PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1450
POWER FUELS, LLC,
Petitioner,
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; SECRETARY OF
LABOR, MINE SAFETY AND HEALTH ADMINISTRATION,
Respondents.
On Petition for Review of an Order of the Federal Mine Safety
and Health Review Commission. (VA 2013-403; VA 2013-312-R; VA
2013-313-R; VA 2013-353-R)
Argued: December 11, 2014 Decided: January 27, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Petition for review denied by published opinion. Judge
Wilkinson wrote the opinion, in which Judge Gregory and Judge
Duncan joined.
ARGUED: Wade Wallihan Massie, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner. Tamara Yael Hoflejzer Burnett, UNITED
STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondents. ON BRIEF: Seth M. Land, PENN, STUART & ESKRIDGE,
Abingdon, Virginia, for Petitioner. M. Patricia Smith,
Solicitor of Labor, Heidi W. Strassler, Associate Solicitor, W.
Christian Schumann, Appellate Litigation, Sara L. Johnson,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.
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WILKINSON, Circuit Judge:
Power Fuels, LLC, petitions for review of a final order of
the Federal Mine Safety and Health Review Commission. Power
Fuels operates a facility that receives, blends, stores, and
delivers coal to meet the specifications of a power plant
located across the road. The Department of Labor’s Mine Safety
and Health Administration (“MSHA”) asserted jurisdiction over
the facility under the Federal Mine Safety and Health Act of
1977 (“Mine Act”).
The Mine Act covers operators of a “coal or other mine,”
including facilities engaged in the “work of preparing coal.” 30
U.S.C. § 802(h)(1)(C), (i). Power Fuels challenged the Secretary
of Labor’s assignment of jurisdiction to MSHA, rather than to
the nonspecialized Occupational Safety and Health Administration
(“OSHA”). We hold that the Secretary permissibly concluded that
a facility that blends coal for a nearby power plant was subject
to the Mine Act. Because the Mine Act covers this kind of
activity, MSHA’s assertion of jurisdiction was proper. We
therefore deny the petition for review.
I.
The parties do not dispute the facts underlying this case.
In any event, we will sustain the Commission’s factual findings
3
so long as they are “supported by substantial evidence on the
record considered as a whole.” 30 U.S.C. § 816(a)(1).
A.
Power Fuels owns and operates a coal-blending terminal in
Wise County, Virginia. At this site, Power Fuels receives,
tests, weighs, samples, mixes, blends, stores, loads, and
transports coal for its customer, Virginia Electric and Power
Company, doing business as Dominion Virginia Power. Dominion
runs a power plant, the Virginia City Hybrid Energy Center,
which produces electricity from coal and biomass. Power Fuels’
blending terminal and Dominion’s plant are situated on adjoining
properties.
Power Fuels works as a contractor for Dominion under a
formal agreement. The products provided by Power Fuels include
coal and coal refuse, or “gob.” Power Fuels mixes an estimated
average of eight thousand tons of coal per day for Dominion at
the blending terminal, and the facility stores an eight-day
supply of fuel for Dominion’s use. Dominion owns all the coal
that Power Fuels prepares. Approximately eighty percent of the
fuel consumed at Dominion’s plant passes through Power Fuels’
blending terminal, while the remaining twenty percent comes to
the plant from other locations.
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Power Fuels blends the coal according to the precise
specifications provided daily by Dominion to ensure a proper
reaction at the power plant. After the coal arrives, Power Fuels
samples it and moves the material into separate piles, and it
then uses equipment at the facility to blend the coal as
directed by Dominion. Dominion’s orders specify, for example,
the number of buckets of each material to be used in the desired
blend, as well as moisture, ash, sulfur, and BTU content. Under
the companies’ agreement, Power Fuels may recommend
modifications of Dominion’s order, but it must blend the coal as
instructed unless Dominion decides to change the specifications
for that day. Power Fuels then tests the product. Based on the
test results, Dominion may alter the order, in which case Power
Fuels blends and tests the pile again until it meets Dominion’s
needs. The facility does not extract, crush, size, screen, or
wash coal during this process. Finally, trucks transport the
finished products across the road, from the blending terminal to
Dominion’s power plant.
B.
Dominion’s plant and Power Fuels’ terminal both began
operations in 2011. The following year, an inspector from MSHA
noticed trucks delivering coal to the Power Fuels site. The
agency was unaware at the time of any coal-preparation
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facilities operating there. An investigator from MSHA then
visited the site and observed that Power Fuels was blending,
storing, and loading coal for the power plant across the road.
Following a review by MSHA and the Department of Labor’s Office
of the Solicitor, the Secretary determined that the blending
terminal was subject to MSHA’s jurisdiction.
Once MSHA asserted jurisdiction, the agency began
performing inspections of the facility. In April 2013, an
inspector issued three citations to Power Fuels for violations
of MSHA standards involving the trucks’ braking systems and
warning devices. See 30 C.F.R. § 77.410(c), 77.1605(b). The
agency assessed a civil penalty of one hundred dollars for each
citation. MSHA later imposed additional citations on Power
Fuels, but the contests of those citations have been stayed
pending the outcome of this appeal.
Power Fuels contested the three initial citations on the
ground that it was not the operator of a mine for the purposes
of the Mine Act, and that MSHA consequently lacked jurisdiction.
In November 2013, an administrative law judge for the Federal
Mine Safety and Health Review Commission held an evidentiary
hearing. In a March 2014 decision, the ALJ concluded that Power
Fuels was engaged in the “work of preparing the coal” under the
Mine Act. 30 U.S.C. § 802(h)(1)(C), (i). The ALJ took particular
note of the fact that “the testing, blending, and re-blending as
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necessary, are directly accomplished in order to [e]nsure and
maintain the consistent quality of the coal pursuant to
Dominion’s quality specifications.” J.A. 333. The ALJ
accordingly ruled that MSHA’s jurisdictional assertion was
proper, and he affirmed the citations and accompanying
penalties.
Power Fuels filed a petition for discretionary review with
the Commission. The Commission declined to grant review, and
consequently the ALJ’s decision became the final order of the
Commission. See 30 U.S.C. § 823(d)(1). Power Fuels now petitions
for review in this court. See id. § 816(a).
II.
A.
The Mine Act specifically protects the safety and health of
individuals who work in a “coal or other mine.” 30 U.S.C.
§ 802(h)(1)(C); see id. § 801. But even before MSHA asserted
jurisdiction under the Mine Act, Power Fuels’ blending terminal
was not beyond the reach of federal safety and health
regulations. The Occupational Safety and Health Act of 1970
(“OSH Act”) provides a statutory baseline for “assur[ing] so far
as possible every working man and woman in the Nation safe and
healthful working conditions.” 29 U.S.C. § 651(b). This far-
reaching enactment mandates workplaces “free from recognized
7
hazards.” Id. § 654(a)(1). Where Congress has enacted an
industry-specific statute conferring authority over working
conditions on another agency, however, the OSH Act does not
apply. 29 U.S.C. § 653(b)(1). The Mine Act, which governs
occupational safety and health at “[e]ach coal or other mine,”
is such a statute. 30 U.S.C. § 803.
In practice, then, the regulatory dynamic involves
displacement: MSHA may “exercise[] its statutory authority under
the Mine Act in such a way as to preempt OSHA’s regulatory
jurisdiction under the OSH Act.” United Energy Servs., Inc. v.
Fed. Mine Safety & Health Admin., 35 F.3d 971, 977 (4th Cir.
1994). The OSH Act is “comprehensive,” Martin v. Occupational
Safety & Health Review Comm’n, 499 U.S. 144, 147 (1991), but it
also affords space for specialized regulatory schemes. The
Secretary of Labor administers both the Mine Act and the OSH Act
and determines initially whether a workplace falls under the
jurisdiction of MSHA, rather than OSHA. See, e.g., Sec’y of
Labor v. Nat’l Cement Co. of Cal., 494 F.3d 1066, 1073 (D.C.
Cir. 2007).
The regulatory systems administered by MSHA and OSHA share
many similarities, but the differences -- in scope and
enforcement -- may hold significant implications for an employer
and its employees. For example, although OSHA has established
extensive workplace standards for toxic and hazardous
8
substances, see 29 C.F.R. pt. 1910, subpts. H, Z, MSHA’s
regulations are specifically tailored to the dangers that arise
from handling coal, such as exposure to coal dust and other
airborne contaminants, see 30 C.F.R. pt. 71. The Mine Act also
provides the Secretary with an array of enforcement mechanisms,
such as inspections, investigations, recordkeeping, citations,
and orders, that are particularized to the industry’s hazards.
See 30 U.S.C. §§ 813, 814. The Secretary may need to draw on
“historical familiarity and policymaking expertise” to determine
which agency’s framework is appropriate for a given workplace.
Martin, 499 U.S. at 153.
B.
With the Mine Act, Congress fashioned a law that is not
only tailored to a specific industry, but also comprehensive in
its coverage. The force of the statute is evident even from
Congress’s preliminary declarations. 30 U.S.C. § 801(c)
(identifying “an urgent need to provide more effective means and
measures for improving the working conditions and practices in
the Nation’s coal or other mines in order to prevent death and
serious physical harm, and in order to prevent occupational
diseases originating in such mines”). Congress also expressed
particular solicitude for the individuals who are continually
exposed to the hazards of mining. Id. § 801(a) (announcing that
9
“the first priority and concern of all in the coal or other
mining industry must be the health and safety of its most
precious resource -- the miner”). And Congress indicated that,
even as new mandatory standards were developed, id. § 801(g)(1)-
(2), operators would need to work with their employees to keep
these workplaces safe, id. § 801(e) (stating that “the operators
of such mines with the assistance of the miners have the primary
responsibility to prevent the existence of such conditions and
practices in such mines”).
The Mine Act is also a broadly written statute. “Each coal
or other mine” is subject to the coverage of the Mine Act, id.
§ 803, and that term carries an expansive statutory meaning, see
id. § 802(h)(1). As relevant to this case, the Mine Act provides
that the term “coal or other mine” encompasses:
lands, excavations, underground passageways, shafts,
slopes, tunnels and workings, structures, facilities,
equipment, machines, tools, or other property
including impoundments, retention dams, and tailings
ponds, on the surface or underground, used in, or to
be used in, or resulting from, the work of extracting
such minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers underground,
or used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation
facilities.
Id. § 802(h)(1)(C) (emphasis added). The definition of the “work
of preparing the coal,” in turn, includes a lengthy list of
activities, as well as a flexible final phrase: “the breaking,
10
crushing, sizing, cleaning, washing, drying, mixing, storing,
and loading of bituminous coal, lignite, or anthracite, and such
other work of preparing such coal as is usually done by the
operator of the coal mine.” Id. § 802(i).
As the statutory text makes clear, the coverage of the Mine
Act is not limited to extractive activities only. The Act,
crucially, extends to a variety of activities involved in
preparing coal. The statute’s jurisdictional reach is
deliberately broad, and the concomitant definitions are not
rigid. As the Senate Committee Report stated, “what is
considered to be a mine and to be regulated under this Act”
ought to “be given the broadest possibl[e] interpretation,” and
any “doubts” about jurisdiction ought to “be resolved in favor
of inclusion of a facility within the coverage of the Act.”
S. Rep. No. 95-181, at 14 (1977), reprinted in 1977 U.S.C.C.A.N.
3401, 3414. In sum, Congress concluded that the workplace
hazards associated with mining coal or other minerals required
safety and health measures specifically tailored to the
industry. Congress thus produced a comprehensive statute to
ensure that the people who face such dangers -- even workers
involved not in extraction but in preparation -- would be
protected.
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III.
Power Fuels contends that MSHA’s jurisdiction under the
Mine Act does not reach the company’s blending terminal.
According to Power Fuels, the facility simply blends and stores
coal as directed by a utility, and it does not undertake the
type of work usually performed by the operator of a coal mine.
But the Mine Act plainly says that a covered coal mine may
engage in the “work of preparing coal,” 30 U.S.C. § 802(h)(1)(C)
-- such as “mixing,” “storing,” and “loading” coal, as well as
other comparable activities, id. § 802(i). The Act even states
that coal mines may include “custom coal preparation
facilities.” Id. § 802(h)(1)(C). Whether this question is viewed
through the prism of the kind of facility that Power Fuels
operates or the kind of work that Power Fuels performs, it is
clear that Power Fuels falls within the coverage of the Mine
Act.
A.
Power Fuels’ blending terminal is the type of facility that
is subject to the Mine Act. The Mine Act enables MSHA to
regulate “[e]ach coal or other mine,” “each operator of such
mine,” and “every miner in such mine.” 30 U.S.C. § 803; see id.
§ 802(d), (g), (h). The statutory meaning of “coal or other
mine” expressly embraces facilities engaged in the “work of
12
preparing coal.” Id. § 802(h)(1)(C). The coal mines covered by
the Act also specifically include “custom coal preparation
facilities.” Id. Power Fuels’ blending terminal is such a
facility.
At the blending terminal, Power Fuels receives, tests,
weighs, samples, mixes, blends, stores, loads, and transports
coal to meet the specifications of its customer, Dominion. With
some eight thousand tons of coal mixed each day and eight days
of fuel stored onsite, this is not a small operation. Coal
preparation logically involves an anticipated use -- preparation
for something else. See also Bureau of Mines, U.S. Dep’t of the
Interior, A Dictionary of Mining, Mineral, and Related Terms 226
(Paul W. Thrush ed., 1968) (defining “coal preparation” as a
“collective term for physical and mechanical processes applied
to coal to make it suitable for a particular use”). The
anticipated use here is consumption at Dominion’s power plant
across the road. As Power Fuels itself explains, Dominion’s
plant “employs state-of-the-art systems,” and the composition of
each coal blend produced by Power Fuels “has to meet precise
specifications to react properly in the furnace burn chamber.”
Petitioner’s Br. at 3, 5. Even though Dominion sets the
specifications, it is the Power Fuels facility that prepares the
coal for the finely calibrated, continually customized
13
consumption process at Dominion’s plant. In letter and spirit,
the Mine Act extends to facilities of this kind.
B.
It is further evident that the type of work performed by
Power Fuels comes within the purview of the Mine Act. The Act’s
definition of “coal or other mine” refers to the “work of
preparing coal.” 30 U.S.C. § 802(h)(1)(C). Under the statute,
the “work of preparing the coal” may involve an array of
enumerated actions -- “breaking, crushing, sizing, cleaning,
washing, drying, mixing, storing, and loading” coal. Id.
§ 802(i). The string of statutory verbs is indicative of
Congress’s intent to regulate a comprehensive range of
activities related to coal preparation. More pointedly, several
of those verbs describe precisely what Power Fuels is doing.
Power Fuels avers that it does not crush, size, screen, or wash
coal. But, as Power Fuels acknowledges, it does engage in
several of the covered functions: the terminal mixes, stores,
and loads coal.
Beyond the enumerated activities, the “work of preparing
the coal” also encompasses “such other work of preparing such
coal as is usually done by the operator of the coal mine.” Id.
Power Fuels argues that this phrase serves to limit the listed
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verbs to work “of the type” usually performed by mine operators.
We do not read the phrase so restrictively.
We think this phrase is one of inclusion, not exclusion. It
broadens the range of activities covered rather than limiting
them. Indeed, the statute tells us that the “work of preparing
the coal” includes the enumerated verbs “and” also this “other
work.” Id. (emphasis added). Under the grammatical “rule of the
last antecedent,” the qualifying words (here, “as is usually
done by the operator of the coal mine”) ordinarily modify only
the term that they immediately follow (here, “such other work of
preparing such coal”). See, e.g., Barnhart v. Thomas, 540 U.S.
20, 26-28 (2003); see also 2A Norman J. Singer & J.D. Shambie
Singer, Sutherland Statutes and Statutory Construction § 47:33
(7th ed. 2014). Moreover, the phrase “as is usually done by the
operator of the coal mine,” 30 U.S.C. § 802(i) (emphasis added),
refers to the particular coal mine in question, not
a paradigmatic coal-mine operator, as Power Fuels suggests.
Our interpretation accords not only with the grammatically
sound meaning of this provision, but also with the mode of
analysis mandated by precedent. This court has explained that
the Mine Act “sets forth a functional analysis, not one turning
on the identity of the consumer.” United Energy Servs., Inc. v.
Fed. Mine Safety & Health Admin., 35 F.3d 971, 975 (4th Cir.
1994). We have emphasized that “the proper focus of our analysis
15
is on the safety of mining operations,” and indeed it is highly
significant if a company’s “employees are subject to the same
risks as any other employee engaged in the ‘work of preparing
coal.’” Id. The inquiry turns on how the facility uses the coal
and whether the employees are exposed to the safety and health
hazards associated with coal-preparation activities. The text of
the statute, which defines “coal or other mine” and the “work of
preparing the coal,” provides basic tools for this functional
test. 30 U.S.C. § 802(h)(1)(C), (i). Power Fuels’ blending
terminal performs the “work of preparing coal” -- indeed,
massive quantities of coal each day -- and thereby subjects
workers to the risks contemplated in the Mine Act.
Power Fuels contends that this interpretation admits no
limitation. That is incorrect. The limitations are expressed in
the statute itself. The Mine Act covers those sites used for the
“work of preparing coal,” including “custom coal preparation
facilities,” like that operated by Power Fuels. Id.
§ 802(h)(1)(C). Covered sites may be engaged, inter alia, in the
“mixing,” “storing,” and “loading” of coal as well as “such
other work of preparing such coal as is usually done” by this
entity. Id. § 802(i). Such activities are the reason the Power
Fuels facility is in business. In fact, the statute seems
written with coal-preparation sites like Power Fuels’ in mind.
But the Mine Act does not encompass all companies that burn or
16
consume coal, and we do not suggest that it does. The
jurisdictional inquiry is more particularized. MSHA’s own
enforcement guidance indicates that the agency “will not inspect
facilities where coal is prepared solely to facilitate loading
and not to meet specifications or to render the coal for any
particular use.” Mine Safety & Health Admin., U.S. Dep’t of
Labor, 1 Program Policy Manual § 3-4, at 2 (rev. ed. June 12,
2014). In other words, MSHA’s jurisdiction does not extend to
every facility where coal may in some way be involved. The scope
of the Act may still exceed what Power Fuels might wish, but
that of course is a matter of policy entrusted to Congress, not
the courts.
By contrast, Power Fuels’ suggested approach may herald a
return to the era before the Mine Act was enacted in 1977. One
predecessor statute, the Federal Coal Mine Safety Act, ch. 877,
66 Stat. 692 (1952), covered a much narrower range of coal
operations. Under this 1952 statute, a “mine” was used only for
the “work of extracting . . . coal” and the “work of processing
the coal so extracted” by the mine operator. § 201(a)(7), 66
Stat. at 692 (emphasis added). The “work of processing the coal”
was restricted to that “usually done by the operator,” and it
specifically excluded processing activities “usually done by a
consumer or others.” Id. Seventeen years later, Congress
broadened the statutory coverage in the Federal Coal Mine Health
17
and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742. The
1969 legislation defined a “coal mine” as involved in the “work
of extracting . . . coal” and the “work of preparing the coal so
extracted,” and the term’s meaning expressly included “custom
coal preparation facilities.” § 3(h), 83 Stat. at 744. The
revised law spoke of “preparing” rather than “processing” coal,
and it eliminated the language from the 1952 statute that had
excluded coal processing usually done by a consumer or other
actors. § 3(h), (i), 83 Stat. at 744. Finally, in 1977, Congress
passed the Mine Act, integrating safety and health protections
for miners of coal and other minerals into one statute --
covering such workers whether they are engaged in extraction,
milling, or preparation. 30 U.S.C. § 802(h)(1)(C). The present
Mine Act provision, notably, no longer references coal “so
extracted”: it simply uses the now-familiar term, the “work of
preparing coal.” Id.; see id. § 802(i).
The 1977 Mine Act has driven the functional analysis
employed by this court. We decline the invitation to interpret
the Mine Act in a way that returns extraction, or other outmoded
distinctions, to the center of the analysis. Such an approach
might have been appropriate under the legislative framework that
prevailed a half century ago. It is not today.
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C.
The parties disagree over the degree of deference we owe to
the Secretary of Labor’s interpretation. The basic question is
whether we should defer to the Secretary’s interpretation so
long as it is reasonable, Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-44 (1984), or whether his
interpretation is entitled to respect only to the extent of its
“power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). But we need not explore that issue. Congress’s intent in
the Mine Act is plain, and “[i]f the intent of Congress is
clear, that is the end of the matter.” Chevron, 467 U.S. at 842;
see also id. at 843 n.9. In any event, the Secretary’s
interpretation here warrants respect. See Sec’y of Labor ex rel.
Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 114-15 & n.3 (4th
Cir. 1996). The Secretary, after all, is the administrator
charged with overseeing the borderline between the background
regulations of OSHA and the specialized regulations of MSHA. We
have been instructed not to “waste [our] time in the mental
acrobatics needed to decide whether an agency’s interpretation
of a statutory provision is ‘jurisdictional’ or
‘nonjurisdictional.’” City of Arlington v. FCC, 133 S. Ct. 1863,
1870 (2013). Instead we are asked to decide, “simply, whether
the statutory text forecloses the agency’s assertion of
authority, or not.” Id. at 1871. In this instance, it does not.
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IV.
For the foregoing reasons, the petition for review is
denied.
PETITION FOR REVIEW DENIED
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