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[DOCID: f:w-95-201.wais]

 
AGGREGATE PRODUCTS INC.
May 20, 1996
WEST 95-201-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268


                          May 20, 1996

SECRETARY OF LABOR,         :    CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),    :    Docket No. WEST 95-201-M
          Petitioner        :    A.C. No. 04-04678-05522
                            :
                 v.         :    Docket No. WEST 95-496-M
                            :    A.C. No. 04-04678-05523
AGGREGATE PRODUCTS INC.,    :
          Respondent        :    API Pit & Plant

                            DECISION

Before:  Judge Manning

     These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against Aggregate
Products, Inc. ("API"), pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1988)("Mine
Act").  The petitions allege seven violations of the Secretary's safety
regulations.

     The parties filed a joint stipulation of facts
in lieu of presenting evidence at a hearing.  The only issue
in the case is whether MSHA has jurisdiction overAPI's screening plant.
This issue was fully briefed by the parties.  For the reasons set forth
below, I find that MSHA does have jurisdiction over the screening plant.
Accordingly, I assess penalties in the amount of $380.00.

                I.  STIPULATED FACTS

The parties presented the following stipulated facts:

1.  The citations in this proceeding are true and accurate
in their statement of conditions existing at Aggregate
Products Inc., screening plant.

2.  The said proposals were duly filed against Respondent in
accordance with the Rules of the Federal Mine Safety and
Health Review Commission published in Title 29, Code of
Federal Regula- tions, Section [2700.25] and duly contested.

3.  Respondent has contested the instant violations on the
basis of MSHA's alleged lack of jurisdiction over the
Screening Plant operated by API, and in the context of said
contest has sought a formal legal opinion to that effect.

4.  OSHA is not asserting jurisdiction over the subject
screening plant, and has not issued citations or inspected
API's screening plant.

5.  The Civil Penalties as proposed will not adversely
affect the operator's ability to remain in business.

6.  The citations in this proceeding were timely abated by
the respondent in good faith.

7.  John Corcoran, President of Aggregate Products, Inc.,
owns the property on which the extraction, milling, and
asphalt operations are situated.

8.  The contractor, DCL hired and paid by API, is respon-
sible for the initial extraction process of the material.
DCL operates its own equipment including front-end loaders,
crusher, and conveyors.

9.  DCL produces crushed sand and gravel for API according
[to] size specifications mandated by API.  DCL employs
approxi- mately three to four employees in this operation.
The material produced by DCL is stockpiled for use by API.

10. API employs approximately 15 to 20 employees in its
operation which consists of a screening plant and asphalt
plant.

11. API, using API employees and equipment, transports the
crushed material by use of a front-end loader from the
stockpile provided by DCL to the Screening Plant feed bin
operated by API.  The screening plant is located
approximately 300 feet from the DCL stockpile.  The material
is then conveyed approximately 80 feet to the top of the
Screening Plant where it is processed into the size
necessary for the production of Asphalt.

12. The screening plant owned and operated by API screens
the crushed sand and gravel into specific sizes required for
the Asphalt operation.  The Screening Plant is a 6' X 16'
"Simplic- ity" Screening Plant consisting of three screening
decks for the required size and several conveyors which
transport the sized rock to their respective stockpile.
Normally, there are four separate stockpiles consisting of
3/8, 1/2, 3/4 inch size rock for use in the Asphalt Plant
[for] the production of asphalt.

13. API collects the appropriate sized rock and deposits the
rock in the required cold feed bin for mixing with the
Asphalt Operation.

14. Approximately 1% to 4% of the material from these spe-
cific stockpiles is sold to the consuming public.  The
remainder is sold to other contractors or used within the
asphalt  operation.

             II.  SUMMARY OF THE PARTIES' ARGUMENTS

A.  Secretary of Labor

The Secretary argues that the definition of the term "coal
or other mine" in section 3(h)(1) of the Mine Act should be
broadly construed to include Respondent's screening plant.
He argues that Respondent's screening plant is a mill that
sizes the material mined by DCL.  He contends that a
screening plant need not be owned by the same firm that
extracts the minerals for Mine Act jurisdiction to attach.
In making its arguments, the Secre- tary relies upon the
Interagency Agreement between the Occupa- tional Safety and
Health Administration ("OSHA") and MSHA.  44 Fed. Reg. 22827
(April 17, 1979) and several court decisions that discuss
Mine Act jurisdiction.

B.  API

API contends that the mining and milling cycle consists of
the extraction of the material, the crushing and screening
of the material by DCL, and the storage of the crushed and
screened product by DCL in a stockpile.  It believes that
the hot-mix asphalt cycle begins when the previously milled
material arrives at API's hot-mix screening facility for
refining to the grade necessary for asphalt.  Thus, it
contends that Mine Act juris- diction ends at DCL's
stockpile of crushed aggregate.  API argues that its
screening plant is incident to and part of its manufac- ture
of hot-mix asphalt and is not subject to MSHA jurisdiction.

III.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

The starting point for any analysis of Mine Act jurisdiction
is the definition of coal or other mine.  A coal or other
mine is defined, in pertinent part, as:  "(A) an area of
land from which minerals are extracted ..., (B) private ways
and roads appurte- nant to such area, and (C) lands,
excavations ... structures, facilities, equipment, machines,
tools, or other property ... used in, or to be used in the
work of milling of such minerals, or the work of preparing
... minerals."  30 U.S.C. � 802(h)(1).

The Senate Committee that drafted this definition stated its
intention that "what is considered to be a mine and to be
regu-lated under this Act be given the broadest possible
interpreta-tion, and ... that doubts be resolved in favor of
inclusion of a facility within the coverage of the Act."  S.
Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legis-lative History of the Federal
Mine Safety and Health Act of 1977, at 602 (1978)(Legis.
Hist.).

The issue is whether API is milling minerals at its screen-
ing plant in Imperial County, California.  The term
"milling" is not defined in the Mine Act and the parties
base their arguments, in part, on the MSHA-OSHA Interagency
Agreement ("Interagency Agreement").  It is important to
understand that in some respects the Interagency Agreement
is not applicable to API's facility.  API's screening plant
is not subject to inspection by OSHA be- cause the State of
California has assumed responsibility for occupational
safety and health inspections under its own program
("Cal/OSHA").  In California, mines are subject to periodic
in- spection by Cal/OSHA despite the fact that MSHA also
inspects these facilities.  See generally, Cal. Lab. Code �
6303.5; 30 U.S.C. � 955(a).  Thus, there is overlapping
safety and health jurisdiction at mines in California.  The
Interagency Agreement is relevant in this case only as it
describes the Secretary's interpretation of the boundaries
of MSHA jurisdiction, not the limits of OSHA jurisdiction.

The Interagency Agreement provides, in pertinent part, that
"milling consists of one or more of the following processes:
crushing, grinding, pulverizing, sizing, concentrating,
washing, drying...."  44 Fed. Reg. at 22829 (emphasis
added).  Sizing is defined as "the process of separating
particles of mixed sizes into groups of particles of all the
same size, or into groups in which particles range between
maximum and minimum sizes."  Id.    The Interagency
Agreement further states that "OSHA jurisdiction includes
..., whether or not located on mine property: ... asphalt
batch, and hot-mix plants."  Id.  at 22827.  Finally, the
Interagency Agreement provides that OSHA authority commences
at an asphalt-mixing plant "after arrival of sand and gravel
or aggregate at the plant stockpile."  Id.  at 22829-30.
These provisions of the Interagency Agreement provide an
appropriate guideline for analyzing this case.  The
Commission is required to give "weight" to the "Secretary's
interpretations of the law."  Legis. Hist. at 637.

All of the citations were issued at API's screening plant.
If the screening plant is part of the milling process then
MSHA has jurisdiction over it.  If, on the other hand, the
screening plant is part of API's hot-mix plant, MSHA does
not have juris- diction over it.  API contends that it takes
finished product from DCL and uses this product in
connection with its production of hot-mix asphalt.  It
maintains that it "uses its screening facility solely for
the purpose of separating gravel into various sizes which in
turn is used by API itself to manufacture hot-mix asphalt."
(Br. at 5).  According to API, its screening of gravel is
part of the manufacturing process.

I conclude that the screening plant is subject to MSHA ju-
risdiction.  I have analyzed this case without regard to
owner- ship or control.  The facts show that DCL owns
equipment at this facility and controls part of the
operation, API owns equipment and controls other parts of
the operation, and Mr. Corcoran, President of API, owns the
real property on which the extraction, milling, and hot-mix
production takes place.  The issue of juris- diction in this
case does not hinge on questions of ownership and control.
See, e.g. United Engineering Services, Inc. v. FMSHRC, 35
F.3d 971, 975 (4th Cir. 1994).  The result would be the same
if one individual or corporation owned and controlled the
entire facility.  The key to this case is what happens at
each stage of the operation as the material flows through
the facility.

The first stage is the extraction of material from the
ground.  This function is clearly subject to MSHA
jurisdiction.  Next, the material is crushed.  This stage is
part of the milling process and all agree that it is under
MSHA's jurisdiction.  The third stage is the initial
screening.  Two piles are produced by this screening, a
product stockpile and a waste stockpile.  The parties do not
dispute that this initial screening is under MSHA
jurisdiction.  Next, a front-end loader takes the material
from the product stockpile and transport it about 300 feet
to a hop- per.  The material is then transported on a
conveyor belt to the top of the screening plant that is the
subject of this case.  As described in the stipulation, this
screening plant separates the material by size.  Three or
more stockpiles are generally cre- ated, each with its own
distinct mix of material.  It is this material that is
deposited in the cold feed bin of the hot-mix asphalt plant
for use in the production of asphalt.[1]

API's screening plant sizes the material for use in the
asphalt plant.  Sizing is included in the definition of
milling in the Interagency Agreement.  This plant takes
particles of mixed sizes that are present in DCL's product
stockpile and sep- arates the particles into groups of
particles of the same size or range of sizes.  This
screening process fits precisely into the Secretary's
definition of sizing in the Interagency Agreement.  As
stated above, the fact that API performs this function
rather than DCL is irrelevant in this case.  DCL's initial
screening to remove waste material occurs about 300 feet
from the screening that sizes the material.  I find that
both screening facilities are part of the milling operation
despite the fact that two dif- ferent companies accomplish
these tasks.

In addition, under the Interagency Agreement, OSHA's author-
ity at asphalt mixing plants "commences after arrival of
sand and gravel or aggregate at the plant stockpile."  44
Fed. Reg. at 228830.  In this case, I find that API's
stockpiles containing the screened material is the "plant
stockpile" for purposes of the Secretary's interpretation.
Although Cal/OSHA has jurisdic-tion over the entire
operation, this portion of the Interagency Agreement still
provides guidance as to the boundaries of MSHA's
jurisdiction.  MSHA's jurisdiction ends upon arrival of the
sized material at API's stockpiles.

API asserts that neither the courts nor the Commission has
"asserted jurisdiction over a facility that handles and/or
pro-cesses minerals in connection with its manufacturing
operations."  (Br. at 2).  API distinguishes the facts of a
number of Commis-sion and court cases and states that these
cases held that an employer is subject to MSHA jurisdiction
"where the employer is only engaged in the transportation
and processing of raw materi-als."  (Br. at 8) (emphasis in
original).  It states that the decision in Donovan v.
Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984), is not
applicable because the Stalite facility pro- cessed slate
and sold its raw slate product to other companies which
manufactured masonry blocks.  API believes that it is sig-
nificant that the employer in that case did not manufacture
masonry blocks.  API also believes that the decision in
United Engineering, 35 F.3d 971, does not apply because the
employer handled and processed raw coal as an end product.
API believes that Mine Act jurisdiction attached to the
employer's facilities because the coal it transported and
processed was not used in any manufacturing process or
incorporated into some other product.  Rather, the coal was
consumed in its raw state at the employer's power plant.

API contends that its activities are analogous to the situa-
tion that existed in Oliver M. Elam, 4 FMSHRC 5 (January
1982).  The Commission determined that MSHA did not have
jurisdiction over the employer in that case because it
crushed and conveyed coal solely to load it for shipment and
not to meet customer specifications or to render the coal
fit for any particular use.  API maintains that it does not
operate its screening plant to meet customer specifications
or to render the product fit for any particular use, but
rather it operates the plant as part of its hot-mix asphalt
plant.[2]

I disagree with API's arguments.  First, contrary to API's
position, API does not take "finished" product from the DCL
product stockpile.  API screens this material to produce
stock-piles of different-sized rock.  The material in DCL's
stockpile is not a finished product but is raw material.
Second, API screens the material to render it fit for a
particular use, the production of asphalt.  The material is
not sized to make it easier to handle or to ship, as in
Elam, it is sized so that it can be used to make asphalt.
Thus, it is sized to meet customer specifications.  The fact
that API is also the customer is not important.  The
material is sized to meet the specifications of API's
asphalt plant.

Finally, the fact that the sized rock is ultimately used in
a manufacturing process does not change the result.  The
material produced by the employer in Carolina Stalite was
used to manufac-ture masonry blocks.  The employer did not
own the manufacturing plant and such a plant was not located
at the site, but those facts do not change the result.
There is no indication in  Carolina Stalite that the court
would have reached a different conclusion if the employer
also operated a masonry block plant on the same site.  In
addition, United Engineering cannot be dis- tinguished on
the basis that the coal was burned "in its raw state" at a
power plant rather than incorporated into a product.  In the
case of coal, it is crushed, sized, and prepared for use in
a particular power plant.  The crushed material that API ob-
tained from DCL was sized for use in a particular asphalt
plant.  In United Energy, the fact that the prepared coal
was a fossil fuel that was consumed as it was used is not
determinative.

                  IV. CIVIL PENALTY ASSESSMENT

API did not contest the specific allegations set forth in
the seven citations.  Accordingly, I affirm the citations.
MSHA proposed a penalty of $380.00 for the citations.  I
have consid-ered the representations and documentation
submitted in these cases, and I conclude that the proposed
penalty is appropriate under the criteria set forth in
section 110(i) of the Mine Act.

                            V.  ORDER

Accordingly, the citations in these proceedings are
AFFIRMED, and Aggregate Products Inc. is ORDERED TO PAY the
Secretary of Labor the sum of $380.00 within 40 days of the
date of this decision.


                             Richard W. Manning
                             Administrative Law Judge


Distribution:

Paul A. Belanger, Conference and Litigation Representative, Mine Safety
and Health Administration, 3333 Vacavalley Parkway, #600, Vacaville, CA
95688 (Certified Mail)

Gregory D. Wolflick, Esq., WOLFLICK & SIMPSON, 130 N. Brand Boulevard, Suite
410, Glendale, CA 91203 (Certified Mail)

Armida Castro, Safety Director, AGGREGATE PRODUCTS INC., P.O. Box 5215,
Salton City, CA 92275-5215 (Certified Mail)

RWM


**FOOTNOTES**

  The parties agree that the hot-mix plant is not subject to MSHA
jurisdiction.

   The  parties  dispute  the  meaning  of  paragraph 14 of their
stipulated  facts.   Apparently,  some of the material  in  API's
stockpiles is sold to the public, but  the parties disagree as to
the amount that is sold.  API contends that  the  amount  sold is
insignificant  while  the Secretary maintains that API is in  the
business of selling screened  sand  and  gravel.  Because of this
dispute, I have assumed that all of the material  screened by API
is used in its hot-mix asphalt plant.