RNS Services, Inc. v. Secretary of Labor, Mine Safety and Health Admin. (MSHA)

• Decision Date: 29 May 1997
• Docket Number: No. 96-3245,96-3245
• Citation: 115 F.3d 182
• Parties: 1997 O.S.H.D. (CCH) P 31,354 RNS SERVICES, INC., Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), and Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 182

115 F.3d 182

1997 O.S.H.D. (CCH) P 31,354

RNS SERVICES, INC., Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), and Federal Mine Safety and Health Review Commission, Respondents.

No. 96-3245.

United States Court of Appeals Third Circuit.

Argued Jan. 6, 1997.

Decided May 29, 1997.

R. Henry Moore (Argued), Heather A. Wyman, Buchanan Ingersoll Professional Corp., Pittsburgh, PA, for Petitioner RNS Services, Inc.

Colleen A. Geraghty, Jerald S. Feingold (Argued), United States Department of Labor, Office of the Solicitor, Arlington, VA, for Respondent Secretary of Labor, Mine Safety and Health Administration (MSHA).

BEFORE: GREENBERG, COWEN and ALITO, Circuit Judges

OPINION OF THE COURT

COWEN, Circuit Judge.

RNS Services, Inc. ("RNS") petitions for review of an order of the Federal Mine Safety and Health Review Commission ("the Commission"). While not contesting the merits of the Commission's decision, RNS claims that the Federal Mine Safety and Health Administration ("MSHA") lacks jurisdiction over its No. 15 Refuse Pile ("the Site") in Barr Township, Pennsylvania. In order for jurisdiction to be present, the governing statute requires that coal be processed at the Site in acts constituting "the work of preparing the coal." 30 U.S.C. § 802(i) (1988). RNS contends that the MSHA (and the Commission) lack jurisdiction because the Site is not one at which "the work of preparing the coal" occurs and the material handled at the Site is not pure coal. We conclude that RNS's interpretation of the statute is incorrect and we will affirm.

I. Facts and Procedural History

This is the review of a final order of the Commission. The case arises out of two citations issued by the Secretary of Labor (acting through the MSHA) to RNS under Title I, Section 104(a) of the Federal Mine Safety and Health Act, 30 U.S.C. § 814(a) ("the Act" or "the Mine Act"). The citations alleged that RNS failed to record the results of the daily examination of the Site, in violation of 30 C.F.R. § 77.1713(c), and failed to have a ground control plan for the Site, in violation of the safety standard at 30 C.F.R. § 77.1000. RNS did not contest the facts of the violations as cited, but instead challenged the Commission's jurisdiction over the Site. RNS asserted that MSHA lacked jurisdiction because the Site was not a "mine" as that term is defined in Section 3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1). RNS lodged its challenge pursuant to 30 U.S.C. § 815(a).

After conducting an expedited evidentiary hearing pursuant to 30 U.S.C. § 815(d), an administrative law judge agreed with petitioners. The ALJ held that the Site was not a "mine" and, therefore, not subject to MSHA jurisdiction. On petition to the Commission for discretionary review pursuant to 30 U.S.C. § 823(d)(2)(B), the Commission reversed the decision of the ALJ and held that the loading and transportation of coal that occurred at the Site were sufficient to render the Site a "mine" under 30 U.S.C. § 802. RNS petitions for review.

II. 30 U.S.C. Section 802

A. "Work of Preparing the Coal"

The Mine Act explains that "[a] 'coal or other mine' means an area of land ... used in ... the work of preparing the coal...." 30 U.S.C. § 802(h)(1). Accordingly, a "coal mine" is a site at which, inter alia, "the work of preparing the coal" usually occurs. 30 U.S.C. § 802(i). The Act delineates activities that constitute "the work of preparing the coal":

'work of preparing the coal' means the breaking, 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.

Turning to the case law, in Pennsylvania Elec. Co. v. Federal Mine Safety and Health Review Comm'n ("Penelec "), we held that "the delivery of raw coal to a coal processing facility is an activity within the Mine Act, but not the delivery of completely processed coal to the ultimate consumer." 969 F.2d 1501, 1504 (3d Cir.1992) (citing Stroh v. Director, Office of Workers' Comp. Progs., 810 F.2d 61, 64 (3d Cir.1987)). See also Hanna v. Director, Office of Workers' Comp. Progs., 860 F.2d 88, 92-93 (3d Cir.1988). In Stroh, we found that "shovel[ing coal] into [a] truck, and haul[ing] it to independently owned coal processing plants" was integral to the work of preparing the coal. Id. at 62. We further noted that the loaded coal's subsequent transportation over public roads did not alter its status as an activity that is part of the work of preparing the coal. Id. at 65.

Penelec applied a functional analysis, wherein the propriety of Mine Act jurisdiction is determined by the nature of the functions that occur at a site. That analysis has its roots in Wisor v. Director, Office of Workers' Comp. Progs., 748 F.2d 176, 178 (3d Cir.1984), was applied in Stroh, 810 F.2d at 64, and has been adopted by the Fourth Circuit. See United Energy Servs., Inc. v. Federal Mine Safety & Health Admin., 35 F.3d 971, 975 (4th Cir.1994).

In the instant case, loading, the principal function that occurs at the Site, is an activity specifically listed in the Act as constituting "the work of preparing the coal." 30 U.S.C. § 802(i). The petitioner asserts that the Commission mistakenly made a per se ruling that whenever loading is present at a site at which coal is handled, that site is a "mine." We do not find that the Commission has made such a per se ruling. Instead, the Commission took note that at the Site, coal is in fact loaded, at a place regularly used for that purpose, in preparation for further processing. The Commission concluded that the plain meaning of the statute and the relevant case law made clear that these activities were sufficient to render the situs of these activities a "mine." ¹ The Commission was cognizant that the coal refuse is loaded at the Site for delivery to "the Cambria Co-Generation Facility (Cambria) in Ebensburg, Pennsylvania, which generates electricity and steam. The material supplied by RNS to Cambria is broken and sized at Cambria's facility." Op. of the ALJ, RNS App. at 7. The coal is delivered from the Site to Cambria, where it is further prepared before reaching a form useable by its ultimate consumer. The storage and loading of the coal is a critical step in the processing of minerals extracted from the earth in preparation for their receipt by an end-user, and the Mine Act was intended to reach all such activities. Moreover, as the Commission noted, we have already adjudicated the activities that occur at the Cambria plant to be "the work of preparing the coal." Air Products & Chemicals, Inc. v. Secretary of Labor, Mine Safety and Health Admin., 15 F.M.S.H.R.C. 2428 (Dec.1993), aff'd, 37 F.3d 1485 (3d Cir.1994). It follows logically that the handling of the coal at the Site in order that it may be readied for subsequent processing at Cambria also constitutes "the work of preparing the coal."

The list of items indicative of "the work of preparing the coal" enumerated in the Mine Act is by no means exclusive. This is demonstrated by the additional phrase "and such other work of preparing such coal as is usually done by the operator of the coal mine." It is noteworthy that this sentence does not say, "[work] usually done by the operator of a coal mine," as RNS states in its brief. RNS Br. at 15 (emphasis added). If it did, one might have to compare the activities at the alleged coal mine with those of a typical, paradigmatic, "usual" coal mine. The sentence as it actually appears in the statute, however, does not help RNS. It simply explains that the work of the coal mine is the work that is usually done in that particular place. The fact that the Site is perhaps an unconventional coal mine does not defeat its status as a coal mine for the purposes of section 802.

B. Purity of the Coal

With regard to the issue of whether the mineral composite removed from the Site is in fact coal, the ALJ made a factual finding that "[t]esting of material removed from the pile indicates that it shows the characteristics of coal." Op. of the ALJ, RNS App. at 8. We have no reason to believe that the ALJ's findings were clearly erroneous.

In addition, the statute gives no indication that it is concerned only with coal in forms that are pure or nearly so. The statute regulates "coal or other mines," so it plainly is not concerned solely with traditional coal. 30 U.S.C. § 802(h)(1). In Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 592 (3d Cir.1979), we held that the operations of a preparation company that separated a low-grade fuel from sand and gravel that had been dredged from a riverbed came within the Act. It was immaterial that the company processed "dredged refuse": "[T]he company's process of separating from the dredged refuse a burnable product ... which was then sold as a low-grade fuel," placed that work within the definition of "coal preparation" and thus made the operation a "mine." Id.

C. "Coal or Other Mine"

In section 802(h)(1), "coal or other mine" is defined directly:

(A) an area of land from which minerals are extracted in nonliquid form ..., (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...