Idaho Travertine Corporation

Read the official release (oshrc.gov)

Plain-English summary

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

Decision snapshot

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

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

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

������������������������ v.

OSHRC
DOCKET NO. 1134

IDAHO
TRAVERTINE CORPORATION,

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

September 30, 1975

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.

BY THE COMMISSION:

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

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

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

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

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

Milling is the art of treating the crude
crust of the earth to produce therefrom the primary consumer derivatives. The
essential operation in all such processes is separation of one or more valuable
desired constituents of the crude from the undesired contaminants with which it
is associated.

�

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

Sawing and Cutting Stone

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

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

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

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

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

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

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

So ORDERED.

FOR THE COMMISSION:

�

William S. McLaughlin

Executive Secretary

DATED: SEP 30, 1975

�

MORAN, Commissioner, Dissenting:

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

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

�

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

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

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

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

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

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

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

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

������������������������ v.

OSHRC
DOCKET NO. 1134

IDAHO
TRAVERTINE CORPORATION,

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

FINAL ORDER DATE: February 25, 1974

DECISION AND ORDER

�

APPEARANCES:

MALCOLM R. TRIFON, Esq. for the Complainant

G. RICH ANDRUS, Esq. for the Respondent

Henry C. Winters, Judge

�

STATEMENT OF THE CASE

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

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

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

Standard
or Regulation allegedly violated

Date
on which alleged violation must be corrected

Description
of alleged violation

29
CFR 1910.213(h)(1)

July 17, 1972

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

Citation Number 1 alleges the following
violations:

Standard
or Regulation allegedly violated

Date
on which alleged violation must be corrected

Description
of alleged violation

1
29 CFR 1910.95(b)(1)

6
months December 18, 1972

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

1�Trim Saw
Helper Area�92/103dBA

2�Trim Saw
Operator

2
29 CFR 1910.95(a)

July 6, 1972

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

1�Trim
Saw Helper Area

3
29 CFR 1910.133(a)(1)

5
days

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

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

IMMEDIATELY

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

5
29 CFR 1910.242(b)

July
17, 1972

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

6
29 CFR 1910.37(q)(1)

July
6, 1972

All
personnel exits are not marked as such.

7
29 CFR 1910.151(c)

July
17, 1972

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

8
29 CFR 1910.213(h)(4)

July
17, 1972

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

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

5
days

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

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

5
days

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

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

5
days

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

12
29 CFR 1910.219(b)(1)

July
17, 1972

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

13
29 CFR 1910.22(a)(1)

June
30, 1972

Housekeeping
in the following areas was very bad.

�

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

�

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

�

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

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

�

SERIOUS VIOLATIONS

Citation No. 1 $750.00

OTHER VIOLATIONS

Citation No. 1

Item No.

1

1

00

2

35.00

3

00

4

00

5

00

6

00

7

75.00

8

00

9

55.00

10

55.00

11

00

12

00

13

375.00

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

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

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

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

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

DIRECT EXAMINATION BY MR. TRIFON

� �.
. ..

Q And what business is Idaho Travertine
engaged in?

�

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

Q At what location is the Travertine rock
quarried?

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

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

A Approximately, yes.

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

A At 3935 North Yellowstone Highway, Idaho
Falls.

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

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

�

CROSS EXAMINATION BY MR. ANDRUS

Q How are the blocks quarried?

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

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

A No.

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

A Right.

�

REDIRECT EXAMINATION BY MR. TRIFON

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

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

JUDGE WINTERS: Could you give us the
dimensions?

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

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

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

�

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

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

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

�

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

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

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

�

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

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

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

� �September
18, 1972

�

Theo R. Orchard, President

�

Idaho Travertine Corporation

�

3935 North Yellowstone Highway

�

Idaho Falls, Idaho 83401

�

Dear Mr. Orchard:

�

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

�

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

�

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

�

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

Sincerely yours,

�

s/E. F. Allen

E. F. Allen

Acting District Manager

�

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

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

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

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

ORDER

In view of the findings made herein,

IT IS ORDERED:

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

�

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

�

HENRY C. WINTERS

Judge

January 25, 1974

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

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

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

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

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

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

[5] � See 30 U.S.C. � 721(b).

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

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

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

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

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

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

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

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