United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 09-2011 & 

09-2055

CRANESVILLE AGGREGATE 

COMPANIES, INC., D/B/A SCOTIA BAG 

PLANT,

Respondent.

ON BRIEFS: 

Ronald Gottlieb, Appellate Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph 

M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia 

Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC 

 For the Complainant 

Walter G. Breakell, Esq.; Brian J. Barraclough, Esq., Breakell Law Firm, P.C., Albany, NY; 

Henry Chajet, Esq.; R. Brian Hendrix, Esq., Jackson Lewis LLP, Reston, VA 

 For the Respondents 

DECISION 

Before: ATTWOOD, Chairman; and MACDOUGALL, Commissioner. 

BY THE COMMISSION: 

Cranesville Aggregate Companies, Inc. owns and operates a sand and gravel mine in 

Scotia, New York. Several buildings are located on Cranesville’s property, including “Building 

1” and “Building 2,” which are referred to collectively as the “Bag Plant.” After receiving a 

complaint about health and safety hazards in Building 2 at the Bag Plant, the Occupational 

Safety and Health Administration conducted safety and health inspections at the facility. OSHA 
2

subsequently issued Cranesville three safety citations (Docket No. 09-2011) and three health 

citations (Docket No. 09-2055).1

 A total penalty of $508,500 for all six citations was proposed. 

Before former Administrative Law Judge Ken S. Welsch, Cranesville asserted that 

OSHA’s authority to regulate conditions at the Bag Plant had been preempted by the Mine 

Safety and Health Administration pursuant to section 4(b)(1) of the Occupational Safety and 

Health Act of 1970, 29 U.S.C. § 653(b)(1). The judge agreed, finding that the work being done 

at the Bag Plant rendered it a mine under the Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801, et seq., and he vacated all six citations. 

On review, the two Commissioners are divided on the appropriate disposition of the 

jurisdictional issue in this case. To resolve this impasse, the Commissioners agree to vacate the 

direction for review, thereby allowing the judge’s decision and order to become the final 

appealable order of the Commission with the precedential value of an unreviewed administrative 

law judge’s decision. See, e.g., Texaco, Inc., 8 BNA OSHC 1758, 1760 (Nos. 77-3040 & 77-

3542, 1980); Rust Eng’r Co., 11 BNA OSHC 2203, 2205 (No. 79-2090, 1984); Safeway, Inc., 20 

BNA OSHC 1021 (No. 99-316, 2003); Timken Co., 20 BNA OSHC 1070, 1072 (No. 97-0970, 

2003). See also sections 10(c), 11(a) and (b), and 12(j) of the OSH Act, 29 U.S.C. §§ 659(c), 

660(a) and (b), and 661(i). Accordingly, the direction for review is vacated. The separate 

opinions of each Commission member follow.

SO ORDERED. 

 /s/ 

 Cynthia L. Attwood 

 Chairman 

 /s/ 

Heather L. MacDougall 

Dated: April 22, 2016 Commissioner 

 

1

 In Docket No. 09-2011, the citations allege 17 serious, two willful, and five repeat violations of 

various general industry standards. In Docket No. 09-2055, the citations allege three serious, six 

willful, and three repeat violations of general industry standards, including standards relating to 

personal protective equipment (PPE) and air contaminants. These two matters were consolidated 

by the judge for disposition purposes with a third matter that is not before us on review. 

Specifically, Docket No. 10-0447 addressed citations issued at a separate facility owned and 

operated by Cranesville. However, neither party petitioned for review of this portion of the 

judge’s decision. As a result, by order dated April 26, 2013, the Commission severed Docket 

No. 10-0447 from this consolidated matter and vacated the direction for review with regard to it. 
3

Separate Opinion of Chairman Attwood 

ATTWOOD, Chairman: 

The Secretary determined in this case that the Occupational Safety and Health Act 

applied to conditions at Cranesville’s Bag Plant, which was located at a Cranesville facility at 

which mining operations also occurred.1 Occupational Safety and Health Act of 1970, 29 U.S.C. 

§§ 651-678. Former Administrative Law Judge Ken S. Welsch concluded that the OSH Act was 

preempted based on his view that mineral milling took place at the Bag Plant and, thus, it was 

covered by the Mine Act. See OSH Act § 4(b)(1), 29 U.S.C. § 653(b)(1) (“Nothing in this Act 

shall apply to working conditions of employees with respect to which other Federal agencies . . . 

exercise statutory authority to prescribe or enforce standards or regulations affecting 

occupational safety or health.”); Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. 

The Mine Act does not define the term “mineral milling,” but grants the Secretary discretion to 

determine its meaning. See Mine Act § 3(h)(1), 30 U.S.C. § 802(h)(1). Because the Secretary is 

accorded discretion and I would find his determination here is reasonable, his exercise of that 

discretion warrants deference. Accordingly, I would find that the cited conditions in the Bag 

Plant were properly subject to OSHA’s authority, reject Cranesville’s affirmative defense of 

preemption, and remand this case for further proceedings. 

Background 

A. Cranesville’s Operations 

Cranesville owns a facility in Scotia, New York, that is bisected by a set of railroad 

tracks. On one side of the tracks is a sand and gravel quarry, and an associated milling facility—

referred to as Plant 5—at which mineral material known as “crude” was excavated and then 

crushed, washed, sized, and separated into sand and two grades of gravel.2

 These excavation and 

milling operations were performed outdoors, so the stockpiled sand and gravel products located 

nearby were exposed to the elements. At the time OSHA inspected the Bag Plant, most of the 

materials produced at Plant 5 were sold directly to outside buyers or to other offsite Cranesville 

facilities, or were moved to other stockpiles on the quarry side of the railroad tracks. 

 

1 Cranesville closed the Bag Plant in the fall of 2010, after this case arose. 

2

 “Crude” is defined in an Interagency Agreement between OSHA and MSHA as “a mixture of 

minerals in the form in which it occurs in the earth’s crust.” MSHA/OSHA Interagency 

Agreement, 44 Fed. Reg. 22,827, 22,829, App’x A (Apr. 17, 1979). 
4

On the other side of the tracks was the Bag Plant, which consisted of two buildings, 

although only activities in one of those buildings, Building 2, are at issue. A small portion of the 

materials mined and processed at Plant 5 was delivered across the tracks to the Bag Plant as 

needed. At the Bag Plant, sand, Portland cement, gravel, cement, and other materials were 

mixed in specified proportions to manufacture several products that were bagged for sale to 

consumers, such as dry mortar mix, dry concrete mix, and a dry specialty cement product called 

“surface bond.” Some materials, such as Portland cement, a premium stone product, and sand, 

were also simply bagged for sale.3

 One room in the Bag Plant—known as the maintenance 

shop—was used to maintain and repair equipment that included mining equipment.4 

The Bag Plant utilized approximately 3-5% of the materials produced from Plant 5 and, as 

the judge found, received “most” of the materials it used from outside sources. Upon request 

from the Bag Plant supervisor, a Plant 5 employee loaded sand or gravel from the outdoor 

stockpiles at the quarry and delivered specified quantities of those products to outside stockpiles 

at the Bag Plant, where they continued to be exposed to the elements.5 A Bag Plant employee 

later loaded the gravel and sand into separate plant hoppers as needed.6

 Other materials that were 

mixed and/or bagged at the Bag Plant did not originate at Cranesville’s quarry—they came from 

other Cranesville facilities and other sources unrelated to Cranesville.7 All of the sand delivered 

to the Bag Plant, whether from the quarry and Plant 5 or an outside source, was dried before it 

 

3

 The Bag Plant only produced two products on a regular basis: bagged Portland cement and 

mortar mix. Pure sand was rarely bagged at the Bag Plant. 

4

 Maintenance personnel worked on equipment throughout Cranesville’s operations; they worked 

specifically on mining equipment at several different locations. When maintenance employees 

worked on mining equipment at the Bag Plant, their activities were limited to one room in the 

building that was separate from the bagging operations and from which Bag Plant employees 

were prohibited entry. 

5 Any dictionary definitions aside, in evidence is a diagram of the Bag Plant’s Building 2, which 

identifies the locations of numerous “stock pile[s].” 

6

 Quarry/Plant 5 employees and Bag Plant employees were all employed by Cranesville; 

however Bag Plant employees did not work at the quarry/Plant 5 and quarry/Plant 5 employees’ 

contact with the Bag Plant was limited to making deliveries of sand and gravel, and picking up 

items (such as parts) for delivery to the quarry/Plant 5. A third group of Cranesville employees 

performed all of the equipment maintenance for the quarry, Plant 5, and the Bag Plant. 

7

For example, dry Portland cement (an essential ingredient in dry mortar mix) was manufactured 

elsewhere. And some ingredients used in specialized glues, stone products, and some of the sand 

used by the Bag Plant came from outside enterprises. 
5

was transferred to a silo and from there, to the mixing and bagging area. The treatment of the 

sand is a key activity upon which this case turns. 

It is undisputed that Cranesville’s quarry and Plant 5 must be inspected regularly by 

MSHA. See 30 U.S.C. § 813(a) (“Authorized representatives of the Secretary . . . shall make 

frequent inspections and investigations in coal or other mines each year . . . .”). Indeed, three 

MSHA inspectors testified that each had conducted such regular inspections of the quarry and 

Plant 5 as well as surrounding operations on the quarry side of the railroad tracks. All three 

testified that the supervisor who accompanied them on these inspections told them either that the 

buildings on the other side of the railroad tracks were not covered by the Mine Act, or that there 

were no facilities at Cranesville that were subject to the Mine Act other than those on the 

quarry/Plant 5 side of the railroad tracks. In any event, despite regular MSHA inspections of 

Cranesville’s facility, it is also undisputed that MSHA never inspected the Bag Plant. 

B. Statutory and Regulatory Background 

The determination of whether the activities conducted in the Bag Plant constituted 

“mineral milling” within the meaning of the Mine Act depends on certain provisions of the OSH 

Act, the Mine Act (as well as its legislative history), and the 1979 Interagency Agreement 

between OSHA and MSHA, often referred to as a Memorandum of Understanding (MOU). The 

OSH Act and the Mine Act both contain provisions relevant to the limits of authority of the two 

Labor Department agencies. By its terms, the OSH Act “appl[ies] with respect to employment 

performed in a workplace in a State . . . .” OSH Act § 4(a), 29 U.S.C. § 653(a). As noted above, 

the OSH Act also places limits on that applicability, precluding OSH Act coverage regarding 

“working conditions of employees with respect to which other Federal agencies . . . exercise 

statutory authority to prescribe or enforce standards or regulations affecting occupational safety 

or health.” OSH Act § 4(b)(1), 29 U.S.C. § 653(b)(1). 

It is well-settled under long-standing Commission precedent that a section 4(b)(1) claim 

of preemption is an affirmative defense; the burden of proof therefore is on the employer. Idaho 

Travertine Corp., 3 BNA OSHC 1535, 1536 (No. 1134, 1975); Tidewater Pacific Inc., 17 BNA 

OSHC 1920, 1923 (No. 93-2529, 1997), aff’d in part on other grounds, 160 F.3d 1239 (9th Cir. 

1998). The Commission evaluates an employer’s argument that OSHA’s authority is preempted 

under section 4(b)(1) by considering: (1) whether the other federal agency has the statutory 

authority to regulate the cited working conditions; and (2) if the agency has that authority, 
6

whether the agency has exercised it over the cited conditions by issuing regulations having the 

force and effect of law. JTM Indus., Inc., 19 BNA OSHC 1697, 1699 (No. 98-0030, 2001). 

Only the first consideration is at issue in this case. 

Under Title I of the Mine Act, MSHA has the authority to regulate working conditions 

“in coal or other mine[s].” Mine Act § 4, 30 U.S.C. § 803. And the Mine Act specifically 

defines “coal or other mine” as including, among other things, “lands, . . . structures, facilities, 

equipment, machines, tools, or other property . . . used in, or to be used in, . . . the milling of . . . 

minerals . . . .” Mine Act § 3(h)(1), 30 U.S.C. § 802(h)(1) (emphasis added). Although “mineral 

milling” is not defined in the Mine Act, section 3(h)(1) provides specific instructions to the 

Secretary of Labor that “[i]n making a determination of what constitutes mineral milling for 

purposes of this Act, the Secretary shall give due consideration to the convenience of 

administration resulting from the delegation to one Assistant Secretary of all authority with 

respect to the health and safety of miners employed at one physical establishment[.]” Id. The 

Conference Report to Mine Act’s final bill notes that “both the Senate bill and the House 

amendment authorized the Secretary, in cases of possible overlapping jurisdiction[] between the 

Mine Safety and Health Administration and OSHA, to assign enforcement responsibilities to a 

single agency.” S. REP. NO. 95-461, at 38 (1977) (Conf. Rep.) (emphasis added).8

 Thus, it is 

clear based on the language of the statute and its legislative history that Congress intended that 

the Secretary determine whether a particular operation is mineral milling, and contemplated 

circumstances in which OSHA and MSHA might each have jurisdiction over different operations 

located at a facility at which mining occurs. 

Less than two years after the effective date of the Mine Act, MSHA and OSHA entered 

into the 1979 MOU to “delineate certain areas of authority, set forth factors regarding 

determinations relating to convenience of administration, provide a procedure for determining 

general jurisdictional questions, and provide coordination between MSHA and OSHA in all 

 

8

 The Senate Committee Report on the proposed Mine Act states that “there may be a need to 

resolve jurisdictional conflicts, but it is the Committee’s intention that what is considered to be a 

mine and to be regulated under this Act be given the broadest possibl[e] interpretation, and it is 

the intent of this Committee that doubts be resolved in favor of inclusion of a facility within the 

coverage of the Act.” S. REP. NO. 95-181, at 14 (1977). As discussed further below, in this case 

the Secretary ultimately had no doubts to resolve; he determined that OSHA, not MSHA, had 

jurisdiction over the Bag Plant. And that determination is supported by the fact that Cranesville 

neither classified nor treated the Bag Plant employees as covered by the Mine Act. 
7

areas of mutual interest.” 44 Fed. Reg. 22,827 (Apr. 17, 1979). The MOU, unchanged since its 

inception, is the Secretary’s interpretation of what constitutes mining and mineral milling. It 

explicitly designates certain operations as being subject to MSHA authority and others as being 

subject to OSHA authority, and provides a method to determine which agency has authority over 

heretofore undesignated operations. Appendix A to the MOU defines “milling” and also 

provides definitions of various processes that inform the Secretary’s determination as to which of 

the two agencies has regulatory authority over a given operation. 44 Fed. Reg. at 22,829. 

C. Procedural History

In response to an employee complaint to OSHA about health and safety hazards at 

Cranesville’s Bag Plant, OSHA inspected the Bag Plant and ultimately issued Cranesville 

citations for serious violations of OSHA safety and health standards.9

 Before the judge, 

Cranesville challenged OSHA’s authority over the Bag Plant operations on the ground that it was 

preempted by the Mine Act. Following an evidentiary hearing, the judge vacated the citations on 

two grounds. First, he concluded that, because “drying” is a process identified as “milling” in 

the MOU and Cranesville dried all of the sand from the Bag Plant’s outdoor stockpile before 

either mixing it with other dry ingredients or bagging it, the Bag Plant was a milling operation 

within the meaning of the Mine Act.10 Second, the judge concluded that the presence of the 

maintenance shop in one room of the Bag Plant building where mining and other equipment was 

repaired was “sufficient to bring the Bag Plant within the purview of the Mine Act.” 

On review, the Secretary points to the Mine Act’s explicit delegation of authority to 

himself to determine which Labor Department agency has inspection authority over the Bag 

Plant, and contends the judge erred in not according deference to the Secretary’s determination. 

The Secretary also asserts that pursuant to the definition of “milling” in the MOU, Cranesville’s 

mining and milling process ceased after the sand and gravel was extracted and milled at Plant 5 

 

9

 Following receipt of the complaint, an OSHA compliance officer initially went to the wrong 

Cranesville facility, where the safety director told him that the facility he sought was a mine. 

The CO reported this conversation to his supervisor, who initially advised him not to inspect. 

However, it was determined that the Bag Plant was not under MSHA’s jurisdiction and had 

never been inspected by MSHA. The CO then carried out his inspection of the Bag Plant that led 

to the OSHA citations. 

10 The judge rejected Cranesville’s additional claim that the Bag Plant engaged in “sizing,” 

another milling process listed in Appendix A to the MOU. See 44 Fed. Reg. at 22,829. I too 

would find that there is no evidence that sizing occurred in the Bag Plant. 
8

and delivered to the Bag Plant stockpiles. Thus, he argues, the process at the Bag Plant—

beginning with the loading of sand and gravel into their respective hoppers and culminating in 

bagging the consumer product—constituted manufacturing, which falls within OSHA’s 

authority. In addition, the Secretary argues that the judge erroneously focused on the definition 

of “drying” in the MOU, and that a reading of the MOU as a whole supports the Secretary’s 

determination. Cranesville argues that by definition the drying of sand at the Bag Plant is 

“milling,” and therefore the Bag Plant is subject to the Mine Act. The company also argues that 

the presence of the maintenance shop in the Bag Plant requires that the entire Bag Plant be 

considered a mine. 

Discussion 

The crushing, washing, and sizing that takes place at Cranesville’s Plant 5 plainly 

constitutes “milling” within the meaning of the Mine Act. Therefore, the quarry and its 

associated mill and stockpiles at Plant 5 constitute a “mine” within the meaning of the Mine Act 

and are subject to that Act. Nonetheless, for the following reasons I would conclude that the 

Secretary’s determination that the Bag Plant is a manufacturing facility subject to the OSH Act, 

rather than a mineral mill within the meaning of the Mine Act, is reasonable and entitled to 

deference. 

A. Standard of Review 

It is axiomatic that if a statutory provision is unambiguous, its language must be given 

effect. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). And 

even if there is ambiguity, “a court may not substitute its own construction of [the] provision for 

a reasonable interpretation made by the administrator of an agency.” Id. at 844. In promulgating 

the Mine Act, Congress unambiguously delegated to the Secretary responsibility for “making a 

determination of what constitutes mineral milling . . . . ” Mine Act, § 3(h)(1), 30 U.S.C. 

§ 802(h)(1). Indeed, as found by the two courts of appeals to address the issue, the language of 

section 3(h)(1) of the Mine Act “gives the Secretary discretion, within reason, to determine what 

constitutes mineral milling, and thus indicates that his determination is to be reviewed with 

deference both by the Commission and the courts.” Donovan v. Carolina Stalite Co., 734 F.2d 

1547, 1552 (D.C. Cir. 1984); see also Kaiser Aluminum and Chem. Co. v. Dep’t of Labor, 214 

F.3d 586, 591 (5th Cir. 2000) (according deference to Secretary of Labor in determining what 

constitutes “milling” under the Mine Act). 
9

In Stalite, the Secretary had determined that the facility at issue engaged in mineral 

milling and was subject to the Mine Act, and issued citations pursuant to that authority. The 

Federal Mine Safety and Health Review Commission (FMSHRC) vacated the citations, finding 

that Stalite was subject to the OSH Act.11 In reversing the FMSHRC decision, the D.C. Circuit 

engaged in a comprehensive analysis of the Secretary’s authority to determine what constitutes 

mineral milling within the meaning of the Mine Act. The court observed that the distinction 

between milling, on the one hand, and manufacturing, on the other, is “somewhat elusive, to say 

the least,” and concluded that “[FMSHRC], so far as we can see, gave the Secretary’s 

determination no deference, and that was error.” Id. at 1551-52. The court noted that “[w]e have 

before us just the sort of determination the Secretary was empowered by Congress to make[,]” 

and added that “[i]n this highly technical area deference to the Secretary’s expertise is especially 

appropriate.” Id. at 1552 and n.9. The court also rejected FMSHRC’s refusal to rely on the 

MOU: 

[The MOU], while not dispositive, assist[s] our resolution of the jurisdictional 

question. Section 3(h) specifically contemplates, and, moreover, depends in part, 

on “the agencies . . . agree[ing] between themselves as to which agency will 

inspect a particular business establishment.” 

Id.12 

My colleague endorses Cranesville’s argument that the meaning of “milling” as used in 

the Mine Act is plain, and therefore deference to the Secretary is precluded. But in light of the 

Act’s explicit delegation of authority to the Secretary to determine the limits of milling, as well 

as the legislative history noting that the jurisdictional line may not be clear, what is plain is that 

this argument lacks merit. And instead of determining whether the Secretary’s conclusion that 

Cranesville did not engage in milling at the Bag Plant within the meaning of the Mine Act is 

reasonable and thus entitled to deference, the judge applied the wrong standard of review and 

simply reached his own conclusion. While the judge began his analysis by correctly noting that 

“ ‘[t]he Commission gives considerable weight to a federal agency’s representation as to its 

authority to regulate cited working conditions,’ ” (citing JTM Indus., 19 BNA OSHC at 1699), 

 

11 FMSHRC is an adjudicatory agency that decides cases arising under the Mine Act. 30 U.S.C. 

§ 823. 

12 Although Stalite presented a different factual situation than we have before us—one in which 

the Secretary’s determination was to include an operation within MSHA’s ambit—the principles 

of deference apply with equal force. 
10

he proceeded to decide the preemption issue without according any apparent weight to the 

Secretary’s representation of OSHA’s authority. 

Applying the appropriate standard of review to the Secretary’s determination, I would 

conclude that it is reasonable and should be accorded deference. First, the operations of the Bag 

Plant fit neither the definition of “mill” found in MSHA’s standards, nor the definition of 

“milling” contained in the MOU. MSHA’s safety and health standards for metal and nonmetal 

mines define “mill” as “any ore mill, sampling works, concentrator, and any crushing, grinding, 

or screening plant used at, and in connection with, an excavation or mine.” 30 C.F.R. § 56.2. 

Although this definition obviously applies to Plant 5 (where Cranesville engaged in crushing, 

washing, and screening), nothing in the definition bears any resemblance to the processes 

Cranesville engaged in at the Bag Plant. Additionally, Appendix A of the MOU defines 

“milling” as “the art of treating the crude crust of the earth to produce therefrom the primary 

consumer derivatives.” 44 Fed. Reg. at 22,829. And it notes that “[t]he essential operation in all 

such processes is separation of one or more valuable desired constituents of the crude from the 

undesired contaminants with which it is associated.” Id. 

 Cranesville relies on the judge’s erroneous finding that “[e]mployees in the Bag Plant 

were applying heat to excavated material hauled directly from the mine in order to dry the 

material” to argue that the separation of water from sand that occurred in the dryer at the Bag 

Plant fits within the MOU’s definition. (Emphasis added.) Neither the judge’s finding nor 

Cranesville’s argument is factually accurate. Indeed, contrary to the judge’s finding, the 

“excavated material”—the crude crust of the earth—was not “hauled directly from the mine” to 

the Bag Plant. Rather: (1) it was transported from the mine to the milling facilities at Plant 5, 

where specific milling processes—crushing, washing, and screening—were applied to produce 

sand and two grades of gravel; (2) these materials were then moved to outdoor stockpiles at Plant 

5; (3) most of the output of Plant 5 was then sold in that form, as “primary consumer 

derivatives,” to off-site customers or moved to other stockpiles on the quarry side of the railroad 

tracks;13 (4) as needed, a small portion of the sand and gravel stockpiled at Plant 5 was 

transported to the Bag Plant’s outdoor stockpiles; (5) as needed, the sand and gravel were then 

loaded into their respective hoppers at the Bag Plant; and (6) the sand was then dried and either 

 

13 Cranesville did not dry sand or any of the other products it sold directly from Plant 5 to 

customers. 
11

stored in a silo for future use or transported to the mixing and bagging areas of the Bag Plant. 

Thus, “separation of one or more valuable desired constituents [sand and gravel] of the crude 

from the undesired contaminants with which it is associated” occurred only at Plant 5—not at the 

Bag Plant. For that reason alone, the Secretary’s determination that Cranesville engaged in 

manufacturing and not milling at the Bag Plant is reasonable and is entitled to deference. 

 Furthermore, the drying of sand at the Bag Plant can reasonably be seen as a necessary 

first step in the Bag Plant’s manufacturing of three products: dry concrete mix, dry mortar mix, 

and dry surface bonding material. Each of these products was made by mixing dried sand with 

other dry materials, and they were then bagged at the facility and sold. The Bag Plant also 

bagged and sold two different grades of Portland cement, which Cranesville acquired from offsite producers. And, occasionally, the plant bagged pure sand. In his deposition, the President of 

Cranesville Aggregate explained that the material “has to be dry when it’s blended with cement 

or the chemical reaction will start with the moisture and the bag could harden up.” Moreover, he 

testified that some materials (such as “play sand”) do not need to be dried, but Cranesville dries 

them “because [they] handle[] better.” The Secretary’s expert witness confirmed these 

statements: 

Some of the materials that are bagged in these processes include cement. If the 

materials are moist, when they’re mixed with the cement, they will begin to 

hydrate the cement which means the cement will start to set up and get hard, and 

you will have lumps at the least, or you could have the entire bag turn hard and be 

unusable. So the dryness is important to the bagging process, . . . and also to the 

handling of it through their system as it’s being conveyed and stored. 

And not all of the sand used at the Bag Plant came from Cranesville’s quarry; some of it came 

from outside sources. Just like the sand delivered from Plant 5, the sand from other sources was 

stored in a stockpile outside the Bag Plant before it was used. And all the sand that was used at 

the Bag Plant was dried, irrespective of its source. Thus, sand delivered from off-site locations 

was treated exactly the same as the sand that came from Cranesville’s mill. 

Finally, I would note that the Secretary’s determination that the Bag Plant was subject to 

OSH Act jurisdiction is consistent with the apparent understanding of Cranesville’s own 

managers. Prior to OSHA’s inspection, the Bag Plant supervisor was given OSH Act, but not 

Mine Act, training. And Bag Plant employees were specifically excluded from Mine Act 

training. Moreover, over the years the quarry/Plant 5 supervisor told at least three MSHA 
12

inspectors that the Bag Plant buildings were not subject to the Mine Act.14 He testified that he 

never took the MSHA inspectors to the Bag Plant or introduced them to the Bag Plant 

supervisor. Indeed, Cranesville’s Safety Director, who attended the OSHA opening conference 

in this case and accompanied both compliance officers on their inspections of the Bag Plant, 

never asserted that OSHA lacked jurisdiction over the Bag Plant or sought to deny them entry on 

that ground. 

B. The MOU 

The judge confined his decision to an analysis of only one portion of Appendix A of the 

MOU; he failed to consider the MOU as a whole. But the MOU, read in its entirety, supports the 

conclusion that the Secretary acted reasonably here. Moreover, the judge failed to consider other 

significant evidence that is relevant to the Secretary’s determination. 

First, the judge failed to consider part of the MOU in which the Secretary identifies 

specific processes that are subject to either MSHA or OSHA authority: 

Pursuant to the authority in section 3(h)(1) to determine what constitutes mineral 

milling considering convenience of administration, the following jurisdictional 

determinations are made: 

a. MSHA jurisdiction includes salt processing facilities on mine property; 

electrolytic plants where the plants are an integral part of milling operations; 

stone cutting and stone sawing operations on mine property where such 

operations do not occur in a stone polishing or finishing plant; and alumina 

and cement plants. 

b. OSHA jurisdiction includes the following, whether or not located on mine 

property: brick, clay pipe and refractory plants; ceramic plants; fertilizer 

product operations; concrete batch, asphalt batch, and hot mix plants; 

smelters and refineries. OSHA jurisdiction also includes salt and cement 

distribution terminals not located on mine property, and milling operations 

associated with gypsum board plants not located on mine property. 

 

14 The judge implicitly credited the MSHA inspectors’ testimony that each had conducted regular 

inspections at the quarry/Plant 5 and that the supervisor told them that the buildings on the other 

side of the railroad tracks were not covered by the Mine Act. But he rejected the Secretary’s 

argument that Cranesville’s actions support the Secretary’s determination that the Bag Plant was 

subject to the OSH Act. The judge correctly observed that “the mine operator is not entitled to set 

the jurisdictional limits of its property[,]” and “MSHA’s previous failure to inspect the Bag Plant 

is not a factor in determining current jurisdiction.” However, Cranesville’s apparent 

determination that the Bag Plant was subject to the OSH Act supports the conclusion that it is 

reasonable for the Secretary to make the same determination. And reasonableness is the standard 

by which the Secretary’s determination is assessed. 
13

MOU paragraph B.6, 44 Fed. Reg. at 22,828 (emphasis added). The evident conclusion to be 

drawn from this paragraph is that, consistent with the Mine Act, the Secretary determined that 

OSHA would have jurisdiction over some facilities that are located on mine property. Moreover, 

with regard to facilities and operations listed in paragraph B.6.b, Appendix A of the MOU 

plainly describes the point at which MSHA authority ends and OSHA authority begins.15

 Thus, 

for example, at brick, clay pipe, and refractory plants, OSHA authority “[c]ommences after 

arrival of raw materials at the plant stockpile.” Id. at 22,830. Similarly, at ceramic plants OSHA 

authority “[c]ommences after arrival of the clay and other additives at the plant stockpile.” Id. 

And OSHA authority at asphalt-mixing plants as well as concrete ready-mix or batch plants 

“[c]ommences after arrival of sand and gravel or aggregate at the plant stockpile.” Id. And the 

MOU makes clear that all of these types of facilities may be subject to OSHA’s authority even if 

they are located “on or contiguous to” mine property.16

 The analogy of these operations to the 

Bag Plant is obvious. In all of them raw materials have been extracted from the earth, have been 

processed in some way, and then delivered to plants that manufacture a final product. In all of 

these circumstances, the line between mining and milling, on one hand, and manufacturing, on 

the other, has been drawn by MSHA and OSHA at the plant’s stockpile, which lends additional 

credence to the conclusion that the Secretary’s line-drawing in this case is reasonable. 

Second, paragraph B.5 of the MOU (neither cited nor discussed by the judge) lists four 

factors to be considered in drawing the jurisdictional line between milling and manufacturing in 

circumstances not covered by paragraph B.6: 

The following factors, among others, shall be considered in making 

determinations of what constitutes mineral milling under section 3(h)(1) and 

whether a physical establishment is subject to either authority by MSHA or 

OSHA: the processes conducted at the facility, the relation of all processes at the 

 

15 Appendix A describes the operations listed in paragraph B.6.b as “types of operations which 

may be on or contiguous to mining and/or milling operations . . . over which MSHA does not 

have authority . . . and over which OSHA has full authority . . . .” 44 Fed. Reg. at 22,830. 

16 Appendix A also addresses specific types of facilities on mine property in which MSHA and 

OSHA each have authority over specific operations. For example, regarding gypsum board 

plants, the Appendix states that “[i]f the plant is located on mine property, [OSHA authority] 

commences at the point when milling . . . is completed, and the gypsum and other materials are 

combined to enter the sequential processes necessary to produce gypsum board.” Provisions 

regarding fertilizer products, custom stone finishing, smelting, electrowinning, and refining 

similarly demarcate the end of milling (and MSHA’s authority) and the beginning of 

manufacturing (and OSHA’s authority) in plants located on mine property. 
14

facility to each other, the number of individuals employed in each process, and 

the expertise and enforcement capability of each agency with respect to the safety 

and health hazards associated with all the processes conducted at the facility. 

44 Fed. Reg. at 22,828 (emphasis added). Contrary to my colleague’s assertion, in his brief, the 

Secretary has explained why consideration of these factors supports the reasonableness of his 

determination that the Bag Plant was subject to the OSH Act. The record establishes that all of 

the processes in the Bag Plant, including the drying of sand, mixing of dry ingredients, and 

bagging of dry materials, were interrelated and designed to facilitate the production of the final 

products: bagged dry construction materials. The citations OSHA issued regarding the Bag 

Plant involve the types of hazards typical of a manufacturing facility: fall hazards, electrical 

hazards, ladder hazards, personal protective equipment hazards, hazards associated with 

exposure to respirable dust, and exposure to hazardous substances. Moreover, the Secretary has 

acted consistently in this regard—his expert witness testified that OSHA had asserted jurisdiction 

over other, similar, bagging facilities located on mine property. 

Third, the judge focused his attention solely on one provision of the MOU’s Appendix A, 

which provides: 

Following is a list with general definitions of milling processes for which MSHA 

has authority to regulate subject to Paragraph B6 of the Agreement. Milling 

consists of one or more of the following processes: crushing, grinding, 

pulverizing, sizing, concentrating, washing, drying, roasting, pelletizing, 

sintering, evaporating, calcining, kiln treatment, sawing and cutting stone, heat 

expansion, retorting (mercury), leaching, and briquetting. 

44 Fed. Reg. at 22,829. The only relevant process on that list for purposes of this case is 

“drying,” which is defined as “the process of removing uncombined water from mineral 

products, ores, or concentrates, for example, by the application of heat, in air-actuated vacuum 

type filters, or by pressure type equipment.” 44 Fed. Reg. at 22,830. The judge applied this 

definition of drying to the facts as he saw them and found: 

The record establishes that d[r]ying occurred in [the Bag Plant]. This milling 

process is not the primary task in which the Bag Plant employees engaged, but it 

was a regular and significant part of [the Bag Plant’s] weekly schedule of 

operations. The MOU does not require a certain volume of material to be milled 

at a facility before it is determined to be under the jurisdiction of MSHA. The 
15

limited drying process that occurred in Building 2 is sufficient to bring the Bag 

Plant under MSHA’s authority.17

The judge thus reduced his analysis to a simplistic equation—“drying” equals a milling process; 

therefore the bag plant is a mill—which fails to take into account the whole of the MOU.18

 In 

addition to the paragraphs already discussed, paragraph B.3 of the MOU provides that 

“[n]otwithstanding the clarification of authority provided under Appendix A, there will remain 

areas of uncertainty regarding the application of the Mine Act, especially in operations near the 

termination of the milling cycle and the beginning of the manufacturing cycle.” 44 Fed. Reg. at 

22,828. Furthermore, as my colleague acknowledges, paragraph B.4 provides: 

Under section 3(h)(1) [of the Mine Act], the scope of the term milling may be 

expanded to apply to mineral product manufacturing processes where these 

processes are related, technologically or geographically, to milling. Or, the term 

milling may be narrowed to exclude from the scope of the term processes listed in 

Appendix A where such processes are unrelated, technologically, or 

geographically, to mineral milling. Determinations shall be made by agreements 

between MSHA and OSHA. 

Id. (emphasis added). Therefore, even if the term “drying” in Appendix A’s general list of 

milling processes could be considered applicable to the drying that occurred at the Bag Plant, the 

MOU contemplates that the Secretary may reasonably determine that because the drying process 

was unrelated, technologically or geographically, to the mineral milling that occurred in Plant 5, 

it should not be considered “milling” for purposes of determining which agency exercised 

jurisdiction. Here, the drying process was directly associated with the rest of the manufacturing 

process and was not “technologically” or “geographically” related to the milling that occurred at 

 

17 Contrary to the judge’s finding, the unrefuted evidence establishes that only one of the six or 

seven Bag Plant employees operated the dryer, and only for three hours once or twice a week. 

Thus, assuming that six employees worked in the bag plant for 40 hours a week each, and at 

most six hours were spent each week drying sand, drying sand comprised less than three percent 

of the total weekly hours worked by all employees in the Bag Plant. I would not consider this 

amount of time “significant.” 

18 As discussed above, the judge also failed to discuss the applicability of MSHA’s definition of 

“mill,” and the MOU’s definition of “milling.” See 30 C.F.R. § 56.2; 44 Fed. Reg. at 22,829. 
16

Plant 5. Thus, this provision in the MOU also supports the reasonableness of the Secretary’s 

decision.19

C. The Maintenance and Repair Shop 

The judge, and my colleague, make much of the fact that one room in Building 2 was 

used by Cranesville maintenance personnel to maintain and repair mining and Bag Plant 

equipment which, in their view, leads to the conclusion that MSHA rather than OSHA had 

jurisdiction over the Bag Plant. As discussed above, however, the MOU makes clear that just 

because a plant is located on or contiguous to a mining facility, OSHA is not necessarily 

deprived of authority over non-mining operations at that facility. Here, little is actually known 

about the maintenance room. It must be emphasized that OSHA did not inspect that room, and 

Bag Plant employees were prohibited from entering it. Cranesville, which despite my 

colleague’s assertion to the contrary has the burden of proof regarding its section 4(b)(1) 

affirmative defense, failed to introduce any evidence regarding the amount of space in Building 2 

that the maintenance room occupied, as opposed to the space used for the Bag Plant, or to offer 

any evidence regarding the amount of mine equipment repair work that was done in that room, as 

opposed to other repair work. I would therefore reject outright Cranesville’s argument and the 

judge’s determination that the repair and maintenance of mining equipment in Building 2 renders 

the entire building a mine within the meaning of the Mine Act 

For all these reasons, I would conclude that the Secretary reasonably exercised the 

express delegation of authority granted to him under the Mine Act to draw the line between 

Cranesville’s mining and milling operations on the one hand, and its manufacturing operations 

on the other. Accordingly, I would find that Cranesville has not carried its burden to show that 

 

19 I would also note that under the MOU, questions of jurisdiction are to be resolved by OSHA 

and MSHA officials at the local and, as needed, national levels, or referred to the Secretary of 

Labor for decision. MOU paragraph B.8, 44 Fed. Reg. at 22,828. See City of Arlington, Tex. v. 

FCC, 133 S. Ct. 1863 (2013) (holding that courts must defer to agency’s interpretation of a 

statutory ambiguity that concerns the scope of the agency’s statutory authority). And any post 

hoc inquiry into the Secretary’s internal deliberations leading to his determination of agency 

authority is the antithesis of his exercise of prosecutorial discretion. Cf. Cuyahoga Valley Ry. v. 

United Transp. Union, 474 U.S. 3, 4-8 (1985) (holding that Secretary’s motion to vacate citation 

on the ground that other federal agency had jurisdiction over cited conditions is unreviewable). 

Finally, though not relevant to the disposition of this case, should there be any question as to 

Cranesville’s preference for MSHA rather than OSHA jurisdiction here, one need only refer to 

the $508,500 proposed OSHA penalty and note that any abatement was obviated by 

Cranesville’s closure of the Bag Plant prior to the hearing. 
17

OSHA’s authority is preempted, and I would reverse the judge’s decision and remand for further 

proceedings. 

 /s/ 

 Cynthia L. Attwood 

Dated: April 22, 2016 Chairman 
18

Separate Opinion of Commissioner MacDougall 

MACDOUGALL , Commissioner: 

This case deals with whether OSHA or MSHA has jurisdiction over Cranesville’s 

worksite, which was inspected by OSHA in response to employee complaints. Following 

OSHA’s inspection, the Secretary issued health and safety citations to Cranesville. Unlike my 

colleague, I would find that these citations must be vacated because OSHA lacks jurisdiction 

over the inspected worksite. I would agree with the judge, albeit for slightly different reasons 

than those set forth in his decision, that the worksite constitutes a mine as defined by the Mine 

Act, giving MSHA statutory authority over the worksite and cited working conditions; as such, 

OSHA’s authority is preempted by section 4(b)(1) of the OSH Act. Therefore, following the 

impasse before the Commission and our decision to vacate the direction for review, all citations 

issued under Docket Nos. 09-2011 and 09-2055 are vacated pursuant to the judge’s decision. 

For the reasons that follow, I would agree that these citations should be vacated. 

Factual Background 

Cranesville operates a sand and gravel quarry in Scotia, New York. Cranesville mines 

approximately 1,500 to 2,000 tons of material per day from this quarry. On the same property, 

Cranesville has several buildings, including a group of buildings referred to as “Plant 5,” located 

next to the quarry, and “Building 1” and “Building 2,” which are referred to collectively as the 

“Bag Plant.” The Bag Plant is approximately 600 feet from the quarry and Plant 5. Railroad 

tracks run across the property, cutting between the quarry and the Bag Plant, and a private road 

leads from the quarry and crosses over the railroad tracks to the Bag Plant. The quarry, Plant 5, 

and the Bag Plant, all of which were owned and operated by Cranesville, have the same street 

address.1

 

Following the extraction of mined material from the quarry, Cranesville processes the 

excavated material by running it through a series of crushers, screens, and wash plants in Plant 5. 

Each day, employees hauled approximately 60 to 80 tons of excavated material from the quarry 

and Plant 5 to the Bag Plant, where Cranesville bagged and packaged mineral and construction 

 

1

 Cranesville closed the Bag Plant in 2010. According to the Bag Plant manager, it was shut 

down because it was too expensive to update. Contrary to my colleague’s suggestion, based on 

this limited evidence, it would be improper for the Commission to ascribe a particular motive to 

Cranesville’s decision in this regard, such as an attempt to avoid OSHA jurisdiction. 
19

materials, such as stone, sand, cement, blacktop, salt, topsoil, and premix aggregates, including 

concrete mix, mortar mix, “surface bond” and other specialty products. The Bag Plant contained 

processing equipment, including screens, dryers, elevators, hoppers, and conveyers. Part of the 

bagging operation involved drying sand and mixing it with cement. During the drying process, 

the sand was “dumped into a big barrel that has a [furnace] gun on the end of it[,]” which would 

“spin and fluff[]” the sand to dry it. The Bag Plant also contained a maintenance shop used for 

repairing mining equipment. This shop performed maintenance work for both Plant 5 and the 

Bag Plant, but was only one of several locations on the Scotia property where mining equipment 

was repaired. 

The parties agree that the quarry and Plant 5 constitute a mine under the jurisdiction of 

the Mine Act, and that MSHA has regularly inspected it. Cranesville contends that the work 

performed at the Bag Plant, which was the subject of OSHA’s inspection, was also under the 

jurisdiction of MSHA. More specifically, Cranesville contends that in the Bag Plant: (1) it 

assembled and repaired mining equipment; and (2) it used equipment to dry mined sand to 

produce a masonry product, which is a milling process. Thus, according to Cranesville, this was 

work within the jurisdiction of the Mine Act. The Secretary disputes the judge’s finding that the 

Bag Plant, like the quarry and Plant 5, was also under the jurisdiction of MSHA. The Secretary 

contends that the fundamental processes Cranesville engaged in at the Bag Plant were bagging 

and packaging materials, which are not milling processes, noting that most of the material that 

was mined in Plant 5 was processed and sold without going to the Bag Plant. Thus, according to 

the Secretary, OSHA’s jurisdiction is not preempted. 

Statutory Framework 

I. Relevant Provisions of the Mine Act and OSH Act

A. The OSH Act 

 Section 4(b)(1) of the OSH Act provides: 

Nothing in this Act shall apply to working conditions of employees with respect 

to which other Federal agencies . . . exercise statutory authority to prescribe or 

enforce standards or regulations affecting occupational safety or health. 

29 U.S.C. § 653(b)(1). In determining whether there is preemption under section 4(b)(1), the 

Commission considers: “(1) whether the other federal agency has the statutory authority to 

regulate the cited working conditions, and (2) if the agency has that authority, whether the 
20

agency has exercised it over the cited conditions by issuing regulations having the force and 

effect of law.” JTM Industr., 19 BNA OSHC 1697, 1699 (No. 98-0030, 2001) (citations 

omitted). In this case, the Secretary concedes MSHA has promulgated regulations that address 

the hazards at issue in the present case. Thus, as noted by the judge, the only issue before us is 

whether MSHA has statutory authority to regulate the cited working conditions. 

B. The Mine Act 

The Mine Act was enacted to promote and improve safety and health in the Nation’s 

mines. 30 U.S.C. § 801 et seq. Under the Mine Act, a “coal or other mine” is defined as: 

(A) an area of land from which minerals are extracted in nonliquid form . . . (B) 

private ways and roads appurtenant to such area, and (C) lands, excavations, 

underground passageways, shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other property including impoundments, 

retention dams, and tailing ponds, 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 in nonliquid form . . . or to be used in, the milling of such minerals, or 

the work of preparing coal or other minerals, and includes custom coal 

preparation facilities. In making a determination of what constitutes mineral 

milling for purposes of this Act, the Secretary shall give due consideration to the 

convenience of administration resulting from the delegation to one Assistant 

Secretary of all authority with respect to the health and safety of miners employed 

at one physical establishment[.]

30 U.S.C. § 802(h)(1) (emphasis and bolding added). 

In passing the Mine Act in 1977, Congress gave MSHA broad jurisdiction and 

established a “single mine safety and health law, applicable to all mining activity.” S. REP. NO.

95-461, at 37 (1977) (Conf. Rep.). The conference committee indicated that the Mine Act 

broadly defines “mine” to include not only “areas from which mineral[s] [are] extracted,” but 

also “all surface facilities used in preparing or processing the minerals . . . .” S. REP. NO. 95-461, 

at 38 (1977) (Conf. Rep.); see also S. REP. NO. 95-181, at 14 (1977) (Mine Act jurisdiction 

reaches “structures . . . which are used or are to be used in . . . the preparation of the extracted 

minerals . . . .”). 

The Senate Committee on Human Resources stated: 

[It]t is the Committee’s intention that what is considered to be a mine and to be 

regulated under this [Mine] Act be given the broadest possibl[e] interpretation, 

and it is the intent of this Committee that doubts be resolved in favor of inclusion 

of a facility within the coverage of the Act.
21

S. REP. NO. 95-181, at 14 (1977) (emphasis added). In sum, Congress intended for the Mine 

Act’s jurisdiction to be broad and jurisdictional questions to be resolved in favor of coverage 

within the Mine Act. 

II. The Interagency Agreement Between MSHA and OSHA 

In 1979, MSHA and OSHA entered into an Interagency Agreement addressing the two 

agencies’ mutual jurisdictional boundaries. 44 Fed. Reg. 22,827 (Apr. 17, 1979). This 

agreement takes into account Congress’ directive that the Secretary, in making a determination 

as to what constitutes mineral milling, “give due consideration to the convenience of 

administration” that would result from assigning to one agency—MSHA or OSHA—all safety 

and health enforcement responsibilities at particular facilities. Interagency Agreement at ¶ B.2, 

44 Fed. Reg. at 22,828 (citing § 3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1)). Paragraph A.3 

of the Interagency Agreement specifies that in cases involving milling operations, the Secretary 

will apply the provisions of the Mine Act. Id. at ¶ A.3, 44 Fed. Reg. at 22,827-28. 

To further clarify which agency has inspection authority with regard to milling, the 

Interagency Agreement states that: 

[T]he scope of the term milling may be expanded to apply to mineral product 

manufacturing processes where these processes are related, technologically or 

geographically, to milling. Or, the term milling may be narrowed to exclude from 

the scope of the term processes listed in Appendix A where such processes are 

unrelated, technologically, or geographically, to mineral milling. Determinations 

shall be made by agreements between MSHA and OSHA. 

Id. at ¶ B.4, 44 Fed. Reg. at 22,828.2 However, the Interagency Agreement also states that in 

making such determinations, MSHA and OSHA shall consider the following factors: (1) the 

 

2

The Interagency Agreement further states that: 

When any question of jurisdiction between MSHA and OSHA arises, the 

appropriate MSHA District Manager and OSHA Regional Administrator . . . shall 

attempt to resolve it at the local level in accordance with this Memorandum and 

existing law and policy. Jurisdictional questions that cannot be decided at the 

local level shall be promptly transmitted to the respective National Offices which 

will attempt to resolve the matter. If unresolved, the matter shall be referred to 

the Secretary of Labor for decision. 

Id. at ¶ B.8, 44 Fed. Reg. at 22,828. It also provides, regarding interagency coordination: 

The Office of Legislative and Interagency Affairs in OSHA and the Office of the 

Assistant Secretary in MSHA shall serve as liaison points to facilitate 

communication and cooperation between the participating organizations. 
22

processes conducted at the facility; (2) the relation of all processes at the facility to each other; 

(3) the number of individuals employed in each process; and (4) the expertise and enforcement 

capability of each agency with respect to the safety and health hazards associated with all the 

processes conducted at the facility. Id. at ¶ B.5, 44 Fed. Reg. at 22,828. In this paragraph of the 

Interagency Agreement, the Secretary again reiterates that “doubts be resolved in favor of 

inclusion of a facility within the coverage of the Mine Act.” Id. 

Appendix A of the Interagency Agreement provides a list of milling processes that 

MSHA has authority to regulate, including crushing, sizing, washing, and drying. 44 Fed. Reg. 

at 22,829-30. Appendix A defines the milling process of “drying” as “the process of removing 

uncombined water from mineral products, ores, or concentrates, for example, by the application 

of heat, in air-actuated vacuum type filters, or by pressure type equipment.” Id. at 22,830. 

Discussion 

I. MSHA Has Authority to Regulate Building 2 Where Mining Equipment Was Repaired 

and Assembled

In addressing the parties’ arguments, the question of whether OSHA or MSHA 

jurisdiction exists in this case requires the Commission to review the Mine Act and its legislative 

history, the OSH Act, the Interagency Agreement, and the Secretary’s interpretation of them. I 

would find that the judge’s conclusion on this issue is consistent with the Mine Act’s plain 

meaning. When determining the meaning of a statute or standard, the Commission first looks to 

its text and structure. Superior Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 (No. 96-

1042, 2003). If the wording is unambiguous, the plain language of the standard will govern, 

even if the Secretary posits a different interpretation. Id.; Blount Int’l, Ltd., 15 BNA OSHC 

1897, 1902 (No. 89-1394, 1992). Both the courts and the Commission have rejected the 

Secretary’s interpretation when it strains the plain meaning of the statutory or regulatory text. 

Worcester Steel Erectors, Inc., 16 BNA OSHC 1409, 1418-19 (No. 89-1206, 1993). Here, the 

plain meaning of the Mine Act compels MSHA coverage of the Bag Plant because the record 

unequivocally establishes that it is a facility where mining equipment was maintained. 

Cranesville’s maintenance crew provided services to the entire contiguous facility located 

in Scotia. The maintenance crew worked out of a portion of Building 2 in the Bag Plant, which 

housed the maintenance shop. There, the maintenance crew serviced, repaired, and assembled 

 

Id. at ¶ D.1, 44 Fed. Reg. at 22,828-29. 
23

not only equipment used at the Bag Plant but also mining equipment used at the quarry and Plant 

5, including front loaders, conveyors, and crushers. The Secretary does not dispute that this 

maintenance work was performed in the Bag Plant, but he contends that it was not sufficient to 

bring the Bag Plant within the scope of MSHA’s authority. I would find, like the judge, that it 

does. 

There is no question that, as the Federal Mine Safety and Health Review Commission 

(“FMSHRC”) has held, MSHA has authority over facilities where “equipment . . . used in[] the 

milling of minerals” is maintained. 30 U.S.C. § 802(h)(1). See Jim Walter Res., Inc., 22 

FMSHRC 21, 25 (2000) (holding that “the language of the statute is clear” that maintenance of 

mining equipment is an integral part of the mining process and proper maintenance is the means 

to achieve a fundamental purpose of the Act—continued operation of safe equipment—and 

comes within MSHA’s authority); U.S. Steel Mining Co., Inc., 10 FMSHRC 146, 148-149 (1988) 

(a repair and maintenance shop that served two extraction sites and a cleaning plant, none of 

which were located on the same property as the maintenance shop, was subject to MSHA 

authority because it repaired and maintained equipment “used in or to be used in” the employer’s 

extraction, mining, and coal cleaning activities within the meaning of section 3(h)(1)(c) of the 

Mine Act). Indeed, the plain language of the Mine Act allows for no other result. See 30 U.S.C. 

§ 802(h)(1)(C) (a mine includes “equipment . . . used in, or to be used in, or resulting from, the 

work of extracting such minerals from their natural deposits in nonliquid form . . . .”); see also 

Arcadian Corp., 17 BNA OSHC 1345, 1347 (No. 93-3270, 1995) (“In a statutory construction 

case, the beginning point must be the language of the statute . . . .”) (citations omitted), aff’d, 110 

F.3d 1192 (5th Cir. 1997). Cranesville’s maintenance shop repaired and maintained mining 

equipment, and this work was integral to the work of the quarry and the mining process. As 

such, I would conclude that the judge correctly found that the maintenance work performed on 

mining equipment in the Bag Plant brought the Bag Plant under MSHA’s authority. 

II. MSHA Has Authority to Regulate Bag Plant Where Cranesville Engaged in Milling 

I would also agree with the judge that Cranesville was engaged in mineral milling at the 

Bag Plant, which brought it under MSHA’s authority. On review, Cranesville argues that one of 

the milling processes listed in the Interagency Agreement—drying—occurred in Building 2 of 
24

the Bag Plant.3 The Secretary, on the other hand, contends that Cranesville’s drying of masonry 

sand was only incidental to the mineral process—done simply to make it easier to load and move 

it—and was, therefore, manufacturing, which gives OSHA jurisdiction. The Secretary further 

challenges the judge’s decision by contending that even if the drying operation constituted 

milling as defined by the Interagency Agreement, the Secretary reasonably declined to classify it 

as milling for purposes of MSHA’s jurisdiction because considerations of administrative 

convenience supported leaving jurisdiction with OSHA. I would agree with the judge that the 

drying that occurred in Building 2 was milling; as such, MSHA has jurisdiction over not only the 

quarry and Plant 5 but also the Bag Plant. 

As noted above, the Mine Act expressly covers “mineral milling,” but does not define 

that term. However, in the Interagency Agreement, the Secretary defines “milling” as the “art of 

treating the crude crust of the earth to produce therefrom the primary consumer derivatives,” 

which includes several processes including drying. Interagency Agreement at App’x. A, 44 Fed. 

Reg. at 22,829-30. “The essential operation in all such [milling] processes is separation of one 

or more valuable desired constituents of the crude from the undesired contaminants with which it 

is associated.” Id., 44 Fed. Reg. at 22,829. The Secretary also defines the milling process of 

“drying” as “the process of removing uncombined water from mineral products, ores, or 

concentrates, for example, by the application of heat, in air-actuated vacuum type filters, or by 

pressure type equipment.” Id., 44 Fed. Reg. at 22,830. 

Here, Cranesville—a mine operator—engaged in the excavation of sand and gravel and 

dried a certain amount of that material at the Bag Plant,4 a facility located on the same property 

as its quarry. Cranesville heated the mined material hauled directly from Plant 5 to remove 

uncombined water from it; the very definition of “drying” as set out by the Secretary in the 

Interagency Agreement. Thus, Cranesville treated “the crude crust of the earth to produce 

therefrom the primary consumer derivatives,” and therefore engaged in “milling” at the Bag 

 

3

 Before the judge, Cranesville also contended that it engaged in another milling process in the 

Bag Plant—sizing. The judge determined that Cranesville was not engaged in sizing, and 

Cranesville does not challenge this determination upon review. 

4 No drying of material from Plant 5 was performed prior to its arrival at Building 2. 
25

Plant.5 In doing so, Cranesville performed functions usually performed by a mine operator—

excavating, milling, and preparing materials for a particular use. 

It is true that drying only occurred approximately twice a week at the Bag Plant, but 

neither the Mine Act nor the Interagency Agreement require drying to be done with any level of 

frequency at a facility to be considered “milling.”6

 Exclusivity is not a limitation that Congress 

included in section 3(h)(1)(C) of the Mine Act. See Thunder Basin Coal Co. v. FMSHRC, 56 

F.3d 1275, 1280 (10th Cir. 1995) (refusing to “ ‘read a limitation into the [Mine Act] that has no 

 

5

 In this case, the desired constituents were sand and gravel and the undesired contaminant was 

water. Water was removed from the crude crust of the earth, and sand and gravel were used to 

make concrete. 

My colleague claims, based on examples provided in the Interagency Agreement, that the 

jurisdictional line between MSHA and OSHA “is drawn at [Cranesville’s] stockpile.” There is 

no indication in the record, however, that the mined material transported to the Bag Plant served 

as a “stockpile,” which is defined as “a reserve supply of something essential accumulated [] for 

use during a shortage.” WEBSTER’S NEW COLLEGIATE DICTIONARY (1975). While the exhibit 

mentioned by my colleague identifies three “stockpiles,” the Secretary acknowledged at the 

hearing that this diagram was admitted into evidence to serve as a general reference for a witness 

to identify the location of cited violations and not for purposes of any dispositive issue. Merely 

transporting mined material from one location to another does not make it a “stockpile.” Further, 

mined material from the quarry and Plant 5 was dried for the first time at the Bag Plant; that it 

had a temporary resting place during this process does not alter what constitutes mineral milling 

covered by the Mine Act. 

6

 Nothing in the Interagency Agreement’s definition indicates that the drying must effect a 

chemical change in the material, as the Secretary now contends on review. As the judge found, 

employees in the Bag Plant were applying heat to excavated material hauled directly from the 

quarry in order to dry the material to make it more suitable for its end use. While the Secretary 

asserts that the judge erred in failing to distinguish between drying performed to render the 

masonry sand a marketable commodity, which is a milling process, and drying performed as part 

of manufacturing, which is not a milling process, even the Secretary’s expert acknowledged at 

trial that the drying done at the Bag Plant made the masonry sand more suitable for its end use: 

Some of the materials that are bagged in these processes include cement. If the 

materials are moist, when they’re mixed with the cement, they will begin to 

hydrate the cement which means the cement will start to set up and get hard, and 

you will have clumps at the least, or you could have the entire bag turn hard and 

be unusable. So the dryness is important to the bagging process. 

In weighing all of the evidence, I would find the opinion of Cranesville’s expert—a former 

Assistant Secretary of Labor for MSHA—to be persuasive; specifically, that the drying that took 

place at the Bag Plant was integral to the mining process, because without drying, the material 

was not suitable for its end use, and constituted milling of mined minerals. 
26

basis in statutory language.’ ” (quoting Utah Power & Light Co. v. Sec’y of Labor, 897 F.2d 447, 

451 (10th Cir. 1990))); Hercules Inc. v. EPA, 938 F.2d 276, 280 (D.C. Cir. 1991) (rejecting an 

interpretation because it “read[] into the statute a drastic limitation that nowhere appear[ed] in 

the words Congress chose . . . .”). As such, like the judge, I would find that the drying process 

that occurred in the Bag Plant was “milling,” and this activity brought working conditions in the 

Bag Plant under MSHA’s authority. 

III. Deference to the Secretary’s Statutory Interpretation Is Not Warranted 

For the reasons discussed above, I would find that the Bag Plant comes within MSHA’s 

authority because it is a mine, as plainly defined by the Mine Act, where mineral milling took 

place, as the Secretary himself has defined it in the Interagency Agreement. As such, a 

deference analysis is not warranted here. If such an analysis was required, however, I would find 

that the Secretary’s interpretation of the Mine Act in this case is not entitled to deference because 

it is inconsistent with the statutory interpretation previously set forth in his Interagency 

Agreement. In addition, the Secretary has failed to follow the Mine Act’s statutory mandate to 

consider “convenience of administration” in making this interpretation. Under these 

circumstances, the Secretary’s interpretation is not reasonable; thus, I would not accord it 

deference. 

The Commission’s review of an agency’s interpretation of a statute is governed by the 

two-part formula announced in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 842 (1984). In reviewing an administrative interpretation of a statute, the Commission must 

first ask “whether Congress has directly spoken to the precise question at issue.” Id. at 842. If 

the statute is unambiguous, then the Commission “must give effect to the unambiguously 

expressed intent of Congress” regardless of the agency’s view. Id. at 843. However, if the 

statute is silent or ambiguous with respect to the specific issue, then the Commission must defer 

to the agency’s interpretation unless that interpretation is unreasonable. Id. at 843–44. However, 

an interpretation that is inconsistent with the plain meaning of the statute is not entitled to 

deference.7 Chevron, 467 U.S. at 843. 

 

7

 While the Commission gives considerable weight to the agency’s representation as to its 

authority to regulate cited working conditions, the Commission “independently reviews the 

statutory and regulatory provisions at issue, as well as the evidence, to determine whether that 

view is reasonably supported by the record.” JTM Industr., 19 BNA OSHC at 1699. See also 

Perez v. Loren Cook Co., 803 F.3d 935, 939 (8th Cir. 2015) (agency’s interpretation not entitled 
27

First, I would conclude, like the judge, that the Bag Plant is part of a mine under section 

3(h)(1)(C) of the Mine Act. In my view, this reading of the relevant statutory provisions is 

compelled by the language of the Mine Act and its legislative history, which explicitly 

contemplates a “need to resolve jurisdictional conflicts” and emphatically states “that what is 

considered to be a mine and to be regulated under this Act be given the broadest possible 

interpretation, and . . . that doubts be resolved in favor of inclusion of a facility within coverage 

of the [Mine] Act.”8

 SEN. REP. NO. 95-181, at 14 (1977). Given that doubts are to be resolved in 

favor of inclusion of a facility within the coverage of the Mine Act, it is not surprising that 

multiple courts in several circuits have found a milling facility to be a mine for purposes of the 

Mine Act. See In re Kaiser Aluminum & Chem. Co., 214 F.3d 586 (5th Cir. 2000) (bauxite 

processing facility that used chemical process to mill bauxite was a mine under the Mine Act);

Herman v. Associated Elec. Coop, Inc., 172 F.3d 1078, 1081 (8th Cir. 1999) (Congress intended 

“mine” to be given the broadest possible interpretation); Donovan v. Carolina Stalite Co., 734 

F.2d 1547, 1554 (D.C. Cir. 1984) (slate gravel processing facility that heated, pressed, and sized 

slate for use in concrete masonry blocks constituted a mine within the meaning of the Mine Act);

Harman Mining Corp. v. FMSHRC, 671 F.2d 794, 796-97 (4th Cir. 1981) (“broad definition of a 

‘mine’ in the Act demonstrates that Congress intended that term to encompass all of the facilities 

used at a coal preparation plant.”); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 

(3rd Cir. 1979) (corporation that separated a burnable coal refuse from dredged sand and gravel 

 

to deference “when the interpretation is plainly erroneous or inconsistent . . . [or] when there is 

reason to suspect that the agency’s interpretation does not reflect the agency’s fair and 

considered judgment on the matter in question . . . . This may be evidenced by an agency’s 

current position conflicting with prior interpretations, by an agency’s use of the position as 

nothing more than a litigating position, or by the use of the interpretation as a post hoc 

rationalization for prior action.”). The Chevron standard also applies to an agency’s 

interpretation regarding its own statutory authority. See City of Arlington, Tex. v. FCC, 133 S. 

Ct. 1863 (2013). 

8

 Like the plain statutory language, the legislative history clearly supports the conclusion that 

Mine Act jurisdiction exists over Cranesville’s Bag Plant. See Marshall v. Stoudt’s Ferry 

Preparation Co., 602 F.2d 589, 591-92 (3d Cir. 1979) (the plain language and the legislative 

history of the Mine Act mandated rejection of a narrow construction of the term “mine”), cert. 

denied, 444 U.S. 1015 (1980). 
28

found to be a mine within the meaning of the Mine Act).9 Under this jurisprudence, I would find 

the Secretary’s interpretation here inconsistent with the statutory interpretation set forth in the 

Interagency Agreement regarding what constitutes mineral milling. 

Second, although the Secretary has been given discretion to determine whether mineral 

milling took place at the Bag Plant, that discretion is not unbridled. In making such a 

determination, the Mine Act requires the Secretary to give “due consideration to the convenience 

of administration resulting from the delegation to one Assistant Secretary of all authority with

respect to the health and safety of miners employed at one physical establishment.” 30 U.S.C. 

§ 802(h)(1). It is not clear whether the Secretary believes he was required to consider 

convenience of administration here,10 but it appears that he never even gave it lip service until 

the onset of litigation. While MSHA regularly inspected the quarry, neither MSHA nor OSHA 

had inspected the Bag Plant prior to OSHA’s 2009 inspection.11

 In fact, during the one exchange 

 

9

 Under the OSH Act, an employer may seek review in the court of appeals in the circuit in 

which the violation occurred, the circuit in which the employer’s principal office is located, or 

the District of Columbia Circuit. 29 U.S.C. § 660(a). The Secretary may seek review in the 

circuit in which the violation occurred or in which the employer has its principal office. 29 

U.S.C. § 660(b). This case arose in New York, which is in the Second Circuit. In general, 

“[w]here it is highly probable that a Commission decision would be appealed to a particular 

circuit, the Commission has . . . applied the precedent of that circuit in deciding the case—even 

though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 

2064, 2067 (No. 96-1719, 2000) (citation omitted). However, I note that the Court of Appeals 

for the Second Circuit has not considered the issue of whether an operation constituted mineral 

milling within the jurisdiction of MSHA. 

10 The Secretary claims in his petition for review that “[w]hile [he] could have considered 

whether the convenience of administration resulting from coverage of the Bag Plant by a single 

agency warranted MSHA assuming jurisdiction over the entire facility, he was not required to 

make such a determination.” 

11 Any contention that Cranesville’s representations as to whether MSHA or OSHA had 

jurisdiction of the Bag Plant is irrelevant. Employers themselves do not get to determine 

whether they are covered or exempt from our Nation’s employment laws. Similarly, any 

presumption of jurisdiction by OSHA because MSHA had failed to inspect the Bag Plant is also 

misplaced. See Pa. Elec. Co. v. FMSHRC, 969 F.2d 1501, 1505 (3d Cir. 1992) (rejecting the 

idea that preemption under section 4(b)(1) of the OSH Act turns on the specifics of an agency’s 

enforcement activities: “The statute does not require us to look beyond the exercise of statutory 

authority by the agency; no language refers to the quality or consistency of the agency’s exercise 

of statutory authority.”) (emphasis in original); see also United Energy Servs., Inc. v. MSHA, 35 

F.3d 971, 977 (4th Cir. 1994); JTM Industr., 19 BNA OSHC at 1701-02 (“A lack of 

enforcement, of course, does not mean that MSHA does not have authority to enforce its 
29

between MSHA and OSHA officials at the regional level prior to OSHA’s inspection, MSHA 

was mistaken as to which Cranesville location OSHA was inquiring about. The Secretary could 

not have adequately weighed convenience of administration without information regarding the 

activities performed within Building 2, particularly when MSHA did not understand which 

facility they were discussing. The Interagency Agreement describes how the Secretary 

determines jurisdiction while considering convenience of administration, as required by the Mine 

Act, in situations where a company’s operations do not fall exclusively within the province of 

“mineral milling.” Here, the Secretary not only disregarded his own guidance but apparently did 

not consider administrative convenience at all—at least, not until the onset of litigation. In such 

situations, courts accord “substantially less deference to post hoc interpretations offered only for 

purposes of litigation . . . .” Natural Res. Def. Council, Inc. v. FDA, 760 F.3d 151, 163 (2nd Cir. 

2014) (citations omitted); Perez v. Loren Cook Co., 803 F.3d 935, 939 (8th Cir. 2015). 

Regardless of whether convenience of administration was considered pre-inspection or 

post hoc, following the onset of litigation, it is not clear what factors the Secretary considered if 

he did engage in this exercise;12 rather, it appears that his assertion that he did the analysis and 

thereupon concluded that it weighed in favor of OSHA jurisdiction should be enough for the 

Commission to accept his determination under the guise of deference.13 Such broad deference is 

 

regulations. MSHA’s authority, not the vigor of its enforcement, is the subject of our inquiry 

under section 4(b)(1) of the OSH Act.”) (citations omitted).

12 The factors contemplated by the Interagency Agreement are: (1) the processes conducted at 

the facility; (2) the relation of all processes at the facility to each other; (3) the number of 

individuals employed in each process; and (4) the expertise and enforcement capability of each 

agency with respect to the safety and health hazard associated with all the processes conducted at 

the facility. Interagency Agreement at ¶ B.5, 44 Fed. Reg. at 22,828. 

13 The Secretary contends that he considered convenience of administration, but claims that the 

list of factors in the Interagency Agreement is non-exhaustive and cites to additional factors not 

included in the Interagency Agreement. Specifically, the Secretary cites Cranesville’s treatment 

of the Bag Plant workers as employees rather than miners, and prior determinations by the 

Secretary that other facilities which were similar to the Bag Plant, including one which was 

nearly identical to it, were not covered by the Mine Act. However, it is a bedrock rule that an 

agency can never “rewrite clear statutory terms to suit its own sense of how the statute should 

operate.” Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014). Thus, I would find 

that the Secretary’s construction of the Interagency Agreement is an attempt to extend the reach 

of the Mine Act beyond the plain meaning of the statute’s and Interagency Agreement’s 

language, and is therefore unreasonable. See Arcadian Corp., 17 BNA OSHC at 1350-51 

(holding that adequacy of notice to regulated parties bears on the reasonableness of the 
30

simply not warranted. See Morton v. Ruiz, 415 U.S. 199, 237 (1974) (in order for an agency 

interpretation of statute to be granted deference, it must be consistent with the congressional 

purpose); see also Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) 

(deference to an agency’s interpretation of its own ambiguous regulation is unwarranted when 

there is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and 

considered judgment on the matter in question). Moreover, in reviewing the steps contemplated 

by the Interagency Agreement when a question of jurisdiction between MSHA and OSHA arises, 

it appears that these steps were not taken here.14

 The Secretary presented no evidence that the 

issue was “transmitted to the respective National Offices . . . to resolve the matter,” nor did 

OSHA utilize the “Office of Legislative and Interagency Affairs . . . to facilitate communication 

and cooperation” with MSHA. See Interagency Agreement at ¶¶ B.8, D.1, 44 Fed. Reg. at 

22,828-29. Indeed, had the Secretary truly considered convenience of administration, it seems 

probable that he would have resolved jurisdiction in favor of MSHA since that agency regularly 

conducted inspections of the Scotia operations, including the quarry and Building 5; thus, it 

would be the most “administratively convenient” to delegate MSHA authority over the Bag 

Plant.15 

Finally, looking at these circumstances through the lens of convenience of administration, 

I fail to see, and the Secretary has failed to illuminate, how it is more convenient to require 

separate MSHA and OSHA inspections of the same property here, owned and operated by a 

 

Secretary’s interpretation of a standard). Such a construction is not a matter of “prosecutorial 

discretion,” as my colleague contends, and therefore her reliance upon Cuyahoga Valley Ry. 

United Transp. Union, 474 U.S. 3 (1981), is misplaced. See id. at 7 (holding that the 

Commission cannot review the Secretary’s decision to withdraw a citation, over the objection of 

an intervening union, because “[s]uch a procedure would . . . allow the Commission to make 

both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of 

roles that Congress did not intend.”). 

14 While my colleague is correct that the Interagency Agreement allows for the Secretary to 

make determinations for “milling [to] be narrowed to exclude from the scope of the term 

processes . . . where such processes are unrelated, technologically or geographically, to mineral 

milling,” no such determination occurred here (and certainly not prior to the issuance of the 

citation); nor can the Secretary ignore the plain meaning of the Mine Act. 

15 Under section 103(a) of the Mine Act, MSHA inspectors are required to regularly inspect 

mines to ensure compliance with the Mine Act and MSHA standards. 30 U.S.C. § 813(a). 
31

single employer.16 I am left with the conclusion that all of this is the result of the Secretary 

having given little consideration to the issue of jurisdiction until after the employer contested the 

OSHA citations and asserted its jurisdictional defense.17 As such, I return to the guidepost, oftcited here in my separate opinion, that both the Mine Act and the Interagency Agreement 

reiterate that coverage of the Mine Act is to be construed broadly and that “doubts be resolved in 

favor of inclusion of a facility within the coverage of the Mine Act.” Interagency Agreement at 

¶ B.5, 44 Fed. Reg. at 22,828. For these reasons, I would find that the Secretary has not shown 

that his interpretation regarding jurisdiction is reasonable, and therefore, I would not give it 

deference.

 

16 Because of this incongruity, the case before us has the Secretary arguing for OSHA 

jurisdiction, while the employer is arguing for MSHA jurisdiction. It is more common for the 

employer to argue for OSHA jurisdiction instead of MSHA, because MSHA is generally 

regarded as having more stringent oversight requirements. See, e.g., Shamokin Filler Co. v. 

FMSHRC, 772 F.3d 330, 332 n.1 and at 333 (3rd Cir. 2014) (noting that Congress gave the 

Secretary more rigorous enforcement mechanisms under the Mine Act than the OSH Act), cert. 

denied, 135 S. Ct. 1549 (2015). While my colleague identifies fall hazards, ladder hazards, 

personal protective equipment hazards, hazards associated with exposure to respirable dust, and 

exposure to hazardous substances as those alleged to have been present at the inspected 

workplace and as “the types of hazards typical of a manufacturing facility,” manufacturing 

facilities certainly do not have a monopoly on these hazards, and they may also exist at a mining 

facility. Indeed, MSHA has promulgated regulations covering these hazards, satisfying the 

second prong of the preemption test—a point which the parties do not dispute. 

17 While not dispositive, I would find that the Secretary had the burden to establish OSHA 

jurisdiction once Cranesville challenged it. When jurisdiction is challenged by a litigant, the 

ultimate burden of proof rests upon the one who asserts it rather than the one who challenges it. 

See, e.g., Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Moms Against Mercury v. FDA, 483 

F.3d 824, 828 (D.C. Cir. 2007); Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002); EEOC v. St. 

Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997). Here, Cranesville raised lack of 

jurisdiction under section 4(b)(1) of the OSH Act on the ground that jurisdiction rests with 

another federal agency—MSHA. This made it the Secretary’s burden to prove that OSHA, not 

MSHA, has jurisdiction. This rule is compliant with the language in section 4(b)(1), which 

recognized the primacy of existing laws in providing that the OSH Act does not apply where 

“other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or 

regulations affecting occupational safety or health.” 29 U.S.C. § 653(b)(1). Indeed, it is a duty 

of a court to independently examine the jurisdictional underpinnings of an action, regardless of 

whether a jurisdictional question is raised by the parties. See United States v. Hays, 515 U.S. 

737, 742 (1995); Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939), superseded by statute, 28 

U.S.C. § 1367, as recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 

(2005). 
32

Like the judge, I would find that the Bag Plant is a mine within the scope of MSHA’s 

statutory authority. As such, I would find that MSHA has authority to regulate the working 

conditions in the Bag Plant, and that it has exercised its authority by issuing regulations that 

apply to the cited conditions. Therefore, I would conclude that OSHA’s authority is preempted 

by section 4(b)(1) of the OSH Act and would agree with the judge’s decision to vacate the 

citations. 

/s/ 

Heather L. MacDougall 

Dated: April 22, 2016 Commissioner 
1 

 United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW 

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket Nos.

Cranesville Aggregate Companies, Inc., d/b/a 

Scotia Bag Plant; and Cranesville Block Co.,

09-2011, 09-2055 & 10-0447

 Respondent.

Appearances: 

Suzanne L. Demitrio, Esquire, Matthew M. Sullivan, Esquire, and Kathryn L. Stewart, Esquire 

U. S. Department of Labor, Office of the Solicitor 

New York, New York 

 For Complainant 

Walter G. Breakell, Esquire and Brian Barraclough, Esquire 

Breakell Law Firm, P.C. 

Albany, New York 

 and

Henry Chajet, Esquire and Brian Hendrix, Esquire 

Patton Boggs, LLP 

Washington, D.C. 

 For Respondent 

Before: Administrative Law Judge Ken S. Welsch 

DECISION AND ORDER

 Cranesville Aggregate Companies (Aggregate) owns and operates a worksite located at 

427 Sacandaga Road in Scotia, New York. Cranesville Block Company Inc. (Block) owns and 

operates a worksite located at 637 East Chester Street in Kingston, New York. In May of 2009, 

the Occupational Safety and Health Administration (OSHA) began safety and health inspections 

at the Scotia worksite in response to an employee complaint. In September of 2009, OSHA 

conducted a safety inspection at the Kingston worksite, also in response to an employee 

complaint. Aggregate and Block are both owned by members of the Tesiero family. 
2 

As a result of the OSHA inspections, on November 10, 2009, the Secretary issued safety 

citations (Docket No. 09-2011)1

 and health citations (Docket No. 09-2055)2 to Aggregate. The 

Secretary proposed penalties in the amount of $221,000.00 for the safety citations and of 

$287,500.00 for the health citations. The Secretary issued safety citations (Docket No. 10-

0447)3

 to Block on February 11, 2010. She proposed penalties totaling $27,500.00 for the safety 

citations. 

Aggregate and Block timely contested the citations. The cases were consolidated and 

assigned for mandatory settlement proceedings. The parties were unable to come to a settlement 

agreement. The cases subsequently were reassigned to Judge Bober, who scheduled the hearing 

to begin on February 1, 2011. During discovery, respondent filed motions seeking to compel the 

Secretary’s production of three internal OSHA memoranda and requested leave to depose three 

employees of the Mine Safety and Health Administration (MSHA). The Secretary opposed these 

motions on the grounds that the memoranda were privileged and the deponents did not possess 

facts relevant to the cases. Judge Bober granted the deposition motion on December 27, 2010, 

and denied the Secretary’s motion for reconsideration on January 10, 2011. 

On January 4, 2011, the Secretary petitioned the Commission for interlocutory review of 

Judge Bober’s discovery orders. The Commission granted the Secretary’s petition on February 

1, 2011, and stayed the consolidated cases during the pendency of the interlocutory review. On 

July 13, 2011, the Commission issued its decision, setting aside Judge Bober’s discovery orders, 

lifting the stay, and directing the Chief Judge to assign the cases for further proceedings. The 

Chief Judge assigned the cases to the instant court on July 19, 2011. 

The parties entered into a pre-hearing stipulation regarding certain serious and otherthan-serious violations alleged in the citations for Docket Nos. 09-2011 and 09-2055 (Exh. ALJ-

 

1

 Under Docket No. 09-2011, the Secretary issued three citations: Citation No. 1 (Serious violations alleged in Items 

1 through 16); Citation No. 2 (Willful violations alleged in Items 1 and 2); and Citation No. 3 (Repeat violations 

alleged in Items 1 through 5). 

2

 Under Docket No. 09-2055, the Secretary issued three citations: Citation No. 1 (Serious violations alleged in Items 

1 through 4); Citation No. 2 (Willful violations alleged in Items 1 through 4); and Citation No. 3 (Repeat violations 

alleged in Items 1 and 2). 

3

 Under Docket No. 10-0447, the Secretary issued one citation, for repeat violations alleged in Items 1, 2a, and 2b. 
3 

1).4 The parties also stipulated to the amendment of Item 4 of Citation No. 3 of Docket No. 09-

2011, to accurately reflect the date of the alleged violation (Exh. ALJ-2). 

The court held a nine-day hearing from November 30, 2011, to December 2, 2011; from 

December 5, 2011, to December 7, 2011; and from January 4, 2012, to January 6, 2012, in 

Albany, New York. The parties filed post-hearing briefs on August 10, 2012, and reply briefs on 

October 19, 2012. 

Aggregate argues that its Scotia worksite falls under the jurisdiction of MSHA, which 

preempts the jurisdiction of OSHA. Therefore, the company argues, the court must vacate the 

citations addressing the Scotia worksite. 

Block contends the Secretary failed to establish violations of the three standards for 

which it was cited at its Kingston worksite. The company also argues that, should the court find 

any violations exist, the violations should not be classified as repeat. Block contends it is not the 

employer at the previously cited facility that is the basis for the repeat classification.

For the reasons discussed below, the court finds that OSHA’s jurisdiction over 

Aggregate’s Scotia worksite is preempted by MSHA under § 4(b)(1) of the Occupational Safety 

and Health Act of 1970 (Act). Therefore, all citations issued under Docket Nos. 09-2011 and 09-

2055 are vacated. Under Docket No. 10-0447, the court vacates Item 1 of the Citation. The 

court affirms Items 2a and 2b of the Citation as repeat violations, and assesses a grouped penalty 

of $5,000.00. 

Docket Nos. 09-2011 and 09-2055

Background 

 Aggregate owns and operates a sand and gravel mine5 located at 427 Sacandaga Road, 

Scotia, New York. Several buildings are on the property, including a group of buildings referred 

to as “Plant 5,” located next to the quarry, and Building 1 and Building 2, which are referred to 

collectively as the “Bag Plant” (Exh. C-3). Building 1 and Building 2 are approximately 600 feet 

 

4

 The stipulations are effective only in the event that the court finds OSHA has jurisdiction over Aggregate’s 

worksite. If no OSHA jurisdiction is found, all items of the citation will be vacated (Tr. 5). 

5

 The gravel and sand mine located at the Scotia site was variously referred to as the “mine,” the “pit,” and the 

“quarry” throughout the hearing. All terms refer to one area from which sand and gravel are excavated on 

Aggregate’s property. 
4 

from the quarry and Plant 5. Railroad tracks run across the property between the quarry/Plant 5 

area and the Bag Plant (Tr. 955, 1808-1809). A private road leads directly from the quarry to the 

Bag Plant (crossing over the railroad tracks) (Tr. 955). The quarry, Plant 5, and the Bag Plant 

are all located on one parcel of real property, owned by Aggregate, with the street address of 427 

Sacandaga Road (Tr. 1637-1648). 

 Aggregate mines sand and gravel from the quarry near the Plant 5 area. Aggregate mines 

approximately 1,500 to 2,000 tons of material a day. Aggregate processes the excavated material 

by running it through a series of crushers, screens, and wash plants in the Plant 5 buildings. The 

screens in the wash plant separate the mined material into four different sized products (one sand 

and three stone). Aggregate places each product in its own stockpile. Aggregate then either 

loads the products into trucks to be sold or moves them to another stockpile for storage (Tr. 928-

929, 1062-1063, 1093-1094, 1097-1099). 

 MSHA classifies Aggregate’s quarry as an “intermittent mine,” which it inspects 

annually (MSHA inspects active mines twice a year) (Tr. 1068, 1139). There is no record of 

MSHA inspecting the Bag Plant across the railroad tracks from Plant 5 (Tr. 1069-1070). The 

Secretary does not dispute that Aggregate’s quarry and the Plant 5 area constitute a mine that is 

under the jurisdiction of MSHA. The Secretary contends, however, that OSHA has jurisdiction 

over the Bag Plant. 

 The Bag Plant buildings housed equipment, including screens, dryers, elevators, hoppers, 

and conveyors, as well as equipment for bagging the finished product (Tr. 879, 883).6

 Building 1 

contained equipment and a silo for storage (Tr. 882-883). Building 2 contained a maintenance 

shop used for repairing mining equipment and was where the bagging operation was performed 

(Tr. 721, 1678-1679). Loaders hauled approximately 60 to 80 tons of excavated material per day 

from the Plant 5 quarry to the Building 2 for bagging (Tr. 713, 1647, 1687). Bag Plant 

employees bagged and packaged mineral and construction materials, including stone, sand, 

cement, Portland cement, blacktop, salt, and premix aggregates such as concrete mix, mortar 

mix, and mix, specialty products, high bond, and surface bond. Most of these materials 

originated outside of Aggregate’s quarry (Tr. 928-929). 

 

6

 Aggregate closed the Bag Plant in September or October of 2010 (Tr. 922). 
5 

 In May 2009, compliance safety and health officer (CSHO) Edwin Rodriguez received a 

telephone complaint regarding health and safety hazards in Building 2 of the Bag Plant at the 

Scotia worksite. His supervisor assigned Rodriguez to investigate the complaint (Exh. C-1; Tr. 

43). 

Initially Rodriguez went to the worksite for Electric City, another company owned by the 

Tesiero family, where Electric City’s safety director (who was also the safety director for 

Aggregate, as well as Block) informed him that Aggregate’s facility was “down the road” (Tr. 

51). The safety director told Rodriguez that Aggregate’s site was “on a quarry” and was “part of 

MSHA” (Tr. 182). Rodriguez called his supervisor and relayed the safety director’s information 

to her. Rodriguez’s supervisor told him, “That’s MSHA’s jurisdiction,” and instructed him to 

return to OSHA’s office (Tr. 182). 

 Subsequently, OSHA reversed its decision and instructed Rodriguez to proceed with the 

inspection of Aggregate’s Bag Plant. On May 12, 2009, Rodriguez arrived at Aggregate’s site 

and conducted an inspection of Building 2, limited to the complaint items. Aggregate’s safety 

director and its plant manager accompanied Rodriguez during his walkaround (Tr. 55, 183, 238). 

Based upon his inspection, Rodriguez recommended the Secretary issue citations for safety 

violations (his recommendation was the basis for the citations issued under Docket No. 09-

2011). Rodriguez also requested OSHA send out an industrial hygienist to inspect Building 2, 

due to the amount of dust he observed (Tr. 64). 

 On May 19, 2009, Rodriguez returned with industrial hygienist (IH) Jason Martin to 

conduct the health inspection. Martin conducted a walkaround inspection of Building 2, 

accompanied by Rodriguez, the safety director, and the plant manager (Tr. 406-407). On June 

3, 2009, Martin returned to Building 2 to conduct air sampling of employees during the bagging 

operation (Tr. 410-411). Martin visited Aggregate’s site a third time, on June 17, 2009, to 

observe Aggregate’s surface bonding process (Tr. 488-489). Based on Martin’s inspection of 

Building 2, the Secretary issued the citations for health violations under Docket No. 09-2055. 

 Each party presented an expert witness at the hearing. The Secretary relied on L. Harvey 

Kirk, a Senior Mine Safety and Health Specialist in MSHA’s Office of Metal and Non-Metal 

Safety. The court qualified him as an expert in mining and milling processes (Tr. 1452). Mr. 

Kirk never visited the Bag Plant, but formed his opinions of its processes by viewing aerial 
6 

photographs of the site, diagrams of Building 1 and Building 2, photographs of equipment, and 

reviewing depositions taken during discovery (Tr. 1410). Mr. Kirk produced a report based on 

his findings (Exh. C-76). Mr. Kirk concluded that the Bag Plant was not a mine within the 

meaning of the Mine Act. 

 Aggregate presented David D. Lauriski, president of Safety Solutions International, a 

safety and health management company that caters to clients in the mining industry. Mr. 

Lauriski is a former Assistant Secretary of Labor for MSHA (Exh. R-33; Tr. 1720). The court 

qualified him as an expert in mining and milling processes (Tr. 1742). Mr. Lauriski visited the 

Bag Plant twice, on December 1, 2010, and again on January 5, 20117. The Bag Plant was shut 

down on both occasions. Mr. Lauriski concluded the Bag Plant was a mine within the meaning 

of the Mine Act. 

 Aggregate ceased operating the Bag Plant following the OSHA inspection, citing budget 

considerations (Tr. 922). 

Preemption Under § 4(b)(1) 

Aggregate contends the citations issued under Docket Nos. 09-2011 and 09-2055 must be 

vacated because OSHA lacks jurisdiction over its worksite. Aggregate argues that the quarry on 

its site constitutes a mine, giving MSHA statutory authority over the entire site. 

Section 4(b)(1) of the Act, 29 U.S.C § 653(b)(1), provides: 

Nothing in this Act shall apply to working conditions of employees with 

respect to which other Federal agencies . . . exercise statutory authority to 

prescribe or enforce standards or regulations affecting occupational safety or 

health. 

In determining whether OSHA’s authority is preempted under § 4(b)(1), the Commission 

evaluates “(1) whether the other federal agency has the statutory authority to regulate the cited 

working conditions, and (2) if the agency has that authority, whether the agency has exercised it 

 

7

 After Mr. Lauriski completed his testimony at the hearing, the Secretary took issue with his second visit, which 

occurred during the hearing, the day before Mr. Lauriski testified. Mr. Lauriski did not inform the Secretary he was 

making the visit, nor afford her counsel with the opportunity of accompanying him. In her brief, the Secretary 

moves to strike all of Mr. Lauriski’s testimony relating to the second visit. The motion is denied, but it is noted that 

the court does not rely on Mr. Lauriski’s testimony regarding his second visit to the Bag Plant for any findings of 

fact in this decision. 
7 

over the cited conditions by issuing regulations having the force and effect of law.” JTM 

Industries, 19 BNA OSHC 1697, 1699 (No. 98-0030, 2001). 

The second prong of the Commission’s evaluation (whether MSHA has exercised its 

authority over the cited working conditions by issuing applicable regulations) is not at issue 

here—the Secretary concedes MSHA has issued the requisite regulations.8

 Therefore, the only 

factor under consideration is whether MSHA has the statutory authority to regulate Building 2 at 

Aggregate’s worksite. 

“The Commission gives considerable weight to a federal agency’s representation as to its 

authority to regulate cited working conditions.” Id. Under the Federal Mine Safety and Health 

Act of 1977 (Mine Act), 30 U.S.C. § 803, MSHA has jurisdiction to regulate the working 

conditions at a worksite where employees are extracting minerals, milling minerals, or preparing 

coal or other minerals. Section 3(h)(1) of the Mine Act, 30 U.S.C § 802(h)(1), defines “coal or 

other mine” as: 

(A) an area of land from which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, 

tools, or other property including impoundments, retention dams, and tailings 

ponds, 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 in nonliquid 

form, or if in liquid form, with workers underground, used in, or to be used in, the 

milling of such minerals, or the work of preparing coal or other minerals, and 

includes custom coal preparation facilities. 

The inclusion of “structures, facilities, equipment, machines, [and] tools” in section (C) 

of the definition signals the intention of Congress that the Mine Act be interpreted broadly: 

[T]here may be a need to resolve jurisdictional conflicts, but it is the Committee’s 

intention that what is considered to be a mine and to be regulated under this Act 

be given the broadest possible interpretation, and it is the intent of this Committee 

that doubts be resolved in favor of the inclusion of a facility within coverage of 

the Act. 

 

8

 “The Secretary acknowledges that MSHA has issued regulations that, for the majority of the citation items, are at 

least somewhat analogous to the OSHA regulations at issue. However, since Respondent cannot show that MSHA 

has authority to regulate the Scotia Bag Plant, this prong is not relevant to the jurisdictional determination.” 

(Secretary’s brief, p. 39, footnote 3). During cross-examination, MSHA inspector James Logan testified that MSHA 

and OSHA had overlapping standards addressing the cited conditions (Tr. 1143-1146). 
8 

S. Rep. No. 181, 95th Cong, 1st Sess. 14 (1977). 

 Shortly after the Mine Act took effect, OSHA and MSHA entered into an interagency 

agreement. The agencies published a “memorandum of understanding” (MOU), the purpose of 

which was “to delineate certain areas of authority” and “provide a procedure for determining 

general jurisdictional questions” (Exh. C-77, p. 1). The MOU explicitly assigns to MSHA 

jurisdiction over milling processes. 

Milling consist of one or more of the following processes: crushing, grinding, 

pulverizing, sizing, concentrating, washing, drying, roasting, pelletizing, 

sintering, evaporating, calcining, kiln treatment, sawing and cutting stone, heat 

expansion, retorting (mercury), leaching, and briquetting. 

(Exh. C-77, p. 4).

 Aggregate contends two of the listed milling processes, sizing and drying, occurred in 

Building 2. The Secretary argues the fundamental processes in which employees engaged in 

Building 2 were bagging and packaging materials, which are not milling processes: “[M]ost of 

the material that was mined in Plant 5 was processed and sold without going to the Bag Plant. 

The material that did go to the Bag Plant was crushed, washed, and screened at the mine, not at 

the Bag Plant.” (Secretary’s brief, p. 46, emphasis in original). 

Sizing

 The MOU defines sizing as “the process of separating particles of mixed sizes into 

groups of particles of all the same size, or into groups in which particles range between 

maximum and minimum sizes” (Exh. C-77, pp. 4-5). Various Aggregate management personnel 

testified generally that the company engages in sizing in the Bag Plant. The testimony of the 

employees who actually worked in the Bag Plant was more specific, however, and raised doubts 

regarding Building 2’s sizing operation. 

The Bag Plant manager testified Aggregate used screens, or “shakers,” to sift the material 

into different sizes (Tr. 1026-1027). Building 2 employees processed the excavated sand 

intended for the surface bonding operation by passing it through one screen to remove oversized 

particles. The oversized particles were not further used, but were discarded (Tr. 1007, 1047). A 

former Aggregate employee likewise testified he observed excavated material in Building 2 

being sifted through a grate to separate large rocks from the sand mix. The large rocks were 

taken off the grate and tossed out into the yard outside Building 2 (Tr.689-690). 
9 

 The Secretary argues this activity was not sizing within the meaning of the MOU, but 

was instead “scalping,” which is the process of removing unwanted material. The court agrees 

with the Secretary. The MOU requires the sizing process to separate particles into groups of “all 

the same size.” Here the Bag Plant employees only divided the material into two groups—the 

sand, which was further processed and sold, and all the oversized particles. The oversized 

particles did not “range between minimum and maximum sizes.” There was no maximum limit 

imposed. The oversized particles were also not grouped for processing. They were treated as 

waste and discarded. 

 The definition of sizing in the MOU provides specific guidelines for the process. Based 

on the evidence presented here, Aggregate’s process did not meet the terms of the definition. It 

is determined that Aggregate was not engaged in sizing in Building 2. 

Drying 

The MOU defines drying as “the process of removing uncombined water from mineral 

products, ores, or concentrates, for example, by the application of heat, in air-acutated vacuum 

type filters or by pressure type equipment” (Exh. C-77, p. 5). Building 2 operations included 

drying a certain amount of material excavated from the quarry to produce a masonry sand mix, 

that would then be bagged (Tr. 1652-1653). Excavated material would be “dumped into a big 

barrel that has a [furnace] gun on the end of it” that would “spin and fluff” the sand to dry it (Tr. 

1654-1655). Aggregate used the dryer room twice a week on average (Tr. 935). Employees 

could not bag sand with moisture in it because it would compromise the quality of the product 

(Tr. 1678). 

The Secretary argues the “limited drying” that occurred in Building 2 was not drying as 

contemplated by the MOU: 

[It] was done simply to dry out the moisture in the materials which have been 

sitting outside; it did not chemically alter the materials. . . . Materials were sent 

through the dryer to separate them because the material was wet or frozen from 

being outside, not from being mined; the material did not stay dry between mining 

and bagging. 

(Secretary’s brief, pp. 21-22). 
10

Nothing in the MOU’s definition of drying indicates that the drying must effect a 

chemical change in the material. Employees in the Bag Plant were applying heat to excavated 

material hauled directly from the mine in order to dry the material. No previous drying occurred 

in the Plant 5 area. 

 The Secretary’s expert, Mr. Kirk, distinguished between drying as a milling activity and 

“incidental drying.” In his view, the drying that took place in Building 2 was not integral to 

processing the sand as a finished product. Mr. Kirk regarded the drying in Building 2 as 

incidental to the milling process, done simply to make it easier to move and load the sand: 

Dried material flows better through chutes. It doesn’t get carried over on 

conveyors and then spill off at the return rollers. The materials that are dry don’t 

cling together, the larger particles with the small particles. They segregate better. 

If you’re working in cold climates like this, and you put wet material into a silo, 

and the temperature drops like we might find outside today, you will get a block 

of solid material when the temperature drops. 

(Tr. 1482). 

 In support of her position that merely drying some excavated material does not qualify as 

drying within the meaning of the MOU, the Secretary cites a seminal MSHA case, Oliver M. 

Elam, 4 FMSHRC 5 (1982). Elam operated a commercial dock on the Ohio River from which 

coal and other material were loaded onto barges. Elam had a crusher on site that it used 

occasionally to break up large pieces of coal to make them easier to load. MSHA asserted 

jurisdiction over the company because it engaged in crushing coal, a milling activity. The 

company disputed MSHA’s jurisdiction. 

 MSHA’s Review Commission sided with Elam, finding MSHA did not have authority 

over the company’s worksite. In so doing, the Commission articulated its test for whether a 

given process is appropriately classified as a milling operation: 

[I]nherent in the determination of whether the operation properly is classified as 

“mining” is an inquiry not only into whether the operation performs one or more 

of the listed work activities, but also into the nature of the operation performing 

such activities. 

Id. at 7. 
11

 MSHA’s Review Commission held that Elam’s work in crushing the coal was done in 

order to make it easier to load, rather than to make it more suitable for its end use: 

[W]ork of preparing coal connotes a process, usually performed by the mine 

operator engaged in the excavation of the coal or by custom preparation facilities 

undertaken to make coal suitable for a particular use or to meet market 

specifications. 

Id. at 8. 

 Here, Aggregate, the mine operator, engaged in the excavation of the sand and gravel and 

dried the material at the Bag Plant, its own facility, to make it more suitable for use by the end 

user. Mr. Kirk acknowledged the drying done by Aggregate not only made the material easier to 

handle for storing and loading, it made it more suitable for its end use: 

Also, if you’re packaging the materials, customers prefer to have dry material 

come out of their bags . . . . Some of the materials that are bagged in these 

processes include cement. If the materials are moist, when they’re mixed with the 

cement, they will begin to hydrate the cement which means the cement will start 

to set up and get hard, and you will have clumps at the least, or you could have the 

entire bag turn hard and be unusable. So the dryness is important to the bagging 

process, to the bagging process and also to the handling of it through their system 

as its being conveyed and stored. 

(Tr. 1483; emphasis added). 

 Here, the Secretary’s expert himself concedes that the drying process done in the Bag 

Plant renders the material more suitable for its end use. Indeed, failing to dry the material could 

result in an unusable product. 

 The record establishes that dying occurred in Building 2. This milling process is not the 

primary task in which the Bag Plant employees engaged, but it was a regular and significant part 

of Building 2’s weekly schedule of operations. The MOU does not require a certain volume of 

material to be milled at a facility before it is determined to be under the jurisdiction of MSHA. 

The limited drying process that occurred in Building 2 is sufficient to bring the Bag Plant under 

MSHA’s authority. 

Maintenance Shop

Furthermore, it is undisputed that Aggregate employees repaired mining equipment in 

one of the rooms of Building 2. Aggregate’s maintenance supervisor had his own crew, whom 

he assigned from the maintenance shop in Building 2. In the maintenance shop the maintenance 
12

crew repaired crusher parts and bucket loaders that were damaged in the quarry (Tr. 1025-1026). 

The maintenance crew worked in all areas of Aggregate’s property, including the sand and 

gravel mine (Tr. 968). The maintenance supervisor met with his crew at the maintenance shop 

and from there assigned tasks throughout Aggregate’s property, including the gravel and sand 

mine (Tr. 713, 721, 889, 968). CSHO Rodriguez conceded that Aggregate’s maintenance crew 

worked in both areas of the property: “[T]hey would do maintenance on this side, on the 

bagging facility, but they also worked on the quarry side” (Tr. 74). This alone is sufficient to 

bring the Bag Plant within the purview of the Mine Act. 

MSHA’s Lack of Enforcement 

 The Secretary argues that, despite annual inspections of the quarry and Plant 5 area, 

MSHA had never conducted an inspection of the Bag Plant. MSHA Inspector Lynn Allen 

testified that when he asked the Plant 5 manager about the Bag Plant on the other side of the 

railroad tracks, the manager told him the property across the railroad tracks was not under 

MSHA (Exh. C-69, pp.18-19). MSHA Inspector Matthew Mattison testified that when he 

inquired about the facility on the other side of the tracks, the Plant 5 manager informed him the 

facility was a bagging plant that was not under MSHA’s jurisdiction (Tr. 1064, 11076, 1085-

1086). MSHA Inspector James Logan stated that when he had finished inspecting the quarry and 

the Plant 5 area during his inspection, he asked the Plant 5 manager if there were any other parts 

of the mine property that needed to be inspected. The Plant 5 manager told him no (Tr. 1110, 

1123). 

The Secretary’s contends that Aggregate has, through the years, told the various MSHA 

inspectors who have asked about the Bag Plant that it is not under MSHA’s jurisdiction. 

Therefore, she argues, Aggregate should be held to this position and not be permitted to assert 

now that the Bag Plant is, in fact, under MSHA’s authority. 

The Secretary’s argument is rejected. It should be obvious that the mine operator is not 

entitled to set the jurisdictional limits of its property. The MSHA inspectors relied on the 

assurances of Aggregate’s plant manager, an interested party likely not inclined to invite further 

inspection of his worksite, to tell them where they should inspect. They were not required do so. 

As MSHA inspector Logan acknowledged, MSHA has “warrantless right of entry” (Tr. 1108). 
13

See § 103(a), 30 U.S.C. § 813(a); Donovan v. Dewey, 452 U.S, 594 (1981). It was within their 

authority to inspect the Bag Plant (with or without the plant manager’s consent). 

MSHA inspector James Logan conceded that it is not up to the employer to define the 

limits of MSHA’s authority: “Jurisdiction is dependent upon what the process is being 

conducted there” (Tr. 1137). Jurisdiction is determined by the specific conditions of the 

worksite—not the opinion of a plant manager or any other employee. 

MSHA’s previous failure to inspect the Bag Plant is not a factor in determining current 

jurisdiction. The courts have rejected the argument that failure to exercise statutory authority 

negates preemption: 

United Energy’s argument assumes that the enforcement history of the agency is 

relevant in determining whether MSHA has preempted OSHA’s jurisdiction. It is 

not. Under section 4(b)(1), MSHA may preempt OSHA’s regulatory authority by 

“exercising statutory authority to prescribe . . . regulations affecting” the area at 

issue. The plain language of that section indicates that this is all that MSHA must 

do to preempt this regulatory field. 

United Energy Services, Inc. v. MSHA, 35 F.3d 971, 977 (4th Cir. 1994). 

 The Commission is similarly emphatic that MSHA’s failure to inspect a site over which it 

has authority is not relevant to the issue of preemption: “A lack of enforcement, of course, does 

not mean that MSHA does not have authority to enforce its regulations. MSHA’s authority, not 

the vigor of its enforcement, is the subject of our inquiry under section 4(b)(1) of the OSH Act.” 

JTM Industries, 19 BNA OSHC at 1701-1702.

 The record establishes Aggregate was engaged in drying excavated material in Building 2 

and that its maintenance crew repaired mining equipment in the maintenance shop located there. 

Keeping in mind that it is the intent of Congress that “doubts be resolved in favor of the 

inclusion of a facility within coverage of the [Mine] Act,” the court determines the Bag Plant 

was a mine within the scope of MSHA’s regulatory authority. Because MSHA has statutory 

authority to regulate the working conditions in the Bag Plant, the court concludes MSHA 

preempts OSHA’s authority under § 4(b)(1) of the Act. Accordingly, all items of the citations 

issued under Docket Nos. 09-2011 and 09-2055 are vacated.9

 

9

 At the hearing on January 4, 2012, the court granted, over the Secretary’s objection, Aggregate’s motion to amend 

its answer to assert the defense of lack of informed consent (Tr. 1386). The basis for this defense is Aggregate’s 

(continued on next page) 
14

Docket No. 10-0447: The Kingston Worksite 

Background 

On September 4, 2009, CSHO Rodriguez and IH Martin arrived at Block’s worksite, a 

ready mix facility, in Kingston, New York, in response to an employee complaint. The OSHA 

representatives met with Block’s plant manager and its safety director (who is also Aggregate’s 

safety director), who accompanied them on a walkaround inspection (Tr. 164, 541-548). Based 

upon the inspection conducted by CSHO Rodriguez and IH Martin, the Secretary issued a 

citation alleging three repeat violations of OSHA standards to Block on February 11, 2010. 

The Citation 

The Secretary has the burden of establishing the employer violated the cited standard. 

To prove a violation of an OSHA standard, the Secretary must show by a 

preponderance of the evidence that (1) the cited standard applies; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees had access to 

the violative condition; and (4) the cited employer either knew or could have 

known with the exercise of reasonable diligence of the violative condition. 

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). 

Item 1: Alleged Repeat Violation of 29 C.F.R. § 1910.132(a) 

Item 1 of the Citation alleges: 

Protected equipment . . . [was] not provided, used, and maintained . . . wherever it 

was necessary by reasons of hazards of processes of environment [or] chemical 

hazards . . . encountered in a manner capable of causing injury or impairment in 

the function of any part of the body through absorption, inhalation, or physical 

contact: 

(a) On or about 09/04/2009, in the yard washing area, for employees that work with 

TKO-S which contains ingredients such as, but not limited to, hydrochloric acid. 

The employer did not enforce the use of personal protective equipment such as, 

but not limited to, safety glasses and gloves. 

 Section 1926.1910.132(a) provides: 

Protective equipment, including personal protective equipment for eyes, face, 

head, and extremities, protective clothing, respiratory devices, and protective 

shields and barriers, shall be provided, used, and maintained in a sanitary and 

 

contention that IH Martin made misleading statements to Aggregate’s plant manager and its safety director when 

interviewing them during OSHA’s inspection. Having determined that the Mine Act preempts OSHA’s jurisdiction 

over the Scotia site, the court finds the informed consent issue is moot, as are all other issues raised by the parties 

with respect to the Scotia worksite inspections. 
15

reliable condition wherever it is necessary by reason of hazards of processes or 

environment, chemical hazards, radiological hazards, or mechanical irritants 

encountered in a manner capable of causing injury or impairment in the function 

of any part of the body through absorption, inhalation or physical contact. 

 As they conducted the walkaround inspection, CSHO Rodriguez and IH Martin observed 

an employee washing a ready mix truck in the facility’s yard (Exh. C-55; Tr. 164, 551). The 

employee was wearing “normal clothing” and was not wearing face protection or gloves (Tr. 

165). The employee had transferred a solution from a 55-gallon drum to a 5-gallon bucket. IH 

Martin later determined the solution was “a TKO solution that’s an acid wash to wash the ready 

mix trucks” (Exh. C-54; Tr. 549). The plant manager acknowledged that the employee should 

have been using face and hand protection. He informed the OSHA representatives that Block 

provides personal protective equipment (PPE) to its employees (Tr. 551). 

Applicability of the Standard 

 Block does not dispute the applicability of § 1910.132(a) to the cited condition. The 

standard requires employees to wear PPE when exposed to chemical hazards. It is undisputed 

the TKO solution contained hydrochloric acid, a corrosive chemical. Section 1910.132(a) 

applies. 

Failure to Comply with the Terms of the Standard 

Block’s safety director testified that the TKO solution Block uses comes in a 55-gallon 

drum, and has a concentration of 22% hydrochloric acid (Tr. 1219). Upon receipt of the drum, 

Block employees transfer half of the solution to another 55-gallon drum and add water to the two 

half-full drums, resulting in two drums containing a solution with a concentration of 11% 

hydrochloric acid (Tr. 1284-1285). 

 During the inspection, Block provided a material safety data sheet (MSDS) to OSHA for 

the TKO solution. That MSDS was for a product called TKO-S (Exh. C-54; Tr. 549-550). Dr. 

Kathleen Fagan is a Board-certified physician who specializes in occupational medicine. She 

holds a master’s degree in Public Health and has thirty years of experience in her field (Tr. 748-

749). The court qualified her as an expert in occupational medicine and health hazards, 

including the potential health effects of exposure to chemical contact hazards (Tr. 769, 778-779). 

Dr. Fagan called Commercial Maintenance Supply, Inc., the manufacturer of the TKO solution, 

to obtain a copy of the MSDS more legible than the one supplied by Block. The manufacturer 
16

informed her that the product it supplies to Block is actually TKO-PLUS3 (Exh. C-61; Tr. 803-

804, 839). The MSDS for TKO-S states that its concentration of hydrochloric acid is less than 

11%, but the raw material contains a maximum of 36.5%. The MSDS for TKO-PLUS3 states 

that the concentration of hydrochloric acid is less than 70%, but the raw material contains a 

maximum of 36.5% (Exhs. C-54, C-61; Tr. 805). 

Hydrochloric acid is a hazardous substance that “can cause serious burns upon contact 

with the skin,” “can cause burns to the eyes,” and “be irritating when inhaled” (Tr. 803-804, 807-

808). NIOSH recommends the use of PPE for workers exposed to hydrochloric acid, including 

gloves and splash goggles (Tr. 808). A solution containing between 3% and 10% hydrochloric 

acid “becomes irritating to the skin, and above that depending on the length of time of the 

exposure, you will begin to see burns” (Tr. 807). 

Block argues the Secretary did not establish the actual concentration of the solution the 

employee was using at the time he was observed washing his truck. The company speculates 

the employee may have further diluted the solution with water in the 5-galllon bucket. IH Martin 

did not take a sample of the solution and have it analyzed in a lab (Tr. 635). Dr. Fagan stated if 

the solution was diluted to below 3%, it would be unlikely to cause harm to an exposed 

employee (Tr. 834-835). Block contends that without an analysis, the Secretary cannot prove the 

exposure levels of the TKO solution presented a significant risk to the employee. 

Block’s argument is rejected. There is no persuasive evidence the employee further 

diluted the solution once he transferred it to the bucket. The employee involved did not testify. 

Block’s safety director stated that drivers at another Cranesville plant told her they add additional 

water to the solution before using it to wash their trucks, but she had no personal knowledge that 

Block’s drivers followed this practice (Tr. 1287-1288). Block cites IH Martin’s affirmative 

answers at the hearing to the questions, “[D]id you consider that water was added to that solution 

to conduct the washing?” and “And, do you have evidence that water was added?” as evidence 

the employee further diluted the solution (Tr. 635). The court regards his affirmative answers as 

ambiguous as to whether IH Martin was referring to the initial dilution that occurred upon arrival 

of the product at the plant (when it was diluted by half), or to a later dilution made by the 

employee. Block itself requires its employees to wear PPE when using the TKO solution (Exh. 

R-24). 
17

The Secretary has established that the employee violated the terms of § 1910.132(a) by 

failing to wear PPE while washing his truck with the TKO solution containing a concentration of 

at least 3% hydrochloric acid, a hazardous chemical. 

Employee Access to Violative Condition 

 Block’s employee had access to the violative condition. CSHO Rodriguez and IH 

Martin, as well as the Block’s plant manager and its safety director, observed the employee in the 

act of using the TKO solution without wearing the required PPE (Exh. C-55). 

Employer Knowledge 

 The Secretary contends Block had constructive knowledge of the violation because the 

employee was working in plain view in the yard of the Kingston facility. Block argues the plant 

manager, whose office did not afford a view of the yard, had no actual or constructive knowledge 

of the employee’s violative conduct. 

Block has a written safety program which includes a PPE policy requiring employees to 

wear PPE when potentially exposed to hazardous substances (Exh. C-73). Block also prepared a 

Job Safety Analysis for the Kingston facility that identified hazards and prescribed corrective or 

preventive actions (Exh. R-20). Block trains new hires in the PPE policy and retrains existing 

employees on an annual basis (Tr. 1298). Block provides its employees with all required PPE 

(Tr. 638). The employee observed washing his truck acknowledged that he had received PPE 

training and that his PPE was in his truck (Tr. 1363). 

The only two supervisory employees in attendance at the facility that the record mentions 

are the plant manager and the safety director, whom the plant manager called to the facility when 

the OSHA personnel arrived. Prior to the discovery of the employee washing his truck, the plant 

manager had attended an opening conference with CSHO Rodriguez and IH Martin, had called 

the safety director, and had waited with the OSHA representatives for her arrival. The plant 

manager then accompanied the OSHA representatives on the walkaround inspection. 

 There is no indication in the record how long the employee had been engaged in washing 

his truck when he was discovered. It is possible he did not begin the violative activity until after 

the OSHA personnel arrived. The plant manager’s attention was entirely taken up with the 

opening conference and OSHA inspection once CSHO Rodriguez and IH Martin arrived. The 

court concludes the plant manager’s failure to discover the employee’s violative conduct was not 
18

due to the lack of reasonable diligence. The employee was engaged in a transitory activity that 

violated written safety procedures in which he had been trained. 

 The Secretary has failed to establish Block had either actual or constructive knowledge of 

the violative conduct. Item 1 of the Citation is vacated. 

Items 2a and 2b: Alleged Repeat Violations of 29 C.F.R. §§ 1910.1200(f)(5)(i) and (ii)

 Items 2a and 2b of the Citation each allege: 

On or about 09/04/2009, in the yard washing area, a 5 gallon container of TKOAcid solution was not labeled with its contents. 

 Sections 1910.1200(f)(5)(i) and (ii) provide in pertinent part: 

[T]he employer shall ensure that each container of hazardous chemicals in the 

workplace is labeled, tagged or marked with the following information: 

(i) Identity of the hazardous chemical(s) contained therein; and 

 (ii) Appropriate hazard warnings, or alternatively, words, pictures, symbols, or 

combination thereof, which provide at least general information regarding the 

hazards of the chemicals, and which, in conjunction with the other information 

immediately available to employees under the hazard communication program, 

will provide employees with the specific information regarding the physical and 

health hazards of the hazardous chemical. 

Items 2a and 2b refer to the 5-gallon bucket containing the TKO solution cited in Item 1 

of the Citation. Nothing on the exterior of the bucket identified the contents in the bucket or 

warned of the potential hazards posed by contact with the contents (Tr. 561). Block’s employees 

routinely transferred the solution from the 55-gallon drum (which was labeled) into the 5-gallon 

bucket when they used the solution for cleaning. They “placed the larger container of solution 

into the smaller one so that they could use a brush to brush the truck off” (Tr. 561). 

Applicability of the Standard 

The cited standard applies to the cited conditions. Section 1910.1200(b)(2) of the Hazard 

Communication Standard (HCS) states that the HCS “applies to any chemical which is known to 

be present in the workplace in such a manner that employees may be exposed under normal 

conditions of use or in a foreseeable emergency.” Section 1910.1200(b)(1) requires “all 

employers to provide information to their employees about the hazardous chemicals to which 

they are exposed.” The TKO solution at issue contains hydrochloric acid, a hazardous chemical. 
19

Failure to Comply with the Terms of the Standard 

 Block stored the 55-gallon labeled drum and the 5-gallon unlabeled bucket outside its 

building at the worksite (Exhs. C-56 through C-59; Tr. 559-561). Block contends it is exempt 

from the labeling requirement under § 1910.1200(f)(8) of the HCS. That exemption provides in 

pertinent part: 

The employer is not required to label portable containers into which hazardous 

chemicals are transferred from labeled containers, and which are intended only for 

the immediate use of the employee who performs the transfer. 

 As the party claiming the exemption, Block has the burden of proving it meets the 

requirements of § 1910.1200(f)(8). IH Martin acknowledged that the employee at issue 

transferred the TKO solution to the bucket for the immediate use of washing his truck (Tr. 637). 

It is undisputed, however, that the employee left the unlabeled bucket containing the TKO 

solution sitting out after finishing with it (Exhs. C-56 through 59; Tr. 556, 562). 

Sections 1910.1200(f)(5(i) and (ii) are designed to provide employees with information 

regarding the hazardous chemicals to which they may be exposed in the workplace. After the 

employee who originally used the solution in the bucket left the area, another employee could 

have come into contact with the contents of the unlabeled bucket. The absence of labeling could 

delay appropriate treatment of any injuries sustained by contact with the corrosive chemical. 

Block has failed to establish its employee transferred the contents of the labeled drum to the 

bucket only for immediate use, under § 1910.1200(f)(8). 

Block’s failure to comply with the terms of §§ 1910.1200(f)(5)(i) and (ii) is established. 

Employee Access to Violative Condition 

Block stored the unlabeled bucket in an outside area, accessible to all employees working 

at the facility. Block had provided nine employees with face shields, which it designated as 

being “strictly for truck wash, TKO” (Exh. R-24; Tr. 1278). The day of the inspection, the 

employee who had used the bucket to wash his truck left the unlabeled container sitting out, still 

full of the TKO solution (Tr. 556, 559, 562). Block’s employees had access to the violative 

condition. 
20

Employer Knowledge 

 Block had actual knowledge its employees transferred the TKO solution to an unlabeled 

bucket. It was Block’s practice to store the unlabeled bucket in plain view next to the TKO drum 

for use by its employees (Tr. 556, 562). The safety director testified she was aware Block had 

difficulty keeping the bucket labeled because the labels would get wet and smear or peel off. 

She had experimented with laminating the labels and attaching them to the buckets with zip ties, 

but those regularly ripped off (Tr. 1265-1266).10

 Block did not establish the employee violated a company rule when he left the bucket of 

TKO solution sitting out. Block does not assert the employee engaged in unpreventable 

misconduct, an affirmative defense. The Secretary has established Block committed a violation 

of §§ 1910.1200(f)(i) and (ii). 

Repeat Classification 

The Secretary classified Items 2a and 2b as repeat violations of the Act. The Citation 

states: 

Cranesville Block was previously cited for a violation of this Occupational 

Safety and Health Standard 1910.1200(f)(5)(i) which was contained in OSHA 

inspection number 311974992, Citation Number 01, Item Number 8a, issued on 

01/05/2009, with respect to a workplace located at Big Boom Road, Glens Falls, 

New York 12801. 

Cranesville Block was previously cited for a violation of this Occupational 

Safety and Health Standard 1910.1200(f)(5)(ii) which was contained in OSHA 

inspection number 311974992, Citation Number 01, Item Number 8b, issued on 

01/05/2009, with respect to a workplace located at Big Boom Road, Glens Falls, 

New York 12801. 

In order to establish a repeat violation, the Secretary must prove that at the time of the 

alleged repeat violation, a Commission final order exists against the same employer for a 

substantially similar violation. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). 

The Secretary issued a citation to “Cranesville Block Co. Inc.” for violations at a Glens Falls 

 

10 Block’s safety director testified Block had adopted a method of using color-coded buckets to identify their 

contents. Signs posted on the walls of the facility would enable employees to match the color of the buckets to their 

contents. Buckets intended for the transfer of the TKO solution were supposed to be red (Tr. 1265-1266). Upon 

being shown the photographs of the white bucket at issue during cross-examination, the safety director 

acknowledged the color-coding system had gone into effect after the September 2009 OSHA inspection that resulted 

in the instant Citation (Tr. 1320-1321). 
21

facility on January 5, 2009. The Commission entered a final order for that citation on February 

23, 2009, but the name of the company was changed to “Glens Falls Ready Mix, Inc.” (Exh. C67).11

 Items 8a and 8b of the citation in that case allege violations of §§ 1910.1200(f)(5)(i) and 

(ii) for failing to label a 55-gallon drum of plasticizer containing a diluted solution of 

formaldehyde. Block does not dispute that a final order exists in the Glens Falls case or that the 

cited violations were substantially similar to the ones cited in Items 2a and 2b of the instant case. 

Block contends, however, that it is “a separate and distinct corporate entity, and does not own the 

facility located at Big Boom Road, Glens Falls, New York, which is owned by Glens Falls 

Ready Mix, Inc.” (Block’s brief, p. 89). 

Single Employer 

Where the Secretary alleges a single employer relationship, she bears the burden of 

proving its existence. Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356, 

1358, n. 4 (No. 99-0958, 2011), aff’d 692 F.3d 65 (2d Cir. 2012). 

Under Commission precedent, separate entities have been regarded as a single 

employer when three elements are present: (1) a common worksite; (2) 

interrelated and integrated operations; and (3) a common president, management, 

supervisor or ownership. 

Altor, Inc., 23 BNA OSHC 1458, 1463 (No. 99-0958, 2011), aff’d 23 BNA OSHC 2073 

(3d Cir. 2012).12

 

11 For clarity, the court will at times use the full names of the various Cranesville companies rather than the 

shortened versions (e.g., “Aggregate” and “Block”) that have been used throughout the decision. 

12 Subsequent to the hearing in this case and the filing by the parties of their post-hearing briefs, the Second and 

Third Circuits issued decisions in Loretto and Altor, respectively. The courts provide strong support for the 

application of the four-prong test for single employer adopted by the National Labor Relations Board (NLRB) rather 

than the Commission’s three-prong test. The NLRB test dispenses with the element of a common worksite and 

instead considers (1) interrelated operations; (2) common management; (3) centralized control of labor relations; and 

(4) common ownership. The Third Circuit applied the NLRB’s test in upholding the Commission’s finding of a 

single employer in Altor. The Second Circuit upheld the Commission’s determination in Loretto that a group of 

affiliated nursing homes did not constitute a single employer. While stopping short of applying the NLRB’s test (for 

procedural reasons), the Second Circuit states that the Secretary’s interpretation of the Act “will receive our 

deference even in the face of contrary Commission interpretations.” 692 F.3d at 75. 

In her reply brief, the Secretary urges the court to ignore Commission precedent and apply the four-prong NLRB test 

in the present case. The court declines to do so. The Commission issued Loretto and Altor, as well as Southern 

Scrap Metals Co., Inc., 23 BNA OSHC 1596 (No. 94-3393, 2011) (reiterating three-prong test for single employer 

as Commission precedent), in 2011. The court will follow current Commission precedent in deciding this issue. 

 
22

Cranesville Block Co., Inc., owns 20 to 30 facilities engaged in operations including 

concrete block manufacturing, concrete ready mix manufacturing, concrete precast, gravel pits, 

and sand pits. Cranesville Aggregate Companies, Inc., mines and processes aggregates and 

operates facilities at approximately ten sites. Cranesville Management Company is a 

management company for all the Cranesville companies. It provides management services for 

the following Cranesville companies: Cranesville Block Co. Inc., Cranesville Aggregate 

Companies, Inc., Fulmont Ready-Mix Company, Inc., Glens Falls Ready Mix, Inc., and John 

Tesiero, LLC. Cranesville Block Company wholly owns Cranesville Management Co. (Exh. C85; pp. 16, 18-20, 27, 30, 32).13

 The issue is whether the necessary elements exist to classify 

Cranesville Block Co. Inc., and Glens Falls Ready Mix, Inc., as a single employer. 

(1) Common Worksite 

It is apparent that Cranesville Block Co. Inc., and Glens Falls Ready Mix, Inc., do not 

physically share a common geographic worksite where their employees engage in ready mix 

operations; Block’s facility is in Kingston, New York, while Glens Falls’s facility is in Glens 

Falls, New York. The companies do, however, share a common worksite for their principal 

executive offices. Cranesville Block Co. Inc., Cranesville Aggregate Companies, Inc., 

Cranesville Management Company, Glens Falls Ready Mix, Inc., and Fulmont Ready-Mix 

Company all use the same address as their mailing address and as their principal executive 

offices: 1250 Riverfront Center, Amsterdam, New York, 12010 (Exhs. C-82, C-85, pp. 16, 29). 

The five companies share a suite in the building (Exh. C-85, p. 107). The companies also share 

administrative personnel who work at the common corporate worksite at Riverfront Center (Exh. 

C-84; Exh. C-85, pp.105-106). 

Block also maintains a physical presence at Glens Falls facility. Exhibit C-9 is a copy of 

a photograph showing a billboard displayed at the top of a building at the Glens Falls facility. 

The billboard reads: 

Cranesville Block Co. 

Glens Falls Ready Mix 

For Concrete Call 

(518) 793-1695 

 

13 Exhibit C-85 is a copy of Joseph Tesiero’s deposition in this case, taken on October 13 and 14, 2011. Mr. Tesiero 

did not testify at the hearing. 
23

Block’s “CBC” company logo appears between the two corporate names. Mr. Tesiero 

testified the purpose of the sign was to promote customer “brand recognition” with Block (Exh. 

C-85, p. 288). The telephone number connects to a dispatcher at the common corporate offices 

at Riverfront Center, who takes orders on behalf of all the companies located there (Exh. C-85, p. 

288). 

(2) Interrelated and Integrated Operations 

From May 1, 2008, to November 10, 2009, Block, Aggregate, Glens Falls, and Fulmont 

Ready-Mix Company, Inc., employed some of the same employees, including those who worked 

in administration, billing, purchasing, human resources, and safety. These shared employees 

were employed by Cranesville Management Company and their salaries were funded by each of 

the Cranesville companies on a pro-rata basis, based on the percentage of income generated by 

each company. Employees were paid using one centralized payroll system (Exhs. C-84, C-85, 

pp. 108-109, 111, 114, 118, 125, 133-134, 273). 

Management employees from the four companies were also employed by Cranesville 

Management Company and their salaries were funded and allocated between each of the 

Cranesville companies, based on the percentage of time spent doing work on behalf of each 

company (Exh. C-85, pp. 217-219; Tr. 1170). All four companies shared the same computer 

network and software, expense coding system, website, and domain name for employee email 

addresses (Exh. C-85, pp. 145, 152, 154, 212). The homepage of the companies’ website reads, 

“The Home of the Cranesville Companies in Amsterdam, NY 12010” (Exh. C-70). 

The companies collectively provided benefits to their employees. They shared a common 

pension plan and health insurance plan (Exh. C-85, pp. 128-129, 136-141). The companies also 

shared a consolidated joint application for extensions of credit, by which a purchaser of any 

Cranesville product could submit an application to Block to use credit at any of the Cranesville 

companies (Exh. C-85, pp. 223-226). 

The Cranesville companies’ banking transactions were also shared. Joseph Tesiero, his 

father John A. Tesiero, Jr., his mother Elizabeth Tesiero, and his brother John A. Tesiero III, all 

of whom held officer positions in at least one of the companies, each had signatory authority 

over the bank accounts of all four companies, as well as Cranesville Management Company 

(Exh. C-85, pp. 260-261). The Cranesville companies draw funds from numerous accounts. In 
24

some circumstances different Cranesville companies issued checks from the same account with 

the same routing number (Exh. C-85, pp. 78-83). The four companies received accounting 

services in accordance with a single agreement with an outside accounting firm (Exh. C-85, pp. 

252-253). Block and Aggregate filed a consolidated federal tax return, as did Glens Falls and 

Fulmont Ready-Mix, Inc. (Exh. C-85, pp. 253-254). 

When a purchase is beneficial to all the companies managed by Cranesville Management 

Company, one company pays the expense out of a general fund. The expense is then allocated to 

each of the companies on a pro-rata basis, based on the percentage of income generated by each 

company. The Cranesville companies keep a running tally of which company has paid for each 

purchase, as well as the company’s pro-rata share of the expense for each purchase. The 

companies transfer money at the end of the year to balance out a company’s account with the 

records of expenses paid (Exh. C-85; pp. 77-72). 

(3) Common President, Management, Supervisor or Ownership 

Joseph Tesiero’s sister is Carol T. Whelly, who is married to William A. Whelly, Jr. 

Joseph Tesiero’s other sister, Elizabeth Gaines, is married to William Gaines (Exh. C-85, pp. 17, 

42, 44-45). From 2007 to 2009, the officers of Cranesville Block Co. Inc. were: John A. 

Tesiero, Jr., president; John A. Tesiero III, vice-president; William A. Whelly, Jr., assistant vicepresident; Steven M. Dowgielewicz14, assistant vice-president; Carol T. Whelly, secretary; and 

Elizabeth Tesiero, treasurer (Exh. C-83). 

Block owns all the shares of Aggregate. From 2007 to 2009, the officers of Aggregate 

were: Joseph Tesiero, president; William A. Whelly, Jr., vice-president; Carol T. Whelly, 

secretary; and John A. Tesiero III, treasurer (Exh. C-83). 

From 2007 to 2009, the officers of Fulmont Ready-Mix Company, Inc., were: Elizabeth 

Tesiero, president; John A. Tesiero III, vice-president; Carol T. Whelly, secretary; Carol T. 

Whelly, treasurer; and William A. Whelly, assistant treasurer (Exh. C-83). 

Fulmont Ready-Mix Company, Inc., owns all the shares of Glens Falls Ready Mix, Inc. 

From 2007 to 2009, the officers of Glens Falls were identical to the officers of Fulmont: 

 

14 Mr. Dowgielewicz is the only officer in the four companies who is not, as far as the court knows, related by blood 

or marriage to the Tesiero family. 
25

Elizabeth Tesiero, president; John A. Tesiero III, vice-president; Carol T. Whelly, secretary; 

Carol T. Whelly, treasurer; and William A. Whelly, assistant treasurer (Exh. C-83). 

The four companies share the same safety director (Exh. C-84).15 If OSHA showed up at 

any of the four Cranesville companies, the policy was to call the safety director. She would 

either go to the site herself or contact the regional coordinator to go to the site (Exh. C-85; pp. 

284-285). The four companies implemented the same safety and health programs. Newly hired 

employees for all of the companies were trained at the Riverfront Center, home of the common 

corporate worksite. Safety training was provided at the same time to employees of different 

Cranesville companies (Exh. C-85, pp. 231-233, 269-271). 

Analysis 

Based upon the three factors considered under the Commission’s single employer test 

(common worksite; interrelation and integration of operations; and common president, 

management, supervisor, or ownership), the court determines Cranesville Block Co. Inc., and 

Glens Falls Ready Mix, Inc., are a single employer. The record leaves no doubt that their 

operations are extensively intertwined, that management and supervisory personnel overlap, and 

that six members of the Tesiero family hold nineteen officers’ positions in four companies. 

The weakest factor is the element of a common worksite. Block and Glens Falls do not 

share a geographic location where they perform ready mix operation. They do, however, share a 

corporate office space, from which their safety policies, payroll, benefits, administrative services, 

and budget emanate. 

Having considered the three factors in totality, the court concludes that Block and Glens 

Falls are a single employer. Block is, therefore, subject to a repeat violation of §§

1910.1200(f)(f)(i) and (ii). As noted, a final order existed against Glens Falls for substantially 

the same violation at the time of the instant inspection (Exh. C-67). Items 2a and 2b of the 

Citation are properly classified as repeat. 

Penalty Determination 

The Commission is the final arbiter of penalties in all contested cases. “In assessing 

penalties, § 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the Commission to give due 

 

15 The safety director testified she was actually the safety director for approximately thirty Cranesville companies 

overall (Tr. 1197). 
26

consideration to the gravity of the violation and the employer’s size, history of violations, and 

good faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). Gravity 

is a principal factor in a penalty determination and is based on the number of employees 

exposed, duration of exposure, likelihood of injury, and precautions taken against injury.” 

Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). 

The Cranesville companies employed approximately 300 employees at the time of the 

OSHA inspection (Tr. 1326, 1332). As established by the repeat violation, OSHA had 

previously cited Block for violating § 1910.1200(f), among other violations. There is no 

evidence that Block demonstrated anything less than good faith with respect to the Kingston 

inspection. 

The Secretary asserts Block’s violation of §§ 1910.1200(f)(i) and (ii) is of “medium 

severity” and “lesser probability.” The rationale listed for this assessment is, “Hazard of 

chemical burns to skin and eye, hazard existed intermittently” (Secretary’s brief, p. 158). The 

Secretary proposed a grouped penalty of $10,000.00 for Items 2a and 2b, based on the amount 

she would have proposed if the violation were serious and not repeat, multiplied by five (Tr. 

1332). 

 The record establishes Block had at least nine employees who had access to the unlabeled 

bucket containing the TKO solution. The gravity of the violation is mitigated by the PPE 

training the employees received. The violation was apparently of short duration, since the 

OSHA representatives had observed the employee using the unlabeled bucket of TKO solution 

during their walkaround. The bucket was observed sitting unused during the same inspection. 

 Having considered the relevant factors, the court determines that a penalty of $5,000.00 is 

appropriate. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 
27

ORDER 

Based upon the foregoing decision, it is hereby ORDERED that: 

1. All items in Citation Nos. 1, 2, and 3, issued under Docket No. 09-2011, are vacated 

and no penalties are assessed; 

2. All items in Citation Nos. 1, 2, and 3, issued under Docket No. 09-2055, are vacated 

and no penalties are assessed; 

3. Item 1 of Citation No. 1 (alleging a repeat violation of § 1910.132(a)), issued under 

Docket No. 10-0447, is vacated and no penalty is assessed; and 

4. Items 2a and 2b of Citation No. 1 (alleging repeat violations of §§ 1910.1200(f)(i) 

and (ii)), issued under Docket No. 10-0447, are affirmed and a grouped penalty of 

$5,000.00 is assessed. 

SO ORDERED. 

 

 /s/ 

Date: March 12, 2013 KEN S. WELSCH 

 Atlanta Judge