Lancashire Coal Co. v. Secretary of Labor, Mine Safety and Health Admin. (MSHA), s. 91-3433

• Decision Date: 29 June 1992
• Docket Number: Nos. 91-3433,91-3566,s. 91-3433
• Parties: , 1992 O.S.H.D. (CCH) P 29,745 LANCASHIRE COAL COMPANY, Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 388

968 F.2d 388

61 USLW 2040, 1992 O.S.H.D. (CCH) P 29,745

LANCASHIRE COAL COMPANY, Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION

(MSHA), Respondent.

Nos. 91-3433, 91-3566.

United States Court of Appeals, Third Circuit.

Argued Feb. 25, 1992.

Decided June 29, 1992.

James R. Haggerty, Steven P. Fulton (argued), Reed Smith Shaw & McClay, Pittsburgh, Pa., for petitioner.

David S. Fortney, Deputy Sol., Allen H. Feldman, Associate Sol., Kerry L. Adams, Counsel for Appellate Litigation, Deborah Greenfield (argued), U.S. Dept. of Labor, Washington, D.C., for respondent.

Before: SLOVITER, Chief Judge, SCIRICA and NYGAARD, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

Before us is a petition of Lancashire Coal Company for review of a decision by the Federal Mine Safety and Health Review Commission (Review Commission) affirming by an equally divided vote a ruling by an administrative law judge upholding two citations issued by the Mine Safety and Health Administration (MSHA) against Lancashire in connection with reclamation work done at an abandoned coal preparation plant. The issue before us is whether MSHA had statutory jurisdiction over the worksite at the time the citations were issued. Underlying this straightforward issue is the more complex question of the role of the federal courts in construing a statute in which Congress apparently inadvertently failed to include the dispositive jurisdictional language.

I. Facts and Procedural History

The parties stipulated to most of the pertinent historical facts.

On March 20, 1989, an employee of the contractor engaged to dismantle some unused structures was killed during the demolition of a coal silo at the Lancashire Coal Company Preparation Plant in Cambria County, Pennsylvania. The coal silo had not been used since 1971.

The area where the accident occurred was adjacent to a sealed coal mine known as "Lancashire Mine # 25," which was owned by Lancashire's parent company, Inland Steel Company. No coal had been mined at Lancashire Mine # 25 since 1983, and in 1986 all mine shafts were sealed. Although MSHA conducted periodic inspections of the worksite for several years after the mine was sealed, an MSHA Field Office declared the worksite to be "permanently abandoned" in September 1988, and MSHA consequently ceased inspecting the worksite.

Under Pennsylvania law, a mine operator is required to remove surface facilities (such as silos) as part of the process of restoring lands that had been used for mining. In late 1988, Lancashire hired K & L Equipment Co., Inc., to dismantle the structures at the worksite.

On March 20, 1989, four K & L employees were engaged in dismantling the coal silo, which measured approximately sixty-five feet in height and forty feet in diameter. No supervisor or foreman was assigned to the project. The victim, Robert Bell, was engaged in cutting steel reinforcement bands from the base of the silo when a section of the silo collapsed, burying Bell alive in approximately forty tons of debris.

The day after the accident, MSHA inspectors arrived at the worksite to investigate the accident. MSHA concluded that the accident was caused by "management's failure to provide an adequate plan for the safe demolition of the coal silo to prevent exposure of the worker to the hazards of falling material. The presence of coal in the silo, causing pressure on the weakened portion of the silo, also contributed to the accident." App. at 145. Accordingly, in March and April 1989 an MSHA inspector issued three citations and two orders to Lancashire with regard to the reclamation work. The citations were for (1) Lancashire's failure to maintain the coal silo in good repair at the time of the demolition, (2) Lancashire's failure to file records of K & L's work at the site, and (3) Lancashire's failure to give notification that it was "reopening" a mine.

Lancashire challenged these citations in a proceeding before an administrative law judge. The ALJ vacated the citation for reopening the mine because the language in the regulation requiring notification was limited to situations in which active mining operations were to be recommenced at the site, see 30 C.F.R. § 77.1712 (1991), and the parties stipulated that Lancashire took no actions to recommence active mining operations.

However, the ALJ upheld the first two citations, holding that the worksite was subject to the jurisdiction of MSHA. The ALJ reasoned that although MSHA had previously accorded the mine "permanently abandoned" status, this determination meant only that MSHA would no longer conduct periodic inspections of the site, not that the site was no longer a coal mine subject to MSHA's statutory jurisdiction. The ALJ observed that when silos and other structures are constructed at a coal mine, MSHA indisputably has jurisdiction. The ALJ concluded that the silo was a "structure[ ] which [was] the result of the prior active mining of coal, including extraction and processing, and fall[s] within the statutory definition of coal or other mine." App. at 200.

Lancashire appealed the ALJ's decision to the Federal Mine Safety and Health Review Commission, which upheld the decision by an equally divided vote. Lancashire has filed a timely petition for review of this final decision by the Review Commission, and we have jurisdiction pursuant to 30 U.S.C. § 816(a)(1) (1988).

II. Discussion

The Federal Mine Safety and Health Act provides: "Each coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce, and each operator of such mine, and every miner in such mine shall be subject to [MSHA regulation]." 30 U.S.C. § 803 (1988) (emphasis added). The question whether MSHA had statutory jurisdiction over the worksite at the time the citations were issued turns on whether the abandoned Lancashire Coal Preparation Plant is a "coal or other mine" within the meaning of the Act.

Section 3(h)(1) of the Act defines "coal or other mine" as:

(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) 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. In making a determination of 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.

30 U.S.C. § 802(h)(1) (emphasis added). The parties agree that the silo at issue here had been used to store coal, and coal storage is explicitly covered within the definition of "work of preparing the coal" contained in 30 U.S.C. § 802(i).

Lancashire argues that because the silo that collapsed had not been used since 1971, and the preparation plant of which it was a part ceased being used well before the accident occurred, the silo was not "used in, or to be used in" the work of preparing the coal within the meaning of section 3(h)(1) at the time MSHA asserted jurisdiction in this case, and therefore was not a "coal or other mine" subject to MSHA jurisdiction. Lancashire parses the statutory language to cover three potential time periods for the involvement of structures in mining activity: (1) the term "used in" meaning current use, i.e. "being used in"; (2) the term "to be used in" meaning contemplated use; and (3) the term "resulting from" meaning former use.

The statute refers to three different mining activities: "extracting" minerals; "milling" minerals; and "preparing coal or other minerals." Lancashire argues that because the language of section 3(h)(1) explicitly covers within the definition of "coal or other mine" structures "used in, or to be used in, or resulting from" the work of extracting coal (all three time periods) but only structures "used in, or to be used in" the milling of or preparing coal, the silo in this case does not fall under MSHA's statutory jurisdiction. The absence of the words "resulting from" before the words "the work of preparing coal" is dispositive in Lancashire's statutory construction. ¹

The Secretary of Labor concedes that the silo was a structure "resulting from" the preparing of coal and that section 3(h)(1) does not, by its express terms, cover it. The Secretary argues, however, that Congress in section 3(h)(1) "inadvertently omitted" to include the words "resulting from" before the words "work of preparing coal." Brief for Respondent at 14. The Secretary contends that there is an ambiguity in the statutory language created by the definition of the term "coal mine" in section 3(h)(2), which does expressly cover structures resulting from coal preparation. See 30 U.S.C. § 802(h)(2). ² Although the Secretary acknowledges that section 3(h)(2) is not applicable to this case because its definition of coal mine only applies to subchapters II, III, and IV of the Act (which cover, inter alia, the Black Lung Act), the Secretary argues that "[r]ather than mindlessly assume that Congress intended to create two inconsistent definitions of 'coal mine' within the same subsection of the statute," we should look to the legislative history to determine legislative intent. Brief for Respondent at 17.

The words of the statute lend considerable support for...