.
COX TRANSPORTATION CORP./COX ROCK PRODUCTS, INC.
April 5, 2000
WEST 99-155-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
April 5, 2000
COX TRANSPORTATION CORP./COX : CONTEST PROCEEDINGS
ROCK PRODUCTS, INC., :
Contestant : Docket No. WEST 99-155-RM
: Citation No. 7911843; 2/5/99
:
: Docket No. WEST 99-156-RM
v. : Citation No. 7911745; 2/5/99
:
: Docket No. WEST 99-157-RM
: Citation No. 7911846; 2/5/99
:
SECRETARY OF LABOR, : Docket No. WEST 99-158-RM
MINE SAFETY AND HEALTH : Citation No. 7911783; 2/8/99
ADMINISTRATION (MSHA), :
Respondent : Docket No. WEST 99-159-RM
: Order No. 7911784; 2/8/99
:
: Cox Rock Portable #3
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-369-M
Petitioner : A.C. No. 42-02201-05501 G3S
:
v. : Docket No. WEST 99-370-M
: A.C. No. 42-02201-05502 G3S
COX TRANSPORTATION CORP./COX :
ROCK PRODUCTS, INC., : Docket No. WEST 99-371-M
Respondent : A.C. No. 42-02201-05503 G3S
:
: Cox Rock Portable #3
ORDER DENYING COX TRANSPORT CORPORATION'S
MOTION TO DISMISS AND FOR SUMMARY DECISION
Cox Transport Corporation ("Cox Transport") filed a motion
to dismiss and for summary decision on the basis that the
Department of Labor's Mine Safety and Health Administration
lacked jurisdiction over the area where an employee of Cox
Transport was fatally injured. The Secretary opposes the motion
and asserts that MSHA had jurisdiction.
The driver of a bottom-dumping truck was fatally injured
when his clothing became entangled in the clamshell dump at the
bottom of the truck. He was on his way to an aggregate mine to
receive his first load of material for the day when the accident
occurred. He was found under the truck on an unpaved road
outside the mine's gateposts. The road was not closed to the
public. The site of the accident was about 300 feet from the
mine's scale house. The driver was employed by Cox Transport and
he was assigned to pick up material from the mine and deliver it
to a road construction site. This was his first trip of the day
and he had not entered the active areas of the mine.
Cox Transport maintains that there is no basis for MSHA
jurisdiction in these cases. It argues that:
[t]he truck was well outside the entrance to
the mine, parked in a public area where no
mining activities occurred, and this was an
area distinct from any mining activity. In
short, the area where the truck was located
at the time of the accident is not part of
the "parcel" of land on which the pit,
crusher, and scale house were located.
(CT Surreply 2). Cox Transport's analysis fails to take into
consideration the broad reach of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. �� 802 and 803. The starting point
for an analysis of Mine Act jurisdiction is the definition of the
term "coal or other mine," in section 3(h)(1). A coal or other
mine is defined, in pertinent part, as "(A) an area of land from
which minerals are extracted ..., (B) private ways and roads
appurtenant to such area, and (C) lands, ... structures,
facilities, equipment, machines, tools, or other property ... on
the surface or underground, used in, or to be used in ... the
work of extracting minerals from their natural deposits, ... or
used in ...the milling of such minerals...." 30 U.S.C.
� 802(h)(1). The Senate Committee that drafted this definition
stated its intention that "what is considered to be a mine and to
be regulated under this Act be given the broadest possible
interpretation, and ... that doubts be resolved in favor of
inclusion of a facility within the coverage of the Act." S. Rep.
No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 602 (1978); see also Donovan v. Carolina
Stalite Co., 734 F.2d 1547 (D. C. Cir. 1984).
Cox Transport argues that because the road where the
accident occurred was open to the public and the truck had not
yet entered the mine that day, MSHA lacked jurisdiction. Cox
Transport notified Utah-OSHA not MSHA of the fatal accident.
Jurisdictional issues under the Mine Act are often factually
complex. The Commission and various federal circuit courts have
wrestled with these issues. The circuit court decisions cited by
the parties base their holdings on the precise facts presented
and these decisions are not entirely consistent. A slight change
in the facts may change the results in a jurisdictional case.
The Secretary takes what is often called a "nooks and crannies"
approach when interpreting OSHA jurisdiction. OSHA fills in the
nooks and crannies that other safety statutes do not cover.
Whether MSHA has jurisdiction under the specific facts at issue
here will be one of the key issues in these cases.
I find that there are too many open factual issues for me to
rule that MSHA did not have jurisdiction over the accident. For
example, although it appears that the road was open to the
public, it is not clear whether the road was on land owned by the
mine operator. Ownership may be an important issue of fact. It
is also not clear whether this road also leads to non-mining
related properties or whether it is primarily used to gain access
to the mine. It appears from the photographs submitted by the
Secretary that the "gateposts" referred to by Cox Transport may
be nothing more that two posts set into the ground on either side
of a road. Cox Transport puts great significance on the fact
that the accident occurred outside these gateposts, but is not
clear how these gateposts relate to the road in question and
whether they have any real significance. Cox Transport's
argument that the area where the accident occurred was "not part
of the `parcel' of land on which the pit, crusher, and scale
house were located" is unclear. Mine Act jurisdiction has never
been analyzed by reviewing land, parcel by parcel, to determine
which individual parcels fit within the definition in section
3(h). A facility is considered as a whole when determining
whether it is a mine.
I find that Cox Transport has not established the two
prerequisites to granting summary decision set forth in
Commission Rule 67(b): that there are no genuine issues of
material fact and that Cox Transport is entitled to summary
decision as a matter of law. As stated above, there are a number
of genuine issues of material fact. In addition, even if I
accept all of the facts presented by Cox Transport, I cannot hold
that Cox Transport is entitled to summary decision as a matter of
law because the record is not complete. For the same reason, I
cannot grant Cox Transport a judgment on the pleadings under Fed.
R. Civ. P. 12(c).
In denying the motion, I do not hold that the Secretary has
jurisdiction over the accident site. I only determine that I
need additional facts to resolve the jurisdictional issues
presented in these cases with the result that summary disposition
is not appropriate. Accordingly, Cox Transport's motion to
dismiss and for summary decision is DENIED.
Cox Transport also separately challenges the validity of
Citation No. 7911846, which alleges that Cox Transport failed to
notify MSHA of the accident. As stated above, Cox Transport
notified Utah-OSHA and it contends that such notification was all
that was required. Cox Transport maintains that MSHA did not
claim jurisdiction until six days after the accident, after Utah-
OSHA released the accident scene. Cox Transport asks that the
citation be vacated because it was not trying to hide the
accident from MSHA and Utah-OSHA had an obligation to notify MSHA
if it did not have jurisdiction.
Although Cox Transport characterizes this challenge as
separate from its jurisdictional challenge, it is really
intimately tied to the jurisdictional challenge. If, after the
hearing, I find that MSHA did not have jurisdiction, then this
citation will be vacated. If, on the other hand, I find that
MSHA did have jurisdiction, whether the citation should be
vacated will depend on many factors that are not in the record at
this time. The OSHA/MSHA Interagency agreement does not
necessarily resolve the issue. For example, in some states the
state OSHA agency has concurrent jurisdiction over mines and the
OSHA/MSHA agreement may not apply to Utah-OSHA in any event. Cox
Transport has not established that it is entitled to summary
decision under Commission Rule 67(b) or a judgment on the
pleadings under Fed. R. Civ. P. 12(c).
In denying the motion, I do not hold that the Citation No.
7911846 is valid. I only determine that I need additional facts
to resolve the issues presented with the result that summary
disposition is not appropriate. Accordingly, Cox Transport's
motion to vacate Citation No. 7911846 is DENIED. The hearing
will commence at 9 a.m. on May 30, 2000, in Salt Lake City, Utah,
as previously scheduled.
Richard W. Manning
Administrative Law Judge
Distribution:
Adele Abrams, Esq., Patton Boggs, 2550 M Street, NW, Washington,
DC 20037-1350
Matthew C. Barneck, Esq., Richards, Brandt, Miller & Nelson, P.O.
Box 2465, Salt Lake City, UT 84110-2465
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
RWM