BETTENDORF TERMINAL COMPANY, and LECLAIRE QUARRIES, INC.

OSHRC Docket No. 837

Occupational Safety and Health Review Commission

May 10, 1974

[*1]

Before MORAN, Chairman, VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Paul E. Dixon dated April 12, 1973, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act). That decision found that respondents had violated the Act as charged and affirmed the penalty amounts proposed by complainant.

Respondents defended this action on the grounds that they were not subject to coverage of the Act by virtue of section 4(b)(1) which provides that:

Nothing 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 and health.

The facts establish that LeClaire Quarries, a wholly owned subsidiary of Moline Consumers Corporation, is located on a river site and is engaged in the surface mining of rock and sand. The Moline Corporation dredges sand from the river and places it upon barges, at which point LeClaire takes title to the sand. The barges [*2] then transport the sand 10 miles down the river to the Bettendorf Terminal site n1 where it is unloaded and finally processed for sale.

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n1 The Bettendorf Terminal Company is the owner of the riverside property used for deposit and sale of the sand. It too is a wholly owned subsidiary of Moline Consumers Corporation.

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All personnel at the Bettendorf site are employees of respondent, LeClaire Quarries. The citation at issue here resulted from an inspection of the Bettendorf site only and thus concerns standards affecting solely the employees at the work site.

We believe the facts clearly demonstrate that respondents' business with respect to the sand dredging operations constitutes strictly the transport, processing, unloading, and sale of the sand. The actual dredging is performed by the Moline Consumers Corporation, and respondents do not take title to the sand until it is on the barges being shipped down the river.

We find that the activities engaged in by respondents do not appear to be those subject [*3] to the Health and Safety Standards for Sand, Gravel, and Grushed Stone Operations, n2 promulgated under the Metal and Non Metallic Mine Safety Act, n3 as respondents claim. The coverage of the law is limited to mines defined as follows:

The term "mine" means (1) an area of land from which minerals other than coal or lignite are extracted in nonliquid from or, if in liquid form, are extracted with workers underground, (2) private ways and roads appurtenant to such areas, and (3) land, excavations, underground passageways, and workings, structures, facilities, equipment, machines, tools, or other property, on the surface or underground, used in the work of extracting such minerals other than coal or lignite from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in the milling of such minerals, except that with respect to protection against radiation hazards such term shall not include property used in the milling of source material as defined in the Atomic Energy Act of 1954, as amended. n4

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n2 30 C.F.R. Part 56.

n3 30 U.S.C. 721 et seq.

n4 30 U.S.C. 721(b)

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Respondents' work site at Bettendorf Terminal qualifies neither as the area of extraction nor land used in the work of extracting. Nor does the fact that the sand undergoes a dewatering process qualify it as a milling facility, for that term is defined by the regulations as a facility or plant "used at, and in connection with, an excavation or mine." n5 The Bettendorf site is 10 miles away from the dredging area.

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n5 30 C.F.R. 56.2

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Respondents insist that the operations at the Bettendorf Terminal be viewed as part of one continuous process of sand excavation. We cannot agree.

Such a posture does not seem to have been contemplated by the Metal and Non Metallic Mine Safety Act with its application specifically limited to mines and properties adjacent thereto.

Moreover, to view the Bettendorf site as an integral part of the sand excavation operations for the purposes of this Act would completely frustrate the goals sought [*5] by Congress in its enactment of this legislation. Such an approach would totally exclude from coverage employees who are not involved in work subject to other safety and health regulations, but merely tangentially related to a business which is.

Indeed, we are not even convinced that the actual sand dredging operations in this case come within the purview of the Metal and Non Metallic Mine Safety Act and, hence, the safety regulations issued under 30 C.F.R. Part 56. Respondents repeatedly characterize their mining process as extraction of a liquid. Yet, the only nonliquid extraction processes subject to the Metal and Non Metallic Mine Safety Act are those with "workers underground."

Admittedly, the record restablishes that the Bureau of Mines has required reports and conducted inspections of LeClaire's facilities. Nevertheless, the facts show that the LeClaire river site also includes a rock quarry, which plainly comes within the scope of the Metal and Non Metallic Mine Safety Act.

Respondents offer no evidence to precisely establish those aspects of their multifaceted operations over which the Bureau of Mines has exercised jurisdiction. The Bettendorf Terminal site [*6] has never been inspected by the Bureau of Mines even though respondents include the Bettendorf employees in their reports to the Bureau. There is no evidence however that such inclusion is mandatory. Respondents also claim that their other river depots similar to Bettendorf have been inspected by the Bureau of Mines; yet once again sufficient evidence regarding the full nature of these other operations is absent.

We conclude therefore that respondents have failed to adequately prove that they are exempt from application of the Occupational Safety and Health Act by virtue of section 4(b)(1).

In order for a respondent to successfully defend itself against a charge that it violated the Act by a showing that section 4(b)(1) exempts it from the Act's coverage, it must prove that another Federal agency exercises statutory authority to prescribe or enforce standards or regulations affecting the occupational safety and health of respondent's employees. Section 4(b)(1) does not require that the other agency exercise its authority in the same manner as they Secretary of Labor or in an equally stringent manner. Secretary v. Mushroom Transportation Company, Inc., OSAHRC Docket No. [*7] 1588, November 7, 1973. However, in this case respondents did not establish that the Bureau of Mines either prescribed or enforced any regulations which affected the occupational safety or health of the employees affected by this action.

For the foregoing reasons, the Judge's disposition of this case is affirmed.

CONCURBY: CLEARY; VAN NAMEE

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with Chairman Moran's disposition of this case.

The parties have filed extensive briefs dealing with the sweep of section 4(b)(1). The application of the section has obvious importance and warrants comprehensive consideration.

The purposes of the Federal Metal and Non-Metallic Mine Safety Act n6 are consistent with the Chairman's reading of its text and his conclusion that respondent's workplace is subject to jurisdiction under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act").

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n6 30 U.S.C. 721 et seq. (1973) (hereinafter referred to as the "mine Safety Act").

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The Senate report on the legislation which became the Mine Safety Act states: "The purpose of this bill is to reduce the high accident rate and improve safety and health conditions in mining and milling operations carried on in the metal and non-metallic mineral industries." n7 The primary target of the Mine Safety Act is the mines themselves. Section 3 extends its applicability to "each mine [affecting commerce]." Section 4 requires the Secretary of the Interior to inspect all underground mines annually, and provides for discretionary inspection of other mines. Enactment of the legislation followed a survey of the Federal Mine Safety Study Board on deaths and injuries in mining and milling operations, including stone quarries and sand and gravel pits. During Senate debate on the legislation, Senators Cotton and Morse stated, concerning sand and gravel, that only the pits from which sand and gravel are extracted would be covered. n8 Clearly, the primary purpose of the Mine Safety Act is to safeguard miners, particularly those working underground.

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n7 1966 U.S.C Cong. & Ad. News 2846 (1966); S. Rep. No. 89-1926, 89th Cong., 2d Sess. (1966).

n8 112 Cong. Rec. 14158, 14169 (1966).

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Milling is included in the definition of "mines" under the Mine Safety Act. n9 Respondent's facility, however, is not engaged in milling. Then Secretary of the Interior Udall explained what are generally regarded as "milling operations" in a letter to Representative Quie at the time the House version of the Mine Safety Act was under consideration: "The term '. . . used in the milling of such minerals,' refers in general to the processes of grinding, washing, concentrating, and sizing of the minerals. In brief, milling ends where refining or manufacturing begins." n10

From the foregoing, we must conclude that the Mine Safety Act grants and extends the Secretary of the Interior's authority only "beyond mining in the narrow and ordinary sense of the term, to the next sequential stage to that of the related milling operation." (See Senate Report No. 1296 on HR 8989, at p. 6.)

Pullman Brick Co., No. 1593 (May 22, 1973) (Administrative Law Judge).

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n9 The Mine Safety Act itself does not define milling, but regulations issued under the Act for sand, gravel, and crushed stone operations (30 CFR Part 56) state: "Mill' includes any one mill, sampling works, concentrator, and any crushing, grinding, or screening plant used at, and in connection with, an excavation or mine." 30 CFR 56.2.

n10 111 Cong. Rec. 21, 983 (daily ed. Sept. 2, 1965).

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Respondent's facility, located 10 miles from the quarry, is used only for unloading, drying, storing, and delivering sand to customers. It is not used for milling. Therefore the facility is not excluded from jurisdiction under section 4(b)(1) of the Act.

Even if the Mine Safety Act were applicable to the facility, I would agree with the Secretary of Labor that there would still be jurisdiction under the Occupational Safety and Health Act concerning the alleged violations that were the subject of the Secretary's citation. Under section 4(b)(1) of the Act, where another Federal agency has regulations affecting the occupational safety and health of employees, only the specific working conditions covered by those regulations are excluded from jurisdiction under the Act. Working conditions of the same employees that are not covered by other Federal regulations are subject to the Act. The Conference Committee Report on S.2193, which was subsequently enacted as the Occupational Safety and Health Act of 1970, explains that Congress specifically decided against excluding regulated employees, and [*11] excluded only specific working conditions:

The Senate bill said the Act should not apply to working conditions with respect to which other Federal agencies exercise statutory authority affecting occupational safety and health, while the House amendment excluded employees whose working conditions were so regulated. The House language had no additional exclusion relating to employees whose safety and health were regulated by state agencies acting under section 274 of the Atomic Energy Act of 1954. The House receded on the first point; the Senate receded on the second.

Staff of Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 1185 (Comm. Print 1971) (hereinafter referred to as Legislative History. )

Also, under section 4(b)(1) of the Act, working conditions are excluded from jurisdiction only if other Federal agencies "exercise" their authority to prescribe or enforce job safety and health standards or regulations. Thus, if an agency fails to promulgate or enforce regulations covering specific working conditions, the Act will apply to those conditions. n11 Representative Steiger's [*12] remarks during House consideration of the legislation note this contingency:

While this section does not foreclose the authority of the Secretary of Labor in instances where another agency or department has statutory authority in the area of occupational safety and health, but has taken no action, it is anticipated that these instances will be extremely rare. It is intended that the Secretary of Labor will not exercise his authority where another agency with appropriate jurisdiction has taken steps to exercise its authority, even though the action might be at the formative stage of regulations or enforcement. Legislative History at 997.

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n11 See comments of Representative Daniels, Legislative History at 1019-20.

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In this case, there are no regulations under the Mine Safety Act covering the specific working conditions, i.e., longshoring operations, that are the subject of the Secretary's citation, and the Bureau of Mines, in fact, has never inspected the facility.

Respondent was also cited for alleged [*13] noncompliance with certain recordkeeping requirements under the Act, (29 CFR 1903.2(a), 1904.2(b)(2), 1904.4, and 1904.5(a)). An employer may be subject to these requirements even if there were no jurisdiction under section 4(b)(1) over its employees' working conditions. Recordkeeping requirements are not requirements "affecting occupational safety and health." As distinguished from standards, they are not substantive rules prescribing courses of conduct affecting safety and health on the job. Thus, these requirements are not subject to the section 4(b)(1) exclusion.

This interpretation is consistent with the text of section 24(a) of the Act, which calls for the collection and analysis of occupational safety and health statistics. The statistical program may cover all "employments" except those excluded by section 4. The only "employment" excluded by section 4 is employment outside the States and territories listed in section 4(a). This is a geographical exclusion, not one based on subject matter, in contrast to the working conditions exclusion in section 4(b)(1). Therefore, it would appear that under the Act, recordkeeping requirements as well as statistical [*14] programs may cover working conditions concerning which another Federal agency has regulations affecting employee safety and health.

Another point raised by this case requires comment. The lead opinion, without discussion, affirms the Judge's assessment of the Secretary's proposed penalties totalling $370. This action was taken by the Judge pursuant to a mutual stipulation that "The appropriateness of the penalties proposed by the Secretary is not and never has been an issue between the parties in this proceeding." At the hearing, the Secretary made a proffer of evidence as to the manner in which the proposed penalties were calculated. Because counsel for respondent reiterated that the penalties were not being contested and also stated that they were not unreasonable, the Judge apparently concluded that it was not necessary to take the Secretary's evidence and so affirmed the proposed penalties.

In effect, the Judge accepted the parties' stipulation as to the reasonableness of the proposed penalties.

Whenever a citation is contested, the Commission has wide discretion in the determination of the appropriateness of penalties. In exercising this discretion, due consideration must [*15] be given to the factors set out in section 17(j) of the Act, i.e., the gravity of the violation, the size of respondent's business, its history of previous violations, and its good faith. Facts relating to these criteria may, of course, be stipulated, but a stipulation as to the appropriateness of the penalty cannot be considered controlling, because it is a legal conclusion. It is the statutory responsibility of the Commission to assess penalties. Its role in protecting the public interest involved is a positive one. Brennan v. O.S.H.R.C. & John J. Gordon Co., No. 73-1729 (2d Cir., February 25, 1974).

Here, the Secretary's evidence relevant to the section 17(j) criteria was not heard. The issue of appropriateness of the penalties, however, without any relevant facts of record may still be resolved by exercise of the Commission's wide discretion in the peculiar circumstances of this case.

It is inferred that the parties' stipulation was based on mutually agreed-upon facts. It is also inferred that the facts included those necessary upon which to apply the section 17(j) criteria. Official notice is taken of the existence of the Secretary of Labor's [*16] Compliance Operations Manual, which prescribes specific methods that area directors are to follow in calculating proposed penalties for different types of alleged violations, n12 and apply the presumption of regularity; i.e., that public officers have properly discharged their duties in the absence of clear evidence to the contrary. n13 In this case there is no evidence to rebut the presumption. It is inferred, therefore, that the Area Director complied with the directions in the Manual to take into account the relevant facts concerning the gravity of the violation, the employer's size, good faith, and history of violations in proposing the penalties. The conclusion follows that the agreed-upon facts which inferrentially formed the basis of the stipulation may be accepted by the Commission.

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n12 U.S. Department of Labor, Occupational Safety and Health Administration, Compliance Operations Manual, Ch. XI (1972).

n13 F.C.C. v. Schreiber, 381 U.S. 279 (1965); United States v. Chemical Foundation, 272 U.S. 1 (1926).

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It should be emphasized that such an inference is permissive and not obligatory. The inference is made here only because of the peculiar circumstances of this case, including the Judge's failure to hear the Secretary's proffered evidence and the staleness of the proceeding. The hearing in the case was held more than a year ago and the proceedings began about two years ago. To remand the case now on the penalty issue would inhibit unduly the achievement of the basic purpose of the Act which is to protect employees through abatement of occupational hazards.

VAN NAMEE, COMMISSIONER, concurring: Unfortunately, because of the opinions filed by my colleagues, I find it necessary to add yet another opinion in this relatively simple matter. I say simple because the only matter at issue when this case was tried n14 was whether Respondent's facility was a "mine" within the meaning of the Federal Metal and Non-Metallic Mine Safety Act (30 U.S.C. 721 et seq. ). Since Respondent's facility is clearly not a "mine" as the term is defined in the Mine Safety Act the Secretary of the Interior is without authority to prescribe or enforce safety regulations [*18] applicable to the working conditions of Respondent's employees. Accordingly, section 4(b)(1) of our Act does not apply. That was all that need be said in this case.

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n14 Respondent admitted Complainants' allegations of fact includin those which related to the nature of the violations and to Respondent's size. I would assess the proposed penalties in view of the admitted facts rather than for the reasons of notice, presumption, and inference as used by Commissioner Cleary. I do concur in his views regarding our discretion and authority to make penalty assessments.

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Chairman Moran's opinion goes further; he interprets section 4(b)(1) to be exemptory in nature. Commissioner Cleary's opinion may be fairly read as concurring in the interpretation. If that is their decision in this case I disassociate myself from it. The question of whether section 4(b)(1) is jurisdictional or exemptory is not before us in this case, but it is currently before us in a number of other cases. In those cases the parties [*19] have expended unknown sums to brief the issue, and in addition some of them have been put to the expense of preparing for and presenting oral argument. I am not unmindful of the importance of the issue and I am of the view that its prompt resolution is necessary. However, I believe the back door method of resolution employed by my colleagues (if they have resolved it) is an affront to those who have litigated the issue and are deserving of a decision which unlike my colleagues' decision is supported by reasons.

[The Judge's decision referred to herein follows]

DIXON, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act), contesting a Citation issued by the Complainant against the Respondents under the authority vested in Complainant by Section 9(a) of the Act.

The Citation and Proposed Penalty of $370 was issued April 14, 1972, as a result of an inspection on March 31, 1972, by Complainant of a workplace under Respondent's ownership, operation or control at a job-site at 3623 Elm Street, Bettendorf, Iowa, where Respondents were primarily engaged in dewatering, storage [*20] and sale of sand in conjunction with sand dredging operations conducted on the Mississippi River and the storage thereof at the Bettendorf Terminal site.

The Citation issued April 14, 1972, and incorporated in the original Complaint of the Complainant filed May 5, 1972, alleges non-serious violations of 29 CFR 1903.2(a), no notice informing employees of the protection of the Act; Section 29 CFR 1904.2(b)(2), a failure to keep a log of occupational injuries and illnesses; of 29 CFR 1904.4 by not having available a supplementary record for each occupational injury and illness; of 29 CFR 1904.5(a), by not having annual summary of occupational injuries and illnesses; of 29 CFR 1918.96(a), by not having available a first aid kit for each vessel at its place of business nor having an employee with a current valid first aid certificate; of 29 CFR 1918.96(d), by not having available a stokes basket stretcher; 29 CFR 1918.96(e), by not having available U.S. Coastguard approved 30-inch life ring with not less than 90 feet of line; 29 CFR 1918.13(a), using 38-ton crawler crane to transfer cargo from barge to shore which had not been certified.

Pursuant to the enforcement procedure [*21] set forth in Section 10(a) of the Act, the Respondent Bettendorf was notified by letter dated April 14, from Mr. A. F. Castranova, Area Director of the seventh region area, Occupational Safety and Health Administration, U.S. Department of Labor, that there was proposed to assess a penalty for the aforementioned violations alleged in the amount of $370.

By Respondent Bettendorf's Answer of June 8, 1972, and its subsequent motion made at time of hearing and proposed Findings of Fact, Conclusions of Law and Order, Respondent admits its operation of the worksite, denying said operation is a longshoring operation but stating that said operation was part of a mining and dredging operation and therefore subject exclusively to jurisdiction of Title 30, U.S.C.A. Section 725, known as the Bureau of Mines, Metal and Non-Metallic Mines Act.

By Complainant's Answer and proposed Findings of Fact (Paragraph 2) and at the hearing (T. 34, 35) Respondents make no contest as to the violation and proposed penalties and has tendered the penalties and has come into compliance with respect to the alleged violations.

Subsequent to the hearing, and based upon the testimony of the President of [*22] Bettendorf Terminal, who also held the equivalent office with LeClaire Quarries, upon motion made by Complainant, additional Respondent LeClaire Quarries was added as a party Respondent.

ISSUES

1. Were the operations of the Respondents at the Bettendorf Terminal worksite, which was the subject of the Secretary's Amended Complaint, within the exclusive jurisdiction of the Bureau of Mines under the Federal Metallic and Non-Metallic Mines Safety Act, and if so;

2. Is the Secretary's jurisdiction over the operations at the Bettendorf Terminal worksite which was cited exempted by reason of Section 4(b)(1) of the Occupational Safety and Health Act.

FINDINGS OF FACT

CORPORATE STATUS

1. Moline Consumers Corporation, an Iowa corporation, is engaged in the business of building materials, aggregates, crushed stone, sand, gravel, crushed rock and limestone. This business is connected with anything that is attendant to . . . concrete building (T.7).

2. Moline Consumers Corporation is the parent corporation of LeClaire Quarries, an Iowa corporation which conducts mining operations where stone is crushed, sized and stockpiled (T.6).

3. Moline Consumers Corporation also owns Bettendorf [*23] Terminal Company, an Iowa corporation with its principal place of business consisting of a river site and dock in Bettendorf, Iowa (T. 6, 7).

4. The Bettendorf Terminal site is operated on an indefinate lease with LeClaire Quarries to provide a site for unloading sand and processing sand for sale (T.7-9)

5. LeClaire Quarries is located approximately 10 miles upstream from the Bettendorf Terminal and is engaged in surface mining of rock and sand (T. 20, 21).

6. Bettendorf Terminal is the corporate title holder to the river site and dock inspected and cited by Occupational Safety and Health Administration compliance officers on March 31, 1972 (T.22, 23).

7. Mr. Sam Comess is President of both Bettendorf Terminal Corporation and LeClaire Quarries (T. 32).

8. Mr. Ray Welvaert is Manager of LeClaire Quarries and has duties involving sales, personnel and operating equipment and scheduling of employees at the Bettendorf Terminal site; he is at the site almost daily acting as foreman (T. 24, 25).

CORPORATE OPERATIONS

9. Moline Consumers Corporation operates a dredge which dredges material (sand) from under banks adjacent to the Mississippi River which is loaded aboard [*24] its barge and partially dewatered (T.11).

10. Title to the sand is transferred to LeClaire Quarries while the sand is in route to the Bettendorf site (T. 12).

11. The sand material is offloaded at the Bettendorf Terminal site for further dewatering to make the sand saleable (T. 11) and about 130,000 tons are stored annually (T. 15).

12. At the Bettendorf Terminal site the equipment which is utilized is owned by LeClaire Quarries and consists of an endloader, crane, scale and building (T.8).

13. Only employees of LeClaire Quarries work at the Bettendorf Terminal site with the regular employment force being an office scale girl, unloader operator and crane operator (T.9).

14. LeClaire Quarries maintains the social security and payroll records on these employees and collects withholding taxes (T. 10).

15. Bettendorf Terminal has no employees (T. 10). Employees working at the Bettendorf site are engaged solely in unloading sand from the barge, stockpiling, sales and forwarding invoices to LeClaire Corporation (T. 9-12, 29).

16. LeClaire Quarries has for some five years been making out reports to the Bureau of Mines involving accidents and number of days lost for [*25] employees along with annual tonnage reports wherein the Bettendorf Terminal inventory is included (T. 25, 26).

17. These reports have been made for over five years, and while pertaining to manhours and damage have not referred to equipment on the Bettendorf site (T. 31).

18. The LeClaire Quarry properties have been inspected by the Bureau of Mines (T. 26).

19. The Bettendorf Terminal site has never been inspected by the Bureau of Mines (T. 29-31).

20. At the time of the compliance officers' inspection, March 31, 1972, the relationship between Bettendorf Terminal Company and LeClaire Quarries Corporation was not explained to the compliance officers (T. 18).

CONCLUSIONS OF LAW

The gravamen of Respondent's position in this case is that because of a leasing arrangement made between the Bettendorf Terminal site where Respondent's materials are dewatered, stored and sold, and by virtue of the fact that the employees employed at the Bettendorf site and the equipment utilized are personnel and equipment paid for and supplied by LeClaire Quarries along with reports furnished by LeClaire Quarries to the Bureau of Mines under the requirements of 30, U.S.C.A. Section 725 (Federal [*26] Mine and Non-Metallic Mine Safety Act) and the standards promulgated under 30 CFR Part 56, pertaining to sand, gravel and crushed stone operations that the Bettendorf site is exempt from coverage under the Occupational Safety and Health Act.

It is felt that Respondent's position is untenable.

The general duty clause of the Occupational Safety and Health Act under Section 5(a) requires each employer to: 1) furnish to each of his employees an employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees; and, 2) shall comply with the Occupational Safety and Health standards promulgated under this Act.

The applicability of this Act is set forth under Section 4 of the Occupational Safety and Health Act. It is stated:

(a) This Act shall apply with respect to employment performed in a workplace in a State . . .

(b)(1) 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 [*27] or enforce standards or regulations affecting occupational safety or health, and

(3) The Secretary shall, within three years after the effective date of this Act, report to the Congress his recommendations for legislation to avoid unnecessary duplication and to achieve coordination between this Act and other Federal laws.

Respondent's principal position that the operations at the Bettendorf Terminal worksite are part of a mining operation does not stand up under the scrutiny of either the facts or statutory definition.

Pertinent provisions of Title 30 U.S.C.A. Section 721, explicitly define a mine in Subparagraph (b) as follows:

The term "mine" means (1) an area of land from which minerals other than coal or lignite are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (2) private ways and roads appurtenant to such area, and (3) land, excavations, underground passageways, and workings, structures, facilities, equipment, machines, tools, or other property, on the surface or underground, used in the work of extracting such materials other than coal or lignite from their natural deposits in nonliquid form, or if in liquid [*28] form, with workers underground, or used in the milling of such minerals . . . (Emphasis supplied)

Obviously, by legal definition, and based upon the facts of the case wherein Respondent is accumulating sand from a river operation, in a liquid form there are no workers underground. Nor does Respondent's operations in storing said material take place on the surface or underground on property used in the work of extracting such materials such as defined by way of excavation of non-liquid minerals.

Respondent's operations at the Bettendorf Terminal Company can thus be described by the factual testimony adduced as to these operations wherein they were referred to as a river site and dock for unloading sand, further dewatering and holding for sale (T. 7, 8, 9). The location has no approximation to LeClaire Quarries' actual quarry operations which are some ten miles upstream nor is the material stored at said dock obtained from the LeClaire Quarries but to the contrary is obtained from the Mississippi River by a dredging operation which is done in the name of the Moline Consumers Corporation with title transferring to LeClaire Quarry Corporation in route to the Bettendorf Terminal [*29] site.

Further, a careful review of 30 CFR, part 55, providing health and safety standards for metal and non-metallic open pit mines, part 56 providing health and safety standards for sand, gravel and crushed stone operations, and part 57, health and safety standards for metal and non-metallic underground mines makes no reference to an operation such as described in the testimony in chief of dredging sand from a river but to the contrary makes reference to mining operations in the technical sense of the word, namely underground or open pit type excavations.

To hold that the Bettendorf Terminal site is exempt from coverage of the Occupational Safety and Health Act by virtue of the fact that it is claimed to be an adjunct to the LeClaire Quarry operation would create a special class of exemption under the Act for any corporation, which for whatever purpose, decided to create a subsidiary corporation for activities claimed exempt from the Act and by labeling the subsidiary corporation as an adjunct to their exempt activities (if such activities be exempt) evade their responsibilities under the Occupational Safety and Health Act.

Nor could an employer, if engaged in statutory [*30] exempt activities, extend the exemption, by assigning employees to work in non-exempt activities and label the worksite with either a corporate name or enter into a corporate arrangement to cloud the activities by claiming statutory exemption.

Reference to the exemptions provided by Section 4(b)(1) have been raised by the briefs of both Complainant and Respondent but are not determinative of the issues in this case because of the factual considerations.

The Congressional history demonstrates that concurrent jurisdiction or coexistent jurisdiction would, for a time, exist with other jurisdictions not specifically exempted. See conference report on S. 2193 Occupational Safety and Health Act of 1970, 92nd Congress. First Session. TG. 12-23 quoting Congressman Scherle in referring to Section 4(b)(1).

This bill recognizes that many employers are already covered by existing Federal safety laws, but does not exclude these employers from additional coverage of the new law. In other words, even though they are now covered by the Construction Safety Act, Walsh-Healy Act or any other Federal safety law, the new act would overlap the existing safety laws and require compliance [*31] with each law. This would lead to general confusion, as to what is required by an employer to be in compliance with the Federal laws. The bill specifically recognizes this dilemma, but only requires that the secretary report to Congress on the problem of overlapping statutes within 3 years.

Further comment is made as to whether or not the determinative factor should be based upon the operative word of Section 4(b)(1) as to other Federal agencies "exercising statutory authority". Several Review Commission cases had found against Respondents on the basis that in an industry operation which is regulated by another Federal agency which fails to exercise its jurisdiction, that such operations are covered by the Occupational Safety and Health Act. So. Pac. Transportation Co. No. 1348, Penn. Central Transportation Co. No. 738.

It is not felt that this position is applicable to the case in point. Respondent LeClare Quarries unilaterally caused reports to be issued to the Bureau of Mines since approximately 1967 and voluntarily included the Bettendorf Terminal site operations in these reports though the river site operation had never been inspected by the Bureau of Mines.

If this [*32] would constitute a defense to coverage under the Act, a situation would be created where a respondent engaged in exempt operations could create some form of ancillary operation not exempt under the Act and by including that particular operation in reports to a particular agency exempt that operation from the protection and coverage afforded employees under the Occupational Safety and Health Act.

Such reports would be self-serving in that the material involved, the areas involved and the personnel included would be wholly selected by the parent corporation and by a process of perceptive selection eliminate a section of employees from the protection of the Act. It could not be seriously contended that such exemptions could be thus established. Nor can it be said that the Bureau of Mines has ever exercised any authority or action whatsoever over the Bettendorf Terminal operation.

Complainant takes what is thought to be the correct position, namely, that the opeations at the Bettendorf Terminal site are that of long-shoring, storing, holding and sales and cannot in any way be denominated as a mining operation to come under the purview of 30 U.S.C.A. Section 725, but to the [*33] contrary, that the Occupational Safety and Health Administration has jurisdiction over the operations.

PENALTY

With respect to appropriateness of the penalty by Respondents' Answer, proposed Findings of Fact and Stiplation filed by and between the Complainant and Respondents, there was no dispute as to the violations charged in the Citation and contained in the Amended Complaint or the penalties proposed therefore.

The appropriateness of the penalties proposed by the Secretary has never been an issue between the parties in this proceeding.

ORDER

Now therefore, based upon the foregoing, it is found that:

1. At all times material hereto, Respondents were and are employers within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ).

2. Respondent's employees working at the Bettendorf Terminal site were engaged in processing sand for storage, storing sand and engaged in the sale of sand.

3. The Occupational Safety and Health Act of 1970 and the Occupational Safety and Health standards and regulations promulgated thereunder are applicable to the working conditions of Respondent's employees employed at the Bettendorf Terminal [*34] site.

4. The Occupational Safety and Health Review Commission has jurisdiction of the parties on the subject matter herein pursuant to Section 10(c) of the Act.

5. Respondents have violated the Occupational Safety and Health standards and regulations as alleged in the Secretary's Amended Complaint.

6. The penalties proposed for the aforesaid violations are affirmed and have been tendered by Respondents.

7. The Citation for other than serious violations as amended by the Amended Complaint and Proposed Penalties and the abatement periods fixed therein are affirmed in all respects.