Old Dominion Power Company, Petitioner, v. Raymond Donovan, Secretary of Labor and the Federal Minesafety and Health Administration and the Federalmine Safety and Health Reviewcommission, Respondents.edison Electric Institute, Amicus Curiae, 772 F.2d 92 (4th Cir. 1985)

Old Dominion Power Company ("Old Dominion") petitions this Court to review and set aside the final decision of the Federal Mine Safety and Health Review Commission (the "Commission"), holding: (1) that Old Dominion was an independent contractor and an "operator" within the meaning of the Federal Coal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 801 et seq. (the "Mine Act"); (2) that Old Dominion breached Mine Safety and Health Administration ("MSHA") regulations when one of its employees was electrocuted on mine property; (3) that the issuance of a citation to Old Dominion one year after the incident was reasonably prompt; and (4) that a civil penalty of $1,000 was appropriate.¹  We reverse.

On January 22, 1980, James Harlow was electrocuted at an electrical substation near a coal mine in southwestern Virginia. Harlow was employed by Old Dominion, an electric utility serving southwestern Virginia.

Westmoreland Coal Company ("Westmoreland") leases the property where the fatality occurred, and has contracted with Elro Coal Corporation ("Elro") to operate the mine on the property. The substation is located on the property adjacent to a mine-access road and is segregated by a locked, chain link fence. Westmoreland built and owns the substation. It is composed of transformers, meters, power lines, and utility poles. Westmoreland purchases high-voltage power from Old Dominion and transmits it to the substation, which reduces the voltage to a lower voltage suitable for use by Elro in its mining operations. The only facilities owned by Old Dominion at the substation are those needed by the utility to determine how much electricity Westmoreland has purchased.

The sole revenue derived by Old Dominion from its relationship with Westmoreland is for the sale of electric power. Old Dominion does not perform any maintenance at the substation, or of the transmission or distribution lines leading to and from the substation. Old Dominion's employees install equipment to measure voltage and amperage for its meter, maintain the meter, and read it approximately once per month for purposes of billing.

On the afternoon of January 21, 1980, Westmoreland's electrical foreman energized the substation for the first time. The following morning he notified the superintendent of metering for Old Dominion that in his opinion the meter was not working properly. As a result of that conversation, Harlow and another electrical worker employed by Old Dominion drove to the substation. It was raining and foggy, and visibility was poor. They knew that the substation had been energized on the previous day. Nevertheless, Harlow concluded that it was de-energized, and his co-worker believed him. Harlow climbed the pole and was electrocuted when he touched the energized transformer.

MSHA was immediately notified of the fatality and investigated the accident. The Occupational Safety and Health Administration ("OSHA") also investigated the fatality but issued no citations. MSHA found that Old Dominion's employees violated 30 C.F.R. Sec. 77.704, a mandatory safety standard promulgated under the Mine Act, by working on high-voltage lines without de-energizing and grounding them.² 

Questions then arose as to which party MSHA should cite.³  Initially, MSHA cited Elro. Later, on April 3, 1980, MSHA reissued the citation to Westmoreland. Finally, on January 19, 1981, nearly one year after the accident, the citation was modified to name Old Dominion as the operator instead of Westmoreland.

Old Dominion contested the citation, asserting that: (1) it was neither an "operator" nor an "independent contractor" as defined by the Mine Act; (2) it was not subject to the Mine Act; (3) the changes in policy and rules which designated Old Dominion as an "operator" or "independent contractor" were not authorized by the statute, were not properly adopted, and were not constitutional; and (4) the citation was not timely issued.

A hearing was then held before an administrative law judge ("ALJ") on April 22, 1981. The ALJ rejected each of Old Dominion's arguments and, finding that Old Dominion had been negligent in this case, ordered it to pay a $3,000 civil penalty.

Thereafter, the Commission granted Old Dominion's petition for review. On August 29, 1984, a majority of the Commission affirmed the ALJ's decision on all points, except it reduced the civil penalty from $3,000 to $1,000. The Commission ruled that the electrical substation is part of the coal mine within the Mine Act definition of a "mine." Noting that there was no dispute that mandatory safety standard 30 C.F.R. Sec. 77.704 had been violated, the Commission concluded that Old Dominion is an independent contractor performing services, within the meaning of Sec. 3(d) of the Mine Act, 30 U.S.C. § 802(d). Rejecting Old Dominion's argument that OSHA, and not MSHA, has regulatory authority over the substation, the Commission held that the Secretary has the discretion to determine, as he did here, that the Mine Act applies rather than the Occupational Safety and Health Act (the "OSH Act"). The Commission likewise determined that the Secretary's regulation defining "independent contractor" was not applied in an arbitrary and capricious manner. Moreover, it concluded that the Secretary had satisfied the statutory requirement that a citation be issued with "reasonable promptness." Finally, the Commission held that the record did not support the ALJ's decision that Old Dominion was negligent and reduced the penalty to $1,000.

Chairperson Collyer dissented, finding that Old Dominion was merely a vendor of electricity and not an "operator" under the Mine Act. She argued that Old Dominion was not "providing services" to Westmoreland or Elro at the substation as required under Sec. 3(d) of the Mine Act so as to transform the utility into an "operator." In Chairperson Collyer's view, Old Dominion installed its meter not to "provide services" to the mine, but solely to measure the quantity of electricity that it, as a vendor, sold to the mine. She noted that the utility would not be involved in repair and restoration of power at the substation after an industrial accident or weather damage unless there were a problem involving the metering equipment. Relying on the legislative history of the Mine Act, Chairperson Collyer asserted that Congress intended that the only contractors who could be held liable were those having some "continuing presence" at a mine site. She criticized the majority for providing no basis for distinguishing the utility from other vendors, such as the Coca Cola man who comes onto mine property to refill the Coke machine in the office and the Xerox service representative who comes onto mine property to install, maintain, repair and replace copier equipment in the mine office used for mine plans, shift assignments, and the like.

Old Dominion petitions for review.

On appeal, Old Dominion contends that OSHA, rather than MSHA, is the appropriate agency to regulate electric utility employees who are not intimately involved in the mine construction or extraction process. Petitioner argues that the legislative history of the Mine Act demonstrates that electric utilities were not considered as "operators" and the Mine Act was not intended to apply to the "working conditions" of electric utility employees. The utility further contends that MSHA's regulations defining "operator" are arbitrary, ignore the clear meaning of the statute and are not entitled to usual judicial deference. According to petitioner, MSHA's standards are not applicable to electric utilities and could not have been adopted with electric utilities in mind. It argues that MSHA's final rule on independent contractors cannot be applied to electric utilities because the rule gives no notice of its applicability to electric utilities and contains no guidelines for identifying independent contractors as "operators." Finally, Old Dominion contends that the one-year delay by MSHA in issuing the citation does not constitute "reasonable promptness" as required by the Mine Act.⁴ 

Except for Old Dominion's last contention, we agree with each of its arguments.⁵  Our conclusion is supported by the statutory language, legislative history, and case law.

The OSH Act provides for the enforcement of mandatory health and safety standards for the protection of all workers across the country. Its coverage of all businesses affecting interstate commerce is subject to a limited exception contained in Sec. 4(b) (1) of the OSH Act, 29 U.S.C. § 653(b) (1). That statute provides in relevant part that: "Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." (Emphasis added).

In Southern Railway Co. v. Occupational Saf. & H. Review Comm., 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999, 97 S. Ct. 525, 50 L. Ed. 2d 609 (1976), we interpreted the term "working conditions" as used in the statute to mean "the environmental area in which an employee customarily goes about his daily tasks." Id. at 339. We further stated that "when an agency has exercised its statutory authority to prescribe standards affecting occupational safety or health for such an area, the authority of the Secretary of Labor in that area is foreclosed." Id. (footnote omitted).

Applying this definition of "working conditions" to the facts of this case, we conclude that Old Dominion is properly regulated by OSHA, and not MSHA. Old Dominion's only contact with the mine is the inspection, maintenance, and monthly reading of a meter for the purpose of sending a bill to a mine company for the sale of electricity. Petitioner's employees rarely go upon mine property and hardly, if ever, come into contact with the hazards of mining. They perform no activities or functions on mine property which they do not perform elsewhere. MSHA seeks to regulate those few moments every month when electric utility workers read or maintain meters on mine property. Old Dominion's employees are otherwise totally regulated by OSHA. We conclude that OSHA's jurisdiction over electric utilities has not been preempted by MSHA.

The legislative history of Sec. 3(d) of the Mine Act, 30 U.S.C. § 802(d), supports our conclusion and demonstrates that Congress intended to include within the Mine Act's definition of "operator" only those independent contractors who are involved in mine construction or extraction and who have a "continuing presence" at the mine. Originally, the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801 et seq., (the "Coal Act") defined "operator" as "any owner, lessee, or other person who operates, controls or supervises a coal mine." Coal Act, Pub. L. No. 91-173, Sec. 3(d), 83 Stat. 742, 743 (current version at 30 U.S.C. § 802(d)). This Court applied that definition to independent contractors in Bituminous Coal Operators Ass'n v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977). We held that construction companies employed by mining companies as independent contractors could be held liable as "operators" because "construction employees share the risks to which miners are exposed." Id. at 245. Thereafter, in 1977, Congress amended the definition of "operator" to mean "any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." 30 U.S.C. § 802(d) (emphasis added).

The Joint Explanatory Statement of the Conference Committee explains this amendment as follows:

The Senate bill modified the definition of "operator" to include independent contractors performing services or construction at a mine. This was intended to permit enforcement of the Act against such independent contractors, and to permit the assessment of penalties, the issuance of withdrawal orders, and the imposition of civil and criminal sanctions against such contractors who may have a continuing presence at the mine. The House amendment had no comparable provision.

The conference substitute conforms to the Senate bill.

S.Rep. No. 95-461, 95th Cong., 1st Sess. 37 (1977) (emphasis added).

The Senate Human Resources Committee Report accompanying the 1977 amendments, states that:

[T]he definition of mine "operator" is expanded to include "any independent contractor performing services of construction at such mine." It is the Committee's intent to thereby include individuals or firms who are engaged in construction at such mine, or who may be, under contract or otherwise, engaged in the extraction process for the benefit of the owner or lessee of the property and to make clear that the employees of such individuals or firms are miners within the definition of the Federal Mine Safety and Health Act of 1977. In enforcing this Act, the Secretary should be able to issue citations, notices, and orders, and the Commission should be able to assess civil penalties against such independent contractors as well as against the owner, operator, or lessee of the mine. The Committee notes that this concept has been approved by the federal circuit court in Bituminous Coal Operators' Assn. v. Secretary of the Interior, 547 F.2d 240 (C.A.4, 1977).

S.Rep. No. 95-181, 95th Cong., 1st Sess. 14, reprinted in 1977 U.S.Code Cong. & Ad.News 3401, 3414.

These key passages of legislative history make clear Congress' intent to define as "operators" only those independent contractors who are engaged in mine construction or the extraction process, and who have a "continuing presence" at the mine. Old Dominion, whose contacts are rare and remote from the mine construction or extraction process, does not meet this definition of "operator."

Moreover, the Third Circuit has construed the new definition of "operator" and concluded that not all independent contractors working at a mine site are to be regarded as operators. As that court explained:

The reference made in the statute only to independent contractors who "perform [ ] services or construction" may be understood as indicating, however, that not all independent contractors are to be considered operators. There may be a point, at least, at which an independent contractor's contact with a mine is so infrequent or de minimis that it would be difficult to conclude that services were being performed. Such a reading of the statute is given color by the fact that other persons deemed operators must "operate [ ], control [ ], or supervise [ ]" a mine. Designation of such other persons as operators thus requires substantial participation in the running of the mine; the statutory text may be taken to suggest that a similar degree of involvement in mining activities is required of independent contractors before they are designated as operators.

National Industrial Sand Ass'n. v. Marshall, 601 F.2d 689, 701 (3d Cir. 1979) (emphasis added) (footnote omitted). We agree with this analysis and adopt it.

Plainly, Congress intended to exclude electric utilities, such as Old Dominion, whose only presence on the site is to read the meter once a month and to provide occasional equipment servicing. MSHA's final regulation defining "independent contractor" as "any person, partnership, corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a mine" is not controlling. 30 C.F.R. Sec. 45.2(c) (1984). Moreover, because MSHA's position contradicts its earlier interpretation of Sec. 3(d) as expressed in its proposed regulations, it is not entitled to the deference usually given by this Court to agency interpretations of the statutes they are commissioned to enforce. General Electric Co. v. Gilbert, 429 U.S. 125, 140-45, 97 S. Ct. 401, 410-13, 50 L. Ed. 2d 343 (1976).⁶ III.

Old Dominion also contends that MSHA's standards are not applicable to electric utilities, and could not have been adopted with electric utilities in mind. We agree.

MSHA and OSHA have adopted inconsistent regulations regarding electric utilities. For example, MSHA requires at least a ten-foot clearance between an energized overhead power line and the booms and masts of equipment operated on the surface of a coal mine, 30 C.F.R. Sec. 77.807-2. OSHA, on the other hand, permits electric utility employees and equipment to move much closer than ten feet from overhead lines, 20 C.F.R. Secs. 1926.950(d) (Table V-1); . 952(c) (2).⁷  Requiring electric utility employees suddenly to adhere to conflicting standards depending on their job location can only lead to danger, especially where work around high voltage is involved. As explained by the Occupational Safety and Health Commission:

"Rules are more likely to be observed if their rationale is understood and it is made clear that they are not just arbitrary pronouncements but are grounded in practical reasons for safety." Employees who are told they must stay ten feet away from energized power lines if the power lines are in one geographic location but may come as close as two feet away from energized power lines if the lines are in another location, even though the latter lines are potentially just as lethal as the former, might well question the logic behind such instructions. Such questioning on the part of employees could lead to a failure to take such matters seriously and a failure to exhibit the caution necessary to prevent accidents.

New England Telephone and Telegraph Co., 8 BNA OSHC 1478, 1490 (1980) (quoting Brennan v. Butler Lime and Cement Co., 520 F.2d 1011, 1018 (7th Cir. 1975)).

In addition, other MSHA standards, when applied to electric utilities, lead to irrational results. For example, MSHA's regulation at 30 C.F.R. Sec. 77.516 provides that all wiring and electrical equipment installed after June 30, 1971, must comply with the National Electrical Code (the "NEC") in effect at the time of installation. The NEC, however, expressly excludes electric utilities. NEC Art. 90.2(b) (5) (1981 ed.). Thus, MSHA would apply to electric utilities a code which by its very terms excludes electric utilities.

OSHA has adopted strict and comprehensive safety standards which include standards specifically designed to apply to electric utilities. MSHA has adopted contradictory regulations. The Secretary of Labor has not articulated any reasons why the standards applicable to electric utilities under OSHA should be different from standards which he says are applicable to electric utilities under MSHA. We conclude that MSHA regulations do not apply, and were not intended to apply, to electric utilities such as Old Dominion whose sole relationship to the mine is the sale of electricity.

For the foregoing reasons, the Commission's decision is reversed.

REVERSED