Secretary of Labor v. Empresas Mundo Real, Inc.

Plain-English summary

Empresas Mundo Real assigned a quarry mechanic to operate a rented crane while building a concrete batch plant at its Puerto Rico mine, but did not first provide the required task training. The company argued that OSHA, rather than MSHA, controlled the construction site because completed concrete batch plants fall under OSHA jurisdiction. Judge Richard W. Manning held that MSHA retained jurisdiction while the plant was still under construction on mine property because the interagency agreement shifts authority only after aggregate arrives at the completed plant's stockpile. He also found that the mechanic was a miner under the Mine Act and the training rule because he worked at the mine and was a construction worker exposed to mining hazards. The Judge granted summary decision to the Secretary, affirmed the training order as issued, and assessed the proposed $212 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.2(g)(1) and 46.7(a)
• Outcome: The task-training order was affirmed, the operator's summary-decision motion was denied, and a $212 penalty was assessed.
• Key point: MSHA jurisdiction covered construction of a concrete batch plant on mine property until the interagency agreement's event transferring authority to OSHA occurred.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

November 9, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

EMPRESAS
MUNDO REAL, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2014-236-M

A.C.
No. 54-00447-344931

Cantera
Mundo Real

ORDER GRANTING
THE SECRETARY’S MOTION FOR SUMMARY DECISION

ORDER DENYING
RESPONDENT’S MOTION FOR SUMMARY DECISION

ORDER TO PAY
CIVIL PENALTY

Before:           
Judge Manning

This case is before me upon a petition
for assessment of civil penalty filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration (“MSHA”), against Empresas Mundo
Real, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). Respondent operates a
crushed limestone quarry in Puerto Rico. Before the case was assigned to me, the
parties filed cross-motions for summary decision. The parties agreed to 13
stipulated facts, presented the deposition transcripts of three individuals,
and provided other documents. The parties both assert that no material facts
are in dispute. The only issue in dispute in this case is whether MSHA had
jurisdiction to issue the subject order of withdrawal.

After the case was assigned to me, I
ordered the parties to file supplemental briefs to address issues that were not
discussed in their cross-motions. For reasons that follow, the Secretary’s
motion is GRANTED and Respondent’s motion is DENIED.

I.  BACKGROUND

On January 7, 2014, MSHA Inspector Isaac
E. Villahermosa issued Order No. 8733455 to Respondent under section 104(g)(l)
of the Mine Act, 30 U.S.C. § 814(g)(1), alleging a violation of section 46.7(a)
of the Secretary's safety standards. 30 C.F.R. § 46.7(a). The order states, in
part:

A miner had not
received appropriate task training before being assigned to use the Grove Model
RT625 crane. The miner had experience operating another crane. The mine operator
was aware of the part 46 training requirements.

Inspector
Villahermosa determined that an injury was unlikely, that the violation was not
of a significant and substantial (“S&S”) nature, but that any injury could
reasonably be expected to be fatal. He determined that Respondent’s negligence
was high and that one person would be affected. Section 46.7(a) provides, in part,
that every mine operator “must provide any miner who is reassigned to a new
task in which he or she has no previous work experience with training in the
health and safety aspects of the task to be assigned[.]” The Secretary proposed
a penalty of $212.00 for this order.

II.  STIPULATED
FACTS

1.      The Federal Mine
Safety and Health Review Commission has jurisdiction over these proceedings
pursuant to section 105(d) of the Mine Act, 30 U.S.C. § 815(d).

2.      Respondent
Empresas Mundo Real was/is a mine within the meaning of Section 4 of the
Federal Mine Safety and Health Act, 30 U.S.C. § 804, and has/had products which
entered interstate commerce and/or operations or products which affected
interstate commerce within the meaning of § 4 at the time of the violation
alleged in the citation. Respondent operates a crushed stone mine in Isabela,
Puerto Rico.

3.      Respondent
Empresas Mundo Real was/is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 801 et seq. at the time
of the violation alleged in the citation.

4.      Santiago Varela
is the President of Empresas Mundo Real.

5.      Eddie Cajigas
has worked for Empresas Mundo Real for twelve years as a welder and maintenance
person at the mine’s quarry. Mr. Cajigas supervisor is Jorge Crespo.

6.      On November 2013,
Empresas Mundo Real rented a “Grove” crane. The crane was used to assist in the
construction of a silo and concrete plant at the mine. Respondent intended to use
the silo and concrete plant to store sand and gravel and manufacture concrete.
Eddie Cajigas and other mechanics repaired the crane before Respondent put it
in service. Thereafter, Mr. Varela instructed Mr. Cajigas to operate the crane
to collect materials - beams, channels and angle irons - that would be used to
build the concrete plant.

7.      Due to adverse
economic conditions in Puerto Rico at the time of the construction of the silo
and concrete plant, Respondent only operated its Quarry three days each week;
Mr. Cajigas worked in the Quarry those three days. On the remaining two days
each week, Mr. Cajigas worked on the construction of the silo and concrete
plant. He did so between November 2013 and August 2014.

8.      Santiago Varela
supervised Mr. Cajigas at the construction site. Mr. Cajigas received one pay
check for working both places.

9.      Empresas Mundo
Real did not train Mr. Cajigas to operate the “Grove” crane before it instructed
him to do so.

10.  On or about
January 7, 2014, MSHA Inspector Isaac Villahermosa conducted an inspection of
Respondent’s Cantera Mundo Real Mine.

11.  At the end of his
inspection, Mr. Villahermosa issued one citation which alleged that respondent
violated 30 C.F.R. § 46.7(a) because it did not provide appropriate task
training to Mr. Cajigas before it assigned him to operate the “Grove Crane.” The
agency assessed a penalty of $212.00 for the violation. Respondent timely
contested the citation.

12.  Empresas Mundo
Real trained Mr. Cajigas to operate the “Grove” crane on January 9, 2014.

13.  In the interest
of judicial economy, the parties hereby request that the Court resolve this
citation via Motions for Summary Judgment.

III.  SUMMARY OF
PARTIES’ ARGUMENTS

On February 25, 2015, the Secretary
filed a Motion for Summary Judgement and Memorandum of Law in Support of the
Motion in which he argued that no material facts were in dispute, that
Respondent’s mechanic, Eddie Cajigas, was a miner, and that Respondent did not
train Cajigas in the operation of its “Grove” crane before assigning him to
operate it, thereby violating section 46.7(a) of the Secretary’s regulations. Sec’y
Mot. 1. The Mine Act defines a “miner” as “any individual working in a coal or
other mine.” 30 U.S.C. § 802(g); Sec’y Memo. 4-5. The Secretary asserted that,
because Cajigas’ was working to construct the silo and concrete plant “at the
mine,” he was a “miner” under the Act. Sec’y Memo. at 5; Jt. Stip. 6. According
to the Secretary, “Respondent intended to use the silo and concrete plant to store
sand and gravel – which it extracted from its quarry – and to manufacture
concrete.” Id. Further, Crespo and Varela supervised Cajigas while he
worked at the construction site and Cajigas was issued one paycheck for his
work at the quarry and construction site. Sec’y Memo. 5-6. Given that Respondent
had stipulated that Cajigas was not trained in the operation of the crane
before he was tasked with operating it, the Secretary argued that Respondent
violated section 46.7(a) which requires, in pertinent part, that every mine
operator “must provide any miner who is reassigned to a new task in which he or
she has no previous work experience with training in the health and safety
aspects of the task to be assigned[.]” 30 C.F.R. § 46.7(a); Sec’y Memo at 6. Finally,
the Secretary argued that the proposed penalty of $212.00 is appropriate and
should be affirmed. Sec’y Memo 6-7.

On March 14, 2015, Respondent filed a responsive
Motion for Summary Judgement in which it argued that the concrete plant being
constructed did not come within the Act’s definition of a “mine.” Empresas Mot.
1-3. Respondent cited the “MSHA/OSHA Interagency Agreement” for the proposition
that the concrete plant under construction was separate from the mine and came
under the jurisdiction of the Occupational Safety and Health Administration (“OSHA”)
and not MSHA. Id. at 3.  Respondent argued that training under the cited
standard was not required because MSHA did not have jurisdiction over the
concrete plant and the order should be vacated.

This case was assigned to me on
September 3, 2015. On September 17, 2015, I issued an Order to File
Supplemental Briefs in which the parties were instructed to address the
following issues. First, does the evidence provided establish that Respondent
was constructing a batch plant, as that term is used in the Interagency
Agreement, on the same property as the Cantera Mundo Real? Second, if a batch
plant is generally considered by the Department of Labor to be under the
jurisdiction of OSHA whether or not located on mine property, would the batch
plant being constructed be subject to OSHA jurisdiction once it is completed? Third,
is the construction of a concrete batch plant at a mine site subject to OSHA or
MSHA jurisdiction? Fourth, should the fact that Cajigas worked at the quarry
and also operated the crane at the batch plant being constructed affect the
outcome of this case?

The Secretary, in his Supplemental
Memorandum of Law in Support of the Motion, argues that the Interagency
Agreement makes clear that OSHA’s jurisdiction over a concrete batch plant
commences only after the completion of construction of the plant and the
arrival of sand and gravel or aggregate at the plant’s stockpile. Sec’y Supp.
Memo. at 2-3. Because it is undisputed that a concrete batch plant at the mine
site was only under construction, OSHA did not have jurisdiction. Id. at
1-2. The language of the Interagency Agreement provides that MSHA retains
jurisdiction over employee safety and health at mines during the construction
of concrete batch plants at mine sites. Id. at 3. Moreover, the
Secretary points to the legislative history of the Act and Commission case law
which states that jurisdictional doubts should be resolved in favor of coverage
by the Mine Act. Id. at 4. The Secretary again argues that Cajigas was a
miner because he was working at the mine and, in the alternative, that he was a
construction worker at a mine and was covered by the Mine Act. Id. at
4-7. Finally, the Secretary asserts that Respondent exposed its employees to
potentially serious injuries through Cajigas’ operation of the crane. Id.
at 8. In support, the Secretary asserts that when the crane arrived on site it
was stored in the mine’s maintenance area for three to four months and then, at
some point, Respondent’s mechanics assisted Cajigas in repairing and testing
the crane to make sure that it was working before Cajigas moved the crane from
the mine’s maintenance area to the construction site where it was used to
construct the concrete batch plant. Id. at 7-8 (citing Varela Depo.; Tr.
14-18, and Cajigas Depo Tr. 20).

Respondent, in its Supplemental
Memorandum concedes that the batch plant was under construction but argues
that, because there was no extraction of material from the earth nor milling of
that material at the construction site, MSHA did not have jurisdiction. Empresas
Supp. Memo. 1. Moreover, Respondent argues that the Interagency Agreement
unambiguously states that concrete batch plants come within OSHA’s jurisdiction
and not MSHA’s. Id. at 2. Further, Respondent argues that it would be
illogical to grant jurisdiction to MSHA during the construction of the batch
plant, since it would impose two distinct sets of safety guidelines on the
plant: one during the construction phase and one during operation of the plant.
Id. Finally, Respondent argues that the fact that Cajigas was an employee
of the quarry should have no bearing on the question of jurisdiction over the
construction site. Id. at 3.

IV.  DISCUSSION
AND ANALYSIS

Commission Procedural Rule 67 sets forth
the grounds for granting summary decision, as follows:

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) That the
moving party is entitled to summary decision as a matter of law.

29
C.F.R. § 2700.67(b). The Commission has long recognized that “‘summary decision
is an extraordinary procedure.’” Energy West Mining Co., 16 FMSHRC 1414,
1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981)). The Commission has also analogized Commission Procedural Rule 67 to
Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc., 29
FMSHRC 4, 9 (Jan. 2007); See Also Energy West, 16 FMSHRC at 1419 (citing
Celotex Corp v. Cartrett, 417 U.S. 317, 237 (1986)).

I find that the construction site was
subject to MSHA jurisdiction. It is undisputed that Respondent’s Cantera Mundo
Real Mine is a “mine” within the meaning of the Act and is subject to the
jurisdiction of MSHA and that the construction of the silo and concrete batch
plant occurred “at the mine.” Jt. Stips. 2, 3, 6. MSHA has jurisdiction over
the extraction of material from the earth and the milling of that material to
obtain the desired product. Because what constitutes milling, as opposed to
manufacturing, is not always clear, MSHA and OSHA have entered into an agreement
which provides guidance concerning the boundary between the two agencies’
jurisdiction. MSHA/OSHA Interagency Agreement, 44 Fed. Reg. 22827 (Apr. 17, 1979),
amended by 48 Fed. Reg. 751 (Feb. 22, 1983) (“Interagency Agreement”).

The Interagency Agreement explicitly states
that concrete batch plants, “whether or not located on mine property,” are
subject to OSHA jurisdiction. Id. at ¶B.6. However, Appendix A to the agreement,
in a section under the heading “MSHA Authority Ends - OSHA Authority Begins,”
states that, for concrete ready-mix or batch plants, OSHA regulatory authority
“commences after arrival of sand and gravel or aggregate at the stockpile.” Id.
at Appendix A. The Secretary asserts, and I agree, that the language in
Appendix A of the agreement makes clear that a “triggering event” must occur
for MSHA authority to end and OSHA authority to begin, namely the arrival of
sand, gravel or aggregate at the batch plant stockpile. Accordingly, I find
that, consistent with Interagency Agreement, until such triggering event
occurs, MSHA retains authority. Here, the proposed plant was located on mine
property, was still under construction, and the event which would have
triggered OSHA jurisdiction had not yet occurred. It is the operation of batch
plants that is subject to OSHA jurisdiction under the Interagency Agreement.

While Respondent argues that it would be
illogical to impose two different sets of safety guidelines over the area based
upon whether the plant was under construction versus when it was in operation,
I find that the Interagency Agreement does just that. It is undisputed that the
plant was being built “at the mine.” Jt. Stip. 6. The fact that the plant was
being built at the mine certainly lends credibility to the Secretary’s concern
that individuals constructing the plant would be exposed to mining hazards. While
Respondent may disagree with the Secretary’s determination as to when
jurisdiction begins and ends, I find the Secretary’s determination that “MSHA
retains jurisdiction over employee health and safety at mines during the
construction of concrete batch plants” to be reasonable.[1]
Sec’y Supp. Memo. at 3. Accordingly, I find that MSHA had jurisdiction over the
construction site and crane at the time the order was issued. In reaching this
finding I am mindful of Congress’ direction that “what is considered to be a
mine and to be regulated under this Act be given the broadest possibl[e]
interpretation, and it is the intent of this Committee that doubts be resolved
in favor of inclusion of a facility within the coverage of the [Mine] Act.” S.
Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor,
Comm. on Human Res., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 602 (1978).

The record does not disclose the
distance between the construction site and the quarry/plant site but they were
all on the same area of land. The parties stipulated that Respondent was
constructing a “silo and concrete plant at the mine.” Jt. Stip. 6
(emphasis added); (Varela Depo. Tr. 49-50).

I find that Cajigas was, without
question, a “miner” both as that term is defined in the Act and as used in the
cited regulation. The Act defines a “miner” as “any individual working in a
coal or other mine.” 30 U.S.C. § 802(g). Cajigas was clearly working at the
mine. The parties stipulated that Cajigas was a welder and maintenance person
at the quarry, and repaired and operated the crane while working to construct
the batch plant. Jt. Stips. 5, 7. Moreover, section 46.2(g)(1) defines a “miner”
as “[a]ny 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 . . . [a]ny construction worker who is exposed to
hazards of mining operations.” 30 C.F.R. § 46.2(g)(1) (emphasis added).

Respondent did not challenge the merits
of the order and acknowledged that Cajigas had not been provided training as
required by section 46.7(a). Jt. Stip. 9. The Secretary, in his motion and
memo, set forth facts in support of his proposed penalty of $212.00. Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. Respondent had a history of eight violations
during the 15 months preceding the issuance of the subject citation. (Exhibit A
to Petition for Assessment of Civil Penalty). Respondent is a small operator
and worked only 19,272 hours. Id. The Secretary designated the
negligence as “high” because Crespo told Varela that Respondent should train
Cajigas how to operate the crane before it assigned him to do so, but Varela
forgot to do so. Sec’y Mot. 7 (citing Exhibit 1 of Motion, Villahermosa
Declaration). The Secretary determined that an injury was unlikely because Cajigas
had received training on other cranes; however, if a miner were struck by a
load being transported, the Secretary determined that the injury could
reasonably be expected to be fatal. Sec’y Mot. 7. The Secretary determined that,
because Respondent failed to train Cajigas despite being told to do so, the
violation was not abated in good faith. Id. I note however, that
Respondent fully trained Cajigas on January 9. Finally, the Secretary asserted
that Respondent could not “reasonably contend that a $212 penalty would
adversely affect its ability to remain in business.” Id. Respondent did
not challenge the inspector’s findings regarding gravity, negligence, or the other
penalty criteria in either its answer, its responsive motion for summary
decision, or supplemental memorandum. I conclude that the Secretary’s proposed
penalty of $212.00 is appropriate.

V.  ORDER

The Secretary’s Motion for Summary
Decision is GRANTED. Respondent’s Motion for Summary Decision is DENIED.
Order No. 8733455 is AFFIRMED as issued. Empresas Mundo Real is ORDERED
TO PAY the Secretary of Labor the sum of $212.00 within 30 days of the date
of this order.[2]

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Terrence
Duncan, Office of the Solicitor, U.S. Department of Labor, MSHA, 201 Varick
St., Room 983, New York, NY 10014 (Email & Certified Mail)

Juan
Antonio Perez, HC05 Box 7230, Guaynabo, PR 00971 (Email & Certified Mail)

[1] Moreover, I
note that at the direction of Varela, Cajigas drove the crane from in front of
the mine office where the mine parks all its equipment to the construction
site. (Cajigas Depo. Tr. 20; Varela Depo. Tr. 16-17). Employees were exposed to
hazards when the crane was operated by Cajigas, both in the moving of the crane
to the construction site and the use of the crane at the construction site.

[2] 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