MSHA Has jurisdiction over quarry's garage one mile from mining operation.
The "garage satisfies the plain reading of a facility used in mineral extraction and milling because the vehicles and charging equipment are used at the quarry. Thus, the garage is a mine and subject to MSHA jurisdiction," the judge said.
The case stems from two inspections at Brdaric Excavating Inc.'s Buck Mountain Quarry in Luzerne, Pa. On Feb. 22,2012, an inspector attempted to inspect the garage, but the owner refused entry. A second attempt was made on May 14, 2012, and MSHA was denied entry again.
MSHA returned on May 15,2012, and issued six citations: for unsecured gas cylinders, no open flame warning, a blocked travel passageway, lack of electrical testing, an uninspected air compressor, and no recorded workplace examination. The operator did not deny the violations, but contested MSHA's jurisdiction over the garage.
The company and Secretary stipulated that the vast majority of the vehicles and pieces of equipment that are serviced and repaired in the garage are not used in the quarry, but instead are used for demolition, land grading and similar jobs at customer sites. The vast majority of the parts, oils and equipment stored in the garage are not used to service and repair equipment and vehicles used in the quarry.
It was also stipulated that employees work both at the quarry and at the garage, which are both owned by the Brdaric family. Dump trucks serviced at the garage pick-up mined materials from the quarry, and also are used for non-quarry related purposes when Brdaric is performing excavation or demolition at customer sites. When vehicles or equipment from the quarry need to be serviced, they are worked on in the garage, or the garage mechanic will go to the quarry site.
The company argued that the garage should be under OSHA jurisdiction, because the vast majority of machines serviced and repaired there are not an integral part of extracting minerals or mining.
In ruling for support of MSHA jurisdiction, Judge Lewis said the Mine Act broadly defines a mine to include facilities and equipment to be used in mineral extraction and milling. The garage in this case is used to store air conditioning charging equipment that is used to charge vehicles used in the quarry.
Other equipment, such as dump trucks, an excavator, a 988B wheel loader motor, and articulating Caterpillar trucks were repaired at the garage. A welding truck used by a garage employee was occasionally at the quarry, and serviced at the garage. The truck used by a garage employee to service equipment at the quarry is repaired and kept parked at the garage; and, the garage mechanic is the primary person who repairs and services equipment and vehicles used in the quarry.
"With the garage being used for storage and repairs of the aforementioned quarry equipment and vehicles, this garage satisfies the plain reading of a facility used in mineral extraction and milling because the vehicles and charging equipment are used at the quarry" Judge Lewis said.
Distance and Usage
The company argued that the distance of one mile between the garage and the quarry precludes MSHA from asserting jurisdiction. Citing Jim Walters Resources, 22 FMSHRC 21, where the mine shop was slightly more than a mile away, the judge said "the distance [is] minimal and in any case irrelevant to finding whether the garage is used in mineral extraction or milling.
The company also argued that it only serviced six quarry vehicles at the garage from January to May, but this was enough vehicles for the Secretary to prove more than a de minimis relationship and usage, justifying MSHA jurisdiction.
The company also said that the garage was a separately owned private business that did not share ownership with the quarry. The "company" owned the "quarry" while Brdaric as an individual owned the garage. Judge Lewis said this was not relevant as to whether the garage qualifies as a mine under the Act. "... [I]t is not dispositive that Buck Mountain Quarry is operated by BEI (of which John P. Brdaric was the sole shareholder] and the garage was owned by Brdaric in an individual capacity."
Also citing the MSHA/OSHA agreement, Judge Lewis said if the garage were under OSHA jurisdiction, then "there would not be adequate protection for the individuals working on mining equipment, and there would be no liability for the garage operator if the mechanics improperly or inadequately repair or service mining equipment. MSHA jurisdiction provides for protection at both the quarry and the garage."
The company was given "fair notice" of MSHA's jurisdiction when the agency sought to inspect the garage in 2008, and as a result the company said that mining equipment would not longer be repaired in the garage. Based on the previous notes that MSHA had on a meeting with the company over jurisdiction, the company was not deprived of due process in having the garage subject to MSHA jurisdiction.
BRDARIC EXCAVATING INC., 2/16/2016, FMSHRC(J) No. PENN 2012-313-M; 23 MSHN D-492
Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, www.minesafety.com. She has been covering mining issues since 1987 and has won 51 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at firstname.lastname@example.org.
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|Title Annotation:||FOCUS ON HEALTH & SAFETY|
|Date:||Apr 1, 2016|
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