Rns Services, Inc. v. Secretary of Labor, Mine Safety and Health Administration (Msha), and Federal Mine Safety and Health Review Commission

115 F.3d 182, 1997 CCH OSHD 31,354, 1997 U.S. App. LEXIS 12510, 1997 WL 283776

• Court: Court of Appeals for the Third Circuit
• Decided: May 29, 1997
• Docket: 96-3245
• Status: Published

Opinions

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 discretionaiy 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 “shovelling coal] into [a] truck, and haulpmg] 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 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.

(emphasis added).

We find that this section is 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.² As the Commission noted in its decision reversing the ALJ, “[t]he definitions of coal mine and coal preparation in sections 3(h) and 3(1) [codified at 30 U.S.C. §§ 802(h)(1) and (I)] are ‘broad[J ‘sweeping,’ and ‘expansive.’” RNS App. at 17 (quoting Stoudt’s Ferry, 602 F.2d at 591-92). Since the Site was used in preparing the coal for its further processing at the Cambria plant, the activity was within the sweep of the statute.

The Site seems to be specifically described in the statute by such words as “impound-ments” (storage facilities) and “custom coal preparation facilities,” since it serves a specialized purpose in a larger coal-processing operation. The sweeping inclusion of “lands,” “slopes,” and “other property” further indicates Congress’s plain intention that the Commission have broad jurisdiction over locations at which coal is processed.

Finally, we note that the Site may independently fall under the jurisdiction of the MSHA as a “land[ ] .. .resulting from[ ] the work of extracting such minerals from their natural deposits in nonliquid form....” 30 U.S.C. § 802(h)(1). The Secretary has not raised this argument on appeal, however, and we leave its adjudication for another day.

D. Purposes of the Act

When reading the Act, we are mindful that “[t]he canons of statutory construction teach us to construe such remedial legislation broadly, so as to effectuate its purposes.” Stroh, 810 F.2d at 63. As set forth in section 101, “Congressional findings and declaration of purpose,” the Mine Act was passed in large part to bolster the powers of the federal government to regulate the effects of mining operations on health and safety:

Congress declares that—

(a) the first priority and concern of all in the coal or other mining industry must be the safety and health of its most precious resource — the miner....

(g) it is the purpose of this chapter (1) ... to direct the ... Secretary of Labor to develop and promulgate improved mandatory health or safety standards to protect the health and safety of the Nation’s coal or other miners; (2) to require that each operator of a coal or other mine and every miner in such mine comply with such standards....

30 U.S.C. § 801.

Congress was sufficiently concerned about the health and safety conditions at mines that, as was stated in Air Products, “[u]nder the Mine Act, enforcement is not left to the MSHA’s discretion. Section 103(a) [codified at 30 U.S.C. § 813(a) ] requires the agency to inspect all surface mines in their entirety at least twice a year.” 15 F.M.S.H.R.C. at 2436 n. 2. (Commissioner Doyle, concurring).

In the instant case, the Commission has legitimate concerns about worker safety and health at the Site. True potential hazards arise from the fact that part of the Site is banked; there are concerns about fire safety and the composition and circulation of dust at the Site. Tripping and stumbling are additional hazards. Audio Tape of Oral Argument (Jan. 6, 1997) (on file with the Clerk, U.S. Court of Appeals for the Third Circuit).

Guided by the declaration of purpose in section 101 and the need to read remedial statutes broadly, we do not read this statute to be facially ambiguous concerning the propriety of the Commission’s jurisdiction over the Site. The plain meaning of the statute is evident on its face. To upset this plain meaning by appealing to an extrinsic source, appellants must carry a high burden: “[C]lear statutory language placets] an extraordinarily heavy burden on the party who seeks to vary it by reference to legislative history.” Paskel v. Heckler, 768 F.2d 540, 543 (3d Cir.1985). See also Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (“[0]nly the most extraordinary showing of contrary intentions” justifies altering the plain meaning of a statute.).

Here, a look at the legislative history does not bolster appellant’s position; on the contrary, it confirms the position of the Secretary of Labor. The Senate report indicates that a principal reason for passing the Act and amending the predecessor Coal Act was to expand jurisdiction:

[I]ncluded in the definition of ‘mine’ are lands, excavations, shafts, slopes, and other property, including impoundments, retention dams, and tailings ponds. These latter were not specifically enumerated in the definition of mine under the [predecessor] Coal Act. It has always been the Committee’s express intention that these facilities be included in the definition of mine and subject to regulation under the Act, and the Committee here expressly enumerates these facilities within the definition of mine in order to clarify its intent.... [T]he Committee is greatly concerned that [at the time of a recent accident affecting an unstable dam] the scope of the authority of the Bureau of Mines... was questioned. Finally, the structures on the surface or underground, which are used or are to be used in or resulting from the preparation of the extracted minerals are included in the definition of ‘mine’. The Committee notes that there may be a need to resolve jurisdictional conflicts, but it is the Committee’s intention that what is considered to be a mine and to be regulated under this Act be given the broadest possible] interpretation, and it is the intent of this Committee that doubts 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 (emphasis added).

We conclude, therefore, that the legislative history clearly shows that expansive jurisdiction was intended.

III. Conclusion

It is clear to us that the April 22, 1996, decision of the Commission is in accord with the intent of Congress. For the foregoing reasons, the Petition for Review of the Order of the Federal Mine Safety and Health Review Commission will be denied.

Costs taxed against petitioner.

1 . We hold that the only reasonable interpretation of the Commission’s holding in the instant case is that MSHA appropriately exercises jurisdiction over a location in which coal is loaded in preparation for further processing. In its decision, the Commission noted that the processing occurred at the Site "[p]ursuant to a long-term contract.” App. at 524. The Commission also recited the relevant statutory language, “as is usually done by the operator of the coal mine." App. at 527. Further, the Commission framed the key question as “whether the few activities that do take place at the No. 15 pile are sufficient to bring that site under the jurisdiction of the Mine Act.” App. at 528. In reviewing the propriety of MSHA jurisdiction, the Commission considered only the work that "is usually done by the operator of the coal mine,” i.e., “loading.” App. at 527. In short, the Commission found that a limited range of coal-processing activities regularly occurred at the Site.App. at 528. To paraphrase National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 420, 112 S.Ct. 1394, 1403, 118 L.Ed.2d 52 (1992), we believe that the Commission's failure to explicitly state in one sentence that the MSHA had jurisdiction because “loading” was the activity that "usually occurr[ed]” at the Site "does not require a remand under those circumstances."

We further note that Justice Frankfurter explained in Securities and Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943), that the Court's concern in that case was that federal courts not "intrude upon the domain which Congress has exclusively entrusted to an administrative agency” in situations where "an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made.” In the instant case, no factual or other determination that Congress sought to "exclusively entrust” to the Commission is being intruded upon by the courts. Rather, 30 U.S.C. § 816(a), "Judicial Review of Commission Orders,” specifically explains that

the court shall have exclusive jurisdiction of the proceeding and the questions determined therein, and shall have the power to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside, in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified.... The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.

2 . The dissent, with its "basement bin” example, overlooks our holding (in the instant case and prior cases) that the MSHA has jurisdiction only over locations in which, inter alia, coal undergoes processing that prepares the coal for its ultimate use. See also Penelec, 969 F.2d at 1504 ("the delivery of completely processed coal to the ultimate consumer” is not "an activity within the Mine Act”); Stroh, 810 F.2d at 64 (for jurisdiction to attach, the coal at issue must not yet be “a finished product in the stream of commerce"). For purposes of determining MSHA jurisdiction under 30 U.S.C. § 802(i), therefore, the “work of preparing such coal as is usually done by the operator of the coal mine” cannot include the handling of coal that is in finished form and in the possession of its ultimate consumer, as it would be in the dissent's "basement bin.”