**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE.,N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

#  

| MINERAL MANUFACTURING CORP.,
                            Contestant,

 

                        v.

 

 

SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH

ADMINISTRATION,  MSHA,

                            Respondent

 

 

SECRETARY  OF LABOR, U.S. DEPARTMENT OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION  (MSHA), 

                 Petitioner 

 

              v.

 

MINERAL  MANUFACTURING CORP., 

                   Respondent                                                                                                                      |   |   | CONTEST  PROCEEDINGS

 

Docket  No. SE 2023-0185 

Citation  No. 9701784; 04/11/2023

 

Docket  No. SE 2023-0186 

Citation  No. 9701785; 04/11/2023

 

 

Mine: Eufaula Plant

Mine  ID: 01-03237 

 

 

CIVIL  PENALTY PROCEEDINGS

 

Docket  No. SE 2023-0191

A.C.  No. 01-03237-576247

 

Docket  No. SE 2023-0203

A.C.  No. 01-03237-578487

 

Mine:  Eufaula Plant |
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**DECISION ONJURISDICTION**

** **

            Before the Court are theparties’ cross-motions for summary decision on jurisdiction.[1] For the reasons which follow, the Court finds that MSHA has jurisdiction over MineralManufacturing Corporation’s Eufaula Plant. The only genuine jurisdictionalcontention in this matter is whether the Eufaula Plant is engaged in milling. Ifmilling is occurring, then it is *ultimately, solely, and finally* up toMSHA and OSHA, not the regulated entity, to make the determination betweenthemselves which entity will have jurisdiction over the milling activity.

 

            For the reasons which follow,the Court finds that the Eufaula Plant performs milling of kaolin clay, andthat it is not a ceramics manufacturing plant, and as such, per the Secretaryof Labor’s determination, it is under the jurisdiction of the Mine Safety andHealth Administration. **Setting the Table; the Agreed-Upon Facts**

** **

THESECRETARY OF LABOR’S STATEMENT OF RELEVANT UNDISPUTED FACTS:

 

1.         MineralManufacturing Corporation (MMC) owns and operates the Eufaula Plant located at50 Harbison Walker Road, Eufaula, Alabama.

2.         MMCdoes not engage in mineral extraction at the property where the Eufaula Plantis located.

3.         MMCpurchases and processes alumina clay from multiple vendors/mines located inGeorgia and Alabama, one of which, the Fleming Pit Facility, was recentlyacquired by MMC.

4.         All ofthe employees at the Fleming Pit facility are MMC employees.

5.         MMC engagesin kaolin clay extraction at pit sites in the Barbour and Henry County areaswhere MMC owns mineral rights or has permits pending, but these pits are notlocated on the same property as the worksite at issue in this case.

6.         Thekaolin clay contains varying amounts of alumina.

7.         Thepurchased clay is brought to the Eufaula plant by truck and dumped on theEufaula plant property.

**8.         Asneeded for processing, clay is picked up by loader and run through a crusher.**

**9.         Afterthe initial blending with other clays to reach the desired alumina content, theclay is run through a crusher.**

**10.       Crushedand blended clay is transferred by loader to an extrusion operation to furtherreduce particle size and produce a smoother material.**

**11.       Thematerial is fed into a pug sealer mixer where water is added to reach a 16 –18% moisture content.**

**12.      Thematerial is fed into a second pug sealer mixer and then into an extruder whichcompresses the alumina clay into a noodle type shape.**

**13.       Thematerial is taken from the extruder by loader and conveyor belt and loaded intoa rotary kiln.**

**14.       The kilnheats the material temperatures between 2850 and 3100 degrees F.**

**15.       The veryhigh temperature in the kiln causes a chemical reaction with the alumina clay,producing the ceramic material Mullite.**

**16.       Mulliteis primarily produced synthetically through applying heat and other processesto alumina clay to produce the ceramic material.**

**17.       TheMullite produced by MMC is mostly sold for use as refractory material for usein the manufacturing of finished products.**

**18.       MMCsells its ceramic mullite product as “kiln run” and also crushes and sizesmullite after kiln treatment and before shipment, according to customer needs.**

19.       Mulliteis shipped in bulk by dump truck or packaged in bulk bags for shipment tocustomers.

20.       OSHA andMSHA have entered into an agreement to delineate certain areas of authority,set forth factors regarding determinations relating to convenience ofadministration, provide a procedure for determining general jurisdictionalquestions, and provide for coordination between MSHA and OSHA in all areas ofmutual interest. The parties have stipulated to the authenticity of thisdocument, and the agreement is attached as Exhibit C.

21.       MMCoperates a ceramics manufacturing plant in Pennsylvania which further processesceramic mullite from its ceramics plant in Eufaula, Alabama (Eufaula Plant).

22.       ThePennsylvania ceramics plant has always been under OSHA jurisdiction.

 

Petitioner, Acting Secretary of Labor’sMotion for Summary Decision on Jurisdiction (“Sec’s Motion”) at 3-5, (emphasisadded).

 

 RespondentMineral Manufacturing Corporation’s “Partial Motion for Summary Decision on theIssue of Jurisdiction” (“Respondent’s Motion”) is identical to the Sec’sMotion. Respondent’s Motion at 2-4.[2]

 

**TheSummary Judgment Standard**

 

            As Respondent notes, “CommissionProcedural Rule 67 provides that summary decision is appropriately granted when“the entire record ... shows (1) That there is no genuine issue as to anymaterial fact; and (2) That the moving party is entitled to summary decision asa matter of law.” 29 C.F.R.§ 2700.67 (b). Respondent’s Motion at 4. The Courtfinds that both elements are present in this matter.

 

**TheApplicable Statutory Provision**

** **

**The Mine Act, at 30U.S. Code § 802 – Definitions, provides “For the purpose of this chapter,the term - ... “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chapter, the Secretary*[3]**[of Labor or his delegate]*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. Code § 802(h)(1) (emphasis added).

 

** **

**TheParties’ Arguments, with the Court’s Analysis**[4]****

** **

** **

** **

**TheSecretary of Labor’s Contentions**

** **

As the Secretary points out, the Mine Act’s definition of a “coal orother mine” is very broad, to wit, 30 U.S.C. §802(h)(1), as truncated and highlighted by the Court for the relevantlanguage, defines a “coal or other mine” as:

 

(A) an area ofland from which minerals are extracted . . . , (B) private ways and roadsappurtenant to such area, and (C) lands, excavations, underground passageways,shafts,slopes,tunnelsandworkings,structures,facilities,equipment,machines, tools, or other property . . . used in, or to be used in, **orresulting from, the work of extracting such minerals . . . , 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 mineralmillingforpurposesofthisAct,theSecretaryshallgivedueconsideration totheconvenienceofadministrationresultingfromthedelegationtooneAssistant Secretary ofall authority with respect tothe health and safety of miners employedat one physical establishment.**

 

30U.S.C. § 802(h)(1) (pertinent language emphasized by this Court).

 

            TheSecretary notes that:

The Mine Act doesnot define the term “milling” but gives the ActingSecretary the authority to make “a determination of what constitutes mineralmilling.” 30 U.S.C. § 802(h)(1). The Interagency Agreement identifies“milling” as an area within MSHA’s regulatory authority and defines milling toinclude the processes of “sizing” and “drying.” *See* 44 Fed. Reg. at22829. According to Appendix A of the Interagency Agreement, milling is theprocess of separating valuable minerals from worthless material or “treatingthe crude crust of the earth to produce therefrom the primary consumerderivatives.” 44 Fed. Reg. at 22829. 

 

Sec. Motion at 9.

 

            The Court holds that theSecretary is clearly correct on this score – the Mine Act gives *the Secretary*the authority to make “a determination of what constitutes mineral milling.” 30U.S.C. § 802(h)(1). The Act’s use, in 30 U.S.C. § 802(h)(1), regarding “makinga determination of what constitutes milling for purposes of [the Mine Act]”vests that determination in the Secretary of Labor alone. That language doesnot suggest the determination is shared, collaboratively or otherwise, withmine operators. That authority results in a**determination, *by theSecretary*, of whether the activity in question constitutes milling. 

 

            As the Secretary notes,Appendix A of the Interagency Agreement provides that: 

 

milling includesone or more of the following processes: “crushing, grinding, pulverizing,sizing, concentrating, washing, drying, roasting, pelletizing,” [that] “crushing” is defined as “the process used to reducethe size of mined materials into smaller, relatively coarse particles. Crushingmay be done in one or more stages, usually preparatory for the sequential stageof grinding, when concentration of ore is involved,” [that] ... “sizing” isdefined as “the process of separating particles of mixed sizes into groups ofparticles of all the same size, or into groups in which particles range betweenmaximum and minimum sizes[,]” [that] ... “pulverizing” [is defined] as “theprocess whereby mined products are reduced to fine particles, such as to dustor powder size [,]” [and that] “kiln treatment” is defined as “the process ofroasting, calcining, drying, evaporating, and otherwise upgrading mineralproducts through the application of heat.”

 

Sec. Motion at 9-10.

 

            Using that InteragencyAgreement as its guidepost, the Secretary contends that MMC engages in millingby crushing, pulverizing, sizing, and kiln treating kaolin clay. Jt. Stip. 8-10,14-16. Those cited stipulations, the Court observes, admit that the clay is runthrough a crusher, then subjected to an extrusion operation to further reduceparticle size and produce a smoother material, then subsequently loaded into arotary kiln for the purpose of heating the material, which process causes achemical reaction with the alumina clay, with the result of producing theceramic material Mullite. *Id.*

* *

**Thus, the product,Mullite, is produced by the steps described above to produce the ceramic material.*Id*. at 15. These described, stipulated, processes clearly fit within theInteragency Agreement as they include crushing, reducing the size of the clay,and heating the material. *Id*. at 10.  

 

            As noted in*Donoho Clay*, 3 FMSHRC 2381 (Oct. 1981)(ALJ), on March 29, 1979, the agreement between OSHA and MESA was superseded byan “MSHA-OSHA Interagency Agreement,” which recognized the Secretary’s dualenforcement role and the continuity of enforcement principles of the earlieragreement.

 

            Section A (3) of theInteragency Agreement explains its purpose and general principles as follows:

 

Thisagreement is entered into to set forth the general principle and specificprocedures which will guide MSHA and OSHA. The agreement will also serve asguidance to employers and employees in the affected industries in determiningthe jurisdiction of the two statutes involved. The general principle is that asto unsafe and unhealthful working conditions on mine sites and in milling operations,the Secretary will apply the provisions of the Mine Act and standardspromulgated thereunder to eliminate those conditions. However, where theprovisions of the Mine Act either do not cover or do not otherwise apply tooccupational safety and health hazards on mine or mill sites (e.g., hospitalson mite sites) or where there is statutory coverage under the Mine Act butthere exist no MSHA standards applicable to particular working conditions onsuch sites, then the OSH Act will be applied to those working conditions. Also,if an employer has control of the working conditions on the mine site ormilling operation and such employer is neither a mine operator nor anindependent contractor subject to the Mine Act, the OSH Act may be applied tosuch an employer where the application of the OSH Act would, in such a case,provide a more effective remedy than citing as a mine operator or anindependent contractor subject to the Mine Act who does not, in suchcircumstances, have direct control over the working conditions.

 

The legislativehistory of the Mine Act indicates a Congressional intent to resolvejurisdictional doubts in favor of coverage under the statute. The Report of theSenate Committee on Human Resources states:

 

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 this Act be given the broadest possibly [sic]interpretation, and it is the intent of this Committee that doubts be resolvedin favor of inclusion of a facility within the coverage of the Act.

 

S. Rep. No. 95-181,95th Cong., 1st Sess. 14 (1977), reprintedin, LegislativeHistory of the Federal Mine Safety and Health Act of 1977 at 602 (1978).Section B(5) of the Interagency Agreement recognizes the Congress’ intent thatdoubts be resolved in favor of coverage under the Mine Act.

 

*Donoho* at 2383-2384.

 

            TheCourt agrees with the Secretary’s summary that:

 

MMC runs itsblended clay through a crusher before transferring the clay by loader to anextrusion operation to further reduce particle size and produce a smoothermaterial. Jt. Stip. 9-10. MMC’s kiln treatment of clay to remove water andmoisture satisfies the Interagency Agreement’s definition of milling becausethe treatment is integral to and part of the numerous other milling processesthat occur at the property, with the kiln treatment occurring midway throughthe milling cycle and bookended by various crushing processes. Jt. Stip. 8-10;13-15; 18. Regarding sizing, MMC sizes the material into various sizes, usingscreens to obtain desired product dimensions. Jt. Stip. 18.

 

Like the operationin*Donoho*, MMC is a clay plant that relies primarily on millingprocesses to create its final product, synthetic mullite. Jt. Stip. 8-10,14-16; 18. The mullite is a “primary consumer derivative” produced by millingkaolin clay into marketable for use in numerous refractory applications andindustries but is not a finished ceramic product. 44 Fed. Reg. at 22,829.Rather, MMC’s mullite is raw material sold in loose, bagged form and used byMMC’s customers to fashion ceramic products. Jt. Stip. 19.

 

Sec. Motion at 10.

 

 

**The Issue of Commerce**

** **

As theSecretary remarks: 

 

For MSHA to exertjurisdiction over MMC, the evidence must show not only that MMC is a “coal orother mine” under the Mine Act but also that MMC’s products enter commerce orits operations affect commerce. *Cactus Canyon*, 45 FMSHRC at 394. UnderSection 3(b) of the Mine Act, 30 U.S.C. § 802(b), commerce is defined 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[.]

 

MMC argues thatits process for milling clay does not fall under the definition of milling forthe purpose of MSHA jurisdiction because the clay already entered commerce.This Court[5]has determined that a mine can be subject to MSHA jurisdiction even if theproduct the mine mills “was purchased on the open market.” *Cactus Canyon*,45 FMSHRC at 395. The Acting Secretary argues that the same reasoning shouldapply to MMC.

 

MMC has sold itsmullite to refractory companies to be used in the manufacturing of finishedproducts. Jt. Stip. 17. Given these facts, MMC’s operations affect commerce,and its products enter commerce*. See Cactus Canyon*, 45 FMSHRC at 394-395.

 

*Id.* at 11.

 

            TheCourt finds that MMC’s operations the Eufaula Plant constitute commerce.

 

** **

**This Matter, that is Whether theRespondent’s Eufaula Plant is Subject to MSHA’s Jurisdiction, has Been Decided Before.**

 

            The Secretary notes that this Courtdetermined MSHA has jurisdiction over MMC’s Eufaula Plant in 2011. This will bediscussed below. 

 

 

 

 

 

            The Court agrees with theSecretary’s observations that Section 3(h)(1)(C) ofthe Mine Act grants the Acting Secretary discretion to determine whatconstitutes milling, which discretion is granted deference both by theCommission[6]and the Courts, stating:

 

Here,there are no genuine issues of material fact regarding how MMC produces mullitethat would support Respondent’s position that MMC should be under OSHAjurisdiction. However, even in close cases, the Mine Act grants the authorityto define the term milling to the Acting Secretary, and not to the ALJ or theCommission. 30 U.S.C. § 802(h)(1); *see also Carolina Stalite Co*. at 1551(stating that the language of 802(3)(h)(1) gives the Acting Secretarydiscretion, within reason, to determine what constitutes mineral milling andthat determining what constitutes milling is “just the sort of determinationthe Secretary was empowered by Congress to make.”

 

Here,the Acting Secretary determined that the activity at MMC’s Eufaula Plantconstitutes mineral milling within the authority of MSHA. The ActingSecretary's determination must be given the deference it is entitled to underthe law. *Carolina Stalite*, 734 F.2d at 1551-53; *see also, In reKaiser Aluminum and Chemical Co*., 214 F.3d 586, 591 (5th Cir. 2000) (“*KaiserAluminum*”) (finding the Secretary should be given *Chevron* deferencewhen determining what processes constitute milling); *Sec’y of Lab., MineSafety & Health Admin. v. Nat'l Cement Co. of Cali*., 494 F.3d 1066(D.C. Cir. 2007) (finding that ‘the Secretary's interpretation of the law mustbe given weight by both the Commission and the courts’ (quoting*Sec’y ofLabor v. Excel Mining, LLC*, 334 F.3d 1, 5–6 (D.C. Cir. 2003) (quoting*Sec’y of Labor v. Cannelton Indus., Inc.*, 867 F.2d 1432, 1435 (D.C. Cir.1989) (quoting*S. Rep. No. 95–181, at 49 (1977),*U.S. Code Cong. &Admin. News 1977, pp. 3401, 3448). Here, the Acting Secretary’s decision thatMMC is a mine under the Mine Act because it is engaged in milling should beentitled to substantial deference because that decision was reasonable.

 

*Id.* at 12-13.

 

 

 

** **

**Deja Vu All Over Again**[7]****

** **

            As mentioned above, in 2011,MMC contested MSHA’s jurisdiction over the Eufaula Plant, and its motion for(ALJ Moran). 

 

            The Secretary points out, indenying MMC’s earlier motion: 

 

ALJMoran stated, “the Secretary, per the Mine Act, need only show that millingoccurs and that it has made the determination that MSHA should oversee thatactivity. Thus, the Contestant is not entitled to weigh in with its views overwhich entity, MSHA or OSHA, is the more appropriate overseer.” *Id*. at*5, footnote 8. Moreover, the Court recognized the Mine Act’s expansivejurisdictional provision stating, “. . . the case law has been well establishedthat Congress’ definition of a mine is quite broad and not limited to classiclay understandings of that term. Beyond that, Congress expressly includedmilling activities within the [Mine] Act’s coverage.” *Id*. at *6. As theCourt held in 2011, the Act’s broad definition of the term “coal or other mine”and the Acting Secretary’s reasonable determination that MMC engages in millingare sufficient bases to demonstrate that MSHA’s exercise of jurisdiction overMMC’s Eufaula Plant is legally proper. 

 

Sec.Motion at 11-12.

 

            TheCourt reviewed its February 2011 decision denying Mineral Manufacturing’sMotion for summary decision and finds that it encompasses the issues raised inthe Respondent’s present Motion, which pertained to the same Eufaula Plant.  Asthis Court decided in its summary decision pertaining to this very mine, MMC’sEufaula Plant is within MSHA’s jurisdiction as it engages in milling. *MineralMfg. Corp. v. Sec. of Labor, Mine Safety and Health Administration*, 2011 WL13550393, (Feb. 2011). 

 

            Inthat 2011 decision, this Court also: 

 

[took] note thatthe interagency agreement allows for a resolution process when there is aquestion of jurisdiction between OSHA and MSHA. It states that “when anyquestion of jurisdiction between MSHA and OSHA arises, the appropriate MSHADistrict Manager and OSHA Regional Administrator or OSHA State Designee inthose States with approved plans shall attempt to resolve it at the local levelin accordance with this Memorandum and existing law and policy.” MSHA/OSHAInteragency Agreement, 44 Fed. Reg. 22,827 (Apr. 17, 1979), amended by 48 Fed.Reg. 7, 521 (Feb. 22, 1983). As advised by the interagency agreement, theDistrict Manager of MSHA's Metal/Non-Metal Southeastern District, Michael A.Davis, and the Regional Administrator of OSHA, Benjamin Ross, discussed onJanuary 21, 2011 the issue of whether MSHA or OSHA held proper jurisdictionover the Eufaula Plant. The jurisdictional issue was resolved in favor ofplacing the Eufaula Plant within the jurisdiction of MSHA. (Decl. of Michael A.Davis 4.) Although their determination is not binding upon this Court, itprovides persuasive guidance that the Eufaula Plant lands squarely within thejurisdiction of MSHA.

 

*MineralMfg. Corp*,2011 WL 13550393, at n. 9. 

 

 

**TheContentions of the Respondent, Mineral Manufacturing Corporation**[8]****

 

The Respondent’sargument section refers at the beginning to the definition of a mine. However,with that start, it avoids critical, adverse, language from that definition, droppingthe following key words from Congress that:

 

**In making adetermination of what constitutes mineral milling****for purposesof this Act, the Secretary shall give due consideration to the convenience ofadministration** resulting from the delegation to one Assistant Secretary ofall authority with respect to the health and safety of miners employed at onephysical establishment.

 

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

 

Respondent then citesto *Secretary of Labor v. Cranesville Aggregate Cos*., 878 F.3d 25 (2dCir. 2017) (“*Cranesville*”) as an example of a court rejecting MSHAjurisdiction, favoring OSHA jurisdiction. Looking to the Interagency Agreement,at Paragraph B.6, the Respondent contends that “certain types of facilities are*categorically covered* by each agency.” Respondent’s Motion at 8.(emphasis added). The Court does not consider *Cranesville*to beinstructive. As a start, the jurisdiction of the Second Circuit Court ofAppeals does not include Alabama. 

 

            More significantly, andironically, Cranesville was arguing *that MSHA* should have jurisdictionover the safety violations. 

 

            The case also providesa window into the mine’s understandable interest in having OSHA, not MSHA, havejurisdiction of the Eufaula Plant, as the Occupational Safety and Health ReviewCommission. In fact, the OSHA Administrative Law Judge (“ALJ”) vacated thecitations, finding that jurisdiction belonged to MSHA. The Second Circuitdetermined that the ALJ failed to give deference to the Secretary’sdetermination giving jurisdiction, *in this instance,*to OSHA for thismine’s bag plant. That Court noted that interagency Memorandum of Understanding(“MOU”) between OSHA and MSHA explains what constitutes a mine, and thereforesubject to MSHA regulation, and that the MOU defines “milling” as the art oftreating the crude crust of the earth to produce therefrom the primary consumerderivatives and that drying is included as milling. *Cranesville*at 29. 

 

            The Circuit recognizedthat though the MOU offers a list of mineral milling, it is a non-exhaustivelist. *Id.* And, it must be said, that *non-exhaustive list* providessome very important information, explaining it includes:

 

the processesconducted at the facility, the relation of all processes at the facility toeach other, the number of individuals employed in each process, and theexpertise and **enforcement capability of each agency with respect to thesafety and health hazards associated with all the processes conducted at thefacility**.

 

*Id.*(emphasisadded).

 

            The focus for thatdecision involved one product: sand. Critically, however, and a significantdistinguishing factor from this case, MMC’s Eufaula Plant, *the experts inthe Cranesville case, all agreed that the sand delivered to the Bag Plant was afinished product*. *Id*. at 31. 

 

            That is not the casehere as the Eufaula Plant is not dealing with a finished product. Again,ironically, Cranesville’s expert was asserting that the jurisdiction belongedto MSHA as “the drying process employed at the Bag Plant was similar to otherdrying operations which were found to make up part of the mining process andtherefore was subject to MSHA authority.” *Id*. 

 

            At the end of the day,OSHA’s jurisdiction was upheld by the Second Circuit by its determination that“the overall work at the Bag Plant was unrelated to the milling process.” *Id*.at 35. As that Court remarked, “because the Secretary has authority todistinguish between mining and non-mining activities for the purposes ofenforcement, when the Secretary reasonably applies a functional analysis, theSecretary’s determination as to which act governs is entitled to substantialdeference.” *Id*. at 36. Absent an unfounded, outlandish, determination bythe Secretary, which clearly did *not*occur here, the substantialdeference principle applies. 

 

            Although the Respondentinsists that the Eufaula Plant is a “ceramic plant,” the *label* that *itwishes to*applies is not determinative.[9]Instead, it is a functional analysis which is partnered with the Secretary’sbroad authority under 30 U.S.C. § 802(h)(1). This authority expressly confers *dueconsideration* to the convenience of administration in the Secretary’s determinationof what constitutes mineral milling in delegating to one Assistant Secretaryall authority with respect to the health and safety of miners employed at onephysical establishment.

 

** **

            TheCourt notes that in *Sec v. Drillex*, 16 FMSHRC 2391, (Dec. 1994), theCommission observed that the:

 

term “milling”includes processes by which minerals are made ready for use. *See DMMRT at706; Webster's Third New International Dictionary, Unabridged 1434 (1971).* TheInteragency Agreement further 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.

 

44 Fed. Reg. at22829. The Interagency Agreement includes “crushing,” “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*. Drillexcrushed stone into gabion and smaller particles and separated usable stone fromundesired contaminants. Therefore, Drillex engaged in milling. *See Donovanv. Carolina Stalite Co*., 734 F.2d 1547, 1551-54 (D.C. Cir. 1984).

*Drillex*at2395.

** **

**Conclusion:**

** **

**Mine Operators do not have aseat at the table when it comes to making a determination of what constitutesmineral milling for purposes of the Mine Act. Absent completely unfounded,irrational, reasons presented for such determinations, it is up to MSHA and OSHAto determine which entity exercises jurisdiction over their respective Acts.**

** **

**It bears repeating that Congresshas clearly spoken to this issue in Mine Act itself stating:**

** **

(B)   **In making adetermination of what constitutes mineral milling** for purposes ofthis chapter, **the Secretary** shall give due consideration to the **convenienceof administration** resulting from the delegation to one Assistant Secretaryof all authority with respect to the health and safety of miners employed atone physical establishment.

* *

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

 

            In sum, it may be said, theEufaula Plant is milling, still milling, after all these years, and therefore theCourt agrees with the Secretary that the Respondent’s claim that it does notengage in milling of the clay “is contrary to the Mine Act, authoritative guidanceon the issue of jurisdiction, and Commission case law interpreting this issue.”Sec. Motion at 13. 

 

 

 

            Considering the above, and inlight of the Joint Stipulated Facts, the Court finds there is no genuine issueof material fact, and that, as applied here, designating the activity atEufaula Plant as performing milling is reasonable and the Acting Secretary’sinterpretation here of the term “milling” is within the bounds of herdiscretion. Restated, it is not for a mine operator to redesignate thedescription of its operation, in this case calling it a “ceramic manufacturingplant” and, by employing that new nomenclature, carry the day, when the facts,here the stipulated facts, establish that the plant is engaged in milling. 

 

            Accordingly, the Court **GRANTS**the Acting Secretary’s Motion for Summary Decision on Jurisdiction, and entersthis **ORDER**, **AFFIRMING MSHA’s jurisdiction over the Respondent,Mineral Manufacturing Corporation’s Eufaula Plant.**

 

**SOORDERED.**

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative LawJudge

 

Distribution

 

AdeleL. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place,Suite D, Beltsville, MD 20705 (safetylawyer@gmail.com) 

 

JeanC. Abreu, Esq., Office of the Solicitor, U.S. Department of Labor, 61 ForsythStreet, S.W., Room 7T10, Atlanta, GA 30303 (abreu.jean.c@dol.gov) 

 

John O. Gainey,Esq., Office of the Solicitor, U. S. Department of Labor, 61 Forsyth Street,S.W. Room 7T10 Atlanta, GA 30303 (gainey.john.o@dol.gov)

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[1] The Court alsoconsidered the parties’ replies: Petitioner’s Opposition to MineralManufacturing Corporation’s Partial Motion for Summary Decision on the Issue ofJurisdiction and Mineral Manufacturing Corporation’s Reply to Petitioner’sMotion. 

[2] Both motionshave, as the last item, Item No. 23., which states “Counsel for MMC sent aletter dated January 18, 2023 to MSHA’s District Managers in Birmingham,Alabama and Barbourville, Kentucky regarding MSHA’s jurisdiction over itsEufaula Plant. That letter is attached as Exhibit D in the Sec’s Motion. TheCourt did not include item 23 in the list above because it considers it to be irrelevantto the jurisdictional issue before it.  

 

[3]Per 30U.S.C. § 802(a), “Secretary” means the Secretary of Labor or his delegate.

 

[4] The Court notesthat this issue of jurisdiction is not merely an academic one. The EufaulaPlant, which bears MSHA Mine ID: 01-03237, in the previous 6 years, had 47cited 104(a) violations. These violations were all paid at their initialproposed penalty amount. *See Mine Data Retrieval System*, Violations,Mine ID: 0103237,1/1/2018-03/10/2024, MSHA (Mar. 11, 2024),https://www.msha.gov/data-and-reports/mine-data-retrieval-system. 

 

Substantively, in the matterspresently before the Court are two dockets. Docket No. SE 2023-0191, involvesan alleged violation of 30 C.F.R. §56.14105, which asserts that “[m]aintenancework is being conducted at this operation on the Pug Mills while the equipmentis not powered off and blocked against hazardous motion. Miners have beenrequired to use plastic stakes to remove material buildup inside the pug millsby placing them through the guards of the pug mills by hand and using them topush the material off the sides and down into the mills. The mills have drumswith teeth that process clay and rotate at approximate 1700 RPMs duringoperation. This practice occurs in order to prevent material in the mills frombuilding up on the sides to the point of pushing the guards upwards, whichactivates t Pug Mills' emergency stop devices and halts production. Thepractice has been part of normal mining operations for an extended period oftime, exposing miners to possible injuries from cuts, lacerations, and bluntforce trauma. Mine management engaged in aggravated conduct constituting morethan ordinary negligence by directing miners to conduct the cleanup activityaround moving without ensuring the pug mills are de-energized and locked out toprevent hazardous motion. This violation is an unwarrantable failure to complywith a mandatory standard.” Petition at 15. 

 

Substantively, Docket No. SE 2023-0203,involves an alleged violation of 30 C.F.R. §56.12004and an alleged violation of 30 C.F.R. §56.14201(b), which assert, respectively,that “[t]he outer jacket on the grounding lead on the portable welder wireswere exposed to mechanical damage[]. The welder was not in use at the time ofinspection and the leads was rolled up. The welder is used as needed formaintenance or repair in the plant area. This condi[tion] on exposes person toelectrical shock and or burn hazards,” and “[t]he conveyors and other relatedelectrical driven equipment could not be seen from the control room. There wasan audi[b]le device located on the top of the control that was not functioningproperly when checked. The plant operator, clean up or maintenance personnelall have access to these areas at any time. Persons are exposed to anentanglement hazard that could cause serious injuries.” Petition at 15-16. 

[5] The reference to“[t]his Court” applies to a decision by another administrative law judge withthe Mine Review Commission, not the undersigned.

 

[6] Highlighting theCommission’s deference to the Secretary’s discretion in such matters, in *Calmatof Arizona*, 27 FMSHRC 617, (Sept. 2005), one former Commissioner, in aseparate affirmance, opined that, were it not for the mine operator’s admissionof MSHA’s jurisdiction, *he* would have held that “the area in question,by geographical location, was more logically aligned with the concrete batchplant and more appropriately within OSHA's jurisdiction.” *Id.* at 627,former Commissioner Michael Duffy, separate, concurring opinion. The problem,of course, is that Congress left such determinations to MSHA and OSHA, not to aCommissioner’s personal take.  

 

[7] The phrase “DejaVu All Over Again” is attributed to the famous Yankees baseball catcher, Yogi Berra.*Deja Vu All Over Again,*Wikipedia(Mar. 13, 2024), https://en.wikipedia.org/wiki/ Deja_Vu_All_Over_Again#:~:text=%22D%C3%A9j%C3%A0%20vu%20all%20over%20again,Again%2FThe%20Best%20of%20T.

 

[8] Non-issues do notwarrant any extended discussion. Accordingly, the subject of commerce, asreferenced above, is sufficiently addressed. That the Acting Secretary also hasthe *burden of proof*, to establish that jurisdiction exists, is not indispute either. Respondent’s Motion at 4, citing**Section 4 of the MineAct and *Secretary of Labor v. Bowman Constr. Co., Inc*, 36 FMSHRC 683,688 (2014). The Secretary has met its burden of proof on these issues.

 

[9] In its Reply toPetitioner’s Motion, the Respondent merely continues, at length, its assertionthat its Eufaula Plant is a ceramic plant. As mentioned, the label Respondentwould like to apply is not determinative. It is a functional test, not a namingtest, and the joint stipulations are this mine’s undoing.