Ames Construction, Inc.

Plain-English summary

Ames Construction supervised deliveries of large pipes at a mine construction project, where a truck driver removed the load restraints before Ames employees returned with a forklift and was fatally injured when a pipe rolled from the trailer. The Commission held that Ames was a Mine Act operator because it performed construction at the mine and was strictly liable for the unsafe unloading violation because it supervised that process. Ames's lack of a contract with the driver's employer did not matter because the cited condition arose during an activity under Ames's responsibility. The Commission affirmed the violation of 30 C.F.R. § 56.9201 and the judge's result, including the S&S finding and the proposed $13,268 penalty. Commissioner Michael F. Duffy dissented, reasoning that the driver's unforeseeable conduct should not be attributed to Ames.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9201
• Outcome: The unsafe-unloading citation, S&S finding, and $13,268 penalty were affirmed.
• Key point: A mine contractor may be strictly liable for a violation committed during a process it supervises even when the person whose conduct created the hazard works for an unrelated company.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 25, 2011

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

AMES CONSTRUCTION, INC.

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Docket No. WEST 2009-693-M

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners

In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”), Judge Margaret Miller upheld a citation
charging Ames Construction, Inc., (“Ames”) with a violation of 30 C.F.R. § 56.9201. 32
FMSHRC 347 (Mar. 2010) (ALJ). Section 56.9201 provides that “[e]quipment and supplies
shall be loaded, transported, and unloaded in a manner which does not create a hazard to persons
from falling or shifting equipment or supplies.” The Commission granted Ames’s Petition for
Discretionary Review, which challenges the judge’s determination that Ames violated the safety
standard in section 56.9201. For the reasons that follow, we affirm the judge’s decision in result.

I.

Factual and Procedural Background

This proceeding concerns the events surrounding a delivery of pipes at the Kennecott
Tailings Facility near Magna, Utah, and a fatal accident which occurred in connection with the
delivery. Ames contracted with Kennecott to construct and raise a tailings dam, pipe, and
roadways at the Kennecott Tailings Facility. 32 FMSHRC at 347 (citing Stip. 4, Tr. 261-262).
As the construction at the facility progressed, it was necessary to extend a pipeline used to
transport waste product. Tr. 55-56. Consequently, Ames regularly received deliveries of pipes at
the property. Approximately 60 to 70 loads of pipe were delivered to the facility during 2008. Tr. 226-27.

The pipes were manufactured by WL Plastics and purchased by Kennecott. Gov’t Ex. 5
at 8; Tr. 65. At the WL Plastics factory, pipes were loaded onto the trailer of a delivery truck
bound for the Tailings Facility. Tr. 65. In this instance, the delivery truck was owned by Bob
Orton Trucking (“Orton”) and driven by an employee of Orton. 32 FMSHRC at 348. The driver,
William Kay, was 81 years old and had 55 years of experience as a truck driver. Id., Stip. 28.

On October 29, 2008, Kay arrived at the Tailings Facility with a trailer loaded with nine
pipes, each of which was about 50 feet in length and 3,000 pounds in weight. Id. (citing Tr. 65). After arriving at the facility, Kay stopped at the Ames office. Id. at 349 (citing Tr. 151). Ames employees check with each driver to determine if the driver holds a hazard card.
Tr. 55. On this particular morning, Kay displayed his Kennecott hazard card, which indicated
that he had received hazard training. 32 FMSHRC at 348 (citing Tr. 88, Gov’t Ex. 11).
However, the hazard training Kay had received did not involve the unloading of materials from a
truck. Id. (citing Tr. 104, 118).

According to the policy at the Tailings Facility, Ames’s employees would escort outside
drivers while they were on the property. Stip. 9. Greg Davis, a member of the Ames crew,
retrieved a truck to use while escorting Kay to the pipe unloading area. Tr. 204. While walking
to the truck, Davis observed the load of pipes and noticed that it lacked chocks, which are
normally included to prevent rolling. Tr. 204. Additionally, he observed that the dunnage was
smaller than the four-by-four blocks normally used.

Tr. 204.

Davis, along with two additional members of the Ames crew, James Hilton and Juan
Florez, escorted Kay to the unloading area. 32 FMSHRC at 349 (citing Tr. 151). The Ames
crew drove the separate truck during the approximately eight-mile long drive. Id. (citing Tr.
154). Upon reaching the designated unloading area, only Florez exited the Ames truck. Id.
(citing Tr. 160; Stip. 12, 13). Davis instructed the truck driver, Kay, to “stay right here.” Stip.

13. Davis and Hilton then left to retrieve a forklift located elsewhere on the facility. Stip. 12.
    Florez remained with Kay, but the two did not speak while they waited at the site. Stip. 14, 16.

Normally the Orton drivers do not unload the truck on their own, but do participate in the
unloading process by loosening the straps that secure the load with a long tool that they carry in
the truck. 32 FMSHRC at 349 (citing Tr. 90). The remainder of the process is performed by the
contractor who is in charge of the site. Id.

After the Ames truck left, Florez crossed the road and remained for several minutes
before returning to the unloading area. 32 FMSHRC at 349. On his return, Florez waited near
the passenger side of the truck for the crew to arrive with the forklift. Id. During their time
together at the unloading area, Florez observed Kay near his toolbox. Id. Florez’s attention was
on the road when he heard a loud crack. Id. The noise came from a pipe which had dislodged
and rolled off the trailer. Stip. 17. Kay had removed all of the straps from the load without any
supplemental support. Stip. 17. Kay received fatal crushing injuries from the pipe. Stip. 17. At the time of the accident, Davis and Hilton had not yet returned to the unloading area with the
forklift. Stip. 18.

At the conclusion of the accident investigation, MSHA issued Citation No. 6328009 to
Ames for an alleged violation of the safety standard in section 56.9201 and designated the
violation as “significant and substantial” (“S&S”).

Ames subsequently contested the citation as
well as the associated civil penalty, which was proposed to be $13,268.

On March 23, 2010, the judge issued a decision, after a hearing on the merits, in which she concluded that the pipes were not unloaded safely as required by section 56.9201, that
the violation was “S&S,” and that Ames was strictly liable for the violation.

32 FMSHRC at
351-54. She found that the unloading process began when the truck was parked at the unloading
area and a member of the Ames crew was present for the purpose of unloading. Id. at 351. The
judge also found that the truck driver was “transporting the pipes for the use of Ames, on
property that was under the control of Ames.” Id. at 350. The judge found “it [was] Ames’
responsibility to unload the pipes.” Id. at 349. Finally, she stated that once the unloading
process began, “Ames was responsible for doing it correctly.” Id. at 351. In concluding that
Ames was strictly liable for the violation, the judge erroneously believed that Orton was a
subcontractor of Ames and relied, in part, on the Commission’s decision in Mingo Logan Coal
Co., which states that “the Act’s scheme of liability provides that an operator, although faultless
itself, may be held liable for violative acts of its employees, agents and contractors.” 19
FMSHRC 246, 249 (Feb. 1997) (quoting Bulk Transp. Serv., Inc., 13 FMSHRC 1354, 1359-1360
(Sep. 1991)).

II.

Disposition

Ames contends that the judge erred factually in determining that Orton was its
subcontractor. A. Br. at 9-10. Ames further contends that its employees could not have
prevented the accident. A. Br. at 11-12, 15. Ames maintains that in the absence of a contractual relationship with Orton, it is not liable for the violation of section 56.9201. Instead,
it asserts that it was a third party “bystander,” and therefore the liability scheme applied by the
judge was “wholly misplaced.” A. Br. at 13-15. Additionally, Ames disputes that it was in a
supervisory position at the time the driver began to unstrap the load. A. Br. at 15-16; Reply Br.
at 8-9. Thus, Ames denies that it engaged in any activity which violated section 56.9201. A. Br.
at 15-17. Finally, Ames contends that the Secretary, in urging Ames’s liability for the acts of an
unrelated third party, is “unjustifiably expanding the potential for liability to an unconscionable
extent.” A. Br. at 17-19; Reply Br. at 3-8.

The Secretary concedes that the judge’s finding that Orton was a subcontractor of Ames
is not supported by the record. S. Br. at 8. However, the Secretary asserts that Ames is strictly
liable for the violation of the safety standard in section 56.9201 because it controlled the pipe
unloading area and supervised the unloading of the pipes. S. Br. at 8-10. She argues that an
operator is strictly liable for violations that take place under its control or supervision. S. Br. at
10-19.

At the outset, we recognize that the judge was incorrect in stating that Orton was a
subcontractor of Ames. However, in view of the judge’s findings regarding Ames’s supervision
of the unloading process, her error about Orton being Ames’s subcontractor does not control the
outcome of this appeal.

We conclude that the issue of Ames’s liability in this case is appropriately resolved by
referring to the plain language of the Mine Act and the undisputed facts in the record. Ames has
stipulated that during the relevant period of time it “was a contractor constructing a tailings dam
and raising the tailings dam, pipe, and roadways at the Kennecott Tailings Facility near Magna,
Utah.” Stip. 4. As such, Ames was an operator of the mine, since section 3(d) of the Mine Act
defines that term as “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.” 30 U.S.C. § 802(d). Ames’ concession that it was a contractor constructing a tailings
dam places it squarely within the statutory definition of “operator.”

Section 110(a) of the Mine Act provides that “[t]he operator of a coal or other mine in
which a violation occurs of a mandatory health or safety standard . . . shall be assessed a civil
penalty by the Secretary . . . .” 30 U.S.C. § 820(a). This provision has been held to impose
liability for violation of a standard against an operator without regard to fault. Allied Products
Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 1982); Sewell Coal Co. v. FMSHRC, 686 F.2d
1066, 1071 (4th Cir. 1982); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 1988),
aff’d on other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 8 FMSHRC 1632, 1634-36
(Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989).

Since a violation of a mandatory standard occurred at a mine at which Ames is an
operator, under the plain meaning of section 110(a), Ames could be found strictly liable for that
violation. Ames maintains, however, that the Mine Act’s liability scheme should not apply to a
situation like the one here, in which the Secretary seeks to hold independent contractor Ames
liable for a violation committed by a third party with which Ames has no contractual
relationship. A. Br. at 17-19.

Section 110(a) imposes strict liability for violations which occur at a mine. However, as
the D.C. Circuit has noted, strict liability “means liability without fault[;] [i]t does not mean
liability for things that occur outside one’s control or supervision.” Sec’y of Labor v. National
Cement Co. of Cal., Inc., 573 F.3d 788, 795 (D.C. Cir. 2009) (citation omitted). Here, because
Ames supervised a process, the unloading of pipes, it is responsible for the violation that
occurred. Ames’s emphasis on its lack of a contract with Orton trucking is, at bottom, an
argument that it lacked the level of control needed to justify imposition of strict liability for
violations committed by Orton drivers. Because, as discussed below, we conclude that Ames was
cited for an unsafe condition that occurred in connection with an activity for which it had
supervisory responsibility, we find the lack of a contract to be immaterial to our determination.

Indeed, this approach is consistent with the Commission’s decision in Joy Technologies,
Inc., 17 FMSHRC 1303 (Aug. 1995). In that case, Joy entered into a contract with the mine
operator for the sale of equipment. Although Joy made follow-up visits to the mine to
troubleshoot the equipment, it argued that it was not an independent contractor under the Mine
Act because there was no contract to perform those services. The Commission nevertheless
determined that Joy could be held liable for the Mine Act’s training requirements, noting “‘[o]ur
focus is on the actual relationships between the parties, and is not confined to the terms of their
contracts.’” 17 FMSHRC at 1306 (quoting Bulk Transp. Serv., 13 FMSHRC at 1358 n.2). This
principle was cited approvingly by the Tenth Circuit. Joy Techs., Inc., 99 F.3d 991, 995-96 (10th
Cir. 1996). Accordingly, in determining that liability is appropriately imposed against Ames, we
have considered its relationship with Orton’s drivers, particularly during the unloading process, a
process which Ames supervised and controlled. This focus is consistent with our case law, albeit
in a different context.

Ames was cited for a violation of 30 C.F.R. § 56.9201, which requires that “[e]quipment
and supplies shall be . . . unloaded in a manner which does not create a hazard to persons from
falling or shifting equipment or supplies.” The judge found that it was “Ames’ responsibility to
unload the pipes from the truck.” 32 FMSHRC at 349. Not only is this finding supported by
substantial evidence, it is not even seriously disputed by Ames. See Tr. 264-65 (testimony of
Robert Parker, Ames’s Industrial Division Manager, that unloading the pipes was Ames’s
responsibility under its contract with Kennecott). Indeed, Ames stipulated:

Orton drivers are instructed to follow the policies and procedures of the

recipient regarding safety and the unloading process. Orton drivers are

instructed to follow the instructions of the supervisor of the unloading

process.

Tr. 271.

Moreover, the record contains a Safety, Health, and Environmental Action Plan (SHEAP),
which is a site-specific project safety plan detailing the safety requirements imposed on Ames by
Kennecott. Tr. 240-41; Gov’t Ex. 8; Stip. 21. The SHEAP includes a section on the safe
unloading of materials using forklifts. Tr. 240-41; Gov’t Ex. 8, sec. 3.g., at 3. Under the section
entitled “Ames Construction Safety Management – Authority,” the SHEAP provides:
“Supervisors, foremen and safety supervisors are authorized to stop work that would place
employees, equipment or property in immediate danger, and to ensure that all unsafe conditions
are corrected.” Gov’t Ex. 8, at 5. Obviously, the ability to stop unsafe work implies supervisory
authority.

The operator’s own Job Safety Analysis (“JSA”) also supports the judge’s finding that
Ames was responsible for unloading the pipes. The JSA is a document used by Ames that
identifies the potential hazards of forklift operations. Gov’t Ex. 9. The JSA recommends that
forklift operators “make sure [the] load is secure before removing straps from truck or trailer.”
Gov’t Ex. 9; Stip. 19. At the time of the incident, Ames crew members were familiar with the
JSA. 32 FMSHRC at 349 (citing Tr. 140).    

However, the operator argues that Florez was without power or authority to prevent Kay
from proceeding with the unloading. A. Br. at 15-16. The record does not support this view.
Ames controlled the drivers’ access to the site and, upon admission, escorted them to the
unloading area. 32 FMSHRC at 349 (citing Tr. 151). Orton drivers were required to follow the
instructions of the supervisor of the unloading process. Tr. 271. Florez himself testified that it
was his responsibility to ensure that Kay stayed safe. Tr. 167. Moreover, the Ames
superintendent at the facility testified that on past occasions, he had prevented drivers from taking
actions he believed were dangerous. Tr. 229. At oral argument, Ames’s counsel acknowledged
that on previous occasions Ames employees had stopped truck drivers from loosening the straps.
Oral Arg. Tr. 18. In any event, whether Kay would have refused to obey instructions from
Ames’s agents is beside the point, because no attempt was made to prevent him from beginning
the unloading process, or to prevent him from encountering any other hazards. Tr. 169-74.

Ames disputes that the unloading of pipes had begun when Kay was killed, because the
operator had not intended it to commence as of the time when Kay began to loosen the straps.
This position is untenable as a matter of law and common sense. The judge found that unloading
had in fact begun at that point: “[O]nce [Ames] escorted Kay to the loading site and left an
employee with him . . ., the unloading process had begun and Ames was responsible for doing it
correctly.” 32 FMSHRC at 351. The judge further found that the unloading began with Kay
loosening a number of straps running the entire length of the flatbed, and that Florez should have
seen this and stopped Kay from proceeding. Id. (citing Tr. 114-15).

According to the judge, unloading began with the first steps necessary to the process. Not
only is her finding supported by substantial evidence, it would defy logic to hold otherwise.
Before Kay’s intervention, the pipes were on the truck. Afterward, at least one had departed the
truck as a result of human activity. This is “unloading” by any reasonable definition.

III.

Conclusion

In summary, Ames was an operator of the mine pursuant to the clear language of section
3(d) of the Mine Act, because it was a contractor performing services at the mine. As such, it is
liable under section 110(a) of the Mine Act, without regard to fault for the violation at issue, since
the unloading of the pipes from the trucks (which was the subject of the citation) was Ames’s
responsibility. Accordingly, we conclude that the judge’s decision that Ames violated 30 C.F.R.
§ 56.9201 should be affirmed in result.

Mary Lu Jordan, Chairman

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Commissioner Duffy, dissenting:

I would reverse the judge and vacate the citation.

As I see it, strict liability of mine operators under the Mine Act is derived from the
interrelationship of sections 104(a) and 110(a) of the statute. The former imposes liability on an
operator who “has violated” the Act, a mandatory standard, an order, or a rule promulgated under
the Act. 30 U.S.C. § 814(a). The latter imposes liability for a civil penalty sanction on an
operator of a mine “in which a violation occurs.” 30 U.S.C. § 820(a). Thus, an operator can be
held liable for violations it commits outright or through its agents, or it can be held liable if a
violation occurs anywhere within a location deemed to be a mine that is owned, controlled, or
supervised by that operator. The Commission has explicitly found section 110(a) to be the
ultimate source of operator liability:

The liability of an operator is governed by section 110(a), 30 U.S.C.
§ 820(a), which states: “The operator of a . . . mine in which a
violation occurs of a mandatory health or safety standard . . . shall
be assessed a civil penalty. . . .” (Emphasis added). The occurrence
of the violation is the predicate for the operator’s liability.

Asarco, Inc.–Northwestern Mining Dep’t, 8 FMSHRC 1632, 1635 (Nov. 1986), aff’d, 868 F.2d
1195 (10th Cir. 1989).

In the instant case, the mine site where the violation occurred included multiple employers,
among them independent contractor Ames. Rather than look to section 110(a), and determine
whether Ames was an “operator” of the mine for purposes of the violation of 30 C.F.R. § 56.9201,
the majority departs from Commission precedent and allocates liability not by reason of the area
of the mine where the violation occurred, but, rather, by reason of the “process” for which a given
“operator” is responsible. Indeed, the majority explicitly declines to reach the issue of whether
Ames could be held liable on the basis that it controlled the area where the violation of section
56.9201 occurred. Slip op. at 5 n.5.

While I appreciate that the majority is attempting to resolve the issue this case presents on
grounds as narrow as possible, I cannot join them. Breaking new ground in finding the source of
an operator’s liability, as the majority does, may result in unforeseen problems.

I instead conclude that if Ames is liable at all for the violative conduct of Mr. Kay, it
would be on the basis that Ames was in control of the area encompassing the Kennecott Tailings
Facility where the fatal accident took place. However, I further conclude that Ames should not be
held strictly liable for the violation committed by Mr. Kay because he was not an employee of
Ames and because he engaged in unforeseeable conduct that cannot be attributable to Ames.

In Western Fuels–Utah, Inc., 10 FMSHRC 256 (Mar. 1988), then Chairman Ford in his
dissent in that case made a compelling argument in favor of allowing an operator to assert an
affirmative defense against a citation if the operator could show that it was blameless and that the
violation was owing to the unforeseeable and idiosyncratic conduct of its employee. Id. at 263-72.
The Chairman’s position did not prevail among three of his colleagues (id. at 258-62), or on
appeal to the D.C. Circuit (Western Fuels–Utah, Inc. v. FMSHRC, 870 F.2d 711 (D.C. Cir.
1989)), but I firmly believe the principles upon which he based his dissent are fully applicable in
instances such as are presented in this case, where the violative conduct is carried out by a non-employee of the cited operator. It may well be that a principle adopted under the OSHA statute
should also be applicable here:

Fundamental fairness would require that one charged with and
penalized for violation be shown to have caused, or at least to have
knowingly acquiesced in, that violation. Under our legal system, to
date at least, no man is held accountable, or subject to fine, for the
totally independent act of another.

Brennan v. OSHRC, 511 F.2d 1139, 1145 (9th Cir. 1975).

Just because the Secretary may be authorized to take a particular action, doesn’t
necessarily mean that she should. This is just such an instance. I would therefore encourage
Ames to seek judicial review of whether the strict liability doctrine under the Mine Act should
apply to an operator when a non-employee of that operator engages in unforeseeable conduct that
violates the Act or the standards.

Michael F. Duffy, Commissioner

Distribution:

Mark N. Savit, Esq.

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

Matthew B. Finnigan, Esq.

Office of the Solicitor

U.S. Department of Labor

1999 Broadway, Suite 1600

Denver, CO 80202

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-2500