FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue. N.W., Suite 520N
Washington, D.C. 20004
(202) 434-9900/ Tel (202) 434-9949/Fax
February 5, 2013
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner v. CONSOLIDATION COAL COMPANY, Respondent |
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CIVIL PENALTY PROCEEDINGS Docket No. WEVA 2010-176 A.C. No.46-01438-200063 Docket No. WEVA 2010-631 A.C. No. 46-01438-209558 Docket No. WEVA 2010-940 AC. No. 46-04138-216359 Docket No. WEVA 2010-1078 A.C. No. 46-01438-219233 Ireland River Loading Facility |
SUMMARY DECISION
Before: Judge Koutras
STATEMENT OF THE PROCEEDINGS
The captioned civil penalty proceedings pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802 et. seq. (2000), concern four (4) Section 104(a) citations served on the Respondent on September 1, and November 5, 2009, following a fatal accident that occurred on December 29, 2008.
The Respondent has filed a Motion for Summary Decision challenging the Secretary's enforcement jurisdiction at the location where the fatality occurred. The dispute concerns three distinct geographic mine property and non-mine property areas described by the Respondent as (1) the Ireland River Loading Facility (IRLF); (2) the Ireland Dock; and (3) the river portion of the dock. The Respondent does not dispute the Secretary's enforcement jurisdiction over its IRLF operations. The Respondent's jurisdictional dispute is with the Secretary's enforcement claims over the dock and the river portion of the dock.
The Secretary filed a brief in support of Mine Act coverage of the Respondent's IRLF, including the Ireland dock, the river portion of the dock, including the empty barges moored at the dock in preparation for being loaded with coal, and takes the position that all activities taking place at these locations are an integral part of the mining cycle and constitute a mine. The Secretary concludes that her determination that the facility is a mine subject to her jurisdiction is reasonable and warrants deference.
The Respondent has filed a response to the Secretary's brief and the Secretary has filed a reply brief, and the matter has been submitted for summary decision by agreement and joint stipulation of facts as discussed in the course of this decision.
STIPULATED FACTS
The McElroy Coal Company
The mine produces bituminous coal that is sent to the McElroy preparation plant for processing to customer specifications by cleaning, breaking, crushing, sizing, washing, drying, mixing, and blending. McElroy Coal Co. and the Respondent are wholly-owned subsidiaries of Consol Energy, Inc., and are separate legal entities with separate MSHA Mine I.D. numbers.
The Ireland River Loading Facility (IRLF)
The Respondent's facility stockpiles, loads, and on rare-occasions blends quantities of completely processed coal received from the preparation plant located 1.5 miles away by a continuous conveyor belt. The processed coal has been cleaned, sized, and crushed at the plant The facility operates pursuant to a state of West Virginia mine permit, is bonded, and the land is owned by the Respondent. The IRLF has a separate MSHA I.D. number.
The IRLF facility includes a series of coal beltlines which carry the processed coal from the McElroy Plant to a coal transfer building where it is transferred from one conveyor belt to another. The facility also includes a surge stockpile and silo, a pump house, office, MCC building, and laboratory.
At the time the citations were issued, coal was mixed or blended, layer-loaded, and stored at the IRLF. Coal is not cleaned, sized, dried, or crushed at the IRLF, except for crushing of samples of coal for the purpose of laboratory analysis. Decisions regarding the mixing or blending and layering and storing of the coal at the IRLF are made by McElroy management. The shift supervisors employed by the prep plant are responsible for the transfer of coal onto barges at the Ireland Dock pursuant to the instruction of Consol Energy's shipping department.
The processed coal from both the stockpile and silo is transferred on a conveyor belt to the final load-out belt that is controlled by the load-out operator who controls the flow and speeds of the silo and stockpile feeder belts. The processed coal is loaded onto a barge by an elevated belt conveyor that drops it directly into the barge.
The processed coal received by the IRLF from the McElroy plant is analyzed to ensure customer specifications. A few times a month, processed coal arriving from the plant is, for various reasons, diverted to the stockpile, where, at times, it is subsequently blended with other processed coal of a different quality at IRLF by controlling the flow of coal onto belts to be loaded into specific barges. The blending of stockpiled coal with a coal of a different quality is done to ensure customer specifications are met. Coal from the "old and new" preparation plants are sometimes mixed. The IRLF blending and mixing of coal was taking place in the 2008 timeframe.
The chief health and safety officer of McElroy Coal Co. is responsible for safety and safety training at the IRLF. At the time of the accident, IRLF employed 19 hourly employees and the hiring, payroll, and personnel functions at IRLF were handled by McElroy Coal Co.
The General Plant Foreman of the McElroy plant was also responsible for IRLF, including the loading of processed coal, the scheduling of personnel, inspection of conveyors, equipment and barges, as necessary, and the supervision of the shift supervisors who provide first level supervision at IRLF.
Ireland Dock
The Dock is an un-bonded river bank area below the high water line at the IRLF. It includes a walkway to a fixed barge, the fixed barge, and the moving barges onto which the processed coal is loaded. The Dock was in operation on the day of the accident pursuant to a permit issued by the U.S. Army Corps of Engineers, but it was neither bonded nor permitted by the State of West Virginia as a coal mine.
Tow boats at the IRLF dock are registered with the Coast Guard, and the two tow boats at the dock are owned by the Respondent and operate to move and position barges at the dock. The dock consists of a control room for periodic communications with the prep plant, a loading dock, a walkway to the dock, a storage building, a belt stand, several mooring cells, and electrical equipment.
The dock is not a surface coal mine, or the surface work area of an underground coal mine. It falls under the jurisdiction of OSHA, MSHA, or the Coast Guard. Absent the assertion of jurisdiction of MSHA or the Coast Guard, the dock falls under OSHA jurisdiction.
McElroy prep plant shift supervisors' duties required them to inspect the beltlines and to walk on the barges several times a week in order to inspect the cargo box of the barges for any foreign material or water. The plant provides directions to the loader operator to control the flow of coal to achieve certain coal specifications for individual customers, and the loader operator controls the belts at IRLF and directs the flow of coal from the surge silo or the stockpile to be loaded into specific barges in order to meet customer specifications.
The loader operator receives information on the customer specifications of coal to be loaded into each barge via communications from the prep plant as well as from Consol Energy. Both the prep plant operator and the loader operator monitor the coal analysis to ensure that the coal being loaded on a barge meets customer specifications that are provided to the loader operator via computer screens in the loader operator compartment.
Up to approximately twice per year, the Ireland dock partially fills a barge with coal of one quality, and then tops the barge off with coal of a different quality. This occurs when analysis of the coal shows the specifications to be incorrect for a specific customer. Rarely, coal from Shoemaker Mine, another Consol Energy Mine, was transported to the Ireland dock in barges to be topped off with coal from the McElroy Mine Prep Plant because the quality of Shoemaker coal was too poor to meet customer specifications.
Beginning in 2011, coal from the Harrison Mine, which had undergone processing, was brought to IRLF because the McElroy Coal had hit a high sulphur area, affecting coal quality. The coal from the Harrison Mine, which had undergone processing, was stockpiled at IRLF and then mixed with McElroy Mine coal at IRLF at the direction of the Prep Plant Foreman to meet customer specifications.
River Portion of the Ireland Dock
The Ohio River portion of the dock consists of moveable barges in the river that are brought in loaded with coal and shipped down river. Coal is loaded onto the barges from an overhanging conveyer that comes from the IRLF, hangs over the dock, and drops the coal into the barges. The duties of the "deckhands" assigned to the dock include positioning and securing empty barges and inspecting and pumping excess water from the barges.
The barges are registered with the Coast Guard and assigned a number. MSHA does not register the barges that are owned by various shippers. After the loaded barges leave the river portion of the dock they deliver the coal to customers by tug boats registered by the Coast Guard and they are not owned by the Respondent.
MSHA has no jurisdiction over the coal that is unloaded from the barges that are loaded at IRLF. No breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, layer loading, or loading of coal takes place at the dock river portion location.
At the time of the accident, the dock river portion was operating pursuant to a permit issued by the U.S. Army Corps of Engineers, and it is not a surface coal mine, or the surface work area of an underground coal mine.
The Fatality and Investigation
On December 29, 2008, Jeff Seckmen, the preparation plant general foreman, sent plant foreman Mark McIntyre to check the moveable barges for excess water in the barges due to heavy rain and recent customer complaints.
Mr. McIntyre was last seen on one of the empty moveable barges in line to be located on the river portion of the Ireland Dock between 9:25 and 9:30 p.m. The next time someone looked for him he could not be found, a search commenced and his body was located at 2:35 a.m. the same day in the Ohio River under a partially loaded barge. The assumption from the accident report is that he was standing on a moveable barge when he fell off into the Ohio River and drowned. When he was last seen, he was monitoring the amount of water in barges on the river portion of the dock. These empty barges were eventually to be loaded with coal. The moveable barge on which he was last seen was tied off at the timber head of the adjacent moveable barge, as was the normal practice.
On December 30, 2008, MSHA began an inspection of IRLF, the dock, and the river portion of the dock, as a result of the drowning of Mr. McIntyre. The Coast Guard also commenced an investigation and concluded that it did not have jurisdiction over the facility.
Following the completion of the investigation, MSHA served the Respondent with citations for alleged violations at the IRLF pursuant to Part 77, Mandatory Safety Standards for surface coal mines, for (1) failure to contact MSHA about the fatality; (2) failure to adequately train the accident victim; and (3) inadequate guarding of mechanical machine parts at the loading dock. The loading of coal on barges during the on-going investigation was cited as a violation of Section 103(k) of the Mine Act.
Copies of the MSHA citation forms reflect that the McElroy Mine, the McElroy preparation plant, and the Respondent's IRLF all have separate MSHA mine identification numbers 46-01437, 014371, and 46-01438. The River Dock, the Ireland Dock and river portion of the dock do not.
On July 30, 2000, another fatal accident occurred at the river portion of the dock. A deck hand (William Anderson) was on a moveable barge preparing to run a "crab line" used to pull the moveable barges into position for loading out to another moveable barge. He was walking on one of the barges that was tied off to the other barge and was fatally struck by lightning and fell forward into the barge.
The fatality was investigated by the Coast Guard, who assumed jurisdiction of the fatality. MSHA's District 3 manager, in an email dated July 31, 2000, stated that "Based upon the Coast Guard's investigation, the decision is to treat it as one of their cases. We will not count it therefore, non-chargeable". The law governing MSHA's jurisdiction over the IRLF, The Dock and/or the river portion of the dock, and the work performed at those locations has not changed in any significant manner since 2000.
Prior MSHA Inspections of IRLF
Prior to 2008, MSHA issued citations to the Respondent following inspections of the IRLF. Since 2000, MSHA inspectors inspected the IRLF on a bi-annual basis, including the loading dock, barge load-out, conveyor belts, draw-off tunnels, the sample building, the coal storage areas, the silo area, the pump house, the MCC Building, the bathhouse, the lab area, the office, storage areas, fire fighting equipment, haul roads and berms, equipment, potable water, sanitary facilities, communications, and SCSRs. At least eleven (11) different inspectors inspected the IRLF areas where employees work and travel, and inspectors have conducted safety talks with the employees, and have conducted noise and respirable dust sampling of the employees.
An MSHA review of its records back to the year 2000 found no record of any MSHA citations or orders issued to the Respondent for hazards at the IRLF river portion of the dock.
There is at least one coal load-out facility in Marietta, Ohio, over which MSHA does not exercise jurisdiction. OSHA and/or the U.S. Coast Guard exercise jurisdiction over that facility.
THE ISSUES
In support of MSHA's Mine Act jurisdiction, the Secretary frames and defines the critical issue as a contest over the Respondent's "Loading Facility", specifically "the dock area and barges tethered to the dock at the Loading Facility". In support of her case the Secretary argues that the definition of a "Mine" pursuant to Section 802(h) of the Mine Act is expansive and includes all of the structures, facilities, equipment, machines, tools, or other property used or to be used in the work of preparing coal. 30 U.S.C. § 803(h)(1)
The Secretary maintains that the loading, storing and mixing of coal performed at the loading facility is the type of coal preparation work which meets the definition of a "mine" as defined by the Mine Act. The Secretary concludes that the dock area and barges tethered to the dock are integral to the process of coal preparation performed at the loading facility, and that the entire loading facility, including the dock area and barges tethered to the dock, meets the definition of a "mine" as defined in Section 802(h) of the Act, and that MSHA has jurisdiction over the facility. Additionally, the Secretary concludes that the loading facility is a continuation of, and fully integrated with, the McElroy Coal Mine and prep plant and for that reason is also covered by the Mine Act due to its vital role in the preparation of coal for delivery to the ultimate consumer.
The Respondent does not challenge MSHA's enforcement jurisdiction over its IRLF facility located on mine-permitted real property that it owns, and clearly states that its challenge is limited to the two separate and distinct geographic areas not on mine property, namely, the loading dock, and the river portion of the dock. The Respondent asserts that the Secretary has ignored these separate areas that were stipulated to by the parties and described and located on the map attached as Exhibit A to the stipulation.
The Respondent points out that the fatality at issue in this proceeding took place on an empty barge on the Ohio River, an area that it does not own and where none of the work of preparing coal takes place. Respondent maintains that MSHA jurisdiction does not extend to property: (1) that is not owned by the operator, (2) where none of the work of preparing coal takes place; and (3) where MSHA admittedly has no applicable regulations. The Respondent finds it difficult to imagine how the Secretary can, in good faith, attempt to assert jurisdiction over the river portion of the dock, an area that she admits is neither a surface coal mine nor the surface work area of an underground coal mine and thus, an area for which she has no applicable regulations.
The Respondent's Arguments
The Respondent argues that unlike OSHA and the Coast Guard, MSHA has no regulatory authority over the Ireland Dock or river portion of the dock, and has promulgated no regulations governing vessels on navigable waterways, the safety measures for moveable barges, or the safe operation of Coast Guard registered tug boats used in moving the barges (Stip. Nos. 115-117).
The Respondent cites the deposition testimony of MSHA's designated representative who testified that the only regulations that arguably apply to a loading dock and that define the safety measures that must be employed while on a barge at a loading dock are contained in 30 C.F.R. § 77.205(a) and (b) and § 77.1710(h). However, the Respondent points out that MSHA's Part 77, Safety Standards are expressly limited to "surface coal mines...and to the surface work areas of underground coal mines..." 30 C.F.R. § 77.1 (emphasis added), and that during his deposition, MSHA's representative expressly conceded that the Ireland Dock, or the river dock portion, are not surface coal mines or the surface work areas of an underground coal mine and the Secretary has now so stipulated. (Stip. Nos. 14, 24). The Respondent concludes that these two regulations are thus inapplicable and the Secretary has no regulations governing the areas where the deaths of both Mr. Anderson and Mr. McIntyre occurred. The Respondent maintains that OSHA and the Coast Guard have promulgated applicable regulations and that jurisdiction is with one of these agencies.
The Respondent relies on the testimony of MSHA's representative that at the time of Mr. McIntyre's death, MSHA had no regulations: (1) defining the types of vessels on navigable waters over which it has jurisdiction; (2) addressing the safety measures that must be used while inspecting a moveable Coast Guard registered barge on a navigable waterway; or (3) concerning the safe operation or use of Coast Guard registered tugboats used in the moving of barges on navigable waterways (Stip. Nos. 115-17). Further, the Respondent asserts that the other standards cited in these matters (30 C.F.R. §§ 77.400, 48.31, and 50.10) only apply to "surface coal mines" and/or the "surface work area of underground coal mines." See 30 C.F.R. §§ 77.1,48.21. and 50.2 (work of preparing coal).
With regard to the prior fatal accident of July 30, 2000, where the victim was struck by lightning and fell into a moveable barge, the Respondent reiterates that the Coast Guard assumed jurisdiction over the incident and conducted an investigation, and MSHA declined to exercise jurisdiction over this fatality that occurred off mine property.
The Respondent points out that the December 29, 2008, fatality accident involving an employee of McElroy mine who drowned after apparently falling off a moveable barge that was tied off an adjacent moveable barge similar to the prior accident, was initially investigated by the Coast Guard and that after declining to exercise jurisdiction, MSHA assumed jurisdiction even though it had no regulations pertaining to the area where the incident occurred.
The Respondent states that in order to effectuate the "convenience of administration," MSHA and OSHA entered into an Interagency Agreement, which attempts to delineate the areas of authority and to provide a procedure for resolving general jurisdictional questions between the two agencies. 44 Fed. Reg. 22827 (April 17,1979). Pursuant to the Interagency Agreement, "the primary basis for determining jurisdiction between MSHA and OSHA depends upon which activities occur on mine property as opposed to milling or manufacturing operations which occur off of mine property." Secretary v. Old Dominion Power Co. 3 FMSHRC 2721, 2735 (Jan. 1981) (ALJ), aff’d in part and rev'd in part, 6 FMSHRC 1886 (Aug. 1984) (emphasis added).
The Respondent cites MSHA's Fatal Injury Guideline Matrix (Motion Ex-A), in support of its assertion that since the accident in question did not occur on a mine property, or was the result from activity on mine property, the incident is determined to be “not chargeable”. The Respondent cites Paul v. P.K - K.B.B. Inc. 7 FMSHRC 1784,1787 (Nov. 1985), where the Commission found that a mine engineering office located off of mine property was not "a coal or other mine", and noted that while (the definition of 'coal or other mine' provided in Section 3(h) of the Mine Act is expansive and is to be interpreted broadly, Oliver M. Elam. 4 FMSHRC 5,6 (January 1982), the inclusive nature of the Act's coverage is not without bounds". Id at 1787.
The Respondent notes that the Commission’s decision in Paul was distinguished in Secretary v. Jim Walters Resources. Inc. 22 FMSHRC 21 (Jan. 2000), in which the Commission found both a Central Supply Shop and a Central Machine Shop owned and operated by the operator to be "mines" within the meaning of the Mine Act.
The Respondent concludes that in the instant case, the fatality did not occur on mine property or result from an activity taking place on mine property and, therefore, the incident is not chargeable. It notes that at the time of the fatality, the Ireland Dock and the river portion of the Ireland Dock were not real property owned by the Respondent and were operating pursuant to a permit issued by the Corps of Engineers and were neither bonded nor permitted as coal mines by the State of West Virginia (Stip. No. 10). The tow boats used to move and position moveable barges at the Ireland Dock are registered with the Coast Guard, not MSHA (Stip. No. 19). The Respondent does not own these barges and MSHA does not exercise jurisdiction over the coal that is unloaded from the barges (Stip. Nos. 18, 20). The Secretary has no record of an MSHA inspector ever writing a citation over a hazard involving the river portion of the Ireland Dock -where the fatality occurred (Stip. No. 22).
The Respondent further concludes that the situation in the instant case is comparable to the prior fatality where, under similar circumstances, the Coast Guard exercised jurisdiction. The Respondent cites an email dated July 31, 2000, by Tim Thompson, MSHA's District 3 Manager, regarding that incident, stating "Based upon the Coast Guard's investigation, the decision is to treat it as one of their cases. We will not count it therefore, nonchargeable" (Stip. No. 112).
The Respondent points out that the Secretary concedes that the law governing MSHA's jurisdiction over the IRLF, the Ireland Dock, and the river portion of the dock, as well as the work performed at those locations has not changed since 2000 (Stip. Nos. 113, 114). Respondent concludes that as in the prior fatality, the fatality that occurred in the instant case did not occur on mine property or result from an activity on mine property and MSHA does not have jurisdiction over the death.
The Respondent argues that none of the "work of preparing coal" is done at the river portion of the Ireland dock or at the dock itself. The work of extracting and preparing the coal was done by other entities before it reaches the IRLF. The McElroy Coal Company mines the bituminous coal that it sends to the prep plant for processing by cleaning, breaking, crushing, sizing, washing, drying, mixing and blending the coal to meet the specification of McElroy and its customers (Stip. Nos. 1, 2). Information regarding coal specifications is communicated to workers at the prep plant who take the necessary steps to ensure that the coal is prepared pursuant to those specifications (Stip. No. 3).
The Respondent states that the Secretary admits that no breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, layer loading, or loading of coal takes place at the river portion of the Ireland dock (Stip. No. 21), and it is without question that none of the "work of preparing coal" as defined in the Mine Act takes place at the area where the fatality in this case occurred and that MSHA has no jurisdiction over that incident.
The Respondent notes that the coal arriving at the Ireland Dock has been fully processed at the McElroy prep plant to meet the specifications of McElroy mine and its customers before it is transported by belt conveyor to the IRLF, where it is dumped by an overhanging belt conveyor into barges (F.O.B. barge) at the Ireland docks, an unbonded river bank area below the high water line at the IRLF, whose purpose is to facilitate the transporting of processed coal to customers of McElroy Coal Mine (Stip. Nos. 7, 13). The coal leaving the conveyor belt and landing on the barge belongs to the customer, not to McElroy.
In response to the Secretary's attempts to exercise jurisdiction over the accident area based on rare occasions when coal has been loaded in two layers of processed coal onto barges at the Ireland dock, the Respondent states that even when that occurs, the physical characteristics of the coal are not altered, improved or changed in any way since the coal has undergone all of the necessary preparation/processing before arriving at the dock. The Respondent points out that it cannot alter the coal after it has been loaded on the barge because the coal belongs to the purchaser the moment each layer of finished, marketable coal lands on the barge. Once coal is loaded into barges at the Ireland dock, the loaded barges are transported along the Ohio River to the ultimate customer (Stip. No. 76). Under these circumstances, the Respondent concludes that none of the work of preparing coal is done at the Ireland dock.
The Respondent argues that the cases in which this Court has found MSHA jurisdiction involved citations over conditions or activities on mine property, did not involve conditions or activities off of mine property, and are uniformly distinguishable from the situation in the case at bar. The Respondent states that the issue in Marion Pocks. Inc. v. Secretary. 10 FMSHRC 1589 (Nov. 28,1988), was whether a loading facility was a mine subject to MSHA jurisdiction, and that all of the violations involved conditions on the permitted, bonded, mine property (i.e., diesel fuel storage tank next to a coal storage pile, slate picker platform and belt rollers). In that case, the Respondent points out that unlike the Respondent's IRLF facility, coal was cleaned, crushed, and sized and slate and other debris were removed from the coal at the loading facility which operated under an MSHA identification number, and protested jurisdiction only because other similar facilities in the area were not being inspected by MSHA.
Similarly, the Respondent points out that in affirming this Court's finding of MSHA jurisdiction in Secretary v. Mineral Coal Sales. Inc. 7 FMSHRC 615,621 (May 1985), the Commission pointed to the storing, mixing, crushing, sizing and loading of coal, all of which fell within the statutory definition of coal preparation, and took place at the facility at issue - i.e., the permitted mine property.
Commenting on the Court's decision in Harman Mining Corp. v. Secretary. 3 FMSHRC 45 (Jan. 1981), aff’d 671 F.2d 794 (4th Cir. 1981), the Respondent suggests that it supports its position in the instant case. In that case, the issue was whether a fatal railroad haulage accident that occurred at the operator's coal prep plant was subject to MSHA jurisdiction. The Respondent notes that this Court framed the jurisdictional issues as to whether "the tipple and preparation plant (are) part of a coal mine within the meaning of the Act" and whether "the area of land where the N&W railroad tracks are located and where loaded coal cars are parked awaiting transportation by the railroad (is) part of a coal mine " Id. at 47. The Respondent comments that the Court noted that "the definition of 'coal mine' follows the mining process from extraction through preparation." Id at 48, and noted that the "railroad cars are loaded at the tipple preparation plant and dropped onto the tracks".
Reviewing the language of Section 3(h) of the Mine Act, which includes within the definition of "coal or other mine," "mining activities which take place at a tipple or preparation facility," the Court found the railroad track area was part of the operator's 'coal or other mine' for purposes of the Act." Id. at 50-51, emphasizing that the operator was the "legal owner of the land where the track system is located" and the fact that the railroad had been allowed to use the land for its tracks and equipment did not negate such ownership. The Court reasoned that although coal extraction did not take place at the prep plant, the work of loading the processed coal fell within the language of Section 3(h) in that the work of preparing coal "includes custom preparation facilities." Id. at 51. The Respondent concludes that the holding in Harman Mining is in complete contrast to the case at bar in which none of the cited activities took place on permitted mine property that it owns.
The Respondent concludes that none of the cases previously considered by this Court involve activities taking place on non-permitted, unbonded property below the high water mark of a river, and cites cases from other jurisdictions considering activities on non-permitted property, where none of the work of preparing coal takes place, that found such an area to be outside the realm of MSHA jurisdiction.
The Respondent cites Bush & Burchett Inc. v. Reich. 117 F. 3d 932 (6th Cert), Cert Denied 553 U.S. 807 (1997), where the Sixth Circuit determined that a road and bridge connecting a coal mine to a railroad load-out facility, the work site where two fatalities occurred, was subject to OSHA, rather than MSHA jurisdiction. Because MSHA had promulgated regulations broad enough to cover the work site at issue, the Sixth Circuit stated that OSHA would have been preempted if MSHA had jurisdiction over the work site. The Respondent concludes that the issue focused on whether the work site was a "mine" as defined in the Mine Act, and that the Court rejected the argument that the bridge work site fell within the definition of a mine because the road to it was appurtenant to a mine, reasoning that without some limitation on the meaning of the term "roads appurtenant to" as used in the Mine Act, MSHA jurisdiction could "extend to unfathomable lengths..."Id. at 937. In finding that MSHA had no jurisdiction, the Court reasoned that "a road and bridge are used in the transporting of coal, which, unlike loading, is not delineated as one of the tasks associated with the work of preparing coal," Id. at 939. The Respondent points out that the Mine Act does not include any reference to "rivers appurtenant to."
Like the road and bridge at issue in Bush & Burchett Respondent asserts that in this case, barges are used for the sole purpose of transporting the coal, and as noted by the Sixth Circuit, transportation is not part of the "work of preparing coal" as defined in the Mine Act and the barge on which the accident victim was last seen is not subject to MSHA jurisdiction. The Respondent notes that unlike the situation on Bush & Burchett, MSHA has not even promulgated regulations covering the work site where the victim was working when he died.
Citing a fourth decision finding that an employee was not entitled to Black Lung benefits, Director. OWCP v. Consolidation Coal Co. 923 F. 2d 38 (4th Cir. 1991), the Respondent states that the court focused upon the employee's work area in denying benefits. In that case, the claimant's deceased husband had worked at a dock house loading facility three hundred yards from the preparation plant where the coal was blended and prepared for market before being placed on a conveyor belt to the dock house. The Court found that the “work of preparing coal" does not include loading prepared coal onto barges, and quoting Collins v. Director. OWCP, 795 F. 2d 368,372, (4th Cir. 1986), observed as follows at 923 F. 2d at 42:
Traditionally the tipple marks the demarcation point between the mining
and marketing of coal. It is at that structure the screening of the coal occurs
and the final product is loaded for transport. When coal leaves the tipple,
extraction and preparation are complete and it is entering the stream of commerce.
The Respondent states that the Court concluded that "the coal which reached the dock house was not coal in preparation", and, accordingly held that involvement in the transportation and delivery of coal after it was processed and prepared for market was not the work of preparing coal within the definition of "coal mine" so as to entitle the claimant to benefits under the Black Lung Benefits Act.
Citing an Eighth Circuit case, Herman v. Associated Electric Cooperative. Inc. 172 F. 3d, 1078 (8th Cir. 1999), concerning a question of whether a coal-fired electric power generating facility was a "coal mine" subject to MSHA jurisdiction because it processed the coal in various ways before burning it, the Court, while acknowledging that the Mine Act is to be given the broadest interpretation possible, nevertheless held that "not all businesses that perform tasks under 'the work of preparing coal'... can be considered mines." Id. at 1082. Respondent states that while the court noted some decisions finding a utility to be subject to MSHA, because the coal in the case before it was already marketable when it reached the facility, the Court concluded that the facility's operations were more properly characterized as "manufacturing" rather than "mining." The court also noted OSHA's stated position that MSHA's policy was to inspect those areas of a power plant involving the handling and processing of "run-of-mine" coal while leaving the inspection of areas involving the handling of previously processed coal to OSHA. Id. at 1083.
Citing a Fourth Circuit case, United Energy Services. Inc. v. Federal Mine Safety and Health Administration. 35 F. 3d 971,975, (4th Cir. 1994), finding MSHA jurisdiction, the Respondent states that the Court noted that "(a)lthough delivery of coal to a consumer after it is processed usually does not fall under the coverage of the Mine Act, United Energy's activities occur a step earlier in the overall process." The Respondent finds it significant that cases such as United Energy and Consolidation Coal refer to the act of loading and delivering processed coal to the consumer as falling outside the scope of "work of preparing coal".
The Respondent argues that the process followed at the Ireland dock of receiving processed coal and loading the coal onto barges for delivery, falls within the act of "delivering processed coal" and outside the "work of preparing coal", and that no processing-cleaning, sizing, drying, or crushing of coal occurs at the dock, and that no dock activities occur "a step earlier" in the overall process, as in United Energy. Rather, as in Oliver M. Elam, its dealings with the coal involve the loading of processed coal onto barges for delivery to the consumer, outside the jurisdiction of MSHA.
The Respondent asserts that the coal is finished when it leaves the McElroy prep plant, and when it is received at the dock it is a finished product in the stream of commerce, and in the course of being delivered to the customer. Its movement down the conveyor is the delivery of the coal to the customer, who legally owns the coal when it is loaded onto the barges. The Respondent states that the walkway is a structure used in the delivery of this coal, not in the work of preparing the coal, and that the barges, both fixed and moored, are vessels used in the delivery of the coal to the customer, not in the work of preparing coal. The Respondent concludes that the loading dock facility at issue in Consolidation Coal was not a "mine" as it was not involved in the “work of preparing coal” for purposes of the Black Lung Benefits Act. So too, the Ireland Dock, the non-permitted river bank area below the high water line, walkway and barge, does not fall within the definition of "mine" so as to give MSHA jurisdiction.
Acknowledging the Secretary's argument that rare layer loading at the Ireland Dock constitutes "work of preparing coal", the Respondent maintains that this cannot be said for the river portion of the dock, the area where Mr. McIntyre fell and drowned. Citing the holding in Associated Electric Cooperative 172 F. 3d at 1083, the Respondent asserts that one section of an operation may be under the jurisdiction of OSHA, and another under MSHA, and that even if any portion of the IRLF is found to be subject to MSHA jurisdiction, jurisdiction over The River Portion of the Ireland Dock is a separate issue. Respondent asserts that, without question, no work of preparing coal is done at the river portion of the dock, which consists of moveable barges in the Ohio River that are brought in, loaded with coal, and shipped down river. (Stip. No. 16). Further, no breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, layer loading, or loading of coal takes place in the river portion and certainly not on the empty barge where the decedent was last seen. (Stip. No. 21). Respondent points out that there is no record of an MSHA inspector ever writing a citation or order over a hazard involving the river portion of the dock, (Stip. No. 22), and concludes that MSHA simply does not have jurisdiction over the area where the incident involving Mr. McIntyre took place and the citations should be vacated, and that as in the case of the prior accident, jurisdiction belongs to OSHA or the Coast Guard.
The Respondent takes the position that OSHA has promulgated specific regulations governing barges, the loading of barges, ramps and other means of access to barges and riverbanks. (29 C.F.R. § 1918.26; 29 C.F.R. 1917.126), and that longshoring operations are defined in 29 C.F.R. § 1918.1, which states that “(a) The regulations of this part apply to longshoring operations and related employments aboard vessels. All cargo transfer accomplished with the use of shore-based material handling devices is covered by part 1917 of this chapter.”
The Respondent states that under 29 C.F.R. § 1918.2, "longshoring operations" are defined as "the loading, unloading, moving or handling of cargo, ship’s stores, gear, or any other materials into, in, on or out of any vessel." "Vessel" in turn, is defined as "every description of watercraft or other artificial contrivance used or capable of being used for transportation on water, including special purpose floating structures not primarily designed for or used for transportation on water." "Barge" is defined as "an unpowered, flat-bottomed, shallow draft vessel including river barges, scows, carfloats and lighters." The Respondent concludes that, by regulation, OSHA has staked its position that barges fall within its regulatory jurisdiction, citing Secretary of Labor v. Christie Constructors. Inc. 18 O.S.H.Cas. (BNA) 1559.1998 WL 758714 (OSHA jurisdiction found over a fixed barge and piles driven through it and into the river bed).
The Respondent argues that by OSHA definition, OSHA has further staked its position by way of regulation that a facility like the Ireland dock is a marine terminal over which it has jurisdiction. Respondent cites 29 C.F.R. § 1917(a), dealing with marine terminals and including within its scope "the loading, unloading, movement or other handling of cargo, ship's stores or gear within the terminal or into or out of any land carrier, holding or consolidation area..." "Marine terminal" is defined as:
wharves, bulkheads, quays, piers, docks and other berthing locations and
adjacent storage or adjacent areas and structures associated with the primary
movement of cargo or materials from vessel to shore or shore to vessel including
structures which are devoted to receiving, handling, holding, consolidating and
loading or delivery of waterborne shipments or passengers, including areas
devoted to the maintenance of the terminal or equipment. 29 C.F.R. § 1917.2
(emphasis added).
The Respondent further argues that the Coast Guard also has applicable regulations, and in Secretary v. St. James Stevedoing. Co. 18 O.S.H. Cas. 2042 (1999), the ALJ noted that the Coast Guard is the dominant federal agency with statutory authority to prescribe and enforce regulations affecting seamen aboard vessels. The Court noted that while Coast Guard regulation over inspected vessels is "expansive," regulating involving uninspected vessels is limited. Id. at *3. (Citing 46 U.S.C. Chapter 41; Tidewater Pacific. Inc. 17 BNA OSHA 1920 (No. 93-2529, 1997).
Respondent maintains that in order for OSHA's jurisdiction to be preempted, MSHA or another agency must have exercised its regulatory authority by issuing regulations governing the "environmental area in which an employee customarily goes about his daily tasks." Southern Railway. 539 F. 2d at 339. Respondent asserts that since the Ireland Dock and the river portion of the dock consisting of walkway, non-permitted area and barges, are "environmental areas" separate and distinct from the Prep Plant and McElroy's coal mining operations, and since MSHA has, by it own admission, promulgated no regulations of any kind governing these areas, it cannot assert jurisdiction in the instant cases.
In conclusion, the Respondent argues that the Ireland dock and river portion of the dock are not coal mines for purposes of the Mine Act, and are in fact unbonded, non-permitted areas where workers do not engage in the work of preparing coal. In support of its argument, the Respondent relies on the deposition testimony of the Secretary's representative that none of the “work of preparing coal" is done at the area where the fatality occurred. (Stip. No. 21). The stipulation agreed to by the parties states that "No breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, layer loading, or loading of coal takes place in the river portion of the Ireland Dock." (emphasis added).
Citing the Commission's holding in Secretary v. Southern Nevada Paving. 2008 WL 4287781, 8 (FMSHRC Aug. 2008), that while definition of a mine is “very broad”, the law governing MSHA jurisdiction should not be read "contrary to common sense", the Respondent concludes that extending MSHA jurisdiction to an unbonded, non-permitted river dock and barges on navigable waterways-areas that MSHA's own representative denies are surface coal mines or the surface work areas of underground coal mines likewise defies common sense.
The Secretary's Arguments
Based on the stipulation of facts by the parties, the Secretary asserts that it is clear that the Respondent's IRLF facility and the McElroy Mine and preparation plan are closely related, both operationally and as a result of shared management. The Secretary points out that at the time of the fatality, all supervision at the Respondent's loading facility, including safety training for facility miners, and all instruction as to the loading of coal by miners at the facility was provided by McElroy Coal Company preparation plant employees and management.
The Secretary further asserts that the activities taking place at the loading facility, the McElroy mine and preparation plant, constituted an integrated operation, and that the mine identity (ID) reports filed by these operations identify the same corporate officers and the same person in charge of safety and health at both facilities.
The Secretary discusses all of the relevant stipulated facts explaining the initial processing of coal from the McElroy mine at the preparation plant and transfer of the coal to the Respondent's coal transfer building at the loading facility by conveyer belt, and subsequent transfer to the surge silo or stockpile where it may be blended to customer specifications before transfer to the final load-out belt where it is loaded directly into the barges from that belt.
The Secretary relies on Stipulation No. 83, in support of the contention that customer coal specifications were also met by layer loading at the dock loading facility by pouring coal of one quality directly into a barge and then filling the rest of the barge with coal of a different quality by pouring the second quality of coal into the barge, and that this coal blending was performed at the loading dock into the barge tethered to the dock.
The Secretary confirms the stipulation that MSHA has been inspecting the Respondent's loading facility as a surface facility since at least the year 2000, and inspects the loading facility twice a year. The areas inspected have included the loading dock, barge load-out, conveyor belts, draw-off tunnels, the sample building, the coal storage areas, the silo area, the pump house, the MCC building, the bathhouse, the lab area, the office, storage areas, haul roads and berms, fire fighting equipment, potable water, sanitary facilities, communications, and other equipment. I take note of the fact that MSHA's inspection areas that are listed do not include the river portion of the dock where the moveable barges or barges are loaded and located, or the boats that deliver the coal to customers, none of which are owned by the Respondent.
The Secretary further asserts that between 2002 and 2011, forty-seven (47) citations and one order were issued directly to the loading facility. However, no further information was forthcoming with respect to these violations and there is no evidence that any of them were issued at the river portion of the dock or the barges tethered to the dock.
Citing the statutory Mine Act jurisdictional language and the definition of a "mine", the Secretary argues that Congress intended a broad interpretation of what constitutes "a coal or other mine" and that any doubts must be resolved in favor of inclusion of a facility within the coverage of the Act.
Citing case precedent, RNS Services. Inc. v. FMSHRC. 115 F. 3d 182,184 (3rd Cir. 1997), the Secretary asserts that resolution of statutory coverage requires a "functional analysis" that determines whether a facility is covered based upon the nature of the functions at the facility, and that the Secretary's determination, as the policy maker and enforcer, is entitled to deference, and must be upheld as long as it is reasonable.
The Secretary asserts that the Respondent's loading facility, in and of itself, falls within the broad definition of a mine based on the fact that the coal preparation activities enumerated in Section 3(I) of the Mine Act, namely, mining, storing and loading of coal, and such other work of preparing coal as is usually done by the operator of a coal mine occur at the loading facility.
Citing Oliver M. Elam. Jr.. Co. 4 FMSHRC 5, 7 (1982), the Secretary points out that the Commission adopted a two-part inquiry to determine whether a facility is a "mine", namely, (1) whether the operation performs one or more of the activities listed in Section 3(I) of the Act, and (2) a consideration into the nature of the operation performing such activities. The Secretary acknowledges that in Elam, the Commission concluded that a commercial dock where coal and other products were loaded only on barges, was not a "mine" because even though Elam crushed coal, this activity was performed solely to facilitate the loading of coal and not to meet customer specifications.
The Secretary further relies on Mineral Coal Sales. Inc.. 7 FMSHRC 616 (1985), and Marion Docks, Inc. 10 FMSHRC 1598,1619 (ALJ), concerning the selective loading of coal from stockpiles under the direction and control of a coal broker in order to ensure its suitability for a particular use or to meet market specifications, and mixing of coal at a railroad siding that was tested by a coal broker for quality specifications and then taken from particular stockpiles and subsequently crushed and loaded onto railroad cars and sampled and tested again by the broker to ensure customer specifications, in support of her argument that the Respondent's loading facility meets the tests in the Elam case, and as applied in Mineral Coal Sales for Mine Act coverage.
Relying on the stipulations regarding the additional mixing and blending of coal after it arrives at the loading facility in order to meet customer specifications, the Secretary concludes that the facility meets the requirements enunciated in Elam for the loading facility to be treated as a "mine" subject to the Act. Further, given the fact that the Respondent analyzes and blends the coal it loads at the facility to determine if it meets customer specifications, just as the broker did in Mineral Sales, the Secretary offers further support for a conclusion that the loading facility is a "mine".
The Secretary cites Sixth Circuit decision Kinder Morgan Operating. L. P. 78 Fed. App’x. 462, 2003 WL 22360971 (6th Cir. 2003), affirming the Commission's decision at 23 FMSHRC 1288,1293-94 (2001), that a marine loading facility was engaged in "the work of preparing the coal", and was therefore subject to MSHA jurisdiction. The court rejected Kinder Morgan's argument that it did not prepare coal, but rather merely stored and loaded already prepared coal, and adopted the Commission's conclusions that the layer-loading performed by Kinder Morgan was "mixing or blending" and constituted work of preparing the coal since its mixing was done to make the coal suitable for customer specifications. The Secretary concludes that this work was like the work performed by the Respondent in the instant case.
The Secretary cites her Program Policy Manual, Volume 1, 1.3-4 (2003) expressing jurisdiction over facilities that "prepare coal according to any specifications for benefit of either the operator of (sic) the customer". She further argues that the legislative history of the Mine Act indicates that the principal reason for its passage was to expand MSHA jurisdiction, and that any doubts should be resolved in favor of inclusion of a facility and that any ambiguous definitions of a "mine" should defer to the Secretary's reasonable interpretation of the true scope.
The Secretary cites several cases addressing the definition of a miner under the Black Lung Benefits Act that have held that the loading of coal by a preparation plant is itself sufficient to demonstrate the work on a coal mine required for establishing the Claimant seeking benefits is a miner, and that the courts have looked to the definition of a "mine" provided in the Mine Act.
Two examples of black lung decisions are Hanna v. Director. OWCP, 860 F. 2d 88, 93(3rd Cir. 1988) where the court held loading coal from a preparation plant into barges was a necessary step in the preparation of coal and concluded that the claimant was a miner. However, in Director. OWCP v. Consolidation Coal 923 F. 2d 38,41-42 (4th Cir. 1991), the court held that a river man loading coal was not working in a mine because the coal was completely processed before being placed on the conveyor belt to the loading dock. The Secretary asserts that this case is distinguishable because the dock and barges at the Respondent's loading facility, unlike the facility in Consolidated Coal, engaged in the processing of coal.
The Secretary disputes the Respondent's assertion that the facility dock and the river portion of the dock, (characterized by the Secretary as the "dock area and barges tethered to the dock"), are not subject to MSHA's jurisdiction because these areas are off of mine property where the incidents that resulted in the citations occurred. The Secretary maintains that the undisputed facts establish that these areas are part of the loading facility and that the Respondent engaged in coal preparation and the mixing and loading of coal at the dock and barges, and the coal is loaded into barges by a conveyor belt which dumps it directly into the barge. Further, during the course of a year, coal is mixed by layer loading of barges.
The Secretary asserts that the Respondent engaged in activities along the empty barges moored at the dock in preparation for loading in order to meet a customer's specifications. Miners inspect and pump the barges of water in response to customers' complaints, and that the accident victim was engaged in the checking of a barge for water at the time of his death.
The Secretary cites a case involving the cleaning of railroad cars so they could be loaded with new coal at the preparation plant, similar to checking barges for water. The court held that the cleaning of the railroad cars was integral to the preparation of coal, Mitchell v. Director. OWCP. 855 F. 2d 485,490 (7th Cir. 1988).
The Secretary cites Harman Mining Corp. v. FMSHRC. 671 F 2d, 794 (4th Cir), holding that railroad siding tracks, owned by a railroad, but used by a mining company for loading coal, were part of the mine subject to Mine Act jurisdiction because the activities at the track facilities were incidental to loading and storage of coal and therefore part of the work of preparing the coal for market. The court further found that the railroad's ownership of the tracks to be immaterial because the coal company used the tracks in its daily operations.
The Secretary states that MSHA has adopted health and safety standards applicable to the activities conducted on barges and loading docks, including 30 C.F.R. § 77.1710(h), requiring life jackets or belts where there is danger of falling into water, and training standard 30 C.F.R. § 48.31(a) requiring mine operators to provide training in hazard recognition and avoidance.
The Secretary asserts that the accident victim, a foreman from the McElroy preparation plant, was assigned to perform regular duties on and along the loading dock and empty barges moored at the dock, and was not provided hazard training for those duties.
The Secretary further states that the Department's guidance regarding jurisdiction over docks and barges tethered to docks states unequivocally that MSHA "has authority over loading/unloading of coal or other minerals into/out-of vessels, including associated pier or dock facilities, when such transfer is integral to the extraction, preparation, or milling process. MSHA does not have authority once the vessel is loaded/unloaded and is underway."
The Respondent filed a response to the Secretary's brief and included a "corrective statement of facts". The Respondent points out that the joint stipulations cover three separate geographic areas that are at issue in this case and shown in the map attached to the stipulations. Respondent confirms that it is only challenging two areas, namely, river portion of the Ireland Dock and the areas that it claims are separate and distinct from its mine permitted real property.
The Respondent asserts that the Secretary's brief ignores the three separate geographical areas agreed-upon by stipulation. By ignoring these agreed-upon geographical distinctions the Respondent points out that the Secretary states facts and cites stipulations for matters not included in the stipulations. As an example, Respondent states the Secretary asserts that the accident victim, Mark McIntyre, on the night he was last seen, was sent to check "barges tethered to the dock at Ireland River Loading Facility," citing Stipulation No. 91 (Secretary's Brief, p. 1). Respondent states that Stipulation No. 91, in fact, makes no mention of the IRLF, and Stipulation No. 92 clarifies that Mr. McIntyre was last seen on an empty barge on the river portion of the Ireland Dock.
Further, Respondent cites the Secretary's statements that "MSHA has been inspecting the. Loading Facility as a surface facility since at least 2000" (citing Stip. No. 103), and that "(a)s with all surface facilities, MSHA inspects the IRLF twice a year" (citing Stip. No. 105). (Secretary's Brief, p. 5) (emphasis added). The Respondent maintains that neither of the cited stipulations refers to a "surface facility" and the Secretary has stipulated that neither the Ireland Dock nor the river portion of the Ireland Dock are surface coal mines or the surface work areas of underground coal mines. (Stip. Nos. 14, 24). MSHA's Rule 30(b)(6) representative has so testified, in testimony binding upon the Secretary.
The Respondent challenges the Secretary's repeated references to the MSHA inspector's citation charging it failed to provide hazard training to Mr. McIntyre, as though such failure is an established fact (Secretary's Brief, pp. 2,14). Respondent states that it has disputed the basis of the citation pursuant to the agreement of the parties and is awaiting resolution of the jurisdictional issues to address the underlying citations. The Respondent concludes that since it is clear that it does not contest MSHA's jurisdiction over the IRLF, the Secretary's first eleven (11) pages of her brief are largely irrelevant.
The Respondent concludes that it is beyond dispute that it does not own the land under the Ireland Dock or the river portion of the Ireland Dock (i.e., the Ohio River). Respondent asserts that Stipulation No. 26, providing that it owns the Ireland Dock and river portion of the Ireland Dock, only refers to the equipment and platforms that it owns, and that the areas were not on mine-permitted property and were operating pursuant to U.S. Coast Guard permits. Respondent states it does not own the barges, the real property, or the waterway on which the Ireland Dock and the river portion of the Ireland Dock are located. (Stip. Nos. 10, 11, 13, 18). Furthermore, the Respondent conceded that no "work of preparing coal" takes place where Mr. McIntyre's accident happened on the river portion of the Ireland Dock. (Stip. No. 21).
The Respondent concludes that the Secretary is conclusively bound by her concessions that the Ireland Dock and the river portion of the Ireland Dock are neither surface coal mines nor the surface work areas of underground coal mines, and that she is further bound by her stipulation that no "work of preparing coal" takes place on the river portion of the Ireland Dock. In the absence of any applicable regulations, the Respondent concludes that the Secretary has no jurisdiction over those areas.
The Respondent states that since it concedes MSHA jurisdiction over the IRLF, the pertinent portion of the Secretary's Brief begins on page 12 wherein she argues that the Ireland Dock and river portion of the Ireland Dock, even considered in isolation, are covered by the Mine Act. In so arguing, Respondent maintains that the Secretary ignores the fact that the Ireland Dock is an unbonded, non-mine permitted area and that the fatality at issue took place on property not owned or operated by the Respondent - a moveable barge in the Ohio River. The Respondent asserts that none of the cases cited by the Secretary involve citations arising out of an incident that occurred on a barge. Referring to the decision in Kinder Morgan Operating. L.P. v. Chao 78 Fed. App’x. 462 (6th Cir. 2003), cited by the Secretary, involving MSHA's asserted jurisdiction over a marine loading facility, where the Sixth Circuit affirmed a divided Commission decision finding MSHA jurisdiction over the facility where coal was routinely layer-loaded and blended from different stockpiles, and then transferred to a conveyor belt and loaded onto barges, the Respondent distinguishes that decision from the issue presented in the instant case.
The Respondent argues that in Kinder Morgan the Commission reviewed the ALJ's determination that the terminal was subject to the Mine Act because it engaged in three of the functions listed in the definition of the "work of preparing coal - "storing", "mixing", and "loading", and that the jurisdiction determination pertained to the terminal and not to the barges themselves. The Respondent finds it significant that two of the Commissioners expressly noted that "there is no evidence in the record that MSHA has asserted jurisdiction over barges or railroad cars bringing coal to the Terminal, over barges transporting coal from the Terminal to other electric utilities, or over utilities that unload, handle, and consume the coal." Id. At 1297 (emphasis added).
The Respondent concludes that unlike Kinder Morgan, the Secretary in the instant case goes beyond asserting jurisdiction over the IRLF to asserting jurisdiction over the empty barges on the Ohio River, an area that is clearly beyond the definition of "mine" set forth in the Mine Act. Respondent further concludes that the Black Lung benefits cases cited by the Secretary further support its position, as even those findings a claimant eligible for benefits focus upon where the employee was working. In this regard, the Respondent points out that the cited Black Lung benefits decisions in Hanna and Spuria involved claimants that the courts found were on the mine site. The Respondent distinguishes those decisions with the Sixth Circuit decision in Ray v. Brushy Creek Trucking Co. 50 Fed. App’x. 659 (6th Cir. 2001), denying Black Lung benefits on the ground that the claimant worked on a barge located at a distance from the coal mine and/or tipple site, and that Congress did not intend to extend benefits to workers that far from the actual mine site. The Court affirmed the ALJ's determination that the claimant's employment on a barge did not qualify as work in the "preparation of coal".
The Respondent points out that in the instant case Mr. McIntyre was not working on mine property at the time of his death, was nowhere near the tipple and was on a barge 1 ½ miles from the coal mine. Under the circumstances, the Respondent concludes that MSHA jurisdiction does not logically extend this far and the case law does not support such extension.
In response to the Secretary's argument that jurisdiction extends to the empty barges because work on the barges was done to prepare them for coal, and her reliance on the Black Lung case of Mitchell v. Director OWCP. 855 F.2d 485, 490 (7th Cir. 1988) as an "analogous case", the Respondent states that the railroad cars in Mitchell were cleaned on mine property where the Secretary clearly has regulatory authority, and the case thus does not support the Secretary's position. In finding coverage, the court found that Mitchell performed work on mine property approximately 100 yards from the coal preparation plan and noted the ALJ’s finding that he had worked at a coal mine location, thus satisfying the "situs" test for coal mine employment.
The Respondent argues that unlike the situation in Mitchell, Mr. McIntyre was not working anywhere in the vicinity of the prep plant, but on an empty barge on the Ohio River at the time of his accident The Respondent concludes that the Secretary's suggestion that Mr. McIntyre took MSHA jurisdiction with him and provided Mine Act coverage over any accident that occurred wherever he went defies common sense. Respondent notes that taking this argument to its logical conclusion would extend MSHA jurisdiction to an accident or mishap that occurred in a hardware store, located two miles from any mine property, where a miner went to purchase equipment or services to be used in the preparation of coal. Respondent concludes that case law does not support such extension of jurisdiction to accidents that occur off of mine property.
The Respondent previously cited the Black Lung decision in Director. DWCP v. Consolidation Coal Co. 923 F. 2d 38 (4th Cir. 1991), where the deceased claimant had worked at a dock house loading facility 300 yards from the preparation plant where the coal was blended for market before being routed by conveyor belt to the dock house. The court concluded that the "work of preparing coal" did not include loading prepared coal onto barges", quoting Collins v. Director OWCP 795 F. 2d 368,372 (4th Cir. 1986), in part that "the tipple marks the demarcation point between the mining and marketing of coal",... and, when coal leaves the tipple, extraction and preparation are complete and it is entering the stream of commerce" (923JF.2dat42).
In response to the Secretary's argument that MSHA has adopted health and safety standards requiring the wearing of life vests (30 C.F.R. § 1710(h)), and requiring hazard training (30 C.F.R. § 48.32(a)), the Respondent asserts that these regulations apply only to surface coal mines and the surface work areas of underground coal mines and are inapplicable to the situation at bar.
In regard to the Secretary's reference to an OSHA instruction manual referencing MSHA's authority over the loading of coal into and out of barges, including associated piers and docks "when such transfer is integral to the extraction, preparation, or milling process", the Respondent states that in the instant case, even on the Ireland Dock, the loading of processed coal onto a barge is not essential to “the extraction, preparation, or milling process”. The Respondent states that after the processed coal is loaded onto the barge the coal belongs to the purchaser and is not further handled in any way. Further, while the preparation plant may on rare occasion direct that layers of different qualities of coal be dropped onto a barge, each layer of coal that is dropped from the conveyor onto the barge is finished, marketable, coal which does not undergo any further processing on the barge or at the Dock. The Respondent concludes that such a transfer is no way integral to the "extraction, preparation, or milling process" and the cited provision is inapplicable. With regard to the river portion of the Ireland Dock, where the decedent was last seen, no loading or unloading takes place and the Respondent concludes that the cited OHSA manual is completely irrelevant.
The Respondent disputes the Secretary's conclusion that the loading facility is a continuation of, and a fully integrated operation with the McElroy Mine and preparation plant. Conceding MSHA's jurisdiction over the IRLF, the Respondent points out that the Ireland Dock, and river portion of the Ireland Dock are more than 1 ½ miles from the Prep Plant and McElroy Mine and thus, not part of a continuous and integrated operation of the McElroy Mine.
The Respondent argues that the Ohio River and the ground under the Ireland Dock are not owned by the Respondent, are not part of the mine-permitted property and operate pursuant to U.S. Corps of Engineers permits. The Respondent does not own the barges tied off and in line to be loaded; the barges and tug boats that deliver coal on the loaded barges to customers are registered with the Coast Guard, not MSHA; and that the loaded coal no longer belongs to McElroy Coal Company.
The Respondent disputes the Secretary's reliance on the ALJ decisions in Jeppensen Gravel. 32 FMSHRC 1749, 1750 (Nov. 2010), and Mineral Coal Sales. Inc. 7 FMSHRC 615, 620-621 (May 1985), in support of her "fully integrated contiguous mining operation" arguments. The Respondent points out that the cited cases involved equipment and mining operations taking place at a single operator owned mine site viewed as a "collective whole", and are distinguishable from the facts in the instant case involving a fatality not on mine property that took place on an empty barge on a public waterway more than 1 ½ miles from a preparation plant that are not part of a "single site that must be viewed as a collective whole". The Respondent suggests that the cited cases are not only distinguishable, and in fact support its position that a cited incident must occur on mine property.
The Respondent disputes the Secretary's assertion that her jurisdictional position "has been consistently applied by MSHA since at least 2000", and states that to its knowledge, the last time an analogous situation occurred on a barge on the river portion of the Ireland Dock was in the year 2000, and that MSHA treated that fatality differently, as fully discussed in its motion for summary decision. That incident (Anderson) concerned a deckhand working on a moveable barge who was fatally struck by lightning. In that matter, the Coast Guard assumed jurisdiction and MSHA declined to assume jurisdiction and issued no citations.
The Respondent argues that in the instant case, the death of the decedent, Mark McIntyre, occurred in 2008, under very similar conditions in that he was also working on a moveable barge in the Ohio River tied off and in line to be loaded at the Ireland Dock, when he fell into the river and drowned. Mr. McIntyre, like Mr. Anderson before him, was performing the duties of a deckhand at the time of his death. (Stip. No. 17; the duties of a deckhand include inspecting barges for water). The Respondent points out that unlike the death of Mr. Anderson, and despite no interim change in the law on jurisdiction, MSHA has issued citations and attempted to assert jurisdiction over the McIntyre fatality. The Respondent argues that as in the case of Mr. Anderson, however, jurisdiction belongs to the Coast Guard or OSHA, not to MSHA, and maintains there is no legitimate basis to treat the two accidents differently.
The Respondent concludes that if deckhand duties, such as checking barges for excess water, automatically give rise to MSHA jurisdiction, then MSHA's jurisdiction, again, would extend to "unfathomable lengths". In other words, MSHA's jurisdiction would follow the deckhand down the Ohio River and, ultimately, to the final delivery to the customer because deckhands (and others) will check for and work to prevent excess water all along the way. The Respondent asserts that such an extension of jurisdiction would contradict the Secretary's own stipulation as the Secretary has admitted that MSHA does not exercise jurisdiction over coal that is unloaded from the barges (Stip. No. 20).
The Secretary filed a reply brief and argues that the Respondent admits that the Loading Facility is covered by the Mine Act but attempts to isolate the dock area where the fatality occurred to create jurisdiction coverage issues based on assertions that the dock area does not meet the definition of a mine, that there are no MSHA regulations addressing dock areas, and that an unrelated fatality in 2000 which was not investigated by MSHA precludes MSHA's exercise of jurisdiction over the fatality. The Secretary concludes that Respondent's arguments have no factual or legal merit.
The Secretary addresses the Respondent's arguments that the dock area is not covered because (1) it does not own the barges which the Secretary states coal preparation takes place; (2) the dock area is not bonded or permitted as a mine by the State of West Virginia, and is therefore not a mine under the Mine Act; and (3) the layer loading carried out by the Respondent does not constitute mixing of coal covered by the Mine Act.
The Secretary concludes that Mine Act coverage is not dependent on ownership of the barges into which coal is loaded, and that the relevant case law holds the opposite, citing Harper Mining Company, supra, finding Mine Act coverage based on the loading of coal into railroad cars despite the fact that the cars were owned by a third party, and Marion Docks, Inc. supra finding MSHA coverage for an entity that mixed, stored, and loaded coal onto barges from a dock, despite the fact that the barges were owned by a third party. The Secretary further argues that the fatal injury matrix relied on by the Respondent specifically provides that the property where a fatality occurs need not be owned by the mine because it clearly allows chargeability on the basis of the death occurring on mine property or resulting from activity on mine property.
The Secretary further cites Hanna v. Director, OWCP 860 F.2d 88, 89, 93 (3rd Cir. 1988), holding the loading of coal from a preparation plant into barges in the Monongahela River, a river which was not owned by the operator, was a necessary step in the preparation of coal and therefore the Claimant was a miner and coverage under the Act was established.
The Secretary rejects the Respondent's argument that the facility loading dock is not subject to Mine Act coverage because it is not a bonded or permitted coal mine by the state of West Virginia, and points out that the Respondent has not cited any statutory authority or case law holding that the definition of a coal mine for the purposes of the State of West Virginia's permit or bonding requirements is relevant to the court's determination whether or not the dock area of the Loading Facility is a "mine" within the meaning of the Mine Act.
The Secretary finds it appropriate to look to the Mine Act definition of a "mine" and the Court's interpretation of that definition, citing Cyprus Industrial Mineral Corp. 1 FMSHRC 2069, 2081 (ALJ 1980). In that case, the ALJ held that imminent danger is defined differently under state law than under the Mine Act, and the fact that the hazard did not constitute an imminent danger under state law has no bearing on the determination as to whether the hazard is an imminent danger under the Mine Act. Accordingly, the Secretary concludes that the Respondent's reliance on the lack of state bonding and permitting of the dock area is misplaced.
The Secretary argues that in addition to Mine Act coverage of the dock, because it is a fully integrated part of the facility which is engaged in the work of preparing coal, coverage also attaches because the Respondent engages in layer loading of coal by pouring prepared coal from different sources in horizontal layers directly into barges. The Secretary states that the Respondent admits that it engages in layer loading by pouring coal of one quality directly into a barge tethered to the dock and then filling the rest of the barge with coal of a different quality by pouring the second quality of coal directly into the barge (Stip. No. 83).
The Secretary concludes that the Respondent engages in layer loading in order to meet customer specifications, and cites Kinder Morgan Operating. L.P. v. Chao 78 Fed. App’x. 462, 2003 WL 22360971 (6th Cir.), affirming 23 MHRC 1288 (2001), adopting the Commission's holding that such layer loading, at a marine loading facility, constitutes "mixing or blending" of coal, and when done to meet specifications, qualifies as the work of preparing coal. The Secretary concludes that, consistent with this decision, the Respondent's layer loading for the purpose of meeting customer specifications is also coal preparation sufficient to support a finding of Mine Act coverage.
The Secretary includes an argument denying the Respondent's assertion that no Part 77, MSHA regulations apply to the Loading Facility, and believes the Respondent has a "fundamental misunderstanding'' of how Mine Act coverage is determined. The Secretary states that Mine Act coverage is based on a two-part inquiry: 1) an inquiry into whether the operation performs one or more of the work activities listed in Section 3(1) of the Act, and 2) an inquiry into the nature of the operation performing such activities, citing Oliver M. Elam. Jr. Co., 4 FMSHRC at 7.
The Secretary further argues that the Commission and the 6th Circuit have found that Part 77 applies to a loading facility similar to the dock area at Respondent's Loading Facility, citing Kinder Morgan. 2003 WL 22360971 at *3, adopting 23 FMSHRC at 1292. The Secretary thus concludes that the Respondent's argument that the Loading Facility is not covered by MSHA's regulations and the Mine Act is both legally and factually incorrect. However, I note that the Respondent does not dispute Mine Act or MSHA jurisdiction over the facility that it believes does not include the Dock, and the river portion of the dock, two areas that the Secretary has opted to ignore, and does not recognize, as separate non-MSHA regulated areas of an overall integrated surface mining operation.
The Secretary argues that any determination that a fatality is not chargeable to the mining industry pursuant to MSHA's matrix guidelines is not a determination that a mine is not covered by the Mine Act because the matrix lists multiple reasons for determining that a death is not chargeable to the mining industry, including deaths on mine property of unauthorized persons that do not require Mine Act coverage determinations.
The Secretary concludes that the fact that MSHA decided the prior unrelated fatality was not chargeable to the mining industry in no way indicates that all deaths on the dock area of the Loading Facility cannot be chargeable to the mining industry or that the dock area is not a Mine Act covered mine.
The Secretary points out that at the time of his death, Mr. McIntyre was engaged in a task that was integral to mining, and that he died while he was in the process of checking unloaded barges tethered to the dock area for excess water (Stip. No. 91, 94). The barges were being checked for excess water due to customer complaints about the water in the barges (Stip. No. 91), and Mr. McIntyre was ensuring that the coal met market specifications. The Secretary states this in contrast to the prior fatality where the victim died while trying to tether an arriving barge to the dock area (Stip. Nos. 108, 109), and his death was not related to the process of preparing coal to meet market specifications and, therefore, was not mining related. The Secretary asserts that in the present matter, she cannot be estopped from asserting Mine Act coverage and carrying out her statutory enforcement responsibilities simply because she found a prior, unrelated death not chargeable to the mining industry, and points out that MSHA has continuously inspected the Loading Facility since at least 2000 without objection by the Respondent.
FINDINGS AND CONCLUSIONS
The Respondent's coal loading facility located on the Ohio River operates under MSHA Identification No. 46-01438, and it does not mine or produce coal. The McElroy preparation plant, located 1.5 miles from the load-out facility is a subsidiary of Consol Energy, Inc., and operates under a different MSHA Identification No. 46-01437.
The preparation plant processes coal that it receives from the McElroy Mining Company, also a Consol Energy subsidiary, to customer specifications. The processed coal is transported to the loading facility via conveyor belts, and it is ultimately loaded onto barges at the load-out dock for shipment to customers.
The load-out facility geographic areas that frame the jurisdictional dispute are described by Stipulation. Nos. 4, 10, 16, and noted on the map attached as Exhibit "A". The map identifies the yellow shaded area as the loading facility; the shaded blue area as the dock; and the shaded purple area as the river portion of the dock.
The Respondent concedes that the operational activities taking place at the loading facility area designated and shaded in yellow on the map are related to Mine Act activities subject to MSHA's enforcement jurisdiction.
The Secretary's position, as argued in her briefs, is that the entire area encompassed by the three geographical locations identified on the map as the Loading Facility, Dock, and river portion of the Dock, is an inseparable and integrated operation, starting with and associated with the processing of coal that takes place at the McElroy preparation plant and the transfer and loading of the processed coal to the loading facility.
Although the principal purpose of the loading facility is the loading of processed coal on barges for shipment to customers, and notwithstanding the Secretary's assertion that the three areas described by the Respondent must be considered as one totally integrated operation, I find it appropriate to consider the particular work activities that were taking place at each of those areas in order to determine whether or not they fell within the activities stated in Section 3(1) of the Mine Act.
The Secretary's argument that MSHA has continuously inspected the loading facility since at least 2000, without objection by the Respondent must be considered in context. The parties stipulated that since the year 2000, MSHA has inspected the facility on a bi-annual basis (Stip. No. 105). Although the areas subject to these inspection include the "loading dock" and "barge load-out", it is not clear that the empty moveable barges located on the river are included in those inspections. The physical structures, buildings, and equipment that describe the IRLF location do not include the river portion of the dock.
Although the Secretary cited 47 citations and one order that were issued between 2000 and 2011 "directly to the loading facility", the details regarding these citations are not part of the record and there is no evidence they were issued at the river portion of the dock or to any empty moveable barge located on the river portion of the dock. Indeed, the parties agreed that a review of MSHA's records reflects no record of any inspector writing a citation or order for any hazard involving the river portion of the dock. Two of the citations in Docket No. WEVA 2010-176, were issued at the loading dock.
Under all of the aforesaid circumstances, the Secretary's assertions and suggestions that the aforementioned citations were issued at the river portion of the dock ARE REJECTED. Indeed, the Secretary agreed that none of the prior citations were issued for hazards on the river portion of the dock.
The parties stipulated that there is at least one coal load-out facility in Marietta, Ohio, over which MSHA does not exercise jurisdiction (Stip. No. 9). The stipulation is based on the testimony of Mr. Joseph Facello, who I assume is an MSHA inspector. Mr. Facello was deposed and an excerpt was filed in response to my request (Tr. 97-105).
In response to a question requesting Mr. Facello to identify any handling of coal in any form or fashion, where MSHA does not assert jurisdiction, Mr. Facello cited a coal load-out facility on the river in Marietta, Ohio, that included the crushing and loading of coal before it is loaded into the barge. He explained that during his initial visit to that site, MSHA was denied entry in order to conduct an inspection, and that upon his return the next day, he issued an order for not allowing MSHA on the property, and no further action was taken pending further instructions from his Morgantown, West Virginia. He left the premises after receiving the following information (Tr. 99):
When I received a call from Morgantown, and Morgantown had, from
what I understand, consulted with the solicitor's office, and this guy
apparently had documentation that he was not crushing the coal for the
customer, he was crushing the coal because the barge owner did not
want big pieces of coal flopping down in his barge. So, I thought it
was bogus, myself, but, you know, I have a boss like everybody else.
They told me, "No, we don't inspect these guys," so we left.
The prior accident of July 30, 2000, involved deck hand William Anderson, who was on an empty moveable barge on the river portion of the dock that was tied off at the timberhead of an adjacent moveable barge. Mr. Anderson was preparing to run a crab line that ran from a winch on a fixed barge at the dock to the moveable barge in order to pull that barge into position for loading. The line had not yet been affixed to the moveable barge, and due to heavy rain, Mr. Anderson started walking south on a platform on the moveable barge when he was fatally struck by lightning and fell forward onto the barge.
Mr. Anderson's death was investigated by the Coast Guard, who assumed jurisdiction over the fatality. MSHA's rationale in declining to investigate that incident is not fully explained. Stipulation No. 112 simply states that MSHA's District 3 Manager took the position that "Based upon the Coast Guard's investigation, the decision is to treat it as one of their cases. We will not count it. Therefore, nonchargeable."
MSHA's Fatal Injury Guideline Matrix (Exhibit A, to the Respondent's initial motion for summary decision), provides that incidents resulting in a death that did not occur on mine property or result from activity on mine property, or a death due to natural causes, are not chargeable to the mining industry. However, a death involving mine related work activities performed by the deceased or a death caused by mining activities or equipment are chargeable to the mining industry.
The Respondent cites the Matrix guidelines in support of its argument and inference that since the accident in this case did not occur on mine property and did not result from activity on mine property, it was therefore not chargeable to the Respondent. The Respondent's reliance on the Matrix prompted a response by the Secretary that any determination that a fatality is not chargeable to the mining industry pursuant to the Matrix guidelines is not a determination that a mine is not covered by the Mine Act because multiple non-chargeable reasons are listed, including deaths on mine property of unauthorized persons that do not require Mine Act coverage determinations.
I have no basis for determining whether MSHA's decision to decline jurisdiction to investigate the Anderson accident was based on the Matrix guidelines. If it was, I respectfully suggest that future decisions in this regard be fully stated and explained. The only reason of record in this case for declining MSHA jurisdiction is that the Coast Guard investigated the matter, and decided to treat it as one of their cases.
The December 29, 2008 accident in the instant case concerned the preparation plant foreman, Mark McIntyre, who was sent by the plant foreman to check the moveable empty barges on the river portion of the dock for excess water. The barges that are eventually loaded with coal and used to transport the coal are owned by various shipping companies. Once a barge moored at the dock is loaded at the dock, it is transported on the river to the consumer who owns the coal. At the time of the accident, Mr. McIntyre was checking the barges for water due to heavy rain and recent customer complaints about water in the barges (Stip. No. 91). Stipulation No. 73 reflects that barge examinations may include checking the barge for debris and pumping water from the barge.
The facts reflect that Mr. McIntyre was last seen between 9:25 and 9:30 p.m., on one of the moveable empty barges waiting in line monitoring the amount of water in the barge that was tied off at the timber head of the adjacent moveable barge. There is no evidence it was secured at the dock for loading. The investigative assumption was that he was standing on the moveable barge when he fell off into the Ohio River and drowned. His body was found the next morning at 2:35 a.m., downstream from the river portion of the dock under a partially loaded barge.
What separates the parties in this case with respect to the two accidents is the Secretary's position that Mr. McIntyre was performing a mine related task when checking a barge for water to ensure the coal met market specifications, and that Mr. Alexander's task in attempting to tether a barge to the dock was not related to the process of preparing coal to meet market specifications, and was therefore not mine related. The Respondent's position is that the McIntyre fatality is comparable to the Anderson fatality, where under similar circumstances, the Coast Guard, and not MSHA, exercised jurisdiction.
The Secretary's arguments that Stipulation Nos. 91 and 94, establish that Mr. McIntyre's death was a result of his role in preparing the coal in that he was examining the barge at the dock in order to assist the loading facility in meeting customer specifications are not totally accurate.
Stipulation No. 91 states that Mr. McIntyre was instructed to check the barges for excess water, due to heavy rain and recent complaints about water in the barges. It does not state that he did so to ensure meeting customer specifications.
Stipulation No. 94 states that when he was last seen, Mr. McIntyre was monitoring the amount of water in empty barges on the river portion of the dock. Stipulation No. 10 identifies the dock as the shaded blue area on the map (Exhibit A) that includes a fixed barge, a location adjacent to the river portion identified as the shaded purple area of the map. Stipulation No. 92 reflects that the barge that Mr. McIntyre was on when he was last seen was on the river portion and that the barge was in line to be eventually loaded (Stip. No. 94).
I find the Secretary's argument that the checking of an empty barge on the river for water to insure that coal is processed to meet market specifications is a mine-related activity subject to MSHA's enforcement jurisdiction, while the task of tethering a barge to a loading dock is not mine-related to be contradictory. Although the act of tethering a moveable barge to a fixed barge at the dock where the processed coal is finally loaded may not be directly related to insuring market specifications, I conclude and find that the task related to positioning the barge to the dock is mine related to the loading of processed coal. Accordingly, I find that the two accidents in question are comparable.
With regard to the aforementioned Marietta coal-loading facility that is not inspected by MSHA, I take note of the fact that notwithstanding the observations of the inspector that coal preparation was taking place by crushing and sizing, and then conveyed by a belt to the dock for loading on a barge similar to the coal preparation at the Respondent's IRLF, MSHA declined jurisdiction. The inspector stated that he was informed that the coal was crushed to a smaller size to comply with the objections of the barge owner who did not want large pieces of coal falling
into its new barge. Under the circumstances, and in the absence of any further information, it would appear that the coal was processed to the specifications of the barge owner, and not the coal consumer customer, a rather bizarre and contradictory reason to decline enforcement jurisdiction.
Ireland River Dock
The parties stipulated that the dock is neither a surface coal mine or the surface work area of an underground coal mine. The dock includes a walkway to a fixed barge, the fixed barge, and the moveable barges onto which the completely processed coal is loaded. Two tow boats located at the dock which are owned by the Respondent are used to move and position barges at the dock, and they are registered to the Coast Guard.
The additional facilities at the dock include a control room for communicating with the McElroy preparation plant, a walkway to the loading dock, a storage building, a stand for a belt, several mooring cells, and electrical equipment. The purpose of the dock is to facilitate the loading of processed coal onto barges for delivery to customers. The two contested citations
issued in Docket No. WEVA 2010-176 for alleged violations of mechanical equipment guarding standard 30 C.F.R. § 77.400(a), were issued for allegedly failing to guard equipment located at the loading dock.
Although Stipulation No. 26 states that the Respondent owned the dock, it clarified this in its post-hearing brief and stated that the stipulation was intended to apply to the aforementioned equipment and platforms that it owns and that it does not own the real property on which the dock is located. Further, the parties stipulated that the dock was operating pursuant to a permit issued by the U.S. Army Corps of Engineers and that it was not bonded or permitted by the State of West Virginia as a coal mine.
I agree with the Secretary's arguments that the fact the dock is not bonded or permitted as a mine by the State of West Virginia is not relevant and unsupported by any statutory or case law, and the Respondent's argument is rejected. Further, I find that the Respondent's reliance on the fact that the cases cited by the Secretary in support of her jurisdiction concerned working activities that took place on mine property, are distinguishable from its activities that take place at the dock that it considers is not on any bonded, permitted, or property that it owns, and therefore support its position that no Secretarial jurisdiction attaches to property it does not own is likewise rejected.
I find that the fact that the Secretary has stipulated that the dock is not a surface coal mine or a surface area of an underground coal mine, does not Ipso Facto, divest the Secretary of jurisdiction, or conclusively establish the lack of dock jurisdiction. I conclude and find that the jurisdictional issues in these proceedings are determined by the definition of "coal or other mine" pursuant to Section 3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1), and the nature of the working activities that take place at the dock as described by Section 3(1), of the Mine Act, 30 U.S.C. § 302(1), as well as the operation performing such activities.
The Respondent maintains that the sole purpose of the dock operations, and the activities that take place there, are limited to the receipt of completely processed coal from the McElroy preparation plant, and the loading of the coal onto barges for delivery to customers who take title to the coal once it is loaded, and that no cleaning, sizing, drying, or crushing of coal occurs at the dock.
The operations that take place at the dock are covered by Stipulation Nos. 71 through 90. Instructions for the loading of the coal are communicated to the dock from the preparation plant. Other instructions communicated to the loader operator include the control of the flow of the coal and the monitoring of the coal analysis to ensure customer specifications, and ensuring the flow of coal into specific barges pursuant to customer specifications (Stip Nos. 71, 78 - 81).
Stipulation No. 83 states that up to approximately twice a year, the dock partially fills a barge with coal of one quality and then tops the barge off with coal of a different quality, and that this only occurs when analysis of the coal shows the specifications to be incorrect for a specific customer.
Stipulation No. 84 states that rarely, coal from Shoemaker Mine, another Consol Energy mine, was transported to the dock in barges to be topped off with coal from the McElroy preparation plant because the quality of Shoemaker coal was too poor to meet customer specifications.
In Kinder Morgan Operating. L.P. v. Chao 78 Fed. App’x. 462, 2003 WL 22360971 (6th Cir. 2003), the 6th Circuit adopted the Commission's holding at 23 FMSHRC 1288 (2001), that layer loading at a marine loading facility constitutes "mixing or blending" of coal, and when done to meet customer specifications, qualifies as the work of preparing coal (Emphasis added).
I take note of the following definition of "layer loading" found in the Dictionary of Mining. Mineral, and Related Terms. U.S. D.O.1.1968, which states in relevant part as follows:
...a procedure whereby the coal is placed in ... horizontal layers.
It owes its inception to the fact that coal as it comes from the mine is
not uniform in structure, chemical composition, water content, and
presence of dust. Layer loading is a simple and inexpensive method
for smoothing these irregularities... This results in a more uniform
product.
Based on the aforesaid stipulations, I conclude and find that the activities taking place at the dock, and in particular the layer loading process, constitutes "work of preparing coal" within the meaning of the Mine Act. Accordingly, I find that the Secretary's enforcement jurisdiction includes the dock where coal layer loading and topping off takes place before the finally processed coal is loaded and shipped to customers.
River Portion of the Ireland Dock
Docket No. WEVA 2010-1078. concerns a Section 104(a), Non - S & S Citation No. 6610555, issued on November 5, 2009, alleging a violation of 30 C.F.R. § 50.10, for not reporting the accident that occurred on December 29, 2008, within 15 minutes, and it was served to the Respondent pursuant to the facility Mine ID #46-01438.
The parties stipulated that the river portion of the dock is neither a surface coal mine or the surface work area of an underground mine. On December 29, 2008, the river portion of the dock was operating pursuant to a U.S. Army Corps of Engineers issued permit. They further stipulated that no breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, layer loading, or loading of coal takes place in the river portion of the dock.
I incorporate by reference my findings and conclusions related to the dock jurisdictional issue and find they are equally applicable to the river portion of the dock. Accordingly, I deem it appropriate to consider the work activities that take place at the movable barges located on the river in determining whether they fall within the definition of "coal or other mine" as found in the Mine Act.
The moveable barges are located on the Ohio River and they are vessels registered with the Coast Guard, and are assigned registration numbers. They are not registered by MSHA and are owned by various shipping companies. The moveable barges are brought in, loaded with coal from an overhanging conveyer that hangs over the dock, and shipped down river. The delivery of the coal is accomplished by tug boats registered with the Coast Guard and they are not owned by the Respondent.
MSHA does not exercise jurisdiction over any coal that is unloaded from the barges that are loaded at the loading facility. Beginning in the year 2000, MSHA found no record of any inspector issuing a citation or order to the Respondent over a hazard involving the river portion of the dock.
I conclude and find that the activities connected with the processing of coal at the preparation plant and the transfer of that coal over conveyors in excess of a mile from the plant to the dock where it is finally dumped on the barges at the dock end and at the dock and do not extend to the moveable barges on the river where no coal is processed or loaded. Stipulation No. 76 states that once the coal is loaded at the dock it is transported along the river to the ultimate consumer.
I take note of the fact that the Section 103(k) order that was issued on December 12, 2008, stating in part that Mr. McIntyre was on the barge checking for water, describes the area affected by the order as follows:
“Barge load out from the north end of the land barge extending to the three cells south of the load out, including the Quarto tug boat. The barges attached to the South cells will remain attached.” (Emphasis added)
Exhibit A, the map attached to the stipulations, reflects that the Quarto barge was clearly located on the river, and that the barge load-out was at the north end of the land barge that I assume was the fixed barge at the dock where the barges are finally loaded with completely processed coal ready to be shipped. Accordingly, it would appear that the location of the McIntyre accident was on the river where no coal is processed or loaded.
The inspection of the moveable barge by Mr. McIntyre at the time of the accident was prompted by recent rain and customer complaints about water in the barges. The focus of the Secretary's jurisdictional argument is based on a conclusion that any empty barge that may be inspected as the result of rain or customer complaints about water in a barge is inspected to ensure that the coal meets customer specifications.
The empty barge inspections described by Stipulation Nos. 17 and. 73 reflect that they are checked for water and debris, and the pumping of any excess water. Stipulation No. 77 reflects that weekly inspections of the beltlines and barge cargo boxes are conducted for the presence of any water or foreign materials.
The Secretary's reliance on Stipulation Nos. 91 and 94, that the inspections and pumping-of water from barges were specifically in response to customer complaints about the effect of water on the quality of coal is inaccurate. The stipulations do not include any such statements.
Significantly, none of the aforementioned stipulations reflect that the barge inspections were due to customer complaints concerning coal specifications. Although the McIntyre accident referred to a complaint about water in the barges due to a recent rain, the weekly inspections of the barge cargo boxes for water could just as well be routine maintenance and barge preparation inspections unconnected to any customer complaints relating to coal specifications.
I take note of the fact that Stipulation No. 83 reflects that the layer loading of coal at the dock occurs when analysis of the coal shows the specifications to be incorrect for a specific customer. Further, Stipulation No. 84 reflects that coal from the Shoemaker Mine is topped off at the dock because that coal was too poor to meet customer specifications. Accordingly, I cannot conclude that any inspections of the empty barges located on the river were done in response to any specific complaints related to any specific coal specifications related to the coal layering and topping off activities that do not take place on the empty barges awaiting on the river.
The assertions that the barge inspections were made to meet or assure customer specifications is found in the Secretary's post-hearing brief arguments supporting an expansive view of MSHA's jurisdiction over a barge on a navigable river where no coal processing or final loading of processed coal takes place, critical Mine Act activities establishing jurisdiction.
Although one may assume that the presence of water in a barge due to a rain is a condition that may or may not affect coal specifications that are based on such factors as British Thermal Units (BTU's), ash, sulphur, and moisture content, as noted in Stipulation No. 42, I cannot conclude that this assumption, ipso facto, provides a reasonably credible basis supporting MSHA's asserted enforcement jurisdiction, a claim that I find is a speculative and unsupported conclusion.
The Secretary's assertion that MSHA has adopted health and safety standards applicable to the activities conducted on barges and loading docks, i.e., 30 C.F.R. § 77.1710(h), requiring life jackets where there is a danger of falling into water, and 30 C.F.R. § 48.31(a), requiring hazard recognition and avoidance, must be taken in context. While it is clear that these standards apply to surface mines and underground mines, I nonetheless conclude and find that subsection (h) of Section 77.1710 is a generic standard requiring the use of life jackets or belts where there is danger from falling into water and that the hazard training section, 48.32(a), includes hazard recognition and avoidance of potential hazards associated with any event that poses a danger of falling into water. I further find that although these standards may, of may not apply to work activities at barges and loading docks, they do not standing alone, extend MSHA's jurisdiction to an empty moveable barge on the river unless it is established that such activities fall within the statutory jurisdictional definitions found in the Mine Act.
I find that the Secretary has not promulgated any safety or health standards or regulations dealing with moveable barges operating on navigable waterways. I further find that the Secretary's jurisdictional positions taken in the McIntyre and Anderson incidents, as well as her denial of jurisdiction related to the Marietta, Ohio, coal load-out facility, to be inconsistent.
Based on all of the aforesaid findings and conclusions, I conclude and find that the enforcement jurisdiction related to the moveable empty barges located on the Ohio River is logically and reasonably best suited for OSHA pursuant to its regulatory authority, or the U.S. Coast Guard, pursuant to its applicable maritime authority, and not with the Secretary (MSHA). Accordingly, the Respondent's Motion for Summary Decision with respect to the river portion of the facility IS GRANTED.
ORDER
Docket No. WEVA 2010-1078 IT IS ORDERED that Section 104(a), Non - S & S Citation No. 6610555, November 5, 2009, citing an alleged violation of 30 C.F.R. § 50.10, for not reporting the December 28, 2008, accident IS VACATED, and the proposed civil penalty assessment of $392.00 IS DISMISSED.
Docket No. WEVA 2010-940 concerning an alleged violation of an Order issued pursuant to Section 103(k), of the Mine Act for allegedly loading coal at the dock while the facility was subject to that Order remains for litigation.
Docket No. WEVA 2010-176 concerning two alleged violations at the loading dock, and a total civil penalty assessment of $276.00, remains to be litigated.
Docket No. WEVA 2010-631 concerning Section 104(a) Citation No. 6610556, issued on November 5, 2009, citing an alleged violation of training standard 30 C.F.R. § 48.31(a), and a proposed civil penalty assessment of $11,306.00, remains to be litigated.
/s/ George A. Koutras
George A. Koutras
Administrative Law Judge
Distribution:
Jessica Brown, Esq., Gayle Green, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1705 Independence Mall West, Suite 630 East, Philadelphia, PA 19106
David J. Hardy, Esq., Wm. Scott Wickling, Esq., Hardy Pence, PLLC, 500 Lee St. East, Suite 701, Charleston, WV 25301
pc