Southern Crushed Concrete

Plain-English summary

Southern Crushed Concrete operated an integrated sand-dredging and processing facility in Texas. OSHA cited conditions at a pug mill where dried sand was mixed with a small amount of cement to produce stabilized sand. The judge found that the pug mill was technologically and geographically integrated with the mining operation, used the same workers, and continued the mineral-preparation process. MSHA had repeatedly inspected the broader facility and had regulations covering the cited energy-isolation and respirator issues. OSHA jurisdiction was therefore preempted, and both citation items were vacated.

Decision snapshot

• Cited standard(s): The decision does not identify the two OSHA standards.
• Outcome: The citation was dismissed and vacated because MSHA had exercised regulatory authority over the integrated mineral-processing operation.
• Key point: MSHA jurisdiction can extend to a facility that continues an integrated mineral-preparation process even when the final step mixes the mineral with another material.

Full text (OSHRC public release)

                       UNITED STATES OF AMERICA
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                      Complainant,
                                                                OSHRC DOCKET NO. 10-2556
                              v.

SOUTHERN CRUSHED CONCRETE,

                      Respondent.

Appearances:

    Karla S. Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
             For Complainant

    John D. Smart, Esq., Winstead Law Firm, Dallas, Texas
            For Respondent

Before: Administrative Law Judge James R. Rucker, Jr.

                                        DECISION AND ORDER

                                            Procedural History

    This proceeding is before the Occupational Safety and Health Review Commission ("the

Commission") pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§651 et seq. ("the Act"). The Occupational Safety and Health Administration ("OSHA") conducted an

inspection of a “Pug Mill” located on a Southern Crushed Concrete (“Respondent”) worksite, known as

Ponderosa Timbers, in Conroe, Texas between June 25 and June 29, 2010. As a result of the inspection,

OSHA issued a Citation and Notification of Penalty to Respondent which alleged one serious and one

other-than-serious violation of the Act with a proposed total penalty of $1,750.00. Respondent contested

the proposed violations and this matter was assigned to the undersigned for adjudication.

    Respondent promptly moved for dismissal of this proceeding based upon purported preemption of

OSHA jurisdiction over Respondent’s Pug Mill by the Federal Mine Safety and Health Administration
(“MSHA”). The court has now reviewed and considered the following submissions of the parties on that

issue: (1) Respondent’s Verified Objection to Assignment for Simplified Proceedings and Motion to

Dismiss, (2) Complainant’s Response to Respondent’s Verified Objection to Assignment for Simplified

Proceedings and Motion to Dismiss, (3) Respondent’s Reply to Complainant’s Response to Respondent’s

Verified Objection to Assignment for Simplified Proceedings and Motion to Dismiss, (4) Respondent’s

Verified Supplemental Brief Regarding Respondent’s Motion to Dismiss, and (5) The Secretary’s

Supplemental Brief in Support of Response to Motion to Dismiss.

                                            Discussion

   Respondent owns and operates an above ground sand mining operation in Conroe, Texas which

primarily consisted, at the time of inspection,1 of a dredging operation which extracted sand from the San

Jacinto River and then processed the sand through the point at which it was ready for sale to customers.

(Resp. Motion, p. 1; Comp. Supp. Brief, p.1). Respondent extracted sand, dirt, and water through an auger

and deposited it onto the shore. (Resp. Supp. Brief, p.2). The wet mixture of sand and mud was then

transported by conveyor belt to a front-end loader, where it was carried 60 yards to a “classifier” machine,

which separated sand particles according to size. (Resp. Supp. Brief, p.2). The sorted sand was then

moved by one of two sand screw conveyors to an area where it was washed and dirt particles were

removed. (Resp. Supp. Brief, p.2). All of the sand was then dried and moved 100 yards to the Pug Mill

with a front-end loader. (Resp. Supp. Brief, p.2). At the Pug Mill, dried sand (99%) was mixed with

cement (1%) to create “stabilized sand,” which was then trucked off the facility for sale to customers.

(Resp. Supp. Brief, p. 2). The entire process, from sand extraction to finished product, was a single,

integrated, continuous operation all located within a 400-500 foot area. (Resp. Supp. Brief, p.2).

   It is undisputed that MSHA frequently inspects Respondent’s entire dredging and sand processing

operation, with the lone exception being the facility at issue in this proceeding: Respondent’s Pug Mill.

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(Resp. Supp. Brief, p. 1; Comp. Supp. Brief, p. 4). In fact, in the six months prior to OSHA’s inspection in

this case, Respondent estimates that MSHA inspectors spent 43 hours examining Respondent’s facility for

safety and health regulatory compliance. (Resp. Supp. Brief, p.2). Respondent now moves for dismissal of

this OSHA enforcement case based on a legal argument that its Pug Mill, just like the rest of its facility, is

subject to exclusive MSHA jurisdiction.

    Apparently, after an MSHA inspection of the facility in June 2010, local MSHA and OSHA

officials decided that, although MSHA regulates and inspects all other aspects of Respondent’s sand

dredging and processing operation at the Ponderosa Timbers location, OSHA has jurisdiction over the

activities at the Pug Mill. (Comp. Response, Ex. C). The court notes, however, that MSHA Assistant

District Manager Fred Gatewood does not represent in his declaration that he has been delegated authority

from the Secretary of Labor to establish official jurisdictional boundaries for MSHA nor does his

declaration assert that he has any direct personal knowledge of the activities that take place in the Pug Mill.

It appears from the supporting declaration submitted by Complainant that the local MSHA Inspector

informally concluded that MSHA does not have jurisdiction over the Pug Mill, then described the Pug Mill

to Assistant District Manager Gatewood, who then agreed with the MSHA Inspector’s jurisdictional

conclusion.

    The declaration of OSHA’s Houston (North) Area Director, David Doucet, is equally unpersuasive.

As with Mr. Gatewood’s declaration, there is no indication that Mr. Doucet has been delegated authority

by the Secretary of Labor to establish official jurisdictional boundaries for OSHA, nor any indication that

he personally observed the activities of the Pug Mill. He too appears to base his jurisdictional conclusions

on the verbal descriptions and conclusions of the local MSHA Inspector. (Comp. Response, Ex. A).

These local, informal, hearsay-based conclusions, fall woefully short of official Agency positions on the

boundaries of Federal statutory and regulatory jurisdiction, and therefore, do not necessitate a significant

1 Respondent’s Pug Mill operations at the Ponderosa Timbers location have now ceased. (Resp. Motion, p. 2).
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level of judicial deference.2 See Carolina Stalite, 734 F.2d 1547, 1552 (D.C. Cir. 1984); Watkins

Engineers & Constructors, 24 FMSHRC 669 (2002).

     When an employer asserts preemption of OSHA jurisdiction by another Federal agency, it must

establish that: (1) the other Federal agency has the statutory authority to regulate the cited working

conditions, and (2) the other Federal agency has actually exercised that authority by issuing applicable

regulations. Chao v. Mallard Bay Drilling, 122 S.Ct. 738 (2002); JTM Industries, 19 BNA OSHC 1697,

2001 CCH OSHD ¶32,502 (No. 98-0030, 2001).

     OSHA, unless preempted by another Agency or barred by statute, generally possesses regulatory

jurisdiction over safety and health issues in any business operating in any industry which affects interstate

commerce. Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). MSHA possesses regulatory jurisdiction

over safety and health issues in mining operations, which includes “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, use in, or to be used in, or resulting from, the work of extracting such minerals from their

natural deposits...used in, or to be used in, the milling of such minerals, or the work of preparing coal or

other minerals...” 30 U.S.C. §802(h)(1). Since both agencies regulate employee safety and health issues,

MSHA and OSHA entered into an Interagency Agreement (“Agreement”) in 1979 which attempted to

articulate boundary lines between their two respective jurisdictions. 44 F.R. 22827. While this Agreement

between the two agencies certainly does not carry the force and effect of law, it is relevant in a judicial

analysis of a jurisdictional dispute such as this one. Carolina Stalite at 1552, supra.

2 The Agreement between MSHA and OSHA regarding jurisdictional boundaries, at ¶B(8), directs that first level decisions
be made by the OSHA Regional Administrator and MSHA District Manager, with ultimate authority over jurisdictional
conflicts under the Agreement resting with the Secretary of Labor. None of the declarations submitted by Complaint in this
case come from officials designated with authority to declare Agency jurisdictional boundaries.

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The dispute here focuses on the question of whether Respondent’s mixing of dredged sand with

cement constituted “milling,” and therefore, “mining” under the Mine Act. The Agreement, in Appendix

A, 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 the separation of one or more

valuable desired constituents of the crude from the undesired contaminants with which it is associated.”

However, the Agreement then lists eighteen examples of activities which constitute milling, many of

which have no relationship whatsoever to the separation of extracted materials. For example, the

Agreement includes crushing, grinding, pulverizing, roasting, calcining, sawing, cutting, and heating in the

category of milling. These inconsistencies in the definition of milling within the Agreement have been

recognized by several courts, with MSHA jurisdiction having been established where operations clearly

included mixing or blending of extracted minerals with non-extracted materials, as in the present case.

Watkins Engineers, supra; Carolina Stalite at FN 10, supra; Stoudt’s Ferry, 602 F.2d 589 (3rd Cir. 1979).

   It is undisputed that Respondent’s activity in the Pug Mill was “mixing” and not one of the

eighteen enumerated milling activities listed in Appendix A of the Agreement between OSHA and MSHA.

(Comp. Supp. Brief, p. 2; Resp. Supp. Brief, p. 5). It is equally clear, however, that Respondent’s Pug

Mill mixing activities do not fit neatly into any of the categories listed in the Agreement where MSHA’s

authority ends and OSHA’s authority begins. Arguably, the closest category is “Concrete Ready-Mix or

Batch Plants,” terms which are not defined in the Agreement. Respondent addressed this issue by

asserting that “the Pug Mill is not a concrete plant of any kind as SCC did not mix, create, or sell concrete

anywhere at Ponderosa Timbers, much less at the Pug Mill.” (Resp. Reply, p. 4). Complainant agreed,

conceding that the end product after processing within the Pug Mill is “stabilized sand,” not concrete.

(Comp. Supp. Brief, p. 1 & Ex. A).

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The terms “mine” and “milling,” which are key to determining whether MSHA has jurisdiction

here, have repeatedly been given an expansive interpretation. Carolina Stalite at 1551, supra. “Milling

and preparation can be perceived as words used, in a loose sense, interchangeably to describe the entire

process of treating mined minerals for market.” Id. In analyzing jurisdiction under the Mine Act, the term

“mine” and “milling” can readily encompass “structures” and “facilities” which are not even located on the

same property where minerals are extracted, but simply continue the processing of those minerals for

market. Id. at 1552; Stoudt’s Ferry, supra. Even the Agreement itself recognized flexible and expansive

concepts of mining and milling, as Paragraph B(4) states “the scope of the term milling may be expanded

to apply to mineral product manufacturing processes where these processes are related, technologically or

geographically, to milling.” In resolving jurisdictional conflicts, the term “mine” was intended “to be

given the broadest possible interpretation and [ ] doubts [were to] be resolved in favor of inclusion of a

facility within the coverage of the [Mine] Act.” Stoudt’s Ferry at 592, supra.

     The following factors are determinative in this jurisdictional analysis: (1) All other areas of

Respondent’s sand dredging and sand processing operation (aside from the Pug Mill) are undisputedly

subject to MSHA jurisdiction, (2) Respondent’s Pug Mill is an integral part, technologically and

geographically, of Respondent’s sand processing operation, (3) the same employees who perform dredging

work also perform the mixing activities at the Pug Mill,3 (4) Respondent’s activities at this location clearly

constitute a single, uninterrupted, integrated process from the initial extraction of sand from the earth to

the end creation of “stabilized sand” for market, (5) MSHA had inspected this facility numerous times for

safety and health compliance prior to this OSHA inspection, and (6) MSHA has applicable regulations

addressing the issues cited by OSHA in this case: 30 C.F.R. §56.12016 (MSHA surface mine regulation on

energy isolation procedures) and 30 C.F.R. §56.5005 (MSHA surface mine regulation on respirator use).

3 This fact was presented during oral argument by the parties during a conference call on the jurisdictional issue.

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Accordingly, the court finds that OSHA jurisdiction in this case is preempted by the existence and exercise

of MSHA regulatory authority. Chao v. Mallard Bay Drilling, supra; JTM Industries, supra.

                                            ORDER

   Based on the foregoing Findings of Fact and Conclusions of Law, Respondent’s Motion to Dismiss

is GRANTED. The Citation and Notification of Penalty is hereby VACATED.

                                          ___/s/_________________________________
                                          JAMES R. RUCKER, Jr.

Date: May 4, 2011 Judge, OSHRC
Denver, Colorado

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