next matter on our calendar is secretary of labor versus crane still aggregate companies incorporated thank you for protecting employees performing manuf manufactory type activities that these employees were engaged in is not true further with respect to the facts of this case that you prefer oh sure jannie hussein aside i'm a part of his reasoning was that because there was a single room in the first structure in which my new equipment was repaired  he read the language relating to the structure has meaning in everything that happens in that structure is deemed to be mining even if only the only thing that's mining in that structure is the repair of mining sand that was being dried in that facility was being dried for the purpose of mixing with with with cement and bagging it as a manufacturing process of of cement and that it from various places they got it also from cranes vote block owns a lot of companies you know the interrelation they got it from one of the other quarries in a different location in addition from the hand of the of sand can be mined especially where it's being dried to sell the product of the mind his mind saying or it can be manufacturing if it's being dried as part of the manufacturing process the secretary issued his interpretation that this was not a mine in this in the citation in that it's see if i find it is an exercise of delegated lawmaking authority that the commission and the courts how is it if the articulation by the secretary is in a citation a single piece of paper it's not published as part of the regs it's his application of his ranks secretar deeply which of these sr agencies regulates the bagging plant well because she wants her agencies to be on exercising their authority both according to the law limited resources to mining it that you want the men and women who are doing the inspections down in the plant and not messing around and you know one of the ponds with the decision is that we put provided uncontroverted evidence that functionally indistinguishable big plant in the midwest has been classified as a manufactories facility subject osha's control unit in as close proximity to the  housekeeping deal detail is the occupational safety and health risk review commission from which this peel is taken because they couldn't decide what the answer was is that still only a two person commission so work in the now when there's reason to consider it part of the manufacturing process if you go further with us david here in this case in this case it seems to me quite clear that the sound that was being drawn in the back plant was being dried not for the purpose of selling it as produce of the product of a mind who was being dried in a separate building which is the bagging plant for this matter dried for the purpose restrict i understand correctly for the work of the of the roughly thirty citations that were issued here only a tiny percent even had to do with the sand drying maybe three or so had to do with the sand drying process where it was being dried for purposes of mixing huisman and bagging and the others all had to do with the mixing and bagging process which was  the statute says it is a structure in which equipment is maintained stored or otherwise used in the mining process they have no uses to guide people on the jurisdictional question is if there is aspect i disagree with you i think it was a separate processing of the sand by separating the water from the sand so then it was doing it for the purpose of preparing that sand it was doing it not can be expanded or reduced depending on on what the populace of the drawing the milling of the drawing of the say yes or head to experts you are that both came into us by one for the secretary and one for the employer and both of them acknowledge of the processes was in fact milling now set that aside ok when you interpret it we don't get two secretaries difference at all here the statute was very clear  as to what should be included as mine and mine is not a lay person's definition of what we would think of as a consumer market is very very very broad in this case which secretary had not brought up is that have regulations which would be comparable to these violations so we have another federal agency has regulations that cover the same type of activity then osha is precluded from stepping in and himself has mandatory views it's twice the air and knows it does not have any mandate to visit that these citations came from oh so i don't know i don't know what have separate purposes and separate expertise in this particular sexperts he should be used in looking at what was there in our particular positions when you factoring process was not a manufacturing process and we keep hearing people say it's manufacturing  for electrical wire and that's where the employer gets confused is not somebody to objective evaluation of what the standards are and it's both agencies both agencies care about the health offer and safety of employees all right there's another question here and the question is i don't have an answer with whether all the citations that the secretary wrote would have been the same citations  more but in different areas i don't have an answer but when we know what agency that rules over the structure the equipment in the mine which is again a hundred thirty three acres the only thing that's  no it's not you or your room in there that he alleges manufacturing takes place the other two rooms in the same building deal with stores which made this material the maintenance and mechanics that service the equipment down below sale manufacturing at the very least it's closer to me factoring in is the money but just but the statute says read broadly if there is mining activities in the structure itself the secretary would like you to read the statute says to the extent that mining occurs but that's not the status as the statute says if there is mining in the structure it has broad go to the next step of being back with the matches you have to separate that moisture you are always going to have a big heart block yeah that moisture is extraordinarily important now can you sell sand without separating the introduced to the l j i believe was part of the record i only demonstrate that as part of the record that the employer considered this facility that was so the agency writ large the secretary and his minions tell you whether i'm sure in advance or as you're getting advice on doing it when you need it am sure compliant wiring  notice that osha was coming or m she was coming to complaint first came in the record will reflect oh she went to our readiness concrete facility down the road thinking that's where the complaint was they were directed to go down to where the mine was because that was where the complaint came from the inspector called his home offices no that's ensures jurisdiction come on back he went back subsequently and records them clear on what happened they said no that's ours you're the question and we're looking at the plain reading of the statue all right it's our contention and intent of congress by ed m o u which is the intent is to be applied in jurisdictional questions there's no structures that the building plant was not part of the mine and then in and prior occasions they responded oh sure you know sure a letter saying that they'd received a complaint by saying  and that you have to look at you have to look at its relationship to other milling processes and to the other processes that are going on at the facility so it can be into dental to manufacturing or could be incidental or be part of the milk and