Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ames Construction, Inc v. Federal Mine Safety and Health Review Commission and Secretary of Labor

April 17, 2012

AMES CONSTRUCTION, INC.,
PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY OF LABOR, RESPONDENTS



On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission

The opinion of the court was delivered by: Williams, Senior Circuit Judge:

Argued March 5, 2012

Before: GARLAND, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

This case arises out of a tragic accident in which William Kay, an 81-year-old truck driver for Bob Orton Trucking Co., was killed by a large pipe that fell off of his truck during a delivery of such pipes to the Kennecott Utah Copper Mine. Petitioner Ames Construction, Inc. is an independent contractor hired by the mine's owner, Kennecott Utah Copper Corporation, to construct a tailings dam; it was responsible for receiving deliveries of materials such as the pipes in question. It is uncontested that Kay himself was negligent and equally uncontested that Ames was not his employer. Neither the Secretary nor the Commission relies on any finding of negligence on the part of Ames. The Mine Safety and Health Administration ("MSHA") cited

Ames for a violation of the Federal Mine Safety and Health Act of 1977, Pub. L. No. 95-164, 91 Stat. 1290 (codified at 30 U.S.C. §§ 801 et seq.).

On review, the Federal Mine Safety and Health Review Commission upheld the citation. It found that Ames, though not the principal operator of the mine, "supervised a process, the unloading of pipes," and that as a supervisor of that process it could be liable without fault for violations occurring in the process. See Secretary of Labor v. Ames Construction, Inc., Docket No. WEST 2009-693-M, 2011 WL 3794313, at *4-5 (FMSHRC July 25, 2011). Ames challenges that conclusion both as a matter of statutory interpretation and on the facts. Though the statutory structure invites considerable confusion, we find the Commission's conclusion consistent with the act, and we find substantial evidence in support of its necessary factual findings.

We first summarize the facts and procedural history. On October 29, 2008 Kay arrived at the Kennecott Tailings Facility to deliver nine large (50-foot long, 3000-pound) pipes to be used in the tailings dam that Ames was building. Pursuant to Kennecott's internal policy and an MSHA order relating to Kennecott's use of unbermed roads, Kay and his truck were escorted by three Ames employees to an unloading location, where he was told to "wait right here" with one of the Ames employees (Juan Florez) while the others went to get a forklift. A safety document from the pipe manufacturer, found in Kay's truck, warned that the straps on the pipes should not be loosened or removed until the load had been checked for stability. At a point when Florez's attention was on the road, Kay began loosening the straps on the truck; one of the pipes fell and crushed him.

An MSHA inspector investigated the accident and cited Ames for violating 30 C.F.R. § 56.9201, which prohibits the unloading of supplies in a hazardous manner. MHSA Citation No. 6328009 (Dec. 11, 2008), J.A. 1. Although the ALJ who initially considered Ames's challenge sustained the citation on the theory that Orton (Kay's employer) was Ames's subcontractor, see Secretary of Labor v. Ames Construction, Inc., 32 FMSHRC 347, 350-53 (2010), we need not dwell on that theory, as the Secretary repudiated it before the Commission. The latter, as we said, affirmed on the view that as supervisor of "a process, the unloading of pipes," Ames was liable without regard to fault for violations occurring in that process. Ames petitioned this court for review under 30 U.S.C. § 816(a)(1).

Section 110(a) of the act creates liability for operators of coal or other mines:

The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this chapter, shall be assessed a civil penalty by the Secretary. . .

30 U.S.C. § 820(a). Section 3(d) of the act defines who is an operator:

"operator" means [1] any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or [2] any independent contractor performing services or construction at such mine.

30 U.S.C. § 802(d) (bracketed numbers added). In Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006), we adopted a regulatory usage characterizing the first set of operators--those who operate, control, or supervise a mine--as "production-operators." Id. at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.