Titan Constructors, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Titan Constructors operated a portable crusher and a concrete batch plant on the same property, with both operations using parts of a shared shop. Titan argued that OSHA, not MSHA, controlled the shop because it was built for the batch plant. Judge Richard W. Manning held that the shop areas, tools, supplies, and restroom used or available for the crusher operation were part of the mine, while items used exclusively for the batch plant remained outside MSHA jurisdiction. Titan had stipulated that it would withdraw its contest if Mine Act jurisdiction existed, so the judge affirmed the eleven shop citations and orders and approved settlements of thirteen other matters. He assessed total penalties of $8,844.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(h)(1) and 803
• Outcome: Eleven shop citations and orders were affirmed, thirteen other matters were settled, and total penalties were $8,844.
• Key point: A shop serving an OSHA-regulated batch plant also falls within Mine Act jurisdiction to the extent its facilities and supplies are used or available for mining equipment.

Full text (FMSHRC public release)

FMSHRC ALJ Decision s

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th Street, Suite 443

Denver, CO 80202-2500

303-844-3577/FAX 303-844-5268

February 7, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

TITAN CONSTRUCTORS, INC.,

Respondent 

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CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2010-53-M

A.C. No. 26-02567-196388-01

Docket No. WEST 2010-54-M

A.C. No. 23-02567-196388-02

Titan Constructors Products

DECISION

Appearances:              Tyler P. McLeod, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;

Mark Wray, Esq., Law Offices of Mark Wray, Reno, Nevada, for
Respondent.

Before:                        Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against Titan Constructors (“Titan”) pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”). The parties introduced
testimony and documentary evidence at a hearing held in Henderson, Nevada. In lieu of filing
post-hearing briefs, the parties presented oral argument at the hearing.

Prior to the hearing, the Secretary submitted a Motion for Partial Summary Decision and
Memorandum of Points and Authorities on October 25, 2011. Titan submitted its Response to
Secretary’s Motion for Summary Decision and Supporting Points and Authorities on November
9, 2011. By Order dated November 10, 2011, I denied the Secretary’s Motion for Partial
Summary Decision because there were genuine issues of fact in dispute. 29 C.F.R. §
2700.67(b)(1). The hearing was held on December 11, 2011.

Titan owned and operated a portable crusher that had been moved to several locations in
eastern Nevada. In addition, Titan owned and operated a concrete batch plant. In 2007, Titan
moved the portable crusher to the property where the concrete batch plant is located.

These
cases involve nineteen section 104(a) citations, one section 104(d)(1) citation, and four 104(d)(2)
orders of withdrawal. The parties have settled two orders and eleven citations. (GX-10)

. The
remaining nine citations and two orders allege violations that occurred in or in relation to the
shop that is in the same building as the batch plant. Titan stipulated that, in the event the court
should find that the shop was subject to jurisdiction of the Mine Act, it would withdraw its
contest as to the charging documents. (JX-1, ¶ 3). As a consequence, the sole issue before me is
whether this shop area inspected by the U.S. Department of Labor’s Mine Safety and Health
Administration (“MSHA”) was subject to the jurisdiction of the Mine Act.

I. BASIC LEGAL PRINCIPLES

Section 4 of the Mine Act provides, in part, that “each coal or other mine . . . shall be
subject to the provisions of this Act.” 30 U.S.C. § 803. Section 3(h)(1) of the Act, in pertinent
part, defines “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 . . . 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 . . . . 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).

In order to effectuate the “convenience of administration,” MSHA and OSHA entered
into an interagency agreement, which attempts to delineate the areas of authority and to provide a
procedure for resolving general jurisdictional questions between the two agencies (“Interagency
Agreement”). 44 Fed. Reg. 22,827 (April 17, 1979).

The legislative history of the Act indicates that the Act’s definition of a mine is to be
broadly interpreted. The Senate Committee responsible for drafting the Mine Act remarked:
“What is considered to be a mine and to be regulated under this Act [shall] be given the broadest
possible interpretation, and it is the intent of this Committee that doubts be resolved in favor of
inclusion of a facility within coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in
Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine
Safety and Health Act of 1977 (“Legis. Hist.”) at 602.

II. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

On August 5 and 6, 2009, MSHA Inspector James Fitch inspected Titan’s facilities and
issued eleven citations and orders related to the area on the property that he referred to in the
citations as the shop. Titan contends that the shop area is not subject to Mine Act jurisdiction.
By contrast, the Secretary maintains that the Mine Act, Commission precedent, and the
Interagency Agreement establish that MSHA had jurisdiction over the shop at the time of the
contested inspection.

A. Background Summary of Testimony

Inspector Fitch has worked for MSHA since January 2001 and is currently a supervisory
inspector. (Tr. 11). Fitch testified that he began working in the mining industry in 1980 and
worked in the industry until the present inspection, stopping a few times to serve in the Army and
to work as a car salesman. (Tr. 12-14). Fitch had never inspected the Titan facilities before;
however, he testified that MSHA inspected Titan in 2008 and that he reviewed the prior
inspection report and field notes before performing his inspection. (Tr. 17, 20-22).

On August 5, 2009, Inspector Fitch arrived at the site and pulled up in front of the shop
area. (Tr. 22). He described the structure as large, with bay doors and a man door, and assumed
that the structure contained an office. Id. When he arrived, he noticed a conveyor belt lying
beside the main road, old equipment including a trailer, and in front of the shop, he saw one or
two vehicles. (Tr. 24). Facing the shop area, to the left, was a small friction crane, several
stockpiles, and a road leading from the shop area back around the stockpiles. (Tr. 25). He did
not see any other structures or buildings. Id. At this point, Shane Cooper, Titan’s president,
arrived and they went into the office and talked a bit. (Tr. 26; Tr. 151). Fitch stated that he
thought he was in the office because it was a small, enclosed space inside the same building but
separated by walls, doors, and a window. (Tr. 27). He noted that the room contained a table,
computer, shelves, and chairs and explained that there were no other areas in the structure that
looked like an office. Id. Fitch testified that mines are required to have an office. Id.

Upon exiting the office into the shop area, Fitch stated that there was a first-aid kit, eye-wash bottles and a fire extinguisher and off to the left was a batch plant. (Tr. 28). To the right,
at a back wall of the shop, were bolt pins, shelves with equipment, parts, V-belts, and some tires
located in the front right of the shop. (Tr. 28). Fitch observed that the tires belonged to haul
trucks. Id. He also saw a fabrication table, a cabinet containing hand tools, drills, grinders,
cords, parts, scrap metal, trash, and a “curious” square wooden structure that was the shop
restroom. (Tr. 28-29). Fitch testified that mines are required to have a bathroom. (Tr. 29). He
explained that the front left corner of the building was the office and behind that and to the left
was the batch plant, which appeared to be portable. (Tr. 29). Fitch stated that the batch plant
was not subject to MSHA jurisdiction pursuant to the Interagency Agreement. (Tr. 30).  

After leaving the shop area, Fitch inspected the working portion of the mine site and
returned to the shop the next day. (Tr. 32). He estimated that the shop and the plant area are less
than 500 yards apart. (Tr. 34). Fitch issued his first citation for two unsecured acetylene bottles
standing in front of the bay doors and explained that he believed he had jurisdiction to do so due
to the proximity of the shop to the plant and the large haul truck down for maintenance in front of
the shop. (Tr. 38-39). He testified that he believed three people worked on the mining
operations: Kenny, Shane, and Zach Cooper. (Tr. 44-45).

Fitch testified that the equipment he observed at the site included a generator, an
electrical control trailer, two screens, a feed hopper, at least five conveyors, a log washer, an
electrical distribution panel, a Caterpillar loader, a broken-down Caterpillar loader, possibly a
backhoe, and a friction crane. (Tr. 45). The record contains photos of the site, as described by
Fitch, which appear in the record at GX-2. (Tr. 46-49). Fitch also described many of the items
needed to maintain this equipment and testified that these items were stored in the shop area.
(Tr. 49-50). Fitch testified that except for the tires and the batch plant, which he did not consider
to be part of the mining operations, the rest of the materials inside the shop could have easily
been used on the mine site and anyplace else. (Tr. 51-52).

Referencing the photos taken in support of each of the eleven citations from the shop,
Fitch stated that the 55 gallon barrels of oil, some parts on the shelves, V-belts, nuts and bolts, oil
and lubricants, acetylene tanks, parts to the haul truck, a man-basket which was missing from the
shop, and the restroom are all items that could be used in a mining operation and/or are required
by the safety standards. (Tr. 52-62).

Inspector Fitch related the citations to the photos as follows: messy workplace (Citation
No. 6357687), spilled oil on the shop floor (Citation No. 6357689), acetylene cylinders in front
of shop bay doors (Citation No. 6357679), an unapproved, flammable storage can (citation
6357685), a missing, required man-basket (Citation No. 6357686), “no smoking signs” not
posted (Citation No. 6357688), two unlabeled jerry cans (Citation No. 6357690), an extension
cord with a missing ground prong (Citation No. 357691) and a head grinder with missing guard
(Citation No. 6355701)

. (Tr. 53-61; GX-3).

Inspector Fitch also discussed citations that were issued outside of the shop area for
guarding violations; specifically, Citation Nos. 6357681, 6357695, 6357697, 6357698, and
6357700. (Tr. 63-69). He explained that in order to abate these citations, guards for the
referenced parts needed to be fabricated. He assumed that the fabrication work necessary to
abate these citations would have been performed in the shop, although Citation No. 6357698
might be repaired in the field. (Tr. 66-68). Fitch testified that the workers he observed had
access to all of the referenced shop areas and explained that there was no lock on the door. (Tr.
70). He also stated that no one told him that the shop area was not used in connection with the
mining operation and that during a previous inspection, MSHA issued a citation for an
uninspected fire extinguisher. (Tr. 70-72). This citation is now closed and became a final order
on February 6, 2010. (Tr. 74, GX-6).

On cross-examination, Fitch testified that he knew that the portable crusher had only
operated five days since the last MSHA inspection in 2008, and that, when he looked at the area
of the shop where the tires and batch plant were located, he knew that those were not within his
jurisdiction. (Tr. 85). He considered the rest of the area to be within his jurisdiction because it
could have been used for mining and was likely to be so used. Id.

Fitch testified that he did not know when the portable crusher was moved to the Ready
Mix Property. The storage areas and the tools in the shop made him believe that the area was to
function as a shop. (Tr. 85-86; 94). He admitted that the proximity of the shop to the portable
crusher could have been a contributing factor in why he issued the shop citations. (Tr. 88-89).
Fitch remarked that, if an item was used strictly for the batch plant, then it would be part of the
batch plant only. (Tr. 97-100). Fitch stated that, if the portable crusher did not exist on the
property, then MSHA would not have jurisdiction. (Tr. 103).

Fitch explained that he wrote the citations for the shop instead of leaving it to OSHA
because he saw conditions that violated MSHA’s safety standards.

He determined that miners
could easily and probably did go into the building to use the restroom, to get parts, and to repair
mining equipment. (Tr. 107). Fitch testified that the three main things that he thought made the
shop part of a mine were the existence of the office in the building, the existence of the restroom,
and the existence of tools, lubricants, and parts that could easily be used for a mine site. (Tr.
112). Fitch admitted that he did not know objectively whether a particular tool or a part was used
on the portable crusher but that he suspected they had been. (Tr. 114).

Inspector Fitch testified that the location of the shop in relation to the crushing plant
made it more likely that a person would go to the shop for a part or to work on equipment, than
drive to Ely, Nevada, to do so. (Tr. 115). He noted that the company did not offer any proof
during his inspection that the shop was used solely for the construction business. (Tr. 117).
Fitch stated, that if the portable crusher were ever moved to a different location and no mining
equipment were used or repaired at the Ready Mix Property, MSHA would no longer inspect that
shop. (Tr. 124). He stated that he believed the haul truck outside of the building was purchased
for use in the mine, although he admitted that no one told him this directly. (Tr. 125-126). Fitch
testified that the mine was not operating that day and stated that the things he saw in the shop
could also be used for purposes other than mining. (Tr. 127, 133-134).

Fitch stated that nothing in the shop indicated what items in the shop area were for the
mining operation and what items were for the batch plant. (Tr. 141-43). Fitch noted that
MSHA’s policy would be that once a piece of equipment enters the mine property itself, it is
subject to MSHA’s jurisdiction if it had been used at the mine. Id. Fitch testified that what he
termed “daily job briefings” were kept in the office. (Tr. 146).  

Shane Cooper, President of Titan, testified that he and his brother Kenny are the
principals of Titan and explained that the Ready Mix Property is a parcel of 40 acres with a 60-by-110 foot steel, prefabricated metal building with a batch plant. (Tr. 152). Cooper testified
that the property is seven miles north of Ely, that the batch plant and shop were on the property
when his family bought it but the portable crusher was not at that location. (Tr. 154-155).
Cooper testified that the office and the computer inside it were specifically constructed for the
batch plant. (Tr. 156). He stated that the records for the portable crusher are kept at his home
rather than in the batch plant office. (Tr. 157).

Cooper testified that during the inspection, he had to leave and go home to get the records
requested by Inspector Fitch. (Tr. 159). Cooper stated that Titan Constructors purchased the
Ready Mix Property out of bankruptcy in October 2007. (Tr. 160-162). The portable crusher
was moved in 2006 from an unrelated location near Ruth, Nevada, first to his home and then to
the Ready Mix Property in 2007. (Tr. 165-166). Cooper testified that he would use the restroom
facilities in the building on a day when Titan was using the portable crusher. (Tr. 168). He
admitted that employees could easily use a bolt or oil from the shop for the portable crusher. He
could not state that there has never been anything in the shop that has been used on the portable
crusher. (Tr. 167-168).

Cooper stated that the shop building is subject to the jurisdiction of NVOSHA. (Tr. 168).
He admitted that Titan can build guards for the portable crusher in the shop and use the shop to
fabricate other parts for the crusher. In addition, the oxygen acetylene carts and the welder can
be moved over to the crusher for use in repair work. (Tr. 169). He testified that the building was
custom fabricated for the batch plant itself. (Tr. 171). Cooper stated that everything in the shop
is related to the construction industry, that the trucks are used to haul aggregates, equipment, and
for installing underground water and sewer mains, and that the dump truck has never operated in
any capacity because it had and still has a damaged engine. (Tr. 174-176).

Cooper testified that Titan has a 40-foot van that typically accompanies the portable
crusher when it is moved around. (Tr. 181). He explained that the van is essentially a shop van
and that it contains steel benches, a table, shelving, nuts, bolts and hand tools. (Tr. 184-185). He
parked this van at his home when the crusher was moved to the Ready Mix Property. On cross-examination, Cooper admitted that the Steptoe Valley Pit is the same parcel of land as the Ready
Mix Property and that the portable crusher has been located at the property since about 2007.
(Tr. 186-187). He testified that Titan does use the shop tools and the stored materials, nuts and
bolts for the portable crusher, which is why Titan did not need the van on the property. (Tr. 188).

Cooper testified that Titan kept the daily job briefings, as required by MSHA regulations,
in the batch plant office and that they were produced for Inspector Fitch. (Tr. 190). He also
noted that the top of the daily job briefing form indicates that the job location is the Steptoe
Valley pit. (Tr. 190, GX-11). Cooper reviewed the daily job briefings and testified that one
listed work procedure was “built guards for stacker.” (Tr. 191-192, GX-11). He testified that
this work was performed at the Ready Mix shop and also that the welder and torches have been
moved to the stacker. (Tr. 192). Cooper noted that on the form under “recognized hazards” it
says, “hot steel, cutting, welding.” (Tr. 193). He admitted that the welding tools are kept at the
Ready Mix Shop or in the van that goes with the portable crusher. Id.

Cooper testified that he was not aware that MSHA regulations require a mine office and
stated that Titan did not have one. (Tr. 194-194). He testified that the computer is used for the
batch plant, not for any mining purposes, and that it is specific to the batch plant. (Tr. 194). He
testified that Titan sells aggregates used in road building to the Nevada Department of
Transportation. (Tr. 195). In terms of the equipment associated with the crushing operations,
Cooper testified that Titan has a couple of screens, conveyor belts, stackers, a loader, and a
rubber tire backhoe. (Tr. 196).

Cooper testified that customers come onto the property with their own trucks to be loaded
with aggregate and that the loads were generally sold by volume. (Tr. 197). He stated that there
is no separate scale house. (Tr. 198).

B. Summary of the Parties’ Arguments

The Secretary argues that Titan used the shop in its mining operation and that miners
accessed the shop. Consequently, the Secretary submits that the shop constituted a “structure” or
a “facility” used in the mining process, as contemplated by Section 3(h)(1), which subjected it to
MSHA’s jurisdiction. (Sec’y MSD 6).

The Secretary points out that the shop was only 350 feet away from the pit and within
walking distance to it. (Sec’y MSD 8). The Secretary also notes that the shop served several
functions, including storage, repair, and fabrication of mining equipment, maintenance and the
keeping of records, and also included toilet facilities for the miners. (Sec’y MSD 9). The
Secretary argues that simply by location, Titan’s miners had access to the shop, even if only to
use the restroom facilities. Id. The Secretary further contends that the shop was used to some
degree by miners to support the mine process, including storing tools and equipment, repairing
and fabricating items for the mine, and keeping and maintaining mine records. Id.

The Secretary argues that the Interagency Agreement establishes MSHA jurisdiction over
the shop and cites the provision of the Agreement which provides “[t]he consideration of these
factors will reflect Congress’ intention that doubts be resolved in favor of inclusion of a facility
within the coverage of the Mine Act.” (Sec’y MSD 10). Thus, the Secretary reasons, both work
locations and work functions are important factors in determining jurisdiction. Id. The Secretary
points out that Inspector Fitch observed a haul truck from the pit, that functioned to haul material
from the mine at the Titan shop, undergoing maintenance. (Sec’y MSD 11). In addition,
Inspector Fitch found supplies and equipment stored throughout the shop, all of which functioned
to keep equipment at the mine in working condition. Id. Consequently, because the shop was
used for mining, any doubts about jurisdiction should be in favor of inclusion of the facility
under the Mine Act. Id.

During closing arguments, the Secretary argued that, although the shop building was not
originally built to support a sand and gravel operation, the fact of the matter is that there is a sand
and gravel operation located there. (Tr. 200). The Secretary argued that the miners are Titan
employees who work at the crusher operation and who, by necessity, access the shop. The use
of the shop by these miners essentially opens the door for MSHA to inspect the facility and to
issue citations for violations. Id.

In response, Titan argued that the shop area is used for the batch plant located inside of it
and that Titan is a construction company which, in addition, operates a portable crusher. (Titan
RMSD 2). Titan contended that there is no mine office in the shop and that mining-related
records are kept in the owner’s home, not in the shop. Id. Titan submitted that the haul truck
parked outside the bay doors has never been used by Titan in any capacity and was never used in
a pit operation. Id. Titan further argued that no materials are used in interstate commerce, the
parts and tools in the shop could be used for anything on the Ready Mix Property but are used for
Titan’s vehicles and construction equipment. It further argues that there is no proof that miners
use the toilet located in the shop. Id.

Titan contended that the Ready Mix Property contains a shop building that was
constructed for the batch plant within it and that the shop tools and equipment were used for the
batch plant years before the portable crusher was moved to the Ready Mix Property. Id. Titan
also argued that the bay doors are configured for ready mix trucks and semi-trucks, not for
portable crushers and that the shop was never considered part of a “mine” before the 2009
inspection by Inspector Fitch.

Titan argued that the standards for determining whether a shop can be part of a mine
cannot be so expansive that they amount to no standards at all and cites “National Cement Co.
of California/Tejon Ranchcorp,”

in which the Commission observed that although the definition
of a mine was to be given a “very broad meaning,” that “does not mean that section 3(h)(1)(B)
should be read contrary to common sense.”

(Titan RMSD at 3). Titan argued that where the
Secretary is urging a “standard” that is so broad that it amounts to no standards at all, the
Secretary is exceeding the bounds of her jurisdiction. Id.

Titan contended that none of the factors cited by the Secretary from the Interagency
Agreement support MSHA jurisdiction in this case. Id. Specifically, Titan stated that the
processes employed at Titan’s shop is a concrete batch plant, unrelated to the portable crusher,
that two people operate the portable crusher, and that no people operate the shop. Id. at 4.
Finally, Titan argued that there is no evidence as to NVOSHA’s inability to enforce safety
precautions at the shop. Id.

During closing arguments, Titan stated that the net drawn by MSHA is cast far and wide
and that this case is an example of that. (Tr. 202). Titan argued that the shop is not part of the
mine, that NVOSHA has jurisdiction, and that the Interagency Agreement specifically says that
batch plants are under OSHA’s jurisdiction. (Tr. 203). Titan contended that if the Secretary’s
arguments are adopted and the Mine Act is construed to mean that inspectors can inspect
anything if it “might” be used in a mine, such a construction is inconsistent with Congressional
intent. (Tr. 203-304).

Titan argued that its witnesses were credible but MSHA displayed its bias when its
inspector testified falsely concerning the location of the company documents related to the
crushing operations and the usage of the cited truck in the pit. (Tr. 204). Titan emphasized that
in the Bokus case, cited below, the Commission did not reach the issue of whether the garage in
that case constituted a mine but limited its holding to items that the Secretary proved were
actually used in mining operation. (Tr. 205).

Titan argued that the entire property on which a portable crusher is used should not
become a mine as that term is defined in the Mine Act. (Tr. 207). Titan further argued that the
shop building is, and always has been, a batch plant, that everything inside it is there for the
batch plant, and that the Commission’s decisions are consistent with Titan’s arguments. (Tr.
208).

C. Discussion and Analysis

Titan contends that the shop area of its facility is not subject to Mine Act jurisdiction
because it is used for the batch plant located inside the same building. More specifically, Titan
argues that, because the shop was originally constructed for the batch plant and that the shop
tools and equipment were used for the batch plant years before the portable crusher was moved to
the Ready Mix Property, NVOSHA, not MSHA, has jurisdiction. I disagree. 

As stated above, section 3(h)(1) of the Mine Act defines a “mine,” in pertinent part, to
include “structures, facilities, equipment, machines, tools, or other property . . . used in or to be
used in, . . . the work of extracting . . . minerals . . . or . . . the milling of such minerals, or the
work of preparing . . . minerals . . . .” 30 U.S.C. § 802(h)(1). The Secretary promulgated the
Interagency Agreement as a guide to be used when determining whether certain operations and
facilities fall under the purview of MSHA or OSHA. Appendix A of the Interagency Agreement
specifically provides that concrete ready mix or batch plants, whether or not located on mine
property, are subject to OSHA jurisdiction. 44 Fed. Reg. 22,827 (April 17, 1979).

The Secretary did not argue in this case that MSHA has jurisdiction over Titan’s batch
plant or any supplies, equipment, machines, tools or other property that are used exclusively for
the batch plant. The Mine Act does not directly address the situation raised in which “structures,
facilities, equipment, machines, tools or other property” that are used for a facility that is not
subject to the jurisdiction of the Mine Act, are also used or available for use in a mine.
Commission precedent establishes that when equipment or facilities are available for use by
miners, such equipment and facilities must comply with MSHA safety standards. See, e.g., W.J.
Bokus Indus.,16 FMSHRC 704 (Apr. 1994); Beylund Constr., 31 FMSHRC 1410 (Nov. 2009)
(ALJ) (citing Ideal Basic Indus., Cement Div., 3 FMSHRC 843 (1981)). Thus, the Secretary need
only establish that the items were available for use in mining. 

Titan’s president, Shane Cooper, testified that Titan used tools and materials from the
shop, such as nuts and bolts, for its portable crusher. (Tr. 188). There is no question that the
portable crusher falls under MSHA’s jurisdiction and it has a mine ID number. In addition, the
record further establishes that miners working on the crusher used the shop tools, including a
welder, torches, and an oxygen acetylene cart to fabricate guards for the crusher, and utilized the
restroom that is located in the shop. (Tr. 169, 191-192; GX-11). That the shop was originally
designed for a batch plant and is predominantly used for the batch plant, does not mitigate the
fact that some mining-related activity occurs at the shop. As described above, the evidence
shows that items related to the portable crusher are located in the shop and that miners have
access to these shop items and use them for the portable crusher.

In resolving close jurisdictional questions, the legislative history of the Act provides
additional guidance. The Senate Committee that drafted the Mine Act noted that what is
considered to be a mine and to be regulated under the Act should be given the broadest possible
interpretation. Legis. Hist. at 602. Moreover, the Committee further commented that
jurisdictional doubts should be resolved in favor of inclusion of a facility within the coverage of
the Act. Id. This expansive, encompassing definition of what constitutes a mine reflects the
Act’s purpose of protecting the health and safety of those who work in the coal mining industry.
30 U.S.C. § 801.

When the portable crusher was located on property near Ruth, Nevada, without a readily
available shop, the company’s shop van was located on that property for use by miners. When
Titan moved the portable crusher to the Ready Mix Property, it elected to allow miners to use the
existing batch plant shop rather than bring the van to the Ready Mix Property. (Tr. 185). In
doing so, Titan subjected at least part of its shop to Mine Act jurisdiction. The van was parked at
Shane Cooper’s home. (Tr. 185). Moreover, Cooper admitted that Titan used tools in the shop
when repairing the crusher, fabricated parts for the crusher in the shop, and used miscellaneous
supplies, such as nuts and bolts stored in this shop, for the crusher. (Tr. 184-189). That is why
the shop van was not brought to the Ready Mix Property.

By allowing miners working on the crusher to access the shop to get supplies, to fabricate
and repair parts, and to use the restroom facilities, Titan opened the shop to MSHA jurisdiction.
The shop ceased to be used exclusively for the batch plant and instead became a facility used for
both mining-related and non-mining-related operations.

Titan next states that “[t]wo people operate the portable crusher and no people operate the
shop.” (Titan RMSD at 4). This is irrelevant. Commission precedent establishes that both work
locations and work functions are important in determining jurisdiction. Calmat Co. of Ariz., 27
FMSHRC 617, 621; W.J. Bokus Indus., 16 FMSHRC 704 (Apr. 1994). As the shop tools and
facilities were used in, could be used in, and were available for use in Titan’s mining operation,
they are covered by the Mine Act.

Finally, Titan submits that “there is literally no evidence as to OSHA’s alleged inability
to enforce safety precautions in the shop.” (Titan RMSD at 4). The Secretary has admitted that
it has no jurisdiction over the concrete batch plant and anything in the shop that relates strictly to
the batch plant. Nevertheless, MSHA, not OSHA, is charged with regulating the safety and
health of the nation’s mining operations. MSHA has the expertise to oversee the safety and
health hazards associated with the mining processes at Titan’s facility. Because miners had
access to the shop, used shop tools and equipment to fabricate and repair mine equipment, and
had access to and utilized the shop restroom facilities, I find that the Secretary established Mine
Act jurisdiction over those areas of the shop that are used for the mining operation.

Titan also raised a commerce clause issue, arguing that the products from the crusher do
not enter into interstate commerce. The Secretary maintains that the evidence demonstrates that
the products produced in Titan’s mining operation substantially affect interstate commerce. The
Mine Act defines “commerce” as: “trade, traffic, commerce, transportation, or communication
among the several States, or between a place in a State and any place outside thereof . . . or
between points in the same State but through a point outside thereof.” 30 C.F.R. § 802(b). I find
that the record establishes that the materials produced by Titan’s crushing operation were supplied
to the Nevada Department of Transportation under highway maintenance contracts. (Tr. 180). As
all manner of vehicles, private and commercial, from all over the United States, traverse the roads
in Nevada, Titan’s products are effectively used by these interstate vehicles. To argue that
materials sold to a state for its roads do not affect interstate commerce defies common sense.
Thus, I find that Titan’s mining operation substantially affects interstate commerce within the
meaning of the Act.

As set forth above, I find that the Secretary established Mine Act jurisdiction over those
parts of the shop that were used or reasonably could be expected to be used by Titan’s employees
for the mining operations. Moreover, as previously noted, Titan stipulated that if I were to find its
shop was subject to the jurisdiction of the Mine Act, it would withdraw its contest as to the
charging documents. (Ex. JX-1). On the basis of this stipulation, I affirm the citations and orders.

III. SETTLED CITATIONS

The parties presented a settlement offer at the hearing for those citations that issued at the
crusher. The proposed settlement is as follows:

Citation/Order No.

Modification to Citation

Proposed Penalty

Amended Penalty

WEST 2010-53-M

6357684

Modify to 104(a)

High Negligence

$2,000

$1,000

6357699

Modify to 104(a)

High Negligence

$2,000

$807

6357702

Modify to 104(a)

Moderate Negligence

$2,000

$500

WEST 2010-54-M

6357680

No Change

$100

$100

6357681

Modify to Moderate

Negligence

$100

$100

6357682

Modify to Moderate

Negligence

$100

$100

6357683

Modify to Moderate

Negligence

$161

$100

6357694

No Change

$100

$100

6357695

Modify to Law

Negligence

$100

$100

6357696

Modify to Low

Negligence

$100

$100

6357697

No Change

$100

$100

6357698

Modify to Low

Negligence

$100

$100

6357700

Modify to Unlikely

Non S&S

$362

$300

TOTAL

$3,507

IV. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. Titan is a very small operation that, based on information at MSHA’s
website, worked 164 hours in 2009 and 385 hours in 2010. The operation is currently idle. It had
a history of about 12 citations in the 15 months prior to August 5, 2009. Titan did not assert that
the penalties proposed by the Secretary would have an adverse effect on its ability to continue in
business. The gravity and negligence findings are set forth above or in the citations.

V. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties as stipulated by the parties:

Citation/Order No.                  30 C.F.R. §                             Penalty Amount

WEST 2010-53-M

6357687                      56.20003(a)                             $2,000.00

6357689                      56.4102                                      2,000.00

WEST 2010-54-M

6357679                      56.16005                                       243.00

6357685                      56.4402                                         100.00

6357686                      56.15001                                       108.00

6357688                      56.4101                                         243.00

6357690                      47.41(a)                                        100.00

6357691                      56.12025                                       100.00

6357692                      56.12028                                       243.00

6357693                      47.31(a)                                        100.00

6357701                      56.14107(a)                                  100.00

Total penalty citations/orders issued in shop:              $5,337.00 

GRANT TOTAL DUE:                                              $8,844.00

For the reasons set forth above, the citations and orders are AFFIRMED or MODIFIED
as set forth in this decision. Titan Constructors, Inc., is ORDERED TO PAY the Secretary of
Labor the sum of $8,844.00 within 40 days of the date of this decision.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Tyler P. McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202-5708

Mark Wray, Esq., Law Offices of Mark Wray, 608 Lander Street, Reno, NV 89509

RWM