Secretary of Labor v. Jamestown Quarries and Secretary of Labor v. Rocky Ridge Custom Crushing, LLC

Plain-English summary

Jamestown Quarries and Rocky Ridge Custom Crushing disputed MSHA's jurisdiction over a garage and stone-processing shop beside an active Tennessee quarry. Judge David P. Simonton held that the garage was a mine facility because it was adjacent to the quarry, stored a service truck and quarry equipment, and supported repair and maintenance work at the mine. He also held that the processing shop remained under MSHA because its breaking, cutting, sawing, and sizing work was technologically and geographically tied to milling, even though the shop also polished and finished some stone. The Secretary reasonably chose unified MSHA coverage for the property, while OSHA had never asserted jurisdiction there. Under the parties' stipulation, the judge affirmed all four citations and assessed $348 against Jamestown and $116 against Rocky Ridge.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.4430(a)(1), 56.14100(a), and 56.12008
• Outcome: All four citations were affirmed, with total penalties of $348 for Jamestown Quarries and $116 for Rocky Ridge Custom Crushing.
• Key point: Mine-adjacent facilities that support quarry equipment or combine stone milling with finishing may fall under MSHA when unified coverage is reasonable and administratively practical.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19 th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

June 13, 2018

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

JAMESTOWN
QUARRIES,

Respondent.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

ROCKY RIDGE
CUSTOM CRUSHING LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2017-252

A.C. No. 40-03297-441925  

Mine: Rocky Ridge Custom
Crushing LLC

CIVIL PENALTY PROCEEDING

Docket No. SE 2017-253

A.C. No. 40-03297-442550

Mine: Rocky Ridge Custom
Crushing LLC

DECISION

Appearances:               Mary Sue Taylor, Esq., U.S. Department
of Labor, Office of the Solicitor,

Nashville,
Tennessee, for Petitioner

Howard Upchurch, Esq.,
Pikeville, Tennessee, for Respondent

Before:            Judge Simonton

I.    
INTRODUCTION

These cases are
before me upon two petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Jamestown Quarries and Rocky Ridge Custom Crushing, LLC, pursuant
to the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §801. [1]
The petitions allege three citations against Jamestown Quarries and one
citation against Rocky Ridge Custom Crushing. The Respondents share common
ownership, are located in close proximity, and stipulated that if the court
were to find that MSHA has jurisdiction over the Rocky Ridge Custom Processing
Shop, the Jamestown Quarries Garage, or both, then the associated citations
were properly issued and valid. Resp. Br. at 2; Tr. 8-9. For these reasons, the
dockets were consolidated for a hearing on the jurisdictional issue.

The parties
presented testimony and documentary evidence at a hearing held in Crossville,
Tennessee on February 22, 2018. MSHA Inspector John Myers, Jr. testified for
the Secretary. Site Foreman Gabe Clayborn and co-owner Patrick Garrison testified
for Jamestown and Rocky Ridge (“Hereinafter Respondents”). The parties
submitted post-hearing briefs, which have been fully considered.

II.    
FINDINGS OF FACT

The Rocky Ridge Stone Quarry
(“Quarry”) is located in Cumberland County, Tennessee. The Quarry mines and
produces dimensional stone, or sandstone, for resale in interstate commerce. Tr.

16. Adjacent to the Quarry is a three-building complex that includes an office
    trailer, the Jamestown Quarries Garage (“Garage”), and the Rocky Ridge Custom Processing
    Shop (“Shop”). Tr. 113-14. All three operations conduct their administrative
    operations out of the office trailer. Tr. 111. There is no dispute as to MSHA’s
    jurisdiction over the common office space or the Quarry itself. Tr. 23-24.

The Quarry is entered by going down
a road that passes next to the three-building complex. Tr. 139-40. Along this
road, a gated fence separates the three-building complex from the Quarry and two
warning signs are posted to the gate. Exs. G–14, 15; Tr. 45, 142. The first
sign warns of blasting danger in the Quarry and directs individuals to register
at the office trailer, receive the necessary site-specific hazard awareness
training, or be accompanied by an experienced miner when entering the premises.
Ex. G–15. The second sign prohibits through traffic and lists general traffic
rules for the Quarry site. Ex. G–14.

The Jamestown Quarries Garage is
located directly behind the office trailer and is connected to the Shop by a
common breezeway. Ex. G–2. The Garage is leased to Jamestown Quarries by Rocky
Ridge Stone Company, although both companies are commonly owned by Patrick Garrison
and Johnny Presley as Bedrock Partnership Holdings. Tr. 102, 173. The Garage serves
as a storage, repair, and maintenance building, in which Jamestown’s mechanics
work on equipment that is used in the course of the owners’ business ventures. Tr.
114-15; 174. The Jamestown Quarry itself is located approximately 52 miles north
of the Garage and is shut down. Tr. 178-79.

The parties dispute whether any
Rocky Ridge equipment is serviced inside the Garage. The Respondents maintain
that the Garage is not large enough to hold or service other equipment related
to the Rocky Ridge Quarry. Tr. 114-15; 162. However, Foreman Gabe Clayborn would
not unequivocally state that quarry equipment has never been serviced in the
garage itself. Tr. 149-50. Inspector Myers testified that he had no doubts that
Quarry equipment was maintained in the Garage because it was located so close to
the Quarry. Tr. 89. He noted that the Garage also stored an inoperative rock
breaker. Tr. 116. The rock breaker has been stored there for approximately two
years to protect it from adverse weather. Id . Respondents testified that
it would be unable to use the breaker even if it was operable because it would
be too difficult to transport material from the Quarry to the Garage. Tr.
116-17.

The parties do not dispute that the
Garage’s mechanics work on Quarry equipment in general, however. The Garage has
a MSHA Contractor Identification number so that its employees may be on the Rocky
Ridge Quarry site for five or more consecutive days. Tr. 172-73. Clayborn
testified that Jamestown registered for a contractor ID number so that the Garage’s
mechanics may travel to the quarry to maintain, repair, or weld any equipment
that might require service. Tr. 173-75. The mechanics use a service truck
stocked with all of the tools and supplies necessary to perform these functions
at the Rocky Ridge Quarry, as well as other nearby quarries. Tr. 176, 179. The truck
is stored in the Garage. Id .

The Rocky Ridge Custom Processing Shop
(“Shop”) is adjacent to the office trailer and Garage to the south. Ex. G–2;
Tr. 117. The Shop consists of two sections, separated by a partition stretching
approximately three quarters the length of the building. Tr. 125-26. The first,
larger section has a gabled roof and was constructed in 2012. Tr. 122. The
entry way to the gabled portion contains a sign that reads “Rocky Ridge Stone
Co. Polishing & Finishing Shop.” Ex G–6; Tr. 41, 129. The gabled section contains
two large rock breakers that Respondent uses to break, cut, and size rock. Tr.
124, 126. The second section has a flat roof and was constructed in 2014. Tr.

126. This section contains a saw and polisher used for additional sizing and
     finishing. Tr. 40-41, 126-27.

Rocky Ridge excavates the rock from
the Quarry, breaks the rock, and brings some of the rock into the Shop for additional
cutting, sizing and finishing per customer orders. Tr. 131-32. Respondents also
break and size rock outside of the Shop, and they do not polish or finish all
of the rock that is excavated from the Quarry. Tr. 157. Rocky Ridge also
removes some of the rock from the building to be palletized outside of the
building. Id . A significant amount of cut stone is palletized outside of
the Shop. Ex. G–8; Tr. 133-34.

In 2016, MSHA sent the Respondents
a letter informing them that it had conducted an analysis and determined that
it had jurisdiction over the buildings pursuant to the Mine Act and the 1979
MSHA-OSHA Interagency Agreement. Ex. R–5; Tr. 28-29, 169. Respondents received
the letter but interpreted its language to exclude the Shop and Garage from
MSHA jurisdiction based on certain terms within the Interagency Agreement. Ex.
R–5; Tr. 167-69. While the Respondents believed that OSHA had jurisdiction over
the buildings, they acknowledged at hearing that OSHA has never asserted
jurisdiction over, nor inspected any area of the property. Tr. 154-55, 172.

The interpretational differences
came to a head in early May 2017 when MSHA inspector John Myers, Jr. [2]
inspected the Rocky Ridge Stone Quarry. [3]
Myers held two safety meetings; the first took place in the Garage in front of
approximately 15 employees, and the second took place in the quarry yard in
front of five employees. Tr. 20. Myers inspected the surface and the common
office building, but did not inspect the Garage or the Shop because management
told him that they were not part of the Quarry. Id . When Myers returned
to the MSHA office, his supervisor told him that MSHA had jurisdiction over the
two buildings and instructed him to return to the site to complete the inspection.
Tr. 29. Myers conducted the second inspection on May 8-9, 2017. Tr. 29. Mine
management initially refused Myers entry to the buildings but eventually
allowed him to inspect the areas over their objections. Tr. 29-30.

Myers issued three citations to
Jamestown Quarries for violations within the Garage. Citation No. 8901448
alleged a violation of 30 C.F.R. § 56.4430(a)(1) for the operator’s failure to
properly store a propane tank and several spray cans containing flammable
materials. Ex. G–16. Citation No. 8901449 alleged a violation of 30 C.F.R. §
56.14100(a) for the operator’s failure to adequately maintain a load lifting strap.
Id . Citation No. 8901452 alleges a violation of 30 C.F.R. § 56.12008 for
the failure to properly bush a 120-VAC control box. Id . Myers issued
Citation No. 8901451 to Rocky Ridge Custom Crushing LLC alleging a second
violation of § 56.12008, this time in the Shop, for the operator’s failure to
substantially bush a stone saw’s 120-VAC control box. Ex. G–17.

The Respondents allege that MSHA
does not have jurisdiction over either building. They argue that the Garage
performs no work for the Quarry, and that the Shop is explicitly exempted from
MSHA jurisdiction per the MSHA-OSHA Interagency Agreement. Respondents’
Post-Hearing Brief (“Resp. Br.”) at 8-9. The Secretary disagrees, arguing that the
proximity of the Shop and Garage to the Rocky Ridge Quarry and the work being
done in each building is related to milling and within MSHA’s jurisdiction. Secretary’s
Post-Hearing Brief (“Sec’y Br.”) at 8-9.

The parties stipulated, for the
purposes of this case, that if MSHA retains jurisdiction over the Garage and
the Shop, the four citations that comprise the two dockets were properly issued
and valid. Tr. 8-9. Based on the parties’ briefs and my review of the witness
testimony and the entire record, I find that MSHA’s jurisdiction over both
buildings is proper and accordingly affirm all four associated citations.

III.    
CONCLUSIONS OF LAW

A.     The Mine
Act

The Mine Act
provides that “[e]ach coal or other mine . . . and each operator of such mine .
. . shall be subject to the provisions of this Act.” 30 U.S.C. § 803.

The Act defines a “coal or other mine” as

(A)
an area of land from which minerals are extracted in nonliquid form . . . (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 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
the 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).

The legislative history of the Act
indicates that the intention of Congress was that “what is considered to be a
mine and to be regulated under this Act be given the broadest possibl[e]
interpretation.” S. Rep. No. 95-181, at 14 (1977). Congress was clear in its
intent that if any uncertainty existed to whether a facility or site should
come under MSHA jurisdiction, those doubts shall be resolved in favor of
inclusion of a facility within the coverage of the Act. Watkins Engineers
& Constructors , 24 FMSHRC 669, 675-76 (July 2002).

Section 3(h)(1)(C) defines a “mine”
to include “structures” and “facilities” used in “milling” or “the work
of…preparing coal or other minerals.” Id . The section also expressly
grants the Secretary the authority to determine what constitutes “mineral
mining” under the Act. 30 U.S.C. § 802(h)(1); see also Watkins , 24
FMSHRC at 673 (citations omitted). Accordingly, the language of Section 3(h)(1)
“gives the Secretary discretion, within reason, to determine what constitutes
mineral milling, and thus indicates that his determination is to be reviewed
with deference by both the Commission and the courts.” Donovan v. Carolina
Stalite Co. , 734 F.2d 1547, 1552 (D.C. Cir. 1984). The Act does not require
that the structures of facilities be owned by a firm that also engages in the
extraction of minerals from the ground or that they be located on property such
extraction occurs. Id . at 1552. However, the Court of Appeals for the
Sixth Circuit recently held that MSHA’s jurisdiction extends to such structures
and facilities only “if they are in or adjacent to—in essence part of—a working
mine. Maxxim Rebuild Co., LLC v. FMSHRC , 848 F.3d 737, 740 (6th Cir.
2017).

B.      The
MSHA-OSHA Interagency Agreement

To provide further clarification on
the language of section 3(h)(1)(C) the Secretary defined “milling” in the 1979 MSHA-OSHA
Interagency Agreement (“Interagency Agreement”) as “the separation of one or
more valuable desired constituents of the crude [crust of the earth] from the
undesirable contaminants with which it is associated.” 44 Fed. Reg. 22, 827
(Apr. 17, 1979), amended by 48 Fed Reg. 7, 521 (Feb 22, 1983). Appendix
A of Agreement specifies that MSHA’s authority over milling processes include “crushing,
grinding, pulverizing, sizing, concentrating, washing, drying, roasting,
pelletizing, sintering, evaporating, calcining, kiln treatment, sawing and
cutting stone, heat expansion, retorting (mercury), leaching, and briquetting.”
Id . Only one of these activities must be conducted in order for MSHA to
assert jurisdiction over the facility or property. Jermyn Supply Co., LLC ,
39 FMSHRC 1472, 1484 (July 2017) (citations omitted).

Relevant to this case, section 6(a)
of the Agreement identifies that MSHA jurisdiction over milling operations
includes “stone cutting and stone sawing operations on mine property where such
operations do not occur in a stone polishing or finishing plant.” 44 Fed. Reg.
at 22,828. Appendix A further defines “Custom Stone Finishing” to commence at
the point “when milling, as defined, is completed, and the stone is polished,
engraved, or otherwise processed to obtain a finished product and includes
sawing and cutting when associated with polishing and finishing. Id . at
22,830.

However, the Agreement acknowledges
that “there will remain areas of uncertainty regarding the application of the
Mine Act, especially in operations near the termination of the milling cycle
and the beginning of the manufacturing cycle.” Id . Section B(4) provides
that “Under section 3(h)(1) of the Mine Act, 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.” 44 Fed.
Reg. at 22, 828. In resolving these areas of uncertainty, the Secretary should
consider 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 processes
conducted at the facility. Id .

The Agreement thus defers to the language
of section 3(h)(1) instructing the Secretary to “give due consideration to the
convenience of administration resulting from the delegation…with respect to the
health and safety of miners employed at one physical establishment.” Id .
The Secretary’s interpretation of the term is therefore entitled to deference
so long as it is reasonable. See Watkins Engineers & Constructors ,
24 FMSHRC at 673 (holding that Congress explicitly left a gap in section
3(h)(1) of the Mine Act delegating to the Secretary the authority to interpret
what constitutes “milling,” and therefore that interpretation is entitled to Chevron
deference so long as it is reasonable).

IV.    
DISPOSITION

There is no dispute that the Rocky
Ridge Stone Quarry adjacent to the Garage and Shop engages in “milling” as
defined by the Interagency Agreement, and is thus subject to MSHA’s
jurisdiction. Rather, The Respondents contest whether that jurisdiction extends
to the Garage and Shop, respectively.

The Respondent contends that MSHA
does not have jurisdiction over the Jamestown Quarries Garage because it does
not engage in milling on behalf of the Rocky Ridge Quarry, nor does it service
or maintain equipment related to the Quarry. Resp. Br. at 5. The Respondent
argues that the Garage lacks sufficient connection to the Rocky Ridge Quarry because
they are located on different properties and are not owned by the same entity. Id .
The Respondent argues that MSHA does not have jurisdiction over the Rocky Ridge
Shop because the shop constitutes a “polishing or finishing plant” under the
Interagency Agreement and is therefore subject to OSHA jurisdiction. Id .
at 8.

The Secretary counters that the Jamestown
Garage Quarry falls under MSHA’s jurisdiction because it is located adjacent to
the Rocky Ridge Quarry and does in fact provide repair and maintenance services
for the Quarry. Resp. Br. at 9. The Secretary argues that the Rocky Ridge
Processing Shop falls under MSHA’s jurisdiction because it located adjacent to
the Quarry and does not qualify as a “finishing plant” as defined under the
Interagency Agreement. The Secretary maintains that the presence of a single polisher
among other equipment used to break, cut, and size rock classifies the building
as performing “milling” as defined by the Agreement. Id . at 8-9.

Because the jurisdictional issues
differ as to each facility, the court will address them in turn.

A.     The
Jamestown Quarries Garage

The Jamestown Quarries Garage is
primarily used for storage, repairs, and maintenance work for Garrison’s and
Presley’s various other businesses. It does not conduct “milling” as defined in
the Interagency Agreement, and so the issue is whether the Garage constitutes a
“structure” or “facilit[y] used in “milling” or “the work of…preparing coal or other
minerals.” 30 U.S.C. 802(h)(1)(C).

As an initial matter, I reject the Respondent’s
contentions that MSHA’s jurisdiction is improper because the Jamestown Garage
and Rocky Ridge Quarry are owned by separate entities and located on different
property. Resp. Br. at 9. The Act “does not require that [the] structures or facilities
be owned by a firm that also engages in the extraction of minerals from the
ground or that they be located on property such extraction occurs.” See Donovan v. Carolina Stalite Co. , 734 F.2d
1547, 1552 (D.C. Cir. 1984). Even if that were not the case, the Respondents’
alleged ownership distinction is illusory. While Rocky Ridge Stone Company
leased the Garage to Jamestown Quarries, both of those entities, including the
Quarry, are owned by Bedrock Partnership Ownings. Tr. 102. Likewise, the Garage
and the Quarry are adjacent to one another and connected by ownership and by
the access road to the Quarry.

I thus turn to whether the
Jamestown Quarries Garage’s relationship with the Rocky Ridge Quarry subjects
it to MSHA’s jurisdiction. In determining whether the Secretary properly
exercised jurisdiction over the Garage, the court must examine the location
where the cited conduct occurred and the nature of the conduct itself. Maxxim
Rebuild Co., LLC v. FMSHRC , 848 F.3d 737, 740 (6 th Cir. 2017)
(holding that the jurisdiction of MSHA extends only to those facilities and
equipment adjacent to or essentially part of a working mine); s ee also Calmat
Co. of Arizona , 27 FMSHRC 617, 621 (Sept. 2005).

Inspector Myers issued three
citations to Jamestown Quarries pertaining to the improper storage and
maintenance of equipment stored or operated in the Garage. Ex. G–16. In order
to be subject to MSHA jurisdiction, the Garage must have a geographical and
functional relationship with a working mine. The U.S. Court of Appeals for the Sixth
Circuit’s recent decision in Maxxim Rebuild Company, LLC emphasized the
importance of the disputed building’s location relative to a working mine site
in jurisdictional analysis under the Mine Act. Maxxim , 848 F.3d at 740. In
that case, the Court found that MSHA did not have jurisdiction over a shop that
made and repaired mining equipment because it was not located near or part of a
working mine. Id . at 744. The Court held that even though the shop made
and repaired equipment to be used in mining, the Act’s definitions extended
only to things that one would see in or around a working mine and not to
equipment wherever it may be found or made. Id . at 742.

Here, the Jamestown Quarries Garage’s
geographic proximity to and services rendered for the Quarry distinguishes it
from the Maxxim Rebuild shop and suggests that MSHA’s jurisdiction is proper. Unlike
the shop in Maxxim Rebuild , the Garage is located adjacent to the fully
operational Rocky Ridge Quarry and nearby a few other working quarries. Ex. G–2;
Tr. 89, 179. Miners use the same road to access the Garage and the Quarry. Tr. 139-40.

Furthermore, the Garage performs
services related to the work of preparing minerals at the Rocky Ridge Stone Quarry.
First, Jamestown’s mechanics have a consistent presence at the Quarry. See
United Energy Services, Inc. , 35 F.3d 971, 975-76 (4 th Cir.
1994) (holding that a company that maintained a co-generation power plant was
subject to MSHA jurisdiction because its employees worked on the mine property
daily in connection with mine equipment). The mechanics work in the Garage and
travel out to the Quarry to repair or maintain equipment. Tr. 173-75. The Garage
has an MSHA Contractor ID Number so that its mechanics are permitted to perform
the repair and maintenance work at the quarry for over five consecutive days as
required under the Mine Act. Tr. 173-74. The employees also gathered at the
garage when Inspector Myers gave a safety talk during the first inspection. Tr.
20.

Respondents contend that the Garage
only services equipment unrelated to the Quarry. Resp. Br. at 3. However,
Clayborn hedged this assertion at hearing, stating that “Rocky Ridge may have
been serviced at some point in that building at some point in time.” Tr. 150. Inspector
Myers also testified that he had no doubt that the Garage serviced quarry equipment
because of the locational proximity of the sites. Tr. 89.

Even if the Jamestown employees did
not service Quarry equipment in the Garage, they certainly stored Quarry
equipment in it. Aside from the inoperable rock breaker, the Garage houses a service
truck that is used to perform repairs and maintenance at the quarry site,
including welding. Tr. 176. The truck purportedly contains all of the equipment
needed to service equipment at the Quarry, and is stored in the garage. Tr.
176-77. That same truck may service other adjacent mines as well. Tr. 179. These
facts indicate that the Garage is not only adjacent to the active Quarry but
performs services to assist in the Quarry’s milling processes.

The Garage is therefore a facility used in the preparation
of minerals as defined by the Act.

Accordingly, I find that MSHA has
jurisdiction over the Jamestown Quarry Garage and its contents.

B.      The
Rocky Ridge Custom Processing Shop

Unlike the
Garage, there is no dispute that processes labeled as “milling” under the
Interagency Agreement take place in the Rocky Ridge Custom Processing Shop. The
Shop is located adjacent to the Rocky Ridge Stone Quarry and breaks, cuts, saws,
sizes, and polishes and finishes rock that is extracted from the Quarry. The
citation at issue pertains to the saw, and the Secretary normally need only
show that one of the activities listed under the Agreement’s definition of
“milling” takes place in a facility to assert jurisdiction over it. See Jermyn
Supply Co., LLC , 39 FMSHRC 1472, 1484 (July 2017). However, the Interagency
Agreement carves out an exception to MSHA’s jurisdiction when cutting and
sawing stone takes place in a “stone polishing or finishing plant.” 44 Fed.
Reg. at 22, 828. Unfortunately, the Interagency Agreement does not define that
term, and so the dispositive issue is whether the Secretary’s determination
that the Shop is not a “stone polishing & finishing plant” is a reasonable
one. I find that it is.

Respondents contend
that the sign on the door reading “Rocky Ridge Stone Co. Polishing &
Finishing Shop” and the polishing machine are sufficient proof that the Shop is
a “stone polishing or finishing plant” subject to OSHA’s jurisdiction. Resp.
Br. at 8-9. These factors support the Respondents’ position, but the sign and
the polisher are not the only two objects in the Shop that must be considered. The
mere fact that one portion of the Shop could be subject to OSHA jurisdiction does
not necessarily defeat the reasonableness of the Secretary’s determination to
the contrary. Cf. Cranesville Agg. Co. Inc. , 878 F.3d 25, 35 (2nd Cir.
2017).

The makeup and
function of the rest of the Shop suggests that the equipment in the entire
building as a whole is not exclusively dedicated to the finishing process. The Shop
contains two rock breakers and a saw used to cut and size the rock. Tr. 122-24.
 Rocky Ridge does not process all of the rock extracted from the Quarry inside
of the Shop, nor does it finish or polish all of the rock that is broken in the
Shop. Tr. 131-32, 156. While Rocky Ridge undoubtedly finishes and polishes rock
in the Shop, this activity accounts for only a portion of the Shop’s work, and
there is no indication as to how much polishing and finishing takes place in
the Shop in proportion to how much sawing and cutting takes place.

Respondents
point to the Interagency Agreement’s definition of “custom stone finishing” as clearly
including the Shop. See Resp. Br. at 8-9; 44 Fed. Reg. at 22, 828. Yet
the Agreement does not lay out any specific guidelines as to when stone cutting
and sawing ends and polishing or finishing begins, nor to how much finishing
and polishing activity and equipment is necessary to constitute a “polishing
and finishing plant.” What the Agreement does do is explicitly lend the
Secretary discretion in these circumstances. The Agreement explicitly accounts
for areas of uncertainty “in operations near the termination of the milling
cycle and the beginning of the manufacturing cycle” and gives the Secretary the
discretion to expand its definition of milling to include such activities when
geographically or technologically related to milling. See 44 Fed. Reg.
at 22, 828; see also U.S. Quarries Slate Products, Inc. , 24 FMSHRC 124, 129
(Jan. 2002) (ALJ) (deferring to the Secretary’s assertion of MSHA’s jurisdiction
over mine-adjacent buildings holding finishing equipment).

This is clearly
one of those circumstances, and where either MSHA or OSHA jurisdiction may
apply, Commission judges and courts will defer to the Secretary’s reasonable
determination considering the convenience of administration of his agencies. See
Cranesville Agg. Co., Inc. , 878 F.3d 25, 35 (2nd Cir. 2017) (“Because
the Secretary has the 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”); Carolina Stalite Co. ,
F.2d 1547 (D.C. Cir. 1984) (In situations where an entity is deemed to be
subject to either MSHA or OSHA regulations, the Secretary merely engages in an
act of “adjusting the administrative burdens between [his] various agencies”).

Here, the Secretary’s decision to assert MSHA’s
jurisdiction over the Shop is reasonable. While stone finishing and polishing occurs
in the Shop, the breaking, cutting, and sizing processes that take place within
the Shop are technologically and geographically related to the milling process.
See U.S. Quarried Slate , 24 FMSHRC at 129. MSHA asserted jurisdiction
over the Shop in a 2016 letter to the Respondents and already exercises
jurisdiction over the remainder of the Rocky Ridge property. OSHA has never asserted
jurisdiction over or inspected the Shop or any other part of the property. Tr. 154-55,
167-68, 172. His determination therefore aptly considered convenience of
administration in declining to partition jurisdiction over a single facility
between multiple agencies. [4]

Accordingly, I find that MSHA has
jurisdiction over the Rocky Ridge Custom Crushing Shop.

V.        PENALTY

It is
well established that Commission administrative law judges have the authority
to assess civil penalties de novo for violations of the Mine Act. Sellersburg
Stone Company , 5 FMSHRC 287, 291 (March 1983). The Act requires that in
assessing civil monetary penalties, the Commission ALJ shall consider the six
statutory penalty criteria:

(1) the operator’s
history of previous violations, (2) the appropriateness of such penalty to the
size of the business of the operator charged, (3) whether the operator was
negligent, (4) the effect on the operator’s ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of
a violation.

30 U.S.C. 820(i).

As
noted above, the parties stipulated to the validity of the four citations if
the Court affirmed MSHA’s jurisdiction over the Shop and the Garage. Resp. Br.
at 2; Tr. 8-9. Accordingly, the proposed penalties of $116.00 for each of the
four citations are appropriate under section 110(i) of the Mine Act and are
hereby AFFIRMED .

VI.  ORDER

The
three citations in docket SE 2017-252 are AFFIRMED , and Jamestown
Quarries, is ORDERED TO PAY a civil penalty of $348.00 within 30
days of the date of this order. [5]

The
single citation in docket SE 2017-253 is AFFIRMED , and Rocky Ridge
Custom Crushing, LLC, is ORDERED TO PAY a civil penalty of $116.00
within 30 days of the date of this order.

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (U.S. First Class Mail)

Mary Sue Taylor, Attorney, U.S.
Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230,
Nashville, TN 37219

Howard Upchurch, Attorney
for Jamestown Quarries, Law Office of Howard L. Upchurch, P.O. Box 381,
Pikeville, TN 37367

[1] In this decision, the transcript, the Secretary’s
exhibits, and Respondent’s exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex.
R–#,” respectively.

[2] Inspector Myers has been an MSHA inspector for over
11 years, and began inspecting mental/nonmetal mines in 2015. Tr. 13. He has
over 20 years of mining experience. Tr. 14. Myers completed training at the
Mine Safety and Health Academy in Beaver, West Virginia, underwent mine rescue
training and instructor training, and has taught mine safety and foreman
classes. Id . He is a certified underground mine foreman in Kentucky, and
was previously certified as a surface and underground foreman in Virginia prior
to letting the certification lapse. Id .

[3] Inspector Myers could not recall the exact dates of
the first inspection, but noted that it took place approximately a week prior
to the May 8-9, 2017 inspection at issue. Tr. 17.

[4] The Commission has previously noted that adherence to
strict geographical analysis in determining jurisdiction could theoretically
“permit an operator at a facility, where there is both OSHA and MSHA-regulated
work, to escape enforcement of one agency’s regulations by moving the work to
an area of the facility considered to be geographically outside of that
agency’s jurisdiction.” See Calmat Co. of Arizona , 27 FMSHRC 617, 621
(Sept. 2005). As in the Calmat case, there is absolutely no allegation
that such conduct has occurred here. Nonetheless, the court is mindful that
strictly requiring the Secretary to divide a single building between MSHA and
OSHA jurisdiction would increase the potential for such behavior.

[5]
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390