Idaho Travertine Corporation (Commission decision, September 30, 1975)

Plain-English summary

Idaho Travertine quarried large stone blocks at remote sites and transported them to an Idaho Falls plant for cutting, honing, polishing, and finishing. OSHA issued one serious citation and 12 nonserious citations with $1,290 in proposed penalties, but the judge vacated them because he placed the burden on the Secretary to disprove Department of the Interior mine-safety jurisdiction. The Commission held that the OSH Act's other-agency exemption is an affirmative defense that the employer must prove. It took official notice of a later interagency memorandum stating that mine-safety authority covered cutting stone at the quarry before finishing, while OSHA authority began when stone was polished, engraved, or otherwise processed into a finished product. On the existing record, Idaho Travertine had not established that mine-safety regulators exercised authority over its processing plant. The Commission reversed the dismissal and remanded for findings on the citation merits, while allowing additional evidence and argument on the jurisdiction issue.

Decision snapshot

• Cited provisions: 29 U.S.C. § 653(b)(1) and multiple general-industry standards governing noise, PPE, machinery, compressed air, exits, eyewash facilities, gas cylinders, and housekeeping
• Outcome: The order vacating all citations and $1,290 in proposed penalties was reversed, and the case was remanded for further proceedings.
• Key point: An employer invoking another federal agency's safety jurisdiction bears the burden of proving that the agency actually covers the cited working conditions.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

�������������������������������������������� Complainant,

������������������������ v.

OSHRC
DOCKET NO. 1134

IDAHO
TRAVERTINE CORPORATION,

��������������������������������������������� Respondent.

September 30, 1975

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.

BY THE COMMISSION:

The January 25, 1974, decision of
Administrative Law Judge Henry C. Winters is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et seq. [hereinafter cited as �the Act�]. Judge Winters vacated a citation for serious violation and a citation alleging 12 non-serious violations along with proposed penalties of $1,290 on the narrow ground that, pursuant to section 4(b)(1) of the Act, * the Secretary of Labor failed to sustain a burden of showing the lack of jurisdiction of another federal agency after respondent raised the jurisdictional issue; i.e., the jurisdiction of the Department of the Interior under the Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. � 721 et seq.).

In his petition for discretionary review
the Secretary excepted to the Judge�s finding. The Secretary asserts that section 4(b)(1) of the Act is exemptory, and therefore the burden of proof of any exemption is upon respondent. The case is before us on separate orders for review of the Judge�s decisions that were issued by Commissioner Cleary and former Commissioner Van Namee. Commissioner Cleary granted the Secretary�s aforementioned petition Former Commissioner Van Namee�s order concerned the same subject matter. Both parties have briefed the section 4(b)(1) issue before us.

Respondent quarries Travertine stone at
four sites in Idaho. Following quarrying, the stone is trucked 40 to 80 miles to respondent�s stone-processing plant at Idaho Falls, Idaho. The marble slabs arrive at the plant weighing about 14 or 15 tons. The slabs are approximately seven-feet long, four-feet wide, and four-feet high. They are roughly cut and unfinished because there are no cutting or crushing facilities at the quarries. At the processing plant the slabs are cut on a gang-saw into pieces of varying thickness. They are then cut either to a specific size or shipped as cut by the gang-saw. The more finely-cut blocks are cut to architectural specifications, and either honed, polished, or left in a sawed condition. The stone is used for building exteriors, interior wall facings and fireplaces.

After the Judge�s decision had been
directed for review before the full Commission, the Mining Enforcement and Safety Administration of the Department of the Interior (MESA) and the Assistant Secretary for Occupational Safety and Health of the Department of Labor entered into a �Memorandum of Understanding� to clarify the application of the two statutes involved dealing with employee safety and health.

The Memorandum of Understanding was
published on July 26, 1974, in 39 F.R. 27382. In the Memorandum, MESA interprets its authority under section 2(b) of the Metal Act, and defines �milling� as follows:

Milling is 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.

�

This definition is followed by
descriptions of processes which MESA would regulate. It includes:

Sawing and Cutting Stone

Sawing and cutting stone is the process of
reducing quarried stone to smaller sizes prior
to removal from the quarry, at the quarry site, and before the stone is polished, engraved, or otherwise finished to its final form (emphasis added).

The Memorandum also states that, with regard to custom stone finishing, OSHA authority �[c]ommences at the point when milling, as defined, is completed, and the stone is polished, engraved, or otherwise processed to obtain a finished product.�

The Federal Register Act (44 U.S.C. � 1501
et seq.) provides that �[t]he contents of the Federal Register shall be judicially noticed . . .� 44 U.S.C. � 1507 (emphasis added). Rule 210(f) of the Federal Rules of Evidence codifies the usual view that judicial notice may be taken at any stage of a proceeding. See Advisory Committee�s Note to Fed. R. Evid. 201(f). See also Attorney General�s Manual on the APA (1947), p. 80. We therefore shall take official notice of the Memorandum of Understanding. [1]

Applying the Memorandum to the present
record, we reverse the Judge�s decision because under its terms MESA would exercise no authority to prescribe or enforce safety or health standards at the stone-processing plan. It is now well settled that any lack of OSHA application under section 4(b)(1) of the Occupational Safety and Health Act is an affirmative defense. See, for example, Bettendorf Terminal Inc., No. 837 (May 10, 1974); Crescent Wharf & Warehouse Co. , No. 1672 (February 21, 1975); Southern Pacific Transport Co ., No. 1348 (November 15, 1974). On the record as it now stands respondent has not proved an affirmative defense.

Because of the Judge�s disposition, no
findings of fact were made on the merits of the citations, and a remand for that purpose shall be ordered. But regarding the section 4(b)(1) issues, the parties did not try the case on the principles noted here. Respondent, as well as the Secretary, may well have presented its proof differently if the Memorandum of Understanding anteceded the hearing.

Accordingly, we order the Administrative
Law Judge to afford the parties the opportunity to submit upon request any additional evidence and accompanying argument on the section 4(b)(1) issue. No additional evidence shall be taken on the merits of the citations, unless the Judge finds that substantial justice so requires. Further argument on the merits shall be freely allowed.

The Judge�s decision is reversed, and the
case is remanded for further proceedings not inconsistent with this opinion.

So ORDERED.

FOR THE COMMISSION:

�

William S. McLaughlin

Executive Secretary

DATED: SEP 30, 1975

�

MORAN, Commissioner, Dissenting:

The issue before this tribunal is a simple
one: [2] Did complainant carry its
burden of proof? Judge Winters correctly answered this in the negative when he stated:

�. . . where, as here, the Respondent has
in good faith raised the jurisdictional issue and has shown by competent evidence that another particular federal agency has officially asserted what appears to be conflicting jurisdiction, the Secretary has the burden of affirmatively showing the lack of jurisdiction in such other agency. If in order to make such an affirmative showing, it is necessary to introduce evidence, the Secretary has the burden of going forward with the evidence.�

�

What the Commission has done in this case
is to use a document published in 1974 to overturn a decision issued in 1972. It seems to me that each case should be judged by the law that exists when the charge is initiated. But even assuming that the ban on ex post facto laws did not prohibit the basic unfairness of this action by the two members who make up the majority in this case, the fact remains that there has been a failure of proof on behalf of the complainant.

In clear and unambiguous language, 29
U.S.C. � 653(b)(1) provides that the Secretary of Labor has no authority under the Occupational Safety and Health Act if any other Federal agency exercises statutory authority to regulate in the field of occupational safety or health. When such authority is absent, there is a lack of jurisdiction. This is consistent with prior Commission decisions which have referred to section 653(b)(1) questions as jurisdictional issues. Secretary v. California Stevedore & Ballast Co. , 8 OSAHRC 811 (1974); Secretary v. Sigman Meat Company , 8 OSAHRC 216 (1974 ); Secretary v. Phoenix, Inc ., 1 OSAHRC 355 (1972).

When jurisdiction is challenged by a party
litigant, [3] the ultimate burden of
proving jurisdiction rests upon the one who asserts it rather than the one who challenges it. See, e.g., Thomson v. Gaskill, 315 U.S. 442 (1942); McNutt v. General Motors Acceptance Corporation , 298 U.S. 178 (1936); McNutt v. McHenry Chevrolet Co., Inc ., 298 U.S. 190 (1936); Gibbs v. Buck , 307 U.S. 66 (1939); Nelson v. Keefer , 451 F.2d 289, 296 (3rd Cir. 1971); Arnold v. Troccoli , 344 F.2d 842, 845 (2d Cir. 1965). That rule is fully in consonance with the language contained in section 653(b)(1) which gives primacy to existing laws in providing that the Act does not apply where �other Federal agencies. . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.� The expansive wording of that section clearly indicates that Congress intended no contraction of the coverage of existing laws. [4] If the other Federal agency exercises authority to �prescribe or enforce,� Congress said, then this Act does not apply. The prescribing or enforcing authority is for either �standards or regulations� which may be �affecting� job �safety or health.�

The courts have traditionally given
preferred treatment to jurisdictional matters. Indeed, it is the duty of a court independently to examine the jurisdictional underpinnings of an action, regardless of whether a subject matter jurisdictional question is formally raised by the parties. This is especially true whenever it appears from the pleadings that jurisdiction may be lacking. Clark v. Paul Gray, Inc ., 306 U.S. 583, 588 (1939); Givens v. W. T. Grant Company , 457 F.2d 612 (2d Cir. 1972); Nieves v. Stamford Hospital , 345 F. Supp. 1014 1016 (D.C. Conn. 1972).

Here, the respondent raised the issue of
lack of jurisdiction on the ground that jurisdiction rests with another Federal agency under 29 U.S.C. � 653(b)(1). This made it mandatory for the complainant to prove a lack of jurisdiction in the other agency. The complainant has had its day in court and failed to do so as it did not establish that the respondent�s plant was not �milling� operation over which the Department of the Interior prescribed or enforced safety regulations. [5] Reliance at this late date on an ex post facto memorandum to reopen this case is clearly wrong and unjust.

With this decision the Commission is
saying, in effect, that the Secretary of Labor failed to prove his case at the 1972 trial so we will give him a second chance now�and he can use matters which occurred in 1974 to help him do so. I don�t perceive this as equal justice under law and I cannot subscribe to any such practice.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

�������������������������������������������� Complainant,

������������������������ v.

OSHRC
DOCKET NO. 1134

IDAHO
TRAVERTINE CORPORATION,

��������������������������������������������� Respondent.

FINAL ORDER DATE: February 25, 1974

DECISION AND ORDER

�

APPEARANCES:

MALCOLM R. TRIFON, Esq. for the Complainant

G. RICH ANDRUS, Esq. for the Respondent

Henry C. Winters, Judge

�

STATEMENT OF THE CASE

This is an action brought by the Secretary
of Labor under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq) to affirm two citations issued June 16, 1972, one alleging a serious violation and the other alleging 12 non-serious violations, and to affirm proposed civil penalties totaling $1,290.00.

The citations were issued by the Secretary�s area director as a result of an inspection made by a compliance officer on May 23, 1972 of a plant operated by Idaho Travertine Corporation, Respondent, at Idaho Falls, Idaho where raw travertine stone from quarries in the area is processed into finished building stone.

����������� Citation
for Serious Violation Number 1 alleges the following violation:

Standard
or Regulation allegedly violated

Date
on which alleged violation must be corrected

Description
of alleged violation

29
CFR 1910.213(h)(1)

July 17, 1972

The radial saw
in the rack area does not have a guard for the sides of the lower exposed portion of the saw blade.

Citation Number 1 alleges the following
violations:

Standard
or Regulation allegedly violated

Date
on which alleged violation must be corrected

Description
of alleged violation

1
29 CFR 1910.95(b)(1)

6
months December 18, 1972

plan of action
and reports to be submitted in accordance with cover letter. Failure to provide and implement a plan of administrative or engineering controls to reduce sound level for employees to permissible exposures as defined in Table G 16, under 1910.95, these employees being present in the following locations with the sound levels noted for each location:

1�Trim Saw
Helper Area�92/103dBA

2�Trim Saw
Operator

2
29 CFR 1910.95(a)

July 6, 1972

The
workman in the following locations are not protected against excessive noise levels

1�Trim
Saw Helper Area

3
29 CFR 1910.133(a)(1)

5
days

The
workmen do not use eye and face protection when breaking slab off of stone block.

4
29 CFR 1910.169(b)(3)(iv)

IMMEDIATELY

The
safety valve on the air receiver is not checked at regular intervals, to determine if it is in good operating condition.

5
29 CFR 1910.242(b)

July
17, 1972

Compressed
air used for cleaning is between 85 and 90 p.s.i. without the use of reducing type nozzles.

6
29 CFR 1910.37(q)(1)

July
6, 1972

All
personnel exits are not marked as such.

7
29 CFR 1910.151(c)

July
17, 1972

In
the polishing area Hydrochloric acid is mixed and used there are no facilities for flushing of the eyes and body.

8
29 CFR 1910.213(h)(4)

July
17, 1972

The
radial saw in the rack area does not return to the starting position when released by the operator.

9
29 CFR 1910.252(a)(2)(ii)(b)

5
days

Outside
and behind the building is an unsecured fuel gas cylinder.

10
29 CFR 1910.252(a)(2)(ii)(d)

5
days

Outside
and behind the building is a fuel gas cylinder, free standing and without a protective cap.

11
29 CFR 1910.252(a)(2)(iv)(c)

5
days

In
the maintenance area of the plant a fuel gas cylinder and an oxygen cylinder are stored together.

12
29 CFR 1910.219(b)(1)

July
17, 1972

The
fly-wheel to the gang saw is not completely guarded.

13
29 CFR 1910.22(a)(1)

June
30, 1972

Housekeeping
in the following areas was very bad.

�

1�Outside
and behind the building a large amount of debris was laying on the ground; such as, lumber with nails in it, wire, scrap iron, scrap rock, five gallon metal container, etc.

�

2�In
the shop area of the plant material such as; electric cords, shovels, hoses, spare parts, etc., are laying on floor.

�

3�In
the shop area of the plant material, such as; pipe, lumber, five gallon metal containers are laying on the floor in front of the rack area.

By Notification of Proposed Penalty,
issued June 16, 1972, the Secretary proposed the following penalties:

�

SERIOUS VIOLATIONS

Citation No. 1 $750.00

OTHER VIOLATIONS

Citation No. 1

Item No.

1

1

00

2

35.00

3

00

4

00

5

00

6

00

7

75.00

8

00

9

55.00

10

55.00

11

00

12

00

13

375.00

By Notice of Contest, issued July 5, 1972,
as amended July 20, 1972, the Respondent contests each alleged violation in the two citations and each proposed penalty.

The Secretary in the Complaint filed July
21, 1972, seeks to have each citation and each proposed penalty affirmed, except item No. 9 of Citation Number 1 and the proposed penalty of $55.00 for item No. 9. The Respondent in its Answer filed August 9, 1972, denies that the violations have occurred and that penalties should be imposed, challenges the jurisdiction of the Secretary to issue the citations, and moves that the Complaint be dismissed and no penalties be imposed.

This case was heard by this Judge at Idaho
Falls, Idaho on November 21, 1972. Proposed findings and briefs were submitted by the parties, the final briefs being filed January 11, 1973.

The Respondent contends that the Secretary
of the Interior, rather than the Secretary of Labor, has jurisdiction to prescribe and enforce standards and regulations affecting the occupational safety and health of employees of its Idaho Falls plant. Section 4(b)(1) of the Act (29 U.S.C. 635(b)(1) provides that nothing in that Act shall apply to working conditions of employees with respect to which other federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. The Secretary of Interior is authorized by the Mine Safety Act to prescribe and enforce such standards with respect to mines. [6] The Secretary of the Interior has exercised such authority by the issuance of standards and regulations. [7] If, indeed, Respondent�s Idaho Falls plant is a mine within the meaning of the Mine Safety Act and of standards and regulations thereunder, then the Secretary of Labor did not have jurisdiction to issue the involved citations and the citations and proposed penalties would have to be vacated.

There is no dispute as to exactly what
activity is engaged in by Respondent at its Idaho Falls plant. The following pertinent testimony was elicited from Respondent�s president (TR 170�174):

DIRECT EXAMINATION BY MR. TRIFON

� �.
. ..

Q And what business is Idaho Travertine
engaged in?

�

A It�s involved in the guarrying and
finishing of Travertine products.

Q At what location is the Travertine rock
quarried?

A We have four guarries, one in the Fall
Creek area directly south of Irwin, Idaho, approximately forty miles from Idaho Falls, then three in the Medicine Lodge Creek area, approximately eighty miles northwest of Idaho Falls.

Q So the closest quarry is forty miles
from Idaho Falls?

A Approximately, yes.

Q (By Mr. Trifon) And where does your
company finish the Travertine rock?

A At 3935 North Yellowstone Highway, Idaho
Falls.

Q And what processes go on in the
finishing plant, very briefly?

A The blocks are hauled down on trucks,
blocks generally averaging fifteen ton per block, rough cut, not otherwise finished. They are then placed in the shop under the gang saw, previously mentioned by Mr. Jackson, where they are cut in slabs of varying thicknesses. From that point they are generally cut to a specific size or shipped out as what we call raw slabs, just as they come out of the gang saw. Those occasionally are shipped directly to the customer. I might mention also the raw blocks are shipped directly to a customer and never come to the plant at all, go from the quarry to the railhead and out. Then from that point some of them are cut to size for a specific job of architect specifications and are�the finish can very. They can either remain in a straight sawn condition, can have a polish finish, a hone finish put upon them through mechanical means.

�

CROSS EXAMINATION BY MR. ANDRUS

Q How are the blocks quarried?

A They�re quarried by large equipment, the
use of compressors, drills, splitting equipment, some minor blasting, and large rock moving equipment such as D�9 Caterpillar tractor.

Q Are there any facilities for cutting or
crushing rock at the quarries?

A No.

Q They are just taken out of the mountain,
loaded on the truck, and hauled to Idaho Falls?

A Right.

�

REDIRECT EXAMINATION BY MR. TRIFON

Q Approximately what size is a rock at the
quarry after it comes out of the quarry?

A Here again they vary. An average would
probably be fourteen, fifteen ton.

JUDGE WINTERS: Could you give us the
dimensions?

THE WITNESS: You mean physical dimensions.
Oh, probably the average is seven foot long, four foot high, four foot wide.

JUDGE WINTERS: Generally speaking, what�s
it used for?

THE WITNESS: Building exteriors and
interior wall decorative facings, fireplaces, this sort of thing.

�

The crucial question then is: Does the
above-described activity engaged in at the Idaho Falls plant constitute activity of a �mine� subject to the Mine Safety Act and standards and regulations thereunder?

Section 2(b) of the Mine Safety Act, as
here pertinent, defines a �mine� as:

. . . (1) an area
of land from which minerals other than coal and lignite are extracted in nonliquid form . . . (2) private ways and roads appurtenant to such area, and (3) land, excavations, underground passageways, and workings, structures, facilities, equipment, machines, tools or other property . . ., on the surface or underground, used in the work of extracting such materials . . . from their natural deposits, or used in the milling of such materials .
. . (emphasis supplied)

�

Travertine stone is a nonliquid mineral
other than coal or lignite. The Idaho Falls plant is not an area of land from which such materials are extracted, nor is it a private way or road appurtenant to such an area of land, nor is it used in the work of extracting such materials. Therefore, in order to come within the above definition the plant or its contents must have been used in the �milling� of travertine stone.

The term �milling�, a transitive verb, is
not defined in the Mine Safety Act nor in the standards issued pursuant thereto. [8] The parties did not offer in evidence a definition of the word �milling� as that term is used in the Mine Safety Act. No expert witnesses were called nor did a representative of the Secretary of the Interior testify. The transitive verb, �mill�, is defined in Webster�s Third New International Dictionary, Copyright 1971 by G. & C. Merriam Co. in the following language:

mill /�/ vb-ED/-ING/-s vt 1: to subject to
some operation or process in a mill: shape or finish by means of a mill or machine: as a: to full (cloth) in a fulling mill b: to grind into flour, meal, or powder c: to hull (seeds) by using a mill d: to shape or dress (as metal) by means of a rotary cutter: to make (as a key seat) with such a cutter e: to stamp (a coin) in a screw press f: to pass (soap chips) through a roller mill in the manufacture of toilet soap or soap flakes > g: to mix and condition (as rubber) by passing between rotating rolls h: to roll (as steel) into bars i: to crush or grind (ore) in a mill.

�

The cutting of large blocks of stone into
smaller sizes as well as the subsequent honing and polishing could reasonably be interpreted as shaping and finishing by means of a machine, so as to constitute milling, as above defined. On the basis of the dictionary definition, one would conclude that the Idaho Falls plant is a mine as defined in Section 2(b) of the Mine Safety Act. There is no reason to conclude as far as the record in this case is concerned, that the Secretary of the Interior did not intend, by the issuance of the standards and regulations in 30 CFR Parts 55, 56 and 57, to exercise all of the authority conferred upon him by the Mine Safety Act to issue such standards and regulations.

On October 19, 1971 and again on December
28, 1971 inspectors of the Bureau of Mines of the Department of the Interior conducted inspections of Respondent�s Idaho Falls plant pursuant to Section 4 of the Mine Safety Act. After each inspection a written report entitled �Health and Safety Inspection Report� was issued to Respondent by the Bureau of Mines (Respondent�s Exhibits Nos. 2 and 3). The report covering the inspection of October 19, 1971 called attention to alleged violations of 30 CFR 56.12�13, 56.14�1 and 56.4�24 (Respondent�s Exhibit No. 2). The report covering the inspection of December 28, 1971 verified that the prior violations of mandatory standards as noted in the prior inspection report had been abated (Respondent�s Exhibit No. 3). The transmittal letters from the Seattle, Washington office of the Bureau of Mines accompanying each of such reports, referred to Respondent�s Idaho Falls plant as a mine.

On September 21, 1972, Respondent�s
president received the following letter on the letterhead of the United States Department of the Interior, Bureau of Mines, 620 Central Avenue, Alameda, California 94501 (Respondent�s Exhibit No. 6):

� �September
18, 1972

�

Theo R. Orchard, President

�

Idaho Travertine Corporation

�

3935 North Yellowstone Highway

�

Idaho Falls, Idaho 83401

�

Dear Mr. Orchard:

�

In reference to your letter to Allen D.
Look dated September 11, 1972, relative to inspection of your operations by Compliance Officers from the Occupational Safety and Health Administration (OSHA), our Washington, D. C. officials inform me that the officers were within their jurisdiction.

�

For your information, the Bureau of Mines
and OSHA have jointly developed guidelines for use in determining areas of jurisdiction under the Metal and Nonmetal Mine Safety Act and the Occupational Safety and Health Act. The inspections that you speak of by the Bureau of Mines inspectors may have preceded development of these guidelines. Field representatives of both agencies are now aware of their areas of jurisdiction.

�

The Bureau of Mines at this time inspects
operations, such as yours, starting with removal of any overburden and subsequent mining of the travertine rock in blocks. OSHA jurisdiction then commences at your Idaho Falls plant where the rock is honed and polished to job specifications.

�

In summary, our health and safety
regulations apply to quarry integrated plants and milling operations but not subsequent material processing phases, such as your Idaho Falls plant. We anticipate that this will continue to be so.

Sincerely yours,

�

s/E. F. Allen

E. F. Allen

Acting District Manager

�

The �guidelines� referred to in the second
paragraph of the above letter have not been offered or received in evidence or otherwise called to the attention of this Judge. There is no way to verify whether guidelines have in fact been adopted nor to determine whether, if adopted, that they were done in such a way as to have the force and effect of law, binding upon Respondent and others similarly situated. The letter is unclear in several respects. It seems to imply that only honing and polishing are done at the Idaho Falls plant. It does not mention the major activity of cutting the rough quarried blocks into smaller pieces. The letter gives no authority for the conclusion that Bureau of Mines health and safety regulations apply only to �quarry integrated plants�, nor does it explain the basis for concluding that the Idaho Falls plant is not a quarry integrated plant. Most importantly, the letter does not explain the implication that the activity of the Idaho Falls plant does not constitute milling operations.

The inspections by Bureau of Mines
officials on October 19, 1971 and December 28, 1971 and the subsequent issuance of inspection reports (Respondent�s Exhibits 2 and 3) constitute official acts of the Secretary of the Interior in enforcing occupational safety and health standards duly promulgated under the authority of the Mine Safety Act. These inspection reports have not been officially withdrawn or otherwise vacated. The basic laws conferring jurisdiction in such matters have not changed since the inspection reports were issued. [9] The letter of September 18, 1972, which was introduced in evidence as a late-filed exhibit at the request of this Judge, constituting as it does hearsay evidence [10] , can be accepted as the personal opinion of the writer but not as an expression of the official position of the Secretary of the Interior.

The Secretary has the burden of proving
every essential element of an alleged violation, including that the Respondent�s operations are subject to the Act and to the particular standards or regulations alleged to be violated, and that the Secretary has jurisdiction to make the inspection and issue the citation. This does not mean that the Secretary has the burden of showing in each case that no other federal agency has conflicting jurisdiction. But where, as here, the Respondent has in good faith raised the jurisdictional issue and has shown by competent evidence that another particular federal agency has officially asserted what appears to be conflicting jurisdiction, the Secretary has the burden of affirmatively showing the lack of jurisdiction in such other agency. If in order to make such an affirmative showing, it is necessary to introduce evidence, the Secretary has the burden of going forward with the evidence.

Giving consideration to all of the matters
discussed above, to all of the pleadings and evidence, and to the briefs of the parties, the Judge finds that the Secretary has failed to prove [11] that working conditions of employees at Respondent�s plant at Idaho Falls, Idaho are subject to the Occupational Safety and Health Act of 1970. Therefore, the citations and notification of proposed penalties issued June 16, 1972, must be vacated.

ORDER

In view of the findings made herein,

IT IS ORDERED:

1. Citation Number 1, Citation for Serious
   Violation Number 1, and Notification of Proposed Penalty, all issued June 16, 1972, be, and they are hereby, vacated.

�

Dated at Seattle, Washington this ___ day of January, 1974.

�

HENRY C. WINTERS

Judge

January 25, 1974

*
Section
4(b)(1) states in relevant part:

Nothing
in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

[1]
Under section
7(d) of the APA, codified at 5 U.S.C. section 556(e), the respondent may request an opportunity to show facts contrary to those officially noticed in this decision. This may be done upon the remand of this case.

[2]
This case
was directed for review by granting a petition filed by the Secretary of Labor in which the sole issue raised was the Judge�s ruling that the Secretary has the burden of proving that no other Federal agency has conflicting jurisdiction when such an assertion is made by respondent.

[3]
Respondent�s
jurisdictional challenge in this case was based on genuine practicalities as well as the law. Only 5 months prior to the inspection which initiated this case this self-same facility was given a job safety inspection by representatives of the Secretary of Interior who left no doubt that respondent was subject to the jurisdiction of the Interior Department. The Secretary of the Interior is authorized under the Federal Metal and Nonmetallic Mine Safety Act, 80 Stat. 772, 30 U.S.C. � 721 et seq., to prescribe or enforce standards or regulations affecting occupational safety or health. Furthermore, he has exercised that authority. See, e.g., 30 C.F.R. �� 55�57.

[4]
The Mine
Safety Act was enacted prior to enactment of the Occupational Safety and Health Act of 1970.

[5] � See 30 U.S.C. � 721(b).

[6]
See the
Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 721 et seq) commonly called the Mine Safety Act, particularly Sections 3(a) and 6(a), thereof.

[7]
30 CFR Part
55, applicable to open pit mines; 30 CFR Part 56, applicable to sand, gravel, and crushed stone operations; and 30 CFR Part 57, applicable to underground mines.

[8]
The
standards promulgated by the Secretary of the Interior (30 CFR 55.2, 56.2 and 57.2) defines the noun �mill� as follows:

�Mill�
includes any ore mill, sampling works, concentrator, and any crushing, grinding or screening plant used at and in connection with an excavation or mine.

This language, especially in the
absence of expert testimony, is not helpful here in resolving the issue of whether Respondent�s Idaho Falls plant is a mine. It is not clear whether the word �includes� means �includes only the following� or whether it means �includes but is not limited to the following.� The fact that in defining other terms in 29 CFR 55.2, 56.2 and 57.2 the verb �means� is used but in this instance the predicate verb �includes� is used, the fact that the term �ore mill� is used after the verb �includes�, leads this Judge to conclude that a comprehensive or all-inclusive definition of the word �mill� was not intended.

[9]
The
reorganization in the Department of the Interior delegating certain activities of the Bureau of Mines to the newly-created Mining Enforcement and Safety Administration did not reduce the scope of authority exercised by the Secretary of the Interior under the Mine Safety Act.

[10]
Neither the
writer of the letter, �E. F. Allen�, nor any of the �Washington, D.C. officials� referred to in paragraph one of the letter, were available for cross-examination at the hearing.

[11]
This decision
is based upon failure of proof, not upon lack of jurisdiction of the Secretary of Labor. This decision does not diminish whatever existing obligation is imposed upon the Respondent by law, including the Occupational Safety and Health Act of 1970 and standards and regulations promulgated thereunder.