1 

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

 March 15, 2024 

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. 

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. 

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 
2

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 
3

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 

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. 
4 

purposes of this chapter, the Secretary3 [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 Analysis4

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 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, tunnels and workings, 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 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) (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 
6

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 
7 

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), reprinted in, 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. 
8

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 Court5 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. 

5 The reference to “[t]his Court” applies to a decision by another administrative law judge with the 

Mine Review Commission, not the undersigned.
9

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 Commission6 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.

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. 
10

Deja Vu All Over Again7 

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 

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.
11

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 Corporation8

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”) 

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.
12

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 nonexhaustive 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.

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. 
13

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.
14 

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.

 

 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)