Secretary of Labor v. Cactus Canyon Quarries, Inc.

Plain-English summary

MSHA cited three electrical conditions at Cactus Canyon's Fairland Plant, which crushes and sizes stone for terrazzo flooring. The company argued that the facility was outside Mine Act jurisdiction because extraction did not occur on or near the site. The Commission held that crushing and sizing are milling activities, which independently make the facility a mine, and that its sales across North America and Asia affect commerce. It also held that a circuit-breaker box is switchgear requiring suitable clearance under 30 C.F.R. § 56.12019 and found no prejudicial error in an extension granted for the Secretary's penalty petition. The Commission affirmed the Judge's decision, leaving two citations affirmed as issued and one affirmed with negligence reduced from moderate to low.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12004 and 56.12019; 30 U.S.C. §§ 802(h)(1)(C) and 803
• Outcome: Three electrical citations were upheld, including one with reduced negligence.
• Key point: A standalone stone-processing facility is subject to MSHA when its crushing and sizing work constitutes milling and its products affect commerce.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

|
SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA)
v.
CACTUS CANYON QUARRIES INC. |
|
|
Docket No. CENT 2022-0010-M
|

BEFORE: Rajkovich, Chair; Jordan, Baker and Marvit, Commissioners

DECISION

BY THE COMMISSION:

This matter, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.§ 801 et seq. (2024) (“Mine Act” or “Act”), primarily concerns a question of Mine Act jurisdiction.

The Fairland Plant, operated by Cactus
Canyon Quarries, Inc. (“Cactus Canyon”), is a surface facility that prepares
stone for use in Terrazzo flooring.[1]
During an inspection of the plant, an inspector with the Department of Labor’s
Mine Safety and Health Administration (“MSHA”) issued Cactus Canyon three
citations involving electrical equipment. Cactus Canyon argued below that MSHA
lacked jurisdiction to issue the citations because the plant is not a “mine”
subject to the Act.

A Commission Administrative Law Judge concluded
that the Fairland Plant is a “mine

. . . [the] products of which affect commerce” and is therefore subject to the
provisions of the Mine Act. 45 FMSHRC 384, 388-89 (May 2023) (ALJ) (citing 30
U.S.C. § 803). He found that the sale of stone processed at the plant affects
commerce; that the crushing and sizing activities occurring at the plant fall
within the definition of “milling;” and that a facility engaged in milling
qualifies as a mine irrespective of its proximity to an extraction site.[2]
Id. at 389-95. The Judge ultimately affirmed two citations as issued,
and one citation with a reduction in the degree of cited negligence. Id.
at 402.

On appeal, Cactus Canyon again asserts
that the Fairland Plant is not subject to MSHA jurisdiction. Specifically, it claims
the Judge erred in considering whether the plant was engaged in commerce, in
finding that the plant was engaged in milling, and in stating that proximity to
an extraction site is not required for MSHA jurisdiction. PDR at 29.[3]

Cactus Canyon also individually challenges Citation No. 9643095, which alleges that access to a breaker box was blocked in violation of 30 C.F.R. § 56.12019 (requiring suitable clearance at stationary electrical equipment or switchgear). Specifically, Cactus Canyon claims the Judge erred in finding that the breaker box was covered by the standard. PDR at 10.

Cactus Canyon raises one final basis for
appeal.
At the start of this proceeding, the Secretary of Labor moved for an extension
of time to file her penalty petition. The Chief Administrative Law Judge
granted the motion, the Secretary filed her petition consistent with the extension,
and the Judge below upheld the extension order. See 45 FMSHRC at
385-86. Cactus Canyon asserts on appeal that the Judge erred in upholding the
Chief Judge’s order. PDR at 9.

For the reasons below, we affirm the Judge’s decision.

I.

Factual and
Procedural Background

Cactus Canyon operates the Fairland Plant, a surface facility in Burnet County, Texas. The plant originally produced architectural precast from stone mined at Cactus Canyon quarries but has since shifted to preparing dimension stone for use in Terrazzo flooring. Approximately 10-15% of the plant’s stockpiled material originated at a Cactus Canyon quarry, while the rest is brought in from Mexico, Vulcan Materials sites, and local Texas mines. The plant does not engage in extraction, nor is it on or next to an extraction site. Tr. 142-43, 149-50, 152, 173.

Terrazzo flooring is made from mixed stone
and epoxy that has been ground, smoothed and polished. Tr. 171. The stone
must be a very particular size and shape–no more than 3/8 of an inch thick and
almost perfectly cubical. Tr. 145-46, 149. The Fairland Plant sorts and
resizes dimension stone to meet these specifications. Tr. 147-48, 171. The
plant brings in stone that is 5-10 inches in diameter, which is washed,
examined, sorted for color and quality, and stockpiled. Tr. 147-48, 153. Next,
oversized stone is crushed using hydraulic hammers and cone crushers. The material
is then screened and crushed again to achieve the desired size and shape. The
stone is circulated through the crushing and screening process four to six
times. Tr. 145-47, 152, 175-77. This process results in 10-15% loss of materials
to “fines,” i.e., particles “smaller than the minimum specified size or grade.”
Tr. 176; DMMRT 208. Once resized to specification, the stone is sold
“across North America and . . . occasionally [Asia].” Tr. 145, 147.

During a July 2021 inspection of the
Fairland Plant, Cactus Canyon was issued three citations involving electrical
equipment. Citation Nos. 9643093 and 9643094 allege that the operator failed
to protect electrical conductors exposed to mechanical damage, in violation of

30 C.F.R. § 56.12004. Citation
No. 9643095 alleges
that access to a circuit breaker box was blocked in violation of 30 C.F.R. § 56.12019,
which requires operators to provide “suitable clearance . . . at stationary
electrical equipment or switchgear.”

Cactus Canyon timely contested the Secretary’s proposed penalty assessments, and the matter was docketed before the Chief Administrative Law Judge. The Secretary then requested an extension of time to file her penalty petition, which the Chief Judge granted. The Secretary filed her petition on January 18, 2022, consistent with the extension order, and the matter was assigned to the Judge below.

Cactus Canyon repeatedly and
unsuccessfully challenged the validity of the extension order, alleged that the
Secretary’s petition was late-filed without good cause, and sought to have the
case dismissed.[4]
The Judge concluded that the Chief Judge had jurisdiction to rule on the
Secretary’s request and no extraordinary circumstances warranted overturning
the Chief Judge’s finding of good cause to grant the extension. 44 FMSHRC 609,
610-11 (Aug. 2022) (ALJ).

A hearing was held on February 28, 2023. MSHA Inspector Ray Hurtado was the only witness for the Secretary, while Cactus Canyon’s President was both sole counsel and the only witness for the Respondent.

In his decision after hearing, the Judge first
concluded that Cactus Canyon’s Fairland Plant is subject to MSHA jurisdiction. He
determined that the facility is a mine because the crushing and sizing
activities at the facility fall within the commonly understood definition of
milling, and facilities engaged in milling independently qualify as mines under
the Mine Act. He also determined that the intra- and inter-continental sale
of dimension stone processed at the plant clearly affects commerce.
Accordingly, as a “coal or other mine . . . the operations or products of which
affect commerce,” the Fairland plant is subject to the provisions of the Mine
Act. 45 FMSHRC at 388-95, quoting 30 U.S.C. § 803.

Having concluded that MSHA had jurisdiction to issue the citations, the Judge then turned to the citations themselves. He affirmed Citation No. 9643093 as issued, and affirmed Citation No. 9643094 with a reduction in the cited negligence from moderate to low. These determinations have not been appealed. The Judge also affirmed Citation No. 9643095, on the basis that the blocked breaker box constituted “switchgear” requiring suitable access pursuant to 30 C.F.R. § 56.12019. 45 FMSHRC at 400-01.

II.

Disposition

a. The Judge Did Not
Materially Err by Granting the Secretary’s Request for an Extension of Time

As a preliminary matter, we find no error
justifying dismissal in the Chief Judge’s order granting the Secretary an
extension of time to file her penalty petition, or in the Judge’s decision
upholding that order. Cactus Canyon asserts that a “jurisdictional error” has
occurred. Br. at 13. However, we agree with the Judge that any errors
surrounding the extension order and petition were, at worst, mere procedural
irregularity. 44 FMSHRC at 611. Cactus Canyon claims the Secretary improperly
requested permission before late-filing her petition and admits it
“would not have protested” if the Secretary had requested permission to
late-file concurrently with her delayed petition. Reply at 10-11. Assuming
arguendo that an error occurred, a simple failure to submit filings in
the correct order is procedural rather than jurisdictional.

Section 105(a) of the Act states that the
Secretary is to provide the operator notice of a proposed penalty “within a
reasonable time” after the issuance of a citation or order. 30 U.S.C.

§ 815(a). Section 105(d) of the Act states that when an operator files a
notice contesting a proposed penalty, “the Secretary shall immediately advise
the Commission of such notification, and the Commission shall afford an
opportunity for a hearing.” 30 U.S.C. § 815(d). Commission Procedural Rule 28
effectuates these statutory provisions by requiring the Secretary to file a
penalty petition within 45 days of an operator’s contest to a proposed
penalty. 29 C.F.R. § 2700.28. We note “only timing rules that have a
statutory basis are jurisdictional.” Youkelsone v. FDIC, 660 F.3d 473,
475 (D.C. Cir. 2011); see also Kontrick v. Ryan, 540 U.S. 443, 452 (2004).
Purely regulatory deadlines like the 45-day requirement in Rule 28 are always
claim-processing rules and therefore do not deprive the Commission of
jurisdiction. See Youkelsone, 660 F.3d at 475-76. The Commission has
long recognized that the Secretary’s failure to meet the 45-day deadline in
Rule 28 does not form a basis for dismissal, absent a showing of prejudice. Long
Branch Energy, 34 FMSHRC 1984, 1990 (Aug. 2012) (“Commission enforcement of
the filing time limits is a secondary consideration to the primary purpose of
section 105(d), i.e., ensuring prompt enforcement of the Act's penalty scheme.”);
see also NLRB v. Seine & Line Fisherman’s Union of San Pedro,
374 F.2d 974, 981 (9th Cir. 1967); Sage Products, LLC v. Stewart, 133 F.4th
1376, 1386 (Fed. Cir. 2025). Here, as the Judge noted, Cactus Canyon has not
asserted prejudice of any kind.[5]
44 FMSHRC at 611. We find no basis to conclude that the Judge abused his
discretion in upholding the Chief Judge’s order, nor do we find any error
regarding the extension order or penalty petition that would justify dismissing
the proceeding.

b. The Judge
Correctly Determined that the Fairland Plant is Subject to Mine Act
Jurisdiction

The central issue in this matter is
whether the Fairland Plant is subject to the Mine Act, such that MSHA may
conduct inspections and issue citations. The Act states that “[e]ach coal or
other mine, the products of which enter commerce, or the operations or products
of which affect commerce . . . shall be subject to the provisions of th[e]
Act.” 30 U.S.C. § 803. The record clearly establishes that the plant “affect[s]
commerce.”[6]
45 FMSHRC at 394-95. Accordingly, Mine Act coverage turns on whether the
Fairland Plant is a “mine.” We uphold the Judge’s well-reasoned decision and
find that it is.

The
Judge found that the Fairland Plant is a mine because the plant’s crushing and
sizing activities constitute milling, and milling facilities independently
qualify as mines under the Act regardless of whether extraction occurs on or
near the facility. He rejected Cactus Canyon’s argument that the separation of
valuable constituents from undesired contaminants is essential to the milling
process but noted that even if separation is essential to milling, such
activity occurs at the plant. Id. at 389-92. For the reasons below, we
agree on all points. We also reject the operator’s alternative argument that Fairland
is a stone finishing plant and therefore exempt from Mine Act coverage.

We have long recognized that milling
activity independently qualifies a facility as a mine. E.g., Drillex,
Inc., 16 FMSHRC 2391, 2395 (Dec. 1994). The Mine Act defines a mine to
include facilities used in “the work of extracting such minerals . . .
or . . . the milling of such minerals, or the work of preparing
coal or other minerals.” 30 U.S.C. § 802(h)(1)(C) (emphases added). This
tripartite definition “provides an independent basis for jurisdiction over the
enumerated subjects of the mining, milling, or coal preparation process.” National
Cement Co. of Cal., Inc., 30 FMSHRC 668, 676 (Aug. 2008).

In fact, in the legislative history of the
Mine Act, Congress made it clear “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.
95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 602
(1978) (“Legis. Hist”) (emphasis added). Congress further stated that “doubts [shall] be resolved in favor
of inclusion of a facility within the coverage of the Act.” Id. Accordingly, the
Commission has consistently construed section 3(h)(1) broadly in favor of Mine
Act coverage and recognized that “jurisdictional doubts [shall] be resolved in
favor of coverage by the Mine Act.” Calmat Co. of Ariz., 27 FMSHRC 617, 624 (Sept.
2005) (holding that the cited haul trucks “were clearly related to mining
operations and within MSHA's jurisdiction.”).

Because the statute provides independent
bases for jurisdiction over extraction, milling and preparation, milling or
preparation facilities need not engage in extraction to be covered by the Mine Act.
E.g., Power Fuels LLC, 777 F.3d 214, 218 (4th Cir. 2015); Donovan v. Carolina Stalite Co., 734 F.2d 1547,
1551-52 (D.C. Cir. 1984). Cactus Canyon relies on a geographical proximity
requirement enunciated in KC Transport, 44 FMSHRC 211 (Apr. 2022), to argue
that proximity to an extraction site is required. However, that decision does
not require proximity to an extraction site, only proximity to a mine
site, which it defines to include milling facilities. Id. at
225 (holding that “a facility not located on or appurtenant to a mine site and
not engaged in any extraction, milling, preparation or other activities within
the scope of subsection 3(h)(1)(A) is not a mine”). Nothing in KC Transport
is inconsistent with the long-held understanding that milling provides an
independent basis for jurisdiction. The Judge properly rejected Cactus
Canyon’s argument that the lack of an extraction site is fatal to MSHA’s
jurisdiction.[7]
45 FMSHRC at 394.

To qualify as a milling facility subject
to the Act, the Fairland Plant must meet the definition of milling. Congress has
delegated to the Secretary the authority to determine what constitutes mineral
milling for the purpose of the Act. 30 U.S.C. § 802(h)(1). Pursuant to this
authority, MSHA created an Interagency Agreement with the Occupational Safety
and Health Administration (“OSHA”) that delineates areas of authority between
the two agencies in the context of milling operations. MSHA-OSHA
Interagency Agreement, 44 Fed. Reg. 22827, 22828 (Apr. 17, 1979). The
Agreement broadly states that MSHA has authority over milling operations as a
“general principle” while OSHA has authority over “ancillary operations,” and
notes that jurisdictional determinations should “reflect Congress’ intention
that doubts be resolved in favor of inclusion of a facility within the coverage
of the Mine Act.” Id. at 22827-8.

Appendix A of the Agreement then provides
two descriptions of milling. First, it generally describes milling as “the art
of treating crude crust . . . to produce therefrom primary consumer
derivatives,” and notes that “the essential operation in all such processes is
separation of one or more valuable desired constituents. . . from the undesired
contaminants.” Id. at 22829. It then specifically states that milling
“consists of one or more” of a list of “processes” including crushing, washing
and sizing. Id. at 22829. However, the Agreement recognizes that even
with these definitions “there will remain areas of uncertainty . . .
especially in operations near the termination of the milling cycle.” Id.
at 22828.

The record here unequivocally establishes
that the Fairland Plant meets the “process” based definition of milling. Cactus
Canyon’s President clearly and repeatedly explained that the plant resizes dimension
stone through a process of crushing and screening. Tr. 145-49, 153,
171, 176. The Secretary has defined milling to consist of sizing and crushing,
and common and industry usage also recognize crushing as a milling activity.[8]
44 Fed. Reg. at 22829; Merriam-Webster’s Online Dictionary,
https://www.merriam-webster.com/dictionary/mill (last accessed Feb. 5, 2026) (defining
a mill in part as a machine “for reducing something (as by crushing or
grinding)”); Dictionary.com, https://www.dictionary.com/browse/mill
(last visited Feb. 5, 2026) (defining a mill in the mining context as a place
for “crushing or concentrating ore”); Dictionary of Mining, Mineral and
Related Terms, 344 (2d ed. 1997) (“DMMRT”) (milling is “the grinding
or crushing of ore”). Substantial evidence supports the Judge’s finding that the
plant’s activities meet the widely understood definition of milling.

Cactus Canyon prioritizes the “separation”
description of milling and claims that no such activity occurs at the Fairland
Plant. Br. at 20-21. We note that both the D.C. Circuit and the Commission have
found the Interagency Agreement to be non-dispositive and have rejected the
argument that milling must involve the separation of desired from undesired
materials. Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552-53, 1553
n.10 (D.C. Cir. 1984); Watkins Eng’rs & Constr., 24 FMSHRC 669,
673-76 (July 2002); see also DMMRT 344 (stating that milling “may
include” removing valueless constituents). The D.C. Circuit noted that the
Agreement suffers from “internal inconsistency” and explained that
jurisdictional questions should ultimately be resolved consistent with the
statutory definition of a “mine” and Congress’ intent that close questions be
resolved in favor of Mine Act coverage. Carolina Stalite Co., 734 F.2d at
1552-53.

Regardless, substantial evidence supports
the Judge’s finding that the plant does engage in separation of desired
from undesired material. 45 FMSHRC at 392. Cactus Canyon’s President testified
that the plant circulates dimension stone through crushers and screeners to
achieve the very specific dimensions required for Terrazzo stone, with 10-15%
loss of material to “fines.” [9]
Tr. 145-46, 149, 171, 176. He also testified that the stone must be sorted for
color and quality, since the plant “will lose business” if contaminants or
wrong-colored stone are included. Tr. 153. In other words, the operation discards
contaminants and wrong-colored stones, then uses crushers and screeners to separate
useful stones from “fines” that do not meet the required specifications for
sale. We agree with the Judge that separating “valuable Terrazzo stone
material” from material “that cannot be used in Terrazzo flooring” is the type
of process contemplated by the Interagency Agreement. 45 FMSHRC at 392.

We reject Cactus Canyon’s technical argument
that the fines are not valueless because they can be sold (“if profitable”) for
use in cement and agricultural applications. E.g., Br. at 10-11. The
Agreement refers to “desired” and “undesired” elements. 44 Fed. Reg. at
22829. The Fairland Plant prepares dimension stone for Terrazzo flooring: the
“desired” product is stone that meets the specifications for sale to producers
of Terrazzo. The ability to recoup some financial value through the off-label
sale of the plant’s waste material does not make the fines a desired
constituent of the Terrazzo process. We also note that the record has not been
developed on this issue, and that this argument does not account for stones
discarded due to poor color or quality during the initial sorting process.

In sum, the record establishes that the Fairland Plant sorts, crushes and sizes stone to achieve the specifications required for Terrazzo, and as part of this process, some material is discarded or lost to fines. Under either definition provided in the Interagency Agreement, substantial evidence supports the Judge’s finding that the plant was engaged in milling, and therefore independently qualifies as a mine subject to the Act.

As a final
jurisdictional matter, we reject Cactus Canyon’s argument that the Fairland
Plant is a stone finishing operation and therefore expressly excluded from Mine
Act coverage. Br. at 15-17. Cactus Canyon is correct that the Interagency
Agreement excludes custom stone finishing operations from MSHA jurisdiction. However,
stone finishing “commences at the point when milling, as defined, is completed,
and the stone is polished, engraved, or otherwise processed to obtain a
finished product.” 44 Fed. Reg. at 22830. As the Agreement recognizes,
operations often exist on a continuum, and jurisdictional uncertainty may arise
near the end of the milling cycle and the beginning of the manufacturing
cycle. Id. at 22828. With respect to stone finishing operations,
however, the Agreement is clear: MSHA jurisdiction does not cease until milling
cycle is “completed” and production of a “finished product” begins.

The crushing and
sizing activities at the Fairland Plant clearly constitute milling rather than
finishing. Milling is characterized by activities such as crushing and sizing,
while finishing is characterized by polishing, engraving, or otherwise
obtaining a finished product. * Id. at 22828-30. Only the former occurs
at the Fairland Plant.[10]
We acknowledge that the Fairland Plant occupies an intermediate point in the continuum:
It further mills stone that has already been sized to between 5-10 inches in
diameter. Tr. 145, 171. However, the milled stone is then sold onward to be
finished into flooring by others. At no point does the plant complete its
milling operation and begin processing the stone to obtain a finished product
suitable for consumers. Cf. Carolina Stalite*, 734 F.2d at 1551 (finding
a facility that processed slate into stalite but did not manufacture the
end-product for which the stalite was intended was reasonably characterized as
a mine rather than a stone finishing facility). The Fairland Plant is not a
stone finishing facility.

c. The Judge Did Not
Err in Affirming Citation No. 9643095

As a final matter, the Judge did not err in affirming Citation No. 9643095. The citation alleges that access to a circuit breaker box was blocked, therefore the operator had failed to provide “suitable clearance . . . at stationary electrical equipment or switchgear” in violation of 30 C.F.R. § 56.12019. The Judge interpreted the term “switchgear” to include circuit breaker boxes and ultimately affirmed the citation as issued. 45 FMSHRC at 400-01. On appeal, Cactus Canyon asserts that breaker boxes are not “switchgear” subject to the regulation. Br. at 13-14.

The Secretary’s regulations do not define
the term “switchgear.” As the Judge notes, words that are not defined in a
statute or regulation are given their common, ordinary meaning. Eg., Hecla
Ltd., 38 FMSHRC 2117, 2129 (Aug. 2016), citing Perrin v. United States,
444 U.S. 37, 42 (1979). “Switchgear” is “a general term applied to . . .
controlling, metering, protective, and regulating devices, as well as
assemblies of those devices with associated . . . supporting structures.” DMMRT
557. In turn, circuit breakers “measure fault current . . . [and provide]
overcurrent protection.” DMMRT 100. Rationally, therefore, a breaker
box is a structure supporting an assembly of devices that regulate and protect
current, i.e., a switchgear.

Cactus Canyon has challenged the citations in this proceeding in two respects: it broadly claims the citations should be vacated because MSHA lacked the jurisdiction to issue them, and narrowly challenges the applicability of section 56.12019 with respect to Citation No. 9643095. For the reasons above, we find that the Fairland Plant is subject to MSHA jurisdiction and that the Judge reasonably interpreted section 56.12019 to apply to the breaker box in Citation No. 9643095. Accordingly, the Judge’s decision is affirmed in its entirety.

III.

Conclusion

For the reasons above, we conclude that the Fairland Plant is a mine subject to the Mine Act, such that MSHA had jurisdiction to issue the relevant citations. Additionally, the Judge below reasonably concluded that the breaker box in Citation No. 9643095 was “switchgear” subject to 30 C.F.R. § 56.12019. Finally, we find no prejudicial error justifying dismissal in the Chief Judge’s order granting the Secretary an extension of time to file her penalty petition or in the Judge’s decision upholding that order. Accordingly, the Judge’s decision is affirmed.

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr., Chair

/s/
Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Distribution:

Andy Carson

7232 CR 120

Marble Falls, TX 78654

[email protected]

Jennifer A. Ledig, Esq.

Office of the Solicitor

U.S. Department of Labor

200 Constitution Ave., NW, Suite N-4428

Washington, DC 20210

[email protected]

Thomas Paige, Esq.

Office of the Solicitor

U.S. Department of Labor

200 Constitution Ave., NW, Suite N-4420-N4430

Washington, DC 20210

[email protected]

Melanie Garris

US Department of Labor/MSHA

Office of Assessments, Room N3454

200 Constitution Ave NW

Washington, DC 20210

[email protected]

Acting Chief Judge Michael G. Young

Office of the Chief Administrative Law Judge

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] Terrazzo refers
to “[s]mall chips or pieces of stone . . . made by crushing and screening . . .
used with portland cement in making floors, which are smoothed down and
polished after the cement has hardened.” Am. Geological Institute, Dictionary
of Mining, Mineral and Related Terms 567 (2d ed. 1997) (“DMMRT”).

[2] The Mine Act
defines a “mine” to include facilities used in “the work of extracting
such minerals . . . or . . . the milling of such minerals, or the work
of preparing coal or other minerals.” 30 U.S.C. § 802(h)(1)(C) (emphases
added). That is, according to Congress milling is not an activity that occurs
subsequent to “mining” but instead constitutes mining in its own right, as much
as the extraction of minerals constitutes mining.

[3] Cactus Canyon has
filed a motion requesting that the Commission accept its briefing in Docket No.
CENT 2023-0045, which similarly addresses whether the Fairland Plant is subject
to the Mine Act, as an additional brief in the current matter. Req. to Accept
Pet. Br. (Mar. 4, 2025). The Commission grants the motion and notes that all
legal arguments addressed in the additional briefing were considered in issuing
this decision.

[4] Cactus Canyon first
moved for reconsideration of the extension order, which the Chief Judge did not
grant. It then filed a petition for discretionary review, which the Commission
did not grant. It then petitioned the Fifth Circuit for review of the
Commission’s denial of review. While the appeal was pending, Cactus Canyon moved
to have the proceeding dismissed. The Judge stayed the motion during the
pendency of the Fifth Circuit appeal. The circuit court ultimately dismissed
Cactus Canyon’s petition, and the Judge lifted the stay and denied Cactus
Canyon’s motion. See 44 FMSHRC 609 (Aug. 2022) (ALJ); 45 FMSHRC at
385-86, 386 n.7.

[5] While unreasonable
delay in filing a penalty petition may prejudice an operator, Cactus
Canyon has made no such argument. Regardless, the irregularity here is not the
delay in filing the petition, it is the order in which the paperwork was
filed. The result of the irregularity was that the petition was filed on
January 18, 2022—the same result that would have occurred if the proper
procedure had been followed. The error had no effect on the proceeding.

[6] Cactus Canyon’s
President admitted that the Fairland Plant engages in intra- and
inter-continental trade. Tr. 147-50; see 30 U.S.C. § 802(b). This is
sufficient to meet the Secretary’s minimal burden with respect to the commerce
requirement. Jerry Ike Harless Towing, 16 FMSHRC 683, 686 (Apr. 1994).
On appeal, Cactus Canyon claims that engagement in commerce is irrelevant to
Mine Act coverage, or alternatively, that the plant is exempt solely because
its products do not enter commerce. See Br. at 9, 30-33. These
arguments are patently incorrect in light of the plain language of the Act. 30
U.S.C. § 803.

[7] After the
parties’ briefing in this matter, the D.C. Circuit reversed the Commission’s
decision in KC Transport, Inc. No. 22-1071, 2026 WL 1042075 (D.C. Cir. Apr.
17, 2026), reversing 44 FMSHRC 211 (Apr. 2022). Cactus Canyon is
located in Texas and therefore falls under the Fifth Circuit. Regardless, although
the D.C. Circuit reversed the Commission in result, it held a facility is
defined as a mine “when it is necessarily connected with the use and operation
of extracting, milling, or processing coal and other minerals.” Id.
at 41 (emphasis added). The circuit court’s decision remains consistent with
the long-held understanding that a facility engaged in “milling” independently
qualifies for MSHA jurisdiction.

[8] While the
Secretary’s list of milling processes does not explicitly include screening, the
Commission has noted that screening is used to size material. See State
of AK, Dep’t of Transp., 36 FMSHRC 2642, 2649 (Oct. 2014). We also note
that the Fairland Plant washes stone (Tr. 153) and “washing” is included in the
Secretary’s list. 44 Fed. Reg. 22827, 22829 (Apr. 17, 1979).

[9] Fines are, by
definition, “smaller than the minimum specified size.” DMMRT 208.

[10] Cactus Canyon’s
witness refers to the plant’s resizing operation as “finishing” (Tr. 146) but
strategic word choices do not change the underlying nature of an activity.