**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

###### OFFICEOF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIAAVENUE N. W., SUITE 520N

WASHINGTON, D.C. 20004-1710

Telephone No.: 202-434-9933

Telecopier No.: 202-434-9949

##  

| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH

 ADMINISTRATION  (MSHA)

                        Petitioner

 

                        v.

 
THE CREATOR’S STONE,
                        Respondent                                                                         |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. CENT 2020-0067

A.C.  No. 03-02067-504511

 

 

 

 

Mine:  The Creator’s Stone

    |
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**DECISION AND ORDER**

** **

 

Appearances:              FelixMarquez, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas75202 for Petitioner

 

                                    Mr.Charles Mosely, pro se, President and CEO, The Creator’s Stone, Subiaco,Arkansas, 72865

 

Before:                        JudgeWilliam B. Moran

 

 

            Thismatter is before the Court upon a petition for the assessment of civilpenalties under section 105(d) of the Federal Mine Safety and Health Act of1977, 30 U.S.C. §815(d), (“Mine Act” or “Act.”) Two section 104(a) citations wereissued to The Creator’s Stone, (“Creator’s Stone” or Respondent), one forfailure to notify MSHA of the operation’s opening and the other for failure toprovide a record of miner training, but the larger issue and chief contention inthis matter is the Respondent’s position that his location is not a mine andthat the activity carried out there does not constitute mining. For the reasonswhich follow, the Court finds that while the Respondent’s business and the activitycarried out at its business location is on the very low end of the spectrum ofjurisdiction under the Mine Act, The Creator’s Stone is a mine and the activitycarried out there constitutes mining pursuant to 30 U.S.C.§802 (h)(1) and §803of the Mine Act and case law determinations issued by the Federal Mine Safetyand Health Review Commission (“Commission”) and Federal Court of Appeals. 

 

 

**Findingsof Fact regarding Mine Act jurisdiction of The Creator’s Stone**

** **

As noted above, two citations spawned thislitigation, but the challenge here is fundamentally about The Creator’s Stone’sposition that its operation is not a mine. The Findings of Fact relating to thejurisdictional issue are first presented, while the Findings relating to thecitations which were issued will follow.

 

A virtual hearing was held on February 2, 2021, with thetestimony from that hearing reflected in the following findings of fact. TheRespondent contends that his operation is not a mine and accordingly there wasno duty to notify MSHA of the business and, from that premise, that the two employeescited in one of the citations are not miners. Tr. 16. Preliminarily, the Courtnoted, based on one of the Respondent’s exhibits, which included five photos, thatthe description with those photos stated: “The first five photos of *thequarry* that the DOL is calling a mine, The Creator's Stone quarry.” Tr. 17(emphasis added). Given those descriptive words associated with the photos, theCourt inquired whether the Respondent agreed that his operation is a quarry. TheRespondent answered, “I am calling [it] rock, and I would say quarry bestdepicts it, a quarry or a borrow pit.” *Id.* Amplifying his response, Mr.Mosley added, “[w]hat we do there is very comparable to a borrow pit, yes. ...butit's not a mine, and it's not a quarry in the sense that I'm pulling rock outand crushing it and sizing it either.” Tr. 18. Mr. Mosley’s position, in part,was expressed as his “underlying point of all of that is, if there are no risksand there's no imminent danger in all of the definitions that are in the CFRsand acts that don’t apply, how can I be a mine.” Tr. 38.

 

                        DaveE. Smith, an inspector for the Mine Safety and Health Administration testified,as the government’s first witness. Tr. 47. He has been an MSHA Inspector since2008. His mining background includes working as an assistant quarry manager ata dimensional stone quarry, which he described as “much like Mr. Mosley’s [quarry].”Tr. 48-49.

 

Regarding the inspection for this matter,which took place on May 14, 2019, the inspector went to the Respondent’s sitein order to determine if it was a mine. Tr. 50. The site is located in betweenMidway and Subiaco, in Logan County, Arkansas. Tr. 117. When making suchvisits, Smith will “look for evidence of heavy equipment having been traveledin and out.[1]That would usually mean excessive dirt and mud on the turnout for the driveways,ruts, things of that nature.” Tr. 52. 

 

When the inspector arrived at thepotential mine site, there was no signage, and nothing identifying it as TheCreator’s Stone. He did see “large ruts, roads that had been traveled by heavyequipment, such as semis and such.” Tr. 52. He then traveled the road “toanother gate at the edge of this property, which opened up into what [he] saw,which [he described as] a quarry.” *Id.* He stated observing “dimensionalstone stacked [and as he] entered to the right there was a miner stacking stoneonto pallets.” *Id*. Elaborating on the term “dimensional stone,” theinspector explained 

 

it can vary in sizes, ... [and] [i]t can be 1 to 2 inches, 2to 4 inches, and they're stacked accordingly as they're classified. And they’llstack this on a pallet, a typical pallet, and stack it upwards of 3 to 4 feethigh. And it'll weigh about 1 to 2 tons. 

 

Tr.55.  

 

Explaining the removal process generally,the inspector stated, “[t]his stone is removed from the earth in laminatedlayers.” Tr. 55. After first clearing overburden, which consists of dirt, sand,mud, and things that are less desirable, such an operation will pull the stone upin laminated layers and break them up. *Id*. Then the stone will beclassified “in different ways in  1 to 2 inches, 2 to 4 inches, depending on thesize, depending how they're selling the stone.” *Id*. 

 

The inspector stated that he observed thesame process at The Creator’s Stone. Tr. 56. Elaborating, Smith stated he 

 

could see evidence of heavy equipment usage, land beingcleared, and ... [he] ... could see that there was a miner in a skid steer, which isa small piece, specialized piece of equipment with a bucket that’s used to loadmaterial or to remove material ... [and he saw a person] actually pulling thisstone from there. 

 

Tr.56-57. That person, seeing Smith, stopped his work to determine who he was. *Id.*      The inspector confirmed to the Court that he observed the material being puton pallets and that the material appeared to be coming from the site. Tr. 59. Smithsaw the material being removed from the ground, observing that it had beenpulled from the ground. In terms of the material being put on pallets, it wasbroken into triangular or trapezoidal shapes one to two inches in thickness. Tr.62. He informed that such material typically is used for patio or house siding.*Id*. 

 

He also saw whereland had been cleared and a bulldozer and a skid steer, which was beingoperated, pulling stone up from the ground. Tr. 50, 56-57. Adding moredetail to his observations upon first arriving at the site, he saw a personstacking stone onto pallets. Tr. 54. That person “was stacking stone ontopallets. There was in excess of 20 or so pallets that had been stacked. Andthese pallets are going to weigh between 1 to 2 tons.” Tr. 54.

 

The inspector added that upon entering theproperty through a gate, to the right, off the road, was a palletizer andapproximately 50 yards further down the road he saw the skid steer, and learnedit was being operated by Brandon Boss. Boss was the first person he spoke with.Tr. 64.  The inspector stated that it appeared he was “removing stone from theground, breaking it into smaller sizes and preparing it to be palletized.” Tr.65. He was performing this with the skid steer bucket. Tr. 65, 68. Theinspector elaborated about the function of a skid steer, informing it is “machinerythat [ ] does not have a steering wheel, ... [and is] controlled by levers and byfoot pedals. ... it has [a] single seat.” Tr. 65. It has a bucket on the frontand it is hydraulically driven, and it is used much like a front-end loader. Thebucket is used “to pull material up or to move material or to clear material.” Tr.66.   

 

In terms of the size of the property, theinspector stated it was not more than 2 acres, at least as to the land that wasexcavated. Tr. 68. It is a small operation. Tr. 113. The inspector stated therewas no mine office at the site. Tr. 81-82. The individuals the inspector met onthat day informed him that they were employees of The Creator’s Stone. Tr. 83.

 

Regarding other equipment at the property,the inspector saw a bulldozer “directly in front as [he] entered the property.”Tr. 69. Compared to the skid steer he saw, the bulldozer was five to six timeslarger. Tr. 70. While the dozer was not running at that time, he saw tracksreflecting it had been moved and that it appeared to be ready for use. Tr. 71.

 

After identifying the purpose of hispresence at the property, the inspector asked about training and whether thesite had registered with MSHA. Tr. 71-72. As for the training issue, theinspector informed that some training is transferable from another operationbut there is a separate requirement for “site-specific” training. Tr. 73. 

 

The inspector also saw a second individualduring his inspection; that person was palletizing stone. Tr. 74. That process,palletizing, was described as “several different pieces of stone piled up near [theindividual who] was using a chisel to clean off the flat surface of [thepieces] ... to break off rougher ends, sizing it a little bit further” bybreaking it down so that the pieces could fit on the pallet. Tr.74.  Thus, theindividual “was using his hammer and chisel to clean off the edges, to cleanoff the flat surface, and then to actually fit and palletize -- fit the stoneto the pallet. So stacking the, stacking it in layers on the pallet.” *Id.*The pallets were about 3 1⁄2 feet in height. Tr.75. 

 

On the subject of training, the inspectordetermined that one individual, Mr. Cabrera, the one doing the palletizing, hadreceived some training, but not site specific nor task training.  Tr. 78-79. However,the skid steer operator, Mr. Boss, did not have training. Later, the inspectordetermined that another person, Mr. Noyce,[2]the bulldozer operator, did not have training. Tr. 76-77. Only Boss and Noycewere listed in the inspector’s citations. Tr. 78.

 

In the inspector’s process of deciding toissue a citation for an alleged violation of 30 C.F.R. § 56.1000, a standard requiringmines to inform MSHA of openings and closings, the inspector believed he hadobserved enough to conclude that the site was a mine. Tr. 84. In hisexperience, the inspector stated that he had viewed 20 to 30 mines of this sizeand nature. *Id.*  His determination that The Creator’s Stone is a minewas based upon concluding that it was engaged in removingminerals from the earth, which minerals entered commerce. Tr. 85. This wasbased on seeing active removal of minerals, evidence that minerals had beenremoved in the past and upon learning that the site was selling stone, thelatter determination of sales being derived from the inspector’s speaking withMr. Mosely. Tr. 85. 

 

The inspector stated that he did considerwhether The Creator’s Stone could be deemed outside of the Mine Act’sjurisdiction by being classified as a borrow pit. Tr. 88. He defined a borrowpit as “generally a one-time use or infrequently used pit where they remove thematerial and place it in a nearby location in virtually the same state. Sobasically dig a hole, fill a hole.” Tr. 88. Elaborating, he stated, a borrowpit 

 

would generally be close to [the] site that they weremoving the material to. ... [there] won't be sizing going on, and ... to the extentthere is sizing going on, it may be removing large rocks from the dirt to befilled. A lot of times they're used on construction sites and such to buildpads and things like that. ... [t]he material is not used for its intrinsicvalue. It's just used for its fill. 

 

Tr.89-90. As an example, the inspector continued,

 

[a] borrow pit would be ... on a construction site if theyhad a shale pit, and they would be removing the shale and taking out the largerrocks, you know, too large to make a pad out of. And they would remove theshale from this borrow pit and then either build a pad or, like I said, theycould also potentially fill holes with. ... [a]nd that’s generally what it is. They'rejust using the material for fill. It's removed and replaced in basically the samestate it's removed.

 

Tr.90.

 

The inspector determined that TheCreator’s Stone was a mine, not a borrow pit, 

 

[b]ecause the stone was being sized on at least threedifferent occasions, the initial removal, the breaking up into smaller pieces,and then onto the pallets. It was being sized in that way. It was being removedbecause of its intrinsic value because it was to be sold as stone patio.

 

Tr.90-91. Mr. Mosley informed the inspector that the stone was being sold. Tr. 95.

 

The inspector, having determined that theRespondent’s site was a mine, cited it for not complying with standard 56.1000 becausemining operations are to notify MSHA of their intent to engage in that activity*prior* to mining. Tr. 91. No such notification was made to MSHA. *Id.* Theinspector did later learn from Mr. Mosley that a newspaper, the Paris Express,in Logan County, contained a notification about the business but that is not asubstitute for notifying MSHA. Tr. 92. Instead, a mine is to notify MSHA of “theirintent to mine, their company name, their location, their owner's name, contactinformation, and address is [the inspector] believe[d] the majority of what is [required]on that standard.” Tr. 92. Although the Paris Express contained much of thatinformation, the inspector stated that does not displace the notificationrequirements which are to be made directly to MSHA. Tr. 96-97. In fact, drivinghome the importance of informing MSHA directly, the inspector informed that helives in Paris but did not see that notice in the local paper. Tr. 93. As apractical matter, the inspector noted that MSHA can’t be in the business ofscouring all the publications in a given state in search of such notices.[3]*Id.*

* *

While the inspector could not recall thesource of the information, his citation asserted that The Creator’s Stone hadbeen in operation for a year or so, and therefore this was not a new start up. Tr.96. There is no dispute in the record on this point. 

 

Addressing the inspector’s evaluation ofthe citation for failing to notify MSHA of the operation’s start-up, theinspector noted his determinations of the negligence and gravity associatedwith the alleged violation. Tr. 98, 100. Regarding those evaluations, theinspector characterized the citation as a “paperwork violation.” Tr. 101. Theinspector then described his evaluation of the training violation. Tr. 103. Thiswas more than a paperwork violation. Underpinning his evaluation regarding thelack of training, the inspector noted that the Mine Act itself states that “anuntrained miner is a hazard to themselves and to others.” Tr. 104.  In theinspector’s view, the new miner training is the most important one: 

 

That’s going to be the 24 hours of training that they'rerequired to receive to indoctrinate them into mining, you know. These are thehazards you can expect. These are, these are the hazards you need to avoid, orthese are the things you need to be made aware of. It's the most important trainingthat they receive, should have received.

 

Tr.105.

 

He marked the gravity as “fatal” because, onceagain, he stated: 

 

this is the most important training they receive. ... [t]here'soverturn hazards. There's special equipment. They're in a confined area, andthat was my reasoning for fatal. Whether they could be caught in a piece ofequipment, struck by a piece of equipment, run over by a piece of equipment,overturn a piece of equipment, and they hadn't received the training that wouldpertain to specifically all those instances. ...[and by equipment the inspectorwas referring to] the [ ] skid steer and the bulldozer that was on-site. 

 

Tr.106. In deciding to mark the citation as “significant and substantial,” the inspectoragain referred to the: 

 

new miner training [as] the most important training thatis provided to these gentlemen. Them not having that training makes themunaware of any hazards that are on-site, you know, other than what they coulddetermine personally.  But there's very specific things that [they] ... have todeal with the equipment that, you know, again, it was evaluated as reasonablylikely and -- loss of work days, loss or restricted work days. 

 

Tr.107. 

 

Applying standard 46.5(a), the inspectoridentified the discrete hazard as: 

 

[m]iners operating equipment without the proper tasktraining. There was a raised area in which the skid steer could have overturnedon. There were no berms in place. There was no signage as to hazards that wereon-site ... they were in a confined area ... it's a small area to be operating alarge piece of equipment in. So and there's training that’s supposed to begiven and received that’s going to have them do their checks to ensure that allthe safety features on that equipment are being checked and that they areworking. And there was no evidence of that having been done.

 

Tr.108-109. He added that the training was especially important as it is aconfined area to be operating heavy equipment. *Id.*Underscoring his viewof the hazards associated at the site, as the individuals did not have therequired training, the inspector issued a section 104(g)(1) order and byinvoking that provision, those individuals could not continue to work at thesite until they had completed the required training. Tr. 111.

 

Inspector Smith was cross-examined by Mr.Mosley, who began with questions about   the authority of the inspector and thebasis for his determination that The Creator’s Stone is a mine. Tr. 124-125. TheCourt would note that the inspector identified himself as an authorizedrepresentative of the Secretary and that the question of whether the site is amine is a legal question for the Court to decide based upon the factual record,as reflected in the Court’s findings of fact and the application of those factsto the definition of a mine under the Mine Act, as that term has been set forthin that Act as amplified and explained in decisions of the Federal Mine Safetyand Health Review Commission and the Federal Courts. 

 

Mr. Mosley challenged the basis for theinspector’s determination that “sizing” was occurring, contending that his operationis “not creating the size. [It is] not making anything uniform out of it. We'rejust looking at it and laying it on a pallet.” Tr. 126. The inspector respondedthat:

 

[s]izing is a process of separating particles of mixedsizes into groups and particles of the same size or into groups in whichparticles range between maximum and minimum sizes, and that is sizing. And as forthe stone being in the ground, the stone is in the ground as one continuoussheet.

 

Tr.127. The inspector affirmed that, in his view, using equipment to pull up rockconstitutes sizing. Tr. 129. 

 

He also affirmed that placing the rock ona pallet is also considered sizing, stating, 

 

Yes. As it states in the -- policy manual, into groups inwhich particles range between maximum and minimum sizes, and generally it'sput, stacked on pallets. I'm not certain how you do yours, but it's 1 to 2inches or 2 to 4 inches, depending on the stone that you're categorizing andselling.

 

*Id.*

 

In terms of the hazards he identified, theinspector repeated his earlier testimony that an untrained miner is a hazard tohimself. *Id.*To that, he added his view that there were turnover hazardsat the site, 

 

which is going to be the elevated area of the land, ... andthe excavated portion of the land. Berming if you are traveling on or near youroverburden.  The equipment itself, you have restricted views to the rear ... [w]ithyour skid[-]steer you have a restricted -- semi-restricted view to the rear. Withyour bulldozer you have safety checks that weren't being performed on all thesepieces of equipment, which could relate to having [overturn] hazards. 

 

Tr.129-130.

 

            Thoughthe Court does not consider it at all critical, in response to Mr. Mosley’squestion asking what the inspector believes constitutes “dimensional stone,”[4]the inspector answered:  “As for the actual definition, I don’t know. The layterm is, you know, sized or cut, I believe is going to be a dimensional stone. Stonethat -- dimensional stone is generally stone that you could handle by hand.”[5]Tr. 131. 

 

            Turningto Respondent’s Exhibit 3, at page 1, Mr. Mosley asked about the site’shighwall, with the inspector responding that it was about a foot to a foot anda half high, possibly two feet. Tr. 133-134.

 

            Askedagain what constitutes “mining,” the inspector answered that 

 

it's going to be removing minerals from the earth andthose minerals entering commerce. And that’s what mining activity is going togo into the removal of that material, the selling of that material, the sizingof that material is how it's going to -- how you would -- some of the ways youwould define mining activity.[6]

 

Tr.138. Thus, the inspector expressed that simply by removing the material andloading it directly onto a truck, such actions would constitute mining.[7]*Id.*As also explained, *infra*, the Court finds that, as long assuch activity was more than a mere borrow pit, the inspector is correct. 

 

The Court explained to the Respondent duringthe hearing that the Mine Act itself describes a mine “very simply as an areaof land f[ro]m which minerals are extracted in non-liquid form. And then itincludes a whole lot more in 30 U.S. Code ... section 802, definitions under G,which describes ... a ... coal or other mine.” Tr. 139-140.

 

Because of Mr. Mosely’s particularexpressed frustration with “bureaucrats,” the Court took special pains to notethat this definition of a mine “was created by Congress, not by 

bureaucrats.”Tr. 140. 

 

The Court then went on to explain that itsresponsibility was “to determine whether what's involved at [the Creator’sStone] site is an area of land from which minerals were extracted in non-liquidform,” but then adding that “borrow pits are a recognized exception.” Tr. 140. TheCourt followed up that comment, noting that under subsection (h)(1) of thatprovision, 

 

it's all about resulting from the work of *extractingminerals from their natural deposits* ...[with the Court then adding that] [i]ttalks about private ways and roads are pertinent to such area, lands,excavations, shafts -- tunnels, working structures, facilities, *equipment,machines, tools*, or other property on the surface, as in your case, orunderground as it may be marginally underground, *but it's all aboutresulting from the work of extracting minerals from their natural deposits*.

 

Tr.140-141 (emphasis added). 

 

 

            WhileMr. Mosely took in the Court’s observations, he expressed his view that hedidn’t “believe that the Mining Act or the legislature's intent was to applymine status to what's going on at The Creator's Stone.” Tr. 142. Although theCourt respectfully accepts that to be Mr. Mosley’s view, the definitions fromthe Mine Act, as cited above, and the case law from the Commission and theFederal Courts of Appeal, do not agree with his view, unless a site fits withinthe very narrow definition of a borrow pit. 

 

            TheSecretary then called Dwight Shields as its next witness. Mr. Shields is thefield office supervisor for Mine Safety and Health Administration’s Little Rock,Arkansas field office. Tr. 148. His testimony essentially echoed that of InspectorSmith. He considered The Creator’s Stone to be a mine because:

 

[t]hey're extracting minerals or rock out of the ground,which rock is comprised of many minerals. We don’t know what all is in thosethings without analyzing them. But you're extracting that out of the ground,you're sizing those, and then you're selling them. So you're affectingcommerce. That’s mostly the three criteria we use. 

 

Tr.151. Shields acknowledged that borrow pits are under OSHA’s jurisdiction. Heexplained that a borrow pit is “material [which] is extracted just in its --whatever state it's in, it's dug out and used basically for fill more so thanit's intrinsic value I believe is what the program policy says.” Tr.152. 

 

With that in mind, he distinguished theactivity at the Respondent’s site because it’s “taking the stone out. It'sprobably laminated, and typically the dimensional stone places are.  So they'rebreaking that stuff out. They’ll break it down to a size they can put on a pallet.Then they’ll sell that for folks for construction.” *Id.*

 

Adding to Inspector Smith’s explanation ofdimensional stone, and essentially agreeing with it, Shields stated:

 

[i]t's usually laminated or in layers, and it may beanywhere -- thicknesses from -- I guess it could be a foot thick, but typicallywhen they're using that in the building industry -- and in other word they’llcall it flagstone. That’s the thinner stuff. It may be 1 inch thick. And you'llsee that on patios or floors or hearths around fireplaces or build upfireplaces with, that type.

 

Tr.153. By that description, Shields agreed that the Respondent’s operationinvolves dimensional stone. *Id.*

 

            Uponcross-examination, Mr. Mosley asked Inspector Shields to distinguish theactivity at The Creator’s Stone from a borrow pit.[8]Tr. 158. Shields responded that the Respondent’s site was “sizing material[and] selling that material for its value as a -- not just a fill, but as abuilding stone ... for ... fireplaces, a rock floor, whatever, depending on thethickness of the material that they would need.” Tr. 158. As to whether the actionof “sizing” material Shields could not say if the level of hazards for that wouldbe different from that of a borrow pit.[9]Tr. 159.

 

            InspectorShields also maintained that there is no commerce, nor sizing, associated witha borrow pit.[10]Tr. 161. 

 

            Ina very real sense, Mr. Mosley expressed his overall objection to Mine Actjurisdiction on the grounds that: 

 

common sense wouldsay regardless of what precedent there is that I should not fall under the MiningAct because that’s [not] why the Mining Act was even created. You know, thereis nothing in the Mining Act or CFRs that would suggest that they ever intendedfor a simple operation like [The Creator’s Stone to be covered under the MineAct]. 

 

Tr. 168-169.

 

As examples of the inapplicability of theMine Act to his site, he continued, 

 

[as] I show in one of my pictures a little hammer andchisel. Yeah, someone can get something in his eye, but I can drive down thestreet and see porches that don’t have any handrails in them that are far morehazardous than a 1-foot wall in the quarry. And just the application of this tothis operation is to me obviously moronic. It's just impediment, overreach,burdensome regulation. 

 

Tr.169.  

 

The Court does not treat Mr. Mosley’sconcerns and frustrations dismissively. However, as it suggested to him duringthe hearing, *the Court’s responsibility is to determine whether, presently,the activity at the Respondent’s site constitutes mining under the Mine Act. Whetherthat activity should be relieved from coverage under the Mine Act is alegislative issue, and as such it is not a matter for this Court to address*.

 

            TheSecretary, having rested, Mr. Mosley called Mr. Jerry Barnes as its witness. Barneswas asked if he viewed the activity at the Respondent’s site to be mining. Tr.176. Barnes expressed that 

 

segregating, separating the rock, you know, getting it toa uniformity where you can sell it is different than what [The Creator’s Stone]is doing. [The Respondent] is taking the rock out of the ground like it was putthere, and they are stacking it on pallets, but they're not making itdimensional. They're not making it an inch thick. They're not making it twoinches thick. They may be separating it, yes, but they're not making itdimensional ... they are using a raw product out of the ground, natural resource.

 

Tr.177. 

 

Barnes also informed as to the use of therock derived from the site, stating, “[i]t's used in, you know, in variousproducts. You know, it's from flower beds to building materials to mausoleums. Youknow, it just -- there's no way to say just exactly, you know, what the limitsare for the natural stone.”  Tr. 177-178. He elaborated that “[i]t's [used] forbuilding projects, whether it be a home project or a federal project, you know,it's used for building.” Tr. 178. Continuing, he stated, Respondent “has somebuilding home supply places, you know, a small individual place[s] [that buythe pallets] or by the piece, ... a lot of times they just ship it on palletsbecause that is the most efficient way to ship it.” Tr. 179. 

 

When the Court noted, looking atRespondent’s Exhibit 3 at page 5, a photo of an industrial type hammer andchisel resting on rock, and queried if together those tools would be used tosize the material that had been removed from the ground, Barnes did not agreethat it would be called sizing. Instead, he described their use for “cleaningpurposes. You know, when it comes from the ground it's laminated, you know. Andyou have to take part of it off. If you'll see in that picture, there's shaleon top of these rocks. That has to be removed.” Tr. 181. 

 

The Court would comment that, apart fromthe nomenclature preferred, sizing or cleaning, Barnes still described processingthe rocks, and therefore not merely removing material and depositing it in anew location without altering its mined state.[11]As Barnes described the activity, “[w]hat you're doing is just picking it upoff the ground, making it usable, and putting it on a pallet.” Tr. 184. Onecould accurately call this activity to be mining, though as this Court hasnoted, mining on the low end of the spectrum.  

 

            Thoughintended to show the absence of any “inherent risk” at the site,[12]Barnes’ description also shows that the activity is more than a borrow pit,with his stating “[y]ou have the operator on the skid steer in one area, andthen he is transporting the rock up to another area where the other guy'sworking. ... He digs it up out of the ground and carries it up on top of the hill.”Tr. 186-187.  Thus, compared to the activity at a large quarry, Barnes describedThe Creator’s Stone as “just a completely different operation.” Tr. 192. 

 

The Court would observe that it is fair tostate that the Respondent’s operation is “completely different,” but only inthe sense of scale, as minerals are being removed from the ground, and though withminimal action to it, then placed on a vehicle for transportation to a sales’site. This activity is not consistent with that of a borrow pit. 

 

            Mr.Barnes has had extensive experience working in mines, most of it with rockquarries. Tr. 192. In those years most of his work was for large quarries, thoughhe had a few instances involving:

 

one to two acre spots in the woods where we'd go out andfind something usable, and we would, you know, capture it. And in the earlydays we'd just load that on the truck by hand. We didn’t use pallets. And thenwe'd haul it to our destination and unload it there.

 

Tr.193-194. In his experience, there were three such small operations, like theRespondent’s. Tr. 194. He did not agree that those small operations were mines.Tr.194-195.  He acknowledged that two or three of them were inspected in thepast, but “since they were not sizing the material, the inspectors have notbeen back.”[13]Tr. 195.

 

It was Barnes’ opinion is that theRespondent’s operation is a borrow pit. Tr. 200. However, Barnes did concedethat, in response to the question whether “**there were activities that weregoing on here at The Creator's Stone where they're extracting stones and [thosestones] have value, and they're being sold for a commercial purpose**,” hisanswer was “**Yes. That’s the only reason for working isn't it?**” Tr. 202-203.Thus, by Barnes’ own description of the activity at the subject site, heestablished that the operations at The Creator’s Stone is a mine.

 

**DISCUSSION**

** **

**TheSecretary’s Post-Hearing Brief**[14]****

** **

The Secretary notes that, per 30 U.S.C. §§802(h)(1), “coalor *other mine*” means:

 

(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, or 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. 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. 

 

Sec.Br. at 3 (emphasis added).

 

Given that definition from the Mine Act,the Secretary states:

 

[t]hese activities fall within the meaning of a minecovered by the Mine Act and, accordingly, The Creator’s Stone, a dimensionalstone mining operation, is a mine subject to MSHA’s jurisdiction. Further, Bossand Noyce, who work at this mine, are considered miners defined by § 802(g) as “anyindividual working in a coal *or other mine*.” As such, MSHA has properlyasserted jurisdiction over Respondent. 

 

*Id.*at4.

 

Observing that the Respondent has assertedthat its operation is a borrow pit, the Secretary, in response to thiscontention, points to the “MSHA and OSHA Memorandum Interagency Agreement asthe source of authority for jurisdiction disputes relating to borrow  pitoperations. *Jermyn Supply**Co*., 39FMSHRC 1472, 1483-84, (July 31, 2017).” *Id.*at 4.     The *JermynSupply*decision, the Secretary adds, also holds that in decisions as towhether an operation is a borrow pit, “deference is given to the Secretary’sinterpretation as long as the interpretation is within reason. *Jermyn Supply*at 1486.” *Id.*

 

            TheSecretary also points to MSHA’s Program Policy Manual’s interpretation on Mine Actcoverage, noting from that Manual that “MSHA has jurisdiction over operationswhose purpose is to extract or to produce a mineral,” but it acknowledges thatit does not have jurisdiction “where a mineral is extracted incidental to theprimary purpose of the activity.”  Sec. Br. at 5 (citing MSHA Program PolicyManual, Volume I, Section 4.)[15]

 

            Caselaw in support of the Secretary’s position that The Creator’s Stone is withinthe jurisdiction of the Mine Act was also cited in its brief. The cases cited –*KerrEnterprises,*26 FMSHRC 953, 954-58 (Dec. 21, 2004); *New York State Department of Transportation*, 2 FMSHRC 1749,1758-61 (July 3, 1980) – do indeed establish that a “borrow pit” is a narrowlydefined concept. To qualify as such, terms such as “fill material,” that is tosay, material extracted for its bulk as opposed to its intrinsic qualities, withthat material used relatively near the extraction site, with the lack of anysizing, and the process occurring on a one-time basis or intermittently as needoccurs, come into play. In contrast, things like continuously extractingmaterials for sale to customers located nearby do not fit within the scope ofborrow pits. 

 

            Toits credit, and of value in better understanding the distinction betweenactivity which constitutes mining in comparison to mere borrow pit activity, theSecretary notes a decision where the activity was determined to *notconstitute*mining. *David Duquette Excavating*, 37 FMSHRC 744, 745-52(April 8, 2015) is one such case outside of Mine Act jurisdiction “because theextraction occurred intermittently (approximately three times in two years),the extracted material was used as fill in the form it was extracted, the fillmaterial was used more for its bulk to fill low places in a yard than for itsintrinsic qualities, and the only milling involved was with a scalping screento remove large rocks, wood and trash.”  Sec. Br. at 8 (citing *DavidDuquette Excavating*, 37 FMSHRC at 750-52).[16]

 

            However,the Secretary asserts that the activities being carried out by The Creator’sStone is not like the case just referenced. A critical distinction, it cannotbe denied that the “Respondent is in business of selling dimensional stones fortheir intrinsic value. ... [t]he activities are ongoing, rather than on aone-time or an intermittent basis [and] .... the activities have been performedcontinuously since operations started on May 23, 2018.” *Id**.*at 9.        

 

In sum, the Secretary contends that thepurpose of the Respondent’s operation is preparing the dimensional stones forcommercial sales, a process which requires extraction of the stones with heavyequipment, such as a skid steers and bulldozers, and also involves “cleaning,sizing, and milling the unearthed stones to create various sizes, as a stone’ssize impacts its market value.” *Id.*

 

**TheRespondent’s Post-Hearing Brief and Response Brief~~~~**

** **

            Respondentbegins its post-hearing brief with expressions of frustrations over the mannerin which MSHA handled this matter. In voicing these feelings, Respondentcontends that the government has infringed upon the rights of its citizenry,citing the Declaration of Independence. Respondent believes that, in enforcingits authority, the government has acted bureaucratically, “assum[ing] authorityrather than assist[ing] the public.” R’s Br. at 1. 

 

            Turningto its view of the facts, Respondent sees its activity at The Creator’s Stoneas “placing layered material on a pallet. The material is not sized orprocessed. The material comes out of the ground just as The Creator placed itthere. The desirable material is placed on a truck by a skid steer.” *Id.*at 2. Respondent contends that the chief argument advanced by the government isthe claim that the operation performed “sizing.” But, Respondent counters thatno sizing is actually involved. It takes issue with the inspectors’ claim thatmaterial is derived in one continuous sheet, asserting instead that the materialhas “natural seams where it comes apart,” giving it a character that makes itdesirable and thus smaller pieces occur by virtue of handling it. *Id.*

* *

**The Respondentthen makes an argument of a different nature, namely that not only  does itsoperation not perform what is recognized as sizing, but also that its activityis not hazardous. Respondent asserts that it merely “look[s] at a rock orlay[s] a tape measure on a rock,” and, in The Creator’s Stone’s understandingor interpretation of such activity, that does not “constitute sizing or mining.”*Id.* at 3. As for the equipment it uses at the site, none of it is highlyspecialized, as it all can be rented at an equipment rental shop. *Id.*Further,one renting such equipment is not required to receive training before rentingit. *Id.*On the subject of training, Respondent adds its own take that“[t]here is nothing but On-The-Job-Training that makes [one] qualified,certified, or capable of doing a good job on a piece of equipment.” *Id.*

* *

**Respondent hasother criticisms of MSHA’s claim of jurisdiction over his operation, contendingthat there are no “imminent dangers” nor “occupational diseases” present. *Id.*at 4.**As the Respondent sees it, given the Mine Act’s statement, persection 2(d) of that Act, that “unsafe and unhealthy conditions and practicesin the Nations coal or other mines is a serious impediment to future growth,” itshould be considered that “it is over zealous regulators that are creatingconditions that impede future growth.” *Id.* at 4. Underlying all of theseobjections to these contested citations is the Respondent’s sincere belief thathis place of business is a “non-mining situation.” *Id.*

 

The Respondent then turns to a verydifferent line of defense, namely that The Creator’s Stone no longer engages inmilling or sizing and no longer stacks material on pallets. Instead, it intendsto make operational changes under which it 

 

will put the material on a dump truck, take to an areathat is not considered confined and tailgate the material onto the ground. Thiswill allow natural occurrences, rain, sun, heat and cold to clean and separatethe material. At that point the only sizing that will need to be done is tomeasure and put on the truck. 

 

*Id*. at 5. 

 

Turning to the two citations, and firstaddressing the jurisdiction issue, Respondent states he had no idea that MSHAwould apply to his operation. *Id.* at 6. Therefore, he claims his failureto notify was not negligent nor willful. He asserts that none of the stateagencies he contacted ever mentioned the Mine Act. *Id.*at 6. AsRespondent’s friend, Jerry Barnes, with many years of dealing with MSHA did notthink that The Creator’s Stone was a mine, he claims it is unreasonable toexpect the Respondent’s start-up company to know this. *Id.*

 

As for the lack of training citation,Respondent asserts that Jerry Barnes stated that Tom Noyce “was not an employeeof the pit.” *Id**.*In support of thiscontention,**Respondent refers to “Subchapter H, 46.2 (2) [which]specifically states that delivery people, commercial truck drivers, maintenanceworkers and service workers who are not frequent or there for extended periodsare not miners.” *Id.*In terms of the penalty ascribed to this,Respondent contends that Barnes testified that there is no risk from areasonable person standard and that this makes sense because, returning to itsjurisdictional argument, the Respondent again argues that The Creator’s Stoneis not a mine. *Id.*at 7. Further, Respondent takes special note that hisoperation is not a mine because “[a]ll of the elements of an industrialoperation with high-walls, moving parts, crushers, processors, conveyors, largeequipment, detailed operations, hazardous chemicals, cat walks, ventilationsystems, dust, explosives, blasting, drilling, occupational diseases andimminent danger don't exist” at his operation.” *Id.*

 

In light of all of his arguments,Respondent asks that the citations be vacated. *Id*

 

**Respondent’sResponse Brief**[17]

 

Respondent again contends that “[due] tothe nominal nature of cleaning and the lack of sizing or milling, [TheCreator’s Stone] did not and do[es] not feel that [it is engaged in] sizing ormilling.” R’s Response at 1. Speaking to its contention that The Creator’sStone is a borrow pit, Respondent, asks for reasonableness in making thatdetermination. *Id.*However, the Respondent then translates that reasonablenessdetermination “to the level of hazard.” R.’s Response Br. at 1-2. 

 

 Another argument made by the Respondentis that it has changed its operation so that it operates only intermittently,asserting that it has only been used in “nine days out of the last 45 days.” *Id.*at 2. Respondent repeats its contention that it does not clean, size[18]or mill the material it removes from its natural deposit, contending that thematerial it removes only has “nominal cleaning.” Respondent adds that it nolonger palletizes the material it gets from the pit. *Id.*

 

Additional arguments presented include theRespondent’s belief that the Secretary must prove that its activity is “somewhatlikely to result in harm.” *Id*. The Respondent contends that theSecretary must establish such reasonable likeliness of injury or illness. Respondentasserts that was not established by the Secretary, as The Creator’s Stone has aperfect safety record for this “pit [which] has been open for about 3 years.” *Id*.**

* *

Turning away from the jurisdictionalarguments, the Respondent then contends that civil penalties do not deterunsafe mine operations. *Id.* at 3-4. This claim is wholly immaterial tothis proceeding and will not be further addressed for that reason. This doesnot mean that the Court agrees with the assertion.

 

Shifting to the citation involving lack ofminer training, Citation No. 9451586, Respondent asserts that it “does not takeminer training to operate a skid steer.” *Id.*at 4.Respondent also contends that one employee, Mr. Noyce, “was performing nofunction at the pit other than fueling or general maintenance.” *Id.*at5. Regarding employee Mr. Boss, Respondent, citing 30C.F.R. § 46.5,[19]“New Miner Training,” contends that, as Mr. Cabrera was present, Boss “could beon location without training.” *Id.* at 6. 

 

**CASELAW REGARDING MINE ACT JURISDICTION**

** **

In *Drillex, Inc*., 16 FMSHRC 2391(Dec. 1994), the only issue to be decided by the Commission was whether theRespondent’s operations were subject to Mine Act jurisdiction.  In finding thatthe operation was a “mine” within the meaning of section 3(h)(1) of the MineAct, the administrative law judge found that Drillex had engaged in bothmineral “extraction” and “milling.” Distinguishing the Respondent’s activitiesfrom a “borrow pit,” the judge found that the Respondent did not extractminerals on a one-time or intermittent basis and that it milled minerals for aspecific purpose.[20]The Commission affirmed the judge’s decision. 

 

The Respondent had argued that “it did notextract and process rock for the material’s *intrinsic* qualities but,rather, performed such activities merely as an ‘incidental operation ... forthe construction of ... roads ... .’” *Id*. at 2394 (emphasis added). Indeciding that Drillex was a mine, the Commission first turned to Section 4 ofthe Mine Act, 30 U.S.C. § 803, which provides that each “coal or other mine”affecting commerce shall be subject to the Act. It also noted that Section3(h)(1) of the Mine Act defines “coal or other mine,” in part, as “an area ofland *from which minerals are extracted* ... and ... lands, *excavations*,... facilities, equipment, ... used in, or to be used in, the milling of suchminerals ....” *Id.*(quoting 30 U.S.C. § 802(h)(1)) (emphasis added). 

 

Although the Commission observed that “theAct does not further define ‘extracted’ or ‘the milling of minerals,’” it tooknote that both the Commission and courts have recognized that the legislativehistory of the Mine Act indicates that a broad interpretation is to be appliedto the Act’s definition of a mine. *Id.*(citing *Marshall v. Stoudt’sFerry Preparation Co*., 602 F.2d 589, 592 (3rd Cir. 1979); *Cyprus Indus.Minerals Corp*., 3 FMSHRC 1, 2-3 (January 1981), *aff’d*, 664 F.2d 1116(9th Cir. 1981)). Those sources also took note that this view is supported bythe legislative history of the Mine Act. *Id.*at 2394 (citing S. Rep. No.181, 95th Cong., 1st Sess. 14 (1977), *reprinted in* Senate Subcommitteeon Labor, Committee on Human Resources, 95th Cong., 2d Sess., *LegislativeHistory of the Federal Mine Safety and Health Act of 1977*, at 602 (1978) (“*Legis.Hist.”*)). 

 

In finding that *Drillex*engaged in *both*mineral extraction and milling, the Commission pointed out that ***either***of those activities **independently qualifies** as a basis to constitute theoperation as a “mine” within the meaning of the Act. *Id.*at 2395. TheCommission then turned to the definitions of the terms “extraction” and“milling,” looking to the commonly understood definitions for those words. Thosedefinitional sources informed that “‘extraction’ means the separation of amineral from its natural deposit in the earth” and that “‘milling’ includesprocesses by which minerals are made ready for use.”[21]*Id.*at 2395. 

 

As the Court explained during the hearingand in conference calls with the parties in advance of the hearing, it is notfor this Court to fashion its own determinations of what is a mine, but ratherto look at what Congress,[22]the Commission, and the Federal Courts have said about the subject.

 

The Commission also specifically addressedwhether an operation could be deemed a “borrow pit.” In that regard it lookedto the Interagency Agreement, remarking that borrow pits are subject to OSHAjurisdiction, but even borrow pits are not always under OSHA, as MSHA hasjurisdiction over those borrow pits located on mine property or related tomining. A

 

“Borrow pit” means an area of land where the overburden,consisting of unconsolidated rock, glacial debris, or other earth materialoverlying bedrock is extracted from the surface. *Extraction occurs on aone-time only basis or only intermittently as need occurs, for use as fillmaterials by the extracting party in the form in which it is extracted. Nomilling is involved, except for the use of a scalping screen to remove largerocks, wood and trash. The material is used by the extracting party more forits bulk than its intrinsic qualities on land which is relatively near theborrow pit.*” 

 

*Drillex* at 2396 (citing44 Fed. Reg. at 22828) (emphasis added). 

AlthoughRespondent has called his activity a “borrow pit,”[23]the facts clearly demonstrate that it is not a borrow pit at all.[24]

* *

Although the foregoing is more than sufficientto resolve this matter, another instructive decision on the issue ofjurisdiction is the D.C. Circuit’s decision in *Carolina Stalite Co.,*734F.2d 1547, (D.C. Cir. 1984). That case involved a slate gravel processingfacility. Finding that the operation was a mine within the meaning of section3(h) of the Act, 30 U.S.C. § 802(h) (1982), the Court of Appeals upheld MineAct jurisdiction. In fact, applying *Carolina Stalite* to this case,**theCourt finds that the operation at The Creator’s Stone, small as it indisputablyis, to be a more compelling case for jurisdiction. 

 

Carolina Stalite owned and operated aslate gravel processing facility. Stalite’s property was immediately adjacentto a quarry owned and operated by another company but the two businesses wereentirely independent of each other and their interaction was solely as buyerand seller. A percentage of the quarry’s stone was transported from the quarryto Stalite via conveyors. There was no dispute that the quarry was subject toMine Act jurisdiction. Instead the court was determining if Stalite’s activity,upon receiving the stone from the quarry, was also within the Mine Act’scoverage.  Stalite subjected the material from the quarry to intense heat in arotary kiln and then crushed and sized the material. That end product wasthereafter sold for making concrete masonry blocks. 

 

The D.C. Circuit’s analysis focused onSection 3(h) of the Mine Act. It observed that the distinction within thatsection involved milling and preparation as compared to manufacturing, with thelatter covered by Occupational Safety and Health Act regulation, but with millingand preparation under the Mine Act. 

 

Though separate and legally independententities, the Court of Appeals could not ignore that the two businesses, thequarry and Stalite, constituted “a unified mineral processing operation.” *Id.*at 1551. The Court also referenced that Section 3(h)(1)(C) of the Mine Actincludes within the definition of a mine all facilities engaged in the milling orthe work of preparing minerals. By Congress employing both those terms, theCourt held it signaled that “an expansive reading is to be given to [the]mineral processes covered by the Mine Act.” *Id.*Thus, all those terms canbe viewed “interchangeably to describe the entire process of treating *mined*minerals for market.” *Id.*Accordingly, the Court of Appeals rejected theview that the Mine Act only covers facilities which engage in mineral milling andpreparation in conjunction with the initial extraction of the mineral.[25]*Id.* at 1552. It emphasized that “the Act was intended to establish a ‘singlemine safety and health law, applicable to *all mining activity.*’” *Id.*at1554 (citing S.Rep. No. 461, 95th Cong., 1st Sess. 37 (1977)) (emphasis original).

 

 

 

The Court ofAppeals then took note that decisions “by the Third, Ninth, and Fourth Circuitsaccord with our interpretation of the Act, and uniformly recognize section3(h)’s ‘sweeping definition’ of a mine.” *Id.*(citing *Marshall v. Stoudt’s Ferry**Preparation Co.,* 602F.2d 589 (3d Cir.1979), *Cyprus Industrial Minerals**Co. v. Federal Mine Safety & Health ReviewCommission,* 664 F.2d 1116 (9th Cir.1981),and *Harman Mining Corp.**v. Federal Mine Safety & Health Review Commission,* 671 F.2d 794 (4th Cir.1981)).[26]

 

****These cases drivehome the point that even in cases where the extraction has occurred that doesnot preclude Mine Act jurisdiction. In The Creator’s Stone’svery minimaloperation, all of the elements for jurisdiction obtain, as it removes, that isto say “extracts,” what is undeniably a mineral and then loads those extractedminerals for transportation to sale sites. Thus, The Creator’s Stone’sminiscule operation nevertheless carries the mining process from start tofinish. 

 

            Accordingly,on the basis of the foregoing findings of fact, the discussion of thedefinitional terms in the Mine Act, the legislative history, and relevant caselaw, the Court finds that The Creator’s Stone is a mine. Although theRespondent’s operation is of extremely small size, a description which is bothundeniable and undisputed, in every other respect Mr. Mosley’s tiny operationis a mine: it extracts minerals and loads the excavated material onto a vehiclefor delivery to a point of sale.

 

**PenaltyDetermination**

** **

In assessing civil monetary penalties,Section 110(i) of the Act requires that the Commission consider six statutorypenalty criteria: [1] the operator's history of previous violations, [2] theappropriateness of such penalty to the size of the business of the operatorcharged, [3] whether the operator was negligent, [4] the effect on theoperator's ability to continue in business, [5] the gravity of the violation,and [6] the demonstrated good faith of the person charged in attempting toachieve rapid compliance after notification of a violation.

30U.S.C. § 820(i).

 

As the Commission has noted,“Administrative Law Judges are accorded broad discretion in assessing civilpenalties under the Mine Act. *Westmoreland Coal Co*., 8 FMSHRC 491, 492(Apr. 1986). A Judge's penalty assessment is reviewed under an abuse ofdiscretion standard. *Douglas R. Rushford Trucking*, 22 FMSHRC 598, 601(May 2000).” *Knight Hawk Coal, LLC*, 38 FMSHRC 2361, 2373 (Sept. 2016).

 

**Penalty Factors, as applied to this case**

 

The Creator’s Stone was issued twocitations: Citation No. 9451585, for an allegedviolation of notification of commencement of operations and closing of mines,citing 30 C.F.R. § 56.1000; and Citation No. 9451586, for an alleged aviolation of standard 46.5(a). That latter standard speaks to new minertraining and the citation alleged that two employees, Mr. Boss and Mr. Noycedid not have that training. At the hearing, Respondent’s owner, Charles Mosleyconceded that if he does not prevail on the jurisdictional issue, he would concedethe fact of violations for the two citations, but not the penalties assessedfor them. Tr. 15. In a case of this nature, an extended discussion of theapplication of the penalty factors to the citations is unwarranted. 

 

**Historyof violations:**The Respondent mine's history of violations is reflected in Ex. P-1. Itshistory consists only of the two citations in this matter. Accordingly, thisfactor is of no consequence in the penalty determination. 

 

**Sizeof operator's business:** The mine act does not exempt small mines. However,the size of a mine is taken into account, as it is one of the six statutoryfactors to consider when imposing a civil penalty. The Respondent's mine is verysmall. Tr. 130, 213. Consideration of this factor warrants a lower penalty.

** **

**Goodfaith in compliance after notification of a violation:** For the two citationsinvolved in this docket the Respondent demonstrated good faith.

 

**Effecton the operator's ability to continue in business:** The Court findsthat the Respondent did not meet its affirmative obligation to establish thatthe proposed penalties would have a cognizable effect on the mine's ability tocontinue in business. As the penalties imposed in this decision are, in total,less than the amounts proposed, this conclusion is reinforced.

 

**Negligenceand Gravity**are discussed separately for these two violations.

 

**Negligence:**For the failure to notify of commencement of miningoperations, citing 30 C.F.R.  § 56.1000, CitationNo. 9451585, the penalty was assessed at a proposed $121.00. The negligence wasassessed as high for that violation, but the Court finds that it is moreproperly designated as ‘low.’ The Respondent made no attempt to hide itsoperation and believed, albeit incorrectly, that the Mine Act did not apply toits operation. 

 

Thesame low negligence rationale applies to the other established violation, Citation No. 9451586, for the violation of the minertraining standard 30 C.F.R. § 46.5(a), which was assessed at a proposedpenalty of $355.00. 

 

**Gravity:For Citation No. 9451585**, the failure to notify of commencement of miningoperations, the inspector marked the gravity as ‘unlikely,’ with ‘no lost workdays,’one person affected, and not significant and substantial. The Court finds eachof those designations as consistent with the evidence at the hearing. 

 

 

 

**ForCitation No. 9451586**,the violation of the miner training standard, the inspector marked the gravityas ‘reasonably likely,’ ‘fatal,’ with two persons affected, and significant andsubstantial. The Court finds, based on the evidence at the hearing, that an‘unlikely’ designation is more appropriate. That determination means that thesignificant and substantial designation is unsupported. While a fatal accidentis within the realm of possibilities, given the use of heavy equipment, theunlikely injury designation is given more weight for this factor. 

 

**Conclusion**

** **

****Upon considerationof the each of the statutory penalty factors, the Court concludes that theappropriate civil penalty for Citation No. 9451585, the violation ofnotification of commencement of operations is $50.00 and the appropriate civilpenalty for Citation No. 9451586, the violation of the miner training standard,is $75.00. The Respondent should not be lulled by the imposition of thesereduced penalties to assume that future Mine Act violations will be similarlytreated. Each proven violation is determined on the basis of the particularfacts established, which are then applied to the statutory criteria. 

** **

 

**ORDER**

 

            Forthe reasons set forth above, Citation No.9451585, is **AFFIRMED**and a civil penalty of $ 50.00 (fifty dollars) is imposed for that violationand Citation No. 9451586 is also **AFFIRMED** and a civil penalty of $ 75.00(seventy-five dollars) is imposed for that violation

 

            Atotal civil penalty of $125.00 is hereby imposed upon Respondent for these two violations.Payment is to be made to the Mine Safety and Health Administration within 30days of the date of this Decision. Upon timely receipt of payment, thecaptioned civil penalty matters are **DISMISSED**.

 

 

 

/s/William B. Moran

William B. Moran

                                                                        AdministrativeLaw Judge

 

 

 

Distribution:

 

FelixMarquez, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S.Griffin Street,

Suite501, Dallas, TX 75202 

marquez.felix.r@dol.gov

 

CharlesS. Mosley, The Creator’s Stone, 12118 E. State Hwy 22, Subiaco, AR 72865

csmosley@hotmail.com

----

[1] The government’sexhibits, numbering 1 through 35, were all admitted. Tr. 118. From theRespondent’s Exhibits, Ex. 3 at page 4, the inspector identified the skid steerhe had previously referred to in his testimony. Tr. 120, 121. 

 

[2] AlthoughRespondent, through the testimony of Mr. Barnes suggested that Mr. Noyce didlittle at the site, stating that “[i]t would be hard to say. Mostly he juststops by to drop off a little fuel,” [Tr. 184], the Court finds that theinspector’s more detailed testimony is a more reliable description of thatindividual’s activity at the site. 

[3] Later, theinspector’s supervisor would confirm that publishing a notice in the localnewspaper is not a substitute manner for complying with the required notice toMSHA. Tr. 156.

[4] The Court takesjudicial notice that “dimension stone” is defined as “natural stone or rockthat has been selected and finished (e.g., trimmed, cut, drilled, ground, orother) to specific sizes or shapes. Color, texture and pattern, and surfacefinish of the stone are also normal requirements.” *Dimension Stone*,Wikipedia, the Free Encyclopedia, https://en.wikipedia.org/wiki/‌Dimension_stone (last visitedApr. 15, 2021). *See also*, the National Minerals Information Center’sdescription, which essentially repeats the first definition. *Dimension StoneStatistics and Information*, National Minerals Information Center, https://www.usgs.gov/centers/nmic/‌dimension-stone-statistics-and-information (last visited Apr.15, 2021).

 

[5] In another issuethat the Court does not consider significant to the jurisdictional issue,although the inspector referred to the equipment at the site as “highlyspecialized,” he only meant specialized in the sense of performing certaintasks but that it could be used for other tasks and not simply for miningtasks. Tr. 131-132. Mr. Mosley pointed out that the equipment at his site maybe used in many situations, including farming. Tr. 132. There is no disputeabout this; the equipment at the Respondent’s site is not exclusively used formining. A recurring theme by Mr. Mosley was that he questioned the idea thatsuch equipment was “inherently dangerous” or made “death imminent.” *See, forexample*, Tr. 132 and Tr. 135, 137. In this respect, the Court notes that itdoes not need to find either of those situations are present for Mine Actjurisdiction to apply. Such characteristics, where found, simply make thesituation more serious, but they are not prerequisites to jurisdiction.  

 

[6] The Court finds,as elaborated *infra*, that the essence of the inspector’s statement isaccurate. 

 

[7] As also explained*infra*, case law supports the inspector’s view. Sizing is not a criticalelement for Mine Act jurisdiction to apply. 

[8] In a separateconcern expressed by Mr. Mosley, referring to Section 101(7)(c) of the Mine Act,[30 U.S.C. § 811 (7)(c)], he noted that the Secretary of Labor may modify theapplication of a safety standard to a mine “if the [S]ecretary determines thatan alternative method of achieving the result of such standard exists.” Tr.164. The Court would simply note that provision does not impact Mine Actjurisdiction. Instead, upon filing a petition, it allows for an alternativemethod of compliance where the same measure of protection is provided. 

 

[9] The Court wouldpoint out that, as discussed further *infra*, it is *not* the levelof hazard that determines whether an activity is classified as a borrow pit ora mine.

 

[10] The Court thenposed a hypothetical question for the Inspector, asking if one assumes therewas no sizing at all and that the Respondent’s operation only removed the rockfrom the site, loaded it directly onto a truck, and delivered it to some otherlocation, whether that would be classified as a mine or a borrow pit. InspectorShields answered “If they're just dumping [the material] into a hole and usingit for fill only, they're not using it for its intrinsic value then.” Tr.162-163. In such cases it would not be a mine. *Id.*

[11] The Respondentbrought out, through Mr. Barnes, that it is in The Creator’s Stone economicinterest to have the pieces as large as possible, as larger pieces fetch moremoney. Tr. 183. Smaller pieces, he noted, are called a “builder,” and are“[w]hat a homeowner would use for around a flowerbed or stepping stones orsomething similar to that.” *Id.* But, minimal processing or not, theCourt notes that this testimony underscores that the site was not functioningas a borrow pit. 

 

[12] Describing theskid steer operation, he stated, “I don’t know how you could be a danger toyourself. That, you know, that the operator on the machine, that’s all he'sdoing, you know.   He [ ] very seldom get[s] off the machine. He just stays onthe machine.” Tr. 186.

 

[13] Two comments bythe Court are in order regarding Mr. Barnes’ remark. First, those two or threeother unidentified operations are not the subject of this litigation. Second,the Court must determine whether the factual record supports a determinationwhether The Creator’s Stone is a mine or not. 

 

[14] The Secretaryadvised that he would not be filing a response brief in this matter. Email fromFelix Marquez, Esq., Department of Labor, to the Court (Apr. 1, 2021). 

 

[15] The same ProgramPolicy Manual addresses “Borrow Pits,” and nothing in that discussion conflictswith MSHA’s position in this case, as that manual informs that 

 

‘Borrow Pits’ are subject to OSHA jurisdiction exceptthose borrow pits located on mine property or related to mining. (For example,a borrow pit used to build a road or construct a surface facility on mineproperty is subject to MSHA jurisdiction.) ‘Borrow Pit’ means an area of landwhere the overburden, consisting of unconsolidated rock, glacial debris, or otherearth material overlying bedrock is extracted from the surface. *Extractionoccurs on a one-time basis or intermittently as need occurs, for use as fillmaterials by the extracting party in the form in which it is extracted.* Nomilling is involved, except for the use of a scalping screen to remove largerocks, wood and trash. *The material is used by the extracting party more forits bulk than its intrinsic qualities on land which is relatively near theborrow pit*. 

 

Sec.Br. at 5-6 (emphasis added).

 

 

[16] However, theSecretary mistakenly cites *State of Alaska, Dept. of Transportation*, 34FMSHRC 179, 181 (Jan. 2012)(ALJ) as a second example of activity deemed outsideof Mine Act jurisdiction because that judge found that “the extraction activitieswere relatively close to the maintenance sites (approximately one-quartermile), conducted intermittently (seasonal use), and had no intrinsic value. ...[a]lthough the material may have had ‘commercial value’ it did not haveintrinsic value to the end-user.” Sec. Br. at 8. As described *infra*, infact the Commission reversed the administrative law judge, rejecting thedetermination that it was a borrow pit and finding that the Alaska operations *were*subject to the Mine Act. *State of Alaska*, *Dep’t of Transportation*,36 FMSHRC 2642, 2649 (Oct. 2014).

[17] As with theparties’ initial briefs, the Court considered all contentions raised in thosesubmissions. That particular arguments may not be expressly addressed does notmean they were not considered. Rather, the Court determined that its otherfindings and statements sufficiently spoke to those issues, directly orindirectly, and therefore did not require additional discussion.

 

[18] The Respondentcontinues its argument that it does not engage in sizing, going so far as toassert that “[t]he inspectors want [The Creator’s Stone] to be breaking andsizing in order for them to have jurisdiction. The only breaking taking placeis ***during the excavation***. The layers (thickness) were alreadyestablished by The Creator.” *Id.*at 4 (emphasis added). 

 

[19] The citedprovision, 30 C.F.R. § 46.5, titled “New minertraining,” provides: 

 

(a) Except as provided in paragraphs (f) and (g) of thissection, you must provide each new miner with no less than 24 hours of trainingas prescribed by paragraphs (b), (c), and (d). Miners who have not yet receivedthe full 24 hours of new miner training must work wherean experienced miner can observe that the new miner is performing his or herwork in a safe and healthful manner.

 

Therecord matters. In this case, there is no evidence of a record that the minerwas working “where an experienced miner can observe that the new miner isperforming his or her work in a safe and healthful manner.” Mr. Cabrera did nottestify. 

 

TheRespondent makes similar arguments along this line, invoking 30 C.F.R. § 46.2 for the proposition that miners do notinclude “maintenance or service workers who do not work at a mine site forfrequent or extended periods.” *Id.* at 7. Again, there is no evidence tosupport this claim. Then, returning to his fundamental argument, the argumentwhich is really what this case is about, Respondent cites to 30 C.F.R. §46.2(h), for his belief that The Creator’s Stone is not a mine. *Id*. However,Respondent does not take account of the full text of that provision, whichprovides that “[**m**]**ining operations means** mine development,drilling, blasting, ***extraction***, milling, crushing, screening, orsizing of minerals at a mine; maintenance and repair of mining equipment; ***andassociated haulage of materials*** within the mine from these activities.”30 C.F.R. § 46.2(h) (emphasis added).

 

[20] If something werea “borrow pit,” as opposed to a “mine,” it would be subject to the jurisdictionof the Department of Labor’s Occupational Safety and Health Administrationrather than MSHA jurisdiction, pursuant to the interagency agreement betweenMSHA and OSHA. However, as set forth in this decision’s Findings of Fact, TheCreator’s Stone is a mine, not a borrow pit. *See*, MSHA-OSHA InteragencyAgreement, 44 Fed. Reg. 22827 (Apr. 17, 1979), amended, 48 Fed. Reg. 7521 (Feb.22, 1983) (“Interagency Agreement.”).

 

[21] For the term“extraction,” the Commission cited the Bureau of Mines, U.S. Dept. of Interior,Dictionary of Mining, Mineral, and Related Terms 404 (1968) (“DMMRT”) at 932. Concerning“milling,” the same source defined that term to include “processes by whichminerals are made ready for use.” *Id*. at 706. It noted that *Webster’sThird New International Dictionary, Unabridged* 1434 (1971) is in accordwith that definition of “milling.” The Commission also pointed out that theInteragency Agreement is in concert with those sources. That InteragencyAgreement 

 

defines “milling” as: the art of treating the crude crustof the earth to produce therefrom the primary consumer derivatives. The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.*at2395 (citing the Interagency Agreement at 44 Fed. Reg. at 22829). The sameAgreement defines “crushing” as “the process used to reduce the size of minedmaterials into smaller, relatively coarse particles,” among milling processessubject to MSHA’s regulatory authority.” *Id*. 

 

[22] RegardingCongress’ intent, thereportof the Senate Committee on Human Resources states:

 

“the definition of ‘**mine**’**is clarified to include the areas, both underground and on the surface, fromwhich minerals are extracted** ... and areas appurtenant thereto.... TheCommittee notes 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 [the] Act be given the broadest possibl[e] interpretation,and ... that doubts be resolved in favor of inclusion of a facility within thecoverage of the Act.” 

 

*Legis. Hist.*at 602.

 

*Drillex* at n. 4.

 

[23] Mr. Mosley statedthat his site was “very comparable to a borrow pit.” Tr. 18. At hearing, hesaid, “I’m declaring it to be a borrow pit.” Tr. 27. At other times, hedescribed it as a “quarry.” For example, in Respondent’s Exhibit 1, photos aredescribed as “The first five photos of the quarry that the DOL is calling amine, The Creator's Stone quarry.” Tr. 17. However, when asked about calling ita quarry, Mr. Mosley responded, “I am calling [it] rock, and I would say quarrybest depicts it, a quarry or a borrow pit.” *Id*. The Court cannot ignorethat in the Respondent’s Exhibit 2, his various local state filings continuallyrefer to the operation as a quarry. For example, within that Exhibit 2, afiling with the State of Arkansas Mining Program, The Creator’s Stone filed a“Notification of Intent to Quarry in June 2018. Of course, the names eitherside attaches to the description of the activity at The Creator’s Stone do notdetermine the outcome. Rather, the underlying facts determine the correctappellation for the site. 

 

[24] The limited scopeof a borrow pit was highlighted in a different State of Alaska case, *Stateof Alaska, Dep’t. of Transportation*, 36 FMSHRC 2642 (Oct. 2014) (“*AlaskaDOT*”). There, the Commission determined that sand and gravel operationsperformed by the State of Alaska Department of Transportation (“AKDOT”), whichoperations were conducted in conjunction with maintaining a highway used byvehicles to service the Alaska Pipeline, were subject to the Mine Act’sjurisdiction. Although the Interagency Agreement generally accords OSHA, andnot MSHA, jurisdiction over borrow pits, it: 

 

limits what can be considered a “borrowpit” to an area of land where 

 

“[e]xtraction occurs on a one-timeonly basis or only intermittently as need occurs, for use as fill materials bythe extracting party in the form in which it is extracted. No milling isinvolved, except for the use of a scalping screen to remove large rocks, woodand trash. The material is used by the extracting party more for its bulk thanits intrinsic qualities on land which is relatively near the borrow pit.[Interagency Agreement] at 22,828.

*AlaskaDOT*at2649. But contrast that MSHA describes a borrow pit as applicable to situations“where a landowner uses material in basically the same form as it is extractedto fill potholes in a road, the excavation will be considered a borrow pit andthus not subject to MSHA jurisdiction.” *Id.*at 2649 (quoting underlyingALJ decision at 34 FMSHRC 179, 184-185 (Jan. 2012) (Administrative Law JudgeFeldman)) (emphasis added). So too, the Commission found that “milling”occurred. Again the Commission looked to the Interagency Agreement and its statementthat:

 

[m]illing consists of one or more of the followingprocesses: crushing, grinding, pulverizing, *sizing*,.... 44 Fed. Reg. at22,829 (emphasis added). “Sizing” is defined in the Interagency Agreement as “[t]he 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. ”  

 

*AlaskaDOT*at2649 (citing Interagency Agreement at 22,829-30).

 

[25] The Court ofAppeals also held that the determination by the Secretary of Labor in decidingthe whether an activity should be ascribed to OSHA or to MSHA is due deference.*CarolinaStalite Co.,*734F.2d at**1552-1553..

 

[26] Ever so briefly,this Court notes that in *Marshall v. Stoudt’s Ferry,*though theoperation didn’t extract minerals, it still prepared them. In *CyprusIndustrial Minerals*, drilling exploratory drifts into hill in search of “acommercially exploitable deposit” was enough, even without any extraction, forthe Mine Act to apply. Perhaps the most striking example of the breadth of theMine Act is *Harman Mining Corp*., where jurisdiction was upheld undercircumstances where the mineral had been extracted and prepared. Harman wasengaged only in car dropping, which was loading the coal on railroad cars.