Shamokin Filler Co. v. Fed. Mine Safety & Health Review Comm'n

• Decision Date: 11 July 2014
• Docket Number: No. 12–4457.,12–4457.
• Parties: SHAMOKIN FILLER COMPANY, INC., Petitioner v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration (MSHA), Respondents.
• Court: U.S. Court of Appeals — Third Circuit

772 F.3d 330

SHAMOKIN FILLER COMPANY, INC., Petitioner

v.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration (MSHA), Respondents.

No. 12–4457.

United States Court of Appeals, Third Circuit.

Argued: Dec. 10, 2013.

Opinion Filed: July 11, 2014.

Adele L. Abrams, Esq. [argued], Law Office of Adele L. Abrams, P.C., Beltsville, MD, for Petitioner Shamokin Filler Company Inc.Sara L. Johnson, Esq. [argued], U.S. Department of Labor, Arlington, VA, for Respondent–Appellee Secretary of Labor.

Before: McKEE, Chief Judge, FUENTES and CHAGARES, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Petitioner Shamokin Filler Company, Inc., operates a coal preparation facility in Shamokin, Pennsylvania that has been regulated by the Federal Mine Safety and Health Administration (“MSHA”) since 1977. After a change in ownership in 2009, the new owners challenged MSHA's jurisdiction over the Shamokin facility, contending that the Occupational Safety and Health Administration (“OSHA”), not MSHA, should oversee it.¹ The Secretary of Labor, along with an Administrative Law Judge for the Federal Mine Safety and Health Review Commission, and the same Commission's appellate body, all disagreed and concluded that because Shamokin was engaged in the “work of preparing the coal,” as defined in the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 802(i), MSHA's assertion of jurisdiction was proper. Shamokin petitions for review of the Commission's final order, arguing that its plant does not engage in the “work of preparing the coal” because it makes its 100% coal products out of already processed coal.

Shamokin's interpretation of the statute lacks any basis in the text of the Mine Act, and we decline to adopt it. Shamokin also requests reversal of an evidentiary determination excluding evidence of MSHA's non-jurisdiction over other plants. We find this evidentiary challenge to be without merit. For the reasons that follow, we will deny the petition for review.

I. BACKGROUND²

A. Legal and Administrative Framework

The U.S. Department of Labor oversees, in relevant part, two agencies devoted to workplace safety and worker health: OSHA and MSHA. OSHA administers the Occupational Health and Safety Act of 1970 (the “OSH Act”) and regulates workplace safety and worker health unless Congress has conferred jurisdiction on another agency in an industry-specific statute. See 29 U.S.C. § 653(b)(1). In this case, OSHA and the OSH Act govern Shamokin's plant unless MSHA, administering the Mine Act, governs instead.

The difference in jurisdiction results in a difference in oversight. MSHA's regulatory framework is more specific and extensive than OSHA's in regulating safety and health hazards associated with the handling of coal, particularly with regard to workers' exposure to respirable coal dust. Compare 30 C.F.R. Part 71 with 29 C.F.R. Part 1910, Subpart Z. Because of the dangers inherent in mining, Congress also gave the Secretary more rigorous enforcement mechanisms under the Mine Act than under the OSH Act. For example, the Mine Act, unlike the OSH Act, requires two inspections per year for surface mines, permits inspections to be conducted without a warrant, and in specified circumstances authorizes inspectors to issue orders requiring withdrawal of miners from the mine. See 30 U.S.C. §§ 813(a), 814(d), 814(e), 817(a) ; Donovan v. Dewey, 452 U.S. 594, 606, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) ; RNS Servs., Inc. v. Sec'y of Labor, Mine Safety & Health Admin. (MSHA), 115 F.3d 182, 187 (3d Cir.1997).

In order to determine whether MSHA and the Mine Act govern, we must decide whether the facility to be regulated is a “coal or other mine, the products of which enter commerce, or the operations or products of which affect commerce.” 30 U.S.C. § 803 ; see RNS Servs., Inc., 115 F.3d at 183. In relevant part, a “coal or other mine” under the Mine Act includes “lands, ... facilities, equipment, machines, tools, or other property, ... used in, or to be used in, ... the work of preparing coal ... and includes custom coal preparation facilities.” 30 U.S.C. § 802(h)(1) –(h)(2). We have found this provision to be “so expansively worded as to indicate an intention on the part of Congress to authorize the Secretary to assert jurisdiction over any lands integral to the process of preparing coal for its ultimate consumer.” RNS Servs., Inc., 115 F.3d at 186 (emphasis added). The Mine Act defines “the work of preparing the coal” as “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.” 30 U.S.C. § 802(i).

We employ a “functional analysis” in assessing whether MSHA has jurisdiction, under which we give the “broadest possible scope to [M]ine Act coverage.” Pa. Elec. Co. v. Fed. Mine Safety & Health Review Comm'n (“Penelec”), 969 F.2d 1501, 1503 (3d Cir.1992) (quotation marks omitted). What matters most is how the company uses the coal:

Turning to the case law, in [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 [at 1504] (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. [810 F.2d] 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).

RNS Servs. Inc., 115 F.3d at 184.

B. Procedural History

Between 1977 and 2009, MSHA treated Shamokin's facility, operated by another owner, as a mine and inspected it for compliance with the Mine Act. In 2009, Shamokin changed ownership. The current owners (children of the former owners) wrote to the Secretary of Labor requesting that MSHA relinquish jurisdiction over the plant. The Secretary refused. Between 2009 and 2011, the Secretary, through MSHA, issued a number of citations against Shamokin for violations of the Mine Act that MSHA inspectors found at Shamokin's plant. Among the most serious of these citations were numerous violations of MSHA's respirable dust standards.

Shamokin contested the citations in front of an ALJ of the Federal Mine Safety and Health Review Commission. Shamokin stipulated that it was liable for the violations and associated penalties to the extent that MSHA appropriately exercised jurisdiction over the plant. However, Shamokin objected to MSHA's jurisdiction, on the grounds that it was not operating a “coal or other mine,” but instead was mainly engaged in the manufacture of products made out of coal rather than the preparation of anthracite coal. After an ALJ found that MSHA had jurisdiction, Shamokin appealed to the Mine Commission's appellate body, which affirmed the ALJ.

C. Factual Findings of the Mine Commission

The facts as found by the Mine Commission are conclusive as Shamokin mounts no argument to show that they are not supported by substantial evidence. See 30 U.S.C. § 816(a). The ALJ specifically found that, “the Carbon Plant is a custom coal preparation facility that stores, sizes, dries and loads coal to make it suitable for subsequent industrial use.” App. at A25. The ALJ also determined Shamokin's key witness “offered contradictory, inconsistent, and suspect testimony.” Id. Specifically, there was “an attempt by the owners to obstruct the amount of coal used by the Carbon Plant, the percentage of coal versus non-mined materials, and the actual nature and extent of its coal versus non-coal operations.” Id. The ALJ determined that Shamokin's assertion that it was principally engaged in manufacturing coal products, rather than coal processing, was belied by the evidence: “over 6,000 tons of [Shamokin's] product, ‘carb-o-cite,’ made of 100% anthracite coal, was sold in 2009, as compared to only a few tons of multiple products containing no coal or coal mixtures.... This Court noted that neither inspector ... observed any mixing of coal with non-coal materials at the plant.” Id. at A26. The ALJ concluded that “[Shamokin] is storing large amounts of coal, screening it to remove impurities and ensure size quality, drying it, and loading it in bags appropriately sized to be sold in the stream of commerce.” Id. at A28. The Mine Commission's appellate body affirmed the ALJ's decision as supported by “substantial evidence.” Id. at A36.

D. Conclusions of Law of the Mine Commission

The ALJ determined that “[t]he fact that [Shamokin] is customizing the formulas to meet industry and customer specifications only strengthens the Secretary's position that [Shamokin] is operating a custom coal preparation facility and should, therefore, continue to be covered under MSHA's jurisdiction.” Id. at A28. The Mine Commission affirmed, concluding that that the ALJ “was correct in concluding that the Carbon Plant performs the ‘work of preparing the coal,’ and thus is a ‘mine’ ... subject to jurisdiction under the Mine Act.” Id. at A38.

E. Evidentiary Ruling

The ALJ granted the Secretary's motion seeking to exclude evidence gathered by a 2004...