<DOC>
[DOCID: f:l9978.wais]

 
NORTHERN ILLINOIS STEEL SUPPLY
February 28, 2000
LAKE 99-78-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET, N.W., Room 6003

                  WASHINGTON, D. C. 20006-3868

                  Telephone No.:  202-653-5454
                  Telecopier No.: 202-653-5030


                        February 28, 2000

NORTHERN ILLINOIS STEEL        : CONTEST PROCEEDING
     SUPPLY,                   :
               Contestant      : Docket No. LAKE 99-78-RM
                               : Citation No. 7819416; 1/28/99
                v.             :
SECRETARY OF LABOR,            : Lemont Quarry & Mill
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       : Mine ID 11-01546
            Respondent         :
                               :
ECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       : Docket No. LAKE 99-120-M
               Petitioner      : A. C. No. 11-01546-05501 1 PR
          v.                   :
NORTHERN ILLINOIS STEEL        : Lemont Quarry & Mill
     SUPPLY,                   :
               Respondent      :

                            DECISION

Appearances: Theordore J. Tierney, Esq., Adriana I. Reyes-
             Villanueva, Esq., Vedder, Price, Kaufman &
             Kammholz, Chicago, Illinois, for Contestant;
             Christine M. Kassak, Esq., Office of the
             Solicitor, U. S. Department of Labor, Chicago, 
             Illinois; Gary Cook, Conference and Litigation 
             Representative, U. S. Department of Labor, Duluth, 
             Minnesota, for Respondent.

Before:      Judge Barbour

     These are contest and civil penalty proceedings arising
under section 105 of the Federal Mine Safety and Health Act of
1977 (30 U.S.C. � 815 (Mine Act or Act)).  They involve one
citation issued to Northern Illinois Steel Supply (NIS) at the
quarry owned and operated by Vulcan Materials (Vulcan).  When 
the citation was issued, an NIS employee was in the process of
unloading steel from the bed of an NIS truck.  The employee had
delivered the steel to the quarry pursuant to a contract between
NIS and Vulcan.  The employee was standing on top of the steel.
The employee was not tied off or otherwise secured against
falling.  The Secretary alleges the employee, and therefore NIS,
violated 30 C.F.R. � 56.15005, a mandatory safety standard for
surface metal and nonmetal mines requiring in part that "[s]afety
belts and lines be worn when persons work where there is danger
of falling".

     NIS contested the citation.  NIS argued it was not an
"independent contractor" within the meaning of the Act and
therefore was not an "operator".  In the associated civil penalty
proceeding the Secretary proposed the assessment of a civil
penalty of $113 for the alleged violation, and NIS again raised
its jurisdictional defense.  The cases were consolidated for
hearing and decision.  They were tried in Chicago, Illinois.
Counsels have filed helpful briefs.

                        THE CENTRAL ISSUE

     Section 104(a) of the Act (30 U.S.C. � 814(a)) requires 
that an inspector of the Secretary's Mine Safety and Health
Administration (MSHA) issue a citation whenever he or she
believes an "operator" has violated the Act or any mandatory
safety standard promulgated pursuant to the Act.  Section 3(d) 
of the Act defines "operator" as including "any independent
contractor performing services or construction at [a] mine" (30
U.S.C. �802(d)).  The cases turn upon the question of whether 
NIS was an "independent contractor" and thus was an "operator" 
as a result of its delivery and its unloading of steel at the 
quarry.

                          STIPULATIONS

     At the hearing the parties stipulated in part as follows:

          1.  The . . . judge has authority to hear and
     decide [the] proceeding[s].

          2.  At all times relevant to [the] proceedings,
     [NIS's] operations affect[ed]
     interstate commerce.

          3.  On January 28, 1999, [NIS] employed a truck
     driver to drive a flatbed truck with a load of prime
     domestic steel to Vulcan['s] . . . Lemont Quarry . . .
     in Romeoville, Illinois.

          4.  Citation [No.] 7819416 . . . was properly
     served.

          5.  From January 1, 1998 through December 31,
     1998, [NIS] worked [68] hours (in approximately 20 to
     30 minutes of time) for each presence at the mine.

          6. [NIS] has no history of previous violations.

          7.  [NIS] employs 41 people at all of its
     facilities.

          8. [The] Lemont Quarry is a mine under MSHA
     jurisdiction.

          9.  The . . . [q]uarry mines limestone.

          10.  On January 28, 1999, NIS either owned or
     leased the flatbed truck mentioned in Citation No.
     7819416.

          11.  On January 28, 1999, [NIS] did not engage in
     construction at the Lemont Quarry.

          12.  NIS sold prime domestic steel products to the
     Lemont Quarry.

          13.  On January 28, 1999, the truck driver
     identified in Citation No. 781941 drove to the . . .
     [q]uarry and while there, released the restraints on
     the flatbed truck holding the steel.

          14.  The payment of the $113 assessed penalty will
     not affect [NIS's] ability to continue in business (Tr.
     9-11, see Tr. 111-112; see also Joint Exh. 1).

     The parties also stipulated that operations at the quarry
affected interstate commerce
(Tr. 111-112).

                            THE FACTS

        The Quarry And The Delivery Of Steel To The Quarry

               At the quarry limestone is extracted, crushed, and
stockpiled.  The processed stone, which is sold by Vulcan, is
trucked away by independent haulers.  Much of the stone is used
in road construction.

     Terry Croxford, who testified on behalf of the Secretary, is
an  employee  of  Vulcan.  Croxford manages construction projects
for the company (Tr.  41).   As  the  manager of construction, he
plans  and  oversees  the  projects.   He  orders  materials  and
equipment needed for the projects.  He assigns  miners  to do the
work (Tr. 44).

     Many of the projects require the use of structural steel in
the form of beams, bars, plates, and angles.  (Angles are used
most often for structural support.)  Vulcan purchases the steel
from NIS and has done so since either late 1997 or early 1998
(Tr. 126).  Depending upon the size of a project, the company may
purchase the steel from one to two times a week.

     The steel is shipped from the NIS plant to the quarry on
flatbed trucks.  The trucks are owned or leased by NIS, and the
truck drivers are NIS employees.  Most of the trucks used by NIS
are not equipped with hoists for unloading the steel.  Therefore,
once the trucks reach the delivery point at the mine, they are
unloaded using Vulcan-owned and operated equipment.

     At the NIS plant, steel that is put on a delivery truck is
secured to the truck bed by wire ropes or metal chains.  Before
the truck leaves the plant, the ropes or chains are tightened
with a winch-like device.  Once the load is secured, it is not
touched until it is unloaded at the quarry.

     The truck leaves the plant and travels on public roads until
it reaches the quarry access road.  (Vulcan shares this road with
some of its contiguous neighbors.)  The truck turns onto the
access road.  The truck proceeds down the road toward the point
where the steel is to be delivered (Tr. 62).  It is approximately
one half mile from the beginning of mine property to the active
areas of the mine (Tr. 63).  The delivery point is usually near
the project where the steel is to be used, and the truck driver
usually backs the truck into the area where the truck is unloaded
(Tr. 90).  In general, Vulcan employees decide where and when it
is safe to unload (Tr. 91).

     Most often the equipment used to unload the steel consists
of a crane with a hoist, although occasionally a fork lift or a
loader is used.  When the steel is lifted by a crane, a hook is
attached to the crane's metal hoist line.  The wire ropes or
chains securing the load to the bed of the truck are loosened and
removed.  The crane operator lowers the hook, and the hook is
inserted into a metal sling that surrounds the load.  The crane
operator raises the hoist line and hook, lifts the load, swings
the load away from the flatbed truck, and lowers it to the ground
or to a waiting Vulcan vehicle.

     Up to and including the time the subject citation was
issued, the NIS truck driver usually helped with the loading
process by unbinding or "unlocking" the restraints on the load
(Tr. 93).  On "rare occasions" the driver also guided the hook
into the lifting chain that surrounded the load, an act described
as "rigging" the load (Tr. 75, 93).  Croxford estimated the
driver rigged the load approximately 10% to 15% of the time (Tr.
93).[1]

             Events Surrounding Citation No. 7819416

     On the morning of January 28, 1999, Denis Libertoski, an
MSHA inspector, arrived at the quarry to conduct his first regular 
inspection of the site. Around 8:15 a.m., as he approached the 
maintenance shop, he saw an NIS truck.  It was parked about 100 
feet in front of the shop (Tr. 154). A load of steel was on the 
bed of the truck. The load consisted of H-beams and I-beams.  
Also, it may have included angles (Tr. 161). The steel was going 
to be used in building a catwalk and hand rails at the crusher 
(Tr. 70).

     Libertoski noticed that the load was being readied to be
lifted from the truck.  Libertoski could not recall the equipment
that was going to be used to lift the steel, but he remembered
that there was a metal sling around the load (Tr. 166-167).  In
addition, Libertoski remembered seeing a person standing on top
of the steel.  The person was guiding a hook into the sling so
that the steel could be lifted and removed (Tr. 144-145).

      As Libertoski walked toward the truck he saw that the
person standing on the steel was not wearing a safety belt and
line.  The person was approximately 5� feet to 6 feet above the
ground (Tr. 170-172).  The road below was surfaced with gravel
and the ground was frozen (Tr. 150).  There was nothing to
prevent the person from falling off of the load to the gravel
road.

     At first, Libertoski thought the person was a Vulcan miner.
(A Vulcan employee was running the equipment used to unload the
steel and two other miners were in the area (Tr. 145-146).)
However, when he approached the truck and spoke to the person,
the person told Libertoski that he was the truck driver and that
he worked for NIS (Tr. 157).  The driver also told Libertoski
that usually he delivered steel to the quarry twice a week (Tr.
175, 184).

     Libertoski touched the steel and found that it was wet,
making it "extra slippery" (Tr. 144, 161).  He believed the
driver reasonably was likely to slip off the steel, fall to the
gravel road and be injured seriously.  Libertoski acknowledged 
that the driver might have grabbed the hoist line to regain 
his stability and that the driver was wearing a hard hat, 
nonetheless Libertoski thought the driver was in danger (Tr. 
149-150, 173-175).

     No Vulcan supervisors were present when Libertoski saw the
driver, but as he walked toward the truck, a Vulcan management
official arrived (Tr. 185).  Because of the lack of on-site
supervisory personnel, Libertoski speculated that neither Vulcan
nor NIS management actually knew the driver was engaging in an
unsafe work practice (Tr. 152-153).

     Libertoski required the driver to climb down off of the
truck bed.  Libertoski and the Vulcan supervisor then instructed
the driver on the hazards of working without being tied off.
Also, Libertoski explained to the driver the requirements of
mandatory safety standard section 56.15005 (Tr. 190).  The driver
agreed that standing on the steel without a safety belt and line
was hazardous, and he assured Libertoski that he would not do it
again.

     Libertoski thought there was a violation of section 56.15005
because the driver was working without a safety belt and line
where there was a danger of falling (Tr. 143).  Libertoski cited
NIS for the violation because the driver was an NIS employee and
because NIS was an independent contractor performing a service
(the delivery and the rigging of steel).  Therefore, Libertoski
believed that NIS was an "operator" within the meaning of the Act
(Tr. 138, 159, 169).

     Libertoski was the last witness to testify for the
Secretary.  At the close of the Secretary's case, NIS rested.
Counsel for NIS maintained that the Secretary had not established
that NIS was an operator (Tr. 195-196).

                        THE STATUS OF NIS

     The Mine Act subjects to regulation each coal or other mine
affecting commerce and "each operator of such mine" (30 U.S.C. 
� 803). Section 3(d) of the Act defines "operator" as "any owner,
lessee or other person who operates, controls, or supervises a 
. . . mine or any independent contractor performing services or
construction at such mine" (30 U.S.C. � 802(d)).

     The phrase "any independent contractor performing services
or construction at [a] mine" was not included in the definition
of "operator" set forth in the Federal Coal Mine Health and
Safety Act of 1969 (Coal Act), the predecessor to the Mine Act.
It was added in 1977 when Congress amended the Coal Act and
renamed it the Mine Act.  Expansion of the statutory definition
was motivated by concern about the authority of the Secretary to
regulate independent contractors (See, e.g., National Industrial
Sand Association v. Marshall, 601 F.2d 689, 702-703 (3rd Cir.
1979)).  The context within which the concern arose involved the
Secretary's attempts to assert jurisdiction over independent
general contractors performing surface and subsurface construction 
at mines (See, Bituminous Coal Operator's Association v. Kleppe, 
547 F. 2d 240 (4th Cir. 1977)). In discussing the decision to 
include independent contractors in the revised definition of 
"operator", the Senate Committee that drafted the Mine Act stated, 
"[T]he definition of `operator' is expanded to include `any 
independent contractor performing services o[r] construction at 
such mine.'  It is the Committee's intent to thereby include 
individuals or firms who are engaged in construction at such mine,
 or who may be . . . engaged in the extraction


**FOOTNOTES**

     [1] Since the citation was issued the unloading practice has
changed. After  January 28,  1999,  upon instructions from  NIS
officials, NIS drivers have remained at  all times in the cabs of
their trucks. process for the benefit of the owner or lessee of 
the property" (S. Rep. No. 95-181, 1st Sess., 14 (1977), reprinted 
in Senate Subcommittee on Labor, Committee on Human Resources, 
95th Congress, 2d Sess. Legislative History of the Federal Mine 
Safety and Health Act of 1977 at 602)).

     The courts have emphasized that the statutory definition of
"operator" does not include all independent contractors at a
mine, but rather is restricted to those that are "performing
services or construction at [a] mine" (30 U.S.C. � 802(d)). For
example, the 3rd Circuit has stated that:

               The reference made in the statute only
          to independent contractors who "perform[ ]
          services or construction" may be understood
          as indicating . . . that not all independent
          contractors are to be considered operators.
          There may be a point, at least, at which an
          independent contractor's contact with a mine
          is so infrequent or de minimis that it would
          be difficult to conclude that services were
          being performed.  (National Industrial Sand
          Association, 601 F. 2d 689, 701 (3rd Cir.
          1979) (footnote deleted)).

The court's analysis of the legislative history lead it to
conclude that the concern of Congress was with the permissive
scope of the Secretary's authority not with the mandatory
imposition of the Act's requirements (National Industrial Sand,
601 F.2d at 703).

      Following this reasoning, the Secretary decided that rather
than spell out the parameters of her authority, she would leave
to herself the enforcement discretion to determine whether or not
a particular regulation applied to a particular independent
contractor (45 F.R. 44495, 44497 (July 1, 1980)).

     The Secretary's lack of specificity, did not reassure the
industry.  There was concern - concern that was reiterated at the
hearing on these matters - that the Secretary would abuse her
discretion by extending jurisdiction to entities that only were
connected remotely with mining; for example, that she might
attempt cite as "operators" independent contractors delivering
food or office supplies to a mine (See Tr. 29-31).  Partly in
response to such concerns, the Commission set forth two bases it
would consider when evaluating the Secretary's exercise of
discretion.  The Commission stated that it would look to: (1)
the contractor's proximity to the mining process and whether the
contractor's work was sufficiently related to that process, and
(2) the extent of the presence of the contractor at the mine (see
Otis Elevator Company, 11 FMSHRC 1896 (October 1989), 921 F. 2d
1285 (D. C. Cir. 1990); Joy Technologies Inc., 17 FMSHRC 1303,
1307 (August 1995), aff'd, 99 F. 3d 991 (10th Cir. 1996) cert.
denied, S. Ct. 1691 (1997)).

     The courts have not overturned these bases and the words of
the statute and the Commission's guidelines remain relevant to
the subject cases.  Applying the statutory definition and the
Commission's guidelines, I conclude the record fully supports
finding that when it was cited, NIS was governed by the Mine Act.

     First, NIS was an "independent contractor". Neither the
operation of the truck, nor the rigging of the steel was carried
out pursuant to Vulcan's supervision.  An NIS employee was
driving the truck.  An NIS employee was "unlocking" and rigging
the steel.  Vulcan was not supervising the unloading process. In
other words, NIS, through its employee, was acting independently
of Vulcan.  Moreover, NIS was delivering the steel that Vulcan
ordered and at no additional cost to Vulcan. In so doing, NIS
was acting pursuant to its contract with Vulcan.

     Second, NIS was "performing [a] service". It was delivering
the steel to the mine, and it was  assisting in unloading the
steel.  As Libertoski properly noted, in so doing, NIS was
engaging in work that Vulcan would have had to do if NIS had not
acted.  Clearly, this was a service to Vulcan.

     Third, NIS was engaged in work that was closely related to
the mining process.  The steel that was delivered on January 28,
1999, was going to be used in building a catwalk and handrails
at the crusher.  The crusher was vital to the on-site preparation
of limestone extracted at the quarry.

     Fourth, NIS had a significant presence at the quarry. The
delivery of the steel required the NIS driver to traverse a road
used by NIS employees and by other contractors, and the steel was
unloaded in an area where NIS employees were present and where
others might come.   Thus, the fact that the NIS driver and the
NIS truck were on Vulcan's property had a potential impact on the
safety of Vulcan's employees and on the safety of others at the
mine.

     Because NIS was acting as an independent contractor
performing a service, because the delivery of the steel by NIS
was closely related to the mining process, and because the
presence of the NIS driver and equipment was sufficiently
extensive, I find that the Secretary did not abuse her discretion
in citing the company, and I conclude that on January 29, 1999,
NIS was subject to the Act.

                          THE VIOLATION

     Libertoski's testimony that the NIS driver was on top of 
the truck's load of steel, that the steel was wet, and that the
driver was not tied off with a safety belt and line was not
disputed.  Nor was Libertoski challenged when he testified the
driver was approximately 5� to 6 feet above the road surface.
The testimony establishes that if the driver slipped, there was
nothing to prevent him from falling to the road. Thus, driver 
was "in danger of falling" and since he was not wearing a safety 
belt and line, the violation existed as charged.

                        S & S and GRAVITY

     The inspector found the violation was a significant and
substantial contribution to a mine safety hazard. A violation is
significant and substantial, if based on the particular facts
surrounding the violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature (Arch of Kentucky, 20
FMSHRC 1321, 1329 (December, 1998)); Cyprus Emerald Resources,
Inc., 20 FMSHRC 790, 816 (August 1998)); National Gypsum Co., 3
FMSHRC 822, 825 (April 1981)).  In Mathies Coal Co., 6 FMSHRC 1
(January 1984)), the Commission held that in order to establish a
S&S violation of a mandatory standard the Secretary must prove:
(1) the existence of an underlying violation; (2) a discrete
safety hazard that is, a measure of danger to safety contributed
to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable
likelihood the injury in question will be of a reasonable serious
nature.

     Here, the Secretary met her burden.  The failure of the
driver to be protected by a safety belt and line contributed to
the danger he would tumble from the truck to the road below. The
wet steel made it likely he would slip and fall. A fall of up to
six feet onto the hard surface of the road certainly was
reasonably likely to result in injury to the driver.  Had he
slipped, the only thing to prevent the driver from falling was
for him to grab the hoist line and to use it to stabilize
himself.  However, rigging the steel required him to move out of
reach of the line at times.  By wearing a safety belt and line,
all element of chance would have been eliminated, and slipping
would not have posed a danger of falling unrestrained. Therefore, 
I conclude that it was reasonably likely the driver would have 
slipped and that his unrestrained fall would have caused injury.  
Also, given the distance of the fall and the surface upon which 
he would have landed, I conclude the injury would have been of 
a reasonably serious nature.

     Finally, the nature of the injury that could have been
expected and the present possibility that an accident would have
occurred, indicate that, in addition to being S&S, the violation
was serious.

                            NEGLIGENCE

     The driver was under the supervision and control of NIS, and
NIS failed to ensure compliance with the standard in spite of the
fact  NIS  was  aware that its drivers occasionally  assisted  in
rigging steel.  (Only  after  January 29, did the company ordered
its drivers to remain in the cab  of  the  truck  when delivering
steel to the mine.)  In failing to make sure its driver  complied
with  section  56.15005,  the  company failed to exhibit the care
required by the circumstances and was negligent.

                   OTHER CIVIL PENALTY CRITERIA

     NIS has no history of previous violations.  Given the number
of employees and the number of hours NIS employees worked at the
mine, counsel for the Secretary characterized the company as
small in size (Stips. 5-6; Tr. 13).  The parties also stipulated
that payment of the assessed civil penalty will not affect the
ability of NIS to continue in business (Stip. 14).  Finally, the
inspector described the violation as have been abated in good
faith (Tr. 190).

                          CIVIL PENALTY

     Considering  the penalty criteria, and especially in view 
of the fact that this is the first time NIS has been cited for a
violation and that NIS is a small company, I conclude that a
civil penalty of $50 is appropriate.

                              ORDER

     NIS is ORDERED to pay a civil penalty of $50 within 30 days
of the date of this decision and upon payment of the penalty,
this proceeding is DISMISSED.


                              David F. Barbour
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

Adriana T. Reyes-Villanueva, Esq., Theodore J. Tierney, Esq.,
Vedder, Price, Kaufman & Kammholz, 222 North LaSalle Street,
Suite 2600, Chicago, IL 60601

Christine M. Kassak, Esq., Office of the Solicitor, U. S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604

Gary Cook, Conference and Litigation Representative, U. S.
Department of Labor, MSHA, 515 West 1st Street, Room 333, Duluth,
MN 55802-1302


/gl




FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868

                         Adriana T. Reyes-Villanueva, Esq.
                         Theodore J. Tierney, Esq.
                         Vedder, Price, Kaufman & Kammholz
                         222 North LaSalle Street, Suite 2600
                         Chicago, IL 60601





FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868

                         Christine M. Kassak, Esq.
                         Office of the Solicitor
                         U. S. Department of Labor
                         230 South Dearborn Street, 8th Floor
                         Chicago, IL 60604





FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C.  20006-3868

                         Gary Cook
                         Conference and Litigation Representative
                         U. S. Department of Labor, MSHA
                         515 West 1st Street, Room 333
                         Duluth, MN 55802-1302