Secretary of Labor v. Nugent Sand Company

Plain-English summary

Nugent Sand operated a Kentucky sand and gravel plant where one lightning arrestor protecting mine powerlines was inoperable. The arrestor and related high-voltage equipment belonged to Owen Electric Cooperative, which did not allow Nugent Sand to inspect or repair them. Judge Thomas McCarthy held that a mine owner is liable without fault for safety violations at its mine, including conditions involving a contractor's or utility's equipment. He affirmed the non-significant-and-substantial citation for failing to protect powerlines against lightning. The judge assessed the proposed $121 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12065
• Outcome: Citation No. 9424742 was affirmed as issued, with a $121 penalty.
• Key point: A production operator remains liable for a Mine Act violation on mine property even when a utility owns and exclusively maintains the cited equipment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004

Telephone No.: (202) 434-9900 / Fax No.: (202) 434-9949

September
25, 2020

SECRETARY OF LABOR MINE SAFETY
AND HEALTH ADMINISTRATION (MSHA),

Petitioner

v.

NUGENT SAND COMPANY,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. KENT 2020-0039

A.C. No. 15-18536-505478

Mine: Warsaw Plant

DECISION
AND ORDER

Before: Judge McCarthy

This case is before
the undersigned upon a Petition for the Assessment of Civil Penalty under § 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The
Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a
notice of limited appearance with the penalty petition. It is ORDERED that
the CLR be accepted to represent the Secretary. Cyprus Emerald Res. Corp. ,
16 FMSHRC 2359 (Nov. 1994).

The Secretary
and the Respondent both filed Motions for Summary Judgment pursuant to
29 C.F.R. § 2700.67. This matter concerns a single citation, Citation
No. 9424742, issued to Respondent on September 11, 2019, for failing to protect
powerlines against lightning. 30 C.F.R § 56.12065. (“Powerlines, including
trolley wires, and telephone circuits shall be protected against short circuits
and lightning.”).

Based on an
agreement between the parties to file cross-motions for summary judgment and
the stipulated facts, [1]
the undersigned finds that there are no genuine issues of material fact. For
the reasons set forth below, the undersigned concludes that the Secretary is
entitled to a summary decision as a matter of law, affirms the citation and
assesses a penalty of $121.00 against Nugent Sand Company.

I. STIPULATIONS

The parties submitted the following joint stipulations, which have been
accepted into the record:

1.         Warsaw Plant (Mine ID 15-18536) is a “mine” as defined in §
3(h) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter
“the Mine Act”), 30 U.S.C. § 802(h).

2.         Nugent
Sand Company owns, operates, and controls Warsaw Plant. Nugent Sand Company is
an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 802(d).

3.         At all times relevant to this case, the products of the Warsaw
Plant entered commerce, or the operations or products thereof affected
commerce, within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C.
§ 803.

4.         Operations
of Nugent Sand Company at the Warsaw Plant are subject to the jurisdiction of
the Mine Act.

5.         This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judge pursuant to
Sections 105 and 113 of the Mine Act.

6.         Warsaw
Plant is a sand and gravel processing plant located in Gallatin County,
Kentucky. As part of its mining process at Warsaw Plant, Nugent Sand Company
utilizes several pieces of electrical equipment including conveyor belts,
screens, sand screws, and cone crushers.

7.         Electrical
power is supplied to Warsaw Plant by three-phase 7200 volt powerlines. Each of
these 7200 volt powerlines is protected against lightning by a lightning
arrestor. On each 7200 volt powerline, the lightning arrestor is located
immediately prior to the powerline’s connection to a transformer. No additional
lightning protection is provided on the 7200 volt powerlines at the mine
facility.

8.         Each
7200 powerline connects to a transformer where the voltage is stepped down from
7200 to 480 volts.

9.         From
each transformer, 480 volt powerlines supply power to the plant’s electrical
equipment. No additional lightning protection is provided on the 480 volt
powerlines. Rather, the 480 volt powerlines are protected against lightning by
the lightning arrestors on the 7200 powerlines.

10.       The
7200 volt powerlines, lightning arrestors, transformers, and 480 volt
powerlines are all located on mine property.

11.       The
480 volt powerlines are owned by Nugent Sand Company. Nugent Sand Company
contends, and the Secretary neither admits nor denies, that any maintenance
performed on the 480 volt powerlines is done under the auspices of Owen
Electric Cooperative, Inc.

12.       The
7200 volt powerlines, lightning arrestors, and transformers are owned and
maintained by Owen Electric Cooperative, Inc.

13.       Owen
Electric Cooperative, Inc. is a public utility. Nugent Sand Company contracts
with Owen Electric Cooperative, Inc. to supply electricity to Warsaw Plant. Owen
Electric Cooperative, Inc. has not authorized Nugent Sand Company to perform
repairs on its 7200 volt powerlines, lightning arrestors, or transformers.

14.       On
September 11, 2019, the lightning arrestor on one of the three-phases of the
7200 volt powerlines was blown and therefore inoperable. As a result, that
phase of the 7200 volt powerlines, the transformer it connected to, and the 480
volt powerline on the secondary of that transformer were not protected against
lightning. The lightning arrestors on the other two phases of the 7200 volt
powerlines were operable and therefore those two phases, the transformers that
each of those phases connected to, and the two 480 volt powerlines secondary of
those transformers were protected against lightning.

15.       On
September 11, 2019, Mine Safety and Health Administration Inspector Steaven
Caudill (“Inspector Caudill”) issued Citation No. 9424742 for a violation of
mandatory safety standard 30 C.F.R. § 56.12065. A copy of Citation No. 9424742
was served on an authorized agent of Nugent Sand Company. At all relevant
times, Inspector Caudill was acting in an official capacity and as authorized
representative of the Secretary of Labor.

16.       On September
11, 2019, Nugent Sand Company informed Owen Electric Cooperative, Inc. of the
blown lightning arrestor. Employees of Owen Electric Cooperative, Inc. replaced
the blown lightning arrestor. After the blown lightning arrestor was replaced,
on September 12, 2019, Inspector Caudill terminated Citation No. 9424742.

17.       Nugent
Sand Company contends that it is not liable for the violation. To the extent
Nugent Sand Company is liable for the violation, the parties agree and
stipulate:

a.                
The violation was not significant and substantial.

b.               
The violation was unlikely to result in an injury or illness.

c.                
If an injury or illness were to occur as a result of the violation, the
injury or illness could reasonably be expected to be permanently disabling.

d.               
One person was affected by the cited hazard.

e.                
Nugent Sand Company’s negligence was low.

18.       Payment
of the total proposed penalty of $121.00 for Citation No. 9424742 will not
affect Nugent Sand Company’s ability to continue in business.

19.       The
certified copy of the R-17 Assessed Violation History Report, attached as
Exhibit 1, accurately reflects Nugent Sand Company’s violation history at
Warsaw Plant for the time period of September 11, 2016 to September 11, 2019.

II. Background

Nugent
Sand Company (“Nugent Sand”) owns and operates the Warsaw Plant, a sand and
gravel processing plant in Gallatin County, Kentucky. JS at ¶¶ 1-6. The Warsaw
Plant is a “mine” as defined in § 3(h) of the Federal Mine Safety and
Health Act of 1977, as amended (“Mine Act”). 30 U.S.C. § 802(h); JS
at ¶ 1. As relevant here, the Warsaw Plant entered commerce, or the operations
or products thereof affected commerce, within the meaning and scope of section
4 of the Mine Act. 30 U.S.C. § 803; JS at ¶ 3. Consequently,
operations of Nugent Sand at the Warsaw Plant are subject to the jurisdiction
of the Mine Act. JS at ¶ 5.

On the mine
property, three-phase, 7200-volt powerlines supply electrical power to the
Warsaw Plant. JS at ¶ 7. Each 7200-volt powerline connects to a transformer
where the voltage is stepped down, and 480-volt powerlines run from the
transformer to the plant’s electrical equipment. Id. at ¶ 7-8. Immediately
prior to each 7200-volt powerline’s connection to a transformer, each powerline
has a lightning arrestor. Id. . at ¶ 7. This is the only lightning
protection on the 7200-volt powerlines, and there is no additional lightning
protection on 480-volt powerlines from the transformer to the plant’s
electrical equipment. Id. at ¶ 9.

Although the
480-volt powerlines from the transformer to the plant are owned by Nugent Sand,
the 7200-volt powerlines, lightning arrestors, and transformer are all owned
and maintained by Owen Electric Cooperative, Inc. (“Owen Electric”), a public
utility that contracts with Nugent Sand. Id. at ¶¶ 12-13. Nugent Sand
has no authority to perform repairs on the 7200-volt powerlines, lightning
arrestors, or transformers. Id. at ¶ 13.

On September 11,
2019, the lightning arrestor on one of the three phases of the 7200-volt
powerlines was inoperable. Without an operable lightning arrestor, that phase
of the 7200-volt powerline as well as its transformer and a 480-volt powerline
were not protected against lightning. Id. at ¶ 14. On that same date, MSHA
Inspector Steaven Caudill issued Citation No. 9424742 for a violation of
mandatory safety standard 30 C.F.R. § 56.12065. Id. at ¶ 15.

That same day, Nugent
Sand notified Owen Electric of the inoperable lightning arrestor. On September
12, 2019, Owen Electric replaced the inoperable lightning arrestor; and
Inspector Caudill terminated the Citation. Id. at ¶ 16.

The parties
stipulate that the alleged violation was not significant and substantial and was
unlikely to result in an injury or illness; that the expected injury or illness
would be permanently disabling and would affect one person; and that Nugent
Sand’s negligence was low. Id. at ¶ 17. The parties also stipulate
that the total proposed penalty of $121.00 would not affect Nugent Sand’s
ability to continue in business. Id . at ¶ 18.

III.
Legal Principles and Analysis

Under Commission Rule 67(b), 29 C.F.R. § 2700.67(b), a motion for summary decision
shall be granted only if the entire record, including the pleadings,
depositions, answers to interrogatories, admissions, and affidavits, show 1)
that there is no genuine issue as to any material fact, and 2) that the moving
party is entitled to summary decision as a matter of law. Based on the parties’
agreement to file cross-motions for summary judgment and the stipulated facts,
the undersigned concludes that there are no genuine issues of material fact and
that this matter is ripe for summary judgment. The parties do not dispute the
existence or the particulars of the violation itself. [2]
Consequently, the Secretary and the Respondent agree that the sole issue is
whether, as a matter of law, the Respondent is liable for the violation.

As an initial
matter, the 7200-volt powerlines, the transformer, and the lightning arrestors
are all on mine property, JS at 2, and subject to the regulations of the Mine
Act. Old Dominion Power Co. , 6 FMSHRC 1886, 1890 (Aug. 1984) ( rev’d
on other grounds 772 F.2d 92 (4th Cir. 1985)).

However,
despite the violation occurring on its mine, Nugent Sand contends that it is
not liable for the violation. Nugent Sand argues that it is not liable for the
violation because Owen Electric owned and exercised control over the 7200-volt
powerlines and lightning arrestors. [3]
Resp’t Mot. for Summ. J. at 1 ( “The transformers[] and the associated
lightning arrestors[] are not the property of Nugent Sand” and they are
“maintained and serviced by Owen Electric . . . and Owen [Electric]
does not authorize Nugent Sand . . . or any contractors
. . . to service, maintain, or check them.”). The Secretary argues,
in part, that Nugent Sand is strictly liable for the violation occurring at the
mine. Sec’y Mem. at 6-7 (citing cases).

Strictly
speaking, this is a question of vicarious liability, and not strict liability. Strict
liability operates to find liability even where the actions in question are not
negligent, while vicarious liability operates to find liability even where the
actions in question were done by another party. See W. Fuels-Utah v. FMSHRC ,
870 F.2d 711, 713 (D.C. Cir. 1989) (“The general rule . . . is that a
person is not liable for a harm done unless he caused it by his action ( actus
reus  ), and did so with a certain intent ( mens rea  ). Strict
liability alters this general rule by eliminating the requirement of  mens
rea;  one may then be punished for acting in a forbidden way, even if
one was without any particular intent, such as willfulness or
negligence. . . Vicarious liability, on the other hand, alters the
general rule by holding a person liable for the act of another—that is, by
attenuating the requirement of an  actus reus .”). Case law involving
the Mine Act often elides the two concepts of strict liability and vicarious
liability. See, e.g. , Allied Prods. Co. v. FMSHRC , 666 F.2d
890, 894 (5th Cir. 1982) (discussing strict liability and stating that “[i]f
the act or its regulations are violated, it is irrelevant whose act
[precipitated] the violation”); Cyprus Indus. Minerals Co. v. FMSHRC , 664
F.2d 1116, 1120 (9th Cir. 1981) (“Mine owners are strictly liable for the
actions of independent contractor violations under” the Mine Act.).

Therefore, the
question is whether Nugent Sand is vicariously liable for a violation occurring
under the control of Owen Electric while operating on the mine. This question
must be answered in the affirmative. For although the case law often elides the
concepts of strict and vicarious liability, the case law is clear as to the liability
of mine operators for actions done by third parties on the mine. W.
Fuels-Utah , 870 F.2d 711 at 713; Allied Prods. Co. v. FMSHRC ,
666 F.2d at 894; Cyprus Indus. , 664 F.2d at 1120. Not only is a
mine operator vicariously liable for the actions of an independent contractor,
but also for the acts of unknown third parties. Miller Mining Co., Inc. v.
FMSHRC , 713 F.2d 487, 491 (9th Cir. 1983) (“It is of no consequence that [the
operator] may have been the innocent victim of an unrelated party’s desire, for
whatever reason, to get the mine back in production. The Fifth Circuit recently
recognized the inherent danger of mines, and held any failure to comply with a
regulation under the Act would result in a citation to the operator. Imposing a
kind of strict liability on employers to ensure worker safety, the court
pointed out there are no exceptions for fault, only harsher penalties for
willful violations.” (citations omitted)). In short, “when a violation of a
mandatory safety standard occurs in a mine, the operator is automatically
assessed a civil penalty. When a violation occurs, a penalty follows.” Asarco,
Inc.-Nw. Mining Dept. v. FMSHRC , 868 F.2d 1195, 1197 (10th Cir. 1989); see
also Ames Constr., Inc. v. FMSHRC , 676 F3d 1109, 1112 (D.C. Cir. 2012) (“Where
supervision or control of a distinct aspect of the mining activity is farmed
out to a firm different from the principal production-operator, refusal to
apply the act’s liability without fault provision would thwart the act's
purposes.”); Sec’y of Labor v. Twentymile Coal Co. , 456 F.3d 151, 155
(D.C. Cir. 2006) ( Twentymile Coal II) (“[T]he owner of a mine is liable
without regard to its own fault for violations committed or dangers created by
its independent contractor .”), rev’g 27 FMSHRC 260 (Mar. 2006) ( Twentymile
Coal I ).

The case law
also speaks to the reasoning behind this vicarious liability. The Commission
has stated as follows:

It bears emphasis that the miners of an independent
contractor are invited upon the property of the mine owner to perform work
promoting the interests of the owner. A mine owner cannot be allowed to
exonerate itself from its statutory responsibility for the safety and health of
miners merely by establishing a private contractual relationship in which
miners are not its employees and the ability to control the safety of its
workplace is restricted.

Republic Steel Corp. , 1
FMSHRC 5, 11 (Apr. 1979). Although there is no evidence that Nugent Sand
maintains its contractual relationship with Owen Electric for the purposes of
avoiding liability, this relationship nonetheless does not absolve Nugent Sand
of its liability for actions occurring at the mine. [4]

Nugent Sand alleges
that it cannot be held liable for the actions of Owen Electric because Nugent
Sand did not exercise control over the transformers. Resp’t Mot. for Summ. J.
at 1 (“Owen [Electric] does not authorize Nugent Sand . . . to
service, maintain, or check” the transformers.). On at least two occasions, the
Commission has accepted such an argument; and on both occasions the Commission
was reversed on appeal. Twentymile Coal II , 456 F.3d 151; Brock v.
Cathedral Bluffs Shale Oil Co. , 796 F.2d 533 (D.C. Cir. 1986) ( Cathedral
Bluffs II) , rev’g 6 FMSHRC 1871 (Aug. 1984) ( Cathedral Bluffs I )
.

In Cathedral
Bluffs , the Commission held that the Secretary must satisfy the Secretary’s
own Enforcement Guidance in order to cite the owner-operator for violative
actions by an independent contractor. Cathedral Bluffs I , 6 FMSHRC at
1873. Discussing control, the Commission held that, under the Guidance, an
owner-operator can be found liable for the actions of an independent contractor
if there is a level of control that creates a “functional nexus” beyond a mere contractual
relationship. Id. at 1876. The Circuit Court for the District of
Columbia reversed the Commission’s decision. Cathedral Bluffs II , 796
F.2d at 539. Specifically, the D.C. Circuit ruled that the Guidance was a
policy and not a binding regulation. [5]
The D.C. Circuit further ruled that, because the Guidance was not binding, “the
Secretary retained his discretion to cite production-operators as he saw fit.” Id.
at 538.

The Commission
later applied the D.C. Circuit’s decision in Cathedral Bluffs II in
cases such as Mingo Logan . Mingo Logan Coal Co. , 19 FMSRHC
246 (Feb. 1997). In Mingo Logan , the Secretary cited both an independent
contractor and the mine owner-operator for the failure of an employee of the
independent contractor to have adequate training. In ruling that the
owner-operator could be held liable for the inadequate training of an employee
of an independent contractor, the Commission affirmed that “MSHA may hold Mingo
Logan, because of its operator status, strictly liable for all violations of
the Act that occur on the mine site, whether committed by one of its employees
or an employee of one of its contractors.” Id. at 249 (citing Cyprus
Indus. Minerals , 664 F.2d at 1119 (“Mine owners are strictly liable for the
actions of independent contractor violations.”); Bulk Transp. Servs., Inc. ,
13 FMSHRC 1354 (Sept. 1991) (“[T]he Act’s scheme of liability
. . . provides that an operator, although faultless itself, may be
held liable for the violative acts of its employees, agents and contractors.”)).

But Cathedral
Bluffs II was not the last time the D.C Circuit reversed the Commission on
this issue. In Twentymile Coal II , the D.C. Circuit reviewed the
Commission’s determination that the Secretary had abused her discretion when
she issued a citation for a mine owner-operator for the actions of an
independent contractor. As relevant here, the Commission ruled that citing the
owner-operator was an abuse of discretion because the independent operator was
in the best position to prevent the violation, the owner-operator did not have
“significant, continuing” involvement in the work that resulted in the
violation, and the owner-operator did not contribute to the violation, either
through action or significant omission. Twentymile Coal II , 456 F.3d at 154
(quoting Twentymile Coal I , 27 FMSHRC at 268-273). [6]

In rejecting
these arguments, the D.C Circuit made “relatively short work of the question of
the Secretary’s authority to cite owner-operators for violations committed by
their contractors.” Id. After reviewing case law, the D.C. Circuit affirmed
that “liability under the Mine Act is without regard to fault” and “the
argument that only an operator directly responsible for the violation
. . . can be held liable . . . must be rejected.” Id.
at 155 (quoting Int’l Union, United Mine Workers of Am. , 840 F.2d 77, 84
(D.C. Cir. 1988)).

For the same
reasons in Cathedral Bluffs II and Twentymile Coal II , the
undersigned rejects Nugent Sand’s argument that its lack of control insulated
it from liability.

The parties agree
there was a violation at the mine that Nugent Sand owns, operates, and
controls . JS at ¶ 2. Consequently, Nugent Sand is liable for the violation as
stated in the Citation.

IV.
Penalty Assessment

It
is well established that the Commission Administrative Law Judges assess
civil penalties de novo for violations of the Act. Section 110(i) of the Act
delegates to the Commission the “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the
duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a),
820(a). When an operator contests the proposed penalty, the Secretary petitions
the Commission to assess the proposed penalty. 29 C.F.R. § 2700.28. The Act
requires, that “in assessing civil monetary penalties, the Commission [ALJ]
shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the operator
charged, [3] whether the operator was negligent, [4] the effect on the
operator's ability to continue in business, [5] the gravity of the violation,
and [6] the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

In keeping
with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d
1147 (7th Cir. 1984). Once factual findings on the statutory penalty criteria
have been made, a judge’s penalty assessment for a particular violation is an
exercise of discretion, which is bounded by proper consideration of the
statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000). In exercising this discretion to
determine the amount of a penalty, the Commission has recognized that a judge
is not bound by the penalty proposed by the Secretary. Spartan Mining Co. ,
30 FMSHRC 699, 723 (Aug. 2008).

When
determining a proper assessment for this violation, the undersigned considered
the following stipulated facts: 1) the Respondent’s history of violations
of this standard in the 15 months prior to the accident (JS, Attach. 1 at 1);
2) the Respondent’s size as an operator who worked only 17,678 hours at
the mine in 2019 (MSHA, Mine Data Retrieval System , https://www.msha.gov/mine-data-retrieval-system
(searchable by mine name)); 3) the Respondent’s low level of negligence (JS
at ¶ 17); 4) that the penalty will not have an effect on the Respondent’s
ability to continue in business ( id. at ¶ 18); 5) that any injury or
illness would be unlikely and would be expected to result in permanently
disabling injuries affecting one person ( id. at ¶ 17); and 6) the timely
good-faith abatement ( id. at ¶ 16 (showing the termination of the
Citation the day following its issuance)).

Based upon the undersigned’s
consideration of the section 110(i) penalty criteria and the deterrent purposes
of the Act, the undersigned assesses a penalty of $121.00. This amount is the
result of an independent determination by the undersigned of the statutory
criteria and a penalty amount that would respond to the seriousness of the
violation and would deter future violations. American Coal Co. v. FMSHRC ,
933 F.3d 723, 728 (D.C. Cir. 2019).

III. CONCLUSION

For the foregoing reasons, the Respondent’s Motion for Summary Judgment
is DENIED , the Secretary’s Motion for Summary Judgment is GRANTED ,
and Citation No. 9424742 is AFFIRMED , as issued. It is further ORDERED
that the Respondent pay a total penalty of $121.00 within thirty days of this
order. [7]

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Megan A. Carrick

U. S. Department of Labor

Office of the Solicitor

618 Church Street

Suite 230

Nashville, TN 37219-2440

[email protected]

Damon E. Hughes

Nugent Sand Company

1833 River Road

P.O. Box 6072

Louisville, KY 40206

[email protected]

[1] In this Decision, “Sec’y Mem.” refers to the
Secretary’s Memorandum of Points and Authorities in Support of his Motion for
Summary Decision, “Resp’t Mot. for Summ. J.” refers to Respondent’s Motion for
Summary Judgement, and “JS” refers to the Joint Stipulations.

[2] Nugent Sand Company included a letter from Owen
Electric with its Motion for Summary Judgment.  Nugent Sand Company presents
this letter to address the gravity and level of negligence of the violation. However,
the parties have stipulated as to the levels of gravity and negligence, and
this letter does not contradict those stipulations. Consequently, this letter
does not present any genuine dispute over material facts. Anderson v.
Liberty Lobby , 477 U.S. 242, 248 (1986) (“Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.”).

[3] Nugent Sand Company also argues that it has a
grounding system that “provides protection to personnel,” but this argument
goes to the negligence and gravity of the violation, not the question of
liability. Resp’t Mot. for Summ. J. at 2.

[4] Moreover, the undersigned notes that Nugent Sand
could have used this contractual relationship to indemnity itself. See, e.g. ,
Consolidation Coal Co. , 26 FMSHRC 138, 139 (Mar. 2004); W-P Coal Co. ,
16 FMSHRC 1407, 1408 (July 1994).

[5] Even were Nugent to rely on the Enforcement Guidance
as a binding regulation, the Guidance permits the Secretary to cite an
owner-operator for the actions of an independent contractor when the
owner-operator’s miners are exposed to the hazard. Cathedral Bluffs II ,
796 F.2d at 245 (quoting 45 FR 44,497). Here, the parties have stipulated that one
miner would be affected by the hazard, and the Citation indicates that the
blown lightning arrestor “exposes employees around the plant to electrical
shock hazards and potential flash injuries.” Citation No. 9424742.

[6] It should also be noted that the administrative law
judge found that the owner-operator “did not have direct control over the cited
equipment.” Twentymile Coal I , 6 FMSHRC at 274 (quoting the ALJ
decision).

[7] Payment should be sent to: Pay.gov, a service of the
U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508 or, alternately, Mine Safety & Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390.