POWER FUELS, LLC, Pеtitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration, Respondents.
No. 14-1450.
United States Court of Appeals, Fourth Circuit.
Decided: Jan. 27, 2015.
214
III.
We thus grant Ilunga‘s petition for review insofar as it challenges the denial of his application for asylum, and we vacate the BIA and IJ‘s orders with regard thereto.5 We remand the case to the BIA for further proceedings consistent with this opinion. If the BIA chooses to further remand the mаtter to an IJ, we recommend that it schedule the case before a different judge.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.
ARGUED: Wade Wallihan Massie, Penn, Stuart & Eskridge, Abingdon, Virginia, for Petitioner. Tamara Yael Hoflejzer Burnett, United States Department of Labor, Arlington, Virginia, for Respondents.
ON BRIEF: Seth M. Land, Penn, Stuart & Eskridge, Abingdon, Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor, Heidi W. Strassler, Associate Solicitor, W. Christian Schumann, Appellate Litigation, Sara L. Johnson, United States
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Petition for review denied by published opinion. Judge WILKINSON wrote the opinion, in which Judge GREGORY and Judge DUNCAN joined.
WILKINSON, Circuit Judge:
Power Fuels, LLC, petitions for review of a final order of the Federal Mine Safety and Health Review Commission. Power Fuels operates a facility that receives, blends, stores, and delivers coal to meet the specifications of a power plant located across the road. The Department of Labor‘s Mine Safety and Health Administration (“MSHA“) asserted jurisdiction over the facility under the Federal Mine Safety and Health Act оf 1977 (“Mine Act“).
The Mine Act covers operators of a “coal or other mine,” including facilities engaged in the “work of preparing coal.”
I.
The parties do not dispute the facts underlying this case. In any event, we will sustain the Commission‘s factual findings so long as they are “supported by substantial evidence on the record considered as a whole.”
A.
Power Fuels owns and operates a coal-blending terminal in Wise County, Virginia. At this site, Power Fuels receives, tеsts, weighs, samples, mixes, blends, stores, loads, and transports coal for its customer, Virginia Electric and Power Company, doing business as Dominion Virginia Power. Dominion runs a power plant, the Virginia City Hybrid Energy Center, which produces electricity from coal and biomass. Power Fuels’ blending terminal and Dominion‘s plant are situated on adjoining properties.
Power Fuels works as a contractor for Dominion under a formal agreement. The products provided by Power Fuels include coal and coal refuse, or “gob.” Power Fuels mixes an estimated average of eight thousand tons of coal per day for Dominion at the blending terminal, and the facility stores an eight-day supply of fuel for Dominion‘s use. Dominion owns all the coal that Power Fuels prepares. Approximately eighty percent of the fuel consumed at Dominion‘s plant passes through Power Fuels’ blending terminal, while the remaining twenty percent cоmes to the plant from other locations.
Power Fuels blends the coal according to the precise specifications provided daily by Dominion to ensure a proper reaction at the power plant. After the coal arrives, Power Fuels samples it and moves the material into separate piles, and it then uses equipment at the facility to blend the coal as directed by Dominion. Dominion‘s orders specify, for examрle, the number of buckets of each material to be used in the desired blend, as well as moisture, ash, sulfur, and BTU content. Under the companies’ agreement, Power Fuels may recommend modifications of Dominion‘s order, but it must blend the coal as instructed unless Dominion decides
B.
Dominion‘s plant and Power Fuels’ terminal both began operations in 2011. The following year, an inspector from MSHA noticed trucks delivering coal to the Power Fuels site. The agency was unaware at the time of any coal-preparation facilities operating there. An investigator from MSHA then visited the site and observed that Power Fuels was blending, storing, and loading coal for the power plant across the road. Following a review by MSHA and the Department of Labor‘s Office of the Solicitor, the Secretary determined that the blending terminal was subject to MSHA‘s jurisdiction.
Once MSHA asserted jurisdiction, the agency began performing inspections of the facility. In April 2013, an inspector issued three citations to Power Fuels for violations of MSHA standards involving the trucks’ braking systems and warning devices. See
Power Fuels contested the three initial citations on the ground that it was not the operаtor of a mine for the purposes of the Mine Act, and that MSHA consequently lacked jurisdiction. In November 2013, an administrative law judge for the Federal Mine Safety and Health Review Commission held an evidentiary hearing. In a March 2014 decision, the ALJ concluded that Power Fuels was engaged in the “work of preparing the coal” under the Mine Act.
Power Fuels filed a petition for discretionary review with the Commission. The Commission declined to grant review, and consequently the ALJ‘s decision became the final order of the Commission. See
II.
A.
The Mine Act specifically protects the safety and health of individuals who work in a “coal or other mine.”
In practice, then, the regulatory dynamic involves displacement: MSHA may “exercise[] its statutory authority under the Mine Act in such a way as to preempt OSHA‘s regulatory jurisdiction under the OSH Act.” United Energy Servs., Inc. v. Fed. Mine Safety & Health Admin., 35 F.3d 971, 977 (4th Cir.1994). The OSH Act is “comprehensive,” Martin v. Occupational Safety & Health Review Comm‘n, 499 U.S. 144, 147 (1991), but it also affords space for specialized regulatory schemes. The Secretary of Labor administers both the Mine Act and the OSH Act and determines initially whether a workplace falls under the jurisdiction of MSHA, rather than OSHA. See, e.g., Sec‘y of Labor v. Nat‘l Cement Co. of Cal., 494 F.3d 1066, 1073 (D.C.Cir.2007).
The regulatory systems administered by MSHA and OSHA share many similarities, but the differences—in scope and enforcement—may hold significant implications for an employer and its emрloyees. For example, although OSHA has established extensive workplace standards for toxic and hazardous substances, see
B.
With the Mine Act, Congress fashioned a law that is not only tailored to a specific industry, but also comprehensive in its coverage. The force of the statute is evident even from Congress‘s preliminary declarations.
The Mine Act is also a broadly written statute. “Each coal or other mine” is subject to the coverage of the Mine Act,
lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property inсluding impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities.
As the statutory text makes clear, the coverage of the Mine Act is not limited to extractive activities only. The Act, crucially, extends to a variety of activities involved in preparing coal. The statute‘s jurisdictional reach is deliberately broad, and the concomitant definitions are not rigid. As the Senate Committee Report stated, “what is considered to be a mine and to be regulated under this Act” ought to “be given the broadest possibl[e] interpretation,” and any “doubts” about jurisdiction ought to “be resolved in favor of inclusion of a facility within the coverage of the Act.” S.Rep. No. 95-181, at 14 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3414. In sum, Congress concluded that the workplace hazards associated with mining coal or other minerals required safety and health measures specifically tailored to the industry. Congress thus produced a comprehensive statute to ensure that the people who face such dangers—even workers involved not in extraction but in preparation—would be protected.
III.
Power Fuels contends that MSHA‘s jurisdiction under the Mine Act does not reach the company‘s blending terminal. According to Power Fuels, the facility simply blends and stores coal as directed by a utility, and it does not undertake the type of work usually performed by the operator of a coal mine. But the Mine Act plainly says that a covered coal mine may engage in the “work of preparing coal,”
A.
Power Fuels’ blending terminal is the type of facility that is subject to the Mine Act. The Mine Act enables MSHA to regulate “[e]ach coal or other mine,” “each operator of such mine,” and “every miner in such mine.”
At the blending terminal, Power Fuels receives, tests, weighs, samples, mixes, blends, stores, loads, and transports coal
B.
It is further evident that the type of work performed by Power Fuels comes within the purview of the Mine Act. The Act‘s definition of “coal or other mine” refers to the “work of preparing coal.”
Beyond the enumerated activities, the “work of preparing the coal” also encompasses “such other work of preparing such coal as is usually done by the operator of the coal mine.”
We think this phrase is onе of inclusion, not exclusion. It broadens the range of activities covered rather than limiting them. Indeed, the statute tells us that the “work of preparing the coal” includes the enumerated verbs “and” also this “other work.”
Our interpretation accords not only with the grammatically sound meaning of this provision, but also with the mode of analysis mandated by precedent. This court has explained that the Mine Act “sets forth a functional analysis, not one turning on the identity of the consumer.” United Energy Servs., Inc. v. Fed. Mine Safety &Health Admin., 35 F.3d 971, 975 (4th Cir. 1994). We have emphasized that “the proper focus of our analysis is on the safety of mining operations,” and indeed it is highly significant if a company‘s “employees are subject to the same risks as any other employee engaged in the ‘work of preparing coal.‘” Id. The inquiry turns on how the facility uses the coal and whether the employees are exposed to the sаfety and health hazards associated with coal-preparation activities. The text of the statute, which defines “coal or other mine” and the “work of preparing the coal,” provides basic tools for this functional test.
Power Fuels contends that this interpretation admits no limitation. That is incorrect. The limitations are expressed in the statute itself. The Mine Act covers those sites used for the “work of preparing coal,” including “custom coal preparation facilities,” like that operated by Power Fuels.
By contrast, Power Fuels’ suggested approach may herald a return to the era before the Mine Act was enacted in 1977. One predecessor statute, the Federal Coal Mine Safety Act, ch. 877, 66 Stat. 692 (1952), covered a much narrower range of coal operations. Under this 1952 statute, a “mine” was used only for the “work of extracting . . . coal” and the “work of processing the coal so extracted” by the mine operator. § 201(a)(7), 66 Stat. at 692 (emphasis added). The “work of processing the coal” was restricted to that “usually done by the operator,” and it specifically excluded processing activities “usually done by a consumer or others.” Id. Seventeen years later, Congress broadened the statutory coverage in the Federal Coal Mine Health and Safety Act of 1969, Pub.L. No. 91-173, 83 Stat. 742. The 1969 legislation defined a “coal mine” as involved in the “work of extracting . . . coal” and the “work of preparing the coal so extracted,” and the term‘s meaning expressly included “custom coal preparation facilities.” § 3(h), 83 Stat. at 744. The revisеd law spoke of “preparing” rather than “processing” coal, and it eliminated the language from the 1952 statute that had excluded coal processing usually done by a consumer or other actors. § 3(h), (i), 83 Stat. at 744. Finally, in 1977, Congress passed the Mine Act, integrating safety and health protections for miners of coal and other minerals into one statute—covering such workers whether they are engaged in extraction, milling, or prepara-
The 1977 Mine Act has driven the functional analysis employed by this court. We decline the invitation to interpret the Mine Act in a way that returns extraction, or other outmoded distinctions, to the center of the analysis. Such an approach might have been appropriate under the legislative framework that prevailed a half century ago. It is not today.
C.
The parties disagree over the degree of deference we owe to the Secretary of Labor‘s interpretation. The basic question is whether we should defer to the Secretary‘s interpretation so long as it is reasonable, Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984), or whether his interpretation is entitled to respect only to the extent of its “power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). But we need not explore that issue. Cоngress‘s intent in the Mine Act is plain, and “[i]f the intent of Congress is clear, that is the end of the matter.” Chevron, 467 U.S. at 842; see also id. at 843 n. 9. In any event, the Secretary‘s interpretation here warrants respect. See Sec‘y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 114-15 & n. 3 (4th Cir.1996). The Secretary, after all, is the administrator charged with overseeing the borderline between the background regulations of OSHA and the specialized regulations of MSHA. We have been instructed not to “waste [our] time in the mental acrobatics needed to decide whether an agency‘s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.‘” City of Arlington v. FCC, 133 S.Ct. 1863, 1870 (2013). Instead we are asked to decide, “simply, whether the statutory text forecloses the agency‘s assertion of authority, or not.” Id. at 1871. In this instance, it does not.
IV.
For the foregoing reasons, the petition for review is denied.
PETITION FOR REVIEW DENIED
WILKINSON
CIRCUIT JUDGE