 and five
work days in April 2015) is sufficient to overcome the explicit exemption
promulgated by the Secretary in section 46.2(g)(2), given the limited scope of
the services rendered.

In apparent recognition that the
five days spent on reconnecting the dredge may not have been sufficient to
trigger the Part 46 training requirements, the Secretary asserts that Thompson
Electric’s presence at the mine would have been greater had it not abruptly
left the mine after being informed of MSHA’s jurisdiction. [5]
Sec’y Supp. Br. , at 2. However, given the parties’ stipulations, even if
finishing the limited task of reconnecting the dredge’s power supply required Thompson
Electric’s additional presence for a short period of time, the limited scope of
the services performed would still exempt Thompson Electric from the Part 46
training requirements.

I note that although Thompson
Electric has been relieved of its obligation to satisfy

Part 46 training requirements, it is still subject to the Secretary’s mandatory
safety and health standards. [6]
In fact, Thompson Electric requires its employees to tie down when there is a
danger of falling. See Jt. Stip. , at ¶ 15. Nevertheless, the Secretary
is seeking to impose the burden of formulation of a Part 46 training plan on a
contractor that has a very limited presence at a mine, despite the Secretary’s
own promulgation of the exception in section 46.2(g)(2).

In view of the above, the record stipulations
reflect that Thompson Electric is exempt from the training requirements of Part
46 as its presence at the Sober Mine was sufficiently limited in scope and
frequency. Accordingly, Citation No. 8842396 and Order No. 8842394 shall be vacated .

III.             
Fall Protection Citation

On April 29, 2015, an MSHA
inspector observed a Thompson Electric employee failing to utilize fall
protection when he was reaching for a power cable while standing on a dredge while
located approximately 13 feet above the ground. As a consequence, the MSHA
inspector issued Citation No. 8842392 alleging a violation 30 C.F.R. § 56.15005,
which requires that safety belts be worn when there is a danger of falling.

Thompson Electric has stipulated to
the fact of the violation of Citation No. 8842392.  Jt. Stip. , at ¶ 15. However,
the parties’ proffered settlement terms regarding Citation No. 8842392 reduce
the degree of negligence attributable to Thompson Electric from “moderate” to
“low,” with a corresponding proposed penalty reduction from $540.00 to $250.00.
The parties’ settlement terms seek to maintain the S&S designation. The
reduction in negligence and civil penalty is supported by the parties’
stipulation that the employee who committed the violation was suspended immediately
by Thompson Electric as he had been trained to wear fall protection. Jt.
Stip. , at ¶ 15.

The mitigating circumstances noted
above support the parties’ proposed reduction in negligence and civil penalty. Having
determined that Thompson Electric is subject to Mine Act jurisdiction, I
conclude that the proffered settlement is appropriate under the statutory
penalty criteria set forth in section 110(i) of the Mine Act. [7]
Consequently, the parties’ settlement terms regarding Citation No. 8842392 shall
be approved . As previously noted, the parties’ settlement terms are
contingent on final disposition of these matters. Thus, the parties’ have
reserved their right to appeal the jurisdictional question, as well as any
adverse finding regarding Part 46 applicability.

ORDER

In view of the above, Thompson Electric, Inc.,
as an independent contractor performing services at a mine, is a statutory
“operator” as contemplated by section 3(d) of the Mine Act. Accordingly, IT
IS ORDERED , consistent with the parties’ settlement terms, that Thompson
Electric, Inc. PAY , within 40 days of this Order, a $250.00 civil
penalty in satisfaction of Citation No. 8842392. [8]

IT IS FURTHER ORDERED that Citation
No. 8842396 and 104(g)(1) withdrawal Order No. 8842394, which concern the
training provisions of Part 46, ARE VACATED .

IT IS FURTHER ORDERED that upon
timely receipt of the $250.00 civil penalty, the captioned matters ARE
DISMISSED .

/s/
Jerold Feldman

Jerold Feldman

Administrative
Law Judge

Distribution:

Lisa Cottle, Esq., U.S. Department of Labor, Office of the
Solicitor, 1240 East Ninth Street, Room 881, Cleveland, OH 44199

Keith L. Pryatel, Esq., Kastner Westman & Wilkins, LLC,
3550 West Market Street, Suite 100, Akron, OH 44333

/acp     

[1] Thompson Electric is, in essence, the opposing party
to the Secretary’s cross-motion for summary decision on this jurisdictional
question.

[2] Section 46.3(a) provides:

[Operators] must develop and
implement a written plan, approved by [MSHA] under either paragraph (b) or (c)
of this section, that contains effective programs for training new
miners and newly hired experienced miners, training miners for new tasks,
annual refresher training, and site-specific hazard awareness training.

[3] Section 46.5(a) provides, in pertinent part:

… [Operators] must
provide each new miner with no less than 24 hours of training….
Miners who have not yet received the full 24 hours of new
miner training must work where an experienced miner can observe that
the new miner is performing his or her work in a safe and healthful
manner.

[4] Section 104(g)(1) of the Mine Act requires the
withdrawal from the mine of miners who have not received the requisite safety
training. 30 U.S.C. § 814(g)(1).

[5] The Secretary refers to MSHA’s Program Policy Manual,
which states that the term “extended” presence in section 46.2(g)(2) means more
than five consecutive work days.

Resp. Br. , at 18 (citing MSHA Program Policy Manual Vol. III, Part 46 at
p. 9 (May 16, 1996)). Although the stipulations reflect that Thompson Electric
was not present at the mine for five consecutive work days (it was absent on
April 28, 2015), nevertheless, as the Secretary is aware, the Commission is not
bound by pronouncements contained in MSHA’s policy statements.

Old Ben Coal Co. , 2 FMSHRC 2806, 2809 (1980).

[6] While I have found that the employees of Thompson
Electric are not “miners” as contemplated by the definition in section 46.2(g),
the provisions of 30 C.F.R. § 46.11 nevertheless require that its employees
must be provided site-specific hazard awareness training. Section 46.11 has not
been cited by the Secretary in this matter.

[7] 30 U.S.C. § 820(i) provides:

In
assessing civil monetary penalties, the Commission shall consider the
operator’s history of previous violations, the appropriateness of such penalty
to the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator’s ability to continue in business, the
gravity of the violation, and the demonstrated good faith of the person charged
in attempting to achieve rapid compliance after notification of a violation.

[8] Payment should be sent to the Mine Safety and Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390. Please include the Docket No. and A.C. No. noted in the
above caption on the check.