Agapito is a Colorado-based geological engineering and consulting company that provided various services and analyses to GRI between the years of 1995 and 2007. (Agapito Mot. for Summ. Decision at 8-9). During that 12-year period, Agapito personnel spent 27 days at the Crandall Canyon Mine. Id. at 22. During the years of 2006 and 2007, Agapito billed GRI for approximately 320 hours of work in relation to plans for mining pillars in the North and South Barrier sections, which are located in the Main West Barriers section. (Sec’y Mot. for Partial Summ. Decision at 10).

In 2006, Agapito provided GRI with its analysis of the potential for retreat or pillar mining in the North Barrier section of the Main West Barriers section. (Agapito Mot. for Summ. Decision at 10; Sec’y Mot. for Partial Summ. Decision at 6). GRI was mining “barrier pillars,” or the blocks of coal wedged between worked-out longwall panels and mains entries. The entire Main West Barriers section of the mine was also under deep cover, which made roof control engineering crucial. (Sec’y B. at 5). In a draft dated July 20, 2006, Agapito submitted to GRI that 60 by 72 feet would be the appropriate pillar dimensions for cover up to a depth of 2,200 feet for a period of time of less than one year. (Agapito Ex. A at F-1).

On August 9, 2006, Agapito sent an email to GRI detailing “preliminary analytical results” for the proposed retreat mining plan in the Main West Barriers section. (Sec’y Ex. C at 23). Agapito used computer modeling software to conclude that pillar mining in this section was viable. (Agapito Ex. A at G-1, G-2). Although Agapito’s contact at GRI planned to communicate the preliminary findings mentioned in the email to MSHA, he did not plan to share the report itself. (Agapito Mot. for Summ. Decision at 11; Sec’y Mot. for Partial Summ. Decision at 7). On December 1, 2006, an engineer and vice-president from Agapito visited the North Barrier section to observe and photograph roof, rib and floor conditions. (Agapito Mot. for Summ. Decision at 13; Sec’y Mot. for Partial Summ. Decision at 7).

Following its submission of the analysis concerning the retreat mining plan in the Main West Barriers section to GRI, Agapito continued to provide consulting services. On March 16, 2007, after a bump caused GRI to abandon the North Barrier section, two Agapito managers visited the abandoned section to make observations and take pictures. (Agapito Mot. for Summ. Decision at 15; Sec’y Mot. for Partial Summ. Decision at 8). In April, 2007, Agapito and GRI discussed plans to perform retreat mining in the South Barrier section and Agapito provided GRI with another technical evaluation of the proposed plans for retreat mining. (Agapito Mot. for Summ. Decision at 17; Sec’y Mot. for Partial Summ. Decision at 9). GRI, however, began mining before receiving Agapito’s report. (Agapito Mot. for Summ. Decision at 17).

In May 2007, GRI filed with MSHA a three-page proposed amendment to the roof control plan for the pillar mining of the South Barrier section. GRI referenced the report by Agapito without referring to Agapito by name. (Sec’y Ex. C at 71). This proposed plan was not identical to Agapito’s recommendations. (Agapito Mot. for Summ. Decision at 17-20).

On August 6, 2007, a series of pillar outbursts and collapses in the South Barrier section of the Main West Barriers section resulted in the deaths of six miners and led to the deaths of three rescue workers on August 16, 2007.

II. PARTIES’ ARGUMENTS

A. Secretary of Labor

The Secretary argues that the meaning of the term “operator” in the Act is unambiguous and is meant to be construed broadly. The court in Otis Elevator held that the definition of operator covers any independent contractor performing services at a mine. Otis Elevator Company, 921 F.2d 1285, 1289 (D.C. Cir. 1990). Relying on Otis, the commission found that “any independent contractor performing more than de minimis services at a mine” is an operator. Musser Engineering Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1268 (Oct. 2010).

Agapito’s internal documents show that it is clearly an independent contractor and therefore an operator under the Act. Before 2006, Agapito personnel visited the mine at least 19 times and generated at least 23 written reports for GRI’s Crandall Canyon Mine. Between 2006 and 2007, Agapito’s contacts with the mine became more extensive, including numerous communications between personnel of the two companies, two visits by Agapito personnel to the mine, and several technical analyses concerning roof and ground control provided to GRI by Agapito. In Musser, furthermore, the Commission found an independent contractor that had less extensive contact with a mine than Agapito to be an operator under the Act. Due to its extensive and sustained contacts with GRI, Agapito is an operator for the purposes of the Mine Act.

According to the Musser decision, the Mine Act does not require that work be performed on mine property to be considered work performed “at such mine.” The dictionary definition of the word “at” supports this reading as well. The Act refers to the location that will benefit from the services, not the physical location where the services were performed. An alternative interpretation would impair the Mine Act’s goals and lead to absurd results: Independent contractors performing the exact same services could be liable or not liable based upon their means of delivery, or contractors could forgo doing on-site inspections to avoid Mine Act jurisdiction.

Even if the Court were to hold that the Act’s definition of independent contractor requires that services be performed on mine property, the facts in this case would still support the conclusion that Agapito is an operator as defined by the Act. Before 2006, Agapito visited the mine at least 19 times, and between 2006 and 2007, Agapito worked at the mine on two occasions.

If, alternatively, the Act’s definition of operator is ambiguous, the Secretary’s definition of operator is reasonable based upon the Act’s plain meaning and should be given deference. The Secretary’s reading of the phrase “performing services at such mine” should also be given deference, as services that fundamentally impact mine safety are often performed away from the mine property.

Additionally, in her response to Agapito’s motion, the Secretary argues that the court should not consider the merits of Citation No. 7697010 at this time. The Secretary believes that much of Agapito’s motion focuses on facts and arguments that are irrelevant to the issue of jurisdiction. She believes that these portions of Agapito’s argument should not be considered or addressed by the court.

Based upon its extensive performance of services at the mine, Agapito meets the statutory definition of “operator.” The Secretary is therefore entitled to summary decision on this issue.

B. Agapito

Agapito argues that because the citation is not based upon services performed “at such mine,” the plain language of the Mine Act excludes Agapito from being defined as an “independent contractor.” The plain language of both the Act and MSHA’s regulation require physical presence to show that services are performed “at such mine” or “at a mine.” 30 U.S.C. § 802(d); 30 CFR § 45.2(c). The Act’s jurisdiction is not based upon a company’s connection to the extraction process. Interpreting the Act to give MSHA jurisdiction over contractors that did not perform their services at a mine would be an error.

Agapito did not perform services giving rise to the citation at the Crandall Canyon Mine. Agapito neither authored its reports nor conducted its modeling on the mine property. It did not even discuss the results of these efforts with GRI on mine property. Rather, Agapito performed all of its substantive work 150 miles away from the mine in Grand Junction, Colorado. The only physical contact between the mine and Agapito personnel was ad hoc, performed at the operator’s request, and not part of the contract. Under the plain meaning of the definition of “operator” in the Act, Agapito is not an independent contractor because Agapito did not perform services “at such mine.”

In addition, Agapito did not perform sufficient services at a mine through its incidental visits to be considered an operator under the Act. Congress did not intend for any presence at a mine to result in Mine Act jurisdiction when it drafted the Act. The overwhelming majority of courts, furthermore, have held that liability attaches under the Act only when the subject citations stem from services performed while on mine property. Based upon these precedents, in fact, even a contractor’s presence on mine property should not guarantee Mine Act jurisdiction. Musser is the only decision that does not follow this pattern.

Even if Agapito’s minimal actions of visiting and taking pictures at the mine constitute work performed at a mine, there was no nexus between Agapito’s conduct and the violation it was cited for. Applying Mine Act jurisdiction to Agapito as an “operator” distorts the Act’s plain meaning and runs contrary to the great weight of Commission and federal appellate precedent.

Musser does not apply to this case because section 3(d)’s language is unambiguous under controlling precedent. Musser is the only case on record to hold that work that was not performed at the actual mine location gives rise to independent contractor and therefore operator status. The Commission provided no discussion in its decision to extend MSHA’s jurisdiction in Musser despite the fact that the plain language and meaning of the Mine Act were unambiguous; therefore Musser should not apply.

The Secretary’s interpretation of the phrase “at such mine” should not be given deference because the courts in Joy Technologies and Otis Elevator found the phrase to be unambiguous. Joy Technologies Inc., 99 F.3d 991, 999-1000 (10th Cir. 1996); see also Otis Elevator Co., 921 F.2d at 1290. The Secretary’s interpretation can only be given deference in situations where a term or phrase in a statute is ambiguous. Agapito maintains that in both Joy Technologies and Otis Elevator, the courts found that services must be performed at the mine site to give rise to independent contractor liability. To the extent that this is inapposite to the ruling in Musser, Musser should be disregarded. Under the controlling precedent of the 10th and D.C. Circuit Courts of Appeal, the Secretary’s claim should be dismissed because Agapito’s services were not performed at the Crandall Canyon Mine.

Even if Musser applies, Agapito’s activities were insufficient to render it an independent contractor under the Act. The activities of the independent contractor in Musser were more extensive in time and more substantial in content than those of Agapito. Agapito’s services concerning pillar extraction in the Main West Barriers section, including the South Barrier section, occurred over a period of time shorter than a year, as opposed to Musser’s seven-year-long effort that included activities such as water sampling, field investigations, surveying and working on the permitting process. Also unlike Musser, Agapito did not involve itself in the governmental review process. Under the standard developed in Musser, Agapito is not an independent contractor.

The crucial distinction between Musser and this case is the extent to which the operators and MSHA relied upon the analysis of the consulting companies. Musser submitted an unaltered map directly to the state permitting agency and that same map was subsequently submitted to MSHA. The operator also conducted its mining according to that map. Conversely, Agapito did not submit its work to any agency and GRI did not directly include that work with any filings to any agency. MSHA and GRI altered and disregarded Agapito’s analysis when formulating a roof control plan, showing that Agapito’s services represented the transmission of ideas and nothing further. Ideas do not give rise to Mine Act jurisdiction.

There is also no connection between Agapito’s services and the tragic accidents that took place in August 2007. The lack of reliance on Agapito’s work shows this lack of causality. Most important, however, is the fact that the causes of the accidents were the institutional failures at MSHA and GRI and the criminally negligent mining practices of GRI that Agapito was not even aware of.

Under the test adopted by the Commission in Joy Technologies and Otis Elevator, Agapito does not face independent contractor liability. The Commission’s two part test in Otis Elevator considers the party’s (1) proximity to the extraction process and (2) the extent of its presence at the mine. See Otis Elevator Co., 11 FMSHRC 1896, 1902 (Oct. 1989). Since GRI disregarded Agapito’s analysis, Agapito does not satisfy the first factor and Agapito did not spend enough time at the mine to satisfy the second.

For the foregoing reasons, Agapito believes that it is not an independent contractor or an operator under the Mine Act, and that Citation No. 7697010 should be vacated for lack of jurisdiction.

III. DISCUSSION AND CONCLUSIONS OF LAW

Under the Mine Act, the term “operator” is defined as “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine.” 30 U.S.C. § 802(d). Although the Act does not provide a definition for independent contractor, MSHA regulations do, asserting that the term “means any person, partnership, and corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a mine.” 30 CFR § 45.2(c). The Commission has held that any independent contractor that performs “more than de minimis services at a mine” is considered an operator under § 802(d). Musser, 32 FMSHRC at 1268; See Northern Illinois Steel Co., 294 F.3d 844, 848 (7th Cir. 2002); Joy Technologies, 99 F.3d at 999-1000; Otis Elevator Co., 921 F.2d at 1290.

The Commission held in Musser, furthermore, that even services performed away from mine property are considered to be performed “at a mine” if those services relate to the mine. Musser, 32 FMSHRC at 1269. Although jurisdiction is a legal question, it is highly influenced by factual considerations; the “totality of work” performed upon the pertinent project, not just the work relating to the underlying citations, “must be considered on the jurisdiction issue.” Id.

I must consider the above law in light of the fact that the motions before me seek a summary decision. Commission Procedural Rule 67 sets forth the grounds for granting summary decision as follows:

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

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

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

29 C.F.R. § 2700.67(b). The Commission has long recognized that “summary decision is an extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981)). The Commission has also analogized Commission Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); See Also Energy West Mining Co., 16 FMSHRC at 1419 (citing Celotex Corp v. Cartrett, 477 U.S. 317,237 (1986).[1]

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

I deny Agapito’s Motion for Summary Decision, while simultaneously granting the Secretary’s Motion for Partial Summary Decision. There are no genuine issues of material fact concerning the issue of jurisdiction and the Secretary is entitled to summary decision as a matter of law. I find that Agapito is an independent contractor and therefore an operator as defined by the Mine Act and is subject to the jurisdiction of the Act. There remain, however, genuine issues of material fact concerning the merits of this case. With this decision I do not, therefore, decide any issues beyond that of basic jurisdiction. The Commission’s Musser decision is applicable to this case, as it is binding Commission precedent that I must follow.

Furthermore, Agapito’s assertion that Musser conflicts with both Otis Elevator and Joy Technologies is incorrect. In both Joy Technologies and Otis Elevator, the courts held that the meaning of the term “operator” was plain; although the entire phrase “any independent contractor . . . at a mine” was considered, the phrase was only considered to ascertain the plain meaning of the term “operator.” See Joy Technologies, 99 F.3d at 999; Otis Elevator, 921 F.2d at 1290. In neither case did the operator challenge the meaning of the phrase “at such mine” and therefore neither court specifically considered the phrase “at such mine” or “at a mine.”[2] See Id. Musser is an extension of the holdings in Otis Elevator and Joy Technologies; it clarifies rather than contradicts the holdings in those cases.

Using the rationale from the Musser decision, I hold that Agapito is an operator under the Act. First, Agapito was clearly a contractor that performed services for GRI. Agapito’s own records show that Agapito provided several analyses relating to retreat or pillar mining in the Main West Barriers section, and Agapito billed 320 hours of work to GRI for these services. (Ex G-A at 10). It is also worth noting that formulating an effective roof control plan is vital to protecting the health and safety of miners.

The main question before me, however, is whether Agapito’s services were performed “at such mine.” In Musser, the Commission held that “the words ‘at such mine’ are applicable if the services related to the mine site even if [the independent contractor] performed them somewhere else.” Musser, 32 FMSHRC at 1269. Agapito’s consulting services were intended to help formulate a roof control plan for pillar mining in the Main West Barriers section of the Crandall Canyon Mine. Clearly, these services were not intended to have an effect on Agapito’s offices in Grand Junction, Colorado; they were intended to affect the method by which coal was extracted at the Crandall Canyon Mine. Although the parties dispute how GRI used Agapito’s analyses, there is no dispute that the reports provided by Agapito pertained to the Crandall Canyon mine site and that Agapito intended those reports to influence the formation of the roof control plan of the Main West Barriers section of that mine. Also, the idea that contractors could forgo doing on-site inspections that are vital to both their analysis and their role in promoting mine safety to avoid Mine Act jurisdiction is clearly in opposition to the goal of protecting miners, which is “the primary purpose of the Mine Act.” Joy Technologies, 99 F.3d at 996. Agapito qualifies as an independent contractor performing services or construction at such mine and therefore is an operator as defined by the Mine Act.

I also find that Agapito performed sufficient work at the Crandall Canyon Mine to qualify as an operator. The Joy court held that “[a]lthough Congress may have been specifically concerned with contractors who are engaged in the extraction process and who have a continuing presence at a mine . . . section 3(d) by its terms is not limited to these contractors.” Joy Technologies, Inc., 99 F.3d at 999-1000 (internal citations omitted). Joy Technologies and Otis Elevator held that the meaning of section 802(d) was “broad, but its meaning is clear[;]” if a contractor sends a “representative onto mine property, who, in carrying out his job, performed services at the mine,” then that company “is subject to regulation as an ‘operator’ under the Mine Act.” Joy Technologies Inc., 99 F.2d at 1000; see Otis Elevator, 921 F.2d at 1290. Agapito did not have a regular presence at the Crandall Canyon mine site, but its own records show that its employees visited the mine twice between 2006 and 2007 to take pictures and examine the roof and ribs of the Main West Barriers section. Agapito sent its employees to the Crandall Canyon Mine and those employees, in carrying out their jobs, analyzed the roof conditions at the mine. While these visits were infrequent, they were taken for the vital purpose of helping GRI to formulate a roof control plan. The importance of an effective roof control plan to the health and safety of miners, which was illustrated by the accidents at Crandall Canyon, makes it difficult to argue that Agapito’s services were minor or de minimis, even if only a small portion of that work was done at the mine site.

Agapito’s argument that their visits to the mine were ad hoc and not part of their contract is an argument that the courts in Joy Technologies and Otis Elevator expressly denied. See Joy Technologies, 99 F.3d at 996. Furthermore, I reject Agapito’s argument that its services were “wholly conceptual in nature” and therefore not regulated by the Mine Act. That issue is intertwined with the merits of the case and there are genuine issues of material fact concerning Agapito’s role in the development of the roof control plan. In addition, Agapito’s situation is dissimilar from the operator in Paul because the Crandall Canyon Mine was in existence and was a site where mining took place. See Paul v. P.B.-K.B.B., Inc., 7 FMSHRC 1784, 1787-88 (Nov. 1985), aff'd, 812 F.2d 717, 720 (D.C. Cir. 1987); Musser, 32 FMSHRC at 1268.

Agapito argues that there is no connection between Agapito’s services and the accidents and that Agapito lacked sufficient control over its work to be liable. It contends that GRI ignored some of its key recommendations when it submitted its roof control plan to MSHA. As a result, Agapito argues that it cannot be held liable for the alleged violation. This issue relates to the merits of the case and not to the narrow issue of jurisdiction before me. The facts underlying these issues have been contested by the Secretary. (Sec’y Opp. at 11).

Construing the facts in the light most favorable to Agapito, I find that there are no material facts in dispute as to the contested jurisdictional issues and therefore the Secretary is entitled to partial summary decision as a matter of law. Agapito is an independent contractor and therefore an operator under the Act; Agapito is subject to the jurisdiction of the Act. Many of the arguments raised by Agapito relate to the merits of the case and cannot be resolved upon a motion for summary decision because genuine issues of material fact remain.

IV. ORDER

I hereby DENY Agapito’s Motion for Decision Judgment and GRANT the Secretary’s Motion for Partial Summary Decision.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Timothy Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, Colorado 80202

Derek Baxter, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-3939

Mark N. Savit, Esq., Christa L. Rock, Esq., Patton Boggs, LLP, 1801 California St, Suite 4900, Denver, CO 80202

/bjr

[1] Federal Rule of Civil Procedure 56(c)(A) states, in pertinent part, that a motion for summary judgment should be granted if “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” shows that there is no issue of material fact and the movant is entitled to summary decision as a matter of law. Fed. R. Civ. P. 5(c)(A).

[2] The decisions in Musser, Joy Technologies and Otis Elevator all rely upon the same basic tenet: that the term “operator” in the Mine Act is meant to be construed broadly. In fact, the courts in all three cases agree that Congress added the phrase “any independent contractor . . . at such mine” to the Act to expand the Act’s jurisdiction. Compare Musser, 32 FMSHRC at 1269 with Joy Technologies Inc., 99 F.3d at 999 and Otis Elevator, 921 F.2d at 1290. It would therefore be counterintuitive to claim that the failure of the courts in Joy Technologies and Otis Elevator to explain the meaning of “at a mine” or “at such mine” should serve to constrain the jurisdiction of the Act, especially when doing so would mean that “a mine owner performing the same work as an independent contractor would be covered, but the contractor would not.” Musser, 32 FMSHRC at 1269.