Donovan v. Carolina Stalite Co., s. 82-1467

• Decision Date: 15 May 1984
• Docket Number: Nos. 82-1467,82-1830,s. 82-1467
• Citation: 236 U.S.App.D.C. 264,734 F.2d 1547
• Parties: , 1984-1985 O.S.H.D. ( 26,899 Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. CAROLINA STALITE COMPANY, Respondent. (Two cases.)
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1547

734 F.2d 1547

236 U.S.App.D.C. 264, 1984-1985 O.S.H.D. ( 26,899

Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. CAROLINA STALITE COMPANY, Respondent. (Two cases.)

Nos. 82-1467, 82-1830.

United States Court of Appeals, District of Columbia Circuit.

Argued March 30, 1983.

Decided May 15, 1984.

Petitions for Review of an Order of the Federal Mine Safety and Health Review Commission.

Linda L. Leasure, Atty. Dept. of Labor, Washington, D.C., with whom Cynthia L. Attwood, Associate Sol., and Michael A. McCord, Atty., Dept. of Labor, were on brief, for petitioner.

William C. Kluttz, Jr., Salisbury, N.C., with whom Lewis P. Hamlin, Jr., Salisbury, N.C., was on brief, for respondent.

Before WRIGHT, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

These actions arise from the Secretary of Labor's attempt to assess civil penalties against the Carolina Stalite Company for violations of the Federal Mine Safety and health Act and the mandatory safety standards for sand, gravel, and crushed stone operations set forth in 30 C.F.R. Part 56 (1983). The Federal Mine Safety and Health Review Commission, reversing the administrative law judge, held that penalties could not be imposed. The principal issue on appeal is whether Carolina Stalite's facility constitutes a "mine" within the meaning of section 3(h) of the Act, 30 U.S.C. Sec. 802(h) (1982). We conclude that it does. Since we reject respondent's other contentions as well, we reverse.

I.

Carolina Stalite owns and operates a slate gravel processing facility on property immediately adjacent to a quarry owned and operated by the Young Stone Company in Gold Hill, North Carolina. Stalite and Young are independent corporations and no business relationship exists between the two companies other than that of buyer and seller. Approximately 30% of the stone quarried by Young is delivered to Stalite by means of a conveyor system. The conveyors are owned, operated, and maintained by Young, and Young, as the operator of a quarry, is subject to the Mine Act. Stalite "bloats" the slate in a rotary kiln with intense heat. Respondent uses the unregistered trade name "stalite" to refer to the light-weight material thus created. The stalite is crushed and sized by the company and is sold primarily to be used in making concrete masonry blocks.

In October of 1978, Charles Blume, the Secretary's authorized representative, arrived at the Carolina Stalite facility to inspect the plant pursuant to section 103(a) of the Act. ¹ Following standing instructions from his superiors, the assistant superintendent of the plant denied Blume entry. Blume returned later that day and met with the plant superintendent who also denied the inspector entry. Blume then issued Stalite a citation. ² The following morning, Blume returned to the plant and informed the superintendent that unless he were allowed to inspect the plant, he would immediately issue a closure order shutting down the facility. ³ Blume delayed this threatened action long enough to permit notification of the company's managing partner who arrived at the plant later in the morning accompanied by counsel. On their arrival, however, Blume renewed the closure threat. Company counsel requested two work days to familiarize himself with the provisions of the Mine Act but both Blume and his supervisor, who was reached by telephone, denied the request. Carolina Stalite then allowed the inspection which, along with subsequent inspections, resulted in 133 citations and orders, including the citation issued for the initial refusal to admit the inspector into the plant.

The Secretary moved to assess civil penalties against Carolina Stalite in proceedings before an administrative law judge of the Federal Mine Safety and Health Review Commission. Stalite moved for summary dismissal on jurisdictional grounds, arguing that its facility, not being a "mine", was not covered by the Act. The company also claimed that the evidence acquired during the several inspections was illegally obtained and must be suppressed.

The ALJ ruled that Carolina Stalite's facility was a "mine" under section 3(h)(1)(C) of the Act, which defines a "mine" as including, among other things, lands, "slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property ... used in, or to be used in, the milling ... or the work of preparing coal or other minerals ...." 30 U.S.C. Sec. 802(h)(1)(C) (1982) (emphasis added). The ALJ stated that the dispositive question is whether Stalite engages in mineral milling and preparation, subjecting the company to MSHA jurisdiction, or whether the company operation is "primarily manufacturing in nature," and thus subject to regulation by the Occupational Safety and Health Administration. Joint Appendix ("J.A.") at 30, 32. See also 111 Cong.Rec. 22,815-816 (1965) (setting up distinction between milling and preparation, on the one hand, and manufacturing on the other). Because mineral milling and preparation are not specifically defined in the Act, the ALJ gave considerable deference to an inter-agency agreement and memorandum of understanding between MSHA and OSHA. ⁴ Those documents set out, to a certain extent, each agency's jurisdiction and identify several explicit examples of mineral milling and preparation processes considered to fall within Mine Act jurisdiction. Three of those processes--heat expansion, crushing, and sizing--"exactly describe the Stalite [operation]." J.A. at 31.

The ALJ determined that the interagency agreement was consistent with the legislative intent that the Act's definition of a "mine" be broadly interpreted, and that Carolina Stalite was engaged in mineral processing within the meaning of the Act. J.A. at 31-32. Because the legislative history of the Act "clearly contemplate[d] that jurisdictional doubts be resolved in favor of Mine Act jurisdiction," id. at 32, the ALJ concluded that "inclusion of [Stalite's] operations within the coverage of the Mine Act" was proper. Id. at 33. Finally, the ALJ rejected Stalite's contention that the evidence of violations must be suppressed under the fourth amendment. Id. at 35-48. ⁵

Pursuant to agency rules, Carolina Stalite petitioned the full Commission for discretionary review of the ALJ's decision. The petition was granted, and on March 29, 1982, a divided Commission reversed the ALJ and held that Stalite's facility did not constitute a mine within the meaning of the Act. ⁶ The Commission majority initially acknowledged that a "broad interpretation [was] to be applied to the Act's expansive definition of a mine." J.A. at 83 (citation omitted). See also id. at 83 n. 4 (use of both "milling" and "preparation" in the definition of a mine "signals that an expansive reading is to be given to mineral processes covered by the Mine Act"). Nonetheless, the Commission majority read that definition narrowly to include only facilities that engage in the "extraction, milling and preparation of minerals" and concluded that Carolina Stalite did not engage in mining "in its classic sense." Id. at 83 (emphasis added). The Commission found persuasive the fact that Stalite and the Young Stone Company were nonaffiliated companies and that Young did the actual extraction of the slate. Stalite's contact with the mineral occurred only after Young had extracted, crushed, sold and delivered it. Id. at 84. According to the Commission then, "Carolina's treatment of the mineral [was] a manufacturing process that results in a product, rather than a 'milling' process under the Mine Act." Id. ⁷

The Commission refused to give any weight to the interagency agreement between MSHA and OSHA used by the ALJ to support his interpretation of the statute. According to the Commission, the question of "MSHA's authority to regulate a workplace is determined by the scope of the Mine Act's coverage, not by its agreement with OSHA." J.A. at 84. ⁸

This appeal followed. Our jurisdiction rests on section 106(b) of the Act, 30 U.S.C. Sec. 816(b) (1982).

II.

We think the conclusion that Carolina Stalite's plant is subject to Mine Act jurisdiction compelled by construction of the statute and supported by decisions of other circuits.

A.

It is clear that every company whose business brings it into contact with minerals is not to be classified as a mine within the meaning of section 3(h). The jurisdictional line drawn by the statute rests upon the distinction, which is somewhat elusive, to say the least, between milling and preparation, on the one hand, and manufacturing, on the other. Classification as the former carries with it Mine Act coverage; classification as the latter results in Occupational Safety and Health Act regulation.

Were we governed by ordinary English usage, we might well agree with the Commission. Carolina Stalite does not extract the slate it processes and, as the Commission said, its facility cannot be considered a "mine in the classic sense." However, neither does Carolina Stalite manufacture concrete masonry blocks, the primary end use for stalite, and it is by no means perverse to characterize the Stalite facility as a mine. The physical proximity and operational integration of Carolina Stalite and Young Stone, whose plant is unquestionably subject to the Act, permit those facilities to be viewed, in industrial and economic reality, as distinct from questions of legal title to the premises, as a unified mineral processing operation. That consideration makes less artificial the statute's clear classification of Carolina Stalite's facility as a mine.

Section 3(h)(1)(C) of the Mine Act includes within the definition of a mine all facilities engaged in "the milling ... or the work of preparing coal or other minerals." 30 U.S.C. Sec. 802(h)(1)(C) (1982). Comparing the statute with prior laws that employed these terms separately, the Commission correctly noted that the "use of both terms...