Secretary of Labor v. Brdaric Excavating, Inc.

Plain-English summary

Brdaric Excavating operated Buck Mountain Quarry and also owned a garage about one mile away that primarily serviced equipment used in its excavation and demolition business. The garage nevertheless repaired quarry vehicles and equipment, stored charging equipment used on quarry vehicles, and housed service trucks used at the quarry. After Brdaric twice denied MSHA inspectors access, the agency issued two access citations and six citations for conditions found during a later garage inspection. Judge John Kent Lewis held that the Mine Act broadly covers facilities used in mineral extraction and that the garage's recurring support for quarry equipment was more than minimal. He also found fair notice from the statute, prior cases, and an inspector's earlier warning that repairing mining equipment there would trigger MSHA jurisdiction. All eight citations were affirmed, and penalties totaling $2,987 were assessed.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(h), 803
• Outcome: Eight citations were affirmed, and Brdaric Excavating was ordered to pay $2,987.
• Key point: A garage outside the permitted mine area remains subject to MSHA when it regularly stores, services, or repairs equipment used in mining, even if most of its work supports nonmining operations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: 412-920-7240 / FAX: 412-928-8689

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

BRDARIC
EXCAVATING, INC.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. PENN 2012-313-M       

A.C.
No. 36-09216-289798

Docket
No. PENN 2013-54-M

A.C.
No. 36-09216-304156

Docket
No. PENN 2013-55-M

A.C.
No. 36-09216-304156

Mine:
Buck Mountain Quarry

ORDER DENYING RESPONDENT’S MOTION FOR
SUMMARY DECISION AND GRANTING SECRETARY OF LABOR’S MOTION FOR SUMMARY DECISION

Before:                                    Judge
Lewis

I. 
 PROCEDURAL HISTORY

On February 22, 2012, Citation No. 8655952
was issued against Brdaric Excavating Inc. (“BEI”) after John P. Brdaric Jr.
(“Brdaric”), the Buck Mountain Quarry controller, refused to allow an MSHA
inspector to enter the garage property, at 913 Miller Street, Luzerne,
Pennsylvania, to conduct an inspection. Again, on May 14, 2012, MSHA was denied
access to enter the garage property and Citation No. 8657882 was issued. On May
15, 2012, six citations were issued at the garage property for unsecured gas
cylinders (8657883), no open flame warning (8657884), a blocked travel
passageway (8657885), lack of electrical testing (8657886), an uninspected air
compressor (8657890), and no recorded workplace examination (8657891).

Both parties filed motions for summary
decision and a joint stipulation of facts on May 11, 2015. As part of the
stipulations, the parties have agreed that if the Commission or a court of
appeals determines that the garage is subject to MSHA jurisdiction, Citation
No. 8657883, 8657884, 8657885, 8657886, 8657890, and 8657891 will be affirmed
and assessed. Joint Stipulation. 73. [1]
 Conversely, if jurisdiction is not found, the aforementioned citations will be
vacated. J.S. 74

II.        STIPULATIONS

1.         The
citations at issue here involve conditions as they existed in February 2012 and
May 2012. The parties agree that the following recitation of material facts
accurately portrays conditions as they existed in 2012, unless otherwise
stated.

2.         Brdaric
Excavating, Inc. is a corporation organized under the laws of Pennsylvania.

3.         Until
his death in September 2013, John P. Brdaric, Jr. was the sole shareholder of
Brdaric Excavating, Inc.

4.         Brdaric
Excavating, Inc. provides excavation, site clearing, land grading, demolition,
and related services to residential and commercial customers.

5.         Brdaric
Excavating, Inc. has a website at www.brdaricexcavating.com.

6.         Until
his death in September 2013, John P. Brdaric, Jr. was listed with MSHA as the
controller of the Buck Mountain Quarry, a surface sandstone mine located in
Luzerne County, PA.

7.         Brdaric
Excavating, Inc. is the operator of Buck Mountain Quarry, and has been the
operator since March 2004.

8.         Brdaric
Excavating offers crushed stone, topsoil, clay, and other items from the
quarry.

9.         Brdaric
Excavating delivers products from the quarry to customers' sites, or the
customers can pick up material from the quarry.

10.       Brdaric
Excavating uses a variety of fixed equipment and vehicles at the quarry. Fixed
equipment there includes conveyors, crushers, and screens. Vehicles include
excavators, loaders, bulldozers, and a fuel truck.

11.       Buck
Mountain Quarry is a "mine" within the meaning of section 3(h) of the
Mine Act, 30 U .S.C. § 802(h), and is therefore subject to the jurisdiction of the
Mine Act.

12.       Brdaric
Excavating, Inc. has a non-coal surface mining permit from the Pennsylvania
Department of Environmental Protection, Bureau of Mining and Reclamation, to
operate Buck Mountain Quarry. The permit was issued on June 26, 1998.

13.       Ronald
A. Natt is an employee of Brdaric Excavating, Inc.

14.       Ronald
A. Natt is a mechanic who performed work at the Buck Mountain Quarry, in the
garage, and other places.

15.       Ronald
A. Natt is the primary person who performs servicing and repairs on equipment
and vehicles that Brdaric Excavating uses in the quarry, and for its non-quarry
related activities.

16.       Natt
does most of that servicing and repair work in the quarry itself, using oil,
parts, and equipment that are stored in the quarry.

17.       Natt drives
a Ford F750 pickup truck with a 14-foot auto-crane service body to the
locations throughout the quarry where he performs servicing and repairs.

18.       Natt
also utilizes the pickup performing repair and maintenance on Brdaric
Excavating equipment at non-quarry related sites when Brdaric Excavating is
performing site work and/or demolition work.

19.       The
pickup truck contains Natt's tools, welding equipment, and other items, such as
a grinder, all of which he uses when servicing and repairing equipment and
vehicles in the quarry and outside the quarry.

20.       The
pickup truck is owned by Brdaric Excavating.

21.       Several
of Brdaric Excavating's other employees, including Jamie Fedor, Matthew
Pacovsky, and Joseph Krogulski, spend at least a portion of their time working
at the quarry.

22.       Jamie
Fedor was a quarry foreman in 2012 and drove her personal pickup truck
throughout the quarry when she worked there.

23.       Joseph
Krogulski occasionally used welding equipment at the quarry; the equipment was
stored on a pickup truck that Krogulski occasionally drove on quarry property.

24.       Mr.
Krogulski also performs non-quarry work for Brdaric Excavating at sites where
Brdaric Excavating performs site work and demolition work.

25.       Matthew
G. Pacovsky is, and was during the relevant time frame, the safety director for
Brdaric Excavating.

26.       John
P. Brdaric, Jr. also owned a garage located at 913 Miller Street, Luzerne,
Pennsylvania.

27.       The
garage is a little over a mile away from the quarry, and the distance between
the quarry and the garage can be driven in about five minutes.

28.       The
garage is not on the permitted area of the Buck Mountain Quarry site.

29.       The
garage is roughly 100 feet by 75 feet and includes work areas, a small office,
and a bathroom. The work areas consist of four separate bays, accessed through
three separate garage doors.

30.       The
garage is primarily used by mechanic Ronald Natt, although other Brdaric
Excavating employees, including Joseph Krogulski and Matthew Pacovsky, also
occasionally perform work there, either assisting Natt or doing their own work.

31.       The
garage is used to service and repair equipment and vehicles. Service includes
oil changes, filter changes, chassis lubes, and hydraulic system service. State
inspections for vehicles are also performed in the garage. Repair work in the
garage includes repair to minor tools and saws.

32.       The
garage is also used to store oil, parts, air conditioning charging equipment,
and other items.

33.       An
inventory of the garage's contents is attached as Joint Exhibit A.

34.       The
vast majority of the vehicles and pieces of equipment that are serviced and
repaired in the garage are not used in the quarry, but instead are used for
demolition, land grading, and similar jobs at customer sites.

35.       The
vast majority of the parts, oils, and equipment stored in the garage are not
used to service and repair equipment and vehicles used in the quarry.

36.       The
vast majority of the machinery and equipment that is dedicated to the quarry
and never used by Brdaric Excavating in its other businesses at remote sites is
repaired and/or serviced at the quarry by Natt or Krogulski using their service
trucks, and the parts, oils and filters required for this service/repair work
are stored at the quarry.

37.       From
time to time Caterpillar and Commonwealth Equipment Company service quarry
equipment on the mine site using their own service vehicles and tools.

38.       Ronald
Natt services and repairs some equipment and vehicles in the garage that are
used in the quarry.

39.       For
example, according to Natt's deposition, Brdaric Excavating has "probably
15-20" Mack triaxle dump trucks that pick up materials at the quarry and
deliver the materials to customer sites.

40.       The
dump trucks perform no other work at the quarry except to pick up mined
materials from the quarry to be delivered to customer sites and to Brdaric
Excavating's demolition and site work businesses.

41.       The
dump trucks are used for other, non-quarry related purposes as well when
Brdaric Excavating is performing excavation or demolition work at customer
sites.

42.       Natt
services and repairs the dump trucks in the garage, usually about every 2,000
miles, using parts and oils that are stored in the garage.

43.       Parts
and oils used to service the dump trucks are stored in the garage.

44.       The
dump trucks also receive their state inspections in the garage.

45.       Natt
keeps a written log of the important or major things that he works on.

46.       A
copy of the log is attached as Joint Exhibit B.

47.       Entries
for 2012 include the following:

•           On January 19, 2012, when
the motor on a 988B wheel loader blew up at the quarry, Natt removed the motor
and took it to the garage for repairs. He then took the motor back to the
quarry to install it on the wheel loader.

•           On January 25, 2012, Natt
replaced a rear axle on one of the dump trucks that are used to make deliveries
from the quarry. The dump trucks are also used at off-site locations.

•           On January 27, 2012, Natt
repaired a 2004 White Mack Granite dump truck in the garage; that truck is used
to deliver materials from the quarry and is also used at off-site locations.

•           On January 28, 2012, Natt
serviced a Granite 55 dump truck in the garage; that  truck is used to deliver
materials from the quarry and is also used at off-site locations.

•           On April 5, 2012, Natt
serviced a Caterpillar 345 excavator in the garage; that excavator is used in
the quarry as well as off-site locations.

•           On May 6, 2012, Natt
serviced in the garage two 740 articulating Caterpillar trucks that are used in
the quarry as well as at off-site locations.

48.       The
remaining entries for 2012 on Natt's log show that all remaining work was
performed on non-quarry equipment either at the garage, or remote non-quarry
sites, or was performed at the quarry utilizing Natt's service truck.

49.       When
Natt is working in the garage, he parks his Ford F750 pickup truck in the
garage.

50.       When
the pickup truck needs servicing or repairs such as an oil change or tire
change, Natt performs that work in the garage.

51.       The
Ford F750 pickup truck gets its state inspection in the garage as well.

52.       The
welding truck that Joseph Krogulski occasionally uses at the quarry is also
serviced in the garage.

53.       Jamie
Fedor's personal pickup truck, which she drives on quarry property, has been
serviced at the garage one or two times, and gets its state inspection there.

54.       Brdaric
Excavating stores air conditioning charging equipment in the garage that is
used to charge vehicles used in the quarry.

55.       The
air conditioning charging equipment is also used to charge vehicles that are
not used in the quarry.

56.       John
P. Brdaric, Jr. wrote to MSHA on February 28, 2012 regarding Citation #8655952
stating that the garage is not on mine property, that mine equipment is not
serviced at the garage, and that the garage is not owned by Buck Mountain
Quarry. The letter is misdated February 28, 2011.

57.       Mr.
Brdaric also related that MSHA had previously declined to exercise jurisdiction
over the garage during Inspection #0899151 on February 28, 2008.

58.       A
copy of Mr. Brdaric's letter is attached as Joint Exhibit C.

59.       A copy
of MSHA's Inspection Report for Event #0899151 from February 28, 2008 is
attached as Joint Exhibit D.

60.       In
addition to its quarry activities, Brdaric Excavating also performs demolition,
land grading, and similar work at customer sites.

61.       Brdaric
Excavating employees who work at the quarry also perform work at customer
sites.

62.       Ronald
Natt, for example, drives the Ford F750 pickup truck to customer sites to
service and repair equipment and vehicles.

63.       Natt
does not know the amount of time he spends in the garage as compared to the
time he spends at the quarry or at customer sites, and Brdaric being a
family-owned business does not keep records of the work he does other than Mr.
Natt's handwritten log.

64.       Some
of the vehicles and equipment that Brdaric Excavating uses in the quarry are
also used at customer sites.

65.       The
Caterpillar 345 excavator, for example, is used in demolition work at customer sites.

66.       In
addition, the Mack triaxle dump trucks are used at customer sites to haul
material.

67.       On
February 22, 2012, John P. Brdaric, Jr., denied MSHA inspectors access to the
garage located at 913 Miller Street, Luzerne, Pennsylvania, on the ground that
the garage was outside MSHA’s jurisdiction.

68.       On May
14, 2012, John P. Brdaric, Jr., denied MSHA inspectors access to the garage
located at 913 Miller Street, Luzerne, Pennsylvania, on the ground that the
garage was outside MSHA's jurisdiction.

69.       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 Act.

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

71.       True
copies of the citations at issue in this proceeding were served on Respondent
as required by the Act.

72.       The
penalties at issue would not affect Brdaric Excavating's ability to remain in
business.

73.       If the
Commission (or, if the matter is appealed, a court of appeals) determines that
the garage located at 913 Miller Street, Luzerne, Pennsylvania, is within
MSHA's regulatory jurisdiction, the parties agree that the citations in docket
PENN 2013-55M (citations 8657883, 8657884, 8657885, 8657886, 8657890, and
8657891) and proposed penalties for that docket ($875) should be affirmed and
assessed. This stipulation is not intended to waive Brdaric Excavating's right
to seek judicial review of any adverse decision on the jurisdictional question
entered by the Administrative Law Judge or the Commission in an appropriate
court of appeals.

74.       If the
Commission (or, if the matter is appealed, a court of appeals) determines that
the garage located at 913 Miller Street, Luzerne, Pennsylvania, is not within
MSHA's regulatory jurisdiction, the parties agree that the citations in docket
PENN 2013-55-M (citations 8657883, 8657884, 8657885, 8657886, 8657890, and
8657891) should be vacated and that the proposed penalties for that docket
should not be assessed. This stipulation is not intended to waive the
Secretary's right to seek judicial review of any adverse decision on the
jurisdictional question entered by the Administrative Law Judge or the
Commission in an appropriate court of appeals.

75.       John
P. Brdaric, Jr. died in September 2013.

76.       Following
John P. Brdaric, Jr.'s death, Brdaric Excavating's stock was evenly divided
between his daughter, Jamie Fedor, and his son, John P. Brdaric III.

77.       Ownership
of the garage transferred to Jamie Fedor and John P. Brdaric III, also equally
divided.

78.       Brdaric
Excavating continues to dispute MSHA jurisdiction over the garage.

J.S.
1-78.

III.       CONTENTIONS
OF THE PARTIES

The
Secretary asserts that the garage at 913 Miller Street, Luzerne, Pennsylvania
is a mine under Section 3(h)(2), 30 U.S.C. §802(h)(2), of the Mine Act, and it
falls under MSHA’s jurisdiction. Sec’y.’s Mot. Summ. Decision 6-14.[2] Specifically,
the Secretary contends that the garage is a facility that is used to service
and repair equipment used at Buck Mountain Quarry, which qualifies the garage
as a mine. S.M.S.D. 6-11.

Conversely,
Respondent argues that the garage is not subject to MSHA jurisdiction, but
instead OSHA jurisdiction. R.M.S.D. 4. Respondent contends that the vast
majority of machines serviced and repaired at the garage are not an integral
part of extracting minerals or mining, so the garage should not be subject to
MSHA jurisdiction. R.M.S.D. 18.

IV.       DISCUSSION

A.               
Summary
Decision Standard

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

Here the parties have stipulated to all
material facts, and summary decision is appropriate.

B.                
Findings
of Fact and Conclusions of Law

Under the Mine Act, MSHA has
jurisdiction over “each coal or other mine, the products of which enter
commerce, or the operations or products of which affect commerce…each operator
of such mine, and every miner in such mine.” 30 U.S.C. § 803. Section 3(h)(1)(C)
defines a “coal or other mine” as:

lands, excavations…structures,
facilities, equipment, machines, tools, or other property including
impoundments, retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits in nonliquid form…the
milling of such minerals, or the work of preparing coal or other minerals.

30
U.S.C. § 802(h)(1)(C).

The Mine Act’s jurisdiction is broadly
defined to include facilities and equipment to be used in mineral extraction
and milling. See §802(h)(1)(C). At issue here is a facility. This facility
is a garage that stored air conditioning charging equipment that is used to
charge vehicles used in the quarry.[3]
J.S. 54. Other equipment, such as dump trucks, an excavator, a 988B wheel
loader motor, and articulating caterpillar trucks were repaired at the garage. J.S.
47, 54. The welding truck used by BEI employee Joseph Krogulski, which is used
occasionally at the quarry, is serviced at the garage. J.S. 32, 52. Further,
the truck used by BEI employee Ronald Natt (“Natt”) to service equipment at the
quarry is repaired and kept parked at the garage; and, Natt is the primary
person who repairs and services equipment and vehicles BEI uses in the quarry. J.S.
15, 17, 49, 50. With the garage being used for storage and repairs of the
aforementioned quarry equipment and vehicles, this garage satisfies the plain
reading of a facility used in mineral extraction and milling because the
vehicles and charging equipment are used at the quarry. Thus, the garage is a
mine and subject to MSHA jurisdiction.

The undersigned finds the statute’s
language to be clear and unambiguous. Therefore, the plain language reading is
appropriate in applying the “unambiguously expressed intent of Congress.” Chevron U.S.A.
Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842–43 (1984). Further
analysis is consequently unnecessary.

Nonetheless, even when proceeding to the
second prong of Chevron, MSHA jurisdiction over the garage is still
appropriate. Chevron U.S.A. Inc. at 843. Chevron’s second prong
asks “whether the agency’s answer is based on a permissible construction of the
statute.” Id. “Deference is accorded to ‘an agency’s interpretation of
the statute it is charged with administering when that interpretation is
reasonable.’”
Lone Mountain Processing, 20 FMSHRC 927, 937 (Sept. 1998) (citing Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994)). The
Secretary’s interpretation of the Mine Act should be affirmed when it is one of
the “permissible interpretations the agency could have selected.” Lone
Mountain Processing, 20 FMSHRC at 937 (citing Chevron, 467 U.S. at
843; Joy Techns., Inc. v. Sec’y of Labor, 99 F.3d 991, 995 10th Cir.
1996), cert. denied, 117 S. Ct. 1691 (1997)).

The Secretary’s interpretation is
reasonable, considering the Act’s legislative history. The Senate Committee
stated its intention that “what is considered to be a mine and to be regulated
under this Act be given the broadest possible interpretation, and … that doubts
be resolved in favor of inclusion of a facility within the coverage of the
Act.” S. Rep. No. 181, 95th Cong., 1st Sess. 14
(1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 at 602
(1978). The Secretary’s interpretation also supports the general purpose of the
Act
“to promote safety and health in the mining industry.” S. Rep. No. 181 at 1.

The Commission has previously affirmed
the Secretary’s broad interpretation of what constitutes a mine. For example,
the Commission has held that items inside of a garage used primarily for a sand
and gravel mine such as a stove, grinder, and cylinders are “mines” for
purposes of jurisdiction. W.J. Bokus Indus., Inc., 16 FMSHRC 704
(Apr. 1994).
While W.J.Bokus does not specifically reach the issue of jurisdiction
for a garage, the Commission found that because miners worked in the garage and
the cylinders, grinder, and stove were worked on by the miners or could affect
the miners, these items were found to be mines. Id. at 708. Following
the Commission’s expansive finding that “the stove warmed the garage where
miners worked and, thus, is an item of equipment used or to be used in mining,”
it logically follows that a garage that shelters miners from weather or other
dangers would too be a facility used in mining. Id. at 708. The garage at
issue—which stores and repairs quarry equipment—falls under the MSHA’s jurisdictional
reach.

Addressing the Respondent’s argument
that the distance between the garage and quarry of approximately one mile would
preclude MSHA from exercising jurisdiction, this Court finds the distance to be
minimal and in any case irrelevant to finding whether the garage is used in
mineral extraction or milling.  The Commission has found that a central supply
shop that stored mining materials and supplies—although located at least one
mile away from one of the operator’s mines—was under MSHA jurisdiction.[4] Jim
Walter Res., 22 FMSHRC 21, 26 (Jan 2000). Thus, the garage’s distance of slightly
more than one mile from Buck Mountain Quarry is not determinative of whether it
would fall under MSHA jurisdiction.

The Respondent’s primary argument is
that the garage is only used occasionally for isolated repairs. However, the
Commission has held that only de minimis uses would prevent services
from being subject to the Act. Otis Elevator Co., 11 FMSHRC
1896, 1900–01 (Oct. 1989). “An independent contractor's presence at a mine may
appropriately be measured by the significance of its presence, as well as by
the duration or frequency of its presence.” Lang Bros., Inc., 14 FMSHRC
413, 420 (Mar. 1992). While the Respondent argues only six vehicles used at the
quarry were serviced or repaired at the garage in January, April, and May, the
regularity of use and relationship between Buck Mountain Quarry and the garage
is significant. J.S. 47. Six vehicles were repaired, air conditioning charging
equipment used for quarry vehicles was stored at the garage, and Natt’s truck
used at the quarry was stored and serviced at the garage. J.S. 15, 17, 47,
49, 50, 54. This
is a regular relationship that is more than de minimis and justifies
MSHA jurisdiction.

ALJ decisions have followed the
expansive view on jurisdiction taken by the Secretary. In Associated Sand
& Gravel Co. the ALJ found that “if a facility is used in support of
mining activities to any extent, MSHA may choose to assert its jurisdiction.”
17 FMSHRC 1385, 1387 (Aug. 1995)(ALJ). W.F. Saunders & Sons also
held “[i]t is immaterial that some of the equipment and machinery, or even most
of it, may have been used in areas that may not have been under MSHA's
jurisdiction.” W.F. Saunders & Sons, 1 FMSHRC 2130, 2132 (Dec. 1979)(ALJ).
Additionally, in Austin Powder Co., the ALJ found that a facility
storing only 10% of the material used in a mining process “is more than enough
to establish that its use is not de minimis. Using up to 10% of the
stored materials would not signal ‘that it would be difficult to conclude that
services were being performed.” Austin Powder Co., 37 FMSHRC
1337,1356-57 (June 2016)(ALJ) citing Otis Elevator Co., 11 FMSHRC
1896, 1900-01 (Oct. 1989). These broad jurisdictional findings support the
reasonableness of MSHA jurisdiction for the garage at issue.

The Respondent’s argument that the
garage does not share corporate ownership with the quarry is not relevant to
this Court’s determination as to whether the garage qualifies as a mine under
the Act. The D.C. Circuit court has held that mine jurisdiction “does not
require that those structures or facilities owned by a firm that also engages
in the extraction of minerals from the ground or that they be located on
property where such extraction occurs.” Carolina Stalite Co., 734 F.2d
1547, 1552 (D.C. Cir. 1984). Thus, it is not dispositive that Buck Mountain
Quarry is operated by BEI (of which John P. Brdaric was the sole shareholder)
and the garage was owned by Brdaric in an individual capacity.

MSHA jurisdiction is appropriate under
the plain reading of the Mine Act and under the Secretary’s interpretation. Therefore,
Citation No. 8655952 and 8657882 denying MSHA inspectors access to the garage
are affirmed.

C.                
MSHA/OSHA
Interagency Agreement

The Interagency Agreement between MSHA
and OSHA holds that “the Federal Mine Safety and Health Act…authorizes the
Secretary of Labor to promulgate and enforce safety and health standards
regarding working conditions of employees engaged in underground and surface
mineral extraction (mining), related operations, and preparation and milling of
the minerals extracted.” MSHA/OSHA Interagency Agreement, 44 Fed. Reg. 22827,
22827 (March 29, 1979), amended by 48 Fed. Reg. 7521 (Feb. 22, 1983)
(“Interagency Agreement”). Moreover, the agencies have stated that “the general
principle is that as to unsafe and unhealthful working conditions on mine sites
and in milling operations, the Secretary will apply the provision of the Mine
Act and standards promulgated thereunder to eliminate those conditions.” Id.

The ALJ further notes that Point B.5. of
the MOU specifically states that any jurisdictional “doubts” as to whether a
physical establishment is subject to either authority by MSHA or OSHA should be
“resolved in favor of the inclusion of a facility within the coverage of the
Mine Act.” Id. at 22828; Shamokin Filler Co., 33 FMSHRC 725, 728
(March 11, 2011) (ALJ). As a result, I reject the Respondent’s assertion that
OSHA should have jurisdiction over the garage, because the garage falls under
sections 802 and 803’s definition of a mine. 30 U.S.C. §§802(h)(1), 803.

Moreover, MSHA affords more protection
for those working in mining conditions than OSHA. If MSHA jurisdiction was not
asserted over this garage, there would not be adequate protection for the
individuals working on mining equipment and there would be no liability for the
garage operator if the mechanics improperly or inadequately repair or service
mining equipment. In Shamokin Filler Co., the Third Circuit emphasized
“[b]ecause of the dangers inherent in mining, Congress also gave the Secretary
more rigorous enforcement mechanisms under the Mine Act than under the OSH
Act.” Shamokin Filler Co., 772 F.3d 330, 333 (3d Cir. 2014). MSHA
jurisdiction provides for protection at both the quarry and the garage.

D.               
Fair
Notice

Under
the Mine Act, facilities involved in mineral extraction or milling are subject
to MSHA jurisdiction. 30 U.S.C. §803. This statute consequently provides notice
of jurisdiction for the garage at issue here because the garage repaired and
stored equipment and vehicles used in mineral extraction and milling at Buck
Mountain Quarry. Further, notice of MSHA jurisdiction in garages and shops is
available in the similar cases, such as, W.J. Bokus and Jim Walters
cases. W.J. Bokus, 16 FMSHRC at 708 (finding jurisdiction over a stove,
grinder, and cylinder inside a garage); Jim Walter Res., 22 FMSHRC at
28 (finding jurisdiction over a central supply shop).

It is not necessary for MSHA to give
specific notice to the Respondent that the garage could be subject to MSHA
jurisdiction. Nonetheless, the Secretary quoted MSHA Inspector William
MacDonald’s notes in 2008 stating he “[d]iscussed issue with the garage area
and explained MSHA has jurisdiction over the garage area where mining equipment
are [sic] repaired in this area.” S.M.S.D. at 13.  He also wrote “[t]he company
has decided as of today that no mining equipment will be repaired in the garage
area.” Id. The Secretary’s evidence of a MSHA Inspector’s notes in Joint
Exhibit D, show further notice given specifically to Buck Mountain Quarry that
use of the garage for mining equipment repairs would invoke MSHA jurisdiction. See
id. Accordingly, the Respondent has not been deprived of due process in
having its garage subject to MSHA jurisdiction.

V.        ORDER

The undersigned finds that MSHA has
jurisdiction over the garage at issue, and that the Respondent had sufficient
fair notice of the law. Accordingly:

The Respondent’s Motion for Summary
Decision is DENIED; and

The Secretary’s Motion for Summary
Decision is GRANTED.

Therefore,
it is ORDERED that Citation No. 8655952 in PENN 2012-313-M and Citation
No. 8657882 in PENN 2013-54-M should be affirmed.[5]

It is further ORDERED that the
six citations in PENN
2013-55-M (Citation No. 8657883, 8657884, 8657885, 8657886, 8657890, and
8657891) and proposed penalties for that docket should be affirmed and assessed
as per the parties Joint Stipulations. Accordingly, the Respondent shall pay
$2,987.00 within 30 days of this order.[6]

/s/ John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

Raymond
P. Wendolowski, Esq., P.O. Box 1313, Wilkes-Barre, PA 18703, [email protected]

Michael
P. Doyle, Esq., U.S. Department of Labor, 170 S. Independence Mall West, Suite
630 E, Philadelphia, PA 19106, [email protected]

[1] Joint
Stipulations will hereinafter be cited as J.S. followed by the stipulation
numbers.

[2] Hereinafter,
the Secretary’s Motion for Summary Decision that was submitted on May 11, 2015
shall be abbreviated S.M.S.D, and Respondent’s Motion for Summary Decisions
that was submitted on May 11, 2015 shall be abbreviated R.M.S.D.

[3]
Buck Mountain Quarry is a mine that offers crushed stone, topsoil, clay, and
other items from the quarry. J.S. 6,8.

[4] The Central
Supply shop was one mile from the closest mine site, six miles from two mines,
and twenty-five miles from the farthest mine owned by Jim Walters Resources. Jim
Walter Res., 22 FMSHRC at 22.

[5] The parties
stipulated by email on February 11, 2016, that Citations 8655952 and 8657882
should be affirmed, and the related penalties assessed, if jurisdiction is
found.

[6] 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