Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

 

November 18, 2011

 

 

ORDER DENYING DOUBLE BONUS’S MOTION FOR SUMMARY DECISION

  

            This case is before me upon the Notices of Contest of Double Bonus Coal Company (“Double Bonus”) and the Petitions of the Secretary of Labor for Assessment of Civil Penalty under section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815 (2006). Double Bonus has filed a Motion for Summary Decision seeking to have the citations vacated and the Secretary’s penalty petition denied in Docket No. WEVA 2010-1175.

 

            For the purposes of the instant Motion, the parties agree to the facts presented in MSHA’s Report of Investigation – Fatal Powered Haulage Accident – August 22, 2008 (Resp’t Ex. 1), Citation No. 8084154 (Resp’t Ex. 2), Citation No. 8084155 (Resp’t Ex. 3), Citation No. 8084156 (Resp’t Ex. 4), and the Affidavit of Patrick Graham – Safety Director for Mechel Bluestone (Resp’t Ex. 6). (See Sec’y Resp. 3 (asserting that Double Bonus’s attachments of these exhibits are statements that the material facts in those documents may be treated as true).)

 

            Double Bonus argues that the uncontested material facts in this case establish that it was not an operator of the mine haulage road involved in this case and that the road in question is not a “mine” under the Mine Act. The Secretary responds that her jurisdiction over the road is a moot point, as the citations in this matter involve conditions at Double Bonus’s mine site, not along the road. Based on the reasons set forth below, Double Bonus’s Motion is DENIED.

 

I. Issues

 

            The issues before me are as follows:

 

1.         Whether the Secretary needs to establish jurisdiction over the mine haulage road to charge Double Bonus with the citations at issue in this case.

 

2.         Whether Double Bonus is entitled to summary judgment because the record establishes that it is not an operator of the mine where the alleged violations occurred.

 

II. Factual Background

 

            The alleged violations in this case stem from a fatal accident involving truck driver Danny L. Jones that took place on the Pumpkin Patch Haul Road in Wyoming County, West Virginia. (Resp’t Ex. 1, at 1, 3–4.) The Pumpkin Patch Haul Road lies along a mine haulage route comprised of a series of roads connecting Double Bonus’s No. 65 mine (“Mine No. 65”) and the Keystone No. 1 Preparation Plant (“Keystone Prep Plant”). (Id. at 3.) The Pumpkin Patch Haul Road, as well as nearly all the other roads in the area, is maintained by M&P Services, a subsidiary of Bluestone Coal Corporation (“Bluestone”). (Id. at 6.) Bluestone is also the parent company of Double Bonus. (Resp’t Mot. 1.)

 

            Bluestone contracted with Appalachian Leasing, Inc. (“Appalachian Leasing”), to provide coal haulage services between Mine No. 65 and the Keystone Prep Plant. (Resp’t Ex. 1, at 2.) In turn, Appalachian subcontracted with B&L Trucking for coal haulage between Mine No. 65 and the Keystone Prep Plant. (Id.) Jones was an employee of B&L Trucking. (Id.)

 

            On the evening of August 22, 2008, Jones reported to B&L Trucking’s shop area and conducted a preoperational check of a coal haulage truck with assistance from truck driver Johnny Ball. (Resp’t Ex. 1. at 3.) After spending approximately two hours there, Jones and Ball each drove a truck to Mine No. 65. (Id.) After picking up their loads of coal, Jones and Ball headed toward the preparation plant via the mine haulage route, taking the Pumpkin Patch Haul Road at the haulage route’s intersection with County Route 6. (Id.) After cresting a hill, Jones’s truck veered left of center and struck a berm along the road. (Id.) Jones exited the truck as it continued along the berm, and the rear tandem wheels ran over him. (Id.) After traveling 400 feet along the berm, the truck left the roadway and hit the side of the hill. (Id.)

 

            Following the accident, the Secretary’s Mine Safety and Health Administration conducted an investigation. (Resp’t Ex. 1.) The Secretary subsequently issued five citations to Double Bonus alleging violations for Jones’s failure to receive hazard training, task training, and new miner training, as well as for Double Bonus’s failure to properly inspect the truck and for operation of the truck with safety defects. (Docket No. WEVA 2010-1175, Sec’y Ex. A.) The Secretary charged the gravity in each of these violations as “fatal” and “occurred.” (Id.)

 

III. Principles of Law

 

A.        Standard for Summary Decision

 

            Commission Rule 67 sets forth the guidelines for granting summary decision:

 

(b) A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows:

            (1) That there is no genuine issue as to any material fact; and

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

 

29 C.F.R. § 2700.67(b).

 

            The Commission “‘has long recognized that [] ‘summary decision is an extraordinary procedure,’’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which ‘the Supreme Court has indicated that summary judgment is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’’” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994)). In reviewing the record on summary judgment, the Court must evaluate the evidence in “‘the light most favorable to . . . the party opposing the motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). Any inferences “‘drawn from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

 

B.        Jurisdiction

 

            The Mine Act provides that “[e]ach coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator of such mine, and every miner in such mine shall be subject to the provisions of this chapter.” 30 U.S.C. § 803. Therefore, in order for the Secretary to establish jurisdiction under the Mine Act, she must prove that a company is an “operator” of a “coal or other mine.”

 

            1.         Definition of a Mine

 

            The Mine Act defines “coal or other mine” as:

 

(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, . . . or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities.

 

30 U.S.C. § 802(h)(1).

 

            Reviewing courts have consistently interpreted the Mine Act’s jurisdiction in light of the exhortation in its legislative history stating “that what is considered to be a mine and to be regulated under the Act be given the broadest possible interpretation, and it is the intent of this [Senate] Committee that doubts be resolved in favor of inclusion of a facility within the coverage of the Act.” S. Rep. No. 95-181, at 12 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3414. See, e.g., Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1554 (D.C. Cir. 1984) (concluding Mine Act’s legislative history supports Secretary’s broad interpretation of definition of a mine); Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 797 (4th Cir. 1981) (noting Mine Act’s “sweeping” definition of a mine supports Secretary’s interpretation of Mine Act jurisdiction). See also Calmat Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005) (interpreting Mine Act jurisdiction in light of language of legislative history).

 

            2.         Definition of Operator and Operator Liability

 

            An operator “means any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine.” 30 U.S.C. § 802(d). To be an operator, an entity must have “substantial involvement” in the operation of a mine. Berwind Natural Res. Corp., 21 FMSHRC 1284, 1293 (1999). Under the Mine Act, “an entity cannot be held liable unless it ‘operates, controls, or supervises’ the mine.” Sec’y of Labor v. Nat’l Cement Co. of Cal., 573 F.3d 788, 795 (D.C. Cir. 2009).

 

            It is well-established that a mine owner is strictly liable for violations that occur at its mine site. See Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 154–55 (D.C. Cir. 2006) (discussing circuit court precedent on mine owner-operator liability). Moreover, a mine owner may not simply “‘exonerate itself from its statutory responsibility for the safety and health of miners merely by establishing a private contractual relationship.’” Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 315 (4th Cir. 2008) (quoting approvingly Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116, 1120 (9th Cir. 1981)). Indeed, in Cyprus Industrial Minerals, the court explicitly rejected the operator’s contest of Mine Act liability for an independent contractor’s violation even though the contractor had complete control over the work done at the site. 664 F.2d at 1118–20. The court reasoned, in part, that operators ultimately exercise control over the entire mine site. Id. at 1119. As noted by the Fourth Circuit, “owner-operators possess ultimate authority over independent contractors—retaining, supervising, and even dismissing them, if necessary.” Speed Mining, 528 F.3d at 315.

 

            The Commission recently held an independent contractor liable for a violation committed by another independent contractor at a mine site, even though the contractors had no contractual relationship with one another. Ames Construction, Inc., Docket No. WEST 2009-693-M, 2011 WL 3794313 (FMSHRC July 25, 2011), appeal docketed, No. 11-1303 (D.C. Cir. Aug. 24, 2011). Specifically, Kennecott contracted with Ames Construction, Inc. (“Ames”), to build a tailings dam, pipe, and roadways at the Kennecott Tailings Facility near Magna, Utah. Id. at *1. Kennecott purchased pipes for the project, and Ames received delivery of them at the property. Id. An employee of Bob Orton Trucking, William Kay, brought a shipment of pipes to the facility, and during the course of unloading the pipes under the supervision of Ames’s employees, the pipes became loose and Kay was killed. Id. at *1–*2. Ames received a citation for failing to unload the pipes safely in accordance with 30 C.F.R. § 56.9201. Id. at *2.

 

            The Commission determined that, as a contractor hired to build structures for the mine site, Ames was an “operator.” Ames, 2011 WL 3794313, at *3. The Commission explained that analysis of liability under the Mine Act is “‘focus[ed] on the actual relationships between the parties, and is not confined to the terms of their contracts.’” Ames, 2011 WL 3794313, at *4 (quoting Joy Technologies, Inc., 17 FMSHRC 1303, 1306 (Aug. 1995), aff’d sub nom. Joy Technologies, Inc. v. Sec’y of Labor, 99 F.3d 991 (10th Cir. 1996)). Additionally, the Commission acknowledged the D.C. Circuit’s exhortation in National Cement that strict liability under the Mine Act means liability without fault but not “liability for things that occur outside one’s control or supervision.” Ames, 2011 WL 3794313, at *4 (quoting Nat’l Cement, 573 F.3d at 795). Noting Ames’s control over pipe deliveries at the site, the Commission reasoned that the lack of a contract between Ames and the trucking company was immaterial. Ames, 2011 WL 3794313, at *4. Based on this supervisory control, the Commission concluded that Ames was liable for failure to unload the pipes safely. Id. at *4–*6.

 

            Ames is not the only Commission decision holding an operator strictly liable for a violation committed by an independent contractor with which the operator has no direct contractual relationship. Another Commission decision, Bluestone Coal Corp., involved Bluestone’s operations at the Keystone No. 6 Strip Mine in McDowell County, West Virginia. 19 FMSHRC 1025, 1026 (June 1997). There, Bluestone had contracted with Blackstone Coal Company (“Blackstone”) to develop an underground coal mine on the property. Id. In turn, Blackstone subcontracted with Mullins Trucking Company (“Mullins”) to deliver coal to the Keystone Prep Plant. Id. In hauling coal from Blackstone’s mine to the preparation plant, one of Mullins’s drivers lost control of his vehicle and died in the ensuing accident. Id.

 

            The Administrative Law Judge found Bluestone liable for the driver’s failure to maintain control of the truck. Bluestone Coal Corp., 19 FMSHRC at 1027–28. On appeal, the Commission rejected Bluestone’s argument that it should not have been cited for this violation, reasoning that “[o]perators are liable without regard to fault for violations of the Mine Act and its standards. As a mine operator, Bluestone is strictly liable for all violations of the Act that occur at its mine, including those committed by its contractors’ employees.” Id. at 1032 (citations omitted).

 

IV. Conclusions of Law

 

A.        Mine Site Involved in Alleged Violations

 

            The accident giving rise to the alleged violations in this case occurred on the Pumpkin Patch Haul Road, which lies along the route connecting Mine No. 65 and the Keystone Prep Plant. Subsection (B) of the Mine Act’s definition of a “mine” concerns “private ways and roads appurtenant to such [extraction] area.” 30 U.S.C. § 802(h)(1)(B). In National Cement, the D.C. Circuit affirmed the Secretary’s interpretation of this provision, holding that an operator is responsible for the conditions of a private haulage road itself and for vehicles on the road under its control and covered by subsection (C) of the definition of a “mine” as “mining equipment.” 573 F.3d at 792.

 

            As noted by the Secretary (Sec’y Resp. 4), the citations in this case allege that Double Bonus allowed Jones to operate a coal haulage truck with numerous defects affecting safety, and that Jones had not received required training (Docket No. WEVA 2010-1175, Sec’y Ex. A). This case does not involve the Pumpkin Patch Haul Road but rather the haulage truck driving on it. Therefore, the Pumpkin Patch Haul Road’s status as a “mine” is irrelevant to the jurisdictional issue presented in this case. Cf. Jim Walter Res., Inc., 22 FMSHRC 21, 23–28 (Jan. 2000) (holding that an equipment supply shop that services coal mines, but is not located at any of the actual extraction sites, is a “mine”).

 

            As for whether the coal haulage activity between Mine No. 65 and the Keystone Prep Plant involved a “mine,” the Fourth Circuit has held that the work of delivering coal from a mine site to another location for processing falls under the Mine Act’s definition of a mine. United Energy Servs., Inc. v. FMSHRC, 35 F.3d 971, 974–75 (4th Cir. 1994). Cf. Calmat Co. of Ariz., 27 FMSHRC at 621–24 (holding that citation was properly issued to mine owner for independent contractor conduct in relation to haul truck used in mining operations that was located in area falling under MSHA and OSHA jurisdiction). The coal haulage truck operation between Mine No. 65 and the Keystone Prep Plant is the “mine” at issue in this case.

 

            Neither Double Bonus nor the Secretary seriously contends that the alleged violations in this matter do not involve the coal haulage activity between Mine No. 65 and the Keystone Prep Plant. The linchpin of the jurisdictional question presented by this case is not whether Double Bonus is an operator of the mine haulage road but, rather, whether Double Bonus is an operator of the coal haulage activity between Mine No. 65 and the Keystone Prep Plant.

 

B.        Double Bonus’s Status as an Operator

 

            For Double Bonus to be liable for the alleged violations at issue in this case, it must be an operator of the truck hauling activity originating from Mine No. 65. The common thread connecting the circuit court and Commission decisions on the parameters of an operator’s liability under the Mine Act is the determination that the operator retains some modicum of control over an independent contractor, notwithstanding differences in the operator’s status as an owner-operator or privity of contract. Hence, an owner-operator is liable for the actions of its independent contractors because it maintains control over the general mine site, as well as the selection of contractors. E.g., Speed Mining, 528 F.3d at 314–16 (restating precedent on owner-operator liability under the Mine Act); Cyprus Indus. Minerals, 664 F.2d at 1118–20 (describing owner-operator liability under the Mine Act). Even a non-owner operator may be liable for an independent contractor’s violation in the absence of a contractual relationship if it retains some control over the independent contractor. Ames, 2011 WL 3794313.

 

            Here, the record sheds little light on the nature of the relationship between Double Bonus and B&L Trucking, Jones’s employer and the company providing the truck. According to the stipulated facts, Bluestone contracted with Appalachian Leasing to provide coal haulage services between Mine No. 65 and the Keystone Prep Plant. Double Bonus, as a subsidiary of Bluestone, presumably benefitted from this arrangement, yet the record fails to elucidate the connections between Bluestone, Double Bonus, Appalachian Leasing, B&L Trucking, and M&P Services. Additionally, Double Bonus presumably retained at least some control over B&L Trucking’s operations while its trucks were at Mine No. 65. See Speed Mining, 528 F.3d at 315 (recognizing that multiple “operators” may be simultaneously present at a mine site). Nevertheless, the record before me is silent on this relationship as well, and it does not show whether Double Bonus is even the owner of Mine No. 65. Nevertheless, these factual questions do not foreclose the possibility that Double Bonus may be an operator of the mine involved in these alleged violations should more evidence be adduced resolving this issue.

 

            Responding to Double Bonus, the Secretary focuses on the nexus between B&L Trucking’s activities and Double Bonus at Mine No. 65. (Sec’y Resp. 2, 4.) Because Jones was present at Mine No. 65 without proper safety training and he operated his truck there, the Secretary asserts that she has established jurisdiction over Double Bonus. (Id.) However, the Secretary’s analysis commits a fatal error. She asserts that Appalachian and B&L Trucking are Double Bonus’s contactor and subcontractor, respectively, statements which contradict the record before me. (Sec’y Resp. 2.) This sort of direct contractual relationship would tend to support Double Bonus’s status as an operator of B&L Trucking’s activities, but that view of the facts is not supported by the sparse record before me.

 

            In turn, Double Bonus does not dispute the Secretary’s assertions concerning its operation of Mine No. 65 and B&L Trucking’s status as provider of coal haulage between the mine and the Keystone Prep Plant. More importantly, Double Bonus also does not address its relationships with the numerous corporate entities involved in this case. Not surprisingly, this oversight stems from its view that this case centers on the Pumpkin Patch Haul Road’s status as a “mine,” which is not germane to resolving the jurisdictional question posed by this case.

 

            The incomplete record before me does not address Double Bonus’s status as an operator responsible for alleged violations at this mine. Therefore, summary judgment must be denied.

 

V. Conclusion

 

            I conclude that the Secretary need not establish that the Pumpkin Patch Haul Road is a “mine” for Double Bonus to be subject to Mine Act jurisdiction for the citations at issue in this case. Because factual issues remain concerning Double Bonus’s status as an operator of the mine involved in this matter, I conclude that Double Bonus has failed to prove entitlement to summary decision under Commission Rule 67. Accordingly, Double Bonus’s Motion for Summary Decision is DENIED. The parties are hereby ORDERED to comply with the September 27, 2011, Notice of Hearing issued in this case.

 

 

 

                                                                                    /s/ Alan G. Paez

                                                                                    Alan G. Paez

                                                                                    Administrative Law Judge

Distribution:

 

Benjamin D. Chaykin, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247

 

Carol Ann Marunich, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Boulevard, Suite 310, Morgantown, WV 26501

 

Kelby Thomas Gray, Esq., Dinsmore & Shohl LLP, P.O. Box 11887, Charleston, WV 25339

 

James F. Bowman, P.O. Box 99, Midway, WV 25878

 

/jts