Well Tech Incorporated

Plain-English summary

Well Tech Incorporated serviced methane-removal wells at an underground coal mine in Virginia. Judge William Fauver held that Well Tech was an operator under the Mine Act because its work was essential to extracting coal, even though it was an independent contractor. The judge affirmed three citations for unguarded drill-rig parts and a missing backup alarm, finding each significant and substantial. The total civil penalty was $117.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.400(a) and 77.410(a)(1)
• Outcome: Three citations were affirmed with total civil penalties of $117.
• Key point: An independent contractor performing essential mine services can be an operator subject to Mine Act safety standards.

Full text (FMSHRC public release)

CCASE:
MSHA V. WELL TECH
DDATE:
19921117
TTEXT:

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SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 92-54
Petitioner, : A.C. No. 44-01520-03501 JIC
:
v. : Virginia Pocahontas #3
:
WELL TECH INCORPORATED, :
Respondent. :

                          DECISION

Appearances: Javier I. Romanach, Esq., Arlington,
VA, for Petitioner;
George R. Carlton, Jr., Esq.,
Dallas, Tx, for Respondent.

Before: Judge Fauver

 The Secretary seeks civil penalties for three alleged

violations of safety standards under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801 et seq.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below:

                    FINDINGS OF FACT

 1.   On August 7, 1991, Federal Mine Inspector Leslie Slowey

inspected gas well site #267 of Island Creek Coal Company's
Virginia Pocahontas #3 underground coal mine. He inspected the
Cooper Drill rig operated by Well Tech Incorporated. Well Tech
Incorporated, an independent contractor, had a contract with the
mine operator on a call-up basis to service wells used to extract
methane from the mine. This process involved withdrawing suction
rods, lifting the pump out of the well and servicing or repairing
the pump to correct the basis for the call-up by the operator.
Well Tech's services were essential to the mine's system of
removing methane from the mine. Methane removal was essential to
the extraction of coal.

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2. Inspector Slowey inspected the drill rig for safety and
cited three violations. First, he found that the fan inlets and
drive belts for the motor of the drill rig were not properly
guarded to keep a person from coming in contact with exposed moving
parts, in violation of 30 C.F.R. 77.400(a), for which he issued
Citation No. 3778953. He determined that this violation was
"significant and substantial."

 Second, he found that the drive shaft coupling was not guarded

to prevent a person from coming in contact with moving machinery
parts, in violation of 30 C.F.R. 77.400(a), for which he issued
Citation No. 3778954. He determined this violation was
"significant and substantial."

 Third, he found that the Cooper Drill rig did not have an

operable back-up alarm, in violation of 30 C.F.R. 77.410, for
which he issued Citation No. 3778955. He determined this violation
was "significant and substantial."

            DISCUSSION WITH FURTHER FINDINGS

  A threshold issue is whether Respondent is an "operator"

within the meaning of the Act. Section 3(d) of the Act provides
that:

      "operator" means any owner, lessee, or other
      person who operates, controls, or supervises,
      a coal or other mine or any independent
      contractor performing services or construction
      at such mine.

 Section 3(d) was added by the 1977 Amendments to the Mine Act

to expand the definition of "operator" to include "any independent
contractor performing services or construction" at a mine. In Otis
Elevator Company v. Secretary of Labor and FMSHRC, 921 F.2d 1285
(D.C. Cir. 1990), the Court held that in 3(d) the "phrase `any
independent contractor performing services ... at [a] mine' means
just that" and that the Court "need not confront ... whether there
is any 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 since [Otis] conceded
that it was performing limited but necessary services at the mine"
(921 F.2d at 1290 n. 3, emphasis added). Otis had a contract to
service the shaft elevators at the mine.

 In Lang Brothers, Inc., 14 FMSHRC 413 (1991), Lang Brothers

had an annual contract to clean and plug gas well sites for
Consolidation Coal Company, "to ensure that natural gas does not
seep through the well into a mining area and create a safety
hazard." 14 FMSHRC at 414. In holding that Lang Brothers was an
"operator," the Commission stated:

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Lang's work at the well sites ... was integrally related
to Consol's extraction of Coal. Cf. Carolina Starlite,
734 F.2d at 1551. The sole purpose of Lang's cleaning
and plugging contract with Consol was to facilitate
Consol's extraction of underground coal. 14 FMSHRC at
418.

The Commission did not adopt the restrictive interpretation of Old
Dominion Power Company v. Secretary of Labor and FMSHRC, 772 F.2d
92(4th Cir. 1985) (implying that an independent contractor must
have a "continuing presence at the mine" to be held to be an
"operator" under the Act). Rather, it held that the de minimis
standard may be measured by the significance of the contractor's
presence at the mine as well as the duration or frequency of its
presence. The Commission noted that even though Lang's actual
presence at the mine to clean and plug wells was for a short
period, its activity was an integral part of Consol's extraction
process.

 In Bulk Transportation Services, Inc., 13 FMSHRC 1354 (1991),

the contractor had a contract with a coal mine operator to
transport coal from the mine to a generating station 40 miles away.
The Commission noted that Bulk had a substantial presence at the
mine -- "[T]here is a constant flow of truck drivers in and out ...
four to five days a week" 13 FMSHRC at 1359 -- but it focused on
the significance of Bulk's activities to the extraction process in
determining that Bulk was an operator subject to the Mine Act.
"Given the undisputed fact that Bulk was Beth Energy's exclusive
coal hauler between Mine No. 33 and the generating station, and
given the quantities of coal hauled by Bulk, we agree with the
judge that Bulk's services in hauling coal were essential and
closely related to the extraction process." 13 FMSHRC at 1359.

 Similarly in this case, Well Tech's work on gas well pumps

used to remove methane from Island Creek's mine was essential to
the extraction of coal. As Inspector Slowey testified, "This
mine's ventilation plan requires that the methane be taken out of
the mine by vertical drilling. In order to keep the mine going
they have to reduce the methane down to a certain percent or the
miner will not operate down there." Tr. 42.

 Well Tech performed such work at the Virginia Pocanhontas #3

Mine for 578 hours in 1991, the year of the citations. This is
substantially more time than Otis mechanics spent at the mine in
Otis Elevator Co., supra. There the Court stated that it need not
address "whether there is any 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'" since Otis was "performing limited but necessary
services" at the mine. 921 F.2d at 1290 n.3. Well Tech was
similarly performing "limited but necessary services" at Virginia
Pocahontas #3 mine, and was therefore an "operator" within the

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meaning of the Act. (Footnote 1)

 In considering the evidence as to the three citations, I find

that the inspector's testimony was reasonable and persuasive.
Respondent did not present any evidence in rebuttal of his
testimony as to the facts concerning the alleged violations.

                  Citation No. 3778953

 Inspector Slowey cited a violation of 30 C.F.R.   77.400(a),

alleging that the fan inlets and drive belts for the motor of the
Cooper Drill rig were not guarded properly to prevent a person from
coming in contact with these moving machinery parts.

 Section 77.400(a) states, among other things, that "fan

inlets; and similar exposed moving machine parts which may be
contacted by persons, and which may cause injury to persons shall
be guarded."

 The Commission has held that this standard "imports the

concepts of reasonable contact stemming from inadvertent stumbling
or falling, momentary inattention, or ordinary human carelessness."
Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2096 (1984).

 Although the fan inlets were toward the front of the cab,

opposite the end where the employees usually worked, the inspector
testified that there was still a hazard because the employees might
come in contact with the moving parts during maintenance or repair
work. Tr. 15.

 The Commission has held that a violation may be classified as

"significant and substantial" if there is a reasonable likelihood
that the hazard contributed to will result in an injury of a
reasonably serious nature. Texasgulf, 10 FMSHRC 498, 500 (1988).
Considering that the machinery guard standard is intended to
protect employees from coming in contact with moving machinery
parts because of "inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness" (see Thompson Brothers

1 The Secretary of Labor enforces both the Mine Act and the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et
seq., and has reasonable discretion in determining which of her two
enforcement agencies, OSHA or MSHA, should exercise jurisdiction
over a given facility or activity. The Secretary is entitled to
deference in exercising such discretion. See, e.g., Brock v.
Cathedral Bluff Shale Oil Co., 796 F.2d 533, 537 (D.C. Cir. 1986);
and Donovan v. Carolina Starlite Co., 734 F.2d 1547 1522 & n.9
(D.C. Cir 1984). See also Southern Railway Company v. Occupational
Health Review Commission, 539 F.2d 335 (1976). I find that the
Secretary's exercise of discretion to assert Mine Act jurisdiction
over Well Tech's operations is reasonable and enforceable.

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Coal Company, above), I find that the evidence sustains the
inspector's finding that the violation presented a reasonable
likelihood of resulting in substantial injury. It is not required
that the Secretary prove that injury was more probable than not,
but only that there was a "reasonable likelihood" of injury. In
practical terms, this requires only a sustantial possibility of
injury. See, e.g., judges' decisions in Mountain Coal Co., 14
FMSHRC 1572, 1582-1583 (1992), and Consolidation Coal Co.,
14 FMSHRC 748-752 (1991).

                    Citation No. 3778954

 Inspector Slowey cited a violation of 30 C.F.R.   77.400

(a) because the drive shaft coupling for the motor to the rig was
unguarded.

 He testified that there was a reasonable likelihood that an

employee would come in contact with pinch points of the drive shaft
and lose a hand or an arm. Tr. 17.

 I find that the evidence sustains this charge and the

inspector's finding that the violation was "significant and
substantial."

                    Citation No. 3778955

 Inspector Slowey cited a violation of 30 C.F.R.   77.410(a)(1)

because the drill rig did not have an operable back-up alarm. The
standard provides that mobile equipment including trucks (except
pickup trucks with an unobstructed rear view) "shall be equipped
with a warning device that gives an audible alarm when the
equipment is put in reverse."

 Inspector Slowey testified that the Cooper Drill rig is in

effect a truck mounted derrick. Tr. 29. The drill rig was
stationary at the time he was there, and he asked the drill rig
operator to put the drill rig in reverse to check the back up horn.
He observed that the rig did not have a back up horn. Tr. 32,42.

 I find that the evidence sustains this charge and the

inspector's finding that the violation was "significant and
substantial."

 Considering the criteria for assessing civil penalties under

110(i) of the Act, I find that the following penalties ar
appropriate for the violations found herein:

      Citation                        Civil Penalty

      No. 3778953                          $39
      No. 3778954                          $39
      No. 3778955                          $39

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CONCLUSIONS OF LAW

    1.   The judge has jurisdiction in this proceeding.

 2.   Respondent was an "operator" of the subject mine within

the meaning of the Act.

 3.   Respondent violated the safety standards as cited in

Citation Nos. 3778953, 3778954, and 3778955.

                             ORDER

    WHEREFORE IT IS ORDERED that:

    1.   Citation Nos. 3778953, 3778954, and 3778955 are AFFIRMED.

 2.   Respondent shall pay the above civil penalties of $117

within 30 days of the date of this Decision.

                                     William Fauver
                                     Administrative Law Judge

Distribution:

Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, Virginia
22203 (Certified Mail)

George R. Carlton, Jr., Esq., Godwin, Carlton & Maxwell, P.C., 3300
NCNB Plaza, 901 Main Street, Dallas, Texas 75202-3714 (Certified
Mail)

/fcca