United Energy Services, Inc. v. Federal Mine Safety & Health Admin.

• Decision Date: 23 September 1994
• Docket Number: No. 93-2520,93-2520
• Citation: 35 F.3d 971
• Parties: 16 O.S.H. Cas. (BNA) 2017, 1994 O.S.H.D. (CCH) P 30,613 UNITED ENERGY SERVICES, INCORPORATED, Petitioner, v. FEDERAL MINE SAFETY & HEALTH ADMINISTRATION; Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 971

35 F.3d 971

16 O.S.H. Cas. (BNA) 2017, 1994 O.S.H.D. (CCH)

P 30,613

UNITED ENERGY SERVICES, INCORPORATED, Petitioner, v. FEDERAL MINE SAFETY & HEALTH ADMINISTRATION; Federal Mine Safety and Health Review Commission, Respondents.

No. 93-2520.

United States Court of Appeals Fourth Circuit.

Argued May 10, 1994.

Decided Sept. 23, 1994.

ARGUED: Ricklin Brown, Bowles, Rice, McDavid, Graff & Love, Charleston, WV, for petitioner. Elizabeth Hopkins, U.S. Dept. of Labor, Washington, DC, for respondents. ON BRIEF: Monica K. Schwartz, Bowles, Rice, McDavid, Graff & Love, Charleston, WV, for petitioner. Thomas S. Williamson, Jr., Sol. of Labor, Allen H. Feldman, Associate Sol., for Sp. Appellate and Supreme Court Litigation, Steven J. Mandel, Deputy Associate Sol., U.S. Dept. of Labor, Washington, DC, for respondents.

Before MURNAGHAN, Circuit Judge, PHILLIPS, Senior Circuit Judge, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Circuit Judge PHILLIPS wrote the opinion, in which Judge MURNAGHAN and Judge HILTON joined.

OPINION

PHILLIPS, Senior Circuit Judge:

This petition for review requires us to examine the regulatory jurisdiction of the Federal Mine Safety and Health Administration (MSHA) under the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. Secs. 801 et seq., in relation to the regulatory jurisdiction of the Occupational Safety and Health Administration (OSHA) under the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. Secs. 651 et seq. It arises from the issuance by MSHA of a citation and six withdrawal orders to the petitioner, United Energy Services, Inc. (United Energy) for alleged violations of the Mine Act in connection with work performed by United Energy at a coal mine. United Energy, contending that its operations were not subject to regulation by MSHA, but only by OSHA, contested the citation and orders on jurisdictional grounds as well as on the merits. The Federal Mine Safety and Review Commission (the Commission) enforced the citation and orders, concluding in the process that United Energy's operations were covered by the independent contractor provision of the Mine Act, 30 U.S.C. Sec. 802(d) and that MSHA's regulatory jurisdiction preempted that conferred upon OSHA in respect of the conduct in issue. We affirm.

I

The North Branch Cogeneration Plant, owned by North Branch Partners, Ltd. (NB Partners) and located near Bayard, West Virginia, generates electric power by burning coal waste or "gob." The plant is located next to a coal mine owned by the Island Creek Coal Company (Island Creek). A mile-long gob pile on the adjacent coal mine property is expected to provide the plant with fuel for about ten years. During the relevant period, United Energy maintained and operated the power plant pursuant to a service agreement with NB Partners, including the conveyor belt system which transports gob from the adjacent coal mine to the plant. Although the majority of the conveyor system sits on the property owned by NB Partners, a small portion of the system extends approximately 300 to 500 feet onto mine property.

At the time MSHA issued the citation and orders in question, employees of the mine ¹ used bulldozers to load gob from the refuse pile into a device called a dozer trap. The dozer trap deposits the gob onto a conveyor belt. As the gob moves along the belt, a magnet picks up any scrap metal mixed in with the coal waste. The gob eventually is fed into a machine known as a grizzly feeder, which screens out pieces larger than eight inches in diameter. The pieces smaller than eight inches fall onto a conveyor belt which carries the gob to the main conveyor belt located on the North Branch property. With the exception of the bulldozers, all the machinery just described is located on the mine property, but is owned by NB partners and maintained by employees of United Energy. At least one or two United Energy employees work in the mine area every day. In total, the company has about sixteen employees who work in that area.

Once the gob is transported across the property line and is loaded onto the main conveyor belt, it undergoes several processes designed to size and crush the coal. Ultimately, the conveyor belt carries the gob into the plant itself to be burned.

Between February 26 and August 27, 1992, MSHA issued a citation and six orders for violations of the Mine Act in connection with the activities of United Energy employees on the mine property. MSHA officials charged United Energy with failing to comply with the Act's mandatory safety standards and training requirements, and with failing to conduct a monthly electrical examination of the section of the conveyor system located on mine property as required by MSHA regulations.

When MSHA sought to enforce the citation and orders by filing a petition for assessment of civil penalties, United Energy challenged the citation and orders on the ground, inter alia, that its operations were not subject to the regulatory jurisdiction of the MSHA, but only to that of OSHA. An administrative law judge vacated and modified some of the orders, but affirmed others and upheld MSHA's assertion of regulatory jurisdiction over United Energy. The ALJ then determined that United Energy was an independent contractor performing services at a coal mine, and that its activities at the mine therefore were governed by the Mine Act. The ALJ found as fact that United Energy's activities in the mine area were sufficiently continuous for jurisdictional purposes under the Mine Act, and that its services were essential not only to the power plant, but also to the extraction of coal because the power plant was the only consumer of the gob. The ALJ specifically rejected United Energy's argument that MSHA had not sufficiently preempted the jurisdiction of OSHA so that OSHA rather than MSHA had regulatory power over its operations.

United Energy petitioned the Federal Mine Safety and Health Review Commission for discretionary review. Upon the Commission's denial of the petition, the ALJ's decision became the final decision of the Commission.

This petition for judicial review followed. In it, United Energy only challenges the jurisdiction of MSHA to issue the challenged citation and orders.

II

We have jurisdiction to review this petition pursuant to 30 U.S.C. Sec. 816, which provides for appellate review of orders of the Commission in the United States court of appeals for the circuit in which the alleged violation occurred. The activities at issue took place near Bayard, West Virginia. Because the questions we address are matters of statutory interpretation and the facts are essentially undisputed, the standard of review is plenary.

A

The first issue presented is whether by virtue of the activities of its employees on the coal mine property adjacent to the North Branch power plant, United Energy is subject to the provisions of the Mine Act. Specifically, the question is whether United Energy is an "operator" within the meaning of section 4 of the Mine Act, 30 U.S.C. Sec. 803. That section sets forth the coverage of the Act:

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 the provisions of this chapter.

30 U.S.C. Sec. 803 (emphasis added). An "operator" is defined as "any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." 30 U.S.C. Sec. 802(d). The regulations in turn define an "independent contractor" as "any person, partnership, corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a mine." 30 C.F.R. Sec. 45.2(c) (1993). For the reasons that follow, we find that United Energy qualifies as an "independent contractor" performing services at a "coal or other mine."

We first address whether the activities of United Energy's employees on the property of Island Creek Coal Company were at a "coal or other mine," and then consider whether United Energy qualifies as an "independent contractor" as that term is defined in 30 U.S.C. Sec. 802(d).

(1)

The Act defines a "coal or other mine" as

(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 tailing 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 the work of preparing coal or other minerals, and includes custom coal preparation facilities.

30 U.S.C. Sec. 802(h)(1). The "work of preparing coal" is defined as "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal ..., and such other work of preparing such coal as is usually done by the operator of the coal mine."

Prior decisions of this court provide some guidance on the interpretive issue. In Roberts v. Weinberger, 527 F.2d 600, 601-02 (4th Cir.1975), and Norfolk & W. Ry. v. Roberson, 918 F.2d 1144, 1147-48 (4th Cir.1990), cert. denied, 500 U.S. 916, 111 S.Ct. 2012, 114 L.Ed.2d 99 (1991), we considered whether an employee--a truck driver in the one case and a railroad operator in the other--who transported raw coal from a mining site to a preparation facility where it was processed before being reloaded for shipment was engaged "in the extraction or preparation of coal." In those cases, we concluded that the employees' activities were...