When Is a Non-Mine Mine a “Mine?” The Riddle of MSHA’s ... · PDF fileWhen Is a Non-Mine Mine a “Mine?” The Riddle of MSHA’s Assertion of Jurisdiction over Electric Power

When Is a Non-Mine Mine a “Mine?”The Riddle of MSHA’s Assertion

of Jurisdiction over Electric Power Plantsand Other Coal Users

Thomas C. MeansCrowell & Moring LLP

Washington, D.C.

Synopsis§ 4.01. Introduction ......................................................................... 131§ 4.02. MSHA’s Jurisdiction Generally ......................................... 133§ 4.03. Case Law Highlights ........................................................... 135

[1] — The Third Circuit: Penelec and Its Progeny ................ 135[a] — The Penelec Precedent ...................................... 135[b] — Air Products. .................................................... 138[c] — RNS Services .....................................................139

[2] — The Fourth Circuit ..................................................... 140[3] — Case Law in the Seventh and Eighth Circuits .......... 143

[a] — Commonwealth Edison .....................................144[b] — AECI .................................................................147

§ 4.04. Critical Analysis: Putting the “Mine” Back in “Mine Safetyand Health” .......................................................................... 152[1] — MSHA’s Interpretation Must Be Rejected .................. 152[2] — Custom Coal Preparation Facilities ............................ 157

§ 4.05. Conclusion ............................................................................ 157

§ 4.01. Introduction.One of the regulatory riddles familiar to those who follow federal

banking law is the phenomenon of what are called “non-bank banks.”1 Theriddle took shape when the Federal Reserve Board became convinced ofthe need to regulate certain financial institutions that did not fall within thestatutory definition of a “bank” that was subject to the agency’s regulatoryauthority, but that offered many of the services that banks offered. Althoughthe agency decided that the plain purposes of the banking laws would bebest served by defining these non-bank institutions as “banks” subject tothe agency’s controls and promulgated regulations to accomplish that, the

1 See Board of Governors of the Federal Reserve System v. Dimension Financial Corp.,474 U.S. 361 (1986).

Cite as 20 Energy & Min. L. Inst. ch. 4 (2000)

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Supreme Court struck down those regulations as ultra vires. Althoughsympathetic to the agency’s good intentions, the Court could not permitthe agency to treat a non-bank as if it were a bank. It declared unlawful theagency’s “[i]nvocation of the ‘plain purpose’ of legislation at the expenseof the terms of the statute itself,” and referred the agency to Congress forlegislative relief if the statute fell short of providing the agency with theregulatory authority over non-banks that it deemed necessary to protect thepublic interest.2

Today the Federal Mine Safety and Health Administration (MSHA)faces a similar situation with respect to certain facilities such as coal-firedelectric power plants, cogeneration plants, and synthetic fuels and othermanufacturing plants that use coal (or coal refuse) either as a fuel or afeedstock for their operations. Invoking its statutory mission to protect thehealth and safety of miners (those persons who work at a mine.)3 MSHAhas introduced us to the non-mine mine. Although the Supreme Court hasnot yet had the opportunity to evaluate the legitimacy of MSHA’s novelcreation, most (but not all) court decisions and decisions of the FederalMine Safety and Health Review Commission (Commission) have sustainedthe agency’s actions, at least until quite recently. This chapter surveys thecase law and analyzes MSHA’s legal arguments supporting its jurisdictionto regulate non-mine mines, focusing on coal-fired electric power plantsspecifically. We then demonstrate that the Federal Mine Safety and HealthAct of 19774 (“Mine Act” or “Act”) does not grant MSHA jurisdictionover these non-mine “mines.”

§ 4.02. MSHA’s Jurisdiction Generally.Although coal-fired electric power plants have been historically the

exclusive domain of the Occupational Safety and Health Administration(OSHA) insofar as workplace health and safety is concerned, there havebeen a number of situations, primarily in the last decade, in which MSHAhas asserted jurisdiction over certain coal-handling activities at traditionalpower plants, as well as cogeneration plants and synthetic fuel

2 Id. at 373-74.3 30 U.S.C. § 802(g).4 30 U.S.C. § 801 et. seq.

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manufacturing plants. Because the Occupational Safety and Health Act(OSH Act)5 gives OSHA jurisdiction over virtually all workplaces –– exceptthose where it is preempted by another federal agency such as MSHA whichhas exercised statutory authority over matters of occupational safety andhealth6 –– it is necessary to examine MSHA’s statutory authority to assertjurisdiction: in other words, what is the universe of workplaces MSHA hasbeen given statutory authority to regulate?

Section 4 of the Mine Act endows MSHA with jurisdiction over “[e]achcoal or other mine, the products of which enter commerce, or the operationsor products of which affect commerce, and each operator of such mine,and every miner in such mine.”7 The Mine Act defines “coal or other mine”as follows:

(h)(1) “coal or other mine” means (A) an area of land from whichminerals are extracted in nonliquid form or, if in liquid form, areextracted with workers underground, (B) private ways and roadsappurtenant to such area, and (c)lands, excavations, undergroundpassages, 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, usedin, or to be used in, or resulting from the work of extracting suchminerals from their natural deposits in nonliquid form, or if in liquidform, with workers underground, or used in, or to be used in, the millingof such minerals, or the work of preparing coal or other minerals, andincludes custom coal preparation facilities. In making a determinationof what constitutes mineral milling for purposes of this Act, theSecretary shall give due consideration to the convenience ofadministration resulting from the delegation to one Assistant Secretaryof all authority with respect to the health and safety of miners employedat one physical establishment.8

5 29 U.S.C. § 651 et seq.6 29 U.S.C. § 653 (b)(1).7 30 U.S.C. § 803.8 30 U.S.C. § 802(h)(1)(emphasis added).

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The statute also defines “coal mine” for purposes of titles II, III, andIV as:

an area of land and all structures, facilities, machinery, tools, equipment,shafts, slopes, tunnels, excavations, and other property, real or personal,placed upon, under, or above the surface of such land by any person,used in, or to be used in, or resulting from, the work of extracting insuch area bituminous coal, lignite, or anthracite from its natural depositsin the earth by any means or method, and the work of preparing thecoal so extracted, and includes custom coal preparation facilities.9

In addition, the “work of preparing the coal” is broadly defined to mean:

the breaking, crushing, sizing, cleaning, washing, drying, mixing,storing and locating of bituminous coal, lignite, or anthracite, and suchother work of preparing such coal as is usually done by the operator ofthe coal mine.10

As MSHA has correctly noted, these are clearly very broad definitionswhich reflect a legislative intent that MSHA comprehensively regulate themining industry, including the coal industry. The legislative history of theMine Act confirms a manifest congressional intent that the definition of a“coal or other mine” should be broadly construed and that close questionsshould be decided in favor of MSHA’s jurisdiction. The Senate CommitteeReport states 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 andto 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 ofinclusion of a facility within the coverage of the Act.”11 The judicial andadministrative decisions interpreting and applying the Mine Act have dulynoted that congressional intent, and have held the Mine Act to govern theoperations of a broad universe of facilities.12 In addition, courts, in asomewhat circular fashion, have expressed the need to construe MSHA’s

9 30 U.S.C. § 802(h)(2)(emphasis added).10 30 U.S.C. § 802(i).11 S. Rep. No. 181, 95th Cong., 1st Sess. 14, reprinted in 1977 USCCAN 3414.12 See, e.g., Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979),cert. denied, 444 U.S. 1015 (1980)(operation that purchases dredged material from a

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jurisdiction broadly in partial reliance on the need to achieve the statutorygoal of safety in mining operations.13

It was this legal background that bolstered MSHA when, in the lastdecade or so, with the number of coal mines shrinking in the East, and withmining becoming increasingly less hazardous –– due to technologicaladvances and the success of Mine Act regulation –– MSHA began to castits eye with increasingly frequency on the coal handling activities conductedby nonmining entities such as coal-fired electric power plants, cogenerationplants, and synthetic fuels manufacturing plants. A number of judicial andadministrative decisions have resulted as the operators of some of thefacilities that MSHA has sought to regulate have contested MSHA’sjurisdiction. Below we review the case law highlights that have been shapingthe law.

§ 4.03. Case Law Highlights.A look at the reported decisions reveals that the United States Court of

Appeals for the Third Circuit has had a disproportionate number of suchcases. We begin there, where the leading case is Pennsylvania Electric Co.v. Federal Mine Safety and Health Review Commission14 (“Penelec”).

[1] — The Third Circuit: Penelec and Its Progeny.[a] — The Penelec Precedent.

Penelec was a major beachhead for MSHA’s expanding jurisdiction.In Penelec, a divided Third Circuit affirmed the decision of a divided ReviewCommission, sustaining MSHA’s jurisdiction over the coal handling andprocessing areas of an electric power plant. The dispute had its genesis inthe imposition by the Environmental Protection Agency (EPA) ofincreasingly stringent environmental regulations governing sulfur dioxideemissions that required in 1977 the construction of an on-site coal cleaning

river bottom, transports it to a processing plant that separates sand and gravel fromburnable material, and sells the burnable material as low grade fuel “akin to coal” is amine).13 See, e.g., United Energy Services, Inc. v. Federal Mine Safety and Health Admin.,

35 F.3d 971, 975 (4th Cir. 1994).14 Pennsylvania Elec. Co. v. Federal Mine Safety and Health Review Comm’n, 969F.2d 1501 (3d Cir. 1992)(on reconsideration).

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plant.15 MSHA by agreement with the utility and OSHA, assumedregulatory jurisdiction over the new coal cleaning plant. That coal cleaningplant, though owned by Penelec and built on Penelec’s power plant site,was operated by a subsidiary of the coal company that was the parent toone of the mine operators that supplied coal to the power plant by conveyorbelts from adjacent mines.16

That was the regulatory status quo for the next 11 years, until MSHAin 1988 also asserted jurisdiction over all portions of the utility’s coal-handling operations up to the point of arrival of the coal at the cleaningplant (including buildings, conveyor belts and related equipment includedin the handling of coal after its delivery to the utility up to and through thecleaning plant, but prior to its arrival at the generating units). In citingguarding violations on the head drives of conveyors carrying coal from thescales (to which it had been delivered by the mines) to either the boilers orthe cleaning plant, MSHA had asserted jurisdiction for the first time overany portion of the power plant’s own operations (i.e., in contrast to thecontractor-operated cleaning plant).

MSHA’s jurisdiction was then put into issue when the utility contestedthe MSHA citations. The Federal Mine Safety and Health ReviewCommission (“Review Commission”), in a split decision, upheld MSHA’sjurisdiction, ruling that the “head drives . . .are equipment or machines‘used in’ the preparation of coal within the meaning of the Mine Act,” andthus conveyor head drives fell within the definition of a “mine” regardlessof the fact that the utility was the ultimate coal consumer and that itconducted those activities in preparing the coal for its own use.17 In dissent,Commissioner Doyle criticized the majority’s expansion of MSHA’sjurisdiction to include coal handling by the ultimate consumer for its ownuse, and asserted that this was inconsistent with Commission precedent,

15 Although the coal was initially cleaned and crushed at the mines, the new cleaningplant was designed to reduce the level of sulfur in some of the incoming coal.16 969 F.2d at 1503, 1507.17 Pennsylvania Electric Co., 11 F.M.S.H.R.C. 1875, 1879-82 (Oct. 1989). The fact

that there was a preparation plant operated by an actual mine operator on power-plantproperty may have been an important, but unstated, factor leading to the finding thatMSHA had jurisdiction over the conveyor belts leading to the preparation plant. The

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referring to the Commission’s holding in Oliver Elam,18 that thejurisdictional inquiry did not end merely with an analysis of the type ofwork involved (e.g., coal crushing) but must also include consideration of“the nature of the operation” overall.19

The court of appeals, in turn, affirmed the Commission’s decision, overa vigorous dissent by Judge Mansmann.20 The majority held that the statutecreates a “functional analysis” that was based on what activities wereperformed, not who (utility versus mine) actually performed them, andstressed that the delivery of coal from a mine to a processing facility viaconveyor constituted coal preparation “usually done by the operator of acoal mine,” citing 30 U.S.C. Section 802(i).21 Since the court viewed thecited conveyor head drives as serving a necessary function in delivering“raw coal” to the cleaning plant where it underwent further processingbefore it was transferred to the ultimate consumer, the power plant’s boilers,it concluded that the power plant fell under the court’s precedents holdingthat “the delivery of raw coal to a coal processing facility is an activitywithin the Mine Act, but not the delivery of completely processed coal tothe ultimate consumer.”22

Judge Mansmann, in dissent, expressed the view that “it makes themost sense to view Penelec’s coal conveying operations as part of the process

court may well have been concerned that, if it were to rule otherwise, then MSHAjurisdiction over activities normally conducted by mine operators could be avoided byrelocating those activities to power plant property.18 In Oliver M. Elam, Jr., Co., 4 F.M.S.H.R.C. 5 (1982), the Review Commissionoverturned MSHA’s claim of jurisdiction over a commercial loading facility. That facility,which was unaffiliated with any mines or mining companies, crushed the coal that was

delivered to it by its coal broker customers and loaded it onto barges for shipment. Inrejecting MSHA’s contention that the facility was a mine because it was conductingseveral of the activities listed in the definition of the “work of preparing the coal” – e.g.,“crushing” and “loading” – the Review Commission held that the jurisdictional analysisinvolved more than just “whether the operation performs one or more of the listed workactivities,” and required a broader inquiry. Id. at 7.19 Id. at 1892 (Doyle, dissenting).20 969 F.2d 1501.21 969 F.2d at 1503.22 Id. at 1504.

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of electric power generation rather than as work of preparing coal.”23 Shecomplained that under the majority’s analysis “every end-user of coal –including electric utilities, steel mills, aluminum mills, and chemical plantswhich have never been subject to regulation under MSHA – that engagesin any of the activities enumerated in section 802(i) of the Mine Act, i.e.,breaking, storing, mixing, etc., would fall within the section 802(h)(1)penumbra of ‘work of preparing coal.’ ”24

[b] — Air Products.Subsequent to Penelec, the Court of Appeals for the Third Circuit

declined to review and thus effectively upheld (without issuing an opinionexplaining its reasoning) a divided Commission decision sustaining MSHA’sjurisdiction over the coal preparation activities of a cogeneration plant. InAir Products and Chemicals, Inc.,25 the Commission had upheld an MSHAcitation issued when the cogeneration plant denied entry to an MSHAinspector. The plant burned coal refuse which was delivered by truck anddeposited into a hopper where it was passed through a grizzly to removeover-sized material. Then it was conveyed to a Bradford breaker to breakand screen the material. The refuse was further screened, sized and crushedbefore it was fed into the plant’s boilers. The plant also consumed run-of-mine coal which was also delivered by truck to a hopper, then transferred,screened, sized, crushed, and stored until burned.26

As the Commission noted, the plant had initially advised MSHA that“the refuse supplier would perform coal processing at its mine before therefuse was transported to [the plant], and that [the plant] would onlycustomize the refuse by sizing and crushing it to the particular specificationsrequired by its boiler.”27 Based on that information, MSHA had advisedthe plant that it “would not fall within MSHA’s jurisdiction.”28 However,

23 969 F.2d at 151724 Id. at 1509 (emphasis in original).25 Air Products and Chemicals, Inc., 15 F.M.S.H.R.C. 2428 (1993), review denied, 37F.3d 1485 (3d Cir. 1994).26 15 F.M.S.H.R.C. at 2429.27 Id.28 Id. The ad hoc nature of MSHA’s assertion of jurisdiction over such non-mine mines

is illustrated by Westwood Energy Properties, 11 F.M.S.H.R.C. 2408 (1989)(MSHA settled

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when MSHA later discovered that the refuse supplier was not, in fact,screening or sizing the material before delivering it to the plant and that theplant had acquired and was using the Bradford breaker, MSHA advised theplant that its “coal handling facilities were subject to Mine Actjurisdiction.”29

The Commission majority upheld that assertion of jurisdiction, eventhough the plant had been built and its employees trained in accordancewith OSHA specifications and regulations, and had even been inspected byOSHA. It held that, consistent with Penelec, because the plant engaged “insome of the coal preparation activities enumerated in section 3(i) of theMine Act, namely, breaking, crushing, sizing and storing coal,” the plant’s“coal handling facilities are subject to Mine Act jurisdiction.”30

[c] — RNS Services.The most recent Third Circuit case again followed Penelec, again over

a strong dissenting opinion. In RNS Services, Inc. v. Secretary of Labor,31

a divided Third Circuit panel affirmed a divided Commission32 followingits Penelec precedent in upholding MSHA jurisdiction over the loading ofraw coal refuse at a refuse pile preparatory to shipment to a cogenerationplant where it would be subject to further processing before it was burned.The court again relied on the statutory definition of the “work of preparingthe coal,” finding its inclusion of the term “loading” as the key to MSHAjurisdiction, and it rejected the argument that the refuse was not “coal”

by agreeing not to regulate the cogen plant, but asserting its right to regulate similarplants).29 Id. at 2429-30.30 Id. at 2431. Although the majority expressed “concern” that confusion could result

from MSHA’s failure to follow the procedures set forth in the MSHA-OSHA InteragencyAgreement, 44 Fed. Reg. 22827 (April 17, 1979), amended 48 Fed. Reg. 7521 (Feb. 22,1983)(“Interagency Agreement”), for “resolving disputes with operators regarding dualregulation by OSHA and MSHA at electrical generation facilities,” it found that MSHAhad given adequate notice to the plant that it would be asserting jurisdiction over its coalhandling facilities.31 RNS Services, Inc., v. Secretary of Labor, 115 F.3d 182 (3d Cir. 1997).32 RNS Services Inc., 18 F.M.S.H.R.C. 523 (1996).

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within the terms of the Mine Act’s jurisdictional definitions. Circuit JudgeAlito, in dissent, decried the majority’s interpretation that “any person whoperforms any listed activity [within the definition of the “work of preparingthe coal”] under any circumstances is subject to the Mine Act, so long as heperforms such activity on a regular basis.”33 The dissent stated that, contraryto the majority’s interpretation, Penelec actually had not ruled that anyonewho performs any of the listed activities is subject to the Act, but ratherthat the Act only applies if the activity performed was coal preparation asis “usually done by the operator of a mine,” as the definition in Section 802(i)provides; otherwise, the dissent complained, virtually every consumer ofcoal would be subjected to the Act.34

[2] — The Fourth Circuit.There are two Fourth Circuit decisions of note. In Old Dominion Power

Co. v. Donovan,35 the court of appeals refused to apply the Mine Act toregulate electrical utility employees periodically working on actual mineproperty. The case has relevance to the issue discussed here, primarily basedon the court’s concern that MSHA’s assertion of jurisdiction over the utilityworkers could create serious hazards because those employees would likelybe confused as to which standards governed their activities, MSHA’s orOSHA’s, as they moved from workplace to workplace.36 However, becausethat case did not involve the issue of MSHA jurisdiction over the operationsof an electric power plant, we focus on United Energy Services v. MSHA,37

which did. Although it cited Penelec with approval and upheld MSHAcitations issued to a cogeneration plant operator, in United Energy Servicesthe Fourth Circuit ruled much more narrowly than MSHA had sought, neveractually upholding MSHA jurisdiction at the plant itself, perhaps reflectinga disinclination to extend MSHA’s jurisdiction over operations normallysubject to OSHA.38

33 115 F.3d at 192.34 Id.35 Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985).36 772 F.2d at 98-99.37 United Energy Services v. MSHA, 35 F.3d 971 (4th Cir. 1994).38 See Old Dominion, 772 F.2d at 98-99.

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The case arose when MSHA citations, originally issued to Island CreekCoal Company at its North Branch Mine refuse area, were modified toname United Energy Services – the contractor operating the adjacentcogeneration plant for its owners – as the operator. The citations allegedvarious violations involving the loading and operating of the conveyorbeltlines which carried coal refuse from the gob pile at the North BranchMine to the cogeneration plant, including violations of MSHA’s training,electrical examination and guarding standards. Each of the citations wasissued for conditions or practices involving the work done at the gob pileon Island Creek mine property, not at the cogeneration plant itself. UnitedEnergy Services was cited because its employees were performing the workin question and because the conveyor belt and most of the equipment wereowned by the power plant.39

A Review Commission Administrative Law Judge (ALJ) upheld thecitations and the Commission declined review. The ALJ’s specific holdingwas that United Energy Services was an independent contractor performingservices at Island Creek’s mine and thus was liable as an “operator” of thatmine40 within the meaning of the Mine Act.41 The ALJ explained:

there is a sufficient nexus between the work and services performed by[United Energy Services] with respect to the operations of the conveyorbelt system . . . and the coal extraction and coal processing and stock-piling that have taken place at the [mine], [and] [t]he services performedby [United Energy Services] are essential, not only to the power plantthat depends on a steady supply of gob to fuel its boilers, but they arealso essential to, and closely connected with, the extraction of the coalthat is processed through [Island Creek’s preparation plant].42

MSHA had also argued that the further processing and treatment of thegob at the power plant fell within the definition of the “work of preparing

39 15 F.M.S.H.R.C. 2022 at 2023-34 (A.L.J. )(1993).40 The Mine Act defines an “operator” as follows: “any owner, lessee, or other personwho operates, controls, or supervises a coal or other mine or any independent contractorperforming services or construction at such mine.” 30 U.S.C. § 802(d).41 15 F.M.S.H.R.C. at 2057-61.42 Id. at 2058.

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coal” that had been held to be within MSHA’s jurisdiction in Penelec andits progeny, but the ALJ declined to rule on that contention. Though heagreed that the gob seemed to be subjected to the same type of “preburningprocesses” as found to be within MSHA jurisdiction in those cases, he alsonoted that – unlike those cases where the power plant owner had been citedfor violations on power plant property43 – here, the violations occurred offpower plant property and were issued to an independent contractor, not tothe plant owner. Accordingly, he declined to sustain (or reject) MSHA’sjurisdiction on that alternative basis.44

Upon United Energy Services’ appeal, the Fourth Circuit upheld theALJ’s decision that United Energy Services was subject to MSHA regulationas an independent contractor performing services at Island Creek’s mine.The court ruled simply that the ALJ had correctly held that (1) “UnitedEnergy is subject to the provisions of the Mine Act as an ‘operator’ of acoal mine in connection with the activities of its employees on the adjacentcoal mine property [and, (2)] that MSHA has preempted OSHA’s regulatoryjurisdiction over the conduct at issue.”45 Thus, whether MSHA would havehad jurisdiction over coal preparation or other activities by power plantemployees occurring solely on the cogeneration plant property was notdecided.46

Although the issue of MSHA jurisdiction over the coal handlingactivities of power plant employees on power plant property has never beendecided by the Fourth Circuit, the court in United Energy Services did citethe Third Circuit’s Penelec decision (and its functional analysis) withapproval, and the court’s reasoning could be taken as supportive of a broaderassertion of MSHA jurisdiction. After citing the legislative history of theMine Act, with its expression of intent that the Act be broadly construed,with “doubts [to] be resolved in favor of inclusion of a facility within thecoverage of the Act,”47 the Fourth Circuit stated:

43 The ALJ cited Penelec and Westwood Energy, supra.44 Id. at 2060-61.45 35 F.3d at 978 (emphasis added).46 It bears noting that MSHA nonetheless began inspecting the coal handling areas at

the cogen plant itself pursuant to an agreement with OSHA. MSHA’s authority to do sowas never tested, however, because the cogen plant never protested.47 Id. (quoting the 1977 Senate Committee Report).

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We find no support . . . for the position that the coverage of employeesworking at a mine site should depend on the identity of their employer.If employees of Island Creek were maintaining the dozer trap, conveyorbelt and other equipment, instead of United Energy’s, they wouldcertainly be protected by the Mine Act’s provisions. United Energy’semployees are subject to the same risks as any other employee engagedin the “work of preparing coal” and the fact that its employer is theultimate consumer of the coal does not determine whether thoseemployees are entitled to the protection of the Act.48

Yet, although the court apparently agreed with the Third Circuit’sconclusion in Penelec that end users of the coal are not exempt from theMine Act coverage49 the court also noted that “delivery of coal to a customerafter it is processed usually does not fall under the coverage of the MineAct.”50 United Energy’s activities, however, “occur a step earlier in theoverall process,” the court reasoned, since they “involve the transportationof coal to the preparation facility and thus are part of the ‘work of preparingthe coal.’”51

[3] – Case Law in the Seventh and Eighth Circuits.The most recent courts to address these issues have been in the Seventh

and Eighth Circuits.

48 Id. at 975 (emphasis added).49 The court also stated that the “statute sets forth a functional analysis, not one turningon the identity of the consumer.” 35 F.3d at 975.50 35 F.3d at 975 (emphasis added).51 Id. It bears emphasis that the Fourth Circuit did not actually sustain MSHA jurisdictionover the power plant’s handling and processing of the coal it consumes. The court hasruled only as to the coverage of activities undertaken on actual coal mine property, albeitby employees of the power plant’s contractor in furtherance of the power plant’soperations. Moreover, although it has rejected a per se exemption for end-users of thecoal, and has cited Penelec with approval, it has also acknowledged that delivery of coal

to a consumer after it is processed usually does not fall under the coverage of the MineAct.

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[a] — Commonwealth Edison.In September 1998 in Herman v. Commonwealth Edison,52 the federal

District Court for the Northern District of Illinois rejected MSHA’sapplication for a preliminary injunction enjoining Commonwealth Edisonfrom denying MSHA access to its coal-fired electric generating facility.MSHA had sought access after being notified by OSHA that a coal dustexplosion had taken place at the power plant; it sought entry to conduct anaccident investigation and a formal inspection. The district court concluded,however, that MSHA was not likely to succeed in proving that it hadjurisdiction over the power plant, and therefore did not qualify for apreliminary injunction.

The facts were not in dispute and were summarized by the court.53

The power plant purchased coal delivered to the plant by rail from threemines located in the Powder River Basin in Wyoming and Montana. Byblasting, cleaning, and content testing, the mines prepared the coal to theplant’s purchasing specifications, crushing it into pieces no larger than twoinches. At the power plant, several additional steps are taken to prepare thecoal as boiler fuel for that facility or one of the company’s other facilities.After the coal is unloaded and transported to storage areas by conveyorbelt, it is either transported to barges for the company’s other power plants,or to the top floor of the breaker building. After scrap is removed by magnetto protect the belt and crushing equipment (coal can become contaminatedwith metal objects during shipment), for two of the generating units it isthen crushed into pieces one-quarter inch or smaller. The other two boilersrequire coal pulverized to the consistency of face powder. In addition, atsome point in its processing, the coal passes through a coal dust collectorand a sampling facility, and after the coal has been crushed in the breakerbuilding, it is deposited on conveyors carrying it to the main powergeneration building.

The district court reviewed the case law, noting that the holding ofMSHA jurisdiction in United Energy Services was limited to the employeesworking on the premises of an actual coal mine and that jurisdiction was

52 Herman v. Commonwealth Edison, 1998 WL 704335 (N.D. Ill. Sept. 28, 1998).53 Slip op. at 3-6.

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not asserted over the facilities at the power plant itself. It also noted that inRNS Services, the Third Circuit had held that a contractor performed “thework of preparing the coal” because it was loading and transportingunprocessed coal refuse from an abandoned mine site directly to a coalpreparation facility, which then processed the coal into usable form.54

Similarly, it distinguished Penelec, because the equipment cited theredelivered raw coal to the cleaning plant where it underwent furtherprocessing. The court noted that Penelec had relied on two Black LungBenefits Act cases as its basis for distinguishing between delivery of rawcoal to a processing facility which was covered by the Mine Act, and deliveryof completely processed coal to the ultimate consumer, which was not.55

The district court also relied on a series of other cases decided underthe Black Lung Benefits Act – which is Title IV of the Mine Act and whichincorporates the same jurisdictional definitions – supporting the conclusionthat the further handling and preparation done by a coal customer after thecoal had already been prepared for market was not subject to regulation asthe “work of preparing the coal.”56 Moreover, the district court cited

54 Slip op. at 9, citing 115 F.3d at 185.55 Slip op. at 10-11, citing Penelec, 969 F.2d at 1503 (noting also that Penelec statedthat “the delivery of coal from a mine to a processing station via conveyor constitutespreparation ‘usually done by the operator of a coal mine.’”).56 See, e.g., Eplion v. Director, OWCP, 794 F.2d 935, 937 4th Cir. 1986)(a claimantwho loaded prepared coal onto barges was not engaged in “the work of preparing thecoal” because he handled coal after it was prepared for market); Southard v. Director,

732 F.2d 66, 69-70 (6th Cir. 1984)(a claimant was not engaged in “the work of preparingthe coal” where he unloaded processed coal from railroad cars into delivery trucks andstorage piles because the coal was fully extracted and prepared when it was in conditionfor delivery to distributors and customers); Fox v. Director, OWCP, 889 F.2d 1037, 1042(11th Cir. 1989)(an employee of a coke plant which washed and crushed unprocessedcoal was not engaged in “the work of preparing the coal” because he handled coal already

shipped to the consumer; the washing and crushing was the first step of cokemanufacturing, not the last step of coal preparation); Foreman v. Director, OWCP, 794F.2d 569, 571 (11th Cir. 1986)(a power plant employee was not engaged in “the work ofpreparing the coal” even if processing occurred at the plant because the processing wasrequired solely to satisfy the consumer’s needs).

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Director, OWCP v. Consolidated Coal Company57 for the followingproposition:

traditionally, the tipple marks the demarcation point between the miningand the marketing of coal. It is at that structure that the screening ofcoal occurs and the final product is loaded for transport. When coalleaves the tipple, extraction and preparation are complete and it isentering the stream of commerce. While individuals who come incontract with the coal at this interval or later may still suffer a harmfulexposure to coal dust, they are not within the class protected by theBlack Lung statute.58

The court thus rejected MSHA’s contention that performing any of thetasks enumerated in Section 802(i)’s definition of the “work of preparingthe coal” is sufficient to bring an operation within the Act. The districtcourt stated that “the Seventh Circuit’s position is clear: once finished coalin a marketable state has been processed by the mine and placed into thestream of commerce, those who subsequently come in contact with it arenot engaged in the ‘work of preparing the coal.’”59

In that connection, the district court stated that the mines in the PowderRiver Basin perform all the activities usually done by the operator of a coalmine before they ship the coal to customers such as the power plant. Themines ship mostly two-inch pieces of coal, and very few mines crush coalto the quarter-inch or finer pieces required by the power plant. Thus, “thecoal received by defendant is a fully-processed, final product of a mineoperator which has been placed into the stream of commerce. That someindustrial users burn the coal in a 2 inch x 0 inch form as they receive itwithout any further processing highlights the point that this is a finishedproduct in market-ready form.” The court concluded that, “because minesdo not crush coal to one-quarter inch x 0 inch or smaller, crushing coaldown to that size is, by definition, not work usually done by the operators

57 Director, OWCP v. Consolidated Coal Co., 923 F.2d 38, 42 (4th Cir. 1991), pet. forrehearing en banc denied.58 Slip op. at 9.59 Slip op. at 11 (citing cases).

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of coal mines.”60 In sum, the court reasoned that a power plant could bestbe described as a consumer that procures coal for its own consumption.

The district court also rejected MSHA’s contention that the power plantwas a “custom coal preparation facility” within the meaning ofsection 802(h)(1). Noting that the term was undefined in the Mine Act, thecourt stated that the cases indicated that it referred to operations thatprocessed coal for sale or resale and that it did not apply to an entity thatactually consumed the coal it handled.61 The court concluded by notingthat OSHA standards covered coal handling activities at power plants, thatrequiring power plant employees to adhere to conflicting regulations underboth OSHA and MSHA could be dangerous, and that accepting MSHA’sposition would improperly permit MSHA to expand its jurisdiction withoutgoing through public rulemaking procedures.62

In closing, the court stated: “Congress’s intent in passing the Act wasto establish a ‘single mine safety and health law applicable to all miningactivity,’ H.R. Conf. Rep. No. 95-655, at 37 (1977), reprinted in 1977[USCCAN] 3485, 3485, not to regulate all consumption of coal. Anexpansion of the statute’s reach to regulate defendant’s non-mining activitiesgoes beyond the purpose of the Act.”63

On May 18, 1999, the court granted summary judgment for the electricutility and dismissed MSHA’s complaint.64 It reaffirmed its analysis assummarized above and relied also on the recent decision of the EighthCircuit as described below.

[b] — AECI.The United States Court of Appeals for the Eighth Circuit also recently

rejected a similar claim of MSHA jurisdiction over a power plant suppliedwith coal by rail from the Powder River Basin. In Herman v. Associated

60 Slip op. at 12.61 Slip op. at 13-14.62 Slip op. at 15.63 Slip op. at 15 (footnote omitted). The court also noted that Chevron deference wasnot appropriate where the Agency’s interpretation would expand its jurisdiction and isnot supported by the Agency’s prior application of the statute. Slip op. at 15, n.6.64 Herman v. Commonwealth Edison, 1999 WL 350644 (1999).

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Electric Cooperative, Inc.65 (AECI), a divided panel of the court of appealsreversed the decision of the district court for the Eastern District of Missourithat had enjoined AECI from excluding MSHA inspectors from its powerplant property. Much like the operation at issue in Commonwealth Edison,AECI brought coal that had been crushed by the mines into piecesapproximately two and one-half inches in size and then engaged in variouspreparation activities at the power plant before burning the coal. For onegenerator unit, coal was crushed into powder with pulverizers while coalwas broken into quarter inch pieces with hammer mills for the other twounits. MSHA became involved after a complaint to OSHA from a powerplant employee alleging health and safety hazards from coal dust. OSHAreferred the matter to MSHA for help in determining which agency hadjurisdiction. After MSHA concluded that it had jurisdiction over all areasof the plant having to do with coal –– including unloading, storage andpreparation areas –– and sought to inspect, MSHA was denied entry.

Although the district court had upheld MSHA’s claim of jurisdiction,66

a two to one majority of the court of appeals panel reversed. Recognizingthe breadth of the definition of the work of preparing the coal, the court ofappeals stated that the issue was “whether a utility company that performssome of these tasks on previously processed coal is a mine under the Act.”67

Although acknowledging its remedial nature and the congressional intentthat what is to be considered a mine and regulated under the Act was to bebroadly construed, the court nonetheless stated that the “remedial nature ofthe Mine Act does not allow courts to extend its coverage without limit,”citing authority for the proposition that “every company whose businessbrings it into contact with minerals is not to be classified as a mine.”68 Thecourt reasoned that “not all businesses” that perform tasks listed under the“work of preparing the coal” in Section 802(i) can be considered mines:“The Act was designed primarily to protect miners, not employees of coalpurchasers such as electric utilities and steel mills.”69 Citing the

65 Herman v. Assoc. Elec. Cooperative, Inc., 1999 U.S. App. LEXIS 7699 (8th Cir.April 20, 1999), pet. for rehearing en banc denied, 172 F.3d 1078 (8th Cir. 1999).66 Herman v. Assoc. Elec. Coop., 994 F. Supp. 1147 (E.D. Mo. 1998).67 1999 U.S. App. LEXIS 7699 *6-7.68 Id. at *7-8.69 Id. at *9-10.

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Commission’s Oliver Elam decision (for the proposition that whether anoperation is properly classified as mining is an inquiry not only into whetherthe operation performs one or more of the listed work activities, but alsointo the nature of the operation performing those activities), the courtconcluded that although the power plant performed some coal processingoperations listed in Section 802(ii), “its employees are not miners, even inthe broadest sense of the word.”70

The court distinguished the various Commission and court decisionssubjecting utilities to MSHA jurisdiction as falling into two categories:(1) where the utility maintains a presence at a mine to assist in transportingcoal to its generating facility, and (2) where the utility performs allprocessing necessary to convert coal refuse into a marketable product.71

Thus distinguishing those cases, the court held that “after a mine deliversprocessed, marketable coal to a utility [,] any further operations to preparethe coal for combustion are not subject to MSHA jurisdiction.”72 SinceAECI purchased coal that had already been processed into a marketableform by the mine (which sold its coal to approximately 50 commercial andutility customers), and did not participate in transporting the coal from themine, nor were its processing activities necessary to make the coalmarketable, “its coal-handling operations are more properly characterizedas manufacturing than mining.”73

The court concluded by noting that “MSHA may have expertise inregulating the hazards of coal dust, [but] Congress designed the Mine Actprimarily to protect miners. The Secretary cannot claim that Associated’semployees are miners.” Until Congress chooses to expand the Act to coverconsumers of coal such as utilities and steel mills, the court held, “a utilitythat receives processed coal from a mine does not itself become a mine byfurther processing the coal for combustion.”74

70 Id. at *9-10.71 Id. at *11.72 Id. at *11-12 (citing United Energy, 35 F.3d at 975, as “holding that delivery of coalto a consumer after it is processing usually does not fall under the coverage of the MineAct”).73 Id. at *12.74 Id. at *12. As did the district court in Commonwealth Edison, the Eighth Circuitnoted that OSHA has regulations applying to coal handling installations at utility

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Circuit Judge Heaney lodged a vigorous and lengthy dissent. Hecontended that even if the agency’s interpretation that the power plant wassubject to the Mine Act was not entitled to Chevron deference,75 theapplicability of the Mine Act was obvious even on de novo review.76 Relyingon the cases and legislative history showing that the Mine Act should bebroadly construed, the dissent also noted a Conference Report statement ofCongress’s intent to “define[ ] mine to include all underground or surfaceareas from which the mineral is extracted, and all surface facilities used inpreparing or processing the minerals. . . .”77 Since it was undisputed thatthe plant engaged in many of the activities listed in the definition of coalpreparation, the dissent found unequivocal Mine Act coverage.

The dissent criticized the majority for failing to protect workers againstthe unique dangers posed by coal-processing operations, and for its failureto recognize that the power plant’s employees were miners to the extentthey engaged in the coal preparation activities enumerated in Section 802(i).Judge Heaney also emphasized MSHA’s greater expertise in the safety andhealth hazards related to coal, as reflected both in OSHA’s referral of thecase to MSHA and in 1995 OSHA guidelines for enforcing its Part 269regulations only where “MSHA does not in fact ‘exercise statutoryauthority . . . . MSHA jurisdiction relative to power generation plants coversthe processing of coal prior to final transport of the coal into the powergeneration building (where the coal is burned).”78 The dissent found that afunctional analysis of the power plant’s coal-processing operation dictatedMine Act coverage without regard to geography or the fact that the coalprocessor is also the end-user,79 citing decisions of the Commission and

companies, 29 C.F.R. § 1910.269, and that extending MSHA jurisdiction would resultin needless confusion and possible danger to utility workers about whether MSHA orOSHA regulations apply to their conduct.75 See Lastowka, J.A. and Sapper, A.G., “Deference to Agency Interpretations:

Abdication to Ambiguity,” 20 Energy & Min. L. Inst. ch. 3 (2000) infra discussingChevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).76 Id. at *18.77 Id. at *19-21 (emphasis added by the judge), citing H.R. Conf. Rep. No. 95-655 at38 (1977), reprinted in 1977 USCCAN 3485, 3486.78 Id. at *21-25 (quoting the OSHA guidelines).79 Id. at *26.

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Fourth and Third Circuits for the proposition that the Mine Act “sets fortha functional analysis, not one turning on the identity of the consumer.”80

The dissent rejected the majority’s focus on the fact that the coal wasextracted elsewhere, and quoted the Third Circuit’s RNS Services decisionfor the proposition that the definition of a mine “is so expansively wordedas to indicate an intention on the part of Congress to authorize the Secretaryto assert jurisdiction over any lands integral to the process of preparingcoal for its ultimate consumer.”81

Importantly, the dissent noted that the Third Circuit cases haddistinguished between the delivery of raw coal to a coal processing facilitywhich was covered by the Mine Act, from the delivery of completelyprocessed coal to the ultimate consumer, which was not.82 In contrast, thedissent pointed out AECI significantly processed the coal it purchased, andcould not be said to receive completely processed coal. Indeed, the dissentcontrasted the rather minimal processing done at the mine with thesubstantial processing done at the power plant, noting that under themajority’s logic “once raw coal is extracted and shipped to an end user, theMine Act would not apply to any subsequent coal processing irrespectiveof the nature or extent of processing.”83 In sum, it accused the majority ofsubjecting the power plant’s coal processing operation “to a cursory,incomplete, and legally unfounded analysis” and substituting its own narrowinterpretation of the term “mine” for Congress’s direction that the term bebroadly defined.84

The Secretary of Labor petitioned the Eighth Circuit for rehearing andrehearing en banc. On July 28, 1999, both petitions were denied by thecourt.

80 Id. at *26-28.81 Id. at *29-30 (citing 115 F.3d at 186, emphasis added).82 Id. at *30 (citing Penelec, 969 F.2d at 1504, citing Stroh v. Director, OWCP, 810

F.2d at 64).83 Id. at *31-32.84 Id. at *31.

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§ 4.04. Critical Analysis: Putting the “Mine” Back in“Mine Safety and Health.”

In the final analysis, the case law to date is unsatisfactory. The decisionson both sides of the jurisdictional question wrestle valiantly with the issues,but none delivers a legally dispositive knockout blow to the other side.While the arguments mustered by both sides – MSHA and the electricalutilities – have varying degrees of persuasiveness, neither has the intellectualintegrity and conceptual might to put an end to the debate.

There are, however, several critical points that the litigants have failedto address. Turning to those points, it is suggested that MSHA’s claim ofjurisdiction over the power plant’s coal handling activities cannot survive acareful analysis of the statute itself.

[1] — MSHA’s Interpretation Must Be Rejected.MSHA’s interpretation is beguiling in its simplicity, clarity and ease of

application. Since the definition of “mine” includes all land and equipmentused in the work of preparing coal, one need only look to whether theoperation in question performs any of the activities listed in the Mine Act’sdefinition as constituting the “work of preparing the coal.”85 If so, inMSHA’s view, then MSHA has jurisdiction.

This interpretation, despite its superficial appeal, is fundamentallyflawed. If we examine the statute closely, it becomes clear that the MineAct affords MSHA with jurisdiction over the work of preparing coal onlywhen that work is done at a coal mine or at a custom coal preparationfacility. The analysis begins with the definition of “coal or other mine.”

MSHA’s claim of jurisdiction is grounded on the inclusion of thereferenced coal handling activities in the definition of the “work of preparingthe coal,” because the definition of “coal or other mine” includes lands,structures, facilities and equipment used in the preparation of the coal. Oncloser examination, however, MSHA’s theory proves defective because thephrase section 802(i) defines – the “work of preparing the coal” – is not, infact, included in section 802(h)(1); instead, one finds in section 802(h)(1)the “work of preparing coal.” Although one might be tempted to dismissthe difference as a typographical error, that temptation must be rejected

85 See 30 U.S.C. § 802(h)(1) & (i).

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because the different term that section 802(i) defines is in fact used byCongress in the Mine Act, but not in section 802(h)(1). Rather, the term“work of preparing the coal” is used instead in section 802(h)(2)’s definitionof “coal mine,” which MSHA treats as co-extensive with Section (h)(1)insofar as coal mines are concerned.

The difference is significant because the defined term “work ofpreparing the coal” only makes sense in the context of section 802(h)(2)’sdefinition. Although (h)(2) generally parallels (h)(1), (h)(2) differs inspecifically delimiting MSHA’s jurisdiction to the “area of land and allstructures, facilities . . .and other property . . . used in . . . the work ofextracting in such area [coal] from its natural deposits in the earth . . . , andthe work of preparing the coal so extracted and includes custom coalpreparation facilities.” (Emphasis added.)

Thus, the “work of preparing the coal” is “the work of preparing thecoal so extracted” by a mine that is already subject to MSHA’s jurisdiction.In other words, MSHA not only has jurisdiction over the areas and facilities,etc., related to the extraction of the coal, but also over those areas andfacilities where the mine prepares that coal for market (or at custom coalpreparation facilities). In essence, it is not the work of preparing the coalthat in and of itself gives rise to MSHA’s jurisdiction, but the location ofthat preparation activity at a coal mine or custom coal preparation facility.As the Eleventh Circuit explained in a Black Lung Benefits case a decadeago, that “language [in 802(i)] should not extend the definition of coalmine under the Act, but should be construed as a non-exclusive definitionof the types of work occurring on a coal mine site, which may constitutecoal preparation.”86 Moreover, the reference in section 802(i) to the workof “preparing such coal” only has meaning if it references the “work of thecoal so extracted.”

Second, this conclusion is actually reinforced by the often-citedlegislative history regarding the “broadest possible interpretation” that theSenate committee intended.87 Looked at in broader context, asCommissioner Doyle explained in her dissent from the Commission’s

86 Fox v. Director, OWCP, 889 F.2d 1037, 1040 (11th Cir. 1989).87 See text at note 11, supra.

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88 See Pennsylvania Elec. Co., 11 F.M.S.H.R.C. at 1889-90, quoting from S. Rep. No.95-181, 95th Cong., 1st Sess. 14 (1977). The conclusion that Mine Act coverage does

not extend past the boundaries of the mine or coal preparation facility is also stronglyreinforced by the primary current of Black Lung Benefits Act (BLBA) cases. As explainedin the leading case of Stroh v. Director, OWCP, 810 F.2d 61, 63-64 (3d Cir. 1987), todetermine whether someone is a miner under the BLBA, one must undertake a two-pronged analysis: “a ‘situs’ test, which requires work in or around a coal mine orpreparation facility, and a ‘function’ test, requiring performance of coal extraction or

preparation work. Both of these elements must be satisfied . . . .”89 Id.

decision in Penelec, that legislative history passage shows that the breadthof coverage that Congress intended was not focused on going beyond“mines” to other workplaces that handle coal or other minerals – rather, itwas intended that the mines themselves be broadly construed, to includefor example, impoundments, dams, and tailings ponds so that there wouldbe no doubt in the future that all related areas and structures, like the unstableBuffalo Creek dam, were subject to MSHA safety standards.88

Third, there is another way that the language of section 802(h)(1)provides further strong support for the limitation of MSHA jurisdictionover coal preparation to that preparation which is performed at the minewhere the coal was extracted. This support comes from the statutorylanguage that covers the lands, structures, facilities, equipment “usedin . . . the work of preparing coal or other minerals, and includes customcoal preparation facilities.”89 A moment’s reflection reveals that Congresshad to have intended the “work of preparing coal” that is subject to MSHAjurisdiction must be the work that is done at a place that is already a mine,because there would be no reason for Congress to add the words “andincludes custom coal preparation facilities.” That is because, if performingthe “work of preparing coal” anywhere were itself sufficient to create MSHAjurisdiction, there would be no need to also add coverage for custom coalpreparation facilities, since the “work of preparing coal” is exactly whatcustom coal preparation facilities do. Canons of statutory constructiondictate that Congress must have believed that custom coal preparationfacilities would not have been included within the definition of “coal or

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other mine” merely by virtue of the fact that coal preparation work wasdone there.90

Fourth, MSHA’s theory does not have a logical stopping place short ofincluding every individual coal consumer as someone who does coalpreparation. Because MSHA’s interpretation would include every personwho breaks, loads or stores coal, inter alia, and because common sensetells us – including MSHA – that Congress did not intend to regulate as amine operator every individual coal user, MSHA inconsistently applies itsinterpretation to not regulate some of those persons that MSHA’sinterpretation of the Mine Act says it “shall” regulate.91 Not only doesMSHA not regulate the multitude of industrial and individual coal users –– even though they almost certainly store coal prior to using it, and mayload, break, crush, dry, mix or otherwise handle the coal before they burn itor use it to make other things –– but MSHA also does not regulate therailroads and trucking companies that load it and transport it from the minesto their customers.92 That contradiction between MSHA’s theory andpractice is a powerful indicator that MSHA’s interpretation is unreasonable.

Fifth, MSHA’s interpretation (and supporting case law) does not knowwhat to do with the last clause of section 802(i), which limits MSHA’sjurisdiction to those activities within the definition of the “work of preparingthe coal” to those preparation activities “as [are] usually done by the operatorof the coal mine.”93 Indeed, the courts have wrestled with the properinterpretation of this clause. The Commission in RNS has interpreted theThird Circuit’s functional analysis from Penelec as meaning that “each of

90 See, e.g., United States v. Menasche, 348 U.S. 528 (1955).91 30 U.S.C. § 803. See RNS Services, 18 F.M.S.H.R.C. at 529 (MSHA lacks discretionto waive jurisdiction).92 RNS Services, 18 F.M.S.H.R.C. 523, 528-29 (1996)(attributing to the Third and Fourth

Circuit Courts of Appeals the holding that the “transportation of coal” is itself sufficientto confer jurisdiction on MSHA).93 That last clause cannot be construed to apply only to the catch-all phrase “such otherwork of preparing such coal.” Not only do the canons of ejusdem generis and noscitur a

sociis militate in favor of its application to all of the listed coal preparation activities, butit would otherwise result in the very unlimited jurisdiction MSHA properly eschews.

See RNS Services, 115 F.3d at 190-91.

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the activities listed in [802](i) . . . subjects anyone performing that activityto the jurisdiction of the Mine Act.”94 The Third Circuit RNS Servicesmajority apparently recognized the absurdity of that interpretation, because,relying on section 802(i)’s last clause, the court instead construedsection 802(i) –– and implied that the Commission did as well –– to includethose coal preparation activities only when they were performed “at a placeregularly used for that purpose, in preparation for further processing.”95

The court derived this novel interpretation from the fact that section 802(i)speaks not to those activities “usually done by the operator of a mine,” butof “ the mine” (emphasis added), which the court took to mean that theplace where the activities in question were performed if they were regularlyperformed there.96 As the dissent pointed out, however, MSHA itself hadconstrued the phrase to mean “the operator of a mine,” meaning typicalmine operator activities, as had the Third Circuit in a series of prior cases,as well as the Commission in its Oliver Elam and Air Products decisions.97

These authorities reflect a tacit acknowledgment that, despite the use of theword “the” in the statute, Congress must have meant “a.”98

However, there is a third alternative interpretation that does not requirechanging the language of the statute and that interpretation further confirmsthat Congress intended to limit MSHA’s jurisdiction to those preparationactivities that take place at the mine where the coal was extracted. As notedpreviously, the definition of “work of preparing the coal” only makescomplete sense if it refers to the “coal so extracted” at the mine where thepreparation work is also done. Similarly, section 802(i)’s express limitationof jurisdiction to those activities to which “such coal” is subjected givesclear and consistent meaning to the actual language of section 802(i)’sconcluding phrase “as is usually done by the operator of the coal mine” –i.e., the coal mine where such coal is extracted. Giving effect to all of thewords in sections 802(h)(1), (h)(2) and (i), the Mine Act expressly limitscoverage of the listed coal preparation activities to those which are regularly

94 18 F.M.S.H.R.C. at 529.95 RNS Services, 115 F.3d at 184 & n.1.96 Id.97 115 F.3d at 191-92.98 Id. at 192.

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done at the coal mine where the coal was extracted or at custom coalpreparation facilities. Thus, not everything that may be done to coal at amine or custom coal preparation facility is necessarily subject to MSHA’sjurisdiction as the work of preparing coal, but merely those things that theoperator of the mine usually does, e.g., to prepare the coal for market.

[2] — Custom Coal Preparation Facilities.Nor can MSHA successfully classify electric power plants as “custom

coal preparation facilities” to nonetheless salvage its claim of jurisdictionover their coal handling activities. The term will not bear the conceptualweight MSHA would put on it.

It appears that there are no reported decisions supporting the Secretary’scontention that electric power plants or other coal users can be shoe-hornedinto the term “custom coal preparation facilities.”99 Although that term isnot defined in the Mine Act or the Bureau of Mines Dictionary,100 the latterdoes define “custom mill” and “custom plant” and “custom smelter,” thecommon essence of which is a facility engaged in the buying or treating ofores for customers. Moreover, as Commonwealth Edison explained, “casesthat refer to the term indicate that it refers to operations which process coalfor sale or resale.”101 That court also pointed out that, in the case law andcommon industry usage, the term “custom coal preparation facilities” “doesnot apply to consumers of coal that handle coal prior to use.”102

§ 4.05. Conclusion.In sum, not every place that engages in any of the coal preparation

activities listed in section 3(i) is a coal mine. MSHA has jurisdiction overthose coal preparation activities only when they take place at the minewhere the coal was extracted or at a true custom coal preparation facility.Accordingly, when the litigation dust finally settles, MSHA will have toput the “mine” back in “mine safety and health.” The non-mine mine mustgo the way of the non-bank bank.

99 But see RNS Services, 115 F.3d at 186, 192 n.6 (majority and dissent discussingwhether coal refuse pile was “custom coal preparation facility”).100U.S. Bureau of Mines, A Dictionary of Mining, Mineral, and Related Terms (1968).101Slip op. at 13 (citing cases).102Id. at 13-14.

§ 4.05

Documents

When Is a Non-Mine Mine a “Mine?” The Riddle of MSHA’s ... · PDF fileWhen Is a Non-Mine Mine a “Mine?” The Riddle of MSHA’s Assertion of Jurisdiction over Electric Power