**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

 

 
| 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

 

 

 

Mine: Fairland Plant & Qys |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

**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 Carson[2]is 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 Hurtado[3]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 Contest[4],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 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 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. 

 

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.

 

 

 

***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 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.

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 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., L*egislative 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. 

 

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.”)

 

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 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]

**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 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. 

 

            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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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 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.

 

**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]

 

** **

** **

** **

/s/Richard W. Manning

RichardW.Manning

AdministrativeLaw Judge

 

 

 

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)

----

[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.  

[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).

 

[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 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.” 

[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.

 

[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).

 

[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).

[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. 

[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.”

 

[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).

 

[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).

[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 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

[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. 

 

[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. 

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

[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.