1 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX 303-844-5268

May 24, 2023 

DECISION

Appearances: Felix R. Marquez, Esq.,1

 Office of the Solicitor, U.S. Department of 

Labor, Dallas, Texas for Petitioner;

Andy Carson, Esq., Marble Falls, Texas for Respondent. 

Before: Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Cactus 

Canyon Quarries Inc. (“Cactus Canyon”) pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties 

presented testimony and documentary evidence at a hearing held via the Commission’s secure 

video conferencing system and filed post-hearing briefs. Three section 104(a) citations with a 

total proposed penalty of $375.00 were adjudicated at the hearing. Although I have not included 

a detailed summary of all evidence or each argument raised, I have fully considered all the 

evidence and arguments. For reasons set forth below, I MODIFY Citation No. 9643094 and 

AFFIRM Citation Nos. 9643093 and 964395. 

Cactus Canyon Quarries operates the Fairland Plant (the “facility”), a surface facility in 

Burnet County, Texas. The facility prepares rock for use in terrazzo flooring. Andy Carson2 is 

1

 Felix Marquez entered his appearance as counsel for the Secretary on December 13, 2022. 

Prior to that date, the case was handled by a different attorney in the Dallas Solicitor’s office. 

2 Carson is a licensed attorney, geologist by training and practice, and the President and head of 

operations for Cactus Canyon. Ex. F. Carson assisted with initial construction of the Fairland 

Plant. Tr. 139. Carson and another individual handle all electrical installation repairs at the 

Fairland Plant. Tr. 139. 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner

 v. 

CACTUS CANYON QUARRIES INC., 

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. CENT 2022-0010-M 

A.C. No. 41-00009-542457 

Fairland Plant & Qys
2

the president of Cactus Canyon and is also an attorney. Carson represented Cactus Canyon at the 

hearing and testified as its only witness. MSHA Inspector Ray Hurtado3 was the Secretary’s sole 

witness at the hearing.

I. BACKGROUND AND PRELIMINARY MATTERS

This case has a complicated history. On October 4, 2021, Cactus Canyon mailed its 

Notice of Contest for the three subject citations to MSHA. Subsequently, on November 26, 

2021, i.e., more than 45 days after receipt of the Notice of Contest4

, the Secretary filed a Motion 

for Extension of Time to File Initial Pleading citing the need for “additional time to allow the 

parties to thoroughly explore settlement in this matter.” The motion asked for a 60-day 

extension of time and did not provide any justification for the delay in filing the penalty petition 

other than saying that the time could be used to settle the case. November 26, 2021 was the 

Friday after Thanksgiving and the motion noted that the Secretary’s counsel emailed the 

operator on that date to see if it objected to the motion but did not receive a response. On 

December 1, 2021, which was three workdays after the Secretary filed the motion for extension 

of time, the Commission’s Chief Administrative Law Judge (the “Chief Judge”) found that the 

Secretary had shown good cause and issued an order (the “Chief Judge’s Order”) granting the 

Secretary’s motion and affording the Secretary until January 18, 2022, to file the initial 

pleading.5 

After first asking the Chief Judge to reconsider the Chief Judge’s Order, which was not 

granted, Cactus Canyon filed a petition for discretionary review (“PDR”) with the Commission 

on December 23, 2021, challenging the validity of the Chief Judge’s Order and asking that the 

case be dismissed. On January 4, 2022, the Commission issued a notice stating that “after 

3 Hurtado has been an MSHA inspector for 10 years. Tr. 7. As part of Hurtado’s training to 

become an inspector he attended the National Mine Academy and was trained on electrical 

hazards. Tr. 9, 69-70. Hurtado conducts 60 to 80 inspections per year and estimates that 80 to 

90 percent of the job sites he inspected had electrical hazards that he cited. Tr. 10-11. Prior to 

working for MSHA Hurtado worked for 10 years in the highway construction industry. Tr. 7-8, 

68. During his time in the highway construction industry Hurtado worked as a job foreman at 

sites where electrical tools were used and inspected daily. Tr. 69. Although Hurtado is not a 

certified electrician, at hearing he demonstrated a reliable working knowledge of residential 

electrical wiring. Tr. 71-72. 

4 Commission Procedural Rule 28(a) requires the Secretary to file his petition for assessment of 

civil penalty (“penalty petition”) within 45 days of receipt of an operator’s notice of contest. 29 

C.F.R. § 2700.28(a).

5 Commission Rules 8(a) and 10(d) allow a party eight days, excluding weekends and holidays, 

to file an opposition to a motion. 29 C.F.R. § 2700.8(a) and 10(d).
3

consideration by the Commissioners, no two Commissioners voted to grant the petition [for 

discretionary review] or to otherwise order review.”6

 

On January 10, 2022, Cactus Canyon filed a petition for review of the Commission’s 

order denying the PDR with the U.S. Court of Appeals for the Fifth Circuit. (Case No. 22-

60030). 

On January 18, 2022, the Secretary electronically filed the petition for assessment of 

penalty with the Commission and served the same upon Cactus Canyon via email. After Cactus 

Canyon filed its answer, the case was assigned to me on February 14, 2022.

On April 27, 2022, I granted the Secretary’s motion to stay the case, over Cactus 

Canyon’s objection, pending the outcome of the petition for review before the Fifth Circuit. I 

subsequently lifted the stay on July 20, 2022, two days after the Fifth Circuit dismissed the 

petition for review for lack of subject matter jurisdiction.7 

A hearing in this case was held on February 28, 2023. Several motions were filed by the 

parties prior to the hearing, including a motion for summary decision filed by Cactus Canyon on 

May 9, 2022. Among other things, the motion raised the same arguments relating to the chain 

of events surrounding the Chief Judge’s Order that were raised in both the motion to reconsider 

and PDR, asked that the citations be vacated, and the case dismissed. I denied the motion by 

order dated August 18, 2022. Cactus Canyon Quarries Inc., 44 FMSHRC 609 (Aug 2022) 

(ALJ). In denying the motion for summary decision, I relied to a large extent on the fact that 

the Chief Judge determined that good cause had been shown for the Secretary’s motion for an 

extension of time to file the penalty petition, that his determination was the law of the case, and 

that I was not in a position to overturn his determination.

II. JURISDICTION

One of the principal issues in this case is whether MSHA had jurisdiction to inspect 

Cactus Canyon’s Fairland Plant on July 27, 2021, the date the subject citations were issued. 

The Secretary argues that the Fairland Plant is subject to Mine Act jurisdiction because mineral 

milling takes place at the facility.8 Cactus Canyon contends, among other things, that the nature 

6 In its motion for reconsideration and the PDR, Cactus Canyon argued that the Commission’s 

decision in Salt Lake County Road Dep’t., 3 FMSHRC 1714 (July 1981), as well as other 

Commission case law, provides that the Secretary must show good cause for its failure to timely 

file a penalty petition and that the Secretary failed to do so in this case. 

7 Through every stage of this litigation Cactus Canyon has maintained that the Chief Judge’s 

order was invalidly issued. Cactus Canyon has argued the Secretary failed to timely file and 

serve the penalty petition or show good cause for why the late filing should be excused and has 

consequently asked that the case be dismissed.

8 The Secretary spent much of his brief arguing that the Fairland Plant is not a “borrow pit” and, 

as a result, does not qualify for the “borrow pit exception” to Mine Act jurisdiction in the 
4

of its operation has changed in recent years with the result that the facility no longer fits within 

the definition of “coal or other mine” in Section 3(h)(1) of the Mine Act. 30 U.S.C. § 

802(h)(1).9 For reasons set forth below, I find MSHA had jurisdiction to inspect Cactus 

Canyon’s Fairland Plant and issue the subject citations.

a. Summary of Testimony on the Issue of Jurisdiction

Both Hurtado and Carson offered testimony relating to the issue of MSHA jurisdiction 

to inspect the Fairland Plant. Hurtado initially testified that rock or mineral was extracted at the 

Fairland Plant site, but later conceded no extraction occurred there and, instead, Cactus Canyon 

brought in all material from other locations, including Mexico, for processing at the Fairland 

Plant. Tr. 65-67, 75. 

Hurtado testified that milling, in the form of crushing, screening, and sizing of material, 

did occur at the facility. Tr. 76-77. Specifically, Hurtado testified that he observed mobile 

equipment that loaded material into “two independent plants, both equipped with screens for 

sizing rock and crushers to make a certain size of product[,]” as well as dump trucks that moved 

material as needed. Tr. 77, 81. 

Carson testified regarding the history of the Fairland Plant and its operation. While the 

facility previously produced material for architectural precast concrete projects, it currently 

produces material for terrazzo stone floors from dimension stone. Tr. 141, 144, 148. 

According to Carson, no extraction occurs at the Fairland Plant and all dimension stone 

processed into terrazzo stone at the facility is bought from other sources.10 Tr. 149. However, 

Carson also acknowledged that 10 to 15 percent of Cactus Canyon’s business comes from 

“something that we’ve mined ourselves.”11 Tr. 152. 

MSHA-OSHA Interagency Agreement. Sec’y Br. 5-10. However, I need not address that issue 

because Cactus Canyon did not argue at hearing, in its brief, or in its reply brief that the Fairland 

Plant is a borrow pit.

9 In previous cases, Cactus Canyon stipulated to MSHA jurisdiction. See Cactus Canyon 

Quarries, 44 FMSHRC 289 (April 2022) (ALJ). Cactus Canyon now maintains that its 

operations have changed since that time so that the facility should be inspected by OSHA and not 

MSHA.

10 Carson testified Cactus Canyon brings in rock from Mexico, a Vulcan Materials Mine, and a 

from “a Texas landowners’ mine.” Tr. 149-150. Although some of the rock that arrives at the 

facility is a minimum of five inches in diameter, other rock is a minimum of ten inches in 

diameter. Tr. 147. 

11 Although Carson did not so state, Cactus Cayon may have mined this rock at the “Texas 

landowner’s mine.” 
5

Carson explained that dimension stone is delivered to the Fairland Plant via truck or rail. 

Following delivery, the stone may be laid out on concrete, washed/sprayed with water, and 

inspected to make sure it meets certain specifications, including proper color and size, before 

being sorted and stored in piles by color on the property. Tr. 148, 153. At current sales rates, the 

piles of dimension stone can remain on-site anywhere from 20-45 years. Tr. 147-148. According 

to Carson, on average, 20 years pass between when the dimension stone is placed into a pile and 

then processed into terrazzo stone at the Fairland Plant. Tr. 150. Carson intends to make all the 

dimension stone on site into terrazzo stone or find another market for the material in its current 

condition. Tr. 170. 

According to Carson, to get the stone to the right size and shape for Cactus Canyon’s 

terrazzo stone customers, the Fairland Plant utilizes a slow, deliberate, “closed circuit system” 

where the dimension stone is fed into a hopper, crushed, and then oversized material is screened 

out so it can be recirculated and “crushed down,” or “size reduced,” again. Tr. 146, 171, 175-

176. On average, materials pass through the system five to six times before the correct size and 

shape is reached, with only 10-15 percent of the material lost to fines.12 Tr. 145, 147, 152, 176. 

The same process is used for all rocks on the property. Tr. 177. 

Carson testified that almost all material produced is bagged and sold. Tr. 176. He stated 

that “[t]oday we sell across North America and occasionally the Far East.” Tr. 147.

b. Findings of Fact and Conclusion of Law on the Issue of Jurisdiction

Section 4 of the Mine Act states that “[e]ach coal or other mine, the products of which 

enter commerce, or the operations or products of which affect commerce, and each operator of 

such mine, and every miner in such mine shall be subject to the provisions of this Act.” 30 

U.S.C. § 803. Accordingly, for MSHA to have had jurisdiction to inspect the Fairland Plant, the 

evidence must establish, first, that the Fairland Plant was a “coal or other mine” under the Act 

and, second, that the products of the Fairland Plant enter commerce or the operation or products 

of the Fairland Plant affect commerce.

12 Carson testified that the dimension stone is reduced to a size less than 3/8 of an inch, but 

greater than 1/16 of an inch, and “almost purely cubicle in shape.” Tr. 145,151-152. In order to 

get the correct shape, the plant “can’t run very fast at all[,]” and the material goes through “a lot 

smaller cone crushers” that are run “a lot wider” than the plant previously used. Tr. 145-146.

Carson acknowledged some material brought to the Fairland Plant must be broken with a 

hammer attached to an excavator before it can be processed. Tr. 175. Carson testified that “[a]ll 

we’re doing is size reducing[,]” and asserted that “none of the stone delivery is crude or ore. It’s 

all finished. We don’t separate minerals from the gangue or crude or ore. There is never any 

grind, concentration, washing, drying, roasting, pelletizing, centering, evaporating, calcining, 

kiln treatment, sawing, or cutting the stone, heat expansion, retorting, leaching, briquetting at this 

location.” Tr. 150-151.
6

Is the Fairland Plant a “coal or other mine” under the Mine Act?

In the case at hand, the Secretary seeks to establish Mine Act jurisdiction over the 

Fairland Plant via subsection (C) of section 3(h)(1) of the Act, which, in pertinent part, defines a 

“coal or other mine” to include “structures, facilities, equipment, machines, [and] tools . . . used 

in ... the milling of ... minerals.” 30 U.S.C. § 802(h)(1).13 

The Mine Act does not define the term “milling”. When a statutory term is not 

expressly defined it should be accorded its commonly understood definition. Drillex Inc., 16 

FMSHRC 2391, 2395 (Dec. 1994). In Watkins Eng’rs & Constructors, 24 FMSHRC 669, 674-

675 (July 2002) the Commission, when analyzing the commonly understood definition of 

“milling” and related terms, stated the following:

Within the industry, milling is defined as: “The grinding or crushing 

of ore. The term may include the operation of removing valueless or 

harmful constituents ... ,” while mill is defined as a “mineral 

treatment plant in which crushing, wet grinding, and further 

treatment of ore is conducted.” . . . [Dictionary of Mining, Mineral, 

and Related Terms 344 (2d ed. 1997) (“DMMRT”)] (emphasis 

added); see also Alcoa Alumina & Chems., L.L.C., 23 FMSHRC 

911, 914 (Sept. 2001) (using DMMRT to determine usage in mining 

industry). The ordinary meaning of “to mill” is “to crush or grind 

(ore) in a mill,” and the term “a mill” is defined as “a machine for 

13 The Mine Act defines “coal or other mine” as follows:

(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;

30 U.S.C. § 802(h)(1).
7

crushing or comminuting some substance.” Webster's Third New 

Int'l Dictionary (Unabridged) 1434 (1993); see also Nolichuckey 

Sand Co., 22 FMSHRC 1057, 1060 (Sept. 2000) (“Commission ... 

look[s] to the ordinary meaning of terms not defined by statute”). 

Although the Mine Act does not expressly define the term “milling,” it does grant the 

“Secretary discretion, within reason, to determine what constitutes mineral milling. . . [.]” 

Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. Cir. 1984).14 In 1979 the Secretary 

exercised that discretion when MSHA and OSHA entered into an interagency agreement to 

delineate certain areas of authority between the two agencies and set forth guidelines for 

resolving jurisdictional questions involving milling. MSHA-OSHA Interagency Agreement, 44 

Fed. Reg. 22827 (April 17, 1979) amended by 48 Fed. Reg. 7,521 (Feb. 22, 1983) (“Interagency 

Agreement” or “the Agreement”). Among other things, the Interagency Agreement clarifies the 

agencies’ intent that the Mine Act, as opposed to the OSH Act, be applied to milling operations, 

and reiterates Congress’s intent that jurisdictional doubts be resolved in favor of inclusion of a 

facility within coverage of the Mine Act. 15 Id. 

Appendix A to the Agreement describes “milling” as a process “to effect a separation of 

the valuable minerals from the gangue constituents of the material mined” as well “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.” 44 Fed. 

Reg. at 22829. 

In addition, Appendix A also contains a list of “general definitions of milling processes 

for which MSHA has authority to regulate[,]” which includes the terms “crushing” and “sizing.” 

“Crushing” is defined as “the process used to reduce the size of mined materials into smaller, 

relatively coarse particles[,]” and “may be done in one or more stages, usually preparatory for 

the sequential stage of grinding, when concentration of ore is involved.” 44 Fed. Reg. at 22829. 

“Sizing” is defined 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.” 44 Fed. Reg. at 22829-22830.

14 Section 3(h)(1) of the Act states 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[.]” 30 U.S.C. § 

802(h)(1). 

15 In Donovan v. Carolina Stalite Co. the D.C. Circuit Court of Appeals recognized “every 

company whose business brings it into contact with minerals is not to be classified as a mine 

within the meaning of section 3(h). The jurisdictional line drawn by the statute rests upon the 

distinction, which is somewhat elusive, to say the least, between milling and preparation, on the 

one hand, and manufacturing, on the other. Classification as the former carries with it Mine Act 

coverage; classification as the latter results in Occupational Safety and Health Act regulation.”

734 F.2d 1547, 1551 (D.C. Cir. 1984).
8

Although the Interagency Agreement is not dispositive, it can assist in determining 

whether the Secretary’s application of the term “milling” to a particular facility is reasonable.

See Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. Cir. 1984). 

I find that Cactus Canyon engaged in “milling” at the Fairland Plant by crushing the 

dimension stone to reduce the size of the material to a cubic shape that can be used in the 

construction of terrazzo flooring. Hurtado and Carson both testified to the presence of crushers 

at the Fairland Plant. Carson explained that, at the facility, dimension stone is taken from the 

on-site piles, broken up with a hammer attached to excavator if needed, dropped in a hopper, 

crushed, albeit slowly and deliberately, screened for a particular size, then recirculated through 

the same system as many times as necessary to achieve the correct size and shape for Cactus 

Canyon’s terrazzo stone customers. Carson himself stated that “[a]ll we’re doing is size 

reducing.” Tr. 150.

As outlined in Watkins Eng’rs & Constructors, the mining industry’s understanding of 

the terms “milling” and “mill,” as well as the common dictionary definitions of “a mill” and “to 

mill” all contemplate the crushing of material. Here, Cactus Canyon was crushing dimension 

stone to produce stone used to construct terrazzo flooring. Moreover, Cactus Canyon’s use of 

crushers to reduce the size of the dimension stone clearly amounted to “crushing” as that term is 

defined in the Interagency Agreement.16

Cactus Canyon engaged “milling” at the Fairland Plant by “sizing” the material it 

processed. In State of AK Dept.of Transp., 36 FMSHRC 2642, 2649 (Oct. 2014), the 

Commission cited the Interagency Agreement’s inclusion of “sizing” in its list of milling 

processes and found that the operator “clearly engag[ed] in ‘milling’ under section (h)(1)” 

where it used a screen to separate material “based on size, with oversized rock separated out 

entirely.” Here, like the operation at issue in State of AK Dept.of Transp., the Fairland Plant 

screened material to separate that which was correctly sized from that which was still oversized. 

While the operation at issue in State of AK Dept.of Transp. screened out oversized rock, wood 

and trash from the material it was extracting, here, as discussed above, Cactus Canyon subjected 

oversized material to further “milling” via additional crushing to further reduce the size and 

shape of the rock. Ultimately, the purpose of screening and crushing the material was to 

16 The DMMRT 135 (2d ed. 1997), defines “crushing” as “size reduction into relatively course 

particles by stamps, crushers, or rolls.” The Interagency Agreement’s definition of the 

“crushing,” supra, is almost identical to that of the DMMRT, but also includes a supplemental 

statement that “[c]rushing may be done in one or more stages, usually preparatory for the 

sequential stage of grinding, when concentration of ore is involved.” Cactus Canyon, in its brief,

seemingly argues that this supplemental statement changes the definition of “crushing” to require

that the act be preparatory to the sequential stage of grinding and concentration of ore. CC Br. 3-

4, 9-10. However, the supplemental statement says only that crushing “may” be done in one or 

more states and “usually” is preparatory for grinding when concentration of ore is involved. 

Given the use of the qualifying terms “may” and “usually,” I decline to find that “crushing,” as 

defined in the agreement, requires that the act be preparatory to the sequential stage of grinding 

and concentration of ore. 
9

produce a product that, according to Carson, was less than 3/8 of an inch, but greater than 1/16 

of an inch, and “almost purely cubicle in shape.” Given that Cactus Canyon crushed and 

screened rocks of various size to produce a product between a maximum and minimum size, I 

find that it clearly engaged in “sizing” material as that term is defined in the Interagency 

Agreement. 

Finally, I find that the processes described above and utilized at the Fairland Plant fit 

within the Interagency Agreement’s description of “milling.” Cactus Canyon utilized those 

processes to reduce the dimension stone to a certain specified size and shape so it could be sold 

for use in terrazzo stone flooring. At hearing, when responding to a question the court asked

regarding the processes used at the facility, Carson stated that “when we’re doing it right now, 

we lose 10 percent to fines. 15 percent to fines.” Tr. 176. The materials lost to fines had to be 

removed from the terrazzo stone product Cactus Canyon produces and sells.17 The separation of 

valuable terrazzo stone material from fines generated during crushing and sizing is the type of 

process contemplated by the Interagency Agreement’s definition of milling, i.e., a separation of 

the valuable minerals from materials that cannot be used in terrazzo flooring.

18

Based on the above analysis, I find that “milling,” as that term is understood both in the 

mining industry and commonly, occurred at the Fairland Plant. Moreover, I find that the 

Fairland Plant’s operation squarely fits within the Interagency Agreement’s definitions of 

“crushing” and “sizing” and that the Secretary reasonably applied the term “milling” to the 

facility. 

The Commission has explained that “milling” “independently qualifies . . . [an] 

operation as a ‘mine’ within the meaning of the Act.” Drillex Inc., 16 FMSHRC 2391, 2395 

(Dec. 1994). Moreover, the legislative history of the Act makes clear Congress intended “that 

what is considered to be a mine and to be regulated under this 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.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on 

Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 602 (1978) (“Legis. Hist”). Accordingly, I find that the Fairland Plant is a mine 

under the Act because “milling” occurred at the facility.

Before turning my attention to whether the products of the mine enter commerce or the 

operation or products of the mine affect commerce, I must first address one of Cactus Canyon’s 

primary jurisdictional arguments, which merits further discussion. 

17 Carson explained that the terrazzo industry depends on good quality control. Tr. 144. 

18 I note that in Watkins Eng’rs & Constructors, 24 FMSHRC 669, 675 (July 2002) the 

Commission stated that “[i]n enacting the Mine Act, Congress did not impose upon the Secretary 

a technical definition of milling based on the separation of valuable from valueless materials, nor 

in the Act’s legislative history did it intimate that separation was critical to the determination that 

‘milling’ took place.”
10

Cactus Canyon argues the Fairland Plant is not subject to MSHA jurisdiction because it 

is not a “mine” under the Act, nor is it at, adjacent to, appurtenant to, or connected to an area of 

land where minerals were extracted from their natural deposits. CC Br. 6-8. In support of its 

argument, Cactus Canyon cites the Commission’s decision in KC Transport, Inc., 44 FMSHRC 

211 (Apr. 2022)19, as well as two cases relied upon by the Commission in that decision, i.e., 

Maxxim Rebuild Company LLC v. FMSHRC, 848 F.3d 737 (6th Cir. 2017) (“Maxxim”), and 

Dep't of Labor v. Ziegler Coal Co., 853 F.2d 529, 533-34 (7th Cir. 1988) (“Ziegler”). 

I disagree with Cactus Canyon’s interpretation. None of the three cited cases involved

milling,20 and language in those decisions contradicts Cactus Canyon’s asserted interpretation.21

Moreover, Cactus Canyon’s interpretation contradicts precedent of the Commission and courts 

that “milling” operations independently qualify as “mines” under the Act. Drillex Inc., 16 

FMSHRC 2391, 2395 (Dec. 1994); see Sec’y of Labor v. National Cement Co. of Cal. Inc., 573 

F.3d 788, 795 (D.C. Cir 2009) (subsection (C) of the Act’s definition of “mine” can reach 

facilities “not located within an extraction area.”); see also Donovan v. Carolina Stalite Co., 

734 F.2d 1547, 1551-1552 (D.C. Cir. 1984) (the Act “does not require that . . . [structures and 

facilities used in milling] be owned by a firm that also engages in the extraction of minerals 

from the ground or that they be located on property where such extraction occurs.”)

19 The Commission’s decision in KC Transport is currently on appeal to the D.C. Circuit Court of 

Appeals, Docket No. D.C. No. 22-1071.

20 KC Transport involved the Secretary’s attempt to exert jurisdiction over trucks parked at a 

maintenance facility, as well as the facility itself, which was operated by an independent trucking 

company that provided hauling services to multiple businesses, including coal operators. 

Maxxim involved the Secretary’s attempt to exert jurisdiction over a shop that made and repaired 

mining equipment. Ziegler involved a question of jurisdiction over a repair shop. In each case, 

the facility, shop or equipment was not on, adjacent, or appurtenant to an extraction, milling, or 

preparation site.

21 In KC Transport the Commission noted that the Coal Act, the predecessor to the Mine Act, 

included in its jurisdiction “‘lands’ where extractive mining, milling, or preparation occurs.” 44 

FMSHRC at 218. There, the Commission expressly acknowledged that in passing the Mine Act 

Congress did not intend to expand the scope of jurisdiction and stated that “MSHA must 

thoroughly inspect operations conducting mining, milling, and preparation activities and all 

instruments and instrumentalities used in such operations.” 44 FMSHRC at 219-220. Similarly, 

in Maxxim, the Sixth Circuit Court of Appeals noted that the text and context of the Mine Act 

“limit the agency’s jurisdiction to locations and equipment that are part of or adjacent to 

extraction, milling, and preparation sites.” 848 F.3d at 744. Finally, the Commission in KC 

Transport cited Ziegler’s recognition of the “‘geographical component’ of the situs of a facility 

[that] . . . ‘[t]he statutory definition of a coal mine plainly contemplates that the facilities used in 

the work of extracting coal must be located on or below the area of land where the coal is 

extracted, milled, or prepared.’” 44 FMSHRC at 223 (emphasis added).
11

The Commission in KC Transport found that there is “locational” element to the Mine 

Act’s definition of “coal or other mine.” My reading of that decision, in conjunction with other 

case law, is that the locational element limits jurisdiction under subsection (C)22 to “lands, 

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

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

dams, and tailings ponds” used in, or to be used in, or resulting from the work of extracting 

minerals, as well as “lands, excavations, underground passageways, shafts, slopes, tunnels and 

workings, structures, facilities, equipment, machines, tools, or other property including 

impoundments, retention dams, and tailings ponds” where minerals are milled or prepared. Here, 

although there was no extraction at the Fairland Plant, there was “milling.” 

Based on the above analysis, I find that the lack of an extraction site, on, adjacent to, or 

appurtenant to the Fairland Plant is not fatal to MHSA’s assertion of jurisdiction over the facility. 

Do the products of the Fairland Plant enter commerce or the operation or products of 

the Fairland Plant affect commerce?

The Secretary asserts that the products of the Fairland Plant affect interstate commerce 

and beyond because, according to Carson, they are sold “across North America and occasionally 

the Far East.” Sec’y Br. 10. Cactus Canyon argues that because the dimension stone delivered 

to, and processed at, the Fairland Plant already entered commerce, the facility cannot be subject 

to Mine Act jurisdiction. CC Br. 3

The Commission has recognized that “[b]ecause Congress, in the Mine Act, intended to 

exercise the full reach of its authority under the Commerce Clause, the Secretary has a minimal 

burden to show that . . .[a mine’s] operations or products affect interstate commerce.” Jerry Ike 

Harless Towing, Inc. and Harless Inc., 16 FMSHRC 683 (Apr. 1994); State of AK Dept.of 

Transp., 36 FMSHRC 2642, 2645 (Oct. 2014). 

I find that the Fairland Plant’s products affect “commerce” as that term is used in the 

Act.23 Carson testified at hearing that Cactus Canyon sells terrazzo stone produced at the 

Fairland Plant “across North America and occasionally the Far East.” Tr. 147. I have already 

found that Cactus Canyon engaged in “milling.” In State of AK Dept.of Transp. the 

Commission stated that “any mining or milling that an entity engages in for its own use 

constitutes ‘commerce’ under section 4 of the Mine Act.” 36 FMSHRC at 2645. Here, Cactus 

Canyon not only engaged in milling, but also sold milled products “across North America” and 

other places. The Act’s definition of “commerce” includes “trade . . . between a place in a 

22 Neither subsection (A) or (B) are at issue in the instant proceeding. As a result, my analysis 

and consideration of any locational element is restricted to subsection (C).

23 Section 3(b) of the Mine Act defines “commerce” as “trade, traffic, commerce, transportation, 

or communication among the several States, or between a place in a State and any place outside 

thereof, or within the District of Columbia or a possession of the United States, or between 

points in the same State but through a point outside thereof[.]” 30 U.S.C. § 802(b).
12

State and any place outside thereof[.]” 30 U.S.C. § 802(b). I find that Cactus Canyon’s sale of 

terrazzo stone produced at the Fairland Plant “affected commerce” under the Act.

Cactus Canyon’s argument that the Fairland Plant cannot be subject to Mine Act 

jurisdiction because the dimension stone had already entered commerce is unavailing.24 Mine 

Act jurisdiction covers not only mines’ whose products enter commerce, but also mine 

operations or products of those operations that affect commerce. Here, I found that the Fairland 

Plant’s products affected commerce. The fact that most of the stone used in the milling process 

was purchased on the open market does not negate MSHA jurisdiction. 

Finally, although not critical to my analysis, I note that Carson testified that “[t]oday 

we’ve only - - 10 percent of business, 15 percent of our business is something that we’ve mined 

ourselves.” Tr. 152. If Cactus Canyon is milling material that it mined, then it stands to reason 

that the material would not enter commerce until Cactus Canyon milled it and sold it as terrazzo 

stone. 

It must be noted that whether a facility is subject to Mine Act jurisdiction is factually 

dependent. I relied exclusively on the evidence presented at the hearing in this case. A change 

in a facility’s operations, or different evidence produced at a hearing, could alter the result. 

Having determined that the Fairland Plant’s products affect commerce, I find that the 

Secretary had jurisdiction to issue the citations discussed below, two which were issued for 

conditions observed in structures related to bagging the milled material, and one of which was 

issued for a condition observed in an onsite maintenance shop.25

24 In support of its argument, Cactus Canyon cites Herman v. Associated Elec. Coop., Inc., 172 

F.3d 1078 (8th Cir. 1998) for an apparent “bright line” rule for jurisdiction “based upon where 

the output of the mine was processed into a marketable form.” CC Br. 12-13. There MSHA was 

found to not have jurisdiction over an electric utility plant that bought crushed coal, then further 

crushed the coal and removed debris before burning it in its generator. However, the facts of that 

case are distinguishable from the case at hand. Unlike the Fairland Plant, the utility plant in 

Herman was not “in the business of selling a raw or processed mineral product. An electric 

utility sells electricity. The coal was used as an end product at the plant, and hence the utility was 

the final consumer of the coal.” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 592–93 (5th 

Cir. 2000). Here, Cactus Canyon was “in the business of processing, or as MSHA claims, 

‘milling,’ a mineral product for sale to others” in the form of terrazzo stone. Id. The final 

product in this case is not the terrazzo stone made at the facility but rather the terrazzo flooring is 

constructed elsewhere.

25 Carson argues that the citations were issued in areas that have “no relationship in time, in 

function, or in location to any ‘Working Place’ or ‘Mill.’” CC. Br. 14, 15, 17. However, both the 

Mine Act and Interagency Agreement state that the Secretary “shall give due consideration to the 

convenience of administration resulting from the delegation to on 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), 44 Fed. Reg. at 22828. Here, the bagging and 

maintenance structures where the citations were issued were at the same physical establishment 
13

III. CITATIONS AT ISSUE

a. Citation No. 9643093

On July 27, 2021, MSHA Inspector Hurtado issued Citation No. 9643093 under section 

104(a) of the Mine Act for an alleged violation of section 56.12004 of the Secretary’s safety 

standards, which states, in pertinent part, that [e]lectrical conductors exposed to mechanical 

damage shall be protected.” 30 C.F.R. § 56.12004. The citation alleges:

The power cables for the Inside Bagging Belt reverse switch had 

cracks in the outer jacket. The inner conductors were visible and 

exposed to damage. The switch is located near the bagging station 

that is operated by miners. The switch is used as needed during 

normal operations. This exposed miners using the switch to an 

electrical hazard and electrocution injuries from damage to the 

conductors. 

Hurtado determined that an injury or illness was unlikely to occur but any injury could 

reasonably be expected to be fatal. He designated the violation as not being significant and 

substantial (“S&S”), one person would be affected, and the violation was the result of Cactus 

Canyon’s moderate negligence. The Secretary proposed a civil penalty in the amount of $125.00. 

Summary of Evidence

Inspector Hurtado testified about the conditions he observed and the reason why he 

determined that an injury was unlikely. He said that although the outer jackets on the two power 

cables had cracks in them, the insulation surrounding the conductors inside the cables was not 

damaged with the result that the copper wires were not exposed. Tr. 27, 44. Nevertheless, he 

believed that the insulated conductors were exposed to mechanical damage because of the cracks 

he observed in the outer jackets for both cables. Tr. 27-28. He determined that the condition 

could result in a fatal accident as the current in the conductors was 220 volts. Tr. 28. The 

inspector testified that these cracks must have developed over time and were caused by vibration 

and the stress placed on the outer jacket at the cited location. Tr. 57-58, 91, 100-01. Any miner 

who operates the bagging machine was exposed to the hazard because the cracks in the outer 

jacket were near the operating controls for the bagging unit. Tr. 35. Inspector Hurtado took 

photos of the condition he observed, and the Secretary relied on these photos as part of his proof 

of a violation. Ex. 6.

Inspector Hurtado further testified that “mechanical damage” is any damage to which a 

cable could be exposed including environmental damage. Tr. 84. In the area where the cited 

cracks were present there was no protection for the insulated conductors. Tr. 90. In addition, the 

cracks in the outer jacket would likely get larger over time because of the stress on the cables. 

He said that it was a matter of time before the insulation surrounding the copper wires would 

as the crushing plants and screens that were used for milling, i.e., the Fairland Plant. The 

Fairland Plant is located on one integrated piece of property. Ex. G
14

also crack thereby exposing the copper wires. Tr. 93. If the cables vibrate when the bagging 

machine is operating, the cracks in the outer jacker could develop more quickly. Tr. 101. The 

cited condition was abated when Cactus Canyon installed new cables. 

Carson testified that because no copper was showing, the Secretary failed to show that 

any hazard was present. Tr. 160. In addition, because it would be difficult for anyone to get 

their fingers inside the cracks, no hazard was present. Id.

Analysis

A “conductor” is defined as “a material, usually in the form of a wire, cable, or bus bar, 

capable of carrying an electric current.” 30 C.F.R. § 56.2. The language of the safety standard 

was designed to ensure that mines protect electrical conductors in locations where they are 

exposed to mechanical damage. Installing an electrical cable with an outer jacket meets the 

requirements of this standard. In this instance, Cactus Canyon installed two electrical cables that 

included an outer jacket that protected the inner electrical conductors from mechanical damage. 

Thus, when the cables were installed, Cactus Canyon met the requirements of the safety 

standard. I find that the evidence establishes that the cracks in the outer jacket of two cables had 

developed over time and that, more than likely, the cracks were created because the cables were 

bent at very extreme angle at the location of the cracks.26 The cables appear in the photos to be 

bent to an angle of about 90 degrees. Ex. 6. This put the cables under stress and subject to 

slowly developing damage.

The issue is whether the cracks in outer jackets of electrical cables violated the safety 

standard. The standard requires that electrical conductors that are “exposed to mechanical 

damage” be protected. As a consequence, in order to meet his burden of proof for section 

56.12004, the Secretary must establish that the cited cables were exposed to mechanical damage. 

For the reasons set forth below, I find that the Secretary met this burden. 

The cracks in the outer jackets developed as a result of the environment where the cables 

were installed. It is not clear how long the cables had been in use, but I find that the evidence 

establishes that the cracks in the outer jacket had been developing for some time rather than from 

a sudden event. Nothing in the safety standard suggests that the damage that a conductor could 

be exposed to must be the result of blunt force in order for the standard to apply. These cracks 

exposed the inner insulated conductors to further environmental damage. The bagging room can 

get dusty. Dust and dirt can cause further degradation to the outer jacket and the inner 

conductors. In addition, it is likely that, if the condition was not abated, the cracks would expand 

thereby increasing the exposure of the insulated conductors to damage. 

26 The Secretary argues that the cited condition could have been caused by vibrations, but it is 

not clear that the cables were, in fact, subject to vibrations. The inspector never observed the 

bagging unit in operation and when asked if either cable vibrates when the bagging unit was in 

use, he simply replied “[i]t could.” Tr. 93-94. 
15

In Northern Illinois Service Co., 36 FMSHRC 2811, 2818 (Nov. 2014) (ALJ), the outer 

jacket of an electrical cable was torn for about a half of an inch exposing the inner insulated 

conductors. The power cable was located in an outdoor area. The inspector determined that the 

“breach in the cable’s outer jacket exposed the inner electrical conductors to possible mechanical 

damage such as ‘equipment, material, weather, and UV radiation.’” Id. Based on this evidence, 

the administrative law judge affirmed the citation and determined that “[a]ssuming normal and 

continuing mining operations, even factoring in the twenty-five or less production days during a 

normal work year, it is reasonably likely the breach in the outer insulation would cause the 

insulation on the inner conductors to fail due to the effects of weathering and/or friction.” Id. at 

2819. 

In Knock’s Building Supplies, 20 FMSHRC 535, 546-47 (May 1998) (ALJ), the judge 

determined that a violation existed where the inner conductors of a power cord were exposed due 

to cracks in the cord’s “mechanical protection.” Although the operator argued that there was no 

violation because the inner wires were still insulated, the Judge determined that this argument 

may be relevant in evaluating whether a violation is S&S but not in determining whether there 

was a violation of the safety standard. 27

Consistent with these decisions, I find that the Secretary established a non-S&S violation 

of section 56.12004. The violation was unlikely to result in an injury. Inspector Hurtado 

determined that if a miner was injured as a result of this violation, it could reasonably be 

expected to be fatal because the cables carried 220 volts. Tr. 111. I find his analysis on this issue 

to be superficial. Many factors must be considered when determining whether an electrical 

violation could reasonably be expected to cause a fatality, not just the voltage. Given that the 

cracks were quite narrow and difficult to reach, I find that the gravity of the violation was low. I 

affirm the inspector’s determination that the violation was the result of Cactus Canyon’s 

moderate negligence because the violative condition was in plain sight. A penalty of $125.00 is 

appropriate. 

b. Citation No. 9643094

Citation No. 9643094, issued under section 104(a) of the Mine Act on July 27, 2021, also 

alleges a violation of Section 56.12004. The Condition or Practice section of the citation states, 

in pertinent part, as follows:

The power cable for the 120 volt outlet in the Dust/ Fines Bagging 

Room was not attached to the fitting at the outlet box. This exposed 

the inner conductors to damage from not having protection from the 

outer jacket secured to the fitting. Damage to the conductors can 

cause an electrical hazard and expose a miner working in the 

27 In Northern Aggregate Inc., 37 FMSHRC 562, 574, 581-83 (March 2015) (ALJ), a judge 

vacated a citation alleging a violation of section 56.12004 on the basis that the conductor was not 

exposed to mechanical damage due to its location but affirmed a different citation alleging a 

violation of the standard on the basis that the conductor was exposed to damage. 
16

bagging room to electric shock or burn injuries. The bagging room 

outlet is used as needed.

Inspector Hurtado determined that an injury was unlikely to be sustained, but that if an injury 

were sustained it could reasonably be expected to result in lost workdays or restricted duty. He 

further determined that the condition was non-S&S, affected one person, and was the result of 

the operator’s moderate negligence. The Secretary proposed a penalty of $125.00 for this 

alleged violation.

Summary of Evidence

Inspector Hurtado testified that he observed the condition when he examined the 110-volt 

outlet box. Tr. 41. He took photos which show the conditions he cited. Ex. 7. He testified that 

the power cable for the outlet was not properly attached to the fitting at the outlet, which exposed 

the inner conductors to mechanical damage. Tr. 37-39. He stated that this violation exposed 

anyone using the outlet to a hazard of electrical shock. Inspector Hurtado assumed that the 

condition had existed for “some time” after something pulled on the wire. Tr. 105. He admitted 

that no copper wires were exposed and that the gap from the fitting to where the outer jacket 

began was small. Tr. 103-04. 

Carson testified that section 56.12008 should have been cited, which requires that 

“(p)ower wires and cables shall be insulated adequately where they pass into or out of electrical 

compartments.” He also stated that the outlet was in an area that was rarely used and a long 

distance from active operations. Tr. 164. There was still fabric surrounding the insulated wires 

in the power cord. Tr. 163. He cannot recall anyone ever using the outlet. Finally, he testified 

that the electrical cables in the cited area would not be exposed to any mechanical damage. 

Analysis

I find that the Secretary established a non-S&S violation. Only a small part of the jacket 

for the power cord was not under the clamp on the outlet. Ex. 7. The insulation on the 

conductors was still present. The condition may have existed when the outlet was initially 

installed or the power cord could have been pulled out of the clamp at some point. Whether the 

power cord was subject to mechanical damage is a close question. After exiting the outlet, the 

power cord ran inside a channel on what Carson called a “purlin.” Tr. 107; Ex 7 p. 2. Given its 

location resting inside a channel it is hard to envision how anything could pull on the power cord 

to cause additional mechanical damage. Nevertheless, as with the previous citation, 

environmental conditions could further damage the exposed area of the power cord, thereby 

creating a hazard. If the insulation surrounding the individual wires were to degrade, someone 

could be exposed to an electric shock hazard when using the outlet. I find that this violation was 

not serious because the events necessary to actually expose anyone to a hazard were unlikely.28 

I find that it was unlikely that the violation would result in an injury and that any injury 

would most likely not be serious. I credit the testimony of Carson that this outlet was rarely, if 

28 I agree with Carson that section 56.12008 is more applicable to the condition cited.
17

ever, used. I also find that the cited condition was not easy to see. As a consequence, I find that

Cactus Canyon’s negligence was low. A civil penalty of $125.00 is appropriate. 

c. Citation No. 9643095

Citation No. 9643095, issued under section 104(a) of the Mine Act on July 27, 2021, 

alleges a violation of Section 56.12019 of the Secretary’s safety standards, which requires that 

“[w]here access is necessary, suitable clearance shall be provided at stationary electrical 

equipment or switchgear.” 30 C.F.R. § 56.12019. The Condition or Practice section of the 

citation states, in pertinent part, as follows:

Suitable clearance to the breaker box located in the rear-left corner 

of the maintenance shop was not maintained. The access to the 

breaker box was blocked with welding machines, utility cart, and 

buckets. The breaker box provides power to the shop. This exposed 

a miner to electric short or burns should an electrical hazard occur 

and not being able to access the breaker box to de-energize power. 

The shop is used daily.

Inspector Hurtado determined that an injury was unlikely to be sustained, but that if an injury 

were sustained it could reasonably be expected to result in lost workdays or restricted duty. He 

further determined that the condition was non-S&S, affected one person, and was the result of 

the operator’s moderate negligence. The Secretary proposed a penalty of $125.00 for this 

alleged violation.

Summary of Evidence

When Inspector Hurtado entered in the maintenance shop, he observed that there was “no 

suitable clearance to the breaker box . . . that’s mounted on the wall in the rear left corner.” Tr. 

48. He testified that there were portable welder units, miscellaneous parts, boxes, buckets and 

carts blocking access to the breaker box. Tr. 48-49. He referenced the photograph he took in the 

maintenance shop to illustrate the conditions he observed. Ex. 8 p. 1. The photo clearly shows 

that an employee would have a difficult time reaching the cited breaker box. 

On cross examination, the inspector testified that the breaker box was electrical 

equipment that was subject to the requirement of the safety standard. Tr. 116-17. He believed 

that the circuit breakers in the breaker box controlled power for lighting and outlets used for 

welders. Tr. 118. He stated that anyone operating a welder who encountered a problem would 

first attempt to switch it off and unplug it from the outlet, but that a situation could arise where 

the safest option would be to switch it off at the breaker box. Tr. 119-21, 131. He determined 

that an injury was unlikely because there were several ways to deenergize a welder in the shop.

Carson testified that a breaker box is not electrical equipment because it is not the end 

user of the power being supplied. Tr. 165-66. In its brief, Cactus Canyon argues that it is 

“unsupported nonsense to urge equivalence.” CC. Br. 17. It also argues that the inspector 

“could not identify any reasonable circumstances where anyone using plugged-in equipment 
18

would not first disengage (let go of the trigger), then unplug a welder instead of running across 

the room to throw a breaker.” CC Br. 17-18.

Analysis

Although the Commission has not addressed section 56.12019, at least one Commission 

judge has done so. In VT Unfading Green Slate Co. Inc., 23 FMSHRC 310 (Mar. 2001) (ALJ) a 

judge affirmed a violation of 56.12019 where an inspector testified that a truck tire, cardboard 

boxes and pallets prevented access to electrical panel boxes in a storage shed. 

I find that the Secretary established a non-S&S violation of section 56.12019. It would 

have been difficult to reach the breaker box without tripping or falling. Indeed, the evidence 

shows it would have been impossible to reach the breaker box without first moving pieces of 

equipment. Ex. 8 p. 1. Circuit breakers serve to stop the flow of electrical current in the event of 

an overload or short circuit. The Secretary’s regulations do not define the term “switchgear.” 

However, dictionaries, as well as other sources, make clear that “switchgear” includes circuit 

breakers and other types of electrical devices that serve to switch, interrupt, control, meter, 

protect, and regulate the flow of electricity. See e.g. DMMRT 557 (2d ed. 1997). Although the 

inspector apparently viewed the breaker box as a piece of stationary “electrical equipment,” I 

need not determine whether that characterization was correct given that the breaker box was 

quite clearly “switchgear.” 

The fact that there were other means to deenergize electrical equipment in the shop 

relates to the gravity of the violation. Even assuming that gaining access to the breaker box 

would not typically be necessary in an emergency, having the area clear provided an extra 

measure of safety in the event that immediate access to the breaker box was necessary. It has 

long been held that safety standards should be interpreted to maximize the safety of miners. I 

also find that the violation was unlikely to result in an injury and that any injury would, at most, 

lead to lost workdays or restricted duty. I affirm the inspector’s determination that the violation 

was the result of Cactus Canyon’s moderate negligence because the violation was obvious. A 

penalty of $125.00 is appropriate. 

IV. CIVIL PENALTIES

I determined an appropriate penalty for each violation taking into consideration the 

provisions of sections 110(i) and 110(k) of the Mine Act. My findings with respect to gravity 

and negligence are discussed above. Cactus Canyon has a history of six paid citations in the 18 

months preceding the July 2021 inspection. Ex. 1. The parties did not present evidence as to 

Cactus Canyon’s size but Exhibit A to the penalty petition indicates that it was assigned 3 penalty 

points for the size criterion, which correlates with a small metal/nonmetal mine operator. 30 

C.F.R. § 100.3 Table III. The penalties I assess will not affect Cactus Canyon’s ability to 

continue in business. Based on the penalty criteria I assess a total penalty of $375.00. The 

Secretary proposed the minimum penalty for each citation. See 30 C.F.R. § 100.3(g), Table XIV 

(2021) (Considering the 10% good faith abatement reduction). Given the low penalties, a 

penalty reduction for Citation No. 9643094 is not appropriate.
19 

V. ORDER

For reasons set forth above, I find that milling occurs at the Fairland Plant with the result 

that it is subject to Mine Act jurisdiction. Citation No. 9643093 is AFFIRMED as issued. 

Citation No. 9643094 is MODIFIED to reduce the negligence but otherwise AFFIRMED as 

issued. Citation No. 9643095 is AFFIRMED as issued. Cactus Canyon is ORDERED TO 

PAY the Secretary of Labor the sum of $375.00 within 40 days of the date of this decision.29

 

Distribution:

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

Suite 501, Dallas, TX., 75202, Email: (Marquez.Felix.R@Dol.gov) 

Andy Carson, Esq., Cactus Canyon Quarries, 7232 CR 120, Marble Falls, TX 78654 

(acarsonmarblefalls@aol.com) 

29 Payment (check or money orders) should be sent to U.S. Department of Labor, Mine Safety 

and Health Administration, Payment Office, P.O. Box 790390, St. Louis, MO. 63179-0390; 

Electronic payments can be applied via https://www.pay.gov/public/form/start/67564508

Please include Docket Number & A.C. Numbers with payment. 

Richard W. Manning

Administrative Law Judge