FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

U.S. CUSTOM HOUSE

721 19TH STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

June 15, 2011

AMENDED DECISION DENYING MOTION TO DISMISS

Before:                        Judge Miller

            This case is before me upon a petition for assessment of civil penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”). On January 5, 2009, Respondent filed a Motion to Dismiss the Civil Penalty Proceeding and asserted that MSHA lacked jurisdiction and had failed to state a claim. The issue before me is whether MSHA has jurisdiction over the Nome Screener, a mobile piece of screening equipment owned and operated by the Alaska Department of Transportation. For the reasons that follow, I find that MSHA has jurisdiction over the Nome Screener and I DENY the Respondent’s Motion to Dismiss.

            On July 14, 2008, MSHA inspector Michael Murray issued eleven separate citations regarding the Nome Screener, Mine ID 50-01741, owned and operated by the State of Alaska Department of Transportation (“AKDOT”). Inspector Murray issued the citations for a violation of 30 C.F.R. § 46.9(b)(5) for improperly completed safety training paperwork for eleven AKDOT employees. On July 22, 2008, Inspector Murray issued a second set of eleven citations when the mine failed to correct the condition originally cited.

            On December 5, 2008, the Secretary issued a Petition for Assessment of Civil Penalty to AKDOT regarding the July 14th citations. The Secretary proposed a $112.00 penalty for each improperly completed certificates, for a total proposed assessment of $1,232.00.

I. STATEMENT OF FACTS

            The affidavits and statement of facts submitted by the parties show little, if any, disagreement as to the facts of the case. AKDOT owns a portable screener, i.e., the Nome screener, which used to size sand and gravel for the Nome, Alaska airport. Resp. Supp. Mot. to Dismiss 2. During the winter, AKDOT spreads sand on the airport runway to prevent airplanes from sliding on ice and snow. Murray Declaration ¶ 5b. The screener separates raw beach sand into three types: (1) undersized ¼ inch minus aggregate, (2) midsized ¼-½ inch aggregate, and (3) oversized ½ inch plus aggregate. Id. at ¶ 5a-5c. AKDOT spreads the midsized sand on the airport runway and discards the undersized and oversized material that could be potentially hazardous to jet engines. Id.

            AKDOT operates the Nome Screener annually at various location for a three to four week period in order to stockpile enough sand for use in the winter. Oden Affidavit ¶ 3. In some instances, AKDOT transports the portable screener to one of two AKDOT owned ocean beach borrow pits. Murray Declaration ¶ 5d. Neither of the beach extraction points is registered with MSHA as a mine. Resp. Supp. Mot. to Dismiss 2. At these two locations, front-end loaders place unsorted sand into the screener and then load the processed mid-sized sand into trucks that then transport the material to the Nome airport. Murray Declaration ¶ 5d. On other occasions, trucks haul beach sand from the borrow pits to a warehouse yard at the Nome airport where the screener is used to size the sand. Id. at ¶ 5e. AKDOT stores the Nome screener at the Nome airport when it is not in use. Resp. Supp. Mot. to Dismiss at 2.

            In 2002, MSHA requested that AKDOT register the Nome Screener as a mine. Id. AKDOT complied and was subject to regular inspections by MSHA. Id. On July 14th, 2008, MSHA inspector Michael Murray conducted an inspection of the Nome Screener at the Nome Airport. Murray Declaration ¶ 2. The Nome Screener, along with a front end loader and several piles of sand, was located inside a barricaded area of the airport warehouse yard. Id. at ¶ 6. Inspector Murray noted that the annual training certificates had not been signed by the Safety Director in charge of health and safety training. Resp. Supp. Mot. to Dismiss 3. AKDOT had repeated the error on eleven separate training certificates. Inspector Murray issued separate citations for each certificate. Id.

            AKDOT’s Safety Director, Mike Oden, spoke with Inspector Murray by cell phone during the inspection and informed the inspector that he was in Fairbanks, Alaska and would correct the forms and replace the originals at that time. Oden Affidavit ¶¶ 9-10. A week later, when the forms remained uncorrected, Murray issued a second set of eleven citations for failure to abate the condition cited. Id. at ¶¶ 11-12. AKDOT was not operating the Nome Screener at the time of either citation and the screener was located at its usual storage location near the airport. Id. at ¶ 7.

II. SUMMARY OF THE PARTIES’ ARGUMENTS

            AKDOT contends that MSHA cannot assert jurisdiction over the Nome Screener because it is not a “mine” and, therefore, is not subject to MSHA regulation. Resp. Supp. Mot. to Dismiss 1-2. AKDOT concedes that, generally, MSHA can regulate mine equipment under Section 3(h)(1)(C) of the Mine Act. Id. at 3. However, AKDOT contends that there is no precedent for MSHA to assert jurisdiction over mobile equipment not associated with a registered mine. Id. at 4-5. While the screener itself has a mine ID, the locations where it is used do not. Id. at 2. AKDOT distinguishes the Nome Screener from those screeners and other equipment that are located at permanent extraction pits and are subject to MSHA jurisdiction. Id. at 4-5. AKDOT argues further that the Nome Screener is in essence a “scalping screen” that operates under the borrow pit exception of the MSHA Interagency Agreement. Id. at 5.

            The Secretary asserts several independent grounds for MSHA jurisdiction of the Nome Screener. Pet. Supp. Response 4. The Secretary contends that the beach sand extraction points are mines and not “borrow pits.” Id. By sizing the sand and using it as a traction control material, AKDOT performed “milling” operations and used the material for its “intrinsic qualities” rather than for bulk fill. Id. at 5. The Secretary argues that milling a material for its intrinsic qualities prevents an operator from designating an area as a “borrow pit” under the MSHA-OSHA Interagency Agreement. Id. at 6.

            The Secretary also argues MSHA has independent jurisdiction over the Nome Screener and that it qualifies as a “mine” standing alone. Id. at 7. The Secretary states that in 2002 the Respondent registered the Nome Screener as a mine with MSHA and has not raised a jurisdiction argument until many years later despite the fact that the screener has not changed. Id. The Secretary relies on two precedent cases in which Commission Judges held that MSHA retained jurisdiction over a piece of mobile equipment regardless of where the equipment was located. Id. at 7-8; Wallace Brothers, 16 FMSHRC 1889 (Aug. 1994) (ALJ); Fred Knobel, 15 FMSHRC 742, 744 (Apr.1993) (ALJ). The Secretary avers that MSHA retains jurisdiction over equipment even when it is not operating, unless the equipment is completely tagged out and decommissioned. Id. at 9.

III. PRINCIPLES OF LAW

            The Federal Mine Safety Act of 1977 defines a “mine” as “an area of land from which minerals are extracted in nonliquid form.” 30 U.S.C. § 802(h)(1). MSHA has the authority to regulate all equipment, structures, and personnel within a mine. Id. Further, MSHA has broad authority to make informed and reasonable jurisdictional determinations as, “Congress clearly intended that … jurisdictional doubts be resolved in favor of coverage by the Mine Act.” Watkins Eng’rs & Constructors, 24 FMSHRC 669, 675-676 (July 2002). However, in 1979 the MSHA-OSHA Interagency Agreement (the “Agreement”) designated borrow pits as exempt from MSHA regulation and defined borrow pits as:

an area of land where the overburden, consisting of unconsolidated rock glacial debris, or other earth material overlying bedrock is extracted from the surface. Extraction occurs on a one-time only basis or only intermittently as need occurs, for use as fill materials by the extracting party in the form in which it is extracted. No milling is involved, except for the use of a scalping screen to remove larger rocks, wood and trash. The material is used by the extracting party more for its bulk than is intrinsic qualities on land which is relatively near the borrow pit.

MSHA-OSHA Interagency Agreement, 44 Fed. Reg. 22827 (1979). Further, the Agreement defined “milling” to include “sizing,” i.e., the “process of separating particles of mixed sizes into groups of particles of all the same size, or into groups in which particles range between maximum and minimum size.” Id. In 1996, MSHA issued interpretive guidelines intended to clarify the definition of borrow pits:

Thus, if earth is being extracted from a pit and is used as fill material in basically the same form as it is extracted, the operation is considered to be a “borrow pit.” For example, if a landowner has a loader and uses bank run material to fill potholes in a road, low places in the yard, etc and no milling or processing is involved, except for the use of a scalping screen, the operation is a borrow pit. The scalping screen can be either portable or stationary and is used to remove large rocks, wood or trash. In addition whether the scalping is located where the material is dug, or whether the user of the material from the pit is the owner of the pit or a purchaser of the material from the pit, does not change the character of the operation, as long as it meets the other criteria.

I MSHA, US. Dep’t. Of Labor, Program Policy Manual, Section 4, I.4-3 (1996).

            Commission judges have previously considered dismissal motions based on claims that an operation is a “borrow pit” and not a mine. Those judges have consistently applied a strict interpretation of the term “borrow pit.” Kerr Enterprises., Inc, 26 FMSHRC 953, 957 (Dec. 2004) (ALJ); New York State Department of Transportation, 2 FMSHRC 1749, 1761 (July 1980) (ALJ). For instance, a state entity that extracts and screens sand for use as a traction control material in winter operates a mine and does not qualify for the “borrow pit” jurisdictional exception. New York State Department of Transportation, 2 FMSHRC at 1761. In New York Department of Transportation, the New York DOT owned and operated a shaker screen that only allowed material ¼ inch or less to pass. Id. at 1755. New York DOT stockpiled the sand at a gravel quarry for highway ice control during the winter. Id. The court held that sand was not being used as “fill” merely for its bulk. Id. at 1758-59. Instead, the court found that the New York DOT had used the shaker screen to select a particular size sand for its “intrinsic qualities” and therefore did not operate a “borrow pit” within the meaning of the MSHA-OSHA Interagency Agreement. Id. The court also held that using a screen to select 1-1/2" gravel constituted “milling.” Id. at 1761. This “milling” removed the NY DOT from the MSHA-OSHA Interagency Agreement definition of “borrow pits.” Id.

            MSHA has asserted jurisdiction over operators that employ a minimal “scalping screen” when the operator does not use the product for bulk fill on nearby sites. Kerr Enterprises, 26 FMSHRC at 957. In Kerr Enterprises, an operator used a scalping screen to remove wood debris from earthen material at an extraction pit. Id. at 954. The court noted that this minimum screening operation did technically meet the definition of a scalping screen as allowed for in section of the MSHA-OSHA Interagency Agreement addressing borrow pits. Id. at 957. However, the court held that the operator did not qualify for the borrow pit exception because the material was sold for use in a variety of purposes that were not bulk fill related. Id.

            Commission judges have consistently upheld MSHA regulation of individual pieces of equipment independent from the jurisdiction conferred by a separately named mine. Wallace Brothers, Inc., 16 FMSHRC at 1891 (holding portable crusher was subject to MSHA jurisdiction when it operated at various rock pits); Fred Knobel, 15 FMSHRC at 744 (holding that portable crusher used to crush rock on roadway projects not designated as mines was performing mining activities and, therefore, was subject to MSHA regulation). Further, “[e]quipment and facilities that are available for use by miners must be maintained in compliance with applicable safety standards, and are subject to inspections whether or not they are actually being used at the time.” Beylund Construction, Inc., 31 FMSHRC 1410, 1416 (Nov. 2009) (ALJ); see also Ideal Basic Ind., Cement Div. 3 FMSHRC 843 (Apr. 2001). Moreover, MSHA may inspect inactive equipment that is “not tagged out of operation and parked for repairs.” Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001).

IV. ANALYSIS

            The AKDOT Nome Screener is used to size ¼” to ½” sand particles. Only particles of this size are retained and used for traction control on runways because smaller or larger sand causes damage to airplanes using the runway. As such, AKDOT clearly uses the screener to “mill” or “size” the sand and operates no differently than any other sand and gravel operation that is subject to MSHA jurisdiction.

            AKDOT does not use the Nome Screener for the typical “borrow pit” purpose of providing bulk fill. AKDOT uses the Nome Screener to produce a material uniquely capable of providing traction control on icy pavement. Because AKDOT uses the sand for its “intrinsic qualities” rather than bulk fill, the Nome Screener is properly classified as a mine rather than a “borrow pit.”

            MSHA has authority to regulate the AKDOT Nome Screener as a mine because the Nome Screener mills earthen material in order to produce a particular sized sand. AKDOT uses the Nome Screener to generate sand for its intrinsic traction control qualities rather than for bulk fill. Thus, the Nome screener does not fall under OSHA “borrow pit” jurisdiction according to the MSHA-OSHA Interagency Agreement.

            MSHA has authority to assert jurisdiction over the Nome screener independently of a separately named mine. The Nome Screener is a mobile piece of equipment and apparently operates at two beach sand extraction points and the Nome airport yard. Due to its mobile nature, MSHA was justified in requesting that AKDOT register the screener as an independent mine. If the Commission accepted the Respondent’s argument that MSHA jurisdiction only exists within a mine attached to a physical parcel of land, AKDOT and other operators could avoid MSHA jurisdiction simply by moving equipment on and off designated mine parcels or relocating equipment to new extraction pits without notifying MSHA. Such an interpretation would thwart the safety purposes of the Act and prevent MSHA from fulfilling its obligation to ensure the safe operation of mining equipment.

            MSHA has authority to inspect and regulate the Nome Screener when it is not in active use. At the time of the inspection the Nome Screener was located at the Nome Airport yard. Inspector Murray observed piles of sand and a front-end loader at the site. Inspector Murray gathered statements from the Nome Airport Manager that indicated AKDOT transported sand to the airport yard and operated the Nome Screener at the airport yard. Respondent’s Motion to Dismiss and AKDOT Safety Director’s affidavit do not refute that AKDOT previously operated the Nome Screener at the airport yard. Respondent also does not contend that it had tagged out the Nome Screener or notified MSHA that it was no longer operating the screener as a mine. Although AKDOT was not operating the Nome Screener on the day of the inspection, the screener was available for use and positioned in a location where it regularly milled sand. Thus, MSHA properly asserted jurisdiction over a piece of mining equipment available for use.

V. ORDER

            In view of the above, the Nome Screener is subject to Mine Act jurisdiction and MSHA regulation. Consequently, the State of Alaska’s Department of Transportation’s Motion to Dismiss, and its subsequent Supplement, are DENIED.

Margaret A. Miller

Administrative Law Judge

Distribution: (U.S. First Class Mail)

Matthew L. Vadnal, Office of the Solicitor, U.S. Department of Labor, 1111 Third Ave., Suite 945, Seattle, WA 98101-3212

Sean P. Lynch, Assistant AG, State of Alaska DOT, Civil Division-Transportation Sec., P.O. Box 110300, Juneau, AK 99811