Secretary of Labor v. Park County Road & Bridge

Plain-English summary

Park County held a community cleanup event on county property near its temporarily idle Nine Pit, using a waste contractor, dumpsters, and a front-end loader. MSHA cited the county for failing to provide hazard training to five contractor employees and failing to provide the contractor with mine-specific hazard information. Park County sought summary decision, arguing that the event occurred outside the mining area, the workers encountered no mine hazards, and the waste company was not an independent contractor under the Mine Act. The Secretary disputed the location and exposure facts, pointing to the mine gate, nearby stockpiles, and loader operations. The Judge denied summary decision because factual disputes remained about the stockpiles' origin and distance, the loader's use, whether employees were at a defined mine site and exposed to mine hazards, and whether the contractor's contacts were more than minimal. The citations and penalties were not resolved.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.11(a) and 46.12(a)(2)
• Outcome: Park County's motion for summary decision was denied, leaving both training-related citations for further proceedings.
• Key point: Mine Act jurisdiction alone did not resolve the training claims; the Secretary still had to prove that the workers were at a mine site, exposed to specific mine hazards, and covered by the contractor rules.

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

303-844-3577 FAX
303-844-5268

July 14, 2016

SECRETARY
OF LABOR,             

MINE
SAFETY AND HEALTH

ADMINISTRATION,
(MSHA),     

Petitioner

v.

PARK
COUNTY ROAD & BRIDGE,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2016-237-M

A.C.
No. 05-04600-399463

Nine
Pit

ORDER DENYING MOTION
FOR SUMMARY DECISION

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 Park County Road & Bridge (“Park County”) 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”). Park County filed a motion for summary decision in which
it maintains that the two citations at issue in this case must be vacated.[1]
The Secretary filed an opposition to the motion to which Park County filed a
reply. For the reasons set forth below, the motion for summary decision is denied.

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 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, 477 U.S. 317, 327
(1986)). When the Commission reviews a summary decision under Rule 67, it looks
“‘at the record on summary judgment in the light most favorable to … the party
opposing the motion,’ and that ‘the inferences to be drawn from the underlying
facts contained in [the] materials [supporting the motion] must be viewed in
the light most favorable to the party opposing the motion.’” Hanson
Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v. Columbia
Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).

I. SUMMARY OF
ARGUMENT

A.               
 Park
County

Park
County contends that Citation Nos. 8932192 and 8932193 should be vacated. The citations
were issued to Park County because a “Community Clean-up Day” was being held on
county property on October 3, 2015. Park County argues that this Clean-up Day
was being held on a flat piece of ground located near, but not in, an idle
gravel pit at which no mining operations were being conducted and at which no
mining equipment was present. Park County engaged Mountain View Waste to
operate the Clean-up Day.

In the
motion, Park County presents what it labeled as “Undisputed Facts” in support
of its motion. Because the Secretary argues that these undisputed facts do not
include all pertinent information, I have labeled these facts as “Park County
Facts” in this order. These facts, with only minor edits, are as follows:

1.
Park County, Colorado, is a Colorado county organized and existing under Title
30 of the Colorado Revised Statutes. C.R.S. § 30-1-101.

2.
Park County is the owner and operator of the Nine Pit, Mine ID No. 0504600, a
gravel pit used only intermittently to produce road base for Park County roads.
(Affidavit of Thomas Eisenman attached as Exhibit 1).

3.
In the early autumn of 2015, Park County scheduled three “Community Clean-up
Day” events, on various dates and locations, at which residents of Park County
would be allowed

to
drop off waste material in dumpsters. The dumpsters would then be hauled away
and the waste material disposed of. Id.

4.
The October 3, 2015, location of the Community Clean-up Day was property near

the
Nine Pit but “off to [the] side of [the] main property.” (General Field Notes
prepared by MSHA Inspector Kathleen T. Gearity dated October 3, 2015 attached as
Exhibit 2, page 3). Community Clean-up events have been held at this location
several times before in previous years without incident since the property
adjacent to the Nine Pit is an ideal location for this activity. (Affidavit of
Thomas Eisenman).

5.
On October 2, 2015 at 3:14 p.m., MSHA received an anonymous telephone call “requesting
an inspector to go there [to the Community Clean-up] and shut this event down.”
(MSHA Escalation Report attached as Exhibit 3).

6.
Rather than call Park County to inquire about the Community Clean-up, MSHA
dispatched an inspector, Kathleen T. Gearity, to the event on October 3, 2015,
where Gearity made observations and took notes and photographs. (Exhibit 2).

7.
On October 3, 2015 "no portable plant or mining equipment [was]
visible" and "no mining equipment was on site." (Id. at
pages 1 and 3).

8.
On October 3, 2015, according to the records of MSHA the “Mine has a status of
temp[orary] idle.” (Id. at pages 1).

9.
At the conclusion of her inspection, Gearity noted: “Due to temp idle status no
mining equipment; and location off to side of main property, question of jurisdiction.
Will review w/ Field Office Supervisor prior to issuing citations.” (Id.
at page 3).

10.
No citation was issued by Gearity on October 3, 2015. Instead, she “[a]dvised [the
County to call] in next time to be certain they are in compliance.” (Id.
at page 5).

11.
On October 6, 2015, Gearity “[r]eviewed the situation w/ Shane Julien, Field

Office
Supervisor. Per district recommendation we will not issue citations due to
question of jurisdiction. Ultimately – negative findings.” (Id. at page
5).

12.
This conclusion was reiterated in MSHA's Miscellaneous Inspection Information report
in which it is stated: “Per Field Office Supervisor and District Staff there
were no issuances due to question of jurisdiction due to mine temp idle status and
no mining activity on site.” (Miscellaneous Inspection Information attached as
Exhibit 4, page 2).

13.
At some point subsequent to the events of October 2015, MSHA apparently issued
Citations 8932192 and 8932193. (Copies attached as Exhibit 5). However, the
citations were not served upon or provided to Park County until January 8, 2016,
when Shane P. Julien of MSHA sent copies to the Park County Transportation
Director attached to an email reading, in pertinent part: “Tammy, My apologies,
here are the missing citations they did not get sent out by AR as originally
thought. We intended to send them to Mr. Eisenman but did not.” (Email from
Shane

P.
Julien to Tammie Crawford dated January 6, 2016, with attachments, attached as
Exhibit 6).

14.
None of the reports prepared by MSHA personnel identify any mine hazard at the
site of the Community Clean-up. (See Exhibits 1, 2 and 3).

15.
The Community Clean-up event was not conducted on an area where mining
operations occur. (Exhibit 2; Affidavit of Thomas Eisenman).

16.
Mountain View Waste did not perform any services at the Nine Pit but, instead,
merely supplied roll off dumpsters on County-owned property adjacent to the
Nine Pit Mine Site for the Community Clean-up. (Affidavit of Thomas Eisenman).

17.
At no time on October 3, 2015 was any person exposed to mine hazards. (Affidavit
of Thomas Eisenman).

Citation
No. 8932192 charges a violation of section 46.11(a) and alleges, in part, that
five employees of Mountain View Waste were on mine property for a community
trash day and had not received site-specific hazard awareness training. 30
C.F.R. § 46.11(a). Citation No. 8932193 charges a violation of section
46.12(a)(2) and alleges, in part, that Mountain View Waste employees were on
mine property at Nine Pit for a community trash day and they were not given
site-specific hazard awareness training. 30 C.F.R. § 46.12(a)(2).

Based
on these facts, Park County argues that Citation No. 8932192 must be vacated. The
cited regulation provides that “site-specific hazard awareness training [must
be provided] before any person specified under this section is exposed to mine
hazards.” Persons specified under this regulation includes “any person who is
not a miner as defined by § 46.2 of this part but is present at a mine site.” 30
C.F.R. § 46.11(b). The term “mine site” is defined as “an area of the mine
where mining operations occur.” 30 C.F.R. § 46.2(f). The Secretary has defined
“mining operations” to mean “mine development, drilling, blasting, extraction,
milling, crushing, screening, or sizing of minerals at a mine; maintenance and
repair of mining equipment; and associated haulage of materials within the mine
from these activities.” 30 C.F.R. § 46.2(h). Park County maintains that it is
undisputed that there were “absolutely no mining operations in progress on
October 3, 2015, that there was no mining equipment on site, that the Nine Pit
was in ‘temporary idle status,’ and that the Community Clean-up event was conducted
not on the mine site, as that term is defined [in section 46.2(f)], but ‘off to
[the] side of [the] main property.’” (Motion at 7 quoting Resp. Ex. 2, p. 3). Under
the undisputed facts, no person was “exposed to mine hazards.” The Community
Clean-up was not being conducted in an area of the Nine Pit “where mining
operations occur.”

Based
on the same facts, Park County also contends that Citation No. 8932193 must be
vacated. The cited regulation provides that “[e]ach production-operator must
provide information to each independent contractor who employs a person at the
mine on site-specific mine hazards and the obligation of the contractor to
comply with our regulations, including the requirements of this part.” 30
C.F.R. § 46.12(a)(2). The citation states that Mountain View Waste, the firm
hired to deliver and remove dumpsters at the clean-up event, did not receive
information on site-specific hazards and was not advised by the County that it
must comply with MSHA regulations. Park County argues Mountain View Waste was
not an “independent contractor” as that term is defined by the Secretary
because it did not perform any services at the Nine Pit site but, instead “merely
supplied roll-off dumpsters on County-owned property adjacent to the Nine Pit
Mine Site for the Community Clean-up.” (Motion at 11; Resp. Ex. 1, Affidavit of
Thomas Eisenman). The Secretary has defined the term “independent contractor”
to mean “any person, partnership, [or] corporation . . . that contracts to
perform services at a mine under this part.” 30 C.F.R. § 46.2(e). Read in
context and applying the plain and ordinary meaning of the words used in this
definition, the phrase “perform services at a mine under this part” means that
the “entity must be performing mine related work.” (Motion at 12). Park County
contends that under any other construction of the definition the words “at a
mine” and “under this part” would have no meaning and would be superfluous. Id.
“Delivery and removal of roll off dumpsters for a non-mining related
Community Clean-up day is simply not the performance of ‘services at a mine
under this part.’” Id. Consequently, Mountain View Waste was not an
independent contractor as that term is defined by the Secretary. In addition
Mountain View Waste never employed anyone at a mine as it simply supplied
roll-off dumpsters. Finally, because no mining activities were taking place at
the Nine Pit, Park County was under no obligation to “provide information” to
Mountain View Waste “on specific mine hazards.”

B.                
 Secretary
of Labor

The
Secretary takes issue with many of the “undisputed” facts listed by Park
County, as discussed below. With respect to Park County Fact 4, whether the
Clean-up Day was held “off to [the] side of [the] main property,” it was still
on mine property. To get to the clean-up day, the “public drives into the mine
gate [and onto] mine property [and] past existing stockpiles.” (Sec’y
Opposition at 4, quoting Sec’y Ex. 6, p. 2). Being near stockpiles and behind
mine gates strongly indicate that Mountain View Waste was on mine property.

Park
County Fact 5 leaves out the concern of the anonymous caller that “[t]here will
be a front loader being operated and drivers driving trucks with no training.” (Id.
at 5, quoting Sec’y Ex. 4). Park County Fact 7 fails to mention that
Inspector Gearity found a front-end loader in operation at the site and the
equipment operator was not wearing a seatbelt. (Sec’y Opposition at 5, quoting Sec’y
Ex. 6 p. 2). The equipment operator would have known of his obligation to
always wear a seatbelt had he received the proper MSHA training.

Park
County Fact 14 states that MSHA failed to identify any mine hazards at the site
of the Clean-up Day. To the contrary, Citation No. 8932192 lists a number of
hazards including “stockpiles, the pit, and mine equipment such as the
screening plant and front-end loader.” In addition, no County or Mountain West
Waste employee at the site had received any hazard training.

Park
County Fact 15 incorrectly states that the Clean-up Day was not held on an area
where mining occurs. Although neither extraction nor milling were taking place
on October 3, mine records show that as recently as September 29 miners engaged
in nine hours of material screening at the Nine Pit. Park County Fact 16
incorrectly states that Mountain View Waste merely supplied roll-off dumpsters.
The facts show, however, that there were five Mountain View Waste employees at
the site and one of these employees was operating a front-end loader.

The
Secretary also disputes Park County’s legal arguments. With respect to Citation
No. 8932192, Park County relies exclusively on the inspector’s passing phrase
that the Clean-up Day was off to the side. When the facts are analyzed taking
into consideration the definition of a “coal or other mine” in section 3(h)(1) of
the Mine Act, it becomes clear that the Clean-up Day took place at a “mine.” 30
U.S.C. § 802(h)(1). As a consequence, the requirements of section 46 applied to
the Clean-up Day. With respect to Citation No. 8932193, the Secretary argues
that although “Mountain View Waste was not assisting in the removal of sand and
gravel from the mine site; [it was] nevertheless performing services on mine
property at the invitation of the mine operator, [Park County].” (Sec’y
Opposition at 8).

C.               
 Park
County’s Reply

In
response to the Secretary’s opposition, Park County makes the following
argument. First, it contends that the Secretary’s opposition rests on mere
allegations and denials rather than specific facts supported by affidavits or
other verified documents as required by 29 C.F.R. § 2700.67(d). Second, the
Secretary did not address most of the Park County Facts set forth in the motion
for summary decision. Third, Park County responded to specific statements made
by the Secretary in opposition to the Park County Facts. With respect to Park
County Fact 7, Park County notes that it did not mention the front-end loader
because it “had absolutely nothing to do with the mine but was owned, operated,
and used by Mountain View Waste to move dumpsters and pick up trash.” (Park
County Reply at 6). The presence of the front-end loader is totally irrelevant
to the issues in this case because it was not mining equipment. In addition,
the “facts” set forth in the two subject citations are mere allegations that
were prepared at a later date and should not be considered in response to a
motion for summary decision because the allegations are not supported by an
affidavit. With respect to Park County Fact 15, it is immaterial that mining
occurred at the Nine Pit in the past. The key fact that the Secretary cannot
dispute is that no mining, milling, or stockpiling has ever occurred at the
site of the Clean-up Day. Finally, Park County maintains that it is undisputed
that no employees of Mountain View Waste entered the pit or traveled to other
areas on the property other than the site of the clean-up activity where no
mining activity was taking place. (Park County Reply at 8). It cannot be
disputed that employees of Mountain View Waste “never engaged in mining
operations and were never exposed to any mine hazards, as is recited in the
Eisenman Affidavit.” Id. at 9.

II. DISCUSSION
AND ANALYSIS

The
only issue before me at the present time is whether summary decision can be
granted.  I reject Park County’s argument that the Secretary failed to comply
with Commission Procedural Rule 67(d). Although the Secretary did not include a
declaration or affidavit in his opposition, he did provide documents to support
his position that there are genuine issues of material fact that must be
resolved. I may also rely on the conditions described in the two citations as
specific facts that the Secretary is prepared to establish at an evidentiary
hearing. (Exs. 1-7).

I
find that there are a few genuine issues of material fact that need to be
resolved before I can rule on Park County’s motion, as follows:

1. The
photographs attached to Park County’s motion show a number of stockpiles of
aggregate and other material. It is not clear how close those stockpiles were
to the dumpsters and to the activities of the Mountain View Waste employees. In
his affidavit, Thomas Eisenman stated that he “personally confirmed with
Mountain View Waste that no employees entered the pit area nor were any
employees of Mountain View Waste exposed to any mine hazards since no mining
operations were occurring on October 3, 2015 and the Clean-up Day activities
were not at the mine site.” (Affidavit ¶ 7). There was no evidence that the pit
was near the location of the Clean-up Day or that the any “structures,
facilities, equipment, machines, [or] tools . . . used in, or to be used in, or
resulting from, the work of extracting . . . minerals from their natural
deposits . . . or used in, or to be used in, the milling of such minerals” were
anywhere near the Clean-up Day location. 30 U.S.C. § 801(h)(1). Consequently, only
the stockpiles were potentially close enough to the Clean-up Day location to
pose a potential mine hazard. I need to know whether these material stockpiles
were produced as a result of mining or screening activities at the Nine Pit. If
so, I need evidence of the minimum distance between these stockpiles and the
Clean-up Day activities on October 3, 2015. If the exact distances are not
known, a reasonable estimate would be sufficient. If the Secretary believes
that these stockpiles were close enough to the area where Mountain View Waste
employees were working, I need evidence as to how the stockpiles exposed these
employees to mine hazards.

2. Park
County stated that Mountain View Waste “merely supplied roll off dumpsters on
County-owned property adjacent to the Nine Pit Mine Site for Community Clean-up.”
(Eisenman Affidavit ¶ 7). Yet, five Mountain View Waste employees apparently were
present at the Clean-up Day and a front-end loader was used during the event. In
its reply to the Secretary’s opposition to the motion, Park County stated that the
front-end loader “was owned, operated and used by Mountain View Waste to move
dumpsters and pick up trash.” (Park County Reply at 6). This statement
contradicts the affidavit of Mr. Eisenman. I need more evidence as to what the
front-end loader was used for and how closely it operated to the stockpiles
shown in the photographs.

I do
not believe that an evidentiary hearing will be necessary to resolve these
evidentiary issues. If the parties are unable to settle the case, time will be
allowed for them to supplement their previous filings based on a schedule
developed during a conference call with me.

Although
I am denying the motion for summary decision because there remain genuine
issues of material fact, I am offering some thoughts on the merits of the case.
With respect to Citation No. 8932192, the hazard training requirement in
section 46.11(b) only arises if specified persons are “exposed to mine hazards.”
Those specified persons are individuals who are not miners but who are present
at a “mine site.” Section 46.2(f). A “mine site” does not encompass the entire
mine but only those parts of the mine in which “mining operations occur.” Id.
“Mining operations” include “mine development, drilling, blasting, extraction,
milling, crushing, screening, or sizing of minerals at a mine; maintenance and
repair of mining equipment; and associated haulage of materials within the mine
from these activities.” Section 46.2(h). If the Secretary is unable to
establish that the five Mountain View Waste employees were present at a “mine
site,” as defined by the Secretary, and were “exposed to mine hazards,” then I
will vacate the citation. Establishing that these individuals were present at a
“coal or other mine,” as that term is defined in the Mine Act is insufficient
to establish a violation of section 46.11(a) in this instance. In addition, the
mere fact that Mountain View Waste brought the dumpsters through the mine gate
would be insufficient

With
respect to Citation No. 8932193, a key issue will be whether Mountain View
Waste was an independent contractor as that term is defined in section 46.2(e).
Generally, any contractor performing services at a mine is considered to fit
within the definition of independent contractor in the Mine Act, unless “an
entity's contacts with a mine would be so attenuated as to remove it from the
jurisdiction of MHSA.” Northern Illinois Steel Supply Co. v. Sec’y of Labor,
294 F.3d 844, 848 (7th Cir. 2002). There comes “a point at which an
independent contractor's contact with a mine is so infrequent or de minimis
that it would be difficult to conclude that services were being performed under
the Mine Act.” Id; See also Otis Elevator Co. v. Sec’y of Labor,
921 F.2d 1285, 1290 n. 3 (D.C. Cir. 1990). If I find that the activities of
Mountain View Waste were de minimis, I will hold that it was not an
independent contractor of Park County and I will vacate the citation. If I find
that Park County was an independent contractor, the Secretary would be required
to establish that Mountain View Waste’s employees were exposed to specific mine
hazards for which hazard awareness training would be required.

I
strongly encourage the parties to settle this case taking into consideration
this order. If you are unable to settle the case, please advise me by no later
than August 9, 2016, so that I may schedule a conference call to discuss
further proceedings.

III. ORDER

For
the reasons set forth above, the motion for summary decision filed by Park
County is DENIED. I find that there are genuine issues of material fact that
remain in dispute.

/s/ Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Michelle A.
Horn, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Blvd., Suite 216, Denver, CO 80204-3518

[email protected]

Herbert C.
Phillips, Esq., PO Box 1046, Fairplay, CO 80440

[email protected]

RWM

[1]
In its
answer to the penalty petition and in its motion for summary decision, Park
County stated that “Park County Road & Bridge” is not a proper party in
this case and that it is not waiving its objection to this proceeding by filing
the motion. In its answer, however, it admitted that the Nine Pit is operated
by Park County, Colorado. I have not addressed this issue in this order as the
Secretary has not responded to this claim.