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Secretary of Labor v. Cranesville Aggregate Companies, Inc.

United States Court of Appeals, Second Circuit

December 18, 2017

Secretary of Labor, Petitioner-Appellant,
v.
Cranesville Aggregate Companies, Inc., DBA Scotia Bag Plant, Respondent-Appellee.

          Argued: May 11, 2017

         The Secretary of Labor (the "Secretary") seeks review of an order of the Occupational Safety and Health Review Commission (the "Commission"), vacating a number of citations for various workplace violations of Occupational Safety and Health Administration ("OSHA") standards. The Commission concluded that the Occupational Safety and Health Act (the "OSH Act") had no application, and OSHA lacked authority over the cited work conditions, because the work was covered by the Mine Safety and Health Act (the "Mine Act") and therefore subject to regulation by the Mine Safety and Health Administration ("MSHA"), rather than OSHA. In this appeal we are required to decide whether the Secretary's determination that OSHA, rather than MSHA, governed the areas in which the workplace conditions existed. In so doing, we conclude that the Secretary reasonably determined that the cited workplace conditions were subject to OSHA-rather than MSHA-regulation.

          Ronald J. Gottlieb (M. Patricia Smith, Ann S. Rosenthal, Charles F. James, on the brief), U.S. Department of Labor, Washington, DC, for Petitioner.

          Walter Breakell, Breakell Law Firm P.C., Albany, New York, for Respondent.

          Before: Leval, Pooler, and Hall, Circuit Judges.[*]

          HALL, CIRCUIT JUDGE.

         This petition for review arises out of an action brought by the Secretary of Labor against Cranesville Aggregate Companies, Inc. ("Cranesville") to enforce citations for safety hazards that were issued by the Occupational Safety and Health Administration ("OSHA") pursuant to the Occupational Safety and Health Act (the "OSH Act"). The Secretary seeks our review of a decision of the Occupational Safety and Health Review Commission (the "Commission"), which determined that OSHA was without authority over the work in question because that work was subject to the Mine Safety and Health Act (the "Mine Act"), rather than the OSH Act.

         Following receipt of complaints and an inspection, the Occupational Safety and Health Administration ("OSHA") issued Cranesville six citations for violations of various OSHA standards found at Cranesville's "Bag Plant" at its sand and gravel operation. Cranesville contested the citations and argued that OSHA's authority over the cited work conditions is governed not by the OSH Act but by Mine Act because the Mine Act gives the Mine Safety and Health Administration ("MSHA") authority to enforce violations at the Bag Plant. After an administrative hearing, an Administrative Law Judge ("ALJ") vacated the citations, concluding that, because MSHA had authority over the cited working conditions, OSHA's standards did not apply to it. The Secretary subsequently sought a petition for discretionary review by the Occupational Safety & Health Review Commission (the "Commission"). Because the two Commissioners remaining on the Commission could not agree on whether the Mine Act or the OSH Act applied to the cited conditions, the ALJ's decision vacating the citations became final.[1]

         We conclude that the Secretary reasonably determined that the cited workplace conditions were subject to OSHA regulation. The ALJ therefore erred in determining that the OSHA citations were not enforceable.

         The Bag Plant is subject to MSHA authority if it is a "mine" within the meaning of the Mine Act. The Mine Act defines the term "mine" to include structures and facilities used in "milling" minerals. The Mine Act, however, leaves it to the Secretary to define the term "milling." The Secretary's reasonable determination regarding which conditions are to be regulated by MSHA and which by OSHA is entitled to substantial deference. The ALJ gave no deference whatsoever to the Secretary's decision to issue the citations for the Bag Plant violations under the authority of OSHA, but rather imposed his own interpretation of what the Mine Act covered.

         For the reasons that follow, the decision of the Commission upholding the ALJ's decision is Reversed and Remanded.

         I. BACKGROUND

         A. The Statutory and Regulatory Framework

         This appeal involves the interplay of two federal statutes: the OSH Act and the Mine Act, both administered under the authority of the Secretary of Labor. The Secretary of Labor is authorized to enforce the OSH Act, which is designed to ensure the safe working conditions for every worker in the nation. 29 U.S.C. § 651(b). When Congress enacted the OSH Act, however, certain federal agencies already had authority to regulate occupational safety and health of employees engaged in specific fields. Accordingly, Congress included section 4(b)(1) in its promulgation of the OSH Act. 29 U.S.C. § 653(b)(1). Section 4(b)(1) provides: "[n]othing 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." 29 U.S.C. § 653(b)(1). Pursuant to this provision, the OSH Act does not apply when (1) another federal agency has statutory authority to regulate the cited working conditions and (2) that other agency has exercised such authority by issuing applicable regulations. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 241-42 (2002).

         The Secretary also has the authority to enforce, through the Mine Safety and Health Administration ("MSHA"), the Mine Act. 30 U.S.C. §§ 801-962. Under the Mine Act, MSHA has jurisdiction to regulate the working conditions at mines, that is, sites used for extracting, milling, or preparing minerals.[2] See 30 U.S.C. §§ 802(h)(1), 803. While the Mine Act does not explicitly define the term "milling, " it provides that in determining "what constitutes mineral milling for purposes of this chapter, the Secretary shall give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment." Id.

         Additionally, an interagency Memorandum of Understanding ("MOU") between OSHA and MSHA issued in 1979 further explains what constitutes a mine, subject to MSHA regulation. The MOU defines "milling" as "the art of treating the crude crust of the earth to produce therefrom the primary consumer derivatives." Joint App'x at 394-95. The MOU lists "drying" among the processes that can constitute "milling."[3] Joint App'x at 394-95. "Drying" is defined as "the process of removing uncombined water from mineral products, ores, or concentrates, for example, by the application of heat, in air-actuated vacuum type filters, or by pressure type equipment." Joint App'x at 395.

         The MOU also explains, however, that despite the above definitions, "there will remain areas of uncertainty regarding the application of the Mine Act, especially in operations near the termination of the milling cycle and the beginning of the manufacturing cycle." Joint App'x at 391. It states, moreover, that the "term milling may be narrowed to exclude from the scope of the term processes listed . . . where such processes are unrelated, technologically, or geographically, to mineral milling." Joint App'x at 391. The MOU also clarifies that OSHA may have authority over facilities on mine property when the material from the mine, such as sand, arrives at the plant stockpile or when milling is completed. In evaluating whether a particular process might be considered "mineral milling, " and thus covered by MSHA, the Secretary considers a non-exhaustive list of factors, including:

[T]he processes conducted at the facility, the relation of all processes at the facility to each other, the number of individuals employed in each process, and the expertise and enforcement capability of each agency with respect to the safety and health ...

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