.
ASSOCIATED SAND & GRAVEL COMPANY, INC.
August 9, 1995
WEST 95-25-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 9, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-25-M
Petitioner : A.C. No. 45-03300-05502
v. :
: Docket No. WEST 95-50-M
ASSOCIATED SAND & GRAVEL : A.C. No. 45-03300-05503
COMPANY, INC., :
Respondent : Butler Pit Wash Plant
DECISION
Appearances: Matthew L. Vadnal, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington;
Paul A. Belanger, Conference and Litigation
Representative, Mine Safety and Health
Administration, U. S. Department of Labor,
Vacaville, California, for Petitioner;
Brent Eddings, Safety Manager, Associated Sand and
Gravel Company, Inc., Everett, Washington, for
Respondent.
Before: Judge Amchan
At the outset of the hearing in this matter, the Secretary
withdrew Citation No. 4341895 and the corresponding $500 proposed
penalty. This was the only item in Docket No. WEST 95-50-M.
Towards the end of the hearing, Respondent withdrew its contest
to the $50 penalty proposed for Citation No. 4341891 in Docket
No. WEST 95-25-M. Remaining are two $50 penalties proposed for
Citation Nos. 4341893 and 4341894.
The first of these citations was issued because a 110
volt electrical outlet in Respondent's maintenance shop was
not effectively grounded. The second was issued because the
oil storage area on the outside of this shop was not posted
with signs prohibiting smoking and open flames (Tr. 30-37, 65).
Respondent does not dispute the existence of the
violative conditions (Tr. 65). It contends, however, that
the citations and proposed penalties should be vacated
because t he shop area was not part of its mine and
therefore not subject to MSHA jurisdiction.
The MSHA inspection of the shop area at the Butler Pit
On July 12, 1994, MSHA Inspector James Hudgins issued
the instant citations at a worksite in Burlington, Washington.
At that site Respondent maintains a sand and gravel pit,
facilities for sizing aggregate, a wash plant to rinse material
that is to be used in the production of concrete, a ready-mix
concrete plant and an asphalt plant (Tr. 16-17).
Hudgins inspected the sand and gravel pit and the wash
plant. He did not inspect the concrete or asphalt production
facilities because he concluded that they were not subject to
MSHA jurisdiction (Tr. 18). He decided to inspect the
maintenance shop because James Salley, Respondent's concrete
dispatcher, told him that mining equipment was repaired in
this building (Tr. 43, 65)[1].
The maintenance shop is next to the asphalt plant,
approximately 100 yards from the sand and gravel pit (Tr. 43).
Hudgins observed a front-end loader partially inside this
building (Tr. 44-45). Respondent's employees were fixing a
horn and a parking brake which Hudgins had cited at the wash
plant (Tr. 45).
The maintenance shop was built to service the concrete
and asphalt production facilities at the site. Respondent
contends that very little work is performed on mining
equipment in this shop. Most repairs on mining equipment are
performed outdoors or at Respondent's Everett, Washington
maintenance facility (Tr. 57, 73-75).
At Everett, Respondent has different maintenance
facilities for its mining and non-mining operations. This
was done in part to avoid having the same facility subject
to inspection by MSHA and the State of Washington's OSHA
program (Tr. 73-75).
Respondent's maintenance shop is within the
jurisdiction
In a recent case, the Review Commission held that a
garage used by an operator's sand and gravel mine and its
asphalt plant was subject to Mine Act jurisdiction, W. J.
Bokus Industries, Inc., 16 FMSHRC 704 (April 1994). I
consider that decision to be controlling in the instant
case.
In W. J. Bokus, the garage was used primarily for the
support of the asphalt plant. However, employees of both
the asphalt plant and the sand and gravel mine used the
garage to store, repair and maintain equipment. Crushing and
screening equipment for the sand and gravel operation was
also manufactured in the garage.
The use of the garage by the mining operation in
W. J. Bokus appears to be more substantial than Respondent's
use of the maintenance shop in this case. However, I do not
see this as a factor which would enable me to distinguish the
Commission decision in that case from the instant one. To the
contrary, the Commission decision stands for the proposition
that if a facility is used in support of mining activities to
any extent, MSHA may choose to assert its jurisdiction.
Miners employed by Respondent were at least potentially
exposed to the hazards created by the violations cited by
Inspector Hudgins. The legislative history of the Act states
that, "[w]hat is considered a mine and to be regulated under
this Act [shall] be resolved in favor of ... coverage of the
Act." S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977),
Legislative History of the Federal Mine Safety and Health Act
of 1977, at 602 (1978). Thus, I find that the maintenance
shop at the Butler Pit is subject to the Act.
ORDER
Docket No. WEST 95-50-M is DISMISSED. Citation
Nos. 4341893, 4341894 and 4341891 in Docket No. WEST 95-25-M
are affirmed. A $50 civil penalty is assessed for each of
these violations. These penalties shall be paid within 30
days of this decision.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Matthew L. Vadnal, Esq., U.S. Department of Labor, Office of
the Solicitor, 1111 Third Ave., Suite 945, Seattle, WA 98101
(Certified Mail)
Brent Eddings, Safety Manager, Associated Sand & Gravel Co.,
Inc., P.O. Box 2037, Everett, WA 98202
(Certified Mail)
/lh
**FOOTNOTES**
[1]: Respondent contends that Mr. Salley was not
knowledgeable about its mining operations and suggests that he
may have exceeded the scope of his authority in discussing the
repair of mining equipment with Inspector Hudgins (Tr. 59-60).
However, Respondent never contradicted Salley's statement to
Hudgins that mining equipment was repaired in the shop (Tr. 43).
I conclude therefore that mining equipment was repaired in this
shop on occasions other than the day of the inspection.