FMSHRC ALJ Decision

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

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.

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.

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.

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.

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).

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).

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.

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

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.

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:

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.

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