A plant that manufactures a specialty cement product falls under the purview of the Mine Safety and Health Administration, even though the federal safety agency once disavowed a jurisdictional claim.

The recent ruling by Administrative Law Judge L. Zane Gill went against a company, which contended its Chesapeake calcium aluminate cement plant was not covered by the Mine Act. To boost its argument, the company pointed out that in 2008, an MSHA district manager had relinquished jurisdiction of the operation to the Occupational Safety and Health Administration. MSHA began reasserting authority over the plant about four years later.

Under its new interpretation, MSHA concluded the plant was a “mine” engaged in “milling” because it uses alumina and lime products and makes cement using milling processes such as crushing, grinding, sizing, sintering and kiln treatment.

The company claimed MSHA’s new interpretation of what constituted milling was entitled to less deference because it conflicted with the agency’s previous position. The company also argued its facility is not a “mine” as defined by the Mine Act, because no material is extracted from the earth at the plant and it does not handle raw, mined materials. Rather, the company contended that materials used at the plant have “‘already undergone significant chemical and physical changes through processes performed at other facilities.’” In addition, the company argued the plant “‘is performing manufacturing of consumer-ready products’” and is not treating extracted minerals.

ALJ Gill called the company’s less-deference argument “unavailing,” saying that even if MSHA were accorded less deference in its definition of “milling,” he would still find the agency’s position reasonable. This was due in part to a 1979 MSHA-OSHA Interagency Agreement (IAA) on jurisdiction, as amended, in which milling was determined to be covered by MSHA and included the five processes MSHA stated occur at the plant. In his testimony, the manager of the Chesapeake Plant indicated that four of the five processes do take place there, Gill noted.

Gill also pointed out that the “mining” of alumina and lime is listed in the IAA as falling under MSHA’s jurisdiction and that the agency’s coverage under the IAA explicitly includes alumina and cement plants. The judge also cited an appeals court decision (Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984)) in which the court highlighted language from a Federal Mine Safety and Health Review Commission decision in which the Commission held milling can be used interchangeably with the term mineral preparation “‘to describe the entire process of treating mined minerals for market.’”

As further support, Gill noted the Donovan court had stated language in the Mine Act meant that courts and the Commission were to give MSHA deference in determining what constitutes mineral milling. Further, he said, legislative language supporting the Act states that what constitutes a mine is to be given the “‘broadest possibl[e] interpretation’” [Gill’s emphasis] in resolving jurisdictional disputes.