JTM Industries, Inc.

Plain-English summary

JTM performed reclamation work at a former open-pit bauxite mine and handled alkaline Alroc material on haul roads and in the excavated pit. OSHA cited the company for inadequate protective equipment and hazard-communication training. The Commission held that the reclamation site remained a mine under the Mine Act because the pit, surrounding land, spoil piles, and private haul roads resulted from mineral extraction. It rejected the argument that MSHA authority ended because mining had stopped eleven years earlier or because the reclamation work was not tied to active extraction. Because MSHA had statutory authority and regulations covering the cited conditions, OSHA's authority was preempted and both citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(h)(3)(iii); 29 C.F.R. § 1910.132(a)
• Outcome: Two serious OSHA citation items vacated for lack of OSHA authority.
• Key point: An abandoned mine undergoing reclamation can remain within MSHA's jurisdiction when the site and roads resulted from mineral extraction.

Full text (OSHRC public release)

SECRETARY OF LABOR,

                            Comp lainant,

                v.                                      OSHRC D ocket No. 98-0030

JTM INDU STR IES, IN C.,

                            Respon dent.



                                        DECISION

Before: RO GERS , Chairman; EISE NBRE Y, Comm issioner.
BY THE COMMISSION:
JTM Industries, Inc. (“JTM”) was under co ntract to perform reclama tion work at the
East 40 Mine (“E -40 mine”) at Reynolds M etals Company’s Hurricane Creek Mine Project
in Bauxite, Arkansas. The E-40 mine is an open-pit mine from which Reynolds extracted
bauxite, a claylike ore from which aluminum is obtained. Following an inspection by the
Occup ational Saf ety and He alth Adm inistration (“O SHA ”) on July 18, 1997, the Secretary
of Labor (“the Secretary”) issued JTM one citation with two items, alleging serious
violations of personal protective equipment and training standards. Administrative Law
Judge Nancy J. Spies affirmed both items and assessed a total penalty of $1200. At issue on
review is whether the Mine Safety and Health Administration (“MSHA”) has authority over
the cited conditions so that OSHA’s authority is preempted by section 4(b)(1) of the
Occupational Sa fety and Health Act of 1970 (“OS H Act”), 29 U .S.C. § 653(b)(1). 1

1
Section 4(b)(1) provides:

      Nothing in this Act shall a pply to work ing conditio ns of em ployees with
      respect to which o ther Federa l agencies . . . ex ercise statutory au thority to
      prescribe or enforce standards or regulations affecting occupational safety or
      health.

2

                                   I. Background
   Reynolds Metals Company (“Reynolds”) at one time o perated a n umber o f open-p it

bauxite mines at its Hurricane C reek Mine Pro ject. At issue here is the E-40 mine, which
covers 332 acres and is approximately 140 feet deep, 2000 feet long, and 1400 feet wide.
Reynolds last extracted bauxite from the E-40 mine in February 1983. On June 9, 1994,
Reynolds contracted with JTM to perform reclamation work at the mine. On August 12 of
that year, JTM subcontracted with Oxford Mining, Inc. (“Oxford”)2 to help fill the E-40 mine
and improve or construct haul roads connecting the mine to other parts of the Hurricane
Creek Mine Project. During the bauxite extraction process, Reynolds had removed soil and
rocks from the E-40 mine and taken this “spoil” to an area of the plant known as “Four
Lakes .” Part of the reclamation project involved returning spoil from Four Lakes to the mine.
While working at the E-40 mine, both JTM and Oxford employees handled a material
called “Alroc.” Alroc is a trademarked name used by Reynolds to describe incinerator ash
from pot liners that had been used in the primary aluminum reduction process. Reynolds had
treated the Alroc at its Gum Springs waste treatment facility, located approximately sixty-five
miles south of the E-40 mine. Rather than disposing of this material in the Gum Springs
landfill, Reynolds sought to find a co mmercial use for A lroc, which is highly alkaline. In
April 1996, JT M and Oxford began pla cing Alro c in the E-40 mine to balance the acidity of
the mine spoil leachate. JTM and Oxford also used Alroc to su rface hau l roads in and around
the E-40 mine.
Because of conce rns about th e environm ental impac t of Alroc, a nd pursua nt to an
agreement between Reynolds and the Arkansas Department of Pollution Control and
Eco logy, JTM and Oxford began removing Alroc from the haul roads in June 1997. John
Reeder, JTM’s project manager over reclamation activities at the E-40 mine, testified that

2
Oxford was als o cited b y OSH A and our disp osition o f that ca se, Oxford Mining, Inc.,
OSH RC D ocket N o. 98-0 057, als o issued today.
 3

by the time of the OSHA inspection the only portion of the haul roads that still contained
Alroc was the “southern third” of the haul roa d leading f rom the F our Lake s spoil piles to the
E-40 mine. According to Reeder, this was the part of th e road “do wn in the p its that was still
below grade or final grade.”
The two citation items at issue allege that Alroc can cause health problems, including
skin and eye irritation, and that JTM violated personal protective equipmen t and hazard
communication training standards by failing to protect employees from Alroc exposure.

                                    II. Preemption
   The Commission evaluates an emp loyer’s argum ent that OS HA’s a uthority is

preempted under section 4(b)(1) by considering (1) whether the other federal agency has the
statutory authority to regulate the cited working conditions, and (2) if the agency has that
auth ority, whether the agency has exercised it over the cited conditions by issuing regulations
having the force a nd effec t of law. E.g., MEI Holdings, Inc., 18 BNA OSHC 2025, 2025,
1999 CCH OSH D ¶ 32,011, p. 47,75 9 (No . 96-74 0, 2000 ), aff’d without published opinion,
247 F.3d 247 (11th Cir. 2001) (D epartmen t of Defe nse); Rockw ell International Corp., 17
BNA OSHC 1801, 1803, 1995-97 CCH OSHD ¶ 31,150, p. 43,531 (No. 93-45, 1996)
(consolidated) (National Aeronautics and Space A dministration). 3 The Commission gives
considerab le weight to a federal agency’s representation as to its authority to regulate cited
working conditio ns. Ho weve r, the Commission independently reviews the statutory and
regulatory provisio ns at issu e, as we ll as the e videnc e, to determin e whethe r that view is
reasonab ly supported by the record. MEI Holdings, Inc., 18 BNA OSHC at 2026, 1999 CCH

3
The typical preemption case involves two unrelated agencies. Although both OSHA and
MSHA are agencies in the Department of Labor, we will nevertheless apply t he same
analysis we wo uld apply if the a gencies w ere unrelated . In response to an invitation for a
separate brief on MSHA’s behalf, the Solicitor of Labor indicated that the Secretary of
Labor’s position on the respective authorities of MSHA and O SHA would be discussed in
her brief on review.
 4

OSH D at p. 47,7 59; Rockw ell Intern ationa l Corp ., 17 BNA OSHC at 1803, 1995-97 CCH
OSHD at pp. 43,53 1-32. In this c ase, only the first p art of the test whether MSHA has
statutory authority over the cited conditions is at issue. In her brief on review, the
Secretary acknowledg es that MS HA ha s promulg ated regula tions that add ress the hea lth
hazards at issue in the present case,4 and that O SHA ’s authority to regu late the cited hazards
would be preempted if MSH A has statutory authority over the hazards.
The citation alleges that the violations occurred “in and around the E-40 Mine
Reclamation A rea.” MSH A’s statutory authority to regulate the working conditions in that
area depends on whether the area is a “coal or other mine” within the meaning of section 4
of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 803.
Section 3(h)(1) of the Mine A ct, 30 U.S.C . § 802(h)(1 ), defines “c oal or other m ine,” in
relevant part, as:
(A) an area of land from which minerals are extracted in nonliquid form or, if
in liquid form , are extracted with workers underground, (B) private ways and
roads appurtenant to such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures, facilities,
equipme nt, machine s, tools, or other property including impoundments,
retention dams, and tailings ponds, on the surface or underground, used in, or
to be used in, or resulting from, the work of extracting such minerals from
their natural deposits in nonliquid form, or if in liquid fo rm, with workers
underground, used in, or to be used in, the m illing of such minerals, or the
work of preparing coal or other minerals, and includes custom coal preparation
facilities.

      On the facts of this case we conclude that the E-40 site constitutes a “mine” under

section 3(h)(1)(C) of the Mine Act, and that OSHA’s authority over it is, therefore,
preempted. In light of the statutory language of the Mine Act and its legislative history, we
construe the area in an d around the E-40 p it as an “exc avation,” “f acilities,” and “other

4
See generally 30 C.F.R. § 56.
 5

prop erty” “resulting from[ ] the wo rk of ex tracting . . . minera ls.” 5 The E-40 pit was
excavated for the purpose of mining bauxite, and the surrounding land was developed during
the bauxite extraction process as haul roads were constructed and the Four La kes spoil pile
was formed.
With respect to the haul road on which the cited condition was located, we note first
that the portion of the road at issue during the inspection was inside the excavated bauxite
pit. To the ex tent, however, that the citation also pertains to other areas of the haul road, we
disagree with the judge’s narrow reading of section 3(h)(1)(C) in finding that the network
of roads in and around the E-40 mine was not part of the “mine” under that section. In
making this finding, the judge relied on Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 939
(6th Cir.), cert. denied, 522 U.S. 807 (1997), in which the Sixth Circuit rejected the
employer’s contention that a road w as an integral part of a mine and its loadout facility under
section 3(h)(1)(C). The court noted that “it is not clear from the s tatute or legislative history
that Congress intended to include roads within the meaning of [section 3(h)(1)(C)], since
Congress specifically dealt with roads in [section 3(h)(1)(B)].” Id. at 939.
In our view, this final comment by the court, which was not the subject of any further
analysis, does not reflect the main holding of Bush & B urchett. The key issue before the court
in that c ase w as w heth er a road connect ing a coal mine to a load out f acility was a “mine”
under section 3(h)(1)(B). 6 Holding that the worksite was a public rather than private road,

5
In a similar con text, MSHA jurisdiction was upheld over an electric generation station that
burned material taken from a coal mine culm bank located on its property. Although the mine
had ceased operation forty years earlier, the Federal Mine Safety and Health Review
Commission (“FMSHRC”), the agency charged with adjudicating disputes under the Mine
Act, found th at “the culm bank literally falls within the statutory definition of ‘mine’ [under
section 3(h)(1)(C)] since ‘it results[s] from the work of ex tracting . . . minera ls from their
natural deposits . . . .’ ” Westwood Energy Properties, 11 FMSHRC 2408, 2413, 1987-90
CCH OSHD ¶ 28,777, p. 38,361 (Nos. PENN 88-42-R; 88-43-R; 88-73-R through 88-89-R;
and 88-148, 198 9) (citation omitted).
6
Section 3(h)(1) (B) app lies by its term s specif ically to “p rivate w ays and ro ads.”
 6

the Sixth Circuit expressed concern that if a public road can be considered a “mine” MSHA
jurisdiction “could conceivab ly extend to unfathomab le lengths[.]” Id. at 937. Therefore, the
court did not foreclose a conclusion that MSHA has jurisdiction over the private roads that
are completely within the Hurricane Creek Mine Project, and partly within the E-40 pit itself.
We conclude, unlike the judge, that the road at issue here is part of a “mine” under
section 3(h)(1)(C). In our v iew, this interp retation of th e relevant sta tutory provision s is
compelled by the legislative history of the Mine Act, which explicitly contemplates “a need
to resolve jurisdictional conflicts” and em phatically states “that what is considered to be a
mine and to be regula ted under th is Act be given the broadest possible interpretation, and .
. . that doubts be resolved in favor of inclusion of a facility within the coverage of the Act.”
S. Rep. N o. 181, 9 5th Co ng., 1st S ess. 14 ( 1977) . See Herman v. Associated Elec. Co-op,
Inc., 172 F.3d 1078, 1081 (8th Cir. 1999) (Congress intended “mine” to be given broadest
possible interpretation, n oting reme dial nature o f Mine A ct); Bush & Burc hett, 117 F.3d at
936-37 (same); Dono van v. C arolina Stalite C o., 734 F.2d 1547, 1554 (D.C. Cir. 1984)
(upholding MSHA jurisdiction over mineral processing facility not engaged in extraction);
Harmon Mining Corp. v. FMS HRC , 671 F.2d 794, 796-97 (4th Cir. 1981) (“broad definition
of a ‘mine’ in the Act demonstrates that Congress intended that term to encompass all of the
facilities used at a coal preparation plan t”).
The Secretary argues, however, that neither the haul roads nor the E-40 pit itself can
be considered a “mine” under section 3(h )(1)(C) bec ause the rec lamation w ork did no t begin
until eleven years after the mine closed and MSHA stopped inspecting it, and because the
reclamation work was unrelated to ongoing mineral extraction. In support of her argum ent,
the Secretary contends, “It is simply incon ceivable that Cong ress intende d that MS HA w ould
regulate in perpetuity all occupational activities on parcels of land resulting from, or affected
by, mineral extraction activities merely because mineral extraction activities had taken place
some time in the past.” Of course, relevant court and administrative precedent makes clear
that there are limits to the scope of MSHA jurisdiction. The determination of whether a cited
 7

facility is a “mine,” howe ver, must be based on factors derived from the statutory definition.
We find no indication in the statute or its legislative history that a facility that meets the
statutory “resulting from” criterion would be denied Mine Act coverage solely because too
much time had passed since mineral extraction had ceased. Neither has the Secretary cited
any authority indicating that duration of abandonment is a factor in determining wh ether a
facility is a mine under the Mine Act. Nor has she offered any reason to distinguish between
an eleven-year and a one-day hiatus between the cessation of active mining and
commencement of reclamation activities for purposes of determining whether a facility is a
mine. There is nothing illogical or contrary to Congressional intent in extending Mine Act
coverage to include the reclamation of land s resultin g fro m mineral ex tract ion, p artic ularly,
in our view, under the circumstances of this case.
In addition, the Secretary has not cited any decisions that support her argument that
there must be a nexus between the cited activity and active mineral extraction. In fact, the
Third Circuit, in Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589, 59 2 (3rd Cir.
1979), explicitly rejected the argument, made in that case by the employer, that a business
cannot be “included within the Act’s ambit because [its] activities are not related to the
extraction of minerals from natural deposits or their preparatio n after extra ction.” Also , in
Lancashire Coal Co. v. Secretary of Labor, 968 F.2d 388 (3rd Cir. 1992), the Third C ircuit
strongly indicated that it would have considered the demolition of a silo at an abandoned coal
mine to be work at a “mine” as defined in section 3(h)(1)(C) if “resulting from” language had
been included in that part of section 3(h)(1)(C) addressing coal preparation facilities. The
Court stated, “If Congress do es in fact intend [for M SHA] to co ver the activity of
reclamation of structures that were once used in preparation of coal, but are no longer being
so used . . . it can amend section 3(h)(1) to add the two missing words.” Id. at 393.
Indeed, the Secretary has taken positions in other cases that are inconsistent with her
claim that MSHA does not have jurisdiction over a worksite unless the work performed at
 8

the site has a close relationship to active mineral extraction.7 Lancashire, cited above, is one
example. The Secretary also asserted MSHA jurisdiction in R.C. Enterprises, 1995 WL
20256 (Nos. SE 94-251, SE 94-252 & SE 94-438, 1995) (ALJ) and Internation al Anthra cite
Corp., 14 FMSHRC 1790, 1992 FMSHRC LEXIS 436 (No. PENN 92-230, 1992) (A LJ),
two cases involving reclam ation w ork at m ines w here the re was no activ e extrac tion. See also
Premier Elkho rn Co al Co., 23 FMSHRC 304, 2001FMSHRC L EXIS 39 (No. KENT 2000-
188, 2001) (ALJ) (MSHA assertion of jurisdiction over road appurtena nt to abandoned coal
pit that had undergone reclamation work, with no apparent active mining operations also
appurtenant to such road); James Fork Min ing Co ., 19 FMSHRC 746, 1997 FMSHRC
LEXIS 3102 (No. CENT 97-16, 1997) (ALJ) (MSHA assertion of jurisdiction over
reclamation work at sealed coal mine not operated in nineteen years where owner filed
various documents required to resume mining, but where such m ining was only a mere
possibility).
We find no merit in the Secretary’s additional argument that, if MSHA has jurisdiction
over reclamation sites where there is no active mineral extraction, there should be more
decisions by the Federal Mine Safety and Health Review Commission (“FMSHRC”)
affirming citations at such sites. First, we note that there are no FMSHRC decisions finding
that MSHA does not have jurisdiction over reclamation sites where there is no active
extraction. More importantly, however, we note that the number of FMSHRC decisions
addressing reclamation work might reflect that MS HA has no t actively enforced its
regulations which apply to su ch wo rk. Doyle Fink, district manager for the MSHA region
that includes Arkansas, acknowledged at his post-hearing deposition that personnel
limitations have been a factor in MSHA’s jurisdictional determinations. A lack of

7
See, e.g., Good Samaritan Hospital v. Shalala, 508 U.S. 402, 417 (1993) (“the consistency
of an agency’s position is a fac tor in assessing the weight that p osition is due”).
 9

enforcem ent, of course, does not mean that MSHA does not have the authority to enforce its
regulations. MSHA’s authority, not the vigor of its enforcem ent, is the subject of our inquiry
under section 4(b)(1) of the OSH Act. Daniel Construction Co., 12 BNA OSH C 1748, 1751,
1986 CCH OSH D ¶ 27,5 38, p. 35,73 4 (No. 82 -668, 198 6); Pennsuco Cement and
Aggregates, Inc., 8 BNA OSHC 1378, 1381, 1980 CCH OSHD ¶ 24,478, p. 29,890 (No.
15462, 1980).
We also note that some of the working conditions involved in reclaiming th e E-40 site
are similar to those employees faced during the bauxite extraction process. Cf. Bituminous
Coal Operators Assn. v. Secretary of Interior, 547 F.2d 240, 245 (4th Cir. 1977) (finding the
Coal Act applicable to coal mine construction company, court noted that construction
workers were subject to the same hazards as miners). The E-40 mine was 140 feet deep when
reclamation began, and employees w ere exposed to vertical walls of overburden. Employees
at the E-40 mine used equipme nt similar to tha t used durin g certain ph ases of the bauxite
extraction process including scrapers, bulldozers, backhoes, and haul trucks to refill the
previously-excavated pit with its own spoil. In fact, an MSH A officia l provided tra ining to
employees involved in the reclama tion work . This training addressed equipment use and the
hazards of water accumulation in the E-40 mine. The participation of an MS HA of ficial in
employee training does not, in itself, establish that MSHA has jurisdiction over the E-40
mine, but it does indicate that some of the working conditions during reclamation were
similar to those during extraction.
For all the reasons above, we find that the E-40 reclamation site is a “mine” within
the scope of MSHA’s regulatory authority. Because we find that MSHA has statutory
authority to regulate the working conditions in and around the E-40 mine reclamation area,
 10

and has e xercised its au thority by issuing regu lations that ap ply to the cited conditions, we
conclude that OSH A’s autho rity is preempted by section 4(b )(1) of the O SH A ct.
Acco rdingly, w e vaca te the cita tion.

                                                       /s/
                                                       Thomasina V . Rogers
                                                       Chairman

                                                       /s/
                                                       Ross Eisenbrey
                                                       Commissioner

Date: December 14, 2001
Secretary of Labor,
Comp lainant,

            v.                                      OSH RC D ocket N o. 98-0030

JTM Industr ies, Inc.,
Respon dent.

Appearances:

    Madeleine T. Le, Esquire                        Carl B. Carruth, Esquire
    David C. Rivela, Esquire                                 McNair Law Firm, P.A.
            U. S. Department of Labor               Columbia, South Carolina
            Office of the Solicitor                                   For Respondent
            Dallas, Texas
                     For Complainant

Before:Administrative Law Judge Nancy J. Spies

                                  DECISION AND ORDER
    JTM Industries, Inc. (JTM), contests a citation issued to it by the Secretary on November 14,

1997. The Secretary issued the citation as a result of an inspection conducted by the Occupational
      Safety and Health Administration (OSHA) at the Hurricane Creek Mine Project in Bauxite,
      Arkansas, in July 1997.
      Item 1 of the citation alleges a serious violation of § 1910.1200(h)(3)(iii), for failure to train
      employees in measures they can take to protect themselves from exposure to hazardous chemicals.
      Item 2 of the citation alleges a serious violation of § 1910.132(a), for failure to provide appropriate
      personal protective equipment to its employees.
      Also on November 14, 1997, the Secretary issued a citation alleging violations of the same
      standards to Oxford Mining Company, Inc., with whom JTM had subcontracted on the Hurricane
      Creek Mine Project. Both JTM and Oxford contested the citations, and the cases were consolidated
      by order of the undersigned on May 27, 1998, for purposes of hearing. 8

8
To avoid confusion, the cases were severed for purposes of decision.
 JTM disputes OSHA’s jurisdiction over the worksite, asserting an affirmative defense under
§ 4(b)(1) of the Occupational Safety and Health Act of 1970 (Act). For the reasons set out below,
JTM’s affirmative defense is rejected, and items 1 and 2 of the citation are affirmed.
Background
At one time Reynolds Metals Company operated numerous open pit bauxite mines at its
Hurricane Creek Mine Project in Bauxite, Arkansas (Tr. 603). The bauxite ore excavated from the
mines was used in the production of aluminum. The specific worksite at issue in this case is
designated as the E-40 site. The E-40 site is a 330-acre site that includes an abandoned bauxite mine
pit and the areas adjacent to the pit (Tr. 335).
To remove the bauxite ore, Reynolds stripped away the overburden of soil and rocks that
covered the natural deposit of bauxite. Reynolds removed the overburden (called “spoil”) from the
mine pit and piled it up in spoil piles at an area north of the E-40 mine known as Four Lakes.
Reynolds then blasted over the bauxite ore that had been uncovered and removed it from the mine
pit by a dragline, loaded it onto trucks, and hauled it to Reynolds’s processing plant in Euclid,
Arkansas. Reynolds extracted the last bauxite from the E-40 pit in February 1983 (Exh. C-5,
Tr. 600).
On June 6, 1994, Reynolds contracted with JTM to perform reclamation services at the E-40
mine pit. On August 12, 1994, JTM subcontracted with Oxford to fill the E-40 pit and to construct
haul roads to the E-40 site. In August 1994, Oxford began performing reclamation services
(Exh. R-8).
In addition to the Hurricane Creek Mine Project, Reynolds also operated a waste treatment
facility near Arkadelphia, Arkansas, known as the Gum Springs Facility. At the Gum Springs
Facility, Reynolds treated spent pot liners used in the primary aluminum reduction process.
Reynolds gave the spent pot liner the trade name “Alroc.”9 Reynolds wanted to find a commercial
use for Alroc, which was being disposed of in a landfill at the Gum Springs Facility. Reynolds had
a number of haul roads on which haul trucks traveled between the Four Lakes spoil piles and the
E-40 site. In June and July 1995, Reynolds first used Alroc to surface a test road (Exh. C-5;
Tr. 348).

9
It is also known as “kiln residue” and was referred to by some witnesses at the hearing as
“ash.”
 In April 1996 Reynolds began placing Alroc from Gum Springs in the E-40 mine pit in thin
layers between thicker layers of mine spoil to reduce the acidity of the mine spoil leachate from the
pit. The Alroc was alkaline and would help to neutralize the acidity of the leachate from the mine
spoil. The Alroc was also used on the haul roads to keep the haul trucks from getting stuck and to
use a fill material for the pit to help neutralize the mine spoil (Exh. C-5; Tr. 347).
From 1994 to 1997, approximately 151,770 cubic yards of Alrocwere shipped from the Gum
Springs Facility to the E-40 site. While working at the Hurricane Creek Mine Project, employees
of both JTM and Oxford regularly handled Alroc. The number of onsite employees at the site varied
from 50 to 100. Reynolds employed three of these employees. JTM employed five (Tr. 617). The
rest of the employees worked for Oxford (Exh. C-5).
In January 1997, leachate water concentrations from the Gum Springs landfill indicated
elevated levels of arsenic, fluoride, cyanide, and pH. The Environmental Protection Agency (EPA)
conducted interstitial ground water sampling from bore holes at Gum Springs and Hurricane Creek.
After the sampling, Reynolds and the Arkansas Department of Pollution Control and Ecology
reached a consent agreement on June 30, 1997, to restrict the use and disposal of Alroc. The
agreement became effective on August 23, 1997 (Exh. C-5).
Oxford began removing Alroc from the haul roads in June 1997. OSHA began its inspection
of the E-40 site on July 18, 1997.
Preemption Under § 4(b)(1) of the Act
JTM argues that the E-40 site is exempt from the requirements of the Occupational Safety
and Health Act because, under § 4(b)(1) of the Act, the Mine Safety and Health Administration
(MSHA) preempts OSHA’s jurisdiction. This is an affirmative defense and JTM has the burden of
proving that such preemption occurred.
Section 4(b)(1) of the Act provides:
Nothing in this Act shall apply to working conditions of employees with respect to
which other Federal Agencies, and State agencies acting under section 274 of the
Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory
authority to prescribe or enforce standards or regulations affecting occupational
safety and health.

   In order to establish an affirmative defense under § 4(b)(1), the employer must show that an

agency other than OSHA has the statutory authority to regulate the health and safety of workers and
that the other agency exercises its statutory authority in such a manner as to exempt the cited
working conditions. Northwest Airlines, Inc., 8 BNA OSHC 1982 (No. 13647, 1980).
The OSH Act authorizes the Secretaryof Labor to set mandatory occupational safety
and health standards for businesses affecting interstate commerce. See 29 U.S.C.
§ 653(b)(1). The Act, however, exempts from the statute’s reach employees who are
regulated by other federal agencies. 29 U.S.C. § 653(b)(1). A two-step analysis is
used to determine whether OSHA jurisdiction has been preempted: (1) whether a
regulation has been promulgated by a state or federal agency other than OSHA; and
(2) whether the regulation promulgated covers the specific “working conditions” at
issue.

Bush & Burchett, Inc., 117 F. 3d 932, 936 (6th Cir. 1997) (footnote and citation omitted).
The Mine Safety and Health Act (MSH Act) itself provides little clear-cut guidance on the
jurisdictional issue in this case. The MSH Act does not specifically address reclamation work or
work with hazardous waste. It is ambiguous as to the duration of MSHA’s jurisdiction over
abandoned mine sites.
The Secretary attempted to bolster its position that OSHA has jurisdiction over the E-40 site
by proffering the deposition testimony of DoyleFink, district manager for MSHA.10 Fink stated that,
in his opinion, MSHA did not have jurisdiction over the E-40 site. His testimony failed to establish
a legal basis for determining jurisdiction.
Fink is employed as district manager in MSHA’s Dallas, Texas, office and he supervises
MSHA inspectors in six states, including Arkansas (Fink deposition, p. 5). Fink referred to the
Memorandum of Understanding between MSHA and OSHA11. The Memorandum addresses each
agency’s jurisdiction with regard to milling and preparation processes, which are not at issue here.
Fink admitted that the Memorandum of Understanding does not mention reclamation work. He
stated that the Memorandum uses the MSH Act’s definition of “coal or other mine,” so that it
provides no clarification beyond the MSH Act’s definition (Fink deposition, pp. 13-14). Fink

10
The deposition of Doyle Fink was taken by the Se cretary on De cember 2 9, 1998, to
supplement the record in this case. Fink’s deposition testimony will be cited as “Fink
deposition, p. --.” A copy of Fink’s deposition is entered into the record as Exhibit J-59 in
the case file.
11
“The interagency agreement was originally reported in 39 Fed. Reg . 27,382 (1974 ). . .”
Dono van v. C arolina Stalite C o., 734 F. 2d 154 7, 1550, footnote 4 (D .C. Cir. 1984).
admitted that his opinion that MSHA did not have jurisdiction over the E-40 pit was an
accommodation to MSHA’s personnel shortages (Fink deposition, p. 25). The Secretary failed to
adduce any evidence that Fink had the authority to determine which agency had jurisdiction over the
E-40 site.
Determination of who had proper jurisdiction over the E-40 site must be decided based on
the MSH Act’s definition of a mine. If the E-40 site is a mine, then MSHA promulgated regulations
that covered the site and MSHA has jurisdiction. If the E-40 site does not qualify as a mine, then
MSHA did not promulgate regulations that covered the site and OSHA has jurisdiction. As the
discussion below will show, MSHA’s definition of what constitutes a “mine” has been the subject
of considerable litigation.
Section 3(h)(1) of the MSH Act defines “coal or other mine” as:
(A) an area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings ponds,
on the surface or underground, used in, or to be used in, or resulting from, the work
of extracting such minerals from their natural deposits in nonliquid form, or if in
liquid form, with workers underground, or used in, or to be used in, the milling of
such minerals, or the work of preparing coal or other minerals, and includes custom
coal preparation facilities. In making a determination of what constitutes mineral
milling for purposes of this chapter, the Secretary shall give due consideration to the
convenience of administration resulting from the delegation of one Assistant
Secretary of all authority with respect to the health and safety of miners employed at
one physical establishment.

   Courts addressing the issue of MSHA jurisdiction have recognized § 3(h)(1)’s “sweeping

definition” of a mine in accordance with the MSH Act’s legislative history. “[I]t does not matter if
what is included in the definition fails to conform to the conventional concept of mining.” Cyprus
Industrial Minerals Co. v. MSHA, 664 F.2d 1116, 1118 (9th Cir. 1981). In Donovan v. Carolina
Stalite Co., 734 F. 2d 1547, 1554 (D.C. Cir. 1984), the D. C. Circuit Court of Appeals quotes the
Senate Report, which has been influential in the interpretation of the jurisdictional application of the
MSH Act:
The Senate Report also said: “The Committee notes that there may be a need to
resolve jurisdictional conflicts, but it is the Committee’s intention that what is
considered to be a mine and to be regulated under this Act be given the broadest
 possibl[e] interpretation” [S.Rep. No. 181, 95th Cong., 1st Sess. 14 (1997), U.S.
Code Cong. & Admin. News 1977, 34013414] (emphasis added). Close
jurisdictional questions are to “be resolved in favor of inclusion of a facility within
the coverage of the Act.” Id.

    See also, Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979), and

Harman Mining Corp. v. Federal Mine Safety and Health Review Commission, 671 F 2d 794
(4th Cir. 1981).
MSHA’s broad jurisdiction remains in place even if MSHA has reduced or suspended its
enforcement activities. In Daniel Construction Co., 12 BNA OSHC 1748, 1751 (No. 82-668, 1986),
the Review Commission affirmed the administrative law judge’s finding that MSHA preempted
OSHA’s jurisdiction under § 4(b)(1), despite evidence that MSHA had no resources to enforce its
standards in that case. “The exemption . . .was applied even though at the time of the inspection the
other agency was not enforcing its regulations.”
As noted above, Fink testified that MSHA did not want jurisdiction over the E-40 site
because MSHA has limited resources and personnel shortages (Fink deposition, p. 25). The case law
holds that these considerations are irrelevant in a judicial determination of jurisdiction. “Any
oversight of the adequacy of another agency’s enforcement activities is beyond the scope of a
permissible inquiry under section 4(b)(1).” Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC
1378, 1381 (No. 15462, 1980).
The Secretary cites two cases in support of its position that MSHA’s broad coverage does
not extend to the E-40 site. In Lancashire Coal Co. v. MSHA, 968 F. 2d 388 (3rd Cir. 1992), the
issue was whether a coal silo that collapsed during reclamation work done at an abandoned coal
preparation plant came under the jurisdiction of MSHA. The collapse occurred in 1989. The coal
silo had not been used since 1971. The administrative law judge ruled that the silo was within the
jurisdiction of MSHA. The Federal Mine and Safety Review Commission upheld the judge’s
decision. The Third Circuit Court of Appeals set aside the Review Commission’s decision, finding
that MSHA did not have statutory jurisdiction under the MSH Act over the abandoned coal silo at
the time it issued the citations.
The court noted that the MSH Act “refers to three different mining activities: ‘extracting’
minerals; ‘milling’ minerals; and ‘preparing coal or other minerals.’” Id. at 390. Section 3(h)(1)(C)
includes within the definition of “mine” structures “used in, or to be used in, or resulting from” the
work of extracting coal; that is, the past, present, and future tenses are covered. However, only
structures “used in, or to be used in” the milling of or preparing coal are included in the definition
of a “mine.” The statute does not include the words “resulting from” before the words “the work of
preparing coal.”
The court noted that the language of the statute led to an anomalous result, and turned to the
legislative history of the MSH Act for aid in determining the meaning of section 3(h)(1):
In analyzing the legislative history, it is important to note that there was both a Senate
and a House version of the bill that became the Federal Mine Safety and Health Act,
and that these versions defined “mine” slightly differently.

Id. at 391.
The court concluded the legislative history:
does not explain Congress’s use of distinct bases for those definitions. The Secretary
attempts to explain the distinction by contending that the words “resulting from”
were inadvertently omitted from section 3(h)(1) in connection with coal preparation
structures. . .
We agree that inadvertent omission may be a plausible explanation for the
distinction between sections 3(h)(1) and 3(h)(2). But the legislative history issimply
not clear enough to demonstrate that Congress intended the words in section 3(h)(1)
to be construed as covering the abandoned silo at issue in this case.

Id. at 392.
The court’s analysis demonstrates that Lancashire does not provide unqualified support for
the Secretary’s position in the present case. The activity at issue in Lancashire is “the work of
preparing coal,” whose structures the court determined were not covered by the phrase “resulting
from.” Coal preparation is not at issue here.
JTM argues that Lancashire actually supports its position because the court follows
§ 3(h)(1)(C) and finds MSHA jurisdiction over “lands, excavations, [etc.] . . .used in, or to be used
in, or resulting from the work of extracting . . .minerals.” JTM argues that, since at one time
Reynolds extracted bauxite from the E-40 site, the E-40 site as a whole resulted from the work of
extracting minerals and thus is under MSHA’s jurisdiction. JTM’s reliance on Lancashire is also
misplaced. Lancashire deals with a structure (a coal silo), covered under § 3(h)(1)(C). At issue here
are haul roads, which are not covered under section (C) of the statute.12
The Secretary cites Bush & Burchett, Inc. v. Reich, 117 F. 3d 932 (6th Cir. 1997), in support
of its position because in that case the Sixth Circuit Court of Appeals limited MSHA’s jurisdiction,
under § 3(h)(1)(B), over “private ways and roads appurtenant to [an area of land from which
minerals are extracted].”
In Bush & Burchett, the owner of a coal mine contracted with the respondent to build a bridge
to connect the mine to a railroad loadout facility, located on the opposite side of a river. The contract
between the owner and the respondent provided that, upon completion, the bridge and connecting
haul road would be conveyed to the state of West Virginia to become part of the state highway
system.
During the construction of the bridge, two of respondent’s employees were killed when a
boom crane collapsed on top of a pier where they were standing. The day following the fatalities
OSHA sent a compliance officer to the site to investigate, after the OSHA area office had conferred
with the MSHA area office, and both had determined that MSHA did not have jurisdiction at the
accident site. BBI argued that MSHA’s jurisdiction preempted OSHA’s jurisdiction. The
Occupational Safety and Health Review Commission affirmed the citations. The Sixth Circuit
affirmed the decision of the Review Commission.
BBI argued that the bridge work came under the definition of a “mine” by virtue of
§ 3(h)(1)(B), because the public road being constructed was “appurtenant to” a coal mine. In
rejecting this argument, the Sixth Circuit emphasized that the road connecting the bridge to the mine
was public, thus it did not come under the § 3(h)(1)(B) “private ways” specification.
Although BBI’s position is not wholly without merit, since the Act is to be given a
very broad reading, we cannot accept BBI’s reading of § 802(h)(1)(B). Not only does
the statute not compel such a reading, but also such a reading is contrary to common
sense. Without some limitation on the meaning of “roads appurtenant to,” MSHA
jurisdiction could conceivably extend to unfathomable lengths since any road
appurtenant to a mine that connects to the outside world would necessarily run into

12
The citation identifies the location where the exposure occurred as “in and around the E-
40 pit.” The hearing focused on the employees’ exposure to Alroc while they were working
on the haul roads. The haul roads are what will be considered by the undersign ed in
determining the jurisdictional issue.
 yet other roads, thus becoming one contiguous road. Because of the potential reach
of MSHA jurisdiction if the definition in § 802(h)(1)(B) is left unfettered, “private
ways and roads” cannot simply mean “any road.” Otherwise, there could conceivably
be no limit to MSHA jurisdiction, a result Congress clearly did not intend.

Id. at 937.

    The present case is distinguishable from this aspect of Bush. The haul roads constructed by

JTM and Oxford were private ways, and there is no danger that finding they are “appurtenant to” the
E-40 pit could extend MSHA’s jurisdiction to “unfathomable lengths.” The haul roads constructed
by JTM and Oxford ran between the E-40 pit and the spoil piles at Four Lakes (Exh. R-9). The haul
roads surfaced with Alroc were all used in connection with the reclamation of the E-40 mine pit
(Tr. 349).
While Bush supports JTM’s position in this regard, it fails to support it in another crucial
aspect. The problem of the use of voice tenses surfaces in Bush, as it did in Lancashire. Read
together, § 3(h)(1)(A) and (B) state that a “mine” is “an area of land from which minerals are
extracted . . . [and] private ways and roads appurtenant to such area[.]” The definition is in the
present tense. In order to be considered a mine, the area of land in question must currently be
undergoing extraction of minerals. Bauxite was last extracted from the E-40 site in 1983.
JTM argues that the three tenses used in § 3(h)(1)(C) apply to the haul roads, so that they are
“resulting from the work of extracting” minerals. BBI made the same argument in Bush, claiming
that the bridge was a structure resulting from the work of extracting minerals. The Sixth Circuit
rejected this argument, stating “[I]t is not clear from the statute or legislative history that Congress
intended to include roads within the meaning of 30 U.S.C. § 802(h)(1)(C), since Congress
specifically dealt with roads in § 802(h)(1)(B).” Id. at 939.
The Sixth Circuit’s analysis is reasonable. As noted in Lancashire and other decisions, the
MSH Act’s definition section is not a model of clarity. The use of the different tenses in different
sections of the statute can lead (and have led) to confusion. The most straightforward reading of the
statute, however, appears to be that the use of the qualifying phrase “used in, or to be used in, or
resulting from, the work of extracting” minerals applies only to those items listed in (C), and not to
(A) and (B).13 The haul roads were constructed years after the last bauxite extraction had occurred.
They were constructed for two reasons: to provide access to the reclamation project and to test
whether Alroc was suitable as roadbed material.
Based upon this reasoning, the undersigned concludes that the haul roads were not under
MSHA’s jurisdiction at the time of the OSHA inspection. Bauxite was no longer being extracted
from the E-40 site. Thus, the haul roads did not constitute a “mine” within the meaning of § 3(h)(1)
of the MSH Act.
OSHA’s jurisdiction was not preempted under § 4(b)(1) by MSHA. OSHA properly had
jurisdiction over the E-40 site at the time of the OSHA inspection.
THE CITATION
The Secretary has the burden of proving her case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or, with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Item 1: Alleged Serious Violation of § 1910.1200(h)(3)(iii)
The Secretary alleges that JTM committed a serious violation of § 1910.1200(h)(3)(iii),
which provides:
Employee training shall include at least:
...
(iii) The measures employees can take to protect themselves from [the physical and
health hazards of the chemicals in the work area], including specific procedures the
employer has implemented to protect employees from exposure to hazardous
chemicals, such as appropriate work practices, emergency procedures, and personal
protective equipment to be used[.]

   The Secretary alleges the following violative conduct for this item in the citation:

13
JTM a ttempts to insert its reclamation work under (C) by arguing that the haul roads
were constructed on lands (one of the items listed in (C)) resulting from the extraction of the
mineral bauxite. JTM’s argument reads (B) out of the statute. The argument is rejected.
 For employees engaged in job operations in and around the E-40 Mine Reclamation
Area, the employer did not conduct hazard communication training which included
measures employees could take to protect themselves from chemical hazards
associated with exposure to road bed materials and Alroc (treated pot liner). Bulk
analysis of these materials indicated a pH of 11.5.

                               Applicability of the Standard
   JTM argues that § 1910.1200(h)(3)(iii) does not apply to the cited conditions because the

Secretary failed to prove that Alroc is a hazardous substance.
Section 1910.1200(c) defines “hazardous chemical” as “any chemical which is a physical
hazard or a health hazard.” Its definition of “health hazard” includes “chemicals which are. . .
irritants. . . and agents which damage the lungs, skin, eyes, or mucous membranes.”
The material safety data sheet (MSDS) for Alroc states that Alroc has a tested pH of 11.2 to
11.5 (Exh. C-6). OSHA’s analysis of bulk samples of Alroc taken at the site show a pH of 11.5
(Exh. C-8). The MSDS includes the following items in the section titled “Health Hazards”
(Exh. C-6):
Acute--Avoid skin and eye contact. This product is alkaline and may produce skin
and eye irritation. If dust exposure is kept below the TLV’s for nuisance dust,
fluoride should not represent a health hazard.
Chronic--Overexposure to fluoride may cause increased bone density. Dermatitis
may occur from prolonged skin contact.
Signs and Symptoms of Exposure--Eye, skin or respiratory tract irritation.
Medical Conditions Generally Aggravated by Exposure--Pre-existing upper
respiratory and lung diseases such as, but not limited to, bronchitis, emphysema, and
asthma.

   The MSDS warns employees working with Alroc to wear goggles and a face shield “as

appropriate” and to wear rubber or cloth gloves “as necessary.”
The Secretary has established that Alroc is properly classified as a hazardous chemical. The
MSDS states that exposure to Alroc can irritate the eyes, skin, or respiratory tract. The definition
of “health hazard” encompasses such irritants. Section 1910.1200(h)(3)(iii) applies to the Alroc at
the worksite.
Noncompliance with the Standard
JTM claims that it provided training to its employees on working with Alroc. John Reeder,
JTM’s plant manager for its Gum Springs site, testified that he had trained JTM employees in March
1996. He stated that he provided each employee with a copy of the MSDS for Alroc and that he read
each section of the MSDS to the employees. The meeting lasted for one hour, thirty minutes of
which was spent going over the MSDS on Alroc. The employees signed attendance sheets at the
meeting (Exh. R-4; Tr. 360-363).
William Lyle Smith, a JTM employee, attended the meeting held by Reeder. He stated that
Reeder’s training on Alroc consisted of telling the employees “not to handle it or, you know, not to
come into direct contact with it” (Tr. 131). When asked if JTM had any emergency procedures in
place for exposure to Alroc, Smith replied, “I don’t guess so” (Tr. 131). JTM did not provide
training on the proper personal protective equipment to wear when working with Alroc
(Tr. 140-141).
JTM’s training is inadequate for purposes of the standard. Section 1910.1200(h)(3)(iii)
requires the employer to train employees in specific measures the employer has taken to protect the
employees,such as emergency procedures and personal protective equipment to be used. JTM failed
to provide its employees with any training beyond telling them to avoid direct contact with the Alroc.
It was not possible to follow these instructions at the E-40 site. The Alroc dust was constantly
swirling all around the employees, caking their skin and getting in their hair and clothes. JTM failed
to explain to its employees measures they could take to protect themselves from the health hazards
presented by the Alroc. JTM did not comply with § 1910.1200(h)(3)(iii)
Employee Exposure
JTM employees were working at the E-40 site on July 18, 1997. Smith stated that driving
on an Alroc road and raising dust was a daily occurrence (Tr. 151). Smith testified that he had
helped tear up the Alroc roads during that summer (Tr. 149). JTM manager Reed testified that he
was exposed to Alroc dust every day (Tr. 358).
The Secretary has established that JTM’s employees were exposed to Alroc during the period
stated in the citation.
Employer Knowledge
JTM was aware that Alroc is a hazardous chemical and that JTM was not providing the
required training. The company had the information from the MSDS identifying Alroc as a skin,
eye, and lung irritant. Reed, a management employee, was in charge of the hazardous substance
training. The training he gave was inadequate. As a supervisory employee, Reed’s knowledge of
the inadequacy of the training is imputed to JTM.
 The Secretary has established that JTM committed a violation of the cited standard.
The hazard created byJTM’s failure to provide adequate training to its employees is that they
would fail to use proper personal protective equipment when working with Alroc, possibly resulting
in irritations of their eyes, skin, or lungs. The violation is classified as serious.
Item 2: Alleged Serious Violation of § 1910.132(a)
The Secretary alleges that JTM committed a serious violation of § 1910.132(a), which
provides:
Protective equipment, including personal protective equipment for eyes, face, head,
and extremities, protective clothing, respiratory devices, and protective shields and
barriers, shall be provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner
capable of causing injury or impairment in the function of any part of the body
through absorption, inhalation or physical contact.

                                Applicability of the Standard
    JTM argues that the Secretary failed to prove the existence of a hazard to employees of

sufficient severity to warrant the use of PPE. JTM contends that Alroc contains mild irritants not
capable of causing substantial injury or impairment to employees. “The broad personal protective
equipment standard at section 1910.132(a) applies to the facts of the case if a reasonable person
familiar with the circumstances, including facts unique to an industry, would recognize a hazardous
condition requiring the use of personal protective equipment.” Lukens Steel Company, 10 BNA
OSHC 1115, 1123 (No. 76-1053, 1981).
JTM’s employees experienced symptoms associated with exposure to a highly alkaline
material such as Alroc. Employees working at the site complained that the Alroc irritated their skin,
especially when they were sweating (Tr. 127). Employees experienced severe headaches while
working with Alroc (Tr. 22, 84, 116).
JTM employees Jim Boulder and Rickie Nutt testified that they did not develop rashes or
have any other adverse reactions to working with Alroc (Tr. 457, 470). JTM argues that the absence
of reaction to Alroc in these employees, as well as the failure on the Secretary’s part to prove a
causal connection between Alroc and the other employees’ rashes and headaches, results in a failure
of proof for the existence of a hazard that would require the use of PPE.
 The fact that not all employees developed rashes or headaches does not negate the existence
of a hazard. People have differing sensitivities to environmental irritants. The fact that one
employee may have a higher tolerance for a hazardous substance than another employee does not
render the substance any less hazardous.
The dispositive evidence on this issue is the MSDS for Alroc. It details the signs and
symptoms of exposure, and lists the medical conditions aggravated by exposure. The MSDS
recommends the use of PPE when working with Alroc. A reasonable person familiar with the MSDS
who knew that his employees were working daily with Alroc, to the extent that they were regularly
coated with dust from the Alroc, would have required the use of PPE. Section 1910.132(a) applies
to the cited conditions.
JTM also argues that (JTM’s brief, pp. 42-43):
the subject of eye protection is covered by a more specific standard which was not
cited. The standard, 29 CFR § 1910.133, specifically addresses the need for eye
protection and because it is more specific, it preempts §1910.132(a) and renders
§ 1910.132(a) inapplicable to eye protection. It should be noted that § 1910.133(a)
requires eye protection to protect against the hazards of flying particles, molten
metal, liquid chemicals, acids, or caustic liquids, chemical gases or vapors, or
potentially injurious light radiation. Mere dust particles, alkaline or not, do not
require eye protection. Therefore, the use of eye protection is not properly an issue.

   JTM is correct in its recitation of the hazards that § 1910.133(a) was designed to protect

against. “Mere dust particles” are not included among those hazards. The cited § 1910.132(a),
however, requires the use of personal protective equipment (PPE) for eyes “wherever it is necessary
by reason of hazards of processes or environment, [and] chemical hazards[.]” Therefore,
§ 1910.132(a) addresses the hazard of exposing of the employees’ eyes to the hazardous chemical
Alroc more specifically than does § 1910.133(a). Section 1910.133(a) does not preempt
§ 1910.132(a), and the use of eye protection is properly an issue in this case.
Noncompliance with the Standard
Compliance officer William Cole testified that the PPE needed to protect employees from
the hazards of Alroc were “Tyvek suits for your skin exposure; protective gloves that prevent the
material from being on the hands; boots and eye protection, such as goggles or some kind of perhaps
safety glasses with a face shield to keep the dust off of the face and eye area” (Tr. 203).
 William Smith wore safety glasses, ear plugs, and steel-toed boots. He wore short-sleeved
shirts. He stated that the other JTM employees wore the same thing (Tr. 132).
The record establishes that JTM did not require its employees towear appropriate PPE when
working with Alroc. Its employees wore short sleeved shirts that exposed their arms to contact with
the Alroc dust. They wore safety glasses but not goggles or face shields. JTM was in
noncompliance with § 1910.132(a).
Employee Exposure
JTM’s employees were exposed to Alroc on a daily basis (Tr. 151, 172, 177).
Employer Knowledge
JTM was aware that it did not require its employees to wear any PPE other than safety
glasses.
The Secretary has established a violation of § 1910.132(a). The hazard created by failure to
comply with the standard is that employees experienced exposure to the chemical irritants in Alroc.
The violation is classified as serious.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravityof the violation, (3) the good
faith of the employer, and (4) the history of previous violations. The gravity of the violation is the
principal factor to be considered.
The record does not establish the size of JTM’s business. No evidence or prior violations
or of bad faith was adduced. The gravity of the violations is low. The exposure was nearly constant
while five JTM employees were at the site, but the harmful effects of the Alroc to which they were
exposed were mild. It is determined that the appropriate penalty for item 1 and item 2 is $600.00
each.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
 1. Item 1 of the citation, alleging a serious violation of § 1910.1200(h)(3)(iii), is
affirmed and a penalty of $600.00 is assessed; and
2. Item 2 of the citation, alleging a serious violation of § 1910.132(a), is affirmed and
a penalty of $600.00 is assessed.

                                                      /s/
                                                NANCY J. SPIES

Date: December 13, 1999 Judge