.
RICHARD E. SEIFFERT RESOURCES
WEST 2000-201-M
April 16, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
April 16, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-201-M
Petitioner : A.C. No. 35-03489-05501
:
v. : Docket No. WEST 2000-202-M
: A.C. No. 35-03489-05502
RICHARD E. SEIFFERT RESOURCES, :
Respondent : Bailey Quarry
DECISION
Appearances: Paul A. Belanger, Conference and Litigation
Representative, Mine Safety and Health
Administration, Vacaville, California for
Petitioner;
Marcel Roy Bendshadler, Portland, Oregon, for
Respondent.
Before: Judge Manning
These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Richard
E. Seiffert Resources ("Seiffert Resources"), pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. �� 815 and 820 (the "Mine Act"). A hearing was
held in Portland, Oregon.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Preliminary Issues
Seiffert Resources operates the Bailey Quarry in Washington
County, Oregon. On November 9-10, 1999, MSHA Inspector David
Brown inspected the Bailey Quarry. MSHA was not aware of the
quarry until it received a hazard complaint from an employee at
the quarry. Inspector Brown was sent to the quarry to
investigate the complaint. Inspector Brown determined that the
quarry was subject to MSHA jurisdiction and he conducted an
investigation. He also inspected the quarry for violations of
the Secretary's safety standards.
These cases involve 22 citations issued under section 104(a)
of the Mine Act. Two of the citations allege that Seiffert
Resources failed to notify MSHA that it had opened the quarry.
These citations allege violations of 30 C.F.R. � 41.11 and
�56.1000. Inspector Brown determined that the quarry had been in
operation for about three months. (Tr. 38). Seiffert Resources
contested one of these citations in WEST 2000-165-RM.
From the outset of these proceedings, Seiffert Resources
took the position that MSHA does not have jurisdiction to inspect
the quarry. In the related contest proceeding, the parties
briefed the jurisdiction issue. The parties agreed that the
fundamental facts surrounding the jurisdiction issue are not in
dispute and that this issue was amenable to written
presentations. In a decision issued on October 26, 2000, I held
that the Secretary has jurisdiction under the Mine Act to conduct
warrantless inspections of the Bailey Quarry. Seiffert Resources
did not appeal that decision. My decision in WEST 2000-165-RM is
binding in this case.[1]
Seiffert Resources was represented by Marcel Roy Bendshadler
at the hearing. He is not an attorney, but he calls himself a
"Constitutional Counselor." I permitted Mr. Bendshadler to
represent Seiffert Resources under 29 C.F.R. � 2700.3(b)(4).
Seiffert Resources raised a number of jurisdictional issues at
the hearing in these cases. Most of these arguments were
previously raised and are rejected for the reasons set forth in
my previous decision. It argues, for example, that the quarry is
located in the "Republic of Oregon" and that the United States
government does not have jurisdiction over private property
within Oregon. This argument and others like it are rejected.
Seiffert Resources also raises a number of other issues. It
argues that the material that it digs from the earth is not a
mineral because it has no intrinsic value. It maintains that it
digs up worthless rock and crushes it for use by customers. It
argues that ordinary rock is not a mineral, as that term is used
in section 3(h)(1) of the Mine Act.
For purposes of the Mine Act, the term "mineral" is very
broadly defined. The term "mineral" is defined as "any of
various naturally occurring homogeneous or apparently homogeneous
... solid substances (as ore ... sand, gravel ...) obtained for
man's use usually from the ground." Webster's Third New
International Dictionary 1437 (1993). The term may have many
meanings depending on the context, and generally includes
anything dug out of a mine or quarry, such as stone. Indeed, the
term "rock" is defined as "an aggregate of one or more minerals"
and the term "stone" is defined as "a mineral or group of
consolidated minerals either in mass or in a fragment of pebble
or larger size." Dictionary of Mining, Mineral, and Related
Terms 464, 540 (American Geological Institute, 2d ed. 1997). I
find that stone, rock, gravel, and sand are minerals as that term
is used in the Mine Act.
Seiffert Resources suggested that all of the citations
should be vacated because no employees were injured as a result
of any of the cited conditions. It argues that because no
employee had been injured, Inspector Brown should have honored
the posted "No Trespassing" signs. The Secretary's jurisdiction
to conduct warrantless inspections of quarries is not dependent
on the presence of an injury. In addition, the Commission and
the courts have uniformly held that mine operators are strictly
liable for violations of safety and health standards. See, e.g.
Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "[W]hen a
violation of a mandatory safety standard occurs in a mine, the
operator is automatically assessed a civil penalty." Id. at
1197. The Secretary is not required to prove that a violation
creates a safety hazard, unless the safety standard so provides.
The [Mine Act] imposes no general requirement
that a violation of MSHA regulations be found
to create a safety hazard in order for a
valid citation to issue. If conditions
existed which violated the regulations,
citations [are] proper.
Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir.
1982)(footnote omitted). The negligence of the operator and the
degree of the hazard created by the violation are taken into
consideration in determining the amount of the penalty. Thus, if
a safety standard is violated, a penalty is assessed even if
there was no injury and the chance of an injury was not very
great.
Seiffert Resources also argues that Title 30 of the United
States Code does not have the force of positive law. (Tr. 166).
It contends that since Title 30 is not positive law, it only
applies within the United States and it was not established that
the quarry is "within the United States." (Tr. 57). As stated
above, Seiffert Resources' arguments concerning the jurisdiction
of the United States government are rejected. Although Title 30
is not positive law, it is "prima facie evidence of the laws"
contained within it. (Preface to the United States Code, 1994
Edition). The Mine Act itself is positive law and I have relied
upon the Mine Act not Title 30 in rendering my decision in these
cases. Any references to Title 30 in this decision are merely
for the convenience of the reader.
Seiffert Resources also argues that the law of contracts,
the Uniform Commercial Code, and the law of secured transactions
applies in these cases. At the hearing, Seiffert Resources
repeatedly asked me whether it is being "addressed" as a creditor
or a debtor in these cases. (Tr. 5-20, 160). It also maintains
that the concept of procuration applies. (Tr. 16-17). The term
"procuration" simply refers to the act of appointing another as
one's attorney-in-fact or agent. Seiffert Resources seems to
believe that it has been appointed as an agent of MSHA and the
Commission. It states that it has "put forth paperwork [to] tell
the people responding that we [Seiffert Resources] are going
to do the work for you [the judge] since you seem not to be able
to do your job on your own...." (Tr. 17; Ex. R-1). This argument
is without merit. As I stated at the hearing, this proceeding has
nothing to do with the law of contracts or the creditor-debtor
relationship. It is a regulatory proceeding under the Mine Act
which grants MSHA jurisdiction under Article I, Section 8, Clause
3 of the United States Constitution.
Seiffert Resources offered no testimony concerning the
individual citations at the hearing. Mr. Richard E. Seiffert
testified that he is the operator of the Bailey Quarry, that MSHA
does not have jurisdiction over his quarry, and that he is
declaring "diplomatic immunity." (Tr. 163-64). When asked for
the basis of his declaration of diplomatic immunity he simply
stated "that's for a matter that's going to continue later." Id.
This argument is without merit. The "Republic of Oregon" does
not exist; Oregon is one of the several states over which MSHA
has jurisdiction under the Mine Act.
In its opening statement, Seiffert Resources stated that Mr.
Seiffert "would simply like to continue peacefully going about
his existence, harming no other, as he expects others not to harm
him." (Tr. 23). The purpose of the MSHA inspection was to help
Mr. Seiffert prevent accidents. One of his employees believed
that Mr. Seiffert was not doing enough to provide a safe working
environment so he called MSHA for help. Numerous fatal and
serious accidents have occurred at small quarries like Mr.
Seiffert's. Thus, MSHA inspected the quarry to help Mr. Seiffert
make sure that he, in fact, does not harm others.
B. Discussion of the Citations
At the outset of the inspection, Mr. Seiffert told Inspector
Brown that he thought he had obtained all of the permits
necessary to open the quarry. (Tr. 36). Mr. Seiffert was
unaware of MSHA's existence or the requirements contained in the
Secretary's safety standards. He was very cooperative during the
inspection. (Tr. 50). At the hearing, the Secretary presented
testimony with respect to each citation at issue in these cases.
Seiffert Resources cross-examined the MSHA inspector but did not
present any evidence as to the merits of the citations.
I affirmed Citation No. 7973945 in my decision in WEST 2000-
165-RM.[2] I affirm Inspector Brown's determination that the
violation was not serious, was not of a significant and
substantial nature ("S&S"), and that the negligence of Seiffert
Resources was low. (Tr. 41). I assess a penalty of $20.
Citation No. 7973947 alleges that Seiffert Resources violated 30
C.F.R. � 56.1000 by failing to notify MSHA's Metal/Nonmetal
District Office that he was commencing operations. The Secretary
established a violation of this standard. (Tr. 52-55). I affirm
the inspector's determination that the violation was not serious,
not S&S, and that the negligence was low. I assess a penalty of
$20.
Inspector Brown issued Citation No. 7973946 in response to
the hazard complaint. This citation alleges that there was a
section of loose material that was about 15 feet high, 8 feet
wide, and 4 feet thick in a high wall at the quarry. It states
that one of the fractures in the rock was about eight inches
wide. The citation further states that the fractured section was
directly above the loading area in a narrow slot that was about
25 feet wide and several hundred feet long. The citation alleges
a violation of section 56.3200, which requires that ground
conditions that create a hazard to persons be taken down or
supported.
Inspector Brown testified that if this condition were not
corrected the loose material could have fallen in an area where
people are required to work. (Tr. 43). He reached this
conclusion because the area was cracked on both sides. The
vibration of the equipment working in the area could have brought
the material down. Id. He also testified that rain would tend
to wash out the fine material making the high wall more likely to
fall. (Tr. 44). The inspector stated that the narrow work area
increased the hazard.
No equipment or employees were working in the area at the
time he issued his citation. He observed fresh tracks in the
slot between the two high walls that appeared to be from a track
hoe and a haul truck. (Tr. 47-48). He was also told by Mr.
Seiffert that they excavated material from within this slot.
(Tr. 48). There were no barricades preventing anyone from
entering the area. The inspector did not know when the cracks in
the high wall developed. (Tr. 66). Inspector Brown determined
that the violation was serious and S&S, and that the operator's
negligence was moderate. The inspector testified that Mr.
Seiffert immediately abated the condition.
Seiffert Resources believes that this citation should be
vacated because the inspector did not know how long the cracks
had been present nor did he have sufficient expertise to
determine whether the high wall presented a hazard to employees.
(Tr. 166). I find that the Secretary established a violation.
As a result of his MSHA training and his prior experience working
in quarries, Inspector Brown had sufficient expertise to
determine that the high wall presented a hazard. In addition,
Seiffert Resources did not offer any evidence to the contrary. I
credit the inspector's testimony with respect to this citation.
I also find that the violation was S&S. An S&S violation is
described in section 104(d)(1) of the Mine Act as a violation "of
such nature as could significantly and substantially contribute
to the cause and effect of a ... mine safety or health hazard."
A violation is properly designated S&S "if based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature."
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission set out a
four-part test for analyzing S&S issues. Evaluation of the
criteria is made assuming "continued normal mining operations."
U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The
question of whether a particular violation is S&S must be based
on the facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498 (April 1988).
The Secretary must establish: (1) the underlying violation
of the safety standard; (2) a discrete safety hazard, 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 that the injury in
question will be of a reasonably serious nature. The Secretary
is not required to show that it is more probable than not that an
injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).
The fact that employees worked in a narrow 25-foot wide area
between two high walls increased the chance that someone could be
injured. The vibrations from the machinery and the rainy weather
also increased the likelihood of an accident in which an employee
could be seriously injured. I find that the violation was
serious and that the operator's negligence was moderate. I
assess a civil penalty of $113.
Citation No.7973948 alleges that the electrical trailer
contained several electrical control boxes that were open in the
back, in violation of section 56.12032. Inspector Brown
testified that 480-volt conductors entered these control boxes
through these open backs. He determined that the violation was
not S&S because the trailer was dry and well kept. He believed
that an injury was unlikely. (Tr. 74, 76). He determined that
the operator's negligence was moderate.
I find that the Secretary established a violation. The
openings in the backs of the starter boxes created a hazard that
moisture, dirt, or other foreign objects could create a short
circuit. The inspector agreed that the risk was not high. I
find that the violation was not serious and that the negligence
of Seiffert Resources was moderate. The $55 penalty proposed by
the Secretary is appropriate.
Citation No. 7973949 alleges that the V-belt drives on the
generator were not guarded, in violation of section 56.14107(a).
Employees could become entangled in the pinch points. The
citation states that the drives are adjacent to the start-up area
for the generator. Seiffert Resources does not dispute that the
pinch points were not guarded. (Tr. 80). The inspector
determined that the violation was not S&S and that the negligence
was moderate.
Seiffert Resources maintains that, because the manufacturer
of the generator did not provide guards for the V-belt drives,
Seiffert Resources should not be charged with a violation. It
believes if anyone is charged with a violation of this standard
it should be the manufacturer of the equipment. (Tr. 82-84). I
find that the Secretary established this violation.
Manufacturers often do not provide all the guards that are
required by MSHA. It is the responsibility of the quarry
operator to make sure that all pinch points are guarded. I
affirm this citation in all respects and I assess a penalty of
$55.
Citation No. 7973950 alleges that the 110-volt wiring
between two fluorescent light fixtures in the generator trailer
contained a splice that was not insulated to a degree at least
equal to the original and sealed to exclude moisture. (Tr. 85).
The wires were attached using a twist on cap without any
additional protection. The citation alleges a violation of
section 56.12013(b). The inspector determined that the violation
was not S&S and that the negligence was moderate.
Seiffert Resources stated that the wiring was in the cited
condition when the generator trailer was purchased. It argues
that the safety standard is too vague to be enforceable. I find
that the Secretary established a violation. The splice must be
insulated to the same degree as the original wiring or a junction
box must be installed. (Tr. 87). The fact that Seiffert
Resources purchased the trailer in this condition does not negate
the violation. I affirm this citation in all respects and I
assess a penalty of $55.
Citation No. 7973951 alleges that the 480-volt power cord
for a conveyor had pulled away from the fitting on the control
box. It states that inner conductors in the power cord were
exposed. (Tr. 9192). The citation alleges a violation of
section 56.12008. The inspector determined that the violation
was not S&S and that the negligence was moderate.
Seiffert Resources questions whether the conveyor was in
operation at the time of the inspection. Through its cross-
examination, it infers that the conveyor may have been under
construction at the time of the inspection. (Tr. 94). Inspector
Brown credibly testified that the conditions he observed showed
that the conveyor was in an operable condition. Id. He
testified that the conveyor was part of the crushing circuit that
had been operating, at least for testing purposes. (Tr. 99).
Although the crusher may not have been in production, the
inspector believed that it had been run. (Tr. 101) The
electrical circuit for the conveyor was not energized at the time
of the inspection (Tr. 102). The citation states that the
"conveyor was not in operation due to repairs to that portion of
the plant and power at the main switch was in the `off'
position." Seiffert Resources did not offer any evidence to
contradict Inspector Brown's testimony that the conveyor had been
used. There was no testimony that Seiffert Resources was in the
process of correcting the cited condition. I find that the
Secretary established a violation because the power cord was not
properly seated in the fitting. I affirm this citation in all
respects and I assess a penalty of $55.
Citation No. 7973952 alleges that the self-cleaning tail
pulley for the rear conveyor was not provided with guards to
protect employees from contacting the rotating tail fins. It
states that the pulley was about 60 inches above the ground.
There was spillage around the tail pulley. (Tr. 104). The
citation alleges a violation of section 56.14107(a). The
inspector determined that the violation was not S&S and that the
negligence was moderate.
Seiffert Resources indicated that guards were not provided
by the manufacturer. As stated above, it is the mine operator
that bears the ultimate responsibility. I affirm this citation
in all respects and I assess a penalty of $55.
Citation No. 7973953 alleges that the power cord supplying
power for the motor on the horizontal impact crusher was not
securely fastened to the fitting. Electrical tape was used to
secure the cord where it entered the junction box. (Tr. 108).
The citation alleges a violation of section 56.12008. The
inspector determined that the violation was not S&S and that the
negligence was moderate. The Secretary did not propose a penalty
for this citation. The citation is not included in "Exhibit A"
attached to the Secretary's Petition for Assessment of Civil
Penalty. Under section 105(a) of the Mine Act, the Secretary is
required to "notify the operator by certified mail of the civil
penalty proposed to be assessed under section 110(a) for the
violation cited...." Because a penalty was not proposed by the
Secretary, I do not have authority to assess a penalty for this
citation.
Citation No. 79783954 alleges that the junction box on the
end of the feed motor had a hole in the side of the box that
would allow moisture and dust to enter the junction box. The
junction box was missing one of the knockouts. (Tr. 110). The
citation alleges a violation of section 56.12032. The inspector
determined that the violation was not S&S and that the negligence
was moderate. I affirm this citation in all respects and I
assess a penalty of $55. Although the likelihood of an injury
was low, the condition violated the safety standard.
Citation No. 7973955 alleges that a small quantity of
flammable liquid was kept in a container that was not a safety
can, in violation of section 56.4402. A safety can is defined at
56.2 as "an approved container ... having a spring-closing lid
and spout cover." There is no dispute that the cited plastic
container was not an approved safety can. The inspector
determined that the violation was not S&S and that the negligence
was low. The plastic container contained gasoline and was
properly labeled. (Tr. 113, 115). Seiffert Resources suggests
that the word "shall" in the safety standard means "maybe,"
citing Black's Law Dictionary. (Tr. 114). Its argument is
rejected. The word "shall" means "has a duty to" or "is required
to." Black's Law Dictionary 1379 (7th ed. 1999). I affirm this
citation in all respects and I assess a penalty of $20.
Citation No. 7973956 alleges that several fire extinguishers
at the site had not been inspected on an annual basis in
violation of section 56.4201(a)(2). Inspector Brown testified
that the violation was not S&S and the operator's negligence was
low. (Tr. 116-17). Seiffert Resources may have had other fire
extinguishers that complied with the standard and other
firefighting equipment may have been present. I affirm this
citation in all respects and I assess a penalty of $20.
Citation No. 7973957 alleges that none of the employees at
the quarry had been given first-aid training as required by
section 56.18010. Inspector Brown testified that the violation
was not S&S and the operator's negligence was low. (Tr. 121-22).
As with Citation No. 7973953, a penalty for this citation was not
proposed by the Secretary. Consequently, this citation cannot be
included within this decision.
Citation No. 7973958 alleges that toilet facilities were not
provided that were readily accessible to employees, in violation
of section 56.20008(a). The inspector testified that the
violation was not S&S and that the operator's negligence was low.
(Tr. 123). The inspector further testified that Mr. Seiffert
advised him that there was a trailer at the site that he was
going to equip with a toilet. (Tr. 124). I affirm this citation
in all respects and I assess a penalty of $20.
Citation No. 7973959 alleges that there were no documents at
the quarry to show that work place examinations were being made,
in violation of section 56.18002(b). Inspector Brown testified
that the violation was not S&S and the operator's negligence was
low. (Tr. 125-26). He stated that Mr. Seiffert was not aware of
this record keeping requirement. I affirm this citation in all
respects and I assess a penalty of $20.
Citation No. 7973960 alleges that the brake lights on a GMC
dump truck were not in working order, in violation of section
56.14100(b). Inspector Brown determined that malfunctioning
brake lights were a defect that affect safety because other
vehicles in the quarry would not know when the truck was slowing
down or coming to a stop. (Tr. 127). The inspector determined
that the violation was not S&S and that the negligence was
moderate. I affirm this citation in all respects and I assess a
penalty of $55.
Citation No. 7973961 alleges that the windshield wiper on
the driver's side of this same dump truck was not functioning.
The citation also charges a violation of section 56.14100(b).
Inspector Brown determined that the malfunctioning wiper was a
defect that affects safety. He also determined that the
violation was not S&S and that the negligence was moderate.
Inspector Brown was not sure if the wiper was vacuum operated or
electrically operated. (Tr. 130-31). In order to test a wiper
that is operated by vacuum, one must start the engine to build up
air pressure. (Tr. 131). The mine operator advised Inspector
Brown that the wiper had been working. (Tr. 132-33). The
inspector testified that the passenger side wiper must have been
working because he did not include that wiper in the citation.
In addition, the truck was started during this inspection as
evidenced by Citation No. 7973962. I find that the Secretary
established that the cited wiper was not functioning. I affirm
this citation in all respects and I assess a penalty of $55.
Citation No. 7973962 alleges that the low air warning device
on this same dump truck was not maintained in a functioning
condition. The citation alleges a violation of section
56.14100(b). The low air warning device did not alert the
inspector to low air pressure as the pressure was dropped to 0
psi. (Tr. 137). The inspector determined that the violation was
not S&S and that the negligence was moderate. I find that the
Secretary established that the malfunctioning warning device was
a device that affects safety. The operator of the vehicle would
not be aware if the air pressure became too low to operate the
brakes. I affirm this citation in all respects and I assess a
penalty of $55.
Citation No. 7973963 alleges that the seatbelt installed on
the 35 ton Mack haul truck did not meet the requirements of
section 56.14130(h). The seat belt was an ordinary seat belt
installed on trucks for use on public highways and it was in good
condition. (Tr. 139-40). Mr. Seiffert was unaware that the
existing seatbelt was not adequate. Inspector Brown testified
that the violation was not S&S and the operator's negligence
was low. I affirm this citation in all respects and I assess a
penalty of $20.
Citation No. 7973964 alleges that the air activated
windshield wiper on this same haul truck was not functioning, in
violation of section 56.14100(b). The operator of the vehicle
could operate the wiper by hand. (Tr. 142). Inspector Brown
testified that the violation was not S&S and the operator's
negligence was low. I affirm this citation in all respects and I
assess a penalty of $20.
Citation No. 7973965 alleges that guards were not provided
for the fan and V-belt drives in the engine compartment of this
same haul truck. The citation alleges a violation of section
56.14107(a). Inspector Brown testified that it appeared that the
truck had once been provided with the required guards. (Tr.
143). Inspector Brown testified that the violation was not S&S
and the operator's negligence was moderate. He stated that the
areas that required guarding were within reach of a person
checking the oil. (Tr. 144). I find that the Secretary
established a violation. I affirm this citation in all respects
and I assess a penalty of $55.
Citation No. 7973968 alleges that the seats belts were not
provided in the Caterpillar front-end loader. The citation
states that the front-end loader was not in operation at the time
of the inspection, but it had been used the day before. He
obtained this information from mine personnel. (Tr. 151-52).
The citation alleges a violation of section 56.14130(a)(3).
Inspector Brown testified that the loader was built after 1969.
(Tr. 147-48). He further stated that the quarry was fairly
level. He also stated that because the suspension on this type
of loader is rigid, the ride is not smooth. (Tr. 149). He
determined that the violation was S&S because it was reasonably
likely that the cited condition would contribute to an injury of
a reasonably serious nature. Id. The inspector testified that
the operator of the loader would be bounced around quite a bit
and that, if the operator had to make a sudden stop, he could be
injured. Inspector Brown determined that Seiffert Resources'
negligence was moderate.
I find that the Secretary established a violation. I credit
Inspector Brown's testimony. I affirm this citation in all
respects and I assess a penalty of $113.
Citation No. 7973969 alleges that guards were not present on
the sides of the engine compartment on this same loader to
protect employees from contacting moving machine parts. The
citation alleges a violation of section 56.14107(a). This
citation is similar to Citation No. 7973965. He did not consider
the violation to be S&S. He determined that the operator's
negligence was moderate. He testified that the likelihood of an
injury was not great because of the exposure and location. (Tr.
153). He believes that normal maintenance is performed with the
engine off. I find that the Secretary established a violation.
I affirm this citation in all respects and I assess a penalty of
$55.
Citation No. 7973970 alleges that employees of Seiffert
Resources had not been reporting and recording safety defects on
mobile equipment. Section 56.14100(d) requires that safety
problems on self-propelled equipment be corrected immediately or
reported to and recorded by the mine operator. Inspector Brown
testified that there were no records for any of the safety
defects he found during his inspection. (Tr. 155). When he
asked Mr. Seiffert for such records, he was advised that such
records did not exist. Id. Inspector Brown testified that the
violation was not S&S and the operator's negligence was moderate.
I find that the Secretary established a violation. I affirm this
citation in all respects and I assess a penalty of $55.
II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. I find
that no citations were issued at the quarry during the two years
preceding the inspection. Seiffert Resources is a small
operator. All of the citations were abated in good faith. The
penalties assessed in this decision will not have an adverse
effect on Seiffert Resources's ability to continue in business.
The gravity of the two S&S violations is moderate, but the
gravity for the other violations is low. My findings with regard
to negligence is set forth above. I reduced the penalties for
citations alleging low negligence. Based on the penalty
criteria, I find that the penalties set forth below are
appropriate.
**FOOTNOTES**
[1]: The Commission did not publish my decision in WEST
2000-165-RM. Consequently, that decision is attached as an
appendix to this decision for publication.
[2]: As a result of a typographical error, that decision
refers to an incorrect citation number for this citation. The
correct citation alleging a violation of section 41.11 is No.
7973945.
III. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C. � 820(i), I assess the following civil penalties:
Citation No. 30 C.F.R. � Penalty
WEST 2000-201-M
7973945 41.11 $20.00
7973946 56.3200 $113.00
7973947 56.1000 20.00
7973948 56.12032 55.00
7973949 56.14107(a) 55.00
7973950 56.12013(b) 55.00
7973951 56.12008 55.00
7973952 56.14107(a) 55.00
7973954 56.12032 55.00
7973955 56.4402 20.00
7973956 56.4201(a)(2) 20.00
7973958 56.20008(a) 20.00
7973959 56.18002(b) 20.00
7973960 56.14100(b) 55.00
7973961 56.14100(b) 55.00
7973962 56.14100(b) 55.00
7973963 56.14130(h) 20.00
7973964 56.14100(b) 20.00
7973965 56.14107(a) 55.00
WEST 2000-202-M
7973968 56.14130(a)(3) 113.00
7973969 56.14107(a) 55.00
7973970 56.14100(d) 55.00
Total Penalty $1,046.00
Accordingly, the citations contested in these cases are
AFFIRMED as set forth above and Richard Seiffert Resources is
ORDERED TO PAY the Secretary of Labor the sum of $1,046.00 within
40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Paul A. Belanger, Conference & Litigation Representative, Mine
Safety & Health Administration, 2060 Peabody Road, Suite 610,
Vacaville, CA 95687 (Certified Mail)
Mr. Marcel Roy Bendshadler, P.O. Box 11561, Portland, OR 97211
(Certified Mail)
Mr. Richard E. Seiffert, Richard Seiffert Resources, P.O. Box
388, Banks, OR 97106 (Certified Mail)
RWM
ATTACHMENT
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
October 26, 2000
RICHARD E. SEIFFERT RESOURCES, : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 2000-165-RM
: Citation No. 7973945;
: 11/09/99
v. :
:
SECRETARY OF LABOR, : Bailey Quarry
MINE SAFETY AND HEALTH : Id. No. 35-03489
ADMINISTRATION (MSHA), :
Respondent :
DECISION
Before: Judge Manning
This case is before me on a notice of contest filed by
Richard E. Seiffert Resources ("Seiffert") against the Secretary
of Labor and the Mine Safety and Health Administration ("MSHA"),
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. � 801 et. seq. (the "Mine Act"). Seiffert
brought this case to contest the jurisdiction of the Secretary,
MSHA, and this Commission over its operations at the Bailey
Quarry. The citation at issue in this proceeding alleges a
violation of 30 C.F.R. � 41.11 because Seiffert failed to notify
MSHA when it opened the Bailey Quarry.
This case was initially set for hearing. Because there are
no factual disputes and the jurisdictional issues are more
amenable to a written presentation, I canceled the hearing at the
request of the parties and required them to brief the issues.
For the reasons set forth below, I find that MSHA has
jurisdiction to inspect the Bailey Quarry and to issue citations
for violations of its safety standards and regulations. I also
affirm Citation No. 7973945.
I. BACKGROUND
Seiffert operates the Bailey Quarry in Washington County,
Oregon. On November 9, 1999, MSHA Inspector David Brown
inspected the Bailey Quarry. At the time of his inspection, the
crushing plant was in operation, a haul truck was transporting
material from the lower pit area to the crushing plant, and this
material was being dumped in an area adjacent to the feeder for
the crushing plant. A track hoe was picking up and placing this
raw material into the crushing plant for processing and a dump
truck was transporting the finished product to the stock pile
area, which contained inventories of crushed and sized rock
products.
The Bailey Quarry consists of three areas. The upper level
contains crushing, screening, and processing equipment. The
crushing equipment includes a feeder, screening devices, crushing
devices, and connecting conveyors. The middle level contains
stockpiles of finished crushed product. The lower level is the
pit area where the raw material is excavated with a track hoe.
Inspector Brown observed a number of pieces of equipment being
used at the quarry that were not manufactured in the State of
Oregon, including a GMC haul truck, a Mack haul truck, a Komatsu
dozer, and various pieces of Caterpillar equipment.
II. SUMMARY OF THE PARTIES' ARGUMENTS
C. Secretary of Labor
The Secretary contends that the Bailey Quarry is a mine
subject to the jurisdiction of the Mine Act. She argues that the
quarry is a "coal or other mine," as that term is defined in
section 3(h)(1) of the Mine Act. Minerals are extracted from the
earth and then crushed and screened at the quarry site in
preparation for sale. The Secretary maintains that these
operations clearly fit within the cited definition. She points
to the fact that this definition includes the milling of
minerals. According to the Secretary, the crushing and screening
operations at the quarry qualify as mineral milling under this
definition. Thus, she contends that the extraction and milling
operations at the quarry are included within the definition of
"coal or other mine."
The Secretary next argues that the Bailey Quarry meets the
requirements of section 4 of the Mine Act because the products
produced at the quarry enter or affect commerce. The Secretary
emphasizes that the language of the Mine Act and the Mine Act's
legislative history demonstrates that Congress intended to
exercise its full power under the commerce clause of the U.S.
Constitution when it enacted the Mine Act. The Secretary also
maintains that the Bailey Quarry affects interstate commerce
because it uses equipment manufactured outside the State of
Oregon. Finally, she contends that the quarry affects interstate
commerce because the Mine Act was passed to reduce the number of
mining accidents and mining-related diseases in the nation's
mines. She argues that disruption of a mine's production because
of accidents and mining-related diseases affects interstate
commerce.
D. Richard E. Seiffert Resources
Seiffert argues that the federal government does not have
jurisdiction to regulate operations at the Bailey Quarry because
the quarry is located on private property. Because Seiffert's
argument in this case is about 145 pages in length, I can only
briefly summarize its major points. Seiffert contends that MSHA
has "jurisdictional authority within the District of Columbia and
federal territories only with regard to activities that occur
specifically `within' federal possessions located inside the
territorial boundaries of Oregon state." (Motion to Dismiss at
4). It further contends that, because the quarry is not located
on federal property, MSHA does not have territorial jurisdiction
to inspect it. In support of this position, Seiffert cites a
number of authorities including the U.S. Constitution, the
Federalist Papers, court cases from the 19th and 20th centuries,
and a report, apparently prepared in 1957 by the federal
government in conjunction with state Attorneys General, that
discusses federal and state jurisdiction over federal lands
within the states.[3] Seiffert cites other authorities as well.
Its brief includes a discussion of the development of property
rights from 15th century England to present day America and a
discussion of Federal judicial authority from the colonial period
to the present. Seiffert also filed a supplemental brief on
October 23, 2000, which raises additional arguments.
III. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Jurisdiction
Seiffert's arguments center around its interpretation of
Federal jurisdiction. Its position, however, is based on a
misinterpretation of the U.S. Constitution and the development of
constitutional law over the past 60 years. I find that Congress
granted the Secretary of Labor jurisdiction under the Mine Act to
conduct health and safety inspections at privately owned mines
within the states as long as the activities at the mines affect
interstate commerce.
Seiffert places great reliance on the Report discussed
above. The Report discusses Article I, Section 8, Clause 17 of
the U.S. Constitution. That provision of the Constitution
concerns the District of Columbia and lands over which the
Federal government exercises exclusive jurisdiction. It
provides, in pertinent part, that "Congress shall have power to
... exercise exclusive legislation in all cases whatsoever, over
such District ... and to exercise like authority over all places
purchased by the consent of the legislature of the state in which
the same shall be, for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings..." Under this
provision of the constitution, the Federal government cannot
exercise exclusive jurisdiction over an area within a state
without the consent of that state's legislature. This provision
was designed to prevent the Federal government from purchasing
lands within a state and displacing the state's authority without
the consent of the state legislature. It does not deal with
jurisdictional issues on private lands or jurisdictional issues
on lands owned by the federal government where the federal
government has neither sought nor been granted exclusive
jurisdiction by the state legislature.
The federal government can acquire property in a state, but
it can only acquire jurisdiction over that property if both the
state and federal governments agree to that transfer. See, e.g.,
Paul v. United States, 371 U.S. 245, 264 (1963). Otherwise, the
United States does not take jurisdiction over the property and is
merely a proprietor of the property. If the United States has
jurisdiction over property in a state, it is often referred to as
a "federal enclave" and state law does not apply to that
property. For example, in Lord v. Local Union No. 2088, 646 F2d.
1057, 1063 (5th Cir. 1981), cert. denied, 458 U.S. 1106, the
court held that Florida's right-to-work law did not apply to a
federal enclave in that state. That federal enclave had been
previously established with the consent of the Florida
legislature.
Seiffert applies the concepts in the Report to all lands
within a state, not just federally owned lands. For example, the
Report, as quoted by Seiffert, states that the "federal
government cannot, by unilateral action on its part, acquire
legislative jurisdiction over any area within the exterior
boundaries of a state." (Brief in Support of Motion to Dismiss
at 20). Seiffert uses that sentence to support its position that
the Secretary lacks territorial jurisdiction over the Bailey
Quarry. Article I, Section 8, Clause 17 of the Constitution,
however, merely provides that federal enclaves cannot be created
without the consent of the host state. It does not pertain to
federal regulation of businesses located on private property.
The Report merely discusses the implementation of that clause of
the constitution to federal lands within a state. Thus, the
above quote from the Report is taken out of context by Seiffert.
More importantly, the words "legislative jurisdiction" in
the quote refer to exclusive legislative jurisdiction as
specified in Article I, Section 8, Clause 17. The Secretary is
not contending that the federal government has exclusive
jurisdiction over the Bailey Quarry or that the quarry is a
"federal enclave." Laws passed by the State of Oregon are also
applicable to the Bailey Quarry. Thus, the federal government
has neither sought nor acquired "legislative jurisdiction" over
the Bailey Quarry. Thus, I conclude that Article I, Section 8,
Clause 17 of the constitution and the Report are irrelevant to
this proceeding.
Seiffert's other arguments also revolve around Article I,
Section 8, Clause 17 of the U.S. Constitution. Seiffert cites
criminal cases in which the issue is whether federal or state
criminal statutes apply to federal military bases. For example,
in United States v. Lovely, 319 F2d 673 (4th Cir. 1963), the
defendant was convicted of sexual assault on a military
reservation under a federal criminal statute. The defendant
attempted to have his conviction reversed on the basis that
jurisdiction over the reservation had not been properly ceded to
the federal government by the state. Seiffert cites numerous
cases discussing jurisdictional issues on federally owned lands
or on ships at dock. (Motion to Dismiss 4-6; Brief in Support of
Motion to Dismiss 11-20, 21-30).
From these cases, Seiffert reaches the conclusion that
"federal jurisdiction extends only over the areas where it
possesses the power of exclusive jurisdiction..." (Brief in
Support of Motion to Dismiss 11). It believes that "to hold
otherwise would destroy the purpose, intent, and meaning of the
entire Constitution for the United States of America." Id.
Seiffert believes that these principles were made clear in Unites
States v. Bevans, 16 U.S. 336 (1818) and have been followed by
federal courts since that time. For example, in Fort Levenworth
R. Co. v. Lowe, 114 U.S. 525 (1885), the court held the "consent
of the states to purchase lands within them ... is essential,
under the constitution, to transfer to the [federal] government,
with the title, of political jurisdiction and dominion." Id. at
531. "Where lands are acquired without such consent, the
possession of the United States ... is simply that of an ordinary
proprietor ... subject to the legislative authority and control
of the states equally with the property of private individuals."
Id.
In its supplemental brief, Seiffert set forth additional
arguments that focus on jurisdiction over federal lands. It
cites 40 U.S.C. � 255, entitled "Approval of Title Prior to
Federal Land Purchases..." for the proposition that, because the
federal government did not obtain title to the Bailey Quarry,
MSHA must obtain the approval of the Governor of Oregon to
"`operate' its scheme of warrantless inspections upon private
property located within the external boundaries of Oregon...."
(Supplemental Brief 2). It also makes broad constitutional
arguments based on the relationship between the federal
government, state governments, and the rights of citizens. For
example, it cites cases in which the Supreme Court struck down
the authority of the federal government to require states to
administer federal regulatory programs. See New York v. U.S.,
505 U.S. 144 (1992); Printz v. U.S., 521 U.S. 98 (1997).
Based on the Report and the cases cited in its briefs,
Seiffert makes the following argument that is at the heart of its
case:
Federal jurisdiction results only from a
conveyance of state jurisdiction to the
federal government for lands owned or
otherwise possessed by ... the United States,
and this federal jurisdiction is extremely
limited in nature. There is no federal
jurisdiction if there is no grant or cession
of jurisdiction by the state to the federal
government. Therefore, federal territorial
jurisdiction exists only in Washington, D.C.,
the federal enclaves within the states, and
the territories and possessions of the ...
United States.
(Brief in Support of Motion to Dismiss 14-15).
These cases and the other cases discussed in Seiffert's
brief discuss a very narrow issue: federal and state jurisdiction
on federal enclaves and other federal property. They do not
consider the power of the federal government to regulate
businesses, such as mines on private property. While it is true
that the federal government can exercise exclusive legislative
jurisdiction only with the consent of the states, it can exercise
nonexclusive jurisdiction on private property under the commerce
clause of the Constitution: Article I, Section 8, Clause 3.
That provision states that "Congress shall have power to ...
regulate commerce with foreign nations, and among the several
states, and with the Indian Tribes...." As stated in section 4
of the Mine Act, the Mine Act was enacted under the authority of
the commerce clause. Since the early 1940s, the commerce clause
has been interpreted very broadly by the Supreme Court and the
inferior courts. For example, in Wickard v. Filburn, 317 U.S.
111, 125 (1942), the Supreme Court held that the federal
government's power to regulate private economic activities under
the commerce clause is not confined to the regulation of commerce
between the states, but extends to a local activity if "it exerts
a substantial economic effect on interstate commerce...." "Even
activity that is purely intrastate in character may be regulated
by Congress, where the activity, combined with like conduct by
others similarly situated, affects commerce among the States...."
Fry v. United States, 421 U.S. 542, 547 (1975). The commerce
clause is an independent and distinct source of federal
jurisdiction that is not based on the ownership of land.
Congress and the courts have determined that mines,
including quarries, exert a substantial economic effect on
interstate commerce. In Donovan v. Dewey, 452 U.S. 594, 602
(1981), the Supreme Court stated:
As an initial matter, it is undisputed that
there is a substantial federal interest in
improving the health and safety conditions in
the nation's underground and surface mines.
In enacting the statute, Congress was plainly
aware that the mining industry is among the
most hazardous in the country and that the
poor health and safety record of this
industry has significant deleterious effects
on interstate commerce.
The Court relied upon the legislative history and the preamble to
the Mine Act in reaching this conclusion. The Court determined
that MSHA had the authority to conduct a warrantless inspection
of a stone quarry that was located on private property in
Wisconsin.
The circuit courts have uniformly recognized MSHA's
authority to inspect mines under the commerce clause. For
example, in U.S. v. Lake, 985 F3d 265, 268 (6th Cir. 1993), the
court of appeals held that "the language of the [Mine] Act, its
broad remedial purpose, and its legislative history combine to
convince us that Congress intended to exercise its full power
under the Commerce Clause." I conclude that the arguments
presented by Seiffert are irrelevant to this case because the
Mine Act was enacted under the authority granted Congress under
the commerce clause. Jurisdiction under the Mine Act is not
dependent upon the authority of Congress to establish the
District of Columbia and other federal enclaves under Article I,
Section 8, Clause 17. [4] In addition, the Mine Act does not
require states to enact or administer any of the enforcement
provisions of the Mine Act. Consequently, its argument that
Congress cannot compel the State of Oregon to enforce the Mine
Act is beside the point. I reject all other arguments presented
by Seiffert that are not specifically discussed herein.
For the reasons set forth below, I find that the Bailey
Quarry is a mine and that its operations affect commerce. An
analysis of Mine Act jurisdiction starts with 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, excavations, ...
structures, facilities, equipment, machines, tools, or other
property ... on the surface or underground, used in, or to be
used in, or resulting from, the work of extracting such minerals
from their natural deposits, ... or used in, or to be used in,
the milling of such minerals...." 30 U.S.C. � 802(h)(1). The
undisputed facts demonstrate that the Bailey Quarry clearly fits
within this definition. Minerals are extracted from the earth at
the quarry and are milled at the site for sale to customers. The
Bailey Quarry is a "coal or other mine" as that term is defined
in the Mine Act.
Section 4 of the Mine Act, entitled "Mines Subject to Act,"
provides that "[e]ach coal or other mine, the products of which
enter commerce, or the operations or products of which affect
commerce, and each operator of such mine, and every miner in such
mine shall be subject to the provisions of this Act." 30 U.S.C.
� 803. The facts set forth above demonstrate that the Bailey
Quarry affects interstate commerce. The machinery and equipment
used to produce the products at the quarry were manufactured
outside the State of Oregon and the products of the quarry are
sold to customers, which thereby affects interstate commerce. I
conclude that Seiffert's Bailey Quarry is subject to the
provisions of the Mine Act. Consequently, the Secretary has the
authority to conduct warrantless inspections of the Bailey
Quarry, to issue citations and orders for violations of her
safety and health regulations, and to propose civil penalties for
those violations.
B. Citation No. 7973954
Citation No. 7973954 alleges a violation of 30 C.F.R. �
41.11 because the operator failed to notify MSHA within 30 days
that it opened a new mine. Inspector Brown determined that the
violation was not serious, was not of a "significant and
substantial" nature, and was the result of Seiffert's low
negligence. Section 41.11 provides, in part, that within "30
days after ... the opening of a new mine ... the operator of a
coal or other mine shall, in writing, notify the appropriate
district manager of [MSHA] of the legal identity of the
operator...."
The undisputed facts establish a violation. Seiffert opened
a new mine and failed to notify MSHA of its existence within 30
days after it opened. Accordingly, the Secretary established the
violation. I affirm the citation as written by Inspector Brown.
IV. ORDER
For the reasons set forth above, I hold that the Secretary
of Labor has jurisdiction, as authorized by the Federal Mine
Safety and Health Act of 1977, to conduct warrantless inspections
of the Bailey Quarry in Washington County, Oregon, owned and
operated by Richard E. Seiffert Resources. For the same reasons,
I hold that this Commission has jurisdiction over this case under
section 113 of that Act. 30 U.S.C. � 823. Citation No. 7973954
is AFFIRMED and the notice of contest filed by Richard E.
Seiffert Resources in this proceeding is DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Mr. Richard E. Seiffert, Richard Seiffert Resources, P.O. Box
388, Banks, OR 97106 (Certified Mail)
Eugene Dayton Pringle, Jr., c/o 12820 SE Park Street, Vancouver,
WA 98683 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203-1954
(Certified Mail)
RWM
**FOOTNOTES**
[3]: The report that Seiffert relies upon is entitled,
Jurisdiction Over Federal Areas Within the States: Report of the
Interdepartmental Committee for the Study of Jurisdiction Over
Federal Areas Within the States (the "Report"). Seiffert did not
provide a citation for this report. I have relied upon
Seiffert's extensive quotations from the Report in analyzing the
arguments presented in its brief.
[4]: Seiffert also refers to Article IV, Section 3, Clause
2 of the Constitution. That provision provides that "Congress
shall have power to dispose of and make needful rules and
regulations respecting territorial or other property belonging to
the United States; and nothing in this Constitution shall be so
construed as to prejudice any claims of the United States or any
particular state." This provision also deals with federal lands
and, for the same reasons, it has no bearing on this case.