Secretary of Labor v. KC Transport, Inc.

Plain-English summary

KC Transport is an independent trucking company that maintained coal-haul and non-mining trucks at an offsite West Virginia facility. MSHA cited two trucks there because they were not blocked against motion while raised for repair. A Commission majority reversed the judge and held that neither the trucks nor the facility was a mine under the Mine Act merely because the trucks had been used, or might later be used, in mining. The majority found that extending MSHA jurisdiction to equipment wherever it traveled would create an unbounded rule covering ordinary offsite repair and storage locations. It granted KC Transport summary decision and vacated both citations; Chair Arthur R. Traynor III dissented.

Decision snapshot

• Cited authority: 30 U.S.C. § 802(h)(1); 30 C.F.R. § 77.404(c)
• Outcome: The judge was reversed, KC Transport received summary decision, and both citations were vacated for lack of MSHA jurisdiction.
• Key point: Mining equipment does not remain a Mine Act jurisdictional site after it leaves a mine for an independent offsite facility with no mining activity.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF
LABOR,                             :        

MINE SAFETY AND
HEALTH                     :                                

ADMINISTRATION
(MSHA)                        :         Docket No. WEVA
2019-0458

:                        

v.                                              
:                                      

:                                                        

KC TRANSPORT,
INC.                                  :

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners

DECISION

BY: Althen and
Rajkovich, Commissioners

This
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Act” or “Mine Act”). It involves two citations issued to
the trucking company, KC Transport, Inc., regarding haul trucks parked for
maintenance at the company’s facility in Emmett, West Virginia. [1] The only
issue before the Commission is whether the Mine Safety and Health
Administration (“MSHA”) had jurisdiction to issue the citations.

The
parties filed cross-motions for summary decision on the jurisdictional issue. The
Secretary asserted stand-alone jurisdiction over the trucks. The Judge rejected
that argument; however, the Judge found MSHA had jurisdiction over the facility
and, therefore, over the trucks while they were at the facility. 42 FMSHRC 221
(Mar. 2020) (ALJ). KC Transport appeals.

For
the reasons below, we reverse the Judge’s decision, grant KC Transport’s motion
for summary decision, and vacate the two citations. In doing so, we affirm the
finding that MSHA did not have jurisdiction over the cited trucks and reverse
the Judge’s finding of jurisdiction over the KC Transport facility.

I.

Factual and Procedural Background

Summary of
Uncontested Facts

KC
Transport is an independent trucking company that provides coal, earth, and
gravel hauling services to various businesses, including (but not limited to)
coal operators such as Ramaco Resources (“Ramaco”). Jt. Stips. 7, 8. KC
Transport operates maintenance and storage facilities at five locations,
including at Emmett, West Virginia (the “Emmett facility”). [2] The Emmett
facility is located on Right Hand Fork Road, approximately 1,000 feet from a
haulage road that serves Ramaco’s Elk Creek Prep Plant and other Ramaco mines. The
haulage road is partly public; there is a gate limiting access near the Elk
Creek Plant, beyond which Ramaco maintains the road. To reach the Emmett
facility, one must pass through the gate, travel up the haulage road, then turn
onto the public Right Hand Fork Road. The facility is over a mile from the prep
plant, with three mines approximately four to five miles distant and additional
mines about six miles remote. Jt. Stips. 9-12, 24-26.

KC
Transport operates approximately 35 trucks from the Emmett facility. These
trucks include off-road trucks that provide haulage for nearby mines and
on-road trucks that provide haulage services completely unrelated to mining. Approximately
60% of services from the facility are for Ramaco. The facility is not on mine
property, and Ramaco does not employ personnel or maintain equipment at KC
Transport’s facility. KC Transport shares the facility’s parking area with a
logging company. Jt. Stips. 13-15, 17, 20, 30. When the relevant citations were
issued, KC Transport had not yet built a maintenance shop at the facility, so KC
Transport used shipping containers and service trucks for maintenance needs. Jt.
Stip. 6. The area was, essentially, a parking lot with an open storage area.

The
relevant events occurred on March 11, 2019. An MSHA Inspector was searching for
trucks that he had cited while they were at Ramaco’s Elk Creek Prep Plant during
a recent inspection. He intended to terminate those citations. When he arrived at
the KC Transport facility’s parking area, he discovered ongoing maintenance
work on two trucks and issued the two new subject citations. Jt. Stips. 2-5. The
citations allege that the trucks were not blocked against motion while raised
for repair in violation of 30 C.F.R. § 77.404(c). [3] The trucks
were parked for maintenance at the KC Transport parking lot when cited. Jt.
Stips. 18, 19.

The
cited trucks are regularly inspected by MSHA when on-site at a Ramaco property
or along Ramaco’s haulage road, but MSHA had never inspected the Emmett
facility. Jt. Stip. 29. MSHA never sought to inspect the facility before March
11, 2019, and the inspector did not attempt to inspect any other vehicles at or
other parts of the facility that day. [4]

Procedural Background

The
parties filed cross-motions for summary decision before the Judge on the issue
of jurisdiction. Both parties relied upon the definition of “coal or other mine”
in Section 3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1). [5] The Secretary
argued that each truck independently constituted a “mine” under subsection
3(h)(1)(C) and was, therefore, subject to MSHA jurisdiction irrespective of its
location. KC Transport countered that the Mine Act only provides jurisdiction
over equipment in or appurtenant to a mine as defined in section 3(h)(1)(A) or
(B). Therefore, KC Transport claimed the facility was not a mine, and MSHA did
not have jurisdiction over the trucks while at the facility.

As
a preliminary matter, the Judge noted that the parties disagreed as to the
jurisdictional question at issue: the Secretary argued that each truck
independently constituted a mine, while the operator argued that the facility
was not a mine and, therefore, MSHA could not issue citations for the trucks
parked at it. 42 FMSHRC at 229-30. The Judge rejected both arguments, finding
that the Secretary’s approach would create “rolling mines” and lead to “absurd
results,” but that the facility fell “within the definition” of a mine. Id.
at 231, 237. The Judge ultimately found MSHA jurisdiction over the facility and
both trucks, concluding that the trucks were at the KC Transport maintenance facility,
which he found to be a “mine.” By implication, therefore, he found the trucks
were “mines” within subsection 3(h)(1)(C) only when located on a mine or
haulage road. He held that maintaining trucks to haul coal was integral to the
mining process. Therefore, both the facility and the trucks at the facility
were “used in” mining under section 3(h)(1)(C) of the Mine Act. Id. at
230-32, 237-38.

On
appeal, the parties reiterate their arguments. KC Transport claims the Judge
erred in finding jurisdiction over the trucks at the facility because only
equipment and facilities that are in or appurtenant to working mines (as
defined in section 3(h)(1)(A)) are subject to MSHA jurisdiction, and the
facility does not engage in coal extraction or preparation within the scope of
Subsection (A). The Secretary counters that the Commission must evaluate subsection
(C) independently and that the plain language of the definition covers the
trucks and facility because they are “used in” mining. [6]  

II.

Disposition

This case
comes before us in an unusual posture. Before the Judge’s decision, MSHA did
not assert or attempt to exercise jurisdiction over the KC Transport facility. Nor
did it do so after citing the trucks while they were at the facility. On
cross-motions for summary judgment on the truck citations, the Judge awarded MSHA
unasked-for jurisdiction over the facility. Before us, the Secretary vigorously
seeks to retain MSHA’s unrequested prize.

Vital
to this analysis is that KC Transport is an independent contractor and that no
mining activities or structures within the scope of subsection (A) occur at its
facility. Further, MSHA does not assert the KC Transport facility is on a road
or private way appurtenant to Ramaco’s operation. The Secretary asserts MSHA
jurisdiction over trucks and a facility owned by this independent contractor situated
on land where no mining is occurring. The Secretary’s effort must fail.

A. The
Secretary’s Arguments

The
Secretary principally argues that the definition of a “mine” is plain and that
we must apply a Chevron analysis. [7]
Under step one of the analysis ( Chevron I), if Congress has spoken in subsection
3(h) to the precise issue in dispute, the matter is ended, and we must accept
Congress’ directive. According to the Secretary, subsection 3(h)(1)(C) plainly
applies to all tools, equipment, machines, etc. actually used in or to be used
in mining regardless of whether they are on a mine site, a site appurtenant to
the mine site, or elsewhere. The Secretary would permit no further inquiry. Secondarily,
by footnote, the Secretary argues that if we do not apply Chevron I, we
must conduct an analysis under step two of Chevron ( Chevron II) and
defer to the Secretary’s construction. S. Resp. Br. at 8 n.3.

1. Plain Meaning

We
find no support for the Secretary’s proposition that the definition of a “mine”
in the Mine Act plainly applies to offsite, non-mining storage and repair
facilities or all tools, equipment, and machines located off a mine site that have
a use in mining. The Secretary would find tools and equipment to be mines
regardless of their location. Thus, as the Judge pointed out, a truck sitting in
a diner parking lot would be a “mine.” 42 FMSHRC at 231. If a miner used his own
hammer at work, it would be a “mine” even when located in his home workshop. The
Judge was correct that such a construction of the term “mine” would be absurd. If jurisdiction follows equipment as it
travels away from the mine, there is no point at which jurisdiction ceases.

The
Secretary invokes this “plain meaning” basis for jurisdiction over the trucks
because they were “used in” mining previously and most likely would be used in the
future. S. Resp. at 7-11; 42 FMSHRC at 230-32, 237-38. The Secretary argues for
jurisdiction over the independent KC Transport facility because it provides
offsite parking and repair for trucks used in mining. S. Resp. at 12-15. It is
a fixed location away from any mine site, and no mining occurs at the site. The
difficulty with the Secretary’s argument is that it seizes on the words “used
in” within the lengthy definition rather than undertaking any analysis of the
definition as a whole or its role in securing miners’ safety. Such focus
results in an absurd interpretation that certainly is not “plain.”

In rejecting the Secretary’s assertion under almost similar facts,
the U.S. Court of Appeals for the Sixth Circuit recently made the specific
finding that MSHA’s theory would create “no stopping point.” Maxxim Rebuild Co. LLC v. Federal Mine Safety and
Health Review Commission , 848 F.3d
737, 743 (6th Cir. 2017) . In fact, Maxxim
did not involve merely trucks or other tools; it involved a facility far more
closely related to mining than the KC Transport facility. The circuit court did
not accept the Secretary’s limitless definition of a mine.

In
reaching this conclusion, the circuit court essentially followed the same logic
as the Judge applied to the trucks (standing alone) in this case. The Secretary’s
grossly overbroad interpretation creates an absurdity, and avoidance of absurd
results in reviewing statutes is a “golden
rule of statutory interpretation.” 2A Sutherland Construction § 45.12 (7 th
ed.). The Commission
recognizes this principle. Sims Crane , 40 FMSHRC 301, 303 (Apr. 2018) (“[S]tatutes
and regulations should not be construed to produce an  absurd  result.”)

Beyond the absurdity of such unlimited inspection reach, we cannot
square the proposed interpretation that every tool, machine, etc., is a
separate and distinct “mine” regardless of location or current usage with a
resultant imposition of the Mine Act’s mandatory inspection requirements. Section
103(a) of the Act requires the Secretary to “ make inspections of each underground coal
or other mine in its entirety at least four times a year.” [8]
30 U.S.C.

§ 813(a). The duty to make such inspections is not optional; the Mine
Act mandates such inspections. Yet, we have not been made aware of any MSHA policy,
program, or procedures for inspecting warehouses, repair shops, storage areas,
and other facilities that are not on or at a mine site.

Separate from the absurdity of MSHA’s
construction, there is no merit to the Secretary’s proposition that the lengthy,
multi-tiered definition of a mine “plainly” applies to the offsite parking and
repair facility of an independent entity and trucks neither on a mine site nor
engaged in mining activity. It is not “plain” that Congress meant the
phrase “used in” to be taken in such a literal sense that tools on shelves of
independent supply stores would be deemed to be “mines.” [9]

Certainly,
a tool present in a mine remains within MSHA’s jurisdiction even though it is not
actively being used at a particular moment. It is there and readily available
for use in mining. However, when it is not at the mine, it cannot be engaged in
mining and it is not a “mine.”

Further,
as discussed below, the definition of a “mine” focuses on land areas where
mining is occurring, on private ways appurtenant to such lands, and on equipment
used to extract and prepare mined material. It is certainly not “plain” that
Mine Act jurisdiction applies to tools, equipment, machines, etc., not
on a mine site that at one time were used on the mine site, or that could
be brought to the mine site again.

Turning again to the Sixth Circuit’s
Maxxim decision, the circuit court addresses this precise point in
construing the definition of “mine” in the Mine Act. The circuit court states:

But co ntext and perspective are everything. In pulling back the lens, we
see several indications that the power of the Mine Safety and Health
Administration extends only to such facilities and equipment if they are in or
adjacent to—in essence part of—a working mine.

Maxxim ,
848 F.3d at 740. Thus, the Secretary’s interpretation of subsection 3(h) would
make the definition absurd. Further, the complexity of the definition and the
many factors we take into account below demonstrate that the definition of a “mine”
is not “plain.” The Secretary’s interpretation does not warrant Chevron I
regard.

2.
Chevron II/ Skidmore deference

Because
MSHA’s definition of a “mine” is absurd, we do not owe it deference. We could
proceed immediately to our interpretation. Nonetheless, we examine deference
under Chevron II [10]
and Skidmore [11]
standards.

Under
Chevron II, the
Commission reviews whether the Secretary’s interpretation of the Act is
reasonable. If so, the Commission must accept it, even if it differs from how
the Commission would have interpreted the statute in the absence of the
Secretary’s interpretation. Marfork Coal Company, Inc. , 29 FMSHRC 626,
630 (Aug. 2007). Separately, if the Commission decides an MSHA interpretation
does not warrant Chevron II deference, the Commission may afford the
interpretation a lesser degree of deference under the Skidmore standard . The American Coal Company , 38 FMSHRC 1972, 1979
n.9 (Aug. 2016). That standard is whether the Secretary’s interpretation is
persuasive.

In
this case, the Secretary’s position is a litigation position, rather than a
formal position taken after a demonstrated internal review or policy
consideration, let alone public notice and comment. Indeed, regarding
jurisdiction over the KC Transport facility, it is a position taken on appeal
and not expressed before the Judge. Only after the
Judge decreed unrequested jurisdiction did the Secretary assert jurisdiction
over the facility at the second stage of litigation.

Thus, the Secretary did not develop this
position by an objective standard found in MSHA’s rules or policy statements. Instead,
this is a matter of retaining an unasked-for litigation award. As a
late-blooming litigation tactic, the interpretation would receive only weak Skidmore
deference—namely, deference only to the extent it has the power to
persuade. Knox Creek Coal Corp. v. Secretary of Labor , 811 F.3d 148, 159-60
(4th Cir. 2016). [12]

In any event, given the guides identified and
discussed below, the Secretary’s proffered interpretation is neither reasonable
nor persuasive. We turn to the proper construction of section 3(h). In doing
so, w e employ the “traditional tools of statutory construction,”
including an examination of the statute’s text, legislative history, and
structure, as well as its purpose. See Chevron , 467 U.S. at 842-43.

B. MSHA does not have Jurisdiction Over KC Transport’s
Parking and Repair Facility or Trucks Parked at the Facility.

The purpose of the Mine Act is to protect
individuals performing work “ in the Nation’s coal or other mines .” See
generally 30 U.S.C. §
801
(emphasis added). The repeated references to conditions “in” coal or other
mines demonstrate that Congress was concerned with the health and safety of
miners as they engage in mining tasks . Necessarily, therefore, the Mine
Act addresses the full range of activities and instrumentalities used in
those mines. That focus differs substantially from defining a mine to include
all tools and equipment, regardless of use and wherever they are located.  

KC
Transport operates a trucking and repair facility that is neither in a mine nor
appurtenant to a mine. KC Transport is an independent entity unrelated to any
mining enterprise and supplies trucking services to mining and non-mining
customers. Jt. Stip. 39. Applying the proper construction tools, we find no
support for finding that KC Transport’s facility or trucks are “mines.” No
support exists in the language of the Mine Act’s predecessor statute (the Coal
Act), the legislative history of the Mine Act, the text of the Mine Act, important
precedential decisions of the United States Circuit Courts of Appeal for the
Sixth and Seventh Circuits, or common sense.

1.
The Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”)

The Coal
Act defined a “mine” by reference to activities conducted upon, under, or above
a land area that constituted a mining operation. The statute defined a coal
mine 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 in such area bituminous coal . . . and the work of
preparing the coal so extracted.

30 U.S.C. §
802(h) (1976) (emphasis added).

This
definition contains the conjunctive “and” linking two distinct aspects of a
coal mine. The first aspect covered “land” as it related to the extraction of
coal. This aspect covered “lands” where extractive mining, milling, or preparation
occurs. The conjunctive “and” then brought under the Coal Act real or personal property
used in mining on such lands. Most
importantly, the Coal Act applied to property “placed upon, under, or above the
surface of such land.” Id . (emphasis added). Thus, the coverage
reached and applied only to personal or real property related to extracting
coal in that land. This definition plainly does not reach beyond the land
and property used in or resulting from extracting or preparing coal.

2.
Legislative History of the Mine Act

In
passing the Mine Act some eight years later, Congress did not express any
intent to expand the jurisdiction of MSHA (the newly formed enforcement agency)
beyond the scope exercised by its predecessor the Mine Enforcement Safety Administration
(“MESA”) [13]
under the Coal Act. Thus, the Mine Act’s legislative history does not
demonstrate an intention to expand the geographical scope of MSHA jurisdiction
to lands or areas removed from the mine, such as independent contractor
maintenance facilities, or to facilities where mining equipment is stored,
repaired, or sold.

While
Congress modified the Coal Act’s definition of “mine” in the Mine Act, Congress
explicitly stated that it intended to clarify the scope of the
definition:

[T]he definition of ‘mine’ is clarified
to include the areas, both underground and on the surface, from which minerals
are extracted. . . . Also included 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 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.

S. Rep. No. 95-181, at 14 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety
and Health Act of 1977 , at 602 (1978) (“ Legis. Hist. ”)
(emphasis added).

The
updated definition simply “enumerated” types of facilities that were already
presumed to be subject to MSHA jurisdiction under the Coal Act. The definition
did not expand MSHA’s jurisdiction in any broad sense. Congress’ clarification to include these large structures of impoundments,
retention dams, and tailings ponds on a mining site
does not support expanding jurisdiction to mining equipment wherever it is located . [14]  

3.
The Mine Act Definition of a “Mine” and Related Terms

Section 3(h)(1) of the Mine Act
defines a “coal or other mine” in relevant part as:

(A) an area of land from which minerals
are extracted in nonliquid form or, if in liquid form, are extracted with
workers underground, (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 . . . 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.

30 U.S.C. § 802(h)(1).

As seen
in the plain language, all three subsections include a locational connection to
working mines. Subsection (A) covers relevant “area[s] of land from which
minerals are extracted,” while (B) includes ways and roads “appurtenant to such
area.” Subsection (C) then catalogs various mining-related places (e.g., lands,
underground passageways, retention dams, tailing ponds) and objects that serve
a mining-related purpose in such areas (i.e., structures, facilities,
equipment, machines, and tools used in mining). See Maxxim , 848
F.3d at 740-42.

Each
of these definitions relates to work in or at a mine. The definition of “mine” in
subsection (C) specifically refers to things “ on
the surface or underground .” 30 U.S.C.
§ 802(h)(1)(C). “[S]urface” and “underground” are terms of art in mining and
mining regulation. They are used to differentiate distinct areas of what is
generally understood to be a mine site in the normal sense. “Surface” and “underground”
do not suggest areas off the mine site. The use of “surface” does not mean the
drafters used it to corral in off-site areas.

Other
definitions in the Mine Act are similarly locational. 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.      § 802(d) (emphasis added). An
agent means “any person charged with responsibility
for the operation of all or a part of a coal or other mine or the
supervision of the miners in a coal or other mine .” 30 U.S.C. §
802(e). A miner is an “individual working in a
coal or other mine .” 30 U.S.C. § 802(g). Section 103(a) (related to
inspections) provides, “[a] uthorized
representatives of the  Secretary  or the  Secretary  of Health and Human Services shall
make frequent inspections and investigations in  coal or other mines . ” 30 U.S.C.
§ 813(a) (emphasis added). MSHA must thoroughly inspect
operations conducting mining, milling, and preparation activities and all
instruments and instrumentalities used in such operations. It is not required
to leave the mine site and track down tools, equipment, machines, trucks, and
other instruments when they are on a site unrelated to mining. Certainly, the
record in Maxxim, supra , demonstrates that MSHA does not fulfill its inspection
obligations by inspecting only two of seven identical facilities owned and
operated by subsidiaries of the same mining company.

In
statutes, words are known by the company they keep. Gustafson v. Alloyd Co.,
Inc. , 513 U.S. 561, 575 (1995) (“[A] word is known by the
company it keeps (the doctrine of  noscitur a sociis )”) . Just
as in the federal courts, the Commission applies this rule to avoid ascribing
to one word or phrase a meaning so broad that it is inconsistent with its
accompanying words, thus giving “unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co ., 367 U.S. 303, 307 (1961) .

In
context, the definition of a “mine” states—consistent with the surrounding
language, intent of the drafters, and purpose of the Mine Act—that MSHA
jurisdiction extends to lands used in mining and appurtenant roads, and equipment
and structures thereupon. The statute’s goal is to protect miners from hazards
found in mines or on appurtenant private ways. The Mine Act does not follow
equipment after its removal to facilities where mining does not occur, nor does
it apply to equipment before it has entered or after it has left a mine site
because operators could use the equipment for mining in the future.

Subsection
(B)’s coverage of appurtenant ways is clearly connected to lands covered by
Subsection (A). The small extension of jurisdiction specifically to cover “appurtenant”
roads is consistent with the larger protective purpose of the Act. Those areas
may expose individuals to mining-related hazards. For the reasons above, it is
clear that neither the purpose nor the language of the Act indicate a further
geographical extension of jurisdiction under subsection (C). Coverage over
appurtenant ways and roads under subsection (B) does not somehow imply coverage
over lands distant from a mine site, owned by an independent company, and used
for parking and repairing its vehicles. [15]

4. As an “Independent
   Contractor,” KC Transport is an “Operator” Only When “Performing Services at a Mine.”

“Operators”
fall into two categories, as noted above. An entity that does not own,
lease, operate, control, or supervise a coal or other mine is an “operator” only
when that entity, acting as an independent contractor, physically performs
services at a mine . 30 U.S.C. § 802(d).

When
KC Transport’s trucks are at its parking area off the mine site, the trucks are
not performing services at a mine, and KC Transport is not an “operator” for
the Act’s purposes. There is no reason to believe Congress envisioned MSHA
following independent contractors back to their home locations, or anywhere
else, away from the actual mine after their services.

Congress
expressly addressed independent contractors to ensure that all employees working
in a mine “are miners within the definition of the [Act].” S. Rep. No. 95-181 at 14; Legis. Hist. at

602. In other words, persons exposed to the same hazards as miners deserve the
     same protections granted to miners, regardless of their employer. United
     Energy Syncs. Inc. v. MSHA , 35 F.3d 971, 974-76 (4th Cir. 1994). Conversely,
     persons not working in a mine but who provide non-mining services off a mine site
     do not face mining hazards. Such workers do not require the Mine Act’s
     extra protection and may otherwise be appropriately protected by the Occupational
     Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ; Old Dominion
     Power Co. v. Donovan , 772 F2d 92, 95 (4th Cir. 1985). These jurisdictional
     concepts regarding independent contractors providing services at mines find
     expression in the Congressional intent and statutory purpose.

The
Secretary concedes that KC Transport is an independent contractor that provides
coal haulage services at Ramaco mines and the Elk Creek Plant as part of its
business activities. Jt. Stips. 7, 10, 11. It offers services to other non-mining
entities, as well. Jt. Stips. 7, 15. As an independent contractor, KC Transport
is an operator subject to MSHA jurisdiction while performing work at a mine
site.

Here,
the inspector cited trucks that were not performing services at a mine. They had
left the mine site where the trucks were “used in mining” and returned
to the separately and independently-owned Emmett facility for parking and
repair. Jt. Stips. 15-17. When the citations were issued, KC Transport was not performing
services in a mine. Jt. Stip. 19. Thus, it was not an operator under section
3(d), further confirming that the Secretary did not have jurisdiction to issue
the relevant citations. [16]

KC
Transport used its Emmett facility for its independent contract trucking
business that served both coal and non-coal customers. There is no evidence
that Ramaco or any other coal operator used the facility for any mining
functions or activities that might cause it to be considered a mining facility.
See Harman Mining Corp. v FMSHRC , 671 F.2d 794 (4 th Cir. 1981).

5.
Important Federal Circuit Court decisions in Ziegler Coal
and Maxxim Rebuild
Co. Demonstrate that KC Transport’s Facility is not a “Mine.”

Federal circuit courts have accepted these underlying jurisdictional
precepts for more than 30 years. In
Dep’t of Labor v. Ziegler Coal Co .,
853 F.2d 529, 533-34 (7th Cir. 1988), the Seventh Circuit noted the “geographical
component” of the situs of a facility:

The statutory
definition of a coal mine plainly contemplates that the facilities used in the
work of extracting coal must be located on or below the area of land where
the coal is extracted , milled, or prepared. Section 802(h) speaks in terms
of “an area of land” and facilities “placed upon . . . the surface of such land”
used “in the work of extracting in such area [coal] . . . from its natural
deposits.”

Id. (emphasis
added).

Ziegler
involved a repair shop located approximately one and
one-half miles away from the nearest Ziegler mine. Id. at 531. The court
recognized that the Mine Act’s legislative history contains a generous
construction of the term “coal mine” but specifically noted that “this does not
justify disregarding the statutory language which speaks in terms of the
area in which coal is being extracted.” Id. at 534 (emphasis
added) . The shop dealt only with equipment used in mining, but the court recognized that it was
“one-step removed from those facilities used to perform work directly on the
extracted coal.” Id. at 536. The court went on to recognize “that a
repair shop might be essential to an efficient mining operation, but this alone
is insufficient to satisfy [section] 802(i).” Id.

Even
more importantly, the U.S. Court of Appeals for the Sixth Circuit directly addressed
circumstances nearly identical to this case in the previously cited Maxxim
case . The Commission had applied a prior
Commission case, Jim Walter Res., Inc. , 22 FMSHRC 21 (Jan. 2000),
to affirm a finding that MSHA had jurisdiction over a
maintenance shop that repaired, rebuilt, and fabricated mining equipment and
parts for mining equipment. Maxxim
Rebuild Co. v. FMSHRC , 38 FMSHRC
605 (Apr. 2016).

The
facts in Maxxim were considerably more robust than the facts presented
in this case. The shop operator (Maxxim) was a wholly-owned subsidiary of a
mining company (Alpha Natural Resources) rather than a wholly independent
business. The shop’s location was on property owned by Sidney Coal
Company, a sister company to Maxxim and a mining subsidiary of Alpha Natural
Resources. Id. at 607. Maxxim’s employees regularly went to the mining
operation to com plete boreholes to accommodate blasting equipment furnished by Maxxim. Id .
 The Commission found the work by Maxxim made the shop a “mine” though not
located on an actual mining site.

The Sixth Circuit unanimously reversed the
Commission. [17] In doing so, the circuit court emphasized the need for
context and perspective. Looking at the case from the standpoint of protecting
miners from mining hazards, the circuit court found jurisdiction extended to facilities and equipment if they are in
or adjacent to—in essence, part of—a working mine. Again, this finding applied
to a wholly-owned subsidiary of a mining company with a related company for
which Maxxim supplied services engaged in active mining.

Quoting the
Mine Act definitions cited above, as well as the definitions in Title IV of the
Mine Act, the circuit court found these provisions teach:

[A] lesson taught many times before. “A provision that may
seem ambiguous in isolation is often clarified by the remainder of the
statutory scheme [ ] because the same terminology is used elsewhere in a
context that makes its meaning clear or because only one of the permissible
meanings produces a substantive effect that is compatible with the rest of the
law.”

Id. at 742 (citation omitted).

Going further, the circuit court
considered the irrational practical implications of finding jurisdiction,
including the common sense points raised below. Thus, the Sixth Circuit squarely
held that MSHA did not have jurisdiction over the Maxxim facility, a repair
shop more closely related to actual mining activities than the Emmett facility
of KC Transport.

Finally, the circuit court noted
that the Commission relied upon its finding of jurisdiction in Jim Walter
Resources, supra. The court found that Jim Walter was decided
incorrectly, stating:

Far better, it seems to us, to stand by the text and
context of § 802(h)(1) , which
limit the agency’s jurisdiction to locations and equipment that are part of or adjacent to extraction, milling, and preparation
sites.

Id. at 744.

We
are in accord with and fully accept the circuit court’s analysis. Not only as a
matter of authority, but because it aligns with the positions identified above following
from the Coal Act, the Mine Act’s legislative history, definitions in the Mine
Act, and KC Transport’s independent contractor status, as well as common sense as
discussed below. We
recognize that our decision today departs from the Jim Walter approach
and certain prior Commission cases. [18]
Our holding is that an independent repair, maintenance, or parking facility not
located on or appurtenant to a mine site and not engaged in any extraction,
milling, preparation, or other activities within the scope of subsection 3(h)(1)(A)
is not a mine within the meaning of section 3(h) of the Mine Act. We further
hold that tools, equipment, and the like not on a mine site or any appurtenance
thereto and not engaged in any extraction, milling, preparation or other
activities within the scope of subsection 3(h)(A) are not mines within the
scope of subsection 3(h) of the Mine Act. Today’s decision is consistent with
the history, language, statutory framework, legislative intent, and two
well-considered federal circuit court of appeals decisions.

6. Common Sense

Finally, we are well-advised to follow the Sixth
Circuit’s path and take an overall view of the business in which KC Transport
is engaged and the illogical consequences of accepting the Secretary’s
construction of the Mine Act. KC Transport is an independent commercial
trucking firm. It provides trucking services to different types of customers
and stays in business by carrying different materials. In short, it is engaged
in commercial trucking like thousands of other commercial trucking firms. When
its trucks are in a mine providing services, they must conform to MSHA
standards. Therefore, any assertion that denying jurisdiction over trucks at
the KC Transport facility means that they could enter a mine and engage in
extraction related work, without complying with MSHA’s requirements, is without
merit. [19]

The jurisdictional standard we describe is
consistent with a common sense understanding of the Mine Act’s purpose, namely protecting
miners from hazards associated with mining . See 30 U.S.C. § 801. Common
sense dictates that jurisdiction should not attach in situations, such as here,
where no such risks particular to a mine exist at an independent parking area
and garage removed from a mine site. No stipulation suggests that repair work
at the Emmett facility is different, in any respect, from the same type of work
performed on tens of thousands of trucks throughout the nation at other
facilities or, indeed, on any other KC Transport truck that hauls material
other than coal. The record shows no difference in activities at the Emmett
facility between contractor trucks hauling coal and contractor trucks moving non-coal
materials.

As explained in Maxxim , supra , Congress
tailored the Mine Act to protect against dangers that arise from handling coal
and other minerals, not generic risks associated with making or repairing
equipment. 848 F.3d at 743; see also United Energy Svcs. Inc. v. MSHA ,
35 F3d 971, 975 (4th Cir. 1994) (emphasizing that employees deserve the same
protections as miners if they are subject to the same risks). Jurisdiction
over an independent and offsite truck repair facility, not exposing
employees to any hazards associated with the mining
process, does not serve the Mine Act’s purpose. [20]

A manufacturing plant is not a mine because it
manufactures equipment for use in mining and an electrical utility plant is not
a mine only because it uses coal. Id. at 743; Herman v. Assoc.
Elec. Coop. , 172 F.3d 1078, 1082-83 (8th Cir. 1999); see also Bush
& Burchett Inc v. Reich , 117 F.3d 932 (6th Cir. 1997). If jurisdiction follows each piece of equipment, regardless
of its travel away from the mine, then, as the Sixth Circuit said, there would
be no stopping point. Id. at 744. Such an unbounded jurisdictional approach
clearly leads to absurd results. A supervisor’s
pickup truck used at the mine for mining purposes would be subject to MSHA regulations—but
not in the supervisor’s garage at home.

The
jurisdictional principles announced here apply equally to the attempt to
exercise jurisdiction over the KC Transport facility and the trucks parked
there. [21]
The KC Transport facility is only one of the hundreds of facilities that
manufacture, store, or repair the vast amount of equipment used in mines. Thus,
w e share the opinion and observations of the Sixth Circuit
in Maxxim regarding attaching MSHA jurisdiction to any
facility or any piece of equipment with some connection to mining, regardless
of whether that connection exposes employees to relevant mining hazards.

IV.

Conclusion

For
the preceding reasons, we find that the Secretary did not have jurisdiction to
issue

Citation Nos. 9222038
and 9222040 involving trucks parked at KC Transport’s Emmett Facility. Accordingly,
we reverse the Judge’s decision, grant KC Transport’s Motion for Summary
Decision, and vacate the citations.

/s/
William I. Althen

William
I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Commissioner

Chair
Traynor, dissenting:

The
question on review is whether an inspector from the Secretary of Labor’s Mine
Safety and Health Administration (“MSHA”) had jurisdiction to issue citations
to KC Transport, Inc., when he observed its employees violate a mandatory
safety standard while repairing coal haul trucks at KC Transport’s parking lot.
As I will demonstrate, Congress has directly spoken to the issue; the Mine Act
plainly states that “equipment . . . used in, or to be used in” mining
processes are subject to the provisions of the Mine Act. 30 U.S.C. §
802(h)(1)(C).

A.
Factual Summary

On
March 11, 2019, MSHA Inspector John M. Smith traveled down a public road in
Logan County, West Virginia and arrived at a manned-gate controlled by Ramaco
Resources. The gate marked the point where the public road became Ramaco’s
private mine haul road. Only authorized personnel are permitted access to the
mine road, which connects five coal mines (three deep mines, one strip mine and
a highwall mine) with the Elk Creek Preparation Plant. The road, mines, and preparation plant are
all owned and operated by Ramaco and subject to the provisions of the Mine Act.

Inspector
Smith first traveled to the Elk Creek Plant. From the plant, Inspector Smith
traveled about a mile down the haul road to KC Transport’s parking lot. KC
Transport is an independent contractor that provides haulage services at these
Ramaco mine properties. [22]
KC Transport’s off-road trucks regularly haul coal from the five mines, over
the haul road and to the Elk Creek Plant. The off-road trucks were not licensed
to travel on-road at the time of the inspection and, therefore, were operated
exclusively at Ramaco’s mine complex. On this day, Inspector Smith was
following-up on citations that had been previously issued to KC Transport’s
trucks during a MSHA inspection of a Ramaco mine.  

KC
Transport parks and maintains its trucks at a sand and gravel parking lot built
on land controlled by Ramaco. The lot is separated from the haul road by an
approximately 1000-foot side road. At the time of the inspection, KC Transport
was in the process of constructing a maintenance facility next to the parking
lot and was using two shipping containers and two service trucks to conduct
repairs. [23]
 KC Transport shares the lot with a logging company.

In
addition to the off-road trucks, KC Transport also operates on-road trucks out
of this facility providing services for other customers. This was the first
time that MSHA issued a citation for conduct that occurred at this
newly-constructed parking lot. [24]
However, MSHA regularly inspects the same exact trucks when operated at
Ramaco’s mines and on its roads.

On
March 11, 2019, during his visit to the parking lot, Inspector Smith observed
two Mack haul trucks undergoing repairs. The trucks were not blocked against
motion as required by the mandatory safety standard at 30 C.F.R. § 77.404(c). Accordingly,
Inspector Smith issued two citations to KC Transport. Inspector Smith also
issued an imminent danger order pursuant to section 107(a) of the Mine Act
because a person was standing underneath the raised unblocked bed of one truck,
a serious hazard that could result in a fatal injury. The issuance of the
imminent danger order authorized the inspector to withdraw the individual from
danger. The order is not at issue in this case.

The
parties filed cross motions for summary decision with the Judge. KC Transport
agreed to accept the two citations as issued if the Judge found that MSHA had
properly asserted jurisdiction. Commission Procedural Rule 67, 29 C.F.R. §
2700.67, authorizes a Judge to grant summary decision if the entire record
shows there is no genuine issue of material fact and the moving party is
entitled to summary decision as a matter of law. KC Transport argued that MSHA
lacked jurisdiction to issue the citations because the repairs were being
performed at a facility that was not a “mine.” The Secretary argued that MSHA
has jurisdiction to enforce safety standards governing equipment “used in”
mining.

The
Judge granted the Secretary’s motion for summary judgement, finding MSHA
jurisdiction over the trucks as well as the parking lot facility.

B.
Analysis

On
review, KC Transport argues that section 3(h)(1)(C) of the Mine Act only covers
equipment connected to “mines” as specified in sections 3(h)(1)(A) and (B). The
Secretary maintains that section 3(h)(1)(C) covers equipment that is “used in”
mining irrespective of its location. The Commission reviews a Judge’s decision
to grant summary decision de novo .     M-Class Mining, LLC , 41
FMSHRC 579, 582 (Sept. 2019) (citations omitted).

The
Mine Act provides that “[e]ach 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 Act.” 30 U.S.C.   § 803. Section 3(h)(1) of the Mine Act
defines a “coal or other mine” in relevant part as:

(A) An area of land from which minerals
are extracted in nonliquid form or, if in liquid form, are extracted with
workers underground, (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 . . . 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.

30 U.S.C. § 802(h)(1).

Under
the plain language of the Mine Act, the Mack coal haul trucks are “equipment .
. . used in, or to be used in” “extracting” and “preparing coal” and thus I
would find that the citations were properly issued. Chevron U.S.A. Inc. v.
National Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984)
(Under step one of Chevron , we ask “whether Congress has directly spoken
to the precise question at issue. If the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.”).

In
the legislative history of the Act, Congress made it clear “that what is
considered to be a mine and to be regulated under this Act be given the broadest
possibl[e] interpretation .” S. Rep. No. 95-181, at 14 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 602 (1978) (“Legis. Hist”)
(emphasis added). [25]
Congress further stated that “doubts [shall] be resolved in favor of inclusion
of a facility within the coverage of the Act.” Id . Accordingly, the
Commission has consistently construed section 3(h)(1) broadly in favor of Mine
Act coverage and recognized that “jurisdictional doubts [shall] be resolved in
favor of coverage by the Mine Act.” Calmat Company of Arizona, 27 FMSHRC
617, 624 (Sept. 2005) (holding that the cited haul trucks “were clearly related
to mining operations and within MSHA’s jurisdiction.”).  

In
fact, the Commission has repeatedly held that pursuant to section 3(h)(1)(C),
“equipment” that is “used in, or to be used in” mining is subject to the
provisions of the Mine Act, even when located at a place that is not a
“mine” pursuant to sections 3(h)(1)(A) and (B). [26] See W.J.
Bokus Industries, Inc ., 16 FMSHRC 704, 708 (Apr. 1994); see also State
of AK Dep’t of Transp. , 36 FMSHRC 2642, 2647-48 (Oct. 2014) (holding that
equipment used to extract material is subject to the provisions of the Mine Act
and noting that lack of jurisdiction over a public road under subsection (B)
does not foreclose jurisdiction over operations on that road under (A) or (C)).
That is because under section 3(h)(1)(C) whether a particular piece of
equipment is subject to the provisions of the Mine Act is primarily resolved by
examining the equipment’s function (not its location or ownership). [27]

In
W.J. Bokus , the Commission held that “[u]nder section 3(h)(1), the
Secretary need only establish that the items in issue were used or to
be used in mining .” 16 FMSHRC at 708 (emphasis
added). Bokus Industries operated a sand and gravel mine on a portion of
its property. An asphalt plant was also located on the property. Bokus had an
arrangement by which it leased the asphalt plant to another company. Bokus also
leased a garage, located adjacent to the asphalt plant, to the asphalt company.
Under the terms of the lease, both Bokus Industries and the asphalt company
could jointly use the garage. On review, the Commission held that it was not
necessary to determine whether the garage was a “mine,” because the evidence
established that the cited pieces of equipment in the garage “ were used or to be used in mining .” Id . at 708. In
so holding, the Commission relied upon the function of the cited equipment. [28]  

In Jim
Walter Res, Inc ., 22 FMSHRC 21 (Jan. 2000), the Commission reaffirmed that
“whether a mine operator’s equipment is covered by the Mine Act is not
determined by its location but rather by its function —that is, whether it
is used in extracting or preparing coal.” Id . at 27 n.11 (emphasis
added). The Commission held that the supply shop at issue and its contents were
subject to the provisions of the Mine Act because the “facilit[y]” was a “mine”
and because it held “equipment . . . used in or to be used in” mining. Id .
at 25.

My
colleagues rely on the anomalous Sixth Circuit opinion in Maxxim Rebuild ,
848 F.3d 737 (6th Cir. 2017), for their finding that these haul trucks were not
subject to MSHA jurisdiction at the time the citations were issued. [29] My
colleagues are wrong. Even under the narrow interpretation of section 3(h)(1)
articulated in Maxxim , the citations and the Judge’s decision should be
affirmed. [30]

Maxxim
concerned a repair shop that mostly serviced mining equipment for Alpha Natural
Resources—a large coal producer and Maxxim’s parent company. Id . at 739.
The shop also included a warehouse which stored at least one piece of equipment
for Alpha. The Commission affirmed that MSHA properly asserted jurisdiction
over the shop. [31]
The Sixth Circuit reversed, holding that section 3(h)(1) of the Mine Act
limited the agency’s jurisdiction “to locations and equipment that are part of
or adjacent to extraction, milling, and preparation sites.” Id . at 744. The
Sixth Circuit stated that the Mine Act does not govern “‘machines, tools, or
other property” wherever they may be found or made. Id . at 740. Instead,
“equipment” covered by subsection (C) “ must be connected to a working
mine.” Id . at 741 (emphasis added). The Sixth Circuit stated that section
3(h)(1) (A), (B), and (C) “are place connected, and place driven.” The court
ultimately held that the shop at issue “was not attached to or adjacent to a
working mine,” instead it was “one-step removed from” a “mine” and that “it
makes no difference that Alpha’s mines may one day use the shop’s fabricated or
repaired equipment” to extract coal. Id . at 742-43.  

The
facts of the case currently before the Commission are readily distinguishable
from the facts in Maxxim . First, let’s consider the location. The
parking lot is not “one-step removed” from a mine site. Instead, it sits on a
large tract of land that contains five working mines and a coal prep plant. Furthermore,
it is adjacent to an active mine haul road (about 1000 feet away) which
connects five mines and a preparation plant. Each of these entities, including
the mine haul road, are a “mine.” 30 U.S.C. § 803(h)(1)(B) (“private ways and
roads appurtenant to such area”). Moreover, one cannot access the parking lot
without first traveling through a manned gate controlled by the mine operator.

Second,
and more importantly, let’s consider direct evidence of the trucks’ function. The
two trucks are each “connected to a working mine” because the parties
stipulated that each was “regularly used to haul coal from the five Ramaco
mines to the Elk Creek prep plant” and are regularly inspected by MSHA. Jt.
Stips. 18, 29. These stipulations are dispositive evidence of the trucks’
function. In addition, the trucks were parked and undergoing maintenance work
previously mandated by MSHA at the time these citations were issued. The
repairs were necessary so that the trucks could continue hauling coal for
Ramaco. These particular trucks were not licensed to travel over public roads
at the time the citations were issued and thus could only be operated on
Ramaco’s property. Jt. Stip. 27. Accordingly, both trucks were obviously
connected to a working mine. Even under Maxxim , the Secretary rightfully
asserted Mine Act jurisdiction.  

In
summary, substantial evidence supports the Judge’s finding that the coal haul
trucks are “equipment” “used in” mining as defined at 30 U.S.C. § 802(h)(1). Furthermore,
the Secretary demonstrated that the trucks are essential and integral to mining
operations. The location of the parking lot, adjacent to the mine haul road,
provides additional evidence of the trucks’ function. [32]  The Judge’s
finding of jurisdiction should be affirmed. Insofar as the Judge believed he
had to address the jurisdiction over the facility to affirm jurisdiction over
the trucks, he was in error. [33]

C.
The Result of the Majority’s Ruling

The
majority’s decision will result in decreased enforcement of safety standards
governing the maintenance and operation of mining equipment at off-site
facilities or on-site separate facilities. As a result, those workplaces will
become more dangerous. 

Powered
haulage accounts for a large percentage of the fatal injuries in mining. In
2017, 50% of fatal injuries at mines involved powered haulage. [34] Haul trucks
in particular present a variety of safety hazards. Two of the fatal injuries in 2017 occurred when a 340-ton
haul truck collided with a passenger van at a mine site. [35]

More recently, from October 1 to December
13, 2021, five of the ten total fatal injuries at mines involved powered
haulage. [36] In an attempt to
better address those hazards, MSHA recently issued a notice of proposed
rule-making to require mine operators to develop and implement powered haulage
safety programs. Safety Program for Surface Mobile Equipment , 86 Fed.
Reg. 50496 (Sept. 9, 2021). Apparently, as a result of the majority’s decision,
KC Transport will not be required to comply with this particular MSHA rule
while maintaining trucks at its parking lot.

Of course, injuries can also occur during
the maintenance of haul trucks. Recently, a mechanic was fatally injured
when a haul truck bed collapsed on him while he was working on the truck. [37] The citation
and imminent danger order issued to KC Transport on March 11, 2019, cite eerily
similar facts. Inspector Smith observed a miner standing underneath the truck
bed while it was in a raised position, without having been blocked to prevent
motion. According to my colleagues’ ruling, MSHA inspectors are not permitted
to issue an order to stop work if they observe a similar dangerous occurrence
in the future. 

However,
the complete implications of their ruling remain unclear. In fact, it gives
rise to a number of questions. For instance, suppose an MSHA inspector stops a
truck at a Ramaco mine. The inspector discovers that the KC Transport driver
conducted an inadequate pre-shift examination earlier in the day. [38] If the
pre-shift examination occurred at the parking lot, can MSHA issue a citation? Suppose
the truck is later involved in a fatal accident at a mine. Are MSHA’s accident
investigators permitted to consider whether improper maintenance at the parking
lot was a contributing factor? Or perhaps an MSHA inspector observes a haul
truck driving on the mine road with an obvious equipment defect. The inspector
follows the truck to the parking lot. Does the truck’s presence at the lot
prevent the MSHA inspector from issuing a citation for a defect that he
observed at the mine road?

These
questions and confusion demonstrate the absurdity of my colleagues’
interpretation. Impeding MSHA’s ability to prevent and investigate accidents
that involve coal haul trucks frustrates Congress’s goals in passing the Mine
Act. 30 U.S.C. § 801(c) (“[H]ere is an urgent need to provide more effective
means and measures for improving the working conditions and practices in the
Nation’s coal or other mines in order to prevent death and serious physical
harm”). Haul truck accidents lead to fatal injuries.

Instead
of permitting MSHA to ensure that mining equipment complies with minimum
mandatory safety standards, my colleagues issue a decision that designates an
area an “MSHA free zone.” I am concerned that their decision will become a
how-to-guide, used by the most cynical mine operators to avoid regulations.

My
colleagues contend that the trucks at the parking lot are subject to the
provisions of the Occupational Safety and Health Act, 29 U.S.C. § 651, and thus
safety will not be compromised. They fail to acknowledge that the Occupational
Safety and Health Administration (“OSHA”) does not have the budget or the
man-power to inspect even a fraction of the workplaces currently in its
jurisdiction.  

OSHA
ended fiscal year 2021 with only 750 inspectors, the lowest number of
inspectors in the 51-year history of the agency. [39] With similar
staffing levels it would take 165 years for OSHA inspectors to visit every
workplace in its jurisdiction once. [40]
In contrast, the Mine Act requires MSHA to inspect each surface mine at least
two times a year and each underground mine at least four times a year. 30
U.S.C. § 813(a). MSHA inspectors will continue to regularly visit Ramaco’s
mining complex, however, OSHA inspectors will rarely, if ever, be on the
premises. [41]  

Accordingly,
miner safety would be best promoted if equipment “used in” mining was inspected
by MSHA inspectors, as Congress intended. Thus, I dissent.

/s/
Arthur R. Traynor, III

Arthur
R. Traynor, III, Chair

Distribution:

Christopher D.
Pence, Esq.

Hardy Pence
PLLC

10 Hale Street,
4th Floor (25301)

P.O. Box 2548

Charleston, WV
25329

[email protected]

James P.
McHugh, Esq.

Hardy Pence
PLLC

10 Hale Street,
4th Floor (25301)

P.O. Box 2548

Charleston, WV
25329

[email protected]

Robert S.
Wilson, Esquire

U.S. Department
of Labor, Office of the Solicitor

201 12th Street
South

Arlington, VA
22202-5450

[email protected]

Stephen S.
Adkins

Conference
Litigation Representative

U.S. Department
of Labor

Mine Safety and
Health Administration

4499
Appalachian Highway

Pineville, WV
24874

[email protected]

John M. McCracken,
Esq.

Office of the
Solicitor

U.S. Department
of Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Emily Toler
Scott

Senior Trial
Attorney

Office of the
Solicitor

U.S. Department
of Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

April Nelson,
Esq.

Office of the
Solicitor

U.S. Department
of Labor

Mine Safety and
Health Division

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Melanie Garris

U.S. Department
of Labor

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

201 12th Street
South, Suite 401

Arlington, VA
22202-5452

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal Mine
Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington, DC
20004-1710

[email protected]

Administrative
Law Judge John Lewis

Federal Mine
Safety Health Review Commission

875 Green Tree
Road,

7 Parkway
Center, Suite 290

Pittsburgh, PA
15220

[email protected]

[1] A settlement regarding 18 of the 20 citations in this
docket was approved by the Judge below on December 19, 2019. The two remaining
citations, Nos. 9222038 and 9222040, both allege violations of 30 C.F.R. §
77.404(c) (“Repairs or maintenance shall not be performed on machinery until
the power is off and the machinery is blocked against motion.”). If MSHA is
found to have jurisdiction, the parties stipulated the facts of the violations
and reached an agreement concerning gravity, negligence, and appropriate
penalty amounts. Jt. Stips. 39-42.

[2] The parties’ stipulations did not provide any facts
regarding the other locations.

[3] Section 77.404(c) provides, “ [r]epairs or maintenance shall not be performed on machinery
until the power is off and the machinery is blocked against motion, except
where machinery motion is necessary to make adjustments.”

[4] The parties
stipulated that eleven months earlier, on April 3, 2018, MSHA issued two
citations to KC Transport at a muddy
parking area that KC Transport then had adjacent to where the haulage road intersects Right Hand Fork Road. MSHA later vacated those
citations. Sometime between April 2018 and March 2019, KC Transport constructed
its new facility 1,000 feet away from the Right Hand Fork Road's
haulage road. Jt. Stips. 21-23. MSHA knew of the new location as demonstrated
by the inspector going to the facility. However, MSHA did not attempt to
inspect the facility or trucks located at it until April 2019. Having traveled
to the facility for a different purpose than inspecting, the inspector issued
the citations in dispute.

[5] Section
3(h)(1) of the Act defines a “mine” as:

(A) an area of land from which minerals
are extracted . . . (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
. . . used in, or to be used in, or resulting from, the work of extracting such
minerals . . . 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.  

30 U.S.C. § 802(h)(1).

[6] KC Transport contends that the Judge erred in even
addressing MSHA’s jurisdiction over the facility. Noting that the Secretary had
not sought such jurisdiction, the company claims the Judge should not have
reached an issue for which there was no live case or controversy. As we are
reversing the Judge’s finding of jurisdiction over the facility, we need not
address this argument in depth. However, we note that it was necessary to
discuss the facility’s jurisdictional status under KC Transport’s rationale. The
company asserted that the trucks were not subject to MSHA jurisdiction because
the facility was not a mine. Mot. for Sum. Dec. at 1, 6.

[7] Chevron USA Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-43 (1984).

[8] We explain below that section 103(a) requires “ frequent
inspections and investigations in coal or other mines each year.” The use of the
word “in” further emphasizes the locational aspect to mines for jurisdictional
purposes.

[9] As Judge Learned
Hand wisely opined, “there is no surer way to misread any document that to read
it literally.” Guiseppi v.
Wallin g, 144 F.2d 608, 623, 624 (2d Cir. 1944) (J. Hand, concurring).

[10] Chevron , 467 U.S. at 842-43.

[11] Skidmore v.
Swift & Co. , 323 U.S. 134 ,
140 (1944).

[12] We recognize, of course, that in other cases the
Secretary has also asserted jurisdiction over off-site facilities. We find no
record of a thoughtful policy-driven basis for such claims. Indeed, in the Maxxim
case, the respondent, Maxxim, was a wholly-owned subsidiary of a mining
company. Maxxim operated seven shops. Five were inspected by the Occupational
Safety and Health Administration and two, including the subject shop, were inspected
by MSHA. The Secretary did not explain any logic or legal reason for such
differences. Further, as here, the Secretary did not provide evidence that MSHA
had developed any consistent policy for the exercise of jurisdiction over
off-site facilities. In this case, MSHA certainly knew of the existence and
location of the facility but did not seek to exercise any jurisdiction or
perform any statutorily required inspections until after an inspector went to
the site and impulsively issued citations for two trucks. Even then, MSHA did
not assert jurisdiction over the facility. The actions of MSHA regarding such
facilities and off-site equipment demonstrate only a pattern of random,
sporadic action rather than implementation of a thoughtful policy.

[13] MESA was an agency within the Department of the
Interior. The Mine Act created MSHA and moved mine safety enforcement to the
new agency within the Department of Labor.

[14] While the legislative history concludes with the
statement that “doubts” regarding
jurisdiction should “be resolved in favor of inclusion of a facility within the
coverage of the Act, ” MSHA cannot
create jurisdiction by wrongly asserting jurisdiction and then arguing that
there exists a “doubt” about it. In this case, MSHA either did not think it had
jurisdiction over the Emmett facility or at least did not act on such a thought
or seek jurisdiction over the facility until after the Judge’s decision.

[15]
The Secretary cites  State of AK Dep't of
Transp. , 36 FMSHRC 2642, 2647-48 (Oct. 2014). There, the Commission
considered an argument that equipment used along a public road to extract sand
and gravel could not be a “mine” because it was not a “private way or road
appurtenant” to an area of extraction. The Commission quickly dismissed that
argument, finding the activity on that road constituted both extraction
(mining) and milling. Therefore, the activity fell squarely under subsection
(A) as land upon which mining and milling occurred. In turn, the activities
fell under subsection (C) because the equipment’s use was on land where mining
was occurring. The case provides no support for the proposition that MSHA has
jurisdiction over lands that are not appurtenant to a mine site and where no
mining activities occur.

[16] We note that MSHA stated on the citations that the
violations occurred at the Elk Creek Plant, despite the fact that the citations
were issued in an area that was not on Ramaco property. See Citation Nos. 9222038 and 9222040. We view this as indicating MSHA’s belief—which is
borne out both in its standard inspection regimen and its citation form—that
its exercise of jurisdiction over a contractor is necessarily contingent upon
the contractor’s activities occurring at a site within Mine Act jurisdiction.

[17] We do not hold that we are required to find t he Seventh Circuit’s decision in Ziegler
or the Sixth
Circuit’s decision in Maxxim binding upon us for a case arising in the
Fourth Circuit. Nevertheless, we recognize both as superior authorities. See
Westmoreland Coal Co ., 11 FMSHRC 960, 964 (June 1989); Ray, emp. by Leo
Journagan Constr. Co. Inc ., 20 FMSHRC 1014, 1025 (Sept 1998) . As
discussed herein, we find that both circuit courts’ reasoning is consistent
with the plain text, larger statutory context, and purpose of the Mine Act. We are
in full accord with these decisions. For that reason, we write in agreement
with, and rely upon, both decisions.

[18] W.J. Bokus Indus. Inc. , 16 FMSHRC 704, 708 (Apr.
1994); US Steel Mining Co. Inc. , 10 FMSHRC 146 (Feb. 1988).

[19] Our
dissenting colleague asserts the majority approach would compromise safety by
impeding the inspector’s ability to issue citations. MSHA knew of the facility
but never asserted a right to inspect the facility. Even then, MSHA only sought
jurisdiction over the trucks. Indeed, MSHA went there to vacate citations
issued on the trucks while on the mine site . If an inspector finds a
pre-shift violation while examining a contractor’s truck on the mine site, he
may and will cite it, and similarly, an inspector can and should cite any
equipment defect he sees on the mine site. See, e.g., Ames Construction Inc. ,
33 FMSHRC 1607, 1611 (July 2011), aff’d 676 F.3d 1109 (D.C. Cir. 2012)
(where independent contractor was performing services at a mine and was
therefore an operator under the Act, contractor can be found strictly liable
for a violation of a mandatory standard occurring at the mine). At no point is
a truck allowed on the mine with a mine safety violation. Thus, the same
vigorous safety enforcement applies.

[20] By no means is safety ignored in this situation.
Where Mine Act jurisdiction does not apply,
other jurisdictional oversight does, such as the Occupational Safety and Health
Act of 1970, 29 U.S.C. § 651 et seq. ,
or additional state safety or transportation enforcement agencies. Nothing in
the record casts doubt upon their enforcement capabilities.

[21] In reversing
the Judge’s finding of jurisdiction over the facility, we note the Judge’s correct
rejection of the Secretary’s “rolling mines” theory of jurisdiction over the
trucks as stand-alone pieces of equipment at a parking/repair facility. 42
FMSHRC at 231.  

[22]
KC Transport operates truck maintenance and
storage facilities at five different locations. The Emmett, West Virginia
facility at issue contained approximately 35 trucks, including both off-road
trucks and on-road trucks.

[23]
On the day Inspector Smith issued these
citations he did not attempt to inspect the shipping containers, service trucks
or any other trucks located at KC Transport’s facility.

[24]
In April 2018, MSHA visited a different KC
Transport parking lot. MSHA issued citations that were later vacated. After
those citations were issued, KC Transport constructed the subject sand and
gravel parking lot, in an area that was further from the mine haul road than
its previous lot.

[25]
Indeed, in Marshall v. Stoudt’s Ferry
Preparation Co ., 602 F.2d 589, 591-92 (3d Cir. 1979), cert. denied ,
444 US 1015 (1980), the court stated that “the statute makes clear that the
concept that was to be conveyed by the word [“mine”] is much more encompassing
than the usual meaning attributed to it—the word means what the statute says it
means.”

[26]
The Commission generally considers whether the
equipment “used in” coal preparation or extraction is “essential to” or “integral
to” the process. See Maxxim Rebuild Co., LLC , 38 FMSHRC 605, 607 (Apr.
2016).

[27]
And not by reference to the folk notion of two
Commissioners in the majority who declare that the technical definition of a
“mine” in the Act cannot possibly encompass trucks parked immediately adjacent
to mine property.

[28]
See also Justis Supply & Machine Shop , 22 FMSHRC 1292, 1296 (Nov. 2000) (finding MSHA
jurisdiction over a dragline assembly site where the record demonstrates that
the dragline was intended for use at a nearby mine).

[29] My colleagues rely upon U.S. Dept of Labor v.
Ziegler Coal Co. , 853 F.2d 529 (7th Cir. 1988), in which the court reviews
a decision of the Benefits Review Board. Slip op. at 13. Because Ziegler
neither concerns a decision of the Federal Mine Safety and Health Review
Commission, nor MSHA jurisdiction, it is not relevant to our inquiry. 

[30]
The Sixth Circuit’s decision in Maxxim is
not binding on a case arising in the Fourth Circuit. As Maxxim is
inconsistent with the plain language of section 3(h)(1) of the Mine Act, as
well as its legislative history and Commission precedent, I believe it was
wrongly decided. However, as demonstrated infra , even under the Sixth
Circuit’s narrow interpretation of section 3(h)(1), the Judge’s decision in
this case should be affirmed. 

[31]
The Commission concluded that under the plain
language of section 3(h)(1)(C) the shop was subject to MSHA jurisdiction
because it was a “facility” that was “used in” the process of “extracting” and
preparing coal; the Maxxim facility worked on equipment that was integral to
the mining process. 38 FMSHRC 605, 607 (Apr. 2016). Substantial evidence
supported the Judge’s conclusion that a significant part of the work performed
at the shop was mining related. Id . at 608.   

[32]
Considering the location of the equipment as
circumstantial evidence of function, while also requiring direct evidence of
the equipment’s function, helps to address KC Transport’s concerns regarding
overbroad MSHA jurisdiction. For example, certain implications can logically be
drawn if a truck is parked at its manufacturer’s warehouse versus being parked
at a mine operator’s on-site repair shop. 

[33]
The Judge primarily conducted a functional
analysis, finding that the trucks perform “an integral part of the mining and
preparation process” by transporting coal from the mines to the prep plant, and
“the maintenance of the trucks at the facility is [also] essential to the coal
hauling and preparation process.” 42 FMSHRC at 237-38. However, the Judge also
states that “the location of the trucks and the maintenance facility matter.” Id .
at 237. Essentially, in so doing, he was stating that location can serve as
evidence that the equipment is “used in” the extraction or preparation of coal.

[34] Jennica Bellanca, Mining Project: Characterization
of Haul Truck Health and Safety Issues , The National Institute for
Occupational Safety and Health (NIOSH),
www.cdc.gov/niosh/mining/researchprogram/projects/index.html.

[35] MSHA, Fatality Alert #11 & #12 - October 31,
2017 , Mine Safety and Health Administration,
www.msha.gov/data-reports/fatality-reports/2017/fatality-11-12-october-31-2017/fatality-alert.

[36]
MSHA: ‘Work with us’ as powered haulage,
other concerns persist , Safety and
Health Magazine, www.safetyandhealthmagazine.com/articles/22065-msha-work-with-us-as-powered-haulage-other-concerns-persist .

[37] MSHA, October 19, 2021 Fatality - Fatality Alert ,
Mine Safety and Health Administration,
www.msha.gov/data-reports/fatality-reports/2021/october-19-2021-fatality/fatality-alert.

[38] The mandatory safety standard at 30 C.F.R. §
77.1606(a) states that “[m]obile loading and haulage equipment shall be
inspected by a competent person before such equipment is placed in operation,” and
that safety defects shall be “recorded and reported.”  

[39]
Bruce Rolfson, Federal Workplace Safety
Inspector Numbers Fall Under Biden , Bloomberg Law,
https://news.bloomberglaw.com/safety/federal-workplace-safety-inspector-numbers-tumble-under-biden.

[40] David Michaels
and Jordan Braab, The Occupational Safety and Health Administration at 50:
Protecting Workers in a Changing Economy , National Library of Medicine, www.ncbi.nlm.nih.gov/pmc/articles/PMC7144438/.

[41] The Mine Act
also provides miners with other enhanced protections that are absent from the
Occupational Safety and Health Act, including the right to temporary
reinstatement to their position if fired for engaging in protected safety
related activity. 30 U.S.C. § 815(c)(2).

Furthermore,
MSHA inspectors have been granted greater access to inspect properties as
compared to their OSHA counterparts. Cf. Marshall v. Barlow's, Inc. ,
436 U.S. 307 (1978) (warrantless inspection under the OSH Act violates the 4th
amendment); Donovan v. Dewey , 452 U.S. 594, 606 (1981) (warrantless Mine
Act inspections are “constitutionally permissible”).